Restricted Payments. (a) 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 (A) dividends or distributions accrued or payable in Equity Interests (other than Disqualified Interests) of the Company or (B) 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 the Company (other than any such Equity Interests owned by the Company or any Restricted Subsidiary of the Company); (iii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness that is subordinated to the Notes or any Note Guarantee (other than Indebtedness permitted under clause (vi) of the definition of “Permitted Debt”) except (a) a payment of interest or principal at Stated Maturity or (b) the purchase, repurchase or other acquisition of any such Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case, due within one year of the date of such purchase, repurchase or other acquisition; or (iv) make any Restricted Investment (all such payments and other actions set forth in clauses (i) through (iv) above being collectively referred to as “Restricted Payments”), unless, at the time of and after giving effect to such Restricted Payment: (A) no 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 Fixed Charge Coverage Ratio test set forth in Section 4.09(a); and (C) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after August 27, 2012 (excluding Restricted Payments permitted by clauses (i) (provided that at the time of declaring such dividend, such dividend was counted as a Restricted Payment) (ii), (iii), (iv), (v), (vi), (vii), (viii), (ix), (x), (xi), (xii), (xiii), (xiv) and (xv) of Section 4.07(b)), is less than the sum, without duplication, of (1) 50% of the Consolidated Net Income of the Company for the period (taken as one accounting period) from April 2, 2012 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 (2) 100% of the aggregate net proceeds, including the fair market value of any property or Capital Interests, received by the Company since August 27, 2012 as a contribution to its equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified Interests) or from the issue or sale of Disqualified Interests or debt securities of the Company that have been converted into such Equity Interests (other than Equity Interests (or Disqualified Interests or convertible debt securities) sold to a Subsidiary of the Company), together with the aggregate cash and Cash Equivalents received by the Company or any of its Restricted Subsidiaries at the time of such conversion or exchange plus the amount by which Indebtedness of the Company and its Restricted Subsidiaries is reduced upon the conversion or exchange subsequent to August 27, 2012 of any Indebtedness or Disqualified Interests which are convertible into or exchangeable for Qualified Capital Interests of the Company or any of its Restricted Subsidiaries, plus (3) 100% of the amount received, including the fair market value of any property received after August 27, 2012 by means of (A) the sale or other disposition (other than to the Company or a Restricted Subsidiary) of Restricted Investments made by the Company or its Restricted Subsidiaries and repurchases and redemptions of such Restricted Investments from the Company or its Restricted Subsidiaries and repayments of loans or advances which constitute Restricted Investments of the Company or its Restricted Subsidiaries or (B) the sale (other than to the Company or a Restricted Subsidiary) of the Capital Interests of an Unrestricted Subsidiary or a distribution from an Unrestricted Subsidiary (other than in each case to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment) or a dividend from an Unrestricted Subsidiary, plus (4) in the case of the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary or the merger or consolidation of an Unrestricted Subsidiary into the Company or a Restricted Subsidiary or the transfer of assets of an Unrestricted Subsidiary to the Company or a Restricted Subsidiary, the fair market value of the Investment in such Unrestricted Subsidiary (other than an Unrestricted Subsidiary to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment), plus (5) $141.0 million. The Board of Directors 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 in the Subsidiary so designated will be deemed to be Restricted Payments or Permitted Investments, in the Company’s discretion, at the time of such designation and will reduce the amount available for Restricted Payments or Permitted Investments, as applicable. 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 Payments or Permitted Investments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. (b) Section 4.07(a) shall not prohibit: (i) the payment of any dividend or other distribution or redemption within 60 days after the date of declaration or call for redemption thereof, if at said date of declaration or call for redemption such payment would have complied with the provisions of this Indenture; (ii) the making of any Restricted Payment in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Subsidiary of the Company) of, Equity Interests of the Company (other than any Disqualified Interests) or from a contribution of capital to the Company; 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 Section 4.07(a)(C)(2); (iii) the defeasance, redemption, repurchase, replacement, extension, renewal, refinancing or retirement or other acquisition of subordinated Indebtedness or Disqualified Interests in exchange for or with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness; (iv) the declaration, or payment of any dividend or other distribution 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 current or former officer, director, employee, consultant or agent of Company or any of its Restricted Subsidiaries (or Heirs or other permitted transferees thereof) upon death, disability, retirement, severance or termination of employment or service or in connection with a stock option plan or agreement, shareholders agreement, or similar agreement, plan or arrangement, including amendments thereto; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may not exceed: (A) $10.0 million in any calendar year, with unused amounts being available to be used in any later calendar year; provided that such amount in any calendar year may be increased in an amount not to exceed the net cash proceeds from the sale of Equity Interests (other than Disqualified Interests) of the Company to any officer, director, employee or agent of the Company or any Subsidiary of the Company that occurs after the date of this Indenture, to the extent such net cash proceeds have not otherwise been applied to make Restricted Payments pursuant to Section 4.07(a)(C)(2); plus (B) the cash proceeds of key man life insurance policies received by the Company and its Restricted Subsidiaries after the date of this Indenture that are used for the repurchase, redemption or other acquisition or retirement for value owned by the individual (or such individual’s estate) that is the subject of such insurance; (vi) the repurchase of Equity Interests deemed to occur upon the exercise of options, warrants or other convertible securities to the extent such Equity Interests represent a portion of the exercise price of those options, warrants or other convertible securities and cash payments in lieu of the issuance of fractional shares in connection with the exercise of options, warrants, or other convertible securities; (vii) the declaration and payment of regular quarterly dividends on the Company’s Equity Interests in accordance with past practice and not to exceed $0.05 per share; (viii) additional Restricted Payments not to exceed $150.0 million after August 27, 2012; (ix) the repurchase of the Company’s Equity Interests in an amount not to exceed $50.0 million after August 27, 2012; (x) distributions or payments of Securitization Fees and purchases of Securitization Assets pursuant to a Securitization Repurchase Obligation in connection with a Qualified Securitization Financing; (xi) any payments made in connection with the consummation of the transactions on substantially the terms described in the Offering Memorandum; (xii) the payment of intercompany subordinated debt, the incurrence of which was permitted under Section 4.09(b)(vi); (xiii) the purchase of fractional shares by the Company upon conversion of any securities of the Company into Capital Interests of the Company; (xiv) the repurchase, redemption or other acquisition or retirement for value of subordinated Indebtedness or Disqualified Interests pursuant to the provisions similar to those described under Section 4.14 and Section 4.10; provided that all Notes tendered by Holders of the Notes in connection with the related Change of Control Offer or Asset Sale Offer, as applicable, have been repurchased, redeemed or acquired for value in full; and (xv) payment of dividends on Disqualified Interests of the Company or a Restricted Subsidiary, the issuance of which is permitted by this Indenture. (c) 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 Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall be determined by an officer of the Company. In the event that a Restricted Payment meets the criteria of more than one of the exceptions described in (i) through (xv) above or is entitled to be made pursuant to the first paragraph of this covenant, the Company may, in its sole discretion, classify, and may later reclassify from time to time, such Restricted Payment or any portion thereof into or among any of such applicable provisions.
Appears in 4 contracts
Samples: Indenture (Belden Inc.), Indenture (Belden Inc.), Indenture (Belden Inc.)
Restricted Payments. (a) 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 its 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 (A) dividends or distributions accrued or payable (x) solely in Equity Interests (other than Disqualified InterestsStock) of the Company or (By) dividends or distributions in the case of the Company and its Restricted Subsidiaries, to the Company or a Restricted Subsidiary of the Companythereof);
(iib) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the CompanyCompany or any of its Restricted Subsidiaries) any Equity Interests of the Company or any direct or indirect parent Parent of the Company or any Restricted Subsidiary of the Company (other than than, in the case of the Company and its Restricted Subsidiaries, any such Equity Interests owned by the Company or any of its Restricted Subsidiary of the CompanySubsidiaries);; or
(iiic) 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 (other than intercompany Indebtedness among the Company and its Restricted Subsidiaries that is permitted to be incurred under this Supplemental Indenture) that is subordinated to the Notes or any Note Guarantee (other than Indebtedness permitted under clause (vi) of the definition of “Permitted Debt”) Notes, except (a) a payment of interest or principal at the Stated Maturity or (b) the purchase, repurchase or other acquisition of any such Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case, due within one year of the date of such purchase, repurchase or other acquisition; or
(iv) make any Restricted Investment thereof (all such payments and other actions set forth in clauses (ia) through (ivc) 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 under this Indenture shall have occurred and be continuing or would occur as a consequence thereof;
(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 Fixed Charge Coverage Leverage Ratio test set forth in the first paragraph of Section 4.09(a)4.10; and
(C3) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries from and after August 27April 1, 2012 2010 (excluding Restricted Payments permitted by clauses (i2) through (provided that 17) of the next succeeding paragraph and made on or after April 1, 2010), shall not exceed, at the time date of declaring such dividenddetermination, such dividend was counted as a Restricted Payment) (ii), (iii), (iv), (v), (vi), (vii), (viii), (ix), (x), (xi), (xii), (xiii), (xiv) and (xv) of Section 4.07(b)), is less than the sum, without duplication, sum of:
(1a) 50an amount equal to 100% of the Consolidated Net Income EBITDA of the Company for the period (taken as one accounting period) from beginning on the first day of the fiscal quarter commencing April 21, 2012 2010 to the end of the Company’s most recently ended full fiscal quarter for which internal financial statements are available at available, taken as a single accounting period, less the time product of such Restricted Payment (or, if such 1.3 times the Consolidated Net Income Interest Expense of the Company for such period is a deficitperiod, less plus
(b) an amount equal to 100% of Capital Stock Sale Proceeds (reduced for purpose of this clause (b) by (A) any amount of such deficitCapital Stock Sale Proceeds (i) used in connection with an Investment made on or after the Issue Date pursuant to clause (5) of the definition of “Permitted Investments,” (ii) applied to make a Restricted Payment pursuant to clause (2) or sub-clause (y)(2) of clause (9) or clause (14) below, or (iii) relied upon for purposes of incurring Contribution Indebtedness and (B) the amount of Restricted Payments made pursuant to sub-clause (A)(i), (B) or (C) of clause (8) and sub-clause (y)(1) of clause (9) below, in each case, by an amount not to exceed the amount of Capital Stock Sale Proceeds from any Charter Subsidiary Refinancing Indebtedness or Charter Parent Refinancing Indebtedness), plus
(2) 100% of the aggregate net proceeds, including the fair market value of any property or Capital Interests, received by the Company since August 27, 2012 as a contribution to its equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified Interests) or from the issue or sale of Disqualified Interests or debt securities of the Company that have been converted into such Equity Interests (other than Equity Interests (or Disqualified Interests or convertible debt securities) sold to a Subsidiary of the Company), together with the aggregate cash and Cash Equivalents received by the Company or any of its Restricted Subsidiaries at the time of such conversion or exchange plus the amount by which Indebtedness of the Company and its Restricted Subsidiaries is reduced upon the conversion or exchange subsequent to August 27, 2012 of any Indebtedness or Disqualified Interests which are convertible into or exchangeable for Qualified Capital Interests of the Company or any of its Restricted Subsidiaries, plus
(3) 100% of the amount received, including the fair market value of any property received after August 27, 2012 by means of (A) the sale or other disposition (other than to the Company or a Restricted Subsidiary) of Restricted Investments made by the Company or its Restricted Subsidiaries and repurchases and redemptions of such Restricted Investments from the Company or its Restricted Subsidiaries and repayments of loans or advances which constitute Restricted Investments of the Company or its Restricted Subsidiaries or (B) the sale (other than to the Company or a Restricted Subsidiary) of the Capital Interests of an Unrestricted Subsidiary or a distribution from an Unrestricted Subsidiary (other than in each case to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment) or a dividend from an Unrestricted Subsidiary, plus
(4) in the case of the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary or the merger or consolidation of an Unrestricted Subsidiary into the Company or a Restricted Subsidiary or the transfer of assets of an Unrestricted Subsidiary to the Company or a Restricted Subsidiary, the fair market value of the Investment in such Unrestricted Subsidiary (other than an Unrestricted Subsidiary to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment), plus
(5c) $141.0 million2.0 billion. The Board of Directors 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 in the Subsidiary so designated will be deemed to be Restricted Payments or Permitted Investments, in the Company’s discretion, at the time of such designation and will reduce the amount available for Restricted Payments or Permitted Investments, as applicable. 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 Payments or Permitted Investments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary.
(b) Section 4.07(a) preceding provisions shall not prohibit:
(i1) the payment of any dividend or other distribution or redemption within 60 days after the date of declaration or call for redemption thereof, if at said the date of declaration or call for redemption such payment would have complied with the provisions of this Supplemental Indenture;
(ii2) the making redemption, repurchase, retirement, defeasance or other acquisition of any Restricted Payment subordinated Indebtedness of the Company in exchange for, or out of the net cash proceeds of of, the substantially concurrent sale (other than to a Subsidiary of the Company) of, Equity Interests of the Company (other than any Disqualified Interests) or from a contribution of capital to the Company; 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 Section 4.07(a)(C)(2Stock);
(iii3) the defeasance, redemption, repurchase, replacement, extension, renewal, refinancing or retirement repurchase or other acquisition of subordinated Indebtedness of the Company or Disqualified Interests in exchange for or any of its Restricted Subsidiaries with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness;
(iv4) the declaration, or payment of any dividend or other distribution distribution, which need not be pro rata, to the extent necessary to permit direct or indirect Beneficial Owners of shares of Capital Stock of the Company to pay federal, state or local income tax liabilities that would arise solely from income of the Company or any of its Restricted Subsidiaries, as the case may be, for the relevant taxable period being attributable to them;
(5) the payment of any dividend by a Restricted Subsidiary of the Company to the holders of its common Equity Interests on a pro rata basis;
(v6) the repurchase, redemption or other acquisition or retirement for value value, or the payment of any dividend or distribution to the extent necessary to permit the repurchase, redemption or other acquisition or retirement for value, of any Equity Interests of the Company or any Subsidiary a Parent of the Company held by any current member of the Company’s or former officer, director, employee, consultant such Parent’s management pursuant to any management equity subscription agreement or agent stock option agreement entered into in accordance with the policies of the Company or any of its Restricted Subsidiaries (or Heirs or other permitted transferees thereof) upon death, disability, retirement, severance or termination of employment or service or in connection with a stock option plan or agreement, shareholders agreement, or similar agreement, plan or arrangement, including amendments theretoParent; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may shall not exceed: exceed $50.0 million in any fiscal year of the Issuers;
(7) payment of fees in connection with any acquisition, merger or similar transaction in an amount that does not exceed an amount equal to 1.25% of the transaction value of such acquisition, merger or similar transaction;
(8) (A) $10.0 million in additional Restricted Payments directly or indirectly to any calendar yearParent (i) for the purpose of enabling any Parent to pay interest when due on Indebtedness under any Charter Parent Refinancing Indebtedness or (ii) so long as no Default has occurred and is continuing and the Company would have been permitted, with unused amounts being available to be used in any later calendar year; provided that at the time of such amount in any calendar year may be increased in an amount not to exceed Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the net cash proceeds from the sale of Equity Interests (other than Disqualified Interests) beginning of the Company applicable quarter period, to incur at least $1.00 of additional Indebtedness pursuant to the Leverage Ratio test set forth in the first paragraph of Section 4.10, consisting of dividends or distributions to the extent required to enable any officerParent to defease, directorredeem, employee repurchase, prepay, repay, discharge or agent otherwise acquire or retire for value Indebtedness under any Charter Parent Refinancing Indebtedness (including any expenses and fees incurred by any Parent in connection therewith); (B) so long as no Default has occurred and is continuing, Restricted Payments used to defease, redeem, repurchase, prepay, repay, discharge or otherwise acquire or retire for value Indebtedness under any Charter Parent Refinancing Indebtedness or consisting of purchases, redemptions or other acquisitions by the Company or its Restricted Subsidiaries of Indebtedness under any Subsidiary of the Company that occurs after the date of this Indenture, to the extent such net cash proceeds have not otherwise been applied to make Restricted Payments pursuant to Section 4.07(a)(C)(2); plus Charter Parent Refinancing Indebtedness (B) the cash proceeds of key man life insurance policies received including any expenses and fees incurred by the Company and its Restricted Subsidiaries in connection therewith) and the distribution, loan or investment to any Parent of Indebtedness so purchased, redeemed or acquired; or (C) Restricted Payments for the purpose of enabling any Parent to (i) pay interest when due on Indebtedness under any Charter Subsidiary Refinancing Indebtedness or (ii) to defease, redeem, repurchase, prepay, repay, discharge or otherwise acquire or retire for value Indebtedness under any Charter Subsidiary Refinancing Indebtedness (including any expenses and fees incurred by the Company and its Restricted Subsidiaries in connection therewith);
(9) Restricted Payments directly or indirectly to any Parent regardless of whether a Default exists (other than an Event of Default under paragraph (1), (2), (7) or (8) of Section 6.01), for the purpose of enabling such Person (A) to pay interest on and (B) so long as 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 date beginning of this Indenture the applicable quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Leverage Ratio test set forth in the first paragraph of Section 4.10 to defease, redeem, repurchase, prepay, repay, discharge or otherwise acquire or retire, in each case, Indebtedness of such Parent (x) which is not held by another Parent and (y) to the extent that the net cash proceeds of such Indebtedness are or were used for the repurchase(1) payment of interest or principal (or premium) on any Indebtedness of a Parent (including (A) by way of a tender, redemption or other acquisition or retirement for value owned by the individual (or such individual’s estate) that is the subject prepayment of such insuranceIndebtedness and (B) amounts set aside to prefund any such payment), (2) direct or indirect (including by way of a contribution of property and/or assets purchased with such net cash proceeds) Investment in the Company or any of its Restricted Subsidiaries or (3) payment of amounts that would be permitted to be paid by way of a Restricted Payment under clause (10) immediately below (including the expenses of any exchange transaction);
(vi10) the repurchase Restricted Payments directly or indirectly to any Parent of (A) attorneys’ fees, investment banking fees, accountants’ fees, underwriting discounts and commissions and other customary fees and expenses (including any commitment and other fees payable in connection with Credit Facilities) actually incurred in connection with any issuance, sale or incurrence by such Parent of Equity Interests deemed or Indebtedness, or any exchange of securities or tender for outstanding debt securities, or (B) the costs and expenses of any offer to occur upon the exercise of options, warrants or other convertible exchange privately placed securities to the extent such Equity Interests represent a portion in respect of the exercise price of those options, warrants foregoing for publicly registered securities or other convertible securities and cash payments in lieu of the issuance of fractional shares in connection with the exercise of options, warrants, or other convertible securitiesany similar concept having a comparable purpose;
(vii11) the redemption, repurchase, retirement or other acquisition of any Equity Interests of the Company or Indebtedness of the Issuers or any Equity Interests of any direct or indirect parent of the Company, in exchange for, or out of the proceeds of the substantially concurrent sale (other than to an Issuer or a Restricted Subsidiary) of, Equity Interests of the Company or any direct or indirect parent of the Company (in each case, other than any Disqualified Stock);
(12) the declaration and payment of regular quarterly dividends on to holders of any class or series of Disqualified Stock of the Company’s Equity Interests Issuers or any Restricted Subsidiary issued in accordance with past practice Section 4.10;
(13) so long as no Default has occurred and is continuing, other Restricted Payments in an aggregate amount outstanding taken together with all other Restricted Payments made pursuant to this clause (13) not to exceed $0.05 per share100.0 million outstanding at any one time;
(viii14) additional Restricted Payments not to exceed $150.0 million after August 27, 2012;
(ix) the repurchase pay all or a portion of the Company’s consideration payable for any Investment that would have been permitted to be made by the Issuers under this Indenture including, without limitation, the true up payments pursuant to the Bright House Acquisition Agreement; provided that the assets or Equity Interests acquired in an amount not such Investment (to exceed $50.0 million after August 27, 2012;
(x) distributions or payments the extent of Securitization Fees and purchases of Securitization Assets pursuant to a Securitization Repurchase Obligation in connection with a Qualified Securitization Financing;
(xi) any payments made in connection with the consummation of the transactions on substantially the terms described in the Offering Memorandum;
(xii) the payment of intercompany subordinated debt, the incurrence of which was permitted under Section 4.09(b)(vi);
(xiii) the purchase of fractional shares amounts distributed by the Company upon conversion of any securities of Issuers to make such Investment) are promptly contributed to the Company into Capital Interests capital of the Company;
(xiv15) the repurchaseso long as no Default or Event of Default has occurred and is continuing or would result therefrom, redemption or other acquisition or retirement for value of subordinated Indebtedness or Disqualified Interests pursuant to the provisions similar to those described under Section 4.14 and Section 4.10any Restricted Payments; provided that all Notes tendered by Holders of the Notes Leverage Ratio, after giving pro forma effect to such Restricted Payment, is less than or equal to 3.50 to 1.00;
(16) any distributions to any Parent to permit such Parent to pay (i) attorneys’ fees, investment banking fees, accountants’ fees, underwriting discounts and commissions and other customary fees and expenses (including any commitment and other fees payable in connection with credit facilities) actually incurred in connection with any issuance, sale or incurrence by such Parent of Equity Interests or Indebtedness, any exchange of securities or a tender for outstanding debt securities or any actual or proposed Investment, (ii) the related Change costs and expenses of Control Offer any offer to exchange privately placed securities in respect of the foregoing for publicly registered securities or Asset Sale Offerany similar concept having a comparable purpose or (iii) other administrative expenses (including legal, as applicableaccounting, have been repurchasedother professional fees and costs, redeemed or acquired for value printing and other such fees and expenses) incurred in fullthe ordinary course of business, in an aggregate amount in the case of this clause (iii) not to exceed $5.0 million in any fiscal year; and
(xv17) payment Restricted Payments in an aggregate amount not to exceed an amount equal to the sum of dividends on Disqualified Interests Total Leverage Excess Proceeds and Declined Excess Proceeds that has not been used to make any Investments pursuant to clause (21) of the Company or a Restricted Subsidiary, the issuance definition of which is permitted by this Indenture“Permitted Investments.
(c) ” 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 Subsidiary, as the case may be, any of its Restricted Subsidiaries 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 covenant shall be determined by an officer the Board of Directors of the Company, whose resolution with respect thereto shall be delivered to the Trustee. In 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 $100.0 million. Not later than the date of making any Restricted Payment other than in the form of cash having a fair market value in excess of $150.0 million, 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 Supplemental Indenture. For purposes of determining compliance with this Section 4.07, in the event that a Restricted Payment meets Payment, when made, met the criteria of more than one of the exceptions categories described in clauses (i1) through (xv17) above above, or is entitled to be made was permitted pursuant to the first paragraph of this covenantSection 4.07, the Company may, in its sole discretion, classify, and may later reclassify from time Issuers will be entitled to time, classify such Restricted Payment (or portion thereof) on the date of its payment or later reclassify such Restricted Payment (or portion thereof) in any portion thereof into or among any of such applicable provisionsmanner that complies with this Section 4.07.
Appears in 4 contracts
Samples: Indenture (Cco Holdings LLC), Fifth Supplemental Indenture (Cco Holdings Capital Corp), Fourth Supplemental Indenture (Cco Holdings Capital Corp)
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 (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 (A) dividends or distributions accrued or payable in Equity Interests (other than Disqualified InterestsStock) of the Company or (B) and other than dividends or distributions payable to the Company or a Restricted Subsidiary of the Company);
(ii2) purchase, redeem repurchase, redeem, defease 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 the Company (Company, in each case held by Persons other than any such Equity Interests owned by the Company or any a Restricted Subsidiary of the Company);
(iii3) make any principal payment on or with respect to, or purchase, repurchase, redeem, defease or otherwise acquire or retire for value any Subordinated Indebtedness that is subordinated to the Notes or any Note Guarantee (other than Indebtedness permitted under clause (vi) of the definition of “Permitted Debt”) except (a) a payment of interest or principal at Stated Maturity or (b) the payment, purchase, repurchase repurchase, redemption, defeasance, acquisition or other acquisition retirement of any such (i) intercompany Indebtedness between or among the Company and its Restricted Subsidiaries, and (ii) Subordinated Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturitymaturity thereof, in each case, case due within one year of the date of such payment, purchase, repurchase repurchase, redemption, defeasance, acquisition or other acquisitionretirement); or
(iv4) make any Restricted Investment (all such payments and other actions set forth in clauses (i1) through (iv4) 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 Fixed Charge Coverage Ratio test set forth in Section 4.09(a); and
(C3) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after August 27February 3, 2012 (excluding Restricted Payments permitted by clauses clause (i) (provided that at the time of declaring such dividend, such dividend was counted as a Restricted Payment) (ii2), (iii3), (iv4), (v5), (vi6), (vii7), (viii8), (9), (ix10), (x11), (xi12), (xii13), (xiii), 14) or (xiv) and (xv15) of Section 4.07(b)), is less than the sum, without duplication, of:
(1A) 50% of the cumulative Consolidated Net Income (excluding any dividends or distributions to the extent the Company elects to include such dividends or distributions in clause (14)(b) of the definition of “Permitted Investments” in accordance with such clause) of the Company for the period (taken as one accounting period) from April 2commencing on January 1, 2012 2012, 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 (Payment; or, if such Consolidated Net Income for such period is a deficit, less minus 100% of such deficit), plus
(2B) 100% of the aggregate net proceeds, proceeds (including the fair market value of any property or Capital Interests, other than cash) received by the Company since August 27(other than any net proceeds or assets received in connection with the contribution of assets pursuant to the Separation Agreement) after February 3, 2012 2012, as a contribution to its common equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified Interests) or from the issue or sale of Disqualified Interests or debt securities of the Company that have been converted into such Equity Interests (other than Equity Interests (or Disqualified Interests or convertible debt securities) sold to a Subsidiary of the Company), together with the aggregate cash and Cash Equivalents received by the Company or any of its Restricted Subsidiaries at the time of such conversion or exchange plus the amount by which Indebtedness of the Company and its Restricted Subsidiaries is reduced upon the conversion or exchange subsequent to August 27, 2012 of any Indebtedness or Disqualified Interests which are convertible into or exchangeable for Qualified Capital Interests of the Company or any of its Restricted Subsidiaries, plus
(3) 100% of the amount received, including the fair market value of any property received after August 27, 2012 by means of (A) the sale or other disposition (other than to the Company or a Restricted Subsidiary) of Restricted Investments made by the Company or its Restricted Subsidiaries and repurchases and redemptions of such Restricted Investments from the Company or its Restricted Subsidiaries and repayments of loans or advances which constitute Restricted Investments of the Company or its Restricted Subsidiaries or (B) the sale (other than to the Company or a Restricted Subsidiary) of the Capital Interests of an Unrestricted Subsidiary or a distribution from an Unrestricted Subsidiary (other than in each case to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment) or a dividend from an Unrestricted Subsidiary, plus
(4) in the case of the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary or the merger or consolidation of an Unrestricted Subsidiary into the Company or a Restricted Subsidiary or the transfer of assets of an Unrestricted Subsidiary to the Company or a Restricted Subsidiary, the fair market value of the Investment in such Unrestricted Subsidiary (other than an Unrestricted Subsidiary to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment), plus
(5) $141.0 million. The Board of Directors 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 in the Subsidiary so designated will be deemed to be Restricted Payments or Permitted Investments, in the Company’s discretion, at the time of such designation and will reduce the amount available for Restricted Payments or Permitted Investments, as applicable. 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 Payments or Permitted Investments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary.
(b) Section 4.07(a) shall not prohibit:
(i) the payment of any dividend or other distribution or redemption within 60 days after the date of declaration or call for redemption thereof, if at said date of declaration or call for redemption such payment would have complied with the provisions of this Indenture;
(ii) the making of any Restricted Payment in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Subsidiary of the Company) of, Equity Interests of the Company (other than any Disqualified Interests) or from a contribution of capital to the Company; 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 Section 4.07(a)(C)(2);
(iii) the defeasance, redemption, repurchase, replacement, extension, renewal, refinancing or retirement or other acquisition of subordinated Indebtedness or Disqualified Interests in exchange for or with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness;
(iv) the declaration, or payment of any dividend or other distribution 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 current or former officer, director, employee, consultant or agent of Company or any of its Restricted Subsidiaries (or Heirs or other permitted transferees thereof) upon death, disability, retirement, severance or termination of employment or service or in connection with a stock option plan or agreement, shareholders agreement, or similar agreement, plan or arrangement, including amendments thereto; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may not exceed: (A) $10.0 million in any calendar year, with unused amounts being available to be used in any later calendar year; provided that such amount in any calendar year may be increased in an amount not to exceed the net cash proceeds from the sale of Equity Interests (other than Disqualified Interests) of the Company to any officer, director, employee or agent of the Company or any Subsidiary of the Company that occurs after the date of this Indenture, to the extent such net cash proceeds have not otherwise been applied to make Restricted Payments pursuant to Section 4.07(a)(C)(2); plus (B) the cash proceeds of key man life insurance policies received by the Company and its Restricted Subsidiaries after the date of this Indenture that are used for the repurchase, redemption or other acquisition or retirement for value owned by the individual (or such individual’s estate) that is the subject of such insurance;
(vi) the repurchase of Equity Interests deemed to occur upon the exercise of options, warrants or other convertible securities to the extent such Equity Interests represent a portion of the exercise price of those options, warrants or other convertible securities and cash payments in lieu of the issuance of fractional shares in connection with the exercise of options, warrants, or other convertible securities;
(vii) the declaration and payment of regular quarterly dividends on the Company’s Equity Interests in accordance with past practice and not to exceed $0.05 per share;
(viii) additional Restricted Payments not to exceed $150.0 million after August 27, 2012;
(ix) the repurchase of the Company’s Equity Interests in an amount not to exceed $50.0 million after August 27, 2012;
(x) distributions or payments of Securitization Fees and purchases of Securitization Assets pursuant to a Securitization Repurchase Obligation in connection with a Qualified Securitization Financing;
(xi) any payments made in connection with the consummation of the transactions on substantially the terms described in the Offering Memorandum;
(xii) the payment of intercompany subordinated debt, the incurrence of which was permitted under Section 4.09(b)(vi);
(xiii) the purchase of fractional shares by the Company upon conversion of any securities of the Company into Capital Interests of the Company;
(xiv) the repurchase, redemption or other acquisition or retirement for value of subordinated Indebtedness or Disqualified Interests pursuant to the provisions similar to those described under Section 4.14 and Section 4.10; provided that all Notes tendered by Holders of the Notes in connection with the related Change of Control Offer or Asset Sale Offer, as applicable, have been repurchased, redeemed or acquired for value in full; and
(xv) payment of dividends on Disqualified Interests of the Company or a Restricted Subsidiary, the issuance of which is permitted by this Indenture.
(c) 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 Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall be determined by an officer of the Company. In the event that a Restricted Payment meets the criteria of more than one of the exceptions described in (i) through (xv) above or is entitled to be made pursuant to the first paragraph of this covenant, the Company may, in its sole discretion, classify, and may later reclassify from time to time, such Restricted Payment or any portion thereof into or among any of such applicable provisions.:
Appears in 3 contracts
Samples: Indenture (Post Holdings, Inc.), Indenture (Post Holdings, Inc.), Indenture (Post Holdings, Inc.)
Restricted Payments. (a) The Company shall Subject to Section 6.8(b), the Issuer will not, and shall will not permit any of its Restricted Subsidiaries to, directly or indirectly:
(i) declare or pay (without duplication) any dividend or make any other payment or distribution on account of the CompanyIssuer’s or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any payment in connection with any merger merger, consolidation or consolidation involving amalgamation of the Company Issuer or any of its Restricted Subsidiaries) or to the direct or indirect holders of the CompanyIssuer’s or any of its Restricted Subsidiaries’ Equity Interests in their capacity as such (other than dividends, payments or distributions (A) dividends or distributions accrued or payable in Equity Interests (other than Disqualified InterestsStock) of the Company Issuer or a Restricted Subsidiary or (B) dividends or distributions to the Company Issuer or a Restricted Subsidiary of the CompanyIssuer);
(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 the Company (Issuer held by Persons other than any such Equity Interests owned by the Company or any Restricted Subsidiary of the Company)Issuer’s Restricted Subsidiaries;
(iii) 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 to the Notes or any Note Guarantee (other than intercompany Indebtedness permitted under clause Section 6.9(b)(vi)), except: (vi) of the definition of “Permitted Debt”) except (aA) a payment of interest or payment of principal at the Stated Maturity thereof or (bB) the purchase, repurchase or other acquisition of any such Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case, case due within one year of the date of such purchase, repurchase or other acquisition; or
(iv) make any Restricted Investment Investment; (all such payments and other actions set forth in clauses (iSections 6.8(a)(i) through (iv6.8(a)(iv) above being are 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 will have occurred and be continuing or would occur as a consequence thereofof such Restricted Payment;
(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 Incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Fixed Charge Coverage Ratio test set forth in Section 4.09(a6.9(a); and
(C) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company Issuer and its Restricted Subsidiaries after August 27, 2012 since the Issue Date (excluding Restricted Payments permitted by clauses (i) (provided that at the time of declaring such dividend, such dividend was counted as a Restricted Payment) (iiSections 6.8(b)(iii), (iii6.8(b)(iv), (iv6.8(b)(v), (v6.8(b)(vi), (vi6.8(b)(vii), (vii), (viii), (ix), (x), (xi), (xii), (xiii), (xiv6.8(b)(viii) and (xv) of Section 4.07(b6.8(b)(xii)), is less than the sum, without duplication, of:
(1) 50% of the Consolidated Net Income of the Company for the period (taken as one accounting period) from April 2December 31, 2012 2018 to the end of the CompanyIssuer’s most recently ended fiscal quarter for which consolidated 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
(2) 100% of the aggregate net proceeds, including cash proceeds and the fair market value aggregate Fair Market Value of any property or Capital Interests, received by the Company Issuer since August 27, 2012 the Issue Date (1) as a contribution to its common equity capital capital, (2) from Equity Offerings of the Issuer, including cash proceeds received from an exercise of warrants or options, or (3) from the issue or sale of Equity Interests of the Company (other than convertible or exchangeable Disqualified Interests) Stock or from the issue convertible or sale of Disqualified Interests or exchangeable debt securities of the Company Issuer that have been converted into or exchanged for such Equity Interests (other than Equity Interests (or Disqualified Interests or convertible debt securities) sold to a Subsidiary of the Company), together with the aggregate cash and Cash Equivalents received by the Company or any of its Restricted Subsidiaries at the time of such conversion or exchange plus the amount by which Indebtedness of the Company and its Restricted Subsidiaries is reduced upon the conversion or exchange subsequent to August 27, 2012 of any Indebtedness or Disqualified Interests which are convertible into or exchangeable for Qualified Capital Interests of the Company or any of its Restricted Subsidiaries, Interests; plus
(3) 100% of to the amount receivedextent any Restricted Investment that was made after the Issue Date is sold for cash or otherwise liquidated, including redeemed, repurchased or repaid for cash, the fair market value of any property received after August 27, 2012 by means lesser of (A1) the sale or other disposition cash return of capital with respect to such Restricted Investment (other than to less the Company or a Restricted Subsidiarycost of disposition, if any) of Restricted Investments made by and (2) the Company or its Restricted Subsidiaries and repurchases and redemptions initial amount of such Restricted Investments from the Company or its Restricted Subsidiaries and repayments of loans or advances which constitute Restricted Investments of the Company or its Restricted Subsidiaries or (B) the sale (other than to the Company or a Restricted Subsidiary) of the Capital Interests of an Unrestricted Subsidiary or a distribution from an Unrestricted Subsidiary (other than in each case to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment) or a dividend from an Unrestricted Subsidiary, ; plus
(4) in to the case extent that any Unrestricted Subsidiary of the redesignation of an Unrestricted Subsidiary Issuer is redesignated as a Restricted Subsidiary after the Issue Date, the lesser of (1) the Fair Market Value of the Issuer’s Investment in such Subsidiary as of the date of such redesignation or (2) such Fair Market Value as of the merger or consolidation of date on which such Subsidiary was originally designated as an Unrestricted Subsidiary into (together with the Company or a value of any Restricted Subsidiary or the transfer of assets of an Investments made in such Unrestricted Subsidiary to the Company or a Restricted Subsidiary, the fair market value date of the Investment in redesignation less any distributions made by such Unrestricted Subsidiary (other than an Unrestricted Subsidiary to the extent the Investment in during such Unrestricted Subsidiary constituted a Permitted Investmentperiod), ; plus
(5) $141.0 million. The Board 100% of Directors may designate any dividends or distributions received in cash by the Issuer or a Restricted Subsidiary to be from an Unrestricted Subsidiary if such designation would not cause a Default. For purposes of making such determination, all outstanding Investments by after the Company and its Restricted Subsidiaries in the Subsidiary so designated will be deemed to be Restricted Payments or Permitted Investments, in the Company’s discretion, at the time of such designation and will reduce the amount available for Restricted Payments or Permitted Investments, as applicable. All such outstanding Investments will be deemed to constitute Investments in an amount equal Issue Date (to the fair market value extent not already included in Consolidated Net Income of such Investments at the time of such designation. Such designation will only be permitted if such Restricted Payments or Permitted Investments would be permitted at such time and if such Restricted Subsidiary otherwise meets Issuer for the definition of an Unrestricted Subsidiaryapplicable period).
(b) Section 4.07(a6.8(a) shall will not prohibit, so long as, in the case of Sections 6.8(b)(iv), 6.8(b)(vi), 6.8(b)(viii), 6.8(b)(xi) and 6.8(b)(xii), no Default has occurred and is continuing or would be caused thereby:
(i) the payment of any dividend or other distribution distribution, or the making of any Restricted Payment in respect of a redemption of Subordinated Indebtedness, in each case within 60 days after the date of declaration thereof or call for redemption thereofthe giving of an irrevocable Redemption Notice therefor, as the case may be, if at said date of declaration or call for redemption such payment would have complied with the provisions of this Indenture;
(ii) the payment of any dividend or similar distribution by a Restricted Subsidiary of the Issuer to the holders of its Equity Interests on a pro rata basis;
(iii) the making of any Restricted Payment in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a an Unrestricted Subsidiary of the CompanyIssuer) of, Equity Interests of the Company Issuer (other than any Disqualified Interests) Stock), including cash proceeds received from an exercise or warrants or options, or from the substantially concurrent contribution (other than by a contribution Subsidiary of the Issuer) of capital to the CompanyIssuer 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, repurchase, retirement, defeasance or other acquisition shall Restricted Payment will be excluded from Section 4.07(a)(C)(26.8(a)(C)(2);.
(iiiiv) the defeasance, redemption, repurchase, replacement, extension, renewal, refinancing or retirement or other acquisition of subordinated Subordinated Indebtedness or Disqualified Interests in exchange for or with the net cash proceeds from an a substantially concurrent incurrence of Permitted Refinancing Indebtedness;
(ivv) the declarationInvestments acquired as a capital contribution to, or payment in exchange for, or out of any dividend or the net cash proceeds of a substantially concurrent sale (other distribution by than to a Subsidiary of the Company to the holders of its common Issuer) of, Equity Interests on a pro rata basis(other than Disqualified Stock) of the Issuer; provided that the amount of any such net cash proceeds that are utilized for any such acquisition or exchange will be excluded from Section 6.8(a)(C)(2);
(vvi) the repurchase, redemption or other acquisition or retirement of Equity Interests deemed to occur upon the exercise or exchange of stock options, warrants or other similar rights to the extent such Equity Interests represent a portion of the exercise or exchange price of those stock options, warrants or other similar rights;
(vii) the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Subsidiary of the Company Issuer held by any current or former officer, director, employee, consultant director or agent of Company employee (or any of its their respective heirs or estates or permitted transferees) of the Issuer or any Restricted Subsidiaries (or Heirs or other permitted transferees thereof) upon deathSubsidiary of the Issuer pursuant to any employee equity subscription agreement, disability, retirement, severance or termination of employment or service or in connection with a stock option plan or agreement, shareholders agreementstock matching program, stockholders’ agreement or similar agreement, plan or arrangement, including amendments theretoagreement entered into in the ordinary course of business; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may not exceed: (A) $10.0 million in any calendar year, with unused amounts being available to be used in any later calendar year; provided that such amount in any calendar year may be increased will not exceed $5.0 million (with unused amounts in an amount not to exceed the net cash proceeds from the sale of Equity Interests (other than Disqualified Interests) of the Company to any officer, director, employee or agent of the Company or any Subsidiary of the Company that occurs after the date of this Indenture, calendar year being carried over to the extent such net cash proceeds have not otherwise been applied to make Restricted Payments pursuant to Section 4.07(a)(C)(2next succeeding calendar year only); plus (B) the cash proceeds of key man life insurance policies received by the Company and its Restricted Subsidiaries after the date of this Indenture that are used for the repurchase, redemption or other acquisition or retirement for value owned by the individual (or such individual’s estate) that is the subject of such insurance;
(vi) the repurchase of Equity Interests deemed to occur upon the exercise of options, warrants or other convertible securities to the extent such Equity Interests represent a portion of the exercise price of those options, warrants or other convertible securities and cash payments in lieu of the issuance of fractional shares in connection with the exercise of options, warrants, or other convertible securities;
(vii) the declaration and payment of regular quarterly dividends on the Company’s Equity Interests in accordance with past practice and not to exceed $0.05 per share;
(viii) additional Restricted Payments not dividends on Disqualified Stock issued in compliance with Section 6.9 to exceed $150.0 million after August 27, 2012the extent such dividends are included in the definition of Consolidated Fixed Charges with respect to the Issuer;
(ix) the repurchase payment of the Company’s cash in lieu of fractional Equity Interests in an amount connection with stock dividends, splits or business combinations or the exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests of the Issuer or any of its Restricted Subsidiaries that are not to exceed $50.0 million after August 27, 2012derivative securities;
(x) payments or distributions or payments of Securitization Fees and purchases of Securitization Assets to dissenting stockholders pursuant to a Securitization Repurchase Obligation applicable law in connection with a Qualified Securitization Financingmerger, consolidation or transfer of assets that complies with the provisions of Section 10.1;
(xi) any payments made in connection with the consummation of the transactions on substantially the terms described in the Offering Memorandum;
(xii) the payment of intercompany subordinated debt, the incurrence of which was permitted under Section 4.09(b)(vi);
(xiii) the purchase of fractional shares by the Company upon conversion of any securities of the Company into Capital Interests of the Company;
(xiv) the repurchase, redemption or other acquisition or retirement for value of subordinated any Indebtedness or Disqualified Interests pursuant to the provisions in documentation governing such Indebtedness similar to those described under in Section 4.14 6.13 or Section 6.14, provided that, prior to such repurchase, redemption or other acquisition or retirement, the Issuer (or a third party to the extent permitted by this Indenture) shall have made a Change of Control Offer or Asset Sale Offer with respect to the Notes and Section 4.10; provided that shall have repurchased all Notes validly tendered by Holders of the Notes and not withdrawn in connection with the related such Change of Control Offer or Asset Sale Offer, as applicable, have been repurchased, redeemed or acquired for value in full; and
(xvxii) payment Restricted Payments not otherwise permitted under items (i) through (xi) above in an aggregate amount at any one time outstanding not to exceed the greater of dividends on Disqualified Interests (A) $15.0 million and (B) the amount equal to 0.3 multiplied by the aggregate amount of Consolidated EBITDA for the most recently completed twelve fiscal months of the Company or a Issuer for which the internal financial statements are available immediately preceding the date on which such Restricted Subsidiary, the issuance of which Payment is permitted by this Indenturemade.
(c) In determining whether any Restricted Payment (or a portion thereof) is permitted by the foregoing paragraphs (a) or (b) of this Section 6.8, the Issuer may allocate or reallocate all or any portion of such Restricted Payment among the clauses of paragraph (a) or (b) of this Section 6.8, provided that at the time of such allocation or reallocation, all such Restricted Payments, or allocated portions thereof, would be permitted under the various provisions of the foregoing covenant.
(d) 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 Issuer 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 (other than cash Restricted Payment or Cash Equivalents) that are required to be valued by this covenant will be determined, in the case of amounts under $15.0 million, pursuant to an Officers’ Certificate delivered to the Trustee and, in the case of amounts over $15.0 million, by the Board of Directors of the Issuer, whose determination shall be determined evidenced by an officer of the Company. In the event a Board Resolution that a Restricted Payment meets the criteria of more than one of the exceptions described in (i) through (xv) above or is entitled to will be made pursuant delivered to the first paragraph of this covenant, the Company may, in its sole discretion, classify, and may later reclassify from time to time, such Restricted Payment or any portion thereof into or among any of such applicable provisionsTrustee.
Appears in 3 contracts
Samples: Trust Indenture (Trulieve Cannabis Corp.), Trust Indenture, Trust Indenture
Restricted Payments. (a) 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 its 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 's or any of its Restricted Subsidiaries’ ' Equity Interests in their capacity as such (other than (A) dividends or distributions accrued or payable (x) solely in Equity Interests (other than Disqualified InterestsStock) of the Company or (By) dividends or distributions in the case of the Company and its Restricted Subsidiaries, to the Company or a Restricted Subsidiary of the Companythereof);
(iib) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the CompanyCompany or any of its Restricted Subsidiaries) any Equity Interests of the Company or any direct or indirect parent Parent of the Company or any Restricted Subsidiary of the Company (other than than, in the case of the Company and its Restricted Subsidiaries, any such Equity Interests owned by the Company or any of its Restricted Subsidiary of the CompanySubsidiaries);; or
(iiic) 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 (other than intercompany Indebtedness among the Company and its Restricted Subsidiaries that is permitted to be incurred under this Supplemental Indenture) that is subordinated to the Notes or any Note Guarantee (other than Indebtedness permitted under clause (vi) of the definition of “Permitted Debt”) Notes, except (a) a payment of interest or principal at the Stated Maturity or (b) the purchase, repurchase or other acquisition of any such Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case, due within one year of the date of such purchase, repurchase or other acquisition; or
(iv) make any Restricted Investment thereof (all such payments and other actions set forth in clauses (ia) through (ivc) 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 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 Fixed Charge Coverage Leverage Ratio test set forth in the first paragraph of Section 4.09(a)4.10; and
(C3) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries from and after August 27April 1, 2012 2010 (excluding Restricted Payments permitted by clauses (i2) through (provided that 16) of the next succeeding paragraph and made on or after April 1, 2010), shall not exceed, at the time date of declaring such dividenddetermination, such dividend was counted as a Restricted Payment) (ii), (iii), (iv), (v), (vi), (vii), (viii), (ix), (x), (xi), (xii), (xiii), (xiv) and (xv) of Section 4.07(b)), is less than the sum, without duplication, sum of:
(1a) 50an amount equal to 100% of the Consolidated Net Income EBITDA of the Company for the period (taken as one accounting period) from beginning on the first day of the fiscal quarter commencing April 21, 2012 2010 to the end of the Company’s most recently ended full fiscal quarter for which internal financial statements are available at available, taken as a single accounting period, less the time product of such Restricted Payment (or, if such 1.3 times the Consolidated Net Income Interest Expense of the Company for such period is a deficitperiod, less plus
(b) an amount equal to 100% of Capital Stock Sale Proceeds (reduced for purpose of this clause (b) by (A) any amount of such deficitCapital Stock Sale Proceeds (i) used in connection with an Investment made on or after the Issue Date pursuant to clause (5) of the definition of “Permitted Investments,” (ii) applied to make a Restricted Payment pursuant to clause (2) or sub-clause (y)(2) of clause (9) or clause (14) below, or (iii) relied upon for purposes of incurring Contribution Indebtedness and (B) the amount of Restricted Payments made pursuant to sub-clause (A)(i), (B) or (C) of clause (8) and sub-clause (y)(1) of clause (9) below, in each case, by an amount not to exceed the amount of Capital Stock Sale Proceeds from any Charter Subsidiary Refinancing Indebtedness or Charter Parent Refinancing Indebtedness), plus
(2) 100% of the aggregate net proceeds, including the fair market value of any property or Capital Interests, received by the Company since August 27, 2012 as a contribution to its equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified Interests) or from the issue or sale of Disqualified Interests or debt securities of the Company that have been converted into such Equity Interests (other than Equity Interests (or Disqualified Interests or convertible debt securities) sold to a Subsidiary of the Company), together with the aggregate cash and Cash Equivalents received by the Company or any of its Restricted Subsidiaries at the time of such conversion or exchange plus the amount by which Indebtedness of the Company and its Restricted Subsidiaries is reduced upon the conversion or exchange subsequent to August 27, 2012 of any Indebtedness or Disqualified Interests which are convertible into or exchangeable for Qualified Capital Interests of the Company or any of its Restricted Subsidiaries, plus
(3) 100% of the amount received, including the fair market value of any property received after August 27, 2012 by means of (A) the sale or other disposition (other than to the Company or a Restricted Subsidiary) of Restricted Investments made by the Company or its Restricted Subsidiaries and repurchases and redemptions of such Restricted Investments from the Company or its Restricted Subsidiaries and repayments of loans or advances which constitute Restricted Investments of the Company or its Restricted Subsidiaries or (B) the sale (other than to the Company or a Restricted Subsidiary) of the Capital Interests of an Unrestricted Subsidiary or a distribution from an Unrestricted Subsidiary (other than in each case to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment) or a dividend from an Unrestricted Subsidiary, plus
(4) in the case of the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary or the merger or consolidation of an Unrestricted Subsidiary into the Company or a Restricted Subsidiary or the transfer of assets of an Unrestricted Subsidiary to the Company or a Restricted Subsidiary, the fair market value of the Investment in such Unrestricted Subsidiary (other than an Unrestricted Subsidiary to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment), plus
(5c) $141.0 2,000.0 million. The Board of Directors 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 in the Subsidiary so designated will be deemed to be Restricted Payments or Permitted Investments, in the Company’s discretion, at the time of such designation and will reduce the amount available for Restricted Payments or Permitted Investments, as applicable. 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 Payments or Permitted Investments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary.
(b) Section 4.07(a) preceding provisions shall not prohibit:
(i1) the payment of any dividend or other distribution or redemption within 60 days after the date of declaration or call for redemption thereof, if at said the date of declaration or call for redemption such payment would have complied with the provisions of this Supplemental Indenture;
(ii2) the making redemption, repurchase, retirement, defeasance or other acquisition of any Restricted Payment subordinated Indebtedness of the Company in exchange for, or out of the net cash proceeds of of, the substantially concurrent sale (other than to a Subsidiary of the Company) of, Equity Interests of the Company (other than any Disqualified Interests) or from a contribution of capital to the Company; 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 Section 4.07(a)(C)(2Stock);
(iii3) the defeasance, redemption, repurchase, replacement, extension, renewal, refinancing or retirement repurchase or other acquisition of subordinated Indebtedness of the Company or Disqualified Interests in exchange for or any of its Restricted Subsidiaries with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness;
(iv4) the declaration, or payment of any dividend or other distribution distribution, which need not be pro rata, to the extent necessary to permit direct or indirect beneficial owners of shares of Capital Stock of the Company to pay federal, state or local income tax liabilities that would arise solely from income of the Company or any of its Restricted Subsidiaries, as the case may be, for the relevant taxable period being attributable to them;
(5) the payment of any dividend by a Restricted Subsidiary of the Company to the holders of its common Equity Interests on a pro rata basis;
(v6) the repurchase, redemption or other acquisition or retirement for value value, or the payment of any dividend or distribution to the extent necessary to permit the repurchase, redemption or other acquisition or retirement for value, of any Equity Interests of the Company or any Subsidiary a Parent of the Company held by any current member of the Company’s or former officer, director, employee, consultant such Parent’s management pursuant to any management equity subscription agreement or agent stock option agreement entered into in accordance with the policies of the Company or any of its Restricted Subsidiaries (or Heirs or other permitted transferees thereof) upon death, disability, retirement, severance or termination of employment or service or in connection with a stock option plan or agreement, shareholders agreement, or similar agreement, plan or arrangement, including amendments theretoParent; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may shall not exceed: exceed $50.0 million in any fiscal year of the Issuers;
(7) payment of fees in connection with any acquisition, merger or similar transaction in an amount that does not exceed an amount equal to 1.25% of the transaction value of such acquisition, merger or similar transaction;
(8) (A) $10.0 million in additional Restricted Payments directly or indirectly to any calendar yearParent (i) for the purpose of enabling any Parent to pay interest when due on Indebtedness under any Charter Parent Refinancing Indebtedness or (ii) so long as no Default has occurred and is continuing and the Company would have been permitted, with unused amounts being available to be used in any later calendar year; provided that at the time of such amount in any calendar year may be increased in an amount not to exceed Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the net cash proceeds from the sale of Equity Interests (other than Disqualified Interests) beginning of the Company applicable quarter period, to incur at least $1.00 of additional Indebtedness pursuant to the Leverage Ratio test set forth in the first paragraph of Section 4.10, consisting of dividends or distributions to the extent required to enable any officerParent to defease, directorredeem, employee repurchase, prepay, repay, discharge or agent otherwise acquire or retire for value Indebtedness under any Charter Parent Refinancing Indebtedness (including any expenses and fees incurred by any Parent in connection therewith); (B) so long as no Default has occurred and is continuing, Restricted Payments used to defease, redeem, repurchase, prepay, repay, discharge or otherwise acquire or retire for value Indebtedness under any Charter Parent Refinancing Indebtedness or consisting of purchases, redemptions or other acquisitions by the Company or its Restricted Subsidiaries of Indebtedness under any Subsidiary of the Company that occurs after the date of this Indenture, to the extent such net cash proceeds have not otherwise been applied to make Restricted Payments pursuant to Section 4.07(a)(C)(2); plus Charter Parent Refinancing Indebtedness (B) the cash proceeds of key man life insurance policies received including any expenses and fees incurred by the Company and its Restricted Subsidiaries in connection therewith) and the distribution, loan or investment to any Parent of Indebtedness so purchased, redeemed or acquired, or (C) Restricted Payments for the purpose of enabling any Parent to (i) pay interest when due on Indebtedness under any Charter Subsidiary Refinancing Indebtedness or (ii) to defease, redeem, repurchase, prepay, repay, discharge or otherwise acquire or retire for value Indebtedness under any Charter Subsidiary Refinancing Indebtedness (including any expenses and fees incurred by the Company and its Restricted Subsidiaries in connection therewith);
(9) Restricted Payments directly or indirectly to any Parent regardless of whether a Default exists (other than an Event of Default under paragraph (1), (2), (7) or (8) of Section 6.01), for the purpose of enabling such Person (A) to pay interest on and (B) so long as 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 date beginning of this Indenture the applicable quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Leverage Ratio test set forth in the first paragraph of Section 4.10 to defease, redeem, repurchase, prepay, repay, discharge or otherwise acquire or retire, in each case, Indebtedness of such Parent (x) which is not held by another Parent and (y) to the extent that the net cash proceeds of such Indebtedness are or were used for the repurchase(1) payment of interest or principal (or premium) on any Indebtedness of a Parent (including (A) by way of a tender, redemption or other acquisition or retirement for value owned by the individual (or such individual’s estate) that is the subject prepayment of such insuranceIndebtedness and (B) amounts set aside to prefund any such payment), (2) direct or indirect (including -55- by way of a contribution of property and/or assets purchased with such net cash proceeds) Investment in the Company or any of its Restricted Subsidiaries or (3) payment of amounts that would be permitted to be paid by way of a Restricted Payment under clause (10) immediately below (including the expenses of any exchange transaction);
(vi10) the repurchase Restricted Payments directly or indirectly to any Parent of (A) attorneys’ fees, investment banking fees, accountants’ fees, underwriting discounts and commissions and other customary fees and expenses (including any commitment and other fees payable in connection with Credit Facilities) actually incurred in connection with any issuance, sale or incurrence by such Parent of Equity Interests deemed or Indebtedness, or any exchange of securities or tender for outstanding debt securities, or (B) the costs and expenses of any offer to occur upon the exercise of options, warrants or other convertible exchange privately placed securities to the extent such Equity Interests represent a portion in respect of the exercise price of those options, warrants foregoing for publicly registered securities or other convertible securities and cash payments in lieu of the issuance of fractional shares in connection with the exercise of options, warrants, or other convertible securitiesany similar concept having a comparable purpose;
(vii11) the redemption, repurchase, retirement or other acquisition of any Equity Interests of the Company or Indebtedness of the Issuers or any Equity Interests of any direct or indirect parent of the Company, in exchange for, or out of the proceeds of the substantially concurrent sale (other than to an Issuer or a Restricted Subsidiary) of, Equity Interests of the Company or any direct or indirect parent of the Company (in each case, other than any Disqualified Stock);
(12) the declaration and payment of regular quarterly dividends on to holders of any class or series of Disqualified Stock of the Company’s Equity Interests Issuers or any Restricted Subsidiary issued in accordance with past practice Section 4.10;
(13) so long as no Default has occurred and is continuing, other Restricted Payments in an aggregate amount outstanding taken together with all other Restricted Payments made pursuant to this clause (13) not to exceed $0.05 per share100.0 million outstanding at any one time;
(viii14) additional Restricted Payments not to exceed $150.0 million after August 27, 2012;
(ix) the repurchase pay all or a portion of the Company’s Equity Interests consideration payable for any Investment that would have been permitted to be made by the Issuers under this Indenture including the consideration payable in an amount not to exceed $50.0 million after August 27the Taxable Purchase, 2012;
including, without limitation, (x) distributions or payments of Securitization Fees the true up payment with respect to the Taxable Purchase, and purchases of Securitization Assets pursuant to a Securitization Repurchase Obligation in connection with a Qualified Securitization Financing;
(xi) any payments made in connection with the consummation of the transactions on substantially the terms described in the Offering Memorandum;
(xiiy) the payment required to be made to Comcast for the value of intercompany subordinated debtthe step-up obtained as a result of the Taxable Purchase, as provided in the incurrence of which was permitted under Section 4.09(b)(vi);
Acquisition Agreement, provided that (xiiix) the purchase assets or Equity Interests acquired in such Investment (to the extent of fractional shares amounts distributed by the Company upon conversion of any securities of Issuers to make such Investment) are promptly contributed to the Company into Capital Interests capital of the Company;
(xiv15) the repurchaseso long as no Default or Event of Default has occurred and is continuing or would result therefrom, redemption or other acquisition or retirement for value of subordinated Indebtedness or Disqualified Interests pursuant to the provisions similar to those described under Section 4.14 and Section 4.10any Restricted Payments; provided that all Notes tendered by Holders of the Notes in connection with the related Change of Control Offer Leverage Ratio, after giving pro forma effect to such Restricted Payment, is less than or Asset Sale Offer, as applicable, have been repurchased, redeemed or acquired for value in fullequal to 3.50:1.00; and
(xv16) payment any distributions to any Parent to permit such Parent to pay (i) attorneys’ fees, investment banking fees, accountants’ fees, underwriting discounts and commis- sions and other customary fees and expenses (including any commitment and other fees payable in connection with credit facilities) actually incurred in connection with any issuance, sale or incurrence by such Parent of dividends on Disqualified Equity Interests or Indebtedness, any exchange of securities or a tender for outstanding debt securities or any actual or proposed Investment, (ii) the costs and expenses of any offer to exchange privately placed securities in respect of the Company foregoing for publicly registered securities or any similar concept having a Restricted Subsidiarycomparable purpose or (iii) other administrative expenses (including legal, accounting, other professional fees and costs, printing and other such fees and expenses) incurred in the issuance ordinary course of which is permitted by business, in an aggregate amount in the case of this Indenture.
clause (ciii) not to exceed $5,000,000 in any fiscal year. 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 Subsidiary, as the case may be, any of its Restricted Subsidiaries 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 covenant shall be determined by an officer the Board of Directors of the Company, whose resolution with respect thereto shall be delivered to the Trustee. In 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 $100.0 million. Not later than the date of making any Restricted Payment other than in the form of cash having a fair market value in excess of $25.0 million, 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 Supplemental Indenture. For purposes of determining compliance with this Section 4.07, in the event that a Restricted Payment meets Payment, when made, met the criteria of more than one of the exceptions categories described in clauses (i1) through (xv16) above above, or is entitled to be made was permitted pursuant to the first paragraph of this covenantSection 4.07, the Company may, in its sole discretion, classify, and may later reclassify from time Issuers will be entitled to time, classify such Restricted Payment (or portion thereof) on the date of its payment or later reclassify such Restricted Payment (or portion thereof) in any portion thereof into or among any of such applicable provisionsmanner that complies with this Section 4.07.
Appears in 3 contracts
Samples: Fourth Supplemental Indenture (Charter Communications, Inc. /Mo/), Third Supplemental Indenture (Charter Communications, Inc. /Mo/), Fifth Supplemental Indenture (Charter Communications, Inc. /Mo/)
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 (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 (A) dividends or distributions accrued or payable in Equity Interests (other than Disqualified InterestsStock) of the Company or (B) and other than dividends or distributions payable to the Company or a Restricted Subsidiary of the Company);
(ii2) purchase, redeem repurchase, redeem, defease 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 the Company (Company, in each case held by Persons other than any such Equity Interests owned by the Company or any a Restricted Subsidiary of the Company);
(iii3) make any principal payment on or with respect to, or purchase, repurchase, redeem, defease or otherwise acquire or retire for value any Subordinated Indebtedness that is subordinated to the Notes or any Note Guarantee (other than Indebtedness permitted under clause (vi) of the definition of “Permitted Debt”) except (a) a payment of interest or principal at Stated Maturity or (b) the payment, purchase, repurchase repurchase, redemption, defeasance, acquisition or other acquisition retirement of any such (i) intercompany Indebtedness between or among the Company and its Restricted Subsidiaries and (ii) Subordinated Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturitymaturity thereof, in each case, case due within one year of the date of such payment, purchase, repurchase repurchase, redemption, defeasance, acquisition or other acquisitionretirement); or
(iv4) make any Restricted Investment (all such payments and other actions set forth in clauses (i1) through (iv4) above being collectively referred to as “Restricted Payments”), unless, at the time of and after giving effect to such Restricted Payment:
(A1) no 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 (other than Permitted Debt) pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.09(a); and
(C3) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after August 27January 1, 2012 2020 (excluding Restricted Payments permitted by clauses clause (i) (provided that at the time of declaring such dividend, such dividend was counted as a Restricted Payment) (ii2), (iii3), (iv4), (v5), (vi6), (vii7), (viii8), (9), (ix10), (x11), (xi12), (xii13), (xiii14), (xiv15), (16), (17), (18) and or (xv19) of Section 4.07(b)), is less than the sum, without duplication, of:
(1A) 50an amount, not less than zero, equal to 100% of the cumulative Consolidated Net Income Cash Flow (excluding the amount of any dividends or distributions included in the calculation of Consolidated Cash Flow to the extent the Company elects to include such dividends or distributions in clause (14)(b) or 20(b) of the definition of “Permitted Investments” in accordance with such clause) of the Company for the period (taken as one accounting period) from April 2commencing on January 1, 2012 2020 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 minus 1.5 times the Fixed Charges of the Company for the same period (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficittaken as one accounting period), plus
(2B) 100% of the aggregate net proceeds, including proceeds and the fair market value of any property or Capital Interests, other than cash received by the Company since August 27after March 10, 2012 2021, as a contribution to its common equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified Interests) or from the issue or sale of Disqualified Interests or debt securities of the Company that have been converted into such Equity Interests (other than Equity Interests (or Disqualified Interests or convertible debt securities) sold to a Subsidiary of the Company)) of:
(i) Equity Interests (other than Disqualified Stock or Designated Preferred Stock) of the Company; or
(ii) Disqualified Stock, together with Designated Preferred Stock or Indebtedness of the aggregate cash and Cash Equivalents received Company that in each case have been converted into or exchanged for Equity Interests (other than Disqualified Stock or Designated Preferred Stock) of the Company, provided that this clause (B) shall not include the proceeds from Excluded Contributions, plus
(C) 100% of the fair market value as of the date of issuance of any Equity Interests (other than Disqualified Stock) issued since March 10, 2021, by the Company as consideration for the purchase or other acquisition by the Company or any of its Restricted Subsidiaries at the time of such conversion all or exchange plus the amount by which Indebtedness substantially all of the Company and its assets of, or a majority of the Voting Stock of, a Related Business (including by means of a merger, consolidation or other business combination permitted under this Indenture); plus
(D) to the extent that any Restricted Subsidiaries Investment that was made after March 10, 2021 is reduced upon sold for cash or other property or otherwise liquidated or repaid for cash, in each case to the conversion extent such cash or exchange subsequent to August 27, 2012 of any Indebtedness or Disqualified Interests which are convertible into or exchangeable for Qualified Capital Interests of other property is received by the Company or any Restricted Subsidiary, the cash return of its capital with respect to such Restricted SubsidiariesInvestment or the fair market value of such other property, except to the extent increasing the amount available to make Restricted Payments pursuant to Section 4.07(b)(15); plus
(3E) 100% of the amount received, aggregate net proceeds (including the fair market value of property other than cash) received by the Company or any property received Restricted Subsidiary after August 27March 10, 2012 by means of 2021 from:
(Ai) the issuance, sale or other disposition (other than to the Company or a Restricted Subsidiary) of Restricted Investments made by the Company Equity Interests or its Restricted Subsidiaries and repurchases and redemptions of such Restricted Investments from the Company or its Restricted Subsidiaries and repayments of loans or advances which constitute Restricted Investments of the Company or its Restricted Subsidiaries or (B) the sale (other than to the Company or a Restricted Subsidiary) of the Capital Interests assets of an Unrestricted Subsidiary Subsidiary; and
(ii) any distribution or a distribution from an Unrestricted Subsidiary (other than in each case to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment) or a dividend from an Unrestricted Subsidiary, in each case, except to the extent any such amount has already been included in the calculation of Consolidated Cash Flow or to the extent increasing the amount available to make (i) Restricted Payments pursuant to Section 4.07(b)(15) or (ii) Investments pursuant to clause (14)(b) or (20)(b) of the definition of “Permitted Investments” or (iii) Excluded Contributions; plus
(4F) in the case of the redesignation of an event any Unrestricted Subsidiary has been redesignated as a Restricted Subsidiary or the merger has been merged, consolidated or consolidation of an Unrestricted Subsidiary into amalgamated with or into, or transfers or conveys its assets to, or is liquidated into, the Company or a any of its Restricted Subsidiary or the transfer of assets of an Unrestricted Subsidiary to the Company or a Restricted SubsidiarySubsidiaries, the fair market value of the Company’s or its Restricted Subsidiaries’ Investment in such Unrestricted Subsidiary (other than an Unrestricted Subsidiary as of the date of such redesignation, merger, consolidation or amalgamation, or of the assets transferred or conveyed, as applicable, except to the extent increasing the Investment in such Unrestricted Subsidiary constituted a amount available to make (i) Restricted Payments pursuant to Section 4.07(b)(15) or (ii) Investments pursuant to clause (14)(b) or (20)(b) of the definition of “Permitted Investment), Investments”; plus
(5G) $141.0 2,713 million. The Board of Directors 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 in the Subsidiary so designated will be deemed to be Restricted Payments or Permitted Investments, in the Company’s discretion, at the time of such designation and will reduce the amount available for Restricted Payments or Permitted Investments, as applicable. 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 Payments or Permitted Investments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary.
(b) The provisions of Section 4.07(a) shall will not prohibit:
(i1) the payment of any dividend or other distribution or consummation of any irrevocable redemption within 60 90 days after the date of declaration thereof or call for the giving of any redemption thereofnotice related thereto, if at said date of declaration or call for redemption notice such payment would have complied with the provisions of this Indenture;
(ii2) the making of any Restricted 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, Equity Interests of the Company (other than any Disqualified InterestsStock) or from a the contribution of common equity capital to the CompanyCompany within 10 Business Days; provided that the amount of any such net cash proceeds that are utilized for any such Restricted Payment shall be excluded from clause (3)(B) of Section 4.07(a);
(3) the redemption, repurchase, retirement, defeasance or other acquisition shall be excluded from Section 4.07(a)(C)(2);
(iii) the defeasance, redemption, repurchase, replacement, extension, renewal, refinancing or retirement or other acquisition for value of subordinated Subordinated Indebtedness or Disqualified Interests in exchange for Stock of the Company or any of its Restricted Subsidiaries with the net cash proceeds from an a substantially concurrent (i) incurrence of Permitted Refinancing IndebtednessIndebtedness or (ii) issuance of Disqualified Stock permitted to be issued under this Indenture;
(iv4) the declaration, or payment of any dividend (or, in the case of any partnership, limited liability company or other distribution business entity, any similar distribution) by a Restricted Subsidiary of the Company to the holders of its common Equity Interests on a pro rata basis;
(v5) 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 current or former officer, directormanager, employee, consultant director or agent employee of the Company (or any of its Restricted Subsidiaries (or Heirs Subsidiaries) pursuant to any equity subscription agreement, stock option agreement, employment agreement, severance agreement or other permitted transferees thereof) upon death, disability, retirement, severance executive compensation arrangement or termination of employment any other management or service or in connection with a stock option employee benefit plan or agreement, shareholders agreement, shareholders’ agreement or similar agreement, plan or arrangement, including amendments thereto; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may shall not exceed: exceed $30.0 million in any calendar year (A) with unused amounts in any calendar year being carried over to subsequent calendar years; provided that the aggregate purchase price for all such repurchased, redeemed, acquired or retired Equity Interests shall not exceed $10.0 50.0 million in any calendar year); and provided, with unused amounts being available to be used in any later calendar year; provided further, that such amount in any calendar year may be increased in by an amount not to exceed the net cash proceeds received by the Company from the sale sales of Equity Interests (other than Disqualified InterestsStock) of the Company to any officerofficers, directormanagers, employee directors or agent employees of the Company or any of its Restricted Subsidiaries that occur after the Issue Date (provided that the amount of such cash proceeds used for any such repurchase, redemption, acquisition or retirement will not increase the amount available for Restricted Payments under clause (3)(B) of Section 4.07(a); and provided, further, that the Company may elect to apply all or any portion of the aggregate increase contemplated by this proviso in any calendar year); and provided, further, that cancellation of Indebtedness owing to the Company from members of management of the Company or any Restricted Subsidiary of the Company that occurs after the date in connection with a repurchase of this Indenture, to the extent such net cash proceeds have not otherwise been applied to make Restricted Payments pursuant to Section 4.07(a)(C)(2); plus (B) the cash proceeds Equity Interests of key man life insurance policies received by the Company and its will not be deemed to constitute a Restricted Subsidiaries after the date of this Indenture that are used for the repurchase, redemption or other acquisition or retirement for value owned by the individual (or such individual’s estate) that is the subject of such insurancePayment;
(vi6) the repurchase of Equity Interests deemed to occur (i) upon the exercise of options, warrants or other convertible securities stock options to the extent such Equity Interests represent a portion of the exercise price of those options, warrants stock options and (ii) in connection with the withholding of a portion of the Equity Interests granted or other convertible securities and cash awarded to a director or an employee to pay for the taxes payable by such director or employee upon such grant or award;
(7) payments to holders of the Company’s capital stock in lieu of the issuance of fractional shares in connection with the exercise of options, warrants, or other convertible securitiesits Capital Stock;
(vii) 8) the declaration and payment redemption, repurchase, retirement, defeasance or other acquisition of regular quarterly dividends on Disqualified Stock of the Company in exchange for Disqualified Stock of the Company or with the net cash proceeds from a substantially concurrent issuance of Disqualified Stock by the Company’s Equity Interests , in accordance with past practice and not each case that is permitted to exceed $0.05 per sharebe issued as described under Section 4.09;
(viii) additional Restricted Payments not to exceed $150.0 million after August 27, 2012;
(ix) the repurchase of the Company’s Equity Interests in an amount not to exceed $50.0 million after August 27, 2012;
(x) distributions or payments of Securitization Fees and purchases of Securitization Assets pursuant to a Securitization Repurchase Obligation in connection with a Qualified Securitization Financing;
(xi) any payments made in connection with the consummation of the transactions on substantially the terms described in the Offering Memorandum;
(xii) the payment of intercompany subordinated debt, the incurrence of which was permitted under Section 4.09(b)(vi);
(xiii) the purchase of fractional shares by the Company upon conversion of any securities of the Company into Capital Interests of the Company;
(xiv9) the repurchase, redemption or other acquisition or retirement for value of subordinated any Subordinated Indebtedness or Disqualified Interests pursuant to in accordance with the provisions similar to those described under Section 4.14 Sections 4.10 and Section 4.10; 4.14, provided that all Notes validly tendered by Holders of the Notes in connection with the related a Change of Control Offer or Asset Sale Net Proceeds Offer, as applicable, have been repurchased, redeemed or acquired for value in full; andvalue;
(xv10) the declaration and payment of dividends on to holders of any class or series of Disqualified Interests Stock of the Company or any of its Restricted Subsidiaries or any class or series of preferred stock of a Restricted Subsidiary issued in accordance with Section 4.09 to the extent such dividends are included in the definition of “Fixed Charges”;
(11) the declaration and payment of dividends to holders of any class or series of Designated Preferred Stock of the Company;
(12) the distribution, as a dividend or otherwise, of Capital Stock of, or Indebtedness owed to the Company or a Restricted Subsidiary by, any Unrestricted Subsidiary, the issuance of which is permitted by this Indenture.;
(c13) payments or distributions to satisfy dissenters’ rights, pursuant to or in connection with a consolidation, merger or transfer of assets that complies with the provisions of this Indenture applicable to mergers, consolidations and transfers of all or substantially all of the property and assets of the Company;
(14) the purchase, redemption, acquisition, cancellation or other retirement for a nominal value per right of any rights granted to all of the holders of Common Stock of the Company pursuant to any shareholders’ rights plan adopted for the purpose of protecting shareholders from unfair takeover tactics; provided that any such purchase, redemption, acquisition, cancellation or other retirement of such rights is not for the purpose of evading the limitations of this Section 4.07 (all as determined in good faith by a senior financial officer of the Company);
(15) Restricted Payments in an aggregate amount under this clause (15) at any time outstanding not to exceed the greater of $550.0 million and 40.0% of Consolidated Cash Flow (for the period of the four most recent consecutive fiscal quarters for which internal financial statements are available) (determined as of the date of any Restricted Payment pursuant to this clause (15));
(16) Restricted Payments in an aggregate amount in any fiscal year not to exceed an amount equal to 6.0% of the Market Capitalization; provided, that at least one class of the Company’s Common Stock has been listed on The New York Stock Exchange (or, if the primary listing of such Common Stock is on another exchange, on such other exchange) for the 30 consecutive trading days immediately preceding the date of such Restricted Payment;
(17) other Restricted Payments so long as the Consolidated Leverage Ratio, calculated as of the date of such Restricted Payment and after giving pro forma effect thereto (including, without limitation, to the incurrence of any Indebtedness to finance such Restricted Payment), does not exceed 4.25 to 1.0;
(18) distributions or payments of Receivables Fees and purchases of Receivables in connection with any Qualified Receivables Transactions or any repurchase obligation in connection therewith; and
(19) Restricted Payments in an amount that does not exceed the aggregate amount of Excluded Contributions received since the Issue Date; provided that in the case of clauses (16) and (17), no Default shall have occurred and be continuing. 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 For purposes of any non-cash Restricted Payment shall be determined by an officer of the Company. In determining compliance with this Section 4.07, in the event that a Restricted Payment meets the criteria of more than one of the exceptions described in clauses (i1) through (xv19) above or is entitled to be made pursuant to this Section 4.07(a) or one or more clauses of the first paragraph definition of this covenant“Permitted Investments”, the Company maywill be permitted, in its sole discretion, classifyto classify the Restricted Payment and/or Permitted Investment, and may or later reclassify from time to time, such the Restricted Payment and/or Permitted Investment in whole or in part among such clauses, in any manner that complies with this Section 4.07. For avoidance of doubt, nothing in this Indenture will restrict the repurchase, redemption, defeasance or other acquisition or retirement for value of the Notes or any portion thereof into or among of the Company’s other outstanding senior notes, including any of such applicable provisionscall premium paid in connection therewith.
Appears in 3 contracts
Samples: Indenture (Post Holdings, Inc.), Indenture (Post Holdings, Inc.), Indenture (Post Holdings, Inc.)
Restricted Payments. (a) The Company shall will not, and shall will not cause or 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, 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 holders (other than (A) dividends or distributions accrued or payable in Equity Interests (other than Disqualified InterestsStock) of the Company or (B) any of its Restricted Subsidiaries and other than dividends or distributions payable to the Company or a Restricted Subsidiary of the CompanySubsidiary);
(ii2) 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 the Company (other than any such Equity Interests owned by the Company or any Restricted Subsidiary entity of the Company);
(iii3) make any principal payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness of the Company or any Guarantor that is expressly contractually subordinated in right of payment to the Notes or to any Note Guarantee (other than excluding any intercompany Indebtedness permitted under clause (vi) between or among the Company and any of the definition of “Permitted Debt”) its Restricted Subsidiaries), except (ai) a payment of interest or principal at the Stated Maturity thereof or (bii) the purchase, repurchase or other acquisition of any such Indebtedness purchased in anticipation of satisfying a sinking fund obligation, principal installment or final scheduled maturity, in each case, case due within one year of the date of such purchase, repurchase or other acquisition; or
(iv4) make any Restricted Investment (all such payments and other actions set forth in these clauses (ia)(1) through (iva)(4) above being collectively referred to as “Restricted Payments”), unless, at the time of and after giving effect to any such Restricted Payment:
(Aa) no Default or Event of Default shall have has occurred and be is continuing or would occur as a consequence thereofof such Restricted Payment;
(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 Fixed Charge Coverage Ratio test set forth in Section 4.09(a)) hereof; and
(Cc) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after August 27since October 1, 2012 (excluding Restricted Payments permitted by clauses (i) (provided that at the time of declaring such dividend, such dividend was counted as a Restricted Payment) (iiSections 4.07(b)(2), (iii3), (iv4), (v), (vi), (vii), (viii), (ix), (x), (xi), (xii), (xiii), (xiv7) and (xv12) of Section 4.07(b)hereof), is less than the sum, without duplication, of:
(1i) 50% of the Consolidated Net Income of the Company for the period (taken as one accounting period) from April 2October 1, 2012 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
(2ii) 100% of the aggregate net proceeds, including cash proceeds and the fair market value Fair Market Value of any property or Capital Interests, marketable securities received by the Company since August 27, 2012 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 InterestsStock) or from the issue or sale of convertible or exchangeable Disqualified Interests Stock of the Company or convertible or exchangeable debt securities of the Company Company, in each case that have been converted into such or exchanged for Equity Interests of the Company (other than Equity Interests (or Disqualified Interests Stock or convertible debt securities) sold to a Subsidiary of the Company), together with the aggregate cash and Cash Equivalents received by the Company or any of its Restricted Subsidiaries at the time of such conversion or exchange plus the amount by which Indebtedness of the Company and its Restricted Subsidiaries is reduced upon the conversion or exchange subsequent to August 27, 2012 of any Indebtedness or Disqualified Interests which are convertible into or exchangeable for Qualified Capital Interests of the Company or any of its Restricted Subsidiaries, ; plus
(3iii) to the extent that any Restricted Investment that was made after the Issue Date is (a) sold, disposed of or otherwise cancelled, liquidated or repaid, 100% of the aggregate amount received in cash and the Fair Market Value of marketable securities received; or (b) made in an entity that subsequently becomes a Restricted Subsidiary, including 100% of the fair market value Fair Market Value of the Company’s Restricted Investment as of the date such entity becomes a Restricted Subsidiary; plus
(iv) to the extent that any property received Unrestricted Subsidiary of the Company designated as such after August 27the Issue Date is redesignated as a Restricted Subsidiary, 2012 by means of (A) the sale or other disposition (other than to is merged or consolidated into the Company or a Restricted Subsidiary) of Restricted Investments made by the Company , or its Restricted Subsidiaries and repurchases and redemptions of such Restricted Investments from the Company or its Restricted Subsidiaries and repayments of loans or advances which constitute Restricted Investments all of the Company or its Restricted Subsidiaries or (B) the sale (other than to the Company or a Restricted Subsidiary) assets of the Capital Interests of an Unrestricted Subsidiary or a distribution from an Unrestricted Subsidiary (other than in each case to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment) or a dividend from an Unrestricted Subsidiary, plus
(4) in the case of the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary or the merger or consolidation of an Unrestricted Subsidiary into the Company or a Restricted Subsidiary or the transfer of assets of an Unrestricted Subsidiary are transferred to the Company or a Restricted Subsidiary, in each case, after the fair market value Issue Date, the Fair Market Value of the Company’s Restricted Investment in such Unrestricted Subsidiary as of the date of such redesignation, merger, consolidation or transfer of assets to the extent such investments reduced the restricted payments capacity under this clause (other than c) and were not previously repaid or otherwise reduced; plus
(v) 100% of any dividends or distributions received by the Company or a Restricted Subsidiary after the Issue Date from an Unrestricted Subsidiary to the extent that such dividends or distributions were not otherwise included in the Investment in such Unrestricted Subsidiary constituted a Permitted Investment), plus
(5) $141.0 million. The Board Consolidated Net Income of Directors 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 for such period (excluding, for the avoidance of doubt, repayments of, or interest payments in respect of, any Designated Proceeds Restricted Payment, any Ocean Subsidiaries in Permitted Investment or the Subsidiary so designated will be deemed to be Restricted Payments or Permitted Investments, in the Company’s discretion, at the time of such designation and will reduce the amount available for Restricted Payments or Permitted Investments, as applicable. 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 Payments or Permitted Investments would be permitted at such time and if such Restricted Subsidiary otherwise meets pursuant to clause (16) or (17) of the definition of an Unrestricted Subsidiarythereof).
(b) The preceding provisions of Section 4.07(a) shall hereof will not prohibit:
(i1) the payment of any dividend or other distribution or the consummation of any redemption within 60 days after the date of declaration of the dividend or call for giving of the redemption thereofnotice, as the case may be, if at said the date of declaration or call for notice, the dividend or redemption such payment would have complied with the provisions of this Indenture;
(ii2) the making of any Restricted Payment in exchange for, or out of or with the net cash proceeds of the substantially concurrent sale (other than to a Subsidiary of the Company) of, Equity Interests of the Company (other than any Disqualified InterestsStock) or from a 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 redemption, Restricted Payment will be excluded from Section 4.07(a)(4)(c)(ii) and will not be considered to be net cash proceeds from an Equity Offering for purposes of Section 3.07 hereof;
(3) the repurchase, retirementredemption, defeasance or other acquisition shall be excluded from Section 4.07(a)(C)(2);
(iii) the defeasance, redemption, repurchase, replacement, extension, renewal, refinancing or retirement for value of Indebtedness of the Company, or other acquisition of any Guarantor that is contractually subordinated Indebtedness to the Notes or Disqualified Interests in exchange for or to any Note Guarantee with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness;
(iv4) the declarationso long as no Default or Event of Default has occurred and is continuing, or payment of any dividend or other distribution 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 Restricted Subsidiary of the Company held by any current or former officer, director, employee, employee or consultant or agent of the Company or any of its Restricted Subsidiaries (or Heirs or other permitted transferees thereof) upon deathpursuant to any equity subscription agreement, disability, retirement, severance or termination of employment or service or in connection with a stock option plan or agreement, shareholders agreementrestricted stock grant, shareholders’ agreement or similar agreement, plan or arrangement, including amendments thereto; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may not exceed: (A) exceed $10.0 1.0 million in the aggregate in any calendar year, twelvemonth period with unused amounts being carried over to any subsequent twelve-month period subject to a maximum aggregate amount of $2.0 million being available to be used in any later calendar yeartwelve month period; provided and provided, further, that such amount in any calendar year twelve-month period may be increased in by an amount not to exceed the net cash proceeds from the sale of Equity Interests (other than Disqualified Interests) of the Company to any officer, director, employee or agent of the Company or any a Restricted Subsidiary received by the Company or a Restricted Subsidiary during such twelvemonth period, in each case to members of management, directors or consultants of the Company that occurs after the date Company, any of this Indenture, its Restricted Subsidiaries or any of its direct or indirect parent companies to the extent such net the cash proceeds from the sale of Equity Interests have not otherwise been applied to make the making of Restricted Payments pursuant to Section 4.07(a)(C)(2); plus (B4.07(a)(4)(c) the cash proceeds of key man life insurance policies received by the Company and its Restricted Subsidiaries after the date or Section 4.07(b)(2) of this Indenture that are used for paragraph or to an optional redemption of the repurchase, redemption or other acquisition or retirement for value owned by the individual (or such individual’s estate) that is the subject of such insuranceNotes pursuant to Section 3.07 hereof;
(vi5) the repurchase of Equity Interests deemed to occur upon the exercise of options, warrants or other convertible securities stock options to the extent such Equity Interests represent a portion of the exercise price of those stock options;
(6) so long as no Default or Event of Default has occurred and is continuing, warrants 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 preferred stock of any Restricted Subsidiary issued on or after the Issue Date in accordance with Section 4.09 hereof;
(7) payments of cash, dividends, distributions, advances or other convertible securities and Restricted Payments by the Company or any of its Restricted Subsidiaries to allow the payment of cash payments in lieu of the issuance of fractional shares in connection with upon (i) the exercise of options, warrants, options or other convertible securitieswarrants or (ii) the conversion or exchange of Capital Stock of any such Person;
(viii) the payment of any dividend (or, in the case of any partnership or limited liability company, any similar distribution) by a Restricted Subsidiary (other than a Xxxxx Act Compliant Entity) to the holders of its Equity Interests (other than the Company or any Restricted Subsidiary) on no more than a pro rata basis or (ii) the payment of any dividend (or, in the case of any partnership or limited liability company, any similar distribution) by a Xxxxx Act Compliant Entity to the holders of its Equity Interests (other than the Company or any Restricted Subsidiary) in an aggregate amount not to exceed in any calendar year $2.0 million per passenger cruise vessel owned by or contracted to be owned by such Xxxxx Act Compliant Entity;
(9) so long as no Default or Event of Default has occurred and is continuing, any Designated Proceeds Restricted Payment;
(10) the declaration and payment of regular quarterly regularly scheduled or accrued dividends on the Company’s Equity Interests in accordance with past practice and not to exceed $0.05 per share;
(viii) additional Restricted Payments not to exceed $150.0 million after August 27, 2012;
(ix) the repurchase holders of preferred stock of the Company’s Equity Interests Company issued prior to the Issue Date in an aggregate amount not to exceed $50.0 million after August 27, 2012150,000 in any calendar year;
(x11) distributions so long as no Default or payments Event of Securitization Fees Default has occurred and purchases of Securitization Assets pursuant is continuing, other Restricted Payments in an aggregate amount not to a Securitization Repurchase Obligation in connection with a Qualified Securitization Financing;exceed $10.0 million since the Issue Date; or
(xi) any payments made in connection with the consummation of the transactions on substantially the terms described in the Offering Memorandum;
(xii12) the payment of intercompany subordinated debta dividend to MISA Investments Limited in an aggregate amount not to exceed $175 million, the incurrence of which was permitted under Section 4.09(b)(vi);
(xiii) the purchase of fractional shares by the Company upon conversion of plus any securities of the Company into Capital Interests of the Company;
(xiv) the repurchaseamounts necessary to pay unpaid interest, redemption premiums, fees, expenses or other acquisition or retirement for value of subordinated Indebtedness or Disqualified Interests pursuant to the provisions similar to those described under Section 4.14 and Section 4.10; provided that all Notes tendered by Holders of the Notes amounts in connection with any redemption; the related Change of Control Offer or Asset Sale Offer, as applicable, have been repurchased, redeemed or acquired for value in full; and
(xv) payment of dividends on Disqualified Interests of the Company or a Restricted Subsidiary, the issuance proceeds of which is permitted shall be used by this IndentureMISA Investments Limited to fund the redemption of all of its outstanding 8.625% / 9.375% Senior PIK Toggle Notes due 2018.
(c) 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 be determined by an officer of the Company. In the event that a Restricted Payment meets the criteria of more than one of the exceptions described in (i) through (xv) above or is entitled to be made pursuant to the first paragraph of this covenant, the Company may, in its sole discretion, classify, and may later reclassify from time to time, such Restricted Payment or any portion thereof into or among any of such applicable provisions.
Appears in 3 contracts
Samples: Indenture (Viking Holdings LTD), Indenture (Viking Holdings LTD), Indenture (Viking Holdings 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 (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 (A) dividends or distributions accrued or payable in Equity Interests (other than Disqualified InterestsStock) of the Company or (B) and other than dividends or distributions payable to the Company or a Restricted Subsidiary of the Company);
(ii2) purchase, redeem repurchase, redeem, defease 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 the Company (Company, in each case held by Persons other than any such Equity Interests owned by the Company or any a Restricted Subsidiary of the Company);
(iii3) make any principal payment on or with respect to, or purchase, repurchase, redeem, defease or otherwise acquire or retire for value any Subordinated Indebtedness that is subordinated to the Notes or any Note Guarantee (other than Indebtedness permitted under clause (vi) of the definition of “Permitted Debt”) except (a) a payment of interest or principal at Stated Maturity or (b) the payment, purchase, repurchase repurchase, redemption, defeasance, acquisition or other acquisition retirement of any such (i) intercompany Indebtedness between or among the Company and its Restricted Subsidiaries, and (ii) Subordinated Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturitymaturity thereof, in each case, case due within one year of the date of such payment, purchase, repurchase repurchase, redemption, defeasance, acquisition or other acquisitionretirement); or
(iv4) make any Restricted Investment (all such payments and other actions set forth in clauses (i1) through (iv4) 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 Fixed Charge Coverage Ratio test set forth in Section 4.09(a); and
(C3) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after August 27February 3, 2012 (excluding Restricted Payments permitted by clauses clause (i) (provided that at the time of declaring such dividend, such dividend was counted as a Restricted Payment) (ii2), (iii3), (iv4), (v5), (vi6), (vii7), (viii8), (9), (ix10), (x11), (xi12), (xii13), (xiii14), (xiv15), (16) and or (xv17) of Section 4.07(b)), is less than the sum, without duplication, of:
(1A) 50% of the cumulative Consolidated Net Income (excluding any dividends or distributions to the extent the Company elects to include such dividends or distributions in clause (14)(b) or 20(b) of the definition of “Permitted Investments” in accordance with such clause) of the Company for the period (taken as one accounting period) from April 2commencing on January 1, 2012 2012, 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 (Payment; or, if such Consolidated Net Income for such period is a deficit, less minus 100% of such deficit), plus
(2B) 100% of the aggregate net proceeds, proceeds (including the fair market value of any property or Capital Interests, other than cash) received by the Company since August 27(other than any net proceeds or assets received in connection with the contribution of assets pursuant to the Separation Agreement) after February 3, 2012 2012, as a contribution to its common equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified Interests) or from the issue or sale of Disqualified Interests or debt securities of the Company that have been converted into such Equity Interests (other than Equity Interests (or Disqualified Interests or convertible debt securities) sold to a Subsidiary of the Company), together with the aggregate cash and Cash Equivalents received by the Company or any of its Restricted Subsidiaries at the time of such conversion or exchange plus the amount by which Indebtedness of the Company and its Restricted Subsidiaries is reduced upon the conversion or exchange subsequent to August 27, 2012 of any Indebtedness or Disqualified Interests which are convertible into or exchangeable for Qualified Capital Interests of the Company or any of its Restricted Subsidiaries, plus
(3) 100% of the amount received, including the fair market value of any property received after August 27, 2012 by means of (A) the sale or other disposition (other than to the Company or a Restricted Subsidiary) of Restricted Investments made by the Company or its Restricted Subsidiaries and repurchases and redemptions of such Restricted Investments from the Company or its Restricted Subsidiaries and repayments of loans or advances which constitute Restricted Investments of the Company or its Restricted Subsidiaries or (B) the sale (other than to the Company or a Restricted Subsidiary) of the Capital Interests of an Unrestricted Subsidiary or a distribution from an Unrestricted Subsidiary (other than in each case to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment) or a dividend from an Unrestricted Subsidiary, plus
(4) in the case of the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary or the merger or consolidation of an Unrestricted Subsidiary into the Company or a Restricted Subsidiary or the transfer of assets of an Unrestricted Subsidiary to the Company or a Restricted Subsidiary, the fair market value of the Investment in such Unrestricted Subsidiary (other than an Unrestricted Subsidiary to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment), plus
(5) $141.0 million. The Board of Directors 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 in the Subsidiary so designated will be deemed to be Restricted Payments or Permitted Investments, in the Company’s discretion, at the time of such designation and will reduce the amount available for Restricted Payments or Permitted Investments, as applicable. 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 Payments or Permitted Investments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary.
(b) Section 4.07(a) shall not prohibit:
(i) the payment of any dividend or other distribution or redemption within 60 days after the date of declaration or call for redemption thereof, if at said date of declaration or call for redemption such payment would have complied with the provisions of this Indenture;
(ii) the making of any Restricted Payment in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Subsidiary of the Company) of, Equity Interests of the Company (other than any Disqualified Interests) or from a contribution of capital to the Company; 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 Section 4.07(a)(C)(2);:
(iiii) the defeasance, redemption, repurchase, replacement, extension, renewal, refinancing or retirement or other acquisition of subordinated Indebtedness or Disqualified Interests in exchange for or with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness;
(iv) the declaration, or payment of any dividend or other distribution 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 current or former officer, director, employee, consultant or agent of Company or any of its Restricted Subsidiaries (or Heirs or other permitted transferees thereof) upon death, disability, retirement, severance or termination of employment or service or in connection with a stock option plan or agreement, shareholders agreement, or similar agreement, plan or arrangement, including amendments thereto; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may not exceed: (A) $10.0 million in any calendar year, with unused amounts being available to be used in any later calendar year; provided that such amount in any calendar year may be increased in an amount not to exceed the net cash proceeds from the sale of Equity Interests (other than Disqualified InterestsStock or Designated Preferred Stock) of the Company to any officerCompany, director, employee or agent of including the Company or any Subsidiary of the Company that occurs after the date of this Indenture, to the extent such net cash proceeds have not otherwise been applied to make Restricted Payments pursuant to Section 4.07(a)(C)(2)Existing Convertible Preferred Stock; plus (B) the cash proceeds of key man life insurance policies received by the Company and its Restricted Subsidiaries after the date of this Indenture that are used for the repurchase, redemption or other acquisition or retirement for value owned by the individual (or such individual’s estate) that is the subject of such insurance;
(vi) the repurchase of Equity Interests deemed to occur upon the exercise of options, warrants or other convertible securities to the extent such Equity Interests represent a portion of the exercise price of those options, warrants or other convertible securities and cash payments in lieu of the issuance of fractional shares in connection with the exercise of options, warrants, or other convertible securities;
(vii) the declaration and payment of regular quarterly dividends on the Company’s Equity Interests in accordance with past practice and not to exceed $0.05 per share;
(viii) additional Restricted Payments not to exceed $150.0 million after August 27, 2012;
(ix) the repurchase of the Company’s Equity Interests in an amount not to exceed $50.0 million after August 27, 2012;
(x) distributions or payments of Securitization Fees and purchases of Securitization Assets pursuant to a Securitization Repurchase Obligation in connection with a Qualified Securitization Financing;
(xi) any payments made in connection with the consummation of the transactions on substantially the terms described in the Offering Memorandum;
(xii) the payment of intercompany subordinated debt, the incurrence of which was permitted under Section 4.09(b)(vi);
(xiii) the purchase of fractional shares by the Company upon conversion of any securities of the Company into Capital Interests of the Company;
(xiv) the repurchase, redemption or other acquisition or retirement for value of subordinated Indebtedness or Disqualified Interests pursuant to the provisions similar to those described under Section 4.14 and Section 4.10; provided that all Notes tendered by Holders of the Notes in connection with the related Change of Control Offer or Asset Sale Offer, as applicable, have been repurchased, redeemed or acquired for value in full; and
(xv) payment of dividends on Disqualified Interests of the Company or a Restricted Subsidiary, the issuance of which is permitted by this Indenture.
(c) 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 Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall be determined by an officer of the Company. In the event that a Restricted Payment meets the criteria of more than one of the exceptions described in (i) through (xv) above or is entitled to be made pursuant to the first paragraph of this covenant, the Company may, in its sole discretion, classify, and may later reclassify from time to time, such Restricted Payment or any portion thereof into or among any of such applicable provisions.or
Appears in 3 contracts
Samples: Indenture (Post Holdings, Inc.), Indenture (Post Holdings, Inc.), Indenture (Post Holdings, Inc.)
Restricted Payments. EastGroup Properties, Inc. will not make any Restricted Payment during any calendar quarter which, when added to all Restricted Payments made during the three (a3) The Company immediately preceding calendar quarters, exceeds ninety percent (90%) of the Funds From Operations during the immediately preceding four (4) calendar quarters; provided that the foregoing shall not prohibit EastGroup Properties, Inc. from (x) making the minimum amount of Restricted Payments required to be made in order for EastGroup Properties, Inc. to comply with the provisions of Section 5.11, or (y) issuing stock in EastGroup Properties, Inc. to a transferor (not an Affiliate of any Obligor) of Property to the Borrower as a result of said transferor’s election to convert partnership interests in Operating Partnership to stock in EastGroup Properties, Inc. pursuant to agreements with said transferor allowing said conversion as a portion of the consideration for the transfer. Notwithstanding the foregoing, after the occurrence of an Event of Default, EastGroup Properties, Inc. will not make any Restricted Payment except as required by clause (x) above, provided that, if, as a result of the occurrence of any Event of Default any of the Obligations have been accelerated pursuant to Section 7.1, the Borrower shall not, and shall not permit any of its Restricted Subsidiaries Subsidiary 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 (A) dividends or distributions accrued or payable in Equity Interests (other than Disqualified Interests) of the Company or (B) 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 the Company (other than any such Equity Interests owned by the Company or any Restricted Subsidiary of the Company);
(iii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness that is subordinated to the Notes or any Note Guarantee (other than Indebtedness permitted under clause (vi) of the definition of “Permitted Debt”) except (a) a payment of interest or principal at Stated Maturity or (b) the purchase, repurchase or other acquisition of any such Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case, due within one year of the date of such purchase, repurchase or other acquisition; or
(iv) make any Restricted Investment (all such payments and other actions set forth in clauses (i) through (iv) above being collectively referred Payments to as “Restricted Payments”), unless, at the time of and after giving effect to such Restricted Payment:
(A) no 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 Fixed Charge Coverage Ratio test set forth in Section 4.09(a); and
(C) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after August 27, 2012 (excluding Restricted Payments permitted by clauses (i) (provided that at the time of declaring such dividend, such dividend was counted as a Restricted Payment) (ii), (iii), (iv), (v), (vi), (vii), (viii), (ix), (x), (xi), (xii), (xiii), (xiv) and (xv) of Section 4.07(b)), is less than the sum, without duplication, of
(1) 50% of the Consolidated Net Income of the Company for the period (taken as one accounting period) from April 2, 2012 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
(2) 100% of the aggregate net proceeds, including the fair market value of any property or Capital Interests, received by the Company since August 27, 2012 as a contribution to its equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified Interests) or from the issue or sale of Disqualified Interests or debt securities of the Company that have been converted into such Equity Interests (other than Equity Interests (or Disqualified Interests or convertible debt securities) sold to a Subsidiary of the Company), together with the aggregate cash and Cash Equivalents received by the Company or any of its Restricted Subsidiaries at the time of such conversion or exchange plus the amount by which Indebtedness of the Company and its Restricted Subsidiaries is reduced upon the conversion or exchange subsequent to August 27, 2012 of any Indebtedness or Disqualified Interests which are convertible into or exchangeable for Qualified Capital Interests of the Company or any of its Restricted Subsidiaries, plus
(3) 100% of the amount received, including the fair market value of any property received after August 27, 2012 by means of (A) the sale or other disposition (Person other than to the Company Borrower or a Restricted any Subsidiary) of Restricted Investments made by the Company or its Restricted Subsidiaries and repurchases and redemptions of such Restricted Investments from the Company or its Restricted Subsidiaries and repayments of loans or advances which constitute Restricted Investments of the Company or its Restricted Subsidiaries or (B) the sale (other than to the Company or a Restricted Subsidiary) of the Capital Interests of an Unrestricted Subsidiary or a distribution from an Unrestricted Subsidiary (other than in each case to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment) or a dividend from an Unrestricted Subsidiary, plus
(4) in the case of the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary or the merger or consolidation of an Unrestricted Subsidiary into the Company or a Restricted Subsidiary or the transfer of assets of an Unrestricted Subsidiary to the Company or a Restricted Subsidiary, the fair market value of the Investment in such Unrestricted Subsidiary (other than an Unrestricted Subsidiary to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment), plus
(5) $141.0 million. The Board of Directors 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 this provision “Restricted Subsidiaries in the Subsidiary so designated will be deemed to be Restricted Payments or Permitted Investments, in the Company’s discretion, at the time of such designation and will reduce the amount available for Restricted Payments or Permitted Investments, as applicable. 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 Payments or Permitted Investments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary.
(b) Section 4.07(a) shall not prohibit:
Payment” means (i) the payment of any dividend or other distribution on any shares of a Person’s capital stock (except dividends payable solely in shares of its capital stock or redemption within 60 days after the date in rights to subscribe for or purchase shares of declaration its capital stock) or call for redemption thereof, if at said date of declaration or call for redemption such payment would have complied with the provisions of this Indenture;
(ii) the making of any Restricted Payment in exchange for, or out payment on account of the net cash proceeds of the substantially concurrent sale (other than to a Subsidiary of the Company) of, Equity Interests of the Company (other than any Disqualified Interests) or from a contribution of capital to the Company; 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 Section 4.07(a)(C)(2);
(iii) the defeasancepurchase, redemption, repurchase, replacement, extension, renewal, refinancing or retirement or other acquisition of subordinated Indebtedness or Disqualified Interests in exchange for or with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness;
(iv) the declaration, or payment of any dividend or other distribution 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 current or former officer, director, employee, consultant or agent of Company or any of its Restricted Subsidiaries (or Heirs or other permitted transferees thereof) upon death, disability, retirement, severance or termination of employment or service or in connection with a stock option plan or agreement, shareholders agreement, or similar agreement, plan or arrangement, including amendments thereto; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may not exceed: (A) $10.0 million in any calendar year, with unused amounts being available to be used in any later calendar year; provided that such amount in any calendar year may be increased in an amount not to exceed the net cash proceeds from the sale of Equity Interests (other than Disqualified Interests) of the Company to any officer, director, employee or agent of the Company or any Subsidiary of the Company that occurs after the date of this Indenture, to the extent such net cash proceeds have not otherwise been applied to make Restricted Payments pursuant to Section 4.07(a)(C)(2); plus (B) the cash proceeds of key man life insurance policies received by the Company and its Restricted Subsidiaries after the date of this Indenture that are used for the repurchase, redemption or other acquisition or retirement for value owned by the individual (or such individual’s estate) that is the subject of such insurance;
(vi) the repurchase of Equity Interests deemed to occur upon the exercise of options, warrants or other convertible securities to the extent such Equity Interests represent a portion of the exercise price of those options, warrants or other convertible securities and cash payments in lieu of the issuance of fractional shares in connection with the exercise of options, warrants, or other convertible securities;
(vii) the declaration and payment of regular quarterly dividends on the Company’s Equity Interests in accordance with past practice and not to exceed $0.05 per share;
(viii) additional Restricted Payments not to exceed $150.0 million after August 27, 2012;
(ix) the repurchase of the Company’s Equity Interests in an amount not to exceed $50.0 million after August 27, 2012;
(x) distributions any shares of a Person’s capital stock or payments of Securitization Fees and purchases of Securitization Assets pursuant to a Securitization Repurchase Obligation in connection with a Qualified Securitization Financing;
(xiy) any payments made in connection with the consummation of the transactions on substantially the terms described in the Offering Memorandum;
(xii) the payment of intercompany subordinated debtoption, the incurrence of which was permitted under Section 4.09(b)(vi);
(xiii) the purchase of fractional shares by the Company upon conversion of any securities of the Company into Capital Interests of the Company;
(xiv) the repurchase, redemption warrant or other acquisition or retirement for value right to acquire shares of subordinated Indebtedness or Disqualified Interests pursuant to the provisions similar to those described under Section 4.14 and Section 4.10; provided that all Notes tendered by Holders of the Notes in connection with the related Change of Control Offer or Asset Sale Offer, as applicable, have been repurchased, redeemed or acquired for value in full; and
(xv) payment of dividends on Disqualified Interests of the Company or a Restricted Subsidiary, the issuance of which is permitted by this IndenturePerson’s capital stock.
(c) 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 Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall be determined by an officer of the Company. In the event that a Restricted Payment meets the criteria of more than one of the exceptions described in (i) through (xv) above or is entitled to be made pursuant to the first paragraph of this covenant, the Company may, in its sole discretion, classify, and may later reclassify from time to time, such Restricted Payment or any portion thereof into or among any of such applicable provisions.
Appears in 3 contracts
Samples: Credit Agreement (Eastgroup Properties Inc), Credit Agreement (Eastgroup Properties Inc), Credit Agreement (Eastgroup Properties Inc)
Restricted Payments. (a) The Company shall Borrower 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 CompanyBorrower’s or any of its Restricted Subsidiaries’ Equity Interests (includingInterests, without limitation, including any payment dividend or distribution payable 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 (consolidation, other than (Ax) dividends or distributions accrued or payable in Equity Interests (other than Disqualified InterestsStock) of the Company Borrower, or (By) dividends or distributions to by a Restricted Subsidiary so long as, in the Company case of any dividend or distribution payable on or in respect of any class or series of securities issued by a Restricted Subsidiary other than a Wholly-Owned Subsidiary, the Borrower or a Restricted Subsidiary receives at least its pro rata share of the Company);
such dividend or distribution in accordance with its Equity Interests in such class or series of securities; (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 the Company (other than any such Equity Interests owned by the Company or any Restricted Subsidiary of the Company);
(iii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Equity Interests of the Borrower, including in connection with any merger or consolidation; (iii) make any principal payment on, or redeem, repurchase, defease or otherwise acquire or retire for value in each case, prior to any scheduled repayment, sinking fund payment or maturity, any Subordinated Indebtedness that is subordinated to the Notes or any Note Guarantee (other than the payment, redemption, repurchase, defeasance, acquisition or retirement of: (x) Indebtedness permitted under clause (vi) of the definition of “Permitted Debt”) except (a) a payment of interest or principal at Stated Maturity Section 7.02(b)(7); or (by) the purchase, repurchase or other acquisition of any such Subordinated Indebtedness purchased in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case, case due within one year of the date of such purchasepayment, repurchase redemption, repurchase, defeasance, acquisition or other acquisition; or
(iv) make any Restricted Investment retirement (all such payments and other actions set forth in clauses (i) through (iviii) above being collectively referred to as “Restricted Payments”), unlessexcept as follows:
(a) so long as (i) no Default shall have occurred and be continuing or would occur as a consequence thereof and (ii) the Consolidated Net Leverage Ratio of the Borrower and its Restricted Subsidiaries for the most recently ended Test Period for which financial statements have been delivered pursuant to Section 6.01 would not have been greater than 5.00 to 1.00, determined on a Pro Forma Basis, Restricted Payments, together with the aggregate amount of all other Restricted Payments made by the Borrower and its Restricted Subsidiaries after the Closing Date pursuant to this Section 7.05(a), in an aggregate amount not to exceed the Available Amount;
(b) the payment of any dividend or distribution or the consummation of any irrevocable redemption within sixty (60) days after the date of declaration thereof or the giving of such irrevocable notice, as applicable, if at the date of declaration or the giving of such notice such payment would have complied with the provisions of this Agreement as if it were and is deemed at such time to be a Restricted Payment at the time of such notice;
(c) the redemption, repurchase, retirement or other acquisition of any Equity Interests of the Borrower, or of Subordinated Indebtedness of any Loan Party, in exchange for, or out of the proceeds of the substantially concurrent issuance or sale (other than to a Restricted Subsidiary or to an employee stock ownership plan or any trust established by the Borrower) of, Equity Interests of the Borrower (other than Disqualified Stock) (collectively, the “Refunding Capital Stock”);
(d) the purchase, redemption, defeasance, repurchase or other acquisition or retirement of Subordinated Indebtedness of the Borrower or a Guarantor made by exchange for, or out of the proceeds of the substantially concurrent issuance of, new Indebtedness of the Borrower or a Guarantor, as the case may be, which is incurred in compliance with Section 7.02 so long as:
(i) the principal amount (or accreted value, if applicable) of such new Indebtedness does not exceed the principal amount (or accreted value, if applicable) of, plus any accrued and unpaid interest on, the Subordinated Indebtedness being so purchased, redeemed, defeased, repurchased, acquired or retired for value, plus the amount of any premium required to be paid under the terms of the instrument governing the Subordinated Indebtedness being so purchased, redeemed, defeased, repurchased, acquired or retired and any reasonable fees and expenses incurred in connection with the issuance of such new Indebtedness;
(ii) such new Indebtedness is subordinated to the Obligations or the applicable Guarantee at least to the same extent as such Subordinated Indebtedness so purchased, exchanged, redeemed, defeased, repurchased, acquired or retired for value;
(iii) such new Indebtedness has a final scheduled maturity date equal to or later than the final scheduled maturity date of the Subordinated Indebtedness being so purchased, exchanged, redeemed, defeased, repurchased, acquired or retired; and
(iv) such new Indebtedness has a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the Subordinated Indebtedness being so purchased, exchanged, redeemed, defeased, repurchased, acquired or retired;
(e) 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 Borrower held by any future, present or former employee, director or consultant of the Borrower or any of its Subsidiaries pursuant to any management equity plan or stock option plan or any other management or employee benefit plan or agreement, or any stock subscription or shareholder agreement; provided, however, that the aggregate Restricted Payments made under this Section 7.05(e) do not exceed in any calendar year $25 million (with unused amounts in any calendar year being carried over for one additional calendar year); provided, further, that such amount in any calendar year may be increased by an amount not to exceed:
(i) the cash proceeds from the sale of Equity Interests (other than Disqualified Stock) of the Borrower to members of management, directors or consultants of the Borrower or any of its Subsidiaries that occurs after the Closing Date, to the extent the cash proceeds from the sale of such Equity Interests have not otherwise been applied to the payment of Restricted Payments or to the making of any Permitted Investment (pursuant to clause (r) of the definition thereof) by virtue of the Available Amount; plus
(ii) the cash proceeds of key man life insurance policies received by the Borrower or any Restricted Subsidiary after the Closing Date; less
(iii) the amount of any Restricted Payments previously made with the cash proceeds described in clauses (i) and (ii) of this Section 7.05(e); and provided, further, that cancellation of Indebtedness owing to the Borrower or any Restricted Subsidiary from members of management of the Borrower or any of the Borrower’s Restricted Subsidiaries in connection with a repurchase of Equity Interests of the Borrower will not be deemed to constitute a Restricted Payment for purposes of this Section 7.05 or any other provision of this Agreement;
(f) repurchases of Equity Interests deemed to occur (i) upon exercise of stock options, stock appreciation rights or warrants if such Equity Interests represent a portion of the exercise price of such options, stock appreciation rights or warrants or (ii) for purposes of satisfying any required tax withholding obligation upon the exercise or vesting of a grant or award that was granted or awarded to an employee;
(g) any other Restricted Payment, so long as (i) no Default shall have occurred and be continuing or would occur as a consequence thereof and (ii) on a Pro Forma Basis after giving effect to such Restricted Payment:, the Consolidated Net Leverage Ratio is less than 2.50 to 1.00;
(Ah) distributions or payments of Receivables Fees;
(i) the repurchase, redemption or other acquisition for value of Equity Interests of the Borrower deemed to occur in connection with paying cash in lieu of fractional shares of such Equity Interests in connection with a share dividend, distribution, share split, reverse share split, merger, consolidation, amalgamation or other business combination of the Borrower or its Subsidiaries, in each case, permitted under this Agreement;
(j) so long as no Event of Default shall have occurred and be continuing or would occur as a consequence thereof;
(B) , the Company woulddistribution, at the time by dividend or otherwise, of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning shares of the applicable four-quarter periodCapital Stock of, have been permitted to incur at least $1.00 of additional or Indebtedness pursuant owed to the Fixed Charge Coverage Ratio test set forth in Section 4.09(a); and
(C) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after August 27, 2012 (excluding Restricted Payments permitted by clauses (i) (provided that at the time of declaring such dividend, such dividend was counted as a Restricted Payment) (ii), (iii), (iv), (v), (vi), (vii), (viii), (ix), (x), (xi), (xii), (xiii), (xiv) and (xv) of Section 4.07(b)), is less than the sum, without duplication, of
(1) 50% of the Consolidated Net Income of the Company for the period (taken as one accounting period) from April 2, 2012 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
(2) 100% of the aggregate net proceeds, including the fair market value of any property or Capital Interests, received by the Company since August 27, 2012 as a contribution to its equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified Interests) or from the issue or sale of Disqualified Interests or debt securities of the Company that have been converted into such Equity Interests (other than Equity Interests (or Disqualified Interests or convertible debt securities) sold to a Subsidiary of the Company), together with the aggregate cash and Cash Equivalents received by the Company or any of its Restricted Subsidiaries at the time of such conversion or exchange plus the amount by which Indebtedness of the Company and its Restricted Subsidiaries is reduced upon the conversion or exchange subsequent to August 27, 2012 of any Indebtedness or Disqualified Interests which are convertible into or exchangeable for Qualified Capital Interests of the Company or any of its Restricted Subsidiaries, plus
(3) 100% of the amount received, including the fair market value of any property received after August 27, 2012 by means of (A) the sale or other disposition (other than to the Company or a Restricted Subsidiary) of Restricted Investments made by the Company or its Restricted Subsidiaries and repurchases and redemptions of such Restricted Investments from the Company or its Restricted Subsidiaries and repayments of loans or advances which constitute Restricted Investments of the Company or its Restricted Subsidiaries or (B) the sale (other than to the Company or a Restricted Subsidiary) of the Capital Interests of an Unrestricted Subsidiary or a distribution from an Unrestricted Subsidiary (other than in each case to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment) or a dividend from an Unrestricted Subsidiary, plus
(4) in the case of the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary or the merger or consolidation of an Unrestricted Subsidiary into the Company Borrower or a Restricted Subsidiary or the transfer of assets of an by, Unrestricted Subsidiary to the Company or a Restricted Subsidiary, the fair market value of the Investment in such Unrestricted Subsidiary Subsidiaries (other than an Unrestricted Subsidiary to Subsidiaries, the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment), plus
(5) $141.0 million. The Board primary assets of Directors 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 in the Subsidiary so designated will be deemed to be Restricted Payments or Permitted Investments, in the Company’s discretion, at the time of such designation and will reduce the amount available for Restricted Payments or Permitted Investments, as applicable. 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 Payments or Permitted Investments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary.
(b) Section 4.07(a) shall not prohibit:
(i) the payment of any dividend or other distribution or redemption within 60 days after the date of declaration or call for redemption thereof, if at said date of declaration or call for redemption such payment would have complied with the provisions of this Indenture;
(ii) the making of any Restricted Payment in exchange for, or out of the net which are cash proceeds of the substantially concurrent sale (other than to a Subsidiary of the Company) of, Equity Interests of the Company (other than any Disqualified Interests) or from a contribution of capital to the Company; 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 Section 4.07(a)(C)(2and/or Cash Equivalents);
(iiik) for any taxable period in which the defeasance, redemption, repurchase, replacement, extension, renewal, refinancing or retirement or other acquisition of subordinated Indebtedness or Disqualified Interests in exchange for or with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness;
(iv) the declaration, or payment of any dividend or other distribution by a Subsidiary taxable income 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 current or former officer, director, employee, consultant or agent of Company or Borrower and/or any of its Restricted Subsidiaries (or Heirs or other permitted transferees thereof) upon deathis included in a consolidated, disability, retirement, severance or termination of employment or service or in connection with a stock option plan or agreement, shareholders agreement, combined or similar agreementincome tax group of which a direct or indirect parent of the Borrower is the common parent (a “Tax Group”), plan or arrangement, including amendments thereto; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may not exceed: (A) $10.0 million in any calendar year, with unused amounts being available to be used in any later calendar year; provided that such amount in any calendar year may be increased in an amount not to exceed the net cash proceeds tax liabilities that the Borrower and the applicable Subsidiaries, in the aggregate, would have been required to pay in respect of such taxable income if such entities were a standalone group of corporations separate from such Tax Group (it being understood and agreed that, if the sale of Equity Interests (other than Disqualified Interests) of the Company to any officer, director, employee or agent of the Company Borrower or any Subsidiary pays any portion of such tax liabilities directly to any taxing authority, a Restricted Payment in duplication of such amount shall not be permitted to be made pursuant to this clause (k)); provided, that, from and after the execution of the Company that occurs after tax matters agreement in connection with the date Transactions or the effectiveness of this IndentureAgreement, and while such tax matters agreement remains in effect, payments in respect of any taxes pursuant to this clause (k) shall not exceed the amounts required to be paid in respect of such taxes pursuant to such tax matters agreement;
(l) the declaration and payment of regularly scheduled or accrued dividends to holders of any class or series of Disqualified Stock of the Borrower or any Restricted Subsidiary or Preferred Stock of any Restricted Subsidiaries issued or incurred in accordance with Section 7.02;
(m) any Restricted Payment to fund the Transfers, so long as any Restricted Payments relating thereto are made in connection with or in anticipation of the Separation, so long as the Borrower is pursuing the Separation in good faith;
(n) any Restricted Payment to fund the Transactions (including the Transfers) to the extent such net cash funded with the proceeds have not otherwise been applied to make of the IPO, so long as any Restricted Payments pursuant to Section 4.07(a)(C)(2); plus (B) relating thereto are made in connection with or in anticipation of the cash proceeds of key man life insurance policies received by Separation, so long as the Company and its Restricted Subsidiaries after Borrower is pursuing the date of this Indenture that are used for the repurchase, redemption or other acquisition or retirement for value owned by the individual (or such individual’s estate) that is the subject of such insuranceSeparation in good faith;
(vio) payments of cash, or dividends, distributions or advances by the repurchase Borrower or any Restricted Subsidiary to allow the payment of Equity Interests deemed to occur upon the exercise of options, warrants or other convertible securities to the extent such Equity Interests represent a portion of the exercise price of those options, warrants or other convertible securities and cash payments in lieu of the issuance of fractional shares in connection with upon the exercise of options, warrants, options or other convertible securitieswarrants or upon the conversion or exchange of Capital Stock of any such Person;
(viip) mandatory redemptions or repurchases of Disqualified Stock the issuance of which itself constituted a Restricted Payment or Permitted Investment otherwise permissible hereunder; and
(q) the declaration and payment purchase, repurchase or other acquisition of regular quarterly dividends on the Company’s Equity Interests in accordance with past practice and not to exceed $0.05 per share;
(viii) additional Restricted Payments not to exceed $150.0 million after August 27, 2012;
(ix) the repurchase of the Company’s Equity Interests Subordinated Indebtedness in an amount not to exceed $50.0 million after August 27, 2012;
(x) distributions or payments of Securitization Fees and purchases of Securitization Assets pursuant to a Securitization Repurchase Obligation in connection with a Qualified Securitization Financing;
(xi) any payments made in connection with the consummation of the transactions on substantially the terms described in the Offering Memorandum;
(xii) the payment of intercompany subordinated debt, the incurrence of which was permitted under Section 4.09(b)(vi);
(xiii) the purchase of fractional shares by the Company upon conversion of any securities of the Company into Capital Interests of the Company;
(xiv) the repurchase, redemption or other acquisition or retirement for value of subordinated Indebtedness or Disqualified Interests pursuant to the provisions similar to those described under Section 4.14 and Section 4.10; provided that all Notes tendered by Holders of the Notes in connection with the related Change of Control Offer or Asset Sale Offer, as applicable, have been repurchased, redeemed or acquired for value in full; and
(xv) payment of dividends on Disqualified Interests of the Company or a Restricted Subsidiary, the issuance of which is permitted by this Indenture25 million.
(c) 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 Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall be determined by an officer of the Company. In the event that a Restricted Payment meets the criteria of more than one of the exceptions described in (i) through (xv) above or is entitled to be made pursuant to the first paragraph of this covenant, the Company may, in its sole discretion, classify, and may later reclassify from time to time, such Restricted Payment or any portion thereof into or among any of such applicable provisions.
Appears in 3 contracts
Samples: Credit Agreement (CBS Radio Inc.), Credit Agreement (CBS Radio Inc.), Credit Agreement (CBS Corp)
Restricted Payments. (a) The Parent 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 Parent Company’s or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Parent Company or any of its Restricted Subsidiaries) or to the direct or indirect holders of the Parent Company’s or any of its Restricted Subsidiaries’ Equity Interests in their capacity as such (other than (A) dividends or distributions accrued or payable in Equity Interests (other than Disqualified InterestsStock) of the Parent Company or (B) dividends or distributions to the Parent Company or a Restricted Subsidiary of the CompanySubsidiary);
(iib) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Parent Company) any Equity Interests of the Parent Company or any direct or indirect parent of the Parent Company or any Restricted Subsidiary (other than any such Equity Interests owned by the Parent Company or any Restricted Subsidiary of the CompanySubsidiary);
(iiic) make any principal payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value value, any Specified Indebtedness that is subordinated to the Notes or any Note Guarantee (other than any Specified Indebtedness permitted under clause (vi) of owing to the definition of “Permitted Debt”) Parent Company or a Restricted Subsidiary), except (a) a payment of interest principal (or principal at Stated Maturity or (b) the purchase, repurchase redemption, defeasance or other acquisition of any such Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case, due retirement for value) within one year of the date of such purchase, repurchase or other acquisitionStated Maturity thereof; or
(ivd) make any Restricted Investment (all such payments and other actions set forth in clauses (ia) through (ivd) 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 Parent 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 most recently ended four-quarter periodperiod for which internal financial statements are available, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.09(a); and
(Ciii) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Parent Company and its Restricted Subsidiaries after August 27, 2012 the Issue Date (excluding Restricted Payments permitted by clauses (i) (provided that at the time of declaring such dividend, such dividend was counted as a Restricted Payment) (ii), (iii), (iv), (v), (vi), (vii), (viii), (ix), (x), (xi), (xii), (xiii), (xiv) and (xvx) of Section 4.07(b)the next succeeding paragraph), is less than the sum, without duplication, of:
(1A) 50% of the Consolidated Net Income of the Company for the period (taken as one accounting period) from April 2, 2012 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 in each case such Consolidated Net Income for such period is a deficit, less minus 100% of such deficit)) of the Parent Company since the first day of the fiscal quarter following the fiscal quarter in which the Issue Date occurs, plus
(2B) the aggregate net cash proceeds received by the Parent Company after the Issue Date from the sale of Equity Interests or any Indebtedness that is convertible into Capital Stock (other than Disqualified Stock) of the Parent Company or any direct or indirect parent of the Parent Company and has been so converted, plus
(C) the aggregate cash and the fair market value, as determined in good faith by the Board of Directors of the Parent Company, of property and marketable securities received by the Parent Company as capital contributions on and after the Issue Date, plus
(D) 100% of the aggregate net proceeds, including amount of cash and the fair market value value, as determined in good faith by the Board of any Directors of the Parent Company, of property or Capital Interestsand marketable securities, in each case, received by on and after the Company since August 27, 2012 as a contribution to its equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified Interests) or from the issue or sale of Disqualified Interests or debt securities of the Company that have been converted into such Equity Interests (other than Equity Interests (or Disqualified Interests or convertible debt securities) sold to a Subsidiary of the Company), together with the aggregate cash and Cash Equivalents received by the Company or any of its Restricted Subsidiaries at the time of such conversion or exchange plus the amount by which Indebtedness of the Company and its Restricted Subsidiaries is reduced upon the conversion or exchange subsequent to August 27, 2012 of any Indebtedness or Disqualified Interests which are convertible into or exchangeable for Qualified Capital Interests of the Company or any of its Restricted Subsidiaries, plus
(3) 100% of the amount received, including the fair market value of any property received after August 27, 2012 Issue Date by means of (A) the sale or other disposition (other than to of the Parent Company or a Restricted Subsidiary) of Restricted Investments made by the Parent Company or its Restricted Subsidiaries and repurchases and redemptions of such Restricted Investments from the Parent Company or its Restricted Subsidiaries and repayments of loans or loan advances which constitute Restricted Investments of by the Parent Company or its Restricted Subsidiaries or (B) the sale (other than to the Parent Company or a Restricted Subsidiary) of the Capital Interests Stock of an Unrestricted Subsidiary or a distribution from an Unrestricted Subsidiary (other than than, in each case case, to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment) or a dividend from an Unrestricted Subsidiary, plus
(4E) in the case lesser of the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary or the merger or consolidation of an Unrestricted Subsidiary into the Company or a Restricted Subsidiary or the transfer of assets of an Unrestricted Subsidiary to the Company or a Restricted Subsidiary, (x) the fair market value of the Investment in such Unrestricted Subsidiary (other than an Unrestricted Subsidiary to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment), plus
(5) $141.0 million. The Board of Directors 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 Parent Company’s and its Restricted Subsidiaries Subsidiaries’ Investments in the any Unrestricted Subsidiary so designated will be deemed to be that is redesignated as a Restricted Payments or Permitted Investments, in the Company’s discretion, Subsidiary at the time of such designation redesignation and will reduce (y) the amount available for Restricted Payments or Permitted Investments, as applicable. 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 that were treated as Restricted Payments or Permitted Investments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted SubsidiaryInvestments, plus
(F) $50 million.
(be) Section 4.07(a) shall 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:
(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 call for the giving of the redemption thereofnotice, as the case may be, if at said the date of declaration or call for notice, such dividend or redemption such payment would have complied with the provisions of this IndentureIndenture (provided that the date of such declaration or notice shall be treated as the date on which such Restricted Payment shall have been made);
(ii) the making repurchase, redemption, defeasance, retirement or other acquisition of any Specified Indebtedness or of any Equity Interests of the Parent Company or any Restricted Payment Subsidiary in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Subsidiary of the Parent Company) of, Equity Interests of the Company (other than Disqualified Stock) of the Parent Company or Equity Interests of any Disqualified Interests) direct or from a contribution indirect parent company of capital the Parent Company (to the Company; provided that the amount of any extent such net cash proceeds that are utilized for any such redemption, repurchase, retirement, defeasance or other acquisition shall be excluded from Section 4.07(a)(C)(2contributed to the Parent Company);
(iii) the defeasance, redemption, repurchase, replacementdefeasance, extension, renewal, refinancing or retirement or other acquisition of subordinated Specified Indebtedness or Disqualified Interests in exchange for for, or with the net cash proceeds from an incurrence of of, Permitted Refinancing Indebtedness;
(iv) the declaration, or payment of any dividend (or, in the case of any partnership or other distribution limited liability company, any similar distribution) by a Restricted Subsidiary of the Company to the holders of any class 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 Parent Company or any Restricted Subsidiary of the Company held by any current or former officer, director, employee, consultant or agent member of Company the Parent Company’s (or any of its Restricted Subsidiaries (or Heirs or other permitted transferees thereofSubsidiaries’) upon deathmanagement pursuant to any management equity subscription agreement, disability, retirement, severance or termination of employment or service or in connection with a stock option plan or agreement, shareholders agreement, agreement or similar agreement, plan or arrangement, including amendments thereto; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may shall not exceed: exceed $10 million in any calendar year (A) with unused amounts in any calendar year being carried over to the next succeeding year, not to exceed an aggregate of $10.0 20 million in any calendar year, with unused amounts being available to be used in any later calendar year; provided that such amount in any calendar year may be increased in an amount not to exceed the net cash proceeds from the sale of Equity Interests (other than Disqualified Interests) of the Company to any officer, director, employee or agent of the Company or any Subsidiary of the Company that occurs after the date of this Indenture, to the extent such net cash proceeds have not otherwise been applied to make Restricted Payments pursuant to Section 4.07(a)(C)(2); plus (B) the cash proceeds of key man life insurance policies received by the Company and its Restricted Subsidiaries after the date of this Indenture that are used for the repurchase, redemption or other acquisition or retirement for value owned by the individual (or such individual’s estate) that is the subject of such insurance;
(vi) the repurchase of Equity Interests deemed to occur (x) upon the exercise of stock options, warrants or other securities convertible securities or exchangeable into Equity Interests to the extent such Equity Interests represent a portion of the exercise price of those stock options, warrants or other securities convertible securities and cash payments or exchangeable into Equity Interests or are surrendered to the Parent Company or any Restricted Subsidiary in lieu satisfaction of the issuance obligation of fractional shares in connection with the exercise of options, warrants, holder thereof to pay withholding or other convertible securitiestaxes or (y) upon the vesting or settlement of Equity Interests to the extent such Equity Interests are surrendered to the Parent Company or any Restricted Subsidiary in satisfaction of the obligation of the holder thereof to pay withholding or other taxes;
(vii) in the declaration event of a Change of Control, the payment, purchase, redemption, defeasance or other acquisition or retirement of any Specified Indebtedness, in each case, at a purchase price not greater than 101% (unless such excess amount is an otherwise permitted Restricted Payment) of the principal amount of such Specified Indebtedness, plus any accrued and payment unpaid interest thereon to the date of regular quarterly dividends on purchase; provided, however, that prior to such payment, purchase, redemption, defeasance or other acquisition or retirement, the Company’s Equity Interests in accordance with past practice Company or such Guarantor (or a third-party to the extent permitted by this Indenture) shall have made a Change of Control Offer as a result of such Change of Control and shall have repurchased all Notes validly tendered and not to exceed $0.05 per sharewithdrawn in connection with such Change of Control Offer;
(viii) additional in the event the Company has made an offer to purchase Notes pursuant to (x) clause (c) of the second paragraph of Section 4.07 with any Net Proceeds or (y) Section 4.19(c) with any Net Loss Proceeds, the payment, purchase, redemption, defeasance or other acquisition or retirement of any Specified Indebtedness, in each case, with any remaining amount of such Net Proceeds or Net Loss Proceeds at a purchase price not greater than 100% (unless such excess amount is an otherwise permitted Restricted Payments not Payment) of the principal amount of such Specified Indebtedness, plus any accrued and unpaid interest thereon; provided, however, that prior to exceed $150.0 million after August 27such payment, 2012purchase, redemption, defeasance or other acquisition or retirement, the Company shall have purchased all Notes required to be purchased by it with such Net Proceeds or Net Loss Proceeds pursuant to such provisions;
(ix) the repurchase making of any Restricted Investment, directly or indirectly, out of the Company’s net cash proceeds of substantially concurrent sales (other than to a Subsidiary) of Equity Interests in an amount not of the Parent Company or any direct or indirect parent of the Parent Company (to exceed $50.0 million after August 27, 2012;the extent such net cash proceeds are contributed to the Parent Company); and
(x) distributions or payments of Securitization Fees and purchases of Securitization Assets pursuant to a Securitization Repurchase Obligation in connection with a Qualified Securitization Financing;
(xi) any payments made in connection with the consummation of the transactions on substantially the terms described in the Offering Memorandum;
(xii) the payment of intercompany subordinated debt, the incurrence of which was permitted under Section 4.09(b)(vi);
(xiii) the purchase of fractional shares by the Company upon conversion of any securities of the Company into Capital Interests of the Company;
(xiv) the repurchase, redemption redemption, retirement or other acquisition of (i) minority Equity Interests of any Person that is a Restricted Subsidiary that were issued to the former owners of such Person (or retirement for value not acquired from the former owners of subordinated Indebtedness such Person originally), or Disqualified Interests to the former owners of any division or line of business acquired by such Restricted Subsidiary, in an acquisition transaction pursuant to which such Person became a Restricted Subsidiary or such Restricted Subsidiary acquired such division or line of business, (ii) any Indebtedness issued to the provisions similar former owners of a Person (or to those described under Section 4.14 and Section 4.10; provided that all Notes tendered the former owners of a division or line of business) in an acquisition transaction pursuant to which such Person became a Restricted Subsidiary (or such division or line of business was acquired by Holders of the Notes in connection with the related Change of Control Offer or Asset Sale Offer, as applicable, have been repurchased, redeemed or acquired for value in full; and
(xv) payment of dividends on Disqualified Interests of the Parent Company or a Restricted Subsidiary) and/or (iii) any Equity Interests of the Parent Company issued to the former owners of a Person (or to the former owners of a division or line of business) in an acquisition transaction pursuant to which such Person became a Restricted Subsidiary (or such division or line of business was acquired by the Parent Company or a Restricted Subsidiary), in the issuance case of which is permitted by this Indenturesubclause (iii), for consideration not to exceed the fair market value of such Equity Interests on the date of consummation of such acquisition.
(cf) 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) 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 Restricted Payment assets or securities that are required to be valued by this covenant and that have a fair market value in excess of $15 million shall be determined in good faith by an officer the Board of Directors whose resolution with respect thereto shall be delivered to the CompanyTrustee. In the event that For purposes of determining compliance with this Section 4.08, if a Restricted Payment meets the criteria of more than one of the exceptions described in clauses (i) through (xvx) above above, or is entitled to be made pursuant to the first paragraph of this covenant, the Company may, in its sole discretion, classify, and may later reclassify from time to time, such classify the Restricted Payment or in any portion thereof into or among any of such applicable provisionsmanner that complies with this Section 4.08.
Appears in 2 contracts
Restricted Payments. (a) The Company shall will not, and shall will not cause or 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, 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 holders (other than (A) dividends or distributions accrued or payable in Equity Interests (other than Disqualified InterestsStock) of the Company or (B) any of its Restricted Subsidiaries and other than dividends or distributions payable to the Company or a Restricted Subsidiary of the CompanySubsidiary);
(ii2) 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 the Company (other than any such Equity Interests owned by the Company or any Restricted Subsidiary entity of the Company);
(iii3) make any principal payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness of the Company or any Guarantor that is expressly contractually subordinated in right of payment to the Notes or to any Note Guarantee (other than excluding any intercompany Indebtedness permitted under clause (vi) between or among the Company and any of the definition of “Permitted Debt”) its Restricted Subsidiaries), except (ai) a payment of interest or principal at the Stated Maturity thereof or (bii) the purchase, repurchase or other acquisition of any such Indebtedness purchased in anticipation of satisfying a sinking fund obligation, principal installment or final scheduled maturity, in each case, case due within one year of the date of such purchase, repurchase or other acquisition; or
(iv4) make any Restricted Investment (all such payments and other actions set forth in these clauses (ia)(1) through (iva)(4) above being collectively referred to as “Restricted Payments”), unless, at the time of and after giving effect to any such Restricted Payment:
(Aa) no Default or Event of Default shall have has occurred and be is continuing or would occur as a consequence thereofof such Restricted Payment;
(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 Fixed Charge Coverage Ratio test set forth in Section 4.09(a)) hereof; and
(Cc) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after August 27since October 1, 2012 (excluding Restricted Payments permitted by clauses (i) (provided that at the time of declaring such dividend, such dividend was counted as a Restricted Payment) (iiSections 4.07(b)(2), (iii3), (iv4), (v), (vi), (vii), (viii), (ix), (x), (xi), (xii), (xiii), (xiv7) and (xv12) of Section 4.07(b)hereof), is less than the sum, without duplication, of:
(1i) 50% of the Consolidated Net Income of the Company for the period (taken as one accounting period) from April 2October 1, 2012 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
(2ii) 100% of the aggregate net proceeds, including cash proceeds and the fair market value Fair Market Value of any property or Capital Interests, marketable securities received by the Company since August 27October 1, 2012 as a contribution to its common equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified InterestsStock) or from the issue or sale of convertible or exchangeable Disqualified Interests Stock of the Company or convertible or exchangeable debt securities of the Company Company, in each case that have been converted into such or exchanged for Equity Interests of the Company (other than Equity Interests (or Disqualified Interests Stock or convertible debt securities) sold to a Subsidiary of the Company), together with the aggregate cash and Cash Equivalents received by the Company or any of its Restricted Subsidiaries at the time of such conversion or exchange plus the amount by which Indebtedness of the Company and its Restricted Subsidiaries is reduced upon the conversion or exchange subsequent to August 27, 2012 of any Indebtedness or Disqualified Interests which are convertible into or exchangeable for Qualified Capital Interests of the Company or any of its Restricted Subsidiaries, ; plus
(3iii) to the extent that any Restricted Investment that was made after October 1, 2012 is (a) sold, disposed of or otherwise cancelled, liquidated or repaid, 100% of the aggregate amount received in cash and the Fair Market Value of marketable securities received; or (b) made in an entity that subsequently becomes a Restricted Subsidiary, including 100% of the fair market value Fair Market Value of the Company’s Restricted Investment as of the date such entity becomes a Restricted Subsidiary; plus
(iv) to the extent that any property received Unrestricted Subsidiary of the Company designated as such after August 27October 1, 2012 by means of (A) the sale is redesignated as a Restricted Subsidiary, or other disposition (other than to is merged or consolidated into the Company or a Restricted Subsidiary) of Restricted Investments made by the Company , or its Restricted Subsidiaries and repurchases and redemptions of such Restricted Investments from the Company or its Restricted Subsidiaries and repayments of loans or advances which constitute Restricted Investments all of the Company or its Restricted Subsidiaries or (B) the sale (other than to the Company or a Restricted Subsidiary) assets of the Capital Interests of an Unrestricted Subsidiary or a distribution from an Unrestricted Subsidiary (other than in each case to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment) or a dividend from an Unrestricted Subsidiary, plus
(4) in the case of the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary or the merger or consolidation of an Unrestricted Subsidiary into the Company or a Restricted Subsidiary or the transfer of assets of an Unrestricted Subsidiary are transferred to the Company or a Restricted Subsidiary, in each case, after October 1, 2012, the fair market value Fair Market Value of the Company’s Restricted Investment in such Unrestricted Subsidiary as of the date of such redesignation, merger, consolidation or transfer of assets to the extent such investments reduced the restricted payments capacity under this clause (other than c) and were not previously repaid or otherwise reduced; plus
(v) 100% of any dividends or distributions received by the Company or a Restricted Subsidiary after October 1, 2012 from an Unrestricted Subsidiary to the extent that such dividends or distributions were not otherwise included in the Investment in such Unrestricted Subsidiary constituted a Permitted Investment), plus
(5) $141.0 million. The Board Consolidated Net Income of Directors 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 for such period (excluding, for the avoidance of doubt, repayments of, or interest payments in respect of, any Designated Proceeds Restricted Payment, any Ocean Subsidiaries in Permitted Investment or the Subsidiary so designated will be deemed to be Restricted Payments or Permitted Investments, in the Company’s discretion, at the time of such designation and will reduce the amount available for Restricted Payments or Permitted Investments, as applicable. 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 Payments or Permitted Investments would be permitted at such time and if such Restricted Subsidiary otherwise meets pursuant to clause (16) or (17) of the definition of an Unrestricted Subsidiarythereof).
(b) The preceding provisions of Section 4.07(a) shall hereof will not prohibit:
(i1) the payment of any dividend or other distribution or the consummation of any redemption within 60 days after the date of declaration of the dividend or call for giving of the redemption thereofnotice, as the case may be, if at said the date of declaration or call for notice, the dividend or redemption such payment would have complied with the provisions of this Indenture;
(ii2) the making of any Restricted Payment in exchange for, or out of or with the net cash proceeds of the substantially concurrent sale (other than to a Subsidiary of the Company) of, Equity Interests of the Company (other than any Disqualified InterestsStock) or from a 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 redemption, Restricted Payment will be excluded from Section 4.07(a)(4)(c)(ii) and will not be considered to be net cash proceeds from an Equity Offering for purposes of Section 3.07 hereof;
(3) the repurchase, retirementredemption, defeasance or other acquisition shall be excluded from Section 4.07(a)(C)(2);
(iii) the defeasance, redemption, repurchase, replacement, extension, renewal, refinancing or retirement for value of Indebtedness of the Company, or other acquisition of any Guarantor that is contractually subordinated Indebtedness to the Notes or Disqualified Interests in exchange for or to any Note Guarantee with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness;
(iv4) the declarationso long as no Default or Event of Default has occurred and is continuing, or payment of any dividend or other distribution 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 Restricted Subsidiary or any direct or indirect parent entity of the Company held by any current or former officer, director, employee, employee or consultant or agent of the Company or any of its Restricted Subsidiaries (or Heirs any direct or other permitted transferees thereof) upon deathindirect parent entity of the Company pursuant to any equity subscription agreement, disability, retirement, severance or termination of employment or service or in connection with a stock option plan or agreement, shareholders agreementrestricted stock grant, shareholders’ agreement or similar agreement, plan or arrangement, including amendments thereto; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may not exceed: (A) exceed $10.0 15.0 million in the aggregate in any calendar year, twelve-month period (increasing to $30.0 million following an underwritten public Equity Offering) with unused amounts being available carried over to be used in any later calendar yearsucceeding twelve-month periods subject to a maximum of $30.0 million (increasing to $60.0 million following an underwritten public Equity Offering); provided and provided, further, that such amount in any calendar year twelve-month period may be increased in by an amount not to exceed the net cash proceeds from the sale of Equity Interests (other than Disqualified Interests) of the Company to any officer, director, employee or agent of the Company or any a Restricted Subsidiary received by the Company or a Restricted Subsidiary during such twelve-month period, in each case to members of management, directors or consultants of the Company that occurs after the date Company, any of this Indenture, its Restricted Subsidiaries or any of its direct or indirect parent entities to the extent such net the cash proceeds from the sale of Equity Interests have not otherwise been applied to make the making of Restricted Payments pursuant to Section 4.07(a)(C)(2); plus (B4.07(a)(4)(c) the cash proceeds of key man life insurance policies received by the Company and its Restricted Subsidiaries after the date or Section 4.07(b)(2) of this Indenture that are used for paragraph or to an optional redemption of the repurchase, redemption or other acquisition or retirement for value owned by the individual (or such individual’s estate) that is the subject of such insuranceNotes pursuant to Section 3.07 hereof;
(vi5) the repurchase of Equity Interests deemed to occur upon the exercise of options, warrants or other convertible securities stock options to the extent such Equity Interests represent a portion of the exercise price of those stock options;
(6) so long as no Default or Event of Default has occurred and is continuing, warrants 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 preferred stock of any Restricted Subsidiary issued on or after the Issue Date in accordance with Section 4.09 hereof;
(7) payments of cash, dividends, distributions, advances or other convertible securities and Restricted Payments by the Company or any of its Restricted Subsidiaries to allow the payment of cash payments in lieu of the issuance of fractional shares in connection with upon (i) the exercise of options, warrants, options or other convertible securitieswarrants or (ii) the conversion or exchange of Capital Stock of any such Person;
(viii) the payment of any dividend (or, in the case of any partnership or limited liability company, any similar distribution) by a Restricted Subsidiary (other than a Xxxxx Act Compliant Entity) to the holders of its Equity Interests (other than the Company or any Restricted Subsidiary) on no more than a pro rata basis or (ii) the payment of any dividend (or, in the case of any partnership or limited liability company, any similar distribution) by a Xxxxx Act Compliant Entity to the holders of its Equity Interests (other than the Company or any Restricted Subsidiary) in an aggregate amount not to exceed in any calendar year $2.0 million per passenger cruise vessel owned by or contracted to be owned by such Xxxxx Act Compliant Entity;
(9) the declaration and payment of regular quarterly dividends on the Company’s common Equity Interests in accordance with past practice and not (or the payment of dividends to exceed $0.05 per share;
(viii) additional Restricted Payments not any parent entity to exceed $150.0 million after August 27fund a payment of dividends on such parent entity’s common Equity Interests), 2012;
(ix) following the repurchase first public offering of the Company’s common Equity Interests or the common Equity Interests of any parent entity after the Issue Date, in an amount not to exceed $50.0 million after August 276.00% per annum of the net cash proceeds received by or contributed to the Company in or from any such public offering, 2012other than public offerings with respect to the Company’s or such parent entity’s common Equity Interests registered on Form S-4 or Form S-8;
(x10) distributions so long as no Default or payments Event of Securitization Fees Default has occurred and purchases of Securitization Assets pursuant to a Securitization Repurchase Obligation in connection with a Qualified Securitization Financingis continuing, any Designated Proceeds Restricted Payment;
(xi11) any payments made in connection with the consummation declaration and payment of regularly scheduled or accrued dividends to holders of preferred stock of the transactions on substantially Company issued prior to the terms described Issue Date in the Offering Memoranduman aggregate amount not to exceed $150,000 in any calendar year;
(xii12) the payment of intercompany subordinated debta dividend to Parent in an aggregate amount not to exceed $175 million, plus any amounts necessary to pay unpaid interest, premiums, fees, expenses or other amounts in connection with any redemption; the incurrence proceeds of which was permitted under Section 4.09(b)(vi);shall be used by Parent to fund the redemption of all of its outstanding 8.625% / 9.375% Senior PIK Toggle Notes due 2018, which redemption occurred on August 21, 2014; or
(xiii13) so long as no Default or Event of Default has occurred and is continuing, other Restricted Payments in an aggregate amount taken together with all other Restricted Payments made pursuant to this clause (13) not to exceed (as of the date any such Restricted Payment is made) the purchase greater of fractional shares by the Company upon conversion (i) $50.0 million and (ii) 1.0% of any securities Total Tangible Assets of the Company into Capital Interests of for the Company;
(xiv) the repurchase, redemption or other acquisition or retirement for value of subordinated Indebtedness or Disqualified Interests pursuant to the provisions similar to those described under Section 4.14 and Section 4.10; provided that all Notes tendered by Holders of the Notes in connection with the related Change of Control Offer or Asset Sale Offer, as applicable, have been repurchased, redeemed or acquired for value in full; and
(xv) payment of dividends on Disqualified Interests of the Company or a Restricted Subsidiary, the issuance of which is permitted by this Indenturemost recently ended Calculation Period.
(c) 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 or, at the Company’s election, the date a commitment is made to make such 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 .
(d) For purposes of any non-cash Restricted Payment shall be determined by an officer of the Company. In determining compliance with this covenant, in the event that a proposed Restricted Payment (or a portion thereof) meets the criteria of more than one of the exceptions described in clauses (i1) through (xv13) above of Section 4.07(b) or is entitled to be made pursuant to the first paragraph of this covenant, covenant or one or more clauses in the definition of “Permitted Investments,” the Company may, in its sole discretion, classify, and may will be entitled to divide or classify or later divide or reclassify from time to time, (based on circumstances existing on the date of such reclassification) such Restricted Payment (or portion thereof) among such clauses (1) through (13), the definition of “Permitted Investments” and such first paragraph in a manner that complies with this covenant; provided that if any portion thereof into Investment pursuant to clause (13) above or among clause (17) of the definition of “Permitted Investments” is made in any Person that is not a Restricted Subsidiary and such Person subsequently becomes a Restricted Subsidiary or is subsequently designated a Restricted Subsidiary pursuant to Section 4.20 hereof, such Investment, if applicable, shall thereafter be deemed to have been made pursuant to clause (1) or (3) of the definition of “Permitted Investments” and not such applicable provisionsclause.
Appears in 2 contracts
Samples: Indenture (Viking Holdings LTD), Indenture (Viking Holdings LTD)
Restricted Payments. (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly:
(i) declare or pay (without duplication) 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 (A) dividends dividends, payments or distributions accrued or (x) payable in Equity Interests (other than Disqualified InterestsStock) of the Company or (By) 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 CompanyCompany or any of its Restricted Subsidiaries) any Equity Interests of the Company or any direct or indirect parent of the Company (Restricted Subsidiary thereof held by Persons other than any such Equity Interests owned by the Company or any of its Restricted Subsidiary of the Company)Subsidiaries;
(iii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness that is subordinated to the Notes or any Note Guarantee Guarantees (other than subordinated Indebtedness permitted under clause (vi) of held by the definition of “Permitted Debt”) Company or any Restricted Subsidiary thereof), except (ax) a payment of interest or principal at the Stated Maturity thereof or (by) the purchase, repurchase repurchase, defeasance, redemption, prepayment or other acquisition of any such Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case, case due within one year of the date of such purchase, repurchase repurchase, defeasance, redemption, prepayment or other acquisition; or
(iv) make any Restricted Investment (all such payments and other actions set forth in clauses (i) through (iv) 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;; 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 Incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.09(a); and
(C3) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after August 27, 2012 the Issue Date (excluding Restricted Payments permitted by clauses (i) (provided that at the time of declaring such dividend, such dividend was counted as a Restricted Payment) (ii), (iii), (iv), (v), (vi), (vii), (viii), (ix), (x), (xixi)(x), (xii), (xiiixiv), (xivxv) and (xvxvi) of clause (b) of this Section 4.07(b)4.07), is less than the sum, without duplication, of:
(1A) 50% of the Consolidated Net Income of the Company for the period (taken as one accounting period) from April 2the beginning of the fiscal quarter commencing October 1, 2012 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
(2B) 100% of the aggregate net proceeds, including the fair market value of any property or Capital Interests, Qualified Proceeds received by the Company since August 27, 2012 the Issue Date as a contribution to its common equity capital or from the issue or sale of Equity Interests (other than Disqualified Stock) of the Company (other than Disqualified Interests) or from the issue or sale of Equity Interests (other than Disqualified Interests Stock) of any direct or debt securities indirect parent entity of the Company the proceeds of which are contributed to the common equity capital of the Company) or from the Incurrence of Indebtedness of the Company or any Restricted Subsidiary that have has been converted into or exchanged for such Equity Interests (other than Equity Interests (sold to, or Disqualified Interests or convertible debt securities) sold to Indebtedness held by, a Subsidiary of the Company), together plus
(C) with the aggregate cash and Cash Equivalents received respect to Restricted Investments made by the Company or any of its Restricted Subsidiaries at the time of such conversion or exchange plus the amount by which Indebtedness of the Company and its Restricted Subsidiaries is reduced upon after the conversion or exchange subsequent Issue Date, an amount equal to August 27, 2012 the net reduction in such Restricted Investments in any Person resulting from payments of any interest on Indebtedness or Disqualified Interests which are convertible into or exchangeable for Qualified Capital Interests of held by the Company or any of its Restricted Subsidiaries, plus
(3) 100% from dividends, repayments of loans or advances, or other transfers of assets, in each case, to the Company or any Restricted Subsidiary of the amount receivedCompany, including from all cash, Cash Equivalents and the fair market value Fair Market Value of marketable securities, in each case, received by the Company or any property received after August 27, 2012 by means Restricted Subsidiary of (A) the Company as proceeds from the sale or other disposition of any such Restricted Investment (other than except, in each case, to the Company extent any such payment or a Restricted Subsidiary) proceeds are included in the calculation of Restricted Investments made by the Company or its Restricted Subsidiaries and repurchases and redemptions of such Restricted Investments Consolidated Net Income), from the Company or its Restricted release of any Guarantee (except to the extent any amounts are paid under such Guarantee), from redesignations of Unrestricted Subsidiaries and repayments of loans or advances which constitute Restricted Investments of the Company or its as Restricted Subsidiaries or (B) the sale (other than to the Company or a Restricted Subsidiary) of the Capital Interests of an from any Unrestricted Subsidiary or a distribution from an Unrestricted Subsidiary (other than in each case to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment) or a dividend from an Unrestricted Subsidiary, plus
(4) in the case of the redesignation of an Unrestricted Subsidiary as merging into a Restricted Subsidiary or (if the merger or consolidation of an Unrestricted Subsidiary into the Company or surviving entity is a Restricted Subsidiary or and such merger complies with the transfer terms of assets of an Unrestricted Subsidiary to the Company or a Restricted Subsidiary, the fair market value of the Investment in such Unrestricted Subsidiary (other than an Unrestricted Subsidiary to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investmentthis Indenture), plus
(5D) $141.0 million. The Board of Directors may designate in the event the Company or any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause makes any Investment in a Default. For purposes of making such determination, all outstanding Investments by the Company and its Restricted Subsidiaries in the Subsidiary so designated will be deemed to be Restricted Payments or Permitted Investments, in the Company’s discretion, at the time of such designation and will reduce the amount available for Restricted Payments or Permitted InvestmentsPerson that, as applicable. All a result of or in connection with such outstanding Investments will be deemed to constitute Investments in Investment, becomes a Restricted Subsidiary, an amount equal to the fair market value of Company’s or any Restricted Subsidiary’s existing Investment in such Investments at the time of such designation. Such designation will only be permitted if such Person that was previously treated as a Restricted Payments or Permitted Investments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted SubsidiaryPayment pursuant to this clause (3).
(b) The provisions of Section 4.07(a) shall not prohibit, so long as, in the case of clauses (vii), (x), (xi), (xii)(y), (xiii) and (xvii) below, no Default has occurred and is continuing or would be caused thereby:
(i) the payment of any dividend or other dividend, distribution or redemption payment within 60 days after the date of declaration of such dividend, distribution or call for the mailing of the relevant irrevocable redemption thereofnotice, if if, at said date of declaration or call for mailing, such dividend, distribution or redemption such payment payment, as the case may be, would have complied with the provisions of this Indenture;
(ii) the making payment of any dividend or distribution by a Restricted Payment Subsidiary of the Company to the holders of its Common Stock on a pro rata basis;
(iii) 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 the Company or of any direct or indirect parent entity of the Company in exchange for, or out of the net cash proceeds of a contribution to the substantially concurrent common equity of the Company or a sale (other than to a Subsidiary of the Company) occurring no earlier than 90 days prior to such redemption, repurchase, retirement, defeasance or other acquisition (other than to a Subsidiary of the Company) of, Equity Interests (other than Disqualified Stock) of the Company (other than or, to the extent contributed to the common equity capital of the Company, Equity Interests of any Disqualified Interests) direct or from a contribution indirect parent entity of capital to the Company; provided that the amount of any such net cash proceeds that are utilized for any such redemption, repurchase, retirement, defeasance or other acquisition shall will be excluded from clause (3)(B) of Section 4.07(a)(C)(24.07(a);
(iiiiv) the defeasance, redemption, repurchase, replacement, extension, renewal, refinancing or retirement or other acquisition of Indebtedness subordinated Indebtedness to the Notes or the Note Guarantees, or of Disqualified Interests in exchange for or Stock, with the net cash proceeds from an incurrence Incurrence of or in exchange for Permitted Refinancing Indebtedness;
(ivv) the declarationInvestments acquired as a capital contribution to, or payment in exchange for, or out of any dividend or the net cash proceeds of a sale occurring no earlier than 90 days prior to such acquisition (other distribution by than to a Subsidiary of the Company) of, Equity Interests (other than Disqualified Stock) of the Company (or Equity Interests of a direct or indirect parent entity of the Company if the net cash proceeds thereof are contributed to the holders Company); provided that the amount of its common Equity Interests on a pro rata basisany such net cash proceeds that are utilized for any such acquisition or exchange and the Fair Market Value of such Investments will be excluded from clause (3)(B) of Section 4.07(a);
(vvi) the repurchase of Capital Stock deemed to occur upon the exercise of options or warrants to the extent that such Capital Stock represents all or a portion of the exercise price thereof and the withholding of a portion of such Capital Stock to pay taxes associated therewith;
(vii) (x) the repurchase, redemption or other acquisition acquisition, cancellation or retirement for value of any Equity Interests of the Company or (y) the payment of dividends or the making of advances by the Company to any Subsidiary direct or indirect parent entity of the Company to enable such parent entity to repurchase, redeem or otherwise acquire or retire for value any Equity Interests of such parent entity, in the case of (x) or (y), held by any current or former employee, officer, director, employee, director or consultant or agent of Company or any of its Restricted Subsidiaries (or Heirs their authorized representatives or other permitted transferees thereof) upon death, disability, retirement, severance or termination of employment or service or in connection with a stock option plan or agreement, shareholders agreement, or similar agreement, plan or arrangement, including amendments thereto; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may not exceed: (A) $10.0 million in any calendar year, with unused amounts being available to be used in any later calendar year; provided that such amount in any calendar year may be increased in an amount not to exceed the net cash proceeds from the sale of Equity Interests (other than Disqualified Intereststransferees) of the Company to any officersuch parent entity, director, employee or agent of the Company or any Subsidiary of the Company or any such parent entity pursuant to the terms of any employee equity subscription agreement, employee benefit plan, stock option agreement or similar agreement entered into in the ordinary course of business or upon the death, disability, retirement or termination of employment of such Persons; provided that occurs after the date aggregate of this Indentureall amounts paid by the Company under clauses (x) and (y) in any calendar year shall not exceed the sum of (A) $5.0 million (with unused amounts in any calendar year being carried over to the next succeeding (but no other) calendar year (without giving effect to payments or advances made pursuant to clause (y)), (B) the aggregate net cash proceeds received by the Company during that calendar year from any issuance of Equity Interests (other than Disqualified Stock) of the Company and, to the extent such net cash proceeds have not otherwise been applied are contributed to make Restricted Payments pursuant the common equity capital of the Company, of such parent entity to Section 4.07(a)(C)(2)any current or former employee, officer, director or consultant (or their authorized representatives or permitted transferees) of such parent entity, the Company or any Subsidiary of the Company; plus (B) provided that the amount of any such net cash proceeds of key man life insurance policies received by the Company and its Restricted Subsidiaries after the date of this Indenture that are used for the to permit such repurchase, redemption or other acquisition or retirement for value owned pursuant to this clause (vii) shall be excluded from clause (3)(B) of Section 4.07(a), and (C) the cash proceeds of key-man life insurance policies received by the individual (Company or such individual’s estate) that is the subject of such insurance;
parent entity (vi) the repurchase of Equity Interests deemed to occur upon the exercise of options, warrants or other convertible securities to the extent such Equity Interests represent a contributed to the common equity capital of the Company) or any Restricted Subsidiary of the Company after the Issue Date; provided further that the Company may elect to apply all or any portion of the exercise price of those options, warrants or other convertible securities amounts contemplated by clauses (B) and cash payments (C) in lieu of the issuance of fractional shares in connection with the exercise of options, warrants, or other convertible securities;
(vii) the declaration and payment of regular quarterly dividends on the Company’s Equity Interests in accordance with past practice and not to exceed $0.05 per shareany fiscal year;
(viii) additional Restricted Payments the payment of cash in lieu of fractional Equity Interests in the aggregate amount not to exceed $150.0 million after August 27, 2012250,000;
(ix) the repurchase payment by the Company of the Company’s Equity Interests in an amount not to exceed $50.0 million after August 27, 2012Permitted Tax Distributions;
(x) distributions or payments of Securitization Fees and purchases of Securitization Assets pursuant to a Securitization Repurchase Obligation in connection with a Qualified Securitization Financing;
(xi) any payments made in connection with following the consummation of the transactions on substantially the terms described in the Offering Memorandum;
(xii) the payment of intercompany subordinated debt, the incurrence of which was permitted under Section 4.09(b)(vi);
(xiii) the purchase of fractional shares by the Company upon conversion of any securities of the Company into Capital Interests first public offering of the Company;
(xiv) ’s Common Stock or the repurchase, redemption Common Stock of any direct or other acquisition or retirement for value of subordinated Indebtedness or Disqualified Interests pursuant to the provisions similar to those described under Section 4.14 and Section 4.10; provided that all Notes tendered by Holders indirect parent entity of the Notes in connection with the related Change of Control Offer or Asset Sale Offer, as applicable, have been repurchased, redeemed or acquired for value in full; and
(xv) payment of dividends on Disqualified Interests of the Company or a Restricted Subsidiary, the issuance of which is permitted by this Indenture.
(c) 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 SubsidiaryCompany, as the case may be, after the Issue Date, the payment of dividends on the Company’s Common Stock (or the payment of dividends to such parent entity to fund the payment by such parent entity of dividends on such parent entity’s Common Stock) of up to 6% per annum of the net cash proceeds of such public offering received by, and in the case of a public offering of such parent entity, contributed to the common equity capital of, the Company; provided, however, that the aggregate amount of all such dividends shall not exceed the aggregate amount of net cash proceeds received by the Company (or so contributed to the Company) from such public offering;
(xi) (x) 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 in accordance with Section 4.09 hereof or (y) the declaration and payment of dividends to any direct or indirect parent entity of the Company for payment to holders of any class or series of Disqualified Stock of such direct or indirect parent entity issued on or after the Issue Date, the proceeds of which have been contributed to the Company; provided that the amount of dividends paid pursuant to this clause (xi)(y) shall not exceed the Restricted Payment. The fair market value aggregate amount of any non-cash Restricted Payment shall be determined by an officer actually contributed to the common equity capital of the Company. In Company from the event that a Restricted Payment meets sale of such Disqualified Stock;
(xii) any payment of dividends, other distributions or other amounts or the criteria making of more than one of the exceptions described in (i) through (xv) above loans or is entitled to be made pursuant to the first paragraph of this covenant, advances by the Company may, to any direct or indirect parent entity for the purposes set forth in its sole discretion, classify, clauses (x) and may later reclassify from time to time, such Restricted Payment or any portion thereof into or among any of such applicable provisions.(y) below:
Appears in 2 contracts
Samples: Indenture (Hexacomb CORP), Indenture (Hexacomb CORP)
Restricted Payments. (a) The Company Borrower 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 CompanyBorrower’s or any of its Restricted Subsidiaries’ Subsidiary’s Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company Borrower or any of its Restricted SubsidiariesSubsidiary) or to the any direct or indirect holders of the CompanyBorrower’s or any of its Restricted Subsidiaries’ Equity Interests in their capacity as such (other than (A) dividends or distributions accrued or (a) payable in Equity Interests (other than Disqualified InterestsStock) of the Company Borrower or (Bb) dividends or distributions to the Company Borrower or a any Wholly Owned Restricted Subsidiary of the CompanyBorrower);
; (ii) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the CompanyBorrower) any Equity Interests of the Company Borrower or any of its Restricted Subsidiaries or any direct or indirect parent of the Company Borrower (other than any such Equity Interests owned by the Company Borrower or any Restricted Subsidiary of the CompanyBorrower or Permitted Investments);
; (iii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness of the Borrower or any Restricted Subsidiary that is subordinated to the Notes Obligations or any Note Guarantee (other than Indebtedness permitted under clause (vi) guarantee of the definition of “Permitted Debt”) Obligations, except (a) a payment of interest or principal at Stated Maturity Maturity; or (b) the purchase, repurchase or other acquisition of any such Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case, due within one year of the date of such purchase, repurchase or other acquisition; or
(iv) make any Restricted Investment (all such payments and other actions set forth in clauses (i) through (iv) 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;; and
(Bb) the Company Borrower 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 Fixed Charge Coverage Debt to Cash Flow Ratio test set forth in the first paragraph of Section 4.09(a)7.2 hereof; and
(Cc) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company Borrower and its Restricted Subsidiaries after August 27, 2012 the date of this Agreement (excluding Restricted Payments permitted by clauses (i) (provided that at the time of declaring such dividend, such dividend was counted as a Restricted Payment) (ii), (iii), (iv), (v), (vi), (vii), (viii), (ix), (x), (xi), (xii), (xiii), (xiv) and (xvvii) of Section 4.07(b)the next succeeding paragraph), is less than the sum, without duplication, of
of (1i) 50% an amount equal to the Consolidated Cash Flow of the Consolidated Net Income of the Company Borrower for the period (taken as one accounting period) from April 2June 8, 2012 2001 to the end of the CompanyBorrower’s most recently ended full fiscal quarter for which internal financial statements are available at have been provided to the time Lenders pursuant to Section 6.1 (the “Basket Period”) less the product of such Restricted Payment 1.4 times the Consolidated Interest Expense of the Borrower for the Basket Period, plus (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit), plus
(2ii) 100% of the aggregate net proceeds, including the fair market value of any property or Capital Interests, cash proceeds received by the Company since August 27, 2012 Borrower as a contribution to its common equity capital or from the issue or sale since June 8, 2001 of Equity Interests of the Company Borrower (other than Disqualified InterestsStock) or from the issue or sale of Disqualified Interests Stock or debt securities of the Company Borrower that have been converted into such Equity Interests (other than Equity Interests (or Disqualified Interests Stock or convertible debt securities) sold to a Subsidiary of the CompanyBorrower and other than Disqualified Stock or convertible debt securities that have been converted into Disqualified Stock), together with plus (iii) to the aggregate extent that any Restricted Investment that was made after the date of this Agreement is sold for cash and Cash Equivalents received by or otherwise liquidated or repaid for cash, the Company or any of its Restricted Subsidiaries at the time of such conversion or exchange plus the amount by which Indebtedness of the Company and its Restricted Subsidiaries is reduced upon the conversion or exchange subsequent to August 27, 2012 of any Indebtedness or Disqualified Interests which are convertible into or exchangeable for Qualified Capital Interests of the Company or any of its Restricted Subsidiaries, plus
(3) 100% of the amount received, including the fair market value of any property received after August 27, 2012 by means lesser of (A) the sale or other disposition (other than cash return of capital with respect to the Company or a Restricted Subsidiary) of Restricted Investments made by the Company or its Restricted Subsidiaries and repurchases and redemptions of such Restricted Investments from Investment (less the Company or its Restricted Subsidiaries cost of disposition, if any) and repayments of loans or advances which constitute Restricted Investments of the Company or its Restricted Subsidiaries or (B) the sale initial amount of such Restricted Investment, plus (other than to iv) the Company or a Restricted Subsidiary) of aggregate cash dividends received by the Capital Interests of an Borrower from Unrestricted Subsidiary or a distribution from an Unrestricted Subsidiary Subsidiaries (other than in each case to the extent such dividends otherwise are not included in the Investment in such Borrower’s Consolidated Net Income) plus (v) to the extent that any Unrestricted Subsidiary constituted a Permitted Investment) or a dividend from an Unrestricted Subsidiary, plus
(4) in the case of the redesignation of an Unrestricted Subsidiary Borrower designated as such after the Closing Date is redesignated as a Restricted Subsidiary or after the merger or consolidation of an Unrestricted Subsidiary into the Company or a Restricted Subsidiary or the transfer of assets of an Unrestricted Subsidiary to the Company or a Restricted SubsidiaryClosing Date, the fair market value (as determined in good faith by the Board of Directors of the Borrower) of the Borrower’s Investment in such Unrestricted Subsidiary (other than an Unrestricted Subsidiary to as of the extent the Investment in date of such Unrestricted Subsidiary constituted a Permitted Investment), plus
(5) $141.0 millionredesignation. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would foregoing provisions will not cause a Default. For purposes of making such determination, all outstanding Investments by the Company and its Restricted Subsidiaries in the Subsidiary so designated will be deemed to be Restricted Payments or Permitted Investments, in the Company’s discretion, at the time of such designation and will reduce the amount available for Restricted Payments or Permitted Investments, as applicable. 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 Payments or Permitted Investments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary.
(b) Section 4.07(a) shall not prohibit:
prohibit (i) the payment of any dividend or other distribution or the consummation of an irrevocable redemption within 60 days after the date of declaration thereof or call for redemption thereofthe giving of the notice of redemption, as the case may be, if at said the date of declaration or call for notice of redemption such payment would have complied with the provisions of this Indenture;
Agreement; (ii) the making redemption, repurchase, retirement, defeasance or other acquisition or retirement for value of any Restricted Payment Equity Interests of Borrower or subordinated Indebtedness of the Borrower or any Guarantor in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Subsidiary of the CompanyBorrower) of, other Equity Interests of the Company Borrower (other than any Disqualified Interests) or from a contribution of capital to the CompanyStock); 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 Section 4.07(a)(C)(2);
clause (c)(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; (iii) the defeasance, redemption, repurchase, replacement, extension, renewal, refinancing or retirement repurchase or other acquisition or retirement for value of subordinated Indebtedness or Disqualified Interests in exchange for or with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness;
; provided that no Default or Event of Default shall have occurred and be continuing immediately after such transaction; (iv) the declaration, or payment of any dividend or other distribution by a Restricted Subsidiary of the Company Borrower 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 Borrower or any Restricted Subsidiary of the Company Borrower held by any current or former officer, director, employee, consultant director or agent employee of Company the Borrower’s or any of its Restricted Subsidiaries (or Heirs Subsidiaries’ pursuant to any management equity subscription agreement, stock option agreement or other permitted transferees thereof) upon death, disability, retirement, severance or termination of employment or service or in connection with a stock option plan or agreement, shareholders agreement, or similar agreement, plan or arrangement, including amendments thereto; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may shall not exceed: exceed $5.0 million (excluding for purposes of calculating such amounts during any period, loans incurred to finance the purchase of such Equity Interests that are repaid contemporaneously) in any twelve-month period and no Default or Event of Default shall have occurred and be continuing immediately after such transaction; (vi) repurchases of stock deemed to have occurred by virtue of the exercise of stock options; (vii) so long as no Default or Event of Default shall have occurred and be continuing, (A) on or prior to October 15, 2008, scheduled cash dividend payments on the Series B Preferred Stock (provided that, the Borrower’s Debt to Cash Flow Ratio at the time of any such payment, after giving proforma effect thereto as if such payment had been made at the beginning of the most recently ended four full fiscal quarter period of the Borrower for which internal financial statements are available, would have been no greater than 6.0 to 1.0) and (B) commencing after October 15, 2008, scheduled cash dividend payments on the Series B Preferred Stock; (viii) so long as no Default or Event of Default shall have occurred and be continuing, (A) repurchases of shares of Series B Preferred Stock and (B) on or prior to October 15, 2008, scheduled cash dividend payments on the Series B Preferred Stock, in an aggregate amount not to exceed $25.0 million in the case of all such repurchases and cash dividends pursuant to the foregoing clauses (A) and (B) of this clause (viii) and (ix) other Restricted Payments in an aggregate amount not to exceed $10.0 million in any calendar year, with unused amounts being available to twelve-month period so long as no Default or Event of Default shall have occurred and be used in any later calendar year; provided that such amount in any calendar year may be increased in an amount not to exceed the net cash proceeds from the sale of Equity Interests (other than Disqualified Interests) of the Company to any officer, director, employee or agent of the Company or any Subsidiary of the Company that occurs after the date of this Indenture, to the extent such net cash proceeds have not otherwise been applied to make Restricted Payments pursuant to Section 4.07(a)(C)(2); plus (B) the cash proceeds of key man life insurance policies received by the Company and its Restricted Subsidiaries after the date of this Indenture that are used for the repurchase, redemption or other acquisition or retirement for value owned by the individual (or such individual’s estate) that is the subject of such insurance;
(vi) the repurchase of Equity Interests deemed to occur upon the exercise of options, warrants or other convertible securities to the extent such Equity Interests represent a portion of the exercise price of those options, warrants or other convertible securities and cash payments in lieu of the issuance of fractional shares in connection with the exercise of options, warrants, or other convertible securities;
(vii) the declaration and payment of regular quarterly dividends on the Company’s Equity Interests in accordance with past practice and not to exceed $0.05 per share;
(viii) additional Restricted Payments not to exceed $150.0 million after August 27, 2012;
(ix) the repurchase of the Company’s Equity Interests in an amount not to exceed $50.0 million after August 27, 2012;
(x) distributions or payments of Securitization Fees and purchases of Securitization Assets pursuant to a Securitization Repurchase Obligation in connection with a Qualified Securitization Financing;
(xi) any payments made in connection with the consummation of the transactions on substantially the terms described in the Offering Memorandum;
(xii) the payment of intercompany subordinated debt, the incurrence of which was permitted under Section 4.09(b)(vi);
(xiii) the purchase of fractional shares by the Company upon conversion of any securities of the Company into Capital Interests of the Company;
(xiv) the repurchase, redemption or other acquisition or retirement for value of subordinated Indebtedness or Disqualified Interests pursuant to the provisions similar to those described under Section 4.14 and Section 4.10; provided that all Notes tendered by Holders of the Notes in connection with the related Change of Control Offer or Asset Sale Offer, as applicable, have been repurchased, redeemed or acquired for value in full; and
(xv) payment of dividends on Disqualified Interests of the Company or a Restricted Subsidiary, the issuance of which is permitted by this Indenture.
(c) continuing. 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 Borrower 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 good faith by the Board of Directors whose resolution with respect thereto shall be delivered to the Administrative Agent. Not later than the date of making any Restricted Payment, the Borrower shall deliver to the Administrative Agent an officer of the Company. In the event Officers’ Certificate stating that a such Restricted Payment meets is permitted and setting forth the criteria basis upon which any calculation required by this Section 7.4 were computed. The Board of more than one of the exceptions described in (i) through (xv) above or is entitled Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default. For purposes of making such determination, the aggregate fair market value of all outstanding Investments by the Borrower and its Restricted Subsidiaries in the Subsidiary so designated will be deemed to be an Investment made pursuant to at the time of such designation and will reduce the amount available for Restricted Payments under the first paragraph of this covenantSection 7.4 or under one or more clauses of the definition of Permitted Investments, as determined by the Borrower. Such designation will only be permitted if such Investment would be permitted at such time and if such Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. Any such designation by the Board of Directors shall be evidenced to the Administrative Agent by filing with the Administrative Agent a certified copy of the resolutions of the Board of Directors giving effect to such designation and an Officers’ Certificate certifying that such designation complied with the foregoing conditions. If, at any time, any Unrestricted Subsidiary would fail to meet the definition of an Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Agreement and any Indebtedness of such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary of the Borrower as of such date (and, if such Indebtedness is not permitted to be incurred as of such date under Section 7.2 hereof, the Company may, Borrower shall be in its sole discretion, classify, and default). The Board of Directors of the Borrower may later reclassify from at any time designate any Unrestricted Subsidiary to time, be a Restricted Subsidiary; provided that such designation shall be deemed to be an incurrence of Indebtedness by a Restricted Payment or Subsidiary of the Borrower of any portion thereof into or among any outstanding Indebtedness of such applicable provisionsUnrestricted Subsidiary and such designation shall only be permitted if (i) such Indebtedness is permitted under Section 7.2 hereof, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period and (ii) no Default or Event of Default would be in existence immediately following such designation.
Appears in 2 contracts
Samples: Second Lien Term Loan Agreement (Spanish Broadcasting System Inc), First Lien Credit Agreement (Spanish Broadcasting System Inc)
Restricted Payments. (a) 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 its 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 (A) dividends or distributions accrued or payable (x) solely in Equity Interests (other than Disqualified InterestsStock) of the Company or (By) dividends or distributions in the case of the Company and its Restricted Subsidiaries, to the Company or a Restricted Subsidiary of the Companythereof);
(iib) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the CompanyCompany or any of its Restricted Subsidiaries) any Equity Interests of the Company or any direct or indirect parent Parent of the Company or any Restricted Subsidiary of the Company (other than than, in the case of the Company and its Restricted Subsidiaries, any such Equity Interests owned by the Company or any of its Restricted Subsidiary of the CompanySubsidiaries);; or
(iiic) 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 (other than intercompany Indebtedness among the Company and its Restricted Subsidiaries that is permitted to be incurred under this Supplemental Indenture) that is subordinated to the Notes or any Note Guarantee (other than Indebtedness permitted under clause (vi) of the definition of “Permitted Debt”) Notes, except (a) a payment of interest or principal at the Stated Maturity or (b) the purchase, repurchase or other acquisition of any such Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case, due within one year of the date of such purchase, repurchase or other acquisition; or
(iv) make any Restricted Investment thereof (all such payments and other actions set forth in clauses (ia) through (ivc) 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 under this Indenture shall have occurred and be continuing or would occur as a consequence thereof;
(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 Fixed Charge Coverage Leverage Ratio test set forth in the first paragraph of Section 4.09(a)4.10; and
(C3) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries from and after August 27April 1, 2012 2010 (excluding Restricted Payments permitted by clauses (i2) through (provided that 17) of the next succeeding paragraph and made on or after April 1, 2010), shall not exceed, at the time date of declaring such dividenddetermination, such dividend was counted as a Restricted Payment) (ii), (iii), (iv), (v), (vi), (vii), (viii), (ix), (x), (xi), (xii), (xiii), (xiv) and (xv) of Section 4.07(b)), is less than the sum, without duplication, sum of:
(1a) 50an amount equal to 100% of the Consolidated Net Income EBITDA of the Company for the period (taken as one accounting period) from beginning on the first day of the fiscal quarter commencing April 21, 2012 2010 to the end of the Company’s most recently ended full fiscal quarter for which internal financial statements are available at available, taken as a single accounting period, less the time product of such Restricted Payment (or, if such 1.3 times the Consolidated Net Income Interest Expense of the Company for such period is a deficitperiod, less plus
(b) an amount equal to 100% of Capital Stock Sale Proceeds (reduced for purpose of this clause (b) by (A) any amount of such deficitCapital Stock Sale Proceeds (i) used in connection with an Investment made on or after the Issue Date pursuant to clause (5) of the definition of “Permitted Investments,” (ii) applied to make a Restricted Payment pursuant to clause (2) or sub-clause (y)(2) of clause (9) or clause (14) below, or (iii) relied upon for purposes of incurring Contribution Indebtedness and (B) the amount of Restricted Payments made pursuant to sub-clause (A)(i), (B) or (C) of clause (8) and sub-clause (y)(1) of clause (9) below, in each case, by an amount not to exceed the amount of Capital Stock Sale Proceeds from any Charter Subsidiary Refinancing Indebtedness or Charter Parent Refinancing Indebtedness), plus
(2) 100% of the aggregate net proceeds, including the fair market value of any property or Capital Interests, received by the Company since August 27, 2012 as a contribution to its equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified Interests) or from the issue or sale of Disqualified Interests or debt securities of the Company that have been converted into such Equity Interests (other than Equity Interests (or Disqualified Interests or convertible debt securities) sold to a Subsidiary of the Company), together with the aggregate cash and Cash Equivalents received by the Company or any of its Restricted Subsidiaries at the time of such conversion or exchange plus the amount by which Indebtedness of the Company and its Restricted Subsidiaries is reduced upon the conversion or exchange subsequent to August 27, 2012 of any Indebtedness or Disqualified Interests which are convertible into or exchangeable for Qualified Capital Interests of the Company or any of its Restricted Subsidiaries, plus
(3) 100% of the amount received, including the fair market value of any property received after August 27, 2012 by means of (A) the sale or other disposition (other than to the Company or a Restricted Subsidiary) of Restricted Investments made by the Company or its Restricted Subsidiaries and repurchases and redemptions of such Restricted Investments from the Company or its Restricted Subsidiaries and repayments of loans or advances which constitute Restricted Investments of the Company or its Restricted Subsidiaries or (B) the sale (other than to the Company or a Restricted Subsidiary) of the Capital Interests of an Unrestricted Subsidiary or a distribution from an Unrestricted Subsidiary (other than in each case to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment) or a dividend from an Unrestricted Subsidiary, plus
(4) in the case of the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary or the merger or consolidation of an Unrestricted Subsidiary into the Company or a Restricted Subsidiary or the transfer of assets of an Unrestricted Subsidiary to the Company or a Restricted Subsidiary, the fair market value of the Investment in such Unrestricted Subsidiary (other than an Unrestricted Subsidiary to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment), plus
(5c) $141.0 million2.0 billion. The Board of Directors 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 in the Subsidiary so designated will be deemed to be Restricted Payments or Permitted Investments, in the Company’s discretion, at the time of such designation and will reduce the amount available for Restricted Payments or Permitted Investments, as applicable. 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 Payments or Permitted Investments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary.
(b) Section 4.07(a) preceding provisions shall not prohibit:
(i1) the payment of any dividend or other distribution or redemption within 60 days after the date of declaration or call for redemption thereof, if at said the date of declaration or call for redemption such payment would have complied with the provisions of this Supplemental Indenture;
(ii2) the making redemption, repurchase, retirement, defeasance or other acquisition of any Restricted Payment subordinated Indebtedness of the Company in exchange for, or out of the net cash proceeds of of, the substantially concurrent sale (other than to a Subsidiary of the Company) of, Equity Interests of the Company (other than any Disqualified Interests) or from a contribution of capital to the Company; 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 Section 4.07(a)(C)(2Stock);
(iii3) the defeasance, redemption, repurchase, replacement, extension, renewal, refinancing or retirement repurchase or other acquisition of subordinated Indebtedness of the Company or Disqualified Interests in exchange for or any of its Restricted Subsidiaries with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness;
(iv4) the declaration, or payment of any dividend or other distribution distribution, which need not be pro rata, to the extent necessary to permit direct or indirect Beneficial Owners of shares of Capital Stock of the Company to pay federal, state or local income tax liabilities that would arise solely from income of the Company or any of its Restricted Subsidiaries, as the case may be, for the relevant taxable period being attributable to them;
(5) the payment of any dividend by a Restricted Subsidiary of the Company to the holders of its common Equity Interests on a pro rata basis;
(v6) the repurchase, redemption or other acquisition or retirement for value value, or the payment of any dividend or distribution to the extent necessary to permit the repurchase, redemption or other acquisition or retirement for value, of any Equity Interests of the Company or any Subsidiary a Parent of the Company held by any current member of the Company’s or former officer, director, employee, consultant such Parent’s management pursuant to any management equity subscription agreement or agent stock option agreement entered into in accordance with the policies of the Company or any of its Restricted Subsidiaries (or Heirs or other permitted transferees thereof) upon death, disability, retirement, severance or termination of employment or service or in connection with a stock option plan or agreement, shareholders agreement, or similar agreement, plan or arrangement, including amendments theretoParent; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may shall not exceed: exceed $50.0 million in any fiscal year of the Issuers;
(7) payment of fees in connection with any acquisition, merger or similar transaction in an amount that does not exceed an amount equal to 1.25% of the transaction value of such acquisition, merger or similar transaction;
(8) (A) $10.0 million in additional Restricted Payments directly or indirectly to any calendar yearParent (i) for the purpose of enabling any Parent to pay interest when due on Indebtedness under any Charter Parent Refinancing Indebtedness or (ii) so long as no Default has occurred and is continuing and the Company would have been permitted, with unused amounts being available to be used in any later calendar year; provided that at the time of such amount in any calendar year may be increased in an amount not to exceed Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the net cash proceeds from the sale of Equity Interests (other than Disqualified Interests) beginning of the Company applicable quarter period, to incur at least $1.00 of additional Indebtedness pursuant to the Leverage Ratio test set forth in the first paragraph of Section 4.10, consisting of dividends or distributions to the extent required to enable any officerParent to defease, directorredeem, employee repurchase, prepay, repay, discharge or agent otherwise acquire or retire for value Indebtedness under any Charter Parent Refinancing Indebtedness (including any expenses and fees incurred by any Parent in connection therewith); (B) so long as no Default has occurred and is continuing, Restricted Payments used to defease, redeem, repurchase, prepay, repay, discharge or otherwise acquire or retire for value Indebtedness under any Charter Parent Refinancing Indebtedness or consisting of purchases, redemptions or other acquisitions by the Company or its Restricted Subsidiaries of Indebtedness under any Subsidiary of the Company that occurs after the date of this Indenture, to the extent such net cash proceeds have not otherwise been applied to make Restricted Payments pursuant to Section 4.07(a)(C)(2); plus Charter Parent Refinancing Indebtedness (B) the cash proceeds of key man life insurance policies received including any expenses and fees incurred by the Company and its Restricted Subsidiaries in connection therewith) and the distribution, loan or investment to any Parent of Indebtedness so purchased, redeemed or acquired; or (C) Restricted Payments for the purpose of enabling any Parent to (i) pay interest when due on Indebtedness under any Charter Subsidiary Refinancing Indebtedness or (ii) to defease, redeem, repurchase, prepay, repay, discharge or otherwise acquire or retire for value Indebtedness under any Charter Subsidiary Refinancing Indebtedness (including any expenses and fees incurred by the Company and its Restricted Subsidiaries in connection therewith);
(9) Restricted Payments directly or indirectly to any Parent regardless of whether a Default exists (other than an Event of Default under paragraph (1), (2), (7) or (8) of Section 6.01), for the purpose of enabling such Person (A) to pay interest on and (B) so long as 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 date beginning of this Indenture the applicable quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Leverage Ratio test set forth in the first paragraph of Section 4.10 to defease, redeem, repurchase, prepay, repay, discharge or otherwise acquire or retire, in each case, Indebtedness of such Parent (x) which is not held by another Parent and (y) to the extent that the net cash proceeds of such Indebtedness are or were used for the repurchase(1) payment of interest or principal (or premium) on any Indebtedness of a Parent (including (A) by way of a tender, redemption or other acquisition or retirement for value owned by the individual (or such individual’s estate) that is the subject prepayment of such insuranceIndebtedness and (B) amounts set aside to prefund any such payment), (2) direct or indirect (including by way of a contribution of property and/or assets purchased with such net cash proceeds) Investment in the Company or any of its Restricted Subsidiaries or (3) payment of amounts that would be permitted to be paid by way of a Restricted Payment under clause (10) immediately below (including the expenses of any exchange transaction);
(vi10) the repurchase Restricted Payments directly or indirectly to any Parent of (A) attorneys’ fees, investment banking fees, accountants’ fees, underwriting discounts and commissions and other customary fees and expenses (including any commitment and other fees payable in connection with Credit Facilities) actually incurred in connection with any issuance, sale or incurrence by such Parent of Equity Interests deemed or Indebtedness, or any exchange of securities or tender for outstanding debt securities, or (B) the costs and expenses of any offer to occur upon the exercise of options, warrants or other convertible exchange privately placed securities to the extent such Equity Interests represent a portion in respect of the exercise price of those options, warrants foregoing for publicly registered securities or other convertible securities and cash payments in lieu of the issuance of fractional shares in connection with the exercise of options, warrants, or other convertible securitiesany similar concept having a comparable purpose;
(vii11) the redemption, repurchase, retirement or other acquisition of any Equity Interests of the Company or Indebtedness of the Issuers or any Equity Interests of any direct or indirect parent of the Company, in exchange for, or out of the proceeds of the substantially concurrent sale (other than to an Issuer or a Restricted Subsidiary) of, Equity Interests of the Company or any direct or indirect parent of the Company (in each case, other than any Disqualified Stock);
(12) the declaration and payment of regular quarterly dividends on to holders of any class or series of Disqualified Stock of the Company’s Equity Interests Issuers or any Restricted Subsidiary issued in accordance with past practice Section 4.10;
(13) so long as no Default has occurred and is continuing, other Restricted Payments in an aggregate amount outstanding taken together with all other Restricted Payments made pursuant to this clause (13) not to exceed $0.05 per share100.0 million outstanding at any one time;
(viii14) additional Restricted Payments not to exceed $150.0 million after August 27, 2012;
(ix) the repurchase pay all or a portion of the Company’s consideration payable for any Investment that would have been permitted to be made by the Issuers under this Indenture including, without limitation, the true up payments pursuant to the Bright House Acquisition Agreement; provided that the assets or Equity Interests acquired in an amount not such Investment (to exceed $50.0 million after August 27, 2012;
(x) distributions or payments the extent of Securitization Fees and purchases of Securitization Assets pursuant to a Securitization Repurchase Obligation in connection with a Qualified Securitization Financing;
(xi) any payments made in connection with the consummation of the transactions on substantially the terms described in the Offering Memorandum;
(xii) the payment of intercompany subordinated debt, the incurrence of which was permitted under Section 4.09(b)(vi);
(xiii) the purchase of fractional shares amounts distributed by the Company upon conversion of any securities of Issuers to make such Investment) are promptly contributed to the Company into Capital Interests capital of the Company;
(xiv15) the repurchaseso long as no Default or Event of Default has occurred and is continuing or would result therefrom, redemption or other acquisition or retirement for value of subordinated Indebtedness or Disqualified Interests pursuant to the provisions similar to those described under Section 4.14 and Section 4.10any Restricted Payments; provided that all Notes tendered by Holders of the Notes Leverage Ratio, after giving pro forma effect to such Restricted Payment, is less than or equal to 3.50 to 1.00;
(16) any distributions to any Parent to permit such Parent to pay (i) attorneys’ fees, investment banking fees, accountants’ fees, underwriting discounts and commissions and other customary fees and expenses (including any commitment and other fees payable in connection with credit facilities) actually incurred in connection with any issuance, sale or incurrence by such Parent of Equity Interests or Indebtedness, any exchange of securities or a tender for outstanding debt securities or any actual or proposed Investment, (ii) the related Change costs and expenses of Control Offer any offer to exchange privately placed securities in respect of the foregoing for publicly registered securities or Asset Sale Offerany similar concept having a comparable purpose or (iii) other administrative expenses (including legal, as applicableaccounting, have been repurchasedother professional fees and costs, redeemed or acquired for value printing and other such fees and expenses) incurred in fullthe ordinary course of business, in an aggregate amount in the case of this clause (iii) not to exceed $5.0 million in any fiscal year; and
(xv17) payment Restricted Payments in an aggregate amount not to exceed an amount equal to the sum of dividends on Disqualified Interests Total Leverage Excess Proceeds and Declined Excess Proceeds that has not been used to make any Investments pursuant to clause (21) of the Company or a Restricted Subsidiarydefinition of “Permitted Investments.” For purposes of determining compliance with this Section 4.07, the issuance of which is permitted by this Indenture.
(c) 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 Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall be determined by an officer of the Company. In in the event that a Restricted Payment meets Payment, when made, met the criteria of more than one of the exceptions categories described in clauses (i1) through (xv17) above above, or is entitled to be made was permitted pursuant to the first paragraph of this covenantSection 4.07, the Company may, in its sole discretion, classify, and may later reclassify from time Issuers will be entitled to time, classify such Restricted Payment (or portion thereof) on the date of its payment or later reclassify such Restricted Payment (or portion thereof) in any portion thereof into or among any of such applicable provisionsmanner that complies with this Section 4.07.
Appears in 2 contracts
Samples: Eighth Supplemental Indenture (Cco Holdings LLC), Seventh Supplemental Indenture (Cco Holdings LLC)
Restricted Payments. (a) 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 of the Company or any of its Restricted Subsidiaries’ Equity Interests Subsidiaries (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 of the Company or any of its Restricted Subsidiaries’ Equity Interests Subsidiaries in their capacity as such (other than (A) dividends or distributions accrued or payable in Equity Interests (other than Disqualified InterestsStock) of the Company or (B) Company, dividends or distributions payable to the Company or any Restricted Subsidiary of the Company (other than a Receivables Subsidiary) or dividends or distributions made by a Restricted Subsidiary of the CompanyCompany (other than a Receivables Subsidiary) to all holders of its common stock on a pro rata basis);
; (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 Restricted Subsidiary of the Company or any direct or indirect parent of the Company Company, (other than any such Equity Interests owned by the Company or any Restricted Subsidiary of the CompanyCompany (other than a Receivables Subsidiary);
); (iii) make any payment on or with in respect toof, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness that is pari passu with or subordinated to the Notes or any Note Guarantee (other than Indebtedness permitted under clause (vi) of the definition of “Permitted Debt”) Notes, except (a) a payment of interest or principal at Stated Maturity or (b) the purchase, repurchase or other acquisition of any such Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case, due within one year of the date of such purchase, repurchase or other acquisition; or
(iv) make any Restricted Investment (all such payments and other actions set forth in clauses (i) through (iv) 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;; and
(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-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(a)4.09 hereof; and
(Cc) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after August 27, 2012 the date of the Indenture (excluding Restricted Payments permitted by clauses (i) (provided that at the time of declaring such dividend, such dividend was counted as a Restricted Payment) (ii), (iii), (iv), (v), (vi), (vii), (viii), (ix), (x), (xi), (xii), (xiii), (xiv) and (xvy) of Section 4.07(b)the next succeeding paragraph), is less than the sum, without duplication, of
sum of (1i) 50% of the Consolidated Net Income of the Company for the period (taken as one accounting period) from April 2, 2012 commencing on the effective date of the Merger 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 (2ii) 100% of the aggregate net proceeds, including the fair market value of any property or Capital Interests, cash proceeds received by the Company since August 27, 2012 as a contribution to its equity capital or from the issue or sale subsequent to the date of the Indenture of Equity Interests of the Company (other than Disqualified Interests) or from the issue or sale of Disqualified Interests or debt securities of the Company that have been converted into such Equity Interests (other than Equity Interests (or Disqualified Interests or convertible debt securities) sold to a Subsidiary of the CompanyCompany and other than Disqualified Stock or debt securities that have been converted into Disqualified Stock), together with plus (iii) to the aggregate cash and Cash Equivalents received by extent that any Restricted Investment that was made after the Company or any of its Restricted Subsidiaries at the time of such conversion or exchange plus the amount by which Indebtedness date of the Company and its Restricted Subsidiaries Indenture is reduced upon sold for cash or otherwise liquidated or paid for cash, the conversion or exchange subsequent to August 27, 2012 of any Indebtedness or Disqualified Interests which are convertible into or exchangeable for Qualified Capital Interests of the Company or any of its Restricted Subsidiaries, plus
(3) 100% of the amount received, including the fair market value of any property received after August 27, 2012 by means lesser of (A) the sale or other disposition (other than cash return of capital with respect to the Company or a Restricted Subsidiary) of Restricted Investments made by the Company or its Restricted Subsidiaries and repurchases and redemptions of such Restricted Investments from Investment (less the Company or its Restricted Subsidiaries cost of disposition, if any) and repayments of loans or advances which constitute Restricted Investments of the Company or its Restricted Subsidiaries or (B) the sale (other than to the Company or a Restricted Subsidiary) of the Capital Interests of an Unrestricted Subsidiary or a distribution from an Unrestricted Subsidiary (other than in each case to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment) or a dividend from an Unrestricted Subsidiary, plus
(4) in the case of the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary or the merger or consolidation of an Unrestricted Subsidiary into the Company or a Restricted Subsidiary or the transfer of assets of an Unrestricted Subsidiary to the Company or a Restricted Subsidiary, the fair market value of the Investment in such Unrestricted Subsidiary (other than an Unrestricted Subsidiary to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment), plus
(5) $141.0 million. The Board of Directors 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 in the Subsidiary so designated will be deemed to be Restricted Payments or Permitted Investments, in the Company’s discretion, at the time initial amount of such designation and will reduce the amount available for Restricted Payments or Permitted InvestmentsInvestment, as applicable. 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 Payments or Permitted Investments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary.
(b) Section 4.07(a) shall not prohibit:
(i) the payment of any dividend or other distribution or redemption within 60 days after the date of declaration or call for redemption thereof, if at said date of declaration or call for redemption such payment would have complied with the provisions of this Indenture;
(ii) the making of any Restricted Payment in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Subsidiary of the Company) of, Equity Interests of the Company (other than any Disqualified Interests) or from a contribution of capital to the Company; 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 Section 4.07(a)(C)(2);
(iii) the defeasance, redemption, repurchase, replacement, extension, renewal, refinancing or retirement or other acquisition of subordinated Indebtedness or Disqualified Interests in exchange for or with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness;
plus (iv) the declaration, or payment of any dividend or other distribution 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 current or former officer, director, employee, consultant or agent of Company or any of its Restricted Subsidiaries (or Heirs or other permitted transferees thereof) upon death, disability, retirement, severance or termination of employment or service or in connection with a stock option plan or agreement, shareholders agreement, or similar agreement, plan or arrangement, including amendments thereto; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may not exceed: (A) $10.0 million in any calendar year, with unused amounts being available to be used in any later calendar year; provided that such amount in any calendar year may be increased in an amount not to exceed the net cash proceeds from the sale of Equity Interests (other than Disqualified Interests) of the Company to any officer, director, employee or agent of the Company or any Subsidiary of the Company that occurs after the date of this Indenture, to the extent such net cash proceeds have not otherwise been applied to make Restricted Payments pursuant to Section 4.07(a)(C)(2); plus (B) the cash proceeds of key man life insurance policies received by the Company and its Restricted Subsidiaries after the date of this Indenture that are used for the repurchase, redemption or other acquisition or retirement for value owned by the individual (or such individual’s estate) that is the subject of such insurance;
(vi) the repurchase of Equity Interests deemed to occur upon the exercise of options, warrants or other convertible securities to the extent such Equity Interests represent a portion of the exercise price of those options, warrants or other convertible securities and cash payments in lieu of the issuance of fractional shares in connection with the exercise of options, warrants, or other convertible securities;
(vii) the declaration and payment of regular quarterly dividends on the Company’s Equity Interests in accordance with past practice and not to exceed $0.05 per share;
(viii) additional Restricted Payments not to exceed $150.0 million after August 27, 2012;
(ix) the repurchase of the Company’s Equity Interests in an amount not to exceed $50.0 million after August 27, 2012;
(x) distributions or payments of Securitization Fees and purchases of Securitization Assets pursuant to a Securitization Repurchase Obligation in connection with a Qualified Securitization Financing;
(xi) any payments made in connection with the consummation of the transactions on substantially the terms described in the Offering Memorandum;
(xii) the payment of intercompany subordinated debt, the incurrence of which was permitted under Section 4.09(b)(vi);
(xiii) the purchase of fractional shares by the Company upon conversion of any securities of the Company into Capital Interests of the Company;
(xiv) the repurchase, redemption or other acquisition or retirement for value of subordinated Indebtedness or Disqualified Interests pursuant to the provisions similar to those described under Section 4.14 and Section 4.10; provided that all Notes tendered by Holders of the Notes in connection with the related Change of Control Offer or Asset Sale Offer, as applicable, have been repurchased, redeemed or acquired for value in full; and
(xv) payment of dividends on Disqualified Interests of the Company or a Restricted Subsidiary, the issuance of which is permitted by this Indenture20.0 million.
(c) 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 Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall be determined by an officer of the Company. In the event that a Restricted Payment meets the criteria of more than one of the exceptions described in (i) through (xv) above or is entitled to be made pursuant to the first paragraph of this covenant, the Company may, in its sole discretion, classify, and may later reclassify from time to time, such Restricted Payment or any portion thereof into or among any of such applicable provisions.
Appears in 2 contracts
Samples: Indenture (Tennessee Woolen Mills Inc), Indenture (Pillowtex Corp)
Restricted Payments. (a) The Company Issuer 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 Equity Interests of the Company’s Issuer or any of its Restricted Subsidiaries’ Equity Interests Subsidiaries (including, without limitation, any payment in connection with any consolidation, arrangement, merger or consolidation amalgamation involving the Company Issuer or any of its Restricted Subsidiaries) or to the direct or indirect holders of Equity Interests of the Company’s Issuer or any of its Restricted Subsidiaries’ Equity Interests Subsidiaries in their capacity as such (other than (A) dividends or distributions accrued or payable in Equity Interests (other than Disqualified InterestsStock) of the Company or (B) Issuer and other than dividends or distributions payable to the Company Issuer or a Restricted Subsidiary of the CompanyIssuer);
(ii) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any consolidation, arrangement, merger or consolidation amalgamation involving the CompanyIssuer) any Equity Interests of the Company Issuer or any direct or indirect parent of the Company (other than any such Equity Interests owned by the Company or any Restricted Subsidiary of the Company)Issuer;
(iii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness of the Issuer or any Subsidiary that is unsecured Indebtedness for money borrowed, Indebtedness secured on a junior lien basis to the Notes or contractually subordinated to the Notes or to any Note Guarantee (other than excluding any intercompany Indebtedness permitted under clause (vi) between or among the Issuer and any of the definition of “Permitted Debt”) its Subsidiaries), except (a) a payment of interest or principal at Stated Maturity or (b) the purchase, repurchase repurchase, redemption, defeasance or other acquisition of any such Indebtedness or retirement for value in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case, due within one year of the date of such purchase, repurchase repurchase, redemption, defeasance or other acquisitionacquisition or retirement; or
(iv) make any Restricted Investment (all such payments and other actions set forth in clauses (i) through (iv) above being collectively referred to as “Restricted Payments”), unless, at the time of and after giving effect to such Restricted Payment:
(A) no 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 Fixed Charge Coverage Ratio test set forth in Section 4.09(a); and
(C) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after August 27, 2012 (excluding Restricted Payments permitted by clauses (i) (provided that at the time of declaring such dividend, such dividend was counted as a Restricted Payment) (ii), (iii), (iv), (v), (vi), (vii), (viii), (ix), (x), (xi), (xii), (xiii), (xiv) and (xv) of Section 4.07(b)), is less than the sum, without duplication, of
(1) 50% of the Consolidated Net Income of the Company for the period (taken as one accounting period) from April 2, 2012 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
(2) 100% of the aggregate net proceeds, including the fair market value of any property or Capital Interests, received by the Company since August 27, 2012 as a contribution to its equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified Interests) or from the issue or sale of Disqualified Interests or debt securities of the Company that have been converted into such Equity Interests (other than Equity Interests (or Disqualified Interests or convertible debt securities) sold to a Subsidiary of the Company), together with the aggregate cash and Cash Equivalents received by the Company or any of its Restricted Subsidiaries at the time of such conversion or exchange plus the amount by which Indebtedness of the Company and its Restricted Subsidiaries is reduced upon the conversion or exchange subsequent to August 27, 2012 of any Indebtedness or Disqualified Interests which are convertible into or exchangeable for Qualified Capital Interests of the Company or any of its Restricted Subsidiaries, plus
(3) 100% of the amount received, including the fair market value of any property received after August 27, 2012 by means of (A) the sale or other disposition (other than to the Company or a Restricted Subsidiary) of Restricted Investments made by the Company or its Restricted Subsidiaries and repurchases and redemptions of such Restricted Investments from the Company or its Restricted Subsidiaries and repayments of loans or advances which constitute Restricted Investments of the Company or its Restricted Subsidiaries or (B) the sale (other than to the Company or a Restricted Subsidiary) of the Capital Interests of an Unrestricted Subsidiary or a distribution from an Unrestricted Subsidiary (other than in each case to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment) or a dividend from an Unrestricted Subsidiary, plus
(4) in the case of the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary or the merger or consolidation of an Unrestricted Subsidiary into the Company or a Restricted Subsidiary or the transfer of assets of an Unrestricted Subsidiary to the Company or a Restricted Subsidiary, the fair market value of the Investment in such Unrestricted Subsidiary (other than an Unrestricted Subsidiary to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment), plus
(5) $141.0 million. The Board of Directors 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 in the Subsidiary so designated will be deemed to be Restricted Payments or Permitted Investments, in the Company’s discretion, at the time of such designation and will reduce the amount available for Restricted Payments or Permitted Investments, as applicable. 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 Payments or Permitted Investments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary.
(b) Section 4.07(a) shall The foregoing provisions will 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 call for giving of the redemption thereofnotice, as the case may be, if at said the date of declaration or call for notice, the dividend or redemption such payment would have complied with the provisions of this Indenture;
(ii) the making of any Restricted Payment in exchange for, or out of or with the net cash proceeds of the substantially concurrent sale (other than to a Subsidiary of the CompanyIssuer) of, Equity Interests of the Company Issuer (other than any Disqualified InterestsStock) or from a 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 redemption, repurchase, retirement, defeasance or other acquisition shall be excluded from Section 4.07(a)(C)(2)Issuer;
(iii) the defeasance, redemption, repurchase, replacement, extension, renewal, refinancing or retirement or other acquisition of subordinated Indebtedness or Disqualified Interests in exchange for or with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness;
(iv) the declaration, or payment of any dividend (or, in the case of any partnership or other distribution limited liability company, any similar distribution) by a Subsidiary of the Company Issuer to the holders of its common such Subsidiary’s Equity Interests on a pro rata basis;
(iv) the repurchase, redemption, defeasance or other acquisition or retirement for value of Indebtedness of the Issuer or any Guarantor that is contractually subordinated to the Notes or to any Guarantee with the net cash proceeds from a substantially concurrent incurrence of Permitted Refinancing Indebtedness;
(v) so long as no Default or Event of Default has occurred and is continuing, the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company Issuer or any Subsidiary of the Company Issuer held by any current or former officer, director, employee, consultant director or agent employee of Company the Issuer or any of its Restricted Subsidiaries (or Heirs or other permitted transferees thereof) upon deathpursuant to any equity subscription agreement, disability, retirement, severance or termination of employment or service or in connection with a stock option plan or agreement, shareholders agreement, shareholders’ agreement or similar agreement, plan or arrangement, including amendments thereto; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may not exceed: (A) exceed $10.0 2.5 million in any calendar year, with unused amounts being available to be used in any later calendar year; provided that such amount in any calendar year may be increased in an amount not to exceed the net cash proceeds from the sale of Equity Interests (other than Disqualified Interests) of the Company to any officer, director, employee or agent of the Company or any Subsidiary of the Company that occurs after the date of this Indenture, to the extent such net cash proceeds have not otherwise been applied to make Restricted Payments pursuant to Section 4.07(a)(C)(2); plus (B) the cash proceeds of key man life insurance policies received by the Company and its Restricted Subsidiaries after the date of this Indenture that are used for the repurchase, redemption or other acquisition or retirement for value owned by the individual (or such individual’s estate) that is the subject of such insurancetwelve-month period;
(vi) the repurchase of Equity Interests deemed to occur upon the exercise of options, warrants or other convertible securities stock options to the extent such Equity Interests represent a portion of the exercise price of those optionsstock options (or related withholding taxes);
(vii) payments of cash, warrants dividends, distributions, advances or other convertible securities and Restricted Payments by the Issuer or any of its Subsidiaries to allow the payment of cash payments in lieu of the issuance of fractional shares in connection with upon (A) the exercise of options, warrants, options or other convertible securities;
warrants or (viiB) the declaration and payment conversion or exchange of regular quarterly dividends on the Company’s Equity Interests in accordance with past practice and not to exceed $0.05 per shareCapital Stock of any such Person;
(viii) additional Restricted Payments not payments or distributions to exceed $150.0 million after August 27dissenting shareholders pursuant to applicable Law, 2012or pursuant to or in connection with a consolidation, amalgamation, merger or transfer of the Capital Stock of any Subsidiary or of all or substantially all of the assets of the Issuer, in each case, that complies with the requirements of this Indenture; provided that as a result of such consolidation, amalgamation, merger or transfer of assets, the Issuer shall have complied with Article 14;
(ix) payments made in connection with, or constituting any part of any Permitted Tax Reorganization and fees and expenses relating thereto;
(x) to the repurchase extent required in order to consummate the Transactions, Restricted Payments in an aggregate amount of not more than US$75.0 million distributed (directly or indirectly) pursuant to the Company’s Equity Interests Plan of Arrangement (as defined in the Business Combination Agreement); provided that any Restricted Payments made pursuant to this clause (x) shall reduce Restricted Payments otherwise available pursuant to clause (ii) on a dollar for dollar basis to the extent such distributions are funded by a contribution to the Issuer or a Subsidiary;
(xi) so long as (A) no Default or Event of Default has occurred and is continuing or would occur as a result of such Restricted Payments and (B) the Issuer will have no less than $25.0 million of unrestricted cash on hand (determined on a pro forma basis taking into account any payments contemplated to be made pursuant to this clause (xi)), Restricted Payments in an amount not to exceed $50.0 million after August 27, 2012;
(x) distributions or payments of Securitization Fees and purchases of Securitization Assets pursuant to a Securitization Repurchase Obligation in connection with a Qualified Securitization Financing;
(xi) any payments made in connection with the consummation of the transactions on substantially the terms described in the Offering Memorandum;then-applicable Available Cumulative Credit; and
(xii) the payment of intercompany subordinated debt, the incurrence of which was permitted under Section 4.09(b)(vi);
(xiii1) the purchase of fractional shares by the Company upon conversion of any securities of the Company into Capital Interests of the Company;
(xiv) the repurchase, redemption or other acquisition or retirement for value of subordinated Indebtedness or Disqualified Interests pursuant to the provisions similar to those described under Section 4.14 and Section 4.10; provided that all Notes tendered by Holders of the Notes transaction expenses in connection with the related Change of Control Offer Transactions and (2) any amounts due to dissenting shareholders in connection with the Transactions; provided that any Restricted Payments made pursuant to this clause (xii) shall reduce Restricted Payments otherwise available pursuant to clauses (ii) and (x) on a dollar for dollar basis to the extent such payments could be classified under clause (ii) or Asset Sale Offer(x), as applicable, have been repurchased, redeemed or acquired for value in full; and
(xv) payment of dividends on Disqualified Interests of the Company or a Restricted Subsidiary, the issuance of which is permitted by this Indenture.
(c) 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 Issuer or such 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 Section 4.13 will be determined by an the chief executive officer, the chief financial officer, the chief accounting officer or the controller of the Company. In Issuer and set forth in an Officer’s Certificate delivered to the event Trustee; provided that such determination of Fair Market Value shall be further evidenced by a resolution of the Board of Directors of the Issuer if the value of such Restricted Payment meets the criteria of more than one of the exceptions described in (i) through (xv) above or is entitled to be made pursuant to the first paragraph of this covenant, the Company mayexceeds $5.0 million. The Issuer, in its sole discretion, classify, and may later reclassify from time to time, such classify any Investment or other Restricted Payment as being made in part under one of the clauses or subclauses of this Section 4.13 (or, in the case of any portion thereof into Investment, the clauses or among subclauses of Permitted Investments) and in part under one or more other such clauses or subclauses (or, as applicable, clauses or subclauses), in each case, in any of such applicable provisionsmanner that complies with this Section 4.13.
Appears in 2 contracts
Samples: Subscription Agreement (M3-Brigade Acquisition III Corp.), Business Combination Agreement (M3-Brigade Acquisition III Corp.)
Restricted Payments. (a) The For so long as the aggregate Principal Amount of all Notes then outstanding is greater than $10,000,000, 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 Subsidiary of its Restricted Subsidiariesthe 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 (such, other than (A) dividends or distributions accrued or payable (a) in Equity Interests (other than Disqualified InterestsStock) of the Company or (B) dividends or distributions any Subsidiary of the Company to the Company or a Restricted any Subsidiary of the Company), or (b) in the case of dividends or distributions payable by any Subsidiary of the Company, pro rata to the holders of such Subsidiary’s Equity Interests;
(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 the Company (other than any such Equity Interests owned by the Company or any Restricted Subsidiary of the Company);
(iii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness of the Company or any of its Subsidiaries that is contractually subordinated to the Notes or any and the Note Guarantee (other than excluding any intercompany Indebtedness permitted under clause (vi) between or among the Company and any of the definition its Subsidiaries), except regularly scheduled payments of “Permitted Debt”) except (a) interest or a payment of interest or principal at Stated Maturity the maturity date; provided, however, that no Indebtedness will be deemed to be contractually subordinated in right of payment to the Notes and the Note Guarantees solely by virtue of being unsecured or, to the extent constituting secured Permitted Debt, by virtue of being secured on a first or (b) the purchase, repurchase or other acquisition of any such Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case, due within one year of the date of such purchase, repurchase or other acquisitionjunior Lien basis; or
(iv) make any Restricted Investment (Investment, all such payments and other actions set forth in clauses (i) through (iv) above being collectively referred to as “Restricted Payments”” unless, solely with respect to any payment or other action that would otherwise constitute a Restricted Payment as set forth in clause (i), unless(ii) or (iv) above, 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;
(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 Fixed Charge Coverage Ratio test set forth in Section 4.09(a)Payment; and
(C2) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after August 27, 2012 since the date of this Indenture (excluding Restricted Payments permitted by clauses (iii) (provided that at the time of declaring such dividend, such dividend was counted as a Restricted Payment) (ii), (iii), (iv), through and including (v), (vi), (vii), (viii), (ix), (x), (xi), (xii), (xiii), (xiv) and (xv) of Section 4.07(b))the next succeeding paragraph, is less than the sum, without duplication, of:
(1) A. 50% of the Consolidated Net Income of the Company for the period (taken as one accounting period) from April 2, 2012 the beginning of the first fiscal quarter commencing after the 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
(2) B. 100% of the aggregate net proceeds, including the fair market value of any property or Capital Interests, cash proceeds received by the Company since August 27, 2012 from and after the 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 InterestsStock) or from the issue or sale of convertible or exchangeable Disqualified Interests Stock or convertible or exchangeable debt securities of the Company that have been converted into or exchanged for such Equity Interests (other than Equity Interests (or Disqualified Interests Stock or convertible debt securities) sold to a Subsidiary of the Company), together with the aggregate cash and Cash Equivalents received by the Company or any of its Restricted Subsidiaries at the time of such conversion or exchange plus the amount by which Indebtedness of the Company and its Restricted Subsidiaries is reduced upon the conversion or exchange subsequent to August 27, 2012 of any Indebtedness or Disqualified Interests which are convertible into or exchangeable for Qualified Capital Interests of the Company or any of its Restricted Subsidiaries, ; plus
(3) 100% C. to the extent that any Restricted Investment that was made after the date of this Indenture is sold for cash or otherwise liquidated or repaid for cash, the amount received, including the fair market value of any property received after August 27, 2012 by means lesser of (Ai) the sale or other disposition cash return of capital with respect to such Restricted Investment (other than to less the Company or a Restricted Subsidiarycost of disposition, if any) of Restricted Investments made by and (ii) the Company or its Restricted Subsidiaries and repurchases and redemptions initial amount of such Restricted Investments from the Company or its Restricted Subsidiaries and repayments of loans or advances which constitute Restricted Investments of the Company or its Restricted Subsidiaries or (B) the sale (other than to the Company or a Restricted Subsidiary) of the Capital Interests of an Unrestricted Subsidiary or a distribution from an Unrestricted Subsidiary (other than in each case to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment) or a dividend from an Unrestricted Subsidiary, plus
(4) in the case of the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary or the merger or consolidation of an Unrestricted Subsidiary into the Company or a Restricted Subsidiary or the transfer of assets of an Unrestricted Subsidiary to the Company or a Restricted Subsidiary, the fair market value of the Investment in such Unrestricted Subsidiary (other than an Unrestricted Subsidiary to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment), plus
(5) $141.0 million. The Board of Directors 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 in the Subsidiary so designated will be deemed to be Restricted Payments or Permitted Investments, in the Company’s discretion, at the time of such designation and will reduce the amount available for Restricted Payments or Permitted Investments, as applicable. 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 Payments or Permitted Investments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary.
(b) Section 4.07(a) So long as no Event of Default shall have occurred and be continuing or would occur as a consequence thereof, the foregoing provisions shall 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 call for giving of the redemption thereofnotice, as the case may be, if at said the date of declaration or call for notice, the dividend or redemption such payment would have complied with the provisions of this Indenture;
(ii) the making of any Restricted Payment (other than a Restricted Payment as defined in clause (iii) of the definition of Restricted Payment) in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Subsidiary of the CompanyCompany or the Guarantor) of, Equity Interests of the Company (other than any Disqualified InterestsStock) or from a 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 redemption, repurchase, retirement, defeasance or other acquisition shall be excluded from Section 4.07(a)(C)(2);
(iii) the defeasance, redemption, repurchase, replacement, extension, renewal, refinancing or retirement defeasance or other acquisition or retirement for value of Indebtedness of the Company or its Subsidiaries that is contractually subordinated Indebtedness or Disqualified Interests in exchange for subordinated with respect to security interests to the Notes or the Note Guarantee with the net cash proceeds from an a substantially concurrent incurrence of Permitted Refinancing Indebtedness;
(iv) the declaration, or payment of any dividend or other distribution 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 current or former officer, director, employee, consultant employee or agent contractor of the Company or any of its Restricted Subsidiaries (in order to pay or Heirs satisfy such officer’s, director’s, employee’s or other permitted transferees thereof) contractor’s aggregate exercise price or withholding tax payment obligations or otherwise upon death, disability, retirement, severance retirement or termination of employment or service engagement, pursuant to awards granted under the Company’s equity incentive, stock option, restricted stock or in connection with a stock option plan or agreement, shareholders agreement, or similar agreement, plan or arrangement, including amendments theretoother long-term equity compensation plans; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may not exceed: (A) exceed $10.0 million 500,000 in the aggregate in any calendar year, with provided, that any unused amounts being available to be used in any later calendar year; provided that such amount in any calendar year may be increased in an amount not carried forward to exceed the net cash proceeds from the sale of Equity Interests one or more future periods; and
(other than Disqualified Interestsv) of the Company to any officer, director, employee or agent of the Company or any Subsidiary of the Company that occurs after the date of this Indenture, to the extent such net cash proceeds have not otherwise been applied to make Restricted Payments pursuant to Section 4.07(a)(C)(2); plus (B) the cash proceeds of key man life insurance policies received Investments by the Company and its Restricted Subsidiaries after the date of subsidiaries not otherwise permitted under this Indenture that are used for the repurchaseIndenture, redemption or other acquisition or retirement for value owned by the individual (or such individual’s estate) that is the subject of such insurance;
(vi) the repurchase of Equity Interests deemed to occur upon the exercise of options, warrants or other convertible securities to the extent such Equity Interests represent a portion of the exercise price of those options, warrants or other convertible securities and cash payments in lieu of the issuance of fractional shares in connection with the exercise of options, warrants, or other convertible securities;
(vii) the declaration and payment of regular quarterly dividends on the Company’s Equity Interests in accordance with past practice and not to exceed $0.05 per share;
(viii) additional Restricted Payments not to exceed $150.0 million after August 27, 2012;
(ix) the repurchase of the Company’s Equity Interests in an aggregate amount not to exceed $50.0 3.0 million after August 27, 2012;
(x) distributions or payments of Securitization Fees and purchases of Securitization Assets pursuant to a Securitization Repurchase Obligation in connection with a Qualified Securitization Financing;
(xi) at any payments made in connection with the consummation of the transactions on substantially the terms described in the Offering Memorandum;
(xii) the payment of intercompany subordinated debt, the incurrence of which was permitted under Section 4.09(b)(vi);
(xiii) the purchase of fractional shares by the Company upon conversion of any securities of the Company into Capital Interests of the Company;
(xiv) the repurchase, redemption or other acquisition or retirement for value of subordinated Indebtedness or Disqualified Interests pursuant to the provisions similar to those described under Section 4.14 and Section 4.10; provided that all Notes tendered by Holders of the Notes in connection with the related Change of Control Offer or Asset Sale Offer, as applicable, have been repurchased, redeemed or acquired for value in full; and
(xv) payment of dividends on Disqualified Interests of the Company or a Restricted Subsidiary, the issuance of which is permitted by this Indenture.
(c) time outstanding. 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 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 be determined by an officer the Board of the Company. In the event that a Restricted Payment meets the criteria of more than one of the exceptions described in (i) through (xv) above or is entitled to Directors whose resolution with respect thereto shall be made pursuant delivered to the first paragraph of this covenant, the Company may, Trustee in its sole discretion, classify, and may later reclassify from time to time, such Restricted Payment or any portion thereof into or among any of such applicable provisionsan Officers’ Certificate.
Appears in 2 contracts
Samples: Indenture (Akoustis, Inc.), Indenture (Akoustis Technologies, Inc.)
Restricted Payments. (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries Subsidiary 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’ Subsidiary’s Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company or any of its Restricted SubsidiariesSubsidiary) or to the direct or indirect holders of the Company’s or any of its Restricted Subsidiaries’ Subsidiary’s Equity Interests in their capacity as such (other than dividends or distributions payable (A) dividends or distributions accrued or payable in Equity Interests (other than Disqualified InterestsStock) of the Company or (B) 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 the Company (other than any such Equity Interests owned by the Company or any Restricted Subsidiary of the Company);
(iii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any (x) unsecured Indebtedness or (y) Indebtedness that is expressly subordinated to the Notes or any Note Guarantee (other than including, for the avoidance of doubt, any Indebtedness permitted under clause that is secured by a Lien on the Collateral that is junior in priority to the Lien granted to the Secured Lien Collateral Trustee) (viclauses (x) of the definition of and (y) above collectively being referred to as “Permitted Specified Junior Debt”) ), except (aA) a payment of interest or principal to the Company or any Restricted Subsidiary or (B) any payment made at the Stated Maturity thereof (or (b) the purchaseany payment, repurchase purchase or other acquisition of any such Indebtedness acquisition, in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case, maturity due within one year of the date of such purchase, repurchase or other acquisitionyear); or
(iv) make any Restricted Investment (all such payments and other actions set forth in these clauses (i) through (iv) above being collectively referred to as “Restricted Payments”), unless, at the time of and after giving effect to such Restricted Payment:
(A) no 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 Fixed Charge Coverage Ratio test set forth in Section 4.09(a); and
(C) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after August 27, 2012 (excluding Restricted Payments permitted by clauses (i) (provided that at the time of declaring such dividend, such dividend was counted as a Restricted Payment) (ii), (iii), (iv), (v), (vi), (vii), (viii), (ix), (x), (xi), (xii), (xiii), (xiv) and (xv) of Section 4.07(b)), is less than the sum, without duplication, of
(1) 50% of the Consolidated Net Income of the Company for the period (taken as one accounting period) from April 2, 2012 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
(2) 100% of the aggregate net proceeds, including the fair market value of any property or Capital Interests, received by the Company since August 27, 2012 as a contribution to its equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified Interests) or from the issue or sale of Disqualified Interests or debt securities of the Company that have been converted into such Equity Interests (other than Equity Interests (or Disqualified Interests or convertible debt securities) sold to a Subsidiary of the Company), together with the aggregate cash and Cash Equivalents received by the Company or any of its Restricted Subsidiaries at the time of such conversion or exchange plus the amount by which Indebtedness of the Company and its Restricted Subsidiaries is reduced upon the conversion or exchange subsequent to August 27, 2012 of any Indebtedness or Disqualified Interests which are convertible into or exchangeable for Qualified Capital Interests of the Company or any of its Restricted Subsidiaries, plus
(3) 100% of the amount received, including the fair market value of any property received after August 27, 2012 by means of (A) the sale or other disposition (other than to the Company or a Restricted Subsidiary) of Restricted Investments made by the Company or its Restricted Subsidiaries and repurchases and redemptions of such Restricted Investments from the Company or its Restricted Subsidiaries and repayments of loans or advances which constitute Restricted Investments of the Company or its Restricted Subsidiaries or (B) the sale (other than to the Company or a Restricted Subsidiary) of the Capital Interests of an Unrestricted Subsidiary or a distribution from an Unrestricted Subsidiary (other than in each case to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment) or a dividend from an Unrestricted Subsidiary, plus
(4) in the case of the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary or the merger or consolidation of an Unrestricted Subsidiary into the Company or a Restricted Subsidiary or the transfer of assets of an Unrestricted Subsidiary to the Company or a Restricted Subsidiary, the fair market value of the Investment in such Unrestricted Subsidiary (other than an Unrestricted Subsidiary to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment), plus
(5) $141.0 million. The Board of Directors 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 in the Subsidiary so designated will be deemed to be Restricted Payments or Permitted Investments, in the Company’s discretion, at the time of such designation and will reduce the amount available for Restricted Payments or Permitted Investments, as applicable. 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 Payments or Permitted Investments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary.
(b) Section 4.07(a) shall not prohibit:
(i) the payment of any dividend or other distribution or redemption within 60 days after the date of declaration or call for redemption thereof, if at said date of declaration or call for redemption such payment would have complied with the provisions of this Indenture;
(ii) the making of any Restricted Payment in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Subsidiary of the Company) of, Equity Interests of the Company (other than any Disqualified Interests) or from a contribution of capital to the Company; 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 Section 4.07(a)(C)(2);
(iii) the defeasance, redemption, repurchase, replacement, extension, renewal, refinancing or retirement or other acquisition of subordinated Indebtedness or Disqualified Interests in exchange for or with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness;
(iv) the declaration, or payment of any dividend or other distribution 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 current or former officer, director, employee, consultant or agent of Company or any of its Restricted Subsidiaries (or Heirs or other permitted transferees thereof) upon death, disability, retirement, severance or termination of employment or service or in connection with a stock option plan or agreement, shareholders agreement, or similar agreement, plan or arrangement, including amendments thereto; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may not exceed: (A) $10.0 million in any calendar year, with unused amounts being available to be used in any later calendar year; provided that such amount in any calendar year may be increased in an amount not to exceed the net cash proceeds from the sale of Equity Interests (other than Disqualified Interests) of the Company to any officer, director, employee or agent of the Company or any Subsidiary of the Company that occurs after the date of this Indenture, to the extent such net cash proceeds have not otherwise been applied to make Restricted Payments pursuant to Section 4.07(a)(C)(2); plus (B) the cash proceeds of key man life insurance policies received by the Company and its Restricted Subsidiaries after the date of this Indenture that are used for the repurchase, redemption or other acquisition or retirement for value owned by the individual (or such individual’s estate) that is the subject of such insurance;
(vi) the repurchase of Equity Interests deemed to occur upon the exercise of options, warrants or other convertible securities to the extent such Equity Interests represent a portion of the exercise price of those options, warrants or other convertible securities and cash payments in lieu of the issuance of fractional shares in connection with the exercise of options, warrants, or other convertible securities;
(vii) the declaration and payment of regular quarterly dividends on the Company’s Equity Interests in accordance with past practice and not to exceed $0.05 per share;
(viii) additional Restricted Payments not to exceed $150.0 million after August 27, 2012;
(ix) the repurchase of the Company’s Equity Interests in an amount not to exceed $50.0 million after August 27, 2012;
(x) distributions or payments of Securitization Fees and purchases of Securitization Assets pursuant to a Securitization Repurchase Obligation in connection with a Qualified Securitization Financing;
(xi) any payments made in connection with the consummation of the transactions on substantially the terms described in the Offering Memorandum;
(xii) the payment of intercompany subordinated debt, the incurrence of which was permitted under Section 4.09(b)(vi);
(xiii) the purchase of fractional shares by the Company upon conversion of any securities of the Company into Capital Interests of the Company;
(xiv) the repurchase, redemption or other acquisition or retirement for value of subordinated Indebtedness or Disqualified Interests pursuant to the provisions similar to those described under Section 4.14 and Section 4.10; provided that all Notes tendered by Holders of the Notes in connection with the related Change of Control Offer or Asset Sale Offer, as applicable, have been repurchased, redeemed or acquired for value in full; and
(xv) payment of dividends on Disqualified Interests of the Company or a Restricted Subsidiary, the issuance of which is permitted by this Indenture.
(c) 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 Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall be determined by an officer of the Company. In the event that a Restricted Payment meets the criteria of more than one of the exceptions described in (i) through (xv) above or is entitled to be made pursuant to the first paragraph of this covenant, the Company may, in its sole discretion, classify, and may later reclassify from time to time, such Restricted Payment or any portion thereof into or among any of such applicable provisions.
Appears in 2 contracts
Samples: Indenture (Geo Group Inc), Indenture (Geo Group Inc)
Restricted Payments. (a) 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 '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 SubsidiariesCompany) or to the direct or indirect holders of the Company’s 's or any of its Restricted Subsidiaries’ ' Equity Interests in their capacity as such (other than (A) dividends or distributions accrued or payable in Equity Interests (other than Disqualified InterestsStock) of the Company or (B) dividends or distributions to the Company or a Company), provided that each Restricted Subsidiary of the Company);
Company will be permitted to declare and pay dividends to the holders of such Restricted Subsidiary's common Equity Interests on a pro rata basis; (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 Restricted Subsidiary of the Company or any direct or indirect parent Affiliate of the Company (other than any such Equity Interests owned by the Company or any Restricted Subsidiary of the Company);
; (iii) 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 to the Notes or any Note Guarantee (other than Indebtedness permitted under clause (vi) of the definition of “Permitted Debt”) Senior Notes, except (ax) a payment of interest or principal at Stated Maturity or (by) pursuant to a change of control provision applicable to such subordinated Indebtedness, provided that the purchaseCompany has complied with the terms of Section 4.15 hereof and has paid, repurchase or other acquisition of any such Indebtedness has made adequate provision in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case, due within one year the reasonable judgment of the date Board of such purchaseDirectors for the payment of, repurchase the Senior Notes that have been or other acquisitionmay be tendered in response to a Change of Control Offer; or
or (iv) make any Restricted Investment (all such payments and other actions set forth in clauses (i) through (iv) 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;; and
(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 Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 4.09(a)4.09 hereof; and
(Cc) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after August 27, 2012 the date of this Indenture (including all Restricted Payments permitted by the next succeeding paragraph but excluding Restricted Payments permitted by clauses (i) (provided that at the time of declaring such dividend, such dividend was counted as a Restricted Payment) (ii), (iii), (iv), (v), (vi), (vii), (viii), (ix), (x), (xi), (xii), (xiii), (xiv) and (xvvi) of Section 4.07(b)the next succeeding paragraph), is less than the sum, without duplication, of
sum of (1i) 50% of the Consolidated Net Income of the Company for the period (taken as one accounting period) from April 2, 2012 the beginning of the first fiscal quarter commencing after the 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 (2ii) 100% of the aggregate net proceeds, including the fair market value of any property or Capital Interests, cash proceeds received by the Company since August 27, 2012 as a contribution to its equity capital or from the issue or sale since the date of this Indenture of Equity Interests of the Company (other than Disqualified InterestsStock) or from the issue or sale of Disqualified Interests Stock or debt securities of the Company that have been converted into such Equity Interests (other than Equity Interests (or Disqualified Interests Stock or convertible debt securities) sold to a Subsidiary of the CompanyCompany and other than Disqualified Stock or convertible debt securities that have been converted into Disqualified Stock), together plus (iii) to the extent that any Restricted Investment that was made after the 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 aggregate cash cost of disposition, if any) and Cash Equivalents received (B) the initial amount of such Restricted Investment and (C) the amount resulting from redesignations of Unrestricted Subsidiaries as Restricted Subsidiaries (in each case, such amount to be valued as provided in the second succeeding paragraph) not to exceed the amount of Investments previously made by the Company or any of its Restricted Subsidiaries at the time of such conversion or exchange plus the amount by which Indebtedness of the Company and its Restricted Subsidiaries is reduced upon the conversion or exchange subsequent to August 27, 2012 of any Indebtedness or Disqualified Interests which are convertible into or exchangeable for Qualified Capital Interests of the Company or any of its Restricted Subsidiaries, plus
(3) 100% of the amount received, including the fair market value of any property received after August 27, 2012 by means of (A) the sale or other disposition (other than to the Company or a Restricted Subsidiary) of Restricted Investments made by the Company or its Restricted Subsidiaries and repurchases and redemptions of such Restricted Investments from the Company or its Restricted Subsidiaries and repayments of loans or advances which constitute Restricted Investments of the Company or its Restricted Subsidiaries or (B) the sale (other than to the Company or a Restricted Subsidiary) of the Capital Interests of an Unrestricted Subsidiary or a distribution from an Unrestricted Subsidiary (other than in each case to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment) or a dividend from an Unrestricted Subsidiary, plus
(4) in the case of the redesignation of an Unrestricted Subsidiary and which was treated as a Restricted Subsidiary or the merger or consolidation of an Unrestricted Subsidiary into the Company or a Restricted Subsidiary or the transfer of assets of an Unrestricted Subsidiary to the Company or a Restricted Subsidiary, the fair market value of the Investment in such Unrestricted Subsidiary (other than an Unrestricted Subsidiary to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment), plus
(5) $141.0 millionPayment under this Indenture. The Board of Directors 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 in the Subsidiary so designated will be deemed to be Restricted Payments or Permitted Investments, in the Company’s discretion, at the time of such designation and will reduce the amount available for Restricted Payments or Permitted Investments, as applicable. 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 Payments or Permitted Investments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary.
(b) Section 4.07(a) foregoing provisions shall not prohibit:
prohibit (i) the payment of any dividend or other distribution or redemption within 60 days after the date of declaration or call for redemption thereof, if at said date of declaration or call for redemption such payment would have complied with the provisions of this Indenture;
; (ii) the making redemption, repurchase, retirement, defeasance or other acquisition of any Restricted Payment subordinated Indebtedness or Equity Interests of 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 Interests) or from a contribution of capital to the CompanyStock); 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 Section 4.07(a)(C)(2);
clause (c)(ii) of the preceding paragraph; (iii) the defeasance, redemption, repurchase, replacement, extension, renewal, refinancing or retirement repurchase or other acquisition of pari passu or subordinated Indebtedness or Disqualified Interests in exchange for or with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness;
; (iv) the declaration, or payment of any dividend or other distribution 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 Restricted Subsidiary of the Company held by any current or former officer, director, employee, consultant or agent member of Company the Company's (or any of its Restricted Subsidiaries (Subsidiaries') management, employees or Heirs consultants pursuant to any management, employee or other permitted transferees thereof) upon death, disability, retirement, severance consultant equity subscription agreement or termination of employment or service or in connection with a stock option plan or agreement, shareholders agreement, or similar agreement, plan or arrangement, including amendments thereto; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may shall not exceed: (A) exceed $10.0 million 500,000 in any calendar year, with unused amounts being available to twelve-month period and no Default or Event of Default shall have occurred and be used continuing immediately after such transaction; (v) cash payments in any later calendar year; provided that such amount in any calendar year may be increased in an amount not to exceed the net cash proceeds from the sale lieu of Equity Interests (other than Disqualified Interests) of the Company to any officer, director, employee or agent fractional shares issuable as dividends on preferred securities of the Company or any Subsidiary of its Restricted Subsidiaries; provided that such cash payments shall not exceed $50,000 in the Company that occurs aggregate in any twelve-month period and no Default or Event of Default shall have occurred and be continuing immediately after the date of this Indenture, such transaction; and (vi) payments pursuant to the extent Varsity Merger Documents. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such net cash proceeds have designation would not otherwise been applied cause a Default; provided that in no event shall the business currently operated by Xxxxxxx, Inc. and Varsity be transferred to make Restricted Payments pursuant to Section 4.07(a)(C)(2); plus (B) the cash proceeds or held by an Unrestricted Subsidiary. For purposes of key man life insurance policies received making such determination, all outstanding Investments by the Company and its Restricted Subsidiaries after (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 and shall reduce the amount available for Restricted Payments under the first paragraph of this Section 4.07 hereof. All such outstanding Investments shall be deemed to constitute Investments in an amount equal to the greatest of (x) the net book value of such Investments at the time of such designation and (y) the fair market value of such Investments at the time of such designation. Such designation shall 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 such designation by the Board of Directors shall be evidenced to the Trustee by filing with the Trustee a certified copy of the Board Resolution giving effect to such designation and an Officers' Certificate certifying that such designation complied with the foregoing conditions and was permitted by the provisions of Section 4.07. If, at any time, any Unrestricted Subsidiary would fail to meet the foregoing requirements as an Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this 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 Section 4.09 hereof the Company shall be in default of such covenant). The Board of Directors 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 4.09 hereof calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period, and (ii) no Default or Event of Default would be in existence following such designation. In computing the Consolidated Net Income of the Company under the foregoing clause (c)(i), (i) the Company may use audited financial statements for the portions of the relevant period for which audited financial statements are available on the date of this Indenture that are used for the repurchase, redemption or determination and unaudited financial statements and other acquisition or retirement for value owned by the individual (or such individual’s estate) that is the subject of such insurance;
(vi) the repurchase of Equity Interests deemed to occur upon the exercise of options, warrants or other convertible securities to the extent such Equity Interests represent a portion of the exercise price of those options, warrants or other convertible securities and cash payments in lieu of the issuance of fractional shares in connection with the exercise of options, warrants, or other convertible securities;
(vii) the declaration and payment of regular quarterly dividends current financial data based on the Company’s Equity Interests in accordance with past practice books and not to exceed $0.05 per share;
(viii) additional Restricted Payments not to exceed $150.0 million after August 27, 2012;
(ix) the repurchase of the Company’s Equity Interests in an amount not to exceed $50.0 million after August 27, 2012;
(x) distributions or payments of Securitization Fees and purchases of Securitization Assets pursuant to a Securitization Repurchase Obligation in connection with a Qualified Securitization Financing;
(xi) any payments made in connection with the consummation of the transactions on substantially the terms described in the Offering Memorandum;
(xii) the payment of intercompany subordinated debt, the incurrence of which was permitted under Section 4.09(b)(vi);
(xiii) the purchase of fractional shares by the Company upon conversion of any securities records of the Company into Capital Interests for the remaining portion of such period and (ii) the Company shall be permitted to rely in good faith on the financial statements and other financial data derived from its books and records that are available on the date of determination. If the Company makes a Restricted Payment that, at the time of the Company;
(xiv) making of such Restricted Payment, would in the repurchase, redemption or other acquisition or retirement for value of subordinated Indebtedness or Disqualified Interests pursuant to the provisions similar to those described under Section 4.14 and Section 4.10; provided that all Notes tendered by Holders of the Notes in connection with the related Change of Control Offer or Asset Sale Offer, as applicable, have been repurchased, redeemed or acquired for value in full; and
(xv) payment of dividends on Disqualified Interests good faith determination of the Company or a Restricted Subsidiary, be permitted under the issuance requirements of which is permitted by this Indenture.
(c) , 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 Company's financial statements affecting Consolidated Net Income of the Company for any period. 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 by an officer the Board of Directors whose resolution with respect thereto shall be delivered to the Company. In the event that a Restricted Payment meets the criteria of more than one of the exceptions described in (i) through (xv) above or is entitled Trustee, such determination to be made pursuant to 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 first paragraph date of this covenantmaking any Restricted Payment, the Company may, in its sole discretion, classify, and may later reclassify from time shall deliver to time, 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 hereof were computed, together with a copy of any fairness opinion or any portion thereof into or among any of such applicable provisionsappraisal required by this Indenture.
Appears in 2 contracts
Samples: Indenture (Varsity Spirit Corporation), Indenture (Riddell Sports Inc)
Restricted Payments. (a) The Company shall Issuers will not, and shall will not permit any of its their 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 's or any of its Restricted Subsidiaries’ Subsidiary's Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company or any of its Restricted SubsidiariesSubsidiary) or to the direct or indirect holders of the Company’s 's or any of its Restricted Subsidiaries’ Subsidiary's Equity Interests in their capacity as such (other than (A) distributions or dividends or distributions accrued or payable in Equity Interests (other than Disqualified InterestsEquity) of the Company and other than distributions or (B) dividends or distributions payable to the Company or to a Wholly-Owned Restricted Subsidiary of the CompanySubsidiary);
; (ii) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the CompanyCompany or EOTT Finance) any Equity Interests of the Company or any direct of its Restricted Subsidiaries or indirect parent any Affiliate of the Company (other than any such Equity Interests owned by the Company or by any of its Wholly-Owned Restricted Subsidiary of the CompanySubsidiaries);
; (iii) 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 to the Notes or any Note Guarantee (other than Indebtedness permitted under clause (vi) of the definition of “Permitted Debt”) Subsidiary Guarantees, except (aA) a payment of interest or principal at the Stated Maturity or thereof and (bB) the purchase, repurchase or other acquisition of any such Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case, due within one year of the date of such purchaseCompany or a Restricted Subsidiary, repurchase which Indebtedness is owned by the Company or other acquisitiona Wholly-Owned Restricted Subsidiary; or
or (iv) make any Restricted Investment other than a Permitted Investment (all such payments and other actions set forth in the clauses (i) through (iv) 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 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 Fixed Charge Coverage Ratio test set forth in Section 4.09(a); and
for the Company's four most recent fiscal quarters for which internal financial statements are available is at least 2.25 to 1.0, and (CIII) such Restricted Payment, together with the aggregate amount of all other Restricted Payments declared or made by the Company and its Restricted Subsidiaries after August 27, 2012 (excluding Restricted Payments permitted by clauses (i) (provided that at the time of declaring such dividend, such dividend was counted as a Restricted Payment) (ii), (iii), (iv), (v), (vi), (vii), (viii), (ix), (x), (xi), (xii), (xiii), (xiv) and (xv) of Section 4.07(b)), is less than the sum, without duplication, of
(1) 50% of the Consolidated Net Income of the Company for the period (taken as one accounting period) from April 2, 2012 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
(2) 100% of the aggregate net proceeds, including the fair market value of any property or Capital Interests, received by the Company since August 27, 2012 as a contribution to its equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified Interests) or from the issue or sale of Disqualified Interests or debt securities of the Company that have been converted into such Equity Interests (other than Equity Interests (or Disqualified Interests or convertible debt securities) sold to a Subsidiary of the Company), together with the aggregate cash and Cash Equivalents received by the Company or any of its Restricted Subsidiaries at the time of such conversion or exchange plus the amount by which Indebtedness of the Company and its Restricted Subsidiaries is reduced upon the conversion or exchange subsequent to August 27, 2012 of any Indebtedness or Disqualified Interests which are convertible into or exchangeable for Qualified Capital Interests of the Company or any of its Restricted Subsidiaries, plus
(3) 100% of the amount received, including the fair market value of any property received after August 27, 2012 by means of (A) the sale or other disposition (other than to the Company or a Restricted Subsidiary) of Restricted Investments made by the Company or its Restricted Subsidiaries and repurchases and redemptions of such Restricted Investments from the Company or its Restricted Subsidiaries and repayments of loans or advances which constitute Restricted Investments of the Company or its Restricted Subsidiaries or (B) the sale (other than to the Company or a Restricted Subsidiary) of the Capital Interests of an Unrestricted Subsidiary or a distribution from an Unrestricted Subsidiary (other than in each case to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment) or a dividend from an Unrestricted Subsidiary, plus
(4) in the case of the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary or the merger or consolidation of an Unrestricted Subsidiary into the Company or a Restricted Subsidiary or the transfer of assets of an Unrestricted Subsidiary to the Company or a Restricted Subsidiary, the fair market value of the Investment in such Unrestricted Subsidiary (other than an Unrestricted Subsidiary to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment), plus
(5) $141.0 million. The Board of Directors 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 in the Subsidiary so designated will be deemed to be Restricted Payments or Permitted Investments, in the Company’s discretion, at the time of such designation and will reduce the amount available for Restricted Payments or Permitted Investments, as applicable. 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 Payments or Permitted Investments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary.
(b) Section 4.07(a) shall not prohibit:
(i) the payment of any dividend or other distribution or redemption within 60 days after the date of declaration or call for redemption thereof, if at said date of declaration or call for redemption such payment would have complied with the provisions of this Indenture;
(ii) the making of any Restricted Payment in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Subsidiary of the Company) of, Equity Interests of the Company (other than any Disqualified Interests) or from a contribution of capital to the Company; 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 Section 4.07(a)(C)(2);
(iii) the defeasance, redemption, repurchase, replacement, extension, renewal, refinancing or retirement or other acquisition of subordinated Indebtedness or Disqualified Interests in exchange for or with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness;
(iv) the declaration, or payment of any dividend or other distribution 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 current or former officer, director, employee, consultant or agent of Company or any of its Restricted Subsidiaries (or Heirs or other permitted transferees thereof) upon death, disability, retirement, severance or termination of employment or service or in connection with a stock option plan or agreement, shareholders agreement, or similar agreement, plan or arrangement, including amendments thereto; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may not exceed: (A) $10.0 million in any calendar year, with unused amounts being available to be used in any later calendar year; provided that such amount in any calendar year may be increased in an amount not to exceed the net cash proceeds from the sale of Equity Interests (other than Disqualified Interests) of the Company to any officer, director, employee or agent of the Company or any Subsidiary of the Company that occurs after the date of this Indenture, to the extent such net cash proceeds have not otherwise been applied to make Restricted Payments pursuant to Section 4.07(a)(C)(2); plus (B) the cash proceeds of key man life insurance policies received by the Company and its Restricted Subsidiaries after the date of this Indenture that are used for Indenture, is less than or equal to the repurchasesum, redemption or other acquisition or retirement for value owned by without duplication, of (a) the individual (or such individual’s estate) that is Consolidated Distributable Cash Flow of the subject Company accrued on a cumulative basis during the period beginning on January 1, 2003 and ending on the last day of the Company's last fiscal quarter ending prior to the date of such insurance;
proposed Restricted Payment (vior, if such aggregate Consolidated Distributable Cash Flow shall be a negative, minus such amount) and (b) the repurchase aggregate net cash proceeds of any (i) capital contribution to the Company from any Person (other than a Restricted Subsidiary of the Company) made after the Issue Date, (ii) issuance and sale made after the Issue Date of Equity Interests deemed to occur upon the exercise of options, warrants or (other convertible securities to the extent such Equity Interests represent a portion of the exercise price of those options, warrants or other convertible securities and cash payments in lieu of the issuance of fractional shares in connection with the exercise of options, warrants, or other convertible securities;
(viithan Disqualified Equity) the declaration and payment of regular quarterly dividends on the Company’s Equity Interests in accordance with past practice and not to exceed $0.05 per share;
(viii) additional Restricted Payments not to exceed $150.0 million after August 27, 2012;
(ix) the repurchase of the Company’s , (iii) issuance or sale made after the Issue Date of convertible or exchangeable Disqualified Equity Interests in an amount not to exceed $50.0 million after August 27, 2012;
(x) distributions or payments of Securitization Fees and purchases of Securitization Assets pursuant to a Securitization Repurchase Obligation in connection with a Qualified Securitization Financing;
(xi) any payments made in connection with the consummation of the transactions on substantially the terms described in the Offering Memorandum;
(xii) the payment of intercompany subordinated debt, the incurrence of which was permitted under Section 4.09(b)(vi);
(xiii) the purchase of fractional shares by the Company upon conversion of any convertible or exchangeable debt securities of the Company into Capital Interests of the Company;
(xiv) the repurchase, redemption or other acquisition or retirement for value of subordinated Indebtedness or Disqualified Interests pursuant to the provisions similar to those described under Section 4.14 and Section 4.10; provided that all Notes tendered by Holders of the Notes in connection with the related Change of Control Offer or Asset Sale Offer, as applicable, have been repurchased, redeemed converted into or acquired exchanged for value in full; and
(xv) payment of dividends on Disqualified Interests of the Company or a Restricted Subsidiary, the issuance of which is permitted by this Indenture.
(c) 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 Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall be determined by an officer of the Company. In the event that Equity Interest substantially concurrently with a Restricted Payment meets the criteria of more than one of the exceptions described in (i) through (xv) above or is entitled to be made pursuant to the first paragraph of this covenant, the Company may, in its sole discretion, classify, and may later reclassify from time to time, such Restricted Payment or any portion thereof into or among any of such applicable provisions.proceeds and
Appears in 2 contracts
Samples: Indenture (Eott Energy Finance Corp), Indenture (Eott Energy Finance Corp)
Restricted Payments. (a) The Company shall Holdings 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 Holdings’, or any of its Restricted Subsidiaries’ Equity Interests (includingInterests, without limitation, including any payment dividend or distribution payable 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 (Aa) dividends or distributions accrued or by Holdings payable solely in Equity Interests (other than Disqualified InterestsStock) of the Company Holdings; or (Bb) dividends or distributions to by a Restricted Subsidiary so long as, in the Company case of any dividend or distribution payable on or in respect of any class or series of securities issued by a Restricted Subsidiary, Holdings or a Restricted Subsidiary receives at least its pro rata share of the Company)such dividend or distribution in accordance with its Equity Interests in such class or series of securities;
(ii2) 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 the Company (other than any such Equity Interests owned by the Company or any Restricted Subsidiary of the Company);
(iii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness that is subordinated to the Notes Equity Interests of Holdings, or any Note Guarantee direct or indirect parent of Holdings, including any purchase, redemption, defeasance, acquisition or retirement, in connection with any merger or consolidation;
(3) make any principal payment on, or redeem, repurchase, defease or otherwise acquire or retire for value in each case, prior to any scheduled repayment, sinking fund payment or maturity, any Subordinated Indebtedness, other than (a) Indebtedness permitted under clause Section 4.09(b)(7) and (vi) of the definition of “Permitted Debt”) except (a) a payment of interest or principal at Stated Maturity 8) or (b) the purchase, repurchase or other acquisition of any such Subordinated Indebtedness purchased in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case, case due within one year of the date of such purchase, repurchase or other acquisition; or
(iv4) make any Restricted Investment Investment; (all such payments and other actions set forth in clauses (i1) through (iv4) above (other than any exceptions thereof) being collectively referred to as “Restricted Payments”), unless, at the time of and after giving effect to such Restricted Payment:
(AI) no 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 immediately after giving effect to such transaction on a pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter periodbasis, have been permitted to Holdings could incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in under Section 4.09(a)) herein; and
(CIII) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company Holdings and its Restricted Subsidiaries after August 27, 2012 the Issue Date (excluding including Restricted Payments permitted by clauses (i) (provided that at the time of declaring such dividend, such dividend was counted as a Restricted Payment) (ii1), (iii2) (with respect to the payment of dividends on Refunding Capital Stock (as defined below) pursuant to paragraph (b) thereof only), (iv6)(c), (v7), (vi), (vii), (viii), (ix), (x), (xi), (xii), (xiii), (xiv9) and (xv13) (to the extent not deducted in calculating Consolidated Net Income) of Section 4.07(b), but excluding all other Restricted Payments permitted by Section 4.07(b)), is less than the sum, sum of (without duplication, of):
(1A) 50% of the Consolidated Net Income of the Company Holdings for the period (taken as one accounting period) from April 2beginning on July 1, 2012 2021, 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 (Payment, or, if in the case such Consolidated Net Income for such period is a deficit, less minus 100% of such deficit), ; plus
(2B) 100% of the aggregate net proceeds, including cash proceeds and the fair market value of any marketable securities or other property or Capital Interests, received by Holdings since immediately after the Company since August 27, 2012 as a contribution to its equity capital or from the issue or sale of Equity Interests of the Company Issue Date (other than Disqualified Interests) or from the issue or sale of Disqualified Interests or debt securities of the Company that have been converted into such Equity Interests (other than Equity Interests (or Disqualified Interests or convertible debt securities) sold to a Subsidiary of the Company), together with the aggregate cash and Cash Equivalents received by the Company or any of its Restricted Subsidiaries at the time of such conversion or exchange plus the amount by which Indebtedness of the Company and its Restricted Subsidiaries is reduced upon the conversion or exchange subsequent to August 27, 2012 of any Indebtedness or Disqualified Interests which are convertible into or exchangeable for Qualified Capital Interests of the Company or any of its Restricted Subsidiaries, plus
(3) 100% of the amount received, including the fair market value of any property received after August 27, 2012 by means of (A) the sale or other disposition (other than to the Company or a Restricted Subsidiary) of Restricted Investments made by the Company or its Restricted Subsidiaries and repurchases and redemptions of such Restricted Investments from the Company or its Restricted Subsidiaries and repayments of loans or advances which constitute Restricted Investments of the Company or its Restricted Subsidiaries or (B) the sale (other than to the Company or a Restricted Subsidiary) of the Capital Interests of an Unrestricted Subsidiary or a distribution from an Unrestricted Subsidiary (other than in each case to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment) or a dividend from an Unrestricted Subsidiary, plus
(4) in the case of the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary or the merger or consolidation of an Unrestricted Subsidiary into the Company or a Restricted Subsidiary or the transfer of assets of an Unrestricted Subsidiary to the Company or a Restricted Subsidiary, the fair market value of the Investment in such Unrestricted Subsidiary (other than an Unrestricted Subsidiary to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment), plus
(5) $141.0 million. The Board of Directors 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 in the Subsidiary so designated will be deemed to be Restricted Payments or Permitted Investments, in the Company’s discretion, at the time of such designation and will reduce the amount available for Restricted Payments or Permitted Investments, as applicable. 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 Payments or Permitted Investments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary.
(b) Section 4.07(a) shall not prohibit:
(i) the payment of any dividend or other distribution or redemption within 60 days after the date of declaration or call for redemption thereof, if at said date of declaration or call for redemption such payment would have complied with the provisions of this Indenture;
(ii) the making of any Restricted Payment in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Subsidiary of the Company) of, Equity Interests of the Company (other than any Disqualified Interests) or from a contribution of capital to the Company; 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 Section 4.07(a)(C)(2);
(iii) the defeasance, redemption, repurchase, replacement, extension, renewal, refinancing or retirement or other acquisition of subordinated Indebtedness or Disqualified Interests in exchange for or with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness;
(iv) the declaration, or payment of any dividend or other distribution 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 current or former officer, director, employee, consultant or agent of Company or any of its Restricted Subsidiaries (or Heirs or other permitted transferees thereof) upon death, disability, retirement, severance or termination of employment or service or in connection with a stock option plan or agreement, shareholders agreement, or similar agreement, plan or arrangement, including amendments thereto; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may not exceed: (A) $10.0 million in any calendar year, with unused amounts being available to be used in any later calendar year; provided that such amount in any calendar year may be increased in an amount not to exceed the net cash proceeds from the sale of Equity Interests (other than Disqualified Interests) of the Company to any officer, director, employee or agent of the Company or any Subsidiary of the Company that occurs after the date of this Indenture, to the extent such net cash proceeds have not otherwise been applied used to make Restricted Payments incur Indebtedness, or issue Disqualified Stock or Preferred Stock pursuant to Section 4.07(a)(C)(24.09(b)(12)(A); plus ) from the issue or sale of:
(Bi) the Equity Interests of Holdings, including Treasury Capital Stock (as defined below), but excluding cash proceeds of key man life insurance policies received by the Company and its Restricted Subsidiaries after the date of this Indenture that are used for the repurchase, redemption or other acquisition or retirement for value owned by the individual (or such individual’s estate) that is the subject of such insurance;
(vi) the repurchase of Equity Interests deemed to occur upon the exercise of options, warrants or other convertible securities to the extent such Equity Interests represent a portion of the exercise price of those options, warrants or other convertible securities and cash payments in lieu of the issuance of fractional shares in connection with the exercise of options, warrants, or other convertible securities;
(vii) the declaration and payment of regular quarterly dividends on the Company’s Equity Interests in accordance with past practice and not to exceed $0.05 per share;
(viii) additional Restricted Payments not to exceed $150.0 million after August 27, 2012;
(ix) the repurchase of the Company’s Equity Interests in an amount not to exceed $50.0 million after August 27, 2012;
(x) distributions or payments of Securitization Fees and purchases of Securitization Assets pursuant to a Securitization Repurchase Obligation in connection with a Qualified Securitization Financing;
(xi) any payments made in connection with the consummation of the transactions on substantially the terms described in the Offering Memorandum;
(xii) the payment of intercompany subordinated debt, the incurrence of which was permitted under Section 4.09(b)(vi);
(xiii) the purchase of fractional shares by the Company upon conversion of any securities of the Company into Capital Interests of the Company;
(xiv) the repurchase, redemption or other acquisition or retirement for value of subordinated Indebtedness or Disqualified Interests pursuant to the provisions similar to those described under Section 4.14 and Section 4.10; provided that all Notes tendered by Holders of the Notes in connection with the related Change of Control Offer or Asset Sale Offer, as applicable, have been repurchased, redeemed or acquired for value in full; and
(xv) payment of dividends on Disqualified Interests of the Company or a Restricted Subsidiary, the issuance of which is permitted by this Indenture.
(c) The amount of all Restricted Payments (other than cash) shall be the fair market value on of marketable securities or other property received from the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company or such Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall be determined by an officer of the Company. In the event that a Restricted Payment meets the criteria of more than one of the exceptions described in (i) through (xv) above or is entitled to be made pursuant to the first paragraph of this covenant, the Company may, in its sole discretion, classify, and may later reclassify from time to time, such Restricted Payment or any portion thereof into or among any of such applicable provisions.sale of:
Appears in 2 contracts
Samples: Supplemental Indenture (APi Group Corp), Indenture (APi Group Corp)
Restricted Payments. (a) The Company shall Issuer 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 CompanyIssuer’s or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company Issuer or any of its Restricted Subsidiaries) or to the direct or indirect holders of the CompanyIssuer’s or any of its Restricted Subsidiaries’ Equity Interests in their capacity as such (other than (A) dividends or distributions accrued or payable in Equity Interests (Interests, other than Disqualified Interests) Stock, of the Company or (B) Issuer and other than dividends or distributions payable to the Company Issuer or a Restricted Subsidiary of the CompanyIssuer);
(ii2) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the CompanyIssuer) any Equity Interests of the Company or any direct or indirect parent of the Company (other than any such Equity Interests owned by the Company or any Restricted Subsidiary of the Company)Issuer;
(iii3) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value value, any Indebtedness of the Issuer or any Guarantor that is contractually subordinated to the Notes or to any Note Guarantee (other than excluding (x) any intercompany Indebtedness permitted under clause (vi) between or among the Issuer and any of the definition of “Permitted Debt”) except (a) a payment of interest or principal at Stated Maturity its Restricted Subsidiaries or (by) the purchase, repurchase repurchase, or other acquisition of Indebtedness that is contractually subordinated to the Notes or to any such Indebtedness Note Guarantee, as the case may be, purchased in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case, case due within one year of the date of such purchase, repurchase or other acquisition), except a payment of interest or principal at the Stated Maturity thereof; or
(iv4) make any Restricted Investment (all such payments and other actions set forth in these clauses (i1) through (iv4) 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 has occurred and be is continuing or would occur as a consequence thereofof such Restricted Payment;
(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 Fixed Charge Coverage Ratio test set forth in Section 4.09(a4.07(a); and
(C) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company Issuer and its Restricted Subsidiaries after August 27, 2012 since the date of this Indenture (excluding Restricted Payments permitted by clauses (i2) through (provided that at the time of declaring such dividend, such dividend was counted as a Restricted Payment) (ii), (iii), (iv), (v), (vi), (vii), (viii), (ix), (x), (xi), (xii), (xiii), (xiv) and (xv20) of Section 4.07(b4.05(b)), is less than the sum, without duplication, of:
(1i) 50% of the Consolidated Net Income of the Company Issuer for the period (taken as one accounting period) from the beginning of April 21, 2012 2011 to the end of the CompanyIssuer’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
(2ii) 100% of the aggregate net proceeds, including cash and the fair market value Fair Market Value of any property or Capital Interestsother than cash, received by the Company Issuer since August 27, 2012 as a contribution to its equity capital or the date of this Indenture from the issue or sale of Equity Interests of the Company Issuer (other than Disqualified InterestsStock, Designated Preferred Stock or Excluded Contributions) or from the issue or sale of convertible or exchangeable Disqualified Interests Stock or convertible or exchangeable debt securities of the Company that have been converted into or exchanged for such Equity Interests (other than Equity Interests (or Disqualified Interests Stock or convertible debt securities) sold to a Subsidiary of the CompanyIssuer), together with the aggregate cash and Cash Equivalents received by the Company or any of its Restricted Subsidiaries at the time of such conversion or exchange plus the amount by which Indebtedness of the Company and its Restricted Subsidiaries is reduced upon the conversion or exchange subsequent to August 27, 2012 of any Indebtedness or Disqualified Interests which are convertible into or exchangeable for Qualified Capital Interests of the Company or any of its Restricted Subsidiaries, ; plus
(3iii) to the extent that any Restricted Investment that was made after the date of this Indenture is sold for cash or otherwise liquidated or repaid for cash, 100% of the aggregate amount received in cash and the Fair Market Value of property other than cash received; plus
(iv) to the extent that any Unrestricted Subsidiary of the Issuer designated as such after the date of this Indenture is redesignated as a Restricted Subsidiary after the date of this Indenture or has been merged into, consolidated or amalgamated with or into, or transfers or conveys its assets to, the Issuer or a Restricted Subsidiary of the Issuer, 100% of the Fair Market Value of the Issuer’s Investment in such Subsidiary as of the date of such redesignation, combination or transfer (or of the assets transferred or conveyed, as applicable) after deducting any Indebtedness associated with the Unrestricted Subsidiary so designated or combined or any Indebtedness associated with the assets so transferred or conveyed; plus
(v) 100% of any dividends or distributions received by the amount received, including the fair market value of any property received after August 27, 2012 by means of (A) the sale or other disposition (other than to the Company Issuer or a Restricted Subsidiary) of Restricted Investments made by the Company or its Restricted Subsidiaries and repurchases and redemptions of such Restricted Investments from the Company or its Restricted Subsidiaries and repayments of loans or advances which constitute Restricted Investments Subsidiary of the Company or its Restricted Subsidiaries or (B) Issuer after the sale (other than to the Company or a Restricted Subsidiary) date of the Capital Interests of an Unrestricted Subsidiary or a distribution this Indenture from an Unrestricted Subsidiary (other than in each case of the Issuer, to the extent the Investment in that such Unrestricted Subsidiary constituted a Permitted Investment) dividends or a dividend from an Unrestricted Subsidiary, plus
(4) distributions were not otherwise included in the case Consolidated Net Income of the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary or the merger or consolidation of an Unrestricted Subsidiary into the Company or a Restricted Subsidiary or the transfer of assets of an Unrestricted Subsidiary to the Company or a Restricted Subsidiary, the fair market value of the Investment in Issuer for such Unrestricted Subsidiary (other than an Unrestricted Subsidiary to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment), plus
(5) $141.0 million. The Board of Directors 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 in the Subsidiary so designated will be deemed to be Restricted Payments or Permitted Investments, in the Company’s discretion, at the time of such designation and will reduce the amount available for Restricted Payments or Permitted Investments, as applicable. 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 Payments or Permitted Investments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiaryperiod.
(b) The provisions of Section 4.07(a4.05(a) shall hereof will not prohibit:
(i1) the payment of any dividend or other distribution or the consummation of any redemption within 60 days after the date of declaration of the dividend or call for distribution or giving of the redemption thereofnotice, if as the case may be, if, at said the date of declaration or call for notice, the dividend, distribution or redemption such payment would have complied with the provisions of this Indenture;
(ii2) the making of any Restricted Payment 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, Equity Interests of the Company Issuer (other than any Disqualified InterestsStock) or from a the substantially concurrent contribution of common equity capital to the CompanyIssuer; provided that the amount of any such net cash proceeds that are utilized for any such redemption, Restricted Payment will be excluded from clause (C)(ii) of Section 4.05(a) hereof;
(3) the repurchase, retirementredemption, defeasance or other acquisition shall be excluded from Section 4.07(a)(C)(2);
(iii) the defeasance, redemption, repurchase, replacement, extension, renewal, refinancing or retirement for value of Indebtedness of the Issuer or other acquisition of any Restricted Subsidiary that is contractually subordinated Indebtedness to the Notes or Disqualified Interests in exchange for or to any Note Guarantee with the net cash proceeds from an a substantially concurrent incurrence of Permitted Refinancing Indebtedness;
(iv4) the declaration, or payment of any dividend or other distribution Restricted Payment made by a Restricted Subsidiary of the Company Issuer to the holders of its common Equity Interests on a pro rata basis;
(v5) the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company Issuer or any Restricted Subsidiary of the Company Issuer held by any current or former officer, director, employee, consultant or agent employee of Company the Issuer or any of its Restricted Subsidiaries (or Heirs or other permitted transferees thereof) upon deathpursuant to the requirements of any equity subscription agreement, disability, retirement, severance or termination of employment or service or in connection with a stock option plan or agreement, shareholders agreement, shareholders’ or members’ agreement or similar agreement, plan or arrangement, including amendments thereto; provided that arrangement or otherwise in the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may not exceed: (A) $10.0 million in any calendar year, with unused amounts being available to be used in any later calendar year; provided that such amount in any calendar year may be increased in an amount not to exceed the net cash proceeds from the sale ordinary course of Equity Interests (other than Disqualified Interests) of the Company to any officer, director, employee or agent of the Company or any Subsidiary of the Company that occurs after the date of this Indenture, to the extent such net cash proceeds have not otherwise been applied to make Restricted Payments pursuant to Section 4.07(a)(C)(2); plus (B) the cash proceeds of key man life insurance policies received by the Company and its Restricted Subsidiaries after the date of this Indenture that are used for the repurchase, redemption or other acquisition or retirement for value owned by the individual (or such individual’s estate) that is the subject of such insurancebusiness;
(vi6) the repurchase of Equity Interests deemed to occur upon the exercise of options, warrants or other convertible securities stock options to the extent such Equity Interests represent a portion of the exercise price of those stock options, warrants or other convertible securities and cash payments in lieu of the issuance of fractional shares in connection with the exercise of options, warrants, or other convertible securities;
(vii7) the declaration and payment of regular quarterly regularly scheduled or accrued dividends or distributions to holders of any class or series of Disqualified Stock of the Issuer or any Restricted Subsidiary of the Issuer issued on or after the Company’s Equity Interests date of this Indenture in accordance with past practice and not to exceed $0.05 per sharethe Fixed Charge Coverage Ratio test described in Section 4.07 hereof;
(viii) additional 8) Restricted Payments not to exceed $150.0 million after August 27, 2012;
(ix) the repurchase arising as a result of the Company’s Equity Interests in an amount not to exceed $50.0 million after August 27, 2012;
(x) distributions or payments of Securitization Fees and purchases of Securitization Assets pursuant to a Securitization Repurchase Obligation in connection with a Qualified Securitization Receivables Financing;
(xi9) the declaration and payment of dividends or other distributions to holders of any class or series of Designated Preferred Stock (other than Disqualified Stock) issued after the date of this Indenture; provided, however, that (A) for the most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date of issuance of such Designated Preferred Stock, after giving effect to such issuance (and the payment of dividends or distributions) on a pro forma basis, the Issuer could incur an additional $1.00 of Indebtedness pursuant to the Fixed Charge Coverage Ratio, and (B) the aggregate amount of dividends declared and paid pursuant to this clause (9) does not exceed the net cash proceeds actually received by the Issuer from any such sale of Designated Preferred Stock (other than Disqualified Stock) issued after the date of this Indenture;
(10) any payments made or to be made in connection with the consummation of the transactions on substantially the terms described in the Offering MemorandumXxxxxx Transactions;
(xii11) Investments that are made with Excluded Contributions;
(12) other Restricted Payments in an aggregate amount not to exceed $650 million since the date of this Indenture;
(13) the satisfaction of change of control obligations once the Issuer has fulfilled its obligations under this Indenture with respect to a Change of Control;
(14) the repayment of intercompany debt that was permitted to be incurred under this Indenture;
(15) cash dividends or other distributions on the Issuer’s Capital Stock used to fund the payment of fees and expenses owed by the Issuer or its Restricted Subsidiaries to Affiliates, to the extent permitted by Section 4.09 hereof;
(16) the payment of intercompany subordinated debtdividends, distributions on or the repurchase of, the incurrence Issuer’s common equity of which was up to $200 million per calendar year (with unused amounts in any calendar year being permitted under Section 4.09(b)(vito be carried over for the next succeeding calendar year up to a maximum of $400 million in any calendar year);
(xiii17) the purchase repurchase, redemption, defeasance or other acquisition or retirement for value of Indebtedness of the Issuer or any Restricted Subsidiary that is contractually subordinated to the Notes or to any Note Guarantee with any Excess Proceeds that remain after consummation of an Asset Sale Offer;
(18) cash payments in lieu of fractional shares by issuable as dividends on preferred stock or upon the Company upon conversion of any convertible debt securities of the Company into Capital Interests Issuer or any of the Companyits Restricted Subsidiaries;
(xiv19) the repurchase, redemption or other acquisition or retirement for value of subordinated Indebtedness Disqualified Stock of the Issuer or any Restricted Subsidiary of the Issuer made by exchange for, or out of the proceeds of, the substantially concurrent sale of Disqualified Interests Stock that is permitted to be incurred pursuant to the provisions similar to those described under Section 4.14 and Section 4.10; provided that all Notes tendered by Holders of the Notes in connection with the related Change of Control Offer or Asset Sale Offer, as applicable, have been repurchased, redeemed or acquired for value in full4.07; and
(xv20) payment the distribution, as a dividend or otherwise, of dividends on Disqualified Interests shares of Capital Stock of, or Indebtedness owed to the Company Issuer or a Restricted SubsidiarySubsidiary of the Issuer by, Unrestricted Subsidiaries; provided, however, that at the issuance time of, and after giving effect to, any Restricted Payment permitted under clauses (6) and (9), no Default or Event of which is permitted by this IndentureDefault shall have occurred and be continuing or would occur as a consequence thereof.
(c) 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 Issuer or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value .
(d) For purposes of any non-cash Restricted Payment shall be determined by an officer of determining compliance with the Company. In provisions set forth above, in the event that a Restricted Payment meets the criteria of more than one of the exceptions types of Restricted Payments described in (i) through (xv) the above or is entitled to be made pursuant to the first paragraph of this covenantclauses, the Company mayIssuer, in its sole discretion, may order and classify, and may later reclassify from time to timetime may reorder and reclassify, such Restricted Payment or if it would have been permitted at the time such Restricted Payment was made and at the time of any portion thereof into or among any of such applicable provisionsreclassification.
Appears in 2 contracts
Samples: Indenture (Alpha Natural Resources, Inc.), Indenture (Alpha Natural Resources, Inc.)
Restricted Payments. (a) The Company Holdings shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly:
(i) declare or pay (without duplication) any dividend or make any other payment or distribution on account of the Company’s Holdings’ or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company Holdings or any of its Restricted Subsidiaries) or to the direct or indirect holders of the Company’s Holdings’ or any of its Restricted Subsidiaries’ Equity Interests in their capacity as such (other than (A) dividends dividends, payments or distributions accrued or (x) payable in Equity Interests (other than Disqualified InterestsStock) of the Company Holdings or (By) dividends or distributions to the Company Holdings or a Restricted Subsidiary of the CompanyHoldings);
(ii) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the CompanyBorrower or Holdings) any Equity Interests of the Company Borrower or any direct or indirect parent of the Company (other than any such Equity Interests owned by the Company or any Restricted Subsidiary of the Company)Holdings;
(iii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness that is subordinated to the Notes Obligations (excluding any intercompany Indebtedness between or among Holdings and any Note Guarantee (other than Indebtedness permitted under clause (vi) of the definition of “Permitted Debt”) its Restricted Subsidiaries), except (ax) a payment of interest or principal at the Stated Maturity thereof or (by) the purchase, repurchase or other acquisition of any such Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case, case due within one year of the date of such purchase, repurchase or other acquisition; or
(iv) make any Restricted Investment (all such payments and other actions set forth in clauses (iSections 9.01(a)(i) through (iv) 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 periodFour Quarter Period, have been permitted to incur Incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.09(a9.03(a); and
(C) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company Holdings and its Restricted Subsidiaries after August 27October 1, 2012 (excluding Restricted Payments permitted by clauses (i) (provided that at the time of declaring such dividend, such dividend was counted as a Restricted Payment) (iisubclauses 9.01(b)(ii), (iii), (iv), (v), (vi), (vii), (viii), (ix), (x), (xi), (xii), (xiii), (xiv) and (xvx) of Section 4.07(b)below), is less than the sum, without duplication, of:
(1) 50100% of the Consolidated Net Income Cash Flow of the Company Holdings for the period (taken as one accounting period) from April 2October 1, 2012 to the end of the Company’s Holdings’ most recently ended fiscal quarter Fiscal Quarter for which internal financial statements are available at the time of such Restricted Payment (orPayment, if such Consolidated Net Income minus 1.5 times the Fixed Charges of Holdings for such period is a deficit, less 100% of such deficit)the same period, plus
(2) 100% of the aggregate net proceeds, cash proceeds (including the fair market value of any property or Capital Interests, Cash Equivalents) received by the Company Holdings since August 27October 1, 2012 as a contribution to its common equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified InterestsStock) of Holdings or from the issue Incurrence of Indebtedness of Holdings or sale of Disqualified Interests or debt securities of the Company Borrower that have has been converted into or exchanged for such Equity Interests (other than Equity Interests (sold to, or Disqualified Interests or convertible debt securities) sold to Indebtedness held by, a Subsidiary of the CompanyHoldings), together with the aggregate cash and Cash Equivalents received by the Company or any of its Restricted Subsidiaries at the time of such conversion or exchange plus the amount by which Indebtedness of the Company and its Restricted Subsidiaries is reduced upon the conversion or exchange subsequent to August 27, 2012 of any Indebtedness or Disqualified Interests which are convertible into or exchangeable for Qualified Capital Interests of the Company or any of its Restricted Subsidiaries, plus
(3) 100% of the amount received, including the fair market value of any property received after August 27, 2012 by means of (A) the sale or other disposition (other than with respect to the Company or a Restricted Subsidiary) of Restricted Investments made by the Company or Holdings and its Restricted Subsidiaries and repurchases and redemptions of after the Effective Date, an amount equal to the net reduction in such Restricted Investments in any Person resulting from the Company or its Restricted Subsidiaries and repayments of loans or advances which constitute Restricted Investments advances, or other transfers of the Company or its Restricted Subsidiaries or assets (B) the sale (including dividends and other than to the Company or a Restricted Subsidiary) of the Capital Interests of an Unrestricted Subsidiary or a distribution from an Unrestricted Subsidiary (other than distributions), in each case to Holdings or any Restricted Subsidiary or from the net cash proceeds from the sale of any such Restricted Investment (except, in each case, to the extent any such payment or proceeds are included in the Investment calculation of Consolidated Cash Flow), from the release of any Guarantee (except to the extent any amounts are paid under such Guarantee)) or from redesignations of Unrestricted Subsidiaries as Restricted Subsidiaries, not to exceed, in each case, the amount of Restricted Investments previously made by Holdings or any Restricted Subsidiary in such Person or Unrestricted Subsidiary constituted a Permitted Investment) or a dividend from an Unrestricted Subsidiary, after the Effective Date; plus
(4) in the case of the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary or the merger or consolidation of an Unrestricted Subsidiary into the Company or a Restricted Subsidiary or the transfer of assets of an Unrestricted Subsidiary to the Company or a Restricted Subsidiary, the fair market value of the Investment in such Unrestricted Subsidiary (other than an Unrestricted Subsidiary to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment), plus
(5) $141.0 400.0 million. The Board of Directors 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 in the Subsidiary so designated will be deemed to be Restricted Payments or Permitted Investments, in the Company’s discretion, at the time of such designation and will reduce the amount available for Restricted Payments or Permitted Investments, as applicable. 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 Payments or Permitted Investments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary.
(b) Section 4.07(a) the preceding provisions shall not prohibit, so long as in the case of subclauses (iv), (vii), (ix) and (x) below of this Section 9.01(b), no Default has occurred and is continuing or would be caused thereby:
(i) the payment of any dividend or other distribution or redemption within 60 days after the date of declaration or call for redemption thereof, if at said date of declaration or call for redemption such payment would have complied with the provisions of this IndentureAgreement;
(ii) the payment of any dividend (or in the case of any partnership or limited liability company, any similar distribution) by a Restricted Subsidiary of Holdings to the holders of its Common Stock on a pro rata basis;
(iii) the making of any Restricted Payment in exchange for, or out of the net cash proceeds of a contribution to the common equity of Holdings or a substantially concurrent sale (other than to a Subsidiary of the CompanyHoldings) of, Equity Interests of the Company (other than any Disqualified InterestsStock) or from a contribution of capital Holdings except to the Companyextent such net cash proceeds are taken into account for purposes of Indebtedness Incurred pursuant to Section 9.03(b)(xiii); 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 Section 4.07(a)(C)(2clause (C)(2) of the preceding paragraph (a);
(iiiiv) the defeasance, redemption, repurchase, replacement, extension, renewal, refinancing or retirement repurchase or other acquisition of Indebtedness subordinated Indebtedness or Disqualified Interests in exchange for or to the Obligations with the net cash proceeds from an incurrence Incurrence of Permitted Refinancing Indebtedness;
(ivv) the declarationInvestments acquired as a capital contribution to, or payment in exchange for, or out of any dividend or the net cash proceeds of a substantially concurrent sale (other distribution by than to a Subsidiary of the Company Holdings) of, Equity Interests (other than Disqualified Stock) of, Holdings except to the holders extent such net cash proceeds are taken into account for purposes of its common Equity Interests on a pro rata basisIndebtedness Incurred pursuant to Section 9.03(b)(xiii); provided that the amount of any such net cash proceeds that are utilized for any such acquisition or exchange shall be excluded from clause (C)(2) of the preceding paragraph (a);
(vvi) the repurchase of Equity Interests deemed to occur upon the exercise of options or warrants to the extent that such Equity Interests represents all or a portion of the exercise price thereof;
(a) the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Subsidiary of the Company Holdings held by any current or former officer, director, employee, consultant or agent director of Company Holdings, or any of its Restricted Subsidiaries (or Heirs or other permitted transferees thereof) upon deathof Holdings pursuant to the terms of any equity subscription agreement, disability, retirement, severance or termination of employment or service or in connection with a stock option plan or agreement, shareholders agreement, agreement or similar agreement, plan or arrangement, including amendments theretoagreement entered into in the ordinary course of business; provided that the aggregate price of all amounts paid for all such repurchasedby Holdings in any calendar year shall not exceed $2.5 million (with unused amounts in any calendar year being carried over to the next succeeding calendar year, redeemed, acquired or retired Equity Interests may not exceed: (Asubject to maximum payment of $5.0 million) $10.0 million in any calendar year); provided, with unused amounts being available to be used in any later calendar year; provided further, that such amount in any calendar year may be increased in by an amount not equal to exceed (a) the net cash proceeds from the sale of Equity Interests (other than Disqualified Interests) of the Company Holdings to any officercurrent or former members of management, directordirectors, employee consultants or agent of the Company or any Subsidiary of the Company employees that occurs after October 1, 2012 (provided that the date amount of this Indenture, to the extent any such net cash proceeds have not otherwise been applied to make Restricted Payments pursuant to Section 4.07(a)(C)(2shall be excluded from clause (C)(2) of the preceding paragraph (a); ) plus (Bb) the net cash proceeds of key man life insurance policies received by the Company and Holdings or its Restricted Subsidiaries after the date of this Indenture that are used for the repurchaseOctober 1, redemption or other acquisition or retirement for value owned by the individual (or such individual’s estate) that is the subject of such insurance;
(vi) the repurchase of Equity Interests deemed to occur upon the exercise of options, warrants or other convertible securities to the extent such Equity Interests represent a portion of the exercise price of those options, warrants or other convertible securities and cash payments in lieu of the issuance of fractional shares in connection with the exercise of options, warrants, or other convertible securities;
(vii) the declaration and payment of regular quarterly dividends on the Company’s Equity Interests in accordance with past practice and not to exceed $0.05 per share2012;
(viii) additional the purchase, redemption, acquisition, cancellation or other retirement for value of shares of Capital Stock of Holdings, to the extent necessary, in the good faith judgment of Holdings’ Board of Directors, to prevent the loss or secure the renewal or reinstatement of any license held by Holdings or any of its Restricted Payments not to exceed $150.0 million after August 27, 2012Subsidiaries from any governmental agency;
(ix) the repurchase of the Company’s Equity Interests other Restricted Payments in an aggregate amount not to exceed $50.0 million after August 27, 2012;75.0 million; and
(x) distributions the declaration or payments of Securitization Fees and purchases of Securitization Assets pursuant to a Securitization Repurchase Obligation in connection with a Qualified Securitization Financing;
(xi) any payments made in connection with the consummation of the transactions on substantially the terms described in the Offering Memorandum;
(xii) the payment of intercompany subordinated debt, the incurrence of which was permitted under Section 4.09(b)(vi);
(xiii) the purchase of fractional shares by the Company upon conversion of any securities of the Company into Capital Interests of the Company;
(xiv) the repurchase, redemption or other acquisition or retirement for value of subordinated Indebtedness or Disqualified Interests pursuant to the provisions similar to those described under Section 4.14 and Section 4.10; provided that all Notes tendered by Holders of the Notes in connection with the related Change of Control Offer or Asset Sale Offer, as applicable, have been repurchased, redeemed or acquired for value in full; and
(xv) payment of dividends on to holders of any class or series of Disqualified Interests Stock of the Company Holdings or a any of its Restricted Subsidiary, the issuance of which is permitted by this Indenture.
(c) Subsidiaries issued in accordance with Section 9.03. 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 to or by the Company Holdings or such Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment ; provided that if the Fair Market Value exceeds $10.0 million, such Fair Market Value shall be determined in good faith by an officer the Board of Directors of Holdings evidenced by a resolution of the Company. In the event that a Restricted Payment meets the criteria Board of more than one Directors of the exceptions described in (i) through (xv) above or is entitled to be made pursuant to the first paragraph of this covenant, the Company may, in its sole discretion, classify, and may later reclassify from time to time, such Restricted Payment or any portion thereof into or among any of such applicable provisionsHoldings.
Appears in 2 contracts
Samples: Credit Agreement and Subsidiaries Guaranty (Leap Wireless International Inc), Credit Agreement (Leap Wireless International Inc)
Restricted Payments. (a) 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 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 (A) dividends or distributions accrued or payable in Equity Interests (other than Disqualified InterestsStock) of the Company or (B) and other than dividends or distributions 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 the Company (other than any such Equity Interests owned by the Company or any Restricted Subsidiary of the Company);
(iii) make any payment on or with respect topurchase, or purchasedefease, redeem, defease prepay, decrease or otherwise acquire or retire for value value, prior to any scheduled final maturity, scheduled repayment or scheduled sinking fund payment, any Indebtedness of the Company that is subordinated expressly contractually subordinate or junior in right of payment to the Notes or any Note Guarantee (other than Indebtedness permitted under clause (vi) owed by the Company to a Subsidiary of the definition of “Permitted Debt”) except (a) a payment of interest Company, or principal at Stated Maturity or (b) the purchase, repurchase or other acquisition of any such payment on Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case, due within one year of the date of such purchase, repurchase defeasance, redemption, prepayment, decrease or other acquisitionacquisition or retirement); or
(iv) make any Restricted Investment (all each such payments and other actions set forth in these clauses (i) through (iv) above being collectively referred to as as, a “Restricted PaymentsPayment”), unless, at the time of and after giving effect to such Restricted Payment:
(A) no 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 Fixed Charge Coverage Ratio test set forth in Section 4.09(a); and
(C) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after August 27, 2012 (excluding Restricted Payments permitted by clauses (i) (provided that at the time of declaring such dividend, such dividend was counted as a Restricted Payment) (ii), (iii), (iv), (v), (vi), (vii), (viii), (ix), (x), (xi), (xii), (xiii), (xiv) and (xv) of Section 4.07(b)), is less than the sum, without duplication, of
(1) 50% of the Consolidated Net Income of the Company for the period (taken as one accounting period) from April 2, 2012 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
(2) 100% of the aggregate net proceeds, including the fair market value of any property or Capital Interests, received by the Company since August 27, 2012 as a contribution to its equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified Interests) or from the issue or sale of Disqualified Interests or debt securities of the Company that have been converted into such Equity Interests (other than Equity Interests (or Disqualified Interests or convertible debt securities) sold to a Subsidiary of the Company), together with the aggregate cash and Cash Equivalents received by the Company or any of its Restricted Subsidiaries at the time of such conversion or exchange plus the amount by which Indebtedness of the Company and its Restricted Subsidiaries is reduced upon the conversion or exchange subsequent to August 27, 2012 of any Indebtedness or Disqualified Interests which are convertible into or exchangeable for Qualified Capital Interests of the Company or any of its Restricted Subsidiaries, plus
(3) 100% of the amount received, including the fair market value of any property received after August 27, 2012 by means of (A) the sale or other disposition (other than to the Company or a Restricted Subsidiary) of Restricted Investments made by the Company or its Restricted Subsidiaries and repurchases and redemptions of such Restricted Investments from the Company or its Restricted Subsidiaries and repayments of loans or advances which constitute Restricted Investments of the Company or its Restricted Subsidiaries or (B) the sale (other than to the Company or a Restricted Subsidiary) of the Capital Interests of an Unrestricted Subsidiary or a distribution from an Unrestricted Subsidiary (other than in each case to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment) or a dividend from an Unrestricted Subsidiary, plus
(4) in the case of the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary or the merger or consolidation of an Unrestricted Subsidiary into the Company or a Restricted Subsidiary or the transfer of assets of an Unrestricted Subsidiary to the Company or a Restricted Subsidiary, the fair market value of the Investment in such Unrestricted Subsidiary (other than an Unrestricted Subsidiary to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment), plus
(5) $141.0 million. The Board of Directors 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 in the Subsidiary so designated will be deemed to be Restricted Payments or Permitted Investments, in the Company’s discretion, at the time of such designation and will reduce the amount available for Restricted Payments or Permitted Investments, as applicable. 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 Payments or Permitted Investments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary.
(b) The provisions of Section 4.07(a10.8(a) shall will not prohibit:
(i) the payment of any dividend or other distribution or redemption within 60 days after the date of declaration or call for redemption thereof, if at said date of declaration or call for redemption such payment would have complied with the provisions of this Indenture;
(ii) the making of any Restricted Payment in exchange for, or out of or with the net cash proceeds of the substantially concurrent sale (other than to a Subsidiary of the Company) of, Equity Interests of the Company (other than any Disqualified InterestsStock) or from a the substantially concurrent contribution of common equity capital to the Company; provided that ;
(ii) the amount of any such net cash proceeds that are utilized for any such redemptionpurchase, repurchase, retirementredemption, defeasance or other acquisition shall be excluded or retirement for value of Indebtedness of the Company that is contractually subordinated to the Notes in exchange for, or out of the net cash proceeds from Section 4.07(a)(C)(2)a substantially concurrent incurrence of, Permitted Refinancing Indebtedness;
(iii) the defeasance, redemption, repurchase, replacement, extension, renewal, refinancing or retirement or other acquisition of subordinated Indebtedness or Disqualified Interests in exchange for or with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness;
(iv) the declaration, or payment of any dividend (or, in the case of any partnership or other distribution limited liability company, any similar distribution) by a Subsidiary of the Company to the holders of its common Equity Interests on a pro rata basis;
(viv) so long as no Default or Event of 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 Subsidiary of the Company held by any then current or former officer, director, employee, consultant director or agent employee of the Company or any of its Restricted Subsidiaries (or Heirs or other permitted transferees thereof) upon deathpursuant to any equity subscription agreement, disability, retirement, severance or termination of employment or service or in connection with a stock option plan or agreement, shareholders agreement, shareholders’ agreement or similar agreement, plan or arrangement, including amendments thereto; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may not exceed: (A) exceed $10.0 million 500,000 in any calendar year, with unused amounts being available to be used in any later calendar year; provided that such amount in any calendar year may be increased in an amount not to exceed the net cash proceeds from the sale of Equity Interests (other than Disqualified Interests) of the Company to any officer, director, employee or agent of the Company or any Subsidiary of the Company that occurs after the date of this Indenture, to the extent such net cash proceeds have not otherwise been applied to make Restricted Payments pursuant to Section 4.07(a)(C)(2); plus (B) the cash proceeds of key man life insurance policies received by the Company and its Restricted Subsidiaries after the date of this Indenture that are used for the repurchase, redemption or other acquisition or retirement for value owned by the individual (or such individual’s estate) that is the subject of such insurance;
(viv) the repurchase of Equity Interests deemed to occur upon the exercise of stock options, warrants or other convertible or exchangeable securities to the extent such Equity Interests represent a portion of the exercise price of those stock options, warrants or other convertible securities or exchangeable securities, and cash payments in lieu (b) repurchases of the issuance of fractional shares Equity Interests or options to purchase Equity Interests deemed to occur in connection with the exercise of stock options, warrants or other convertible or exchangeable securities to the extent necessary to pay applicable withholding taxes; and
(vi) any payment of cash by the Company in respect of fractional shares of the Company’s Capital Stock upon the exercise, conversion or exchange of any stock options, warrants, other rights to purchase Capital Stock or other convertible or exchangeable securities;
(vii) the declaration and payment of regular quarterly dividends on the Company’s Equity Interests in accordance with past practice and not to exceed $0.05 per share;
(viii) additional Restricted Payments not to exceed $150.0 million after August 27, 2012;
(ix) the repurchase of the Company’s Equity Interests in an amount not to exceed $50.0 million after August 27, 2012;
(x) distributions or payments of Securitization Fees and purchases of Securitization Assets pursuant to a Securitization Repurchase Obligation in connection with a Qualified Securitization Financing;
(xi) any payments made in connection with the consummation of the transactions on substantially the terms described in the Offering Memorandum;
(xii) the payment of intercompany subordinated debt, the incurrence of which was permitted under Section 4.09(b)(vi);
(xiii) the purchase of fractional shares by the Company upon conversion of any securities of the Company into Capital Interests of the Company;
(xiv) the repurchase, redemption or other acquisition or retirement for value of subordinated Indebtedness or Disqualified Interests pursuant to the provisions similar to those described under Section 4.14 and Section 4.10; provided that all Notes tendered by Holders of the Notes in connection with the related Change of Control Offer or Asset Sale Offer, as applicable, have been repurchased, redeemed or acquired for value in full; and
(xv) payment of dividends on Disqualified Interests of the Company or a Restricted Subsidiary, the issuance of which is permitted by this Indenture.
(c) 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 Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall be determined by an officer of the Company. In the event that a Restricted Payment meets the criteria of more than one of the exceptions described in (i) through (xv) above or is entitled to be made pursuant to the first paragraph of this covenant, the Company may, in its sole discretion, classify, and may later reclassify from time to time, such Restricted Payment or any portion thereof into or among any of such applicable provisions.
Appears in 2 contracts
Samples: Note Exchange Agreement (Kingstone Companies, Inc.), Note and Warrant Exchange Agreement (Kingstone Companies, Inc.)
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 (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 (A) dividends or distributions accrued or payable in Equity Interests (other than Disqualified InterestsStock) of the Company or (B) and other than dividends or distributions payable to the Company or a Restricted Subsidiary of the Company);
(ii2) purchase, redeem repurchase, redeem, defease 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 the Company (Company, in each case held by Persons other than any such Equity Interests owned by the Company or any a Restricted Subsidiary of the Company);
(iii3) make any principal payment on or with respect to, or purchase, repurchase, redeem, defease or otherwise acquire or retire for value any Subordinated Indebtedness that is subordinated to the Notes or any Note Guarantee (other than Indebtedness permitted under clause (vi) of the definition of “Permitted Debt”) except (a) a payment of interest or principal at Stated Maturity or (b) the payment, purchase, repurchase repurchase, redemption, defeasance, acquisition or other acquisition retirement of any such (i) intercompany Indebtedness between or among the Company and its Restricted Subsidiaries, and (ii) Subordinated Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturitymaturity thereof, in each case, case due within one year of the date of such payment, purchase, repurchase repurchase, redemption, defeasance, acquisition or other acquisitionretirement); or
(iv4) make any Restricted Investment (all such payments and other actions set forth in clauses (i1) through (iv4) 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 Fixed Charge Coverage Ratio test set forth in Section 4.09(a); and
(C3) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after August 27February 3, 2012 (excluding Restricted Payments permitted by clauses clause (i) (provided that at the time of declaring such dividend, such dividend was counted as a Restricted Payment) (ii2), (iii3), (iv4), (v5), (vi6), (vii7), (viii8), (9), (ix10), (x11), (xi12), (xii13), (xiii), 14) or (xiv) and (xv15) of Section 4.07(b)), is less than the sum, without duplication, of:
(1A) 50% of the cumulative Consolidated Net Income (excluding any dividends or distributions to the extent the Company elects to include such dividends or distributions in clause (14)(b) of the definition of “Permitted Investments” in accordance with such clause) of the Company for the period (taken as one accounting period) from April 2commencing on January 1, 2012 2012, 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 (Payment; or, if such Consolidated Net Income for such period is a deficit, less minus 100% of such deficit), plus
(2B) 100% of the aggregate net proceeds, proceeds (including the fair market value of any property or Capital Interests, other than cash) received by the Company since August 27(other than any net proceeds or assets received in connection with the contribution of assets pursuant to the Separation Agreement) after February 3, 2012 2012, as a contribution to its common equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified Interests) or from the issue or sale of Disqualified Interests or debt securities of the Company that have been converted into such Equity Interests (other than Equity Interests (or Disqualified Interests or convertible debt securities) sold to a Subsidiary of the Company), together with the aggregate cash and Cash Equivalents received by the Company or any of its Restricted Subsidiaries at the time of such conversion or exchange plus the amount by which Indebtedness of the Company and its Restricted Subsidiaries is reduced upon the conversion or exchange subsequent to August 27, 2012 of any Indebtedness or Disqualified Interests which are convertible into or exchangeable for Qualified Capital Interests of the Company or any of its Restricted Subsidiaries, plus
(3) 100% of the amount received, including the fair market value of any property received after August 27, 2012 by means of (A) the sale or other disposition (other than to the Company or a Restricted Subsidiary) of Restricted Investments made by the Company or its Restricted Subsidiaries and repurchases and redemptions of such Restricted Investments from the Company or its Restricted Subsidiaries and repayments of loans or advances which constitute Restricted Investments of the Company or its Restricted Subsidiaries or (B) the sale (other than to the Company or a Restricted Subsidiary) of the Capital Interests of an Unrestricted Subsidiary or a distribution from an Unrestricted Subsidiary (other than in each case to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment) or a dividend from an Unrestricted Subsidiary, plus
(4) in the case of the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary or the merger or consolidation of an Unrestricted Subsidiary into the Company or a Restricted Subsidiary or the transfer of assets of an Unrestricted Subsidiary to the Company or a Restricted Subsidiary, the fair market value of the Investment in such Unrestricted Subsidiary (other than an Unrestricted Subsidiary to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment), plus
(5) $141.0 million. The Board of Directors 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 in the Subsidiary so designated will be deemed to be Restricted Payments or Permitted Investments, in the Company’s discretion, at the time of such designation and will reduce the amount available for Restricted Payments or Permitted Investments, as applicable. 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 Payments or Permitted Investments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary.
(b) Section 4.07(a) shall not prohibit:
(i) the payment of any dividend or other distribution or redemption within 60 days after the date of declaration or call for redemption thereof, if at said date of declaration or call for redemption such payment would have complied with the provisions of this Indenture;
(ii) the making of any Restricted Payment in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Subsidiary of the Company) of, Equity Interests of the Company (other than any Disqualified Interests) or from a contribution of capital to the Company; 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 Section 4.07(a)(C)(2);:
(iiii) the defeasance, redemption, repurchase, replacement, extension, renewal, refinancing or retirement or other acquisition of subordinated Indebtedness or Disqualified Interests in exchange for or with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness;
(iv) the declaration, or payment of any dividend or other distribution 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 current or former officer, director, employee, consultant or agent of Company or any of its Restricted Subsidiaries (or Heirs or other permitted transferees thereof) upon death, disability, retirement, severance or termination of employment or service or in connection with a stock option plan or agreement, shareholders agreement, or similar agreement, plan or arrangement, including amendments thereto; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may not exceed: (A) $10.0 million in any calendar year, with unused amounts being available to be used in any later calendar year; provided that such amount in any calendar year may be increased in an amount not to exceed the net cash proceeds from the sale of Equity Interests (other than Disqualified InterestsStock or Designated Preferred Stock) of the Company to any officerCompany, director, employee or agent of including the Company or any Subsidiary of the Company that occurs after the date of this Indenture, to the extent such net cash proceeds have not otherwise been applied to make Restricted Payments pursuant to Section 4.07(a)(C)(2)Existing Convertible Preferred Stock; plus (B) the cash proceeds of key man life insurance policies received by the Company and its Restricted Subsidiaries after the date of this Indenture that are used for the repurchase, redemption or other acquisition or retirement for value owned by the individual (or such individual’s estate) that is the subject of such insurance;
(vi) the repurchase of Equity Interests deemed to occur upon the exercise of options, warrants or other convertible securities to the extent such Equity Interests represent a portion of the exercise price of those options, warrants or other convertible securities and cash payments in lieu of the issuance of fractional shares in connection with the exercise of options, warrants, or other convertible securities;
(vii) the declaration and payment of regular quarterly dividends on the Company’s Equity Interests in accordance with past practice and not to exceed $0.05 per share;
(viii) additional Restricted Payments not to exceed $150.0 million after August 27, 2012;
(ix) the repurchase of the Company’s Equity Interests in an amount not to exceed $50.0 million after August 27, 2012;
(x) distributions or payments of Securitization Fees and purchases of Securitization Assets pursuant to a Securitization Repurchase Obligation in connection with a Qualified Securitization Financing;
(xi) any payments made in connection with the consummation of the transactions on substantially the terms described in the Offering Memorandum;
(xii) the payment of intercompany subordinated debt, the incurrence of which was permitted under Section 4.09(b)(vi);
(xiii) the purchase of fractional shares by the Company upon conversion of any securities of the Company into Capital Interests of the Company;
(xiv) the repurchase, redemption or other acquisition or retirement for value of subordinated Indebtedness or Disqualified Interests pursuant to the provisions similar to those described under Section 4.14 and Section 4.10; provided that all Notes tendered by Holders of the Notes in connection with the related Change of Control Offer or Asset Sale Offer, as applicable, have been repurchased, redeemed or acquired for value in full; and
(xv) payment of dividends on Disqualified Interests of the Company or a Restricted Subsidiary, the issuance of which is permitted by this Indenture.
(c) 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 Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall be determined by an officer of the Company. In the event that a Restricted Payment meets the criteria of more than one of the exceptions described in (i) through (xv) above or is entitled to be made pursuant to the first paragraph of this covenant, the Company may, in its sole discretion, classify, and may later reclassify from time to time, such Restricted Payment or any portion thereof into or among any of such applicable provisions.or
Appears in 2 contracts
Samples: Indenture (Post Holdings, Inc.), Indenture (Post Holdings, Inc.)
Restricted Payments. (a) The Company Issuers shall not, and shall not permit any of its their 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 of the Partnership or any of its Restricted Subsidiaries’ Equity Interests Subsidiaries (including, without limitation, any payment in connection with any merger or consolidation involving the Company Partnership or any of its Restricted Subsidiaries) or to the direct or indirect holders of the Company’s Equity Interests of the Partnership or of any of its Restricted Subsidiaries’ Equity Interests Subsidiaries in their capacity as such (other than (A) dividends or distributions accrued or payable in Equity Interests of the Partnership (other than Disqualified InterestsEquity) of the Company and other than distributions or (B) dividends or distributions payable to the Company Partnership or a Restricted Subsidiary of the CompanyPartnership);.
(ii) except to the extent permitted in clause (iv) below, purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Companyan Issuer) any Equity Interests of the Company Partnership or of any direct or indirect parent of the Company its Restricted Subsidiaries (other than any such Equity Interests owned by the Company Partnership or any of its Restricted Subsidiary of the CompanySubsidiaries);
(iii) except to the extent permitted in clause (iv) below, make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness that is pari passu with or subordinated to the Notes or any Note Guarantee the Guarantees (other than Indebtedness permitted under clause (vi) of the definition of “Permitted Debt”) Notes or the Guarantees), except (a) a payment of interest or principal at the Stated Maturity or thereof, (b) the a purchase, repurchase redemption, acquisition or other acquisition retirement required to be made pursuant to the terms of such Indebtedness (including pursuant to an asset sale or change of control provision) and (c) any such Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case, due within one year of the date of such purchase, repurchase Partnership or other acquisition; orany Restricted Subsidiary owned by the Partnership or a Restricted Subsidiary;
(iv) make any Restricted Investment other than a Permitted Investment or a Permitted Business Investment (all such payments and other actions set forth in clauses (i) through (iv) 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;thereof and either:
(BA) 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 Fixed Charge Coverage Ratio test set forth in Section 4.09(a); and
(C) for the Partnership's four most recent fiscal quarters for which internal financial statements are available is not less than 2.0 to 1.0, such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company Partnership and its Restricted Subsidiaries after August 27, 2012 (excluding during the quarter in which such Restricted Payments permitted by clauses (i) (provided that at the time of declaring such dividend, such dividend was counted as a Restricted Payment) (ii), (iii), (iv), (v), (vi), (vii), (viii), (ix), (x), (xi), (xii), (xiii), (xiv) and (xv) of Section 4.07(b))Payment is made, is less than the sum, without duplication, of
of (1a) 50% Available Cash constituting Cash from Operations as of the Consolidated Net Income of the Company for the period (taken as one accounting period) from April 2, 2012 to the end of the Company’s immediately preceding quarter, plus (b) the aggregate net cash proceeds of any (i) substantially concurrent capital contribution to the Partnership from any Person (other than a Restricted Subsidiary of the Partnership) after the Issue Date, (ii) substantially concurrent issuance and sale after the Issue Date of Equity Interests (other than Disqualified Equity) of the Partnership or from the issuance or sale after the Issue Date of convertible or exchangeable Disqualified Equity or convertible or exchangeable debt securities of the Partnership that have been converted into or exchanged for such Equity Interests (other than Disqualified Equity), (iii) to the extent that any Restricted Investment that was made after the Issue Date is sold for cash or Cash Equivalents or otherwise liquidated or repaid for cash or Cash Equivalents, the lesser of the refund of capital or similar payment made in other Cash Equivalents with respect to such Restricted Investment (less the cost of such disposition, if any) and the initial amount of such Restricted Investment (other than to a Restricted Subsidiary of the Partnership), plus (c) the net reduction in Investments in Restricted Investments resulting from dividends, repayments of loans or advances, or other transfers of assets in each case to the Partnership or any of its Restricted Subsidiaries from any Person (including, without limitation, Unrestricted Subsidiaries) or from redesignations of Unrestricted Subsidiaries as Restricted Subsidiaries to the extent such amounts have not been included in Available Cash constituting Cash from Operations for any quarter commencing on or after the Issue Date (items (b) and (c) being referred to as "Incremental Funds"), minus (d) the aggregate amount of Incremental Funds previously expended pursuant to this clause (A) or clause (B) below; or
(B) if the Fixed Charge Coverage Ratio for the Partnership's four most recently ended recent fiscal quarter quarters for which internal financial statements are available at the time of is less than 2.0 to 1.0, such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit), plus
(2) 100% of the aggregate net proceeds, including the fair market value of any property or Capital Interests, received by the Company since August 27, 2012 as a contribution to its equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified Interests) or from the issue or sale of Disqualified Interests or debt securities of the Company that have been converted into such Equity Interests (other than Equity Interests (or Disqualified Interests or convertible debt securities) sold to a Subsidiary of the Company)Payment, together with the aggregate cash and Cash Equivalents received amount of all other Restricted Payments made by the Company or any of its Restricted Subsidiaries at the time of such conversion or exchange plus the amount by which Indebtedness of the Company Partnership and its Restricted Subsidiaries during the quarter in which such Restricted Payment is reduced upon made, is less than the conversion or exchange subsequent sum, without duplication, of (a) $60.0 million less the aggregate amount of all Restricted Payments made by the Partnership and its Restricted Subsidiaries pursuant to August 27, 2012 of any Indebtedness or Disqualified Interests which are convertible into or exchangeable for Qualified Capital Interests this clause (B)(a) during the period ending on the last day of the Company or any of its Restricted Subsidiaries, plus
(3) 100% fiscal quarter of the amount receivedPartnership immediately preceding the date of such Restricted Payment and beginning on the Issue Date, including plus (b) Incremental Funds to the fair market value of any property received after August 27, 2012 by means of extent not previously expended pursuant to this clause (B) or clause (A) the sale or other disposition (other than to the Company or a Restricted Subsidiary) of Restricted Investments made by the Company or its Restricted Subsidiaries and repurchases and redemptions of such Restricted Investments from the Company or its Restricted Subsidiaries and repayments of loans or advances which constitute Restricted Investments of the Company or its Restricted Subsidiaries or (B) the sale (other than to the Company or a Restricted Subsidiary) of the Capital Interests of an Unrestricted Subsidiary or a distribution from an Unrestricted Subsidiary (other than in each case to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment) or a dividend from an Unrestricted Subsidiary, plus
(4) in the case of the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary or the merger or consolidation of an Unrestricted Subsidiary into the Company or a Restricted Subsidiary or the transfer of assets of an Unrestricted Subsidiary to the Company or a Restricted Subsidiary, the fair market value of the Investment in such Unrestricted Subsidiary (other than an Unrestricted Subsidiary to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment), plus
(5) $141.0 million. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Defaultabove. For purposes of making such determinationclauses (A) and (B) above, all outstanding Investments by the Company term "substantially concurrent" means that either (x) the offering was consummated within 120 days of the date of determination or (y) the offering was consummated within 24 months of the date of determination and its Restricted Subsidiaries the proceeds therefrom were used for the purposes expressly stated in the Subsidiary so designated will documents related thereto and may be deemed traced to be Restricted Payments such use by segregating, separating or Permitted Investments, in otherwise specifically identifying the Company’s discretion, at the time movement of such designation and will reduce the amount available for Restricted Payments or Permitted Investments, as applicable. 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 Payments or Permitted Investments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiaryproceeds.
(b) So long as no Default has occurred and is continuing or would be caused thereby, the preceding provisions of this Section 4.07(a) 4.08 shall not prohibit:
(i) the payment by the Partnership or any of its Restricted Subsidiaries of any dividend or other distribution or redemption dividend within 60 days after the date of declaration or call for redemption thereof, if at said date of declaration or call for redemption such payment would have complied with the provisions of this Indenture;
(ii) the making redemption, repurchase, retirement, defeasance or other acquisition of any pari passu or subordinated Indebtedness of the Partnership or any of its Restricted Payment Subsidiaries or of any Equity Interests of the Partnership or any of its Restricted Subsidiaries in exchange for, or out of the net cash proceeds of the of, a substantially concurrent (a) capital contribution to the Partnership or such Restricted Subsidiary from any Person (other than the Partnership or another Restricted Subsidiary) or (b) sale (a sale will be deemed substantially concurrent if such redemption, repurchase, retirement, defeasance or acquisition occurs not more than 120 days after such sale) (other than to a Restricted Subsidiary of the CompanyPartnership) of, of (i) Equity Interests of the Company (other than any Disqualified InterestsEquity) of the Partnership or from a contribution of capital such Restricted Subsidiary or (ii) Indebtedness that is subordinated to the CompanyNotes or the Guarantees, provided that such new subordinated Indebtedness with respect to the redemption, repurchase, retirement, defeasance or other acquisition of pari passu or subordinated Indebtedness (W) is subordinated to the same extent as such refinanced subordinated Indebtedness, (X) has a Weighted Average Life to Maturity of at least the remaining Weighted Average Life to Maturity of the refinanced subordinated Indebtedness, (Y) is for the same principal amount as either such refinanced subordinated Indebtedness plus original issue discount to the extent not reflected therein or the redemption or purchase price of such Equity Interests (plus reasonable expenses of refinancing and any premiums paid on such refinanced subordinated Indebtedness) and (Z) is incurred by the Partnership or the Restricted Subsidiary that is the obligor on the Indebtedness so refinanced or the issuer of the Equity Interests so redeemed, repurchased or retired; provided provided, however, that the amount of any such net cash proceeds that are utilized for any such redemption, repurchase, retirement, defeasance repurchase or other acquisition or retirement shall be excluded or deducted from Section 4.07(a)(C)(2)the calculation of Available Cash and Incremental Funds;
(iii) the defeasance, redemption, repurchase, replacement, extension, renewal, refinancing or retirement repurchase or other acquisition of pari passu or subordinated Indebtedness of the Partnership or Disqualified Interests in exchange for or any Restricted Subsidiary with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness;
(iv) the declaration, or payment of any distribution or dividend or other distribution by a Restricted Subsidiary of to the Company Partnership or to the holders of its common the Equity Interests (other than Disqualified Equity) of such Restricted Subsidiary 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 current or former officer, director, employee, consultant or agent of Company Partnership or any of its Restricted Subsidiaries (held by any member of the General Partner's or Heirs the Partnership's or other permitted transferees thereof) upon death, disability, retirement, severance any Restricted Subsidiary's management pursuant to any management equity subscription agreement or termination of employment stock option agreement or service to satisfy obligations under 63 any Equity Interests appreciation rights or in connection with a stock option plan or agreement, shareholders agreement, or similar agreement, plan or arrangement, including amendments thereto; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may shall not exceed: (A) exceed $10.0 5.0 million in any calendar year, with unused amounts being available 12-month period; and
(vi) any payment by the Partnership pursuant to be used in any later calendar year; provided that such amount in any calendar year may be increased in an amount not to exceed the net cash proceeds from the sale of Equity Interests (other than Disqualified Interestssection 3.1(b) of the Company Management Agreement to any officercompensate for certain tax liabilities resulting from certain allocated income. In computing the amount of Restricted Payments made for purposes of Section 4.08(a), director, employee Restricted Payments made under clauses (i) (but only if the declaration of such dividend or agent of the Company or any Subsidiary of the Company that occurs after the date of this Indentureother distribution has not been counted in a prior period) and, to the extent such net cash proceeds have not otherwise been applied of amounts paid to make holders other than the Partnership or any of its Restricted Subsidiaries, (iv) of this Section 4.08(b) shall be included, and Restricted Payments pursuant to Section 4.07(a)(C)(2made under clauses (ii); plus , (Biii), (v) the cash proceeds of key man life insurance policies received by the Company and its Restricted Subsidiaries after the date of this Indenture that are used for the repurchase, redemption or other acquisition or retirement for value owned by the individual (or such individual’s estate) that is the subject of such insurance;
(vi) the repurchase of Equity Interests deemed to occur upon the exercise of optionsand, warrants or other convertible securities except to the extent such Equity Interests represent a portion noted above, (iv) of the exercise price of those options, warrants or other convertible securities and cash payments in lieu of the issuance of fractional shares in connection with the exercise of options, warrants, or other convertible securities;
(viithis Section 4.08(b) the declaration and payment of regular quarterly dividends on the Company’s Equity Interests in accordance with past practice and shall not to exceed $0.05 per share;
(viii) additional Restricted Payments not to exceed $150.0 million after August 27, 2012;
(ix) the repurchase of the Company’s Equity Interests in an amount not to exceed $50.0 million after August 27, 2012;
(x) distributions or payments of Securitization Fees and purchases of Securitization Assets pursuant to a Securitization Repurchase Obligation in connection with a Qualified Securitization Financing;
(xi) any payments made in connection with the consummation of the transactions on substantially the terms described in the Offering Memorandum;
(xii) the payment of intercompany subordinated debt, the incurrence of which was permitted under Section 4.09(b)(vi);
(xiii) the purchase of fractional shares by the Company upon conversion of any securities of the Company into Capital Interests of the Company;
(xiv) the repurchase, redemption or other acquisition or retirement for value of subordinated Indebtedness or Disqualified Interests pursuant to the provisions similar to those described under Section 4.14 and Section 4.10; provided that all Notes tendered by Holders of the Notes in connection with the related Change of Control Offer or Asset Sale Offer, as applicable, have been repurchased, redeemed or acquired for value in full; and
(xv) payment of dividends on Disqualified Interests of the Company or a Restricted Subsidiary, the issuance of which is permitted by this Indenture.
(c) be included. 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 Partnership 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 covenant shall be determined by an officer the Board of Directors of the Company. In the event that a Restricted Payment meets the criteria of more than one of the exceptions described in (i) through (xv) above or is entitled to General Partner whose resolution with respect thereto shall be made pursuant delivered to the first paragraph of this covenant, the Company may, in its sole discretion, classify, and may later reclassify from time to time, such Restricted Payment or any portion thereof into or among any of such applicable provisionsTrustee.
Appears in 2 contracts
Samples: Indenture (El Paso Energy Partners Lp), Indenture (First Reserve Gas LLC)
Restricted Payments. (a) 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 (A) dividends dividends, payments or distributions accrued or payable in Equity Interests (other than Disqualified InterestsStock) of the Company or (B) dividends dividends, payments or distributions 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 Restricted Subsidiary of the Company (held by Persons other than any such Equity Interests owned by the Company or any of its Restricted Subsidiary of the Company)Subsidiaries;
(iii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness that is subordinated to the Notes or any the Note Guarantee (other than Indebtedness permitted under clause (vi) of the definition of “Permitted Debt”) Guarantees, except (ai) a payment of interest thereon or principal at the Stated Maturity thereof or (bii) the purchase, repurchase redemption, defeasance or other acquisition or retirement of any such Indebtedness in anticipation of satisfying a sinking fund obligation, obligation or payment of principal installment or final maturityat the Stated Maturity thereof, in each case, due within one year of the date of such purchase, repurchase redemption, defeasance or other acquisitionacquisition or retirement; or
(iv) make any Restricted Investment Investment; (all such payments and other actions set forth in clauses (iSection 4.07(a)(i) through (iv) 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 periodthereto, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Consolidated Leverage Ratio test set forth in Section 4.09(a); ) and
(C) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after August 27, 2012 the date of this Indenture (excluding Restricted Payments permitted by clauses (i) (provided that at the time of declaring such dividend, such dividend was counted as a Restricted Payment) (ii), (iii), (iv), (v), (vi), (vii), (viii), (ix), (x), ) or (xi), (xii), (xiii), (xiv) and (xv) of Section 4.07(b)), is less than the sum, without duplication, of:
(1) 50% of an amount equal to the Company’s Consolidated Net Income of the Company Cash Flow for the period (taken as one accounting period) from April 2July 1, 2012 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 the “Basket Period”) less the product of (x) 1.4 and (y) the Company’s Fixed Charges for such period is a deficit, less 100% of such deficit), the Basket Period; plus
(2) 100% of the aggregate net proceeds, including the fair market value of any property or Capital Interests, cash proceeds received by the Company since August 27, 2012 the 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 InterestsStock) of the Company or from the issue or sale of Disqualified Interests Stock or debt securities of the Company that have been converted into or exchanged for such Equity Interests (other than Equity Interests (or Disqualified Interests Stock or convertible debt securities) sold to a Restricted Subsidiary of the Company), together with the aggregate cash and Cash Equivalents received by the Company or any of its Restricted Subsidiaries at the time of such conversion or exchange plus the amount by which Indebtedness of the Company and its Restricted Subsidiaries is reduced upon the conversion or exchange subsequent to August 27, 2012 of any Indebtedness or Disqualified Interests which are convertible into or exchangeable for Qualified Capital Interests of the Company or any of its Restricted Subsidiaries, ; plus
(3) 100% of the amount received, including the fair market value of any property received after August 27, 2012 by means of (A) the sale or other disposition (other than with respect to the Company or a Restricted Subsidiary) of Restricted Investments made by the Company or its Restricted Subsidiaries and repurchases and redemptions of such Restricted Investments from the Company or its Restricted Subsidiaries and repayments of loans or advances which constitute Restricted Investments of the Company or its Restricted Subsidiaries or (B) the sale (other than to the Company or a Restricted Subsidiary) of the Capital Interests of an Unrestricted Subsidiary or a distribution from an Unrestricted Subsidiary (other than in each case to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment) or a dividend from an Unrestricted Subsidiary, plus
(4) in the case of the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary or the merger or consolidation of an Unrestricted Subsidiary into the Company or a Restricted Subsidiary or the transfer of assets of an Unrestricted Subsidiary to the Company or a Restricted Subsidiary, the fair market value of the Investment in such Unrestricted Subsidiary (other than an Unrestricted Subsidiary to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment), plus
(5) $141.0 million. The Board of Directors 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 in after the Subsidiary so designated will be deemed to be Restricted Payments or Permitted Investmentsdate of this Indenture, in the Company’s discretion, at the time of such designation and will reduce the amount available for Restricted Payments or Permitted Investments, as applicable. All such outstanding Investments will be deemed to constitute Investments in an amount equal to the fair market value aggregate net cash proceeds from the sale of such Restricted Investment, except to the extent that any such proceeds are included in the calculation of Consolidated Cash Flow; plus
(4) to the extent that any Unrestricted Subsidiary that was designated as such after the date of this Indenture is redesignated as a Restricted Subsidiary of the Company, the Fair Market Value (as determined, if such Subsidiary is not an Insignificant Subsidiary, by the Board of Directors) of the Company’s Investments at in such Subsidiary as of the time date of such designation. Such designation will only be permitted if such redesignation, not to exceed the amount of Restricted Payments Investments previously made by the Company or Permitted Investments would be permitted at such time and if such any Restricted Subsidiary otherwise meets of the definition of an Company in such Unrestricted Subsidiary.
(b) Section 4.07(a) shall not prohibit:
(i) the payment of any dividend or other distribution or redemption within 60 days after the date of declaration or call for redemption thereof, if at said date of declaration or call for redemption such payment would have complied with the provisions of this Indenture;
(ii) the making redemption, repurchase, retirement, defeasance or other acquisition of any Indebtedness of the Company, Co-Issuer Corp. or any Guarantor that is subordinated to the Notes or Note Guarantees or of any Equity Interests of the Company or any Restricted Payment Subsidiary of the Company in exchange for, or out of the net cash proceeds of a contribution to the common equity of the Company or a substantially concurrent sale (other than to a Restricted Subsidiary of the Company) of, Equity Interests of the Company (other than any Disqualified InterestsStock) or from a contribution of capital to the Company; 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 Section 4.07(a)(C)(2);
(iii) the defeasance, redemption, repurchase, replacementretirement, extension, renewal, refinancing or retirement defeasance or other acquisition of Indebtedness of the Company, Co-Issuer Corp. or any Guarantor that is subordinated Indebtedness to the Notes or Disqualified Interests in exchange for or Note Guarantees with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness;
(iv) the declarationredemption, repurchase, retirement, conversion, exchange or other acquisition of Preferred Stock of any Restricted Subsidiary of the Company in exchange for or out of the net cash proceeds of a substantially concurrent issuance or sale of Equity Interests (other than Disqualified Stock) of the Restricted Subsidiary of the Company that issued the Preferred Stock being redeemed, repurchased, retired or otherwise acquired; provided that the liquidation or face value of such Equity Interests proposed to be issued does not exceed the liquidation or face value of the Preferred Stock being redeemed, repurchased, retired, converted, exchanged or otherwise acquired (plus all accrued dividends thereon and the amount of any reasonable premium and other amounts necessary to accomplish such refinancing and such reasonable fees and expenses incurred in connection therewith);
(v) the payment of any dividend or other distribution by a Restricted Subsidiary of the Company to the holders of its common Equity Interests on a pro rata basis;
(vvi) the repurchaseInvestments acquired as a capital contribution to, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Subsidiary of the Company held by any current or former officer, director, employee, consultant or agent of Company or any of its Restricted Subsidiaries (or Heirs or other permitted transferees thereof) upon death, disability, retirement, severance or termination of employment or service or in connection with a stock option plan or agreement, shareholders agreementexchange for, or similar agreement, plan or arrangement, including amendments thereto; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may not exceed: (A) $10.0 million in any calendar year, with unused amounts being available to be used in any later calendar year; provided that such amount in any calendar year may be increased in an amount not to exceed out of the net cash proceeds from the sale of a substantially concurrent offering of, Equity Interests (other than Disqualified InterestsStock) of the Company to Company; provided that the amount of any officer, director, employee or agent of the Company or any Subsidiary of the Company that occurs after the date of this Indenture, to the extent such net cash proceeds have not otherwise been applied to make Restricted Payments pursuant to that are utilized for any such acquisition or exchange shall be excluded from Section 4.07(a)(C)(2); plus (B) the cash proceeds of key man life insurance policies received by the Company and its Restricted Subsidiaries after the date of this Indenture that are used for the repurchase, redemption or other acquisition or retirement for value owned by the individual (or such individual’s estate) that is the subject of such insurance;
(vi) the repurchase of Equity Interests deemed to occur upon the exercise of options, warrants or other convertible securities to the extent such Equity Interests represent a portion of the exercise price of those options, warrants or other convertible securities and cash payments in lieu of the issuance of fractional shares in connection with the exercise of options, warrants, or other convertible securities;
(vii) the declaration and payment of regular quarterly dividends or distributions on AMC Preferred Stock (and any Preferred Stock issued in exchange therefor or issued to redeem, repurchase, retire or otherwise acquire AMC Preferred Stock, in each case, pursuant to Section 4.07(b)(iv) above) solely in the Company’s form of additional Equity Interests in accordance with past practice and not to exceed $0.05 per share(other than Disqualified Stock);
(viii) additional Restricted Payments not the repurchase of Capital Stock deemed to exceed $150.0 million after August 27, 2012occur upon the exercise of options or warrants to the extent that such Capital Stock represents all or a portion of the exercise price thereof;
(ix) the repurchase so long as no Default has occurred and is continuing or would be caused thereby, payments to any direct or indirect parent of the Company’s Equity Interests Company to provide for operating costs and expenses and capital expenditures of such direct or indirect parent, including, without limitation, in an respect of directors’ fees and expenses, administrative, legal and accounting services and costs and expenses with respect to filings with the Commission; provided that the aggregate amount of such dividends and other distributions, together with all other direct or indirect payments by the Company or any of its Restricted Subsidiaries on account of such costs and expenses, in any calendar year shall not to exceed $50.0 20.0 million after August 27for calendar years 2004, 20122005 and 2006 and $15.0 million for each calendar year thereafter;
(x) so long as no Default has occurred and is continuing or would be caused thereby, the payment of dividends or other distributions to any direct or payments indirect parent of Securitization Fees the Company; provided that the aggregate amount of such dividends and purchases other distributions shall not, since the date of Securitization Assets pursuant to a Securitization Repurchase Obligation in connection with a Qualified Securitization Financing;this Indenture, exceed $325.0 million; or
(xi) any payments made in connection with the consummation distribution of the transactions on substantially proceeds of the terms issuance of the Notes and borrowings under the Credit Agreement to the extent described in the Offering Memorandum;
(xii) Memorandum under the payment section entitled “Use of intercompany subordinated debt, the incurrence of which was permitted under Section 4.09(b)(vi);
(xiii) the purchase of fractional shares by the Company upon conversion of any securities of the Company into Capital Interests of the Company;
(xiv) the repurchase, redemption or other acquisition or retirement for value of subordinated Indebtedness or Disqualified Interests pursuant to the provisions similar to those described under Section 4.14 and Section 4.10; provided that all Notes tendered by Holders of the Notes in connection with the related Change of Control Offer or Asset Sale Offer, as applicable, have been repurchased, redeemed or acquired for value in full; and
(xv) payment of dividends on Disqualified Interests of the Company or a Restricted Subsidiary, the issuance of which is permitted by this IndentureProceeds.”
(c) The amount of all Restricted Payments (other than cash) shall be the fair market value Fair Market Value (as determined by the Board of Directors) on the date of the Restricted Payment of the asset(s) assets or securities proposed to be transferred or issued to or by the Company or such 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 (other than cash) with a Fair Market Value (as determined by the Board of Directors) in excess of $25.0 million, 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.
(d) If the Company or a Restricted Subsidiary of the Company makes a Restricted Payment that, at the time of the making of such Restricted Payment, would, in the Company’s good faith determination, be permitted under the requirements of this Section 4.07, such Restricted Payment shall be determined by an officer of deemed to have been made in compliance with this Section 4.07 notwithstanding any subsequent adjustments made in good faith to the Company. In ’s financial statements for any period affecting the event that a Restricted Payment meets the criteria of more than one of the exceptions described in (i) through (xv) calculations set forth above or is entitled with respect to be made pursuant to the first paragraph of this covenant, the Company may, in its sole discretion, classify, and may later reclassify from time to time, such Restricted Payment or any portion thereof into or among any of such applicable provisionsPayment.
Appears in 2 contracts
Samples: Indenture (Cablevision Systems Corp /Ny), Indenture (Cablevision Systems Corp /Ny)
Restricted Payments. (a) The Company shall Issuer 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 CompanyIssuer’s or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any payment in connection with any merger merger, amalgamation or consolidation involving the Company Issuer or any of its Restricted Subsidiaries) or to the direct or indirect holders of the CompanyIssuer’s or any of its Restricted Subsidiaries’ Equity Interests in their capacity as such (other than (A) dividends or distributions accrued or payable in Equity Interests Capital Stock (other than Disqualified InterestsStock) of the Company Issuer, or in warrants, options or other rights to acquire Capital Stock (other than Disqualified Stock) of the Issuer and (B) dividends or distributions payable to the Company Issuer or a any of its Restricted Subsidiary of the CompanySubsidiaries);
(ii) purchase, retract, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger merger, amalgamation or consolidation involving the Company) Issuer), in whole or in part, any Equity Interests of the Company or any direct or indirect parent of the Company Issuer (other than any such Equity Interests owned by the Company Issuer or any a Restricted Subsidiary of the CompanySubsidiary);
(iii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness that is subordinated to the Notes or any Note Guarantee Subordinated Indebtedness, except for (other than Indebtedness permitted under clause (vi) of the definition of “Permitted Debt”) except (aA) a payment of interest or principal at the Stated Maturity thereof or of principal not earlier than one year prior to the Stated Maturity thereof and (bB) the purchase, repurchase or other acquisition of any such Indebtedness in anticipation owed to the Issuer or any of satisfying a sinking fund obligation, principal installment or final maturity, in each case, due within one year of the date of such purchase, repurchase or other acquisitionits Restricted Subsidiaries; or
(iv) make any Restricted Investment (all such payments and other actions set forth in clauses (i) through (iv) above being collectively referred to as “Restricted Payments”), unlessunless if, 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 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 be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.09(a5.11(a); and
(C3) such Restricted Payment, together with the aggregate amount of (i) all other Restricted Payments made by the Company Issuer and its Restricted Subsidiaries after August 27, 2012 (excluding Restricted Payments permitted by clauses (i) (provided that at the time of declaring such dividend, such dividend was counted as a Restricted Payment) (ii), (iii), (iv), (v), (vi), (vii), (viii), (ix), (x), (xi), (xii), (xiii), (xivIssue Date pursuant to this Section 5.10(a) and (xvii) of Section 4.07(b)all Restricted Payments made by the Issuer and its Restricted Subsidiaries after the Issue Date pursuant to Sections 5.10(b)(i), 5.10(b)(vi), 5.10(b)(vii) and 5.10(b)(viii) is less than the sum, without duplication, of:
(1A) 50% of the Consolidated Net Income of the Company Issuer for the period (taken as one accounting period) from April 2June 30, 2012 2020 to the end of the CompanyIssuer’s most recently ended fiscal quarter for which internal annual or quarterly financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficitloss, less 100% of such deficitloss), ; plus
(2B) 100% of the aggregate net proceeds, including the fair market value of any property or Capital Interests, Net Cash Proceeds received by the Company Issuer since August 27, 2012 the Issue Date (i) as a contribution to its common equity capital or capital, (ii) from the issue or sale of Equity Interests of the Company Capital Stock (other than Disqualified InterestsStock) or of the Issuer, (iii) from the issue or sale of warrants, options or other rights to acquire Capital Stock (other than Disqualified Interests Stock) of the Issuer or (iv) from the issue or sale of convertible or exchangeable Disqualified Stock of the Issuer or convertible or exchangeable debt securities of the Company that have Issuer, in each case to the extent such has been converted into such Equity Interests or exchanged for Capital Stock (other than Equity Interests Disqualified Stock) of the Issuer or warrants, options or other rights to acquire Capital Stock (other than Disqualified Stock) of the Issuer (in the case of each of the foregoing subclauses (i) through (iv), other than a contribution from, or Capital Stock, warrants, options or other rights, Disqualified Interests Stock or convertible debt securities) securities sold to to, a Subsidiary of the CompanyIssuer); plus
(C) to the extent that any Restricted Investment that was made after the Issue Date is (i) sold for cash or otherwise cancelled, liquidated or repaid for cash or (ii) in the case of a Restricted Investment constituting a guarantee, released, the initial amount of such Restricted Investment (or, if less, in the case of a sale, cancellation, liquidation or repayment for cash described in the foregoing subclause (i), together with the aggregate amount of cash received upon such sale, cancellation, liquidation or repayment), in each case, to the extent that any such payments or proceeds are not already included in Consolidated Net Income of the Issuer for the applicable period and Cash Equivalents received to the extent such amounts have not increased the amount available under Section 5.10(b)(xii); provided, for certainty, that any amount that would otherwise be included in this clause (C) as a result of the release of a guarantee due to the payment thereunder by the Company Issuer or any of its Restricted Subsidiaries at shall be reduced by the time aggregate amount of such conversion or exchange plus the amount by which Indebtedness of the Company and its Restricted Subsidiaries is reduced upon the conversion or exchange subsequent to August 27, 2012 of any Indebtedness or Disqualified Interests which are convertible into or exchangeable for Qualified Capital Interests of the Company or any of its Restricted Subsidiaries, payments; plus
(3D) 100% of the amount received, including the fair market value of any property received after August 27, 2012 by means of (A) the sale or other disposition (other than to the Company or upon a Restricted Subsidiary) of Restricted Investments made by the Company or its Restricted Subsidiaries and repurchases and redemptions of such Restricted Investments from the Company or its Restricted Subsidiaries and repayments of loans or advances which constitute Restricted Investments of the Company or its Restricted Subsidiaries or (B) the sale (other than to the Company or a Restricted Subsidiary) of the Capital Interests of an Unrestricted Subsidiary or a distribution from an Unrestricted Subsidiary (other than in each case to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment) or a dividend from an Unrestricted Subsidiary, plus
(4) in the case of the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary or the merger or consolidation of (other than a Xxxx RTO Entity designated as an Unrestricted Subsidiary into the Company or a Restricted Subsidiary or the transfer of assets of an Unrestricted Subsidiary pursuant to the Company or a Restricted SubsidiarySection 5.7(c)), the fair market value lesser of
(i) the Fair Market Value of the Investment in such Unrestricted Subsidiary (other than an Unrestricted Subsidiary to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment), plus
(5) $141.0 million. The Board of Directors 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 Issuer’s and its Restricted Subsidiaries Subsidiaries’ Investments in the such Subsidiary so designated will be deemed to be Restricted Payments or Permitted Investments, in the Company’s discretion, as at the time date of such designation redesignation and will reduce (ii) the amount available for Restricted Payments or Permitted Investments, as applicable. All such outstanding Investments will be deemed to constitute Investments in an amount equal to the fair market value Fair Market Value of such Investments at the time of date on which such designation. Such designation will only be permitted if such Restricted Payments or Permitted Investments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of was originally designated as an Unrestricted Subsidiary; plus
(E) 100% of any dividends or distributions received in cash by the Issuer or any of its Restricted Subsidiaries from any Unrestricted Subsidiary after the Issue Date, to the extent not already included in Consolidated Net Income of the Issuer for the applicable period.
(b) Section 4.07(a5.10(a) shall will not prohibit:
(i) the payment by the Issuer or any Restricted Subsidiary of any dividend or other distribution distribution, or the consummation of any irrevocable redemption of any Subordinated Indebtedness or Equity Interest, within 60 days after the date of the declaration of the dividend or call for redemption thereofdistribution or the giving of the notice of redemption, as the case may be, if at said the date of declaration or call for notice the dividend, distribution or redemption such payment would have complied with the provisions of been permitted by this Indenture;
(ii) the making of any Restricted Payment in exchange for, or out of the net cash proceeds Net Cash Proceeds of the substantially concurrent sale of (other than to a Subsidiary of the Company) ofIssuer), Equity Interests of the Company Capital Stock (other than any Disqualified InterestsStock) of the Issuer or warrants, options or other rights to acquire Capital Stock (other than Disqualified Stock) of the Issuer or from a the substantially concurrent contribution of capital to the Companycommon equity capital of the Issuer; provided that the amount of any such net cash proceeds Net Cash Proceeds that are utilized for any such redemption, repurchase, retirement, defeasance or other acquisition shall Restricted Payment will be excluded from the calculation in Section 4.07(a)(C)(25.10(a)(3)(B);
(iii) the defeasance, redemption, repurchase, replacement, extension, renewal, refinancing or retirement or other acquisition of subordinated Subordinated Indebtedness of the Issuer or Disqualified Interests in exchange for or any Restricted Subsidiary with the net cash proceeds from an a substantially concurrent incurrence of of, or in exchange for, any Permitted Refinancing Indebtedness;
(iv) the declaration, or declaration and payment of any dividend or other distribution by a Restricted Subsidiary of the Company that is not a Wholly Owned Restricted Subsidiary to the holders of its common Equity Interests Capital Stock on a pro rata basis;
(v) the purchase, repurchase, redemption or other acquisition or retirement for value of Equity Interests deemed to occur upon the exercise or exchange of stock options, warrants or other convertible securities if the Equity Interests represent a portion of the exercise or exchange price thereof, and repurchases or other acquisitions or retirement for value of Equity Interests deemed to occur upon the withholding of a portion of the Equity Interests granted or awarded to an employee to pay for taxes payable by such employee either upon such grant or award or in connection with any such exercise or exchange of stock options, warrants or other convertible securities;
(vi) the payment, purchase, repurchase, redemption, defeasance, acquisition or other retirement for value of Subordinated Indebtedness or Disqualified Stock (A) in the event of a change of control at a purchase or redemption price no greater than 101% of the principal amount or liquidation preference thereof, plus any accrued and unpaid interest or dividends thereon or (B) in the event of an asset sale at a purchase or redemption price no greater than 100% of the principal amount or liquidation preference thereof, plus any accrued and unpaid interest or dividends thereon, in each case, in accordance with provisions similar to those described under Section 5.14 or Section 5.15, as applicable; provided, however, that prior to or simultaneously with such payment, purchase, repurchase, redemption, defeasance, acquisition or retirement, the Issuer has made the Change of Control Offer or Asset Sale Offer, if required, with respect to the Notes and has repurchased all Notes validly tendered for payment and not withdrawn in connection with such Change of Control Offer or Asset Sale Offer;
(vii) the purchase, retraction, redemption or other acquisition or retirement of any Equity Interests of the Company Issuer or any Subsidiary of the Company its Restricted Subsidiaries held by any current or former officer, director, employeeemployee or consultant (or their transferees (including by law or pursuant to any court order), consultant estates, trusts, spouses, children or agent beneficiaries) of Company the Issuer or any of its Restricted Subsidiaries (or Heirs pursuant to any equity subscription agreement, shareholder agreement, employment agreement, consulting agreement, stock option plan, equity incentive or other permitted transferees thereofplan or similar agreement, in an aggregate amount not to exceed $2.0 million in each calendar year (with unused amounts in any calendar year being carried over to the immediately succeeding calendar year but not to any subsequent calendar year);
(viii) upon deaththe declaration and payment of regularly scheduled or accrued dividends to holders of any class or series of Disqualified Stock of the Issuer or any of its Restricted Subsidiaries issued after the Issue Date in accordance with Section 5.11, disabilityprovided that such dividends are included in Fixed Charges of the Issuer as accrued;
(ix) the purchase, retirementredemption, severance acquisition, cancellation or termination other retirement for nominal value per right of employment any rights granted to all the holders of Capital Stock of the Issuer pursuant to any shareholders’ rights plan adopted for the purpose of protecting shareholders from unfair takeover tactics;
(x) payments to dissenting shareholders (A) pursuant to applicable law or service (B) in connection with the settlement or other satisfaction of legal claims made pursuant to or in connection with a stock option plan consolidation, merger or agreement, shareholders agreement, or similar agreement, plan or arrangement, including amendments thereto; provided transfer of assets in connection with a transaction that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may is not exceed: (A) $10.0 million in any calendar year, with unused amounts being available to be used in any later calendar year; provided that such amount in any calendar year may be increased in an amount not to exceed the net cash proceeds from the sale of Equity Interests (other than Disqualified Interests) of the Company to any officer, director, employee or agent of the Company or any Subsidiary of the Company that occurs after the date of prohibited by this Indenture, to the extent such net cash proceeds have not otherwise been applied to make Restricted Payments pursuant to Section 4.07(a)(C)(2); plus (B) the cash proceeds of key man life insurance policies received by the Company and its Restricted Subsidiaries after the date of this Indenture that are used for the repurchase, redemption or other acquisition or retirement for value owned by the individual (or such individual’s estate) that is the subject of such insurance;
(vixi) the repurchase making of Equity Interests deemed to occur upon the exercise of options, warrants or other convertible securities to the extent such Equity Interests represent a portion of the exercise price of those options, warrants or other convertible securities and cash payments in lieu of the issuance by the Issuer of fractional shares in connection with stock dividends, splits or business combinations or the exercise of options, warrants, options or other securities convertible or exchangeable for Equity Interests that are not derivative securities;; and
(vii) the declaration and payment of regular quarterly dividends on the Company’s Equity Interests in accordance with past practice and not to exceed $0.05 per share;
(viiixii) additional Restricted Payments not to exceed $150.0 million after August 27, 2012;
(ix) the repurchase of the Company’s Equity Interests in an aggregate amount not to exceed $50.0 million after August 27which, 2012;
(x) distributions or payments of Securitization Fees and purchases of Securitization Assets when taken together with all other Restricted Payments made pursuant to a Securitization Repurchase Obligation in connection with a Qualified Securitization Financing;
this Section 5.10(b)(xii) that remain outstanding, do not exceed the greater of (xiA) $10.0 million and (B) 5% of Consolidated Net Tangible Assets; provided, however, that at the time of, and after giving effect to, any payments Restricted Payment made in connection with the consummation reliance on Sections 5.10(b)(viii) or 5.10(b)(xii) no Default or Event of the transactions on substantially the terms described in the Offering Memorandum;
(xii) the payment of intercompany subordinated debt, the incurrence of which was permitted under Section 4.09(b)(vi);
(xiii) the purchase of fractional shares by the Company upon conversion of any securities of the Company into Capital Interests of the Company;
(xiv) the repurchase, redemption Default shall have occurred and be continuing or other acquisition or retirement for value of subordinated Indebtedness or Disqualified Interests pursuant to the provisions similar to those described under Section 4.14 and Section 4.10; provided that all Notes tendered by Holders of the Notes in connection with the related Change of Control Offer or Asset Sale Offer, would occur as applicable, have been repurchased, redeemed or acquired for value in full; and
(xv) payment of dividends on Disqualified Interests of the Company or a Restricted Subsidiary, the issuance of which is permitted by this Indentureconsequence thereof.
(c) For purposes of determining compliance with this covenant, if a Restricted Payment or Permitted Investment (or portion thereof) meets the criteria of more than one of the types of Restricted Payments described in 5.10(b)(i) through 5.10(b)(xii) above or one or more clauses of the definition of Permitted Investments or pursuant to Section 5.10(a) (or portions of any of the foregoing), the Issuer, in its sole discretion, may order and classify, and subsequently reorder and reclassify (based on circumstances existing at the time of such reorder or reclassification), such Restricted Payment (or portion thereof) in any manner that complies with this covenant.
(d) The amount of all each Restricted Payments Payment (other than cash) shall will be the fair market value Fair Market Value on the date of the such Restricted Payment of the asset(s) assets or securities proposed to be transferred or issued by the Company Issuer or such Restricted Subsidiary, as the case may be, pursuant to the such Restricted Payment. The fair market value of any non-cash Restricted Payment shall be determined by an officer of the Company. In the event that a Restricted Payment meets the criteria of more than one of the exceptions described in (i) through (xv) above or is entitled to be made pursuant to the first paragraph of this covenant, the Company may, in its sole discretion, classify, and may later reclassify from time to time, such Restricted Payment or any portion thereof into or among any of such applicable provisions.
Appears in 2 contracts
Samples: Trust Indenture, Trust Indenture
Restricted Payments. (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly:
: (i) declare or pay any dividend on, or make any other payment or distribution on account of 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 (A) dividends or distributions accrued or payable in Equity Interests (other than Disqualified InterestsStock) of the Company or (B) dividends or distributions to the Company or a Restricted Subsidiary of the CompanySubsidiary);
; (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 the Company (other than any such Equity Interests owned by the Company or any of its Restricted Subsidiary of the CompanySubsidiaries);
; (iii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value value, in each case, prior to any scheduled repayment, sinking fund payment or maturity, any Indebtedness that is subordinated to the Notes or any Note Guarantee the Subsidiary Guarantees (other than Indebtedness permitted under clause (vi) of the definition of “Permitted Debt”) Existing Notes), except (a) a payment of interest or principal at Stated Maturity or (b) the payment, purchase, repurchase redemption, defeasance or other acquisition of any such Indebtedness or retirement purchased in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case, case due within one year of the date of such payment, purchase, repurchase redemption, defeasance or other acquisitionacquisition or retirement for value; or
or (iv) make any Restricted Investment (all such payments and other actions set forth in the clauses (i) through (iv) above being collectively referred to as “Restricted Payments”), unless, at the time of and after giving effect to such Restricted Payment:
(Aa) no Event of Default shall have occurred and be continuing or would occur as a consequence thereofof such Restricted Payment;
(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 periodthereto, 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(a)4.09 hereof; and
(Cc) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after August 27beginning on October 1, 2012 2014 (excluding Restricted Payments permitted by clauses (i) (provided that at the time of declaring such dividend, such dividend was counted as a Restricted Payment) (ii), (iii), (iv), (v), (vi), (vii), (viii), (ix), (x), (xi), (xii), (xiii), (xiv) and (xvxii) of Section 4.07(b)the next succeeding paragraph), is less than the sum, without duplication, of
: (1i) 50% of the Consolidated Net Income of the Company for the period (taken as one accounting period) from April 2beginning on October 1, 2012 2014 up 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 (2ii) 100% of the aggregate net proceeds, proceeds (including the fair market value of any property or Capital Interests, other than cash) received by the Company since August 27on or after October 1, 2012 2014 as a contribution to its common equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified InterestsStock) or from the issue or sale of convertible or exchangeable Disqualified Interests Stock or convertible or exchangeable debt securities of the Company that have been converted into or exchanged for such Equity Interests (other than Equity Interests (Interests, Disqualified Stock or Disqualified Interests or convertible debt securities) securities sold to a Subsidiary of the Company), together with plus (iii) the amount by which Indebtedness or Disqualified Stock incurred or issued subsequent to the Issue Date is reduced on the Company’s consolidated balance sheet upon the conversion or exchange (other than by a Subsidiary of the Company) into Equity Interests of the Company (other than Disqualified Stock) (less the amount of any cash, or the fair market value of any other asset, distributed by the Company or any Restricted Subsidiary upon such conversion or exchange); provided that such amount shall not exceed the aggregate cash and Cash Equivalents net proceeds received by the Company or any of its Restricted Subsidiaries at Subsidiary after the time of such conversion or exchange plus the amount by which Indebtedness of the Company and its Restricted Subsidiaries is reduced upon the conversion or exchange subsequent to August 27, 2012 of any Indebtedness or Disqualified Interests which are convertible into or exchangeable for Qualified Capital Interests of the Company or any of its Restricted Subsidiaries, plus
(3) 100% of the amount received, including the fair market value of any property received after August 27, 2012 by means of (A) the sale or other disposition (other than to the Company or a Restricted Subsidiary) of Restricted Investments made by the Company or its Restricted Subsidiaries and repurchases and redemptions of such Restricted Investments Issue Date from the Company or its Restricted Subsidiaries issuance and repayments of loans or advances which constitute Restricted Investments of the Company or its Restricted Subsidiaries or (B) the sale (other than to a Subsidiary of the Company) of such Indebtedness or Disqualified Stock; plus (iv) to the extent that any Restricted Investment that was made on or after October 1, 2014 has been or is sold for cash or otherwise liquidated or repaid, purchased or redeemed for cash, the lesser of (A) such cash (less the cost of disposition, if any) and (B) the amount of such Restricted Investment, plus (v) to the extent not otherwise included in the calculation of Consolidated Net Income of the Company or a Restricted Subsidiaryfor such period for purposes of clause (i) above, 100% of the Capital Interests of an Unrestricted Subsidiary or a distribution from an Unrestricted Subsidiary net reduction in Investments (other than in each case to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment) or a dividend from an Unrestricted Subsidiary, plus
(4Investments) in the case of the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary or the merger or consolidation of an Unrestricted Subsidiary into any Person other than the Company or a Restricted Subsidiary resulting from dividends, repayment of loans or advances or other transfers of assets, in each case to the transfer Company or any Restricted Subsidiary, plus (vi) to the extent not otherwise included in the calculation of assets Consolidated Net Income of an Unrestricted Subsidiary to the Company for such period for purposes of clause (i) above, 100% of any dividends or interest payments received by the Company or a Restricted SubsidiarySubsidiary on and after the Issue Date from an Unrestricted Subsidiary or other Investment (other than a Permitted Investment), plus (vii) to the extent that any Unrestricted Subsidiary of the Company has been or is redesignated as a Restricted Subsidiary on or after October 1, 2014, the lesser of (A) the fair market value of the Company’s Investment in such Unrestricted Subsidiary (other than an Unrestricted Subsidiary to as of the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment), plus
(5) $141.0 million. The Board of Directors 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 in the Subsidiary so designated will be deemed to be Restricted Payments or Permitted Investments, in the Company’s discretion, at the time date of such designation redesignation and will reduce the amount available for Restricted Payments or Permitted Investments, as applicable. All (B) such outstanding Investments will be deemed to constitute Investments in an amount equal to the fair market value as of the date on which such Investments at the time of such designation. Such designation will only be permitted if such Restricted Payments or Permitted Investments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of was originally designated as an Unrestricted Subsidiary.
. So long as no Default has occurred and is continuing or would be caused thereby (bexcept in the case of clause (i) Section 4.07(a) shall of this paragraph), the preceding provisions will not prohibit:
: (i) the payment of any dividend or other distribution on, or redemption of, Equity Interests, within 60 days after the date of declaration of the dividend or call for redemption the giving of notice thereof, if if, at said the date of such declaration or call for redemption the giving of such notice the payment would have complied with the provisions of this Indenture;
; (ii) 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 the making of any Restricted Payment Investment, 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, or capital contribution in respect of, Equity Interests of the Company (other than any Disqualified Interests) or from a contribution of capital to the CompanyStock); provided that the amount of any such net cash proceeds that are utilized for any such redemption, repurchase, retirement, defeasance or other acquisition shall or any such Investment will be excluded from Section 4.07(a)(C)(2);
clause (c)(ii) of the preceding paragraph; (iii) the defeasance, redemption, repurchase, replacement, extension, renewal, refinancing or retirement repurchase or other acquisition of subordinated Indebtedness of the Company or Disqualified Interests in exchange for or any Guarantor with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness;
; (iv) the declaration, or payment of any dividend or other payment or distribution by a Restricted Subsidiary of the Company to the holders of its common Equity Interests on a pro rata basis;
; (v) repurchases of Equity Interests deemed to occur upon exercise of stock options if those Equity Interests represent all or a portion of the exercise price of those options; (vi) 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 (in the event such Equity Interests are not owned by any current or former officer, director, employee, consultant or agent of the Company or any of its Restricted Subsidiaries (or Heirs or other permitted transferees thereofSubsidiaries) upon death, disability, retirement, severance or termination of employment or service or in connection with a stock option plan or agreement, shareholders agreement, or similar agreement, plan or arrangement, including amendments thereto; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may not exceed: (A) $10.0 million in any calendar year, with unused amounts being available to be used in any later calendar year; provided that such amount in any calendar year may be increased in an amount not to exceed the net cash proceeds from the sale of Equity Interests (other than Disqualified Interests) of the Company to $20.0 million in any officer, director, employee or agent of the Company or any Subsidiary of the Company that occurs after the date of this Indenture, fiscal year with unused amounts carried over to the extent such net cash proceeds have not otherwise been applied succeeding fiscal year, subject to make Restricted Payments pursuant to Section 4.07(a)(C)(2)a maximum of $40.0 million in any fiscal year; plus (Bvii) the cash proceeds of key man life insurance policies received purchase by the Company and its Restricted Subsidiaries after the date of this Indenture that are used for the repurchase, redemption or other acquisition or retirement for value owned by the individual (or such individual’s estate) that is the subject of such insurance;
(vi) the repurchase of Equity Interests deemed to occur upon the exercise of options, warrants or other convertible securities to the extent such Equity Interests represent a portion of the exercise price of those options, warrants or other convertible securities and cash payments in lieu of the issuance of fractional shares arising out of stock dividends, splits or combinations or business combinations and payments or distributions to dissenting stockholders pursuant to applicable law in connection with the exercise a consolidation, merger or transfer of options, warrants, or other convertible securities;
assets; (viiviii) the declaration and payment of regular quarterly dividends on to holders of any class or series of preferred stock of the Company’s Equity Interests Company issued or incurred in accordance compliance with past practice and not Section 4.09 hereof to exceed $0.05 per share;
the extent such dividends are included in the definition of “Fixed Charges”; (viiiix) additional Restricted Payments not to exceed $150.0 million after August 27, 2012;
under this clause (ix) in the repurchase aggregate, plus, to the extent Restricted Payments made pursuant to this clause (ix) are Investments made by the Company or any of its Restricted Subsidiaries in any Person and such Investment is sold for cash or otherwise liquidated or repaid, purchased or redeemed for cash, an amount equal to the lesser of (A) such cash (less the cost of disposition, if any) and (B) the amount of such Restricted Payment; provided that the amount of such cash will be excluded from clause (c)(iv) of the Company’s Equity Interests in an amount not to exceed $50.0 million after August 27, 2012;
immediately preceding paragraph; (x) distributions or payments other Restricted Payments, so long as the Consolidated Total Leverage Ratio of Securitization Fees the Company and purchases its Restricted Subsidiaries on a consolidated basis is no greater than 3.0 to 1.0 determined on a pro forma basis for the most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date of Securitization Assets pursuant to a Securitization Repurchase Obligation in connection with a Qualified Securitization Financing;
such Restricted Payment; (xi) any payments made in connection with the consummation of the transactions on substantially the terms described in the Offering Memorandum;
(xii) the payment of intercompany subordinated debt, the incurrence of which was permitted under Section 4.09(b)(vi);
(xiii) the purchase of fractional shares dividends or other distributions by the Company upon conversion or any Restricted Subsidiary of any securities (A) Capital Stock of the Company into Capital Interests of the Company;
an Unrestricted Subsidiary, or (xivB) the repurchase, redemption or other acquisition or retirement for value of subordinated Indebtedness or Disqualified Interests pursuant Debt owed to the provisions similar to those described under Section 4.14 and Section 4.10; provided that all Notes tendered by Holders of the Notes in connection with the related Change of Control Offer or Asset Sale Offer, as applicable, have been repurchased, redeemed or acquired for value in full; and
(xv) payment of dividends on Disqualified Interests of the Company or a Restricted Subsidiary by, an Unrestricted Subsidiary, in each case, other than an Unrestricted Subsidiary the issuance principal asset of which is permitted by cash and Cash Equivalents or (C) intellectual property that is material to the Company and its Subsidiaries, taken as a whole; or (xii) any Restricted Payments that are made in connection with Transactions, including the consummation of the Acquisition. For purposes of determining compliance with this Indenture.
Section 4.07, in the event that at the time a Restricted Payment or Permitted Investment (cor any portion thereof) is made such Restricted Payment or Permitted Investment (or any portion thereof) meets the criteria of more than one of the categories of Restricted Payments described in the first paragraph of this Section 4.07 or clauses (i) through (xii) of the preceding paragraph, or one or more of the categories of Investments described in the clauses of the definition of “Permitted Investment,” then the Company, in its sole discretion, will classify (and will be entitled to divide and classify such Restricted Payment or Permitted Investment (or any portion thereof) among one or more categories and may later redivide or reclassify such Restricted Payment among such categories in any manner that complies with this Section 4.07 at the time of classification or reclassification. 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-assets or securities other than cash Restricted Payment shall that are required to be valued by this Section 4.07 will be determined by an officer of the Company. In Company (or if such fair market value exceeds $50.0 million, by the event that a Restricted Payment meets the criteria Board of more than one Directors of the exceptions described in (i) through (xv) above or is entitled to be made pursuant to the first paragraph of this covenant, the Company may, in its sole discretion, classify, and may later reclassify from time to time, such Restricted Payment or any portion thereof into or among any of such applicable provisionsCompany).
Appears in 2 contracts
Samples: Indenture (Asbury Automotive Group Inc), Indenture (Asbury Automotive Group Inc)
Restricted Payments. (a) The Company shall will not, and shall will not cause or 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, 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 holders (other than (A) dividends or distributions accrued or payable in Equity Interests (other than Disqualified InterestsStock) of the Company or (B) any of its Restricted Subsidiaries and other than dividends or distributions payable to the Company or a Restricted Subsidiary of the CompanySubsidiary);
(ii2) 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 the Company (other than any such Equity Interests owned by the Company or any Restricted Subsidiary entity of the Company);
(iii3) make any principal payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness of the Issuer or any Guarantor that is expressly contractually subordinated in right of payment to the Notes or to any Note Guarantee (other than excluding any intercompany Indebtedness permitted under clause (vi) between or among the Company and any of the definition of “Permitted Debt”) its Restricted Subsidiaries), except (ai) a payment of interest or principal at the Stated Maturity thereof or (bii) the purchase, repurchase or other acquisition of any such Indebtedness purchased in anticipation of satisfying a sinking fund obligation, principal installment or final scheduled maturity, in each case, case due within one year of the date of such purchase, repurchase or other acquisition; or
(iv4) make any Restricted Investment (all such payments and other actions set forth in these clauses (ia)(1) through (iva)(4) above being collectively referred to as “Restricted Payments”), unless, at the time of and after giving effect to any such Restricted Payment:
(Aa) no Default or Event of Default shall have has occurred and be is continuing or would occur as a consequence thereofof such Restricted Payment;
(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 Fixed Charge Coverage Ratio test set forth in Section 4.09(a)) hereof; and
(Cc) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after August 27since October 1, 2012 (excluding Restricted Payments permitted by clauses (i) (provided that at the time of declaring such dividend, such dividend was counted as a Restricted Payment) (iiSections 4.07(b)(2), (iii3), (iv4), (v), (vi), (vii), (viii), (ix), (x), (xi), (xii), (xiii), (xiv7) and (xv12) of Section 4.07(b)hereof), is less than the sum, without duplication, of:
(1i) 50% of the Consolidated Net Income of the Company for the period (taken as one accounting period) from April 2October 1, 2012 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
(2ii) 100% of the aggregate net proceeds, including cash proceeds and the fair market value Fair Market Value of any property or Capital Interests, marketable securities received by the Company since August 27October 1, 2012 as a contribution to its common equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified InterestsStock) or from the issue or sale of convertible or exchangeable Disqualified Interests Stock of the Company or convertible or exchangeable debt securities of the Company Company, in each case that have been converted into such or exchanged for Equity Interests of the Company (other than Equity Interests (or Disqualified Interests Stock or convertible debt securities) sold to a Subsidiary of the Company), together with the aggregate cash and Cash Equivalents received by the Company or any of its Restricted Subsidiaries at the time of such conversion or exchange plus the amount by which Indebtedness of the Company and its Restricted Subsidiaries is reduced upon the conversion or exchange subsequent to August 27, 2012 of any Indebtedness or Disqualified Interests which are convertible into or exchangeable for Qualified Capital Interests of the Company or any of its Restricted Subsidiaries, ; plus
(3iii) to the extent that any Restricted Investment that was made after October 1, 2012 is (a) sold, disposed of or otherwise cancelled, liquidated or repaid, 100% of the aggregate amount received in cash and the Fair Market Value of marketable securities received; or (b) made in an entity that subsequently becomes a Restricted Subsidiary, including 100% of the fair market value Fair Market Value of the Company’s Restricted Investment as of the date such entity becomes a Restricted Subsidiary; plus
(iv) to the extent that any property received Unrestricted Subsidiary of the Company designated as such after August 27October 1, 2012 by means of (A) the sale is redesignated as a Restricted Subsidiary, or other disposition (other than to is merged or consolidated into the Company or a Restricted Subsidiary) of Restricted Investments made by the Company , or its Restricted Subsidiaries and repurchases and redemptions of such Restricted Investments from the Company or its Restricted Subsidiaries and repayments of loans or advances which constitute Restricted Investments all of the Company or its Restricted Subsidiaries or (B) the sale (other than to the Company or a Restricted Subsidiary) assets of the Capital Interests of an Unrestricted Subsidiary or a distribution from an Unrestricted Subsidiary (other than in each case to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment) or a dividend from an Unrestricted Subsidiary, plus
(4) in the case of the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary or the merger or consolidation of an Unrestricted Subsidiary into the Company or a Restricted Subsidiary or the transfer of assets of an Unrestricted Subsidiary are transferred to the Company or a Restricted Subsidiary, in each case, after October 1, 2012, the fair market value Fair Market Value of the Company’s Restricted Investment in such Unrestricted Subsidiary as of the date of such redesignation, merger, consolidation or transfer of assets to the extent such investments reduced the restricted payments capacity under this clause (other than c) and were not previously repaid or otherwise reduced; plus
(v) 100% of any dividends or distributions received by the Company or a Restricted Subsidiary after October 1, 2012 from an Unrestricted Subsidiary to the extent that such dividends or distributions were not otherwise included in the Investment in such Unrestricted Subsidiary constituted a Permitted Investment), plus
(5) $141.0 million. The Board Consolidated Net Income of Directors 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 for such period (excluding, for the avoidance of doubt, repayments of, or interest payments in respect of, any Designated Proceeds Restricted Payment, any Ocean Subsidiaries in Permitted Investment or the Subsidiary so designated will be deemed to be Restricted Payments or Permitted Investments, in the Company’s discretion, at the time of such designation and will reduce the amount available for Restricted Payments or Permitted Investments, as applicable. 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 Payments or Permitted Investments would be permitted at such time and if such Restricted Subsidiary otherwise meets pursuant to clause (16) or (17) of the definition of an Unrestricted Subsidiarythereof).
(b) The preceding provisions of Section 4.07(a) shall hereof will not prohibit:
(i1) the payment of any dividend or other distribution or the consummation of any redemption within 60 days after the date of declaration of the dividend or call for giving of the redemption thereofnotice, as the case may be, if at said the date of declaration or call for notice, the dividend or redemption such payment would have complied with the provisions of this Indenture;
(ii2) the making of any Restricted Payment in exchange for, or out of or with the net cash proceeds of the substantially concurrent sale (other than to a Subsidiary of the Company) of, Equity Interests of the Company (other than any Disqualified InterestsStock) or from a 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 redemption, Restricted Payment will be excluded from Section 4.07(a)(4)(c)(ii) and will not be considered to be net cash proceeds from an Equity Offering for purposes of Section 3.07 hereof;
(3) the repurchase, retirementredemption, defeasance or other acquisition shall be excluded from Section 4.07(a)(C)(2);
(iii) the defeasance, redemption, repurchase, replacement, extension, renewal, refinancing or retirement for value of Indebtedness of the Issuer or other acquisition of any Guarantor that is contractually subordinated Indebtedness to the Notes or Disqualified Interests in exchange for or to any Note Guarantee with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness;
(iv4) the declarationso long as no Default or Event of Default has occurred and is continuing, or payment of any dividend or other distribution 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 Restricted Subsidiary or any direct or indirect parent entity of the Company held by any current or former officer, director, employee, employee or consultant or agent of the Company or any of its Restricted Subsidiaries (or Heirs any direct or other permitted transferees thereof) upon deathindirect parent entity of the Company pursuant to any equity subscription agreement, disability, retirement, severance or termination of employment or service or in connection with a stock option plan or agreement, shareholders agreementrestricted stock grant, shareholders’ agreement or similar agreement, plan or arrangement, including amendments thereto; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may not exceed: (A) exceed $10.0 15.0 million in the aggregate in any calendar year, twelve-month period (increasing to $30.0 million following an underwritten public Equity Offering) with unused amounts being available carried over to be used in any later calendar yearsucceeding twelve-month periods subject to a maximum of $30.0 million (increasing to $60.0 million following an underwritten public Equity Offering); provided and provided, further, that such amount in any calendar year twelve-month period may be increased in by an amount not to exceed the net cash proceeds from the sale of Equity Interests (other than Disqualified Interests) of the Company to any officer, director, employee or agent of the Company or any a Restricted Subsidiary received by the Company or a Restricted Subsidiary during such twelve-month period, in each case to members of management, directors or consultants of the Company that occurs after the date Company, any of this Indenture, its Restricted Subsidiaries or any of its direct or indirect parent entities to the extent such net the cash proceeds from the sale of Equity Interests have not otherwise been applied to make the making of Restricted Payments pursuant to Section 4.07(a)(C)(2); plus (B4.07(a)(4)(c) the cash proceeds of key man life insurance policies received by the Company and its Restricted Subsidiaries after the date or Section 4.07(b)(2) of this Indenture that are used for paragraph or to an optional redemption of the repurchase, redemption or other acquisition or retirement for value owned by the individual (or such individual’s estate) that is the subject of such insuranceNotes pursuant to Section 3.07 hereof;
(vi5) the repurchase of Equity Interests deemed to occur upon the exercise of options, warrants or other convertible securities stock options to the extent such Equity Interests represent a portion of the exercise price of those stock options;
(6) so long as no Default or Event of Default has occurred and is continuing, warrants 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 preferred stock of any Restricted Subsidiary issued on or after the Issue Date in accordance with Section 4.09 hereof;
(7) payments of cash, dividends, distributions, advances or other convertible securities and Restricted Payments by the Company or any of its Restricted Subsidiaries to allow the payment of cash payments in lieu of the issuance of fractional shares in connection with upon (i) the exercise of options, warrants, options or other convertible securitieswarrants or (ii) the conversion or exchange of Capital Stock of any such Person;
(viii) the payment of any dividend (or, in the case of any partnership or limited liability company, any similar distribution) by a Restricted Subsidiary (other than a Xxxxx Act Compliant Entity) to the holders of its Equity Interests (other than the Company or any Restricted Subsidiary) on no more than a pro rata basis or (ii) the payment of any dividend (or, in the case of any partnership or limited liability company, any similar distribution) by a Xxxxx Act Compliant Entity to the holders of its Equity Interests (other than the Company or any Restricted Subsidiary) in an aggregate amount not to exceed in any calendar year $2.0 million per passenger cruise vessel owned by or contracted to be owned by such Xxxxx Act Compliant Entity;
(9) the declaration and payment of regular quarterly dividends on the Company’s common Equity Interests in accordance with past practice and not (or the payment of dividends to exceed $0.05 per share;
(viii) additional Restricted Payments not any parent entity to exceed $150.0 million after August 27fund a payment of dividends on such parent entity’s common Equity Interests), 2012;
(ix) following the repurchase first public offering of the Company’s common Equity Interests or the common Equity Interests of any parent entity after the Issue Date, in an amount not to exceed $50.0 million after August 276.00% per annum of the net cash proceeds received by or contributed to the Company in or from any such public offering, 2012other than public offerings with respect to the Company’s or such parent entity’s common Equity Interests registered on Form S-4 or Form S-8;
(x10) distributions so long as no Default or payments Event of Securitization Fees Default has occurred and purchases of Securitization Assets pursuant to a Securitization Repurchase Obligation in connection with a Qualified Securitization Financingis continuing, any Designated Proceeds Restricted Payment;
(xi11) any payments made in connection with the consummation declaration and payment of regularly scheduled or accrued dividends to holders of preferred stock of the transactions on substantially Company issued prior to the terms described Issue Date in the Offering Memoranduman aggregate amount not to exceed $150,000 in any calendar year;
(xii12) the payment of intercompany subordinated debta dividend to Holdings in an aggregate amount not to exceed $175 million, plus any amounts necessary to pay unpaid interest, premiums, fees, expenses or other amounts in connection with any redemption; the incurrence proceeds of which was permitted under Section 4.09(b)(vi);shall be used by Holdings to fund the redemption of all of its outstanding 8.625% / 9.375% Senior PIK Toggle Notes due 2018, which redemption occurred on August 21, 2014; or
(xiii13) so long as no Default or Event of Default has occurred and is continuing, other Restricted Payments in an aggregate amount taken together with all other Restricted Payments made pursuant to this clause (13) not to exceed (as of the date any such Restricted Payment is made) the purchase greater of fractional shares by the Company upon conversion (i) $50.0 million and (ii) 1.0% of any securities Total Tangible Assets of the Company into Capital Interests of for the Company;
(xiv) the repurchase, redemption or other acquisition or retirement for value of subordinated Indebtedness or Disqualified Interests pursuant to the provisions similar to those described under Section 4.14 and Section 4.10; provided that all Notes tendered by Holders of the Notes in connection with the related Change of Control Offer or Asset Sale Offer, as applicable, have been repurchased, redeemed or acquired for value in full; and
(xv) payment of dividends on Disqualified Interests of the Company or a Restricted Subsidiary, the issuance of which is permitted by this Indenturemost recently ended Calculation Period.
(c) 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 or, at the Company’s election, the date a commitment is made to make such 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 .
(d) For purposes of any non-cash Restricted Payment shall be determined by an officer of the Company. In determining compliance with this covenant, in the event that a proposed Restricted Payment (or a portion thereof) meets the criteria of more than one of the exceptions described in clauses (i1) through (xv13) above of Section 4.07(b) or is entitled to be made pursuant to the first paragraph of this covenant, covenant or one or more clauses in the definition of “Permitted Investments,” the Company may, in its sole discretion, classify, and may will be entitled to divide or classify or later divide or reclassify from time to time, (based on circumstances existing on the date of such reclassification) such Restricted Payment (or portion thereof) among such clauses (1) through (13), the definition of “Permitted Investments” and such first paragraph in a manner that complies with this covenant; provided that if any portion thereof into Investment pursuant to clause (13) above or among clause (17) of the definition of “Permitted Investments” is made in any Person that is not a Restricted Subsidiary and such Person subsequently becomes a Restricted Subsidiary or is subsequently designated a Restricted Subsidiary pursuant to Section 4.20 hereof, such Investment, if applicable, shall thereafter be deemed to have been made pursuant to clause (1) or (3) of the definition of “Permitted Investments” and not such applicable provisionsclause.
Appears in 2 contracts
Samples: Indenture (Viking Holdings LTD), Indenture (Viking Holdings LTD)
Restricted Payments. (ai) The Company shall not, and the Company shall not permit any of its Restricted Subsidiaries to, directly or indirectly:
(i) declare or pay any dividend , redeem, defease, repurchase, repay or make any payments in respect of, by the payment of cash or cash equivalents (in whole or in part, whether by way of open market purchases, tender offers, private transactions or otherwise), all or any portion of any Indebtedness (other than this Note and the Other Notes and Permitted Indebtedness), whether by way of payment in respect of principal of (or distribution on account premium, if any) or interest on, such Indebtedness if at the time such payment is due or is otherwise made or, after giving effect to such payment, an event constituting, or that with the passage of time and without being cured would constitute, an Event of Default has occurred and is continuing.
(ii) The Company shall not, and the Company’s or Company shall not permit any of its Restricted Subsidiaries’ Equity Interests Subsidiaries to, directly or indirectly, redeem, defease, repurchase, repay or make any payments in respect of, by the payment of cash or cash equivalents (in whole or in part, whether by way of open market purchases, tender offers, private transactions or otherwise), all or any portion of any Indebtedness (including, without limitation, any Permitted Indebtedness other than this Note and the Other Notes), by way of payment in connection with any merger respect of principal of (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 (A) dividends or distributions accrued or payable in Equity Interests (other than Disqualified Interests) of the Company or (B) dividends or distributions to the Company or a Restricted Subsidiary of the Company);
(ii) purchasepremium, 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 the Company (other than any such Equity Interests owned by the Company or any Restricted Subsidiary of the Company);
(iii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness that is subordinated to the Notes or any Note Guarantee (other than Indebtedness permitted under clause (vi) of the definition of “Permitted Debt”) except (a) a payment of interest or principal at Stated Maturity or (b) the purchase, repurchase or other acquisition of any such Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case, due within one year of the date of such purchase, repurchase or other acquisition; or
(iv) make any Restricted Investment (all such payments and other actions set forth in clauses (i) through (iv) above being collectively referred to as “Restricted Payments”), unless, at the time of and after giving effect to such Restricted Payment:
(A) no 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 Fixed Charge Coverage Ratio test set forth in Section 4.09(a); and
(Cany) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after August 27, 2012 (excluding Restricted Payments permitted by clauses (i) (provided that at the time of declaring such dividendIndebtedness. For clarity, such dividend was counted as a Restricted Payment) (ii), (iii), (iv), (v), (vi), (vii), (viii), (ix), (x), (xi), (xii), (xiii), (xiv) and (xv) of Section 4.07(b)), is less than the sum, without duplication, of
(1) 50% of the Consolidated Net Income of the Company for the period (taken as one accounting period) from April 2, 2012 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
(2) 100% of the aggregate net proceeds, including the fair market value of any property or Capital Interests, received by the Company since August 27, 2012 as a contribution to its equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified Interests) or from the issue or sale of Disqualified Interests or debt securities of the Company that have been converted into such Equity Interests (other than Equity Interests (or Disqualified Interests or convertible debt securities) sold to a Subsidiary of the Company), together with the aggregate cash and Cash Equivalents received by the Company or any of its Restricted Subsidiaries at the time of such conversion or exchange plus the amount by which Indebtedness of the Company and its Restricted Subsidiaries is reduced upon the conversion or exchange subsequent to August 27, 2012 of any Indebtedness or Disqualified Interests which are convertible into or exchangeable for Qualified Capital Interests of the Company or any of its Restricted Subsidiaries, plus
(3) 100% of the amount received, including the fair market value of any property received after August 27, 2012 by means of (A) the sale or other disposition (other than to the Company or a Restricted Subsidiary) of Restricted Investments made by the Company or its Restricted Subsidiaries and repurchases and redemptions of such Restricted Investments from the Company or its Restricted Subsidiaries and repayments of loans or advances which constitute Restricted Investments of the Company or its Restricted Subsidiaries or (B) the sale (other than to the Company or a Restricted Subsidiary) of the Capital Interests of an Unrestricted Subsidiary or a distribution from an Unrestricted Subsidiary (other than in each case to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment) or a dividend from an Unrestricted Subsidiary, plus
(4) in the case of the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary or the merger or consolidation of an Unrestricted Subsidiary into the Company or a Restricted Subsidiary or the transfer of assets of an Unrestricted Subsidiary to the Company or a Restricted Subsidiary, the fair market value of the Investment in such Unrestricted Subsidiary (other than an Unrestricted Subsidiary to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment), plus
(5) $141.0 million. The Board of Directors 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 in the Subsidiary so designated will be deemed to be Restricted Payments or Permitted Investments, in the Company’s discretion, at the time of such designation and will reduce the amount available for Restricted Payments or Permitted Investments, as applicable. 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 Payments or Permitted Investments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary.
(b) Section 4.07(a) restriction shall not prohibit:
(i) preclude the payment of any dividend or other distribution or redemption within 60 days after the date of declaration or call for redemption thereof, if at said date of declaration or call for redemption regularly scheduled principal and interest payments which may accrue under such payment would have complied with the provisions of this Indenture;
(ii) the making of any Restricted Payment in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Subsidiary of the Company) of, Equity Interests of the Company (other than any Disqualified Interests) or from a contribution of capital to the Company; 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 Section 4.07(a)(C)(2);
(iii) the defeasance, redemption, repurchase, replacement, extension, renewal, refinancing or retirement or other acquisition of subordinated Indebtedness or Disqualified Interests in exchange for or with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness;
(iv) the declaration, or payment of any dividend or other distribution 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 current or former officer, director, employee, consultant or agent of Company or any of its Restricted Subsidiaries (or Heirs or other permitted transferees thereof) upon death, disability, retirement, severance or termination of employment or service or in connection with a stock option plan or agreement, shareholders agreement, or similar agreement, plan or arrangement, including amendments thereto; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may not exceed: (A) $10.0 million in any calendar year, with unused amounts being available to be used in any later calendar year; provided that such amount in any calendar year may be increased in an amount not to exceed the net cash proceeds from the sale of Equity Interests (other than Disqualified Interests) of the Company to any officer, director, employee or agent of the Company or any Subsidiary of the Company that occurs after the date of this Indenture, to the extent such net cash proceeds have not otherwise been applied to make Restricted Payments pursuant to Section 4.07(a)(C)(2); plus (B) the cash proceeds of key man life insurance policies received by the Company and its Restricted Subsidiaries after the date of this Indenture that are used for the repurchase, redemption or other acquisition or retirement for value owned by the individual (or such individual’s estate) that is the subject of such insurance;
(vi) the repurchase of Equity Interests deemed to occur upon the exercise of options, warrants or other convertible securities to the extent such Equity Interests represent a portion of the exercise price of those options, warrants or other convertible securities and cash payments in lieu of the issuance of fractional shares in connection with the exercise of options, warrants, or other convertible securities;
(vii) the declaration and payment of regular quarterly dividends on the Company’s Equity Interests in accordance with past practice and not to exceed $0.05 per share;
(viii) additional Restricted Payments not to exceed $150.0 million after August 27, 2012;
(ix) the repurchase of the Company’s Equity Interests in an amount not to exceed $50.0 million after August 27, 2012;
(x) distributions or payments of Securitization Fees and purchases of Securitization Assets pursuant to a Securitization Repurchase Obligation in connection with a Qualified Securitization Financing;
(xi) any payments made in connection with the consummation of the transactions on substantially the terms described in the Offering Memorandum;
(xii) the payment of intercompany subordinated debt, the incurrence of which was permitted under Section 4.09(b)(vi);
(xiii) the purchase of fractional shares by the Company upon conversion of any securities of the Company into Capital Interests of the Company;
(xiv) the repurchase, redemption or other acquisition or retirement for value of subordinated Indebtedness or Disqualified Interests pursuant to the provisions similar to those described under Section 4.14 and Section 4.10; provided that all Notes tendered by Holders of the Notes in connection with the related Change of Control Offer or Asset Sale Offer, as applicable, have been repurchased, redeemed or acquired for value in full; and
(xv) payment of dividends on Disqualified Interests of the Company or a Restricted Subsidiary, the issuance of which is permitted by this Indenture.
(c) 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 Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall be determined by an officer of the Company. In the event that a Restricted Payment meets the criteria of more than one of the exceptions described in (i) through (xv) above or is entitled to be made pursuant to the first paragraph of this covenant, the Company may, in its sole discretion, classify, and may later reclassify from time to time, such Restricted Payment or any portion thereof into or among any of such applicable provisions.
Appears in 2 contracts
Samples: Convertible Security Agreement (Panacea Life Sciences Holdings, Inc.), Convertible Security Agreement (Panacea Life Sciences Holdings, Inc.)
Restricted Payments. (a) The Company shall will not, and shall will not cause or 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, 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 holders (other than (A) dividends or distributions accrued or payable in Equity Interests (other than Disqualified InterestsStock) of the Company or (B) any of its Restricted Subsidiaries and other than dividends or distributions payable to the Company or a Restricted Subsidiary of the CompanySubsidiary);
(ii2) 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 the Company (other than any such Equity Interests owned by the Company or any Restricted Subsidiary entity of the Company);
(iii3) make any principal payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness of the Company or any Guarantor that is expressly contractually subordinated in right of payment to the Notes or to any Note Guarantee (other than excluding any intercompany Indebtedness permitted under clause (vi) between or among the Company and any of the definition of “Permitted Debt”) its Restricted Subsidiaries), except (ai) a payment of interest or principal at the Stated Maturity thereof or (bii) the purchase, repurchase or other acquisition of any such Indebtedness purchased in anticipation of satisfying a sinking fund obligation, principal installment or final scheduled maturity, in each case, case due within one year of the date of such purchase, repurchase or other acquisition; or
(iv4) make any Restricted Investment (all such payments and other actions set forth in these clauses (ia)(1) through (iva)(4) above being collectively referred to as “Restricted Payments”), unless, at the time of and after giving effect to any such Restricted Payment:
(Aa) no Default or Event of Default shall have has occurred and be is continuing or would occur as a consequence thereofof such Restricted Payment;
(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 Fixed Charge Coverage Ratio test set forth in Section 4.09(a)) hereof; and
(Cc) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after August 27since October 1, 2012 (excluding Restricted Payments permitted by clauses (i) (provided that at the time of declaring such dividend, such dividend was counted as a Restricted Payment) (iiSections 4.07(b)(2), (iii3), (iv4), (v), (vi), (vii), (viii), (ix), (x), (xi), (xii), (xiii), (xiv7) and (xv12) of Section 4.07(b)hereof), is less than the sum, without duplication, of:
(1i) 50% of the Consolidated Net Income of the Company for the period (taken as one accounting period) from April 2October 1, 2012 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
(2ii) 100% of the aggregate net proceeds, including cash proceeds and the fair market value Fair Market Value of any property or Capital Interests, marketable securities received by the Company since August 27October 1, 2012 as a contribution to its common equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified InterestsStock) or from the issue or sale of convertible or exchangeable Disqualified Interests Stock of the Company or convertible or exchangeable debt securities of the Company Company, in each case that have been converted into such or exchanged for Equity Interests of the Company (other than Equity Interests (or Disqualified Interests Stock or convertible debt securities) sold to a Subsidiary of the Company), together with the aggregate cash and Cash Equivalents received by the Company or any of its Restricted Subsidiaries at the time of such conversion or exchange plus the amount by which Indebtedness of the Company and its Restricted Subsidiaries is reduced upon the conversion or exchange subsequent to August 27, 2012 of any Indebtedness or Disqualified Interests which are convertible into or exchangeable for Qualified Capital Interests of the Company or any of its Restricted Subsidiaries, ; plus
(3iii) to the extent that any Restricted Investment that was made after October 1, 2012 is (a) sold, disposed of or otherwise cancelled, liquidated or repaid, 100% of the aggregate amount received in cash and the Fair Market Value of marketable securities received; or (b) made in an entity that subsequently becomes a Restricted Subsidiary, including 100% of the fair market value Fair Market Value of the Company’s Restricted Investment as of the date such entity becomes a Restricted Subsidiary; plus
(iv) to the extent that any property received Unrestricted Subsidiary of the Company designated as such after August 27October 1, 2012 by means of (A) the sale is redesignated as a Restricted Subsidiary, or other disposition (other than to is merged or consolidated into the Company or a Restricted Subsidiary) of Restricted Investments made by the Company , or its Restricted Subsidiaries and repurchases and redemptions of such Restricted Investments from the Company or its Restricted Subsidiaries and repayments of loans or advances which constitute Restricted Investments all of the Company or its Restricted Subsidiaries or (B) the sale (other than to the Company or a Restricted Subsidiary) assets of the Capital Interests of an Unrestricted Subsidiary or a distribution from an Unrestricted Subsidiary (other than in each case to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment) or a dividend from an Unrestricted Subsidiary, plus
(4) in the case of the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary or the merger or consolidation of an Unrestricted Subsidiary into the Company or a Restricted Subsidiary or the transfer of assets of an Unrestricted Subsidiary are transferred to the Company or a Restricted Subsidiary, in each case, after October 1, 2012, the fair market value Fair Market Value of the Company’s Restricted Investment in such Unrestricted Subsidiary as of the date of such redesignation, merger, consolidation or transfer of assets to the extent such investments reduced the restricted payments capacity under this clause (other than c) and were not previously repaid or otherwise reduced; plus
(v) 100% of any dividends or distributions received by the Company or a Restricted Subsidiary after October 1, 2012 from an Unrestricted Subsidiary to the extent that such dividends or distributions were not otherwise included in the Investment in such Unrestricted Subsidiary constituted a Permitted Investment), plus
(5) $141.0 million. The Board Consolidated Net Income of Directors 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 for such period (excluding, for the avoidance of doubt, repayments of, or interest payments in respect of, any Designated Proceeds Restricted Payment, any Ocean Subsidiaries in Permitted Investment or the Subsidiary so designated will be deemed to be Restricted Payments or Permitted Investments, in the Company’s discretion, at the time of such designation and will reduce the amount available for Restricted Payments or Permitted Investments, as applicable. 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 Payments or Permitted Investments would be permitted at such time and if such Restricted Subsidiary otherwise meets pursuant to clause (16) or (17) of the definition of an Unrestricted Subsidiarythereof).
(b) The preceding provisions of Section 4.07(a) shall hereof will not prohibit:
(i1) the payment of any dividend or other distribution or the consummation of any redemption within 60 days after the date of declaration of the dividend or call for giving of the redemption thereofnotice, as the case may be, if at said the date of declaration or call for notice, the dividend or redemption such payment would have complied with the provisions of this Indenture;
(ii2) the making of any Restricted Payment in exchange for, or out of or with the net cash proceeds of the substantially concurrent sale (other than to a Subsidiary of the Company) of, Equity Interests of the Company (other than any Disqualified InterestsStock) or from a 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 redemption, Restricted Payment will be excluded from Section 4.07(a)(4)(c)(ii) and will not be considered to be net cash proceeds from an Equity Offering for purposes of Section 3.07 hereof;
(3) the repurchase, retirementredemption, defeasance or other acquisition shall be excluded from Section 4.07(a)(C)(2);
(iii) the defeasance, redemption, repurchase, replacement, extension, renewal, refinancing or retirement for value of Indebtedness of the Company, or other acquisition of any Guarantor that is contractually subordinated Indebtedness to the Notes or Disqualified Interests in exchange for or to any Note Guarantee with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness;
(iv4) the declarationso long as no Default or Event of Default has occurred and is continuing, or payment of any dividend or other distribution 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 Restricted Subsidiary or any direct or indirect parent entity of the Company held by any current or former officer, director, employee, employee or consultant or agent of the Company or any of its Restricted Subsidiaries (or Heirs any direct or other permitted transferees thereof) upon deathindirect parent entity of the Company pursuant to any equity subscription agreement, disability, retirement, severance or termination of employment or service or in connection with a stock option plan or agreement, shareholders agreementrestricted stock grant, shareholders’ agreement or similar agreement, plan or arrangement, including amendments thereto; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may not exceed: (A) exceed $10.0 15.0 million in the aggregate in any calendar year, twelve-month period (increasing to $30.0 million following an underwritten public Equity Offering) with unused amounts being available carried over to be used in any later calendar yearsucceeding twelve-month periods subject to a maximum of $30.0 million (increasing to $60.0 million following an underwritten public Equity Offering); provided and provided, further, that such amount in any calendar year twelve-month period may be increased in by an amount not to exceed the net cash proceeds from the sale of Equity Interests (other than Disqualified Interests) of the Company to any officer, director, employee or agent of the Company or any a Restricted Subsidiary received by the Company or a Restricted Subsidiary during such twelve-month period, in each case to members of management, directors or consultants of the Company that occurs after the date Company, any of this Indenture, its Restricted Subsidiaries or any of its direct or indirect parent entities to the extent such net the cash proceeds from the sale of Equity Interests have not otherwise been applied to make the making of Restricted Payments pursuant to Section 4.07(a)(C)(2); plus (B4.07(a)(4)(c) the cash proceeds of key man life insurance policies received by the Company and its Restricted Subsidiaries after the date or Section 4.07(b)(2) of this Indenture that are used for paragraph or to an optional redemption of the repurchase, redemption or other acquisition or retirement for value owned by the individual (or such individual’s estate) that is the subject of such insuranceNotes pursuant to Section 3.07 hereof;
(vi5) the repurchase of Equity Interests deemed to occur upon the exercise of options, warrants or other convertible securities stock options to the extent such Equity Interests represent a portion of the exercise price of those stock options;
(6) so long as no Default or Event of Default has occurred and is continuing, warrants 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 preferred stock of any Restricted Subsidiary issued on or after the Issue Date in accordance with Section 4.09 hereof;
(7) payments of cash, dividends, distributions, advances or other convertible securities and Restricted Payments by the Company or any of its Restricted Subsidiaries to allow the payment of cash payments in lieu of the issuance of fractional shares in connection with upon (i) the exercise of options, warrants, options or other convertible securitieswarrants or (ii) the conversion or exchange of Capital Stock of any such Person;
(viii) the payment of any dividend (or, in the case of any partnership or limited liability company, any similar distribution) by a Restricted Subsidiary (other than a Xxxxx Act Compliant Entity) to the holders of its Equity Interests (other than the Company or any Restricted Subsidiary) on no more than a pro rata basis or (ii) the payment of any dividend (or, in the case of any partnership or limited liability company, any similar distribution) by a Xxxxx Act Compliant Entity to the holders of its Equity Interests (other than the Company or any Restricted Subsidiary) in an aggregate amount not to exceed in any calendar year $2.0 million per passenger cruise vessel owned by or contracted to be owned by such Xxxxx Act Compliant Entity;
(9) the declaration and payment of regular quarterly dividends on the Company’s common Equity Interests in accordance with past practice and not (or the payment of dividends to exceed $0.05 per share;
(viii) additional Restricted Payments not any parent entity to exceed $150.0 million after August 27fund a payment of dividends on such parent entity’s common Equity Interests), 2012;
(ix) following the repurchase first public offering of the Company’s common Equity Interests or the common Equity Interests of any parent entity after the Issue Date, in an amount not to exceed $50.0 million after August 276.00% per annum of the net cash proceeds received by or contributed to the Company in or from any such public offering, 2012other than public offerings with respect to the Company’s or such parent entity’s common Equity Interests registered on Form S-4 or Form S-8;
(x10) distributions so long as no Default or payments Event of Securitization Fees Default has occurred and purchases of Securitization Assets pursuant to a Securitization Repurchase Obligation in connection with a Qualified Securitization Financingis continuing, any Designated Proceeds Restricted Payment;
(xi11) any payments made in connection with the consummation declaration and payment of regularly scheduled or accrued dividends to holders of preferred stock of the transactions on substantially Company issued prior to the terms described Issue Date in the Offering Memoranduman aggregate amount not to exceed $150,000 in any calendar year;
(xii12) the payment of intercompany subordinated debta dividend to Viking Holdings Ltd in an aggregate amount not to exceed $175 million, plus any amounts necessary to pay unpaid interest, premiums, fees, expenses or other amounts in connection with any redemption; the incurrence proceeds of which was permitted under Section 4.09(b)(vi);shall be used by Viking Holdings Ltd to fund the redemption of all of its outstanding 8.625% / 9.375% Senior PIK Toggle Notes due 2018, which redemption occurred on August 21, 2014; or
(xiii13) so long as no Default or Event of Default has occurred and is continuing, other Restricted Payments in an aggregate amount taken together with all other Restricted Payments made pursuant to this clause (13) not to exceed (as of the date any such Restricted Payment is made) the purchase greater of fractional shares by the Company upon conversion (i) $50.0 million and (ii) 1.0% of any securities Total Tangible Assets of the Company into Capital Interests of for the Company;
(xiv) the repurchase, redemption or other acquisition or retirement for value of subordinated Indebtedness or Disqualified Interests pursuant to the provisions similar to those described under Section 4.14 and Section 4.10; provided that all Notes tendered by Holders of the Notes in connection with the related Change of Control Offer or Asset Sale Offer, as applicable, have been repurchased, redeemed or acquired for value in full; and
(xv) payment of dividends on Disqualified Interests of the Company or a Restricted Subsidiary, the issuance of which is permitted by this Indenturemost recently ended Calculation Period.
(c) 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 or, at the Company’s election, the date a commitment is made to make such 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 .
(d) For purposes of any non-cash Restricted Payment shall be determined by an officer of the Company. In determining compliance with this covenant, in the event that a proposed Restricted Payment (or a portion thereof) meets the criteria of more than one of the exceptions described in clauses (i1) through (xv13) above of Section 4.07(b) or is entitled to be made pursuant to the first paragraph of this covenant, covenant or one or more clauses in the definition of “Permitted Investments,” the Company may, in its sole discretion, classify, and may will be entitled to divide or classify or later divide or reclassify from time to time, (based on circumstances existing on the date of such reclassification) such Restricted Payment (or portion thereof) among such clauses (1) through (13), the definition of “Permitted Investments” and such first paragraph in a manner that complies with this covenant; provided that if any portion thereof into Investment pursuant to clause (13) above or among clause (17) of the definition of “Permitted Investments” is made in any Person that is not a Restricted Subsidiary and such Person subsequently becomes a Restricted Subsidiary or is subsequently designated a Restricted Subsidiary pursuant to Section 4.20 hereof, such Investment, if applicable, shall thereafter be deemed to have been made pursuant to clause (1) or (3) of the definition of “Permitted Investments” and not such applicable provisionsclause.
Appears in 2 contracts
Samples: Indenture (Viking Holdings LTD), Indenture (Viking Holdings LTD)
Restricted Payments. (a) The Company shall will not, and shall will not cause or 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, 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 holders (other than (A) dividends or distributions accrued or payable in Equity Interests (other than Disqualified InterestsStock) of the Company or (B) any of its Restricted Subsidiaries and other than dividends or distributions payable to the Company or a Restricted Subsidiary of the CompanySubsidiary);
(ii2) 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 the Company (other than any such Equity Interests owned by the Company or any Restricted Subsidiary entity of the Company);
(iii3) make any principal payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness of the Company or any Guarantor that is expressly contractually subordinated in right of payment to the Notes or to any Note Guarantee (other than excluding, in each case, any intercompany Indebtedness permitted under clause (vi) between or among the Company and any of the definition of “Permitted Debt”) its Restricted Subsidiaries), except (ai) a payment of interest or principal at the Stated Maturity thereof or (bii) the purchase, repurchase or other acquisition of any such Indebtedness purchased in anticipation of satisfying a sinking fund obligation, principal installment or final scheduled maturity, in each case, case due within one year of the date of such purchase, repurchase or other acquisition; or
(iv4) make any Restricted Investment (all such payments and other actions set forth in these clauses (ia)(1) through (iva)(4) above being collectively referred to as “Restricted Payments”), unless, at the time of and after giving effect to any such Restricted Payment:
(Aa) no Default or Event of Default shall have has occurred and be is continuing or would occur as a consequence thereofof such Restricted Payment;
(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 Fixed Charge Coverage Ratio test set forth in Section 4.09(a)) hereof; and
(Cc) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after August 27since October 1, 2012 (excluding Restricted Payments permitted by clauses (i) (provided that at the time of declaring such dividend, such dividend was counted as a Restricted Payment) (iiSections 4.07(b)(2), (iii3), (iv4), (v), (vi), (vii), (viii), (ix), (x), (xi), (xii), (xiii), (xiv7) and (xv12) of Section 4.07(b)hereof), is less than the sum, without duplication, of:
(1i) 50% of the Consolidated Net Income of the Company for the period (taken as one accounting period) from April 2October 1, 2012 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
(2ii) 100% of the aggregate net proceeds, including cash proceeds and the fair market value Fair Market Value of any property or Capital Interests, marketable securities received by the Company since August 27October 1, 2012 as a contribution to its common equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified InterestsStock) or from the issue or sale of convertible or exchangeable Disqualified Interests Stock of the Company or convertible or exchangeable debt securities of the Company Company, in each case that have been converted into such or exchanged for Equity Interests of the Company (other than Equity Interests (or Disqualified Interests Stock or convertible debt securities) sold to a Subsidiary of the Company), together with the aggregate cash and Cash Equivalents received by the Company or any of its Restricted Subsidiaries at the time of such conversion or exchange plus the amount by which Indebtedness of the Company and its Restricted Subsidiaries is reduced upon the conversion or exchange subsequent to August 27, 2012 of any Indebtedness or Disqualified Interests which are convertible into or exchangeable for Qualified Capital Interests of the Company or any of its Restricted Subsidiaries, ; plus
(3iii) to the extent that any Restricted Investment that was made after October 1, 2012 is (a) sold, disposed of or otherwise cancelled, liquidated or repaid, 100% of the aggregate amount received in cash and the Fair Market Value of marketable securities received; or (b) made in an entity that subsequently becomes a Restricted Subsidiary, including 100% of the fair market value Fair Market Value of the Company’s Restricted Investment as of the date such entity becomes a Restricted Subsidiary; plus
(iv) to the extent that any property received Unrestricted Subsidiary of the Company designated as such after August 27October 1, 2012 by means of (A) the sale is redesignated as a Restricted Subsidiary, or other disposition (other than to is merged or consolidated into the Company or a Restricted Subsidiary) of Restricted Investments made by the Company , or its Restricted Subsidiaries and repurchases and redemptions of such Restricted Investments from the Company or its Restricted Subsidiaries and repayments of loans or advances which constitute Restricted Investments all of the Company or its Restricted Subsidiaries or (B) the sale (other than to the Company or a Restricted Subsidiary) assets of the Capital Interests of an Unrestricted Subsidiary or a distribution from an Unrestricted Subsidiary (other than in each case to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment) or a dividend from an Unrestricted Subsidiary, plus
(4) in the case of the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary or the merger or consolidation of an Unrestricted Subsidiary into the Company or a Restricted Subsidiary or the transfer of assets of an Unrestricted Subsidiary are transferred to the Company or a Restricted Subsidiary, in each case, after October 1, 2012, the fair market value Fair Market Value of the Company’s Restricted Investment in such Unrestricted Subsidiary as of the date of such redesignation, merger, consolidation or transfer of assets to the extent such investments reduced the restricted payments capacity under this clause (other than c) and were not previously repaid or otherwise reduced; plus
(v) 100% of any dividends or distributions received by the Company or a Restricted Subsidiary after October 1, 2012 from an Unrestricted Subsidiary to the extent that such dividends or distributions were not otherwise included in the Investment in such Unrestricted Subsidiary constituted a Permitted Investment), plus
(5) $141.0 million. The Board Consolidated Net Income of Directors 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 for such period (excluding, for the avoidance of doubt, repayments of, or interest payments in respect of, any Designated Proceeds Restricted Payment, any Ocean Subsidiaries in Permitted Investment or the Subsidiary so designated will be deemed to be Restricted Payments or Permitted Investments, in the Company’s discretion, at the time of such designation and will reduce the amount available for Restricted Payments or Permitted Investments, as applicable. 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 Payments or Permitted Investments would be permitted at such time and if such Restricted Subsidiary otherwise meets pursuant to clause (16) or (17) of the definition of an Unrestricted Subsidiarythereof).
(b) The preceding provisions of Section 4.07(a) shall hereof will not prohibit:
(i1) the payment of any dividend or other distribution or the consummation of any redemption within 60 days after the date of declaration of the dividend or call for giving of the redemption thereofnotice, as the case may be, if at said the date of declaration or call for notice, the dividend or redemption such payment would have complied with the provisions of this Indenture;
(ii2) the making of any Restricted Payment in exchange for, or out of or with the net cash proceeds of the substantially concurrent sale (other than to a Subsidiary of the Company) of, Equity Interests of the Company (other than any Disqualified InterestsStock) or from a 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 redemption, Restricted Payment will be excluded from Section 4.07(a)(4)(c)(ii) and will not be considered to be net cash proceeds from an Equity Offering for purposes of Section 3.07 hereof;
(3) the repurchase, retirementredemption, defeasance or other acquisition shall be excluded from Section 4.07(a)(C)(2);
(iii) the defeasance, redemption, repurchase, replacement, extension, renewal, refinancing or retirement for value of Indebtedness of the Company, or other acquisition of any Guarantor that is contractually subordinated Indebtedness to the Notes or Disqualified Interests in exchange for or to any Note Guarantee with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness;
(iv4) the declarationso long as no Default or Event of Default has occurred and is continuing, or payment of any dividend or other distribution 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 Restricted Subsidiary or any direct or indirect parent entity of the Company held by any current or former officer, director, employee, employee or consultant or agent of the Company or any of its Restricted Subsidiaries (or Heirs any direct or other permitted transferees thereof) upon deathindirect parent entity of the Company pursuant to any equity subscription agreement, disability, retirement, severance or termination of employment or service or in connection with a stock option plan or agreement, shareholders agreementrestricted stock grant, shareholders’ agreement or similar agreement, plan or arrangement, including amendments thereto; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may not exceed: (A) exceed $10.0 15.0 million in the aggregate in any calendar year, twelve-month period (increasing to $30.0 million following an underwritten public Equity Offering) with unused amounts being available carried over to be used in any later calendar yearsucceeding twelve-month periods subject to a maximum of $30.0 million (increasing to $60.0 million following an underwritten public Equity Offering); provided and provided, further, that such amount in any calendar year twelve-month period may be increased in by an amount not to exceed the net cash proceeds from the sale of Equity Interests (other than Disqualified Interests) of the Company to any officer, director, employee or agent of the Company or any a Restricted Subsidiary received by the Company or a Restricted Subsidiary during such twelve-month period, in each case to members of management, directors or consultants of the Company that occurs after the date Company, any of this Indenture, its Restricted Subsidiaries or any of its direct or indirect parent entities to the extent such net the cash proceeds from the sale of Equity Interests have not otherwise been applied to make the making of Restricted Payments pursuant to Section 4.07(a)(C)(2); plus (B4.07(a)(4)(c) the cash proceeds of key man life insurance policies received by the Company and its Restricted Subsidiaries after the date or Section 4.07(b)(2) of this Indenture that are used for paragraph or to an optional redemption of the repurchase, redemption or other acquisition or retirement for value owned by the individual (or such individual’s estate) that is the subject of such insuranceNotes pursuant to Section 3.07 hereof;
(vi5) the repurchase of Equity Interests deemed to occur upon the exercise of options, warrants or other convertible securities stock options to the extent such Equity Interests represent a portion of the exercise price of those stock options;
(6) so long as no Default or Event of Default has occurred and is continuing, warrants 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 preferred stock of any Restricted Subsidiary issued on or after the Issue Date in accordance with Section 4.09 hereof;
(7) payments of cash, dividends, distributions, advances or other convertible securities and Restricted Payments by the Company or any of its Restricted Subsidiaries to allow the payment of cash payments in lieu of the issuance of fractional shares in connection with upon (i) the exercise of options, warrants, options or other convertible securitieswarrants or (ii) the conversion or exchange of Capital Stock of any such Person;
(viii) the payment of any dividend (or, in the case of any partnership or limited liability company, any similar distribution) by a Restricted Subsidiary (other than a Xxxxx Act Compliant Entity) to the holders of its Equity Interests (other than the Company or any Restricted Subsidiary) on no more than a pro rata basis or (ii) the payment of any dividend (or, in the case of any partnership or limited liability company, any similar distribution) by a Xxxxx Act Compliant Entity to the holders of its Equity Interests (other than the Company or any Restricted Subsidiary) in an aggregate amount not to exceed in any calendar year $2.0 million per passenger cruise vessel owned by or contracted to be owned by such Xxxxx Act Compliant Entity;
(9) the declaration and payment of regular quarterly dividends on the Company’s common Equity Interests in accordance with past practice and not (or the payment of dividends to exceed $0.05 per share;
(viii) additional Restricted Payments not any parent entity to exceed $150.0 million after August 27fund a payment of dividends on such parent entity’s common Equity Interests), 2012;
(ix) following the repurchase first public offering of the Company’s common Equity Interests or the common Equity Interests of any parent entity after the Issue Date, in an amount not to exceed $50.0 million after August 276.00% per annum of the net cash proceeds received by or contributed to the Company in or from any such public offering, 2012other than public offerings with respect to the Company’s or such parent entity’s common Equity Interests registered on Form S-4 or Form S-8;
(x10) distributions so long as no Default or payments Event of Securitization Fees Default has occurred and purchases of Securitization Assets pursuant to a Securitization Repurchase Obligation in connection with a Qualified Securitization Financingis continuing, any Designated Proceeds Restricted Payment;
(xi11) any payments made in connection with the consummation declaration and payment of regularly scheduled or accrued dividends to holders of preferred stock of the transactions on substantially Company issued prior to the terms described Issue Date in the Offering Memoranduman aggregate amount not to exceed $150,000 in any calendar year;
(xii12) the payment of intercompany subordinated debta dividend to Parent in an aggregate amount not to exceed $175 million, plus any amounts necessary to pay unpaid interest, premiums, fees, expenses or other amounts in connection with any redemption; the incurrence proceeds of which was permitted under Section 4.09(b)(vi);shall be used by Parent to fund the redemption of all of its outstanding 8.625% / 9.375% Senior PIK Toggle Notes due 2018, which redemption occurred on August 21, 2014; or
(xiii13) so long as no Default or Event of Default has occurred and is continuing, other Restricted Payments in an aggregate amount taken together with all other Restricted Payments made pursuant to this clause (13) not to exceed (as of the date any such Restricted Payment is made) the purchase greater of fractional shares by the Company upon conversion (i) $50.0 million and (ii) 1.0% of any securities Total Tangible Assets of the Company into Capital Interests of for the Company;
(xiv) the repurchase, redemption or other acquisition or retirement for value of subordinated Indebtedness or Disqualified Interests pursuant to the provisions similar to those described under Section 4.14 and Section 4.10; provided that all Notes tendered by Holders of the Notes in connection with the related Change of Control Offer or Asset Sale Offer, as applicable, have been repurchased, redeemed or acquired for value in full; and
(xv) payment of dividends on Disqualified Interests of the Company or a Restricted Subsidiary, the issuance of which is permitted by this Indenturemost recently ended Calculation Period.
(c) 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 or, at the Company’s election, the date a commitment is made to make such 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 .
(d) For purposes of any non-cash Restricted Payment shall be determined by an officer of the Company. In determining compliance with this covenant, in the event that a proposed Restricted Payment (or a portion thereof) meets the criteria of more than one of the exceptions described in clauses (i1) through (xv13) above of Section 4.07(b) or is entitled to be made pursuant to the first paragraph of this covenant, covenant or one or more clauses in the definition of “Permitted Investments,” the Company may, in its sole discretion, classify, and may will be entitled to divide or classify or later divide or reclassify from time to time, (based on circumstances existing on the date of such reclassification) such Restricted Payment (or portion thereof) among such clauses (1) through (13), the definition of “Permitted Investments” and such first paragraph in a manner that complies with this covenant; provided that if any portion thereof into Investment pursuant to clause (13) above or among clause (17) of the definition of “Permitted Investments” is made in any Person that is not a Restricted Subsidiary and such Person subsequently becomes a Restricted Subsidiary or is subsequently designated a Restricted Subsidiary pursuant to Section 4.20 hereof, such Investment, if applicable, shall thereafter be deemed to have been made pursuant to clause (1) or (3) of the definition of “Permitted Investments” and not such applicable provisionsclause.
Appears in 2 contracts
Samples: Indenture (Viking Holdings LTD), Indenture (Viking Holdings 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 (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 (A) dividends or distributions accrued or payable (x) in Equity Interests (other than Disqualified InterestsStock) of the Company or (By) dividends or distributions to the Company or a Restricted Subsidiary of the Company);
(ii2) 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 the Company or any Restricted Subsidiary of the Company (other than any such Equity Interests owned by the Company or any Restricted Subsidiary of the Company);
(iii3) 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 to (excluding (i) any intercompany Indebtedness between or among the Notes or Company and any Note Guarantee (other than Indebtedness permitted under clause (vi) Restricted Subsidiary of the definition of “Permitted Debt”) except (a) a payment of interest or principal at Stated Maturity Company or (bii) the purchase, repurchase redemption or other acquisition of any such Subordinated Indebtedness purchased in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case, case due within one year of the date of such purchase, repurchase or other acquisition) except at the Stated Maturity thereof; or
(iv4) make any Restricted Investment (all such payments and other actions set forth in this clause (4) and clauses (i1) through (iv3) above being collectively referred to as “Restricted Payments”).
(b) Notwithstanding paragraph (a) of this Section 5.11, unlessthe Company shall be permitted to engage in, and to cause or allow any of its Restricted Subsidiaries to engage in, a Restricted Payment, so long as, 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;; 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 foureight-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 Section 4.09(a)5.09(a) hereof; and
(C3) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after August 279, 2012 2001 (excluding Restricted Payments permitted by clauses (i) (provided that at the time of declaring such dividend, such dividend was counted as a Restricted Payment) (ii2), (iii3), (iv4), (v), (vi), (vii), (viii), (ix), (x), (xi), (xii), (xiii), (xiv9) and (xv10) of paragraph (c) of this Section 4.07(b)), 5.11) is less than the sum, without duplication, of
of (1A) 50% of the Consolidated Net Income of the Company for the period (taken as one accounting period) from April 2July 1, 2012 2001 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
(2) 100% of the aggregate net proceeds, including the fair market value of any property or Capital Interests, received by the Company since August 27, 2012 as a contribution to its equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified Interests) or from the issue or sale of Disqualified Interests or debt securities of the Company that have been converted into such Equity Interests (other than Equity Interests (or Disqualified Interests or convertible debt securities) sold to a Subsidiary of the Company), together with the aggregate cash and Cash Equivalents received by the Company or any of its Restricted Subsidiaries at the time of such conversion or exchange plus the amount by which Indebtedness of the Company and its Restricted Subsidiaries is reduced upon the conversion or exchange subsequent to August 27, 2012 of any Indebtedness or Disqualified Interests which are convertible into or exchangeable for Qualified Capital Interests of the Company or any of its Restricted Subsidiaries, plus
(3) 100% of the amount received, including the fair market value of any property received after August 27, 2012 by means of (A) the sale or other disposition (other than to the Company or a Restricted Subsidiary) of Restricted Investments made by the Company or its Restricted Subsidiaries and repurchases and redemptions of such Restricted Investments from the Company or its Restricted Subsidiaries and repayments of loans or advances which constitute Restricted Investments of the Company or its Restricted Subsidiaries or (B) the sale (other than to the Company or a Restricted Subsidiary) of the Capital Interests of an Unrestricted Subsidiary or a distribution from an Unrestricted Subsidiary (other than in each case to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment) or a dividend from an Unrestricted Subsidiary, plus
(4) in the case of the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary or the merger or consolidation of an Unrestricted Subsidiary into the Company or a Restricted Subsidiary or the transfer of assets of an Unrestricted Subsidiary to the Company or a Restricted Subsidiary, the fair market value of the Investment in such Unrestricted Subsidiary (other than an Unrestricted Subsidiary to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment), plus
(5) $141.0 million. The Board of Directors 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 in the Subsidiary so designated will be deemed to be Restricted Payments or Permitted Investments, in the Company’s discretion, at the time of such designation and will reduce the amount available for Restricted Payments or Permitted Investments, as applicable. 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 Payments or Permitted Investments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary.
(b) Section 4.07(a) shall not prohibit:
(i) the payment of any dividend or other distribution or redemption within 60 days after the date of declaration or call for redemption thereof, if at said date of declaration or call for redemption such payment would have complied with the provisions of this Indenture;
(ii) the making of any Restricted Payment in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Subsidiary of the Company) of, Equity Interests of the Company (other than any Disqualified Interests) or from a contribution of capital to the Company; 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 Section 4.07(a)(C)(2);
(iii) the defeasance, redemption, repurchase, replacement, extension, renewal, refinancing or retirement or other acquisition of subordinated Indebtedness or Disqualified Interests in exchange for or with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness;
(iv) the declaration, or payment of any dividend or other distribution 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 current or former officer, director, employee, consultant or agent of Company or any of its Restricted Subsidiaries (or Heirs or other permitted transferees thereof) upon death, disability, retirement, severance or termination of employment or service or in connection with a stock option plan or agreement, shareholders agreement, or similar agreement, plan or arrangement, including amendments thereto; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may not exceed: (A) $10.0 million in any calendar year, with unused amounts being available to be used in any later calendar year; provided that such amount in any calendar year may be increased in an amount not to exceed the net cash proceeds from the sale of Equity Interests (other than Disqualified Interests) of the Company to any officer, director, employee or agent of the Company or any Subsidiary of the Company that occurs after the date of this Indenture, to the extent such net cash proceeds have not otherwise been applied to make Restricted Payments pursuant to Section 4.07(a)(C)(2); plus (B) the cash proceeds of key man life insurance policies received by the Company and its Restricted Subsidiaries after the date of this Indenture that are used for the repurchase, redemption or other acquisition or retirement for value owned by the individual (or such individual’s estate) that is the subject of such insurance;
(vi) the repurchase of Equity Interests deemed to occur upon the exercise of options, warrants or other convertible securities to the extent such Equity Interests represent a portion of the exercise price of those options, warrants or other convertible securities and cash payments in lieu of the issuance of fractional shares in connection with the exercise of options, warrants, or other convertible securities;
(vii) the declaration and payment of regular quarterly dividends on the Company’s Equity Interests in accordance with past practice and not to exceed $0.05 per share;
(viii) additional Restricted Payments not to exceed $150.0 million after August 27, 2012;
(ix) the repurchase of the Company’s Equity Interests in an amount not to exceed $50.0 million after August 27, 2012;
(x) distributions or payments of Securitization Fees and purchases of Securitization Assets pursuant to a Securitization Repurchase Obligation in connection with a Qualified Securitization Financing;
(xi) any payments made in connection with the consummation of the transactions on substantially the terms described in the Offering Memorandum;
(xii) the payment of intercompany subordinated debt, the incurrence of which was permitted under Section 4.09(b)(vi);
(xiii) the purchase of fractional shares by the Company upon conversion of any securities of the Company into Capital Interests of the Company;
(xiv) the repurchase, redemption or other acquisition or retirement for value of subordinated Indebtedness or Disqualified Interests pursuant to the provisions similar to those described under Section 4.14 and Section 4.10; provided that all Notes tendered by Holders of the Notes in connection with the related Change of Control Offer or Asset Sale Offer, as applicable, have been repurchased, redeemed or acquired for value in full; and
(xv) payment of dividends on Disqualified Interests of the Company or a Restricted Subsidiary, the issuance of which is permitted by this Indenture.
(c) 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 Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall be determined by an officer of the Company. In the event that a Restricted Payment meets the criteria of more than one of the exceptions described in (i) through (xv) above or is entitled to be made pursuant to the first paragraph of this covenant, the Company may, in its sole discretion, classify, and may later reclassify from time to time, such Restricted Payment or any portion thereof into or among any of such applicable provisions.
Appears in 2 contracts
Samples: First Supplemental Indenture (Pilgrims Pride Corp), First Supplemental Indenture (Pilgrims Pride Corp)
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 's or any of its Restricted Subsidiaries’ Subsidiary's Equity Interests (includingInterests, without limitation, including any payment dividend or distribution payable 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 (A) dividends or distributions accrued or by the Company payable in Equity Interests (other than Disqualified InterestsStock) of the Company or (B) dividends or distributions to by a Restricted Subsidiary so long as, in the case of any dividend or distribution payable on or in respect of any class or series of securities issued by a Restricted Subsidiary other than a Wholly-Owned Subsidiary, the Company or a Restricted Subsidiary receives at least its pro rata share of the Company)such dividend or distribution in accordance with its Equity Interests in such class or series of securities;
(ii2) 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 the Company (other than any such Equity Interests owned by the Company or any Restricted Subsidiary of the Company);
(iii3) make any principal payment on or with respect toon, or purchaseredeem, redeemrepurchase, defease or otherwise acquire or retire for value in each case, prior to any scheduled repayment, sinking fund payment or maturity, any Subordinated Indebtedness that is subordinated to of the Notes Company or any Note Guarantee (a Guarantor, other than (x) Indebtedness permitted under clause (viSection 4.09(b)(7) of the definition of “Permitted Debt”or Section 4.09(b)(8) except (a) a payment of interest or principal at Stated Maturity or (by) the purchase, repurchase or other acquisition of Subordinated Indebtedness of the Company or any such Indebtedness Restricted Subsidiary purchased in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case, case due within one year of the date of such purchase, repurchase or other acquisition; or
(iv4) make any Restricted Investment (all such payments and other actions set forth in these clauses (i1) through (iv4) 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) immediately after giving effect to such transaction on a pro forma basis, 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 could incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in under Section 4.09(a)) hereof; and
(Ciii) such Restricted Payment, together with the aggregate amount amount, without duplication, of all other Restricted Payments made by the Company and its Restricted Subsidiaries after August 27, 2012 (excluding Restricted Payments permitted by clauses (isince the Issue Date pursuant to this Section 4.07(a) (provided that at the time of declaring such dividend, such dividend was counted as a Restricted Payment) (iior Sections 4.07(b)(1), (iiib)(2) (with respect to the payment of dividends on Refunding Capital Stock pursuant to subclause (b) thereof only), (iv), (v), (vi), (vii), (viii), (ix), (x), (xi), (xii), (xiii), (xivb)(6)(c) and (xv11) (and excluding, for the avoidance of doubt, all other Restricted Payments made pursuant to Section 4.07(b)), is less than the sum, without duplication, of:
(1) 50% of the Consolidated Net Income of the Company for the period (taken as one accounting period) from April 2beginning on July 1, 2012 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 the Retained Basket Amount; plus
(2) 100% of the aggregate net proceeds, including cash proceeds and the fair market value value, as determined in good faith by the Company, of any marketable securities or other property or Capital Interests, received by the Company since August 27after the Issue Date (less the amount of such net cash proceeds to the extent such amount has been relied upon to permit the incurrence of Indebtedness, 2012 as a contribution or issuance of Disqualified Stock or Preferred Stock pursuant to its equity capital or Section 4.09(b)(20)(b) hereof) from the issue or sale of Equity Interests of the Company (other than Disqualified Interests) or from the issue or sale of Disqualified Interests or debt securities of the Company that have been converted into such Equity Interests (other than Equity Interests (or Disqualified Interests or convertible debt securities) sold to a Subsidiary of the Company), together with the aggregate cash and Cash Equivalents received by the Company or any of its Restricted Subsidiaries at the time of such conversion or exchange plus the amount by which Indebtedness of the Company and its Restricted Subsidiaries is reduced upon the conversion or exchange subsequent to August 27, 2012 of any Indebtedness or Disqualified Interests which are convertible into or exchangeable for Qualified Capital Interests of the Company or any of its Restricted Subsidiaries, plus
(3) 100% of the amount received, including the fair market value of any property received after August 27, 2012 by means of (A) the sale or other disposition (other than to the Company or a Restricted Subsidiary) of Restricted Investments made by the Company or its Restricted Subsidiaries and repurchases and redemptions of such Restricted Investments from the Company or its Restricted Subsidiaries and repayments of loans or advances which constitute Restricted Investments of the Company or its Restricted Subsidiaries or (B) the sale (other than to the Company or a Restricted Subsidiary) of the Capital Interests of an Unrestricted Subsidiary or a distribution from an Unrestricted Subsidiary (other than in each case to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment) or a dividend from an Unrestricted Subsidiary, plus
(4) in the case of the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary or the merger or consolidation of an Unrestricted Subsidiary into the Company or a Restricted Subsidiary or the transfer of assets of an Unrestricted Subsidiary to the Company or a Restricted Subsidiary, the fair market value of the Investment in such Unrestricted Subsidiary (other than an Unrestricted Subsidiary to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment), plus
(5) $141.0 million. The Board of Directors 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 in the Subsidiary so designated will be deemed to be Restricted Payments or Permitted Investments, in the Company’s discretion, at the time of such designation and will reduce the amount available for Restricted Payments or Permitted Investments, as applicable. 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 Payments or Permitted Investments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary.
(b) Section 4.07(a) shall not prohibitof:
(i) the payment of any dividend or other distribution or redemption within 60 days after the date of declaration or call for redemption thereof, if at said date of declaration or call for redemption such payment would have complied with the provisions of this Indenture;
(ii) the making of any Restricted Payment in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Subsidiary of the Company) of, Equity Interests of the Company (other than any Disqualified Interests) or from a contribution of capital to the Company; 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 Section 4.07(a)(C)(2);
(iii) the defeasance, redemption, repurchase, replacement, extension, renewal, refinancing or retirement or other acquisition of subordinated Indebtedness or Disqualified Interests in exchange for or with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness;
(iv) the declaration, or payment of any dividend or other distribution 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 current or former officer, director, employee, consultant or agent of Company or any of its Restricted Subsidiaries (or Heirs or other permitted transferees thereof) upon death, disability, retirement, severance or termination of employment or service or in connection with a stock option plan or agreement, shareholders agreement, or similar agreement, plan or arrangement, including amendments thereto; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may not exceed: (A) $10.0 million in any calendar year, with unused amounts being available to be used in any later calendar year; provided that such amount in any calendar year may be increased in an amount not to exceed the net cash proceeds from the sale of Equity Interests (other than Disqualified Interests) of the Company to any officer, director, employee or agent of the Company or any Subsidiary of the Company that occurs after the date of this Indenture, to the extent such net cash proceeds have not otherwise been applied to make Restricted Payments pursuant to Section 4.07(a)(C)(2); plus (B) the cash proceeds of key man life insurance policies received by the Company and its Restricted Subsidiaries after the date of this Indenture that are used for the repurchase, redemption or other acquisition or retirement for value owned by the individual (or such individual’s estate) that is the subject of such insurance;
(vi) the repurchase of Equity Interests deemed to occur upon the exercise of options, warrants or other convertible securities to the extent such Equity Interests represent a portion of the exercise price of those options, warrants or other convertible securities and cash payments in lieu of the issuance of fractional shares in connection with the exercise of options, warrants, or other convertible securities;
(vii) the declaration and payment of regular quarterly dividends on the Company’s Equity Interests in accordance with past practice and not to exceed $0.05 per share;
(viii) additional Restricted Payments not to exceed $150.0 million after August 27, 2012;
(ix) the repurchase of the Company’s Equity Interests in an amount not to exceed $50.0 million after August 27, 2012;
(x) distributions or payments of Securitization Fees and purchases of Securitization Assets pursuant to a Securitization Repurchase Obligation in connection with a Qualified Securitization Financing;
(xi) any payments made in connection with the consummation of the transactions on substantially the terms described in the Offering Memorandum;
(xii) the payment of intercompany subordinated debt, the incurrence of which was permitted under Section 4.09(b)(vi);
(xiii) the purchase of fractional shares by the Company upon conversion of any securities of the Company into Capital Interests of the Company;
(xiv) the repurchase, redemption or other acquisition or retirement for value of subordinated Indebtedness or Disqualified Interests pursuant to the provisions similar to those described under Section 4.14 and Section 4.10; provided that all Notes tendered by Holders of the Notes in connection with the related Change of Control Offer or Asset Sale Offer, as applicable, have been repurchased, redeemed or acquired for value in full; and
(xv) payment of dividends on Disqualified Interests of the Company or a Restricted Subsidiary, the issuance of which is permitted by this Indenture.
(c) 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 Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall be determined by an officer of the Company. In the event that a Restricted Payment meets the criteria of more than one of the exceptions described in (i) through (xv) above or is entitled to be made pursuant to the first paragraph of this covenant, the Company may, in its sole discretion, classify, and may later reclassify from time to time, such Restricted Payment or any portion thereof into or among any of such applicable provisions.
Appears in 2 contracts
Samples: Indenture (Harland Clarke Holdings Corp), Indenture (Harland Clarke Holdings Corp)
Restricted Payments. (a) 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 '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 SubsidiariesCompany) or to the direct or indirect holders of the Company’s 's or any of its Restricted Subsidiaries’ ' Equity Interests in their capacity as such (other than (A) dividends or distributions accrued or payable in Equity Interests (other than Disqualified InterestsStock) of the Company or (B) dividends or distributions to by a Restricted Subsidiary so long as, in the case of any dividend or distribution payable on or in respect of any class or series of securities issued by a Restricted Subsidiary other than a Wholly Owned Restricted Subsidiary, the Company or a Restricted Subsidiary receives at least its pro rata share of the Companysuch dividend or distribution in accordance with its Equity Interests in such class or series of securities);
; (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 the Company (other than any such Equity Interests owned by the Company or any Restricted Subsidiary of the Company);
; (iii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness that is subordinated to the Notes or any Note Guarantee (other than Indebtedness permitted under clause (vi) of the definition of “Permitted Debt”) except (a) a payment of interest or principal at Stated Maturity Maturity; or (b) the purchase, repurchase or other acquisition of any such Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case, due within one year of the date of such purchase, repurchase or other acquisition; or
(iv) make any Restricted Investment (all such payments and other actions set forth in clauses (i) through (iv) 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;; and
(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 Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 4.09(a)4.09; and
(Cc) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after August 27since April 30, 2012 1997 (excluding Restricted Payments permitted by clauses (iii) (provided that at the time of declaring such dividend, such dividend was counted as a Restricted Payment) (ii), (iii), (iv), (v), (vi), (vii), through (viii), (ix), (x), (xi), (xii), (xiii), (xiv) and (xv) of Section 4.07(b)the next succeeding paragraph or of the kind contemplated by such clauses that were made prior to the date of this Indenture), is less than the sum, without duplication, of
sum of (1i) 50% of the Consolidated Net Income of the Company for the period (taken as one accounting period) from April 2July 1, 2012 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
plus (2ii) 100% of the aggregate net proceeds, including the fair market value of any property or Capital Interests, cash proceeds received by the Company since August 27April 30, 2012 1997 as a contribution to its common equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified InterestsStock) or from the issue or sale of Disqualified Interests Stock or debt securities of the Company that have been converted into such Equity Interests (other than Equity Interests (or Disqualified Interests Stock or convertible debt securities) sold to a Subsidiary of the CompanyCompany and other than Disqualified Stock or convertible debt securities that have been converted into Disqualified Stock), together with plus (iii) to the aggregate extent that any Restricted Investment that was made after April 30, 1997 is sold for cash and Cash Equivalents received by the Company or any of its Restricted Subsidiaries at the time of such conversion otherwise liquidated or exchange plus repaid for cash, the amount by which Indebtedness of cash received in connection therewith (or from the sale of Marketable Securities received in connection therewith), plus (iv) to the extent not already included in such Consolidated Net Income of the Company for such period and its Restricted Subsidiaries is reduced upon the conversion or exchange subsequent to August 27without duplication, 2012 of any Indebtedness or Disqualified Interests which are convertible into or exchangeable for Qualified Capital Interests of the Company or any of its Restricted Subsidiaries, plus
(3A) 100% of the aggregate amount received, including the fair market value of any property cash received after August 27, 2012 by means of (A) the sale or other disposition (other than to the Company or a Restricted Subsidiary) of Restricted Investments made by the Company or its Restricted Subsidiaries and repurchases and redemptions of such Restricted Investments from the Company or its Restricted Subsidiaries and repayments of loans or advances which constitute Restricted Investments of the Company or its Restricted Subsidiaries or (B) the sale (other than to the Company or a Restricted Subsidiary) of the Capital Interests of an Unrestricted Subsidiary or a distribution from an Unrestricted Subsidiary (other than in each case to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment) or as a dividend from an Unrestricted Subsidiary, plus
(4B) in the case 100% of the redesignation cash received upon the sale of an Unrestricted Subsidiary Marketable Securities received as a Restricted Subsidiary or the merger or consolidation of an Unrestricted Subsidiary into the Company or a Restricted Subsidiary or the transfer of assets of an Unrestricted Subsidiary to the Company or a Restricted Subsidiary, the fair market value of the Investment in such Unrestricted Subsidiary (other than an Unrestricted Subsidiary to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment), plus
(5) $141.0 million. The Board of Directors 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 in the Subsidiary so designated will be deemed to be Restricted Payments or Permitted Investments, in the Company’s discretion, at the time of such designation and will reduce the amount available for Restricted Payments or Permitted Investments, as applicable. 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 Payments or Permitted Investments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of dividend from an Unrestricted Subsidiary.
, and (bC) Section 4.07(a) shall not prohibit:
(i) the payment of any dividend or other distribution or redemption within 60 days after the date of declaration or call for redemption thereof, if at said date of declaration or call for redemption such payment would have complied with the provisions of this Indenture;
(ii) the making of any Restricted Payment in exchange for, or out 100% of the net cash proceeds of the substantially concurrent sale (other than to a Subsidiary of the Company) of, Equity Interests of the Company (other than any Disqualified Interests) or from a contribution of capital to the Company; provided that the amount assets of any such net cash proceeds that are utilized for any such redemption, repurchase, retirement, defeasance or other acquisition shall be excluded from Section 4.07(a)(C)(2);
(iii) the defeasance, redemption, repurchase, replacement, extension, renewal, refinancing or retirement or other acquisition of subordinated Indebtedness or Disqualified Interests in exchange for or with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness;
(iv) the declaration, or payment of any dividend or other distribution by a Unrestricted 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 current or former officer, director, employee, consultant or agent of Company or any of its Restricted Subsidiaries (or Heirs or other permitted transferees thereof) upon death, disability, retirement, severance or termination of employment or service or in connection with a stock option plan or agreement, shareholders agreement, or similar agreement, plan or arrangement, including amendments thereto; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may not exceed: (A) $10.0 million in any calendar year, with unused amounts being available to be used in any later calendar year; provided that such amount in any calendar year may be increased in an amount not to exceed the net cash proceeds from the sale of Equity Interests (other than Disqualified Interests) of the Company to any officer, director, employee or agent of the Company or any Subsidiary of the Company that occurs after the date of this Indenture, to the extent such net cash proceeds have not otherwise been applied to make Restricted Payments pursuant to Section 4.07(a)(C)(2); plus (B) the cash proceeds of key man life insurance policies received by the Company and its Restricted Subsidiaries after the date of this Indenture that are used for the repurchase, redemption or other acquisition or retirement for value owned by the individual (or such individual’s estate) that is the subject of such insurance;
(vi) the repurchase of Equity Interests deemed to occur upon the exercise of options, warrants or other convertible securities to the extent such Equity Interests represent a portion of the exercise price of those options, warrants or other convertible securities and cash payments in lieu of the issuance of fractional shares in connection with the exercise of options, warrants, or other convertible securities;
(vii) the declaration and payment of regular quarterly dividends on the Company’s Equity Interests in accordance with past practice and not to exceed $0.05 per share;
(viii) additional Restricted Payments not to exceed $150.0 million after August 27, 2012;
(ix) the repurchase of the Company’s Equity Interests in an amount not to exceed $50.0 million after August 27, 2012;
(x) distributions or payments of Securitization Fees and purchases of Securitization Assets pursuant to a Securitization Repurchase Obligation in connection with a Qualified Securitization Financing;
(xi) any payments made in connection with the consummation of the transactions on substantially the terms described in the Offering Memorandum;
(xii) the payment of intercompany subordinated debt, the incurrence of which was permitted under Section 4.09(b)(vi);
(xiii) the purchase of fractional shares by the Company upon conversion of any securities of the Company into Capital Interests of the Company;
(xiv) the repurchase, redemption or other acquisition or retirement for value of subordinated Indebtedness or Disqualified Interests pursuant to the provisions similar to those described under Section 4.14 and Section 4.10; provided that all Notes tendered by Holders of the Notes in connection with the related Change of Control Offer or Asset Sale Offer, as applicable, have been repurchased, redeemed or acquired for value in full; and
(xv) payment of dividends on Disqualified Interests of the Company or a Restricted Subsidiary, the issuance of which is permitted by this Indenture.
(c) 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 Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall be determined by an officer of the Company. In the event that a Restricted Payment meets the criteria of more than one of the exceptions described in (i) through (xv) above or is entitled to be made pursuant to the first paragraph of this covenant, the Company may, in its sole discretion, classify, and may later reclassify from time to time, such Restricted Payment or any portion thereof into or among any of such applicable provisions.it becomes a
Appears in 2 contracts
Samples: Indenture (L 3 Communications Holdings Inc), Indenture (Eer Systems Inc)
Restricted Payments. (a) The Company shall Issuer 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 CompanyIssuer’s or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company Issuer or any of its Restricted Subsidiaries) or to the direct or indirect holders of the CompanyIssuer’s or any of its Restricted Subsidiaries’ Equity Interests in their capacity as such (other than (A) dividends or distributions accrued or payable in Equity Interests (Interests, other than Disqualified Interests) Stock, of the Company or (B) Issuer and other than dividends or distributions payable to the Company Issuer or a Restricted Subsidiary of the CompanyIssuer);
(ii2) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the CompanyIssuer) any Equity Interests of the Company or any direct or indirect parent of the Company (other than any such Equity Interests owned by the Company or any Restricted Subsidiary of the Company)Issuer;
(iii3) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value value, any Indebtedness of the Issuer or any Guarantor that is contractually subordinated to the Notes or to any Note Guarantee (other than excluding (x) any intercompany Indebtedness permitted under clause (vi) between or among the Issuer and any of the definition of “Permitted Debt”) except (a) a payment of interest or principal at Stated Maturity its Restricted Subsidiaries or (by) the purchase, repurchase repurchase, or other acquisition of Indebtedness that is contractually subordinated to the notes or to any such Indebtedness Note Guarantee, as the case may be, purchased in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case, case due within one year of the date of such purchase, repurchase or other acquisition), except a payment of interest or principal at the Stated Maturity thereof; or
(iv4) make any Restricted Investment (all such payments and other actions set forth in these clauses (i1) through (iv4) 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 has occurred and be is continuing or would occur as a consequence thereofof such Restricted Payment;
(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 Fixed Charge Coverage Ratio test set forth in Section 4.09(a4.07(a); and
(C) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company Issuer and its Restricted Subsidiaries after August 27, 2012 since the date of this Indenture (excluding Restricted Payments permitted by clauses (i2) through (provided that at the time of declaring such dividend, such dividend was counted as a Restricted Payment) (ii), (iii), (iv), (v), (vi), (vii), (viii), (ix), (x), (xi), (xii), (xiii), (xiv) and (xv20) of Section 4.07(b4.05(b)), is less than the sum, without duplication, of:
(1i) 50% of the Consolidated Net Income of the Company Issuer for the period (taken as one accounting period) from the beginning of April 21, 2012 2011 to the end of the CompanyIssuer’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
(2ii) 100% of the aggregate net proceeds, including cash and the fair market value Fair Market Value of any property or Capital Interestsother than cash, received by the Company Issuer since August 27, 2012 as a contribution to its equity capital or the date of this Indenture from the issue or sale of Equity Interests of the Company Issuer (other than Disqualified InterestsStock, Designated Preferred Stock or Excluded Contributions) or from the issue or sale of convertible or exchangeable Disqualified Interests Stock or convertible or exchangeable debt securities of the Company that have been converted into or exchanged for such Equity Interests (other than Equity Interests (or Disqualified Interests Stock or convertible debt securities) sold to a Subsidiary of the CompanyIssuer), together with the aggregate cash and Cash Equivalents received by the Company or any of its Restricted Subsidiaries at the time of such conversion or exchange plus the amount by which Indebtedness of the Company and its Restricted Subsidiaries is reduced upon the conversion or exchange subsequent to August 27, 2012 of any Indebtedness or Disqualified Interests which are convertible into or exchangeable for Qualified Capital Interests of the Company or any of its Restricted Subsidiaries, ; plus
(3iii) to the extent that any Restricted Investment that was made after the date of this Indenture is sold for cash or otherwise liquidated or repaid for cash, 100% of the aggregate amount received in cash and the Fair Market Value of property other than cash received; plus
(iv) to the extent that any Unrestricted Subsidiary of the Issuer designated as such after the date of this Indenture is redesignated as a Restricted Subsidiary after the date of this Indenture or has been merged into, consolidated or amalgamated with or into, or transfers or conveys its assets to, the Issuer or a Restricted Subsidiary of the Issuer, 100% of the Fair Market Value of the Issuer’s Investment in such Subsidiary as of the date of such redesignation, combination or transfer (or of the assets transferred or conveyed, as applicable) after deducting any Indebtedness associated with the Unrestricted Subsidiary so designated or combined or any Indebtedness associated with the assets so transferred or conveyed; plus
(v) 100% of any dividends or distributions received by the amount received, including the fair market value of any property received after August 27, 2012 by means of (A) the sale or other disposition (other than to the Company Issuer or a Restricted Subsidiary) of Restricted Investments made by the Company or its Restricted Subsidiaries and repurchases and redemptions of such Restricted Investments from the Company or its Restricted Subsidiaries and repayments of loans or advances which constitute Restricted Investments Subsidiary of the Company or its Restricted Subsidiaries or (B) Issuer after the sale (other than to the Company or a Restricted Subsidiary) date of the Capital Interests of an Unrestricted Subsidiary or a distribution this Indenture from an Unrestricted Subsidiary (other than in each case of the Issuer, to the extent the Investment in that such Unrestricted Subsidiary constituted a Permitted Investment) dividends or a dividend from an Unrestricted Subsidiary, plus
(4) distributions were not otherwise included in the case Consolidated Net Income of the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary or the merger or consolidation of an Unrestricted Subsidiary into the Company or a Restricted Subsidiary or the transfer of assets of an Unrestricted Subsidiary to the Company or a Restricted Subsidiary, the fair market value of the Investment in Issuer for such Unrestricted Subsidiary (other than an Unrestricted Subsidiary to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment), plus
(5) $141.0 million. The Board of Directors 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 in the Subsidiary so designated will be deemed to be Restricted Payments or Permitted Investments, in the Company’s discretion, at the time of such designation and will reduce the amount available for Restricted Payments or Permitted Investments, as applicable. 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 Payments or Permitted Investments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiaryperiod.
(b) The provisions of Section 4.07(a4.05(a) shall hereof will not prohibit:
(i1) the payment of any dividend or other distribution or the consummation of any redemption within 60 days after the date of declaration of the dividend or call for distribution or giving of the redemption thereofnotice, if as the case may be, if, at said the date of declaration or call for notice, the dividend, distribution or redemption such payment would have complied with the provisions of this Indenture;
(ii2) the making of any Restricted Payment 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, Equity Interests of the Company Issuer (other than any Disqualified InterestsStock) or from a the substantially concurrent contribution of common equity capital to the CompanyIssuer; provided that the amount of any such net cash proceeds that are utilized for any such redemption, Restricted Payment will be excluded from clause (C)(ii) of Section 4.05(a) hereof;
(3) the repurchase, retirementredemption, defeasance or other acquisition shall be excluded from Section 4.07(a)(C)(2);
(iii) the defeasance, redemption, repurchase, replacement, extension, renewal, refinancing or retirement for value of Indebtedness of the Issuer or other acquisition of any Restricted Subsidiary that is contractually subordinated Indebtedness to the Notes or Disqualified Interests in exchange for or to any Note Guarantee with the net cash proceeds from an a substantially concurrent incurrence of Permitted Refinancing Indebtedness;
(iv4) the declaration, or payment of any dividend or other distribution Restricted Payment made by a Restricted Subsidiary of the Company Issuer to the holders of its common Equity Interests on a pro rata basis;
(v5) the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company Issuer or any Restricted Subsidiary of the Company Issuer held by any current or former officer, director, employee, consultant or agent employee of Company the Issuer or any of its Restricted Subsidiaries (or Heirs or other permitted transferees thereof) upon deathpursuant to the requirements of any equity subscription agreement, disability, retirement, severance or termination of employment or service or in connection with a stock option plan or agreement, shareholders agreement, shareholders’ or members’ agreement or similar agreement, plan or arrangement, including amendments thereto; provided that arrangement or otherwise in the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may not exceed: (A) $10.0 million in any calendar year, with unused amounts being available to be used in any later calendar year; provided that such amount in any calendar year may be increased in an amount not to exceed the net cash proceeds from the sale ordinary course of Equity Interests (other than Disqualified Interests) of the Company to any officer, director, employee or agent of the Company or any Subsidiary of the Company that occurs after the date of this Indenture, to the extent such net cash proceeds have not otherwise been applied to make Restricted Payments pursuant to Section 4.07(a)(C)(2); plus (B) the cash proceeds of key man life insurance policies received by the Company and its Restricted Subsidiaries after the date of this Indenture that are used for the repurchase, redemption or other acquisition or retirement for value owned by the individual (or such individual’s estate) that is the subject of such insurancebusiness;
(vi6) the repurchase of Equity Interests deemed to occur upon the exercise of options, warrants or other convertible securities stock options to the extent such Equity Interests represent a portion of the exercise price of those stock options, warrants or other convertible securities and cash payments in lieu of the issuance of fractional shares in connection with the exercise of options, warrants, or other convertible securities;
(vii7) the declaration and payment of regular quarterly regularly scheduled or accrued dividends or distributions to holders of any class or series of Disqualified Stock of the Issuer or any Restricted Subsidiary of the Issuer issued on or after the Company’s Equity Interests date of this Indenture in accordance with past practice and not to exceed $0.05 per sharethe Fixed Charge Coverage Ratio test described in Section 4.07 hereof;
(viii) additional 8) Restricted Payments not to exceed $150.0 million after August 27, 2012;
(ix) the repurchase arising as a result of the Company’s Equity Interests in an amount not to exceed $50.0 million after August 27, 2012;
(x) distributions or payments of Securitization Fees and purchases of Securitization Assets pursuant to a Securitization Repurchase Obligation in connection with a Qualified Securitization Receivables Financing;
(xi9) the declaration and payment of dividends or other distributions to holders of any class or series of Designated Preferred Stock (other than Disqualified Stock) issued after the date of this Indenture; provided, however, that (A) for the most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date of issuance of such Designated Preferred Stock, after giving effect to such issuance (and the payment of dividends or distributions) on a pro forma basis, the Issuer could incur an additional $1.00 of Indebtedness pursuant to the Fixed Charge Coverage Ratio, and (B) the aggregate amount of dividends declared and paid pursuant to this clause (9) does not exceed the net cash proceeds actually received by the Issuer from any such sale of Designated Preferred Stock (other than Disqualified Stock) issued after the date of this Indenture;
(10) any payments made or to be made in connection with the consummation of the transactions on substantially the terms described in the Offering MemorandumTransactions;
(xii11) Investments that are made with Excluded Contributions;
(12) other Restricted Payments in an aggregate amount not to exceed $650 million since the date of this Indenture;
(13) the satisfaction of change of control obligations once the Issuer has fulfilled its obligations under this Indenture with respect to a Change of Control;
(14) the repayment of intercompany debt that was permitted to be incurred under this Indenture;
(15) cash dividends or other distributions on the Issuer’s Capital Stock used to fund the payment of fees and expenses owed by the Issuer or its Restricted Subsidiaries to Affiliates, to the extent permitted by Section 4.09 hereof;
(16) the payment of intercompany subordinated debtdividends, distributions on or the repurchase of, the incurrence Issuer’s common equity of which was up to $200 million per calendar year (with unused amounts in any calendar year being permitted under Section 4.09(b)(vito be carried over for the next succeeding calendar year up to a maximum of $400 million in any calendar year);
(xiii17) the purchase repurchase, redemption, defeasance or other acquisition or retirement for value of Indebtedness of the Issuer or any Restricted Subsidiary that is contractually subordinated to the notes or to any Note Guarantee with any Excess Proceeds that remain after consummation of an Asset Sale Offer;
(18) cash payments in lieu of fractional shares by issuable as dividends on preferred stock or upon the Company upon conversion of any convertible debt securities of the Company into Capital Interests Issuer or any of the Companyits Restricted Subsidiaries;
(xiv19) the repurchase, redemption or other acquisition or retirement for value of subordinated Indebtedness Disqualified Stock of the Issuer or any Restricted Subsidiary of the Issuer made by exchange for, or out of the proceeds of, the substantially concurrent sale of Disqualified Interests Stock that is permitted to be incurred pursuant to the provisions similar to those described under Section 4.14 and Section 4.10; provided that all Notes tendered by Holders of the Notes in connection with the related Change of Control Offer or Asset Sale Offer, as applicable, have been repurchased, redeemed or acquired for value in full4.07; and
(xv20) payment the distribution, as a dividend or otherwise, of dividends on Disqualified Interests shares of Capital Stock of, or Indebtedness owed to the Company Issuer or a Restricted SubsidiarySubsidiary of the Issuer by, Unrestricted Subsidiaries; provided, however, that at the issuance time of, and after giving effect to, any Restricted Payment permitted under clauses (6) and (9), no Default or Event of which is permitted by this IndentureDefault shall have occurred and be continuing or would occur as a consequence thereof.
(c) 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 Issuer or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value .
(d) For purposes of any non-cash Restricted Payment shall be determined by an officer of determining compliance with the Company. In provisions set forth above, in the event that a Restricted Payment meets the criteria of more than one of the exceptions types of Restricted Payments described in (i) through (xv) the above or is entitled to be made pursuant to the first paragraph of this covenantclauses, the Company mayIssuer, in its sole discretion, may order and classify, and may later reclassify from time to timetime may reorder and reclassify, such Restricted Payment or if it would have been permitted at the time such Restricted Payment was made and at the time of any portion thereof into or among any of such applicable provisionsreclassification.
Appears in 2 contracts
Samples: Supplemental Indenture (Massey Energy Co), Supplemental Indenture (Alpha Natural Resources, Inc.)
Restricted Payments. (a) 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 (A) dividends or distributions accrued or payable in Equity Interests of the Company (other than Disqualified InterestsStock) of the Company or (B) 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 the Company (other than any such Equity Interests owned by the Company Company, a Wholly Owned Restricted Subsidiary or any Restricted Subsidiary of the CompanyGuarantor);
; (iii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness that is subordinated to the Notes Subordinated Indebtedness, except payments of interest or any Note Guarantee a payment of principal at Stated Maturity (other than (a) Indebtedness permitted under clause (vi) of the definition second paragraph of “Permitted Debt”Section 4.09 hereof and (b) except (a) a payment payments made of interest or principal at Stated Maturity or made by incurring Indebtedness permitted to be incurred pursuant to clauses (bxviii) the purchase, repurchase or other acquisition of any such Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case, due within one year and (xix) of the date second paragraph of such purchase, repurchase Section 4.09 hereof); or other acquisition; or
(iv) make any Restricted Investment Investment, (all such payments and other actions set forth in clauses (i) through (iv) 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 Fixed Charge Coverage Ratio test set forth in first paragraph of Section 4.09(a)4.09 hereof; and
(Cc) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after August 27, 2012 the date of this Indenture plus all Restricted Payments made since the Issue Date 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 (i) (provided that at the time of declaring such dividend, such dividend was counted as a Restricted Payment) (ii), (iii), (iv), (v), (vi), (vii), (viii), (ix), (x), (xi), (xii), (xiii), (xiv) and (xvxii) of Section 4.07(b))the next succeeding paragraph, is less than the sum, without duplication, of
(1i) 50% of the Consolidated Net Income After Grossed Up Preferred Stock Dividends of the Company for the period (taken as one accounting period) from April 2, 2012 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
(2ii) 100% of the aggregate net proceedscash proceeds and the Fair Market Value as determined by an independent third party appraiser, including accounting firm or valuation firm not affiliated with the fair market value Company of any real property or Capital Interests, securities constituting a controlling interest in any Person received by the Company since August 27, 2012 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 InterestsStock) or from the issue or sale (other than to a Restricted Subsidiary of the Company) of convertible or exchangeable Disqualified Interests Stock or convertible or exchangeable debt securities of the Company that have been converted into or exchanged for such Equity Interests (other than Disqualified Stock), plus
(iii) to the extent that any Restricted Investment, in whole or in part, is sold or otherwise liquidated or repaid, redeemed or repurchased, the sum of (A) 100% of such cash proceeds and the Fair Market Value of other assets that do not otherwise constitute a Restricted Investment (net of the 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 (B) 50% of such cash proceeds and the Fair Market Value of other assets that do not otherwise constitute a Restricted Investment in excess of the aggregate amount invested in such Restricted Investment, in each case, 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 the Issue Date from any Restricted Investment, to the extent that such dividends or cash distributions were not otherwise included in Consolidated Net Income of the Company for such period or in clause (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 the Issue Date, plus
(v) to the extent that any Unrestricted Subsidiary of the Company is redesignated as a Restricted Subsidiary after the date of this Indenture, the Fair Market Value of the Company’s Investment in such Unrestricted Subsidiary as of the date of such redesignation, plus
(vi) 100% of the reduction or release since the Issue Date of Indebtedness under Guarantees of the Company or any Restricted Subsidiary which are Restricted Investments, to the extent that such reduction or release is not due to any payment under such Guarantee, plus
(vii) $25.0 million. The preceding provisions shall not prohibit: (i) the payment of any dividend within 60 days after the date of declaration thereof, if at date of declaration, such payment would have complied with the provisions of this Indenture; (ii) 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 in exchange for, or out of the net cash proceeds of the substantially concurrent sale, issuance of or contribution for, (or Disqualified Interests or convertible debt securities) sold other than to a Restricted Subsidiary of the Company), together 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 payment, redemption, repurchase, retirement, defeasance, other acquisition or dividend or distribution shall be excluded from clause (c) of the preceding paragraph; (iii) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the defeasance, redemption, repurchase or other acquisition of Subordinated Indebtedness in exchange for, or with the net cash proceeds from an incurrence of, Permitted Refinancing Indebtedness; (iv) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, 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) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, 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 present, former or future employee, director or Consultant of the Company’s (or any of its Restricted Subsidiaries or any parent of the Company) pursuant to any management equity subscription agreement or stock option agreement in effect as of the date of this Indenture or any other similar agreement; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall not exceed $4.0 million in any twelve-month period (with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $8.0 million in any calendar year); provided that such amount in any calendar year may be increased by an amount not to exceed (A) the cash and Cash Equivalents received by proceeds from the sale of Equity Interests of the Company, any parent of the Company or any of its Restricted Subsidiaries at to present, former or future directors, Consultants or employees of the time of such conversion Company, its Restricted Subsidiaries or exchange plus the amount by which Indebtedness any parent of the Company and that occurred since the Issue Date (to the extent the cash proceeds from the sale of such Equity Interest have not otherwise been included in clause (c) of the immediately preceding paragraph), plus (B) the cash proceeds of key man life insurance policies received by the Company, its Restricted Subsidiaries is reduced upon or any parent of the conversion Company since the Issue Date; and provided that cancellation of Indebtedness owing to the Company from present, former or exchange subsequent future directors, Consultants, or employees of the Company, any of its Restricted Subsidiaries or any parent of the Company the proceeds of which were used solely to August 27, 2012 of any Indebtedness or Disqualified Interests which are convertible into or exchangeable for Qualified Capital purchase Equity Interests of the Company will not be deemed to constitute a Restricted Payment so long as the value of such Equity Interests issued did not increase clause (c) of the preceding paragraph; (vi) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, Restricted Investments made after the date of this Indenture having an aggregate Fair Market Value, taken together with all other Investments made pursuant to this clause (vi) and, without duplication, Investments made pursuant to the this clause (vi) and, without duplication, Investments made pursuant to the comparable clause of the indentures relating to the Existing Notes that are at that time outstanding (without giving effect to any of its Restricted Subsidiarieswrite-up, plus
(3) 100write-off or write-down), not to exceed 5% of the Company’s Consolidated Tangible Assets as of the end of the fiscal quarter most recently completed (with Fair Market Value of each Investment being measured at the time made and without giving effect to subsequent changes in value); (vii) 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; (viii) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the payment of dividends on the Company’s Capital Stock of up to 6% per annum of the net proceeds received by the Company in its March, 2002 initial public offering; (ix) Investments in Unrestricted Subsidiaries that are made with Excluded Contributions; (x) non-cash Investments in Unrestricted Subsidiaries in the form of administrative, financial, accounting, management, or other similar services (together with a non-cash allocation of corporate overhead), in each case in the ordinary course of business; (xi) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the payment of dividends on Disqualified Stock which is issued in accordance with Section 4.09 hereof; (xii) transactions contemplated by the offering memorandum dated July 8, 2008 in connection with the issuance of the Notes under the caption “Use of Proceeds” and (xiii) $50.0 million to repurchase Existing Notes. The amount receivedof 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, including as the case may be, pursuant to the Restricted Payment; provided that, notwithstanding the other provisions of this Indenture, with respect to this covenant, an MAI appraiser, accounting firm or valuation firm with experience in such valuation and not affiliated with the Company shall be required if the fair market value of such Restricted Payment or Restricted Payments for any property received after August 27series of transactions exceeds $20.0 million. At least quarterly, 2012 by means of (A) the sale or other disposition (other than Company shall deliver to the Company Trustee an Officers’ Certificate stating that all Restricted Payments during such quarter were 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. If a Guarantee constituted a Restricted Subsidiary) of Investment at the time made, then the payment under such Guarantee shall not constitute an additional Restricted Investments made by the Company or its Restricted Subsidiaries and repurchases and redemptions of such Restricted Investments from the Company or its Restricted Subsidiaries and repayments of loans or advances which constitute Restricted Investments of the Company or its Restricted Subsidiaries or (B) the sale (other than to the Company or a Restricted Subsidiary) of the Capital Interests of an Unrestricted Subsidiary or a distribution from an Unrestricted Subsidiary (other than in each case to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment) or a dividend from an Unrestricted Subsidiary, plus
(4) in the case of the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary or the merger or consolidation of an Unrestricted Subsidiary into the Company or a Restricted Subsidiary or the transfer of assets of an Unrestricted Subsidiary to the Company or a Restricted Subsidiary, the fair market value of the Investment in such Unrestricted Subsidiary (other than an Unrestricted Subsidiary to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment), plus
(5) $141.0 million. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default or an Event of Default. For purposes In the event of making any such determinationdesignation, all outstanding Investments owned by the Company and its Restricted Subsidiaries in the Subsidiary so designated will shall be deemed to be Restricted Payments or Permitted Investments, in the Company’s discretion, at an Investment made as of the time of such designation and will shall reduce the amount available for Restricted Payments under the first paragraph of this Section 4.07 or Permitted Investments, as applicable. All such outstanding Investments will shall be deemed to constitute Restricted Investments in an amount equal to the fair market value of such Investments at the time of such designation. Such designation will shall only be permitted if such Restricted Payments or Permitted Investments Payment would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary.
(b) Section 4.07(a) . The Board of Directors may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if such redesignation would not cause a Default or an Event of Default. Any such designation by the Board of Directors shall not prohibit:
(i) be evidenced to the payment Trustee by filing with the Trustee a certified copy of any dividend or other distribution or redemption within 60 days after the date of declaration or call for redemption thereof, if at said date of declaration or call for redemption board resolution giving effect to such payment would have designation and an Officers’ Certificate certifying that such designation complied with the provisions foregoing conditions and was permitted by this Section 4.07. If, at any time, any Unrestricted Subsidiary would fail to meet the definition of an Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture;
(ii) the making Indenture and any Indebtedness of any Restricted Payment in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a such Subsidiary of the Company) of, Equity Interests of the Company (other than any Disqualified Interests) or from a contribution of capital to the Company; 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 Section 4.07(a)(C)(2);
(iii) the defeasance, redemption, repurchase, replacement, extension, renewal, refinancing or retirement or other acquisition of subordinated Indebtedness or Disqualified Interests in exchange for or with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness;
(iv) the declaration, or payment of any dividend or other distribution 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 Section 4.09 hereof, the holders Company shall be in default of its common Equity Interests on a pro rata basis;
(v) the repurchase, redemption or other acquisition or retirement for value Section 4.09 hereof). The Board of any Equity Interests Directors of the Company or 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 held by of any current or former officer, director, employee, consultant or agent of Company or any of its Restricted Subsidiaries (or Heirs or other permitted transferees thereof) upon death, disability, retirement, severance or termination of employment or service or in connection with a stock option plan or agreement, shareholders agreement, or similar agreement, plan or arrangement, including amendments thereto; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may not exceed: (A) $10.0 million in any calendar year, with unused amounts being available to be used in any later calendar year; provided that such amount in any calendar year may be increased in an amount not to exceed the net cash proceeds from the sale of Equity Interests (other than Disqualified Interests) of the Company to any officer, director, employee or agent of the Company or any Subsidiary of the Company that occurs after the date of this Indenture, to the extent such net cash proceeds have not otherwise been applied to make Restricted Payments pursuant to Section 4.07(a)(C)(2); plus (B) the cash proceeds of key man life insurance policies received by the Company and its Restricted Subsidiaries after the date of this Indenture that are used for the repurchase, redemption or other acquisition or retirement for value owned by the individual (or such individual’s estate) that is the subject outstanding Indebtedness of such insurance;
Unrestricted Subsidiary and such designation shall only be permitted if (via) the repurchase of Equity Interests deemed to occur upon the exercise of options, warrants or other convertible securities to the extent such Equity Interests represent a portion of the exercise price of those options, warrants or other convertible securities and cash payments in lieu of the issuance of fractional shares in connection with the exercise of options, warrants, or other convertible securities;
(vii) the declaration and payment of regular quarterly dividends on the Company’s Equity Interests in accordance with past practice and not to exceed $0.05 per share;
(viii) additional Restricted Payments not to exceed $150.0 million after August 27, 2012;
(ix) the repurchase of the Company’s Equity Interests in an amount not to exceed $50.0 million after August 27, 2012;
(x) distributions or payments of Securitization Fees and purchases of Securitization Assets pursuant to a Securitization Repurchase Obligation in connection with a Qualified Securitization Financing;
(xi) any payments made in connection with the consummation of the transactions on substantially the terms described in the Offering Memorandum;
(xii) the payment of intercompany subordinated debt, the incurrence of which was Indebtedness is permitted under Section 4.09(b)(vi);
(xiii) 4.09 hereof, calculated on a pro forma basis as if such designation had occurred at the purchase of fractional shares by the Company upon conversion of any securities beginning of the Company into Capital Interests of the Company;
(xiv) the repurchase, redemption or other acquisition or retirement for value of subordinated Indebtedness or Disqualified Interests pursuant to the provisions similar to those described under Section 4.14 and Section 4.10; provided that all Notes tendered by Holders of the Notes in connection with the related Change of Control Offer or Asset Sale Offer, as applicable, have been repurchased, redeemed or acquired for value in full; and
(xv) payment of dividends on Disqualified Interests of the Company or a Restricted Subsidiary, the issuance of which is permitted by this Indenture.
(c) 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 Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any nonfour-cash Restricted Payment shall be determined by an officer of the Company. In the event that a Restricted Payment meets the criteria of more than one of the exceptions described in (i) through (xv) above or is entitled to be made pursuant to the first paragraph of this covenant, the Company may, in its sole discretion, classifyquarter reference period, and may later reclassify from time to time, (b) no Default or Event of Default would be in existence following such Restricted Payment or any portion thereof into or among any of such applicable provisionsdesignation.
Appears in 2 contracts
Samples: Indenture (Wci Communities Inc), Indenture (Valimar Home & Land Company, LLC)
Restricted Payments. (a) The Company shall Borrower will not, and shall will not permit any of its Restricted Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly:
(i) declare or pay , any dividend or make any other payment or distribution on account of the Company’s or any class of its Restricted Subsidiaries’ Equity Interests (includingcapital stock, without limitationpartner or limited liability company interests, any payment in connection with any merger or consolidation involving the Company other ownership interests, 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 (A) dividends or distributions accrued or payable in Equity Interests (other than Disqualified Interests) of the Company or (B) 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 the Company (other than any such Equity Interests owned by the Company or any Restricted Subsidiary of the Company);
(iii) make any payment on or with respect toaccount of, or set apart assets for a sinking or other analogous fund for, the purchase, redeemredemption, defease retirement, defeasance or otherwise acquire other acquisition of, any shares of capital stock, partner or retire for value any limited liability company interests, or other ownership interests, or Indebtedness that is subordinated to the Notes Obligations of the Borrower, or any Note Guarantee (other than Indebtedness permitted under clause (vi) of the definition of “Permitted Debt”) except (a) a payment of interest or principal at Stated Maturity or (b) the purchaseoptions, repurchase warrants, or other acquisition of any rights to purchase such Indebtedness in anticipation of satisfying a sinking fund obligationcapital stock, principal installment partner or final maturitylimited liability company interests, in each case, due within one year of the date of such purchase, repurchase or other acquisition; or
ownership interests, or such Indebtedness, whether now or hereafter outstanding (iv) make any each, a “Restricted Investment (all such payments and other actions set forth in clauses Payment”), except for (i) through dividends and distributions payable by the Borrower solely in shares of any class of its common stock, (ivii) above being collectively referred Restricted Payments made by any Subsidiary to as “Restricted Payments”)the Borrower or to another Subsidiary, unless(iii) cash dividends paid on, at and cash redemptions of, the time common stock of the Borrower so long as, before and after giving effect to such Restricted Payment:
(A) thereto, the Borrower shall be in compliance with the financial covenants set forth in Article VI and no other 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 dividend is paid or redemption is made 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 Fixed Charge Coverage Ratio test set forth in Section 4.09(a); and
(Civ) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by in respect of restricted stock and stock options granted or to be granted under the Company and its Restricted Subsidiaries after August 27, 2012 (excluding Restricted Payments permitted by clauses (i) (provided that at the time of declaring such dividend, such dividend was counted as a Restricted Payment) (ii), (iii), (iv), (v), (vi), (vii), (viii), (ix), (x), (xi), (xii), (xiii), (xiv) and (xv) of Section 4.07(b)), is less than the sum, without duplication, of
(1) 50% employee compensation plans of the Consolidated Net Income of the Company for the period (taken as one accounting period) from April 2, 2012 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
(2) 100% of the aggregate net proceeds, including the fair market value of any property or Capital Interests, received by the Company since August 27, 2012 as a contribution to its equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified Interests) or from the issue or sale of Disqualified Interests or debt securities of the Company that have been converted into such Equity Interests (other than Equity Interests (or Disqualified Interests or convertible debt securities) sold to a Subsidiary of the Company), together with the aggregate cash and Cash Equivalents received by the Company or any of its Restricted Subsidiaries at the time of such conversion or exchange plus the amount by which Indebtedness of the Company and its Restricted Subsidiaries is reduced upon the conversion or exchange subsequent to August 27, 2012 of any Indebtedness or Disqualified Interests which are convertible into or exchangeable for Qualified Capital Interests of the Company or any of its Restricted Subsidiaries, plus
(3) 100% of the amount received, including the fair market value of any property received after August 27, 2012 by means of (A) the sale Borrower described in applicable reports or other disposition (other than to the Company or a Restricted Subsidiary) of Restricted Investments filings made by the Company Borrower with the Securities and Exchange Commission or its Restricted Subsidiaries and repurchases and redemptions of such Restricted Investments from as otherwise disclosed by the Company or its Restricted Subsidiaries and repayments of loans or advances which constitute Restricted Investments of the Company or its Restricted Subsidiaries or (B) the sale (other than Borrower in writing to the Company or a Restricted Subsidiary) of the Capital Interests of an Unrestricted Subsidiary or a distribution from an Unrestricted Subsidiary (other than in each case to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment) or a dividend from an Unrestricted Subsidiary, plus
(4) in the case of the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary or the merger or consolidation of an Unrestricted Subsidiary into the Company or a Restricted Subsidiary or the transfer of assets of an Unrestricted Subsidiary to the Company or a Restricted Subsidiary, the fair market value of the Investment in such Unrestricted Subsidiary (other than an Unrestricted Subsidiary to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment), plus
(5) $141.0 million. The Board of Directors 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 in the Subsidiary so designated will be deemed to be Restricted Payments or Permitted Investments, in the Company’s discretion, at the time of such designation and will reduce the amount available for Restricted Payments or Permitted Investments, as applicable. 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 Payments or Permitted Investments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted SubsidiaryLenders.
(b) Section 4.07(a) shall not prohibit:
(i) the payment of any dividend or other distribution or redemption within 60 days after the date of declaration or call for redemption thereof, if at said date of declaration or call for redemption such payment would have complied with the provisions of this Indenture;
(ii) the making of any Restricted Payment in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Subsidiary of the Company) of, Equity Interests of the Company (other than any Disqualified Interests) or from a contribution of capital to the Company; 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 Section 4.07(a)(C)(2);
(iii) the defeasance, redemption, repurchase, replacement, extension, renewal, refinancing or retirement or other acquisition of subordinated Indebtedness or Disqualified Interests in exchange for or with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness;
(iv) the declaration, or payment of any dividend or other distribution 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 current or former officer, director, employee, consultant or agent of Company or any of its Restricted Subsidiaries (or Heirs or other permitted transferees thereof) upon death, disability, retirement, severance or termination of employment or service or in connection with a stock option plan or agreement, shareholders agreement, or similar agreement, plan or arrangement, including amendments thereto; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may not exceed: (A) $10.0 million in any calendar year, with unused amounts being available to be used in any later calendar year; provided that such amount in any calendar year may be increased in an amount not to exceed the net cash proceeds from the sale of Equity Interests (other than Disqualified Interests) of the Company to any officer, director, employee or agent of the Company or any Subsidiary of the Company that occurs after the date of this Indenture, to the extent such net cash proceeds have not otherwise been applied to make Restricted Payments pursuant to Section 4.07(a)(C)(2); plus (B) the cash proceeds of key man life insurance policies received by the Company and its Restricted Subsidiaries after the date of this Indenture that are used for the repurchase, redemption or other acquisition or retirement for value owned by the individual (or such individual’s estate) that is the subject of such insurance;
(vi) the repurchase of Equity Interests deemed to occur upon the exercise of options, warrants or other convertible securities to the extent such Equity Interests represent a portion of the exercise price of those options, warrants or other convertible securities and cash payments in lieu of the issuance of fractional shares in connection with the exercise of options, warrants, or other convertible securities;
(vii) the declaration and payment of regular quarterly dividends on the Company’s Equity Interests in accordance with past practice and not to exceed $0.05 per share;
(viii) additional Restricted Payments not to exceed $150.0 million after August 27, 2012;
(ix) the repurchase of the Company’s Equity Interests in an amount not to exceed $50.0 million after August 27, 2012;
(x) distributions or payments of Securitization Fees and purchases of Securitization Assets pursuant to a Securitization Repurchase Obligation in connection with a Qualified Securitization Financing;
(xi) any payments made in connection with the consummation of the transactions on substantially the terms described in the Offering Memorandum;
(xii) the payment of intercompany subordinated debt, the incurrence of which was permitted under Section 4.09(b)(vi);
(xiii) the purchase of fractional shares by the Company upon conversion of any securities of the Company into Capital Interests of the Company;
(xiv) the repurchase, redemption or other acquisition or retirement for value of subordinated Indebtedness or Disqualified Interests pursuant to the provisions similar to those described under Section 4.14 and Section 4.10; provided that all Notes tendered by Holders of the Notes in connection with the related Change of Control Offer or Asset Sale Offer, as applicable, have been repurchased, redeemed or acquired for value in full; and
(xv) payment of dividends on Disqualified Interests of the Company or a Restricted Subsidiary, the issuance of which is permitted by this Indenture.
(c) 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 Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall be determined by an officer of the Company. In the event that a Restricted Payment meets the criteria of more than one of the exceptions described in (i) through (xv) above or is entitled to be made pursuant to the first paragraph of this covenant, the Company may, in its sole discretion, classify, and may later reclassify from time to time, such Restricted Payment or any portion thereof into or among any of such applicable provisions.
Appears in 2 contracts
Samples: Revolving Credit Agreement (Dollar General Corp), Revolving Credit Agreement (Dollar General Corp)
Restricted Payments. (a) 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 its 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 's or any of its Restricted Subsidiaries’ ' Equity Interests in their capacity as such (other than (A) dividends or distributions accrued or payable (x) solely in Equity Interests (other than Disqualified InterestsStock) of the Company or (By) dividends or distributions in the case of the Company and its Restricted Subsidiaries, to the Company or a Restricted Subsidiary of the Companythereof);
(iib) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the CompanyCompany or any of its Restricted Subsidiaries) any Equity Interests of the Company or any direct or indirect parent Parent of the Company (other than any such Equity Interests owned by the Company or any Restricted Subsidiary of the CompanyCompany (other than, in the case of the Company and its Restricted Subsidiaries, any such Equity Interests owned directly or indirectly by the Company or any of its Restricted Subsidiaries);; or
(iiic) 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 (other than intercompany Indebtedness among the Company and its Restricted Subsidiaries that is permitted to be incurred under this Supplemental Indenture) that is subordinated to the Notes or any Note Guarantee (other than Indebtedness permitted under clause (vi) of the definition of “Permitted Debt”) Notes, except (a) a payment of interest or principal at the Stated Maturity or (b) the purchase, repurchase or other acquisition of any such Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case, due within one year of the date of such purchase, repurchase or other acquisition; or
(iv) make any Restricted Investment thereof (all such payments and other actions set forth in clauses (ia) through (ivc) 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;; 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 Fixed Charge Coverage Leverage Ratio test set forth in the first paragraph of Section 4.09(a)4.10; and
(C3) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries from and after August 27the April 1, 2012 2010 (excluding Restricted Payments permitted by clauses (i) (provided that at the time of declaring such dividend, such dividend was counted as a Restricted Payment) (ii2), (iii3), (iv4), (v5), (vi6), (vii7), (viii)8), (ix), (x), (xi), (xii), (xiii), (xiv9) and (xv12) of Section 4.07(b)the next succeeding paragraph and made on or after April 1, 2010), is less than shall not exceed, at the sumdate of determination, without duplication, the sum of:
(1a) 50an amount equal to 100% of the Consolidated Net Income EBITDA of the Company for the period (taken as one accounting period) from beginning on the first day of the fiscal quarter commencing April 21, 2012 2010 to the end of the Company’s 's most recently ended full fiscal quarter for which internal financial statements are available at available, taken as a single accounting period, less the time product of such Restricted Payment (or, if such 1.3 times the Consolidated Net Income Interest Expense of the Company for such period is a deficitperiod, less plus
(b) an amount equal to 100% of Capital Stock Sale Proceeds (reduced for purpose of this clause (b) by (A) any amount of such deficitCapital Stock Sale Proceeds (i) used in connection with an Investment made on or after the Issue Date pursuant to clause (5) of the definition of “Permitted Investments,” (ii) applied to make a Restricted Payment pursuant to clause (2) or sub-clause (y)(2) of clause (9) below, or (iii) relied upon for purposes of incurring Contribution Indebtedness and (B) the amount of Restricted Payments made pursuant to sub-clause (A)(i), (B) or (C) of clause (8) and sub-clause (y)(1) of clause (9) below, in each case, by an amount not to exceed the amount of Capital Stock Sale Proceeds from any Charter Subsidiary Refinancing Indebtedness or Charter Parent Refinancing Indebtedness), plus
(2) 100% of the aggregate net proceeds, including the fair market value of any property or Capital Interests, received by the Company since August 27, 2012 as a contribution to its equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified Interests) or from the issue or sale of Disqualified Interests or debt securities of the Company that have been converted into such Equity Interests (other than Equity Interests (or Disqualified Interests or convertible debt securities) sold to a Subsidiary of the Company), together with the aggregate cash and Cash Equivalents received by the Company or any of its Restricted Subsidiaries at the time of such conversion or exchange plus the amount by which Indebtedness of the Company and its Restricted Subsidiaries is reduced upon the conversion or exchange subsequent to August 27, 2012 of any Indebtedness or Disqualified Interests which are convertible into or exchangeable for Qualified Capital Interests of the Company or any of its Restricted Subsidiaries, plus
(3) 100% of the amount received, including the fair market value of any property received after August 27, 2012 by means of (A) the sale or other disposition (other than to the Company or a Restricted Subsidiary) of Restricted Investments made by the Company or its Restricted Subsidiaries and repurchases and redemptions of such Restricted Investments from the Company or its Restricted Subsidiaries and repayments of loans or advances which constitute Restricted Investments of the Company or its Restricted Subsidiaries or (B) the sale (other than to the Company or a Restricted Subsidiary) of the Capital Interests of an Unrestricted Subsidiary or a distribution from an Unrestricted Subsidiary (other than in each case to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment) or a dividend from an Unrestricted Subsidiary, plus
(4) in the case of the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary or the merger or consolidation of an Unrestricted Subsidiary into the Company or a Restricted Subsidiary or the transfer of assets of an Unrestricted Subsidiary to the Company or a Restricted Subsidiary, the fair market value of the Investment in such Unrestricted Subsidiary (other than an Unrestricted Subsidiary to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment), plus
(5c) $141.0 2,000.0 million. The Board of Directors 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 in the Subsidiary so designated will be deemed to be Restricted Payments or Permitted Investments, in the Company’s discretion, at the time of such designation and will reduce the amount available for Restricted Payments or Permitted Investments, as applicable. 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 Payments or Permitted Investments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary.
(b) Section 4.07(a) preceding provisions shall not prohibit:
(i1) the payment of any dividend or other distribution or redemption within 60 days after the date of declaration or call for redemption thereof, if at said the date of declaration or call for redemption such payment would have complied with the provisions of this Supplemental Indenture;
(ii2) the making redemption, repurchase, retirement, defeasance or other acquisition of any Restricted Payment subordinated Indebtedness of the Company in exchange for, or out of the net cash proceeds of of, the substantially concurrent sale (other than to a Subsidiary of the Company) of, Equity Interests of the Company (other than any Disqualified Interests) or from a contribution of capital to the Company; 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 Section 4.07(a)(C)(2Stock);
(iii3) the defeasance, redemption, repurchase, replacement, extension, renewal, refinancing or retirement repurchase or other acquisition of subordinated Indebtedness of the Company or Disqualified Interests in exchange for or any of its Restricted Subsidiaries with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness;
(iv4) the declaration, or payment of any dividend or other distribution to the extent necessary to permit direct or indirect beneficial owners of shares of Capital Stock of the Company to pay federal, state or local income tax liabilities that would arise solely from income of the Company or any of its Restricted Subsidiaries, as the case may be, for the relevant taxable period being attributable to them;
(5) payment of any dividend by a Restricted Subsidiary of the Company to the holders of its common Equity Interests on a pro rata basis;
(v6) the repurchase, redemption or other acquisition or retirement for value value, or the payment of any dividend or distribution to the extent necessary to permit the repurchase, redemption or other acquisition or retirement for value, of any Equity Interests of the Company or any Subsidiary a Parent of the Company held by any current member of the Company's or former officer, director, employee, consultant such Parent's management pursuant to any management equity subscription agreement or agent stock option agreement entered into in accordance with the policies of the Company or any of its Restricted Subsidiaries (or Heirs or other permitted transferees thereof) upon death, disability, retirement, severance or termination of employment or service or in connection with a stock option plan or agreement, shareholders agreement, or similar agreement, plan or arrangement, including amendments theretoParent; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may shall not exceed: (A) exceed $10.0 million in any calendar yearfiscal year of the Issuers;
(7) payment of fees in connection with any acquisition, with unused amounts being available to be used in any later calendar year; provided that such amount in any calendar year may be increased merger or similar transaction in an amount that does not exceed an amount equal to exceed the net cash proceeds from the sale of Equity Interests (other than Disqualified Interests) 1.25% of the Company transaction value of such acquisition, merger or similar transaction;
(8) (A) additional Restricted Payments directly or indirectly to any officerParent (i) for the purpose of enabling any Parent to pay interest when due on Indebtedness under any Charter Parent Refinancing Indebtedness or (ii) so long as no Default has occurred and is continuing and the Company would have been permitted, directorat 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 quarter period, employee to incur at least $1.00 of additional Indebtedness pursuant to the Leverage Ratio test set forth in the first paragraph of Section 4.10, consisting of dividends or agent distributions to the extent required to enable any Charter Parent Refinancing Subsidiary to defease, redeem, repurchase, prepay, repay, discharge or otherwise acquire or retire for value Indebtedness under any Charter Parent Refinancing Indebtedness (including any expenses and fees incurred by any Parent in connection therewith); (B) so long as no Default has occurred and is continuing, Restricted Payments used to defease, redeem, repurchase, prepay, repay, discharge or otherwise acquire or retire for value Indebtedness under any Charter Parent Refinancing Indebtedness or consisting of purchases, redemptions or other acquisitions by the Company or its Restricted Subsidiaries of Indebtedness under any Subsidiary of the Company that occurs after the date of this Indenture, to the extent such net cash proceeds have not otherwise been applied to make Restricted Payments pursuant to Section 4.07(a)(C)(2); plus Charter Parent Refinancing Indebtedness (B) the cash proceeds of key man life insurance policies received including any expenses and fees incurred by the Company and its Restricted Subsidiaries in connection therewith) and the distribution, loan or investment to any Parent of Indebtedness so purchased, redeemed or acquired, or (C) Restricted Payments for the purpose of enabling any Parent to (i) pay interest when due on Indebtedness under any Charter Subsidiary Refinancing Indebtedness or (ii) to defease, redeem, repurchase, prepay, repay, discharge or otherwise acquire or retire for value Indebtedness under any Charter Subsidiary Refinancing Indebtedness (including any expenses and fees incurred by the Company and its Restricted Subsidiaries in connection therewith);
(9) Restricted Payments directly or indirectly to any Parent regardless of whether a Default exists (other than an Event of Default under paragraphs (1), (2), (7) or (8) of Section 6.01), for the purpose of enabling such Person (A) to pay interest on and (B) so long as 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 date beginning of this Indenture the applicable quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Leverage Ratio test set forth in the first paragraph of Section 4.10 to defease, redeem, repurchase, prepay, repay, discharge or otherwise ac- -52- quire or retire, in each case, Indebtedness of such Parent (x) which is not held by another Parent and (y) to the extent that the net cash proceeds of such Indebtedness are or were used for the repurchase(1) payment of interest or principal (or premium) on any Indebtedness of a Parent (including (A) by way of a tender, redemption or other acquisition or retirement for value owned by the individual (or such individual’s estate) that is the subject prepayment of such insuranceIndebtedness and (B) amounts set aside to prefund any such payment), (2) direct or indirect (including by way of a contribution of property and/or assets purchased with such net cash proceeds) Investment in the Company or any of its Restricted Subsidiaries or (3) payment of amounts that would be permitted to be paid by way of a Restricted Payment under clause (10) immediately below (including the expenses of any exchange transaction);
(vi10) the repurchase Restricted Payments directly or indirectly to any Parent of (A) attorneys' fees, investment banking fees, accountants' fees, underwriting discounts and commissions and other customary fees and expenses (including any commitment and other fees payable in connection with Credit Facilities) actually incurred in connection with any issuance, sale or incurrence by such Parent of Equity Interests deemed or Indebtedness, or any exchange of securities or tender for outstanding debt securities, or (B) the costs and expenses of any offer to occur upon the exercise of options, warrants or other convertible exchange privately placed securities to the extent such Equity Interests represent a portion in respect of the exercise price of those options, warrants foregoing for publicly registered securities or other convertible securities and cash payments in lieu of the issuance of fractional shares in connection with the exercise of options, warrants, or other convertible securitiesany similar concept having a comparable purpose;
(vii11) the redemption, repurchase, retirement or other acquisition of any Equity Interests of the Company or Indebtedness of the Issuers or any Equity Interests of any direct or indirect parent of the Company, in exchange for, or out of the proceeds of the substantially concurrent sale (other than to an Issuer or a Restricted Subsidiary) of, Equity Interests of the Company or any direct or indirect parent of the Company (in each case, other than any Disqualified Stock);
(12) the declaration and payment of regular quarterly dividends on to holders of any class or series of Disqualified Stock of the Company’s Equity Interests Issuers or any Restricted Subsidiary issued in accordance with past practice and not to exceed $0.05 per share;Section 4.10; and
(viii13) additional so long as no Default has occurred and is continuing, other Restricted Payments not to exceed $150.0 million after August 27, 2012;
(ix) the repurchase of the Company’s Equity Interests in an aggregate amount taken together with all other Restricted Payments made pursuant to this clause (13) not to exceed $50.0 million after August 27, 2012;
(x) distributions or payments of Securitization Fees and purchases of Securitization Assets pursuant to a Securitization Repurchase Obligation in connection with a Qualified Securitization Financing;
(xi) any payments made in connection with the consummation of the transactions on substantially the terms described in the Offering Memorandum;
(xii) the payment of intercompany subordinated debt, the incurrence of which was permitted under Section 4.09(b)(vi);
(xiii) the purchase of fractional shares by the Company upon conversion of any securities of the Company into Capital Interests of the Company;
(xiv) the repurchase, redemption or other acquisition or retirement for value of subordinated Indebtedness or Disqualified Interests pursuant to the provisions similar to those described under Section 4.14 and Section 4.10; provided that all Notes tendered by Holders of the Notes in connection with the related Change of Control Offer or Asset Sale Offer, as applicable, have been repurchased, redeemed or acquired for value in full; and
(xv) payment of dividends on Disqualified Interests of the Company or a Restricted Subsidiary, the issuance of which is permitted by this Indenture.
(c) million. 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 Subsidiary, as the case may be, any of its Restricted Subsidiaries 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 covenant shall be determined by an officer the Board of Directors of the Company, whose resolution with respect thereto shall be delivered to the Trustee. In 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 $100.0 million. Not later than the date of making any Restricted Payment other than in the form of cash having a fair market value in excess of $10.0 million, 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 Supplemental Indenture. For purposes of determining compliance with this Section 4.07, in the event that a Restricted Payment meets Payment, when made, met the criteria of more than one of the exceptions categories described in clauses (i1) through (xv13) above above, or is was permitted pursuant to Section 4.07(a), the Issuers will be entitled to be made pursuant to the first paragraph of this covenant, the Company may, in its sole discretion, classify, and may later reclassify from time to time, classify such Restricted Payment (or portion thereof) on the date of its payment or later reclassify such Restricted Payment (or portion thereof) in any portion thereof into or among any of such applicable provisionsmanner that complies with this Section 4.07.
Appears in 2 contracts
Samples: Seventh Supplemental Indenture (Charter Communications, Inc. /Mo/), Sixth Supplemental Indenture (Charter Communications, Inc. /Mo/)
Restricted Payments. (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly:
: (i) declare or pay any dividend on, or make any other payment or distribution on account of 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 (A) dividends or distributions accrued or payable in Equity Interests (other than Disqualified InterestsStock) of the Company or (B) dividends or distributions to the Company or a Restricted Subsidiary of the CompanySubsidiary);
; (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 the Company (other than any such Equity Interests owned by the Company or any of its Restricted Subsidiary of the CompanySubsidiaries);
; (iii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value value, in each case, prior to any scheduled repayment, sinking fund payment or maturity, any Indebtedness that is subordinated to the Notes or any Note Guarantee (other than Indebtedness permitted under clause (vi) of the definition of “Permitted Debt”) Subsidiary Guarantees, except (a) a payment of interest or principal at Stated Maturity or (b) the payment, purchase, repurchase redemption, defeasance or other acquisition of any such Indebtedness or retirement purchased in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case, case due within one year of the date of such payment, purchase, repurchase redemption, defeasance or other acquisitionacquisition or retirement for value; or
or (iv) make any Restricted Investment (all such payments and other actions set forth in the clauses (i) through (iv) above being collectively referred to as “Restricted Payments”), unless, at the time of and after giving effect to such Restricted Payment:
(Aa) no Event of Default shall have occurred and be continuing or would occur as a consequence thereofof such Restricted Payment;
(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 periodthereto, 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(a)4.09 hereof; and
(Cc) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after August 27beginning on October 1, 2012 2021 (excluding Restricted Payments permitted by clauses (i) (provided that at the time of declaring such dividend, such dividend was counted as a Restricted Payment) (ii), (iii), (iv), (v), (vi), (vii), (viii), (ix), (x), (xi), (xii), (xiii), (xiv) and (xvxii) of Section 4.07(b)the next succeeding paragraph), is less than the sum, without duplication, of
: (1i) 50% of the Consolidated Net Income of the Company for the period (taken as one accounting period) from April 2beginning on October 1, 2012 2021 up 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 (2ii) 100% of the aggregate net proceeds, proceeds (including the fair market value of any property or Capital Interests, other than cash) received by the Company since August 27on or after October 1, 2012 2021 as a contribution to its common equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified InterestsStock but including the 2021 Common Stock Offering) or from the issue or sale of convertible or exchangeable Disqualified Interests Stock or convertible or exchangeable debt securities of the Company that have been converted into or exchanged for such Equity Interests (other than Equity Interests (Interests, Disqualified Stock or Disqualified Interests or convertible debt securities) securities sold to a Subsidiary of the Company), together with plus (iii) the amount by which Indebtedness or Disqualified Stock incurred or issued subsequent to the Issue Date is reduced on the Company’s consolidated balance sheet upon the conversion or exchange (other than by a Subsidiary of the Company) into Equity Interests of the Company (other than Disqualified Stock) (less the amount of any cash, or the fair market value of any other asset, distributed by the Company or any Restricted Subsidiary upon such conversion or exchange); provided that such amount shall not exceed the aggregate cash and Cash Equivalents net proceeds (including the fair market value of property other than cash) received by the Company or any of its Restricted Subsidiaries at Subsidiary after the time of such conversion or exchange plus the amount by which Indebtedness of the Company and its Restricted Subsidiaries is reduced upon the conversion or exchange subsequent to August 27, 2012 of any Indebtedness or Disqualified Interests which are convertible into or exchangeable for Qualified Capital Interests of the Company or any of its Restricted Subsidiaries, plus
(3) 100% of the amount received, including the fair market value of any property received after August 27, 2012 by means of (A) the sale or other disposition (other than to the Company or a Restricted Subsidiary) of Restricted Investments made by the Company or its Restricted Subsidiaries and repurchases and redemptions of such Restricted Investments Issue Date from the Company or its Restricted Subsidiaries issuance and repayments of loans or advances which constitute Restricted Investments of the Company or its Restricted Subsidiaries or (B) the sale (other than to a Subsidiary of the Company) of such Indebtedness or Disqualified Stock; plus (iv) to the extent that any Restricted Investment that was made on or after October 1, 2021 has been or is sold for cash or otherwise liquidated or repaid, purchased or redeemed for cash, the lesser of (A) such cash (less the cost of disposition, if any) and (B) the amount of such Restricted Investment, plus (v) to the extent not otherwise included in the calculation of Consolidated Net Income of the Company or a Restricted Subsidiaryfor such period for purposes of clause (i) above, 100% of the Capital Interests of an Unrestricted Subsidiary or a distribution from an Unrestricted Subsidiary net reduction in Investments (other than in each case to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment) or a dividend from an Unrestricted Subsidiary, plus
(4Investments) in the case of the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary or the merger or consolidation of an Unrestricted Subsidiary into any Person other than the Company or a Restricted Subsidiary resulting from dividends, return of capital, interest payments, repayment of loans or advances or other transfers of assets, in each case to the transfer Company or any Restricted Subsidiary, plus (vi) to the extent not otherwise included in the calculation of Consolidated Net Income of the Company for such period for purposes of clause (i) above, 100% of any dividends or interest payments, return of capital, repayments of loans or advances or other transfers of assets of an Unrestricted Subsidiary to received by the Company or a Restricted SubsidiarySubsidiary on and after the Issue Date from an Unrestricted Subsidiary or other Investment (other than a Permitted Investment), plus (vii) to the extent that any Unrestricted Subsidiary of the Company has been or is redesignated as a Restricted Subsidiary on or after October 1, 2021, the fair market value of the Company’s Investment in such Unrestricted Subsidiary as of the date of such redesignation, plus (other than an Unrestricted Subsidiary to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment), plus
(5viii) $141.0 740.0 million. The Board of Directors 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 in the Subsidiary so designated preceding provisions will be deemed to be Restricted Payments or Permitted Investments, in the Company’s discretion, at the time of such designation and will reduce the amount available for Restricted Payments or Permitted Investments, as applicable. 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 Payments or Permitted Investments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary.
(b) Section 4.07(a) shall not prohibit:
: (i) the payment of any dividend or other distribution on, or redemption of, Equity Interests, within 60 days after the date of declaration of the dividend or call for redemption the giving of notice thereof, if if, at said the date of such declaration or call for redemption the giving of such notice the payment would have complied with the provisions of this Indenture;
; (ii) 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 the making of any Restricted Payment Investment, 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, or capital contribution in respect of, Equity Interests of the Company (other than any Disqualified Interests) or from a contribution of capital to the CompanyStock); provided that the amount of any such net cash proceeds that are utilized for any such redemption, repurchase, retirement, defeasance or other acquisition shall or any such Investment will be excluded from Section 4.07(a)(C)(2);
clause (c)(ii) of the preceding paragraph; (iii) the defeasance, redemption, repurchase, replacement, extension, renewal, refinancing or retirement repurchase or other acquisition of subordinated Indebtedness of the Company or Disqualified Interests in exchange for or any Guarantor with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness;
; (iv) the declaration, or payment of any dividend or other payment or distribution by a Restricted Subsidiary of the Company to the holders of its common Equity Interests on a pro rata basis;
; (v) repurchases of Equity Interests deemed to occur upon exercise of stock options if those Equity Interests represent all or a portion of the exercise price of those options; (vi) 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 (in the event such Equity Interests are not owned by any current or former officer, director, employee, consultant or agent of the Company or any of its Restricted Subsidiaries (or Heirs or other permitted transferees thereofSubsidiaries) upon death, disability, retirement, severance or termination of employment or service or in connection with a stock option plan or agreement, shareholders agreement, or similar agreement, plan or arrangement, including amendments thereto; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may not exceed: (A) $10.0 million in any calendar year, with unused amounts being available to be used in any later calendar year; provided that such amount in any calendar year may be increased in an amount not to exceed the net cash proceeds from the sale of Equity Interests (other than Disqualified Interests) of the Company to any officer, director, employee or agent of the Company or any Subsidiary of the Company that occurs after the date of this Indenture, to the extent such net cash proceeds have not otherwise been applied to make Restricted Payments pursuant to Section 4.07(a)(C)(2); plus (B) the cash proceeds of key man life insurance policies received by the Company and its Restricted Subsidiaries after the date of this Indenture that are used for the repurchase, redemption or other acquisition or retirement for value owned by the individual (or such individual’s estate) that is the subject of such insurance;
(vi) the repurchase of Equity Interests deemed to occur upon the exercise of options, warrants or other convertible securities to the extent such Equity Interests represent a portion of the exercise price of those options, warrants or other convertible securities and cash payments in lieu of the issuance of fractional shares in connection with the exercise of options, warrants, or other convertible securities;
(vii) the declaration and payment of regular quarterly dividends on the Company’s Equity Interests in accordance with past practice and not to exceed $0.05 per share;
(viii) additional Restricted Payments not to exceed $150.0 million after August 27, 2012;
(ix) the repurchase of the Company’s Equity Interests in an amount not to exceed $50.0 million after August 27in any fiscal year with unused amounts carried over to the succeeding fiscal year, 2012;
subject to a maximum of $100.0 million in any fiscal year; (xvii) the purchase by the Company of fractional shares arising out of stock dividends, splits or combinations or business combinations and payments or distributions or payments of Securitization Fees and purchases of Securitization Assets to dissenting stockholders pursuant to a Securitization Repurchase Obligation applicable law in connection with a Qualified Securitization Financing;
consolidation, merger or transfer of assets; (viii) the declaration and payment of dividends to holders of any class or series of preferred stock of the Company issued or incurred in compliance with Section 4.09 hereof to the extent such dividends are included in the definition of “Fixed Charges”; (ix) Restricted Payments not to exceed the greater of (a) $225.0 million and (b) 3.0% of Consolidated Total Assets calculated at the time of such Restricted Payment under this clause (ix) in the aggregate, plus, to the extent Restricted Payments made pursuant to this clause (ix) are Investments made by the Company or any of its Restricted Subsidiaries in any Person and such Investment is sold or otherwise liquidated or repaid, purchased or redeemed, an amount equal to the cash and/or fair market value of assets, received (less the cost of disposition, if any); provided that the amount of such cash and/or assets received will be excluded from clause (c)(iv) of the immediately preceding paragraph; (x) Restricted Payments, so long as the Consolidated Total Leverage Ratio of the Company and its Restricted Subsidiaries on a consolidated basis is no greater than 3.0 to 1.0 determined on a pro forma basis for the most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date of such Restricted Payment; (xi) any payments made in connection with the consummation of the transactions on substantially the terms described in the Offering Memorandum;
(xii) the payment of intercompany subordinated debt, the incurrence of which was permitted under Section 4.09(b)(vi);
(xiii) the purchase of fractional shares dividends or other distributions by the Company upon conversion or any Restricted Subsidiary of any securities (A) Capital Stock of the Company into Capital Interests of the Company;
an Unrestricted Subsidiary, or (xivB) the repurchase, redemption or other acquisition or retirement for value of subordinated Indebtedness or Disqualified Interests pursuant Debt owed to the provisions similar to those described under Section 4.14 and Section 4.10; provided that all Notes tendered by Holders of the Notes in connection with the related Change of Control Offer or Asset Sale Offer, as applicable, have been repurchased, redeemed or acquired for value in full; and
(xv) payment of dividends on Disqualified Interests of the Company or a Restricted Subsidiary by, an Unrestricted Subsidiary, in each case, other than an Unrestricted Subsidiary the issuance principal asset of which is permitted by cash and Cash Equivalents or (C) intellectual property that is material to the Company and its Subsidiaries, taken as a whole; or (xii) any Restricted Payments that are made in connection with Transactions, including the consummation of the LHM Acquisition. For purposes of determining compliance with this Indenture.
Section 4.07, in the event that at the time a Restricted Payment or Permitted Investment (cor any portion thereof) is made such Restricted Payment or Permitted Investment (or any portion thereof) meets the criteria of more than one of the categories of Restricted Payments described in the first paragraph of this Section 4.07 or clauses (i) through (xii) of the preceding paragraph, or one or more of the categories of Investments described in the clauses of the definition of “Permitted Investment,” then the Company, in its sole discretion, will classify (and will be entitled to divide and classify) such Restricted Payment or Permitted Investment (or any portion thereof) among one or more categories and may later redivide or reclassify such Restricted Payment among such categories in any manner that complies with this Section 4.07 at the time of classification or reclassification. 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-assets or securities other than cash Restricted Payment shall that are required to be valued by this Section 4.07 will be determined by an officer of the Company. In Company (or if such fair market value exceeds $100.0 million, by the event that a Restricted Payment meets the criteria Board of more than one Directors of the exceptions described in (i) through (xv) above or is entitled to be made pursuant to the first paragraph of this covenant, the Company may, in its sole discretion, classify, and may later reclassify from time to time, such Restricted Payment or any portion thereof into or among any of such applicable provisionsCompany).
Appears in 2 contracts
Samples: Indenture (Asbury Automotive Group Inc), Indenture (Asbury Automotive Group Inc)
Restricted Payments. 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 distributions in respect thereof, either directly or indirectly, whether in cash or property or in obligations of any Borrower or any Subsidiary of any Borrower (collectively, “Restricted Payments”), except:
(a) The Company shall not, and shall not permit Restricted Payments made (i) by any Subsidiary of BA to BA or to any of its BA’s other Subsidiaries and (ii) by any Subsidiary of Holdings, other than BA or a Subsidiary of BA, to Holdings or to any of Holdings’ other Subsidiaries and, in the case of both clauses (i) and (ii), to the other holders (if any) of Capital Stock of the Person making such Restricted Subsidiaries toPayment (on a no more than pro rata basis to such other holders (measured by value));
(b) Restricted Payments made, directly or indirectly:
, to Parent to (i) declare purchase Parent’s Capital Stock from present or pay former officers or employees of any dividend Group Member upon the death, disability or make any other payment termination of employment of such officer or distribution on account of the Company’s or any of its Restricted Subsidiaries’ Equity Interests (includingemployee, 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 (A) dividends or distributions accrued or payable in Equity Interests (other than Disqualified Interests) of the Company or (B) dividends or distributions to the Company or a Restricted Subsidiary of the Company);
and (ii) purchase, redeem or otherwise acquire any Capital Stock of Parent from employees, officers and directors of Holdings or retire for value any of its Subsidiaries, pursuant to the terms of any employee stock option, incentive stock, restricted stock or other similar plan; provided, that the aggregate amount of payments under this clause (includingb) (which, without limitationin the case of any payments made pursuant to clause (i), shall be net of any proceeds received by Parent after the date hereof in connection with resales of any merger Capital Stock so purchased) shall not exceed $1,000,000 during any fiscal year or consolidation involving $5,000,000 in the Company) any Equity Interests aggregate during the term of the Company or any direct or indirect parent of the Company (other than any such Equity Interests owned by the Company or any Restricted Subsidiary of the Company)this Agreement;
(c) Restricted Payments made, directly or indirectly, to Parent, so that the Parent may pay, without duplication, (i) Parent Expenses, (ii) if Holdings is properly classified as a pass-through entity for U.S. federal income tax purposes or is a member of a group filing a consolidated return with Parent as the parent of such group, federal, state and local income Taxes which are due and payable by Parent but only to the extent such taxes are attributable to income or gain (taking into account any net losses and other tax attributes) of Holdings and any of its Subsidiaries that is a pass-through entity for U.S. federal income tax purposes or a member of a group filing such consolidated return, computed as if Holdings and such Subsidiaries file a separate consolidated return (or a separate return) and (iii) make any payment on franchise or with respect to, other Taxes required to maintain Holdings’ or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness that is subordinated Parent’s existence;
(d) Restricted Payments made by BA and its Subsidiaries to the Notes Holdings or any Note Guarantee (other than Indebtedness permitted under clause (vi) Subsidiary of Holdings in an aggregate amount not to exceed the portion, if any, of the definition of “Permitted Debt”) except (a) a payment of interest or principal at Stated Maturity or (b) the purchase, repurchase or other acquisition of any such Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case, due within one year of Available Basket Amount on the date of such purchase, repurchase or other acquisitionRestricted Payments that BA elects to apply to this Section 8.6(d); or
(iv) make any Restricted Investment (all such payments and other actions set forth in clauses (i) through (iv) above being collectively referred to as “Restricted Payments”), unless, provided that at the time of any such Restricted Payment, both before and after giving effect to such Restricted Payment:
thereto (Ai) no Specified Event of Default shall have occurred and be continuing or would occur as a consequence thereof;
result therefrom and (Bii) the Company would, Borrowers and their respective Subsidiaries shall have Liquidity of at least $10,000,000 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 Fixed Charge Coverage Ratio test set forth in Section 4.09(a); and
(C) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after August 27, 2012 (excluding Restricted Payments permitted by clauses (i) (provided that at the time of declaring such dividend, such dividend was counted as a Restricted Payment) (ii), (iii), (iv), (v), (vi), (vii), (viii), (ix), (x), (xi), (xii), (xiii), (xiv) and (xv) of Section 4.07(b)), is less than the sum, without duplication, of
(1) 50% of the Consolidated Net Income of the Company for the period (taken as one accounting period) from April 2, 2012 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
(2) 100% of the aggregate net proceeds, including the fair market value of any property or Capital Interests, received by the Company since August 27, 2012 as a contribution to its equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified Interests) or from the issue or sale of Disqualified Interests or debt securities of the Company that have been converted into such Equity Interests (other than Equity Interests (or Disqualified Interests or convertible debt securities) sold to a Subsidiary of the Company), together with the aggregate cash and Cash Equivalents received by the Company or any of its Restricted Subsidiaries at the time of such conversion or exchange plus the amount by which Indebtedness of the Company and its Restricted Subsidiaries is reduced upon the conversion or exchange subsequent to August 27, 2012 of any Indebtedness or Disqualified Interests which are convertible into or exchangeable for Qualified Capital Interests of the Company or any of its Restricted Subsidiaries, plus
(3) 100% of the amount received, including the fair market value of any property received after August 27, 2012 by means of (A) the sale or other disposition (other than to the Company or a Restricted Subsidiary) of Restricted Investments made by the Company or its Restricted Subsidiaries and repurchases and redemptions of such Restricted Investments from the Company or its Restricted Subsidiaries and repayments of loans or advances which constitute Restricted Investments of the Company or its Restricted Subsidiaries or (B) the sale (other than to the Company or a Restricted Subsidiary) of the Capital Interests of an Unrestricted Subsidiary or a distribution from an Unrestricted Subsidiary (other than in each case to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment) or a dividend from an Unrestricted Subsidiary, plus
(4) in the case of the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary or the merger or consolidation of an Unrestricted Subsidiary into the Company or a Restricted Subsidiary or the transfer of assets of an Unrestricted Subsidiary to the Company or a Restricted Subsidiary, the fair market value of the Investment in such Unrestricted Subsidiary (other than an Unrestricted Subsidiary to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment), plus
(5) $141.0 million. The Board of Directors 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 in the Subsidiary so designated will be deemed to be Restricted Payments or Permitted Investments, in the Company’s discretion, at the time of such designation and will reduce the amount available for Restricted Payments or Permitted Investments, as applicable. 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 Payments or Permitted Investments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary.
(b) Section 4.07(a) shall not prohibit:
(i) the payment of any dividend or other distribution or redemption within 60 days after the date of declaration or call for redemption thereof, if at said date of declaration or call for redemption such payment would have complied with the provisions of this Indenture;
(iie) the making repurchases of Capital Stock of any Restricted Payment in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Subsidiary of the Company) of, Equity Interests of the Company (other than any Disqualified Interests) or from a contribution of capital to the Company; 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 Section 4.07(a)(C)(2);
(iii) the defeasance, redemption, repurchase, replacement, extension, renewal, refinancing or retirement or other acquisition of subordinated Indebtedness or Disqualified Interests in exchange for or with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness;
(iv) the declaration, or payment of any dividend or other distribution 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 current or former officer, director, employee, consultant or agent of Company or any of its Restricted Subsidiaries (or Heirs or other permitted transferees thereof) upon death, disability, retirement, severance or termination of employment or service or in connection with a stock option plan or agreement, shareholders agreement, or similar agreement, plan or arrangement, including amendments thereto; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may not exceed: (A) $10.0 million in any calendar year, with unused amounts being available to be used in any later calendar year; provided that such amount in any calendar year may be increased in an amount not to exceed the net cash proceeds from the sale of Equity Interests (other than Disqualified Interests) of the Company to any officer, director, employee or agent of the Company or any Subsidiary of the Company that occurs after the date of this Indenture, to the extent such net cash proceeds have not otherwise been applied to make Restricted Payments pursuant to Section 4.07(a)(C)(2); plus (B) the cash proceeds of key man life insurance policies received by the Company and its Restricted Subsidiaries after the date of this Indenture that are used for the repurchase, redemption or other acquisition or retirement for value owned by the individual (or such individual’s estate) that is the subject of such insurance;
(vi) the repurchase of Equity Interests Group Member deemed to occur upon the cashless exercise of options, stock options or warrants or other convertible securities to the extent if such Equity Interests represent Capital Stock represents a portion of the exercise price of those options, warrants such options or other convertible securities and cash payments in lieu of the issuance of fractional shares in connection with the exercise of options, warrants, or other convertible securities;
(viif) dividend payments or other distributions to the declaration and payment extent payable in the Capital Stock of regular quarterly dividends on the Company’s Equity Interests in accordance with past practice and not to exceed $0.05 per share;
such Person (viii) additional Restricted Payments not to exceed $150.0 million after August 27so long as no Event of Default would result therefrom, 2012;
(ix) the repurchase including as a result of the Company’s Equity Interests in an amount dividend or distribution of Capital Stock other than Qualified Capital Stock not to exceed $50.0 million after August 27otherwise permitted by Section 8.2, 2012;
(x) or dividend payments or distributions or payments that would cause a Change of Securitization Fees and purchases of Securitization Assets pursuant to a Securitization Repurchase Obligation in connection with a Qualified Securitization Financing;
(xi) any payments made in connection with the consummation of the transactions on substantially the terms described in the Offering Memorandum;
(xii) the payment of intercompany subordinated debt, the incurrence of which was permitted under Section 4.09(b)(viControl);
(xiiig) the purchase of fractional shares by the Company upon conversion of any securities of the Company into Capital Interests of the Company;
(xiv) the repurchase, redemption or other acquisition or retirement for value of subordinated Indebtedness or Disqualified Interests pursuant to the provisions similar to those described under extent constituting Restricted Payments, the Borrowers and their respective Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 4.14 and Section 4.10; provided that all Notes tendered by Holders of the Notes in connection with the related Change of Control Offer or Asset Sale Offer, as applicable, have been repurchased, redeemed or acquired for value in full8.4; and
(xvh) payment Restricted Payments deemed to be made as a result of dividends on Disqualified Interests of a reduction (whether by return, write-off or otherwise) in the Company or a Restricted Subsidiary, the issuance of which is permitted by this Indenture.
(c) 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 Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall be determined by an officer of the Company. In the event that a Restricted Payment meets the criteria of more than one of the exceptions described in (i) through (xv) above or is entitled Investment expressly permitted to be made pursuant to the first paragraph of this covenant, the Company may, in its sole discretion, classify, and may later reclassify from time to time, such Restricted Payment or any portion thereof into or among any of such applicable provisionsSection 8.8(s).
Appears in 2 contracts
Samples: Amendment and Restatement Agreement (Gogo Inc.), Credit Agreement (Gogo 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, 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 (A) dividends or distributions accrued or payable (a) in Equity Interests (other than Disqualified InterestsStock) of the Company or (Bb) dividends or distributions to the Company or a Restricted Subsidiary of the Company);
(ii2) 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 Parent Entity held by Persons other than the Company or indirect parent a Restricted Subsidiary (other than in exchange for Capital Stock of the Company (other than any such Equity Interests owned by the Company or any Restricted Subsidiary of the CompanyDisqualified Stock));
(iii3) make any payment of principal on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness (other than any Indebtedness of the Company owing to and held by a Guarantor or Indebtedness of a Guarantor owing to and held by the Company or any other Guarantor permitted under this Indenture) that is subordinated to the Notes or any Note Guarantee (other than Indebtedness permitted under clause (vi) of the definition of “Permitted Debt”) Subsidiary Guarantees, if any, except (a) a payment of interest or principal at the Stated Maturity or (b) the thereof, other than any purchase, repurchase repurchase, redemption, defeasance or other acquisition or retirement of any such Indebtedness made in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case, due within one year of the date of such purchase, repurchase repurchase, redemption, defeasance or other acquisitionacquisition or retirement; or
(iv4) make any Restricted Investment (all such payments and other actions set forth in these clauses (i1) through (iv4) 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 Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 4.09(a)4.09; and
(Ciii) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after August 27, 2012 since the Start Date (excluding including Restricted Payments permitted by clauses (i) (provided that at the time of declaring such dividend, such dividend was counted as a Restricted Payment) (ii), (iii), (iv), (v), (vi), (vii), (viii), (ix), (x), (xi), (xii), (xiii), (xiv) and (xvxiii) of the next succeeding paragraph, but excluding all other Restricted Payments permitted by the next succeeding paragraph; all payment calculations being made as if this Section 4.07(b)4.07 had been in effect as of the Start Date and at all times thereafter), is less than the sum, without duplication, of:
(1a) 50% of the (i) Consolidated Net Income Cash Flow of the Company and its Restricted Subsidiaries on a consolidated basis for the Restricted Payments Computation Period, minus (ii) (A) for the period from the Start Date to March 31, 2011, 2.0 and (taken as one accounting periodB) from April 2thereafter, 2012 to the end 1.7, multiplied by Fixed Charges of the Company’s most recently ended fiscal quarter Company and its Restricted Subsidiaries on a consolidated basis 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)Payments Computation Period, plus
(2b) 100% of the aggregate net proceeds, including cash proceeds and the fair market value of any marketable securities and other property or Capital Interests, received by the Company since August 27, 2012 as a contribution to its equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified Interests) or from the issue or sale of Disqualified Interests or debt securities of the Company that have been converted into such Equity Interests (other than Equity Interests (or Disqualified Interests or convertible debt securities) sold to a Subsidiary of the Company), together with the aggregate cash and Cash Equivalents received by the Company or any of its Restricted Subsidiaries at Guarantor since immediately after the time of such conversion or exchange plus Start Date from the amount by which Indebtedness of the Company and its Restricted Subsidiaries is reduced upon the conversion or exchange subsequent to August 27, 2012 of any Indebtedness or Disqualified Interests which are convertible into or exchangeable for Qualified Capital sale of:
(i) (A) Equity Interests of the Company or any of its Restricted SubsidiariesCompany, plus
(3) 100% of the amount received, including excluding cash proceeds and the fair market value of any marketable securities or other property received after August 27, 2012 by means of (A) the sale or other disposition (other than to the Company or a Restricted Subsidiary) of Restricted Investments made by the Company or its Restricted Subsidiaries and repurchases and redemptions of such Restricted Investments from the Company or its Restricted Subsidiaries and repayments of loans or advances which constitute Restricted Investments of the Company or its Restricted Subsidiaries or (B) the sale (other than to the Company or a Restricted Subsidiary) of the Capital Interests of an Unrestricted Subsidiary or a distribution from an Unrestricted Subsidiary (other than in each case to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment) or a dividend from an Unrestricted Subsidiary, plus
(4) in the case of the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary or the merger or consolidation of an Unrestricted Subsidiary into the Company or a Restricted Subsidiary or the transfer of assets of an Unrestricted Subsidiary to the Company or a Restricted Subsidiary, the fair market value of the Investment in such Unrestricted Subsidiary (other than an Unrestricted Subsidiary to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment), plus
(5) $141.0 million. The Board of Directors 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 in the Subsidiary so designated will be deemed to be Restricted Payments or Permitted Investments, in the Company’s discretion, at the time of such designation and will reduce the amount available for Restricted Payments or Permitted Investments, as applicable. 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 Payments or Permitted Investments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary.
(b) Section 4.07(a) shall not prohibit:
(i) the payment of any dividend or other distribution or redemption within 60 days after the date of declaration or call for redemption thereof, if at said date of declaration or call for redemption such payment would have complied with the provisions of this Indenture;
(ii) the making of any Restricted Payment in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Subsidiary of the Company) of, Equity Interests of the Company (other than any Disqualified Interests) or from a contribution of capital to the Company; 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 Section 4.07(a)(C)(2);
(iii) the defeasance, redemption, repurchase, replacement, extension, renewal, refinancing or retirement or other acquisition of subordinated Indebtedness or Disqualified Interests in exchange for or with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness;
(iv) the declaration, or payment of any dividend or other distribution 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 current or former officer, director, employee, consultant or agent of Company or any of its Restricted Subsidiaries (or Heirs or other permitted transferees thereof) upon death, disability, retirement, severance or termination of employment or service or in connection with a stock option plan or agreement, shareholders agreement, or similar agreement, plan or arrangement, including amendments thereto; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may not exceed: (A) $10.0 million in any calendar year, with unused amounts being available to be used in any later calendar year; provided that such amount in any calendar year may be increased in an amount not to exceed the net cash proceeds from the sale of Equity Interests (other than Disqualified Interests) to members of management, directors or consultants of the Company to Company, any officer, director, employee or agent of Parent Entity and the Company or any Subsidiary of the Company that occurs Company’s Subsidiaries after the date of this Indenture, Start Date to the extent such net cash proceeds amounts have not otherwise been applied to make Restricted Payments pursuant to Section 4.07(a)(C)(2); plus (B) the cash proceeds of key man life insurance policies received by the Company and its Restricted Subsidiaries after the date of this Indenture that are used for the repurchase, redemption or other acquisition or retirement for value owned by the individual (or such individual’s estate) that is the subject of such insurance;
(vi) the repurchase of Equity Interests deemed to occur upon the exercise of options, warrants or other convertible securities to the extent such Equity Interests represent a portion of the exercise price of those options, warrants or other convertible securities and cash payments in lieu of the issuance of fractional shares in connection with the exercise of options, warrants, or other convertible securities;
(vii) the declaration and payment of regular quarterly dividends on the Company’s Equity Interests made in accordance with past practice and not to exceed $0.05 per share;
clause (viiiv) additional Restricted Payments not to exceed $150.0 million after August 27, 2012;
(ix) the repurchase of the Company’s Equity Interests in an amount not to exceed $50.0 million after August 27, 2012;
(x) distributions or payments of Securitization Fees and purchases of Securitization Assets pursuant to a Securitization Repurchase Obligation in connection with a Qualified Securitization Financing;
(xi) any payments made in connection with the consummation of the transactions on substantially the terms described in the Offering Memorandum;
(xii) the payment of intercompany subordinated debt, the incurrence of which was permitted under Section 4.09(b)(vi);
(xiii) the purchase of fractional shares by the Company upon conversion of any securities of the Company into Capital Interests of the Company;
(xiv) the repurchase, redemption or other acquisition or retirement for value of subordinated Indebtedness or Disqualified Interests pursuant to the provisions similar to those described under Section 4.14 and Section 4.10; provided that all Notes tendered by Holders of the Notes in connection with the related Change of Control Offer or Asset Sale Offer, as applicable, have been repurchased, redeemed or acquired for value in fullnext succeeding paragraph; and
(xv) payment of dividends on Disqualified Interests of the Company or a Restricted Subsidiary, the issuance of which is permitted by this Indenture.
(c) 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 Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall be determined by an officer of the Company. In the event that a Restricted Payment meets the criteria of more than one of the exceptions described in (i) through (xv) above or is entitled to be made pursuant to the first paragraph of this covenant, the Company may, in its sole discretion, classify, and may later reclassify from time to time, such Restricted Payment or any portion thereof into or among any of such applicable provisions.
Appears in 2 contracts
Samples: Indenture (Cinemark Holdings, Inc.), Indenture (Cinemark Usa Inc /Tx)
Restricted Payments. (a) The Company shall notDeclare or pay, and shall not or permit any of its Restricted Subsidiaries toother Loan Party to declare or pay, directly or indirectly:
(i) declare or pay , any dividend or make any other dividend, payment or other distribution of assets, properties, cash, rights, obligations or securities on account of the Company’s or any share of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company or any class 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 (A) dividends or distributions accrued or payable in Equity Interests (other than Disqualified Interests) of the Company or (B) 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 common stock of the Company or any direct share of any class of capital stock or indirect parent other ownership interests of any of the other Loan Parties (other than (1) stock splits and dividends payable solely in nonconvertible equity securities of the Company (other than Redeemable Stock or Exchangeable Stock (as such terms are defined in the Indenture on the Closing Date)) and (2) dividends and distributions made to such Borrower or a Loan Party; provided that if any assets dividended or distributed by any Loan Party constitute Collateral prior to such Equity Interests owned dividend or distribution, such assets shall remain Collateral after giving effect to such dividend or distribution and prior to such dividend or distribution such Borrower shall, and shall cause each applicable Subsidiary to, execute and deliver to the Administrative Agent all agreements, instruments and documents as may be necessary or reasonably requested by the Company or any Restricted Subsidiary Administrative Agent to perfect the security interest of the CompanyCollateral Agent in such Collateral);
(iii) make any payment on or with respect to, or purchase, redeem, defease retire, or otherwise acquire for value, or retire for value permit any Indebtedness that is subordinated to the Notes or any Note Guarantee (other than Indebtedness permitted under clause (vi) of the definition of “Permitted Debt”) except (a) a payment of interest or principal at Stated Maturity or (b) the other Loan Parties to purchase, repurchase redeem, retire, or other acquisition otherwise acquire for value, any shares of any such Indebtedness in anticipation class of satisfying a sinking fund obligation, principal installment or final maturity, in each case, due within one year of the date of such purchase, repurchase or other acquisition; or
(iv) make any Restricted Investment (all such payments and other actions set forth in clauses (i) through (iv) above being collectively referred to as “Restricted Payments”), unless, at the time of and after giving effect to such Restricted Payment:
(A) no 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 Fixed Charge Coverage Ratio test set forth in Section 4.09(a); and
(C) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after August 27, 2012 (excluding Restricted Payments permitted by clauses (i) (provided that at the time of declaring such dividend, such dividend was counted as a Restricted Payment) (ii), (iii), (iv), (v), (vi), (vii), (viii), (ix), (x), (xi), (xii), (xiii), (xiv) and (xv) of Section 4.07(b)), is less than the sum, without duplication, of
(1) 50% of the Consolidated Net Income of the Company for the period (taken as one accounting period) from April 2, 2012 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
(2) 100% of the aggregate net proceeds, including the fair market value of any property or Capital Interests, received by the Company since August 27, 2012 as a contribution to its equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified Interests) or from the issue or sale of Disqualified Interests or debt securities of the Company that have been converted into such Equity Interests (other than Equity Interests (or Disqualified Interests or convertible debt securities) sold to a Subsidiary of the Company), together with the aggregate cash and Cash Equivalents received by the Company or any of its Restricted Subsidiaries at the time of such conversion or exchange plus the amount by which Indebtedness of the Company and its Restricted Subsidiaries is reduced upon the conversion or exchange subsequent to August 27, 2012 of any Indebtedness or Disqualified Interests which are convertible into or exchangeable for Qualified Capital Interests common stock of the Company or any share of any class of capital stock or other ownership interests of any of the other Loan Parties or any warrants, rights, or options to acquire any such shares, now or hereafter outstanding, or make, or permit any of the other Loan Parties to make, any distribution of assets to any of its Restricted Subsidiaries, plus
(3) 100% of the amount received, including the fair market value of any property received after August 27, 2012 by means of (A) the sale or other disposition shareholders (other than distributions to such Borrower or any other Loan Party) (any such dividend, payment, distribution, purchase, redemption, retirement or acquisition being hereinafter referred to as a "RESTRICTED PAYMENT") other than (i) pursuant to the Company or a Restricted Subsidiary) terms of Restricted Investments made by the Company or its Restricted Subsidiaries and repurchases and redemptions any class of such Restricted Investments from the Company or its Restricted Subsidiaries and repayments of loans or advances which constitute Restricted Investments capital stock of the Company or its Restricted Subsidiaries or issued and outstanding (Band as in effect on) the sale (other than to Closing Date, any purchase or redemption of capital stock of the Company or a Restricted Subsidiary) of the Capital Interests of an Unrestricted Subsidiary or a distribution from an Unrestricted Subsidiary (other than in each case to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment) or a dividend from an Unrestricted Subsidiary, plus
(4) in the case of the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary or the merger or consolidation of an Unrestricted Subsidiary into the Company or a Restricted Subsidiary or the transfer of assets of an Unrestricted Subsidiary to the Company or a Restricted Subsidiary, the fair market value of the Investment in such Unrestricted Subsidiary (other than an Unrestricted Subsidiary to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment), plus
(5) $141.0 million. The Board of Directors 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 made by the Company and its Restricted Subsidiaries in the Subsidiary so designated will be deemed to be Restricted Payments or Permitted Investments, in the Company’s discretion, at the time of such designation and will reduce the amount available for Restricted Payments or Permitted Investments, as applicable. 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 Payments or Permitted Investments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary.
(b) Section 4.07(a) shall not prohibit:
(i) the payment of any dividend or other distribution or redemption within 60 days after the date of declaration or call for redemption thereof, if at said date of declaration or call for redemption such payment would have complied with the provisions of this Indenture;
(ii) the making of any Restricted Payment in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Subsidiary of the Company) of, Equity Interests capital stock of the Company (other than Redeemable Stock or Exchangeable Stock (as such terms are defined in the Indenture on the Closing Date)); (ii) payments made by such Borrower or any Disqualified Interestsother Loan Party pursuant to the Tax Sharing Agreement; and (iii) any cash dividend or from a contribution cash distribution on common stock of capital to the Company; provided 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 Section 4.07(a)(C)(2);
(iii) the defeasance, redemption, repurchase, replacement, extension, renewal, refinancing or retirement or other acquisition of subordinated Indebtedness or Disqualified Interests in exchange for or with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness;
(iv) the declaration, or payment of any dividend or other cash distribution 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 current or former officer, director, employee, consultant or agent of Company or any of its Restricted Subsidiaries (or Heirs or other permitted transferees thereof) upon death, disability, retirement, severance or termination of employment or service or in connection with a stock option plan or agreement, shareholders agreement, or similar agreement, plan or arrangement, including amendments thereto; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may not exceed: (A) $10.0 million in any calendar year, with unused amounts being available to be used in any later calendar year; provided that such amount in any calendar year may be increased in an amount not to exceed the net cash proceeds from the sale of Equity Interests (other than Disqualified Interests) of the Company to any officer, director, employee or agent of the Company or any Subsidiary of the Company that occurs after the date of this Indenture, to the extent such net cash proceeds have not otherwise been applied to make Restricted Payments pursuant to Section 4.07(a)(C)(2); plus (B) the cash proceeds of key man life insurance policies received by the Company and its Restricted Subsidiaries after the date of this Indenture that are used for the repurchase, redemption or other acquisition or retirement for value owned by the individual (or such individual’s estate) that is the subject of such insurance;
(vi) the repurchase of Equity Interests deemed to occur upon the exercise of options, warrants or other convertible securities to the extent such Equity Interests represent a portion of the exercise price of those options, warrants or other convertible securities and cash payments in lieu of the issuance of fractional shares in connection with the exercise of options, warrants, or other convertible securities;
(vii) the declaration and payment of regular quarterly dividends on the Company’s Equity Interests in accordance with past practice and not to exceed $0.05 per share;
(viii) additional Restricted Payments not to exceed $150.0 million after August 27, 2012;
(ix) the repurchase of the Company’s Equity Interests in an amount not to exceed $50.0 million after August 27, 2012;
(x) distributions or payments of Securitization Fees and purchases of Securitization Assets pursuant to a Securitization Repurchase Obligation in connection with a Qualified Securitization Financing;
(xi) any payments made in connection with the consummation of the transactions on substantially the terms described in the Offering Memorandum;
(xii) the payment of intercompany subordinated debt, the incurrence of which was permitted under Section 4.09(b)(vi);
(xiii) the purchase of fractional shares by the Company upon conversion of any securities of the Company into Capital Interests of the Company;
(xiv) the repurchase, redemption or other acquisition or retirement for value of subordinated Indebtedness or Disqualified Interests pursuant to the provisions similar to those described under Section 4.14 and Section 4.10; provided that all Notes tendered by Holders of the Notes in connection with the related Change of Control Offer or Asset Sale Offer, as applicable, have been repurchased, redeemed or acquired for value in full; and
(xv) payment of dividends on Disqualified Interests of the Company or a Restricted Subsidiary, the issuance of which is permitted by this Indenture.
(c) 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 Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall be determined by an officer of the Company. In the event that a Restricted Payment meets the criteria of more than one of the exceptions described in (i) through (xv) above or is entitled to be made pursuant to the first paragraph of this covenantpreceding clause (iii) shall not exceed, in the aggregate with each other such cash dividend and cash distribution made during the previous twelve-month period, (w) $150,000,000, if after giving effect to such cash dividend or cash distribution the Company mayshall have Liquidity equal to or greater than $300,000,000, in its sole discretion(x) $100,000,000, classifyif after giving effect to such cash dividend or cash distribution the Company shall have Liquidity equal to or greater than $150,000,000 and less than $300,000,000, (y) $75,000,000, if after giving effect to such cash dividend or cash distribution the Company shall have Liquidity equal to or greater than $100,000,000 and may later reclassify from time to timeless than $150,000,000 and (z) otherwise, such Restricted Payment or any portion thereof into or among any of such applicable provisionszero.
Appears in 1 contract
Samples: Credit Agreement (CMS Energy Corp)
Restricted Payments. (a) The Company shall Parent will not, and shall will not permit any of its Restricted Subsidiaries to, directly or indirectly:
(i1) declare or pay (without duplication) any dividend or make any other payment or distribution on account of the CompanyParent’s or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company Parent or any of its Restricted Subsidiaries) or to the direct or indirect holders of the CompanyParent’s or any of its Restricted Subsidiaries’ Equity Interests in their capacity as such (other than (A) dividends dividends, payments or distributions accrued or (x) payable in Equity Interests (other than Disqualified InterestsStock) of the Company Parent or (By) dividends or distributions to the Company Parent or a Restricted Subsidiary of the CompanyParent);
(ii2) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the CompanyParent) any Equity Interests of the Company Parent or any direct or indirect parent of the Company (its Restricted Subsidiaries held by Persons other than any such Equity Interests owned by the Company Parent or any of its Wholly Owned Restricted Subsidiary of the Company)Subsidiaries;
(iii3) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness that is subordinated to the Notes or any the Note Guarantee (other than Indebtedness permitted under clause (vi) of the definition of “Permitted Debt”) Guarantees, except (a) a payment of interest or principal at the Stated Maturity thereof or (b) the purchase, repurchase repurchase, redemption, defeasance or other acquisition or retirement of any such Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case, case due within one year of the date of such purchase, repurchase repurchase, redemption, defeasance or other acquisitionacquisition or retirement; or
(iv4) make any Restricted Investment Investment, (all such payments and other actions set forth in clauses (iSection 4.07(a)(1) through (iv4) 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 Parent 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 Incur at least $1.00 of additional addi- tional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.09(a); and
(Ciii) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company Parent and its Restricted Subsidiaries after August 27, 2012 the Issue Date (excluding Restricted Payments permitted by clauses (i) (provided that at the time of declaring such dividend, such dividend was counted as a Restricted Payment) (ii2), (iii3), (iv4), (v5), (vi), (vii), (viii), (ix), (x), (xi), (xii), (xiii), (xiv6) and (xv9) of Section 4.07(b)), is less than the sum, without duplication, of:
(1a) 50% of the Consolidated Net Income of the Company Parent for the period (taken as one accounting period) from April 2, 2012 the beginning of the last fiscal quarter commencing prior to the Issue Date to the end of the CompanyParent’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
(2b) 100% of the aggregate net proceeds, including the fair market value of any property or Capital Interests, cash proceeds received by the Company Parent since August 27, 2012 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 InterestsStock) of the Parent or from the issue or sale Incurrence of Disqualified Interests or debt securities Indebtedness of the Company Parent that have has been converted into or exchanged for such Equity Interests (other than Equity Interests (sold to, or Disqualified Interests or convertible debt securities) sold to Indebtedness held by, a Subsidiary of the CompanyParent), together plus
(c) with the aggregate cash and Cash Equivalents received respect to Restricted Investments made by the Company Parent and its Restricted Subsidiaries after the Issue Date, an amount equal to the net reduction in such Restricted Investments in any Person resulting from repayments of loans or advances, or other transfers of assets, in each case to the Parent or any of its Restricted Subsidiaries at or from the time net cash proceeds from the sale of any such conversion Restricted Investment (except, in each case, to the extent any such payment or exchange plus proceeds are included in the calculation of Consolidated Net Income), from the release of any Guarantee (except to the extent any amounts are paid under such Guarantee) or from redesignations of Unrestricted Subsidiaries as Restricted Subsidiaries, not to exceed, in each case, the amount of Restricted Investments previously made by which Indebtedness of the Company and its Restricted Subsidiaries is reduced upon the conversion or exchange subsequent to August 27, 2012 of any Indebtedness or Disqualified Interests which are convertible into or exchangeable for Qualified Capital Interests of the Company Parent or any of its Restricted Subsidiaries, plus
(3) 100% of the amount received, including the fair market value of any property received after August 27, 2012 by means of (A) the sale Subsidiaries in such Person or other disposition (other than to the Company or a Restricted Subsidiary) of Restricted Investments made by the Company or its Restricted Subsidiaries and repurchases and redemptions of such Restricted Investments from the Company or its Restricted Subsidiaries and repayments of loans or advances which constitute Restricted Investments of the Company or its Restricted Subsidiaries or (B) the sale (other than to the Company or a Restricted Subsidiary) of the Capital Interests of an Unrestricted Subsidiary or a distribution from an Unrestricted Subsidiary (other than in each case to after the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment) or a dividend from an Unrestricted Subsidiary, plus
(4) in the case of the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary or the merger or consolidation of an Unrestricted Subsidiary into the Company or a Restricted Subsidiary or the transfer of assets of an Unrestricted Subsidiary to the Company or a Restricted Subsidiary, the fair market value of the Investment in such Unrestricted Subsidiary (other than an Unrestricted Subsidiary to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment), plus
(5) $141.0 million. The Board of Directors 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 in the Subsidiary so designated will be deemed to be Restricted Payments or Permitted Investments, in the Company’s discretion, at the time of such designation and will reduce the amount available for Restricted Payments or Permitted Investments, as applicable. 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 Payments or Permitted Investments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted SubsidiaryIssue Date.
(b) The provisions of Section 4.07(a) shall not prohibit:prohibit (so long as, in the case of Section 4.07(b)(7), (8) and (10) below, no Default has occurred and is continuing or would be caused thereby):
(i1) the payment of any dividend or other distribution or redemption within 60 days after the date of declaration or call for redemption thereof, if at said date of declaration or call for redemption such payment would have complied with the provisions of this Indenture;
(ii2) the making payment of any dividend by a Restricted Payment Subsidiary of the Parent to the holders of its Common Stock on a pro rata basis;
(3) 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 Parent or any of its Restricted Subsidiaries in exchange for, or out of the net cash proceeds of a contribution to the common equity of the Parent or a substantially concurrent sale (other than to a Subsidiary of the CompanyParent) of, Equity Interests of the Company (other than any Disqualified InterestsStock) or from a contribution of capital to the CompanyParent; 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 Section 4.07(a)(C)(24.07(a)(3)(b);
(iii4) the repayment, defeasance, redemption, repurchase, replacement, extension, renewal, refinancing or retirement repurchase or other acquisition of subordinated Indebtedness of the Company or Disqualified Interests in exchange for or any Guarantor with the net cash proceeds from an incurrence Incurrence of Permitted Refinancing Indebtedness;
(iv5) the declarationInvestments acquired as a capital contribution to, or payment in exchange for, or out of the net cash proceeds of a substantially concurrent offering of, Equity Interests (other than Disqualified Stock) of the Parent; provided that the amount of any dividend such net cash proceeds that are utilized for any such acquisition or other distribution by a Subsidiary of the Company to the holders of its common Equity Interests on a pro rata basisexchange shall be excluded from Section 4.07(a)(3)(b);
(v6) the purchase, repurchase, redemption or other redemption, acquisition or retirement for value of any Capital Stock of the Parent upon the exercise of warrants, options or similar rights if such Capital Stock constitutes all or a portion of the exercise price or is surrendered in connection with satisfying any federal or state income tax obligation incurred in connection with such exercise; provided that no cash payment in respect of such purchase, repurchase, redemption, acquisition, retirement or exercise shall be made by the Parent or any of its Restricted Subsidiaries;
(7) payments to the Parent to permit the Parent, and the use by the Parent of such payments, to redeem Equity Interests of the Company or any Subsidiary of the Company Parent held by any current or former employee, officer, director, employee, director or consultant or agent of Company the Parent (or any of its Restricted Subsidiaries (Subsidiaries) or Heirs their respective estates, spouses, former spouses or other permitted transferees thereof) upon deathfamily members pursuant to the terms of any employee equity subscription agreement, disability, retirement, severance or termination of employment or service or in connection with a stock option plan or agreement, shareholders agreement, agreement or similar agreement, plan or arrangement, including amendments theretoagreement entered into in the ordinary course of business; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may not exceed: (A) $10.0 million in any calendar yearfiscal year will not exceed $3.0 million;
(8) payments to the Parent to permit the Parent, with unused amounts being available and the use by the Parent of such payments, to be used in any later calendar year; provided that such amount in any calendar year may be increased declare and pay cash dividends on the Parent’s issued and outstanding Common Stock in an amount not to exceed the net cash proceeds from the sale of Equity Interests $0.24 per share (other than Disqualified Interests) of the Company to any officer, director, employee or agent of the Company or any Subsidiary of the Company that occurs as adjusted for stock splits and similar transactions after the date of this Indenture, to the extent such net cash proceeds have not otherwise been applied to make Restricted Payments pursuant to Section 4.07(a)(C)(2); plus (BIssue Date) the cash proceeds of key man life insurance policies received by the Company and its Restricted Subsidiaries after the date of this Indenture that are used for the repurchase, redemption or other acquisition or retirement for value owned by the individual (or such individual’s estate) that is the subject of such insuranceper fiscal year;
(vi9) the repurchase payment of Equity Interests deemed to occur upon the exercise of options, warrants or other convertible securities to the extent such Equity Interests represent a portion of the exercise price of those options, warrants or other convertible securities and cash payments in lieu of the issuance of fractional shares of Equity Interests upon conversion or exchange of securities convertible into or exchangeable for Equity Interests of the Parent; provided that any such cash payment shall not be for the purpose of evading the limitations of this Section 4.07 (as determined in connection with good faith by the exercise Board of options, warrants, or other convertible securities;Directors of the Parent); and
(vii10) other Restricted Payments not otherwise permitted pursuant to this Section 4.07 in an aggregate principal amount since the declaration and payment of regular quarterly dividends on the Company’s Equity Interests in accordance with past practice and Issue Date not to exceed $0.05 per share;
(viii) additional Restricted Payments not to exceed $150.0 million after August 27, 2012;
(ix) the repurchase of the Company’s Equity Interests in an amount not to exceed $50.0 million after August 27, 2012;
(x) distributions or payments of Securitization Fees and purchases of Securitization Assets pursuant to a Securitization Repurchase Obligation in connection with a Qualified Securitization Financing;
(xi) any payments made in connection with the consummation of the transactions on substantially the terms described in the Offering Memorandum;
(xii) the payment of intercompany subordinated debt, the incurrence of which was permitted under Section 4.09(b)(vi);
(xiii) the purchase of fractional shares by the Company upon conversion of any securities of the Company into Capital Interests of the Company;
(xiv) the repurchase, redemption or other acquisition or retirement for value of subordinated Indebtedness or Disqualified Interests pursuant to the provisions similar to those described under Section 4.14 and Section 4.10; provided that all Notes tendered by Holders of the Notes in connection with the related Change of Control Offer or Asset Sale Offer, as applicable, have been repurchased, redeemed or acquired for value in full; and
(xv) payment of dividends on Disqualified Interests of the Company or a Restricted Subsidiary, the issuance of which is permitted by this Indenture40.0 million.
(c) 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 to or by the Company Parent 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 shall be determined by an officer (other than (x) the declaration and payment of cash dividends on the Company. In Parent’s Common Stock in amounts not exceeding the event that a amounts set forth in Section 4.07(b)(8) or (y) any Restricted Payment meets the criteria of more than one of the exceptions described in (i) through (xv) above or is entitled to be made Payments pursuant to the first paragraph Section 4.07(b)(6) or (9)) or any series of this covenantrelated Restricted Payments in an amount in excess of $1.0 million, the Company may, in its sole discretion, classify, and may later reclassify from time Parent shall deliver to time, 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 4.08 were computed, together with a copy of any opinion or any portion thereof into or among any of such applicable provisionsappraisal required by this Indenture.
Appears in 1 contract
Samples: Indenture (Bon Ton Stores Inc)
Restricted Payments. (a) 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 '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 's or any of its Restricted Subsidiaries’ ' Equity Interests in their capacity as such (other than (A) dividends or distributions accrued or payable (x) solely in Equity Interests (other than Disqualified InterestsStock) of the Company or (B) dividends or distributions y), in the case of the Company and its Restricted Subsidiaries, to the Company or a Restricted Subsidiary of the Company);
(iib) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the CompanyCompany or any of its Restricted Subsidiaries) any Equity Interests of the Company or any direct or indirect parent of the Company or any Restricted Subsidiary of the Company (other than than, in the case of the Company and its Restricted Subsidiaries, any such Equity Interests owned by the Company or any Restricted Subsidiary of the Company);; or
(iiic) 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 to the Notes or any Note Guarantee (other than Indebtedness permitted under clause (vi) of the definition of “Permitted Debt”) Notes, except (a) a payment of interest or principal at the Stated Maturity or (b) the purchasethereof, repurchase or other acquisition of any such Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case, due within one year of the date of such purchase, repurchase or other acquisition; or
(iv) make any Restricted Investment (all such payments and other actions set forth in clauses (ia) through (ivc) 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;; 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 Fixed Charge Coverage Leverage Ratio test set forth in the first paragraph of Section 4.09(a)4.10; and
(C3) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and each of its Restricted Subsidiaries after August 27March 17, 2012 1999 (excluding Restricted Payments permitted by clauses (i) (provided that at the time of declaring such dividend, such dividend was counted as a Restricted Payment) (ii2), (iii3), (iv4), (v5), (vi6), (vii), (viii), (ix), (x), (xi), (xii), (xiii), (xiv7) and (xv) 8) of Section 4.07(b)the next succeeding paragraph), is less than shall not exceed, at the sumdate of determination, without duplication, the sum of:
(1a) 50an amount equal to 100% of the Consolidated Net Income EBITDA of the Company for the period (taken as one accounting period) from April 2since March 17, 2012 1999 to the end of the Company’s 's most recently ended full fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (oravailable, if such Consolidated Net Income for such period is taken as a deficitsingle accounting period, less 100% the product of such deficit)1.2 times the Consolidated Interest Expense of the Company since March 17, 1999 to the end of the Company's most recently ended full fiscal quarter for which internal financial statements are available, taken as a single accounting period, plus
(2b) an amount equal to 100% of the aggregate net proceeds, including the fair market value of Capital Stock Sale Proceeds less any property or such Capital Interests, received by the Company since August 27, 2012 as a contribution Stock Sale Proceeds used in connection with (i) an Investment made pursuant to its equity capital or from the issue or sale of Equity Interests clause (5) of the Company definition of "Permitted Investments" or (other than Disqualified Interestsii) or from the issue or sale incurrence of Disqualified Interests or debt securities Indebtedness pursuant to clause (10) of the Company that have been converted into such Equity Interests (other than Equity Interests (or Disqualified Interests or convertible debt securities) sold to a Subsidiary of the Company), together with the aggregate cash and Cash Equivalents received by the Company or any of its Restricted Subsidiaries at the time of such conversion or exchange plus the amount by which Indebtedness of the Company and its Restricted Subsidiaries is reduced upon the conversion or exchange subsequent to August 27, 2012 of any Indebtedness or Disqualified Interests which are convertible into or exchangeable for Qualified Capital Interests of the Company or any of its Restricted SubsidiariesSection 4.10, plus
(3c) 100% of the amount received, including the fair market value of any property received after August 27, 2012 by means of (A) the sale $100 million. So long as no Default has occurred and is continuing or other disposition (other than to the Company or a Restricted Subsidiary) of Restricted Investments made by the Company or its Restricted Subsidiaries and repurchases and redemptions of such Restricted Investments from the Company or its Restricted Subsidiaries and repayments of loans or advances which constitute Restricted Investments of the Company or its Restricted Subsidiaries or (B) the sale (other than to the Company or a Restricted Subsidiary) of the Capital Interests of an Unrestricted Subsidiary or a distribution from an Unrestricted Subsidiary (other than in each case to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment) or a dividend from an Unrestricted Subsidiary, plus
(4) in the case of the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary or the merger or consolidation of an Unrestricted Subsidiary into the Company or a Restricted Subsidiary or the transfer of assets of an Unrestricted Subsidiary to the Company or a Restricted Subsidiarywould be caused thereby, the fair market value of the Investment in such Unrestricted Subsidiary (other than an Unrestricted Subsidiary to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment), plus
(5) $141.0 million. The Board of Directors 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 in the Subsidiary so designated will be deemed to be Restricted Payments or Permitted Investments, in the Company’s discretion, at the time of such designation and will reduce the amount available for Restricted Payments or Permitted Investments, as applicable. 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 Payments or Permitted Investments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary.
(b) Section 4.07(a) preceding provisions shall not prohibit:
(i1) the payment of any dividend or other distribution or redemption within 60 days after the date of declaration or call for redemption thereof, if at said date of declaration or call for redemption such payment would have complied with the provisions of this Indenture;
(ii) the making of any Restricted Payment in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Subsidiary of the Company) of, Equity Interests of the Company (other than any Disqualified Interests) or from a contribution of capital to the Company; 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 Section 4.07(a)(C)(2);
(iii) the defeasance, redemption, repurchase, replacement, extension, renewal, refinancing or retirement or other acquisition of subordinated Indebtedness or Disqualified Interests in exchange for or with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness;
(iv) the declaration, or payment of any dividend or other distribution 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 current or former officer, director, employee, consultant or agent of Company or any of its Restricted Subsidiaries (or Heirs or other permitted transferees thereof) upon death, disability, retirement, severance or termination of employment or service or in connection with a stock option plan or agreement, shareholders agreement, or similar agreement, plan or arrangement, including amendments thereto; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may not exceed: (A) $10.0 million in any calendar year, with unused amounts being available to be used in any later calendar year; provided that such amount in any calendar year may be increased in an amount not to exceed the net cash proceeds from the sale of Equity Interests (other than Disqualified Interests) of the Company to any officer, director, employee or agent of the Company or any Subsidiary of the Company that occurs after the date of this Indenture, to the extent such net cash proceeds have not otherwise been applied to make Restricted Payments pursuant to Section 4.07(a)(C)(2); plus (B) the cash proceeds of key man life insurance policies received by the Company and its Restricted Subsidiaries after the date of this Indenture that are used for the repurchase, redemption or other acquisition or retirement for value owned by the individual (or such individual’s estate) that is the subject of such insurance;
(vi) the repurchase of Equity Interests deemed to occur upon the exercise of options, warrants or other convertible securities to the extent such Equity Interests represent a portion of the exercise price of those options, warrants or other convertible securities and cash payments in lieu of the issuance of fractional shares in connection with the exercise of options, warrants, or other convertible securities;
(vii) the declaration and payment of regular quarterly dividends on the Company’s Equity Interests in accordance with past practice and not to exceed $0.05 per share;
(viii) additional Restricted Payments not to exceed $150.0 million after August 27, 2012;
(ix) the repurchase of the Company’s Equity Interests in an amount not to exceed $50.0 million after August 27, 2012;
(x) distributions or payments of Securitization Fees and purchases of Securitization Assets pursuant to a Securitization Repurchase Obligation in connection with a Qualified Securitization Financing;
(xi) any payments made in connection with the consummation of the transactions on substantially the terms described in the Offering Memorandum;
(xii) the payment of intercompany subordinated debt, the incurrence of which was permitted under Section 4.09(b)(vi);
(xiii) the purchase of fractional shares by the Company upon conversion of any securities of the Company into Capital Interests of the Company;
(xiv) the repurchase, redemption or other acquisition or retirement for value of subordinated Indebtedness or Disqualified Interests pursuant to the provisions similar to those described under Section 4.14 and Section 4.10; provided that all Notes tendered by Holders of the Notes in connection with the related Change of Control Offer or Asset Sale Offer, as applicable, have been repurchased, redeemed or acquired for value in full; and
(xv) payment of dividends on Disqualified Interests of the Company or a Restricted Subsidiary, the issuance of which is permitted by this Indenture.
(c) 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 Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall be determined by an officer of the Company. In the event that a Restricted Payment meets the criteria of more than one of the exceptions described in (i) through (xv) above or is entitled to be made pursuant to the first paragraph of this covenant, the Company may, in its sole discretion, classify, and may later reclassify from time to time, such Restricted Payment or any portion thereof into or among any of such applicable provisions.
Appears in 1 contract
Restricted Payments. (a) The Company shall Borrower 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 CompanyBorrower’s or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company Borrower or any of its Restricted Subsidiaries) or to the direct or indirect holders of the CompanyBorrower’s or any of its Restricted Subsidiaries’ Equity Interests in their capacity as such (other than (A) dividends or distributions accrued or payable in Equity Interests (other than Disqualified InterestsStock) of the Company Borrower or (B) dividends or distributions to the Company Borrower or a Restricted Subsidiary of the CompanyBorrower);
(ii) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the CompanyBorrower) any Equity Interests of the Company Borrower or any direct or indirect parent of the Company Borrower (other than any such Equity Interests owned by the Company Borrower or any Restricted Subsidiary of the CompanyBorrower);; or
(iii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness that is subordinated to the Notes or any Note Guarantee (other than Indebtedness permitted under clause (vi) of the definition of “Permitted Debt”) except (a) a payment of interest or principal at Stated Maturity or (b) the purchase, repurchase or other acquisition of any such Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case, due within one year of the date of such purchase, repurchase or other acquisitionRestricted Investment; or
(iv) make any Restricted Investment (all such payments and other actions set forth in these clauses (i) through (iviii) above being collectively referred to as “Restricted Payments”), ,” unless, at the time of and after giving effect to such Restricted Payment:
(A) no Event of Specified Default shall have has occurred and be is continuing or would occur as a consequence thereof;
(B) the Company would, at the time of such any Restricted Payment described in clause (i) and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning (ii) 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 Section 4.09(a)definition thereof; and
(CB) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company Borrower and its Restricted Subsidiaries after August 27, 2012 since the Closing Date (excluding Restricted Payments permitted by clauses (i) (provided that at the time of declaring such dividend, such dividend was counted as a Restricted Payment) (ii), (iii), (iv), (v), (vi), (vii), (viii), (ix), (x), (xi), (xii), (xiii), (xiv) and (xvxii) of Section 4.07(b10.03(b)), is less than the sum, without duplication, of:
(1) 50Consolidated Adjusted EBITDA of the Borrower, minus 140% of the Consolidated Net Income Interest Expense of the Company Borrower, in each case for the period (taken as one accounting period) from April 2January 1, 2012 2015 to the end of the CompanyBorrower’s most recently ended fiscal quarter for which internal financial statements are available Calculation Period 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
(2) 100% of the aggregate net proceeds, including the fair market value Fair Market Value of any property or Capital Interests, assets and the aggregate net cash proceeds in each case received by the Company Borrower or any of its Restricted Subsidiaries since August 27the Closing Date (x) in exchange for, 2012 as a contribution to its equity capital or from the issue or sale of, Qualified Equity Interests or from the issue or sale of Equity Interests of the Company (other than convertible or exchangeable Disqualified Interests) Stock or from the issue convertible or sale of Disqualified Interests or exchangeable debt securities of the Company Borrower that have been converted into or exchanged for such Qualified Equity Interests and/or (y) a contribution to its common equity with the net cash and Cash Equivalent proceeds from the issuance and sale by any direct or indirect parent of the Borrower of its Qualified Equity Interests or a contribution to its common equity (in each case of (x) and (y), other than Qualified Equity Interests (or Disqualified Interests Stock or convertible debt securities) sold to a Subsidiary of the CompanyBorrower), together with the aggregate cash and Cash Equivalents received by the Company or any of its Restricted Subsidiaries at the time of such conversion or exchange plus the amount by which Indebtedness of the Company and its Restricted Subsidiaries is reduced upon the conversion or exchange subsequent to August 27, 2012 of any Indebtedness or Disqualified Interests which are convertible into or exchangeable for Qualified Capital Interests of the Company or any of its Restricted Subsidiaries, plus
(3) 100% of the amount received, including the fair market value of any property received after August 27, 2012 by means of (A) the sale or other disposition (other than to the Company or a Restricted Subsidiary) of Restricted Investments made by the Company or its Restricted Subsidiaries and repurchases and redemptions of such Restricted Investments from the Company or its Restricted Subsidiaries and repayments of loans or advances which constitute Restricted Investments of the Company or its Restricted Subsidiaries or (B) the sale (other than to the Company or a Restricted Subsidiary) of the Capital Interests of an Unrestricted Subsidiary or a distribution from an Unrestricted Subsidiary (other than in each case to the extent that any Restricted Investment that was made after the Closing Date is sold for cash or otherwise liquidated or repaid for cash after the Closing Date, the cash return with respect to such Restricted Investment (less the cost of disposition, if any) to the extent not already included in such Unrestricted Subsidiary constituted a Permitted Investment) or a dividend from an Unrestricted Subsidiarythe Consolidated Adjusted EBITDA of the Borrower since the Closing Date, plus
(4) 100% of any cash received by (i) the Borrower or a Restricted Subsidiary of the Borrower after the Closing Date from an Unrestricted Subsidiary or (ii) the Borrower or a Restricted Subsidiary of the Borrower that is not an Excluded Project Subsidiary after the Closing Date from an Excluded Project Subsidiary, in the case of the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary (i) or the merger or consolidation of an Unrestricted Subsidiary into the Company or a Restricted Subsidiary or the transfer of assets of an Unrestricted Subsidiary to the Company or a Restricted Subsidiary(ii), the fair market value of the Investment in such Unrestricted Subsidiary (other than an Unrestricted Subsidiary to the extent that such cash was not otherwise included in Consolidated Net Income or Consolidated Adjusted EBITDA of the Investment in Borrower for such Unrestricted Subsidiary constituted a Permitted Investment)period, plus
(5) $141.0 million. The Board to the extent that any Unrestricted Subsidiary of Directors may designate any the Borrower is redesignated as a Restricted Subsidiary, or an Excluded Project Subsidiary is designated as a Restricted Subsidiary to be that is not an Unrestricted Excluded Project Subsidiary, after the Closing Date, the Fair Market Value of the Borrower’s Investment in such Subsidiary if such designation would not cause a Default. For purposes as of making such determination, all outstanding Investments by the Company and its Restricted Subsidiaries in the Subsidiary so designated will be deemed to be Restricted Payments or Permitted Investments, in the Company’s discretion, at the time date of such designation and will reduce the amount available for Restricted Payments or Permitted Investments, as applicable. 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 Payments or Permitted Investments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiaryredesignation.
(b) The provisions of Section 4.07(a10.03(a) shall not prohibit:
(i) the payment of any dividend or other distribution or the consummation of any redemption within 60 90 days after the date of declaration of the dividend or call for distribution or giving of the redemption thereofnotice, as the case may be, if at said the date of declaration or call for notice, the dividend, distribution or redemption such payment would have complied with the provisions of this IndentureAgreement;
(ii) so long as no Default has occurred and is continuing or would be caused thereby, the making of any Restricted Payment in exchange for, or out of the net cash aggregate proceeds of the substantially concurrent sale (other than to a Subsidiary of the CompanyBorrower) of, Equity Interests of the Company Borrower or any direct or indirect parent company of the Borrower (other than any Disqualified Interests) Stock), or from a the contribution of common equity capital to the CompanyBorrower; provided that the amount of any such net cash proceeds that are utilized for any such redemption, repurchase, retirement, defeasance or other acquisition shall Restricted Payment will be excluded from Section 4.07(a)(C)(210.03(a)(iii)(B);
(iii) payments in connection with Indebtedness incurred in reliance on Section 10.04(b)(xix) (but not the defeasance, redemption, repurchase, replacement, extension, renewal, refinancing or retirement or other acquisition of subordinated Indebtedness or Disqualified Interests in exchange for or with the net cash proceeds from an incurrence of Permitted Refinancing Indebtednessthereof);
(iv) the declaration, or payment of any dividend (or, in the case of any partnership or other distribution limited liability company, any similar distribution) by a Restricted Subsidiary of the Company Borrower to the holders of its common Equity Interests on a pro rata basisbasis (taking into account the relative preferences, if any, of the various classes of Equity Interests of such Restricted Subsidiary);
(v) so long as no Default has occurred and is continuing or would be caused thereby, (A) the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company Borrower or any Restricted Subsidiary of the Company Borrower held by any current or former officer, director, employee, employee or consultant or agent of Company the Borrower or any of its Restricted Subsidiaries (or Heirs or other permitted transferees thereof) upon deathpursuant to any equity subscription agreement, disability, retirementstock option agreement, severance agreement, shareholders’ agreement or termination similar agreement or employee benefit plan or (B) the cancellation of employment Indebtedness owing to the Borrower or service any of its Restricted Subsidiaries from any current or former officer, director, employee or consultant of the Borrower or any of its Restricted Subsidiaries in connection with a stock option plan repurchase of Equity Interests of the Borrower or agreement, shareholders agreement, or similar agreement, plan or arrangement, including amendments theretoany of its Restricted Subsidiaries; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may not exceed: the actions in clause (A) may not exceed $10.0 million 20,000,000 in any calendar year, twelve-month period (with unused amounts being available to be used in any later calendar yearperiod being carried over to succeeding periods); provided provided, further that (x) such amount in any calendar year may be increased in an amount not to exceed the net cash proceeds from the sale of Equity Interests (other than Disqualified Interests) of the Company to any officer, director, employee or agent of the Company or any Subsidiary of the Company that occurs after the date of this Indenture, to the extent such net cash proceeds have not otherwise been applied to make Restricted Payments pursuant to Section 4.07(a)(C)(2); plus (B) by the cash proceeds of “key man man” life insurance policies received by the Company Borrower and its Restricted Subsidiaries after the date Closing Date less any amount of such cash proceeds previously applied to the making of Restricted Payments pursuant to this Indenture that are used for clause (v) since the Closing Date and (y) cancellation of the Indebtedness owing to the Borrower from employees, officers, directors and consultants of the Borrower or any of its Restricted Subsidiaries in connection with a repurchase of Equity Interests of the Borrower from such Persons shall be permitted under this clause (v) as if it were a repurchase, redemption or other redemption, acquisition or retirement for value owned by the individual (or such individual’s estate) that is the subject of such insurancehereto;
(vi) the repurchase of Equity Interests deemed to occur upon in connection with the exercise of options, warrants or other convertible securities stock options to the extent such Equity Interests represent a portion of the exercise price of those optionsstock options and the repurchases of Equity Interests in connection with the withholding of a portion of the Equity Interests granted or awarded to an employee to pay for the taxes payable by such employee upon such grant or award;
(vii) so long as no Default has occurred and is continuing or would be caused thereby, warrants the declaration and payment of regularly scheduled or accrued dividends to holders of any class or series of (A) preferred stock outstanding on the Closing Date, (B) Disqualified Stock of the Borrower or any Restricted Subsidiary of the Borrower issued on or after the Closing Date in accordance with the terms of this Agreement or (C) preferred stock issued on or after the Closing Date in accordance with the terms of this Agreement or, in the event that any of the instruments described in (A) through (C) above have been converted into or exchanged for Qualified Equity Interests, other convertible securities Restricted Payments in an amount no greater than and cash with timing of such payments not earlier than the dividends that would have otherwise been payable on such instruments;
(viii) payments to holders of the Borrower’s Capital Stock (or options with respect thereto) in lieu of the issuance of fractional shares in connection of its Capital Stock (or options with the exercise of options, warrants, or other convertible securities;
(vii) the declaration and payment of regular quarterly dividends on the Company’s Equity Interests in accordance with past practice and not to exceed $0.05 per share;
(viii) additional Restricted Payments not to exceed $150.0 million after August 27, 2012respect thereto);
(ix) the repurchase purchase, redemption, acquisition, cancellation or other retirement for a nominal value per right of any rights granted to all the holders of Capital Stock of the CompanyBorrower pursuant to any shareholders’ rights plan adopted for the purpose of protecting shareholders from unfair takeover tactics; provided that any such purchase, redemption, acquisition, cancellation or other retirement of such rights is not for the purpose of evading the limitations of this covenant (all as determined in good faith by a senior financial officer of the Borrower);
(x) [Reserved];
(xi) Investments in any Person(s) engaged primarily in one or more Permitted Businesses (including, without limitation, Excluded Subsidiaries, Unrestricted Subsidiaries, and Persons that are not Subsidiaries of the Borrower) in an aggregate principal amount not to exceed amounts received by the Borrower in cash from such Person(s) pursuant to any shared services agreement that is on terms otherwise required under Section 10.06(b)(xx);
(xii) in respect of any taxable period for which the Borrower or any of its Subsidiaries are members of a consolidated, combined, affiliated, unitary or similar Tax group for U.S. federal or applicable state, local or foreign Tax purposes of which any direct or indirect parent of the Borrower is the common parent, or for which the Borrower is a disregarded entity for U.S. federal or applicable state or local income Tax purposes, dividends or distributions with respect to the Borrower’s Equity Interests in an amount not to exceed $50.0 million after August 27the excess, 2012;
if any, of (xA) distributions the amount of any such U.S. federal, state, local or payments foreign income Taxes that the Borrower and its Subsidiaries would have paid for such taxable period had the Borrower and/or its Subsidiaries, as applicable, been a stand-alone corporate taxpayer or a stand-alone corporate group over (B) the amount of Securitization Fees such Taxes paid directly by the Borrower and purchases of Securitization Assets pursuant its Subsidiaries to a Securitization Repurchase Obligation in connection with a Qualified Securitization Financing;
(xi) any payments made in connection with the consummation of the transactions on substantially the terms described in the Offering Memorandum;
(xii) the payment of intercompany subordinated debt, the incurrence of which was permitted under Section 4.09(b)(vi);Governmental Authority for such taxable period; and
(xiii) so long as no Default has occurred and is continuing or would be caused thereby, other Restricted Payments since the purchase Closing Date in an aggregate amount not to exceed the greater of fractional shares by the Company upon conversion (A) $350,000,000 and (B) 3.0% of any securities of the Company into Capital Interests of the Company;
(xiv) the repurchase, redemption or other acquisition or retirement for value of subordinated Indebtedness or Disqualified Interests pursuant to the provisions similar to those described under Section 4.14 and Section 4.10; provided that all Notes tendered by Holders of the Notes in connection with the related Change of Control Offer or Asset Sale Offer, as applicable, have been repurchased, redeemed or acquired for value in full; and
(xv) payment of dividends on Disqualified Interests of the Company or a Restricted Subsidiary, the issuance of which is permitted by this Indenture.
(c) Consolidated Total Assets. 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 Borrower 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 by an officer Authorized Officer of the Company. In Borrower; provided, that if the event that a Restricted Payment meets the criteria Fair Market Value of more than one such assets or securities involves an aggregate amount in excess of the exceptions described in (i) through (xv) above or is entitled to be made pursuant $100,000,000, such Authorized Officer shall deliver to the first paragraph of this covenant, Administrative Agent an Officer’s Certificate with respect to the Company may, in its sole discretion, classify, and may later reclassify from time to time, such Restricted Payment or any portion thereof into or among any Fair Market Value of such applicable provisionsassets or securities.
Appears in 1 contract
Restricted Payments. (a) 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 its 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 (A) dividends or distributions accrued or payable (x) solely in Equity Interests (other than Disqualified InterestsStock) of the Company or (By) dividends or distributions in the case of the Company and its Restricted Subsidiaries, to the Company or a Restricted Subsidiary of the Companythereof);
(iib) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the CompanyCompany or any of its Restricted Subsidiaries) any Equity Interests of the Company or any direct or indirect parent Parent of the Company or any Restricted Subsidiary of the Company (other than than, in the case of the Company and its Restricted Subsidiaries, any such Equity Interests owned by the Company or any of its Restricted Subsidiary of the CompanySubsidiaries);; or
(iiic) 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 (other than intercompany Indebtedness among the Company and its Restricted Subsidiaries that is permitted to be incurred under this Supplemental Indenture) that is subordinated to the Notes or any Note Guarantee (other than Indebtedness permitted under clause (vi) of the definition of “Permitted Debt”) Notes, except (a) a payment of interest or principal at the Stated Maturity or (b) the purchase, repurchase or other acquisition of any such Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case, due within one year of the date of such purchase, repurchase or other acquisition; or
(iv) make any Restricted Investment thereof (all such payments and other actions set forth in clauses (ia) through (ivc) 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 under this Indenture shall have occurred and be continuing or would occur as a consequence thereof;
(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 Fixed Charge Coverage Leverage Ratio test set forth in the first paragraph of Section 4.09(a)4.10; and
(C3) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries from and after August 27April 1, 2012 2010 (excluding Restricted Payments permitted by clauses (i2) through (provided that 17) of the next succeeding paragraph and made on or after April 1, 2010), shall not exceed, at the time date of declaring such dividenddetermination, such dividend was counted as a Restricted Payment) (ii), (iii), (iv), (v), (vi), (vii), (viii), (ix), (x), (xi), (xii), (xiii), (xiv) and (xv) of Section 4.07(b)), is less than the sum, without duplication, sum of:
(1a) 50an amount equal to 100% of the Consolidated Net Income EBITDA of the Company for the period (taken as one accounting period) from beginning on the first day of the fiscal quarter commencing April 21, 2012 2010 to the end of the Company’s most recently ended full fiscal quarter for which internal financial statements are available at available, taken as a single accounting period, less the time product of such Restricted Payment (or, if such 1.3 times the Consolidated Net Income Interest Expense of the Company for such period is a deficitperiod, less plus
(b) an amount equal to 100% of Capital Stock Sale Proceeds (reduced for purpose of this clause (b) by (A) any amount of such deficitCapital Stock Sale Proceeds (i) used in connection with an Investment made on or after the Issue Date pursuant to clause (5) of the definition of “Permitted Investments,” (ii) applied to make a Restricted Payment pursuant to clause (2) or sub-clause (y)(2) of clause (9) or clause (14) below, or (iii) relied upon for purposes of incurring Contribution Indebtedness and (B) the amount of Restricted Payments made pursuant to sub-clause (A)(i), (B) or (C) of clause (8) and sub-clause (y)(1) of clause (9) below, in each case, by an amount not to exceed the amount of Capital Stock Sale Proceeds from any Charter Subsidiary Refinancing Indebtedness or Charter Parent Refinancing Indebtedness), plus
(2) 100% of the aggregate net proceeds, including the fair market value of any property or Capital Interests, received by the Company since August 27, 2012 as a contribution to its equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified Interests) or from the issue or sale of Disqualified Interests or debt securities of the Company that have been converted into such Equity Interests (other than Equity Interests (or Disqualified Interests or convertible debt securities) sold to a Subsidiary of the Company), together with the aggregate cash and Cash Equivalents received by the Company or any of its Restricted Subsidiaries at the time of such conversion or exchange plus the amount by which Indebtedness of the Company and its Restricted Subsidiaries is reduced upon the conversion or exchange subsequent to August 27, 2012 of any Indebtedness or Disqualified Interests which are convertible into or exchangeable for Qualified Capital Interests of the Company or any of its Restricted Subsidiaries, plus
(3) 100% of the amount received, including the fair market value of any property received after August 27, 2012 by means of (A) the sale or other disposition (other than to the Company or a Restricted Subsidiary) of Restricted Investments made by the Company or its Restricted Subsidiaries and repurchases and redemptions of such Restricted Investments from the Company or its Restricted Subsidiaries and repayments of loans or advances which constitute Restricted Investments of the Company or its Restricted Subsidiaries or (B) the sale (other than to the Company or a Restricted Subsidiary) of the Capital Interests of an Unrestricted Subsidiary or a distribution from an Unrestricted Subsidiary (other than in each case to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment) or a dividend from an Unrestricted Subsidiary, plus
(4) in the case of the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary or the merger or consolidation of an Unrestricted Subsidiary into the Company or a Restricted Subsidiary or the transfer of assets of an Unrestricted Subsidiary to the Company or a Restricted Subsidiary, the fair market value of the Investment in such Unrestricted Subsidiary (other than an Unrestricted Subsidiary to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment), plus
(5c) $141.0 million2.0 billion. The Board of Directors 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 in the Subsidiary so designated will be deemed to be Restricted Payments or Permitted Investments, in the Company’s discretion, at the time of such designation and will reduce the amount available for Restricted Payments or Permitted Investments, as applicable. 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 Payments or Permitted Investments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary.
(b) Section 4.07(a) preceding provisions shall not prohibit:
(i1) the payment of any dividend or other distribution or redemption within 60 days after the date of declaration or call for redemption thereof, if at said the date of declaration or call for redemption such payment would have complied with the provisions of this Supplemental Indenture;
(ii2) the making redemption, repurchase, retirement, defeasance or other acquisition of any Restricted Payment subordinated Indebtedness of the Company in exchange for, or out of the net cash proceeds of of, the substantially concurrent sale (other than to a Subsidiary of the Company) of, Equity Interests of the Company (other than any Disqualified Interests) or from a contribution of capital to the Company; 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 Section 4.07(a)(C)(2Stock);
(iii3) the defeasance, redemption, repurchase, replacement, extension, renewal, refinancing or retirement repurchase or other acquisition of subordinated Indebtedness of the Company or Disqualified Interests in exchange for or any of its Restricted Subsidiaries with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness;
(iv4) the declaration, or payment of any dividend or other distribution distribution, which need not be pro rata, to the extent necessary to permit direct or indirect Beneficial Owners of shares of Capital Stock of the Company to pay federal, state or local income tax liabilities that would arise solely from income of the Company or any of its Restricted Subsidiaries, as the case may be, for the relevant taxable period being attributable to them;
(5) the payment of any dividend by a Restricted Subsidiary of the Company to the holders of its common Equity Interests on a pro rata basis;
(v6) the repurchase, redemption or other acquisition or retirement for value value, or the payment of any dividend or distribution to the extent necessary to permit the repurchase, redemption or other acquisition or retirement for value, of any Equity Interests of the Company or any Subsidiary a Parent of the Company held by any current member of the Company’s or former officer, director, employee, consultant such Parent’s management pursuant to any management equity subscription agreement or agent stock option agreement entered into in accordance with the policies of the Company or any of its Restricted Subsidiaries (or Heirs or other permitted transferees thereof) upon death, disability, retirement, severance or termination of employment or service or in connection with a stock option plan or agreement, shareholders agreement, or similar agreement, plan or arrangement, including amendments theretoParent; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may shall not exceed: exceed $50.0 million in any fiscal year of the Issuers;
(7) payment of fees in connection with any acquisition, merger or similar transaction in an amount that does not exceed an amount equal to 1.25% of the transaction value of such acquisition, merger or similar transaction;
(8) (A) $10.0 million in additional Restricted Payments directly or indirectly to any calendar yearParent (i) for the purpose of enabling any Parent to pay interest when due on Indebtedness under any Charter Parent Refinancing Indebtedness or (ii) so long as no Default has occurred and is continuing and the Company would have been permitted, with unused amounts being available to be used in any later calendar year; provided that at the time of such amount in any calendar year may be increased in an amount not to exceed Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the net cash proceeds from the sale of Equity Interests (other than Disqualified Interests) beginning of the Company applicable quarter period, to incur at least $1.00 of additional Indebtedness pursuant to the Leverage Ratio test set forth in the first paragraph of Section 4.10, consisting of dividends or distributions to the extent required to enable any officerParent to defease, directorredeem, employee repurchase, prepay, repay, discharge or agent otherwise acquire or retire for value Indebtedness under any Charter Parent Refinancing Indebtedness (including any expenses and fees incurred by any Parent in connection therewith); (B) so long as no Default has occurred and is continuing, Restricted Payments used to defease, redeem, repurchase, prepay, repay, discharge or otherwise acquire or retire for value Indebtedness under any Charter Parent Refinancing Indebtedness or consisting of purchases, redemptions or other acquisitions by the Company or its Restricted Subsidiaries of Indebtedness under any Subsidiary of the Company that occurs after the date of this Indenture, to the extent such net cash proceeds have not otherwise been applied to make Restricted Payments pursuant to Section 4.07(a)(C)(2); plus Charter Parent Refinancing Indebtedness (B) the cash proceeds of key man life insurance policies received including any expenses and fees incurred by the Company and its Restricted Subsidiaries in connection therewith) and the distribution, loan or investment to any Parent of Indebtedness so purchased, redeemed or acquired, or (C) Restricted Payments for the purpose of enabling any Parent to (i) pay interest when due on Indebtedness under any Charter Subsidiary Refinancing Indebtedness or (ii) to defease, redeem, repurchase, prepay, repay, discharge or otherwise acquire or retire for value Indebtedness under any Charter Subsidiary Refinancing Indebtedness (including any expenses and fees incurred by the Company and its Restricted Subsidiaries in connection therewith);
(9) Restricted Payments directly or indirectly to any Parent regardless of whether a Default exists (other than an Event of Default under paragraph (1), (2), (7) or (8) of Section 6.01), for the purpose of enabling such Person (A) to pay interest on and (B) so long as 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 date beginning of this Indenture the applicable quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Leverage Ratio test set forth in the first paragraph of Section 4.10 to defease, redeem, repurchase, prepay, repay, discharge or otherwise acquire or retire, in each case, Indebtedness of such Parent (x) which is not held by another Parent and (y) to the extent that the net cash proceeds of such Indebtedness are or were used for the repurchase(1) payment of interest or principal (or premium) on any Indebtedness of a Parent (including (A) by way of a tender, redemption or other acquisition or retirement for value owned by the individual (or such individual’s estate) that is the subject prepayment of such insuranceIndebtedness and (B) amounts set aside to prefund any such payment), (2) direct or indirect (including by way of a contribution of property and/or assets purchased with such net cash proceeds) Investment in the Company or any of its Restricted Subsidiaries or (3) payment of amounts that would be permitted to be paid by way of a Restricted Payment under clause (10) immediately below (including the expenses of any exchange transaction);
(vi10) the repurchase Restricted Payments directly or indirectly to any Parent of (A) attorneys’ fees, investment banking fees, accountants’ fees, underwriting discounts and commissions and other customary fees and expenses (including any commitment and other fees payable in connection with Credit Facilities) actually incurred in connection with any issuance, sale or incurrence by such Parent of Equity Interests deemed or Indebtedness, or any exchange of securities or tender for outstanding debt securities, or (B) the costs and expenses of any offer to occur upon the exercise of options, warrants or other convertible exchange privately placed securities to the extent such Equity Interests represent a portion in respect of the exercise price of those options, warrants foregoing for publicly registered securities or other convertible securities and cash payments in lieu of the issuance of fractional shares in connection with the exercise of options, warrants, or other convertible securitiesany similar concept having a comparable purpose;
(vii11) the redemption, repurchase, retirement or other acquisition of any Equity Interests of the Company or Indebtedness of the Issuers or any Equity Interests of any direct or indirect parent of the Company, in exchange for, or out of the proceeds of the substantially concurrent sale (other than to an Issuer or a Restricted Subsidiary) of, Equity Interests of the Company or any direct or indirect parent of the Company (in each case, other than any Disqualified Stock);
(12) the declaration and payment of regular quarterly dividends on to holders of any class or series of Disqualified Stock of the Company’s Equity Interests Issuers or any Restricted Subsidiary issued in accordance with past practice Section 4.10;
(13) so long as no Default has occurred and is continuing, other Restricted Payments in an aggregate amount outstanding taken together with all other Restricted Payments made pursuant to this clause (13) not to exceed $0.05 per share100.0 million outstanding at any one time;
(viii14) additional Restricted Payments not to exceed $150.0 million after August 27, 2012;
(ix) the repurchase pay all or a portion of the Company’s consideration payable for any Investment that would have been permitted to be made by the Issuers under this Indenture including, without limitation, the true up payments pursuant to the Bright House Acquisition Agreement; provided that the assets or Equity Interests acquired in an amount not such Investment (to exceed $50.0 million after August 27, 2012;
(x) distributions or payments the extent of Securitization Fees and purchases of Securitization Assets pursuant to a Securitization Repurchase Obligation in connection with a Qualified Securitization Financing;
(xi) any payments made in connection with the consummation of the transactions on substantially the terms described in the Offering Memorandum;
(xii) the payment of intercompany subordinated debt, the incurrence of which was permitted under Section 4.09(b)(vi);
(xiii) the purchase of fractional shares amounts distributed by the Company upon conversion of any securities of Issuers to make such Investment) are promptly contributed to the Company into Capital Interests capital of the Company;
(xiv15) the repurchaseso long as no Default or Event of Default has occurred and is continuing or would result therefrom, redemption or other acquisition or retirement for value of subordinated Indebtedness or Disqualified Interests pursuant to the provisions similar to those described under Section 4.14 and Section 4.10any Restricted Payments; provided that all Notes tendered by Holders of the Notes Leverage Ratio, after giving pro forma effect to such Restricted Payment, is less than or equal to 3.50 to 1.00;
(16) any distributions to any Parent to permit such Parent to pay (i) attorneys’ fees, investment banking fees, accountants’ fees, underwriting discounts and commissions and other customary fees and expenses (including any commitment and other fees payable in connection with credit facilities) actually incurred in connection with any issuance, sale or incurrence by such Parent of Equity Interests or Indebtedness, any exchange of securities or a tender for outstanding debt securities or any actual or proposed Investment, (ii) the related Change costs and expenses of Control Offer any offer to exchange privately placed securities in respect of the foregoing for publicly registered securities or Asset Sale Offerany similar concept having a comparable purpose or (iii) other administrative expenses (including legal, as applicableaccounting, have been repurchasedother professional fees and costs, redeemed or acquired for value printing and other such fees and expenses) incurred in fullthe ordinary course of business, in an aggregate amount in the case of this clause (iii) not to exceed $5.0 million in any fiscal year; and
(xv17) payment Restricted Payments in an aggregate amount not to exceed an amount equal to the sum of dividends on Disqualified Interests Total Leverage Excess Proceeds and Declined Excess Proceeds that has not been used to make any Investments pursuant to clause (21) of the Company or a Restricted Subsidiary, the issuance definition of which is permitted by this Indenture“Permitted Investments.
(c) ” 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 Subsidiary, as the case may be, any of its Restricted Subsidiaries 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 covenant shall be determined by an officer the Board of Directors of the Company, whose resolution with respect thereto shall be delivered to the Trustee. In 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 $100.0 million. Not later than the date of making any Restricted Payment other than in the form of cash having a fair market value in excess of $150.0 million, 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 Supplemental Indenture. For purposes of determining compliance with this Section 4.07, in the event that a Restricted Payment meets Payment, when made, met the criteria of more than one of the exceptions categories described in clauses (i1) through (xv17) above above, or is entitled to be made was permitted pursuant to the first paragraph of this covenantSection 4.07, the Company may, in its sole discretion, classify, and may later reclassify from time Issuers will be entitled to time, classify such Restricted Payment (or portion thereof) on the date of its payment or later reclassify such Restricted Payment (or portion thereof) in any portion thereof into or among any of such applicable provisionsmanner that complies with this Section 4.07.
Appears in 1 contract
Samples: Second Supplemental Indenture (Cco Holdings Capital Corp)
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, 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 (A) except dividends or distributions accrued or payable solely in Equity Interests (other than Disqualified InterestsStock) of the Company or (B) dividends or distributions to the Company or a Restricted Subsidiary of the Company);
(ii2) 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 the Company (held by Persons other than any such Equity Interests owned by the Company or any a Restricted Subsidiary of the Company)Subsidiary;
(iii3) make any payment on or with respect to, or purchase, repurchase, redeem, defease or otherwise acquire or retire for value value, prior to scheduled maturity, any Indebtedness of the Company or any Guarantor that is contractually subordinated to the Notes or to any Note Guarantee (other than excluding any intercompany Indebtedness permitted under clause (vi) between or among the Company and any of the definition of “Permitted Debt”) its Restricted Subsidiaries), except (a) for a payment of interest or principal at Stated Maturity or (b) the a purchase, repurchase repurchase, redemption, defeasance, satisfaction and discharge or other acquisition of any such Indebtedness or retirement for value in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case, case due within one year of the date of such purchasepayment or repurchase, repurchase redemption, defeasance, satisfaction and discharge or other acquisitionacquisition or retirement; or
(iv4) make any Restricted Investment (all such payments and other actions set forth in these clauses (i1) through (iv4) above being collectively referred to as “Restricted Payments”), unless, at the time of and after giving effect to such Restricted Payment:
(A1) no 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 Fixed Charge Coverage Ratio test set forth in Section 4.09(a)) hereof; and
(C3) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after August 27, 2012 since the date of this Indenture (excluding Restricted Payments permitted by clauses (i2) through (provided that at the time of declaring such dividend, such dividend was counted as a Restricted Payment) (ii), (iii), (iv), (v), (vi), (vii), (viii), (ix), (x), (xi), (xii), (xiii), (xiv) and (xv14) of paragraph (b) of this Section 4.07(b)4.07), is less than the sum, without duplicationduplication (the “Cumulative Credit”), of:
(1A) 50% of the Consolidated Net Income of the Company for the period (taken as one accounting period) from April 2November 1, 2012 2017, 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
(2B) 100% of the aggregate net proceeds, including cash proceeds and the fair market value Fair Market Value of any marketable securities or other property or Capital Interests, received by the Company since August 27, 2012 the 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 InterestsStock) of the Company or from the issue or sale of convertible or exchangeable Disqualified Interests Stock or convertible or exchangeable debt securities of the Company that have been converted into or exchanged for such Equity Interests other than Disqualified Stock (other than Equity Interests (or Disqualified Interests Stock or convertible debt securities) sold to a Subsidiary of the Company), together with ; plus
(C) to the aggregate cash and Cash Equivalents received extent that any Restricted Investment made by the Company or any of its Restricted Subsidiaries at in any Person after the time date of this Indenture is subsequently sold or otherwise liquidated or repaid (including, without limitation, by repurchase, repayment or redemption of such conversion Restricted Investment by such Person), the aggregate amount of cash and the Fair Market Value of any property or exchange plus assets received by the amount by which Indebtedness Company or a Restricted Subsidiary with respect to all such sales, liquidations or repayments (less the cost of disposition, if any); plus
(D) (i) if any Unrestricted Subsidiary of the Company and its is redesignated as a Restricted Subsidiaries is reduced upon Subsidiary, or merged or consolidated into the conversion Company or exchange subsequent a Restricted Subsidiary, the Fair Market Value of the Company’s Investment in such Unrestricted Subsidiary as of the date of such redesignation or (ii) if any Unrestricted Subsidiary of the Company pays any cash dividends or cash distributions to August 27, 2012 of any Indebtedness or Disqualified Interests which are convertible into or exchangeable for Qualified Capital Interests of the Company or any of its Restricted Subsidiaries, plus
(3) 100% of any such cash dividends or cash distributions made after the amount received, including the fair market value date of any property received after August 27, 2012 by means of (A) the sale or other disposition (other than to the Company or a Restricted Subsidiary) of Restricted Investments made by the Company or its Restricted Subsidiaries and repurchases and redemptions of such Restricted Investments from the Company or its Restricted Subsidiaries and repayments of loans or advances which constitute Restricted Investments of the Company or its Restricted Subsidiaries or (B) the sale (other than to the Company or a Restricted Subsidiary) of the Capital Interests of an Unrestricted Subsidiary or a distribution from an Unrestricted Subsidiary (other than in each case to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment) or a dividend from an Unrestricted Subsidiary, plus
(4) in the case of the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary or the merger or consolidation of an Unrestricted Subsidiary into the Company or a Restricted Subsidiary or the transfer of assets of an Unrestricted Subsidiary to the Company or a Restricted Subsidiary, the fair market value of the Investment in such Unrestricted Subsidiary (other than an Unrestricted Subsidiary to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment), plus
(5) $141.0 million. The Board of Directors 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 in the Subsidiary so designated will be deemed to be Restricted Payments or Permitted Investments, in the Company’s discretion, at the time of such designation and will reduce the amount available for Restricted Payments or Permitted Investments, as applicable. 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 Payments or Permitted Investments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiarythis Indenture.
(b) The provisions of Section 4.07(a) hereof shall not prohibit:, so long as no Default has occurred and is continuing or would be caused thereby (other than with respect to clause (4), which shall not be prohibited regardless of whether a Default has occurred and is continuing or would be caused thereby):
(i1) 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 call for distribution or the giving of a redemption thereofnotice, as the case may be, if at said the date of declaration or call for the giving of a redemption such notice, the dividend, distribution or redemption payment would have complied with the provisions of this Indenture;
(ii2) the making of any Restricted Payment in exchange for, or within 60 days out of the net cash proceeds of the substantially concurrent sale (other than to a Subsidiary of the Company) of, Equity Interests of the Company (other than any Disqualified InterestsStock) or within 60 days from a the contribution of common equity capital to the Company; provided that the amount of any such net cash proceeds that are utilized for any such redemption, Restricted Payment shall be excluded from clause (3)(B) of Section 4.07(a) hereof;
(3) the repurchase, retirementredemption, defeasance or other acquisition shall be excluded from Section 4.07(a)(C)(2);
(iii) the defeasance, redemption, repurchase, replacement, extension, renewal, refinancing or retirement for value of Indebtedness of the Company or other acquisition any Guarantor that is contractually subordinated or junior in right of subordinated Indebtedness payment to the Notes or Disqualified Interests in exchange for or to any Note Guarantee, including premium, if any, and accrued interest, within 60 days with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness;
(iv4) the declaration, or payment of any dividend (or, in the case of any partnership or other distribution limited liability company, any similar distribution) or the making of any loan or advance by a Restricted Subsidiary of the Company to the holders of its common Equity Interests on a pro rata basis;
(v5) 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 current or former officer, director, employee, employee or consultant or agent of the Company or any of its Restricted Subsidiaries (or, in each case, their permitted transferees, heirs or Heirs estates) pursuant to any equity subscription agreement, equity incentive plan, stock option agreement, shareholders’ agreement, employee benefit plan or arrangement or other permitted transferees thereof) upon death, disability, retirement, severance or termination of employment or service or in connection with a stock option plan or agreement, shareholders agreement, or similar agreement, plan or arrangement, including amendments thereto; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may not exceed: exceed (Aa) $5.0 million in any calendar year (with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to clause (b)) of $10.0 million in any calendar year), with unused amounts being available to be used in any later calendar year; provided that such amount in any calendar year may be increased in an amount not to exceed plus (b) the net aggregate cash proceeds from the sale of Equity Interests (other than Disqualified Interests) of the Company to any officer, director, employee or agent of the Company or any Subsidiary of the Company that occurs after the date of this Indenture, to the extent such net cash proceeds have not otherwise been applied to make Restricted Payments pursuant to Section 4.07(a)(C)(2); plus (B) the cash proceeds of key man life insurance policies received by the Company and its Restricted Subsidiaries after from any issuance or reissuance of Equity Interests to directors, officers, employees and consultants and the date proceeds of this Indenture any “key man” life insurance policies; provided, further, that are used for the cancellation of Indebtedness owing to the Company or its Restricted Subsidiaries from members of management in connection with such repurchase of Equity Interests shall not be deemed to be a Restricted Payment;
(6) the repurchase, redemption or other acquisition or retirement for value owned by the individual (or such individual’s estate) that is the subject of such insurance;
(vi) the repurchase of Equity Interests deemed to occur upon the exercise of stock options, warrants or other convertible securities similar rights to the extent such Equity Interests represent a portion of the exercise price of those stock options, warrants or other convertible securities and similar rights, or the withholding of a portion of the Equity Interests granted or awarded to pay for the taxes payable upon such grant or award;
(7) cash payments in lieu of the issuance of fractional shares in connection with the exercise of stock options, warrants, warrants or other convertible securitiessimilar rights;
(vii) 8) the declaration and payment of regular quarterly regularly scheduled or accrued dividends or distributions to holders of any class or series of Disqualified Stock of the Company or any class or series of preferred stock of any Restricted Subsidiary of the Company issued on or after the Company’s Equity Interests date of this Indenture in accordance with past practice and the Fixed Charge Coverage Ratio test described in Section 4.09 hereof;
(9) purchases of fractional Equity Interests of the Company, (x) for aggregate consideration not to exceed $0.05 per share2.5 million since the date of this Indenture or (y) arising out of a consolidation, merger or sale of all or substantially all of the properties or assets of the Company and its Restricted Subsidiaries, taken as a whole, that is permitted pursuant to Section 5.01 hereof;
(viii) additional Restricted Payments not to exceed $150.0 million after August 27, 2012;
(ix) the repurchase of the Company’s Equity Interests in an amount not to exceed $50.0 million after August 27, 2012;
(x) distributions or payments of Securitization Fees and purchases of Securitization Assets pursuant to a Securitization Repurchase Obligation in connection with a Qualified Securitization Financing;
(xi10) any payments made in connection with the consummation of the transactions on substantially the terms that are described in the Offering Memorandum, regardless of whether such payments are made on the date of this Indenture or thereafter;
(xii11) payments or distributions in an amount determined by judgment or settlement approved by a court of competent jurisdiction, solely in the nature of satisfaction of dissenting stockholder rights, pursuant to or in connection with a consolidation, merger or transfer of assets that complies with Section 5.01 hereof;
(12) upon the occurrence of a Change of Control and within 60 days after completion of the offer to purchase pursuant to the repurchase of Notes upon a Change of Control covenant in accordance with the terms of this Indenture (including the purchase of all Notes tendered), any purchase or redemption of Indebtedness of the Company or any Guarantor, that is contractually subordinated or junior in right of payment to the Notes or to any Note Guarantee, or Disqualified Stock of intercompany subordinated debtthe Company that is required to be repurchased or redeemed pursuant to the terms thereof as a result of a Change of Control, at a purchase price not greater than 101% of the incurrence of which was permitted under Section 4.09(b)(vioutstanding principal amount thereof (plus accrued and unpaid interest thereon);
(xiii13) other Restricted Payments in an aggregate amount not to exceed $50.0 million since the purchase date of fractional shares by the Company upon conversion of any securities of the Company into Capital Interests of the Company;
(xiv) the repurchase, redemption or other acquisition or retirement for value of subordinated Indebtedness or Disqualified Interests pursuant to the provisions similar to those described under Section 4.14 and Section 4.10; provided that all Notes tendered by Holders of the Notes in connection with the related Change of Control Offer or Asset Sale Offer, as applicable, have been repurchased, redeemed or acquired for value in fullthis Indenture; and
(xv14) any Restricted Payments (in addition to Restricted Payments under the above clauses (1) through (13)), so long as, after giving pro forma effect to the payment of dividends on Disqualified Interests of the Company or a any such Restricted SubsidiaryPayment, the issuance of which is permitted by this Indenture.
(c) Total Leverage Ratio shall be no greater than 3.00 to 1.00. 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 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 by an officer the Board of Directors of the Company. In the event that a Restricted Payment meets the criteria of more than one of the exceptions described in (i) through (xv) above or is entitled to Company whose resolution with respect thereto shall be made pursuant delivered to the first paragraph of this covenant, the Company may, in its sole discretion, classify, and may later reclassify from time to time, such Restricted Payment or any portion thereof into or among any of such applicable provisionsTrustee.
Appears in 1 contract
Samples: Indenture (American Woodmark Corp)
Restricted Payments. (ai) The A Triggering Event shall occur if the Company shall not, and shall not permit or any of its Restricted Subsidiaries to, directly or indirectly:
(iA) declare declares or pay pays any dividend or make makes any other payment or distribution on account of the Company’s '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 's or any of its Restricted Subsidiaries’ ' Equity Interests in their capacity as such (other than (A) dividends or distributions accrued or payable in Equity Interests (other than Disqualified InterestsStock) of the Company or (B) dividends or distributions to the 52 Company or a Restricted Subsidiary of the Company);
(iiB) purchasepurchases, redeem redeems or otherwise acquire acquires or retire retires 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 the Company (other than any such Equity Interests owned by the Company or any Restricted Subsidiary of the Company);
(iiiC) make makes any payment on or with respect to, or purchasepurchases, redeemredeems, defease defeases or otherwise acquire acquires or retire retires for value any Indebtedness of the Company that is contractually subordinated in right of payment to the Notes or any Note Guarantee (other than Indebtedness permitted under clause (vi) of the definition of “Permitted Debt”) Mortgage Bonds, except (ai) a payment of interest or principal at the Stated Maturity thereof, or (bii) the a purchase, repurchase redemption, acquisition or other acquisition retirement required to be made pursuant to the terms of any such Indebtedness (including pursuant to an asset sale or change in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case, due within one year of the date of such purchase, repurchase or other acquisitioncontrol provision); or
(ivD) make makes any Restricted Investment (all such payments and other actions set forth in these clauses (iA) through (ivD) 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 Fixed Charge Coverage Ratio test set forth in Article V, Section 4.09(a4(b)(i) ("Triggering Events -- Incurrence of Indebtedness and Issuance of Preferred Stock"); and
(C3) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after August 27, 2012 the original issue date of the Mortgage Bonds (excluding Restricted Payments permitted by clauses Article V, Sections 4(a)(ii)(B),
(ia) (provided that at the time of declaring such dividend, such dividend was counted as a Restricted Payment) (iiii)(C), (iii), (iv), (v), (vi), (vii), (viii), (ix), (x), (xi), (xii), (xiii), (xiv4(a)(ii)(D) and (xv) of Section 4.07(b4(a)(ii)(H)), is less than the sum, without duplication, of:
(1a) 50% of the Consolidated Net Income of the Company for the period (taken as one accounting period) from April 2, 2012 the beginning of the first fiscal quarter commencing after the original issue date of the Mortgage Bonds 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
(2b) 100% of the aggregate net proceeds, cash proceeds received by the Company (including the fair market value of any property Permitted Business or Capital Interests, received by assets used or useful in a Permitted Business to the Company extent acquired in consideration of Equity Interests (other than Disqualified Stock) of the Company) since August 27, 2012 the original issue date of the Mortgage Bonds as a contribution to its common equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified InterestsStock and other than sales to a Restricted Subsidiary of the Company) or from the issue or sale of convertible or exchangeable Disqualified Interests Stock or convertible or exchangeable debt securities of the Company that have been converted into or exchanged for such Equity Interests (other than Equity Interests (Disqualified Stock or Disqualified Interests or convertible debt securities) securities sold to a Restricted Subsidiary of the Company), together plus
(c) to the extent that any Restricted Investment that was made after the original issue date of the Mortgage Bonds 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 aggregate cash cost of disposition, if any) and Cash Equivalents received by (ii) the Company or any of its Restricted Subsidiaries at the time initial amount of such conversion or exchange plus the amount by which Indebtedness of the Company and its Restricted Subsidiaries is reduced upon the conversion or exchange subsequent to August 27, 2012 of any Indebtedness or Disqualified Interests which are convertible into or exchangeable for Qualified Capital Interests of the Company or any of its Restricted SubsidiariesInvestment, plus
(3d) 100% of the amount received, including the fair market value of any property received after August 27, 2012 by means of (A) the sale or other disposition (other than to the Company or a Restricted Subsidiary) of Restricted Investments made by the Company or its Restricted Subsidiaries and repurchases and redemptions of such Restricted Investments from the Company or its Restricted Subsidiaries and repayments of loans or advances which constitute Restricted Investments extent that any Unrestricted Subsidiary of the Company or its Restricted Subsidiaries or (B) the sale (other than to the Company or a Restricted Subsidiary) of the Capital Interests of an Unrestricted Subsidiary or a distribution from an Unrestricted Subsidiary (other than in each case to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment) or a dividend from an Unrestricted Subsidiary, plus
(4) in the case of the redesignation of an Unrestricted Subsidiary is redesignated as a Restricted Subsidiary or after the merger or consolidation original issue date of an Unrestricted Subsidiary into the Company or a Restricted Subsidiary or Mortgage Bonds, the transfer lesser of assets of an Unrestricted Subsidiary to the Company or a Restricted Subsidiary, (i) the fair market value of the Company's Investment in such Unrestricted Subsidiary as of the date of such redesignation and (other than an Unrestricted Subsidiary to ii) the extent book value (determined in accordance with GAAP) of the Company's Investment in such Unrestricted Subsidiary constituted a Permitted Investment), plus
(5) $141.0 million. The Board as of Directors 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 in the Subsidiary so designated will be deemed to be Restricted Payments or Permitted Investments, in the Company’s discretion, at the time date of such designation and will reduce the amount available for Restricted Payments or Permitted Investments, as applicable. 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 Payments or Permitted Investments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiaryredesignation.
(bii) Section 4.07(a) Notwithstanding the foregoing, the following shall not prohibitconstitute a Triggering Event:
(iA) the payment of any dividend or other distribution or redemption within 60 days after the date of declaration or call for redemption thereofof the dividend, if at said the date of declaration or call for redemption such the dividend payment would have complied with the provisions of this Supplemental Indenture;
(iiB) the making redemption, repurchase, retirement, defeasance or other acquisition of any Restricted Payment Indebtedness of the Company that is contractually subordinated in right of payment to the Mortgage Bonds or of any Equity Interests of the Company or any direct or indirect parent of 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, Equity Interests of the Company (other than any Disqualified Interests) or from a contribution of capital to the CompanyStock); 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 Article V, Section 4.07(a)(C)(2)4(a)(i)(3)(b) above;
(iiiC) the defeasance, redemption, repurchase, replacement, extension, renewal, refinancing or retirement repurchase or other acquisition of any Indebtedness of the Company that is contractually subordinated Indebtedness or Disqualified Interests in exchange for or right of payment to the Mortgage Bonds with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness;
(ivD) the declaration, or payment of any distribution or dividend or other distribution by a Restricted Subsidiary of the Company to the holders of its common Equity Interests on a pro rata basis;
(vE) 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 current or former officer, director, employee, consultant or agent member of Company the Company's (or any of its Restricted Subsidiaries (or Heirs or other permitted transferees thereofSubsidiaries') upon deathmanagement pursuant to any management equity subscription agreement, disability, retirement, severance or termination of employment or service or in connection with a stock option plan or agreement, shareholders agreement, agreement or similar agreement, plan or arrangement, including amendments thereto; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may not exceed: (A) exceed $10.0 1.5 million in any calendar year;
(F) payments to Illinova to enable Illinova to pay its reasonable fees and expenses (including but not limited to, with unused interest on Illinova's Indebtedness) incurred in the ordinary course of business, which fees and expenses shall not be greater than the sum of (a) amounts being available necessary to be used in pay interest that accrues on the principal amount of Illinova's 7.125% Senior Notes due 2004 Outstanding on the original issue date of the Mortgage Bonds, provided that at the time of payment no Triggering Event shall have occurred and Illinova shall have made all required payments on its note or notes payable to the Company, and (b) $1.0 million for any later calendar year; provided that (a) any such amount in payment complies with any calendar year may be increased in an amount not regulatory restrictions then applicable to exceed the net cash proceeds from the sale of Equity Interests (other than Disqualified Interests) of the Company to any officer, director, employee or agent of the Company or any Subsidiary of the Company that occurs after the date of this Indenture, to the extent such net cash proceeds have not otherwise been applied to make Restricted Payments pursuant to Section 4.07(a)(C)(2); plus (B) the cash proceeds of key man life insurance policies received by the Company and its Restricted Subsidiaries after (b) the Fixed Charge Coverage Ratio for the Company's most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date of this Indenture that are used for the repurchase, redemption or other acquisition or retirement for value owned by the individual (or on which any such individual’s estate) that payment is the subject of such insurancemade was at least 2.0 to 1;
(viG) the repurchase payments of Equity Interests deemed to occur upon the exercise of options, warrants or other convertible securities to the extent such Equity Interests represent a portion of the exercise price of those options, warrants or other convertible securities and cash payments in lieu of the issuance of fractional shares in connection with the exercise of options, warrants, or other convertible securities;
(vii) the declaration and payment of regular quarterly dividends on the Company’s Equity Interests in accordance with past practice and not to exceed $0.05 per share;
(viii) additional Restricted Payments not to exceed $150.0 million after August 27, 2012;
(ix) the repurchase shares of the Company’s Equity Interests 's preferred stock Outstanding on the original issue date of the Mortgage Bonds, in an amount not to exceed $50.0 2.5 million after August 27, 2012in any calendar year;
(xH) distributions or payments of Securitization Fees and purchases of Securitization Assets pursuant to a Securitization Repurchase Obligation in connection with a Qualified Securitization Financing;
(xi) any payments made in connection with the consummation of the transactions on substantially the terms described in the Offering Memorandum;
(xii) the payment of intercompany subordinated debt, the incurrence of which was permitted under Section 4.09(b)(vi);
(xiii) the purchase of fractional shares by the Company upon conversion of any securities of the Company into Capital Interests of the Company;
(xiv) the repurchase, redemption or other acquisition or retirement for value of subordinated Indebtedness or Disqualified Interests pursuant to the provisions similar to those described under Section 4.14 Services and Section 4.10; provided that all Notes tendered by Holders of the Notes in connection with the related Change of Control Offer or Asset Sale Offer, as applicable, have been repurchased, redeemed or acquired for value in fullFacilities Agreement; and
(xvI) payment of dividends on Disqualified Interests other Restricted Payments in an aggregate amount since the original issue date of the Company Mortgage Bonds not to exceed $5 million; provided that, with respect to clauses (B), (C), (E), (F), (G), (H) and (I) above, no Default or a Restricted Subsidiary, the issuance Event of which is permitted by this IndentureDefault shall have occurred and be continuing immediately after such transaction.
(ciii) 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 Triggering Event shall be determined by the Board of Directors whose resolution with respect thereto shall be delivered to the Trustee. The Board of Directors' determination must be based upon an officer opinion or appraisal issued by an accounting, appraisal or investment banking firm of national standing if the Companyfair market value exceeds $20 million. In Not later than the event that a date of making any Restricted Payment meets the criteria of more than one of the exceptions described in (iexcluding Restricted Payments permitted by clauses (E)-(H) through (xv) above or is entitled to be made pursuant to the first paragraph of this covenantabove), the Company may, in its sole discretion, classify, and may later reclassify from time shall deliver to time, 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 Article V, Section 4(a) ("Restricted Payments") were computed, together with a copy of any fairness opinion or any portion thereof into appraisal required under this Supplemental Indenture. The Trustee shall have no duty or among any responsibility to determine the accuracy or correctness of this calculation and shall be fully protected in relying on such applicable provisionsOfficer's Certificate. The Trustee shall make such fairness opinion available for inspection by Holders of Mortgage Bonds upon reasonably prior written request during regular business hours.
(iv) The provisions of this Article V, Section 4(a) ("Restricted Payments") are subject to the provisions of Article V, Section 5 ("Suspension of Triggering Events").
Appears in 1 contract
Restricted Payments. (a) The Company shall Holdings 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 Holdings' or any of its Restricted Subsidiaries’ ' Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company Holdings or any of its Restricted Subsidiaries) or to the direct or indirect holders of the Company’s Holdings' or any of its Restricted Subsidiaries’ ' Equity Interests in their capacity as such (other than (A) dividends or distributions accrued or payable in Equity Interests (other than Disqualified InterestsStock) of the Company or (B) Holdings and other than dividends or distributions payable to the Company Holdings or a Restricted Subsidiary of the CompanyHoldings);
(ii2) 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 the Company (other than any such Equity Interests owned by the Company or any Restricted Subsidiary of the Company)Holdings;
(iii3) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value value, any Indebtedness of Holdings, the Company or any Guarantor that is contractually subordinated to the Notes or to any Note Guarantee (other than excluding (x) any intercompany Indebtedness permitted under clause (vi) between or among Holdings and any of the definition of “Permitted Debt”) except (a) a payment of interest or principal at Stated Maturity its Restricted Subsidiaries or (by) the purchase, repurchase repurchase, or other acquisition of Indebtedness that is contractually subordinated to the notes or to any such Indebtedness Note Guarantee, as the case may be, purchased in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case, case due within one year of the date of such purchase, repurchase or other acquisition), except a payment of interest or principal at the Stated Maturity thereof; or
(iv4) make any Restricted Investment (all such payments and other actions set forth in these clauses (i1) through (iv4) 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 has occurred and be is continuing or would occur as a consequence thereofof such Restricted Payment;
(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 Fixed Charge Coverage Ratio test set forth in Section 4.09(a); and
(C) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company Holdings and its Restricted Subsidiaries after August 27, 2012 since the date of this Indenture (excluding Restricted Payments permitted by clauses (i) (provided that at the time of declaring such dividend, such dividend was counted as a Restricted Payment) (ii2), (iii3), (iv4), (v5) (only to the extent of one-half of the amounts paid pursuant to such clause), (vi6), (vii8), (9), (viii10), (ix11), (x12), (xi13), (xii15), (xiii16), (xiv17) and (xv18) of Section 4.07(b)) hereof), is less than the sum, without duplication, of:
(1i) 50% of the Consolidated Net Income of the Company Holdings for the period (taken as one accounting period) from April 2, 2012 the beginning of the first fiscal quarter commencing prior to the date of this Indenture to the end of the Company’s Holding'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
(2ii) 100% of the aggregate net proceeds, including cash and the fair market value Fair Market Value of any property or Capital Interestsother than cash, received by Holdings since the Company since August 27, 2012 date of this Indenture (x) as a contribution to its common equity capital or (y) from the issue or sale of Equity Interests of the Company Holdings or any direct or indirect parent company of Holdings (other than Disqualified InterestsStock, Designated Preferred Stock, Excluded Contributions or Cash Contributions) or from the issue or sale of convertible or exchangeable Disqualified Interests Stock or convertible or exchangeable debt securities of the Company that have been converted into or exchanged for such Equity Interests (other than Equity Interests (or Disqualified Interests Stock or convertible debt securities) sold to a Subsidiary of the CompanyHoldings), together with the aggregate cash and Cash Equivalents received by the Company or any of its Restricted Subsidiaries at the time of such conversion or exchange plus the amount by which Indebtedness of the Company and its Restricted Subsidiaries is reduced upon the conversion or exchange subsequent to August 27, 2012 of any Indebtedness or Disqualified Interests which are convertible into or exchangeable for Qualified Capital Interests of the Company or any of its Restricted Subsidiaries, ; plus
(3iii) to the extent that any Restricted Investment that was made after the date of this Indenture is sold for cash or otherwise liquidated or repaid for cash, 100% of the aggregate amount received in cash and the Fair Market Value of property other than cash received; plus
(iv) to the extent that any Unrestricted Subsidiary of Holdings designated as such after the date of this Indenture is redesignated as a Restricted Subsidiary after the date of this Indenture or has been merged into, consolidated or amalgamated with or into, or transfers or conveys its assets to, Holdings or a Restricted Subsidiary of Holdings, 100% of the Fair Market Value of the Holdings' Investment in such Subsidiary as of the date of such redesignation, combination or transfer (or of the assets transferred or conveyed, as applicable) after deducting any Indebtedness associated with the Unrestricted Subsidiary so designated or combined or any Indebtedness associated with the assets so transferred or conveyed); plus
(v) 100% of the amount received, including the fair market value of any property dividends or distributions received after August 27, 2012 by means of (A) the sale or other disposition (other than to the Company Holdings or a Restricted Subsidiary) Subsidiary of Restricted Investments made by Holdings after the Company or its Restricted Subsidiaries and repurchases and redemptions date of such Restricted Investments from the Company or its Restricted Subsidiaries and repayments of loans or advances which constitute Restricted Investments of the Company or its Restricted Subsidiaries or (B) the sale (other than to the Company or a Restricted Subsidiary) of the Capital Interests of an Unrestricted Subsidiary or a distribution this Indenture from an Unrestricted Subsidiary (other than in each case of Holdings, to the extent the Investment in that such Unrestricted Subsidiary constituted a Permitted Investment) dividends or a dividend from an Unrestricted Subsidiary, plus
(4) distributions were not otherwise included in the case Consolidated Net Income of the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary or the merger or consolidation of an Unrestricted Subsidiary into the Company or a Restricted Subsidiary or the transfer of assets of an Unrestricted Subsidiary to the Company or a Restricted Subsidiary, the fair market value of the Investment in Holdings for such Unrestricted Subsidiary (other than an Unrestricted Subsidiary to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment), plus
(5) $141.0 million. The Board of Directors 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 in the Subsidiary so designated will be deemed to be Restricted Payments or Permitted Investments, in the Company’s discretion, at the time of such designation and will reduce the amount available for Restricted Payments or Permitted Investments, as applicable. 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 Payments or Permitted Investments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiaryperiod.
(b) The provisions of Section 4.07(a) shall hereof will not prohibit:
(i1) the payment of any dividend or other distribution or the consummation of any redemption within 60 days after the date of declaration of the dividend or call for distribution or giving of the redemption thereofnotice, if as the case may be, if, at said the date of declaration or call for notice, the dividend, distribution or redemption such payment would have complied with the provisions of this Indenture;
(ii2) the making of any Restricted Payment in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Subsidiary of the CompanyHoldings) of, Equity Interests of the Company Holdings or any direct or indirect parent company of Holdings (other than any Disqualified InterestsStock) or from a the substantially concurrent contribution of common equity capital to the CompanyHoldings; provided that the amount of any such net cash proceeds that are utilized for any such redemption, Restricted Payment will be excluded from clause (C)(ii) of Section 4.07(a) hereof;
(3) the repurchase, retirementredemption, defeasance or other acquisition shall be excluded from Section 4.07(a)(C)(2);
(iii) the defeasance, redemption, repurchase, replacement, extension, renewal, refinancing or retirement for value of Indebtedness of Holdings or other acquisition of any Restricted Subsidiary that is contractually subordinated Indebtedness to the Notes or Disqualified Interests in exchange for or to any Note Guarantee with the net cash proceeds from an a substantially concurrent incurrence of Permitted Refinancing Indebtedness;
(iv4) the declaration, or payment of any dividend (or, in the case of any partnership or other distribution limited liability company, any similar distribution) by a Restricted Subsidiary of the Company Holdings to the holders of its common Equity Interests on a pro rata basis;
(v5) the repurchase, redemption or other acquisition or retirement (or dividends or distributions to any direct or indirect parent company of Holdings to finance any such 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 or any direct or indirect parent company of Holdings held by any current or former officer, director, employee, consultant or agent employee of Company Holdings or any of its Restricted Subsidiaries (or Heirs any direct or other permitted transferees thereof) upon deathindirect parent company of Holdings pursuant to any equity subscription agreement, disability, retirement, severance or termination of employment or service or in connection with a stock option plan or agreement, shareholders agreement, shareholders' or members' agreement or similar agreement, plan or arrangement, including amendments thereto; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may not exceed: (A) exceed $10.0 2.5 million in any calendar year, year (with unused amounts in any calendar year being available permitted to be used in any later carried over for the two succeeding calendar yearyears); provided further, that such the amount in any calendar year may be increased in by an amount not to exceed exceed:
(a) the net cash proceeds received by Holdings or any of its Restricted Subsidiaries from the sale of Equity Interests (other than Disqualified InterestsStock) of the Company to any officer, director, employee or agent of the Company Holdings or any Subsidiary direct or indirect parent company of Holdings (to the Company extent contributed to Holdings) to members of management, directors or consultants of Holdings and its Restricted Subsidiaries or any direct or indirect parent company of Holdings that occurs after the date of this Indenture, to Indenture (provided that the extent amount of such net cash proceeds have utilized for any such repurchase, retirement, other acquisi- tion, or dividend or distribution will not otherwise been applied to make increase the amount available for Restricted Payments pursuant to under clause (C) of Section 4.07(a)(C)(24.07(a)); plus plus
(Bb) the cash proceeds of key man life insurance policies received by Holdings or any direct or indirect parent company of Holdings (to the Company extent contributed to Holdings) and its Restricted Subsidiaries after the date of this Indenture Indenture; (provided that are used for Holdings may elect to apply all or any portion of the repurchase, redemption or other acquisition or retirement for value owned aggregate increase contemplated by the individual clauses (or such individual’s estatea) that is the subject of such insuranceand (b) above in any single calendar year);
(vi6) the repurchase of Equity Interests deemed to occur upon the exercise of options, warrants or other convertible securities stock options to the extent such Equity Interests represent a portion of the exercise price of those stock options, warrants or other convertible securities and cash payments in lieu of the issuance of fractional shares in connection with the exercise of options, warrants, or other convertible securities;
(vii7) the declaration and payment of regular quarterly regularly scheduled or accrued dividends or distributions to holders of any class or series of Disqualified Stock of Holdings or any Restricted Subsidiary of Holdings issued on or after the Company’s Equity Interests date of this Indenture in accordance with past practice and the Fixed Charge Coverage Ratio test described in Section 4.09 hereof;
(8) without duplication as to amounts distributable with respect to taxes under clause (9) below, in the event Holdings becomes a pass-through or disregarded entity for U.S. federal income tax purposes, Tax Distributions to members of Holdings in an amount, with respect to any period after the last day of the fiscal quarter preceding the issuance of the Notes in 2004, not to exceed $0.05 per sharethe Tax Amount for such period;
(viii9) additional Restricted without duplication as to amounts distributed under clause (8) above, Permitted Payments not to exceed $150.0 million after August 27, 2012Parent;
(ix10) the repurchase of the Company’s Equity Interests in an amount not to exceed $50.0 million after August 27, 2012;
(x) distributions or payments of Securitization Fees and purchases of Securitization Assets receivables pursuant to a Securitization Receivables Repurchase Obligation in connection with a Qualified Securitization Receivables Financing;
(xi11) the declaration and payment of dividends or distributions to holders of any class or series of Designated Preferred Stock (other than Disqualified Stock) issued after the date of this Indenture and the declaration and payment of dividends to any direct or indirect parent company of Holdings, the proceeds of which will be used to fund the payment of dividends or distributions to holders of any class or series of Designated Preferred Stock (other than Disqualified Stock) of any direct or indirect parent company of Holdings issued after the date of this Indenture; provided, however, that (A) for the most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date of issuance of such Designated Preferred Stock, after giving effect to such issuance (and the payment of dividends or distributions) on a pro forma basis, Holdings could incur an additional $1.00 of Indebtedness pursuant to the Fixed Charge Coverage Ratio, and (B) the aggregate amount of dividends declared and paid pursuant to this clause (11) does not exceed the net cash proceeds actually received by Holdings (including any such proceeds contributed to Holdings by any direct or indi- rect parent company of Holdings) from any such sale of Designated Preferred Stock (other than Disqualified Stock) issued after the date of this Indenture;
(12) any payments made in connection with the consummation of the transactions on substantially the terms described Transactions (as such term is defined in the Offering Memorandum);
(xii13) Investments that are made with Excluded Contributions;
(14) other Restricted Payments in an aggregate amount not to exceed $25.0 million since the date of this Indenture;
(15) the satisfaction of change of control obligations once Holdings has fulfilled its obligations under this Indenture with respect to a Change of Control;
(16) the repayment of intercompany debt that was permitted to be incurred under this Indenture;
(17) cash dividends or other distributions on Holdings' Capital Stock used to, or the making of loans to any direct or indirect parent of Holdings to, fund the payment of fees and expenses owed by Holdings or its Restricted Subsidiaries to Affiliates, to the extent permitted by Section 4.11 hereof;
(18) the payment of intercompany subordinated debt, dividends or distributions on Holdings' common equity (or the incurrence payment of which was permitted under Section 4.09(b)(vi);
(xiiidividends or distributions to a direct or indirect parent company of Holdings to fund the payment by such parent company of dividends or distributions on its common equity) of up to 5.0% per calendar year of the purchase of fractional shares net proceeds received by the Company upon conversion Holdings from any public Equity Offering or contributed to Holdings by a direct or indirect parent company of Holdings from any securities of the Company into Capital Interests of the Company;
(xiv) the repurchase, redemption or other acquisition or retirement for value of subordinated Indebtedness or Disqualified Interests pursuant to the provisions similar to those described under Section 4.14 and Section 4.10public Equity Offering; provided that all Notes tendered by Holders the amount of the Notes in connection with the related Change any such net cash proceeds that are utilized for any such Restricted Payment will be excluded from clause (C)(ii) of Control Offer or Asset Sale Offer, as applicable, have been repurchased, redeemed or acquired for value in fullSection 4.07(a) hereof; and
(xv19) payment the distribution, as a dividend or otherwise, of dividends on Disqualified Interests shares of the Company Capital Stock of, or Indebtedness owed to Holdings or a Restricted SubsidiarySubsidiary of Holdings by, Unrestricted Subsidiaries; provided, however, that at the issuance time of, and after giving effect to, any Restricted Payment permitted under clauses (11) or (18) of which is permitted by this IndentureSection 4.07(b), no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof.
(c) 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 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 by an officer of the Company. In the event that a Restricted Payment meets the criteria of more than one of the exceptions described in (i) through (xv) above or is entitled to be made pursuant to the first paragraph of this covenant, the Company may, in its sole discretion, classify, and may later reclassify from time to time, such Restricted Payment or any portion thereof into or among any of such applicable provisions.
Appears in 1 contract
Restricted Payments. (a) The Parent 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 Parent Company’s or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Parent Company or any of its Restricted Subsidiaries) or to the direct or indirect holders of the Parent Company’s or any of its Restricted Subsidiaries’ Equity Interests in their capacity as such (other than (A) dividends or distributions accrued or payable in Equity Interests (other than Disqualified InterestsStock) of the Parent Company or (B) dividends or distributions to the Parent Company or a Restricted Subsidiary of the CompanySubsidiary);
(iib) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Parent Company) any Equity Interests of the Parent Company or any direct or indirect parent of the Parent Company or any Restricted Subsidiary (other than any such Equity Interests owned by the Parent Company or any Restricted Subsidiary of the CompanySubsidiary);
(iiic) make any principal payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value value, any Specified Indebtedness that is subordinated to the Notes or any Note Guarantee (other than any Specified Indebtedness permitted under clause (vi) of owing to the definition of “Permitted Debt”) Parent Company or a Restricted Subsidiary), except (a) a payment of interest principal (or principal at Stated Maturity or (b) the purchase, repurchase redemption, defeasance or other acquisition of any such Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case, due retirement for value) within one year of the date of such purchase, repurchase or other acquisitionStated Maturity thereof; or
(ivd) make any Restricted Investment (all such payments and other actions set forth in clauses (ia) through (ivd) 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 Parent 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 most recently ended four-quarter periodperiod for which internal financial statements are available, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.09(a4.8(a); and
(Ciii) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Parent Company and its Restricted Subsidiaries after August 27, 2012 the Issue Date (excluding Restricted Payments permitted by clauses (i) (provided that at the time of declaring such dividend, such dividend was counted as a Restricted Payment) (ii), (iii), (iv), (v), (vi), (vii), (viii), (ix), (x), (xi), (xii), (xiii), (xiv) and (xvx) of Section 4.07(b)the next succeeding paragraph), is less than the sum, without duplication, of:
(1A) 50% of the Consolidated Net Income of the Company for the period (taken as one accounting period) from April 2, 2012 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 in each case such Consolidated Net Income for such period is a deficit, less minus 100% of such deficit)) of the Parent Company since the first day of the fiscal quarter following the fiscal quarter in which the Issue Date occurs, plus
(2B) the aggregate net cash proceeds received by the Parent Company after the Issue Date from the sale of Equity Interests or any Indebtedness that is convertible into Capital Stock (other than Disqualified Stock) of the Parent Company or any direct or indirect parent of the Parent Company and has been so converted, plus
(C) the aggregate cash and the fair market value, as determined in good faith by the Board of Directors of the Parent Company, of property and marketable securities received by the Parent Company as capital contributions on and after the Issue Date, plus
(D) 100% of the aggregate net proceeds, including amount of cash and the fair market value value, as determined in good faith by the Board of any Directors of the Parent Company, of property or Capital Interestsand marketable securities, in each case, received by on and after the Company since August 27, 2012 as a contribution to its equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified Interests) or from the issue or sale of Disqualified Interests or debt securities of the Company that have been converted into such Equity Interests (other than Equity Interests (or Disqualified Interests or convertible debt securities) sold to a Subsidiary of the Company), together with the aggregate cash and Cash Equivalents received by the Company or any of its Restricted Subsidiaries at the time of such conversion or exchange plus the amount by which Indebtedness of the Company and its Restricted Subsidiaries is reduced upon the conversion or exchange subsequent to August 27, 2012 of any Indebtedness or Disqualified Interests which are convertible into or exchangeable for Qualified Capital Interests of the Company or any of its Restricted Subsidiaries, plus
(3) 100% of the amount received, including the fair market value of any property received after August 27, 2012 Issue Date by means of (A) the sale or other disposition (other than to of the Parent Company or a Restricted Subsidiary) of Restricted Investments made by the Parent Company or its Restricted Subsidiaries and repurchases and redemptions of such Restricted Investments from the Parent Company or its Restricted Subsidiaries and repayments of loans or loan advances which constitute Restricted Investments of by the Parent Company or its Restricted Subsidiaries or (B) the sale (other than to the Parent Company or a Restricted Subsidiary) of the Capital Interests Stock of an Unrestricted Subsidiary or a distribution from an Unrestricted Subsidiary (other than than, in each case case, to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment) or a dividend from an Unrestricted Subsidiary, plus
(4E) in the case lesser of the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary or the merger or consolidation of an Unrestricted Subsidiary into the Company or a Restricted Subsidiary or the transfer of assets of an Unrestricted Subsidiary to the Company or a Restricted Subsidiary, (x) the fair market value of the Investment in such Unrestricted Subsidiary (other than an Unrestricted Subsidiary to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment), plus
(5) $141.0 million. The Board of Directors 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 Parent Company’s and its Restricted Subsidiaries Subsidiaries’ Investments in the any Unrestricted Subsidiary so designated will be deemed to be that is redesignated as a Restricted Payments or Permitted Investments, in the Company’s discretion, Subsidiary at the time of such designation redesignation and will reduce (y) the amount available for Restricted Payments or Permitted Investments, as applicable. 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 that were treated as Restricted Investments, plus
(F) $50 million. So long as no Default or Event of such designation. Such designation will only be permitted if such Restricted Payments Default has occurred and is continuing or Permitted Investments would be permitted at such time and if such Restricted Subsidiary otherwise meets caused thereby, the definition of an Unrestricted Subsidiary.
(b) Section 4.07(a) shall preceding provisions will 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 call for the giving of the redemption thereofnotice, as the case may be, if at said the date of declaration or call for notice, such dividend or redemption such payment would have complied with the provisions of this Indenturethe Note Purchase Documents (provided that the date of such declaration or notice shall be treated as the date on which such Restricted Payment shall have been made);
(ii) the making repurchase, redemption, defeasance, retirement or other acquisition of any Specified Indebtedness or of any Equity Interests of the Parent Company or any Restricted Payment Subsidiary in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Subsidiary of the Parent Company) of, Equity Interests of the Company (other than Disqualified Stock) of the Parent Company or Equity Interests of any Disqualified Interests) direct or from a contribution indirect parent company of capital the Parent Company (to the Company; provided that the amount of any extent such net cash proceeds that are utilized for any such redemption, repurchase, retirement, defeasance or other acquisition shall be excluded from Section 4.07(a)(C)(2contributed to the Parent Company);
(iii) the defeasance, redemption, repurchase, replacementdefeasance, extension, renewal, refinancing or retirement or other acquisition of subordinated Specified Indebtedness or Disqualified Interests in exchange for for, or with the net cash proceeds from an incurrence of of, Permitted Refinancing Indebtedness;
(iv) the declaration, or payment of any dividend (or, in the case of any partnership or other distribution limited liability company, any similar distribution) by a Restricted Subsidiary of the Company to the holders of any class 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 Parent Company or any Restricted Subsidiary of the Company held by any current or former officer, director, employee, consultant or agent member of Company the Parent Company’s (or any of its Restricted Subsidiaries (or Heirs or other permitted transferees thereofSubsidiaries’) upon deathmanagement pursuant to any management equity subscription agreement, disability, retirement, severance or termination of employment or service or in connection with a stock option plan or agreement, shareholders agreement, agreement or similar agreement, plan or arrangement, including amendments thereto; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may shall not exceed: exceed $10 million in any calendar year (A) with unused amounts in any calendar year being carried over to the next succeeding year, not to exceed an aggregate of $10.0 20 million in any calendar year, with unused amounts being available to be used in any later calendar year; provided that such amount in any calendar year may be increased in an amount not to exceed the net cash proceeds from the sale of Equity Interests (other than Disqualified Interests) of the Company to any officer, director, employee or agent of the Company or any Subsidiary of the Company that occurs after the date of this Indenture, to the extent such net cash proceeds have not otherwise been applied to make Restricted Payments pursuant to Section 4.07(a)(C)(2); plus (B) the cash proceeds of key man life insurance policies received by the Company and its Restricted Subsidiaries after the date of this Indenture that are used for the repurchase, redemption or other acquisition or retirement for value owned by the individual (or such individual’s estate) that is the subject of such insurance;
(vi) the repurchase of Equity Interests deemed to occur (x) upon the exercise of stock options, warrants or other securities convertible securities or exchangeable into Equity Interests to the extent such Equity Interests represent a portion of the exercise price of those stock options, warrants or other securities convertible securities and cash payments or exchangeable into Equity Interests or are surrendered to the Parent Company or any Restricted Subsidiary in lieu satisfaction of the issuance obligation of fractional shares in connection with the exercise of options, warrants, holder thereof to pay withholding or other convertible securitiestaxes or (y) upon the vesting or settlement of Equity Interests to the extent such Equity Interests are surrendered to the Parent Company or any Restricted Subsidiary in satisfaction of the obligation of the holder thereof to pay withholding or other taxes;
(vii) in the declaration event of a Change of Control, the payment, purchase, redemption, defeasance or other acquisition or retirement of any Specified Indebtedness, in each case, at a purchase price not greater than 101% (unless such excess amount is an otherwise permitted Restricted Payment) of the principal amount of such Specified Indebtedness, plus any accrued and payment unpaid interest thereon to the date of regular quarterly dividends on purchase; provided, however, that prior to such payment, purchase, redemption, defeasance or other acquisition or retirement, the Company’s Equity Interests in accordance with past practice Company or such Guarantor (or a third-party to the extent permitted by the Note Purchase Documents) shall have made a Change of Control Offer as a result of such Change of Control and shall have repurchased all Notes validly tendered and not to exceed $0.05 per sharewithdrawn in connection with such Change of Control Offer;
(viii) additional in the event the Company has made an offer to purchase the Senior Priority Notes pursuant to (x) clause (c) of the second paragraph of Section 4.6 with any Net Proceeds or (y) Section 4.16(c) with any Net Loss Proceeds, the payment, purchase, redemption, defeasance or other acquisition or retirement of any Specified Indebtedness, in each case, with any remaining amount of such Net Proceeds or Net Loss Proceeds at a purchase price not greater than 100% (unless such excess amount is an otherwise permitted Restricted Payments not Payment) of the principal amount of such Specified Indebtedness, plus any accrued and unpaid interest thereon; provided, however, that prior to exceed $150.0 million after August 27such payment, 2012purchase, redemption, defeasance or other acquisition or retirement, the Company shall have purchased all Senior Priority Notes required to be purchased by it with such Net Proceeds or Net Loss Proceeds pursuant to such provisions;
(ix) the repurchase making of any Restricted Investment, directly or indirectly, out of the Company’s net cash proceeds of substantially concurrent sales (other than to a Subsidiary) of Equity Interests in an amount not of the Parent Company or any direct or indirect parent of the Parent Company (to exceed $50.0 million after August 27, 2012the extent such net cash proceeds are contributed to the Parent Company);
(x) distributions the repurchase, redemption, retirement or payments other acquisition of Securitization Fees and purchases (i) minority Equity Interests of Securitization Assets any Person that is a Restricted Subsidiary that were issued to the former owners of such Person (or not acquired from the former owners of such Person originally), or to the former owners of any division or line of business acquired by such Restricted Subsidiary, in an acquisition transaction pursuant to which such Person became a Securitization Repurchase Obligation Restricted Subsidiary or such Restricted Subsidiary acquired such division or line of business, (ii) any Indebtedness issued to the former owners of a Person (or to the former owners of a division or line of business) in connection with an acquisition transaction pursuant to which such Person became a Qualified Securitization Financing;Restricted Subsidiary (or such division or line of business was acquired by the Parent Company or a Restricted Subsidiary) and/or (iii) any Equity Interests of the Parent Company issued to the former owners of a Person (or to the former owners of a division or line of business) in an acquisition transaction pursuant to which such Person became a Restricted Subsidiary (or such division or line of business was acquired by the Parent Company or a Restricted Subsidiary), in the case of this subclause (iii), for consideration not to exceed the fair market value of such Equity Interests on the date of consummation of such acquisition; and
(xi) any payments made in connection with the consummation event the Company makes an offer to purchase the Notes pursuant to (x) clause (b) of the transactions on substantially the terms described in the Offering Memorandum;
second paragraph of Section 4.6 with any Net Proceeds or (xiiy) the payment of intercompany subordinated debtSection 4.16(b) with any Net Loss Proceeds, the incurrence of which was permitted under Section 4.09(b)(vi);
(xiii) the purchase of fractional shares by the Company upon conversion of any securities of the Company into Capital Interests of the Company;
(xiv) the repurchasepayment, redemption purchase, redemption, defeasance or other acquisition or retirement for value of subordinated Indebtedness any Specified Indebtedness, in each case, with any remaining amount of such Net Proceeds or Disqualified Interests pursuant to Net Loss Proceeds at a purchase price not greater than the provisions similar to those described under Section 4.14 and Section 4.10; provided that all Notes tendered by Holders percentage purchase price offered in respect of the Notes in connection with the related Change of Control Offer or Asset Sale Offer, as applicable, have been repurchased, redeemed or acquired for value in full; and
(xvunless such excess amount is an otherwise permitted Restricted Payment) payment of dividends on Disqualified Interests of the Company principal amount of such Specified Indebtedness, plus any accrued and unpaid interest thereon; provided, however, that prior to such payment, purchase, redemption, defeasance or a Restricted Subsidiaryother acquisition or retirement, the issuance of which is permitted Company shall have purchased all Notes required to be purchased by this Indentureit with such Net Proceeds or Net Loss Proceeds pursuant to such provisions.
(ce) 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) 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 Restricted Payment assets or securities that are required to be valued by this covenant and that have a fair market value in excess of $15 million shall be determined in good faith by an officer the Board of Directors whose resolution with respect thereto shall be delivered to the CompanyTrustee (for further distribution to the Noteholders). In the event that For purposes of determining compliance with this Section 4.7, if a Restricted Payment meets the criteria of more than one of the exceptions described in clauses (i) through (xvx) above above, or is entitled to be made pursuant to the first paragraph of this covenant, the Company may, in its sole discretion, classify, and may later reclassify from time to time, such classify the Restricted Payment or in any portion thereof into or among any of such applicable provisionsmanner that complies with this Section 4.7.
Appears in 1 contract
Samples: Indenture and Note Purchase Agreement (Cenveo, Inc)
Restricted Payments. (a) 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 its 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 's or any of its Restricted Subsidiaries’ ' Equity Interests in their capacity as such (other than (A) dividends or distributions accrued or payable (x) solely in Equity Interests (other than Disqualified InterestsStock) of the Company or (By) dividends or distributions in the case of the Company and its Restricted Subsidiaries, to the Company or a Restricted Subsidiary of the Companythereof);
(iib) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the CompanyCompany or any of its Restricted Subsidiaries) any Equity Interests of the Company or any direct or indirect parent Parent of the Company or any Restricted Subsidiary of the Company (other than than, in the case of the Company and its Restricted Subsidiaries, any such Equity Interests owned by the Company or any of its Restricted Subsidiary of the CompanySubsidiaries);; or
(iiic) 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 (other than intercompany Indebtedness among the Company and its Restricted Subsidiaries that is permitted to be incurred under this Supplemental Indenture) that is subordinated to the Notes or any Note Guarantee (other than Indebtedness permitted under clause (vi) of the definition of “Permitted Debt”) Notes, except (a) a payment of interest or principal at the Stated Maturity or (b) the purchase, repurchase or other acquisition of any such Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case, due within one year of the date of such purchase, repurchase or other acquisition; or
(iv) make any Restricted Investment thereof (all such payments and other actions set forth in clauses (ia) through (ivc) 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 under this Indenture shall have occurred and be continuing or would occur as a consequence thereof;
(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 Fixed Charge Coverage Leverage Ratio test set forth in the first paragraph of Section 4.09(a)4.10; and
(C3) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries from and after August 27April 1, 2012 2010 (excluding Restricted Payments permitted by clauses (i2) through (provided that 16) of the next succeeding paragraph and made on or after April 1, 2010), shall not exceed, at the time date of declaring such dividenddetermination, such dividend was counted as a Restricted Payment) (ii), (iii), (iv), (v), (vi), (vii), (viii), (ix), (x), (xi), (xii), (xiii), (xiv) and (xv) of Section 4.07(b)), is less than the sum, without duplication, sum of:
(1a) 50an amount equal to 100% of the Consolidated Net Income EBITDA of the Company for the period (taken as one accounting period) from beginning on the first day of the fiscal quarter commencing April 21, 2012 2010 to the end of the Company’s most recently ended full fiscal quarter for which internal financial statements are available at available, taken as a single accounting period, less the time product of such Restricted Payment (or, if such 1.3 times the Consolidated Net Income Interest Expense of the Company for such period is a deficitperiod, less plus
(b) an amount equal to 100% of Capital Stock Sale Proceeds (reduced for purpose of this clause (b) by (A) any amount of such deficitCapital Stock Sale Proceeds (i) used in connection with an Investment made on or after the Issue Date pursuant to clause (5) of the definition of “Permitted Investments,” (ii) applied to make a Restricted Payment pursuant to clause (2) or sub-clause (y)(2) of clause (9) or clause (14) below, or (iii) relied upon for purposes of incurring Contribution Indebtedness and (B) the amount of Restricted Payments made pursuant to sub-clause (A)(i), (B) or (C) of clause (8) and sub-clause (y)(1) of clause (9) below, in each case, by an amount not to exceed the amount of Capital Stock Sale Proceeds from any Charter Subsidiary Refinancing Indebtedness or Charter Parent Refinancing Indebtedness), plus
(2) 100% of the aggregate net proceeds, including the fair market value of any property or Capital Interests, received by the Company since August 27, 2012 as a contribution to its equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified Interests) or from the issue or sale of Disqualified Interests or debt securities of the Company that have been converted into such Equity Interests (other than Equity Interests (or Disqualified Interests or convertible debt securities) sold to a Subsidiary of the Company), together with the aggregate cash and Cash Equivalents received by the Company or any of its Restricted Subsidiaries at the time of such conversion or exchange plus the amount by which Indebtedness of the Company and its Restricted Subsidiaries is reduced upon the conversion or exchange subsequent to August 27, 2012 of any Indebtedness or Disqualified Interests which are convertible into or exchangeable for Qualified Capital Interests of the Company or any of its Restricted Subsidiaries, plus
(3) 100% of the amount received, including the fair market value of any property received after August 27, 2012 by means of (A) the sale or other disposition (other than to the Company or a Restricted Subsidiary) of Restricted Investments made by the Company or its Restricted Subsidiaries and repurchases and redemptions of such Restricted Investments from the Company or its Restricted Subsidiaries and repayments of loans or advances which constitute Restricted Investments of the Company or its Restricted Subsidiaries or (B) the sale (other than to the Company or a Restricted Subsidiary) of the Capital Interests of an Unrestricted Subsidiary or a distribution from an Unrestricted Subsidiary (other than in each case to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment) or a dividend from an Unrestricted Subsidiary, plus
(4) in the case of the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary or the merger or consolidation of an Unrestricted Subsidiary into the Company or a Restricted Subsidiary or the transfer of assets of an Unrestricted Subsidiary to the Company or a Restricted Subsidiary, the fair market value of the Investment in such Unrestricted Subsidiary (other than an Unrestricted Subsidiary to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment), plus
(5c) $141.0 million2.0 billion. The Board of Directors 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 in the Subsidiary so designated will be deemed to be Restricted Payments or Permitted Investments, in the Company’s discretion, at the time of such designation and will reduce the amount available for Restricted Payments or Permitted Investments, as applicable. 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 Payments or Permitted Investments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary.
(b) Section 4.07(a) preceding provisions shall not prohibit:
(i1) the payment of any dividend or other distribution or redemption within 60 days after the date of declaration or call for redemption thereof, if at said the date of declaration or call for redemption such payment would have complied with the provisions of this Supplemental Indenture;
(ii2) the making redemption, repurchase, retirement, defeasance or other acquisition of any Restricted Payment subordinated Indebtedness of the Company in exchange for, or out of the net cash proceeds of of, the substantially concurrent sale (other than to a Subsidiary of the Company) of, Equity Interests of the Company (other than any Disqualified Interests) or from a contribution of capital to the Company; 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 Section 4.07(a)(C)(2Stock);
(iii3) the defeasance, redemption, repurchase, replacement, extension, renewal, refinancing or retirement repurchase or other acquisition of subordinated Indebtedness of the Company or Disqualified Interests in exchange for or any of its Restricted Subsidiaries with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness;
(iv4) the declaration, or payment of any dividend or other distribution distribution, which need not be pro rata, to the extent necessary to permit direct or indirect beneficial owners of shares of Capital Stock of the Company to pay federal, state or local income tax liabilities that would arise solely from income of the Company or any of its Restricted Subsidiaries, as the case may be, for the relevant taxable period being attributable to them;
(5) the payment of any dividend by a Restricted Subsidiary of the Company to the holders of its common Equity Interests on a pro rata basis;
(v6) the repurchase, redemption or other acquisition or retirement for value value, or the payment of any dividend or distribution to the extent necessary to permit the repurchase, redemption or other acquisition or retirement for value, of any Equity Interests of the Company or any Subsidiary a Parent of the Company held by any current member of the Company’s or former officer, director, employee, consultant such Parent’s management pursuant to any management equity subscription agreement or agent stock option agreement entered into in accordance with the policies of the Company or any of its Restricted Subsidiaries (or Heirs or other permitted transferees thereof) upon death, disability, retirement, severance or termination of employment or service or in connection with a stock option plan or agreement, shareholders agreement, or similar agreement, plan or arrangement, including amendments theretoParent; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may shall not exceed: exceed $50.0 million in any fiscal year of the Issuers;
(7) payment of fees in connection with any acquisition, merger or similar transaction in an amount that does not exceed an amount equal to 1.25% of the transaction value of such acquisition, merger or similar transaction;
(8) (A) $10.0 million in additional Restricted Payments directly or indirectly to any calendar yearParent (i) for the purpose of enabling any Parent to pay interest when due on Indebtedness under any Charter Parent Refinancing Indebtedness or (ii) so long as no Default has occurred and is continuing and the Company would have been permitted, with unused amounts being available to be used in any later calendar year; provided that at the time of such amount in any calendar year may be increased in an amount not to exceed Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the net cash proceeds from the sale of Equity Interests (other than Disqualified Interests) beginning of the Company applicable quarter period, to incur at least $1.00 of additional Indebtedness pursuant to the Leverage Ratio test set forth in the first paragraph of Section 4.10, consisting of dividends or distributions to the extent required to enable any officerParent to defease, directorredeem, employee repurchase, prepay, repay, discharge or agent otherwise acquire or retire for value Indebtedness under any Charter Parent Refinancing Indebtedness (including any expenses and fees incurred by any Parent in connection therewith); (B) so long as no Default has occurred and is continuing, Restricted Payments used to defease, redeem, repurchase, prepay, repay, discharge or otherwise acquire or retire for value Indebtedness under any Charter Parent Refinancing Indebtedness or consisting of purchases, redemptions or other acquisitions by the Company or its Restricted Subsidiaries of Indebtedness under any Subsidiary of the Company that occurs after the date of this Indenture, to the extent such net cash proceeds have not otherwise been applied to make Restricted Payments pursuant to Section 4.07(a)(C)(2); plus Charter Parent Refinancing Indebtedness (B) the cash proceeds of key man life insurance policies received including any expenses and fees incurred by the Company and its Restricted Subsidiaries in connection therewith) and the distribution, loan or investment to any Parent of Indebtedness so purchased, redeemed or acquired, or (C) Restricted Payments for the purpose of enabling any Parent to (i) pay interest when due on Indebtedness under any Charter Subsidiary Refinancing Indebtedness or (ii) to defease, redeem, repurchase, prepay, repay, discharge or otherwise acquire or retire for value Indebtedness under any Charter Subsidiary Refinancing Indebtedness (including any expenses and fees incurred by the Company and its Restricted Subsidiaries in connection therewith);
(9) Restricted Payments directly or indirectly to any Parent regardless of whether a Default exists (other than an Event of Default under paragraph (1), (2), (7) or (8) of Section 6.01), for the purpose of enabling such Person (A) to pay interest on and (B) so long as 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 date beginning of this Indenture the applicable quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Leverage Ratio test set forth in the first paragraph of Section 4.10 to defease, redeem, repurchase, prepay, repay, discharge or otherwise acquire or retire, in each case, Indebtedness of such Parent (x) which is not held by another Parent and (y) to the extent that the net cash proceeds of such Indebtedness are or were used for the repurchase(1) payment of interest or principal (or premium) on any Indebtedness of a Parent (including (A) by way of a tender, redemption or other acquisition or retirement for value owned by the individual (or such individual’s estate) that is the subject prepayment of such insuranceIndebtedness and (B) amounts set aside to prefund any such payment), (2) direct or indirect (including by way of a contribution of property and/or assets purchased with such net cash proceeds) Investment in the Company or any of its Restricted Subsidiaries or (3) payment of amounts that would be permitted to be paid by way of a Restricted Payment under clause (10) immediately below (including the expenses of any exchange transaction);
(vi10) the repurchase Restricted Payments directly or indirectly to any Parent of (A) attorneys’ fees, investment banking fees, accountants’ fees, underwriting discounts and commissions and other customary fees and expenses (including any commitment and other fees payable in connection with Credit Facilities) actually incurred in connection with any issuance, sale or incurrence by such Parent of Equity Interests deemed or Indebtedness, or any exchange of securities or tender for outstanding debt securities, or (B) the costs and expenses of any offer to occur upon the exercise of options, warrants or other convertible exchange privately placed securities to the extent such Equity Interests represent a portion in respect of the exercise price of those options, warrants foregoing for publicly registered securities or other convertible securities and cash payments in lieu of the issuance of fractional shares in connection with the exercise of options, warrants, or other convertible securitiesany similar concept having a comparable purpose;
(vii11) the redemption, repurchase, retirement or other acquisition of any Equity Interests of the Company or Indebtedness of the Issuers or any Equity Interests of any direct or indirect parent of the Company, in exchange for, or out of the proceeds of the substantially concurrent sale (other than to an Issuer or a Restricted Subsidiary) of, Equity Interests of the Company or any direct or indirect parent of the Company (in each case, other than any Disqualified Stock);
(12) the declaration and payment of regular quarterly dividends on to holders of any class or series of Disqualified Stock of the Company’s Equity Interests Issuers or any Restricted Subsidiary issued in accordance with past practice Section 4.10;
(13) so long as no Default has occurred and is continuing, other Restricted Payments in an aggregate amount outstanding taken together with all other Restricted Payments made pursuant to this clause (13) not to exceed $0.05 per share100.0 million outstanding at any one time;
(viii14) additional Restricted Payments not to exceed $150.0 million after August 27, 2012;
(ix) the repurchase pay all or a portion of the Company’s consideration payable for any Investment that would have been permitted to be made by the Issuers under this Indenture including, without limitation the true up payments pursuant to the Bright House Acquisition Agreement; provided that the assets or Equity Interests acquired in an amount not such Investment (to exceed $50.0 million after August 27, 2012;
(x) distributions or payments the extent of Securitization Fees and purchases of Securitization Assets pursuant to a Securitization Repurchase Obligation in connection with a Qualified Securitization Financing;
(xi) any payments made in connection with the consummation of the transactions on substantially the terms described in the Offering Memorandum;
(xii) the payment of intercompany subordinated debt, the incurrence of which was permitted under Section 4.09(b)(vi);
(xiii) the purchase of fractional shares amounts distributed by the Company upon conversion of any securities of Issuers to make such Investment) are promptly contributed to the Company into Capital Interests capital of the Company;
(xiv15) the repurchaseso long as no Default or Event of Default has occurred and is continuing or would result therefrom, redemption or other acquisition or retirement for value of subordinated Indebtedness or Disqualified Interests pursuant to the provisions similar to those described under Section 4.14 and Section 4.10any Restricted Payments; provided that all Notes tendered by Holders of the Notes in connection with the related Change of Control Offer Leverage Ratio, after giving pro forma effect to such Restricted Payment, is less than or Asset Sale Offer, as applicable, have been repurchased, redeemed or acquired for value in fullequal to 3.50:1.00; and
(xv16) payment any distributions to any Parent to permit such Parent to pay (i) attorneys’ fees, investment banking fees, accountants’ fees, underwriting discounts and commissions and other customary fees and expenses (including any commitment and other fees payable in connection with credit facilities) actually incurred in connection with any issuance, sale or incurrence by such Parent of dividends on Disqualified Equity Interests or Indebtedness, any exchange -55- of securities or a tender for outstanding debt securities or any actual or proposed Investment, (ii) the costs and expenses of any offer to exchange privately placed securities in respect of the Company foregoing for publicly registered securities or any similar concept having a Restricted Subsidiarycomparable purpose or (iii) other administrative expenses (including legal, accounting, other professional fees and costs, printing and other such fees and expenses) incurred in the issuance ordinary course of which is permitted by business, in an aggregate amount in the case of this Indenture.
clause (ciii) not to exceed $5.0 million in any fiscal year. 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 Subsidiary, as the case may be, any of its Restricted Subsidiaries 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 covenant shall be determined by an officer the Board of Directors of the Company, whose resolution with respect thereto shall be delivered to the Trustee. In 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 $100.0 million. Not later than the date of making any Restricted Payment other than in the form of cash having a fair market value in excess of $75.0 million, 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 Supplemental Indenture. For purposes of determining compliance with this Section 4.07, in the event that a Restricted Payment meets Payment, when made, met the criteria of more than one of the exceptions categories described in clauses (i1) through (xv16) above above, or is entitled to be made was permitted pursuant to the first paragraph of this covenantSection 4.07, the Company may, in its sole discretion, classify, and may later reclassify from time Issuers will be entitled to time, classify such Restricted Payment (or portion thereof) on the date of its payment or later reclassify such Restricted Payment (or portion thereof) in any portion thereof into or among any of such applicable provisionsmanner that complies with this Section 4.07.
Appears in 1 contract
Samples: Sixth Supplemental Indenture (Charter Communications, Inc. /Mo/)
Restricted Payments. (a) a. The Company shall will not, and shall will not permit any of its Restricted Subsidiaries to, directly or indirectly:
(i) 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 (A) dividends or distributions accrued or payable in Equity Interests (other than Disqualified InterestsStock) of the Company or (B) and other than dividends or distributions 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 the Company (other than any such Equity Interests owned by the Company or any Restricted Subsidiary of the Company);
(iii) . make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value (x) any Indebtedness of the Company or any Guarantor that is subordinated in right of payment to the Notes or to any Note Guarantee (other than excluding any intercompany Indebtedness permitted under clause between or among the Company and any of its Restricted Subsidiaries), or (viy) of the definition of “Permitted Debt”) any Convertible Indebtedness, in each case, except (a) a payment of interest or principal at the Stated Maturity or (b) the purchase, repurchase or other acquisition of any such Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case, due within one year of the date of such purchase, repurchase or other acquisitionthereof; or
(iv) . make any Restricted Investment (all such payments and other actions set forth in these clauses (i) through (iv) above being collectively referred to as “Restricted Payments”), unless, at the time of and after giving effect to such Restricted Payment:
(A) 1. no Default or Event of Default shall have has occurred and be is continuing or would occur as a consequence thereofof such Restricted Payment;
(B) 2. 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 Fixed Charge Coverage Ratio test set forth in Section 4.09(a)) hereof; and
(C) 3. such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after August 27, 2012 since the Issue Date (excluding Restricted Payments permitted by clauses (i) (provided that at the time of declaring such dividend, such dividend was counted as a Restricted Payment) (ii2), (iii3), (iv4), (v5), (vi6), (vii7), (viii11), (ix), (x), (xi), (xii), (xiii), (xiv12) and (xv14) of paragraph (b) of this Section 4.07(b)4.07), is less than the sum, without duplication, of
(1) : A. 50% of the Consolidated Net Income of the Company for the period (taken as one accounting period) from April 2the beginning of the first fiscal quarter commencing after December 15, 2012 2011 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
(2) 100% of the aggregate net proceeds, including the fair market value of any property or Capital Interests, received by the Company since August 27, 2012 as a contribution to its equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified Interests) or from the issue or sale of Disqualified Interests or debt securities of the Company that have been converted into such Equity Interests (other than Equity Interests (or Disqualified Interests or convertible debt securities) sold to a Subsidiary of the Company), together with the aggregate cash and Cash Equivalents received by the Company or any of its Restricted Subsidiaries at the time of such conversion or exchange plus the amount by which Indebtedness of the Company and its Restricted Subsidiaries is reduced upon the conversion or exchange subsequent to August 27, 2012 of any Indebtedness or Disqualified Interests which are convertible into or exchangeable for Qualified Capital Interests of the Company or any of its Restricted Subsidiaries, plus
(3) 100% of the amount received, including the fair market value of any property received after August 27, 2012 by means of (A) the sale or other disposition (other than to the Company or a Restricted Subsidiary) of Restricted Investments made by the Company or its Restricted Subsidiaries and repurchases and redemptions of such Restricted Investments from the Company or its Restricted Subsidiaries and repayments of loans or advances which constitute Restricted Investments of the Company or its Restricted Subsidiaries or (B) the sale (other than to the Company or a Restricted Subsidiary) of the Capital Interests of an Unrestricted Subsidiary or a distribution from an Unrestricted Subsidiary (other than in each case to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment) or a dividend from an Unrestricted Subsidiary, plus
(4) in the case of the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary or the merger or consolidation of an Unrestricted Subsidiary into the Company or a Restricted Subsidiary or the transfer of assets of an Unrestricted Subsidiary to the Company or a Restricted Subsidiary, the fair market value of the Investment in such Unrestricted Subsidiary (other than an Unrestricted Subsidiary to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment), plus
(5) $141.0 million. The Board of Directors 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 in the Subsidiary so designated will be deemed to be Restricted Payments or Permitted Investments, in the Company’s discretion, at the time of such designation and will reduce the amount available for Restricted Payments or Permitted Investments, as applicable. 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 Payments or Permitted Investments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary.
(b) Section 4.07(a) shall not prohibit:
(i) the payment of any dividend or other distribution or redemption within 60 days after the date of declaration or call for redemption thereof, if at said date of declaration or call for redemption such payment would have complied with the provisions of this Indenture;
(ii) the making of any Restricted Payment in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Subsidiary of the Company) of, Equity Interests of the Company (other than any Disqualified Interests) or from a contribution of capital to the Company; 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 Section 4.07(a)(C)(2);
(iii) the defeasance, redemption, repurchase, replacement, extension, renewal, refinancing or retirement or other acquisition of subordinated Indebtedness or Disqualified Interests in exchange for or with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness;
(iv) the declaration, or payment of any dividend or other distribution 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 current or former officer, director, employee, consultant or agent of Company or any of its Restricted Subsidiaries (or Heirs or other permitted transferees thereof) upon death, disability, retirement, severance or termination of employment or service or in connection with a stock option plan or agreement, shareholders agreement, or similar agreement, plan or arrangement, including amendments thereto; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may not exceed: (A) $10.0 million in any calendar year, with unused amounts being available to be used in any later calendar year; provided that such amount in any calendar year may be increased in an amount not to exceed the net cash proceeds from the sale of Equity Interests (other than Disqualified Interests) of the Company to any officer, director, employee or agent of the Company or any Subsidiary of the Company that occurs after the date of this Indenture, to the extent such net cash proceeds have not otherwise been applied to make Restricted Payments pursuant to Section 4.07(a)(C)(2); plus (B) the cash proceeds of key man life insurance policies received by the Company and its Restricted Subsidiaries after the date of this Indenture that are used for the repurchase, redemption or other acquisition or retirement for value owned by the individual (or such individual’s estate) that is the subject of such insurance;
(vi) the repurchase of Equity Interests deemed to occur upon the exercise of options, warrants or other convertible securities to the extent such Equity Interests represent a portion of the exercise price of those options, warrants or other convertible securities and cash payments in lieu of the issuance of fractional shares in connection with the exercise of options, warrants, or other convertible securities;
(vii) the declaration and payment of regular quarterly dividends on the Company’s Equity Interests in accordance with past practice and not to exceed $0.05 per share;
(viii) additional Restricted Payments not to exceed $150.0 million after August 27, 2012;
(ix) the repurchase of the Company’s Equity Interests in an amount not to exceed $50.0 million after August 27, 2012;
(x) distributions or payments of Securitization Fees and purchases of Securitization Assets pursuant to a Securitization Repurchase Obligation in connection with a Qualified Securitization Financing;
(xi) any payments made in connection with the consummation of the transactions on substantially the terms described in the Offering Memorandum;
(xii) the payment of intercompany subordinated debt, the incurrence of which was permitted under Section 4.09(b)(vi);
(xiii) the purchase of fractional shares by the Company upon conversion of any securities of the Company into Capital Interests of the Company;
(xiv) the repurchase, redemption or other acquisition or retirement for value of subordinated Indebtedness or Disqualified Interests pursuant to the provisions similar to those described under Section 4.14 and Section 4.10; provided that all Notes tendered by Holders of the Notes in connection with the related Change of Control Offer or Asset Sale Offer, as applicable, have been repurchased, redeemed or acquired for value in full; and
(xv) payment of dividends on Disqualified Interests of the Company or a Restricted Subsidiary, the issuance of which is permitted by this Indenture.
(c) 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 Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall be determined by an officer of the Company. In the event that a Restricted Payment meets the criteria of more than one of the exceptions described in (i) through (xv) above or is entitled to be made pursuant to the first paragraph of this covenant, the Company may, in its sole discretion, classify, and may later reclassify from time to time, such Restricted Payment or any portion thereof into or among any of such applicable provisions.
Appears in 1 contract
Samples: Indenture (Castle a M & Co)
Restricted Payments. (a) The Company shall UAH 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 CompanyUAH’s or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company UAH or any of its Restricted Subsidiaries) or to the direct or indirect holders of the CompanyUAH’s or any of its Restricted Subsidiaries’ Equity Interests in their capacity as such (other than (A) dividends dividends, distributions or distributions accrued or payments payable in Qualifying Equity Interests (other than Disqualified Interests) or in the case of preferred stock of UAH, an increase in the Company or liquidation value thereof, and (B) dividends dividends, distributions or distributions payments payable to the Company UAH or a Restricted Subsidiary of the CompanyUAH);
(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 the Company (other than any such Equity Interests owned by the Company or any Restricted Subsidiary of the Company)UAH;
(iii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value (collectively for purposes of this clause (iii), a “purchase”) any Indebtedness of the Company or UAH that is contractually subordinated to the Notes or to the Note Guarantees (excluding any Note Guarantee (other than intercompany Indebtedness permitted under clause (vi) between or among UAH and any of the definition of “Permitted Debt”) its Restricted Subsidiaries), except (a) a any scheduled payment of interest or principal at and any purchase within two years of the Stated Maturity or (b) the purchase, repurchase or other acquisition of any such Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case, due within one year of the date of such purchase, repurchase or other acquisitionthereof; or
(iv) make any Restricted Investment Investment, (all such payments and other actions set forth in these clauses (i) through (iv) 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 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 Fixed Charge Coverage Ratio test set forth in Section 4.09(a)time; and
(C2) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company UAH and its Restricted Subsidiaries after August 27, 2012 since the Issue Date (excluding Restricted Payments permitted by clauses (i2) through (provided that at the time of declaring such dividend, such dividend was counted as a Restricted Payment) (ii), (iii), (iv), (v), (vi), (vii), (viii), (ix), (x), (xi), (xii), (xiii), (xiv) and (xv20) of Section 4.07(b)4.06(b) hereof), is less than the sum, without duplication, of:
(1A) the sum of (x) $1.0 billion and (y) 50% of the Consolidated Net Income of the Company UAH for the period (taken as one accounting period) from April 21, 2012 2021 to the end of the CompanyUAH’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
(2B) 100% of the aggregate net proceeds, including cash proceeds and the fair market value Fair Market Value of any property or Capital Interests, non-cash consideration received by the Company UAH since August 27April 1, 2012 2021 as a contribution to its common equity capital or from the issue or sale of Qualifying Equity Interests of the Company (other than Disqualified InterestsQualifying Equity Interests sold to a Subsidiary of UAH and excluding Excluded Contributions); plus
(C) 100% of the aggregate net cash proceeds and the Fair Market Value of non-cash consideration received by UAH or a Restricted Subsidiary of UAH from the issue or sale of convertible or exchangeable Disqualified Interests Stock of UAH or a Restricted Subsidiary of UAH or convertible or exchangeable debt securities of UAH or a Restricted Subsidiary of UAH (regardless of when issued or sold) or in connection with the Company conversion or exchange thereof, in each case that have been converted into such or exchanged since April 1, 2021 for Qualifying Equity Interests (other than Qualifying Equity Interests (and convertible or exchangeable Disqualified Interests Stock or convertible debt securities) securities sold to a Subsidiary of the CompanyUAH), together with the aggregate cash and Cash Equivalents received by the Company or any of its Restricted Subsidiaries at the time of such conversion or exchange plus the amount by which Indebtedness of the Company and its Restricted Subsidiaries is reduced upon the conversion or exchange subsequent to August 27, 2012 of any Indebtedness or Disqualified Interests which are convertible into or exchangeable for Qualified Capital Interests of the Company or any of its Restricted Subsidiaries, ; plus
(3D) to the extent that any Restricted Investment that was made after April 1, 2021 (other than in reliance on clause (16) of Section 4.06(b)) is (a) sold for cash or otherwise cancelled, liquidated or repaid for cash, or (b) made in an entity that subsequently becomes a Restricted Subsidiary of UAH, the initial amount of such Restricted Investment (or, if less, the amount of cash received upon repayment or sale); plus
(E) to the extent that any Unrestricted Subsidiary of UAH designated as such after the Issue Date is redesignated as a Restricted Subsidiary after the Issue Date, the lesser of (i) the Fair Market Value of UAH’s Restricted Investment in such Subsidiary (made other than in reliance on clause (16) of Section 4.06(b)) 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 after the Issue Date; plus
(F) 100% of the amount received, including the fair market value of any property dividends received after August 27, 2012 in cash by means of (A) the sale or other disposition (other than to the Company UAH or a Restricted Subsidiary) Subsidiary of Restricted Investments made by the Company or its Restricted Subsidiaries and repurchases and redemptions of such Restricted Investments from the Company or its Restricted Subsidiaries and repayments of loans or advances which constitute Restricted Investments of the Company or its Restricted Subsidiaries or (B) the sale (other than to the Company or a Restricted Subsidiary) of the Capital Interests of an Unrestricted Subsidiary or a distribution UAH after April 1, 2021 from an Unrestricted Subsidiary (other than in each case of UAH, to the extent the Investment in that such Unrestricted Subsidiary constituted a Permitted Investment) or a dividend from an Unrestricted Subsidiary, plus
(4) dividends were not otherwise included in the case Consolidated Net Income of the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary or the merger or consolidation of an Unrestricted Subsidiary into the Company or a Restricted Subsidiary or the transfer of assets of an Unrestricted Subsidiary to the Company or a Restricted Subsidiary, the fair market value of the Investment in UAH for such Unrestricted Subsidiary (other than an Unrestricted Subsidiary to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment), plus
(5) $141.0 million. The Board of Directors 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 in the Subsidiary so designated will be deemed to be Restricted Payments or Permitted Investments, in the Company’s discretion, at the time of such designation and will reduce the amount available for Restricted Payments or Permitted Investments, as applicable. 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 Payments or Permitted Investments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiaryperiod.
(b) The provisions of Section 4.07(a4.06(a) shall hereof will not prohibit:
(i1) 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 call for distribution or giving of the redemption thereofnotice, as the case may be, if at said the date of declaration or call for notice, the dividend or redemption such payment would have complied with the provisions of this Indenture;
(ii2) the making of any Restricted Payment in exchange for, or out of or with the net cash proceeds of the substantially concurrent sale (other than to a Subsidiary of the CompanyUAH) of, Qualifying Equity Interests of the Company (other than any Disqualified Interests) or from a the substantially concurrent contribution of common equity capital to the CompanyUAH; provided that the amount of any such net cash proceeds that are utilized for any such redemptionRestricted Payment will not be considered to be net proceeds of Qualifying Equity Interests for purposes of clause (a)(2)(B) of Section 4.06 and will not be considered to be Excluded Contributions;
(3) the payment of any dividend (or, in the case of any partnership or limited liability company, any similar distribution), distribution or payment by a Restricted Subsidiary of UAH to the holders of its Equity Interests on a pro rata basis;
(4) the repurchase, retirementredemption, defeasance or other acquisition shall be excluded from Section 4.07(a)(C)(2);
(iii) the defeasance, redemption, repurchase, replacement, extension, renewal, refinancing or retirement for value of Indebtedness of Company or other acquisition of any Guarantor that is contractually subordinated Indebtedness to the Notes or Disqualified Interests in exchange for or to the Note Guarantees with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness;
(iv) the declaration, or payment of any dividend or other distribution by a Subsidiary of the Company to the holders of its common Equity Interests on a pro rata basis;
(v5) the repurchase, redemption or other redemption, acquisition or retirement for value of any Equity Interests of the Company UAH or any Restricted Subsidiary of the Company UAH held by any current or former officer, director, employee, consultant or agent employee (or their estates or beneficiaries of Company their estates) of UAH or any of its Restricted Subsidiaries (pursuant to any management equity plan or Heirs or other permitted transferees thereof) upon deathequity subscription agreement, disability, retirement, severance or termination of employment or service or in connection with a stock option plan or agreement, shareholders agreement, shareholders’ agreement or similar agreement, plan or arrangement, including amendments thereto; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may not exceed: (A) exceed $10.0 50.0 million in any calendar year, with unused amounts being available to be used in any later calendar year; provided that such amount in any calendar year may be increased in an amount not to exceed the net cash proceeds from the sale of Equity Interests twelve-month period (other than Disqualified Interests) of the Company to any officer, director, employee or agent of the Company or any Subsidiary of the Company that occurs after the date of this Indenture, except to the extent such net cash proceeds have not repurchase, redemption, acquisition or retirement is in connection with the acquisition of a Permitted Business or merger, consolidation or amalgamation otherwise been applied to make Restricted Payments pursuant to Section 4.07(a)(C)(2); plus (B) permitted by this Indenture and in such case the cash proceeds of key man life insurance policies received aggregate price paid by the Company UAH and its Restricted Subsidiaries after may not exceed $100.0 million in connection with such acquisition of a Permitted Business or merger, consolidation or amalgamation); provided further that UAH or any of its Restricted Subsidiaries may carry over and make in subsequent twelve-month periods, in addition to the date amounts permitted for such twelve-month period, up to $25.0 million of unutilized capacity under this Indenture that are used for clause (5) attributable to the repurchase, redemption or other acquisition or retirement for value owned by the individual (or such individual’s estate) that is the subject of such insuranceimmediately preceding twelve-month period;
(vi6) the repurchase of Equity Interests or other securities deemed to occur upon (A) the exercise of stock options, warrants or other securities convertible securities or exchangeable into Equity Interests or any other securities, to the extent such Equity Interests or other securities represent a portion of the exercise price of those stock options, warrants or other securities convertible or exchangeable into Equity Interests or any other securities or (B) the withholding of a portion of Equity Interests issued to employees and other participants under an equity compensation program of UAH or its Subsidiaries to cover withholding tax obligations of such persons in respect of such issuance;
(7) so long as no Default or Event of Default has occurred and is continuing, the declaration and payment of regularly scheduled or accrued dividends, distributions or payments to holders of any class or series of Disqualified Stock or subordinated debt of UAH or any preferred stock of any Restricted Subsidiary of UAH;
(8) payments of cash, dividends, distributions, advances, common stock or other Restricted Payments by UAH or any of its Restricted Subsidiaries to allow the payment of cash payments in lieu of the issuance of fractional shares in connection with upon (A) the exercise of options, options or warrants, (B) the conversion or other convertible securitiesexchange of Capital Stock of any such Person or (C) the conversion or exchange of Indebtedness or hybrid securities into Capital Stock of any such Person;
(vii9) the declaration and payment of regular quarterly dividends on to holders of any class or series of Disqualified Stock of UAH or any Disqualified Stock or preferred stock of any Restricted Subsidiary of UAH to the Company’s Equity Interests extent such dividends are included in accordance the definition of Fixed Charges for such Person;
(10) 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 or retirement of any subordinated Indebtedness of the Company or any Guarantor, in each case, at a purchase price not greater than 101% of the principal amount of such subordinated Indebtedness, plus any accrued and unpaid interest thereon; provided, however, that, if a Change of Control Triggering Event has occurred with past practice respect to Notes of any series prior to such payment, purchase, redemption, defeasance or other acquisition or retirement, the Company (or a third party to the extent permitted by this Indenture) has made a Change of Control Offer for such series of Notes as a result of such Change of Control Triggering Event (it being agreed that the Company or any Guarantor may pay, purchase, redeem, defease or otherwise acquire or retire such subordinated Indebtedness even if the purchase price exceeds 101% of the principal amount of such subordinated Indebtedness; provided that the amount paid in excess of 101% of such principal amount is otherwise permitted under this Section 4.06);
(11) Restricted Payments made with Excluded Contributions;
(12) the distribution, as a dividend or otherwise, of shares of Capital Stock of, or Indebtedness owed to UAH or any of its Restricted Subsidiaries by, any Unrestricted Subsidiary;
(13) the distribution or dividend of assets or Capital Stock of any Person in connection with any full or partial “spin-off” of a Subsidiary or similar transactions; provided that (A) if such Subsidiary is not a Guarantor, no Default or Event of Default is continuing and (B) the assets distributed or dividended do not include, directly or indirectly, any property or asset that constitutes Collateral;
(14) the distribution or dividend of assets or Capital Stock of any Person in connection with any full or partial “spin-off” of a Subsidiary or similar transactions having an aggregate Fair Market Value not to exceed $0.05 per share600.0 million since the Issue Date; provided that the assets distributed or dividended do not include, directly or indirectly, any property or asset that constitutes Collateral;
(viii15) additional so long as no Default or Event of Default has occurred and is continuing, other Restricted Payments not to exceed $150.0 million after August 27, 2012;
(ix) the repurchase of the Company’s Equity Interests in an aggregate amount not to exceed $50.0 million after August 271.0 billion, 2012such aggregate amount to be calculated from the Issue Date;
(x16) distributions so long as no Default or payments Event of Securitization Fees Default has occurred and purchases is continuing, any Restricted Investment by UAH and/or any Restricted Subsidiary of Securitization Assets pursuant to a Securitization Repurchase Obligation in connection with a Qualified Securitization FinancingUAH;
(xi) any payments made in connection with the consummation of the transactions on substantially the terms described in the Offering Memorandum;
(xii17) the payment of intercompany subordinated debtany amounts in respect of any restricted stock units or other instruments or rights whose value is based in whole or in part on the value of any Equity Interests issued to any directors, the incurrence officers or employees of which was permitted under Section 4.09(b)(viUAH or any Restricted Subsidiary of UAH;
(18) so long as no Default or Event of Default has occurred and is continuing, Restricted Payments (i) made to purchase or redeem Equity Interests of UAH or (ii) consisting of payments in respect of any Indebtedness (whether for purchase or prepayment thereof or otherwise);
(xiii19) any Restricted Payment so long as both before and after giving effect to such Restricted Payment, UAH and its Restricted Subsidiaries have Liquidity in the purchase aggregate of fractional shares by the Company upon conversion of any securities of the Company into Capital Interests of the Company;
(xiv) the repurchase, redemption or other acquisition or retirement for value of subordinated Indebtedness or Disqualified Interests pursuant to the provisions similar to those described under Section 4.14 and Section 4.10; provided that all Notes tendered by Holders of the Notes in connection with the related Change of Control Offer or Asset Sale Offer, as applicable, have been repurchased, redeemed or acquired for value in fullat least $2,200,000,000; and
(xv20) payment of dividends on Disqualified Interests Restricted Payments in an aggregate amount which do not exceed 5.0% of the Company or a Consolidated Tangible Assets of UAH and its Restricted Subsidiary, Subsidiaries (calculated at the issuance time of which is permitted by this Indenturesuch Restricted Payment).
(c) The Notwithstanding anything to the contrary in the foregoing Section 4.06(a) or (b), prior to the second anniversary of the Issue Date, UAH will not make any Restricted Payments in the form of open market repurchases of common stock of the UAH or cash dividends on common stock of the UAH. In the case of any Restricted Payment that is not cash, the amount of all such non-cash Restricted Payments (other than cash) shall Payment 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 UAH or such SubsidiaryRestricted Subsidiary of UAH, as the case may be, pursuant to the Restricted Payment. The fair market value For purposes of any non-cash determining compliance with this Section 4.06, if a proposed Restricted Payment shall be determined by an officer of the Company. In the event that a Restricted Payment (or portion thereof) meets the criteria of more than one of the exceptions categories of Restricted Payments described in clauses (i1) through (xv20) above of Section 4.06(b), or is entitled to be made pursuant to Section 4.06(a), UAH will be entitled to classify on the first paragraph date of this covenant, the Company may, in its sole discretion, classify, and may payment or later reclassify from time to time, such Restricted Payment (or portion thereof) in any manner that complies with this Section 4.06. For the avoidance of doubt, the following shall not constitute Restricted Payments and therefore will not be subject to any of the restrictions described in this Section 4.06:
(1) the payment on or with respect to, or purchase, redemption, defeasance or other acquisition or retirement for value of any Indebtedness of UAH or any portion thereof into Restricted Subsidiary of UAH that is not contractually subordinated to any series of Notes or among to any Note Guarantee;
(2) the payment of regularly scheduled amounts in respect of, and the issuance of common stock of UAH upon conversion of, the 6% Convertible Preferred Securities, Term Income Deferred Equity Securities (TIDES)SM issued by Continental Airlines Finance Trust II or the underlying 6% Convertible Junior Subordinated Debentures due 2030 issued by Continental; and
(3) the conversion of the Capital Stock of UAH or the Company pursuant to the Airline/Parent Merger.
(4) Notwithstanding anything in this Indenture to the contrary, if a Restricted Payment is made at a time when a Default has occurred and is continuing and such Default is subsequently cured, the Default or Event of Default arising from the making of such applicable provisionsRestricted Payment during the existence of such Default shall simultaneously be deemed cured.
Appears in 1 contract
Samples: Indenture (United Airlines, Inc.)
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 (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 (A) dividends or distributions accrued or payable in Equity Interests (other than Disqualified InterestsStock) of the Company or (B) and other than dividends or distributions payable to the Company or a Restricted Subsidiary of the Company);
(ii2) purchase, redeem repurchase, redeem, defease 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 the Company (Company, in each case held by Persons other than any such Equity Interests owned by the Company or any a Restricted Subsidiary of the Company);
(iii3) make any principal payment on or with respect to, or purchase, repurchase, redeem, defease or otherwise acquire or retire for value any Subordinated Indebtedness that is subordinated to the Notes or any Note Guarantee (other than Indebtedness permitted under clause (vi) of the definition of “Permitted Debt”) except (a) a payment of interest or principal at Stated Maturity or (b) the payment, purchase, repurchase repurchase, redemption, defeasance, acquisition or other acquisition retirement of any such (i) intercompany Indebtedness between or among the Company and its Restricted Subsidiaries, and (ii) Subordinated Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturitymaturity thereof, in each case, case due within one year of the date of such payment, purchase, repurchase repurchase, redemption, defeasance, acquisition or other acquisitionretirement); or
(iv4) make any Restricted Investment (all such payments and other actions set forth in clauses (i1) through (iv4) 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 Fixed Charge Coverage Ratio test set forth in Section 4.09(a); and
(C3) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after August 27February 3, 2012 (excluding Restricted Payments permitted by clauses clause (i) (provided that at the time of declaring such dividend, such dividend was counted as a Restricted Payment) (ii2), (iii3), (iv4), (v5), (vi6), (vii7), (viii8), (9), (ix10), (x11), (xi12), (xii13), (xiii), 14) or (xiv) and (xv15) of Section 4.07(b)), is less than the sum, without duplication, of:
(1A) 50% of the cumulative Consolidated Net Income (excluding any dividends or distributions to the extent the Company elects to include such dividends or distributions in clause (14)(b) of the definition of “Permitted Investments” in accordance with such clause) of the Company for the period (taken as one accounting period) from April 2commencing on January 1, 2012 2012, 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), Payment; plus
(2B) 100% of the aggregate net proceeds, proceeds (including the fair market value of any property or Capital Interests, other than cash) received by the Company since August 27(other than any net proceeds or assets received in connection with the contribution of assets pursuant to the Separation Agreement) after February 3, 2012 2012, as a contribution to its common equity capital or from the issue or sale (other than to a Subsidiary of the Company) of:
(i) Equity Interests of the Company (other than Disqualified InterestsStock or Designated Preferred Stock) or from of the issue or sale of Company, including the Existing Convertible Preferred Stock; or
(ii) Disqualified Interests Stock, Designated Preferred Stock or debt securities of the Company that in each case have been converted into such or exchanged for Equity Interests (other than Disqualified Stock or Designated Preferred Stock) of the Company, plus
(C) 100% of the fair market value as of the date of issuance of any Equity Interests (or other than Disqualified Interests or convertible debt securitiesStock) sold to a Subsidiary of issued since February 3, 2012, by the Company), together with Company as consideration for the aggregate cash and Cash Equivalents received purchase by the Company or any of its Restricted Subsidiaries at the time of such conversion all or exchange plus the amount by which Indebtedness substantially all of the Company and its Restricted Subsidiaries is reduced upon the conversion assets of, or exchange subsequent to August 27, 2012 of any Indebtedness or Disqualified Interests which are convertible into or exchangeable for Qualified Capital Interests a majority of the Company Voting Stock of, a Related Business (including by means of a merger, consolidation or any of its Restricted Subsidiaries, other business combination permitted under this Indenture); plus
(D) to the extent that any Restricted Investment that was made after February 3, 2012, is sold for cash or other property or otherwise liquidated or repaid for cash, the lesser of (x) 100the cash return of capital with respect to such Restricted Investment or the fair market value of such other property (less the cost of disposition, if any) and (y) the initial amount of such Restricted Investment; plus
(E) 50% of the amount received, aggregate net proceeds (including the fair market value of any property received after August 27, 2012 by means of (A) the sale or other disposition (other than to the Company or a Restricted Subsidiarycash) of Restricted Investments made received by the Company or its any Restricted Subsidiaries and repurchases and redemptions of such Restricted Investments Subsidiary from the Company any distribution or its Restricted Subsidiaries and repayments of loans or advances which constitute Restricted Investments of the Company or its Restricted Subsidiaries or (B) the sale dividend (other than to the Company or a Restricted Subsidiaryreturn of capital) of the Capital Interests of an Unrestricted Subsidiary or a distribution from an Unrestricted Subsidiary (other than whether or not such dividend or distribution is included in each case to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment) or a dividend from an Unrestricted Subsidiary, calculation of Consolidated Net Income); plus
(4F) in the case of the upon redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary or upon the merger or consolidation of an Unrestricted Subsidiary with or into the Company or a any of its Restricted Subsidiary or Subsidiaries, the transfer lesser of assets of an Unrestricted Subsidiary to the Company or a Restricted Subsidiary, (x) the fair market value of the Company’s Investment in such Unrestricted Subsidiary as of the date of redesignation and (other than an Unrestricted Subsidiary to the extent the Investment in y) such Unrestricted Subsidiary constituted a Permitted Investment), plus
(5) $141.0 million. The Board of Directors 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 in the Subsidiary so designated will be deemed to be Restricted Payments or Permitted Investments, in the Company’s discretion, at the time of such designation and will reduce the amount available for Restricted Payments or Permitted Investments, as applicable. All such outstanding Investments will be deemed to constitute Investments in an amount equal to the fair market value as of the date such Investments at the time of such designation. Such designation will only be permitted if such Restricted Payments or Permitted Investments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of was originally designated as an Unrestricted Subsidiary.
(b) The provisions of Section 4.07(a) shall will not prohibit:
(i1) the payment of any dividend or other distribution or consummation of any irrevocable redemption within 60 90 days after the date of declaration thereof or call for the giving of any redemption thereofnotice related thereto, if at said date of declaration or call for redemption notice such payment would have complied with the provisions of this Indenture;
(ii2) the making of any Restricted 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, Equity Interests of the Company (other than any Disqualified InterestsStock) or from a the contribution of common equity capital to the CompanyCompany within 10 Business Days; provided that the amount of any such net cash proceeds that are utilized for any such Restricted Payment shall be excluded from clause (3)(B) of Section 4.07(a);
(3) the redemption, repurchase, retirement, defeasance or other acquisition shall be excluded from Section 4.07(a)(C)(2);
(iii) the defeasance, redemption, repurchase, replacement, extension, renewal, refinancing or retirement or other acquisition for value of subordinated Subordinated Indebtedness or Disqualified Interests in exchange for Stock of the Company or any of its Restricted Subsidiaries with the net cash proceeds from an a substantially concurrent (i) incurrence of Permitted Refinancing IndebtednessIndebtedness or (ii) issuance of Disqualified Stock permitted to be issued under this Indenture;
(iv4) the declaration, or payment of any dividend (or, in the case of any partnership, limited liability company or other distribution business entity, any similar distribution) by a Restricted Subsidiary of the Company to the holders of its common Equity Interests on a pro rata basis;
(v5) 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 current or former officer, director, employee, consultant or agent employee of the Company (or any of its Restricted Subsidiaries (or Heirs Subsidiaries’) pursuant to any equity subscription agreement, stock option agreement, employment agreement, severance agreement or other permitted transferees thereof) upon death, disability, retirement, severance executive compensation arrangement or termination of employment any other management or service or in connection with a stock option employee benefit plan or agreement, shareholders agreement, shareholders’ agreement or similar agreement, plan or arrangement, including amendments thereto; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may shall not exceed: exceed $15.0 million in any calendar year (A) with unused amounts in any calendar year being carried over to subsequent calendar years; provided that the aggregate purchase price for all such repurchased, redeemed, acquired or retired Equity Interests shall not exceed $10.0 20.0 million in any calendar year); and provided, with unused amounts being available to be used in any later calendar year; provided further, that such amount in any calendar year may be increased in by an amount not to exceed the net cash proceeds received by the Company from the sale sales of Equity Interests (other than Disqualified InterestsStock) of the Company to any officerofficers, director, employee directors or agent employees of the Company or any of its Restricted Subsidiaries that occur after the Issue Date (provided that the amount of such cash proceeds used for any such repurchase, redemption, acquisition or retirement will not increase the amount available for Restricted Payments under clause (3)(B) of Section 4.07(a); and provided, further, that the Company may elect to apply all or any portion of the aggregate increase contemplated by this proviso in any calendar year); and provided, further, that cancellation of Indebtedness owing to the Company from members of management of the Company or any Restricted Subsidiary of the Company that occurs after the date in connection with a repurchase of this Indenture, to the extent such net cash proceeds have not otherwise been applied to make Restricted Payments pursuant to Section 4.07(a)(C)(2); plus (B) the cash proceeds Equity Interests of key man life insurance policies received by the Company and its will not be deemed to constitute a Restricted Subsidiaries after the date of this Indenture that are used for the repurchase, redemption or other acquisition or retirement for value owned by the individual (or such individual’s estate) that is the subject of such insurancePayment;
(vi6) the repurchase of Equity Interests deemed to occur (i) upon the exercise of options, warrants or other convertible securities stock options to the extent such Equity Interests represent a portion of the exercise price of those options, warrants stock options and (ii) in connection with the withholding of a portion of the Equity Interests granted or other convertible securities and cash awarded to a director or an employee to pay for the taxes payable by such director or employee upon such grant or award;
(7) payments to holders of the Company’s capital stock in lieu of the issuance of fractional shares in connection with the exercise of options, warrants, or other convertible securitiesits Capital Stock;
(vii) 8) the declaration and payment redemption, repurchase, retirement, defeasance or other acquisition of regular quarterly dividends on Disqualified Stock of the Company in exchange for Disqualified Stock of the Company or with the net cash proceeds from a substantially concurrent issuance of Disqualified Stock by the Company’s Equity Interests , in accordance with past practice and not each case that is permitted to exceed $0.05 per sharebe issued as described under Section 4.09;
(viii) additional Restricted Payments not to exceed $150.0 million after August 27, 2012;
(ix) the repurchase of the Company’s Equity Interests in an amount not to exceed $50.0 million after August 27, 2012;
(x) distributions or payments of Securitization Fees and purchases of Securitization Assets pursuant to a Securitization Repurchase Obligation in connection with a Qualified Securitization Financing;
(xi) any payments made in connection with the consummation of the transactions on substantially the terms described in the Offering Memorandum;
(xii) the payment of intercompany subordinated debt, the incurrence of which was permitted under Section 4.09(b)(vi);
(xiii) the purchase of fractional shares by the Company upon conversion of any securities of the Company into Capital Interests of the Company;
(xiv9) the repurchase, redemption or other acquisition or retirement for value of subordinated any Subordinated Indebtedness or Disqualified Interests pursuant to in accordance with the provisions similar to those described under Section 4.14 Sections 4.10 and Section 4.10; 4.14, provided that all Notes validly tendered by Holders of the Notes in connection with the related a Change of Control Offer or Asset Sale Net Proceeds Offer, as applicable, have been repurchased, redeemed or acquired for value;
(10) the declaration and payment of dividends to holders of any class or series of Disqualified Stock of the Company or any of its Restricted Subsidiaries or any class or series of Preferred Stock of a Restricted Subsidiary issued in accordance with Section 4.09 to the extent such dividends are included in the definition of “Fixed Charges”;
(11) the declaration and payment of dividends to holders of any class or series of Designated Preferred Stock of the Company;
(12) the declaration and payment of dividends on the Existing Convertible Preferred Stock in accordance with the terms thereof as in effect on the Issue Date;
(13) payments or distributions to satisfy dissenters’ rights, pursuant to or in connection with a consolidation, merger or transfer of assets that complies with the provisions of this Indenture applicable to mergers, consolidations and transfers of all or substantially all the property and assets of the Company;
(14) the purchase, redemption, acquisition, cancellation or other retirement for a nominal value per right of any rights granted to all the holders of Common Stock of the Company pursuant to any shareholders’ rights plan adopted for the purpose of protecting shareholders from unfair takeover tactics; provided that any such purchase, redemption, acquisition, cancellation or other retirement of such rights is not for the purpose of evading the limitations of this Section 4.07 (all as determined in fullgood faith by a senior financial officer of the Company); and
(xv15) payment other Restricted Payments in an aggregate amount under this clause (15) at any time outstanding not to exceed the greater of dividends on Disqualified Interests $115.0 million and 3.5% of Consolidated Total Assets (determined as of the Company or a date of any Restricted SubsidiaryPayment pursuant to this clause (15)); provided that in the case of clauses (5) and (13), the issuance of which is permitted by this Indenture.
(c) no Default shall have occurred and be continuing. 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 For purposes of any non-cash Restricted Payment shall be determined by an officer of the Company. In determining compliance with this Section 4.07, in the event that a Restricted Payment meets the criteria of more than one of the exceptions described in clauses (i1) through (xv15) above or is entitled to be made pursuant to the first paragraph of this covenantSection 4.07(a), the Company maywill be permitted, in its sole discretion, classifyto classify the Restricted Payment, and may or later reclassify from time to time, such the Restricted Payment in whole or in part, in any portion thereof into manner that complies with this Section 4.07. For avoidance of doubt, nothing in this Indenture shall restrict the repurchase, redemption, defeasance or among other acquisition or retirement for value of the Notes or the 2022 Notes, including any of such applicable provisionscall premium paid in connection therewith.
Appears in 1 contract
Samples: Indenture (Post Holdings, 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 (whether in cash, securities or other property) 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 (A) dividends or distributions accrued or payable in Equity Interests (other than Disqualified InterestsStock) of the Company or (B) dividends or distributions to the Company or a Restricted Subsidiary of the CompanyCompany and if such Restricted Subsidiary is not a wholly owned Subsidiary, to its other holders of Equity Interests on a pro rata basis);
(ii2) 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 the Company (other than (i) any such Equity Interests owned by the Company or any of its Restricted Subsidiary Subsidiaries or (ii) any acquisition of Equity Interests deemed to occur upon the exercise of options or restricted stock rights if such Equity Interests represent a portion of the Companyexercise price thereof or taxes due in connection therewith);
(iii3) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness that is subordinated to the Notes or any Note Guarantee (other than Indebtedness permitted under clause (vi) of the definition of “Permitted Debt”) intercompany Indebtedness), except (a) a payment of interest or a payment of principal at the Stated Maturity (or (b) the purchase, repurchase or other acquisition of any such Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case, due within one year of the date of such purchase, repurchase or other acquisitionfinal maturity); or
(iv4) make any Restricted Investment (all such payments and other actions set forth in these clauses (i1) through (iv4) above occurring since the Issue Date, being collectively referred to as “Restricted Payments”), unless, at the time of and after giving effect to such Restricted Payment:
(A1) no Default has occurred and is continuing or would occur as a consequence of the Restricted Payment; and
(2) Consolidated Indebtedness to Annualized Consolidated Adjusted EBITDA Ratio would have been no greater than 9.5 to 1, calculated on a pro forma basis giving effect to such Restricted Payment and (x) removing the financial results that would otherwise be included in such calculations in respect of any Property Disposed of after such date and on or prior to the date of making such Restricted Payment and (y) including the financial results that would otherwise be excluded in such calculations in respect of any Property acquired after such date and on or prior to the date of making such Restricted Payment. Notwithstanding the foregoing, the Company may declare or pay any dividend or make any distribution on or in respect of shares of the Company’s Capital Stock, that in each case would otherwise constitute a Restricted Payment, to holders of such Capital Stock to the extent that the declaration or payment of a dividend or making of a distribution in such amount is necessary in order for the Company to qualify as, or maintain its status as, a real estate investment trust under Section 856 of the Code for any taxable year or to avoid entity level taxes, with such dividend to be paid or distribution to be made as and when determined by the Company, whether during or after the end of the relevant taxable year; provided, however, that at the time of, and after giving effect to, any such dividend or distribution, no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof;
(B) thereof and 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 Fixed Charge Coverage Ratio test set forth obligations in Section 4.09(a); and
(C) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after August 27, 2012 (excluding Restricted Payments permitted by clauses (i) (provided that at the time of declaring such dividend, such dividend was counted as a Restricted Payment) (ii), (iii), (iv), (v), (vi), (vii), (viii), (ix), (x), (xi), (xii), (xiii), (xiv) and (xv) of Section 4.07(b)), is less than the sum, without duplication, of
(1) 50% of the Consolidated Net Income of the Company for the period (taken as one accounting period) from April 2, 2012 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
(2) 100% of the aggregate net proceeds, including the fair market value of any property or Capital Interests, received by the Company since August 27, 2012 as a contribution to its equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified Interests) or from the issue or sale of Disqualified Interests or debt securities of the Company that have been converted into such Equity Interests (other than Equity Interests (or Disqualified Interests or convertible debt securities) sold to a Subsidiary of the Company), together with the aggregate cash and Cash Equivalents received by the Company or any of its Restricted Subsidiaries at the time of such conversion or exchange plus the amount by which Indebtedness of the Company and its Restricted Subsidiaries is reduced upon the conversion or exchange subsequent to August 27, 2012 of any Indebtedness or Disqualified Interests which are convertible into or exchangeable for Qualified Capital Interests of the Company or any of its Restricted Subsidiaries, plus
(3) 100% of the amount received, including the fair market value of any property received after August 27, 2012 by means of (A) the sale or other disposition (other than to the Company or a Restricted Subsidiary) of Restricted Investments made by the Company or its Restricted Subsidiaries and repurchases and redemptions of such Restricted Investments from the Company or its Restricted Subsidiaries and repayments of loans or advances which constitute Restricted Investments of the Company or its Restricted Subsidiaries or (B) the sale (other than to the Company or a Restricted Subsidiary) of the Capital Interests of an Unrestricted Subsidiary or a distribution from an Unrestricted Subsidiary (other than in each case to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment) or a dividend from an Unrestricted Subsidiary, plus
(4) in the case of the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary or the merger or consolidation of an Unrestricted Subsidiary into the Company or a Restricted Subsidiary or the transfer of assets of an Unrestricted Subsidiary to the Company or a Restricted Subsidiary, the fair market value of the Investment in such Unrestricted Subsidiary (other than an Unrestricted Subsidiary to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment), plus
(5) $141.0 million. The Board of Directors 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 in the Subsidiary so designated will be deemed to be Restricted Payments or Permitted Investments, in the Company’s discretion, at the time of such designation and will reduce the amount available for Restricted Payments or Permitted Investments, as applicable. 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 Payments or Permitted Investments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary.
(b) Section 4.07(a) shall not prohibit:
(i) the payment of any dividend or other distribution or redemption within 60 days after the date of declaration or call for redemption thereof, if at said date of declaration or call for redemption such payment would have complied with the provisions of this Indenture;
(ii) the making of any Restricted Payment in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Subsidiary of the Company) of, Equity Interests of the Company (other than any Disqualified Interests) or from a contribution of capital to the Company; 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 Section 4.07(a)(C)(2);
(iii) the defeasance, redemption, repurchase, replacement, extension, renewal, refinancing or retirement or other acquisition of subordinated Indebtedness or Disqualified Interests in exchange for or with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness;
(iv) the declaration, or payment of any dividend or other distribution 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 current or former officer, director, employee, consultant or agent of Company or any of its Restricted Subsidiaries (or Heirs or other permitted transferees thereof) upon death, disability, retirement, severance or termination of employment or service or in connection with a stock option plan or agreement, shareholders agreement, or similar agreement, plan or arrangement, including amendments thereto; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may not exceed: (A) $10.0 million in any calendar year, with unused amounts being available to be used in any later calendar year; provided that such amount in any calendar year may be increased in an amount not to exceed the net cash proceeds from the sale of Equity Interests (other than Disqualified Interests) of the Company to any officer, director, employee or agent of the Company or any Subsidiary of the Company that occurs after the date of this Indenture, to the extent such net cash proceeds have not otherwise been applied to make Restricted Payments pursuant to Section 4.07(a)(C)(2); plus (B) the cash proceeds of key man life insurance policies received by the Company and its Restricted Subsidiaries after the date of this Indenture that are used for the repurchase, redemption or other acquisition or retirement for value owned by the individual (or such individual’s estate) that is the subject of such insurance;
(vi) the repurchase of Equity Interests deemed to occur upon the exercise of options, warrants or other convertible securities to the extent such Equity Interests represent a portion of the exercise price of those options, warrants or other convertible securities and cash payments in lieu of the issuance of fractional shares in connection with the exercise of options, warrants, or other convertible securities;
(vii) the declaration and payment of regular quarterly dividends on the Company’s Equity Interests in accordance with past practice and not to exceed $0.05 per share;
(viii) additional Restricted Payments not to exceed $150.0 million after August 27, 2012;
(ix) the repurchase of the Company’s Equity Interests in an amount not to exceed $50.0 million after August 27, 2012;
(x) distributions or payments of Securitization Fees and purchases of Securitization Assets pursuant to a Securitization Repurchase Obligation in connection with a Qualified Securitization Financing;
(xi) any payments made in connection with the consummation of the transactions on substantially the terms described in the Offering Memorandum;
(xii) the payment of intercompany subordinated debt, the incurrence of which was permitted under Section 4.09(b)(vi);
(xiii) the purchase of fractional shares by the Company upon conversion of any securities of the Company into Capital Interests of the Company;
(xiv) the repurchase, redemption or other acquisition or retirement for value of subordinated Indebtedness or Disqualified Interests pursuant to the provisions similar to those described under Section 4.14 and Section 4.10; provided that all Notes tendered by Holders respect of the Notes in connection with the related Change of Control Offer or Asset Sale Offer, as applicable, shall not otherwise have been repurchased, redeemed or acquired for value in full; and
(xv) payment of dividends on Disqualified Interests of the Company or a Restricted Subsidiary, the issuance of which is permitted by this Indentureaccelerated.
(c) 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 Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall be determined by an officer of the Company. In the event that a Restricted Payment meets the criteria of more than one of the exceptions described in (i) through (xv) above or is entitled to be made pursuant to the first paragraph of this covenant, the Company may, in its sole discretion, classify, and may later reclassify from time to time, such Restricted Payment or any portion thereof into or among any of such applicable provisions.
Appears in 1 contract
Samples: Indenture (Sba Communications Corp)
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 ’s, or any of its Restricted Subsidiaries’ Equity Interests Interests, (including, without limitation, including any payment dividend or distribution payable 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 (Aa) dividends or distributions accrued or by the Company payable solely in Equity Interests (other than Disqualified InterestsStock) of the Company Company; or (Bb) dividends or distributions to by a Restricted Subsidiary so long as, in the case of any dividend or distribution payable on or in respect of any class or series of securities issued by a Restricted Subsidiary, the Company or a Restricted Subsidiary receives at least its pro rata share of the Company)such dividend or distribution in accordance with its Equity Interests in such class or series of securities;
(ii2) 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 the Company (other than any such Equity Interests owned by the Company or any Restricted Subsidiary of the Company);
(iii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness that is subordinated to Equity Interests of the Notes Company, or any Note Guarantee direct or indirect parent of the Company, including any purchase, redemption, defeasance, acquisition or retirement, in connection with any merger or consolidation;
(3) make any principal payment on, or redeem, repurchase, defease or otherwise acquire or retire for value in each case, prior to any scheduled repayment, sinking fund payment or maturity, any Subordinated Indebtedness, other than (a) Indebtedness permitted under clause Section 4.09(b)(7) and (vi) of the definition of “Permitted Debt”) except (a) a payment of interest or principal at Stated Maturity 8) or (b) the purchase, repurchase or other acquisition of any such Subordinated Indebtedness purchased in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case, case due within one year of the date of such purchase, repurchase or other acquisition; or
(iv4) make any Restricted Investment Investment; (all such payments and other actions set forth in clauses (i1) through (iv4) above (other than any exceptions thereof) being collectively referred to as “Restricted Payments”), unless, at the time of and after giving effect to such Restricted Payment:
(AI) no Event of Default shall have occurred and be continuing or would occur as a consequence thereof;
(BII) immediately after giving effect to such transaction on a pro forma basis, 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 could incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in under Section 4.09(a)) herein; and
(CIII) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after August 27, 2012 the Issue Date (excluding including Restricted Payments permitted by clauses (i) (provided that at the time of declaring such dividend, such dividend was counted as a Restricted Payment) (ii1), (iii2) (with respect to the payment of dividends on Refunding Capital Stock (as defined below) pursuant to paragraph (b) thereof only), (iv6)(c), (v7), (vi), (vii), (viii), (ix), (x), (xi), (xii), (xiii), (xiv9) and (xv13) (to the extent not deducted in calculating Consolidated Net Income) of Section 4.07(b), but excluding all other Restricted Payments permitted by Section 4.07(b), is less than the sum, sum of (without duplication, of):
(1A) 50% of the Consolidated Net Income of the Company for the period (taken as one accounting period) from April 2beginning on January 1, 2012 2018, 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 (Payment, or, if in the case such Consolidated Net Income for such period is a deficit, less minus 100% of such deficit), ; plus
(2B) 100% of the aggregate net proceeds, including cash proceeds and the fair market value of any marketable securities or other property or Capital Interests, received by the Company since August 27, 2012 as a contribution to its equity capital or from immediately after the issue or sale of Equity Interests of the Company Issue Date (other than Disqualified Interests) or from the issue or sale of Disqualified Interests or debt securities of the Company that have been converted into such Equity Interests (other than Equity Interests (or Disqualified Interests or convertible debt securities) sold to a Subsidiary of the Company), together with the aggregate cash and Cash Equivalents received by the Company or any of its Restricted Subsidiaries at the time of such conversion or exchange plus the amount by which Indebtedness of the Company and its Restricted Subsidiaries is reduced upon the conversion or exchange subsequent to August 27, 2012 of any Indebtedness or Disqualified Interests which are convertible into or exchangeable for Qualified Capital Interests of the Company or any of its Restricted Subsidiaries, plus
(3) 100% of the amount received, including the fair market value of any property received after August 27, 2012 by means of (A) the sale or other disposition (other than to the Company or a Restricted Subsidiary) of Restricted Investments made by the Company or its Restricted Subsidiaries and repurchases and redemptions of such Restricted Investments from the Company or its Restricted Subsidiaries and repayments of loans or advances which constitute Restricted Investments of the Company or its Restricted Subsidiaries or (B) the sale (other than to the Company or a Restricted Subsidiary) of the Capital Interests of an Unrestricted Subsidiary or a distribution from an Unrestricted Subsidiary (other than in each case to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment) or a dividend from an Unrestricted Subsidiary, plus
(4) in the case of the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary or the merger or consolidation of an Unrestricted Subsidiary into the Company or a Restricted Subsidiary or the transfer of assets of an Unrestricted Subsidiary to the Company or a Restricted Subsidiary, the fair market value of the Investment in such Unrestricted Subsidiary (other than an Unrestricted Subsidiary to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment), plus
(5) $141.0 million. The Board of Directors 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 in the Subsidiary so designated will be deemed to be Restricted Payments or Permitted Investments, in the Company’s discretion, at the time of such designation and will reduce the amount available for Restricted Payments or Permitted Investments, as applicable. 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 Payments or Permitted Investments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary.
(b) Section 4.07(a) shall not prohibit:
(i) the payment of any dividend or other distribution or redemption within 60 days after the date of declaration or call for redemption thereof, if at said date of declaration or call for redemption such payment would have complied with the provisions of this Indenture;
(ii) the making of any Restricted Payment in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Subsidiary of the Company) of, Equity Interests of the Company (other than any Disqualified Interests) or from a contribution of capital to the Company; 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 Section 4.07(a)(C)(2);
(iii) the defeasance, redemption, repurchase, replacement, extension, renewal, refinancing or retirement or other acquisition of subordinated Indebtedness or Disqualified Interests in exchange for or with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness;
(iv) the declaration, or payment of any dividend or other distribution 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 current or former officer, director, employee, consultant or agent of Company or any of its Restricted Subsidiaries (or Heirs or other permitted transferees thereof) upon death, disability, retirement, severance or termination of employment or service or in connection with a stock option plan or agreement, shareholders agreement, or similar agreement, plan or arrangement, including amendments thereto; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may not exceed: (A) $10.0 million in any calendar year, with unused amounts being available to be used in any later calendar year; provided that such amount in any calendar year may be increased in an amount not to exceed the net cash proceeds from the sale of Equity Interests (other than Disqualified Interests) of the Company to any officer, director, employee or agent of the Company or any Subsidiary of the Company that occurs after the date of this Indenture, to the extent such net cash proceeds have not otherwise been applied used to make Restricted Payments incur Indebtedness, or issue Disqualified Stock or Preferred Stock pursuant to Section 4.07(a)(C)(24.09(b)(12)(A); plus (B) from the cash proceeds of key man life insurance policies received by the Company and its Restricted Subsidiaries after the date of this Indenture that are used for the repurchase, redemption issue or other acquisition or retirement for value owned by the individual (or such individual’s estate) that is the subject of such insurance;sale of:
(vii) the repurchase of Equity Interests deemed to occur upon the exercise of options, warrants or other convertible securities to the extent such Equity Interests represent a portion of the exercise price of those options, warrants or other convertible securities and cash payments in lieu of the issuance of fractional shares in connection with the exercise of options, warrants, or other convertible securities;
(vii) the declaration and payment of regular quarterly dividends on the Company’s Equity Interests in accordance with past practice and not to exceed $0.05 per share;
(viii) additional Restricted Payments not to exceed $150.0 million after August 27, 2012;
(ix) the repurchase of the Company’s Equity Interests in an amount not to exceed $50.0 million after August 27, 2012;
(x) distributions or payments of Securitization Fees and purchases of Securitization Assets pursuant to a Securitization Repurchase Obligation in connection with a Qualified Securitization Financing;
(xi) any payments made in connection with the consummation of the transactions on substantially the terms described in the Offering Memorandum;
(xii) the payment of intercompany subordinated debt, the incurrence of which was permitted under Section 4.09(b)(vi);
(xiii) the purchase of fractional shares by the Company upon conversion of any securities of the Company into Capital Interests of the Company;
, including Treasury Capital Stock (xiv) the repurchaseas defined below), redemption or other acquisition or retirement for value of subordinated Indebtedness or Disqualified Interests pursuant to the provisions similar to those described under Section 4.14 but excluding cash proceeds and Section 4.10; provided that all Notes tendered by Holders of the Notes in connection with the related Change of Control Offer or Asset Sale Offer, as applicable, have been repurchased, redeemed or acquired for value in full; and
(xv) payment of dividends on Disqualified Interests of the Company or a Restricted Subsidiary, the issuance of which is permitted by this Indenture.
(c) The amount of all Restricted Payments (other than cash) shall be the fair market value on of marketable securities or other property received from the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company or such Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall be determined by an officer of the Company. In the event that a Restricted Payment meets the criteria of more than one of the exceptions described in (i) through (xv) above or is entitled to be made pursuant to the first paragraph of this covenant, the Company may, in its sole discretion, classify, and may later reclassify from time to time, such Restricted Payment or any portion thereof into or among any of such applicable provisions.sale of:
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 (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 (A) dividends or distributions accrued or payable in Equity Interests (other than Disqualified InterestsStock) of the Company or (B) and other than dividends or distributions 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 the Company (other than any such Equity Interests owned by the Company or any Restricted Subsidiary of the Company);
(iii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness of the Company that is contractually subordinated to the Notes or any Note Guarantee (other than excluding any intercompany Indebtedness permitted under clause (vi) between or among the Company and any of the definition of “Permitted Debt”) its Restricted Subsidiaries), except (a) a payment of interest or principal at the Stated Maturity or thereof (b) other than the redemption, purchase, repurchase or other acquisition for value of any such Subordinated Indebtedness purchased in anticipation of satisfying a sinking fund obligation, principal installment or final maturityStated Maturity, in each case, case due within one year of the date of such redemption, purchase, repurchase or other acquisition); or
(iv) make any Restricted Investment Investment; (all such payments and other actions set forth in these clauses (i) through (iv) 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-four fiscal quarter reference period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.09(a); and
(C3) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after August 27, 2012 since the Issue Date (excluding Restricted Payments permitted by clauses (i) (provided that at the time of declaring such dividend, such dividend was counted as a Restricted Payment) (ii2), (iii3), (iv4), (v5), (vi), (vii), (viii), (ix), (x), (xi), (xii), (xiii), (xiv6) and (xv12) of Section 4.07(b4.10(b)), is less than the sum, without duplication, of:
(1A) 50% of the Consolidated Net Income of the Company for the period (taken as one accounting period) from April 2, 2012 the beginning of the first fiscal quarter commencing after 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
(2B) 100% of the aggregate net proceeds, including the fair market value of any property or Capital Interests, cash proceeds received by the Company since August 27, 2012 the Issue Date (i) as a contribution to its common equity capital or from the issue or sale of Equity Interests of the Company including upon exercise of stock options whether issued before or after the Issue Date (other than Disqualified InterestsStock or Excluded Contributions) or (ii) from the issue or sale of convertible or exchangeable Disqualified Interests Stock or convertible or exchangeable debt securities of the Company that have been converted into or exchanged for such Equity Interests (other than Equity Interests (or Disqualified Interests Stock or convertible debt securities) sold to a Subsidiary of the Company), together with the aggregate cash and Cash Equivalents received by the Company or any of its Restricted Subsidiaries at the time of such conversion or exchange plus the amount by which Indebtedness of the Company and its Restricted Subsidiaries is reduced upon the conversion or exchange subsequent to August 27, 2012 of any Indebtedness or Disqualified Interests which are convertible into or exchangeable for Qualified Capital Interests of the Company or any of its Restricted Subsidiaries, ; plus
(3C) 100% of the aggregate amount received, including received in cash and the fair market value Fair Market Value of any property and marketable securities received after August 27, 2012 by means of (Ai) the sale or other disposition (other than to the Company or a Restricted Subsidiary) of Restricted Investments made by the Company or its Restricted Subsidiaries after the Issue Date and repurchases and redemptions of such Restricted Investments from the Company or its Restricted Subsidiaries and repayments of loans or advances which constitute Restricted Investments of by the Company or its Restricted Subsidiaries or (Bii) the sale (other than to the Company or a Restricted Subsidiary) of the Capital Interests Stock of an Unrestricted Subsidiary or a distribution from an Unrestricted Subsidiary (other than in each case to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment) or a dividend from an Unrestricted Subsidiary, in each case of (i) and (ii) not to exceed the lesser of (x) the initial amount treated as a Restricted Investment and (y) the cash return of capital with respect to such Restricted Investment; plus
(4D) in to the case extent that any Unrestricted Subsidiary of the redesignation of an Unrestricted Subsidiary Company is redesignated as a Restricted Subsidiary Subsidiary, or the merger merged or consolidation of an Unrestricted Subsidiary consolidated into the Company or a Restricted Subsidiary Subsidiary, or the transfer of assets of an Unrestricted Subsidiary are transferred to the Company or a Restricted Subsidiary, after the fair market value Issue Date, the lesser of (i) the Fair Market Value of the Company’s Investment in such Unrestricted Subsidiary as of the date of such redesignation or (other than ii) such Fair Market Value as of the date on which such Subsidiary was originally designated as an Unrestricted Subsidiary to after the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment), Issue Date; plus
(5E) $141.0 million. The Board of Directors 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 in the Subsidiary so designated will be deemed to be Restricted Payments or Permitted Investments, in the Company’s discretion, at the time of such designation and will reduce the amount available for Restricted Payments or Permitted Investments, as applicable. All such outstanding Investments will be deemed to constitute Investments in an amount equal to the fair market value sum of the net reduction in the Investments (other than Permitted Investments) made by the Company or any Restricted Subsidiary in any Person resulting from repurchases, repayments or redemptions of such Investments at by such Person, proceeds realized on the time sale of such designation. Such designation will only be permitted if such Restricted Payments Investment and proceeds representing the return of capital (excluding dividends and distributions), in each case received by the Company or Permitted Investments would be permitted at such time and if such any Restricted Subsidiary otherwise meets subsequent to the definition of an Unrestricted SubsidiaryIssue Date.
(b) The provisions of Section 4.07(a4.10(a) shall will not prohibit:prohibit (provided that with respect to clauses (5), (7), (9), (10) and (12) below, no Default has occurred and is continuing or would be caused thereby):
(i1) 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 call for giving of the redemption thereofnotice, as the case may be, if at said the date of declaration or call for notice, the dividend or redemption such payment would have complied with the provisions of this Indenture;
(ii2) the making of any Restricted Payment in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Subsidiary of the Company) of, Equity Interests of the Company (other than any Disqualified InterestsStock) or from a 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 redemption, Restricted Payment will be excluded from clause (3)(B) of Section 4.10(a);
(3) the repurchase, retirementredemption, defeasance or other acquisition shall be excluded from Section 4.07(a)(C)(2);
(iii) the defeasance, redemption, repurchase, replacement, extension, renewal, refinancing or retirement or other acquisition for value of subordinated Subordinated Indebtedness or Disqualified Interests in exchange for or of the Company with the net cash proceeds from an a substantially concurrent incurrence of Permitted Refinancing Indebtedness;
(iv4) the declaration, or payment of any dividend (or, in the case of any partnership or other distribution limited liability company, any similar distribution) by a Restricted Subsidiary of the Company to the holders of its common Equity Interests who are not Affiliates of the Company on a pro rata basis;
(v5) 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 current or former officer, director, employee, consultant director or agent employee of the Company or any of its Restricted Subsidiaries (or Heirs or other permitted transferees thereof) upon deathpursuant to any employment agreement, disabilityequity subscription agreement, retirement, severance or termination of employment or service or in connection with a stock option agreement, shareholders’ agreement, stock option plan, other benefit plan or agreement, shareholders agreement, or similar agreement, plan agreement or arrangement, including amendments thereto; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may not exceed: exceed $7.0 million in any calendar year (A) with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum of $10.0 million in any such calendar year, with unused amounts being available to be used in any later calendar year); provided further that such amount in any calendar year may be increased in by an amount not to exceed the net cash proceeds from the sale of Equity Interests (other than Disqualified Interests) of the Company to any officer, director, employee or agent of the Company or any Subsidiary of the Company that occurs after the date of this Indenture, to the extent such net cash proceeds have not otherwise been applied to make Restricted Payments pursuant to Section 4.07(a)(C)(2); plus (B) the cash proceeds of key man “key-man” life insurance policies received by the Company and or its Restricted Subsidiaries after the date of this Indenture that are used for the repurchase, redemption or other acquisition or retirement for value owned by the individual (or such individual’s estate) that is the subject of such insuranceIssue Date;
(vi6) the repurchase of Equity Interests deemed to occur upon the exercise of options, warrants stock options or other convertible securities stock appreciation rights to the extent such Equity Interests represent a portion of the exercise price of those options, warrants stock options or other convertible securities and cash payments in lieu of the issuance of fractional shares in connection with the exercise of options, warrants, or other convertible securitiesstock appreciation rights;
(vii7) the declaration and payment of regular quarterly regularly scheduled or accrued dividends to holders of any class or series of Disqualified Stock of the Company issued on or after the Company’s Equity Interests Issue Date in accordance with past practice and not to exceed $0.05 per sharethe Fixed Charge Coverage Ratio test set forth in Section 4.09(a);
(viii) additional 8) payments or distributions to shareholders exercising appraisal or discount rights pursuant to applicable law pursuant to or in connection with a merger, consolidation or transfer of all or substantially all of the Company and its Restricted Payments not to exceed $150.0 million after August 27, 2012Subsidiary assets that complies with the provisions of this Indenture;
(ix9) in the event of a Change of Control Triggering Event, and if no Default or Event of Default will have occurred and be continuing, the payment, purchase, redemption, defeasance or other acquisition or retirement of Indebtedness of the Company or any Guarantor that is subordinated or junior in right of payment to the Notes or the Note Guarantee of such Guarantor, in each case, at a purchase price not greater than 101% of the principal amount of such Indebtedness, plus any accrued and unpaid interest thereon; provided that prior to or contemporaneously with such payment, purchase, redemption or defeasance or other acquisition or retirement, the Company (or a third party to the extent permitted by this Indenture) has made the Change of Control Offer with respect to the Notes and has repurchased all Notes validly tendered and not withdrawn in connection with such Change of Control Offer;
(10) in the event of an Asset Sale which requires the Company to make an Asset Sale Offer, and if no Default or Event of Default will have occurred and be continuing, the payment, purchase, redemption, defeasance or other acquisition or retirement of Indebtedness of the Company or any Guarantor that is subordinated or junior in right of payment to the Notes or the Note Guarantee of such Guarantor, in each case, at a purchase price not greater than 100% of the principal amount of such Indebtedness, plus any accrued and unpaid interest thereon; provided that prior or contemporaneously with such payment, purchase, redemption or defeasance or other acquisition or retirement, the Company has made an Asset Sale Offer with respect to the Notes and has repurchased all Notes validly tendered and not withdrawn in connection with such Asset Sale Offer;
(11) the repurchase purchase, redemption, acquisition, cancellation or other retirement for a nominal value per right of any rights granted to all the holders of Capital Stock of the Company pursuant to any shareholders’ rights plan adopted for the purpose of protecting shareholders from unfair takeover practices; provided that any such purchase, redemption, acquisition, cancellation or other retirement of such rights will not be for the purpose of evading the limitations of this Section 4.10 (as determined in good faith by the Board of Directors of the Company’s Equity Interests );
(12) other Restricted Payments in an aggregate amount not to exceed $50.0 25.0 million after August 27, 2012;
(x) distributions or payments of Securitization Fees and purchases of Securitization Assets pursuant to a Securitization Repurchase Obligation in connection with a Qualified Securitization Financing;
(xi) any payments made in connection with since the consummation of the transactions on substantially the terms described in the Offering Memorandum;
(xii) the payment of intercompany subordinated debt, the incurrence of which was permitted under Section 4.09(b)(vi);
(xiii) the purchase of fractional shares by the Company upon conversion of any securities of the Company into Capital Interests of the Company;
(xiv) the repurchase, redemption or other acquisition or retirement for value of subordinated Indebtedness or Disqualified Interests pursuant to the provisions similar to those described under Section 4.14 and Section 4.10; provided that all Notes tendered by Holders of the Notes in connection with the related Change of Control Offer or Asset Sale Offer, as applicable, have been repurchased, redeemed or acquired for value in fullIssue Date; and
(xv13) payment of dividends on Disqualified Interests of the Company or a Restricted Subsidiary, the issuance of which is permitted by this Indenture.
(c) Payments made with Excluded Contributions. 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 If the Fair Market Value of any non-cash Restricted Payment shall assets or securities that are required to be determined valued by this Section 4.10 exceeds $25.0 million, the Board of Directors’ determination of Fair Market Value must be based upon an opinion or appraisal issued by an officer accounting, appraisal or investment banking firm of national standing in the Company. In the event that a Restricted Payment meets the criteria of more than one of the exceptions described in (i) through (xv) above or is entitled to be made pursuant to the first paragraph of this covenant, the Company may, in its sole discretion, classify, and may later reclassify from time to time, such Restricted Payment or any portion thereof into or among any of such applicable provisionsUnited States.
Appears in 1 contract
Samples: Indenture (Xerium Technologies Inc)
Restricted Payments. (a) The Company Issuers shall not, and shall not permit any of its their 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 of the Partnership or any of its Restricted Subsidiaries’ Equity Interests Subsidiaries (including, without limitation, any payment in connection with any merger or consolidation involving the Company Partnership or any of its Restricted Subsidiaries) or to the direct or indirect holders of the Company’s Equity Interests of the Partnership or of any of its Restricted Subsidiaries’ Equity Interests Subsidiaries in their capacity as such (other than (A) dividends or distributions accrued or payable in Equity Interests of the Partnership (other than Disqualified InterestsEquity) of the Company and other than distributions or (B) dividends or distributions payable to the Company Partnership or a Restricted Subsidiary of the CompanyPartnership);.
(ii) except to the extent permitted in clause (iv) below, purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the CompanyPartnership or Leviathan Finance) any Equity Interests of the Company Partnership or of any direct or indirect parent of the Company its Restricted Subsidiaries (other than any such Equity Interests owned by the Company Partnership or any of its Restricted Subsidiary of the CompanySubsidiaries);
(iii) except to the extent permitted in clause (iv) below, make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness that is pari passu with or subordinated to the Notes or any Note Guarantee the Guarantees (other than Indebtedness permitted under clause (vi) of the definition of “Permitted Debt”) Notes or the Guarantees), except (a) a payment of interest or principal at the Stated Maturity or thereof, (b) the a purchase, repurchase redemption, acquisition or other acquisition retirement required to be made pursuant to the terms of such Indebtedness (including pursuant to an asset sale or change of control provision) and (c) any such Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case, due within one year of the date Partnership or any Restricted Subsidiary ownership of such purchase, repurchase the Partnership or other acquisition; ora Restricted Subsidiary;
(iv) make any Restricted Investment other than a Permitted Investment or a Permitted Business Investment (all such payments and other actions set forth in clauses (i) through (iv) 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;thereof and either:
(BA) 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 Fixed Charge Coverage Ratio test set forth in Section 4.09(a); and
(C) for the Partnership's four most recent fiscal quarters for which internal financial statements are available is not less than 1.75 to 1.0 through March 31, 2001, and 2.0 to 1.0 thereafter, such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company Partnership and its Restricted Subsidiaries after August 27, 2012 (excluding during the quarter in which such Restricted Payments permitted by clauses (i) (provided that at the time of declaring such dividend, such dividend was counted as a Restricted Payment) (ii), (iii), (iv), (v), (vi), (vii), (viii), (ix), (x), (xi), (xii), (xiii), (xiv) and (xv) of Section 4.07(b))Payment is made, is less than the sum, without duplication, of
of (1a) 50% Available Cash constituting Cash from Operations as of the Consolidated Net Income of the Company for the period (taken as one accounting period) from April 2, 2012 to the end of the Company’s immediately preceding quarter, (b) the aggregate net cash proceeds of any
(i) substantially concurrent capital contribution to the Partnership from any Person (other than a Restricted Subsidiary of the Partnership) after the Issue Date, (ii) substantially concurrent issuance and sale after the Issue Date of Equity Interests (other than Disqualified Equity) of the Partnership or from the issuance or sale after the Issue Date of convertible or exchangeable Disqualified Equity or convertible or exchangeable debt securities of the Partnership that have been converted into or exchanged for such Equity Interests (other than Disqualified Equity), (iii) to the extent that any Restricted Investment that was made after the Issue Date is sold for cash or Cash Equivalents or otherwise liquidated or repaid for cash or Cash Equivalents, the lesser of the refund of capital or similar payment made in other Cash Equivalents with respect to such Restricted Investment (less the cost of such disposition, if any) and the initial amount of such Restricted Investment (other than to a Restricted Subsidiary of the Partnership), and (c) the net reduction in Investments in Restricted Investments resulting from dividends, repayments of loans or advances, or other transfers of assets in each case to the Partnership or any of its Restricted Subsidiaries from any Person (including, without limitation, Unrestricted Subsidiaries) or from redesignations of Unrestricted Subsidiaries as Restricted Subsidiaries to the extent such amounts have not been included in Available Cash constituting Cash from Operations for any 53 60 quarter commencing on or after the Issue Date (items (b) and (c) being referred to as "Incremental Funds"), less (d) the aggregate amount of Incremental Funds previously expended pursuant to this clause (A) or clause (B) below; or
(B) if the Fixed Charge Coverage Ratio for the Partnership's four most recently ended recent fiscal quarter quarters for which internal financial statements are available at the time of is less than 1.75 to 1.0 through March 31, 2001, and 2.0 to 1.0 thereafter, such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit), plus
(2) 100% of the aggregate net proceeds, including the fair market value of any property or Capital Interests, received by the Company since August 27, 2012 as a contribution to its equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified Interests) or from the issue or sale of Disqualified Interests or debt securities of the Company that have been converted into such Equity Interests (other than Equity Interests (or Disqualified Interests or convertible debt securities) sold to a Subsidiary of the Company)Payment, together with the aggregate cash and Cash Equivalents received amount of all other Restricted Payments made by the Company or any of its Restricted Subsidiaries at the time of such conversion or exchange plus the amount by which Indebtedness of the Company Partnership and its Restricted Subsidiaries during the quarter in which such Restricted Payment is reduced upon made, is less than the conversion or exchange subsequent to August 27sum, 2012 of any Indebtedness or Disqualified Interests which are convertible into or exchangeable for Qualified Capital Interests of the Company or any of its Restricted Subsidiarieswithout duplication, plus
(3) 100% of the amount received, including the fair market value of any property received after August 27, 2012 by means of (A) the sale or other disposition (other than to the Company or a Restricted Subsidiary) of Restricted Investments made by the Company or its Restricted Subsidiaries and repurchases and redemptions of such Restricted Investments from the Company or its Restricted Subsidiaries and repayments of loans or advances which constitute Restricted Investments of the Company or its Restricted Subsidiaries or (B) the sale (other than to the Company or a Restricted Subsidiary) of the Capital Interests of an Unrestricted Subsidiary or a distribution from an Unrestricted Subsidiary (other than in each case to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment) or a dividend from an Unrestricted Subsidiary, plus
(4) in the case of the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary or the merger or consolidation of an Unrestricted Subsidiary into the Company or a Restricted Subsidiary or the transfer of assets of an Unrestricted Subsidiary to the Company or a Restricted Subsidiary, the fair market value of the Investment in such Unrestricted Subsidiary (other than an Unrestricted Subsidiary to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment), plus
(5a) $141.0 million. The Board of Directors 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 in the Subsidiary so designated will be deemed to be Restricted Payments or Permitted Investments, in the Company’s discretion, at the time of such designation and will reduce the amount available for Restricted Payments or Permitted Investments, as applicable. 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 Payments or Permitted Investments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary.
(b) Section 4.07(a) shall not prohibit:
(i) the payment of any dividend or other distribution or redemption within 60 days after the date of declaration or call for redemption thereof, if at said date of declaration or call for redemption such payment would have complied with the provisions of this Indenture;
(ii) the making of any Restricted Payment in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Subsidiary of the Company) of, Equity Interests of the Company (other than any Disqualified Interests) or from a contribution of capital to the Company; 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 Section 4.07(a)(C)(2);
(iii) the defeasance, redemption, repurchase, replacement, extension, renewal, refinancing or retirement or other acquisition of subordinated Indebtedness or Disqualified Interests in exchange for or with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness;
(iv) the declaration, or payment of any dividend or other distribution 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 current or former officer, director, employee, consultant or agent of Company or any of its Restricted Subsidiaries (or Heirs or other permitted transferees thereof) upon death, disability, retirement, severance or termination of employment or service or in connection with a stock option plan or agreement, shareholders agreement, or similar agreement, plan or arrangement, including amendments thereto; provided that 40.0 million less the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may not exceed: (A) $10.0 million in any calendar year, with unused amounts being available to be used in any later calendar year; provided that such amount in any calendar year may be increased in an amount not to exceed the net cash proceeds from the sale of Equity Interests (other than Disqualified Interests) of the Company to any officer, director, employee or agent of the Company or any Subsidiary of the Company that occurs after the date of this Indenture, to the extent such net cash proceeds have not otherwise been applied to make Restricted Payments pursuant to Section 4.07(a)(C)(2); plus (B) the cash proceeds of key man life insurance policies received by the Company and its Restricted Subsidiaries after the date of this Indenture that are used for the repurchase, redemption or other acquisition or retirement for value owned by the individual (or such individual’s estate) that is the subject of such insurance;
(vi) the repurchase of Equity Interests deemed to occur upon the exercise of options, warrants or other convertible securities to the extent such Equity Interests represent a portion of the exercise price of those options, warrants or other convertible securities and cash payments in lieu of the issuance of fractional shares in connection with the exercise of options, warrants, or other convertible securities;
(vii) the declaration and payment of regular quarterly dividends on the Company’s Equity Interests in accordance with past practice and not to exceed $0.05 per share;
(viii) additional Restricted Payments not to exceed $150.0 million after August 27, 2012;
(ix) the repurchase of the Company’s Equity Interests in an amount not to exceed $50.0 million after August 27, 2012;
(x) distributions or payments of Securitization Fees and purchases of Securitization Assets pursuant to a Securitization Repurchase Obligation in connection with a Qualified Securitization Financing;
(xi) any payments made in connection with the consummation of the transactions on substantially the terms described in the Offering Memorandum;
(xii) the payment of intercompany subordinated debt, the incurrence of which was permitted under Section 4.09(b)(vi);
(xiii) the purchase of fractional shares by the Company upon conversion of any securities of the Company into Capital Interests of the Company;
(xiv) the repurchase, redemption or other acquisition or retirement for value of subordinated Indebtedness or Disqualified Interests pursuant to the provisions similar to those described under Section 4.14 and Section 4.10; provided that all Notes tendered by Holders of the Notes in connection with the related Change of Control Offer or Asset Sale Offer, as applicable, have been repurchased, redeemed or acquired for value in full; and
(xv) payment of dividends on Disqualified Interests of the Company or a Restricted Subsidiary, the issuance of which is permitted by this Indenture.
(c) The amount of all Restricted Payments made by the Partnership and its Restricted Subsidiaries pursuant to this clause (other than cashB)(a) shall be during the fair market value period ending on the last day of the fiscal quarter of the Partnership immediately preceding the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company or such Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall be determined by an officer of the Company. In the event that a Restricted Payment meets the criteria of more than one of the exceptions described in (i) through (xv) above or is entitled to be made pursuant to the first paragraph of this covenant, the Company may, in its sole discretion, classify, and may later reclassify from time to time, such Restricted Payment and beginning on the Issue Date, plus (b) Incremental Funds to the extent not previously expended pursuant to this clause (B) or any portion thereof into or among any of such applicable provisionsclause (A) above.
Appears in 1 contract
Samples: Indenture (Leviathan Finance Corp)
Restricted Payments. (a) 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 Capital Stock (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 Capital Stock in their capacity as such (other than (A) dividends or distributions accrued or payable in Equity Interests Capital Stock (other than Disqualified InterestsCapital Stock) of the Company or (B) dividends or distributions to the Company or a Restricted Subsidiary of the Company);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 Capital Stock of the Company or any direct or indirect parent of the Company (other than any such Equity Interests owned by the Company or any Restricted Subsidiary of the Company);Company;
(iii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value value, prior to scheduled maturity, scheduled repayment or scheduled sinking fund payment, any Indebtedness of the Company or any Guarantor that is contractually subordinated in right of payment to the Notes or any Note Guarantee a Guarantee, except (other than Indebtedness permitted under clause (vii) from the Company or a Subsidiary of the definition of “Permitted Debt”) except (a) a payment of interest or principal at Stated Maturity Company or (bii) the purchase, repurchase redemption, defeasance or other acquisition or retirement of any such Indebtedness made in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case, case due within one year of the date of such purchase, repurchase redemption, defeasance or other acquisition; acquisition or retirement; or
(iv) make any Restricted Investment Investment; (all such payments and other actions set forth in clauses (i) through (iv) 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 thereof;of 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 Fixed Charge Coverage Ratio test set forth in Section 4.09(a); 4.14(a) hereof; and
(C3) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after August 27, 2012 the Closing Date (excluding Restricted Payments permitted by clauses (iiii) (provided that at the time of declaring such dividend, such dividend was counted as a Restricted Payment) (ii), (iii), (iv), (v), (vi), (vii), (viii), (ix), through (x), (xi), (xii), (xiii), (xiv) and (xv) of Section 4.07(b4.14(b)), is less than the sum, without duplication, of
of an amount (1which shall not be less than zero) equal to 50% of the Consolidated Net Income of the Company for the period (taken as one accounting period) from April 2, 2012 the beginning of the fiscal quarter in which the Closing Date occurs 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
(2) 100% of the aggregate net proceeds, including the fair market value of any property or Capital Interests, received by the Company since August 27, 2012 as a contribution to its equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified Interests) or from the issue or sale of Disqualified Interests or debt securities of the Company that have been converted into such Equity Interests (other than Equity Interests (or Disqualified Interests or convertible debt securities) sold to a Subsidiary of the Company), together with the aggregate cash and Cash Equivalents received by the Company or any of its Restricted Subsidiaries at the time of such conversion or exchange plus the amount by which Indebtedness of the Company and its Restricted Subsidiaries is reduced upon the conversion or exchange subsequent to August 27, 2012 of any Indebtedness or Disqualified Interests which are convertible into or exchangeable for Qualified Capital Interests of the Company or any of its Restricted Subsidiaries, plus
(3) 100% of the amount received, including the fair market value of any property received after August 27, 2012 by means of (A) the sale or other disposition (other than to the Company or a Restricted Subsidiary) of Restricted Investments made by the Company or its Restricted Subsidiaries and repurchases and redemptions of such Restricted Investments from the Company or its Restricted Subsidiaries and repayments of loans or advances which constitute Restricted Investments of the Company or its Restricted Subsidiaries or (B) the sale (other than to the Company or a Restricted Subsidiary) of the Capital Interests of an Unrestricted Subsidiary or a distribution from an Unrestricted Subsidiary (other than in each case to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment) or a dividend from an Unrestricted Subsidiary, plus
(4) in the case of the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary or the merger or consolidation of an Unrestricted Subsidiary into the Company or a Restricted Subsidiary or the transfer of assets of an Unrestricted Subsidiary to the Company or a Restricted Subsidiary, the fair market value of the Investment in such Unrestricted Subsidiary (other than an Unrestricted Subsidiary to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment), plus
(5) $141.0 million. The Board of Directors 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 in the Subsidiary so designated will be deemed to be Restricted Payments or Permitted Investments, in the Company’s discretion, at the time of such designation and will reduce the amount available for Restricted Payments or Permitted Investments, as applicable. 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 Payments or Permitted Investments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted SubsidiaryPayment.
(b) Section 4.07(a) The preceding provisions shall not prohibit:
(i) the payment of any dividend or other distribution or redemption within 60 days after the date of declaration or call for redemption thereof, if at said the date of declaration or call for redemption such payment would have complied with the provisions of this Indenture;
(ii) the making so long as no Default or Event of any Restricted Payment in exchange forDefault has occurred and is continuing, or out of the net cash proceeds of the substantially concurrent sale (other than to a Subsidiary of the Company) of, Equity Interests of the Company (other than any Disqualified Interests) or from a contribution of capital to the Company; 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 Section 4.07(a)(C)(2);
(iii) the defeasance, redemption, repurchase, replacement, extension, renewal, refinancing or retirement or other acquisition of subordinated Indebtedness or Disqualified Interests in exchange for or with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness;
(iv) the declaration, or payment of any dividend or other distribution 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 Capital Stock of the Company or any Subsidiary of the Company held by any current present or former officeremployee, director, employeeofficer or consultant (or the estate, consultant heirs, family members, spouse, former spouse, domestic partner or agent former domestic partner of any of the foregoing) of the Company or any of its Restricted Subsidiaries (pursuant to any management equity plan or Heirs or other permitted transferees thereof) upon death, disability, retirement, severance or termination of employment or service or in connection with a stock option plan or agreementany other management or employee benefit plan or agreement (and any successor plans and arrangements thereto) (including, shareholders agreementfor the avoidance of doubt, any principal and interest payable on any notes issued by the Company in connection with any such repurchase, retirement or other acquisition), or similar agreement, plan any stock subscription or arrangement, including amendments thereto; shareholder agreement; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may amount of Restricted Payments made under this clause (ii) shall not exceed: (A) $10.0 million exceed in any calendar year, year $3.0 million (with unused amounts being available to be used in any later calendar yearfiscal year being carried over to succeeding fiscal years); provided provided, further that such amount in any calendar year may shall be increased in by an amount not to exceed (A) the net cash proceeds from the sale of Equity Interests (other than Disqualified Interests) Capital Stock of the Company and, to the extent contributed to the Company, Capital Stock of any officerparent entity, directorin each case to current or former employees, employee directors or agent consultants of the Company Company, any parent entity or any Subsidiary of the Company Company’s Subsidiaries that occurs after the date of this Indenture, to the extent such net cash proceeds have not otherwise been applied to make Restricted Payments pursuant to Section 4.07(a)(C)(2); Closing Date plus (B) the cash proceeds of key man life insurance policies received by the Company, its Subsidiaries and to the extent contributed to the Company, any parent entity or the Company and its Restricted Subsidiaries after the date Closing Date; less (C) the amount of any Restricted Payments made in any prior calendar year pursuant to clauses (A) and (B) of this Indenture clause (ii);
(iii) the payment of any dividend or any other payment or distribution by a Subsidiary of the Company to the holders of its Capital Stock of any class on a pro rata basis to the holders of such class;
(iv) payments to holders of Capital Stock (or to the holders of Indebtedness that are used is convertible into or exchangeable for Capital Stock upon such conversion or exchange) in lieu of the issuance of fractional shares;
(v) repurchases of Capital Stock deemed to occur in connection with the exercise (including by cashless exercise) or vesting of stock options or similar instruments, including to the extent necessary to pay withholding or similar taxes related to such exercise or vesting of stock options or similar instruments;
(vi) Restricted Payments paid solely in Capital Stock (other than Disqualified Capital Stock) of the Company;
(vii) Restricted Payments made on or about the Closing Date in connection with the Transactions;
(viii) the acquisition, redemption or retirement of Capital Stock in exchange for, or out of the proceeds of the substantially concurrent issuance of, Capital Stock of the Company;
(ix) the purchase, repurchase, redemption redemption, defeasance or other acquisition or retirement for value owned of Subordinated Indebtedness of the Company or a Guarantor made by exchange for, or out of the individual proceeds of the substantially concurrent sale of, new Indebtedness of the Company or a Guarantor, as the case may be, which is incurred in compliance with Section 4.14 so long as:
(1) the principal amount (or such individual’s estateaccreted value, if applicable) that is the subject of such insurancenew Indebtedness does not exceed the principal amount of (or accreted value, if applicable), plus any accrued and unpaid interest on, the Subordinated Indebtedness being so purchased, repurchased, redeemed, defeased, acquired or retired for value, plus the amount of any premium required to be paid under the terms of the instrument governing the Subordinated Indebtedness being so purchased, repurchased, redeemed, defeased, acquired or retired and any tender premium and any costs, fees and expenses incurred in connection therewith;
(vi2) such new Indebtedness is subordinated to the repurchase Notes or the applicable Guarantee at least to the same extent as such Subordinated Indebtedness so purchased, repurchased, redeemed, defeased, acquired or retired for value;
(3) such new Indebtedness has a final scheduled maturity date equal to or later than the final scheduled maturity date of Equity Interests the Subordinated Indebtedness being so purchased, repurchased, redeemed, defeased, acquired or retired; and
(4) such new Indebtedness has a weighted average life to maturity equal to or greater than the remaining weighted average life to maturity of the Subordinated Indebtedness being so purchased, repurchased, redeemed, defeased, acquired or retired; and
(x) repurchases or retirement for value of Capital Stock deemed to occur upon the exercise of options, stock options or warrants or other convertible securities to the extent if such Equity Interests represent Capital Stock represents a portion of the exercise price of those options, warrants such options or other convertible securities and cash payments in lieu of the issuance of fractional shares in connection with the exercise of options, warrants, or other convertible securities;
(vii) the declaration and payment of regular quarterly dividends on the Company’s Equity Interests in accordance with past practice and not to exceed $0.05 per share;
(viii) additional Restricted Payments not to exceed $150.0 million after August 27, 2012;
(ix) the repurchase of the Company’s Equity Interests in an amount not to exceed $50.0 million after August 27, 2012;
(x) distributions or payments of Securitization Fees and purchases of Securitization Assets pursuant to a Securitization Repurchase Obligation in connection with a Qualified Securitization Financing;
(xi) any payments made in connection with the consummation of the transactions on substantially the terms described in the Offering Memorandum;
(xii) the payment of intercompany subordinated debt, the incurrence of which was permitted under Section 4.09(b)(vi);
(xiii) the purchase of fractional shares by the Company upon conversion of any securities of the Company into Capital Interests of the Company;
(xiv) the repurchase, redemption or other acquisition or retirement for value of subordinated Indebtedness or Disqualified Interests pursuant to the provisions similar to those described under Section 4.14 and Section 4.10; provided that all Notes tendered by Holders of the Notes in connection with the related Change of Control Offer or Asset Sale Offer, as applicable, have been repurchased, redeemed or acquired for value in full; and
(xv) payment of dividends on Disqualified Interests of the Company or a Restricted Subsidiary, the issuance of which is permitted by this Indenture.
(c) . The amount of all Restricted Payments (other than cash) shall be the fair market value (determined, for purposes of this Section 4.13, by the Company in good faith or, in the case of any asset(s) valued in excess of $5.0 million with respect to Restricted Payments (other than Restricted Investments) and in excess of $10.0 million with respect to Restricted Investments, by the Board of Directors of the Company) on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company or such Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of Notwithstanding anything in this Indenture to the contrary, Investments by the Company or any non-cash Restricted Payment Guarantor in any Subsidiary that is not a Guarantor shall be determined by an officer made in the ordinary course of the Company. In the event that a Restricted Payment meets the criteria of more than one of the exceptions described in (i) through (xv) above or is entitled to be made pursuant to the first paragraph of this covenant, the Company may, in its sole discretion, classify, and may later reclassify from time to time, such Restricted Payment or any portion thereof into or among any of such applicable provisionsbusiness.
Appears in 1 contract
Samples: Indenture (BuzzFeed, Inc.)
Restricted Payments. (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly:to take any of the following actions (each a "Restricted Payment"):
(i) declare or pay any dividend or make any distributions on or with respect to its Capital Stock, other payment than dividends or distribution on account distributions payable solely in Capital Stock (other than Disqualified Stock) or in options, warrants or other rights to acquire shares of the Company’s Capital Stock (other than Disqualified Stock) or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any payment in connection with any merger dividends or consolidation involving distributions payable to the Company or any of its Restricted Subsidiaries) or to the direct or indirect holders of the Company’s or Subsidiary; provided that if any of its such Restricted Subsidiaries’ Equity Interests in their capacity as such (other than (A) dividends or distributions accrued or payable in Equity Interests (other than Disqualified Interests) of the Company or (B) dividends or distributions to the Company or Subsidiary is not a Restricted Wholly Owned Subsidiary of the Company);, distributions or dividends to the stockholders of such Restricted Subsidiary other than the Company shall be permitted only to the extent a pro rata portion of such distributions or dividends (measured by value) is paid to the Company,
(ii) purchase, redeem redeem, retire or otherwise acquire or retire for value any Capital Stock of
(including, without limitation, in connection with any merger or consolidation involving the CompanyA) any Equity Interests of the Company or an Unrestricted Subsidiary (including options, warrants or other rights to acquire such shares of Capital Stock) held by any direct Person, or
(B) a Restricted Subsidiary (including options, warrants or indirect parent other rights to acquire such shares of Capital Stock) held by any Affiliate of the Company (other than any such Equity Interests owned by the Company a Wholly Owned Restricted Subsidiary) or any Restricted Subsidiary holder (or any Affiliate of such holder) of 5% or more of the Capital Stock of the Company);,
(iii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness that is subordinated to the Notes or any Note Guarantee (other than Indebtedness permitted under clause (vi) of the definition of “Permitted Debt”) Notes, except (a) a payment of interest or principal at Stated Maturity or (b) the purchase, repurchase or other acquisition of any such Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case, due within one year of the date of such purchase, repurchase or other acquisitionMaturity; or
(iv) make any Restricted Investment (all such payments and Investment, other actions set forth than a Permitted Investment, in clauses (i) through (iv) above being collectively referred to as “Restricted Payments”)any Person, unless, in each case, at the time of of, and after giving effect to such to, the proposed Restricted Payment:
(Ai) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof;result therefrom or shall have occurred and be continuing, or
(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 fourtwo-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 under Section 4.09(a); and, or
(Ciii) such Restricted Payment, together with the aggregate amount of such Restricted Payments and all other Restricted Payments declared or made after the Issue Date (the amount, if other than in cash, to be determined in good faith by the Company and its Restricted Subsidiaries after August 27, 2012 (excluding Restricted Payments permitted by clauses (iBoard of Directors) (provided that at the time of declaring such dividend, such dividend was counted as a Restricted Payment) (ii), (iii), (iv), (v), (vi), (vii), (viii), (ix), (x), (xi), (xii), (xiii), (xiv) and (xv) of Section 4.07(b)), is less than the sum, without duplication, sum of:
(1A) 50100% of the Company's Consolidated Net Income EBITDA (or, if its Consolidated EBITDA is a loss, minus 100% of the Company for amount of such loss) accrued during the period (taken treated as one accounting period) from April 2, 2012 beginning on July 1, 2000 to the end of the Company’s most recently ended recent fiscal quarter for which internal financial statements are available at preceding the time date of such Restricted Payment for which consolidated financial statements of the Companyn have been filed with the Commission, minus 1.65 times the Company's Consolidated Interest Expense for the same period, plus
(orB) the aggregate Net Cash Proceeds received by the Company after July 1, if such Consolidated Net Income for such period 2000 as a capital contribution or from issuing or selling its Capital Stock, and options, warrants and other rights to acquire its Capital Stock, to a Person who is not a deficitRestricted Subsidiary of the Company (in each case, less 100% exclusive of such deficitany Disqualified Stock or any options, warrants or other rights that are redeemable at the option of the holder, or are required to be redeemed, prior to the final Stated Maturity of the Notes), plus
(2C) 100% of the aggregate net proceeds, including the fair market value of any property or Capital Interests, received by the Company since August 27, 2012 as a contribution to its equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified Interests) or from the issue or sale of Disqualified Interests or debt securities of the Company that have been converted into such Equity Interests (other than Equity Interests (or Disqualified Interests or convertible debt securities) sold to a Subsidiary of the Company), together with the aggregate cash and Cash Equivalents received by the Company or any of its Restricted Subsidiaries at the time of such conversion or exchange plus the amount by which Indebtedness of the Company and its Restricted Subsidiaries is reduced upon the conversion or exchange subsequent to August 27, 2012 of any Indebtedness or Disqualified Interests which are convertible into or exchangeable for Qualified Capital Interests of the Company or any of its Restricted Subsidiaries, plus
(3) 100% of the amount received, including the fair market value of any property received after August 27, 2012 by means of (A) the sale or other disposition (other than to the Company or a Restricted Subsidiary) of Restricted Investments made by the Company or its Restricted Subsidiaries and repurchases and redemptions of such Restricted Investments from the Company or its Restricted Subsidiaries and repayments of loans or advances which constitute Restricted Investments of the Company or its Restricted Subsidiaries or (B) the sale (other than to the Company or a Restricted Subsidiary) of the Capital Interests of an Unrestricted Subsidiary or a distribution from an Unrestricted Subsidiary (other than in each case to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment) or a dividend from an Unrestricted Subsidiary, plus
(4) in the case of the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary or the merger or consolidation of an Unrestricted Subsidiary into the Company or a Restricted Subsidiary or the transfer of assets of an Unrestricted Subsidiary to the Company or a Restricted Subsidiary, the fair market value of the Investment in such Unrestricted Subsidiary (other than an Unrestricted Subsidiary to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment), plus
(5) $141.0 million. The Board of Directors 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 in the Subsidiary so designated will be deemed to be Restricted Payments or Permitted Investments, in the Company’s discretion, at the time of such designation and will reduce the amount available for Restricted Payments or Permitted Investments, as applicable. All such outstanding Investments will be deemed to constitute Investments in an amount equal to the fair market value of such net reduction in Investments at the time of such designation. Such designation will only be permitted if such that constitute Restricted Payments resulting from payments of interest, dividends, repayments or Permitted Investments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition loans or advances, returns of an Unrestricted Subsidiary.
(b) Section 4.07(a) shall not prohibit:
(i) the payment of any dividend capital or other distribution or redemption within 60 days after the date transfers of declaration or call for redemption thereof, if at said date of declaration or call for redemption such payment would have complied with the provisions of this Indenture;
(ii) the making of any Restricted Payment in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than assets to a Subsidiary of the Company) of, Equity Interests of the Company (other than any Disqualified Interests) or from a contribution of capital to the Company; 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 Section 4.07(a)(C)(2);
(iii) the defeasance, redemption, repurchase, replacement, extension, renewal, refinancing or retirement or other acquisition of subordinated Indebtedness or Disqualified Interests in exchange for or with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness;
(iv) the declaration, or payment of any dividend or other distribution 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 Restricted Subsidiary of or from the Company held by any current or former officer, director, employee, consultant or agent of Company or any of its Restricted Subsidiaries (or Heirs or other permitted transferees thereof) upon death, disability, retirement, severance or termination of employment or service or in connection with a stock option plan or agreement, shareholders agreement, or similar agreement, plan or arrangement, including amendments thereto; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may not exceed: (A) $10.0 million in any calendar year, with unused amounts being available to be used in any later calendar year; provided that such amount in any calendar year may be increased in an amount not to exceed the net cash proceeds Net Cash Proceeds from the sale of Equity Interests any Investment (other than Disqualified Interests) of the Company to any officer, director, employee or agent of the Company or any Subsidiary of the Company that occurs after the date of this Indenture, except to the extent any such net cash payment or proceeds have not otherwise been applied to make Restricted Payments pursuant to Section 4.07(a)(C)(2are included in the calculation of Consolidated EBITDA); plus (B) the cash proceeds , or from redesignations of key man life insurance policies received by the Company and its Unrestricted Subsidiaries as Restricted Subsidiaries after (valued in each case as provided in the date definition of this Indenture that are used for "Investment"), not to exceed, in each case, the repurchase, redemption or other acquisition or retirement for value owned by the individual (or such individual’s estate) that is the subject of such insurance;
(vi) the repurchase of Equity Interests deemed to occur upon the exercise of options, warrants or other convertible securities to the extent such Equity Interests represent a portion amount of the exercise price of those options, warrants relevant Investments so being reduced or other convertible securities and cash payments in lieu of the issuance of fractional shares in connection with the exercise of options, warrants, or other convertible securities;
(vii) the declaration and payment of regular quarterly dividends on the Company’s Equity Interests in accordance with past practice and not to exceed $0.05 per share;
(viii) additional Restricted Payments not to exceed $150.0 million after August 27, 2012;
(ix) the repurchase of the Company’s Equity Interests in an amount not to exceed $50.0 million after August 27, 2012;
(x) distributions or payments of Securitization Fees and purchases of Securitization Assets pursuant to a Securitization Repurchase Obligation in connection with a Qualified Securitization Financing;
(xi) any payments made in connection with the consummation of the transactions on substantially the terms described in the Offering Memorandum;
(xii) the payment of intercompany subordinated debt, the incurrence of which was permitted under Section 4.09(b)(vi);
(xiii) the purchase of fractional shares by the Company upon conversion of any securities of the Company into Capital Interests of the Company;
(xiv) the repurchase, redemption or other acquisition or retirement for value of subordinated Indebtedness or Disqualified Interests pursuant to the provisions similar to those described under Section 4.14 and Section 4.10sold; provided that all Notes tendered by Holders of the Notes in connection with the related Change of Control Offer or Asset Sale Offer, as applicable, have been repurchased, redeemed or acquired for value in full; and
(xv) payment of dividends on Disqualified Interests of the Company or a Restricted Subsidiary, the issuance of which is permitted by this Indenture.
(c) 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 Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall be determined by an officer of the Company. In the event that a Restricted Payment meets the criteria of more than one of the exceptions described in (i) through (xv) above or is entitled to be made pursuant to the first paragraph of this covenant, the Company may, in its sole discretion, classify, and may later reclassify from time to time, such Restricted Payment or any portion thereof into or among any of such applicable provisions.plus
Appears in 1 contract
Restricted Payments. (a) The Company Partnership 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 CompanyPartnership’s or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company Partnership or any of its Restricted Subsidiaries) or to the direct or indirect holders of the CompanyPartnership’s or of any of its Restricted Subsidiaries’ Equity Interests in their capacity as such (other than (A) dividends or distributions accrued or payable in Equity Interests of the Partnership (other than Disqualified InterestsEquity) of the Company or (B) and other than dividends or distributions payable to the Company Partnership or a Restricted Subsidiary of the CompanyPartnership);
(iib) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Companyan Issuer) any Equity Interests of the Company Partnership or of any direct or indirect parent of the Company its Restricted Subsidiaries (other than any such Equity Interests owned by the Company Partnership or any of its Restricted Subsidiary of the CompanySubsidiaries);
(iiic) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness that is subordinated to the Notes Subordinated Obligation or any Note Guarantee (other than Indebtedness permitted under clause (vi) of the definition of “Permitted Debt”) Guarantor Subordinated Obligation, except (a) a payment of interest or principal at the Stated Maturity thereof or (b) the purchase, repurchase or other acquisition of any such Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case, due within one year of the date of such purchase, repurchase or other acquisitionStated Maturity thereof; or
(ivd) make any Restricted Investment other than a Permitted Investment (all such payments and other actions set forth in clauses (ia) through (ivd) above being collectively referred to as “Restricted Payments”), ; unless, at the time of and after giving effect to such Restricted Payment:
, no Default (Aexcept a Reporting Default) no or Event of Default shall have occurred and be continuing or would occur as a consequence thereof;thereof and either:
(Ba) 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 Fixed Charge Coverage Ratio test set forth in Section 4.09(a); and
(C) for the Partnership’s four most recent fiscal quarters for which internal financial statements are available is not less than 1.75 to 1.0, such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company Partnership and its Restricted Subsidiaries after August 27, 2012 (excluding during the quarter in which such Restricted Payments permitted by clauses (i) (provided that at the time of declaring such dividend, such dividend was counted as a Restricted Payment) (ii), (iii), (iv), (v), (vi), (vii), (viii), (ix), (x), (xi), (xii), (xiii), (xiv) and (xv) of Section 4.07(b))Payment is made, is less than the sum, without duplication, of:
(1i) 50% Available Cash as of the Consolidated Net Income of the Company for the period (taken as one accounting period) from April 2, 2012 to the end of the Companyimmediately preceding quarter, plus
(ii) the sum of (1) the aggregate net cash proceeds of any (A) capital contribution to the Partnership from any Person (other than to a Restricted Subsidiary of the Partnership) made after the 2012 Issue Date or (B) issuance and sale (other than to a Restricted Subsidiary of the Partnership) made after the Issue Date of Equity Interests (other than Disqualified Equity) of the Partnership or from the issuance or sale (other than to a Restricted Subsidiary of the Partnership) made after the 2012 Issue Date of convertible or exchangeable Disqualified Equity or convertible or exchangeable debt securities of the Partnership that have been converted into or exchanged for such Equity Interests (other than Disqualified Equity), and (2) the fair market value of any Permitted Business or long-term tangible assets that are useful in a Permitted Business to the extent acquired in consideration of Equity Interests of the Partnership (other than Disqualified Equity) since the 2012 Issue Date, plus
(iii) to the extent that any Restricted Investment that was made after the 2012 Issue Date is sold for cash or Cash Equivalents or otherwise liquidated or repaid for cash or Cash Equivalents, the lesser of the refund of capital or similar payment made in cash or Cash Equivalents with respect to such Restricted Investment (less the cost of such disposition, if any) and the initial amount of such Restricted Investment (other than to a Restricted Subsidiary of the Partnership), plus
(iv) the net reduction in Restricted Investments resulting from dividends, repayments of loans or advances, or other transfers of assets in each case to the Partnership or any of its Restricted Subsidiaries from any Person (including, without limitation, Unrestricted Subsidiaries) or from redesignations of Unrestricted Subsidiaries as Restricted Subsidiaries, to the extent such amounts have not been included in Available Cash for any period commencing on or after the 2012 Issue Date (items (ii), (iii) and (iv) of this clause (a) being referred to as “Incremental Funds”), minus
(v) the aggregate amount of Incremental Funds previously expended pursuant to this clause (a) or clause (b) below; or
(b) if the Fixed Charge Coverage Ratio for the Partnership’s four most recently ended recent fiscal quarter quarters for which internal financial statements are available at the time of is less than 1.75 to 1.0, such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit), plus
(2) 100% of the aggregate net proceeds, including the fair market value of any property or Capital Interests, received by the Company since August 27, 2012 as a contribution to its equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified Interests) or from the issue or sale of Disqualified Interests or debt securities of the Company that have been converted into such Equity Interests (other than Equity Interests (or Disqualified Interests or convertible debt securities) sold to a Subsidiary of the Company)Payment, together with the aggregate cash and Cash Equivalents received amount of all other Restricted Payments made by the Company Partnership and its Restricted Subsidiaries during the quarter in which such Restricted Payment is made (such Restricted Payments for purposes of this clause (b) meaning only distributions on common units of the Partnership, plus the related distribution on the general partner interest) is less than the sum, without duplication, of:
(i) $200.0 million less the aggregate amount of all prior Restricted Payments made by the Partnership and its Restricted Subsidiaries pursuant to this clause (b)(i) since the 2012 Issue Date, plus
(ii) Incremental Funds to the extent not previously expended pursuant to this clause (b) or clause (a) above. The preceding provisions of this Section 5.08 shall not prohibit:
(c) the payment by the Partnership or any of its Restricted Subsidiaries at the time of such conversion or exchange plus the amount by which Indebtedness of the Company and its Restricted Subsidiaries is reduced upon the conversion or exchange subsequent to August 27, 2012 of any Indebtedness or Disqualified Interests which are convertible into or exchangeable for Qualified Capital Interests of the Company or any of its Restricted Subsidiaries, plus
(3) 100% of the amount received, including the fair market value of any property received after August 27, 2012 by means of (A) the sale or other disposition (other than to the Company or a Restricted Subsidiary) of Restricted Investments made by the Company or its Restricted Subsidiaries and repurchases and redemptions of such Restricted Investments from the Company or its Restricted Subsidiaries and repayments of loans or advances which constitute Restricted Investments of the Company or its Restricted Subsidiaries or (B) the sale (other than to the Company or a Restricted Subsidiary) of the Capital Interests of an Unrestricted Subsidiary or a distribution from an Unrestricted Subsidiary (other than in each case to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment) or a dividend from an Unrestricted Subsidiary, plus
(4) in the case of the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary or the merger or consolidation of an Unrestricted Subsidiary into the Company or a Restricted Subsidiary or the transfer of assets of an Unrestricted Subsidiary to the Company or a Restricted Subsidiary, the fair market value of the Investment in such Unrestricted Subsidiary (other than an Unrestricted Subsidiary to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment), plus
(5) $141.0 million. The Board of Directors 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 in the Subsidiary so designated will be deemed to be Restricted Payments or Permitted Investments, in the Company’s discretion, at the time of such designation and will reduce the amount available for Restricted Payments or Permitted Investments, as applicable. 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 Payments or Permitted Investments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary.
(b) Section 4.07(a) shall not prohibit:
(i) the payment of any dividend or other distribution or redemption dividend within 60 days after the date of declaration or call for redemption thereof, if at said date of declaration or call for redemption such payment would have complied with the provisions of this the Indenture;
(iid) the making redemption, repurchase, retirement, defeasance or other acquisition of any Restricted Payment Subordinated Obligation or any Guarantor Subordinated Obligation or of any Equity Interests of the Partnership in exchange for, or out of the net cash proceeds of, a substantially concurrent (i) capital contribution to the Partnership from any Person (other than a Restricted Subsidiary of the substantially concurrent Partnership) or (ii) sale (other than to a Restricted Subsidiary of the CompanyPartnership) of, of Equity Interests of the Company (other than any Disqualified InterestsEquity) of the Partnership (a sale will be deemed substantially concurrent if such redemption, repurchase, retirement, defeasance or from a contribution of capital to the Companyother acquisition occurs not more than 120 days after such sale); 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 or deducted from Section 4.07(a)(C)(2)the calculation of Available Cash and Incremental Funds;
(iiie) the defeasance, redemption, repurchase, replacementretirement, extension, renewal, refinancing or retirement defeasance or other acquisition of subordinated Indebtedness any Subordinated Obligation or Disqualified Interests in exchange for or Guarantor Subordinated Obligation with the net cash proceeds from an incurrence of of, or in exchange for, Permitted Refinancing Indebtedness;
(ivf) the declaration, or payment of any distribution or dividend or other distribution by a Restricted Subsidiary of to the Company Partnership or to the holders of its common the Equity Interests (other than Disqualified Equity) of such Restricted Subsidiary on a pro rata basis;; and
(vg) so long as no Default (except a Reporting Default) has occurred and is continuing or would be caused thereby, 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 current or former officer, director, employee, consultant or agent of Company Partnership or any of its Restricted Subsidiaries (pursuant to any management equity subscription agreement or Heirs equity option agreement or other permitted transferees thereof) upon death, disability, retirement, severance employee benefit plan or termination of employment to satisfy obligations under any Equity Interests appreciation rights or service or in connection with a stock option plan or agreement, shareholders agreement, or similar agreement, plan or arrangement, including amendments thereto; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may shall not exceed: (A) exceed $10.0 3.0 million in any calendar year. In computing the amount of Restricted Payments previously made for purposes of Section 5.08, with unused amounts being available to be used Restricted Payments made under clauses (a) (but only if the declaration of such dividend or other distribution has not been counted in any later calendar year; provided that such amount in any calendar year may be increased in an amount not to exceed the net cash proceeds from the sale of Equity Interests (other than Disqualified Interestsa prior period) of the Company to any officer, director, employee or agent of the Company or any Subsidiary of the Company that occurs after the date of this Indentureand, to the extent such net cash proceeds have not otherwise been applied of amounts paid to make holders other than the Partnership or any of its Restricted Subsidiaries, clause (d) of this Section shall be included, and Restricted Payments pursuant to Section 4.07(a)(C)(2made under clauses (b); plus , (Bc) the cash proceeds of key man life insurance policies received by the Company and its Restricted Subsidiaries after the date of this Indenture that are used for the repurchase(e) and, redemption or other acquisition or retirement for value owned by the individual (or such individual’s estate) that is the subject of such insurance;
(vi) the repurchase of Equity Interests deemed to occur upon the exercise of options, warrants or other convertible securities except to the extent such Equity Interests represent a portion noted above, clause (d) of the exercise price of those options, warrants or other convertible securities and cash payments in lieu of the issuance of fractional shares in connection with the exercise of options, warrants, or other convertible securities;
(vii) the declaration and payment of regular quarterly dividends on the Company’s Equity Interests in accordance with past practice and this Section shall not to exceed $0.05 per share;
(viii) additional Restricted Payments not to exceed $150.0 million after August 27, 2012;
(ix) the repurchase of the Company’s Equity Interests in an amount not to exceed $50.0 million after August 27, 2012;
(x) distributions or payments of Securitization Fees and purchases of Securitization Assets pursuant to a Securitization Repurchase Obligation in connection with a Qualified Securitization Financing;
(xi) any payments made in connection with the consummation of the transactions on substantially the terms described in the Offering Memorandum;
(xii) the payment of intercompany subordinated debt, the incurrence of which was permitted under Section 4.09(b)(vi);
(xiii) the purchase of fractional shares by the Company upon conversion of any securities of the Company into Capital Interests of the Company;
(xiv) the repurchase, redemption or other acquisition or retirement for value of subordinated Indebtedness or Disqualified Interests pursuant to the provisions similar to those described under Section 4.14 and Section 4.10; provided that all Notes tendered by Holders of the Notes in connection with the related Change of Control Offer or Asset Sale Offer, as applicable, have been repurchased, redeemed or acquired for value in full; and
(xv) payment of dividends on Disqualified Interests of the Company or a Restricted Subsidiary, the issuance of which is permitted by this Indenture.
(c) be included. The amount of all Restricted Payments (other than cash) shall be the fair market value value, on the date of the Restricted Payment Payment, of the Restricted Investment proposed to be made or the asset(s) or securities proposed to be transferred or issued by the Company Partnership or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. The , except that the fair market value of any non-cash Restricted Payment shall distribution or dividend paid within 60 days after the date of declaration will be determined by an officer of the Company. In the event that a Restricted Payment meets the criteria of more than one of the exceptions described in (i) through (xv) above or is entitled to be made pursuant to the first paragraph of this covenant, the Company may, in its sole discretion, classify, and may later reclassify from time to time, such Restricted Payment or any portion thereof into or among any as of such applicable provisionsdate of declaration.
Appears in 1 contract
Samples: Fifteenth Supplemental Indenture (Markwest Energy Partners L P)
Restricted Payments. (a) The Company Issuers shall not, and shall not permit any of its their 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 of the Partnership or any of its Restricted Subsidiaries’ Equity Interests Subsidiaries (including, without limitation, any payment in connection with any merger or consolidation involving the Company Partnership or any of its Restricted Subsidiaries) or to the direct or indirect holders of the Company’s Equity Interests of the Partnership or of any of its Restricted Subsidiaries’ Equity Interests Subsidiaries in their capacity as such (other than (A) dividends or distributions accrued or payable in Equity Interests of the Partnership (other than Disqualified InterestsEquity) of the Company and other than distributions or (B) dividends or distributions payable to the Company Partnership or a Restricted Subsidiary of the CompanyPartnership);.
(ii) except to the extent permitted in clause (iv) below, purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Companyan Issuer) any Equity Interests of the Company Partnership or of any direct or indirect parent of the Company its Restricted Subsidiaries (other than any such Equity Interests owned by the Company Partnership or any of its Restricted Subsidiary of the CompanySubsidiaries);
(iii) except to the extent permitted in clause (iv) below, make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness that is pari passu with or subordinated to the Notes or any Note Guarantee the Guarantees (other than Indebtedness permitted under clause (vi) of the definition of “Permitted Debt”) Notes or the Guarantees), except (a) a payment of interest or principal at the Stated Maturity or thereof, (b) the a purchase, repurchase redemption, acquisition or other acquisition retirement required to be made pursuant to the terms of such Indebtedness (including pursuant to an asset sale or change of control provision) and (c) any such Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case, due within one year of the date of such purchase, repurchase Partnership or other acquisition; orany Restricted Subsidiary owned by the Partnership or a Restricted Subsidiary;
(iv) make any Restricted Investment other than a Permitted Investment or a Permitted Business Investment (all such payments and other actions set forth in clauses (i) through (iv) 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;thereof and either:
(BA) 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 Fixed Charge Coverage Ratio test set forth in Section 4.09(a); and
(C) for the Partnership's four most recent fiscal quarters for which internal financial statements are available is not less than 2.0 to 1.0, such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company Partnership and its Restricted Subsidiaries after August 27, 2012 (excluding during the quarter in which such Restricted Payments permitted by clauses (i) (provided that at the time of declaring such dividend, such dividend was counted as a Restricted Payment) (ii), (iii), (iv), (v), (vi), (vii), (viii), (ix), (x), (xi), (xii), (xiii), (xiv) and (xv) of Section 4.07(b))Payment is made, is less than the sum, without duplication, of
of (1a) 50% Available Cash constituting Cash from Operations as of the Consolidated Net Income of the Company for the period (taken as one accounting period) from April 2, 2012 to the end of the Company’s immediately preceding quarter, plus (b) the aggregate net cash proceeds of any (i) substantially concurrent capital contribution to the Partnership from any Person (other than a Restricted Subsidiary of the Partnership) after the Issue Date, (ii) substantially concurrent issuance and sale after the Issue Date of Equity Interests (other than Disqualified Equity) of the Partnership or from the issuance or sale after the Issue Date of convertible or exchangeable Disqualified Equity or convertible or exchangeable debt securities of the Partnership that have been converted into or exchanged for such Equity Interests (other than Disqualified Equity), (iii) to the extent that any Restricted Investment that was made after the Issue Date is sold for cash or Cash Equivalents or otherwise liquidated or repaid for cash or Cash Equivalents, the lesser of the refund of capital or similar payment made in other Cash Equivalents with respect to such Restricted Investment (less the cost of such disposition, if any) and the initial amount of such Restricted Investment (other than to a Restricted Subsidiary of the Partnership), plus (c) the net reduction in Investments in Restricted Investments resulting from dividends, repayments of loans or advances, or other transfers of assets in each case to the Partnership or any of its Restricted Subsidiaries from any Person (including, without limitation, Unrestricted Subsidiaries) or from redesignations of Unrestricted Subsidiaries as Restricted Subsidiaries to the extent such amounts have not been 51 58 included in Available Cash constituting Cash from Operations for any quarter commencing on or after the Issue Date (items (b) and (c) being referred to as "Incremental Funds"), minus (d) the aggregate amount of Incremental Funds previously expended pursuant to this clause (A) or clause (B) below; or
(B) if the Fixed Charge Coverage Ratio for the Partnership's four most recently ended recent fiscal quarter quarters for which internal financial statements are available at the time of is less than 2.0 to 1.0, such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit), plus
(2) 100% of the aggregate net proceeds, including the fair market value of any property or Capital Interests, received by the Company since August 27, 2012 as a contribution to its equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified Interests) or from the issue or sale of Disqualified Interests or debt securities of the Company that have been converted into such Equity Interests (other than Equity Interests (or Disqualified Interests or convertible debt securities) sold to a Subsidiary of the Company)Payment, together with the aggregate cash and Cash Equivalents received amount of all other Restricted Payments made by the Company or any of its Restricted Subsidiaries at the time of such conversion or exchange plus the amount by which Indebtedness of the Company Partnership and its Restricted Subsidiaries during the quarter in which such Restricted Payment is reduced upon made, is less than the conversion or exchange subsequent to August 27sum, 2012 of any Indebtedness or Disqualified Interests which are convertible into or exchangeable for Qualified Capital Interests of the Company or any of its Restricted Subsidiarieswithout duplication, plus
(3) 100% of the amount received, including the fair market value of any property received after August 27, 2012 by means of (A) the sale or other disposition (other than to the Company or a Restricted Subsidiary) of Restricted Investments made by the Company or its Restricted Subsidiaries and repurchases and redemptions of such Restricted Investments from the Company or its Restricted Subsidiaries and repayments of loans or advances which constitute Restricted Investments of the Company or its Restricted Subsidiaries or (B) the sale (other than to the Company or a Restricted Subsidiary) of the Capital Interests of an Unrestricted Subsidiary or a distribution from an Unrestricted Subsidiary (other than in each case to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment) or a dividend from an Unrestricted Subsidiary, plus
(4) in the case of the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary or the merger or consolidation of an Unrestricted Subsidiary into the Company or a Restricted Subsidiary or the transfer of assets of an Unrestricted Subsidiary to the Company or a Restricted Subsidiary, the fair market value of the Investment in such Unrestricted Subsidiary (other than an Unrestricted Subsidiary to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment), plus
(5a) $141.0 million. The Board of Directors 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 in the Subsidiary so designated will be deemed to be Restricted Payments or Permitted Investments, in the Company’s discretion, at the time of such designation and will reduce the amount available for Restricted Payments or Permitted Investments, as applicable. 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 Payments or Permitted Investments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary.
(b) Section 4.07(a) shall not prohibit:
(i) the payment of any dividend or other distribution or redemption within 60 days after the date of declaration or call for redemption thereof, if at said date of declaration or call for redemption such payment would have complied with the provisions of this Indenture;
(ii) the making of any Restricted Payment in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Subsidiary of the Company) of, Equity Interests of the Company (other than any Disqualified Interests) or from a contribution of capital to the Company; 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 Section 4.07(a)(C)(2);
(iii) the defeasance, redemption, repurchase, replacement, extension, renewal, refinancing or retirement or other acquisition of subordinated Indebtedness or Disqualified Interests in exchange for or with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness;
(iv) the declaration, or payment of any dividend or other distribution 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 current or former officer, director, employee, consultant or agent of Company or any of its Restricted Subsidiaries (or Heirs or other permitted transferees thereof) upon death, disability, retirement, severance or termination of employment or service or in connection with a stock option plan or agreement, shareholders agreement, or similar agreement, plan or arrangement, including amendments thereto; provided that 60.0 million less the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may not exceed: (A) $10.0 million in any calendar year, with unused amounts being available to be used in any later calendar year; provided that such amount in any calendar year may be increased in an amount not to exceed the net cash proceeds from the sale of Equity Interests (other than Disqualified Interests) of the Company to any officer, director, employee or agent of the Company or any Subsidiary of the Company that occurs after the date of this Indenture, to the extent such net cash proceeds have not otherwise been applied to make Restricted Payments pursuant to Section 4.07(a)(C)(2); plus (B) the cash proceeds of key man life insurance policies received by the Company and its Restricted Subsidiaries after the date of this Indenture that are used for the repurchase, redemption or other acquisition or retirement for value owned by the individual (or such individual’s estate) that is the subject of such insurance;
(vi) the repurchase of Equity Interests deemed to occur upon the exercise of options, warrants or other convertible securities to the extent such Equity Interests represent a portion of the exercise price of those options, warrants or other convertible securities and cash payments in lieu of the issuance of fractional shares in connection with the exercise of options, warrants, or other convertible securities;
(vii) the declaration and payment of regular quarterly dividends on the Company’s Equity Interests in accordance with past practice and not to exceed $0.05 per share;
(viii) additional Restricted Payments not to exceed $150.0 million after August 27, 2012;
(ix) the repurchase of the Company’s Equity Interests in an amount not to exceed $50.0 million after August 27, 2012;
(x) distributions or payments of Securitization Fees and purchases of Securitization Assets pursuant to a Securitization Repurchase Obligation in connection with a Qualified Securitization Financing;
(xi) any payments made in connection with the consummation of the transactions on substantially the terms described in the Offering Memorandum;
(xii) the payment of intercompany subordinated debt, the incurrence of which was permitted under Section 4.09(b)(vi);
(xiii) the purchase of fractional shares by the Company upon conversion of any securities of the Company into Capital Interests of the Company;
(xiv) the repurchase, redemption or other acquisition or retirement for value of subordinated Indebtedness or Disqualified Interests pursuant to the provisions similar to those described under Section 4.14 and Section 4.10; provided that all Notes tendered by Holders of the Notes in connection with the related Change of Control Offer or Asset Sale Offer, as applicable, have been repurchased, redeemed or acquired for value in full; and
(xv) payment of dividends on Disqualified Interests of the Company or a Restricted Subsidiary, the issuance of which is permitted by this Indenture.
(c) The amount of all Restricted Payments made by the Partnership and its Restricted Subsidiaries pursuant to this clause (other than cashB)(a) shall be during the fair market value period ending on the last day of the fiscal quarter of the Partnership immediately preceding the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company or such Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall be determined by an officer of the Company. In the event that a Restricted Payment meets the criteria of more than one of the exceptions described in (i) through (xv) above or is entitled to be made pursuant to the first paragraph of this covenant, the Company may, in its sole discretion, classify, and may later reclassify from time to time, such Restricted Payment and beginning on the Issue Date, plus (b) Incremental Funds to the extent not previously expended pursuant to this clause (B) or any portion thereof into or among any of such applicable provisionsclause (A) above.
Appears in 1 contract
Restricted Payments. (a) 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 '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 SubsidiariesCompany) or to the direct or indirect holders of the Company’s 's or any of its Restricted Subsidiaries’ ' Equity Interests in their capacity as such (other than (A) dividends or distributions accrued or payable in Equity Interests (other than Disqualified InterestsStock) of the Company or (B) dividends or distributions 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 the Company or other Affiliate of the Company (other than any such Equity Interests owned by the Company or any Restricted Wholly Owned Subsidiary of the Company);
; (iii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness that is pari passu with or subordinated to the Notes or any Note Guarantee (other than Indebtedness permitted under clause (vi) of the definition of “Permitted Debt”) Notes), except (a) a payment of interest or principal at Stated Maturity Maturity; or (b) the purchase, repurchase or other acquisition of any such Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case, due within one year of the date of such purchase, repurchase or other acquisition; or
(iv) make any Restricted Investment (all such payments and other actions set forth in clauses (i) through (iv) 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 Fixed Charge Coverage Ratio test set forth in Section 4.09(a); and
(Cc) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after August 27, 2012 the date of this Indenture (excluding Restricted Payments permitted by clauses (i) (provided that at the time of declaring such dividend, such dividend was counted as a Restricted Payment) (ii), (iii), (iv), (v), (vi), (vii), (viii), (ix), (x), (xi), (xii), (xiii), (xiv) and (xvv) of Section 4.07(b)the next succeeding paragraph), is less than the sum, without duplication, of
duplication of (1i) 50% of the Consolidated Net Income of the Company for the period (taken as one accounting period) from April 2, 2012 the beginning of the first fiscal quarter commencing after the 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 (2ii) 100% of the aggregate net proceeds, including the fair market value of any property or Capital Interests, cash proceeds received by the Company since August 27, 2012 the date of this Indenture 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 InterestsStock) or from the issue or sale of Disqualified Interests Stock or debt securities of the Company that have been converted into such Equity Interests (other than Equity Interests (or Disqualified Interests Stock or convertible debt securities) sold to a Subsidiary of the CompanyCompany and other than Disqualified Stock or convertible debt securities that have been converted into Disqualified Stock), together plus (iii) to the extent that any Restricted Investment that was made after the 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 aggregate cash cost of disposition, if any) and Cash Equivalents received by (B) the Company or any of its Restricted Subsidiaries at the time initial amount of such conversion or exchange plus the amount by which Indebtedness of the Company and its Restricted Subsidiaries is reduced upon the conversion or exchange subsequent to August 27Investment, 2012 of any Indebtedness or Disqualified Interests which are convertible into or exchangeable for Qualified Capital Interests of the Company or any of its Restricted Subsidiaries, plus
less (3iv) 100% of the amount received, including amounts permitted to be paid under the fair market value Tax Distribution Agreement accrued since the date of any property received after August 27, 2012 by means of (A) the sale or other disposition (other than to the Company or a Restricted Subsidiary) of Restricted Investments made by the Company or its Restricted Subsidiaries and repurchases and redemptions of such Restricted Investments from the Company or its Restricted Subsidiaries and repayments of loans or advances which constitute Restricted Investments of the Company or its Restricted Subsidiaries or (B) the sale (other than to the Company or a Restricted Subsidiary) of the Capital Interests of an Unrestricted Subsidiary or a distribution from an Unrestricted Subsidiary (other than in each case to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment) or a dividend from an Unrestricted Subsidiary, plus
(4) in the case of the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary or the merger or consolidation of an Unrestricted Subsidiary into the Company or a Restricted Subsidiary or the transfer of assets of an Unrestricted Subsidiary to the Company or a Restricted Subsidiary, the fair market value of the Investment in such Unrestricted Subsidiary (other than an Unrestricted Subsidiary to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment), plus
(5) $141.0 millionthis Indenture. The Board of Directors 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 in the Subsidiary so designated will be deemed to be Restricted Payments or Permitted Investments, in the Company’s discretion, at the time of such designation and will reduce the amount available for Restricted Payments or Permitted Investments, as applicable. 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 Payments or Permitted Investments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary.
(b) Section 4.07(a) foregoing provisions shall not prohibit:
prohibit (i) the payment of any dividend or other distribution or redemption within 60 days after the date of declaration or call for redemption thereof, if at said date of declaration or call for redemption such payment would have complied with the provisions of this Indenture;
; (ii) the making redemption, repurchase, retirement, defeasance or other acquisition of any Restricted Payment pari passu or subordinated Indebtedness or Equity Interests of the Company in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Subsidiary of the Company) of, other Equity Interests of the Company (other than any Disqualified Interests) or from a contribution of capital to the CompanyStock); 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 Section 4.07(a)(C)(2);
clause (c)(ii) of the preceding paragraph; (iii) the defeasance, redemption, repurchase, replacement, extension, renewal, refinancing or retirement repurchase or other acquisition of pari passu or subordinated Indebtedness or Disqualified Interests in exchange for or with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness;
; (iv) the declaration, or payment of any dividend or other distribution by a Subsidiary of the Company to the holders of its common Equity Interests on a pro rata basis;
; (v) the repurchaseso long as no Default or Event of Default has occurred and is continuing, redemption or other acquisition or retirement for value of any Equity Interests of payments by the Company or any Subsidiary of the Company held by any current Company, directly or former officerindirectly, director, employee, consultant or agent of Company or any of its Restricted Subsidiaries (or Heirs or other permitted transferees thereof) upon death, disability, retirement, severance or termination of employment or service or to the Company's stockholders in connection accordance with a stock option plan or agreement, shareholders agreement, or similar agreement, plan or arrangement, including amendments thereto; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may not exceed: (A) $10.0 million Tax Distribution Agreement as in any calendar year, with unused amounts being available to be used in any later calendar year; provided that such amount in any calendar year may be increased in an amount not to exceed the net cash proceeds from the sale of Equity Interests (other than Disqualified Interests) of the Company to any officer, director, employee or agent of the Company or any Subsidiary of the Company that occurs after effect on the date of this Indenture, to ; (vi) payments made under the extent such net cash proceeds have not otherwise been applied to make Restricted Payments pursuant to Section 4.07(a)(C)(2)Consulting Agreement; plus and (Bvii) the cash proceeds of key man life insurance policies received by the Company and its Restricted Subsidiaries payment on or after the date of this Indenture that are used for the repurchase, redemption or other acquisition or retirement for value owned by the individual (or such individual’s estate) that is the subject of such insurance;
(vi) the repurchase of Equity Interests deemed to occur upon the exercise of options, warrants or other convertible securities to the extent such Equity Interests represent a portion of the exercise price of those options, warrants or other convertible securities and cash payments dividends in lieu of the issuance of fractional shares in connection with the exercise of options, warrants, or other convertible securities;
(vii) the declaration and payment of regular quarterly dividends on the Company’s Equity Interests in accordance with past practice and not to exceed $0.05 per share;
(viii) additional Restricted Payments not to exceed $150.0 million after August 27, 2012;
(ix) the repurchase respect of the Company’s Equity Interests 's common stock in an aggregate amount not to exceed exceeding $50.0 million after August 27, 2012;
(x) distributions or payments of Securitization Fees and purchases of Securitization Assets pursuant to a Securitization Repurchase Obligation in connection with a Qualified Securitization Financing;
(xi) any payments made in connection with the consummation of the transactions on substantially the terms described in the Offering Memorandum;
(xii) the payment of intercompany subordinated debt, the incurrence of which was permitted under Section 4.09(b)(vi);
(xiii) the purchase of fractional shares by the Company upon conversion of any securities of the Company into Capital Interests of the Company;
(xiv) the repurchase, redemption or other acquisition or retirement for value of subordinated Indebtedness or Disqualified Interests pursuant to the provisions similar to those described under Section 4.14 and Section 4.10; provided that all Notes tendered by Holders of the Notes in connection with the related Change of Control Offer or Asset Sale Offer, as applicable, have been repurchased, redeemed or acquired for value in full; and
(xv) payment of dividends on Disqualified Interests of the Company or a Restricted Subsidiary, the issuance of which is permitted by this Indenture.
(c) 15.0 million. 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 Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall be determined by an officer the Board of Directors whose resolution with respect thereto shall be delivered to the Company. In the event that a Restricted Payment meets the criteria of more than one of the exceptions described in (i) through (xv) above or is entitled Trustee, such determination to be made pursuant to 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 first paragraph date of this covenantmaking any Restricted Payment, the Company may, in its sole discretion, classify, and may later reclassify from time shall deliver to time, 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 any portion thereof into or among any of such applicable provisionsappraisal required by this Indenture.
Appears in 1 contract
Samples: Indenture (Luiginos Inc)
Restricted Payments. (a) The Company Borrower 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 Borrower'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 SubsidiariesBorrower) or to the direct or indirect holders of the Company’s Borrower's or any of its Restricted Subsidiaries’ ' Equity Interests in their capacity as such (other than (A) dividends or distributions accrued or payable in Equity Interests (other than Disqualified InterestsStock) of the Company Borrower or (B) dividends or distributions to by a Restricted Subsidiary so long as, in the Company case of any dividend or distribution payable on or in respect of any class or series of securities issued by a Restricted Subsidiary other than a Wholly Owned Restricted Subsidiary, the Borrower or a Restricted Subsidiary receives at least its pro rata share of the Companysuch dividend or distribution in accordance with its Equity Interests in such class or series of securities);
; (ii) purchase, redeem or otherwise acquire or retire for value (including, including without limitation, in connection with any merger or consolidation involving the CompanyBorrower) any Equity Interests of the Company Borrower or any direct or indirect parent of the Company (other than any such Equity Interests owned by the Company or any Restricted Subsidiary of the Company);
Borrower; (iii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness that is subordinated to the Notes or any Note Guarantee (other than Indebtedness permitted under clause (vi) of the definition of “Permitted Debt”) Bridge Loans except (a) a payment of interest or principal at Stated Maturity Maturity; or (b) the purchase, repurchase or other acquisition of any such Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case, due within one year of the date of such purchase, repurchase or other acquisition; or
(iv) make any Restricted Investment (all such payments and other actions set forth in clauses (i) through (iv) above being collectively referred to as “Restricted Payments”"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;; and
(Bb) the Company Borrower 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 Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 4.09(a)4.7; and
(Cc) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company Borrower and its Restricted Subsidiaries after August 27since April 30, 2012 1997 (excluding Restricted Payments permitted by clauses (iii) (provided that at the time of declaring such dividend, such dividend was counted as a Restricted Payment) (ii), (iii), (iv), (v), (vi), through (vii), (viii), (ix), (x), (xi), (xii), (xiii), (xiv) and (xv) of Section 4.07(b)the next succeeding paragraph or of the kind contemplated by such clauses that were made prior to the date of this Agreement), is less than the sum, without duplication, of
sum of (1i) 50% of the Consolidated Net Income of the Company Borrower for the period (taken as one accounting period) from April 2July 1, 2012 1997 to the end of the Company’s Borrower'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 (2ii) 100% of the aggregate net proceeds, including the fair market value of any property or Capital Interests, cash proceeds received by the Company Borrower since August 27April 30, 2012 as 1997 from a contribution to its common equity capital or from the issue or sale of Equity Interests of the Company Borrower (other than Disqualified InterestsStock) or from the issue or sale of Disqualified Interests Stock or debt securities of the Company Borrower that have been converted into such Equity Interests (other than Equity Interests (or Disqualified Interests Stock or convertible debt securities) sold to a Subsidiary of the CompanyBorrower and other than Disqualified Stock or convertible debt securities that have been converted into Disqualified Stock), together with plus (iii) to the aggregate extent that any Restricted Investment that was made after April 30, 1997 is sold for cash and Cash Equivalents received by the Company or any of its Restricted Subsidiaries at the time of such conversion otherwise liquidated or exchange plus repaid for cash, the amount by which Indebtedness of cash received in connection therewith (or from the sale of Marketable Securities received in connection therewith), plus (iv) to the extent not already included in such Consolidated Net Income of the Company Borrower for such period and its Restricted Subsidiaries is reduced upon the conversion or exchange subsequent to August 27without duplication, 2012 of any Indebtedness or Disqualified Interests which are convertible into or exchangeable for Qualified Capital Interests of the Company or any of its Restricted Subsidiaries, plus
(3A) 100% of the aggregate amount received, including the fair market value of any property cash received after August 27, 2012 by means of (A) the sale or other disposition (other than to the Company or a Restricted Subsidiary) of Restricted Investments made by the Company or its Restricted Subsidiaries and repurchases and redemptions of such Restricted Investments from the Company or its Restricted Subsidiaries and repayments of loans or advances which constitute Restricted Investments of the Company or its Restricted Subsidiaries or (B) the sale (other than to the Company or a Restricted Subsidiary) of the Capital Interests of an Unrestricted Subsidiary or a distribution from an Unrestricted Subsidiary (other than in each case to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment) or as a dividend from an Unrestricted Subsidiary, plus
(4B) in the case 100% of the redesignation cash received upon the sale of an Unrestricted Subsidiary Marketable Securities received as a Restricted Subsidiary or the merger or consolidation of an Unrestricted Subsidiary into the Company or a Restricted Subsidiary or the transfer of assets of an Unrestricted Subsidiary to the Company or a Restricted Subsidiary, the fair market value of the Investment in such Unrestricted Subsidiary (other than an Unrestricted Subsidiary to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment), plus
(5) $141.0 million. The Board of Directors 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 in the Subsidiary so designated will be deemed to be Restricted Payments or Permitted Investments, in the Company’s discretion, at the time of such designation and will reduce the amount available for Restricted Payments or Permitted Investments, as applicable. 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 Payments or Permitted Investments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of dividend from an Unrestricted Subsidiary.
, and (bC) Section 4.07(a) shall not prohibit:
(i) the payment of any dividend or other distribution or redemption within 60 days after the date of declaration or call for redemption thereof, if at said date of declaration or call for redemption such payment would have complied with the provisions of this Indenture;
(ii) the making of any Restricted Payment in exchange for, or out 100% of the net cash proceeds of the substantially concurrent sale (other than to a Subsidiary of the Company) of, Equity Interests of the Company (other than any Disqualified Interests) or from a contribution of capital to the Company; provided that the amount assets of any such net cash proceeds that are utilized for any such redemption, repurchase, retirement, defeasance or other acquisition shall be excluded from Section 4.07(a)(C)(2);
(iii) the defeasance, redemption, repurchase, replacement, extension, renewal, refinancing or retirement or other acquisition of subordinated Indebtedness or Disqualified Interests in exchange for or with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness;
(iv) the declaration, or payment of any dividend or other distribution by a Unrestricted 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 current or former officer, director, employee, consultant or agent of Company or any of its Restricted Subsidiaries (or Heirs or other permitted transferees thereof) upon death, disability, retirement, severance or termination of employment or service or in connection with a stock option plan or agreement, shareholders agreement, or similar agreement, plan or arrangement, including amendments thereto; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may not exceed: (A) $10.0 million in any calendar year, with unused amounts being available to be used in any later calendar year; provided that such amount in any calendar year may be increased in an amount not to exceed the net cash proceeds from the sale of Equity Interests (other than Disqualified Interests) of the Company to any officer, director, employee or agent of the Company or any Subsidiary of the Company that occurs after the date of this Indenture, to the extent such net cash proceeds have not otherwise been applied to make Restricted Payments pursuant to Section 4.07(a)(C)(2); plus (B) the cash proceeds of key man life insurance policies received by the Company and its Restricted Subsidiaries after the date of this Indenture that are used for the repurchase, redemption or other acquisition or retirement for value owned by the individual (or such individual’s estate) that is the subject of such insurance;
(vi) the repurchase of Equity Interests deemed to occur upon the exercise of options, warrants or other convertible securities to the extent such Equity Interests represent a portion of the exercise price of those options, warrants or other convertible securities and cash payments in lieu of the issuance of fractional shares in connection with the exercise of options, warrants, or other convertible securities;
(vii) the declaration and payment of regular quarterly dividends on the Company’s Equity Interests in accordance with past practice and not to exceed $0.05 per share;
(viii) additional Restricted Payments not to exceed $150.0 million after August 27, 2012;
(ix) the repurchase of the Company’s Equity Interests in an amount not to exceed $50.0 million after August 27, 2012;
(x) distributions or payments of Securitization Fees and purchases of Securitization Assets pursuant to a Securitization Repurchase Obligation in connection with a Qualified Securitization Financing;
(xi) any payments made in connection with the consummation of the transactions on substantially the terms described in the Offering Memorandum;
(xii) the payment of intercompany subordinated debt, the incurrence of which was permitted under Section 4.09(b)(vi);
(xiii) the purchase of fractional shares by the Company upon conversion of any securities of the Company into Capital Interests of the Company;
(xiv) the repurchase, redemption or other acquisition or retirement for value of subordinated Indebtedness or Disqualified Interests pursuant to the provisions similar to those described under Section 4.14 and Section 4.10; provided that all Notes tendered by Holders of the Notes in connection with the related Change of Control Offer or Asset Sale Offer, as applicable, have been repurchased, redeemed or acquired for value in full; and
(xv) payment of dividends on Disqualified Interests of the Company or a Restricted Subsidiary, the issuance of which is permitted by this Indenture.
(c) 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 Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall be determined by an officer of the Company. In the event that a Restricted Payment meets the criteria of more than one of the exceptions described in (i) through (xv) above or is entitled to be made pursuant to the first paragraph of this covenant, the Company may, in its sole discretion, classify, and may later reclassify from time to time, such Restricted Payment or any portion thereof into or among any of such applicable provisions.it becomes a
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Restricted Payments. (a) The Company Issuer 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 Issuer's or any of its Restricted Subsidiaries’ ' Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company Issuer or any of its Restricted Subsidiaries) or to the direct or indirect holders of the Company’s Issuer's or any of its Restricted Subsidiaries’ ' Equity Interests in their capacity as such (other than (A) dividends or distributions accrued or payable in Equity Interests (other than Disqualified InterestsStock) of the Company Issuer); provided that the repurchase, redemption or (B) dividends other acquisition or distributions to the Company or retirement for value of any Equity Interests of a Restricted Subsidiary of the Company)shall not constitute a Restricted Payment;
(iiB) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the CompanyIssuer) any Equity Interests of the Company Issuer, Holdings or any other direct or indirect parent of the Company (other than any such Equity Interests owned by the Company or any Restricted Subsidiary of the Company)Issuer;
(iiiC) make any payment on or with respect to, or purchase, repurchase, redeem, defease or otherwise acquire or retire for value any Indebtedness of the Issuer or any Guarantor that is contractually subordinated to the Notes or to any Note Subsidiary Guarantee (other than excluding any intercompany Indebtedness permitted under clause (vi) between or among the Issuer and any of the definition of “Permitted Debt”) its Restricted Subsidiaries), except (ai) a payment of interest or principal at the Stated Maturity thereof or (bii) the purchase, repurchase repurchase, redemption, defeasance or other acquisition or retirement of any such subordinated Indebtedness purchased in anticipation of satisfying a sinking fund obligation, principal installment or payment at final maturity, in each case, due case within one year of the date of such purchase, repurchase repurchase, redemption, defeasance or other acquisitionacquisition or retirement; or
(ivD) make any Restricted Investment Investment; (all such payments and other actions set forth in these clauses (iA) through (ivD) 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 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 Fixed Charge Coverage Ratio test set forth in Section 4.09(a)) of this Indenture; and
(C3) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company Issuer and its Restricted Subsidiaries after August 27, 2012 since the Issue Date (excluding Restricted Payments permitted by clauses (i) (provided that at the time of declaring such dividend, such dividend was counted as a Restricted Payment) (ii2), (iii3), (iv4), (v5), (vi6), (vii7), (viii8), (9), (ix11), (x12), (xi13), (xii14), (xiii15), (xiv16), (17), (18) and (xv19) of Section 4.07(b)), is less than the sum, without duplication, of:
(1A) 50% of the Consolidated Net Income of the Company Issuer for the period (taken as one accounting period) from April 2, 2012 the beginning of the first fiscal quarter commencing after the Issue Date 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
(2B) 100% of the aggregate net proceeds, including the fair market value of any property or Capital Interests, Qualified Proceeds received by the Company Issuer since August 27, 2012 the Issue Date as a contribution to its equity capital (other than Disqualified Stock) or from the issue or sale of Equity Interests of the Company Issuer (other than Disqualified InterestsStock and Excluded Contributions) or from the issue or sale of convertible or exchangeable Disqualified Interests Stock or convertible or exchangeable debt securities of the Company Issuer that have been converted into or exchanged for such Equity Interests (other than Equity Interests (or Disqualified Interests Stock or convertible debt securities) sold to a Subsidiary of the CompanyIssuer), together with ; plus
(C) an amount equal to the aggregate cash and Cash Equivalents received net reduction in Investments by the Company or any of its Restricted Subsidiaries at the time of such conversion or exchange plus the amount by which Indebtedness of the Company Issuer and its Restricted Subsidiaries is reduced upon the conversion or exchange subsequent to August 27, 2012 of any Indebtedness or Disqualified Interests which are convertible into or exchangeable for Qualified Capital Interests of the Company or any of its Restricted Subsidiaries, plus
resulting from (3) 100% of the amount received, including the fair market value of any property received after August 27, 2012 by means of (Ai) the sale or other disposition (other than to the Company Issuer or a Restricted Subsidiary) of any Restricted Investments Investment that was made by after the Company or its Restricted Subsidiaries Issue Date and repurchases (ii) repurchases, redemptions and redemptions repayments of such Restricted Investments and the receipt of any dividends or distributions from the Company or its such Restricted Subsidiaries and repayments of loans or advances which constitute Restricted Investments of the Company or its Restricted Subsidiaries or Investments; plus
(BD) the sale (other than to the Company or a Restricted Subsidiary) of the Capital Interests of an Unrestricted Subsidiary or a distribution from an Unrestricted Subsidiary (other than in each case to the extent the Investment in such that any Unrestricted Subsidiary constituted a Permitted Investment) or a dividend from an Unrestricted Subsidiary, plus
(4) in the case of the redesignation of an Unrestricted Subsidiary Issuer designated as such after the Issue Date is redesignated as a Restricted Subsidiary or after the merger or consolidation of an Unrestricted Subsidiary into the Company or a Restricted Subsidiary or the transfer of assets of an Unrestricted Subsidiary to the Company or a Restricted SubsidiaryIssue Date, the fair market value of the Investment in such Unrestricted Subsidiary (other than an Unrestricted Subsidiary to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment), plus
(5) $141.0 million. The Board of Directors 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 in the Subsidiary so designated will be deemed to be Restricted Payments or Permitted Investments, in the Company’s discretion, at the time of such designation and will reduce the amount available for Restricted Payments or Permitted Investments, as applicable. All such outstanding Investments will be deemed to constitute Investments in an amount equal to the fair market value lesser of (i) the Fair Market Value of the Issuer's interest in such Subsidiary immediately prior to such redesignation and (ii) the aggregate amount of the Issuer's Investments at in such Subsidiary that was previously treated as a Restricted Payment; plus
(E) in the time of such designation. Such designation will only be permitted if such Restricted Payments or Permitted Investments would be permitted at such time and if such event the Issuer and/or any Restricted Subsidiary otherwise meets makes any Investment in a Person that, as a result of or in connection with such Investment, becomes a Restricted Subsidiary, an amount equal to the definition existing Investment of an Unrestricted Subsidiarythe Issuer and/or any of its Restricted Subsidiaries in such Person that was previously treated as a Restricted Payment.
(b) Section 4.07(a) shall not prohibit:
(i1) 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 call for giving of the redemption thereofnotice, as the case may be, if at said the date of declaration or call for notice, the dividend or redemption such payment would have complied with the provisions of this Indenture;
(ii2) the making of any Restricted Payment in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Subsidiary of the CompanyRestricted Subsidiary) of, Equity Interests of the Company Issuer (other than any Disqualified InterestsStock) or from a the substantially concurrent contribution of equity capital to the CompanyIssuer (other than Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such redemption, Restricted Payment shall be excluded from clause (3)(B) of Section 4.07(a);
(3) the repurchase, retirementredemption, defeasance or other acquisition shall be excluded from Section 4.07(a)(C)(2);
(iii) the defeasance, redemption, repurchase, replacement, extension, renewal, refinancing or retirement for value of Indebtedness of the Issuer or other acquisition of any Guarantor that is contractually subordinated Indebtedness to the Notes or Disqualified Interests in exchange for or to any Subsidiary Guarantee with the net cash proceeds from an a substantially concurrent incurrence of Permitted Refinancing Indebtedness, or from the substantially concurrent sale (other than to a Restricted Subsidiary) of, Equity Interests of the Issuer (other than Disqualified Stock) or from the substantially concurrent contribution of equity capital to the Issuer (other than Disqualified Stock); 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);
(iv4) the declarationdeclaration and payment of regularly scheduled or accrued dividends to holders of any class or series of Disqualified Stock of the Issuer or any Restricted Subsidiary of which Disqualified Stock was issued after the Issue Date in accordance with Section 4.09;
(5) the repurchase, redemption or other acquisition or retirement for value of Disqualified Stock of the Issuer or any Restricted Subsidiary made by exchange for, or out of the proceeds of the substantially concurrent sale of Replacement Preferred Stock that is permitted to be incurred pursuant to Section 4.09;
(6) the payment of any dividend (or other distribution any similar distribution) by a Restricted Subsidiary of the Company to the holders of its common Equity Interests on a pro rata basis;
(v7) the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company Issuer or any Restricted Subsidiary of the Company held by any current or former officer, director, employeeemployee or consultant of the Issuer or any of its Restricted Subsidiaries, and any dividend payment or other distribution by the Issuer or a Restricted Subsidiary to Holdings or any other direct or indirect parent holding company of the Issuer utilized for the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of Holdings or such other direct or indirect parent holding company held by any current or former officer, director, employee or consultant or agent of Company the Issuer or any of its Restricted Subsidiaries (or Heirs Holdings or such other permitted transferees thereof) upon deathparent holding company, disabilityin each case, retirementpursuant to any equity subscription agreement, severance or termination of employment or service or in connection with a stock option plan or agreement, shareholders agreement, shareholders' agreement or similar agreement, agreement or benefit plan or arrangement, including amendments theretoof any kind; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may not exceed: (A) exceed $10.0 5.0 million in any calendar yearfiscal year (it being understood, with however, that unused amounts being permitted to be paid pursuant to this proviso are available to be used in any later calendar yearcarried over to subsequent fiscal years); provided further that such amount in any calendar fiscal year may be increased in by an amount not to exceed exceed:
(A) the net cash proceeds from the sale of Equity Interests of the Issuer and, to the extent contributed to the Issuer as equity capital (other than Disqualified Interests) Stock), Equity Interests of Holdings or any other direct or indirect parent company of the Company Issuer, in each case to any officermembers of management, director, employee directors or agent consultants of the Company Issuer, any of its Subsidiaries, Holdings or any Subsidiary other direct or indirect parent company of the Company Issuer that occurs after the date of this IndentureIssue Date, to the extent such net the cash proceeds from the sale of such Equity Interests have not otherwise been applied to make the payment of Restricted Payments pursuant to by virtue of clause (3)(B) of Section 4.07(a)(C)(24.07(a); plus , and excluding Excluded Contributions, plus
(B) the cash proceeds of key man life insurance policies received by the Company Issuer and its Restricted Subsidiaries after the date Issue Date, less
(C) the amount of any Restricted Payments previously made pursuant to clauses (A) and (B) of this Indenture that are used for the repurchase, redemption or other acquisition or retirement for value owned by the individual clause (or such individual’s estate) that is the subject of such insurance7);
(vi) 8) the repurchase of Equity Interests deemed to occur upon the exercise of options, rights or warrants or other convertible securities to the extent such Equity Interests represent a portion of the exercise price of those options, warrants rights or other convertible securities and cash payments in lieu of the issuance of fractional shares in connection with the exercise of options, warrants, or other convertible securities;
(vii) the declaration and payment of regular quarterly dividends on the Company’s Equity Interests in accordance with past practice and not to exceed $0.05 per share;
(viii) additional Restricted Payments not to exceed $150.0 million after August 27, 2012;
(ix) the repurchase of the Company’s Equity Interests in an amount not to exceed $50.0 million after August 27, 2012;
(x) distributions or payments of Securitization Fees and purchases of Securitization Assets pursuant to a Securitization Repurchase Obligation in connection with a Qualified Securitization Financing;
(xi) any payments made in connection with the consummation of the transactions on substantially the terms described in the Offering Memorandum;
(xii) the payment of intercompany subordinated debt, the incurrence of which was permitted under Section 4.09(b)(vi);
(xiii) the purchase of fractional shares by the Company upon conversion of any securities of the Company into Capital Interests of the Company;
(xiv9) the repurchase, redemption redemption, defeasance or other acquisition or retirement for value of Indebtedness of the Issuer or any Guarantor that is contractually subordinated Indebtedness or Disqualified Interests pursuant to the provisions similar Notes or to those described under Section 4.14 and Section 4.10; provided any Subsidiary Guarantee with any Excess Proceeds that all Notes tendered by Holders remain after consummation of the Notes in connection with the related Change of Control Offer or an Asset Sale Offer, as applicable, have been repurchased, redeemed or acquired for value in full; and
(xv) payment of dividends on Disqualified Interests of the Company or a Restricted Subsidiary, the issuance of which is permitted by this Indenture.
(c) 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 Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall be determined by an officer of the Company. In the event that a Restricted Payment meets the criteria of more than one of the exceptions described in (i) through (xv) above or is entitled to be made pursuant to the first paragraph of this covenant, the Company may, in its sole discretion, classify, and may later reclassify from time to time, such Restricted Payment or any portion thereof into or among any of such applicable provisions.;
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:
(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, 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 (A) dividends or distributions accrued or payable in Equity Interests (other than Disqualified InterestsStock) of the Company or (B) and other than dividends or distributions payable to the Company or a Restricted Subsidiary of the Company);
(ii2) purchase, redeem repurchase, redeem, defease 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 the Company (Company, in each case held by Persons other than any such Equity Interests owned by the Company or any a Restricted Subsidiary of the Company);
(iii3) make any principal payment on or with respect to, or purchase, repurchase, redeem, defease or otherwise acquire or retire for value any Subordinated Indebtedness that is subordinated to the Notes or any Note Guarantee (other than Indebtedness permitted under clause (vi) of the definition of “Permitted Debt”) except (a) a payment of interest or principal at Stated Maturity or (b) the payment, purchase, repurchase repurchase, redemption, defeasance, acquisition or other acquisition retirement of any such (i) intercompany Indebtedness between or among the Company and its Restricted Subsidiaries, and (ii) Subordinated Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturitymaturity thereof, in each case, case due within one year of the date of such payment, purchase, repurchase repurchase, redemption, defeasance, acquisition or other acquisitionretirement); or
(iv4) make any Restricted Investment (all such payments and other actions set forth in clauses (i1) through (iv4) 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 Fixed Charge Coverage Ratio test set forth in Section 4.09(a); and
(C3) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after August 27, 2012 the Issue Date (excluding Restricted Payments permitted by clauses clause (i) (provided that at the time of declaring such dividend, such dividend was counted as a Restricted Payment) (ii2), (iii3), (iv4), (v5), (vi6), (vii7), (viii8), (9), (ix10), (x11), (xi12), (xii13), (xiii14), (xiv15), (16) and or (xv17) of Section 4.07(b)), is less than the sum, without duplication, of:
(1A) 50100% of the cumulative Consolidated Net Income Cash Flow (excluding the amount of any dividends or distributions included in the calculation of Consolidated Cash Flow to the extent the Company elects to include such dividends or distributions in clause (14)(b) or 20(b) of the definition of “Permitted Investments” in accordance with such clause) of the Company for the period (taken as one accounting period) from April 2commencing on the first day of the fiscal quarter in which the Issue Date occurs, 2012 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 minus 1.5 times the Fixed Charges of the Company for the same period (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficittaken as one accounting period), plus
(2B) 100% of the aggregate net proceeds, proceeds (including the fair market value of any property or Capital Interests, other than cash) received by the Company since August 27(other than any net proceeds or assets received in connection with the contribution of assets pursuant to the Separation Agreement) after the Issue Date, 2012 as a contribution to its common equity capital or from the issue or sale (other than to a Subsidiary of the Company) of:
(i) Equity Interests of the Company (other than Disqualified InterestsStock or Designated Preferred Stock) or from of the issue or sale of Company; or
(ii) Disqualified Interests Stock, Designated Preferred Stock or debt securities of the Company that in each case have been converted into such or exchanged for Equity Interests (other than Disqualified Stock or Designated Preferred Stock) of the Company, plus
(C) 100% of the fair market value as of the date of issuance of any Equity Interests (or other than Disqualified Interests or convertible debt securitiesStock) sold to a Subsidiary of issued since the Company)Issue Date, together with by the aggregate cash and Cash Equivalents received Company as consideration for the purchase by the Company or any of its Restricted Subsidiaries at the time of such conversion all or exchange plus the amount by which Indebtedness substantially all of the Company and its Restricted Subsidiaries is reduced upon the conversion assets of, or exchange subsequent to August 27, 2012 of any Indebtedness or Disqualified Interests which are convertible into or exchangeable for Qualified Capital Interests a majority of the Company Voting Stock of, a Related Business (including by means of a merger, consolidation or any of its Restricted Subsidiaries, other business combination permitted under this Indenture); plus
(3D) to the extent that any Restricted Investment that was made after the Issue Date is sold for cash or other property or otherwise liquidated or repaid for cash, the lesser of (x) the cash return of capital with respect to such Restricted Investment or the fair market value of such other property (less the cost of disposition, if any) and (y) the initial amount of such Restricted Investment; plus
(E) 100% of the amount received, aggregate net proceeds (including the fair market value of any property received after August 27, 2012 by means of (A) the sale or other disposition (other than to the Company or a Restricted Subsidiarycash) of Restricted Investments made received by the Company or its any Restricted Subsidiaries and repurchases and redemptions of such Restricted Investments Subsidiary from the Company any distribution or its Restricted Subsidiaries and repayments of loans or advances which constitute Restricted Investments of the Company or its Restricted Subsidiaries or (B) the sale dividend (other than to the Company or a Restricted Subsidiaryreturn of capital) of the Capital Interests of an Unrestricted Subsidiary or a distribution from an Unrestricted Subsidiary (other than in each case except to the extent any such amount has already been included in the Investment in such Unrestricted Subsidiary constituted a Permitted Investment) or a dividend from an Unrestricted Subsidiary, calculation of Consolidated Cash Flow); plus
(4F) in the case of the upon redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary or upon the merger or consolidation of an Unrestricted Subsidiary with or into the Company or a any of its Restricted Subsidiary or Subsidiaries, the transfer lesser of assets of an Unrestricted Subsidiary to the Company or a Restricted Subsidiary, (x) the fair market value of the Company’s Investment in such Unrestricted Subsidiary as of the date of redesignation and (other than y) such fair market value as of the date such Subsidiary was originally designated as an Unrestricted Subsidiary to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment), Subsidiary; plus
(5G) $141.0 2,782 million. The Board of Directors 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 in the Subsidiary so designated will be deemed to be Restricted Payments or Permitted Investments, in the Company’s discretion, at the time of such designation and will reduce the amount available for Restricted Payments or Permitted Investments, as applicable. 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 Payments or Permitted Investments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary.
(b) The provisions of Section 4.07(a) shall will not prohibit:
(i1) the payment of any dividend or other distribution or consummation of any irrevocable redemption within 60 90 days after the date of declaration thereof or call for the giving of any redemption thereofnotice related thereto, if at said date of declaration or call for redemption notice such payment would have complied with the provisions of this Indenture;
(ii2) the making of any Restricted 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, Equity Interests of the Company (other than any Disqualified InterestsStock) or from a the contribution of common equity capital to the CompanyCompany within 10 Business Days; provided that the amount of any such net cash proceeds that are utilized for any such Restricted Payment shall be excluded from clause (3)(B) of Section 4.07(a);
(3) the redemption, repurchase, retirement, defeasance or other acquisition shall be excluded from Section 4.07(a)(C)(2);
(iii) the defeasance, redemption, repurchase, replacement, extension, renewal, refinancing or retirement or other acquisition for value of subordinated Subordinated Indebtedness or Disqualified Interests in exchange for Stock of the Company or any of its Restricted Subsidiaries with the net cash proceeds from an a substantially concurrent (i) incurrence of Permitted Refinancing IndebtednessIndebtedness or (ii) issuance of Disqualified Stock permitted to be issued under this Indenture;
(iv4) the declaration, or payment of any dividend (or, in the case of any partnership, limited liability company or other distribution business entity, any similar distribution) by a Restricted Subsidiary of the Company to the holders of its common Equity Interests on a pro rata basis;
(v5) 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 current or former officer, directormanager, employee, consultant director or agent employee of the Company (or any of its Restricted Subsidiaries (or Heirs Subsidiaries) pursuant to any equity subscription agreement, stock option agreement, employment agreement, severance agreement or other permitted transferees thereof) upon death, disability, retirement, severance executive compensation arrangement or termination of employment any other management or service or in connection with a stock option employee benefit plan or agreement, shareholders agreement, shareholders’ agreement or similar agreement, plan or arrangement, including amendments thereto; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may shall not exceed: exceed $25.0 million in any calendar year (A) with unused amounts in any calendar year being carried over to subsequent calendar years; provided that the aggregate purchase price for all such repurchased, redeemed, acquired or retired Equity Interests shall not exceed $10.0 40.0 million in any calendar year); and provided, with unused amounts being available to be used in any later calendar year; provided further, that such amount in any calendar year may be increased in by an amount not to exceed the net cash proceeds received by the Company from the sale sales of Equity Interests (other than Disqualified InterestsStock) of the Company to any officerofficers, directormanagers, employee directors or agent employees of the Company or any of its Restricted Subsidiaries that occur after the Issue Date (provided that the amount of such cash proceeds used for any such repurchase, redemption, acquisition or retirement will not increase the amount available for Restricted Payments under clause (3)(B) of Section 4.07(a); and provided, further, that the Company may elect to apply all or any portion of the aggregate increase contemplated by this proviso in any calendar year); and provided, further, that cancellation of Indebtedness owing to the Company from members of management of the Company or any Restricted Subsidiary of the Company that occurs after the date in connection with a repurchase of this Indenture, to the extent such net cash proceeds have not otherwise been applied to make Restricted Payments pursuant to Section 4.07(a)(C)(2); plus (B) the cash proceeds Equity Interests of key man life insurance policies received by the Company and its will not be deemed to constitute a Restricted Subsidiaries after the date of this Indenture that are used for the repurchase, redemption or other acquisition or retirement for value owned by the individual (or such individual’s estate) that is the subject of such insurancePayment;
(vi6) the repurchase of Equity Interests deemed to occur (i) upon the exercise of options, warrants or other convertible securities stock options to the extent such Equity Interests represent a portion of the exercise price of those options, warrants stock options and (ii) in connection with the withholding of a portion of the Equity Interests granted or other convertible securities and cash awarded to a director or an employee to pay for the taxes payable by such director or employee upon such grant or award;
(7) payments to holders of the Company’s capital stock in lieu of the issuance of fractional shares in connection with the exercise of options, warrants, or other convertible securitiesits Capital Stock;
(vii) 8) the declaration and payment redemption, repurchase, retirement, defeasance or other acquisition of regular quarterly dividends on Disqualified Stock of the Company in exchange for Disqualified Stock of the Company or with the net cash proceeds from a substantially concurrent issuance of Disqualified Stock by the Company’s Equity Interests , in accordance with past practice and not each case that is permitted to exceed $0.05 per sharebe issued as described under Section 4.09;
(viii) additional Restricted Payments not to exceed $150.0 million after August 27, 2012;
(ix) the repurchase of the Company’s Equity Interests in an amount not to exceed $50.0 million after August 27, 2012;
(x) distributions or payments of Securitization Fees and purchases of Securitization Assets pursuant to a Securitization Repurchase Obligation in connection with a Qualified Securitization Financing;
(xi) any payments made in connection with the consummation of the transactions on substantially the terms described in the Offering Memorandum;
(xii) the payment of intercompany subordinated debt, the incurrence of which was permitted under Section 4.09(b)(vi);
(xiii) the purchase of fractional shares by the Company upon conversion of any securities of the Company into Capital Interests of the Company;
(xiv9) the repurchase, redemption or other acquisition or retirement for value of subordinated any Subordinated Indebtedness or Disqualified Interests pursuant to in accordance with the provisions similar to those described under Section 4.14 Sections 4.10 and Section 4.10; 4.14, provided that all Notes validly tendered by Holders of the Notes in connection with the related a Change of Control Offer or Asset Sale Net Proceeds Offer, as applicable, have been repurchased, redeemed or acquired for value;
(10) the declaration and payment of dividends to holders of any class or series of Disqualified Stock of the Company or any of its Restricted Subsidiaries or any class or series of Preferred Stock of a Restricted Subsidiary issued in accordance with Section 4.09 to the extent such dividends are included in the definition of “Fixed Charges”;
(11) the declaration and payment of dividends to holders of any class or series of Designated Preferred Stock of the Company;
(12) [Reserved];
(13) payments or distributions to satisfy dissenters’ rights, pursuant to or in connection with a consolidation, merger or transfer of assets that complies with the provisions of this Indenture applicable to mergers, consolidations and transfers of all or substantially all of the property and assets of the Company;
(14) the purchase, redemption, acquisition, cancellation or other retirement for a nominal value per right of any rights granted to all of the holders of Common Stock of the Company pursuant to any shareholders’ rights plan adopted for the purpose of protecting shareholders from unfair takeover tactics; provided that any such purchase, redemption, acquisition, cancellation or other retirement of such rights is not for the purpose of evading the limitations of this Section 4.07 (all as determined in fullgood faith by a senior financial officer of the Company);
(15) Restricted Payments in an aggregate amount under this clause (15) at any time outstanding not to exceed the greater of $300.0 million and 4.0% of Consolidated Total Assets (determined as of the date of any Restricted Payment pursuant to this clause (15));
(16) Restricted Payments in an aggregate amount in any fiscal year not to exceed an amount equal to 6.0% of the Market Capitalization; provided, that at least one class of the Company’s Common Stock has been listed on The New York Stock Exchange (or, if the primary listing of such Common Stock is on another exchange, on such other exchange) for the 30 consecutive trading days immediately preceding the date of such Restricted Payment; and
(xv17) payment of dividends on Disqualified Interests other Restricted Payments so long as the Consolidated Leverage Ratio, calculated as of the Company or a date of such Restricted SubsidiaryPayment and after giving pro forma effect thereto (including, without limitation, to the issuance incurrence of which is permitted by this Indenture.
any Indebtedness to finance such Restricted Payment), does not exceed 4.0 to 1.0; provided that in the case of clauses (c5), (13), (16) and (17) no Default shall have occurred and be continuing. 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 For purposes of any non-cash Restricted Payment shall be determined by an officer of the Company. In determining compliance with this Section 4.07, in the event that a Restricted Payment meets the criteria of more than one of the exceptions described in clauses (i1) through (xv17) above or is entitled to be made pursuant to the first paragraph of this covenantSection 4.07(a), the Company maywill be permitted, in its sole discretion, classifyto classify the Restricted Payment, and may or later reclassify from time to time, such the Restricted Payment in whole or in part, in any portion thereof into manner that complies with this Section 4.07. For avoidance of doubt, nothing in this Indenture will restrict the repurchase, redemption, defeasance or among other acquisition or retirement for value of the Notes, the 5.00% Notes, the 5.50% Notes, the 5.625% Notes, the 5.75% Notes or the 8.00% Notes, including any of such applicable provisionscall premium paid in connection therewith.
Appears in 1 contract
Samples: Indenture (Post Holdings, Inc.)
Restricted Payments. (a) The Company shall Borrower 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 (i) the Borrower may declare or and pay any dividend or make any other payment or distribution on account of the Company’s or any dividends with respect to its common stock payable solely in additional shares of its Restricted Subsidiaries’ Equity Interests (includingcommon stock, 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 (A) dividends or distributions accrued or payable in Equity Interests (other than Disqualified Interests) of the Company or (B) 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 the Company (other than any such Equity Interests owned by the Company or any Restricted Subsidiary of the Company);
may declare and pay dividends ratably to its equity holders and (iii) the Borrower may make any payment on Restricted Payments pursuant to and in accordance with stock option plans or with respect to, other benefit plans for management or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness that is subordinated to the Notes or any Note Guarantee (other than Indebtedness permitted under clause (vi) employees of the definition of “Permitted Debt”) except (a) a payment of interest or principal at Stated Maturity or (b) Borrower and the purchase, repurchase or other acquisition of any such Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case, due within one year of the date of such purchase, repurchase or other acquisition; or
(iv) make any Restricted Investment (all such payments and other actions set forth in clauses (i) through (iv) above being collectively referred to as “Restricted Payments”), unless, at the time of and after giving effect to such Restricted Payment:
(A) no 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 Fixed Charge Coverage Ratio test set forth in Section 4.09(a); and
(C) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after August 27, 2012 (excluding Restricted Payments permitted by clauses (i) (provided that at the time of declaring such dividend, such dividend was counted as a Restricted Payment) (ii), (iii), (iv), (v), (vi), (vii), (viii), (ix), (x), (xi), (xii), (xiii), (xiv) and (xv) of Section 4.07(b)), is less than the sum, without duplication, of
(1) 50% of the Consolidated Net Income of the Company for the period (taken as one accounting period) from April 2, 2012 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
(2) 100% of the aggregate net proceeds, including the fair market value of any property or Capital Interests, received by the Company since August 27, 2012 as a contribution to its equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified Interests) or from the issue or sale of Disqualified Interests or debt securities of the Company that have been converted into such Equity Interests (other than Equity Interests (or Disqualified Interests or convertible debt securities) sold to a Subsidiary of the Company), together with the aggregate cash and Cash Equivalents received by the Company or any of its Restricted Subsidiaries at the time of such conversion or exchange plus the amount by which Indebtedness of the Company and its Restricted Subsidiaries is reduced upon the conversion or exchange subsequent to August 27, 2012 of any Indebtedness or Disqualified Interests which are convertible into or exchangeable for Qualified Capital Interests of the Company or any of its Restricted Subsidiaries, plus
(3) 100% of the amount received, including the fair market value of any property received after August 27, 2012 by means of (A) the sale or other disposition (other than to the Company or a Restricted Subsidiary) of Restricted Investments made by the Company or its Restricted Subsidiaries and repurchases and redemptions of such Restricted Investments from the Company or its Restricted Subsidiaries and repayments of loans or advances which constitute Restricted Investments of the Company or its Restricted Subsidiaries or (B) the sale (other than to the Company or a Restricted Subsidiary) of the Capital Interests of an Unrestricted Subsidiary or a distribution from an Unrestricted Subsidiary (other than in each case to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment) or a dividend from an Unrestricted Subsidiary, plus
(4) in the case of the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary or the merger or consolidation of an Unrestricted Subsidiary into the Company or a Restricted Subsidiary or the transfer of assets of an Unrestricted Subsidiary to the Company or a Restricted Subsidiary, the fair market value of the Investment in such Unrestricted Subsidiary (other than an Unrestricted Subsidiary to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment), plus
(5) $141.0 million. The Board of Directors 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 in the Subsidiary so designated will be deemed to be Restricted Payments or Permitted Investments, in the Company’s discretion, at the time of such designation and will reduce the amount available for Restricted Payments or Permitted Investments, as applicable. 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 Payments or Permitted Investments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary.
(b) Section 4.07(aThe Borrower will not, and will not permit any Subsidiary to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) shall not prohibit:
of or in respect of principal of or interest on any Indebtedness, or any payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any Indebtedness, except (i) the payment of any dividend or other distribution or redemption within 60 days after Indebtedness created under the date of declaration or call for redemption thereof, if at said date of declaration or call for redemption such payment would have complied with the provisions of this Indenture;
Loan Documents; (ii) the making so long as no Default shall have occurred or would result therefrom, payment of regularly scheduled interest and principal payments as and when due in respect of any Restricted Payment in exchange for, or out of the net cash proceeds of the substantially concurrent sale Indebtedness (other than subject to a Subsidiary of the Company) of, Equity Interests of the Company (other than any Disqualified Interests) or from a contribution of capital to the Companysubordination provisions thereof); 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 Section 4.07(a)(C)(2);
(iii) prepayment at the defeasance, redemption, repurchase, replacement, extension, renewal, refinancing or retirement or other acquisition consummation of subordinated any Permitted Acquisition of Indebtedness or Disqualified Interests assumed in exchange for or connection with the net cash proceeds from an incurrence of such Permitted Refinancing Indebtedness;
Acquisition; and (iv) the declaration, or payment of any dividend or other distribution by secured Indebtedness that becomes due as a Subsidiary result of the Company to the holders of its common Equity Interests on a pro rata basis;
(v) the repurchase, redemption voluntary sale or other acquisition or retirement for value of any Equity Interests transfer of the Company property or any Subsidiary of the Company held by any current or former officer, director, employee, consultant or agent of Company or any of its Restricted Subsidiaries (or Heirs or other permitted transferees thereof) upon death, disability, retirement, severance or termination of employment or service or in connection with a stock option plan or agreement, shareholders agreement, or similar agreement, plan or arrangement, including amendments thereto; provided that the aggregate price paid for all assets securing such repurchased, redeemed, acquired or retired Equity Interests may not exceed: (A) $10.0 million in any calendar year, with unused amounts being available to be used in any later calendar year; provided that such amount in any calendar year may be increased in an amount not to exceed the net cash proceeds from the sale of Equity Interests (other than Disqualified Interests) of the Company to any officer, director, employee or agent of the Company or any Subsidiary of the Company that occurs after the date of this Indenture, to the extent such net cash proceeds have not Indebtedness and otherwise been applied to make Restricted Payments pursuant to Section 4.07(a)(C)(2); plus (B) the cash proceeds of key man life insurance policies received by the Company and its Restricted Subsidiaries after the date of this Indenture that are used for the repurchase, redemption or other acquisition or retirement for value owned by the individual (or such individual’s estate) that is the subject of such insurance;
(vi) the repurchase of Equity Interests deemed to occur upon the exercise of options, warrants or other convertible securities to the extent such Equity Interests represent a portion of the exercise price of those options, warrants or other convertible securities and cash payments in lieu of the issuance of fractional shares in connection with the exercise of options, warrants, or other convertible securities;
(vii) the declaration and payment of regular quarterly dividends on the Company’s Equity Interests in accordance with past practice and not to exceed $0.05 per share;
(viii) additional Restricted Payments not to exceed $150.0 million after August 27, 2012;
(ix) the repurchase of the Company’s Equity Interests in an amount not to exceed $50.0 million after August 27, 2012;
(x) distributions or payments of Securitization Fees and purchases of Securitization Assets pursuant to a Securitization Repurchase Obligation in connection with a Qualified Securitization Financing;
(xi) any payments made in connection with the consummation of the transactions on substantially the terms described in the Offering Memorandum;
(xii) the payment of intercompany subordinated debt, the incurrence of which was permitted under Section 4.09(b)(vi);
(xiii) the purchase of fractional shares by the Company upon conversion of any securities of the Company into Capital Interests of the Company;
(xiv) the repurchase, redemption or other acquisition or retirement for value of subordinated Indebtedness or Disqualified Interests pursuant to the provisions similar to those described under Section 4.14 and Section 4.10; provided that all Notes tendered by Holders of the Notes in connection with the related Change of Control Offer or Asset Sale Offer, as applicable, have been repurchased, redeemed or acquired for value in full; and
(xv) payment of dividends on Disqualified Interests of the Company or a Restricted Subsidiary, the issuance of which is permitted by this IndentureLoan Documents.
(c) 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 Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall be determined by an officer of the Company. In the event that a Restricted Payment meets the criteria of more than one of the exceptions described in (i) through (xv) above or is entitled to be made pursuant to the first paragraph of this covenant, the Company may, in its sole discretion, classify, and may later reclassify from time to time, such Restricted Payment or any portion thereof into or among any of such applicable provisions.
Appears in 1 contract
Samples: Credit Agreement (Jupitermedia Corp)
Restricted Payments. (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly:
(i) declare Declare or pay any dividend on, or make any other payment or distribution on account of of, or set apart assets for a sinking or other analogous fund for, 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 (A) dividends or distributions accrued or payable in Equity Interests (other than Disqualified Interests) of the Company or (B) dividends or distributions to the Company or a Restricted Subsidiary of the Company);
(ii) purchase, redeem redemption, defeasance, retirement, cancellation, termination or otherwise acquire or retire for value (includingother acquisition of, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company Parent, Holdings, the Borrower or any Subsidiary, 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 the Parent, Holdings, the Borrower or any Restricted Subsidiary, or enter into any derivatives or other transaction with any financial institution, commodities or stock exchange or clearinghouse (a “Derivatives Counterparty”), obligating the Parent, Holdings the Borrower or any Restricted Subsidiary to make payments to such Derivatives Counterparty as a result of any change in market value of any such Equity Interests (collectively, “Restricted Payments”), except that:
(a) any Subsidiary may make Restricted Payments, directly or indirectly, to the Borrower;
(b) Non-Guarantor Subsidiaries may make Restricted Payments to other Non-Guarantor Subsidiaries or to any Loan Party;
(c) the Loan Parties and each Subsidiary may declare and make dividend payments or other distributions payable solely in the common stock or other common Equity Interests of such Person;
(d) the Borrower and its Subsidiaries may declare and make dividend or distribution payments, directly or indirectly, to Holdings (and Holdings may pay to any direct or indirect parent company of Holdings) to permit Holdings (or any such direct or indirect parent company of Holdings, as applicable) to pay for any taxable period for which Holdings, the Borrower or such applicable Subsidiary, as applicable, was a member of a consolidated, combined or similar income tax group for federal and/or applicable state or local income tax purposes or are entities treated as disregarded from any member of such a group for U.S. federal income and, if applicable, state income Tax purposes (a “Tax Group”) of which Holdings (or any direct or indirect parent company of Holdings, as applicable) is the Company common parent, any consolidated, combined or similar income Taxes of such Tax Group that are due and payable by Holdings (other than any or such Equity Interests owned by the Company direct or any Restricted Subsidiary indirect parent company of the Company);
(iiiHoldings) make any payment on or with respect tofor such taxable period, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness that is subordinated but only to the Notes or any Note Guarantee extent such income Taxes are attributable to the Borrower and its Subsidiaries; provided that (other than Indebtedness permitted under clause (vi) of the definition of “Permitted Debt”) except (a) a payment of interest or principal at Stated Maturity or (bx) the purchase, repurchase or other acquisition of any such Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case, due within one year of the date amount of such purchase, repurchase dividends or other acquisition; or
(iv) make distributions for any Restricted Investment (all such payments and other actions set forth in clauses (i) through (iv) above being collectively referred to as “Restricted Payments”), unless, at taxable period shall not exceed the time of and after giving effect to such Restricted Payment:
(A) no Event of Default shall have occurred and be continuing or would occur as a consequence thereof;
(B) the Company would, at the time amount of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at income Taxes that 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 Section 4.09(a); and
(C) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company Borrower and its Restricted relevant Subsidiaries after August 27, 2012 would have paid had the Borrower and such Subsidiaries been a stand-alone corporate taxpayer (excluding Restricted Payments permitted by clauses (i) (provided that at the time of declaring such dividend, such dividend was counted as or a Restricted Payment) (ii), (iii), (iv), (v), (vi), (vii), (viii), (ix), (x), (xi), (xii), (xiii), (xivstand-alone corporate Tax Group) and (xvy) dividends or distributions in respect of Section 4.07(b)), is less than an Unrestricted Subsidiary shall be permitted only to the sum, without duplication, of
(1) 50% extent that dividends or distributions were made by such Unrestricted Subsidiary to a member of the Consolidated Net Income of the Company for the period (taken as one accounting period) from April 2, 2012 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
(2) 100% of the aggregate net proceeds, including the fair market value of any property or Capital Interests, received by the Company since August 27, 2012 as a contribution to its equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified Interests) or from the issue or sale of Disqualified Interests or debt securities of the Company that have been converted into such Equity Interests (other than Equity Interests (or Disqualified Interests or convertible debt securities) sold to a Subsidiary of the Company), together with the aggregate cash and Cash Equivalents received by the Company Tax Group or any of its Restricted Subsidiaries at the time of for such conversion or exchange plus the amount by which Indebtedness of the Company and its Restricted Subsidiaries is reduced upon the conversion or exchange subsequent to August 27, 2012 of any Indebtedness or Disqualified Interests which are convertible into or exchangeable for Qualified Capital Interests of the Company or any of its Restricted Subsidiaries, plus
(3) 100% of the amount received, including the fair market value of any property received after August 27, 2012 by means of (A) the sale or other disposition (other than to the Company or a Restricted Subsidiary) of Restricted Investments made by the Company or its Restricted Subsidiaries and repurchases and redemptions of such Restricted Investments from the Company or its Restricted Subsidiaries and repayments of loans or advances which constitute Restricted Investments of the Company or its Restricted Subsidiaries or (B) the sale (other than to the Company or a Restricted Subsidiary) of the Capital Interests of an Unrestricted Subsidiary or a distribution from an Unrestricted Subsidiary (other than in each case to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment) or a dividend from an Unrestricted Subsidiary, plus
(4) in the case of the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary or the merger or consolidation of an Unrestricted Subsidiary into the Company or a Restricted Subsidiary or the transfer of assets of an Unrestricted Subsidiary to the Company or a Restricted Subsidiary, the fair market value of the Investment in such Unrestricted Subsidiary (other than an Unrestricted Subsidiary to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment), plus
(5) $141.0 million. The Board of Directors 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 in the Subsidiary so designated will be deemed to be Restricted Payments or Permitted Investments, in the Company’s discretion, at the time of such designation and will reduce the amount available for Restricted Payments or Permitted Investments, as applicable. 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 Payments or Permitted Investments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary.
(b) Section 4.07(a) shall not prohibit:
(i) the payment of any dividend or other distribution or redemption within 60 days after the date of declaration or call for redemption thereof, if at said date of declaration or call for redemption such payment would have complied with the provisions of this Indenturepurpose;
(iie) the making of any Borrower may make other Restricted Payment Payments to Holdings who, in exchange forturn, or out of the net cash proceeds of the substantially concurrent sale (may make other than to a Subsidiary of the Company) of, Equity Interests of the Company (other than any Disqualified Interests) or from a contribution of capital Restricted Payments to the Company; provided that Parent to permit 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 Section 4.07(a)(C)(2)Parent to make payments required under the Tax Receivable Agreement;
(iiif) except during the defeasanceAccommodation Period, redemptionthe Borrower may make other Restricted Payments to Holdings who, repurchasein turn, replacement, extension, renewal, refinancing or retirement or may make other acquisition of subordinated Indebtedness or Disqualified Interests in exchange for or with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness;
(iv) the declaration, or payment of any dividend or other distribution by a Subsidiary of the Company Restricted Payments to the holders of its common Equity Interests on a pro rata basis;
(v) the repurchaseParent who, redemption or in turn, may make other acquisition or retirement for value of any Equity Interests of the Company or any Subsidiary of the Company held by any current or former officer, director, employee, consultant or agent of Company or any of its Restricted Subsidiaries (or Heirs or other permitted transferees thereof) upon death, disability, retirement, severance or termination of employment or service or in connection with a stock option plan or agreement, shareholders agreement, or similar agreement, plan or arrangement, including amendments thereto; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may not exceed: (A) $10.0 million in any calendar year, with unused amounts being available to be used in any later calendar year; provided that such amount in any calendar year may be increased in an amount not to exceed the net cash proceeds from the sale of Equity Interests (other than Disqualified Interests) of the Company to any officer, director, employee or agent of the Company or any Subsidiary of the Company that occurs after the date of this Indenture, to the extent such net cash proceeds have not otherwise been applied to make Restricted Payments pursuant to Section 4.07(a)(C)(2); plus (B) the cash proceeds of key man life insurance policies received by the Company and its Restricted Subsidiaries after the date of this Indenture that are used for the repurchase, redemption or other acquisition or retirement for value owned by the individual (or such individual’s estate) that is the subject of such insurance;
(vi) the repurchase of Equity Interests deemed to occur upon the exercise of options, warrants or other convertible securities to the extent such Equity Interests represent a portion of the exercise price of those options, warrants or other convertible securities and cash payments in lieu of the issuance of fractional shares in connection with the exercise of options, warrants, or other convertible securities;
(vii) the declaration and payment of regular quarterly dividends on the Company’s Equity Interests in accordance with past practice and not to exceed $0.05 per share;
(viii) additional Restricted Payments not to exceed $150.0 million after August 27, 2012;
(ix) the repurchase of the Company’s Equity Interests in an amount not to exceed $50.0 million after August 27, 2012;
(x) distributions or payments of Securitization Fees and purchases of Securitization Assets pursuant to a Securitization Repurchase Obligation in connection with a Qualified Securitization Financing;
(xi) any payments made in connection with the consummation of the transactions on substantially the terms described in the Offering Memorandum;
(xii) the payment of intercompany subordinated debt, the incurrence of which was permitted under Section 4.09(b)(vi);
(xiii) the purchase of fractional shares by the Company upon conversion of any securities of the Company into Capital Interests of the Company;
(xiv) the repurchase, redemption or other acquisition or retirement for value of subordinated Indebtedness or Disqualified Interests pursuant to the provisions similar to those described under Section 4.14 and Section 4.10; provided that all Notes tendered by Holders of the Notes in connection with the related Change of Control Offer or Asset Sale Offer, as applicable, have been repurchased, redeemed or acquired for value in full; and
(xv) payment of dividends on Disqualified Interests of the Company or a Restricted Subsidiary, the issuance of which is permitted by this Indenture.
(c) 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 Subsidiary, stockholders so long as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted ABL Payment shall be determined by an officer of the Company. In the event that a Restricted Payment meets the criteria of more than one of the exceptions described in (i) through (xv) above or is entitled to be made pursuant to the first paragraph of this covenant, the Company may, in its sole discretion, classify, and may later reclassify from time to time, such Restricted Payment or any portion thereof into or among any of such applicable provisions.Conditions are satisfied;
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 (including, without limitation, any payment in connection with any merger merger, amalgamation 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 (A) dividends or distributions accrued or payable in Equity Interests (other than Disqualified InterestsStock) of the Company or (B) and other than dividends or distributions 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 Person owning more than 50% of the Company (other than any such outstanding Equity Interests owned by the Company or any Restricted Subsidiary of the Company);
(iii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness of the Company or any Subsidiary Guarantor that is contractually subordinated to the Notes or to the Notation of Guaranty (excluding any Note Guarantee (other than intercompany Indebtedness permitted under clause (vi) between or among the Company and any of the definition of “Permitted Debt”) its Restricted Subsidiaries), except (a) a payment of interest or principal at the Stated Maturity or (b) the purchase, repurchase or other acquisition of any such Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case, due within one year of the date of such purchase, repurchase or other acquisitionthereof; or
(iv) make any Restricted Investment (all such payments and other actions set forth in these clauses (i) through (iv) 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 Fixed Charge Coverage Ratio test set forth in Section 4.09(a)10.2(a) hereof; and
(C3) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after August 27since April 12, 2012 2013 (excluding Restricted Payments permitted by clauses (i) (provided that at the time of declaring such dividend, such dividend was counted as a Restricted Payment) (ii2), (iii3), (iv4), (v5), (vi6), (vii7), (viii)8), (ix), (x), (xi), (xii), (xiii), (xiv9) and (xv13) of paragraph (b) of this Section 4.07(b)10.1), is less than the sum, without duplication, of:
(1A) 50% of the Consolidated Net Income of the Company for the period (taken as one accounting period) from the beginning of the first fiscal quarter commencing after April 212, 2012 2013 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
(2B) 100% of the aggregate net proceedscash proceeds and the Fair Market Value, including as determined in good faith by the fair market value Board of any Directors of the Company, of property or Capital Interests, and marketable securities received by the Company since August 27April 12, 2012 2013 as a contribution to its common equity capital or from the issue or sale of Qualifying Equity Interests of the Company (other than Disqualified Interestsin connection with the Aurizon Transaction) or from the issue or sale of convertible or exchangeable Disqualified Interests Stock of the Company or convertible or exchangeable debt securities of the Company Company, in each case that have been converted into such or exchanged for Qualifying Equity Interests of the Company (other than Qualifying Equity Interests (and convertible or exchangeable Disqualified Interests Stock or convertible debt securities) securities sold to a Subsidiary of the Company); plus
(C) to the extent that any Restricted Investment that was made after April 12, together with the aggregate cash and Cash Equivalents received by the Company 2013 is (a) sold or any of its otherwise cancelled, liquidated or repaid, or (b) made in an entity that subsequently becomes a Restricted Subsidiaries at the time of such conversion or exchange plus the amount by which Indebtedness Subsidiary of the Company that is a Subsidiary Guarantor, the initial amount of such Restricted Investment (or, if less, the amount of cash or the Fair Market Value, as determined in good faith by the Board of Directors of the Company, of property and its Restricted Subsidiaries is reduced marketable securities, in each case received upon repayment or sale); plus
(D) to the conversion or exchange subsequent to August 27, 2012 of extent that any Indebtedness or Disqualified Interests which are convertible into or exchangeable for Qualified Capital Interests Unrestricted Subsidiary of the Company designated as such after the date of this Agreement is redesignated as a Restricted Subsidiary after the date of this Agreement, the lesser of (i) the Fair Market Value of the Company’s Restricted Investment in such Subsidiary as of the date of such redesignation or any (ii) such Fair Market Value as of its Restricted Subsidiaries, the date on which such Subsidiary was originally designated as an Unrestricted Subsidiary after the date of this Agreement; plus
(3E) 100% of any dividends received in cash and the amount receivedFair Market Value, including the fair market value of any property received after August 27, 2012 by means of (A) the sale or other disposition (other than to the Company or a Restricted Subsidiary) of Restricted Investments made as determined in good faith by the Company or its Restricted Subsidiaries and repurchases and redemptions Board of such Restricted Investments from the Company or its Restricted Subsidiaries and repayments of loans or advances which constitute Restricted Investments Directors of the Company or its Restricted Subsidiaries or (B) the sale (other than to the Company or a Restricted Subsidiary) Company, of the Capital Interests of an Unrestricted Subsidiary or a distribution from an Unrestricted Subsidiary (other than in each case to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment) or a dividend from an Unrestricted Subsidiary, plus
(4) in the case of the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary or the merger or consolidation of an Unrestricted Subsidiary into property and marketable securities received by the Company or a Restricted Subsidiary or of the transfer of assets of Company that is a Subsidiary Guarantor after April 12, 2013 from an Unrestricted Subsidiary to the Company or a Restricted Subsidiary, the fair market value of the Investment in such Unrestricted Subsidiary (other than an Unrestricted Subsidiary to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment), plus
(5) $141.0 million. The Board of Directors 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 in the Subsidiary so designated will be deemed to be Restricted Payments or Permitted Investments, in the Company’s discretion, at the time of such designation and will reduce the amount available for Restricted Payments or Permitted Investments, as applicable. 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 Payments or Permitted Investments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary.
(b) Section 4.07(a) shall not prohibit:
(i) the payment of any dividend or other distribution or redemption within 60 days after the date of declaration or call for redemption thereof, if at said date of declaration or call for redemption such payment would have complied with the provisions of this Indenture;
(ii) the making of any Restricted Payment in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Subsidiary of the Company) of, Equity Interests of the Company (other than any Disqualified Interests) or from a contribution of capital to the Company; 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 Section 4.07(a)(C)(2);
(iii) the defeasance, redemption, repurchase, replacement, extension, renewal, refinancing or retirement or other acquisition of subordinated Indebtedness or Disqualified Interests in exchange for or with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness;
(iv) the declaration, or payment of any dividend or other distribution 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 current or former officer, director, employee, consultant or agent of Company or any of its Restricted Subsidiaries (or Heirs or other permitted transferees thereof) upon death, disability, retirement, severance or termination of employment or service or in connection with a stock option plan or agreement, shareholders agreement, or similar agreement, plan or arrangement, including amendments thereto; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may not exceed: (A) $10.0 million in any calendar year, with unused amounts being available to be used in any later calendar year; provided that such amount in any calendar year may be increased in an amount not to exceed the net cash proceeds from the sale of Equity Interests (other than Disqualified Interests) of the Company to any officer, director, employee or agent of the Company or any Subsidiary of the Company that occurs after the date of this Indenture, to the extent that such net cash proceeds have dividends were not otherwise been applied to make Restricted Payments pursuant to Section 4.07(a)(C)(2); plus (B) the cash proceeds of key man life insurance policies received by the Company and its Restricted Subsidiaries after the date of this Indenture that are used for the repurchase, redemption or other acquisition or retirement for value owned by the individual (or such individual’s estate) that is the subject of such insurance;
(vi) the repurchase of Equity Interests deemed to occur upon the exercise of options, warrants or other convertible securities to the extent such Equity Interests represent a portion of the exercise price of those options, warrants or other convertible securities and cash payments in lieu of the issuance of fractional shares in connection with the exercise of options, warrants, or other convertible securities;
(vii) the declaration and payment of regular quarterly dividends on the Company’s Equity Interests in accordance with past practice and not to exceed $0.05 per share;
(viii) additional Restricted Payments not to exceed $150.0 million after August 27, 2012;
(ix) the repurchase of the Company’s Equity Interests in an amount not to exceed $50.0 million after August 27, 2012;
(x) distributions or payments of Securitization Fees and purchases of Securitization Assets pursuant to a Securitization Repurchase Obligation in connection with a Qualified Securitization Financing;
(xi) any payments made in connection with the consummation of the transactions on substantially the terms described included in the Offering Memorandum;
(xii) the payment of intercompany subordinated debt, the incurrence of which was permitted under Section 4.09(b)(vi);
(xiii) the purchase of fractional shares by the Company upon conversion of any securities Consolidated Net Income of the Company into Capital Interests of the Company;
(xiv) the repurchase, redemption or other acquisition or retirement for value of subordinated Indebtedness or Disqualified Interests pursuant to the provisions similar to those described under Section 4.14 and Section 4.10; provided that all Notes tendered by Holders of the Notes in connection with the related Change of Control Offer or Asset Sale Offer, as applicable, have been repurchased, redeemed or acquired for value in full; and
(xv) payment of dividends on Disqualified Interests of the Company or a Restricted Subsidiary, the issuance of which is permitted by this Indenturesuch period.
(c) 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 Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall be determined by an officer of the Company. In the event that a Restricted Payment meets the criteria of more than one of the exceptions described in (i) through (xv) above or is entitled to be made pursuant to the first paragraph of this covenant, the Company may, in its sole discretion, classify, and may later reclassify from time to time, such Restricted Payment or any portion thereof into or among any of such applicable provisions.
Appears in 1 contract
Restricted Payments. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectlyexcept as hereinafter provided:
(i) declare Declare or pay any dividend dividends, either in cash or make property, on any other payment or distribution on account of the Company’s or any shares of its Restricted Subsidiaries’ Equity Interests capital stock of any class (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 (A) except dividends or other distributions accrued or payable solely in Equity Interests (other than Disqualified Interests) shares of the Company or (B) dividends or distributions to the Company or a Restricted Subsidiary common stock of the Company);
(ii) Directly or indirectly, or through any Subsidiary or Affiliate of the Company, purchase, redeem or otherwise retire any shares of its capital stock of any class or any warrants, rights or options to purchase or acquire any shares of its capital stock (other than (i) in exchange for or retire for value (including, without limitation, in connection with any merger out of the net cash proceeds to the Company from the substantially concurrent issue or consolidation involving the Company) any Equity Interests sale of shares of common stock of the Company or warrants, rights or options to purchase or acquire any direct shares of its common stock or indirect parent (ii) any of the foregoing with respect to capital stock, warrants, rights or options issued to employees, directors or agents of the Company (other than any such Equity Interests owned by the Company pursuant to a benefit or any Restricted Subsidiary compensation plan or agreement of the Company);; or
(iii) make Make any other payment on or with respect todistribution, either directly or purchase, redeem, defease indirectly or otherwise acquire through any Subsidiary or retire for value any Indebtedness that is subordinated to the Notes or any Note Guarantee (other than Indebtedness permitted under clause (vi) Affiliate of the definition of “Permitted Debt”) except (a) a payment of interest or principal at Stated Maturity or (b) the purchase, repurchase or other acquisition of any such Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturityCompany, in each caserespect of its capital stock; (such declarations or payments of dividends, due within one year purchases, redemptions or retirements of the date of such purchasecapital stock and warrants, repurchase rights or other acquisition; or
(iv) make any Restricted Investment (options and all such other payments and other actions set forth in clauses (i) through (iv) above or distributions being herein collectively referred to as “called "Restricted Payments”"), unless, if at the time of such Restricted Payments and after giving effect to such Restricted Payment:
(A) no thereto any 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 Fixed Charge Coverage Ratio test set forth in Section 4.09(a); and
(C) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made made, paid or declared by the Company or any Restricted Subsidiary since the date of the Closing to and its including the date of the making of the Restricted Subsidiaries after August 27, 2012 Payment in question would exceed the sum of (excluding Restricted Payments permitted by clauses A) $20,000,000 plus (iB) (provided that at the time of declaring such dividend, such dividend was counted as a Restricted Payment) (ii), (iii), (iv), (v), (vi), (vii), (viii), (ix), (x), (xi), (xii), (xiii), (xiv) and (xv) of Section 4.07(b)), is less than the sum, without duplication, of
(1) 50100% of the Consolidated Net Income for such period, beginning with the first Fiscal Year after the date of the Company Closing to and including the date of the making of the Restricted Payment in question, computed on a cumulative basis for the said entire period (taken as one accounting period) from April 2, 2012 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, or if such Consolidated Net Income for such period is a deficitdeficit figure, less then minus 100% of such deficit), plus
(2) 100% of the aggregate net proceeds, including the fair market value of . The Company will not declare any property or Capital Interests, received by the Company since August 27, 2012 as a contribution to its equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified Interests) or from the issue or sale of Disqualified Interests or debt securities of the Company that have been converted into such Equity Interests (other than Equity Interests (or Disqualified Interests or convertible debt securities) sold to a Subsidiary of the Company), together with the aggregate cash and Cash Equivalents received by the Company or any of its Restricted Subsidiaries at the time of such conversion or exchange plus the amount by dividend which Indebtedness of the Company and its Restricted Subsidiaries is reduced upon the conversion or exchange subsequent to August 27, 2012 of any Indebtedness or Disqualified Interests which are convertible into or exchangeable for Qualified Capital Interests of the Company or any of its Restricted Subsidiaries, plus
(3) 100% of the amount received, including the fair market value of any property received after August 27, 2012 by means of (A) the sale or other disposition (other than to the Company or constitutes a Restricted Subsidiary) of Restricted Investments made by the Company or its Restricted Subsidiaries and repurchases and redemptions of such Restricted Investments from the Company or its Restricted Subsidiaries and repayments of loans or advances which constitute Restricted Investments of the Company or its Restricted Subsidiaries or (B) the sale (other Payment payable more than to the Company or a Restricted Subsidiary) of the Capital Interests of an Unrestricted Subsidiary or a distribution from an Unrestricted Subsidiary (other than in each case to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment) or a dividend from an Unrestricted Subsidiary, plus
(4) in the case of the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary or the merger or consolidation of an Unrestricted Subsidiary into the Company or a Restricted Subsidiary or the transfer of assets of an Unrestricted Subsidiary to the Company or a Restricted Subsidiary, the fair market value of the Investment in such Unrestricted Subsidiary (other than an Unrestricted Subsidiary to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment), plus
(5) $141.0 million. The Board of Directors 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 in the Subsidiary so designated will be deemed to be Restricted Payments or Permitted Investments, in the Company’s discretion, at the time of such designation and will reduce the amount available for Restricted Payments or Permitted Investments, as applicable. 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 Payments or Permitted Investments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary.
(b) Section 4.07(a) shall not prohibit:
(i) the payment of any dividend or other distribution or redemption within 60 days after the date of declaration or call for redemption thereof, if at said date of declaration or call for redemption such payment would have complied with the provisions of this Indenture;
(ii) the making of any Restricted Payment in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Subsidiary of the Company) of, Equity Interests of the Company (other than any Disqualified Interests) or from a contribution of capital to the Company; 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 Section 4.07(a)(C)(2);
(iii) the defeasance, redemption, repurchase, replacement, extension, renewal, refinancing or retirement or other acquisition of subordinated Indebtedness or Disqualified Interests in exchange for or with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness;
(iv) the declaration, or payment of any dividend or other distribution 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 current or former officer, director, employee, consultant or agent of Company or any of its Restricted Subsidiaries (or Heirs or other permitted transferees thereof) upon death, disability, retirement, severance or termination of employment or service or in connection with a stock option plan or agreement, shareholders agreement, or similar agreement, plan or arrangement, including amendments thereto; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may not exceed: (A) $10.0 million in any calendar year, with unused amounts being available to be used in any later calendar year; provided that such amount in any calendar year may be increased in an amount not to exceed the net cash proceeds from the sale of Equity Interests (other than Disqualified Interests) of the Company to any officer, director, employee or agent of the Company or any Subsidiary of the Company that occurs after the date of this Indenture, to the extent such net cash proceeds have not otherwise been applied to make Restricted Payments pursuant to Section 4.07(a)(C)(2); plus (B) the cash proceeds of key man life insurance policies received by the Company and its Restricted Subsidiaries after the date of this Indenture that are used for the repurchase, redemption or other acquisition or retirement for value owned by the individual (or such individual’s estate) that is the subject of such insurance;
(vi) the repurchase of Equity Interests deemed to occur upon the exercise of options, warrants or other convertible securities to the extent such Equity Interests represent a portion of the exercise price of those options, warrants or other convertible securities and cash payments in lieu of the issuance of fractional shares in connection with the exercise of options, warrants, or other convertible securities;
(vii) the declaration and payment of regular quarterly dividends on the Company’s Equity Interests in accordance with past practice and not to exceed $0.05 per share;
(viii) additional Restricted Payments not to exceed $150.0 million after August 27, 2012;
(ix) the repurchase of the Company’s Equity Interests in an amount not to exceed $50.0 million after August 27, 2012;
(x) distributions or payments of Securitization Fees and purchases of Securitization Assets pursuant to a Securitization Repurchase Obligation in connection with a Qualified Securitization Financing;
(xi) any payments made in connection with the consummation of the transactions on substantially the terms described in the Offering Memorandum;
(xii) the payment of intercompany subordinated debt, the incurrence of which was permitted under Section 4.09(b)(vi);
(xiii) the purchase of fractional shares by the Company upon conversion of any securities of the Company into Capital Interests of the Company;
(xiv) the repurchase, redemption or other acquisition or retirement for value of subordinated Indebtedness or Disqualified Interests pursuant to the provisions similar to those described under Section 4.14 and Section 4.10; provided that all Notes tendered by Holders of the Notes in connection with the related Change of Control Offer or Asset Sale Offer, as applicable, have been repurchased, redeemed or acquired for value in full; and
(xv) payment of dividends on Disqualified Interests of the Company or a Restricted Subsidiary, the issuance of which is permitted by this Indenture.
(c) 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 Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall be determined by an officer of the Company. In the event that a Restricted Payment meets the criteria of more than one of the exceptions described in (i) through (xv) above or is entitled to be made pursuant to the first paragraph of this covenant, the Company may, in its sole discretion, classify, and may later reclassify from time to time, such Restricted Payment or any portion thereof into or among any of such applicable provisions.
Appears in 1 contract
Restricted Payments. (a) 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 other than in connection with any merger or consolidation involving the Company or any of its Restricted SubsidiariesCompany) 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 (Ax) dividends or distributions accrued or payable in Equity Interests (other than Disqualified InterestsStock) of the Company or (B) dividends or distributions to the Company or a any Restricted Subsidiary of the CompanyCompany or (y) Qualified Distributions);
; (ii) purchase, redeem or otherwise acquire or retire for value (including, without limitation, other than in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or any direct or indirect parent of the Company (other than any such Equity Interests owned by the Company or any Restricted Subsidiary of the Company);
; (iii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness that is subordinated to the Notes or any Note Guarantee of the Notes (other than Indebtedness permitted under clause (vi) of between or among the definition of “Permitted Debt”) Company and its Restricted Subsidiaries), except (a) a payment of interest or principal at Stated Maturity thereof; or (b) the purchase, repurchase or other acquisition of any such Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case, due within one year of the date of such purchase, repurchase or other acquisition; or
(iv) make any Restricted Investment (all such payments and other actions set forth in clauses (i) through (iv) 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;; and
(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 Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 4.09(a)4.09; and
(Cc) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after August 27, 2012 since the date of this Indenture (excluding Restricted Payments permitted by clauses (i) (provided that at the time of declaring such dividend, such dividend was counted as a Restricted Payment) (ii), (iii), (iv), (v), (vi), (vii), (viii), (ix), (x), (xi), (xii), (xiii), (xiv) and (xvx) of Section 4.07(b)the next succeeding paragraph), is less than the sum, without duplication, of
: (1i) 50% of the Consolidated Net Income of the Company for the period (taken as one accounting period) from April 2July 1, 2012 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
plus (2ii) 100% of the aggregate net proceeds, proceeds (including cash and the fair market value of any property or Capital Interests, other than cash as determined in good faith by the Board of Directors of the Company) received by the Company since August 27, 2012 the 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 Interests) Stock), in each case including in connection with an acquisition, or from the issue or sale of convertible or exchangeable Disqualified Interests Stock or convertible or exchangeable debt securities of the Company that have been converted into or exchanged for such Equity Interests (other than Equity Interests (or Disqualified Interests Stock or convertible debt securities) sold to a Subsidiary of the Company), together plus (iii) to the extent that any Restricted Investment that was made after the date of this Indenture is sold for cash or otherwise liquidated or repaid for cash, the cash received with respect to such Restricted Investment (less the aggregate cash and Cash Equivalents received by the Company or cost of disposition, if any), provided that any of its Restricted Subsidiaries at the time of such conversion or exchange plus the amount by which Indebtedness Consolidated Net Income of the Company and resulting from such cash received (less the cost of disposition, if any) will be excluded from clause (c)(i), plus (iv) if any Unrestricted Subsidiary (A) is redesignated as a Restricted Subsidiary, the fair market value of such redesignated Subsidiary (as determined in good faith by the Board of Directors of the Company) as of the date of its Restricted Subsidiaries is reduced upon the conversion redesignation or exchange subsequent (B) pays any cash dividends or cash distributions to August 27, 2012 of any Indebtedness or Disqualified Interests which are convertible into or exchangeable for Qualified Capital Interests of the Company or any of its Restricted Subsidiaries, plus
(3) 100% the amount of any such dividends or distributions made after the date of this Indenture. The foregoing provisions shall not prohibit any of the amount received, including the fair market value of any property received after August 27, 2012 by means of (A) the sale or other disposition (other than to the Company or a Restricted Subsidiary) of Restricted Investments made by the Company or its Restricted Subsidiaries and repurchases and redemptions of such Restricted Investments from the Company or its Restricted Subsidiaries and repayments of loans or advances which constitute Restricted Investments of the Company or its Restricted Subsidiaries or (B) the sale (other than to the Company or a Restricted Subsidiary) of the Capital Interests of an Unrestricted Subsidiary or a distribution from an Unrestricted Subsidiary (other than in each case to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment) or a dividend from an Unrestricted Subsidiary, plus
(4) in the case of the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary or the merger or consolidation of an Unrestricted Subsidiary into the Company or a Restricted Subsidiary or the transfer of assets of an Unrestricted Subsidiary to the Company or a Restricted Subsidiary, the fair market value of the Investment in such Unrestricted Subsidiary (other than an Unrestricted Subsidiary to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment), plus
(5) $141.0 million. The Board of Directors 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 in the Subsidiary so designated will be deemed to be Restricted Payments or Permitted Investments, in the Company’s discretion, at the time of such designation and will reduce the amount available for Restricted Payments or Permitted Investments, as applicable. 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 Payments or Permitted Investments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary.
(b) Section 4.07(a) shall not prohibit:
following: (i) the payment of any dividend or other distribution or the consummation of any redemption of Indebtedness that is subordinated to the Notes within 60 days after the date of declaration of the dividend or call for redemption thereofdistribution or the giving of notice of redemption, as the case may be, if at the said date of declaration or call for notice of such dividend, distribution or redemption such payment would have complied with the provisions of this Indenture;
; (ii) the making redemption, repurchase, retirement, defeasance or other acquisition of any subordinated Indebtedness of the Company or any Restricted Payment Subsidiary (including the payment of any related prepayment penalty or premium) or of any Equity Interests of the Company in exchange for, or out of the net cash proceeds of the substantially concurrent sale or issuance (other than to a Subsidiary of the Company) of, Equity Interests of the Company (other than any Disqualified InterestsStock) or from a the net cash proceeds of an equity capital contribution of capital to the Company; 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 Section 4.07(a)(C)(2);
clause (c)(ii) of the preceding paragraph; (iii) the defeasance, redemption, repurchase, replacement, extension, renewal, refinancing or retirement repurchase or other acquisition of subordinated Indebtedness of the Company or Disqualified Interests in exchange for or any Restricted Subsidiary with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness;
, so long as no Default has occurred and is continuing or would be caused thereby; (iv) the declaration, or payment of any dividend or other 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 any Equity Interests of the Company or any Restricted Subsidiary of the Company held by any current or former officer, director, employee, consultant or agent member of Company the Company’s (or any of its Restricted Subsidiaries (or Heirs or other permitted transferees thereofSubsidiaries’) upon deathmanagement pursuant to any management equity subscription agreement, disability, retirement, severance or termination of employment or service or in connection with a stock option plan or agreement, shareholders agreement, agreement or similar agreement, plan agreement so long as no Default has occurred and is continuing or arrangement, including amendments theretowould be caused thereby; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may shall not exceed: (A) exceed $10.0 million in any calendar year, with unused amounts being available twelve-month period; (vi) the declaration or payment of dividends or advances to be used the Company for expenses incurred by the Company in any later calendar yearits capacity as a holding company that are attributable to the operations of the Company and its Restricted Subsidiaries; provided that such amount in any calendar year may be increased (vii) the declaration or payment of dividends by the Company to holders of its Equity Interests in an amount not to exceed the net cash proceeds from the sale of Equity Interests $50.0 million in any fiscal year; (other than Disqualified Interests) of the Company to any officer, director, employee or agent of the Company or any Subsidiary of the Company that occurs after the date of this Indenture, to the extent such net cash proceeds have not otherwise been applied to make Restricted Payments pursuant to Section 4.07(a)(C)(2); plus (B) the cash proceeds of key man life insurance policies received by the Company and its Restricted Subsidiaries after the date of this Indenture that are used for the repurchase, redemption or other acquisition or retirement for value owned by the individual (or such individual’s estate) that is the subject of such insurance;
(viviii) the repurchase of Equity Interests deemed to occur upon the exercise of options, warrants or other convertible securities to the extent stock options if such Equity Interests represent a portion of the exercise price of those such options, warrants or other convertible securities and cash payments in lieu of the issuance of fractional shares in connection with the exercise of options, warrants, or other convertible securities;
(vii) the declaration and payment of regular quarterly dividends on the Company’s Equity Interests in accordance with past practice and not to exceed $0.05 per share;
(viii) additional Restricted Payments not to exceed $150.0 million after August 27, 2012;
; (ix) the defeasance, redemption, repurchase or other acquisition of any Indebtedness subordinated or pari passu in right of payment to the Notes at a purchase price not greater than 101% of the principal amount of such Indebtedness, plus any accrued and unpaid interest thereon, in the event of a Change of Control Triggering Event; provided that prior to or contemporaneously with such repurchase, the Company has made the Change of Control Offer with respect to the Notes required by this Indenture, if any, and has repurchased all Notes validly tendered for payment and not withdrawn in connection with such Change of Control Offer; (x) the repurchase of Equity Interests on any date that each series of notes then outstanding is rated Ba3 or better by Xxxxx’x and BB or better by S&P (or in either case, if such entity ceases to rate such notes for reasons outside of the control of the Company, the equivalent credit rating from any other Rating Agency), provided that on the date of such repurchase after giving pro forma effect thereto and to any related financing transactions as if the same had occurred at the beginning of the Company’s Equity Interests most recently ended four full fiscal quarters for which internal financial statements are available, the Company’s Leverage Ratio would have been equal to or less than 2.5 to 1; or (xi) other Restricted Payments in an aggregate amount not to exceed $50.0 million after August 27, 2012;
(x) distributions or payments of Securitization Fees and purchases of Securitization Assets pursuant to a Securitization Repurchase Obligation in connection with a Qualified Securitization Financing;
(xi) any payments made in connection with the consummation of the transactions on substantially the terms described in the Offering Memorandum;
(xii) the payment of intercompany subordinated debt, the incurrence of which was permitted under Section 4.09(b)(vi);
(xiii) the purchase of fractional shares by the Company upon conversion of any securities of the Company into Capital Interests of the Company;
(xiv) the repurchase, redemption or other acquisition or retirement for value of subordinated Indebtedness or Disqualified Interests pursuant to the provisions similar to those described under Section 4.14 and Section 4.10; provided that all Notes tendered by Holders of the Notes in connection with the related Change of Control Offer or Asset Sale Offer, as applicable, have been repurchased, redeemed or acquired for value in full; and
(xv) payment of dividends on Disqualified Interests of the Company or a Restricted Subsidiary, the issuance of which is permitted by this Indenture.
(c) 100.0 million. 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) assets 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. The fair market value of any non-cash Restricted Payment assets or securities that are required to be valued by this Section shall be determined by an officer the Board of Directors of the Company, whose determination will be conclusive. In For purposes of determining compliance with this Section, in the event that a Restricted Payment meets the criteria of more than one of the exceptions described in clauses (i) through (xvxi) above in this Section 4.07 or is entitled to be made pursuant to the first paragraph of this covenantSection, the Company mayshall, in its sole discretion, classify such Restricted Payment, or later classify, and may later reclassify from time to time, or re-divide all or a portion of such Restricted Payment or Payment, in any portion thereof into or among any of such applicable provisionsmanner that complies with this Section 4.07.
Appears in 1 contract
Samples: Indenture (Amerisourcebergen Corp)
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 ’s, or any of its Restricted Subsidiaries’ Equity Interests (includingInterests, without limitation, including any payment dividend or distribution payable 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 (Subsidiary, other than than:
(A) dividends or distributions accrued or by the Company payable solely in Equity Interests (other than Disqualified InterestsStock) of the Company or Company; or
(B) dividends or distributions to by a Restricted Subsidiary so long as the Company or a Restricted Subsidiary receives at least its pro rata share of the Company)such dividend or distribution in accordance with its Equity Interests in such class or series of securities;
(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 the Company (other than any such Equity Interests owned by the Company or any Restricted Subsidiary of the Company);
(iii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness that is subordinated to Equity Interests of the Notes Company, or any Note Guarantee direct or indirect parent of the Company, including any such purchase, redemption, defeasance, acquisition or retirement in connection with any merger or consolidation;
(iii) make any principal payment on, or redeem, repurchase, defease or otherwise acquire or retire for value, in each case, prior to any scheduled repayment, sinking fund payment or maturity, any Subordinated Indebtedness, other than (a) Indebtedness permitted under clause (viSection 4.09(b)(7) of the definition of “Permitted Debt”or 4.09(b)(8) except (a) a payment of interest or principal at Stated Maturity or (b) the purchasepayment, repurchase redemption, repurchase, defeasance or other acquisition of any such Subordinated Indebtedness in anticipation of satisfying a rescheduled payment, sinking fund obligation, principal installment or final maturity, in each case, case due within one year of the date of such purchasepayment, repurchase redemption, repurchase, defeasance, acquisition or other acquisitionretirement; or
(iv) make any Restricted Investment (all such payments and other actions set forth in clauses (i) through (iv) above (other than any exceptions thereto) 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) immediately after giving effect to such transaction on a Pro Forma Basis, 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 could incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in under Section 4.09(a); and
(C3) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries (and not rescinded or refunded) after August 27, 2012 the Issue Date (excluding including Restricted Payments permitted by clauses (i) (provided that at the time of declaring such dividend, such dividend was counted as a Restricted Payment) (iiSection 4.07(b)(1), (iii), (iv), (v), (vi), (vii), (viii), (ix), (x), (xi), (xii), (xiii), (xiv) and (xv) of but excluding all other Restricted Payments permitted by Section 4.07(b)), is less than the sum, sum of (without duplication, of):
(1a) 50% of the Consolidated Net Income of the Company for the period (taken as one accounting period) from April 2beginning on October 1, 2012 2021 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, which may not be less 100% of such deficitthan zero), ; plus
(2b) 100% of the aggregate net proceeds, including cash proceeds and the fair market value of any marketable securities or other property or Capital Interests, received by the Company since August 27, 2012 as a contribution to its equity capital or immediately after the Issue Date from the issue or sale of of:
(i) Equity Interests of the Company (other than Disqualified Interests) or from the issue or sale of Disqualified Interests or debt securities of the Company that have been converted into such Equity Interests (other than Equity Interests (or Disqualified Interests or convertible debt securities) sold to a Subsidiary of the Company), together with the aggregate cash and Cash Equivalents received by the Company or any of its Restricted Subsidiaries at the time of such conversion or exchange plus the amount by which Indebtedness of the Company and its Restricted Subsidiaries is reduced upon the conversion or exchange subsequent to August 27, 2012 of any Indebtedness or Disqualified Interests which are convertible into or exchangeable for Qualified Capital Interests of the Company or any of its Restricted Subsidiaries, plus
(3) 100% of the amount received, including Treasury Capital Stock, but excluding cash proceeds and the fair market value of any marketable securities or other property received after August 27, 2012 by means of (A) the sale or other disposition (other than to the Company or a Restricted Subsidiary) of Restricted Investments made by the Company or its Restricted Subsidiaries and repurchases and redemptions of such Restricted Investments from the Company or its Restricted Subsidiaries and repayments of loans or advances which constitute Restricted Investments of the Company or its Restricted Subsidiaries or (B) the sale (other than to the Company or a Restricted Subsidiary) of the Capital Interests of an Unrestricted Subsidiary or a distribution from an Unrestricted Subsidiary (other than in each case to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment) or a dividend from an Unrestricted Subsidiary, plus
(4) in the case of the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary or the merger or consolidation of an Unrestricted Subsidiary into the Company or a Restricted Subsidiary or the transfer of assets of an Unrestricted Subsidiary to the Company or a Restricted Subsidiary, the fair market value of the Investment in such Unrestricted Subsidiary (other than an Unrestricted Subsidiary to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment), plus
(5) $141.0 million. The Board of Directors 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 in the Subsidiary so designated will be deemed to be Restricted Payments or Permitted Investments, in the Company’s discretion, at the time of such designation and will reduce the amount available for Restricted Payments or Permitted Investments, as applicable. 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 Payments or Permitted Investments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary.
(b) Section 4.07(a) shall not prohibit:
(i) the payment of any dividend or other distribution or redemption within 60 days after the date of declaration or call for redemption thereof, if at said date of declaration or call for redemption such payment would have complied with the provisions of this Indenture;
(ii) the making of any Restricted Payment in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Subsidiary of the Company) of, Equity Interests of the Company (other than any Disqualified Interests) or from a contribution of capital to the Company; 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 Section 4.07(a)(C)(2);
(iii) the defeasance, redemption, repurchase, replacement, extension, renewal, refinancing or retirement or other acquisition of subordinated Indebtedness or Disqualified Interests in exchange for or with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness;
(iv) the declaration, or payment of any dividend or other distribution 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 current or former officer, director, employee, consultant or agent of Company or any of its Restricted Subsidiaries (or Heirs or other permitted transferees thereof) upon death, disability, retirement, severance or termination of employment or service or in connection with a stock option plan or agreement, shareholders agreement, or similar agreement, plan or arrangement, including amendments thereto; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may not exceed: (A) $10.0 million in any calendar year, with unused amounts being available to be used in any later calendar year; provided that such amount in any calendar year may be increased in an amount not to exceed the net cash proceeds from the sale of Equity Interests (other than Disqualified Interests) of the Company to any officer, director, employee or agent of the Company or any Subsidiary of the Company that occurs after the date of this Indenture, to the extent such net cash proceeds have not otherwise been applied to make Restricted Payments pursuant to Section 4.07(a)(C)(2); plus (B) the cash proceeds of key man life insurance policies received by the Company and its Restricted Subsidiaries after the date of this Indenture that are used for the repurchase, redemption or other acquisition or retirement for value owned by the individual (or such individual’s estate) that is the subject of such insurance;
(vi) the repurchase of Equity Interests deemed to occur upon the exercise of options, warrants or other convertible securities to the extent such Equity Interests represent a portion of the exercise price of those options, warrants or other convertible securities and cash payments in lieu of the issuance of fractional shares in connection with the exercise of options, warrants, or other convertible securities;
(vii) the declaration and payment of regular quarterly dividends on the Company’s Equity Interests in accordance with past practice and not to exceed $0.05 per share;
(viii) additional Restricted Payments not to exceed $150.0 million after August 27, 2012;
(ix) the repurchase of the Company’s Equity Interests in an amount not to exceed $50.0 million after August 27, 2012;
(x) distributions or payments of Securitization Fees and purchases of Securitization Assets pursuant to a Securitization Repurchase Obligation in connection with a Qualified Securitization Financing;
(xi) any payments made in connection with the consummation of the transactions on substantially the terms described in the Offering Memorandum;
(xii) the payment of intercompany subordinated debt, the incurrence of which was permitted under Section 4.09(b)(vi);
(xiii) the purchase of fractional shares by the Company upon conversion of any securities of the Company into Capital Interests of the Company;
(xiv) the repurchase, redemption or other acquisition or retirement for value of subordinated Indebtedness or Disqualified Interests pursuant to the provisions similar to those described under Section 4.14 and Section 4.10; provided that all Notes tendered by Holders of the Notes in connection with the related Change of Control Offer or Asset Sale Offer, as applicable, have been repurchased, redeemed or acquired for value in full; and
(xv) payment of dividends on Disqualified Interests of the Company or a Restricted Subsidiary, the issuance of which is permitted by this Indenture.
(c) 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 Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall be determined by an officer of the Company. In the event that a Restricted Payment meets the criteria of more than one of the exceptions described in (i) through (xv) above or is entitled to be made pursuant to the first paragraph of this covenant, the Company may, in its sole discretion, classify, and may later reclassify from time to time, such Restricted Payment or any portion thereof into or among any of such applicable provisions.of:
Appears in 1 contract
Samples: Indenture (Glatfelter Corp)
Restricted Payments. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiaries Subsidiary 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’ Subsidiary’s Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company or any of its Restricted SubsidiariesCompany) or to the direct or indirect holders of the Company’s or any of its Restricted Subsidiaries’ Subsidiary’s Equity Interests in their capacity as such such, other than:
(other than (Ai) dividends or distributions accrued or by the Company payable in Equity Interests (other than Disqualified InterestsStock) of the Company or Company, or
(Bii) dividends or distributions to by a Restricted Subsidiary, provided that, in the case of any dividend or distribution payable on or in respect of any class or series of securities issued by a Restricted Subsidiary other than a Wholly Owned Subsidiary, the Company or a Restricted Subsidiary receives at least its pro rata share of the Company)such dividend or distribution in accordance with its Equity Interests in such class or series of securities;
(ii2) purchase, redeem redeem, defease 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 the Company (other than any such Equity Interests owned by the Company or any Restricted Subsidiary of the Company)Parent;
(iii3) make any principal payment on or with respect to, or purchaseredeem, redeemrepurchase, defease or otherwise acquire or retire for value any Indebtedness that is subordinated to the Notes or any Note Guarantee (other than Indebtedness permitted under clause (vi) of the definition of “Permitted Debt”) except (a) a payment of interest or principal at Stated Maturity or (b) the purchase, repurchase or other acquisition of any such Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case, due within one year prior to any scheduled repayment, sinking fund payment or maturity, any Subordinated Indebtedness of the date Company or such Restricted Subsidiary (including any payment in respect of any amendment of the terms of such purchaseSubordinated Indebtedness, repurchase which amendment is sought in connection with any such acquisition of Subordinated Indebtedness or seeks to shorten any such date), other acquisitionthan Indebtedness owed to the Company or a Guarantor permitted under clauses (7) and (8) of Section 4.09; or
(iv4) make any Restricted Investment Investment; (all such payments and other actions set forth in clauses (i1) through (iv4) 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 immediately after giving effect to such Restricted Payment and after giving 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 the Company could incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Total Leverage Ratio test set forth in paragraph (a) of Section 4.09 (for the purpose of this clause (B), without regard to the time limitation of one year following the Issue Date contained in such Section 4.09(a)); and
(C) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its the Restricted Subsidiaries after August 27, 2012 the Issue Date (excluding Restricted Payments permitted by clauses (i) (provided that at the time of declaring such dividend, such dividend was counted as a Restricted Payment) (ii2), (iii3), (iv5), (v6), (vi7), (vii), (viii), (ix), (x), (xi), (xii), (xiii), (xiv13) and (xv14) of paragraph (b) of this Section 4.07(b)4.10), is less (without duplication) than the sum, without duplication, sum of:
(1i) 50% of the Consolidated Net Income of the Company for the period (taken as one accounting period) from April 2the beginning of the first fiscal quarter commencing after the Issue Date, 2012 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 in the case such Consolidated Net Income for such period is a deficit, less minus 100% of such deficit), plus
(2ii) 100% of the aggregate net proceeds, including the fair market value of any property or Capital Interests, cash proceeds received by the Company since August 27, 2012 immediately 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 InterestsStock) or from the issue or sale of convertible or exchangeable Disqualified Interests Stock or convertible or exchangeable debt securities of the Company that have been converted into or exchanged for such Equity Interests (other than Equity Interests (or Disqualified Interests Stock or convertible debt securities) sold to a Restricted Subsidiary of the Company), together plus
(iii) to the extent that any Restricted Investment that was made since immediately after the Issue Date 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 aggregate cash cost of disposition, if any) and Cash Equivalents received by (y) the Company or any of its Restricted Subsidiaries at the time initial amount of such conversion or exchange plus the amount by which Indebtedness of the Company and its Restricted Subsidiaries is reduced upon the conversion or exchange subsequent to August 27, 2012 of any Indebtedness or Disqualified Interests which are convertible into or exchangeable for Qualified Capital Interests of the Company or any of its Restricted SubsidiariesInvestment, plus
(3iv) 100% of the amount received, including the fair market value of any property received after August 27, 2012 by means of (A) the sale or other disposition (other than to the Company or a Restricted Subsidiary) of Restricted Investments made by the Company or its Restricted Subsidiaries and repurchases and redemptions of such Restricted Investments from the Company or its Restricted Subsidiaries and repayments of loans or advances which constitute Restricted Investments extent that any Unrestricted Subsidiary of the Company or its designated as such since immediately after the Issue Date is redesignated as a Restricted Subsidiaries or Subsidiary after the Issue Date, the lesser of (Bi) the sale (other than to the Company or a Restricted Subsidiary) Fair Market Value of the Capital Interests Company’s Investment in such Subsidiary as of the date of such redesignation and (ii) such Fair Market Value as of the date on which such Subsidiary was originally designated as an Unrestricted Subsidiary or after the Issue Date and treated as a distribution from an Unrestricted Subsidiary (other than in each case to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment) or a dividend from an Unrestricted SubsidiaryRestricted Payment hereunder, plus
(4v) in the case 50% of the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary or the merger or consolidation of an Unrestricted Subsidiary into any dividends received by the Company or a Restricted Subsidiary or of the transfer of assets of Company since immediately after the Issue Date from an Unrestricted Subsidiary to the Company or a Restricted Subsidiary, the fair market value of the Investment in such Unrestricted Subsidiary (other than an Unrestricted Subsidiary Company, to the extent that such dividends were not otherwise included in the Investment in Consolidated Net Income of the Company for such Unrestricted Subsidiary constituted a Permitted Investment)period, plusminus
(5vi) $141.0 million. The Board 50% of Directors may designate any Restricted Subsidiary the aggregate amount of all Investments made since the Issue Date pursuant to be an Unrestricted Subsidiary if such designation would not cause a Default. For purposes clause (8) of making such determination, all outstanding Investments by the Company and its Restricted Subsidiaries in the Subsidiary so designated will be deemed to be Restricted Payments or Permitted Investments, in the Company’s discretion, at the time of such designation and will reduce the amount available for Restricted Payments or Permitted Investments, as applicable. 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 Payments or Permitted Investments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary“Permitted Investments” hereunder.
(b) Section 4.07(a) shall The foregoing provisions will not prohibit:
(i1) the payment of any dividend or other distribution or redemption within 60 days after the date of declaration or call for redemption thereof, if at said the date of declaration or call for redemption such payment would have complied with the provisions of this the Indenture;
(ii2) the making redemption, repurchase or other acquisition of Subordinated Indebtedness of the Company or any Guarantor or of any Restricted Payment Equity Interests of 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, Equity Interests of the Company (other than any Disqualified InterestsStock) or from a 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 redemption, repurchase, retirement, defeasance or other acquisition shall Restricted Payment will be excluded from clause (C)(ii) of paragraph (a) of this Section 4.07(a)(C)(2)4.10;
(iii3) the defeasance, redemption, repurchase, replacement, extension, renewal, refinancing or retirement or other acquisition of subordinated Indebtedness or Disqualified Interests in exchange for or with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness;
(iv) the declaration, or payment of any dividend or other distribution by a Subsidiary of the Company to the holders of its common Equity Interests on a pro rata basis;
(v) the repurchase, redemption repurchase or other acquisition or retirement of Subordinated Indebtedness of the Company made by exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, Refinancing Indebtedness of the Company which is incurred in compliance with Section 4.09;
(4) a Restricted Payment to pay for value the repurchase, retirement or other acquisition or retirement of common Equity Interests of the Parent held by any future, present or former employee, director or consultant of the Parent or any of its Subsidiaries 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 Restricted Payments made under this clause (4) do not exceed in any calendar year $1.0 million;
(5) the declaration and payment of distributions or dividends to holders of any Equity Interests class or series of Disqualified Stock of the Company or any Restricted Subsidiary of the Company held by any current or former officer, director, employee, consultant or agent of Company or any of its Restricted Subsidiaries (or Heirs or other permitted transferees thereof) upon death, disability, retirement, severance or termination of employment or service or issued in connection accordance with a stock option plan or agreement, shareholders agreement, or similar agreement, plan or arrangement, including amendments thereto; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may not exceed: (A) $10.0 million in any calendar year, with unused amounts being available to be used in any later calendar year; provided that such amount in any calendar year may be increased in an amount not to exceed the net cash proceeds from the sale of Equity Interests (other than Disqualified Interests) of the Company to any officer, director, employee or agent of the Company or any Subsidiary of the Company that occurs after the date of this Indenture, Section 4.09 to the extent such net cash proceeds have not otherwise been applied to make Restricted Payments pursuant to Section 4.07(a)(C)(2); plus (B) dividends are included in the cash proceeds definition of key man life insurance policies received by the Company and its Restricted Subsidiaries after the date of this Indenture that are used for the repurchase, redemption or other acquisition or retirement for value owned by the individual (or such individual’s estate) that is the subject of such insuranceConsolidated Fixed Charges;
(vi6) the repurchase repurchases of Equity Interests deemed to occur upon the exercise of options, stock options or warrants or other convertible securities to the extent if such Equity Interests represent a portion of the exercise price of those options, warrants such options or other convertible securities and cash payments in lieu of the issuance of fractional shares in connection with the exercise of options, warrants, or other convertible securities;
(vii7) the declaration and payment of regular quarterly distributions or dividends on by the Company’s Equity Interests Company to, or the making of loans to the Parent in accordance with past practice amounts required for the Parent to pay:
(A) franchise taxes and other fees, taxes and expenses required to maintain its corporate existence,
(B) customary salary, bonus and other benefits payable to officers and employees of the Parent to the extent such salaries, bonuses and other benefits are attributable to the ownership or operation of the Company and the Restricted Subsidiaries, and
(C) general corporate overhead expenses of the Parent to the extent such expenses are attributable or allocable to the ownership or operation of the Company and the Restricted Subsidiaries; provided, however, that such declarations, payments and dividends shall not to exceed $0.05 per share1.5 million in any fiscal year.
(8) payments under the Services Agreement and/or Trademark and Licensing Agreement;
(viii) additional Restricted Payments not to exceed $150.0 million after August 27, 2012;
(ix9) the redemption, repurchase of the Company’s Equity Interests in an amount not to exceed $50.0 million after August 27, 2012;
(x) distributions or payments of Securitization Fees and purchases of Securitization Assets pursuant to a Securitization Repurchase Obligation in connection with a Qualified Securitization Financing;
(xi) any payments made in connection with the consummation of the transactions on substantially the terms described in the Offering Memorandum;
(xii) the payment of intercompany subordinated debt, the incurrence of which was permitted under Section 4.09(b)(vi);
(xiii) the purchase of fractional shares by the Company upon conversion of any securities of the Company into Capital Interests of the Company;
(xiv) the repurchase, redemption or other acquisition or retirement of, or any distributions or dividends to the Parent to effect the redemption, repurchase, acquisition or retirement of, any Equity Interests or Indebtedness of the Company or the Parent to the extent required by any Gaming Authority; provided, however, that, no such Restricted Payment shall be made if at the time of and after giving effect to such Restricted Payment a Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof unless (i) the ownership of such Equity Interests or Indebtedness will preclude, interfere with, threaten or delay the issuance, maintenance, existence or reinstatement of any material Gaming License and (ii) so long as such efforts do not jeopardize a material Gaming License, the Company or the Parent shall have diligently sought a third-party purchaser for value such Equity Interests or Indebtedness and no third-party purchaser acceptable to the relevant Gaming Authority was willing to purchase such Equity Interests or Indebtedness within a time period acceptable to such Gaming Authority;
(10) payments under any indemnification agreements with the members of subordinated Indebtedness the Board of Directors of the Parent (other than any payments under indemnification agreements included in the definition of “Tax Distributions” hereunder);
(11) for so long as the Company is a partnership or Disqualified Interests substantially similar pass-through entity for U.S. federal income tax purposes, any Tax Distributions;
(12) proceeds to fund any “Special Dividend” pursuant to the provisions similar to those described under Section 4.14 and Section 4.10; provided that all Notes tendered by Holders Article IV.D.3 of the Notes Parent’s Restated Certificate of Incorporation as in effect as of the Issue Date, to the extent that there are insufficient funds at the Parent to fund all or a portion of such Special Dividend;
(13) distributions of the World’s Fair Site Sale Proceeds; and
(14) proceeds to fund payments (including with respect to claims, fees, expenses, cure amounts and reserves) under or in connection with the related Change Plan or the Cases; provided, however, that at the time of, and after giving effect to, any Restricted Payment permitted under clauses (4), (5), (6), (7)(B), (7)(C), (11) and (12) above, no Default or Event of Control Offer Default shall have occurred and be continuing or Asset Sale Offer, would occur as applicable, have been repurchased, redeemed or acquired for value in full; and
(xv) payment of dividends on Disqualified Interests of the Company or a Restricted Subsidiary, the issuance of which is permitted by this Indentureconsequence thereof.
(c) The Company will not permit any Unrestricted Subsidiary to become a Restricted Subsidiary except pursuant to the last sentence of the definition of “Unrestricted Subsidiary.” For purposes of designating any Restricted Subsidiary as an Unrestricted Subsidiary, all outstanding Investments by the Company and the Restricted Subsidiaries (except to the extent repaid) in the Subsidiary so designated will be deemed to be Restricted Payments in an amount determined as set forth in the last sentence of the definition of “Investment.” Such designation will be permitted only if a Restricted Payment in such amount would be permitted at such time, whether pursuant to paragraph (a) of this Section 4.10 or under clause (8) of the definition of “Permitted Investments” hereunder or otherwise pursuant to the definition of “Permitted Investments” hereunder, and if such Subsidiary otherwise meets the definition of an Unrestricted Subsidiary.
(d) 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) assets, property 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 Section 4.10 in excess of $10.0 million will be determined in good faith by the Board of Directors of TER and evidenced by a Board Resolution and, in the case of any assets or securities with a Fair Market Value in excess of $20.0 million, based upon a fairness opinion or appraisal issued by an officer accounting, appraisal or investment banking firm of the Companynational standing. In the event that a Restricted Payment meets the criteria of more Other than one of the exceptions with respect to any payment described in clauses (i1) through (xv14) above or is entitled to be made pursuant of paragraph (b) of this Section 4.10, no later than the date of making any Restricted Payment, the Issuers will deliver to the first paragraph of this covenant, the Company may, in its sole discretion, classify, and may later reclassify from time to time, 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 Board Resolution or any portion thereof into fairness opinion or among any of such applicable provisionsappraisal required hereunder.
Appears in 1 contract
Samples: Indenture (Trump Entertainment Resorts Holdings Lp)
Restricted Payments. (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly:
(i) declare or pay (without duplication) 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 (A) dividends dividends, payments or distributions accrued or (x) payable in Equity Interests (other than Disqualified InterestsStock) of the Company or (By) 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 the Company (Restricted Subsidiary thereof held by Persons other than any such Equity Interests owned by the Company or any of its Wholly Owned Restricted Subsidiary of the Company)Subsidiaries;
(iii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness that is subordinated to the Notes or any the Note Guarantee (other than Indebtedness permitted under clause (vi) of the definition of “Permitted Debt”) Guarantees, except (a) a payment of interest or principal at the Stated Maturity thereof or (b) the purchase, repurchase repurchase, redemption, defeasance or other acquisition or retirement of any such Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case, case due within one year of the date of such purchase, repurchase repurchase, redemption, defeasance or other acquisitionacquisition or retirement; or
(iv) make any Restricted Investment (all such payments and other actions set forth in clauses (iSection 4.07(a)(i) through (iii) above and this clause (iv) 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 Incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.09(a); and
(C) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries commencing on and after August 27January 30, 2012 2011 (excluding Restricted Payments permitted by clauses (i) (provided that at the time of declaring such dividend, such dividend was counted as a Restricted Payment) (ii2), (iii3), (iv4), (v), (vi), (vii), (viii), (ix), (x), (xi), (xii), (xiii), (xiv5) and (xv6) of Section 4.07(b)), is less than the sum, without duplication, of:
(1) 50% of the Consolidated Net Income of the Company for the period (taken as one accounting period) from April 2commencing on and after January 30, 2012 2011 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
(2) 100% of the aggregate net proceeds, including cash proceeds or the fair market value Fair Market Value of any property or Capital Interests, other than cash received by the Company since August 27January 30, 2012 2011 as a contribution to its common equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified InterestsStock) of the Company or from the issue or sale Incurrence of Disqualified Interests or debt securities Indebtedness of the Company that have has been converted into or exchanged for such Equity Interests (other than Equity Interests (sold to, or Disqualified Interests or convertible debt securities) sold to Indebtedness held by, a Subsidiary of the Company), together with the aggregate cash and Cash Equivalents received by the Company or any of its Restricted Subsidiaries at the time of such conversion or exchange plus the amount by which Indebtedness of the Company and its Restricted Subsidiaries is reduced upon the conversion or exchange subsequent to August 27, 2012 of any Indebtedness or Disqualified Interests which are convertible into or exchangeable for Qualified Capital Interests of the Company or any of its Restricted Subsidiaries, plus
(3) 100% of the amount received, including the fair market value of any property received after August 27, 2012 by means of (A) the sale or other disposition (other than with respect to the Company or a Restricted Subsidiary) of Restricted Investments made by the Company or its Restricted Subsidiaries and repurchases and redemptions of such Restricted Investments from the Company or its Restricted Subsidiaries and repayments of loans or advances which constitute Restricted Investments of the Company or its Restricted Subsidiaries or (B) the sale (other than to the Company or a Restricted Subsidiary) of the Capital Interests of an Unrestricted Subsidiary or a distribution from an Unrestricted Subsidiary (other than in each case to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment) or a dividend from an Unrestricted Subsidiary, plus
(4) in the case of the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary or the merger or consolidation of an Unrestricted Subsidiary into the Company or a Restricted Subsidiary or the transfer of assets of an Unrestricted Subsidiary to the Company or a Restricted Subsidiary, the fair market value of the Investment in such Unrestricted Subsidiary (other than an Unrestricted Subsidiary to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment), plus
(5) $141.0 million. The Board of Directors 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 in the Subsidiary so designated will be deemed to be Restricted Payments or Permitted Investmentscommencing on and after January 30, in the Company’s discretion2011, at the time of such designation and will reduce the amount available for Restricted Payments or Permitted Investments, as applicable. 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 net reduction in such Restricted Payments Investments in any Person resulting from repayments of loans or Permitted Investments would be permitted at such time and if advances, or other transfers of assets, in each case to the Company or any Restricted Subsidiary or from the net cash proceeds from the sale of any such Restricted Investment (except, in each case, to the extent any such payment or proceeds are included in the calculation of Consolidated Net Income), from the release of any Guarantee (except to the extent any amounts are paid under such Guarantee) or from redesignations of Unrestricted Subsidiaries as Restricted Subsidiaries, not to exceed, in each case, the amount of Restricted Investments previously made by the Company or any Restricted Subsidiary otherwise meets the definition of an in such Person or Unrestricted SubsidiarySubsidiary commencing on and after January 30, 2011.
(b) Section 4.07(a) shall not prohibit, so long as, in the case of Section 4.07(b)(7), (8), (9) and (11), no Default has occurred and is continuing or would be caused thereby:
(i1) the payment of any dividend or other distribution or redemption within 60 days after the date of declaration or call for redemption thereof, if at said date of declaration or call for redemption such payment would have complied with the provisions of this Indenture;
(ii2) the making payment of any dividend by a Restricted Payment Subsidiary of the Company to the holders of its Common Stock on a pro rata basis;
(3) 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 in exchange for, or out of the net cash proceeds of a contribution to the common equity of the Company or a substantially concurrent sale (other than to a Subsidiary of the Company) of, Equity Interests of the Company (other than any Disqualified InterestsStock) or from a contribution of capital to the Company; provided 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 Section 4.07(a)(C)(2);
(4) the repayment, defeasance, redemption, repurchase or other acquisition of subordinated Indebtedness of the Company or any Guarantor with the net cash proceeds from an Incurrence of Permitted Refinancing Indebtedness;
(5) Investments acquired as a capital contribution to, or in exchange for, or out of the net cash proceeds of a substantially concurrent offering of, Equity Interests (other than Disqualified Stock) of the Company; provided that the amount of any such net cash proceeds that are utilized for any such acquisition or exchange shall be excluded from Section 4.07(a)(C)(2);
(iii6) the defeasancepurchase, repurchase, redemption, acquisition or retirement for value of any Capital Stock of the Company upon the exercise of warrants, options or similar rights if such Capital Stock constitutes all or a portion of the exercise price or is surrendered in connection with satisfying any federal or state income tax obligation incurred in connection with such exercise; provided that no cash payment in respect of such purchase, repurchase, replacementredemption, extensionacquisition, renewal, refinancing or retirement or other acquisition of subordinated Indebtedness exercise shall be made by the Company or Disqualified Interests in exchange for or with the net cash proceeds from an incurrence of Permitted Refinancing Indebtednessany Restricted Subsidiary thereof;
(iv) the declaration, or payment of any dividend or other distribution by a Subsidiary of the Company to the holders of its common Equity Interests on a pro rata basis;
(v7) 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 current or former employee, officer, director, employee, director or consultant or agent of the Company (or any of its Restricted Subsidiaries (Subsidiaries) or Heirs their respective estates, spouses, former spouses or other permitted transferees thereof) upon deathfamily members pursuant to the terms of any employee equity subscription agreement, disability, retirement, severance or termination of employment or service or in connection with a stock option plan or agreement, shareholders agreement, agreement or similar agreement, plan or arrangement, including amendments theretoagreement entered into in the ordinary course of business; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may not exceed: (A) $10.0 million in any calendar year, with unused amounts being available to be used in any later calendar year; provided that such amount in any calendar fiscal year may be increased in an amount will not to exceed the net cash proceeds from the sale of Equity Interests (other than Disqualified Interests) of the Company to any officer, director, employee or agent of the Company or any Subsidiary of the Company that occurs after the date of this Indenture, to the extent such net cash proceeds have not otherwise been applied to make Restricted Payments pursuant to Section 4.07(a)(C)(2); plus (B) the cash proceeds of key man life insurance policies received by the Company and its Restricted Subsidiaries after the date of this Indenture that are used for the repurchase, redemption or other acquisition or retirement for value owned by the individual (or such individual’s estate) that is the subject of such insurance$5.0 million;
(vi) the repurchase of Equity Interests deemed to occur upon the exercise of options, warrants or other convertible securities to the extent such Equity Interests represent a portion of the exercise price of those options, warrants or other convertible securities and cash payments in lieu of the issuance of fractional shares in connection with the exercise of options, warrants, or other convertible securities;
(vii) 8) the declaration and payment of regular quarterly cash dividends on the Company’s Equity Interests in accordance with past practice issued and not to exceed $0.05 per share;
(viii) additional Restricted Payments not to exceed $150.0 million after August 27, 2012;
(ix) the repurchase of the Company’s Equity Interests outstanding Common Stock in an amount not to exceed $50.0 0.56 per share (as adjusted for stock splits and similar transactions after the Issue Date) per fiscal year; provided that the aggregate amount of all dividends declared or paid pursuant to this Section 4.07(b)(8) shall not exceed $25.0 million after August 27, 2012in any fiscal year;
(x) distributions or payments of Securitization Fees and purchases of Securitization Assets pursuant to a Securitization Repurchase Obligation in connection with a Qualified Securitization Financing;
(xi) any payments made in connection with the consummation of the transactions on substantially the terms described in the Offering Memorandum;
(xii) the payment of intercompany subordinated debt, the incurrence of which was permitted under Section 4.09(b)(vi);
(xiii) the purchase of fractional shares by the Company upon conversion of any securities of the Company into Capital Interests of the Company;
(xiv9) the repurchase, redemption or other acquisition or retirement for value of subordinated Indebtedness any Equity Interests of the Company (including, without limitation, open market purchases) in an aggregate amount not to exceed $30.0 million in any fiscal year;
(10) the payment of cash in lieu of the issuance of fractional shares of Equity Interests upon conversion or Disqualified exchange of securities convertible into or exchangeable for Equity Interests pursuant to of the provisions similar to those described under Section 4.14 and Section 4.10Company; provided that all Notes tendered any such cash payment shall not be for the purpose of evading the limitations of this covenant (as determined in good faith by Holders the Board of Directors of the Notes in connection with the related Change of Control Offer or Asset Sale Offer, as applicable, have been repurchased, redeemed or acquired for value in fullCompany); and
(xv11) payment of dividends on Disqualified Interests of other Restricted Payments not otherwise permitted pursuant to this Section 4.07 in an aggregate principal amount since the Company or a Restricted Subsidiary, the issuance of which is permitted by this IndentureIssue Date not to exceed $100.0 million.
(c) 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 to or by the Company or such Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall be determined by an officer of the Company. In the event that a Restricted Payment meets the criteria of more than one of the exceptions described in (i) through (xv) above or is entitled to be made pursuant to the first paragraph of this covenant, the Company may, in its sole discretion, classify, and may later reclassify from time to time, such Restricted Payment or any portion thereof into or among any of such applicable provisions.
Appears in 1 contract
Samples: Indenture (Caleres Inc)
Restricted Payments. (a) 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 its 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 (A) dividends or distributions accrued or payable (x) solely in Equity Interests (other than Disqualified InterestsStock) of the Company or (By) dividends or distributions in the case of the Company and its Restricted Subsidiaries, to the Company or a Restricted Subsidiary of the Companythereof);
(iib) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the CompanyCompany or any of its Restricted Subsidiaries) any Equity Interests of the Company or any direct or indirect parent Parent of the Company or any Restricted Subsidiary of the Company (other than than, in the case of the Company and its Restricted Subsidiaries, any such Equity Interests owned by the Company or any of its Restricted Subsidiary of the CompanySubsidiaries);; or
(iiic) 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 (other than intercompany Indebtedness among the Company and its Restricted Subsidiaries that is permitted to be incurred under this Supplemental Indenture) that is subordinated to the Notes or any Note Guarantee (other than Indebtedness permitted under clause (vi) of the definition of “Permitted Debt”) Notes, except (a) a payment of interest or principal at the Stated Maturity or (b) the purchase, repurchase or other acquisition of any such Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case, due within one year of the date of such purchase, repurchase or other acquisition; or
(iv) make any Restricted Investment thereof (all such payments and other actions set forth in clauses (ia) through (ivc) 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 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 Fixed Charge Coverage Leverage Ratio test set forth in the first paragraph of Section 4.09(a)4.10; and
(C3) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries from and after August 27April 1, 2012 2010 (excluding Restricted Payments permitted by clauses (i2) through (provided that 16) of the next succeeding paragraph and made on or after April 1, 2010), shall not exceed, at the time date of declaring such dividenddetermination, such dividend was counted as a Restricted Payment) (ii), (iii), (iv), (v), (vi), (vii), (viii), (ix), (x), (xi), (xii), (xiii), (xiv) and (xv) of Section 4.07(b)), is less than the sum, without duplication, sum of:
(1a) 50an amount equal to 100% of the Consolidated Net Income EBITDA of the Company for the period (taken as one accounting period) from beginning on the first day of the fiscal quarter commencing April 21, 2012 2010 to the end of the Company’s most recently ended full fiscal quarter for which internal financial statements are available at available, taken as a single accounting period, less the time product of such Restricted Payment (or, if such 1.3 times the Consolidated Net Income Interest Expense of the Company for such period is a deficitperiod, less plus
(b) an amount equal to 100% of Capital Stock Sale Proceeds (reduced for purpose of this clause (b) by (A) any amount of such deficitCapital Stock Sale Proceeds (i) used in connection with an Investment made on or after the Issue Date pursuant to clause (5) of the definition of “Permitted Investments,” (ii) applied to make a Restricted Payment pursuant to clause (2) or sub-clause (y)(2) of clause (9) or clause (14) below, or (iii) relied upon for purposes of incurring Contribution Indebtedness and (B) the amount of Restricted Payments made pursuant to sub-clause (A)(i), (B) or (C) of clause (8) and sub-clause (y)(1) of clause (9) below, in each case, by an amount not to exceed the amount of Capital Stock Sale Proceeds from any Charter Subsidiary Refinancing Indebtedness or Charter Parent Refinancing Indebtedness), plus
(2) 100% of the aggregate net proceeds, including the fair market value of any property or Capital Interests, received by the Company since August 27, 2012 as a contribution to its equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified Interests) or from the issue or sale of Disqualified Interests or debt securities of the Company that have been converted into such Equity Interests (other than Equity Interests (or Disqualified Interests or convertible debt securities) sold to a Subsidiary of the Company), together with the aggregate cash and Cash Equivalents received by the Company or any of its Restricted Subsidiaries at the time of such conversion or exchange plus the amount by which Indebtedness of the Company and its Restricted Subsidiaries is reduced upon the conversion or exchange subsequent to August 27, 2012 of any Indebtedness or Disqualified Interests which are convertible into or exchangeable for Qualified Capital Interests of the Company or any of its Restricted Subsidiaries, plus
(3) 100% of the amount received, including the fair market value of any property received after August 27, 2012 by means of (A) the sale or other disposition (other than to the Company or a Restricted Subsidiary) of Restricted Investments made by the Company or its Restricted Subsidiaries and repurchases and redemptions of such Restricted Investments from the Company or its Restricted Subsidiaries and repayments of loans or advances which constitute Restricted Investments of the Company or its Restricted Subsidiaries or (B) the sale (other than to the Company or a Restricted Subsidiary) of the Capital Interests of an Unrestricted Subsidiary or a distribution from an Unrestricted Subsidiary (other than in each case to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment) or a dividend from an Unrestricted Subsidiary, plus
(4) in the case of the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary or the merger or consolidation of an Unrestricted Subsidiary into the Company or a Restricted Subsidiary or the transfer of assets of an Unrestricted Subsidiary to the Company or a Restricted Subsidiary, the fair market value of the Investment in such Unrestricted Subsidiary (other than an Unrestricted Subsidiary to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment), plus
(5c) $141.0 2,000 million. The Board of Directors 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 in the Subsidiary so designated will be deemed to be Restricted Payments or Permitted Investments, in the Company’s discretion, at the time of such designation and will reduce the amount available for Restricted Payments or Permitted Investments, as applicable. 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 Payments or Permitted Investments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary.
(b) Section 4.07(a) preceding provisions shall not prohibit:
(i1) the payment of any dividend or other distribution or redemption within 60 days after the date of declaration or call for redemption thereof, if at said the date of declaration or call for redemption such payment would have complied with the provisions of this Supplemental Indenture;
(ii2) the making redemption, repurchase, retirement, defeasance or other acquisition of any Restricted Payment subordinated Indebtedness of the Company in exchange for, or out of the net cash proceeds of of, the substantially concurrent sale (other than to a Subsidiary of the Company) of, Equity Interests of the Company (other than any Disqualified Interests) or from a contribution of capital to the Company; 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 Section 4.07(a)(C)(2Stock);
(iii3) the defeasance, redemption, repurchase, replacement, extension, renewal, refinancing or retirement repurchase or other acquisition of subordinated Indebtedness of the Company or Disqualified Interests in exchange for or any of its Restricted Subsidiaries with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness;
(iv4) the declaration, or payment of any dividend or other distribution distribution, which need not be pro rata, to the extent necessary to permit any direct or indirect beneficial owners of shares of Capital Stock of the Company to pay federal, state or local income tax liabilities that arise solely from income of the Company or any of its Restricted Subsidiaries, as the case may be, for the relevant taxable period being attributable to them;
(5) the payment of any dividend by a Restricted Subsidiary of the Company to the holders of its common Equity Interests on a pro rata basis;
(v6) the repurchase, redemption or other acquisition or retirement for value value, or the payment of any dividend or distribution to the extent necessary to permit the repurchase, redemption or other acquisition or retirement for value, of any Equity Interests of the Company or any Subsidiary a Parent of the Company held by any current member of the Company’s or former officer, director, employee, consultant such Parent’s management pursuant to any management equity subscription agreement or agent stock option agreement entered into in accordance with the policies of the Company or any of its Restricted Subsidiaries (or Heirs or other permitted transferees thereof) upon death, disability, retirement, severance or termination of employment or service or in connection with a stock option plan or agreement, shareholders agreement, or similar agreement, plan or arrangement, including amendments theretoParent; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may shall not exceed: exceed $50.0 million in any fiscal year of the Issuers;
(7) payment of fees in connection with any acquisition, merger or similar transaction in an amount that does not exceed an amount equal to 1.25% of the transaction value of such acquisition, merger or similar transaction;
(8) (A) $10.0 million in additional Restricted Payments directly or indirectly to any calendar yearParent (i) for the purpose of enabling any Parent to pay interest when due on Indebtedness under any Charter Parent Refinancing Indebtedness or (ii) so long as no Default has occurred and is continuing and the Company would have been permitted, with unused amounts being available to be used in any later calendar year; provided that at the time of such amount in any calendar year may be increased in an amount not to exceed Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the net cash proceeds from the sale of Equity Interests (other than Disqualified Interests) beginning of the Company applicable quarter period, to incur at least $1.00 of additional Indebtedness pursuant to the Leverage Ratio test set forth in the first paragraph of Section 4.10, consisting of dividends or distributions to the extent required to enable any officerParent to defease, directorredeem, employee repurchase, prepay, repay, discharge or agent otherwise acquire or retire for value Indebtedness under any Charter Parent Refinancing Indebtedness (including any expenses and fees incurred by any Parent in connection therewith); (B) so long as no Default has occurred and is continuing, Restricted Payments used to defease, redeem, repurchase, prepay, repay, discharge or otherwise acquire or retire for value Indebtedness under any Charter Parent Refinancing Indebtedness or consisting of purchases, redemptions or other acquisitions by the Company or its Restricted Subsidiaries of Indebtedness under any Subsidiary of the Company that occurs after the date of this Indenture, to the extent such net cash proceeds have not otherwise been applied to make Restricted Payments pursuant to Section 4.07(a)(C)(2); plus Charter Parent Refinancing Indebtedness (B) the cash proceeds of key man life insurance policies received including any expenses and fees incurred by the Company and its Restricted Subsidiaries in connection therewith) and the distribution, loan or investment to any Parent of Indebtedness so purchased, redeemed or acquired, or (C) Restricted Payments for the purpose of enabling any Parent to (i) pay interest when due on Indebtedness under any Charter Subsidiary Refinancing Indebtedness or (ii) to defease, redeem, repurchase, prepay, repay, discharge or otherwise acquire or retire for value Indebtedness under any Charter Subsidiary Refinancing Indebtedness (including any expenses and fees incurred by the Company and its Restricted Subsidiaries in connection therewith);
(9) Restricted Payments directly or indirectly to any Parent regardless of whether a Default exists (other than an Event of Default under paragraph (1), (2), (7) or (8) of Section 6.01), for the purpose of enabling such Person (A) to pay interest on and (B) so long as 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 date beginning of this Indenture the applicable quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Leverage Ratio test set forth in the first paragraph of Section 4.10 to defease, redeem, repurchase, prepay, repay, discharge or otherwise acquire or retire, in each case, Indebtedness of such Parent (x) which is not held by another Parent and (y) to the extent that the net cash proceeds of such Indebtedness are or were used for the repurchase(1) payment of interest or principal (or premium) on any Indebtedness of a Parent (including (A) by way of a tender, redemption or other acquisition or retirement for value owned by the individual (or such individual’s estate) that is the subject prepayment of such insuranceIndebtedness and (B) amounts set aside to prefund any such payment), (2) direct or indirect (including by way of a contribution of property and/or assets purchased with such net cash proceeds) Investment in the Company or any of its Restricted Subsidiaries or (3) payment of amounts that would be permitted to be paid by way of a Restricted Payment under clause (10) immediately below (including the expenses of any exchange transaction);
(vi10) the repurchase Restricted Payments directly or indirectly to any Parent of (A) attorneys’ fees, investment banking fees, accountants’ fees, underwriting discounts and commissions and other customary fees and expenses (including any commitment and other fees payable in connection with Credit Facilities) actually incurred in connection with any issuance, sale or incurrence by such Parent of Equity Interests deemed or Indebtedness, or any exchange of securities or tender for outstanding debt securities, or (B) the costs and expenses of any offer to occur upon the exercise of options, warrants or other convertible exchange privately placed securities to the extent such Equity Interests represent a portion in respect of the exercise price of those options, warrants foregoing for publicly registered securities or other convertible securities and cash payments in lieu of the issuance of fractional shares in connection with the exercise of options, warrants, or other convertible securitiesany similar concept having a comparable purpose;
(vii11) the redemption, repurchase, retirement or other acquisition of any Equity Interests of the Company or Indebtedness of the Issuers or any Equity Interests of any direct or indirect parent of the Company, in exchange for, or out of the proceeds of the substantially concurrent sale (other than to an Issuer or a Restricted Subsidiary) of, Equity Interests of the Company or any direct or indirect parent of the Company (in each case, other than any Disqualified Stock);
(12) the declaration and payment of regular quarterly dividends on to holders of any class or series of Disqualified Stock of the Company’s Equity Interests Issuers or any Restricted Subsidiary issued in accordance with past practice Section 4.10;
(13) so long as no Default has occurred and is continuing, other Restricted Payments in an aggregate amount outstanding taken together with all other Restricted Payments made pursuant to this clause (13) not to exceed $0.05 per share100.0 million outstanding at any one time;
(viii14) additional Restricted Payments not to exceed $150.0 million after August 27, 2012;
(ix) the repurchase pay all or a portion of the Company’s consideration payable for any Investment that would have been permitted to be made by the Issuers under this Supplemental Indenture including, without limitation, the true up payments pursuant to the Bright House Acquisition Agreement; provided that the assets or Equity Interests acquired in an amount not such Investment (to exceed $50.0 million after August 27, 2012;
(x) distributions or payments the extent of Securitization Fees and purchases of Securitization Assets pursuant to a Securitization Repurchase Obligation in connection with a Qualified Securitization Financing;
(xi) any payments made in connection with the consummation of the transactions on substantially the terms described in the Offering Memorandum;
(xii) the payment of intercompany subordinated debt, the incurrence of which was permitted under Section 4.09(b)(vi);
(xiii) the purchase of fractional shares amounts distributed by the Company upon conversion of any securities of Issuers to make such Investment) are promptly contributed to the Company into Capital Interests capital of the Company;
(xiv15) the repurchaseso long as no Default or Event of Default has occurred and is continuing or would result therefrom, redemption or other acquisition or retirement for value of subordinated Indebtedness or Disqualified Interests pursuant to the provisions similar to those described under Section 4.14 and Section 4.10any Restricted Payments; provided that all Notes tendered by Holders of the Notes in connection with the related Change of Control Offer Leverage Ratio, after giving pro forma effect to such Restricted Payment, is less than or Asset Sale Offer, as applicable, have been repurchased, redeemed or acquired for value in fullequal to 3.50:1.00; and
(xv16) payment any distributions to any Parent to permit such Parent to pay (i) attorneys’ fees, investment banking fees, accountants’ fees, underwriting discounts and commissions and other customary fees and expenses (including any commitment and other fees payable in connection with credit facilities) actually incurred in connection with any issuance, sale or incurrence by such Parent of dividends on Disqualified Equity Interests or Indebtedness, any exchange of securities or a tender for outstanding debt securities or any actual or proposed Investment, (ii) the costs and expenses of any offer to exchange privately placed securities in respect of the Company foregoing for publicly registered securities or any similar concept having a Restricted Subsidiarycomparable purpose or (iii) other administrative expenses (including legal, accounting, other professional fees and costs, printing and other such fees and expenses) incurred in the issuance ordinary course of which is permitted by business, in an aggregate amount in the case of this Indenture.
clause (ciii) not to exceed $5.0 million in any fiscal year. 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 Subsidiary, as the case may be, any of its Restricted Subsidiaries 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 covenant shall be determined by an officer the Board of Directors of the Company, whose resolution with respect thereto shall be delivered to the Trustee. In 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 $100.0 million. Not later than the date of making any Restricted Payment other than in the form of cash having a fair market value in excess of $75.0 million, 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 Supplemental Indenture. For purposes of determining compliance with this Section 4.07, in the event that a Restricted Payment meets Payment, when made, met the criteria of more than one of the exceptions categories described in clauses (i1) through (xv16) above above, or is entitled to be made was permitted pursuant to the first paragraph of this covenantSection 4.07, the Company may, in its sole discretion, classify, and may later reclassify from time Issuers will be entitled to time, classify such Restricted Payment (or portion thereof) on the date of its payment or later reclassify such Restricted Payment (or portion thereof) in any portion thereof into or among any of such applicable provisionsmanner that complies with this Section 4.07.
Appears in 1 contract
Samples: First Supplemental Indenture (Charter Communications, Inc. /Mo/)
Restricted Payments. (a) The Company Issuer 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 on account of the CompanyIssuer’s or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any payment in connection with any merger merger, amalgamation or consolidation involving the Company Issuer or any of its Restricted Subsidiaries) or to the direct or indirect holders of the CompanyIssuer’s or any of its Restricted Subsidiaries’ Equity Interests in their capacity as such holders (in each case, other than (A) dividends or distributions accrued or payable in Equity Interests (other than Disqualified InterestsStock) of the Company or (B) Issuer and other than dividends or distributions payable to the Company Issuer 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 merger, amalgamation or consolidation involving the CompanyIssuer) any Equity Interests of the Company Issuer or any direct or indirect parent entity of the Company (other than any such Equity Interests owned by the Company or any Restricted Subsidiary of the Company)Issuer;
(iii) make any principal payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value value, any Indebtedness of the Issuer that is expressly contractually subordinated in right of payment to the Notes (excluding any intercompany Indebtedness between or among the Issuer and any Note Guarantee (other than Indebtedness permitted under clause (vi) of the definition of “Permitted Debt”) its Restricted Subsidiaries), except (aA) a payment of interest or principal at the Stated Maturity thereof or (bB) the purchase, repurchase repurchase, redemption, defeasance or other acquisition of any such Indebtedness purchased in anticipation of satisfying a sinking fund obligation, principal installment or final scheduled maturity, in each case, case due within one year of the date of such purchase, repurchase repurchase, redemption, defeasance or other acquisition; or
(iv) make any Restricted Investment Investment; (all such payments and other actions set forth in these clauses (i(i) through (iv(iv) 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 has occurred and be is continuing or would occur as a consequence thereofof such Restricted Payment;
(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 Fixed Charge Coverage Ratio test set forth in Section 4.09(aSection 4.06(a); and
(C) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company Issuer and its Restricted Subsidiaries after August 27, 2012 since the Issue Date (excluding Restricted Payments permitted by clauses (i(i) (provided that at the time without duplication of declaring such dividend, such dividend was counted as a Restricted Payment) (iiamounts paid pursuant to any other clause of Section 4.08(b)), (iii(ii), (iv(iii), (v(iv), (vi(v), (vii(vi), (viii(vii), (ix(viii), (x(ix), (xi(x), (xii), (xiii), (xiv(xi) and (xv(xii) of Section 4.07(bSection 4.08(b)), is less than the sum, without duplication, of:
(1) 50% of the Consolidated Net Income of the Company Issuer for the period (taken as one accounting period) from April 2, 2012 the first day of the fiscal quarter commencing immediately following the fiscal quarter in which the Issue Date occurs to the end of the CompanyIssuer’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
(2) 100% of the aggregate net proceeds, including cash proceeds and the fair market value Fair Market Value of any property or Capital Interests, other assets received by the Company Issuer since August 27, 2012 the Issue Date as a contribution to its common equity capital or from the issue or sale of Equity Interests of the Company Issuer (other than Disqualified InterestsStock) or from the issue or sale of convertible or exchangeable Disqualified Interests Stock of the Issuer or any Restricted Subsidiary or convertible or exchangeable debt securities of the Company Issuer or any Restricted Subsidiary, in each case that have been converted into such or exchanged for Equity Interests of the Issuer (other than (x) net cash proceeds and marketable securities received from an issuance or sale of Equity Interests (or Interests, Disqualified Interests Stock or convertible or exchangeable debt securities) securities sold to a Subsidiary of the Company)Issuer, together with the aggregate (y) net cash proceeds and Cash Equivalents marketable securities received by the Company from an issuance or any sale of its Restricted Subsidiaries at the time of such conversion or exchange plus the amount by which Indebtedness of the Company and its Restricted Subsidiaries is reduced upon the conversion or exchange subsequent to August 27, 2012 of any Indebtedness or Disqualified Interests which are convertible into or exchangeable Disqualified Stock or convertible or exchangeable debt securities that have been converted into, exchanged or redeemed for Qualified Capital Interests of Disqualified Stock and (z) net cash proceeds and marketable securities to the Company or extent any of its Restricted Subsidiaries, Payment has been made from such proceeds pursuant to Section 4.08(b)(iv)); plus
(3) to the extent that any Restricted Investment that was made after the Issue Date is (i) sold, disposed of or otherwise cancelled, liquidated or repaid, 100% of the aggregate amount received in cash and the Fair Market Value of marketable securities received, including the fair market value of any property received after August 27, 2012 by means of ; or (Aii) the sale or other disposition (other than to the Company or made in an entity that subsequently becomes a Restricted Subsidiary) , 100% of Restricted Investments made by the Company or its Restricted Subsidiaries and repurchases and redemptions Fair Market Value of such Restricted Investments from the Company or its Restricted Subsidiaries and repayments of loans or advances which constitute Restricted Investments Investment as of the Company or its Restricted Subsidiaries or (B) the sale (other than to the Company or date such entity becomes a Restricted Subsidiary) of the Capital Interests of an Unrestricted Subsidiary or a distribution from an Unrestricted Subsidiary (other than in each case to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment) or a dividend from an Unrestricted Subsidiary, ; plus
(4) in to the case extent that any Unrestricted Subsidiary of the redesignation of an Unrestricted Subsidiary Issuer designated as such after the Issue Date is redesignated as a Restricted Subsidiary Subsidiary, or the merger is merged, amalgamated or consolidation of an Unrestricted Subsidiary consolidated into the Company or a Restricted Subsidiary or the transfer of assets of an Unrestricted Subsidiary to the Company Issuer or a Restricted Subsidiary, the fair market value or all of the assets of such Unrestricted Subsidiary are transferred to the Issuer or a Restricted Subsidiary, in each case, after the Issue Date, the Fair Market Value of the Issuer’s Restricted Investment in such Unrestricted Subsidiary as of the date of such redesignation, merger, amalgamation, consolidation or transfer of assets to the extent such Investments reduced the Restricted Payments capacity under this clause (4) and were not previously repaid or otherwise reduced; provided, however, that no amount will be included in Consolidated Net Income of the Issuer for purposes of the preceding clause (1) to the extent that it is included under this clause (4); plus
(other than 5) 100% of any dividends or distributions received by the Issuer or a Restricted Subsidiary after the Issue Date from an Unrestricted Subsidiary to the extent that such dividends or distributions were not otherwise included in the Consolidated Net Income of the Issuer for such period (excluding, for the avoidance of doubt, repayments of, or interest payments in respect of, any Permitted Investment in such Unrestricted Subsidiary constituted a Permitted Investmentpursuant to clause (p) of the definition thereof), ; plus
(56) $141.0 100.0 million. The Board of Directors 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 in the Subsidiary so designated will be deemed to be Restricted Payments or Permitted Investments, in the Company’s discretion, at the time of such designation and will reduce the amount available for Restricted Payments or Permitted Investments, as applicable. 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 Payments or Permitted Investments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary.
(b) Section 4.07(a) shall The preceding provisions will not prohibit:prohibit the following (“Permitted Payments”):
(i) the payment of any dividend or other distribution or the consummation of any redemption within 60 days after the date of declaration of the dividend or call for distribution or giving of the redemption thereofnotice, as the case may be, if at said the date of declaration or call for notice, the dividend or distribution or redemption such payment would have complied with the provisions of this Indenture;
(ii) the making of any Restricted Payment in exchange for, or out of or with the net cash proceeds of the substantially concurrent sale (other than to a Subsidiary of the CompanyIssuer) of, Equity Interests of the Company Issuer or any direct or indirect parent of the Issuer (other than any Disqualified InterestsStock) or from a the substantially concurrent contribution of common equity capital to the CompanyIssuer (other than the substantially concurrent offering of New Exchangeable Notes, as described in the Offering Memorandum); provided that the amount of any such net cash proceeds that are utilized for any such redemptionRestricted Payment will be excluded from Section 4.08(a)(C)(2) and will not be considered to be net cash proceeds from an Equity Offering for purposes of Article Three of this Indenture and Section 6 of the Notes.
(iii) the purchase, repurchase, retirementredemption, defeasance or other acquisition shall be excluded from Section 4.07(a)(C)(2);
(iii) the defeasance, redemption, repurchase, replacement, extension, renewal, refinancing or retirement or other acquisition for value of Indebtedness of the Issuer that is contractually subordinated Indebtedness or Disqualified Interests in exchange for or to the Notes with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness;
(iv) so long as no Default or Event of Default has occurred and is continuing, the declarationpurchase, or payment of any dividend or other distribution 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 Issuer, any direct or indirect parent of the Issuer or any Restricted Subsidiary of the Company held by any current or former officer, director, employeeemployee or consultant of the Issuer, consultant any direct or agent indirect parent of Company the Issuer or any of its Restricted Subsidiaries (or Heirs or other permitted transferees thereof) upon deathpursuant to any equity subscription agreement, disability, retirement, severance or termination of employment or service or in connection with a stock option plan or agreement, shareholders agreementrestricted stock grant, shareholders’ agreement or similar agreement, plan or arrangement, including amendments thereto; provided that the aggregate price paid for all such purchased, repurchased, redeemed, acquired or retired Equity Interests may not exceed: (A) exceed $10.0 million in the aggregate in any calendar year, twelve-month period with unused amounts being carried over to any subsequent twelve-month period subject to a maximum aggregate amount of $20.0 million being available to be used in any later calendar yeartwelve-month period; provided and provided, further, that such amount in any calendar year twelve-month period may be increased in by an amount not to exceed the net cash proceeds from the sale of Equity Interests (other than Disqualified Interests) of the Company to Issuer or any officer, director, employee direct or agent indirect parent of the Company Issuer, in each case, received by the Issuer during such twelve-month period, in each case to members of management, directors or consultants of the Issuer, any direct or indirect parent of the Issuer or any Subsidiary of the Company that occurs after the date of this Indenture, Restricted Subsidiaries to the extent such net the cash proceeds from the sale of such Equity Interests have not otherwise been applied to make the making of Restricted Payments pursuant to Section 4.07(a)(C)(2); plus (BSection 4.08(a)(C)(3) the cash proceeds of key man life insurance policies received by the Company and its Restricted Subsidiaries after the date or clause (ii) of this Indenture that are used for the repurchase, redemption or other acquisition or retirement for value owned by the individual (or such individual’s estate) that is the subject of such insuranceSection 4.08(b);
(viv) the repurchase of Equity Interests deemed to occur upon the exercise of options, warrants stock or other convertible securities share options to the extent such Equity Interests represent a portion of the exercise price of those stock or share options;
(vi) so long as no Default or Event of Default has occurred and is continuing, warrants the declaration and payment of regularly scheduled or accrued dividends to holders of any class or series of Disqualified Stock of the Issuer or any preferred stock or preference shares of any Restricted Subsidiary issued on or after the Issue Date in accordance with Section 4.06;
(vii) payments of cash, dividends, distributions, advances or other convertible securities and Restricted Payments by the Issuer or any of its Restricted Subsidiaries to allow the payment of cash payments in lieu of the issuance of fractional shares in connection with upon (i) the exercise of options, warrants, options or other convertible securities;
warrants or (viiii) the declaration and payment conversion or exchange of regular quarterly dividends on the Company’s Equity Interests in accordance with past practice and not to exceed $0.05 per shareCapital Stock of any such Person;
(viii) additional the payment of any dividend (or, in the case of any partnership or limited liability company, any similar distribution) by a Restricted Payments not Subsidiary to exceed $150.0 million after August 27, 2012the holders of its Equity Interests (other than the Issuer or any Restricted Subsidiary) on no more than a pro rata basis;
(ix) the repurchase making of (i) cash payments made by the Issuer or any of its Restricted Subsidiaries in satisfaction of the Company’s Equity Interests conversion obligation upon conversion of convertible Indebtedness issued in an amount not a convertible notes offering and (ii) any payments by the Issuer or any of its Restricted Subsidiaries pursuant to exceed $50.0 million after August 27the exercise, 2012settlement or termination of any related capped call, hedge, warrant or other similar transactions;
(x) distributions or payments of Securitization Fees and purchases of Securitization Assets pursuant to a Securitization Repurchase Obligation in connection with a Qualified Securitization Financingany Permitted Tax Distributions;
(xi) any dividends or other distributions or payments made (directly or indirectly) to any direct or indirect parent of the Issuer in the ordinary course of business in respect of franchise or similar Taxes and other fees and expenses in connection with the consummation maintenance of its existence and its direct or indirect ownership of the transactions on substantially the terms described in the Offering Memorandum;Issuer; and
(xii) other Restricted Payments in an aggregate amount not to exceed $250.0 million since the payment Issue Date so long as, immediately after giving effect to such Restricted Payment, no Default or Event of intercompany subordinated debt, the incurrence of which was permitted under Section 4.09(b)(vi);
(xiii) the purchase of fractional shares by the Company upon conversion of any securities of the Company into Capital Interests of the Company;
(xiv) the repurchase, redemption or other acquisition or retirement for value of subordinated Indebtedness or Disqualified Interests pursuant to the provisions similar to those described under Section 4.14 Default has occurred and Section 4.10; provided that all Notes tendered by Holders of the Notes in connection with the related Change of Control Offer or Asset Sale Offer, as applicable, have been repurchased, redeemed or acquired for value in full; and
(xv) payment of dividends on Disqualified Interests of the Company or a Restricted Subsidiary, the issuance of which is permitted by this Indenture.
(c) continuing. 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 Issuer or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value For purposes of any non-cash Restricted Payment shall be determined by an officer of the Company. In determining compliance with this covenant, (1) in the event that a proposed Restricted Payment (or portion thereof) meets the criteria of one or more than one categories (or subparts thereof) of the exceptions described in (i) through (xv) above Permitted Payments or Permitted Investments, or is entitled to be made incurred pursuant to the first paragraph of this covenant, the Company may, Issuer will be entitled to classify or reclassify such payment (or portion thereof) based on circumstances existing on the date of such reclassification in its sole discretion, classifyany manner that complies with this covenant, and may later reclassify such payment (or portion thereof) will be treated as having been made pursuant to the first paragraph of this covenant or such clause or clauses (or subparts thereof) in the definition of Permitted Payments or Permitted Investments and (2) the amount of any return of or on capital from time to time, such Restricted Payment or any portion thereof into or among any Investment shall be netted against the amount of such applicable provisionsInvestment for purposes of determining compliance with this covenant.
Appears in 1 contract
Restricted Payments. (a) The Company shall Issuer 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 CompanyIssuer’s or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company Issuer or any of its Restricted Subsidiaries) or to the direct or indirect holders of the CompanyIssuer’s or any of its Restricted Subsidiaries’ Equity Interests in their capacity as such (other than (A) dividends or distributions accrued or payable in Equity Interests (Interests, other than Disqualified Interests) Stock, of the Company or (B) Issuer and other than dividends or distributions payable to the Company Issuer or a Restricted Subsidiary of the CompanyIssuer);
(ii2) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the CompanyIssuer) any Equity Interests of the Company or any direct or indirect parent of the Company (other than any such Equity Interests owned by the Company or any Restricted Subsidiary of the Company)Issuer;
(iii3) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value value, any Indebtedness of the Issuer or any Guarantor that is contractually subordinated to the Notes or to any Note Guarantee (other than excluding any intercompany Indebtedness permitted under clause (vi) between or among the Issuer and any of the definition of “Permitted Debt”) its Restricted Subsidiaries), except (a) a payment of interest or principal at Stated Maturity or (bx) the purchase, repurchase or other acquisition of Indebtedness that is contractually subordinated to the Notes or to any such Indebtedness Note Guarantee, as the case may be, purchased in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case, case due within one year of the date of such purchase, repurchase or other acquisitionacquisition or (y) a payment of interest or principal at the Stated Maturity thereof; or
(iv4) make any Restricted Investment Investment; (all such payments and other actions set forth in these clauses (i1) through (iv4) 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 has occurred and be is continuing or would occur as a consequence thereofof such Restricted Payment;
(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 Fixed Charge Coverage Ratio test set forth in Section 4.09(a)) hereof; and
(C) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company Issuer and its Restricted Subsidiaries after August 27, 2012 since the Issue Date (excluding Restricted Payments permitted by clauses (i2) through (provided that at the time of declaring such dividend, such dividend was counted as a Restricted Payment) (ii), (iii), (iv), (v), (vi), (vii), (viii), (ix), (x), (xi), (xii), (xiii), (xiv) and (xv18) of Section 4.07(b)) hereof), is less than the sum, without duplication, of:
(1i) 50% of the Consolidated Net Income of the Company Issuer for the period (taken as one accounting period) from April 2October 1, 2012 to the end of the CompanyIssuer’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
(2ii) 100% of the aggregate net proceeds, including cash and the fair market value Fair Market Value of any property or Capital Interests, other than cash received by the Company Issuer since August 27, 2012 as a contribution to its equity capital or the Issue Date from the issue or sale of Equity Interests of the Company Issuer (other than Disqualified InterestsStock, Designated Preferred Stock or Excluded Contributions) or from the issue or sale of convertible or exchangeable Disqualified Interests Stock or convertible or exchangeable debt securities of the Company that have been converted into or exchanged for such Equity Interests (other than Equity Interests (or Disqualified Interests Stock or convertible debt securities) sold to a Subsidiary of the CompanyIssuer), together with the aggregate cash and Cash Equivalents received by the Company or any of its Restricted Subsidiaries at the time of such conversion or exchange plus the amount by which Indebtedness of the Company and its Restricted Subsidiaries is reduced upon the conversion or exchange subsequent to August 27, 2012 of any Indebtedness or Disqualified Interests which are convertible into or exchangeable for Qualified Capital Interests of the Company or any of its Restricted Subsidiaries, ; plus
(3iii) 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, 100% of the aggregate amount received in cash and the Fair Market Value of property other than cash received; plus
(iv) to the extent that any Unrestricted Subsidiary of the Issuer designated as such after the Issue Date is redesignated as a Restricted Subsidiary after the Issue Date or has been merged into, consolidated or amalgamated with or into, or transfers or conveys its assets to, the Issuer or a Restricted Subsidiary of the Issuer, 100% of the Fair Market Value of the Issuer’s Investment in such Subsidiary as of the date of such redesignation, combination or transfer (or of the assets transferred or conveyed, as applicable) after deducting any Indebtedness associated with the Unrestricted Subsidiary so designated or combined or any Indebtedness associated with the assets so transferred or conveyed; plus
(v) 100% of any dividends or distributions received by the amount received, including the fair market value of any property received after August 27, 2012 by means of (A) the sale or other disposition (other than to the Company Issuer or a Restricted Subsidiary) of Restricted Investments made by the Company or its Restricted Subsidiaries and repurchases and redemptions of such Restricted Investments from the Company or its Restricted Subsidiaries and repayments of loans or advances which constitute Restricted Investments Subsidiary of the Company or its Restricted Subsidiaries or (B) Issuer after the sale (other than to the Company or a Restricted Subsidiary) of the Capital Interests of an Unrestricted Subsidiary or a distribution Issue Date from an Unrestricted Subsidiary (other than in each case of the Issuer, to the extent the Investment in that such Unrestricted Subsidiary constituted a Permitted Investment) dividends or a dividend from an Unrestricted Subsidiary, plus
(4) distributions were not otherwise included in the case Consolidated Net Income of the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary or the merger or consolidation of an Unrestricted Subsidiary into the Company or a Restricted Subsidiary or the transfer of assets of an Unrestricted Subsidiary to the Company or a Restricted Subsidiary, the fair market value of the Investment in Issuer for such Unrestricted Subsidiary (other than an Unrestricted Subsidiary to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment), plus
(5) $141.0 million. The Board of Directors 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 in the Subsidiary so designated will be deemed to be Restricted Payments or Permitted Investments, in the Company’s discretion, at the time of such designation and will reduce the amount available for Restricted Payments or Permitted Investments, as applicable. 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 Payments or Permitted Investments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiaryperiod.
(b) The provisions of Section 4.07(a) shall hereof will not prohibit:
(i1) the payment of any dividend or other distribution or the consummation of any redemption within 60 days after the date of declaration of the dividend or call for distribution or giving of the redemption thereofnotice, if as the case may be, if, at said the date of declaration or call for notice, the dividend, distribution or redemption such payment would have complied with the provisions of this Indenture;
(ii2) the making of any Restricted Payment 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, Equity Interests of the Company Issuer (other than any Disqualified InterestsStock) or from a the substantially concurrent contribution of common equity capital to the CompanyIssuer; provided that the amount of any such net cash proceeds that are utilized for any such redemption, Restricted Payment will be excluded from clause (a)(C)(ii) of Section 4.07(a) hereof;
(3) the repurchase, retirementredemption, defeasance or other acquisition shall be excluded from Section 4.07(a)(C)(2);
(iii) the defeasance, redemption, repurchase, replacement, extension, renewal, refinancing or retirement for value of Indebtedness of the Issuer or other acquisition of any Restricted Subsidiary that is contractually subordinated Indebtedness to the Notes or Disqualified Interests in exchange for or to any Note Guarantee with the net cash proceeds from an a substantially concurrent incurrence of Permitted Refinancing Indebtedness;
(iv4) the declaration, or payment of any dividend or other distribution Restricted Payment made by a Restricted Subsidiary of the Company Issuer to the holders of its common Equity Interests on a pro rata basis;
(v5) the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company Issuer or any Restricted Subsidiary of the Company Issuer held by any current or former officer, director, employee, consultant or agent employee of Company the Issuer or any of its Restricted Subsidiaries (or Heirs or other permitted transferees thereof) upon deathpursuant to the requirements of any equity subscription agreement, disability, retirement, severance or termination of employment or service or in connection with a stock option plan or agreement, shareholders employment agreement, shareholders’ or members’ agreement or similar agreement, plan or arrangement, including amendments thereto; provided that arrangement or otherwise in the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may not exceed: (A) $10.0 million in any calendar year, with unused amounts being available to be used in any later calendar year; provided that such amount in any calendar year may be increased in an amount not to exceed the net cash proceeds from the sale ordinary course of Equity Interests (other than Disqualified Interests) of the Company to any officer, director, employee or agent of the Company or any Subsidiary of the Company that occurs after the date of this Indenture, to the extent such net cash proceeds have not otherwise been applied to make Restricted Payments pursuant to Section 4.07(a)(C)(2); plus (B) the cash proceeds of key man life insurance policies received by the Company and its Restricted Subsidiaries after the date of this Indenture that are used for the repurchase, redemption or other acquisition or retirement for value owned by the individual (or such individual’s estate) that is the subject of such insurancebusiness;
(vi6) the repurchase of Equity Interests deemed to occur upon the exercise of options, stock options or warrants or other convertible securities to the extent such Equity Interests represent a portion of the exercise price of those options, warrants stock options or other convertible securities and cash payments in lieu of the issuance of fractional shares in connection with the exercise of options, warrants, or other convertible securities;
(vii7) the declaration and payment of regular quarterly regularly scheduled or accrued dividends or distributions to holders of any class or series of Disqualified Stock of the Issuer or any Restricted Subsidiary of the Issuer issued on or after the Company’s Equity Interests Issue Date in accordance with past practice and not to exceed $0.05 per sharethe Fixed Charge Coverage Ratio test described in Section 4.09(a) hereof;
(viii) additional 8) Restricted Payments not to exceed $150.0 million after August 27, 2012;
(ix) the repurchase arising as a result of the Company’s Equity Interests in an amount not to exceed $50.0 million after August 27, 2012;
(x) distributions or payments of Securitization Fees and purchases of Securitization Assets pursuant to a Securitization Repurchase Obligation in connection with a Qualified Securitization Receivables Financing;
(xi9) the declaration and payment of dividends or other distributions to holders of any payments made in connection with class or series of Designated Preferred Stock (other than Disqualified Stock) issued after the consummation Issue Date; provided, however, that for the most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date of issuance of such Designated Preferred Stock, after giving effect to such issuance (and the transactions payment of dividends or distributions) on substantially a pro forma basis, the terms described in Issuer could incur an additional $1.00 of Indebtedness pursuant to the Offering MemorandumFixed Charge Coverage Ratio;
(xii10) Investments that are made with Excluded Contributions;
(11) the satisfaction of change of control obligations once the Issuer has fulfilled its obligations under this Indenture with respect to a Change of Control;
(12) the repayment of intercompany Indebtedness that was permitted to be incurred under this Indenture;
(13) the payment of intercompany subordinated debtdividends, distributions on or the repurchase of, the incurrence Issuer’s common equity of which was up to $50 million per calendar year (with unused amounts in any calendar year being permitted under Section 4.09(b)(vito be carried over for the next succeeding calendar year up to a maximum of $100 million in any calendar year); provided, however, that at the time of, and after giving effect to, such Restricted Payment, no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof;
(xiii14) the purchase repurchase, redemption, defeasance or other acquisition or retirement for value of Indebtedness of the Issuer or any Restricted Subsidiary that is contractually subordinated to the Notes or to any Note Guarantee with any Excess Proceeds that remain after consummation of an Asset Sale Offer;
(15) cash payments in lieu of fractional shares by issuable as dividends on preferred stock, upon the Company exercise of any warrants or options or upon the conversion of any convertible debt securities of the Company into Capital Interests Issuer or any of the Companyits Restricted Subsidiaries;
(xiv16) the repurchase, redemption or other acquisition or retirement for value of subordinated Indebtedness Disqualified Stock of the Issuer or any Restricted Subsidiary of the Issuer made by exchange for, or out of the proceeds of, the substantially concurrent sale of Disqualified Interests Stock that is permitted to be incurred pursuant to Section 4.09 hereof;
(17) the provisions similar distribution, as a dividend or otherwise, of shares of Capital Stock of, or Indebtedness owed to those described under Section 4.14 and Section 4.10; provided that all Notes tendered by Holders the Issuer or a Restricted Subsidiary of the Notes in connection with the related Change of Control Offer or Asset Sale OfferIssuer by, as applicable, have been repurchased, redeemed or acquired for value in fullUnrestricted Subsidiaries; and
(xv18) payment other Restricted Payments in an aggregate amount not to exceed $200 million since the Issue Date; provided, however, that at the time of, and after giving effect to, such Restricted Payment, no Default or Event of dividends on Disqualified Interests of the Company Default shall have occurred and be continuing or would occur as a Restricted Subsidiary, the issuance of which is permitted by this Indentureconsequence thereof.
(c) 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 Issuer or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value .
(d) For purposes of any non-cash Restricted Payment shall be determined by an officer of determining compliance with the Company. In provisions set forth above, in the event that a Restricted Payment meets the criteria of more than one of the exceptions types of Restricted Payments described in (i) through (xv) the above or is entitled to be made pursuant to the first paragraph of this covenantclauses, the Company mayIssuer, in its sole discretion, may order and classify, and may later reclassify from time to timetime may reorder and reclassify, such Restricted Payment or if it would have been permitted at the time such Restricted Payment was made and at the time of any portion thereof into or among any of such applicable provisionsreclassification.
Appears in 1 contract
Samples: Indenture (Walter Energy, 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 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 (A) dividends or distributions accrued or payable in Equity Interests (other than Disqualified InterestsStock) of the Company or (B) and other than dividends or distributions 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 the Company (other than any such Equity Interests owned by the Company or any Restricted Subsidiary of the Company);
(iii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value value, any Indebtedness of any Loan Party that is contractually subordinated to all of the Revolving Facility, the Guarantees given pursuant to the Loan Document Guarantee, the Senior Notes or and any Note Guarantee Guarantees (other than excluding (x) any intercompany Indebtedness permitted under clause (vi) between or among the Company and any of the definition of “Permitted Debt”) except (a) a payment of interest or principal at Stated Maturity its Restricted Subsidiaries or (by) the purchase, repurchase or other acquisition of Indebtedness that is contractually subordinated to the Revolving Facility, the Guarantees given pursuant to the Loan Document Guarantee, the Senior Notes and any such Indebtedness Note Guarantee, as the case may be, purchased in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case, case due within one year of the date of such purchase, repurchase or other acquisition), except a payment of interest or principal at the Stated Maturity thereof; or
(iv) make any Restricted Investment Investment; (all such payments and other actions set forth in these clauses (i) through to (iv) 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 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 Fixed Charge Coverage Ratio test set forth in Section 4.09(a6.02(a); and
(C) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after August 27, 2012 since the Issue Date (excluding Restricted Payments permitted by clauses (i) (provided that at the time of declaring such dividend, such dividend was counted as a Restricted Payment) (iiSection 6.01(b)(ii), (iii), (iv), (v), (vi), (vii), (viii), (ix), (x), (xi), (xii), (xiii), (xiv) and (xv) of Section 4.07(b)), below) is less than the sum, without duplication, of:
(1) 50% of the Consolidated Net Income of the Company for the period (taken as one accounting period) from April 2, 2012 beginning on the first day of the Company’s fiscal quarter in which the Issue Date occurred 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
(2) 100% of the aggregate net proceeds, including cash and the fair market value Fair Market Value of any property or Capital Interestsother than cash, received by the Company since August 27, 2012 the Issue Date (x) as a contribution to its common equity capital or (y) from the issue or sale of Equity Interests of the Company or any direct or indirect parent company of the Company (other than Disqualified InterestsStock, Designated Preferred Stock, Excluded Contributions or Cash Contributions) or from the issue or sale of convertible or exchangeable Disqualified Interests Stock or convertible or exchangeable debt securities of the Company that have been converted into or exchanged for such Equity Interests (other than Equity Interests (or Disqualified Interests Stock or convertible debt securities) sold to a Subsidiary of the Company), together with the aggregate cash and Cash Equivalents received by the Company or any of its Restricted Subsidiaries at the time of such conversion or exchange plus the amount by which Indebtedness of the Company and its Restricted Subsidiaries is reduced upon the conversion or exchange subsequent to August 27, 2012 of any Indebtedness or Disqualified Interests which are convertible into or exchangeable for Qualified Capital Interests of the Company or any of its Restricted Subsidiaries, ; plus
(3) 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, 100% of the aggregate amount received, including received in cash and the fair market value Fair Market Value of any property received after August 27, 2012 by means of (A) the sale or other disposition (other than to the Company or a Restricted Subsidiary) of Restricted Investments made by the Company or its Restricted Subsidiaries and repurchases and redemptions of such Restricted Investments from the Company or its Restricted Subsidiaries and repayments of loans or advances which constitute Restricted Investments of the Company or its Restricted Subsidiaries or (B) the sale (other than to the Company or a Restricted Subsidiary) of the Capital Interests of an Unrestricted Subsidiary or a distribution from an Unrestricted Subsidiary (other than in each case to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment) or a dividend from an Unrestricted Subsidiary, cash received; plus
(4) in to the case extent that any Unrestricted Subsidiary of the redesignation of an Unrestricted Subsidiary Company designated as such after the Issue Date is redesignated as a Restricted Subsidiary after the Issue Date or the merger has been merged into, consolidated or consolidation of an Unrestricted Subsidiary into amalgamated with or into, or transfers or conveys its assets to, the Company or a Restricted Subsidiary of the Company, 100% of the Fair Market Value of the Company’s Investment in such Subsidiary as of the date of such redesignation, combination or transfer (or of the transfer of assets of an transferred or conveyed, as applicable) after deducting any Indebtedness associated with the Unrestricted Subsidiary to so designated or combined or any Indebtedness associated with the assets so transferred or conveyed; plus
(5) 100% of any dividends or distributions received by the Company or a Restricted Subsidiary, the fair market value Subsidiary of the Investment in such Unrestricted Subsidiary (other than Company after the Issue Date from an Unrestricted Subsidiary of the Company, to the extent that such dividends or distributions were not otherwise included in the Investment in such Unrestricted Subsidiary constituted a Permitted Investment), plus
(5) $141.0 million. The Board Consolidated Net Income of Directors 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 in the Subsidiary so designated will be deemed to be Restricted Payments or Permitted Investments, in the Company’s discretion, at the time of for such designation and will reduce the amount available for Restricted Payments or Permitted Investments, as applicable. 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 Payments or Permitted Investments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiaryperiod.
(b) Section 4.07(a) shall The preceding provisions will not prohibit:
(i) the payment of any dividend or other distribution or the consummation of any redemption within 60 days after the date of declaration of the dividend or call for distribution or giving of the redemption thereofnotice, if as the case may be, if, at said the date of declaration or call for notice, the dividend, distribution or redemption such payment would have complied with the provisions of this IndentureAgreement;
(ii) the making of any Restricted Payment in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Subsidiary of the Company) of, Equity Interests of the Company or any direct or indirect parent company of the Company (other than any Disqualified InterestsStock) or from a 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 redemption, repurchase, retirement, defeasance or other acquisition shall Restricted Payment will be excluded from Section 4.07(a)(C)(2)clause (C)(3) of the preceding paragraph;
(iii) the defeasancerepurchase, redemption, repurchase, replacement, extension, renewal, refinancing or retirement defeasance or other acquisition or retirement for value of Indebtedness of the Company or any Restricted Subsidiary that is contractually subordinated Indebtedness or Disqualified Interests in exchange for or to the Revolving Facility, the Guarantees given pursuant to the Loan Document Guarantee, the Senior Notes and any Note Guarantees with the net cash proceeds from an a substantially concurrent incurrence of Permitted Refinancing Indebtedness;
(iv) the declaration, or payment of any dividend (or, in the case of any partnership or other distribution limited liability company, any similar 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 (or dividends or distributions to any direct or indirect parent company of the Company to finance any such repurchase, redemption or other acquisition or retirement) for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company or any direct or indirect parent company of the Company held by any current or former officer, director, employee, consultant or agent employee of the Company or any of its Restricted Subsidiaries (or Heirs any direct or other permitted transferees thereof) upon deathindirect parent company of the Company pursuant to any equity subscription agreement, disability, retirement, severance or termination of employment or service or in connection with a stock option plan or agreement, shareholders agreement, shareholders’ or members’ agreement or similar agreement, plan or arrangement, including amendments thereto; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may not exceed: (A) exceed $10.0 million in any calendar year, year (which shall increase to $20.0 million subsequent to the consummation of an underwritten public Equity Offering by the Initial Borrower or any of its direct or indirect Company entities) (with unused amounts in any calendar year being available permitted to be used in any later carried over for the two succeeding calendar yearyears); provided further, that such the amount in any calendar year may be increased in by an amount not to exceed exceed:
(A) the net cash proceeds received by the Company or any of its Restricted Subsidiaries from the sale of Equity Interests (other than Disqualified InterestsStock) of the Company to any officer, director, employee or agent of the Company or any Subsidiary direct or indirect parent company of the Company (to the extent contributed to the Company) to members of management, directors or consultants of the Company and its Restricted Subsidiaries or any direct or indirect parent company of the Company that occurs after the date Closing Date (provided that the amount of this Indenture, to the extent such net cash proceeds have utilized for any such repurchase, retirement, other acquisition, or dividend or distribution will not otherwise been applied to make increase the amount available for Restricted Payments pursuant to Section 4.07(a)(C)(2)under clause (C) of the immediately preceding paragraph; plus plus
(B) the cash proceeds of key man life insurance policies received by the Company or any direct or indirect parent company of the Company (to the extent contributed to the Company) and its Restricted Subsidiaries after the date Closing Date; (provided that the Company may elect to apply all or any portion of this Indenture that are used for the repurchase, redemption or other acquisition or retirement for value owned aggregate increase contemplated by the individual clauses (or such individual’s estateA) that is the subject of such insuranceand (B) above in any single calendar year);
(vi) the repurchase of Equity Interests deemed to occur upon the exercise of options, stock options or warrants or other convertible securities to the extent such Equity Interests represent a portion of the exercise price of those options, warrants stock options or other convertible securities and cash payments in lieu of the issuance of fractional shares in connection with the exercise of options, warrants, or other convertible securities;
(vii) the declaration and payment of regular quarterly regularly scheduled or accrued dividends or distributions to holders of any class or series of Disqualified Stock of the Company or any Restricted Subsidiary of the Company issued on or after the Company’s Equity Interests Closing Date in accordance with past practice and not to exceed $0.05 per sharethe Fixed Charge Coverage Ratio test described under Section 6.02;
(viii) additional Restricted Permitted Payments not to exceed $150.0 million after August 27, 2012Parent;
(ix) the repurchase of the Company’s Equity Interests in an amount not to exceed $50.0 million after August 27, 2012;
(x) distributions or payments of Securitization Fees and purchases of Securitization Assets receivables pursuant to a Securitization Receivables Repurchase Obligation in connection with a Qualified Securitization Receivables Financing;
(x) the declaration and payment of dividends or distributions to holders of any class or series of Designated Preferred Stock (other than Disqualified Stock) issued after the Closing Date and the declaration and payment of dividends to any direct or indirect parent company of the Company, the proceeds of which will be used to fund the payment of dividends or distributions to holders of any class or series of Designated Preferred Stock (other than Disqualified Stock) of any direct or indirect parent company of the Company issued after the Closing Date; provided, however, that (A) for the most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date of issuance of such Designated Preferred Stock, after giving effect to such issuance (and the payment of dividends or distributions) on a pro forma basis, the Company could incur an additional $1.00 of Indebtedness pursuant to the Fixed Charge Coverage Ratio, and (B) the aggregate amount of dividends declared and paid pursuant to this clause (10) does not exceed the net cash proceeds actually received by the Company (including any such proceeds contributed to the Company by any direct or indirect parent company of the Company) from any such sale of Designated Preferred Stock (other than Disqualified Stock) issued after the Closing Date;
(xi) any payments made in connection with the consummation of the transactions on substantially initial offering of the terms described in the Offering MemorandumSenior Notes;
(xii) Restricted Payments in an aggregate amount equal to the payment amount of intercompany subordinated debt, Excluded Contributions previously received by the incurrence of which was permitted under Section 4.09(b)(vi)Company and its Restricted Subsidiaries;
(xiii) other Restricted Payments in an aggregate amount not to exceed $40.0 million since the purchase of fractional shares by the Company upon conversion of any securities of the Company into Capital Interests of the CompanyClosing Date;
(xiv) the repurchase, redemption satisfaction of change of control obligations and asset sale obligations once the Borrower has fulfilled its obligations under the Revolving Facility and the Senior Notes with respect to a Change of Control or an Asset Sale;
(xv) the repayment of intercompany debt that was permitted to be incurred under this Agreement;
(xvi) cash dividends or other acquisition distributions on the Company’s Capital Stock used to, or retirement for value the making of subordinated Indebtedness loans to any direct or Disqualified Interests pursuant indirect parent of the Company to, fund the payment of fees and expenses owed by the Company or its Restricted Subsidiaries to Affiliates, to the provisions similar to those described extent permitted by Section 6.07 (other than under Section 4.14 and Section 4.106.07(b)(vi));
(xvii) the payment of dividends or distributions on the Company’ 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 all Notes tendered by Holders the amount of any such net cash proceeds that are utilized for any such Restricted Payment will be excluded from clause (C)(3) of the Notes in connection with the related Change of Control Offer or Asset Sale Offer, as applicable, have been repurchased, redeemed or acquired for value in fullpreceding paragraph; and
(xvxviii) payment the distribution, as a dividend or otherwise, of dividends on Disqualified Interests shares of Capital Stock of, or Indebtedness owed to the Company or a Restricted SubsidiarySubsidiary of the Company by, Unrestricted Subsidiaries; provided, however, that at the issuance time of, and after giving effect to, any Restricted Payment permitted under clauses (x) or (xvii), no Default or Event of which is permitted by this IndentureDefault shall have occurred and be continuing or would occur as a consequence thereof.
(c) 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 be determined by an officer of the Company. In the event that a Restricted Payment meets the criteria of more than one of the exceptions described in (iSection 6.01(b)(i) through (xvb)(xviii) above or is entitled to be made pursuant to the first paragraph of this covenantabove, the Company mayshall, in its sole discretion, classify, and may later reclassify from time to time, classify such Restricted Payment or any portion thereof into or among any of such applicable provisionsPayment.
Appears in 1 contract
Samples: Credit Agreement (CHC Group Ltd.)
Restricted Payments. (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly:
(i) declare Declare or pay any dividend or make any other payment or distribution on account of the Company’s Borrower’s, or any of its Restricted Subsidiaries’ Equity Interests Subsidiary’s, Capital Stock (including, without limitation, any payment in connection with any merger or consolidation involving the Company Borrower or any of its Restricted SubsidiariesSubsidiary) or to the direct or indirect holders of the CompanyBorrower’s or any of its Restricted Subsidiaries’ Equity Interests Subsidiary’s Capital Stock in their capacity as such (other than (A) dividends or distributions accrued or (i) payable in Equity Interests Capital Stock (other than Disqualified InterestsStock) of the Company Borrower or (Bii) dividends or distributions payable to the Company or Borrower and/or a Restricted Subsidiary of the CompanyBorrower or payable from a Foreign Subsidiary to another Foreign Subsidiary);
, (iib) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the CompanyBorrower) any Equity Interests Capital Stock of the Company or any direct or indirect parent of the Company Borrower, (other than any such Equity Interests owned by the Company or any Restricted Subsidiary of the Company);
(iiic) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness that is subordinated to the Notes or any Note Guarantee (other than Indebtedness permitted under clause (vi) of the definition of “Permitted Debt”) Subordinated Indebtedness, except (a) a payment of interest or principal at the Stated Maturity thereof or a payment of principal or interest on Indebtedness owed to the Borrower or any of its Restricted Subsidiaries, or (b) the purchase, repurchase or other acquisition of any such Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case, due within one year of the date of such purchase, repurchase or other acquisition; or
(ivd) make any Restricted Investment (all such payments and other actions set forth in these clauses (ia) through (ivd) 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 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 Fixed Charge Coverage Ratio test set forth in Section 4.09(a); and
(Cb) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company Borrower and its Restricted Subsidiaries after August 27December 31, 2012 2011 (excluding Restricted Payments permitted by clauses (ib), (c), (d), (e) and (f) of the next succeeding paragraph, but including any Restricted Payments permitted to be made under the RP Incurrence Test (as defined below) (provided that at Restricted Payments permitted to be made under the time RP Incurrence Test shall not be included if and to the extent that the inclusion of declaring such dividend, such dividend was counted as a same would result in the Restricted PaymentPayment available capacity under the test set forth in this clause (b) to be reduced (ii), (iii), (iv), (v), (vi), (vii), (viii), (ix), (x), (xi), (xii), (xiii), (xivor further reduced) and (xv) of Section 4.07(bbelow zero)), is less than the sum, without duplication, of:
(1i) 50% of the Consolidated Adjusted Net Income of the Company Borrower, for the period (taken as one accounting period) from April 2the fiscal quarter ended March 31, 2012 to the end of the CompanyBorrower’s most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Adjusted Net Income for such period is a deficit, less 100% of such deficit), plus
(2ii) 100% of the aggregate net proceeds, cash proceeds received by the Borrower (including the fair market value of any property Permitted Business or assets used or useful in a Permitted Business to the extent acquired in consideration of Capital InterestsStock of the Borrower (other than Disqualified Stock)) since December 31, received by the Company since August 27, 2012 2011 as a contribution to its common equity capital or from the issue or sale of Equity Interests Capital Stock of the Company Borrower (other than Disqualified InterestsStock) or from the issue or sale of convertible or exchangeable Disqualified Interests Stock or convertible or exchangeable debt securities of the Company Borrower that have been converted into or exchanged for such Equity Interests Capital Stock (other than Equity Interests Capital Stock (or Disqualified Interests Stock or convertible debt securities) sold to a Subsidiary of the CompanyBorrower), together with the aggregate cash and Cash Equivalents received by the Company or any of its Restricted Subsidiaries at the time of such conversion or exchange plus the amount by which Indebtedness of the Company and its Restricted Subsidiaries is reduced upon the conversion or exchange subsequent to August 27, 2012 of any Indebtedness or Disqualified Interests which are convertible into or exchangeable for Qualified Capital Interests of the Company or any of its Restricted Subsidiaries, plus
(3iii) 100% of to the amount received, including the fair market value of extent that any property received after August 27, 2012 by means of (A) the sale or other disposition Restricted Investment (other than to the Company or a Restricted SubsidiaryInvestment permitted by clause (e) of the next succeeding paragraph) that was made after December 31, 2011 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 Investments made by Investment (less the Company or its Restricted Subsidiaries cost of disposition, if any) and repurchases and redemptions (ii) the initial amount of such Restricted Investments from the Company or its Restricted Subsidiaries and repayments of loans or advances which constitute Restricted Investments of the Company or its Restricted Subsidiaries or (B) the sale (other than to the Company or a Restricted Subsidiary) of the Capital Interests of an Unrestricted Subsidiary or a distribution from an Unrestricted Subsidiary (other than in each case to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment) or a dividend from an Unrestricted Subsidiary, plus
(4iv) in to the case extent that any Unrestricted Subsidiary of the redesignation of an Unrestricted Subsidiary Borrower is redesignated as a Restricted Subsidiary or after December 31, 2011, the merger or consolidation lesser of an Unrestricted Subsidiary into the Company or a Restricted Subsidiary or the transfer of assets of an Unrestricted Subsidiary to the Company or a Restricted Subsidiary, (i) the fair market value of the Borrower’s Investment in such Unrestricted Subsidiary as of the date of such redesignation or (other than ii) such fair market value as of the date on which such Subsidiary was originally designated as an Unrestricted Subsidiary to Subsidiary; provided that at any time the extent Consolidated Total Leverage Ratio calculated as of the Investment in such Unrestricted Subsidiary constituted a Permitted Investment), plus
(5) $141.0 million. The Board of Directors 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 in the Subsidiary so designated will be deemed to be Restricted Payments or Permitted Investments, in the CompanyBorrower’s discretion, most recently ended fiscal quarter for which internal financial statements are available at the time of such designation and will reduce Restricted Payment, calculated on a pro forma basis after giving effect to any Indebtedness incurred in connection therewith, is less than 3.50 to 1.00, the amount available for Borrower may make additional Restricted Payments or Permitted Investments, as applicable. All such outstanding Investments will be deemed not otherwise permitted pursuant 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 Payments or Permitted Investments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary.
this clause (b) Section 4.07(aso long as (i) no Default or Event of Default has occurred and is continuing or would occur as a consequence of such Restricted Payment and (ii) the total amount of unrestricted domestic cash and Cash Equivalents of the Borrower and its Restricted Subsidiaries plus the unused amount of the Revolving Credit Commitments (after given effect to such Restricted Payment) is not less than $125,000,000 (the “RP Incurrence Test”). So long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the preceding provisions shall not prohibit:
(ia) the payment of any dividend or other distribution or redemption within 60 days after the date of declaration or call for redemption thereofof the dividend, if at said the date of declaration or call for redemption such the dividend payment would have complied with the provisions of this IndentureAgreement;
(iib) the making redemption, repurchase, retirement, defeasance or other acquisition of any Restricted Payment subordinated Indebtedness of the Borrower or any Subsidiary Guarantor or of any Capital Stock of the Borrower in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Subsidiary of the CompanyBorrower) of, Equity Interests Capital Stock of the Company Borrower (other than any Disqualified Interests) or from a contribution of capital to the CompanyStock); 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 Section 4.07(a)(C)(2)clause (b)(ii) of the preceding paragraph;
(iiic) the defeasance, redemption, repurchase, replacement, extension, renewal, refinancing or retirement repurchase or other acquisition of subordinated Subordinated Indebtedness of the Borrower or Disqualified Interests in exchange for or any Subsidiary Guarantor with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness;
(ivd) (i) loans or advances from any Restricted Subsidiary to the Borrower or any of its Restricted Subsidiaries and (ii) the declaration, or payment of any dividend or the making of any other distribution by a Restricted Subsidiary of the Company Borrower (x) to the Borrower or any Restricted Subsidiary or (y) to the holders of its common Equity Interests Capital Stock on a pro rata basis;
(ve) the repurchase, redemption or other acquisition or retirement for value repurchases of any Equity Interests Capital Stock of the Company or any Subsidiary of the Company held by any current or former officer, director, employee, consultant or agent of Company or any of its Restricted Subsidiaries (or Heirs or other permitted transferees thereof) upon death, disability, retirement, severance or termination of employment or service or in connection with a stock option plan or agreement, shareholders agreement, or similar agreement, plan or arrangement, including amendments thereto; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may not exceed: (A) $10.0 million in any calendar year, with unused amounts being available to be used in any later calendar year; provided that such amount in any calendar year may be increased in an amount not to exceed the net cash proceeds from the sale of Equity Interests (other than Disqualified Interests) of the Company to any officer, director, employee or agent of the Company or any Subsidiary of the Company that occurs after the date of this Indenture, to the extent such net cash proceeds have not otherwise been applied to make Restricted Payments pursuant to Section 4.07(a)(C)(2); plus (B) the cash proceeds of key man life insurance policies received by the Company and its Restricted Subsidiaries after the date of this Indenture that are used for the repurchase, redemption or other acquisition or retirement for value owned by the individual (or such individual’s estate) that is the subject of such insurance;
(vi) the repurchase of Equity Interests Borrower deemed to occur upon the exercise of options, warrants or other convertible securities to the extent stock options if such Equity Interests represent Capital Stock represents a portion of the exercise price of those options, warrants thereof or other convertible securities and cash payments in lieu represents shares tendered by an existing or former employee of the issuance Borrower or any Subsidiary (or the estate, heirs or assigns of fractional shares in connection with such employee) to satisfy the exercise of options, warrants, or other convertible securities;employer’s minimum statutory tax-withholding obligation related to employee stock awards; and
(viif) the declaration and payment of regular quarterly dividends on the Company’s Equity Interests in accordance with past practice and not to exceed $0.05 per share;
(viii) additional Restricted Payments not to exceed $150.0 million after August 27, 2012;
(ix) the repurchase of the Company’s Equity Interests otherwise permitted in an amount not to exceed $50.0 million after August 27, 2012;
(x) distributions or payments of Securitization Fees and purchases of Securitization Assets pursuant to a Securitization Repurchase Obligation in connection with a Qualified Securitization Financing;
(xi) any payments made in connection with the consummation of the transactions on substantially the terms described in the Offering Memorandum;
(xii) the payment of intercompany subordinated debt, the incurrence of which was permitted under Section 4.09(b)(vi);
(xiii) the purchase of fractional shares by the Company upon conversion of any securities of the Company into Capital Interests of the Company;
(xiv) the repurchase, redemption or other acquisition or retirement for value of subordinated Indebtedness or Disqualified Interests pursuant to the provisions similar to those described under Section 4.14 and Section 4.10; provided that all Notes tendered by Holders of the Notes in connection with the related Change of Control Offer or Asset Sale Offer, as applicable, have been repurchased, redeemed or acquired for value in full; and
(xv) payment of dividends on Disqualified Interests of the Company or a Restricted Subsidiary, the issuance of which is permitted by this Indenture.
(c) 40,000,000. 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 Borrower or such 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 10.5 shall be determined by the Borrower’s board of directors, whose resolution with respect thereto shall be delivered to the Administrative Agent. The Borrower’s board of directors’ determination must be based upon an officer opinion or appraisal issued by an accounting, appraisal or investment banking firm of national standing if the Companyfair market value exceeds $25,000,000. In the event that a Except with respect to any Restricted Payment meets the criteria of more than one of the exceptions described in permitted pursuant to clauses (ia) through (xvf) above or is entitled to be made pursuant to of the first paragraph immediately preceding paragraph, not later than ten (10) days following the end of this covenant, the Company may, fiscal quarter in its sole discretion, classify, and may later reclassify from time to time, which such Restricted Payment or any portion thereof into or among any of was made, the Borrower shall deliver to the Administrative Agent an officer’s certificate, in form reasonably satisfactory to the Administrative Agent, stating that such applicable provisionsRestricted Payment is permitted and setting forth the basis upon which the calculations required by this Section 10.5 were calculated.
Appears in 1 contract
Restricted Payments. (a) The Company shall not, and shall not cause or 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 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 (A) dividends or distributions accrued or payable in Equity Interests Qualified Capital Stock of Company) on or in respect of shares of Company's Capital Stock to holders of such Capital Stock, (other than Disqualified Interests) of the Company or (B) dividends or distributions to the Company or a Restricted Subsidiary of the Company);
(iib) 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 Capital Stock of the Company or any direct warrants, rights or indirect parent options to purchase or acquire shares of the Company any class of such Capital Stock, (other than any such Equity Interests owned by the Company or any Restricted Subsidiary of the Company);
(iiic) make any principal payment on or with respect toon, or purchase, defease, redeem, defease prepay or otherwise acquire or retire for value value, prior to any Indebtedness that is subordinated to the Notes scheduled final maturity, scheduled repayment or scheduled sinking fund payment, any Note Guarantee Subordinated Indebtedness; or (d) make any Investment (other than Indebtedness permitted under clause Permitted Investments) (vi) each of the definition of “Permitted Debt”) except (a) a payment of interest or principal at Stated Maturity or (b) the purchase, repurchase or other acquisition of any such Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case, due within one year of the date of such purchase, repurchase or other acquisition; or
(iv) make any Restricted Investment (all such payments and other foregoing actions set forth in clauses (ia), (b), (c) through and (ivd) above being collectively referred to as “a "Restricted Payments”)Payment") prior to the Conversion Date. In addition, unlessCompany shall not, and shall not cause or permit any of its Subsidiaries to, directly or indirectly, make any Restricted Payment on and after the Conversion Date, if at the time of and such Restricted Payment or immediately after giving effect thereto, (i) a Default or an Event of Default shall have occurred and be continuing or (ii) Company is not able to incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) in compliance with subsection 6.1 of this Agreement or (iii) the aggregate amount of Restricted Payments (including such proposed Restricted Payment:) made on or after the Conversion Date (the amount expended for such purposes, if other than in cash, being the fair market value of such property as determined reasonably and in good faith by the Board of Directors of Company) shall exceed the sum of: (w) 50% of the cumulative Consolidated Net Income (or if cumulative Consolidated Net Income shall be a loss, minus 100% of such loss) of Company earned on or after the Conversion Date and through the last day of the fiscal quarter ending prior to the date the Restricted Payment occurs (the "Reference Date") (treating such period as a single accounting period); plus (x) 100% of the aggregate net cash proceeds received by Company from any Person (other than a Subsidiary of Company) from the issuance and sale subsequent to the Conversion Date and on or prior to the Reference Date of Qualified Capital Stock of Company, including the net cash proceeds received by Company upon the exercise, exchange or conversion of Indebtedness or Disqualified Capital Stock into Qualified Capital Stock; plus (y) without duplication of any amounts included in clause (iii)(x) above, 100% of the aggregate net cash proceeds of any equity contribution received by Company from a holder of Company's Capital Stock; plus (z) without duplication of amounts included in clause (iii)(w) above, the amount equal to the net reduction in Investments (other than Permitted Investments) made by Company or any of its Subsidiaries on and after the Conversion Date in any Person resulting from repurchases or redemptions of such Investments by such Person, proceeds realized by such Person upon the sale of such Investment to a purchaser who is not an Affiliate of Company and repayments of loans or advances or other transfers of assets by such Person to Company or any Subsidiary of the Company.
(Ab) Notwithstanding the foregoing, the provisions set forth in the immediately preceding paragraph do not prohibit: (1) the payment of any dividend within 60 days after the date of declaration of such dividend if the dividend would have been permitted on the date of declaration; (2) if no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof;
(B) result therefrom, the Company wouldacquisition of any shares of Capital Stock of Company, 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 Fixed Charge Coverage Ratio test set forth in Section 4.09(a); and
(C) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after August 27, 2012 (excluding Restricted Payments permitted by clauses either (i) (provided that at the time solely in exchange for shares of declaring such dividend, such dividend was counted as a Restricted Payment) (ii), (iii), (iv), (v), (vi), (vii), (viii), (ix), (x), (xi), (xii), (xiii), (xiv) and (xv) Qualified Capital Stock of Section 4.07(b)), is less than the sum, without duplication, of
(1) 50% of the Consolidated Net Income of the Company for the period (taken as one accounting period) from April 2, 2012 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
(2) 100% of the aggregate net proceeds, including the fair market value of any property or Capital Interests, received by the Company since August 27, 2012 as a contribution to its equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified Interests) or from the issue or sale of Disqualified Interests or debt securities of the Company that have been converted into such Equity Interests (other than Equity Interests (or Disqualified Interests or convertible debt securities) sold to a Subsidiary of the Company), together with the aggregate cash and Cash Equivalents received by the Company or any of its Restricted Subsidiaries at the time of such conversion or exchange plus the amount by which Indebtedness of the Company and its Restricted Subsidiaries is reduced upon the conversion or exchange subsequent to August 27, 2012 of any Indebtedness or Disqualified Interests which are convertible into or exchangeable for Qualified Capital Interests of the Company or any of its Restricted Subsidiaries, plus
(3) 100% of the amount received, including the fair market value of any property received after August 27, 2012 by means of (A) the sale or other disposition (other than to the Company or a Restricted Subsidiary) of Restricted Investments made by the Company or its Restricted Subsidiaries and repurchases and redemptions of such Restricted Investments from the Company or its Restricted Subsidiaries and repayments of loans or advances which constitute Restricted Investments of the Company or its Restricted Subsidiaries or (B) the sale (other than to the Company or a Restricted Subsidiary) of the Capital Interests of an Unrestricted Subsidiary or a distribution from an Unrestricted Subsidiary (other than in each case to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment) or a dividend from an Unrestricted Subsidiary, plus
(4) in the case of the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary or the merger or consolidation of an Unrestricted Subsidiary into the Company or a Restricted Subsidiary or the transfer of assets of an Unrestricted Subsidiary to the Company or a Restricted Subsidiary, the fair market value of the Investment in such Unrestricted Subsidiary (other than an Unrestricted Subsidiary to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment), plus
(5) $141.0 million. The Board of Directors 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 in the Subsidiary so designated will be deemed to be Restricted Payments or Permitted Investments, in the Company’s discretion, at the time of such designation and will reduce the amount available for Restricted Payments or Permitted Investments, as applicable. 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 Payments or Permitted Investments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary.
(b) Section 4.07(a) shall not prohibit:
(i) the payment of any dividend or other distribution or redemption within 60 days after the date of declaration or call for redemption thereof, if at said date of declaration or call for redemption such payment would have complied with the provisions of this Indenture;
(ii) through the making application of any Restricted Payment in exchange for, or out of the net cash proceeds of the a substantially concurrent sale for cash (other than to a Subsidiary of the Company) of, Equity Interests of the Company (other than any Disqualified Interests) or from a contribution shares of capital to the Qualified Capital Stock of Company; provided provided, however, 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 Section 4.07(a)(C)(2);
clause (iiiiii)(x) of paragraph (a) above; (3) if no Default or Event of Default shall have occurred and be continuing or would result therefrom, the defeasance, redemption, repurchase, replacement, extension, renewal, refinancing or retirement or other acquisition of subordinated Indebtedness or Disqualified Interests any Subordinated Indebtedness, either (i) solely in exchange for shares of Qualified Capital Stock of Company or with (ii) through the application of net proceeds of a substantially concurrent sale for cash (other than to a Subsidiary of Company) of shares of Qualified Capital Stock of Company; provided, however, that any such net cash proceeds are excluded from an incurrence clause (iii)(x) of Permitted Refinancing Indebtedness;
paragraph (iva) the declarationabove; (4) if no Default or Event of Default shall have occurred and be continuing or would result therefrom, or payment repurchases by Company of any dividend or other distribution by a Subsidiary Common Stock 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 current or former officer, director, employee, consultant or agent from employees of Company or any of its Restricted Subsidiaries (or Heirs or other permitted transferees thereof) their authorized representatives upon the death, disability, retirement, severance disability or termination of employment or service or in connection with a stock option plan or agreementof such employees, shareholders agreement, or similar agreement, plan or arrangement, including amendments thereto; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may not exceed: (A) $10.0 million in any calendar year, with unused amounts being available to be used in any later calendar year; provided that such amount in any calendar year may be increased in an amount not to exceed (i) $5.0 million prior to the net Conversion Date and (ii) $5.0 million in any calendar year and $10.0 million in the aggregate on and after the Conversion Date, plus the aggregate cash proceeds from any reissuance during such calendar year of Common Stock by Company to employees, officers or directors of Company and its Subsidiaries (without duplication of amounts included in clause (iii)(x) of paragraph (a) above); and (5) if no Default or Event of Default shall have occurred and be continuing or would result therefrom, Investments by Company and its Subsidiaries in an aggregate amount outstanding (i) at any time prior to the sale Conversion Date not exceeding $10.0 million and (ii) at any time on and after the Conversion Date not exceeding $40.0 million. In determining the aggregate amount of Equity Interests Restricted Payments made on or after the Conversion Date in accordance with clause (other than Disqualified Interestsiii) of the Company second sentence in paragraph (a) above, amounts expended pursuant to any officerclauses (1), director(2)(ii), employee (3)(ii), (4) and (5) shall be included in such calculation (whether or agent of not such amounts were expended prior to or on and after the Company or any Subsidiary of the Company that occurs after Conversion Date). Not later than the date of this Indenture, to the extent such net cash proceeds have not otherwise been applied to make Restricted Payments pursuant to Section 4.07(a)(C)(2); plus (B) the cash proceeds of key man life insurance policies received by the Company and its Restricted Subsidiaries after the date of this Indenture that are used for the repurchase, redemption or other acquisition or retirement for value owned by the individual (or such individual’s estate) that is the subject of such insurance;
(vi) the repurchase of Equity Interests deemed to occur upon the exercise of options, warrants or other convertible securities to the extent such Equity Interests represent a portion of the exercise price of those options, warrants or other convertible securities and cash payments in lieu of the issuance of fractional shares in connection with the exercise of options, warrants, or other convertible securities;
(vii) the declaration and payment of regular quarterly dividends on the Company’s Equity Interests in accordance with past practice and not to exceed $0.05 per share;
(viii) additional Restricted Payments not to exceed $150.0 million after August 27, 2012;
(ix) the repurchase of the Company’s Equity Interests in an amount not to exceed $50.0 million after August 27, 2012;
(x) distributions or payments of Securitization Fees and purchases of Securitization Assets pursuant to a Securitization Repurchase Obligation in connection with a Qualified Securitization Financing;
(xi) making any payments made in connection with the consummation of the transactions on substantially the terms described in the Offering Memorandum;
(xii) the payment of intercompany subordinated debt, the incurrence of which was permitted under Section 4.09(b)(vi);
(xiii) the purchase of fractional shares by the Company upon conversion of any securities of the Company into Capital Interests of the Company;
(xiv) the repurchase, redemption or other acquisition or retirement for value of subordinated Indebtedness or Disqualified Interests pursuant to the provisions similar to those described under Section 4.14 and Section 4.10; provided that all Notes tendered by Holders of the Notes in connection with the related Change of Control Offer or Asset Sale Offer, as applicable, have been repurchased, redeemed or acquired for value in full; and
(xv) payment of dividends on Disqualified Interests of the Company or a Restricted Subsidiary, the issuance of which is permitted by this Indenture.
(c) 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 Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment , Company shall be determined by deliver to Administrative Agent an officer of the Company. In the event Officers' Certificate stating that a Restricted Payment meets the criteria of more than one of the exceptions described in (i) through (xv) above or is entitled to be made pursuant to the first paragraph of this covenant, the Company may, in its sole discretion, classify, and may later reclassify from time to time, such Restricted Payment or any portion thereof into or among any of such applicable provisionscomplies with this Agreement and setting forth in reasonable detail the basis upon which the required calculations were computed, which calculations may be based upon Company's latest available internal quarterly financial statements.
Appears in 1 contract
Samples: Senior Subordinated Credit Agreement (Express Scripts Inc)
Restricted Payments. (a) 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 Subsidiary of its Restricted Subsidiariesthe 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 (such, other than (A) dividends or distributions accrued or payable (a) in Equity Interests (other than Disqualified InterestsStock) of the Company or (B) dividends or distributions any Subsidiary of the Company to the Company or a Restricted any Subsidiary of the Company), or (b) in the case of dividends or distributions payable by any Subsidiary of the Company, pro rata to the holders of such Subsidiary’s Equity Interests;
(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 the Company (other than any such Equity Interests owned by the Company or any Restricted Subsidiary of the Company);
(iii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness of the Company or any of its Subsidiaries that is contractually subordinated to the Notes or any Note Guarantee (other than excluding any intercompany Indebtedness permitted under clause (vi) between or among the Company and any of the definition of “Permitted Debt”) its Subsidiaries), except (a) a payment of interest or principal at Stated Maturity or (b) the purchase, repurchase or other acquisition of any such Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case, due within one year of the date of such purchase, repurchase or other acquisitionmaturity date; or
(iv) make any Restricted Investment (Investment, all such payments and other actions set forth in clauses (i) through (iv) above being collectively referred to as “Restricted Payments”” unless, solely with respect to any payment or other action that would otherwise constitute a Restricted Payment as set forth in clause (i), unless(ii) or (iv) above, 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;
(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 Fixed Charge Coverage Ratio test set forth in Section 4.09(a)Payment; and
(C2) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after August 27, 2012 since the date of this Indenture (excluding Restricted Payments permitted by clauses (iii) (provided that at the time of declaring such dividend, such dividend was counted as a Restricted Payment) (ii), (iii), (iv), (v), (vi), through and including (vii), (viii), (ix), (x), (xi), (xii), (xiii), (xiv) and (xv) of Section 4.07(b))the next succeeding paragraph, is less than the sum, without duplication, of:
(1a) 50% of the Consolidated Net Income of the Company for the period (taken as one accounting period) from April 2, 2012 the beginning of the first fiscal quarter commencing after the 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
(2b) 100% of the aggregate net proceeds, including the fair market value of any property or Capital Interests, cash proceeds received by the Company since August 27, 2012 the 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 InterestsStock) or from the issue or sale of convertible or exchangeable Disqualified Interests Stock or convertible or exchangeable debt securities of the Company that have been converted into or exchanged for such Equity Interests (other than Equity Interests (or Disqualified Interests Stock or convertible debt securities) sold to a Subsidiary of the Company), together with the aggregate cash and Cash Equivalents received by the Company or any of its Restricted Subsidiaries at the time of such conversion or exchange plus the amount by which Indebtedness of the Company and its Restricted Subsidiaries is reduced upon the conversion or exchange subsequent to August 27, 2012 of any Indebtedness or Disqualified Interests which are convertible into or exchangeable for Qualified Capital Interests of the Company or any of its Restricted Subsidiaries, ; plus
(3c) 100% to the extent that any Restricted Investment that was made after the date of this Indenture is sold for cash or otherwise liquidated or repaid for cash, the amount received, including the fair market value of any property received after August 27, 2012 by means lesser of (Ai) the sale or other disposition cash return of capital with respect to such Restricted Investment (other than to less the Company or a Restricted Subsidiarycost of disposition, if any) of Restricted Investments made by and (ii) the Company or its Restricted Subsidiaries and repurchases and redemptions initial amount of such Restricted Investments from the Company Investment. So long as no Event of Default shall have occurred and be continuing or its Restricted Subsidiaries and repayments of loans or advances which constitute Restricted Investments of the Company or its Restricted Subsidiaries or (B) the sale (other than to the Company or a Restricted Subsidiary) of the Capital Interests of an Unrestricted Subsidiary or a distribution from an Unrestricted Subsidiary (other than in each case to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment) or a dividend from an Unrestricted Subsidiary, plus
(4) in the case of the redesignation of an Unrestricted Subsidiary would occur as a Restricted Subsidiary or the merger or consolidation of an Unrestricted Subsidiary into the Company or a Restricted Subsidiary or the transfer of assets of an Unrestricted Subsidiary to the Company or a Restricted Subsidiaryconsequence thereof, the fair market value of the Investment in such Unrestricted Subsidiary (other than an Unrestricted Subsidiary to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment), plus
(5) $141.0 million. The Board of Directors 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 in the Subsidiary so designated will be deemed to be Restricted Payments or Permitted Investments, in the Company’s discretion, at the time of such designation and will reduce the amount available for Restricted Payments or Permitted Investments, as applicable. 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 Payments or Permitted Investments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary.
(b) Section 4.07(a) foregoing provisions shall 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 call for giving of the redemption thereofnotice, as the case may be, if at said the date of declaration or call for notice, the dividend or redemption such payment would have complied with the provisions of this Indenture;
(ii) the making of any Restricted Payment (other than a Restricted Payment as defined in clause (iii) of the definition of Restricted Payment) in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Subsidiary of the CompanyCompany or a Guarantor) of, Equity Interests of the Company (other than any Disqualified InterestsStock) or from a 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 redemption, repurchase, retirement, defeasance or other acquisition shall be excluded from Section 4.07(a)(C)(2);
(iii) the defeasance, redemption, repurchase, replacement, extension, renewal, refinancing or retirement defeasance or other acquisition or retirement for value of Indebtedness of the Company or its Subsidiaries that is contractually subordinated Indebtedness or Disqualified Interests in exchange for subordinated with respect to security interests to the Notes or any Note Guarantee with the net cash proceeds from an a substantially concurrent incurrence of Permitted Refinancing Indebtedness;
(iv) the declaration, or payment of any dividend or other distribution 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 current or former officer, director, employee, consultant employee or agent contractor of the Company or any of its Restricted Subsidiaries (in order to pay or Heirs satisfy such officer’s, director’s, employee’s or other permitted transferees thereof) contractor’s aggregate exercise price or withholding tax payment obligations or otherwise upon death, disability, retirement, severance retirement or termination of employment or service engagement, pursuant to awards granted under the Company’s equity incentive, stock option, restricted stock or in connection with a stock option plan or agreement, shareholders agreement, or similar agreement, plan or arrangement, including amendments theretoother long-term equity compensation plans; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may not exceed: (A) exceed $10.0 million 500,000 in the aggregate in any calendar year, with provided, that any unused amounts being available to be used in any later calendar year; provided that such amount in any calendar year may be increased in an amount not carried forward to exceed the net cash proceeds from the sale of Equity Interests (other than Disqualified Interests) of the Company to any officer, director, employee one or agent of the Company or any Subsidiary of the Company that occurs after the date of this Indenture, to the extent such net cash proceeds have not otherwise been applied to make Restricted Payments pursuant to Section 4.07(a)(C)(2); plus (B) the cash proceeds of key man life insurance policies received by the Company and its Restricted Subsidiaries after the date of this Indenture that are used for the repurchase, redemption or other acquisition or retirement for value owned by the individual (or such individual’s estate) that is the subject of such insurancemore future periods;
(viv) the repurchase of Equity Interests of the Company deemed to occur upon the exercise of stock options, warrants warrants, or other convertible or exchangeable securities to the extent such Equity Interests represent a portion of the exercise price of those stock options, warrants or other convertible securities and cash payments in lieu of the issuance of fractional shares in connection with the exercise of options, warrants, or other convertible exchangeable securities;; and
(viivi) Restricted Investments by the declaration Company and payment of regular quarterly dividends on the Company’s Equity Interests in accordance with past practice and its subsidiaries not to exceed $0.05 per share;
(viii) additional Restricted Payments not to exceed $150.0 million after August 27otherwise permitted under this Indenture, 2012;
(ix) the repurchase of the Company’s Equity Interests in an aggregate amount not to exceed $50.0 2 million after August 27, 2012;
(x) distributions or payments of Securitization Fees and purchases of Securitization Assets pursuant to a Securitization Repurchase Obligation in connection with a Qualified Securitization Financing;
(xi) at any payments made in connection with the consummation of the transactions on substantially the terms described in the Offering Memorandum;
(xii) the payment of intercompany subordinated debt, the incurrence of which was permitted under Section 4.09(b)(vi);
(xiii) the purchase of fractional shares by the Company upon conversion of any securities of the Company into Capital Interests of the Company;
(xiv) the repurchase, redemption or other acquisition or retirement for value of subordinated Indebtedness or Disqualified Interests pursuant to the provisions similar to those described under Section 4.14 and Section 4.10; provided that all Notes tendered by Holders of the Notes in connection with the related Change of Control Offer or Asset Sale Offer, as applicable, have been repurchased, redeemed or acquired for value in full; and
(xv) payment of dividends on Disqualified Interests of the Company or a Restricted Subsidiary, the issuance of which is permitted by this Indenture.
(c) time outstanding. 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 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 be determined by an officer the Board of the Company. In the event that a Restricted Payment meets the criteria of more than one of the exceptions described in (i) through (xv) above or is entitled to Directors whose resolution with respect thereto shall be made pursuant delivered to the first paragraph of this covenant, the Company may, Trustee in its sole discretion, classify, and may later reclassify from time to time, such Restricted Payment or any portion thereof into or among any of such applicable provisionsan Officer’s Certificate.
Appears in 1 contract
Restricted Payments. (a) 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 its 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 (A) dividends or distributions accrued or payable (x) solely in Equity Interests (other than Disqualified InterestsStock) of the Company or (By) dividends or distributions in the case of the Company and its Restricted Subsidiaries, to the Company or a Restricted Subsidiary of the Companythereof);
(iib) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the CompanyCompany or any of its Restricted Subsidiaries) any Equity Interests of the Company or any direct or indirect parent Parent of the Company or any Restricted Subsidiary of the Company (other than than, in the case of the Company and its Restricted Subsidiaries, any such Equity Interests owned by the Company or any of its Restricted Subsidiary of the CompanySubsidiaries);; or
(iiic) 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 (other than intercompany indebtedness among the Company and its Restricted Subsidiaries that is permitted to be incurred under this Indenture) that is subordinated to the Notes or any Note Guarantee (other than Indebtedness permitted under clause (vi) of the definition of “Permitted Debt”) Notes, except (a) a payment of interest or principal at the Stated Maturity or (b) the purchase, repurchase or other acquisition of any such Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case, due within one year of the date of such purchase, repurchase or other acquisition; or
(iv) make any Restricted Investment thereof (all such payments and other actions set forth in clauses (ia) through (ivc) 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;; 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 Fixed Charge Coverage Leverage Ratio test set forth in the first paragraph of Section 4.09(a)4.10; and
(C3) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries from and after August 27, 2012 the Issue Date (excluding Restricted Payments permitted by clauses (i) (provided that at the time of declaring such dividend, such dividend was counted as a Restricted Payment) (ii2), (iii3), (iv4), (v5), (vi6), (vii), (viii), (ix), (x), (xi), (xii), (xiii), (xiv) and (xv) of Section 4.07(b)), is less than the sum, without duplication, of
(1) 50% of the Consolidated Net Income of the Company for the period (taken as one accounting period) from April 2, 2012 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
(2) 100% of the aggregate net proceeds, including the fair market value of any property or Capital Interests, received by the Company since August 27, 2012 as a contribution to its equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified Interests) or from the issue or sale of Disqualified Interests or debt securities of the Company that have been converted into such Equity Interests (other than Equity Interests (or Disqualified Interests or convertible debt securities) sold to a Subsidiary of the Company), together with the aggregate cash and Cash Equivalents received by the Company or any of its Restricted Subsidiaries at the time of such conversion or exchange plus the amount by which Indebtedness of the Company and its Restricted Subsidiaries is reduced upon the conversion or exchange subsequent to August 27, 2012 of any Indebtedness or Disqualified Interests which are convertible into or exchangeable for Qualified Capital Interests of the Company or any of its Restricted Subsidiaries, plus
(3) 100% of the amount received, including the fair market value of any property received after August 27, 2012 by means of (A) the sale or other disposition (other than to the Company or a Restricted Subsidiary) of Restricted Investments made by the Company or its Restricted Subsidiaries and repurchases and redemptions of such Restricted Investments from the Company or its Restricted Subsidiaries and repayments of loans or advances which constitute Restricted Investments of the Company or its Restricted Subsidiaries or (B) the sale (other than to the Company or a Restricted Subsidiary) of the Capital Interests of an Unrestricted Subsidiary or a distribution from an Unrestricted Subsidiary (other than in each case to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment) or a dividend from an Unrestricted Subsidiary, plus
(4) in the case of the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary or the merger or consolidation of an Unrestricted Subsidiary into the Company or a Restricted Subsidiary or the transfer of assets of an Unrestricted Subsidiary to the Company or a Restricted Subsidiary, the fair market value of the Investment in such Unrestricted Subsidiary (other than an Unrestricted Subsidiary to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment), plus
(5) $141.0 million. The Board of Directors 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 in the Subsidiary so designated will be deemed to be Restricted Payments or Permitted Investments, in the Company’s discretion, at the time of such designation and will reduce the amount available for Restricted Payments or Permitted Investments, as applicable. 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 Payments or Permitted Investments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary.
(b) Section 4.07(a) shall not prohibit:
(i) the payment of any dividend or other distribution or redemption within 60 days after the date of declaration or call for redemption thereof, if at said date of declaration or call for redemption such payment would have complied with the provisions of this Indenture;
(ii) the making of any Restricted Payment in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Subsidiary of the Company) of, Equity Interests of the Company (other than any Disqualified Interests) or from a contribution of capital to the Company; 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 Section 4.07(a)(C)(2);
(iii) the defeasance, redemption, repurchase, replacement, extension, renewal, refinancing or retirement or other acquisition of subordinated Indebtedness or Disqualified Interests in exchange for or with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness;
(iv) the declaration, or payment of any dividend or other distribution 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 current or former officer, director, employee, consultant or agent of Company or any of its Restricted Subsidiaries (or Heirs or other permitted transferees thereof) upon death, disability, retirement, severance or termination of employment or service or in connection with a stock option plan or agreement, shareholders agreement, or similar agreement, plan or arrangement, including amendments thereto; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may not exceed: (A) $10.0 million in any calendar year, with unused amounts being available to be used in any later calendar year; provided that such amount in any calendar year may be increased in an amount not to exceed the net cash proceeds from the sale of Equity Interests (other than Disqualified Interests) of the Company to any officer, director, employee or agent of the Company or any Subsidiary of the Company that occurs after the date of this Indenture, to the extent such net cash proceeds have not otherwise been applied to make Restricted Payments pursuant to Section 4.07(a)(C)(2); plus (B) the cash proceeds of key man life insurance policies received by the Company and its Restricted Subsidiaries after the date of this Indenture that are used for the repurchase, redemption or other acquisition or retirement for value owned by the individual (or such individual’s estate) that is the subject of such insurance;
(vi) the repurchase of Equity Interests deemed to occur upon the exercise of options, warrants or other convertible securities to the extent such Equity Interests represent a portion of the exercise price of those options, warrants or other convertible securities and cash payments in lieu of the issuance of fractional shares in connection with the exercise of options, warrants, or other convertible securities;
(vii) the declaration and payment of regular quarterly dividends on the Company’s Equity Interests in accordance with past practice and not to exceed $0.05 per share;
(viii) additional Restricted Payments not to exceed $150.0 million after August 27, 2012;
(ix) the repurchase of the Company’s Equity Interests in an amount not to exceed $50.0 million after August 27, 2012;
(x) distributions or payments of Securitization Fees and purchases of Securitization Assets pursuant to a Securitization Repurchase Obligation in connection with a Qualified Securitization Financing;
(xi) any payments made in connection with the consummation of the transactions on substantially the terms described in the Offering Memorandum;
(xii) the payment of intercompany subordinated debt, the incurrence of which was permitted under Section 4.09(b)(vi);
(xiii) the purchase of fractional shares by the Company upon conversion of any securities of the Company into Capital Interests of the Company;
(xiv) the repurchase, redemption or other acquisition or retirement for value of subordinated Indebtedness or Disqualified Interests pursuant to the provisions similar to those described under Section 4.14 and Section 4.10; provided that all Notes tendered by Holders of the Notes in connection with the related Change of Control Offer or Asset Sale Offer, as applicable, have been repurchased, redeemed or acquired for value in full; and
(xv) payment of dividends on Disqualified Interests of the Company or a Restricted Subsidiary, the issuance of which is permitted by this Indenture.
(c) 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 Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall be determined by an officer of the Company. In the event that a Restricted Payment meets the criteria of more than one of the exceptions described in (i) through (xv) above or is entitled to be made pursuant to the first paragraph of this covenant, the Company may, in its sole discretion, classify, and may later reclassify from time to time, such Restricted Payment or any portion thereof into or among any of such applicable provisions.,
Appears in 1 contract
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, 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 (Ax) dividends or distributions accrued or payable in Equity Interests (other than Disqualified InterestsStock) of the Company or Company, (By) dividends or distributions payable to the Company or a Restricted Subsidiary of the CompanyCompany and (z) purchases of Equity Interests of, and capital contributions to, Restricted Subsidiaries);
(ii2) 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 the Company (other than any such Equity Interests owned by the Company or any Restricted Subsidiary of the Company);
(iii3) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any (x) 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 Company and any of its Restricted Subsidiaries), (y) U.S. Junior Lien Debt or (z) unsecured Indebtedness (excluding any other than Company Indebtedness permitted under clause (vi) between or among the Company and any of the definition of “Permitted Debt”) except (a) a its Restricted Subsidiaries), except, in each case, any payment of interest or principal at the Stated Maturity or (b) the purchase, repurchase or other acquisition of any such Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case, due within one year of the date of such purchase, repurchase or other acquisitionthereof; or
(iv4) make any Restricted Investment (all such payments and other actions set forth in these clauses (i1) through (iv4) above of this Section 4.07(a) 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 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 Fixed Charge Coverage Consolidated Leverage Ratio test set forth in paragraph (a) of Section 4.09(a)4.09 hereof; and
(C) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after August 27, 2012 since the date of this Indenture (excluding Restricted Payments permitted by clauses (i) (provided that at the time of declaring such dividend, such dividend was counted as a Restricted Payment) (ii2), (iii3), (iv4), (v5), (vi6), (vii7), (viii8), (9), (ix10), (x11), (xi), (xii), (xiii), (xiv12) and (xv13) of paragraph (b) of this Section 4.07(b)4.07), is less than the sum, without duplication, of:
(1i) 50% an amount equal to the Company’s Consolidated EBITDA from the beginning of the Consolidated Net Income first fiscal quarter commencing after the date of the Company for the period (taken as one accounting period) from April 2, 2012 this Indenture to the end of the Company’s most recently ended full fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (oravailable, if such Consolidated Net Income for such period is taken as a deficitsingle accounting period, less 100% the product of such deficit)1.75 times the Company’s Consolidated Interest Expense from the beginning of the first fiscal quarter commencing after the date of this Indenture to the end of the Company’s most recently ended full fiscal quarter for which internal financial statements are available, taken as a single accounting period; plus
(2ii) 100% of the aggregate net proceeds, including the fair market value of any property or Capital Interests, cash proceeds received by the Company since August 27, 2012 the date of this Indenture 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 Qualifying Equity Interests and convertible or exchangeable Disqualified Interests) or from the issue or sale of Disqualified Interests Stock or debt securities of the Company that have been converted into such Equity Interests (other than Equity Interests (or Disqualified Interests or convertible debt securities) sold to a Subsidiary of the Company), together with the aggregate amount of cash and Cash Equivalents received by the Company or any of its Restricted Subsidiaries at the time of any such conversion or exchange plus exchange; plus
(iii) to the extent that any Restricted Investment that was made after the date of this Indenture is (a) sold for cash or otherwise cancelled, liquidated, repaid, repurchased or redeemed for cash, or (b) made in an entity that subsequently becomes a Restricted Subsidiary of the Company, the initial amount of such Restricted Investment (if less, the amount by which Indebtedness of cash received upon repayment or sale); plus
(iv) to the extent that any Unrestricted Subsidiary of the Company and its Restricted Subsidiaries designated as such after the date of this Indenture is reduced upon the conversion or exchange subsequent to August 27, 2012 of any Indebtedness or Disqualified Interests which are convertible into or exchangeable for Qualified Capital Interests of the Company or any of its Restricted Subsidiaries, plus
(3) 100% of the amount received, including the fair market value of any property received after August 27, 2012 by means of (A) the sale or other disposition (other than to the Company or a Restricted Subsidiary) of Restricted Investments made by the Company or its Restricted Subsidiaries and repurchases and redemptions of such Restricted Investments from the Company or its Restricted Subsidiaries and repayments of loans or advances which constitute Restricted Investments of the Company or its Restricted Subsidiaries or (B) the sale (other than to the Company or a Restricted Subsidiary) of the Capital Interests of an Unrestricted Subsidiary or a distribution from an Unrestricted Subsidiary (other than in each case to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment) or a dividend from an Unrestricted Subsidiary, plus
(4) in the case of the redesignation of an Unrestricted Subsidiary redesignated as a Restricted Subsidiary after the date of this Indenture, the lesser of (a) the Fair Market Value of the Company’s Restricted Investment in such Subsidiary as of the date of such redesignation or (b) such Fair Market Value as of the merger or consolidation of date on which such Subsidiary was originally designated as an Unrestricted Subsidiary into after the date of this Indenture; plus
(v) 50% of any dividends received in cash by the Company or a Restricted Subsidiary or of the transfer Company that is a Subsidiary Guarantor after the date of assets of this Indenture from an Unrestricted Subsidiary to the Company or a Restricted Subsidiary, the fair market value of the Investment in such Unrestricted Subsidiary (other than an Unrestricted Subsidiary Company, to the extent that such dividends were not otherwise included in the Investment in such Unrestricted Subsidiary constituted a Permitted Investment), plus
(5) $141.0 million. The Board Consolidated Net Income of Directors 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 in the Subsidiary so designated will be deemed to be Restricted Payments or Permitted Investments, in the Company’s discretion, at the time of for such designation and will reduce the amount available for Restricted Payments or Permitted Investments, as applicable. 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 Payments or Permitted Investments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiaryperiod.
(b) The provisions of Section 4.07(a) shall hereof will not prohibit:
(i1) the payment of any dividend or other distribution or the consummation of any irrevocable redemption within 60 sixty (60) days after the date of declaration of the dividend or call for giving of the redemption thereofnotice, as the case may be, if at said the date of declaration or call for notice, the dividend or redemption such payment would have complied with the provisions of this Indenture;
(ii2) the making of any Restricted Payment in exchange for, or out of or with the net cash proceeds of the substantially concurrent a sale (other than to a Subsidiary of the Company) of, Equity Interests of the Company (other than any Disqualified InterestsStock) or from a contribution of common equity capital to the Company; provided that (a) such Restricted Payment is made within sixty (60) days of any such sale of Equity Interests or contribution of common equity capital and (b) the amount of any such net cash proceeds that are utilized for any such redemptionRestricted Payment will not be considered to be net cash proceeds from an Equity Offering for purposes of Section 3.01 hereof;
(3) the payment of any dividend (or, in the case of any partnership or limited liability company, any similar distribution) by a Restricted Subsidiary of the Company to the holders of its Equity Interests on a pro rata basis;
(4) the repurchase, retirementredemption, defeasance or other acquisition shall be excluded from Section 4.07(a)(C)(2);
(iii) the defeasance, redemption, repurchase, replacement, extension, renewal, refinancing or retirement for value of Indebtedness of the Company or other acquisition of subordinated Indebtedness or Disqualified Interests in exchange for or any Subsidiary Guarantor with the net cash proceeds from an incurrence of Permitted Refinancing IndebtednessIndebtedness within sixty (60) days of such incurrence;
(iv5) the declarationso long as no Default or Event of Default has occurred and is continuing, or payment of any dividend or other distribution 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 Restricted Subsidiary of the Company held by any current or former officer, director, employee, consultant director or agent employee of the Company or any of its Restricted Subsidiaries (or Heirs their heirs or other permitted transferees thereofestates) upon death, disability, retirement, severance pursuant to any management or termination of employment or service or in connection with a stock option employee benefit plan or agreement, shareholders equity subscription agreement, stock option agreement, shareholders’ agreement or similar agreement, plan or arrangement, including amendments thereto; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may not exceed: (A) exceed $10.0 5.0 million in any calendar year, with unused amounts being available to be used in any later calendar year; provided that such amount in any calendar year may be increased in an amount not to exceed the net cash proceeds from the sale of Equity Interests (other than Disqualified Interests) of the Company to any officer, director, employee or agent of the Company or any Subsidiary of the Company that occurs after the date of this Indenture, to the extent such net cash proceeds have not otherwise been applied to make Restricted Payments pursuant to Section 4.07(a)(C)(2); plus (B) the cash proceeds of key man life insurance policies received by the Company and its Restricted Subsidiaries after the date of this Indenture that are used for the repurchase, redemption or other acquisition or retirement for value owned by the individual (or such individual’s estate) that is the subject of such insurancetwelve-month period;
(vi6) the repurchase of Equity Interests deemed to occur upon the exercise of options, warrants or other convertible securities stock options to the extent such Equity Interests represent a portion of the exercise price of those stock options;
(7) so long as no Default or Event of Default has occurred and is continuing, warrants 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 issued or incurred on or after the date of this Indenture in accordance with Section 4.09(a) hereof;
(8) payments of cash, dividends, distributions, advances or other convertible securities and Restricted Payments by the Company or any of its Restricted Subsidiaries to allow the payment of cash payments in lieu of the issuance of fractional shares in connection with upon (a) the exercise of options, warrants, options or other convertible securitieswarrants or (b) the conversion or exchange of Capital Stock of any such Person;
(vii9) the declaration and payment of regular quarterly dividends on the Company’s Equity Interests in accordance with past practice and not payments or distributions to exceed $0.05 per share;
(viii) additional Restricted Payments not to exceed $150.0 million after August 27, 2012;
(ix) the repurchase of the Company’s Equity Interests in an amount not to exceed $50.0 million after August 27, 2012;
(x) distributions or payments of Securitization Fees and purchases of Securitization Assets dissenting stockholders pursuant to a Securitization Repurchase Obligation applicable law, pursuant to or in connection with a Qualified Securitization Financingconsolidation, merger or disposition of assets that complies, if applicable, with the provisions of this Indenture;
(xi) any payments made in connection with the consummation of the transactions on substantially the terms described in the Offering Memorandum;
(xii) the payment of intercompany subordinated debt, the incurrence of which was permitted under Section 4.09(b)(vi);
(xiii) the purchase of fractional shares by the Company upon conversion of any securities of the Company into Capital Interests of the Company;
(xiv10) the repurchase, redemption redemption, defeasance or other acquisition or retirement for value of subordinated Indebtedness of the Company or Disqualified Interests pursuant any Subsidiary Guarantor at a purchase price not greater than 101.0% of the principal amount thereof, together with accrued interest, if any, thereon, in the event of a “change of control” in accordance with the terms thereof, which event (a) requires that the Company or such Guarantor make an offer to purchase such Indebtedness in accordance with the provisions similar to those described terms thereof and (b) would also constitute a Change of Control under Section 4.14 and Section 4.10this Indenture; provided that all Notes tendered by Holders of the Notes in connection with the related prior to any such purchase a Change of Control Offer has been made in accordance with the terms hereof and the Issuers have purchased all Notes validly tendered for payment in connection with such Change of Control Offer;
(11) the repurchase, redemption, defeasance or Asset Sale Offer, as applicable, have been repurchased, redeemed other acquisition or acquired retirement for value of Second Lien Debt (a) with the net cash proceeds from an incurrence of Indebtedness permitted to be incurred hereunder within sixty (60) days of such incurrence or (b) otherwise, to the extent that (in fullthe case of this clause (b)) on such date of redemption, defeasance or other acquisition or retirement for value of Second Lien Debt, after giving pro forma effect to such repurchase, redemption, defeasance or other acquisition or retirement for value of Second Lien Debt, the Company would have cash and Cash Equivalents of not less than $25.0 million;
(12) the repurchase, redemption, defeasance or other acquisition or retirement for value of unsecured Indebtedness of a Restricted Subsidiary that is not a Guarantor in an aggregate principal amount not to exceed $5.0 million since the date of this Indenture; and
(xv13) payment so long as no Default or Event of dividends on Disqualified Interests Default has occurred and is continuing, other Restricted Payments in an aggregate amount not to exceed $15.0 million since the date of the Company or a Restricted Subsidiary, the issuance of which is permitted by this Indenture.
(c) 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 For purposes of any non-cash Restricted Payment shall be determined by an officer of the Company. In the event that determining compliance with this covenant, if a Restricted Payment meets the criteria of more than one of the exceptions described in clauses (i1) through (xv12) above of Section 4.07(b) hereof or is entitled to be made pursuant according to the first paragraph of this covenant, the Company may, in its sole discretion, classify, and may later reclassify from time to time, such classify the Restricted Payment or in any portion thereof into or among any of such applicable provisionsmanner that complies with this covenant.
Appears in 1 contract
Restricted Payments. (a) 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 any Equity Interests of the Company’s Borrower or any of its Restricted Subsidiaries’ Equity Interests Subsidiaries (including, without limitation, any payment in connection with any merger or consolidation involving the Company Borrower or any of its Restricted Subsidiaries) or to the direct or indirect holders of any Equity Interests of the Company’s Borrower or any of its Restricted Subsidiaries’ Equity Interests Subsidiaries in their capacity as such (in each case, other than (A) dividends or distributions accrued or payable in Equity Interests (other than Disqualified InterestsStock) of the Company Borrower or (B) dividends or distributions to the Company Borrower or a Restricted Subsidiary of the CompanyBorrower);
; (ii) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the CompanyBorrower) any Equity Interests of the Company Borrower or any direct or indirect parent of the Company (other than any such Equity Interests owned by the Company or any Restricted Subsidiary of the Company);
Borrower; (iii) make any principal payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness of the Borrower or any of the Guarantors that is contractually subordinated to the Notes Loans or the Subsidiary Guarantor’s Guarantee of the Obligations, any Junior Lien Obligations of the Borrower or any Note Guarantee (other than Subsidiary Guarantor and any unsecured Indebtedness permitted under clause (vi) of the definition of Borrower or any Subsidiary Guarantor (“Permitted Restricted Debt”) ), except (a) a payment of interest principal within six months of or principal at Stated the stated Maturity Date thereof; or (b) the purchase, repurchase or other acquisition of any such Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case, due within one year of the date of such purchase, repurchase or other acquisition; or
(iv) make any Restricted Investment (all such payments and other actions set forth in clauses (i) through (iv) above being collectively referred to as “Restricted Payments”), unless, at the time of and immediately 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 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 Fixed Charge Coverage Ratio test set forth in Section 4.09(a); and
(Cb) immediately after giving effect to such transactions on a pro forma basis, the Consolidated Leverage Ratio would not exceed 2.0 to 1.0; and
(c) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company Borrower and its Restricted Subsidiaries after August 27, 2012 the Closing Date (excluding Restricted Payments permitted by clauses (iii) through (provided that xi) of the next succeeding paragraph) is less than, at the time date of declaring such dividenddetermination, such dividend was counted as a Restricted Payment) (ii), (iii), (iv), (v), (vi), (vii), (viii), (ix), (x), (xi), (xii), (xiii), (xiv) and (xv) of Section 4.07(b)), is less than the sum, without duplication, of
(1i) 50% of the Consolidated Net Income of the Company Borrower for the period (taken as one accounting period) from April 2, 2012 the first day of the fiscal quarter beginning after the Closing Date to the end of the CompanyBorrower’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
(2ii) 100% of (a) the aggregate net proceeds, including cash proceeds and (b) the fair market value of (x) marketable securities (other than marketable securities of the Borrower) and (y) any property Permitted Business or Capital Interests, assets used or useful in a Permitted Business to the extent acquired in consideration of Equity Interests (other than Disqualified Stock) of the Borrower received by the Company Borrower since August 27, 2012 the Closing Date as a contribution to its common equity capital or from the issue or sale of Equity Interests of the Company Borrower (other than Disqualified InterestsStock) or from the issue or sale of convertible or exchangeable Disqualified Interests Stock or convertible or exchangeable debt securities of the Company Borrower that have been converted into or exchanged for such Equity Interests (other than Equity Interests (or Disqualified Interests Stock or convertible debt securities) sold to a Subsidiary of the Company), together with the aggregate cash and Cash Equivalents received by the Company or any of its Restricted Subsidiaries at the time of such conversion or exchange plus the amount by which Indebtedness of the Company and its Restricted Subsidiaries is reduced upon the conversion or exchange subsequent to August 27, 2012 of any Indebtedness or Disqualified Interests which are convertible into or exchangeable for Qualified Capital Interests of the Company or any of its Restricted Subsidiaries, plus
(3) 100% of the amount received, including the fair market value of any property received after August 27, 2012 by means of (A) the sale or other disposition (other than to the Company or a Restricted Subsidiary) of Restricted Investments made by the Company or its Restricted Subsidiaries and repurchases and redemptions of such Restricted Investments from the Company or its Restricted Subsidiaries and repayments of loans or advances which constitute Restricted Investments of the Company or its Restricted Subsidiaries or (B) the sale (other than to the Company or a Restricted Subsidiary) of the Capital Interests of an Unrestricted Subsidiary or a distribution from an Unrestricted Subsidiary (other than in each case to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment) or a dividend from an Unrestricted Subsidiary, plus
(4) in the case of the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary or the merger or consolidation of an Unrestricted Subsidiary into the Company or a Restricted Subsidiary or the transfer of assets of an Unrestricted Subsidiary to the Company or a Restricted Subsidiary, the fair market value of the Investment in such Unrestricted Subsidiary (other than an Unrestricted Subsidiary to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted InvestmentBorrower), plus
(5iii) $141.0 millionto the extent that any Restricted Investment that was made after the Closing Date is sold for cash or otherwise cancelled, liquidated or repaid for cash, the lesser of (i) the cash return of capital with respect to such Restricted Investment, including without limitation repayment of principal of any Restricted Investment constituting a loan or advance (less the cost of disposition, if any) and (ii) the initial amount of such Restricted Investment. The Board of Directors 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 in the Subsidiary so designated will be deemed to be Restricted Payments or Permitted Investments, in the Company’s discretion, at the time of such designation and will reduce the amount available for Restricted Payments or Permitted Investments, as applicable. 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 Payments or Permitted Investments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary.
(b) Section 4.07(a) preceding provisions shall 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 call for distribution or giving of the redemption thereofnotice, as the case may be, if at said the date of declaration or call for notice, the dividend or redemption such payment or distribution would have complied with the provisions of this IndentureAgreement;
(ii) the making of any Restricted Payment in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Subsidiary of the CompanyBorrower) of, Equity Interests of the Company Borrower (other than any Disqualified InterestsStock) or from a the substantially concurrent contribution of common equity capital to the CompanyBorrower; provided that the amount of any such net cash proceeds that are utilized for any such redemption, repurchase, retirement, defeasance or other acquisition Restricted Payment shall be excluded from Section 4.07(a)(C)(2)clause (c)(B) of the preceding paragraph and clause (v) of this paragraph;
(iii) the defeasance, redemption, repurchase, replacement, extension, renewal, refinancing or retirement repurchase or other acquisition of subordinated Indebtedness or Disqualified Interests in exchange for Stock of the Borrower or any Guarantor with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness;
(iv) the declaration, or payment of any dividend or other distribution by a Subsidiary of the Company Borrower to the holders of its common Equity Interests on a pro rata basisbasis or on a basis more favorable to the Borrower or a Subsidiary of the Borrower than to the other holders;
(v) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company Borrower or any Subsidiary of the Company Borrower held by any current existing or former officer, directordirector or employee (or their transferees, employee, consultant estates or agent beneficiaries under their estates) of Company the Borrower (or any of its Restricted Subsidiaries (or Heirs or other permitted transferees thereofSubsidiaries) upon deathpursuant to any equity subscription agreement, disability, retirement, severance or termination of employment or service or in connection with a stock option plan or agreement, shareholders agreement, agreement or similar agreement, plan or arrangement, including amendments thereto; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may not exceed: exceed (Aa) $10.0 5.0 million in during any calendar year, year (with unused amounts being available to be used in any later calendar year; provided that such amount in any calendar year may be increased in an being carried forward to the next succeeding calendar year but not any subsequent years); plus (b) the amount not to exceed the of any net cash proceeds received by or contributed to the Borrower from the issuance and sale after the Closing Date of Equity Interests (other than Disqualified InterestsStock) of the Company Borrower or any of its Subsidiaries to its officers, directors or employees that have not been applied to the payment of Restricted Payments pursuant to this clause (v); provided that the amount of any officer, director, employee or agent such net cash proceeds that are utilized for any such Restricted Payment will be excluded from clause (c)(ii) of the Company preceding paragraph and clause (ii) of this paragraph; plus (c) the net cash proceeds of any “key-man” life insurance policies that have not been applied to the payment of Restricted Payments pursuant to this clause (v);
(vi) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the declaration and payment of dividends to holders of any class or series of Disqualified Stock of the Borrower or any preferred stock of any Subsidiary of the Company that occurs after Borrower issued in accordance with the date terms of this Indenture, Agreement to the extent such net cash proceeds have not otherwise been applied to make Restricted Payments pursuant to Section 4.07(a)(C)(2); plus dividends are included in the definition of “Fixed Charges”;
(Ba) the cash proceeds of key man life insurance policies received by the Company and its Restricted Subsidiaries after the date of this Indenture that are used for the repurchase, redemption redemption, defeasance or other acquisition or retirement for value owned by the individual (or such individual’s estate) that is the subject of such insurance;
(vi) the repurchase of Equity Interests deemed to occur upon in connection with the exercise or conversion of stock options, warrants warrants, rights to acquire Equity Interests or other convertible securities or stock appreciation rights, to the extent such Equity Interests represent a portion of the exercise price of those optionstherefor and (b) any repurchase, warrants redemption, defeasance or other convertible securities and acquisition or retirement of Equity Interests in connection with the satisfaction of withholding tax obligations;
(viii) the payment of cash payments in lieu of the issuance of fractional shares in connection with of Equity Interests upon the exercise or conversion of options, warrants, securities exercisable or other convertible securities;
(vii) the declaration and payment of regular quarterly dividends on the Company’s into Equity Interests in accordance with past practice and not to exceed $0.05 per share;
(viii) additional Restricted Payments not to exceed $150.0 million after August 27, 2012of the Borrower;
(ix) the repurchase of the Company’s Equity Interests in an amount not to exceed $50.0 million after August 27purchase, 2012;
(x) distributions or payments of Securitization Fees and purchases of Securitization Assets pursuant to a Securitization Repurchase Obligation in connection with a Qualified Securitization Financing;
(xi) any payments made in connection with the consummation of the transactions on substantially the terms described in the Offering Memorandum;
(xii) the payment of intercompany subordinated debtredemption, the incurrence of which was permitted under Section 4.09(b)(vi);
(xiii) the purchase of fractional shares by the Company upon conversion of any securities of the Company into Capital Interests of the Company;
(xiv) the repurchase, redemption defeasance or other acquisition or retirement for value of subordinated any Restricted Debt (a) at a purchase price not greater than 101.0% of the principal amount of such Indebtedness or Disqualified Interests pursuant to in the event of a Change of Control in accordance with provisions similar to those described under Section 4.14 and 2.05(b)(i) hereof or (b) at a purchase price not greater than 100.0% of the principal amount of such Indebtedness in the event of an Asset Sale in accordance with provisions similar to Section 4.107.05 hereof; provided that all Notes tendered that, prior to or simultaneously with such purchase, redemption, defeasance or other acquisition or retirement, the Borrower (or a third party to the extent permitted by Holders of this Agreement) has made the Notes in connection with the related Change of Control Offer or Asset Sale Offer, as applicable, have been repurchasedwith respect to the Loans as a result of such Change of Control or Asset Sale, redeemed as applicable, and has completed the repayment of all Loans properly elected to be repaid and not withdrawn in connection with such Change of Control Offer or acquired Asset Sale Offer, as applicable;
(x) the purchase, redemption or other acquisition or retirement for value of any Equity Interests of the Borrower or any direct or indirect parent of the Borrower not to exceed $25.0 million in fullthe aggregate;
(xi) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, other Restricted Payments in an aggregate amount since the Closing Date not to exceed $25.0 million; and
(xvxii) payment of dividends on Disqualified Interests of Restricted Payments required to consummate the Company or a Restricted Subsidiary, the issuance of which is permitted by this Indenture.
(c) Specified Permitted Reorganization. The amount of all Restricted Payments (other than cash) shall will be the fair market value on the date of the Restricted Payment (or, in the case of a dividend, on the date of declaration thereof) of the asset(s) or securities proposed to be transferred or issued by the Company Borrower or such Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value For purposes of any non-cash determining compliance with this “Restricted Payment shall be determined by an officer of the Company. In the event that Payments” covenant, if a Restricted Payment meets the criteria of more than one of the exceptions categories of Restricted Payments described in the preceding clauses (i) through - (xv) above or is entitled to be made pursuant to the first paragraph of this covenantxi), the Company mayBorrower will be permitted to divide or classify (or later divide, classify or reclassify in whole or in part in its sole discretion, classify, and may later reclassify from time to time, ) such Restricted Payment or in any portion thereof into or among manner that complies with this Section 7.06. For purposes of determining compliance with any U.S. Dollar-denominated restriction on Restricted Payments denominated in a foreign currency, the U.S. Dollar-equivalent amount of such applicable provisionsRestricted Payment shall be calculated based on the relevant currency exchange rate in effect on the date that such Restricted Payment was made.
Appears in 1 contract
Samples: Second Lien Term Loan Credit Agreement (Nabors Industries LTD)
Restricted Payments. (a) 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 '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 any direct or indirect holders of the Company’s 's or any of its Restricted Subsidiaries’ Subsidiaries Equity Interests in their capacity as such (other than (A) dividends or distributions accrued or (a) payable in Equity Interests (other than Disqualified InterestsStock) of the Company, (b) to the Company or any Wholly Owned Restricted Subsidiary of the Company or (Bc) dividends or distributions to the Company or paid by a Restricted Subsidiary pro rata to the holders of the Companyits common stock);
; (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 the Company (other than any such Equity Interests owned by the Company or any Wholly Owned Restricted Subsidiary of the Company);
; (iii) make any payment on or with respect to, or purchase, redeem, redeem defease or otherwise acquire or retire for value any Indebtedness of the Company or any Restricted Subsidiary that is subordinated to the Notes or any Note Guarantee (other than Indebtedness permitted under clause (vi) of the definition of “Permitted Debt”) thereof, except (a) a payment of interest or principal at Stated Maturity Maturity; or (b) the purchase, repurchase or other acquisition of any such Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case, due within one year of the date of such purchase, repurchase or other acquisition; or
(iv) make any Restricted Investment (all such payments and other actions set forth in clauses (i) through (iv) above being collectively referred to as “"Restricted Payments”"), unless, at the time of and after giving effect to such Restricted Payment:
(A) no 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 Fixed Charge Coverage Ratio test set forth in Section 4.09(a); and
(C) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after August 27, 2012 (excluding Restricted Payments permitted by clauses (i) (provided that at the time of declaring such dividend, such dividend was counted as a Restricted Payment) (ii), (iii), (iv), (v), (vi), (vii), (viii), (ix), (x), (xi), (xii), (xiii), (xiv) and (xv) of Section 4.07(b)), is less than the sum, without duplication, of
(1) 50% of the Consolidated Net Income of the Company for the period (taken as one accounting period) from April 2, 2012 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
(2) 100% of the aggregate net proceeds, including the fair market value of any property or Capital Interests, received by the Company since August 27, 2012 as a contribution to its equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified Interests) or from the issue or sale of Disqualified Interests or debt securities of the Company that have been converted into such Equity Interests (other than Equity Interests (or Disqualified Interests or convertible debt securities) sold to a Subsidiary of the Company), together with the aggregate cash and Cash Equivalents received by the Company or any of its Restricted Subsidiaries at the time of such conversion or exchange plus the amount by which Indebtedness of the Company and its Restricted Subsidiaries is reduced upon the conversion or exchange subsequent to August 27, 2012 of any Indebtedness or Disqualified Interests which are convertible into or exchangeable for Qualified Capital Interests of the Company or any of its Restricted Subsidiaries, plus
(3) 100% of the amount received, including the fair market value of any property received after August 27, 2012 by means of (A) the sale or other disposition (other than to the Company or a Restricted Subsidiary) of Restricted Investments made by the Company or its Restricted Subsidiaries and repurchases and redemptions of such Restricted Investments from the Company or its Restricted Subsidiaries and repayments of loans or advances which constitute Restricted Investments of the Company or its Restricted Subsidiaries or (B) the sale (other than to the Company or a Restricted Subsidiary) of the Capital Interests of an Unrestricted Subsidiary or a distribution from an Unrestricted Subsidiary (other than in each case to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment) or a dividend from an Unrestricted Subsidiary, plus
(4) in the case of the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary or the merger or consolidation of an Unrestricted Subsidiary into the Company or a Restricted Subsidiary or the transfer of assets of an Unrestricted Subsidiary to the Company or a Restricted Subsidiary, the fair market value of the Investment in such Unrestricted Subsidiary (other than an Unrestricted Subsidiary to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment), plus
(5) $141.0 million. The Board of Directors 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 in the Subsidiary so designated will be deemed to be Restricted Payments or Permitted Investments, in the Company’s discretion, at the time of such designation and will reduce the amount available for Restricted Payments or Permitted Investments, as applicable. 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 Payments or Permitted Investments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary.
(b) Section 4.07(a) shall not prohibit:
(i) the payment of any dividend or other distribution or redemption within 60 days after the date of declaration or call for redemption thereof, if at said date of declaration or call for redemption such payment would have complied with the provisions of this Indenture;
(ii) the making of any Restricted Payment in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Subsidiary of the Company) of, Equity Interests of the Company (other than any Disqualified Interests) or from a contribution of capital to the Company; 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 Section 4.07(a)(C)(2);
(iii) the defeasance, redemption, repurchase, replacement, extension, renewal, refinancing or retirement or other acquisition of subordinated Indebtedness or Disqualified Interests in exchange for or with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness;
(iv) the declaration, or payment of any dividend or other distribution 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 current or former officer, director, employee, consultant or agent of Company or any of its Restricted Subsidiaries (or Heirs or other permitted transferees thereof) upon death, disability, retirement, severance or termination of employment or service or in connection with a stock option plan or agreement, shareholders agreement, or similar agreement, plan or arrangement, including amendments thereto; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may not exceed: (A) $10.0 million in any calendar year, with unused amounts being available to be used in any later calendar year; provided that such amount in any calendar year may be increased in an amount not to exceed the net cash proceeds from the sale of Equity Interests (other than Disqualified Interests) of the Company to any officer, director, employee or agent of the Company or any Subsidiary of the Company that occurs after the date of this Indenture, to the extent such net cash proceeds have not otherwise been applied to make Restricted Payments pursuant to Section 4.07(a)(C)(2); plus (B) the cash proceeds of key man life insurance policies received by the Company and its Restricted Subsidiaries after the date of this Indenture that are used for the repurchase, redemption or other acquisition or retirement for value owned by the individual (or such individual’s estate) that is the subject of such insurance;
(vi) the repurchase of Equity Interests deemed to occur upon the exercise of options, warrants or other convertible securities to the extent such Equity Interests represent a portion of the exercise price of those options, warrants or other convertible securities and cash payments in lieu of the issuance of fractional shares in connection with the exercise of options, warrants, or other convertible securities;
(vii) the declaration and payment of regular quarterly dividends on the Company’s Equity Interests in accordance with past practice and not to exceed $0.05 per share;
(viii) additional Restricted Payments not to exceed $150.0 million after August 27, 2012;
(ix) the repurchase of the Company’s Equity Interests in an amount not to exceed $50.0 million after August 27, 2012;
(x) distributions or payments of Securitization Fees and purchases of Securitization Assets pursuant to a Securitization Repurchase Obligation in connection with a Qualified Securitization Financing;
(xi) any payments made in connection with the consummation of the transactions on substantially the terms described in the Offering Memorandum;
(xii) the payment of intercompany subordinated debt, the incurrence of which was permitted under Section 4.09(b)(vi);
(xiii) the purchase of fractional shares by the Company upon conversion of any securities of the Company into Capital Interests of the Company;
(xiv) the repurchase, redemption or other acquisition or retirement for value of subordinated Indebtedness or Disqualified Interests pursuant to the provisions similar to those described under Section 4.14 and Section 4.10; provided that all Notes tendered by Holders of the Notes in connection with the related Change of Control Offer or Asset Sale Offer, as applicable, have been repurchased, redeemed or acquired for value in full; and
(xv) payment of dividends on Disqualified Interests of the Company or a Restricted Subsidiary, the issuance of which is permitted by this Indenture.
(c) 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 Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall be determined by an officer of the Company. In the event that a Restricted Payment meets the criteria of more than one of the exceptions described in (i) through (xv) above or is entitled to be made pursuant to the first paragraph of this covenant, the Company may, in its sole discretion, classify, and may later reclassify from time to time, such Restricted Payment or any portion thereof into or among any of such applicable provisions.
Appears in 1 contract
Samples: Indenture (Plainwell Inc)
Restricted Payments. (a) The Company Partnership 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 of the Partnership or of any of its Restricted Subsidiaries’ Equity Interests Subsidiaries (including, without limitation, any payment in connection with any merger or consolidation involving the Company Partnership or any of its Restricted Subsidiaries) or to the direct or indirect holders of the Company’s Equity Interests of the Partnership or of any of its Restricted Subsidiaries’ Equity Interests Subsidiaries in their capacity as such (other than (A) dividends or distributions accrued or payable in Equity Interests of the Partnership (other than Disqualified InterestsEquity) of the Company or (B) and other than dividends or distributions payable to the Company Partnership or a Restricted Subsidiary of the CompanyPartnership);.
(ii) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Companyan Issuer) any Equity Interests of the Company Partnership or of any direct or indirect parent of the Company its Restricted Subsidiaries (other than any such Equity Interests owned by the Company Partnership or any of its Restricted Subsidiary of the CompanySubsidiaries);
(iii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness that is subordinated to the Notes Subordinated Obligation or any Note Guarantee (other than Indebtedness permitted under clause (vi) of the definition of “Permitted Debt”) Guarantor Subordinated Obligation, except (a) a payment of interest or principal at the Stated Maturity or (b) the purchase, repurchase or other acquisition of any such Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case, due within one year of the date of such purchase, repurchase or other acquisition; orthereof;
(iv) make any Restricted Investment other than a Permitted Investment or a Permitted Business Investment (all such payments and other actions set forth in clauses (i) through (iv) above being collectively referred to as “Restricted Payments”), unless, at the time of and after giving effect to such Restricted Payment:
, no Default (Aexcept a Reporting Default) no or Event of Default shall have occurred and be continuing or would occur as a consequence thereof;thereof and either:
(BA) 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 Fixed Charge Coverage Ratio test set forth in Section 4.09(a); and
(C) for the Partnership’s four most recent fiscal quarters for which internal financial statements are available is not less than 1.75 to 1.0, such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company Partnership and its Restricted Subsidiaries after August 27, 2012 (excluding during the quarter in which such Restricted Payments permitted by clauses (i) (provided that at the time of declaring such dividend, such dividend was counted as a Restricted Payment) (ii), (iii), (iv), (v), (vi), (vii), (viii), (ix), (x), (xi), (xii), (xiii), (xiv) and (xv) of Section 4.07(b))Payment is made, is less than the sum, without duplication, of
(1i) 50% Available Cash from Operating Surplus as of the Consolidated Net Income of the Company for the period (taken as one accounting period) from April 2, 2012 to the end of the Companyimmediately preceding quarter, plus
(ii) the sum of (1) the aggregate net cash proceeds of any (i) substantially concurrent capital contribution to the Partnership from any Person (other than to a Restricted Subsidiary of the Partnership) made after the Issue Date or (ii) substantially concurrent issuance and sale (other than to a Restricted Subsidiary of the Partnership) made after the Issue Date of Equity Interests (other than Disqualified Equity) of the Partnership or from the issuance or sale (other than to a Restricted Subsidiary of the Partnership) made after the Issue Date of convertible or exchangeable Disqualified Equity or convertible or exchangeable debt securities of the Partnership that have been converted into or exchanged for such Equity Interests (other than Disqualified Equity), and (2) the fair market value of any Permitted Business or long-term tangible assets that are useful in a Permitted Business to the extent acquired in consideration of Equity Interests of the Partnership (other than Disqualified Equity) since the Issue Date, plus
(iii) to the extent that any Restricted Investment that was made after the Issue Date is sold for cash or Cash Equivalents or otherwise liquidated or repaid for cash or Cash Equivalents, the lesser of the refund of capital or similar payment made in cash or Cash Equivalents with respect to such Restricted Investment (less the cost of such disposition, if any) and the initial amount of such Restricted Investment (other than to a Restricted Subsidiary of the Partnership), plus
(iv) the net reduction in Restricted Investments resulting from dividends, repayments of loans or advances, or other transfers of assets in each case to the Partnership or any of its Restricted Subsidiaries from any Person (including, without limitation, Unrestricted Subsidiaries) or from redesignations of Unrestricted Subsidiaries as Restricted Subsidiaries, to the extent such amounts have not been included in Available Cash from Operating Surplus for any period commencing on or after the Issue Date (items (ii), (iii) and (iv) of this clause (A) being referred to as “Incremental Funds”), minus
(v) the aggregate amount of Incremental Funds previously expended pursuant to this clause (A) or clause (B) below; or
(B) if the Fixed Charge Coverage Ratio for the Partnership’s four most recently ended recent fiscal quarter quarters for which internal financial statements are available at the time of is less than 1.75 to 1.0, such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit), plus
(2) 100% of the aggregate net proceeds, including the fair market value of any property or Capital Interests, received by the Company since August 27, 2012 as a contribution to its equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified Interests) or from the issue or sale of Disqualified Interests or debt securities of the Company that have been converted into such Equity Interests (other than Equity Interests (or Disqualified Interests or convertible debt securities) sold to a Subsidiary of the Company)Payment, together with the aggregate cash and Cash Equivalents received amount of all other Restricted Payments made by the Company or any of its Restricted Subsidiaries at the time of such conversion or exchange plus the amount by which Indebtedness of the Company Partnership and its Restricted Subsidiaries during the quarter in which such Restricted Payment is reduced upon the conversion or exchange subsequent to August 27, 2012 made (such Restricted Payments for purposes of any Indebtedness or Disqualified Interests which are convertible into or exchangeable for Qualified Capital Interests this clause (B) meaning only distributions on common units of the Company or any Partnership, plus the related distribution on the general partner interest), is less than the sum, without duplication, of:
(i) $50.0 million less the aggregate amount of all prior Restricted Payments made by the Partnership and its Restricted SubsidiariesSubsidiaries pursuant to this clause (B)(i) since the Issue Date, plus
(3ii) 100% of Incremental Funds to the amount received, including the fair market value of any property received after August 27, 2012 by means of extent not previously expended pursuant to this clause (B) or clause (A) the sale or other disposition (other than to the Company or a Restricted Subsidiary) of Restricted Investments made by the Company or its Restricted Subsidiaries and repurchases and redemptions of such Restricted Investments from the Company or its Restricted Subsidiaries and repayments of loans or advances which constitute Restricted Investments of the Company or its Restricted Subsidiaries or (B) the sale (other than to the Company or a Restricted Subsidiary) of the Capital Interests of an Unrestricted Subsidiary or a distribution from an Unrestricted Subsidiary (other than in each case to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment) or a dividend from an Unrestricted Subsidiary, plus
(4) in the case of the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary or the merger or consolidation of an Unrestricted Subsidiary into the Company or a Restricted Subsidiary or the transfer of assets of an Unrestricted Subsidiary to the Company or a Restricted Subsidiary, the fair market value of the Investment in such Unrestricted Subsidiary (other than an Unrestricted Subsidiary to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment), plus
(5) $141.0 million. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Defaultabove. For purposes of making such determinationclauses (A) and (B) above, all outstanding Investments by the Company term “substantially concurrent” means that either (x) the offering was consummated within 120 days of the date of determination or (y) the offering was consummated within 24 months of the date of determination and its Restricted Subsidiaries the proceeds therefrom were used for the purposes expressly stated in the Subsidiary so designated will documents related thereto and may be deemed traced to be Restricted Payments such use by segregating, separating or Permitted Investments, in otherwise specifically identifying the Company’s discretion, at the time movement of such designation and will reduce the amount available for Restricted Payments or Permitted Investments, as applicable. 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 Payments or Permitted Investments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiaryproceeds.
(b) So long as no Default (except a Reporting Default) has occurred and is continuing or would be caused thereby (except with respect to clause (i) below under which the payment of a distribution or dividend is permitted), the preceding provisions of this Section 4.07(a) 4.08 shall not prohibit:
(i) the payment by the Partnership or any of its Restricted Subsidiaries of any dividend or other distribution or redemption dividend within 60 days after the date of declaration or call for redemption thereof, if at said date of declaration or call for redemption such payment would have complied with the provisions of this Indenture;
(ii) the making redemption, repurchase, retirement, defeasance or other acquisition of any Restricted Payment Subordinated Obligation or any Guarantor Subordinated Obligation or of any Equity Interests of the Partnership in exchange for, or out of the net cash proceeds of, a substantially concurrent (a) capital contribution to the Partnership from any Person (other than a Restricted Subsidiary of the substantially concurrent Partnership) or (b) sale (other than to a Restricted Subsidiary of the CompanyPartnership) of, of Equity Interests of the Company (other than any Disqualified InterestsEquity) of the Partnership (a sale will be deemed substantially concurrent if such redemption, repurchase, retirement, defeasance or from a contribution of capital to the Companyother acquisition occurs not more than 120 days after such sale); 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 or deducted from Section 4.07(a)(C)(2)the calculation of Available Cash from Operating Surplus and Incremental Funds;
(iii) the defeasance, redemption, repurchase, replacementretirement, extension, renewal, refinancing or retirement defeasance or other acquisition of subordinated Indebtedness any Subordinated Obligation or Disqualified Interests in exchange for or Guarantor Subordinated Obligation with the net cash proceeds from an incurrence of of, or in exchange for, Permitted Refinancing Indebtedness;
(iv) the declaration, or payment of any distribution or dividend or other distribution by a Restricted Subsidiary of to the Company Partnership or to the holders of its common the Equity Interests (other than Disqualified Equity) of such Restricted Subsidiary on a pro rata basis;; and
(v) the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company Partnership or any Subsidiary of the Company held by any current or former officer, director, employee, consultant or agent of Company or any of its Restricted Subsidiaries (pursuant to any management equity subscription agreement or Heirs equity option agreement or other permitted transferees thereof) upon death, disability, retirement, severance employee benefit plan or termination of employment to satisfy obligations under any Equity Interests appreciation rights or service or in connection with a stock option plan or agreement, shareholders agreement, or similar agreement, plan or arrangement, including amendments thereto; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may shall not exceed: (A) exceed $10.0 3.0 million in any calendar year. In computing the amount of Restricted Payments previously made for purposes of Section 4.08(a), with unused amounts being available to be used Restricted Payments made under clauses (i) (but only if the declaration of such dividend or other distribution has not been counted in any later calendar year; provided that such amount in any calendar year may be increased in an amount not to exceed the net cash proceeds from the sale of Equity Interests (other than Disqualified Interestsa prior period) of the Company to any officer, director, employee or agent of the Company or any Subsidiary of the Company that occurs after the date of this Indentureand, to the extent such net cash proceeds have not otherwise been applied of amounts paid to make holders other than the Partnership or any of its Restricted Subsidiaries, (iv) of this Section 4.08(b) shall be included, and Restricted Payments pursuant to Section 4.07(a)(C)(2made under clauses (ii); plus , (Biii) the cash proceeds of key man life insurance policies received by the Company and its Restricted Subsidiaries after the date of this Indenture that are used for the repurchase(v) and, redemption or other acquisition or retirement for value owned by the individual (or such individual’s estate) that is the subject of such insurance;
(vi) the repurchase of Equity Interests deemed to occur upon the exercise of options, warrants or other convertible securities except to the extent such Equity Interests represent a portion noted above, (iv) of the exercise price of those options, warrants or other convertible securities and cash payments in lieu of the issuance of fractional shares in connection with the exercise of options, warrants, or other convertible securities;
(viithis Section 4.08(b) the declaration and payment of regular quarterly dividends on the Company’s Equity Interests in accordance with past practice and shall not to exceed $0.05 per share;
(viii) additional Restricted Payments not to exceed $150.0 million after August 27, 2012;
(ix) the repurchase of the Company’s Equity Interests in an amount not to exceed $50.0 million after August 27, 2012;
(x) distributions or payments of Securitization Fees and purchases of Securitization Assets pursuant to a Securitization Repurchase Obligation in connection with a Qualified Securitization Financing;
(xi) any payments made in connection with the consummation of the transactions on substantially the terms described in the Offering Memorandum;
(xii) the payment of intercompany subordinated debt, the incurrence of which was permitted under Section 4.09(b)(vi);
(xiii) the purchase of fractional shares by the Company upon conversion of any securities of the Company into Capital Interests of the Company;
(xiv) the repurchase, redemption or other acquisition or retirement for value of subordinated Indebtedness or Disqualified Interests pursuant to the provisions similar to those described under Section 4.14 and Section 4.10; provided that all Notes tendered by Holders of the Notes in connection with the related Change of Control Offer or Asset Sale Offer, as applicable, have been repurchased, redeemed or acquired for value in full; and
(xv) payment of dividends on Disqualified Interests of the Company or a Restricted Subsidiary, the issuance of which is permitted by this Indenture.
(c) be included. 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 Partnership 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 4.08 shall be determined determined, in the case of amounts under $10.0 million, by an officer of the Company. In General Partner and, in the event that a Restricted Payment meets case of amounts over $10.0 million, by the criteria Board of more than one Directors of the exceptions described in (i) through (xv) above or is entitled to General Partner whose resolution with respect thereto shall be made pursuant delivered to the first paragraph of this covenant, the Company may, in its sole discretion, classify, and may later reclassify from time to time, such Restricted Payment or any portion thereof into or among any of such applicable provisionsTrustee.
Appears in 1 contract
Restricted Payments. (a) The Company shall Parent will not, and shall will not permit any of its the 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 Equity Interests of Parent or any of its Restricted Subsidiaries’ Equity Interests Subsidiary (including, without limitation, any payment in connection with any merger merger, consolidation or consolidation amalgamation involving the Company Parent or any of its the Restricted Subsidiaries) or to the direct or indirect holders of the Company’s Parent's or any of its the Restricted Subsidiaries’ ' Equity Interests in their capacity as such (other than (A) dividends or distributions accrued or payable in Equity Interests (other than Disqualified InterestsStock) of Parent and other than dividends or distributions payable to Parent, the Company or (B) dividends or distributions to the Company or a any other Restricted Subsidiary of the CompanySubsidiary);
(iiB) purchase, redeem repurchase, redeem, retire or otherwise acquire or retire for value (including, without limitation, in connection with any merger merger, consolidation or consolidation involving the Companyamalgamation involving) any Equity Interests of the Company Parent or any direct or indirect parent of the Company Parent held by any Person (other than any such Equity Interests owned held by the Company Parent or any Restricted Subsidiary) or any Equity Interests of any Restricted Subsidiary held by an affiliate of the CompanyParent (other than Equity Interests held by Parent or any Restricted Subsidiary) (in each case other than in exchange for Equity Interests of Parent that is not Disqualified Stock);
(iiiC) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness of the Company or any Guarantor that is contractually subordinated to the Notes or to any Note Guarantee (other than excluding any intercompany Indebtedness permitted under clause (vi) between or among the Company and any of the definition of “Permitted Debt”) Guarantors), except (a) a payment of regularly scheduled interest or principal at the Stated Maturity or (b) the purchase, repurchase or other acquisition of any such Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case, due within one year of the date of such purchase, repurchase or other acquisitionthereof; or
(ivD) make any Restricted Investment (all such payments and other actions set forth in these clauses (iA) through (ivD) 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 wouldParent could Incur, 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 Fixed Charge Consolidated Interest Coverage Ratio test set forth in Section 4.09(a)4.08(a) ("Incurrence of Indebtedness and Issuance of Preferred Stock") hereof; and
(C3) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by Parent and the Company and its Restricted Subsidiaries after August 27, 2012 since the Issue Date (excluding Restricted Payments permitted by clauses (i) (provided that at the time of declaring such dividend, such dividend was counted as a Restricted Payment) (ii2), (iii), (iv), (v), (vi), (vii), (viii), (ix), (x), (xi), (xii), (xiii), (xiv3) and of subsection (xvb) of this Section 4.07(b)4.07), is less than the sum, without duplication, of
(1) 50% of the Consolidated Net Income of the Company for the period (taken as one accounting period) from April 2, 2012 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
(2) 100% of the aggregate net proceeds, including the fair market value of any property or Capital Interests, received by the Company since August 27, 2012 as a contribution to its equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified Interests) or from the issue or sale of Disqualified Interests or debt securities of the Company that have been converted into such Equity Interests (other than Equity Interests (or Disqualified Interests or convertible debt securities) sold to a Subsidiary of the Company), together with the aggregate cash and Cash Equivalents received by the Company or any of its Restricted Subsidiaries at the time of such conversion or exchange plus the amount by which Indebtedness of the Company and its Restricted Subsidiaries is reduced upon the conversion or exchange subsequent to August 27, 2012 of any Indebtedness or Disqualified Interests which are convertible into or exchangeable for Qualified Capital Interests of the Company or any of its Restricted Subsidiaries, plus
(3) 100% of the amount received, including the fair market value of any property received after August 27, 2012 by means of (A) the sale or other disposition (other than to the Company or a Restricted Subsidiary) of Restricted Investments made by the Company or its Restricted Subsidiaries and repurchases and redemptions of such Restricted Investments from the Company or its Restricted Subsidiaries and repayments of loans or advances which constitute Restricted Investments of the Company or its Restricted Subsidiaries or (B) the sale (other than to the Company or a Restricted Subsidiary) of the Capital Interests of an Unrestricted Subsidiary or a distribution from an Unrestricted Subsidiary (other than in each case to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment) or a dividend from an Unrestricted Subsidiary, plus
(4) in the case of the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary or the merger or consolidation of an Unrestricted Subsidiary into the Company or a Restricted Subsidiary or the transfer of assets of an Unrestricted Subsidiary to the Company or a Restricted Subsidiary, the fair market value of the Investment in such Unrestricted Subsidiary (other than an Unrestricted Subsidiary to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment), plus
(5) $141.0 million. The Board of Directors 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 in the Subsidiary so designated will be deemed to be Restricted Payments or Permitted Investments, in the Company’s discretion, at the time of such designation and will reduce the amount available for Restricted Payments or Permitted Investments, as applicable. 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 Payments or Permitted Investments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary.
(b) Section 4.07(a) shall not prohibit:
(i) the payment of any dividend or other distribution or redemption within 60 days after the date of declaration or call for redemption thereof, if at said date of declaration or call for redemption such payment would have complied with the provisions of this Indenture;
(ii) the making of any Restricted Payment in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Subsidiary of the Company) of, Equity Interests of the Company (other than any Disqualified Interests) or from a contribution of capital to the Company; 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 Section 4.07(a)(C)(2);
(iii) the defeasance, redemption, repurchase, replacement, extension, renewal, refinancing or retirement or other acquisition of subordinated Indebtedness or Disqualified Interests in exchange for or with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness;
(iv) the declaration, or payment of any dividend or other distribution 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 current or former officer, director, employee, consultant or agent of Company or any of its Restricted Subsidiaries (or Heirs or other permitted transferees thereof) upon death, disability, retirement, severance or termination of employment or service or in connection with a stock option plan or agreement, shareholders agreement, or similar agreement, plan or arrangement, including amendments thereto; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may not exceed: (A) $10.0 million in any calendar year, with unused amounts being available to be used in any later calendar year; provided that such amount in any calendar year may be increased in an amount not to exceed the net cash proceeds from the sale of Equity Interests (other than Disqualified Interests) of the Company to any officer, director, employee or agent of the Company or any Subsidiary of the Company that occurs after the date of this Indenture, to the extent such net cash proceeds have not otherwise been applied to make Restricted Payments pursuant to Section 4.07(a)(C)(2); plus (B) the cash proceeds of key man life insurance policies received by the Company and its Restricted Subsidiaries after the date of this Indenture that are used for the repurchase, redemption or other acquisition or retirement for value owned by the individual (or such individual’s estate) that is the subject of such insurance;
(vi) the repurchase of Equity Interests deemed to occur upon the exercise of options, warrants or other convertible securities to the extent such Equity Interests represent a portion of the exercise price of those options, warrants or other convertible securities and cash payments in lieu of the issuance of fractional shares in connection with the exercise of options, warrants, or other convertible securities;
(vii) the declaration and payment of regular quarterly dividends on the Company’s Equity Interests in accordance with past practice and not to exceed $0.05 per share;
(viii) additional Restricted Payments not to exceed $150.0 million after August 27, 2012;
(ix) the repurchase of the Company’s Equity Interests in an amount not to exceed $50.0 million after August 27, 2012;
(x) distributions or payments of Securitization Fees and purchases of Securitization Assets pursuant to a Securitization Repurchase Obligation in connection with a Qualified Securitization Financing;
(xi) any payments made in connection with the consummation of the transactions on substantially the terms described in the Offering Memorandum;
(xii) the payment of intercompany subordinated debt, the incurrence of which was permitted under Section 4.09(b)(vi);
(xiii) the purchase of fractional shares by the Company upon conversion of any securities of the Company into Capital Interests of the Company;
(xiv) the repurchase, redemption or other acquisition or retirement for value of subordinated Indebtedness or Disqualified Interests pursuant to the provisions similar to those described under Section 4.14 and Section 4.10; provided that all Notes tendered by Holders of the Notes in connection with the related Change of Control Offer or Asset Sale Offer, as applicable, have been repurchased, redeemed or acquired for value in full; and
(xv) payment of dividends on Disqualified Interests of the Company or a Restricted Subsidiary, the issuance of which is permitted by this Indenture.
(c) 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 Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall be determined by an officer of the Company. In the event that a Restricted Payment meets the criteria of more than one of the exceptions described in (i) through (xv) above or is entitled to be made pursuant to the first paragraph of this covenant, the Company may, in its sole discretion, classify, and may later reclassify from time to time, such Restricted Payment or any portion thereof into or among any of such applicable provisions.
Appears in 1 contract
Samples: Indenture (Ocean Rig UDW Inc.)
Restricted Payments. (a) The Company shall FEEC will not, and shall will not permit any of its the Restricted Subsidiaries of FEEC to, directly or indirectly:
(i) declare or pay any dividend or make any other payment or distribution on account of the CompanyFEEC’s or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company FEEC or any of its Restricted Subsidiaries) or to the direct or indirect holders of the CompanyFEEC’s or any of its Restricted Subsidiaries’ Equity Interests in their capacity as such (other than (Ax) dividends or distributions accrued or payable in Equity Interests (other than Disqualified InterestsStock) of the Company or FEEC, (By) dividends or distributions payable to FEEC from its Restricted Subsidiaries (other than the Company and its Restricted Subsidiaries) or (z) dividends or distributions payable to the Company or a from its Restricted Subsidiary of the CompanySubsidiaries);
(ii) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving FEEC or the Company) any Equity Interests of the Company FEEC or any direct or indirect parent of the Company (other than any such Equity Interests owned by the Company FEEC or any Restricted Subsidiary of the Company);
(iii) make any payment on or with respect to, or call for redemption, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness of the Company or any Guarantor that is contractually subordinated to the Notes or to any Note Guarantee (other than excluding any intercompany Indebtedness permitted under clause (vi) between or among FEEC and any of the definition of “Permitted Debt”its Restricted Subsidiaries) except (a) a payment of interest or principal at the Stated Maturity or thereof;
(biv) the purchaseCompany shall not pay, repay or prepay any principal, interest or other amount on or in respect of any liabilities (including by way of redemption, repurchase or other acquisition defeasance) to FEEC without the consent of the Required Noteholders, provided that the Company may make any such Indebtedness payments to FEEC in anticipation of satisfying a sinking fund obligation, principal installment or final maturityamounts required for FEEC to pay, in each casecase without duplication, due within one (v) franchise and excise taxes and other fees, taxes and expenses required to maintain their corporate existence; (w) foreign, federal, state and local income taxes, to the extent such income taxes are attributable to the income of the Company and its Subsidiaries; provided that the amount of such payments in any fiscal year does not exceed the amount that FEEC is required to pay in respect of foreign, federal, state and local income taxes for such fiscal year; (x) customary salary, bonus and other benefits payable to officers and employees of FEEC that are paid in the ordinary course of business to the extent such salaries, bonuses and other benefits are attributable to the ownership or operation of the Company and its Restricted Subsidiaries; (y) general corporate operating and overhead costs and expenses of FEEC and its Subsidiaries that are incurred in the ordinary course of business to the extent such costs and expenses are attributable to the ownership or operation of the Company and its Restricted Subsidiaries; and (z) fees and expenses of FEEC related to any unsuccessful equity or debt offering of FEEC, in an aggregate amount, taken together with all other payments made pursuant to clauses (v), (w), (x), (y) and (z) during any fiscal year of the date of Company, not to exceed $14.0 million during any such purchase, repurchase or other acquisitionfiscal year; or
(ivv) make any Restricted Investment Investment; (all such payments and other actions set forth in these clauses (i) through (ivv) above being collectively referred to as “Restricted Payments”), unless, at without the time of and after giving effect to such Restricted Payment:
(A) no 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 consent 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 Section 4.09(a); and
(C) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after August 27, 2012 (excluding Restricted Payments permitted by clauses (i) (provided that at the time of declaring such dividend, such dividend was counted as a Restricted Payment) (ii), (iii), (iv), (v), (vi), (vii), (viii), (ix), (x), (xi), (xii), (xiii), (xiv) and (xv) of Section 4.07(b)), is less than the sum, without duplication, of
(1) 50% of the Consolidated Net Income of the Company for the period (taken as one accounting period) from April 2, 2012 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
(2) 100% of the aggregate net proceeds, including the fair market value of any property or Capital Interests, received by the Company since August 27, 2012 as a contribution to its equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified Interests) or from the issue or sale of Disqualified Interests or debt securities of the Company that have been converted into such Equity Interests (other than Equity Interests (or Disqualified Interests or convertible debt securities) sold to a Subsidiary of the Company), together with the aggregate cash and Cash Equivalents received by the Company or any of its Restricted Subsidiaries at the time of such conversion or exchange plus the amount by which Indebtedness of the Company and its Restricted Subsidiaries is reduced upon the conversion or exchange subsequent to August 27, 2012 of any Indebtedness or Disqualified Interests which are convertible into or exchangeable for Qualified Capital Interests of the Company or any of its Restricted Subsidiaries, plus
(3) 100% of the amount received, including the fair market value of any property received after August 27, 2012 by means of (A) the sale or other disposition (other than to the Company or a Restricted Subsidiary) of Restricted Investments made by the Company or its Restricted Subsidiaries and repurchases and redemptions of such Restricted Investments from the Company or its Restricted Subsidiaries and repayments of loans or advances which constitute Restricted Investments of the Company or its Restricted Subsidiaries or (B) the sale (other than to the Company or a Restricted Subsidiary) of the Capital Interests of an Unrestricted Subsidiary or a distribution from an Unrestricted Subsidiary (other than in each case to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment) or a dividend from an Unrestricted Subsidiary, plus
(4) in the case of the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary or the merger or consolidation of an Unrestricted Subsidiary into the Company or a Restricted Subsidiary or the transfer of assets of an Unrestricted Subsidiary to the Company or a Restricted Subsidiary, the fair market value of the Investment in such Unrestricted Subsidiary (other than an Unrestricted Subsidiary to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment), plus
(5) $141.0 million. The Board of Directors 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 in the Subsidiary so designated will be deemed to be Restricted Payments or Permitted Investments, in the Company’s discretion, at the time of such designation and will reduce the amount available for Restricted Payments or Permitted Investments, as applicable. 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 Payments or Permitted Investments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted SubsidiaryRequired Noteholders.
(b) Section 4.07(a) shall not prohibit:
(i) the payment of any dividend or other distribution or redemption within 60 days after the date of declaration or call for redemption thereof, if at said date of declaration or call for redemption such payment would have complied with the provisions of this Indenture;
(ii) the making of any Restricted Payment in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Subsidiary of the Company) of, Equity Interests of the Company (other than any Disqualified Interests) or from a contribution of capital to the Company; 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 Section 4.07(a)(C)(2);
(iii) the defeasance, redemption, repurchase, replacement, extension, renewal, refinancing or retirement or other acquisition of subordinated Indebtedness or Disqualified Interests in exchange for or with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness;
(iv) the declaration, or payment of any dividend or other distribution 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 current or former officer, director, employee, consultant or agent of Company or any of its Restricted Subsidiaries (or Heirs or other permitted transferees thereof) upon death, disability, retirement, severance or termination of employment or service or in connection with a stock option plan or agreement, shareholders agreement, or similar agreement, plan or arrangement, including amendments thereto; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may not exceed: (A) $10.0 million in any calendar year, with unused amounts being available to be used in any later calendar year; provided that such amount in any calendar year may be increased in an amount not to exceed the net cash proceeds from the sale of Equity Interests (other than Disqualified Interests) of the Company to any officer, director, employee or agent of the Company or any Subsidiary of the Company that occurs after the date of this Indenture, to the extent such net cash proceeds have not otherwise been applied to make Restricted Payments pursuant to Section 4.07(a)(C)(2); plus (B) the cash proceeds of key man life insurance policies received by the Company and its Restricted Subsidiaries after the date of this Indenture that are used for the repurchase, redemption or other acquisition or retirement for value owned by the individual (or such individual’s estate) that is the subject of such insurance;
(vi) the repurchase of Equity Interests deemed to occur upon the exercise of options, warrants or other convertible securities to the extent such Equity Interests represent a portion of the exercise price of those options, warrants or other convertible securities and cash payments in lieu of the issuance of fractional shares in connection with the exercise of options, warrants, or other convertible securities;
(vii) the declaration and payment of regular quarterly dividends on the Company’s Equity Interests in accordance with past practice and not to exceed $0.05 per share;
(viii) additional Restricted Payments not to exceed $150.0 million after August 27, 2012;
(ix) the repurchase of the Company’s Equity Interests in an amount not to exceed $50.0 million after August 27, 2012;
(x) distributions or payments of Securitization Fees and purchases of Securitization Assets pursuant to a Securitization Repurchase Obligation in connection with a Qualified Securitization Financing;
(xi) any payments made in connection with the consummation of the transactions on substantially the terms described in the Offering Memorandum;
(xii) the payment of intercompany subordinated debt, the incurrence of which was permitted under Section 4.09(b)(vi);
(xiii) the purchase of fractional shares by the Company upon conversion of any securities of the Company into Capital Interests of the Company;
(xiv) the repurchase, redemption or other acquisition or retirement for value of subordinated Indebtedness or Disqualified Interests pursuant to the provisions similar to those described under Section 4.14 and Section 4.10; provided that all Notes tendered by Holders of the Notes in connection with the related Change of Control Offer or Asset Sale Offer, as applicable, have been repurchased, redeemed or acquired for value in full; and
(xv) payment of dividends on Disqualified Interests of the Company or a Restricted Subsidiary, the issuance of which is permitted by this Indenture.
(c) 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 Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall be determined by an officer of the Company. In the event that a Restricted Payment meets the criteria of more than one of the exceptions described in (i) through (xv) above or is entitled to be made pursuant to the first paragraph of this covenant, the Company may, in its sole discretion, classify, and may later reclassify from time to time, such Restricted Payment or any portion thereof into or among any of such applicable provisions.
Appears in 1 contract
Samples: Indenture (Far East Energy Corp)
Restricted Payments. (a) 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 's or any of its Restricted Subsidiaries’ ' or direct or indirect parent's Equity Interests (including, 42 44 without limitation, any payment in connection with any merger or consolidation involving the Company or any of its Restricted SubsidiariesCompany) 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 (A) dividends or distributions accrued or payable in Equity Interests (other than Disqualified InterestsStock) of the Company or (B) dividends or distributions payable to the Company or a Restricted any Subsidiary of the CompanyCompany that is a Guarantor);
; (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 the Company or other Affiliate or Subsidiary of the Company (other than any such Equity Interests owned by the Company or any Restricted Wholly Owned Subsidiary of the CompanyCompany that is a Guarantor);
; (iii) 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 to or pari passu (unless, in the case of pari passu Indebtedness only, such purchase, redemption, defeasance, acquisition, or retirement is made, or offered (if applicable), pro rata with the Notes or the Guarantees, if applicable) with the Notes or any Note Guarantee of the Guarantees, as applicable (and other than Indebtedness permitted under clause (vi) of Notes or the definition of “Permitted Debt”) Guarantees, as applicable), except (a) a payment of interest for any scheduled repayment or principal at Stated Maturity the final maturity thereof; or (b) the purchase, repurchase or other acquisition of any such Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case, due within one year of the date of such purchase, repurchase or other acquisition; or
(iv) make any Restricted Investment (all such payments and other actions set forth in clauses (i) through (iv) 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 Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 4.09(a)4.10 hereof; and
(Cc) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after August 27, 2012 the Issue Date (excluding including Restricted Payments permitted by clauses (i), (vi), (viii) and (provided that at the time of declaring such dividendix), such dividend was counted as a but excluding Restricted Payment) Payments permitted by clauses (ii), (iii), (iv), (v), (vi), (vii), (viii), (ix), (x), (xi), (xii), (xiii), (xiv) and (xvx) of Section 4.07(b)the next succeeding paragraph), is less than the sumsum of (i) $7,500,000, without duplication, of
plus (1ii) 50% of the Consolidated Net Income (adjusted to exclude any amounts that are otherwise included in this clause (c) to the extent there would be, and to avoid, any duplication in the crediting of any such amounts) of the Company for the period (taken as one accounting period) from April 2, 2012 the beginning of the first fiscal quarter commencing after the 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
plus (2iii) 100% of the aggregate net proceeds, including the fair market value of any property or Capital Interests, Net Proceeds received by the Company since August 27, 2012 as after the Issue Date from a contribution to its equity capital Capital Contribution or from the issue or sale of Equity Interests of the Company (other than Disqualified Interests) or from the issue or sale of Disqualified Interests or debt securities of the Company that have been converted into such Equity Interests (other than Equity Interests (or Disqualified Interests or convertible debt securities) sold to a Subsidiary of the Company), together with the aggregate cash and Cash Equivalents received by the Company or any of its Restricted Subsidiaries at the time of such conversion or exchange plus the amount by which Indebtedness of the Company and its Restricted Subsidiaries is reduced upon the conversion or exchange subsequent to August 27, 2012 of any Indebtedness or Disqualified Interests which are convertible into or exchangeable for Qualified Capital Interests of the Company or any of its Restricted Subsidiaries, plus
(3) 100% of the amount received, including the fair market value of any property received after August 27, 2012 by means of (A) the sale or other disposition (other than to the Company or a Restricted Subsidiary) of Restricted Investments made by the Company or its Restricted Subsidiaries and repurchases and redemptions of such Restricted Investments from the Company or its Restricted Subsidiaries and repayments of loans or advances which constitute Restricted Investments of the Company or its Restricted Subsidiaries or (B) the sale (other than to the Company or a Restricted Subsidiary) of the Capital Interests of an Unrestricted Subsidiary or a distribution from an Unrestricted Subsidiary (other than in each case to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment) or a dividend from an Unrestricted Subsidiary, plus
(4) in the case of the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary or the merger or consolidation of an Unrestricted Subsidiary into the Company or a Restricted Subsidiary or the transfer of assets of an Unrestricted Subsidiary to the Company or a Restricted Subsidiary, the fair market value of the Investment in such Unrestricted Subsidiary (other than an Unrestricted Subsidiary to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment), plus
(5) $141.0 million. The Board of Directors 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 in the Subsidiary so designated will be deemed to be Restricted Payments or Permitted Investments, in the Company’s discretion, at the time of such designation and will reduce the amount available for Restricted Payments or Permitted Investments, as applicable. 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 Payments or Permitted Investments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary.
(b) Section 4.07(a) shall not prohibit:
(i) the payment of any dividend or other distribution or redemption within 60 days after the date of declaration or call for redemption thereof, if at said date of declaration or call for redemption such payment would have complied with the provisions of this Indenture;
(ii) the making of any Restricted Payment in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Subsidiary of the Company) of, Equity Interests of the Company (other than any Disqualified Interests) or from a contribution of capital to the Company; 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 Section 4.07(a)(C)(2);
(iii) the defeasance, redemption, repurchase, replacement, extension, renewal, refinancing or retirement or other acquisition of subordinated Indebtedness or Disqualified Interests in exchange for or with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness;
(iv) the declaration, or payment of any dividend or other distribution 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 current or former officer, director, employee, consultant or agent of Company or any of its Restricted Subsidiaries (or Heirs or other permitted transferees thereof) upon death, disability, retirement, severance or termination of employment or service or in connection with a stock option plan or agreement, shareholders agreement, or similar agreement, plan or arrangement, including amendments thereto; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may not exceed: (A) $10.0 million in any calendar year, with unused amounts being available to be used in any later calendar year; provided that such amount in any calendar year may be increased in an amount not to exceed the net cash proceeds from the sale of Equity Interests (other than Disqualified Interests) of the Company to any officer, director, employee or agent of the Company or any Subsidiary of the Company that occurs after the date of this Indenture, to the extent such net cash proceeds have not otherwise been applied to make Restricted Payments pursuant to Section 4.07(a)(C)(2); plus (B) the cash proceeds of key man life insurance policies received by the Company and its Restricted Subsidiaries after the date of this Indenture that are used for the repurchase, redemption or other acquisition or retirement for value owned by the individual (or such individual’s estate) that is the subject of such insurance;
(vi) the repurchase of Equity Interests deemed to occur upon the exercise of options, warrants or other convertible securities to the extent such Equity Interests represent a portion of the exercise price of those options, warrants or other convertible securities and cash payments in lieu of the issuance of fractional shares in connection with the exercise of options, warrants, or other convertible securities;
(vii) the declaration and payment of regular quarterly dividends on the Company’s Equity Interests in accordance with past practice and not to exceed $0.05 per share;
(viii) additional Restricted Payments not to exceed $150.0 million after August 27, 2012;
(ix) the repurchase of the Company’s Equity Interests in an amount not to exceed $50.0 million after August 27, 2012;
(x) distributions or payments of Securitization Fees and purchases of Securitization Assets pursuant to a Securitization Repurchase Obligation in connection with a Qualified Securitization Financing;
(xi) any payments made in connection with the consummation of the transactions on substantially the terms described in the Offering Memorandum;
(xii) the payment of intercompany subordinated debt, the incurrence of which was permitted under Section 4.09(b)(vi);
(xiii) the purchase of fractional shares by the Company upon conversion of any securities of the Company into Capital Interests of the Company;
(xiv) the repurchase, redemption or other acquisition or retirement for value of subordinated Indebtedness or Disqualified Interests pursuant to the provisions similar to those described under Section 4.14 and Section 4.10; provided that all Notes tendered by Holders of the Notes in connection with the related Change of Control Offer or Asset Sale Offer, as applicable, have been repurchased, redeemed or acquired for value in full; and
(xv) payment of dividends on Disqualified Interests of the Company or a Restricted Subsidiary, the issuance of which is permitted by this Indenture.
(c) 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 Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall be determined by an officer of the Company. In the event that a Restricted Payment meets the criteria of more than one of the exceptions described in (i) through (xv) above or is entitled to be made pursuant to the first paragraph of this covenant, the Company may, in its sole discretion, classify, and may later reclassify from time to time, such Restricted Payment or any portion thereof into or among any of such applicable provisions.convertible
Appears in 1 contract
Restricted Payments. (a) The Company shall Amkor will not, and shall not nor will it permit any of its Restricted Subsidiaries to, directly or indirectly:
indirectly (iw) declare or pay any dividend or make any other payment or distribution on account of the CompanyAmkor’s or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company Amkor or any of its Restricted Subsidiaries) or to the direct or indirect holders of the CompanyAmkor’s or any of its Restricted Subsidiaries’ Equity Interests in their capacity as such (other than (A) dividends or distributions accrued or payable in Equity Interests (other than Disqualified InterestsStock) of the Company Amkor or (B) dividends or distributions to the Company Amkor or a Restricted Subsidiary of the CompanyAmkor);
, (iix) purchase, redeem redeem, or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the CompanyAmkor) any Equity Interests of the Company Amkor or any direct or indirect parent of the Company Amkor or any Restricted Subsidiary of Amkor (other than any such Equity Interests owned by the Company Amkor or any Restricted Subsidiary of the CompanyAmkor);
, (iiiy) make any payment on or with respect to, or purchase, redeem, defease defease, or otherwise acquire or retire for value any Indebtedness that is subordinated to the Notes or any Note Guarantee (other than Indebtedness permitted under clause (vi) of the definition of “Permitted Subordinated Debt”) , except (a) a payment of interest or principal at the Stated Maturity thereof, or (b) the purchase, repurchase or other acquisition of any such Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case, due within one year of the date of such purchase, repurchase or other acquisition; or
(ivz) make any Restricted Investment (all such payments and other actions set forth in clauses clause (iw) through clause (ivz) above preceding 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 Amkor 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 Fixed Charge Coverage Ratio test set forth in Section 4.09(a); and10.2.4;
(Ciii) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company Amkor and its Restricted Subsidiaries after August 27May 8, 2012 2003 (excluding Restricted Payments permitted by clauses (i) (provided that at the time of declaring such dividend, such dividend was counted as a Restricted Payment) clause (ii), clause (iii), clause (iv), (v), (vi), clause (vii), (viii), and clause (ix), (x), (xi), (xii), (xiii), (xiv) and (xv) of Section 4.07(b10.2.2(b)), is less than the sum, without duplication, of
of (1A) 5050.0% of the Consolidated Net Income of the Company Amkor for the period (taken as one accounting period) from the beginning of the Fiscal Quarter commencing on April 21, 2012 2003 to the end of the CompanyAmkor’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
plus (2B) 100% of the aggregate net proceeds, including the fair market value of any property or Capital Interests, cash proceeds received by the Company Amkor since August 27May 8, 2012 2003 as a contribution to its common equity capital or from the issue or sale of Equity Interests of the Company Amkor (other than Disqualified InterestsStock) or from the issue or sale of Disqualified Interests or debt securities of the Company that have been converted into such Equity Interests (other than Equity Interests (or Disqualified Interests Stock or convertible debt securities) sold to a Subsidiary of the CompanyAmkor), together plus (C) to the extent that any Restricted Investment that was made after May 8, 2003 is sold for cash or otherwise liquidated or repaid for cash, the lesser of (y) the cash return of capital with respect to such Restricted Investment (less the aggregate cash cost of disposition, if any) and Cash Equivalents received by (z) the Company or any of its Restricted Subsidiaries at the time initial amount of such conversion or exchange Restricted Investment, plus (D) the amount by which (1) Indebtedness (other than Disqualified Stock) of Amkor or any Restricted Subsidiary issued after May 8, 2003 is reduced on Amkor’s consolidated balance sheet (if prepared in accordance with GAAP as of the Company date of determination) and its (2) Disqualified Stock of Amkor issued after May 8, 2003 (held by any Person other than any Restricted Subsidiaries Subsidiary) is reduced upon (measured with reference to its redemption or repurchase price), in each case, as a result of the conversion or exchange subsequent to August 27, 2012 of any such Indebtedness or Disqualified Stock into Equity Interests which are convertible (other than Disqualified Stock) of Amkor, less, in each case, any cash distributed by Amkor upon such conversion or exchange, plus (E) to the extent that any Investment in any Unrestricted Subsidiary that was made after May 8, 2003 is sold for cash or otherwise liquidated, repaid for cash or such Unrestricted Subsidiary is converted into a Restricted Subsidiary, the lesser of (y) an amount equal to the sum of (1) the net reduction in Investments in Unrestricted Subsidiaries resulting from dividends, repayments of loans or exchangeable for Qualified Capital Interests advances, or other transfers of the Company assets, in each case to Amkor or any of its Restricted Subsidiary from Unrestricted Subsidiaries, plus
and (32) 100% of the amount received, including the fair market value of any property received after August 27, 2012 by means of (A) the sale or other disposition (other than to the Company or a Restricted Subsidiary) of Restricted Investments made by the Company or its Restricted Subsidiaries and repurchases and redemptions of such Restricted Investments from the Company or its Restricted Subsidiaries and repayments of loans or advances which constitute Restricted Investments of the Company or its Restricted Subsidiaries or (B) the sale (other than to the Company or a Restricted Subsidiary) of the Capital Interests of an Unrestricted Subsidiary or a distribution from an Unrestricted Subsidiary (other than in each case to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment) or a dividend from an Unrestricted Subsidiary, plus
(4) in the case of the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary or the merger or consolidation of an Unrestricted Subsidiary into the Company or a Restricted Subsidiary or the transfer of net assets of an Unrestricted Subsidiary to at the Company or time such Unrestricted Subsidiary is designated a Restricted Subsidiary, Subsidiary and (z) the fair market value remaining amount of the Investment in such Unrestricted Subsidiary (other than an Unrestricted Subsidiary to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment), pluswhich has not been repaid or converted into cash or assets; and
(5iv) Availability is not less than $141.0 million. The Board of Directors 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 in the Subsidiary so designated will be deemed to be Restricted Payments or Permitted Investments, in the Company’s discretion, at the time of such designation and will reduce the amount available for Restricted Payments or Permitted Investments, as applicable. 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 Payments or Permitted Investments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary40,000,000.
(b) Section 4.07(a10.2.2(a) shall preceding will not prohibit:
prohibit (i) the payment of any dividend or other distribution or redemption within 60 days after the date of declaration or call for redemption thereof, if at said the date of declaration no Default or call for redemption Event of Default has occurred and is continuing or would be caused thereby and such payment would have complied with the provisions of this Indenture;
Agreement, (ii) the making of any payment on or with respect to, or in connection with, the redemption, repurchase, retirement, defeasance, or other acquisition of, any Indebtedness of Amkor or any Restricted Payment Subsidiary that is subordinated to the Obligations or of any Equity Interests of Amkor or any Restricted Subsidiary in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Subsidiary of the CompanyAmkor) of, Equity Interests of the Company (other than Disqualified Stock) of Amkor or any Disqualified Interests) or from a contribution subordinated Indebtedness of capital to the CompanyAmkor; provided that the amount of any such net cash proceeds that are utilized for any such redemption, repurchase, retirement, defeasance defeasance, or other acquisition shall be excluded from Section 4.07(a)(C)(2);
clause (a)(iii)(B) preceding, (iii) the making of any payment on or with respect to, or in connection with, the defeasance, redemption, repurchase, replacement, extension, renewal, refinancing or retirement or other acquisition of Indebtedness of Amkor or any Restricted Subsidiary that is subordinated Indebtedness or Disqualified Interests in exchange for or to the Obligations with the net cash proceeds from an the incurrence of Permitted Refinancing Indebtedness;
, (iv) the declaration, or payment of any dividend or other distribution by a Restricted Subsidiary of the Company Amkor to the holders of its common Equity Interests capital stock on a pro rata basis;
, (v) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the repurchase, redemption redemption, or other acquisition or retirement for value of any Equity Interests of the Company Amkor or any Restricted Subsidiary of the Company Amkor held by any current or former officer, director, employee, consultant or agent employee of Company Amkor or any of its Restricted Subsidiaries (Subsidiary pursuant to any employee equity subscription agreement, stock ownership plan, or Heirs or other permitted transferees thereof) upon death, disability, retirement, severance or termination of employment or service or in connection with a stock option plan or agreement, shareholders agreement, or similar agreement, plan or arrangement, including amendments theretoagreement in effect from time to time; provided that the aggregate price paid for all such repurchased, redeemed, acquired acquired, or retired Equity Interests may shall not exceed: exceed $2,000,000 in any twelve-month period and $10,000,000 in the aggregate since May 8, 2003, (vi) the making of any payment on or with respect to, or repurchase, redemption, defeasance, or other acquisition or retirement for value of the Convertible Subordinated Notes in connection with (A) $10.0 million so long as no Event of Default has occurred and is continuing or would be caused thereby, an optional redemption of any Convertible Subordinated Notes on or after the dates such notes become redeemable or (B) the honoring by Amkor of any conversion request into Equity Interests (other than Disqualified Stock) by a holder of any Convertible Subordinated Notes or any future convertible notes of Amkor (including the payment by Amkor of any cash in any calendar yearlieu of fractional shares) in accordance with their terms, with unused amounts being available to be used in any later calendar year; provided (vii) that such amount in any calendar year may be increased in an amount not to exceed portion of Investments the net cash proceeds from the sale payment for which consists exclusively of Equity Interests (other than Disqualified InterestsStock) of the Company to any officerAmkor, director(viii) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, employee or agent of the Company or any Subsidiary of the Company that occurs after the date of this Indenture, to the extent such net cash proceeds have not otherwise been applied to make other Restricted Payments pursuant in an aggregate amount not to Section 4.07(a)(C)(2); plus exceed $75,000,000 during the period beginning May 8, 2003 and continuing through and including the Termination Date, (B) the cash proceeds of key man life insurance policies received by the Company and its Restricted Subsidiaries after the date of this Indenture that are used for the repurchase, redemption or other acquisition or retirement for value owned by the individual (or such individual’s estate) that is the subject of such insurance;
(viix) the repurchase of Equity Interests of Amkor that may be deemed to occur upon the exercise of options, warrants or other convertible securities to the extent stock options if such Equity Interests represent a portion of the exercise price thereof, and (x) any payments to one or more shareholders of those options, warrants or other convertible securities and cash payments in lieu of the issuance of fractional shares Amkor in connection with settling shareholder obligations for income taxes in respect of tax periods ending prior to the exercise of options, warrants, or other convertible securities;
(vii) the declaration and payment of regular quarterly dividends on the Company’s Equity Interests in accordance with past practice and not to exceed $0.05 per share;
(viii) additional Restricted Payments not to exceed $150.0 million after August 27, 2012;
(ix) the repurchase of the Company’s Equity Interests in an amount not to exceed $50.0 million after August 27, 2012;
(x) distributions or payments of Securitization Fees and purchases of Securitization Assets pursuant to a Securitization Repurchase Obligation in connection with a Qualified Securitization Financing;
(xi) any payments made in connection with the consummation of the transactions on substantially the terms described in the Offering Memorandum;
(xii) the payment of intercompany subordinated debt, the incurrence of which was permitted under Section 4.09(b)(vi);
(xiii) the purchase of fractional shares by the Company upon conversion of any securities of the Company into Capital Interests of the Company;
(xiv) the repurchase, redemption or other acquisition or retirement for value of subordinated Indebtedness or Disqualified Interests pursuant Amkor from “S” corporation status to the provisions similar to those described under Section 4.14 and Section 4.10; provided that all Notes tendered by Holders of the Notes in connection with the related Change of Control Offer or Asset Sale Offer, as applicable, have been repurchased, redeemed or acquired for value in full; and
(xv) payment of dividends on Disqualified Interests of the Company or a Restricted Subsidiary, the issuance of which is permitted by this Indenture“C” corporation status.
(c) 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 Amkor 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 covenant with a fair market value in excess of $1,000,000 but less than $5,000,000 shall be evidenced by an Officers’ Certificate which shall be delivered to the Agent. The fair market value of any assets or securities that are required to be valued by this covenant with a fair market value in excess of $5,000,000 shall be determined by an officer Amkor’s board of the Company. In the event that a Restricted Payment meets the criteria of more than one of the exceptions described in (i) through (xv) above or is entitled to directors whose resolution with respect thereto shall be made pursuant delivered to the first paragraph Agent. Not later than the date of this covenantmaking any Restricted Payment, Amkor shall deliver to the Company may, in its sole discretion, classify, and may later reclassify from time to time, Agent an Officers’ Certificate stating that such Restricted Payment is permitted and setting forth the basis upon which the calculations required by this Section 10.2.2 were computed, together with a copy of any fairness opinion or any portion thereof into or among any of such applicable provisionsappraisal required by this Agreement.
Appears in 1 contract
Restricted Payments. (a) The Company No Borrower shall, or shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly:
, (ia) declare or pay any dividend (other than dividends payable solely in capital stock of such Person) 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 shares of any class of capital stock of such Person or any warrants, options or rights to purchase any such capital stock, whether now or hereafter outstanding, or make any other payment distribution in respect thereof, either directly or distribution on account indirectly, whether in cash or property or in obligations of the Company’s such Person or any of its Restricted Subsidiaries’ Equity Interests ; or (b) make any optional or mandatory payment of principal of or interest on, or any optional or mandatory prepayment of principal of or interest on, or redemption (including, without limitation, by making payments to a sinking or analogous fund) or repurchase of, in each case any payment in connection with Indebtedness subordinated to the Obligations; provided, that, notwithstanding the foregoing:
(i) any merger Borrower and any Subsidiary of any Borrower may make payments or consolidation involving the Company prepayments on account of Indebtedness owing to such 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 (A) dividends or distributions accrued or payable in Equity Interests (other than Disqualified Interests) of the Company or (B) dividends or distributions to the Company or a Restricted Subsidiary of the Company)Borrower;
(ii) purchaseany Subsidiary of any Borrower may declare and pay dividends to such Borrower or any other Borrower; and
(iii) MTLM may declare and pay dividends or redeem, redeem repurchase or otherwise acquire or retire for value any of its capital stock so long as, (including, without limitation, in connection with any merger or consolidation involving the CompanyA) any Equity Interests of the Company or any direct or indirect parent of the Company (other than any such Equity Interests owned by the Company or any Restricted Subsidiary of the Company);
(iii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness that is subordinated to the Notes or any Note Guarantee (other than Indebtedness permitted under clause (vi) of the definition of “Permitted Debt”) except (a) a payment of interest or principal at Stated Maturity or (b) the purchase, repurchase or other acquisition of any such Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case, due within one year of the date of such purchase, repurchase or other acquisition; or
(iv) make any Restricted Investment (all such payments and other actions set forth in clauses (i) through (iv) above being collectively referred to as “Restricted Payments”), unless, at the time of before and after giving effect to all payments in connection therewith, the Borrowers shall have Excess Availability in excess of $30,000,000 and shall be in compliance with the financial covenants contained in Sections 8.1 and 8.2 hereof, as demonstrated by a certificate of the chief executive officer, chief financial officer or treasurer of MTLM delivered to the Agent and the Lenders prior to such Restricted Payment:
payment; (AB) 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 result from such Restricted Payment payments; 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 Fixed Charge Coverage Ratio test set forth in Section 4.09(a); and
(C) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after August 27, 2012 (excluding Restricted Payments permitted by clauses (i) (provided that at the time of declaring such dividend, such dividend was counted as a Restricted Payment) (ii), (iii), (iv), (v), (vi), (vii), (viii), (ix), (x), (xi), (xii), (xiii), (xiv) and (xv) of Section 4.07(b)), is less than the sum, without duplication, of
(1) 50% of the Consolidated Net Income of the Company for the period (taken as one accounting period) from April 2, 2012 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
(2) 100% of the aggregate net proceeds, including the fair market value of any property or Capital Interests, received by the Company since August 27, 2012 as a contribution to its equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified Interests) or from the issue or sale of Disqualified Interests or debt securities of the Company that have been converted into such Equity Interests (other than Equity Interests (or Disqualified Interests or convertible debt securities) sold to a Subsidiary of the Company), together with the aggregate cash and Cash Equivalents received by the Company or any of its Restricted Subsidiaries at the time of such conversion or exchange plus the amount by which Indebtedness of the Company and its Restricted Subsidiaries is reduced upon the conversion or exchange subsequent to August 27, 2012 of any Indebtedness or Disqualified Interests which are convertible into or exchangeable for Qualified Capital Interests of the Company or any of its Restricted Subsidiaries, plus
(3) 100% of the amount received, including the fair market value of any property received after August 27, 2012 by means of (A) the sale or other disposition (other than to the Company or a Restricted Subsidiary) of Restricted Investments made by the Company or its Restricted Subsidiaries and repurchases and redemptions of such Restricted Investments from the Company or its Restricted Subsidiaries and repayments of loans or advances which constitute Restricted Investments of the Company or its Restricted Subsidiaries or (B) the sale (other than to the Company or a Restricted Subsidiary) of the Capital Interests of an Unrestricted Subsidiary or a distribution from an Unrestricted Subsidiary (other than in each case to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment) or a dividend from an Unrestricted Subsidiary, plus
(4) in the case of the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary or the merger or consolidation of an Unrestricted Subsidiary into the Company or a Restricted Subsidiary or the transfer of assets of an Unrestricted Subsidiary to the Company or a Restricted Subsidiary, the fair market value of the Investment in such Unrestricted Subsidiary (other than an Unrestricted Subsidiary to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment), plus
(5) $141.0 million. The Board of Directors 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 in the Subsidiary so designated will be deemed to be Restricted Payments or Permitted Investments, in the Company’s discretion, at the time of such designation and will reduce the amount available for Restricted Payments or Permitted Investments, as applicable. 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 Payments or Permitted Investments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary.
(b) Section 4.07(a) shall not prohibit:
(i) the payment of any dividend or other distribution or redemption within 60 days after the date of declaration or call for redemption thereof, if at said date of declaration or call for redemption such payment would have complied with the provisions of this Indenture;
(ii) the making of any Restricted Payment in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Subsidiary of the Company) of, Equity Interests of the Company (other than any Disqualified Interests) or from a contribution of capital to the Company; 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 Section 4.07(a)(C)(2);
(iii) the defeasance, redemption, repurchase, replacement, extension, renewal, refinancing or retirement or other acquisition of subordinated Indebtedness or Disqualified Interests in exchange for or with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness;
(iv) the declaration, or payment of any dividend or other distribution 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 current or former officer, director, employee, consultant or agent of Company or any of its Restricted Subsidiaries (or Heirs or other permitted transferees thereof) upon death, disability, retirement, severance or termination of employment or service or in connection with a stock option plan or agreement, shareholders agreement, or similar agreement, plan or arrangement, including amendments thereto; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may not exceed: (A) $10.0 million payments in any calendar year, with unused amounts being available to be used in any later calendar year; provided that such amount in any calendar year may be increased in an amount consecutive twelve (12) month period does not to exceed the net cash proceeds from the sale of Equity Interests (other than Disqualified Interests) of the Company to any officer, director, employee or agent of the Company or any Subsidiary of the Company that occurs after the date of this Indenture, to the extent such net cash proceeds have not otherwise been applied to make Restricted Payments pursuant to Section 4.07(a)(C)(2); plus (B) the cash proceeds of key man life insurance policies received by the Company and its Restricted Subsidiaries after the date of this Indenture that are used for the repurchase, redemption or other acquisition or retirement for value owned by the individual (or such individual’s estate) that is the subject of such insurance;
(vi) the repurchase of Equity Interests deemed to occur upon the exercise of options, warrants or other convertible securities to the extent such Equity Interests represent a portion of the exercise price of those options, warrants or other convertible securities and cash payments in lieu of the issuance of fractional shares in connection with the exercise of options, warrants, or other convertible securities;
(vii) the declaration and payment of regular quarterly dividends on the Company’s Equity Interests in accordance with past practice and not to exceed $0.05 per share;
(viii) additional Restricted Payments not to exceed $150.0 million after August 27, 2012;
(ix) the repurchase of the Company’s Equity Interests in an amount not to exceed $50.0 million after August 27, 2012;
(x) distributions or payments of Securitization Fees and purchases of Securitization Assets pursuant to a Securitization Repurchase Obligation in connection with a Qualified Securitization Financing;
(xi) any payments made in connection with the consummation of the transactions on substantially the terms described in the Offering Memorandum;
(xii) the payment of intercompany subordinated debt, the incurrence of which was permitted under Section 4.09(b)(vi);
(xiii) the purchase of fractional shares by the Company upon conversion of any securities of the Company into Capital Interests of the Company;
(xiv) the repurchase, redemption or other acquisition or retirement for value of subordinated Indebtedness or Disqualified Interests pursuant to the provisions similar to those described under Section 4.14 and Section 4.10; provided that all Notes tendered by Holders of the Notes in connection with the related Change of Control Offer or Asset Sale Offer, as applicable, have been repurchased, redeemed or acquired for value in full; and
(xv) payment of dividends on Disqualified Interests of the Company or a Restricted Subsidiary, the issuance of which is permitted by this Indenture10,000,000.
(c) 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 Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall be determined by an officer of the Company. In the event that a Restricted Payment meets the criteria of more than one of the exceptions described in (i) through (xv) above or is entitled to be made pursuant to the first paragraph of this covenant, the Company may, in its sole discretion, classify, and may later reclassify from time to time, such Restricted Payment or any portion thereof into or among any of such applicable provisions.
Appears in 1 contract
Restricted Payments. (a) 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 '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 's or any of its Restricted Subsidiaries’ ' Equity Interests in their capacity as such (other than (A) dividends or distributions accrued or payable in Equity Interests (other than Disqualified InterestsStock) of the Company or (B) dividends or distributions payable to the Company or a Restricted Subsidiary of the Company);
; or (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 Company. In addition, the Company shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, (other than any such Equity Interests owned by the Company or any Restricted Subsidiary of the Company);
(iiii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness that is subordinated to the Notes or any Note Guarantee (other than Indebtedness permitted under clause (vi) of the definition of “Permitted Debt”) Notes, except (a) a scheduled payment of interest or principal at Stated Maturity Maturity; or (b) the purchase, repurchase or other acquisition of any such Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case, due within one year of the date of such purchase, repurchase or other acquisition; or
(ivii) make any Restricted Investment (all such payments and other actions set forth in clauses (i) through and (ivii) 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 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 Fixed Charge Coverage Ratio test set forth in Section 4.09(a); and
(Cb) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after August 27, 2012 (excluding Restricted Payments permitted by clauses (i) (provided that at the time date of declaring such dividend, such dividend was counted as a Restricted Payment) (ii), (iii), (iv), (v), (vi), (vii), (viii), (ix), (x), (xi), (xii), (xiii), (xiv) and (xv) of Section 4.07(b)), this Indenture is less than the sum, without duplication, of
of (1i) 50% of the Consolidated Net Income of the Company for the period (taken as one accounting period) from April 2, 2012 the beginning of the first fiscal quarter commencing after the 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 (2ii) 100% of the aggregate net proceeds, including the fair market value of any property or Capital Interests, cash proceeds received by the Company since August 27, 2012 the 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 InterestsStock) or from the issue or sale of Disqualified Interests Stock or debt securities of the Company that have been converted into such Equity Interests (other than Equity Interests (or Disqualified Interests Stock or convertible debt securities) sold to a Subsidiary of the Company), together with plus (iii) to the aggregate extent that any Restricted Investment that was made after the date of this Indenture is sold for cash and Cash Equivalents received by or otherwise liquidated or repaid for cash, the Company or any of its Restricted Subsidiaries at the time of such conversion or exchange plus the amount by which Indebtedness of the Company and its Restricted Subsidiaries is reduced upon the conversion or exchange subsequent to August 27, 2012 of any Indebtedness or Disqualified Interests which are convertible into or exchangeable for Qualified Capital Interests of the Company or any of its Restricted Subsidiaries, plus
(3) 100% of the amount received, including the fair market value of any property received after August 27, 2012 by means lesser of (A) the sale or other disposition (other than cash return of capital with respect to the Company or a Restricted Subsidiary) of Restricted Investments made by the Company or its Restricted Subsidiaries and repurchases and redemptions of such Restricted Investments from Investment (less the Company or its Restricted Subsidiaries cost of disposition, if any) and repayments of loans or advances which constitute Restricted Investments of the Company or its Restricted Subsidiaries or (B) the sale (other than to the Company or a initial amount of such Restricted Subsidiary) of the Capital Interests of an Unrestricted Subsidiary or a distribution from an Unrestricted Subsidiary (other than in each case to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment) or a dividend from an Unrestricted Subsidiary, plus
(4) in the case of the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary or the merger or consolidation of an Unrestricted Subsidiary into the Company or a Restricted Subsidiary or the transfer of assets of an Unrestricted Subsidiary to the Company or a Restricted Subsidiary, the fair market value of the Investment in such Unrestricted Subsidiary (other than an Unrestricted Subsidiary to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment), plus
(5) $141.0 million. The Board of Directors 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 in the Subsidiary so designated will be deemed to be Restricted Payments or Permitted Investments, in the Company’s discretion, at the time of such designation and will reduce the amount available for Restricted Payments or Permitted Investments, as applicable. 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 Payments or Permitted Investments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary.
(b) Section 4.07(a) foregoing provisions shall not prohibit:
prohibit (i) the payment redemption, repurchase, retirement, defeasance or other acquisition of any dividend or other distribution or redemption within 60 days after subordinated Indebtedness of the date of declaration or call for redemption thereof, if at said date of declaration or call for redemption such payment would have complied with the provisions of this Indenture;
(ii) the making of any Restricted Payment Company in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Subsidiary of the Company) of, Equity Interests of the Company (other than any Disqualified Interests) or from a contribution of capital to the CompanyStock); 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 Section 4.07(a)(C)(2);
clause (iiic)(ii) of the preceding paragraph; (ii) the defeasance, redemption, repurchase, replacement, extension, renewal, refinancing or retirement repurchase or other acquisition of subordinated Indebtedness or Disqualified Interests in exchange for or with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness;
; (iviii) the declaration, or payment of any dividend or other distribution by a Subsidiary of the Company to the holders of its common Equity Interests on a pro rata basis;
; (iv) Investments in securities not constituting cash or Cash Equivalents and received in connection with an Asset Sale made pursuant to the provisions of Section 4.10 hereof or any other disposition of assets not constituting an Asset Sale by reason of the threshold contained in the definition thereof[; and (v) such payments as are required to be made by 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 current or former officer, director, employee, consultant or agent of Company or any of its Restricted Subsidiaries (or Heirs or other permitted transferees thereof) upon death, disability, retirement, severance or termination of employment or service or in connection with a stock option plan or agreement, shareholders agreement, or similar agreement, plan or arrangement, including amendments thereto; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may not exceed: (A) $10.0 million in any calendar year, with unused amounts being available to be used in any later calendar year; provided that such amount in any calendar year may be increased in an amount not to exceed the net cash proceeds from the sale of Equity Interests (other than Disqualified Interests) of the Company to any officer, director, employee or agent of the Company or any Subsidiary of the Company that occurs after the date of this Indenture, to the extent such net cash proceeds have not otherwise been applied to make Restricted Payments pursuant to Section 4.07(a)(C)(2); plus (B) the cash proceeds that certain Tax Sharing Agreement dated as of key man life insurance policies received by January 31, 2003 among EXX, Inc. the Company and its Restricted the Subsidiaries after named therein, as in effect on the date of this Indenture that are used for the repurchase, redemption or other acquisition or retirement for value owned by the individual (or such individual’s estate) that is the subject of such insurance;
(vi) the repurchase of Equity Interests deemed to occur upon the exercise of options, warrants or other convertible securities to the extent such Equity Interests represent a portion of the exercise price of those options, warrants or other convertible securities and cash payments in lieu of the issuance of fractional shares in connection with the exercise of options, warrants, or other convertible securities;
(vii) the declaration and payment of regular quarterly dividends on the Company’s Equity Interests in accordance with past practice and not to exceed $0.05 per share;
(viii) additional Restricted Payments not to exceed $150.0 million after August 27, 2012;
(ix) the repurchase of the Company’s Equity Interests in an amount not to exceed $50.0 million after August 27, 2012;
(x) distributions or payments of Securitization Fees and purchases of Securitization Assets pursuant to a Securitization Repurchase Obligation in connection with a Qualified Securitization Financing;
(xi) any payments made in connection with the consummation of the transactions on substantially the terms described in the Offering Memorandum;
(xii) the payment of intercompany subordinated debt, the incurrence of which was permitted under Section 4.09(b)(vi);
(xiii) the purchase of fractional shares by the Company upon conversion of any securities of the Company into Capital Interests of the Company;
(xiv) the repurchase, redemption or other acquisition or retirement for value of subordinated Indebtedness or Disqualified Interests pursuant to the provisions similar to those described under Section 4.14 and Section 4.10; provided that all Notes tendered by Holders of the Notes in connection with the related Change of Control Offer or Asset Sale Offer, as applicable, have been repurchased, redeemed or acquired for value in full; and
(xv) payment of dividends on Disqualified Interests of the Company or a Restricted Subsidiary, the issuance of which is permitted by this Indenture.
(c) 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 Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall be determined by an officer the Board of Directors whose resolution with respect thereto shall be delivered to the Company. In the event that a Restricted Payment meets the criteria of more than one of the exceptions described in (i) through (xv) above or is entitled Trustee, such determination to be made pursuant to the first paragraph based upon an opinion or appraisal issued by an accounting, appraisal or investment banking firm of this covenantnational standing if such fair market value exceeds $250,000. Not later than five Business Days after making any Restricted Payment, the Company may, in its sole discretion, classify, and may later reclassify from time shall deliver to time, 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 any portion thereof into or among any of such applicable provisionsappraisal required by this Indenture.
Appears in 1 contract
Samples: Indenture (Exx Inc/Nv/)
Restricted Payments. (a) 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 its 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 (A) dividends or distributions accrued or payable (x) solely in Equity Interests (other than Disqualified InterestsStock) of the Company or (By) dividends or distributions in the case of the Company and its Restricted Subsidiaries, to the Company or a Restricted Subsidiary of the Companythereof);
(iib) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the CompanyCompany or any of its Restricted Subsidiaries) any Equity Interests of the Company or any direct or indirect parent Parent of the Company or any Restricted Subsidiary of the Company (other than than, in the case of the Company and its Restricted Subsidiaries, any such Equity Interests owned by the Company or any of its Restricted Subsidiary of the CompanySubsidiaries);; or
(iiic) 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 (other than intercompany Indebtedness among the Company and its Restricted Subsidiaries that is permitted to be incurred under this Supplemental Indenture) that is subordinated to the Notes or any Note Guarantee (other than Indebtedness permitted under clause (vi) of the definition of “Permitted Debt”) Notes, except (a) a payment of interest or principal at the Stated Maturity or (b) the purchase, repurchase or other acquisition of any such Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case, due within one year of the date of such purchase, repurchase or other acquisition; or
(iv) make any Restricted Investment thereof (all such payments and other actions set forth in clauses (ia) through (ivc) 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 under this Indenture shall have occurred and be continuing or would occur as a consequence thereof;
(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 Fixed Charge Coverage Leverage Ratio test set forth in the first paragraph of Section 4.09(a)4.10; and
(C3) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries from and after August 27April 1, 2012 2010 (excluding Restricted Payments permitted by clauses (i2) through (provided that 17) of the next succeeding paragraph and made on or after April 1, 2010), shall not exceed, at the time date of declaring such dividenddetermination, such dividend was counted as a Restricted Payment) (ii), (iii), (iv), (v), (vi), (vii), (viii), (ix), (x), (xi), (xii), (xiii), (xiv) and (xv) of Section 4.07(b)), is less than the sum, without duplication, sum of:
(1a) 50an amount equal to 100% of the Consolidated Net Income EBITDA of the Company for the period (taken as one accounting period) from beginning on the first day of the fiscal quarter commencing April 21, 2012 2010 to the end of the Company’s most recently ended full fiscal quarter for which internal financial statements are available at available, taken as a single accounting period, less the time product of such Restricted Payment (or, if such 1.3 times the Consolidated Net Income Interest Expense of the Company for such period is a deficitperiod, less plus
(b) an amount equal to 100% of Capital Stock Sale Proceeds (reduced for purpose of this clause (b) by (A) any amount of such deficitCapital Stock Sale Proceeds (i) used in connection with an Investment made on or after the Issue Date pursuant to clause (5) of the definition of “Permitted Investments,” (ii) applied to make a Restricted Payment pursuant to clause (2) or sub-clause (y)(2) of clause (9) or clause (14) below, or (iii) relied upon for purposes of incurring Contribution Indebtedness and (B) the amount of Restricted Payments made pursuant to sub-clause (A)(i), (B) or (C) of clause (8) and sub-clause (y)(1) of clause (9) below, in each case, by an amount not to exceed the amount of Capital Stock Sale Proceeds from any Charter Subsidiary Refinancing Indebtedness or Charter Parent Refinancing Indebtedness), plus
(2) 100% of the aggregate net proceeds, including the fair market value of any property or Capital Interests, received by the Company since August 27, 2012 as a contribution to its equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified Interests) or from the issue or sale of Disqualified Interests or debt securities of the Company that have been converted into such Equity Interests (other than Equity Interests (or Disqualified Interests or convertible debt securities) sold to a Subsidiary of the Company), together with the aggregate cash and Cash Equivalents received by the Company or any of its Restricted Subsidiaries at the time of such conversion or exchange plus the amount by which Indebtedness of the Company and its Restricted Subsidiaries is reduced upon the conversion or exchange subsequent to August 27, 2012 of any Indebtedness or Disqualified Interests which are convertible into or exchangeable for Qualified Capital Interests of the Company or any of its Restricted Subsidiaries, plus
(3) 100% of the amount received, including the fair market value of any property received after August 27, 2012 by means of (A) the sale or other disposition (other than to the Company or a Restricted Subsidiary) of Restricted Investments made by the Company or its Restricted Subsidiaries and repurchases and redemptions of such Restricted Investments from the Company or its Restricted Subsidiaries and repayments of loans or advances which constitute Restricted Investments of the Company or its Restricted Subsidiaries or (B) the sale (other than to the Company or a Restricted Subsidiary) of the Capital Interests of an Unrestricted Subsidiary or a distribution from an Unrestricted Subsidiary (other than in each case to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment) or a dividend from an Unrestricted Subsidiary, plus
(4) in the case of the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary or the merger or consolidation of an Unrestricted Subsidiary into the Company or a Restricted Subsidiary or the transfer of assets of an Unrestricted Subsidiary to the Company or a Restricted Subsidiary, the fair market value of the Investment in such Unrestricted Subsidiary (other than an Unrestricted Subsidiary to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment), plus
(5c) $141.0 million2.0 billion. The Board of Directors 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 in the Subsidiary so designated will be deemed to be Restricted Payments or Permitted Investments, in the Company’s discretion, at the time of such designation and will reduce the amount available for Restricted Payments or Permitted Investments, as applicable. 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 Payments or Permitted Investments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary.
(b) Section 4.07(a) preceding provisions shall not prohibit:
(i1) the payment of any dividend or other distribution or redemption within 60 days after the date of declaration or call for redemption thereof, if at said the date of declaration or call for redemption such payment would have complied with the provisions of this Supplemental Indenture;
(ii2) the making redemption, repurchase, retirement, defeasance or other acquisition of any Restricted Payment subordinated Indebtedness of the Company in exchange for, or out of the net cash proceeds of of, the substantially concurrent sale (other than to a Subsidiary of the Company) of, Equity Interests of the Company (other than any Disqualified Interests) or from a contribution of capital to the Company; 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 Section 4.07(a)(C)(2Stock);
(iii3) the defeasance, redemption, repurchase, replacement, extension, renewal, refinancing or retirement repurchase or other acquisition of subordinated Indebtedness of the Company or Disqualified Interests in exchange for or any of its Restricted Subsidiaries with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness;
(iv4) the declaration, or payment of any dividend or other distribution distribution, which need not be pro rata, to the extent necessary to permit direct or indirect beneficial owners of shares of Capital Stock of the Company to pay federal, state or local income tax liabilities that would arise solely from income of the Company or any of its Restricted Subsidiaries, as the case may be, for the relevant taxable period being attributable to them;
(5) the payment of any dividend by a Restricted Subsidiary of the Company to the holders of its common Equity Interests on a pro rata basis;
(v6) the repurchase, redemption or other acquisition or retirement for value value, or the payment of any dividend or distribution to the extent necessary to permit the repurchase, redemption or other acquisition or retirement for value, of any Equity Interests of the Company or any Subsidiary a Parent of the Company held by any current member of the Company’s or former officer, director, employee, consultant such Parent’s management pursuant to any management equity subscription agreement or agent stock option agreement entered into in accordance with the policies of the Company or any of its Restricted Subsidiaries (or Heirs or other permitted transferees thereof) upon death, disability, retirement, severance or termination of employment or service or in connection with a stock option plan or agreement, shareholders agreement, or similar agreement, plan or arrangement, including amendments theretoParent; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may shall not exceed: exceed $50.0 million in any fiscal year of the Issuers;
(7) payment of fees in connection with any acquisition, merger or similar transaction in an amount that does not exceed an amount equal to 1.25% of the transaction value of such acquisition, merger or similar transaction;
(8) (A) $10.0 million in additional Restricted Payments directly or indirectly to any calendar yearParent (i) for the purpose of enabling any Parent to pay interest when due on Indebtedness under any Charter Parent Refinancing Indebtedness or (ii) so long as no Default has occurred and is continuing and the Company would have been permitted, with unused amounts being available to be used in any later calendar year; provided that at the time of such amount in any calendar year may be increased in an amount not to exceed Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the net cash proceeds from the sale of Equity Interests (other than Disqualified Interests) beginning of the Company applicable quarter period, to incur at least $1.00 of additional Indebtedness pursuant to the Leverage Ratio test set forth in the first paragraph of Section 4.10, consisting of dividends or distributions to the extent required to enable any officerParent to defease, directorredeem, employee repurchase, prepay, repay, discharge or agent otherwise acquire or retire for value Indebtedness under any Charter Parent Refinancing Indebtedness (including any expenses and fees incurred by any Parent in connection therewith); (B) so long as no Default has occurred and is continuing, Restricted Payments used to defease, redeem, repurchase, prepay, repay, discharge or otherwise acquire or retire for value Indebtedness under any Charter Parent Refinancing Indebtedness or consisting of purchases, redemptions or other acquisitions by the Company or its Restricted Subsidiaries of Indebtedness under any Subsidiary of the Company that occurs after the date of this Indenture, to the extent such net cash proceeds have not otherwise been applied to make Restricted Payments pursuant to Section 4.07(a)(C)(2); plus Charter Parent Refinancing Indebtedness (B) the cash proceeds of key man life insurance policies received including any expenses and fees incurred by the Company and its Restricted Subsidiaries in connection therewith) and the distribution, loan or investment to any Parent of Indebtedness so purchased, redeemed or acquired, or (C) Restricted Payments for the purpose of enabling any Parent to (i) pay interest when due on Indebtedness under any Charter Subsidiary Refinancing Indebtedness or (ii) to defease, redeem, repurchase, prepay, repay, discharge or otherwise acquire or retire for value Indebtedness under any Charter Subsidiary Refinancing Indebtedness (including any expenses and fees incurred by the Company and its Restricted Subsidiaries in connection therewith);
(9) Restricted Payments directly or indirectly to any Parent regardless of whether a Default exists (other than an Event of Default under paragraph (1), (2), (7) or (8) of Section 6.01), for the purpose of enabling such Person (A) to pay interest on and (B) so long as 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 date beginning of this Indenture the applicable quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Leverage Ratio test set forth in the first paragraph of Section 4.10 to defease, redeem, repurchase, prepay, repay, discharge or otherwise acquire or retire, in each case, Indebtedness of such Parent (x) which is not held by another Parent and (y) to the extent that the net cash proceeds of such Indebtedness are or were used for the repurchase(1) payment of interest or principal (or premium) on any Indebtedness of a Parent (including (A) by way of a tender, redemption or other acquisition or retirement for value owned by the individual (or such individual’s estate) that is the subject prepayment of such insuranceIndebtedness and (B) amounts set aside to prefund any such payment), (2) direct or indirect (including by way of a contribution of property and/or assets purchased with such net cash proceeds) Investment in the Company or any of its Restricted Subsidiaries or (3) payment of amounts that would be permitted to be paid by way of a Restricted Payment under clause (10) immediately below (including the expenses of any exchange transaction);
(vi10) the repurchase Restricted Payments directly or indirectly to any Parent of (A) attorneys’ fees, investment banking fees, accountants’ fees, underwriting discounts and commissions and other customary fees and expenses (including any commitment and other fees payable in connection with Credit Facilities) actually incurred in connection with any issuance, sale or incurrence by such Parent of Equity Interests deemed or Indebtedness, or any exchange of securities or tender for outstanding debt securities, or (B) the costs and expenses of any offer to occur upon the exercise of options, warrants or other convertible exchange privately placed securities to the extent such Equity Interests represent a portion in respect of the exercise price of those options, warrants foregoing for publicly registered securities or other convertible securities and cash payments in lieu of the issuance of fractional shares in connection with the exercise of options, warrants, or other convertible securitiesany similar concept having a comparable purpose;
(vii11) the redemption, repurchase, retirement or other acquisition of any Equity Interests of the Company or Indebtedness of the Issuers or any Equity Interests of any direct or indirect parent of the Company, in exchange for, or out of the proceeds of the substantially concurrent sale (other than to an Issuer or a Restricted Subsidiary) of, Equity Interests of the Company or any direct or indirect parent of the Company (in each case, other than any Disqualified Stock);
(12) the declaration and payment of regular quarterly dividends on to holders of any class or series of Disqualified Stock of the Company’s Equity Interests Issuers or any Restricted Subsidiary issued in accordance with past practice Section 4.10;
(13) so long as no Default has occurred and is continuing, other Restricted Payments in an aggregate amount outstanding taken together with all other Restricted Payments made pursuant to this clause (13) not to exceed $0.05 per share100.0 million outstanding at any one time;
(viii14) additional Restricted Payments not to exceed $150.0 million after August 27, 2012;
(ix) the repurchase pay all or a portion of the Company’s consideration payable for any Investment that would have been permitted to be made by the Issuers under this Indenture including, without limitation, the true up payments pursuant to the Bright House Acquisition Agreement; provided that the assets or Equity Interests acquired in an amount not such Investment (to exceed $50.0 million after August 27, 2012;
(x) distributions or payments the extent of Securitization Fees and purchases of Securitization Assets pursuant to a Securitization Repurchase Obligation in connection with a Qualified Securitization Financing;
(xi) any payments made in connection with the consummation of the transactions on substantially the terms described in the Offering Memorandum;
(xii) the payment of intercompany subordinated debt, the incurrence of which was permitted under Section 4.09(b)(vi);
(xiii) the purchase of fractional shares amounts distributed by the Company upon conversion of any securities of Issuers to make such Investment) are promptly contributed to the Company into Capital Interests capital of the Company;
(xiv15) the repurchaseso long as no Default or Event of Default has occurred and is continuing or would result therefrom, redemption or other acquisition or retirement for value of subordinated Indebtedness or Disqualified Interests pursuant to the provisions similar to those described under Section 4.14 and Section 4.10any Restricted Payments; provided that all Notes tendered by Holders of the Notes Leverage Ratio, after giving pro forma effect to such Restricted Payment, is less than or equal to 3.50 to 1.00;
(16) any distributions to any Parent to permit such Parent to pay (i) attorneys’ fees, investment banking fees, accountants’ fees, underwriting discounts and commissions and other customary fees and expenses (including any commitment and other fees payable in connection with credit facilities) actually incurred in connection with any issuance, sale or incurrence by such Parent of Equity Interests or Indebtedness, any exchange of securities or a tender for outstanding debt securities or any actual or proposed Investment, (ii) the related Change costs and expenses of Control Offer any offer to exchange privately placed securities in respect of the foregoing for publicly registered securities or Asset Sale Offerany similar concept having a comparable purpose or (iii) other administrative expenses (including legal, as applicableaccounting, have been repurchasedother professional fees and costs, redeemed or acquired for value printing and other such fees and expenses) incurred in fullthe ordinary course of business, in an aggregate amount in the case of this clause (iii) not to exceed $5.0 million in any fiscal year; and
(xv17) payment Restricted Payments in an aggregate amount not to exceed an amount equal to the sum of dividends on Disqualified Interests Total Leverage Excess Proceeds and Declined Excess Proceeds that has not been used to make any Investments pursuant to clause (21) of the Company or a Restricted Subsidiary, the issuance definition of which is permitted by this Indenture“Permitted Investments.
(c) ” 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 Subsidiary, as the case may be, any of its Restricted Subsidiaries 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 covenant shall be determined by an officer the Board of Directors of the Company, whose resolution with respect thereto shall be delivered to the Trustee. In 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 $100.0 million. Not later than the date of making any Restricted Payment other than in the form of cash having a fair market value in excess of $150.0 million, 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 Supplemental Indenture. For purposes of determining compliance with this Section 4.07, in the event that a Restricted Payment meets Payment, when made, met the criteria of more than one of the exceptions categories described in clauses (i1) through (xv17) above above, or is entitled to be made was permitted pursuant to the first paragraph of this covenantSection 4.07, the Company may, in its sole discretion, classify, and may later reclassify from time Issuers will be entitled to time, classify such Restricted Payment (or portion thereof) on the date of its payment or later reclassify such Restricted Payment (or portion thereof) in any portion thereof into or among any of such applicable provisionsmanner that complies with this Section 4.07.
Appears in 1 contract
Samples: First Supplemental Indenture (Cco Holdings Capital Corp)
Restricted Payments. (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly:
: (i) declare or pay any dividend on, or make any other payment or distribution on account of 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 (A) dividends or distributions accrued or payable in Equity Interests (other than Disqualified InterestsStock) of the Company or (B) 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 the Company (other than any such Equity Interests owned by the Company or any of its Restricted Subsidiary of the CompanySubsidiaries);
; (iii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value value, in each case, prior to any scheduled repayment, sinking fund payment or maturity, any Indebtedness that is subordinated to the Notes or any Note Guarantee (other than Indebtedness permitted under clause (vi) of the definition of “Permitted Debt”) Subsidiary Guarantees, except (a) a payment of interest or principal at Stated Maturity or (b) the payment, purchase, repurchase redemption, defeasance or other acquisition of any such Indebtedness or retirement purchased in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case, case due within one year of the date of such payment, purchase, repurchase redemption, defeasance or other acquisitionacquisition or retirement for value; or
or (iv) make any Restricted Investment (all such payments and other actions set forth in clauses (i) through (iv) above being collectively referred to as “Restricted Payments”), unless, at the time of and after giving effect to such Restricted Payment:
(Aa) no Event of Default shall have occurred and be continuing or would occur as a consequence thereofof such Restricted Payment;
(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 Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 4.09(a)4.09 hereof; and
(Cc) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after August 27beginning on October 1, 2012 2014 (excluding Restricted Payments permitted by clauses (i) (provided that at the time of declaring such dividend, such dividend was counted as a Restricted Payment) (ii), (iii), (iv), (v), (vi), (vii), (viii), (ix), (x), (xi), (xii), (xiii), (xiv) and (xvx) of Section 4.07(b)the next succeeding paragraph), is less than the sum, without duplication, of
: (1i) 50% of the Consolidated Net Income of the Company for the period (taken as one accounting period) from April 2beginning on October 1, 2012 2014 up 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 (2ii) 100% of the aggregate net proceeds, cash proceeds (including the fair market value of any property or Capital Interests, other than cash) received by the Company since August 27on or after October 1, 2012 2014 as a contribution to its common equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified InterestsStock) or from the issue or sale of convertible or exchangeable Disqualified Interests Stock or convertible or exchangeable debt securities of the Company that have been converted into or exchanged for such Equity Interests (other than Equity Interests (Interests, Disqualified Stock or Disqualified Interests or convertible debt securities) securities sold to a Subsidiary of the Company), together with plus (iii) the amount by which Indebtedness or Disqualified Stock incurred or issued 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 Equity Interests of the Company (other than Disqualified Stock) (less the amount of any cash, or the fair market value of any other asset, distributed by the Company or any Restricted Subsidiary upon such conversion or exchange); provided that such amount shall not exceed the aggregate cash and Cash Equivalents net proceeds received by the Company or any of its Restricted Subsidiaries at Subsidiary after the time of such conversion or exchange plus the amount by which Indebtedness of the Company and its Restricted Subsidiaries is reduced upon the conversion or exchange subsequent to August 27, 2012 of any Indebtedness or Disqualified Interests which are convertible into or exchangeable for Qualified Capital Interests of the Company or any of its Restricted Subsidiaries, plus
(3) 100% of the amount received, including the fair market value of any property received after August 27, 2012 by means of (A) the sale or other disposition (other than to the Company or a Restricted Subsidiary) of Restricted Investments made by the Company or its Restricted Subsidiaries and repurchases and redemptions of such Restricted Investments Issue Date from the Company or its Restricted Subsidiaries issuance and repayments of loans or advances which constitute Restricted Investments of the Company or its Restricted Subsidiaries or (B) the sale (other than to a Subsidiary of the Company) of such Indebtedness or Disqualified Stock; plus (iv) to the extent that any Restricted Investment that was made on or after October 1, 2014 has been or is sold for cash or otherwise liquidated or repaid, purchased or redeemed for cash, the lesser of (A) such cash (less the cost of disposition, if any) and (B) the amount of such Restricted Investment, plus (v) to the extent not otherwise included in the calculation of Consolidated Net Income of the Company or a Restricted Subsidiary) for such period, 100% of the Capital Interests of an Unrestricted Subsidiary or a distribution from an Unrestricted Subsidiary net reduction in Investments (other than in each case to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment) or a dividend from an Unrestricted Subsidiary, plus
(4Investments) in the case of the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary or the merger or consolidation of an Unrestricted Subsidiary into any Person other than the Company or a Restricted Subsidiary resulting from dividends, repayment of loans or advances or other transfers of assets, in each case to the transfer Company or any Restricted Subsidiary, plus (vi) to the extent not otherwise included in the calculation of assets Consolidated Net Income of an Unrestricted Subsidiary to the Company for such period, 100% of any dividends or interest payments received by the Company or a Restricted SubsidiarySubsidiary on and after the Issue Date from an Unrestricted Subsidiary or other Investment (other than a Permitted Investment), plus (vii) to the extent that any Unrestricted Subsidiary of the Company has been or is redesignated as a Restricted Subsidiary on or after October 1, 2014, the lesser of (A) the fair market value of the Company’s Investment in such Unrestricted Subsidiary (other than an Unrestricted Subsidiary to as of the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment), plus
(5) $141.0 million. The Board of Directors 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 in the Subsidiary so designated will be deemed to be Restricted Payments or Permitted Investments, in the Company’s discretion, at the time date of such designation redesignation and will reduce the amount available for Restricted Payments or Permitted Investments, as applicable. All (B) such outstanding Investments will be deemed to constitute Investments in an amount equal to the fair market value as of the date on which such Investments at the time of such designation. Such designation will only be permitted if such Restricted Payments or Permitted Investments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of was originally designated as an Unrestricted Subsidiary.
. So long as no Default has occurred and is continuing or would be caused thereby (bexcept in the case of clause (i) Section 4.07(a) shall of this paragraph), the preceding provisions will not prohibit:
: (i) the payment of any dividend or other distribution on, or redemption of, Equity Interests, within 60 days after the date of declaration of the dividend or call for redemption the giving of notice thereof, if if, at said the date of such declaration or call for redemption the giving of such notice the payment would have complied with the provisions of this Indenture;
; (ii) 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 the making of any Restricted Payment Investment, 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, or capital contribution in respect of, Equity Interests of the Company (other than any Disqualified Interests) or from a contribution of capital to the CompanyStock); provided that the amount of any such net cash proceeds that are utilized for any such redemption, repurchase, retirement, defeasance or other acquisition shall or any such Investment will be excluded from Section 4.07(a)(C)(2);
clause (c)(ii) of the preceding paragraph; (iii) the defeasance, redemption, repurchase, replacement, extension, renewal, refinancing or retirement repurchase or other acquisition of subordinated Indebtedness of the Company or Disqualified Interests in exchange for or any Guarantor with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness;
; (iv) the declaration, or payment of any dividend or other payment or distribution by a Restricted Subsidiary of the Company to the holders of its common Equity Interests on a pro rata basis;
; (v) repurchases of Equity Interests deemed to occur upon exercise of stock options if those Equity Interests represent all or a portion of the exercise price of those options; (vi) 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 (in the event such Equity Interests are not owned by any current or former officer, director, employee, consultant or agent of the Company or any of its Restricted Subsidiaries (or Heirs or other permitted transferees thereofSubsidiaries) upon death, disability, retirement, severance or termination of employment or service or in connection with a stock option plan or agreement, shareholders agreement, or similar agreement, plan or arrangement, including amendments thereto; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may not exceed: (A) $10.0 million in any calendar year, with unused amounts being available to be used in any later calendar year; provided that such amount in any calendar year may be increased in an amount not to exceed the net cash proceeds from the sale of Equity Interests $20.0 million in any fiscal year; (other than Disqualified Interests) of the Company to any officer, director, employee or agent of the Company or any Subsidiary of the Company that occurs after the date of this Indenture, to the extent such net cash proceeds have not otherwise been applied to make Restricted Payments pursuant to Section 4.07(a)(C)(2); plus (Bvii) the cash proceeds of key man life insurance policies received purchase by the Company and its Restricted Subsidiaries after the date of this Indenture that are used for the repurchase, redemption or other acquisition or retirement for value owned by the individual (or such individual’s estate) that is the subject of such insurance;
(vi) the repurchase of Equity Interests deemed to occur upon the exercise of options, warrants or other convertible securities to the extent such Equity Interests represent a portion of the exercise price of those options, warrants or other convertible securities and cash payments in lieu of the issuance of fractional shares in connection with the exercise arising out of optionsstock dividends, warrants, splits or other convertible securities;
combinations or business combinations; (viiviii) the declaration and payment of regular quarterly dividends on to holders of any class or series of preferred stock of the Company’s Equity Interests Company issued or incurred in accordance compliance with past practice and not Section 4.09 hereof to exceed $0.05 per share;
the extent such dividends are included in the definition of “Fixed Charges”; (viiiix) additional Restricted Payments not to exceed $150.0 million after August 27, 2012;
under this clause (ix) in the repurchase aggregate, plus, to the extent Restricted Payments made pursuant to this clause (ix) are Investments made by the Company or any of its Restricted Subsidiaries in any Person and such Investment is sold for cash or otherwise liquidated or repaid, purchased or redeemed for cash, an amount equal to the lesser of (A) such cash (less the cost of disposition, if any) and (B) the amount of such Restricted Payment; provided that the amount of such cash will be excluded from clause (c)(iv) of the Company’s Equity Interests in an amount not to exceed $50.0 million after August 27, 2012;
immediately preceding paragraph; or (x) distributions or payments of Securitization Fees and purchases of Securitization Assets pursuant to a Securitization Repurchase Obligation in connection with a Qualified Securitization Financing;
(xi) any payments made in connection with other Restricted Payments, so long as the consummation of the transactions on substantially the terms described in the Offering Memorandum;
(xii) the payment of intercompany subordinated debt, the incurrence of which was permitted under Section 4.09(b)(vi);
(xiii) the purchase of fractional shares by the Company upon conversion of any securities Consolidated Total Leverage Ratio of the Company into Capital Interests is no greater than 3.0 to 1 determined on a pro forma basis for the most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date of the Company;
(xiv) the repurchase, redemption or other acquisition or retirement for value of subordinated Indebtedness or Disqualified Interests pursuant to the provisions similar to those described under Section 4.14 and Section 4.10; provided that all Notes tendered by Holders of the Notes in connection with the related Change of Control Offer or Asset Sale Offer, as applicable, have been repurchased, redeemed or acquired for value in full; and
(xv) payment of dividends on Disqualified Interests of the Company or a such Restricted Subsidiary, the issuance of which is permitted by this Indenture.
(c) Payment. 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 by an officer the Company (or, if such fair market value exceeds $10.0 million, by the Board of Directors of the Company. In the event that a Restricted Payment meets the criteria of more than one of the exceptions described in (i) through (xv) above or is entitled to be made pursuant to the first paragraph of this covenant, the Company may, in its sole discretion, classify, and may later reclassify from time to time, such Restricted Payment or any portion thereof into or among any of such applicable provisions).
Appears in 1 contract
Restricted Payments. (a) The Company shall Borrower 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 (i) the Borrower may declare or and pay any dividend or make any other payment or distribution on account of the Company’s or any dividends with respect to its common stock payable solely in additional shares of its Restricted Subsidiaries’ Equity Interests (includingcommon stock, 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 (A) dividends or distributions accrued or payable in Equity Interests (other than Disqualified Interests) of the Company or (B) 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 the Company (other than any such Equity Interests owned by the Company or any Restricted Subsidiary of the Company);
may declare and pay dividends ratably to its equity holders and (iii) the Borrower may make any payment on Restricted Payments pursuant to and in accordance with stock option plans or with respect to, other benefit plans for management or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness that is subordinated to the Notes or any Note Guarantee (other than Indebtedness permitted under clause (vi) employees of the definition of “Permitted Debt”) except (a) a payment of interest or principal at Stated Maturity or (b) Borrower and the purchase, repurchase or other acquisition of any such Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case, due within one year of the date of such purchase, repurchase or other acquisition; or
(iv) make any Restricted Investment (all such payments and other actions set forth in clauses (i) through (iv) above being collectively referred to as “Restricted Payments”), unless, at the time of and after giving effect to such Restricted Payment:
(A) no 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 Fixed Charge Coverage Ratio test set forth in Section 4.09(a); and
(C) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after August 27, 2012 (excluding Restricted Payments permitted by clauses (i) (provided that at the time of declaring such dividend, such dividend was counted as a Restricted Payment) (ii), (iii), (iv), (v), (vi), (vii), (viii), (ix), (x), (xi), (xii), (xiii), (xiv) and (xv) of Section 4.07(b)), is less than the sum, without duplication, of
(1) 50% of the Consolidated Net Income of the Company for the period (taken as one accounting period) from April 2, 2012 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
(2) 100% of the aggregate net proceeds, including the fair market value of any property or Capital Interests, received by the Company since August 27, 2012 as a contribution to its equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified Interests) or from the issue or sale of Disqualified Interests or debt securities of the Company that have been converted into such Equity Interests (other than Equity Interests (or Disqualified Interests or convertible debt securities) sold to a Subsidiary of the Company), together with the aggregate cash and Cash Equivalents received by the Company or any of its Restricted Subsidiaries at the time of such conversion or exchange plus the amount by which Indebtedness of the Company and its Restricted Subsidiaries is reduced upon the conversion or exchange subsequent to August 27, 2012 of any Indebtedness or Disqualified Interests which are convertible into or exchangeable for Qualified Capital Interests of the Company or any of its Restricted Subsidiaries, plus
(3) 100% of the amount received, including the fair market value of any property received after August 27, 2012 by means of (A) the sale or other disposition (other than to the Company or a Restricted Subsidiary) of Restricted Investments made by the Company or its Restricted Subsidiaries and repurchases and redemptions of such Restricted Investments from the Company or its Restricted Subsidiaries and repayments of loans or advances which constitute Restricted Investments of the Company or its Restricted Subsidiaries or (B) the sale (other than to the Company or a Restricted Subsidiary) of the Capital Interests of an Unrestricted Subsidiary or a distribution from an Unrestricted Subsidiary (other than in each case to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment) or a dividend from an Unrestricted Subsidiary, plus
(4) in the case of the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary or the merger or consolidation of an Unrestricted Subsidiary into the Company or a Restricted Subsidiary or the transfer of assets of an Unrestricted Subsidiary to the Company or a Restricted Subsidiary, the fair market value of the Investment in such Unrestricted Subsidiary (other than an Unrestricted Subsidiary to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment), plus
(5) $141.0 million. The Board of Directors 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 in the Subsidiary so designated will be deemed to be Restricted Payments or Permitted Investments, in the Company’s discretion, at the time of such designation and will reduce the amount available for Restricted Payments or Permitted Investments, as applicable. 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 Payments or Permitted Investments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary.
(b) Section 4.07(aThe Borrower will not, and will not permit any Subsidiary to, make or agree to pay or make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) shall not prohibit:
of or in respect of principal of or interest on any Indebtedness, or any payment or other distribution (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any Indebtedness, except (i) the payment of any dividend or other distribution or redemption within 60 days after Indebtedness created under the date of declaration or call for redemption thereof, if at said date of declaration or call for redemption such payment would have complied with the provisions of this Indenture;
Loan Documents; (ii) the making so long as no Default shall have occurred or would result therefrom, payment of regularly scheduled interest and principal payments as and when due in respect of any Restricted Payment in exchange for, or out of the net cash proceeds of the substantially concurrent sale Indebtedness (other than subject to a Subsidiary of the Company) of, Equity Interests of the Company (other than any Disqualified Interests) or from a contribution of capital to the Companysubordination provisions thereof); 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 Section 4.07(a)(C)(2);
(iii) prepayment at the defeasance, redemption, repurchase, replacement, extension, renewal, refinancing or retirement or other acquisition of subordinated Indebtedness or Disqualified Interests in exchange for or with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness;
(iv) the declaration, or payment of any dividend or other distribution by a Subsidiary consummation 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 Acquisition or any Subsidiary Permitted Acquisition of the Company held by any current or former officer, director, employee, consultant or agent of Company or any of its Restricted Subsidiaries (or Heirs or other permitted transferees thereof) upon death, disability, retirement, severance or termination of employment or service or in connection with a stock option plan or agreement, shareholders agreement, or similar agreement, plan or arrangement, including amendments thereto; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may not exceed: (A) $10.0 million in any calendar year, with unused amounts being available to be used in any later calendar year; provided that such amount in any calendar year may be increased in an amount not to exceed the net cash proceeds from the sale of Equity Interests (other than Disqualified Interests) of the Company to any officer, director, employee or agent of the Company or any Subsidiary of the Company that occurs after the date of this Indenture, to the extent such net cash proceeds have not otherwise been applied to make Restricted Payments pursuant to Section 4.07(a)(C)(2); plus (B) the cash proceeds of key man life insurance policies received by the Company and its Restricted Subsidiaries after the date of this Indenture that are used for the repurchase, redemption or other acquisition or retirement for value owned by the individual (or such individual’s estate) that is the subject of such insurance;
(vi) the repurchase of Equity Interests deemed to occur upon the exercise of options, warrants or other convertible securities to the extent such Equity Interests represent a portion of the exercise price of those options, warrants or other convertible securities and cash payments in lieu of the issuance of fractional shares Indebtedness assumed in connection with the exercise of options, warrants, Acquisition or other convertible securities;
such Permitted Acquisition; and (vii) the declaration and payment of regular quarterly dividends on the Company’s Equity Interests in accordance with past practice and not to exceed $0.05 per share;
(viii) additional Restricted Payments not to exceed $150.0 million after August 27, 2012;
(ix) the repurchase of the Company’s Equity Interests in an amount not to exceed $50.0 million after August 27, 2012;
(x) distributions or payments of Securitization Fees and purchases of Securitization Assets pursuant to a Securitization Repurchase Obligation in connection with a Qualified Securitization Financing;
(xi) any payments made in connection with the consummation of the transactions on substantially the terms described in the Offering Memorandum;
(xii) the payment of intercompany subordinated debt, the incurrence of which was permitted under Section 4.09(b)(vi);
(xiii) the purchase of fractional shares by the Company upon conversion of any securities of the Company into Capital Interests of the Company;
(xiv) the repurchase, redemption or other acquisition or retirement for value of subordinated Indebtedness or Disqualified Interests pursuant to the provisions similar to those described under Section 4.14 and Section 4.10; provided that all Notes tendered by Holders of the Notes in connection with the related Change of Control Offer or Asset Sale Offer, as applicable, have been repurchased, redeemed or acquired for value in full; and
(xviv) payment of dividends on Disqualified Interests secured Indebtedness that becomes due as a result of the Company voluntary sale or a Restricted Subsidiary, the issuance of which is permitted by this Indenture.
(c) The amount of all Restricted Payments (other than cash) shall be the fair market value on the date transfer of the Restricted Payment of property or assets securing such Indebtedness and otherwise permitted under the asset(s) or securities proposed to be transferred or issued by the Company or such Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall be determined by an officer of the Company. In the event that a Restricted Payment meets the criteria of more than one of the exceptions described in (i) through (xv) above or is entitled to be made pursuant to the first paragraph of this covenant, the Company may, in its sole discretion, classify, and may later reclassify from time to time, such Restricted Payment or any portion thereof into or among any of such applicable provisionsLoan Documents.
Appears in 1 contract
Samples: Credit Agreement (Jupitermedia Corp)
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 ’s, or any of its Restricted Subsidiaries’ Equity Interests (includingInterests, without limitation, including any payment dividend or distribution payable 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 (Aa) dividends or distributions accrued or by the Company payable solely in Equity Interests (other than Disqualified InterestsStock) of the Company Company; or (Bb) dividends or distributions to by a Restricted Subsidiary so long as, in the case of any dividend or distribution payable on or in respect of any class or series of securities issued by a Restricted Subsidiary, the Company or a Restricted Subsidiary receives at least its pro rata share of the Company)such dividend or distribution in accordance with its Equity Interests in such class or series of securities;
(ii2) 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 the Company (other than any such Equity Interests owned by the Company or any Restricted Subsidiary of the Company);
(iii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness that is subordinated to Equity Interests of the Notes Company, or any Note Guarantee direct or indirect parent of the Company, including any purchase, redemption, defeasance, acquisition or retirement, in connection with any merger or consolidation;
(3) make any principal payment on, or redeem, repurchase, defease or otherwise acquire or retire for value in each case, prior to any scheduled repayment, sinking fund payment or maturity, any Subordinated Indebtedness, other than (a) Indebtedness permitted under clause Section 4.09(b)(7) and (vi) of the definition of “Permitted Debt”) except (a) a payment of interest or principal at Stated Maturity 8) or (b) the purchase, repurchase or other acquisition of any such Subordinated Indebtedness purchased in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case, case due within one year of the date of such purchase, repurchase or other acquisition; or
(iv4) make any Restricted Investment Investment; (all such payments and other actions set forth in clauses (i1) through (iv4) above (other than any exceptions thereof) being collectively referred to as “Restricted Payments”), unless, at the time of and after giving effect to such Restricted Payment:
(AI) no Event of Default shall have occurred and be continuing or would occur as a consequence thereof;
(BII) immediately after giving effect to such transaction on a pro forma basis, 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 could incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in under Section 4.09(a)) herein; and
(CIII) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after August 27, 2012 the Issue Date (excluding including Restricted Payments permitted by clauses (i) (provided that at the time of declaring such dividend, such dividend was counted as a Restricted Payment) (ii1), (iii2) (with respect to the payment of dividends on Refunding Capital Stock (as defined below) pursuant to paragraph (b) thereof only), (iv6)(c), (v7), (vi), (vii), (viii), (ix), (x), (xi), (xii), (xiii), (xiv9) and (xv13) (to the extent not deducted in calculating Consolidated Net Income) of Section 4.07(b), but excluding all other Restricted Payments permitted by Section 4.07(b), is less than the sum, sum of (without duplication, of):
(1A) 50% of the Consolidated Net Income of the Company for the period (taken as one accounting period) from April 2beginning on October 1, 2012 2020, 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 (Payment, or, if in the case such Consolidated Net Income for such period is a deficit, less minus 100% of such deficit), ; plus
(2B) 100% of the aggregate net proceeds, including cash proceeds and the fair market value of any marketable securities or other property or Capital Interests, received by the Company since August 27, 2012 as a contribution to its equity capital or from immediately after the issue or sale of Equity Interests of the Company Issue Date (other than Disqualified Interests) or from the issue or sale of Disqualified Interests or debt securities of the Company that have been converted into such Equity Interests (other than Equity Interests (or Disqualified Interests or convertible debt securities) sold to a Subsidiary of the Company), together with the aggregate cash and Cash Equivalents received by the Company or any of its Restricted Subsidiaries at the time of such conversion or exchange plus the amount by which Indebtedness of the Company and its Restricted Subsidiaries is reduced upon the conversion or exchange subsequent to August 27, 2012 of any Indebtedness or Disqualified Interests which are convertible into or exchangeable for Qualified Capital Interests of the Company or any of its Restricted Subsidiaries, plus
(3) 100% of the amount received, including the fair market value of any property received after August 27, 2012 by means of (A) the sale or other disposition (other than to the Company or a Restricted Subsidiary) of Restricted Investments made by the Company or its Restricted Subsidiaries and repurchases and redemptions of such Restricted Investments from the Company or its Restricted Subsidiaries and repayments of loans or advances which constitute Restricted Investments of the Company or its Restricted Subsidiaries or (B) the sale (other than to the Company or a Restricted Subsidiary) of the Capital Interests of an Unrestricted Subsidiary or a distribution from an Unrestricted Subsidiary (other than in each case to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment) or a dividend from an Unrestricted Subsidiary, plus
(4) in the case of the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary or the merger or consolidation of an Unrestricted Subsidiary into the Company or a Restricted Subsidiary or the transfer of assets of an Unrestricted Subsidiary to the Company or a Restricted Subsidiary, the fair market value of the Investment in such Unrestricted Subsidiary (other than an Unrestricted Subsidiary to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment), plus
(5) $141.0 million. The Board of Directors 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 in the Subsidiary so designated will be deemed to be Restricted Payments or Permitted Investments, in the Company’s discretion, at the time of such designation and will reduce the amount available for Restricted Payments or Permitted Investments, as applicable. 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 Payments or Permitted Investments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary.
(b) Section 4.07(a) shall not prohibit:
(i) the payment of any dividend or other distribution or redemption within 60 days after the date of declaration or call for redemption thereof, if at said date of declaration or call for redemption such payment would have complied with the provisions of this Indenture;
(ii) the making of any Restricted Payment in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Subsidiary of the Company) of, Equity Interests of the Company (other than any Disqualified Interests) or from a contribution of capital to the Company; 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 Section 4.07(a)(C)(2);
(iii) the defeasance, redemption, repurchase, replacement, extension, renewal, refinancing or retirement or other acquisition of subordinated Indebtedness or Disqualified Interests in exchange for or with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness;
(iv) the declaration, or payment of any dividend or other distribution 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 current or former officer, director, employee, consultant or agent of Company or any of its Restricted Subsidiaries (or Heirs or other permitted transferees thereof) upon death, disability, retirement, severance or termination of employment or service or in connection with a stock option plan or agreement, shareholders agreement, or similar agreement, plan or arrangement, including amendments thereto; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may not exceed: (A) $10.0 million in any calendar year, with unused amounts being available to be used in any later calendar year; provided that such amount in any calendar year may be increased in an amount not to exceed the net cash proceeds from the sale of Equity Interests (other than Disqualified Interests) of the Company to any officer, director, employee or agent of the Company or any Subsidiary of the Company that occurs after the date of this Indenture, to the extent such net cash proceeds have not otherwise been applied used to make Restricted Payments incur Indebtedness, or issue Disqualified Stock or Preferred Stock pursuant to Section 4.07(a)(C)(24.09(b)(12)(A); plus (B) from the cash proceeds of key man life insurance policies received by the Company and its Restricted Subsidiaries after the date of this Indenture that are used for the repurchase, redemption issue or other acquisition or retirement for value owned by the individual (or such individual’s estate) that is the subject of such insurance;sale of:
(vii) the repurchase of Equity Interests deemed to occur upon the exercise of options, warrants or other convertible securities to the extent such Equity Interests represent a portion of the exercise price of those options, warrants or other convertible securities and cash payments in lieu of the issuance of fractional shares in connection with the exercise of options, warrants, or other convertible securities;
(vii) the declaration and payment of regular quarterly dividends on the Company’s Equity Interests in accordance with past practice and not to exceed $0.05 per share;
(viii) additional Restricted Payments not to exceed $150.0 million after August 27, 2012;
(ix) the repurchase of the Company’s Equity Interests in an amount not to exceed $50.0 million after August 27, 2012;
(x) distributions or payments of Securitization Fees and purchases of Securitization Assets pursuant to a Securitization Repurchase Obligation in connection with a Qualified Securitization Financing;
(xi) any payments made in connection with the consummation of the transactions on substantially the terms described in the Offering Memorandum;
(xii) the payment of intercompany subordinated debt, the incurrence of which was permitted under Section 4.09(b)(vi);
(xiii) the purchase of fractional shares by the Company upon conversion of any securities of the Company into Capital Interests of the Company;
, including Treasury Capital Stock (xiv) the repurchaseas defined below), redemption or other acquisition or retirement for value of subordinated Indebtedness or Disqualified Interests pursuant to the provisions similar to those described under Section 4.14 but excluding cash proceeds and Section 4.10; provided that all Notes tendered by Holders of the Notes in connection with the related Change of Control Offer or Asset Sale Offer, as applicable, have been repurchased, redeemed or acquired for value in full; and
(xv) payment of dividends on Disqualified Interests of the Company or a Restricted Subsidiary, the issuance of which is permitted by this Indenture.
(c) The amount of all Restricted Payments (other than cash) shall be the fair market value on of marketable securities or other property received from the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company or such Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall be determined by an officer of the Company. In the event that a Restricted Payment meets the criteria of more than one of the exceptions described in (i) through (xv) above or is entitled to be made pursuant to the first paragraph of this covenant, the Company may, in its sole discretion, classify, and may later reclassify from time to time, such Restricted Payment or any portion thereof into or among any of such applicable provisions.sale of:
Appears in 1 contract
Samples: Indenture (Element Solutions Inc)
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 (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 (A) dividends or distributions accrued or payable in Equity Interests (other than Disqualified InterestsStock) of the Company or (B) and other than dividends or distributions payable to the Company or a Restricted Subsidiary of the Company);
(ii2) purchase, redeem repurchase, redeem, defease 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 the Company (Company, in each case held by Persons other than any such Equity Interests owned by the Company or any a Restricted Subsidiary of the Company);
(iii3) make any principal payment on or with respect to, or purchase, repurchase, redeem, defease or otherwise acquire or retire for value any Subordinated Indebtedness that is subordinated to the Notes or any Note Guarantee (other than Indebtedness permitted under clause (vi) of the definition of “Permitted Debt”) except (a) a payment of interest or principal at Stated Maturity or (b) the payment, purchase, repurchase repurchase, redemption, defeasance, acquisition or other acquisition retirement of any such (i) intercompany Indebtedness between or among the Company and its Restricted Subsidiaries, and (ii) Subordinated Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturitymaturity thereof, in each case, case due within one year of the date of such payment, purchase, repurchase repurchase, redemption, defeasance, acquisition or other acquisitionretirement); or
(iv4) make any Restricted Investment (all such payments and other actions set forth in clauses (i1) through (iv4) above being collectively referred to as “Restricted Payments”), unless, at the time of and after giving effect to such Restricted Payment:
(A1) no 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 Fixed Charge Coverage Ratio test set forth in Section 4.09(a); and
(C3) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after August 27, 2012 the Issue Date (excluding Restricted Payments permitted by clauses clause (i) (provided that at the time of declaring such dividend, such dividend was counted as a Restricted Payment) (ii2), (iii3), (iv4), (v5), (vi6), (vii7), (viii8), (9), (ix10), (x11), (xi12), (xii13), (xiii14), (xiv15), (16) and or (xv17) of Section 4.07(b)), is less than the sum, without duplication, of:
(1A) 50100% of the cumulative Consolidated Net Income Cash Flow (excluding the amount of any dividends or distributions included in the calculation of Consolidated Cash Flow to the extent the Company elects to include such dividends or distributions in clause (14)(b) or 20(b) of the definition of “Permitted Investments” in accordance with such clause) of the Company for the period (taken as one accounting period) from April 2commencing on January 1, 2012 2020, 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 minus 1.5 times the Fixed Charges of the Company for the same period (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficittaken as one accounting period), plus
(2B) 100% of the aggregate net proceeds, proceeds (including the fair market value of any property or Capital Interests, other than cash) received by the Company since August 27(other than any net proceeds or assets received in connection with the contribution of assets pursuant to the Separation Agreement) after the Issue Date, 2012 as a contribution to its common equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified Interests) or from the issue or sale of Disqualified Interests or debt securities of the Company that have been converted into such Equity Interests (other than Equity Interests (or Disqualified Interests or convertible debt securities) sold to a Subsidiary of the Company)) of:
(i) Equity Interests (other than Disqualified Stock or Designated Preferred Stock) of the Company; or
(ii) Disqualified Stock, together with Designated Preferred Stock or Indebtedness of the aggregate cash and Cash Equivalents received Company that in each case have been converted into or exchanged for Equity Interests (other than Disqualified Stock or Designated Preferred Stock) of the Company, plus
(C) 100% of the fair market value as of the date of issuance of any Equity Interests (other than Disqualified Stock) issued since the Issue Date, by the Company as consideration for the purchase by the Company or any of its Restricted Subsidiaries at the time of such conversion all or exchange plus the amount by which Indebtedness substantially all of the Company and its assets of, or a majority of the Voting Stock of, a Related Business (including by means of a merger, consolidation or other business combination permitted under this Indenture); plus
(D) to the extent that any Restricted Subsidiaries Investment that was made after the Issue Date is reduced upon sold for cash or other property or otherwise liquidated or repaid for cash, in each case to the conversion extent such cash or exchange subsequent to August 27, 2012 of any Indebtedness or Disqualified Interests which are convertible into or exchangeable for Qualified Capital Interests of other property is received by the Company or any Restricted Subsidiary, the cash return of its capital with respect to such Restricted SubsidiariesInvestment or the fair market value of such other property, except to the extent increasing the amount available to make Restricted Payments pursuant to Section 4.07(b)(15); plus
(3E) 100% of the amount received, aggregate net proceeds (including the fair market value of property other than cash) received by the Company or any property received Restricted Subsidiary after August 27, 2012 by means of the Issue Date from:
(Ai) the issuance, sale or other disposition (other than to the Company or a Restricted Subsidiary) of Restricted Investments made by or the Company Equity Interests or its Restricted Subsidiaries and repurchases and redemptions of such Restricted Investments from the Company or its Restricted Subsidiaries and repayments of loans or advances which constitute Restricted Investments of the Company or its Restricted Subsidiaries or (B) the sale (other than to the Company or a Restricted Subsidiary) of the Capital Interests assets of an Unrestricted Subsidiary Subsidiary; and
(ii) any distribution or a distribution from an Unrestricted Subsidiary (other than in each case to the extent the Investment in such Unrestricted Subsidiary constituted a Permitted Investment) or a dividend from an Unrestricted Subsidiary, in each case, except to the extent any such amount has already been included in the calculation of Consolidated Cash Flow or to the extent increasing the amount available to make (i) Restricted Payments pursuant to Section 4.07(b)(15) or (ii) Investments pursuant to clause (14)(b) or (20)(b) of the definition of “Permitted Investments”; plus
(4F) in the case of the redesignation of an event any Unrestricted Subsidiary has been redesignated as a Restricted Subsidiary or the merger has been merged, consolidated or consolidation of an Unrestricted Subsidiary into amalgamated with or into, or transfers or conveys its assets to, or is liquidated into, the Company or a any of its Restricted Subsidiary or the transfer of assets of an Unrestricted Subsidiary to the Company or a Restricted SubsidiarySubsidiaries, the fair market value of the Company’s or its Restricted Subsidiaries’ Investment in such Unrestricted Subsidiary (other than an Unrestricted Subsidiary as of the date of such redesignation, merger, consolidation or amalgamation, or of the assets transferred or conveyed, as applicable, except to the extent increasing the Investment in such Unrestricted Subsidiary constituted a amount available to make (i) Restricted Payments pursuant to Section 4.07(b)(15) or (ii) Investments pursuant to clause (14)(b) or (20)(b) of the definition of “Permitted Investment), Investments”; plus
(5G) $141.0 2,713 million. The Board of Directors 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 in the Subsidiary so designated will be deemed to be Restricted Payments or Permitted Investments, in the Company’s discretion, at the time of such designation and will reduce the amount available for Restricted Payments or Permitted Investments, as applicable. 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 Payments or Permitted Investments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary.
(b) The provisions of Section 4.07(a) shall will not prohibit:
(i1) the payment of any dividend or other distribution or consummation of any irrevocable redemption within 60 90 days after the date of declaration thereof or call for the giving of any redemption thereofnotice related thereto, if at said date of declaration or call for redemption notice such payment would have complied with the provisions of this Indenture;
(ii2) the making of any Restricted 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, Equity Interests of the Company (other than any Disqualified InterestsStock) or from a the contribution of common equity capital to the CompanyCompany within 10 Business Days; provided that the amount of any such net cash proceeds that are utilized for any such Restricted Payment shall be excluded from clause (3)(B) of Section 4.07(a);
(3) the redemption, repurchase, retirement, defeasance or other acquisition shall be excluded from Section 4.07(a)(C)(2);
(iii) the defeasance, redemption, repurchase, replacement, extension, renewal, refinancing or retirement or other acquisition for value of subordinated Subordinated Indebtedness or Disqualified Interests in exchange for Stock of the Company or any of its Restricted Subsidiaries with the net cash proceeds from an a substantially concurrent (i) incurrence of Permitted Refinancing IndebtednessIndebtedness or (ii) issuance of Disqualified Stock permitted to be issued under this Indenture;
(iv4) the declaration, or payment of any dividend (or, in the case of any partnership, limited liability company or other distribution business entity, any similar distribution) by a Restricted Subsidiary of the Company to the holders of its common Equity Interests on a pro rata basis;
(v5) 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 current or former officer, directormanager, employee, consultant director or agent employee of the Company (or any of its Restricted Subsidiaries (or Heirs Subsidiaries) pursuant to any equity subscription agreement, stock option agreement, employment agreement, severance agreement or other permitted transferees thereof) upon death, disability, retirement, severance executive compensation arrangement or termination of employment any other management or service or in connection with a stock option employee benefit plan or agreement, shareholders agreement, shareholders’ agreement or similar agreement, plan or arrangement, including amendments thereto; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may shall not exceed: exceed $25.0 million in any calendar year (A) with unused amounts in any calendar year being carried over to subsequent calendar years; provided that the aggregate purchase price for all such repurchased, redeemed, acquired or retired Equity Interests shall not exceed $10.0 40.0 million in any calendar year); and provided, with unused amounts being available to be used in any later calendar year; provided further, that such amount in any calendar year may be increased in by an amount not to exceed the net cash proceeds received by the Company from the sale sales of Equity Interests (other than Disqualified InterestsStock) of the Company to any officerofficers, directormanagers, employee directors or agent employees of the Company or any of its Restricted Subsidiaries that occur after the Issue Date (provided that the amount of such cash proceeds used for any such repurchase, redemption, acquisition or retirement will not increase the amount available for Restricted Payments under clause (3)(B) of Section 4.07(a); and provided, further, that the Company may elect to apply all or any portion of the aggregate increase contemplated by this proviso in any calendar year); and provided, further, that cancellation of Indebtedness owing to the Company from members of management of the Company or any Restricted Subsidiary of the Company that occurs after the date in connection with a repurchase of this Indenture, to the extent such net cash proceeds have not otherwise been applied to make Restricted Payments pursuant to Section 4.07(a)(C)(2); plus (B) the cash proceeds Equity Interests of key man life insurance policies received by the Company and its will not be deemed to constitute a Restricted Subsidiaries after the date of this Indenture that are used for the repurchase, redemption or other acquisition or retirement for value owned by the individual (or such individual’s estate) that is the subject of such insurancePayment;
(vi6) the repurchase of Equity Interests deemed to occur (i) upon the exercise of options, warrants or other convertible securities stock options to the extent such Equity Interests represent a portion of the exercise price of those options, warrants stock options and (ii) in connection with the withholding of a portion of the Equity Interests granted or other convertible securities and cash awarded to a director or an employee to pay for the taxes payable by such director or employee upon such grant or award;
(7) payments to holders of the Company’s capital stock in lieu of the issuance of fractional shares in connection with the exercise of options, warrants, or other convertible securitiesits Capital Stock;
(vii) 8) the declaration and payment redemption, repurchase, retirement, defeasance or other acquisition of regular quarterly dividends on Disqualified Stock of the Company in exchange for Disqualified Stock of the Company or with the net cash proceeds from a substantially concurrent issuance of Disqualified Stock by the Company’s Equity Interests , in accordance with past practice and not each case that is permitted to exceed $0.05 per sharebe issued as described under Section 4.09;
(viii) additional Restricted Payments not to exceed $150.0 million after August 27, 2012;
(ix) the repurchase of the Company’s Equity Interests in an amount not to exceed $50.0 million after August 27, 2012;
(x) distributions or payments of Securitization Fees and purchases of Securitization Assets pursuant to a Securitization Repurchase Obligation in connection with a Qualified Securitization Financing;
(xi) any payments made in connection with the consummation of the transactions on substantially the terms described in the Offering Memorandum;
(xii) the payment of intercompany subordinated debt, the incurrence of which was permitted under Section 4.09(b)(vi);
(xiii) the purchase of fractional shares by the Company upon conversion of any securities of the Company into Capital Interests of the Company;
(xiv9) the repurchase, redemption or other acquisition or retirement for value of subordinated any Subordinated Indebtedness or Disqualified Interests pursuant to in accordance with the provisions similar to those described under Section 4.14 Sections 4.10 and Section 4.10; 4.14, provided that all Notes validly tendered by Holders of the Notes in connection with the related a Change of Control Offer or Asset Sale Net Proceeds Offer, as applicable, have been repurchased, redeemed or acquired for value in full; andvalue;
(xv10) the declaration and payment of dividends on to holders of any class or series of Disqualified Interests Stock of the Company or any of its Restricted Subsidiaries or any class or series of Preferred Stock of a Restricted Subsidiary issued in accordance with Section 4.09 to the extent such dividends are included in the definition of “Fixed Charges”;
(11) the declaration and payment of dividends to holders of any class or series of Designated Preferred Stock of the Company;
(12) the distribution, as a dividend or otherwise, of Capital Stock of, or Indebtedness owed to the Company or a Restricted Subsidiary by, any Unrestricted Subsidiary, the issuance of which is permitted by this Indenture.;
(c13) payments or distributions to satisfy dissenters’ rights, pursuant to or in connection with a consolidation, merger or transfer of assets that complies with the provisions of this Indenture applicable to mergers, consolidations and transfers of all or substantially all of the property and assets of the Company;
(14) the purchase, redemption, acquisition, cancellation or other retirement for a nominal value per right of any rights granted to all of the holders of Common Stock of the Company pursuant to any shareholders’ rights plan adopted for the purpose of protecting shareholders from unfair takeover tactics; provided that any such purchase, redemption, acquisition, cancellation or other retirement of such rights is not for the purpose of evading the limitations of this Section 4.07 (all as determined in good faith by a senior financial officer of the Company);
(15) Restricted Payments in an aggregate amount under this clause (15) at any time outstanding not to exceed the greater of $300.0 million and 4.0% of Consolidated Total Assets (determined as of the date of any Restricted Payment pursuant to this clause (15));
(16) Restricted Payments in an aggregate amount in any fiscal year not to exceed an amount equal to 6.0% of the Market Capitalization; provided, that at least one class of the Company’s Common Stock has been listed on The New York Stock Exchange (or, if the primary listing of such Common Stock is on another exchange, on such other exchange) for the 30 consecutive trading days immediately preceding the date of such Restricted Payment; and
(17) other Restricted Payments so long as the Consolidated Leverage Ratio, calculated as of the date of such Restricted Payment and after giving pro forma effect thereto (including, without limitation, to the incurrence of any Indebtedness to finance such Restricted Payment), does not exceed 4.0 to 1.0; provided that in the case of clauses (16) and (17) no Default shall have occurred and be continuing. 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 For purposes of any non-cash Restricted Payment shall be determined by an officer of the Company. In determining compliance with this Section 4.07, in the event that a Restricted Payment meets the criteria of more than one of the exceptions described in clauses (i1) through (xv17) above or is entitled to be made pursuant to this Section 4.07(a) or one or more clauses of the first paragraph definition of this covenant“Permitted Investments”, the Company maywill be permitted, in its sole discretion, classifyto classify the Restricted Payment, and may or later reclassify from time to time, such the Restricted Payment in whole or in part, in any manner that complies with this Section 4.07. For avoidance of doubt, nothing in this Indenture will restrict the repurchase, redemption, defeasance or other acquisition or retirement for value of the Notes or any portion thereof into or among of the Company’s other outstanding senior notes, including any of such applicable provisionscall premium paid in connection therewith.
Appears in 1 contract
Samples: Indenture (Post Holdings, Inc.)
