Limitation on Restricted Payments. The Company shall not, and shall not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, make any Restricted Payment if at the time of such Restricted Payment or immediately after giving effect thereto, (i) a Default or an Event of Default shall have occurred and be continuing, (ii) the Company is not able to incur at least $1.00 of additional Indebtedness other than Permitted Indebtedness in compliance with Section 4.12, or (iii) the aggregate amount of Restricted Payments including such proposed Restricted Payment made after June 30, 2006, including, the Fair Market Value as determined reasonably and in good faith by the Board of Managers of the Company of non-cash amounts constituting Restricted Payments 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 the Company earned from June 30, 2006 through the last day of the last full fiscal quarter immediately preceding 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 the Company from any Person (other than a Subsidiary of the Company) from the issuance and sale subsequent to June 30, 2006 of Qualified Capital Stock of the Company (other than Specified Venture Capital Stock) or debt securities of the Company that are, upon issuance, convertible into or exchangeable for Qualified Capital Stock of the Company, but only when and to the extent such debt securities are converted into or exchanged for Qualified Capital Stock of the Company; 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 the Company from a holder of the Company’s Capital Stock subsequent to June 30, 2006; plus (z) $400 million. Notwithstanding the foregoing, the provisions set forth in the immediately preceding paragraph shall 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) the acquisition of any shares of Capital Stock of the Company, either (i) solely in exchange for shares of Qualified Capital Stock of the Company or (ii) if no Default or Event of Default shall have occurred and be continuing, through the application of net cash proceeds of a substantially concurrent Equity Offering (other than to a Subsidiary of the Company); (3) the acquisition or repayment of any Indebtedness of the Company that is subordinate or junior in right of payment to the Notes either (i) solely in exchange for shares of Qualified Capital Stock of the Company, or (ii) if no Default or Event of Default shall have occurred and be continuing, through the application of net cash proceeds of (A) a substantially concurrent Equity Offering or (B) incurrence for cash of Refinancing Indebtedness, (in the case of (A) or (B), other than to a Subsidiary of the Company); (4) so long as no Default or Event of Default shall have occurred and be continuing, repurchases by the Company of, or dividends to a Huntsman Parent Company to permit repurchases by a Huntsman Parent Company of, Common Stock of the Company or a Huntsman Parent Company from employees of the Company or any of its Subsidiaries or their authorized representatives upon the death, disability or termination of employment of such employees, in an aggregate amount not to exceed $25 million in any calendar year; (5) the redemption or repurchase of any Common Stock of the Company held by a Restricted Subsidiary of the Company which obtained such Common Stock directly from the Company; (6) distributions to any Huntsman Parent Company in accordance with the Tax Sharing Agreement; (7) payments to any Huntsman Parent Company for legal, audit and other expenses directly relating to the administration of such Huntsman Parent Company not to exceed $10.0 million in any fiscal year; (8) the payment of consideration by a third party to equity holders of the Company; (9) additional Restricted Payments in an aggregate amount not to exceed $225 million since the Designated Date; (10) the payment of dividends or distributions to any Huntsman Parent Company which are contemporaneously applied to pay dividends on common stock of the Huntsman Public Parent at a rate not to exceed $0.40 per share per annum (such amount to be appropriately adjusted to reflect any stock split, reverse stock split, stock dividend, stock issuance or similar transactions made after the Designated Date so that the aggregate amount of dividends payable after such transaction is the same as the amount payable immediately prior to such transaction); (11) payments of dividends on Disqualified Capital Stock issued in accordance with Section 4.12; and (12) if the Consolidated Leverage Ratio of the Company, calculated after giving pro forma effect to any repurchase under this clause (12), is less than 2.5 to 1.0, then the Company may repurchase or dividend to a Huntsman Parent Company to repurchase, up to an aggregate of $250 million of Common Stock of a Huntsman Parent Company. In determining the aggregate amount of Restricted Payments made subsequent to the Designated Date in accordance with clause (iii) of the immediately preceding paragraph, cash amounts expended pursuant to clauses (1), (2), (3)(ii)(A) and (4) shall be included in such calculation and Restricted Payments made pursuant to the other clauses of this paragraph shall not be so included. Not later than the date of making any Restricted Payment pursuant to clause (iii) of the second preceding paragraph or clause (9) of the immediately preceding paragraph, the Company shall deliver to the Trustee an officers’ certificate stating that such Restricted Payment complies with this Indenture and setting forth in reasonable detail the basis upon which the required calculations were computed, which calculations may be based upon the Company’s quarterly financial statements last provided to the Trustee pursuant to Section 4.09.
Appears in 3 contracts
Samples: Agreement of Compromise and Settlement (Huntsman CORP), Indenture (Huntsman International LLC), Indenture (Huntsman CORP)
Limitation on Restricted Payments. The Company shall will not, and shall will not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, (a) declare or pay any dividend or make any distribution (other than dividends or distributions payable solely in Qualified Capital Stock of the Company) on or in respect of shares of the Company's Capital Stock to holders of such Capital Stock, (b) purchase, redeem or otherwise acquire or retire for value any Capital Stock of the Company or any warrants, rights or options to purchase or acquire shares of any class of such Capital Stock, (c) make any principal payment on, purchase, defease, redeem, prepay, decrease or otherwise acquire or retire for value, prior to any scheduled final maturity, scheduled repayment or scheduled sinking fund payment, any Indebtedness of the Company that is subordinate or junior in right of payment to the Notes or (d) make any Investment (other than Permitted Investments) (each of the foregoing actions set forth in clauses (a), (b), (c) and (d) being referred to as a "Restricted Payment Payment"), if at the time of such Restricted Payment or immediately after giving effect thereto, (i) a Default or an Event of Default shall have occurred and be continuing, (ii) the Company is not able to incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness Indebtedness) in compliance with Section 4.12, or (iii) the aggregate amount of Restricted Payments (including such proposed Restricted Payment Payment) made after subsequent to June 30, 20061999 (the amount expended for such purposes, includingif other than in cash, being the Fair Market Value fair market value of such property as determined reasonably and in good faith by the Board of Managers of the Company of non-cash amounts constituting Restricted Payments Company) shall exceed the sum of: (wx) 50% of the cumulative Consolidated Net Income (or if cumulative cumu- lative Consolidated Net Income shall be a loss, minus 100% of such loss) of the Company earned from June 30, 2006 1999 through the last day of the last full fiscal quarter immediately preceding the date the Restricted Payment occurs (the “"Reference Date”") (treating such period as a single accounting period); plus (xy) 100% of the aggregate net cash proceeds received by the Company from any Person (other than a Subsidiary of the Company) from the issuance and sale subsequent to June 30, 2006 1999 and on or prior to the Reference Date of Qualified Capital Stock of the Company (other than Specified Venture Capital Stock) or debt securities of the Company that are, upon issuance, convertible into or exchangeable for Qualified Capital Stock of the Company, but only when and to the extent such debt securities are converted into or exchanged for Qualified Capital Stock of the Company); plus (yz) without duplication of any amounts included in clause (iii)(xiii)(y) above, 100% of the aggregate net cash proceeds of any equity contribution received by the Company from a holder of the Company’s 's Capital Stock subsequent to June 30, 2006; plus (z) $400 million. Notwithstanding the foregoing, the provisions set forth in the immediately preceding paragraph shall 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) the acquisition of any shares of Capital Stock of the Company, either (i) solely in exchange for shares of Qualified Capital Stock of the Company or (ii) if no Default or Event of Default shall have occurred and be continuing, through the application of net cash proceeds of a substantially concurrent Equity Offering (other than to a Subsidiary of the Company); (3) the acquisition or repayment of any Indebtedness of the Company that is subordinate or junior in right of payment to the Notes either (i) solely in exchange for shares of Qualified Capital Stock of the Company, or (ii) if no Default or Event of Default shall have occurred and be continuing, through the application of net cash proceeds of (A) a substantially concurrent Equity Offering or (B) incurrence for cash of Refinancing Indebtedness, (in the case of (A) or (B), other than to a Subsidiary of the Company); (4) so long as no Default or Event of Default shall have occurred and be continuing, repurchases by the Company of, or dividends to a Huntsman Parent Company to permit repurchases by a Huntsman Parent Company of, Common Stock of the Company or a Huntsman Parent Company from employees of the Company or any of its Subsidiaries or their authorized representatives upon the death, disability or termination of employment of such employees, in an aggregate amount not to exceed $25 million in any calendar year; (5) the redemption or repurchase of any Common Stock of the Company held by a Restricted Subsidiary of the Company which obtained such Common Stock directly from the Company; (6) distributions to any Huntsman Parent Company in accordance with the Tax Sharing Agreement; (7) payments to any Huntsman Parent Company for legal, audit and other expenses directly relating to the administration of such Huntsman Parent Company not to exceed $10.0 million in any fiscal year; (8) the payment of consideration by a third party to equity holders of the Company; (9) additional Restricted Payments in an aggregate amount not to exceed $225 million since the Designated Date; (10) the payment of dividends or distributions to any Huntsman Parent Company which are contemporaneously applied to pay dividends on common stock of the Huntsman Public Parent at a rate not to exceed $0.40 per share per annum (such amount to be appropriately adjusted to reflect any stock split, reverse stock split, stock dividend, stock issuance or similar transactions made after the Designated Date so that the aggregate amount of dividends payable after such transaction is the same as the amount payable immediately prior to such transaction); (11) payments of dividends on Disqualified Capital Stock issued in accordance with Section 4.12; and (12) if the Consolidated Leverage Ratio of the Company, calculated after giving pro forma effect to any repurchase under this clause (12), is less than 2.5 to 1.0, then the Company may repurchase or dividend to a Huntsman Parent Company to repurchase, up to an aggregate of $250 million of Common Stock of a Huntsman Parent Company. In determining the aggregate amount of Restricted Payments made subsequent to the Designated Date in accordance with clause (iii) of the immediately preceding paragraph, cash amounts expended pursuant to clauses (1), (2), (3)(ii)(A) and (4) shall be included in such calculation and Restricted Payments made pursuant to the other clauses of this paragraph shall not be so included. Not later than the date of making any Restricted Payment pursuant to clause (iii) of the second preceding paragraph or clause (9) of the immediately preceding paragraph, the Company shall deliver to the Trustee an officers’ certificate stating that such Restricted Payment complies with this Indenture and setting forth in reasonable detail the basis upon which the required calculations were computed, which calculations may be based upon the Company’s quarterly financial statements last provided to the Trustee pursuant to Section 4.09Stock.
Appears in 2 contracts
Samples: Huntsman Texas Holdings LLC, Huntsman Texas Holdings LLC
Limitation on Restricted Payments. The Company shall not, and shall not cause or permit any of its Restricted Subsidiaries to, directly or indirectlyindirectly after the Issue Date, make any Restricted Payment if at the time of such Restricted Payment Payment, if, immediately prior or immediately after giving effect thereto, thereto (ia) a Default or an Event of Default shall have occurred and be continuingwould exist, (iib) the Company is not able Company's Annualized Operating Cash Flow Ratio for the Reference Period would exceed 8.5 to incur at least $1.00 of additional Indebtedness other than Permitted Indebtedness in compliance with Section 4.121, or (iiic) the aggregate amount of all Restricted Payments made by the Company and its Restricted Subsidiaries, including such proposed Restricted Payment (if not made after June 30in cash, 2006then the fair market value of any property used therefor, including, the Fair Market Value as determined reasonably and in good faith by the Board of Managers Directors) from and after the Issue Date and on or prior to the date of the Company of non-cash amounts constituting such Restricted Payments Payment, shall exceed the sum of: of (wi) 50% of the cumulative amount determined by subtracting (x) 2.0 times the aggregate Consolidated Net Income (or if cumulative Consolidated Net Income shall be a loss, minus 100% of such loss) Interest Expense of the Company earned for the period (taken as one accounting period) from June 30, 2006 through the Issue Date to the last day of the last full fiscal quarter immediately preceding prior to the date of the proposed Restricted Payment occurs (the “Reference Date”"Computation Period") from (treating such period as a single accounting period); y) Operating Cash Flow of the Company for the Computation Period, plus (xii) 100% of the aggregate net cash proceeds Net Proceeds (other than with respect to the PCC Equity Contribution) received by the Company from any Person the sale (other than to a Subsidiary of the Company) from the issuance and sale subsequent to June 30, 2006 of its Qualified Capital Stock after the Issue Date and on or prior to the date of the Company such Restricted Payment, plus (other than Specified Venture Capital Stockiii) or debt securities of the Company that are, upon issuance, convertible into or exchangeable for Qualified Capital Stock of the Company, but only when and to the extent such debt securities are converted into or exchanged for Qualified Capital Stock of the Company; plus (y) without duplication of any amounts not otherwise included in clause (iii)(xi) or (ii), above, 100% an amount equal to the net reduction in Investments in Unrestricted Subsidiaries resulting from payments of dividends, repayments of loans or advances, or other transfers of assets, in each case to the Company or any Wholly Owned Restricted Subsidiary of the aggregate net cash proceeds Company from Unrestricted Subsidiaries, or from redesignations of Unrestricted Subsidiaries as Restricted Subsidiaries (valued in each case as provided in the definition of "Investments"), not to exceed, in the case of any equity contribution received Unrestricted Subsidiary, the amount of Investments previously made by the Company from a holder of the Company’s Capital Stock subsequent to June 30, 2006; plus (z) $400 millionand any Restricted Subsidiary in such Unrestricted Subsidiary. Notwithstanding the foregoing, the provisions set forth in clause (b) or (c) of the immediately preceding paragraph shall will not prohibit: prohibit (1i) the use of an aggregate of $10,000,000 for Restricted Payments not otherwise permitted by this Section 4.04, (ii) the distribution of amounts to Holdings sufficient to pay the scheduled interest or dividends, as applicable, owed by Holdings on the Holdings Securities as such interest or dividends become due and payable and so long as (A) Holdings is the direct Parent of the Company owning 100% of the capital stock of the Company, and (B) such Holdings Securities contain no scheduled requirement for the payment of cash interest or dividends, as applicable, until at least five years from the date of their original issuance and (iii) any dividend, distribution or other payment by any Restricted Subsidiary on shares of its Capital Stock that is paid pro rata to all holders of such Capital Stock, and notwithstanding the foregoing paragraph, the provisions set forth in clause (a), (b) or (c) of the immediately preceding paragraph will not prohibit (iv) the payment of any dividend within 60 days after the date of its declaration of if such dividend if the dividend would could have been permitted made on the date of declaration; its declaration in compliance with the foregoing provisions, or (2v) the redemption, defeasance, repurchase or other acquisition or retirement of any shares of Capital Stock of the Company, either (i) solely in exchange for shares of Qualified Indebtedness or Capital Stock of the Company or (ii) if no Default its Restricted Subsidiaries either in exchange for or Event out of Default shall have occurred and be continuing, through the application Net Proceeds of net cash proceeds of a the substantially concurrent Equity Offering sale (other than to a Subsidiary of the Company); ) of Qualified Capital Stock (3) in the case of any redemption, defeasance, repurchase or other acquisition or repayment retirement of any Junior Indebtedness or Capital Stock of the Company or its Restricted Subsidiaries) or Junior Indebtedness (in the case of any redemption, defeasance, repurchase or other acquisition or retirement of any Indebtedness of the Company that is subordinate or junior in right of payment to the Notes either (iits Restricted Subsidiaries) solely in exchange for shares of Qualified Capital Stock of the Company, or (ii) if no Default or Event of Default shall have occurred and be continuing, through the application of net cash proceeds of (A) a substantially concurrent Equity Offering or (B) incurrence for cash of Refinancing Indebtedness, (in the case of (A) or (B), other than to a Subsidiary of the Company); (4) so long as no Default or Event of Default shall have occurred and be continuing, repurchases by the Company of, or dividends to a Huntsman Parent Company to permit repurchases by a Huntsman Parent Company of, Common Stock of the Company or a Huntsman Parent Company from employees of the Company or any of its Subsidiaries or their authorized representatives upon the death, disability or termination of employment of such employees, in an aggregate amount not to exceed $25 million in any calendar year; (5) the redemption or repurchase of any Common Stock of the Company held by a Restricted Subsidiary of the Company which obtained such Common Stock directly from the Company; (6) distributions to any Huntsman Parent Company in accordance with the Tax Sharing Agreement; (7) payments to any Huntsman Parent Company for legal, audit and other expenses directly relating to the administration of such Huntsman Parent Company not to exceed $10.0 million in any fiscal year; (8) the payment of consideration by a third party to equity holders of the Company; (9) additional Restricted Payments in an aggregate amount not to exceed $225 million since the Designated Date; (10) the payment of dividends or distributions to any Huntsman Parent Company which are contemporaneously applied to pay dividends on common stock of the Huntsman Public Parent at a rate not to exceed $0.40 per share per annum (such amount to be appropriately adjusted to reflect any stock split, reverse stock split, stock dividend, stock issuance or similar transactions made after the Designated Date so that the aggregate amount of dividends payable after such transaction is the same as the amount payable immediately prior to such transaction); (11) payments of dividends on Disqualified Capital Stock issued in accordance with Section 4.12; and (12) if the Consolidated Leverage Ratio of the Company, calculated after giving pro forma effect to any repurchase under this clause (12), is less than 2.5 to 1.0, then the Company may repurchase or dividend to a Huntsman Parent Company to repurchase, up to an aggregate of $250 million of Common Stock of a Huntsman Parent Company. In determining the aggregate amount of expended for Restricted Payments made subsequent to the Designated Date in accordance with clause (iiic) of the first paragraph of this Section 4.04, 100% of the amounts expended under clauses (i) through (v) of the immediately preceding paragraph, cash amounts expended pursuant to clauses (1), (2), (3)(ii)(A) and (4) paragraph shall be included in such calculation and Restricted Payments made pursuant to the other clauses of this paragraph shall not be so includeddeducted. Not later than the date of making any Restricted Payment pursuant to clause (iii) None of the second preceding paragraph or clause (9transactions described in Section 4.01(b) of the immediately preceding paragraphabove, the Company shall deliver to the Trustee an officers’ certificate stating that such Restricted Payment complies with be taken into account in any calculation under this Indenture and setting forth in reasonable detail the basis upon which the required calculations were computed, which calculations may be based upon the Company’s quarterly financial statements last provided to the Trustee pursuant to Section 4.094.04.
Appears in 2 contracts
Samples: Price Communications Wireless Inc, Price Communications Corp
Limitation on Restricted Payments. The Company shall not, and shall not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, (a) declare or pay any dividend or make any distribution (other than dividends or distributions payable in Qualified Capital Stock of the Company) on or in respect of shares of the Company's Capital Stock to holders of such Capital Stock, (b) purchase, redeem or otherwise acquire or retire for value any Capital Stock of the Company or any warrants, rights or op- tions to purchase or acquire shares of any class of such Capital Stock, or (c) make any Restricted Payment Investment (each of the foregoing actions set forth in clauses (a), (b) and (c) being referred to as a "Restricted Payment"), if at the time of such Restricted Payment or immediately after giving effect thereto, (i) a Default or an Event of Default shall have occurred and be continuing, (ii) the Company is not able to incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness Indebtedness) in compliance with Section 4.12, or (iii) the aggregate amount of Restricted Payments including such proposed Restricted Payment made after June 30, 2006, including, subsequent to the Fair Market Value as determined reasonably and in good faith by the Board of Managers of the Company of non-cash amounts constituting Restricted Payments Issue Date 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 the Company earned from June 30, 2006 through subsequent to the last day of the last full fiscal quarter immediately preceding Issue Date and on or 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 the Company (including the fair market value of property other than cash) from any Person (other than a Subsidiary of the Company) from the issuance and sale subsequent to June 30, 2006 the Issue Date and on or prior to the Reference Date of Qualified Capital Stock of the Company (other than Specified Venture Capital Stock) or debt securities of the Company that are, upon issuance, convertible into or exchangeable for Qualified including Capital Stock issued upon the conversion of the Company, but only when and to the extent such debt securities are converted into convertible Indebtedness or exchanged in exchange for Qualified Capital Stock of the Companyoutstanding Indebtedness); plus (y) without duplication of any amounts included in clause (iii)(x) above, 100% of the aggregate net cash proceeds (including the fair market value of property other than cash) of any equity contribution received by the Company from a holder of the Company’s 's Capital Stock subsequent (excluding any net proceeds from an Equity Offering to June 30, 2006; the extent used to redeem Notes in accordance with the optional redemption provisions of the Notes) plus (z) $400 million100% of the aggregate net proceeds (including the fair market value of property other than cash) of any (i) sale or other disposition of Restricted Investments made by the Company and its Restricted Subsidiaries or (ii) dividend from, or the sale of the stock of, an Unrestricted Subsidiary. Notwithstanding the foregoing, the provisions set forth in the immediately preceding paragraph shall do not prohibit: (1) the payment of any dividend or the consummation of any irrevocable redemption within 60 days after the date of declaration of such dividend or notice of such redemption if the dividend or payment of the redemption price, as the case may be, would have been permitted on the date of declarationdeclaration or notice; (2) if no Event of Default shall have occurred and be continuing as a consequence thereof, the acquisition of any shares of Capital Stock of the CompanyCompany (the "Retired Capital Stock"), either (i) solely in exchange for shares of Qualified Capital Stock of the Company or (ii) if no Default or Event of Default shall have occurred and be continuing, through the application of net cash proceeds of a substantially concurrent Equity Offering (other than to a Subsidiary of the Company); (3) the acquisition or repayment of any Indebtedness of the Company that is subordinate or junior in right of payment to the Notes either (i) solely in exchange for shares of Qualified "Refunding Capital Stock of the Company, or (ii) if no Default or Event of Default shall have occurred and be continuing, through the application of net cash proceeds of (A) a substantially concurrent Equity Offering or (B) incurrence for cash of Refinancing Indebtedness, (in the case of (A) or (BStock"), other than to a Subsidiary of the Company); (4) so long as no Default or Event of Default shall have occurred and be continuing, repurchases by the Company of, or dividends to a Huntsman Parent Company to permit repurchases by a Huntsman Parent Company of, Common Stock of the Company or a Huntsman Parent Company from employees of the Company or any of its Subsidiaries or their authorized representatives upon the death, disability or termination of employment of such employees, in an aggregate amount not to exceed $25 million in any calendar year; (5) the redemption or repurchase of any Common Stock of the Company held by a Restricted Subsidiary of the Company which obtained such Common Stock directly from the Company; (6) distributions to any Huntsman Parent Company in accordance with the Tax Sharing Agreement; (7) payments to any Huntsman Parent Company for legal, audit and other expenses directly relating to the administration of such Huntsman Parent Company not to exceed $10.0 million in any fiscal year; (8) the payment of consideration by a third party to equity holders of the Company; (9) additional Restricted Payments in an aggregate amount not to exceed $225 million since the Designated Date; (10) the payment of dividends or distributions to any Huntsman Parent Company which are contemporaneously applied to pay dividends on common stock of the Huntsman Public Parent at a rate not to exceed $0.40 per share per annum (such amount to be appropriately adjusted to reflect any stock split, reverse stock split, stock dividend, stock issuance or similar transactions made after the Designated Date so that the aggregate amount of dividends payable after such transaction is the same as the amount payable immediately prior to such transaction); (11) payments of dividends on Disqualified Capital Stock issued in accordance with Section 4.12; and (12) if the Consolidated Leverage Ratio of the Company, calculated after giving pro forma effect to any repurchase under this clause (12), is less than 2.5 to 1.0, then the Company may repurchase or dividend to a Huntsman Parent Company to repurchase, up to an aggregate of $250 million of Common Stock of a Huntsman Parent Company. In determining the aggregate amount of Restricted Payments made subsequent to the Designated Date in accordance with clause (iii) of the immediately preceding paragraph, cash amounts expended pursuant to clauses (1), (2), (3)(ii)(A) and (4) shall be included in such calculation and Restricted Payments made pursuant to the other clauses of this paragraph shall not be so included. Not later than the date of making any Restricted Payment pursuant to clause (iii) of the second preceding paragraph or clause (9) of the immediately preceding paragraph, the Company shall deliver to the Trustee an officers’ certificate stating that such Restricted Payment complies with this Indenture and setting forth in reasonable detail the basis upon which the required calculations were computed, which calculations may be based upon the Company’s quarterly financial statements last provided to the Trustee pursuant to Section 4.09.or
Appears in 2 contracts
Samples: Registration Rights Agreement (Therma Wave Inc), Registration Rights Agreement (Therma Wave Inc)
Limitation on Restricted Payments. (a) The Company shall will not, and shall will not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, make any Restricted Payment if Payment, unless at the time of such Restricted Payment or immediately and after giving effect theretoto the proposed Restricted Payment, (i) a Default or an Event of no Default shall have occurred and be continuingcontinuing (or would immediately result therefrom), (ii) the Company is not able to could incur at least $1.00 of additional Indebtedness other than Permitted Indebtedness under the tests described in compliance with the first sentence of Section 4.12, or 4.03 of this Indenture and (iii) the aggregate amount of all Restricted Payments including such proposed Restricted Payment declared or made on or after June 30, 2006, including, the Fair Market Value as determined reasonably and in good faith Issue Date by the Board of Managers of the Company of non-cash amounts constituting Restricted Payments or any Subsidiary shall not exceed the sum of: of (wA) 50% of the cumulative Consolidated Net Income (or if cumulative such Consolidated Net Income shall be a lossdeficit, minus 100% of such lossdeficit) of the Company earned from June 30, 2006 through aggregate Consolidated Net Income accrued during the period beginning on the first day of the fiscal quarter in which the Issue Date falls and ending on the last day of the last full fiscal quarter for which internal financial statements are available ending immediately preceding prior to the date the of such proposed Restricted Payment occurs (the “Reference Date”) (treating such period as a single accounting period); plus (x) Payment, minus 100% of the amount of any writedowns, write-offs and other negative extraordinary charges not otherwise reflected in Consolidated Net Income during such period, plus (B) an amount equal to the aggregate net cash proceeds received by the Company from any Person (other than a Subsidiary of Company, subsequent to the Company) Issue Date, from the issuance and or sale subsequent to June 30, 2006 of Qualified Capital Stock of the Company (other than Specified Venture Capital Stock) or debt securities of the Company that are, upon issuance, convertible into or exchangeable for Qualified Capital Stock of the Company, but only when and to the extent such debt securities are converted into or exchanged for Qualified Capital Stock of the Company; 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 the Company from a holder of the Company’s Capital Stock subsequent to June 30, 2006; plus (z) $400 million. Notwithstanding the foregoing, the provisions set forth in the immediately preceding paragraph shall 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) the acquisition of any shares of Capital Stock of the Company, either (i) solely in exchange for shares of Qualified Capital Stock of the Company or (ii) if no Default or Event of Default shall have occurred and be continuing, through the application of net cash proceeds of a substantially concurrent Equity Offering (other than to a Subsidiary Subsidiary) of shares of its Capital Stock (excluding Redeemable Stock, but including Capital Stock issued upon the exercise of options, warrants or rights to purchase Capital Stock (other than Redeemable Stock) of the Company); ) and the liability (3expressed as a positive number) as expressed on the acquisition or repayment face of a balance sheet in accordance with GAAP in respect of any Indebtedness of the Company that is subordinate or junior in right of payment to the Notes either (i) solely in exchange for shares of Qualified Capital Stock of the Company, or (ii) if no Default or Event of Default shall have occurred and be continuing, through the application of net cash proceeds of (A) a substantially concurrent Equity Offering or (B) incurrence for cash of Refinancing Indebtedness, (in the case of (A) or (B), other than to a Subsidiary of the Company); (4) so long as no Default or Event of Default shall have occurred and be continuing, repurchases by the Company of, or dividends to a Huntsman Parent Company to permit repurchases by a Huntsman Parent Company of, Common Stock of the Company or a Huntsman Parent Company from employees of the Company or any of its Subsidiaries Subsidiaries, or their authorized representatives upon the deathcarrying value of Redeemable Stock, disability which has been converted into, exchanged for or termination satisfied by the issuance of employment shares of such employees, in an aggregate amount not to exceed $25 million in any calendar year; (5) the redemption or repurchase of any Common Stock of the Company held by a Restricted Subsidiary of the Company which obtained such Common Stock directly from the Company; (6) distributions to any Huntsman Parent Company in accordance with the Tax Sharing Agreement; (7) payments to any Huntsman Parent Company for legal, audit and other expenses directly relating to the administration of such Huntsman Parent Company not to exceed $10.0 million in any fiscal year; (8) the payment of consideration by a third party to equity holders of the Company; (9) additional Restricted Payments in an aggregate amount not to exceed $225 million since the Designated Date; (10) the payment of dividends or distributions to any Huntsman Parent Company which are contemporaneously applied to pay dividends on common stock of the Huntsman Public Parent at a rate not to exceed $0.40 per share per annum (such amount to be appropriately adjusted to reflect any stock split, reverse stock split, stock dividend, stock issuance or similar transactions made after the Designated Date so that the aggregate amount of dividends payable after such transaction is the same as the amount payable immediately prior to such transaction); (11) payments of dividends on Disqualified Capital Stock issued in accordance with Section 4.12; and (12other than Redeemable Stock) if the Consolidated Leverage Ratio of the Company, calculated after giving pro forma effect subsequent to the Issue Date, plus (C) 100% of the net reduction in Restricted Investments, subsequent to the Issue Date, in any repurchase under this clause Person, resulting from payments of interest on Indebtedness, dividends, repayments of loans or advances, or other transfers of Property (12but only to the extent such interest, dividends, repayments or other transfers of Property are not included in the calculation of Consolidated Net Income), is less than 2.5 in each case to 1.0, then the Company may repurchase or dividend any Subsidiary from any Person (including, without limitation, from Unrestricted Subsidiaries) or from redesignations of Unrestricted Subsidiaries as Subsidiaries (valued in each case as provided in the definition of "Investments"), not to a Huntsman Parent Company to repurchase, up to an aggregate exceed in the case of $250 million of Common Stock of a Huntsman Parent Company. In determining any Person the aggregate amount of Restricted Payments Investments previously made subsequent to by the Designated Date in accordance with clause (iii) of the immediately preceding paragraph, cash amounts expended pursuant to clauses (1), (2), (3)(ii)(A) and (4) shall be included Company or any Subsidiary in such calculation Person and in each such case which was treated as a Restricted Payments made pursuant to the other clauses of this paragraph shall not be so included. Not later than the date of making any Restricted Payment pursuant to clause (iii) of the second preceding paragraph or clause (9) of the immediately preceding paragraphPayment, the Company shall deliver to the Trustee an officers’ certificate stating that such Restricted Payment complies with this Indenture and setting forth in reasonable detail the basis upon which the required calculations were computed, which calculations may be based upon the Company’s quarterly financial statements last provided to the Trustee pursuant to Section 4.09plus $10,000,000.
Appears in 2 contracts
Samples: Trend Drilling Co, Nabors Industries Inc
Limitation on Restricted Payments. (a) The Company shall will not, and shall will not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, make any Restricted Payment if Payment, unless at the time of such Restricted Payment or immediately and after giving effect theretoto the proposed Restricted Payment, (i) a Default or an Event of no Default shall have occurred and be continuingcontinuing (or would result therefrom), (ii) the Company is not able to could incur at least $1.00 of additional Indebtedness other than Permitted Indebtedness under the tests described in compliance with the first sentence of Section 4.12, or 4.03 of this Indenture and (iii) the aggregate amount of all Restricted Payments including such proposed Restricted Payment declared or made on or after June 30, 2006, including, the Fair Market Value as determined reasonably and in good faith Issue Date by the Board of Managers of the Company of non-cash amounts constituting Restricted Payments or any Subsidiary shall not exceed the sum of: of (wA) 50% of the cumulative Consolidated Net Income (or if cumulative such Consolidated Net Income shall be a lossdeficit, minus 100% of such lossdeficit) of the Company earned from June 30, 2006 through aggregate Consolidated Net Income accrued during the period beginning on the first day of the fiscal quarter in which the Issue Date falls and ending on the last day of the last full fiscal quarter ending immediately preceding prior to the date the of such proposed Restricted Payment occurs (the “Reference Date”) (treating such period as a single accounting period); plus (x) Payment, minus 100% of the amount of any writedowns, write-offs and other negative extraordinary charges not otherwise reflected in Consolidated Net Income during such period, plus (B) an amount equal to the aggregate net cash proceeds received by the Company from any Person (other than a Subsidiary of Company, subsequent to the Company) Issue Date, from the issuance and or sale subsequent to June 30, 2006 of Qualified Capital Stock of the Company (other than Specified Venture Capital Stock) or debt securities of the Company that are, upon issuance, convertible into or exchangeable for Qualified Capital Stock of the Company, but only when and to the extent such debt securities are converted into or exchanged for Qualified Capital Stock of the Company; 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 the Company from a holder of the Company’s Capital Stock subsequent to June 30, 2006; plus (z) $400 million. Notwithstanding the foregoing, the provisions set forth in the immediately preceding paragraph shall 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) the acquisition of any shares of Capital Stock of the Company, either (i) solely in exchange for shares of Qualified Capital Stock of the Company or (ii) if no Default or Event of Default shall have occurred and be continuing, through the application of net cash proceeds of a substantially concurrent Equity Offering (other than to a Subsidiary Subsidiary) of shares of its Capital Stock (excluding Redeemable Stock, but including Capital Stock issued upon the exercise of options, warrants or rights to purchase Capital Stock (other than Redeemable Stock) of the Company); ) and the liability (3expressed as a positive number) as expressed on the acquisition or repayment face of a balance sheet in accordance with GAAP in respect of any Indebtedness of the Company that is subordinate or junior in right of payment to the Notes either (i) solely in exchange for shares of Qualified Capital Stock of the Company, or (ii) if no Default or Event of Default shall have occurred and be continuing, through the application of net cash proceeds of (A) a substantially concurrent Equity Offering or (B) incurrence for cash of Refinancing Indebtedness, (in the case of (A) or (B), other than to a Subsidiary of the Company); (4) so long as no Default or Event of Default shall have occurred and be continuing, repurchases by the Company of, or dividends to a Huntsman Parent Company to permit repurchases by a Huntsman Parent Company of, Common Stock of the Company or a Huntsman Parent Company from employees of the Company or any of its Subsidiaries Subsidiaries, or their authorized representatives upon the deathcarrying value of Redeemable Stock, disability which has been converted into, exchanged for or termination satisfied by the issuance of employment shares of such employees, in an aggregate amount not to exceed $25 million in any calendar year; (5) the redemption or repurchase of any Common Stock of the Company held by a Restricted Subsidiary of the Company which obtained such Common Stock directly from the Company; (6) distributions to any Huntsman Parent Company in accordance with the Tax Sharing Agreement; (7) payments to any Huntsman Parent Company for legal, audit and other expenses directly relating to the administration of such Huntsman Parent Company not to exceed $10.0 million in any fiscal year; (8) the payment of consideration by a third party to equity holders of the Company; (9) additional Restricted Payments in an aggregate amount not to exceed $225 million since the Designated Date; (10) the payment of dividends or distributions to any Huntsman Parent Company which are contemporaneously applied to pay dividends on common stock of the Huntsman Public Parent at a rate not to exceed $0.40 per share per annum (such amount to be appropriately adjusted to reflect any stock split, reverse stock split, stock dividend, stock issuance or similar transactions made after the Designated Date so that the aggregate amount of dividends payable after such transaction is the same as the amount payable immediately prior to such transaction); (11) payments of dividends on Disqualified Capital Stock issued in accordance with Section 4.12; and (12other than Redeemable Stock) if the Consolidated Leverage Ratio of the Company, calculated after giving pro forma effect to any repurchase under this clause (12), is less than 2.5 to 1.0, then the Company may repurchase or dividend to a Huntsman Parent Company to repurchase, up to an aggregate of $250 million of Common Stock of a Huntsman Parent Company. In determining the aggregate amount of Restricted Payments made subsequent to the Designated Date in accordance with clause Issue Date, plus (iiiC) 100% of the immediately preceding paragraphnet reduction in Restricted Investments, cash amounts expended pursuant to clauses (1), (2), (3)(ii)(A) and (4) shall be included in such calculation and Restricted Payments made pursuant subsequent to the other clauses Issue Date, in any Person, resulting from payments of this paragraph shall not be so included. Not later than the date of making any Restricted Payment pursuant to clause (iii) of the second preceding paragraph or clause (9) of the immediately preceding paragraphinterest on Indebtedness, the Company shall deliver to the Trustee an officers’ certificate stating that such Restricted Payment complies with this Indenture and setting forth in reasonable detail the basis upon which the required calculations were computed, which calculations may be based upon the Company’s quarterly financial statements last provided to the Trustee pursuant to Section 4.09.dividends,
Appears in 2 contracts
Samples: Supplemental Indenture (Grey Wolf Inc), Di Industries Inc
Limitation on Restricted Payments. The Company Issuers shall not, and shall not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, make any Restricted Payment if at the time of such Restricted Payment or immediately after giving effect theretoPayment. The preceding paragraph, (i) a Default or an Event of Default shall have occurred and be continuinghowever, (ii) the Company is not able to incur at least $1.00 of additional Indebtedness other than Permitted Indebtedness in compliance with Section 4.12, or (iii) the aggregate amount of Restricted Payments including such proposed Restricted Payment made after June 30, 2006, including, the Fair Market Value as determined reasonably and in good faith by the Board of Managers of the Company of non-cash amounts constituting Restricted Payments 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 the Company earned from June 30, 2006 through the last day of the last full fiscal quarter immediately preceding 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 the Company from any Person (other than a Subsidiary of the Company) from the issuance and sale subsequent to June 30, 2006 of Qualified Capital Stock of the Company (other than Specified Venture Capital Stock) or debt securities of the Company that are, upon issuance, convertible into or exchangeable for Qualified Capital Stock of the Company, but only when and to the extent such debt securities are converted into or exchanged for Qualified Capital Stock of the Company; 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 the Company from a holder of the Company’s Capital Stock subsequent to June 30, 2006; plus (z) $400 million. Notwithstanding the foregoing, the provisions set forth in the immediately preceding paragraph shall not prohibit: prohibit (1a) the payment of any dividend within 60 days after Permitted Quarterly Tax Distributions to the date of declaration of such dividend if the dividend would have been permitted on the date of declaration; (2) the acquisition of any shares of Capital Stock of the Company, either (i) solely in exchange for shares of Qualified Capital Stock members of the Company as described below; (b) the dividend of $37.05 million from the net proceeds of the Offering and cash on hand upon consummation of the Offering to Waterford Group in accordance with the "Use of Proceeds" section of the Offering Memorandum; or (iic) if following all applicable Required IRA True-up Payments and provided that no Default or Event of Default shall have has occurred and be is continuing, through (i) in the application event the Company, in one or a series of net cash proceeds of a substantially concurrent Equity Offering (other than to a Subsidiary related transactions, conveys, sells, transfers, assigns, tenders for redemption or otherwise disposes of, directly or indirectly, all of the Company); (3) Mohegan Notes held by the acquisition or repayment of any Indebtedness Company to an entity which is not an affiliate of the Company that is subordinate or junior in right (a "Mohegan Note Transfer") and the Company has complied with the terms of payment the Security and Control Agreement with respect to the Notes either (i) solely in exchange for shares of Qualified Capital Stock proceeds thereof, a dividend by the Company to Waterford Group of the Company, or Mohegan Note Transfer Proceeds in excess of $15.0 million; (ii) if no Default or Event of Default shall have occurred and be continuing, through the application of net cash proceeds of a Permitted Dividend; (Aiii) a substantially concurrent Equity Group Flow-Through Payment; (iv) the purchase of the Old Notes pursuant to the Tender Offer in accordance with the "Use of Proceeds" section of the Offering Memorandum, provided that proceeds from the Offering sufficient to effect such purchase are set aside for such purchase; (v) Investments in the Manager to fund actual costs of the Manager related to its role as developer of the expansion of the Mohegan Sun provided that the amount of such Investment will increase future distributions to the Company by the same amount by offsetting costs of the Manager that would otherwise reduce cash available for distributions to the Company; provided that the net unreturned Investment under this clause (v) does not exceed $1.0 million outstanding at any one time; or (Bvi) incurrence for cash return of Refinancing Indebtedness, (capital to Waterford Group from a return of capital from the Manager in the case respect of (A) or (B), other than to a Subsidiary capital contribution of the Company); type described in clause (4v) funded by a Group Flow-Through Payment from Waterford Group, provided that no Investment under clause (v) remains outstanding and that no Investment under this clause (vi) shall exceed the corresponding Group Flow-Through Payment. For so long as no Default or Event of Default shall have occurred and be continuing, repurchases by the Company ofis a partnership or substantially similar pass-through entity for federal income tax purposes, or dividends to a Huntsman Parent Company to permit repurchases by a Huntsman Parent Company of, Common Stock of the Company or a Huntsman Parent Company may make cash distributions to its members out of available cash after payment of any accrued and unpaid interest on the Securities (taking into account that interest on the Securities may be paid from employees of amounts in the Company or any of its Subsidiaries or their authorized representatives upon the death, disability or termination of employment of such employeesInterest Reserve Account) during each Quarterly Payment Period, in an aggregate amount not to exceed $25 million the Permitted Quarterly Tax Distribution in respect of the related Estimation Period. If any calendar portion of a Permitted Quarterly Tax Distribution is not distributed during such Quarterly Payment Period, the Permitted Quarterly Tax Distribution payable during the immediately following Quarterly Payment Period shall be increased by such undistributed portion. If, for any particular taxable year; , the Company is treated as an entity that is "disregarded" as an entity separate from its owner for federal income tax purposes, then, for such particular taxable year, (5a) the redemption all references to "partnership or repurchase of any Common Stock substantially similar pass-through entity" in respect of the Company held by shall include an entity that is a Restricted Subsidiary "disregarded" entity for federal income tax purposes, (b) all references to "Internal Revenue Service Form 1065" in respect of the Company which obtained such Common Stock directly from the Company; (6) distributions shall mean a hypothetical Internal Revenue Service Form 1065 that is to any Huntsman Parent Company in accordance with be prepared by the Tax Sharing Agreement; Amounts CPA taking into account such items of income, gain, deduction, loss, credits and similar items (7"Company Tax Items") payments to any Huntsman Parent that would have been taken into account had the Company been treated as a "partnership" rather than a "disregarded" entity, for legalfederal income tax purposes, audit and other expenses directly relating as such hypothetical Form 1065 may be subsequently adjusted by an Adjustment Event with respect to the administration of such Huntsman Parent Company not to exceed $10.0 million in any fiscal year; (8) the payment of consideration by a third party to equity holders federal income tax return of the Company; owner of the Company to the extent such Adjustment Event relates to Company Tax Items, and (9) additional Restricted Payments in an aggregate amount not to exceed $225 million since the Designated Date; (10c) the payment of dividends or distributions to any Huntsman Parent Company which are contemporaneously applied to pay dividends on common stock of Tax Amount and the Huntsman Public Parent at a rate not to exceed $0.40 per share per annum (such amount to True-up Amount shall be appropriately adjusted to reflect any stock split, reverse stock split, stock dividend, stock issuance or similar transactions made after the Designated Date so that the aggregate amount of dividends payable after such transaction is the same determined as the amount payable immediately prior to such transaction); (11) payments of dividends on Disqualified Capital Stock issued in accordance with Section 4.12; and (12) if the Consolidated Leverage Ratio of the CompanyCompany were treated as a "partnership," rather than a "disregarded" entity, calculated after giving pro forma effect to any repurchase under this clause (12), is less than 2.5 to 1.0, then the Company may repurchase or dividend to a Huntsman Parent Company to repurchase, up to an aggregate of $250 million of Common Stock of a Huntsman Parent Company. In determining the aggregate amount of Restricted Payments made subsequent to the Designated Date in accordance with clause (iii) of the immediately preceding paragraph, cash amounts expended pursuant to clauses (1), (2), (3)(ii)(A) and (4) shall be included in such calculation and Restricted Payments made pursuant to the other clauses of this paragraph shall not be so included. Not later than the date of making any Restricted Payment pursuant to clause (iii) of the second preceding paragraph or clause (9) of the immediately preceding paragraph, the Company shall deliver to the Trustee an officers’ certificate stating that such Restricted Payment complies with this Indenture and setting forth in reasonable detail the basis upon which the required calculations were computed, which calculations may be based upon the Company’s quarterly financial statements last provided to the Trustee pursuant to Section 4.09for federal income tax purposes.
Appears in 2 contracts
Samples: Financing Agreement (Waterford Gaming LLC), Financing Agreement (Waterford Gaming Finance Corp)
Limitation on Restricted Payments. The Company shall not, and shall not cause or permit any of its Restricted their Subsidiaries to, directly or indirectly, make any Restricted Payment if at the time of such Restricted Payment or immediately Payment, if, after giving effect theretothereto on a pro forma basis, (ia) a Default or an Event of Default shall have occurred and be continuing, (iib) the Company is not able permitted to incur at least $1.00 of additional Indebtedness other than Permitted Indebtedness pursuant to the Consolidated Interest Coverage Ratio in compliance with Section 4.12, 4.11(a) or (iiic) the aggregate amount of all Restricted Payments made by the Company and its Subsidiaries, including after giving effect to such proposed Restricted Payment made Payment, from and after June 30the Issue Date, 2006, including, the Fair Market Value as determined reasonably and in good faith by the Board of Managers of the Company of non-cash amounts constituting Restricted Payments shall would exceed the sum of: of (wi) $2,500,000, plus (ii) 50% of the cumulative aggregate Consolidated Net Income of the Company for the period (or if cumulative taken as one accounting period), commencing on the first day of the first full fiscal quarter commencing after the Issue Date, to and including the last day of the fiscal quarter ended immediately prior to the date of each such calculation (or, in the event Consolidated Net Income shall be for such period is a lossdeficit, then minus 100% of such loss) of the Company earned from June 30deficit), 2006 through the last day of the last full fiscal quarter immediately preceding the date the Restricted Payment occurs (the “Reference Date”) (treating such period as a single accounting period); plus (xiii) 100% of the aggregate net cash proceeds Net Cash Proceeds received by the Company and not applied in connection with a Qualified Exchange from any Person the issue or sale after the Issue Date of its Qualified Capital Stock or its debt securities that have been converted into Qualified Capital Stock (other than a Subsidiary of the Company) from the issuance and an issue or sale subsequent to June 30, 2006 of Qualified Capital Stock of the Company (other than Specified Venture Capital Stock) or debt securities of the Company that are, upon issuance, convertible into or exchangeable for Qualified Capital Stock of the Company, but only when and to the extent such debt securities are converted into or exchanged for Qualified Capital Stock of the Company; 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 the Company from a holder of the Company’s Capital Stock subsequent to June 30, 2006; plus (z) $400 million. Notwithstanding the foregoing, the provisions set forth in the immediately preceding paragraph shall 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) the acquisition of any shares of Capital Stock of the Company, either (i) solely in exchange for shares of Qualified Capital Stock of the Company or (ii) if no Default or Event of Default shall have occurred and be continuing, through the application of net cash proceeds of a substantially concurrent Equity Offering (other than to a Subsidiary of the Company); (3) , including the acquisition or repayment of any Indebtedness of the Company that is subordinate or junior in right of payment to the Notes either (i) solely in exchange for shares of Qualified Capital Stock of the Company, or (ii) if no Default or Event of Default shall have occurred and be continuing, through the application of net cash proceeds of (A) a substantially concurrent Equity Offering or (B) incurrence for cash of Refinancing Indebtedness, (in the case of (A) or (B), other than to a Subsidiary of the Company); (4) so long as no Default or Event of Default shall have occurred and be continuing, repurchases Net Cash Proceeds received by the Company ofupon the exercise, exchange or dividends to a Huntsman Parent Company to permit repurchases conversion of such securities into Qualified Capital Stock), plus (iv) the Net Cash Proceeds received by a Huntsman Parent Company of, Common Stock of the Company or a Huntsman Parent Company from employees of the Company or any of its Subsidiaries from its investment in, and the sale, disposition or their authorized representatives upon the deathother liquidation of, disability or termination of employment of such employees, in an aggregate amount not to exceed $25 million in any calendar year; (5) the redemption or repurchase of any Common Stock of the Company held by a Restricted Subsidiary of the Company which obtained such Common Stock directly from the Company; (6) distributions to any Huntsman Parent Company in accordance with the Tax Sharing Agreement; (7) payments to any Huntsman Parent Company for legal, audit and other expenses directly relating to the administration of such Huntsman Parent Company not to exceed $10.0 million in any fiscal year; (8) the payment of consideration by a third party to equity holders of the Company; (9) additional Restricted Payments in an aggregate amount not to exceed $225 million since the Designated Date; (10) the payment of dividends or distributions to any Huntsman Parent Company which are contemporaneously applied to pay dividends on common stock of the Huntsman Public Parent at a rate not to exceed $0.40 per share per annum (such amount to be appropriately adjusted to reflect any stock split, reverse stock split, stock dividend, stock issuance or similar transactions made after the Designated Date so that the aggregate amount of dividends payable after such transaction is the same as the amount payable immediately prior to such transaction); (11) payments of dividends on Disqualified Capital Stock issued in accordance with Section 4.12; and (12) if the Consolidated Leverage Ratio of the Company, calculated after giving pro forma effect to any repurchase under this clause (12), is less than 2.5 to 1.0, then the Company may repurchase or dividend to a Huntsman Parent Company to repurchase, up to an aggregate of $250 million of Common Stock of a Huntsman Parent Company. In determining the aggregate amount of Restricted Payments made subsequent to the Designated Date in accordance with clause (iii) of the immediately preceding paragraph, cash amounts expended pursuant to clauses (1), (2), (3)(ii)(A) and (4) shall be included in such calculation and Restricted Payments made pursuant to the other clauses of this paragraph shall not be so included. Not later than the date of making any Restricted Payment pursuant to clause (iii) of the second preceding paragraph or clause (9) of the immediately preceding paragraph, the Company shall deliver to the Trustee an officers’ certificate stating that such Restricted Payment complies with this Indenture and setting forth in reasonable detail the basis upon which the required calculations were computed, which calculations may be based upon the Company’s quarterly financial statements last provided to the Trustee pursuant to Section 4.09Investment.
Appears in 2 contracts
Samples: Indenture (HPSC Inc), HPSC Inc
Limitation on Restricted Payments. The Company shall not, and shall not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, make any Restricted Payment if Payment, unless (i) at the time of such Restricted Payment or and immediately after giving effect theretoto the proposed Restricted Payment, (i) a no Default or an Event of Default with respect to any series of Securities shall have occurred and be continuing, or would occur as a consequence thereof, (ii) the Company is not able would be permitted to incur at least $1.00 of additional Indebtedness other than Permitted Indebtedness pursuant to the Consolidated Operating Cash Flow Ratio test set forth in compliance with Section 4.129.10, or and (iii) at the aggregate amount time of Restricted Payments including such and immediately after giving effect to the proposed Restricted Payment made after June 30(the value of any such payment if other than cash, 2006, including, the Fair Market Value as determined reasonably and in good faith by the Board board of Managers directors of the Company and evidenced by a Board Resolution), the aggregate amount of non-cash amounts constituting all Restricted Payments (including Restricted Payments permitted by clauses (b) and (e) of the next succeeding paragraph and excluding the other Restricted Payments permitted by such paragraph) declared or made subsequent to April 1, 1998 shall not exceed the sum of: of (wa) 50% of the cumulative aggregate Consolidated Net Operating Income (or or, if cumulative such aggregate Consolidated Net Operating Income shall be is a lossdeficit, minus 100% of such lossdeficit) of the Company earned for the period (taken as one accounting period) from June 30April 1, 2006 through 1998 to the last day end of the last full Company's most recently ended fiscal quarter immediately preceding for which internal financial statements are available at the date the time of such Restricted Payment occurs (the “Reference Date”) (treating such period as a single accounting period); plus (xb) 100% of the aggregate net proceeds, including cash proceeds and the fair market value of property other than cash (as determined in good faith by the board of directors of the Company and evidenced by a Board Resolution), received by the Company since April 1, 1998, from any Person other than a Subsidiary of the Company as a result of the issuance of Capital Stock (other than any Disqualified Capital Stock) of the Company including such Capital Stock issued upon conversion of Indebtedness or upon exercise of warrants and any contributions to the capital of the Company (other than Excluded Contributions) received by the Company from any such Person plus (other than a Subsidiary of the Companyc) from the issuance and sale subsequent to June 30, 2006 of Qualified Capital Stock of the Company (other than Specified Venture Capital Stock) or debt securities of the Company that are, upon issuance, convertible into or exchangeable for Qualified Capital Stock of the Company, but only when and to the extent that any Restricted Investment that was made after April 1, 1998, is sold for cash or otherwise liquidated or repaid for cash, the cash return of capital with respect to such debt securities are converted into or exchanged for Qualified Capital Stock Restricted Investment (less the cost of the Company; plus (y) without duplication disposition, if any). For purposes of any amounts included in clause (iii)(x) above, 100% of calculation pursuant to the aggregate net cash proceeds of any equity contribution received by the Company from a holder of the Company’s Capital Stock subsequent preceding sentence which is required to June 30, 2006; plus (z) $400 million. Notwithstanding the foregoing, the provisions set forth in the immediately preceding paragraph shall not prohibit: (1) the payment of any dividend be made within 60 days after the date of declaration of a dividend by the Company, such dividend if the dividend would have been permitted on shall be deemed to be paid at the date of declaration; (2) the acquisition of any shares of Capital Stock of the Company, either (i) solely in exchange for shares of Qualified Capital Stock of the Company or (ii) if no Default or Event of Default shall have occurred and be continuing, through the application of net cash proceeds of a substantially concurrent Equity Offering (other than to a Subsidiary of the Company); (3) the acquisition or repayment of any Indebtedness of the Company that is subordinate or junior in right of payment to the Notes either (i) solely in exchange for shares of Qualified Capital Stock of the Company, or (ii) if no Default or Event of Default shall have occurred and be continuing, through the application of net cash proceeds of (A) a substantially concurrent Equity Offering or (B) incurrence for cash of Refinancing Indebtedness, (in the case of (A) or (B), other than to a Subsidiary of the Company); (4) so long as no Default or Event of Default shall have occurred and be continuing, repurchases by the Company of, or dividends to a Huntsman Parent Company to permit repurchases by a Huntsman Parent Company of, Common Stock of the Company or a Huntsman Parent Company from employees of the Company or any of its Subsidiaries or their authorized representatives upon the death, disability or termination of employment of such employees, in an aggregate amount not to exceed $25 million in any calendar year; (5) the redemption or repurchase of any Common Stock of the Company held by a Restricted Subsidiary of the Company which obtained such Common Stock directly from the Company; (6) distributions to any Huntsman Parent Company in accordance with the Tax Sharing Agreement; (7) payments to any Huntsman Parent Company for legal, audit and other expenses directly relating to the administration of such Huntsman Parent Company not to exceed $10.0 million in any fiscal year; (8) the payment of consideration by a third party to equity holders of the Company; (9) additional Restricted Payments in an aggregate amount not to exceed $225 million since the Designated Date; (10) the payment of dividends or distributions to any Huntsman Parent Company which are contemporaneously applied to pay dividends on common stock of the Huntsman Public Parent at a rate not to exceed $0.40 per share per annum (such amount to be appropriately adjusted to reflect any stock split, reverse stock split, stock dividend, stock issuance or similar transactions made after the Designated Date so that the aggregate amount of dividends payable after such transaction is the same as the amount payable immediately prior to such transaction); (11) payments of dividends on Disqualified Capital Stock issued in accordance with Section 4.12; and (12) if the Consolidated Leverage Ratio of the Company, calculated after giving pro forma effect to any repurchase under this clause (12), is less than 2.5 to 1.0, then the Company may repurchase or dividend to a Huntsman Parent Company to repurchase, up to an aggregate of $250 million of Common Stock of a Huntsman Parent Company. In determining the aggregate amount of Restricted Payments made subsequent to the Designated Date in accordance with clause (iii) of the immediately preceding paragraph, cash amounts expended pursuant to clauses (1), (2), (3)(ii)(A) and (4) shall be included in such calculation and Restricted Payments made pursuant to the other clauses The foregoing provisions of this paragraph covenant shall not be so included. Not later than the date violated with respect to any series of making any Restricted Payment pursuant to clause (iii) of the second preceding paragraph or clause (9) of the immediately preceding paragraph, the Company shall deliver to the Trustee an officers’ certificate stating that such Restricted Payment complies with this Indenture and setting forth in reasonable detail the basis upon which the required calculations were computed, which calculations may be based upon the Company’s quarterly financial statements last provided to the Trustee pursuant to Section 4.09.Securities by reason of
Appears in 1 contract
Samples: Premcor Refining Group Inc
Limitation on Restricted Payments. The Company Issuers and the Guarantors, if any, shall not, and shall not cause or permit any of its Restricted their Subsidiaries to, individually or collectively, directly or indirectly, make any Restricted Payment if at the time of if, after giving effect to such Restricted Payment or immediately after giving effect theretoon a pro forma basis, (i) a Default or an Event of Default shall have occurred and be continuing, (ii) the Company Sun International is not able permitted to incur at least $1.00 of additional Indebtedness other than Permitted Indebtedness pursuant to the Debt Incurrence Ratio contained in compliance with Section 4.124.10, or (iii) the aggregate amount of all Restricted Payments made by Sun International and its Subsidiaries, including after giving effect to such proposed Restricted Payment made Payment, from and after June 30the Issue Date, 2006, including, the Fair Market Value as determined reasonably and in good faith by the Board of Managers of the Company of non-cash amounts constituting Restricted Payments shall would exceed the sum of: of (wa) 50% of the cumulative aggregate Consolidated Net Income of Sun International for the period (or if cumulative taken as one accounting period) commencing January 1, 1996 to and including the last day of the fiscal quarter ended immediately prior to the date of each such calculation (or, in the event Consolidated Net Income shall be for such period is a lossdeficit, then minus 100% of such lossdeficit) (not giving pro forma effect to the Merger for periods prior to its consummation), plus (b) the aggregate Net Cash Proceeds received by Sun International from the sale of its Qualified Capital Stock (other than (i) to a Subsidiary of Sun International and (ii) to the Company earned from June 30extent applied in connection with a Qualified Exchange) after the Issue Date, 2006 through the last day of the last full fiscal quarter plus (c) $50 million. The immediately preceding the date the Restricted Payment occurs (the “Reference Date”) (treating such period as a single accounting period); plus paragraph, however, will not prohibit (x) 100% of the aggregate net cash proceeds received by the Company from any Person (other than a Subsidiary of the Company) from the issuance and sale subsequent to June 30Qualified Exchange, 2006 of Qualified Capital Stock of the Company (other than Specified Venture Capital Stock) or debt securities of the Company that are, upon issuance, convertible into or exchangeable for Qualified Capital Stock of the Company, but only when and to the extent such debt securities are converted into or exchanged for Qualified Capital Stock of the Company; 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 the Company from a holder of the Company’s Capital Stock subsequent to June 30, 2006; plus (z) $400 million. Notwithstanding the foregoing, the provisions set forth in the immediately preceding paragraph shall not prohibit: (1) the payment of any dividend on Capital Stock within 60 days after the date of its declaration of if such dividend if the dividend would could have been permitted made on the date of declaration; such declaration in compliance with the foregoing provisions and (2) the acquisition of any shares of Capital Stock of the Company, either (i) solely in exchange for shares of Qualified Capital Stock of the Company or (ii) if no Default or Event of Default shall have occurred and be continuing, through the application of net cash proceeds of a substantially concurrent Equity Offering (other than to a Subsidiary of the Company); (3) the acquisition or repayment of any Indebtedness of the Company that is subordinate or junior in right of payment to the Notes either (i) solely in exchange for shares of Qualified Capital Stock of the Company, or (ii) if no Default or Event of Default shall have occurred and be continuing, through the application of net cash proceeds of (A) a substantially concurrent Equity Offering or (B) incurrence for cash of Refinancing Indebtedness, (in the case of (A) or (B), other than to a Subsidiary of the Company); (4) so long as no Default or Event of Default shall have occurred and be continuing, repurchases by the Company of, or dividends to a Huntsman Parent Company to permit repurchases by a Huntsman Parent Company of, Common Stock of the Company or a Huntsman Parent Company from employees of the Company or any of its Subsidiaries or their authorized representatives upon the death, disability or termination of employment of such employees, in an aggregate amount not to exceed $25 million in any calendar year; (5z) the redemption or repurchase of any Common Capital Stock or Indebtedness of the Company Issuers or their Subsidiaries (other than Capital Stock or Indebtedness held by a SIIL, its shareholders or Permitted Holders), if the holder or beneficial owner of such Capital Stock or Indebtedness is required to be found suitable by any Gaming Authority to own or vote any security and is found unsuitable by any such Gaming Authority to so own or vote such security. The full amount of any Restricted Subsidiary Payment made pursuant to the foregoing clauses (y) and (z) (but not pursuant to clause (x)) of the Company which obtained such Common Stock directly from immediately preceding sentence, however, will be deducted in the Company; (6) distributions to any Huntsman Parent Company in accordance with the Tax Sharing Agreement; (7) payments to any Huntsman Parent Company for legal, audit and other expenses directly relating to the administration calculation of such Huntsman Parent Company not to exceed $10.0 million in any fiscal year; (8) the payment of consideration by a third party to equity holders of the Company; (9) additional Restricted Payments in an aggregate amount not to exceed $225 million since the Designated Date; (10) the payment of dividends or distributions to any Huntsman Parent Company which are contemporaneously applied to pay dividends on common stock of the Huntsman Public Parent at a rate not to exceed $0.40 per share per annum (such amount to be appropriately adjusted to reflect any stock split, reverse stock split, stock dividend, stock issuance or similar transactions made after the Designated Date so that the aggregate amount of dividends payable after such transaction is the same as the amount payable immediately prior to such transaction); (11) payments of dividends on Disqualified Capital Stock issued in accordance with Section 4.12; and (12) if the Consolidated Leverage Ratio of the Company, calculated after giving pro forma effect to any repurchase under this clause (12), is less than 2.5 to 1.0, then the Company may repurchase or dividend to a Huntsman Parent Company to repurchase, up to an aggregate of $250 million of Common Stock of a Huntsman Parent Company. In determining the aggregate amount of Restricted Payments available to be made subsequent referred to the Designated Date in accordance with clause (iii) of the immediately preceding paragraph, cash amounts expended pursuant to clauses (1), (2), (3)(ii)(A) and (4) shall be included in such calculation and Restricted Payments made pursuant to the other clauses of this paragraph shall not be so included. Not later than the date of making any Restricted Payment pursuant to clause (iii) of the second preceding paragraph or clause (9) of the immediately preceding paragraph, the Company shall deliver to the Trustee an officers’ certificate stating that such Restricted Payment complies with this Indenture and setting forth in reasonable detail the basis upon which the required calculations were computed, which calculations may be based upon the Company’s quarterly financial statements last provided to the Trustee pursuant to Section 4.09.
Appears in 1 contract
Samples: Ggri Inc
Limitation on Restricted Payments. The Company shall will not, and shall will not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, make any Restricted Payment if at the time of if, after giving effect to such Restricted Payment or immediately after giving effect theretoon a pro forma basis, (i1) a Default or an Event of Default shall have occurred and be continuing, (ii2) the Company is not able permitted to incur at least $1.00 of additional Indebtedness other than Permitted Indebtedness pursuant to the Debt Incurrence Ratio in compliance with paragraph (a) of Section 4.125.11, or (iii3) the aggregate amount of all Restricted Payments made by the Company and its Subsidiaries, including after giving effect to such proposed Restricted Payment made Payment, from and after June 30April 17, 20061997, including, the Fair Market Value as determined reasonably and in good faith by the Board of Managers of the Company of non-cash amounts constituting Restricted Payments shall would exceed the sum of: of (wa) 50% of the cumulative aggregate Consolidated Net Income of the Company and its Consolidated Subsidiaries for the period (or if cumulative taken as one accounting period) commencing on the first day of the first fiscal quarter commencing prior to April 17, 1996, to and including the last day of the fiscal quarter ended immediately prior to the date of each such calculation (or, in the event Consolidated Net Income shall be for such period is a lossdeficit, then minus 100% of such loss) of the Company earned from June 30deficit), 2006 through the last day of the last full fiscal quarter immediately preceding the date the Restricted Payment occurs (the “Reference Date”) (treating such period as a single accounting period); plus (xb) 100% of the aggregate net cash proceeds Net Cash Proceeds received by the Company after April 17, 1996 and on or prior to the date of such proposed Restricted Payment from any Person (i) the sale of its Qualified Capital Stock (other than (x) to a Subsidiary of the Company, (y) from the issuance and sale subsequent to June 30, 2006 of Qualified Capital Stock of the Company (other than Specified Venture Capital Stock) or debt securities of the Company that are, upon issuance, convertible into or exchangeable for Qualified Capital Stock of the Company, but only when and to the extent such debt securities are converted into applied in connection with a Qualified Exchange and (z) in connection with the equity offering by THCR prior to or exchanged for Qualified Capital Stock substantially concurrent with the issuance of the Company; plus Existing Notes on April 17, 1996, including the exercise of the underwriters' over allotment option, except for amounts the Company received therefrom (including by Capital Contribution) in excess of $270 million) or (ii) (without duplication) other Capital Contributions. The foregoing clauses (2) and (3) of the immediately preceding paragraph, however, will not prohibit (v) (I) distributions by the Company pursuant to the terms of the Partnership Agreement as in effect on the Issue Date to THCR Holdings to the extent promptly distributed to and/or applied by THCR Holdings or THCR (A) to pay reasonable general and administrative expenses of such persons, including directors' fees and premiums for directors' and officers' liability insurance, which distributions shall not exceed $10.0 million in any consecutive four-quarter period, (B) to make indemnification payments as required by the Certificate of Incorporation of THCR as in effect on April 17, 1996 or (C) to effect redemption of any Equity Interest of THCR if (x) counsel to THCR delivers an opinion that failure to so redeem would subject THCR to an adverse action by a Gaming Authority (or, if applicable, a failure to act by a Gaming Authority that is adverse to THCR) and (y) without duplication THCR determines (as evidenced by a resolution of its Board of Directors delivered to the Trustee) that such adverse action (or, if applicable, such failure to act) would be likely to have a material adverse effect on THCR, and (II) distributions by the Company to THCR Holdings to the extent promptly distributed to and applied by THCR to pay any amounts included tax liability resulting from the distributions provided for in clause (iii)(xI) above, 100% of as required by the aggregate net cash proceeds of any equity contribution received Partnership Agreement, (w) distributions by the Company from a holder to THCR Holdings in an amount not to exceed (I) $50.0 million in the aggregate minus (II) the aggregate amount of any Restricted Payments made pursuant to clause (w) of the Company’s Capital Stock subsequent second paragraph of Section 5.3 contained in the Existing Note Indenture on or prior to June 30the Issue Date, 2006; plus to the extent applied by THCR Holdings, within 20 Business Days of receiving such distribution, to the next scheduled interest payment on the Senior Notes or any Refinancing Indebtedness with respect thereto (zprovided, that solely in the case of this clause (w), clause (1) $400 million. Notwithstanding the foregoing, the provisions set forth in of the immediately preceding paragraph shall will not prohibit: prohibit a distribution hereunder except in the case of an Event of Default under clause (1a) or (b) of Section 7.1 hereof), (x) a Qualified Exchange, (y) for so long as the Company is a partnership or substantially similar pass-through entity for Federal income tax purposes, cash distributions made by the Company to its Partners from time to time in amounts not to exceed the Permitted Tax Distributions, so long as the payments are made at the time permitted by the second sentence of the definition of Permitted Tax Distributions contained herein, or (z) the payment of any dividend within 60 days after the date of its declaration of if such dividend if the dividend would could have been permitted made on the date of declaration; (2) such declaration in compliance with the acquisition of any shares of Capital Stock foregoing provisions. In addition, the immediately preceding paragraph will not prohibit the purchase by the Company of the Company, either (i) solely in exchange for shares of Qualified Capital Stock of Existing Notes substantially concurrent with a purchase by the Company or (ii) if no Default or Event of Default shall have occurred and be continuing, through the application of net cash proceeds of a substantially concurrent Equity Offering (other than Notes pursuant to a Subsidiary Change of the Company); (3) the acquisition Control Offer or repayment of any Indebtedness of the Company an Asset Sale Offer, provided, that is subordinate or junior in right of payment to the Notes either (i) solely in exchange for shares of Qualified Capital Stock of the Company, or (ii) if no Default or Event of Default shall have occurred and be continuing, through the application of net cash proceeds of (A) a substantially concurrent Equity Offering or (B) incurrence for cash of Refinancing Indebtedness, (in the case of a purchase pursuant to an Asset Sale Offer, such purchase of Notes represents a pro rata application of the Asset Sale Offer Amount to the Notes and the Existing Notes, based upon the aggregate principal amount then outstanding. The full amount of any Restricted Payment made pursuant to the foregoing clauses (A) or (Bv), other than to a Subsidiary (w), (y) and (z) of the Company); second preceding sentence (4but not pursuant to the immediately preceding sentence or to clause (x) so long as no Default or Event of Default shall have occurred and be continuing, repurchases by the Company of, or dividends to a Huntsman Parent Company to permit repurchases by a Huntsman Parent Company of, Common Stock of the Company or a Huntsman Parent Company from employees of the Company or any of its Subsidiaries or their authorized representatives upon the death, disability or termination of employment of such employees, in an aggregate amount not to exceed $25 million in any calendar year; (5) the redemption or repurchase of any Common Stock of the Company held by a Restricted Subsidiary of the Company which obtained such Common Stock directly from the Company; (6) distributions to any Huntsman Parent Company in accordance with the Tax Sharing Agreement; (7) payments to any Huntsman Parent Company for legal, audit and other expenses directly relating to the administration of such Huntsman Parent Company not to exceed $10.0 million in any fiscal year; (8) the payment of consideration by a third party to equity holders of the Company; (9) additional Restricted Payments in an aggregate amount not to exceed $225 million since the Designated Date; (10) the payment of dividends or distributions to any Huntsman Parent Company which are contemporaneously applied to pay dividends on common stock of the Huntsman Public Parent at a rate not to exceed $0.40 per share per annum (such amount to be appropriately adjusted to reflect any stock split, reverse stock split, stock dividend, stock issuance or similar transactions made after the Designated Date so that the aggregate amount of dividends payable after such transaction is the same as the amount payable immediately prior to such transaction); (11) payments of dividends on Disqualified Capital Stock issued in accordance with Section 4.12; and (12) if the Consolidated Leverage Ratio of the Company, calculated after giving pro forma effect to any repurchase under this clause (12second preceding sentence), is less than 2.5 to 1.0however, then will be deducted in the Company may repurchase or dividend to a Huntsman Parent Company to repurchase, up to an aggregate calculation of $250 million of Common Stock of a Huntsman Parent Company. In determining the aggregate amount of Restricted Payments available to be made subsequent referred to the Designated Date in accordance with clause (iii3) of the immediately preceding paragraph, cash amounts expended pursuant to clauses (1), (2), (3)(ii)(A) and (4) shall be included in such calculation and Restricted Payments made pursuant to the other clauses of this paragraph shall not be so included. Not later than the date of making any Restricted Payment pursuant to clause (iii) of the second preceding paragraph or clause (9) of the immediately preceding paragraph, the Company shall deliver to the Trustee an officers’ certificate stating that such Restricted Payment complies with this Indenture and setting forth in reasonable detail the basis upon which the required calculations were computed, which calculations may be based upon the Company’s quarterly financial statements last provided to the Trustee pursuant to Section 4.09.
Appears in 1 contract
Samples: Indenture (Trump Communications LLC)
Limitation on Restricted Payments. The Prior to the occurrence of the Fall-Away Event, the Company shall not, and shall not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, make any Restricted Payment if at the time of such Restricted Payment or immediately after giving effect thereto, Payment: (i) a Default or an Event of Default shall have occurred and be continuing, continuing or shall occur as a consequence thereof; (ii) after giving effect to the Company is not able proposed Restricted Payment, the amount of such Restricted Payment, when added to incur at least $1.00 of additional Indebtedness other than Permitted Indebtedness in compliance with Section 4.12, or (iii) the aggregate amount of all Restricted Payments including such proposed Restricted Payment made after June 30September 25, 20062000, including, the Fair Market Value as determined reasonably and in good faith by the Board of Managers of the Company of non-cash amounts constituting Restricted Payments shall exceed exceeds the sum of: (wa) 50% of the cumulative Company’s Consolidated Net Income accrued during the period (or taken as a single period) commencing on July 1, 1997 to and including the fiscal quarter ended immediately prior to the date of such Restricted Payment (or, if cumulative such aggregate Consolidated Net Income shall be a lossdeficit, minus 100% of such loss) of the Company earned from June 30, 2006 through the last day of the last full fiscal quarter immediately preceding the date the Restricted Payment occurs (the “Reference Date”) (treating such period as a single accounting periodaggregate deficit); plus (xb) 100% of the aggregate net cash proceeds received by from the Company from any Person issuance and sale of the Company’s Capital Stock (other than to a Subsidiary of the Company) from that is not Disqualified Stock during the issuance period (taken as a single period) commencing with the Issue Date; and sale subsequent to June 30, 2006 of Qualified Capital Stock of (c) $50,000,000; or (iii) the Company (other than Specified Venture Capital Stock) or debt securities would not be able to incur an additional $1.00 of the Company that are, upon issuance, convertible into or exchangeable for Qualified Capital Stock of the Company, but only when and Indebtedness pursuant to the extent such debt securities are converted into or exchanged for Qualified Capital Stock of the Company; 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 the Company from a holder of the Company’s Capital Stock subsequent to June 30, 2006; plus (z) $400 millionSection 4.11 hereof. Notwithstanding the foregoing, the provisions set forth in the immediately preceding paragraph shall not prohibitCompany may: (1w) the payment of pay any dividend within 60 days after the date of declaration of such dividend thereof if the dividend payment thereof would have been permitted complied with the limitations of this Section 4.10 on the date of declaration; (2x) the acquisition of any retire shares of Capital Stock of the Company, either (i) solely in exchange for shares of Qualified ’s Capital Stock or the Company’s or a Subsidiary of the Company or (ii) if no Default or Event Company’s Indebtedness out of Default shall have occurred and be continuing, through the application of net cash proceeds of a substantially concurrent Equity Offering sale (other than to a Subsidiary of the Company) of shares of the Company’s Capital Stock (other than Disqualified Stock); (3y) the acquisition or repayment of any Indebtedness of the Company that is subordinate or junior make Investments in right of payment Joint Ventures which, when added to the Notes either (i) solely in exchange for shares of Qualified Capital Stock of the Company, or (ii) if no Default or Event of Default shall have occurred and be continuing, through the application of net cash proceeds of (A) a substantially concurrent Equity Offering or (B) incurrence for cash of Refinancing Indebtedness, (in the case of (A) or (B), other than to a Subsidiary of the Company); (4) so long as no Default or Event of Default shall have occurred and be continuing, repurchases by the Company of, or dividends to a Huntsman Parent Company to permit repurchases by a Huntsman Parent Company of, Common Stock of the Company or a Huntsman Parent Company from employees of the Company or any of its Subsidiaries or their authorized representatives upon the death, disability or termination of employment of such employees, in an aggregate amount not to exceed $25 million in any calendar year; (5) the redemption or repurchase of any Common Stock of the Company held by a Restricted Subsidiary of the Company which obtained such Common Stock directly from the Company; (6) distributions to any Huntsman Parent Company in accordance with the Tax Sharing Agreement; (7) payments to any Huntsman Parent Company for legal, audit and other expenses directly relating to the administration of such Huntsman Parent Company not to exceed $10.0 million in any fiscal year; (8) the payment of consideration by a third party to equity holders of the Company; (9) additional Restricted Payments in an aggregate amount not to exceed $225 million since the Designated Date; (10) the payment of dividends or distributions to any Huntsman Parent Company which are contemporaneously applied to pay dividends on common stock of the Huntsman Public Parent at a rate not to exceed $0.40 per share per annum (such amount to be appropriately adjusted to reflect any stock split, reverse stock split, stock dividend, stock issuance or similar transactions made after the Designated Date so that the aggregate amount of dividends payable all such other Investments made after September 25, 2000 pursuant to this clause (y) (or such transaction is other Investments as would have been made pursuant to this clause (y) had such clause been in effect) do not exceed 5% of Consolidated Tangible Assets at such time (with each such Investment being valued as of the same as the amount payable immediately prior date made and without regard to such transactionsubsequent changes in value); (11) payments of dividends on Disqualified Capital Stock issued in accordance with Section 4.12; and (12z) if the Consolidated Leverage Ratio of the Companymake Investments which, calculated after giving pro forma effect when added to any repurchase under this clause (12), is less than 2.5 to 1.0, then the Company may repurchase or dividend to a Huntsman Parent Company to repurchase, up to an aggregate of $250 million of Common Stock of a Huntsman Parent Company. In determining the aggregate amount of all such other Investments made after September 25, 2000 pursuant to this clause (z) (or such other Investments as would have been made pursuant to this clause (z) had such clause been in effect) do not exceed 2.5% of Consolidated Tangible Assets at such time (with each such Investment being valued as of the date made and without regard to subsequent changes in value); provided, however, that each Restricted Payment described in clause (w) or (x) above shall be taken into account for purposes of computing the aggregate amount of all Restricted Payments made subsequent pursuant to the Designated Date in accordance with clause (iiiii) of the immediately preceding paragraph, cash amounts expended pursuant to clauses (1), (2), (3)(ii)(A) and (4) shall be included in such calculation and Restricted Payments made pursuant to the other clauses of this paragraph shall not be so included. Not later than the date of making any Restricted Payment pursuant to clause (iii) of the second preceding paragraph or clause (9) of the immediately preceding paragraph, the Company shall deliver to the Trustee an officers’ certificate stating that such Restricted Payment complies with this Indenture and setting forth in reasonable detail the basis upon which the required calculations were computed, which calculations may be based upon the Company’s quarterly financial statements last provided to the Trustee pursuant to Section 4.09.
Appears in 1 contract
Samples: Healthsouth Corp
Limitation on Restricted Payments. (a) The Company shall Issuer will not, and shall will not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, make any Restricted Payment if Payment, unless, at the time of such Restricted Payment or and immediately after giving effect theretoto the proposed Restricted Payment (with the value of any such Restricted Payment, if other than cash, to be determined by the Board of Directors of the Issuer, whose determination shall be conclusive and evidenced by a Board Resolution), (i) a no Default or an Event of Default shall have occurred and be continuing, continuing or would occur as a consequence thereof; (ii) the Company is not able 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 other than Permitted Indebtedness Debt pursuant to the Consolidated Fixed Charge Coverage Ratio test set forth in compliance with Section 4.12, or 4.12(a); and (iii) such Restricted Payment, together with the aggregate amount of all other Restricted Payments including such proposed Restricted Payment made after June 30, 2006, including, the Fair Market Value as determined reasonably and in good faith by the Board Issuer and its Restricted Subsidiaries after the date of Managers of the Company of non-cash amounts constituting this Indenture (including Restricted Payments shall exceed permitted by clauses (i) and (iv) of Section 4.10(b) and excluding the Restricted Payments permitted by the other clauses therein), is less than or equal to the sum of: of (wa) 50% of the cumulative Consolidated Net Income (or if cumulative Consolidated Net Income shall be a loss, minus 100% of such loss) earned on an accumulative basis during the period beginning October 1, 1997 and ending on the last date of the Company earned from June 30, 2006 through the last day of the last full Issuer's fiscal quarter immediately preceding the date the Restricted Payment occurs (the “Reference Date”) (treating such period as a single accounting period); proposed restricted payment, plus (xb) 100% of the aggregate net cash proceeds received by the Company Issuer as capital contributions after October 1, 1997 or from any Person (other than a Subsidiary the issue or sale after October 1, 1997 of Equity Interests of the Company) from the issuance and sale subsequent to June 30, 2006 Issuer or of Qualified Capital Disqualified Stock of the Company (other than Specified Venture Capital Stock) or debt securities of the Company Issuer that are, upon issuance, convertible into or exchangeable for Qualified Capital Stock of the Company, but only when and to the extent such debt securities are have been converted into or exchanged for Qualified Capital Stock of the Company; 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 the Company from a holder of the Company’s Capital Stock subsequent to June 30, 2006; plus (z) $400 million. Notwithstanding the foregoing, the provisions set forth in the immediately preceding paragraph shall 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) the acquisition of any shares of Capital Stock of the Company, either (i) solely in exchange for shares of Qualified Capital Stock of the Company or (ii) if no Default or Event of Default shall have occurred and be continuing, through the application of net cash proceeds of a substantially concurrent Equity Offering Interests (other than Equity Interests (or Disqualified Stock or convertible debt securities) sold to a Subsidiary of the Company); (3) the acquisition or repayment of any Indebtedness of the Company that is subordinate or junior in right of payment to the Notes either (i) solely in exchange for shares of Qualified Capital Stock of the Company, or (ii) if no Default or Event of Default shall have occurred and be continuing, through the application of net cash proceeds of (A) a substantially concurrent Equity Offering or (B) incurrence for cash of Refinancing Indebtedness, (in the case of (A) or (B), other than to a Subsidiary of the Company); (4) so long as no Default or Event of Default shall have occurred and be continuing, repurchases by the Company of, or dividends to a Huntsman Parent Company to permit repurchases by a Huntsman Parent Company of, Common Stock of the Company or a Huntsman Parent Company from employees of the Company or any of its Subsidiaries or their authorized representatives upon the death, disability or termination of employment of such employees, in an aggregate amount not to exceed $25 million in any calendar year; (5) the redemption or repurchase of any Common Stock of the Company held by a Restricted Subsidiary of the Company which obtained such Common Stock directly from the Company; (6) distributions to any Huntsman Parent Company in accordance with the Tax Sharing Agreement; (7) payments to any Huntsman Parent Company for legal, audit Issuer and other expenses directly relating to the administration of such Huntsman Parent Company not to exceed $10.0 million in any fiscal year; (8) the payment of consideration by a third party to equity holders of the Company; (9) additional Restricted Payments in an aggregate amount not to exceed $225 million since the Designated Date; (10) the payment of dividends than Disqualified Stock or distributions to any Huntsman Parent Company which are contemporaneously applied to pay dividends on common stock of the Huntsman Public Parent at a rate not to exceed $0.40 per share per annum (such amount to be appropriately adjusted to reflect any stock split, reverse stock split, stock dividend, stock issuance or similar transactions made after the Designated Date so convertible debt securities that the aggregate amount of dividends payable after such transaction is the same as the amount payable immediately prior to such transaction); (11) payments of dividends on have been converted into Disqualified Capital Stock issued in accordance with Section 4.12; and (12) if the Consolidated Leverage Ratio of the Company, calculated after giving pro forma effect to any repurchase under this clause (12Stock), is less than 2.5 to 1.0, then the Company may repurchase or dividend to a Huntsman Parent Company to repurchase, up to an aggregate of plus (c) $250 million of Common Stock of a Huntsman Parent Company. In determining the aggregate amount of Restricted Payments made subsequent to the Designated Date in accordance with clause (iii) of the immediately preceding paragraph, cash amounts expended pursuant to clauses (1), (2), (3)(ii)(A) and (4) shall be included in such calculation and Restricted Payments made pursuant to the other clauses of this paragraph shall not be so included. Not later than the date of making any Restricted Payment pursuant to clause (iii) of the second preceding paragraph or clause (9) of the immediately preceding paragraph, the Company shall deliver to the Trustee an officers’ certificate stating that such Restricted Payment complies with this Indenture and setting forth in reasonable detail the basis upon which the required calculations were computed, which calculations may be based upon the Company’s quarterly financial statements last provided to the Trustee pursuant to Section 4.092.0 million.
Appears in 1 contract
Samples: Kilovac International Inc
Limitation on Restricted Payments. The Company shall not, and shall not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, make any Restricted Payment if at the time of such Restricted Payment or immediately after giving effect thereto, (i) a Default or an Event of Default shall have occurred and be continuing, (ii) the Company is not able to incur at least $1.00 of additional Indebtedness other than Permitted Indebtedness in compliance with Section 4.12, or (iii) the aggregate amount of Restricted Payments including such proposed Restricted Payment made after June 30, 2006, including, the Fair Market Value as determined reasonably and in good faith by the Board of Managers of the Company Company) of non-cash amounts constituting Restricted Payments 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 the Company earned from June 30, 2006 through the last day of the last full fiscal quarter immediately preceding 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 the Company from any Person (other than a Subsidiary of the Company) from the issuance and sale subsequent to June 30, 2006 of Qualified Capital Stock of the Company (other than Specified Venture Capital Stock) or debt securities of the Company that are, upon issuance, convertible into or exchangeable for Qualified Capital Stock of the Company, but only when and to the extent such debt securities are converted into or exchanged for Qualified Capital Stock of the Company; 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 the Company from a holder of the Company’s Capital Stock subsequent to June 30, 2006; plus (z) $400 million. Notwithstanding the foregoing, the provisions set forth in the immediately preceding paragraph shall 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) the acquisition of any shares of Capital Stock of the Company, either (i) solely in exchange for shares of Qualified Capital Stock of the Company or (ii) if no Default or Event of Default shall have occurred and be continuing, through the application of net cash proceeds of a substantially concurrent Equity Offering (other than to a Subsidiary of the Company); (3) the acquisition or repayment of any Indebtedness of the Company that is subordinate or junior in right of payment to the Notes either (i) solely in exchange for shares of Qualified Capital Stock of the Company, or (ii) if no Default or Event of Default shall have occurred and be continuing, through the application of net cash proceeds of (A) a substantially concurrent Equity Offering or (B) incurrence for cash of Refinancing Indebtedness, (in the case of (A) or (B), other than to a Subsidiary of the Company); (4) so long as no Default or Event of Default shall have occurred and be continuing, repurchases by the Company of, or dividends to a Huntsman Parent Company to permit repurchases by a Huntsman Parent Company of, Common Stock of the Company or a Huntsman Parent Company from employees of the Company or any of its Subsidiaries or their authorized representatives upon the death, disability or termination of employment of such employees, in an aggregate amount not to exceed $25 million in any calendar year; (5) the redemption or repurchase of any Common Stock of the Company held by a Restricted Subsidiary of the Company which obtained such Common Stock directly from the Company; (6) distributions to any Huntsman Parent Company in accordance with the Tax Sharing Agreement; (7) payments to any Huntsman Parent Company for legal, audit and other expenses directly relating to the administration of such Huntsman Parent Company not to exceed $10.0 million in any fiscal year; (8) the payment of consideration by a third party to equity holders of the Company; (9) additional Restricted Payments in an aggregate amount not to exceed $225 million since the Designated Issue Date; (10) the payment of dividends or distributions to any Huntsman Parent Company which are contemporaneously applied to pay dividends on common stock of the Huntsman Public Parent at a rate not to exceed $0.40 per share per annum (such amount to be appropriately adjusted to reflect any stock split, reverse stock split, stock dividend, stock issuance or similar transactions made after the Designated Issue Date so that the aggregate amount of dividends payable after such transaction is the same as the amount payable immediately prior to such transaction); (11) payments of dividends on Disqualified Capital Stock issued in accordance with Section 4.12; and (12) if the Consolidated Leverage Ratio of the Company, calculated after giving pro forma effect to any repurchase under this clause (12), is less than 2.5 to 1.0, then the Company may repurchase or dividend to a Huntsman Parent Company to repurchase, up to an aggregate of $250 million of Common Stock of a Huntsman Parent Company. In determining the aggregate amount of Restricted Payments made subsequent to the Designated Issue Date in accordance with clause (iii) of the immediately preceding paragraph, cash amounts expended pursuant to clauses (1), (2), (3)(ii)(A) and (4) shall be included in such calculation and Restricted Payments made pursuant to the other clauses of this the preceding paragraph shall not be so included. Not later than the date of making any Restricted Payment pursuant to clause (iii) of the second preceding paragraph or clause (9) of the immediately preceding paragraph, the Company shall deliver to the Trustee an officers’ certificate stating that such Restricted Payment complies with this Indenture and setting forth in reasonable detail the basis upon which the required calculations were computed, which calculations may be based upon the Company’s quarterly financial statements last provided to the Trustee pursuant to Section 4.09.
Appears in 1 contract
Limitation on Restricted Payments. The Company shall Holdings will not, and shall will not cause or permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, make any Restricted Payment if at the time of such Restricted Payment or immediately after giving effect thereto, Payment: (ia) a Default or an Event of Default shall have occurred and be continuingcontinuing or shall occur as a consequence thereof; (b) after giving effect to such Restricted Payment (including, without limitation, the incurrence of any Indebtedness to finance such Restricted Payment), the Consolidated Fixed Charge Coverage Ratio would be less than 2:00 to 1:00; or (iic) the Company is not able amount of such Restricted Payment, when added to incur at least $1.00 of additional Indebtedness other than Permitted Indebtedness in compliance with Section 4.12, or (iii) the aggregate amount of all other Restricted Payments including such proposed Restricted Payment made after June 30the Issue Date (other than Restricted Payments made pursuant to clauses (b), 2006(c), including(d), the Fair Market Value as determined reasonably and in good faith by the Board of Managers (e), (f), (i), (k), (l), (n) or (o) of the Company of non-cash amounts constituting next paragraph), exceeds the sum (the “Restricted Payments shall exceed the sum of: Basket”) of (wwithout duplication): (1) 50% of the cumulative Consolidated Net Income determined in accordance with GAAP for the period (or taken as one accounting period) commencing on the first day of the fiscal quarter during which the Issue Date occurs to and including the last day of the fiscal quarter ended immediately prior to the date of such calculation for which consolidated financial statements are available (or, if cumulative such Consolidated Net Income shall be a lossdeficit, minus 100% of such loss) of the Company earned from June 30aggregate deficit), 2006 through the last day of the last full fiscal quarter immediately preceding the date the Restricted Payment occurs (the “Reference Date”) (treating such period as a single accounting period); plus (x2) 100% of the aggregate net cash proceeds and the fair market value, as determined in good faith by Holdings, of property and marketable securities, in each case received by the Company Holdings from any Person (other than a Subsidiary of the Companya) from the issuance and sale subsequent to June 30, 2006 of Qualified Capital Stock Equity 64 Interests of Holdings (or any direct or indirect parent company of Holdings) after the Company Issue Date or (other than Specified Venture Capital Stockb) the issuance or sale of convertible or exchangeable Disqualified Equity Interests of Holdings (or any direct or indirect parent company of Holdings) or convertible or exchangeable debt securities of the Company Holdings (or any direct or indirect parent company of Holdings), in each case that are, upon issuance, convertible into or exchangeable for Qualified Capital Stock of the Company, but only when and to the extent such debt securities are have been converted into or exchanged for Qualified Capital Stock Equity Interests of Holdings (or any direct or indirect parent company of Holdings), plus the aggregate net cash proceeds received by Holdings at the time of such conversion or exchange, or (c) any capital contribution made to Holdings, in each case other than (A) any such proceeds which are used to effect a Make-Whole Redemption (as defined in paragraph 5 of the Company; Notes) of Notes, (B) any such proceeds or assets received from a Subsidiary of Holdings or (C) contributions to the extent such amounts have been applied to Restricted Payments made in accordance with clause (c) of the next succeeding paragraph, plus (y3) without duplication the aggregate amount by which Indebtedness (other than any Subordinated Indebtedness) of Holdings or any Restricted Subsidiary is reduced on the consolidated balance sheet of the Consolidated Group upon the conversion or exchange subsequent to the Issue Date into Qualified Equity Interests of Holdings (or any direct or indirect parent company of Holdings) (less the amount of any amounts cash, or the fair value of assets, distributed by Holdings or any Restricted Subsidiary upon such conversion or exchange), plus (4) to the extent not already included in clause (iii)(x) aboveConsolidated Net Income, 100% of the aggregate net amount received in cash proceeds and the fair market value, as determined in good faith by Holdings, of any equity contribution property and marketable securities received by the Company from a holder means of the Company’s Capital Stock subsequent to June 30, 2006; plus (z) $400 million. Notwithstanding the foregoing, the provisions set forth in the immediately preceding paragraph shall 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) the acquisition of any shares of Capital Stock of the Company, either (i) solely in exchange for shares of Qualified Capital Stock of the Company or (ii) if no Default or Event of Default shall have occurred and be continuing, through the application of net cash proceeds of a substantially concurrent Equity Offering sale (other than to Holdings or a Subsidiary Restricted Subsidiary) of the Company); (3) the acquisition or repayment of any Indebtedness of the Company that is subordinate or junior in right of payment to the Notes either (i) solely in exchange for shares of Qualified Capital Stock of an Unrestricted Subsidiary or a distribution from an Unrestricted Subsidiary (other than, in each case, to the Companyextent the Investment in such Unrestricted Subsidiary was made by a Restricted Subsidiary pursuant to clause (h) of the next succeeding paragraph) or a dividend from an Unrestricted Subsidiary, or plus (ii5) if no Default or Event of Default shall have occurred and be continuing, through the application of net cash proceeds of (A) a substantially concurrent Equity Offering or (B) incurrence for cash of Refinancing Indebtedness, (in the case of the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary or the merger or consolidation of an Unrestricted Subsidiary into Holdings or a Restricted Subsidiary or the transfer of assets of an Unrestricted Subsidiary to Holdings or a Restricted Subsidiary, the fair market value of the Investment in such Unrestricted Subsidiary, as determined by Holdings in good faith at the time of the redesignation of such Unrestricted Subsidiary as a Restricted Subsidiary or at the time of such merger, consolidation or transfer of assets (A) or (B), other than an Unrestricted Subsidiary to a the extent the Investment in such Unrestricted Subsidiary of the Company); (4) so long as no Default or Event of Default shall have occurred and be continuing, repurchases by the Company of, or dividends to a Huntsman Parent Company to permit repurchases by a Huntsman Parent Company of, Common Stock of the Company or a Huntsman Parent Company from employees of the Company or any of its Subsidiaries or their authorized representatives upon the death, disability or termination of employment of such employees, in an aggregate amount not to exceed $25 million in any calendar year; (5) the redemption or repurchase of any Common Stock of the Company held was made by a Restricted Subsidiary of the Company which obtained such Common Stock directly from the Company; (6) distributions to any Huntsman Parent Company in accordance with the Tax Sharing Agreement; (7) payments to any Huntsman Parent Company for legal, audit and other expenses directly relating to the administration of such Huntsman Parent Company not to exceed $10.0 million in any fiscal year; (8) the payment of consideration by a third party to equity holders of the Company; (9) additional Restricted Payments in an aggregate amount not to exceed $225 million since the Designated Date; (10) the payment of dividends or distributions to any Huntsman Parent Company which are contemporaneously applied to pay dividends on common stock of the Huntsman Public Parent at a rate not to exceed $0.40 per share per annum (such amount to be appropriately adjusted to reflect any stock split, reverse stock split, stock dividend, stock issuance or similar transactions made after the Designated Date so that the aggregate amount of dividends payable after such transaction is the same as the amount payable immediately prior to such transaction); (11) payments of dividends on Disqualified Capital Stock issued in accordance with Section 4.12; and (12) if the Consolidated Leverage Ratio of the Company, calculated after giving pro forma effect to any repurchase under this clause (12), is less than 2.5 to 1.0, then the Company may repurchase or dividend to a Huntsman Parent Company to repurchase, up to an aggregate of $250 million of Common Stock of a Huntsman Parent Company. In determining the aggregate amount of Restricted Payments made subsequent to the Designated Date in accordance with clause (iii) of the immediately preceding paragraph, cash amounts expended pursuant to clauses (1), (2), (3)(ii)(A) and (4) shall be included in such calculation and Restricted Payments made pursuant to the other clauses of this paragraph shall not be so included. Not later than the date of making any Restricted Payment pursuant to clause (iiih) of the second preceding paragraph or clause (9) of the immediately preceding next succeeding paragraph, the Company shall deliver to the Trustee an officers’ certificate stating that such Restricted Payment complies with this Indenture and setting forth in reasonable detail the basis upon which the required calculations were computed, which calculations may be based upon the Company’s quarterly financial statements last provided to the Trustee pursuant to Section 4.09.). The foregoing provisions will not prohibit: 65
Appears in 1 contract
Samples: James Hardie Industries PLC
Limitation on Restricted Payments. The Company shall notnot make, and shall not cause or permit any of its Restricted Subsidiaries toSubsidiary to make, directly or indirectly, make any Restricted Payment if unless at the time of such Restricted Payment or immediately of, and after giving effect theretoto, the proposed Restricted Payment, (ia) a Default or an Event of Default shall have occurred and be continuing, (ii) the Company is not able to incur at least $1.00 of additional Indebtedness other than Permitted Indebtedness in compliance with Section 4.12, or (iii) the aggregate amount of Restricted Payments including such proposed Restricted Payment made after June 30, 2006, including, the Fair Market Value as determined reasonably and in good faith by the Board of Managers of the Company of non-cash amounts constituting Restricted Payments 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 the Company earned from June 30, 2006 through the last day of the last full fiscal quarter immediately preceding 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 the Company from any Person (other than a Subsidiary of the Company) from the issuance and sale subsequent to June 30, 2006 of Qualified Capital Stock of the Company (other than Specified Venture Capital Stock) or debt securities of the Company that are, upon issuance, convertible into or exchangeable for Qualified Capital Stock of the Company, but only when and to the extent such debt securities are converted into or exchanged for Qualified Capital Stock of the Company; 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 the Company from a holder of the Company’s Capital Stock subsequent to June 30, 2006; plus (z) $400 million. Notwithstanding the foregoing, the provisions set forth in the immediately preceding paragraph shall 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) the acquisition of any shares of Capital Stock of the Company, either (i) solely in exchange for shares of Qualified Capital Stock of the Company or (ii) if no Default or Event of Default shall have occurred and be continuing, through (b) the application Company could Incur at least $1.00 of net cash proceeds additional Debt pursuant to clause (a) of Section 4.04, on a substantially concurrent Equity Offering pro forma basis, and (c) the aggregate amount of that Restricted Payment and all other Restricted Payments declared or made after the Issue Date (and not returned or rescinded), other than Restricted Payments made pursuant to a Subsidiary clauses (b) through (o) of the paragraph below (the amount of any Restricted Payment, if made other than in cash, to be based upon Fair Market Value), would not exceed an amount equal to the sum of: (1) 50% of the aggregate amount of Consolidated Net Income accrued during the period (treated as one accounting period) from October 1, 2023 to and including the end of the most recent fiscal quarter ending prior to the date of such Restricted Payment and for which consolidated financial statements are internally available (or if the aggregate amount of Consolidated Net Income for such period shall be a deficit, minus 100% of such deficit), plus (2) Capital Stock Sale Proceeds or any contribution to the Company); ’s equity capital received after the first day of the financial quarter in which the Issue Date occurs, plus (3) the acquisition sum of: (A) the aggregate Net Cash Proceeds received by the Company or repayment of any Indebtedness Restricted Subsidiary from the issuance or sale after the first day of the Company financial quarter in which the Issue Date occurs of convertible or exchangeable Debt that is subordinate has been converted into or junior in right of payment to the Notes either (i) solely in exchange exchanged for shares of Qualified Capital Stock (other than Excluded Contributions and Disqualified Stock) of the Company, or (ii) if no Default or Event of Default shall have occurred and be continuing, through the application of net cash proceeds of (A) a substantially concurrent Equity Offering or (B) incurrence the aggregate amount by which Debt of the Company or any Restricted Subsidiary is reduced on the Company’s consolidated balance sheet on or after the first day of the financial quarter in which the Issue Date occurs upon the conversion or exchange of any Debt issued or sold on or prior to the first day of the financial quarter in which the Issue Date occurs that is convertible or exchangeable or exchanged for cash Capital Stock (other than Disqualified Stock) of Refinancing Indebtednessthe Company, (C) excluding, in the case of clause (A) or (B), other than any Debt issued or sold to the Company or a Subsidiary of the Company); Company or an employee stock ownership plan or trust established by the Company or any Subsidiary of the 78 Company for the benefit of their employees to the extent funded by the Company or any Restricted Subsidiary, plus (4) so long an amount equal to the sum of: (A) the net reduction in Investments in any Person other than the Company or a Restricted Subsidiary resulting from dividends or distributions, Repayments of loans or advances or other transfers of Property made after the first day of the financial quarter in which the Issue Date occurs, in each case to the Company or any Restricted Subsidiary from that Person, less the cost of the disposition of those Investments, and (B) in the case of the designation of an Unrestricted Subsidiary as no Default a Restricted Subsidiary or Event all of Default shall have occurred the assets of such Unrestricted Subsidiary are transferred to the Company or a Restricted Subsidiary, or the Unrestricted Subsidiary is merged, amalgamated or consolidated into the Company or a Restricted Subsidiary, (i) 100% of such amount received in cash (ii) the portion (proportionate to the Company’s direct or indirect equity interest in the Subsidiary) of the Fair Market Value of the net assets of such Unrestricted Subsidiary and be continuing, repurchases (iii) (without double counting any amounts included in the preceding clause (ii)) the Fair Market Value of any property or marketable securities received by the Company or any Restricted Subsidiary in respect of such redesignation, merger, amalgamation, consolidation or transfer of assets (provided that such designation occurs after the Issue Date), plus (5) any cash dividends or cash distributions received directly or indirectly by the Company or a Restricted Subsidiary after the first day of the financial quarter in which the Issue Date occurs from an Unrestricted Subsidiary, to the extent such dividends or distributions were not otherwise included in Consolidated Net Income (other than to the extent such distribution represents a return of capital and the Investment in such Unrestricted Subsidiary was made by the Restricted Subsidiary pursuant to clause (j) of this Section 4.05 or to the extent such Investment constituted a Permitted Investment). Notwithstanding the foregoing limitation, the Company may: (a) declare or pay dividends on its Capital Stock or distributions, or the consummation of any repurchase or redemption, within 60 days after the date of declaration of the dividend or distribution or giving of the redemption or repurchase notice, as the case may be, if, on said date of declaration or redemption or repurchase notice, such dividends, distributions, repurchase or redemption, as the case may be, could have been paid in compliance with this Indenture; (b) make Restricted Payments in exchange for, or out of the proceeds of the substantially concurrent issuance or sale of, or dividends to a Huntsman Parent Company to permit repurchases by a Huntsman Parent Company of, Common Capital Stock of the Company or a Huntsman Parent Company from employees of the Company or any of its Subsidiaries or their authorized representatives upon the death, disability or termination of employment of such employees, in an aggregate amount not to exceed $25 million in any calendar year; (5) the redemption or repurchase of any Common Stock of the Company held by a Restricted Subsidiary of the Company which obtained such Common Stock directly from the Company; (6) distributions to any Huntsman Parent Company in accordance with the Tax Sharing Agreement; (7) payments to any Huntsman Parent Company for legal, audit and other expenses directly relating to the administration of such Huntsman Parent Company not to exceed $10.0 million in any fiscal year; (8) the payment of consideration by a third party to equity holders of the Company; (9) additional Restricted Payments in an aggregate amount not to exceed $225 million since the Designated Date; (10) the payment of dividends or distributions to any Huntsman Parent Company which are contemporaneously applied to pay dividends on common stock of the Huntsman Public Parent at a rate not to exceed $0.40 per share per annum (such amount to be appropriately adjusted to reflect any stock split, reverse stock split, stock dividend, stock issuance or similar transactions made after the Designated Date so that the aggregate amount of dividends payable after such transaction is the same as the amount payable immediately prior to such transaction); (11) payments of dividends on Disqualified Capital Stock issued in accordance with Section 4.12; and (12) if the Consolidated Leverage Ratio of the Company, calculated after giving pro forma effect to any repurchase under this clause (12), is less than 2.5 to 1.0, then the Company may repurchase or dividend to a Huntsman Parent Company to repurchase, up to an aggregate of $250 million of Common Stock of a Huntsman Parent Company. In determining the aggregate amount of Restricted Payments made subsequent to the Designated Date in accordance with clause (iii) of the immediately preceding paragraph, cash amounts expended pursuant to clauses (1), (2), (3)(ii)(A) and (4) shall be included in such calculation and Restricted Payments made pursuant to the other clauses of this paragraph shall not be so included. Not later than the date of making any Restricted Payment pursuant to clause (iii) of the second preceding paragraph or clause (9) of the immediately preceding paragraph, the Company shall deliver to the Trustee an officers’ certificate stating that such Restricted Payment complies with this Indenture and setting forth in reasonable detail the basis upon which the required calculations were computed, which calculations may be based upon the Company’s quarterly financial statements last provided to the Trustee pursuant to Section 4.09.Disqualified
Appears in 1 contract
Samples: Borr Drilling LTD
Limitation on Restricted Payments. The Company and the Guarantors shall not, and shall not cause or permit any of its Restricted their Subsidiaries to, directly or indirectly, make any Restricted Payment if at the time of if, after giving effect to such Restricted Payment or immediately after giving effect theretoon a PRO FORMA basis, (i1) a Default or an Event of Default shall have occurred and be continuing, (ii2) the Company is not able permitted to incur at least $1.00 of additional Indebtedness other than Permitted Indebtedness pursuant to the Debt Incurrence Ratio in compliance with Section 4.12, 4.11 or (iii3) the aggregate amount of all Restricted Payments made by the Company and its Subsidiaries, including after giving effect to such proposed Restricted Payment made Payment, from and after June 30the Issue Date, 2006would exceed, includingwithout duplication, the Fair Market Value as determined reasonably and in good faith by the Board sum of Managers of the Company of non-cash amounts constituting Restricted Payments shall exceed the sum of: (wa) 50% of the cumulative aggregate Consolidated Net Income of the Company for the period (or if cumulative taken as one accounting period), commencing on the first day of the first full fiscal quarter commencing after the Issue Date, to and including the last day of the fiscal quarter ended immediately prior to the date of each such calculation (or, in the event Consolidated Net Income shall be for such period is a lossdeficit, then minus 100% of such loss) of the Company earned from June 30deficit), 2006 through the last day of the last full fiscal quarter immediately preceding the date the Restricted Payment occurs (the “Reference Date”) (treating such period as a single accounting period); plus (xb) 100% of the aggregate net cash proceeds received by the Company from any Person (other than a Subsidiary of the Company) from the issuance and sale subsequent to June 30, 2006 of Qualified Capital Stock of the Company (other than Specified Venture Capital Stock) or debt securities of the Company that are, upon issuance, convertible into or exchangeable for Qualified Capital Stock of the Company, but only when and to the extent such debt securities are converted into or exchanged for Qualified Capital Stock of the Company; plus (y) without duplication of any amounts included in clause (iii)(x) above, 100% of the aggregate net cash proceeds of any equity contribution Net Cash Proceeds received by the Company from a holder Capital Contribution or the sale of its Qualified Capital Stock (other than (i) to a Subsidiary of the Company’s , (ii) to the extent applied in connection with a Qualified Exchange and (iii) to the extent credited in (v) and (w) in the following paragraph), after the Issue Date, plus (c) other than amounts credited pursuant to clause (v) of the next following paragraph, the net amount of any Restricted Investments (not to exceed the original amount of such Investment) made after the Issue Date that are returned to the Company or the Guarantor that made such prior Investment, without restriction in cash on or prior to the date of any such calculation. The foregoing clauses (2) and (3) of the immediately preceding paragraph, however, will not prohibit (v) Restricted Investments in a Related Business, PROVIDED, that, after giving PRO FORMA effect to such Investment, the aggregate amount of all such Investments made on or after the Issue Date that are outstanding (after giving effect to any such Investments that are returned to the Company or the Guarantor that made such prior Investment, without restriction, in cash on or prior to the date of any such calculation) at any time does not exceed $4,000,000, (w) repurchases of Capital Stock from employees of the Company or its Subsidiaries upon the death, disability or termination of employment in an aggregate amount to all employees not to exceed $300,000 in any fiscal year or $1,500,000 in the aggregate on and after the Issue Date net of the Net Cash Proceeds received by the Company from subsequent reissuances of such Qualified Capital Stock to June 30new employees that are not Excluded Persons, 2006; plus (z) $400 million. Notwithstanding the foregoing, and the provisions set forth in of the immediately preceding paragraph shall will not prohibit: , (1x) a Qualified Exchange, (y) the payment of any dividend on Qualified Capital Stock within 60 days after the date of its declaration of if such dividend if the dividend would could have been permitted made on the date of declaration; such declaration in compliance with the foregoing provisions or (2z) the acquisition Permitted Payments to Parent. The full amount of any shares of Capital Stock Restricted Payment made pursuant to the foregoing clauses (v), (w), (y) and (z) (but not pursuant to clause (x)) of the Companyimmediately preceding sentence, either (i) solely however, will be deducted in exchange for shares of Qualified Capital Stock the calculation of the aggregate amount of Restricted Payments available to be made referred to in clause (3) of the immediately preceding paragraph. In addition, the Company and the Guarantors will not, and will not permit any of their Subsidiaries to, directly or indirectly, make any Management Fee Payment or similar payment to Affiliates (iiother than Subsidiaries) if no other than Permitted Payments to Parent if, after giving effect to such Management Fee Payments or similar payments, on a PRO FORMA basis after giving effect to such payment, a Default or an Event of Default shall have occurred and be continuing. For purposes of this covenant, through the application amount of net cash proceeds of a substantially concurrent Equity Offering (any Restricted Payment, if other than to a Subsidiary in cash, shall be the fair market value thereof, as determined in the good faith reasonable judgment of the Board of Directors of the Company); (3) the acquisition or repayment of any Indebtedness of the Company that is subordinate or junior in right of payment to the Notes either (i) solely in exchange for shares of Qualified Capital Stock of the Company. Additionally, or (ii) if no Default or Event of Default shall have occurred and be continuing, through the application of net cash proceeds of (A) a substantially concurrent Equity Offering or (B) incurrence for cash of Refinancing Indebtedness, (in the case of (A) or (B), other than to a Subsidiary of the Company); (4) so long as no Default or Event of Default shall have occurred and be continuing, repurchases by the Company of, or dividends to a Huntsman Parent Company to permit repurchases by a Huntsman Parent Company of, Common Stock of the Company or a Huntsman Parent Company from employees of the Company or any of its Subsidiaries or their authorized representatives upon the death, disability or termination of employment of such employees, in an aggregate amount not to exceed $25 million in any calendar year; (5) the redemption or repurchase of any Common Stock of the Company held by a Restricted Subsidiary of the Company which obtained such Common Stock directly from the Company; (6) distributions to any Huntsman Parent Company in accordance with the Tax Sharing Agreement; (7) payments to any Huntsman Parent Company for legal, audit and other expenses directly relating to the administration of such Huntsman Parent Company not to exceed $10.0 million in any fiscal year; (8) the payment of consideration by a third party to equity holders of the Company; (9) additional Restricted Payments in an aggregate amount not to exceed $225 million since the Designated Date; (10) the payment of dividends or distributions to any Huntsman Parent Company which are contemporaneously applied to pay dividends on common stock of the Huntsman Public Parent at a rate not to exceed $0.40 per share per annum (such amount to be appropriately adjusted to reflect any stock split, reverse stock split, stock dividend, stock issuance or similar transactions made after the Designated Date so that the aggregate amount of dividends payable after such transaction is the same as the amount payable immediately prior to such transaction); (11) payments of dividends on Disqualified Capital Stock issued in accordance with Section 4.12; and (12) if the Consolidated Leverage Ratio of the Company, calculated after giving pro forma effect to any repurchase under this clause (12), is less than 2.5 to 1.0, then the Company may repurchase or dividend to a Huntsman Parent Company to repurchase, up to an aggregate of $250 million of Common Stock of a Huntsman Parent Company. In determining the aggregate amount of Restricted Payments made subsequent to the Designated Date in accordance with clause (iii) of the immediately preceding paragraph, cash amounts expended pursuant to clauses (1), (2), (3)(ii)(A) and (4) shall be included in such calculation and Restricted Payments made pursuant to the other clauses of this paragraph shall not be so included. Not later than the date of making any each Restricted Payment pursuant to clause (iii) of the second preceding paragraph or clause (9) of the immediately preceding paragraphPayment, the Company shall deliver an Officers' Certificate to the Trustee an officers’ certificate describing in reasonable detail the nature of such Restricted Payment, stating the amount of such Restricted Payment, stating in reasonable detail the provisions of this Indenture pursuant to which such Restricted Payment was made and certifying that such Restricted Payment complies was made in compliance with the terms of this Indenture and setting forth in reasonable detail the basis upon which the required calculations were computed, which calculations may be based upon the Company’s quarterly financial statements last provided to the Trustee pursuant to Section 4.09Indenture.
Appears in 1 contract
Samples: Compass Aerospace LTD
Limitation on Restricted Payments. (a) The Company shall not, and shall not cause or permit any of its Restricted Subsidiaries or any Eligible Joint Venture to, directly or indirectly, make any Restricted Payment if unless at the time of such Restricted Payment or immediately and after giving effect theretothereto (a) no Event of Default and no event that, (i) a Default after the giving of notice or lapse of time or both, would become an Event of Default shall have Default, has occurred and be is continuing, (iib) the Company is not able to incur could Incur at least $1.00 1 of additional Indebtedness other than Permitted Indebtedness in compliance with Debt under Section 4.12, or 1008(a) and (iiic) the aggregate amount of all Restricted Payments including such proposed made by the Company, its Restricted Payment made after June 30Subsidiaries and the Eligible Joint Ventures (the amount so made, 2006if other than in cash, including, the Fair Market Value as to be determined reasonably and in good faith by the Chief Financial Officer, as evidenced by an Officers' Certificate, or, if more than $30 million, by the Board of Managers of the Company of non-cash amounts constituting Restricted Payments shall exceed Directors, as evidenced by a Board resolution) after March 24, 1994, is less than the sum of: (wwithout duplication) of (i) 50% of the cumulative Adjusted Consolidated Net Income (or if cumulative Consolidated Net Income shall be a loss, minus 100% of such loss) of the Company earned from June 30for the period (taken as one accounting period) beginning on the first day of the first fiscal quarter that begins after March 24, 2006 through 1994 and ending on the last day of the last full fiscal quarter immediately preceding prior to the date the Restricted Payment occurs (the “Reference Date”) (treating of such calculation, provided that if throughout any fiscal quarter within such period as the Ratings Categories applicable to the Securities are rated Investment Grade by S&P and Mxxxx'x (or if both do not make a single accounting periodrating of the Securities publicly available, an equivalent Rating Category is made publicly available by another Rating Agency); , then 100% (instead of 50%) of the Adjusted Consolidated Net Income (if more than zero) with respect to such fiscal quarter shall be included pursuant to this clause (i), and provided further that if Adjusted Consolidated Net Income for such period is less than zero, then minus 100% of the amount of such net loss, plus (xii) 100% of the aggregate net cash proceeds received by the Company from any Person and after March 24, 1994 from (other than a Subsidiary of the CompanyA) from the issuance and sale subsequent (other than to June 30a Restricted Subsidiary or an Eligible Joint Venture) of its Capital Stock (excluding Redeemable Stock, 2006 but including Capital Stock other than Redeemable Stock issued upon conversion of, or in exchange for Redeemable Stock or securities other than its Capital Stock), (B) the issuance and sale or the exercise of Qualified warrants, options and rights to purchase its Capital Stock (other than Redeemable Stock) and (C) the issuance and sale of convertible Debt upon the conversion of such convertible Debt into Capital Stock (other than Redeemable Stock), but excluding the net proceeds from the issuance, sale, exchange, conversion or other disposition of its Capital Stock (I) that is convertible (whether at the option of the Company or the holder thereof or upon the happening of any event) into (x) any security other than its Capital Stock or (y) its Redeemable Stock or (II) that is Capital Stock referred to in clauses (ii) and (iii) of the definition of "Permitted Payment", plus (iii) the net reduction in Investments of the types specified in clauses (iv) and (v) of the definition of "Restricted Payment" that result from payments of interest on Debt, dividends, or repayment of loans or advances, the proceeds of the sale or disposition of the Investment or other return of the amount of the original Investment to the Company, the Restricted Subsidiary or the Eligible Joint Venture that made the original Investment from the Person in which such Investment was made, provided that (x) the aggregate amount of such payments shall not exceed the amount of the original Investment by the Company or such Restricted Subsidiary that reduced the amount available pursuant to this clause (c) for making Restricted Payments and (y) such payments may be added pursuant to this clause (iii) only to the extent such payments are not included in the calculation of Adjusted Consolidated Net Income, provided further that if Investments of the types specified in clauses (iv) and (v) of the Definition of "Restricted Payment" have been made in any Person and such Person thereafter becomes a Restricted Subsidiary or an Eligible Joint Venture, then the aggregate amount of such Investment (to the extent that they have reduced the amount available pursuant to this clause (c) for making Restricted Payments), net of the amounts previously added pursuant to this clause (iii), may be added to the amount available for making Restricted Payments, plus (iv) an amount equal to the principal amount of Debt of the Company extinguished in connection with the conversion into Common Stock of the Company (other than Specified Venture Capital Stock) or debt securities of the Company that are, upon issuance, convertible into or exchangeable for Qualified Capital Stock of the Company, but only when 's 5% Convertible Subordinated Debentures due 2000 and to the extent such debt securities are converted into or exchanged for Qualified Capital Stock of the Company; plus (y) without duplication of any amounts included in its 9.5% Convertible Subordinated Debenture due 2003. The foregoing clause (iii)(xc) above, 100% of the aggregate net cash proceeds of any equity contribution received by the Company from a holder of the Company’s Capital Stock subsequent to June 30, 2006; plus (z) $400 million. Notwithstanding the foregoing, the provisions set forth in the immediately preceding paragraph shall not prohibit: (1) prevent the payment of any dividend within 60 days after the date of its declaration of if such dividend if the dividend would could have been permitted made on the date of declaration; (2) the acquisition of any shares of Capital Stock its declaration without violation of the Company, either (i) solely in exchange for shares of Qualified Capital Stock of the Company or (ii) if no Default or Event of Default shall have occurred and be continuing, through the application of net cash proceeds of a substantially concurrent Equity Offering (other than to a Subsidiary of the Company); (3) the acquisition or repayment of any Indebtedness of the Company that is subordinate or junior in right of payment to the Notes either (i) solely in exchange for shares of Qualified Capital Stock of the Company, or (ii) if no Default or Event of Default shall have occurred and be continuing, through the application of net cash proceeds of (A) a substantially concurrent Equity Offering or (B) incurrence for cash of Refinancing Indebtedness, (in the case of (A) or (B), other than to a Subsidiary of the Company); (4) so long as no Default or Event of Default shall have occurred and be continuing, repurchases by the Company of, or dividends to a Huntsman Parent Company to permit repurchases by a Huntsman Parent Company of, Common Stock of the Company or a Huntsman Parent Company from employees of the Company or any of its Subsidiaries or their authorized representatives upon the death, disability or termination of employment of such employees, in an aggregate amount not to exceed $25 million in any calendar year; (5) the redemption or repurchase of any Common Stock of the Company held by a Restricted Subsidiary of the Company which obtained such Common Stock directly from the Company; (6) distributions to any Huntsman Parent Company in accordance with the Tax Sharing Agreement; (7) payments to any Huntsman Parent Company for legal, audit and other expenses directly relating to the administration of such Huntsman Parent Company not to exceed $10.0 million in any fiscal year; (8) the payment of consideration by a third party to equity holders of the Company; (9) additional Restricted Payments in an aggregate amount not to exceed $225 million since the Designated Date; (10) the payment of dividends or distributions to any Huntsman Parent Company which are contemporaneously applied to pay dividends on common stock of the Huntsman Public Parent at a rate not to exceed $0.40 per share per annum (such amount to be appropriately adjusted to reflect any stock split, reverse stock split, stock dividend, stock issuance or similar transactions made after the Designated Date so that the aggregate amount of dividends payable after such transaction is the same as the amount payable immediately prior to such transaction); (11) payments of dividends on Disqualified Capital Stock issued in accordance with Section 4.12; and (12) if the Consolidated Leverage Ratio of the Company, calculated after giving pro forma effect to any repurchase under this clause (12), is less than 2.5 to 1.0, then the Company may repurchase or dividend to a Huntsman Parent Company to repurchase, up to an aggregate of $250 million of Common Stock of a Huntsman Parent Company. In determining the aggregate amount of Restricted Payments made subsequent to the Designated Date in accordance with clause (iii) of the immediately preceding paragraph, cash amounts expended pursuant to clauses (1), (2), (3)(ii)(A) and (4) shall be included in such calculation and Restricted Payments made pursuant to the other clauses provisions of this paragraph shall not be so included. Not later than the date of making any Restricted Payment pursuant to clause (iii) of the second preceding paragraph or clause (9) of the immediately preceding paragraph, the Company shall deliver to the Trustee an officers’ certificate stating that such Restricted Payment complies with this Indenture and setting forth in reasonable detail the basis upon which the required calculations were computed, which calculations may be based upon the Company’s quarterly financial statements last provided to the Trustee pursuant to Section 4.091010(a).
Appears in 1 contract
Samples: Indenture (Calenergy Co Inc)
Limitation on Restricted Payments. The Company shall not, and shall not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, make any Restricted Payment if at the time of if, after giving effect to such Restricted Payment or immediately after giving effect theretoon a PRO FORMA basis, (i1) a Default or an Event of Default shall have occurred and be continuing, (ii2) the Company is not able permitted to incur at least $1.00 of additional Indebtedness other than Permitted Indebtedness pursuant to the Debt Incurrence Ratio in compliance with paragraph (a) of Section 4.124.10, or (iii3) the aggregate amount of all Restricted Payments made by the Company and its Subsidiaries, including after giving effect to such proposed Restricted Payment made Payment, from and after June 30the Issue Date, 2006, including, would exceed the Fair Market Value as determined reasonably and in good faith by the Board sum of Managers (a) Consolidated EBITDA of the Company of non-cash amounts constituting Restricted Payments shall exceed and its Consolidated Subsidiaries for the sum of: period (w) 50% taken as one accounting period), commencing on the first day of the cumulative first full fiscal quarter commencing after the Issue Date, to and including the last day of the fiscal quarter ended immediately prior to the date of each such calculation (or, in the event Consolidated Net Income (or if cumulative Consolidated Net Income shall be EBITDA for such period is a lossdeficit, then minus 100% of such lossdeficit), minus (b) of 1.5 times the Company earned from June 30Consolidated Fixed Charges over such period, 2006 through the last day of the last full fiscal quarter immediately preceding the date the Restricted Payment occurs (the “Reference Date”) (treating such period as a single accounting period); plus (xc) 100% of the aggregate net cash proceeds Net Cash Proceeds received by the Company from any Person the sale of its Qualified Capital Stock or Indebtedness to the extent subsequently converted into Qualified Capital Stock (other than a Subsidiary of the Company) from the issuance and sale subsequent to June 30, 2006 of Qualified Capital Stock of the Company (other than Specified Venture Capital Stock) or debt securities of the Company that are, upon issuance, convertible into or exchangeable for Qualified Capital Stock of the Company, but only when and to the extent such debt securities are converted into or exchanged for Qualified Capital Stock of the Company; 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 the Company from a holder of the Company’s Capital Stock subsequent to June 30, 2006; plus (z) $400 million. Notwithstanding the foregoing, the provisions set forth in the immediately preceding paragraph shall 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) the acquisition of any shares of Capital Stock of the Company, either (i) solely in exchange for shares of Qualified Capital Stock of the Company or (ii) if no Default or Event of Default shall have occurred and be continuing, through the application of net cash proceeds of a substantially concurrent Equity Offering (other than to a Subsidiary of the Company); Company and (3ii) to the extent applied in connection with a Qualified Exchange) or the fair market value (as determined by the Board of Directors reasonably and in good faith) of securities of the Parent issued in connection with an acquisition by the Company or any of its Subsidiaries, in each case after the Issue Date, plus (d) the acquisition net reductions in Investments (other than reductions in Permitted Investments) in any Person resulting from payments of interest on Indebtedness, dividends, repayments of loans or repayment from designations of any Indebtedness Unrestricted Subsidiaries as Subsidiaries, valued in each case as provided in the definition of "Investment," not to exceed the amount of Investments previously made by the Company and its Subsidiaries in such Person, plus (e) $15 million. The preceding paragraph, however, will not prohibit (w) payments in accordance with "Use of Proceeds" section of the Company that prospectus, dated October [____], 1996, which is subordinate or junior in right of payment to the Notes either (i) solely in exchange for shares of Qualified Capital Stock part of the Company's Registration Statement on Form S-1, or (iix) if no Default or Event repurchases of Default shall have occurred and be continuing, through Capital Stock out of the application of net cash proceeds of (A) a substantially concurrent Equity Offering or (B) incurrence for cash of Refinancing Indebtedness, (any "key man" life insurance policies on Xxxxxx X. Xxxxx existing on the Issue Date and described in the case Prospectus and additional repurchases of (A) or (B), other than to a Subsidiary of the Company); (4) so long as no Default or Event of Default shall have occurred and be continuing, repurchases by the Company of, or dividends to a Huntsman Parent Company to permit repurchases by a Huntsman Parent Company of, Common Capital Stock of the Company or a Huntsman Parent Company from employees of the Company or any of its Subsidiaries or their authorized representatives upon the death, disability or termination of employment of such employees, in an aggregate amount to all employees not to exceed $25 1 million per year or $2 million in any calendar year; the aggregate on and after the Issue Date, (5y) the redemption a Qualified Exchange, or repurchase of any Common Stock of the Company held by a Restricted Subsidiary of the Company which obtained such Common Stock directly from the Company; (6) distributions to any Huntsman Parent Company in accordance with the Tax Sharing Agreement; (7) payments to any Huntsman Parent Company for legal, audit and other expenses directly relating to the administration of such Huntsman Parent Company not to exceed $10.0 million in any fiscal year; (8) the payment of consideration by a third party to equity holders of the Company; (9) additional Restricted Payments in an aggregate amount not to exceed $225 million since the Designated Date; (10z) the payment of dividends or distributions any dividend on Qualified Capital Stock within 60 days after the date of its declaration if such dividend could have been made on the date of such declaration in compliance with the foregoing provisions. The full amount of any Restricted Payment made pursuant to any Huntsman Parent Company which are contemporaneously applied to pay dividends on common stock the foregoing clauses (x) and (z) of the Huntsman Public Parent at a rate not to exceed $0.40 per share per annum (such amount to immediately preceding sentence, however, will be appropriately adjusted to reflect any stock split, reverse stock split, stock dividend, stock issuance or similar transactions made after deducted in the Designated Date so that the aggregate amount calculation of dividends payable after such transaction is the same as the amount payable immediately prior to such transaction); (11) payments of dividends on Disqualified Capital Stock issued in accordance with Section 4.12; and (12) if the Consolidated Leverage Ratio of the Company, calculated after giving pro forma effect to any repurchase under this clause (12), is less than 2.5 to 1.0, then the Company may repurchase or dividend to a Huntsman Parent Company to repurchase, up to an aggregate of $250 million of Common Stock of a Huntsman Parent Company. In determining the aggregate amount of Restricted Payments available to be made subsequent referred to the Designated Date in accordance with clause (iii3) of the immediately preceding paragraph, cash amounts expended pursuant to clauses (1), (2), (3)(ii)(A) and (4) shall be included in such calculation and Restricted Payments made pursuant to the other clauses paragraph of this paragraph shall not be so included. Not later than the date of making any Restricted Payment pursuant to clause (iii) of the second preceding paragraph or clause (9) of the immediately preceding paragraph, the Company shall deliver to the Trustee an officers’ certificate stating that such Restricted Payment complies with this Indenture and setting forth in reasonable detail the basis upon which the required calculations were computed, which calculations may be based upon the Company’s quarterly financial statements last provided to the Trustee pursuant to Section 4.094.3.
Appears in 1 contract
Samples: Universal Outdoor Inc
Limitation on Restricted Payments. The Company shall not, and the Company shall not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, make any Restricted Payment if Payment, if, at the time of such Restricted Payment or immediately after giving effect theretothereto on a pro forma basis, (ia) a the Company's Consolidated Fixed Charge Coverage Ratio does not exceed 3.5 to 1, (b) the Company's Net Worth is not equal to or greater than $170 million, (c) Default or an Event of Default shall have occurred and would occur or be continuing, (ii) the Company is not able to incur at least $1.00 of additional Indebtedness other than Permitted Indebtedness in compliance with Section 4.12, or (iiid) the aggregate amount of all Restricted Payments made by the Company and all of its Subsidiaries, including such proposed Restricted Payment and all payments made pursuant to the proviso at the end of this sentence (if not made in cash, then the fair market value of any property used therefor), from and after June 30the Issue Date and on or prior to the date of such Restricted Payment, 2006, including, the Fair Market Value as determined reasonably and in good faith by the Board shall exceed an amount equal to (i) 25% of Managers Consolidated Net Income of the Company accrued for the period (taken as one accounting period) from the first full fiscal quarter that commenced after the Issue Date to and including the fiscal quarter ended immediately prior to the date of non-cash amounts constituting Restricted Payments shall exceed each calculation for which financial statements are available (or, if the sum of: (w) 50% of the cumulative Company's Consolidated Net Income (or if cumulative Consolidated Net Income shall be for such period is a lossdeficit, then minus 100% of such loss) of the Company earned from June 30deficit), 2006 through the last day of the last full fiscal quarter immediately preceding the date the Restricted Payment occurs minus (the “Reference Date”) (treating such period as a single accounting period); plus (xii) 100% of the aggregate net cash proceeds received by the Company from amount of any Person (write-downs, write-offs, other than a Subsidiary of negative reevaluations, and other negative extraordinary charges not otherwise reflected in the Company) from 's Consolidated Net Income during such period, provided, that the issuance and sale subsequent to June 30, 2006 of Qualified Capital Stock of the Company (other than Specified Venture Capital Stock) or debt securities of the Company that are, upon issuance, convertible into or exchangeable for Qualified Capital Stock of the Company, but only when and to the extent such debt securities are converted into or exchanged for Qualified Capital Stock of the Company; 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 the Company from a holder of the Company’s Capital Stock subsequent to June 30, 2006; plus (z) $400 million. Notwithstanding the foregoing, the provisions set forth in the immediately preceding paragraph foregoing clauses shall not prohibit: (1) prohibit the payment of any dividend within 60 days after the date of its declaration of if such dividend if the dividend would could have been permitted made on the date of declaration; (2) the acquisition of any shares of Capital Stock of the Company, either (i) solely its declaration in exchange for shares of Qualified Capital Stock of the Company or (ii) if no Default or Event of Default shall have occurred and be continuing, through the application of net cash proceeds of a substantially concurrent Equity Offering (other than to a Subsidiary of the Company); (3) the acquisition or repayment of any Indebtedness of the Company that is subordinate or junior in right of payment to the Notes either (i) solely in exchange for shares of Qualified Capital Stock of the Company, or (ii) if no Default or Event of Default shall have occurred and be continuing, through the application of net cash proceeds of (A) a substantially concurrent Equity Offering or (B) incurrence for cash of Refinancing Indebtedness, (in the case of (A) or (B), other than to a Subsidiary of the Company); (4) so long as no Default or Event of Default shall have occurred and be continuing, repurchases by the Company of, or dividends to a Huntsman Parent Company to permit repurchases by a Huntsman Parent Company of, Common Stock of the Company or a Huntsman Parent Company from employees of the Company or any of its Subsidiaries or their authorized representatives upon the death, disability or termination of employment of such employees, in an aggregate amount not to exceed $25 million in any calendar year; (5) the redemption or repurchase of any Common Stock of the Company held by a Restricted Subsidiary of the Company which obtained such Common Stock directly from the Company; (6) distributions to any Huntsman Parent Company in accordance compliance with the Tax Sharing Agreement; (7) payments to any Huntsman Parent Company for legal, audit and other expenses directly relating to the administration of such Huntsman Parent Company not to exceed $10.0 million in any fiscal year; (8) the payment of consideration by a third party to equity holders of the Company; (9) additional Restricted Payments in an aggregate amount not to exceed $225 million since the Designated Date; (10) the payment of dividends or distributions to any Huntsman Parent Company which are contemporaneously applied to pay dividends on common stock of the Huntsman Public Parent at a rate not to exceed $0.40 per share per annum (such amount to be appropriately adjusted to reflect any stock split, reverse stock split, stock dividend, stock issuance or similar transactions made after the Designated Date so that the aggregate amount of dividends payable after such transaction is the same as the amount payable immediately prior to such transaction); (11) payments of dividends on Disqualified Capital Stock issued in accordance with Section 4.12; and (12) if the Consolidated Leverage Ratio of the Company, calculated after giving pro forma effect to any repurchase under this clause (12), is less than 2.5 to 1.0, then the Company may repurchase or dividend to a Huntsman Parent Company to repurchase, up to an aggregate of $250 million of Common Stock of a Huntsman Parent Company. In determining the aggregate amount of Restricted Payments made subsequent to the Designated Date in accordance with clause (iii) of the immediately preceding paragraph, cash amounts expended pursuant to clauses (1), (2), (3)(ii)(A) and (4) shall be included in such calculation and Restricted Payments made pursuant to the other clauses of this paragraph shall not be so included. Not later than the date of making any Restricted Payment pursuant to clause (iii) of the second preceding paragraph or clause (9) of the immediately preceding paragraph, the Company shall deliver to the Trustee an officers’ certificate stating that such Restricted Payment complies with this Indenture and setting forth in reasonable detail the basis upon which the required calculations were computed, which calculations may be based upon the Company’s quarterly financial statements last provided to the Trustee pursuant to Section 4.09foregoing provisions.
Appears in 1 contract
Samples: Transamerican Refining Corp
Limitation on Restricted Payments. The Company and the Guarantors shall not, and shall not cause or permit any of its Restricted their Subsidiaries to, directly or indirectly, make any Restricted Payment if at the time of if, after giving effect to such Restricted Payment or immediately after giving effect theretoon a pro forma basis, (i1) a Default or an Event of Default shall have occurred and be continuing, (ii2) the Company is not able permitted to incur at least $1.00 of additional Indebtedness other than Permitted Indebtedness pursuant to the Debt Incurrence Ratio in compliance with Section 4.12, 4.11 or (iii3) the aggregate amount of all Restricted Payments made by the Company and its Subsidiaries, including after giving effect to such proposed Restricted Payment made Payment, from and after June 30the Issue Date, 2006, including, the Fair Market Value as determined reasonably and in good faith by the Board of Managers of the Company of non-cash amounts constituting Restricted Payments shall would exceed the sum of: of (wa) 50% of the cumulative aggregate Consolidated Net Income of the Company for the period (or if cumulative taken as one accounting period), commencing on the first day of the first full fiscal quarter commencing after the Issue Date, to and including the last day of the fiscal quarter ended immediately prior to the date of each such calculation (or, in the event Consolidated Net Income shall be for such period is a lossdeficit, then minus 100% of such lossdeficit), plus (b) the aggregate Net Cash Proceeds received by the Company from the sale of the Company's Qualified Capital Stock (other than (i) to a Subsidiary of the Company and (ii) to the extent applied in connection with a Qualified Exchange), after the Issue Date. The foregoing clauses (2) and (3) of the Company earned from June 30, 2006 through the last day of the last full fiscal quarter immediately preceding paragraph, however, shall not prohibit (t) pro rata dividends and other distributions on Equity Interests of a Subsidiary by such Subsidiary, (u) Restricted Investments, provided that, after giving pro forma effect to any such Investment, the aggregate amount of all such Investments made on or after the Issue Date that are outstanding (after giving effect to any such Investments that are returned to the Company or the Subsidiary that made such prior Investment, without restriction, in cash on or prior to the date the Restricted Payment occurs (the “Reference Date”of any such calculation) (treating such period as a single accounting period); at any time does not exceed $10.0 million plus (xi) 100% of the aggregate net any cash proceeds received by the Company from or any Person (other than a Subsidiary of the Company) Guarantor from the issuance Packer Avenue Proceeding and sale subsequent to June 30, 2006 of Qualified Capital Stock of (ii) the Company (other than Specified Venture Capital Stock) or debt securities of the Company that are, upon issuance, convertible into or exchangeable for Qualified Capital Stock of the Company, but only when and to the extent such debt securities are converted into or exchanged for Qualified Capital Stock of the Company; plus (y) without duplication of any amounts included in clause (iii)(x) above, 100% of the aggregate net cash proceeds of any equity contribution Net Cash Proceeds received by the Company from the sale (other than to any of its Affiliates, to the extent used to effect a holder Qualified Exchange, or to the extent used to make Restricted Payments other than pursuant to this clause (u)) of its Qualified Capital Stock after the Issue Date, (v)(i) payments pursuant to the Employee Stock Plan and (ii) repurchases of Capital Stock from employees of the Company’s Capital Stock subsequent Company or its Subsidiaries upon their death (or from such employees' estate or heirs in the case of any such death) or disability or the termination of their employment, such payments under (i) and (ii) collectively not to June 30exceed $15.0 million in the aggregate on and after the Issue Date and (w) payments required to be made under put rights pursuant to the TNX Shareholders Agreement not to exceed $10.0 million in the aggregate, 2006; plus (z) $400 million. Notwithstanding the foregoing, and the provisions set forth in of the immediately preceding paragraph shall not prohibit: prohibit (1x) a Qualified Exchange, (y) the payment of any dividend on Qualified Capital Stock within 60 days after the date of its declaration of if such dividend if the dividend would could have been permitted made on the date of declaration; such declaration in compliance with the foregoing provisions and (2) the acquisition of any shares of Capital Stock of the Company, either (i) solely in exchange for shares of Qualified Capital Stock of the Company or (ii) if no Default or Event of Default shall have occurred and be continuing, through the application of net cash proceeds of a substantially concurrent Equity Offering (other than to a Subsidiary of the Company); (3) the acquisition or repayment of any Indebtedness of the Company that is subordinate or junior in right of payment to the Notes either (i) solely in exchange for shares of Qualified Capital Stock of the Company, or (ii) if no Default or Event of Default shall have occurred and be continuing, through the application of net cash proceeds of (A) a substantially concurrent Equity Offering or (B) incurrence for cash of Refinancing Indebtedness, (in the case of (A) or (B), other than to a Subsidiary of the Company); (4z) so long as no Default the Company is a Subchapter S Corporation or Event of Default shall have occurred and be continuingsubstantially similar pass-through entity for federal income tax purposes, repurchases cash distributions paid by the Company of, or dividends to a Huntsman Parent Company its shareholders from time to permit repurchases time in amounts permitted by a Huntsman Parent Company of, Common Stock of the Company or a Huntsman Parent Company from employees of the Company or any of its Subsidiaries or their authorized representatives upon the death, disability or termination of employment of such employees, in an aggregate amount not to exceed $25 million in any calendar year; (5) the redemption or repurchase of any Common Stock of the Company held by a Restricted Subsidiary of the Company which obtained such Common Stock directly from the Company; (6) distributions to any Huntsman Parent Company and otherwise in accordance with the definition of Permitted Tax Sharing Agreement; (7) payments to Distribution. The full amount of any Huntsman Parent Company for legal, audit and other expenses directly relating Restricted Payment made pursuant to the administration of such Huntsman Parent Company foregoing clauses (t), (u), (v) and (y) (but not pursuant to exceed $10.0 million in any fiscal year; clauses (8) the payment of consideration by a third party to equity holders w), (x) and (z)) of the Company; (9) additional Restricted Payments immediately preceding sentence, however, shall be deducted in an aggregate amount not to exceed $225 million since the Designated Date; (10) the payment calculation of dividends or distributions to any Huntsman Parent Company which are contemporaneously applied to pay dividends on common stock of the Huntsman Public Parent at a rate not to exceed $0.40 per share per annum (such amount to be appropriately adjusted to reflect any stock split, reverse stock split, stock dividend, stock issuance or similar transactions made after the Designated Date so that the aggregate amount of dividends payable after such transaction is the same as the amount payable immediately prior to such transaction); (11) payments of dividends on Disqualified Capital Stock issued in accordance with Section 4.12; and (12) if the Consolidated Leverage Ratio of the Company, calculated after giving pro forma effect to any repurchase under this clause (12), is less than 2.5 to 1.0, then the Company may repurchase or dividend to a Huntsman Parent Company to repurchase, up to an aggregate of $250 million of Common Stock of a Huntsman Parent Company. In determining the aggregate amount of Restricted Payments available to be made subsequent referred to the Designated Date in accordance with clause (iii3) of the immediately preceding paragraph. For purposes of this Section 4.3, cash amounts expended pursuant to clauses (1)the amount of any Restricted Payment, (2)if other than in cash, (3)(ii)(A) and (4) shall be included the fair market value thereof, as determined in such calculation and Restricted Payments made pursuant to the other clauses of this paragraph shall not be so included. Not later than the date of making any Restricted Payment pursuant to clause (iii) good faith reasonable judgment of the second preceding paragraph or clause (9) Board of Directors of the immediately preceding paragraphCompany. Additionally, at the time of each Restricted Payment, the Company shall deliver an Officers' Certificate to the Trustee an officers’ certificate describing in reasonable detail the nature of such Restricted Payment, stating the amount of such Restricted Payment, stating in reasonable detail the provisions of this Indenture pursuant to which such Restricted Payment was made and certifying that such Restricted Payment complies was made in compliance with the terms of this Indenture and setting forth in reasonable detail the basis upon which the required calculations were computed, which calculations may be based upon the Company’s quarterly financial statements last provided to the Trustee pursuant to Section 4.09Indenture.
Appears in 1 contract
Samples: NPR Inc
Limitation on Restricted Payments. (a) The Company shall not, and shall not cause or permit any of its Restricted Subsidiaries toSubsidiary, directly or indirectly, to, make any a Restricted Payment if at the time of the Company or such Restricted Payment or immediately after giving effect thereto, Subsidiary makes such Restricted Payment: (i1) a Default or an Event of Default shall have occurred and be continuing, continuing (iior would result therefrom); (2) the Company is not able to incur at least Incur an additional $1.00 of additional Indebtedness other than Permitted Indebtedness in compliance with pursuant to paragraph (a) of Section 4.12, 4.06; or (iii3) the aggregate amount of such Restricted Payment and all other Restricted Payments including such proposed Restricted Payment made after June 30, 2006, including, since the Fair Market Value as determined reasonably and in good faith by the Board of Managers of the Company of non-cash amounts constituting Restricted Payments shall Issue Date would exceed the sum of: (wA) 5025% of the cumulative Consolidated Net Income accrued during the period (or if cumulative treated as one accounting period) from the beginning of the fiscal quarter during which the Issue Date occurs to the end of the most recent fiscal quarter prior to the date of such Restricted Payment for which financial statements are available (or, in case such Consolidated Net Income shall be a lossdeficit, minus 100% of such loss) of the Company earned from June 30, 2006 through the last day of the last full fiscal quarter immediately preceding the date the Restricted Payment occurs (the “Reference Date”) (treating such period as a single accounting perioddeficit); plus (xB) 100% of the aggregate net cash proceeds Net Cash Proceeds received by the Company from any Person the issuance or sale of its Capital Stock (other than a Subsidiary of the CompanyDisqualified Stock) from the issuance and sale subsequent to June 30, 2006 of Qualified Capital Stock of the Company Issue Date (other than Specified Venture Capital Stock) an issuance or debt securities of the Company that are, upon issuance, convertible into or exchangeable for Qualified Capital Stock of the Company, but only when and to the extent such debt securities are converted into or exchanged for Qualified Capital Stock of the Company; 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 the Company from a holder of the Company’s Capital Stock subsequent to June 30, 2006; plus (z) $400 million. Notwithstanding the foregoing, the provisions set forth in the immediately preceding paragraph shall 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) the acquisition of any shares of Capital Stock of the Company, either sale (i) solely in exchange for shares occurring substantially contemporaneously with the issuance of Qualified Capital Stock the Notes, (ii) to a Subsidiary of the Company or (iiiii) if no Default to an employee stock ownership plan or Event of Default shall have occurred and be continuing, through the application of net cash proceeds of a substantially concurrent Equity Offering (other than to a Subsidiary of the Company); (3) the acquisition or repayment of any Indebtedness of the Company that is subordinate or junior in right of payment to the Notes either (i) solely in exchange for shares of Qualified Capital Stock of the Company, or (ii) if no Default or Event of Default shall have occurred and be continuing, through the application of net cash proceeds of (A) a substantially concurrent Equity Offering or (B) incurrence for cash of Refinancing Indebtedness, (in the case of (A) or (B), other than to a Subsidiary of the Company); (4) so long as no Default or Event of Default shall have occurred and be continuing, repurchases trust established by the Company of, or dividends to a Huntsman Parent Company to permit repurchases by a Huntsman Parent Company of, Common Stock of the Company or a Huntsman Parent Company from employees of the Company or any of its Subsidiaries for the benefit of their employees except to the extent that the funds used by such plan or their authorized representatives upon the death, disability or termination of employment of such employees, in an aggregate amount not trust are attributable to exceed $25 million in any calendar yearem- 54 -45- ployee contributions); (5C) the redemption or repurchase of any Common Stock amount by which Indebtedness of the Company held is reduced on the Company's balance sheet upon the conversion or exchange (other than by a Restricted Subsidiary of the Company which obtained such Common Stock directly from the Company; (6) distributions to any Huntsman Parent Company in accordance with the Tax Sharing Agreement; (7) payments to any Huntsman Parent Company for legal, audit and other expenses directly relating subsequent to the administration Issue Date, of such Huntsman Parent Company not to exceed $10.0 million in any fiscal year; (8) the payment of consideration by a third party to equity holders Indebtedness of the Company; Company convertible or exchangeable for Capital Stock (9other than Disqualified Stock) additional Restricted Payments in an aggregate amount not to exceed $225 million since the Designated Date; (10) the payment of dividends or distributions to any Huntsman Parent Company which are contemporaneously applied to pay dividends on common stock of the Huntsman Public Parent at a rate not to exceed $0.40 per share per annum Company (such amount to be appropriately adjusted to reflect any stock split, reverse stock split, stock dividend, stock issuance or similar transactions made after less the Designated Date so that the aggregate amount of dividends payable after any cash, or the fair value of any other property, distributed by the Company upon such transaction is the same as the amount payable immediately prior to such transactionconversion of exchange); (11) payments of dividends on Disqualified Capital Stock issued in accordance with Section 4.12; and (12D) if an amount equal to the Consolidated Leverage Ratio sum of (i) the net reduction in Investments in any Person resulting from dividends or repayments of loans or advances, in each case to the Company or any Restricted Subsidiary from such Person or from the sale for cash or other liquidation or repayment in cash, in each case the proceeds of which are received by the Company or any Restricted Subsidiary, and (ii) the portion (proportionate to the Company's equity interest in such Subsidiary) of the Companyfair market value of the net assets of an Unrestricted Subsidiary at the time such Unrestricted Subsidiary is designated a Restricted Subsidiary; provided, calculated after giving pro forma effect to any repurchase under however, that the foregoing sum in this clause (12)D) shall not exceed, is less than 2.5 to 1.0in the case of any Person, then the amount of Investments made since the Issue Date by the Company may repurchase or dividend to any Restricted Subsidiary in such Person and treated as a Huntsman Parent Company to repurchaseRestricted Payment. ever, up to an aggregate that such purchases shall be excluded from the calculation of $250 million of Common Stock of a Huntsman Parent Company. In determining the aggregate amount of Restricted Payments made subsequent to the Designated Date in accordance with clause (iii) of the immediately preceding paragraph, cash amounts expended pursuant to clauses (1), (2), (3)(ii)(A) and (4) shall be included in such calculation and Restricted Payments made pursuant to the other clauses of this paragraph shall not be so includedPayments. Not later than the date of making any Restricted Payment pursuant to clause (iii) of the second preceding paragraph or clause (9) of the immediately preceding paragraphPayment, the Company shall deliver to the Trustee an officers’ certificate Officers' Certificate stating that such Restricted Payment complies with this Indenture is permitted and setting forth in reasonable detail the basis upon which the calculations required calculations by this Section 4.07 were computed, which calculations may be based upon the Company’s quarterly 's latest available financial statements last provided statements, and that no Default or Event of Default exists and is continuing and no Default or Event of Default will occur immediately after giving effect to the Trustee pursuant to Section 4.09any Restricted Payments.
Appears in 1 contract
Samples: Cityscape Corp
Limitation on Restricted Payments. The Company shall not, and shall not cause or permit any each of its Restricted Subsidiaries not to, directly or indirectly, make any Restricted Payment if if, at the time of such proposed Restricted Payment Payment, or immediately after giving effect thereto, (ia) a Default or an Event of Default shall have occurred and be continuing, (iib) the Company is could not able to incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness in compliance with Indebtedness) pursuant to Section 4.12, 5.12 or (iiic) 62 -53- the aggregate amount of expended for all Restricted Payments Payments, including such proposed Restricted Payment made after June 30(the amount of any Restricted Payment, 2006if other than cash, includingto be the fair market value thereof at the date of payment, the Fair Market Value as determined reasonably and in good faith by the Board of Managers Directors of the Company of non-cash amounts constituting Restricted Payments Company), subsequent to June 14, 1995, shall exceed the sum of: of (wi) 50% of the cumulative aggregate Consolidated Net Income (or if cumulative such aggregate Consolidated Net Income shall be is a loss, minus 100% of such loss) of the Company earned from subsequent to June 3014, 2006 through 1995 and on or prior to the last day date of the last full fiscal quarter immediately preceding the date the proposed Restricted Payment occurs (the “"Reference Date”) (treating such period as a single accounting period"); , plus (xii) 100% of the aggregate net cash proceeds Net Proceeds received by the Company from any Person person (other than a Subsidiary of the Company) from the issuance and sale (including upon exchange or conversion for other securities of the Company) subsequent to June 3014, 2006 1995 and on or prior to the Reference Date of Qualified Capital Stock of the Company (other than Specified Venture Capital Stockexcluding (A) or debt securities of the Company that are, upon issuance, convertible into or exchangeable for Qualified Capital Stock of paid as a dividend on any Capital Stock or as interest on any Indebtedness and (B) any Net Proceeds from issuances and sales financed directly or indirectly using funds borrowed from the CompanyCompany or any Subsidiary, but only when until and to the extent such debt securities are converted into or exchanged for Qualified Capital Stock of the Company; borrowing is repaid), plus (yiii) without duplication of any amounts included in clause (iii)(x) above, 100% of the aggregate net cash proceeds of any equity contribution received by the Company from a holder of as capital contributions to the Company’s Capital Stock subsequent to Company after June 3014, 2006; 1995, plus (ziv) $400 25 million. Notwithstanding the foregoing, if no Default or Event of Default shall have occurred and be continuing as a consequence thereof, the provisions set forth in the immediately preceding paragraph shall will not prohibit: prevent (1) the payment of any dividend within 60 days after the date of its declaration of such dividend if the dividend would have been permitted on the date of declaration; , (2) the acquisition of any shares of Capital Stock of the CompanyCompany or the repurchase, either (i) solely redemption or other repayment of any Subordinated Indebtedness in exchange for shares of Qualified Capital Stock or solely out of the Company or (ii) if no Default or Event of Default shall have occurred and be continuing, through the application of net cash proceeds of a the substantially concurrent Equity Offering sale (other than to a Subsidiary Subsidiary) of the Company); (3) the acquisition or repayment of any Indebtedness of the Company that is subordinate or junior in right of payment to the Notes either (i) solely in exchange for shares of Qualified Capital Stock of the Company, (3) the repurchase, redemption or (ii) if no Default other repayment of any Subordinated Indebtedness in exchange for or Event solely out of Default shall have occurred and be continuing, through the application of net cash proceeds of (A) a the substantially concurrent Equity Offering or sale (B) incurrence for cash of Refinancing Indebtedness, (in the case of (A) or (B), other than to a Subsidiary Subsidiary) of Subordinated Indebtedness of the Company); Company with an Average Life equal to or greater than the then remaining Average Life of the Subordinated Indebtedness repurchased, redeemed or repaid and (4) so long as no Default or Event of Default shall have occurred and be continuingPermitted Payments; provided, repurchases by the Company ofhowever, or dividends to a Huntsman Parent Company to permit repurchases by a Huntsman Parent Company of, Common Stock of the Company or a Huntsman Parent Company from employees of the Company or any of its Subsidiaries or their authorized representatives upon the death, disability or termination of employment of such employees, in an aggregate amount not to exceed $25 million in any calendar year; (5) the redemption or repurchase of any Common Stock of the Company held by a Restricted Subsidiary of the Company which obtained such Common Stock directly from the Company; (6) distributions to any Huntsman Parent Company in accordance with the Tax Sharing Agreement; (7) payments to any Huntsman Parent Company for legal, audit and other expenses directly relating to the administration of such Huntsman Parent Company not to exceed $10.0 million in any fiscal year; (8) the payment of consideration by a third party to equity holders of the Company; (9) additional Restricted Payments in an aggregate amount not to exceed $225 million since the Designated Date; (10) the payment of dividends or distributions to any Huntsman Parent Company which are contemporaneously applied to pay dividends on common stock of the Huntsman Public Parent at a rate not to exceed $0.40 per share per annum (such amount to be appropriately adjusted to reflect any stock split, reverse stock split, stock dividend, stock issuance or similar transactions made after the Designated Date so that the aggregate amount declaration of dividends payable after such transaction is the same as the amount payable immediately prior to such transaction); (11) payments of dividends on Disqualified Capital Stock issued in accordance with Section 4.12; and (12) if the Consolidated Leverage Ratio of the Company, calculated after giving pro forma effect to any repurchase under this clause (12), is less than 2.5 to 1.0, then the Company may repurchase or each dividend to a Huntsman Parent Company to repurchase, up to an aggregate of $250 million of Common Stock of a Huntsman Parent Company. In determining the aggregate amount of Restricted Payments made subsequent to the Designated Date paid in accordance with clause (1) above, each acquisition, repurchase, redemption or other repayment made in accordance with, or of the type set forth in, clause (2) above, and each payment described in clause (iii), (iv), (vi) and (vii) of the definition of the term "Permitted Payments" shall each be counted for purposes of computing amounts expended pursuant to subclause (c) in the immediately preceding paragraph, cash and no amounts expended pursuant to clause (3) above or pursuant to clauses (1i), (2ii), (3)(ii)(Av) and (4viii) of the definition of the term "Permitted Payments" shall be included in such calculation and Restricted Payments so counted; provided further that to the extent any payments made pursuant to clause (vi) of the other clauses definition of this paragraph the term "Permitted Payments" are deducted for purposes of computing the Consolidated Net Income of the Company, such payments shall not be so includedcounted for purposes of computing amounts expended as Restricted Payments pursuant to subclause (c) in the immediately preceding paragraph. Not later than the date of Prior to making any Restricted Payment pursuant to clause (iii) under the first paragraph of the second preceding paragraph or clause (9) of the immediately preceding paragraphthis Section 5.03, the Company shall deliver to the Trustee an officers’ certificate stating that such Restricted Payment complies with this Indenture and Officers' Certificate setting forth in reasonable detail the basis upon computation by which the required calculations were computed, which calculations may be based upon the Company’s quarterly financial statements last provided to the Trustee amount available for Restricted Payments pursuant to Section 4.09such paragraph was determined. The Trustee shall have no duty or responsibility to determine the accuracy or correctness of this computation and shall be fully protected in relying on such Officers' Certificate.
Appears in 1 contract
Samples: Bay Area Warehouse Stores Inc
Limitation on Restricted Payments. The Company shall not, and shall not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, make any Restricted Payment if at the time of such Restricted Payment or immediately after giving effect thereto, (i) a Default or an Event of Default shall have occurred and be continuing, (ii) the Company is not able to incur at least $1.00 of additional Indebtedness other than Permitted Indebtedness in compliance with Section 4.12, or (iii) the aggregate amount of Restricted Payments including such proposed Restricted Payment made after June 30January 1, 20062010, including, the Fair Market Value as determined reasonably and in good faith by the Board of Managers of the Company Company) of non-cash amounts constituting Restricted Payments 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 the Company earned from June 30January 1, 2006 2010 through the last day of the last full fiscal quarter immediately preceding 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 the Company from any Person (other than a Subsidiary of the Company) from the issuance and sale subsequent to June 30January 1, 2006 2010 of Qualified Capital Stock of the Company (other than Specified Venture Capital Stock) or debt securities of the Company that are, upon issuance, convertible into or exchangeable for Qualified Capital Stock of the Company, but only when and to the extent such debt securities are converted into or exchanged for Qualified Capital Stock of the Company; 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 the Company from a holder of the Company’s Capital Stock subsequent to June 30January 1, 20062010; plus (z) $400 100 million. Notwithstanding the foregoing, the provisions set forth in the immediately preceding paragraph shall 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) the acquisition of any shares of Capital Stock of the Company, either (i) solely in exchange for shares of Qualified Capital Stock of the Company or (ii) if no Default or Event of Default shall have occurred and be continuing, through the application of net cash proceeds of a substantially concurrent Equity Offering (other than to a Subsidiary of the Company); (3) the acquisition or repayment of any Indebtedness of the Company that is subordinate or junior in right of payment to the Notes either (i) solely in exchange for shares of Qualified Capital Stock of the Company, or (ii) if no Default or Event of Default shall have occurred and be continuing, through the application of net cash proceeds of (A) a substantially concurrent Equity Offering or (B) incurrence for cash of Refinancing Indebtedness, (in the case of (A) or (B), other than to a Subsidiary of the Company); (4) so long as no Default or Event of Default shall have occurred and be continuing, repurchases by the Company of, or dividends to a Huntsman Parent Company to permit repurchases by a Huntsman Parent Company of, Common Stock of the Company or a Huntsman Parent Company from employees of the Company or any of its Subsidiaries or their authorized representatives upon the death, disability or termination of employment of such employees, in an aggregate amount not to exceed $25 million in any calendar year; (5) the redemption or repurchase of any Common Stock of the Company held by a Restricted Subsidiary of the Company which obtained such Common Stock directly from the Company; (6) distributions to any Huntsman Parent Company in accordance with the Tax Sharing Agreement; (7) payments to any Huntsman Parent Company for legal, audit and other expenses directly relating to the administration of such Huntsman Parent Company not to exceed $10.0 million in any fiscal year; (8) the payment of consideration by a third party to equity holders of the Company; (9) additional Restricted Payments in an aggregate amount not to exceed $225 325 million since the Designated Issue Date; (10) the payment of dividends or distributions to any Huntsman Parent Company which are contemporaneously applied to pay dividends on common stock of the Huntsman Public Parent at a rate not to exceed $0.40 per share per annum (such amount to be appropriately adjusted to reflect any stock split, reverse stock split, stock dividend, stock issuance or similar transactions made after the Designated Issue Date so that the aggregate amount of dividends payable after such transaction is the same as the amount payable immediately prior to such transaction); (11) payments of dividends on Disqualified Capital Stock issued in accordance with Section 4.12; and (12) if the Consolidated Leverage Ratio of the Company, calculated after giving pro forma effect to any repurchase under this clause (12), is less than 2.5 to 1.0, then the Company may repurchase or dividend to a Huntsman Parent Company to repurchase, up to an aggregate of $250 million of Common Stock of a Huntsman Parent Company. In determining the aggregate amount of Restricted Payments made subsequent to the Designated Issue Date in accordance with clause (iii) of the immediately preceding paragraph, cash amounts expended pursuant to clauses (1), (2), (3)(ii)(A) and (4) above shall be included in such calculation and Restricted Payments made pursuant to the other clauses of this paragraph shall not be so included. Not later than the date of making any Restricted Payment pursuant to clause (iii) of the second preceding paragraph or clause (9) of the immediately preceding paragraph, the Company shall deliver to the Trustee an officersOfficers’ certificate Certificate stating that such Restricted Payment complies with this Indenture and setting forth in reasonable detail the basis upon which the required calculations were computed, which calculations may be based upon the Company’s quarterly financial statements last provided to the Trustee pursuant to Section 4.09.
Appears in 1 contract
Samples: Indenture (Huntsman CORP)
Limitation on Restricted Payments. The On and after the Issue Date the Company shall not, and shall not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, make any Restricted Payment if at the time of Payment, if, after giving effect to such Restricted Payment or immediately after giving effect theretoon a PRO FORMA basis, (i1) a Default or an Event of Default shall have occurred and be continuing, (ii2) the Company is not able permitted to incur at least $1.00 of additional Indebtedness other than Permitted Indebtedness pursuant to the Leverage Ratio in compliance with Section 4.124.11, or (iii3) the aggregate amount of all Restricted Payments made by the Company and its Subsidiaries, including after giving effect to such proposed Restricted Payment made Payment, from and after June 30the Issue Date, 2006, including, the Fair Market Value as determined reasonably and in good faith by the Board of Managers of the Company of non-cash amounts constituting Restricted Payments shall would exceed the sum of: 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 the Company earned from June 30, 2006 through the last day of the last full fiscal quarter immediately preceding the date the Restricted Payment occurs (the “Reference Date”) (treating such period as a single accounting period); plus (xa)(x) 100% of the aggregate net cash proceeds Consolidated EBITDA of the Company and its Consolidated Subsidiaries for the period (taken as one accounting period), commencing on the first day of the first full fiscal quarter commencing after the Issue Date, to and including the last day of the fiscal quarter ended immediately prior to the date of each such calculation (or, in the event Consolidated EBITDA for such period is a deficit, then minus 100% of such deficit) less (y) 1.4 times Consolidated Fixed Charges for the same period plus (b) the aggregate Net Cash Proceeds received by the Company from any Person the sale of its Qualified Capital Stock (other than (i) to a Subsidiary of the CompanyCompany and (ii) from the issuance and sale subsequent to June 30, 2006 of Qualified Capital Stock of the Company (other than Specified Venture Capital Stock) or debt securities of the Company that are, upon issuance, convertible into or exchangeable for Qualified Capital Stock of the Company, but only when and to the extent such debt securities are converted into or exchanged for applied in connection with a Qualified Capital Stock Exchange), after the Issue Date. The foregoing clauses (2) and (3) of the Company; plus immediately preceding paragraph, however, will not prohibit (w) payments to the Parent Guarantor to reimburse the Parent Guarantor for reasonable and necessary corporate and administrative expenses, (x) Restricted Investments, PROVIDED, that, after giving PRO FORMA effect to such Restricted Investment, the aggregate amount of all such Restricted Investments made on or after the Issue Date that are outstanding (after giving effect to any such Restricted Investments that are returned to the Company or the Subsidiary Guarantor that made such prior Restricted Investment, without restriction, in cash on or prior to the date of any such calculation) at any time does not exceed $5.0 million, (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 the Company from a holder of the Company’s Capital Stock subsequent to June 30, 2006; plus Qualified Exchange and (z) $400 million. Notwithstanding the foregoing, the provisions set forth in the immediately preceding paragraph shall not prohibit: (1) the payment of any dividend on Qualified Capital Stock within 60 days after the date of its declaration of if such dividend if the dividend would could have been permitted made on the date of declaration; (2) such declaration in compliance with the acquisition foregoing provisions. The full amount of any shares of Capital Stock Restricted Payment made pursuant to the foregoing clauses (x) and (z) of the Companyimmedi- ately preceding sentence, either (i) solely in exchange for shares of Qualified Capital Stock of the Company or (ii) if no Default or Event of Default shall have occurred and however, will be continuing, through the application of net cash proceeds of a substantially concurrent Equity Offering (other than to a Subsidiary of the Company); (3) the acquisition or repayment of any Indebtedness of the Company that is subordinate or junior in right of payment to the Notes either (i) solely in exchange for shares of Qualified Capital Stock of the Company, or (ii) if no Default or Event of Default shall have occurred and be continuing, through the application of net cash proceeds of (A) a substantially concurrent Equity Offering or (B) incurrence for cash of Refinancing Indebtedness, (deducted in the case calculation of (A) or (B), other than to a Subsidiary of the Company); (4) so long as no Default or Event of Default shall have occurred and be continuing, repurchases by the Company of, or dividends to a Huntsman Parent Company to permit repurchases by a Huntsman Parent Company of, Common Stock of the Company or a Huntsman Parent Company from employees of the Company or any of its Subsidiaries or their authorized representatives upon the death, disability or termination of employment of such employees, in an aggregate amount not to exceed $25 million in any calendar year; (5) the redemption or repurchase of any Common Stock of the Company held by a Restricted Subsidiary of the Company which obtained such Common Stock directly from the Company; (6) distributions to any Huntsman Parent Company in accordance with the Tax Sharing Agreement; (7) payments to any Huntsman Parent Company for legal, audit and other expenses directly relating to the administration of such Huntsman Parent Company not to exceed $10.0 million in any fiscal year; (8) the payment of consideration by a third party to equity holders of the Company; (9) additional Restricted Payments in an aggregate amount not to exceed $225 million since the Designated Date; (10) the payment of dividends or distributions to any Huntsman Parent Company which are contemporaneously applied to pay dividends on common stock of the Huntsman Public Parent at a rate not to exceed $0.40 per share per annum (such amount to be appropriately adjusted to reflect any stock split, reverse stock split, stock dividend, stock issuance or similar transactions made after the Designated Date so that the aggregate amount of dividends payable after such transaction is the same as the amount payable immediately prior to such transaction); (11) payments of dividends on Disqualified Capital Stock issued in accordance with Section 4.12; and (12) if the Consolidated Leverage Ratio of the Company, calculated after giving pro forma effect to any repurchase under this clause (12), is less than 2.5 to 1.0, then the Company may repurchase or dividend to a Huntsman Parent Company to repurchase, up to an aggregate of $250 million of Common Stock of a Huntsman Parent Company. In determining the aggregate amount of Restricted Payments available to be made subsequent pursuant to the Designated Date in accordance with clause (iii3) of the immediately preceding paragraph, cash amounts expended pursuant to clauses (1), (2), (3)(ii)(A) and (4) shall be included in such calculation and Restricted Payments made pursuant to the other clauses of this paragraph shall not be so included. Not later than the date of making any Restricted Payment pursuant to clause (iii) of the second preceding paragraph or clause (9) of the immediately preceding paragraph, the Company shall deliver to the Trustee an officers’ certificate stating that such Restricted Payment complies with this Indenture and setting forth in reasonable detail the basis upon which the required calculations were computed, which calculations may be based upon the Company’s quarterly financial statements last provided to the Trustee pursuant to Section 4.09.
Appears in 1 contract
Samples: Noble Broadcast Group Inc /Oh/
Limitation on Restricted Payments. The Company Issuers and the Guarantors, if any, shall not, and shall not cause or permit any of its Restricted their Subsidiaries to, individually or collectively, directly or indirectly, make any Restricted Payment if at the time of if, after giving effect to such Restricted Payment or immediately after giving effect theretoon a pro forma basis, (i) a Default or an Event of Default shall have occurred and be continuing, (ii) the Company Sun International is not able permitted to incur at least $1.00 of additional Indebtedness other than Permitted Indebtedness pursuant to the Debt Incurrence Ratio contained in compliance with Section 4.12, 4.10 (to the extent applicable) or (iii) the aggregate amount of all Restricted Payments made by Sun International and its Subsidiaries, including after giving effect to such proposed Restricted Payment made Payment, from and after June 30the Issue Date, 2006would exceed, includingwithout duplication, the Fair Market Value as determined reasonably and in good faith by the Board sum of Managers of the Company of non-cash amounts constituting Restricted Payments shall exceed the sum of: (wa) 50% of the cumulative aggregate Consolidated Net Income of Sun International for the period (taken as one accounting period) commencing on the date specified in the Board Resolution or if cumulative Officers' Certificate issuing such series of Securities pursuant to Section 2.03, to and including the last day of the fiscal quarter ended immediately prior to the date of each such calculation (or, in the event Consolidated Net Income shall be for such period is a lossdeficit, then minus 100% of such loss) of the Company earned from June 30deficit), 2006 through the last day of the last full fiscal quarter immediately preceding the date the Restricted Payment occurs (the “Reference Date”) (treating such period as a single accounting period); plus (xb) 100% of the aggregate net cash proceeds Net Cash Proceeds received by Sun International from the Company from any Person sale of its Qualified Capital Stock (other than (i) a sale to a Subsidiary of the CompanySun International and (ii) from the issuance and sale subsequent to June 30, 2006 of Qualified Capital Stock of the Company (other than Specified Venture Capital Stock) or debt securities of the Company that are, upon issuance, convertible into or exchangeable for Qualified Capital Stock of the Company, but only when and to the extent such debt securities Net Cash Proceeds are converted into or exchanged for applied in connection with a Qualified Capital Stock of Exchange) after the Company; Issue Date, plus (yc) without duplication the amount (not to exceed the aggregate amount of Investments previously made by the Issuers or any Guarantor, if any, which were treated as Restricted Payments and counted against the amount available under this clause (iii)) equal to the net reduction in Investments resulting from either (1) any dividends, repayments of loans or advances or other transfers of assets to the Issuers or any Guarantor, if any, or the proceeds realized on sale of such Investments or representing the return of capital or the satisfaction or reduction (other than by means of payments by the Issuers or any Subsidiary) of obligations of other persons which have been guaranteed by the Issuers or any Guarantor, if any, or the release or expiration of any amounts included in such guarantee, including the expiration or release of any Investment Guarantee or (2) the redesignation of an Unrestricted Subsidiary as a Subsidiary which executes a Guarantee, if any; provided, however, that the amount of anything credited pursuant to this clause (iii)(xc) aboveshall not exceed its Fair Market Value at the time of transfer or redesignation, 100% of as the aggregate net cash proceeds of any equity contribution received by the Company from a holder of the Company’s Capital Stock subsequent to June 30case may be, 2006; plus (zd) $400 50.0 million. Notwithstanding the foregoing, the provisions set forth in the The immediately preceding paragraph shall paragraph, however, will not prohibit: prohibit (1) a Qualified Exchange, (2) the payment of any dividend on Capital Stock within 60 days after the date of its declaration of if such dividend if the dividend would could have been permitted made on the date of declaration; (2) such declaration in compliance with the acquisition of any shares of Capital Stock of the Companyforegoing provisions, either (i) solely in exchange for shares of Qualified Capital Stock of the Company or (ii) if no Default or Event of Default shall have occurred and be continuing, through the application of net cash proceeds of a substantially concurrent Equity Offering (other than to a Subsidiary of the Company); (3) the acquisition or repayment of any Indebtedness of the Company that is subordinate or junior in right of payment to the Notes either (i) solely in exchange for shares of Qualified Capital Stock of the Company, or (ii) if no Default or Event of Default shall have occurred and be continuing, through the application of net cash proceeds of (A) a substantially concurrent Equity Offering or (B) incurrence for cash of Refinancing Indebtedness, (in the case of (A) or (B), other than to a Subsidiary of the Company); (4) so long as no Default or Event of Default shall have occurred and be continuing, repurchases by the Company of, or dividends to a Huntsman Parent Company to permit repurchases by a Huntsman Parent Company of, Common Stock of the Company or a Huntsman Parent Company from employees of the Company or any of its Subsidiaries or their authorized representatives upon the death, disability or termination of employment of such employees, in an aggregate amount not to exceed $25 million in any calendar year; (5) the redemption or repurchase of any Common Capital Stock or Indebtedness of the Company Issuers or their Subsidiaries (other than Capital Stock or Indebtedness held by a Permitted Holders), if the holder or beneficial owner of such Capital Stock or Indebtedness is required to be found suitable by any Gaming Authority to own or vote any such security and is found unsuitable by any such Gaming Authority to so own or vote such security and (4) any Investment Guarantee Payments. The full amount of any Restricted Subsidiary Payment made pursuant to the foregoing clauses (2), (3) and (4) (but not pursuant to clause (1)) of the Company which obtained such Common Stock directly from immediately preceding sentence, however, will be deducted in the Company; (6) distributions to any Huntsman Parent Company in accordance with the Tax Sharing Agreement; (7) payments to any Huntsman Parent Company for legal, audit and other expenses directly relating to the administration calculation of such Huntsman Parent Company not to exceed $10.0 million in any fiscal year; (8) the payment of consideration by a third party to equity holders of the Company; (9) additional Restricted Payments in an aggregate amount not to exceed $225 million since the Designated Date; (10) the payment of dividends or distributions to any Huntsman Parent Company which are contemporaneously applied to pay dividends on common stock of the Huntsman Public Parent at a rate not to exceed $0.40 per share per annum (such amount to be appropriately adjusted to reflect any stock split, reverse stock split, stock dividend, stock issuance or similar transactions made after the Designated Date so that the aggregate amount of dividends payable after such transaction is the same as the amount payable immediately prior to such transaction); (11) payments of dividends on Disqualified Capital Stock issued in accordance with Section 4.12; and (12) if the Consolidated Leverage Ratio of the Company, calculated after giving pro forma effect to any repurchase under this clause (12), is less than 2.5 to 1.0, then the Company may repurchase or dividend to a Huntsman Parent Company to repurchase, up to an aggregate of $250 million of Common Stock of a Huntsman Parent Company. In determining the aggregate amount of Restricted Payments available to be made subsequent referred to the Designated Date in accordance with clause (iii) of the immediately preceding paragraph, cash amounts expended pursuant to clauses (1), (2), (3)(ii)(A) and (4) shall be included in such calculation and Restricted Payments made pursuant to the other clauses . For purposes of this paragraph shall not be so included. Not later than Section 4.3, the date amount of making any Restricted Payment pursuant to clause (iii) of made or returned, if other than in cash, shall be the second preceding paragraph Fair Market Value thereof, unless stated otherwise, at the time made or clause (9) of the immediately preceding paragraphreturned, the Company shall deliver to the Trustee an officers’ certificate stating that such Restricted Payment complies with this Indenture and setting forth in reasonable detail the basis upon which the required calculations were computed, which calculations may be based upon the Company’s quarterly financial statements last provided to the Trustee pursuant to Section 4.09as applicable.
Appears in 1 contract
Samples: Sun International Hotels LTD
Limitation on Restricted Payments. (a) The Company shall will not, and shall will not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, make any Restricted Payment if Payment, unless at the time of such Restricted Payment or and immediately after giving effect theretoto the proposed Restricted Payment (with the value of any such Restricted Payment, if other than cash, to be determined by the Board of Directors, whose determination shall be conclusive and evidenced by a board resolution), (i) a no Default or an Event of Default (and no event that, after notice or lapse of time, or both, would become an "event of default" under the terms of any Indebtedness of the Company or its Subsidiaries) shall have occurred and be continuingcontinuing or would occur as a consequence thereof, (ii) the Company is not able to could incur at least $1.00 of additional Indebtedness other than Permitted Indebtedness in compliance with pursuant to the provisions of Section 4.12, or 4.07(a) and (iii) the aggregate amount of all Restricted Payments including such proposed Restricted Payment made after June 30, 2006, including, the Fair Market Value as determined reasonably and in good faith by the Board of Managers of the Company of non-cash amounts constituting Restricted Payments Issue Date shall not 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 the Company earned from June 30, 2006 through the last day of the last full fiscal quarter immediately preceding the date the Restricted Payment occurs (the “Reference Date”) (treating such period as a single accounting period); plus (x) 100% of an amount equal to the Company's Cumulative Operating Cash Flow less 1.4 times the Company's Cumulative Consolidated Interest Expense, plus (y) the aggregate amount of all net cash proceeds received after the Issue Date by the Company from any Person (other than a Subsidiary of the Company) from the issuance and sale subsequent to June 30, 2006 of Qualified Capital Stock of the Company (other than Specified Venture Capital Stock) or debt securities of the Company that are, upon issuance, convertible into or exchangeable for Qualified Capital Stock of the Company, but only when and to the extent such debt securities are converted into or exchanged for Qualified Capital Stock of the Company; 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 the Company from a holder of the Company’s Capital Stock subsequent to June 30, 2006; plus (z) $400 million. Notwithstanding the foregoing, the provisions set forth in the immediately preceding paragraph shall 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) the acquisition of any shares of Capital Stock of the Company, either (i) solely in exchange for shares of Qualified Capital Stock of the Company or (ii) if no Default or Event of Default shall have occurred and be continuing, through the application of net cash proceeds of a substantially concurrent Equity Offering (other than to a Subsidiary of the Company); ) of Capital Stock of the Company (3other than Disqualified Stock) to the acquisition extent that such proceeds are not used to redeem, repurchase, retire or repayment of otherwise acquire Capital Stock or any Indebtedness of the Company that is subordinate or junior in right of payment any Subsidiary pursuant to the Notes either (i) solely in exchange for shares of Qualified Capital Stock of the Company, or clause (ii) if no Default or Event of Default shall have occurred and be continuingSection 4.05(b), through the application of net cash proceeds of plus (Az) a substantially concurrent Equity Offering or (B) incurrence for cash of Refinancing Indebtedness, (in the case of (A) the disposition or (B)repayment of any Investment for cash, other than which Investment constituted a Restricted Payment made after the Issue Date, an amount equal to a Subsidiary the lesser of the Company); return of capital with respect to such Investment and the cost of such Investment, in either case, reduced (4but not below zero) so long as no Default or Event by the excess, if any, of Default shall have occurred and be continuingthe cost of the disposition of such Investment over the gain, repurchases if any, realized by the Company of, or dividends to a Huntsman Parent Company to permit repurchases by a Huntsman Parent Company of, Common Stock of the Company or a Huntsman Parent Company from employees of the Company or any of its Subsidiaries or their authorized representatives upon the death, disability or termination of employment such Subsidiary in respect of such employees, in an aggregate amount not to exceed $25 million in any calendar year; (5) the redemption or repurchase of any Common Stock of the Company held by a Restricted Subsidiary of the Company which obtained such Common Stock directly from the Company; (6) distributions to any Huntsman Parent Company in accordance with the Tax Sharing Agreement; (7) payments to any Huntsman Parent Company for legal, audit and other expenses directly relating to the administration of such Huntsman Parent Company not to exceed $10.0 million in any fiscal year; (8) the payment of consideration by a third party to equity holders of the Company; (9) additional Restricted Payments in an aggregate amount not to exceed $225 million since the Designated Date; (10) the payment of dividends or distributions to any Huntsman Parent Company which are contemporaneously applied to pay dividends on common stock of the Huntsman Public Parent at a rate not to exceed $0.40 per share per annum (such amount to be appropriately adjusted to reflect any stock split, reverse stock split, stock dividend, stock issuance or similar transactions made after the Designated Date so that the aggregate amount of dividends payable after such transaction is the same as the amount payable immediately prior to such transaction); (11) payments of dividends on Disqualified Capital Stock issued in accordance with Section 4.12; and (12) if the Consolidated Leverage Ratio of the Company, calculated after giving pro forma effect to any repurchase under this clause (12), is less than 2.5 to 1.0, then the Company may repurchase or dividend to a Huntsman Parent Company to repurchase, up to an aggregate of $250 million of Common Stock of a Huntsman Parent Company. In determining the aggregate amount of Restricted Payments made subsequent to the Designated Date in accordance with clause (iii) of the immediately preceding paragraph, cash amounts expended pursuant to clauses (1), (2), (3)(ii)(A) and (4) shall be included in such calculation and Restricted Payments made pursuant to the other clauses of this paragraph shall not be so included. Not later than the date of making any Restricted Payment pursuant to clause (iii) of the second preceding paragraph or clause (9) of the immediately preceding paragraph, the Company shall deliver to the Trustee an officers’ certificate stating that such Restricted Payment complies with this Indenture and setting forth in reasonable detail the basis upon which the required calculations were computed, which calculations may be based upon the Company’s quarterly financial statements last provided to the Trustee pursuant to Section 4.09disposition.
Appears in 1 contract
Limitation on Restricted Payments. (a) The Company shall not, and shall not cause or permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, make any Restricted Payment if Payment, unless at the time of such Restricted Payment or immediately and after giving effect theretoto the proposed Restricted Payment, (i) a Default or an Event of no Default shall have occurred and be continuingcontinuing (or would result therefrom), (ii) the Company is not able to could incur at least $1.00 of additional Indebtedness other than Permitted Indebtedness under the test described in compliance with the first sentence of Section 4.12, or 4.13 and (iii) the aggregate amount of all Restricted Payments including such proposed Restricted Payment declared or made on or after June 30, 2006, including, the Fair Market Value as determined reasonably and in good faith Issue Date by the Board of Managers of the Company of non-cash amounts constituting Restricted Payments or any Subsidiary shall not exceed the sum of: of (wA) $15,000,000, plus (B) 50% of the cumulative Consolidated Net Income (or if cumulative such Consolidated Net Income shall be a lossdeficit, minus 100% of such lossdeficit) of the Company earned from June 30, 2006 through aggregate Consolidated Net Income accrued during the period beginning on the first day of the fiscal quarter in which the Issue Date falls and ending on the last day of the last full fiscal quarter ending immediately preceding prior to the date the of such proposed Restricted Payment occurs (the “Reference Date”) (treating such period as a single accounting period); plus (x) Payment, minus 100% of the amount of any writedowns, write-offs and other negative extraordinary charges not otherwise reflected in Consolidated Net Income during such period, plus (C) an amount equal to the aggregate net cash proceeds received by the Company from any Person (other than a Subsidiary of Company, subsequent to the Company) Issue Date, from the issuance and or sale subsequent to June 30, 2006 of Qualified Capital Stock of the Company (other than Specified Venture Capital Stock) or debt securities of the Company that are, upon issuance, convertible into or exchangeable for Qualified Capital Stock of the Company, but only when and to the extent such debt securities are converted into or exchanged for Qualified Capital Stock of the Company; 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 the Company from a holder of the Company’s Capital Stock subsequent to June 30, 2006; plus (z) $400 million. Notwithstanding the foregoing, the provisions set forth in the immediately preceding paragraph shall 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) the acquisition of any shares of Capital Stock of the Company, either (i) solely in exchange for shares of Qualified Capital Stock of the Company or (ii) if no Default or Event of Default shall have occurred and be continuing, through the application of net cash proceeds of a substantially concurrent Equity Offering (other than to a Subsidiary Subsidiary) of shares of its Capital Stock (excluding Redeemable Stock, but including Capital Stock issued upon the exercise of options, warrants or rights to purchase Capital Stock (other than Redeemable Stock) of the Company); ) and the liability (3expressed as a positive number) as expressed on the acquisition or repayment face of a balance sheet in accordance with GAAP in respect of any Indebtedness of the Company that is subordinate or junior in right of payment to the Notes either (i) solely in exchange for shares of Qualified Capital Stock of the Company, or (ii) if no Default or Event of Default shall have occurred and be continuing, through the application of net cash proceeds of (A) a substantially concurrent Equity Offering or (B) incurrence for cash of Refinancing Indebtedness, (in the case of (A) or (B), other than to a Subsidiary of the Company); (4) so long as no Default or Event of Default shall have occurred and be continuing, repurchases by the Company of, or dividends to a Huntsman Parent Company to permit repurchases by a Huntsman Parent Company of, Common Stock of the Company or a Huntsman Parent Company from employees of the Company or any of its Subsidiaries Subsidiaries, or their authorized representatives upon the deathcarrying value of Redeemable Stock, disability which has been converted into, exchanged for or termination satisfied by the issuance of employment shares of such employees, in an aggregate amount not to exceed $25 million in any calendar year; (5) the redemption or repurchase of any Common Stock of the Company held by a Restricted Subsidiary of the Company which obtained such Common Stock directly from the Company; (6) distributions to any Huntsman Parent Company in accordance with the Tax Sharing Agreement; (7) payments to any Huntsman Parent Company for legal, audit and other expenses directly relating to the administration of such Huntsman Parent Company not to exceed $10.0 million in any fiscal year; (8) the payment of consideration by a third party to equity holders of the Company; (9) additional Restricted Payments in an aggregate amount not to exceed $225 million since the Designated Date; (10) the payment of dividends or distributions to any Huntsman Parent Company which are contemporaneously applied to pay dividends on common stock of the Huntsman Public Parent at a rate not to exceed $0.40 per share per annum (such amount to be appropriately adjusted to reflect any stock split, reverse stock split, stock dividend, stock issuance or similar transactions made after the Designated Date so that the aggregate amount of dividends payable after such transaction is the same as the amount payable immediately prior to such transaction); (11) payments of dividends on Disqualified Capital Stock issued in accordance with Section 4.12; and (12other than Redeemable Stock) if the Consolidated Leverage Ratio of the Company, calculated after giving pro forma effect subsequent to the Issue Date, plus (D) 100% of the net reduction in Restricted Investments, subsequent to the Issue Date, in any repurchase under this clause Person, resulting from payments of interest on Indebtedness, dividends, repayments of loans or advances, or other transfers of Property (12but only to the extent such interest, dividends, repayments or other transfers of Property are not included in the calculation of Consolidated Net Income), is less than 2.5 in each case to 1.0, then the Company may repurchase or dividend any Subsidiary from any Person (including, without limitation, from Unrestricted Subsidiaries) or from redesignations of Unrestricted Subsidiaries as Subsidiaries (valued in each case as provided in the definition of "Investments"), not to a Huntsman Parent Company to repurchase, up to an aggregate exceed in the case of $250 million of Common Stock of a Huntsman Parent Company. In determining any Person the aggregate amount of Restricted Payments Investments previously made subsequent to by the Designated Date in accordance with clause (iii) of the immediately preceding paragraph, cash amounts expended pursuant to clauses (1), (2), (3)(ii)(A) and (4) shall be included Company or any Subsidiary in such calculation Person and in each such case which was treated as a Restricted Payments made pursuant to the other clauses of this paragraph shall not be so included. Not later than the date of making any Restricted Payment pursuant to clause (iii) of the second preceding paragraph or clause (9) of the immediately preceding paragraph, the Company shall deliver to the Trustee an officers’ certificate stating that such Restricted Payment complies with this Indenture and setting forth in reasonable detail the basis upon which the required calculations were computed, which calculations may be based upon the Company’s quarterly financial statements last provided to the Trustee pursuant to Section 4.09Payment.
Appears in 1 contract
Samples: Indenture (Hvide Marine Inc)
Limitation on Restricted Payments. The Prior to the occurrence of the Fall-Away Event, the Company shall not, and shall not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, make any Restricted Payment if at the time of such Restricted Payment or immediately after giving effect thereto, Payment: (i) a Default or an Event of Default shall have occurred and be continuing, continuing or shall occur as a consequence thereof; (ii) after giving effect to the Company is not able proposed Restricted Payment, the amount of such Restricted Payment, when added to incur at least $1.00 of additional Indebtedness other than Permitted Indebtedness in compliance with Section 4.12, or (iii) the aggregate amount of all Restricted Payments including such proposed Restricted Payment made after June 30September 25, 20062000, including, the Fair Market Value as determined reasonably and in good faith by the Board of Managers of the Company of non-cash amounts constituting Restricted Payments shall exceed exceeds the sum of: (wa) 50% of the cumulative Company's Consolidated Net Income accrued during the period (or taken as a single period) commencing on July 1, 1997 to and including the fiscal quarter ended immediately prior to the date of such Restricted Payment (or, if cumulative such aggregate Consolidated Net Income shall be a lossdeficit, minus 100% of such loss) of the Company earned from June 30, 2006 through the last day of the last full fiscal quarter immediately preceding the date the Restricted Payment occurs (the “Reference Date”) (treating such period as a single accounting periodaggregate deficit); plus (xb) 100% of the aggregate net cash proceeds received by from the Company from any Person issuance and sale of the Company's Capital Stock (other than to a Subsidiary of the Company) from that is not Disqualified Stock during the issuance period (taken as a single period) commencing with the Issue Date; and sale subsequent to June 30, 2006 of Qualified Capital Stock of (c) $50,000,000; or (iii) the Company (other than Specified Venture Capital Stock) or debt securities would not be able to incur an additional $1.00 of the Company that are, upon issuance, convertible into or exchangeable for Qualified Capital Stock of the Company, but only when and Indebtedness pursuant to the extent such debt securities are converted into or exchanged for Qualified Capital Stock of the Company; plus (yEBITDA Coverage Ratio test in SECTION 4.11(A) without duplication of any amounts included in clause (iii)(x) above, 100% of the aggregate net cash proceeds of any equity contribution received by the Company from a holder of the Company’s Capital Stock subsequent to June 30, 2006; plus (z) $400 millionhereof. Notwithstanding the foregoing, the provisions set forth in the immediately preceding paragraph shall not prohibitCompany may: (1w) the payment of pay any dividend within 60 days after the date of declaration of such dividend thereof if the dividend payment thereof would have been permitted complied with the limitations of this SECTION 4.10 on the date of declaration; (2x) the acquisition of any retire shares of Capital Stock of the Company, either (i) solely in exchange for shares of Qualified 's Capital Stock or the Company's or a Subsidiary of the Company or (ii) if no Default or Event Company's Indebtedness out of Default shall have occurred and be continuing, through the application of net cash proceeds of a substantially concurrent Equity Offering sale (other than to a Subsidiary of the Company) of shares of the Company's Capital Stock (other than Disqualified Stock); (3y) the acquisition or repayment of any Indebtedness of the Company that is subordinate or junior make Investments in right of payment Joint Ventures which, when added to the Notes either (i) solely in exchange for shares of Qualified Capital Stock of the Company, or (ii) if no Default or Event of Default shall have occurred and be continuing, through the application of net cash proceeds of (A) a substantially concurrent Equity Offering or (B) incurrence for cash of Refinancing Indebtedness, (in the case of (A) or (B), other than to a Subsidiary of the Company); (4) so long as no Default or Event of Default shall have occurred and be continuing, repurchases by the Company of, or dividends to a Huntsman Parent Company to permit repurchases by a Huntsman Parent Company of, Common Stock of the Company or a Huntsman Parent Company from employees of the Company or any of its Subsidiaries or their authorized representatives upon the death, disability or termination of employment of such employees, in an aggregate amount not to exceed $25 million in any calendar year; (5) the redemption or repurchase of any Common Stock of the Company held by a Restricted Subsidiary of the Company which obtained such Common Stock directly from the Company; (6) distributions to any Huntsman Parent Company in accordance with the Tax Sharing Agreement; (7) payments to any Huntsman Parent Company for legal, audit and other expenses directly relating to the administration of such Huntsman Parent Company not to exceed $10.0 million in any fiscal year; (8) the payment of consideration by a third party to equity holders of the Company; (9) additional Restricted Payments in an aggregate amount not to exceed $225 million since the Designated Date; (10) the payment of dividends or distributions to any Huntsman Parent Company which are contemporaneously applied to pay dividends on common stock of the Huntsman Public Parent at a rate not to exceed $0.40 per share per annum (such amount to be appropriately adjusted to reflect any stock split, reverse stock split, stock dividend, stock issuance or similar transactions made after the Designated Date so that the aggregate amount of dividends payable all such other Investments made after September 25, 2000 pursuant to this clause (y) (or such transaction is other Investments as would have been made pursuant to this clause (y) had such clause been in effect) do not exceed 5% of Consolidated Tangible Assets at such time (with each such Investment being valued as of the same as the amount payable immediately prior date made and without regard to such transactionsubsequent changes in value); (11) payments of dividends on Disqualified Capital Stock issued in accordance with Section 4.12; and (12z) if the Consolidated Leverage Ratio of the Companymake Investments which, calculated after giving pro forma effect when added to any repurchase under this clause (12), is less than 2.5 to 1.0, then the Company may repurchase or dividend to a Huntsman Parent Company to repurchase, up to an aggregate of $250 million of Common Stock of a Huntsman Parent Company. In determining the aggregate amount of all such other Investments made after September 25, 2000 pursuant to this clause (z) (or such other Investments as would have been made pursuant to this clause (z) had such clause been in effect) do not exceed 2.5% of Consolidated Tangible Assets at such time (with each such Investment being valued as of the date made and without regard to subsequent changes in value); provided, however, that each Restricted Payment described in clause (w) or (x) above shall be taken into account for purposes of computing the aggregate amount of all Restricted Payments made subsequent pursuant to the Designated Date in accordance with clause (iiiii) of the immediately preceding paragraph, cash amounts expended pursuant to clauses (1), (2), (3)(ii)(A) and (4) shall be included in such calculation and Restricted Payments made pursuant to the other clauses of this paragraph shall not be so included. Not later than the date of making any Restricted Payment pursuant to clause (iii) of the second preceding paragraph or clause (9) of the immediately preceding paragraph, the Company shall deliver to the Trustee an officers’ certificate stating that such Restricted Payment complies with this Indenture and setting forth in reasonable detail the basis upon which the required calculations were computed, which calculations may be based upon the Company’s quarterly financial statements last provided to the Trustee pursuant to Section 4.09.
Appears in 1 contract
Samples: Indenture (Healthsouth Corp)
Limitation on Restricted Payments. The Company shall Corporation will not, and shall will not cause or permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, make any Restricted Payment if (including any Restricted Investment), unless at the time of such Restricted Payment or and immediately after giving effect thereto, (i) a Default or an Event of Default shall have occurred and be continuing, (ii) to the Company is not able to incur at least $1.00 of additional Indebtedness other than Permitted Indebtedness in compliance with Section 4.12, or (iii) the aggregate amount of Restricted Payments including such proposed Restricted Payment made after June 30(with the value of any such Restricted Payment, 2006if other than cash, including, the Fair Market Value as to be determined reasonably and in good faith by the Board of Managers Directors of the Company of non-cash amounts constituting Restricted Payments shall exceed the sum of: (w) 50% of the cumulative Consolidated Net Income (or if cumulative Consolidated Net Income shall be a lossCorporation), minus 100% of such loss) of the Company earned from June 30, 2006 through the last day of the last full fiscal quarter immediately preceding 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 the Company from any Person (other than a Subsidiary of the Company) from the issuance and sale subsequent to June 30, 2006 of Qualified Capital Stock of the Company (other than Specified Venture Capital Stock) or debt securities of the Company that are, upon issuance, convertible into or exchangeable for Qualified Capital Stock of the Company, but only when and to the extent such debt securities are converted into or exchanged for Qualified Capital Stock of the Company; 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 the Company from a holder of the Company’s Capital Stock subsequent to June 30, 2006; plus (z) $400 million. Notwithstanding the foregoing, the provisions set forth in the immediately preceding paragraph shall 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) the acquisition of any shares of Capital Stock of the Company, either (i) solely in exchange for shares of Qualified Capital Stock of the Company or (ii) if no Default or Event of Default shall have occurred and be continuingcontinuing or would occur as a consequence thereof, through (ii) the application Corporation could Incur at least $1.00 of net cash proceeds additional Indebtedness pursuant to the first paragraph under Section 4.03 and (iii) the aggregate amount of all Restricted Payments made after the Issue Date shall not exceed the sum of (a) an amount equal to 50% of the Corporation's aggregate cumulative Consolidated Net Income accrued on a substantially concurrent Equity Offering cumulative basis during the period (treated as one accounting period) beginning on January 1, 1998 and ending on the last day of the fiscal quarter of the Corporation immediately preceding the date of such proposed Restricted Payment (or, if such aggregate cumulative Consolidated Net Income for such period shall be a deficit, minus 100% of such deficit), plus (b) (x) the aggregate amount of all Net Proceeds received since the Issue Date by the Corporation from the issuance and sale (other than to a Subsidiary Restricted Subsidiary) of the CompanyCapital Stock (other than Disqualified Stock); , and (3y) the acquisition or repayment of any Indebtedness of the Company that is subordinate or junior in right of payment an amount equal to the Notes either amount (ias shown on the Corporation's most recent consolidated balance sheet, prepared in accordance with GAAP) solely in exchange of all Indebtedness or Disqualified Stock that, after the Issue Date, is converted into or exchanged for shares of Qualified Capital Stock of the CompanyCorporation (other than Disqualified Stock) (less the amount of any cash or property distributed by the Corporation upon such conversion or exchange), plus (c) the amount of the net reduction in Investments by the Corporation or its Restricted Subsidiaries in Unrestricted Subsidiaries resulting from (iix) if the payment of dividends or the repayment in cash of the principal of loans or the net proceeds from the sale of the Capital Stock or assets of such Unrestricted Subsidiaries or other cash return on such Investment, in each case to the extent received by the Corporation or any Restricted Subsidiary of the Corporation, (y) the release or extinguishment of any guarantee of Indebtedness of any Unrestricted Subsidiary, and (z) the redesignation of Unrestricted Subsidiaries as Restricted Subsidiaries of the Corporation (valued as provided in the definition of "Investment"), such aggregate amount of the net reduction in Investments not to exceed the amount of Restricted Investments previously made by the Corporation or any Restricted Subsidiary of the Corporation in such Unrestricted Subsidiaries, which amount was included in the calculation of the amount of Restricted Payments. For purposes of the foregoing clause (c), the Corporation shall be deemed to have made a Restricted Investment under the Indenture in an amount equal to any cash contribution made or subscribed for by the Corporation on or immediately prior to the Issue Date to one or more Unrestricted Subsidiaries. In addition, so long as there is no Default or Event of Default shall have occurred and be continuing, through the application of net cash proceeds of (A) a substantially concurrent Equity Offering or (B) incurrence for cash of Refinancing Indebtedness, (following payments and other actions shall be expressly permitted notwithstanding anything contained in the case of covenant described above (A) or (B)collectively, other than to a Subsidiary of the Company); (4) so long as no Default or Event of Default shall have occurred and be continuing, repurchases by the Company of, or dividends to a Huntsman Parent Company to permit repurchases by a Huntsman Parent Company of, Common Stock of the Company or a Huntsman Parent Company from employees of the Company or any of its Subsidiaries or their authorized representatives upon the death, disability or termination of employment of such employees, in an aggregate amount not to exceed $25 million in any calendar year; (5) the redemption or repurchase of any Common Stock of the Company held by a Restricted Subsidiary of the Company which obtained such Common Stock directly from the Company; (6) distributions to any Huntsman Parent Company in accordance with the Tax Sharing Agreement; (7) payments to any Huntsman Parent Company for legal, audit and other expenses directly relating to the administration of such Huntsman Parent Company not to exceed $10.0 million in any fiscal year; (8) the payment of consideration by a third party to equity holders of the Company; (9) additional Restricted Payments in an aggregate amount not to exceed $225 million since the Designated Date; (10) the payment of dividends or distributions to any Huntsman Parent Company which are contemporaneously applied to pay dividends on common stock of the Huntsman Public Parent at a rate not to exceed $0.40 per share per annum (such amount to be appropriately adjusted to reflect any stock split, reverse stock split, stock dividend, stock issuance or similar transactions made after the Designated Date so that the aggregate amount of dividends payable after such transaction is the same as the amount payable immediately prior to such transaction); (11) payments of dividends on Disqualified Capital Stock issued in accordance with Section 4.12; and (12) if the Consolidated Leverage Ratio of the Company, calculated after giving pro forma effect to any repurchase under this clause (12), is less than 2.5 to 1.0, then the Company may repurchase or dividend to a Huntsman Parent Company to repurchase, up to an aggregate of $250 million of Common Stock of a Huntsman Parent Company. In determining the aggregate amount of Restricted Payments made subsequent to the Designated Date in accordance with clause (iii) of the immediately preceding paragraph, cash amounts expended pursuant to clauses (1), (2), (3)(ii)(A) and (4) shall be included in such calculation and Restricted Payments made pursuant to the other clauses of this paragraph shall not be so included. Not later than the date of making any Restricted Payment pursuant to clause (iii) of the second preceding paragraph or clause (9) of the immediately preceding paragraph, the Company shall deliver to the Trustee an officers’ certificate stating that such Restricted Payment complies with this Indenture and setting forth in reasonable detail the basis upon which the required calculations were computed, which calculations may be based upon the Company’s quarterly financial statements last provided to the Trustee pursuant to Section 4.09."Permitted Payments"):
Appears in 1 contract
Samples: Ampex Corp /De/
Limitation on Restricted Payments. The Company and its Subsidiaries shall not, and shall not cause or permit any of its Restricted their Subsidiaries to, directly or indirectly, make any Restricted Payment if at the time of if, after giving effect to such Restricted Payment or immediately after giving effect theretoon a pro forma basis, (i) a Default or an Event of Default shall have occurred and be continuing, (ii) the Company is not able permitted to incur at least $1.00 of additional Indebtedness other than Permitted Indebtedness pursuant to the Debt Incurrence Ratio contained in compliance with Section 4.124.10, or (iii) the aggregate amount of all Restricted Payments made by the Company and its Subsidiaries, including after giving effect to such proposed Restricted Payment made Payment, from and after June 30the Issue Date, 2006, including, the Fair Market Value as determined reasonably and in good faith by the Board of Managers of the Company of non-cash amounts constituting Restricted Payments shall would exceed the sum of: of (wa) $5.0 million, plus (b) 50% of the cumulative aggregate Consolidated Net Income of the Company and its Consolidated Subsidiaries for the period (or if cumulative taken as one accounting period) commencing on the first day of the first full fiscal quarter commencing after the Issue Date, to and including the last day of the fiscal quarter ended immediately prior to the date of each such calculation (or, in the event Consolidated Net Income shall be for such period is a lossdeficit, then minus 100% of such lossdeficit) of the Company earned from June 30, 2006 through the last day of the last full fiscal quarter immediately preceding the date the Restricted Payment occurs (the “Reference Date”) (treating such period as a single accounting period); plus (xc) 100% of the aggregate net cash proceeds Net Cash Proceeds received by the Company from any Person the sale of its Qualified Capital Stock (other than (i) to a Subsidiary of the CompanyCompany and (ii) from the issuance and sale subsequent to June 30, 2006 of Qualified Capital Stock of the Company (other than Specified Venture Capital Stock) or debt securities of the Company that are, upon issuance, convertible into or exchangeable for Qualified Capital Stock of the Company, but only when and to the extent such debt securities are converted into or exchanged for applied in connection with a Qualified Capital Stock of Exchange) after the Company; plus Issue Date. The immediately preceding paragraph, however, will not prohibit (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 the Company from a holder of the Company’s Capital Stock subsequent to June 30, 2006; plus Qualified Exchange or (z) $400 million. Notwithstanding the foregoing, the provisions set forth in the immediately preceding paragraph shall not prohibit: (1) the payment of any dividend on Qualified Capital Stock within 60 days after the date of its declaration of if such dividend if the dividend would could have been permitted made on the date of declaration; (2) such declaration in compliance with the acquisition foregoing provisions. The full amount of any shares of Capital Stock Restricted Payment made pursuant to clause (z) (but not pursuant to clause (y)) of the Companyimmediately preceding sentence, either (i) solely in exchange for shares of Qualified Capital Stock of the Company or (ii) if no Default or Event of Default shall have occurred and however, will be continuing, through the application of net cash proceeds of a substantially concurrent Equity Offering (other than to a Subsidiary of the Company); (3) the acquisition or repayment of any Indebtedness of the Company that is subordinate or junior in right of payment to the Notes either (i) solely in exchange for shares of Qualified Capital Stock of the Company, or (ii) if no Default or Event of Default shall have occurred and be continuing, through the application of net cash proceeds of (A) a substantially concurrent Equity Offering or (B) incurrence for cash of Refinancing Indebtedness, (deducted in the case calculation of (A) or (B), other than to a Subsidiary of the Company); (4) so long as no Default or Event of Default shall have occurred and be continuing, repurchases by the Company of, or dividends to a Huntsman Parent Company to permit repurchases by a Huntsman Parent Company of, Common Stock of the Company or a Huntsman Parent Company from employees of the Company or any of its Subsidiaries or their authorized representatives upon the death, disability or termination of employment of such employees, in an aggregate amount not to exceed $25 million in any calendar year; (5) the redemption or repurchase of any Common Stock of the Company held by a Restricted Subsidiary of the Company which obtained such Common Stock directly from the Company; (6) distributions to any Huntsman Parent Company in accordance with the Tax Sharing Agreement; (7) payments to any Huntsman Parent Company for legal, audit and other expenses directly relating to the administration of such Huntsman Parent Company not to exceed $10.0 million in any fiscal year; (8) the payment of consideration by a third party to equity holders of the Company; (9) additional Restricted Payments in an aggregate amount not to exceed $225 million since the Designated Date; (10) the payment of dividends or distributions to any Huntsman Parent Company which are contemporaneously applied to pay dividends on common stock of the Huntsman Public Parent at a rate not to exceed $0.40 per share per annum (such amount to be appropriately adjusted to reflect any stock split, reverse stock split, stock dividend, stock issuance or similar transactions made after the Designated Date so that the aggregate amount of dividends payable after such transaction is the same as the amount payable immediately prior to such transaction); (11) payments of dividends on Disqualified Capital Stock issued in accordance with Section 4.12; and (12) if the Consolidated Leverage Ratio of the Company, calculated after giving pro forma effect to any repurchase under this clause (12), is less than 2.5 to 1.0, then the Company may repurchase or dividend to a Huntsman Parent Company to repurchase, up to an aggregate of $250 million of Common Stock of a Huntsman Parent Company. In determining the aggregate amount of Restricted Payments available to be made subsequent referred to the Designated Date in accordance with clause (iii) of the immediately preceding paragraph, cash amounts expended pursuant to clauses (1), (2), (3)(ii)(A) and (4) shall be included in such calculation and Restricted Payments made pursuant to the other clauses of this paragraph shall not be so included. Not later than the date of making any Restricted Payment pursuant to clause (iii) of the second preceding paragraph or clause (9) of the immediately preceding paragraph, the Company shall deliver to the Trustee an officers’ certificate stating that such Restricted Payment complies with this Indenture and setting forth in reasonable detail the basis upon which the required calculations were computed, which calculations may be based upon the Company’s quarterly financial statements last provided to the Trustee pursuant to Section 4.09.
Appears in 1 contract
Samples: Employee Solutions Inc
Limitation on Restricted Payments. The Company shall not, and shall not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, make any Restricted Payment if unless (a) at the time of such Restricted Payment or immediately after giving effect thereto, (i) a Default no Event of Default, and no event that through the passage of time or the giving of notice, or both, would become an Event of Default shall Default, will have occurred and be continuing, (iib) after giving effect thereto, the Company is not able to incur could Incur at least $1.00 of additional Indebtedness other than Permitted Indebtedness in compliance with Debt pursuant to the provisions of the second paragraph of Section 4.124.12 and (c) after giving effect thereto, or (iii) the aggregate amount of all Restricted Payments including such proposed Restricted Payment made after June 30, 2006, including, the Fair Market Value as determined reasonably and in good faith by the Board of Managers of Company and its Subsidiaries after the Company of non-cash amounts constituting Restricted Payments shall Issue Date will not exceed the sum (without duplication) of: (wi) 50% of the cumulative Consolidated Net Income of the Company accrued for the period (or taken as one accounting period) commencing with January 1, 1998, and ending with the first full fiscal quarter ended immediately prior to the date of such calculation; provided that if cumulative Consolidated Net Income shall be a lossfor such period is less than zero, then minus 100% of the amount of such loss) of the Company earned from June 30, 2006 through the last day of the last full fiscal quarter immediately preceding the date the Restricted Payment occurs (the “Reference Date”) (treating such period as a single accounting period); plus (xii) 10050% of that portion of the net after tax cash proceeds from the sale, transfer, carryover, lease or other disposition of the Monessen Facility that is directly attributable to the Monessen Section 29 Tax Credits; plus (iii) the aggregate net cash proceeds received by the Company from any Person the issuance or sale (other than to a Subsidiary Subsidiary) of the Company) from the issuance and sale subsequent to June 30, 2006 of Qualified its Capital Stock of the Company (other than Specified Venture Redeemable Stock) after the Issue Date (including Capital Stock (other than Redeemable Stock) issued upon conversion of, or in exchange for, securities other than its Capital Stock) ), and warrants and other rights to purchase (not including any such warrants or debt securities rights to purchase which are redeemable at the option of the Company that are, upon issuance, convertible into or exchangeable for Qualified holder thereof) its Capital Stock of the Company, but only when and to the extent such debt securities are converted into or exchanged for Qualified Capital Stock of the Company(other than Redeemable 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 the Company from a holder of the Company’s Capital Stock subsequent to June 30, 2006; plus (ziv) $400 million5,000,000. Notwithstanding the foregoing, the provisions set forth in the immediately preceding paragraph shall not prohibit: (1) the Company may make payment of any a dividend within 60 days after the date or other distribution on account of declaration of such dividend if the dividend would have been permitted on the date of declaration; (2) the acquisition of any its shares of Capital Stock within 90 days of the Company, either (i) solely in exchange for shares of Qualified Capital Stock of declaration thereof if such declaration was permitted under the Company or (ii) if no Default or Event of Default shall have occurred and be continuing, through the application of net cash proceeds of a substantially concurrent Equity Offering (other than to a Subsidiary of the Company); (3) the acquisition or repayment of any Indebtedness of the Company that is subordinate or junior in right of payment to the Notes either (i) solely in exchange for shares of Qualified Capital Stock of the Company, or (ii) if no Default or Event of Default shall have occurred and be continuing, through the application of net cash proceeds of (A) a substantially concurrent Equity Offering or (B) incurrence for cash of Refinancing Indebtedness, (in the case of (A) or (B), other than to a Subsidiary of the Company); (4) so long as no Default or Event of Default shall have occurred and be continuing, repurchases by the Company of, or dividends to a Huntsman Parent Company to permit repurchases by a Huntsman Parent Company of, Common Stock of the Company or a Huntsman Parent Company from employees of the Company or any of its Subsidiaries or their authorized representatives upon the death, disability or termination of employment of such employees, in an aggregate amount not to exceed $25 million in any calendar year; (5) the redemption or repurchase of any Common Stock of the Company held by a Restricted Subsidiary of the Company which obtained such Common Stock directly from the Company; (6) distributions to any Huntsman Parent Company in accordance with the Tax Sharing Agreement; (7) payments to any Huntsman Parent Company for legal, audit and other expenses directly relating to the administration of such Huntsman Parent Company not to exceed $10.0 million in any fiscal year; (8) the payment of consideration by a third party to equity holders of the Company; (9) additional Restricted Payments in an aggregate amount not to exceed $225 million since the Designated Date; (10) the payment of dividends or distributions to any Huntsman Parent Company which are contemporaneously applied to pay dividends on common stock of the Huntsman Public Parent at a rate not to exceed $0.40 per share per annum (such amount to be appropriately adjusted to reflect any stock split, reverse stock split, stock dividend, stock issuance or similar transactions made after the Designated Date so that the aggregate amount of dividends payable after such transaction is the same as the amount payable immediately prior to such transaction); (11) payments of dividends on Disqualified Capital Stock issued in accordance with Section 4.12; and (12) if the Consolidated Leverage Ratio of the Company, calculated after giving pro forma effect to any repurchase under this clause (12), is less than 2.5 to 1.0, then the Company may repurchase or dividend to a Huntsman Parent Company to repurchase, up to an aggregate of $250 million of Common Stock of a Huntsman Parent Company. In determining the aggregate amount of Restricted Payments made subsequent to the Designated Date in accordance with clause (iii) of the immediately preceding paragraph, cash amounts expended pursuant to clauses (1), (2), (3)(ii)(A) and (4) shall be included in such calculation and Restricted Payments made pursuant to the other clauses provisions of this paragraph shall not be so included. Not later than the date of making any Restricted Payment pursuant to clause (iii) of the second preceding paragraph or clause (9) of the immediately preceding paragraph, the Company shall deliver to the Trustee an officers’ certificate stating that such Restricted Payment complies with this Indenture and setting forth in reasonable detail the basis upon which the required calculations were computed, which calculations may be based upon the Company’s quarterly financial statements last provided to the Trustee pursuant to Section 4.094.10.
Appears in 1 contract
Samples: Koppers Industries Inc
Limitation on Restricted Payments. The Prior to the occurrence of the Fall-Away Event, the Company shall not, and shall not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, make any Restricted Payment if at the time of such Restricted Payment or immediately after giving effect thereto, Payment: (i) a Default or an Event of Default shall have occurred and be continuing, continuing or shall occur as a consequence thereof; (ii) after giving effect to the Company is not able proposed Restricted Payment, the amount of such Restricted Payment, when added to incur at least $1.00 of additional Indebtedness other than Permitted Indebtedness in compliance with Section 4.12, or (iii) the aggregate amount of all Restricted Payments including such proposed Restricted Payment made after June 30September 25, 20062000, including, the Fair Market Value as determined reasonably and in good faith by the Board of Managers of the Company of non-cash amounts constituting Restricted Payments shall exceed exceeds the sum of: (wa) 50% of the cumulative Company's Consolidated Net Income accrued during the period (or taken as a single period) commencing on July 1, 1997 to and including the fiscal quarter ended immediately prior to the date of such Restricted Payment (or, if cumulative such aggregate Consolidated Net Income shall be a lossdeficit, minus 100% of such loss) of the Company earned from June 30, 2006 through the last day of the last full fiscal quarter immediately preceding the date the Restricted Payment occurs (the “Reference Date”) (treating such period as a single accounting periodaggregate deficit); plus (xb) 100% of the aggregate net cash proceeds received by from the Company from any Person issuance and sale of the Company's Capital Stock (other than to a Subsidiary of the Company) from that is not Disqualified Stock during the issuance period (taken as a single period) commencing with the Issue Date; and sale subsequent to June 30, 2006 of Qualified Capital Stock of (c) $50,000,000; or (iii) the Company (other than Specified Venture Capital Stock) or debt securities would not be able to incur an additional $1.00 of the Company that are, upon issuance, convertible into or exchangeable for Qualified Capital Stock of the Company, but only when and Indebtedness pursuant to the extent such debt securities are converted into or exchanged for Qualified Capital Stock of the Company; 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 the Company from a holder of the Company’s Capital Stock subsequent to June 30, 2006; plus (z) $400 millionSECTION 4.11 hereof. Notwithstanding the foregoing, the provisions set forth in the immediately preceding paragraph shall not prohibitCompany may: (1w) the payment of pay any dividend within 60 days after the date of declaration of such dividend thereof if the dividend payment thereof would have been permitted complied with the limitations of this SECTION 4.10 on the date of declaration; (2x) the acquisition of any retire shares of Capital Stock of the Company, either (i) solely in exchange for shares of Qualified 's Capital Stock or the Company's or a Subsidiary of the Company or (ii) if no Default or Event Company's Indebtedness out of Default shall have occurred and be continuing, through the application of net cash proceeds of a substantially concurrent Equity Offering sale (other than to a Subsidiary of the Company) of shares of the Company's Capital Stock (other than Disqualified Stock); (3y) the acquisition or repayment of any Indebtedness of the Company that is subordinate or junior make Investments in right of payment Joint Ventures which, when added to the Notes either (i) solely in exchange for shares of Qualified Capital Stock of the Company, or (ii) if no Default or Event of Default shall have occurred and be continuing, through the application of net cash proceeds of (A) a substantially concurrent Equity Offering or (B) incurrence for cash of Refinancing Indebtedness, (in the case of (A) or (B), other than to a Subsidiary of the Company); (4) so long as no Default or Event of Default shall have occurred and be continuing, repurchases by the Company of, or dividends to a Huntsman Parent Company to permit repurchases by a Huntsman Parent Company of, Common Stock of the Company or a Huntsman Parent Company from employees of the Company or any of its Subsidiaries or their authorized representatives upon the death, disability or termination of employment of such employees, in an aggregate amount not to exceed $25 million in any calendar year; (5) the redemption or repurchase of any Common Stock of the Company held by a Restricted Subsidiary of the Company which obtained such Common Stock directly from the Company; (6) distributions to any Huntsman Parent Company in accordance with the Tax Sharing Agreement; (7) payments to any Huntsman Parent Company for legal, audit and other expenses directly relating to the administration of such Huntsman Parent Company not to exceed $10.0 million in any fiscal year; (8) the payment of consideration by a third party to equity holders of the Company; (9) additional Restricted Payments in an aggregate amount not to exceed $225 million since the Designated Date; (10) the payment of dividends or distributions to any Huntsman Parent Company which are contemporaneously applied to pay dividends on common stock of the Huntsman Public Parent at a rate not to exceed $0.40 per share per annum (such amount to be appropriately adjusted to reflect any stock split, reverse stock split, stock dividend, stock issuance or similar transactions made after the Designated Date so that the aggregate amount of dividends payable all such other Investments made after September 25, 2000 pursuant to this clause (y) (or such transaction is other Investments as would have been made pursuant to this clause (y) had such clause been in effect) do not exceed 5% of Consolidated Tangible Assets at such time (with each such Investment being valued as of the same as the amount payable immediately prior date made and without regard to such transactionsubsequent changes in value); (11) payments of dividends on Disqualified Capital Stock issued in accordance with Section 4.12; and (12z) if the Consolidated Leverage Ratio of the Companymake Investments which, calculated after giving pro forma effect when added to any repurchase under this clause (12), is less than 2.5 to 1.0, then the Company may repurchase or dividend to a Huntsman Parent Company to repurchase, up to an aggregate of $250 million of Common Stock of a Huntsman Parent Company. In determining the aggregate amount of all such other Investments made after September 25, 2000 pursuant to this clause (z) (or such other Investments as would have been made pursuant to this clause (z) had such clause been in effect) do not exceed 2.5% of Consolidated Tangible Assets at such time (with each such Investment being valued as of the date made and without regard to subsequent changes in value); provided, however, that each Restricted Payment described in clause (w) or (x) above shall be taken into account for purposes of computing the aggregate amount of all Restricted Payments made subsequent pursuant to the Designated Date in accordance with clause (iiiii) of the immediately preceding paragraph, cash amounts expended pursuant to clauses (1), (2), (3)(ii)(A) and (4) shall be included in such calculation and Restricted Payments made pursuant to the other clauses of this paragraph shall not be so included. Not later than the date of making any Restricted Payment pursuant to clause (iii) of the second preceding paragraph or clause (9) of the immediately preceding paragraph, the Company shall deliver to the Trustee an officers’ certificate stating that such Restricted Payment complies with this Indenture and setting forth in reasonable detail the basis upon which the required calculations were computed, which calculations may be based upon the Company’s quarterly financial statements last provided to the Trustee pursuant to Section 4.09.
Appears in 1 contract
Samples: Indenture (Healthsouth Corp)
Limitation on Restricted Payments. The Company Guarantors shall not, and shall not cause or permit any of its Restricted their Subsidiaries to, directly or indirectly, make any Restricted Payment if at the time of if, immediately prior to such proposed Restricted Payment or immediately after giving effect theretoto such proposed Restricted Payment on a pro forma basis, (i1) a Default or an Event of Default shall have occurred and be continuing, ; or (ii2) the Company is Guarantor proposing to make such Restricted Payment (the "Payment Guarantor") would not able be permitted to incur at least $1.00 of additional Indebtedness other than Permitted Indebtedness solely by virtue of the Combined Fixed Charge Coverage Ratio provision contained in compliance with clause (ii) of paragraph (a) of Section 4.12, 5.11; or (iii3) the aggregate amount of all Restricted Payments made by such Payment Guarantor and its Subsidiaries, including after giving pro forma effect to such proposed Restricted Payment made Payment, from and after June 30the Issue Date, 2006, including, the Fair Market Value as determined reasonably and in good faith by the Board of Managers of the Company of non-cash amounts constituting Restricted Payments shall would exceed the sum of: of (wa) 50% of the cumulative amount by which the aggregate Adjusted Consolidated Net Income of such Payment Guarantor for the period (or if cumulative taken as one accounting period) commencing on the first day of the first full fiscal quarter that commenced after the Issue Date, to and including the last day of the fiscal quarter ended immediately prior to the date of each such calculation exceeds permitted distributions of Tax Amounts (in accordance with clause (v) of the next paragraph) for such Payment Guarantor for such period (or, in the event Adjusted Consolidated Net Income shall be less permitted distributions of Tax Amounts for such period is a lossdeficit, then minus 100% of such lossdeficit) plus (b) the aggregate Net Cash Proceeds received by such Payment Guarantor as a capital contribution or from the sale of its Qualified Capital Stock (other than (i) to a Guarantor or Subsidiary of a Guarantor, including of such Payment Guarantor, or (ii) other than in connection with a Qualified Exchange) after the Issue Date; or (4) the aggregate amount of all Restricted Payments, including after giving pro forma effect to such proposed Restricted Payment, of all the Guarantors and their Subsidiaries from and after the Issue Date would exceed the sum of (a) 50% of the Company earned from June 30amount by which the Adjusted Combined Net Income for the period (taken as one accounting period) commencing on the first day of the first full fiscal quarter which commenced after the Issue Date, 2006 through to and including the last day of the last full fiscal quarter ended immediately preceding prior to the date of each such calculation exceeds permitted distributions of Tax Amounts (in accordance with clause (v) of the Restricted Payment occurs (next paragraph) for all of the “Reference Date”) (treating Guarantors for such period as (or, in the event Adjusted Combined Net Income less permitted distributions of Tax Amounts for such period is a single accounting period); plus (x) deficit, then minus 100% of such deficit) plus (b) the aggregate net cash proceeds Net Cash Proceeds received by the Company Guarantors as a capital contribution or from any Person the sale of their Qualified Capital Stock (other than (i) to a Guarantor or Subsidiary of a Guarantor; or (ii) in connection with a Qualified Exchange) after the CompanyIssue Date. The foregoing clauses (2), (3) from the issuance and sale subsequent to June 30, 2006 of Qualified Capital Stock (4) of the Company immediately preceding paragraph, however, will not prohibit (other than Specified Venture Capital Stockp) or debt securities as and when required pursuant to the terms of the Company that areIndenture, upon issuancepayments of principal of, convertible into or exchangeable for premium, if any, and interest on, the Mirror Notes and Qualified Capital Stock Loans, in accordance with their respective terms; (q) any repayment of the Company, but only when Indebtedness described in subparagraphs (w) and to the extent such debt securities are converted into or exchanged for Qualified Capital Stock of the Company; plus (y) without duplication of any amounts included in clause this paragraph; (iii)(xr) above, 100% of the aggregate net cash proceeds of any equity contribution received by the Company from a holder of the Company’s Capital Stock subsequent distributions made pursuant to June 30, 2006Permitted Proceed Uses; plus (z) $400 million. Notwithstanding the foregoing, the provisions set forth in the immediately preceding paragraph shall not prohibit: (1s) the payment of any dividend within 60 days after the date of declaration of its declaration, if such dividend if the dividend would could have been permitted made on the date of declarationsuch declaration in compliance with the foregoing provisions; (2t) a Qualified Exchange; (u) a Permitted Regulatory Redemption of Indebtedness (other than the acquisition of any shares of Notes) or Capital Stock of such Payment Guarantor; (v) with respect to each tax year that a Guarantor qualifies as an S Corporation under the CompanyCode, either (i) solely in exchange for shares or any similar provision of Qualified Capital Stock state or local law, distributions of Tax Amounts; provided however that prior to any distribution of Tax Amounts a knowledgeable and duly authorized officer of the Company or (ii) if no Default or Event Guarantor making such distribution certifies, and counsel reasonably acceptable to the Trustee opines, that such Guarantor qualifies as an S Corporation for Federal income tax purposes and for the states in respect of Default shall have occurred which such distributions are being made and be continuingthat at the time of such distributions, through the application most recent audited financial statements of net cash proceeds such Guarantor provide that such Guarantor was treated as an S Corporation for Federal income tax purposes for the period of a substantially concurrent Equity Offering (other than to a Subsidiary of the Company)such financial statements; (3w) the acquisition unsecured, subordinated loans by Empress to Xxxxxxx Empress or repayment of any Indebtedness of the Company that is subordinate or junior in right of payment Xxxxxxx Leasing as and when necessary to the fund interest payments on their respective Mirror Notes either (i) solely in exchange for shares of Qualified Capital Stock of the Company, or (ii) if no Default or Event of Default shall have occurred and be continuing, through the application of net cash proceeds of (A) a substantially concurrent Equity Offering or (B) incurrence for cash of Refinancing Indebtedness, (in the case of (A) or (B), other than to a Subsidiary of the Company); (4) so long as no Default or Event of Default shall have occurred and be continuing, repurchases by the Company of, or dividends to a Huntsman Parent Company to permit repurchases by a Huntsman Parent Company of, Common Stock of the Company or a Huntsman Parent Company from employees of the Company or any of its Subsidiaries or their authorized representatives upon the death, disability or termination of employment of such employees, in an aggregate amount not to exceed $25 11 million, including up to $2 million in any calendar yearof which can be used for working capital purposes; (5x) Restricted Investments in the redemption form of Qualified Loans to Additional Guarantors in an amount equal to the Net Retained Repurchase Amount (only to the extent that such amounts were not otherwise included in Combined Net Income or repurchase Consolidated Net Income of any Common Stock of the Company held by a Restricted Subsidiary of the Company which obtained such Common Stock directly from the CompanyEmpress); (6y) distributions any loan from Xxxxxxx Empress or Xxxxxxx Leasing to any Huntsman Parent Company in accordance with the Tax Sharing Agreement; (7) payments to any Huntsman Parent Company for legalEmpress, audit and other expenses directly relating to the administration of such Huntsman Parent Company not to exceed $10.0 million in any fiscal year; (8) the payment of consideration evidenced by a third party to equity holders of the Company; (9) additional Restricted Payments in an aggregate amount not to exceed $225 million since the Designated Date; (10) the payment of dividends or distributions to any Huntsman Parent Company which are contemporaneously applied to pay dividends on common stock of the Huntsman Public Parent at a rate not to exceed $0.40 per share per annum (such amount to be appropriately adjusted to reflect any stock splitunsecured subordinated promissory note, reverse stock split, stock dividend, stock issuance or similar transactions made after the Designated Date so provided that the aggregate amount of dividends payable after such transaction is the same as the amount payable immediately prior to such transaction); proposed Restricted Investment and after giving effect to such proposed Restricted Investment, on a pro forma basis, the then outstanding aggregate principal amount of such loans by Xxxxxxx Empress or Xxxxxxx Leasing, as applicable, would not exceed the lesser of (11i) payments 100% of dividends the aggregate amount by which the Adjusted Consolidated Net Income of Xxxxxxx Empress or Xxxxxxx Leasing, as applicable, for the period (taken as one accounting period) commencing on Disqualified Capital Stock issued the first day of the first full fiscal quarter that commenced after the Issue Date, to and including the last day of the fiscal quarter ended immediately prior to the date of each such calculation exceeds permitted distributions of Tax Amounts (in accordance with Section 4.12clause (v) of this paragraph) by Xxxxxxx Empress or Xxxxxxx Leasing, as applicable; and (12ii) if with respect to Xxxxxxx Empress, $33 million, or, with respect to Xxxxxxx Leasing, $25 million; and (z) any Restricted Investment by Empress in the Consolidated Leverage Ratio form of Qualified Loans to Additional Guarantors, of which the source of funds is indebtedness incurred by Empress pursuant to the foregoing clause (y). The full amount of any Restricted Payment made pursuant to any of the Company, calculated after giving pro forma effect to any repurchase under this clause foregoing clauses (12s), is less than 2.5 to 1.0(t), then (u) and (y), however, will be deducted in the Company may repurchase or dividend to a Huntsman Parent Company to repurchase, up to an aggregate calculation of $250 million of Common Stock of a Huntsman Parent Company. In determining the aggregate amount of Restricted Payments available to be made subsequent referred to the Designated Date in accordance with clause clauses (iii3) and (4) of the immediately preceding paragraph. Distributions of Tax Amounts may be made from time to time with respect to a tax year based on reasonable estimates, cash amounts expended pursuant with a reconciliation within 40 days of the earlier of (i) the Guarantor's filing of Internal Revenue Service Form 1120S for the applicable taxable year; and (ii) the last date such form is required to clauses be filed (1without regard to any extensions), provided that -------- ---- the stockholders of each Guarantor shall have entered into a binding agreement (2)the "Tax Reimbursement Agreement") with each Guarantor to reimburse the applicable Guarantor for certain positive differences between distributed Tax Amounts and the Reconciled Tax Amount, (3)(ii)(A) and (4) which difference must be paid at the time of such reconciliation. Any part of Tax Amounts not distributed in respect of a tax period for which it is calculated shall be included available for distribution in such calculation and Restricted Payments made pursuant to the other clauses of this paragraph subsequent tax periods. 44 The Company shall not be so included. Not later than the date of making not, directly or indirectly, make any Restricted Payment pursuant to clause (iii) of the second preceding paragraph or clause (9) of the immediately preceding paragraphany party, the Company shall deliver other than to the Trustee an officers’ certificate stating that such Restricted Payment complies with this Indenture and setting forth in reasonable detail the basis upon which the required calculations were computed, which calculations may be based upon the Company’s quarterly financial statements last provided to the Trustee pursuant to Section 4.09its parent Guarantors.
Appears in 1 contract
Samples: Indenture (Hammond Residential LLC)
Limitation on Restricted Payments. (a) The Company shall will not, and shall will not cause or permit any of its Restricted Subsidiaries toSubsidiary, directly or indirectly, to make any Restricted Payment if at the time of such Restricted Payment or immediately after giving effect thereto, (i) a Default or an Event of Default shall have occurred and be continuing, (ii) the Company is not able to incur at least $1.00 of additional Indebtedness other than Permitted Indebtedness in compliance with Section 4.12, or (iii) the aggregate amount of Restricted Payments including such proposed Restricted Payment made after June 30, 2006, including, the Fair Market Value as determined reasonably and in good faith by the Board of Managers of the Company of non-cash amounts constituting Restricted Payments 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 the Company earned from June 30, 2006 through the last day of the last full fiscal quarter immediately preceding 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 the Company from any Person (other than a Subsidiary of the Company) from the issuance and sale subsequent to June 30, 2006 of Qualified Capital Stock of the Company (other than Specified Venture Capital Stock) or debt securities of the Company that are, upon issuance, convertible into or exchangeable for Qualified Capital Stock of the Company, but only when and to the extent such debt securities are converted into or exchanged for Qualified Capital Stock of the Company; 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 the Company from a holder of the Company’s Capital Stock subsequent to June 30, 2006; plus (z) $400 million. Notwithstanding the foregoing, the provisions set forth in the immediately preceding paragraph shall not prohibitPayment: (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) the acquisition of any shares of Capital Stock of the Company, either (i) solely in exchange for shares of Qualified Capital Stock of the Company or (ii) if no a Default or Event of Default shall have occurred and be continuingcontinuing (or would result therefrom); (2) the Company could not Incur at least $1.00 of additional Indebtedness under paragraph (a) of Section 4.3; or (3) the aggregate amount of such Restricted Payment and all other Restricted Payments (the amount so expended, through if other than in cash, to be determined in good faith by the application Board of net cash proceeds Directors of the Company, whose determination (in the case of amounts in excess of $5.0 million) will be evidenced by a substantially concurrent Equity Offering resolution of such Board of Directors) declared or made subsequent to the Issue Date would exceed the sum of: (A) 15% of the Consolidated NIDA accrued during the period (treated as one accounting period) from the beginning of the fiscal quarter immediately following the fiscal quarter during which the Issue Date occurs to the end of the most recent fiscal quarter ending at least 45 days prior to the date of such Restricted Payment (or, in case such Consolidated NIDA will be a deficit, minus 100% of such deficit) (except that if the Notes have been rated Investment Grade as of the end of any fiscal quarter, then the amount to be calculated pursuant to this clause (A) for the succeeding fiscal quarter and for any other succeeding quarter where the Notes have been rated Investment Grade on the first day of such fiscal quarter shall be 25% of Consolidated NIDA, provided that the Notes are also rated Investment Grade at the time such Restricted Payment is declared or made, as the case may be); (B) the aggregate Net Cash Proceeds received by the Company from the issue or sale of Capital Stock (other than Disqualified Stock) or other cash contributions from Holdings to the Company's capital subsequent to the Issue Date (other than an issuance or sale to a Subsidiary of the Company and other than an issuance or sale to an employee stock ownership plan or to a trust established by the Company, or any of its Subsidiaries for the benefit of their employees to the extent that such plan or trust Incurs any Indebtedness Guaranteed by the Company or its Restricted Subsidiaries to finance the acquisition of such Capital Stock); (3C) the acquisition amount by which Indebtedness of the Company is reduced on the Company's balance sheet upon the conversion or repayment exchange (other than by a Subsidiary) subsequent to the Issue Date of any Indebtedness of the Company that is subordinate convertible or junior in right exchangeable for Capital Stock (other than Disqualified Stock) of payment the Company (less the amount of any cash, or the fair market value of any other property, distributed by the Company upon such conversion or exchange); (D) an amount equal to the Notes either sum of (i) solely the net reduction in exchange for shares Investments resulting from repayments of Qualified Capital Stock loans or advances or other transfers of assets, terminations of Guarantees or proceeds received by the Company, Company or the relevant Restricted Subsidiary from the sale of all or part of such Investments in each case to the Company or any Restricted Subsidiary and (ii) if no Default or Event of Default shall have occurred and be continuing, through the application of net cash proceeds of portion (Aproportionate to the Company's equity interest in such Subsidiary) a substantially concurrent Equity Offering or (B) incurrence for cash of Refinancing Indebtedness, (in the case of (A) or (B), other than to a Subsidiary of the Company); fair market value of the net assets of an Unrestricted Subsidiary at the time such Unrestricted Subsidiary is designated a Restricted Subsidiary (4) so long as no Default or Event of Default shall have occurred and be continuing, repurchases by the Company of, or dividends to a Huntsman Parent Company to permit repurchases by a Huntsman Parent Company of, Common Stock of is merged into the Company or a Huntsman Parent Company from employees Restricted Subsidiary); provided, that the foregoing sum shall not exceed the amount of such Investments previously made by the Company or any of its Subsidiaries Restricted Subsidiary in such Unrestricted Subsidiary or their authorized representatives upon in such other Person, which amount was included in the death, disability or termination of employment of such employees, in an aggregate amount not to exceed $25 million in any calendar year; (5) the redemption or repurchase of any Common Stock calculation of the Company held by a Restricted Subsidiary of the Company which obtained such Common Stock directly from the Company; (6) distributions to any Huntsman Parent Company in accordance with the Tax Sharing Agreement; (7) payments to any Huntsman Parent Company for legal, audit and other expenses directly relating to the administration of such Huntsman Parent Company not to exceed $10.0 million in any fiscal year; (8) the payment of consideration by a third party to equity holders of the Company; (9) additional Restricted Payments in an aggregate amount not to exceed $225 million since the Designated Date; (10) the payment of dividends or distributions to any Huntsman Parent Company which are contemporaneously applied to pay dividends on common stock of the Huntsman Public Parent at a rate not to exceed $0.40 per share per annum (such amount to be appropriately adjusted to reflect any stock split, reverse stock split, stock dividend, stock issuance or similar transactions made after the Designated Date so that the aggregate amount of dividends payable after such transaction is the same as the amount payable immediately prior to such transaction); (11) payments of dividends on Disqualified Capital Stock issued in accordance with Section 4.12Restricted Payments; and (12E) if the Consolidated Leverage Ratio of the Company, calculated after giving pro forma effect to any repurchase under this clause (12), is less than 2.5 to 1.0, then the Company may repurchase or dividend to a Huntsman Parent Company to repurchase, up to an aggregate of $250 million of Common Stock of a Huntsman Parent Company. In determining the aggregate amount of Restricted Payments made subsequent to the Designated Date in accordance with clause (iii) of the immediately preceding paragraph, cash amounts expended pursuant to clauses (1), (2), (3)(ii)(A) and (4) shall be included in such calculation and Restricted Payments made pursuant to the other clauses of this paragraph shall not be so included. Not later than the date of making any Restricted Payment pursuant to clause (iii) of the second preceding paragraph or clause (9) of the immediately preceding paragraph, the Company shall deliver to the Trustee an officers’ certificate stating that such Restricted Payment complies with this Indenture and setting forth in reasonable detail the basis upon which the required calculations were computed, which calculations may be based upon the Company’s quarterly financial statements last provided to the Trustee pursuant to Section 4.095.0 million.
Appears in 1 contract
Samples: Indenture (Purina Mills Inc)
Limitation on Restricted Payments. The Company shall will not, and shall will not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, make any Restricted Payment if at the time of such Restricted Payment or immediately if, after giving effect theretothereto on a pro forma basis, (il) a Default or an Event of Default shall have occurred and be continuing, (ii2) immediately after giving effect to such Restricted Payment on a pro forma basis, the Consolidated Coverage Ratio of the Company is not able for the Reference Period immediately preceding the Restricted Payment would be less than 2.0 to incur at least $1.00 of additional Indebtedness other than Permitted Indebtedness in compliance with Section 4.121, or (iii3) the aggregate amount of all Restricted Payments made by the Company and its Subsidiaries, including after giving effect to such proposed Restricted Payment made Payment, would exceed the sum of (a) 50% of the aggregate Consolidated Net Income of the Company and its Consolidated Subsidiaries for the period (taken as one accounting period) commencing on the first day of the first full fiscal quarter commencing after June 30the Casino Opening Date, 2006to and including the last day of the fiscal quarter ended immediately prior to the date of each such calculation (or, includingin the event Consolidated Net Income for such period is a deficit, then minus 100% of such deficit), minus 100% of the Fair Market Value amount of any writedowns, writeoffs, or negative extraordinary charges (other than any related to the Casino prior to the Casino Completion Date) not otherwise reflected in Consolidated Net Income during such period, plus (b) the aggregate Net Cash Proceeds (including the fair market value of non-cash proceeds, as determined reasonably and in good faith by the Board of Managers Manager of the Company of non-cash amounts constituting Restricted Payments shall exceed the sum of: (wCompany) 50% of the cumulative Consolidated Net Income (or if cumulative Consolidated Net Income shall be a loss, minus 100% of such loss) of the Company earned from June 30, 2006 through the last day of the last full fiscal quarter immediately preceding 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 the Company from any Person (other than as a Subsidiary of the Company) capital contribution or from the issuance and sale subsequent to June 30, 2006 of its Qualified Capital Stock of the Company (other than Specified Venture Capital Stock) or debt securities of the Company that are, upon issuance, convertible into or exchangeable for Qualified Capital Stock of the Company, but only when and to the extent such debt securities are converted into or exchanged for Qualified Capital Stock of the Company; 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 the Company from a holder of the Company’s Capital Stock subsequent to June 30, 2006; plus (z) $400 million. Notwithstanding the foregoing, the provisions set forth in the immediately preceding paragraph shall 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) the acquisition of any shares of Capital Stock of the Company, either (i) solely in exchange for shares of Qualified Capital Stock of the Company or (ii) if no Default or Event of Default shall have occurred and be continuing, through the application of net cash proceeds of a substantially concurrent Equity Offering (other than to a Subsidiary of the Company); (3Company and other than in connection with a Qualified Exchange) after the acquisition or repayment of any Indebtedness of the Company that is subordinate or junior in right of payment to the Notes either (i) solely in exchange for shares of Qualified Capital Stock of the CompanyCasino Completion Date, or (ii4) if no Default or Event during each of Default shall have occurred the two full consecutive Contingent Payment Periods preceding the proposed Restricted Payment, the Company has not paid (a) the Maximum Contingent Payments with respect to each such Contingent Payment Period and be continuing, through (b) the application of net cash proceeds of (A) a substantially concurrent Equity Offering or (B) incurrence for cash of Refinancing Indebtedness, Maximum Contingent Payments (in this instance only, as defined in the case of (A8% Notes Indenture) or (B), other than to a Subsidiary of the Company); (4) so long as no Default or Event of Default shall have occurred and be continuing, repurchases by the Company of, or dividends to a Huntsman Parent Company to permit repurchases by a Huntsman Parent Company of, Common Stock of the Company or a Huntsman Parent Company from employees of the Company or any of its Subsidiaries or their authorized representatives upon the death, disability or termination of employment of such employees, in an aggregate amount not to exceed $25 million in any calendar year; (5) the redemption or repurchase of any Common Stock of the Company held by a Restricted Subsidiary of the Company which obtained such Common Stock directly from the Company; (6) distributions to any Huntsman Parent Company in accordance with the Tax Sharing Agreement; (7) payments to any Huntsman Parent Company for legal, audit and other expenses directly relating respect to the administration of 8% Notes with respect to each such Huntsman Parent Company not to exceed $10.0 million in any fiscal year; (8) the payment of consideration by a third party to equity holders of the Company; (9) additional Restricted Payments in an aggregate amount not to exceed $225 million since the Designated Date; (10) the payment of dividends or distributions to any Huntsman Parent Company which are contemporaneously applied to pay dividends on common stock of the Huntsman Public Parent at a rate not to exceed $0.40 per share per annum (such amount to be appropriately adjusted to reflect any stock split, reverse stock split, stock dividend, stock issuance or similar transactions made after the Designated Date so that the aggregate amount of dividends payable after such transaction is the same as the amount payable immediately prior to such transaction); (11) payments of dividends on Disqualified Capital Stock issued in accordance with Section 4.12; and (12) if the Consolidated Leverage Ratio of the Company, calculated after giving pro forma effect to any repurchase under this clause (12), is less than 2.5 to 1.0, then the Company may repurchase or dividend to a Huntsman Parent Company to repurchase, up to an aggregate of $250 million of Common Stock of a Huntsman Parent CompanyContingent Payment Period. In determining the aggregate amount of Restricted Payments made subsequent to the Designated Date in accordance with clause (iii) of the immediately preceding paragraph, cash amounts expended pursuant to The foregoing clauses (1), (2), (3)(ii)(A3) and (4) shall be included in such calculation and Restricted Payments made pursuant to the other clauses of this paragraph shall not be so included. Not later than the date of making any Restricted Payment pursuant to clause (iii) of the second preceding paragraph or clause (9) of the immediately preceding paragraph, however, will not prohibit (A) the payment of any dividend on or redemption of Qualified Capital Stock within 60 days after the date of its declaration or authorization, respectively, if such dividend or redemption could have been made on the date of such declaration or authorization in compliance with the foregoing provisions, (B) the redemption or distribution or other Restricted Payment with respect to Capital Stock or Indebtedness pursuant to, and in accordance with, any Required Regulatory Redemption effected in accordance with this Indenture (including dividends and distributions to the Parent Guarantor to permit the Parent Guarantor to effect a Required Regulatory Redemption), (C) a Qualified Exchange, (D) dividends and distributions by the Company shall deliver to the Trustee Parent Guarantor in an amount equal to all Permitted Tax Distributions, to the extent such are actually so applied by the Parent Guarantor, (E) dividends and distributions (other than Permitted Tax Distributions) by the Company to the Parent Guarantor to the extent necessary to permit the Parent Guarantor to pay the Parent Guarantor's reasonable professional fees and expenses in connection with complying with its reporting obligations (including its obligations set forth in Section 5.8) and obligations to prepare and distribute business records, financial statements or other documents to any lender or other persons having business dealings with the Parent Guarantor or as may be required by law, the Parent Guarantor's costs and related expenses in connection with the computation of federal, state, local or foreign taxes and other governmental charges, indemnification agreements, insurance premiums, surety bonds and insurance brokers' fees, and the Parent Guarantor's expenses for directors', officers’ certificate stating that ' and employees' compensation and benefits, and any other administrative expenses incurred in the ordinary course of business practices, (all, in the case of this clause (E) to be limited in an amount proportionate to the percentage of the book value of the Parent Guarantor's assets which is fairly attributable, at the time of such Restricted Payment, to the Company, its Subsidiaries and the Development Companies), and (F) Restricted Investments by the Company in any of the Development Companies, and Restricted Payments by the Company to the Parent Guarantor to the extent the Parent Guarantor uses such Restricted Payment complies with this Indenture to make an Investment in any of the Development Companies. The full amount of any Restricted Payment made pursuant to either of clauses (A), (B) and setting forth (F) (but not those made pursuant to clauses (C), (D) or (E)) will be deducted in reasonable detail the basis upon calculation of the aggregate amount of Restricted Payments thereafter available to be made pursuant to clause (3) of the immediately preceding paragraph. In addition to, and notwithstanding anything to the contrary in, the foregoing, the Company will not, and will not permit any of its Subsidiaries to, directly or indirectly, make any Restricted Payment (other than pursuant to clauses (B), (C), (D), (E) and (F) of the immediately preceding paragraph) prior to the last day of the Company's first full fiscal quarter during or prior to which the required calculations were computed, which calculations may be based upon the Company’s quarterly financial statements last provided to the Trustee pursuant to Section 4.09Casino Completion Date shall have occurred.
Appears in 1 contract
Samples: Indenture (Jazz Casino Co LLC)
Limitation on Restricted Payments. The Company shall not, and shall not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, make any Restricted Payment if Payment, unless (i) at the time of such Restricted Payment or and immediately after giving effect theretoto the proposed Restricted Payment, (i) a no Default or an Event of Default shall have occurred and be continuing, or would occur as a consequence thereof, and (ii) at the Company is not able time of and immediately after giving effect to incur at least $1.00 of additional Indebtedness other than Permitted Indebtedness in compliance with Section 4.12, or (iii) the aggregate amount of Restricted Payments including such proposed Restricted Payment made after June 30(the value of any such payment if other than cash, 2006, including, the Fair Market Value as determined reasonably and in good faith by the Board of Managers Directors of the Company and evidenced by a Board Resolution), the aggregate amount of non-cash amounts constituting all Restricted Payments declared or made subsequent to the Issue Date shall not exceed the sum of: of (wa) 50% of the cumulative aggregate Consolidated Net Operating Income (or or, if cumulative such aggregate Consolidated Net Operating Income shall be is a lossdeficit, minus 100% of such lossdeficit) of the Company earned for the period (taken as one accounting period) from June 30, 2006 through 1997, to the last day end of the last full Company's most recently ended fiscal quarter immediately preceding for which internal financial statements are available at the date the time of such Restricted Payment occurs (the “Reference Date”) (treating such period as a single accounting period); plus (xb) 100% of the aggregate net proceeds, including cash proceeds and the fair market value of property other than cash (as determined in good faith by the Board of Directors of the Company and evidenced by a Board Resolution), received by the Company since June 30, 1997 from any Person other than a Subsidiary of the Company as a result of the issuance of Capital Stock (other than any Disqualified Capital Stock) of the Company including such Capital Stock issued upon conversion of Indebtedness or upon exercise of warrants and any contributions to the capital of the Company received by the Company from any such Person plus (c) $50 million plus (d) to the extent that any Restricted Investment that was made after June 30, 1997 is sold for cash or otherwise liquidated or repaid for cash, the lesser of (A) the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any) and (B) the initial amount of such Restricted Investment. For purposes of any calculation pursuant to the preceding sentence which is required to be made within 60 days after the declaration of a dividend by the Company, such dividend shall be deemed to be paid at the date of declaration. The foregoing provisions of this covenant shall not be violated by reason of (a) the payment of any dividends or distributions payable solely in shares of the Company's Capital Stock (other than a Subsidiary of Disqualified Stock) or in options, warrants or other rights to acquire the Company) from the issuance and sale subsequent to June 30, 2006 of Qualified 's Capital Stock of the Company (other than Specified Venture Capital Disqualified Stock), (b) or debt securities the payment of dividends in accordance with the terms of the Company that areExchangeable Preferred Stock, upon issuance, convertible into or exchangeable for Qualified Capital Stock of the Company, but only when and to the extent such debt securities are converted into or exchanged for Qualified Capital Stock of the Company; 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 the Company from a holder of the Company’s Capital Stock subsequent to June 30, 2006; plus (z) $400 million. Notwithstanding the foregoing, the provisions set forth in the immediately preceding paragraph shall not prohibit: (1c) the payment of any dividend within 60 days after the date of declaration of thereof if, at such dividend if the dividend would have been permitted on the date of declaration; , such payment complied with the provisions described above, (2d) the acquisition retirement of any shares of the Company's Capital Stock in exchange for, or out of the Companyproceeds of, either (i) solely in exchange for shares of Qualified Capital Stock of the Company or (ii) if no Default or Event of Default shall have occurred and be continuing, through the application of net cash proceeds of a substantially concurrent Equity Offering sale (other than to a Subsidiary of the Company) of, other shares of its Capital Stock (other than Disqualified Capital Stock) or options, warrants or other rights to purchase the Company's Capital Stock (other than Disqualified Stock); , (3e) the acquisition or repayment Chevron Payment, (f) the AOC Payment, (g) the Gulf Payments, and (h) the making of any Indebtedness payment in redemption of the Company that is subordinate or junior in right of payment to the Notes either (i) solely in exchange for shares of Qualified Capital Stock of the Company, or (ii) if no Default or Event of Default shall have occurred and be continuing, through the application of net cash proceeds of (A) a substantially concurrent Equity Offering or (B) incurrence for cash of Refinancing Indebtedness, (in the case of (A) or (B), other than to a Subsidiary of the Company); (4) so long as no Default or Event of Default shall have occurred and be continuing, repurchases by the Company of, or dividends to a Huntsman Parent Company to permit repurchases by a Huntsman Parent Company of, Common Stock of the Company or a Huntsman Parent Company from options to purchase such Capital Stock granted to officers or employees of the Company pursuant to any stock option, stock purchase or any other stock plan approved by the board of its Subsidiaries or their authorized representatives upon directors of the death, disability Company in connection with the severance or termination of employment of such employees, in an aggregate amount officers or employees not to exceed $25 4 million in any calendar year; (5) the redemption or repurchase per annum. The board of any Common Stock directors of the Company may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default or Event of Default; provided that, in no event shall the business currently operated by the Company and Xxxxx be transferred to or held by a Restricted Subsidiary an Unrestricted Subsidiary. For purposes of making such determination, all outstanding Investments by the Company which obtained such Common Stock directly from the Company; and its Restricted Subsidiaries (6) distributions to any Huntsman Parent Company in accordance with the Tax Sharing Agreement; (7) payments to any Huntsman Parent Company for legal, audit and other expenses directly relating except to the administration extent repaid in cash) in the Subsidiary so designated shall be deemed to be Restricted Payments at the time of such Huntsman Parent Company not to exceed $10.0 million in any fiscal year; (8) designation and will reduce the payment of consideration by a third party to equity holders of the Company; (9) additional amount available for Restricted Payments under the first paragraph of this Limitation on Restricted Payments covenant. All such outstanding Investments shall be deemed to constitute Investments in an aggregate amount not equal to exceed $225 million since the Designated Date; greatest of (10x) the payment net book value of dividends or distributions to any Huntsman Parent Company which are contemporaneously applied to pay dividends on common stock such Investments at the time of such designation, (y) the Huntsman Public Parent fair market value of such Investments at a rate not to exceed $0.40 per share per annum (the time of such amount to be appropriately adjusted to reflect any stock splitdesignation, reverse stock split, stock dividend, stock issuance or similar transactions made after the Designated Date so that the aggregate amount of dividends payable after such transaction is the same as the amount payable immediately prior to such transaction); (11) payments of dividends on Disqualified Capital Stock issued in accordance with Section 4.12; and (12z) the original fair market value of such Investments at the time they were made. Such designation shall only be permitted if the Consolidated Leverage Ratio of the Company, calculated after giving pro forma effect to any repurchase under this clause (12), is less than 2.5 to 1.0, then the Company may repurchase or dividend to a Huntsman Parent Company to repurchase, up to an aggregate of $250 million of Common Stock of a Huntsman Parent Company. In determining the aggregate amount of Restricted Payments made subsequent to the Designated Date in accordance with clause (iii) of the immediately preceding paragraph, cash amounts expended pursuant to clauses (1), (2), (3)(ii)(A) and (4) shall be included in such calculation and Restricted Payments made pursuant to the other clauses of this paragraph shall not be so included. Not later than the date of making any Restricted Payment pursuant to clause (iii) of the second preceding paragraph or clause (9) of the immediately preceding paragraph, the Company shall deliver to the Trustee an officers’ certificate stating that such Restricted Payment complies with this Indenture would be permitted at such time and setting forth in reasonable detail if such Restricted Subsidiary otherwise meets the basis upon which the required calculations were computed, which calculations may be based upon the Company’s quarterly financial statements last provided to the Trustee pursuant to Section 4.09definition of an Unrestricted Subsidiary.
Appears in 1 contract
Samples: Indenture (Clark Usa Inc /De/)
Limitation on Restricted Payments. The Company shall will not, and shall will not cause or permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, make any Restricted Payment if at the time of such Restricted Payment or immediately after giving effect thereto, unless (i) a Default or an Event of no Default shall have occurred and be continuingcontinuing at the time or as a consequence of such Restricted Payment, (ii) the Consolidated Adjusted Net Worth of the Company is on a pro forma basis, after giving effect to such Restricted Payment (to the extent not able to incur at least otherwise reflected therein), shall be greater than $1.00 of additional Indebtedness other than Permitted Indebtedness in compliance with Section 4.125,000,000 (the 'Minimum Net Worth'), or and (iii) such Restricted Payment, together with the aggregate amount of all other Restricted Payments including such proposed Restricted Payment Payments, made after June 30the date of this Agreement shall not exceed the sum of (A) 25% of Consolidated Net Income of the Company for the period from the date of this Agreement to the end of the Quarter immediately preceding such Restricted Payment, 2006calculated on a cumulative basis as if such period were a single accounting period (after taking into account 100% of Consolidated Net Losses to the extent that Consolidated Net Income shall be a deficit at any time during such period) (the 'Cumulative Consolidated Net Income'), includingand (B) the aggregate net proceeds, including cash and the Fair Market Value fair market value of property other than cash (as determined reasonably and in good faith by the Board of Managers Directors of the Company of non-cash amounts constituting Restricted Payments shall exceed the sum of: (w) 50% of the cumulative Consolidated Net Income (or if cumulative Consolidated Net Income shall be and evidenced by a lossBoard Resolution), minus 100% of such loss) of the Company earned from June 30, 2006 through the last day of the last full fiscal quarter immediately preceding received after 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 this Agreement by the Company from any Person (other than a Subsidiary Subsidiary, as a result of the Company) from the issuance and sale subsequent to June 30, 2006 of Qualified Capital Stock of the Company (other than Specified Venture any Redeemable Stock), including such Capital Stock) Stock issued upon conversion or debt securities exchange of Indebtedness or upon exercise of warrants, and any contributions to the capital of the Company that are, upon issuance, convertible into or exchangeable for Qualified Capital Stock of the Company, but only when and to the extent such debt securities are converted into or exchanged for Qualified Capital Stock of the Company; 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 the Company from any such Person (all such proceeds and contributions being hereinafter referred to as 'Stock Sale Proceeds'). For purposes of any calculation that is required to be made after the declaration of a holder dividend by the Company or any Subsidiary, such dividend shall be deemed to be paid at the date of declaration and shall be included in determining the Company’s Capital Stock aggregate amount of Restricted Payments, and the subsequent to June 30, 2006; plus (z) $400 million. Notwithstanding the foregoing, the provisions set forth in the immediately preceding paragraph payment of such dividend shall not prohibit: be treated as an additional payment. The provisions of this Section 6.8 shall not be violated by reason of (1i) the payment of any dividend in respect of the Company's Capital Stock within 60 days after the date of declaration of thereof, if at such dividend if the dividend would have been permitted on the date of declaration; declaration such payment complied with the provisions hereof, (2ii) the retirement of any shares of the Company's Capital Stock, to the extent the Company has received the cash proceeds of the substantially concurrent sale or issuance (other than to a Subsidiary) of other shares of Capital Stock (other than any Redeemable Stock) of the Company or warrants, options or rights to purchase shares of the Company's Capital Stock, in an amount equal to the amount to be expended to retire the shares of the Company's Capital Stock, and (iii) the acquisition of any shares of Capital Stock of the Company, either (i) solely in exchange for shares of Qualified Capital Stock of the Company or (ii) if no Default or Event of Default shall have occurred and be continuing, through the application of net cash proceeds of a substantially concurrent Equity Offering (other than to a Subsidiary of the Company); (3) the acquisition or repayment of any Indebtedness of the Company that which is subordinate or junior in right of payment to the Notes either (i) solely Note requiring sinking fund payments in exchange for shares anticipation of Qualified Capital Stock satisfying a sinking fund obligation within 90 days. For purposes of the Company, or (ii) if no Default or Event of Default shall have occurred and be continuing, through the application of net cash proceeds of (A) a substantially concurrent Equity Offering or (B) incurrence for cash of Refinancing Indebtedness, (in the case of (A) or (B), other than to a Subsidiary of the Company); (4) so long as no Default or Event of Default shall have occurred and be continuing, repurchases by the Company of, or dividends to a Huntsman Parent Company to permit repurchases by a Huntsman Parent Company of, Common Stock of the Company or a Huntsman Parent Company from employees of the Company or any of its Subsidiaries or their authorized representatives upon the death, disability or termination of employment of such employees, in an aggregate amount not to exceed $25 million in any calendar year; (5) the redemption or repurchase of any Common Stock of the Company held by a Restricted Subsidiary of the Company which obtained such Common Stock directly from the Company; (6) distributions to any Huntsman Parent Company in accordance with the Tax Sharing Agreement; (7) payments to any Huntsman Parent Company for legal, audit and other expenses directly relating to the administration of such Huntsman Parent Company not to exceed $10.0 million in any fiscal year; (8) the payment of consideration by a third party to equity holders of the Company; (9) additional Restricted Payments in an aggregate amount not to exceed $225 million since the Designated Date; (10) the payment of dividends or distributions to any Huntsman Parent Company which are contemporaneously applied to pay dividends on common stock of the Huntsman Public Parent at a rate not to exceed $0.40 per share per annum (such amount to be appropriately adjusted to reflect any stock split, reverse stock split, stock dividend, stock issuance or similar transactions made after the Designated Date so that the aggregate amount of dividends payable after such transaction is the same as the amount payable immediately prior to such transaction); (11) payments of dividends on Disqualified Capital Stock issued in accordance with Section 4.12; and (12) if the Consolidated Leverage Ratio of the Company, calculated after giving pro forma effect to any repurchase under this clause (12), is less than 2.5 to 1.0, then the Company may repurchase or dividend to a Huntsman Parent Company to repurchase, up to an aggregate of $250 million of Common Stock of a Huntsman Parent Company. In determining the aggregate amount of Restricted Payments made subsequent to the Designated Date in accordance with clause (iii) of the immediately preceding paragraphfirst sentence of the first paragraph of this Section 6.8, cash all amounts expended pursuant to clauses (1), i) (2), (3)(ii)(A) to the extent deemed to have been paid and (4) shall be already included in such calculation and determining the aggregate amount of Restricted Payments made pursuant to the other clauses of this paragraph shall not be so included. Not later than the date of making any Restricted Payment pursuant to clause (iii) of the second preceding paragraph or clause (9) last sentence of the immediately preceding paragraph), (ii) or (iii) of this paragraph shall be excluded. For the purposes of this Section 6.8, the net proceeds from the issuance of shares of Capital Stock of the Company upon conversion of debt securities shall be deemed to be an amount equal to the net book value of such debt securities (plus the additional amount required to be paid upon such conversion, if any), less any cash payment on account of fractional shares; the 'net book value' of a security shall be the amount received by the Company on the issuance of such security, as adjusted on the books of the Company to the date of conversion. The foregoing shall not be interpreted to limit the authority of the Board of Directors to determine the value of other securities of the Company or other property received as net proceeds; provided, however, that the value of the other property shall not exceed the net book value of such property. Prior to making any Restricted Payment under this Section 6.8, the Company shall deliver to the Trustee Noteholder an officers’ certificate stating that such Officers' Certificate setting forth the computation by which the amount available for the Restricted Payment complies with this Indenture and setting forth in reasonable detail the basis upon which the required calculations were computed, which calculations may be based upon the Company’s quarterly financial statements last provided to the Trustee pursuant to Section 4.09was determined.
Appears in 1 contract
Samples: Securities Purchase Agreement (Tender Loving Care Health Care Services Inc/ Ny)
Limitation on Restricted Payments. The Company shall not, and shall not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, make any Restricted Payment if at the time of if, after giving effect to such Restricted Payment or immediately after giving effect theretoon a PRO FORMA basis, (i1) a Default or an Event of Default shall have occurred and be continuing, (ii2) the Company is not able permitted to incur at least $1.00 of additional Indebtedness other than Permitted Indebtedness pursuant to the Debt Incurrence Ratio in compliance with paragraph (a) of Section 4.124.10, or (iii3) the aggregate amount of all Restricted Payments made by the Company and its Subsidiaries, including after giving effect to such proposed Restricted Payment made Payment, from and after June 30the Issue Date, 2006, including, would exceed the Fair Market Value as determined reasonably and in good faith by the Board sum of Managers (a) Consolidated EBITDA of the Company of non-cash amounts constituting Restricted Payments shall exceed and its Consolidated Subsidiaries for the sum of: period (w) 50% taken as one accounting period), commencing on the first day of the cumulative first full fiscal quarter commencing after the Issue Date, to and including the last day of the fiscal quarter ended immediately prior to the date of each such calculation (or, in the event Consolidated Net Income (or if cumulative Consolidated Net Income shall be EBITDA for such period is a lossdeficit, then minus 100% of such lossdeficit), minus (b) of 1.5 times the Company earned from June 30Consolidated Fixed Charges over such period, 2006 through the last day of the last full fiscal quarter immediately preceding the date the Restricted Payment occurs (the “Reference Date”) (treating such period as a single accounting period); plus (xc) 100% of the aggregate net cash proceeds Net Cash Proceeds received by the Company from any Person the sale of its Qualified Capital Stock or Indebtedness to the extent subsequently converted into Qualified Capital Stock (other than a Subsidiary of the Company) from the issuance and sale subsequent to June 30, 2006 of Qualified Capital Stock of the Company (other than Specified Venture Capital Stock) or debt securities of the Company that are, upon issuance, convertible into or exchangeable for Qualified Capital Stock of the Company, but only when and to the extent such debt securities are converted into or exchanged for Qualified Capital Stock of the Company; 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 the Company from a holder of the Company’s Capital Stock subsequent to June 30, 2006; plus (z) $400 million. Notwithstanding the foregoing, the provisions set forth in the immediately preceding paragraph shall 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) the acquisition of any shares of Capital Stock of the Company, either (i) solely in exchange for shares of Qualified Capital Stock of the Company or (ii) if no Default or Event of Default shall have occurred and be continuing, through the application of net cash proceeds of a substantially concurrent Equity Offering (other than to a Subsidiary of the Company); Company and (3ii) to the extent applied in connection with a Qualified Exchange) or the fair market value (as determined by the Board of Directors reasonably and in good faith) of securities of the Parent issued in connection with an acquisition by the Company or any of its Subsidiaries, in each case after the Issue Date, plus (d) the acquisition net reductions in Investments (other than reductions in Permitted Investments) in any Person resulting from payments of interest on Indebtedness, dividends, repayments of loans or repayment from designations of any Indebtedness Unrestricted Subsidiaries as Subsidiaries, valued in each case as provided in the definition of "Investment," not to exceed the amount of Investments previously made by the Company and its Subsidiaries in such Person, plus (e) $15 million. The preceding paragraph, however, will not prohibit (w) payments in accordance with "Use of Proceeds" section of the Company that prospectus, dated October 10, 1996, which is subordinate or junior in right of payment to the Notes either (i) solely in exchange for shares of Qualified Capital Stock part of the Company's Registration Statement on Form S-1, or (iix) if no Default or Event repurchases of Default shall have occurred and be continuing, through Capital Stock out of the application of net cash proceeds of (A) a substantially concurrent Equity Offering or (B) incurrence for cash of Refinancing Indebtedness, (any "key man" life insurance policies on Xxxxxx X. Xxxxx existing on the Issue Date and described in the case Prospectus and additional repurchases of (A) or (B), other than to a Subsidiary of the Company); (4) so long as no Default or Event of Default shall have occurred and be continuing, repurchases by the Company of, or dividends to a Huntsman Parent Company to permit repurchases by a Huntsman Parent Company of, Common Capital Stock of the Company or a Huntsman Parent Company from employees of the Company or any of its Subsidiaries or their authorized representatives upon the death, disability or termination of employment of such employees, in an aggregate amount to all employees not to exceed $25 1 million per year or $2 million in any calendar year; the aggregate on and after the Issue Date, (5y) the redemption a Qualified Exchange, or repurchase of any Common Stock of the Company held by a Restricted Subsidiary of the Company which obtained such Common Stock directly from the Company; (6) distributions to any Huntsman Parent Company in accordance with the Tax Sharing Agreement; (7) payments to any Huntsman Parent Company for legal, audit and other expenses directly relating to the administration of such Huntsman Parent Company not to exceed $10.0 million in any fiscal year; (8) the payment of consideration by a third party to equity holders of the Company; (9) additional Restricted Payments in an aggregate amount not to exceed $225 million since the Designated Date; (10z) the payment of dividends or distributions any dividend on Qualified Capital Stock within 60 days after the date of its declaration if such dividend could have been made on the date of such declaration in compliance with the foregoing provisions. The full amount of any Restricted Payment made pursuant to any Huntsman Parent Company which are contemporaneously applied to pay dividends on common stock the foregoing clauses (x) and (z) of the Huntsman Public Parent at a rate not to exceed $0.40 per share per annum (such amount to immediately preceding sentence, however, will be appropriately adjusted to reflect any stock split, reverse stock split, stock dividend, stock issuance or similar transactions made after deducted in the Designated Date so that the aggregate amount calculation of dividends payable after such transaction is the same as the amount payable immediately prior to such transaction); (11) payments of dividends on Disqualified Capital Stock issued in accordance with Section 4.12; and (12) if the Consolidated Leverage Ratio of the Company, calculated after giving pro forma effect to any repurchase under this clause (12), is less than 2.5 to 1.0, then the Company may repurchase or dividend to a Huntsman Parent Company to repurchase, up to an aggregate of $250 million of Common Stock of a Huntsman Parent Company. In determining the aggregate amount of Restricted Payments available to be made subsequent referred to the Designated Date in accordance with clause (iii3) of the immediately preceding paragraph, cash amounts expended pursuant to clauses (1), (2), (3)(ii)(A) and (4) shall be included in such calculation and Restricted Payments made pursuant to the other clauses paragraph of this paragraph shall not be so included. Not later than the date of making any Restricted Payment pursuant to clause (iii) of the second preceding paragraph or clause (9) of the immediately preceding paragraph, the Company shall deliver to the Trustee an officers’ certificate stating that such Restricted Payment complies with this Indenture and setting forth in reasonable detail the basis upon which the required calculations were computed, which calculations may be based upon the Company’s quarterly financial statements last provided to the Trustee pursuant to Section 4.094.3.
Appears in 1 contract
Samples: Universal Outdoor Inc
Limitation on Restricted Payments. The On and after the Issue Date the Company shall not, and shall not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, make any Restricted Payment if at the time of Payment, if, after giving effect to such Restricted Payment or immediately after giving effect theretoon a PRO FORMA basis, (i1) a Default or an Event of Default shall have occurred and be continuing, (ii2) the Company is not able permitted to incur at least $1.00 of additional Indebtedness other than Permitted Indebtedness pursuant to the Leverage Ratio in compliance with Section 4.124.11, or (iii3) the aggregate amount of all Restricted Payments made by the Company and its Subsidiaries, including after giving effect to such proposed Restricted Payment made Payment, from and after June 30the Issue Date, 2006, including, the Fair Market Value as determined reasonably and in good faith by the Board of Managers of the Company of non-cash amounts constituting Restricted Payments shall would exceed the sum of: 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 the Company earned from June 30, 2006 through the last day of the last full fiscal quarter immediately preceding the date the Restricted Payment occurs (the “Reference Date”) (treating such period as a single accounting period); plus (xa)(x) 100% of the aggregate net cash proceeds Consolidated EBITDA of the Company and its Consolidated Subsidiaries for the period (taken as one accounting period), commencing on the first day of the first full fiscal quarter commencing after the Issue Date, to and including the last day of the fiscal quarter ended immediately prior to the date of each such calculation (or, in the event Consolidated EBITDA for such period is a deficit, then minus 100% of such deficit) less (y) 1.4 times Consolidated Fixed Charges for the same period plus (b) the aggregate Net Cash Proceeds received by the Company from any Person (other than a Subsidiary of the Company) from Common Stock Offering and the issuance and sale subsequent to June 30XXXXx Offering, 2006 of Qualified Capital Stock of the Company (other than Specified Venture Capital Stock) or debt securities of the Company that are, upon issuance, convertible into or exchangeable for Qualified Capital Stock of the Company, but only when and to the extent such debt securities are converted into or exchanged for Qualified Capital Stock of the Company; plus (yc) without duplication of any amounts included in clause (iii)(x) above, 100% of the aggregate net cash proceeds of any equity contribution Net Cash Proceeds received by the Company from the sale of its Qualified Capital Stock (other than (i) to a holder Subsidiary of the Company’s Capital Stock subsequent Company and (ii) to June 30the extent applied in connection with a Qualified Exchange), 2006; plus after the Issue Date. The foregoing clauses (z2) $400 million. Notwithstanding the foregoing, the provisions set forth in and (3) of the immediately preceding paragraph shall paragraph, however, will not prohibit: prohibit (1w) payments to the Parent Guarantor to reimburse the Parent Guarantor for reasonable and necessary corporate and administrative expenses, (x) Restricted Investments, PROVIDED, that, after giving PRO FORMA effect to such Restricted Investment, the aggregate amount of all such Restricted Investments made on or after the Issue Date that are outstanding (after giving effect to any such Restricted Investments that are returned to the Company or the Subsidiary Guarantor that made such prior Restricted Investment, without restriction, in cash on or prior to the date of any such calculation) at any time does not exceed $25.0 million, (y) a Qualified Exchange and (z) the payment of any dividend on Qualified Capital Stock within 60 days after the date of its declaration of if such dividend if the dividend would could have been permitted made on the date of declaration; (2) such declaration in compliance with the acquisition foregoing provisions. The full amount of any shares of Capital Stock Restricted Payment made pursuant to the foregoing clauses (x) and (z) of the Companyimmediately preceding sentence, either (i) solely in exchange for shares of Qualified Capital Stock of the Company or (ii) if no Default or Event of Default shall have occurred and however, will be continuing, through the application of net cash proceeds of a substantially concurrent Equity Offering (other than to a Subsidiary of the Company); (3) the acquisition or repayment of any Indebtedness of the Company that is subordinate or junior in right of payment to the Notes either (i) solely in exchange for shares of Qualified Capital Stock of the Company, or (ii) if no Default or Event of Default shall have occurred and be continuing, through the application of net cash proceeds of (A) a substantially concurrent Equity Offering or (B) incurrence for cash of Refinancing Indebtedness, (deducted in the case calculation of (A) or (B), other than to a Subsidiary of the Company); (4) so long as no Default or Event of Default shall have occurred and be continuing, repurchases by the Company of, or dividends to a Huntsman Parent Company to permit repurchases by a Huntsman Parent Company of, Common Stock of the Company or a Huntsman Parent Company from employees of the Company or any of its Subsidiaries or their authorized representatives upon the death, disability or termination of employment of such employees, in an aggregate amount not to exceed $25 million in any calendar year; (5) the redemption or repurchase of any Common Stock of the Company held by a Restricted Subsidiary of the Company which obtained such Common Stock directly from the Company; (6) distributions to any Huntsman Parent Company in accordance with the Tax Sharing Agreement; (7) payments to any Huntsman Parent Company for legal, audit and other expenses directly relating to the administration of such Huntsman Parent Company not to exceed $10.0 million in any fiscal year; (8) the payment of consideration by a third party to equity holders of the Company; (9) additional Restricted Payments in an aggregate amount not to exceed $225 million since the Designated Date; (10) the payment of dividends or distributions to any Huntsman Parent Company which are contemporaneously applied to pay dividends on common stock of the Huntsman Public Parent at a rate not to exceed $0.40 per share per annum (such amount to be appropriately adjusted to reflect any stock split, reverse stock split, stock dividend, stock issuance or similar transactions made after the Designated Date so that the aggregate amount of dividends payable after such transaction is the same as the amount payable immediately prior to such transaction); (11) payments of dividends on Disqualified Capital Stock issued in accordance with Section 4.12; and (12) if the Consolidated Leverage Ratio of the Company, calculated after giving pro forma effect to any repurchase under this clause (12), is less than 2.5 to 1.0, then the Company may repurchase or dividend to a Huntsman Parent Company to repurchase, up to an aggregate of $250 million of Common Stock of a Huntsman Parent Company. In determining the aggregate amount of Restricted Payments available to be made subsequent pursuant to the Designated Date in accordance with clause (iii3) of the immediately preceding paragraph, cash amounts expended pursuant to clauses (1), (2), (3)(ii)(A) and (4) shall be included in such calculation and Restricted Payments made pursuant to the other clauses of this paragraph shall not be so included. Not later than the date of making any Restricted Payment pursuant to clause (iii) of the second preceding paragraph or clause (9) of the immediately preceding paragraph, the Company shall deliver to the Trustee an officers’ certificate stating that such Restricted Payment complies with this Indenture and setting forth in reasonable detail the basis upon which the required calculations were computed, which calculations may be based upon the Company’s quarterly financial statements last provided to the Trustee pursuant to Section 4.09.
Appears in 1 contract
Samples: Indenture (Talk Radio Network Inc)
Limitation on Restricted Payments. The Company shall Holdings will not, and shall will not cause or permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, make any Restricted Payment if at the time of such Restricted Payment or immediately after giving effect thereto, Payment: -71- (ia) a Default or an Event of Default shall have occurred and be continuingcontinuing or shall occur as a con- sequence thereof; (b) after giving effect to such Restricted Payment (including, without limi- tation, the incurrence of any Indebtedness to finance such Restricted Payment), the Consolidated Fixed Charge Coverage Ratio would be less than 2:00 to 1:00; or (iic) the Company is not able amount of such Restricted Payment, when added to incur at least $1.00 of additional Indebtedness other than Permitted Indebtedness in compliance with Section 4.12, or (iii) the aggregate amount of all other Restricted Payments including such proposed Restricted Payment made after June 30the Issue Date (other than Re- stricted Payments made pursuant to clauses (b), 2006(c), including(d), the Fair Market Value as determined reasonably and in good faith by the Board of Managers (e), (f), (i), (k), (l), (n) or (o) of the Company of non-cash amounts constituting next paragraph), exceeds the sum (the “Restricted Payments shall exceed the sum of: Basket”) of (wwith- out duplication): (1) 50% of the cumulative Consolidated Net Income determined in accordance with GAAP for the period (or taken as one accounting period) commencing on the first day of the fiscal quarter during which the Issue Date occurs to and in- cluding the last day of the fiscal quarter ended immediately prior to the date of such calculation for which consolidated financial statements are available (or, if cumulative such Consolidated Net Income shall be a lossdeficit, minus 100% of such loss) of the Company earned from June 30aggre- gate deficit), 2006 through the last day of the last full fiscal quarter immediately preceding the date the Restricted Payment occurs (the “Reference Date”) (treating such period as a single accounting period); plus (x2) 100% of the aggregate net cash proceeds and the fair market value, as determined in good faith by Holdings, of property and marketable se- curities, in each case received by the Company Holdings from any Person (other than a Subsidiary of the Companya) from the issuance and sale subsequent to June 30, 2006 of Qualified Capital Stock Equity Interests of Holdings (or any direct or indirect parent compa- ny of Holdings) after the Company Issue Date or (other than Specified Venture Capital Stockb) the issuance or sale of convertible or exchangeable Disqualified Equity Interests of Holdings (or any direct or indi- rect parent company of Holdings) or debt securities of the Company that are, upon issuance, convertible into or exchangeable for Qualified Capital Stock debt securi- ties of the CompanyHoldings (or any direct or indirect parent company of Holdings), but only when and to the extent such debt securities are in each case that have been converted into or exchanged for Qualified Capital Stock Equity Interests of the Company; Holdings (or any direct or indirect parent company of Holdings), 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 Holdings at the Company from time of such conver- sion or exchange, or (c) any capital contribution made to Holdings, in each case other than (A) any such proceeds which are used to effect a holder Make-Whole Redemption (as defined in paragraph 5 of the Company’s Capital Stock subsequent to June 30Notes) of Notes, 2006; plus (zB) $400 million. Notwithstanding the foregoing, the provisions set forth in the immediately preceding paragraph shall 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) the acquisition of any shares of Capital Stock of the Company, either (i) solely in exchange for shares of Qualified Capital Stock of the Company proceeds or (ii) if no Default or Event of Default shall have occurred and be continuing, through the application of net cash proceeds of a substantially concurrent Equity Offering (other than to assets received from a Subsidiary of the Company); Holdings or (3C) the acquisition or repayment of any Indebtedness of the Company that is subordinate or junior in right of payment contributions to the Notes either (i) solely in exchange for shares of Qualified Capital Stock of the Company, or (ii) if no Default or Event of Default shall extent such amounts have occurred and be continuing, through the application of net cash proceeds of (A) a substantially concurrent Equity Offering or (B) incurrence for cash of Refinancing Indebtedness, (in the case of (A) or (B), other than to a Subsidiary of the Company); (4) so long as no Default or Event of Default shall have occurred and be continuing, repurchases by the Company of, or dividends to a Huntsman Parent Company to permit repurchases by a Huntsman Parent Company of, Common Stock of the Company or a Huntsman Parent Company from employees of the Company or any of its Subsidiaries or their authorized representatives upon the death, disability or termination of employment of such employees, in an aggregate amount not to exceed $25 million in any calendar year; (5) the redemption or repurchase of any Common Stock of the Company held by a Restricted Subsidiary of the Company which obtained such Common Stock directly from the Company; (6) distributions to any Huntsman Parent Company in accordance with the Tax Sharing Agreement; (7) payments to any Huntsman Parent Company for legal, audit and other expenses directly relating to the administration of such Huntsman Parent Company not to exceed $10.0 million in any fiscal year; (8) the payment of consideration by a third party to equity holders of the Company; (9) additional Restricted Payments in an aggregate amount not to exceed $225 million since the Designated Date; (10) the payment of dividends or distributions to any Huntsman Parent Company which are contemporaneously been applied to pay dividends on common stock of the Huntsman Public Parent at a rate not to exceed $0.40 per share per annum (such amount to be appropriately adjusted to reflect any stock split, reverse stock split, stock dividend, stock issuance or similar transactions made after the Designated Date so that the aggregate amount of dividends payable after such transaction is the same as the amount payable immediately prior to such transaction); (11) payments of dividends on Disqualified Capital Stock issued in accordance with Section 4.12; and (12) if the Consolidated Leverage Ratio of the Company, calculated after giving pro forma effect to any repurchase under this clause (12), is less than 2.5 to 1.0, then the Company may repurchase or dividend to a Huntsman Parent Company to repurchase, up to an aggregate of $250 million of Common Stock of a Huntsman Parent Company. In determining the aggregate amount of Restricted Payments made subsequent to the Designated Date in accordance with clause (iiic) of the immediately preceding next succeeding paragraph, cash amounts expended pursuant to clauses plus (1), 3) the aggregate amount by which Indebtedness (2), (3)(ii)(Aother than any Subordinated Indebtedness) and (4) shall be included in such calculation and of Holdings or any Restricted Payments made pursuant Subsidiary is re- duced on the consolidated balance sheet of the Consolidated Group upon the conversion or exchange subsequent to the other clauses of this paragraph shall not be so included. Not later than the date of making any Restricted Payment pursuant to clause (iii) of the second preceding paragraph or clause (9) of the immediately preceding paragraph, the Company shall deliver to the Trustee an officers’ certificate stating that such Restricted Payment complies with this Indenture and setting forth in reasonable detail the basis upon which the required calculations were computed, which calculations may be based upon the Company’s quarterly financial statements last provided to the Trustee pursuant to Section 4.09.Issue Date into Qualified Equity In-
Appears in 1 contract
Samples: James Hardie Industries PLC
Limitation on Restricted Payments. The Company shall not, and shall not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, make any Restricted Payment if at the time of such Restricted Payment or immediately after giving effect thereto, (i) a Default or an Event of Default shall have occurred and be continuing, (ii) the Company is not able to incur at least $1.00 of additional Indebtedness other than Permitted Indebtedness in compliance with Section 4.12, or (iii) the aggregate amount of Restricted Payments including such proposed Restricted Payment made after June 30, 2006, including, the Fair Market Value as determined reasonably and in good faith by the Board of Managers of the Company of non-cash amounts constituting Restricted Payments 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 the Company earned from June 30, 2006 through the last day of the last full fiscal quarter immediately preceding 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 the Company from any Person (other than a Subsidiary of the Company) from the issuance and sale subsequent to June 30, 2006 of Qualified Capital Stock of the Company (other than Specified Venture Capital Stock) Issue Date and on or debt securities of the Company that are, upon issuance, convertible into or exchangeable for Qualified Capital Stock of the Company, but only when and prior to the extent such debt securities are converted into or exchanged for Reference Date of Qualified Capital Stock of the Company; 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 the Company from a holder of the Company’s 's Capital Stock subsequent (excluding, in the case of clauses (iii)(x) and (y), any net cash proceeds from a Public Equity Offering to June 30, 2006the extent used to redeem the Notes in compliance with the provisions set forth under paragraph (6)(b) of the Notes; plus (z) $400 millionwithout duplication, the sum of (1) the aggregate amount returned in cash on or with respect to Investments (other than Permitted Investments) made subsequent to the Issue Date whether through interest payments, principal payments, dividends or other distributions or payments, (2) the net cash proceeds received by the Company or any of its Restricted Subsidiaries from the disposition of all or any portion of such Investments (other than to a Subsidiary of the Company) and (3) upon redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary, the fair market value of such Subsidiary; PROVIDED, HOWEVER, that the sum of clauses (1), (2) and (3) above shall not exceed the aggregate amount of all such Investments made subsequent to the Issue Date. Notwithstanding the foregoing, the provisions set forth in the immediately preceding paragraph shall 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, the acquisition of any shares of Capital Stock of the Company, either (i) solely in exchange for shares of Qualified Capital Stock of the Company or (ii) through the application of net proceeds of a substantially concurrent sale for cash (other than to a Subsidiary of the Company) of, or a contribution of capital in respect of, shares of Qualified Capital Stock of the Company; (3) if no Default or Event of Default shall have occurred and be continuing, through the application of net cash proceeds of a substantially concurrent Equity Offering (other than to a Subsidiary of the Company); (3) the acquisition or repayment of any Indebtedness of the Company that is subordinate or junior in right of payment to the Notes either (i) solely in exchange for shares of Qualified Capital Stock of the Company, or (ii) if no Default or Event of Default shall have occurred and be continuing, through the application of net cash proceeds of (A) a substantially concurrent Equity Offering or (B) incurrence sale for cash of Refinancing Indebtedness, (in the case of (A) or (B), other than to a Subsidiary of the Company)) of (A) shares of Qualified Capital Stock of the Company or (B) Refinancing Indebtedness; (4) so long as no Default or Event of Default shall have occurred and be continuing, repurchases by the Company of, or dividends to a Huntsman Parent Company to permit repurchases by a Huntsman Parent Company of, of Common Stock of the Company or a Huntsman Parent Company from employees of the Company or any of its Subsidiaries or their authorized representatives representatives, whether such Common Stock is owned directly or indirectly by such employees or their authorized representatives, upon the death, disability or termination of employment of such employees, in an aggregate amount not to exceed $25 million 750,000 in any calendar year; (5) year plus the redemption aggregate cash proceeds from any payments on life insurance policies for which the Company or repurchase its Subsidiaries is the beneficiary with respect to any employees, officers or directors of any the Company and its Subsidiaries which proceeds are used to purchase the Common Stock of the Company held by any such employees, officers or directors; and (5) if no Default or Event of Default shall have occurred and be continuing, Investments made with the net proceeds of a Restricted substantially concurrent sale for cash (other than to a Subsidiary of the Company which obtained such Common Company) of shares of Qualified Capital Stock directly from the Company; (6) distributions to any Huntsman Parent Company in accordance with the Tax Sharing Agreement; (7) payments to any Huntsman Parent Company for legal, audit and other expenses directly relating to the administration of such Huntsman Parent Company not to exceed $10.0 million in any fiscal year; (8) the payment of consideration by a third party to equity holders of the Company; (9) additional Restricted Payments in an aggregate amount not to exceed $225 million since the Designated Date; (10) the payment of dividends or distributions to any Huntsman Parent Company which are contemporaneously applied to pay dividends on common stock of the Huntsman Public Parent at a rate not to exceed $0.40 per share per annum (such amount to be appropriately adjusted to reflect any stock split, reverse stock split, stock dividend, stock issuance or similar transactions made after the Designated Date so that the aggregate amount of dividends payable after such transaction is the same as the amount payable immediately prior to such transaction); (11) payments of dividends on Disqualified Capital Stock issued in accordance with Section 4.12; and (12) if the Consolidated Leverage Ratio of the Company, calculated after giving pro forma effect to any repurchase under this clause (12), is less than 2.5 to 1.0, then the Company may repurchase or dividend to a Huntsman Parent Company to repurchase, up to an aggregate of $250 million of Common Stock of a Huntsman Parent Company. In determining the aggregate amount of Restricted Payments made subsequent to the Designated Issue Date in accordance with clause (iii) of the immediately preceding paragraph, cash amounts expended pursuant to clauses (1), (22)(ii), (3)(ii)(A4) and (45) shall be included in such calculation and Restricted Payments made pursuant to the other clauses of this paragraph shall not be so included. Not later than the date of making any Restricted Payment pursuant to clause (iii) of the second preceding paragraph or clause (9) of the immediately preceding paragraph, the Company shall deliver to the Trustee an officers’ certificate stating that such Restricted Payment complies with this Indenture and setting forth in reasonable detail the basis upon which the required calculations were computed, which calculations may be based upon the Company’s quarterly financial statements last provided to the Trustee pursuant to Section 4.09calculation.
Appears in 1 contract
Samples: Geo Specialty Chemicals Inc
Limitation on Restricted Payments. The Company Issuers and the Guarantors, if any, shall not, and shall not cause or permit any of its Restricted their Subsidiaries to, individually or collectively, directly or indirectly, make any Restricted Payment if at the time of if, after giving effect to such Restricted Payment or immediately after giving effect theretoon a pro forma basis, (i) a Default or an Event of Default shall have occurred and be continuing, (ii) the Company Sun International is not able permitted to incur at least $1.00 of additional Indebtedness other than Permitted Indebtedness pursuant to the Debt Incurrence Ratio contained in compliance with Section 4.12, 4.10 (to the extent applicable) or (iii) the aggregate amount of all Restricted Payments made by Sun International and its Subsidiaries, including after giving effect to such proposed Restricted Payment made Payment, from and after June 30the Issue Date, 2006, including, the Fair Market Value as determined reasonably and in good faith by the Board of Managers of the Company of non-cash amounts constituting Restricted Payments shall would exceed the sum of: of (wa) 50% of the cumulative aggregate Consolidated Net Income of Sun International for the period (or if cumulative taken as one accounting period) commencing January 1, 1996 to and including the last day of the fiscal quarter ended immediately prior to the date of each such calculation (or, in the event Consolidated Net Income shall be for such period is a lossdeficit, then minus 100% of such loss) of the Company earned from June 30, 2006 through the last day of the last full fiscal quarter immediately preceding the date the Restricted Payment occurs (the “Reference Date”deficit) (treating such period as a single accounting periodnot giving pro forma effect to the acquisition of Griffin Gaming & Entertainment, Inc. for periods prior to its consummation); plus , plxx (x) 100% of the aggregate net cash proceeds Net Cash Proceeds received by Sun International from the Company from any Person sale of its Qualified Capital Stock (other than (i) to a Subsidiary of the CompanySun International and (ii) from the issuance and sale subsequent to June 30, 2006 of Qualified Capital Stock of the Company (other than Specified Venture Capital Stock) or debt securities of the Company that are, upon issuance, convertible into or exchangeable for Qualified Capital Stock of the Company, but only when and to the extent such debt securities are converted into or exchanged for applied in connection with a Qualified Capital Stock of Exchange) after the Company; Issue Date, 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 the Company from a holder of the Company’s Capital Stock subsequent to June 30, 2006; plus (zc) $400 50 million. Notwithstanding the foregoing, the provisions set forth in the The immediately preceding paragraph shall paragraph, however, will not prohibit: prohibit (1x) a Qualified Exchange, (y) the payment of any dividend on Capital Stock within 60 days after the date of its declaration of if such dividend if the dividend would could have been permitted made on the date of declaration; such declaration in compliance with the foregoing provisions and (2) the acquisition of any shares of Capital Stock of the Company, either (i) solely in exchange for shares of Qualified Capital Stock of the Company or (ii) if no Default or Event of Default shall have occurred and be continuing, through the application of net cash proceeds of a substantially concurrent Equity Offering (other than to a Subsidiary of the Company); (3) the acquisition or repayment of any Indebtedness of the Company that is subordinate or junior in right of payment to the Notes either (i) solely in exchange for shares of Qualified Capital Stock of the Company, or (ii) if no Default or Event of Default shall have occurred and be continuing, through the application of net cash proceeds of (A) a substantially concurrent Equity Offering or (B) incurrence for cash of Refinancing Indebtedness, (in the case of (A) or (B), other than to a Subsidiary of the Company); (4) so long as no Default or Event of Default shall have occurred and be continuing, repurchases by the Company of, or dividends to a Huntsman Parent Company to permit repurchases by a Huntsman Parent Company of, Common Stock of the Company or a Huntsman Parent Company from employees of the Company or any of its Subsidiaries or their authorized representatives upon the death, disability or termination of employment of such employees, in an aggregate amount not to exceed $25 million in any calendar year; (5z) the redemption or repurchase of any Common Capital Stock or Indebtedness of the Company Issuers or their Subsidiaries (other than Capital Stock or Indebtedness held by a Sun International Investments Limited, its shareholders or Permitted Holders), if the holder or beneficial owner of such Capital Stock or Indebtedness is required to be found suitable by any Gaming Authority to own or vote any security and is found unsuitable by any such Gaming Authority to so own or vote such security. The full amount of any Restricted Subsidiary Payment made pursuant to the foregoing clauses (y) and (z) (but not pursuant to clause (x)) of the Company which obtained such Common Stock directly from immediately preceding sentence, however, will be deducted in the Company; (6) distributions to any Huntsman Parent Company in accordance with the Tax Sharing Agreement; (7) payments to any Huntsman Parent Company for legal, audit and other expenses directly relating to the administration calculation of such Huntsman Parent Company not to exceed $10.0 million in any fiscal year; (8) the payment of consideration by a third party to equity holders of the Company; (9) additional Restricted Payments in an aggregate amount not to exceed $225 million since the Designated Date; (10) the payment of dividends or distributions to any Huntsman Parent Company which are contemporaneously applied to pay dividends on common stock of the Huntsman Public Parent at a rate not to exceed $0.40 per share per annum (such amount to be appropriately adjusted to reflect any stock split, reverse stock split, stock dividend, stock issuance or similar transactions made after the Designated Date so that the aggregate amount of dividends payable after such transaction is the same as the amount payable immediately prior to such transaction); (11) payments of dividends on Disqualified Capital Stock issued in accordance with Section 4.12; and (12) if the Consolidated Leverage Ratio of the Company, calculated after giving pro forma effect to any repurchase under this clause (12), is less than 2.5 to 1.0, then the Company may repurchase or dividend to a Huntsman Parent Company to repurchase, up to an aggregate of $250 million of Common Stock of a Huntsman Parent Company. In determining the aggregate amount of Restricted Payments available to be made subsequent referred to the Designated Date in accordance with clause (iii) of the immediately preceding paragraph, cash amounts expended pursuant to clauses (1), (2), (3)(ii)(A) and (4) shall be included in such calculation and Restricted Payments made pursuant to the other clauses of this paragraph shall not be so included. Not later than the date of making any Restricted Payment pursuant to clause (iii) of the second preceding paragraph or clause (9) of the immediately preceding paragraph, the Company shall deliver to the Trustee an officers’ certificate stating that such Restricted Payment complies with this Indenture and setting forth in reasonable detail the basis upon which the required calculations were computed, which calculations may be based upon the Company’s quarterly financial statements last provided to the Trustee pursuant to Section 4.09.
Appears in 1 contract
Limitation on Restricted Payments. The Company shall will not, and shall will not cause or permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, make any Restricted Payment if Payment, unless at the time of such Restricted Payment or immediately and after giving effect thereto, to the proposed Restricted Payment (ia) a no Default or an Event of Default shall have occurred and be continuingcontinuing (or would result therefrom), (iib) the Company is not able to could incur at least $1.00 of additional Indebtedness other than Permitted Indebtedness under the tests described in compliance with the first sentence under Section 4.12, or 1010 hereof and (iiic) the aggregate amount of such Restricted Payment and all Restricted Payments including such proposed (the amount of any Restricted Payment not made after June 30, 2006, including, the in cash will be based on Fair Market Value as determined reasonably and in good faith Value) declared or made on or after the Issue Date by the Board of Managers of the Company of non-cash amounts constituting Restricted Payments or any Subsidiary shall not exceed the sum of: of (wi) 50% of the cumulative Consolidated Net Income (or if cumulative such Consolidated Net Income shall be a lossdeficit, minus 100% of such lossdeficit) of the Company earned from June 30, 2006 through aggregate Consolidated Net Income accrued during the period beginning on the first day of the fiscal quarter in which the Issue Date falls and ending on the last day of the last full fiscal quarter ending immediately preceding prior to the date the of such proposed Restricted Payment occurs (the “Reference Date”) (treating such period as a single accounting period); Payment, plus (xii) 100% of an amount equal to the aggregate net cash proceeds received by the Company Company, subsequent to the Issue Date, from any Person the issuance or sale (other than to a Subsidiary or an employee stock ownership plan or trust established by the Company for the benefit of the Companyits employees) from the issuance and sale subsequent to June 30of shares of its Capital Stock, 2006 of Qualified excluding Redeemable Stock, but including Capital Stock issued upon the exercise of the Company options, warrants or rights to purchase Capital Stock (other than Specified Venture Capital Redeemable Stock) or debt securities of the Company that are, upon issuance, convertible into or exchangeable for Qualified Capital Stock of the Company, but only when and the liability (expressed as a positive number) in accordance with GAAP in respect of any Indebtedness of the Company or carrying value of Redeemable Stock, which has been converted into, exchanged for or satisfied by the issuance of shares of Capital Stock (other than Redeemable Stock) of the Company, subsequent to the Issue Date plus (iii) to the extent not otherwise included in Consolidated Net Income, the net reduction in Investments in Non-Recourse Subsidiaries or joint ventures resulting from dividends, repayments of loans or advances, releases or discharges of guarantees or other obligations, or other transfers of assets, in each case to the Company or a Subsidiary after the Issue Date from any Non-Recourse Subsidiary or joint venture or from the redesignation of a Non-Recourse Subsidiary as a Subsidiary (valued in each case as provided in the definition of Investment), not to exceed, in the case of any Non-Recourse Subsidiary or joint venture, the total amount of Investments (other than Permitted Investments) in such debt securities are converted into Non- Recourse Subsidiary or exchanged for Qualified Capital Stock of joint venture made by the Company; Company and its Subsidiaries in such Non-Recourse Subsidiary or joint venture existing on or made after the Issue Date, plus (yiv) without duplication of any amounts to the extent not otherwise included in Consolidated Net Income or in clause (iii)(xiii) above, 100% the total amount of Investments in joint ventures (calculated as of the aggregate net cash proceeds Issue Date) which have become Wholly Owned Subsidiaries of any equity contribution received by the Company from a holder of the Company’s Capital Stock subsequent to June 30the Issue Date, 2006; plus (zv) $400 90 million. Notwithstanding the foregoing, the The foregoing provisions set forth in the immediately preceding paragraph shall will not prohibit: prevent (1A) the payment of any dividend on Capital Stock of any class within 60 days after the date of its declaration if at the date of declaration such payment would be permitted by this Indenture, provided that at the time of the declaration of such dividend if the dividend would have been permitted on the date of declaration; (2) the acquisition of any shares of Capital Stock of the Companydividend, either (i) solely in exchange for shares of Qualified Capital Stock of the Company or (ii) if no Default or Event of Default shall have occurred and be continuing; (B) any repurchase or redemption of the Capital Stock or Subordinated Indebtedness of the Company made by exchange for Capital Stock of the Company (other than Redeemable Stock), through or out of the application of net cash proceeds of a from the substantially concurrent Equity Offering issuance or sale (other than to a Subsidiary Subsidiary) of Capital Stock of the CompanyCompany (other than Redeemable Stock), provided that the net cash proceeds from such sale are excluded from computations under clause (c)(ii) above to the extent such proceeds are applied to purchase or redeem such Capital Stock or Subordinated Indebtedness; and (3C) the acquisition any repurchase or repayment redemption of any Subordinated Indebtedness of the Company that is subordinate or junior in right of payment to the Notes either (i) solely in exchange for shares for, or out of Qualified Capital Stock the net cash proceeds from the substantially concurrent sale of, new Subordinated Indebtedness of the Company, or (ii) if no Default or Event of Default shall have occurred and be continuing, through the application of net cash proceeds of (A) a substantially concurrent Equity Offering or (B) incurrence for cash of Refinancing Indebtedness, (in the case of (A) or (B), other than to a Subsidiary of the Company); (4) so long as no Default such Subordinated Indebtedness (x) is subordinated to the Debentures at least to the same extent as the Subordinated Indebtedness so exchanged, purchased or Event of Default shall have occurred and be continuingredeemed, repurchases by (y) has a stated maturity later than the Company of, or dividends to a Huntsman Parent Company to permit repurchases by a Huntsman Parent Company of, Common Stock stated maturity of the Company Subordinated Indebtedness so exchanged, purchased or a Huntsman Parent Company from employees redeemed and (z) has an Average Life at the time incurred that is greater than the remaining Average Life of the Company Subordinated Indebtedness so exchanged, purchased or any of its Subsidiaries or their authorized representatives upon the death, disability or termination of employment of such employees, in an aggregate amount not to exceed $25 million in any calendar year; (5) the redemption or repurchase of any Common Stock of the Company held by a Restricted Subsidiary of the Company which obtained such Common Stock directly from the Company; (6) distributions to any Huntsman Parent Company in accordance with the Tax Sharing Agreement; (7) payments to any Huntsman Parent Company for legal, audit and other expenses directly relating to the administration of such Huntsman Parent Company not to exceed $10.0 million in any fiscal year; (8) the payment of consideration by a third party to equity holders of the Company; (9) additional redeemed. Restricted Payments in an aggregate amount not to exceed $225 million since the Designated Date; (10) the payment of dividends or distributions to any Huntsman Parent Company which are contemporaneously applied to pay dividends on common stock of the Huntsman Public Parent at a rate not to exceed $0.40 per share per annum (such amount permitted to be appropriately adjusted to reflect any stock split, reverse stock split, stock dividend, stock issuance or similar transactions made after as described in the Designated Date so that preceding sentence will be excluded in calculating the aggregate amount of dividends payable after such transaction is the same as the amount payable immediately prior to such transaction); (11) payments of dividends on Disqualified Capital Stock issued in accordance with Section 4.12; and (12) if the Consolidated Leverage Ratio of the Company, calculated after giving pro forma effect to any repurchase under this clause (12), is less than 2.5 to 1.0, then the Company may repurchase or dividend to a Huntsman Parent Company to repurchase, up to an aggregate of $250 million of Common Stock of a Huntsman Parent Company. In determining the aggregate amount of Restricted Payments thereafter, except such Restricted Payments made subsequent to the Designated Date as described in accordance with clause (iii) of the immediately preceding paragraph, cash amounts expended pursuant to clauses (1A), (2), (3)(ii)(A) and (4) shall which will be included in such calculation and calculating the amount of Restricted Payments made pursuant to the other clauses of this paragraph shall not be so included. Not later than the date of making any Restricted Payment pursuant to clause (iii) of the second preceding paragraph or clause (9) of the immediately preceding paragraph, the Company shall deliver to the Trustee an officers’ certificate stating that such Restricted Payment complies with this Indenture and setting forth in reasonable detail the basis upon which the required calculations were computed, which calculations may be based upon the Company’s quarterly financial statements last provided to the Trustee pursuant to Section 4.09thereafter.
Appears in 1 contract
Samples: Pride International Inc
Limitation on Restricted Payments. The Company shall not, and shall not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, make any Restricted Payment if at the time of such Restricted Payment or immediately after giving effect thereto, (i) a Default or an Event of Default shall have occurred and be continuing, (ii) the Company is not able to incur at least $1.00 of additional Indebtedness other than Permitted Indebtedness in compliance with Section 4.12, or (iii) the aggregate amount of Restricted Payments including such proposed Restricted Payment made after June 30, 20061999, including, the Fair Market Value as determined reasonably and in good faith by the Board of Managers of the Company Company) of non-cash amounts constituting Restricted Payments shall exceed the sum of: (wx) 50% of the cumulative Consolidated Net Income (or if cumulative Consolidated Net Income shall be a loss, minus 100% of such loss) of the Company earned from June 30, 2006 1999 through the last day of the last full fiscal quarter immediately preceding the date the Restricted Payment occurs (the “Reference Date”) (treating such period as a single accounting period); plus (xy) 100% of the aggregate net cash proceeds received by the Company from any Person (other than a Subsidiary of the Company) from the issuance and sale subsequent to June 30, 2006 1999 and on or prior to the Reference Date of Qualified Capital Stock of the Company (other than Specified Venture Capital Stock) or debt securities of the Company that are, upon issuance, convertible into or exchangeable for Qualified Capital Stock of the Company, but only when and to the extent such debt securities are converted into or exchanged for Qualified Capital Stock of the Company; plus (yz) without duplication of any amounts included in clause (iii)(xiii)(y) above, 100% of the aggregate net cash proceeds of any equity contribution received by the Company from a holder of the Company’s Capital Stock subsequent to June 30, 2006; plus (z) $400 millionStock. Notwithstanding the foregoing, the provisions set forth in the immediately preceding paragraph shall 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) the acquisition of any shares of Capital Stock of the Company, either (i) solely in exchange for shares of Qualified Capital Stock of the Company or (ii) if no Default or Event of Default shall have occurred and be continuing, through the application of net cash proceeds of a substantially concurrent Equity Offering (other than to a Subsidiary of the Company); (3) the acquisition or repayment of any Indebtedness of the Company that is subordinate or junior in right of payment to the Notes either (i) solely in exchange for shares of Qualified Capital Stock of the Company, or (ii) if no Default or Event of Default shall have occurred and be continuing, through the application of net cash proceeds of (A) a substantially concurrent Equity Offering or (B) incurrence for cash of Refinancing Indebtedness, (in the case of (A) or (B), other than to a Subsidiary of the Company); (4) so long as no Default or Event of Default shall have occurred and be continuing, repurchases by the Company of, or dividends to a Huntsman Parent Company to permit repurchases by a Huntsman Parent Company of, Common Stock of the Company or a Huntsman Parent Company from employees of the Company or any of its Subsidiaries or their authorized representatives upon the death, disability or termination of employment of such employees, in an aggregate amount not to exceed $25 4 million in any calendar year; (5) the redemption or repurchase of any Common Stock of the Company held by a Restricted Subsidiary of the Company which obtained such Common Stock directly from the Company; (6) distributions to any Huntsman Parent Company in accordance with the Tax Sharing Agreement; (7) payments to any Huntsman Parent Company for legal, audit and other expenses directly relating to the administration of such Huntsman Parent Company not to exceed $10.0 3.0 million in any fiscal year; (8) the payment of consideration by a third party to equity holders of the Company; (9) additional Restricted Payments in an aggregate amount not to exceed $225 10 million since the Designated Issue Date; and (10) the payment of dividends or distributions to any Huntsman Parent Company which are contemporaneously applied to pay dividends on common stock of the Huntsman Public Parent at a rate not to exceed $0.40 per share per annum (such amount to be appropriately adjusted to reflect any stock split, reverse stock split, stock dividend, stock issuance or similar transactions made after the Designated Date so that the aggregate amount of dividends payable after such transaction is the same as the amount payable immediately prior to such transaction); (11) payments of dividends on Disqualified Capital Stock issued in accordance with Section 4.12; and (12) if the Consolidated Leverage Ratio of the Company, calculated after giving pro forma effect to any repurchase under this clause (12), is less than 2.5 to 1.0, then the Company may repurchase or dividend to a Huntsman Parent Company to repurchase, up to an aggregate of $250 million of Common Stock of a Huntsman Parent Company. In determining the aggregate amount of Restricted Payments made subsequent to the Designated Date June 30, 1999 in accordance with clause (iii) of the immediately preceding paragraph, cash amounts expended pursuant to clauses (1), (2), (3)(ii)(A) and (4) shall be included in such calculation and Restricted Payments made pursuant to the other clauses of this paragraph shall not be so includedcalculation. Not later than the date of making any Restricted Payment pursuant to clause (iii) of the second preceding paragraph or clause (9) of the immediately preceding paragraph, the Company shall deliver to the Trustee an officers’ certificate stating that such Restricted Payment complies with this Indenture and setting forth in reasonable detail the basis upon which the required calculations were computed, which calculations may be based upon the Company’s quarterly financial statements last provided to the Trustee pursuant to Section 4.09.
Appears in 1 contract
Limitation on Restricted Payments. The Company shall not, and shall not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, make any Restricted Payment if at the time of such Restricted Payment or immediately after giving effect thereto, (i) a Default or an Event of Default shall have occurred and be continuing, (ii) the Company is not able to incur at least $€1.00 of additional Indebtedness other than Permitted Indebtedness in compliance with Section 4.12, or (iii) the aggregate amount of Restricted Payments including such proposed Restricted Payment made after June 30, 2006the Issue Date, including, the Fair Market Value as determined reasonably and in good faith by the Board of Managers Directors of the Company of non-cash amounts constituting Restricted Payments Payments) shall exceed the sum of: (wx) 50% of the cumulative Consolidated Net Income (or if cumulative Consolidated Net Income shall be a loss, minus 100% of such loss) of the Company earned from June 30July 1, 2006 2005 through the last day of the last full fiscal quarter immediately preceding the date the Restricted Payment occurs (the “"Reference Date”") (treating such period as a single accounting period); provided,however, that for purposes of this sub-clause (iii)(x) only, to the extent any amounts that would constitute net income but which have been used to make a Permitted Investment described in clause (v) of the definition thereof, such amounts shall be excluded from Consolidated Net Income; plus (xy) 100% of the aggregate net cash proceeds received by the Company from any Person (other than a Subsidiary of the Company) from the issuance and sale subsequent to June 30, 2006 the Issue Date and on or prior to the Reference Date of Qualified Capital Stock of the Company (other than Specified Venture Capital Stock) or debt securities of the Company that are, upon issuance, are convertible into or exchangeable for Qualified Capital Stock of the Company, but only when and to the extent such debt securities are converted into or exchanged for Qualified Capital Stock of the Company; plus (yz) without duplication of any amounts included in clause (iii)(xiii)(y) above, 100% of the aggregate net cash proceeds of any equity contribution received by the Company from a holder of the Company’s 's Capital Stock subsequent to June 30, 2006; plus (z) $400 millionStock. Notwithstanding the foregoing, the provisions set forth in the immediately preceding paragraph shall 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) the acquisition of any shares of Capital Stock of the CompanyRestricted Payments, either (i) solely in exchange ex-change for shares of Qualified Capital Stock of the Company or (ii) if no Default or Event of Default shall have occurred and be continuing, through the application of net cash proceeds of a substantially concurrent Equity Offering (other than to a Subsidiary of the Company)) or capital contribution received by the Company; (3) the acquisition or repayment of any Indebtedness of the Company that is subordinate or junior in right of payment to the Notes either (i) solely in exchange for shares of Qualified Capital Stock of the Company, or (ii) if no Default or Event of Default shall have occurred and be continuing, through the application of net cash proceeds of (A) a substantially concurrent Equity Offering or (B) incurrence for cash of Refinancing Indebtedness, (in the case of (A) or (B), other than to a Subsidiary of the Company); (4) beginning on the fifth anniversary of the Issue Date, so long as no Default or Event of Default shall have occurred and be continuing, repurchases by the Company of, or dividends to a Huntsman Parent Company to permit repurchases by a Huntsman Parent Company of, Common Stock of the Company or a Huntsman Parent Company from employees employees, former employees, directors or former directors of the Company or any of its Subsidiaries subsidiaries (or permitted transferees of such persons) or their authorized representatives upon the death, disability or termination of employment of such employeesemployees or directors, in an aggregate amount for all periods not to exceed $25 million in any calendar year2.0% of the share capital of the Company from time to time at Fair Market Value at the date of such repurchase; (5) the redemption or repurchase of any Common Stock of the Company held by a Restricted Subsidiary of the Company which obtained such Common Stock directly from the Company; (6) distributions to any Huntsman Parent Company in accordance with the Tax Sharing Agreement; (7) payments to any Huntsman Parent Company for legal, audit audit, tax and other expenses directly relating to the administration of such Huntsman Parent Company Parent, including customary compensation payable to the Parent's directors and employees, not to exceed $10.0 €1.5 million in any fiscal year; (8) the payment 6) so long as no Default or Event of consideration by a third party Default shall have occurred and be continuing (A) ongoing service fees paid to equity holders of the Company; (9) additional Restricted Payments AI Petrochemicals LLC or its designees in an aggregate amount not to exceed $225 million since the Designated Date; (10) the payment of dividends or distributions to any Huntsman Parent Company which are contemporaneously applied to pay dividends on common stock of the Huntsman Public Parent at a rate not to exceed $0.40 per share per annum (such amount to be appropriately adjusted to reflect any stock split, reverse stock split, stock dividend, stock issuance or similar transactions made after the Designated Date so that the aggregate annual amount of dividends payable after such transaction is €2.5 million (or in an aggregate annual amount of €5 million in the same as event the amount payable Company's Consolidated EBITDA for the four quarter period ending immediately prior to such transactionpayment is in excess of €800 million (after adjustment for such payments)) and (B), advisory and monitoring fees paid to AI Petrochemicals LLC or its designee in an amount equal to 0.5% of the gross transaction value of each qualified transaction as described in the Management Agreement; provided that the minimum advisory and monitoring fees per transaction shall be €250,000 and the maximum advisory and monitoring fee per transaction shall be €5 million; and (C) commercially reasonable expenses incurred by and paid to AI Petrochemical LLC or its affiliates not to exceed a cumulative amount of €1 million in any twelve months pursuant to the Management Agreement; (117) cash payments in lieu of issuing fractional shares pursuant to the exercise or conversion of any exercisable or convertible securities; (8) payments or distributions to dissenting shareholders pursuant to applicable law in connection with or in contemplation of a merger, consolidation or transfer of assets that complies with Article Five; (9) payments of dividends on Disqualified Capital Stock issued in accordance with Section 4.12; and (1210) if the Consolidated Leverage Ratio directors' fees (including non-executive directors of the Company, calculated after giving pro forma effect ) in an amount not to any repurchase under this clause exceed €1 million per year; and (12), is less than 2.5 to 1.0, then the Company may repurchase or dividend to a Huntsman Parent Company to repurchase, up to 11) additional Restricted Payments in an aggregate of $250 amount not to exceed €l 0 million of Common Stock of a Huntsman Parent Companysince the Issue Date. In determining the aggregate amount of Restricted Payments made subsequent to the Designated Issue Date in accordance with clause (iii) of the immediately preceding paragraphfirst paragraph of this Section 4.03, cash amounts expended pursuant to clauses (1), (22)(ii), (3)(ii)(A), (4) and (411) of the second paragraph of this Section 4.03 shall be included in such calculation and Restricted Payments made pursuant to the other clauses of this paragraph shall not be so includedcalculation. Not later than the date of making any Restricted Payment pursuant to clause (iii) of the second preceding first paragraph of this Section 4.03 or clause (911) of the immediately preceding paragraphsecond paragraph of this Section 4.03, the Company shall deliver to the Trustee an officers’ certificate Officer's Certificate stating that such Restricted Payment complies with this Indenture and setting forth in reasonable detail the basis upon which the required calculations were computed, which calculations may be based upon the Company’s 's quarterly financial statements last provided to the Trustee pursuant to Section 4.09.
Appears in 1 contract
Samples: Indenture (Lyondell Chemical Co)
Limitation on Restricted Payments. The Company shall not, and shall not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, make any Restricted Payment if at the time of such Restricted Payment Payment, if, immediately prior or immediately after giving effect theretothereto on a pro forma basis, (ia) a Default or an Event of Default shall have occurred and would occur or be continuing, (iib) the Company is not able Company's Annualized Operating Cash Flow Ratio for the Reference Period would have exceeded 6 to incur at least $1.00 of additional Indebtedness other than Permitted Indebtedness in compliance with Section 4.121, or (iiic) the aggregate amount of all Restricted Payments made by the Company and its Restricted Subsidiaries, including such proposed Restricted Payment (if not made in cash, then the fair market value of any property used therefor) from and after June 30the Issue Date and on or prior to the date of such Restricted Payment, 2006, including, the Fair Market Value as determined reasonably and in good faith by the Board of Managers of the Company of non-cash amounts constituting Restricted Payments shall exceed the sum of: of (wi) 50% of the cumulative amount determined by subtracting (x) 2.0 times the aggregate Consolidated Net Income (or if cumulative Consolidated Net Income shall be a loss, minus 100% of such loss) Interest Expense of the Company earned for the period (taken as one accounting period) from June 30, 2006 through the Issue Date to the last day of the last full fiscal quarter immediately preceding prior to the date of the proposed Restricted Payment occurs (the “Reference Date”"Computation Period") from (treating such period as a single accounting period); y) Operating Cash Flow of the Company for the Computation Period, plus (xii) 100% of the aggregate net cash proceeds Net Proceeds received by the Company from any Person the sale (other than to a Subsidiary of the Company) from the issuance and sale subsequent to June 30, 2006 of its Qualified Capital Stock of after the Company (other than Specified Venture Capital Stock) Issue Date and on or debt securities of the Company that are, upon issuance, convertible into or exchangeable for Qualified Capital Stock of the Company, but only when and prior to the extent date of such debt securities are converted into or exchanged for Qualified Capital Stock of the Company; 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 the Company from a holder of the Company’s Capital Stock subsequent to June 30, 2006; plus (z) $400 millionRestricted Payment. Notwithstanding the foregoing, the provisions set forth in clause (b) or (c) of the immediately preceding paragraph shall not prohibit: prohibit (1i) the use of an aggregate of $10,000,000 to be used solely for Investments in Unrestricted Subsidiaries or Non- Recourse Restricted Subsidiaries, (ii) the payment of any dividend within 60 days after the date of its declaration of if such dividend if the dividend would could have been permitted made on the date of declaration; its declaration in compliance with the foregoing provisions, (2iii) the redemption, defeasance, repurchase or other acquisition or retirement of any shares of Indebtedness or Capital Stock of the Company, Company or its Restricted Subsidiaries either (i) solely in exchange for shares or out of the Net Proceeds of the substantially concurrent sale (other than to a Subsidiary of the Company) of Qualified Capital Stock of the Company or (iiiv) if no Default the redemption, repurchase or Event of Default shall have occurred and be continuing, through the application of net cash proceeds of a substantially concurrent Equity Offering (other than to a Subsidiary acquisition or retirement of the Company); (3) the acquisition or repayment of any Indebtedness of the Company that is subordinate or junior in right of payment to the Notes either (i) solely in exchange Preferred Stock for shares of Qualified Capital Stock of the Company, or (ii) if no Default or Event of Default shall have occurred and be continuing, through the application of net cash proceeds of (A) a substantially concurrent Equity Offering or (B) incurrence for cash of Refinancing Indebtedness, (in the case of (A) or (B), other than to a Subsidiary of the Company); (4) so long as no Default or Event of Default shall have occurred and be continuing, repurchases by the Company of, or dividends to a Huntsman Parent Company to permit repurchases by a Huntsman Parent Company of, Common Stock of the Company or a Huntsman Parent Company from employees of the Company or any of its Subsidiaries or their authorized representatives upon the death, disability or termination of employment of such employees, in an aggregate amount price not to exceed $25 million in any calendar year; (5) the redemption or repurchase of any Common Stock of the Company held by 25,000,000 if, after giving effect thereto on a Restricted Subsidiary of the Company which obtained such Common Stock directly from pro forma basis, the Company; (6) distributions to any Huntsman Parent Company in accordance with 's Annualized Operating Cash Flow Ratio for the Tax Sharing Agreement; (7) payments to any Huntsman Parent Company for legal, audit and other expenses directly relating to the administration of such Huntsman Parent Company not to exceed $10.0 million in any fiscal year; (8) the payment of consideration by a third party to equity holders of the Company; (9) additional Restricted Payments in an aggregate amount not to exceed $225 million since the Designated Date; (10) the payment of dividends or distributions to any Huntsman Parent Company which are contemporaneously applied to pay dividends on common stock of the Huntsman Public Parent at a rate not to exceed $0.40 per share per annum (such amount to be appropriately adjusted to reflect any stock split, reverse stock split, stock dividend, stock issuance or similar transactions made after the Designated Date so that the aggregate amount of dividends payable after such transaction is the same as the amount payable immediately prior to such transaction); (11) payments of dividends on Disqualified Capital Stock issued in accordance with Section 4.12; and (12) if the Consolidated Leverage Ratio of the Company, calculated after giving pro forma effect to any repurchase under this clause (12), is Reference Period would have been less than 2.5 7.5 to 1.0, then the Company may repurchase or dividend to a Huntsman Parent Company to repurchase, up to an aggregate of $250 million of Common Stock of a Huntsman Parent Company. In determining the aggregate amount of Restricted Payments made subsequent to the Designated Date in accordance with clause (iii) of the immediately preceding paragraph, cash amounts expended pursuant to clauses (1), (2), (3)(ii)(A) and (4) shall be included in such calculation and Restricted Payments made pursuant to the other clauses of this paragraph shall not be so included. Not later than the date of making any Restricted Payment pursuant to clause (iii) of the second preceding paragraph or clause (9) of the immediately preceding paragraph, the Company shall deliver to the Trustee an officers’ certificate stating that such Restricted Payment complies with this Indenture and setting forth in reasonable detail the basis upon which the required calculations were computed, which calculations may be based upon the Company’s quarterly financial statements last provided to the Trustee pursuant to Section 4.09.
Appears in 1 contract
Samples: Indenture (Sygnet Wireless Inc)
Limitation on Restricted Payments. (a) The Company shall will not, and shall will not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, make any Restricted Payment if Payment, unless at the time of such Restricted Payment or and immediately after giving effect theretoto the proposed Restricted Payment (with the value of any such Restricted Payment, if other than cash, to be determined by the Board of Directors in good faith and which determination shall be conclusive and evidenced by a board resolution), (i) a no Default or an Event of Default (and no event that, after notice or lapse of time, or both, would become an "event of default" under the terms of any Indebtedness of the Company or its Subsidiaries) shall have occurred and be continuingcontinuing or would occur as a consequence thereof, (ii) the Company is not able to could incur at least $1.00 of additional Indebtedness other than Permitted Indebtedness in compliance with pursuant to the provisions of Section 4.12, or 4.07(a) and (iii) the aggregate amount of all Restricted Payments including such proposed Restricted Payment made after June 30, 2006, including, the Fair Market Value as determined reasonably and in good faith by the Board of Managers of the Company of non-cash amounts constituting Restricted Payments Issue Date shall not exceed the sum of: of (wa) 50% of the cumulative Cumulative Consolidated Net Income of the Company (or if cumulative or, in the case such Cumulative Consolidated Net Income shall be a lossnegative, minus less 100% of such lossdeficit) since the end of the Company earned from June 30, 2006 fiscal quarter in which the Issue Date occurs through the last day of the last full 40 -33- most recent fiscal quarter immediately preceding the date the Restricted Payment occurs (the “Reference Date”) (treating such period as a single accounting period); quarter, plus (xb) 100% of the aggregate amount of all net cash proceeds received after the Issue Date by the Company (but excluding the net cash proceeds received by the Company from any Person (other than a Subsidiary of the CompanyConcurrent Offering) from the issuance and sale subsequent to June 30, 2006 of Qualified Capital Stock of the Company (other than Specified Venture Capital Stock) or debt securities of the Company that are, upon issuance, convertible into or exchangeable for Qualified Capital Stock of the Company, but only when and to the extent such debt securities are converted into or exchanged for Qualified Capital Stock of the Company; 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 the Company from a holder of the Company’s Capital Stock subsequent to June 30, 2006; plus (z) $400 million. Notwithstanding the foregoing, the provisions set forth in the immediately preceding paragraph shall 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) the acquisition of any shares of Capital Stock of the Company, either (i) solely in exchange for shares of Qualified Capital Stock of the Company or (ii) if no Default or Event of Default shall have occurred and be continuing, through the application of net cash proceeds of a substantially concurrent Equity Offering (other than to a Subsidiary of the Company); ) of Capital Stock of the Company (3other than Disqualified Stock) and the acquisition principal amount of Indebtedness of the Company or repayment any Subsidiary Guarantor that had been converted into or exchanged for Capital Stock of the Company and, in either case, to the extent that such proceeds are not used to redeem, repurchase, retire or otherwise acquire Capital Stock or any Indebtedness of the Company that is subordinate or junior in right of payment any Subsidiary pursuant to the Notes either (i) solely in exchange for shares of Qualified Capital Stock of the Company, or clause (ii) if no Default or Event of Default shall have occurred and be continuingSection 4.05(b), through the application of net cash proceeds of plus (Ac) a substantially concurrent Equity Offering or (B) incurrence for cash of Refinancing Indebtedness, (in the case of (A) the disposition or (B)repayment of any Investment for cash, other than which Investment constituted a Restricted Payment made after the Issue Date, an amount equal to a Subsidiary the lesser of the Company); return of capital with respect to such Investment and the cost of such Investment, in either case, reduced (4but not below zero) so long as no Default or Event by the excess, if any, of Default shall have occurred and be continuingthe cost of the disposition of such Investment over the gain, repurchases if any, realized by the Company of, or dividends to a Huntsman Parent Company to permit repurchases by a Huntsman Parent Company of, Common Stock of the Company or a Huntsman Parent Company from employees of the Company or any of its Subsidiaries or their authorized representatives upon the death, disability or termination of employment such Subsidiary in respect of such employees, in an aggregate amount not to exceed $25 million in any calendar year; (5) the redemption or repurchase of any Common Stock of the Company held by a Restricted Subsidiary of the Company which obtained such Common Stock directly from the Company; (6) distributions to any Huntsman Parent Company in accordance with the Tax Sharing Agreement; (7) payments to any Huntsman Parent Company for legal, audit and other expenses directly relating to the administration of such Huntsman Parent Company not to exceed $10.0 million in any fiscal year; (8) the payment of consideration by a third party to equity holders of the Company; (9) additional Restricted Payments in an aggregate amount not to exceed $225 million since the Designated Date; (10) the payment of dividends or distributions to any Huntsman Parent Company which are contemporaneously applied to pay dividends on common stock of the Huntsman Public Parent at a rate not to exceed $0.40 per share per annum (such amount to be appropriately adjusted to reflect any stock split, reverse stock split, stock dividend, stock issuance or similar transactions made after the Designated Date so that the aggregate amount of dividends payable after such transaction is the same as the amount payable immediately prior to such transaction); (11) payments of dividends on Disqualified Capital Stock issued in accordance with Section 4.12; and (12) if the Consolidated Leverage Ratio of the Company, calculated after giving pro forma effect to any repurchase under this clause (12), is less than 2.5 to 1.0, then the Company may repurchase or dividend to a Huntsman Parent Company to repurchase, up to an aggregate of $250 million of Common Stock of a Huntsman Parent Company. In determining the aggregate amount of Restricted Payments made subsequent to the Designated Date in accordance with clause (iii) of the immediately preceding paragraph, cash amounts expended pursuant to clauses (1), (2), (3)(ii)(A) and (4) shall be included in such calculation and Restricted Payments made pursuant to the other clauses of this paragraph shall not be so included. Not later than the date of making any Restricted Payment pursuant to clause (iii) of the second preceding paragraph or clause (9) of the immediately preceding paragraph, the Company shall deliver to the Trustee an officers’ certificate stating that such Restricted Payment complies with this Indenture and setting forth in reasonable detail the basis upon which the required calculations were computed, which calculations may be based upon the Company’s quarterly financial statements last provided to the Trustee pursuant to Section 4.09disposition.
Appears in 1 contract
Samples: Phonetel Technologies Inc
Limitation on Restricted Payments. (a) The Company shall not, and shall not cause or permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, make any Restricted Payment Payment, except (i) payments, prepayments, repurchases, redemptions and acquisitions with respect to Indebtedness not incurred in violation of Section 7.7, and (ii) Restricted Payments by the Company if (A) at the time of such Restricted Payment or immediately and after giving effect thereto, (i) a Default or an Event of Default shall have occurred and be continuing, (ii) to the Company is not able to incur at least $1.00 of additional Indebtedness other than Permitted Indebtedness in compliance with Section 4.12, or (iii) the aggregate amount of Restricted Payments including such proposed Restricted Payment made after June 30, 2006, including, the Fair Market Value as determined reasonably and in good faith by the Board of Managers of the Company of non-cash amounts constituting Restricted Payments 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 the Company earned from June 30, 2006 through the last day of the last full fiscal quarter immediately preceding 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 the Company from any Person (other than a Subsidiary of the Company) from the issuance and sale subsequent to June 30, 2006 of Qualified Capital Stock of the Company (other than Specified Venture Capital Stock) or debt securities of the Company that are, upon issuance, convertible into or exchangeable for Qualified Capital Stock of the Company, but only when and to the extent such debt securities are converted into or exchanged for Qualified Capital Stock of the Company; 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 the Company from a holder of the Company’s Capital Stock subsequent to June 30, 2006; plus (z) $400 million. Notwithstanding the foregoing, the provisions set forth in the immediately preceding paragraph shall 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) the acquisition of any shares of Capital Stock of the Company, either (i) solely in exchange for shares of Qualified Capital Stock of the Company or (ii) if no Default or Event of Default shall have occurred and be continuingcontinuing or would occur as a consequence thereof, (B) at the time of and immediately after giving effect to the proposed Restricted Payment, the Company could Incur at least $1.00 of additional Indebtedness pursuant to Section 7.7(b) and (C) at the time of and immediately after giving effect to the proposed Restricted Payment (the value of any such payment if other than cash, as determined by the Board of Directors, whose determination shall be conclusive and evidenced by a Board Resolution, provided that in the event such value -------- exceeds $2,000,000 such determination shall be supported by a fairness opinion of an Independent Financial Advisor) the aggregate amount of all Restricted Payments (excluding all payments, investments, redemptions, repurchases, retirements and other acquisitions described in clauses (ii), (iii) and (iv) of Section 7.5(b) below) declared or made after the date hereof does not exceed an amount equal to the sum of (A) 50% of the Consolidated Net Income accrued during the period (treated as one accounting period) from the first day of the first month of the fiscal quarter in which the Senior Notes were originally issued through the application last full fiscal quarter for which quarterly or annual financial statements are available prior to the date of net cash proceeds such Restricted Payment (or, in case such Consolidated Net Income shall be a deficit, minus 100% of a substantially concurrent Equity Offering such deficit), plus (B) an amount equal to 100% of the aggregate Net Cash Proceeds received by the Company from the issuance and sale (other than to a Subsidiary of the Company); (3) of Qualified Capital Stock to the acquisition extent that such proceeds are not used to redeem, repurchase, return or repayment of otherwise acquire Capital Stock or any Indebtedness of the Company that is subordinate or junior in right of payment to the Notes either (i) solely in exchange for shares of Qualified Capital Stock of the Company, or (ii) if no Default or Event of Default shall have occurred and be continuing, through the application of net cash proceeds of (A) a substantially concurrent Equity Offering or (B) incurrence for cash of Refinancing Indebtedness, (in the case of (A) or (B), other than to a Subsidiary of the Company); (4) so long as no Default or Event of Default shall have occurred and be continuing, repurchases by the Company of, or dividends to a Huntsman Parent Company to permit repurchases by a Huntsman Parent Company of, Common Stock of the Company or a Huntsman Parent Company from employees of the Company or any of its Subsidiaries or their authorized representatives upon the death, disability or termination of employment of such employees, in an aggregate amount not to exceed $25 million in any calendar year; (5) the redemption or repurchase of any Common Stock of the Company held by a Restricted Subsidiary of the Company which obtained such Common Stock directly from the Company; (6) distributions to any Huntsman Parent Company in accordance with the Tax Sharing Agreement; (7) payments to any Huntsman Parent Company for legal, audit and other expenses directly relating to the administration of such Huntsman Parent Company not to exceed $10.0 million in any fiscal year; (8) the payment of consideration by a third party to equity holders of the Company; (9) additional Restricted Payments in an aggregate amount not to exceed $225 million since the Designated Date; (10) the payment of dividends or distributions to any Huntsman Parent Company which are contemporaneously applied to pay dividends on common stock of the Huntsman Public Parent at a rate not to exceed $0.40 per share per annum (such amount to be appropriately adjusted to reflect any stock split, reverse stock split, stock dividend, stock issuance or similar transactions made after the Designated Date so that the aggregate amount of dividends payable after such transaction is the same as the amount payable immediately prior to such transaction); (11) payments of dividends on Disqualified Capital Stock issued in accordance with Section 4.12; and (12) if the Consolidated Leverage Ratio of the Company, calculated after giving pro forma effect to any repurchase under this clause (12), is less than 2.5 to 1.0, then the Company may repurchase or dividend to a Huntsman Parent Company to repurchase, up to an aggregate of $250 million of Common Stock of a Huntsman Parent Company. In determining the aggregate amount of Restricted Payments made subsequent to the Designated Date in accordance with clause (iii) of the immediately preceding paragraph, cash amounts expended pursuant to clauses (1), (2), (3)(ii)(A) and (4) shall be included in such calculation and Restricted Payments made pursuant to the other clauses of this paragraph shall not be so included. Not later than the date of making any Restricted Payment pursuant to clause (iii) of the second preceding paragraph or clause (9) of the immediately preceding paragraph, the Company shall deliver to the Trustee an officers’ certificate stating that such Restricted Payment complies with this Indenture and setting forth in reasonable detail the basis upon which the required calculations were computed, which calculations may be based upon the Company’s quarterly financial statements last provided to the Trustee pursuant to Section 4.097.5(b).
Appears in 1 contract
Limitation on Restricted Payments. The Company shall not, and shall not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, make any Restricted Payment if at the time of such Restricted Payment or immediately after giving effect thereto, (i) a Default or an Event of Default shall have occurred and be continuing, (ii) the Company is not able to incur at least $1.00 of additional Indebtedness other than Permitted Indebtedness in compliance with Section 4.12, or (iii) the aggregate amount of Restricted Payments including such proposed Restricted Payment made after June 30, 2006, including, the Fair Market Value as determined reasonably and in good faith by the Board of Managers of the Company of non-cash amounts constituting Restricted Payments 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 the Company earned from June 30, 2006 through subsequent to the last day of the last full fiscal quarter immediately preceding Issue Date and on or 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 the Company from any Person (other than a Subsidiary of the Company) from the issuance and sale subsequent to June 30, 2006 of Qualified Capital Stock of the Company (other than Specified Venture Capital Stock) Issue Date and on or debt securities of the Company that are, upon issuance, convertible into or exchangeable for Qualified Capital Stock of the Company, but only when and prior to the extent such debt securities are converted into or exchanged for Reference Date of Qualified Capital Stock of the Company; 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 the Company from a holder of the Company’s 's Capital Stock subsequent Stock. Subsidiaries not to June 30exceed $300,000 in any fiscal year; provided, 2006; plus (z) $400 million. Notwithstanding the foregoinghowever, that if such amount is not used in its entirety within such fiscal year, the provisions set forth unutilized amount may be utilized solely in the immediately preceding paragraph shall not prohibit: next succeeding fiscal year; and (17) payments for 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) the redemption, repurchase or other acquisition of any shares of Capital Stock of the CompanyCompany in satisfaction of indemnification or similar claims arising under any merger, either (i) solely in exchange for consolidation, asset purchase or investment or similar acquisition agreement, permitted under the Indenture, pursuant to which such shares of Qualified Capital Stock of the Company or (ii) if no Default or Event of Default shall have occurred and be continuing, through the application of net cash proceeds of a substantially concurrent Equity Offering (other than to a Subsidiary of the Company); (3) the acquisition or repayment of any Indebtedness of the Company that is subordinate or junior in right of payment to the Notes either (i) solely in exchange for shares of Qualified Capital Stock of the Company, or (ii) if no Default or Event of Default shall have occurred and be continuing, through the application of net cash proceeds of (A) a substantially concurrent Equity Offering or (B) incurrence for cash of Refinancing Indebtedness, (in the case of (A) or (B), other than to a Subsidiary of the Company); (4) so long as no Default or Event of Default shall have occurred and be continuing, repurchases by the Company of, or dividends to a Huntsman Parent Company to permit repurchases by a Huntsman Parent Company of, Common Stock of the Company or a Huntsman Parent Company from employees of the Company or any of its Subsidiaries or their authorized representatives upon the death, disability or termination of employment of such employees, in an aggregate amount not to exceed $25 million in any calendar year; (5) the redemption or repurchase of any Common Stock of the Company held by a Restricted Subsidiary of the Company which obtained such Common Stock directly from the Company; (6) distributions to any Huntsman Parent Company in accordance with the Tax Sharing Agreement; (7) payments to any Huntsman Parent Company for legal, audit and other expenses directly relating to the administration of such Huntsman Parent Company not to exceed $10.0 million in any fiscal year; (8) the payment of consideration by a third party to equity holders of the Company; (9) additional Restricted Payments in an aggregate amount not to exceed $225 million since the Designated Date; (10) the payment of dividends or distributions to any Huntsman Parent Company which are contemporaneously applied to pay dividends on common stock of the Huntsman Public Parent at a rate not to exceed $0.40 per share per annum (such amount to be appropriately adjusted to reflect any stock split, reverse stock split, stock dividend, stock issuance or similar transactions made after the Designated Date so that the aggregate amount of dividends payable after such transaction is the same as the amount payable immediately prior to such transaction); (11) payments of dividends on Disqualified Capital Stock issued in accordance with Section 4.12; and (12) if the Consolidated Leverage Ratio of the Company, calculated after giving pro forma effect to any repurchase under this clause (12), is less than 2.5 to 1.0, then the Company may repurchase or dividend to a Huntsman Parent Company to repurchase, up to an aggregate of $250 million of Common Stock of a Huntsman Parent Companywere issued. In determining the aggregate amount of Restricted Payments made subsequent to the Designated Issue Date in accordance with clause (iii) of the immediately preceding paragraph, cash amounts expended pursuant to clauses (1), (22)(B), (3)(ii)(A6) and (47) shall be included in such calculation and Restricted Payments made pursuant to the other clauses of this paragraph shall not be so includedcalculation. Not later than the date of making any Restricted Payment pursuant to clause (iii) as defined in the first paragraph of the second preceding paragraph or clause (9) of the immediately preceding paragraphthis covenant), the Company shall deliver to the Trustee an officers’ ' certificate stating that such Restricted Payment complies with this the Indenture and setting forth in reasonable detail the basis upon which the required calculations were computed, which calculations may be based upon the Company’s 's latest available internal quarterly financial statements last provided to the Trustee pursuant to Section 4.09statements.
Appears in 1 contract
Samples: Unifrax Investment Corp
Limitation on Restricted Payments. (a) The Company shall will not, and shall will not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, make any Restricted Payment if (including by operation of or as a result of an LLC Division), unless at the time of such Restricted Payment or and immediately after giving effect theretoto the proposed Restricted Payment (with the value of any such Restricted Payment, if other than cash, to be determined by the Board of Directors in good faith, whose determination shall be conclusive and evidenced by a board resolution), (i) a Default or an Event of Default shall have occurred and be continuing, (ii) the Company is not able to incur at least $1.00 of additional Indebtedness other than Permitted Indebtedness in compliance with Section 4.12, or (iii) the aggregate amount of Restricted Payments including such proposed Restricted Payment made after June 30, 2006, including, the Fair Market Value as determined reasonably and in good faith by the Board of Managers of the Company of non-cash amounts constituting Restricted Payments 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 the Company earned from June 30, 2006 through the last day of the last full fiscal quarter immediately preceding 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 the Company from any Person (other than a Subsidiary of the Company) from the issuance and sale subsequent to June 30, 2006 of Qualified Capital Stock of the Company (other than Specified Venture Capital Stock) or debt securities of the Company that are, upon issuance, convertible into or exchangeable for Qualified Capital Stock of the Company, but only when and to the extent such debt securities are converted into or exchanged for Qualified Capital Stock of the Company; 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 the Company from a holder of the Company’s Capital Stock subsequent to June 30, 2006; plus (z) $400 million. Notwithstanding the foregoing, the provisions set forth in the immediately preceding paragraph shall 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) the acquisition of any shares of Capital Stock of the Company, either (i) solely in exchange for shares of Qualified Capital Stock of the Company or (ii) if no Default or Event of Default shall have occurred and be continuingcontinuing or would occur as a consequence thereof, through (ii) the application Company could incur at least $1.00 of additional Indebtedness pursuant to the provisions of Section 4.07(a) and (iii) the aggregate amount of all Restricted Payments made after April 29, 2010 shall not exceed the sum of (without duplication) (a) an amount equal to the Company’s Cumulative Operating Cash Flow less 1.4 times the Company’s Cumulative Consolidated Interest Expense, plus (b) the aggregate amount of all net cash proceeds of a substantially concurrent Equity Offering received after April 29, 2010 by the Company from (x) the issuance and sale (other than to a Subsidiary of the Company); ) of Capital Stock of the Company (3other than Disqualified Stock or Designated Preferred Stock) to the acquisition extent that such proceeds are not used to redeem, repurchase, retire or repayment of otherwise acquire Capital Stock or any Indebtedness of the Company or any Subsidiary of the Company pursuant to clause (ii) of Section 4.05(b) or (y) Indebtedness of the Company issued since April 29, 2010 (other than to Subsidiaries) that is subordinate or junior in right of payment to the Notes either (i) solely in exchange for shares of Qualified have been converted into Capital Stock of the CompanyCompany (other than Disqualified Stock or Designated Preferred Stock), plus (c) to the extent that any Unrestricted Subsidiary is redesignated as a Restricted Subsidiary after April 29, 2010, 100% of the fair market value of such Subsidiary as of the date of such redesignation, plus (d) the aggregate amount returned in cash or Cash Equivalents with respect of Investments (iiother than Permitted Investments) if no Default made after April 29, 2010 whether through interest payments, principal payments, dividends or Event of Default shall have occurred and be continuingother distributions, through the application of net cash proceeds of plus (Ae) a substantially concurrent Equity Offering or (B) incurrence for cash of Refinancing Indebtedness, (in the case of the disposition or repayment of any Investment for cash, which Investment constituted a Restricted Payment made after April 29, 2010, an amount equal to the return of capital with respect to such Investment, reduced (Abut not below zero) or (B)by the excess, other than to a Subsidiary if any, of the Company); (4) so long as no Default or Event cost of Default shall have occurred and be continuingthe disposition of such Investment over the gain, repurchases if any, realized by the Company of, or dividends to a Huntsman Parent Company to permit repurchases by a Huntsman Parent Company of, Common Stock of the Company or a Huntsman Parent Company from employees of the Company or any of its Subsidiaries or their authorized representatives upon the death, disability or termination of employment such Restricted Subsidiary in respect of such employees, in an aggregate amount not to exceed $25 million in any calendar year; (5) the redemption or repurchase of any Common Stock of the Company held by a Restricted Subsidiary of the Company which obtained such Common Stock directly from the Company; (6) distributions to any Huntsman Parent Company in accordance with the Tax Sharing Agreement; (7) payments to any Huntsman Parent Company for legal, audit and other expenses directly relating to the administration of such Huntsman Parent Company not to exceed $10.0 million in any fiscal year; (8) the payment of consideration by a third party to equity holders of the Company; (9) additional Restricted Payments in an aggregate amount not to exceed $225 million since the Designated Date; (10) the payment of dividends or distributions to any Huntsman Parent Company which are contemporaneously applied to pay dividends on common stock of the Huntsman Public Parent at a rate not to exceed $0.40 per share per annum (such amount to be appropriately adjusted to reflect any stock split, reverse stock split, stock dividend, stock issuance or similar transactions made after the Designated Date so that the aggregate amount of dividends payable after such transaction is the same as the amount payable immediately prior to such transaction); (11) payments of dividends on Disqualified Capital Stock issued in accordance with Section 4.12; and (12) if the Consolidated Leverage Ratio of the Company, calculated after giving pro forma effect to any repurchase under this clause (12), is less than 2.5 to 1.0, then the Company may repurchase or dividend to a Huntsman Parent Company to repurchase, up to an aggregate of $250 million of Common Stock of a Huntsman Parent Company. In determining the aggregate amount of Restricted Payments made subsequent to the Designated Date in accordance with clause (iii) of the immediately preceding paragraph, cash amounts expended pursuant to clauses (1), (2), (3)(ii)(A) and (4) shall be included in such calculation and Restricted Payments made pursuant to the other clauses of this paragraph shall not be so included. Not later than the date of making any Restricted Payment pursuant to clause (iii) of the second preceding paragraph or clause (9) of the immediately preceding paragraph, the Company shall deliver to the Trustee an officers’ certificate stating that such Restricted Payment complies with this Indenture and setting forth in reasonable detail the basis upon which the required calculations were computed, which calculations may be based upon the Company’s quarterly financial statements last provided to the Trustee pursuant to Section 4.09disposition.
Appears in 1 contract
Samples: Indenture (Gray Television Inc)
Limitation on Restricted Payments. The Company and the Guarantors shall not, and shall not cause or permit any of its Restricted their Subsidiaries to, directly or indirectly, make any Restricted Payment if at the time of if, after giving effect to such Restricted Payment or immediately after giving effect theretoon a pro forma basis, (i1) a Default or an Event of Default shall have occurred and be continuing, (ii2) the Company is not able permitted to incur at least $1.00 of additional Indebtedness other than Permitted Indebtedness pursuant to the Debt Incurrence Ratio in compliance with Section 4.12, 4.11 or (iii3) the aggregate amount of all Restricted Payments made by the Company and its Subsidiaries, including after giving effect to such proposed Restricted Payment made Payment, from and after June 30the Issue Date, 2006, including, the Fair Market Value as determined reasonably and in good faith by the Board of Managers of the Company of non-cash amounts constituting Restricted Payments shall would exceed the sum of: of (wa) 50% of the cumulative aggregate Consolidated Net Income of the Company for the period (or if cumulative taken as one accounting period), commencing on the day next following the Issue Date, to and including the last day of the fiscal quarter ended immediately prior to the date of each such calculation (or, in the event Consolidated Net Income shall be for such period is a lossdeficit, then minus 100% of such loss) of the Company earned from June 30deficit), 2006 through the last day of the last full fiscal quarter immediately preceding the date the Restricted Payment occurs (the “Reference Date”) (treating such period as a single accounting period); plus (xb) 100% of the aggregate net cash proceeds Net Cash Proceeds received by the Company from any Person the sale (other than (i) to a Subsidiary of the Company, (ii) from to the issuance extent applied in connection with a Qualified Exchange and sale subsequent (iii) to June 30the extent added to any amount available for repurchases, 2006 loans and advances under clause (v) of the next following paragraph) after the Issue Date of Qualified Capital Stock of the Company (other than Specified Venture Capital Stock) or debt securities of the Company or any of its Subsidiaries that are, upon issuance, convertible into or exchangeable for Qualified Capital Stock of the Company, but only when and to the extent such debt securities are have been converted into or exchanged for Qualified Capital Stock of the Company; , plus (yc) without duplication the amount of any amounts included in clause (iii)(x) above, 100% of the aggregate net cash proceeds of any equity contribution received by the Company from a holder of the Company’s Capital Stock subsequent to June 30, 2006; plus (z) $400 million. Notwithstanding the foregoing, the provisions set forth in the immediately preceding paragraph shall not prohibit: (1) the payment of any dividend within 60 days Restricted Investments made after the date of declaration of such dividend if the dividend would have been permitted on the date of declaration; (2) the acquisition of any shares of Capital Stock of the Company, either (i) solely in exchange for shares of Qualified Capital Stock of the Company or (ii) if no Default or Event of Default shall have occurred and be continuing, through the application of net cash proceeds of a substantially concurrent Equity Offering Issue Date (other than to a Subsidiary of the Company); (3) the acquisition or repayment of any Indebtedness of the Company that is subordinate or junior in right of payment to the Notes either (i) solely in exchange for shares of Qualified Capital Stock of the Company, or (ii) if no Default or Event of Default shall have occurred and be continuing, through the application of net cash proceeds of (A) a substantially concurrent Equity Offering or (B) incurrence for cash of Refinancing Indebtedness, (in the case of (A) or (B), other than to a Subsidiary of the Company); (4) so long as no Default or Event of Default shall have occurred and be continuing, repurchases by the Company of, or dividends to a Huntsman Parent Company to permit repurchases by a Huntsman Parent Company of, Common Stock of the Company or a Huntsman Parent Company from employees of the Company or any of its Subsidiaries or their authorized representatives upon the death, disability or termination of employment of such employees, in an aggregate amount not to exceed $25 million in any calendar year; (5) the redemption or repurchase of any Common Stock of the Company held by a Restricted Subsidiary of the Company which obtained such Common Stock directly from the Company; (6) distributions to any Huntsman Parent Company in accordance with the Tax Sharing Agreement; (7) payments to any Huntsman Parent Company for legal, audit and other expenses directly relating to the administration of such Huntsman Parent Company not to exceed $10.0 million in any fiscal year; (8) the payment of consideration by a third party to equity holders of the Company; (9) additional Restricted Payments in an aggregate amount not to exceed $225 million since the Designated Date; (10) the payment of dividends or distributions to any Huntsman Parent Company which are contemporaneously applied to pay dividends on common stock of the Huntsman Public Parent at a rate not to exceed $0.40 per share per annum (such amount to be appropriately adjusted to reflect any stock split, reverse stock split, stock dividend, stock issuance or similar transactions made after the Designated Date so that the aggregate amount of dividends payable after such transaction is the same as the amount payable immediately prior to such transaction); (11) payments of dividends on Disqualified Capital Stock issued in accordance with Section 4.12; and (12) if the Consolidated Leverage Ratio of the Company, calculated after giving pro forma effect to any repurchase under this clause (12), is less than 2.5 to 1.0, then the Company may repurchase or dividend to a Huntsman Parent Company to repurchase, up to an aggregate of $250 million of Common Stock of a Huntsman Parent Company. In determining the aggregate amount of Restricted Payments made subsequent to the Designated Date in accordance with clause (iii) of the immediately preceding paragraph, cash amounts expended pursuant to clauses (1), (2), (3)(ii)(A) and (4) shall be included in such calculation and Restricted Payments made pursuant to the other clauses of this paragraph shall not be so included. Not later than the date of making any Restricted Payment pursuant to clause (iiit) of the second preceding paragraph or clause (9next following paragraph) of the immediately preceding paragraph, that are returned to the Company shall deliver or the Subsidiary Guarantor that made such prior Investment, without restriction, in cash on or prior to the Trustee an officers’ certificate stating that date of any such Restricted Payment complies with this Indenture and setting forth in reasonable detail the basis upon which the required calculations were computed, which calculations may be based upon the Company’s quarterly financial statements last provided to the Trustee pursuant to Section 4.09calculation.
Appears in 1 contract
Samples: Doskocil Manufacturing Co Inc
Limitation on Restricted Payments. The Company shall not, and shall not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, make any Restricted Payment (except as permitted below) if at the time of such Restricted Payment or immediately after giving effect thereto, (i) Payment: a Default or an Event of Default shall have occurred and be continuing, (ii) continuing or shall occur as a consequence thereof; the Company is not able would be unable to incur at least an additional $1.00 of additional Indebtedness other than Permitted Indebtedness pursuant to the Consolidated Fixed Charge Coverage Ratio test set forth in compliance with Section 4.124.04(a); or the amount of such Restricted Payment, or (iii) when added to the aggregate amount of all Restricted Payments including such proposed Restricted Payment made after June 30the Issue Date, 2006, including, the Fair Market Value as determined reasonably and in good faith by the Board of Managers of the Company of non-cash amounts constituting Restricted Payments shall exceed exceeds the sum of: of (wA) 50% of the cumulative Company’s Consolidated Net Income (or taken as one accounting period) from but not including May 31, 2004, to the end of the Company’s most recently ended fiscal quarter for which financial statements are available at the time of such Restricted Payment (or, if cumulative such aggregate Consolidated Net Income shall be a lossdeficit, minus 100% of such lossaggregate deficit) of the Company earned from June 30, 2006 through the last day of the last full fiscal quarter immediately preceding the date the Restricted Payment occurs (the “Reference Date”) (treating such period as a single accounting period); plus (xB) 100% of the aggregate net cash Cash proceeds received by from the Company from any Person issuance and sale (other than to a Subsidiary of the Company) from after the issuance and sale subsequent to June 30, 2006 of Qualified Capital Stock of the Company (other than Specified Venture Capital Stock) or debt securities of the Company that are, upon issuance, convertible into or exchangeable for Qualified Capital Stock of the Company, but only when and to the extent such debt securities are converted into or exchanged for Qualified Capital Stock of the Company; 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 the Company from a holder Issue Date of the Company’s Capital Stock subsequent to June 30that is not Disqualified Stock, 2006; plus (zC) $400 million. Notwithstanding to the foregoingextent that any Restricted Investment that was made after the Issue Date is sold for cash or otherwise liquidated or repaid for cash, the lesser of (x) the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any) and (y) the initial amount of such Restricted Investment plus (D) the amount of Restricted Investment outstanding in an Unrestricted Subsidiary at the time such Unrestricted Subsidiary is designated a Subsidiary of the Company in accordance with the definition of “Unrestricted Subsidiary”. The foregoing provisions set forth in the immediately preceding paragraph shall will not prohibit: prohibit (1) the payment of any dividend within 60 days after the date of declaration thereof, if at said date of declaration such dividend if the dividend payment would have been permitted on complied with the date provisions of declarationthis Indenture; (2) the redemption, repurchase, retirement or other acquisition of any shares of Capital Stock of the Company, either (i) solely in exchange for shares of Qualified Capital Stock of the Company in exchange for, or (ii) if no Default or Event out of Default shall have occurred and be continuingthe proceeds of, through the application of net cash proceeds of a substantially concurrent Equity Offering sale (other than to a Subsidiary of the Company); (3) the acquisition or repayment of any Indebtedness of the Company that is subordinate or junior in right of payment to the Notes either (i) solely in exchange for shares of Qualified other Capital Stock of the Company, or (ii) if so long as no Default or Event of Default default shall have occurred and be continuing, through (other than any Disqualified Capital Stock); (3) the application defeasance, redemption, repurchase or other retirement of net cash Subordinated Indebtedness in exchange for, or out of the proceeds of, the substantially concurrent issue and sale of (AI) a substantially concurrent Equity Offering the Securities or (BII) incurrence for cash Capital Stock of Refinancing Indebtednessthe Company (other than (x) Disqualified Capital Stock, (in the case of (Ay) or (B), other than Capital Stock sold to a Subsidiary of the Company); Company and (4z) so long as no Default or Event Capital Stock purchased with the proceeds of Default shall have occurred and be continuing, repurchases by the Company of, or dividends to a Huntsman Parent Company to permit repurchases by a Huntsman Parent Company of, Common Stock of the Company or a Huntsman Parent Company loans from employees of the Company or any of its Subsidiaries or their authorized representatives Subsidiaries); (4) the making of Related Business Investments not otherwise treated as Investments with respect to a new Xxxxx plant so long as the amount of such investments outstanding less the amount of cash received upon the death, disability disposition of any such investments or termination the return of employment capital thereon or committed does not exceed at any time $30.0 million; provided that no portion of such employeesamount shall be utilized for any Investment unless the Company would be permitted at such time to incur an additional $1 of Additional Indebtedness (other than Permitted Indebtedness) pursuant to the Consolidated Fixed Charge Coverage Ratio test set forth in Section 4.04 and either (x) the new Xxxxx plant is operational and already performing to approximate design specifications, or (y) to the extent an Investment has been made in the new Xxxxx plant and the new Xxxxx plant has thereafter been terminated or abandoned, in an aggregate either case as evidenced by a Board Resolution, in which case, Investments may be made up to the amount not of $30 million available under this subsection (4), less the Investment in the new Xxxxx plant made pursuant to exceed $25 million in any calendar yearsubsection (6); (5) the redemption making of a Related Business Investment in joint ventures or repurchase Unrestricted Subsidiaries out of any Common the proceeds of the substantially concurrent issue and sale of Capital Stock of the Company held by (other than (x) Disqualified Stock, (y) Capital Stock sold to a Restricted Subsidiary of the Company which obtained such Common and (z) Capital Stock directly purchased by members of the Company’s or its Subsidiaries’ management with the proceeds of loans from the CompanyCompany or any of its Subsidiaries); and (6) distributions Investments with respect to a new Xxxxx plant not otherwise treated as Related Business Investments in an amount at any Huntsman Parent Company in accordance with the Tax Sharing Agreement; (7) payments to any Huntsman Parent Company for legal, audit and other expenses directly relating to the administration of such Huntsman Parent Company time outstanding not to exceed $10.0 million 25.0 million. The amounts referred to in any fiscal year; (8) the payment of consideration by a third party to equity holders of the Company; (9) additional Restricted Payments in an aggregate amount not to exceed $225 million since the Designated Date; (10) the payment of dividends or distributions to any Huntsman Parent Company which are contemporaneously applied to pay dividends on common stock of the Huntsman Public Parent at a rate not to exceed $0.40 per share per annum (such amount to be appropriately adjusted to reflect any stock split, reverse stock split, stock dividend, stock issuance or similar transactions made after the Designated Date so that the aggregate amount of dividends payable after such transaction is the same as the amount payable immediately prior to such transaction); (11) payments of dividends on Disqualified Capital Stock issued in accordance with Section 4.12; and (12) if the Consolidated Leverage Ratio of the Company, calculated after giving pro forma effect to any repurchase under this clause (12), is less than 2.5 to 1.0, then the Company may repurchase or dividend to a Huntsman Parent Company to repurchase, up to an aggregate of $250 million of Common Stock of a Huntsman Parent Company. In determining the aggregate amount of Restricted Payments made subsequent to the Designated Date in accordance with clause (iii) of the immediately preceding paragraph, cash amounts expended pursuant to clauses (1), (2), (3)(ii)(A) and (45) shall be included in such calculation and Restricted Payments made pursuant to the other clauses of this paragraph shall not be so includedincluded as Restricted Payments in any computation made pursuant to clause (iii) above. Not later than the date of making any Restricted Payment pursuant to clause (iii) of the second preceding paragraph or clause (9) of the immediately preceding paragraphPayment, the Company shall deliver to the Trustee an officersOfficers’ certificate Certificate stating that such Restricted Payment complies with this Indenture is permitted and setting forth in reasonable detail the basis upon which the calculations required calculations by this Section 4.03 were computed, which calculations may shall be based upon the Company’s quarterly latest available financial statements last provided to the Trustee pursuant to Section 4.09statements.
Appears in 1 contract
Samples: Indenture (Independent Gasoline & Oil Co of Rochester)
Limitation on Restricted Payments. The Company shall will not, and shall will not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, make any Restricted Payment if at the time of such Restricted Payment or immediately if, after giving effect theretothereto on a pro forma basis, (il) a Default or an Event of Default shall have occurred and be continuing, (ii2) immediately after giving effect to such Restricted Payment on a pro forma basis, the Consolidated Coverage Ratio of the Company is not able for the Reference Period immediately preceding the Restricted Payment would be less than 2.0 to incur at least $1.00 of additional Indebtedness other than Permitted Indebtedness in compliance with Section 4.121, or (iii3) the aggregate amount of all Restricted Payments made by the Company and its Subsidiaries, including after giving effect to such proposed Restricted Payment made Payment, would exceed the sum of (a) 50% of the aggregate Consolidated Net Income of the Company and its Consolidated Subsidiaries for the period (taken as one accounting period) commencing on the first day of the first full fiscal quarter commencing after June 30the Casino Opening Date, 2006to and including the last day of the fiscal quarter ended immediately prior to the date of each such calculation (or, includingin the event Consolidated Net Income for such period is a deficit, then minus 100% of such deficit), minus 100% of the Fair Market Value amount of any writedowns, writeoffs, or negative extraordinary charges (other than any related to the Casino prior to the Casino Completion Date) not otherwise reflected in Consolidated Net Income during such period, plus (b) the aggregate Net Cash Proceeds (including the fair market value of non-cash proceeds, as determined reasonably and in good faith by the Board of Managers Manager of the Company of non-cash amounts constituting Restricted Payments shall exceed the sum of: (wCompany) 50% of the cumulative Consolidated Net Income (or if cumulative Consolidated Net Income shall be a loss, minus 100% of such loss) of the Company earned from June 30, 2006 through the last day of the last full fiscal quarter immediately preceding 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 the Company from any Person (other than as a Subsidiary of the Company) capital contribution or from the issuance and sale subsequent to June 30, 2006 of its Qualified Capital Stock of the Company (other than Specified Venture Capital Stock) or debt securities of the Company that are, upon issuance, convertible into or exchangeable for Qualified Capital Stock of the Company, but only when and to the extent such debt securities are converted into or exchanged for Qualified Capital Stock of the Company; 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 the Company from a holder of the Company’s Capital Stock subsequent to June 30, 2006; plus (z) $400 million. Notwithstanding the foregoing, the provisions set forth in the immediately preceding paragraph shall 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) the acquisition of any shares of Capital Stock of the Company, either (i) solely in exchange for shares of Qualified Capital Stock of the Company or (ii) if no Default or Event of Default shall have occurred and be continuing, through the application of net cash proceeds of a substantially concurrent Equity Offering (other than to a Subsidiary of the Company); (3Company and other than in connection with a Qualified Exchange) after the acquisition or repayment of any Indebtedness of the Company that is subordinate or junior in right of payment to the Notes either (i) solely in exchange for shares of Qualified Capital Stock of the CompanyCasino Completion Date, or (ii4) if no Default or Event during each of Default shall have occurred the two full consecutive Contingent Payment Periods preceding the proposed Restricted Payment, the Company has not paid (a) the Maximum Contingent Payments with respect to each such Contingent Payment Period and be continuing, through (b) the application of net cash proceeds of (A) a substantially concurrent Equity Offering or (B) incurrence for cash of Refinancing Indebtedness, Maximum Contingent Payments (in this instance only, as defined in the case of (A8% Notes Indenture) or (B), other than to a Subsidiary of the Company); (4) so long as no Default or Event of Default shall have occurred and be continuing, repurchases by the Company of, or dividends to a Huntsman Parent Company to permit repurchases by a Huntsman Parent Company of, Common Stock of the Company or a Huntsman Parent Company from employees of the Company or any of its Subsidiaries or their authorized representatives upon the death, disability or termination of employment of such employees, in an aggregate amount not to exceed $25 million in any calendar year; (5) the redemption or repurchase of any Common Stock of the Company held by a Restricted Subsidiary of the Company which obtained such Common Stock directly from the Company; (6) distributions to any Huntsman Parent Company in accordance with the Tax Sharing Agreement; (7) payments to any Huntsman Parent Company for legal, audit and other expenses directly relating respect to the administration of 8% Notes with respect to each such Huntsman Parent Company not to exceed $10.0 million in any fiscal year; (8) the payment of consideration by a third party to equity holders of the Company; (9) additional Restricted Payments in an aggregate amount not to exceed $225 million since the Designated Date; (10) the payment of dividends or distributions to any Huntsman Parent Company which are contemporaneously applied to pay dividends on common stock of the Huntsman Public Parent at a rate not to exceed $0.40 per share per annum (such amount to be appropriately adjusted to reflect any stock split, reverse stock split, stock dividend, stock issuance or similar transactions made after the Designated Date so that the aggregate amount of dividends payable after such transaction is the same as the amount payable immediately prior to such transaction); (11) payments of dividends on Disqualified Capital Stock issued in accordance with Section 4.12; and (12) if the Consolidated Leverage Ratio of the Company, calculated after giving pro forma effect to any repurchase under this clause (12), is less than 2.5 to 1.0, then the Company may repurchase or dividend to a Huntsman Parent Company to repurchase, up to an aggregate of $250 million of Common Stock of a Huntsman Parent CompanyContingent Payment Period. In determining the aggregate amount of Restricted Payments made subsequent to the Designated Date in accordance with clause (iii) of the immediately preceding paragraph, cash amounts expended pursuant to The foregoing clauses (1), (2), (3)(ii)(A3) and (4) shall be included in such calculation and Restricted Payments made pursuant to the other clauses of this paragraph shall not be so included. Not later than the date of making any Restricted Payment pursuant to clause (iii) of the second preceding paragraph or clause (9) of the immediately preceding paragraph, however, will not prohibit (A) the payment of any dividend on or redemption of Qualified Capital Stock within 60 days after the date of its declaration or authorization, respectively, if such dividend or redemption could have been made on the date of such declaration or authorization in compliance with the foregoing provisions, (B) the redemption or distribution or other Restricted Payment with respect to Capital Stock or Indebtedness pursuant to, and in accordance with, any Required Regulatory Redemption effected in accordance with this Indenture (including dividends and distributions to the Parent Guarantor to permit the Parent Guarantor to effect a Required Regulatory Redemption), (C) a Qualified Exchange, (D) dividends and distributions by the Company shall deliver to the Trustee Parent Guarantor in an amount equal to all Permitted Tax Distributions, to the extent such are actually so applied by the Parent Guarantor, (E) dividends and distributions (other than Permitted Tax Distribution) by the Company to the Parent Guarantor to the extent necessary to permit the Parent Guarantor to pay the Parent Guarantor's reasonable professional fees and expenses in connection with complying with its reporting obligations (including its obligations set forth in Section 5.8) and obligations to prepare and distribute business records, financial statements or other documents to any lender or other persons having business dealings with the Parent Guarantor or as may be required by law, the Parent Guarantor's costs and related expenses in connection with the computation of federal, state, local or foreign taxes and other governmental charges, indemnification agreements, insurance premiums, surety bonds and insurance brokers' fees, and the Parent Guarantor's expenses for directors', officers’ certificate stating that ' and employees' compensation and benefits, and any other administrative expenses incurred in the ordinary course of business practices, (all, in the case of this clause (E) to be limited in an amount proportionate to the percentage of the book value of the Parent Guarantor's assets which is fairly attributable, at the time of such Restricted Payment, to the Company, its Subsidiaries and the Development Companies), and (F) Restricted Investments by the Company in any of the Development Companies, and Restricted Payments by the Company to the Parent Guarantor to the extent the Parent Guarantor uses such Restricted Payment complies with this Indenture to make an Investment in any of the Development Companies. The full amount of any Restricted Payment made pursuant to either of clauses (A), (B) and setting forth (F) (but not those made pursuant to clauses (C), (D) or (E)) will be deducted in reasonable detail the basis upon calculation of the aggregate amount of Restricted Payments thereafter available to be made pursuant to clause (3) of the immediately preceding paragraph. In addition to, and notwithstanding anything to the contrary in, the foregoing, the Company will not, and will not permit any of its Subsidiaries to, directly or indirectly, make any Restricted Payment (other than pursuant to clauses (B), (C), (D), (E) and (F) of the immediately preceding paragraph) prior to the last day of the Company's first full fiscal quarter during or prior to which the required calculations were computed, which calculations may be based upon the Company’s quarterly financial statements last provided to the Trustee pursuant to Section 4.09Casino Completion Date shall have occurred.
Appears in 1 contract
Samples: Jazz Casino Co LLC
Limitation on Restricted Payments. (a) The Company shall will not, and shall will not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, make any Restricted Payment if (including by operation of or as a result of an LLC Division), unless at the time of such Restricted Payment or and immediately after giving effect theretoto the proposed Restricted Payment (with the value of any such Restricted Payment, if other than cash, to be determined by the Board of Directors in good faith, whose determination shall be conclusive and evidenced by a board resolution), (i) a Default or an Event of Default shall have occurred and be continuing, (ii) the Company is not able to incur at least $1.00 of additional Indebtedness other than Permitted Indebtedness in compliance with Section 4.12, or (iii) the aggregate amount of Restricted Payments including such proposed Restricted Payment made after June 30, 2006, including, the Fair Market Value as determined reasonably and in good faith by the Board of Managers of the Company of non-cash amounts constituting Restricted Payments 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 the Company earned from June 30, 2006 through the last day of the last full fiscal quarter immediately preceding 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 the Company from any Person (other than a Subsidiary of the Company) from the issuance and sale subsequent to June 30, 2006 of Qualified Capital Stock of the Company (other than Specified Venture Capital Stock) or debt securities of the Company that are, upon issuance, convertible into or exchangeable for Qualified Capital Stock of the Company, but only when and to the extent such debt securities are converted into or exchanged for Qualified Capital Stock of the Company; 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 the Company from a holder of the Company’s Capital Stock subsequent to June 30, 2006; plus (z) $400 million. Notwithstanding the foregoing, the provisions set forth in the immediately preceding paragraph shall 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) the acquisition of any shares of Capital Stock of the Company, either (i) solely in exchange for shares of Qualified Capital Stock of the Company or (ii) if no Default or Event of Default shall have occurred and be continuingcontinuing or would occur as a consequence thereof, through (ii) the application Company could incur at least $1.00 of additional Indebtedness pursuant to the provisions of Section 4.07(a) and (iii) the aggregate amount of all Restricted Payments made after June 30, 2020 shall not exceed the sum of (without duplication) (a) $2,000.0 million, (b) an amount equal to the Company’s Cumulative Operating Cash Flow less 1.4 times the Company’s Cumulative Consolidated Interest Expense, (c) the aggregate amount of all net cash proceeds (including the fair market value, as determined in good faith by the Company, of a substantially concurrent Equity Offering property other than cash) received after June 30, 2020 by the Company from (x) the issuance and sale (other than to a Subsidiary of the Company); ) of Capital Stock of the Company (3other than Disqualified Stock or Designated Preferred Stock) to the acquisition extent that such proceeds are not used to redeem, repurchase, retire or repayment of otherwise acquire Capital Stock or any Indebtedness of the Company or any Subsidiary of the Company pursuant to clause (ii) of Section 4.05(b) or (y) Indebtedness of the Company issued since June 30, 2020 (other than to Subsidiaries) that is subordinate or junior in right of payment to the Notes either (i) solely in exchange for shares of Qualified have been converted into Capital Stock of the Company, Company (other than Disqualified Stock or (ii) if no Default or Event of Default shall have occurred and be continuing, through the application of net cash proceeds of (A) a substantially concurrent Equity Offering or (B) incurrence for cash of Refinancing IndebtednessDesignated Preferred Stock), (d) to the extent that any Unrestricted Subsidiary is redesignated as a Restricted Subsidiary after June 30, 2020, 100% of the fair market value of such Subsidiary as of the date of such redesignation, plus (e) the aggregate amount returned in cash or Cash Equivalents with respect of Investments (other than Permitted Investments) made after June 30, 2020 whether through interest payments, principal payments, dividends, return of capital or other distributions and (f) in the case of the disposition or repayment of any Investment for cash (A) in whole or (Bin part), other than which Investment constituted a Restricted Payment made after June 30, 2020, an amount equal to a Subsidiary the return of capital (to the extent of cash received) with respect to such Investment, reduced (but not below zero) by the excess, if any, of the Company); (4) so long as no Default or Event cost of Default shall have occurred and be continuingthe disposition of such Investment over the gain, repurchases if any, realized by the Company of, or dividends to a Huntsman Parent Company to permit repurchases by a Huntsman Parent Company of, Common Stock of the Company or a Huntsman Parent Company from employees of the Company or any of its Subsidiaries or their authorized representatives upon the death, disability or termination of employment such Restricted Subsidiary in respect of such employees, in an aggregate amount not to exceed $25 million in any calendar year; (5) the redemption or repurchase of any Common Stock of the Company held by a Restricted Subsidiary of the Company which obtained such Common Stock directly from the Company; (6) distributions to any Huntsman Parent Company in accordance with the Tax Sharing Agreement; (7) payments to any Huntsman Parent Company for legal, audit and other expenses directly relating to the administration of such Huntsman Parent Company not to exceed $10.0 million in any fiscal year; (8) the payment of consideration by a third party to equity holders of the Company; (9) additional Restricted Payments in an aggregate amount not to exceed $225 million since the Designated Date; (10) the payment of dividends or distributions to any Huntsman Parent Company which are contemporaneously applied to pay dividends on common stock of the Huntsman Public Parent at a rate not to exceed $0.40 per share per annum (such amount to be appropriately adjusted to reflect any stock split, reverse stock split, stock dividend, stock issuance or similar transactions made after the Designated Date so that the aggregate amount of dividends payable after such transaction is the same as the amount payable immediately prior to such transaction); (11) payments of dividends on Disqualified Capital Stock issued in accordance with Section 4.12; and (12) if the Consolidated Leverage Ratio of the Company, calculated after giving pro forma effect to any repurchase under this clause (12), is less than 2.5 to 1.0, then the Company may repurchase or dividend to a Huntsman Parent Company to repurchase, up to an aggregate of $250 million of Common Stock of a Huntsman Parent Company. In determining the aggregate amount of Restricted Payments made subsequent to the Designated Date in accordance with clause (iii) of the immediately preceding paragraph, cash amounts expended pursuant to clauses (1), (2), (3)(ii)(A) and (4) shall be included in such calculation and Restricted Payments made pursuant to the other clauses of this paragraph shall not be so included. Not later than the date of making any Restricted Payment pursuant to clause (iii) of the second preceding paragraph or clause (9) of the immediately preceding paragraph, the Company shall deliver to the Trustee an officers’ certificate stating that such Restricted Payment complies with this Indenture and setting forth in reasonable detail the basis upon which the required calculations were computed, which calculations may be based upon the Company’s quarterly financial statements last provided to the Trustee pursuant to Section 4.09disposition.
Appears in 1 contract
Samples: Gray Television Inc
Limitation on Restricted Payments. The Company shall will not, and shall will not cause or permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, make any Restricted Payment if Payment, unless at the time of such Restricted Payment or immediately and after giving effect thereto, to the proposed Restricted Payment (ia) a no Default or an Event of Default shall have occurred and be continuingcontinuing (or would result therefrom), (iib) the Company is not able to could incur at least $1.00 of additional Indebtedness other than Permitted Indebtedness under the tests described in compliance with the first sentence under Section 4.12, or 1010 hereof and (iiic) the aggregate amount of such Restricted Payment and all Restricted Payments including such proposed (the amount of any Restricted Payment not made after June 30, 2006, including, the in cash will be based on Fair Market Value as determined reasonably and in good faith Value) declared or made on or after the Issue Date by the Board of Managers of the Company of non-cash amounts constituting Restricted Payments or any Subsidiary shall not exceed the sum of: of (wi) 50% of the cumulative Consolidated Net Income (or if cumulative such Consolidated Net Income shall be a lossdeficit, minus 100% of such lossdeficit) of the Company earned from June 30, 2006 through aggregate Consolidated Net Income accrued during the period beginning on the first day of the fiscal quarter in which the Issue Date falls and ending on the last day of the last full fiscal quarter ending immediately preceding prior to the date the of such proposed Restricted Payment occurs (the “Reference Date”) (treating such period as a single accounting period); Payment, plus (xii) 100% of an amount equal to the aggregate net cash proceeds received by the Company Company, subsequent to the Issue Date, from any Person the issuance or sale (other than to a Subsidiary or an employee stock ownership plan or trust established by the Company for the benefit of the Companyits employees) from the issuance and sale subsequent to June 30of shares of its Capital Stock, 2006 of Qualified excluding Redeemable Stock, but including Capital Stock issued upon the exercise of the Company options, warrants or rights to purchase Capital Stock (other than Specified Venture Capital Redeemable Stock) or debt securities of the Company that are, upon issuance, convertible into or exchangeable for Qualified Capital Stock of the Company, but only when and the liability (expressed as a positive number) in accordance with GAAP in respect of any Indebtedness of the Company or carrying value of Redeemable Stock, which has been converted into, exchanged for or satisfied by the issuance of shares of Capital Stock (other than Redeemable Stock) of the Company, subsequent to the Issue Date plus (iii) to the extent not otherwise included in Consolidated Net Income, the net reduction in Investments in Non-Recourse Subsidiaries or joint ventures resulting from dividends, repayments of loans or advances, releases or discharges of guarantees or other obligations, or other transfers of assets, in each case to the Company or a Subsidiary after the Issue Date from any Non-Recourse Subsidiary or joint venture or from the redesignation of a Non-Recourse Subsidiary as a Subsidiary (valued in each case as provided in the definition of Investment), not to exceed, in the case of any Non-Recourse Subsidiary or joint venture, the total amount of Investments (other than Permitted Investments) in such debt securities are converted into Non-Recourse Subsidiary or exchanged for Qualified Capital Stock of joint venture made by the Company; Company and its Subsidiaries in such Non-Recourse Subsidiary or joint venture existing on or made after the Issue Date, plus (yiv) without duplication of any amounts to the extent not otherwise included in Consolidated Net Income or in clause (iii)(xiii) above, 100% the total amount of Investments in joint ventures (calculated as of the aggregate net cash proceeds Issue Date) which have become Wholly Owned Subsidiaries of any equity contribution received by the Company from a holder of the Company’s Capital Stock subsequent to June 30the Issue Date, 2006; plus (zv) $400 90 million. Notwithstanding the foregoing, the The foregoing provisions set forth in the immediately preceding paragraph shall will not prohibit: prevent (1A) the payment of any dividend on Capital Stock of any class within 60 days after the date of its declaration if at the date of declaration such payment would be permitted by this Indenture, provided that at the time of the declaration of such dividend if the dividend would have been permitted on the date of declaration; (2) the acquisition of any shares of Capital Stock of the Companydividend, either (i) solely in exchange for shares of Qualified Capital Stock of the Company or (ii) if no Default or Event of Default shall have occurred and be continuing; (B) any repurchase or redemption of the Capital Stock or Subordinated Indebted ness of the Company made by exchange for Capital Stock of the Company (other than Redeemable Stock), through or out of the application of net cash proceeds of a from the substantially concurrent Equity Offering issuance or sale (other than to a Subsidiary Subsidiary) of Capital Stock of the CompanyCompany (other than Redeemable Stock), provided that the net cash proceeds from such sale are excluded from computations under clause (c)(ii) above to the extent such proceeds are applied to purchase or redeem such Capital Stock or Subordinated Indebtedness; and (3C) the acquisition any repurchase or repayment redemption of any Subordinated Indebtedness of the Company that is subordinate or junior in right of payment to the Notes either (i) solely in exchange for shares for, or out of Qualified Capital Stock the net cash proceeds from the substantially concurrent sale of, new Subordinated Indebtedness of the Company, or (ii) if no Default or Event of Default shall have occurred and be continuing, through the application of net cash proceeds of (A) a substantially concurrent Equity Offering or (B) incurrence for cash of Refinancing Indebtedness, (in the case of (A) or (B), other than to a Subsidiary of the Company); (4) so long as no Default such Subordinated Indebtedness (x) is subordinated to the Debentures at least to the same extent as the Subordinated Indebtedness so exchanged, purchased or Event of Default shall have occurred and be continuingredeemed, repurchases by (y) has a stated maturity later than the Company of, or dividends to a Huntsman Parent Company to permit repurchases by a Huntsman Parent Company of, Common Stock stated maturity of the Company Subordinated Indebtedness so exchanged, purchased or a Huntsman Parent Company from employees redeemed and (z) has an Average Life at the time incurred that is greater than the remaining Average Life of the Company Subordinated Indebtedness so exchanged, purchased or any of its Subsidiaries or their authorized representatives upon the death, disability or termination of employment of such employees, in an aggregate amount not to exceed $25 million in any calendar year; (5) the redemption or repurchase of any Common Stock of the Company held by a Restricted Subsidiary of the Company which obtained such Common Stock directly from the Company; (6) distributions to any Huntsman Parent Company in accordance with the Tax Sharing Agreement; (7) payments to any Huntsman Parent Company for legal, audit and other expenses directly relating to the administration of such Huntsman Parent Company not to exceed $10.0 million in any fiscal year; (8) the payment of consideration by a third party to equity holders of the Company; (9) additional redeemed. Restricted Payments in an aggregate amount not to exceed $225 million since the Designated Date; (10) the payment of dividends or distributions to any Huntsman Parent Company which are contemporaneously applied to pay dividends on common stock of the Huntsman Public Parent at a rate not to exceed $0.40 per share per annum (such amount permitted to be appropriately adjusted to reflect any stock split, reverse stock split, stock dividend, stock issuance or similar transactions made after as described in the Designated Date so that preceding sentence will be excluded in calculating the aggregate amount of dividends payable after such transaction is the same as the amount payable immediately prior to such transaction); (11) payments of dividends on Disqualified Capital Stock issued in accordance with Section 4.12; and (12) if the Consolidated Leverage Ratio of the Company, calculated after giving pro forma effect to any repurchase under this clause (12), is less than 2.5 to 1.0, then the Company may repurchase or dividend to a Huntsman Parent Company to repurchase, up to an aggregate of $250 million of Common Stock of a Huntsman Parent Company. In determining the aggregate amount of Restricted Payments thereafter, except such Restricted Payments made subsequent to the Designated Date as described in accordance with clause (iii) of the immediately preceding paragraph, cash amounts expended pursuant to clauses (1A), (2), (3)(ii)(A) and (4) shall which will be included in such calculation and calculating the amount of Restricted Payments made pursuant to the other clauses of this paragraph shall not be so included. Not later than the date of making any Restricted Payment pursuant to clause (iii) of the second preceding paragraph or clause (9) of the immediately preceding paragraph, the Company shall deliver to the Trustee an officers’ certificate stating that such Restricted Payment complies with this Indenture and setting forth in reasonable detail the basis upon which the required calculations were computed, which calculations may be based upon the Company’s quarterly financial statements last provided to the Trustee pursuant to Section 4.09thereafter.
Appears in 1 contract
Limitation on Restricted Payments. (a) The Company shall will not, and shall will not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, make any Restricted Payment if (including by operation of or as a result of an LLC Division), unless at the time of such Restricted Payment or and immediately after giving effect theretoto the proposed Restricted Payment (with the value of any such Restricted Payment, if other than cash, to be determined by the Board of Directors in good faith, whose determination shall be conclusive and evidenced by a board resolution), (i) a Default or an Event of Default shall have occurred and be continuing, (ii) the Company is not able to incur at least $1.00 of additional Indebtedness other than Permitted Indebtedness in compliance with Section 4.12, or (iii) the aggregate amount of Restricted Payments including such proposed Restricted Payment made after June 30, 2006, including, the Fair Market Value as determined reasonably and in good faith by the Board of Managers of the Company of non-cash amounts constituting Restricted Payments 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 the Company earned from June 30, 2006 through the last day of the last full fiscal quarter immediately preceding 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 the Company from any Person (other than a Subsidiary of the Company) from the issuance and sale subsequent to June 30, 2006 of Qualified Capital Stock of the Company (other than Specified Venture Capital Stock) or debt securities of the Company that are, upon issuance, convertible into or exchangeable for Qualified Capital Stock of the Company, but only when and to the extent such debt securities are converted into or exchanged for Qualified Capital Stock of the Company; 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 the Company from a holder of the Company’s Capital Stock subsequent to June 30, 2006; plus (z) $400 million. Notwithstanding the foregoing, the provisions set forth in the immediately preceding paragraph shall 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) the acquisition of any shares of Capital Stock of the Company, either (i) solely in exchange for shares of Qualified Capital Stock of the Company or (ii) if no Default or Event of Default shall have occurred and be continuingcontinuing or would occur as a consequence thereof, through (ii) the application Company could incur at least $1.00 of additional Indebtedness pursuant to the provisions of Section 4.07(a) and (iii) the aggregate amount of all Restricted Payments made after the Issue Date shall not exceed the sum of (without duplication) (a) $2,000 million, (b) an amount equal to the Company’s Cumulative Operating Cash Flow less 1.4 times the Company’s Cumulative Consolidated Interest Expense, (c) the aggregate amount of all net cash proceeds of a substantially concurrent Equity Offering received after June 30, 2020 by the Company from (x) the issuance and sale (other than to a Subsidiary of the Company); ) of Capital Stock of the Company (3other than Disqualified Stock or Designated Preferred Stock) to the acquisition extent that such proceeds are not used to redeem, repurchase, retire or repayment of otherwise acquire Capital Stock or any Indebtedness of the Company or any Subsidiary of the Company pursuant to clause (ii) of Section 4.05(b) or (y) Indebtedness of the Company issued since June 30, 2020 (other than to Subsidiaries) that is subordinate or junior in right of payment to the Notes either (i) solely in exchange for shares of Qualified have been converted into Capital Stock of the Company, Company (other than Disqualified Stock or (ii) if no Default or Event of Default shall have occurred and be continuing, through the application of net cash proceeds of (A) a substantially concurrent Equity Offering or (B) incurrence for cash of Refinancing IndebtednessDesignated Preferred Stock), (d) to the extent that any Unrestricted Subsidiary is redesignated as a Restricted Subsidiary after June 30, 2020, 100% of the fair market value of such Subsidiary as of the date of such redesignation, (e) the aggregate amount returned in cash or Cash Equivalents with respect of Investments (other than Permitted Investments) made after June 30, 2020 whether through interest payments, principal payments, dividends or other distributions, and (f) in the case of the disposition or repayment of any Investment for cash, which Investment constituted a Restricted Payment made after June 30, 2020, an amount equal to the return of capital with respect to such Investment, reduced (Abut not below zero) or (B)by the excess, other than to a Subsidiary if any, of the Company); (4) so long as no Default or Event cost of Default shall have occurred and be continuingthe disposition of such Investment over the gain, repurchases if any, realized by the Company of, or dividends to a Huntsman Parent Company to permit repurchases by a Huntsman Parent Company of, Common Stock of the Company or a Huntsman Parent Company from employees of the Company or any of its Subsidiaries or their authorized representatives upon the death, disability or termination of employment such Restricted Subsidiary in respect of such employees, in an aggregate amount not to exceed $25 million in any calendar year; (5) the redemption or repurchase of any Common Stock of the Company held by a Restricted Subsidiary of the Company which obtained such Common Stock directly from the Company; (6) distributions to any Huntsman Parent Company in accordance with the Tax Sharing Agreement; (7) payments to any Huntsman Parent Company for legal, audit and other expenses directly relating to the administration of such Huntsman Parent Company not to exceed $10.0 million in any fiscal year; (8) the payment of consideration by a third party to equity holders of the Company; (9) additional Restricted Payments in an aggregate amount not to exceed $225 million since the Designated Date; (10) the payment of dividends or distributions to any Huntsman Parent Company which are contemporaneously applied to pay dividends on common stock of the Huntsman Public Parent at a rate not to exceed $0.40 per share per annum (such amount to be appropriately adjusted to reflect any stock split, reverse stock split, stock dividend, stock issuance or similar transactions made after the Designated Date so that the aggregate amount of dividends payable after such transaction is the same as the amount payable immediately prior to such transaction); (11) payments of dividends on Disqualified Capital Stock issued in accordance with Section 4.12; and (12) if the Consolidated Leverage Ratio of the Company, calculated after giving pro forma effect to any repurchase under this clause (12), is less than 2.5 to 1.0, then the Company may repurchase or dividend to a Huntsman Parent Company to repurchase, up to an aggregate of $250 million of Common Stock of a Huntsman Parent Company. In determining the aggregate amount of Restricted Payments made subsequent to the Designated Date in accordance with clause (iii) of the immediately preceding paragraph, cash amounts expended pursuant to clauses (1), (2), (3)(ii)(A) and (4) shall be included in such calculation and Restricted Payments made pursuant to the other clauses of this paragraph shall not be so included. Not later than the date of making any Restricted Payment pursuant to clause (iii) of the second preceding paragraph or clause (9) of the immediately preceding paragraph, the Company shall deliver to the Trustee an officers’ certificate stating that such Restricted Payment complies with this Indenture and setting forth in reasonable detail the basis upon which the required calculations were computed, which calculations may be based upon the Company’s quarterly financial statements last provided to the Trustee pursuant to Section 4.09disposition.
Appears in 1 contract
Samples: Gray Television Inc
Limitation on Restricted Payments. The Company Issuers shall not, and shall not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, make any Restricted Payment if at Payment. The preceding paragraph, however, will not prohibit (i) the time payment of such Restricted Payment Permitted Quarterly Tax Distributions to the members of the Company as described below and (ii) Investments in connection with the development and/or improvement of the Mohegan Sun or immediately a hotel adjacent to the Mohegan Sun or the purchase of the 5% interest of the minority partner in the Manager, provided, however, that, after giving pro forma effect theretoto the proposed Investment, (i) a Default or an Event of Default shall have occurred and be continuing, (ii) the Company is not able to incur at least $1.00 of additional Indebtedness other than Permitted Indebtedness in compliance with Section 4.12, or (iii) the aggregate amount of Restricted Payments including such proposed Restricted Payment made after June 30, 2006, including, the Fair Market Value as determined reasonably and in good faith by the Board of Managers of the Company of non-cash amounts constituting Restricted Payments 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 the Company earned from June 30, 2006 through the last day of the last full fiscal quarter immediately preceding 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 the Company from any Person (other than a Subsidiary of the Company) from the issuance and sale subsequent to June 30, 2006 of Qualified Capital Stock of the Company (other than Specified Venture Capital Stock) or debt securities of the Company that are, upon issuance, convertible into or exchangeable for Qualified Capital Stock of the Company, but only when and to the extent such debt securities are converted into or exchanged for Qualified Capital Stock of the Company; 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 the Company from a holder of the Company’s Capital Stock subsequent to June 30, 2006; plus (z) $400 million. Notwithstanding the foregoing, the provisions set forth in the immediately preceding paragraph shall 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) the acquisition of any shares of Capital Stock of the Company, either (i) solely in exchange for shares of Qualified Capital Stock of the Company or (ii) if no Default or Event of Default shall have occurred or be continuing and be continuing(ii) the aggregate amount of all such Investments made on or after the Issue Date that are outstanding (after giving effect to any such Investments that are returned to the Company without restriction, through in cash, on or prior to the application date of net cash proceeds any such calculation) at any time does not exceed $5.0 million. Notwithstanding the foregoing provisions of a substantially concurrent Equity Offering (this covenant, the Issuers will not, directly or indirectly, make any Investment in the Manager other than to a Subsidiary of the Company); (3) the acquisition capital contribution or repayment of any Indebtedness of the Company that is subordinate or junior in right of payment to the Notes either loan made (i) solely substantially concurrently with proportionate capital contributions or loans made in exchange for shares of Qualified Capital Stock cash by all other partners of the Company, or Manager and (ii) if no Default or Event at a time when the Manager is in compliance (without regard to any cure periods) with the terms of Default shall have occurred and be continuing, through the application of net cash proceeds of (A) a substantially concurrent Equity Offering or (B) incurrence for cash of Refinancing Indebtedness, (in the case of (A) or (B), other than to a Subsidiary of the Company); (4) Section 4.13. For so long as no Default or Event of Default shall have occurred and be continuing, repurchases by the Company ofis a partnership or substantially similar pass-through entity for Federal income tax purposes, or dividends to a Huntsman Parent Company to permit repurchases by a Huntsman Parent Company of, Common Stock of the Company or a Huntsman Parent Company from employees of the Company or any of may make cash distributions to its Subsidiaries or their authorized representatives upon the deathmembers, disability or termination of employment of such employeesduring each Quarterly Payment Period, in an aggregate amount not to exceed $25 million the Permitted Quarterly Tax Distribution in any calendar year; (5) the redemption or repurchase of any Common Stock respect of the Company held related Estimation Period. If any portion of a Permitted Quarterly Tax Distribution is not distributed during such Quarterly Payment Period, the Permitted Quarterly Tax Distribution payable during the immediately following Quarterly Payment Period shall be increased by a Restricted Subsidiary of the Company which obtained such Common Stock directly from undistributed portion. Within 10 days following the Company; (6) distributions to any Huntsman Parent Company in accordance with the Tax Sharing Agreement; (7) payments to any Huntsman Parent Company 's filing of Internal Revenue Service Form 1065 for legal, audit and other expenses directly relating to the administration of such Huntsman Parent Company not to exceed $10.0 million in any fiscal year; (8) the payment of consideration by a third party to equity holders of the Company; (9) additional Restricted Payments in an aggregate amount not to exceed $225 million since the Designated Date; (10) the payment of dividends or distributions to any Huntsman Parent Company which are contemporaneously applied to pay dividends on common stock of the Huntsman Public Parent at a rate not to exceed $0.40 per share per annum (such amount to be appropriately adjusted to reflect any stock split, reverse stock split, stock dividend, stock issuance or similar transactions made after the Designated Date so that the aggregate amount of dividends payable after such transaction is the same as the amount payable immediately prior to such transaction); (11) payments of dividends on Disqualified Capital Stock issued in accordance with Section 4.12; and (12) if the Consolidated Leverage Ratio of the Company, calculated after giving pro forma effect to any repurchase under this clause (12), is less than 2.5 to 1.0, then the Company may repurchase or dividend to a Huntsman Parent Company to repurchase, up to an aggregate of $250 million of Common Stock of a Huntsman Parent Company. In determining the aggregate amount of Restricted Payments made subsequent to the Designated Date in accordance with clause (iii) of the immediately preceding paragraph, cash amounts expended pursuant to clauses (1), (2), (3)(ii)(A) and (4) shall be included in such calculation and Restricted Payments made pursuant to the other clauses of this paragraph shall not be so included. Not later than the date of making any Restricted Payment pursuant to clause (iii) of the second preceding paragraph or clause (9) of the immediately preceding paragraphtaxable year, the Company Tax Amounts CPA shall deliver to file with the Trustee an officers’ certificate stating that such Restricted Payment complies with this Indenture and setting forth a written statement indicating in reasonable detail the basis upon which calculation of the required calculations were computedTrue-up Amount. In the case of a True-up Amount due to the members, which calculations may the Permitted Quarterly Tax Distribution payable during the immediately following Quarterly Payment Period shall be based upon increased by such True-up Amount. In the case of a True-up Amount due to the Company’s quarterly financial statements last provided , the Permitted Quarterly Tax Distribution payable during the immediately following Quarterly Payment Period shall be reduced by such True-up Amount and the excess, if any, of the True-up Amount over such Permitted Quarterly Tax Distribution shall be applied to reduce the Trustee pursuant to Section 4.09immediately following Permitted Quarterly Tax Distributions until such True-up Amount is entirely offset.
Appears in 1 contract
Samples: Indenture (Waterford Gaming LLC)
Limitation on Restricted Payments. The Company shall will not, and shall not cause or nor will it permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, (i) declare or pay any dividend on, or make any distribution in respect of, or purchase, redeem or otherwise acquire or retire for value, any Capital Stock of the Company other than through the issuance solely of the Company's own Capital Stock (other than Disqualified Stock), or rights thereto; (ii) make any principal payment on, or redeem, repurchase, defease or otherwise acquire or retire for value prior to scheduled principal payments or maturity, Indebtedness of the Company or any Restricted Subsidiary which is expressly subordinated in right of payment to the Notes (other than Indebtedness Incurred after the issuance of the Notes provided that such repayment, redemption, repurchase, defeasance or other retirement is made substantially concurrent with the receipt of proceeds from the Incurrence of Indebtedness that by its terms is both subordinated in right of payment to the Notes and matures, by sinking fund or otherwise, after September 15, 2010); or (iii) make any Restricted Payment if Investment (such payments or any other actions described in (i), (ii) and (iii) being referred to herein collectively as, "Restricted Payments") unless (A) at the time of such Restricted Payment or immediately of, and after giving effect theretoto, the proposed Restricted Payment, no Event of Default (i) a Default and no event that, after notice or lapse of time, or both, would become an Event of Default Default) shall have occurred and be continuing, (iiB) the Company is not able to incur at least Incur an additional $1.00 of additional Indebtedness other than Permitted Indebtedness in compliance with pursuant to the first paragraph of the covenant described under Section 4.126.02 herein, or and (iiiC) at the time of, and after giving effect thereto, the sum of the aggregate amount of expended (or with respect to guaranties or similar arrangements the amount then guaranteed) for all such Restricted Payments including (the amount expended for such proposed Restricted Payment made after June 30purposes, 2006if other than in cash, including, the Fair Market Value as to be determined reasonably and in good faith by the Board of Managers Directors of the Company Company, whose determination shall be conclusive and evidenced by a resolution of non-cash amounts constituting Restricted Payments such Board of Directors filed with the Trustee) subsequent to June 30, 1997 shall not exceed the sum of: of (wI) 50% of the cumulative aggregate Consolidated Net Income (or if cumulative or, in case such aggregate Consolidated Net Income shall be a lossdeficit, minus 100% of such lossdeficit) of the Company earned from accrued on a cumulative basis subsequent to June 30, 2006 through the last day of the last full fiscal quarter immediately preceding the date the Restricted Payment occurs 1997, (the “Reference Date”II) (treating such period as a single accounting period); plus (x) 100% of the aggregate net proceeds, including the fair market value of property other than cash proceeds (as determined by the Board of Directors of the Company, whose determination shall be conclusive and evidenced by a resolution of such Board of Directors filed with the Trustee), received by the Company from any Person the issuance or sale, after the Original Issue Date, of Capital Stock (other than a Subsidiary of the Company) from the issuance and sale subsequent to June 30, 2006 of Qualified Capital Stock of the Company (other than Specified Venture Capital Disqualified Stock) or debt securities of the Company that are, upon issuance, convertible into or exchangeable for Qualified Capital Stock of the Company, including Capital Stock (other than Disqualified Stock) of the Company issued subsequent to the Original Issue Date upon the conversion of Indebtedness of the Company initially issued for cash, (III) 100% of dividends or distributions (the fair value of which, if other than cash, to be determined by the Board of Directors, in good faith) paid to the Company (or any Restricted Subsidiary) by an Unrestricted Subsidiary, Homebuilding Joint Venture or any other person in which the Company (or any Restricted Subsidiary), directly or indirectly, has an ownership interest but only when and less than a 100% ownership interest to the extent that such debt securities are converted into dividends or exchanged for Qualified Capital Stock distributions do not exceed the amount of loans, advances or capital contributions made to any such entity or person subsequent to the Company; plus (y) without duplication of any amounts Original Issue Date and included in clause the calculation of Restricted Payments, and (iii)(x) above, 100% of the aggregate net cash proceeds of any equity contribution received by the Company from a holder of the Company’s Capital Stock subsequent to June 30, 2006; plus (zIV) $400 million. Notwithstanding 40,000,000; provided, however, that the foregoing, the provisions set forth in the immediately preceding paragraph foregoing shall not prohibit: prevent (1aa) the -------- ------- payment of any dividend within 60 days after the date of declaration thereof, if at said date of declaration the making of such dividend if the dividend payment would have been permitted complied with the provisions of this limitation on the date dividends; provided, however, that such dividend shall be included in future calculations of declaration; Restricted Payments, (2bb) the acquisition retirement of any shares of the Company's Capital Stock by exchange for, or out of proceeds of the Companysubstantially concurrent sale of, either (i) solely in exchange for other shares of Qualified its Capital Stock of the Company or (ii) if no Default or Event of Default shall have occurred and be continuing, through the application of net cash proceeds of a substantially concurrent Equity Offering (other than to a Subsidiary of the CompanyDisqualified Stock); (3) the acquisition or repayment of any Indebtedness of the Company that is subordinate or junior in right of payment to the Notes either (i) solely in exchange for shares of Qualified Capital Stock of the Companyprovided, or (ii) if no Default or Event of Default shall have occurred and be continuinghowever, through the application of net cash proceeds of (A) a substantially concurrent Equity Offering or (B) incurrence for cash of Refinancing Indebtedness, (in the case of (A) or (B), other than to a Subsidiary of the Company); (4) so long as no Default or Event of Default shall have occurred and be continuing, repurchases by the Company of, or dividends to a Huntsman Parent Company to permit repurchases by a Huntsman Parent Company of, Common Stock of the Company or a Huntsman Parent Company from employees of the Company or any of its Subsidiaries or their authorized representatives upon the death, disability or termination of employment of such employees, in an aggregate amount not to exceed $25 million in any calendar year; (5) the redemption or repurchase of any Common Stock of the Company held by a Restricted Subsidiary of the Company which obtained such Common Stock directly from the Company; (6) distributions to any Huntsman Parent Company in accordance with the Tax Sharing Agreement; (7) payments to any Huntsman Parent Company for legal, audit and other expenses directly relating to the administration of such Huntsman Parent Company not to exceed $10.0 million in any fiscal year; (8) the payment of consideration by a third party to equity holders of the Company; (9) additional Restricted Payments in an aggregate amount not to exceed $225 million since the Designated Date; (10) the payment of dividends or distributions to any Huntsman Parent Company which are contemporaneously applied to pay dividends on common stock of the Huntsman Public Parent at a rate not to exceed $0.40 per share per annum (such amount to be appropriately adjusted to reflect any stock split, reverse stock split, stock dividend, stock issuance or similar transactions made after the Designated Date so that the aggregate amount of dividends payable after net proceeds from such transaction is sale shall be excluded from the same as the amount payable immediately prior to such transaction); (11) payments of dividends on Disqualified Capital Stock issued in accordance with Section 4.12; and (12) if the Consolidated Leverage Ratio calculation of the Company, calculated after giving pro forma effect to any repurchase amounts under this clause (12), is less than 2.5 to 1.0, then the Company may repurchase or dividend to a Huntsman Parent Company to repurchase, up to an aggregate of $250 million of Common Stock of a Huntsman Parent Company. In determining the aggregate amount of Restricted Payments made subsequent to the Designated Date in accordance with clause (iii) of the immediately preceding paragraph, cash amounts expended pursuant to clauses (1), (2), (3)(ii)(A) and (4) shall be included in such calculation and Restricted Payments made pursuant to the other clauses of this paragraph shall not be so included. Not later than the date of making any Restricted Payment pursuant to clause (iii) of the second preceding paragraph or clause (9) of the immediately preceding paragraph, the Company shall deliver to the Trustee an officers’ certificate stating that such Restricted Payment complies with this Indenture and setting forth in reasonable detail the basis upon which the required calculations were computed, which calculations may be based upon the Company’s quarterly financial statements last provided to the Trustee pursuant to Section 4.09.subclause
Appears in 1 contract
Limitation on Restricted Payments. The Company shall will not, and shall will not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, make any Restricted Payment if at the time of such Restricted Payment Payment, if, immediately prior or immediately after giving effect thereto, thereto (ia) a Default or an Event of Default shall have occurred and be continuingwould exist, (iib) the Company is would not able be permitted to incur at least $1.00 of additional Indebtedness other than Permitted pursuant to the Annual Operating Cash Flow Ratio provision set forth in the second paragraph of Section 4.11, (c) the Company would not be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Priority and Pari Passu Debt to Cash Flow Ratio set forth in compliance with Section 4.12, 4.9 or (iiid) the aggregate amount of all Restricted Payments made by the Company and its Restricted Subsidiaries, including such proposed Restricted Payment (if not made after June 30in cash, 2006, including, then the Fair Market Value as determined reasonably of any property used therefor) from and in good faith by after the Board Existing Notes Issue Date and on or prior to the date of Managers of the Company of non-cash amounts constituting such Restricted Payments Payment, shall exceed the sum of: of (wi) 50% of the cumulative amount determined by subtracting (x) 1.75 times the aggregate Consolidated Net Income (or if cumulative Consolidated Net Income shall be a loss, minus 100% of such loss) Interest Expense of the Company earned for the period (taken as one accounting period) from June 30, 2006 through the first day of the first quarter commencing after the Existing Notes Issue Date to the last day of the last full fiscal quarter immediately preceding prior to the date of the proposed Restricted Payment occurs (the “Reference Date”"Computation Period") from (treating such period as a single accounting period); y) Operating Cash Flow of the Company for the Computation Period, plus (xii) 100% of the aggregate net cash proceeds Net Proceeds received by the Company from any Person (other than a Subsidiary of the Company) from the issuance and sale subsequent to June 30, 2006 of Qualified Capital Stock of the Company (other than Specified Venture Capital Stock) or debt securities of the Company that are, upon issuance, convertible into or exchangeable for Qualified Capital Stock of the Company, but only when and to the extent such debt securities are converted into or exchanged for Qualified Capital Stock of the Company; 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 the Company from a holder of the Company’s Capital Stock subsequent to June 30, 2006; plus (z) $400 million. Notwithstanding the foregoing, the provisions set forth in the immediately preceding paragraph shall 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) the acquisition of any shares of Capital Stock of the Company, either (i) solely in exchange for shares of Qualified Capital Stock of the Company or (ii) if no Default or Event of Default shall have occurred and be continuing, through the application of net cash proceeds of a substantially concurrent Equity Offering (other than to a Subsidiary of the Company) of its Qualified Capital Stock after the Existing Notes Issue Date and on or prior to the date of such Restricted Payment (and in any case other than Excluded Contributions, Excluded Cash Contributions and Investment Equity); , plus (3iii) 100% of the acquisition or repayment aggregate amount of any Indebtedness non-recourse contributions to the capital of the Company that is subordinate or junior and its Restricted Subsidiaries since the Existing Notes Issue Date (in right of payment any case other than Excluded Contributions, Excluded Cash Contributions and Investment Equity), and (iv) to the Notes either extent not otherwise included in clauses (i) solely - (iii), above, an amount equal to the net reduction in exchange for shares Investments in Unrestricted Subsidiaries resulting from payments of Qualified Capital Stock dividends, repayment of the Companyloans or advances, or (ii) if no Default or Event other transfers of Default shall have occurred and be continuingassets, through the application of net cash proceeds of (A) a substantially concurrent Equity Offering or (B) incurrence for cash of Refinancing Indebtedness, (in the each case of (A) or (B), other than to a Subsidiary of the Company); (4) so long as no Default or Event of Default shall have occurred and be continuing, repurchases by the Company of, or dividends to a Huntsman Parent Company to permit repurchases by a Huntsman Parent Company of, Common Stock of the Company or a Huntsman Parent Company from employees of the Company or any of its Subsidiaries or their authorized representatives upon the death, disability or termination of employment of such employees, in an aggregate amount not to exceed $25 million in any calendar year; (5) the redemption or repurchase of any Common Stock of the Company held by a Restricted Subsidiary of the Company which obtained such Common Stock directly from Unrestricted Subsidiaries, or from redesignations of Unrestricted Subsidiaries as Restricted Subsidiaries (valued in each case as provided in the Company; (6definition of "Investments") distributions to any Huntsman Parent Company in accordance with the Tax Sharing Agreement; (7) payments to any Huntsman Parent Company for legal, audit and other expenses directly relating to the administration of such Huntsman Parent Company not to exceed $10.0 million in any fiscal year; (8) the payment of consideration by a third party to equity holders of the Company; (9) additional Restricted Payments in an aggregate amount not to exceed $225 million since the Designated Existing Notes Issue Date; (10) the payment of dividends or distributions to any Huntsman Parent Company which are contemporaneously applied to pay dividends on common stock of the Huntsman Public Parent at a rate not to exceed $0.40 per share per annum (such amount to be appropriately adjusted to reflect any stock split, reverse stock split, stock dividend, stock issuance or similar transactions made after the Designated Date so that the aggregate amount of dividends payable after such transaction is the same as the amount payable immediately prior to such transaction); (11) payments of dividends on Disqualified Capital Stock issued in accordance with Section 4.12; and (12) if the Consolidated Leverage Ratio of the Company, calculated after giving pro forma effect to any repurchase under this clause (12), is less than 2.5 to 1.0, then the Company may repurchase or dividend to a Huntsman Parent Company to repurchase, up to an aggregate of $250 million of Common Stock of a Huntsman Parent Company. In determining the aggregate amount of Restricted Payments made subsequent to the Designated Date in accordance with clause (iii) of the immediately preceding paragraph, cash amounts expended pursuant to clauses (1), (2), (3)(ii)(A) and (4) shall be included in such calculation and Restricted Payments made pursuant to the other clauses of this paragraph shall not be so included. Not later than the date of making any Restricted Payment pursuant to clause (iii) of the second preceding paragraph or clause (9) of the immediately preceding paragraph, the Company shall deliver to the Trustee an officers’ certificate stating that such Restricted Payment complies with this Indenture and setting forth in reasonable detail the basis upon which the required calculations were computed, which calculations may be based upon the Company’s quarterly financial statements last provided to the Trustee pursuant to Section 4.09.
Appears in 1 contract
Samples: Centennial Communications Corp /De
Limitation on Restricted Payments. The On and after the Issue Date the Company shall not, and shall not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, make any Restricted Payment if at the time of Payment, if, after giving effect to such Restricted Payment or immediately after giving effect theretoon a PRO FORMA basis, (i1) a Default or an Event of Default shall have occurred and be continuing, (ii2) the Company is not able permitted to incur at least $1.00 of additional Indebtedness other than Permitted Indebtedness pursuant to the Leverage Ratio in compliance with Section 4.124.11, or (iii3) the aggregate amount of all Restricted Payments made by the Company and its Subsidiaries, including after giving effect to such proposed Restricted Payment made Payment, from and after June 30the Issue Date, 2006, including, the Fair Market Value as determined reasonably and in good faith by the Board of Managers of the Company of non-cash amounts constituting Restricted Payments shall would exceed the sum of: 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 the Company earned from June 30, 2006 through the last day of the last full fiscal quarter immediately preceding the date the Restricted Payment occurs (the “Reference Date”) (treating such period as a single accounting period); plus (xa)(x) 100% of the aggregate net cash proceeds Consolidated EBITDA of the Company and its Consolidated Subsidiaries for the period (taken as one accounting period), commencing on the first day of the first full fiscal quarter commencing after the Issue Date, to and including the last day of the fiscal quarter ended immediately prior to the date of each such calculation (or, in the event Consolidated EBITDA for such period is a deficit, then minus 100% of such deficit) less (y) 1.4 times Consolidated Fixed Charges for the same period plus (b) the aggregate Net Cash Proceeds received by the Company from any Person the sale of its Qualified Capital Stock (other than (i) to a Subsidiary of the CompanyCompany and (ii) from the issuance and sale subsequent to June 30, 2006 of Qualified Capital Stock of the Company (other than Specified Venture Capital Stock) or debt securities of the Company that are, upon issuance, convertible into or exchangeable for Qualified Capital Stock of the Company, but only when and to the extent such debt securities are converted into or exchanged for applied in connection with a Qualified Capital Stock Exchange), after the Issue Date. The foregoing clauses (2) and (3) of the Company; plus immediately preceding paragraph, however, will not prohibit (w) payments to the Parent Guarantor to reimburse the Parent Guarantor for reasonable and necessary corporate and administrative expenses, (x) Restricted Investments, PROVIDED, that, after giving PRO FORMA effect to such Restricted Investment, the aggregate amount of all such Restricted Investments made on or after the Issue Date that are outstanding (after giving effect to any such Restricted Investments that are returned to the Company or the Subsidiary Guarantor that made such prior Restricted Investment, without restriction, in cash on or prior to the date of any such calculation) at any time does not exceed $25.0 million, (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 the Company from a holder of the Company’s Capital Stock subsequent to June 30, 2006; plus Qualified Exchange and (z) $400 million. Notwithstanding the foregoing, the provisions set forth in the immediately preceding paragraph shall not prohibit: (1) the payment of any dividend on Qualified Capital Stock within 60 days after the date of its declaration of if such dividend if the dividend would could have been permitted made on the date of declaration; (2) such declaration in compliance with the acquisition foregoing provisions. The full amount of any shares of Capital Stock Restricted Payment made pursuant to the foregoing clauses (x) and (z) of the Companyimmediately preceding sentence, either (i) solely in exchange for shares of Qualified Capital Stock of the Company or (ii) if no Default or Event of Default shall have occurred and however, will be continuing, through the application of net cash proceeds of a substantially concurrent Equity Offering (other than to a Subsidiary of the Company); (3) the acquisition or repayment of any Indebtedness of the Company that is subordinate or junior in right of payment to the Notes either (i) solely in exchange for shares of Qualified Capital Stock of the Company, or (ii) if no Default or Event of Default shall have occurred and be continuing, through the application of net cash proceeds of (A) a substantially concurrent Equity Offering or (B) incurrence for cash of Refinancing Indebtedness, (deducted in the case calculation of (A) or (B), other than to a Subsidiary of the Company); (4) so long as no Default or Event of Default shall have occurred and be continuing, repurchases by the Company of, or dividends to a Huntsman Parent Company to permit repurchases by a Huntsman Parent Company of, Common Stock of the Company or a Huntsman Parent Company from employees of the Company or any of its Subsidiaries or their authorized representatives upon the death, disability or termination of employment of such employees, in an aggregate amount not to exceed $25 million in any calendar year; (5) the redemption or repurchase of any Common Stock of the Company held by a Restricted Subsidiary of the Company which obtained such Common Stock directly from the Company; (6) distributions to any Huntsman Parent Company in accordance with the Tax Sharing Agreement; (7) payments to any Huntsman Parent Company for legal, audit and other expenses directly relating to the administration of such Huntsman Parent Company not to exceed $10.0 million in any fiscal year; (8) the payment of consideration by a third party to equity holders of the Company; (9) additional Restricted Payments in an aggregate amount not to exceed $225 million since the Designated Date; (10) the payment of dividends or distributions to any Huntsman Parent Company which are contemporaneously applied to pay dividends on common stock of the Huntsman Public Parent at a rate not to exceed $0.40 per share per annum (such amount to be appropriately adjusted to reflect any stock split, reverse stock split, stock dividend, stock issuance or similar transactions made after the Designated Date so that the aggregate amount of dividends payable after such transaction is the same as the amount payable immediately prior to such transaction); (11) payments of dividends on Disqualified Capital Stock issued in accordance with Section 4.12; and (12) if the Consolidated Leverage Ratio of the Company, calculated after giving pro forma effect to any repurchase under this clause (12), is less than 2.5 to 1.0, then the Company may repurchase or dividend to a Huntsman Parent Company to repurchase, up to an aggregate of $250 million of Common Stock of a Huntsman Parent Company. In determining the aggregate amount of Restricted Payments available to be made subsequent pursuant to the Designated Date in accordance with clause (iii3) of the immediately preceding paragraph, cash amounts expended pursuant to clauses (1), (2), (3)(ii)(A) and (4) shall be included in such calculation and Restricted Payments made pursuant to the other clauses of this paragraph shall not be so included. Not later than the date of making any Restricted Payment pursuant to clause (iii) of the second preceding paragraph or clause (9) of the immediately preceding paragraph, the Company shall deliver to the Trustee an officers’ certificate stating that such Restricted Payment complies with this Indenture and setting forth in reasonable detail the basis upon which the required calculations were computed, which calculations may be based upon the Company’s quarterly financial statements last provided to the Trustee pursuant to Section 4.09.
Appears in 1 contract
Samples: Jacor Communications Inc
Limitation on Restricted Payments. (a) The Company shall will not, and shall will not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, make any Restricted Payment Payment, except as set forth in paragraphs (b) and (c) below, if at the time of such Restricted Payment or immediately prior thereto and after giving effect thereto, thereto on a pro forma basis (i1) a Default or an Event of Default shall have occurred and be continuing, (ii2) the Company is could not able to incur -43- 52 at least one dollar ($1.00 1.00) of additional Indebtedness other than Permitted Indebtedness in compliance with pursuant to clause (ii) of paragraph (a) of Section 4.12, 4.11 hereof or (iii3) the aggregate amount of all Restricted Payments made by the Company and its Subsidiaries, including after giving pro forma effect to such proposed Restricted Payment made Payment, from and after June 30January 1, 20061997, including, the Fair Market Value as determined reasonably and in good faith by the Board of Managers of the Company of non-cash amounts constituting Restricted Payments shall would exceed the sum of: of (wa) 50% of the cumulative aggregate Adjusted Consolidated Net Income of the Company for the period (or if cumulative taken as one accounting period) commencing on January 1, 1997, to and including the last day of the latest fiscal quarter ended immediately prior to the date of each such calculation for which financial statements are available (or, in the event Adjusted Consolidated Net Income shall be for such period is a lossdeficit, then minus 100% of such lossdeficit), plus (b) the aggregate Net Cash Proceeds received (or to be received within one (1) Business Day upon the Closing of a Public Equity Offering of Qualified Capital pursuant to a registration statement which prior to such Restricted Payment, has been declared effective by the SEC; provided, however, that if any such Public Equity Offering does not result in the Company earned from June 30receiving such proceeds within one (1) Business Day, 2006 through then any payment that would be in contravention of this Section 4.3 but for this parenthetical clause shall be deemed in contravention of this Section 4.3 unless cash equal to such payment is repaid in full to the last day Company as an equity contribution to the Company within one (1) Business Day of the last full fiscal quarter immediately preceding the date the Restricted Payment occurs (the “Reference Date”when such closing was scheduled to occur) (treating such period as a single accounting period); plus (x) 100% of the aggregate net cash proceeds received by the Company from any Person (other than a Subsidiary the sale of the Company) from the issuance and sale subsequent to June 30, 2006 of 's Qualified Capital Stock of the Company (other than Specified Venture Capital Stock) or debt securities of the Company that are, upon issuance, convertible into or exchangeable for Qualified Capital Stock of the Company, but only when and to the extent such debt securities are converted into or exchanged for Qualified Capital Stock of the Company; 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 the Company from a holder of the Company’s Capital Stock subsequent to June 30, 2006; plus (z) $400 million. Notwithstanding the foregoing, the provisions set forth in the immediately preceding paragraph shall 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) the acquisition of any shares of Capital Stock of the Company, either (i) solely in exchange for shares of Qualified Capital Stock of the Company or (ii) if no Default or Event of Default shall have occurred and be continuing, through the application of net cash proceeds of a substantially concurrent Equity Offering (other than to a Subsidiary of the Company); Company and other than in connection with a Qualified Exchange) after the Issue Date, plus (3c) the acquisition amount by which Indebtedness of the Company or repayment any Guarantor is reduced on the Company's balance sheet upon the conversion or exchange (other than an issuance or sale to a Subsidiary of the Company or an employee stock ownership plan or other trust established by the Company or any of it Subsidiaries) subsequent to the end of the most recent fiscal quarter ended immediately prior to the date of the Indenture, of any Indebtedness of the Company that is subordinate or junior in right any Guarantor convertible or exchangeable for Capital (other than Disqualified Capital) of payment the Company (less the amount of any cash or other property distributed by the Company or any Restricted Subsidiary upon such conversion or exchange), plus (d) the amount equal to the Notes either (i) solely net reduction in exchange for shares of Qualified Capital Stock of the Company, or (ii) if no Default or Event of Default shall have occurred and be continuing, through the application of net cash proceeds of Investments resulting from (A) a substantially concurrent Equity Offering payments of dividends, repayments of loans or advances or other transfers of assets to the Company or any Guarantor or the satisfaction or reduction (other than by means of payments by the Company or any Subsidiary) of obligations of other persons which have been guaranteed by the Company or any Guarantor or (B) incurrence for cash the redesignation of Refinancing IndebtednessUnrestricted Subsidiaries as Subsidiaries which execute Guarantees, (in the case of (Ad) or such net reduction in Investments being (B), other than x) valued as provided in the definition of "Investment," (y) in an amount not to a Subsidiary exceed the aggregate amount of the Company); (4) so long as no Default or Event of Default shall have occurred and be continuing, repurchases Investments previously made by the Company ofor any Guarantor which were treated as a Restricted Payment, or dividends and (z) included in this clause (d) only to a Huntsman Parent Company to permit repurchases by a Huntsman Parent Company of, Common Stock of the extent not included in Consolidated Net Income. In the event that the Company or a Huntsman Parent Company from employees of the Company or any of its Subsidiaries or their authorized representatives upon the death, disability or termination of employment of such employees, Subsidiary makes an Investment in an aggregate amount not to exceed $25 million in any calendar year; (5) the redemption or repurchase of any Common Stock of the Company held by a Restricted Subsidiary of the Company which obtained such Common Stock directly from the Company; (6) distributions to any Huntsman Parent Company in accordance with the Tax Sharing Agreement; (7) payments to any Huntsman Parent Company for legal, audit and other expenses directly relating to the administration of such Huntsman Parent Company not to exceed $10.0 million in any fiscal year; (8) the payment of consideration by a third party to equity holders of the Company; (9) additional Restricted Payments in an aggregate amount not to exceed $225 million since the Designated Date; (10) the payment of dividends or distributions to any Huntsman Parent Company which are contemporaneously applied to pay dividends on common stock of the Huntsman Public Parent at a rate not to exceed $0.40 per share per annum (such amount to be appropriately adjusted to reflect any stock split, reverse stock split, stock dividend, stock issuance or similar transactions made after the Designated Date so that the aggregate amount of dividends payable after such transaction is the same as the amount payable immediately prior to such transaction); (11) payments of dividends on Disqualified Capital Stock issued in accordance with Section 4.12; and (12) if the Consolidated Leverage Ratio of the Company, calculated after giving pro forma effect to any repurchase under this clause (12), is less than 2.5 to 1.0, then the Company may repurchase or dividend to a Huntsman Parent Company to repurchase, up to an aggregate of $250 million of Common Stock of a Huntsman Parent Company. In determining the aggregate amount of Restricted Payments made subsequent to the Designated Date in accordance with clause (iii) of the immediately preceding paragraph, cash amounts expended pursuant to clauses (1), (2), (3)(ii)(A) and (4) shall be included in such calculation and Restricted Payments made pursuant to the other clauses proviso contained in the definition of Investments, and such latter Subsidiary is subsequently designated an Unrestricted Subsidiary, such Investment shall be deemed to be a Restricted Payment made at the time the latter Subsidiary is designated an Unrestricted Subsidiary, and shall be subject to the provisions of this paragraph shall not be so included. Not later than the date of making any Restricted Payment pursuant to clause (iii) of the second preceding paragraph or clause (9) of the immediately preceding paragraph, the Company shall deliver to the Trustee an officers’ certificate stating that such Restricted Payment complies with this Indenture and setting forth in reasonable detail the basis upon which the required calculations were computed, which calculations may be based upon the Company’s quarterly financial statements last provided to the Trustee pursuant to Section 4.094.3(a).
Appears in 1 contract
Samples: Horseshoe Gaming LLC
Limitation on Restricted Payments. The Company shall not, and shall not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, make any Restricted Payment if Payment, unless (i) at the time of such Restricted Payment or and immediately after giving effect theretoto the proposed Restricted Payment, (i) a no Default or an Event of Default shall have occurred and be continuing, or would occur as a consequence thereof, (ii) either the Company is not able would (a) at the time of such Restricted Payment and after giving pro forma effect thereto, have a Consolidated Adjusted Net Worth exceeding $200 million or (b) be permitted to incur at least $1.00 of additional Indebtedness other than Permitted Indebtedness pursuant to the Consolidated Operating Cash Flow Ratio test set forth in compliance with Section 4.129.12, or and (iii) at the aggregate amount time of Restricted Payments including such and immediately after giving effect to the proposed Restricted Payment made after June 30(the value of any such payment if other than cash, 2006, including, the Fair Market Value as determined reasonably and in good faith by the Board board of Managers directors of the Company and evidenced by a Board Resolution), the aggregate amount of non-cash amounts constituting all Restricted Payments (including Restricted Payments permitted by clauses (b), (j), (l) and (m) of the next succeeding paragraph and excluding the other Restricted Payments permitted by such paragraph) declared or made subsequent to the Issue Date shall not exceed the sum of: of (wa) 50% of the cumulative aggregate Consolidated Net Operating Income (or or, if cumulative such aggregate Consolidated Net Operating Income shall be is a lossdeficit, minus 100% of such lossdeficit) of the Company earned for the period (taken as one accounting period) from June 30, 2006 through the last first day of the last full fiscal quarter immediately preceding that begins after the date 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 occurs (the “Reference Date”) (treating such period as a single accounting period); plus (xb) 100% of the aggregate net proceeds, including cash proceeds and the fair market value of property other than cash (as determined in good faith by the board of directors of the Company and evidenced by a Board Resolution), received by the Company since the Issue Date, from any Person other than a Subsidiary of the Company as a result of the issuance of Capital Stock (other than any Disqualified Capital Stock) of the Company including such Capital Stock issued upon conversion of Indebtedness or upon exercise of warrants and any contributions to the capital of the Company (other than Excluded Contributions) received by the Company from any such Person plus (c) to the extent that any Restricted Investment that was made after the Issue Date, is sold for cash or otherwise liquidated or repaid for cash, the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any). For purposes of any calculation pursuant to the preceding sentence which is required to be made within 60 days after the declaration of a dividend by the Company, such dividend shall be deemed to be paid at the date of declaration. The foregoing provisions of this covenant shall not be violated by reason of (a) the payment of any dividends or distributions payable solely in shares of the Company's Capital Stock (other than a Subsidiary of the Company) from the issuance and sale subsequent to June 30, 2006 of Qualified Capital Stock of the Company (other than Specified Venture Disqualified Capital Stock) or debt securities of in options, warrants or other rights to acquire the Company that are, upon issuance, convertible into or exchangeable for Qualified Company's Capital Stock of the Company(other than Disqualified Capital Stock), but only when and to the extent such debt securities are converted into or exchanged for Qualified Capital Stock of the Company; 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 the Company from a holder of the Company’s Capital Stock subsequent to June 30, 2006; plus (z) $400 million. Notwithstanding the foregoing, the provisions set forth in the immediately preceding paragraph shall not prohibit: (1b) the payment of any dividend within 60 days after the date of declaration thereof if, at such date of declaration, such dividend if payment complied with the dividend would have been permitted provisions described above, (c) the payment of cash dividends or the making of loans or advances to Xxxxx USA after October 1, 2002, in an amount sufficient to enable Xxxxx USA to make cash payments of interest or dividends required to be made in respect of the Exchangeable Preferred Stock or the Exchange Debentures in accordance with the terms thereof in effect on the date of declaration; this Indenture, (2d) the acquisition payment of cash dividends or the making of loans or advances in an amount sufficient to enable Xxxxx USA to make payments required to be made in respect of the 10 7/8% Notes in accordance with the terms thereof in effect on the date of this Indenture, (e) the retirement of any shares of the Company's Capital Stock in exchange for, or out of the Companyproceeds of, either (i) solely in exchange for shares of Qualified Capital Stock of the Company or (ii) if no Default or Event of Default shall have occurred and be continuing, through the application of net cash proceeds of a substantially concurrent Equity Offering sale (other than to a Subsidiary of the Company); ) of, other shares of its Capital Stock (3other than Disqualified Capital Stock) or options, warrants or other rights to purchase the Company's Capital Stock (other than Disqualified Capital Stock) and the declaration and payment of dividends on such new Capital Stock in an aggregate amount no greater than the amount of dividends declarable and payable on such retired Capital Stock immediately prior to such retirement, (f) the acquisition or repayment of any Indebtedness of Chevron Payment, (g) the Company that is subordinate or junior in right of payment to AOC Payment, (h) the Notes either Gulf Payments, (i) solely other Restricted Payments in exchange for shares an aggregate amount not to exceed $50 million, (j) the making of Qualified any payment in redemption of Capital Stock of the CompanyCompany or Xxxxx USA or options to purchase such Capital Stock granted to officers or employees of the Company or Xxxxx USA pursuant to any stock option, stock purchase or (ii) if no Default other stock plan approved by the board of directors of the Company or Event Xxxxx USA in connection with the severance or termination of Default shall have occurred and be continuing, through officers or employees not to exceed $8 million per annum or the application payment of net cash proceeds dividends or the making of (A) a substantially concurrent Equity Offering loans or (B) incurrence for cash of Refinancing Indebtednessadvances to Xxxxx USA to permit it to make such payments, (k) the declaration and payment of dividends to holders of any class or series of preferred stock of the Company and its Restricted Subsidiaries issued in accordance with Section 9.12, (l) the case payment of (A) or (B)dividends on the Company's Common Stock, other than to a Subsidiary following the first public offering of the Company)'s or Xxxxx USA's Common Stock after the Issue Date, of up to 6% per annum of the net proceeds received by the Company in such public offering or the payment of funds to Xxxxx USA in amounts necessary to permit Xxxxx USA to make such payments to the extent the proceeds of such offering were contributed to the equity capital of the Company; (4m) so long as no Default or Event of Default shall have occurred and be continuingcontinuing (or would result therefrom), repurchases by the Company ofpayment to Xxxxx USA (in the form of dividends, loans, advances or dividends to a Huntsman Parent Company to permit repurchases by a Huntsman Parent Company of, Common Stock otherwise) of 100% of the Company or a Huntsman Parent Company from employees proceeds of Indebtedness incurred pursuant to clause (xv) of the Company definition of "Permitted Indebtedness" to redeem, repurchase, defease or any of its Subsidiaries otherwise acquire or their authorized representatives upon retire for value the death10 7/8% Notes; provided, disability or termination of employment however, that at the time of such employeesredemption, in an aggregate amount not to exceed $25 million in any calendar year; (5) repurchase, defeasance or other acquisition or retirement for value, the redemption or repurchase of any Common Stock of the Company held by a Restricted Subsidiary of the Company which obtained such Common Stock directly from the Company; (6) distributions to any Huntsman Parent Company in accordance with the Tax Sharing Agreement; (7) payments to any Huntsman Parent Company for legal, audit and other expenses directly relating to the administration of such Huntsman Parent Company not to exceed $10.0 million in any fiscal year; (8) the payment of consideration by a third party to equity holders Consolidated Operating Cash Flow Ratio of the Company, after giving effect to the incurrence of Indebtedness in connection therewith, would be greater than 1.75 to 1.0; (9) additional Restricted Payments in an aggregate amount not to exceed $225 million since the Designated Date; (10n) the payment of dividends or distributions the making of loans or advances by the Company to any Huntsman Parent Company which are contemporaneously applied to pay dividends on common stock of the Huntsman Public Parent at a rate Xxxxx USA in an amount not to exceed $0.40 per share per annum (such amount 2 million in any fiscal year for costs and expenses incurred by Xxxxx USA in its capacity as a holding company or for services rendered to be appropriately adjusted to reflect any stock split, reverse stock split, stock dividend, stock issuance or similar transactions made after the Designated Date so that the aggregate amount of dividends payable after such transaction is the same as the amount payable immediately prior to such transaction)Company; (11o) payments Restricted Investments not to exceed at any one time an aggregate of dividends on Disqualified Capital Stock issued in accordance with Section 4.12$75 million; and (12p) if the Consolidated Leverage Ratio Restricted Investments made with Excluded Contributions. The board of directors of the CompanyCompany may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default or Event of Default; provided that, calculated in no event shall the business currently operated by the Company or Xxxxx USA be transferred to or held by an Unrestricted Subsidiary, unless after giving pro forma effect to any repurchase under this clause (12), is less than 2.5 to 1.0, then such transfer the Company may repurchase or dividend to a Huntsman Parent Company to repurchase, up to could have incurred an aggregate additional $1.00 of $250 million of Common Stock of a Huntsman Parent Company. In determining the aggregate amount of Restricted Payments made subsequent to the Designated Date in accordance with clause (iii) of the immediately preceding paragraph, cash amounts expended pursuant to clauses (1), (2), (3)(ii)(A) and (4) shall be included in such calculation and Restricted Payments made Indebtedness pursuant to the other clauses Consolidated Operating Cash Flow Ratio test set forth in Section 9.12. For purposes of making such determination, all outstanding Investments by the Company and its Restricted Subsidiaries (except to the extent repaid in cash) in the Subsidiary so designated 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 paragraph Section 9.09. All such outstanding Investments shall not be so included. Not later than the date of making any Restricted Payment pursuant deemed to clause (iii) of the second preceding paragraph or clause (9) of the immediately preceding paragraph, the Company shall deliver constitute Investments in an amount equal to the Trustee an officers’ certificate stating that greatest of (x) the net book value of such Investments at the time of such designation, (y) the fair market value of such Investments at the time of such designation, and (z) the original fair market value of such Investments at the time they were made. Such designation shall only be permitted if such Restricted Payment complies with this Indenture would be permitted at such time and setting forth in reasonable detail if such Restricted Subsidiary otherwise meets the basis upon which the required calculations were computed, which calculations may be based upon the Company’s quarterly financial statements last provided to the Trustee pursuant to Section 4.09definition of an Unrestricted Subsidiary.
Appears in 1 contract
Samples: Clark Refining & Marketing Inc
Limitation on Restricted Payments. (a) The Company shall not, and shall not cause or permit any of its Restricted Subsidiaries or any Eligible Joint Venture to, directly or indirectly, make any Restricted Payment if unless at the time of such Restricted Payment or immediately and after giving effect theretothereto (a) no Event of Default and no event that, (i) a Default after the giving of notice or lapse of time or both, would become an Event of Default shall have Default, has occurred and be is continuing, (iib) the Company is not able to incur could Incur at least $1.00 1 of additional Indebtedness other than Permitted Indebtedness in compliance with Debt under Section 4.12, or 1008 and (iiic) the aggregate amount of all Restricted Payments including such proposed made by the Company, its Restricted Payment made after June 30Subsidiaries and the Eligible Joint Ventures (the amount so made, 2006if other than in cash, including, the Fair Market Value as to be determined reasonably and in good faith by the Chief Financial Officer, as evidenced by an Officers' Certificate, or, if more than $30 million, by the Board of Managers of the Company of non-cash amounts constituting Restricted Payments shall exceed Directors, as evidenced by a Board resolution) after March 24, 1994, is less than the sum of: (wwithout duplication) of (i) 50% of the cumulative Adjusted Consolidated Net Income (or if cumulative Consolidated Net Income shall be a loss, minus 100% of such loss) of the Company earned from June 30for the period (taken as one accounting period) beginning on the first day of the first fiscal quarter that begins after March 24, 2006 through 1994 and ending on the last day of the last full fiscal quarter immediately preceding prior to the date the Restricted Payment occurs (the “Reference Date”) (treating of such calculation, provided that if throughout any fiscal quarter within such period as the Ratings Categories applicable to the Securities are rated Investment Grade by S&P and Xxxxx'x (or if both do not make a single accounting periodrating of the Securities publicly available, an equivalent Rating Category is made publicly available by another Rating Agency); , then 100% (instead of 50%) of the Adjusted Consolidated Net Income (if more than zero) with respect to such fiscal quarter shall be included pursuant to this clause (i), and provided further that if Adjusted Consolidated Net Income for such period is less than zero, then minus 100% of the amount of such net loss, plus (xii) 100% of the aggregate net cash proceeds received by the Company from any Person and after March 24, 1994 from (other than a Subsidiary of the CompanyA) from the issuance and sale subsequent (other than to June 30a Restricted Subsidiary or an Eligible Joint Venture) of its Capital Stock (excluding Redeemable Stock, 2006 but including Capital Stock other than Redeemable Stock issued upon conversion of, or in exchange for Redeemable Stock or securities other than its Capital Stock), (B) the issuance and sale or the exercise of Qualified warrants, options and rights to purchase its Capital Stock (other than Redeemable Stock) and (C) the issuance and sale of convertible Debt upon the conversion of such convertible Debt into Capital Stock (other than Redeemable Stock), but excluding the net proceeds from the issuance, sale, exchange, conversion or other disposition of its Capital Stock (I) that is convertible (whether at the option of the Company or the holder thereof or upon the happening of any event) into (x) any security other than its Capital Stock or (y) its Redeemable Stock or (II) that is Capital Stock referred to in clauses (ii) and (iii) of the definition of "Permitted Payment", plus (iii) the net reduction in Investments of the types specified in clauses (iv) and (v) of the definition of "Restricted Payment" that result from payments of interest on Debt, dividends, or repayment of loans or advances, the proceeds of the sale or disposition of the Investment or other return of the amount of the original Investment to the Company, the Restricted Subsidiary or the Eligible Joint Venture that made the original Investment from the Person in which such Investment was made, provided that (x) the aggregate amount of such payments shall not exceed the amount of the original Investment by the Company or such Restricted Subsidiary that reduced the amount available pursuant to this clause (c) for making Restricted Payments and (y) such payments may be added pursuant to this clause (iii) only to the extent such payments are not included in the calculation of Adjusted Consolidated Net Income, provided further that if Investments of the types specified in clauses (iv) and (v) of the Definition of "Restricted Payment" have been made in any Person and such Person thereafter becomes a Restricted Subsidiary or an Eligible Joint Venture, then the aggregate amount of such Investment (to the extent that they have reduced the amount available pursuant to this clause (c) for making Restricted Payments), net of the amounts previously added pursuant to this clause (iii), may be added to the amount available for making Restricted Payments, plus (iv) an amount equal to the principal amount of Debt of the Company extinguished in connection with the conversion into Common Stock of the Company (other than Specified Venture Capital Stock) or debt securities of the Company that are, upon issuance, convertible into or exchangeable for Qualified Capital Stock of the Company, but only when 's 5% Convertible Subordinated Debentures due 2000 and to the extent such debt securities are converted into or exchanged for Qualified Capital Stock of the Company; plus (y) without duplication of any amounts included in its 9.5% Convertible Subordinated Debenture due 2003. The foregoing clause (iii)(xc) above, 100% of the aggregate net cash proceeds of any equity contribution received by the Company from a holder of the Company’s Capital Stock subsequent to June 30, 2006; plus (z) $400 million. Notwithstanding the foregoing, the provisions set forth in the immediately preceding paragraph shall not prohibit: (1) prevent the payment of any dividend within 60 days after the date of its declaration of if such dividend if the dividend would could have been permitted made on the date of declaration; (2) the acquisition of any shares of Capital Stock its declaration without violation of the Company, either (i) solely in exchange for shares of Qualified Capital Stock of the Company or (ii) if no Default or Event of Default shall have occurred and be continuing, through the application of net cash proceeds of a substantially concurrent Equity Offering (other than to a Subsidiary of the Company); (3) the acquisition or repayment of any Indebtedness of the Company that is subordinate or junior in right of payment to the Notes either (i) solely in exchange for shares of Qualified Capital Stock of the Company, or (ii) if no Default or Event of Default shall have occurred and be continuing, through the application of net cash proceeds of (A) a substantially concurrent Equity Offering or (B) incurrence for cash of Refinancing Indebtedness, (in the case of (A) or (B), other than to a Subsidiary of the Company); (4) so long as no Default or Event of Default shall have occurred and be continuing, repurchases by the Company of, or dividends to a Huntsman Parent Company to permit repurchases by a Huntsman Parent Company of, Common Stock of the Company or a Huntsman Parent Company from employees of the Company or any of its Subsidiaries or their authorized representatives upon the death, disability or termination of employment of such employees, in an aggregate amount not to exceed $25 million in any calendar year; (5) the redemption or repurchase of any Common Stock of the Company held by a Restricted Subsidiary of the Company which obtained such Common Stock directly from the Company; (6) distributions to any Huntsman Parent Company in accordance with the Tax Sharing Agreement; (7) payments to any Huntsman Parent Company for legal, audit and other expenses directly relating to the administration of such Huntsman Parent Company not to exceed $10.0 million in any fiscal year; (8) the payment of consideration by a third party to equity holders of the Company; (9) additional Restricted Payments in an aggregate amount not to exceed $225 million since the Designated Date; (10) the payment of dividends or distributions to any Huntsman Parent Company which are contemporaneously applied to pay dividends on common stock of the Huntsman Public Parent at a rate not to exceed $0.40 per share per annum (such amount to be appropriately adjusted to reflect any stock split, reverse stock split, stock dividend, stock issuance or similar transactions made after the Designated Date so that the aggregate amount of dividends payable after such transaction is the same as the amount payable immediately prior to such transaction); (11) payments of dividends on Disqualified Capital Stock issued in accordance with Section 4.12; and (12) if the Consolidated Leverage Ratio of the Company, calculated after giving pro forma effect to any repurchase under this clause (12), is less than 2.5 to 1.0, then the Company may repurchase or dividend to a Huntsman Parent Company to repurchase, up to an aggregate of $250 million of Common Stock of a Huntsman Parent Company. In determining the aggregate amount of Restricted Payments made subsequent to the Designated Date in accordance with clause (iii) of the immediately preceding paragraph, cash amounts expended pursuant to clauses (1), (2), (3)(ii)(A) and (4) shall be included in such calculation and Restricted Payments made pursuant to the other clauses provisions of this paragraph shall not be so included. Not later than the date of making any Restricted Payment pursuant to clause (iii) of the second preceding paragraph or clause (9) of the immediately preceding paragraph, the Company shall deliver to the Trustee an officers’ certificate stating that such Restricted Payment complies with this Indenture and setting forth in reasonable detail the basis upon which the required calculations were computed, which calculations may be based upon the Company’s quarterly financial statements last provided to the Trustee pursuant to Section 4.091010(a).
Appears in 1 contract
Samples: Calenergy Co Inc
Limitation on Restricted Payments. The Company and the Guarantors shall not, and shall not cause or permit any of its Restricted their Subsidiaries to, directly or indirectly, make any Restricted Payment if at the time of if, after giving effect to such Restricted Payment or immediately after giving effect theretoon a PRO FORMA basis, (i1) a Default or an Event of Default shall have occurred and be continuing, (ii2) the Company is not able permitted to incur at least $1.00 of additional Indebtedness other than Permitted Indebtedness pursuant to the Debt Incurrence Ratio in compliance with Section 4.12, 4.11 or (iii3) the aggregate amount of all Restricted Payments made by the Company and its Subsidiaries, including after giving effect to such proposed Restricted Payment made Payment, from and after June 30the Issue Date, 2006would exceed, includingwithout duplication, the Fair Market Value as determined reasonably and in good faith by the Board sum of Managers of the Company of non-cash amounts constituting Restricted Payments shall exceed the sum of: (wa) 50% of the cumulative aggregate Consolidated Net Income of the Company for the period (or if cumulative taken as one accounting period), commencing on the first day of the first full fiscal quarter commencing after the Issue Date, to and including the last day of the fiscal quarter ended immediately prior to the date of each such calculation (or, in the event Consolidated Net Income shall be for such period is a lossdeficit, then minus 100% of such loss) of the Company earned from June 30deficit), 2006 through the last day of the last full fiscal quarter immediately preceding the date the Restricted Payment occurs (the “Reference Date”) (treating such period as a single accounting period); plus (xb) 100% of the aggregate net cash proceeds received by the Company from any Person (other than a Subsidiary of the Company) from the issuance and sale subsequent to June 30, 2006 of Qualified Capital Stock of the Company (other than Specified Venture Capital Stock) or debt securities of the Company that are, upon issuance, convertible into or exchangeable for Qualified Capital Stock of the Company, but only when and to the extent such debt securities are converted into or exchanged for Qualified Capital Stock of the Company; plus (y) without duplication of any amounts included in clause (iii)(x) above, 100% of the aggregate net cash proceeds of any equity contribution Net Cash Proceeds received by the Company from a holder Capital Contribution or the sale of its Qualified Capital Stock (other than (i) to a Subsidiary of the Company’s , (ii) to the extent applied in connection with a Qualified Exchange and (iii) to the extent credited in (v) and (w) in the following paragraph), after the Issue Date, plus (c) other than amounts credited pursuant to clause (v) of the next following paragraph, the net amount of any Restricted Investments (not to exceed the original amount of such Investment) made after the Issue Date that are returned to the Company or the Guarantor that made such prior Investment, without restriction in cash on or prior to the date of any such calculation. The foregoing clauses (2) and (3) of the immediately preceding paragraph, however, will not prohibit (v) Restricted Investments in a Related Business, PROVIDED, that, after giving PRO FORMA effect to such Investment, the aggregate amount of all such Investments made on or after the Issue Date that are outstanding (after giving effect to any such Investments that are returned to the Company or the Subsidiary Guarantor that made such prior Investment, without restriction, in cash on or prior to the date of any such calculation) at any time does not exceed $4.0 million, (w) repurchases of Capital Stock from employees of the Company or its Subsidiaries upon the death, disability or termination of employment in an aggregate amount to all employees not to exceed $300,000 in any fiscal year or $1.5 million in the aggregate on and after the Issue Date net of the Net Cash Proceeds received by the Company from subsequent reissuances of such Qualified Capital Stock to June 30new employees that are not Excluded Persons, 2006; plus (z) $400 million. Notwithstanding the foregoing, and the provisions set forth in of the immediately preceding paragraph shall will not prohibit: , (1x) a Qualified Exchange, (y) the payment of any dividend on Qualified Capital Stock within 60 days after the date of its declaration of if such dividend if the dividend would could have been permitted made on the date of declaration; such declaration in compliance with the foregoing provisions or (2z) the acquisition Permitted Payments to Parent. The full amount of any shares of Capital Stock Restricted Payment made pursuant to the foregoing clauses (v), (w), (y) and (z) (but not pursuant to clause (x)) of the Companyimmediately preceding sentence, either (i) solely however, will be deducted in exchange for shares of Qualified Capital Stock the calculation of the aggregate amount of Restricted Payments available to be made referred to in clause (3) of the immediately preceding paragraph. In addition, the Company and the Guarantors will not, and will not permit any of their Subsidiaries to, directly or indirectly, make any Management Fee Payment or similar payment to Affiliates (iiother than Subsidiaries) if no other than Permitted Payments to Parent if, after giving effect to such Management Fee Payments or similar payments, on a PRO FORMA basis after giving effect to such payment, a Default or an Event of Default shall have occurred and be continuing. For purposes of this covenant, through the application amount of net cash proceeds of a substantially concurrent Equity Offering (any Restricted Payment, if other than to a Subsidiary in cash, shall be the fair market value thereof, as determined in the good faith reasonable judgment of the Board of Directors of the Company); (3) the acquisition or repayment of any Indebtedness of the Company that is subordinate or junior in right of payment to the Notes either (i) solely in exchange for shares of Qualified Capital Stock of the Company. Additionally, or (ii) if no Default or Event of Default shall have occurred and be continuing, through the application of net cash proceeds of (A) a substantially concurrent Equity Offering or (B) incurrence for cash of Refinancing Indebtedness, (in the case of (A) or (B), other than to a Subsidiary of the Company); (4) so long as no Default or Event of Default shall have occurred and be continuing, repurchases by the Company of, or dividends to a Huntsman Parent Company to permit repurchases by a Huntsman Parent Company of, Common Stock of the Company or a Huntsman Parent Company from employees of the Company or any of its Subsidiaries or their authorized representatives upon the death, disability or termination of employment of such employees, in an aggregate amount not to exceed $25 million in any calendar year; (5) the redemption or repurchase of any Common Stock of the Company held by a Restricted Subsidiary of the Company which obtained such Common Stock directly from the Company; (6) distributions to any Huntsman Parent Company in accordance with the Tax Sharing Agreement; (7) payments to any Huntsman Parent Company for legal, audit and other expenses directly relating to the administration of such Huntsman Parent Company not to exceed $10.0 million in any fiscal year; (8) the payment of consideration by a third party to equity holders of the Company; (9) additional Restricted Payments in an aggregate amount not to exceed $225 million since the Designated Date; (10) the payment of dividends or distributions to any Huntsman Parent Company which are contemporaneously applied to pay dividends on common stock of the Huntsman Public Parent at a rate not to exceed $0.40 per share per annum (such amount to be appropriately adjusted to reflect any stock split, reverse stock split, stock dividend, stock issuance or similar transactions made after the Designated Date so that the aggregate amount of dividends payable after such transaction is the same as the amount payable immediately prior to such transaction); (11) payments of dividends on Disqualified Capital Stock issued in accordance with Section 4.12; and (12) if the Consolidated Leverage Ratio of the Company, calculated after giving pro forma effect to any repurchase under this clause (12), is less than 2.5 to 1.0, then the Company may repurchase or dividend to a Huntsman Parent Company to repurchase, up to an aggregate of $250 million of Common Stock of a Huntsman Parent Company. In determining the aggregate amount of Restricted Payments made subsequent to the Designated Date in accordance with clause (iii) of the immediately preceding paragraph, cash amounts expended pursuant to clauses (1), (2), (3)(ii)(A) and (4) shall be included in such calculation and Restricted Payments made pursuant to the other clauses of this paragraph shall not be so included. Not later than the date of making any each Restricted Payment pursuant to clause (iii) of the second preceding paragraph or clause (9) of the immediately preceding paragraphPayment, the Company shall deliver an Officers' Certificate to the Trustee an officers’ certificate describing in reasonable detail the nature of such Restricted Payment, stating the amount of such Restricted Payment, stating in reasonable detail the provisions of this Indenture pursuant to which such Restricted Payment was made and certifying that such Restricted Payment complies was made in compliance with the terms of this Indenture and setting forth in reasonable detail the basis upon which the required calculations were computed, which calculations may be based upon the Company’s quarterly financial statements last provided to the Trustee pursuant to Section 4.09Indenture.
Appears in 1 contract
Limitation on Restricted Payments. The Company shall notNo Obligor will, and shall not cause or nor will it permit any of its Restricted Subsidiaries to, directly or indirectly, declare, make or pay, or agree to declare, make or pay or incur any liability to make or pay, or cause or permit to be declared, made or paid, or set aside any sum or property to declare, make or pay any Restricted Payment if at the time of such Restricted Payment or immediately after giving effect theretoPayment, (i) a Default or an Event of Default shall have occurred and be continuing, (ii) the Company is not able to incur at least $1.00 of additional Indebtedness other than Permitted Indebtedness in compliance with Section 4.12, or (iiia) the aggregate amount of Restricted Payments including such proposed Restricted Payment made after June 30, 2006, including, the Fair Market Value as determined reasonably and in good faith by the Board of Managers of the Company of non-cash amounts constituting Restricted Payments shall exceed the sum of: (w) 50% of the cumulative Consolidated Net Income dividends (or if cumulative Consolidated Net Income shall be a lossdistributions, minus 100% of such loss) of the Company earned from June 30, 2006 through the last day of the last full fiscal quarter immediately preceding 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 the Company from any Person (other than a Subsidiary of the Company) from the issuance and sale subsequent to June 30, 2006 of Qualified Capital Stock of the Company (other than Specified Venture Capital Stock) or debt securities of the Company that are, upon issuance, convertible into or exchangeable for Qualified Capital Stock of the Company, but only when and to the extent such debt securities are converted into or exchanged for Qualified Capital Stock of the Company; 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 the Company from a holder of the Company’s Capital Stock subsequent to June 30, 2006; plus (z) $400 million. Notwithstanding the foregoing, the provisions set forth in the immediately preceding paragraph shall 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) the acquisition of any shares of Capital Stock of the Company, either (i) solely in exchange for shares of Qualified Capital Stock of the Company or (ii) if no Default or Event of Default shall have occurred and be continuing, through the application of net cash proceeds of a substantially concurrent Equity Offering (other than to a Subsidiary of the Company); (3) the acquisition or repayment of any Indebtedness of the Company that is subordinate or junior in right of payment to the Notes either (i) solely in exchange for shares of Qualified Capital Stock of the Company, or (ii) if no Default or Event of Default shall have occurred and be continuing, through the application of net cash proceeds of (A) a substantially concurrent Equity Offering or (B) incurrence for cash of Refinancing Indebtedness, (in the case of (Apartnerships) or (B), other than to a Subsidiary from Subsidiaries of the Company); Parent to the Parent, (4b) so long as no Default acquisitions or Event of Default shall have occurred and be continuing, repurchases purchases by the Company of, or dividends to a Huntsman Parent Company to permit repurchases by a Huntsman Parent Company of, Common Stock of the Company or a Huntsman Parent Company from employees of the Company or any of its Subsidiaries of capital stock of any Subsidiariy or their authorized representatives upon capital contributions made by the deathParent or any of its Subsidiaries to a Subsidiary, disability (c) Cash Stock Buybacks, which shall be limited to $55,000,000 in the aggregate (inclusive of Cash Stock Buybacks effected on or termination after February 24, 2014) (provided that, the Issuer shall have the option, exercisable by notice to the holders of employment Shelf Notes from time to time made within 60 days after a Cash Stock Buyback, to exclude a Cash Stock Buyback from such lifetime dollar limitation) and (d) to the extent not covered by the foregoing clauses (a), (b) and (c), any other Restricted Payments made by the Parent; provided that the Parent may make Restricted Payments in the form of such employees, in an aggregate amount not to exceed $25 million a cash stock dividend and/or Cash Stock Buybacks in any calendar year; fiscal year (5) but not more than one Restricted Payment in the redemption or repurchase form of any Common Stock of the Company held by a Restricted Subsidiary of the Company which obtained such Common Stock directly from the Company; (6) distributions cash stock dividend to any Huntsman Parent Company in accordance with the Tax Sharing Agreement; (7) payments to any Huntsman Parent Company for legal, audit and other expenses directly relating to the administration of such Huntsman Parent Company not to exceed $10.0 million occur in any fiscal year) and may make such Restricted Payments only if, after giving effect to such Restricted Payments, its Excess Liquidity determined on a pro forma basis would not be less than $20,000,000; (8) the payment of consideration by a third party to equity holders and provided further, that each of the Company; (9) additional Restricted Payments in an aggregate amount not to exceed $225 million since the Designated Date; (10) the payment of dividends or distributions to any Huntsman Parent Company which are contemporaneously applied to pay dividends on common stock of the Huntsman Public Parent at a rate not to exceed $0.40 per share per annum (such amount to be appropriately adjusted to reflect any stock split, reverse stock split, stock dividend, stock issuance or similar transactions made following conditions is also satisfied immediately before and after the Designated Date so that the aggregate amount of dividends payable after such transaction is the same as the amount payable immediately prior giving effect to such transaction); (11) payments of dividends on Disqualified Capital Stock issued in accordance with Section 4.12; and (12) if the Consolidated Leverage Ratio of the Company, calculated after giving pro forma effect to any repurchase under this clause (12), is less than 2.5 to 1.0, then the Company may repurchase or dividend to a Huntsman Parent Company to repurchase, up to an aggregate of $250 million of Common Stock of a Huntsman Parent Company. In determining the aggregate amount of Restricted Payments made subsequent to the Designated Date in accordance with clause (iii) of the immediately preceding paragraph, cash amounts expended pursuant to clauses (1), (2), (3)(ii)(A) and (4) shall be included in such calculation and Restricted Payments made pursuant to the other clauses of this paragraph shall not be so included. Not later than the date of making any Restricted Payment pursuant to clause (iii) of the second preceding paragraph or clause (9) of the immediately preceding paragraph, the Company shall deliver to the Trustee an officers’ certificate stating that such Restricted Payment complies with this Indenture and setting forth in reasonable detail the basis upon which the required calculations were computed, which calculations may be based upon the Company’s quarterly financial statements last provided to the Trustee pursuant to Section 4.09.Payment:
Appears in 1 contract
Samples: Note Purchase and Private Shelf Agreement (Drew Industries Inc)
Limitation on Restricted Payments. The Company shall Corporation will not, and shall will not cause or permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, make any Restricted Payment if (including any Restricted Investment), unless at the time of such Restricted Payment or and immediately after giving effect thereto, (i) a Default or an Event of Default shall have occurred and be continuing, (ii) to the Company is not able to incur at least $1.00 of additional Indebtedness other than Permitted Indebtedness in compliance with Section 4.12, or (iii) the aggregate amount of Restricted Payments including such proposed Restricted Payment made after June 30(with the value of any such Restricted Payment, 2006if other than cash, including, the Fair Market Value as to be determined reasonably and in good faith by the Board of Managers Directors of the Company of non-cash amounts constituting Restricted Payments shall exceed the sum of: (w) 50% of the cumulative Consolidated Net Income (or if cumulative Consolidated Net Income shall be a lossCorporation), minus 100% of such loss) of the Company earned from June 30, 2006 through the last day of the last full fiscal quarter immediately preceding 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 the Company from any Person (other than a Subsidiary of the Company) from the issuance and sale subsequent to June 30, 2006 of Qualified Capital Stock of the Company (other than Specified Venture Capital Stock) or debt securities of the Company that are, upon issuance, convertible into or exchangeable for Qualified Capital Stock of the Company, but only when and to the extent such debt securities are converted into or exchanged for Qualified Capital Stock of the Company; 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 the Company from a holder of the Company’s Capital Stock subsequent to June 30, 2006; plus (z) $400 million. Notwithstanding the foregoing, the provisions set forth in the immediately preceding paragraph shall 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) the acquisition of any shares of Capital Stock of the Company, either (i) solely in exchange for shares of Qualified Capital Stock of the Company or (ii) if no Default or Event of Default shall have occurred and be continuingcontinuing or would occur as a consequence thereof, through (ii) the application Corporation could Incur at least $1.00 of net cash proceeds additional Indebtedness pursuant to the first paragraph under Section 5.03 and (iii) the aggregate amount of all Restricted Payments made after the Issue Date shall not exceed the sum of (a) an amount equal to 50% of the Corporation's aggregate cumulative Consolidated Net Income accrued on a substantially concurrent Equity Offering cumulative basis during the period (treated as one accounting period) beginning on January 1, 1998 and ending on the last day of the fiscal quarter of the Corporation immediately preceding the date of such proposed Restricted Payment (or, if such aggregate cumulative Consolidated Net Income for such period shall be a deficit, minus 100% of such deficit), plus (b) (x) the aggregate amount of all Net Proceeds received since the Issue Date by the Corporation from the issuance and sale (other than to a Subsidiary Restricted Subsidiary) of the CompanyCapital Stock (other than Disqualified Stock); , and (3y) the acquisition or repayment of any Indebtedness of the Company that is subordinate or junior in right of payment an amount equal to the Notes either amount (ias shown on the Corporation's most recent consolidated balance sheet, prepared in accordance with GAAP) solely in exchange of all Indebtedness or Disqualified Stock that, after the Issue Date, is converted into or exchanged for shares of Qualified Capital Stock of the CompanyCorporation (other than Disqualified Stock) (less the amount of any cash or property distributed by the Corporation upon such conversion or exchange), plus (c) the amount of the net reduction in Investments by the Corporation or its Restricted Subsidiaries in Unrestricted Subsidiaries resulting from (iix) if the payment of dividends or the repayment in cash of the principal of loans or the net proceeds from the sale of the Capital Stock or assets of such Unrestricted Subsidiaries or other cash return on such Investment, in each case to the extent received by the Corporation or any Restricted Subsidiary of the Corporation, (y) the release or extinguishment of any guarantee of Indebtedness of any Unrestricted Subsidiary, and (z) the redesignation of Unrestricted Subsidiaries as Restricted Subsidiaries of the Corporation (valued as provided in the definition of "Investment"), such aggregate amount of the net reduction in Investments not to exceed the amount of Restricted Investments previously made by the Corporation or any Restricted Subsidiary of the Corporation in such Unrestricted Subsidiaries, which amount was included in the calculation of the amount of Restricted Payments. For purposes of the foregoing clause (c), the Corporation shall be deemed to have made a Restricted Investment under the Indenture in an amount equal to any cash contribution made or subscribed for by the Corporation on or immediately prior to the Issue Date to one or more Unrestricted Subsidiaries. In addition, so long as there is no Default or Event of Default shall have occurred and be continuing, through the application of net cash proceeds of (A) a substantially concurrent Equity Offering or (B) incurrence for cash of Refinancing Indebtedness, (following payments and other actions shall be expressly permitted notwithstanding anything contained in the case of covenant described above (A) or (B)collectively, other than to a Subsidiary of the Company); (4) so long as no Default or Event of Default shall have occurred and be continuing, repurchases by the Company of, or dividends to a Huntsman Parent Company to permit repurchases by a Huntsman Parent Company of, Common Stock of the Company or a Huntsman Parent Company from employees of the Company or any of its Subsidiaries or their authorized representatives upon the death, disability or termination of employment of such employees, in an aggregate amount not to exceed $25 million in any calendar year; (5) the redemption or repurchase of any Common Stock of the Company held by a Restricted Subsidiary of the Company which obtained such Common Stock directly from the Company; (6) distributions to any Huntsman Parent Company in accordance with the Tax Sharing Agreement; (7) payments to any Huntsman Parent Company for legal, audit and other expenses directly relating to the administration of such Huntsman Parent Company not to exceed $10.0 million in any fiscal year; (8) the payment of consideration by a third party to equity holders of the Company; (9) additional Restricted Payments in an aggregate amount not to exceed $225 million since the Designated Date; (10) the payment of dividends or distributions to any Huntsman Parent Company which are contemporaneously applied to pay dividends on common stock of the Huntsman Public Parent at a rate not to exceed $0.40 per share per annum (such amount to be appropriately adjusted to reflect any stock split, reverse stock split, stock dividend, stock issuance or similar transactions made after the Designated Date so that the aggregate amount of dividends payable after such transaction is the same as the amount payable immediately prior to such transaction); (11) payments of dividends on Disqualified Capital Stock issued in accordance with Section 4.12; and (12) if the Consolidated Leverage Ratio of the Company, calculated after giving pro forma effect to any repurchase under this clause (12), is less than 2.5 to 1.0, then the Company may repurchase or dividend to a Huntsman Parent Company to repurchase, up to an aggregate of $250 million of Common Stock of a Huntsman Parent Company. In determining the aggregate amount of Restricted Payments made subsequent to the Designated Date in accordance with clause (iii) of the immediately preceding paragraph, cash amounts expended pursuant to clauses (1), (2), (3)(ii)(A) and (4) shall be included in such calculation and Restricted Payments made pursuant to the other clauses of this paragraph shall not be so included. Not later than the date of making any Restricted Payment pursuant to clause (iii) of the second preceding paragraph or clause (9) of the immediately preceding paragraph, the Company shall deliver to the Trustee an officers’ certificate stating that such Restricted Payment complies with this Indenture and setting forth in reasonable detail the basis upon which the required calculations were computed, which calculations may be based upon the Company’s quarterly financial statements last provided to the Trustee pursuant to Section 4.09."Permitted Payments"):
Appears in 1 contract
Limitation on Restricted Payments. The Company and the Subsidiary Guarantors shall not, and shall not cause or permit any of its Restricted their Subsidiaries to, directly or indirectly, make any Restricted Payment if at the time of if, after giving effect to such Restricted Payment or immediately after giving effect theretoon a pro forma basis, (i1) a Default or an Event of Default shall have occurred and be continuing, (ii2) the Company is not able permitted to incur at least $1.00 of additional Indebtedness other than Permitted Indebtedness pursuant to the Debt Incurrence Ratio in compliance with Section 4.12, 4.11 or (iii3) the aggregate amount of all Restricted Payments made by the Company and its Subsidiaries, including after giving effect to such proposed Restricted Payment made Payment, from and after June 30the Issue Date, 2006, including, the Fair Market Value as determined reasonably and in good faith by the Board of Managers of the Company of non-cash amounts constituting Restricted Payments shall would exceed the sum of: of (wa) 50% of the cumulative aggregate Consolidated Net Income of the Company for the period (or if cumulative taken as one accounting period), commencing on the first day after the Issue Date, to and including the last day 50 of the fiscal quarter ended immediately prior to the date of each such calculation (or, in the event Consolidated Net Income shall be for such period is a lossdeficit, then minus 100% of such loss) of the Company earned from June 30deficit), 2006 through the last day of the last full fiscal quarter immediately preceding the date the Restricted Payment occurs (the “Reference Date”) (treating such period as a single accounting period); plus (xb) 100% of the aggregate net cash proceeds Net Cash Proceeds received by the Company as a Capital Contribution or from any Person the sale of the Company's Qualified Capital Stock (other than a Subsidiary of the Company) from the issuance and sale subsequent to June 30, 2006 of Qualified Capital Stock of the Company (other than Specified Venture Capital Stock) or debt securities of the Company that are, upon issuance, convertible into or exchangeable for Qualified Capital Stock of the Company, but only when and to the extent such debt securities are converted into or exchanged for Qualified Capital Stock of the Company; 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 the Company from a holder of the Company’s Capital Stock subsequent to June 30, 2006; plus (z) $400 million. Notwithstanding the foregoing, the provisions set forth in the immediately preceding paragraph shall 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) the acquisition of any shares of Capital Stock of the Company, either each case (i) solely in exchange for shares of Qualified Capital Stock of the Company or (ii) if no Default or Event of Default shall have occurred and be continuing, through the application of net cash proceeds of a substantially concurrent Equity Offering (other than to a Subsidiary of the Company); (3) the acquisition or repayment of any Indebtedness of the Company that is subordinate or junior in right of payment to the Notes either (i) solely in exchange for shares of Qualified Capital Stock of the Company, or (ii) if no Default or Event of Default shall have occurred and be continuing, through to the application of net cash proceeds of (A) extent applied in connection with a substantially concurrent Equity Offering or (B) incurrence for cash of Refinancing IndebtednessQualified Exchange, (in iii) to the case of extent applied to repurchase Capital Stock pursuant to clause (Ag) or (B), other than to a Subsidiary of the Company); definition of Permitted Payments and (4iv) so long as no Default or Event of Default shall have occurred and be continuing, repurchases to the extent received by the Company of, or dividends to a Huntsman Parent Company to permit repurchases by a Huntsman Parent Company of, Common Stock of the Company or a Huntsman Parent Company from employees of the Company or any of its Subsidiaries or their authorized representatives upon the death, disability or termination of employment of such employees, in an aggregate amount not to exceed $25 million in any calendar year; (5) the redemption or repurchase of any Common Stock of the Company held by a Restricted Subsidiary of the Company which obtained such Common Stock directly from the Company; (6) distributions to any Huntsman Parent Company in accordance with the Tax Sharing Agreement; (7) payments to any Huntsman Parent Company for legal, audit and other expenses directly relating to the administration of such Huntsman Parent Company not to exceed $10.0 million in any fiscal year; (8) the payment of consideration by a third party to equity holders of the Company; (9) additional Restricted Payments in an aggregate amount not to exceed $225 million since the Designated Date; (10) the payment of dividends or distributions to any Huntsman Parent Company which are contemporaneously applied to pay dividends on common stock of the Huntsman Public Parent at a rate not to exceed $0.40 per share per annum (such amount to be appropriately adjusted to reflect any stock split, reverse stock split, stock dividend, stock issuance or similar transactions made after the Designated Date so that the aggregate amount of dividends payable after such transaction is the same as the amount payable immediately prior to such transaction); (11) payments of dividends on Disqualified Capital Stock issued in accordance with Section 4.12; and (12) if the Consolidated Leverage Ratio of the Company, calculated after giving pro forma effect to any repurchase under this clause (12), is less than 2.5 to 1.0, then the Company may repurchase or dividend to a Huntsman Parent Company to repurchase, up to an aggregate of $250 million of Common Stock of a Huntsman Parent Company. In determining the aggregate amount of Restricted Payments made subsequent to the Designated Date in accordance with clause (iii) of the immediately preceding paragraph, cash amounts expended pursuant to clauses (1), (2), (3)(ii)(A) and (4) shall be included in such calculation and Restricted Payments made pursuant to the other clauses of this paragraph shall not be so included. Not later than the date of making any Restricted Payment Guarantor pursuant to clause (iiic) or (d) of the second preceding paragraph or clause (9definition of Permitted Payments) of after the immediately preceding paragraph, the Company shall deliver to the Trustee an officers’ certificate stating that such Restricted Payment complies with this Indenture and setting forth in reasonable detail the basis upon which the required calculations were computed, which calculations may be based upon the Company’s quarterly financial statements last provided to the Trustee pursuant to Section 4.09Issue Date.
Appears in 1 contract
Limitation on Restricted Payments. The Company shall not, and shall not cause or permit any of its Restricted Subsidiaries toSubsidiaries, directly or indirectly, to make any Restricted Payment if at the time of such Restricted Payment or immediately after giving effect thereto, Payment: (i) a Default or an Event of Default shall have occurred and be continuing, continuing or shall occur as a consequence thereof; (ii) after giving effect to the Company is not able proposed Restricted Payment, the amount of such Restricted Payment, when added to incur at least $1.00 of additional Indebtedness other than Permitted Indebtedness in compliance with Section 4.12, or (iii) the aggregate amount of all Restricted Payments including such proposed Restricted Payment made after June 30the Issue Date, 2006, including, the Fair Market Value as determined reasonably and in good faith by the Board of Managers of the Company of non-cash amounts constituting Restricted Payments shall exceed exceeds the sum of: (wa) 50% of the cumulative Company’s Consolidated Net Income accrued during the period (or taken as a single period) commencing on July 1, 1997 to and including the fiscal quarter ended immediately prior to the date of such Restricted Payment (or, if cumulative such aggregate Consolidated Net Income shall be a lossdeficit, minus 100% of such loss) of the Company earned from June 30, 2006 through the last day of the last full fiscal quarter immediately preceding the date the Restricted Payment occurs (the “Reference Date”) (treating such period as a single accounting periodaggregate deficit); plus (xb) 100% of the aggregate net cash proceeds received by from the Company from any Person issuance and sale of the Company’s Capital Stock (other than to a Subsidiary of the Company) from that is not Disqualified Stock during the issuance period (taken as a single period) commencing with the Issue Date; and sale subsequent to June 30, 2006 of Qualified Capital Stock of (c) $50,000,000; or (iii) the Company (other than Specified Venture Capital Stock) or debt securities would not be able to incur an additional $1.00 of the Company that are, upon issuance, convertible into or exchangeable for Qualified Capital Stock of the Company, but only when and Indebtedness pursuant to the extent such debt securities are converted into or exchanged for Qualified Capital Stock of the Company; 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 the Company from a holder of the Company’s Capital Stock subsequent to June 30, 2006; plus (z) $400 millionSection 4.11 hereof. Notwithstanding the foregoing, the provisions set forth in the immediately preceding paragraph shall not prohibitCompany may: (1w) the payment of pay any dividend within 60 days after the date of declaration of such dividend thereof if the dividend payment thereof would have been permitted complied with the limitations of this Section 4.10 on the date of declaration; (2x) the acquisition of any retire shares of Capital Stock of the Company, either (i) solely in exchange for shares of Qualified ’s Capital Stock or the Company’s or a Subsidiary of the Company or (ii) if no Default or Event Company’s Indebtedness out of Default shall have occurred and be continuing, through the application of net cash proceeds of a substantially concurrent Equity Offering sale (other than to a Subsidiary of the Company) of shares of the Company’s Capital Stock (other than Disqualified Stock); (3y) the acquisition or repayment of any Indebtedness of the Company that is subordinate or junior make Investments in right of payment Joint Ventures, when added to the Notes either (i) solely in exchange for shares of Qualified Capital Stock of the Company, or (ii) if no Default or Event of Default shall have occurred and be continuing, through the application of net cash proceeds of (A) a substantially concurrent Equity Offering or (B) incurrence for cash of Refinancing Indebtedness, (in the case of (A) or (B), other than to a Subsidiary of the Company); (4) so long as no Default or Event of Default shall have occurred and be continuing, repurchases by the Company of, or dividends to a Huntsman Parent Company to permit repurchases by a Huntsman Parent Company of, Common Stock of the Company or a Huntsman Parent Company from employees of the Company or any of its Subsidiaries or their authorized representatives upon the death, disability or termination of employment of such employees, in an aggregate amount not to exceed $25 million in any calendar year; (5) the redemption or repurchase of any Common Stock of the Company held by a Restricted Subsidiary of the Company which obtained such Common Stock directly from the Company; (6) distributions to any Huntsman Parent Company in accordance with the Tax Sharing Agreement; (7) payments to any Huntsman Parent Company for legal, audit and other expenses directly relating to the administration of such Huntsman Parent Company not to exceed $10.0 million in any fiscal year; (8) the payment of consideration by a third party to equity holders of the Company; (9) additional Restricted Payments in an aggregate amount not to exceed $225 million since the Designated Date; (10) the payment of dividends or distributions to any Huntsman Parent Company which are contemporaneously applied to pay dividends on common stock of the Huntsman Public Parent at a rate not to exceed $0.40 per share per annum (such amount to be appropriately adjusted to reflect any stock split, reverse stock split, stock dividend, stock issuance or similar transactions made after the Designated Date so that the aggregate amount of dividends payable all such other Investments made pursuant to this clause (y) after the Issue Date, not exceeding at any time 5% of Consolidated Tangible Assets (with each such transaction is Investment being valued as of the same as the amount payable immediately prior date made and without regard to such transactionsubsequent changes in value); (11) payments of dividends on Disqualified Capital Stock issued in accordance with Section 4.12; and (12z) if the Consolidated Leverage Ratio of the Companymake Investments, calculated after giving pro forma effect when added to any repurchase under this clause (12), is less than 2.5 to 1.0, then the Company may repurchase or dividend to a Huntsman Parent Company to repurchase, up to an aggregate of $250 million of Common Stock of a Huntsman Parent Company. In determining the aggregate amount of all such other Investments made pursuant to this clause (z) after the Issue Date, not exceeding at any time 2.5% of Consolidated Tangible Assets (with each such Investment being valued as of the date made and without regard to subsequent changes in value); provided, however, that each Restricted Payment described in clauses (w) and (x) above shall be taken into account for purposes of computing the aggregate amount of all Restricted Payments made subsequent pursuant to the Designated Date in accordance with clause (iiiii) of the immediately preceding paragraph, cash amounts expended pursuant to clauses (1), (2), (3)(ii)(A) and (4) shall be included in such calculation and Restricted Payments made pursuant to the other clauses of this paragraph shall not be so included. Not later than the date of making any Restricted Payment pursuant to clause (iii) of the second preceding paragraph or clause (9) of the immediately preceding paragraph, the Company shall deliver to the Trustee an officers’ certificate stating that such Restricted Payment complies with this Indenture and setting forth in reasonable detail the basis upon which the required calculations were computed, which calculations may be based upon the Company’s quarterly financial statements last provided to the Trustee pursuant to Section 4.09.
Appears in 1 contract
Samples: Healthsouth Corp
Limitation on Restricted Payments. The Company shall not, and shall not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, make any Restricted Payment if at the time of such Restricted Payment or immediately after giving effect thereto, (i) a Default or an Event of Default shall have occurred and be continuing, (ii) the Company is not able to incur at least $1.00 of additional Indebtedness other than Permitted Indebtedness in compliance with Section 4.12, or (iii) the aggregate amount of Restricted Payments including such proposed Restricted Payment made after June 30January 1, 20062010, including, the Fair Market Value as determined reasonably and in good faith by the Board of Managers of the Company Company) of non-cash amounts constituting Restricted Payments 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 the Company earned from June 30January 1, 2006 2010 through the last day of the last full fiscal quarter immediately preceding 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 the Company from any Person (other than a Subsidiary of the Company) from the issuance and sale subsequent to June 30January 1, 2006 2010 of Qualified Capital Stock of the Company (other than Specified Venture Capital Stock) or debt securities of the Company that are, upon issuance, convertible into or exchangeable for Qualified Capital Stock of the Company, but only when and to the extent such debt securities are converted into or exchanged for Qualified Capital Stock of the Company; 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 the Company from a holder of the Company’s Capital Stock subsequent to June 30January 1, 20062010; plus (z) $400 100 million. Notwithstanding the foregoing, the provisions set forth in the immediately preceding paragraph shall 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) the acquisition of any shares of Capital Stock of the Company, either (i) solely in exchange for shares of Qualified Capital Stock of the Company or (ii) if no Default or Event of Default shall have occurred and be continuing, through the application of net cash proceeds of a substantially concurrent Equity Offering (other than to a Subsidiary of the Company); (3) the acquisition or repayment of any Indebtedness of the Company that is subordinate or junior in right of payment to the Notes either (i) solely in exchange for shares of Qualified Capital Stock of the Company, or (ii) if no Default or Event of Default shall have occurred and be continuing, through the application of net cash proceeds of (A) a substantially concurrent Equity Offering or (B) incurrence for cash of Refinancing Indebtedness, (in the case of (A) or (B), other than to a Subsidiary of the Company); (4) so long as no Default or Event of Default shall have occurred and be continuing, repurchases by the Company of, or dividends to a Huntsman Parent Company to permit repurchases by a Huntsman Parent Company of, Common Stock of the Company or a Huntsman Parent Company from employees of the Company or any of its Subsidiaries or their authorized representatives upon the death, disability or termination of employment of such employees, in an aggregate amount not to exceed $25 million in any calendar year; (5) the redemption or repurchase of any Common Stock of the Company held by a Restricted Subsidiary of the Company which obtained such Common Stock directly from the Company; (6) distributions to any Huntsman Parent Company in accordance with the Tax Sharing Agreement; (7) payments to any Huntsman Parent Company for legal, audit and other expenses directly relating to the administration of such Huntsman Parent Company not to exceed $10.0 million in any fiscal year; (8) the payment of consideration by a third party to equity holders of the Company; (9) additional Restricted Payments in an aggregate amount not to exceed $225 325 million since the Designated Issue Date; (10) the payment of dividends or distributions to any Huntsman Parent Company which are contemporaneously applied to pay dividends on common stock of the Huntsman Public Parent at a rate not to exceed $0.40 per share per annum (such amount to be appropriately adjusted to reflect any stock split, reverse stock split, stock dividend, stock issuance or similar transactions made after the Designated Issue Date so that the aggregate amount of dividends payable after such transaction is the same as the amount payable immediately prior to such transaction); (11) payments of dividends on Disqualified Capital Stock issued in accordance with Section 4.12; and (12) if the Consolidated Leverage Ratio of the Company, calculated after giving pro forma effect to any repurchase under this clause (12), is less than 2.5 to 1.0, then the Company may repurchase or dividend to a Huntsman Parent Company to repurchase, up to an aggregate of $250 million of Common Stock of a Huntsman Parent Company. In determining the aggregate amount of Restricted Payments made subsequent to the Designated Date January 1, 2010 in accordance with clause (iii) of the immediately preceding paragraph, cash amounts expended pursuant to clauses (1), (2), (3)(ii)(A) and (4) above shall be included in such calculation and Restricted Payments made pursuant to the other clauses of this paragraph shall not be so included. Not later than the date of making any Restricted Payment pursuant to clause (iii) of the second preceding paragraph or clause (9) of the immediately preceding paragraph, the Company shall deliver to the Trustee an officersOfficers’ certificate Certificate stating that such Restricted Payment complies with this Indenture and setting forth in reasonable detail the basis upon which the required calculations were computed, which calculations may be based upon the Company’s quarterly financial statements last provided to the Trustee pursuant to Section 4.09.
Appears in 1 contract
Samples: Indenture (Huntsman CORP)
Limitation on Restricted Payments. The Prior to the occurrence of the Fall-Away Event, the Company shall not, and shall not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, make any Restricted Payment if at the time of such Restricted Payment or immediately after giving effect thereto, Payment: (i) a Default or an Event of Default shall have occurred and be continuing, continuing or shall occur as a consequence thereof; (ii) after giving effect to the Company is not able proposed Restricted Payment, the amount of such Restricted Payment, when added to incur at least $1.00 of additional Indebtedness other than Permitted Indebtedness in compliance with Section 4.12, or (iii) the aggregate amount of all Restricted Payments including such proposed Restricted Payment made after June 30September 25, 20062000, including, the Fair Market Value as determined reasonably and in good faith by the Board of Managers of the Company of non-cash amounts constituting Restricted Payments shall exceed exceeds the sum of: (wa) 50% of the cumulative Company’s Consolidated Net Income accrued during the period (or taken as a single period) commencing on July 1, 1997 to and including the fiscal quarter ended immediately prior to the date of such Restricted Payment (or, if cumulative such aggregate Consolidated Net Income shall be a lossdeficit, minus 100% of such loss) of the Company earned from June 30, 2006 through the last day of the last full fiscal quarter immediately preceding the date the Restricted Payment occurs (the “Reference Date”) (treating such period as a single accounting periodaggregate deficit); plus (xb) 100% of the aggregate net cash proceeds received by from the Company from any Person issuance and sale of the Company’s Capital Stock (other than to a Subsidiary of the Company) from that is not Disqualified Stock during the issuance period (taken as a single period) commencing with the Issue Date; and sale subsequent to June 30, 2006 of Qualified Capital Stock of (c) $50,000,000; or (iii) the Company (other than Specified Venture Capital Stock) or debt securities would not be able to incur an additional $1.00 of the Company that are, upon issuance, convertible into or exchangeable for Qualified Capital Stock of the Company, but only when and Indebtedness pursuant to the extent such debt securities are converted into or exchanged for Qualified Capital Stock of the Company; plus (yEBITDA Coverage Ratio test in Section 4.11(a) without duplication of any amounts included in clause (iii)(x) above, 100% of the aggregate net cash proceeds of any equity contribution received by the Company from a holder of the Company’s Capital Stock subsequent to June 30, 2006; plus (z) $400 millionhereof. Notwithstanding the foregoing, the provisions set forth in the immediately preceding paragraph shall not prohibitCompany may: (1w) the payment of pay any dividend within 60 days after the date of declaration of such dividend thereof if the dividend payment thereof would have been permitted complied with the limitations of this Section 4.10 on the date of declaration; (2x) the acquisition of any retire shares of Capital Stock of the Company, either (i) solely in exchange for shares of Qualified ’s Capital Stock or the Company’s or a Subsidiary of the Company or (ii) if no Default or Event Company’s Indebtedness out of Default shall have occurred and be continuing, through the application of net cash proceeds of a substantially concurrent Equity Offering sale (other than to a Subsidiary of the Company) of shares of the Company’s Capital Stock (other than Disqualified Stock); (3y) the acquisition or repayment of any Indebtedness of the Company that is subordinate or junior make Investments in right of payment Joint Ventures which, when added to the Notes either (i) solely in exchange for shares of Qualified Capital Stock of the Company, or (ii) if no Default or Event of Default shall have occurred and be continuing, through the application of net cash proceeds of (A) a substantially concurrent Equity Offering or (B) incurrence for cash of Refinancing Indebtedness, (in the case of (A) or (B), other than to a Subsidiary of the Company); (4) so long as no Default or Event of Default shall have occurred and be continuing, repurchases by the Company of, or dividends to a Huntsman Parent Company to permit repurchases by a Huntsman Parent Company of, Common Stock of the Company or a Huntsman Parent Company from employees of the Company or any of its Subsidiaries or their authorized representatives upon the death, disability or termination of employment of such employees, in an aggregate amount not to exceed $25 million in any calendar year; (5) the redemption or repurchase of any Common Stock of the Company held by a Restricted Subsidiary of the Company which obtained such Common Stock directly from the Company; (6) distributions to any Huntsman Parent Company in accordance with the Tax Sharing Agreement; (7) payments to any Huntsman Parent Company for legal, audit and other expenses directly relating to the administration of such Huntsman Parent Company not to exceed $10.0 million in any fiscal year; (8) the payment of consideration by a third party to equity holders of the Company; (9) additional Restricted Payments in an aggregate amount not to exceed $225 million since the Designated Date; (10) the payment of dividends or distributions to any Huntsman Parent Company which are contemporaneously applied to pay dividends on common stock of the Huntsman Public Parent at a rate not to exceed $0.40 per share per annum (such amount to be appropriately adjusted to reflect any stock split, reverse stock split, stock dividend, stock issuance or similar transactions made after the Designated Date so that the aggregate amount of dividends payable all such other Investments made after September 25, 2000 pursuant to this clause (y) (or such transaction is other Investments as would have been made pursuant to this clause (y) had such clause been in effect) do not exceed 5% of Consolidated Tangible Assets at such time (with each such Investment being valued as of the same as the amount payable immediately prior date made and without regard to such transactionsubsequent changes in value); (11) payments of dividends on Disqualified Capital Stock issued in accordance with Section 4.12; and (12z) if the Consolidated Leverage Ratio of the Companymake Investments which, calculated after giving pro forma effect when added to any repurchase under this clause (12), is less than 2.5 to 1.0, then the Company may repurchase or dividend to a Huntsman Parent Company to repurchase, up to an aggregate of $250 million of Common Stock of a Huntsman Parent Company. In determining the aggregate amount of all such other Investments made after September 25, 2000 pursuant to this clause (z) (or such other Investments as would have been made pursuant to this clause (z) had such clause been in effect) do not exceed 2.5% of Consolidated Tangible Assets at such time (with each such Investment being valued as of the date made and without regard to subsequent changes in value); provided, however, that each Restricted Payment described in clause (w) or (x) above shall be taken into account for purposes of computing the aggregate amount of all Restricted Payments made subsequent pursuant to the Designated Date in accordance with clause (iiiii) of the immediately preceding paragraph, cash amounts expended pursuant to clauses (1), (2), (3)(ii)(A) and (4) shall be included in such calculation and Restricted Payments made pursuant to the other clauses of this paragraph shall not be so included. Not later than the date of making any Restricted Payment pursuant to clause (iii) of the second preceding paragraph or clause (9) of the immediately preceding paragraph, the Company shall deliver to the Trustee an officers’ certificate stating that such Restricted Payment complies with this Indenture and setting forth in reasonable detail the basis upon which the required calculations were computed, which calculations may be based upon the Company’s quarterly financial statements last provided to the Trustee pursuant to Section 4.09.
Appears in 1 contract
Samples: Healthsouth Corp
Limitation on Restricted Payments. The On and after the Issue Date the Company shall not, and shall not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, make any Restricted Payment if at the time of Payment, if, after giving effect to such Restricted Payment or immediately after giving effect theretoon a PRO FORMA basis, (i1) a Default or an Event of Default shall have occurred and be continuing, (ii2) the Company is not able permitted to incur at least $1.00 of additional Indebtedness other than Permitted Indebtedness pursuant to the Leverage Ratio in compliance with Section 4.124.11, or (iii3) the aggregate amount of all Restricted Payments made by the Company and its Subsidiaries, including after giving effect to such proposed Restricted Payment made Payment, from and after June 30the Issue Date, 2006, including, the Fair Market Value as determined reasonably and in good faith by the Board of Managers of the Company of non-cash amounts constituting Restricted Payments shall would exceed the sum of: 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 the Company earned from June 30, 2006 through the last day of the last full fiscal quarter immediately preceding the date the Restricted Payment occurs (the “Reference Date”) (treating such period as a single accounting period); plus (xa)(x) 100% of the aggregate net cash proceeds Consolidated EBITDA of the Company and its Consolidated Subsidiaries for the period (taken as one accounting period), commencing on the first day of the first full fiscal quarter commencing after the Issue Date, to and including the last day of the fiscal quarter ended immediately prior to the date of each such calculation (or, in the event Consolidated EBITDA for such period is a deficit, then minus 100% of such deficit) less (y) 1.4 times Consolidated Fixed Charges for the same period plus (b) the aggregate Net Cash Proceeds received by the Company from any Person the sale of its Qualified Capital Stock (other than (i) to a Subsidiary of the CompanyCompany and (ii) from the issuance and sale subsequent to June 30, 2006 of Qualified Capital Stock of the Company (other than Specified Venture Capital Stock) or debt securities of the Company that are, upon issuance, convertible into or exchangeable for Qualified Capital Stock of the Company, but only when and to the extent such debt securities are converted into or exchanged for applied in connection with a Qualified Capital Stock Exchange), after the Issue Date. The foregoing clauses (2) and (3) of the Company; plus immediately preceding paragraph, however, will not prohibit (w) payments to the Parent Guarantor to reimburse the Parent Guarantor for reasonable and necessary corporate and administrative expenses, (x) Restricted Investments, PROVIDED, that, after giving PRO FORMA effect to such Restricted Investment, the aggregate amount of all such Restricted Investments made on or after the Issue Date that are outstanding (after giving effect to any such Restricted Investments that are returned to the Company or the Subsidiary Guarantor that made such prior Restricted Investment, without restriction, in cash on or prior to the date of any such calculation) at any time does not exceed $[ ].0 million, (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 the Company from a holder of the Company’s Capital Stock subsequent to June 30, 2006; plus Qualified Exchange and (z) $400 million. Notwithstanding the foregoing, the provisions set forth in the immediately preceding paragraph shall not prohibit: (1) the payment of any dividend on Qualified Capital Stock within 60 days after the date of its declaration of if such dividend if the dividend would could have been permitted made on the date of declaration; (2) such declaration in compliance with the acquisition foregoing provisions. The full amount of any shares of Capital Stock Restricted Payment made pursuant to the foregoing clauses (x) and (z) of the Companyimmediately preceding sentence, either (i) solely in exchange for shares of Qualified Capital Stock of the Company or (ii) if no Default or Event of Default shall have occurred and however, will be continuing, through the application of net cash proceeds of a substantially concurrent Equity Offering (other than to a Subsidiary of the Company); (3) the acquisition or repayment of any Indebtedness of the Company that is subordinate or junior in right of payment to the Notes either (i) solely in exchange for shares of Qualified Capital Stock of the Company, or (ii) if no Default or Event of Default shall have occurred and be continuing, through the application of net cash proceeds of (A) a substantially concurrent Equity Offering or (B) incurrence for cash of Refinancing Indebtedness, (deducted in the case calculation of (A) or (B), other than to a Subsidiary of the Company); (4) so long as no Default or Event of Default shall have occurred and be continuing, repurchases by the Company of, or dividends to a Huntsman Parent Company to permit repurchases by a Huntsman Parent Company of, Common Stock of the Company or a Huntsman Parent Company from employees of the Company or any of its Subsidiaries or their authorized representatives upon the death, disability or termination of employment of such employees, in an aggregate amount not to exceed $25 million in any calendar year; (5) the redemption or repurchase of any Common Stock of the Company held by a Restricted Subsidiary of the Company which obtained such Common Stock directly from the Company; (6) distributions to any Huntsman Parent Company in accordance with the Tax Sharing Agreement; (7) payments to any Huntsman Parent Company for legal, audit and other expenses directly relating to the administration of such Huntsman Parent Company not to exceed $10.0 million in any fiscal year; (8) the payment of consideration by a third party to equity holders of the Company; (9) additional Restricted Payments in an aggregate amount not to exceed $225 million since the Designated Date; (10) the payment of dividends or distributions to any Huntsman Parent Company which are contemporaneously applied to pay dividends on common stock of the Huntsman Public Parent at a rate not to exceed $0.40 per share per annum (such amount to be appropriately adjusted to reflect any stock split, reverse stock split, stock dividend, stock issuance or similar transactions made after the Designated Date so that the aggregate amount of dividends payable after such transaction is the same as the amount payable immediately prior to such transaction); (11) payments of dividends on Disqualified Capital Stock issued in accordance with Section 4.12; and (12) if the Consolidated Leverage Ratio of the Company, calculated after giving pro forma effect to any repurchase under this clause (12), is less than 2.5 to 1.0, then the Company may repurchase or dividend to a Huntsman Parent Company to repurchase, up to an aggregate of $250 million of Common Stock of a Huntsman Parent Company. In determining the aggregate amount of Restricted Payments available to be made subsequent pursuant to the Designated Date in accordance with clause (iii3) of the immediately preceding paragraph, cash amounts expended pursuant to clauses (1), (2), (3)(ii)(A) and (4) shall be included in such calculation and Restricted Payments made pursuant to the other clauses of this paragraph shall not be so included. Not later than the date of making any Restricted Payment pursuant to clause (iii) of the second preceding paragraph or clause (9) of the immediately preceding paragraph, the Company shall deliver to the Trustee an officers’ certificate stating that such Restricted Payment complies with this Indenture and setting forth in reasonable detail the basis upon which the required calculations were computed, which calculations may be based upon the Company’s quarterly financial statements last provided to the Trustee pursuant to Section 4.09.
Appears in 1 contract
Limitation on Restricted Payments. The Company shall will not, and shall will not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, make any Restricted Payment if at the time of if, after giving effect to such Restricted Payment or immediately after giving effect theretoon a pro forma basis, (i1) a Default or an Event of Default shall have occurred and be continuing, (ii2) the Company is not able permitted to incur at least $1.00 of additional Indebtedness other than Permitted Indebtedness pursuant to the Debt Incurrence Ratio in compliance with paragraph (a) of Section 4.125.11, or (iii3) the aggregate amount of all Restricted Payments made by the Company and its Subsidiaries, including after giving effect to such proposed Restricted Payment made Payment, from and after June 30April 17, 20061996, including, the Fair Market Value as determined reasonably and in good faith by the Board of Managers of the Company of non-cash amounts constituting Restricted Payments shall would exceed the sum of: of (wa) 50% of the cumulative aggregate Consolidated Net Income of the Company and its Consolidated Subsidiaries for the period (or if cumulative taken as one accounting period) commencing on the first day of the first fiscal quarter commencing prior to April 17, 1996, to and including the last day of the fiscal quarter ended immediately prior to the date of each such calculation (or, in the event Consolidated Net Income shall be for such period is a lossdeficit, then minus 100% of such loss) of the Company earned from June 30deficit), 2006 through the last day of the last full fiscal quarter immediately preceding the date the Restricted Payment occurs (the “Reference Date”) (treating such period as a single accounting period); plus (xb) 100% of the aggregate net cash proceeds Net Cash Proceeds received by the Company after April 17, 1996 and on or prior to the date of such proposed Restricted Payment from any Person (i) the sale of its Qualified Capital Stock (other than (x) to a Subsidiary of the Company, (y) from the issuance and sale subsequent to June 30, 2006 of Qualified Capital Stock of the Company (other than Specified Venture Capital Stock) or debt securities of the Company that are, upon issuance, convertible into or exchangeable for Qualified Capital Stock of the Company, but only when and to the extent such debt securities are converted into applied in connection with a Qualified Exchange and (z) in connection with the equity offering by THCR prior to or exchanged for Qualified Capital Stock substantially concurrent with the issuance of the Company; plus Existing Notes on April 17, 1996, including the exercise of the underwriters' over allotment option, except for amounts the Company received therefrom (including by Capital Contribution) in excess of $270 million) or (ii) (without duplication) other Capital Contributions. The foregoing clauses (2) and (3) of the immediately preceding paragraph, however, will not prohibit (v) (I) distributions by the Company pursuant to the terms of the Partnership Agreement as in effect on the Issue Date to THCR Holdings to the extent promptly distributed to and/or applied by THCR Holdings or THCR (A) to pay reasonable general and administrative expenses of such persons, including directors' fees and premiums for directors' and officers' liability insurance, which distributions shall not exceed $10.0 million in any consecutive four-quarter period, (B) to make indemnification payments as required by the Certificate of Incorporation of THCR as in effect on April 17, 1996 or (C) to effect redemption of any Equity Interest of THCR if (x) counsel to THCR delivers an opinion that failure to so redeem would subject THCR to an adverse action by a Gaming Authority (or, if applicable, a failure to act by a Gaming Authority that is adverse to THCR) and (y) without duplication THCR determines (as evidenced by a resolution of its Board of Directors delivered to the Trustee) that such adverse action (or, if applicable, such failure to act) would be likely to have a material adverse effect on THCR, and (II) distributions by the Company to THCR Holdings to the extent promptly distributed to and applied by THCR to pay any amounts included tax liability resulting from the distributions provided for in clause (iii)(xI) above, 100% of as required by the aggregate net cash proceeds of any equity contribution received Partnership Agreement, (w) distributions by the Company from a holder to THCR Holdings in an amount not to exceed (I) $50.0 million in the aggregate minus (II) the aggregate amount of any Restricted Payments made pursuant to clause (w) of the Company’s Capital Stock subsequent second paragraph of Section 5.3 contained in the Existing Note Indenture on or prior to June 30the Issue Date, 2006; plus to the extent applied by THCR Holdings, within 20 Business Days of receiving such distribution, to the next scheduled interest payment on the Senior Notes or any Refinancing Indebtedness with respect thereto (zprovided, that solely in the case of this clause (w), clause (1) $400 million. Notwithstanding the foregoing, the provisions set forth in of the immediately preceding paragraph shall will not prohibit: prohibit a distribution hereunder except in the case of an Event of Default under clause (1a) or (b) of Section 7.1 hereof), (x) a Qualified Exchange, (y) for so long as the Company is a partnership or substantially similar pass-through entity for Federal income tax purposes, cash distributions made by the Company to its Partners from time to time in amounts not to exceed the Permitted Tax Distributions, so long as the payments are made at the time permitted by the second sentence of the definition of Permitted Tax Distributions contained herein, or (z) the payment of any dividend within 60 days after the date of its declaration of if such dividend if the dividend would could have been permitted made on the date of declaration; (2) such declaration in compliance with the acquisition of any shares of Capital Stock of foregoing provisions. In addition, the Company, either (i) solely in exchange for shares of Qualified Capital Stock of immediately preceding paragraph will not prohibit the Company or (ii) if no Default or Event of Default shall have occurred and be continuing, through the application of net cash proceeds of a substantially concurrent Equity Offering (other than to a Subsidiary of the Company); (3) the acquisition or repayment of any Indebtedness of the Company that is subordinate or junior in right of payment to the Notes either (i) solely in exchange for shares of Qualified Capital Stock of the Company, or (ii) if no Default or Event of Default shall have occurred and be continuing, through the application of net cash proceeds of (A) a substantially concurrent Equity Offering or (B) incurrence for cash of Refinancing Indebtedness, (in the case of (A) or (B), other than to a Subsidiary of the Company); (4) so long as no Default or Event of Default shall have occurred and be continuing, repurchases purchase by the Company of, or dividends of Existing Notes substantially concurrently with a purchase by the Company of TAC II Notes pursuant to a Huntsman Parent Company to permit repurchases by a Huntsman Parent Company of, Common Stock Change of the Company Control Offer or a Huntsman Parent Company from employees of the Company or any of its Subsidiaries or their authorized representatives upon the death, disability or termination of employment of such employees, in an aggregate amount not to exceed $25 million in any calendar year; (5) the redemption or repurchase of any Common Stock of the Company held by a Restricted Subsidiary of the Company which obtained such Common Stock directly from the Company; (6) distributions to any Huntsman Parent Company Asset Sale Offer in accordance with the Tax Sharing Agreement; (7) payments to TAC II Notes Indenture and the Existing Note Indenture, respectively. The full amount of any Huntsman Parent Company for legal, audit and other expenses directly relating Restricted Payment made pursuant to the administration of such Huntsman Parent Company not to exceed $10.0 million in any fiscal year; foregoing clauses (8) the payment of consideration by a third party to equity holders v), (w), (y) and (z) of the Company; second preceding sentence (9but not pursuant to the immediately preceding sentence or to clause (x) additional Restricted Payments in an aggregate amount not to exceed $225 million since the Designated Date; (10) the payment of dividends or distributions to any Huntsman Parent Company which are contemporaneously applied to pay dividends on common stock of the Huntsman Public Parent at a rate not to exceed $0.40 per share per annum (such amount to be appropriately adjusted to reflect any stock split, reverse stock split, stock dividend, stock issuance or similar transactions made after the Designated Date so that the aggregate amount of dividends payable after such transaction is the same as the amount payable immediately prior to such transaction); (11) payments of dividends on Disqualified Capital Stock issued in accordance with Section 4.12; and (12) if the Consolidated Leverage Ratio of the Company, calculated after giving pro forma effect to any repurchase under this clause (12second preceding sentence), is less than 2.5 to 1.0however, then will be deducted in the Company may repurchase or dividend to a Huntsman Parent Company to repurchase, up to an aggregate calculation of $250 million of Common Stock of a Huntsman Parent Company. In determining the aggregate amount of Restricted Payments available to be made subsequent referred to the Designated Date in accordance with clause (iii3) of the immediately preceding paragraph, cash amounts expended pursuant to clauses (1), (2), (3)(ii)(A) and (4) shall be included in such calculation and Restricted Payments made pursuant to the other clauses of this paragraph shall not be so included. Not later than the date of making any Restricted Payment pursuant to clause (iii) of the second preceding paragraph or clause (9) of the immediately preceding paragraph, the Company shall deliver to the Trustee an officers’ certificate stating that such Restricted Payment complies with this Indenture and setting forth in reasonable detail the basis upon which the required calculations were computed, which calculations may be based upon the Company’s quarterly financial statements last provided to the Trustee pursuant to Section 4.09.
Appears in 1 contract
Limitation on Restricted Payments. The Company shall not, and shall not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, make any Restricted Payment if at the time of if, after giving effect to such Restricted Payment or immediately after giving effect theretoon a PRO FORMA basis, (i1) a Default or an Event of Default shall have occurred and be continuing, (ii2) the Company is not able permitted to incur at least $1.00 of additional Indebtedness other than Permitted Indebtedness pursuant to the Debt Incurrence Ratio in compliance with paragraph (a) of Section 4.124.10, or (iii3) the aggregate amount of all Restricted Payments made by the Company and its Subsidiaries, including after giving effect to such proposed Restricted Payment made Payment, from and after June 30the Issue Date, 2006, including, would exceed the Fair Market Value as determined reasonably and in good faith by the Board sum of Managers (a) Consolidated EBITDA of the Company of non-cash amounts constituting Restricted Payments shall exceed and its Consolidated Subsidiaries for the sum of: period (w) 50% taken as one accounting period), commencing on the first day of the cumulative first full fiscal quarter commencing after the Issue Date, to and including the last day of the fiscal quarter ended immediately prior to the date of each such calculation (or, in the event Consolidated Net Income (or if cumulative Consolidated Net Income shall be EBITDA for such period is a lossdeficit, then minus 100% of such lossdeficit), minus (b) of 1.5 times the Company earned from June 30Consolidated Fixed Charges over such period, 2006 through the last day of the last full fiscal quarter immediately preceding the date the Restricted Payment occurs (the “Reference Date”) (treating such period as a single accounting period); plus (xc) 100% of the aggregate net cash proceeds Net Cash Proceeds received by the Company from any Person the sale of its Qualified Capital Stock or Indebtedness to the extent subsequently converted into Qualified Capital Stock (other than a Subsidiary of the Company) from the issuance and sale subsequent to June 30, 2006 of Qualified Capital Stock of the Company (other than Specified Venture Capital Stock) or debt securities of the Company that are, upon issuance, convertible into or exchangeable for Qualified Capital Stock of the Company, but only when and to the extent such debt securities are converted into or exchanged for Qualified Capital Stock of the Company; 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 the Company from a holder of the Company’s Capital Stock subsequent to June 30, 2006; plus (z) $400 million. Notwithstanding the foregoing, the provisions set forth in the immediately preceding paragraph shall 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) the acquisition of any shares of Capital Stock of the Company, either (i) solely in exchange for shares of Qualified Capital Stock of the Company or (ii) if no Default or Event of Default shall have occurred and be continuing, through the application of net cash proceeds of a substantially concurrent Equity Offering (other than to a Subsidiary of the Company); (3) the acquisition or repayment of any Indebtedness of the Company that is subordinate or junior in right of payment to the Notes either (i) solely in exchange for shares of Qualified Capital Stock of the Company, or and (ii) if no Default or Event of Default shall have occurred and be continuing, through to the application of net cash proceeds of (A) extent applied in connection with a substantially concurrent Equity Offering or (B) incurrence for cash of Refinancing Indebtedness, (in the case of (AQualified Exchange) or the fair market value (B), other than to a Subsidiary as determined by the Board of Directors reasonably and in good faith) of securities of the Company); (4) so long as no Default or Event of Default shall have occurred and be continuing, repurchases Parent issued in connection with an acquisition by the Company ofor any of its Subsidiaries, in each case after the Issue Date, plus (d) the net reductions in Investments (other than reductions in Permitted Investments) in any Person resulting from payments of interest on Indebtedness, dividends, repayments of loans or dividends from designations of Unrestricted Subsidiaries as Subsidiaries, valued in each case as provided in the definition of "Investment," not to a Huntsman Parent exceed the amount of Investments previously made by the Company to permit repurchases by a Huntsman Parent Company ofand its Subsidiaries in such Person, Common Stock plus (e) $15 million. The preceding paragraph, however, will not prohibit (w) payments in accordance with "Use of Proceeds" section of the Company or a Huntsman Parent Company Offering Memorandum, dated December 11, 1996, (x) repurchases of Capital Stock out of the proceeds of any "key man" life insurance policies on Xxxxxx X. Xxxxx existing on the Issue Date and described in the Prospectus and additional repurchases of Capital Stock from employees of the Company or any of its Subsidiaries or their authorized representatives upon the death, disability or termination of employment of such employees, in an aggregate amount to all employees not to exceed $25 1 million per year or $2 million in any calendar year; the aggregate on and after the Issue Date, (5y) the redemption a Qualified Exchange, or repurchase of any Common Stock of the Company held by a Restricted Subsidiary of the Company which obtained such Common Stock directly from the Company; (6) distributions to any Huntsman Parent Company in accordance with the Tax Sharing Agreement; (7) payments to any Huntsman Parent Company for legal, audit and other expenses directly relating to the administration of such Huntsman Parent Company not to exceed $10.0 million in any fiscal year; (8) the payment of consideration by a third party to equity holders of the Company; (9) additional Restricted Payments in an aggregate amount not to exceed $225 million since the Designated Date; (10z) the payment of dividends or distributions any dividend on Qualified Capital Stock within 60 days after the date of its declaration if such dividend could have been made on the date of such declaration in compliance with the foregoing provisions. The full amount of any Restricted Payment made pursuant to any Huntsman Parent Company which are contemporaneously applied to pay dividends on common stock the foregoing clauses (x) and (z) of the Huntsman Public Parent at a rate not to exceed $0.40 per share per annum (such amount to immediately preceding sentence, however, will be appropriately adjusted to reflect any stock split, reverse stock split, stock dividend, stock issuance or similar transactions made after deducted in the Designated Date so that the aggregate amount calculation of dividends payable after such transaction is the same as the amount payable immediately prior to such transaction); (11) payments of dividends on Disqualified Capital Stock issued in accordance with Section 4.12; and (12) if the Consolidated Leverage Ratio of the Company, calculated after giving pro forma effect to any repurchase under this clause (12), is less than 2.5 to 1.0, then the Company may repurchase or dividend to a Huntsman Parent Company to repurchase, up to an aggregate of $250 million of Common Stock of a Huntsman Parent Company. In determining the aggregate amount of Restricted Payments available to be made subsequent referred to the Designated Date in accordance with clause (iii3) of the immediately preceding paragraph, cash amounts expended pursuant to clauses (1), (2), (3)(ii)(A) and (4) shall be included in such calculation and Restricted Payments made pursuant to the other clauses paragraph of this paragraph shall not be so included. Not later than the date of making any Restricted Payment pursuant to clause (iii) of the second preceding paragraph or clause (9) of the immediately preceding paragraph, the Company shall deliver to the Trustee an officers’ certificate stating that such Restricted Payment complies with this Indenture and setting forth in reasonable detail the basis upon which the required calculations were computed, which calculations may be based upon the Company’s quarterly financial statements last provided to the Trustee pursuant to Section 4.094.3.
Appears in 1 contract
Samples: Universal Outdoor Inc
Limitation on Restricted Payments. The Company shall not, and shall not cause or permit any of its Restricted Subsidiaries toSubsidiaries, directly or indirectly, to make any Restricted Payment if at the time of such Restricted Payment or immediately after giving effect thereto, Payment: (i) a Default or an Event of Default shall have occurred and be continuing, continuing or shall occur as a consequence thereof; (ii) after giving effect to the Company is not able proposed Restricted Payment, the amount of such Restricted Payment, when added to incur at least $1.00 of additional Indebtedness other than Permitted Indebtedness in compliance with Section 4.12, or (iii) the aggregate amount of all Restricted Payments including such proposed Restricted Payment made after June 30September 25, 20062000, including, the Fair Market Value as determined reasonably and in good faith by the Board of Managers of the Company of non-cash amounts constituting Restricted Payments shall exceed exceeds the sum of: (wa) 50% of the cumulative Company's Consolidated Net Income accrued during the period (or taken as a single period) commencing on July 1, 1997 to and including the fiscal quarter ended immediately prior to the date of such Restricted Payment (or, if cumulative such aggregate Consolidated Net Income shall be a lossdeficit, minus 100% of such loss) of the Company earned from June 30, 2006 through the last day of the last full fiscal quarter immediately preceding the date the Restricted Payment occurs (the “Reference Date”) (treating such period as a single accounting periodaggregate deficit); plus (xb) 100% of the aggregate net cash proceeds received by from the Company from any Person issuance and sale of the Company's Capital Stock (other than to a Subsidiary of the Company) from that is not Disqualified Stock during the issuance period (taken as a single period) commencing with the Issue Date; and sale subsequent to June 30, 2006 of Qualified Capital Stock of (c) $50,000,000; or (iii) the Company (other than Specified Venture Capital Stock) or debt securities would not be able to incur an additional $1.00 of the Company that are, upon issuance, convertible into or exchangeable for Qualified Capital Stock of the Company, but only when and Indebtedness pursuant to the extent such debt securities are converted into or exchanged for Qualified Capital Stock of the Company; 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 the Company from a holder of the Company’s Capital Stock subsequent to June 30, 2006; plus (z) $400 millionSection 4.11 hereof. Notwithstanding the foregoing, the provisions set forth in the immediately preceding paragraph shall not prohibitCompany may: (1w) the payment of pay any dividend within 60 days after the date of declaration of such dividend thereof if the dividend payment thereof would have been permitted complied with the limitations of this Section 4.10 on the date of declaration; (2x) the acquisition of any retire shares of Capital Stock of the Company, either (i) solely in exchange for shares of Qualified 's Capital Stock or the Company's or a Subsidiary of the Company or (ii) if no Default or Event Company's Indebtedness out of Default shall have occurred and be continuing, through the application of net cash proceeds of a substantially concurrent Equity Offering sale (other than to a Subsidiary of the Company) of shares of the Company's Capital Stock (other than Disqualified Stock); (3y) the acquisition or repayment of any Indebtedness of the Company that is subordinate or junior make Investments in right of payment Joint Ventures, when added to the Notes either (i) solely in exchange for shares of Qualified Capital Stock of the Company, or (ii) if no Default or Event of Default shall have occurred and be continuing, through the application of net cash proceeds of (A) a substantially concurrent Equity Offering or (B) incurrence for cash of Refinancing Indebtedness, (in the case of (A) or (B), other than to a Subsidiary of the Company); (4) so long as no Default or Event of Default shall have occurred and be continuing, repurchases by the Company of, or dividends to a Huntsman Parent Company to permit repurchases by a Huntsman Parent Company of, Common Stock of the Company or a Huntsman Parent Company from employees of the Company or any of its Subsidiaries or their authorized representatives upon the death, disability or termination of employment of such employees, in an aggregate amount not to exceed $25 million in any calendar year; (5) the redemption or repurchase of any Common Stock of the Company held by a Restricted Subsidiary of the Company which obtained such Common Stock directly from the Company; (6) distributions to any Huntsman Parent Company in accordance with the Tax Sharing Agreement; (7) payments to any Huntsman Parent Company for legal, audit and other expenses directly relating to the administration of such Huntsman Parent Company not to exceed $10.0 million in any fiscal year; (8) the payment of consideration by a third party to equity holders of the Company; (9) additional Restricted Payments in an aggregate amount not to exceed $225 million since the Designated Date; (10) the payment of dividends or distributions to any Huntsman Parent Company which are contemporaneously applied to pay dividends on common stock of the Huntsman Public Parent at a rate not to exceed $0.40 per share per annum (such amount to be appropriately adjusted to reflect any stock split, reverse stock split, stock dividend, stock issuance or similar transactions made after the Designated Date so that the aggregate amount of dividends payable all such other Investments made pursuant to this clause (y) (or such other Investments as would have been made pursuant to this clause (y) had such clause been in effect) after September 25, 2000, not exceeding at any time 5% of Consolidated Tangible Assets (with each such transaction is Investment being valued as of the same as the amount payable immediately prior date made and without regard to such transactionsubsequent changes in value); (11) payments of dividends on Disqualified Capital Stock issued in accordance with Section 4.12; and (12z) if the Consolidated Leverage Ratio of the Companymake Investments, calculated after giving pro forma effect when added to any repurchase under this clause (12), is less than 2.5 to 1.0, then the Company may repurchase or dividend to a Huntsman Parent Company to repurchase, up to an aggregate of $250 million of Common Stock of a Huntsman Parent Company. In determining the aggregate amount of all such other Investments made pursuant to this clause (z) (or such other Investments as would have been made pursuant to this clause (z) had such clause been in effect) after September 25, 2000, not exceeding at any time 2.5% of Consolidated Tangible Assets (with each such Investment being valued as of the date made and without regard to subsequent changes in value); provided, however, that each Restricted Payment described in clauses (w) and (x) above shall be taken into account for purposes of computing the aggregate amount of all Restricted Payments made subsequent pursuant to the Designated Date in accordance with clause (iiiii) of the immediately preceding paragraph, cash amounts expended pursuant to clauses (1), (2), (3)(ii)(A) and (4) shall be included in such calculation and Restricted Payments made pursuant to the other clauses of this paragraph shall not be so included. Not later than the date of making any Restricted Payment pursuant to clause (iii) of the second preceding paragraph or clause (9) of the immediately preceding paragraph, the Company shall deliver to the Trustee an officers’ certificate stating that such Restricted Payment complies with this Indenture and setting forth in reasonable detail the basis upon which the required calculations were computed, which calculations may be based upon the Company’s quarterly financial statements last provided to the Trustee pursuant to Section 4.09.
Appears in 1 contract
Samples: Indenture (Healthsouth Corp)
Limitation on Restricted Payments. (a) The Company shall will not, and shall will not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, make any Restricted Payment if Payment, unless at the time of such Restricted Payment or and immediately after giving effect theretoto the proposed Restricted Payment (with the value of any such Restricted Payment, if other than cash, to be determined by the Board of Directors of the Company in good faith, whose determination shall be conclusive and evidenced by a board resolution), (i) a Default or an Event of Default shall have occurred and be continuing, (ii) the Company is not able to incur at least $1.00 of additional Indebtedness other than Permitted Indebtedness in compliance with Section 4.12, or (iii) the aggregate amount of Restricted Payments including such proposed Restricted Payment made after June 30, 2006, including, the Fair Market Value as determined reasonably and in good faith by the Board of Managers of the Company of non-cash amounts constituting Restricted Payments 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 the Company earned from June 30, 2006 through the last day of the last full fiscal quarter immediately preceding 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 the Company from any Person (other than a Subsidiary of the Company) from the issuance and sale subsequent to June 30, 2006 of Qualified Capital Stock of the Company (other than Specified Venture Capital Stock) or debt securities of the Company that are, upon issuance, convertible into or exchangeable for Qualified Capital Stock of the Company, but only when and to the extent such debt securities are converted into or exchanged for Qualified Capital Stock of the Company; 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 the Company from a holder of the Company’s Capital Stock subsequent to June 30, 2006; plus (z) $400 million. Notwithstanding the foregoing, the provisions set forth in the immediately preceding paragraph shall 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) the acquisition of any shares of Capital Stock of the Company, either (i) solely in exchange for shares of Qualified Capital Stock of the Company or (ii) if no Default or Event of Default shall have occurred and be continuingcontinuing or would occur as a consequence thereof, through (ii) the application Company could incur at least $1.00 of additional Indebtedness pursuant to the provisions of Section 4.07(a) and (iii) the aggregate amount of all Restricted Payments made after April 29, 2010 shall not exceed the sum of (without duplication) (a) an amount equal to the Company’s Cumulative Operating Cash Flow less 1.4 times the Company’s Cumulative Consolidated Interest Expense, plus (b) the aggregate amount of all net cash proceeds of a substantially concurrent Equity Offering received after April 29, 2010 by the Company from (x) the issuance and sale (other than to a Subsidiary of the Company); ) of Capital Stock of the Company (3other than Disqualified Stock) to the acquisition extent that such proceeds are not used to redeem, repurchase, retire or repayment of otherwise acquire Capital Stock or any Indebtedness of the Company or any Subsidiary pursuant to clause (ii) of Section 4.05(b) or (y) Indebtedness of the Company issued since April 29, 2010 (other than to Subsidiaries) that is subordinate or junior in right of payment to the Notes either (i) solely in exchange for shares of Qualified have been converted into Capital Stock of the CompanyCompany (other than Disqualified Stock), plus (c) to the extent that any Unrestricted Subsidiary is redesignated as a Restricted Subsidiary after April 29, 2010, 100% of the fair market value of such Subsidiary as of the date of such redesignation, plus (d) the aggregate amount returned in cash with respect of Investments (other than Permitted Investments) made after April 29, 2010 whether through interest payments, principal payments, dividends or other distributions, plus (iie) if no Default or Event of Default shall have occurred and be continuing, through the application of net cash proceeds of (A) a substantially concurrent Equity Offering or (B) incurrence for cash of Refinancing Indebtedness, (in the case of the disposition or repayment of any Investment for cash, which Investment constituted a Restricted Payment made after April 29, 2010, an amount equal to the return of capital with respect to such Investment, reduced (Abut not below zero) or (B)by the excess, other than to a Subsidiary if any, of the Company); (4) so long as no Default or Event cost of Default shall have occurred and be continuingthe disposition of such Investment over the gain, repurchases if any, realized by the Company of, or dividends to a Huntsman Parent Company to permit repurchases by a Huntsman Parent Company of, Common Stock of the Company or a Huntsman Parent Company from employees of the Company or any of its Subsidiaries or their authorized representatives upon the death, disability or termination of employment such Restricted Subsidiary in respect of such employees, in an aggregate amount not to exceed $25 million in any calendar year; (5) the redemption or repurchase of any Common Stock of the Company held by a Restricted Subsidiary of the Company which obtained such Common Stock directly from the Company; (6) distributions to any Huntsman Parent Company in accordance with the Tax Sharing Agreement; (7) payments to any Huntsman Parent Company for legal, audit and other expenses directly relating to the administration of such Huntsman Parent Company not to exceed $10.0 million in any fiscal year; (8) the payment of consideration by a third party to equity holders of the Company; (9) additional Restricted Payments in an aggregate amount not to exceed $225 million since the Designated Date; (10) the payment of dividends or distributions to any Huntsman Parent Company which are contemporaneously applied to pay dividends on common stock of the Huntsman Public Parent at a rate not to exceed $0.40 per share per annum (such amount to be appropriately adjusted to reflect any stock split, reverse stock split, stock dividend, stock issuance or similar transactions made after the Designated Date so that the aggregate amount of dividends payable after such transaction is the same as the amount payable immediately prior to such transaction); (11) payments of dividends on Disqualified Capital Stock issued in accordance with Section 4.12; and (12) if the Consolidated Leverage Ratio of the Company, calculated after giving pro forma effect to any repurchase under this clause (12), is less than 2.5 to 1.0, then the Company may repurchase or dividend to a Huntsman Parent Company to repurchase, up to an aggregate of $250 million of Common Stock of a Huntsman Parent Company. In determining the aggregate amount of Restricted Payments made subsequent to the Designated Date in accordance with clause (iii) of the immediately preceding paragraph, cash amounts expended pursuant to clauses (1), (2), (3)(ii)(A) and (4) shall be included in such calculation and Restricted Payments made pursuant to the other clauses of this paragraph shall not be so included. Not later than the date of making any Restricted Payment pursuant to clause (iii) of the second preceding paragraph or clause (9) of the immediately preceding paragraph, the Company shall deliver to the Trustee an officers’ certificate stating that such Restricted Payment complies with this Indenture and setting forth in reasonable detail the basis upon which the required calculations were computed, which calculations may be based upon the Company’s quarterly financial statements last provided to the Trustee pursuant to Section 4.09disposition.
Appears in 1 contract
Limitation on Restricted Payments. The Company shall not, and shall not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, make any Restricted Payment if Payment, unless (i) at the time of such Restricted Payment or and immediately after giving effect theretoto the proposed Restricted Payment, (i) a no Default or an Event of Default shall have occurred and be continuing, or would occur as a consequence thereof, (ii) either the Company is not able would (a) at the time of such Restricted Payment and after giving pro forma effect thereto, have a Consolidated Adjusted Net Worth exceeding $200 million or (b) be permitted to incur at least $1.00 of additional Indebtedness other than Permitted Indebtedness pursuant to the Consolidated Operating Cash Flow Ratio test set forth in compliance with Section 4.129.12, or and (iii) at the aggregate amount time of Restricted Payments including such and immediately after giving effect to the proposed Restricted Payment made after June 30(the value of any such payment if other than cash, 2006, including, the Fair Market Value as determined reasonably and in good faith by the Board board of Managers directors of the Company and evidenced by a Board Resolution), the aggregate amount of non-cash amounts constituting all Restricted Payments (including Restricted Payments permitted by clauses (b), (j), (l) and (m) of the next succeeding paragraph and excluding the other Restricted Payments permitted by such paragraph) declared or made subsequent to the Issue Date shall not exceed the sum of: of (wa) 50% of the cumulative aggregate Consolidated Net Operating Income (or or, if cumulative such aggregate Consolidated Net Operating Income shall be is a lossdeficit, minus 100% of such lossdeficit) of the Company earned for the period (taken as one accounting period) from June 30, 2006 through the last first day of the last full fiscal quarter immediately preceding that begins after the date 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 occurs (the “Reference Date”) (treating such period as a single accounting period); plus (xb) 100% of the aggregate net proceeds, including cash proceeds and the fair market value of property other than cash (as determined in good faith by the board of directors of the Company and evidenced by a Board Resolution), received by the Company since the Issue Date, from any Person other than a Subsidiary of the Company as a result of the issuance of Capital Stock (other than any Disqualified Capital Stock) of the Company including such Capital Stock issued upon conversion of Indebtedness or upon exercise of warrants and any contributions to the capital of the Company (other than Excluded Contributions) received by the Company from any such Person plus (c) to the extent that any Restricted Investment that was made after the Issue Date, is sold for cash or otherwise liquidated or repaid for cash, the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any). For purposes of any calculation pursuant to the preceding sentence which is required to be made within 60 days after the declaration of a dividend by the Company, such dividend shall be deemed to be paid at the date of declaration. The foregoing provisions of this covenant shall not be violated by reason of (a) the payment of any dividends or distributions payable solely in shares of the Company's Capital Stock (other than a Subsidiary of the Company) from the issuance and sale subsequent to June 30, 2006 of Qualified Capital Stock of the Company (other than Specified Venture Disqualified Capital Stock) or debt securities of in options, warrants or other rights to acquire the Company that are, upon issuance, convertible into or exchangeable for Qualified Company's Capital Stock of the Company(other than Disqualified Capital Stock), but only when and to the extent such debt securities are converted into or exchanged for Qualified Capital Stock of the Company; 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 the Company from a holder of the Company’s Capital Stock subsequent to June 30, 2006; plus (z) $400 million. Notwithstanding the foregoing, the provisions set forth in the immediately preceding paragraph shall not prohibit: (1b) the payment of any dividend within 60 days after the date of declaration thereof if, at such date of declaration, such dividend if payment complied with the dividend would have been permitted provisions described above, (c) the payment of cash dividends or the making of loans or advances to Xxxxx USA after October 1, 2002, in an amount sufficient to enable Xxxxx USA to make cash payments of interest or dividends required to be made in respect of the Exchangeable Preferred Stock or the Exchange Debentures in accordance with the terms thereof in effect on the date of declaration; this Indenture, (2d) the acquisition payment of cash dividends or the making of loans or advances in an amount sufficient to enable Xxxxx USA to make payments required to be made in respect of the 10/7//8% Notes in accordance with the terms thereof in effect on the date of this Indenture, (e) the retirement of any shares of the Company's Capital Stock in exchange for, or out of the Companyproceeds of, either (i) solely in exchange for shares of Qualified Capital Stock of the Company or (ii) if no Default or Event of Default shall have occurred and be continuing, through the application of net cash proceeds of a substantially concurrent Equity Offering sale (other than to a Subsidiary of the Company); ) of, other shares of its Capital Stock (3other than Disqualified Capital Stock) or options, warrants or other rights to purchase the Company's Capital Stock (other than Disqualified Capital Stock) and the declaration and payment of dividends on such new Capital Stock in an aggregate amount no greater than the amount of dividends declarable and payable on such retired Capital Stock immediately prior to such retirement, (f) the acquisition or repayment of any Indebtedness of Chevron Payment, (g) the Company that is subordinate or junior in right of payment to AOC Payment, (h) the Notes either Gulf Payments, (i) solely other Restricted Payments in exchange for shares an aggregate amount not to exceed $50 million, (j) the making of Qualified any payment in redemption of Capital Stock of the CompanyCompany or Xxxxx USA or options to purchase such Capital Stock granted to officers or employees of the Company or Xxxxx USA pursuant to any stock option, stock purchase or (ii) if no Default other stock plan approved by the board of directors of the Company or Event Xxxxx USA in connection with the severance or termination of Default shall have occurred and be continuing, through officers or employees not to exceed $8 million per annum or the application payment of net cash proceeds dividends or the making of (A) a substantially concurrent Equity Offering loans or (B) incurrence for cash of Refinancing Indebtednessadvances to Xxxxx USA to permit it to make such payments, (k) the declaration and payment of dividends to holders of any class or series of preferred stock of the Company and its Restricted Subsidiaries issued in accordance with Section 9.12, (l) the case payment of (A) or (B)dividends on the Company's Common Stock, other than to a Subsidiary following the first public offering of the Company)'s or Xxxxx USA's Common Stock after the Issue Date, of up to 6% per annum of the net proceeds received by the Company in such public offering or the payment of funds to Xxxxx USA in amounts necessary to permit Xxxxx USA to make such payments to the extent the proceeds of such offering were contributed to the equity capital of the Company; (4m) so long as no Default or Event of Default shall have occurred and be continuingcontinuing (or would result therefrom), repurchases by the Company ofpayment to Xxxxx USA (in the form of dividends, loans, advances or dividends to a Huntsman Parent Company to permit repurchases by a Huntsman Parent Company of, Common Stock otherwise) of 100% of the Company or a Huntsman Parent Company from employees proceeds of Indebtedness incurred pursuant to clause (xv) of the Company definition of "Permitted Indebtedness" to redeem, repurchase, defease or any of its Subsidiaries otherwise acquire or their authorized representatives upon retire for value the death10/7//8% Notes; provided, disability or termination of employment however, that at the time of such employeesredemption, in an aggregate amount not to exceed $25 million in any calendar year; (5) repurchase, defeasance or other acquisition or retirement for value, the redemption or repurchase of any Common Stock of the Company held by a Restricted Subsidiary of the Company which obtained such Common Stock directly from the Company; (6) distributions to any Huntsman Parent Company in accordance with the Tax Sharing Agreement; (7) payments to any Huntsman Parent Company for legal, audit and other expenses directly relating to the administration of such Huntsman Parent Company not to exceed $10.0 million in any fiscal year; (8) the payment of consideration by a third party to equity holders Consolidated Operating Cash Flow Ratio of the Company, after giving effect to the incurrence of Indebtedness in connection therewith, would be greater than 1.75 to 1.0; (9) additional Restricted Payments in an aggregate amount not to exceed $225 million since the Designated Date; (10n) the payment of dividends or distributions the making of loans or advances by the Company to any Huntsman Parent Company which are contemporaneously applied to pay dividends on common stock of the Huntsman Public Parent at a rate Xxxxx USA in an amount not to exceed $0.40 per share per annum (such amount 2 million in any fiscal year for costs and expenses incurred by Xxxxx USA in its capacity as a holding company or for services rendered to be appropriately adjusted to reflect any stock split, reverse stock split, stock dividend, stock issuance or similar transactions made after the Designated Date so that the aggregate amount of dividends payable after such transaction is the same as the amount payable immediately prior to such transaction)Company; (11o) payments Restricted Investments not to exceed at any one time an aggregate of dividends on Disqualified Capital Stock issued in accordance with Section 4.12$75 million; and (12p) if the Consolidated Leverage Ratio Restricted Investments made with Excluded Contributions. The board of directors of the CompanyCompany may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default or Event of Default; provided that, calculated in no event shall the business currently operated by the Company or Xxxxx USA be transferred to or held by an Unrestricted Subsidiary, unless after giving pro forma effect to any repurchase under this clause (12), is less than 2.5 to 1.0, then such transfer the Company may repurchase or dividend to a Huntsman Parent Company to repurchase, up to could have incurred an aggregate additional $1.00 of $250 million of Common Stock of a Huntsman Parent Company. In determining the aggregate amount of Restricted Payments made subsequent to the Designated Date in accordance with clause (iii) of the immediately preceding paragraph, cash amounts expended pursuant to clauses (1), (2), (3)(ii)(A) and (4) shall be included in such calculation and Restricted Payments made Indebtedness pursuant to the other clauses Consolidated Operating Cash Flow Ratio test set forth in Section 9.12. For purposes of making such determination, all outstanding Investments by the Company and its Restricted Subsidiaries (except to the extent repaid in cash) in the Subsidiary so designated 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 paragraph Section 9.09. All such outstanding Investments shall not be so included. Not later than the date of making any Restricted Payment pursuant deemed to clause (iii) of the second preceding paragraph or clause (9) of the immediately preceding paragraph, the Company shall deliver constitute Investments in an amount equal to the Trustee an officers’ certificate stating that greatest of (x) the net book value of such Investments at the time of such designation, (y) the fair market value of such Investments at the time of such designation, and (z) the original fair market value of such Investments at the time they were made. Such designation shall only be permitted if such Restricted Payment complies with this Indenture would be permitted at such time and setting forth in reasonable detail if such Restricted Subsidiary otherwise meets the basis upon which the required calculations were computed, which calculations may be based upon the Company’s quarterly financial statements last provided to the Trustee pursuant to Section 4.09definition of an Unrestricted Subsidiary.
Appears in 1 contract
Limitation on Restricted Payments. The Company shall not, and shall not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, make any Restricted Payment if at the time of such Restricted Payment or immediately Payment, if, after giving effect thereto, thereto (i) a Default or an Event of Default Default, shall have occurred and be continuing, continuing or (ii) the Company is not able to incur at least $1.00 of additional Indebtedness other than Permitted Indebtedness in compliance with Section 4.12, or (iii) the aggregate amount of all Restricted Payments including made and the amount of Investments then outstanding pursuant to clause (vii)(y) under Section 1016 by the Company and its Restricted Subsidiaries (the amount expended, distributed or invested for such proposed Restricted Payment made after June 30purposes, 2006if other than in cash, including, the Fair Market Value as to be determined reasonably and in good faith by the Board of Managers Directors of the Company and evidenced by a Board Resolution) from and after the date of non-cash amounts constituting Restricted Payments the Indenture shall exceed the sum of: of (wa) 50% of Consolidated Net Income of the Company accrued for the period (taken as one accounting period) commencing with the date of the Indenture to and including the date of such calculation (or, in the event Consolidated Net Income for such period is a deficit, then minus 100% of such deficit); (b) 50% of the cumulative Consolidated Net Income (or if cumulative Consolidated Net Income shall be a loss, minus 100% 1) increase in depreciation expense resulting from the application of such loss) APB 16 purchase accounting to the acquisition of the Company earned from June 30in 1990, 2006 through the last day and (2) amortization of goodwill and deferred financing costs existing as of the last full fiscal quarter immediately preceding date of the date Indenture, in each case, for the Restricted Payment occurs period specified in clause (the “Reference Date”a) above; (treating such period as a single accounting period); plus (xc) 100% of the aggregate net cash proceeds proceeds, including marketable securities, received by the Company from any Person (other than a Subsidiary of the Company) or Holding from the issuance and or sale subsequent to June 30, 2006 of Qualified Capital Stock of the Company (other than Specified Venture Capital Stock) or debt securities of the Company that are, upon issuance, convertible into or exchangeable for Qualified Capital Stock of the Company, but only when and to the extent such debt securities are converted into or exchanged for Qualified Capital Stock of the Company; 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 the Company from a holder of the Company’s Capital Stock subsequent to June 30, 2006; plus (z) $400 million. Notwithstanding the foregoing, the provisions set forth in the immediately preceding paragraph shall 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) the acquisition of any shares of Capital Stock of the Company, either (i) solely in exchange for shares of Qualified Capital Stock of the Company or (ii) if no Default or Event of Default shall have occurred and be continuing, through the application of net cash proceeds of a substantially concurrent Equity Offering (other than to a Subsidiary of the Company or Holding, as the case may be) of its Capital Stock (other than Redeemable Stock) or any convertible debt securities that have been converted into shares of Capital Stock (other than Redeemable Stock), from and after the date of this Indenture, provided that, in the case of any issuance or sale by Holding such net cash proceeds are contributed as a capital contribution in exchange for common stock of the Company; (d) the aggregate amount received by the Company or its Restricted Subsidiaries from an Unrestricted Subsidiary (excluding amounts received by the Company or any Restricted Subsidiary from an Unrestricted Subsidiary which represents a repayment of the principal portion of any loan or advance or any return of contributed capital); (3e) the acquisition or repayment if there is a redesignation of any Indebtedness of the Company that is subordinate or junior in right of payment to the Notes either (i) solely in exchange for shares of Qualified Capital Stock Unrestricted Subsidiaries as Restricted Subsidiaries of the Company, or such aggregate amount of the net reduction in Investments in clause (iivii) if no Default or Event of Default shall have occurred and be continuing, through the application of net cash proceeds of (A) a substantially concurrent Equity Offering or (B) incurrence for cash of Refinancing Indebtedness, (Section 1016 not to exceed in the case of any Unrestricted Subsidiaries the amount of Restricted Investments previously made by the Company or any Restricted Subsidiary of the Company in such Unrestricted Subsidiary which amount was included in the calculation of the amount of Restricted Payments; and (Af) $10,000,000. The foregoing clause (ii) will not prevent (a) the payment of any dividend on Capital Stock within 60 days after the date of its declaration if such dividend could have been made on the date of its declaration in compliance with the foregoing provisions, (b) the purchase, redemption or retirement or other acquisition of Capital Stock in exchange for or out of the proceeds of a substantially concurrent issue and sale (B), other than to a Subsidiary Subsidiary) of other shares of Capital Stock (other than Redeemable Stock) of the Company); , (4c) so long as no Default or Event of Default shall have occurred and be continuing, repurchases cash dividends paid to Holding which dividends are used by the Company of, or dividends Holding to a Huntsman Parent Company to permit repurchases by a Huntsman Parent Company of, Common repurchase Capital Stock of Holding from officers and employees (or their estates) of Holding, the Company or a Huntsman Parent Company from employees of the Company or any of its Subsidiaries or their authorized representatives upon the death, disability or termination of employment of such employees, in an aggregate amount not officers and employees to exceed $25 million in any calendar year; (5) the redemption or repurchase of any Common Stock extent required by the terms of the Company held by a Restricted Subsidiary Stockholders' Agreement, including any extension of the Company which obtained such Common Stock directly from Stockholders' Agreement on substantially the Company; (6) distributions to any Huntsman Parent Company same terms and conditions, as in accordance with effect on the Tax Sharing Agreement; (7) payments to any Huntsman Parent Company for legal, audit and other expenses directly relating to the administration of such Huntsman Parent Company not to exceed $10.0 million in any fiscal year; (8) the payment of consideration by a third party to equity holders date of the CompanyIndenture; (9) additional Restricted Payments in an aggregate amount not to exceed $225 million since the Designated Date; (10) the payment of dividends or distributions to any Huntsman Parent Company which are contemporaneously applied to pay dividends on common stock of the Huntsman Public Parent at a rate not to exceed $0.40 per share per annum (such amount to be appropriately adjusted to reflect any stock splitprovided, reverse stock splithowever, stock dividend, stock issuance or similar transactions made after the Designated Date so that the aggregate amount of all such repurchases in any fiscal year of the Company does not exceed $5,000,000; (d) cash dividends payable after paid to Holding which dividends are used by Holding to repurchase shares of its Capital Stock from participants who are distributed such transaction shares from the ESOP to the extent required by the terms thereof as in effect on the date of the Indenture; (e) cash dividends paid to Holding out of the net proceeds to the Company of any benefits paid pursuant to the terms of the Life Insurance Policies; provided, however, that such net proceeds shall be first used to repurchase Capital Stock of Holding from the estate of such former officer or employee if such repurchase is required by the same as ESOP, the Stockholders' Agreement or any other agreement and provided, further, that the amount payable immediately prior to of such transaction); (11) payments of dividends on Disqualified Capital Stock issued dividend shall be excluded in accordance with Section 4.12; and (12) if the Consolidated Leverage Ratio of the Company, calculated after giving pro forma effect to any repurchase under this clause (12), is less than 2.5 to 1.0, then the Company may repurchase or dividend to a Huntsman Parent Company to repurchase, up to an aggregate of $250 million of Common Stock of a Huntsman Parent Company. In determining the aggregate amount calculation of Restricted Payments made subsequent to the Designated Date in accordance with for purposes of clause (iiiii) of the immediately preceding paragraph; (f) the purchase, cash amounts expended pursuant to clauses redemption, retirement or other acquisition of any Indebtedness with the Net Proceeds from Asset Dispositions as permitted under Section 1013; (g) the exchanging, refinancing or refunding of Subordinated Indebtedness through the issuance of Subordinated Indebtedness so long as (1), ) the principal amount of the new Subordinated Indebtedness to be issued does not exceed the principal amount (2), (3)(ii)(A) plus any premium and (4) shall be included in such calculation and Restricted Payments made pursuant to the other clauses of this paragraph shall not be so included. Not later than the date of making any Restricted Payment pursuant to clause (iiiconsent payments required) of the second preceding paragraph Subordinated Indebtedness so exchanged, refinanced or clause refunded and (92) the Subordinated Indebtedness to be issued does not have a final maturity or mandatory redemption payments prior to the earlier of the immediately preceding paragraphfinal maturity of the Subordinated Indebtedness being so exchanged, refinanced or refunded or the Company shall deliver to stated maturity of the Trustee an officers’ certificate stating Notes; (h) any securities or other Investments received in connection with any sale or other disposition of property or assets, including any Asset Disposition that such Restricted Payment complies with this Indenture Section 1013; and setting forth (i) Investments in reasonable detail connection with a Financing Disposition by or to any Receivables Entity, including Investments of funds held in accounts permitted or required by the basis upon which the required calculations were computed, which calculations may be based upon the Company’s quarterly financial statements last provided to the Trustee pursuant to Section 4.09arrangements governing such Financing Disposition or any related Indebtedness.
Appears in 1 contract
Samples: Jorgensen Earle M Co /De/
Limitation on Restricted Payments. The Company Without the approval of the --------------------------------- holders of 66 2/3% of the shares of Series C Preferred Stock then outstanding, the Corporation (i) shall not, directly or indirectly, declare or pay any dividend, or make any distribution, in respect of its Capital Stock or to the holders thereof (including pursuant to a merger or consolidation of the Corporation, but excluding any dividends or distributions payable solely in shares of Junior Securities (other than Disqualified Stock) or in options, warrants or other rights to acquire Junior Securities (other than Disqualified Stock)), and (ii) shall not, and shall not cause or permit any Subsidiary of its Restricted Subsidiaries the Corporation to, directly or indirectly, make purchase, redeem or otherwise acquire or retire for value (a) any Restricted Payment if at Capital Stock of the time Corporation or (b) any options, warrants, or rights to acquire shares of such Restricted Payment or immediately after giving effect theretoCapital Stock of the Corporation, (each of Clause (i) and (ii) being a Default "Restricted Payment"), unless: (1) no breach of a covenant contained in Section 3 hereof or an Event this Section 5, and no event that with the lapse of Default time or the giving of notice, or both, would constitute a breach of a covenant contained in Section 3 hereof or this Section 5, shall have occurred and be continuingcontinuing and (2) upon giving effect to such Restricted Payment, the aggregate of all Restricted Payments (ii) the Company is not able to incur at least $1.00 of additional Indebtedness other than Permitted Indebtedness Restricted Payments referred to in compliance with Section 4.12items (i), or (iii) the aggregate amount of Restricted Payments including such proposed Restricted Payment made after June 30, 2006, including, the Fair Market Value as determined reasonably and in good faith by the Board of Managers (v) of the Company of non-cash amounts constituting Restricted Payments shall next sentence) following the Closing, does not exceed the sum of: of (wa) 50% of the cumulative Consolidated Net Income of the Corporation (or if cumulative Consolidated Net Income shall be a lossnegative, minus 100% of such lossthe cumulative deficit) of from the Company earned from June 30, 2006 Closing through the last day of the last full fiscal quarter immediately preceding for which quarterly or annual financial statements of the date the Restricted Payment occurs Corporation are available, and (the “Reference Date”) (treating such period as a single accounting period); plus (xb) 100% of the aggregate net cash proceeds received by proceeds, including the Company fair value of property, to the Corporation from any Person the issuance of Capital Stock (other than Disqualified Stock) of the Corporation and options, warrants or other rights to acquire Capital Stock (other than Disqualified Stock) of the Corporation (other than to a Subsidiary of the CompanyCorporation) from and the issuance and sale subsequent to June 30, 2006 principal amount (or accreted value) of Qualified Debt of the Corporation that has been converted into Capital Stock of the Company (other than Specified Venture Capital Disqualified Stock) or debt securities of the Company that areCorporation (other than Debt held, upon issuanceprior to such conversion, convertible into or exchangeable for Qualified Capital Stock by a Subsidiary of the Company, but only when and to Corporation) after the extent such debt securities are converted into or exchanged for Qualified Capital Stock of the Company; 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 the Company from a holder of the Company’s Capital Stock subsequent to June 30, 2006; plus (z) $400 millionClosing. Notwithstanding the foregoing, the provisions set forth Corporation and any of its Subsidiaries (i) may declare or pay any dividend, or make any distribution, in respect of the Series C Preferred Stock or to the holders thereof and may purchase, redeem or otherwise acquire or retire for value any Series C Preferred Stock, (ii) may purchase, redeem, acquire or retire Junior Securities in exchange for, or out of the proceeds of, the substantially concurrent issue of Junior Securities, except in each case to the extent that cash or any other property is to be paid or distributed by or on behalf of the Corporation in connection with such transaction, (iii) may make payments of up to $100,000 in any fiscal year to the extent necessary to pay the operating expenses of the parent entity of the Corporation, (iv) may purchase, redeem or otherwise acquire or retire for value shares of the Corporation's Capital Stock or options on such shares from officers or employees or former officers or employees of the Corporation or any Subsidiary thereof (or their estates or beneficiaries under their estates) upon death, disability, retirement or termination of employment of any such Person pursuant to the terms of any agreement under which such shares or options were issued, in an amount not in excess of $1,000,000 in any twelve-month period, (v) may purchase, redeem or otherwise acquire or retire for value shares of the Corporation's Capital Stock provided that the Corporation shall substantially concurrently redeem outstanding Series C Preferred Stock in the immediately preceding paragraph same proportion as Capital Stock held by Xxxxxx Stockholders is so purchased, redeemed or otherwise acquired or retired for value at such time. The foregoing provision shall not prohibit: (1) be violated by reason of the payment of any dividend within 60 days after declaration thereof if at the declaration date of declaration of such dividend if the dividend payment would have been permitted on the date of declaration; (2) the acquisition of any shares of Capital Stock of the Company, either (i) solely in exchange for shares of Qualified Capital Stock of the Company or (ii) if no Default or Event of Default shall have occurred and be continuing, through the application of net cash proceeds of a substantially concurrent Equity Offering (other than to a Subsidiary of the Company); (3) the acquisition or repayment of any Indebtedness of the Company that is subordinate or junior in right of payment to the Notes either (i) solely in exchange for shares of Qualified Capital Stock of the Company, or (ii) if no Default or Event of Default shall have occurred and be continuing, through the application of net cash proceeds of (A) a substantially concurrent Equity Offering or (B) incurrence for cash of Refinancing Indebtedness, (in the case of (A) or (B), other than to a Subsidiary of the Company); (4) so long as no Default or Event of Default shall have occurred and be continuing, repurchases by the Company of, or dividends to a Huntsman Parent Company to permit repurchases by a Huntsman Parent Company of, Common Stock of the Company or a Huntsman Parent Company from employees of the Company or any of its Subsidiaries or their authorized representatives upon the death, disability or termination of employment of such employees, in an aggregate amount not to exceed $25 million in any calendar year; (5) the redemption or repurchase of any Common Stock of the Company held by a Restricted Subsidiary of the Company which obtained such Common Stock directly from the Company; (6) distributions to any Huntsman Parent Company in accordance complied with the Tax Sharing Agreement; (7) payments to any Huntsman Parent Company for legal, audit and other expenses directly relating to the administration of such Huntsman Parent Company not to exceed $10.0 million in any fiscal year; (8) the payment of consideration by a third party to equity holders of the Company; (9) additional Restricted Payments in an aggregate amount not to exceed $225 million since the Designated Date; (10) the payment of dividends or distributions to any Huntsman Parent Company which are contemporaneously applied to pay dividends on common stock of the Huntsman Public Parent at a rate not to exceed $0.40 per share per annum (such amount to be appropriately adjusted to reflect any stock split, reverse stock split, stock dividend, stock issuance or similar transactions made after the Designated Date so that the aggregate amount of dividends payable after such transaction is the same as the amount payable immediately prior to such transaction); (11) payments of dividends on Disqualified Capital Stock issued in accordance with Section 4.12; and (12) if the Consolidated Leverage Ratio of the Company, calculated after giving pro forma effect to any repurchase under this clause (12), is less than 2.5 to 1.0, then the Company may repurchase or dividend to a Huntsman Parent Company to repurchase, up to an aggregate of $250 million of Common Stock of a Huntsman Parent Company. In determining the aggregate amount of Restricted Payments made subsequent to the Designated Date in accordance with clause (iii) of the immediately preceding paragraph, cash amounts expended pursuant to clauses (1), (2), (3)(ii)(A) and (4) shall be included in such calculation and Restricted Payments made pursuant to the other clauses of this paragraph shall not be so included. Not later than the date of making any Restricted Payment pursuant to clause (iii) of the second preceding paragraph or clause (9) of the immediately preceding paragraph, the Company shall deliver to the Trustee an officers’ certificate stating that such Restricted Payment complies with this Indenture and setting forth in reasonable detail the basis upon which the required calculations were computed, which calculations may be based upon the Company’s quarterly financial statements last provided to the Trustee pursuant to Section 4.09foregoing provision.
Appears in 1 contract
Samples: Stockholders Agreement (Commercial Aggregates Transportation & Sales LLC)
Limitation on Restricted Payments. (a) The Company shall not, and shall not cause or permit any of its Restricted Subsidiaries toSubsidiary, directly or indirectly, to make any a Restricted Payment if at the time of the Company or such Restricted Payment or immediately after giving effect thereto, Subsidiary makes such Restricted Payment: (i1) a Default or an Event of Default shall have occurred and be continuing, continuing (iior would result therefrom); (2) the Company is not able to incur at least Incur an additional $1.00 of additional Indebtedness other than Permitted Indebtedness in compliance with pursuant to paragraph (a) of Section 4.12, 1010; or (iii3) the aggregate amount of such Restricted Payment and all other Restricted Payments including such proposed Restricted Payment made after June 30, 2006, including, since the Fair Market Value as determined reasonably and in good faith by the Board of Managers of the Company of non-cash amounts constituting Restricted Payments shall Issue Date would exceed the sum of: (wA) 50% of the cumulative Consolidated Net Income accrued during the period (treated as one accounting period) from the beginning of the fiscal quarter ended August 31, 1997 to the end of the most recent fiscal quarter prior to the date of such Restricted Payment for which consolidated financial statements of the Company shall have been filed with the SEC or if cumulative provided to the Noteholders pursuant to the Indenture (or, in case such Consolidated Net Income accrued during such period (treated as one accounting period) shall be a lossdeficit, minus 100% of such loss) of the Company earned from June 30, 2006 through the last day of the last full fiscal quarter immediately preceding the date the Restricted Payment occurs (the “Reference Date”) (treating such period as a single accounting perioddeficit); plus (xB) 100% of the aggregate net cash proceeds Net Cash Proceeds received by the Company from any Person the issuance or sale of its Capital Stock (other than a Subsidiary of the CompanyDisqualified Stock) from the issuance and sale subsequent to June 30, 2006 of Qualified Capital Stock of the Company Issue Date (other than Specified Venture Capital Stock) an issuance or debt securities of the Company that are, upon issuance, convertible into or exchangeable for Qualified Capital Stock of the Company, but only when and to the extent such debt securities are converted into or exchanged for Qualified Capital Stock of the Company; 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 the Company from a holder of the Company’s Capital Stock subsequent to June 30, 2006; plus (z) $400 million. Notwithstanding the foregoing, the provisions set forth in the immediately preceding paragraph shall 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) the acquisition of any shares of Capital Stock of the Company, either (i) solely in exchange for shares of Qualified Capital Stock of the Company or (ii) if no Default or Event of Default shall have occurred and be continuing, through the application of net cash proceeds of a substantially concurrent Equity Offering (other than sale to a Subsidiary of the Company); (3) the acquisition or repayment of any Indebtedness of the Company that is subordinate or junior in right of payment to the Notes either (i) solely in exchange for shares of Qualified Capital Stock of the Company, or (ii) if no Default or Event of Default shall have occurred and be continuing, through the application of net cash proceeds of (A) a substantially concurrent Equity Offering or (B) incurrence for cash of Refinancing Indebtedness, (in the case of (A) or (B), other than an issuance or sale to an employee stock ownership plan or to a Subsidiary of the Company); (4) so long as no Default or Event of Default shall have occurred and be continuing, repurchases trust established by the Company of, or dividends to a Huntsman Parent Company to permit repurchases by a Huntsman Parent Company of, Common Stock of the Company or a Huntsman Parent Company from employees of the Company or any of its Subsidiaries or for the benefit of their authorized representatives upon the death, disability or termination of employment of such employees, in an aggregate amount not to exceed $25 million in any calendar year); (5C) the redemption or repurchase of any Common Stock amount by which Indebtedness of the Company held is reduced on the Company's balance sheet upon the conversion or exchange (other than by a Restricted Subsidiary of the Company which obtained such Common Stock directly from the Company; (6) distributions to any Huntsman Parent Company in accordance with the Tax Sharing Agreement; (7) payments to any Huntsman Parent Company for legal, audit and other expenses directly relating subsequent to the administration Issue Date, of such Huntsman Parent Company not to exceed $10.0 million in any fiscal year; (8) the payment of consideration by a third party to equity holders Indebtedness of the Company; Company convertible or exchangeable for Capital Stock (9other than Disqualified Stock) additional Restricted Payments in an aggregate amount not to exceed $225 million since the Designated Date; (10) the payment of dividends or distributions to any Huntsman Parent Company which are contemporaneously applied to pay dividends on common stock of the Huntsman Public Parent at a rate not to exceed $0.40 per share per annum Company (such amount to be appropriately adjusted to reflect any stock split, reverse stock split, stock dividend, stock issuance or similar transactions made after less the Designated Date so that the aggregate amount of dividends payable after any cash, or the fair value of any other property, distributed by the Company upon such transaction is the same as the amount payable immediately prior to such transactionconversion or exchange); (11D) payments an amount equal to the sum of dividends on Disqualified (i) the net reduction in Investments in Unrestricted Subsidiaries resulting from dividends, repayments of loans or advances or other transfers of assets by any Unrestricted Subsidiary to the Company or any Restricted Subsidiary, or the receipt of proceeds by the Company or any Restricted Subsidiary from the sale or other disposition of any portion of the Capital Stock issued of any Unrestricted Subsidiary, in accordance with Section 4.12each case occurring subsequent to the Issue Date, and (ii) the portion (proportionate to the Company's equity interest in such Subsidiary) of the fair market value of the net assets of an Unrestricted Subsidiary at the time such Unrestricted Subsidiary is designated a Restricted Subsidiary; PROVIDED, HOWEVER, that the foregoing sum shall not exceed, in the case of any Unrestricted Subsidiary, the amount of Investments previously made (and treated as a Restricted Payment) by the Company or any Restricted Subsidiary in such Unrestricted Subsidiary; and (12E) if the Consolidated Leverage Ratio of the Company, calculated after giving pro forma effect to any repurchase under this clause (12), is less than 2.5 to 1.0, then the Company may repurchase or dividend to a Huntsman Parent Company to repurchase, up to an aggregate of $250 million of Common Stock of a Huntsman Parent Company. In determining the aggregate amount of Restricted Payments made subsequent to the Designated Date in accordance with clause (iii) of the immediately preceding paragraph, cash amounts expended pursuant to clauses (1), (2), (3)(ii)(A) and (4) shall be included in such calculation and Restricted Payments made pursuant to the other clauses of this paragraph shall not be so included. Not later than the date of making any Restricted Payment pursuant to clause (iii) of the second preceding paragraph or clause (9) of the immediately preceding paragraph, the Company shall deliver to the Trustee an officers’ certificate stating that such Restricted Payment complies with this Indenture and setting forth in reasonable detail the basis upon which the required calculations were computed, which calculations may be based upon the Company’s quarterly financial statements last provided to the Trustee pursuant to Section 4.0940 million.
Appears in 1 contract
Samples: Wyman Gordon Co
Limitation on Restricted Payments. The Company shall (i) may not, and shall may not cause or permit any Subsidiary of its Restricted Subsidiaries the Company to, directly or indirectly, declare orpay any dividend or make any Restricted Payment if at distribution (including any payment in connection with any merger or consolidation derived from assets of the time Company or any Subsidiary) in respect of its Capital Stock or to the holders thereof, excluding (a) any dividends or distributions by the Company payable solely in shares of its Common Stock (other than Redeemable Stock) or in options, warrants or other rights to acquire its Common Stock (other than Redeemable Stock), and (b) in the case of a Subsidiary, dividends or distributions payable (1)to the Company or a Subsidiary and(2) to minority shareholders of such Restricted Payment Subsidiary, provided that at least a pro rata amount is paid to the Company and/or a Subsidiary, as the case may be, and (ii) may not, and may not permit any Subsidiary to, directly or immediately after giving effect theretoindirectly, purchase, redeem, or otherwise acquire or retire for value (a) any Capital Stock of the Company or (b) any options, warrants or other rights to acquire shares of Capital Stock of the Company or any securities convertible or exchangeable into shares of Capital Stock of the Company (each of clauses (i) and (ii) being a Default or "Restricted Payment") if: (1) an Event of Default Default, or an event that with the passing of time or the giving of notice, or both, would constitute an Event of Default, shall have occurred and be continuing, (ii) the Company is not able to incur at least $1.00 of additional Indebtedness other than Permitted Indebtedness in compliance with Section 4.12continuing or would result from such Restricted Payment, or (iii2) upon giving effect to such Restricted Payment, the aggregate amount of all Restricted Payments including such proposed Restricted Payment made after June 30, 2006, including, from the Fair Market Value as determined reasonably and in good faith by the Board date of Managers original issuance of the Company of non-cash amounts constituting Restricted Payments shall exceed Securities exceeds the sum of: of (wa) 5075% of the cumulative Consolidated Net Income (or if cumulative or, in the case Consolidated Net Income shall be a lossnegative, minus less 100% of such lossdeficit) of the Company earned from June 30, 2006 the date of original issuance of the Securities through the last day of the last full fiscal quarter ending immediately preceding the date the such Restricted Payment occurs for which quarterly or annual financial statements are available (the “Reference Date”) (treating such period taken as a single accounting period); plus (xb) 100% of the aggregate net cash proceeds received by the Company from any Person (other than a Subsidiary after the date of original issuance of the Company) Securities, from contributions of capital or the issuance and sale subsequent (other than to June 30, 2006 a Subsidiary) of Qualified Capital Stock (other than Redeemable Stock) of the Company, options, warrants or other rights to acquire Capital Stock (other than Redeemable Stock) of the Company (other than Specified Venture Capital Stock) or debt securities and indebtedness of the Company that are, upon issuance, convertible into or exchangeable for Qualified Capital Stock of the Company, but only when and to the extent such debt securities are has been converted into or exchanged for Qualified Capital Stock (other than Redeemable Stock and other than by or from a Subsidiary) of the Company; 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 the Company from a holder of the Company’s Capital Stock subsequent to June 30, 2006; plus (z) $400 million. Notwithstanding the foregoing, the provisions set forth in the immediately preceding paragraph shall not prohibit: (1) the payment of any dividend within 60 days after the date of declaration original issuance of such dividend if the dividend would have been permitted on Securities. Prior to the date of declaration; (2) the acquisition making of any shares of Capital Stock of the Company, either (i) solely in exchange for shares of Qualified Capital Stock of the Company or (ii) if no Default or Event of Default shall have occurred and be continuing, through the application of net cash proceeds of a substantially concurrent Equity Offering (other than to a Subsidiary of the Company); (3) the acquisition or repayment of any Indebtedness of the Company that is subordinate or junior in right of payment to the Notes either (i) solely in exchange for shares of Qualified Capital Stock of the Company, or (ii) if no Default or Event of Default shall have occurred and be continuing, through the application of net cash proceeds of (A) a substantially concurrent Equity Offering or (B) incurrence for cash of Refinancing Indebtedness, (in the case of (A) or (B), other than to a Subsidiary of the Company); (4) so long as no Default or Event of Default shall have occurred and be continuing, repurchases by the Company of, or dividends to a Huntsman Parent Company to permit repurchases by a Huntsman Parent Company of, Common Stock of the Company or a Huntsman Parent Company from employees of the Company or any of its Subsidiaries or their authorized representatives upon the death, disability or termination of employment of such employees, in an aggregate amount not to exceed $25 million in any calendar year; (5) the redemption or repurchase of any Common Stock of the Company held by a Restricted Subsidiary of the Company which obtained such Common Stock directly from the Company; (6) distributions to any Huntsman Parent Company in accordance with the Tax Sharing Agreement; (7) payments to any Huntsman Parent Company for legal, audit and other expenses directly relating to the administration of such Huntsman Parent Company not to exceed $10.0 million in any fiscal year; (8) the payment of consideration by a third party to equity holders of the Company; (9) additional Restricted Payments in an aggregate amount not to exceed $225 million since the Designated Date; (10) the payment of dividends or distributions to any Huntsman Parent Company which are contemporaneously applied to pay dividends on common stock of the Huntsman Public Parent at a rate not to exceed $0.40 per share per annum (such amount to be appropriately adjusted to reflect any stock split, reverse stock split, stock dividend, stock issuance or similar transactions made after the Designated Date so that the aggregate amount of dividends payable after such transaction is the same as the amount payable immediately prior to such transaction); (11) payments of dividends on Disqualified Capital Stock issued in accordance with Section 4.12; and (12) if the Consolidated Leverage Ratio of the Company, calculated after giving pro forma effect to any repurchase under this clause (12), is less than 2.5 to 1.0, then the Company may repurchase or dividend to a Huntsman Parent Company to repurchase, up to an aggregate of $250 million of Common Stock of a Huntsman Parent Company. In determining the aggregate amount of Restricted Payments made subsequent to the Designated Date in accordance with clause (iii) of the immediately preceding paragraph, cash amounts expended pursuant to clauses (1), (2), (3)(ii)(A) and (4) shall be included in such calculation and Restricted Payments made pursuant to the other clauses of this paragraph shall not be so included. Not later than the date of making any Restricted Payment pursuant to clause (iii) of the second preceding paragraph or clause (9) of the immediately preceding paragraphPayment, the Company shall deliver to the Trustee an officers’ certificate Officers' Certificate setting forth the computations by which the determinations required by clause (2) above were made and stating that no Event of Default, or event that with the passing of time or the giving of notice, or both, would constitute an Event of Default, has occurred and is continuing or will result from such Restricted Payment complies Payment. Notwithstanding the foregoing, so long as no Event of Default, or event that with this Indenture the passing of time or the giving of notice, or both, would constitute an Event of Default, shall have occurred and setting forth be continuing or would result therefrom, (i) the Company and any Subsidiary of the Company may pay any dividend on Capital Stock of any class within 60 days after the declaration thereof if, on the date when the dividend was declared, the Company or such Subsidiary could have paid such dividend in reasonable detail accordance with the basis upon which foregoing provisions; (ii) the required calculations were computedCompany may purchase, which calculations may be based upon redeem, acquire or retire any shares of Capital Stock of the Company solely in exchange for or out of the net proceeds of the substantially concurrent sale (other than from or to a Subsidiary or from or to an employee stock ownership plan financed by loans from the Company or a Subsidiary of the Company’s quarterly financial statements last provided ) of shares of Capital Stock (other than Redeemable Stock) of the Company. Any payment made pursuant to clause (i) or (ii) of this paragraph shall be a Restricted Payment for purposes of calculating aggregate Restricted Payments pursuant to the Trustee pursuant to Section 4.09preceding paragraph.
Appears in 1 contract
Samples: Indenture (Philip Services Corp/De)
Limitation on Restricted Payments. The Company shall will not, and shall not cause or nor will it permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, (i) declare or pay any dividend on, or make any distribution in respect of, or purchase, redeem or otherwise acquire or retire for value, any Capital Stock of the Company other than through the issuance solely of the Company’s own Capital Stock (other than Disqualified Stock), or rights thereto; (ii) make any principal payment on, or redeem, repurchase, defease or otherwise acquire or retire for value prior to scheduled principal payments or maturity, Indebtedness of the Company or any Restricted Subsidiary which is expressly subordinated in right of payment to the Notes (other than Indebtedness Incurred after the issuance of the Notes provided that such repayment, redemption, repurchase, defeasance or other retirement is made substantially concurrent with the receipt of proceeds from the Incurrence of Indebtedness that by its terms is both subordinated in right of payment to the Notes and matures, by sinking fund or otherwise, after April 15, 2012; or (iii) make any Restricted Payment if Investment (such payments or any other actions described in (i), (ii) and (iii) being referred to herein collectively as, “Restricted Payments”) unless (A) at the time of such Restricted Payment or immediately of, and after giving effect theretoto, the proposed Restricted Payment, no Event of Default (i) a Default and no event that, after notice or lapse of time, or both, would become an Event of Default Default) shall have occurred and be continuing, (iiB) the Company is not able to incur at least Incur an additional $1.00 of additional Indebtedness other than Permitted Indebtedness in compliance with pursuant to the first paragraph of the covenant described under Section 4.126.02 herein, or and (iiiC) at the time of, and after giving effect thereto, the sum of the aggregate amount of expended (or with respect to guaranties or similar arrangements the amount then guaranteed) for all such Restricted Payments including (the amount expended for such proposed Restricted Payment made after June 30purposes, 2006if other than in cash, including, the Fair Market Value as to be determined reasonably and in good faith by the Board of Managers Directors of the Company Company, whose determination shall be conclusive and evidenced by a resolution of non-cash amounts constituting Restricted Payments such Board of Directors filed with the Trustee) subsequent to June 30, 1997 shall not exceed the sum of: of (wI) 50% of the cumulative aggregate Consolidated Net Income (or if cumulative or, in case such aggregate Consolidated Net Income shall be a lossdeficit, minus 100% of such lossdeficit) of the Company earned from accrued on a cumulative basis subsequent to June 30, 2006 through the last day of the last full fiscal quarter immediately preceding the date the Restricted Payment occurs 1997, (the “Reference Date”II) (treating such period as a single accounting period); plus (x) 100% of the aggregate net proceeds, including the fair market value of property other than cash proceeds (as determined by the Board of Directors of the Company, whose determination shall be conclusive and evidenced by a resolution of such Board of Directors filed with the Trustee), received by the Company from any Person the issuance or sale, after March 7, 2003, of Capital Stock (other than a Subsidiary of the Company) from the issuance and sale subsequent to June 30, 2006 of Qualified Capital Stock of the Company (other than Specified Venture Capital Disqualified Stock) or debt securities of the Company that are, upon issuance, convertible into or exchangeable for Qualified Capital Stock of the Company, including Capital Stock (other than Disqualified Stock) of the Company issued subsequent to March 7, 2003 upon the conversion of Indebtedness of the Company initially issued for cash, (III) 100% of dividends or distributions (the fair value of which, if other than cash, to be determined by the Board of Directors, in good faith) paid to the Company (or any Restricted Subsidiary) by an Unrestricted Subsidiary, Homebuilding Joint Venture or any other Person in which the Company (or any Restricted Subsidiary), directly or indirectly, has an ownership interest but only when and less than an 80% ownership interest to the extent that such debt securities are converted into dividends or exchanged for Qualified Capital Stock distributions do not exceed the amount of the Company; plus (y) without duplication of loans, advances or capital contributions made to any amounts such entity or Person subsequent to March 7, 2003 and included in clause the calculation of Restricted Payments, and (iii)(x) above, 100% of the aggregate net cash proceeds of any equity contribution received by the Company from a holder of the Company’s Capital Stock subsequent to June 30, 2006; plus (zIV) $400 million. Notwithstanding 40,000,000; provided, however, that the foregoing, the provisions set forth in the immediately preceding paragraph foregoing shall not prohibit: prevent (1aa) the payment of any dividend within 60 days after the date of declaration thereof, if at said date of declaration the making of such dividend if the dividend payment would have been permitted complied with the provisions of this limitation on the date dividends; provided, however, that such dividend shall be included in future calculations of declaration; Restricted Payments, (2bb) the acquisition retirement of any shares of the Company’s Capital Stock by exchange for, or out of proceeds of the substantially concurrent sale of, other shares of its Capital Stock (other than Disqualified Stock); provided, however, that the aggregate net proceeds from such sale shall be excluded from the calculation of the amounts under subclause (II) above, or (cc) the redemption, repayment, repurchase, defeasance or other retirement of Indebtedness with proceeds received from the substantially concurrent sale of shares of the Company, either (i) solely in exchange for shares of Qualified ’s Capital Stock of the Company or (ii) if no Default or Event of Default shall have occurred and be continuing, through the application of net cash proceeds of a substantially concurrent Equity Offering (other than to a Subsidiary of the CompanyDisqualified Stock); (3) the acquisition or repayment of any Indebtedness of the Company that is subordinate or junior in right of payment to the Notes either (i) solely in exchange for shares of Qualified Capital Stock of the Companyprovided however, or (ii) if no Default or Event of Default shall have occurred and be continuing, through the application of net cash proceeds of (A) a substantially concurrent Equity Offering or (B) incurrence for cash of Refinancing Indebtedness, (in the case of (A) or (B), other than to a Subsidiary of the Company); (4) so long as no Default or Event of Default shall have occurred and be continuing, repurchases by the Company of, or dividends to a Huntsman Parent Company to permit repurchases by a Huntsman Parent Company of, Common Stock of the Company or a Huntsman Parent Company from employees of the Company or any of its Subsidiaries or their authorized representatives upon the death, disability or termination of employment of such employees, in an aggregate amount not to exceed $25 million in any calendar year; (5) the redemption or repurchase of any Common Stock of the Company held by a Restricted Subsidiary of the Company which obtained such Common Stock directly from the Company; (6) distributions to any Huntsman Parent Company in accordance with the Tax Sharing Agreement; (7) payments to any Huntsman Parent Company for legal, audit and other expenses directly relating to the administration of such Huntsman Parent Company not to exceed $10.0 million in any fiscal year; (8) the payment of consideration by a third party to equity holders of the Company; (9) additional Restricted Payments in an aggregate amount not to exceed $225 million since the Designated Date; (10) the payment of dividends or distributions to any Huntsman Parent Company which are contemporaneously applied to pay dividends on common stock of the Huntsman Public Parent at a rate not to exceed $0.40 per share per annum (such amount to be appropriately adjusted to reflect any stock split, reverse stock split, stock dividend, stock issuance or similar transactions made after the Designated Date so that the aggregate amount of dividends payable after net proceeds from such transaction is sale shall be excluded from the same as the amount payable immediately prior to such transaction); (11) payments of dividends on Disqualified Capital Stock issued in accordance with Section 4.12; and (12) if the Consolidated Leverage Ratio calculation of the Company, calculated after giving pro forma effect to any repurchase amounts under this clause subclause (12), is less than 2.5 to 1.0, then the Company may repurchase or dividend to a Huntsman Parent Company to repurchase, up to an aggregate of $250 million of Common Stock of a Huntsman Parent Company. In determining the aggregate amount of Restricted Payments made subsequent to the Designated Date in accordance with clause (iiiII) of the immediately preceding paragraph, cash amounts expended pursuant to clauses (1), (2), (3)(ii)(A) and (4) shall be included in such calculation and Restricted Payments made pursuant to the other clauses of this paragraph shall not be so included. Not later than the date of making any Restricted Payment pursuant to clause (iii) of the second preceding paragraph or clause (9) of the immediately preceding paragraph, the Company shall deliver to the Trustee an officers’ certificate stating that such Restricted Payment complies with this Indenture and setting forth in reasonable detail the basis upon which the required calculations were computed, which calculations may be based upon the Company’s quarterly financial statements last provided to the Trustee pursuant to Section 4.09above.
Appears in 1 contract
Samples: Fourth Supplemental Indenture (Standard Pacific Corp /De/)
Limitation on Restricted Payments. The Company shall not, and shall not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, make any Restricted Payment if at the time of if, after giving effect to such Restricted Payment or immediately after giving effect theretoon a pro forma basis, (il) a Default or an Event of Default shall have occurred and be continuing, (ii2) the Company is not able permitted to incur at least $1.00 of additional Indebtedness other than Permitted Indebtedness pursuant to the Debt Incurrence Ratio in compliance with Section 4.124.10, or (3) the aggregate amount of all Restricted Payments made by the Company and its Subsidiaries, including after giving effect to such proposed Restricted Payment, from and after the Issue Date, would exceed the sum of (a) 50% of the aggregate Consolidated Net Income of the Company and its consolidated Subsidiaries for the period (taken as one accounting period) commencing on the first day after the Issue Date, to and including the last day of the fiscal quarter ended immediately prior to the date of each such calculation (or, in the event Consolidated Net Income for such period is a deficit, then minus 100% of such deficit), plus (b) the aggregate Net Cash Proceeds received by the Company from the sale of its Qualified Capital Stock (other than (i) to a Subsidiary of the Company, and (ii) to the extent applied in connection with a Qualified Exchange after the Issue Date), plus (c) the aggregate of cash capital contributions in the form of common equity made to the Company by the Holding Company. The foregoing clauses (2) and (3), however, will not prohibit Permitted Payments. The full amount of any Permitted Payment made pursuant to clause (iv) of the definition of Permitted Payments (but not pursuant to clauses (i), (ii) and (iii) thereof), however, will be deducted in the calculation of the aggregate amount of Restricted Payments including such proposed Restricted Payment available to be made after June 30, 2006, including, the Fair Market Value as determined reasonably and in good faith by the Board of Managers of the Company of non-cash amounts constituting Restricted Payments 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 the Company earned from June 30, 2006 through the last day of the last full fiscal quarter immediately preceding 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 the Company from any Person (other than a Subsidiary of the Company) from the issuance and sale subsequent referred to June 30, 2006 of Qualified Capital Stock of the Company (other than Specified Venture Capital Stock) or debt securities of the Company that are, upon issuance, convertible into or exchangeable for Qualified Capital Stock of the Company, but only when and to the extent such debt securities are converted into or exchanged for Qualified Capital Stock of the Company; plus (y) without duplication of any amounts included in clause (iii)(x3) aboveof this paragraph. The foregoing provisions will not prohibit or be violated by (A) payments to the Holding Company to enable the Holding Company to pay federal, 100% of state or local tax liabilities, not to exceed the aggregate net cash proceeds amount of any equity contribution received by the Company from a holder of the Company’s Capital Stock subsequent to June 30, 2006; plus (z) $400 million. Notwithstanding the foregoing, the provisions set forth in the immediately preceding paragraph shall not prohibit: (1) the payment of any dividend within 60 days after the date of declaration amount of such dividend tax liabilities that would be due from the Company or the Subsidiary Guarantors to the appropriate taxing authority if they were separate taxable entities to the dividend would have been permitted on extent that the date Holding Company has an obligation to satisfy such federal, state or local tax liabilities relating to the operations, assets or capital of declaration; the Company or the Subsidiary Guarantors, plus (2) the acquisition amount of any shares of Capital Stock such tax liabilities that are due from the Holding Company with respect to the Holding Company's ownership of the Company's Capital Stock, as applicable; provided such payment shall either (i) solely in exchange for shares be used by the Holding Company to pay such federal, state or local tax liabilities within 90 days of Qualified Capital Stock its receipt of the Company such payment or (ii) if no Default or Event of Default shall have occurred and be continuing, through the application of net cash proceeds of a substantially concurrent Equity Offering (other than to a Subsidiary of the Company); (3) the acquisition or repayment of any Indebtedness of the Company that is subordinate or junior in right of payment refunded to the Notes either (i) solely in exchange for shares of Qualified Capital Stock of the Companypayee, or (ii) if no Default or Event of Default shall have occurred and be continuing, through the application of net cash proceeds of (A) a substantially concurrent Equity Offering or (B) incurrence for cash of Refinancing Indebtedness, (in the case of (A) or (B), other than to a Subsidiary of the Company); (4) so long as no Default or Event of Default shall have occurred and be continuing, repurchases payment by the Company of, or dividends of a cash dividend on the Issue Date to the Holding Company in an amount of $45.0 million to enable it to pay a Huntsman Parent Company cash distribution to permit repurchases by a Huntsman Parent Company of, Common Stock the securityholders of the Holding Company or a Huntsman Parent Company from employees as contemplated under the caption "Use of Proceeds" in the Company or any of its Subsidiaries or their authorized representatives upon the death, disability or termination of employment of such employees, in an aggregate amount not to exceed $25 million in any calendar year; (5) the redemption or repurchase of any Common Stock of the Company held by a Restricted Subsidiary of the Company which obtained such Common Stock directly from the Company; (6) distributions to any Huntsman Parent Company in accordance with the Tax Sharing Agreement; (7) payments to any Huntsman Parent Company for legal, audit and other expenses directly relating to the administration of such Huntsman Parent Company not to exceed $10.0 million in any fiscal year; (8) the payment of consideration by a third party to equity holders of the Company; (9) additional Restricted Payments in an aggregate amount not to exceed $225 million since the Designated Date; (10) the payment of dividends or distributions to any Huntsman Parent Company which are contemporaneously applied to pay dividends on common stock of the Huntsman Public Parent at a rate not to exceed $0.40 per share per annum (such amount to be appropriately adjusted to reflect any stock split, reverse stock split, stock dividend, stock issuance or similar transactions made after the Designated Date so that the aggregate amount of dividends payable after such transaction is the same as the amount payable immediately prior to such transaction); (11) payments of dividends on Disqualified Capital Stock issued in accordance with Section 4.12; and (12) if the Consolidated Leverage Ratio of the Company, calculated after giving pro forma effect to any repurchase under this clause (12), is less than 2.5 to 1.0, then the Company may repurchase or dividend to a Huntsman Parent Company to repurchase, up to an aggregate of $250 million of Common Stock of a Huntsman Parent Company. In determining the aggregate amount of Restricted Payments made subsequent to the Designated Date in accordance with clause (iii) of the immediately preceding paragraph, cash amounts expended pursuant to clauses (1), (2), (3)(ii)(A) and (4) shall be included in such calculation and Restricted Payments made pursuant to the other clauses of this paragraph shall not be so included. Not later than the date of making any Restricted Payment pursuant to clause (iii) of the second preceding paragraph or clause (9) of the immediately preceding paragraph, the Company shall deliver to the Trustee an officers’ certificate stating that such Restricted Payment complies with this Indenture and setting forth in reasonable detail the basis upon which the required calculations were computed, which calculations may be based upon the Company’s quarterly financial statements last provided to the Trustee pursuant to Section 4.09Offering Memorandum.
Appears in 1 contract
Samples: Community Distributors Inc
Limitation on Restricted Payments. The Company shall not, and shall not cause or permit any Restricted Subsidiary of its Restricted Subsidiaries the Company to, directly or indirectly, make any Restricted Payment unless (a) no Default or Event of Default has occurred and is continuing at the time or shall occur as a consequence of such Restricted Payment and (b) after giving effect to such Restricted Payment, the aggregate amount expended for all Restricted Payments subsequent to December 31, 1993 (the amount so expended, if other than in cash, to be determined by the Board of Directors, whose reasonable determination shall be conclusive and evidenced by a Board Resolution) does not exceed the sum of (i) 50% of Consolidated Net Income of the Company (or in the case such Consolidated Net Income shall be a deficit, minus 100% of such deficit) during the period (treated as one accounting period) subsequent to December 31, 1993 and ending on the last day of the fiscal quarter immediately preceding such Restricted Payment, (ii) the aggregate net proceeds, including cash and the fair market value of property other than cash (as determined in good faith by the Board of Directors of the Company and evidenced by a Board Resolution), received by the Company during such period from any person other than a Restricted Subsidiary of the Company, as a result of the issuance of capital stock of the Company (other than any Disqualified Stock) or warrants, rights or options to purchase or acquire such capital stock, including such capital stock issued upon conversion or exchange of Indebtedness or upon exercise of warrants or options and any contributions to the capital of the Company received by the Company from any such person less the amount of such net proceeds actually applied as permitted by clause (ii) of the next paragraph or by the proviso to the definition of "Restricted Debt Prepayment", (iii) in the case of the redesignation of an Unrestricted Subsidiary to a Restricted Subsidiary, the amount by which Restricted Payments permitted under this Section 4.02 would have increased if such Unrestricted Subsidiary had never been designated as an Unrestricted Subsidiary, determined at the time of such redesignation and (iv) without duplication to clause (iii), the net reduction in Restricted Investments in Unrestricted Subsidiaries resulting from dividends, repayments of loans or advances or other transfers of assets or amounts received upon the disposition of any Restricted Investments; provided that, at the time of such Restricted Payment or immediately and after giving effect thereto, (i) a Default or an Event of Default shall have occurred and be continuing, (ii) the Company is not or any Restricted Subsidiary of the Company shall be able to incur at least an additional $1.00 of additional Indebtedness other than Permitted Indebtedness in compliance with Section 4.12, or pursuant to clauses (iiia) the aggregate amount of Restricted Payments including such proposed Restricted Payment made after June 30, 2006, including, the Fair Market Value as determined reasonably and in good faith by the Board of Managers of the Company of non-cash amounts constituting Restricted Payments 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 lossb) of Section 4.03. For purposes of any calculation pursuant to the Company earned from June 30, 2006 through preceding sentence which is required to be made within 60 days after the last day declaration of the last full fiscal quarter immediately preceding 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 dividend by the Company from any Person (other than a Subsidiary of the Company) from the issuance and sale subsequent to June 30, 2006 of Qualified Capital Stock of the Company (other than Specified Venture Capital Stock) or debt securities of the Company that are, upon issuance, convertible into or exchangeable for Qualified Capital Stock of the Company, but only when and such dividend shall be deemed to be paid at the extent such debt securities are converted into or exchanged for Qualified Capital Stock date of the Company; plus (y) without duplication declaration. The provisions of any amounts included in clause (iii)(x) above, 100% of the aggregate net cash proceeds of any equity contribution received by the Company from a holder of the Company’s Capital Stock subsequent to June 30, 2006; plus (z) $400 million. Notwithstanding the foregoing, the provisions set forth in the immediately preceding paragraph this Section 4.02 shall not prohibit: be violated by reason of (1i) the payment of any dividend within 60 days after the date of declaration of thereof if, at such dividend if the dividend would have been permitted on the date of declarationdeclaration such payment complied with the provisions hereof; (2ii) the purchase, redemption, acquisition or retirement of any shares of Capital Stock the Company's capital stock in exchange for, or out of the proceeds of the substantially concurrent sale (other than to a subsidiary of the Company) of, either (i) solely in exchange for other shares of Qualified Capital Stock capital stock (other than Disqualified Stock) of the Company or rights, warrants or options to purchase or acquire such capital stock of the Company; or (iiiii) if payments by the Company (A) for the mandatory repurchase of shares of Common Stock or other capital stock of the Company (or scheduled payments of principal of or interest on notes issued to finance the repurchase of such shares) from employees of the Company or its subsidiaries under employment agreements or in connection with employment termination agreements, (B) to satisfy any Obligations under the terms of the Stockholders Agreement or (C) for the purchase, redemption or retirement of any shares of any capital stock of the Company or options to purchase capital stock of the Company in connection with the exercise of outstanding stock options; provided that no Default or Event of Default shall have has occurred and be continuing, through is continuing at the application of net cash proceeds of a substantially concurrent Equity Offering (other than to a Subsidiary of the Company); (3) the acquisition or repayment of any Indebtedness of the Company that is subordinate or junior in right of payment to the Notes either (i) solely in exchange for shares of Qualified Capital Stock of the Companytime, or (ii) if no Default or Event of Default shall have occurred and be continuingoccur as a result, through the application of net cash proceeds of (A) a substantially concurrent Equity Offering or (B) incurrence for cash of Refinancing Indebtedness, (in the case of (A) or (B), other than to a Subsidiary of the Company); (4) so long as no Default or Event of Default shall have occurred and be continuing, repurchases by the Company of, or dividends to a Huntsman Parent Company to permit repurchases by a Huntsman Parent Company of, Common Stock of the Company or a Huntsman Parent Company from employees of the Company or any of its Subsidiaries or their authorized representatives upon the death, disability or termination of employment of such employees, in an aggregate amount not to exceed $25 million in any calendar year; (5) the redemption or repurchase Restricted Payment. For purposes of any Common Stock of the Company held by a Restricted Subsidiary of the Company which obtained such Common Stock directly from the Company; (6) distributions to any Huntsman Parent Company in accordance with the Tax Sharing Agreement; (7) payments to any Huntsman Parent Company for legal, audit and other expenses directly relating to the administration of such Huntsman Parent Company not to exceed $10.0 million in any fiscal year; (8) the payment of consideration by a third party to equity holders of the Company; (9) additional Restricted Payments in an aggregate amount not to exceed $225 million since the Designated Date; (10) the payment of dividends or distributions to any Huntsman Parent Company which are contemporaneously applied to pay dividends on common stock of the Huntsman Public Parent at a rate not to exceed $0.40 per share per annum (such amount to be appropriately adjusted to reflect any stock split, reverse stock split, stock dividend, stock issuance or similar transactions made after the Designated Date so that the aggregate amount of dividends payable after such transaction is the same as the amount payable immediately prior to such transaction); (11) payments of dividends on Disqualified Capital Stock issued in accordance with Section 4.12; and (12) if the Consolidated Leverage Ratio of the Company, calculated after giving pro forma effect to any repurchase under this clause (12), is less than 2.5 to 1.0, then the Company may repurchase or dividend to a Huntsman Parent Company to repurchase, up to an aggregate of $250 million of Common Stock of a Huntsman Parent Company. In determining the aggregate amount of Restricted Payments made subsequent to the Designated Date in accordance with clause (iiib) of the first paragraph of this Section 4.02, all amounts expended pursuant to clause (i) or (ii) (except to the extent deemed to have been paid pursuant to the immediately preceding paragraph, cash amounts expended pursuant to clauses (1), (2), (3)(ii)(A) and (4) shall be included in such calculation and Restricted Payments made pursuant to the other clauses of this paragraph shall not be so included. Not later than For the date purpose of making any this Section 4.02 and the proviso to the definition of "Restricted Payment pursuant to clause (iii) Debt Prepayment", the net proceeds from the issuance of shares of capital stock of the second preceding paragraph or clause (9) Company upon the conversion of the immediately preceding paragraph, the Company debt securities shall deliver be deemed to be an amount equal to the Trustee an officers’ certificate stating that net book value of such Restricted Payment complies with this Indenture and setting forth in reasonable detail debt securities (plus the basis additional amount required to be paid upon which such conversion, if any), less any cash payment on account of fractional shares; the required calculations were computed, which calculations may be based upon the Company’s quarterly financial statements last provided to the Trustee pursuant to Section 4.09."net book
Appears in 1 contract
Samples: Execution (Lear Corp /De/)
Limitation on Restricted Payments. (a) The Company shall not, and shall not cause or permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, make any 62 -54- Restricted Payment if if, at the time of such proposed Restricted Payment Payment, or immediately after giving effect thereto, (i1) a Default or an Event of Default shall have occurred and be continuing, (ii2) the Company is could not able to incur at least Incur $1.00 of additional Indebtedness other than Permitted Indebtedness pursuant to the proviso in compliance with Section 4.12, 5.12 hereof or (iii3) the aggregate amount of expended for all Restricted Payments Payments, including such proposed Restricted Payment made after June 30(the amount of any Restricted Payment, 2006if other than cash, including, to be the Fair Market Value fair market value thereof at the date of payment as determined reasonably and in good faith by the Board of Managers Directors of the Company of non-cash amounts constituting Restricted Payments as evidenced by a Board Resolution), subsequent to the Issue Date, shall exceed the sum of: of (wi) 50% of the cumulative aggregate Consolidated Net Income (or if cumulative such aggregate Consolidated Net Income shall be is a loss, minus 100% of such loss) earned during the period beginning on the Issue Date and ending on the date of the Company earned from June 30, 2006 through the last day of the last full fiscal quarter immediately preceding the date the proposed Restricted Payment occurs (the “"Reference Date”") (treating such period as a single accounting period); plus (xii) 100% of the aggregate net cash proceeds Net Proceeds received by the Company from any Person (other than a Subsidiary of the CompanySubsidiary) from the issuance and sale (including upon exchange or conversion for other securities of the Company) subsequent to June 30, 2006 the Issue Date and on or prior to the Reference Date of Qualified Capital Stock of the Company (other than Specified Venture Capital Stockexcluding (A) or debt securities of the Company that are, upon issuance, convertible into or exchangeable for Qualified Capital Stock of paid as a dividend on any Capital Stock or as interest on any Indebtedness and (B) any Net Proceeds from issuances and sales financed directly or indirectly using funds borrowed from the CompanyCompany or any Subsidiary, but only when until and to the extent such debt securities are converted into or exchanged for Qualified Capital Stock of the Company; borrowing is repaid), plus (yiii) without duplication of any amounts included in clause (iii)(x) above, 100% of the aggregate net cash proceeds of any equity contribution received by the Company Net Proceeds from a holder of the Company’s Capital Stock subsequent to June 30, 2006; plus (z) $400 million. Notwithstanding the foregoing, the provisions set forth in the immediately preceding paragraph shall not prohibit: (1x) the payment sale or other disposition 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) the acquisition of any shares of Capital Stock of the Company, either (i) solely in exchange for shares of Qualified Capital Stock of the Company or (ii) if no Default or Event of Default shall have occurred and be continuing, through the application of net cash proceeds of a substantially concurrent Equity Offering Investments (other than to a Subsidiary Permitted Investments described in clauses (i)-(vii) inclusive of the Company); (3definition thereof) the acquisition or repayment of any Indebtedness of the Company that is subordinate or junior in right of payment to the Notes either (i) solely in exchange for shares of Qualified Capital Stock of the Company, or (ii) if no Default or Event of Default shall have occurred and be continuing, through the application of net cash proceeds of (A) a substantially concurrent Equity Offering or (B) incurrence for cash of Refinancing Indebtedness, (in the case of (A) or (B), other than to a Subsidiary of the Company); (4) so long as no Default or Event of Default shall have occurred and be continuing, repurchases made by the Company of, or dividends to a Huntsman Parent Company to permit repurchases by a Huntsman Parent Company of, Common Stock of the Company or a Huntsman Parent Company from employees of the Company or any Restricted Subsidiary after the Issue Date or (y) the sale of its Subsidiaries the Capital Stock of any Unrestricted Subsidiary by the Company or their authorized representatives upon any Restricted Subsidiary or the death, disability sale of all or termination substantially all of employment the assets of any Unrestricted Subsidiary to the extent that a liquidating dividend or similar distribution is paid to the Company or any Restricted Subsidiary from the proceeds of such employees, in an aggregate amount not to exceed $25 million in any calendar year; (5) the redemption or repurchase of any Common Stock of the Company held by a Restricted Subsidiary of the Company which obtained such Common Stock directly from the Company; (6) distributions to any Huntsman Parent Company in accordance with the Tax Sharing Agreement; (7) payments to any Huntsman Parent Company for legal, audit and other expenses directly relating to the administration of such Huntsman Parent Company not to exceed $10.0 million in any fiscal year; (8) the payment of consideration by a third party to equity holders of the Company; (9) additional Restricted Payments in an aggregate amount not to exceed $225 million since the Designated Date; (10) the payment of dividends or distributions to any Huntsman Parent Company which are contemporaneously applied to pay dividends on common stock of the Huntsman Public Parent at a rate not to exceed $0.40 per share per annum (such amount to be appropriately adjusted to reflect any stock split, reverse stock split, stock dividend, stock issuance or similar transactions made after the Designated Date so that the aggregate amount of dividends payable after such transaction is the same as the amount payable immediately prior to such transaction); (11) payments of dividends on Disqualified Capital Stock issued in accordance with Section 4.12; and (12) if the Consolidated Leverage Ratio of the Company, calculated after giving pro forma effect to any repurchase under this clause (12), is less than 2.5 to 1.0, then the Company may repurchase or dividend to a Huntsman Parent Company to repurchase, up to an aggregate of $250 million of Common Stock of a Huntsman Parent Company. In determining the aggregate amount of Restricted Payments made subsequent to the Designated Date in accordance with clause (iii) of the immediately preceding paragraph, cash amounts expended pursuant to clauses (1), (2), (3)(ii)(A) and (4) shall be included in such calculation and Restricted Payments made pursuant to the other clauses of this paragraph shall not be so included. Not later than the date of making any Restricted Payment pursuant to clause (iii) of the second preceding paragraph or clause (9) of the immediately preceding paragraph, the Company shall deliver to the Trustee an officers’ certificate stating that such Restricted Payment complies with this Indenture and setting forth in reasonable detail the basis upon which the required calculations were computed, which calculations may be based upon the Company’s quarterly financial statements last provided to the Trustee pursuant to Section 4.09asset sale.
Appears in 1 contract
Samples: Smiths Food & Drug Centers Inc
Limitation on Restricted Payments. The Company Issuers and the Guarantors shall not, and shall not cause or permit any of its Restricted their Subsidiaries to, to directly or indirectly, make any Restricted Payment if at the time of if, after giving effect to such Restricted Payment or immediately after giving effect theretoon a pro forma basis, (i1) a Default or an Event of Default shall have occurred and be continuing, (ii2) the Company Trust is not able permitted to incur at least $1.00 of additional Indebtedness other than Permitted Indebtedness pursuant to the Debt Incurrence Ratio in compliance with Section 4.12, 4.10 on a Pro Forma Basis or (iii3) the aggregate amount of all Restricted Payments made by the Trust and its Subsidiaries, including after giving effect to such proposed Restricted Payment made Payment, from and after June 30the Issue Date, 2006, including, the Fair Market Value as determined reasonably and in good faith by the Board of Managers of the Company of non-cash amounts constituting Restricted Payments shall would exceed the sum of: of (wa) $10 million, plus (b) 50% of the cumulative aggregate Consolidated Net Income of the Trust and its Consolidated Subsidiaries for the period (or if cumulative taken as one accounting period), commencing on the first day of the first fiscal quarter ending after the Issue Date, to and including the last day of the fiscal quarter ended immediately prior to the date of each such calculation (or, in the event Consolidated Net Income shall be for such period is a lossdeficit, then minus 100% of such loss) of the Company earned from June 30deficit), 2006 through the last day of the last full fiscal quarter immediately preceding the date the Restricted Payment occurs (the “Reference Date”) (treating such period as a single accounting period); plus (xc) 100% of the aggregate net cash proceeds Net Cash Proceeds received by the Company Trust from any Person a contribution by the holders of its Capital Stock (other than a Subsidiary by the Subsidiaries of the CompanyTrust) from or the issuance and sale subsequent to June 30, 2006 of its Qualified Capital Stock of the Company (other than Specified Venture Capital Stock) or debt securities of the Company that are, upon issuance, convertible into or exchangeable for Qualified Capital Stock of the Company, but only when and to the extent such debt securities are converted into or exchanged for Qualified Capital Stock of the Company; 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 the Company from a holder of the Company’s Capital Stock subsequent to June 30, 2006; plus (z) $400 million. Notwithstanding the foregoing, the provisions set forth in the immediately preceding paragraph shall 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) the acquisition of any shares of Capital Stock of the Company, either (i) solely in exchange for shares of Qualified Capital Stock of the Company or (ii) if no Default or Event of Default shall have occurred and be continuing, through the application of net cash proceeds of a substantially concurrent Equity Offering (other than to a Subsidiary of the Company); (3) the acquisition or repayment of any Indebtedness of the Company that is subordinate or junior in right of payment to the Notes either (i) solely in exchange for shares of Qualified Capital Stock of the Company, or Trust and (ii) if no Default or Event of Default shall have occurred and be continuing, through to the application of net cash proceeds of (A) extent applied in connection with a substantially concurrent Equity Offering or (B) incurrence for cash of Refinancing Indebtedness, (in the case of (A) or (BQualified Exchange), after the Issue Date, plus (d) the Net Cash Proceeds from the sale of Investments by the Issuers (other than to a Subsidiary of the Company); (4Permitted Investments) so long as no Default or Event of Default shall have occurred and be continuing, repurchases by the Company of, or dividends to a Huntsman Parent Company to permit repurchases by a Huntsman Parent Company of, Common Stock of the Company or a Huntsman Parent Company from employees of the Company or any of its Subsidiaries or their authorized representatives upon the death, disability or termination of employment of such employees, in an aggregate amount not to exceed $25 million in any calendar year; (5) the redemption or repurchase of any Common Stock of the Company held by a Restricted Subsidiary of the Company which obtained such Common Stock directly from the Company; (6) distributions to any Huntsman Parent Company in accordance with the Tax Sharing Agreement; (7) payments to any Huntsman Parent Company for legal, audit and other expenses directly relating to the administration of such Huntsman Parent Company not to exceed $10.0 million in any fiscal year; (8) the payment of consideration by a third party to equity holders of the Company; (9) additional Restricted Payments in an aggregate amount not to exceed $225 million since the Designated Date; (10) the payment of dividends or distributions to any Huntsman Parent Company which are contemporaneously applied to pay dividends on common stock of the Huntsman Public Parent at a rate not to exceed $0.40 per share per annum (such amount to be appropriately adjusted to reflect any stock split, reverse stock split, stock dividend, stock issuance or similar transactions made after the Designated Date so Issue Date, plus the total Investments, net, without duplication, of any Indebtedness, in any Unrestricted Subsidiaries designated Subsidiaries, provided that such amounts, taken with all other amounts distributed on or realized from such Investments or designations, does not exceed the original aggregate amount of dividends payable after such transaction is the same as the amount payable immediately prior to such transaction); (11) payments of dividends on Disqualified Capital Stock issued in accordance with Section 4.12; and (12) if the Consolidated Leverage Ratio of the Company, calculated after giving pro forma effect to any repurchase under this clause (12), is less than 2.5 to 1.0, then the Company may repurchase or dividend to a Huntsman Parent Company to repurchase, up to an aggregate of $250 million of Common Stock of a Huntsman Parent Company. In determining the aggregate amount of Restricted Payments made subsequent to the Designated Date in accordance with clause (iii) of the immediately preceding paragraph, cash amounts expended pursuant to clauses (1), (2), (3)(ii)(A) and (4) shall be included in such calculation and Restricted Payments made pursuant to the other clauses of this paragraph shall not be so included. Not later than the date of making any Restricted Payment pursuant to clause (iii) of the second preceding paragraph or clause (9) of the immediately preceding paragraph, the Company shall deliver to the Trustee an officers’ certificate stating that such Restricted Payment complies with this Indenture and setting forth in reasonable detail the basis upon which the required calculations were computed, which calculations may be based upon the Company’s quarterly financial statements last provided to the Trustee pursuant to Section 4.09Investments.
Appears in 1 contract
Samples: Indenture (Venture Service Co)
Limitation on Restricted Payments. The Company shall will not, and shall not cause or nor will it permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, (i) declare or pay any dividend on, or make any distribution in respect of, or purchase, redeem or otherwise acquire or retire for value, any Capital Stock of the Company other than through the issuance solely of the Company's own Capital Stock (other than Disqualified Stock), or rights thereto; (ii) make any principal payment on, or redeem, repurchase, defease or otherwise acquire or retire for value prior to scheduled principal payments or maturity, Indebtedness of the Company or any Restricted Subsidiary which is expressly subordinated in right of payment to the Notes (other than Indebtedness Incurred after the issuance of the Notes provided that such repayment, redemption, repurchase, defeasance or other retirement is made substantially concurrent with the receipt of proceeds from the Incurrence of Indebtedness that by its terms is both subordinated in right of payment to the Notes and matures, by sinking fund or otherwise, after April 1, 2009); or (iii) make any Restricted Payment if Investment (such payments or any other actions described in (i), (ii) and (iii) being referred to herein collectively as, "Restricted Payments") unless (A) at the time of such Restricted Payment or immediately of, and after giving effect theretoto, the proposed Restricted Payment, no Event of Default (i) a Default and no event that, after notice or lapse of time, or both, would become an Event of Default Default) shall have occurred and be continuing, (iiB) the Company is not able to incur at least Incur an additional $1.00 of additional Indebtedness other than Permitted Indebtedness in compliance with pursuant to the first paragraph of the covenant described under Section 4.126.02 herein, or and (iiiC) at the time of, and after giving effect thereto, the sum of the aggregate amount of expended (or with respect to guaranties or similar arrangements the amount then guaranteed) for all such Restricted Payments including (the amount expended for such proposed Restricted Payment made after June 30purposes, 2006if other than in cash, including, the Fair Market Value as to be determined reasonably and in good faith by the Board of Managers Directors of the Company Company, whose determination shall be conclusive and evidenced by a resolution of non-cash amounts constituting Restricted Payments such Board of Directors filed with the Trustee) subsequent to June 30, 1997 shall not exceed the sum of: of (wI) 50% of the cumulative aggregate Consolidated Net Income (or if cumulative or, in case such aggregate Consolidated Net Income shall be a lossdeficit, minus 100% of such lossdeficit) of the Company earned from accrued on a cumulative basis subsequent to June 30, 2006 through the last day of the last full fiscal quarter immediately preceding the date the Restricted Payment occurs 1997, (the “Reference Date”II) (treating such period as a single accounting period); plus (x) 100% of the aggregate net proceeds, including the fair market value of property other than cash proceeds (as determined by the Board of Directors of the Company, whose determination shall be conclusive and evidenced by a resolution of such Board of Directors filed with the Trustee), received by the Company from any Person the issuance or sale, after the Original Issue Date, of Capital Stock (other than a Subsidiary of the Company) from the issuance and sale subsequent to June 30, 2006 of Qualified Capital Stock of the Company (other than Specified Venture Capital Disqualified Stock) or debt securities of the Company that are, upon issuance, convertible into or exchangeable for Qualified Capital Stock of the Company, including Capital Stock (other than Disqualified Stock) of the Company issued subsequent to the Original Issue Date upon the conversion of Indebtedness of the Company initially issued for cash, (III) 100% of dividends or distributions (the fair value of which, if other than cash, to be determined by the Board of Directors, in good faith) paid to the Company (or any Restricted Subsidiary) by an Unrestricted Subsidiary, Homebuilding Joint Venture or any other person in which the Company (or any Restricted Subsidiary), directly or indirectly, has an ownership interest but only when and less than a 100% ownership interest to the extent that such debt securities are converted into dividends or exchanged for Qualified Capital Stock distributions do not exceed the amount of loans, advances or capital contributions made to any such entity or person subsequent to the Company; plus (y) without duplication of any amounts Original Issue Date and included in clause the calculation of Restricted Payments, and (iii)(x) above, 100% of the aggregate net cash proceeds of any equity contribution received by the Company from a holder of the Company’s Capital Stock subsequent to June 30, 2006; plus (zIV) $400 million. Notwithstanding 40,000,000; provided, however, that the foregoing, the provisions set forth in the immediately preceding paragraph foregoing shall not prohibit: prevent (1aa) the -------- ------- payment of any dividend within 60 days after the date of declaration thereof, if at said date of declaration the making of such dividend if the dividend payment would have been permitted complied with the provisions of this limitation on the date dividends; provided, however, that such dividend shall be included in future calculations of declaration; Restricted Payments, (2bb) the acquisition retirement of any shares of the Company's Capital Stock by exchange for, or out of proceeds of the substantially concurrent sale of, other shares of its Capital Stock (other than Disqualified Stock); provided, however, that the aggregate net proceeds from such sale shall be excluded from the calculation of the amounts under subclause (II) above, (cc) the redemption, repayment, repurchase, defeasance or other retirement of Indebtedness with proceeds received from the substantially concurrent sale of shares of the Company, either (i) solely in exchange for shares of Qualified 's Capital Stock of the Company or (ii) if no Default or Event of Default shall have occurred and be continuing, through the application of net cash proceeds of a substantially concurrent Equity Offering (other than to a Subsidiary Disqualified Stock); provided however, that the aggregate net proceeds from such sale shall be excluded from the calculation of the Company); amounts under subclause (3II) the acquisition or repayment of any Indebtedness of the Company that is subordinate or junior in right of payment to the Notes either (i) solely in exchange for shares of Qualified Capital Stock of the Companyabove, or (iidd) if no Default any investment or Event of Default shall have occurred and be continuinginvestments in Standard Pacific Savings, through the application of net cash proceeds of F.A. (A"Savings") a substantially concurrent Equity Offering or (B) incurrence for cash of Refinancing Indebtedness, (in the case of (A) or (B), other than to a Subsidiary of the Company); (4) so long as no Default or Event of Default shall have occurred and be continuing, repurchases by the Company of, or dividends to a Huntsman Parent Company to permit repurchases by a Huntsman Parent Company of, Common Stock of the Company or a Huntsman Parent Company from employees of the Company or any of its Restricted Subsidiaries for the purpose of causing Savings to comply with any regulatory agreements existing on the Original Issue Date or their authorized representatives upon with any applicable law, rule, regulation, official interpretation of law, rule or regulation or official directive which governs the deathcapital maintenance, disability or termination of employment of such employees, in an aggregate amount not to exceed $25 million in any calendar year; (5) the redemption or repurchase of any Common Stock of the Company held by a Restricted Subsidiary of the Company which obtained such Common Stock directly from the Company; (6) distributions to any Huntsman Parent Company in accordance with the Tax Sharing Agreement; (7) payments to any Huntsman Parent Company for legal, audit and other expenses directly relating to the administration of such Huntsman Parent Company not to exceed $10.0 million in any fiscal year; (8) the payment of consideration by a third party to equity holders of the Company; (9) additional Restricted Payments in an aggregate amount not to exceed $225 million since the Designated Date; (10) the payment of dividends or distributions to any Huntsman Parent Company which are contemporaneously applied to pay dividends on common stock of the Huntsman Public Parent at a rate not to exceed $0.40 per share per annum (such amount to be appropriately adjusted to reflect any stock split, reverse stock split, stock dividend, stock issuance net worth or similar transactions made after the Designated Date so that the aggregate amount of dividends payable after such transaction is the same as the amount payable immediately prior regulatory requirements applicable to such transaction); (11) payments of dividends on Disqualified Capital Stock issued in accordance with Section 4.12; and (12) if the Consolidated Leverage Ratio of the Company, calculated after giving pro forma effect to any repurchase under this clause (12), is less than 2.5 to 1.0, then the Company may repurchase or dividend to a Huntsman Parent Company to repurchase, up to an aggregate of $250 million of Common Stock of a Huntsman Parent Company. In determining the aggregate amount of Restricted Payments made subsequent to the Designated Date in accordance with clause (iii) of the immediately preceding paragraph, cash amounts expended pursuant to clauses (1), (2), (3)(ii)(A) and (4) shall be included in such calculation and Restricted Payments made pursuant to the other clauses of this paragraph shall not be so included. Not later than the date of making any Restricted Payment pursuant to clause (iii) of the second preceding paragraph or clause (9) of the immediately preceding paragraph, the Company shall deliver to the Trustee an officers’ certificate stating that such Restricted Payment complies with this Indenture and setting forth in reasonable detail the basis upon which the required calculations were computed, which calculations may be based upon the Company’s quarterly financial statements last provided to the Trustee pursuant to Section 4.09Savings.
Appears in 1 contract
Samples: Standard Pacific Corp /De/
Limitation on Restricted Payments. The (a) So long as any bonds of the Eleventh Series are Outstanding, the Company shall not, and shall covenants that it will not cause or permit declare any dividends on its common stock (other than (1) a dividend payable solely in shares of its Restricted Subsidiaries tocommon stock or (2) a dividend payable in cash in cases where, directly concurrently with the payment of such dividend, an amount in cash equal to such dividend is received by the Company as a capital contribution or indirectly, as the proceeds of the issue and sale of shares of its common stock) or make any Restricted Payment if at distribution on outstanding shares of its common stock or purchase or otherwise acquire for value any outstanding shares of its common stock (otherwise than in exchange for or out of the time proceeds from the sale of other shares of its common stock) unless after such Restricted Payment dividend, distribution, purchase or immediately after giving effect theretoacquisition, (i) a Default or an Event of Default shall have occurred and be continuing, (ii) the Company is not able to incur at least $1.00 of additional Indebtedness other than Permitted Indebtedness in compliance with Section 4.12, or (iii) the aggregate amount of Restricted Payments including such proposed Restricted Payment dividends, distributions, purchases and acquisitions paid or made after June 30, 2006, including, the Fair Market Value as determined reasonably and in good faith by the Board of Managers of the Company of non-cash amounts constituting Restricted Payments 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 the Company earned from June 30, 2006 through the last day of the last full fiscal quarter immediately preceding 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 the Company from any Person (other than a Subsidiary of the Company) from the issuance and sale subsequent to June 30, 2006 of Qualified Capital Stock of the Company 2000 (other than Specified Venture Capital Stock) or debt securities of the Company that are, upon issuance, convertible into or exchangeable for Qualified Capital Stock of the Company, but only when and to the extent such debt securities are converted into or exchanged for Qualified Capital Stock of the Company; 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 dividend declared by the Company on or before June 30, 2000) does not exceed (without giving effect to (1) any such dividends, distributions, purchases or acquisitions, or (2) any net transfers from a holder earned surplus to stated capital accounts) the sum of (A) the Company’s Capital Stock aggregate amount credited subsequent to June 30, 2006; plus 2000, to earned surplus, (zB) $400 million150,000,000 and (C) such additional amounts as shall be authorized or approved, upon application by the Company and, after notice, by the SEC under the Holding Company Act. Notwithstanding For the foregoingpurpose of this Section 4.03, the provisions set forth aggregate amount credited subsequent to June 30, 2000, to earned surplus shall be determined in accordance with applicable generally accepted accounting principles and practices (or, if in the immediately preceding paragraph shall not prohibit: opinion of the Company's independent public accountants (1delivered to the Trustee) the payment there is an absence of any dividend within 60 days such generally accepted accounting principles and practices as to the determination in question, then in accordance with sound accounting practices) and after the date of declaration of such dividend if the dividend would have been permitted on the date of declaration; (2) the acquisition of making provision for dividends upon any shares of Capital Stock preferred stock of the Company, either accumulated subsequent to such date, and in addition there shall be deducted from earned surplus all amounts (iwithout duplication) solely of losses, write-offs, write-downs or amortization of property, whether extraordinary or otherwise, recorded in exchange for shares of Qualified Capital Stock of the Company or (ii) if no Default or Event of Default shall have occurred and be continuing, through the application of net cash proceeds of a substantially concurrent Equity Offering (other than applicable to a Subsidiary of the Company); (3) the acquisition period or repayment of any Indebtedness of the Company that is subordinate or junior in right of payment to the Notes either (i) solely in exchange for shares of Qualified Capital Stock of the Company, or (ii) if no Default or Event of Default shall have occurred and be continuing, through the application of net cash proceeds of (A) a substantially concurrent Equity Offering or (B) incurrence for cash of Refinancing Indebtedness, (in the case of (A) or (B), other than to a Subsidiary of the Company); (4) so long as no Default or Event of Default shall have occurred and be continuing, repurchases by the Company of, or dividends to a Huntsman Parent Company to permit repurchases by a Huntsman Parent Company of, Common Stock of the Company or a Huntsman Parent Company from employees of the Company or any of its Subsidiaries or their authorized representatives upon the death, disability or termination of employment of such employees, in an aggregate amount not to exceed $25 million in any calendar year; (5) the redemption or repurchase of any Common Stock of the Company held by a Restricted Subsidiary of the Company which obtained such Common Stock directly from the Company; (6) distributions to any Huntsman Parent Company in accordance with the Tax Sharing Agreement; (7) payments to any Huntsman Parent Company for legal, audit and other expenses directly relating to the administration of such Huntsman Parent Company not to exceed $10.0 million in any fiscal year; (8) the payment of consideration by a third party to equity holders of the Company; (9) additional Restricted Payments in an aggregate amount not to exceed $225 million since the Designated Date; (10) the payment of dividends or distributions to any Huntsman Parent Company which are contemporaneously applied to pay dividends on common stock of the Huntsman Public Parent at a rate not to exceed $0.40 per share per annum (such amount to be appropriately adjusted to reflect any stock split, reverse stock split, stock dividend, stock issuance or similar transactions made after the Designated Date so that the aggregate amount of dividends payable after such transaction is the same as the amount payable immediately prior to such transaction); (11) payments of dividends on Disqualified Capital Stock issued in accordance with Section 4.12; and (12) if the Consolidated Leverage Ratio of the Company, calculated after giving pro forma effect to any repurchase under this clause (12), is less than 2.5 to 1.0, then the Company may repurchase or dividend to a Huntsman Parent Company to repurchase, up to an aggregate of $250 million of Common Stock of a Huntsman Parent Company. In determining the aggregate amount of Restricted Payments made periods subsequent to the Designated Date in accordance with clause (iii) of the immediately preceding paragraphJune 30, cash amounts expended pursuant to clauses (1), (2), (3)(ii)(A) and (4) shall be included in such calculation and Restricted Payments made pursuant to the other clauses of this paragraph shall not be so included. Not later than the date of making any Restricted Payment pursuant to clause (iii) of the second preceding paragraph or clause (9) of the immediately preceding paragraph, the Company shall deliver to the Trustee an officers’ certificate stating that such Restricted Payment complies with this Indenture and setting forth in reasonable detail the basis upon which the required calculations were computed, which calculations may be based upon the Company’s quarterly financial statements last provided to the Trustee pursuant to Section 4.092000.
Appears in 1 contract
Limitation on Restricted Payments. The Company shall not, and shall not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, make any Restricted Payment if if, at the time of such proposed Restricted Payment Payment, or immediately after giving effect thereto, (ia) a Default or an Event of Default shall have occurred and be continuing, (iib) the Company is could not able to incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness in compliance with Indebtedness) pursuant to Section 4.12, 5.12 or (iiic) the aggregate amount of expended for all Restricted Payments Payments, including such proposed Restricted Payment made after June 30(the amount of any Restricted Payment, 2006if other than cash, includingto be the fair market value thereof at the date of payment, the Fair Market Value as determined reasonably and in good faith by the Board of Managers Directors of the Company of non-cash amounts constituting Restricted Payments Company), subsequent to the Issue Date, shall exceed the sum of: of (wi) 50% of the cumulative aggregate Consolidated Net Income (or if cumulative such Consolidated Net Income shall be is a loss, minus 100% of such loss) of the Company earned from June 30, 2006 through subsequent to the last day Issue Date and on or prior to the date of the last full fiscal quarter immediately preceding the date the proposed Restricted Payment occurs (the “"Reference Date”) (treating such period as a single accounting period"); , plus (xii) 100% of the aggregate net cash proceeds Net Proceeds received by the Company from any Person person (other than a Subsidiary of the Company) from the issuance and sale (including upon exchange or conversion for other securities of the Company) subsequent to June 30, 2006 the Issue Date and on or prior to the Reference Date of Qualified Capital Stock of the Company (other than Specified Venture Capital Stockexcluding (A) or debt securities of the Company that are, upon issuance, convertible into or exchangeable for Qualified Capital Stock of paid as a dividend on any Capital Stock or as interest on any Indebtedness and (B) any Net 63 -55- Proceeds from issuances and sales financed directly or indirectly using funds borrowed from the CompanyCompany or any Subsidiary, but only when until and to the extent such debt securities are converted into or exchanged for Qualified Capital Stock of the Company; borrowing is repaid), plus (yiii) without duplication of any amounts included in clause (iii)(x) above, 100% of the aggregate net cash proceeds of any equity contribution received by the Company from a holder of as capital contributions to the Company’s Capital Stock subsequent to June 30Company after the Issue Date, 2006; plus (ziv) $400 10 million. Notwithstanding the foregoing, if no Default or Event of Default shall have occurred and be continuing as a consequence thereof, the provisions set forth in the immediately preceding paragraph shall will not prohibit: prevent (1) the payment of any dividend within 60 days after the date of its declaration of such dividend if the dividend would have been permitted on the date of declaration; , (2) the acquisition of any shares of Capital Stock of the CompanyCompany or the repurchase, either (i) solely redemption or other repayment of any Subordinated Indebtedness in exchange for shares of Qualified Capital Stock or solely out of the Company or (ii) if no Default or Event of Default shall have occurred and be continuing, through the application of net cash proceeds of a the substantially concurrent Equity Offering sale (other than to a Subsidiary Subsidiary) of the Company); (3) the acquisition or repayment of any Indebtedness of the Company that is subordinate or junior in right of payment to the Notes either (i) solely in exchange for shares of Qualified Capital Stock of the Company, (3) the repurchase, redemption or (ii) if no Default other repayment of any Subordinated Indebtedness in exchange for or Event solely out of Default shall have occurred and be continuing, through the application of net cash proceeds of (A) a the substantially concurrent Equity Offering or sale (B) incurrence for cash of Refinancing Indebtedness, (in the case of (A) or (B), other than to a Subsidiary Subsidiary) of Subordinated Indebtedness of the Company); Company with a Weighted Average Life to Maturity equal to or greater than the then remaining Weighted Average Life to Maturity of the Subordinated Indebtedness repurchased, redeemed or repaid, and (4) so long as no Default or Event of Default shall have occurred and be continuingPermitted Payments; provided, repurchases by the Company ofhowever, or dividends to a Huntsman Parent Company to permit repurchases by a Huntsman Parent Company of, Common Stock of the Company or a Huntsman Parent Company from employees of the Company or any of its Subsidiaries or their authorized representatives upon the death, disability or termination of employment of such employees, in an aggregate amount not to exceed $25 million in any calendar year; (5) the redemption or repurchase of any Common Stock of the Company held by a Restricted Subsidiary of the Company which obtained such Common Stock directly from the Company; (6) distributions to any Huntsman Parent Company in accordance with the Tax Sharing Agreement; (7) payments to any Huntsman Parent Company for legal, audit and other expenses directly relating to the administration of such Huntsman Parent Company not to exceed $10.0 million in any fiscal year; (8) the payment of consideration by a third party to equity holders of the Company; (9) additional Restricted Payments in an aggregate amount not to exceed $225 million since the Designated Date; (10) the payment of dividends or distributions to any Huntsman Parent Company which are contemporaneously applied to pay dividends on common stock of the Huntsman Public Parent at a rate not to exceed $0.40 per share per annum (such amount to be appropriately adjusted to reflect any stock split, reverse stock split, stock dividend, stock issuance or similar transactions made after the Designated Date so that the aggregate amount declaration of dividends payable after such transaction is the same as the amount payable immediately prior to such transaction); (11) payments of dividends on Disqualified Capital Stock issued in accordance with Section 4.12; and (12) if the Consolidated Leverage Ratio of the Company, calculated after giving pro forma effect to any repurchase under this clause (12), is less than 2.5 to 1.0, then the Company may repurchase or each dividend to a Huntsman Parent Company to repurchase, up to an aggregate of $250 million of Common Stock of a Huntsman Parent Company. In determining the aggregate amount of Restricted Payments made subsequent to the Designated Date paid in accordance with clause (1) above, each acquisition, repurchase, redemption or other repayment made in accordance with, or of the type set forth in, clause (2) above, and each payment described in clause (iii), (v) or (vii) of the definition of the term "Permitted Payments" shall each be counted for purposes of computing amounts expended pursuant to subclause (c) in the immediately preceding paragraph, cash and no amounts expended pursuant to clauses clause (1), (2), (3)(ii)(A3) and (4) shall be included in such calculation and Restricted Payments made pursuant to the other clauses of this paragraph shall not be so included. Not later than the date of making any Restricted Payment above or pursuant to clause (iiii), (ii), (iv) or (vi) of the second preceding paragraph or clause (9) definition of the immediately preceding paragraph, the Company term "Permitted Payments" shall deliver to the Trustee an officers’ certificate stating that such Restricted Payment complies with this Indenture and setting forth in reasonable detail the basis upon which the required calculations were computed, which calculations may be based upon the Company’s quarterly financial statements last provided to the Trustee pursuant to Section 4.09so counted.
Appears in 1 contract
Samples: Dominicks Supermarkets Inc
Limitation on Restricted Payments. The Company shall will not, and shall will not cause or permit any of its Restricted Subsidiaries toto make, directly or indirectly, make any Restricted Payment if if, at the time of such Restricted Payment or immediately after giving effect theretoto the proposed Restricted Payment, (i) a Default any Event of Non-Compliance (or any event that, with notice or lapse of time or both, would be an Event of Default Non-Compliance) shall have occurred and be continuing, continuing at such time or (ii) the Company is not able to incur at least $1.00 of additional Indebtedness other than Permitted Indebtedness in compliance with Section 4.12, or (iii) the aggregate amount of expended or declared for all Restricted Payments including such proposed Restricted Payment made after June 30, 2006, including, the Fair Market Value as determined reasonably and in good faith by the Board of Managers of the Company of non-cash amounts constituting Restricted Payments shall exceed Closing Date exceeds the sum of: of (wA) 50% of the cumulative Consolidated Net Income of the Company (or or, if cumulative Consolidated Net Income shall be a lossdeficit, minus 100% of such lossdeficit) of beginning on the Company earned from June 30, 2006 through Closing Date and ending on the last day of the last full fiscal quarter immediately preceding the date the of such Restricted Payment occurs (the “Reference Date”) (treating such period as a single accounting period); plus (xB) 100% of the aggregate net cash proceeds received by the Company subsequent to the Closing Date from any Person (without duplication) (1) capital contributions from stockholders (other than a Subsidiary of pursuant to the CompanyCommitments) from and (2) the issuance and or sale subsequent to June 30, 2006 of Qualified Capital Stock of the Company (other than Specified Venture to a Subsidiary) of Capital Stock (other than pursuant to the Commitments), including Capital Stock issued upon conversion of convertible debt and from the exercise of options, warrants or rights to purchase Capital Stock) or debt securities of the Company that are, upon issuance, convertible into or exchangeable for Qualified Capital Stock of the Company, but only when and to the extent such debt securities are converted into or exchanged for Qualified Capital Stock of the Companyexcluding Redeemable Stock; plus provided, however, that this Section 7.3 shall not prevent (yi) without duplication of any amounts included in clause (iii)(x) above, 100% of the aggregate net cash proceeds of any equity contribution received by the Company from a holder of the Company’s paying any dividend on its Capital Stock subsequent to June 30, 2006; plus (z) $400 million. Notwithstanding the foregoing, the provisions set forth in the immediately preceding paragraph shall not prohibit: (1) the payment of any dividend within 60 days after the date of declaration of thereof if, on the declaration date, the Company could have paid such dividend if in compliance with the dividend would have been permitted on the date of declaration; (2) the acquisition of any shares of Capital Stock of the Companypreceding paragraph, either (i) solely in exchange for shares of Qualified Capital Stock of the Company or (ii) if no Default the making of any dividend or Event of Default shall have occurred and be continuing, through the application of net cash proceeds of a substantially concurrent Equity Offering (other than to a Subsidiary redemption payments in respect of the Company); (3) the acquisition or repayment of any Indebtedness of the Company that is subordinate or junior in right of payment to the Notes either (i) solely in exchange for shares of Qualified Capital Series A Preferred Stock of the Company, or (ii) if no Default or Event of Default shall have occurred and be continuing, through the application of net cash proceeds of (A) a substantially concurrent Equity Offering or (B) incurrence for cash of Refinancing Indebtedness, (in the case of (A) or (B), other than to a Subsidiary of the Company); (4) so long as no Default or Event of Default shall have occurred and be continuing, repurchases by the Company of, or dividends to a Huntsman Parent Company to permit repurchases by a Huntsman Parent Company of, Common Stock of the Company or a Huntsman Parent Company from employees of the Company or any of its Subsidiaries or their authorized representatives upon the death, disability or termination of employment of such employees, in an aggregate amount not to exceed $25 million in any calendar year; (5) the redemption or repurchase of any Common Stock of the Company held by a Restricted Subsidiary of the Company which obtained such Common Stock directly from the Company; (6) distributions to any Huntsman Parent Company in accordance with the Tax Sharing Agreement; (7) payments to any Huntsman Parent Company for legal, audit and other expenses directly relating to the administration of such Huntsman Parent Company not to exceed $10.0 million in any fiscal year; (8) the payment of consideration by a third party to equity holders of the Company; (9) additional Restricted Payments in an aggregate amount not to exceed $225 million since the Designated Date; (10) the payment of dividends or distributions to any Huntsman Parent Company which are contemporaneously applied to pay dividends on common stock of the Huntsman Public Parent at a rate not to exceed $0.40 per share per annum (such amount to be appropriately adjusted to reflect any stock split, reverse stock split, stock dividend, stock issuance or similar transactions made after the Designated Date so that the aggregate amount of dividends payable after such transaction is the same as the amount payable immediately prior to such transaction); (11) payments of dividends on Disqualified Capital Stock issued in accordance with Section 4.12; and (12) if the Consolidated Leverage Ratio of the Company, calculated after giving pro forma effect to any repurchase under this clause (12), is less than 2.5 to 1.0, then the Company may repurchase or dividend to a Huntsman Parent Company to repurchase, up to an aggregate of $250 million of Common Stock of a Huntsman Parent Company. In determining the aggregate amount of Restricted Payments made subsequent to the Designated Date in accordance with clause (iii) the making of the immediately preceding paragraph, cash amounts expended pursuant to clauses (1), (2), (3)(ii)(A) and (4) shall be included in such calculation and Restricted Payments made pursuant to the other clauses of this paragraph shall not be so included. Not later than the date of making any Restricted Payment pursuant to clause (iii) of the second preceding paragraph or clause (9) of the immediately preceding paragraph, the Company shall deliver to the Trustee an officers’ certificate stating that such Restricted Payment complies with this Indenture and setting forth in reasonable detail the basis upon which the required calculations were computed, which calculations may be based upon the Company’s quarterly financial statements last provided to the Trustee pursuant to Section 4.09Permitted Investments.
Appears in 1 contract
Samples: Preferred Stock Subscription Agreement (Cga Group LTD)
Limitation on Restricted Payments. The Company shall notmade subsequent to the Issue Date (the amount expended for such purposes, and shall not cause or permit any of its Restricted Subsidiaries toif other than in cash, directly or indirectly, make any Restricted Payment if at being the time fair market value of such Restricted Payment or immediately after giving effect thereto, (i) a Default or an Event of Default shall have occurred and be continuing, (ii) the Company is not able to incur at least $1.00 of additional Indebtedness other than Permitted Indebtedness in compliance with Section 4.12, or (iii) the aggregate amount of Restricted Payments including such proposed Restricted Payment made after June 30, 2006, including, the Fair Market Value property as determined reasonably and in good faith by the Board of Managers Directors of the Company of non-cash amounts constituting Restricted Payments 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 the Company earned from June 30subsequent to February 26, 2006 through the last day of the last full fiscal quarter immediately preceding 1998 and on or 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 the Company from any Person (other than a Subsidiary of the Company) from the issuance and sale subsequent to June 30, 2006 of Qualified Capital Stock of the Company (other than Specified Venture Capital Stock) Issue Date and on or debt securities of the Company that are, upon issuance, convertible into or exchangeable for Qualified Capital Stock of the Company, but only when and prior to the extent such debt securities are converted into or exchanged for Reference Date of Qualified Capital Stock of the Company; 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 the Company from a holder of the Company’s 's Capital Stock subsequent (excluding, in the case of clauses (iii)(x) and (y), any net cash proceeds from a Public Equity Offering to June 30, 2006the extent used to redeem the Fixed Rate Notes in accordance with the provisions under paragraph 6(b) of the Fixed Rate Note); plus (z) $400 millionwithout duplication, the sum of (1) the aggregate amount returned in cash on or with respect to Investments (other than Permitted Investments) made subsequent to the Issue Date whether through interest payments, principal payments, dividends or other distributions or payments, (2) the net cash proceeds received by the Company or any of its Restricted Subsidiaries from the disposition of all or any portion of such Investments (other than to a Subsidiary of the Company) and (3) upon redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary, the fair market value of such Subsidiary; provided, however, that the sum of clauses (1), (2) and (3) above shall not exceed the aggregate amount of all such Investments made subsequent to the Issue Date. Notwithstanding the foregoing, the provisions set forth in the immediately preceding paragraph shall do not prohibit: (1) the payment of any dividend or the consummation of any irrevocable redemption within 60 days after the date of declaration of such dividend or notice of such redemption if the dividend or the payment of the redemption price, as the case may be, would have been permitted on the date of declarationdeclaration or notice; (2) if no Default or Event of Default shall have occurred and be continuing, the acquisition of any shares of Capital Stock of the Company, either (i) solely in exchange for shares of Qualified Capital Stock of the Company or (ii) through the application of net proceeds of a substantially concurrent sale for cash (other than to a Subsidiary of the Company) of shares 63 -55- of Qualified Capital Stock of the Company; (3) if no Default or Event of Default shall have occurred and be continuing, through the application of net cash proceeds of a substantially concurrent Equity Offering (other than to a Subsidiary of the Company); (3) the acquisition or repayment of any Indebtedness of the Company that is subordinate or junior in right of payment to the Notes either (i) solely in exchange for shares of Qualified Capital Stock of the Company, or (ii) if no Default or Event of Default shall have occurred and be continuing, through the application of net cash proceeds of (A) a substantially concurrent Equity Offering or (B) incurrence sale for cash of Refinancing Indebtedness, (in the case of (A) or (B), other than to a Subsidiary of the Company)) of (A) shares of Qualified Capital Stock of the Company or (B) Refinancing Indebtedness; (4) payments for the purpose of and in an amount equal to the amount required to permit the Company to redeem or repurchase its equity or options in respect thereof, in each case in connection with the terms of any employee stock option or stock purchase agreements or other agreements to compensate management or other employees; provided that such redemptions or repurchases pursuant to this clause (4) shall not exceed $3.0 million (which amount shall be increased by the amount of any net cash proceeds to the Company from (x) sales of Capital Stock of the Company to management or other employees subsequent to the Issue Date to the extent such amounts have not been included in clause (iii) in the foregoing paragraph and (y) any "key-man" life insurance policies which are used to make such redemptions or repurchases) in the aggregate; provided, further, that the cancellation of Indebtedness owing to the Company from management or other employees of the Company or any of its Restricted Subsidiaries in connection with a repurchase of Capital Stock of the Company will not be deemed to constitute a Restricted Payment under the Indenture; (5) repurchases of Capital Stock deemed to occur upon the exercise of stock options if such Capital Stock represents a portion of the exercise price thereof; (6) so long as no Default or Event of Default shall have occurred and be continuing, repurchases by payments not to exceed $500,000 in the aggregate to enable the Company ofto make payments to holders of its Capital Stock in lieu of issuance of fractional shares of its Capital Stock; (7) payments or other distributions made in connection with the Recapitalization; (8) if no Default or Event of Default shall have occurred and be continuing, or the declaration and payment of cash dividends to a Huntsman Parent Company to permit repurchases by a Huntsman Parent Company of, Common Stock holders of the Company or a Huntsman Parent Company from employees Preferred Stock commencing with the first scheduled dividend payment due subsequent to March 1, 2003; (9) prior to March 1, 2003, the Company's withholding and payment to any taxing authority of any cash amounts required to be withheld with respect to dividends paid to foreign holders of the Company Preferred Stock to the extent required by law; (10) the exchange of the Preferred Stock for the Exchange Debentures, provided that such exchange is permitted by Section 4.12; and (11) if no Default or any Event of its Subsidiaries or their authorized representatives upon the deathDefault shall have occurred and be continuing, disability or termination of employment of such employees, other Restricted Payments in 64 -56- an aggregate amount not to exceed $25 million in any calendar year; (5) the redemption or repurchase of any Common Stock of the Company held by a Restricted Subsidiary of the Company which obtained such Common Stock directly from the Company; (6) distributions to any Huntsman Parent Company in accordance with the Tax Sharing Agreement; (7) payments to any Huntsman Parent Company for legal, audit and other expenses directly relating to the administration of such Huntsman Parent Company not to exceed $10.0 million in any fiscal year; (8) the payment of consideration by a third party to equity holders of the Company; (9) additional Restricted Payments in an aggregate amount not to exceed $225 million since the Designated Date; (10) the payment of dividends or distributions to any Huntsman Parent Company which are contemporaneously applied to pay dividends on common stock of the Huntsman Public Parent at a rate not to exceed $0.40 per share per annum (such amount to be appropriately adjusted to reflect any stock split, reverse stock split, stock dividend, stock issuance or similar transactions made after the Designated Date so that the aggregate amount of dividends payable after such transaction is the same as the amount payable immediately prior to such transaction); (11) payments of dividends on Disqualified Capital Stock issued in accordance with Section 4.12; and (12) if the Consolidated Leverage Ratio of the Company, calculated after giving pro forma effect to any repurchase under this clause (12), is less than 2.5 to 1.0, then the Company may repurchase or dividend to a Huntsman Parent Company to repurchase, up to an aggregate of $250 million of Common Stock of a Huntsman Parent Companymillion. In determining the aggregate amount of Restricted Payments made subsequent to the Designated Issue Date in accordance with clause (iii) of the immediately preceding paragraph, cash (a) amounts expended (to the extent such expenditure is in the form of cash) pursuant to clauses (1), (22)(ii), (3)(ii)(A4), (8), (9) and (411) shall be included in such calculation and Restricted Payments made pursuant to the other clauses of this paragraph shall not be so included. Not later than the date of making any Restricted Payment calculation; provided that such expenditures pursuant to clause (iii4) shall not be included to the extent of the second preceding paragraph or clause (9) of the immediately preceding paragraph, cash proceeds received by the Company shall deliver to the Trustee an officers’ certificate stating that such Restricted Payment complies with this Indenture from any "key-man" life insurance policies and setting forth in reasonable detail the basis upon which the required calculations were computed, which calculations may be based upon the Company’s quarterly financial statements last provided to the Trustee (b) amounts expended pursuant to Section 4.09clauses (2)(i), (3), (5), (6), (7) and (10) shall be excluded from such calculation.
Appears in 1 contract
Samples: McMS Inc
Limitation on Restricted Payments. The Company shall and the Guarantors will not, and shall will not cause or permit any of its Restricted their Subsidiaries to, directly or indirectly, make any Restricted Payment if at the time of if, after giving effect to such Restricted Payment or immediately after giving effect theretoon a pro forma basis, (i) a Default or an Event of Default shall have occurred and be continuing, (ii) the Company is not able permitted to incur at least $1.00 of additional Indebtedness other than Permitted Indebtedness pursuant to the Debt Incurrence Ratio contained in compliance with Section 4.1247 57 4.10, or (iii) the aggregate amount of all Restricted Payments made by the Company and its Restricted Subsidiaries, including after giving effect to such proposed Restricted Payment made Payment, from and after June 30the Issue Date, 2006, including, the Fair Market Value as determined reasonably and in good faith by the Board of Managers of the Company of non-cash amounts constituting Restricted Payments shall would exceed the sum of: of (wa) 50% of the cumulative aggregate Consolidated Net Income of the Company for the period (or if cumulative taken as one accounting period) commencing on the first day of the first full fiscal quarter commencing after the Issue Date, to and including the last day of the fiscal quarter ended immediately prior to the date of such Restricted Payment (or, in the event Consolidated Net Income shall be for such period is a lossdeficit, then minus 100% of such loss) of the Company earned from June 30deficit), 2006 through the last day of the last full fiscal quarter immediately preceding the date the Restricted Payment occurs (the “Reference Date”) (treating such period as a single accounting period); plus (xb) 100% of the aggregate net cash proceeds Net Cash Proceeds received by the Company from any Person the sale of its Qualified Capital (and Liquidated Damages, if Stock (other than (1) to a Restricted Subsidiary of the CompanyCompany and (2) from the issuance and sale subsequent to June 30, 2006 of Qualified Capital Stock of the Company (other than Specified Venture Capital Stock) or debt securities of the Company that are, upon issuance, convertible into or exchangeable for Qualified Capital Stock of the Company, but only when and to the extent such debt securities are converted into or exchanged for applied in connection with a Qualified Capital Stock of Exchange), after the Company; 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 the Company from a holder of the Company’s Capital Stock subsequent to June 30, 2006; plus (z) $400 millionIssue Date. Notwithstanding the foregoing, the provisions set forth in the The immediately preceding paragraph shall paragraph, however, will not prohibit: prohibit (1i) a Qualified Exchange, (ii) the payment of any dividend (a) on Qualified Capital Stock within 60 days after the date of its declaration of if such dividend if the dividend would could have been permitted made on the date of declaration; such declaration in compliance with the foregoing provisions or (2b) to minority shareholders of any Subsidiary on a pro rata basis, (iii) the acquisition redemption of any shares of Capital the Series A Preferred Stock of Urohealth, Inc. (California), for total consideration of not more than $1.6 million on or before June 30, 1997 or (iv) the Company, either (i) solely in exchange for shares of Qualified Capital Stock redemption of the Company or (ii) if no Default or Event of Default shall have occurred and be continuing, through Microsurge convertible subordinated notes outstanding on the application of net cash proceeds of a substantially concurrent Equity Offering (other than Issue Date prior to a Subsidiary of the Company); (3) the acquisition or repayment of any Indebtedness of the Company that is subordinate or junior in right of payment to the Notes either (i) solely in exchange for shares of Qualified Capital Stock of the Company, or (ii) if no Default or Event of Default shall have occurred and be continuing, through the application of net cash proceeds of (A) a substantially concurrent Equity Offering or (B) incurrence for cash of Refinancing Indebtedness, (in the case of (A) or (B), other than to a Subsidiary of the Company); (4) so long as no Default or Event of Default shall have occurred and be continuing, repurchases by the Company of, or dividends to a Huntsman Parent Company to permit repurchases by a Huntsman Parent Company of, Common Stock of the Company or a Huntsman Parent Company from employees of the Company or any of its Subsidiaries or their authorized representatives upon the death, disability or termination of employment of such employees, maturity in an aggregate amount not to exceed $25 million in any calendar year; (5) the redemption or repurchase 6.0 million. The full amount of any Common Stock Restricted Payment made pursuant to the foregoing clause (ii) of the Company held by a Restricted Subsidiary immediately preceding sentence, however, will be deducted (without duplication) in the calculation of the Company which obtained such Common Stock directly from the Company; (6) distributions to any Huntsman Parent Company in accordance with the Tax Sharing Agreement; (7) payments to any Huntsman Parent Company for legal, audit and other expenses directly relating to the administration of such Huntsman Parent Company not to exceed $10.0 million in any fiscal year; (8) the payment of consideration by a third party to equity holders of the Company; (9) additional Restricted Payments in an aggregate amount not to exceed $225 million since the Designated Date; (10) the payment of dividends or distributions to any Huntsman Parent Company which are contemporaneously applied to pay dividends on common stock of the Huntsman Public Parent at a rate not to exceed $0.40 per share per annum (such amount to be appropriately adjusted to reflect any stock split, reverse stock split, stock dividend, stock issuance or similar transactions made after the Designated Date so that the aggregate amount of dividends payable after such transaction is the same as the amount payable immediately prior to such transaction); (11) payments of dividends on Disqualified Capital Stock issued in accordance with Section 4.12; and (12) if the Consolidated Leverage Ratio of the Company, calculated after giving pro forma effect to any repurchase under this clause (12), is less than 2.5 to 1.0, then the Company may repurchase or dividend to a Huntsman Parent Company to repurchase, up to an aggregate of $250 million of Common Stock of a Huntsman Parent Company. In determining the aggregate amount of Restricted Payments available to be made subsequent referred to the Designated Date in accordance with clause (iii) of the immediately preceding paragraph, cash amounts expended pursuant to clauses (1), (2), (3)(ii)(A) and (4) shall be included in such calculation and Restricted Payments made pursuant to the other clauses of this paragraph shall not be so included. Not later than the date of making any Restricted Payment pursuant to clause (iii) of the second preceding paragraph or clause (9) of the immediately preceding paragraph, the Company shall deliver to the Trustee an officers’ certificate stating that such Restricted Payment complies with this Indenture and setting forth in reasonable detail the basis upon which the required calculations were computed, which calculations may be based upon the Company’s quarterly financial statements last provided to the Trustee pursuant to Section 4.09.
Appears in 1 contract
Samples: Indenture (Urohealth Systems Inc)
Limitation on Restricted Payments. The Company shall not, and shall not cause or permit any of its Restricted Subsidiaries toSubsidiaries, directly or indirectly, to make any Restricted Payment if at the time of such Restricted Payment or immediately after giving effect thereto, Payment: (i) a Default or an Event of Default shall have occurred and be continuing, continuing or shall occur as a consequence thereof; (ii) after giving effect to the Company is not able proposed Restricted Payment, the amount of such Restricted Payment, when added to incur at least $1.00 of additional Indebtedness other than Permitted Indebtedness in compliance with Section 4.12, or (iii) the aggregate amount of all Restricted Payments including such proposed Restricted Payment made after June 30the Issue Date, 2006, including, the Fair Market Value as determined reasonably and in good faith by the Board of Managers of the Company of non-cash amounts constituting Restricted Payments shall exceed exceeds the sum of: (wa) 50% of the cumulative Company's Consolidated Net Income accrued during the period (or taken as a single period) commencing on July 1, 1997 to and including the fiscal quarter ended immediately prior to the date of such Restricted Payment (or, if cumulative such aggregate Consolidated Net Income shall be a lossdeficit, minus 100% of such loss) of the Company earned from June 30, 2006 through the last day of the last full fiscal quarter immediately preceding the date the Restricted Payment occurs (the “Reference Date”) (treating such period as a single accounting periodaggregate deficit); plus (xb) 100% of the aggregate net cash proceeds received by from the Company from any Person issuance and sale of the Company's Capital Stock (other than to a Subsidiary of the Company) from that is not Disqualified Stock during the issuance period (taken as a single period) commencing with the Issue Date; and sale subsequent to June 30, 2006 of Qualified Capital Stock of (c) $50,000,000; or (iii) the Company (other than Specified Venture Capital Stock) or debt securities would not be able to incur an additional $1.00 of the Company that are, upon issuance, convertible into or exchangeable for Qualified Capital Stock of the Company, but only when and Indebtedness pursuant to the extent such debt securities are converted into or exchanged for Qualified Capital Stock of the Company; 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 the Company from a holder of the Company’s Capital Stock subsequent to June 30, 2006; plus (z) $400 millionSection 4.11 hereof. Notwithstanding the foregoing, the provisions set forth in the immediately preceding paragraph shall not prohibitCompany may: (1w) the payment of pay any dividend within 60 days after the date of declaration of such dividend thereof if the dividend payment thereof would have been permitted complied with the limitations of this Section 4.10 on the date of declaration; (2x) the acquisition of any retire shares of Capital Stock of the Company, either (i) solely in exchange for shares of Qualified 's Capital Stock or the Company's or a Subsidiary of the Company or (ii) if no Default or Event Company's Indebtedness out of Default shall have occurred and be continuing, through the application of net cash proceeds of a substantially concurrent Equity Offering sale (other than to a Subsidiary of the Company) of shares of the Company's Capital Stock (other than Disqualified Stock); (3y) the acquisition or repayment of any Indebtedness of the Company that is subordinate or junior make Investments in right of payment Joint Ventures, when added to the Notes either (i) solely in exchange for shares of Qualified Capital Stock of the Company, or (ii) if no Default or Event of Default shall have occurred and be continuing, through the application of net cash proceeds of (A) a substantially concurrent Equity Offering or (B) incurrence for cash of Refinancing Indebtedness, (in the case of (A) or (B), other than to a Subsidiary of the Company); (4) so long as no Default or Event of Default shall have occurred and be continuing, repurchases by the Company of, or dividends to a Huntsman Parent Company to permit repurchases by a Huntsman Parent Company of, Common Stock of the Company or a Huntsman Parent Company from employees of the Company or any of its Subsidiaries or their authorized representatives upon the death, disability or termination of employment of such employees, in an aggregate amount not to exceed $25 million in any calendar year; (5) the redemption or repurchase of any Common Stock of the Company held by a Restricted Subsidiary of the Company which obtained such Common Stock directly from the Company; (6) distributions to any Huntsman Parent Company in accordance with the Tax Sharing Agreement; (7) payments to any Huntsman Parent Company for legal, audit and other expenses directly relating to the administration of such Huntsman Parent Company not to exceed $10.0 million in any fiscal year; (8) the payment of consideration by a third party to equity holders of the Company; (9) additional Restricted Payments in an aggregate amount not to exceed $225 million since the Designated Date; (10) the payment of dividends or distributions to any Huntsman Parent Company which are contemporaneously applied to pay dividends on common stock of the Huntsman Public Parent at a rate not to exceed $0.40 per share per annum (such amount to be appropriately adjusted to reflect any stock split, reverse stock split, stock dividend, stock issuance or similar transactions made after the Designated Date so that the aggregate amount of dividends payable all such other Investments made pursuant to this clause (y) after the Issue Date, not exceeding at any time 5% of Consolidated Tangible Assets (with each such transaction is Investment being valued as of the same as the amount payable immediately prior date made and without regard to such transactionsubsequent changes in value); (11) payments of dividends on Disqualified Capital Stock issued in accordance with Section 4.12; and (12z) if the Consolidated Leverage Ratio of the Companymake Investments, calculated after giving pro forma effect when added to any repurchase under this clause (12), is less than 2.5 to 1.0, then the Company may repurchase or dividend to a Huntsman Parent Company to repurchase, up to an aggregate of $250 million of Common Stock of a Huntsman Parent Company. In determining the aggregate amount of all such other Investments made pursuant to this clause (z) after the Issue Date, not exceeding at any time 2.5% of Consolidated Tangible Assets (with each such Investment being valued as of the date made and without regard to subsequent changes in value); provided, however, that each Restricted Payment described in clauses (w) and (x) above shall be taken into account for purposes of computing the aggregate amount of all Restricted Payments made subsequent pursuant to the Designated Date in accordance with clause (iiiii) of the immediately preceding paragraph, cash amounts expended pursuant to clauses (1), (2), (3)(ii)(A) and (4) shall be included in such calculation and Restricted Payments made pursuant to the other clauses of this paragraph shall not be so included. Not later than the date of making any Restricted Payment pursuant to clause (iii) of the second preceding paragraph or clause (9) of the immediately preceding paragraph, the Company shall deliver to the Trustee an officers’ certificate stating that such Restricted Payment complies with this Indenture and setting forth in reasonable detail the basis upon which the required calculations were computed, which calculations may be based upon the Company’s quarterly financial statements last provided to the Trustee pursuant to Section 4.09.
Appears in 1 contract
Samples: Healthsouth Corp
Limitation on Restricted Payments. The Company shall not, and shall not cause or permit any of its Restricted Subsidiaries toSubsidiaries, directly or indirectly, to make any Restricted Payment if at the time of such Restricted Payment or immediately after giving effect thereto, Payment: (i) a Default or an Event of Default shall have occurred and be continuing, continuing or shall occur as a consequence thereof; (ii) after giving effect to the Company is not able proposed Restricted Payment, the amount of such Restricted Payment, when added to incur at least $1.00 of additional Indebtedness other than Permitted Indebtedness in compliance with Section 4.12, or (iii) the aggregate amount of all Restricted Payments including such proposed Restricted Payment made after June 30September 25, 20062000, including, the Fair Market Value as determined reasonably and in good faith by the Board of Managers of the Company of non-cash amounts constituting Restricted Payments shall exceed exceeds the sum of: (wa) 50% of the cumulative Company’s Consolidated Net Income accrued during the period (or taken as a single period) commencing on July 1, 1997 to and including the fiscal quarter ended immediately prior to the date of such Restricted Payment (or, if cumulative such aggregate Consolidated Net Income shall be a lossdeficit, minus 100% of such loss) of the Company earned from June 30, 2006 through the last day of the last full fiscal quarter immediately preceding the date the Restricted Payment occurs (the “Reference Date”) (treating such period as a single accounting periodaggregate deficit); plus (xb) 100% of the aggregate net cash proceeds received by from the Company from any Person issuance and sale of the Company’s Capital Stock (other than to a Subsidiary of the Company) from that is not Disqualified Stock during the issuance period (taken as a single period) commencing with the Issue Date; and sale subsequent to June 30, 2006 of Qualified Capital Stock of (c) $50,000,000; or (iii) the Company (other than Specified Venture Capital Stock) or debt securities would not be able to incur an additional $1.00 of the Company that are, upon issuance, convertible into or exchangeable for Qualified Capital Stock of the Company, but only when and Indebtedness pursuant to the extent such debt securities are converted into or exchanged for Qualified Capital Stock of the Company; 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 the Company from a holder of the Company’s Capital Stock subsequent to June 30, 2006; plus (z) $400 millionSection 4.11 hereof. Notwithstanding the foregoing, the provisions set forth in the immediately preceding paragraph shall not prohibitCompany may: (1w) the payment of pay any dividend within 60 days after the date of declaration of such dividend thereof if the dividend payment thereof would have been permitted complied with the limitations of this Section 4.10 on the date of declaration; (2x) the acquisition of any retire shares of Capital Stock of the Company, either (i) solely in exchange for shares of Qualified ’s Capital Stock or the Company’s or a Subsidiary of the Company or (ii) if no Default or Event Company’s Indebtedness out of Default shall have occurred and be continuing, through the application of net cash proceeds of a substantially concurrent Equity Offering sale (other than to a Subsidiary of the Company) of shares of the Company’s Capital Stock (other than Disqualified Stock); (3y) the acquisition or repayment of any Indebtedness of the Company that is subordinate or junior make Investments in right of payment Joint Ventures, when added to the Notes either (i) solely in exchange for shares of Qualified Capital Stock of the Company, or (ii) if no Default or Event of Default shall have occurred and be continuing, through the application of net cash proceeds of (A) a substantially concurrent Equity Offering or (B) incurrence for cash of Refinancing Indebtedness, (in the case of (A) or (B), other than to a Subsidiary of the Company); (4) so long as no Default or Event of Default shall have occurred and be continuing, repurchases by the Company of, or dividends to a Huntsman Parent Company to permit repurchases by a Huntsman Parent Company of, Common Stock of the Company or a Huntsman Parent Company from employees of the Company or any of its Subsidiaries or their authorized representatives upon the death, disability or termination of employment of such employees, in an aggregate amount not to exceed $25 million in any calendar year; (5) the redemption or repurchase of any Common Stock of the Company held by a Restricted Subsidiary of the Company which obtained such Common Stock directly from the Company; (6) distributions to any Huntsman Parent Company in accordance with the Tax Sharing Agreement; (7) payments to any Huntsman Parent Company for legal, audit and other expenses directly relating to the administration of such Huntsman Parent Company not to exceed $10.0 million in any fiscal year; (8) the payment of consideration by a third party to equity holders of the Company; (9) additional Restricted Payments in an aggregate amount not to exceed $225 million since the Designated Date; (10) the payment of dividends or distributions to any Huntsman Parent Company which are contemporaneously applied to pay dividends on common stock of the Huntsman Public Parent at a rate not to exceed $0.40 per share per annum (such amount to be appropriately adjusted to reflect any stock split, reverse stock split, stock dividend, stock issuance or similar transactions made after the Designated Date so that the aggregate amount of dividends payable all such other Investments made pursuant to this clause (y) (or such other Investments as would have been made pursuant to this clause (y) had such clause been in effect) after September 25, 2000, not exceeding at any time 5% of Consolidated Tangible Assets (with each such transaction is Investment being valued as of the same as the amount payable immediately prior date made and without regard to such transactionsubsequent changes in value); (11) payments of dividends on Disqualified Capital Stock issued in accordance with Section 4.12; and (12z) if the Consolidated Leverage Ratio of the Companymake Investments, calculated after giving pro forma effect when added to any repurchase under this clause (12), is less than 2.5 to 1.0, then the Company may repurchase or dividend to a Huntsman Parent Company to repurchase, up to an aggregate of $250 million of Common Stock of a Huntsman Parent Company. In determining the aggregate amount of all such other Investments made pursuant to this clause (z) (or such other Investments as would have been made pursuant to this clause (z) had such clause been in effect) after September 25, 2000, not exceeding at any time 2.5% of Consolidated Tangible Assets (with each such Investment being valued as of the date made and without regard to subsequent changes in value); provided, however, that each Restricted Payment described in clauses (w) and (x) above shall be taken into account for purposes of computing the aggregate amount of all Restricted Payments made subsequent pursuant to the Designated Date in accordance with clause (iiiii) of the immediately preceding paragraph, cash amounts expended pursuant to clauses (1), (2), (3)(ii)(A) and (4) shall be included in such calculation and Restricted Payments made pursuant to the other clauses of this paragraph shall not be so included. Not later than the date of making any Restricted Payment pursuant to clause (iii) of the second preceding paragraph or clause (9) of the immediately preceding paragraph, the Company shall deliver to the Trustee an officers’ certificate stating that such Restricted Payment complies with this Indenture and setting forth in reasonable detail the basis upon which the required calculations were computed, which calculations may be based upon the Company’s quarterly financial statements last provided to the Trustee pursuant to Section 4.09.
Appears in 1 contract
Samples: Indenture (Healthsouth Corp)
Limitation on Restricted Payments. The Company shall notUnless otherwise required in order to maintain the Borrower's status as a real estate investment trust, and shall not cause declare or permit pay any dividend (other than dividends payable solely in the same class of its Restricted Subsidiaries toCapital Stock) 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 the Borrower or any warrants or options to purchase any such Capital Stock, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of the Borrower or any Subsidiary (collectively, "Restricted Payments"); provided, that, notwithstanding the foregoing, (a) during any period of four consecutive fiscal quarters of the Borrower, the Borrower may make Restricted Payments in an aggregate amount not to exceed 90% of Funds From Operations for such period and (b) in addition to Restricted Payments made pursuant to clause (a) above, the Borrower may make Restricted Payments on any Restricted Payment if at the time of such Restricted Payment or immediately date so long as, after giving effect thereto, (i) a Default or an Event of Default shall have occurred and be continuing, (ii) the Company is not able to incur at least $1.00 of additional Indebtedness other than Permitted Indebtedness in compliance with Section 4.12, or (iii) the aggregate amount of Restricted Payments including such proposed Restricted Payment made after June 30, 2006, including, pursuant to this clause (b) since the Fair Market Value as determined reasonably and in good faith by the Board of Managers of the Company of non-cash amounts constituting Restricted Payments Closing Date shall not exceed the sum of: (w) 5010% of the cumulative Consolidated GAAP Net Income (or if cumulative Consolidated Net Income shall be a loss, minus 100% Worth determined as of such loss) of the Company earned from June 30, 2006 through the last day of the last full most recent fiscal quarter immediately preceding 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 the Company from any Person (other than a Subsidiary of the Company) from the issuance and sale subsequent for which financial statements have been delivered pursuant to June 30Section 6.1, 2006 of Qualified Capital Stock of the Company (other than Specified Venture Capital Stock) or debt securities of the Company that are, upon issuance, convertible into or exchangeable for Qualified Capital Stock of the Company, but only when and after giving pro forma effect to the extent such debt securities are converted into or exchanged for Qualified Capital Stock of the Company; 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 the Company from a holder of the Company’s Capital Stock subsequent to June 30, 2006; plus (z) $400 million. Notwithstanding the foregoing, the provisions set forth in the immediately preceding paragraph shall not prohibit: (1) the payment of any dividend within 60 days after the date of declaration making of such dividend if the dividend would have been permitted on the date of declaration; (2) the acquisition of Restricted Payments and any shares of Capital Stock of the Company, either (i) solely in exchange for shares of Qualified Capital Stock of the Company or other Restricted Payments made after such last day and (ii) if no Default or Event of Default shall have occurred and be continuing, through the application of net cash proceeds of a substantially concurrent Equity Offering (other than to a Subsidiary of the Company); (3) the acquisition or repayment of any Indebtedness of the Company that is subordinate or junior in right of payment to the Notes either (i) solely in exchange for shares of Qualified Capital Stock of the Company, or (ii) if no Default or Event of Default shall have occurred and be continuing, through the application of net cash proceeds of (A) a substantially concurrent Equity Offering or (B) incurrence for cash of Refinancing Indebtedness, (in the case of (A) or (B), other than to a Subsidiary of the Company); (4) so long as no Default or Event of Default shall have occurred and be continuing, repurchases by the Company of, or dividends to a Huntsman Parent Company to permit repurchases by a Huntsman Parent Company of, Common Stock of the Company or a Huntsman Parent Company from employees of the Company or any of its Subsidiaries or their authorized representatives upon the death, disability or termination of employment of such employees, in an aggregate amount not to exceed $25 million in any calendar year; (5) the redemption or repurchase of any Common Stock of the Company held by a Restricted Subsidiary of the Company which obtained such Common Stock directly from the Company; (6) distributions to any Huntsman Parent Company in accordance with the Tax Sharing Agreement; (7) payments to any Huntsman Parent Company for legal, audit and other expenses directly relating to the administration of such Huntsman Parent Company not to exceed $10.0 million in any fiscal year; (8) the payment of consideration by a third party to equity holders of the Company; (9) additional Restricted Payments in an aggregate amount not to exceed $225 million since the Designated Date; (10) the payment of dividends or distributions to any Huntsman Parent Company which are contemporaneously applied to pay dividends on common stock of the Huntsman Public Parent at a rate not to exceed $0.40 per share per annum (such amount to be appropriately adjusted to reflect any stock split, reverse stock split, stock dividend, stock issuance or similar transactions made after the Designated Date so that the aggregate amount of dividends payable after such transaction is the same as the amount payable immediately prior to such transaction); (11) payments of dividends on Disqualified Capital Stock issued in accordance with Section 4.12; and (12) if the Consolidated Leverage Ratio of the Company, calculated after giving pro forma effect to any repurchase under this clause (12), is less than 2.5 to 1.0, then the Company may repurchase or dividend to a Huntsman Parent Company to repurchase, up to an aggregate of $250 million of Common Stock of a Huntsman Parent Company. In determining the aggregate amount of Restricted Payments made subsequent to the Designated Date in accordance with clause (iii) of the immediately preceding paragraph, cash amounts expended pursuant to clauses (1), (2), (3)(ii)(A) and (4) shall be included in such calculation and Restricted Payments made pursuant to the other clauses of this paragraph shall not be so included. Not later than the date of making any Restricted Payment pursuant to clause (iii) of the second preceding paragraph or clause (9) of the immediately preceding paragraph, the Company shall deliver to the Trustee an officers’ certificate stating that such Restricted Payment complies with this Indenture and setting forth in reasonable detail the basis upon which the required calculations were computed, which calculations may be based upon the Company’s quarterly financial statements last provided to the Trustee pursuant to Section 4.09.
Appears in 1 contract
Samples: Credit Agreement (Kimco Realty Corp)
Limitation on Restricted Payments. The Company shall not, and shall not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, make any Restricted Payment if at the time of if, after giving effect to such Restricted Payment or immediately after giving effect theretoon a pro forma basis, (i1) a Default or an Event of Default shall have occurred and be continuing, (ii2) the Company is not able permitted to incur at least $1.00 of additional Indebtedness other than Permitted Indebtedness pursuant to the Debt Incurrence Ratio set forth in compliance with Section 4.121008 hereof, or (iii3) the aggregate amount of all Restricted Payments made by the Company and its Subsidiaries, including after giving effect to such proposed Restricted Payment made Payment, from and after June 30the Issue Date, 2006, including, the Fair Market Value as determined reasonably and in good faith by the Board of Managers of the Company of non-cash amounts constituting Restricted Payments shall would exceed the sum of: of (wa) 50% of the cumulative aggregate Consolidated Net Income of the Company and its Subsidiaries for the period (or if cumulative taken as one accounting period), commencing on the first day of the first full fiscal quarter commencing after the Issue Date, to and including the last day of the fiscal quarter ended immediately prior to the date of each such calculation (or, in the event Consolidated Net Income shall be for such period is a lossdeficit, then minus 100% of such lossdeficit), (b) of the Company earned from June 30, 2006 through the last day of the last full fiscal quarter immediately preceding 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 Net Cash Proceeds received by the Company from any Person (other than a Subsidiary the sale of the Company) from the issuance and sale subsequent to June 30, 2006 of its Qualified Capital Stock (including Qualified Capital Stock issued upon the exercise of the Company (other than Specified Venture options, warrants, or rights to purchase Qualified Capital Stock) or options, warrants or rights to purchase Qualified Capital Stock or of debt securities of the Company that are, upon issuance, convertible have been converted into or exchangeable for Qualified Capital Stock of the Company, but only when and to the extent such debt securities are converted into or exchanged for Qualified Capital Stock of the Company; 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 the Company from a holder of the Company’s Capital Stock subsequent to June 30, 2006; plus (z) $400 million. Notwithstanding the foregoing, the provisions set forth in the immediately preceding paragraph shall 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) the acquisition of any shares of Capital Stock of the Company, either other than (i) solely in exchange for shares of Qualified Capital Stock to a Subsidiary of the Company or (ii) if no Default to the extent applied in connection with a Qualified Exchange) after the Issue Date, (c) an amount equal to the net reduction in Investments (including by way of dividends, dispositions or Event of Default shall have occurred and be continuingrepayments, through or the application of net cash proceeds release of a substantially concurrent Equity Offering (other than to guarantee constituting a Subsidiary of the Company); (3Restricted Payment) the acquisition or repayment of any Indebtedness of by the Company that is subordinate or junior in right of payment and its Subsidiaries subsequent to the Notes either Issue Date in any Unrestricted Subsidiary, but only to the extent such amount is not included in Consolidated Net Income, and (id) solely in exchange for shares of Qualified Capital Stock of the Company$20,000,000. The immediately preceding paragraph, or however, shall not prohibit (ii) if no Default or Event of Default shall have occurred and be continuing, through the application of net cash proceeds of (A) a substantially concurrent Equity Offering or (B) incurrence for cash of Refinancing Indebtedness, (in the case of (A) or (B), other than to a Subsidiary of the Company); (4w) so long as no Default or Event of Default shall have occurred and be continuingcontinuing or should occur as a consequence thereof, repurchases any Refinancing of Indebtedness otherwise permitted by clause (c) of the Company of, or dividends to a Huntsman Parent Company to permit repurchases by a Huntsman Parent Company of, Common definition of "Permitted Indebtedness"; (x) the repurchase of Capital Stock of the Company or a Huntsman Parent options to purchase Capital Stock of the Company from employees of the Company or any of its Subsidiaries or their authorized representatives upon the death, disability or termination of employment of such employees, in an aggregate amount not to exceed $25 million in any calendar year; (5) the redemption or repurchase of any Common Stock of the Company held by a Restricted Subsidiary of the Company which obtained such Common Stock directly from the Company; (6) distributions to any Huntsman Parent Company in accordance with the Tax Sharing Agreement; (7) payments to any Huntsman Parent Company for legal, audit and other expenses directly relating pursuant to the administration forms of such Huntsman Parent Company not agreements under which employees may purchase or are granted the option to exceed $10.0 million in any fiscal year; (8) the payment purchase, shares of consideration by a third party to equity holders Capital Stock of the Company; , (9y) additional Restricted Payments in an aggregate amount not to exceed $225 million since the Designated Date; a Qualified Exchange, or (10z) the payment of dividends any dividend on Capital Stock within 60 days after the date of its declaration if such dividend could have been made on the date of such declaration in compliance with the foregoing provisions. The full amount of any payment made pursuant to clauses (x), and (z) (but not pursuant to clauses (w) or distributions to any Huntsman Parent Company which are contemporaneously applied to pay dividends on common stock (y)) of the Huntsman Public Parent at a rate not to exceed $0.40 per share per annum (such amount to immediately preceding sentence will be appropriately adjusted to reflect any stock split, reverse stock split, stock dividend, stock issuance or similar transactions made after the Designated Date so that the aggregate amount treated as Restricted Payments for purposes of dividends payable after such transaction is the same as the amount payable immediately prior to such transaction); (11) payments of dividends on Disqualified Capital Stock issued in accordance with Section 4.12; and (12) if the Consolidated Leverage Ratio of the Company, calculated after giving pro forma effect to any repurchase under this clause (12), is less than 2.5 to 1.0, then the Company may repurchase or dividend to a Huntsman Parent Company to repurchase, up to an aggregate of $250 million of Common Stock of a Huntsman Parent Company. In determining calculating the aggregate amount of Restricted Payments made subsequent pursuant to the Designated Date in accordance with clause (iii) of the immediately preceding paragraph. Section 1010 Limitation on Dividends and Other Payment Restrictions Affecting Subsidiaries. The Company shall not, cash amounts expended and shall not permit any of its Subsidiaries to, directly or indirectly, create, assume or suffer to exist any consensual restriction on the ability of any Subsidiary of the Company to pay dividends or make other distributions to or on behalf of, or to pay any obligation to or on behalf of, or otherwise to transfer assets or property to or on behalf of, or make or pay loans or advances to or on behalf of, the Company or any Subsidiary of the Company, except (a) restrictions imposed by the Securities or this Indenture or any other instrument governing debt securities of the Company incurred in compliance with Section 1008 that are not materially more restrictive, taken as a whole, than those contained in the Securities and this Indenture, (b) restrictions imposed by applicable law, (c) existing restrictions under Indebtedness outstanding on the Issue Date, (d) restrictions under any Acquired Indebtedness not incurred in violation of this Indenture or any agreement relating to any property, asset, or business acquired by the Company or any of its Subsidiaries, which restrictions are not applicable to any person, other than the person acquired, or to any property, asset or business, other than the property, assets and business so acquired, (e) any such restriction or requirement imposed by Indebtedness incurred under paragraph (b) of the definition of "Permitted Indebtedness" provided such restrictions are not materially more restrictive, taken as a whole, than customary provisions in comparable financings, (f) restrictions with respect solely to a Subsidiary of the Company imposed pursuant to a binding agreement which has been entered into for the sale or disposition of all or substantially all of the Equity Interests or assets of such Subsidiary, provided such restrictions apply solely to the Equity Interests or assets of such Subsidiary which are being sold, (g) customary restrictions on transfers of property contained in any security agreement (including a Capital Lease Obligation) securing Indebtedness of the Company or a Subsidiary otherwise permitted under this Indenture, (h) in connection with and pursuant to permitted Refinancings, replacements of restrictions imposed pursuant to clauses (1a), (2), c) or (3)(ii)(Ad) and (4) shall be included in such calculation and Restricted Payments made pursuant to the other clauses of this paragraph that are not more restrictive than those being replaced and do not apply to any other person or assets than those that would have been covered by the restrictions in the Indebtedness so refinanced, and (i) customary limitations on dispositions or distributions of assets or property that are subject to joint venture agreements or similar arrangements. Notwithstanding the foregoing, neither (a) customary provisions restricting subletting or assignment of any lease entered into in the ordinary course of business, consistent with industry practice, nor (b) Liens permitted under the terms of this Indenture shall not in and of themselves be so included. Not later than considered a restriction on the date of making any Restricted Payment pursuant to clause (iii) ability of the second preceding paragraph applicable Subsidiary to transfer such agreement or clause (9) of assets, as the immediately preceding paragraph, the Company shall deliver to the Trustee an officers’ certificate stating that such Restricted Payment complies with this Indenture and setting forth in reasonable detail the basis upon which the required calculations were computed, which calculations case may be based upon the Company’s quarterly financial statements last provided to the Trustee pursuant to Section 4.09be.
Appears in 1 contract
Samples: Indenture (Imax Corp)
Limitation on Restricted Payments. The Company shall not, and shall not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, (a) purchase, redeem or otherwise acquire or retire for value any Capital Stock of the Company, or any warrants, rights or options to acquire shares of any class of such Capital Stock, other than through the exchange therefor solely of Qualified Capital Stock of the Company or warrants, rights or options to acquire Qualified Capital Stock of the Company, (b) make any principal payment on, purchase, defease, redeem, prepay, decrease or otherwise acquire or retire for value, prior to any scheduled final maturity, scheduled repayment or scheduled sinking fund payment, any Subordinated Indebtedness of the Company or (c) make any Investment (other than Permitted Investments) in any Person (each of the foregoing prohibited actions set forth in clauses (a), (b) and (c) being referred to as a "Restricted Payment ---------- Payment"), if at the time of such proposed Restricted Payment or immediately ------- after giving effect thereto, (i) a Default or an Event of Default shall have has occurred and be continuingis continuing or would result therefrom, or (ii) the Company is not able to incur Incur at least $$ 1.00 of additional Indebtedness other than Permitted Indebtedness in compliance accordance with paragraph (b) of Section 4.124.04 (as if such Restricted Payment had been made as of the last day of the Four Quarter Period), or (iii) the aggregate amount of Restricted Payments (including such proposed Restricted Payment Payment) made after June 30, 2006, including, subsequent to the Fair Market Value as determined reasonably and in good faith by the Board of Managers of the Company of non-cash amounts constituting Restricted Payments shall Issue Date exceeds or would exceed the sum of: (wv) 50% of the cumulative Consolidated Net Income (or if cumulative Consolidated Net Income shall be a loss, minus 100% of such loss) of the Company earned from June 30, 2006 through during the last day of the last full fiscal quarter immediately preceding the date the Restricted Payment occurs (the “Reference Date”) period (treating such period as a single accounting period)) from 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; plus (xw) 100% of the aggregate net cash proceeds Net Equity Proceeds received by the Company from any Person (other than a Subsidiary of the Company) from the issuance and sale subsequent to June 30, 2006 the Issue Date of Qualified Capital Stock of the Company other than any Qualified Capital Stock sold to a Subsidiary of the Company; (x) the aggregate net cash proceeds received after the Issue Date by the Company (other than Specified Venture Capital Stockfrom any of its Subsidiaries) upon the exercise of any options, warrants or debt securities rights to purchase shares of the Company that are, upon issuance, convertible into or exchangeable for Qualified Capital Stock of the Company, but only when and ; (y) the aggregate net cash proceeds received after the Issue Date by the Company from the issuance or sale (other than to the extent such any of its Subsidiaries) of debt securities are or shares of Disqualified Capital Stock that have been converted into or exchanged for Qualified Capital Stock of the Company; plus (y) without duplication of any amounts included in clause (iii)(x) above, 100% of together with the aggregate net cash proceeds of any equity contribution received by the Company from a holder at the time of the Company’s Capital Stock subsequent to June 30, 2006such conversion or exchange; plus and (z) $400 millionan amount equal to the net reduction in Investments, subsequent to the date of the Indenture, in any Person resulting from payments of interest on debt, dividends, repayments of loans or advances, return of capital, or other transfers of property (but only to the extent such distributions are not included in the calculation of Consolidated Net Income), in each case, to the Company or any Subsidiary from any Person, not to exceed in the case of any Person, the amount of Investments previously made by the Company or any Subsidiary in such Person and which was treated as a Restricted Payment. Notwithstanding the foregoing, the these provisions set forth in the immediately preceding paragraph shall 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) the acquisition of any shares of Capital Stock of the CompanyCompany or warrants, rights or options to acquire Capital Stock of the Company either (i) solely in exchange for shares of Qualified Capital Stock of the Company or warrants, rights or options to acquire Qualified Capital Stock of the Company, or (ii) if no Default or Event of Default shall have occurred and be continuing, through the application of net cash proceeds of a substantially concurrent Equity Offering sale for cash (other than to a Subsidiary of the Company)) of shares of Qualified Capital Stock of the Company or warrants, rights or options to acquire Qualified Capital Stock of the Company; (32) the acquisition or repayment of any Subordinated Indebtedness of the Company that is subordinate or junior in right of payment to the Notes either (i) solely in exchange for shares of Qualified Capital Stock of the Company, or (ii) if through the application of net proceeds of a substantially concurrent sale for cash (other than to a Subsidiary of the Company) of (A) shares of Qualified Capital Stock of the Company or warrants, rights or options to acquire Qualified Capital Stock of the Company or (B) Permitted Refinancing Indebtedness; or (3) loans by the Company or any Subsidiary to employees in the ordinary course of business up to an aggregate principal amount of $250,000 at any one time outstanding; provided, however, -------- ------- that in the case of clauses (1), (2) and (3) of this paragraph, no Default or Event of Default shall have occurred and be continuing, through continuing at the application of net cash proceeds of (A) a substantially concurrent Equity Offering or (B) incurrence for cash of Refinancing Indebtedness, (in the case of (A) or (B), other than to a Subsidiary of the Company); (4) so long as no Default or Event of Default shall have occurred and be continuing, repurchases by the Company of, or dividends to a Huntsman Parent Company to permit repurchases by a Huntsman Parent Company of, Common Stock of the Company or a Huntsman Parent Company from employees of the Company or any of its Subsidiaries or their authorized representatives upon the death, disability or termination of employment time of such employees, in an aggregate amount not to exceed $25 million in any calendar year; (5) the redemption payment or repurchase of any Common Stock of the Company held by as a Restricted Subsidiary of the Company which obtained such Common Stock directly from the Company; (6) distributions to any Huntsman Parent Company in accordance with the Tax Sharing Agreement; (7) payments to any Huntsman Parent Company for legal, audit and other expenses directly relating to the administration of such Huntsman Parent Company not to exceed $10.0 million in any fiscal year; (8) the payment of consideration by a third party to equity holders of the Company; (9) additional Restricted Payments in an aggregate amount not to exceed $225 million since the Designated Date; (10) the payment of dividends or distributions to any Huntsman Parent Company which are contemporaneously applied to pay dividends on common stock of the Huntsman Public Parent at a rate not to exceed $0.40 per share per annum (such amount to be appropriately adjusted to reflect any stock split, reverse stock split, stock dividend, stock issuance or similar transactions made after the Designated Date so that the aggregate amount of dividends payable after such transaction is the same as the amount payable immediately prior to such transaction); (11) payments of dividends on Disqualified Capital Stock issued in accordance with Section 4.12; and (12) if the Consolidated Leverage Ratio of the Company, calculated after giving pro forma effect to any repurchase under this clause (12), is less than 2.5 to 1.0, then the Company may repurchase or dividend to a Huntsman Parent Company to repurchase, up to an aggregate of $250 million of Common Stock of a Huntsman Parent Companyresult thereof. In determining the aggregate amount of Restricted Payments made subsequent to the Designated Date in accordance with clause (iii) of the immediately preceding paragraphIssue Date, cash amounts expended pursuant to clauses (11)(ii), (2), (3)(ii)(A2)(i) and (42)(ii)(A) shall of this paragraph shall, in each case, be included in such calculation and calculation. For purposes of the foregoing provisions, the amount of any Restricted Payments made Payment (other than cash) shall be the Fair Market Value (evidenced by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the Trustee) on the date of the Restricted Payment of the asset(s) proposed to be transferred by the Company or such Subsidiary, as the case may be, pursuant to the other clauses of this paragraph shall not be so includedRestricted Payment. Not later than the date of making any Restricted Payment pursuant to clause (iii) of the second preceding paragraph or clause (9) of the immediately preceding paragraphPayment, the Company shall deliver to the Trustee an officers’ certificate Officers' Certificate stating that such Restricted Payment complies with this Indenture and setting forth in reasonable detail the basis upon which the required calculations were computed, which calculations may be based upon the Company’s 's latest available internal quarterly financial statements last provided statements. For purposes of this Section 4.03, if a particular Restricted Payment involves a non-cash payment, including a distribution of assets, then such Restricted Payment shall be deemed to be an amount equal to the Trustee pursuant cash portion of such Restricted Payment, if any, plus an amount equal to Section 4.09the Fair Market Value of the non-cash portion of such Restricted Payment.
Appears in 1 contract
Samples: Call Points Inc
Limitation on Restricted Payments. (a) The Company shall will not, and shall will not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, make any Restricted Payment if (including by operation of or as a result of an LLC Division), unless at the time of such Restricted Payment or and immediately after giving effect theretoto the proposed Restricted Payment (with the value of any such Restricted Payment, if other than cash, to be determined by the Board of Di-rectors in good faith, whose determination shall be conclusive and evidenced by a board resolution), (i) a Default or an Event of Default shall have occurred and be continuing, (ii) the Company is not able to incur at least $1.00 of additional Indebtedness other than Permitted Indebtedness in compliance with Section 4.12, or (iii) the aggregate amount of Restricted Payments including such proposed Restricted Payment made after June 30, 2006, including, the Fair Market Value as determined reasonably and in good faith by the Board of Managers of the Company of non-cash amounts constituting Restricted Payments 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 the Company earned from June 30, 2006 through the last day of the last full fiscal quarter immediately preceding 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 the Company from any Person (other than a Subsidiary of the Company) from the issuance and sale subsequent to June 30, 2006 of Qualified Capital Stock of the Company (other than Specified Venture Capital Stock) or debt securities of the Company that are, upon issuance, convertible into or exchangeable for Qualified Capital Stock of the Company, but only when and to the extent such debt securities are converted into or exchanged for Qualified Capital Stock of the Company; 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 the Company from a holder of the Company’s Capital Stock subsequent to June 30, 2006; plus (z) $400 million. Notwithstanding the foregoing, the provisions set forth in the immediately preceding paragraph shall 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) the acquisition of any shares of Capital Stock of the Company, either (i) solely in exchange for shares of Qualified Capital Stock of the Company or (ii) if no Default or Event of Default shall have occurred and be continuingcontinuing or would occur as a consequence thereof, through (ii) the application Company could incur at least $1.00 of net cash proceeds Permitted Leverage Ratio Debt and (iii) the aggregate amount of a substantially concurrent Equity Offering all Restricted Payments made after the April 28, 2017 shall not exceed the sum of (with-out duplication) (a) $150.0 million, plus (b) an amount equal to the Company’s Cumulative Consolidated EBITDA less 1.4 times the Company’s Cumulative Consolidated Interest Expense, plus (c) the aggregate amount of all Net Cash Proceeds received after April 28, 2017 by the Company from (x) the issuance and sale (other than to a Subsidiary of the Company); ) of Capital Stock of the Company (3other than Disqualified Stock or Designated Preferred Stock) to the acquisition extent that such proceeds are not used to redeem, repuchase, retire or repayment of otherwise acquire Capital Stock or any Indebtedness of the Company or any Subsidiary of the Company pursuant to Section 4.05(b)(ii) or (y) Indebtedness of the Company issued since April 28, 2017 (other than to Subsidiaries) that is subordinate or junior in right of payment to the Notes either (i) solely in exchange for shares of Qualified have been converted into Capital Stock of the CompanyCompany (other than Disqualified Stock or Designated Preferred Stock), plus (d) to the extent that any Unrestricted Subsidiary is redesignated as a Restricted Subsidiary after April 28, 2017, 100% of the fair market value of such Sub- sidiary as of the date of such redesignation, other than to the extent of the amount that constituted a Permitted Investment made under clause (x) of the definition of “Permitted Investments” and such redesignation will increase the amount available under such clause, plus (e) the aggregate amount returned in cash or Cash Equivalents with respect of Investments (iiother than Permitted Investments) if no Default made after April 28, 2017 whether through interest payments, principal payments, dividends or Event of Default shall have occurred and be continuingother distributions, through the application of net cash proceeds of plus (Af) a substantially concurrent Equity Offering or (B) incurrence for cash of Refinancing Indebtedness, (in the case of the disposition or repayment of any Investment for cash, which Investment constituted a Restricted Payment made after April 28, 2017, an amount equal to the return of capital with respect to such Investment, reduced (Abut not below zero) or (B)by the excess, other than to a Subsidiary if any, of the Company); (4) so long as no Default or Event cost of Default shall have occurred and be continuingthe disposition of such Investment over the gain, repurchases if any, realized by the Company of, or dividends to a Huntsman Parent Company to permit repurchases by a Huntsman Parent Company of, Common Stock of the Company or a Huntsman Parent Company from employees of the Company or any of its Subsidiaries or their authorized representatives upon the death, disability or termination of employment such Restricted Subsidiary in respect of such employees, in an aggregate amount not to exceed $25 million in any calendar year; (5) the redemption or repurchase of any Common Stock of the Company held by a Restricted Subsidiary of the Company which obtained such Common Stock directly from the Company; (6) distributions to any Huntsman Parent Company in accordance with the Tax Sharing Agreement; (7) payments to any Huntsman Parent Company for legal, audit and other expenses directly relating to the administration of such Huntsman Parent Company not to exceed $10.0 million in any fiscal year; (8) the payment of consideration by a third party to equity holders of the Company; (9) additional Restricted Payments in an aggregate amount not to exceed $225 million since the Designated Date; (10) the payment of dividends or distributions to any Huntsman Parent Company which are contemporaneously applied to pay dividends on common stock of the Huntsman Public Parent at a rate not to exceed $0.40 per share per annum (such amount to be appropriately adjusted to reflect any stock split, reverse stock split, stock dividend, stock issuance or similar transactions made after the Designated Date so that the aggregate amount of dividends payable after such transaction is the same as the amount payable immediately prior to such transaction); (11) payments of dividends on Disqualified Capital Stock issued in accordance with Section 4.12; and (12) if the Consolidated Leverage Ratio of the Company, calculated after giving pro forma effect to any repurchase under this clause (12), is less than 2.5 to 1.0, then the Company may repurchase or dividend to a Huntsman Parent Company to repurchase, up to an aggregate of $250 million of Common Stock of a Huntsman Parent Company. In determining the aggregate amount of Restricted Payments made subsequent to the Designated Date in accordance with clause (iii) of the immediately preceding paragraph, cash amounts expended pursuant to clauses (1), (2), (3)(ii)(A) and (4) shall be included in such calculation and Restricted Payments made pursuant to the other clauses of this paragraph shall not be so included. Not later than the date of making any Restricted Payment pursuant to clause (iii) of the second preceding paragraph or clause (9) of the immediately preceding paragraph, the Company shall deliver to the Trustee an officers’ certificate stating that such Restricted Payment complies with this Indenture and setting forth in reasonable detail the basis upon which the required calculations were computed, which calculations may be based upon the Company’s quarterly financial statements last provided to the Trustee pursuant to Section 4.09disposition.
Appears in 1 contract
Samples: E.W. SCRIPPS Co
Limitation on Restricted Payments. The Company and the Guarantors shall not, and shall not cause or permit any of its Restricted their respective Subsidiaries to, directly or indirectly, make any Restricted Payment if at the time of if, after giving effect to such Restricted Payment or immediately after giving effect theretoon a pro forma basis, (i1) a Default or an Event of Default shall have occurred and be continuing, (ii2) the Company is not able permitted to incur at least $1.00 of additional Indebtedness other than Permitted Indebtedness pursuant to the Debt Incurrence Ratio in compliance with Section 4.12, 4.11 or (iii3) the aggregate amount of all Restricted Payments made by the Company and its Subsidiaries, including after giving effect to such proposed Restricted Payment made Payment, from and after June 30the Issue Date, 2006would exceed, includingwithout duplication, the Fair Market Value as determined reasonably and in good faith by the Board sum of Managers of the Company of non-cash amounts constituting Restricted Payments shall exceed the sum of: (wa) 50% of the cumulative aggregate Consolidated Net Income of the Company for the period (or if cumulative taken as one accounting period), commencing on the first day of the first full fiscal quarter commencing after the Issue Date, to and including the last day of the fiscal quarter ended immediately prior to the date of each such calculation (or, in the event Consolidated Net Income shall be for such period is a lossdeficit, then minus 100% of such lossdeficit), plus (b) the aggregate Net Cash Proceeds received by the Company from the sale of its Qualified Capital Stock (other than (i) to a Subsidiary of the Company earned from June 30and (ii) to the extent applied in connection with a Qualified Exchange), 2006 through after the last day Issue Date plus (c) to the extent not included in Consolidated Net Income, 100% of any dividends or other distributions received by the Company or a Subsidiary of the last full fiscal quarter immediately preceding Company after the date Issue Date from an Unrestricted Subsidiary of the Restricted Payment occurs (the “Reference Date”) (treating such period as a single accounting period); Company, plus (xd) to the extent that any Investment (other than a Permitted Investment and any other Investment which when made was not deducted in this clause (3)) 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 (A) the cash or Cash Equivalents return of capital with respect to such Investment (less the cost of disposition, if any) and (B) the initial amount of such Investment plus (e) 100% of the aggregate net cash Cash Equivalent proceeds received by the Company from any Person (other than a Subsidiary of the Companyfrom its Subsidiaries) from the issuance and sale subsequent to June 30, 2006 of Qualified Capital Stock of the Company (other than Specified Venture Capital Stock) or debt securities of the Company that are, upon issuance, convertible into or exchangeable for Qualified Capital Stock of the Company, but only when and to the extent such debt securities are converted into or exchanged for Qualified Capital Stock of the Company; 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 the Company from a holder of the Company’s Capital Stock subsequent to June 30, 2006; plus (z) $400 million. Notwithstanding the foregoing, the provisions set forth in the immediately preceding paragraph shall not prohibit: (1) the payment of any dividend within 60 days Contributions after the date of declaration of such dividend if the dividend would have been permitted on the date of declaration; (2) the acquisition of any shares of Capital Stock of the Company, either (i) solely in exchange for shares of Qualified Capital Stock of the Company or (ii) if no Default or Event of Default shall have occurred and be continuing, through the application of net cash proceeds of a substantially concurrent Equity Offering (other than to a Subsidiary of the Company); (3) the acquisition or repayment of any Indebtedness of the Company that is subordinate or junior in right of payment to the Notes either (i) solely in exchange for shares of Qualified Capital Stock of the Company, or (ii) if no Default or Event of Default shall have occurred and be continuing, through the application of net cash proceeds of (A) a substantially concurrent Equity Offering or (B) incurrence for cash of Refinancing Indebtedness, (in the case of (A) or (B), other than to a Subsidiary of the Company); (4) so long as no Default or Event of Default shall have occurred and be continuing, repurchases by the Company of, or dividends to a Huntsman Parent Company to permit repurchases by a Huntsman Parent Company of, Common Stock of the Company or a Huntsman Parent Company from employees of the Company or any of its Subsidiaries or their authorized representatives upon the death, disability or termination of employment of such employees, in an aggregate amount not to exceed $25 million in any calendar year; (5) the redemption or repurchase of any Common Stock of the Company held by a Restricted Subsidiary of the Company which obtained such Common Stock directly from the Company; (6) distributions to any Huntsman Parent Company in accordance with the Tax Sharing Agreement; (7) payments to any Huntsman Parent Company for legal, audit and other expenses directly relating to the administration of such Huntsman Parent Company not to exceed $10.0 million in any fiscal year; (8) the payment of consideration by a third party to equity holders of the Company; (9) additional Restricted Payments in an aggregate amount not to exceed $225 million since the Designated Issue Date; (10) the payment of dividends or distributions to any Huntsman Parent Company which are contemporaneously applied to pay dividends on common stock of the Huntsman Public Parent at a rate not to exceed $0.40 per share per annum (such amount to be appropriately adjusted to reflect any stock split, reverse stock split, stock dividend, stock issuance or similar transactions made after the Designated Date so that the aggregate amount of dividends payable after such transaction is the same as the amount payable immediately prior to such transaction); (11) payments of dividends on Disqualified Capital Stock issued in accordance with Section 4.12; and (12) if the Consolidated Leverage Ratio of the Company, calculated after giving pro forma effect to any repurchase under this clause (12), is less than 2.5 to 1.0, then the Company may repurchase or dividend to a Huntsman Parent Company to repurchase, up to an aggregate of $250 million of Common Stock of a Huntsman Parent Company. In determining the aggregate amount of Restricted Payments made subsequent to the Designated Date in accordance with clause (iii) of the immediately preceding paragraph, cash amounts expended pursuant to clauses (1), (2), (3)(ii)(A) and (4) shall be included in such calculation and Restricted Payments made pursuant to the other clauses of this paragraph shall not be so included. Not later than the date of making any Restricted Payment pursuant to clause (iii) of the second preceding paragraph or clause (9) of the immediately preceding paragraph, the Company shall deliver to the Trustee an officers’ certificate stating that such Restricted Payment complies with this Indenture and setting forth in reasonable detail the basis upon which the required calculations were computed, which calculations may be based upon the Company’s quarterly financial statements last provided to the Trustee pursuant to Section 4.09.
Appears in 1 contract
Samples: City Truck Holdings Inc
Limitation on Restricted Payments. (a) The Company shall will not, and shall will not cause or permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, make any Restricted Payment if Payment, unless at the time of such Restricted Payment or immediately and after giving pro forma effect theretoto the proposed Restricted Payment, (ia) a Default or an Event of no Default shall have occurred and be continuingcontinuing (or would result therefrom), (iib) the Company is not able to could incur at least $1.00 of additional Indebtedness other than Permitted Indebtedness in compliance with under Section 4.12, or 4.4 and (iiic) the aggregate amount of all Restricted Payments including such proposed Restricted Payment declared or made on or after June 30, 2006, including, the Fair Market Value as determined reasonably and in good faith Issue Date by the Board of Managers of the Company of non-cash amounts constituting Restricted Payments or any Subsidiary shall not exceed the sum of: of (wi) 50% of the cumulative Consolidated Net Income (or if cumulative such Consolidated Net Income shall be a lossdeficit, minus 100% of such lossdeficit) of the Company earned from June 30, 2006 through aggregate Consolidated Net Income accrued during the period beginning on the first day of the fiscal quarter in which the Issue Date falls and ending on the last day of the last full fiscal quarter ending immediately preceding prior to the date the of such proposed Restricted Payment occurs (the “Reference Date”) (treating such period as a single accounting period); Payment, plus (xii) 100% of an amount equal to the aggregate net cash proceeds Qualified Proceeds received by the Company Company, subsequent to the Issue Date, from any Person (other than a Subsidiary of contributions to the Company) from 's capital or the issuance and or sale subsequent to June 30, 2006 of Qualified Capital Stock of the Company (other than Specified Venture Capital Stock) or debt securities of the Company that are, upon issuance, convertible into or exchangeable for Qualified Capital Stock of the Company, but only when and to the extent such debt securities are converted into or exchanged for Qualified Capital Stock of the Company; 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 the Company from a holder of the Company’s Capital Stock subsequent to June 30, 2006; plus (z) $400 million. Notwithstanding the foregoing, the provisions set forth in the immediately preceding paragraph shall 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) the acquisition of any shares of Capital Stock of the Company, either (i) solely in exchange for shares of Qualified Capital Stock of the Company or (ii) if no Default or Event of Default shall have occurred and be continuing, through the application of net cash proceeds of a substantially concurrent Equity Offering (other than to a Subsidiary Subsidiary) of shares of its Capital Stock (excluding Redeemable Stock, but including Capital Stock issued upon the exercise of options, warrants or rights to purchase Capital Stock (other than Redeemable Stock) of the Company); ) and the liability (3expressed as a positive number) as expressed on the acquisition or repayment face of a balance sheet in accordance with GAAP in respect of any Indebtedness of the Company that is subordinate or junior in right of payment to the Notes either (i) solely in exchange for shares of Qualified Capital Stock of the Company, or (ii) if no Default or Event of Default shall have occurred and be continuing, through the application of net cash proceeds of (A) a substantially concurrent Equity Offering or (B) incurrence for cash of Refinancing Indebtedness, (in the case of (A) or (B), other than to a Subsidiary of the Company); (4) so long as no Default or Event of Default shall have occurred and be continuing, repurchases by the Company of, or dividends to a Huntsman Parent Company to permit repurchases by a Huntsman Parent Company of, Common Stock of the Company or a Huntsman Parent Company from employees of the Company or any of its Subsidiaries Subsidiaries, or their authorized representatives upon the deathcarrying value of Redeemable Stock, disability which has been converted into, exchanged for or termination satisfied by the issuance of employment shares of such employees, in an aggregate amount not to exceed $25 million in any calendar year; (5) the redemption or repurchase of any Common Stock of the Company held by a Restricted Subsidiary of the Company which obtained such Common Stock directly from the Company; (6) distributions to any Huntsman Parent Company in accordance with the Tax Sharing Agreement; (7) payments to any Huntsman Parent Company for legal, audit and other expenses directly relating to the administration of such Huntsman Parent Company not to exceed $10.0 million in any fiscal year; (8) the payment of consideration by a third party to equity holders of the Company; (9) additional Restricted Payments in an aggregate amount not to exceed $225 million since the Designated Date; (10) the payment of dividends or distributions to any Huntsman Parent Company which are contemporaneously applied to pay dividends on common stock of the Huntsman Public Parent at a rate not to exceed $0.40 per share per annum (such amount to be appropriately adjusted to reflect any stock split, reverse stock split, stock dividend, stock issuance or similar transactions made after the Designated Date so that the aggregate amount of dividends payable after such transaction is the same as the amount payable immediately prior to such transaction); (11) payments of dividends on Disqualified Capital Stock issued in accordance with Section 4.12; and (12other than Redeemable Stock) if the Consolidated Leverage Ratio of the Company, calculated after giving pro forma effect subsequent to the Issue Date, plus (iii) 100% of the net reduction in Restricted Investments, subsequent to the Issue Date, in any repurchase under this clause Person, resulting from payments of interest on Indebtedness, dividends, repayments of loans or advances, or other transfers of Property (12but only to the extent such interest, dividends, repayments or other transfers of Property are not included in the calculation of Consolidated Net Income), is less than 2.5 in each case to 1.0, then the Company may repurchase or dividend any Subsidiary from any Person (including, without limitation, from Unrestricted Subsidiaries) or from redesignations of Unrestricted Subsidiaries as Subsidiaries (valued in each case as provided in the definition of "Investments"), not to a Huntsman Parent Company to repurchase, up to an aggregate exceed in the case of $250 million of Common Stock of a Huntsman Parent Company. In determining any Person the aggregate amount of Restricted Payments Investments previously made subsequent to by the Designated Date in accordance with clause (iii) of the immediately preceding paragraph, cash amounts expended pursuant to clauses (1), (2), (3)(ii)(A) and (4) shall be included Company or any Subsidiary in such calculation Person and in each such case which was treated as a Restricted Payments made pursuant to the other clauses of this paragraph shall not be so included. Not later than the date of making any Restricted Payment pursuant to clause (iii) of the second preceding paragraph or clause (9) of the immediately preceding paragraph, the Company shall deliver to the Trustee an officers’ certificate stating that such Restricted Payment complies with this Indenture and setting forth in reasonable detail the basis upon which the required calculations were computed, which calculations may be based upon the Company’s quarterly financial statements last provided to the Trustee pursuant to Section 4.09Payment.
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Samples: Brand Scaffold Services Inc
