Limitations on Restricted Payments. (a) The Issuer shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, make any Restricted Payment if at the time of such Restricted Payment: (1) a Default shall have occurred and be continuing or shall occur as a consequence thereof; (2) the Issuer cannot incur $1.00 of additional Indebtedness pursuant to the Coverage Ratio Exception; or (3) the amount of such Restricted Payment, when added to the aggregate amount of all other Restricted Payments made after the Issue Date (other than Restricted Payments made pursuant to clauses (2), (3), (4), (5), (6), (7) or (8) of Section 4.11(b)), exceeds the sum (the “Restricted Payments Basket”) of (without duplication): (A) 50% of Consolidated Net Income for the period (taken as one accounting period) commencing on the first day of the fiscal quarter in 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 such Consolidated Net Income shall be a deficit, minus 100% of such aggregate deficit), plus (B) 100% of the aggregate net cash proceeds received by the Issuer either (x) as contributions to the common equity of the Issuer after the Issue Date or (y) from the issuance and sale of Qualified Equity Interests after the Issue Date, other than (A) any such proceeds which are used to redeem Notes in accordance with paragraph 6(c) of the Notes or (B) any such proceeds or assets received from a Subsidiary of the Issuer, plus (C) the aggregate amount by which Indebtedness incurred by the Issuer or any Restricted Subsidiary subsequent to the Issue Date is reduced on the Issuer’s balance sheet upon the conversion or exchange (other than by a Subsidiary of the Issuer) into Qualified Equity Interests (less the amount of any cash, or the fair value of assets, distributed by the Issuer or any Restricted Subsidiary upon such conversion or exchange), plus (D) in the case of the disposition or repayment of or return on any Investment that was treated as a Restricted Payment made after the Issue Date, an amount (to the extent not included in the computation of Consolidated Net Income) equal to the lesser of (i) 100% of the aggregate amount received by the Issuer or any Restricted Subsidiary in cash or other property (valued at the Fair Market Value thereof) as the return of capital with respect to such Investment and (ii) the amount of such Investment that was treated as a Restricted Payment, in either case, less the cost of the disposition of such Investment and net of taxes, plus (E) upon a Redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary, the lesser of (i) the Fair Market Value of the Issuer’s proportionate interest in such Subsidiary immediately following such Redesignation, and (ii) the aggregate amount of the Issuer’s Investments in such Subsidiary to the extent such Investments reduced the Restricted Payments Basket and were not previously repaid or otherwise reduced. (b) The foregoing provisions shall not prohibit: (1) the payment by the Issuer or any Restricted Subsidiary of any dividend within 60 days after the date of declaration thereof, if on the date of declaration the payment would have complied with the provisions of this Indenture ; (2) the redemption of any Equity Interests of the Issuer or any Restricted Subsidiary in exchange for, or out of the proceeds of the substantially concurrent issuance and sale of, Qualified Equity Interests; (3) other than pursuant to clause (8) below, the redemption of Equity Interests of the Issuer held by officers, directors or employees or former officers, directors or employees (or their transferees, estates or beneficiaries under their estates), upon their death, disability, retirement, severance or termination of employment or service; provided that the aggregate cash consideration paid for all such redemptions shall not exceed (A) $5.0 million during any calendar year (with unused amounts being available to be used in the following calendar year, but not in any succeeding calendar year) plus (B) the amount of any net cash proceeds received by or contributed to the Issuer from the issuance and sale after the Issue Date of Qualified Equity Interests of the Issuer to its officers, directors or employees that have not been applied to the payment of Restricted Payments pursuant to this clause (3), plus (C) the net cash proceeds of any “key-man” life insurance policies that have not been applied to the payment of Restricted Payments pursuant to this clause (3); (4) repurchases of Equity Interests that occur or are deemed to occur upon the exercise of stock options if the Equity Interests represents a portion of the exercise price thereof; (5) Restricted Payments pursuant to the Transactions; (6) Restricted Payments if after giving effect thereto the Issuer’s Net Leverage Ratio is not greater than 3.0 to 1.0; (7) other Restricted Payments in an amount not to exceed $50.0 million less the amount of any Restricted Payments (as defined in the Senior Notes Indenture) deemed made on or after the Reference Date and on or prior to the Issue Date pursuant to Section 4.11(b)(7) of the Senior Notes Indenture; provided that Restricted Payments made pursuant to this clause (7) shall not exceed $25.0 million in the aggregate in any twelve-month period; or (8) the purchase or retirement of Class B Common Stock of the Issuer from any Permitted Holder in an aggregate amount not to exceed $10.0 million in any twelve-month period; provided that no proceeds from the issuance and sale of Qualified Equity Interests used to make a payment pursuant to clause (2) or (3)(B) above shall increase the Restricted Payments Basket.
Appears in 2 contracts
Sources: Indenture (American Greetings Corp), Indenture (American Greetings Corp)
Limitations on Restricted Payments. (a) The Issuer shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, make any Restricted Payment if at the time of such Restricted Payment:
(1i) a Default shall have occurred and be continuing or shall occur as a consequence thereof;
(2ii) the Issuer cannot incur $1.00 of additional Indebtedness pursuant to the Coverage Ratio Exception; or
(3iii) the amount of such Restricted Payment, when added to the aggregate amount of all other Restricted Payments made after the Issue Date (other than Restricted Payments made pursuant to clauses (2ii), (3iii), (4iv), (5v), (6vi), (7vii), (viii), (ix), (x), (xi) or and (8) xii) of Section 4.11(b)) hereof), exceeds the sum (the “Restricted Payments Basket”) of (without duplication):
(A) 50% of Consolidated Net Income for the period (taken as one accounting period) commencing on the first day of the fiscal quarter in 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 such Consolidated Net Income shall be a deficit, minus 100% of such aggregate deficit), plus
(B) 100% of the aggregate net cash proceeds and the Fair Market Value of non-cash assets received by the Issuer either (x) as contributions to the common equity of the Issuer after the Issue Date or (y) from the issuance and sale of Qualified Equity Interests (other than Disqualified Equity Interests) or from the issue or sale of convertible or exchangeable Disqualified Equity Interests or debt securities to the extent converted into or exchanged for Equity Interests, in each case issued after the Issue Date, other than (A1) any such proceeds which are used to redeem Notes in accordance with paragraph 6(c5(c) of the Notes or (B2) any such proceeds or assets received from a Subsidiary of the Issuer, plus
(C) the aggregate amount by which Indebtedness incurred by the Issuer or any Restricted Subsidiary subsequent to the Issue Date is reduced on the Issuer’s balance sheet upon the conversion or exchange (other than by a Subsidiary of the Issuer) into Qualified Equity Interests (other than Disqualified Equity Interests) (less the amount of any cash, or the fair value of assets, distributed by the Issuer or any Restricted Subsidiary upon such conversion or exchange), plus
(D) in the case of the disposition or repayment of or return on any Investment that was treated as a Restricted Payment made after the Issue Date, an amount (to the extent not included in the computation of Consolidated Net Income) equal to the lesser of (i) 100% of the aggregate amount received by the Issuer or any Restricted Subsidiary in cash or other property (valued at the Fair Market Value thereof) as the return of capital with respect to such Investment and (ii) the amount of such Investment that was treated as a Restricted Payment, in either case, less the cost of the disposition of such Investment and net of taxesInvestment, plus
(E) upon a Redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary or the merger or consolidation of an Unrestricted Subsidiary with or into the Issuer or any Restricted Subsidiary, the lesser of (i) the Fair Market Value of the Issuer’s proportionate interest in such Subsidiary immediately following such Redesignation, consolidation or merger, and (ii) the aggregate amount of the Issuer’s Investments in such Subsidiary to the extent such Investments reduced the Restricted Payments Basket and were not previously repaid or otherwise reduced, plus
(F) 50% of any cash dividends received by the Issuer or a Restricted Subsidiary after the Issue Date from an Unrestricted Subsidiary, to the extent that such dividends were not otherwise included in Consolidated Net Income.
(b) The foregoing provisions shall not prohibit:
(1i) the payment by the Issuer or any Restricted Subsidiary of any dividend within 60 days after the date of declaration thereof, if on the date of declaration the payment would have complied with the provisions of this Indenture Supplemental Indenture;
(2ii) the redemption making of any Equity Interests of the Issuer or any Restricted Subsidiary Payment in exchange for, or out of the proceeds of the substantially concurrent issuance and sale of, Qualified Equity Interests;
(3iii) other than pursuant to clause (8) viii) below, the redemption of Equity Interests of the Issuer held by officers, directors or employees or former officers, directors or employees (or their transferees, estates or beneficiaries under their estates), upon their death, disability, retirement, severance or termination of employment or service; provided that the aggregate cash consideration paid for all such redemptions shall not exceed (A) $5.0 million during any calendar year (with unused amounts being available to be used in the following calendar year, but not in any succeeding calendar year) plus (B) the amount of any net cash proceeds received by or contributed to the Issuer from the issuance and sale after the Issue Date of Qualified Equity Interests of the Issuer to its officers, directors or employees that have not been applied to the payment of Restricted Payments pursuant to this clause (3iii), plus (C) the net cash proceeds of any “key-man” life insurance policies that have not been applied to the payment of Restricted Payments pursuant to this clause (3iii);
(4iv) repurchases of Equity Interests that occur or are deemed to occur (A) upon the exercise of stock options if options, warrants or similar rights to the extent such Equity Interests represents a portion of the exercise price thereof, (B) as a result of Equity Interest being utilized to satisfy tax withholding obligations upon exercise of stock options or vesting of other equity awards and (C) upon the cancellation or forfeiture of stock options, warrants or other equity awards;
(5v) Restricted Payments pursuant to the Transactions;
(6vi) Restricted Payments if after giving effect thereto the Issuer’s Net Leverage Ratio is not greater than 3.0 to 1.0;
(7vii) other Restricted Payments in an amount not to exceed $50.0 million less the amount of any Restricted Payments (as defined in the Senior Notes Indenture) deemed made on or after the Reference Date and on or prior to the Issue Date pursuant to Section 4.11(b)(7) of the Senior Notes Indenture; provided that Restricted Payments made pursuant to this clause (7) shall not exceed $25.0 million in the aggregate in any twelve-month period; or75.0 million;
(8) viii) the purchase or retirement of Class B Common Stock of the Issuer from any Permitted Holder in an aggregate amount not to exceed $10.0 20.0 million in any twelve-month period;
(ix) so long as no Event of Default has occurred and is continuing or would arise as a result thereof, the payment by the Issuer of any dividend to the holders of any class or series of its Equity Interests on a pro rata basis among the holders of such class or series of Equity Interests in an aggregate amount not to exceed $25.0 million in any twelve-month period;
(x) the declaration and payment of regularly scheduled or accrued dividends to holders of any class or series of Disqualified Equity Interests issued on or after the Issue Date in compliance with Section 4.10 hereof;
(xi) cash payments made in lieu of the issuance of fractional shares (whether in connection with the exercise of warrants, options or other securities convertible into or exchangeable into Equity Interests of the Issuer or otherwise); or
(xii) the repurchase or redemption of common stock or Preferred Stock purchase rights issued in connection with any shareholder rights plans; provided that no proceeds from the issuance and sale of Qualified Equity Interests used to make a payment pursuant to clause (2ii) or (3)(Biii)(B) above shall increase the Restricted Payments Basket. For purposes of determining compliance with this Section 4.11, in the event that a payment or other action meets the criteria of more than one of the exceptions described in clauses (i) through (xii) above, or is entitled to be made pursuant to Section 4.11(a) hereof (including any payment or other action that constitutes a “Permitted Investment”), the Issuer will be permitted to classify such payment or other action on the date of its occurrence in any manner that complies with this Section 4.11 (including any payment or other action that constitutes a “Permitted Investment”). Payments or other actions permitted by this Section 4.11 need not be permitted solely by reference to one provision permitting such payment or other action (including any payment or other action that constitutes a “Permitted Investment”), but may be permitted in part by one such provision and in part by one or more other provisions of this Section 4.11 permitting payment or other action (including any payment or other action that constitutes a “Permitted Investment”).
Appears in 2 contracts
Sources: First Supplemental Indenture (American Greetings Corp), First Supplemental Indenture (American Greetings Corp)
Limitations on Restricted Payments. (a) The Issuer Company shall not, and shall not cause or permit any of its Restricted Subsidiary Subsidiaries to, make any Restricted Payment, directly or indirectly, make any Restricted Payment after the date of this Indenture if at the time of such Restricted Payment:
(1) a Default shall have occurred and be continuing or shall occur as a consequence thereof;
(2i) the Issuer cannot incur $1.00 amount of additional Indebtedness pursuant to the Coverage Ratio Exception; or
such proposed Restricted Payment (3) the amount of such Restricted Payment, if other than in cash, shall be determined in good faith by a majority of the disinterested members of the Board of Directors of the Company), when added to the aggregate amount of all other Restricted Payments (excluding Restricted Payments permitted by Section 4.07(b)(ii), Section 4.07(b)(iii), Section 4.07(b)(iv), Section 4.07(b)(vii) and Section 4.07(b)(viii)) declared or made after the Issue Date (other than Restricted Payments made pursuant to clauses (2), (3), (4), (5), (6), (7) or (8) of Section 4.11(b)), exceeds the sum (the “Restricted Payments Basket”) of (without duplication):of:
(A) $200.0 million, plus
(B) 50% of the Company’s Consolidated Net Income for accrued during the period (taken as one accounting a single period) commencing on the first day of the fiscal quarter in which the Issue Date occurs to occurred and including ending on the last day of the fiscal quarter ended immediately prior preceding the fiscal quarter in which the Restricted Payment is to the date of such calculation for which consolidated financial statements are available occur (or, if such aggregate Consolidated Net Income shall be is a deficit, minus 100% of such aggregate deficit), plus
(BC) the net cash proceeds derived from the issuance and sale of Capital Stock of the Company and its Restricted Subsidiaries (or any capital contribution to the Company or a Restricted Subsidiary) that is not Disqualified Stock (other than a sale to, or a contribution by, a Subsidiary of the Company) after the Issue Date, plus
(D) 100% of the principal amount of, or, if issued at a discount, the accreted value of, any Indebtedness of the Company or a Restricted Subsidiary which is issued (other than to a Subsidiary of the Company) after the Issue Date that is converted into or exchanged for Capital Stock of the Company that is not Disqualified Stock, plus
(E) 100% of the aggregate net cash proceeds amounts received by the Issuer either Company or any Restricted Subsidiary from the sale, disposition or liquidation (including by way of dividends) of any Investment (other than to any Subsidiary of the Company and other than to the extent sold, disposed of or liquidated with recourse to the Company or any of its Subsidiaries or to any of their respective properties or assets) but only to the extent (x) as contributions to the common equity of the Issuer after the Issue Date or not included in clause (B) above and (y) from that the issuance and sale making of Qualified Equity Interests such Investment constituted a Permitted Investment or Restricted Investment, plus
(F) 100% of the principal amount of, or if issued at a discount, the accreted value of, any Indebtedness or other obligation that is the subject of a guarantee by the Company which is released (other than due to a payment on such guarantee) after the Issue Date, other than (A) any but only to the extent that such proceeds which are used to redeem Notes in accordance with paragraph 6(c) of the Notes or (B) any such proceeds or assets received from guarantee constituted a Subsidiary of the Issuerpermitted Restricted Payment, plus
(CG) the aggregate amount by which Indebtedness incurred by the Issuer or with respect to any Unrestricted Subsidiary that is redesignated as a Restricted Subsidiary subsequent to in accordance with the Issue Date is reduced on definition of “Unrestricted Subsidiary” (so long as the Issuer’s balance sheet upon the conversion or exchange (other than by a designation of such Subsidiary of the Issuer) into Qualified Equity Interests (less the amount of any cash, or the fair value of assets, distributed by the Issuer or any Restricted as an Unrestricted Subsidiary upon such conversion or exchange), plus
(D) in the case of the disposition or repayment of or return on any Investment that was treated as a Restricted Payment made after the Issue Date, an amount (and only to the extent not included in the computation of Consolidated Net Incomeclause (B) above), an amount equal to the lesser of (ix) 100% the proportionate interest of the aggregate amount received by the Issuer Company or any a Restricted Subsidiary in cash or other property an amount equal to the excess of (I) the total assets of such Subsidiary, valued on an aggregate basis at the lesser of Book Value and Fair Market Value thereof, over (II) the total liabilities of such Subsidiary, determined in accordance with GAAP, and (y) the amount of the Restricted Payment deemed to be made upon such Subsidiary’s designation as the return of capital with respect to such Investment and an Unrestricted Subsidiary; or
(ii) the amount Company would be unable to incur $1.00 of such Investment that was treated additional Indebtedness under the Consolidated Fixed Charge Coverage Ratio contained in Section 4.10 hereof; or
(iii) a Default or Event of Default has occurred and is continuing or occurs as a Restricted Payment, in either case, less the cost of the disposition of such Investment and net of taxes, plus
(E) upon a Redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary, the lesser of (i) the Fair Market Value of the Issuer’s proportionate interest in such Subsidiary immediately following such Redesignation, and (ii) the aggregate amount of the Issuer’s Investments in such Subsidiary to the extent such Investments reduced the Restricted Payments Basket and were not previously repaid or otherwise reducedconsequence thereof.
(b) The foregoing Notwithstanding the foregoing, the provisions of this Section 4.07 shall not prohibitprevent:
(1i) the payment by the Issuer or any Restricted Subsidiary of any dividend within 60 days after the date of declaration thereof, thereof if on the date of declaration the payment thereof would have complied with the provisions limitations of this Indenture on the date of declaration;
(2ii) the redemption purchase, repayment, redemption, repurchase, defeasance or other acquisition or retirement of any Equity Interests shares of the Issuer Company’s Capital Stock or any the Company’s or a Restricted Subsidiary in exchange Subsidiary’s Indebtedness for, or out of the net proceeds of the a substantially concurrent issuance and sale (other than a sale to a Subsidiary of the Company) of, Qualified Equity Interestsother shares of its Capital Stock (other than Disqualified Stock), provided that the proceeds of any such sale shall be excluded in any computation made under Section 4.07(a)(i)(C) above;
(3iii) the purchase, repayment, redemption, repurchase, defeasance or other than acquisition or retirement for value of Indebtedness, including premium, if any, with the proceeds of Refinancing Indebtedness;
(iv) payments or distributions pursuant to clause or in connection with a merger, consolidation or transfer of assets that complies with Section 4.13 hereof;
(8) belowv) any purchase, the redemption redemption, retirement or other acquisition for value of Equity Interests Capital Stock of the Issuer Company or any Subsidiary held by officers, directors officers or employees or former officers, directors officers or employees of the Company or any Subsidiary (or their transferees, estates or beneficiaries under their estates), upon their death, disability, retirement, severance or termination of employment or service; provided that the aggregate cash consideration paid for all such redemptions shall ) not to exceed (A) $500,000 in any calendar year and $5.0 million during any calendar year (with unused amounts being available to be used in the following calendar year, but not in any succeeding calendar year) plus (B) the amount of any net cash proceeds received by or contributed to the Issuer from the issuance and sale after aggregate since the Issue Date of Qualified Equity Interests of the Issuer to its officers, directors or employees that have not been applied to the payment of Restricted Payments pursuant to this clause (3), plus (C) the net cash proceeds of any “key-man” life insurance policies that have not been applied to the payment of Restricted Payments pursuant to this clause (3)Date;
(4vi) any purchase, redemption, retirement or other acquisition for value of Capital Stock of the Company not to exceed $10.0 million in any calendar year;
(vii) repurchases of Equity Interests that occur or are Capital Stock deemed to occur upon the exercise of stock options options, warrants or similar instruments if the Equity Interests such Capital Stock represents a portion of the exercise price thereofof such options, warrants or similar instruments;
(5viii) Restricted Payments pursuant to the Transactionspayment by the Company of cash in lieu of the issuance of fractional shares upon the exercise of options, warrants or similar instruments or upon the conversion or exchange of Capital Stock of the Company;
(6ix) Restricted Payments if the payment of dividends on Preferred Stock and Disqualified Stock up to an aggregate amount of $10.0 million in any fiscal year; provided that immediately after giving effect thereto to any declaration of such dividend, the Issuer’s Net Leverage Company could incur at least $1.00 of Indebtedness under the Consolidated Fixed Charge Coverage Ratio is not greater than 3.0 to 1.0contained under Section 4.10 hereof;
(7x) payments not to exceed $75.0 million in the aggregate for the purchase, repayment, redemption, repurchase, defeasance or other acquisition or retirement for value of the Company’s junior subordinated notes due July 30, 2036 (or the related trust preferred securities issued by Beazer Homes Capital Trust I), as such securities may be amended or modified from time to time; or
(xi) other Restricted Payments made after the Issue Date in an amount not to exceed the greater of (1) $50.0 million less the amount of any Restricted Payments (as defined in the Senior Notes Indenture) deemed made on or after the Reference Date and on or prior to the Issue Date pursuant to Section 4.11(b)(7) of the Senior Notes Indenture; provided that Restricted Payments made pursuant to this clause (7) shall not exceed $25.0 150.0 million in the aggregate in any twelve-month period; or
(8) the purchase or retirement of Class B Common Stock of the Issuer from any Permitted Holder in an aggregate amount not to exceed $10.0 million in any twelve-month period; provided that no proceeds from the issuance and sale of Qualified Equity Interests used to make a payment pursuant to clause (2) or (3)(B) 7.5% of the Consolidated Tangible Assets. For purposes of determining compliance with this Section 4.07, in the event a Restricted Payment meets the criteria to be made pursuant to more than one of the above clauses of this covenant, the Company, in its sole discretion, shall increase classify such Restricted Payment in any manner that complies with this covenant and may from time to time reclassify such Restricted Payment in any manner in which such Restricted Payment could be made at the Restricted Payments Baskettime of such reclassification.
Appears in 2 contracts
Sources: Indenture (Beazer Homes Usa Inc), Indenture (Beazer Homes Usa Inc)
Limitations on Restricted Payments. (a) The Issuer shall Company will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, make any Restricted Payment, directly or indirectly, make after the Issue Date of Securities of any Restricted Payment series if at the time of such Restricted Payment:
(1) a Default shall have occurred and be continuing or shall occur as a consequence thereof;
(2) the Issuer cannot incur $1.00 of additional Indebtedness pursuant to the Coverage Ratio Exception; or
(3i) the amount of such Restricted Payment (the amount of such Restricted Payment, if other than in cash, will be determined by the Board of Directors of the Company), when added to the aggregate amount of all other Restricted Payments made after the Issue Date (other than Restricted Payments made pursuant to clauses (2), (3), (4), (5), (6), (7) or (8) of Section 4.11(b))the Securities of any series, exceeds the sum of: (1) $100,000,000, plus (2) 50 percent of the “Restricted Payments Basket”) of (without duplication):
(A) 50% of Company's Consolidated Net Income for accrued during the period (taken as one accounting a single period) commencing on the first day of the fiscal quarter in 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 since January 1, 1997 (or, if such aggregate Consolidated Net Income shall be is a deficit, minus 100% 100 percent of such aggregate deficit), plus
plus (B3) 100% of the aggregate net cash proceeds received by the Issuer either (x) as contributions to the common equity of the Issuer after the Issue Date or (y) derived from the issuance and sale of Qualified Equity Interests after Capital Stock of the Issue Date, Company and its Restricted Subsidiaries that is not Disqualified Stock (other than (A) any such proceeds which are used a sale to redeem Notes in accordance with paragraph 6(c) of the Notes or (B) any such proceeds or assets received from a Subsidiary of the Issuer, plus
(CCompany) the aggregate amount by which Indebtedness incurred by the Issuer or any Restricted Subsidiary subsequent to after the Issue Date is reduced on of Securities of any series but only to the Issuer’s balance sheet upon the conversion or exchange extent not applied under clause (other than by a Subsidiary d) of the Issuerdefinition of "Restricted Payment" set forth in Section 1.02 hereof, plus (4) into Qualified Equity Interests (less 100 percent of the principal amount of any cashIndebtedness of the Company or a Restricted Subsidiary that is converted into or exchanged for Capital Stock of the Company that is not Disqualified Stock, or plus (5) 100 percent of the fair value of assets, distributed aggregate amounts received by the Issuer Company or any Restricted Subsidiary upon such conversion or exchange)the sale, plus
(D) in the case of the disposition or repayment liquidation (including by way of or return on dividends) of any Investment that was treated as a Restricted Payment made after the Issue Date, an amount (but only to the extent (x) not included in the computation of Consolidated Net IncomeSection 6.12(a)(i)(2) equal to the lesser of (i) 100% of the aggregate amount received by the Issuer or any Restricted Subsidiary in cash or other property (valued at the Fair Market Value thereof) as the return of capital with respect to such Investment above and (iiy) that the amount making of such Investment that was treated as constituted a Restricted PaymentInvestment made pursuant to this Section 6.12(a)(i), in either case, less the cost plus (6) 100 percent of the disposition principal amount of, or if issued at a discount the accreted value of, any Indebtedness or other obligation that is the subject of such Investment and net of taxes, plus
(E) upon a Redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary, the lesser of (i) the Fair Market Value of the Issuer’s proportionate interest in such Subsidiary immediately following such Redesignation, and (ii) the aggregate amount of the Issuer’s Investments in such Subsidiary to the extent such Investments reduced the Restricted Payments Basket and were not previously repaid or otherwise reduced.
(b) The foregoing provisions shall not prohibit:
(1) the payment guaranty by the Issuer or any Restricted Subsidiary of any dividend within 60 days after the date of declaration thereof, if on the date of declaration the payment would have complied with the provisions of this Indenture ;
(2) the redemption of any Equity Interests of the Issuer or any Restricted Subsidiary in exchange for, or out of the proceeds of the substantially concurrent issuance and sale of, Qualified Equity Interests;
(3) other than pursuant to clause (8) below, the redemption of Equity Interests of the Issuer held by officers, directors or employees or former officers, directors or employees (or their transferees, estates or beneficiaries under their estates), upon their death, disability, retirement, severance or termination of employment or service; provided that the aggregate cash consideration paid for all such redemptions shall not exceed (A) $5.0 million during any calendar year (with unused amounts being available to be used in the following calendar year, but not in any succeeding calendar year) plus (B) the amount of any net cash proceeds received by or contributed to the Issuer from the issuance and sale Company which is released after the Issue Date of Qualified Equity Interests Securities of the Issuer to its officersany series, directors or employees that have not been applied but only to the payment extent that the granting of such guaranty constituted a "Restricted Payments pursuant to this clause (3), plus (C) Payment" under the net cash proceeds of any “key-man” life insurance policies that have not been applied to the payment of Restricted Payments pursuant to this clause (3);
(4) repurchases of Equity Interests that occur or are deemed to occur upon the exercise of stock options if the Equity Interests represents a portion of the exercise price thereof;
(5) Restricted Payments pursuant to the Transactions;
(6) Restricted Payments if after giving effect thereto the Issuer’s Net Leverage Ratio is not greater than 3.0 to 1.0;
(7) other Restricted Payments definition set forth in an amount not to exceed $50.0 million less the amount of any Restricted Payments (as defined in the Senior Notes Indenture) deemed made on or after the Reference Date and on or prior to the Issue Date pursuant to Section 4.11(b)(7) of the Senior Notes Indenture; provided that Restricted Payments made pursuant to this clause (7) shall not exceed $25.0 million in the aggregate in any twelve-month period1.02 hereof; or
(8) the purchase or retirement of Class B Common Stock of the Issuer from any Permitted Holder in an aggregate amount not to exceed $10.0 million in any twelve-month period; provided that no proceeds from the issuance and sale of Qualified Equity Interests used to make a payment pursuant to clause (2) or (3)(B) above shall increase the Restricted Payments Basket.
Appears in 2 contracts
Sources: Senior Indenture (U S Home Corp /De/), Senior Subordinated Indenture (U S Home Corp /De/)
Limitations on Restricted Payments. (a) The Issuer shall will not, and shall will not permit any Restricted Subsidiary to, directly or indirectly, make any Restricted Payment if at the time of such Restricted Payment:
(1) a Default shall have occurred and be continuing or shall occur as a consequence thereof;
(2) the Issuer cannot incur $1.00 of additional Indebtedness pursuant to the Coverage Ratio Exception; or
(3) the amount of such Restricted Payment, when added to the aggregate amount of all other Restricted Payments made after the Issue Date May 12, 2009 (other than Restricted Payments made pursuant to clauses (2) through (7), (38) (with respect to non-cash dividends only), (410), (5), 11) and (6), (712) or (8) of Section 4.11(b)4.08(b), exceeds the sum (the “Restricted Payments Basket”) of (without duplication):
(Ai) 50% of Consolidated Net Income for the period (taken as one accounting period) commencing on the first (1st) day of the first full fiscal quarter in which the Issue Date occurs commencing after May 12, 2009 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 such Consolidated Net Income shall be a deficit, minus 100% of such aggregate deficit), plus
(Bii) 100% of the aggregate net proceeds, including cash proceeds and the Fair Market Value of the equity of a Person or of assets used in or constituting a line of business, in each case which becomes or becomes owned by a Restricted Subsidiary, received by the Issuer either (x) as contributions to the common equity of the Issuer after the Issue Date or (y) from the issuance and sale of Qualified Equity Interests after the Issue DateMay 12, 2009, other than (A) any such proceeds which are used to redeem Notes in accordance with paragraph 6(c) Section 6 of the Notes or (B) any such proceeds or assets received from a Subsidiary of the IssuerNotes, plus
(C) the aggregate amount by which Indebtedness incurred by the Issuer or any Restricted Subsidiary subsequent to the Issue Date is reduced on the Issuer’s balance sheet upon the conversion or exchange (other than by a Subsidiary of the Issuer) into Qualified Equity Interests (less the amount of any cash, or the fair value of assets, distributed by the Issuer or any Restricted Subsidiary upon such conversion or exchange), plus
(D) in the case of the disposition or repayment of or return on any Investment that was treated as a Restricted Payment made after the Issue Date, an amount (to the extent not included in the computation of Consolidated Net Income) equal to the lesser of (i) 100% of the aggregate amount received by the Issuer or any Restricted Subsidiary in cash or other property (valued at the Fair Market Value thereof) as the return of capital with respect to such Investment and (ii) the amount of such Investment that was treated as a Restricted Payment, in either case, less the cost of the disposition of such Investment and net of taxes, plus
(E) upon a Redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary, the lesser of (i) the Fair Market Value of the Issuer’s proportionate interest in such Subsidiary immediately following such Redesignation, and (ii) the aggregate amount of the Issuer’s Investments in such Subsidiary to the extent such Investments reduced the Restricted Payments Basket and were not previously repaid or otherwise reduced.
(b) The foregoing provisions shall not prohibit:
(1) the payment by the Issuer or any Restricted Subsidiary of any dividend within 60 days after the date of declaration thereof, if on the date of declaration the payment would have complied with the provisions of this Indenture ;
(2) the redemption of any Equity Interests of the Issuer or any Restricted Subsidiary in exchange for, or out of the proceeds of the substantially concurrent issuance and sale of, Qualified Equity Interests;
(3) other than pursuant to clause (8) below, the redemption of Equity Interests of the Issuer held by officers, directors or employees or former officers, directors or employees (or their transferees, estates or beneficiaries under their estates), upon their death, disability, retirement, severance or termination of employment or service; provided that the aggregate cash consideration paid for all such redemptions shall not exceed (A) $5.0 million during any calendar year (with unused amounts being available to be used in the following calendar year, but not in any succeeding calendar year) plus (B) the amount of any net cash proceeds received by or contributed Issuer delivers to the Issuer from the issuance and sale after the Issue Date of Qualified Equity Interests of the Issuer to its officers, directors or employees that have not been applied to the payment of Restricted Payments pursuant to this clause (3), plus (C) the net cash proceeds of any “key-man” life insurance policies that have not been applied to the payment of Restricted Payments pursuant to this clause (3);
(4) repurchases of Equity Interests that occur or are deemed to occur upon the exercise of stock options if the Equity Interests represents a portion of the exercise price thereof;
(5) Restricted Payments pursuant to the Transactions;
(6) Restricted Payments if after giving effect thereto the Issuer’s Net Leverage Ratio is not greater than 3.0 to 1.0;
(7) other Restricted Payments in an amount not to exceed $50.0 million less the amount of any Restricted Payments (as defined in the Senior Notes Indenture) deemed made on or after the Reference Date and on or prior to the Issue Date pursuant to Section 4.11(b)(7) of the Senior Notes Indenture; provided that Restricted Payments made pursuant to this clause (7) shall not exceed $25.0 million in the aggregate in any twelve-month period; or
(8) the purchase or retirement of Class B Common Stock of the Issuer from any Permitted Holder in an aggregate amount not to exceed $10.0 million in any twelve-month period; provided that no proceeds from the issuance and sale of Qualified Equity Interests used to make a payment pursuant to clause (2) or (3)(B) above shall increase the Restricted Payments Basket.Trustee:
Appears in 2 contracts
Sources: Sixteenth Supplemental Indenture (Alere Inc.), Fifteenth Supplemental Indenture (Alere Inc.)
Limitations on Restricted Payments. (a) The Hovnanian and the Issuer shall will not, and shall will not cause or permit any Restricted Subsidiary to, directly or indirectly, make any Restricted Payment if at the time of such Restricted Paymentunless:
(1i) a no Default or Event of Default shall have occurred and be continuing at the time of or shall occur as a consequence thereofimmediately after giving effect to such Restricted Payment;
(2ii) the Issuer cannot incur $1.00 of additional Indebtedness pursuant immediately after giving effect to the Coverage Ratio Exception; or
(3) the amount of such Restricted Payment, when added Hovnanian could incur at least $1.00 of Indebtedness pursuant to Section 3.05(a) hereof; and
(iii) immediately after giving effect to such Restricted Payment, the aggregate amount of all other Restricted Payments (including the Fair Market Value of any non-cash Restricted Payment) declared or made after the Issue Date (other than Restricted Payments made pursuant to clauses (2)May 4, (3), (4), (5), (6), (7) or (8) of Section 4.11(b)), exceeds 1999 does not exceed the sum (the “Restricted Payments Basket”) of (without duplication):of:
(A) 50% of the Consolidated Net Income for of Hovnanian on a cumulative basis during the period (taken as one accounting period) commencing on the first day of the fiscal quarter in which the Issue Date occurs to from and including February 1, 1999 and ending on the last day of the Hovnanian’s fiscal quarter ended immediately prior to preceding the date of such calculation for which consolidated financial statements are available Restricted Payment (or, if or in the event such Consolidated Net Income shall be a deficit, minus 100% of such aggregate deficit), plus
(B) 100% of the aggregate net cash proceeds of and the Fair Market Value of Property received by the Issuer either Hovnanian from (x1) as contributions any capital contribution to the common equity of the Issuer Hovnanian after the Issue Date February 1, 1999 or (y) from the issuance and any issue or sale after February 1, 1999 of Qualified Equity Interests after the Issue Date, Stock (other than (A) to any such proceeds which are used to redeem Notes in accordance with paragraph 6(c) of the Notes or (B) any such proceeds or assets received from a Subsidiary of Hovnanian) and (2) the Issuerissue or sale after February 1, 1999 of any Indebtedness or other securities of Hovnanian convertible into or exercisable for Qualified Stock of Hovnanian that have been so converted or exercised, as the case may be, plus
(C) the aggregate amount by which Indebtedness incurred by the Issuer or any Restricted Subsidiary subsequent to the Issue Date is reduced on the Issuer’s balance sheet upon the conversion or exchange (other than by a Subsidiary of the Issuer) into Qualified Equity Interests (less the amount of any cash, or the fair value of assets, distributed by the Issuer or any Restricted Subsidiary upon such conversion or exchange), plus
(D) in the case of the disposition or repayment of or return on any Investment that was treated as constituting a Restricted Payment made after the Issue DateMay 4, 1999, an amount (to the extent not included in the computation calculation of Consolidated Net IncomeIncome referred to in (A)) equal to the lesser of (ix) 100% of the aggregate amount received by the Issuer or any Restricted Subsidiary in cash or other property (valued at the Fair Market Value thereof) as the return of capital with respect to such Investment (including by dividend, distribution or sale of Capital Stock) and (iiy) the amount of such Investment that was treated as a Restricted Payment, in either case, less the cost of the disposition or repayment of such Investment (to the extent not included in the calculation of Consolidated Net Income referred to in (A)), plus
(D) with respect to any Unrestricted Subsidiary that is redesignated as a Restricted Subsidiary after May 4, 1999, in accordance with the definition of Unrestricted Subsidiary (so long as the designation of such Subsidiary as an Unrestricted Subsidiary was treated as a Restricted Payment made after the Issue Date, and net only to the extent not included in the calculation of taxesConsolidated Net Income referred to in (A)), an amount equal to the lesser of (x) the proportionate interest of Hovnanian or a Restricted Subsidiary in an amount equal to the excess of (I) the total assets of such Subsidiary, valued on an aggregate basis at the lesser of book value and Fair Market Value thereof, over (II) the total liabilities of such Subsidiary, determined in accordance with GAAP, and (y) the Designation Amount at the time of such Subsidiary’s designation as an Unrestricted Subsidiary, plus
(E) upon a Redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary$17 million, the lesser of minus
(i) the Fair Market Value of the Issuer’s proportionate interest in such Subsidiary immediately following such Redesignation, and (iiF) the aggregate amount of the Issuer’s Investments in such Subsidiary to the extent such Investments reduced the all Restricted Payments Basket and were not previously repaid or otherwise reduced(other than Restricted Payments referred to in clause (iii) of paragraph (b) below) made after February 1, 1999 through May 4, 1999.
(b) The foregoing provisions shall Clauses (ii) and (iii) of paragraph (a) will not prohibit:
(1i) the payment by the Issuer or any Restricted Subsidiary of any dividend within 60 days after the date of its declaration thereof, if such dividend could have been made on the date of its declaration the payment would have complied with without violation of the provisions of this Indenture the Indenture;
(2ii) the repurchase, redemption or retirement of any Equity Interests shares of the Issuer or any Restricted Subsidiary Capital Stock of Hovnanian in exchange for, or out of the net proceeds of the substantially concurrent issuance and sale (other than to a Subsidiary of Hovnanian) of, other shares of Qualified Equity Interests;Stock; and
(3iii) the purchase, redemption or other than pursuant acquisition, cancellation or retirement for value of Capital Stock, or options, warrants, equity appreciation rights or other rights to clause (8) belowpurchase or acquire Capital Stock, the redemption of Equity Interests of the Issuer Hovnanian or any Subsidiary held by officers, directors officers or employees or former officers, directors officers or employees of Hovnanian or any Subsidiary (or their transferees, estates or beneficiaries under their estates), upon their death, disability, retirement, severance or termination of employment or service; provided that the aggregate cash consideration paid for all such redemptions shall not exceed (A) $5.0 million during any calendar year (with unused amounts being available to be used in the following calendar year, but not in any succeeding calendar year) plus (B) the amount of any net cash proceeds received by or contributed to the Issuer from the issuance and sale after the Issue Date of Qualified Equity Interests of the Issuer to its officers, directors or employees that have not been applied to the payment of Restricted Payments pursuant to this clause (3), plus (C) the net cash proceeds of any “key-man” life insurance policies that have not been applied to the payment of Restricted Payments pursuant to this clause (3);
(4) repurchases of Equity Interests that occur or are deemed to occur upon the exercise of stock options if the Equity Interests represents a portion of the exercise price thereof;
(5) Restricted Payments pursuant to the Transactions;
(6) Restricted Payments if after giving effect thereto the Issuer’s Net Leverage Ratio is not greater than 3.0 to 1.0;
(7) other Restricted Payments in an amount not to exceed $50.0 million less the amount of any Restricted Payments (as defined in the Senior Notes Indenture) deemed made on or after the Reference Date and on or prior to the Issue Date pursuant to Section 4.11(b)(7) of the Senior Notes Indenture; provided that Restricted Payments made pursuant to this clause (7) shall not exceed $25.0 10 million in the aggregate in any twelve-month period; or
(8) the purchase or retirement of Class B Common Stock of the Issuer from any Permitted Holder in an aggregate amount not to exceed $10.0 million in any twelve-month period; provided that no proceeds from the issuance and sale of Qualified Equity Interests used to make a payment pursuant to clause (2) or (3)(B) above shall increase the Restricted Payments Basket.since May 4, 1999;
Appears in 2 contracts
Sources: Senior Notes Indenture (Hovnanian Enterprises Inc), First Supplemental Indenture (Hovnanian Enterprises Inc)
Limitations on Restricted Payments. (a) The Issuer shall will not, and shall will not permit any Restricted Subsidiary to, directly or indirectly, make any Restricted Payment if at the time of such Restricted Payment:
(1) a Default shall have occurred and be continuing or shall occur as a consequence thereof;
(2) the Issuer cannot incur $1.00 of additional Indebtedness pursuant to the Coverage Ratio Exception; or
(3) the amount of such Restricted Payment, when added to the aggregate amount of all other Restricted Payments made after the Issue Date (other than Restricted Payments made pursuant to clauses (2) through (7), (38) (with respect to non-cash dividends only), (4), 10) and (5), (6), (711) or (8) of Section 4.11(b)4.08(b), exceeds the sum (the “Restricted Payments Basket”) of (without duplication):
(Ai) 50% of Consolidated Net Income for the period (taken as one accounting period) commencing on the first (1st) day of the first full fiscal quarter in which commencing after 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 such Consolidated Net Income shall be a deficit, minus 100% of such aggregate deficit), plus
(Bii) 100% of the aggregate net proceeds, including cash proceeds and the Fair Market Value of the equity of a Person or of assets used in or constituting a line of business, in each case which becomes or becomes owned by a Restricted Subsidiary, received by the Issuer either (x) as contributions to the common equity of the Issuer after the Issue Date or (y) from the issuance and sale of Qualified Equity Interests after the Issue Date, other than (A) any such proceeds which are used to redeem Notes in accordance with paragraph 6(c) Section 6 of the Notes or (B) any such proceeds or assets received from a Subsidiary of the IssuerNotes, plus
(C) the aggregate amount by which Indebtedness incurred by the Issuer or any Restricted Subsidiary subsequent to the Issue Date is reduced on the Issuer’s balance sheet upon the conversion or exchange (other than by a Subsidiary of the Issuer) into Qualified Equity Interests (less the amount of any cash, or the fair value of assets, distributed by the Issuer or any Restricted Subsidiary upon such conversion or exchange), plus
(D) in the case of the disposition or repayment of or return on any Investment that was treated as a Restricted Payment made after the Issue Date, an amount (to the extent not included in the computation of Consolidated Net Income) equal to the lesser of (i) 100% of the aggregate amount received by the Issuer or any Restricted Subsidiary in cash or other property (valued at the Fair Market Value thereof) as the return of capital with respect to such Investment and (ii) the amount of such Investment that was treated as a Restricted Payment, in either case, less the cost of the disposition of such Investment and net of taxes, plus
(E) upon a Redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary, the lesser of (i) the Fair Market Value of the Issuer’s proportionate interest in such Subsidiary immediately following such Redesignation, and (ii) the aggregate amount of the Issuer’s Investments in such Subsidiary to the extent such Investments reduced the Restricted Payments Basket and were not previously repaid or otherwise reduced.
(b) The foregoing provisions shall not prohibit:
(1) the payment by the Issuer or any Restricted Subsidiary of any dividend within 60 days after the date of declaration thereof, if on the date of declaration the payment would have complied with the provisions of this Indenture ;
(2) the redemption of any Equity Interests of the Issuer or any Restricted Subsidiary in exchange for, or out of the proceeds of the substantially concurrent issuance and sale of, Qualified Equity Interests;
(3) other than pursuant to clause (8) below, the redemption of Equity Interests of the Issuer held by officers, directors or employees or former officers, directors or employees (or their transferees, estates or beneficiaries under their estates), upon their death, disability, retirement, severance or termination of employment or service; provided that the aggregate cash consideration paid for all such redemptions shall not exceed (A) $5.0 million during any calendar year (with unused amounts being available to be used in the following calendar year, but not in any succeeding calendar year) plus (B) the amount of any net cash proceeds received by or contributed Issuer delivers to the Issuer from the issuance and sale after the Issue Date of Qualified Equity Interests of the Issuer to its officers, directors or employees that have not been applied to the payment of Restricted Payments pursuant to this clause (3), plus (C) the net cash proceeds of any “key-man” life insurance policies that have not been applied to the payment of Restricted Payments pursuant to this clause (3);
(4) repurchases of Equity Interests that occur or are deemed to occur upon the exercise of stock options if the Equity Interests represents a portion of the exercise price thereof;
(5) Restricted Payments pursuant to the Transactions;
(6) Restricted Payments if after giving effect thereto the Issuer’s Net Leverage Ratio is not greater than 3.0 to 1.0;
(7) other Restricted Payments in an amount not to exceed $50.0 million less the amount of any Restricted Payments (as defined in the Senior Notes Indenture) deemed made on or after the Reference Date and on or prior to the Issue Date pursuant to Section 4.11(b)(7) of the Senior Notes Indenture; provided that Restricted Payments made pursuant to this clause (7) shall not exceed $25.0 million in the aggregate in any twelve-month period; or
(8) the purchase or retirement of Class B Common Stock of the Issuer from any Permitted Holder in an aggregate amount not to exceed $10.0 million in any twelve-month period; provided that no proceeds from the issuance and sale of Qualified Equity Interests used to make a payment pursuant to clause (2) or (3)(B) above shall increase the Restricted Payments Basket.Trustee:
Appears in 2 contracts
Sources: First Supplemental Indenture (Inverness Medical Innovations Inc), First Supplemental Indenture (Inverness Medical Innovations Inc)
Limitations on Restricted Payments. (a) The Issuer shall Until the Notes are rated Investment Grade by both Rating Agencies (after which time the following covenant will no longer be in effect), the Company will not, and shall will not cause or permit any Restricted Subsidiary to, directly or indirectly, make any Restricted Payment if at the time of such Restricted Paymentunless:
(1i) a no Default or Event of Default shall have occurred and be continuing at the time of or shall occur as a consequence thereofimmediately after giving effect to such Restricted Payment;
(2ii) the Issuer cannot incur $1.00 of additional Indebtedness pursuant immediately after giving effect to the Coverage Ratio Exception; or
(3) the amount of such Restricted Payment, when added the Company could incur at least $1.00 of Indebtedness pursuant to Section 3.02(a) hereof; and
(iii) immediately after giving effect to such Restricted Payment, the aggregate amount of all other Restricted Payments (including the Fair Market Value of any non-cash Restricted Payment) declared or made after the Issue Date (other than Restricted Payments made pursuant to clauses (2), (3), (4), (5), (6), (7) or (8) of Section 4.11(b)), exceeds does not exceed the sum (the “Restricted Payments Basket”) of (without duplication):
(Aa) 50% of the Consolidated Net Income for of the Company on a cumulative basis during the period (taken as one accounting period) commencing on the first day of the fiscal quarter in which the Issue Date occurs to from and including April 1, 1998 and ending on the last day of the Company’s fiscal quarter ended immediately prior to preceding the date of such calculation for which consolidated financial statements are available Restricted Payment (or, if or in the event such Consolidated Net Income shall be a deficit, minus 100% of such aggregate deficit), plus
plus (Bb) 100% of the aggregate net cash proceeds pro- ceeds of and the fair market value of Property received by the Issuer either Company from (x1) as contributions any capital contribution to the common equity Company after June 9, 1997 or any issue or sale after June 9, 1997 of Qualified Stock (other than to any Subsidiary of the Issuer Company) and (2) the issue or sale after June 9, 1997 of any Indebtedness or other securities of the Issue Date Company convertible into or exercisable for Qualified Stock of the Company that have been so converted or exercised, as the case may be, plus (yc) from $86.0 million, which is equal to the issuance and sale aggregate principal amount of Qualified the Company’s 6-7/8% Convertible Subordinated Notes due 2002 that were converted into the Company’s Common Equity Interests after prior to the Issue Date, other than plus (A) any such proceeds which are used to redeem Notes in accordance with paragraph 6(c) of the Notes or (B) any such proceeds or assets received from a Subsidiary of the Issuer, plus
(C) the aggregate amount by which Indebtedness incurred by the Issuer or any Restricted Subsidiary subsequent to the Issue Date is reduced on the Issuer’s balance sheet upon the conversion or exchange (other than by a Subsidiary of the Issuer) into Qualified Equity Interests (less the amount of any cash, or the fair value of assets, distributed by the Issuer or any Restricted Subsidiary upon such conversion or exchange), plus
(Dd) in the case of the disposition or repayment of or return on any Investment that was treated as constituting a Restricted Payment made after the Issue DateJune 9, 1997, an amount (to the extent not included in the computation calculation of the Consolidated Net IncomeIncome referred to in (a)) equal to the lesser of (ix) 100% of the aggregate amount received by the Issuer or any Restricted Subsidiary in cash or other property (valued at the Fair Market Value thereof) as the return of capital with respect to such Investment (including by dividend, distribution or sale of Capital Stock) and (iiy) the amount of such Investment that was treated as a Restricted Payment, in either case, less the cost of the disposition or repayment of such Investment and net (to the extent not included in the calculation of taxesthe Consolidated Net Income referred to in (a)), plus
plus (Ee) upon with respect to any Unrestricted Subsidiary that is redesignated as a Redesignation Restricted Subsidiary after June 9, 1997 in accordance with the definition of Unrestricted Subsidiary (so long as the designation of such Subsidiary as an Unrestricted Subsidiary was treated as a Restricted SubsidiaryPayment made after June 9, 1997 and only to the extent not included in the calculation of the Consolidated Net Income referred to in (a)), an amount equal to the lesser of (ix) the proportionate interest of the Company or a Restricted Subsidiary in an amount equal to the excess of (I) the total assets of such Subsidiary, valued on an aggregate basis at the lesser of book value and Fair Market Value thereof, over (II) the total liabilities of the Issuer’s proportionate interest such Subsidiary, determined in such Subsidiary immediately following such Redesignationaccordance with GAAP, and (iiy) the Designation Amount at the time of such Subsidiary’s designation as an Unrestricted Subsidiary, plus (f) $50 million minus (g) the aggregate amount of the Issuer’s Investments in such Subsidiary to the extent such Investments reduced the all Restricted Payments Basket and were not previously repaid or otherwise reduced(other than Restricted Payments referred to in clause (C) of the immediately succeeding paragraph) made after June 9, 1997 through the Issue Date.
(b) The foregoing provisions shall Clauses (ii) and (iii) of paragraph (a) will not prohibit:
: (1A) the payment by the Issuer or any Restricted Subsidiary of any dividend within 60 days after the date of its declaration thereof, if such dividend could have been made on the date of its declaration the payment would have complied with without violation of the provisions of this Indenture ;
Indenture; (2B) the repurchase, redemption or retirement of any Equity Interests shares of Capital Stock of the Issuer or any Restricted Subsidiary Company in exchange for, or out of the net proceeds of the substantially concurrent issuance and sale (other than to a Subsidiary of the Company) of, other shares of Qualified Equity Interests;
Stock; and (3C) the purchase, redemption or other than pursuant acquisition, cancellation or retirement for value of Capital Stock, or options, warrants, equity appreciation rights or other rights to clause (8) belowpurchase or acquire Capital Stock, the redemption of Equity Interests of the Issuer Company or any Subsidiary held by officers, directors officers or employees or former officers, directors officers or employees of the Company or any Subsidiary (or their transferees, estates or beneficiaries under their estates), upon their death, disability, retirement, severance or termination of employment or service; provided that ) not to exceed $20 million in the aggregate cash consideration paid for all such redemptions shall not exceed since the Issue Date; provided, however, that each Restricted Payment described in clauses (A) $5.0 million during any calendar year (with unused amounts being available to be used in the following calendar year, but not in any succeeding calendar year) plus and (B) of this sentence shall be taken into account for pur- poses of computing the aggregate amount of all Restricted Payments pursuant to clause (iii) of paragraph (a).
(c) For purposes of determining the aggregate and permitted amounts of Restricted Payments made, the amount of any guarantee of any Investment in any Person that was initially treated as a Restricted Payment and which was subsequently terminated or expired, net cash proceeds received of any amounts paid by the Company or contributed any Restricted Subsidiary in respect of such guarantee, shall be deducted.
(d) In determining the “fair market value of Property” for purposes of clause (iii) of the paragraph (a), Property other than cash, Cash Equivalents and Marketable Securities shall be deemed to be equal in value to the Issuer from the issuance and sale after the Issue Date of Qualified Equity Interests “equity value” of the Issuer Capital Stock or other securities issued in exchange therefor. The “equity value” of such Capital Stock or other securities shall be equal to (i) the number of shares of Common Equity issued in the transaction (or issuable upon conversion or exercise of the Capital Stock or other securities issued in the transaction) multiplied by the closing sale price of the Common Equity on its officersprincipal market on the date of the transaction (less, directors in the case of Capital Stock or employees that have not been applied to other securities which require the payment of Restricted Payments pursuant to this clause (3)consideration at the time of conversion or exercise, plus (C) the net cash proceeds of any “key-man” life insurance policies that have not been applied to the payment of Restricted Payments pursuant to this clause (3);
(4) repurchases of Equity Interests that occur or are deemed to occur upon the exercise of stock options if the Equity Interests represents a portion of the exercise price thereof;
(5) Restricted Payments pursuant to the Transactions;
(6) Restricted Payments if after giving effect thereto the Issuer’s Net Leverage Ratio is not greater than 3.0 to 1.0;
(7) other Restricted Payments in an amount not to exceed $50.0 million less the amount of any Restricted Payments (as defined in the Senior Notes Indenture) deemed made on or after the Reference Date and on or prior to the Issue Date pursuant to Section 4.11(b)(7) of the Senior Notes Indenture; provided that Restricted Payments made pursuant to this clause (7) shall not exceed $25.0 million in the aggregate in any twelve-month period; or
(8) the purchase or retirement of Class B Common Stock of the Issuer from any Permitted Holder in an aggregate amount not to exceed $10.0 million in any twelve-month period; provided that no proceeds from the issuance and sale of Qualified Equity Interests used to make a payment pursuant to clause (2consideration payable thereupon) or (3)(Bii) above shall increase if the Restricted Payments BasketCommon Equity is not then traded on the New York Stock Exchange, American Stock Exchange or Nasdaq National Market, or if the Capital Stock or other securities issued in the transaction do not consist of Common Equity (or Capital Stock or other securities convertible into or exercisable for Common Equity), the value of such Capital Stock or other securities as determined by a nationally recognized investment banking firm retained by the Board of Directors of the Company.
Appears in 2 contracts
Sources: Senior Notes Indenture (Horton D R Inc /De/), Nineteenth Supplemental Indenture (Horton D R Inc /De/)
Limitations on Restricted Payments. (a) The Issuer shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, make any Restricted Payment if at the time of such Restricted Payment:
(1) a Default shall have occurred and be continuing or shall occur as a consequence thereof;
(2) the Issuer cannot incur $1.00 of additional Indebtedness pursuant to the Coverage Ratio Exception; or
(3) the amount of such Restricted Payment, when added to the aggregate amount of all other Restricted Payments made after the Issue Date (other than Restricted Payments made pursuant to clauses (2), (3), (4), (5), (6), (7) or (8) of Section 4.11(b)), exceeds the sum (the “Restricted Payments Basket”) of (without duplication):
(A) 50% of Consolidated Net Income for the period (taken as one accounting period) commencing on the first day of the fiscal quarter in 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 such Consolidated Net Income shall be a deficit, minus 100% of such aggregate deficit), plus
(B) 100% of the aggregate net cash proceeds received by the Issuer either (x) as contributions to the common equity of the Issuer after the Issue Date or (y) from the issuance and sale of Qualified Equity Interests after the Issue Date, other than (A) any such proceeds which are used to redeem Notes in accordance with paragraph 6(c5(c) of the Notes or (B) any such proceeds or assets received from a Subsidiary of the Issuer, plus
(C) the aggregate amount by which Indebtedness incurred by the Issuer or any Restricted Subsidiary subsequent to the Issue Date is reduced on the Issuer’s balance sheet upon the conversion or exchange (other than by a Subsidiary of the Issuer) into Qualified Equity Interests (less the amount of any cash, or the fair value of assets, distributed by the Issuer or any Restricted Subsidiary upon such conversion or exchange), plus
(D) in the case of the disposition or repayment of or return on any Investment that was treated as a Restricted Payment made after the Issue Date, an amount (to the extent not included in the computation of Consolidated Net Income) equal to the lesser of (i) 100% of the aggregate amount received by the Issuer or any Restricted Subsidiary in cash or other property (valued at the Fair Market Value thereof) as the return of capital with respect to such Investment and (ii) the amount of such Investment that was treated as a Restricted Payment, in either case, less the cost of the disposition of such Investment and net of taxes, plus
(E) upon a Redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary, the lesser of (i) the Fair Market Value of the Issuer’s proportionate interest in such Subsidiary immediately following such Redesignation, and (ii) the aggregate amount of the Issuer’s Investments in such Subsidiary to the extent such Investments reduced the Restricted Payments Basket and were not previously repaid or otherwise reduced.
(b) The foregoing provisions shall not prohibit:
(1) the payment by the Issuer or any Restricted Subsidiary of any dividend within 60 days after the date of declaration thereof, if on the date of declaration the payment would have complied with the provisions of this Indenture ;
(2) the redemption of any Equity Interests of the Issuer or any Restricted Subsidiary in exchange for, or out of the proceeds of the substantially concurrent issuance and sale of, Qualified Equity Interests;
(3) other than pursuant to clause (8) below, the redemption of Equity Interests of the Issuer held by officers, directors or employees or former officers, directors or employees (or their transferees, estates or beneficiaries under their estates), upon their death, disability, retirement, severance or termination of employment or service; provided that the aggregate cash consideration paid for all such redemptions shall not exceed (A) $5.0 million during any calendar year (with unused amounts being available to be used in the following calendar year, but not in any succeeding calendar year) plus (B) the amount of any net cash proceeds received by or contributed to the Issuer from the issuance and sale after the Issue Date of Qualified Equity Interests of the Issuer to its officers, directors or employees that have not been applied to the payment of Restricted Payments pursuant to this clause (3), plus (C) the net cash proceeds of any “key-man” life insurance policies that have not been applied to the payment of Restricted Payments pursuant to this clause (3);
(4) repurchases of Equity Interests that occur or are deemed to occur upon the exercise of stock options if the Equity Interests represents a portion of the exercise price thereof;
(5) Restricted Payments pursuant to the Transactions;
(6) Restricted Payments if after giving effect thereto the Issuer’s Net Leverage Ratio is not greater than 3.0 to 1.0;
(7) other Restricted Payments in an amount not to exceed $50.0 million less the amount of any Restricted Payments (as defined in the Senior Notes Indenture) deemed made on or after the Reference Date and on or prior to the Issue Date pursuant to Section 4.11(b)(7) of the Senior Notes Indenturemillion; provided that Restricted Payments made pursuant to this clause (7) shall not exceed $25.0 million in the aggregate in any twelve-month period; or
(8) the purchase or retirement of Class B Common Stock of the Issuer from any Permitted Holder in an aggregate amount not to exceed $10.0 million in any twelve-month period; provided that no proceeds from the issuance and sale of Qualified Equity Interests used to make a payment pursuant to clause (2) or (3)(B) above shall increase the Restricted Payments Basket.
Appears in 2 contracts
Sources: Indenture (American Greetings Corp), Indenture (American Greetings Corp)
Limitations on Restricted Payments. (a) The Issuer Company shall not, and shall not permit any Restricted Subsidiary of its Subsidiaries to, directly or indirectly, make any Restricted Payment if at the time of if, after giving effect to such Restricted Payment:Payment on a pro forma basis,
(1i) a Default or an Event of Default shall have occurred and be continuing or shall occur as a consequence thereof;continuing,
(2ii) the Issuer canCompany is not permitted to incur at least $1.00 of additional Indebtedness pursuant to the Coverage Ratio Exception; Debt Incurrence Ratio, or
(3iii) the amount of such Restricted Payment, when added to the aggregate amount of all other Restricted Payments made by the Company and its Subsidiaries, including after the Issue Date (other than giving effect to such proposed Restricted Payments made pursuant to clauses (2)Payment, (3)on and after January 1, (4)2003, (5)would exceed without duplication, (6), (7) or (8) of Section 4.11(b)), exceeds the sum (the “Restricted Payments Basket”) of (without duplication):of:
(A) 50% of the aggregate Consolidated Net Income of the Company for the period (taken as one accounting period) ), commencing on the first day of the fiscal quarter in which the Issue Date occurs January 1, 2003, to and including the last day of the fiscal quarter ended immediately prior to the date of each such calculation for which the consolidated financial statements of the Company are available (or, if such in the event the Consolidated Net Income shall be of the Company for such period is a deficit, then minus 100% of such aggregate deficit), plus
(B) 100% of the aggregate net cash proceeds Net Cash Proceeds received by the Issuer either (x) as contributions to the common equity of the Issuer Company after the Issue Date January 1, 2003 from a Capital Contribution or (y) from the issuance and sale of Qualified Equity Interests after Capital Stock of the Issue Date, Company (other than (A1) any such proceeds which are used to redeem Notes in accordance with paragraph 6(c) one of the Notes Company’s Subsidiaries or (B2) any such proceeds or assets received from to the extent applied in connection with a Subsidiary of the IssuerQualified Exchange after January 1, 2003), plus
(C) the aggregate amount by which Indebtedness incurred by the Issuer or any Restricted Subsidiary subsequent except in each case, in order to avoid duplication, to the Issue Date is reduced on extent any such payment or proceeds have been included in the Issuer’s balance sheet upon calculation of Consolidated Net Income, an amount equal to the conversion or exchange net reduction in Investments (other than by a returns of or from Permitted Investments) in any Person resulting from distributions on or repayments of any Investments, including payments of interest on Indebtedness, dividends, repayments of loans or advances, or other distributions or other transfers of assets, in each case to the Company or any Subsidiary of the Issuer) into Qualified Equity Interests Company or from the Net Cash Proceeds from the sale of any such Investment (less valued in each case as provided in the definition of “Investments”), not to exceed, in each case, the amount of any cashInvestments made after January 1, or the fair value of assets, distributed 2003 by the Issuer Company or any Subsidiary of the Company in such Person (which Investments constituted (or would have constituted) Restricted Subsidiary upon such conversion or exchangePayments), plus
(D) in 50% of any cash dividends received by the case Company or any of its Subsidiaries after January 1, 2003 from an Unrestricted Subsidiary of the disposition or repayment of or return on any Investment that was treated as a Restricted Payment made after the Issue DateCompany, an amount (to the extent that such dividends were not otherwise included in the computation of Consolidated Net Income) equal to the lesser of (i) 100% Income of the aggregate amount received by the Issuer or any Restricted Subsidiary in cash or other property (valued at the Fair Market Value thereof) as the return of capital with respect to Company for such Investment and (ii) the amount of such Investment that was treated as a Restricted Payment, in either case, less the cost of the disposition of such Investment and net of taxesperiod, plus
(E) upon a Redesignation of an to the extent that any Unrestricted Subsidiary of the Company is redesignated as a Restricted SubsidiarySubsidiary of the Company after January 1, 2003, the lesser of (i1) the Fair Market Value fair market value of the Issuer’s proportionate interest Investment by the Company in such Unrestricted Subsidiary immediately following as of the date on which such RedesignationSubsidiary was originally designated as an Unrestricted Subsidiary (the “Designation Date”) plus the fair market value of any additional Investments in such Unrestricted Subsidiary made by the Company after the Designation Date, if any, and (ii2) the aggregate amount fair market value of such Investments as measured on the Issuer’s Investments date of such redesignation as a Subsidiary, in such Subsidiary each case to the extent such Investments reduced amount was not otherwise included in Consolidated Net Income of the Restricted Payments Basket and were not previously repaid or otherwise reducedCompany.
(b) The foregoing provisions shall clauses (ii) and (iii) of paragraph (a), however, will not prohibit:
(1i) any dividend, distribution or other payments by any Subsidiary of the Company on its Equity Interests that is paid pro rata to all holders of such Equity Interests;
(ii) a Qualified Exchange;
(iii) the payment by the Issuer or any Restricted Subsidiary of any dividend on Qualified Capital Stock within 60 days after the date of its declaration thereof, if such dividend could have been made on the date of such declaration the payment would have complied in compliance with the provisions of this Indenture foregoing provisions;
(2iv) the redemption of any Equity Interests repurchases of the Issuer or any Restricted Subsidiary in exchange for, or out Capital Stock of the proceeds Company deemed to occur on the exercise of the substantially concurrent issuance and sale of, Qualified Equity Interestsstock options;
(3v) payments in lieu of fractional shares not to exceed $2,000,000 in the aggregate;
(vi) repurchases of Capital Stock of the Company in accordance with a repurchase program that is approved and adopted by the Board of Directors of the Company and whose primary purpose is to provide Capital Stock to satisfy the obligations of the Company under stock option plans and employee stock purchase plans not to exceed $3,000,000 per annum;
(vii) that portion of Investments the payment for which consists exclusively of the Qualified Capital Stock; or
(viii) other than Restricted Payments not to exceed $30,000,000 in the aggregate.
(c) The full amount of any Restricted Payment made pursuant to the foregoing clauses (i), (iii), (v), (vi), and (viii) (but not pursuant to clause (8) belowii), the redemption (iv) and (vii)) of Equity Interests paragraph (b) above, however, will be counted as Restricted Payments made for purposes of the Issuer held by officers, directors or employees or former officers, directors or employees (or their transferees, estates or beneficiaries under their estates), upon their death, disability, retirement, severance or termination calculation of employment or service; provided that the aggregate cash consideration paid for all such redemptions shall not exceed (A) $5.0 million during any calendar year (with unused amounts being amount of Restricted Payments available to be used made referred to in the following calendar year, but not in any succeeding calendar year) plus (B) the amount of any net cash proceeds received by or contributed to the Issuer from the issuance and sale after the Issue Date of Qualified Equity Interests of the Issuer to its officers, directors or employees that have not been applied to the payment of Restricted Payments pursuant to this clause (3), plus iii) of paragraph (Ca) the net cash proceeds of any “key-man” life insurance policies that have not been applied to the payment of Restricted Payments pursuant to this clause (3);above.
(4d) repurchases For purposes of Equity Interests that occur or are deemed to occur upon the exercise of stock options if the Equity Interests represents a portion of the exercise price thereof;
(5) Restricted Payments pursuant to the Transactions;
(6) Restricted Payments if after giving effect thereto the Issuer’s Net Leverage Ratio is not greater than 3.0 to 1.0;
(7) other Restricted Payments in an amount not to exceed $50.0 million less this Section 4.9, the amount of any Restricted Payments (Payment made or returned, if other than in cash, shall be the fair market value thereof, as defined determined in the Senior Notes Indenture) deemed good faith reasonable judgment of the Board of Directors of the Company, unless stated otherwise, at the time made on or after returned, as applicable. Additionally, not later than the Reference Date and on or prior date of making each Restricted Payment, the Company shall deliver an Officers’ Certificate to the Issue Date Trustee describing in reasonable detail the nature of such Restricted Payment, stating the amount of such Restricted Payment, stating in reasonable detail the provisions hereof pursuant to Section 4.11(b)(7) of which such Restricted Payment was made and certifying that such Restricted Payment was made in compliance with the Senior Notes Indenture; provided that Restricted Payments made pursuant to this clause (7) shall not exceed $25.0 million in the aggregate in any twelve-month period; or
(8) the purchase or retirement of Class B Common Stock of the Issuer from any Permitted Holder in an aggregate amount not to exceed $10.0 million in any twelve-month period; provided that no proceeds from the issuance and sale of Qualified Equity Interests used to make a payment pursuant to clause (2) or (3)(B) above shall increase the Restricted Payments Basketterms hereof.
Appears in 1 contract
Sources: Indenture (Bio Rad Laboratories Inc)
Limitations on Restricted Payments. (a) The Hovnanian and the Issuer shall will not, and shall will not cause or permit any Restricted Subsidiary to, directly or indirectly, make any Restricted Payment if at the time of such Restricted Paymentunless:
(1i) a no Default or Event of Default shall have occurred and be continuing at the time of or shall occur as a consequence thereofimmediately after giving effect to such Restricted Payment;
(2ii) the Issuer cannot incur $1.00 of additional Indebtedness pursuant immediately after giving effect to the Coverage Ratio Exception; or
(3) the amount of such Restricted Payment, when added Hovnanian could incur at least $1.00 of Indebtedness pursuant to Section 3.05(a) hereof; and
(iii) immediately after giving effect to such Restricted Payment, the aggregate amount of all other Restricted Payments (including the Fair Market Value of any non-cash Restricted Payment) declared or made after the Issue Date (other than Restricted Payments made pursuant to clauses (2)May 4, (3), (4), (5), (6), (7) or (8) of Section 4.11(b)), exceeds 1999 does not exceed the sum (the “Restricted Payments Basket”) of (without duplication):of:
(A) 50% of the Consolidated Net Income for of Hovnanian on a cumulative basis during the period (taken as one accounting period) commencing on the first day of the fiscal quarter in which the Issue Date occurs to from and including February 1, 1999 and ending on the last day of the Hovnanian’s fiscal quarter ended immediately prior to preceding the date of such calculation for which consolidated financial statements are available Restricted Payment (or, if or in the event such Consolidated Net Income shall be a deficit, minus 100% of such aggregate deficit), plus
(B) 100% of the aggregate net cash proceeds of and the Fair Market Value of Property received by the Issuer either Hovnanian from (x1) as contributions any capital contribution to the common equity of the Issuer Hovnanian after the Issue Date February 1, 1999 or (y) from the issuance and any issue or sale after February 1, 1999 of Qualified Equity Interests after the Issue Date, Stock (other than (A) to any such proceeds which are used to redeem Notes in accordance with paragraph 6(c) of the Notes or (B) any such proceeds or assets received from a Subsidiary of Hovnanian) and (2) the Issuerissue or sale after February 1, 1999 of any Indebtedness or other securities of Hovnanian convertible into or exercisable for Qualified Stock of Hovnanian that have been so converted or exercised, as the case may be, plus
(C) the aggregate amount by which Indebtedness incurred by the Issuer or any Restricted Subsidiary subsequent to the Issue Date is reduced on the Issuer’s balance sheet upon the conversion or exchange (other than by a Subsidiary of the Issuer) into Qualified Equity Interests (less the amount of any cash, or the fair value of assets, distributed by the Issuer or any Restricted Subsidiary upon such conversion or exchange), plus
(D) in the case of the disposition or repayment of or return on any Investment that was treated as constituting a Restricted Payment made after the Issue DateMay 4, 1999, an amount (to the extent not included in the computation calculation of Consolidated Net IncomeIncome referred to in (A)) equal to the lesser of (ix) 100% of the aggregate amount received by the Issuer or any Restricted Subsidiary in cash or other property (valued at the Fair Market Value thereof) as the return of capital with respect to such Investment (including by dividend, distribution or sale of Capital Stock) and (iiy) the amount of such Investment that was treated as a Restricted Payment, in either case, less the cost of the disposition or repayment of such Investment (to the extent not included in the calculation of Consolidated Net Income referred to in (A)), plus
(D) with respect to any Unrestricted Subsidiary that is redesignated as a Restricted Subsidiary after May 4, 1999, in accordance with the definition of Unrestricted Subsidiary (so long as the designation of such Subsidiary as an Unrestricted Subsidiary was treated as a Restricted Payment made after the Issue Date, and net only to the extent not included in the calculation of taxesConsolidated Net Income referred to in (A)), an amount equal to the lesser of (x) the proportionate interest of Hovnanian or a Restricted Subsidiary in an amount equal to the excess of (I) the total assets of such Subsidiary, valued on an aggregate basis at the lesser of book value and Fair Market Value thereof, over (II) the total liabilities of such Subsidiary, determined in accordance with GAAP, and (y) the Designation Amount at the time of such Subsidiary’s designation as an Unrestricted Subsidiary, plus
(E) upon a Redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary$17 million, the lesser of minus
(i) the Fair Market Value of the Issuer’s proportionate interest in such Subsidiary immediately following such Redesignation, and (iiF) the aggregate amount of the Issuer’s Investments in such Subsidiary to the extent such Investments reduced the all Restricted Payments Basket and were not previously repaid or otherwise reduced(other than Restricted Payments referred to in clause (iii) of paragraph (b) below) made after February 1, 1999 through May 4, 1999.
(b) The foregoing provisions shall Clauses (ii) and (iii) of paragraph (a) will not prohibit:
(1i) the payment by the Issuer or any Restricted Subsidiary of any dividend within 60 days after the date of its declaration thereof, if such dividend could have been made on the date of its declaration the payment would have complied with without violation of the provisions of this Indenture the Indenture;
(2ii) the repurchase, redemption or retirement of any Equity Interests shares of the Issuer or any Restricted Subsidiary Capital Stock of Hovnanian in exchange for, or out of the net proceeds of the substantially concurrent issuance and sale (other than to a Subsidiary of Hovnanian) of, other shares of Qualified Equity Interests;Stock; and
(3iii) the purchase, redemption or other than pursuant acquisition, cancellation or retirement for value of Capital Stock, or options, warrants, equity appreciation rights or other rights to clause (8) belowpurchase or acquire Capital Stock, the redemption of Equity Interests of the Issuer Hovnanian or any Subsidiary held by officers, directors officers or employees or former officers, directors officers or employees of Hovnanian or any Subsidiary (or their transferees, estates or beneficiaries under their estates), upon their death, disability, retirement, severance or termination of employment or service; provided that ) not to exceed $10 million in the aggregate cash consideration paid since May 4, 1999; provided, however that each Restricted Payment described in clauses (i) and (ii) of this sentence shall be taken into account for purposes of computing the aggregate amount of all such redemptions shall not exceed Restricted Payments pursuant to clause (Aiii) $5.0 million during any calendar year of the immediately preceding paragraph.
(with unused c) For purposes of determining the aggregate and permitted amounts being available to be used in the following calendar yearof Restricted Payments made, but not in any succeeding calendar year) plus (B) the amount of any guarantee of any Investment in any Person that was initially treated as a Restricted Payment and which was subsequently terminated or expired, net cash proceeds received of any amounts paid by Hovnanian or contributed any Restricted Subsidiary in respect of such guarantee, shall be deducted.
(d) In determining the “Fair Market Value of Property” for purposes of clause (iii) of paragraph (a), Property other than cash, Cash Equivalents and Marketable Securities shall be deemed to be equal in value to the Issuer from the issuance and sale after the Issue Date of Qualified Equity Interests “equity value” of the Issuer Capital Stock or other securities issued in exchange therefor. The equity value of such Capital Stock or other securities shall be equal to (i) the number of shares of Common Equity issued in the transaction (or issuable upon conversion or exercise of the Capital Stock or other securities issued in the transaction) multiplied by the closing sale price of the Common Equity on its officersprincipal market on the date of the transaction (less, directors in the case of Capital Stock or employees that have not been applied to other securities which require the payment of Restricted Payments pursuant to this clause (3)consideration at the time of conversion or exercise, plus (C) the net cash proceeds of any “key-man” life insurance policies that have not been applied to the payment of Restricted Payments pursuant to this clause (3);
(4) repurchases of Equity Interests that occur or are deemed to occur upon the exercise of stock options if the Equity Interests represents a portion of the exercise price thereof;
(5) Restricted Payments pursuant to the Transactions;
(6) Restricted Payments if after giving effect thereto the Issuer’s Net Leverage Ratio is not greater than 3.0 to 1.0;
(7) other Restricted Payments in an amount not to exceed $50.0 million less the amount of any Restricted Payments (as defined in the Senior Notes Indenture) deemed made on or after the Reference Date and on or prior to the Issue Date pursuant to Section 4.11(b)(7) of the Senior Notes Indenture; provided that Restricted Payments made pursuant to this clause (7) shall not exceed $25.0 million in the aggregate in any twelve-month period; or
(8) the purchase or retirement of Class B Common Stock of the Issuer from any Permitted Holder in an aggregate amount not to exceed $10.0 million in any twelve-month period; provided that no proceeds from the issuance and sale of Qualified Equity Interests used to make a payment pursuant to clause (2consideration payable thereupon) or (3)(Bii) above shall increase if the Restricted Payments BasketCommon Equity is not then traded on the New York Stock Exchange, American Stock Exchange or The Nasdaq National Market, or if the Capital Stock or other securities issued in the transaction do not consist of Common Equity (or Capital Stock or other securities convertible into or exercisable for Common Equity), the value (if more than $10 million) of such Capital Stock or other securities as determined by a nationally recognized investment banking firm retained by the Board of Directors of Hovnanian.
Appears in 1 contract
Sources: Seventh Supplemental Indenture (Hovnanian Enterprises Inc)
Limitations on Restricted Payments. (a) The Issuer Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, make any Restricted Payment if at the time of if, after giving effect to such Restricted Payment:
(1i) a an Event of Default or event that, after the giving of notice or lapse of time or both would become an Event of Default, shall have occurred and be continuing or shall occur as a consequence thereofcontinuing;
(2ii) the Issuer cannot incur $1.00 Consolidated Fixed Charge Ratio of additional Indebtedness pursuant the Company would be less than 1.75 to the Coverage Ratio Exception1.0; or
(3iii) the aggregate amount expended by the Company and its Subsidiaries for all Restricted Payments (the amount of such Restricted Payment, when added to the aggregate amount any single or related series of all other Restricted Payments made so expended or distributed, if in excess of $15 million and other than in cash, to be determined in good faith by the Board of Directors, as evidenced by a Board resolution) after the Issue Date (other than Restricted Payments made pursuant to clauses (2), (3), (4), (5), (6), (7) or (8) of Section 4.11(b)), exceeds date hereof shall exceed the sum (the “Restricted Payments Basket”) of (without duplication):of:
(A) 50% of Consolidated the Net Income of the Company and its Consolidated Subsidiaries for the period (taken as one accounting period) commencing beginning on the first day of the fiscal quarter in which the Issue Date occurs to April 1, 2003 and including ending on the last day of the fiscal quarter ended for which financial information is available immediately prior to the date of such calculation for which consolidated financial statements are available (or, calculation; provided that if such Consolidated Net Income shall be a deficitfor such period is less than zero, then minus 100% of such aggregate deficit), net loss; plus
(B) 100% of the aggregate net proceeds (including the fair market value of proceeds other than cash, as determined in good faith by the Board of Directors, as evidenced by a Board resolution if the fair market value of such non-cash proceeds is in excess of $15 million) received by the Issuer either (x) as contributions to the common equity of the Issuer Company from and after the Issue Date or (y) date hereof from the issuance and sale of Qualified Equity Interests after the Issue Date, (other than to a Subsidiary) of its Capital Stock (Aexcluding Redeemable Stock, 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), and warrants, options and rights to purchase its Capital Stock (other than Redeemable Stock), but excluding the net proceeds from the issuance, sale, exchange, conversion or other disposition of its Capital Stock convertible (unless solely at the option of the Company) into (x) any such proceeds which are used to redeem Notes in accordance with paragraph 6(c) of the Notes security other than its Capital Stock or (By) any such proceeds or assets received from a Subsidiary of the Issuer, plusits Redeemable Stock; less
(C) the aggregate amount by which Indebtedness incurred expended by the Issuer Company and its Subsidiaries after the date hereof to optionally repay, repurchase or otherwise retire for value any Debt of the Company other than First-Priority Secured Debt, Second-Priority Secured Debt or any Restricted Subsidiary subsequent revolving credit facility (it being understood that the repurchase of senior and senior subordinated notes pursuant to the Issue Date Tender Offer as required by Section 4.15 is reduced on not optional); provided that the Issuer’s balance sheet upon the conversion or exchange foregoing clause (other than by a Subsidiary of the Issueriii) into Qualified Equity Interests (less the amount of any cash, or the fair value of assets, distributed by the Issuer or any Restricted Subsidiary upon such conversion or exchange), plus
(D) in the case of the disposition or repayment of or return on any Investment that was treated as a Restricted Payment made after the Issue Date, an amount (to the extent not included in the computation of Consolidated Net Income) equal to the lesser of (i) 100% of the aggregate amount received by the Issuer or any Restricted Subsidiary in cash or other property (valued at the Fair Market Value thereof) as the return of capital with respect to such Investment and (ii) the amount of such Investment that was treated as a Restricted Payment, in either case, less the cost of the disposition of such Investment and net of taxes, plus
(E) upon a Redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary, the lesser of (i) the Fair Market Value of the Issuer’s proportionate interest in such Subsidiary immediately following such Redesignation, and (ii) the aggregate amount of the Issuer’s Investments in such Subsidiary to the extent such Investments reduced the Restricted Payments Basket and were not previously repaid or otherwise reduced.
(b) The foregoing provisions shall not prohibit:
(1) prevent the payment by the Issuer or any Restricted Subsidiary of any dividend within 60 days after the date of its declaration thereof, if such dividend could have been made on the date of its declaration the payment would have complied with without violation of the provisions of this Indenture ;covenant.
(2b) For purposes of clause (a)(iii)(B) above, the redemption aggregate net proceeds received by the Company (i) from the issuance of any Equity Interests of its Capital Stock upon the Issuer conversion of, or any Restricted Subsidiary in exchange for, or out securities evidencing Debt of the Company, shall be calculated on the assumption that the gross proceeds from such issuance are equal to the aggregate principal amount (or, if discount Debt, the accreted principal amount) of the Debt evidenced by such securities converted or exchanged and (ii) upon the conversion or exchange of other securities of the Company shall be equal to the aggregate net proceeds of the substantially concurrent issuance and original sale of, Qualified Equity Interests;
(3) other than pursuant to of the securities so converted or exchanged if such proceeds of such original sale were not previously included in any calculation for the purposes of clause (8) below, the redemption of Equity Interests of the Issuer held by officers, directors or employees or former officers, directors or employees (or their transferees, estates or beneficiaries under their estates), upon their death, disability, retirement, severance or termination of employment or service; provided that the aggregate cash consideration paid for all such redemptions shall not exceed (Aa)(iii)(B) $5.0 million during above plus any calendar year (with unused amounts being available to be used in the following calendar year, but not in any succeeding calendar year) plus (B) the amount of any net cash proceeds received by or contributed additional sums payable to the Issuer from the issuance and sale after the Issue Date of Qualified Equity Interests of the Issuer to its officers, directors Company upon conversion or employees that have not been applied to the payment of Restricted Payments pursuant to this clause (3), plus (C) the net cash proceeds of any “key-man” life insurance policies that have not been applied to the payment of Restricted Payments pursuant to this clause (3);
(4) repurchases of Equity Interests that occur or are deemed to occur upon the exercise of stock options if the Equity Interests represents a portion of the exercise price thereof;
(5) Restricted Payments pursuant to the Transactions;
(6) Restricted Payments if after giving effect thereto the Issuer’s Net Leverage Ratio is not greater than 3.0 to 1.0;
(7) other Restricted Payments in an amount not to exceed $50.0 million less the amount of any Restricted Payments (as defined in the Senior Notes Indenture) deemed made on or after the Reference Date and on or prior to the Issue Date pursuant to Section 4.11(b)(7) of the Senior Notes Indenture; provided that Restricted Payments made pursuant to this clause (7) shall not exceed $25.0 million in the aggregate in any twelve-month period; or
(8) the purchase or retirement of Class B Common Stock of the Issuer from any Permitted Holder in an aggregate amount not to exceed $10.0 million in any twelve-month period; provided that no proceeds from the issuance and sale of Qualified Equity Interests used to make a payment pursuant to clause (2) or (3)(B) above shall increase the Restricted Payments Basketexchange.
Appears in 1 contract
Sources: Senior Indenture (Aes Corporation)
Limitations on Restricted Payments. (a) The Issuer Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, make any Restricted Payment if at the time of such Restricted Paymentunless:
(1) a no Default or Event of Default shall have occurred and be continuing at the time of or shall occur as a consequence thereof;immediately after giving effect to such Restricted Payment;
(2) immediately after giving effect to such Restricted Payment, the Issuer cannot Company could incur at least $1.00 of additional Indebtedness pursuant to the Coverage Ratio Exception; orException; and
(3) the amount of such Restricted Payment, when added to the aggregate amount of all other Restricted Payments made after the Issue Date (other than Restricted Payments made pursuant to clauses (2Section 4.03(b)(2), (3), (4), (5), (6), (7) or (8) of Section 4.11(b7)), exceeds does not exceed the sum (the “Restricted Payments Basket”) of (without duplication):
(A) $60,000,000, plus
(B) 50% of Consolidated Net Income for the period (taken as one accounting period) commencing on the first day of the fiscal quarter in which the Issue Date occurs from July 1, 2023 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 such Consolidated Net Income shall be a deficit, minus 100% of such aggregate deficit), plus
(BC) 100% of the aggregate net cash proceeds or the Fair Market Value (as determined by the Board of Directors of the Company) of any assets to be used in a Permitted Business received by the Issuer Company either (x) as contributions to the common equity of the Issuer Company after the Issue Date or (y) from the issuance and sale of Qualified Equity Interests after the Issue Date, other than (A) any such proceeds which are used to redeem Notes in accordance with paragraph 6(c) of the Notes or (B) any such proceeds or assets received from a Subsidiary of the Issuer, plus
(CD) the aggregate amount by which Indebtedness incurred by of the Issuer Company or any Restricted Subsidiary subsequent to the Issue Date is reduced on the IssuerCompany’s balance sheet upon the conversion or exchange (other than by a Subsidiary of the IssuerCompany) of Indebtedness into Qualified Equity Interests (less the amount of any cash, or the fair value of assets, distributed by the Issuer Company or any Restricted Subsidiary upon such conversion or exchange), plus
(DE) in the case of the disposition or repayment of or return on any Investment that was treated as a Restricted Payment made after the Issue Date, an amount (to the extent not included in the computation of Consolidated Net Income) equal to the lesser of (i) 100% of the aggregate amount received by the Issuer or any Restricted Subsidiary in cash or other property (valued at the Fair Market Value thereof) as the return of capital with respect to such Investment and (ii) the amount of such Investment that was treated as a Restricted Payment, in either case, less the cost of the disposition of such Investment and net of taxes, plus
(EF) upon a Redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary, the lesser of (i) the Fair Market Value of the IssuerCompany’s proportionate interest in such Subsidiary immediately following such Redesignation, and (ii) the aggregate amount of the IssuerCompany’s Investments in such Subsidiary to the extent such Investments reduced the amount available for subsequent Restricted Payments Basket under this Section 4.03(a)(3)(F) and were not previously repaid or otherwise reduced.
(b) The foregoing provisions of Section 4.03(a) shall not prohibit:
(1) the payment by the Issuer Company or any Restricted Subsidiary of any dividend or similar distribution within 60 days after the date of declaration thereof, if on the date of declaration the payment would have complied with the provisions of this Indenture ;Indenture;
(2) the redemption making of any Equity Interests of the Issuer or any Restricted Subsidiary Payment in exchange for, or out of the proceeds of the substantially concurrent issuance and sale of, Qualified Equity Interests;Interests (other than to the Company or any of its Subsidiaries);
(3) the repurchase, redemption, defeasance or other than pursuant acquisition or retirement for value of Subordinated Indebtedness of the Company or any Restricted Subsidiary in exchange for, or out of the proceeds of the substantially concurrent incurrence of, Refinancing Indebtedness permitted to clause be incurred under Section 4.02 and the other terms of this Indenture;
(8) below4) the repurchase, the redemption redemption, defeasance or other acquisition or retirement for value of Equity Interests of the Issuer Company held by officers, directors or employees or former officers, directors or employees (or their transferees, estates or beneficiaries under their estates), pursuant to any equity subscription agreement, stock option agreement, stockholders’ agreement or similar agreement or benefit plan of any kind or upon their bankruptcy or petition for bankruptcy, death, disability, retirement, severance or termination of employment or service; service; provided that the aggregate cash consideration paid for all such redemptions shall not exceed (A) $5.0 million 5,000,000 during any calendar year (with it being understood, however, that unused amounts being permitted to be paid pursuant to this proviso are available to be used in carried over to subsequent calendar years, so long as the following calendar year, but not in any succeeding calendar year) plus (B) the amount of any net cash proceeds received by or contributed to the Issuer from the issuance and sale after the Issue Date of Qualified Equity Interests of the Issuer to its officers, directors or employees that have not been consideration applied to the payment redemption of Restricted Payments Equity Interests pursuant to this clause (3), plus (CSection 4.03(b)(4) the net cash proceeds of shall in no event exceed $10,000,000 in any “key-man” life insurance policies that have not been applied to the payment of Restricted Payments pursuant to this clause (3);calendar year);
(45) repurchases of Equity Interests that occur or are deemed to occur upon the exercise of stock options or stock appreciation rights if the Equity Interests represents represent a portion of the exercise price thereof;
(5) Restricted Payments pursuant to the Transactions;thereof;
(6) Restricted Payments if after giving effect thereto the Issuer’s Net Leverage Ratio is not greater than 3.0 repurchase of Equity Interests upon vesting of restricted stock, restricted stock units, performance share units or similar equity incentives to 1.0;satisfy tax withholding or similar tax obligations with respect thereto;
(7) other additional Restricted Payments in an aggregate amount, when taken together with all Restricted Payments made pursuant to this Section 4.03(b)(7) and then outstanding, does not exceed the greater of $110,000,000 and 5% of Consolidated Tangible Assets at the time of such Restricted Payment;
(8) the payment of dividends on the Company’s Qualified Equity Interests (other than preferred stock) or the payment of any dividend to any parent of the Company to fund the payment by such parent of a dividend on such entity’s Qualified Equity Interests (other than preferred stock) of up to 6% per annum of the net proceeds received by the Company from any public equity offering after the Issue Date of such Qualified Equity Interests of the Company or contributed to the Company as common equity capital by any parent from any public equity offering of such Qualified Equity Interests of any direct or indirect parent of the Company; or
(9) the payment of dividends on the preferred stock of the Company that is outstanding on the Issue Date (in an amount not to exceed $50.0 million less the amount of any Restricted Payments (as defined in the Senior Notes Indenture) deemed made on or after the Reference Date and on or prior that required pursuant to the terms thereof as in effect on the Issue Date pursuant to Section 4.11(b)(7) of the Senior Notes Indenture; provided that Restricted Payments made pursuant to this clause (7) shall not exceed $25.0 million in the aggregate in any twelve-month period; or
(8) the purchase or retirement of Class B Common Stock of the Issuer from any Permitted Holder in an aggregate amount not to exceed $10.0 million in any twelve-month periodDate); provided that no proceeds from the issuance and sale of Qualified Equity Interests used to make a payment pursuant to clause (2Section 4.03(b)(2) or (3)(B) above shall increase the Restricted Payments Basket, except to the extent the proceeds thereof exceed the amounts used to effect the transactions described therein. The amount of all Restricted Payments (other than cash) will be the Fair Market Value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company or a Restricted Subsidiary of the Company, as the case may be, pursuant to the Restricted Payment.
Appears in 1 contract
Limitations on Restricted Payments. (a) The Issuer Partnership shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, make any Restricted Payment if unless, at the time of and after giving effect to such Restricted Payment:
, (1i) no Default (other than a Reporting Default) or Event of Default shall have occurred and be continuing or shall would occur as a consequence thereof;thereof and (ii) either:
(21) if (i) the Issuer cannot incur $1.00 of additional Indebtedness pursuant to the Consolidated Interest Coverage Ratio Exception; or
for the Partnership’s four most recent fiscal quarters for which financial statements are publicly available is not less than 1.85 to 1.0 and (3ii) the amount Consolidated Leverage Ratio of the Partnership for the four most recent fiscal quarters for which financial statements are publicly available is no greater than 4.75 to 1.0, such Restricted Payment, when added to together with the aggregate amount of all other Restricted Payments made after by the Issue Date (other Partnership and its Restricted Subsidiaries during the quarter in which such Restricted Payment is made, is less than Restricted Payments made pursuant to clauses (2)the sum, (3), (4), (5), (6), (7) or (8) of Section 4.11(b)), exceeds the sum (the “Restricted Payments Basket”) of (without duplication):, of:
(A) 50% of Consolidated Net Income for the period (taken Available Cash from Operating Surplus as one accounting period) commencing on the first day of the fiscal quarter in which the Issue Date occurs to and including the last day end of the fiscal quarter ended immediately prior to the date of such calculation for which consolidated financial statements are available (or, if such Consolidated Net Income shall be a deficit, minus 100% of such aggregate deficit)preceding quarter, plus
(B) 100% the sum of (i) the aggregate net cash proceeds received by the Issuer either of any (x1) as contributions substantially concurrent capital contribution to the common equity of the Issuer Partnership from any Person made on or after the Issue Date or (y2) from the substantially concurrent issuance and sale (other than to a Restricted Subsidiary of the Partnership) made on or after the Issue Date of Qualified Equity Interests of the Partnership or from the issuance or sale made on or after the Issue DateDate of convertible or exchangeable Disqualified Equity Interests or convertible or exchangeable debt securities of the Partnership that have been converted into or exchanged for such Equity Interests (other than Disqualified Equity Interests) (with a Restricted Payment being deemed substantially concurrent if such capital contribution, issuance, sale, conversion or exchange occurs within 120 days of such Restricted Payment), other than (A) any such proceeds which are used to redeem Notes in accordance with paragraph 6(csubclause (c) of paragraph 5 of the Notes Note, or (B) any such proceeds or assets received from a Subsidiary of the IssuerPartnership, plus
(C) the aggregate amount by which Indebtedness incurred by the Issuer or any Restricted Subsidiary subsequent to the Issue Date is reduced on the Issuer’s balance sheet upon the conversion or exchange (other than by a Subsidiary of the Issuer) into Qualified Equity Interests (less the amount of any cash, or the fair value of assets, distributed by the Issuer or any Restricted Subsidiary upon such conversion or exchange), plus
(D) in the case of the disposition or repayment of or return on extent that any Investment that was treated as a Restricted Payment and that was made on or after the Issue DateDate is sold for cash or Cash Equivalents or otherwise liquidated or repaid for cash or Cash Equivalents, an amount (to the extent not included in the computation of Consolidated Net Income) equal to the lesser of (i) 100% the refund of the aggregate amount received by the Issuer capital or any Restricted Subsidiary similar payment made in cash or other property (valued at the Fair Market Value thereof) as the return of capital Cash Equivalents with respect to such Investment (less the cost of such disposition, if any) and (ii) the initial amount of such Investment that was treated as a Restricted Payment, in either case, less the cost Payment (other than to a Restricted Subsidiary of the disposition of such Investment and net of taxesPartnership), plus
(E) upon a Redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary, the lesser of (iD) the Fair Market Value net reduction in Investments treated as Restricted Payments resulting from dividends, repayments of loans or advances, or other transfers of assets in each case to the Issuer’s proportionate interest in such Subsidiary immediately following such RedesignationPartnership or any of its Restricted Subsidiaries from any Person (including, without limitation, Unrestricted Subsidiaries) or from Redesignations of Unrestricted Subsidiaries as Restricted Subsidiaries (items (B), (C) and (iiD) being referred to as “Incremental Funds”), minus
(E) the aggregate amount of Incremental Funds previously expended pursuant to this clause (1) or clause (2) below; or
(2) if (i) the IssuerConsolidated Interest Coverage Ratio for the Partnership’s Investments four most recent fiscal quarters for which financial statements are publicly available is less than 1.85 to 1.0 or (ii) the Consolidated Leverage Ratio of the Partnership for the four most recent fiscal quarters for which financial statements are publicly available is greater than 4.75 to 1.0, such Restricted Payment together with the aggregate amount of all other Restricted Payments made by the Partnership and its Restricted Subsidiaries during the quarter in which such Subsidiary Restricted Payment is made (such Restricted Payments for purposes of this clause (2) meaning only distributions on common units of the Partnership, plus the related distribution on the general partner interest) is less than the sum, without duplication, of:
(A) $30.0 million less the aggregate amount of all prior Restricted Payments made by the Partnership and its Restricted Subsidiaries pursuant to this clause (2)(A) since the Issue Date, plus
(B) Incremental Funds to the extent such Investments reduced the Restricted Payments Basket and were not previously repaid expended pursuant to this clause (2) or clause (1) above. For the avoidance of doubt, Incremental Funds can only be used under clause (1) above if they have not been otherwise reducedincluded in Available Cash from Operating Surplus.
(b) The foregoing provisions shall not prohibit:
(1) the payment by the Issuer Partnership or any Restricted Subsidiary of any dividend or distribution within 60 days after the date of declaration thereof, if on the date of declaration the payment would have complied with the provisions of this Indenture Indenture;
(2) the redemption of any Equity Interests of the Issuer Partnership or any Restricted Subsidiary in exchange for, or out of the proceeds of the substantially concurrent issuance and sale of, Qualified Equity Interests; provided however, that the amount of any such net cash proceeds that are utilized for any such redemption, shall be excluded or deducted from the calculation of Available Cash from Operating Surplus and Incremental Funds;
(3) the redemption of Subordinated Indebtedness of the Partnership or any Restricted Subsidiary (a) in exchange for, or out of the proceeds of the substantially concurrent issuance and sale of, Qualified Equity Interests, (with an exchange or sale being deemed substantially concurrent if such redemption occurs within 120 days of such sale); provided, however, that the amount of any such net cash proceeds that are utilized for any such redemption will be excluded or deducted from the calculation of Available Cash from Operating Surplus and Incremental Funds; (b) in exchange for, or out of the proceeds of the substantially concurrent incurrence of, Refinancing Indebtedness permitted to be incurred under Section 4.10 and the other than terms of this Indenture or (c) upon a Change of Control or in connection with an Asset Sale to the extent required by the agreement governing such Subordinated Indebtedness but only if the Partnership shall have complied with Section 4.12 and Section 4.15 and purchased all Notes validly tendered pursuant to clause the relevant offer prior to redeeming such Subordinated Indebtedness;
(8) below, 4) the payment of any dividend or distribution by a Restricted Subsidiary of the Partnership to the holders of its Equity Interests on a pro rata basis; or
(5) the redemption of any Equity Interests of the Partnership or any Restricted Subsidiary of the Partnership pursuant to any director or employee equity subscription agreement or equity option agreement or other employee benefit plan or to satisfy obligations under any Equity Interests appreciation rights or option plan or similar arrangement; provided, however, that the aggregate price paid for all such redeemed Equity Interests may not exceed $5.0 million in any calendar year, with any portion of such $5.0 million amount that is unused in any calendar year to be carried forward to the next calendar years and added to such amount; provided further that such amount in any calendar year may be increased by an amount not to exceed (a) the cash proceeds received by the Partnership or any of the Restricted Subsidiaries from the sale of Equity Interests of the Issuer held by officers, Partnership to members of management or directors of the Partnership or employees its Affiliates that occurs on or former officers, directors or employees (or their transferees, estates or beneficiaries under their estates), upon their death, disability, retirement, severance or termination of employment or service; provided that the aggregate cash consideration paid for all such redemptions shall not exceed (A) $5.0 million during any calendar year (with unused amounts being available to be used in the following calendar year, but not in any succeeding calendar year) plus (B) the amount of any net cash proceeds received by or contributed to the Issuer from the issuance and sale after the Issue Date (to the extent the cash proceeds from the sale of Qualified such Equity Interests of the Issuer to its officers, directors or employees that have not otherwise been applied to the payment of Restricted Payments pursuant to this by virtue of clause (31)(B) of clause (a) above), plus (Cb) the net cash proceeds of any “key-man” key man life insurance policies that have not been applied to received by the payment of Restricted Payments pursuant to this clause (3);
(4) repurchases of Equity Interests that occur Partnership or are deemed to occur upon the exercise of stock options if the Equity Interests represents a portion any of the exercise price thereof;
(5) Restricted Payments pursuant to Subsidiaries after the TransactionsIssue Date;
(6) Restricted Payments if after giving effect thereto the Issuer’s Net Leverage Ratio is not greater than 3.0 any redemptions of Equity Interests made in lieu of withholding taxes in connection with any exercise or exchange of warrants, options or rights to 1.0acquire Equity Interests;
(7) other in connection with an acquisition by the Partnership or any of its Restricted Payments Subsidiaries, the return to the Partnership or any of its Restricted Subsidiaries of Equity Interests of the Partnership or its Restricted Subsidiaries constituting a portion of the purchase consideration in an amount not settlement of indemnification claims;
(8) payments or distributions to exceed $50.0 million less the amount dissenting holders of any Equity Interests pursuant to applicable law or in connection with the settlement or other satisfaction of legal claims made pursuant to or in connection with a consolidation, merger or transfer of assets;
(9) the declaration and payment of scheduled or accrued dividends to holders of any class of or series of Disqualified Equity Interests of the Partnership or any of its Restricted Payments (as defined in the Senior Notes Indenture) deemed made Subsidiaries issued on or after the Reference Issue Date and on in accordance with Section 4.10. In computing the amount of Restricted Payments previously made for purposes of clause (a) of this Section 4.11, Restricted Payments made under clauses (1) (but only if the declaration of such dividend or other distribution has not been counted in a prior period) and, to the Issue Date pursuant extent of amounts paid to Section 4.11(b)(7holders other than Partnership or a Restricted Subsidiary, (4) and (5) of clause (b) shall be included, and Restricted Payments made under clauses (2) and (3) and, except to the extent noted above, (4), (6), (7), (8), and (9) of clause (b) shall not be included. The amount of all Restricted Payments (other than cash) shall be the Fair Market Value on the date of the Restricted Payment (or, in the case of a non-cash dividend or distribution, on the date of declaration) of the Senior Notes Indenture; provided that asset(s) or securities proposed to be transferred or issued by Partnership or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. For the purposes of determining compliance with this Section 4.11, if a Restricted Payment meets the criteria of more than one of the categories of Restricted Payments made pursuant to this described in clauses (1) through (9) of clause (7b), the Partnership shall be permitted to classify (or reclassify in whole or in part in its sole discretion) shall not exceed $25.0 million in the aggregate such Restricted Payment in any twelve-month period; or
(8) the purchase or retirement of Class B Common Stock of the Issuer from any Permitted Holder in an aggregate amount not to exceed $10.0 million in any twelve-month period; provided manner that no proceeds from the issuance and sale of Qualified Equity Interests used to make a payment pursuant to clause (2) or (3)(B) above shall increase the Restricted Payments Basketcomplies with this Section 4.11.
Appears in 1 contract
Sources: Indenture (Stonemor Partners Lp)
Limitations on Restricted Payments. (a) The Issuer Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, make any Restricted Payment if at the time of such Restricted Paymentunless:
(1) a no Default or Event of Default shall have occurred and be continuing at the time of or shall occur as a consequence thereof;immediately after giving effect to such Restricted Payment;
(2) immediately after giving effect to such Restricted Payment, the Issuer cannot Company could incur at least $1.00 of additional Indebtedness pursuant to the Coverage Ratio Exception; orException; and
(3) the amount of such Restricted Payment, when added to the aggregate amount of all other Restricted Payments made after the Existing Notes Issue Date (other than Restricted Payments made pursuant to clauses (2Section 4.03(b)(2), (3), (4), (5), (6), (7) or (8) of Section 4.11(b7)), exceeds does not exceed the sum (the “Restricted Payments Basket”) of (without duplication):
(A) $60,000,000, plus
(B) 50% of Consolidated Net Income for the period (taken as one accounting period) commencing on the first day of the fiscal quarter in which the Issue Date occurs from July 1, 2023 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 such Consolidated Net Income shall be a deficit, minus 100% of such aggregate deficit), plus
(BC) 100% of the aggregate net cash proceeds or the Fair Market Value (as determined by the Board of Directors of the Company) of any assets to be used in a Permitted Business received by the Issuer Company either (x) as contributions to the common equity of the Issuer Company after the Existing Notes Issue Date or (y) from the issuance and sale of Qualified Equity Interests after the Existing Notes Issue Date, other than (A) any such proceeds which are used to redeem Notes in accordance with paragraph 6(c) of the Notes or (B) any such proceeds or assets received from a Subsidiary of the Issuer, plus
(CD) the aggregate amount by which Indebtedness incurred by of the Issuer Company or any Restricted Subsidiary subsequent to the Issue Date is reduced on the IssuerCompany’s balance sheet upon the conversion or exchange (other than by a Subsidiary of the IssuerCompany) of Indebtedness into Qualified Equity Interests (less the amount of any cash, or the fair value of assets, distributed by the Issuer Company or any Restricted Subsidiary upon such conversion or exchange), plus
(DE) in the case of the disposition or repayment of or return on any Investment that was treated as a Restricted Payment made after the Existing Notes Issue Date, an amount (to the extent not included in the computation of Consolidated Net Income) equal to the lesser of (i) 100% of the aggregate amount received by the Issuer or any Restricted Subsidiary in cash or other property (valued at the Fair Market Value thereof) as the return of capital with respect to such Investment and (ii) the amount of such Investment that was treated as a Restricted Payment, in either case, less the cost of the disposition of such Investment and net of taxes, plus
(EF) upon a Redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary, the lesser of (i) the Fair Market Value of the IssuerCompany’s proportionate interest in such Subsidiary immediately following such Redesignation, and (ii) the aggregate amount of the IssuerCompany’s Investments in such Subsidiary to the extent such Investments reduced the amount available for subsequent Restricted Payments Basket under this Section 4.03(a)(3)(F) and were not previously repaid or otherwise reduced.
(b) The foregoing provisions of Section 4.03(a) shall not prohibit:
(1) the payment by the Issuer Company or any Restricted Subsidiary of any dividend or similar distribution within 60 days after the date of declaration thereof, if on the date of declaration the payment would have complied with the provisions of this Indenture ;Indenture;
(2) the redemption making of any Equity Interests of the Issuer or any Restricted Subsidiary Payment in exchange for, or out of the proceeds of the substantially concurrent issuance and sale of, Qualified Equity Interests;Interests (other than to the Company or any of its Subsidiaries);
(3) the repurchase, redemption, defeasance or other than pursuant acquisition or retirement for value of Subordinated Indebtedness of the Company or any Restricted Subsidiary in exchange for, or out of the proceeds of the substantially concurrent incurrence of, Refinancing Indebtedness permitted to clause be incurred under Section 4.02 and the other terms of this Indenture;
(8) below4) the repurchase, the redemption redemption, defeasance or other acquisition or retirement for value of Equity Interests of the Issuer Company held by officers, directors or employees or former officers, directors or employees (or their transferees, estates or beneficiaries under their estates), pursuant to any equity subscription agreement, stock option agreement, stockholders’ agreement or similar agreement or benefit plan of any kind or upon their bankruptcy or petition for bankruptcy, death, disability, retirement, severance or termination of employment or service; service; provided that the aggregate cash consideration paid for all such redemptions shall not exceed (A) $5.0 million 5,000,000 during any calendar year (with it being understood, however, that unused amounts being permitted to be paid pursuant to this proviso are available to be used in carried over to subsequent calendar years, so long as the following calendar year, but not in any succeeding calendar year) plus (B) the amount of any net cash proceeds received by or contributed to the Issuer from the issuance and sale after the Issue Date of Qualified Equity Interests of the Issuer to its officers, directors or employees that have not been consideration applied to the payment redemption of Restricted Payments Equity Interests pursuant to this clause (3), plus (CSection 4.03(b)(4) the net cash proceeds of shall in no event exceed $10,000,000 in any “key-man” life insurance policies that have not been applied to the payment of Restricted Payments pursuant to this clause (3);calendar year);
(45) repurchases of Equity Interests that occur or are deemed to occur upon the exercise of stock options or stock appreciation rights if the Equity Interests represents represent a portion of the exercise price thereof;
(5) Restricted Payments pursuant to the Transactions;thereof;
(6) Restricted Payments if after giving effect thereto the Issuer’s Net Leverage Ratio is not greater than 3.0 repurchase of Equity Interests upon vesting of restricted stock, restricted stock units, performance share units or similar equity incentives to 1.0;satisfy tax withholding or similar tax obligations with respect thereto;
(7) other additional Restricted Payments in an aggregate amount, when taken together with all Restricted Payments made pursuant to this Section 4.03(b)(7) and then outstanding, does not exceed the greater of $165,000,000 and 5% of Consolidated Tangible Assets at the time of such Restricted Payment;
(8) the payment of dividends on the Company’s Qualified Equity Interests (other than preferred stock) or the payment of any dividend to any parent of the Company to fund the payment by such parent of a dividend on such entity’s Qualified Equity Interests (other than preferred stock) of up to 6% per annum of the net proceeds received by the Company from any public equity offering after the Issue Date of such Qualified Equity Interests of the Company or contributed to the Company as common equity capital by any parent from any public equity offering of such Qualified Equity Interests of any direct or indirect parent of the Company; or
(9) the payment of dividends on the preferred stock of the Company that is outstanding on the Issue Date (in an amount not to exceed $50.0 million less the amount of any Restricted Payments (as defined in the Senior Notes Indenture) deemed made on or after the Reference Date and on or prior that required pursuant to the terms thereof as in effect on the Issue Date pursuant to Section 4.11(b)(7) of the Senior Notes Indenture; provided that Restricted Payments made pursuant to this clause (7) shall not exceed $25.0 million in the aggregate in any twelve-month period; or
(8) the purchase or retirement of Class B Common Stock of the Issuer from any Permitted Holder in an aggregate amount not to exceed $10.0 million in any twelve-month periodDate); provided that no proceeds from the issuance and sale of Qualified Equity Interests used to make a payment pursuant to clause (2Section 4.03(b)(2) or (3)(B) above shall increase the Restricted Payments Basket, except to the extent the proceeds thereof exceed the amounts used to effect the transactions described therein. The amount of all Restricted Payments (other than cash) will be the Fair Market Value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company or a Restricted Subsidiary of the Company, as the case may be, pursuant to the Restricted Payment.
Appears in 1 contract
Limitations on Restricted Payments. (a) The Issuer shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, make any Restricted Payment if unless at the time of and after giving effect to such Restricted Payment:
(1) a no Default shall have occurred and be continuing or shall occur as a consequence thereof;
(2) immediately after giving effect to such transaction on a pro forma basis, the Issuer cannot could incur $1.00 of additional Indebtedness pursuant to the Coverage Ratio ExceptionSection 4.03(a); orand
(3) the amount of such Restricted Payment, when added to the aggregate amount of all other Restricted Payments made after the Issue Date (other than Restricted Payments made pursuant to clauses Section 4.04(b) (2), (3), (4), ) through (5), (6), ) and (7) or through (8) of Section 4.11(b13)), exceeds would not exceed the sum (the “Restricted Payments Basket”) of (without duplication):
(A) 50% of Consolidated Net Income for the period (taken as one accounting period) commencing on the first day of the fiscal quarter in which the Issue Date occurs from April 1, 2014 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 such Consolidated Net Income shall be a deficit, minus 100% of such aggregate deficit), plus
(B) 100% of the aggregate net cash proceeds or the Fair Market Value of any assets to be used in a Permitted Business or Capital Stock of a Person engaged in a Permitted Business (provided, that, such Person becomes a Restricted Subsidiary of the Issuer or such Person is merged or consolidated into the Issuer or any of the Restricted Subsidiaries) received by the Issuer either (xi) as contributions to the common equity of the Issuer after the Issue Date or (yii) received by the Issuer from the issuance and sale of Qualified Equity Interests after the Issue Date, other than (A) any such net cash proceeds which are used to redeem Notes in accordance with paragraph 6(c) of the Notes or (B) any such proceeds or assets received from an issuance or sale of such Qualified Equity Interests to a Subsidiary of the IssuerIssuer or to an employee stock ownership plan, option plan or similar trust to the extent such sale to an employee stock ownership plan or similar trust is financed by loans from or guaranteed by the Issuer or any Restricted Subsidiary unless such loans have been repaid with cash on or prior to the date of determination, plus
(C) the aggregate amount by which Indebtedness incurred by of the Issuer or any Restricted Subsidiary subsequent to the Issue Date is reduced on the Issuer’s balance sheet upon the conversion or exchange (other than in respect of Indebtedness held by a Subsidiary of the Issuer) of Indebtedness issued subsequent to the Issue Date into Qualified Equity Interests (less the amount of any cash, cash or the fair value of assets, distributed by the Issuer or any Restricted Subsidiary upon such conversion or exchange), plus
(D) in the case of the disposition or repayment of or return on any Investment that was treated as a Restricted Payment made after the Issue Date, an amount (to the extent not included in the computation of Consolidated Net IncomeSection 4.04(a)(3)(A)) equal to the lesser of (i) 100% net reduction of the aggregate amount received by the Issuer or any Restricted Subsidiary in cash or other property (valued at the Fair Market Value thereof) as the return of capital with respect to such Investment and (ii) the amount portion of such Investment that was treated as a Restricted Payment, in either case, less the cost of the disposition of such Investment and net of taxes, plus
(E) upon a Redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary, to the extent not already included in the computation of Section 4.04(a)(3)(A), the lesser of (i) the Fair Market Value of the Issuer’s proportionate interest in such Subsidiary immediately following such Redesignation, and (ii) the aggregate amount of the Issuer’s Investments in such Subsidiary to the extent such Investments reduced the amount available for subsequent Restricted Payments Basket under this Section 4.04(a)(3) and were not previously repaid or otherwise reduced, plus
(F) 100% of the principal amount of, or, if issued at a discount, the accreted value of, any guarantee by the Issuer or any Restricted Subsidiary incurred after the Issue Date that is subsequently released or discharged (other than due to a payment on such guarantee), but only to the extent that such guarantee was treated as a Restricted Payment pursuant to this Section 4.04(a)(3) when made.
(b) The foregoing provisions of Section 4.04(a) shall not prohibit:
(1) the payment by the Issuer or any Restricted Subsidiary of any dividend or similar distribution or the consummation of any irrevocable redemption within 60 days after the date of declaration thereofof such dividend or distribution or the giving of the redemption notice, if on the date of declaration or notice, the dividend or redemption payment would have complied with the provisions of this Indenture Indenture;
(2) the redemption any purchase, repurchase, redemption, defeasance or other acquisition or retirement of any Equity Interests Subordinated Indebtedness of the Issuer or any Restricted Subsidiary in Guarantor made by exchange for, or out of the proceeds of the substantially concurrent issuance and sale of, Qualified Equity InterestsSubordinated Indebtedness that constitutes Refinancing Indebtedness;
(3) the repurchase, redemption, defeasance or other than pursuant to clause (8) below, the redemption acquisition or retirement for value of Equity Interests of the Issuer held by officers, directors or employees or former officers, directors or employees (or their transferees, estates or beneficiaries under their estates)) of the Issuer or any Restricted Subsidiary, upon their deathpursuant to any equity subscription agreement, disabilitystock option agreement, retirement, severance shareholders’ agreement or termination similar agreement or benefit plan of employment or serviceany kind; provided that the aggregate cash consideration paid for all such redemptions payments shall not exceed (A) $5.0 2.5 million during any calendar year (with it being understood, however, that unused amounts being permitted to be paid pursuant to this proviso are available to be used in carried over to subsequent calendar years, so long as the following calendar year, but not in any succeeding calendar year) plus (B) the amount of any net cash proceeds received by or contributed to the Issuer from the issuance and sale after the Issue Date of Qualified Equity Interests of the Issuer to its officers, directors or employees that have not been consideration applied to the payment repurchase, redemption, defeasance or other acquisition or retirement for value of Restricted Payments Equity Interests pursuant to this clause (3), plus (CSection 4.04(b)(3) the net cash proceeds of shall in no event exceed $5.0 million in any “key-man” life insurance policies that have not been applied to the payment of Restricted Payments pursuant to this clause (3calendar year);
(4) repurchases of Equity Interests that occur or are deemed to occur upon the exercise of stock options or stock appreciation rights if the Equity Interests represents represent a portion of the exercise price thereof;
(5) Restricted Payments pursuant the repurchase of Equity Interests upon vesting of restricted stock, restricted stock units, performance share units or similar equity incentives to the Transactionssatisfy tax withholding or similar tax obligations with respect thereto;
(6) Restricted Payments if after giving effect thereto the payment of dividends on the Issuer’s Net Leverage Ratio is not greater Qualified Equity Interests (other than 3.0 preferred stock) (or the payment of any dividend to 1.0any parent of the Issuer to fund the payment by such parent of a dividend on such entity’s Qualified Equity Interests (other than preferred stock)) of up to 6% per annum of the net proceeds received by the Issuer from any public equity offering after the Issuer Date of such Qualified Equity Interests of the Issuer or contributed to the Issuer as common equity capital by any parent from any public equity offering of such Qualified Equity Interests of any direct or indirect parent of the Issuer;
(7) other Restricted Payments in an amount not to exceed $50.0 million less the amount of any Restricted Payments (as defined in the Senior Notes Indenture) deemed made on or after the Reference Date and on or prior to the Issue Date pursuant to Section 4.11(b)(7) of the Senior Notes Indenture; provided that aggregate amount, when taken together with all Restricted Payments made pursuant to this clause (7Section 4.04(b)(7) shall and then outstanding, does not exceed $25.0 million in the aggregate in any twelve-month period; or10.0 million;
(8) the purchase any purchase, repurchase, redemption, defeasance or other acquisition or retirement of Class B Common Stock Equity Interests, Disqualified Equity Interests or Subordinated Indebtedness of the Issuer or any Guarantor made by exchange for, or out of the proceeds of the substantially concurrent sale of, Equity Interests of the Issuer (other than Disqualified Equity Interests and other than Equity Interests issued or sold to a Subsidiary or an employee stock ownership plan or similar trust to the extent such sale to an employee stock ownership plan or similar trust is financed by loans from or guaranteed by the Issuer or any Permitted Holder Restricted Subsidiary unless such loans have been repaid with cash on or prior to the date of determination); provided, however, that the net cash proceeds from such sale of Equity Interests will be excluded from Section 4.04(a)(3)(B) above to the extent so applied;
(9) any purchase, repurchase, redemption, defeasance or other acquisition or retirement of Disqualified Equity Interests of the Issuer or a Restricted Subsidiary made by exchange for or out of the proceeds of the substantially concurrent sale of Disqualified Equity Interests of the Issuer or such Restricted Subsidiary, as the case may be, so long as such refinancing Disqualified Equity Interests constitute Refinancing Indebtedness;
(10) any purchase, repurchase, redemption, defeasance or other acquisition or retirement for value of any Subordinated Indebtedness (a) at a purchase price not greater than 101% of the principal amount of such Subordinated Indebtedness in an aggregate the event of a Change of Control in accordance with provisions similar to Section 4.09 or (b) at a purchase price not greater than 100% of the principal amount not thereof in accordance with provisions similar to exceed $10.0 million in any twelve-month periodSection 4.06; provided that no proceeds from that, prior to or simultaneously with such purchase, repurchase, redemption, defeasance or other acquisition or retirement, the Issuer has made the Change of Control Offer or Asset Sale Offer, as applicable, as provided in such covenant with respect to the Securities and has completed the repurchase or redemption of all Securities validly tendered for payment in connection with such Change of Control Offer or Asset Sale Offer;
(11) cash payments in lieu of the issuance and sale of Qualified fractional shares of the Issuer’s Equity Interests used upon the exercise, conversion or exchange of any stock options, warrants, other rights to make a payment purchase Equity Interests or other convertible or exchangeable securities or any other transaction otherwise permitted by this Section 4.04;
(12) payments or distributions to holders of Equity Interests of the Issuer or any of the Restricted Subsidiaries pursuant to clause appraisal or dissenter rights required under applicable law or pursuant to a court order in connection with any merger, amalgamation, arrangement, consolidation or sale, assignment, conveyance, transfer, lease or other disposition of assets; and
(213) the declaration and payment of regularly scheduled or accrued dividends to holders of any class or series of Disqualified Equity Interests of the Issuer or preferred stock of any Restricted Subsidiary issued on or after the Issue Date in accordance with Section 4.03 to the extent such dividends are included in the definition of “Consolidated Interest Expense.”; The amount of all Restricted Payments (other than cash) will be the Fair Market Value on the date of the Restricted Payment of the asset(s) or (3)(B) above shall increase securities proposed to be transferred or issued by the Issuer or a Restricted Subsidiary, as the case may be, pursuant to the Restricted Payments BasketPayment. The amount of any Restricted Payment paid in cash shall be its face amount.
Appears in 1 contract
Limitations on Restricted Payments. (a) The Issuer shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, make any Restricted Payment if at the time of such Restricted Payment:
(1) a Default shall have occurred and be continuing or shall occur as a consequence thereof;
(2a) the Issuer canis not able to incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) pursuant to the Coverage Ratio ExceptionException or (b) the Consolidated Leverage Ratio exceeds 3.00 to 1.00; or
(3) the amount of such Restricted Payment, when added to the aggregate amount of all other Restricted Payments made after the Issue Date (other than Restricted Payments made pursuant to clauses (2), (3), (4), (5), (6), (7) or (8) 5) of clause (b) of this Section 4.11(b)4.11), exceeds the sum (the “Restricted Payments Basket”) of (without duplication):
(A) 50% of Consolidated Net Income for the period (taken as one accounting period) commencing on the first day of the fiscal quarter in 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 such Consolidated Net Income shall be a deficit, minus 100% of such aggregate deficit), plus
(B) 100% of (A) (i) the aggregate net cash proceeds and (ii) the Fair Market Value of (x) marketable securities (other than marketable securities of the Issuer), (y) Equity Interests of a Person (other than the Issuer or an Affiliate of the Issuer) engaged in a Permitted Business and (z) other assets used in any Permitted Business, in the case of clauses (i) and (ii), received by the Issuer either (x) as contributions to the common equity of the Issuer after since the Issue Date as a contribution to its common equity capital or (y) from the issuance and issue or sale of Qualified Equity Interests after of the Issue Date, Issuer or from the issue or sale of convertible or exchangeable Disqualified Equity Interests or convertible or exchangeable debt securities of the Issuer that have been converted into or exchanged for such Qualified Equity Interests (other than (A) any such proceeds which are used Equity Interests or debt securities sold to redeem Notes in accordance with paragraph 6(c) of the Notes or (B) any such proceeds or assets received from a Subsidiary of the Issuer), and (B) the aggregate net cash proceeds, if any, received by the Issuer or any of its Restricted Subsidiaries upon any conversion or exchange described in clause (A) above, plus
(C) 100% of (A) the aggregate amount by which Indebtedness incurred by (other than any Subordinated Indebtedness) of the Issuer or any Restricted Subsidiary subsequent to the Issue Date is reduced on the Issuer’s consolidated balance sheet upon the conversion or exchange (other than by a Subsidiary after the Issue Date of the Issuer) any such Indebtedness into or for Qualified Equity Interests of the Issuer and (less B) the amount of any cashaggregate net cash proceeds, or the fair value of assetsif any, distributed received by the Issuer or any of its Restricted Subsidiary Subsidiaries upon such any conversion or exchange)exchange described in clause (A) above, plus
(D) in the case of the disposition or repayment of or return on any Investment that was treated as a Restricted Payment made after the Issue Date, an amount (to the extent not included in the computation of Consolidated Net Income) equal to the lesser of (i) 100% of the aggregate amount received by the Issuer or any Restricted Subsidiary in cash or other property (valued at the Fair Market Value thereof) as the return of capital with respect to such Investment and (ii) the amount of such Investment that was treated as a Restricted Payment, in either case, less the cost of the disposition of such Investment and net of taxes, plus
(E) upon a Redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary, the lesser of (i) the Fair Market Value of the Issuer’s proportionate interest in such Subsidiary immediately following such Redesignation, and (ii) the aggregate amount of the Issuer’s Investments in such Subsidiary to the extent such Investments reduced the Restricted Payments Basket and were not previously repaid or otherwise reduced.
(b) The foregoing Notwithstanding the foregoing, the provisions shall set forth in clause (a) of this Section 4.11 will not prohibit:
(1) the payment by of (a) any dividend or redemption payment or the Issuer or any Restricted Subsidiary making of any dividend distribution within 60 days after the date of declaration thereofthereof if, if on the date of declaration declaration, the payment dividend, redemption or distribution payment, as the case may be, would have complied with the provisions of this Indenture or (b) any dividend or similar distribution by a Restricted Subsidiary of the Issuer to the holders of its Equity Interests on a pro rata basis;
(2) the redemption or acquisition of any Equity Interests of the Issuer or any Restricted Subsidiary in exchange for, or out of the proceeds of the substantially concurrent issuance and sale of, Qualified Equity Interests;
(3) the purchase, repurchase, redemption, defeasance or other than acquisition or retirement for value of Subordinated Indebtedness of the Issuer or any Restricted Subsidiary (a) in exchange for, or out of the proceeds of the substantially concurrent issuance and sale of, Qualified Equity Interests, (b) in exchange for, or out of the proceeds of the substantially concurrent incurrence of, Refinancing Indebtedness permitted to be incurred under Section 4.10 and the other terms of this Indenture or (c) upon a Change of Control or in connection with an Asset Sale to the extent required by the agreement governing such Subordinated Indebtedness but only if the Issuer shall have complied with Section 4.12 and Section 4.15 and purchased all Notes validly tendered pursuant to clause the relevant offer prior to redeeming such Subordinated Indebtedness;
(8) below4) the redemption, the redemption repurchase or other acquisition or retirement for value of Equity Interests of the Issuer held by officers, directors or employees or former officers, directors or employees (or their transferees, estates or beneficiaries under their estates), either (x) upon their any such individual’s death, disability, retirement, severance or termination of employment or serviceservice or (y) pursuant to any equity subscription agreement, stock option agreement, stockholders’ agreement or similar agreement; provided provided, in any case, that the aggregate cash consideration paid for all such redemptions redemptions, repurchases or other acquisitions or retirements shall not exceed (A) $5.0 million during any calendar year (with unused amounts being available to be used in the following calendar year, but not in any calendar year being carried forward to the next succeeding calendar year) plus (B) the amount of any net cash proceeds received by or contributed to the Issuer from the issuance and sale after the Issue Date of Qualified Equity Interests of the Issuer to its officers, directors or employees that have not been applied to the payment of Restricted Payments pursuant to this clause (34), plus (C) the net cash proceeds of any “key-man” life insurance policies that have not been applied to the payment of Restricted Payments pursuant to this clause (34);
(4a) repurchases repurchases, redemptions or other acquisitions or retirements for value of Equity Interests that occur or are deemed to occur upon the exercise of stock options if the options, warrants, rights to acquire Equity Interests represents or other convertible securities to the extent such Equity Interests represent a portion of the exercise or exchange price thereof;
thereof and (5b) Restricted Payments pursuant to the Transactionsany repurchases, redemptions or other acquisitions or retirements for value of Equity Interests made in lieu of withholding taxes in connection with any exercise or exchange of stock options, warrants or other similar rights;
(6) Restricted Payments if after giving effect thereto dividends on Preferred Stock or Disqualified Equity Interests issued in compliance with Section 4.10 to the Issuer’s Net Leverage Ratio is not greater than 3.0 to 1.0extent such dividends are included in the definition of Consolidated Interest Expense;
(7) other Restricted Payments the payment of cash in an amount not lieu of fractional Equity Interests; payments or distributions to exceed $50.0 million less the amount of any Restricted Payments (as defined in the Senior Notes Indenture) deemed made on or after the Reference Date and on or prior to the Issue Date dissenting stockholders pursuant to Section 4.11(b)(7) applicable law in connection with a merger, consolidation or transfer of assets that complies with the Senior Notes Indenture; provided that Restricted Payments made pursuant to this clause (7) shall not exceed $25.0 million in the aggregate in any twelve-month periodprovisions of Article 5; or
(8) the purchase or retirement payment of Class B Common Stock of the Issuer other Restricted Payments from any Permitted Holder time to time in an aggregate amount not to exceed (a) $10.0 million in any twelve-month periodfiscal year or (b) $25.0 million in aggregate amount since the Issue Date; provided that (a) in the case of any Restricted Payment pursuant to clauses (3), (4) or (9) above, no proceeds from the Default shall have occurred and be continuing or occur as a consequence thereof and (b) no issuance and sale of Qualified Equity Interests used to make a payment pursuant to clause clauses (2), (3) or (3)(B4)(B) above shall increase the Restricted Payments Basket.
Appears in 1 contract
Limitations on Restricted Payments. (a) The Issuer shall will not, and shall will not permit any Restricted Subsidiary to, directly or indirectly, make any Restricted Payment if at the time of such Restricted Payment:
(1) a Default shall have occurred and be continuing or shall occur as a consequence thereof;
(2) the Issuer cannot incur $1.00 of additional Indebtedness pursuant to the Coverage Ratio Exception; or
(3) the amount of such Restricted Payment, when added to the aggregate amount of all other Restricted Payments made after the Issue Date (other than Restricted Payments made pursuant to clauses (2) through (7), (38) (with respect to non-cash dividends only), (410), (5), 11) and (6), (712) or (8) of Section 4.11(b)4.08(b), exceeds the sum (the “Restricted Payments Basket”) of (without duplication):
(Ai) 50% of Consolidated Net Income for the period (taken as one accounting period) commencing on the first (1st) day of the fiscal quarter in 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 such Consolidated Net Income shall be a deficit, minus 100% of such aggregate deficit), plus
(Bii) 100% of the aggregate net proceeds, including cash proceeds and the Fair Market Value of the equity of a Person or of assets used in or constituting a line of business, in each case which becomes or becomes owned by a Restricted Subsidiary, received by the Issuer either (x) as contributions to the common equity of the Issuer after the Issue Date or (y) from the issuance and sale of Qualified Equity Interests after the Issue Date, other than (A) any such proceeds which are used to redeem Notes in accordance with paragraph 6(c) Section 6 of the Notes or (B) any such proceeds or assets received from a Subsidiary of the IssuerNotes, plus
(C) the aggregate amount by which Indebtedness incurred by the Issuer or any Restricted Subsidiary subsequent to the Issue Date is reduced on the Issuer’s balance sheet upon the conversion or exchange (other than by a Subsidiary of the Issuer) into Qualified Equity Interests (less the amount of any cash, or the fair value of assets, distributed by the Issuer or any Restricted Subsidiary upon such conversion or exchange), plus
(D) in the case of the disposition or repayment of or return on any Investment that was treated as a Restricted Payment made after the Issue Date, an amount (to the extent not included in the computation of Consolidated Net Income) equal to the lesser of (i) 100% of the aggregate amount received by the Issuer or any Restricted Subsidiary in cash or other property (valued at the Fair Market Value thereof) as the return of capital with respect to such Investment and (ii) the amount of such Investment that was treated as a Restricted Payment, in either case, less the cost of the disposition of such Investment and net of taxes, plus
(E) upon a Redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary, the lesser of (i) the Fair Market Value of the Issuer’s proportionate interest in such Subsidiary immediately following such Redesignation, and (ii) the aggregate amount of the Issuer’s Investments in such Subsidiary to the extent such Investments reduced the Restricted Payments Basket and were not previously repaid or otherwise reduced.
(b) The foregoing provisions shall not prohibit:
(1) the payment by the Issuer or any Restricted Subsidiary of any dividend within 60 days after the date of declaration thereof, if on the date of declaration the payment would have complied with the provisions of this Indenture ;
(2) the redemption of any Equity Interests of the Issuer or any Restricted Subsidiary in exchange for, or out of the proceeds of the substantially concurrent issuance and sale of, Qualified Equity Interests;
(3) other than pursuant to clause (8) below, the redemption of Equity Interests of the Issuer held by officers, directors or employees or former officers, directors or employees (or their transferees, estates or beneficiaries under their estates), upon their death, disability, retirement, severance or termination of employment or service; provided that the aggregate cash consideration paid for all such redemptions shall not exceed (A) $5.0 million during any calendar year (with unused amounts being available to be used in the following calendar year, but not in any succeeding calendar year) plus (B) the amount of any net cash proceeds received by or contributed Issuer delivers to the Issuer from the issuance and sale after the Issue Date of Qualified Equity Interests of the Issuer to its officers, directors or employees that have not been applied to the payment of Restricted Payments pursuant to this clause (3), plus (C) the net cash proceeds of any “key-man” life insurance policies that have not been applied to the payment of Restricted Payments pursuant to this clause (3);
(4) repurchases of Equity Interests that occur or are deemed to occur upon the exercise of stock options if the Equity Interests represents a portion of the exercise price thereof;
(5) Restricted Payments pursuant to the Transactions;
(6) Restricted Payments if after giving effect thereto the Issuer’s Net Leverage Ratio is not greater than 3.0 to 1.0;
(7) other Restricted Payments in an amount not to exceed $50.0 million less the amount of any Restricted Payments (as defined in the Senior Notes Indenture) deemed made on or after the Reference Date and on or prior to the Issue Date pursuant to Section 4.11(b)(7) of the Senior Notes Indenture; provided that Restricted Payments made pursuant to this clause (7) shall not exceed $25.0 million in the aggregate in any twelve-month period; or
(8) the purchase or retirement of Class B Common Stock of the Issuer from any Permitted Holder in an aggregate amount not to exceed $10.0 million in any twelve-month period; provided that no proceeds from the issuance and sale of Qualified Equity Interests used to make a payment pursuant to clause (2) or (3)(B) above shall increase the Restricted Payments Basket.Trustee:
Appears in 1 contract
Sources: Supplemental Indenture (Alere Inc.)
Limitations on Restricted Payments. (a) The Issuer Company shall not, and shall not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly: (all such payments and other actions set forth in clauses (i) through (iv) above being collectively referred to as “Restricted Payments”), make any unless, at the time of and after giving effect to such Restricted Payment if Payment: no Default or Event of Default has occurred and is continuing or would occur as a consequence of such Restricted Payment;
18.5.6.1 the Company would, at the time of such Restricted Payment:
(1) a Default shall 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 occurred and be continuing or shall occur as a consequence thereof;
(2) the Issuer cannot been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio Exceptiontest set forth in Section 4.10(a); orand
(3) the amount of 18.5.6.2 such Restricted Payment, when added to together with the aggregate amount of all other Restricted Payments made after by the Issue Date Company and its Restricted Subsidiaries since the date of this Indenture (other than excluding Restricted Payments made pursuant to permitted by clauses (2), (3), (4), (5), (6), (7), (8), (9), (8), (9), (10) or and (8) 14) of Section 4.11(b)), exceeds is not greater than the sum (the “Restricted Payments Basket”) of (sum, without duplication):
(A) , of: 50% of the Consolidated Net Income of the Company for the period (taken as one accounting period) commencing on from October 1, 2006 to the first day end of the Company’s most recently ended fiscal quarter in 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 internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income shall be for such period is a deficit, minus less 100% of such aggregate deficit), ; plus
(Bi) 100% of the aggregate net cash proceeds received by the Issuer either and (x) as contributions to the common equity of the Issuer after the Issue Date or (y) from the issuance and sale of Qualified Equity Interests after the Issue Date, other than (A) any such proceeds which are used to redeem Notes in accordance with paragraph 6(c) of the Notes or (B) any such proceeds or assets received from a Subsidiary of the Issuer, plus
(C) the aggregate amount by which Indebtedness incurred by the Issuer or any Restricted Subsidiary subsequent to the Issue Date is reduced on the Issuer’s balance sheet upon the conversion or exchange (other than by a Subsidiary of the Issuer) into Qualified Equity Interests (less the amount of any cash, or the fair value of assets, distributed by the Issuer or any Restricted Subsidiary upon such conversion or exchange), plus
(D) in the case of the disposition or repayment of or return on any Investment that was treated as a Restricted Payment made after the Issue Date, an amount (to the extent not included in the computation of Consolidated Net Income) equal to the lesser of (iii) 100% of the aggregate amount received by the Issuer or any Restricted Subsidiary in cash or other property (valued at the Fair Market Value thereof) as the return of capital with respect to such Investment and (ii) the amount of such Investment that was treated as a Restricted Payment, in either case, less the cost of the disposition of such Investment and net of taxes, plus
(E) upon a Redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary, the lesser of (i) the Fair Market Value of the Issuer’s proportionate interest property and assets other than cash, in such Subsidiary immediately following such Redesignationeach case, and (ii) the aggregate amount of the Issuer’s Investments in such Subsidiary to the extent such Investments reduced the Restricted Payments Basket and were not previously repaid or otherwise reduced.
(b) The foregoing provisions shall not prohibit:
(1) the payment received by the Issuer or any Restricted Subsidiary of any dividend within 60 days Company after the date of declaration thereof, if on the date of declaration the payment would have complied with the provisions of this Indenture ;
as a contribution to its equity capital or from the issue or sale (2) the redemption of any Equity Interests other than to a Restricted Subsidiary of the Issuer or any Restricted Subsidiary in exchange for, or out Company) of the proceeds of the substantially concurrent issuance and sale of, Qualified Equity Interests;
(3) other than pursuant to clause (8) below, the redemption of Equity Interests of the Issuer held by officers, directors or employees or former officers, directors or employees (or their transferees, estates or beneficiaries under their estates), upon their death, disability, retirement, severance or termination of employment or service; provided that the aggregate cash consideration paid for all such redemptions shall not exceed (A) $5.0 million during any calendar year (with unused amounts being available to be used in the following calendar year, but not in any succeeding calendar year) plus (B) the amount of any net cash proceeds received by or contributed to the Issuer from the issuance and sale after the Issue Date of Qualified Equity Interests of the Issuer to its officers, directors or employees that have not been applied to the payment of Restricted Payments pursuant to this clause (3), plus (C) the net cash proceeds of any “key-man” life insurance policies that have not been applied to the payment of Restricted Payments pursuant to this clause (3);
(4) repurchases of Equity Interests that occur or are deemed to occur including upon the exercise of stock options if or warrants, or from the Equity Interests represents issue or sale (other than to a portion Restricted Subsidiary of the exercise price thereof;
(5Company) of convertible or exchangeable Disqualified Stock or convertible or exchangeable debt securities of the Company that have been converted into or exchanged for Qualified Equity Interests, together with the aggregate cash and Cash Equivalents received by the Company or any of its Restricted Payments pursuant Subsidiaries at the time of such conversion or exchange; plus to the Transactions;
extent that any Restricted Investment that was made after the date of this Indenture is sold or otherwise liquidated or repaid for cash or Cash Equivalents, the return of capital in cash or Cash Equivalents with respect to such Restricted Investment (6) Restricted Payments if after giving effect thereto the Issuer’s Net Leverage Ratio is not greater than 3.0 to 1.0;
(7) other Restricted Payments in an amount not to exceed $50.0 million less the cost of disposition, if any); plus to the extent that any Unrestricted Subsidiary of the Company is redesignated as a Restricted Subsidiary after the date of this Indenture or is merged into the Company or a Restricted Subsidiary or transfers all or substantially all its assets of the Company or a Restricted Subsidiary, the Fair Market Value of the Investment of the Company and its Restricted Subsidiaries in such Subsidiary (or the assets so transferred, if applicable) as of the date of such redesignation (other than to the extent of such Investment in such Unrestricted Subsidiary that was made as a Permitted Investment); plus any amount which previously treated as a Restricted Payment on account of any guarantee entered into by the Company or a Restricted Payments (as defined in Subsidiary upon the Senior Notes Indenture) deemed made on or after the Reference Date and on or prior to the Issue Date pursuant to Section 4.11(b)(7) unconditional release of the Senior Notes Indenture; provided that Restricted Payments made pursuant to this clause (7) shall not exceed $25.0 million in the aggregate in any twelve-month period; or
(8) the purchase or retirement of Class B Common Stock of the Issuer from any Permitted Holder in an aggregate amount not to exceed $10.0 million in any twelve-month period; provided that no proceeds from the issuance and sale of Qualified Equity Interests used to make a payment pursuant to clause (2) or (3)(B) above shall increase the Restricted Payments Basketsuch guarantee.
Appears in 1 contract
Limitations on Restricted Payments. (a) The Issuer Company and the Guarantors shall not, and neither the Company nor the Guarantors shall not permit any Restricted Subsidiary of its Subsidiaries to, directly or indirectly, make any Restricted Payment if at the time of if, after giving effect to such Restricted Payment:
Payment on a pro forma basis, (1) a Default or an Event of Default shall have occurred and be continuing or shall occur as a consequence thereof;
continuing, (2) the Issuer canCompany is not permitted to incur at least $1.00 of additional Indebtedness pursuant to the Coverage Debt Incurrence Ratio Exception; or
test in Section 4.7 hereof, or (3) the amount of such Restricted Payment, when added to the aggregate amount of all other Restricted Payments made by the Company and its Subsidiaries, including after giving effect to such proposed Restricted Payment, on and after the Issue Date Date, would exceed, without duplication, the sum of (other than Restricted Payments made pursuant to clauses (2)a) $25,000,000, plus, (3), (4), (5), (6), (7) or (8) of Section 4.11(b)), exceeds the sum (the “Restricted Payments Basket”) of (without duplication):
(Ab) 50% of the aggregate Consolidated Net Income of the Company for the period (taken as one accounting period) ), commencing on the first day of the fiscal quarter in which the Issue Date occurs April 1, 2001, to and including the last day of the fiscal quarter ended immediately prior to the date of each such calculation for which consolidated financial statements of the Company are available (or, if such in the event Consolidated Net Income shall be for such period is a deficit, then minus 100% of such aggregate deficit), plus
plus (Bc) 100% of the aggregate net cash proceeds Net Cash Proceeds received by the Issuer either Company from the sale of its Qualified Capital Stock or of its debt securities that have been converted into Qualified Capital Stock (other than (i) to one of its Subsidiaries and (ii) to the extent applied in connection with clauses (x) as contributions to the common equity of the Issuer after the Issue Date or and (y) from in the issuance and sale of Qualified Equity Interests next succeeding paragraph), after the Issue Date, other than plus (Ad) any such proceeds which are used to redeem Notes in accordance with paragraph 6(c) of the Notes or (B) any such proceeds or assets received from a Subsidiary of the Issuer, plus
(C) the aggregate amount by which Indebtedness incurred by the Issuer or extent that any Restricted Subsidiary subsequent to Investment that was made after the Issue Date is reduced on the Issuer’s balance sheet upon the conversion or exchange (other than by a Subsidiary of the Issuer) into Qualified Equity Interests (less the amount of any cash, or the fair value of assets, distributed by the Issuer or any Restricted Subsidiary upon such conversion or exchange), plus
(D) in the case of the disposition or repayment of or return on any Investment that was treated as a Restricted Payment made after the Issue Date, an amount (to the extent not included in the computation of Consolidated Net Income) equal to the lesser of (i) 100% of the aggregate amount received by the Issuer or any Restricted Subsidiary in sold for cash or other property (valued at the Fair Market Value thereof) as the return of capital with respect to such Investment and (ii) the amount of such Investment that was treated as a Restricted Payment, in either case, less the cost of the disposition of such Investment and net of taxes, plus
(E) upon a Redesignation of an Unrestricted Subsidiary as a Restricted Subsidiaryotherwise liquidated or repaid for cash, the lesser of (i) the Fair Market Value cash return of capital with respect to such Restricted Investment (less the Issuer’s proportionate interest in such Subsidiary immediately following such Redesignationcost of disposition, if any) and (ii) the aggregate initial amount of such Restricted Investment, plus (e) 50% of any dividends received by the Issuer’s Investments in such Company or a Guarantor after the Issue Date from an Unrestricted Subsidiary to the extent such Investments reduced the Restricted Payments Basket and were not previously repaid or otherwise reduced.
(b) included in Consolidated Net Income. The foregoing provisions shall clauses of the immediately preceding paragraph of this Section 4.9, however, will not prohibit:
: (1x) the redemption, repurchase, retirement or other acquisition of any Equity Interests of the Company in exchange for, or out of the proceeds of, the substantially concurrent sale (other than to a Subsidiary of the Company) of the Company’s Qualified Capital Stock; (y) the defeasance, redemption or repurchase of Subordinated Indebtedness with the Net Cash Proceeds from an incurrence of Refinancing Indebtedness or the substantially concurrent sale (other than to a Subsidiary of the Company) (or in exchange for) of Qualified Capital Stock; or (z) the payment by the Issuer or any Restricted Subsidiary of any dividend within 60 days after the date of its declaration thereof, if such dividend could have been made on the date of such declaration the payment would have complied in compliance with the provisions of this Indenture ;
(2) the redemption foregoing provisions. The full amount of any Equity Interests Restricted Payment made pursuant to the foregoing clause (z) (but not pursuant to clauses (x) and (y)) of the Issuer or any immediately preceding sentence, however, will be counted as Restricted Subsidiary in exchange for, or out Payments made for purposes of the proceeds calculation of the substantially concurrent issuance and sale of, Qualified Equity Interests;
aggregate amount of Restricted Payments available to be made referred to in clause (3) other than pursuant to clause (8) below, the redemption of Equity Interests of the Issuer held by officersfirst paragraph of this Section 4.9. For purposes of this Section 4.9, directors or employees or former officers, directors or employees (or their transferees, estates or beneficiaries under their estates), upon their death, disability, retirement, severance or termination of employment or service; provided that the aggregate cash consideration paid for all such redemptions shall not exceed (A) $5.0 million during any calendar year (with unused amounts being available to be used in the following calendar year, but not in any succeeding calendar year) plus (B) the amount of any net cash proceeds received by or contributed to the Issuer from the issuance and sale after the Issue Date of Qualified Equity Interests of the Issuer to its officers, directors or employees that have not been applied to the payment of Restricted Payments pursuant to this clause (3), plus (C) the net cash proceeds of any “key-man” life insurance policies that have not been applied to the payment of Restricted Payments pursuant to this clause (3);
(4) repurchases of Equity Interests that occur or are deemed to occur upon the exercise of stock options if the Equity Interests represents a portion of the exercise price thereof;
(5) Restricted Payments pursuant to the Transactions;
(6) Restricted Payments if after giving effect thereto the Issuer’s Net Leverage Ratio is not greater than 3.0 to 1.0;
(7) other Restricted Payments in an amount not to exceed $50.0 million less the amount of any Restricted Payments (Payment made or returned, if other than in cash, shall be the fair market value thereof, as defined determined in the Senior Notes Indenture) deemed made on or after the Reference Date and on or prior to the Issue Date pursuant to Section 4.11(b)(7) good faith reasonable judgment of the Senior Notes Indenture; provided that Restricted Payments Company’s Board of Directors, unless stated otherwise, at the time made pursuant to this clause (7) shall not exceed $25.0 million in the aggregate in any twelve-month period; or
(8) the purchase or retirement of Class B Common Stock of the Issuer from any Permitted Holder in an aggregate amount not to exceed $10.0 million in any twelve-month period; provided that no proceeds from the issuance and sale of Qualified Equity Interests used to make a payment pursuant to clause (2) or (3)(B) above shall increase the Restricted Payments Basketreturned, as applicable.
Appears in 1 contract
Limitations on Restricted Payments. (a) The Issuer shall Company will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, make any Restricted Payment if at the time of such Restricted Payment:
(1i) a Default or Event of Default shall have occurred and be continuing or shall occur as a consequence thereof;
(2ii) the Issuer cannot Company would be unable to incur an additional $1.00 of additional Senior Indebtedness pursuant to under the Coverage Ratio Exceptionprovisions of Section 5.04(a); or
(3iii) the amount of such Restricted Payment, when added to the aggregate amount of all other Restricted Payments (other than those made pursuant to the provisions of clause (A), (C), (D), (E) or (G) of Section 5.06(b)) made after the Issue Date (other than Restricted Payments made pursuant to clauses (2), (3), (4), (5), (6), (7) or (8) date of Section 4.11(b))this Indenture, exceeds the sum of: (the “Restricted Payments Basket”) of (without duplication):
(Aa) 50% of the Company's Consolidated Net Income for accrued during the period (taken as one accounting period) commencing on the first day of the fiscal quarter in which the Issue Date occurs to and including the last day of the fiscal quarter ended immediately prior to from the date of such calculation this Indenture to the end of the Company's most recently ended fiscal quarter for which consolidated financial statements are available results have been reported at the time of such Restricted Payment (or, if such aggregate Consolidated Net Income shall be a deficit, minus 100% of such aggregate deficit), plus
; plus (B) 100% of the aggregate net cash proceeds received by the Issuer either (x) as contributions to the common equity of the Issuer after the Issue Date or (y) from the issuance and sale of Qualified Equity Interests after the Issue Date, other than (A) any such proceeds which are used to redeem Notes in accordance with paragraph 6(c) of the Notes or (B) any such proceeds or assets received from a Subsidiary of the Issuer, plus
(Cb) the aggregate amount by which Indebtedness incurred of Net Reductions in Investments attributable to Designated Investments made by the Issuer Company or any Restricted Subsidiary subsequent to the Issue Date is reduced on date of this Indenture; provided, however, that (1) the Issuer’s balance sheet upon the conversion or exchange (other than by a Subsidiary Net Reductions in Investments attributable to any Designated Investment for purposes of the Issuer) into Qualified Equity Interests (less this calculation shall not exceed the amount of any cashsuch Designated Investment, or the fair value of assets, distributed by the Issuer or any Restricted Subsidiary upon such conversion or exchange), plus
(D2) in the case of the disposition or repayment of or return on any Investment that was treated as a Restricted Payment made after the Issue Date, an amount (to the extent not that cash or Cash Equivalents included in any Net Reductions in Investments pursuant to the definition thereof have been or will be included in the computation of Consolidated Net IncomeIncome for purposes of determining the ability of the Company or any of its Restricted Subsidiaries to make Restricted Payments under clause (iii)(a) equal of this Section 5.06(a), such cash or Cash Equivalents shall not also be included in computing Net Reductions in Investments for purposes of this clause (iii)(b) and (3) the Company will not be permitted to the lesser of make any Restricted Payment described in clause (i) 100% of the aggregate amount received by the Issuer or any Restricted Subsidiary in cash or other property (valued at the Fair Market Value thereof) as the return of capital with respect to such Investment and (ii) the amount of such Investment that was treated as a Restricted Payment, in either case, less the cost of the disposition definition of such Investment and net of taxes, plus
(E) upon a Redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary, the lesser of (i) the Fair Market Value of the Issuer’s proportionate interest Payment from any Net Reductions in such Subsidiary immediately following such Redesignation, and (ii) the aggregate amount of the Issuer’s Investments in such Subsidiary to the extent such Investments reduced the Restricted Payments Basket and were not previously repaid or otherwise reducedInvestments.
(b) The foregoing Notwithstanding the foregoing, the provisions shall of clauses (ii) and (iii) of Section 5.06(a) will not prohibitprevent:
(1A) the payment by the Issuer Company or any Wholly Owned Restricted Subsidiary from making Investments in Subsidiaries, in an aggregate amount not to exceed $4,000,000, pursuant to contractual obligations in existence on the date of this Indenture or directly related to projects in existence on the date of this Indenture;
(B) the Company from paying any dividend within 60 days after the date of its declaration thereof, if such dividend could have been paid on the date of its declaration the payment would have complied with the provisions without violation of this Indenture covenant;
(2C) the redemption Company from purchasing or redeeming and retiring any shares of any Equity Interests Capital Stock of the Issuer Company, and paying accrued and unpaid dividends on such shares at the time of such repurchase or any Restricted Subsidiary redemption, in exchange for, or out of the net proceeds of the a substantially concurrent issuance and sale (other than to a Subsidiary of the Company or an employee stock ownership plan) of, shares of Qualified Equity InterestsCapital Stock of the Company;
(3) other than pursuant to clause (8) below, the redemption of Equity Interests of the Issuer held by officers, directors or employees or former officers, directors or employees (or their transferees, estates or beneficiaries under their estates), upon their death, disability, retirement, severance or termination of employment or service; provided that the aggregate cash consideration paid for all such redemptions shall not exceed (A) $5.0 million during any calendar year (with unused amounts being available to be used in the following calendar year, but not in any succeeding calendar year) plus (BD) the amount of Company or any net cash proceeds received by or contributed to the Issuer Subsidiary from the issuance and sale after the Issue Date of Qualified Equity Interests of the Issuer to its officers, directors or employees that have not been applied to the payment of Restricted Payments pursuant to this clause making (3), plus (C1) the net cash proceeds of any “key-man” life insurance policies that have not been applied to the payment of Restricted Payments pursuant to this clause (3);
(4) repurchases of Equity Interests that occur or are deemed to occur upon the exercise of stock options if the Equity Interests represents a portion of the exercise price thereof;
(5) Restricted Payments Investments pursuant to the Transactions;
(6) Restricted Payments if after giving effect thereto the Issuer’s Net Leverage Ratio is not greater than 3.0 to 1.0;
(7) other Restricted Payments in an amount not to exceed $50.0 million less the amount provisions of any Restricted Payments (as defined in the Senior Notes Indenture) deemed made on or after the Reference Date and on or prior to the Issue Date pursuant to Section 4.11(b)(7) employee benefit plans of the Senior Notes Indenture; provided that Restricted Payments made pursuant to this clause (7) shall not exceed $25.0 million in the aggregate in Company or any twelve-month period; or
(8) the purchase or retirement of Class B Common Stock of the Issuer from any Permitted Holder its Subsidiaries in an aggregate amount not to exceed $10.0 million 500,000 in any twelve-month periodfiscal year, or (2) making loans to officers of the Company in connection with any relocation of residence, approved by a majority of the independent members of the Board of Directors of the Company, provided that the aggregate amount of Investments and loans under this clause (D) shall not exceed $1,000,000 in any fiscal year;
(E) the Company or any Wholly Owned Restricted Subsidiary from making Designated Investments (1) in Subsidiaries that are not Wholly Owned Restricted Subsidiaries in an aggregate amount (together with Indebtedness incurred by or on behalf of Subsidiaries that are not Wholly Owned Restricted Subsidiaries in compliance with the provisions of Section 5.05(iii)) not to exceed 5% of Consolidated Tangible Assets or (2) in Joint Ventures in an aggregate amount not to exceed 5% of Consolidated Tangible Assets, provided that: (x) the Person in whom the Investment is made is engaged only in Permitted Businesses; (y) the Company, directly or through Wholly Owned Restricted Subsidiaries of the Company, controls, under an operating and management agreement or otherwise, the day to day management and operation of such Person or otherwise has the right to exercise significant influence over the management and operation of such Person in all material respects (including without limitation the right to control or veto any material act or decision); and (z) after giving effect to such Investment, the aggregate amount of Indebtedness and Investments made by the Company and its Subsidiaries in such Person does not exceed $5,000,000;
(F) the Company or any Wholly Owned Restricted Subsidiary from making Designated Investments in Subsidiaries that are not Wholly Owned Restricted Subsidiaries or in Joint Ventures; provided that no such Designated Investments are made solely from (1) the net proceeds from of a substantially concurrent sale (other than to a Subsidiary of the issuance and sale Company or an employee stock ownership plan) of shares of Qualified Equity Interests used to make a payment pursuant to clause Capital Stock of the Company, (2) 50% of the Company's Consolidated Net Income accrued during the period from the date of this Indenture to the end of the Company's most recently ended fiscal quarter for which financial results have been reported at the time of such Restricted Payment or (3)(B3) above the aggregate amount of Net Reductions in Investments (not to exceed the aggregate amount of such Designated Investments) made by the Company or any Subsidiary subsequent to the date of this Indenture;
(G) the Company from redeeming for cash all (but not less than all) of the outstanding shares of the Company's Series 2D Senior Preferred Stock; provided, however, that such redemption shall not be at a price in excess of the redemption price set forth in Section 17.01 of the Company's Amended and Restated Certificate of Incorporation in effect as of the date of this Indenture; and provided, further, that prior to January 13, 1997, the Company shall not redeem any of the outstanding shares of the Company's Series 2D Senior Preferred Stock until the Company delivers to the Trustee an Officer's Certificate certifying that the Company's earnings before interest and taxes for the most recent twelve (12) month period calculated in accordance with generally accepted accounting principles equalled or exceeded $27 million. Nothing contained in this further proviso shall affect the Company's right to redeem the Series 2D Senior Preferred Stock no later than January 13, 1997; or
(H) the Company from (1) making all regular quarterly dividends, each such quarterly dividend payment not to exceed $487,500 in the aggregate of $2,437.50 per share, on the outstanding shares of the Company's Series 2D Senior Preferred Stock; and (2) making all payments of any dividends of up to 9.75% on the aggregate unpaid amount of any regular quarterly dividend on the outstanding shares of the Company's Series 2D Senior Preferred Stock from the date such regular quarterly dividend should have been paid to the date of the payment of such dividend; in consideration thereof, and except as provided below, the ------------------------------------------------------ Company shall increase the Restricted Payments BasketInterest payable on the Notes by one percent (1%) (the "Additional Interest") from the date of this Indenture, such Additional Interest payable as provided for in the Notes. The Company files its financial results with the Securities and Exchange Commission on quarterly and annual reports, and these reports include the Company's earnings after deducting minority interests and before interest, taxes, depreciation, and amortization calculated in accordance with generally accepted accounting principles ("Earnings"). The Company will measure its Earnings for trailing twelve month periods, each period to end on the last day of a fiscal quarter and extend no further than March 31, 1998 (each a "Quarterly Measurement Period"). If the Company's Earnings equal or exceed $36 million for two consecutive Quarterly Measurement Periods, then the Company is relieved of its obligation to pay any future Additional Interest. However, if the Company's Earnings do not equal or exceed $36 million for any subsequent Quarterly Measurement Period, up to and including the Quarterly Measurement Period ending March 31, 1998, the Company is obligated to commence paying Additional Interest until the Company's Earnings again equal or exceed $36 million on a trailing twelve month basis calculated quarterly.
Appears in 1 contract
Limitations on Restricted Payments. (a) The Issuer shall Company will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, make any Restricted Payment (except as permitted below) if at the time of such Restricted Payment:
(1) a Default or Event of Default shall have occurred and be continuing or shall occur as a consequence thereof;
(2) the Issuer cannot incur $1.00 of additional Indebtedness pursuant Company would be unable to meet the Coverage Ratio ExceptionIncurrence Condition; or
(3) the amount of such Restricted Payment, when added to the aggregate amount of all other Restricted Payments (except as expressly provided in the second paragraph under paragraph (b) of this Section A-5) made on or after the Issue Date (other than Restricted Payments made pursuant to clauses (2), (3), (4), (5), (6), (7) or (8) first day of Section 4.11(b))the last completed fiscal quarter of the Company, exceeds the sum (the “Restricted Payments Basket”) of (without duplication):
(A) 50% of the Company's Consolidated Net Income for the period (taken as one accounting period) commencing on from the first day of the last completed fiscal quarter in which the Issue Date occurs to and including the last day of the Company to the end of the Company's most recently ended fiscal quarter ended immediately prior to the date of such calculation for which consolidated financial statements are available at the time of such Restricted Payment (or, if such aggregate Consolidated Net Income shall be a deficit, minus 100% of such aggregate deficit), plus
) plus (B) 100% of the aggregate net cash proceeds received by the Issuer either (x) as contributions to the common equity of the Issuer after the Issue Date or (y) from the issuance and sale of Qualified Equity Interests after the Issue Date, (other than (A) any such proceeds which are used to redeem Notes in accordance with paragraph 6(c) of the Notes or (B) any such proceeds or assets received from a Subsidiary of the Issuer, plus
Company or the Parent) after the Conversion Date of (C1) the aggregate amount by which Indebtedness incurred by Company's Capital Stock that is not Disqualified Capital Stock (excluding amounts contributed to the Issuer Company pursuant to clause (E) of this paragraph and excluding Capital Stock purchased with the proceeds of loans from the Company or any Restricted Subsidiary subsequent to of its Subsidiaries) or (2) debt securities of the Issue Date Company that have been converted into the Company's Capital Stock that is reduced on the Issuer’s balance sheet upon the conversion or exchange (other than not Disqualified Capital Stock and that is not then held by a Subsidiary of the IssuerCompany, plus (C) into Qualified Equity Interests (less to the amount of any cash, or the fair value of assets, distributed by the Issuer or extent that any Restricted Subsidiary upon such conversion or exchange), plus
(D) in the case of the disposition or repayment of or return on any Investment that was treated as a Restricted Payment made after the Issue DateConversion Date is sold for cash or otherwise liquidated or repaid for cash, an amount (to the extent not included in the computation of Consolidated Net Income) equal to the lesser of (ix) 100% of the aggregate amount received by the Issuer or any Restricted Subsidiary in cash or other property (valued at the Fair Market Value thereof) as the return of capital with respect to such Restricted Investment (less the cost of disposition, if any) and (iiy) the initial amount of such Restricted Investment, plus (D) the amount of any Restricted Investment outstanding in an Unrestricted Subsidiary at the time such Investment that was treated as Unrestricted Subsidiary is designated a Restricted Payment, in either case, less the cost Subsidiary of the disposition Company in accordance with the definition of such Investment and net of taxes, plus
"Unrestricted Subsidiary" in Annex B plus (E) upon a Redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary, the lesser of (i) the Fair Market Value 40% of the Issuer’s proportionate interest in such Subsidiary immediately following such Redesignation, and (ii) aggregate contributions by the aggregate amount of the Issuer’s Investments in such Subsidiary Parent to the extent such Investments reduced Company pursuant to Section A-2 subsequent to the Restricted Payments Basket and were not previously repaid or otherwise reducedConversion Date, plus (F) $7.5 million.
(b) The foregoing provisions shall of clauses (ii) and (iii) of paragraph (a) of this Section A-5 will not prohibit:
prohibit (1) the payment of any dividend by the Issuer Company or any Restricted Subsidiary of any dividend within 60 days after the date of declaration thereof, if on the at said date of declaration the such payment would have complied with the provisions of this Indenture ;
Agreement; (2) the redemption redemption, repurchase, retirement or other acquisition of any Equity Interests Capital Stock of the Issuer or any Restricted Subsidiary Company in exchange for, or out of the proceeds of of, the substantially concurrent issuance and sale of, Qualified Equity Interests;
(other than to a Subsidiary of the Company or the Parent) of other Capital Stock of the Company (other than any Disqualified Capital Stock); (3) the defeasance, redemption, repurchase or other retirement of Subordinated Indebtedness in exchange for, or out of the proceeds of, the substantially concurrent issue and sale of Capital Stock of the Company (other than pursuant (x) Disqualified Capital Stock, (y) Capital Stock sold to clause (8) below, the redemption of Equity Interests a Subsidiary of the Issuer Company or the Parent and (z) Capital Stock purchased with the proceeds of loans from the Company or any of its Subsidiaries); (4) the payment of amounts required to fund the Parent's reasonable operating expenses, not in excess of $250,000, as adjusted to reflect changes in the Consumer Price Index between the Conversion Date and the date of any such payment, in any fiscal year; (5) the payments of dividends or distributions to the Parent solely in amounts and at the times necessary to permit the Parent to purchase, redeem, acquire, cancel or otherwise retire for value Capital Stock of the Parent (i) held by officers, directors or employees or former officers, directors or employees (or their transferees, estates or beneficiaries under their estates), or a trust established for the benefit of any of the foregoing, of the Parent, the Company or its Subsidiaries, upon their death, disability, retirement, severance or termination of employment or serviceservice or pursuant to any agreement under which such Capital Stock or related rights were issued or (ii) held by members or former members of the Parent, upon the departure of such Persons as members of the Parent or upon the discontinuance by any such Person of one or more crops; provided that the aggregate cash consideration paid for all such redemptions shall not exceed (A) $5.0 million during any calendar year (with unused amounts being available to be used in the following calendar year, but not in any succeeding calendar year) plus (B) the amount of any net cash proceeds received by or contributed to the Issuer from the issuance and sale after the Issue Date of Qualified Equity Interests of the Issuer to its officers, directors or employees that have not been applied to the payment of Restricted Payments pursuant to such payments under this clause (3), plus (C) the net cash proceeds of any “key-man” life insurance policies that have not been applied to the payment of Restricted Payments pursuant to this clause (3);
(4) repurchases of Equity Interests that occur or are deemed to occur upon the exercise of stock options if the Equity Interests represents a portion of the exercise price thereof;
(5) Restricted Payments pursuant to does not exceed in the Transactions;
aggregate $2.0 million in any fiscal year; or (6) Restricted Payments if after giving effect thereto the Issuer’s Net Leverage Ratio is not greater than 3.0 to 1.0;
(7) other Restricted Payments in an amount not to exceed $50.0 million less Investments the amount of any which, together with the amount of all other Restricted Payments (as defined in the Senior Notes Indenture) deemed made on or after the Reference Date and on or prior to the Issue Date pursuant to Section 4.11(b)(7) of the Senior Notes Indenture; provided that Restricted Payments Investments made pursuant to this clause (76) shall after the Conversion Date, does not exceed $25.0 million in the aggregate in any twelve-month period; or
(8) the purchase or retirement of Class B Common Stock of the Issuer from any Permitted Holder in an aggregate amount not to exceed $10.0 million in any twelve-month period; provided that no proceeds from the issuance and sale of Qualified Equity Interests used to make a payment 15.0 million. Each Restricted Payment permitted pursuant to clause the preceding paragraph (other than the Restricted Payments referred to in clauses (2) or and (3)(B3) above shall increase thereof, and, to the extent deducted in determining Consolidated Net Income in any period, the Restricted Payments Basketreferred to in clause (5) thereof) shall be included once in calculating whether the conditions of clause (iii) of paragraph (a) of this Section A-5 of have been met with respect to any subsequent Restricted Payments. For purposes of determining compliance with this Section
(c) Not later than the date of making any Restricted Payment, the Company shall deliver to the Administrative Agent an Officers' Certificate stating that such Restricted Payment is permitted and setting forth the basis upon which the calculations required by this Section A-5 were computed, which calculations shall be based upon the Company's latest available financial statements.
Appears in 1 contract
Sources: Senior Subordinated Credit Agreement (Pro Fac Cooperative Inc)
Limitations on Restricted Payments. (a) The Issuer shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, make any Restricted Payment if at the time of such Restricted Payment:
(1) a Default shall have occurred and be continuing or shall occur as a consequence thereof;
(2) the Issuer cannot incur $1.00 of additional Indebtedness pursuant to the Coverage Ratio Exception; or
(3) the amount of such Restricted Payment, when added to the aggregate amount of all other Restricted Payments made after the Issue Date (other than Restricted Payments made pursuant to clauses (2), (3), (4), (5), (6), (7) ), (8) or (8) 10) of Section 4.11(b)the next paragraph), exceeds the sum (the “Restricted Payments Basket”) of (without duplication):
(Aa) 50% of Consolidated Net Income for the period (taken as one accounting period) commencing on the first day of the fiscal quarter in which that includes 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 such Consolidated Net Income shall be a deficit, minus 100% of such aggregate deficit), plus
(Bb) 100% of the aggregate net cash proceeds received by the Issuer either (x) as contributions to the common equity of the Issuer after the Issue Date or (y) from the issuance and sale of Qualified Equity Interests after the Issue Date, other than (A) any such proceeds which are used to redeem Notes in accordance with paragraph Section 6(c) of the Notes or (B) any such proceeds or assets received from a Subsidiary of the IssuerSubsidiary, plus
(Cc) the aggregate amount by which Indebtedness incurred by the Issuer or any Restricted Subsidiary subsequent to the Issue Date is reduced on the Issuer’s balance sheet upon the conversion or exchange (other than by a Subsidiary of the Issuer) into Qualified Equity Interests of the Issuer (less the amount of any cash, or the fair value of assets, distributed by the Issuer or any Restricted Subsidiary to a Person other then the Issuer or a Restricted Subsidiary upon such conversion or exchange), plus
(Dd) in the case of the disposition or repayment of or liquidated return on any Investment that was treated as a Restricted Payment made after the Issue Date, an amount (to the extent not included in the computation of Consolidated Net Income) equal to the lesser of (i) 100% of the aggregate amount received by the Issuer or any Restricted Subsidiary in cash or other property (valued at the Fair Market Value thereof) as the return of capital with respect to such Investment and (ii) the amount of such Investment that was treated as a Restricted Payment, in either case, less the cost of the disposition of such Investment and net of taxes, plus
(Ee) upon a Redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary, the lesser of (i) the Fair Market Value of the Issuer’s proportionate interest in such Subsidiary immediately following such Redesignation, and (ii) the aggregate Table of Contents -49- amount of the Issuer’s Investments in such Subsidiary to the extent such Investments prior to such Redesignation had reduced the Restricted Payments Basket and were not previously repaid or otherwise reduced.
(b) . The foregoing provisions provisions, which shall be given independent effect in whole or in part, shall not prohibit:
(1) the payment by the Issuer or any Restricted Subsidiary of any dividend within 60 days after the date of declaration thereof, if on the date of declaration the payment would have complied with the provisions of this Indenture Indenture;
(2) the redemption or repurchase of any Equity Interests of the Issuer or any Restricted Subsidiary in exchange for, or out of the proceeds of the substantially concurrent issuance and sale of, Qualified Equity Interests;
(3) other than pursuant to clause (8) below, the redemption or repurchase of Equity Interests Subordinated Indebtedness of the Issuer held by officersor any Restricted Subsidiary (a) in exchange for, directors or employees or former officers, directors or employees (or their transferees, estates or beneficiaries under their estates), upon their death, disability, retirement, severance or termination out of employment or service; provided that the aggregate cash consideration paid for all such redemptions shall not exceed (A) $5.0 million during any calendar year (with unused amounts being available to be used in proceeds of the following calendar year, but not in any succeeding calendar year) plus (B) the amount of any net cash proceeds received by or contributed to the Issuer from the substantially concurrent issuance and sale after the Issue Date of of, Qualified Equity Interests Interests, (b) in exchange for, or out of the Issuer proceeds of the substantially concurrent incurrence of, Refinancing Indebtedness permitted to its officers, directors be incurred under Section 4.06 and the other terms of this Indenture or employees that have not been applied (c) upon a Change of Control or in connection with an Asset Sale to the payment of Restricted Payments extent required by the agreement governing such Subordinated Indebtedness, but only if the Issuer shall have complied with Section 4.09 and Section 4.21 and purchased all Notes validly tendered pursuant to this clause (3), plus (C) the net cash proceeds of any “key-man” life insurance policies that have not been applied relevant offer prior to the payment of Restricted Payments pursuant to this clause (3)redeeming such Subordinated Indebtedness;
(4) repurchases of Equity Interests that occur or are deemed to occur upon the exercise of stock options options, warrants and other similar rights to acquire Equity Interests if the Equity Interests represents a portion of the exercise price thereof;
(5) Restricted Payments pursuant the repurchase of Equity Interests of the Issuer (including options, warrants or other rights to acquire such Equity Interests) in an aggregate amount paid that shall not exceed $10.0 million since the TransactionsIssue Date plus the aggregate cash proceeds from any payments on insurance policies in which the Issuer or any of its Subsidiaries is the beneficiary with respect to any directors, officers or employees of the Issuer and its Subsidiaries which proceeds are used to purchase the Equity Interests of the Issuer;
(6) Restricted Payments if after giving effect thereto the Issuer’s Net Leverage Ratio is not greater than 3.0 to 1.0;
(7) other Restricted Payments in an amount not to exceed $50.0 million less such that the sum of the aggregate amount of any Restricted Payments (as defined in the Senior Notes Indenture) deemed made on or after the Reference Date and on or prior to the Issue Date pursuant to Section 4.11(b)(7) of the Senior Notes Indenture; provided that Restricted Payments made pursuant to this clause (76) shall after the Issue Date does not exceed $25.0 15.0 million at any one time outstanding;
(7) payments pursuant to any of the Transactions or made in a manner consistent with the information under the caption “Use of Proceeds” (other than general corporate purposes) in the aggregate Offering Memorandum;
(8) any Investment to the extent the consideration for which consists of, or is made with the proceeds of the substantially concurrent sale of, or equity contribution with respect to, Qualified Equity Interests; Table of Contents -50-
(9) any payment or redemption prior to the scheduled maturity or prior to any scheduled repayment of principal in respect of that certain $10 million loan to the Issuer from BFI Co., LLC made pursuant to that certain Term Loan Agreement dated as of January 29, 2009 by and among the Issuer, the guarantors thereto and BFI Co., LLC;
(10) the declaration and payment of dividends to holders of any twelve-month periodclass or series of Disqualified Equity Interests of the Issuer issued in accordance with Section 4.06 to the extent such dividends are included in the definition of “Consolidated Interest Expense”; or
(8) 11) repurchases by the purchase Issuer or retirement any Restricted Subsidiary of Class B Common Stock (x) Qualified Equity Interests deemed to occur upon the exercise of stock options or warrants if such Qualified Equity Interests represent a portion of the Issuer from any Permitted Holder in exercise price thereof or (y) Qualified Equity Interests deemed to occur upon the withholding of a portion of the Qualified Equity Interests granted or awarded to an aggregate amount not employee to exceed $10.0 million in any twelve-month periodpay for the taxes payable by such employee upon such grant or award; provided that (a) in the case of any Restricted Payment pursuant to clause (3), (5), (6), (9), (10) or (11) above, no proceeds from the Default shall have occurred and be continuing or occur as a consequence thereof and (b) no issuance and sale of Qualified Equity Interests used to make a payment pursuant to clause clauses (2), (3)(a) or (3)(B) 8) above shall increase the Restricted Payments Basket.
Appears in 1 contract
Limitations on Restricted Payments. Section 5.12 of the Indenture is hereby amended and restated to read as follows:
(a) The Issuer shall Company will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, make any Restricted Payment, directly or indirectly, make any Restricted Payment after the Issue Date of the Securities if at the time of such Restricted Payment:
(1) a Default shall have occurred and be continuing or shall occur as a consequence thereof;
(2) the Issuer cannot incur $1.00 of additional Indebtedness pursuant to the Coverage Ratio Exception; or
(3i) the amount of such Restricted Payment (the amount of such Restricted Payment, if other than in cash, will be determined by the Board of Directors of the Company), when added to the aggregate amount of all other Restricted Payments made after the Issue Date (other than Restricted Payments made pursuant to clauses (2), (3), (4), (5), (6), (7) or (8) of Section 4.11(b))the Securities, exceeds the sum of: (1) 50 percent of the “Restricted Payments Basket”) of (without duplication):
(A) 50% of Company's Consolidated Net Income for accrued during the period (taken as one accounting a single period) commencing on the first day of the fiscal quarter in 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 since January 1, 1996 (or, if such aggregate Consolidated Net Income shall be is a deficit, minus 100% 100 percent of such aggregate deficit), plus
plus (B2) 100% of the aggregate net cash proceeds received by the Issuer either (x) as contributions to the common equity of the Issuer after the Issue Date or (y) derived from the issuance and sale of Qualified Equity Interests after Capital Stock of the Issue Date, Company and its Restricted Subsidiaries that is not Disqualified Stock (other than (A) any such proceeds which are used a sale to redeem Notes in accordance with paragraph 6(c) of the Notes or (B) any such proceeds or assets received from a Subsidiary of the Issuer, plus
(CCompany) the aggregate amount by which Indebtedness incurred by the Issuer or any Restricted Subsidiary subsequent to after the Issue Date is reduced on of Securities but only to the Issuer’s balance sheet upon the conversion or exchange extent not applied under clause (other than by a Subsidiary c) of the Issuerdefinition of Restricted Payments set forth in Section 1.2 hereof, plus (3) into Qualified Equity Interests (less 100 percent of the principal amount of any cashIndebtedness of the Company or a Restricted Subsidiary that is converted into or exchanged for Capital Stock of the Company that is not Disqualified Stock, or plus (4) 100 percent of the fair value of assets, distributed aggregate amounts received by the Issuer Company or any Restricted Subsidiary upon the sale, disposition or liquidation (including by way of dividends or other return of capital) of any Investment but only to the extent (x) not included in Consolidated Net Income pursuant to clause (2) above and (y) that the making of such conversion or exchangeInvestment constituted a Restricted Investment made pursuant to this Section 5.12(a)(i), plus
plus (D5) in the case 100 percent of the disposition principal amount of, or repayment if issued at a discount the accreted value of, any Indebtedness or other obligation that is the subject of or return on any Investment that was treated as a Restricted Payment made guaranty by the Company which is released after the Issue DateDate of the Securities, an amount (but only to the extent not included that the granting of such guaranty constituted a Restricted Payments under the definition set forth in the computation of Consolidated Net Income) equal to the lesser of (i) 100% of the aggregate amount received by the Issuer or any Restricted Subsidiary in cash or other property (valued at the Fair Market Value thereof) as the return of capital with respect to such Investment and Section 1.2 hereof; or
(ii) the amount Company or its Restricted Subsidiaries would be unable to incur an additional $1.00 of such Investment that was treated Indebtedness under the Consolidated Fixed Charge Coverage Ratio contained in the covenant set forth in Section 5.13(a) hereof; or
(iii) a Default or Event of Default has occurred and is continuing or occurs as a Restricted Payment, in either case, less the cost of the disposition of such Investment and net of taxes, plus
(E) upon a Redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary, the lesser of (i) the Fair Market Value of the Issuer’s proportionate interest in such Subsidiary immediately following such Redesignation, and (ii) the aggregate amount of the Issuer’s Investments in such Subsidiary to the extent such Investments reduced the Restricted Payments Basket and were not previously repaid or otherwise reducedconsequence thereof.
(b) The foregoing Notwithstanding the foregoing, the provisions shall of this Section 5.12 will not prohibit:
prevent: (1i) the payment by the Issuer or any Restricted Subsidiary of any dividend within 60 days after the date of declaration thereof, thereof if the payment thereof would have complied with the limitations of this Indenture on the date of declaration the payment would have complied with the provisions or (ii) retirement of this Indenture ;
(2) the redemption of any Equity Interests shares of the Issuer Company's Capital Stock or any Restricted the Company's or a Subsidiary of the Company's Indebtedness for, in exchange for, or out of the proceeds of the a substantially concurrent issuance and sale (other than a sale to a Subsidiary of the Company) of, Qualified Equity Interests;
other shares of its Capital Stock (3) other than pursuant to clause (8) below, the redemption of Equity Interests of the Issuer held by officers, directors or employees or former officers, directors or employees (or their transferees, estates or beneficiaries under their estatesDisqualified Stock), upon their death, disability, retirement, severance or termination of employment or service; provided that the aggregate cash consideration paid for all such redemptions shall not exceed (A) $5.0 million during any calendar year (with unused amounts being available to be used in the following calendar year, but not in any succeeding calendar year) plus (B) the amount of any net cash proceeds received by or contributed to the Issuer from the issuance and sale after the Issue Date of Qualified Equity Interests of the Issuer to its officers, directors or employees that have not been applied to the payment of Restricted Payments pursuant to this clause (3), plus (C) the net cash proceeds of any “key-man” life insurance policies that have not been applied to the payment of Restricted Payments pursuant to this clause (3);
(4) repurchases of Equity Interests that occur or are deemed to occur upon the exercise of stock options if the Equity Interests represents a portion of the exercise price thereof;
(5) Restricted Payments pursuant to the Transactions;
(6) Restricted Payments if after giving effect thereto the Issuer’s Net Leverage Ratio is not greater than 3.0 to 1.0;
(7) other Restricted Payments in an amount not to exceed $50.0 million less the amount of any Restricted Payments (as defined in the Senior Notes Indenture) deemed made on or after the Reference Date and on or prior to the Issue Date pursuant to Section 4.11(b)(7) of the Senior Notes Indenture; provided that Restricted Payments made pursuant to this clause (7) shall not exceed $25.0 million in the aggregate in any twelve-month period; or
(8) the purchase or retirement of Class B Common Stock of the Issuer from any Permitted Holder in an aggregate amount not to exceed $10.0 million in any twelve-month period; provided that no proceeds from the issuance and sale of Qualified Equity Interests used to make a payment pursuant to clause (2) or (3)(B) above shall increase the Restricted Payments Basket.
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Limitations on Restricted Payments. (a) The Issuer Parent shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, make any Restricted Payment if at the time of such Restricted Payment:
(1i) a Default shall have occurred and be continuing or shall occur as a consequence thereof;
(2) the Issuer cannot incur $1.00 of additional Indebtedness pursuant to the Coverage Ratio Exception; or
(3ii) the amount of such Restricted Payment, when added to the aggregate amount of all other Restricted Payments made after the Issue Date (other than Restricted Payments made pursuant to clauses clause (2b)(ii), (3), (4), (5), (6), (7iii) or (8) of Section 4.11(b)v) below), exceeds the sum (the “Restricted Payments Basket”) of (without duplication):
(A1) 50% of Consolidated Net Income for the period (taken as one accounting period) commencing on the first day of the fiscal quarter in which from 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 such Consolidated Net Income shall be a deficit, minus 100% of such aggregate deficit), plus
(B2) 100% of the aggregate net cash proceeds received by the Issuer Parent either (x) as contributions to the common equity of the Issuer Parent after the Issue Date or (y) from the issuance and sale of Qualified Equity Interests after the Issue Date, other than (A) to the extent any such proceeds which are used to redeem Notes in accordance with paragraph 6(c) 5 of the Notes or (B) any such proceeds or assets received from a Subsidiary of the IssuerNotes, plus
(C3) the aggregate amount by which Indebtedness incurred by of the Issuer Parent or any Restricted Subsidiary subsequent to the Issue Date is reduced on the IssuerParent’s balance sheet upon the conversion or exchange (other than by a Subsidiary of the IssuerParent) of Indebtedness issued subsequent to the Issue Date into Qualified Equity Interests (less the amount of any cash, or the fair value of assets, distributed by the Issuer Parent or any Restricted Subsidiary upon such conversion or exchange), plus
(D4) in the case of the disposition or repayment of or return on any Investment that was treated as a Restricted Payment made after the Issue Date, an amount (to the extent not included in the computation of Consolidated Net Income) equal to the lesser of (ia) 100% of the aggregate amount received by the Issuer or any Restricted Subsidiary in cash or other property (valued at the Fair Market Value thereof) as the return of capital with respect to such Investment and (iib) the amount of such Investment that was treated as a Restricted Payment, in either case, less the cost of the disposition of such Investment and net of taxes, plus
(E5) upon a Redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary (including, for the avoidance of doubt, any Joint Venture becoming a Consolidated Joint Venture which is a Restricted Subsidiary), the lesser of (ia) the Fair Market Value of the IssuerParent’s proportionate interest in such Subsidiary immediately following such Redesignation, and (iib) the aggregate amount of the IssuerParent’s Investments in such Subsidiary to the extent such Investments reduced the amount available for subsequent Restricted Payments Basket under this clause (ii) and were not previously repaid or otherwise reduced.
(b) The foregoing provisions shall will not prohibit:
(1i) the payment by the Issuer Parent or any Restricted Subsidiary of any dividend within 60 days after the date of declaration thereof, if on the date of declaration the payment would have complied with the provisions of this Indenture Indenture;
(2ii) so long as no Default shall have occurred and be continuing at the time of or as a consequence of such redemption, the redemption of any Equity Interests of the Issuer Parent or any Restricted Subsidiary in exchange for, or out of the proceeds of the substantially concurrent issuance and sale of, Qualified Equity Interests;
(3iii) so long as no Default shall have occurred and be continuing at the time of or as a consequence of such redemption, the redemption of Subordinated Indebtedness of the Parent or any Restricted Subsidiary (a) in exchange for, or out of the proceeds of the substantially concurrent issuance and sale of, Qualified Equity Interests or (b) in exchange for, or out of the proceeds of the substantially concurrent incurrence of, Refinancing Indebtedness permitted to be incurred under Section 4.06 and the other than pursuant to clause terms of this Indenture;
(8) belowiv) so long as no Default shall have occurred and be continuing at the time of or as a consequence of such redemption, the redemption of Equity Interests of the Issuer Parent held by officers, directors or employees or former officers, directors or employees (or their transferees, estates or beneficiaries under their estates), upon their death, disability, retirement, severance or termination of employment or service; provided that the aggregate cash consideration paid for all such redemptions shall not exceed (A) $5.0 2.0 million during any calendar year year;
(with unused amounts being available a) regularly scheduled cash distributions in respect of the New Preferred Shares not to be used exceed 4% per annum; and (b) distributions of any accrued and unpaid dividends in respect of the following calendar yearNew Preferred Shares that have accrued at a rate not to exceed 6% per annum, but not in any succeeding calendar year) plus (B) reduced by the amount of any net cash proceeds received by or contributed to the Issuer from the issuance and sale after the Issue Date of Qualified Equity Interests distributions paid in cash, upon conversion of the Issuer to its officers, directors or employees that have not been applied to the payment of Restricted Payments pursuant to this clause (3), plus (C) the net cash proceeds of any “key-man” life insurance policies that have not been applied to the payment of Restricted Payments pursuant to this clause (3)New Preferred Shares;
(4vi) repurchases of Equity Interests that occur or are deemed to occur upon the exercise of stock options if the Equity Interests represents a portion of the exercise price thereof;
(5vii) Restricted Payments pursuant to the Transactions;
(6) Restricted Payments if after giving effect thereto the Issuer’s Net Leverage Ratio is not greater than 3.0 to 1.0;
(7) other Restricted Payments in an amount not to exceed $50.0 million less the amount of any Restricted Payments (as defined in the Senior Notes Indenture) deemed made on or after the Reference Date and on or prior to the Issue Date pursuant to Section 4.11(b)(7) of the Senior Notes Indenture; provided that Restricted Payments made pursuant to this clause (7) shall not exceed $25.0 million in the aggregate in any twelve-month period[Intentionally Omitted]; or
(8) viii) to the purchase extent constituting a Restricted Payment, Investments by the Issuer in MF Owner or retirement CF Owner unless: (a)(i) such Investment is in the form of Class B Common Stock a loan or extension of credit (a “Credit Advance”); (ii) the borrower under such Credit Advance is either MF Owner or CF Owner; (iii) such Credit Advance is evidenced by one or more promissory notes or accounted for as an intercompany receivable on the books and records of the Issuer from any Permitted Holder in an aggregate amount not accordance with GAAP; (iv) such Credit Advance is made solely to exceed $10.0 million repay, in any twelve-month periodits entirety, and terminate the Existing Secured Indebtedness of MF Owner or CF Owner, as applicable; provided that no proceeds from (v) such Credit Advance is made directly to the issuance and sale of Qualified Equity Interests used to make a payment lender, agent or trustee under such Existing Secured Indebtedness pursuant to clause (2) a payoff letter or (3)(B) above shall increase demand letter pursuant to which such lender, agent or trustee has agreed to release its Liens on the Restricted Payments Basket.MF Property or CF Property, as applicable, upon receipt of the amounts set forth in such
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Limitations on Restricted Payments. (a) The Issuer Company and the Guarantors shall not, and neither the Company nor the Guarantors shall not permit any Restricted Subsidiary of its Subsidiaries to, directly or indirectly, make any Restricted Payment if at the time of if, after giving effect to such Restricted Payment:
Payment on a pro forma basis, (1) a Default or an Event of Default shall have occurred and be continuing or shall occur as a consequence thereof;
continuing, (2) the Issuer canCompany is not permitted to incur at least $1.00 of additional Indebtedness pursuant to the Coverage Debt Incurrence Ratio Exception; or
test in Section 4.7 hereof, or (3) the amount of such Restricted Payment, when added to the aggregate amount of all other Restricted Payments made by the Company and its Subsidiaries, including after giving effect to such proposed Restricted Payment, on and after the Issue Date Date, would exceed, without duplication, the sum of (other than Restricted Payments made pursuant to clauses (2)a) $20,000,000, plus, (3), (4), (5), (6), (7) or (8) of Section 4.11(b)), exceeds the sum (the “Restricted Payments Basket”) of (without duplication):
(Ab) 50% of the aggregate Consolidated Net Income of the Company for the period (taken as one accounting period) ), commencing on the first day of the fiscal quarter in which the Issue Date occurs April 1, 2001, to and including the last day of the fiscal quarter ended immediately prior to the date of each such calculation for which consolidated financial statements of the Company are available (or, if such in the event Consolidated Net Income shall be for such period is a deficit, then minus 100% of such aggregate deficit), plus
plus (Bc) 100% of the aggregate net cash proceeds Net Cash Proceeds received by the Issuer either Company from the sale of its Qualified Capital Stock or of its debt securities that have been converted into Qualified Capital Stock (other than (i) to one of its Subsidiaries and (ii) to the extent applied in connection with clauses (x) as contributions to the common equity of the Issuer after the Issue Date or and (y) from in the issuance and sale of Qualified Equity Interests next succeeding paragraph), after the Issue Date, other than plus (Ad) any such proceeds which are used to redeem Notes in accordance with paragraph 6(c) of the Notes or (B) any such proceeds or assets received from a Subsidiary of the Issuer, plus
(C) the aggregate amount by which Indebtedness incurred by the Issuer or extent that any Restricted Subsidiary subsequent to Investment that was made after the Issue Date is reduced on the Issuer’s balance sheet upon the conversion or exchange (other than by a Subsidiary of the Issuer) into Qualified Equity Interests (less the amount of any cash, or the fair value of assets, distributed by the Issuer or any Restricted Subsidiary upon such conversion or exchange), plus
(D) in the case of the disposition or repayment of or return on any Investment that was treated as a Restricted Payment made after the Issue Date, an amount (to the extent not included in the computation of Consolidated Net Income) equal to the lesser of (i) 100% of the aggregate amount received by the Issuer or any Restricted Subsidiary in sold for cash or other property (valued at the Fair Market Value thereof) as the return of capital with respect to such Investment and (ii) the amount of such Investment that was treated as a Restricted Payment, in either case, less the cost of the disposition of such Investment and net of taxes, plus
(E) upon a Redesignation of an Unrestricted Subsidiary as a Restricted Subsidiaryotherwise liquidated or repaid for cash, the lesser of (i) the Fair Market Value cash return of capital with respect to such Restricted Investment (less the Issuer’s proportionate interest in such Subsidiary immediately following such Redesignationcost of disposition, if any) and (ii) the aggregate initial amount of such Restricted Investment, plus (e) 50% of any dividends received by the Issuer’s Investments in such Company or a Guarantor after the Issue Date from an Unrestricted Subsidiary to the extent such Investments reduced the Restricted Payments Basket and were not previously repaid or otherwise reduced.
(b) included in Consolidated Net Income. The foregoing provisions shall clauses of the immediately preceding paragraph of this Section 4.9, however, will not prohibit:
: (1x) the redemption, repurchase, retirement or other acquisition of any Equity Interests of the Company in exchange for, or out of the proceeds of, the substantially concurrent sale (other than to a Subsidiary of the Company) of the Company's Qualified Capital Stock; (y) the defeasance, redemption or repurchase of Subordinated Indebtedness with the Net Cash Proceeds from an incurrence of Refinancing Indebtedness or the substantially concurrent sale (other than to a Subsidiary of the Company) (or in exchange for) of Qualified Capital Stock; or (z) the payment by the Issuer or any Restricted Subsidiary of any dividend within 60 days after the date of its declaration thereof, if such dividend could have been made on the date of such declaration the payment would have complied in compliance with the provisions of this Indenture ;
(2) the redemption foregoing provisions. The full amount of any Equity Interests Restricted Payment made pursuant to the foregoing clause (z) (but not pursuant to clauses (x) and (y)) of the Issuer or any immediately preceding sentence, however, will be counted as Restricted Subsidiary in exchange for, or out Payments made for purposes of the proceeds calculation of the substantially concurrent issuance and sale of, Qualified Equity Interests;
aggregate amount of Restricted Payments available to be made referred to in clause (3) other than pursuant to clause (8) below, the redemption of Equity Interests of the Issuer held by officersfirst paragraph of this Section 4.9. For purposes of this Section 4.9, directors or employees or former officers, directors or employees (or their transferees, estates or beneficiaries under their estates), upon their death, disability, retirement, severance or termination of employment or service; provided that the aggregate cash consideration paid for all such redemptions shall not exceed (A) $5.0 million during any calendar year (with unused amounts being available to be used in the following calendar year, but not in any succeeding calendar year) plus (B) the amount of any net cash proceeds received by or contributed to the Issuer from the issuance and sale after the Issue Date of Qualified Equity Interests of the Issuer to its officers, directors or employees that have not been applied to the payment of Restricted Payments pursuant to this clause (3), plus (C) the net cash proceeds of any “key-man” life insurance policies that have not been applied to the payment of Restricted Payments pursuant to this clause (3);
(4) repurchases of Equity Interests that occur or are deemed to occur upon the exercise of stock options if the Equity Interests represents a portion of the exercise price thereof;
(5) Restricted Payments pursuant to the Transactions;
(6) Restricted Payments if after giving effect thereto the Issuer’s Net Leverage Ratio is not greater than 3.0 to 1.0;
(7) other Restricted Payments in an amount not to exceed $50.0 million less the amount of any Restricted Payments (Payment made or returned, if other than in cash, shall be the fair market value thereof, as defined determined in the Senior Notes Indenture) deemed made on or after the Reference Date and on or prior to the Issue Date pursuant to Section 4.11(b)(7) good faith reasonable judgment of the Senior Notes Indenture; provided that Company's Board of Directors, unless stated otherwise, at the time made or returned, as applicable. Additionally, on the day of making any Restricted Payments made pursuant to this clause (7) shall not exceed $25.0 million in the aggregate in any twelve-month period; or
(8) the purchase or retirement of Class B Common Stock of the Issuer from any Permitted Holder in an aggregate amount not to exceed $10.0 million in any twelve-month period; provided that no proceeds from the issuance and sale of Qualified Equity Interests used to make a payment pursuant to clause (2) or (3)(B) above shall increase Payment, other than the Restricted Payments Basketset forth in clauses (x)-(z) above, the Company shall deliver an Officers' Certificate to the Trustee describing in reasonable detail the nature of such Restricted Payment, stating the amount of such Restricted Payment, stating in reasonable detail the provisions of the Indenture pursuant to which such Restricted Payment was made and certifying that such Restricted Payment was made in compliance with the terms of this Indenture.
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Limitations on Restricted Payments. (a) The Issuer Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, make any Restricted Payment if at the time of such Restricted Payment:
(1) a Default shall have occurred and be continuing or shall occur as a consequence thereof;
(2) the Issuer Company cannot incur $1.00 of additional Indebtedness pursuant to the Coverage Ratio Exception; or
(3) the amount of such Restricted Payment, when added to the aggregate amount of all other Restricted Payments made after the Issue Date (other than Restricted Payments made pursuant to clauses clause (2), (3), (4), (5), (6), (7) or (8) 9) of Section 4.11(b)), ) below) exceeds the sum (the “"Restricted Payments Basket”") -------------------------- of (without duplication):
(A) 50% of Consolidated Net Income for the period (taken as one accounting period) commencing on the first day of the first full fiscal quarter in which commencing after 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 such Consolidated Net Income shall be a deficit, minus 100% of such aggregate deficit), plusplus ----
(B) 100% of the aggregate net cash proceeds received by the Issuer Company either (x) as contributions to the common equity of the Issuer Company after the Issue Date or (y) from the issuance and sale of Qualified Equity Interests after the Issue DateDate (including any net cash proceeds received in connection with any conversion or exchange of Indebtedness of the Company or any Restricted Subsidiary or Disqualified Equity Interests of the Company), other than (A) any such proceeds which are used to redeem Notes in accordance with paragraph 6(c) 8 of the Notes or (B) any such proceeds or assets received from a Subsidiary of the Issuer, plus
(C) the aggregate amount by which Indebtedness incurred by the Issuer or any Restricted Subsidiary subsequent to the Issue Date is reduced on the Issuer’s balance sheet upon the conversion or exchange (other than by a Subsidiary of the Issuer) into Qualified Equity Interests (less the amount of any cash, or the fair value of assets, distributed by the Issuer or any Restricted Subsidiary upon such conversion or exchange), plus
(D) in the case of the disposition or repayment of or return on any Investment that was treated as a Restricted Payment made after the Issue Date, an amount (to the extent not included in the computation of Consolidated Net Income) equal to the lesser of (i) 100% of the aggregate amount received by the Issuer or any Restricted Subsidiary in cash or other property (valued at the Fair Market Value thereof) as the return of capital with respect to such Investment and (ii) the amount of such Investment that was treated as a Restricted Payment, in either case, less the cost of the disposition of such Investment and net of taxes, plusplus ----
(E) upon a Redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary, the lesser of (i) the Fair Market Value of the Issuer’s Company's proportionate interest in such Subsidiary immediately following such Redesignation, and (ii) the aggregate amount of the Issuer’s Company's Investments (other than Permitted Investments) in such Subsidiary to the extent such Investments reduced the amount available for subsequent Restricted Payments Basket under this clause (3) and were not previously repaid or otherwise reducedreduced in a manner that increased the Restricted Payment Basket.
(b) The foregoing provisions shall will not prohibit:
(1) the payment by the Issuer Company or any Restricted Subsidiary of any dividend within 60 days after the date of declaration thereof, if on the date of declaration the payment would have complied with the provisions of this Indenture (and such payment shall be deemed to have been paid on such date of declaration for purposes of any calculation required in clause (3) Section 4.11(a));
(2) the purchase, redemption or other acquisition or retirement of any Equity Interests of the Issuer Company or any Restricted Subsidiary in exchange for, or out of the proceeds of the substantially concurrent issuance and sale of, Qualified Equity Interests;
(3) the purchase, redemption, repayment, defeasance or other than pursuant acquisition of Subordinated Indebtedness of the Company or any Restricted Subsidiary (a) in exchange for, or out of the proceeds of the substantially concurrent issuance and sale of, Qualified Equity Interests or (b) in exchange for, or out of the proceeds of the substantially concurrent incurrence of, Refinancing Indebtedness permitted to clause be incurred under Section 4.10 and the other terms of this Indenture;
(8) below4) the purchase, the redemption or retirement of Equity Interests of the Issuer Company held by officers, directors or employees or former officers, directors or employees of the Company or any of its Restricted Subsidiaries (or their transferees, estates or beneficiaries under their estates), upon or after their death, disability, retirement, severance or termination of employment or service; provided that the aggregate cash consideration paid for all -------- such redemptions shall not exceed (A) $5.0 3.0 million during any calendar year (with unused amounts in any calendar year being available usable, without duplication, in subsequent calendar years);
(5) repurchases, acquisitions or retirements of Equity Interests deemed to occur upon, or intended to be used in to satisfy issuances of Equity Interests upon, the following calendar year, but not in any succeeding calendar yearexercise of stock options or similar rights issued under employee benefit plans;
(6) plus (B) the amount acquisitions or retirements of any net cash proceeds received by or contributed to the Issuer from the issuance and sale after the Issue Date of Qualified Equity Interests of the Issuer Company with a Fair Market Value at the time of acquisition or retirement, as the case may be, in the aggregate not to its exceed $15.0 million received as consideration with respect to a sale of assets to any physician practice in connection with the termination of a Management Services Agreement in effect on the Issue Date;
(7) the redemption or repurchase of common stock of the Company from holders thereof who beneficially own in the aggregate less than one percent (1%) of the outstanding common stock (other than officers, directors or employees that have of the Company or any of its Restricted Subsidiaries whose Equity Interests are redeemed or repurchased in accordance with clause (4) of this Section 4.11(b)) within two years from the Issue Date so long as the aggregate amount of payments for all such redemptions or repurchases under this clause (7) does not been applied exceed $1.0 million;
(8) the purchase, defeasance or other acquisition or retirement for value of any Subordinated Indebtedness upon a Change of Control of the Company, to the payment extent required by any agreement pursuant to which such Subordinated Indebtedness was issued, but only if the Company has complied with the provisions described in Section 4.08 and paragraph 8 of the Notes; and
(9) additional Restricted Payments not exceed $35.0 million in the aggregate; provided that (x) in the case of any Restricted Payment pursuant to this clause (3), plus (C) the net cash proceeds of any “key-man” life insurance policies that have not been applied to the payment of Restricted Payments pursuant to this clause (3);
(4) repurchases of Equity Interests that occur or are deemed to occur upon the exercise of stock options if the Equity Interests represents a portion of the exercise price thereof;
(5) Restricted Payments pursuant to the Transactions;
-------- (6) Restricted Payments if after giving effect thereto the Issuer’s Net Leverage Ratio is not greater than 3.0 to 1.0;
), (7) other Restricted Payments in an amount not to exceed $50.0 million less the amount of any Restricted Payments (as defined in the Senior Notes Indenture) deemed made on or after the Reference Date and on or prior to the Issue Date pursuant to Section 4.11(b)(7) of the Senior Notes Indenture; provided that Restricted Payments made pursuant to this clause (7) shall not exceed $25.0 million in the aggregate in any twelve-month period; or
), (8) the purchase or retirement of Class B Common Stock of the Issuer from any Permitted Holder in an aggregate amount not to exceed $10.0 million in any twelve-month period; provided that (9) above, no proceeds from the Default shall have occurred and be continuing or occur as a consequence thereof and (y) no issuance and sale of Qualified Equity Interests used to make a payment pursuant to clause (2) or (3)(B3) above shall increase the Restricted Payments BasketBasket in clause (3) of Section 4.11(a).
(c) For purposes of determining compliance with the provisions of this Section 4.11, in the event that any payment or other action meets the criteria of more than one of the categories of Permitted Investments and/or Restricted Payments permitted by this Indenture, the Company, in its sole discretion, may order and classify all or any portion of such Permitted Investments and/or Restricted Payments on the date of their incurrence in any manner that then complies with this Indenture and/or from time to time may reorder and reclassify all or any portion of any item of Permitted Investments and/or Restricted Payments in any manner that complies with this Indenture at the date of any such reordering or reclassification and, in each case, the Company shall be entitled, at its option, to divide and classify or reclassify any item of Permitted Investments and/or Restricted Payments in more than one of the types of Permitted Investments and/or Restricted Payments permitted under this Indenture in any manner that complies with this Indenture at the time of such division and classification or reclassification.
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Sources: Indenture (Us Oncology Inc)
Limitations on Restricted Payments. (a) The Issuer Company shall not, and shall not cause or permit any of its Restricted Subsidiary Subsidiaries to, make any Restricted Payment, directly or indirectly, make any Restricted Payment after the date of this Indenture if at the time of such Restricted Payment:
(1) a Default shall have occurred and be continuing or shall occur as a consequence thereof;
(2i) the Issuer cannot incur $1.00 amount of additional Indebtedness pursuant to the Coverage Ratio Exception; or
such proposed Restricted Payment (3) the amount of such Restricted Payment, if other than in cash, shall be determined in good faith by a majority of the disinterested members of the Board of Directors of the Company), when added to the aggregate amount of all other Restricted Payments (excluding Restricted Payments permitted by Section 4.07(b)(ii), Section 4.07(b)(iii), Section 4.07(b)(iv), Section 4.07(b)(vi) and Section 4.07(b)(vii)) declared or made after the Issue Date (other than Restricted Payments made pursuant to clauses (2), (3), (4), (5), (6), (7) or (8) of Section 4.11(b)), exceeds the sum (the “Restricted Payments Basket”) of (without duplication):of:
(A) $200.0 million, plus
(B) 50% of the Company’s Consolidated Net Income for accrued during the period (taken as one accounting a single period) commencing on the first day of the fiscal quarter in which the Issue Covenant Trigger Date occurs to and including ending on the last day of the fiscal quarter ended immediately prior preceding the fiscal quarter in which the Restricted Payment is to the date of such calculation for which consolidated financial statements are available occur (or, if such aggregate Consolidated Net Income shall be is a deficit, minus 100% of such aggregate deficit), plus
(BC) the net cash proceeds derived from the issuance and sale of Capital Stock of the Company and its Restricted Subsidiaries (or any capital contribution to the Company or a Restricted Subsidiary) that is not Disqualified Stock (other than a sale to, or a contribution by, a Subsidiary of the Company) after the Issue Date, plus
(D) 100% of the principal amount of, or, if issued at a discount, the accreted value of, any Indebtedness of the Company or a Restricted Subsidiary which is issued (other than to a Subsidiary of the Company) after the Issue Date that is converted into or exchanged for Capital Stock of the Company that is not Disqualified Stock, plus
(E) 100% of the aggregate net cash proceeds amounts received by the Issuer either Company or any Restricted Subsidiary from the sale, disposition or liquidation (including by way of dividends) of any Investment (other than to any Subsidiary of the Company and other than to the extent sold, disposed of or liquidated with recourse to the Company or any of its Subsidiaries or to any of their respective properties or assets) but only to the extent (x) as contributions to the common equity of the Issuer after the Issue Date or not included in clause (B) above and (y) from that the issuance and sale making of Qualified Equity Interests such Investment constituted a Permitted Investment or Restricted Investment, plus
(F) 100% of the principal amount of, or if issued at a discount, the accreted value of, any Indebtedness or other obligation that is the subject of a guarantee by the Company which is released (other than due to a payment on such guarantee) after the Issue Date, other than (A) any but only to the extent that such proceeds which are used to redeem Notes in accordance with paragraph 6(c) of the Notes or (B) any such proceeds or assets received from guarantee constituted a Subsidiary of the Issuerpermitted Restricted Payment, plus
(CG) the aggregate amount by which Indebtedness incurred by the Issuer or with respect to any Unrestricted Subsidiary that is redesignated as a Restricted Subsidiary subsequent to in accordance with the Issue Date is reduced on definition of “Unrestricted Subsidiary” (so long as the Issuer’s balance sheet upon the conversion or exchange (other than by a designation of such Subsidiary of the Issuer) into Qualified Equity Interests (less the amount of any cash, or the fair value of assets, distributed by the Issuer or any Restricted as an Unrestricted Subsidiary upon such conversion or exchange), plus
(D) in the case of the disposition or repayment of or return on any Investment that was treated as a Restricted Payment made after the Issue Date, an amount (and only to the extent not included in the computation of Consolidated Net Incomeclause (B) above), an amount equal to the lesser of (ix) 100% the proportionate interest of the aggregate amount received by the Issuer Company or any a Restricted Subsidiary in cash or other property an amount equal to the excess of (I) the total assets of such Subsidiary, valued on an aggregate basis at the lesser of Book Value and Fair Market Value thereof, over (II) the total liabilities of such Subsidiary, determined in accordance with GAAP, and (y) the amount of the Restricted Payment deemed to be made upon such Subsidiary’s designation as the return of capital with respect to such Investment and an Unrestricted Subsidiary; or
(ii) the amount Company would be unable to incur $1.00 of such Investment that was treated additional Indebtedness under the Consolidated Fixed Charge Coverage Ratio contained in Section 4.10 hereof; or
(iii) a Default or Event of Default has occurred and is continuing or occurs as a Restricted Payment, in either case, less the cost of the disposition of such Investment and net of taxes, plus
(E) upon a Redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary, the lesser of (i) the Fair Market Value of the Issuer’s proportionate interest in such Subsidiary immediately following such Redesignation, and (ii) the aggregate amount of the Issuer’s Investments in such Subsidiary to the extent such Investments reduced the Restricted Payments Basket and were not previously repaid or otherwise reducedconsequence thereof.
(b) The foregoing Notwithstanding the foregoing, the provisions of this Section 4.07 shall not prohibitprevent:
(1i) the payment by the Issuer or any Restricted Subsidiary of any dividend within 60 days after the date of declaration thereof, thereof if on the date of declaration the payment thereof would have complied with the provisions limitations of this Indenture on the date of declaration;
(2ii) the redemption purchase, repayment, redemption, repurchase, defeasance or other acquisition or retirement of any Equity Interests shares of the Issuer Company’s Capital Stock or any the Company’s or a Restricted Subsidiary in exchange Subsidiary’s Indebtedness for, or out of the net proceeds of the a substantially concurrent issuance and sale (other than a sale to a Subsidiary of the Company) of, Qualified Equity Interestsother shares of its Capital Stock (other than Disqualified Stock), provided that the proceeds of any such sale shall be excluded in any computation made under Section 4.07(a)(i)(C) above;
(3iii) the purchase, repayment, redemption, repurchase, defeasance or other than acquisition or retirement for value of Indebtedness, including premium, if any, with the proceeds of Refinancing Indebtedness;
(iv) payments or distributions pursuant to clause or in connection with a merger, consolidation or transfer of assets that complies with Section 4.13 hereof;
(8) belowv) any purchase, the redemption redemption, retirement or other acquisition for value of Equity Interests Capital Stock of the Issuer Company or any Subsidiary held by officers, directors officers or employees or former officers, directors officers or employees of the Company or any Subsidiary (or their transferees, estates or beneficiaries under their estates), upon their death, disability, retirement, severance or termination of employment or service; provided that the aggregate cash consideration paid for all such redemptions shall ) not to exceed (A) $500,000 in any calendar year and $5.0 million during any calendar year (with unused amounts being available to be used in the following calendar year, but not in any succeeding calendar year) plus (B) the amount of any net cash proceeds received by or contributed to the Issuer from the issuance and sale after aggregate since the Issue Date of Qualified Equity Interests of the Issuer to its officers, directors or employees that have not been applied to the payment of Restricted Payments pursuant to this clause (3), plus (C) the net cash proceeds of any “key-man” life insurance policies that have not been applied to the payment of Restricted Payments pursuant to this clause (3)Date;
(4vi) repurchases of Equity Interests that occur or are Capital Stock deemed to occur upon the exercise of stock options options, warrants or similar instruments if the Equity Interests such Capital Stock represents a portion of the exercise price thereofof such options, warrants or similar instruments;
(5vii) Restricted Payments pursuant to the Transactionspayment by the Company of cash in lieu of the issuance of fractional shares upon the exercise of options, warrants or similar instruments or upon the conversion or exchange of Capital Stock of the Company;
(6viii) Restricted Payments if after giving effect thereto the Issuer’s Net Leverage Ratio is not greater than 3.0 payment of dividends on Preferred Stock and Disqualified Stock up to 1.0;
(7) other Restricted Payments in an amount not to exceed $50.0 million less the amount of any Restricted Payments (as defined in the Senior Notes Indenture) deemed made on or after the Reference Date and on or prior to the Issue Date pursuant to Section 4.11(b)(7) of the Senior Notes Indenture; provided that Restricted Payments made pursuant to this clause (7) shall not exceed $25.0 million in the aggregate in any twelve-month period; or
(8) the purchase or retirement of Class B Common Stock of the Issuer from any Permitted Holder in an aggregate amount not to exceed of $10.0 million in any twelve-month periodfiscal year; provided that no proceeds immediately after giving effect to any declaration of such dividend, the Company could incur at least $1.00 of Indebtedness under the Consolidated Fixed Charge Coverage Ratio contained under Section 4.10 hereof;
(ix) payments not to exceed $40.0 million in the aggregate for the purchase, repayment, redemption, repurchase, defeasance or other acquisition or retirement for value of the Company’s junior subordinated notes due July 30, 2036 (or the related trust preferred securities issued by Beazer Homes Capital Trust I), as such securities may be amended or modified from the issuance and sale of Qualified Equity Interests used time to make a payment pursuant to clause (2) or (3)(B) above shall increase the Restricted Payments Basket.time; or
Appears in 1 contract
Sources: Indenture (Beazer Homes Usa Inc)
Limitations on Restricted Payments. (a) The Issuer Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, make any Restricted Payment if at the time of such Restricted Paymentunless:
(1) a no Default or Event of Default shall have occurred and be continuing at the time of or shall occur as a consequence thereofimmediately after giving effect to such Restricted Payment;
(2) immediately after giving effect to such Restricted Payment, the Issuer cannot Company could incur at least $1.00 of additional Indebtedness pursuant to the Coverage Ratio Exception; orand
(3) the amount of such Restricted Payment, when added to the aggregate amount of all other Restricted Payments made after the Issue Date (other than Restricted Payments made pursuant to clauses (2Section 4.09(b)(2), (3), (4), (5), (6), (7) or (8) of Section 4.11(b7)), exceeds does not exceed the sum (the “Restricted Payments Basket”) of (without duplication):
(A) $50,000,000, plus
(B) 50% of Consolidated Net Income for the period (taken as one accounting period) commencing on the first day of the fiscal quarter in which the Issue Date occurs from April 1, 2018 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 such Consolidated Net Income shall be a deficit, minus 100% of such aggregate deficit), plus
(BC) 100% of the aggregate net cash proceeds or the Fair Market Value (as determined by the Board of Directors of the Company) of any assets to be used in a Permitted Business received by the Issuer Company either (x) as contributions to the common equity of the Issuer Company after the Issue Date or (y) from the issuance and sale of Qualified Equity Interests after the Issue Date, other than (A) any such proceeds which are used to redeem Notes in accordance with paragraph 6(c) of the Notes or (B) any such proceeds or assets received from a Subsidiary of the Issuer, plus
(CD) the aggregate amount by which Indebtedness incurred by of the Issuer Company or any Restricted Subsidiary subsequent to the Issue Date is reduced on the IssuerCompany’s balance sheet upon the conversion or exchange (other than by a Subsidiary of the IssuerCompany) of Indebtedness into Qualified Equity Interests (less the amount of any cash, or the fair value of assets, distributed by the Issuer Company or any Restricted Subsidiary upon such conversion or exchange), plus
(DE) in the case of the disposition or repayment of or return on any Investment that was treated as a Restricted Payment made after the Issue Date, an amount (to the extent not included in the computation of Consolidated Net Income) equal to the lesser of (i) 100% of the aggregate amount received by the Issuer or any Restricted Subsidiary in cash or other property (valued at the Fair Market Value thereof) as the return of capital with respect to such Investment and (ii) the amount of such Investment that was treated as a Restricted Payment, in either case, less the cost of the disposition of such Investment and net of taxes, plus
(EF) upon a Redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary, the lesser of (i) the Fair Market Value of the IssuerCompany’s proportionate interest in such Subsidiary immediately following such Redesignation, and (ii) the aggregate amount of the IssuerCompany’s Investments in such Subsidiary to the extent such Investments reduced the amount available for subsequent Restricted Payments Basket under this Section 4.09(a)(3)(F) and were not previously repaid or otherwise reduced.
(b) The foregoing provisions of Section 4.09(a) shall not prohibit:
(1) the payment by the Issuer Company or any Restricted Subsidiary of any dividend or similar distribution within 60 days after the date of declaration thereof, if on the date of declaration the payment would have complied with the provisions of this Indenture Indenture;
(2) the redemption making of any Equity Interests of the Issuer or any Restricted Subsidiary Payment in exchange for, or out of the proceeds of the substantially concurrent issuance and sale of, Qualified Equity InterestsInterests (other than to the Company or any of its Subsidiaries);
(3) the repurchase, redemption, defeasance or other than pursuant acquisition or retirement for value of Subordinated Indebtedness of the Company or any Restricted Subsidiary in exchange for, or out of the proceeds of the substantially concurrent incurrence of, Refinancing Indebtedness permitted to clause be incurred under Section 4.08 and the other terms of this Indenture;
(8) below4) the repurchase, the redemption redemption, defeasance or other acquisition or retirement for value of Equity Interests of the Issuer Company held by officers, directors or employees or former officers, directors or employees (or their transferees, estates or beneficiaries under their estates), pursuant to any equity subscription agreement, stock option agreement, stockholders’ agreement or similar agreement or benefit plan of any kind or upon their bankruptcy or petition for bankruptcy, death, disability, retirement, severance or termination of employment or service; provided that the aggregate cash consideration paid for all such redemptions shall not exceed (A) $5.0 million 4,000,000 during any calendar year (with it being understood, however, that unused amounts being permitted to be paid pursuant to this proviso are available to be used in carried over to subsequent calendar years, so long as the following calendar year, but not in any succeeding calendar year) plus (B) the amount of any net cash proceeds received by or contributed to the Issuer from the issuance and sale after the Issue Date of Qualified Equity Interests of the Issuer to its officers, directors or employees that have not been consideration applied to the payment redemption of Restricted Payments Equity Interests pursuant to this clause (3), plus (CSection 4.09(b)(4) the net cash proceeds of shall in no event exceed $8,000,000 in any “key-man” life insurance policies that have not been applied to the payment of Restricted Payments pursuant to this clause (3calendar year);
(45) repurchases of Equity Interests that occur or are deemed to occur upon the exercise of stock options or stock appreciation rights if the Equity Interests represents represent a portion of the exercise price thereof;
(5) Restricted Payments pursuant to the Transactions;
(6) Restricted Payments if after giving effect thereto the Issuer’s Net Leverage Ratio is not greater than 3.0 repurchase of Equity Interests upon vesting of restricted stock, restricted stock units, performance share units or similar equity incentives to 1.0satisfy tax withholding or similar tax obligations with respect thereto;
(7) other additional Restricted Payments in an amount not to exceed $50.0 million less the amount of any Restricted Payments (as defined in the Senior Notes Indenture) deemed made on or after the Reference Date and on or prior to the Issue Date pursuant to Section 4.11(b)(7) of the Senior Notes Indenture; provided that aggregate amount, when taken together with all Restricted Payments made pursuant to this clause (7Section 4.09(b)(7) shall and then outstanding, does not exceed $25.0 million in the aggregate in any twelve-month period30,000,000; or
(8) the purchase payment of dividends on the Company’s Qualified Equity Interests (other than preferred stock) or retirement the payment of Class B Common Stock any dividend to any parent of the Issuer Company to fund the payment by such parent of a dividend on such entity’s Qualified Equity Interests (other than preferred stock) of up to 6% per annum of the net proceeds received by the Company from any Permitted Holder in an aggregate amount not public equity offering after the Issue Date of such Qualified Equity Interests of the Company or contributed to exceed $10.0 million in the Company as common equity capital by any twelve-month periodparent from any public equity offering of such Qualified Equity Interests of any direct or indirect parent of the Company; provided that no proceeds from the issuance and sale of Qualified Equity Interests used to make a payment pursuant to clause (2Section 4.09(b)(2) or (3)(B) above shall increase the Restricted Payments Basket, except to the extent the proceeds thereof exceed the amounts used to effect the transactions described therein. The amount of all Restricted Payments (other than cash) will be the Fair Market Value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company or a Restricted Subsidiary of the Company, as the case may be, pursuant to the Restricted Payment.
Appears in 1 contract
Limitations on Restricted Payments. (a) The Issuer shall Company will not, and shall will not permit any of its Restricted Subsidiary Subsidiaries to, make any Restricted Payment, directly or indirectly, make after the Issue Date of Securities of any Restricted Payment series if at the time of such Restricted Payment:
(1) a Default shall have occurred and be continuing or shall occur as a consequence thereof;
(2) the Issuer cannot incur $1.00 of additional Indebtedness pursuant to the Coverage Ratio Exception; or
(3i) the amount of such Restricted Payment (the amount of such Restricted Payment, if other than in cash, will be determined by the Board of Directors of the Company), when added to the aggregate amount of all other Restricted Payments made after the Issue Date (other than Restricted Payments made pursuant to clauses (2), (3), (4), (5), (6), (7) or (8) of Section 4.11(b))the Securities of any series, exceeds the sum of: (1) $50,000,000, plus (2) 50 percent of the “Restricted Payments Basket”) of (without duplication):
(A) 50% of Company's Consolidated Net Income for accrued during the period (taken as one accounting a single period) commencing on the first day of the fiscal quarter in 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 since January 1, 1995 (or, if such aggregate Consolidated Net Income shall be is a deficit, minus 100% 100 percent of such aggregate deficit), plus
plus (B3) 100% of the aggregate net cash proceeds received by the Issuer either (x) as contributions to the common equity of the Issuer after the Issue Date or (y) derived from the issuance and sale of Qualified Equity Interests after Capital Stock of the Issue Date, Company and its Restricted Subsidiaries that is not Disqualified Stock (other than (A) any such proceeds which are used a sale to redeem Notes in accordance with paragraph 6(c) of the Notes or (B) any such proceeds or assets received from a Subsidiary of the Issuer, plus
(CCompany) the aggregate amount by which Indebtedness incurred by the Issuer or any Restricted Subsidiary subsequent to after the Issue Date is reduced on of Securities of any series but only to the Issuer’s balance sheet upon the conversion or exchange extent not applied under clause (other than by a Subsidiary c) of the Issuerdefinition of "Restricted Payment" set forth in Section 1.02 hereof, plus (4) into Qualified Equity Interests (less 100 percent of the principal amount of any cashIndebtedness of the Company or a Restricted Subsidiary that is converted into or exchanged for Capital Stock of the Company that is not Disqualified Stock, or plus (5) 100 percent of the fair value of assets, distributed aggregate amounts received by the Issuer Company or any Restricted Subsidiary upon such conversion or exchange)the sale, plus
(D) in the case of the disposition or repayment liquidation (including by way of or return on dividends) of any Investment that was treated as a Restricted Payment made after the Issue Date, an amount (but only to the extent (x) not included in the computation of Consolidated Net IncomeSection 6.12(a)(i)(2) equal to the lesser of (i) 100% of the aggregate amount received by the Issuer or any Restricted Subsidiary in cash or other property (valued at the Fair Market Value thereof) as the return of capital with respect to such Investment above and (iiy) that the amount making of such Investment that was treated as constituted a Restricted PaymentInvestment made pursuant to this Section 6.12(a)(i), in either case, less the cost plus (6) 100 percent of the disposition principal amount of, or if issued at a discount the accreted value of, any Indebtedness or other obligation that is the subject of such Investment and net of taxes, plus
(E) upon a Redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary, the lesser of (i) the Fair Market Value of the Issuer’s proportionate interest in such Subsidiary immediately following such Redesignation, and (ii) the aggregate amount of the Issuer’s Investments in such Subsidiary to the extent such Investments reduced the Restricted Payments Basket and were not previously repaid or otherwise reduced.
(b) The foregoing provisions shall not prohibit:
(1) the payment guaranty by the Issuer or any Restricted Subsidiary of any dividend within 60 days after the date of declaration thereof, if on the date of declaration the payment would have complied with the provisions of this Indenture ;
(2) the redemption of any Equity Interests of the Issuer or any Restricted Subsidiary in exchange for, or out of the proceeds of the substantially concurrent issuance and sale of, Qualified Equity Interests;
(3) other than pursuant to clause (8) below, the redemption of Equity Interests of the Issuer held by officers, directors or employees or former officers, directors or employees (or their transferees, estates or beneficiaries under their estates), upon their death, disability, retirement, severance or termination of employment or service; provided that the aggregate cash consideration paid for all such redemptions shall not exceed (A) $5.0 million during any calendar year (with unused amounts being available to be used in the following calendar year, but not in any succeeding calendar year) plus (B) the amount of any net cash proceeds received by or contributed to the Issuer from the issuance and sale Company which is released after the Issue Date of Qualified Equity Interests Securities of the Issuer to its officersany series, directors or employees that have not been applied but only to the payment of Restricted Payments pursuant to this clause (3), plus (C) the net cash proceeds of any “key-man” life insurance policies that have not been applied to the payment of Restricted Payments pursuant to this clause (3);
(4) repurchases of Equity Interests that occur or are deemed to occur upon the exercise of stock options if the Equity Interests represents a portion of the exercise price thereof;
(5) Restricted Payments pursuant to the Transactions;
(6) Restricted Payments if after giving effect thereto the Issuer’s Net Leverage Ratio is not greater than 3.0 to 1.0;
(7) other Restricted Payments in an amount not to exceed $50.0 million less the amount of any Restricted Payments (as defined in the Senior Notes Indenture) deemed made on or after the Reference Date and on or prior to the Issue Date pursuant to Section 4.11(b)(7) of the Senior Notes Indenture; provided that Restricted Payments made pursuant to this clause (7) shall not exceed $25.0 million in the aggregate in any twelve-month period; or
(8) the purchase or retirement of Class B Common Stock of the Issuer from any Permitted Holder in an aggregate amount not to exceed $10.0 million in any twelve-month period; provided that no proceeds from the issuance and sale of Qualified Equity Interests used to make a payment pursuant to clause (2) or (3)(B) above shall increase the Restricted Payments Basket.extent that
Appears in 1 contract
Limitations on Restricted Payments. (a) The Issuer shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, make any Restricted Payment if at the time of such Restricted Payment:
(1) a Default shall have occurred and be continuing or shall occur as a consequence thereof;
(2) after giving pro forma effect to such Restricted Payment as if such Restricted Payment had been made at the beginning of the applicable Four Quarter Period, the Issuer canis not able to incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) pursuant to the Coverage Ratio Exception; or
(3) the amount of such Restricted Payment, when added to the aggregate amount of all other Restricted Payments made after the Issue Date (other than Restricted Payments made pursuant to clauses (2), (3), (4), (5), (6), (7) or (8) 9) of clause (b) of this Section 4.11(b)4.11), exceeds the sum (the “Restricted Payments Basket”) of (without duplication):
(A) 50% of Consolidated Net Income for the period (taken as one accounting period) commencing on the first day of the fiscal quarter in 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 such Consolidated Net Income shall be a deficit, minus 100% of such aggregate deficit), plus
(B) 100% of (A) (i) the aggregate net cash proceeds and (ii) the Fair Market Value of (x) marketable securities (other than marketable securities of the Issuer), (y) Equity Interests of a Person (other than the Issuer or an Affiliate of the Issuer) engaged in a Permitted Business and (z) other assets used in any Permitted Business, in the case of clauses (i) and (ii), received by the Issuer either (x) as contributions to the common equity of the Issuer after since the Issue Date as a contribution to its common equity capital or (y) from the issuance and issue or sale of Qualified Equity Interests after of the Issue Date, Issuer or from the issue or sale of convertible or exchangeable Disqualified Equity Interests or convertible or exchangeable debt securities of the Issuer that have been converted into or exchanged for such Qualified Equity Interests (other than (A) any such proceeds which are used Equity Interests or debt securities sold to redeem Notes in accordance with paragraph 6(c) of the Notes or (B) any such proceeds or assets received from a Subsidiary of the Issuer), (B) the aggregate net cash proceeds, if any, received by the Issuer or any of its Restricted Subsidiaries upon any conversion or exchange described in clause (A) above and (C) the aggregate net cash proceeds of the underwritten common stock offering completed by the Issuer on September 30, 2009, plus
(C) 100% of (A) the aggregate amount by which Indebtedness incurred by (other than any Subordinated Indebtedness) of the Issuer or any Restricted Subsidiary subsequent to the Issue Date is reduced on the Issuer’s consolidated balance sheet upon the conversion or exchange (other than by a Subsidiary after the Issue Date of the Issuer) any such Indebtedness into or for Qualified Equity Interests of the Issuer and (less B) the amount of any cashaggregate net cash proceeds, or the fair value of assetsif any, distributed received by the Issuer or any of its Restricted Subsidiary Subsidiaries upon such any conversion or exchange)exchange described in clause (A) above, plus
(D) in with respect to Restricted Investments made by the case of the disposition or repayment of or return on any Investment that was treated as a Issuer and its Restricted Payment made Subsidiaries after the Issue Date, an amount (to the extent not included in the computation of Consolidated Net Income) equal to the lesser sum, without duplication, of (A) the net reduction in such Restricted Investments in any Person resulting from (i) 100% repayments of the aggregate amount received by loans or advances, or other transfers of assets, in each case to the Issuer or any Restricted Subsidiary, (ii) other repurchases, repayments or redemptions of such Restricted Investments, (iii) the sale of any such Restricted Investment to a purchaser other than the Issuer or a Subsidiary in cash or other property (valued at iv) the Fair Market Value thereofrelease of any guarantee (except to the extent any amounts are paid under such guarantee) as the return of capital that constituted a Restricted Investment plus (B) with respect to any Unrestricted Subsidiary designated as such Investment after the Issue Date and (ii) the amount of such Investment that was treated redesignated as a Restricted PaymentSubsidiary after the Issue Date, in either case, less the cost of the disposition of such Investment and net of taxes, plus
(E) upon a Redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary, the lesser of (i) the Fair Market Value of the Issuer’s proportionate interest Investment in such Subsidiary immediately following held by the Issuer or any of its Restricted Subsidiaries at the time of such Redesignation, and (ii) the aggregate amount of the Issuer’s Investments in such Subsidiary to the extent such Investments reduced the Restricted Payments Basket and were not previously repaid or otherwise reducedredesignation.
(b) The foregoing Notwithstanding the foregoing, the provisions shall set forth in clause (a) of this Section 4.11 will not prohibit:
(1) the payment by of (a) any dividend or redemption payment or the Issuer or any Restricted Subsidiary making of any dividend distribution within 60 days after the date of declaration thereofthereof if, if on the date of declaration declaration, the payment dividend, redemption or distribution payment, as the case may be, would have complied with the provisions of this Indenture or (b) any dividend or similar distribution by a Restricted Subsidiary to the holders of its Equity Interests on a pro rata basis;
(2) the redemption or acquisition of any Equity Interests of the Issuer or any Restricted Subsidiary in exchange for, or out of the proceeds of the substantially concurrent issuance and sale of, Qualified Equity Interests;
(3) the purchase, repurchase, redemption, defeasance or other than acquisition or retirement for value of Subordinated Indebtedness of the Issuer or any Restricted Subsidiary (including the payment of any required premium and any fees and expenses incurred in connection with such purchase, repurchase, redemption, defeasance, other acquisition or retirement for value) (a) in exchange for, or out of the proceeds of the substantially concurrent issuance and sale of, Qualified Equity Interests, (b) in exchange for, or out of the proceeds of the substantially concurrent incurrence of, Refinancing Indebtedness permitted to be incurred under Section 4.10 and the other terms of this Indenture or (c) upon a Change of Control or in connection with an Asset Sale to the extent required by the agreement governing such Subordinated Indebtedness but only if the Issuer shall have complied with Section 4.12 and Section 4.15 and purchased all Notes validly tendered pursuant to clause the relevant offer prior to purchasing, repurchasing, redeeming, defeasing or acquiring or retiring for value such Subordinated Indebtedness;
(8) below4) the redemption, the redemption repurchase or other acquisition or retirement for value of Equity Interests of the Issuer held by officers, directors or employees or former officers, directors or employees (or their transferees, estates or beneficiaries under their estates), either (x) upon their any such individual’s death, disability, retirement, severance or termination of employment or serviceservice or (y) pursuant to any equity subscription agreement, stock option agreement, stockholders’ agreement or similar agreement; provided provided, in any case, that the aggregate cash consideration paid for all such redemptions redemptions, repurchases or other acquisitions or retirements shall not exceed (A) $5.0 10.0 million during any calendar year (with unused amounts in any calendar year being available carried forward to be used in the following next succeeding calendar year, year but not in any succeeding calendar yearsubsequent years) plus (B) the amount of any net cash proceeds received by or contributed to the Issuer from the issuance and sale after the Issue Date of Qualified Equity Interests of the Issuer to its officers, directors or employees that have not been applied to the payment of Restricted Payments pursuant to this clause (34), plus (C) the net cash proceeds of any “key-man” life insurance policies that have not been applied to the payment of Restricted Payments pursuant to this clause (34);
(4a) repurchases repurchases, redemptions or other acquisitions or retirements for value of Equity Interests that occur or are deemed to occur upon the exercise of stock options if the options, warrants, rights to acquire Equity Interests represents or other convertible securities to the extent such Equity Interests represent a portion of the exercise or exchange price thereof;
thereof and (5b) Restricted Payments pursuant to the Transactionsany repurchases, redemptions or other acquisitions or retirements for value of Equity Interests made in lieu of withholding taxes in connection with any exercise or exchange of stock options, warrants or other similar rights;
(6) Restricted Payments if after giving effect thereto dividends on Preferred Stock or Disqualified Equity Interests issued in compliance with Section 4.10 to the Issuer’s Net Leverage Ratio is not greater than 3.0 to 1.0extent such dividends are included in the definition of Consolidated Interest Expense;
(7) other Restricted Payments the payment of cash in an amount not lieu of fractional Equity Interests;
(8) payments or distributions to exceed $50.0 million less the amount of any Restricted Payments (as defined in the Senior Notes Indenture) deemed made on or after the Reference Date and on or prior to the Issue Date dissenting stockholders pursuant to Section 4.11(b)(7) applicable law in connection with a merger, consolidation or transfer of assets that complies with the Senior Notes Indenture; provided that Restricted Payments made pursuant to this clause (7) shall not exceed $25.0 million in the aggregate in any twelve-month periodprovisions of Article 5; or
(8) the purchase or retirement 9) payment of Class B Common Stock of the Issuer from any Permitted Holder other Restricted Payments in an aggregate amount not to exceed $10.0 million in any twelve-month period25.0 million; provided that (a) in the case of any Restricted Payment pursuant to clauses (3), (4) or (9) above, no proceeds from the Default shall have occurred and be continuing or occur as a consequence thereof and (b) no issuance and sale of Qualified Equity Interests used to make a payment pursuant to clause clauses (2), (3) or (3)(B4)(B) above shall increase the Restricted Payments Basket.
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Sources: Indenture (Hercules Offshore, Inc.)