million. The preceding provisions shall not prohibit: (i) the payment of any dividend within 60 days after the date of declaration thereof, if at date of declaration, such payment would have complied with the provisions of this Indenture; (ii) the redemption, repurchase, retirement, defeasance or other acquisition of any subordinated Indebtedness of the Company or any Guarantor or of any Equity Interests of the Company in exchange for, or out of the net cash proceeds of the substantially concurrent sale, issuance of or contribution for, (other than to a Restricted Subsidiary of the Company), Equity Interests of the Company (other than Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such payment, redemption, repurchase, retirement, defeasance, other acquisition or dividend or distribution shall be excluded from clause (c) of the preceding paragraph; (iii) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the defeasance, redemption, repurchase or other acquisition of subordinated Indebtedness with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness; (iv) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the payment of any dividend or distribution by a Restricted Subsidiary of the Company to the holders of its common Equity Interests on a pro rata basis; (v) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company held by any present, former or future employee, director or Consultant of the Company's (or any of its Restricted Subsidiaries or any parent of the Company) pursuant to any management equity subscription agreement or stock option agreement in effect as of the date of this Indenture or any other similar agreement; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall not exceed $2.0 million in any twelve-month period (with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $4.0 million in any calendar year); provided that such amount in any calendar year may be increased by an amount not to exceed (A) the cash proceeds from the sale of Equity Interests of the Company, any parent of the Company or any of its Restricted Subsidiaries to present, former or future directors, Consultants or employees of the Company, its Restricted Subsidiaries or any parent of the Company that occurred since February 20, 2001 (to the extent the cash proceeds from the sale of such Equity Interest have not otherwise been included in clause (c) of the immediately preceding paragraph), plus (B) the cash proceeds of key man life insurance policies received by the Company, its Restricted Subsidiaries or any parent of the Company since February 20, 2001; and provided that cancellation of Indebtedness owing to the Company from present, former or future directors, Consultants, or employees of the Company, any of its Restricted Subsidiaries or any parent of the Company the proceeds of which were used solely to purchase Equity Interests of the Company will not be deemed to constitute a Restricted Payment so long as the value of such Equity Interests issued did not increase clause (c) of the preceding paragraph; (vi) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, Restricted Investments made after the date of this Indenture having an aggregate Fair Market Value, taken together with all other Investments made pursuant to this clause (vi) and, without duplication, Investments made pursuant to the this clause (vi) and, without duplication, Investments made pursuant to the comparable clause of the indentures relating to the Existing Notes that are at that time outstanding (without giving effect to any write-up, write-off or write-down), not to exceed 5% of the Company's Consolidated Tangible Assets as of the end of the fiscal quarter most recently completed (with Fair Market Value of each Investment being measured at the time made and without giving effect to subsequent changes in value); (vii) repurchases of Equity Interests deemed to occur upon exercise of stock options if such Equity Interests represent a portion of the exercise price of such options; (viii) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the payment of dividends on the Company's Capital Stock of up to 6% per annum of the net proceeds received by the Company in its March, 2002 initial public offering; (ix) Investments in Unrestricted Subsidiaries that are made with Excluded Contributions; (x) non-cash Investments in Unrestricted Subsidiaries in the form of administrative, financial, accounting, management, or other similar services (together with a non-cash allocation of corporate overhead), in each case in the ordinary course of business; (xi) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the payment of dividends on Disqualified Stock which is issued in accordance with Section 4.09 hereof; and (xii) transactions contemplated by the offering memorandum dated September 24, 2003 in connection with the issuance of the Notes under the caption "Use of Proceeds". The amount of all Restricted Payments (other than cash) shall be the Fair Market Value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued to or by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment; provided that, notwithstanding the other provisions of this Indenture, with respect to this covenant, an MAI appraiser, accounting firm or valuation firm with experience in such valuation and not affiliated with the Company shall be required if the fair market value of such Restricted Payment or Restricted Payments for any series of transactions exceeds $2.0 million. At least quarterly, the Company shall deliver to the Trustee an Officers' Certificate stating that all Restricted Payments during such quarter were permitted and setting forth the basis upon which the calculations required by this Section 4.07 were computed, together with a copy of any fairness opinion or appraisal required by this Indenture. If a Guarantee constituted a Restricted Investment at the time made, then the payment under such Guarantee shall not constitute an additional Restricted Investment. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default or an Event of Default. In the event of any such designation, all outstanding Investments owned by the Company and its Restricted Subsidiaries in the Subsidiary so designated shall be deemed to be an Investment made as of the time of such designation and shall reduce the amount available for Restricted Payments under the first paragraph of this Section 4.07 or Permitted Investments, as applicable. All such outstanding Investments shall be deemed to constitute Restricted Investments in an amount equal to the fair market value of such Investments at the time of such designation. Such designation shall only be permitted if such Restricted Payment would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if such redesignation would not cause a Default or an Event of Default. Any such designation by the Board of Directors shall be evidenced to the Trustee by filing with the Trustee a certified copy of the board resolution giving effect to such designation and an Officers' Certificate certifying that such designation complied with the foregoing conditions and was permitted by this Section 4.07. If, at any time, any Unrestricted Subsidiary would fail to meet the definition of an Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary of the Company as of such date (and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09 hereof, the Company shall be in default of Section 4.09 hereof). The Board of Directors of the Company may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided that such designation shall be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of the Company of any outstanding Indebtedness of such Unrestricted Subsidiary and such designation shall only be permitted if (a) such Indebtedness is permitted under Section 4.09 hereof, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period, and (b) no Default or Event of Default would be in existence following such designation.
Appears in 2 contracts
Sources: Indenture (Wci Communities Inc), Indenture (Communities Home Builders Inc)
million. The preceding foregoing provisions shall will not prohibit: prohibit (i) the payment of any dividend within 60 days after the date of declaration thereof, if at the date of declaration, declaration thereof such payment would have complied with the provisions of this Indenture; (iiii)(A) the redemption, repurchase, retirement, defeasance or other acquisition of any subordinated Indebtedness of the Company or any Guarantor or retirement of any Equity Interests of the Company (the "Retired Equity Interests") either in exchange for, for or out of the net cash proceeds of the substantially concurrent sale, issuance of or contribution for, sale (other than to a Restricted Subsidiary Subsidiary) of the Company), other Equity Interests of the Company (the "Refunding Equity Interests") other than Disqualified any Redeemable Stock and (B) if the Retired Equity Interest consti- tuted Qualified Preferred Stock); provided that , the declaration and payment of dividends on the Refunding Equity Interest in an aggregate amount per year no greater than the aggregate amount of any dividends per year that was declarable and payable on such net cash proceeds that are utilized for any Retired Equity Interest immediately prior to such payment, redemption, repurchase, retirement, defeasance, other acquisition or dividend or distribution shall retirement to the extent such Refunding Equity Interest is designated to be excluded from clause (c) Qualified Preferred Stock by the Company at the time of the preceding paragraphits issuance; (iii) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the defeasance, redemption, repurchase or other acquisition of subordinated Indebtedness with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness; (iv) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the payment of any dividend or distribution by a Restricted Subsidiary of the Company to the holders of its common Equity Interests on a pro rata basis; (v) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company issued to employees, officers or directors of the Company and its Subsidiaries pursuant to agreements containing provisions for the repurchase of such Equity Interests upon death, disability or termination of employment or directorship of such Persons, or in accordance with the Company's ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policy, not to exceed $5.0 million in any Restricted Subsidiary fiscal year PLUS the aggregate cash proceeds from any reissuance during such fiscal year of Equity Interests by the Company to employees, officers or directors of the Company and its Subsidiaries PLUS the aggregate cash proceeds from any payments on life insurance policies with respect to any employees, officers or directors of the Company and its Subsidiaries which proceeds are used to purchase the Equity Interests of the Company held by any presentsuch employees, former officers or future employee, director directors; (iv) the declaration and payment of dividends to holders of any class or Consultant series of the Company's preferred stock issued after the Issue Date (or any including, without limitation, the declaration and payment of its Restricted Subsidiaries or any parent dividends on Refunding Equity Interests in excess of the Company) dividends declarable and payable thereon pursuant to any management equity subscription agreement or stock option agreement in effect as clause (ii) of this paragraph); PROVIDED that at the time of such issuance the Company's Fixed Charge Coverage Ratio for the four full fiscal quarters ending immediately prior to the date of this Indenture or such issuance would have been at least 1.25 to 1, determined on a PRO FORMA basis as if such issuance was at the beginning of such four-quarter period, and at the time of issuance, such preferred stock is designated by the Company to be Qualified Preferred Stock; and (v) an Investment in any other similar agreement; provided that the aggregate price paid Unrestricted Subsidiary either in exchange for all such repurchased, redeemed, acquired or retired Equity Interests shall not exceed $2.0 million in any twelve-month period of the Company (with unused amounts in any calendar year being carried over to succeeding calendar years subject other than Redeemable Stock) or out of the proceeds of the sale (other than to a maximum (without giving effect to the following provisoRestricted Subsidiary) of $4.0 million in any calendar year); provided that such amount in any calendar year may be increased by an amount not to exceed (A) the cash proceeds from the sale of Equity Interests of the Company, any parent of Company (other than Redeemable Stock) received by the Company or any not more than 12 months prior to the date of its Restricted Subsidiaries to present, former or future directors, Consultants or employees of the Company, its Restricted Subsidiaries or any parent of the Company that occurred since February 20, 2001 such Investment (to the extent the cash proceeds from the such sale of such Equity Interest have Interests has not otherwise previously been included in any calculation under clause (c) above for purposes of permitting a Restricted Payment); PROVIDED that, in the immediately preceding paragraphcases of clauses (iii) (other than with respect to the repurchase of Equity Interests with insurance proceeds), plus (Biv) the cash proceeds of key man life insurance policies received by the Companyand (v), its Restricted Subsidiaries or any parent of the Company since February 20, 2001; and provided that cancellation of Indebtedness owing to the Company from present, former or future directors, Consultants, or employees of the Company, any of its Restricted Subsidiaries or any parent of the Company the proceeds of which were used solely to purchase Equity Interests of the Company will not be deemed to constitute a Restricted Payment so long as the value of such Equity Interests issued did not increase clause (c) of the preceding paragraph; (vi) so long as no Default or Event of Default has shall have occurred and is be continuing or would be caused thereby, Restricted Investments made after the date of this Indenture having an aggregate Fair Market Value, taken together with all other Investments made pursuant to this clause (vi) and, without duplication, Investments made pursuant to the this clause (vi) and, without duplication, Investments made pursuant to the comparable clause of the indentures relating to the Existing Notes that are at that time outstanding (without giving effect to any write-up, write-off or write-down), not to exceed 5% of the Company's Consolidated Tangible Assets as of the end of the fiscal quarter most recently completed (with Fair Market Value of each Investment being measured at the -44- time made and without giving effect to subsequent changes in value); (vii) repurchases of Equity Interests deemed to occur upon exercise of stock options if such Equity Interests represent a portion of the exercise price of such options; (viii) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the payment of dividends on the Company's Capital Stock of up to 6% per annum of the net proceeds received by the Company in its March, 2002 initial public offering; (ix) Investments in Unrestricted Subsidiaries that are made with Excluded Contributions; (x) non-cash Investments in Unrestricted Subsidiaries in the form of administrative, financial, accounting, management, or other similar services (together with a non-cash allocation of corporate overhead), in each case in the ordinary course of business; (xi) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the payment of dividends on Disqualified Stock which is issued in accordance with Section 4.09 hereof; and (xii) transactions contemplated by the offering memorandum dated September 24, 2003 in connection with the issuance of the Notes under the caption "Use of Proceeds". The amount of all Restricted Payments (other than cash) shall be the Fair Market Value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued to or by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment; provided that, notwithstanding the other provisions of this Indenture, with respect to this covenant, an MAI appraiser, accounting firm or valuation firm with experience in such valuation and not affiliated with the Company shall be required if the fair market value of such Restricted Payment or Restricted Payments for any series of transactions exceeds $2.0 million. At least quarterly, the Company shall deliver to the Trustee an Officers' Certificate stating that all Restricted Payments during such quarter were permitted and setting forth the basis upon which the calculations required by this Section 4.07 were computed, together with a copy of any fairness opinion or appraisal required by this Indenture. If a Guarantee constituted a Restricted Investment at the time made, then the payment under such Guarantee shall not constitute an additional Restricted Investment. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default or an Event of Defaultoccur immediately after giving effect thereto. In determining the event of any such designation, all outstanding Investments owned by the Company and its Restricted Subsidiaries in the Subsidiary so designated shall be deemed to be an Investment made as of the time of such designation and shall reduce the aggregate amount available expended for Restricted Payments in accordance with clause (c) above, (1) no amounts expended under clause (iii) (only with respect to the first use of insurance proceeds to repurchase Equity Interests) of the immediately preceding paragraph of this Section 4.07 or Permitted Investments, as applicable. All such outstanding Investments shall be deemed to constitute Restricted Investments in an amount equal included and (2) 100% of the amounts expended under clauses (i), (ii), (iii) (other than with respect to the fair market value repurchase of such Investments at Equity Interests with insurance proceeds), (iv) and (v) of the time of such designation. Such designation shall only be permitted if such Restricted Payment would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if such redesignation would not cause a Default or an Event of Default. Any such designation by the Board of Directors immediately preceding paragraph shall be evidenced to the Trustee by filing with the Trustee a certified copy of the board resolution giving effect to such designation and an Officers' Certificate certifying that such designation complied with the foregoing conditions and was permitted by this Section 4.07. If, at any time, any Unrestricted Subsidiary would fail to meet the definition of an Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary of the Company as of such date (and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09 hereof, the Company shall be in default of Section 4.09 hereof). The Board of Directors of the Company may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided that such designation shall be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of the Company of any outstanding Indebtedness of such Unrestricted Subsidiary and such designation shall only be permitted if (a) such Indebtedness is permitted under Section 4.09 hereof, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period, and (b) no Default or Event of Default would be in existence following such designationincluded.
Appears in 2 contracts
Sources: Indenture (Big Flower Press Holdings Inc /Pred/), Indenture (Big Flower Holdings Inc/)
million. The preceding foregoing provisions shall will not prohibit: prohibit (i) the payment of any dividend within 60 days after the date of declaration thereof, if at said date of declaration, declaration such payment would have complied with the provisions of this Indenture; (ii) the redemption, repurchase, retirement, defeasance or other acquisition of any subordinated Indebtedness of the Company or any Guarantor or of any Equity Interests of the Company in exchange for, or out of the net cash proceeds of (x) the substantially concurrent sale, issuance of or contribution for, sale (other than to a Restricted Subsidiary of the Company)) of, other Equity Interests of the Company (other than any Disqualified Stock)) or (y) a substantially concurrent contribution of cash to the common equity of the Company; provided that the amount of any such net cash proceeds that are utilized for any such payment, redemption, repurchase, retirement, defeasance, defeasance or other acquisition or dividend or distribution shall be excluded from clause (c) (ii) of the preceding paragraph; (iii) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the defeasance, redemption, repurchase or other acquisition of subordinated Indebtedness with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness; (iv) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the payment of any dividend or distribution by a Restricted Subsidiary of the Company to the holders of its common Equity Interests on a pro rata basis; and (v) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company held by any present, former or future employee, director or Consultant member of the Company's (or any of its Restricted Subsidiaries Subsidiaries') management (or any parent estate, heir or legatee of the Company) pursuant to any management equity subscription agreement or stock option agreement in effect as of the date of this Indenture or any other similar agreementsuch member); provided that the aggregate price paid for all such repurchasedpurchased, redeemed, acquired or retired Equity Interests shall not exceed $2.0 million 250,000 in any twelve-month period (with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $4.0 million in any calendar year); provided that such amount in any calendar year may be increased by an amount not to exceed (A) the cash proceeds from the sale of Equity Interests of the Company, any parent of the Company or any of its Restricted Subsidiaries to present, former or future directors, Consultants or employees of the Company, its Restricted Subsidiaries or any parent of the Company that occurred since February 20, 2001 (to the extent the cash proceeds from the sale of such Equity Interest have not otherwise been included in clause (c) of the immediately preceding paragraph), plus (B) the cash proceeds of key man life insurance policies received by the Company, its Restricted Subsidiaries or any parent of the Company since February 20, 2001; and provided that cancellation of Indebtedness owing to the Company from present, former or future directors, Consultants, or employees of the Company, any of its Restricted Subsidiaries or any parent of the Company the proceeds of which were used solely to purchase Equity Interests of the Company will not be deemed to constitute a Restricted Payment so long as the value of such Equity Interests issued did not increase clause (c) of the preceding paragraph; (vi) so long as no Default or Event of Default has shall have occurred and is be continuing or immediately after such transaction. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would be caused therebynot cause a Default. For purposes of making such determination, all outstanding Investments by the Company and its Restricted Investments made after the date of this Indenture having an aggregate Fair Market Value, taken together with all other Investments made pursuant to this clause Subsidiaries (vi) and, without duplication, Investments made pursuant except to the this clause (viextent repaid in cash) andin the Subsidiary so designated will be deemed to be Restricted Payments or, without duplication, Investments made pursuant to at the comparable clause election of the indentures relating to the Existing Notes that are at that time outstanding Company Permitted Investments (without giving effect to any write-up, write-off or write-down), not to exceed 5% of the Company's Consolidated Tangible Assets as of the end of the fiscal quarter most recently completed (if in compliance with Fair Market Value of each Investment being measured such definition) at the time made of such designation and without giving effect to subsequent changes in value); (vii) repurchases will reduce the amount available for Restricted Payments under the first paragraph of Equity Interests this covenant or Permitted Investments as applicable. All such outstanding Investments will be deemed to occur upon exercise constitute Investments in an amount equal to the fair market value of stock options such Investments at the time of such designation. Such designation will only be permitted if such Equity Interests represent a portion of the exercise price of such options; (viii) so long Restricted Payment or Permitted Investments, as no Default or Event of Default has occurred and is continuing or applicable, would be caused thereby, permitted at such time and if such Restricted Subsidiary otherwise meets the payment definition of dividends on the Company's Capital Stock of up to 6% per annum of the net proceeds received by the Company in its March, 2002 initial public offering; (ix) Investments in an Unrestricted Subsidiaries that are made with Excluded Contributions; (x) non-cash Investments in Unrestricted Subsidiaries in the form of administrative, financial, accounting, management, or other similar services (together with a non-cash allocation of corporate overhead), in each case in the ordinary course of business; (xi) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the payment of dividends on Disqualified Stock which is issued in accordance with Section 4.09 hereof; and (xii) transactions contemplated by the offering memorandum dated September 24, 2003 in connection with the issuance of the Notes under the caption "Use of Proceeds"Subsidiary. The amount of all Restricted Payments (other than cash) shall be the Fair Market Value fair market value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued to or by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment; provided that, notwithstanding the other provisions of this Indenture, with respect to this covenant, an MAI appraiser, accounting firm or valuation firm with experience in such valuation and not affiliated with the Company shall be required if the . The fair market value of such any non-cash Restricted Payment shall be determined by the Board of Directors whose resolution with respect thereto shall be delivered to the Trustee, such determination to be based upon an opinion or Restricted Payments for any series appraisal issued by an accounting, appraisal or investment banking firm of transactions national standing if such fair market value exceeds $2.0 5.0 million. At least quarterlyNot later than the date of making any Restricted Payment, the Company shall deliver to the Trustee an Officers' Certificate stating that all such Restricted Payments during such quarter were Payment is permitted and setting forth the basis upon which the calculations required by this Section 4.07 were computed, together with a copy of any fairness opinion or appraisal required by this Indenture. If a Guarantee constituted a Restricted Investment at the time made, then the payment under such Guarantee shall not constitute an additional Restricted Investment. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default or an Event of Default. In the event of any such designation, all outstanding Investments owned by the Company and its Restricted Subsidiaries in the Subsidiary so designated shall be deemed to be an Investment made as of the time of such designation and shall reduce the amount available for Restricted Payments under the first paragraph of this Section 4.07 or Permitted Investments, as applicable. All such outstanding Investments shall be deemed to constitute Restricted Investments in an amount equal to the fair market value of such Investments at the time of such designation. Such designation shall only be permitted if such Restricted Payment would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if such redesignation would not cause a Default or an Event of Default. Any such designation by the Board of Directors shall be evidenced to the Trustee by filing with the Trustee a certified copy of the board resolution giving effect to such designation and an Officers' Certificate certifying that such designation complied with the foregoing conditions and was permitted by this Section 4.07. If, at any time, any Unrestricted Subsidiary would fail to meet the definition of an Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary of the Company as of such date (and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09 hereof, the Company shall be in default of Section 4.09 hereof). The Board of Directors of the Company may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided that such designation shall be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of the Company of any outstanding Indebtedness of such Unrestricted Subsidiary and such designation shall only be permitted if (a) such Indebtedness is permitted under Section 4.09 hereof, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period, and (b) no Default or Event of Default would be in existence following such designation.
Appears in 2 contracts
Sources: Indenture (Sun Medical Technologies Inc /Ca/), Indenture (Prime Medical Services Inc /Tx/)
million. The preceding foregoing provisions shall not prohibit: prohibit (i1) the payment of any dividend within 60 days after the date of declaration thereof, if at said date of declaration, declaration such payment would have complied with the provisions of this Indenture; (ii2) the redemption, repurchase, retirement, defeasance retirement or other acquisition of any Equity Interests or subordinated Indebtedness of the Company or any Guarantor or of any Equity Interests of the Company in exchange for, or out of the net cash proceeds of of, the substantially concurrent sale, issuance of or contribution for, sale (other than to a Restricted Subsidiary of the Company), ) of other Equity Interests of the Company (other than any Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such payment, redemption, repurchase, retirement, defeasance, retirement or other acquisition or dividend or distribution shall be excluded from clause (cC)(ii) of the preceding paragraph; (iii3) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the defeasance, redemption, redemption or repurchase or other acquisition of subordinated Indebtedness with the net cash proceeds from an incurrence of a substantially concurrent issuance of Permitted Refinancing IndebtednessDebt in accordance with the provisions of Section 4.09 hereof; (iv4) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the payment of any dividend or distribution by a Restricted Subsidiary of the Company to of advances under the holders of its common Equity Interests on a pro rata basis; (v) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company held by any present, former or future employee, director or Consultant of the Company's (or any of its Restricted Subsidiaries or any parent of the Company) pursuant to any management equity subscription agreement or stock option agreement Split Dollar Agreement in effect as of the date of this Indenture or any other similar agreement; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall not exceed $2.0 million in any twelve-month period (with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $4.0 million in any calendar year); provided that such amount in any calendar year may be increased by an amount not to exceed $250,000 in any four-quarter period; (A5) the cash proceeds repurchase or redemption from the sale of Equity Interests of the Company, any parent employees of the Company or any and its Subsidiaries (other than the Principal) of its Restricted Subsidiaries to present, former or future directors, Consultants or employees of the Company, its Restricted Subsidiaries or any parent Capital Stock of the Company that occurred in an amount not to exceed an aggregate of $5.0 million since February 20, 2001 (to the extent the cash proceeds from the sale of such Equity Interest have not otherwise been included in clause (c) of the immediately preceding paragraph), plus (B) the cash proceeds of key man life insurance policies received by the Company, its Restricted Subsidiaries or any parent of the Company since February 20, 2001; and provided that cancellation of Indebtedness owing to the Company from present, former or future directors, Consultants, or employees of the Company, any of its Restricted Subsidiaries or any parent of the Company the proceeds of which were used solely to purchase Equity Interests of the Company will not be deemed to constitute a Restricted Payment so long as the value of such Equity Interests issued did not increase clause (c) of the preceding paragraph; (vi) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, Restricted Investments made after the date of this Indenture having an aggregate Fair Market Value, taken together with all other Investments made pursuant to this clause (vi) and, without duplication, Investments made pursuant to the this clause (vi) and, without duplication, Investments made pursuant to the comparable clause of the indentures relating to the Existing Notes that are at that time outstanding (without giving effect to any write-up, write-off or write-down), not to exceed 5% of the Company's Consolidated Tangible Assets as of the end of the fiscal quarter most recently completed (with Fair Market Value of each Investment being measured at the time made and without giving effect to subsequent changes in value)Indenture; (vii6) repurchases of Equity Interests deemed to occur upon exercise of stock options if such Equity Interests represent a portion of the exercise price of such options; (viii) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the payment of dividends on the Company's Capital Series A or Series B Preferred Stock of up to 6% per annum of the net proceeds received by the Company in its March, 2002 initial public offering; (ix) Investments in Unrestricted Subsidiaries that are made with Excluded Contributions; (x) non-cash Investments in Unrestricted Subsidiaries in the form of administrative, financial, accounting, management, or other similar services (together with a non-cash allocation of corporate overhead), in each case in the ordinary course of business; (xi) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the payment of dividends on Disqualified Stock which is issued in accordance with the terms thereof as in effect on the Closing Date; provided, however, that cash dividends may not be paid on the Series A or Series B Preferred Stock pursuant to this clause (6) prior to July 1, 2002; (7) the issuance of Subordinated Exchange Notes in exchange for shares of the Series A or Series B Preferred Stock; provided that such issuance is permitted by Section 4.09 hereof; and (xii) transactions contemplated by 8) in the offering memorandum dated September 24event that the Company elects to issue Subordinated Exchange Notes in exchange for Series A or Series B Preferred Stock, 2003 cash payments made in connection with lieu of the issuance of the Subordinated Exchange Notes under the caption "Use of Proceeds". The having a face amount of all Restricted Payments (other less than cash) shall be the Fair Market Value on the date of the Restricted Payment of the asset(s) or securities proposed $1,000 and any cash payments representing accrued and unpaid dividends in respect thereof, not to be transferred or issued to or by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment; provided that, notwithstanding the other provisions of this Indenture, with respect to this covenant, an MAI appraiser, accounting firm or valuation firm with experience in such valuation and not affiliated with the Company shall be required if the fair market value of such Restricted Payment or Restricted Payments for any series of transactions exceeds exceed $2.0 million. At least quarterly, the Company shall deliver to the Trustee an Officers' Certificate stating that all Restricted Payments during such quarter were permitted and setting forth the basis upon which the calculations required by this Section 4.07 were computed, together with a copy of any fairness opinion or appraisal required by this Indenture. If a Guarantee constituted a Restricted Investment at the time made, then the payment under such Guarantee shall not constitute an additional Restricted Investment. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default or an Event of Default. In the event of any such designation, all outstanding Investments owned by the Company and its Restricted Subsidiaries 100,000 in the Subsidiary so designated shall be deemed to be an Investment made as of the time of such designation and shall reduce the amount available for Restricted Payments under the first paragraph of this Section 4.07 or Permitted Investments, as applicable. All such outstanding Investments shall be deemed to constitute Restricted Investments aggregate in an amount equal to the fair market value of such Investments at the time of such designation. Such designation shall only be permitted if such Restricted Payment would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if such redesignation would not cause a Default or an Event of Default. Any such designation by the Board of Directors shall be evidenced to the Trustee by filing with the Trustee a certified copy of the board resolution giving effect to such designation and an Officers' Certificate certifying that such designation complied with the foregoing conditions and was permitted by this Section 4.07. If, at any time, any Unrestricted Subsidiary would fail to meet the definition of an Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary of the Company as of such date (fiscal year; and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09 hereof, the Company shall be in default of Section 4.09 hereof). The Board of Directors of the Company may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided that such designation shall be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of the Company of any outstanding Indebtedness of such Unrestricted Subsidiary and such designation shall only be permitted if (a) such Indebtedness is permitted under Section 4.09 hereof, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period, and (b) no Default or Event of Default would be in existence following such designation.
Appears in 2 contracts
Sources: Indenture (Pegasus Satellite Communications Inc), Indenture (Pegasus Communications Corp /)
million. The preceding foregoing provisions shall will not prohibit: prohibit (i) the payment of any dividend within 60 days after the date of declaration thereof, if at said date of declaration, declaration such payment would have complied with the provisions of this Indenture; (ii) the redemption, repurchase, retirement, defeasance or other acquisition of any subordinated Indebtedness or Equity Interests of the Company or any Guarantor or of any Equity Interests of the Company in exchange for, or out of the net cash proceeds of the substantially concurrent sale, issuance of or contribution for, sale (other than to a Restricted Subsidiary of the Company)) of, other Equity Interests of the Company (other than any Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such payment, redemption, repurchase, retirement, defeasance, defeasance or other acquisition or dividend or distribution shall be excluded from clause (cc)(ii) of the preceding paragraph; (iii) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the defeasance, redemption, repurchase repurchase, retirement or other acquisition of subordinated Indebtedness in exchange for, or with the net cash proceeds from from, an incurrence of Permitted Refinancing Indebtedness; (iv) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the payment of any dividend (or the making of a similar distribution or redemption) by a Restricted Subsidiary of the Company to the holders of its common Equity Interests on a pro rata basis; (v) so long as no Default or Event of Default has shall have occurred and is continuing or would be caused therebycontinuing, the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company Company, Holdings or any Restricted Subsidiary of the Company Company, held by any present, former or future employee, director or Consultant member of the Company's (or any of its Restricted Subsidiaries Subsidiaries') management, employees or any parent of the Company) consultants pursuant to any management management, employee or consultant equity subscription agreement or stock option agreement in effect as of the date of this Indenture or any other similar agreementhereof; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall not exceed (1) $2.0 1.5 million in any twelve-month period and (with unused amounts 2) in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) aggregate, the sum of $4.0 million in any calendar year); provided that such amount in any calendar year may be increased by an amount not to exceed (A) the cash proceeds from the sale of Equity Interests of the Company, any parent of the Company or any of its Restricted Subsidiaries to present, former or future directors, Consultants or employees of the Company, its Restricted Subsidiaries or any parent of the Company that occurred since February 20, 2001 (to the extent the cash proceeds from the sale of such Equity Interest have not otherwise been included in clause (c) of the immediately preceding paragraph), plus $7.0 million and (B) the aggregate cash proceeds of key man life insurance policies received by the Company, its Restricted Subsidiaries Company from any reissuance of Equity Interests by Holdings or any parent the Company to members of management of the Company since February 20, 2001; and its Subsidiaries (provided that cancellation of Indebtedness owing the cash proceeds referred to the Company from present, former or future directors, Consultants, or employees of the Company, any of its Restricted Subsidiaries or any parent of the Company the proceeds of which were used solely to purchase Equity Interests of the Company will not be deemed to constitute a Restricted Payment so long as the value of such Equity Interests issued did not increase in this clause (cB) shall be excluded from clause (c)(ii) of the preceding paragraph); (vi) payments required to be made under the Tax Sharing Agreement; (vii) distributions made by the Company on the date hereof, the proceeds of which are utilized solely to consummate the Recapitalization; (viii) the payment of dividends or the making of loans or advances by the Company to Holdings not to exceed $1.5 million in any fiscal year for costs and expenses incurred by Holdings in its capacity as a holding company or for services rendered by Holdings on behalf of the Company; (ix) so long as no Default or Event of Default has occurred and is continuing continuing, the declaration and payment of dividends to holders of any class or would be caused thereby, Restricted Investments made series of Disqualified Stock of the Company or any Guarantor issued after the date of this Indenture having an aggregate Fair Market Value, taken together hereof in accordance with all other Investments made pursuant to this clause Section 4.09; and (vi) and, without duplication, Investments made pursuant to the this clause (vi) and, without duplication, Investments made pursuant to the comparable clause of the indentures relating to the Existing Notes that are at that time outstanding (without giving effect to any write-up, write-off or write-down), not to exceed 5% of the Company's Consolidated Tangible Assets as of the end of the fiscal quarter most recently completed (with Fair Market Value of each Investment being measured at the time made and without giving effect to subsequent changes in value); (vii) repurchases of Equity Interests deemed to occur upon exercise of stock options if such Equity Interests represent a portion of the exercise price of such options; (viiix) so long as (A) no Default or Event of Default has occurred and is continuing or would be caused therebyand (B) immediately before and immediately after giving effect thereto, the payment Company would have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the first paragraph described under Section 4.09, (I) from and after April 15, 2003, payments of cash dividends to Holdings in an amount sufficient to enable Holdings to make payments of interest required to be made in respect of the Holdings Senior Discount Debentures in accordance with the terms thereof in effect on the Company's Capital Stock of up to 6% per annum of the net proceeds received by the Company in its Marchdate hereof, 2002 initial public offering; (ix) Investments in Unrestricted Subsidiaries provided that such interest payments are made with Excluded Contributions; (x) non-cash Investments in Unrestricted Subsidiaries in the form proceeds of administrativesuch dividends, financial, accounting, management, or other similar services (together with a non-cash allocation of corporate overhead), in each case in the ordinary course of business; (xi) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the payment of dividends on Disqualified Stock which is issued in accordance with Section 4.09 hereof; and (xiiII) transactions contemplated by the offering memorandum dated September 24, 2003 in connection with the issuance of the Notes under the caption "Use of Proceeds". The amount of all Restricted Payments (other than cash) shall be the Fair Market Value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued to or by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment; provided that, notwithstanding the other provisions of this Indenture, with respect to this covenant, an MAI appraiser, accounting firm or valuation firm with experience in such valuation and not affiliated with a $16.0 million cash dividend that the Company shall be entitled to declare and pay to Holdings on April 15, 2003 to enable Holdings to redeem $33.2 million aggregate principal amount at maturity of the Holdings Senior Discount Debentures as required if by the fair market value terms of the Holdings Senior Discount Debentures in accordance with such terms in effect on the date hereof, provided that such redemption is made with the proceeds of such Restricted Payment or Restricted Payments for any series of transactions exceeds $2.0 million. At least quarterly, the Company shall deliver to the Trustee an Officers' Certificate stating that all Restricted Payments during such quarter were permitted and setting forth the basis upon which the calculations required by this Section 4.07 were computed, together with a copy of any fairness opinion or appraisal required by this Indenture. If a Guarantee constituted a Restricted Investment at the time made, then the payment under such Guarantee shall not constitute an additional Restricted Investmentdividend. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default or an Event of Default. In the event For purposes of any making such designationdetermination, all outstanding Investments owned by the Company and its Restricted Subsidiaries (except to the extent repaid in cash) in the Subsidiary so designated shall will be deemed to be an Investment made as of Restricted Payments at the time of such designation and shall will reduce the amount available for Restricted Payments under the first paragraph of this Section 4.07 or Permitted Investments, as applicablecovenant. All such outstanding Investments shall will be deemed to constitute Restricted Investments in an amount equal to the greater of (i) the net book value of such Investments at the time of such designation and (ii) the fair market value of such Investments at the time of such designation. Such designation shall will only be permitted if such Restricted Payment would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. The Board amount of Directors may redesignate any Unrestricted Subsidiary all (i) Restricted Payments (other than cash) shall be the fair market value on the date of the Restricted Payment of the asset(s) or securities proposed to be a transferred or issued by the Company or such Restricted Subsidiary if Subsidiary, as the case may be, pursuant to the Restricted Payment and (ii) Qualified Proceeds (other than cash) shall be the fair market value on the date of receipt thereof by the Company of such redesignation would not cause a Default or an Event Qualified Proceeds. The fair market value of Default. Any such designation any non-cash Restricted Payment and Qualified Proceeds shall be determined by the Board of Directors whose resolution with respect thereto shall be evidenced delivered to the Trustee, such determination to be based upon an opinion or appraisal issued by an accounting, appraisal or investment banking firm of national standing, if such fair market value exceeds $10.0 million. Not later than the date of making any Restricted Payment, the Company shall deliver to the Trustee by filing with the Trustee a certified copy of the board resolution giving effect to such designation and an Officers' Certificate certifying stating that such designation complied Restricted Payment is permitted and setting forth the basis upon which the calculations required by Section 4.07 were computed, together with the foregoing conditions and was permitted a copy of any fairness opinion or appraisal required by this Section 4.07. If, at any time, any Unrestricted Subsidiary would fail to meet the definition of an Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary of the Company as of such date (and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09 hereof, the Company shall be in default of Section 4.09 hereof). The Board of Directors of the Company may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided that such designation shall be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of the Company of any outstanding Indebtedness of such Unrestricted Subsidiary and such designation shall only be permitted if (a) such Indebtedness is permitted under Section 4.09 hereof, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period, and (b) no Default or Event of Default would be in existence following such designationIndenture.
Appears in 2 contracts
Sources: Indenture (Diamond Brands Inc), Indenture (Diamond Brands Operating Corp)
million. The preceding foregoing provisions shall will not prohibit: prohibit (ia) the payment of any dividend within 60 days after the date of declaration thereof, if at said date of declaration, declaration such payment would have complied with the provisions of this Indenture, the Series A/B Indenture, the Series D Indenture and the Series F Indenture; (iib) the redemption, repurchase, retirement, defeasance or other acquisition of any subordinated Indebtedness of the Company or any Guarantor or of any Equity Interests of the Company in exchange for, or out of the net cash proceeds of the substantially concurrent sale, issuance of or contribution for, sale (other than to a Restricted Subsidiary of the Company)) of, other Equity Interests of the Company (other than any Disqualified Stock); , provided that the amount of any such net cash proceeds that are utilized for any such payment, redemption, repurchase, retirement, defeasance, defeasance or other acquisition or dividend or distribution shall be excluded from clause (ciii)(B) of the preceding paragraph; (iiic) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the defeasance, redemption, repurchase repurchase, retirement or other acquisition of subordinated Indebtedness with the net cash proceeds from an incurrence of of, or in exchange for, Permitted Refinancing Indebtedness; (ivd) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the payment of any dividend or distribution by a Restricted Subsidiary of the Company to the holders of its common Equity Interests on a pro rata basisto the Company or any Wholly Owned Restricted Subsidiary; (ve) so long as no Default or Event of Default has shall have occurred and is continuing or would be caused therebycontinuing, the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company held by any present, former or future employee, director or Consultant employee of the Company's (or any of its Restricted Subsidiaries or any parent of the Company) pursuant to any management equity subscription agreement or stock option agreement in effect as of the date of this Indenture or any other similar agreement; Subsidiaries, provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall not exceed $2.0 million in any twelve-month period (with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $4.0 million 500,000 in any calendar year); provided that such amount in any calendar year may be increased by an amount not to exceed and (Af) the cash proceeds from the sale acquisition of Equity Interests of the Company, any parent of Company in connection with the Company or any of its Restricted Subsidiaries to present, former or future directors, Consultants or employees of the Company, its Restricted Subsidiaries or any parent of the Company that occurred since February 20, 2001 (to the extent the cash proceeds from the sale of such Equity Interest have not otherwise been included in clause (c) of the immediately preceding paragraph), plus (B) the cash proceeds of key man life insurance policies received by the Company, its Restricted Subsidiaries or any parent of the Company since February 20, 2001; and provided that cancellation of Indebtedness owing to the Company from present, former or future directors, Consultants, or employees of the Company, any of its Restricted Subsidiaries or any parent of the Company the proceeds of which were used solely to purchase Equity Interests of the Company will not be deemed to constitute a Restricted Payment so long as the value of such Equity Interests issued did not increase clause (c) of the preceding paragraph; (vi) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, Restricted Investments made after the date of this Indenture having an aggregate Fair Market Value, taken together with all other Investments made pursuant to this clause (vi) and, without duplication, Investments made pursuant to the this clause (vi) and, without duplication, Investments made pursuant to the comparable clause of the indentures relating to the Existing Notes that are at that time outstanding (without giving effect to any write-up, write-off or write-down), not to exceed 5% of the Company's Consolidated Tangible Assets as of the end of the fiscal quarter most recently completed (with Fair Market Value of each Investment being measured at the time made and without giving effect to subsequent changes in value); (vii) repurchases of Equity Interests deemed to occur upon exercise of stock options if such Equity Interests represent a portion or stock appreciation rights by way of the cashless exercise price of such options; (viii) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the payment of dividends on the Company's Capital Stock of up to 6% per annum of the net proceeds received by the Company in its March, 2002 initial public offering; (ix) Investments in Unrestricted Subsidiaries that are made with Excluded Contributions; (x) non-cash Investments in Unrestricted Subsidiaries in the form of administrative, financial, accounting, management, or other similar services (together with a non-cash allocation of corporate overhead), in each case in the ordinary course of business; (xi) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the payment of dividends on Disqualified Stock which is issued in accordance with Section 4.09 hereof; and (xii) transactions contemplated by the offering memorandum dated September 24, 2003 in connection with the issuance satisfaction of the Notes under the caption "Use of Proceeds". The amount of all Restricted Payments (other than cash) shall be the Fair Market Value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued to or by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment; provided that, notwithstanding the other provisions of this Indenture, with respect to this covenant, an MAI appraiser, accounting firm or valuation firm with experience in such valuation and not affiliated with the Company shall be required if the fair market value of such Restricted Payment or Restricted Payments for any series of transactions exceeds $2.0 million. At least quarterly, the Company shall deliver to the Trustee an Officers' Certificate stating that all Restricted Payments during such quarter were permitted and setting forth the basis upon which the calculations required by this Section 4.07 were computed, together with a copy of any fairness opinion or appraisal required by this Indenture. If a Guarantee constituted a Restricted Investment at the time made, then the payment under such Guarantee shall not constitute an additional Restricted Investmentwithholding tax obligations. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default or an Event of Default. In the event For purposes of any making such designationdetermination, all outstanding Investments owned by the Company and its Restricted Subsidiaries (except to the extent repaid in cash) in the Subsidiary so designated shall be deemed to be Restricted Payments at the time of such designation. All such outstanding Investments will be deemed to constitute Investments in an Investment made as amount equal to the greater of (a) the net book value of such Investments at the time of such designation and shall reduce the amount available for Restricted Payments under the first paragraph of this Section 4.07 or Permitted Investments, as applicable. All such outstanding Investments shall be deemed to constitute Restricted Investments in an amount equal to (b) the fair market value of such Investments at the time of such designation. Such designation shall only be permitted if such Restricted Payment would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if such redesignation would not cause a Default or an Event of Default. Any such designation by the Board of Directors shall be evidenced to the Trustee by filing with the Trustee a certified copy of the board resolution giving effect to such designation and an Officers' Certificate certifying that such designation complied with the foregoing conditions and was permitted by this Section 4.07. If, at any time, any Unrestricted Subsidiary would fail to meet the definition of an Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary of the Company as of such date (and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09 hereof, the Company shall be in default of Section 4.09 hereof). The Board of Directors of the Company may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary; , provided that such designation shall be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of the Company of any outstanding Indebtedness of such Unrestricted Subsidiary and such designation shall only be permitted if (a) such Indebtedness is permitted under Section 4.09 hereof, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period, and (b) no Default or Event of Default would be in existence following such designation. Any designation of a Subsidiary as an Unrestricted Subsidiary shall be evidenced to the Trustee by filing with the Trustee a certified copy of a resolution of the Board of Directors giving effect to such designation and an Officers' Certificate certifying that such designation complied with the terms of the definition of Unrestricted Subsidiary set forth in this Indenture and with this Section 4.07. The amount of all Restricted Payments (other than cash) shall be the fair market value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall be determined in the manner contemplated by the definition of the term "fair market value," and the results of such determination shall be evidenced by an Officers' Certificate delivered to the Trustee. Not later than the date of making any Restricted Payment, the Company shall deliver to the Trustee an Officers' Certificate stating that such Restricted Payment is permitted and setting forth the basis upon which the calculations required by this Section 4.07 were computed.
Appears in 2 contracts
Sources: Indenture (Saevik Shipping As), Indenture (Trico Marine Services Inc)
million. The preceding foregoing provisions shall will not prohibit: prohibit (i) the payment of any dividend within 60 days after the date of declaration thereof, if at said date of declaration, declaration such payment would have complied with the provisions of this the Indenture; (ii) the redemption, repurchase, retirement, defeasance or other acquisition of any subordinated Indebtedness or Equity Interests of the Company or any Guarantor or of any Equity Interests of the Company in exchange for, or out of the net cash proceeds of the substantially concurrent sale, issuance of or contribution for, sale (other than to a Restricted Subsidiary of the Company)) of, other Equity Interests of the Company (other than any Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such payment, redemption, repurchase, retirement, defeasance, defeasance or other acquisition or dividend or distribution shall be excluded from clause (c) (ii) of the preceding paragraph; (iii) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the defeasance, redemption, repurchase repurchase, retirement or other acquisition of subordinated Indebtedness in exchange for, or with the net cash proceeds from from, an incurrence of Permitted Refinancing Indebtedness; (iv) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the payment of any dividend (or the making of a similar distribution or redemption) by a Restricted Subsidiary of the Company to the holders of its common Equity Interests on a pro rata basis; (v) so long as no Default or Event of Default has shall have occurred and is continuing or would be caused therebycontinuing, the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company Company, Holdings or any Restricted Subsidiary of the Company Company, held by any present, former or future employee, director or Consultant member of the Company's (or any of its Restricted Subsidiaries Subsidiaries') management, employees or any parent of the Company) consultants pursuant to any management management, employee or consultant equity subscription agreement or stock option agreement in effect as of the date of this Indenture or any other similar agreementthe Indenture; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall not exceed $2.0 million in any twelve-month period (with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) sum of $4.0 million in any calendar year); provided that such amount in any calendar year may be increased by an amount not to exceed (A) the cash proceeds from the sale of Equity Interests of the Company, any parent of the Company or any of its Restricted Subsidiaries to present, former or future directors, Consultants or employees of the Company, its Restricted Subsidiaries or any parent of the Company that occurred since February 20, 2001 (to the extent the cash proceeds from the sale of such Equity Interest have not otherwise been included in clause (c) of the immediately preceding paragraph), plus $10.0 million and (B) the aggregate cash proceeds of key man life insurance policies received by the Company, Company from any reissuance of Equity Interests by Holdings or the Company to members of management of the Company and its Restricted Subsidiaries or any parent (provided that the cash proceeds referred to in this clause (B) shall be excluded from clause (c)(ii), of the Company since February 20, 2001preceding paragraph); and provided that cancellation of Indebtedness owing (vi) payments required to be made under the Tax Sharing Agreement; (vii) distributions made by the Company from presenton the date hereof, former or future directors, Consultants, or employees of the Company, any of its Restricted Subsidiaries or any parent of the Company the proceeds of which were used are utilized solely to purchase Equity Interests consummate the Recapitalization; (viii) the payment of dividends or the making of loans or advances by the Company to Holdings not to exceed $1.5 million in any fiscal year for costs and expenses incurred by Holdings in its capacity as a holding company or for services rendered by Holdings on behalf of the Company will not be deemed to constitute a Restricted Payment so long as the value of such Equity Interests issued did not increase clause (c) of the preceding paragraphCompany; (viix) so long as no Default or Event of Default has occurred and is continuing continuing, the declaration and payment of dividends to holders of any class or would be caused thereby, Restricted Investments made series of Disqualified Stock of the Company or any Guarantor issued after the date of this Indenture having an aggregate Fair Market Value, taken together hereof in accordance with all other Investments made pursuant to this clause (vi) and, without duplication, Investments made pursuant to the this clause (vi) and, without duplication, Investments made pursuant to the comparable clause of the indentures relating to the Existing Notes that are at that time outstanding (without giving effect to any write-up, write-off or write-down), not to exceed 5% of the Company's Consolidated Tangible Assets as of the end of the fiscal quarter most recently completed (with Fair Market Value of each Investment being measured at the time made and without giving effect to subsequent changes in value)Section 4.09; (vii) repurchases of Equity Interests deemed to occur upon exercise of stock options if such Equity Interests represent a portion of the exercise price of such options; (viiix) so long as (A) no Default or Event of Default has occurred and is continuing or would be caused therebyand (B) immediately before and immediately after giving effect thereto, the payment Company would have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the first paragraph described under Section 4.09, from and after October 15, 2002, payments of cash dividends on the Company's Capital Stock to Holdings in an amount sufficient to enable Holdings to make payments of up interest required to 6% per annum be made in respect of the net proceeds received by the Company in its March, 2002 initial public offering; (ix) Investments in Unrestricted Subsidiaries that are made with Excluded Contributions; (x) non-cash Investments in Unrestricted Subsidiaries in the form of administrative, financial, accounting, management, or other similar services (together with a non-cash allocation of corporate overhead), in each case in the ordinary course of business; (xi) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the payment of dividends on Disqualified Stock which is issued Senior Discount Debentures in accordance with Section 4.09 hereof; and (xii) transactions contemplated by the offering memorandum dated September 24, 2003 terms thereof in connection with the issuance of the Notes under the caption "Use of Proceeds". The amount of all Restricted Payments (other than cash) shall be the Fair Market Value effect on the date of the Restricted Payment Indenture, provided such interest payments are made with the proceeds of such dividends; and (xi) the asset(s) or securities proposed to be transferred or issued to or payment of dividends by the Company to Holdings of not more than 20% of the net proceeds from any sale of all or substantially all of the Capital Stock or assets of the Company's Popular Club Plan business or ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ business (as each such Restricted Subsidiarybusiness is constituted on the Issue Date), as the case may be, pursuant provided that such dividends shall only be permitted to the Restricted Payment; provided thatextent that Holdings immediately utilizes the proceeds thereof to repay, notwithstanding the other provisions of this Indentureredeem, with respect to this covenant, an MAI appraiser, accounting firm repurchase or valuation firm with experience in such valuation and not affiliated with the Company shall be required if the fair market value of such Restricted Payment or Restricted Payments for any series of transactions exceeds $2.0 million. At least quarterly, the Company shall deliver to the Trustee an Officers' Certificate stating that all Restricted Payments during such quarter were permitted and setting forth the basis upon which the calculations required by this Section 4.07 were computed, together with a copy of any fairness opinion or appraisal required by this Indenture. If a Guarantee constituted a Restricted Investment at the time made, then the payment under such Guarantee shall not constitute an additional Restricted Investmentotherwise retire outstanding Senior Discount Debentures. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default or an Event of Default. In the event For purposes of any making such designationdetermination, all outstanding Investments owned by the Company and its Restricted Subsidiaries (except to the extent repaid in cash) in the Subsidiary so designated shall will be deemed to be an Investment made as of Restricted Payments at the time of such designation and shall will reduce the amount available for Restricted Payments under the first paragraph of this Section 4.07 or Permitted Investments, as applicablecovenant. All such outstanding Investments shall will be deemed to constitute Restricted Investments in an amount equal to the greater of (i) the net book value of such Investments at the time of such designation and (ii) the fair market value of such Investments at the time of such designation. Such designation shall will only be permitted if such Restricted Payment would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. The Board amount of Directors may redesignate any Unrestricted Subsidiary (i) all Restricted Payments (other than cash) shall be the fair market value on the date of the Restricted Payment of the asset(s) or securities proposed to be a transferred or issued by the Company or such Restricted Subsidiary if Subsidiary, as the case may be, pursuant to the Restricted Payment and (ii) Qualified Proceeds (other than cash) shall be the fair market value on the date of receipt thereof by the Company of such redesignation would not cause a Default or an Event Qualified Proceeds. The fair market value of Default. Any such designation any non-cash Restricted Payment and Qualified Proceeds shall be determined by the Board of Directors whose resolution with respect thereto shall be evidenced delivered to the Trustee, such determination to be based upon an opinion or appraisal issued by an accounting, appraisal or investment banking firm of national standing if such fair market value exceeds $10.0 million. Not later than the date of making any Restricted Payment, the Company shall deliver to the Trustee by filing with the Trustee a certified copy of the board resolution giving effect to such designation and an Officers' Certificate certifying stating that such designation complied Restricted Payment is permitted and setting forth the basis upon which the calculations required by Section 4.07 were computed, together with the foregoing conditions and was permitted a copy of any fairness opinion or appraisal required by this Section 4.07. If, at any time, any Unrestricted Subsidiary would fail to meet the definition of an Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary of the Company as of such date (and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09 hereof, the Company shall be in default of Section 4.09 hereof). The Board of Directors of the Company may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided that such designation shall be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of the Company of any outstanding Indebtedness of such Unrestricted Subsidiary and such designation shall only be permitted if (a) such Indebtedness is permitted under Section 4.09 hereof, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period, and (b) no Default or Event of Default would be in existence following such designationIndenture.
Appears in 1 contract
Sources: Indenture (Crew J Operating Corp)
million. The preceding foregoing provisions shall will not prohibit: prohibit (ia) the payment of any dividend within 60 days after the date of declaration thereof, if at said date of declaration, declaration such payment would have complied with the provisions of this Indenture and the Series A/B Indenture; (iib) the redemption, repurchase, retirement, defeasance or other acquisition of any subordinated Indebtedness of the Company or any Guarantor or of any Equity Interests of the Company in exchange for, or out of the net cash proceeds of the substantially concurrent sale, issuance of or contribution for, sale (other than to a Restricted Subsidiary of the Company)) of, other Equity Interests of the Company (other than any Disqualified Stock); , provided that the amount of any such net cash proceeds that are utilized for any such payment, redemption, repurchase, retirement, defeasance, defeasance or other acquisition or dividend or distribution shall be excluded from clause (ciii)(B) of the preceding paragraph; (iiic) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the defeasance, redemption, repurchase repurchase, retirement or other acquisition of subordinated Indebtedness with the net cash proceeds from an incurrence of of, or in exchange for, Permitted Refinancing Indebtedness; (ivd) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the payment of any dividend or distribution by a Restricted Subsidiary of the Company to the holders of its common Equity Interests on a pro rata basisto the Company or any Wholly Owned Restricted Subsidiary; (ve) so long as no Default or Event of Default has shall have occurred and is continuing or would be caused therebycontinuing, the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company held by any present, former or future employee, director or Consultant employee of the Company's (or any of its Restricted Subsidiaries or any parent of the Company) pursuant to any management equity subscription agreement or stock option agreement in effect as of the date of this Indenture or any other similar agreement; Subsidiaries, provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall not exceed $2.0 million in any twelve-month period (with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $4.0 million 500,000 in any calendar year); provided that such amount in any calendar year may be increased by an amount not to exceed and (Af) the cash proceeds from the sale acquisition of Equity Interests of the Company, any parent of Company in connection with the Company or any of its Restricted Subsidiaries to present, former or future directors, Consultants or employees of the Company, its Restricted Subsidiaries or any parent of the Company that occurred since February 20, 2001 (to the extent the cash proceeds from the sale of such Equity Interest have not otherwise been included in clause (c) of the immediately preceding paragraph), plus (B) the cash proceeds of key man life insurance policies received by the Company, its Restricted Subsidiaries or any parent of the Company since February 20, 2001; and provided that cancellation of Indebtedness owing to the Company from present, former or future directors, Consultants, or employees of the Company, any of its Restricted Subsidiaries or any parent of the Company the proceeds of which were used solely to purchase Equity Interests of the Company will not be deemed to constitute a Restricted Payment so long as the value of such Equity Interests issued did not increase clause (c) of the preceding paragraph; (vi) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, Restricted Investments made after the date of this Indenture having an aggregate Fair Market Value, taken together with all other Investments made pursuant to this clause (vi) and, without duplication, Investments made pursuant to the this clause (vi) and, without duplication, Investments made pursuant to the comparable clause of the indentures relating to the Existing Notes that are at that time outstanding (without giving effect to any write-up, write-off or write-down), not to exceed 5% of the Company's Consolidated Tangible Assets as of the end of the fiscal quarter most recently completed (with Fair Market Value of each Investment being measured at the time made and without giving effect to subsequent changes in value); (vii) repurchases of Equity Interests deemed to occur upon exercise of stock options if such Equity Interests represent a portion or stock appreciation rights by way of the cashless exercise price of such options; (viii) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the payment of dividends on the Company's Capital Stock of up to 6% per annum of the net proceeds received by the Company in its March, 2002 initial public offering; (ix) Investments in Unrestricted Subsidiaries that are made with Excluded Contributions; (x) non-cash Investments in Unrestricted Subsidiaries in the form of administrative, financial, accounting, management, or other similar services (together with a non-cash allocation of corporate overhead), in each case in the ordinary course of business; (xi) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the payment of dividends on Disqualified Stock which is issued in accordance with Section 4.09 hereof; and (xii) transactions contemplated by the offering memorandum dated September 24, 2003 in connection with the issuance satisfaction of the Notes under the caption "Use of Proceeds". The amount of all Restricted Payments (other than cash) shall be the Fair Market Value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued to or by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment; provided that, notwithstanding the other provisions of this Indenture, with respect to this covenant, an MAI appraiser, accounting firm or valuation firm with experience in such valuation and not affiliated with the Company shall be required if the fair market value of such Restricted Payment or Restricted Payments for any series of transactions exceeds $2.0 million. At least quarterly, the Company shall deliver to the Trustee an Officers' Certificate stating that all Restricted Payments during such quarter were permitted and setting forth the basis upon which the calculations required by this Section 4.07 were computed, together with a copy of any fairness opinion or appraisal required by this Indenture. If a Guarantee constituted a Restricted Investment at the time made, then the payment under such Guarantee shall not constitute an additional Restricted Investmentwithholding tax obligations. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default or an Event of Default. In the event For purposes of any making such designationdetermination, all outstanding Investments owned by the Company and its Restricted Subsidiaries (except to the extent repaid in cash) in the Subsidiary so designated shall be deemed to be Restricted Payments at the time of such designation. All such outstanding Investments will be deemed to constitute Investments in an Investment made as amount equal to the greater of (a) the net book value of such Investments at the time of such designation and shall reduce the amount available for Restricted Payments under the first paragraph of this Section 4.07 or Permitted Investments, as applicable. All such outstanding Investments shall be deemed to constitute Restricted Investments in an amount equal to (b) the fair market value of such Investments at the time of such designation. Such designation shall only be permitted if such Restricted Payment would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if such redesignation would not cause a Default or an Event of Default. Any such designation by the Board of Directors shall be evidenced to the Trustee by filing with the Trustee a certified copy of the board resolution giving effect to such designation and an Officers' Certificate certifying that such designation complied with the foregoing conditions and was permitted by this Section 4.07. If, at any time, any Unrestricted Subsidiary would fail to meet the definition of an Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary of the Company as of such date (and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09 hereof, the Company shall be in default of Section 4.09 hereof). The Board of Directors of the Company may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary; , provided that such designation shall be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of the Company of any outstanding Indebtedness of such Unrestricted Subsidiary and such designation shall only be permitted if (a) such Indebtedness is permitted under Section 4.09 hereof, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period, and (b) no Default or Event of Default would be in existence following such designation. Any designation of a Subsidiary as an Unrestricted Subsidiary shall be evidenced to the Trustee by filing with the Trustee a certified copy of a resolution of the Board of Directors giving effect to such designation and an Officers' Certificate certifying that such designation complied with the terms of the definition of Unrestricted Subsidiary set forth in this Indenture and with this Section 4.07. The amount of all Restricted Payments (other than cash) shall be the fair market value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall be determined in the manner contemplated by the definition of the term "fair market value," and the results of such determination shall be evidenced by an Officers' Certificate delivered to the Trustee. Not later than the date of making any Restricted Payment, the Company shall deliver to the Trustee an Officers' Certificate stating that such Restricted Payment is permitted and setting forth the basis upon which the calculations required by this Section 4.07 were computed.
Appears in 1 contract
million. The preceding foregoing provisions shall will not prohibitprohibit any of the following: (ia) the payment of any dividend within 60 days after the date of declaration thereof, if at said date of declaration, declaration such payment would have complied with the provisions of this Indenture; (iib) the redemption, repurchase, retirement, defeasance or other acquisition of any subordinated Indebtedness of the Company or any Guarantor or of any Equity Interests of the Company in exchange for, or out of the net cash proceeds of the substantially concurrent sale, issuance of or contribution for, sale (other than to a Restricted Subsidiary of the Company)) of, other Equity Interests of the Company (other than any Disqualified Stock); , provided that the amount of any such net cash proceeds that are utilized for any such payment, redemption, repurchase, retirement, defeasance, defeasance or other acquisition or dividend or distribution shall be excluded from clause (ciii)(B) of the preceding paragraph; (iiic) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the defeasance, redemption, repurchase repurchase, retirement or other acquisition of subordinated Indebtedness with the net cash proceeds from an incurrence of of, or in exchange for, Permitted Refinancing Indebtedness; (ivd) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the payment of any dividend or distribution by a Restricted Subsidiary of the Company to the holders of its common Equity Interests on a pro rata basis; (ve) so long as no Default or Event of Default has shall have occurred and is continuing or would be caused therebycontinuing, the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or held by any Restricted Subsidiary employee of the Company held by any present, former or future employee, director or Consultant of the Company's (or any of its Restricted Subsidiaries or any parent of the Company) pursuant to any management equity subscription agreement or stock option agreement in effect as of the date of this Indenture or any other similar agreement; Subsidiaries, provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall not exceed $2.0 million in any twelve-month period (with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $4.0 1.0 million in any calendar year); provided that such amount in any calendar year may be increased by an amount not to exceed and (Af) the cash proceeds from the sale acquisition of Equity Interests of the Company, any parent Company in connection with the exercise of stock options or stock appreciation rights by way of cashless exercise or in connection with the Company or any satisfaction of its withholding tax obligations. In determining the aggregate amount of Restricted Subsidiaries to present, former or future directors, Consultants or employees of the Company, its Restricted Subsidiaries or any parent of the Company that occurred since February 20, 2001 (Payments made subsequent to the extent the cash proceeds from the sale of such Equity Interest have not otherwise been included Issue Date in accordance with clause (c) of the immediately preceding paragraph, amounts expended pursuant to clauses (b), plus (B) the cash proceeds of key man life insurance policies received by the Company, its Restricted Subsidiaries or any parent of the Company since February 20, 2001; and provided that cancellation of Indebtedness owing to the Company from present, former or future directors, Consultants, or employees of the Company, any of its Restricted Subsidiaries or any parent of the Company the proceeds of which were used solely to purchase Equity Interests of the Company will not be deemed to constitute a Restricted Payment so long as the value of such Equity Interests issued did not increase clause (c), (d) and (f) of this paragraph shall be excluded from the preceding paragraph; calculation and amounts expended pursuant to clauses (via) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, Restricted Investments made after the date (e) of this Indenture having an aggregate Fair Market Value, taken together with all other Investments made pursuant to this clause (vi) and, without duplication, Investments made pursuant to the this clause (vi) and, without duplication, Investments made pursuant to the comparable clause of the indentures relating to the Existing Notes that are at that time outstanding (without giving effect to any write-up, write-off or write-down), not to exceed 5% of the Company's Consolidated Tangible Assets as of the end of the fiscal quarter most recently completed (with Fair Market Value of each Investment being measured at the time made and without giving effect to subsequent changes in value); (vii) repurchases of Equity Interests deemed to occur upon exercise of stock options if such Equity Interests represent a portion of the exercise price of such options; (viii) so long as no Default or Event of Default has occurred and is continuing or would paragraph shall be caused thereby, the payment of dividends on the Company's Capital Stock of up to 6% per annum of the net proceeds received by the Company in its March, 2002 initial public offering; (ix) Investments in Unrestricted Subsidiaries that are made with Excluded Contributions; (x) non-cash Investments in Unrestricted Subsidiaries included in the form of administrative, financial, accounting, management, or other similar services (together with a non-cash allocation of corporate overhead), in each case in the ordinary course of business; (xi) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the payment of dividends on Disqualified Stock which is issued in accordance with Section 4.09 hereof; and (xii) transactions contemplated by the offering memorandum dated September 24, 2003 in connection with the issuance of the Notes under the caption "Use of Proceeds". The amount of all Restricted Payments (other than cash) shall be the Fair Market Value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued to or by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment; provided that, notwithstanding the other provisions of this Indenture, with respect to this covenant, an MAI appraiser, accounting firm or valuation firm with experience in such valuation and not affiliated with the Company shall be required if the fair market value of such Restricted Payment or Restricted Payments for any series of transactions exceeds $2.0 million. At least quarterly, the Company shall deliver to the Trustee an Officers' Certificate stating that all Restricted Payments during such quarter were permitted and setting forth the basis upon which the calculations required by this Section 4.07 were computed, together with a copy of any fairness opinion or appraisal required by this Indenture. If a Guarantee constituted a Restricted Investment at the time made, then the payment under such Guarantee shall not constitute an additional Restricted Investmentcalculation. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default or an Event of Default. In the event For purposes of any making such designationdetermination, all outstanding Investments owned by the Company and its Restricted Subsidiaries (except to the extent repaid in cash) in the Subsidiary so designated shall be deemed to be Restricted Payments at the time of such designation. All such outstanding Investments will be deemed to constitute Investments in an Investment made as amount equal to the greater of (a) the net book value of such Investments at the time of such designation and shall reduce the amount available for Restricted Payments under the first paragraph of this Section 4.07 or Permitted Investments, as applicable. All such outstanding Investments shall be deemed to constitute Restricted Investments in an amount equal to (b) the fair market value of such Investments at the time of such designation. Such designation shall only be permitted if such Restricted Payment would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if such redesignation would not cause a Default or an Event of Default. Any such designation by the Board of Directors shall be evidenced to the Trustee by filing with the Trustee a certified copy of the board resolution giving effect to such designation and an Officers' Certificate certifying that such designation complied with the foregoing conditions and was permitted by this Section 4.07. If, at any time, any Unrestricted Subsidiary would fail to meet the definition of an Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary of the Company as of such date (and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09 hereof, the Company shall be in default of Section 4.09 hereof). The Board of Directors of the Company may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary; , provided that such designation shall be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of the Company of any outstanding Indebtedness of such Unrestricted Subsidiary and such designation shall only be permitted if (a) such Indebtedness is permitted under Section 4.09 hereof, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period, and (b) no Default or Event of Default would be in existence following such designation. Any designation of a Subsidiary as an Unrestricted Subsidiary shall be evidenced to the Trustee by filing with the Trustee a certified copy of a resolution of the Board of Directors giving effect to such designation and an Officers' Certificate certifying that such designation complied with the terms of the definition of Unrestricted Subsidiary set forth in this Indenture and with this Section 4.07. The amount of all Restricted Payments (other than cash) shall be the fair market value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall be determined in the manner contemplated by the definition of the term "fair market value," and the results of such determination shall be evidenced by an Officers' Certificate delivered to the Trustee. Not later than the date of making any Restricted Payment, the Company shall deliver to the Trustee an Officers' Certificate stating that such Restricted Payment is permitted and setting forth the basis upon which the calculations required by this Section 4.07 were computed; provided, however, with respect to any planned purchase or redemption by the Company of its Equity Interests, the Company may, in advance of any such purchase or redemption, deliver to the Trustee a single Officers' Certificate that otherwise complies with requirements set forth above stating (i) the maximum aggregate amount of Equity Interests to be purchased or redeemed and (ii) the period over which such purchases or redemptions will occur.
Appears in 1 contract
Sources: Indenture (Frontier Oil Corp /New/)
million. The preceding foregoing provisions shall will not prohibit: prohibit (i) the payment of any dividend within 60 days after the date of declaration thereof, if at the date of declaration, declaration thereof such payment would have complied with the provisions of this Indenture; (iiii)(A) the redemption, repurchase, retirement, defeasance or other acquisition of any subordinated Indebtedness of the Company or any Guarantor or retirement of any Equity Interests of the Company (the "Retired Equity Interests") either in exchange for, for or out of the net cash proceeds of the substantially concurrent sale, issuance of or contribution for, sale (other than to a Restricted Subsidiary Subsidiary) of the Company), other Equity Interests of the Company (the "Refunding Equity Interests") other than Disqualified any Redeemable Stock and (B) if the Retired Equity Interest constituted Qualified Preferred Stock); provided that , the declaration and payment of dividends on the Refunding Equity Interest in an aggregate amount per year no greater than the aggregate amount of any dividends per year that was declarable and payable on such net cash proceeds that are utilized for any Retired Equity Interest immediately prior to such payment, redemption, repurchase, retirement, defeasance, other acquisition or dividend or distribution shall retirement to the extent such Refunding Equity Interest is designated to be excluded from clause (c) Qualified Preferred Stock by the Company at the time of the preceding paragraphits issuance; (iii) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the defeasance, redemption, repurchase or other acquisition of subordinated Indebtedness with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness; (iv) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the payment of any dividend or distribution by a Restricted Subsidiary of the Company to the holders of its common Equity Interests on a pro rata basis; (v) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company issued to employees, officers or directors of the Company and its Subsidiaries pursuant to agreements containing provisions for the repurchase of such Equity Interests upon death, disability or termination of employment or directorship of such Persons, or in accordance with the Company's ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policy, not to exceed $5.0 million in any Restricted Subsidiary fiscal year plus the aggregate cash proceeds from any reissuance during such fiscal year of Equity Interests by the Company to employees, officers or directors of the Company and its Subsidiaries plus the aggregate cash proceeds from any payments on life insurance policies with respect to any employees, officers or directors of the Company and its Subsidiaries which proceeds are used to purchase the Equity Interests of the Company held by any presentsuch employees, former officers or future employee, director directors; (iv) the declaration and payment of dividends to holders of any class or Consultant series of the Company's preferred stock issued after the Issue Date (or any including, without limitation, the declaration and payment of its Restricted Subsidiaries or any parent dividends on Refunding Equity Interests in excess of the Company) dividends declarable and payable thereon pursuant to any management equity subscription agreement or stock option agreement in effect as of the date clause (ii) of this Indenture or any other similar agreement; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall not exceed $2.0 million in any twelve-month period (with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $4.0 million in any calendar yearparagraph); provided that such amount in any calendar year may be increased by an amount not to exceed (A) the cash proceeds from the sale of Equity Interests of the Company, any parent of the Company or any of its Restricted Subsidiaries to present, former or future directors, Consultants or employees of the Company, its Restricted Subsidiaries or any parent of the Company that occurred since February 20, 2001 (to the extent the cash proceeds from the sale of such Equity Interest have not otherwise been included in clause (c) of the immediately preceding paragraph), plus (B) the cash proceeds of key man life insurance policies received by the Company, its Restricted Subsidiaries or any parent of the Company since February 20, 2001; and provided that cancellation of Indebtedness owing to the Company from present, former or future directors, Consultants, or employees of the Company, any of its Restricted Subsidiaries or any parent of the Company the proceeds of which were used solely to purchase Equity Interests of the Company will not be deemed to constitute a Restricted Payment so long as the value of such Equity Interests issued did not increase clause (c) of the preceding paragraph; (vi) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, Restricted Investments made after the date of this Indenture having an aggregate Fair Market Value, taken together with all other Investments made pursuant to this clause (vi) and, without duplication, Investments made pursuant to the this clause (vi) and, without duplication, Investments made pursuant to the comparable clause of the indentures relating to the Existing Notes that are at that time outstanding (without giving effect to any write-up, write-off or write-down), not to exceed 5% of the Company's Consolidated Tangible Assets as of the end of the fiscal quarter most recently completed (with Fair Market Value of each Investment being measured at the time made and without giving effect to subsequent changes in value); (vii) repurchases of Equity Interests deemed to occur upon exercise of stock options if such Equity Interests represent a portion of the exercise price of such options; (viii) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the payment of dividends on the Company's Capital Stock of up to 6% per annum of the net proceeds received by the Company in its March, 2002 initial public offering; (ix) Investments in Unrestricted Subsidiaries that are made with Excluded Contributions; (x) non-cash Investments in Unrestricted Subsidiaries in the form of administrative, financial, accounting, management, or other similar services (together with a non-cash allocation of corporate overhead), in each case in the ordinary course of business; (xi) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the payment of dividends on Disqualified Stock which is issued in accordance with Section 4.09 hereof; and (xii) transactions contemplated by the offering memorandum dated September 24, 2003 in connection with the issuance of the Notes under the caption "Use of Proceeds". The amount of all Restricted Payments (other than cash) shall be the Fair Market Value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued to or by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment; provided that, notwithstanding the other provisions of this Indenture, with respect to this covenant, an MAI appraiser, accounting firm or valuation firm with experience in such valuation and not affiliated with the Company shall be required if the fair market value of such Restricted Payment or Restricted Payments for any series of transactions exceeds $2.0 million. At least quarterly, the Company shall deliver to the Trustee an Officers' Certificate stating that all Restricted Payments during such quarter were permitted and setting forth the basis upon which the calculations required by this Section 4.07 were computed, together with a copy of any fairness opinion or appraisal required by this Indenture. If a Guarantee constituted a Restricted Investment at the time made, then the payment under such Guarantee shall not constitute an additional Restricted Investment. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default or an Event of Default. In the event of any such designation, all outstanding Investments owned by the Company and its Restricted Subsidiaries in the Subsidiary so designated shall be deemed to be an Investment made as of the time of such designation and shall reduce the amount available for Restricted Payments under the first paragraph of this Section 4.07 or Permitted Investments, as applicable. All such outstanding Investments shall be deemed to constitute Restricted Investments in an amount equal to the fair market value of such Investments at the time of such designation. Such designation shall only be permitted if such Restricted Payment would be permitted at such time and if such Restricted Subsidiary otherwise meets issuance the definition of an Unrestricted Subsidiary. The Board of Directors may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if such redesignation would not cause a Default or an Event of Default. Any such designation by Company's Fixed Charge Coverage Ratio for the Board of Directors shall be evidenced four full fiscal quarters ending immediately prior to the Trustee by filing with the Trustee a certified copy of the board resolution giving effect to such designation and an Officers' Certificate certifying that such designation complied with the foregoing conditions and was permitted by this Section 4.07. If, at any time, any Unrestricted Subsidiary would fail to meet the definition of an Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness date of such Subsidiary shall be deemed issuance would have been at least 1.25 to be incurred by a Restricted Subsidiary of the Company as of such date (and1, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09 hereof, the Company shall be in default of Section 4.09 hereof). The Board of Directors of the Company may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided that such designation shall be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of the Company of any outstanding Indebtedness of such Unrestricted Subsidiary and such designation shall only be permitted if (a) such Indebtedness is permitted under Section 4.09 hereof, calculated determined on a pro forma basis as if such designation had occurred issuance was at the beginning of the such four-quarter reference period, and at the time of issuance, such preferred stock is designated by the Company to be Qualified Preferred Stock; and (bv) an Investment in any Unrestricted Subsidiary either in exchange for Equity Interests of the Company (other than Redeemable Stock) or out of the proceeds of the sale (other than to a Restricted Subsidiary) of Equity Interests of the Company (other than Redeemable Stock) received by the Company not more than 12 months prior to the date of such Investment (to the extent such sale of Equity Interests has not previously been included in any calculation under clause (c) above for purposes of permitting a Restricted Payment); provided that, in the cases of clauses (iii) (other than with respect to the repurchase of Equity Interests with insurance proceeds), (iv) and (v), no Default or Event of Default would shall have occurred and be continuing at the time of such Restricted Payment or shall occur immediately after giving effect thereto. In determining the aggregate amount expended for Restricted Payments in existence following such designationaccordance with clause (c) above, (1) no amounts expended under clause (iii) (only with respect to the use of insurance proceeds to repurchase Equity Interests) of the immediately preceding paragraph shall be included and (2) 100% of the amounts expended under clauses (i), (ii), (iii) (other than with respect to the repurchase of Equity Interests with insurance proceeds), (iv) and (v) of the immediately preceding paragraph shall be included.
Appears in 1 contract
million. The preceding foregoing provisions shall will not prohibit: prohibit (iA) the payment of any dividend within 60 days after the date of declaration thereof, if at said date of declaration, declaration such payment would have complied with the provisions of this Indenture; (iiB) the redemption, repurchase, retirement, defeasance or other acquisition of any subordinated Indebtedness of the Company or any Guarantor or of any Equity Interests of the Company in exchange for, or out of the net cash proceeds of the substantially concurrent sale, issuance of or contribution for, (other than to a Restricted Subsidiary of the Company), Equity Interests of the Company (other than Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such payment, redemption, repurchase, retirement, defeasance, other acquisition or dividend or distribution shall be excluded from clause (c) of the preceding paragraph; (iii) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the defeasance, redemption, repurchase or other acquisition of subordinated Indebtedness with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness; (iv) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the payment of any dividend or distribution by a Restricted Subsidiary of the Company to the holders of its common Equity Interests on a pro rata basis; (v) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the repurchase, redemption retirement or other acquisition or retirement for value of any Equity Interests of the Company in exchange for, or any with the net cash proceeds of, the substantially concurrent sale (other than to a Restricted Subsidiary of the Company held by any present, former or future employee, director or Consultant Company) of other Equity Interests of the Company's Company (other than any Disqualified Stock); (C) the defeasance, redemption, repurchase, retirement or any other acquisition or retirement for value of its Indebtedness that is subordinated or pari passu in right of payment to the Notes in exchange for, or with the net cash proceeds of, a substantially concurrent issuance and sale (other than to a Restricted Subsidiaries or any parent Subsidiary of the Company) pursuant to any management equity subscription agreement or stock option agreement in effect as of the date of this Indenture or any other similar agreement; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall not exceed $2.0 million in any twelve-month period (with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $4.0 million in any calendar year); provided that such amount in any calendar year may be increased by an amount not to exceed (A) the cash proceeds from the sale of Equity Interests of the CompanyCompany (other than Disqualified Stock); (D) the defeasance, any parent redemption, repurchase, retirement or other acquisition or retirement for value of Indebtedness that is subordinated or pari passu in right of payment to the Notes in exchange for, or with the net cash proceeds of, a substantially concurrent issue and sale (other than to the Company or any of its Restricted Subsidiaries Subsidiaries) of Refinancing Indebtedness; (E) the repurchase of any Indebtedness subordinated or pari passu in right of payment to present, former or future directors, Consultants or employees the Notes at a purchase price not greater than 101% of the Companyprincipal amount of such Indebtedness in the event of a Change of Control in accordance with provisions similar to the covenant set forth in Section 4.14 hereof, its Restricted Subsidiaries provided that prior to or any parent contemporaneously with such repurchase the Company has made the Change of Control Offer as provided in such covenant with respect to the Notes and has repurchased all Notes validly tendered for payment in connection with such Change of Control Offer; (F) the prepayment of the Chrysler Notes, together with premium and interest thereon; (G) the prepayment of $450,000 of junior subordinated notes originally issued by the Company to First Document Storage, Inc. in connection with a 1990 acquisition, together with interest thereon; and (H) additional payments to current or former employees or directors of the Company for repurchases of stock, stock options or other equity interests, provided that occurred since February 20, 2001 (to the extent the cash proceeds from the sale aggregate amount of all such Equity Interest have not otherwise been included in payments under this clause (cH) does not exceed $500,000 in any year and $2.0 million in the aggregate. The Restricted Payments described in clauses (B), (C), (E) and (H) of the immediately preceding paragraph), plus (B) paragraph will be Restricted Payments that will be permitted to be taken in accordance with such paragraph but will reduce the cash proceeds of key man life insurance policies received by the Company, its amount that would otherwise be available for Restricted Subsidiaries or any parent of the Company since February 20, 2001; and provided that cancellation of Indebtedness owing to the Company from present, former or future directors, Consultants, or employees of the Company, any of its Restricted Subsidiaries or any parent of the Company the proceeds of which were used solely to purchase Equity Interests of the Company will not be deemed to constitute a Restricted Payment so long as the value of such Equity Interests issued did not increase Payments under clause (ciii) of the preceding paragraph; (vi) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, Restricted Investments made after the date first paragraph of this Indenture having an aggregate Fair Market Valuesection, taken together with all other Investments made pursuant to this clause and the Restricted Payments described in clauses (viA), (D), (F) and, without duplication, Investments made pursuant to the this clause and (viG) and, without duplication, Investments made pursuant to the comparable clause of the indentures relating immediately preceding paragraph will be Restricted Payments that will be permitted to the Existing Notes that are at that time outstanding (without giving effect to any write-up, write-off or write-down), not to exceed 5% of the Company's Consolidated Tangible Assets as of the end of the fiscal quarter most recently completed (with Fair Market Value of each Investment being measured at the time made and without giving effect to subsequent changes in value); (vii) repurchases of Equity Interests deemed to occur upon exercise of stock options if such Equity Interests represent a portion of the exercise price of such options; (viii) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the payment of dividends on the Company's Capital Stock of up to 6% per annum of the net proceeds received by the Company in its March, 2002 initial public offering; (ix) Investments in Unrestricted Subsidiaries that are made with Excluded Contributions; (x) non-cash Investments in Unrestricted Subsidiaries in the form of administrative, financial, accounting, management, or other similar services (together with a non-cash allocation of corporate overhead), in each case in the ordinary course of business; (xi) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the payment of dividends on Disqualified Stock which is issued taken in accordance with Section 4.09 hereof; such paragraph and will not reduce the amount that would otherwise be available for Restricted Payments under clause (xiiiii) transactions contemplated by the offering memorandum dated September 24, 2003 in connection with the issuance of the Notes under first paragraph of this section. If an Investment results in the caption "Use making of Proceeds". The a Restricted Payment, the aggregate amount of all Restricted Payments (other than cash) shall deemed to have been made as calculated under the foregoing provision 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 to or reduced by the Company amount of any net reduction in such Investment (resulting from the payment of interest or such Restricted Subsidiarydividends, as the case may beloan repayment, pursuant transfer of assets or otherwise) to the Restricted Paymentextent such net reduction is not included in the Company's EBITDA; provided thatprovided, notwithstanding however, that the other provisions total amount by which the aggregate amount of this Indenture, with respect to this covenant, an MAI appraiser, accounting firm or valuation firm with experience in such valuation and not affiliated with the Company shall be required if the fair market value of such Restricted Payment or Restricted Payments for any series of transactions exceeds $2.0 million. At least quarterly, the Company shall deliver to the Trustee an Officers' Certificate stating that all Restricted Payments during such quarter were permitted and setting forth may be reduced may not exceed the basis upon which lesser of (a) the calculations required by this Section 4.07 were computed, together with a copy of any fairness opinion or appraisal required by this Indenture. If a Guarantee constituted a Restricted Investment at the time made, then the payment under such Guarantee shall not constitute an additional Restricted Investment. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default or an Event of Default. In the event of any such designation, all outstanding Investments owned cash proceeds received by the Company and its Restricted Subsidiaries in connection with such net reduction and (b) the initial amount of such Investment. If the aggregate amount of all Restricted Payments calculated under the foregoing provision includes an Investment in an Unrestricted Subsidiary or other Person that thereafter becomes a Restricted Subsidiary, such Investment will no longer be counted as a Restricted Payment for purposes of calculating the aggregate amount of Restricted Payments. For the purpose of making any calculations under this Indenture, (a) an Investment will include the fair market value of the net assets of any Restricted Subsidiary at the time that such Restricted Subsidiary is designated an Unrestricted Subsidiary and will exclude the fair market value of the net assets of any Unrestricted Subsidiary that is designated as a Restricted Subsidiary, (b) any property transferred to or from an Unrestricted Subsidiary will be valued at fair market value at the time of such transfer, provided that, in each case, the fair market value of an asset or property is as determined by the Board of Directors in good faith, and (c) subject to the foregoing, the amount of any Restricted Payment, if other than cash, will be determined by the Board of Directors, whose good faith determination will be conclusive. The Board of Directors may designate a Restricted Subsidiary to be an Unrestricted Subsidiary in compliance with Section 4.17 hereof. Upon such designation, all outstanding Investments by the Company and its Restricted Subsidiaries (except to the extent repaid in cash) in the Subsidiary so designated shall will be deemed to be an Investment Restricted Payments made as of at the time of such designation and shall will reduce the amount available for Restricted Payments under the first paragraph of this Section 4.07 or Permitted Investments, as applicable. All such outstanding Investments shall be deemed to constitute Restricted Investments in an amount equal to the fair market value of such Investments at the time of such designation4.07. Such designation shall will only be permitted if such Restricted Payment would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if such redesignation would not cause a Default or an Event of Default. Any such designation by the Board of Directors shall be evidenced to the Trustee by filing with the Trustee a certified copy of the board resolution giving effect to such designation and an Officers' Certificate certifying that such designation complied with the foregoing conditions and was permitted by this Section 4.07. If, at any time, any Unrestricted Subsidiary would fail to meet the definition of an Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary of the Company as of such date (and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09 hereof, the Company shall be in default of Section 4.09 hereof). The Board of Directors of the Company may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided that such designation shall be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of the Company of any outstanding Indebtedness of such Unrestricted Subsidiary and such designation shall only be permitted if (a) such Indebtedness is permitted under Section 4.09 hereof, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period, and (b) no Default or Event of Default would be in existence following such designation.
Appears in 1 contract
Sources: Indenture (Iron Mountain Inc /De)
million. The preceding provisions Any such agreement shall not prohibit: (i) the payment of any dividend within 60 days after the date of declaration thereof, if at date of declaration, such payment would have complied with amend the provisions of this Indenture; Agreement and the other Loan Documents to set forth the terms of each Class of Term Loans or Commitments established thereby (ii) including the redemption, repurchase, retirement, defeasance or other acquisition of any subordinated Indebtedness of amount and final maturity thereof (which shall not be earlier than the Company or any Guarantor or of any Equity Interests of the Company in exchange for, or out of the net cash proceeds of the substantially concurrent sale, issuance of or contribution for, (other than to a Restricted Subsidiary of the CompanyRevolving Maturity Date), Equity Interests of the Company (other than Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such payment, redemption, repurchase, retirement, defeasance, other acquisition or dividend or distribution shall be excluded from clause (c) of the preceding paragraph; (iii) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the defeasance, redemption, repurchase or other acquisition of subordinated Indebtedness with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness; (iv) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the payment of any dividend or distribution by a Restricted Subsidiary of the Company to the holders of its common Equity Interests on a pro rata basis; (v) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company held by any present, former or future employee, director or Consultant of the Company's (or any of its Restricted Subsidiaries or any parent of the Company) pursuant to any management equity subscription agreement or stock option agreement in effect as of the date of this Indenture or any other similar agreement; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall not exceed $2.0 million in any twelve-month period (with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $4.0 million in any calendar year); provided that such amount in any calendar year may be increased by an amount not to exceed (A) the cash proceeds from the sale of Equity Interests of the Company, any parent of the Company or any of its Restricted Subsidiaries to present, former or future directors, Consultants or employees of the Company, its Restricted Subsidiaries or any parent of the Company that occurred since February 20, 2001 (to the extent the cash proceeds from the sale of such Equity Interest have not otherwise been included in clause (c) of the immediately preceding paragraph), plus (B) the cash proceeds of key man life insurance policies received by the Company, its Restricted Subsidiaries or any parent of the Company since February 20, 2001; and provided that cancellation of Indebtedness owing to the Company from present, former or future directors, Consultants, or employees of the Company, any of its Restricted Subsidiaries or any parent of the Company the proceeds of which were used solely to purchase Equity Interests of the Company will not be deemed to constitute a Restricted Payment so long as the value of such Equity Interests issued did not increase clause (c) of the preceding paragraph; (vi) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, Restricted Investments made after the date of this Indenture having an aggregate Fair Market Value, taken together with all other Investments made pursuant to this clause (vi) and, without duplication, Investments made pursuant to the this clause (vi) and, without duplication, Investments made pursuant to the comparable clause of the indentures provisions relating to the Existing Notes that are at that time outstanding (without giving effect to any write-up, write-off amortization or write-down), not to exceed 5% of the Company's Consolidated Tangible Assets as of the end of the fiscal quarter most recently completed (with Fair Market Value of each Investment being measured at the time made and without giving effect to subsequent changes in value); (vii) repurchases of Equity Interests deemed to occur upon exercise of stock options if such Equity Interests represent a portion of the exercise price of such options; (viii) so long as no Default or Event of Default has occurred and is continuing or would be caused therebymandatory prepayment thereof, the payment interest to accrue and be payable thereon and any fees to be payable in respect thereof) and to effect such other changes (including changes to the provisions of dividends on this Section, Section 2.14 and the Company's Capital Stock definition of up to 6% per annum of "Required Lenders") as Borrower and the net proceeds received by the Company in its March, 2002 initial public offering; (ix) Investments in Unrestricted Subsidiaries that are made with Excluded Contributions; (x) non-cash Investments in Unrestricted Subsidiaries in the form of administrative, financial, accounting, management, Administrative Agent shall deem necessary or other similar services (together with a non-cash allocation of corporate overhead), in each case in the ordinary course of business; (xi) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the payment of dividends on Disqualified Stock which is issued in accordance with Section 4.09 hereof; and (xii) transactions contemplated by the offering memorandum dated September 24, 2003 advisable in connection with the issuance of the Notes under the caption "Use of Proceeds". The amount of all Restricted Payments (other than cash) shall be the Fair Market Value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued to or by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment; provided that, notwithstanding the other provisions of this Indenture, with respect to this covenant, an MAI appraiser, accounting firm or valuation firm with experience in such valuation and not affiliated with the Company shall be required if the fair market value of such Restricted Payment or Restricted Payments for any series of transactions exceeds $2.0 million. At least quarterly, the Company shall deliver to the Trustee an Officers' Certificate stating that all Restricted Payments during such quarter were permitted and setting forth the basis upon which the calculations required by this Section 4.07 were computed, together with a copy of any fairness opinion or appraisal required by this Indenture. If a Guarantee constituted a Restricted Investment at the time made, then the payment under such Guarantee shall not constitute an additional Restricted Investment. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default or an Event of Default. In the event establishment of any such designationClass; provided that no such agreement shall (i) effect any change described in any of clauses (i)-(viii) of, all outstanding Investments owned by or the Company and its Restricted Subsidiaries proviso to, paragraph (b) of this Section without the consent of each person required to consent to such change under such clause (it being agreed, however, that any increase in the Subsidiary Revolving Commitments or establishment of any Class of Term Loans will not, of itself, be deemed to effect any of the changes described in clauses (vi) through (viii) and clause (1) of such paragraph (b)), (ii) amend Article V, VI or VIII to establish any affirmative or negative covenant, Event of Default or remedy that by its terms benefits one or more Classes, but not all Classes, of Loans or Borrowings without the prior written consent of Lenders holding a majority in interest of the Loans and Commitments of each Class not so designated benefited (it being agreed that no provision requiring Borrower to prepay Term Loans of one or more Classes pursuant to Sections 2.10(c) through (g) shall be deemed to be an Investment made violate this clause) or (iii) change any other provision of this Agreement or any other Loan Document that creates rights in favor of Lenders holding Loans or Commitments of any existing Class, other than as necessary or advisable in the judgment of the time Administrative Agent to cause such provision to take into account, or to make the benefits of such designation provision available to, Lenders holding Term Loans of such new Class or such new Commitments. The Loans, Commitments and Borrowings of any Class established pursuant to this paragraph shall constitute Loans, Commitments and Borrowings under, and shall reduce be entitled to all the amount available for Restricted Payments benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the Guarantees and security interests created by the Security Documents. The Loans Parties shall take any actions reasonably required by the Administrative Agent to ensure and/or demonstrate that the Lien and security interests granted by the Security Documents continue to be perfected under the first paragraph of this Section 4.07 UCC or Permitted Investments, as applicable. All such outstanding Investments shall be deemed to constitute Restricted Investments in an amount equal to otherwise after the fair market value of such Investments at the time of such designation. Such designation shall only be permitted if such Restricted Payment would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if such redesignation would not cause a Default or an Event of Default. Any such designation by the Board of Directors shall be evidenced to the Trustee by filing with the Trustee a certified copy of the board resolution giving effect to such designation and an Officers' Certificate certifying that such designation complied with the foregoing conditions and was permitted by this Section 4.07. If, at any time, any Unrestricted Subsidiary would fail to meet the definition of an Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary of the Company as of such date (and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09 hereof, the Company shall be in default of Section 4.09 hereof). The Board of Directors of the Company may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided that such designation shall be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of the Company establishment of any outstanding Indebtedness such Class of Term Loans or any such Unrestricted Subsidiary and such designation shall only be permitted if (a) such Indebtedness is permitted under Section 4.09 hereof, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period, and (b) no Default or Event of Default would be in existence following such designationnew Commitments.
Appears in 1 contract
million. The preceding foregoing provisions shall not prohibit: prohibit (i) the payment of any dividend within 60 days after the date of declaration thereof, if at the date of declaration, declaration such payment would have complied with the provisions of this Indenture; (ii) the redemption, repurchase, retirement, defeasance or other acquisition of any subordinated Indebtedness of the Company or any Guarantor or of any Equity Interests of the Company in exchange for, or out of the net cash proceeds of the substantially concurrent sale, issuance of or contribution for, sale (other than to a Restricted Subsidiary of the Company)) of, other Equity Interests of the Company (other than any Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such payment, redemption, repurchase, retirement, defeasance, defeasance or other acquisition or dividend or distribution shall be excluded from clause (c) (ii) of the preceding paragraph; (iii) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the defeasance, redemption, repurchase or other acquisition of subordinated Indebtedness of the Company or any Guarantor with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness; (iv) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the payment of any dividend or distribution by a Restricted Subsidiary of the Company to the holders of its common Equity Interests on a pro rata basis; (v) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company held by any present, former or future employee, director or Consultant member of the Company's (or any of its Restricted Subsidiaries or any parent of the CompanySubsidiaries') management pursuant to any management equity subscription agreement or stock option agreement in effect as of the date of this Indenture or any other similar agreement; provided that the aggregate price paid for all such repurchasedpurchase, redeemed, acquired or retired Equity Interests shall not exceed $2.0 million in any twelve-month period (with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $4.0 million in any calendar year); provided that such amount in any calendar year may be increased by an amount not to exceed (A) the cash proceeds from the sale of Equity Interests of the Company, any parent of the Company or any of its Restricted Subsidiaries to present, former or future directors, Consultants or employees of the Company, its Restricted Subsidiaries or any parent of the Company that occurred since February 20, 2001 (to the extent the cash proceeds from the sale of such Equity Interest have not otherwise been included in clause (c) of the immediately preceding paragraph), plus (B) the cash proceeds of key man life insurance policies received by the Company, its Restricted Subsidiaries or any parent of the Company since February 20, 2001; and provided that cancellation of Indebtedness owing to the Company from present, former or future directors, Consultants, or employees of the Company, any of its Restricted Subsidiaries or any parent of the Company the proceeds of which were used solely to purchase Equity Interests of the Company will not be deemed to constitute a Restricted Payment so long as the value of such Equity Interests issued did not increase clause (c) of the preceding paragraph; (vi) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, Restricted Investments made after the date of this Indenture having an aggregate Fair Market Value, taken together with all other Investments made pursuant to this clause (vi) and, without duplication, Investments made pursuant to the this clause (vi) and, without duplication, Investments made pursuant to the comparable clause of the indentures relating to the Existing Notes that are at that time outstanding (without giving effect to any write-up, write-off or write-down), not to exceed 5% of the Company's Consolidated Tangible Assets as of the end of the fiscal quarter most recently completed (with Fair Market Value of each Investment being measured at the time made and without giving effect to subsequent changes in value); (vii) repurchases of Equity Interests deemed to occur upon exercise of stock options if such Equity Interests represent a portion of the exercise price of such options; (viii) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the payment of dividends on the Company's Capital Stock of up to 6% per annum of the net proceeds received by the Company in its March, 2002 initial public offering; (ix) Investments in Unrestricted Subsidiaries that are made with Excluded Contributions; (x) non-cash Investments in Unrestricted Subsidiaries in the form of administrative, financial, accounting, management, or other similar services (together with a non-cash allocation of corporate overhead), in each case in the ordinary course of business; (xi) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the payment of dividends on Disqualified Stock which is issued in accordance with Section 4.09 hereof; and (xii) transactions contemplated by the offering memorandum dated September 24, 2003 in connection with the issuance of the Notes under the caption "Use of Proceeds". The amount of all Restricted Payments (other than cash) shall be the Fair Market Value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued to or by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment; provided that, notwithstanding the other provisions of this Indenture, with respect to this covenant, an MAI appraiser, accounting firm or valuation firm with experience in such valuation and not affiliated with the Company shall be required if the fair market value of such Restricted Payment or Restricted Payments for any series of transactions exceeds $2.0 million. At least quarterly, the Company shall deliver to the Trustee an Officers' Certificate stating that all Restricted Payments during such quarter were permitted and setting forth the basis upon which the calculations required by this Section 4.07 were computed, together with a copy of any fairness opinion or appraisal required by this Indenture. If a Guarantee constituted a Restricted Investment at the time made, then the payment under such Guarantee shall not constitute an additional Restricted Investment. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default or an Event of Default. In the event of any such designation, all outstanding Investments owned by the Company and its Restricted Subsidiaries in the Subsidiary so designated shall be deemed to be an Investment made as of the time of such designation and shall reduce the amount available for Restricted Payments under the first paragraph of this Section 4.07 or Permitted Investments, as applicable. All such outstanding Investments shall be deemed to constitute Restricted Investments in an amount equal to the fair market value of such Investments at the time of such designation. Such designation shall only be permitted if such Restricted Payment would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if such redesignation would not cause a Default or an Event of Default. Any such designation by the Board of Directors shall be evidenced to the Trustee by filing with the Trustee a certified copy of the board resolution giving effect to such designation and an Officers' Certificate certifying that such designation complied with the foregoing conditions and was permitted by this Section 4.07. If, at any time, any Unrestricted Subsidiary would fail to meet the definition of an Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary of the Company as of such date (and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09 hereof, the Company shall be in default of Section 4.09 hereof). The Board of Directors of the Company may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided that such designation shall be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of the Company of any outstanding Indebtedness of such Unrestricted Subsidiary and such designation shall only be permitted if (a) such Indebtedness is permitted under Section 4.09 hereof, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period, and (b) no Default or Event of Default would be in existence following such designation.stock
Appears in 1 contract
Sources: Indenture (O Ray Holdings Inc)
million. The preceding foregoing provisions shall not prohibit: prohibit (i) the payment of any dividend within 60 days after the date of declaration thereof, if at said date of declaration, declaration such payment would have complied with the provisions of this Indenture; (ii) the redemption, repurchase, retirement, defeasance or other acquisition of any Pari Passu Indebtedness or subordinated Indebtedness of the Company or any Guarantor or of any Equity Interests of the Company in exchange for, or out of the net cash proceeds of the substantially concurrent sale, issuance of or contribution for, sale (other than to a Restricted Subsidiary of the Company)) of, other Equity Interests of or a capital contribution to the Company (other than any Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such payment, redemption, repurchase, retirement, defeasance, defeasance or other acquisition or dividend or distribution shall be excluded from clause (c) (ii) of the preceding paragraph; (iii) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the defeasance, redemption, repurchase or other acquisition of Pari Passu Indebtedness or subordinated Indebtedness made by an exchange for, or with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness; (iv) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the payment of any dividend or distribution by a Restricted Subsidiary of the Company to the holders of its common Equity Interests on a pro rata basis; (v) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company held by any present, former or future employee, director or Consultant of the Company's (or any of its Restricted Subsidiaries or any parent of the Company) Management Investor pursuant to any management equity subscription agreement or stock option agreement in effect as of the date of this Indenture or any other similar agreementIndenture; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall not exceed $2.0 million 750,000 in any twelve-month period (with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $4.0 million in any calendar year); provided that such which amount in any calendar year may shall be increased by an the amount not to exceed (A) the of any net cash proceeds received from the sale after the date of this Indenture of Equity Interests of the Company, (other than Disqualified Stock) to any parent of the Company or any of its Restricted Subsidiaries to present, former or future directors, Consultants or employees of the Company, its Restricted Subsidiaries or any parent of the Company Management Investor that occurred since February 20, 2001 (to the extent the cash proceeds from the sale of such Equity Interest have not otherwise been included in clause (c) of the immediately preceding paragraph), plus (B) the cash proceeds of key man life insurance policies received by the Company, its Restricted Subsidiaries or any parent of the Company since February 20, 2001; and provided that cancellation of Indebtedness owing applied to the Company from present, former or future directors, Consultants, or employees payment of (x) Restricted Payments pursuant to the Company, any terms of its Restricted Subsidiaries or any parent of the Company the proceeds of which were used solely to purchase Equity Interests of the Company will not be deemed to constitute a Restricted Payment so long as the value of such Equity Interests issued did not increase clause (c) of the preceding paragraph; paragraph or (viy) so long as the aggregate price for all repurchased, redeemed, acquired or retired Equity Interests pursuant to the terms of this clause (v) exceeding $750,000 in any twelve month period) and no Default or Event of Default has shall have occurred and is be continuing or would be caused thereby, Restricted Investments made immediately after the date of this Indenture having an aggregate Fair Market Value, taken together with all other Investments made pursuant to this clause such transaction; and (vi) and, without duplication, Investments made the purchase of Equity Interests in the Company pursuant to the this clause (vi) and, without duplication, Investments made pursuant to the comparable clause of the indentures relating to the Existing Notes that are at that time outstanding (without giving effect to any write-up, write-off or write-down), not to exceed 5% of the Company's Consolidated Tangible Assets as of the end of the fiscal quarter most recently completed (with Fair Market Value of each Investment being measured at the time made and without giving effect to subsequent changes in value); (vii) repurchases of Equity Interests deemed to occur upon exercise of stock options if such Equity Interests represent a portion of the exercise price of such options; (viii) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the payment of dividends on the Company's Capital Stock of up to 6% per annum of the net proceeds received by the Company in its March, 2002 initial public offering; (ix) Investments in Unrestricted Subsidiaries that are made with Excluded Contributions; (x) non-cash Investments in Unrestricted Subsidiaries in the form of administrative, financial, accounting, management, or other similar services (together with a non-cash allocation of corporate overhead), in each case in the ordinary course of business; (xi) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the payment of dividends on Disqualified Stock which is issued in accordance with Section 4.09 hereof; and (xii) transactions contemplated by the offering memorandum dated September 24, 2003 in connection with the issuance of the Notes under the caption "Use of Proceeds". The amount of all Restricted Payments (other than cash) shall be the Fair Market Value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued to or by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment; provided that, notwithstanding the other provisions of this Indenture, with respect to this covenant, an MAI appraiser, accounting firm or valuation firm with experience in such valuation and not affiliated with the Company shall be required if the fair market value of such Restricted Payment or Restricted Payments for any series of transactions exceeds $2.0 million. At least quarterly, the Company shall deliver to the Trustee an Officers' Certificate stating that all Restricted Payments during such quarter were permitted and setting forth the basis upon which the calculations required by this Section 4.07 were computed, together with a copy of any fairness opinion or appraisal required by this Indenture. If a Guarantee constituted a Restricted Investment at the time made, then the payment under such Guarantee shall not constitute an additional Restricted InvestmentMerger Agreement. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default Default; provided that in no event shall the business operated on the date of this Indenture by any Guarantor existing on the date of this Indenture be transferred to or held by an Event Unrestricted Subsidiary. For purposes of Default. In the event of any making such designationdetermination, all outstanding Investments owned by the Company and its Restricted Subsidiaries (except to the extent repaid in cash) in the Subsidiary so designated shall be deemed to be an Investment made as of Restricted Payments at the time of such designation and shall reduce the amount available for Restricted Payments under the first paragraph of this Section 4.07 or Permitted Investments, as applicable4.07. All such outstanding Investments shall be deemed to constitute Restricted Investments in an amount equal to the fair market value of such Investments at the time of such designation. Such designation shall only be permitted if such Restricted Payment would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. The Board amount of Directors may redesignate any Unrestricted Subsidiary all Restricted Payments (other than cash) shall be the fair market value on the date of the Restricted Payment of the asset(s) or securities proposed to be a Restricted Subsidiary if such redesignation would not cause a Default transferred or an Event of Default. Any such designation issued by the Board Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of Directors any non-cash Restricted Payment shall be evidenced to determined in good faith by the Trustee by filing with the Trustee a certified copy of the board resolution giving effect to such designation and an Officers' Certificate certifying that such designation complied with the foregoing conditions and was permitted by this Section 4.07. If, at any time, any Unrestricted Subsidiary would fail to meet the definition of an Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary of the Company as of such date (and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09 hereof, the Company shall be in default of Section 4.09 hereof). The Board of Directors of the Company may at any time designate any Unrestricted Subsidiary and evidenced by a Board Resolution, such determination to be a based upon an opinion or appraisal issued by an accounting, appraisal or investment banking firm of national standing if such fair market value exceeds $3.0 million. Not later than the date of making any Restricted Subsidiary; provided Payment, the Company shall deliver to the Trustee an Officers' Certificate stating that such designation shall be deemed to be an incurrence of Indebtedness Restricted Payment is permitted and setting forth the basis upon which the calculations required by this Section 4.07 were computed, together with a Restricted Subsidiary of the Company copy of any outstanding Indebtedness of such Unrestricted Subsidiary and such designation shall only be permitted if (a) such Indebtedness is permitted under Section 4.09 hereof, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period, and (b) no Default fairness opinion or Event of Default would be in existence following such designationappraisal required by this Indenture.
Appears in 1 contract
Sources: Indenture (Gni Group Inc /De/)
million. The preceding provisions shall not prohibit: (i) the payment of any dividend within 60 days after the date of declaration thereof, if at date of declaration, such payment would have complied with the provisions of this Indenture; (ii) the redemption, repurchase, retirement, defeasance or other acquisition of any subordinated Indebtedness of the Company or any Guarantor or of any Equity Interests of the Company in exchange for, or out of the net cash proceeds of the substantially concurrent sale, issuance of or contribution for, (other than to a Restricted Subsidiary of the Company), Equity Interests of the Company (other than Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such payment, redemption, repurchase, retirement, defeasance, other acquisition or dividend or distribution shall be excluded from clause (c) of the preceding paragraph; (iii) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the defeasance, redemption, repurchase or other acquisition of subordinated Indebtedness with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness; (iv) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the payment of any dividend or distribution by a Restricted Subsidiary of the Company to the holders of its common Equity Interests on a pro rata basis; (v) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company held by any present, former or future employee, director or Consultant of the Company's (or any of its Restricted Subsidiaries or any parent of the Company) pursuant to any management equity subscription agreement or stock option agreement in effect as of the date of this Indenture or any other similar agreement; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall not exceed $2.0 million in any twelve-month period (with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $4.0 million in any calendar year); provided that such amount in any calendar year may be increased by an amount not to exceed (A) the cash proceeds from the sale of Equity Interests of the Company, any parent of the Company or any of its Restricted Subsidiaries to present, former or future directors, Consultants or employees of the Company, its Restricted Subsidiaries or any parent of the Company that occurred since February 20, 2001 (to the extent the cash proceeds from the sale of such Equity Interest have not otherwise been included in clause (c) of the immediately preceding paragraph), plus (B) the cash proceeds of key man life insurance policies received by the Company, its Restricted Subsidiaries or any parent of the Company since February 20, 2001; and provided that cancellation of Indebtedness owing to the Company from present, former or future directors, Consultants, or employees of the Company, any of its Restricted Subsidiaries or any parent of the Company the proceeds of which were used solely to purchase Equity Interests of the Company will not be deemed to constitute a Restricted Payment so long as the value of such Equity Interests issued did not increase clause (c) of the preceding paragraph; (vi) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, Restricted Investments made after the date of this Indenture having an aggregate Fair Market Value, taken together with all other Investments made pursuant to this clause (vi) and, without duplication, Investments made pursuant to the this clause (vi) and, without duplication, Investments made pursuant to the comparable clause of the indentures relating to the Existing Notes Indenture that are at that time outstanding (without giving effect to any write-up, write-off or write-down), not to exceed 5% of the Company's Consolidated Tangible Assets as of the end of the fiscal quarter most recently completed (with Fair Market Value of each Investment being measured at the time made and without giving effect to subsequent changes in value); (vii) repurchases of Equity Interests deemed to occur upon exercise of stock options if such Equity Interests represent a portion of the exercise price of such options; (viii) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the payment of dividends on the Company's Capital Stock of up to 6% per annum of the net proceeds received by the Company in its March, 2002 initial public offering; (ix) Investments in Unrestricted Subsidiaries that are made with Excluded Contributions; (x) non-cash Investments in Unrestricted Subsidiaries in the form of administrative, financial, accounting, management, or other similar services (together with a non-cash allocation of corporate overhead), in each case in the ordinary course of business; (xi) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the payment of dividends on Disqualified Stock which is issued in accordance with Section 4.09 hereof; and (xii) transactions contemplated by the offering memorandum dated September 24, 2003 of even date herewith in connection with the issuance of the Notes under the caption "Use of Proceeds". The amount of all Restricted Payments (other than cash) shall be the Fair Market Value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued to or by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment; provided that, notwithstanding the other provisions of this Indenture, with respect to this covenant, an MAI appraiser, accounting firm or valuation firm with experience in such valuation and not affiliated with the Company shall be required if the fair market value of such Restricted Payment or Restricted Payments for any series of transactions exceeds $2.0 million. At least quarterly, the Company shall deliver to the Trustee an Officers' Certificate stating that all Restricted Payments during such quarter were permitted and setting forth the basis upon which the calculations required by this Section 4.07 were computed, together with a copy of any fairness opinion or appraisal required by this Indenture. If a Guarantee constituted a Restricted Investment at the time made, then the payment under such Guarantee shall not constitute an additional Restricted Investment. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default or an Event of Default. In the event of any such designation, all outstanding Investments owned by the Company and its Restricted Subsidiaries in the Subsidiary so designated shall be deemed to be an Investment made as of the time of such designation and shall reduce the amount available for Restricted Payments under the first paragraph of this Section 4.07 or Permitted Investments, as applicable. All such outstanding Investments shall be deemed to constitute Restricted Investments in an amount equal to the fair market value of such Investments at the time of such designation. Such designation shall only be permitted if such Restricted Payment would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if such redesignation would not cause a Default or an Event of Default. Any such designation by the Board of Directors shall be evidenced to the Trustee by filing with the Trustee a certified copy of the board resolution giving effect to such designation and an Officers' Certificate certifying that such designation complied with the foregoing conditions and was permitted by this Section 4.07. If, at any time, any Unrestricted Subsidiary would fail to meet the definition of an Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary of the Company as of such date (and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09 hereof, the Company shall be in default of Section 4.09 hereof). The Board of Directors of the Company may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided that such designation shall be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of the Company of any outstanding Indebtedness of such Unrestricted Subsidiary and such designation shall only be permitted if (a) such Indebtedness is permitted under Section 4.09 hereof, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period, and (b) no Default or Event of Default would be in existence following such designation.
Appears in 1 contract
million. The preceding provisions Issuer shall not prohibit: not, directly or indirectly, in any event incur any Indebtedness that purports to be by its terms (i) or by the payment terms of any dividend within 60 days after the date of declaration thereof, if at date of declaration, agreement governing such payment would have complied with the provisions of this Indenture; (iiIndebtedness) the redemption, repurchase, retirement, defeasance or subordinated to any other acquisition of any subordinated Indebtedness of the Company Issuer unless such Indebtedness is also by its terms (or any Guarantor or on the terms of any Equity Interests agreement governing such Indebtedness) subordinated to the Notes to the same extent as such Indebtedness is subordinated to such other Indebtedness of the Company Issuer. No Guarantor will, directly or indirectly, in exchange for, any event incur any Indebtedness that purports to be by its terms (or out of by the net cash proceeds of the substantially concurrent sale, issuance of or contribution for, (other than to a Restricted Subsidiary of the Company), Equity Interests of the Company (other than Disqualified Stock); provided that the amount terms of any agreement governing such net cash proceeds that are utilized for Indebtedness) subordinated to any other Indebtedness of such payment, redemption, repurchase, retirement, defeasance, Guarantor unless such Indebtedness is also by its terms (or on the terms of any agreement governing such Indebtedness) subordinated to the Guarantee of such Guarantor to the same extent as such Indebtedness is subordinated to such other acquisition or dividend or distribution shall be excluded from clause (c) Indebtedness of the preceding paragraph; (iii) so long as no Default or Event such Guarantor. Notwithstanding any other provision of Default has occurred and is continuing or would be caused therebythis Section 4.06, the defeasanceaccrual of interest, redemption, repurchase or other acquisition accretion of subordinated Indebtedness with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness; (iv) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the payment of any dividend or distribution by a Restricted Subsidiary of the Company to the holders of its common Equity Interests on a pro rata basis; (v) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the repurchase, redemption or other acquisition or retirement for accreted value of any Equity Interests discount Indebtedness and payments of the Company or any Restricted Subsidiary of the Company held by any present, former or future employee, director or Consultant of the Company's (or any of its Restricted Subsidiaries or any parent of the Company) pursuant to any management equity subscription agreement or stock option agreement in effect as of the date of this Indenture or any other similar agreement; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall not exceed $2.0 million in any twelve-month period (with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $4.0 million in any calendar year); provided that such amount in any calendar year may be increased by an amount not to exceed (A) the cash proceeds from the sale of Equity Interests of the Company, any parent of the Company or any of its Restricted Subsidiaries to present, former or future directors, Consultants or employees of the Company, its Restricted Subsidiaries or any parent of the Company that occurred since February 20, 2001 (to the extent the cash proceeds from the sale of such Equity Interest have not otherwise been included in clause (c) of the immediately preceding paragraph), plus (B) the cash proceeds of key man life insurance policies received by the Company, its Restricted Subsidiaries or any parent of the Company since February 20, 2001; and provided that cancellation of Indebtedness owing to the Company from present, former or future directors, Consultants, or employees of the Company, any of its Restricted Subsidiaries or any parent of the Company the proceeds of which were used solely to purchase Equity Interests of the Company will not be deemed to constitute a Restricted Payment so long as the value of such Equity Interests issued did not increase clause (c) of the preceding paragraph; (vi) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, Restricted Investments made after the date of this Indenture having an aggregate Fair Market Value, taken together with all other Investments made pursuant to this clause (vi) and, without duplication, Investments made pursuant to the this clause (vi) and, without duplication, Investments made pursuant to the comparable clause of the indentures relating to the Existing Notes that are at that time outstanding (without giving effect to any write-up, write-off or write-down), not to exceed 5% of the Company's Consolidated Tangible Assets as of the end of the fiscal quarter most recently completed (with Fair Market Value of each Investment being measured at the time made and without giving effect to subsequent changes in value); (vii) repurchases of Equity Interests deemed to occur upon exercise of stock options if such Equity Interests represent a portion of the exercise price of such options; (viii) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the payment of dividends on the Company's Capital Stock of up to 6% per annum of the net proceeds received by the Company in its March, 2002 initial public offering; (ix) Investments in Unrestricted Subsidiaries that are made with Excluded Contributions; (x) non-cash Investments in Unrestricted Subsidiaries interest in the form of administrative, financial, accounting, management, or other similar services (together with a non-cash allocation of corporate overhead), in each case in the ordinary course of business; (xi) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the payment of dividends on Disqualified Stock which is issued in accordance with Section 4.09 hereof; and (xii) transactions contemplated by the offering memorandum dated September 24, 2003 in connection with the issuance of the Notes under the caption "Use of Proceeds". The amount of all Restricted Payments (other than cash) shall be the Fair Market Value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued to or by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment; provided that, notwithstanding the other provisions of this Indenture, with respect to this covenant, an MAI appraiser, accounting firm or valuation firm with experience in such valuation and additional subordinated Indebtedness will not affiliated with the Company shall be required if the fair market value of such Restricted Payment or Restricted Payments for any series of transactions exceeds $2.0 million. At least quarterly, the Company shall deliver to the Trustee an Officers' Certificate stating that all Restricted Payments during such quarter were permitted and setting forth the basis upon which the calculations required by this Section 4.07 were computed, together with a copy of any fairness opinion or appraisal required by this Indenture. If a Guarantee constituted a Restricted Investment at the time made, then the payment under such Guarantee shall not constitute an additional Restricted Investment. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default or an Event of Default. In the event of any such designation, all outstanding Investments owned by the Company and its Restricted Subsidiaries in the Subsidiary so designated shall be deemed to be an Investment made as of the time of such designation and shall reduce the amount available for Restricted Payments under the first paragraph of this Section 4.07 or Permitted Investments, as applicable. All such outstanding Investments shall be deemed to constitute Restricted Investments in an amount equal to the fair market value of such Investments at the time of such designation. Such designation shall only be permitted if such Restricted Payment would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if such redesignation would not cause a Default or an Event of Default. Any such designation by the Board of Directors shall be evidenced to the Trustee by filing with the Trustee a certified copy of the board resolution giving effect to such designation and an Officers' Certificate certifying that such designation complied with the foregoing conditions and was permitted by this Section 4.07. If, at any time, any Unrestricted Subsidiary would fail to meet the definition of an Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary of the Company as of such date (and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09 hereof, the Company shall be in default of Section 4.09 hereof). The Board of Directors of the Company may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided that such designation shall be deemed to be an incurrence of Indebtedness by for purposes of this Section 4.06, and the maximum amount of Indebtedness that the Issuer or a Restricted Subsidiary may incur pursuant to this Section 4.06 shall not be deemed to be exceeded solely as a result of fluctuations in the exchange rates of currencies. For purposes of determining compliance with this Section 4.06, in the event that an item of Indebtedness meets the criteria of more than one of the Company categories of any outstanding Permitted Indebtedness or is entitled to be incurred pursuant to the first paragraph of such Unrestricted Subsidiary and such designation shall only be permitted if (a) this Section 4.06, the Issuer shall, in its sole discretion at the time such Indebtedness is permitted under incurred, classify, and may from time to time reclassify, such Indebtedness (or part thereof) in any manner that complies with this Section 4.09 4.06 and such Indebtedness (or part thereof) shall be treated as having been incurred pursuant to only one of such clauses or pursuant to the first paragraph hereof, calculated on a pro forma basis as if and such designation had occurred at the beginning Indebtedness may be divided and classified in more than one of the four-quarter reference period, and (b) no Default or Event of Default would be in existence following such designationclassifications.
Appears in 1 contract
Sources: Indenture (Canwest Media Inc)
million. The preceding foregoing provisions shall will not prohibit: prohibit (i) the payment of any dividend within 60 days after the date of declaration thereof, if at said date of declaration, declaration such payment would have complied with the provisions of this Indenturehereof; (ii) the redemption, repurchase, retirement, defeasance or other acquisition of any subordinated Indebtedness of the Company or any Guarantor or of any Equity Interests of the Company in exchange for, or out of the net cash proceeds of the substantially concurrent sale, issuance of or contribution for, sale (other than to a Restricted Subsidiary of the Company)) of, other Equity Interests of the Company (other than any Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such payment, redemption, repurchase, retirement, defeasance, defeasance or other acquisition or dividend or distribution shall be excluded from clause (cc)(ii) of the preceding paragraph; (iii) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the defeasance, redemption, repurchase repurchase, retirement or other acquisition of subordinated Indebtedness in exchange for, or with the net cash proceeds from from, an incurrence of Permitted Refinancing Indebtedness; (iv) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the payment of any dividend (or the making of a similar distribution or redemption) by a Restricted Subsidiary of the Company to the holders of its common Equity Interests on a pro rata basis; (v) so long as no Default or Event of Default has shall have occurred and is continuing or would be caused therebycontinuing, the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company Company, or any Restricted Subsidiary of the Company Company, held by any present, former or future employee, director or Consultant member of the Company's (or any of its Restricted Subsidiaries Subsidiaries') management, employees or any parent of the Company) consultants pursuant to any management management, employee or consultant equity subscription agreement or stock option agreement in effect as of the date of this Indenture or any other similar agreementhereof; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall not exceed $2.0 million in any twelve-month period (with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) sum of $4.0 million in any calendar year); provided that such amount in any calendar year may be increased by an amount not to exceed (A) the cash proceeds from the sale of Equity Interests of the Company, any parent of the Company or any of its Restricted Subsidiaries to present, former or future directors, Consultants or employees of the Company, its Restricted Subsidiaries or any parent of the Company that occurred since February 20, 2001 (to the extent the cash proceeds from the sale of such Equity Interest have not otherwise been included in clause (c) of the immediately preceding paragraph), plus $10.0 million and (B) the aggregate cash proceeds of key man life insurance policies received by the Company, Company from any reissuance of Equity Interests by the Company to members of management of the Company and its Restricted Subsidiaries or any parent (provided that the cash proceeds referred to in this clause (B) shall be excluded from clause (c)(ii), of the Company since February 20, 2001preceding paragraph); and provided that cancellation of Indebtedness owing to (vi) distributions made by the Company from presenton the date hereof, former or future directors, Consultants, or employees of the Company, any of its Restricted Subsidiaries or any parent of the Company the proceeds of which were used are utilized solely to purchase Equity Interests of consummate the Company will not be deemed to constitute a Restricted Payment so long as the value of such Equity Interests issued did not increase clause Recapitalization; and (c) of the preceding paragraph; (vivii) so long as no Default or Event of Default has occurred and is continuing continuing, the declaration and payment of dividends to holders of any class or would be caused thereby, Restricted Investments made series of Disqualified Stock of the Company issued after the date of this Indenture having an aggregate Fair Market Value, taken together with all other Investments made pursuant to this clause (vi) and, without duplication, Investments made pursuant to the this clause (vi) and, without duplication, Investments made pursuant to the comparable clause of the indentures relating to the Existing Notes that are at that time outstanding (without giving effect to any write-up, write-off or write-down), not to exceed 5% of the Company's Consolidated Tangible Assets as of the end of the fiscal quarter most recently completed (with Fair Market Value of each Investment being measured at the time made and without giving effect to subsequent changes in value); (vii) repurchases of Equity Interests deemed to occur upon exercise of stock options if such Equity Interests represent a portion of the exercise price of such options; (viii) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the payment of dividends on the Company's Capital Stock of up to 6% per annum of the net proceeds received by the Company in its March, 2002 initial public offering; (ix) Investments in Unrestricted Subsidiaries that are made with Excluded Contributions; (x) non-cash Investments in Unrestricted Subsidiaries in the form of administrative, financial, accounting, management, or other similar services (together with a non-cash allocation of corporate overhead), in each case in the ordinary course of business; (xi) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the payment of dividends on Disqualified Stock which is issued hereof in accordance with Section 4.09 hereof; and (xii) transactions contemplated by the offering memorandum dated September 24, 2003 in connection with the issuance of the Notes under the caption "Use of Proceeds". The amount of all Restricted Payments (other than cash) shall be the Fair Market Value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued to or by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment; provided that, notwithstanding the other provisions of this Indenture, with respect to this covenant, an MAI appraiser, accounting firm or valuation firm with experience in such valuation and not affiliated with the Company shall be required if the fair market value of such Restricted Payment or Restricted Payments for any series of transactions exceeds $2.0 million. At least quarterly, the Company shall deliver to the Trustee an Officers' Certificate stating that all Restricted Payments during such quarter were permitted and setting forth the basis upon which the calculations required by this Section 4.07 were computed, together with a copy of any fairness opinion or appraisal required by this Indenture. If a Guarantee constituted a Restricted Investment at the time made, then the payment under such Guarantee shall not constitute an additional Restricted Investment4.09. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default or an Event of Default. In the event For purposes of any making such designationdetermination, all outstanding Investments owned by the Company and its Restricted Subsidiaries (except to the extent repaid in cash) in the Subsidiary so designated shall will be deemed to be an Investment made as of Restricted Payments at the time of such designation and shall will reduce the amount available for Restricted Payments under the first paragraph of this Section 4.07 or Permitted Investments, as applicablecovenant. All such outstanding Investments shall will be deemed to constitute Restricted Investments in an amount equal to the greater of (i) the net book value of such Investments at the time of such designation and (ii) the fair market value of such Investments at the time of such designation. Such designation shall will only be permitted if such Restricted Payment would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. The Board amount of Directors may redesignate any Unrestricted Subsidiary (i) all Restricted Payments (other than cash) shall be the fair market value on the date of the Restricted Payment of the asset(s) or securities proposed to be a transferred or issued by the Company or such Restricted Subsidiary if Subsidiary, as the case may be, pursuant to the Restricted Payment and (ii) Qualified Proceeds (other than cash) shall be the fair market value on the date of receipt thereof by the Company of such redesignation would not cause a Default or an Event Qualified Proceeds. The fair market value of Default. Any such designation any non-cash Restricted Payment and Qualified Proceeds shall be determined by the Board of Directors whose resolution with respect thereto shall be evidenced delivered to the Trustee, such determination to be based upon an opinion or appraisal issued by an accounting, appraisal or investment banking firm of national standing if such fair market value exceeds $10.0 million. Not later than the date of making any Restricted Payment, the Company shall deliver to the Trustee by filing with the Trustee a certified copy of the board resolution giving effect to such designation and an Officers' Certificate certifying stating that such designation complied Restricted Payment is permitted and setting forth the basis upon which the calculations required by Section 4.07 were computed, together with the foregoing conditions and was permitted a copy of any fairness opinion or appraisal required by this Section 4.07. If, at any time, any Unrestricted Subsidiary would fail to meet the definition of an Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary of the Company as of such date (and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09 hereof, the Company shall be in default of Section 4.09 hereof). The Board of Directors of the Company may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided that such designation shall be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of the Company of any outstanding Indebtedness of such Unrestricted Subsidiary and such designation shall only be permitted if (a) such Indebtedness is permitted under Section 4.09 hereof, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period, and (b) no Default or Event of Default would be in existence following such designationIndenture.
Appears in 1 contract
Sources: Indenture (J Crew Group Inc)
million. The preceding foregoing provisions shall will not prohibitprohibit any of the following: (ia) the payment of any dividend within 60 days after the date of declaration thereof, if at said date of declaration, declaration such payment would have complied with the provisions of this Indenture; (iib) the redemption, repurchase, retirement, defeasance or other acquisition of any subordinated Indebtedness of the Company or any Guarantor or of any Equity Interests of the Company in exchange for, or out of the net cash proceeds of the substantially concurrent sale, issuance of or contribution for, sale (other than to a Restricted Subsidiary of the Company)) of, other Equity Interests of the Company (other than any Disqualified Stock); , provided that the amount of any such net cash proceeds that are utilized for any such payment, redemption, repurchase, retirement, defeasance, defeasance or other acquisition or dividend or distribution shall be excluded from clause (ciii)(B) of the preceding paragraph; (iiic) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the defeasance, redemption, repurchase repurchase, retirement or other acquisition of subordinated Indebtedness with the net cash proceeds from an incurrence of of, or in exchange for, Permitted Refinancing Indebtedness; (ivd) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the payment of any dividend or distribution by a Restricted Subsidiary of the Company to the holders Company or any Wholly Owned Restricted Subsidiary of its common Equity Interests on a pro rata basisthe Company; (ve) so long as no Default or Event of Default has shall have occurred and is continuing or would be caused therebycontinuing, the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company held by any present, former or future employee, director or Consultant employee of the Company's (or any of its Restricted Subsidiaries or any parent of the Company) pursuant to any management equity subscription agreement or stock option agreement in effect as of the date of this Indenture or any other similar agreement; Subsidiaries, provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall not exceed $2.0 million 500,000 (or the equivalent thereof in any twelve-month period (with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following provisoother currency or currency unit) of $4.0 million in any calendar year); provided that such amount in any calendar year may be increased by an amount not to exceed and (Af) the cash proceeds from the sale acquisition of Equity Interests of the Company, any parent of Company in connection with the Company or any of its Restricted Subsidiaries to present, former or future directors, Consultants or employees of the Company, its Restricted Subsidiaries or any parent of the Company that occurred since February 20, 2001 (to the extent the cash proceeds from the sale of such Equity Interest have not otherwise been included in clause (c) of the immediately preceding paragraph), plus (B) the cash proceeds of key man life insurance policies received by the Company, its Restricted Subsidiaries or any parent of the Company since February 20, 2001; and provided that cancellation of Indebtedness owing to the Company from present, former or future directors, Consultants, or employees of the Company, any of its Restricted Subsidiaries or any parent of the Company the proceeds of which were used solely to purchase Equity Interests of the Company will not be deemed to constitute a Restricted Payment so long as the value of such Equity Interests issued did not increase clause (c) of the preceding paragraph; (vi) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, Restricted Investments made after the date of this Indenture having an aggregate Fair Market Value, taken together with all other Investments made pursuant to this clause (vi) and, without duplication, Investments made pursuant to the this clause (vi) and, without duplication, Investments made pursuant to the comparable clause of the indentures relating to the Existing Notes that are at that time outstanding (without giving effect to any write-up, write-off or write-down), not to exceed 5% of the Company's Consolidated Tangible Assets as of the end of the fiscal quarter most recently completed (with Fair Market Value of each Investment being measured at the time made and without giving effect to subsequent changes in value); (vii) repurchases of Equity Interests deemed to occur upon exercise of stock options if such Equity Interests represent a portion or stock appreciation rights by way of the cashless exercise price of such options; (viii) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the payment of dividends on the Company's Capital Stock of up to 6% per annum of the net proceeds received by the Company in its March, 2002 initial public offering; (ix) Investments in Unrestricted Subsidiaries that are made with Excluded Contributions; (x) non-cash Investments in Unrestricted Subsidiaries in the form of administrative, financial, accounting, management, or other similar services (together with a non-cash allocation of corporate overhead), in each case in the ordinary course of business; (xi) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the payment of dividends on Disqualified Stock which is issued in accordance with Section 4.09 hereof; and (xii) transactions contemplated by the offering memorandum dated September 24, 2003 in connection with the issuance satisfaction of the Notes under the caption "Use of Proceeds". The amount of all Restricted Payments (other than cash) shall be the Fair Market Value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued to or by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment; provided that, notwithstanding the other provisions of this Indenture, with respect to this covenant, an MAI appraiser, accounting firm or valuation firm with experience in such valuation and not affiliated with the Company shall be required if the fair market value of such Restricted Payment or Restricted Payments for any series of transactions exceeds $2.0 million. At least quarterly, the Company shall deliver to the Trustee an Officers' Certificate stating that all Restricted Payments during such quarter were permitted and setting forth the basis upon which the calculations required by this Section 4.07 were computed, together with a copy of any fairness opinion or appraisal required by this Indenture. If a Guarantee constituted a Restricted Investment at the time made, then the payment under such Guarantee shall not constitute an additional Restricted Investmentwithholding tax obligations. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default or an Event of Default. In the event For purposes of any making such designationdetermination, all outstanding Investments owned by the Company and its Restricted Subsidiaries (except to the extent repaid in cash) in the Subsidiary so designated shall be deemed to be an Investment made as of Restricted Payments at the time of such designation and shall reduce the amount available for Restricted Payments under the first paragraph of this Section 4.07 or Permitted Investments, as applicabledesignation. All such outstanding Investments shall will be deemed to constitute Restricted Investments in an amount equal to the fair market value of such Investments at the time of such designation. Such designation shall only be permitted if such Restricted Payment would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if such redesignation would not cause a Default or an Event of Default. Any such designation by the Board of Directors shall be evidenced to the Trustee by filing with the Trustee a certified copy of the board resolution giving effect to such designation and an Officers' Certificate certifying that such designation complied with the foregoing conditions and was permitted by this Section 4.07. If, at any time, any Unrestricted Subsidiary would fail to meet the definition of an Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary of the Company as of such date (and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09 hereof, the Company shall be in default of Section 4.09 hereof). The Board of Directors of the Company may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary; , provided that such designation shall be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of the Company of any outstanding Indebtedness of such Unrestricted Subsidiary and such designation shall only be permitted if (a) such Indebtedness is permitted under Section 4.09 hereof, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period, and (b) no Default or Event of Default would be in existence following such designation. Any designation of a Subsidiary as an Unrestricted Subsidiary shall be evidenced to the Trustee by filing with the Trustee a certified copy of a resolution of the Board of Directors giving effect to such designation and an Officers' Certificate certifying that such designation complied with the terms of the definition of Unrestricted Subsidiary set forth in this Indenture and with this Section 4.07. The amount of all Restricted Payments (other than cash) shall be the fair market value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall be determined in the manner contemplated by the definition of the term "fair market value," and the results of such determination shall be evidenced by an Officers' Certificate delivered to the Trustee. Not later than five Business Days following the date of making any Restricted Payment, the Company shall deliver to the Trustee an Officers' Certificate stating that such Restricted Payment is permitted and setting forth the basis upon which the calculations required by this Section 4.07 were computed.
Appears in 1 contract
Sources: Indenture (Pumpkin Air Inc)
million. The preceding foregoing provisions shall not prohibit: prohibit (i) the payment of any dividend within 60 days after the date of declaration thereof, if at said date of declaration, declaration such payment would have complied with the provisions of this Indenture; (ii) the redemption, repurchase, retirement, defeasance or other acquisition of any pari passu or subordinated Indebtedness of the Company or any Guarantor or of any Equity Interests of the Company in exchange for, or out of the net cash proceeds of the substantially concurrent sale, issuance of or contribution for, sale (other than to a Restricted Subsidiary of the Company)) of, other Equity Interests of the Company (other than any Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such payment, redemption, repurchase, retirement, defeasance, defeasance or other acquisition or dividend or distribution shall be excluded from clause (cc)(ii) of the preceding paragraph; (iii) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the defeasance, redemption, repurchase or other acquisition of pari passu or subordinated Indebtedness with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness; (iv) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the payment of any dividend or distribution by a Restricted Subsidiary of the Company to the holders of its common Equity Interests on a pro rata basis; and (v) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company held by any present, former or future employee, director or Consultant member of the Company's (or any of its Restricted Subsidiaries or any parent of the CompanySubsidiaries') management pursuant to any management equity subscription agreement or stock option agreement in effect as of the date of this Indenture or any other similar agreement; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall not exceed $2.0 million 500,000 in any twelve-month period (with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $4.0 million in any calendar year); provided that such amount in any calendar year may be increased by an amount not to exceed (A) the cash proceeds from the sale of Equity Interests of the Company, any parent of the Company or any of its Restricted Subsidiaries to present, former or future directors, Consultants or employees of the Company, its Restricted Subsidiaries or any parent of the Company that occurred since February 20, 2001 (to the extent the cash proceeds from the sale of such Equity Interest have not otherwise been included in clause (c) of the immediately preceding paragraph), plus (B) the cash proceeds of key man life insurance policies received by the Company, its Restricted Subsidiaries or any parent of the Company since February 20, 2001; and provided that cancellation of Indebtedness owing to the Company from present, former or future directors, Consultants, or employees of the Company, any of its Restricted Subsidiaries or any parent of the Company the proceeds of which were used solely to purchase Equity Interests of the Company will not be deemed to constitute a Restricted Payment so long as the value of such Equity Interests issued did not increase clause (c) of the preceding paragraph; (vi) so long as no Default or Event of Default has shall have occurred and is be continuing or would be caused thereby, Restricted Investments made immediately after the date of this Indenture having an aggregate Fair Market Value, taken together with all other Investments made pursuant to this clause (vi) and, without duplication, Investments made pursuant to the this clause (vi) and, without duplication, Investments made pursuant to the comparable clause of the indentures relating to the Existing Notes that are at that time outstanding (without giving effect to any write-up, write-off or write-down), not to exceed 5% of the Company's Consolidated Tangible Assets as of the end of the fiscal quarter most recently completed (with Fair Market Value of each Investment being measured at the time made and without giving effect to subsequent changes in value); (vii) repurchases of Equity Interests deemed to occur upon exercise of stock options if such Equity Interests represent a portion of the exercise price of such options; (viii) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the payment of dividends on the Company's Capital Stock of up to 6% per annum of the net proceeds received by the Company in its March, 2002 initial public offering; (ix) Investments in Unrestricted Subsidiaries that are made with Excluded Contributions; (x) non-cash Investments in Unrestricted Subsidiaries in the form of administrative, financial, accounting, management, or other similar services (together with a non-cash allocation of corporate overhead), in each case in the ordinary course of business; (xi) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the payment of dividends on Disqualified Stock which is issued in accordance with Section 4.09 hereof; and (xii) transactions contemplated by the offering memorandum dated September 24, 2003 in connection with the issuance of the Notes under the caption "Use of Proceeds". The amount of all Restricted Payments (other than cash) shall be the Fair Market Value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued to or by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment; provided that, notwithstanding the other provisions of this Indenture, with respect to this covenant, an MAI appraiser, accounting firm or valuation firm with experience in such valuation and not affiliated with the Company shall be required if the fair market value of such Restricted Payment or Restricted Payments for any series of transactions exceeds $2.0 million. At least quarterly, the Company shall deliver to the Trustee an Officers' Certificate stating that all Restricted Payments during such quarter were permitted and setting forth the basis upon which the calculations required by this Section 4.07 were computed, together with a copy of any fairness opinion or appraisal required by this Indenture. If a Guarantee constituted a Restricted Investment at the time made, then the payment under such Guarantee shall not constitute an additional Restricted Investmenttransaction. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default or an Event of Default. In the event For purposes of any making such designationdetermination, all outstanding Investments owned by the Company and its Restricted Subsidiaries (except to the extent repaid in cash) in the Subsidiary so designated shall be deemed to be an Investment made as of Restricted Payments at the time of such designation and shall reduce the amount available for Restricted Payments under the first paragraph of this Section 4.07 or Permitted Investments, as applicablecovenant. All such outstanding Investments shall be deemed to constitute Restricted Investments in an amount equal to the fair market value of such Investments at the time of such designation. Such designation shall only be permitted if such Restricted Payment would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. The Board amount of Directors may redesignate any Unrestricted Subsidiary all Restricted Payments (other than cash) shall be the fair market value on the date of the Restricted Payment of the asset(s) or securities proposed to be a transferred or issued by the Company or such Restricted Subsidiary if such redesignation would not cause a Default or an Event Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of Default. Any such designation any non-cash Restricted Payment shall be determined by the Board of Directors whose resolution with respect thereto shall be evidenced delivered to the Trustee, such determination to be based upon an opinion or appraisal issued by an accounting, appraisal or investment banking firm of national standing if such fair market value exceeds $10.0 million. Not later than the date of making any Restricted Payment, the Company shall deliver to the Trustee by filing with the Trustee a certified copy of the board resolution giving effect to such designation and an Officers' Certificate certifying stating that such designation complied with Restricted Payment is permitted and setting forth the foregoing conditions and was permitted basis upon which the calculations required by this Section 4.07. If4.07 were computed, at any time, any Unrestricted Subsidiary would fail to meet the definition of an Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary shall be deemed to be incurred by together with a Restricted Subsidiary of the Company as of such date (and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09 hereof, the Company shall be in default of Section 4.09 hereof). The Board of Directors of the Company may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided that such designation shall be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of the Company copy of any outstanding Indebtedness of such Unrestricted Subsidiary and such designation shall only be permitted if (a) such Indebtedness is permitted under Section 4.09 hereof, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period, and (b) no Default or Event of Default would be in existence following such designationfairness opinion required by this Indenture.
Appears in 1 contract
Sources: Indenture (Chattem Inc)
million. The preceding foregoing provisions shall will not prohibit: prohibit (iA) the payment of any dividend within 60 days after the date of declaration thereof, if at said date of declaration, declaration such payment would have complied with the provisions of this Indenture; (iiB) the redemption, repurchase, retirement, defeasance or other acquisition of any subordinated Indebtedness of the Company or any Guarantor or of any Equity Interests of the Company in exchange for, or out of the net cash proceeds of the substantially concurrent sale, issuance of or contribution for, (other than to a Restricted Subsidiary of the Company), Equity Interests of the Company (other than Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such payment, redemption, repurchase, retirement, defeasance, other acquisition or dividend or distribution shall be excluded from clause (c) of the preceding paragraph; (iii) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the defeasance, redemption, repurchase or other acquisition of subordinated Indebtedness with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness; (iv) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the payment of any dividend or distribution by a Restricted Subsidiary of the Company to the holders of its common Equity Interests on a pro rata basis; (v) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the repurchase, redemption retirement or other acquisition or retirement for value of any Equity Interests of the Company in exchange for, or any with the net cash proceeds of, the substantially concurrent sale (other than to a Restricted Subsidiary of the Company held by any present, former or future employee, director or Consultant Company) of other Equity Interests of the Company's Company (other than any Disqualified Stock); (C) the defeasance, redemption, repurchase, retirement or any other acquisition or retirement for value of its Indebtedness that is subordinated or pari passu in right of payment to the Notes in exchange for, or with the net cash proceeds of, a substantially concurrent issuance and sale (other than to a Restricted Subsidiaries or any parent Subsidiary of the Company) pursuant to any management equity subscription agreement or stock option agreement in effect as of the date of this Indenture or any other similar agreement; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall not exceed $2.0 million in any twelve-month period (with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $4.0 million in any calendar year); provided that such amount in any calendar year may be increased by an amount not to exceed (A) the cash proceeds from the sale of Equity Interests of the CompanyCompany (other than Disqualified Stock); (D) the defeasance, any parent redemption, repurchase, retirement or other acquisition or retirement for value of Indebtedness that is subordinated or pari passu in right of payment to the Notes in exchange for, or with the net cash proceeds of, a substantially concurrent issue and sale (other than to the Company or any of its Restricted Subsidiaries Subsidiaries) of Refinancing Indebtedness; (E) the repurchase of any Indebtedness subordinated or pari passu in right of payment to present, former or future directors, Consultants or employees the Notes at a purchase price not greater than 101% of the Companyprincipal amount of such Indebtedness in the event of a Change of Control in accordance with provisions similar to the covenant set forth in Section 4.14 hereof, its Restricted Subsidiaries provided that prior to or any parent contemporaneously with such repurchase the Company has made the Change of Control Offer as provided in such covenant with respect to the Notes and has repurchased all Notes validly tendered for payment in connection with such Change of Control Offer; and (F) additional payments to current or former employees or directors of the Company for repurchases of stock, stock options or other equity interests, provided that occurred since February 20, 2001 (to the extent the cash proceeds from the sale aggregate amount of all such Equity Interest have not otherwise been included in payments under this clause (cF) does not exceed $500,000 in any year and $2.0 million in the aggregate. The Restricted Payments described in clauses (B), (C), (E) and (F) of the immediately preceding paragraph), plus (B) paragraph will be Restricted Payments that will be permitted to be taken in accordance with such paragraph but will reduce the cash proceeds of key man life insurance policies received by the Company, its amount that would otherwise be available for Restricted Subsidiaries or any parent of the Company since February 20, 2001; and provided that cancellation of Indebtedness owing to the Company from present, former or future directors, Consultants, or employees of the Company, any of its Restricted Subsidiaries or any parent of the Company the proceeds of which were used solely to purchase Equity Interests of the Company will not be deemed to constitute a Restricted Payment so long as the value of such Equity Interests issued did not increase Payments under clause (ciii) of the preceding paragraph; (vi) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, Restricted Investments made after the date first paragraph of this Indenture having an aggregate Fair Market Valuesection, taken together with all other Investments made pursuant to this clause and the Restricted Payments described in clauses (viA) and, without duplication, Investments made pursuant to the this clause and (viD) and, without duplication, Investments made pursuant to the comparable clause of the indentures relating immediately preceding paragraph will be Restricted Payments that will be permitted to the Existing Notes that are at that time outstanding (without giving effect to any write-up, write-off or write-down), not to exceed 5% of the Company's Consolidated Tangible Assets as of the end of the fiscal quarter most recently completed (with Fair Market Value of each Investment being measured at the time made and without giving effect to subsequent changes in value); (vii) repurchases of Equity Interests deemed to occur upon exercise of stock options if such Equity Interests represent a portion of the exercise price of such options; (viii) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the payment of dividends on the Company's Capital Stock of up to 6% per annum of the net proceeds received by the Company in its March, 2002 initial public offering; (ix) Investments in Unrestricted Subsidiaries that are made with Excluded Contributions; (x) non-cash Investments in Unrestricted Subsidiaries in the form of administrative, financial, accounting, management, or other similar services (together with a non-cash allocation of corporate overhead), in each case in the ordinary course of business; (xi) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the payment of dividends on Disqualified Stock which is issued taken in accordance with Section 4.09 hereof; such paragraph and 37 will not reduce the amount that would otherwise be available for Restricted Payments under clause (xiiiii) transactions contemplated by the offering memorandum dated September 24, 2003 in connection with the issuance of the Notes under first paragraph of this section. If an Investment results in the caption "Use making of Proceeds". The a Restricted Payment, the aggregate amount of all Restricted Payments (other than cash) shall deemed to have been made as calculated under the foregoing provision 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 to or reduced by the Company amount of any net reduction in such Investment (resulting from the payment of interest or such Restricted Subsidiarydividends, as the case may beloan repayment, pursuant transfer of assets or otherwise) to the Restricted Paymentextent such net reduction is not included in the Company's EBITDA; provided thatprovided, notwithstanding however, that the other provisions total amount by which the aggregate amount of this Indenture, with respect to this covenant, an MAI appraiser, accounting firm or valuation firm with experience in such valuation and not affiliated with the Company shall be required if the fair market value of such Restricted Payment or Restricted Payments for any series of transactions exceeds $2.0 million. At least quarterly, the Company shall deliver to the Trustee an Officers' Certificate stating that all Restricted Payments during such quarter were permitted and setting forth may be reduced may not exceed the basis upon which lesser of (a) the calculations required by this Section 4.07 were computed, together with a copy of any fairness opinion or appraisal required by this Indenture. If a Guarantee constituted a Restricted Investment at the time made, then the payment under such Guarantee shall not constitute an additional Restricted Investment. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default or an Event of Default. In the event of any such designation, all outstanding Investments owned cash proceeds received by the Company and its Restricted Subsidiaries in connection with such net reduction and (b) the initial amount of such Investment. If the aggregate amount of all Restricted Payments calculated under the foregoing provision includes an Investment in an Unrestricted Subsidiary or other Person that thereafter becomes a Restricted Subsidiary, such Investment will no longer be counted as a Restricted Payment for purposes of calculating the aggregate amount of Restricted Payments. For the purpose of making any calculations under this Indenture, (a) an Investment will include the fair market value of the net assets of any Restricted Subsidiary at the time that such Restricted Subsidiary is designated an Unrestricted Subsidiary and will exclude the fair market value of the net assets of any Unrestricted Subsidiary that is designated as a Restricted Subsidiary, (b) any property transferred to or from an Unrestricted Subsidiary will be valued at fair market value at the time of such transfer, provided that, in each case, the fair market value of an asset or property is as determined by the Board of Directors in good faith, and (c) subject to the foregoing, the amount of any Restricted Payment, if other than cash, will be determined by the Board of Directors, whose good faith determination will be conclusive. The Board of Directors may designate a Restricted Subsidiary to be an Unrestricted Subsidiary in compliance with Section 4.17 hereof. Upon such designation, all outstanding Investments by the Company and its Restricted Subsidiaries (except to the extent repaid in cash) in the Subsidiary so designated shall will be deemed to be an Investment Restricted Payments made as of at the time of such designation and shall will reduce the amount available for Restricted Payments under the first paragraph of this Section 4.07 or Permitted Investments, as applicable. All such outstanding Investments shall be deemed to constitute Restricted Investments in an amount equal to the fair market value of such Investments at the time of such designation4.07. Such designation shall will only be permitted if such Restricted Payment would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if such redesignation would not cause a Default or an Event of Default. Any such designation by the Board of Directors shall be evidenced to the Trustee by filing with the Trustee a certified copy of the board resolution giving effect to such designation and an Officers' Certificate certifying that such designation complied with the foregoing conditions and was permitted by this Section 4.07. If, at any time, any Unrestricted Subsidiary would fail to meet the definition of an Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary of the Company as of such date (and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09 hereof, the Company shall be in default of Section 4.09 hereof). The Board of Directors of the Company may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided that such designation shall be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of the Company of any outstanding Indebtedness of such Unrestricted Subsidiary and such designation shall only be permitted if (a) such Indebtedness is permitted under Section 4.09 hereof, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period, and (b) no Default or Event of Default would be in existence following such designation.
Appears in 1 contract
Sources: Indenture (Iron Mountain Inc /De)
million. The preceding provisions Any such agreement shall not prohibit: (i) the payment of any dividend within 60 days after the date of declaration thereof, if at date of declaration, such payment would have complied with amend the provisions of this IndentureAgreement and the other Loan Documents to set forth the terms of each Class of Term Loans established thereby (including the amount and final maturity thereof (which shall not be earlier than the Tranche B Maturity Date), any provisions relating to the amortization or mandatory prepayment thereof, the interest to accrue and be payable thereon and any fees to be payable in respect thereof) and to effect such other changes (including changes to the provisions of this Section, Section 2.14 and the definition of “Required Lenders”) as Borrower and the Administrative Agent shall deem necessary or advisable in connection with the establishment of any such Class; provided that no such agreement shall (i) effect any change described in Section 11.02(b) (i) through (ix) without the consent of each person required to consent to such change under such clause (it being agreed, however, that any increase in the Tranche B Loans or establishment of any Class of Term Loans will not, of itself, be deemed to effect any of the changes described in Section 11.02(b)(vi) - (viii) and (1)), (ii) amend Article V, VI or VIII to establish any affirmative or negative covenant, Event of Default or remedy that by its terms benefits one or more Classes, but not all Classes, of Loans or Borrowings without the redemption, repurchase, retirement, defeasance prior written consent of Lenders holding a majority in interest of the Loans and Commitments of each Class not so benefited (it being agreed that no provision requiring Borrower to prepay Term Loans of one or more Classes pursuant to Sections 2.10(c) through (h) shall be deemed to violate this clause) or (iii) change any other acquisition provision of this Agreement or any other Loan Document that creates rights in favor of Lenders holding Loans or Commitments of any subordinated Indebtedness existing Class, other than as necessary or advisable in the judgment of the Company Administrative Agent to cause such provision to take into account, or to make the benefits of such provision available to, Lenders holding new Tranche B Loans or Term Loans of such new Class. The Lenders existing on a record date to be no more than 15 Business Days or fewer than 5 Business Days before the date of funding any Guarantor new loans to be made hereunder shall have the first right, but no obligation, to commit to fund all or a portion of any Equity Interests such new Tranche B Loans or new Class of Term Loans on a pro rata basis in accordance with their existing Tranche B Loans. Notice of such right shall be given to each such Lender within two Business Days of the Company in exchange forrecord date, or out and such Lenders must exercise such right within ten Business Days of receipt of such notice. If such Lenders do not commit to provide the full amount of the net cash proceeds new Tranche B Loans or the new Class of Term Loans, the substantially concurrent sale, issuance of or contribution for, (Borrower may offer the uncommitted amount to other than financial institutions reasonably acceptable to a Restricted Subsidiary of the Company), Equity Interests of the Company (other than Disqualified Stock)Administrative Agent; provided that the amount minimum loan of each such new financial institution equals or exceeds $1.0 million. The Loans and Borrowings (of any Class) established pursuant to this paragraph (e) shall constitute Loans and Borrowings under, and shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the Guarantees and security interests created by the Security Documents. The Loan Parties shall take any actions reasonably required by the Administrative Agent to ensure and/or demonstrate that the Lien and security interests granted by the Security Documents continue to be perfected under the UCC or otherwise after the establishment of any such net cash proceeds that are utilized for any such payment, redemption, repurchase, retirement, defeasance, other acquisition new Tranche B Loans or dividend or distribution shall be excluded from clause (c) new Class of the preceding paragraph; (iii) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the defeasance, redemption, repurchase or other acquisition of subordinated Indebtedness with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness; (iv) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the payment of any dividend or distribution by a Restricted Subsidiary of the Company to the holders of its common Equity Interests on a pro rata basis; (v) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company held by any present, former or future employee, director or Consultant of the Company's (or any of its Restricted Subsidiaries or any parent of the Company) pursuant to any management equity subscription agreement or stock option agreement in effect as of the date of this Indenture or any other similar agreement; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall not exceed $2.0 million in any twelve-month period (with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $4.0 million in any calendar year); provided that such amount in any calendar year may be increased by an amount not to exceed (A) the cash proceeds from the sale of Equity Interests of the Company, any parent of the Company or any of its Restricted Subsidiaries to present, former or future directors, Consultants or employees of the Company, its Restricted Subsidiaries or any parent of the Company that occurred since February 20, 2001 (to the extent the cash proceeds from the sale of such Equity Interest have not otherwise been included in clause (c) of the immediately preceding paragraph), plus (B) the cash proceeds of key man life insurance policies received by the Company, its Restricted Subsidiaries or any parent of the Company since February 20, 2001; and provided that cancellation of Indebtedness owing to the Company from present, former or future directors, Consultants, or employees of the Company, any of its Restricted Subsidiaries or any parent of the Company the proceeds of which were used solely to purchase Equity Interests of the Company will not be deemed to constitute a Restricted Payment so long as the value of such Equity Interests issued did not increase clause (c) of the preceding paragraph; (vi) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, Restricted Investments made after the date of this Indenture having an aggregate Fair Market Value, taken together with all other Investments made pursuant to this clause (vi) and, without duplication, Investments made pursuant to the this clause (vi) and, without duplication, Investments made pursuant to the comparable clause of the indentures relating to the Existing Notes that are at that time outstanding (without giving effect to any write-up, write-off or write-down), not to exceed 5% of the Company's Consolidated Tangible Assets as of the end of the fiscal quarter most recently completed (with Fair Market Value of each Investment being measured at the time made and without giving effect to subsequent changes in value); (vii) repurchases of Equity Interests deemed to occur upon exercise of stock options if such Equity Interests represent a portion of the exercise price of such options; (viii) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the payment of dividends on the Company's Capital Stock of up to 6% per annum of the net proceeds received by the Company in its March, 2002 initial public offering; (ix) Investments in Unrestricted Subsidiaries that are made with Excluded Contributions; (x) non-cash Investments in Unrestricted Subsidiaries in the form of administrative, financial, accounting, management, or other similar services (together with a non-cash allocation of corporate overhead), in each case in the ordinary course of business; (xi) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the payment of dividends on Disqualified Stock which is issued in accordance with Section 4.09 hereof; and (xii) transactions contemplated by the offering memorandum dated September 24, 2003 in connection with the issuance of the Notes under the caption "Use of Proceeds". The amount of all Restricted Payments (other than cash) shall be the Fair Market Value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued to or by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment; provided that, notwithstanding the other provisions of this Indenture, with respect to this covenant, an MAI appraiser, accounting firm or valuation firm with experience in such valuation and not affiliated with the Company shall be required if the fair market value of such Restricted Payment or Restricted Payments for any series of transactions exceeds $2.0 million. At least quarterly, the Company shall deliver to the Trustee an Officers' Certificate stating that all Restricted Payments during such quarter were permitted and setting forth the basis upon which the calculations required by this Section 4.07 were computed, together with a copy of any fairness opinion or appraisal required by this Indenture. If a Guarantee constituted a Restricted Investment at the time made, then the payment under such Guarantee shall not constitute an additional Restricted Investment. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default or an Event of Default. In the event of any such designation, all outstanding Investments owned by the Company and its Restricted Subsidiaries in the Subsidiary so designated shall be deemed to be an Investment made as of the time of such designation and shall reduce the amount available for Restricted Payments under the first paragraph of this Section 4.07 or Permitted Investments, as applicable. All such outstanding Investments shall be deemed to constitute Restricted Investments in an amount equal to the fair market value of such Investments at the time of such designation. Such designation shall only be permitted if such Restricted Payment would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if such redesignation would not cause a Default or an Event of Default. Any such designation by the Board of Directors shall be evidenced to the Trustee by filing with the Trustee a certified copy of the board resolution giving effect to such designation and an Officers' Certificate certifying that such designation complied with the foregoing conditions and was permitted by this Section 4.07. If, at any time, any Unrestricted Subsidiary would fail to meet the definition of an Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary of the Company as of such date (and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09 hereof, the Company shall be in default of Section 4.09 hereof). The Board of Directors of the Company may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided that such designation shall be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of the Company of any outstanding Indebtedness of such Unrestricted Subsidiary and such designation shall only be permitted if (a) such Indebtedness is permitted under Section 4.09 hereof, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period, and (b) no Default or Event of Default would be in existence following such designationTerm Loans.
Appears in 1 contract
million. The preceding foregoing provisions shall will not prohibit: prohibit (i) the payment of any dividend within 60 days after the date of declaration thereof, if at said date of declaration, declaration such payment would have complied with the provisions of this the Indenture; (ii) the redemption, repurchase, retirement, defeasance or other acquisition of any subordinated Indebtedness of the Company or any Guarantor or of any Equity Interests of the Company in exchange for, or out of the net cash proceeds of the substantially concurrent sale, issuance of or contribution for, sale (other than to a Restricted Subsidiary of the Company)) of, other Equity Interests of the Company (other than any Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such payment, redemption, repurchase, retirement, defeasance, defeasance or other acquisition or dividend or distribution shall be excluded from clause (c) (2) of the preceding paragraph; (iii) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the defeasance, redemption, repurchase repurchase, retirement, defeasance or other acquisition of subordinated Indebtedness with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness; (iv) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the payment of any dividend or distribution by a Restricted Subsidiary of the Company to the holders of its common Equity Interests on a pro rata basis; (v) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company held by any present, former or future employee, director or Consultant member of the Company's (or any of its Restricted Subsidiaries Subsidiaries') management or board of directors or any parent of the Company) pursuant to any management equity subscription agreement or employee stock option agreement in effect as of the date of this Indenture or any other similar agreementownership plan; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall not exceed $2.0 1.0 million in any twelve-month period period; (with unused amounts v) Tax Distributions in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) respect of $4.0 million in any calendar year); provided that such amount in any calendar year may be increased by an amount not to exceed (A) the cash proceeds from the sale of Equity Interests of the Company, any parent of periods when the Company or any of its Restricted Subsidiaries to presentis an S Corporation, former or future directors, Consultants or employees of the Company, its Restricted Subsidiaries or any parent of the Company that occurred since February 20, 2001 (to the extent the cash proceeds from the sale of such Equity Interest have not otherwise been included in clause (c) of the immediately preceding paragraph), plus (B) the cash proceeds of key man life insurance policies received by the Company, its Restricted Subsidiaries or any parent of the Company since February 20, 2001; and provided that cancellation of Indebtedness owing to the Company from present, former or future directors, Consultants, or employees of the Company, any of its Restricted Subsidiaries or any parent of the Company the proceeds of which were used solely to purchase Equity Interests of the Company will not be deemed to constitute a Restricted Payment so long as the value of such Equity Interests issued did not increase clause (c) of the preceding paragraph; (vi) so long as Committed Restricted Investments; (vii) Restricted Investments consisting of payments pursuant to guaranties (not prohibited by the provisions of this Indenture) of Indebtedness; (viii) Restricted Investments consisting of payments pursuant to reimbursement obligations in respect of letters of credit (not prohibited by the provisions of the Indenture) securing Indebtedness or other obligations; and (ix) Restricted Investments consisting of payments pursuant to guaranties (not prohibited by the provisions of the Indenture) of obligations (other than Indebtedness), provided, however, that at the time of, and after giving effect to, any Restricted Payment permitted under clauses (i) through (iv) no Default or Event of Default has shall have occurred and is continuing or would be caused thereby, Restricted Investments made after the date of this Indenture having an aggregate Fair Market Value, taken together with all other Investments made pursuant to this clause (vi) and, without duplication, Investments made pursuant to the this clause (vi) and, without duplication, Investments made pursuant to the comparable clause of the indentures relating to the Existing Notes that are at that time outstanding (without giving effect to any write-up, write-off or write-down), not to exceed 5% of the Company's Consolidated Tangible Assets as of the end of the fiscal quarter most recently completed (with Fair Market Value of each Investment being measured at the time made and without giving effect to subsequent changes in value); (vii) repurchases of Equity Interests deemed to occur upon exercise of stock options if such Equity Interests represent a portion of the exercise price of such options; (viii) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the payment of dividends on the Company's Capital Stock of up to 6% per annum of the net proceeds received by the Company in its March, 2002 initial public offering; (ix) Investments in Unrestricted Subsidiaries that are made with Excluded Contributions; (x) non-cash Investments in Unrestricted Subsidiaries in the form of administrative, financial, accounting, management, or other similar services (together with a non-cash allocation of corporate overhead), in each case in the ordinary course of business; (xi) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the payment of dividends on Disqualified Stock which is issued in accordance with Section 4.09 hereof; and (xii) transactions contemplated by the offering memorandum dated September 24, 2003 in connection with the issuance of the Notes under the caption "Use of Proceeds"continuing. The amount of all Restricted Payments (other than cash) shall be the Fair Market Value fair market value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued to or by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment; provided that, notwithstanding the other provisions of this Indenture, with respect to this covenant, an MAI appraiser, accounting firm or valuation firm with experience in such valuation and not affiliated with the Company shall be required if the . The fair market value of such any non-cash Restricted Payment shall be determined in good faith by the Board of Directors whose resolution with respect thereto shall be delivered to the Trustee. Notwithstanding the two preceding sentences, the amount of any Restricted Investment that is a guarantee of (or the furnishing of a letter or credit as security for) Indebtedness or other obligations shall be as determined under the definition of "Investments." Not later than the date of making any Restricted Payments for any series of transactions exceeds $2.0 million. At least quarterlyPayment, the Company shall deliver to the Trustee an Officers' Certificate stating that all such Restricted Payments during such quarter were permitted and setting forth the basis upon which the calculations required by this Section 4.07 4.10 were computed, together with a copy of any fairness opinion or appraisal required by this Indenture. If a Guarantee constituted a Restricted Investment at the time made, then the payment under such Guarantee shall not constitute an additional Restricted Investment. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default or an Event of Default. In the event For purposes of any making such designationdetermination, all outstanding Investments owned by the Company and its Restricted Subsidiaries (except to the extent repaid in cash) in the Subsidiary so designated shall will be deemed to be an Investment made as of Restricted Payments at the time of such designation and shall will reduce the amount available for Restricted Payments under the first paragraph of this Section 4.07 or Permitted Investments, as applicable4.10. All such outstanding Investments shall in the Subsidiary so designated will be deemed to constitute Restricted Investments in an amount equal to the sum of (a) the greater of (i) the net book value of such Investments at the time of such designation and (ii) the fair market value of such Investments at the time of such designationdesignation and (b) the amount of such Investments constituting a guarantee of (or the furnishing of a letter of credit as security for) Indebtedness or other obligations. Such designation shall will only be permitted if such Restricted Payment would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if such redesignation would not cause a Default or an Event of Default. Any such designation by the Board of Directors shall be evidenced to the Trustee by filing with the Trustee a certified copy of the board resolution Board Resolution giving effect to such designation and an Officers' Certificate certifying that such designation complied with the foregoing conditions and was permitted by this Section 4.07conditions. If, at any time, any Unrestricted Subsidiary would fail to meet the definition of an Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary of the Company as of such date (and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09 hereof, the Company shall be in default of Section 4.09 hereofsuch Section). The Board of Directors of the Company may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided that such designation shall be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of the Company of any outstanding Indebtedness of such Unrestricted Subsidiary and such designation shall only be permitted if (ai) such Indebtedness is permitted under Section 4.09 hereof, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period, and (bii) no Default or Event of Default would be in existence following such designation.
Appears in 1 contract
Sources: Indenture (Sbarro Inc)
million. The preceding foregoing provisions shall not prohibit: prohibit (i) the payment of any dividend within 60 days after the date of declaration thereof, if at said date of declaration, declaration such payment would have complied with the provisions of this Indenture; : (ii) the redemption, repurchase, retirement, defeasance or other acquisition of any pari passu or subordinated Indebtedness of the Company or any Guarantor or of any Equity Interests of the Company in exchange for, or out of the net cash proceeds of the substantially concurrent sale, issuance of or contribution for, sale (other than to a Restricted Subsidiary of the Company)) of, other Equity Interests of the Company (other than any Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such payment, redemption, repurchase, retirement, defeasance, defeasance or other acquisition or dividend or distribution shall be excluded from clause (c) (ii) of the preceding paragraph; (iii) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the defeasance, redemption, repurchase or other acquisition of pari passu or subordinated Indebtedness with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness; (iv) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the payment of any dividend or distribution by a Restricted Subsidiary of the Company to the holders of its common Equity Interests on a pro rata basis; (v) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company held by any present, former or future employee, director or Consultant member of the Company's (or any of its Restricted Subsidiaries or any parent of the CompanySubsidiaries') management pursuant to any management equity subscription agreement or stock option agreement in effect as of the date of this Indenture or any other similar agreementIndenture; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall not exceed $2.0 5.0 million in any twelve-month period (with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $4.0 million in any calendar year); provided that such amount in any calendar year may be increased by an amount not to exceed (A) aggregate since the cash proceeds from the sale of Equity Interests of the Company, any parent of the Company or any of its Restricted Subsidiaries to present, former or future directors, Consultants or employees of the Company, its Restricted Subsidiaries or any parent of the Company that occurred since February 20, 2001 (to the extent the cash proceeds from the sale of such Equity Interest have not otherwise been included in clause (c) of the immediately preceding paragraph), plus (B) the cash proceeds of key man life insurance policies received by the Company, its Restricted Subsidiaries or any parent of the Company since February 20, 2001; and provided that cancellation of Indebtedness owing to the Company from present, former or future directors, Consultants, or employees of the Company, any of its Restricted Subsidiaries or any parent of the Company the proceeds of which were used solely to purchase Equity Interests of the Company will not be deemed to constitute a Restricted Payment so long as the value of such Equity Interests issued did not increase clause (c) of the preceding paragraphIssue Date; (vi) so long as no Default or Event the repurchase of Default has occurred and is continuing or would be caused thereby, Restricted Investments made after the date of this Indenture having an aggregate Fair Market Value, taken together with all other Investments made Harvard Warrant required pursuant to this clause agreements in effect on the Issue Date (vias in effect on such date), provided that the consideration paid by the Company shall consist solely of Harvard Notes; (vii) and, without duplication, Investments made the purchase of common stock held by management of the Company required pursuant to the this clause Shareholders' Agreement, provided that the consideration paid by the Company shall consist solely of Management Notes; and (viviii) and, without duplication, Investments made pursuant to the comparable clause payment on or after the Issue Date of the indentures relating to the Existing Notes that are at that time outstanding (without giving effect to any write-up, write-off or write-down), not to exceed 5% dividends in respect of the Company's Consolidated Tangible Assets as of the end of the fiscal quarter most recently completed (with Fair Market Value of each Investment being measured at the time made and without giving effect to subsequent changes common stock in value); (vii) repurchases of Equity Interests deemed to occur upon exercise of stock options if such Equity Interests represent a portion of the exercise price of such options; (viii) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the payment of dividends on the Company's Capital Stock of up to 6% per annum of the net proceeds received by the Company in its March, 2002 initial public offering; (ix) Investments in Unrestricted Subsidiaries that are made with Excluded Contributions; (x) non-cash Investments in Unrestricted Subsidiaries in the form of administrative, financial, accounting, management, or other similar services (together with a non-cash allocation of corporate overhead), in each case in the ordinary course of business; (xi) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the payment of dividends on Disqualified Stock which is issued in accordance with Section 4.09 hereof; and (xii) transactions contemplated by the offering memorandum dated September 24, 2003 in connection with the issuance of the Notes under the caption "Use of Proceeds". The an aggregate amount of all Restricted Payments (other than cash) shall be the Fair Market Value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued to or by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment; provided that, notwithstanding the other provisions of this Indenture, with respect to this covenant, an MAI appraiser, accounting firm or valuation firm with experience in such valuation and not affiliated with the Company shall be required if the fair market value of such Restricted Payment or Restricted Payments for any series of transactions exceeds exceeding $2.0 6.0 million. At least quarterly, the Company shall deliver to the Trustee an Officers' Certificate stating that all Restricted Payments during such quarter were permitted and setting forth the basis upon which the calculations required by this Section 4.07 were computed, together with a copy of any fairness opinion or appraisal required by this Indenture. If a Guarantee constituted a Restricted Investment at the time made, then the payment under such Guarantee shall not constitute an additional Restricted Investment. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default or an Event of Default. In the event For purposes of any making such designationdetermination, all outstanding Investments owned by the Company and its Restricted Subsidiaries (except to the extent repaid in cash) in the Subsidiary so designated shall be deemed to be an Investment made as of Restricted Payments at the time of such designation and shall reduce the amount available for Restricted Payments under the first paragraph of this Section 4.07 or Permitted Investments, as applicablecovenant. All such outstanding Investments shall be deemed to constitute Restricted Investments in an amount equal to the fair market value of such Investments at the time of such designation. Such designation shall only be permitted if such Restricted Payment would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. The Board amount of Directors may redesignate any Unrestricted Subsidiary all Restricted Payments (other than cash) shall be the fair market value on the date of the Restricted Payment of the asset(s) or securities proposed to be a transferred or issued by the Company or such Restricted Subsidiary if such redesignation would not cause a Default or an Event Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of Default. Any such designation any non-cash Restricted Payment shall be determined by the Board of Directors whose resolution with respect thereto shall be evidenced delivered to the Trustee, such determination to be based upon an opinion or appraisal issued by an accounting, appraisal or investment banking firm of national standing if such fair market value exceeds $1.0 million. Not later than the date of making any Restricted Payment (except with respect to a payment on a Management Note, for which 15 days notice shall be required), the Company shall deliver to the Trustee by filing with the Trustee a certified copy of the board resolution giving effect to such designation and an Officers' Certificate certifying stating that such designation complied with Restricted Payment is permitted and setting forth the foregoing conditions and was permitted basis upon which the calculations required by this Section 4.07. If4.07 were computed, at any time, any Unrestricted Subsidiary would fail to meet the definition of an Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary shall be deemed to be incurred by together with a Restricted Subsidiary of the Company as of such date (and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09 hereof, the Company shall be in default of Section 4.09 hereof). The Board of Directors of the Company may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided that such designation shall be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of the Company copy of any outstanding Indebtedness of such Unrestricted Subsidiary and such designation shall only be permitted if (a) such Indebtedness is permitted under Section 4.09 hereof, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period, and (b) no Default fairness opinion or Event of Default would be in existence following such designationappraisal required by this Indenture.
Appears in 1 contract
Sources: Indenture (Iae Inc)
million. The preceding foregoing provisions shall will not prohibit: prohibit (ia) the payment of any dividend within 60 days after the date of declaration thereof, if at said date of declaration, declaration such payment would have complied with the provisions of this Indenture, the Series A/B Indenture and the Series C/D Indenture; (iib) the redemption, repurchase, retirement, defeasance or other acquisition of any subordinated Indebtedness of the Company or any Guarantor or of any Equity Interests of the Company in exchange for, or out of the net cash proceeds of the substantially concurrent sale, issuance of or contribution for, sale (other than to a Restricted Subsidiary of the Company)) of, other Equity Interests of the Company (other than any Disqualified Stock); , provided that the amount of any such net cash proceeds that are utilized for any such payment, redemption, repurchase, retirement, defeasance, defeasance or other acquisition or dividend or distribution shall be excluded from clause (ciii)(B) of the preceding paragraph; (iiic) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the defeasance, redemption, repurchase repurchase, retirement or other acquisition of subordinated Indebtedness with the net cash proceeds from an incurrence of of, or in exchange for, Permitted Refinancing Indebtedness; (ivd) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the payment of any dividend or distribution by a Restricted Subsidiary of the Company to the holders of its common Equity Interests on a pro rata basisto the Company or any Wholly Owned Restricted Subsidiary; (ve) so long as no Default or Event of Default has shall have occurred and is continuing or would be caused therebycontinuing, the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company held by any present, former or future employee, director or Consultant employee of the Company's (or any of its Restricted Subsidiaries or any parent of the Company) pursuant to any management equity subscription agreement or stock option agreement in effect as of the date of this Indenture or any other similar agreement; Subsidiaries, provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall not exceed $2.0 million in any twelve-month period (with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $4.0 million 500,000 in any calendar year); provided that such amount in any calendar year may be increased by an amount not to exceed and (Af) the cash proceeds from the sale acquisition of Equity Interests of the Company, any parent of Company in connection with the Company or any of its Restricted Subsidiaries to present, former or future directors, Consultants or employees of the Company, its Restricted Subsidiaries or any parent of the Company that occurred since February 20, 2001 (to the extent the cash proceeds from the sale of such Equity Interest have not otherwise been included in clause (c) of the immediately preceding paragraph), plus (B) the cash proceeds of key man life insurance policies received by the Company, its Restricted Subsidiaries or any parent of the Company since February 20, 2001; and provided that cancellation of Indebtedness owing to the Company from present, former or future directors, Consultants, or employees of the Company, any of its Restricted Subsidiaries or any parent of the Company the proceeds of which were used solely to purchase Equity Interests of the Company will not be deemed to constitute a Restricted Payment so long as the value of such Equity Interests issued did not increase clause (c) of the preceding paragraph; (vi) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, Restricted Investments made after the date of this Indenture having an aggregate Fair Market Value, taken together with all other Investments made pursuant to this clause (vi) and, without duplication, Investments made pursuant to the this clause (vi) and, without duplication, Investments made pursuant to the comparable clause of the indentures relating to the Existing Notes that are at that time outstanding (without giving effect to any write-up, write-off or write-down), not to exceed 5% of the Company's Consolidated Tangible Assets as of the end of the fiscal quarter most recently completed (with Fair Market Value of each Investment being measured at the time made and without giving effect to subsequent changes in value); (vii) repurchases of Equity Interests deemed to occur upon exercise of stock options if such Equity Interests represent a portion or stock appreciation rights by way of the cashless exercise price of such options; (viii) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the payment of dividends on the Company's Capital Stock of up to 6% per annum of the net proceeds received by the Company in its March, 2002 initial public offering; (ix) Investments in Unrestricted Subsidiaries that are made with Excluded Contributions; (x) non-cash Investments in Unrestricted Subsidiaries in the form of administrative, financial, accounting, management, or other similar services (together with a non-cash allocation of corporate overhead), in each case in the ordinary course of business; (xi) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the payment of dividends on Disqualified Stock which is issued in accordance with Section 4.09 hereof; and (xii) transactions contemplated by the offering memorandum dated September 24, 2003 in connection with the issuance satisfaction of the Notes under the caption "Use of Proceeds". The amount of all Restricted Payments (other than cash) shall be the Fair Market Value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued to or by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment; provided that, notwithstanding the other provisions of this Indenture, with respect to this covenant, an MAI appraiser, accounting firm or valuation firm with experience in such valuation and not affiliated with the Company shall be required if the fair market value of such Restricted Payment or Restricted Payments for any series of transactions exceeds $2.0 million. At least quarterly, the Company shall deliver to the Trustee an Officers' Certificate stating that all Restricted Payments during such quarter were permitted and setting forth the basis upon which the calculations required by this Section 4.07 were computed, together with a copy of any fairness opinion or appraisal required by this Indenture. If a Guarantee constituted a Restricted Investment at the time made, then the payment under such Guarantee shall not constitute an additional Restricted Investmentwithholding tax obligations. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default or an Event of Default. In the event For purposes of any making such designationdetermination, all outstanding Investments owned by the Company and its Restricted Subsidiaries (except to the extent repaid in cash) in the Subsidiary so designated shall be deemed to be Restricted Payments at the time of such designation. All such outstanding Investments will be deemed to constitute Investments in an Investment made as amount equal to the greater of (a) the net book value of such Investments at the time of such designation and shall reduce the amount available for Restricted Payments under the first paragraph of this Section 4.07 or Permitted Investments, as applicable. All such outstanding Investments shall be deemed to constitute Restricted Investments in an amount equal to (b) the fair market value of such Investments at the time of such designation. Such designation shall only be permitted if such Restricted Payment would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if such redesignation would not cause a Default or an Event of Default. Any such designation by the Board of Directors shall be evidenced to the Trustee by filing with the Trustee a certified copy of the board resolution giving effect to such designation and an Officers' Certificate certifying that such designation complied with the foregoing conditions and was permitted by this Section 4.07. If, at any time, any Unrestricted Subsidiary would fail to meet the definition of an Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary of the Company as of such date (and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09 hereof, the Company shall be in default of Section 4.09 hereof). The Board of Directors of the Company may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary; , provided that such designation shall be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of the Company of any outstanding Indebtedness of such Unrestricted Subsidiary and such designation shall only be permitted if (a) such Indebtedness is permitted under Section 4.09 hereof, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period, and (b) no Default or Event of Default would be in existence following such designation. Any designation of a Subsidiary as an Unrestricted Subsidiary shall be evidenced to the Trustee by filing with the Trustee a certified copy of a resolution of the Board of Directors giving effect to such designation and an Officers' Certificate certifying that such designation complied with the terms of the definition of Unrestricted Subsidiary set forth in this Indenture and with this Section 4.07. The amount of all Restricted Payments (other than cash) shall be the fair market value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall be determined in the manner contemplated by the definition of the term "fair market value," and the results of such determination shall be evidenced by an Officers' Certificate delivered to the Trustee. Not later than the date of making any Restricted Payment, the Company shall deliver to the Trustee an Officers' Certificate stating that such Restricted Payment is permitted and setting forth the basis upon which the calculations required by this Section 4.07 were computed.
Appears in 1 contract
million. The preceding foregoing provisions shall will not prohibit: prohibit (iA) the payment of any dividend within 60 days after the date of declaration thereof, if at said date of declaration, declaration such payment would have complied with the provisions of this Indenture; (iiB) the redemption, repurchase, retirement, defeasance or other acquisition of any subordinated Indebtedness of the Company or any Guarantor or of any Equity Interests of the Company in exchange for, or out of the net cash proceeds of the substantially concurrent sale, issuance of or contribution for, (other than to a Restricted Subsidiary of the Company), Equity Interests of the Company (other than Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such payment, redemption, repurchase, retirement, defeasance, other acquisition or dividend or distribution shall be excluded from clause (c) of the preceding paragraph; (iii) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the defeasance, redemption, repurchase or other acquisition of subordinated Indebtedness with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness; (iv) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the payment of any dividend or distribution by a Restricted Subsidiary of the Company to the holders of its common Equity Interests on a pro rata basis; (v) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the repurchase, redemption retirement or other acquisition or retirement for value of any Equity Interests of the Company in exchange for, or any with the net cash proceeds of, the substantially concurrent sale (other than to a Restricted Subsidiary of the Company held by any present, former or future employee, director or Consultant Company) of other Equity Interests of the Company's Company (other than any Disqualified Stock); (C) the defeasance, redemption, repurchase, retirement or any other acquisition or retirement for value of its Indebtedness that is subordinated or pari passu in right of payment to the Notes in exchange for, or with the net cash proceeds of, a substantially concurrent issuance and sale (other than to a Restricted Subsidiaries or any parent Subsidiary of the Company) pursuant to any management equity subscription agreement or stock option agreement in effect as of the date of this Indenture or any other similar agreement; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall not exceed $2.0 million in any twelve-month period (with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $4.0 million in any calendar year); provided that such amount in any calendar year may be increased by an amount not to exceed (A) the cash proceeds from the sale of Equity Interests of the CompanyCompany (other than Disqualified Stock); (D) the defeasance, any parent redemption, repurchase, retirement or other acquisition or retirement for value of Indebtedness that is subordinated or pari passu in right of payment to the Notes in exchange for, or with the net cash proceeds of, a substantially concurrent issue and sale (other than to the Company or any of its Restricted Subsidiaries Subsidiaries) of Refinancing Indebtedness; (E) the repurchase of any Indebtedness subordinated or pari passu in right of payment to present, former or future directors, Consultants or employees the Notes at a purchase price not greater than 101% of the Companyprincipal amount of such Indebtedness in the event of a Change of Control in accordance with provisions similar to the covenant set forth in Section 4.14 hereof, its Restricted Subsidiaries provided that prior to or any parent contemporaneously with such repurchase the Company has made the Change of Control Offer as provided in such covenant with respect to the Notes and has repurchased all Notes validly tendered for payment in connection with such Change of Control Offer; and (F) additional payments to current or former employees or directors of the Company for repurchases of stock, stock options or other equity interests, provided that occurred since February 20, 2001 (to the extent the cash proceeds from the sale aggregate amount of all such Equity Interest have not otherwise been included in payments under this clause (cF) does not exceed $500,000 in any year and $2.0 million in the aggregate. The Restricted Payments described in clauses (B), (C), (E) and (F) of the immediately preceding paragraph), plus (B) paragraph will be Restricted Payments that will be permitted to be taken in accordance with such paragraph but will reduce the cash proceeds of key man life insurance policies received by the Company, its amount that would otherwise be available for Restricted Subsidiaries or any parent of the Company since February 20, 2001; and provided that cancellation of Indebtedness owing to the Company from present, former or future directors, Consultants, or employees of the Company, any of its Restricted Subsidiaries or any parent of the Company the proceeds of which were used solely to purchase Equity Interests of the Company will not be deemed to constitute a Restricted Payment so long as the value of such Equity Interests issued did not increase Payments under clause (ciii) of the preceding paragraph; (vi) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, Restricted Investments made after the date first paragraph of this Indenture having an aggregate Fair Market Valuesection, taken together with all other Investments made pursuant to this clause and the Restricted Payments described in clauses (viA) and, without duplication, Investments made pursuant to the this clause and (viD) and, without duplication, Investments made pursuant to the comparable clause of the indentures relating immediately preceding paragraph will be Restricted Payments that will be permitted to the Existing Notes that are at that time outstanding (without giving effect to any write-up, write-off or write-down), not to exceed 5% of the Company's Consolidated Tangible Assets as of the end of the fiscal quarter most recently completed (with Fair Market Value of each Investment being measured at the time made and without giving effect to subsequent changes in value); (vii) repurchases of Equity Interests deemed to occur upon exercise of stock options if such Equity Interests represent a portion of the exercise price of such options; (viii) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the payment of dividends on the Company's Capital Stock of up to 6% per annum of the net proceeds received by the Company in its March, 2002 initial public offering; (ix) Investments in Unrestricted Subsidiaries that are made with Excluded Contributions; (x) non-cash Investments in Unrestricted Subsidiaries in the form of administrative, financial, accounting, management, or other similar services (together with a non-cash allocation of corporate overhead), in each case in the ordinary course of business; (xi) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the payment of dividends on Disqualified Stock which is issued taken in accordance with Section 4.09 hereof; such paragraph and will not reduce the amount that would otherwise be available for Restricted Payments under clause (xiiiii) transactions contemplated by the offering memorandum dated September 24, 2003 in connection with the issuance of the Notes under first paragraph of this section. If an Investment results in the caption "Use making of Proceeds". The a Restricted Payment, the aggregate amount of all Restricted Payments (other than cash) shall deemed to have been made as calculated under the foregoing provision 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 to or reduced by the Company amount of any net reduction in such Investment (resulting from the payment of interest or such Restricted Subsidiarydividends, as the case may beloan repayment, pursuant transfer of assets or otherwise) to the Restricted Paymentextent such net reduction is not included in the Company's EBITDA; provided thatprovided, notwithstanding however, that the other provisions total amount by which the aggregate amount of this Indenture, with respect to this covenant, an MAI appraiser, accounting firm or valuation firm with experience in such valuation and not affiliated with the Company shall be required if the fair market value of such Restricted Payment or Restricted Payments for any series of transactions exceeds $2.0 million. At least quarterly, the Company shall deliver to the Trustee an Officers' Certificate stating that all Restricted Payments during such quarter were permitted and setting forth may be reduced may not exceed the basis upon which lesser of (a) the calculations required by this Section 4.07 were computed, together with a copy of any fairness opinion or appraisal required by this Indenture. If a Guarantee constituted a Restricted Investment at the time made, then the payment under such Guarantee shall not constitute an additional Restricted Investment. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default or an Event of Default. In the event of any such designation, all outstanding Investments owned cash proceeds received by the Company and its Restricted Subsidiaries in connection with such net reduction and (b) the initial amount of such Investment. If the aggregate amount of all Restricted Payments calculated under the foregoing provision includes an Investment in an Unrestricted Subsidiary or other Person that thereafter becomes a Restricted Subsidiary, such Investment will no longer be counted as a Restricted Payment for purposes of calculating the aggregate amount of Restricted Payments. For the purpose of making any calculations under this Indenture, (a) an Investment will include the fair market value of the net assets of any Restricted Subsidiary at the time that such Restricted Subsidiary is designated an Unrestricted Subsidiary and will exclude the fair market value of the net assets of any Unrestricted Subsidiary that is designated as a Restricted Subsidiary, (b) any property transferred to or from an Unrestricted Subsidiary will be valued at fair market value at the time of such transfer, provided that, in each case, the fair market value of an asset or property is as determined by the Board of Directors in good faith, and (c) subject to the foregoing, the amount of any Restricted Payment, if other than cash, will be determined by the Board of Directors, whose good faith determination will be conclusive. The Board of Directors may designate a Restricted Subsidiary to be an Unrestricted Subsidiary in compliance with Section 4.17 hereof. Upon such designation, all outstanding Investments by the Company and its Restricted Subsidiaries (except to the extent repaid in cash) in the Subsidiary so designated shall will be deemed to be an Investment Restricted Payments made as of at the time of such designation and shall will reduce the amount available for Restricted Payments under the first paragraph of this Section 4.07 or Permitted Investments, as applicable. All such outstanding Investments shall be deemed to constitute Restricted Investments in an amount equal to the fair market value of such Investments at the time of such designation4.07. Such designation shall will only be permitted if such Restricted Payment would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if such redesignation would not cause a Default or an Event of Default. Any such designation by the Board of Directors shall be evidenced to the Trustee by filing with the Trustee a certified copy of the board resolution giving effect to such designation and an Officers' Certificate certifying that such designation complied with the foregoing conditions and was permitted by this Section 4.07. If, at any time, any Unrestricted Subsidiary would fail to meet the definition of an Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary of the Company as of such date (and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09 hereof, the Company shall be in default of Section 4.09 hereof). The Board of Directors of the Company may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided that such designation shall be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of the Company of any outstanding Indebtedness of such Unrestricted Subsidiary and such designation shall only be permitted if (a) such Indebtedness is permitted under Section 4.09 hereof, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period, and (b) no Default or Event of Default would be in existence following such designation.
Appears in 1 contract
Sources: Indenture (Iron Mountain Inc /De)
million. The preceding foregoing provisions shall not prohibit: prohibit (i1) the payment of any dividend within 60 days after the date of declaration thereof, if at said date of declaration, declaration such payment would have complied with the provisions of this Indenture; (ii2) the redemption, repurchase, retirement, defeasance retirement or other acquisition of any Equity Interests or subordinated Indebtedness of the Company or any Guarantor or of any Equity Interests of the Company in exchange for, or out of the net cash proceeds of of, the substantially concurrent sale, issuance of or contribution for, sale (other than to a Restricted Subsidiary of the Company), ) of other Equity Interests of the Company (other than any Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such payment, redemption, repurchase, retirement, defeasance, retirement or other acquisition or dividend or distribution shall be excluded from clause (cC)(ii) of the preceding paragraph; (iii3) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the defeasance, redemption, redemption or repurchase or other acquisition of subordinated Indebtedness with the net cash proceeds from an incurrence of a substantially concurrent issuance of Permitted Refinancing IndebtednessDebt in accordance with the provisions of Section 4.09 hereof; (iv4) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the payment of any dividend or distribution by a Restricted Subsidiary of the Company to of advances under the holders of its common Equity Interests on a pro rata basis; (v) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company held by any present, former or future employee, director or Consultant of the Company's (or any of its Restricted Subsidiaries or any parent of the Company) pursuant to any management equity subscription agreement or stock option agreement Split Dollar Agreement in effect as of the date of this Indenture or any other similar agreement; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall not exceed $2.0 million in any twelve-month period (with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $4.0 million in any calendar year); provided that such amount in any calendar year may be increased by an amount not to exceed $250,000 in any four-quarter period; (A5) the cash proceeds repurchase or redemption from the sale of Equity Interests of the Company, any parent employees of the Company or any and its Subsidiaries (other than the Principal) of its Restricted Subsidiaries to present, former or future directors, Consultants or employees of the Company, its Restricted Subsidiaries or any parent Capital Stock of the Company that occurred in an amount not to exceed an aggregate of $5.0 million since February 20, 2001 (to the extent the cash proceeds from the sale of such Equity Interest have not otherwise been included in clause (c) of the immediately preceding paragraph), plus (B) the cash proceeds of key man life insurance policies received by the Company, its Restricted Subsidiaries or any parent of the Company since February 20, 2001; and provided that cancellation of Indebtedness owing to the Company from present, former or future directors, Consultants, or employees of the Company, any of its Restricted Subsidiaries or any parent of the Company the proceeds of which were used solely to purchase Equity Interests of the Company will not be deemed to constitute a Restricted Payment so long as the value of such Equity Interests issued did not increase clause (c) of the preceding paragraph; (vi) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, Restricted Investments made after the date of this Indenture having an aggregate Fair Market Value, taken together with all other Investments made pursuant to this clause (vi) and, without duplication, Investments made pursuant to the this clause (vi) and, without duplication, Investments made pursuant to the comparable clause of the indentures relating to the Existing Notes that are at that time outstanding (without giving effect to any write-up, write-off or write-down), not to exceed 5% of the Company's Consolidated Tangible Assets as of the end of the fiscal quarter most recently completed (with Fair Market Value of each Investment being measured at the time made and without giving effect to subsequent changes in value)Indenture; (vii6) repurchases of Equity Interests deemed to occur upon exercise of stock options if such Equity Interests represent a portion of the exercise price of such options; (viii) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the payment of dividends on the Company's Capital Series A Preferred Stock of up to 6% per annum of the net proceeds received by the Company in its March, 2002 initial public offering; (ix) Investments in Unrestricted Subsidiaries that are made with Excluded Contributions; (x) non-cash Investments in Unrestricted Subsidiaries in the form of administrative, financial, accounting, management, or other similar services (together with a non-cash allocation of corporate overhead), in each case in the ordinary course of business; (xi) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the payment of dividends on Disqualified Stock which is issued in accordance with the terms thereof as in effect on the Closing Date; provided, however, that cash dividends may not be paid on the Series A Preferred Stock pursuant to this clause (6) prior to July 1, 2002; (7) the issuance of Subordinated Notes in exchange for shares of the Series A Preferred Stock; provided that such issuance is permitted by Section 4.09 hereof; and (xii) transactions contemplated by 8) in the offering memorandum dated September 24event that the Company elects to issue Subordinated Notes in exchange for Series A Preferred Stock, 2003 cash payments made in connection with lieu of the issuance of the Subordinated Notes under the caption "Use of Proceeds". The having a face amount of all Restricted Payments (other less than cash) shall be the Fair Market Value on the date of the Restricted Payment of the asset(s) or securities proposed $1,000 and any cash payments representing accrued and unpaid dividends in respect thereof, not to be transferred or issued to or by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment; provided that, notwithstanding the other provisions of this Indenture, with respect to this covenant, an MAI appraiser, accounting firm or valuation firm with experience in such valuation and not affiliated with the Company shall be required if the fair market value of such Restricted Payment or Restricted Payments for any series of transactions exceeds exceed $2.0 million. At least quarterly, the Company shall deliver to the Trustee an Officers' Certificate stating that all Restricted Payments during such quarter were permitted and setting forth the basis upon which the calculations required by this Section 4.07 were computed, together with a copy of any fairness opinion or appraisal required by this Indenture. If a Guarantee constituted a Restricted Investment at the time made, then the payment under such Guarantee shall not constitute an additional Restricted Investment. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default or an Event of Default. In the event of any such designation, all outstanding Investments owned by the Company and its Restricted Subsidiaries 100,000 in the Subsidiary so designated shall be deemed to be an Investment made as of the time of such designation and shall reduce the amount available for Restricted Payments under the first paragraph of this Section 4.07 or Permitted Investments, as applicable. All such outstanding Investments shall be deemed to constitute Restricted Investments aggregate in an amount equal to the fair market value of such Investments at the time of such designation. Such designation shall only be permitted if such Restricted Payment would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if such redesignation would not cause a Default or an Event of Default. Any such designation by the Board of Directors shall be evidenced to the Trustee by filing with the Trustee a certified copy of the board resolution giving effect to such designation and an Officers' Certificate certifying that such designation complied with the foregoing conditions and was permitted by this Section 4.07. If, at any time, any Unrestricted Subsidiary would fail to meet the definition of an Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary of the Company as of such date (fiscal year; and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09 hereof, the Company shall be in default of Section 4.09 hereof). The Board of Directors of the Company may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided that such designation shall be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of the Company of any outstanding Indebtedness of such Unrestricted Subsidiary and such designation shall only be permitted if (a) such Indebtedness is permitted under Section 4.09 hereof, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period, and (b) no Default or Event of Default would be in existence following such designation.
Appears in 1 contract
million. The preceding provisions shall not prohibit: (i) the payment of any dividend within 60 days after the date of declaration thereof, if at date of declaration, such payment would have complied with the provisions of this Indenture; (ii) the redemption, repurchase, retirement, defeasance or other acquisition of any subordinated Indebtedness of the Company or any Guarantor or of any Equity Interests of the Company in exchange for, or out of the net cash proceeds of the substantially concurrent sale, issuance of or contribution for, (other than to a Restricted Subsidiary of the Company), Equity Interests of the Company (other than Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such payment, redemption, repurchase, retirement, defeasance, other acquisition or dividend or distribution shall be excluded from clause (c) of the preceding paragraph; (iii) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the defeasance, redemption, repurchase or other acquisition of subordinated Indebtedness with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness; (iv) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the payment of any dividend or distribution by a Restricted Subsidiary of the Company to the holders of its common Equity Interests on a pro rata basis; (v) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company held by any present, former or future employee, director or Consultant of the Company's (or any of its Restricted Subsidiaries or any parent of the Company) pursuant to any management equity subscription agreement or stock option agreement in effect as of the date of this Indenture or any other similar agreement; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall not exceed $2.0 million in any twelve-month period (with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $4.0 million in any calendar year); provided that such amount in any calendar year may be increased by an amount not to exceed (A) the cash proceeds from the sale of Equity Interests of the Company, any parent of the Company or any of its Restricted Subsidiaries to present, former or future directors, Consultants or employees of the Company, its Restricted Subsidiaries or any parent of the Company that occurred since February 20, 2001 (to the extent the cash proceeds from the sale of such Equity Interest have not otherwise been included in clause (c) of the immediately preceding paragraph), plus (B) the cash proceeds of key man life insurance policies received by the Company, its Restricted Subsidiaries or any parent of the Company since February 20, 2001; and provided that cancellation of Indebtedness owing to the Company from present, former or future directors, Consultants, or employees of the Company, any of its Restricted Subsidiaries or any parent of the Company the proceeds of which were used solely to purchase Equity Interests of the Company will not be deemed to constitute a Restricted Payment so long as the value of such Equity Interests issued did not increase clause (c) of the preceding paragraph; (vi) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, Restricted Investments made after the date of this Indenture having an aggregate Fair Market Value, taken together with all other Investments made pursuant to this clause (vi) and, without duplication, Investments made pursuant to the this clause (vi) and, without duplication, Investments made pursuant to the comparable clause of the indentures relating to the Existing Notes that are at that time outstanding (without giving effect to any write-up, write-off or write-down), not to exceed 5% of the Company's Consolidated Tangible Assets as of the end of the fiscal quarter most recently completed (with Fair Market Value of each Investment being measured at the time made and without giving effect to subsequent changes in value); (vii) repurchases of Equity Interests deemed to occur upon exercise of stock options if such Equity Interests represent a portion of the exercise price of such options; (viii) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the payment of dividends on the Company's Capital Stock of up to 6% per annum of the net proceeds received by the Company in its March, 2002 initial public offering; (ix) Investments in Unrestricted Subsidiaries that are made with Excluded Contributions; (x) non-cash Investments in Unrestricted Subsidiaries in the form of administrative, financial, accounting, management, or other similar services (together with a non-cash allocation of corporate overhead), in each case in the ordinary course of business; (xi) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the payment of dividends on Disqualified Stock which is issued in accordance with Section 4.09 hereof; and (xii) transactions contemplated by the offering memorandum dated September 24, 2003 in connection with the issuance of the Notes under the caption "Use of Proceeds". The amount of all Restricted Payments (other than cash) shall be the Fair Market Value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued to or by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment; provided that, notwithstanding the other provisions of this Indenture, with respect to this covenant, an MAI appraiser, accounting firm or valuation firm with experience in such valuation and not affiliated with the Company shall be required if the fair market value of such Restricted Payment or Restricted Payments for any series of transactions exceeds $2.0 million. At least quarterly, the Company shall deliver to the Trustee an Officers' Certificate stating that all Restricted Payments during such quarter were permitted and setting forth the basis upon which the calculations required by this Section 4.07 were computed, together with a copy of any fairness opinion or appraisal required by this Indenture. If a Guarantee constituted a Restricted Investment at the time made, then the payment under such Guarantee shall not constitute an additional Restricted Investment. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default or an Event of Default. In the event of any such designation, all outstanding Investments owned by the Company and its Restricted Subsidiaries in the Subsidiary so designated shall be deemed to be an Investment made as of the time of such designation and shall reduce the amount available for Restricted Payments under the first paragraph of this Section 4.07 or Permitted Investments, as applicable. All such outstanding Investments shall be deemed to constitute Restricted Investments in an amount equal to the fair market value of such Investments at the time of such designation. Such designation shall only be permitted if such Restricted Payment would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. The Board amount of Directors may redesignate any Unrestricted Subsidiary all Restricted Payments (other than cash) shall be the fair market value on the date of the Restricted Payment of the asset(s) or securities proposed to be a transferred or issued by the Company or such Subsidiary, as the case may be, pursuant to the Restricted Subsidiary if such redesignation would not cause a Default Payment. The fair market value of any assets or an Event of Default. Any such designation securities that are required to be valued by this covenant shall be determined by the Board of Directors whose resolution with respect thereto shall be evidenced delivered to the Trustee, such determination to be based upon an opinion or appraisal issued by an accounting, appraisal or investment banking firm of national standing if such fair market value exceeds $5.0 million. Not later than the date of making any Restricted Payment, the Company shall deliver to the Trustee by filing with the Trustee a certified copy of the board resolution giving effect to such designation and an Officers' Certificate certifying stating that such designation complied Restricted Payment is permitted and setting forth the basis upon which the calculations required by this Section 4.07 were computed, together with a copy of any fairness opinion or appraisal required by this Indenture. Contributions by employees to the foregoing conditions and was permitted Company's Stock Growth Plan, as in effect on the date of this Indenture, and, if such Plan is not a Restricted Subsidiary, payments by such Plan to purchase Equity Interests of the Company, in each case, in the ordinary course of business on a basis consistent with past practice shall not constitute Restricted Payments for the purposes of this Section 4.07. If, at any time, any Unrestricted Subsidiary would fail to meet the definition of an Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary of the Company as of such date (and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09 hereof, the Company shall be in default of Section 4.09 hereof). The Board of Directors of the Company may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided that such designation shall be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of the Company of any outstanding Indebtedness of such Unrestricted Subsidiary and such designation shall only be permitted if (a) such Indebtedness is permitted under Section 4.09 hereof, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period, and (b) no Default or Event of Default would be in existence following such designation.45
Appears in 1 contract
million. The preceding foregoing provisions shall will not prohibit: prohibit (ia) the payment of any dividend within 60 days after the date of declaration thereof, if at said date of declaration, declaration such payment would have complied with the provisions of this Indenture; (iib) the redemption, repurchase, retirement, defeasance or other acquisition of any subordinated Indebtedness of the Company or any Guarantor or of any Equity Interests of the Company in exchange for, or out of the net cash proceeds of the substantially concurrent sale, issuance of or contribution for, sale (other than to a Restricted Subsidiary of the Company)) of, other Equity Interests of the Company (other than any Disqualified Stock); , provided that the amount of any such net cash proceeds that are utilized for any such payment, redemption, repurchase, retirement, defeasance, defeasance or other acquisition or dividend or distribution shall be excluded from clause (ciii)(B) of the preceding paragraph; (iiic) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the defeasance, redemption, repurchase repurchase, retirement or other acquisition of subordinated Indebtedness with the net cash proceeds from an incurrence of of, or in exchange for, Permitted Refinancing Indebtedness; (ivd) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the payment of any dividend or distribution by a Restricted Subsidiary of the Company to the holders of its common Equity Interests on a pro rata basisto the Company or any Wholly Owned Restricted Subsidiary; (ve) so long as no Default or Event of Default has shall have occurred and is continuing or would be caused therebycontinuing, the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company held by any present, former or future employee, director or Consultant employee of the Company's (or any of its Restricted Subsidiaries or any parent of the Company) pursuant to any management equity subscription agreement or stock option agreement in effect as of the date of this Indenture or any other similar agreement; Subsidiaries, provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall not exceed $2.0 million in any twelve-month period (with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $4.0 million 500,000 in any calendar year); provided that such amount in any calendar year may be increased by an amount not to exceed and (Af) the cash proceeds from the sale acquisition of Equity Interests of the Company, any parent of Company in connection with the Company or any of its Restricted Subsidiaries to present, former or future directors, Consultants or employees of the Company, its Restricted Subsidiaries or any parent of the Company that occurred since February 20, 2001 (to the extent the cash proceeds from the sale of such Equity Interest have not otherwise been included in clause (c) of the immediately preceding paragraph), plus (B) the cash proceeds of key man life insurance policies received by the Company, its Restricted Subsidiaries or any parent of the Company since February 20, 2001; and provided that cancellation of Indebtedness owing to the Company from present, former or future directors, Consultants, or employees of the Company, any of its Restricted Subsidiaries or any parent of the Company the proceeds of which were used solely to purchase Equity Interests of the Company will not be deemed to constitute a Restricted Payment so long as the value of such Equity Interests issued did not increase clause (c) of the preceding paragraph; (vi) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, Restricted Investments made after the date of this Indenture having an aggregate Fair Market Value, taken together with all other Investments made pursuant to this clause (vi) and, without duplication, Investments made pursuant to the this clause (vi) and, without duplication, Investments made pursuant to the comparable clause of the indentures relating to the Existing Notes that are at that time outstanding (without giving effect to any write-up, write-off or write-down), not to exceed 5% of the Company's Consolidated Tangible Assets as of the end of the fiscal quarter most recently completed (with Fair Market Value of each Investment being measured at the time made and without giving effect to subsequent changes in value); (vii) repurchases of Equity Interests deemed to occur upon exercise of stock options if such Equity Interests represent a portion or stock appreciation rights by way of the cashless exercise price of such options; (viii) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the payment of dividends on the Company's Capital Stock of up to 6% per annum of the net proceeds received by the Company in its March, 2002 initial public offering; (ix) Investments in Unrestricted Subsidiaries that are made with Excluded Contributions; (x) non-cash Investments in Unrestricted Subsidiaries in the form of administrative, financial, accounting, management, or other similar services (together with a non-cash allocation of corporate overhead), in each case in the ordinary course of business; (xi) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the payment of dividends on Disqualified Stock which is issued in accordance with Section 4.09 hereof; and (xii) transactions contemplated by the offering memorandum dated September 24, 2003 in connection with the issuance satisfaction of the Notes under the caption "Use of Proceeds". The amount of all Restricted Payments (other than cash) shall be the Fair Market Value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued to or by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment; provided that, notwithstanding the other provisions of this Indenture, with respect to this covenant, an MAI appraiser, accounting firm or valuation firm with experience in such valuation and not affiliated with the Company shall be required if the fair market value of such Restricted Payment or Restricted Payments for any series of transactions exceeds $2.0 million. At least quarterly, the Company shall deliver to the Trustee an Officers' Certificate stating that all Restricted Payments during such quarter were permitted and setting forth the basis upon which the calculations required by this Section 4.07 were computed, together with a copy of any fairness opinion or appraisal required by this Indenture. If a Guarantee constituted a Restricted Investment at the time made, then the payment under such Guarantee shall not constitute an additional Restricted Investmentwithholding tax obligations. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default or an Event of Default. In the event For purposes of any making such designationdetermination, all outstanding Investments owned by the Company and its Restricted Subsidiaries (except to the extent repaid in cash) in the Subsidiary so designated shall be deemed to be Restricted Payments at the time of such designation. All such outstanding Investments will be deemed to constitute Investments in an Investment made as amount equal to the greater of (a) the net book value of such Investments at the time of such designation and shall reduce the amount available for Restricted Payments under the first paragraph of this Section 4.07 or Permitted Investments, as applicable. All such outstanding Investments shall be deemed to constitute Restricted Investments in an amount equal to (b) the fair market value of such Investments at the time of such designation. Such designation shall only be permitted if such Restricted Payment would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if such redesignation would not cause a Default or an Event of Default. Any such designation by the Board of Directors shall be evidenced to the Trustee by filing with the Trustee a certified copy of the board resolution giving effect to such designation and an Officers' Certificate certifying that such designation complied with the foregoing conditions and was permitted by this Section 4.07. If, at any time, any Unrestricted Subsidiary would fail to meet the definition of an Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary of the Company as of such date (and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09 hereof, the Company shall be in default of Section 4.09 hereof). The Board of Directors of the Company may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary; , provided that such designation shall be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of the Company of any outstanding Indebtedness of such Unrestricted Subsidiary and such designation shall only be permitted if (a) such Indebtedness is permitted under Section 4.09 hereof, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period, and (b) no Default or Event of Default would be in existence following such designation. Any designation of a Subsidiary as an Unrestricted Subsidiary shall be evidenced to the Trustee by filing with the Trustee a certified copy of a resolution of the Board of Directors giving effect to such designation and an Officers' Certificate certifying that such designation complied with the terms of the definition of Unrestricted Subsidiary set forth in this Indenture and with this Section 4.07. The amount of all Restricted Payments (other than cash) shall be the fair market value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall be determined in the manner contemplated by the definition of the term "fair market value," and the results of such determination shall be evidenced by an Officers' Certificate delivered to the Trustee. Not later than the date of making any Restricted Payment, the Company shall deliver to the Trustee an Officers' Certificate stating that such Restricted Payment is permitted and setting forth the basis upon which the calculations required by this Section 4.07 were computed.
Appears in 1 contract
million. The preceding foregoing provisions shall will not prohibit: prohibit (i) the payment of any dividend within 60 days after the date of declaration thereof, if at said date of declaration, declaration such payment would have complied with the provisions of this Indenture; (ii) the making of any Restricted Investment in exchange for, or out of the proceeds of, the substantially concurrent sale (other than to a Subsidiary of the Company) of, or from substantially concurrent additional capital contributions in respect of, Equity Interests of the Company (other than Disqualified Stock); provided that the amount of any such cash proceeds that are utilized for any such Restricted Investment shall be excluded from clause (c)(ii) of the preceding paragraph; (iii) the redemption, repurchase, retirement, defeasance retirement or other acquisition of any subordinated Indebtedness of the Company or any Guarantor or of any Equity Interests of the Company in exchange for, or out of the net cash proceeds of of, the substantially concurrent sale, issuance of or contribution for, sale (other than to a Restricted Subsidiary of the Company) of, or from substantially concurrent additional capital contributions (other than from a Subsidiary of the Company) in respect of, other Equity Interests of the Company (other than any Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such redemption, repurchase, retirement or other acquisition shall be excluded from clause (c)(ii) of the preceding paragraph; (iv) the defeasance, redemption or repurchase of subordinated Indebtedness with the net cash proceeds from (X) an incurrence of Permitted Refinancing Indebtedness or (Y) the substantially concurrent sale (other than to a Subsidiary of the Company) of, or from substantially concurrent additional capital contributions (other than from a Subsidiary of the Company) in respect of, Equity Interests of the Company (other than Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such payment, redemption, repurchase, retirement, defeasance, other acquisition redemption or dividend or distribution repurchase shall be excluded from clause (cc)(ii) of the preceding paragraph; (iiiv) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the defeasance, redemption, repurchase or other acquisition of subordinated Indebtedness with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness; (iv) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the payment of any dividend or other distribution made by a Restricted any Wholly Owned Subsidiary of the Company to another Wholly Owned Subsidiary of the holders of its common Equity Interests on a pro rata basisCompany or to the Company; and (vvi) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the repurchase, redemption retirement or other acquisition or retirement for value of any common Equity Interests of the Company or any Restricted Subsidiary of the Company held by any presentfuture, present or former employee or future employee, director of the Company or Consultant any of the Company's (or any of its Restricted Subsidiaries or any parent of the Company) pursuant to any management equity subscription agreement plan or stock option agreement in effect as of the date of this Indenture plan or any other similar agreementmanagement or employee benefit plan or agreement in connection with the termination of such person's employment for any reason (including by reason of death or disability); provided provided, however, that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall Restricted Payments made under this clause (vi) do not exceed $2.0 million in any twelve-month period calendar year $2.5 million (with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $4.0 7.5 million in any calendar year); 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 Company from the sale of Equity Interests of the Company, any parent Company to members of management or directors of the Company or any of and its Restricted Subsidiaries to present, former or future directors, Consultants or employees of that occurs after the Company, its Restricted Subsidiaries or any parent of the Company that occurred since February 20, 2001 Issue Date (to the extent the cash proceeds from the sale of such Equity Interest Interests have not otherwise been included in clause applied to the payment of Restricted Payments by virtue of the preceding paragraph (c) of the immediately preceding paragraph)), plus (B) the cash proceeds of key man life insurance policies received by the Company, Company and its Restricted Subsidiaries or after the Issue Date, less (C) the amount of any parent of the Company since February 20, 2001; Restricted Payments made pursuant to clauses (A) and provided that cancellation of Indebtedness owing to the Company from present, former or future directors, Consultants, or employees of the Company, any of its Restricted Subsidiaries or any parent of the Company the proceeds of which were used solely to purchase Equity Interests of the Company will not be deemed to constitute a Restricted Payment so long as the value of such Equity Interests issued did not increase clause (cB) of this subparagraph (vi); provided however that in the preceding paragraph; case of any transaction described in clauses (ii) through (iv) and clause (vi) so long as no Default or Event of Default has will have occurred and is be continuing or would be caused thereby, immediately after such transaction. In determining the aggregate amount of Restricted Investments Payments made after the date hereof, 100% of this Indenture having an aggregate Fair Market Value, taken together with all other Investments made the amounts expended pursuant to this clause the foregoing clauses (i) and (vi) and, without duplication, Investments made shall be included in such calculation and none of the amounts expended pursuant to the this clause foregoing clauses (viii), (iii), (iv) and, without duplication, Investments made pursuant to the comparable clause and (v) shall be included in such calculation. As of the indentures relating to the Existing Notes that are at that time outstanding (without giving effect to any write-update hereof, write-off or write-down), not to exceed 5% all of the Company's Consolidated Tangible Assets as of the end of the fiscal quarter most recently completed (with Fair Market Value of each Investment being measured at the time made and without giving effect to subsequent changes in value); (vii) repurchases of Equity Interests deemed to occur upon exercise of stock options if such Equity Interests represent a portion of the exercise price of such options; (viii) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the payment of dividends on the Company's Capital Stock of up to 6% per annum of the net proceeds received by the Company in its March, 2002 initial public offering; (ix) Investments in Unrestricted Subsidiaries that are made with Excluded Contributions; (x) non-cash Investments in Unrestricted Subsidiaries in the form of administrative, financial, accounting, management, or other similar services (together with a non-cash allocation of corporate overhead), in each case in the ordinary course of business; (xi) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the payment of dividends on Disqualified Stock which is issued in accordance with Section 4.09 hereof; and (xii) transactions contemplated by the offering memorandum dated September 24, 2003 in connection with the issuance of the Notes under the caption "Use of Proceeds". The amount of all were Restricted Payments (other than cash) shall be the Fair Market Value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued to or by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment; provided that, notwithstanding the other provisions of this Indenture, with respect to this covenant, an MAI appraiser, accounting firm or valuation firm with experience in such valuation and not affiliated with the Company shall be required if the fair market value of such Restricted Payment or Restricted Payments for any series of transactions exceeds $2.0 million. At least quarterly, the Company shall deliver to the Trustee an Officers' Certificate stating that all Restricted Payments during such quarter were permitted and setting forth the basis upon which the calculations required by this Section 4.07 were computed, together with a copy of any fairness opinion or appraisal required by this Indenture. If a Guarantee constituted a Restricted Investment at the time made, then the payment under such Guarantee shall not constitute an additional Restricted InvestmentSubsidiaries. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default or an Event of Default. In the event For purposes of any making such designationdetermination, all outstanding Investments owned by the Company and its Restricted Subsidiaries (except to the extent repaid in cash) in the Subsidiary so designated shall will be deemed to be an Investment made as of Restricted Payments at the time of such designation and shall will reduce the amount available for Restricted Payments under the first paragraph of this Section 4.07 or Permitted Investments, as applicable. All such outstanding Investments shall be deemed to constitute Restricted Investments in an amount equal to the fair market value of such Investments at the time of such designationcovenant. Such designation shall will only be permitted if such Restricted Payment would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. The Board amount of Directors may redesignate any Unrestricted Subsidiary to all Restricted Payments (other than cash) shall be the fair market value (evidenced by a Restricted Subsidiary if such redesignation would not cause a Default or an Event resolution of Default. Any such designation by the Board of Directors shall be evidenced to the Trustee by filing with the Trustee a certified copy of the board resolution giving effect to such designation and set forth in an Officers' Certificate certifying that such designation complied with delivered to the foregoing conditions and was permitted Trustee) on the date of the Restricted Payment of the asset(s) proposed to be transferred by this Section 4.07. If, at any time, any Unrestricted Subsidiary would fail to meet the definition of an Unrestricted Company or the applicable Restricted Subsidiary, it shall thereafter cease as the case may be, pursuant to be an Unrestricted Subsidiary for purposes the Restricted Payment. Not later than the date of this Indenture and making any Indebtedness of such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary of the Company as of such date (and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09 hereofPayment, the Company shall be in default of Section 4.09 hereof). The Board of Directors of deliver to the Company may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided Trustee an Officers' Certificate stating that such designation shall be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of the Company of any outstanding Indebtedness of such Unrestricted Subsidiary and such designation shall only be permitted if (a) such Indebtedness Payment is permitted under Section 4.09 hereofand setting forth the basis upon which the calculation required by this covenant were computed, calculated on a pro forma basis as if such designation had occurred at which calculations may be based upon the beginning of the four-quarter reference period, and (b) no Default or Event of Default would be in existence following such designationCompany's latest available financial statements.
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Sources: Indenture (Houston Exploration Co)