million. The foregoing provisions will not prohibit (i) the payment of any dividend within 60 days after the date of declaration thereof, if at said date of declaration such payment would have complied with the provisions of this Indenture; (ii) the redemption, repurchase, retirement, defeasance or other acquisition of any subordinated Indebtedness or Equity Interests of the Company or any Guarantor in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Restricted Subsidiary of the Company) of, other Equity Interests of the Company (other than any Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such redemption, repurchase, retirement, defeasance or other acquisition shall be excluded from clause (c)(ii) of the preceding paragraph; (iii) the defeasance, redemption, repurchase, retirement or other acquisition of subordinated Indebtedness in exchange for, or with the net cash proceeds from, an incurrence of Permitted Refinancing Indebtedness; (iv) 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 shall have occurred and is continuing, the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company, Holdings or any Restricted Subsidiary of the Company, held by any member of the Company's (or any of its Subsidiaries') management, employees or consultants pursuant to any management, employee or consultant equity subscription agreement or stock option agreement in effect as of the date hereof; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall not exceed (1) $1.5 million in any twelve-month period and (2) in the aggregate, the sum of (A) $7.0 million and (B) the aggregate cash proceeds received by the Company from any reissuance of Equity Interests by Holdings or the Company to members of management of the Company and its Subsidiaries (provided that the cash proceeds referred to in this clause (B) 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, the declaration and payment of dividends to holders of any class or series of Disqualified Stock of the Company or any Guarantor issued after the date hereof in accordance with Section 4.09; and (x) so long as (A) no Default or Event of Default has occurred and is continuing and (B) immediately before and immediately after giving effect thereto, the 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 date hereof, provided that such interest payments are made with the proceeds of such dividends, and (II) 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 by the 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 dividend. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default or an Event of Default. For purposes of making such determination, all outstanding Investments by the Company and its Restricted Subsidiaries (except to the extent repaid in cash) in the Subsidiary so designated will be deemed to be Restricted Payments at the time of such designation and will reduce the amount available for Restricted Payments under the first paragraph of this covenant. All such outstanding Investments will be deemed to constitute Investments in an amount equal to the 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 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 amount of 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 transferred or issued by the Company or such Restricted 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 Qualified Proceeds. The fair market value of any non-cash Restricted Payment and Qualified Proceeds 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 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 an Officers' Certificate stating that such Restricted Payment is permitted and setting forth the basis upon which the calculations required by Section 4.07 were computed, together with a copy of any fairness opinion or appraisal required by this Indenture.
Appears in 2 contracts
million. (b) The foregoing provisions will shall not prohibit (i1) the payment of any dividend within 60 days after the date of declaration thereof, if at said date of declaration such payment would have complied with the provisions of this Indenture; (ii2) the redemption, repurchase, retirement, defeasance retirement or other acquisition of any Equity Interests or subordinated Indebtedness or Equity Interests of the Company or any Guarantor in exchange for, or out of the net cash proceeds of of, the substantially concurrent sale (other than to a Restricted Subsidiary of the Company) of, of other Equity Interests of the Company (other than any Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such redemption, repurchase, retirement, defeasance retirement or other acquisition shall be excluded from clause (c)(iiC)(ii) of the preceding paragraph; (iii3) the defeasance, redemption, repurchase, retirement redemption or other acquisition repurchase of subordinated Indebtedness in exchange for, or 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) 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 shall have occurred and is continuing, the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company, Holdings or any Restricted Subsidiary of the Company, held by any member of the Company's (or any of its Subsidiaries') management, employees or consultants pursuant to any management, employee or consultant equity subscription agreement or stock option agreement in effect as of the date hereof; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall not exceed (1) $1.5 million in any twelve-month period and (2) in the aggregate, the sum of (A) $7.0 million and (B) the aggregate cash proceeds received by the Company of advances under the Split Dollar Agreement in an amount not to exceed $250,000 in any four-quarter period; (5) the repurchase or redemption from any reissuance of Equity Interests by Holdings or the Company to members of management employees of the Company and its Subsidiaries (provided that other than the cash proceeds referred to in this clause (B) shall be excluded from clause (c)(iiPrincipal) of Capital Stock of the preceding paragraph)Company in an amount not to exceed an aggregate of $5.0 million since the date of this Indenture; (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; (viii6) the payment of dividends on the Series A 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, the declaration and payment of dividends to holders of any class or series of Disqualified Series B Preferred Stock of the Company or any Guarantor issued after the date hereof in accordance with Section 4.09; and (x) so long as (A) no Default or Event of Default has occurred and is continuing and (B) immediately before and immediately after giving effect thereto, the 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 as in effect on the date hereofClosing 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 interest payments are made with issuance is permitted by Section 4.09 hereof; (8) in the proceeds of such dividends, and (II) a $16.0 million cash dividend event that the Company shall be entitled elects to declare and pay to Holdings on April 15issue Subordinated Exchange Notes in exchange for Series A or Series B Preferred Stock, 2003 to enable Holdings to redeem $33.2 million aggregate principal amount at maturity cash payments made in lieu of the Holdings Senior Discount Debentures as required by issuance of Subordinated Exchange Notes having a face amount less than $1,000 and any cash payments representing accrued and unpaid dividends in respect thereof, not to exceed $100,000 in the terms aggregate in any fiscal year; and (9) cash payments made in lieu of the Holdings Senior Discount Debentures issuance of additional Subordinated Exchange Notes having a face amount less than $1,000 and any cash payments representing accrued and unpaid interest in accordance with such terms in effect on the date hereofrespect thereof, provided that such redemption is made with the proceeds of such dividend. The Board of Directors may designate any Restricted Subsidiary not to be an Unrestricted Subsidiary if such designation would not cause a Default or an Event of Default. For purposes of making such determination, all outstanding Investments by the Company and its Restricted Subsidiaries (except to the extent repaid in cash) exceed $100,000 in the Subsidiary so designated will be deemed to be Restricted Payments at the time of such designation and will reduce the amount available for Restricted Payments under the first paragraph of this covenant. All such outstanding Investments will be deemed to constitute Investments aggregate 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 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 amount of 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 transferred or issued by the Company or such Restricted 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 Qualified Proceeds. The fair market value of any non-cash Restricted Payment and Qualified Proceeds 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 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 an Officers' Certificate stating that such Restricted Payment is permitted and setting forth the basis upon which the calculations required by Section 4.07 were computed, together with a copy of any fairness opinion or appraisal required by this Indenturefiscal year.
Appears in 2 contracts
Samples: Indenture (Pegasus Satellite Communications Inc), Pegasus Communications Corp /
million. The foregoing provisions will not prohibit (iA) the payment of any dividend within 60 days after the date of declaration thereof, if at said date of declaration such payment would have complied with the provisions of this Indenture; (iiB) the redemption, repurchase, retirement, defeasance retirement or other acquisition or retirement for value of any subordinated Indebtedness or Equity Interests of the Company or any Guarantor in exchange for, or out of with the net cash proceeds of of, the substantially concurrent sale (other than to a Restricted Subsidiary of the Company) of, of other Equity Interests of the Company (other than any Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such redemption, repurchase, retirement, defeasance or other acquisition shall be excluded from clause (c)(ii) of the preceding paragraph; (iiiC) the defeasance, redemption, repurchase, retirement or other acquisition or retirement for value of Indebtedness that is subordinated Indebtedness or pari passu in right of payment to the Notes in exchange for, or with the net cash proceeds fromof, an incurrence of Permitted Refinancing Indebtedness; a substantially concurrent issuance and sale (iv) the payment of any dividend (or the making of a similar distribution or redemption) by other than to a Restricted Subsidiary of the Company to the holders Company) of its common Equity Interests on a pro rata basisof the Company (other than Disqualified Stock); (vD) so long as no Default or Event of Default shall have occurred and is continuingthe defeasance, the redemption, repurchase, redemption retirement or other acquisition or retirement for value of any Equity Interests Indebtedness that is subordinated or pari passu in right of payment to the CompanyNotes in exchange for, Holdings or any Restricted Subsidiary of with the Companynet cash proceeds of, held by any member of a substantially concurrent issue and sale (other than to the Company's (Company or any of its Restricted Subsidiaries') managementof Refinancing Indebtedness; (E) the repurchase of any Indebtedness subordinated or pari passu in right of payment to the Notes at a purchase price not greater than 101% of the principal amount of such Indebtedness in the event of a Change of Control in accordance with provisions similar to the covenant set forth in Section 4.14 hereof, provided that prior to or 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 consultants pursuant to any management, employee or consultant equity subscription agreement or stock option agreement in effect as directors of the date hereof; Company for repurchases of stock, stock options or other equity interests, provided that the aggregate price paid for amount of all such repurchased, redeemed, acquired or retired Equity Interests shall payments under this clause (F) does not exceed (1) $1.5 million 500,000 in any twelve-month period year and (2) $2.0 million in the aggregate. The Restricted Payments described in clauses (B), (C), (E) and (F) of the sum immediately preceding paragraph will be Restricted Payments that will be permitted to be taken in accordance with such paragraph but will reduce the amount that would otherwise be available for Restricted Payments under clause (iii) of the first paragraph of this section, and the Restricted Payments described in clauses (A) $7.0 million and (BD) of the immediately preceding paragraph will be Restricted Payments that will be permitted to be taken in accordance with such paragraph and 37 will not reduce the amount that would otherwise be available for Restricted Payments under clause (iii) of the first paragraph of this section. If an Investment results in the making of a Restricted Payment, the aggregate amount of all Restricted Payments deemed to have been made as calculated under the foregoing provision will be reduced by the amount of any net reduction in such Investment (resulting from the payment of interest or dividends, loan repayment, transfer of assets or otherwise) to the extent such net reduction is not included in the Company's EBITDA; provided, however, that the total amount by which the aggregate amount of all Restricted Payments may be reduced may not exceed the lesser of (a) the aggregate cash proceeds received by the Company from 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 reissuance of Equity Interests by Holdings or calculations under this Indenture, (a) an Investment will include the Company to members of management fair market value of the Company net assets of any Restricted Subsidiary at the time that such Restricted Subsidiary is designated an Unrestricted Subsidiary and its Subsidiaries (provided that will exclude the cash proceeds referred to in this clause (B) shall be excluded from clause (c)(ii) fair market value of the preceding paragraph); net assets of any Unrestricted Subsidiary that is designated as a Restricted Subsidiary, (vib) payments required any property transferred to or from an Unrestricted Subsidiary will be made under valued at fair market value at the Tax Sharing Agreement; (vii) distributions made time of such transfer, provided that, in each case, the fair market value of an asset or property is as determined by the Company on the date hereof, the proceeds Board 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 Directors 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, the declaration and payment of dividends to holders of any class or series of Disqualified Stock of the Company or any Guarantor issued after the date hereof in accordance with Section 4.09; and (x) so long as (A) no Default or Event of Default has occurred and is continuing and (B) immediately before and immediately after giving effect thereto, the 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 date hereof, provided that such interest payments are made with the proceeds of such dividendsgood faith, and (IIc) a $16.0 million cash dividend that subject to the Company shall foregoing, the amount of any Restricted Payment, if other than cash, will 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 determined by the terms Board of the Holdings Senior Discount Debentures in accordance with such terms in effect on the date hereofDirectors, provided that such redemption is made with the proceeds of such dividendwhose good faith determination will be conclusive. The Board of Directors may designate any a Restricted Subsidiary to be an Unrestricted Subsidiary if in compliance with Section 4.17 hereof. Upon such designation would not cause a Default or an Event of Default. For purposes of making such determinationdesignation, all outstanding Investments by the Company and its Restricted Subsidiaries (except to the extent repaid in cash) in the Subsidiary so designated will be deemed to be Restricted Payments made at the time of such designation and will reduce the amount available for Restricted Payments under the first paragraph of this covenant. All such outstanding Investments will be deemed to constitute Investments in an amount equal to the 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 designationSection 4.07. Such designation will only be permitted if such Restricted Payment would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. The amount of 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 transferred or issued by the Company or such Restricted 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 Qualified Proceeds. The fair market value of any non-cash Restricted Payment and Qualified Proceeds 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 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 an Officers' Certificate stating that such Restricted Payment is permitted and setting forth the basis upon which the calculations required by Section 4.07 were computed, together with a copy of any fairness opinion or appraisal required by this Indenture.
Appears in 1 contract
million. The foregoing provisions will not prohibit (i) the payment of any dividend within 60 days after the date of declaration thereof, if at said date of declaration such payment would have complied with the provisions of this the Indenture; (ii) the redemption, repurchase, retirement, defeasance or other acquisition of any subordinated Indebtedness or Equity Interests of the Company or any Guarantor in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Restricted Subsidiary of the Company) of, other Equity Interests of the Company (other than any Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such redemption, repurchase, retirement, defeasance or other acquisition shall be excluded from clause (c)(iic) (2) of the preceding paragraph; (iii) the defeasance, redemption, repurchase, retirement retirement, defeasance or other acquisition of subordinated Indebtedness in exchange for, or with the net cash proceeds from, from an incurrence of Permitted Refinancing Indebtedness; (iv) 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 shall have occurred and is continuing, the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company, Holdings Company or any Restricted Subsidiary of the Company, Company held by any member of the Company's (or any of its Restricted Subsidiaries') management, employees management or consultants pursuant to board of directors or any management, employee or consultant equity subscription agreement or stock option agreement in effect as of the date hereofownership plan; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall not exceed (1) $1.5 1.0 million in any twelve-month period and period; (2v) Tax Distributions in the aggregate, the sum respect of (A) $7.0 million and (B) the aggregate cash proceeds received by periods when the Company from any reissuance of Equity Interests by Holdings or the Company to members of management of the Company and its Subsidiaries (provided that the cash proceeds referred to in this clause (B) shall be excluded from clause (c)(ii) of the preceding paragraph); is an S Corporation, (vi) payments required to be made under the Tax Sharing AgreementCommitted Restricted Investments; (vii) distributions made Restricted Investments consisting of payments pursuant to guaranties (not prohibited by the Company on the date hereof, the proceeds provisions of which are utilized solely to consummate the Recapitalizationthis Indenture) of Indebtedness; (viii) the payment Restricted Investments consisting of dividends or the making payments pursuant to reimbursement obligations in respect of loans or advances letters of credit (not prohibited 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 provisions of the CompanyIndenture) securing Indebtedness or other obligations; and (ix) so long as no Default or Event Restricted Investments consisting of Default has occurred and is continuing, payments pursuant to guaranties (not prohibited by the declaration and payment of dividends to holders of any class or series of Disqualified Stock provisions of the Company or Indenture) of obligations (other than Indebtedness), provided, however, that at the time of, and after giving effect to, any Guarantor issued after the date hereof in accordance with Section 4.09; and Restricted Payment permitted under clauses (xi) so long as through (Aiv) no Default or Event of Default has shall have occurred and be continuing. The amount of all Restricted Payments (other than cash) shall be the fair market value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall be determined in good faith by the Board of Directors whose resolution with respect thereto shall be delivered to the Trustee. Notwithstanding the two preceding sentences, the amount of any Restricted Investment that is continuing and a guarantee of (Bor the furnishing of a letter or credit as security for) immediately before and immediately after giving effect theretoIndebtedness or other obligations shall be as determined under the definition of "Investments." Not later than the date of making any Restricted Payment, the Company would have been permitted to incur at least $1.00 of additional Indebtedness pursuant shall deliver 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 Trustee 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 date hereof, provided Officers' Certificate stating that such interest payments are made with Restricted Payments were permitted and setting forth the proceeds of such dividends, and (II) a $16.0 million cash dividend that basis upon which 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 calculations required by the 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 dividendthis Section 4.10 were computed. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default or an Event of Default. For purposes of making such determination, all outstanding Investments by the Company and its Restricted Subsidiaries (except to the extent repaid in cash) in the Subsidiary so designated will be deemed to be Restricted Payments at the time of such designation and will reduce the amount available for Restricted Payments under the first paragraph of this covenantSection 4.10. All such outstanding Investments in the Subsidiary so designated will be deemed to constitute 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 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 amount of 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 transferred or issued by the Company or Any such Restricted 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 Qualified Proceeds. The fair market value of any non-cash Restricted Payment and Qualified Proceeds shall be determined designation by the Board of Directors whose resolution with respect thereto shall be delivered evidenced to the TrusteeTrustee 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. If, such determination at any time, any Unrestricted Subsidiary would fail to meet the definition of an Unrestricted Subsidiary, it shall thereafter cease to be based upon an opinion or appraisal issued Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary shall be deemed to be incurred by an accounting, appraisal or investment banking firm a Restricted Subsidiary of national standingthe Company as of such date (and, if such fair market value exceeds $10.0 million. Not later than the Indebtedness is not permitted to be incurred as of such date of making any Restricted Paymentunder Section 4.09 hereof, the Company shall deliver be in default of such Section). The Board of Directors of the Company may at any time designate any Unrestricted Subsidiary to the Trustee an Officers' Certificate stating be a Restricted Subsidiary; provided that such designation shall be deemed to be an incurrence of Indebtedness by a Restricted Payment Subsidiary of the Company of any outstanding Indebtedness of such Unrestricted Subsidiary and such designation shall only be permitted if (i) such Indebtedness is permitted under Section 4.09 hereof, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period, and setting forth the basis upon which the calculations required by Section 4.07 were computed, together with a copy (ii) no Default or Event of any fairness opinion or appraisal required by this IndentureDefault would be in existence following such designation.
Appears in 1 contract
Samples: Sbarro Inc
million. (b) The foregoing provisions will shall not prohibit (i1) the payment of any dividend within 60 days after the date of declaration thereof, if at said date of declaration such payment would have complied with the provisions of this Indenture; (ii2) the redemption, repurchase, retirement, defeasance retirement or other acquisition of any Equity Interests or subordinated Indebtedness or Equity Interests of the Company or any Guarantor in exchange for, or out of the net cash proceeds of of, the substantially concurrent sale (other than to a Restricted Subsidiary of the Company) of, of other Equity Interests of the Company (other than any Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such redemption, repurchase, retirement, defeasance retirement or other acquisition shall be excluded from clause (c)(iiC)(ii) of the preceding paragraph; (iii3) the defeasance, redemption, repurchase, retirement redemption or other acquisition repurchase of subordinated Indebtedness in exchange for, or 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) 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 shall have occurred and is continuing, the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company, Holdings or any Restricted Subsidiary of the Company, held by any member of the Company's (or any of its Subsidiaries') management, employees or consultants pursuant to any management, employee or consultant equity subscription agreement or stock option agreement in effect as of the date hereof; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall not exceed (1) $1.5 million in any twelve-month period and (2) in the aggregate, the sum of (A) $7.0 million and (B) the aggregate cash proceeds received by the Company of advances under the Split Dollar Agreement in an amount not to exceed $250,000 in any four-quarter period; (5) the repurchase or redemption from any reissuance of Equity Interests by Holdings or the Company to members of management employees of the Company and its Subsidiaries (provided that other than the cash proceeds referred to in this clause (B) shall be excluded from clause (c)(iiPrincipal) of Capital Stock of the preceding paragraph)Company in an amount not to exceed an aggregate of $5.0 million since the date of this Indenture; (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; (viii6) the payment of dividends or on 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, the declaration and payment of dividends to holders of any class or series of Disqualified Series A Preferred Stock of the Company or any Guarantor issued after the date hereof in accordance with Section 4.09; and (x) so long as (A) no Default or Event of Default has occurred and is continuing and (B) immediately before and immediately after giving effect thereto, the 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 as in effect on the date hereofClosing 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 interest payments are made with issuance is permitted by Section 4.09 hereof; (8) in the proceeds of such dividends, and (II) a $16.0 million cash dividend event that the Company shall be entitled elects to declare and pay to Holdings on April 15issue Subordinated Notes in exchange for Series A Preferred Stock, 2003 to enable Holdings to redeem $33.2 million aggregate principal amount at maturity cash payments made in lieu of the Holdings Senior Discount Debentures as required by issuance of Subordinated Notes having a face amount less than $1,000 and any cash payments representing accrued and unpaid dividends in respect thereof, not to exceed $100,000 in the terms aggregate in any fiscal year; and (9) cash payments made in lieu of the Holdings Senior Discount Debentures issuance of additional Subordinated Notes having a face amount less than $1,000 and any cash payments representing accrued and unpaid interest in accordance with such terms in effect on the date hereofrespect thereof, provided that such redemption is made with the proceeds of such dividend. The Board of Directors may designate any Restricted Subsidiary not to be an Unrestricted Subsidiary if such designation would not cause a Default or an Event of Default. For purposes of making such determination, all outstanding Investments by the Company and its Restricted Subsidiaries (except to the extent repaid in cash) exceed $100,000 in the Subsidiary so designated will be deemed to be Restricted Payments at the time of such designation and will reduce the amount available for Restricted Payments under the first paragraph of this covenant. All such outstanding Investments will be deemed to constitute Investments aggregate 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 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 amount of 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 transferred or issued by the Company or such Restricted 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 Qualified Proceeds. The fair market value of any non-cash Restricted Payment and Qualified Proceeds 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 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 an Officers' Certificate stating that such Restricted Payment is permitted and setting forth the basis upon which the calculations required by Section 4.07 were computed, together with a copy of any fairness opinion or appraisal required by this Indenturefiscal year.
Appears in 1 contract
million. The foregoing provisions will not prohibit (i) the payment of any dividend within 60 days after the date of declaration thereof, if at said date of declaration such payment would have complied with the provisions of this Indenture; (ii) the redemption, repurchase, retirement, defeasance or other acquisition making of any subordinated Indebtedness or Equity Interests of the Company or any Guarantor Restricted Investment in exchange for, or out of the net cash proceeds of of, the substantially concurrent sale (other than to a Restricted Subsidiary of the Company) of, 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 or other acquisition of any Equity Interests of the Company in exchange for, or out of the proceeds of, the substantially concurrent sale (other than to a Subsidiary of the Company) of, 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, defeasance retirement or other acquisition shall be excluded from clause (c)(ii) of the preceding paragraph; (iiiiv) the defeasance, redemption, repurchase, retirement redemption or other acquisition repurchase of subordinated Indebtedness in exchange for, or with the net cash proceeds from, from (X) an incurrence of Permitted Refinancing Indebtedness; Indebtedness or (ivY) the payment of any dividend substantially concurrent sale (or the making of other than to a similar distribution or redemption) by a Restricted Subsidiary of the Company to Company) of, or from substantially concurrent additional capital contributions (other than from a Subsidiary of the holders of its common Equity Interests on a pro rata basis; (vCompany) so long as no Default or Event of Default shall have occurred and is continuingin respect of, the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company, Holdings or any Restricted Subsidiary of the Company, held by any member of the Company's Company (or any of its Subsidiaries') management, employees or consultants pursuant to any management, employee or consultant equity subscription agreement or stock option agreement in effect as of the date hereofother than Disqualified Stock); provided that the aggregate price paid for all amount of any such repurchased, redeemed, acquired or retired Equity Interests shall not exceed (1) $1.5 million in any twelve-month period and (2) in the aggregate, the sum of (A) $7.0 million and (B) the aggregate net cash proceeds received by the Company from that are utilized for any reissuance of Equity Interests by Holdings such defeasance, redemption or the Company to members of management of the Company and its Subsidiaries (provided that the cash proceeds referred to in this clause (B) repurchase shall be excluded from clause (c)(ii) of the preceding paragraph); (v) any dividend or other distribution made by any Wholly Owned Subsidiary of the Company to another Wholly Owned Subsidiary of the Company or to the Company; and (vi) payments required to be made under the Tax Sharing Agreement; (vii) distributions made by repurchase, retirement or other acquisition or retirement for value of common Equity Interests of the Company on the date hereofheld by any future, the proceeds of which are utilized solely to consummate the Recapitalization; (viii) the payment of dividends present or the making of loans former employee 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, the declaration and payment of dividends to holders of any class or series of Disqualified Stock director of the Company or any Guarantor issued of the Company's Restricted Subsidiaries pursuant to any management equity plan or stock option plan or any other management 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, however, that the aggregate Restricted Payments made under this clause (vi) do not exceed in any 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 $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 to members of management or directors of the Company and its Restricted Subsidiaries that occurs after the date hereof in accordance with Section 4.09; Issue Date (to the extent the cash proceeds from the sale of such Equity Interests have not otherwise been applied to the payment of Restricted Payments by virtue of the preceding paragraph (c)), plus (B) the cash proceeds of key man life insurance policies received by the Company and its Restricted Subsidiaries after the Issue Date, less (C) the amount of any Restricted Payments made pursuant to clauses (A) and (xB) so long as of this subparagraph (Avi); provided however that in the case of any transaction described in clauses (ii) through (iv) and clause (vi) no Default or Event of Default has will have occurred and is be continuing and (B) immediately before and immediately after giving effect thereto, such transaction. In determining the Company would have been permitted to incur at least $1.00 aggregate amount 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 Restricted Payments made 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 date hereof, provided that such interest payments are made with 100% of the proceeds of such dividends, amounts expended pursuant to the foregoing clauses (i) and (IIvi) a $16.0 million cash dividend that the Company shall be entitled to declare included in such calculation and pay to Holdings on April 15, 2003 to enable Holdings to redeem $33.2 million aggregate principal amount at maturity none of the Holdings Senior Discount Debentures as required by amounts expended pursuant to the terms foregoing clauses (ii), (iii), (iv) and (v) shall be included in such calculation. As of the Holdings Senior Discount Debentures in accordance with such terms in effect on the date hereof, provided that such redemption is made with all of the proceeds of such dividendCompany's Subsidiaries were Restricted Subsidiaries. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default or an Event of Default. For purposes of making such determination, all outstanding Investments by the Company and its Restricted Subsidiaries (except to the extent repaid in cash) in the Subsidiary so designated will be deemed to be Restricted Payments at the time of such designation and will reduce the amount available for Restricted Payments under the first paragraph of this covenant. All such outstanding Investments will be deemed to constitute Investments in an amount equal to the 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 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 amount of all (i) Restricted Payments (other than cash) shall be the fair market value (evidenced by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the Trustee) on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company or such the applicable Restricted 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 Qualified Proceeds. The fair market value of any non-cash Restricted Payment and Qualified Proceeds 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 appraisal issued by an accounting, appraisal or investment banking firm of national standing, if such fair market value exceeds $10.0 millionPayment. 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 calculation required by Section 4.07 this covenant were computed, together with a copy of any fairness opinion or appraisal required by this Indenturewhich calculations may be based upon the Company's latest available financial statements.
Appears in 1 contract
Samples: Houston Exploration Co
million. The foregoing provisions will not prohibit (iA) the payment of any dividend within 60 days after the date of declaration thereof, if at said date of declaration such payment would have complied with the provisions of this Indenture; (iiB) the redemption, repurchase, retirement, defeasance retirement or other acquisition or retirement for value of any subordinated Indebtedness or Equity Interests of the Company or any Guarantor in exchange for, or out of with the net cash proceeds of of, the substantially concurrent sale (other than to a Restricted Subsidiary of the Company) of, of other Equity Interests of the Company (other than any Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such redemption, repurchase, retirement, defeasance or other acquisition shall be excluded from clause (c)(ii) of the preceding paragraph; (iiiC) the defeasance, redemption, repurchase, retirement or other acquisition or retirement for value of Indebtedness that is subordinated Indebtedness or pari passu in right of payment to the Notes in exchange for, or with the net cash proceeds fromof, an incurrence of Permitted Refinancing Indebtedness; a substantially concurrent issuance and sale (iv) the payment of any dividend (or the making of a similar distribution or redemption) by other than to a Restricted Subsidiary of the Company to the holders Company) of its common Equity Interests on a pro rata basisof the Company (other than Disqualified Stock); (vD) so long as no Default or Event of Default shall have occurred and is continuingthe defeasance, the redemption, repurchase, redemption retirement or other acquisition or retirement for value of any Equity Interests Indebtedness that is subordinated or pari passu in right of payment to the CompanyNotes in exchange for, Holdings or any Restricted Subsidiary of with the Companynet cash proceeds of, held by any member of a substantially concurrent issue and sale (other than to the Company's (Company or any of its Restricted Subsidiaries') managementof Refinancing Indebtedness; (E) the repurchase of any Indebtedness subordinated or pari passu in right of payment to the Notes at a purchase price not greater than 101% of the principal amount of such Indebtedness in the event of a Change of Control in accordance with provisions similar to the covenant set forth in Section 4.14 hereof, provided that prior to or 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 consultants pursuant to any management, employee or consultant equity subscription agreement or stock option agreement in effect as directors of the date hereof; Company for repurchases of stock, stock options or other equity interests, provided that the aggregate price paid for amount of all such repurchased, redeemed, acquired or retired Equity Interests shall payments under this clause (F) does not exceed (1) $1.5 million 500,000 in any twelve-month period year and (2) $2.0 million in the aggregate. The Restricted Payments described in clauses (B), (C), (E) and (F) of the sum immediately preceding paragraph will be Restricted Payments that will be permitted to be taken in accordance with such paragraph but will reduce the amount that would otherwise be available for Restricted Payments under clause (iii) of the first paragraph of this section, and the Restricted Payments described in clauses (A) $7.0 million and (BD) of the immediately preceding paragraph will be Restricted Payments that will be permitted to be taken in accordance with such paragraph and will not reduce the amount that would otherwise be available for Restricted Payments under clause (iii) of the first paragraph of this section. If an Investment results in the making of a Restricted Payment, the aggregate amount of all Restricted Payments deemed to have been made as calculated under the foregoing provision will be reduced by the amount of any net reduction in such Investment (resulting from the payment of interest or dividends, loan repayment, transfer of assets or otherwise) to the extent such net reduction is not included in the Company's EBITDA; provided, however, that the total amount by which the aggregate amount of all Restricted Payments may be reduced may not exceed the lesser of (a) the aggregate cash proceeds received by the Company from 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 reissuance of Equity Interests by Holdings or calculations under this Indenture, (a) an Investment will include the Company to members of management fair market value of the Company net assets of any Restricted Subsidiary at the time that such Restricted Subsidiary is designated an Unrestricted Subsidiary and its Subsidiaries (provided that will exclude the cash proceeds referred to in this clause (B) shall be excluded from clause (c)(ii) fair market value of the preceding paragraph); net assets of any Unrestricted Subsidiary that is designated as a Restricted Subsidiary, (vib) payments required any property transferred to or from an Unrestricted Subsidiary will be made under valued at fair market value at the Tax Sharing Agreement; (vii) distributions made time of such transfer, provided that, in each case, the fair market value of an asset or property is as determined by the Company on the date hereof, the proceeds Board 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 Directors 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, the declaration and payment of dividends to holders of any class or series of Disqualified Stock of the Company or any Guarantor issued after the date hereof in accordance with Section 4.09; and (x) so long as (A) no Default or Event of Default has occurred and is continuing and (B) immediately before and immediately after giving effect thereto, the 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 date hereof, provided that such interest payments are made with the proceeds of such dividendsgood faith, and (IIc) a $16.0 million cash dividend that subject to the Company shall foregoing, the amount of any Restricted Payment, if other than cash, will 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 determined by the terms Board of the Holdings Senior Discount Debentures in accordance with such terms in effect on the date hereofDirectors, provided that such redemption is made with the proceeds of such dividendwhose good faith determination will be conclusive. The Board of Directors may designate any a Restricted Subsidiary to be an Unrestricted Subsidiary if in compliance with Section 4.17 hereof. Upon such designation would not cause a Default or an Event of Default. For purposes of making such determinationdesignation, all outstanding Investments by the Company and its Restricted Subsidiaries (except to the extent repaid in cash) in the Subsidiary so designated will be deemed to be Restricted Payments made at the time of such designation and will reduce the amount available for Restricted Payments under the first paragraph of this covenant. All such outstanding Investments will be deemed to constitute Investments in an amount equal to the 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 designationSection 4.07. Such designation will only be permitted if such Restricted Payment would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. The amount of 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 transferred or issued by the Company or such Restricted 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 Qualified Proceeds. The fair market value of any non-cash Restricted Payment and Qualified Proceeds 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 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 an Officers' Certificate stating that such Restricted Payment is permitted and setting forth the basis upon which the calculations required by Section 4.07 were computed, together with a copy of any fairness opinion or appraisal required by this Indenture.
Appears in 1 contract
million. The foregoing provisions will not prohibit (iA) the payment of any dividend within 60 days after the date of declaration thereof, if at said date of declaration such payment would have complied with the provisions of this Indenture; (iiB) the redemption, repurchase, retirement, defeasance retirement or other acquisition or retirement for value of any subordinated Indebtedness or Equity Interests of the Company or any Guarantor in exchange for, or out of with the net cash proceeds of of, the substantially concurrent sale (other than to a Restricted Subsidiary of the Company) of, of other Equity Interests of the Company (other than any Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such redemption, repurchase, retirement, defeasance or other acquisition shall be excluded from clause (c)(ii) of the preceding paragraph; (iiiC) the defeasance, redemption, repurchase, retirement or other acquisition or retirement for value of Indebtedness that is subordinated Indebtedness or pari passu in right of payment to the Notes in exchange for, or with the net cash proceeds fromof, an incurrence of Permitted Refinancing Indebtedness; a substantially concurrent issuance and sale (iv) the payment of any dividend (or the making of a similar distribution or redemption) by other than to a Restricted Subsidiary of the Company to the holders Company) of its common Equity Interests on a pro rata basisof the Company (other than Disqualified Stock); (vD) so long as no Default or Event of Default shall have occurred and is continuingthe defeasance, the redemption, repurchase, redemption retirement or other acquisition or retirement for value of any Equity Interests Indebtedness that is subordinated or pari passu in right of payment to the CompanyNotes in exchange for, Holdings or any Restricted Subsidiary of with the Companynet cash proceeds of, held by any member of a substantially concurrent issue and sale (other than to the Company's (Company or any of its Restricted Subsidiaries') managementof Refinancing Indebtedness; (E) the repurchase of any Indebtedness subordinated or pari passu in right of payment to the Notes at a purchase price not greater than 101% of the principal amount of such Indebtedness in the event of a Change of Control in accordance with provisions similar to the covenant set forth in Section 4.14 hereof, provided that prior to or 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 consultants pursuant to any management, employee or consultant equity subscription agreement or stock option agreement in effect as directors of the date hereof; Company for repurchases of stock, stock options or other equity interests, provided that the aggregate price paid for amount of all such repurchased, redeemed, acquired or retired Equity Interests shall payments under this clause (H) does not exceed (1) $1.5 million 500,000 in any twelve-month period year and (2) $2.0 million in the aggregate. The Restricted Payments described in clauses (B), (C), (E) and (H) of the immediately preceding paragraph will be Restricted Payments that will be permitted to be taken in accordance with such paragraph but will reduce the amount that would otherwise be available for Restricted Payments under clause (iii) of the first paragraph of this section, and the Restricted Payments described in clauses (A), (D), (F) and (G) of the immediately preceding paragraph will be Restricted Payments that will be permitted to be taken in accordance with such paragraph and will not reduce the amount that would otherwise be available for Restricted Payments under clause (iii) of the first paragraph of this section. If an Investment results in the making of a Restricted Payment, the sum aggregate amount of all Restricted Payments deemed to have been made as calculated under the foregoing provision will be reduced by the amount of any net reduction in such Investment (resulting from the payment of interest or dividends, loan repayment, transfer of assets or otherwise) to the extent such net reduction is not included in the Company's EBITDA; provided, however, that the total amount by which the aggregate amount of all Restricted Payments may be reduced may not exceed the lesser of (A) $7.0 million and (Ba) the aggregate cash proceeds received by the Company from 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 reissuance of Equity Interests by Holdings or calculations under this Indenture, (a) an Investment will include the Company to members of management fair market value of the Company net assets of any Restricted Subsidiary at the time that such Restricted Subsidiary is designated an Unrestricted Subsidiary and its Subsidiaries (provided that will exclude the cash proceeds referred to in this clause (B) shall be excluded from clause (c)(ii) fair market value of the preceding paragraph); net assets of any Unrestricted Subsidiary that is designated as a Restricted Subsidiary, (vib) payments required any property transferred to or from an Unrestricted Subsidiary will be made under valued at fair market value at the Tax Sharing Agreement; (vii) distributions made time of such transfer, provided that, in each case, the fair market value of an asset or property is as determined by the Company on the date hereof, the proceeds Board 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 Directors 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, the declaration and payment of dividends to holders of any class or series of Disqualified Stock of the Company or any Guarantor issued after the date hereof in accordance with Section 4.09; and (x) so long as (A) no Default or Event of Default has occurred and is continuing and (B) immediately before and immediately after giving effect thereto, the 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 date hereof, provided that such interest payments are made with the proceeds of such dividendsgood faith, and (IIc) a $16.0 million cash dividend that subject to the Company shall foregoing, the amount of any Restricted Payment, if other than cash, will 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 determined by the terms Board of the Holdings Senior Discount Debentures in accordance with such terms in effect on the date hereofDirectors, provided that such redemption is made with the proceeds of such dividendwhose good faith determination will be conclusive. The Board of Directors may designate any a Restricted Subsidiary to be an Unrestricted Subsidiary if in compliance with Section 4.17 hereof. Upon such designation would not cause a Default or an Event of Default. For purposes of making such determinationdesignation, all outstanding Investments by the Company and its Restricted Subsidiaries (except to the extent repaid in cash) in the Subsidiary so designated will be deemed to be Restricted Payments made at the time of such designation and will reduce the amount available for Restricted Payments under the first paragraph of this covenant. All such outstanding Investments will be deemed to constitute Investments in an amount equal to the 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 designationSection 4.07. Such designation will only be permitted if such Restricted Payment would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. The amount of 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 transferred or issued by the Company or such Restricted 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 Qualified Proceeds. The fair market value of any non-cash Restricted Payment and Qualified Proceeds 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 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 an Officers' Certificate stating that such Restricted Payment is permitted and setting forth the basis upon which the calculations required by Section 4.07 were computed, together with a copy of any fairness opinion or appraisal required by this Indenture.
Appears in 1 contract
Samples: Indenture (Iron Mountain Inc /De)
