Restricted Payments. Neither the Company nor any of its Subsidiaries or Affiliates shall make any Restricted Payment or set aside any funds therefor unless, after giving effect thereto, the aggregate of such Restricted Payments for all such purposes subsequent to the Closing Date would not exceed the sum (as in effect from time to time, hereinafter referred to as the "Distribution Fund") of (i) 50% of the Company's Cumulative Combined Net Income subsequent to December 31, 1991 so long as the Company's Combined Tangible Net Worth is greater than $31,051,000, (ii) the aggregate of the net cash proceeds received by the Company from any issuance or sale of capital shares of the Company subsequent to the Closing Date, and (iii) the aggregate of the net cash proceeds received by the Company from any issuance of any Indebtedness of the Company which has been converted into capital shares of the Company subsequent to the Closing Date, which amount shall be added to the Distribution Fund only after such conversion. Notwithstanding the foregoing, the Company may acquire its own capital shares for an aggregate amount from and after the Closing date equal to the greater of (x) the sum of (i) 25% of the Cumulative Combined Net Income of the Company subsequent to December 31, 1991, plus (ii) $500,000, or (y) the amount then available under the Distribution Fund, which amount shall be charged to the Distribution Fund. No Restricted Payment may be made in other than cash or securities which are actively traded on a nationally recognized public market and have a readily ascertainable market value (which value shall be the amount of such Restricted Payment), unless the Company shall have received a report from an independent recognized appraiser as to the fair value of the property to be distributed or transferred, in which case the amount of such Restricted Payment shall be deemed to be the greater of its fair value (as determined by such appraiser) or its net book value on the books of the Company. Notwithstanding any of the foregoing provisions of this paragraph, neither the Company nor any Subsidiary or Affiliate shall make any Restricted Payment if at the time or after giving effect thereto, there shall exist any Default.
Appears in 3 contracts
Sources: Loan Agreement (NPR Inc), Loan Agreement (Sjit Inc), Loan Agreement (Sjit Inc)
Restricted Payments. Neither the The Company nor shall not, and shall not permit any of its Restricted Subsidiaries to, directly or Affiliates shall indirectly, (i) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or any of its Restricted Subsidiaries (other than any such Equity Interests owned by the Company or any of its Restricted Subsidiaries); (ii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value, any Indebtedness that is subordinated in right of payment to the Notes or the Subsidiary Guarantees, as the case may be, except a payment of interest or principal at Stated Maturity; or (iii) make any Restricted Payment or Investment (all such payments and other actions set aside any funds therefor forth in clauses (i) through (iii) above being collectively referred to as “Restricted Payments”), unless, at the time of and after giving effect theretoto such Restricted Payment:
(a) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof;
(b) the Company would, at the aggregate time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Coverage Ratio test set forth in Section 4.09 hereof; and
(c) such Restricted Payment, together with (x) the aggregate amount of all other Restricted Payments for made by the Company and its Restricted Subsidiaries after the Issue Date (excluding Restricted Payments permitted by clauses (b) through (e) and, to the extent deducted in computing Consolidated Net Income, (f) and (g) of the next succeeding paragraph), and (y) the aggregate amount of all such purposes dividends and other payments or distributions paid subsequent to the Closing Issue Date would on account of the Company’s or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any such payment in connection with any merger or consolidation involving the Company) or to the direct or indirect holders of the Company’s Equity Interests in their capacity as such (other than (i) dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company, (ii) dividends or distributions payable to the Company or any of its Restricted Subsidiaries or (iii) if the Restricted Subsidiary making such dividend is not exceed a Wholly Owned Restricted Subsidiary, dividends to its shareholders on a pro rata basis), is less than the sum (as in effect from time to time, hereinafter referred to as the "Distribution Fund"without duplication) of the following: (iA) 50% of the Company's Cumulative Combined cumulative Consolidated Net Income subsequent of the Company for the period (taken as one accounting period) from the first day of first fiscal quarter following the Issue Date to December 31, 1991 so long as the end of the Company's Combined Tangible ’s most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Worth Income for such period is greater than $31,051,000a deficit, less 100% of such deficit), plus (iiB) 100% of the aggregate of (1) the aggregate net cash proceeds and (2) the fair market value of Strategic Assets transferred or conveyed to the Company (as valued at the time of transfer or conveyance to the Company, and as determined in the manner contemplated by the definition of the term “fair market value”), in each case received by the Company since the Issue Date as a contribution to its common equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified Stock) or from the issuance or sale of Disqualified Stock or debt securities of the Company that have been converted into, or exchanged or redeemed for, such Equity Interests (other than any such Equity Interests, Disqualified Stock or convertible debt securities sold to a Restricted Subsidiary of the Company and other than Disqualified Stock or convertible debt securities that have been converted into, or exchanged or redeemed for, Disqualified Stock), plus (C) to the extent that any Restricted Investment that was made after the Issue Date is sold for cash or otherwise liquidated or repaid for cash, the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any) plus (D) if any Unrestricted Subsidiary is redesignated as a Restricted Subsidiary, the lesser of (1) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Subsidiary as of the date of redesignation and (2) the amount of such Investments. The foregoing provisions will not prohibit any of the following:
(a) 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;
(b) the redemption, repurchase, retirement, defeasance or other acquisition of any subordinated Indebtedness of the Company or any Guarantor or any Equity Interests of the Company or any of its Restricted Subsidiaries in exchange for, or out of the net cash proceeds received by of the Company from any issuance or substantially concurrent sale (other than to a Restricted Subsidiary of capital shares the Company) of, other Equity Interests of the Company subsequent to (other than any Disqualified Stock); provided that the Closing Dateamount of any such net cash proceeds that are utilized for any such redemption, and purchase, retirement, defeasance or other acquisition shall be excluded from clause (iiic)(B) of the preceding paragraph;
(c) the aggregate defeasance, redemption, purchase, retirement or other acquisition of subordinated Indebtedness of the Company or any Guarantor with the net cash proceeds received from an incurrence of, or in exchange for, Permitted Refinancing Indebtedness;
(d) the payment of any dividend or distribution by a Restricted Subsidiary of the Company to the Company or any of its Restricted Subsidiaries;
(e) 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 stock options;
(f) so long as no Default has occurred and is continuing, the repurchase or other acquisition for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company for allocation (as a free allocation or otherwise) to directors, officers and employees of the Company and its Restricted Subsidiaries not in excess of $2,500,000 in any twelve-month period;
(g) so long as no Default has occurred and is continuing, the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company held by any member of the Company’s (or any of its Restricted Subsidiaries’) management pursuant to any management equity subscription agreement or stock option agreement in effect as of the Issue Date; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall not exceed €1,000,000 in any twelve-month period; provided, further, that such agreement or such repurchase, redemption or other acquisition or retirement or the agreement are approved by a majority of the disinterested members of the Board of Directors;
(h) loans or advances in the ordinary course of business to Affiliates or Persons with which the Company or a Subsidiary may have contractual arrangements in any jurisdiction to the extent such loans or advances are reasonably necessary to be made in connection with conducting the business of the Company or a Subsidiary in such jurisdiction and in a form that is customary to address foreign investment regulation or practice in such jurisdiction, in an aggregate amount not to exceed $7,500,000 outstanding at any one time;
(i) so long as no Default has occurred and is continuing, advances constituting Investment or loans to directors, officers and employees of the Company and its Restricted Subsidiaries in the ordinary course of business for bona fide business purposes not in excess of €1,000,000 at any one time outstanding in the aggregate;
(j) other Restricted Payments not to exceed $15,000,000 in the aggregate; and
(k) Investments in connection with the Permitted Closing Steps. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default (except at any time during which the Company maintains Investment Grade Status). For purposes of making such designation, all outstanding Investments by the Company from any issuance of any Indebtedness of and its Restricted Subsidiaries in the Company which has been converted into capital shares of the Company subsequent to the Closing Date, which amount shall be added to the Distribution Fund only after such conversion. Notwithstanding the foregoing, the Company may acquire its own capital shares for an aggregate amount from and after the Closing date equal to the greater of (x) the sum of (i) 25% of the Cumulative Combined Net Income of the Company subsequent to December 31, 1991, plus (ii) $500,000, or (y) the amount then available under the Distribution Fund, which amount shall be charged to the Distribution Fund. No Restricted Payment may be made in other than cash or securities which are actively traded on a nationally recognized public market and have a readily ascertainable market value (which value shall be the amount of such Restricted Payment), unless the Company shall have received a report from an independent recognized appraiser as to the fair value of the property to be distributed or transferred, in which case the amount of such Restricted Payment Subsidiary so designated shall be deemed to be Restricted Payments at the greater time of its such designation, in an amount equal to the fair market value (as determined by of such appraiser) or its net book value on Investments at the books time of such designation. Such designation shall only be permitted if such Restricted Payments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of “Unrestricted Subsidiary.” The Board of Directors may also redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if such redesignation complies with the requirements described in the definition of “Unrestricted Subsidiary.” If the aggregate amount of all Restricted Payments calculated for purposes of the Company. Notwithstanding any first paragraph of this Section 4.07 includes an Investment in an Unrestricted Subsidiary that subsequently becomes a Restricted Subsidiary pursuant to the foregoing provisions terms of this paragraph, neither then the aggregate amount of such Restricted Payments shall be reduced by the lesser of (a) an amount equal to the fair market value of the Investments previously made by the Company nor any and its Restricted Subsidiaries in such Unrestricted Subsidiary or Affiliate shall make any Restricted Payment if at the time it becomes a Restricted Subsidiary and (b) the amount of such Investments. Any designation or after redesignation of a Subsidiary shall be evidenced to the Trustee by filing with the Trustee a Board Resolution giving effect theretoto such action and evidencing the valuation of any Investment relating thereto (as determined in good faith by the Board of Directors) and an Officers’ Certificate certifying that such action complied with the terms of the definition of “Unrestricted Subsidiary” set forth in this Indenture (in the case of a designation) 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, there as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall exist any Defaultbe 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.
Appears in 3 contracts
Sources: Indenture (CGG), Indenture (CGG Marine B.V.), Indenture (CGG Marine B.V.)
Restricted Payments. Neither the Company The Borrower will not, nor will it permit any of its Subsidiaries Subsidiary to, directly or Affiliates shall indirectly, declare, order, make or set apart any sum for or pay any Restricted Payment Payment, except (a) to make dividends payable solely in the same class of capital stock of such Person, (b) to make dividends or set aside any funds therefor unlessother distributions payable to the Borrower (directly or indirectly through Subsidiaries) and ratably to minority shareholders or to make dividends or other distributions payable to a Subsidiary by another Subsidiary, (c) the Specified Share Repurchase; provided that both prior, and after giving effect theretoto, the aggregate of such Restricted Payments for all such purposes subsequent to the Closing Date would not exceed the sum (as in effect from time to time, hereinafter referred to as the "Distribution Fund") of Specified Share Repurchase (i) 50% no Default or Event of the Company's Cumulative Combined Net Income subsequent to December 31, 1991 so long as the Company's Combined Tangible Net Worth is greater than $31,051,000Default shall have occurred and be continuing, (ii) the aggregate Consolidated Leverage Ratio shall be less than or equal to 2.0 to 1.0 (to be calculated to give pro forma effect to any repayments of the net cash proceeds received by the Company from any issuance Funded Indebtedness occurring on or sale of capital shares of the Company subsequent prior to the Closing Date, relevant date of determination) and (iii) the Borrower shall have unutilized Commitments under this Credit Agreement in an amount not less than $250,000,000, and (d) other Restricted Payments if no Default has occurred and is continuing or would result from such action; provided that during any period in which a Ratings Downgrade has occurred and is continuing, the aggregate amount of all such Restricted Payments pursuant to this clause (d) shall not exceed $75,000,000 for any consecutive four quarter period, beginning with the first fiscal quarter following such Ratings Downgrade; it being understood however that this proviso does not in any way limit (i) Restricted Payments permitted by clauses (a), (b) and (c) hereof, (ii) other Restricted Payments, to the extent such Restricted Payments are in an amount equal to the sum of the net cash proceeds received by the Company Borrower from any issuance the exercise of any Indebtedness stock options held by employees, management or directors of the Company which has been converted into capital shares Borrower, plus any tax benefit to the Borrower related to such exercise or (iii) the redemption, retirement, or repurchase of the Company subsequent to the Closing Date, which amount shall be added to the Distribution Fund only after such conversion. Notwithstanding the foregoing, the Company may acquire its own capital shares for an aggregate amount from and after the Closing date equal to the greater of (x) the sum of (i) 25% of the Cumulative Combined Net Income of the Company subsequent to December 31, 1991, plus (ii) $500,000, or (y) the amount then available under the Distribution Fund, which amount shall be charged to the Distribution Fund. No Restricted Payment may be made in other than cash or securities which are actively traded on a nationally recognized public market and have a readily ascertainable market value (which value shall be the amount of such Restricted Payment), unless the Company shall have received a report from an independent recognized appraiser as to the fair value of the property to be distributed or transferred, in which case the amount of such Restricted Payment shall be deemed to be the greater of its fair value (as determined by such appraiser) or its net book value on the books of the Company. Notwithstanding any of the foregoing provisions of this paragraph, neither the Company nor any Subsidiary or Affiliate shall make any Restricted Payment if at the time or after giving effect thereto, there shall exist any Defaultconvertible Indebtedness.
Appears in 2 contracts
Sources: Credit Agreement (Health Net Inc), Credit Agreement (Health Net Inc)
Restricted Payments. Neither Declare or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, or issue or sell any Equity Interests or accept any capital contributions, except that, so long as no Default or Event of Default (other than in respect of Restricted Payments made pursuant to paragraphs (a), (b) and (d) of this Section, which shall not be subject to the Company nor requirement that no Default or Event of Default be then continuing) shall have occurred and be continuing at the time of any action described below or would result therefrom:
(a) each Subsidiary may make Restricted Payments to the Borrower or any Guarantor (other than Holdings);
(b) the Borrower and each Subsidiary may declare and make dividend payments or other distributions payable solely in the common stock or other common Equity Interests of such Person;
(c) payments to Holdings to permit Holdings, and the substantially concurrent use of such payments by Holdings, to repurchase or redeem (or to make distributions to any direct or indirect parent of Holdings to repurchase or redeem) Qualified Capital Stock of Holdings, or the direct or indirect parents of Holdings, in each case held by current, future or former officers, directors members of management, consultants or employees (or their respective heirs, family members, spouses, domestic partners, former spouses, former domestic partners or estates) of any Loan Party; provided that the aggregate amount of payments to Holdings shall not exceed, in any period of twelve (12) consecutive months, $500,000 and, in the aggregate during the term of this Agreement, $1,000,000; provided, further that that the amount of any payment permitted pursuant to this Section 7.06(c) shall be reduced dollar-for-dollar by the amount of any Indebtedness incurred pursuant to Section 7.02(s);
(i) to the extent actually used substantially concurrently by Holdings to pay (or to make distributions to any direct or indirect parent of Holdings to pay) such taxes, costs and expenses, payments by the Borrower to or on behalf of Holdings in an amount sufficient to pay franchise taxes and other fees required to maintain the legal existence of Holdings, (ii) payments by the Borrower to or on behalf of Holdings in an amount sufficient to pay out-of-pocket legal, accounting and filing costs and other expenses in the nature of overhead in the ordinary course of business of Holdings, in the case of preceding clauses (i) and (ii) in an aggregate amount not to exceed $1,000,000 in any period of twelve (12) consecutive months, (iii) distributions to Holdings to pay (or to make distributions to any direct or indirect parent of Holdings to pay) operating expenses in the ordinary course and other corporate overhead (in each case, to the extent attributable to the assets, income or activities of the Borrower and its Subsidiaries) and (iv) distributions to Holdings (or to make distributions to any direct or indirect parent of Holdings to pay) to pay expenses of debt or equity offerings, provided that, as to clauses (iii) and (iv), that the aggregate amount of payments under clauses (iii) and (iv) shall not exceed $2,500,000;
(e) Permitted Tax Distributions by the Borrower to Holdings (or the direct or indirect holders of the Equity Interests of Holdings), so long as (i) Holdings (or the direct or indirect holders of the Equity Interests of Holdings) uses such distributions substantially concurrently to pay its Taxes, (ii) such Taxes are attributable to the assets, income or activities of the Borrower and its Subsidiaries and (iii) any refunds related to any such Permitted Tax Distribution received by Holdings (or Affiliates the direct or indirect holders of the Equity Interests of Holdings) shall make promptly be returned by Holdings to the Borrower;
(f) Restricted Payments in an aggregate amount outstanding not to exceed the Cumulative Credit Availability as of the time such Restricted Payments were made; provided that no such payments will be permitted under this Section 7.06(f) unless at the time that any such Restricted Payment or set aside any funds therefor unless, is made (and immediately after giving effect thereto), (i) Holdings shall be in compliance, on a Pro Forma Basis, with a Consolidated Total Lease Adjusted Leverage Ratio of not more than 4.50:1.00, for the aggregate most recent Measurement Period for which financial statements are available, and (ii) prior to the payment or making of such Restricted Payments for all such purposes subsequent Payments, Holdings or the Borrower shall have delivered to the Closing Date would not exceed Administrative Agent a certificate executed by the sum chief financial officer, demonstrating in reasonable detail (as in effect from time including all applicable calculations) (1) (x) the amount of Cumulative Credit Availability immediately prior to timesuch Restricted Payment and the amount thereof to be so applied, hereinafter referred and (y) permitted pursuant to as this Section 7.06(f), and (2) the "Distribution Fund"Consolidated Total Lease Adjusted Leverage Ratio required pursuant to the preceding clause (i);
(g) of after an IPO, (i) 50% any Restricted Payment by the Borrower or any other direct or indirect parent of the Company's Cumulative Combined Net Income subsequent Borrower to December 31, 1991 pay listing fees and other costs and expenses attributable to being a publicly traded company and (ii) Restricted Payments of up to 6.0% per annum of the net proceeds received by (or contributed to) Holdings and its Subsidiaries from such IPO; and
(h) Repurchases of Equity Interests from employees deemed to occur upon the exercise of stock options or warrants by the applicable employee if such Equity Interests represent a portion of the exercise price of tax withholding obligation of such options or warrants and approved by the Board of Directors so long as the Company's Combined Tangible Net Worth is greater than $31,051,000, (ii) the aggregate exercise of the net cash proceeds received by the Company from any issuance such stock option or sale warrant would not give rise to a Change of capital shares of the Company subsequent to the Closing Date, and (iii) the aggregate of the net cash proceeds received by the Company from any issuance of any Indebtedness of the Company which has been converted into capital shares of the Company subsequent to the Closing Date, which amount shall be added to the Distribution Fund only after such conversion. Notwithstanding the foregoing, the Company may acquire its own capital shares for an aggregate amount from and after the Closing date equal to the greater of (x) the sum of Control; and
(i) 25% of the Cumulative Combined Net Income of Specified Dividend on or within seven (7) days after the Company subsequent to December 31, 1991, plus (ii) $500,000, or (y) the amount then available under the Distribution Fund, which amount shall be charged to the Distribution FundAmendment No. No Restricted Payment may be made in other than cash or securities which are actively traded on a nationally recognized public market and have a readily ascertainable market value (which value shall be the amount of such Restricted Payment), unless the Company shall have received a report from an independent recognized appraiser as to the fair value of the property to be distributed or transferred, in which case the amount of such Restricted Payment shall be deemed to be the greater of its fair value (as determined by such appraiser) or its net book value on the books of the Company. Notwithstanding any of the foregoing provisions of this paragraph, neither the Company nor any Subsidiary or Affiliate shall make any Restricted Payment if at the time or after giving effect thereto, there shall exist any Default.1 Effective Date;
Appears in 2 contracts
Sources: Credit Agreement (Bojangles', Inc.), Credit Agreement (Bojangles', Inc.)
Restricted Payments. Neither (a) The Company will not declare, pay or make any dividend or distribution (in cash, property or obligations) on any shares of capital stock (now or hereafter outstanding) of the Company nor Company, or on any warrants, options or other rights with respect to any class of capital stock (now or hereafter outstanding) of the Company, or apply or permit any Subsidiary to apply, any of its Subsidiaries funds, property or Affiliates shall make assets to the purchase, redemption, sinking fund, or other retirement of, or agree, or permit any Restricted Payment Subsidiary of the Company to agree, to purchase or redeem (or set aside funds to purchase or redeem) any funds therefor unlessshares of any class of capital stock (now or hereafter outstanding) of the Company, or warrants, options or other rights with respect to any class of capital stock (now or hereafter outstanding) of the Company (all or any of the foregoing, "RESTRICTED PAYMENTS"); PROVIDED, HOWEVER, that so long as the Company remains qualified as a REIT under the Code, the Company may make Restricted Payments if and to the extent (but only to the extent) that: (i) no Default or Event of Default shall have occurred and be continuing at the time of declaration of such Restricted Payment, and (ii) immediately after giving effect thereto, to the aggregate making of such Restricted Payment, the sum of all Restricted Payments for all such purposes made subsequent to the Closing Date December 31, 1995 would not exceed the sum (as in effect from time to time, hereinafter referred to as the "Distribution Fund") of (i1) 50$10,000,000, (2) 100% of the Company's Cumulative Combined Net Income Cash Flow accumulated subsequent to December 31, 1991 so long 1995, and (3) the net proceeds to the Company since December 31, 1995 from the issuance of any shares of its capital stock or any warrants, options or other rights with respect thereto; PROVIDED FURTHER that the Company may make a Restricted Payment if a Default (but not an Event of Default) shall have occurred and be continuing if such Restricted Payment was declared but not yet paid prior to the occurrence of such Default and the making of such Restricted Payment would be permitted under clause (ii) of this Section 5.16(a).
(b) The provisions of Section 5.16(a) to the contrary notwithstanding, the Company may declare and make a Restricted Payment if a Default or Event of Default shall have occurred and be continuing at the time that such Restricted Payment was declared, if (i) the declaration and payment of such Restricted Payment is required in order for the Company to continue to qualify as a REIT under the Company's Combined Tangible Net Worth is greater than $31,051,000Code, and (ii) the aggregate Default or Event of Default existing at the net cash proceeds received by time of such declaration did not result from (1) a breach of this Section 5.16, (2) a failure to make any payment or prepayment of principal or interest on the Company from any issuance or sale of capital shares of Notes (including failure to pay the Company subsequent Make-Whole Premium pursuant to the Closing DateSection 2, and (iii) the aggregate of the net cash proceeds received by the Company from any issuance of any Indebtedness of the Company which has been converted into capital shares of the Company subsequent to the Closing Date, which amount shall be added to the Distribution Fund only after such conversion. Notwithstanding the foregoing, the Company may acquire its own capital shares for an aggregate amount from and after the Closing date equal to the greater of (x) the sum of (i) 25% of the Cumulative Combined Net Income of the Company subsequent to December 31, 1991, plus (ii) $500,000when due), or (y3) the amount then available under the Distribution Fund, which amount shall be charged to the Distribution Fund. No Restricted Payment may be made occurrence of any event specified in other than cash or securities which are actively traded on a nationally recognized public market and have a readily ascertainable market value (which value shall be the amount of such Restricted Payment), unless the Company shall have received a report from an independent recognized appraiser as to the fair value of the property to be distributed or transferred, in which case the amount of such Restricted Payment shall be deemed to be the greater of its fair value (as determined by such appraiserSection 6.1(a) or its net book value on the books of the Company. Notwithstanding any of the foregoing provisions of this paragraph, neither the Company nor any Subsidiary or Affiliate shall make any Restricted Payment if at the time or after giving effect thereto, there shall exist any Default(g).
Appears in 2 contracts
Sources: Note Purchase Agreement (Health Care Reit Inc /De/), Note Purchase Agreement (Health Care Reit Inc /De/)
Restricted Payments. Neither Declare or pay any dividend (other than dividends payable solely in common stock of the Person making such dividend) on, or make any payment on account of, or set apart assets for a sinking or other analogous fund for, the purchase, redemption, defeasance, retirement or other acquisition of, any of its Capital Stock, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations (collectively, “Restricted Payments”), except that:
(a) any Subsidiary may make Restricted Payments to the Company nor or any other Subsidiary;
(b) the Company and any of its Subsidiaries may make repurchases of its Capital Stock deemed to occur upon the exercise of stock options or Affiliates shall make any Restricted Payment the vesting or set aside any funds therefor unless, after giving effect thereto, settlement of other equity or equity-based awards if such Capital Stock represents all or part of the aggregate exercise price of such Restricted Payments for options or represents any income or employment tax withholding associated therewith; and
(c) (1) at all such purposes subsequent to times that the Closing Date Leverage Adjustment Period is in effect, so long as no Default or Event of Default has occurred and is continuing at the time of declaration or would not exceed the sum (as in effect from time to timeresult therefrom, hereinafter referred to as the "Distribution Fund") of (i) 50% the Company may declare and pay its regularly scheduled cash dividends to the holders of its common stock in an aggregate amount not to exceed $225,000,000 for each fiscal year (less the Company's Cumulative Combined Net Income subsequent to December 31, 1991 so long as the Company's Combined Tangible Net Worth is greater than $31,051,000, amount of any investments made during such fiscal year in reliance on Section 6.04(o)(ii)) and (ii) the aggregate of the net cash proceeds received by the Company from any issuance or sale of capital shares of the Company subsequent in addition to the Closing Date, and (iii) the aggregate of the net cash proceeds received by the Company from any issuance of any Indebtedness of the Company which has been converted into capital shares of the Company subsequent to the Closing Date, which amount shall be added to the Distribution Fund only after such conversion. Notwithstanding the foregoing, the Company and any of its Subsidiaries may acquire its own capital shares for make further Restricted Payments at all other times in an aggregate amount from and after the Closing date equal not to the greater of (x) the sum of (i) 25% of the Cumulative Combined Net Income of the Company subsequent to December 31, 1991, plus (ii) exceed $500,000, or (y) the amount then available under the Distribution Fund, which amount shall be charged to the Distribution Fund. No Restricted Payment may be made in other than cash or securities which are actively traded on a nationally recognized public market and have a readily ascertainable market value (which value shall be the amount of such Restricted Payment), unless the Company shall have received a report from an independent recognized appraiser as to the fair value of the property to be distributed or transferred, in which case the amount of such Restricted Payment shall be deemed to be the greater of its fair value (as determined by such appraiser) or its net book value on the books of the Company. Notwithstanding any of the foregoing provisions of this paragraph, neither the Company nor any Subsidiary or Affiliate shall make any Restricted Payment if at the time or after giving effect thereto, there shall exist any Default.25,000,000; or
Appears in 2 contracts
Sources: Credit Agreement (Scotts Miracle-Gro Co), Credit Agreement (Scotts Miracle-Gro Co)
Restricted Payments. Neither the (a) The Company nor will not, and will not permit any of its Restricted Subsidiaries to, directly or Affiliates shall indirectly:
(1) declare or pay any dividend or make any other payment or distribution on account of the Company's or any of its Restricted Subsidiaries' Equity Interests or to the direct or indirect holders of the Company's or any of its Restricted Subsidiaries' Equity Interests in their capacity as such (other than dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company or payable to the Company or a Restricted Subsidiary of the Company);
(2) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or any direct or indirect parent of the Company;
(3) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness that is subordinated to the Notes or the Subsidiary Guarantees, except a payment of interest or principal at the Stated Maturity thereof; or
(4) make any Restricted Payment or Investment (all such payments and other actions set aside any funds therefor forth in these clauses (1) through (4) above being collectively referred to as "Restricted Payments"), unless, at the time of and after giving effect thereto, the aggregate to such Restricted Payment:
(1) no Default or Event of Default has occurred and is continuing or would occur as a consequence of such Restricted Payments for all Payment;
(2) the Company would, at the time of such purposes subsequent Restricted Payment and after giving pro forma effect thereto, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Closing Date would not exceed Fixed Charge Coverage Ratio test set forth in Section 3.3(a) above; and
(3) such Restricted Payment, together with the sum aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after the date of this Indenture (as in effect from time to timeexcluding Restricted Payments permitted by clauses (2), hereinafter referred to as the "Distribution Fund"(3), (6), (7) and (9) of Section 3.4(b) below), is less than the sum, without duplication, of:
(ia) 50% of the Company's Cumulative Combined Consolidated Net Income subsequent of the Company for the period (taken as one accounting period) from the beginning of the fiscal quarter commencing October 1, 2004 to December 31, 1991 so long as the end of the Company's Combined Tangible most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Worth Income for such period is greater than $31,051,000a deficit, less 100% of such deficit); plus
(iib) 100% of the aggregate of the net cash proceeds Net Cash Proceeds received by the Company (including the fair market value of any Additional Assets to the extent acquired in consideration of Equity Interests of the Company (other than Disqualified Stock)) since the date of this Indenture as a contribution to its common equity capital or from any the issue or sale of Equity Interests of the Company (other than Disqualified Stock) (other than Net Cash Proceeds received from an issuance or sale of capital shares such Capital Stock to a Subsidiary of the Company or an employee stock ownership plan, option plan or similar trust to the extent such sale to an employee stock ownership plan, option plan or similar trust is financed by loans from or Guaranteed by the Company or any Restricted Subsidiary unless such loans have been repaid with cash on or prior to the date of determination); plus
(c) the amount by which Indebtedness of the Company is reduced on the Company's balance sheet upon the conversion or exchange (other than by a Subsidiary of the Company) subsequent to the Closing Date, and (iii) the aggregate of the net cash proceeds received by the Company from any issuance Issue Date of any Indebtedness of the Company which has been converted into capital shares convertible or exchangeable for Capital Stock (other than Disqualified Stock) of the Company subsequent (less the amount of any cash, or other property, distributed by the Company upon such conversion or exchange); plus
(d) the amount equal to the Closing Datenet reduction in Restricted Investments made by the Company or any of its Restricted Subsidiaries in any Person resulting from:
(i) repurchases or redemptions of such Restricted Investments by such Person, proceeds realized upon the sale of such Restricted Investment to a purchaser other than the Company or a Subsidiary, repayments of loans or advances or other transfers of assets (including by way of dividend or distribution) by such Person to the Company or any Restricted Subsidiary of the Company; or
(ii) the redesignation of Unrestricted Subsidiaries as Restricted Subsidiaries (valued in each case as provided in the definition of "Investment") not to exceed, in the case of any Unrestricted Subsidiary, the amount of Investments previously made by the Company or any Restricted Subsidiary in such Unrestricted Subsidiary, which amount shall in each case under this clause (d) was included in the calculation of the amount of Restricted Payments; provided, however, that no amount will be added included under this clause (d) to the Distribution Fund only extent it is already included in Consolidated Net Income.
(b) So long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the preceding provisions will not prohibit:
(1) the payment of any dividend within 60 days after the date of declaration of the dividend, if at the date of declaration the dividend payment would have complied with the provisions of this Indenture;
(2) the redemption, repurchase, retirement, defeasance or other acquisition of any Subordinate Obligations 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 (other than to a Subsidiary of the Company) of, Equity Interests of the Company (other than Disqualified Stock and other than Capital Stock issued or sold to a Subsidiary or an employee stock ownership plan or similar trust to the extent such conversion. Notwithstanding sale to an employee stock ownership plan or similar trust is financed by loans from or Guaranteed by the foregoingCompany or any Restricted Subsidiary unless such loans have been repaid with cash on or prior to the date of determination); provided, however, that (a) such purchase or redemption will be excluded in subsequent calculations of the amount of Restricted Payments and (b) the Net Cash Proceeds from such sale will be excluded from clause (3)(b) of Section 3.4(a);
(3) any defeasance, retirement, purchase, redemption or other acquisition of Subordinated Obligations of the Company or any Guarantor, as the case may be, made by exchange for, or out of the proceeds of the substantially concurrent sale (other than to a Restricted Subsidiary of the Company) of, Subordinated Obligations of the Company or any Subsidiary Guarantor, as the case may be, that qualify as Permitted Refinancing Indebtedness, provided that the obligors on such new Subordinated Obligations shall not include obligors that were not obligors on the Subordinated Obligations being defeased, retired, repurchased, redeemed or acquired; provided, however, that such defeasance, retirement, purchase, redemption or acquisition will be excluded in subsequent calculations of the amount of Restricted Payments;
(4) in the event of a Change of Control, and if no Default shall have occurred and be continuing, the payment, purchase, redemption, defeasance or other acquisition or retirement of Subordinated Obligations of the Company or any Guarantor, in each case, at a purchase price not greater than 101% of the principal amount of such Subordinated Obligations, plus any accrued and unpaid interest therein; provided, however, that prior to such payment, purchase, redemption, defeasance or other acquisition or retirement, the Company (or a third party to the extent permitted by the Indenture) has made a Change of Control Offer with respect to the Notes as a result of such Change of Control and has repurchased all Notes validly tendered and not withdrawn in connection with such Change of Control Offer; provided further, however, that such repurchase and other acquisitions shall be included in the calculation of the amount of Restricted Payments;
(5) in the event of an Asset Sale that requires the Company to offer to repurchase Notes pursuant to the covenant described under Section 3.7 hereof, and if no Default shall have occurred and be continuing, the payment, purchase, redemption, defeasance or other acquisition or retirement of Subordinated Obligations of the Company or any Subsidiary Guarantor, in each case, at a purchase price not greater than 100% of the principal amount (or, if such Subordinated Obligations were issued with original issue discount, 100% of the accreted value) of such Subordinated Obligations, plus any accrued and unpaid interest thereon; provided, however, that (A) prior to such payment, purchase, redemption, defeasance or other acquisition or retirement, the Company has made an Asset Sale Offer with respect to the Notes pursuant to the provisions of the covenant described under Section 3.7 hereof; provided further, however, that such repurchases and other acquisitions shall be included in the calculation of the amount of Restricted Payments);
(6) the payment of any dividend by a Restricted Subsidiary of the Company to the holders of its Equity Interests on a pro rata basis;
(7) the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company held by any current or former director or employee of the Company or any of its Restricted Subsidiaries pursuant to any director or employee equity subscription agreement or plan, stock option agreement or similar agreement or plan; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may acquire not exceed $1,000,000 in any twelve-month period; provided, that such payments will be excluded from any subsequent calculation of the amounts of Restricted Payments; provided further that such amount in any twelve-month period may be increased in an amount not to exceed (a) the cash proceeds from the issue or sale of Equity Interests (other than Disqualified Stock) to any such officers, directors, employees or consultants that occurs after the Issue Date to the extent proceeds from the issue or sale of such Equity Interests have not otherwise been applied to make Restricted Payments plus (b) the cash proceeds of key man life insurance received by the Company or its own capital Restricted Subsidiaries after the Issue Date;
(8) the acquisition of Equity Interests by the Company in connection with the exercise of stock options or stock appreciation rights by way of cashless exercise;
(9) payments made in connection with the consummation of the Transactions on substantially the terms described in the Offering Memorandum;
(10) the payment of cash in lieu of fractional shares for of Capital Stock in connection with any transaction otherwise permitted under this covenant; and
(11) other Restricted Payments in an aggregate amount from and after since the Closing date equal of this Indenture not to exceed $10,000,000.
(c) The amount of all Restricted Payments (other than cash) will be the fair market value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to the greater Restricted Payment. The fair market value of any assets or securities that are required to be valued by this covenant will be determined by the Board of Directors, whose determination shall be evidenced by a Board Resolution. The Board of Directors' determination must be based upon an opinion or appraisal issued by an accounting, appraisal or investment banking firm of national standing if the fair market value exceeds $10,000,000. Not later than the date of making any Restricted Payment (xexcluding any Restricted Payment described in the preceding clause (2), (3), (4), (5), (7), (8) or (11) of Section 3.4(b) above) the sum of (i) 25% of the Cumulative Combined Net Income of the Company subsequent to December 31, 1991, plus (ii) $500,000, or (y) the amount then available under the Distribution Fund, which amount shall be charged will deliver to the Distribution Fund. No Restricted Payment may be made in other than cash or securities which are actively traded on a nationally recognized public market and have a readily ascertainable market value (which value shall be the amount of such Restricted Payment), unless the Company shall have received a report from Trustee an independent recognized appraiser as to the fair value of the property to be distributed or transferred, in which case the amount of Officers' Certificate stating that such Restricted Payment shall be deemed to be is permitted and setting forth the greater basis upon which the calculations required by this "Restricted Payments" covenant were computed, together with a copy of its fair value (as determined any fairness opinion or appraisal required by such appraiser) or its net book value on the books of the Company. Notwithstanding any of the foregoing provisions of this paragraph, neither the Company nor any Subsidiary or Affiliate shall make any Restricted Payment if at the time or after giving effect thereto, there shall exist any DefaultIndenture.
Appears in 2 contracts
Restricted Payments. Neither Declare or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, or issue or sell any Equity Interests or accept any capital contributions, except that, so long as no Default or Event of Default (other than in respect of Restricted Payments made pursuant to paragraphs (a), (b) and (d) of this Section, which shall not be subject to the Company nor requirement that no Default or Event of Default be then continuing) shall have occurred and be continuing at the time of any action described below or would result therefrom:
(a) each Subsidiary may make Restricted Payments to the Borrower or any Guarantor (other than Holdings);
(b) the Borrower and each Subsidiary may declare and make dividend payments or other distributions payable solely in the common stock or other common Equity Interests of such Person;
(c) payments to Holdings to permit Holdings, and the substantially concurrent use of such payments by Holdings, to repurchase or redeem (or to make distributions to any direct or indirect parent of Holdings to repurchase or redeem) Qualified Capital Stock of Holdings, or the direct or indirect parents of Holdings, in each case held by current, future or former officers, directors members of management, consultants or employees (or their respective heirs, family members, spouses, domestic partners, former spouses, former domestic partners or estates) of any Loan Party; provided that the aggregate amount of payments to Holdings shall not exceed, in any period of twelve (12) consecutive months, $500,000 and, in the aggregate during the term of this Agreement, $1,000,000; provided, further that that the amount of any payment permitted pursuant to this Section 7.06(c) shall be reduced dollar-for-dollar by the amount of any Indebtedness incurred pursuant to Section 7.02(s);
(i) to the extent actually used substantially concurrently by Holdings to pay (or to make distributions to any direct or indirect parent of Holdings to pay) such taxes, costs and expenses, payments by the Borrower to or on behalf of Holdings in an amount sufficient to pay franchise taxes and other fees required to maintain the legal existence of Holdings, (ii) payments by the Borrower to or on behalf of Holdings in an amount sufficient to pay out-of-pocket legal, accounting and filing costs and other expenses in the nature of overhead in the ordinary course of business of Holdings, in the case of preceding clauses (i) and (ii) in an aggregate amount not to exceed $1,000,000 in any period of twelve (12) consecutive months, (iii) distributions to Holdings to pay (or to make distributions to any direct or indirect parent of Holdings to pay) operating expenses in the ordinary course and other corporate overhead (in each case, to the extent attributable to the assets, income or activities of the Borrower and its Subsidiaries) and (iv) distributions to Holdings (or to make distributions to any direct or indirect parent of Holdings to pay) to pay expenses of debt or equity offerings, provided that, as to clauses (iii) and (iv), that the aggregate amount of payments under clauses (iii) and (iv) shall not exceed $2,500,000;
(e) Permitted Tax Distributions by the Borrower to Holdings (or the direct or indirect holders of the Equity Interests of Holdings), so long as (i) Holdings (or the direct or indirect holders of the Equity Interests of Holdings) uses such distributions substantially concurrently to pay its Taxes, (ii) such Taxes are attributable to the assets, income or activities of the Borrower and its Subsidiaries and (iii) any refunds related to any such Permitted Tax Distribution received by Holdings (or Affiliates the direct or indirect holders of the Equity Interests of Holdings) shall make promptly be returned by Holdings to the Borrower;
(f) Restricted Payments in an aggregate amount outstanding not to exceed the Cumulative Credit Availability as of the time such Restricted Payments were made; provided that no such payments will be permitted under this Section 7.06(f) unless at the time that any such Restricted Payment or set aside any funds therefor unless, is made (and immediately after giving effect thereto), (i) Holdings shall be in compliance, on a Pro Forma Basis, with a Consolidated Total Lease Adjusted Leverage Ratio of not more than 4.50:1.00, for the aggregate most recent Measurement Period for which financial statements are available, and (ii) prior to the payment or making of such Restricted Payments for all such purposes subsequent Payments, Holdings or the Borrower shall have delivered to the Closing Date would not exceed Administrative Agent a certificate executed by the sum chief financial officer, demonstrating in reasonable detail (as in effect from time including all applicable calculations) (1) (x) the amount of Cumulative Credit Availability immediately prior to timesuch Restricted Payment and the amount thereof to be so applied, hereinafter referred and (y) permitted pursuant to as this Section 7.06(f), and (2) the "Distribution Fund"Consolidated Total Lease Adjusted Leverage Ratio required pursuant to the preceding clause (i);
(g) of after an IPO, (i) 50% any Restricted Payment by the Borrower or any other direct or indirect parent of the Company's Cumulative Combined Net Income subsequent Borrower to December 31, 1991 pay listing fees and other costs and expenses attributable to being a publicly traded company and (ii) Restricted Payments of up to 6.0% per annum of the net proceeds received by (or contributed to) Holdings and its Subsidiaries from such IPO;
(h) Repurchases of Equity Interests from employees deemed to occur upon the exercise of stock options or warrants by the applicable employee if such Equity Interests represent a portion of the exercise price of tax withholding obligation of such options or warrants and approved by the Board of Directors so long as the Company's Combined Tangible Net Worth is greater than $31,051,000, (ii) the aggregate exercise of the net cash proceeds received by the Company from any issuance such stock option or sale warrant would not give rise to a Change of capital shares of the Company subsequent to the Closing Date, and (iii) the aggregate of the net cash proceeds received by the Company from any issuance of any Indebtedness of the Company which has been converted into capital shares of the Company subsequent to the Closing Date, which amount shall be added to the Distribution Fund only after such conversion. Notwithstanding the foregoing, the Company may acquire its own capital shares for an aggregate amount from and after the Closing date equal to the greater of (x) the sum of Control; and
(i) 25% of the Cumulative Combined Net Income of Specified Amendment No. 1 Dividend on or within seven (7) days after the Company subsequent to December 31, 1991, plus Amendment No. 1 Effective Date;
(ii) $500,000, or (yj) the Specified Amendment No. 2 Dividend on or within seven (7) days after the Amendment No. 2 Effective Date; provided, that the amount then available under the Distribution Fund, which amount shall be charged to the Distribution Fund. No of Restricted Payment Payments that may be made in other than cash or securities which are actively traded on for a nationally recognized public market particular purpose pursuant to Sections 7.06(c) through and have a readily ascertainable market value (which value including 7.06(e) shall be reduced dollar-for-dollar by the amount of any such Restricted Payment), unless payments made for such purpose in the Company shall have received a report from form of an independent recognized appraiser as to intercompany loan by the fair value of the property to be distributed Borrower or transferred, in which case the amount of such Restricted Payment shall be deemed to be the greater one of its fair value (as determined by such appraiser) or its net book value on the books of the Company. Notwithstanding any of the foregoing provisions of this paragraph, neither the Company nor any Subsidiary or Affiliate shall make any Restricted Payment if at the time or after giving effect thereto, there shall exist any DefaultSubsidiaries to Holdings pursuant to Section 7.03(n).
Appears in 2 contracts
Sources: Amendment No. 4 (Bojangles', Inc.), Amendment No. 4 (Bojangles', Inc.)
Restricted Payments. Neither From and after the date hereof the Company nor shall not, and shall not permit any of its Restricted Subsidiaries to, directly or Affiliates shall indirectly: (i) declare or pay any dividend or make any other payment or distribution on account of the Company's or any of its Restricted Subsidiaries' Equity Interests (including, without limitation, any such dividend, distribution or other payment made as a payment in connection with any merger or consolidation involving the Company or any of its Restricted Subsidiaries), other than dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company or dividends or distributions payable to the Company or any Wholly Owned Subsidiary of the Company; (ii) purchase, redeem or otherwise acquire or retire for value (including, without limitation, any such purchase, redemption or other acquisition or retirement for value made as a payment in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or any Restricted Subsidiary (other than any such Equity Interests owned by the Company or any Restricted Subsidiary of the Company); (iii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value, any Indebtedness that is subordinated to the Notes, except a payment of interest or a payment of principal at Stated Maturity; or (iv) make any Restricted Payment or Investment (all such payments and other actions set aside any funds therefor forth in clauses (i) through (iv) above being collectively referred to as "Restricted Payments"), unless, at the time of and immediately after giving effect theretoto such Restricted Payment:
(a) no Default or Event of Default shall have occurred and be continuing; and
(b) the Company would, at the aggregate time of such Restricted Payments for all Payment, and after giving pro forma effect thereto as if any Indebtedness in order to make such purposes subsequent Restricted Payment had been incurred at the beginning of the applicable four quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Closing Date would not exceed Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 4.09 hereof; and
(c) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after the date hereof (excluding Restricted Payments permitted by clauses (ii), (iii), (iv), (vi), (vii), (viii) and (x) of the next succeeding paragraph), is less than the sum (as in effect from time to time, hereinafter referred to as the "Distribution Fund"without duplication) of (i) 50% of the Company's Cumulative Combined Consolidated Net Income subsequent of the Company for the period (taken as one accounting period) from the beginning of the first fiscal quarter commencing after the date hereof to December 31, 1991 so long as the end of the Company's Combined Tangible most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Worth Income for such period is greater than $31,051,000a deficit, less 100% of such deficit), plus (ii) 100% of the aggregate of the net cash proceeds Qualified Proceeds received by the Company from any issuance contributions to the Company's capital or the issue or sale subsequent to the date hereof of capital shares Equity Interests of the Company subsequent to the Closing Date, and (iiiother than Disqualified Stock) the aggregate or of the net cash proceeds received by the Company from any issuance of any Indebtedness Disqualified Stock or debt securities of the Company which has that have been converted into capital shares such Equity Interests (other than Equity Interests (or Disqualified Stock or convertible debt securities) sold to a Subsidiary of the Company subsequent to the Closing Date, which amount shall be added to the Distribution Fund only after such conversion. Notwithstanding the foregoing, the Company may acquire its own capital shares for an aggregate amount from and after the Closing date equal to the greater of (x) the sum of (i) 25% of the Cumulative Combined Net Income of the Company subsequent to December 31, 1991, plus (ii) $500,000, or (y) the amount then available under the Distribution Fund, which amount shall be charged to the Distribution Fund. No Restricted Payment may be made in other than cash Disqualified Stock or securities which are actively traded on a nationally recognized public market and have a readily ascertainable market value (which value shall be the amount of such Restricted Payment), unless the Company shall have received a report from an independent recognized appraiser as to the fair value of the property to be distributed or transferred, in which case the amount of such Restricted Payment shall be deemed to be the greater of its fair value (as determined by such appraiser) or its net book value on the books of the Company. Notwithstanding any of the foregoing provisions of this paragraph, neither the Company nor any Subsidiary or Affiliate shall make any Restricted Payment if at the time or after giving effect thereto, there shall exist any Default.convertible debt
Appears in 2 contracts
Sources: Indenture (Diamond Brands Inc), Indenture (Diamond Brands Operating Corp)
Restricted Payments. Neither the The Company nor shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly: (i) declare or pay any dividend or make any other payment or distribution on account of the Company's or any of its Restricted Subsidiary's Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company or any Restricted Subsidiary) or to any direct or indirect holders of the Company's Equity Interests in their capacity as such (other than dividends or distributions (a) payable in Equity Interests (other than Disqualified Stock) of the Company or (b) to the Company or any Wholly Owned Restricted Subsidiary of the Company); (ii) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or any of its Restricted Subsidiaries or Affiliates shall any direct or indirect parent of the Company (other than any such Equity Interests owned by the Company or any Restricted Subsidiary of the Company or Permitted Investments); (iii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness of the Company or any Restricted Subsidiary that is subordinated to the Notes or any guarantee of the Notes, except a payment of interest or principal at Stated Maturity; or (iv) make any Restricted Payment Investment (all such payments and other actions set forth in clauses (i) through (iv) above being collectively
(a) no Default or set aside any funds therefor unlessEvent of Default shall have occurred and be continuing or would occur as a consequence thereof; and
(b) the Company would, after giving effect thereto, at the aggregate time of such Restricted Payments for all Payment and after giving pro forma effect thereto as if such purposes subsequent Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Closing Date would not exceed Debt to Cash Flow Ratio test set forth in the sum first paragraph of Section 4.09 hereof, and
(as in effect from time to timec) such Restricted Payment, hereinafter referred to as together with the "Distribution Fund"aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after the date of this Indenture (excluding Restricted Payments permitted by clauses (ii), (iii) and (iv) of the next succeeding paragraph), is less than the sum, without duplication, of (i) 50% an amount equal to the Consolidated Cash Flow of the Company for the period (taken as one accounting period) from the beginning of the first fiscal quarter commencing after the date of this Indenture to the end of the Company's Cumulative Combined Net Income subsequent to December 31most recently ended full fiscal quarter for which financial statements have been filed with the SEC (the "Basket Period") less the product of 1.4 times the Consolidated Interest Expense of the Company for the Basket Period), 1991 so long as the Company's Combined Tangible Net Worth is greater than $31,051,000, plus (ii) 100% of the aggregate of the net cash proceeds received by the Company as a contribution to its common equity capital or from any issuance the issue or sale since the date of this Indenture of Equity Interests of the Company (other than Disqualified Stock) or from the issue or sale of capital shares Disqualified Stock or debt securities of the Company subsequent that have been converted into such Equity Interests (other than Equity Interests (or Disqualified Stock or convertible debt securities) sold to a Subsidiary of the Company and other than Disqualified Stock or convertible debt securities that have been converted into Disqualified Stock), plus (ii) to the Closing Dateextent that any Restricted Investment that was made after the date of this Indenture is sold for cash or otherwise liquidated or repaid for cash, the lesser of (A) the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any) and (iiiB) the aggregate initial amount of such Restricted Investment. The foregoing provisions will not prohibit (i) the payment of any dividend within 60 days after the date of declaration thereof, if at the 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 Equity Interests of Company or subordinated Indebtedness of the Company or any Guarantor in exchange for, or out of the net cash proceeds received by of the Company from any issuance substantially concurrent sale (other than to a Subsidiary of any Indebtedness the Company) of, other Equity Interests of the Company which has been converted into capital shares (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; and, provided further, that no Default or Event of Default shall have occurred and be continuing immediately after such transaction; (iii) the defeasance, redemption, repurchase or other acquisition of subordinated Indebtedness with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness; provided that no Default or Event of Default shall have occurred and be continuing immediately after such transaction; (iv) the payment of any dividend by a Restricted Subsidiary of the Company subsequent to the Closing Date, which amount shall be added to the Distribution Fund only after such conversion. Notwithstanding the foregoing, the Company may acquire its own capital shares for an aggregate amount from and after the Closing date equal to the greater holders of (x) the sum of (i) 25% of the Cumulative Combined Net Income of the Company subsequent to December 31, 1991, plus (ii) $500,000, or (y) the amount then available under the Distribution Fund, which amount shall be charged to the Distribution Fund. No Restricted Payment may be made in other than cash or securities which are actively traded Equity Interests on a nationally recognized public market and have a readily ascertainable market value (which value shall be the amount of such Restricted Payment), unless the Company shall have received a report from an independent recognized appraiser as to the fair value of the property to be distributed or transferred, in which case the amount of such Restricted Payment shall be deemed to be the greater of its fair value (as determined by such appraiser) or its net book value on the books of the Company. Notwithstanding any of the foregoing provisions of this paragraph, neither the Company nor any Subsidiary or Affiliate shall make any Restricted Payment if at the time or after giving effect thereto, there shall exist any Default.pro rata basis;
Appears in 2 contracts
Sources: Indenture (Spanish Broadcasting System Inc), Indenture (Spanish Broadcasting System of Puerto Rico Inc /Pr/)
Restricted Payments. Neither the (a) The Company nor will not, and will not permit any of its Restricted Subsidiaries to, directly or Affiliates shall indirectly:
(1) declare or pay any dividend or make any other payment or distribution on account of the Company's or any of its Restricted Subsidiaries' Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company) or to the direct or indirect holders of the Company's or any of its Restricted Subsidiaries' Equity Interests in their capacity as such (other than dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company);
(2) purchase, redeem or otherwise acquire or retire for value (including without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or any direct or indirect parent of the Company;
(3) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness that is subordinated to the Notes or the Note Guarantees, except a payment of interest or principal at the Stated Maturity of the Indebtedness; or
(4) make any Restricted Payment or Investment (all such payments and other actions set aside any funds therefor forth in these clauses (1) through (4) above being collectively referred to as "RESTRICTED PAYMENTS"), unless, at the time of and after giving effect thereto, the aggregate to such Restricted Payment:
(1) no Default or Event of Default has occurred and is continuing or would occur as a consequence of such Restricted Payments for all Payment; and
(2) the Company would, at the time of such purposes subsequent Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Closing Date would not exceed Fixed Charge Coverage Ratio test set forth in the sum first paragraph of Section 4.09; and
(as in effect from time to time3) such Restricted Payment, hereinafter referred to as together with the "Distribution Fund"aggregate amount of all other Restricted Payments made by the Company and its Subsidiaries after the date of this Indenture (excluding Restricted Payments permitted by clauses (2) and (3) of paragraph (ib) below), is less than the sum, without duplication of: 44
(A) 50% of the Company's Cumulative Combined Consolidated Net Income subsequent of the Company for the period (taken as one accounting period) from the beginning of the first fiscal quarter commencing after the date of this Indenture to December 31, 1991 so long as the end of the Company's Combined Tangible most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Worth Income for such period is greater than $31,051,000a deficit, less 100% of such deficit), PLUS
(iiB) 100% of the aggregate of the net cash proceeds received by the Company since the date of this Indenture as a contribution to its common equity capital or from any issuance the issue or sale of capital shares Equity Interests of the Company subsequent (other than Disqualified Stock) or from the issue or sale of convertible or exchangeable Disqualified Stock or convertible or exchangeable debt securities of the Company that have been converted into or exchanged for such Equity Interests (other than Equity Interests (or Disqualified Stock or debt securities) sold to a Subsidiary of the Company and other than Disqualified Stock or convertible debt securities that have been converted into Disqualified Stock), PLUS
(C) to the Closing Dateextent that any Restricted Investment that was made after the date of this Indenture is sold for cash or otherwise liquidated or repaid for cash, the lesser of (i) the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any) and (iiiii) the aggregate initial amount of such Restricted Investment, PLUS
(D) if any Unrestricted Subsidiary (i) is redesignated as a Restricted Subsidiary, the fair market value of such redesignated Subsidiary (as determined in good faith by the Board of Directors of the Company) as of the date of its redesignation or (ii) pays any cash dividends or cash contributions to the Company or any of its Restricted Subsidiaries, 50% of any such cash dividends or cash distributions made after the date of this Indenture.
(b) So long as no Default has occurred and is continuing or would be caused thereby, the provisions of Section 4.07(a) will not prohibit:
(1) the payment of any dividend within 60 days after the date of declaration of the dividend, if at the date of declaration the dividend payment would have complied with the provisions of this Indenture;
(2) the redemption, repurchase, retirement, defeasance or other acquisition of any subordinated Indebtedness of the Company or of any Equity Interests of the Company in exchange for, or out of the net cash proceeds received by of the Company from any substantially concurrent sale or issuance (other than to a Restricted Subsidiary of any Indebtedness the Company) of, other Equity Interests of the Company which has been converted into capital shares (other than any Disqualified Stock);
(3) the defeasance, redemption, repurchase or other acquisition of subordinated Indebtedness with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness;
(4) the payment of any dividend by a Restricted Subsidiary of the Company subsequent to the Closing Dateholders of its Equity Interests on a PRO RATA basis;
(5) Investments in any Person (other than the Company or a Wholly Owned Restricted Subsidiary) engaged in a Permitted Business in an amount taken together with all other 45 Investments made pursuant to this clause 5 that are at that time outstanding not to exceed $5.0 million;
(6) other Investments in Unrestricted Subsidiaries having an aggregate fair market value, which amount shall be added taken together with all other Investments made pursuant to this clause 6 that are at that time outstanding, not to exceed $2.0 million;
(7) the designation of certain of the Company's Subsidiaries as Unrestricted Subsidiaries immediately prior to the Distribution Fund only after such conversion. Notwithstanding date of this Indenture;
(8) the foregoingrepurchase, redemption or other acquisition or retirement for value of any Equity Interests of AP Holdings, Inc. or the Company may acquire its own capital shares or any Subsidiary of the Company held by any member of AP Holdings, Inc, or the Company's (or any of their Restricted Subsidiaries') management pursuant to any management equity subscription agreement or stock option agreement or in connection with the termination of employment of any employees or management of AP Holdings, Inc. or the Company or their Subsidiaries; PROVIDED, that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall not exceed $2.0 million in the aggregate plus the aggregate cash proceeds received by AP Holdings, Inc. or the Company after the date of this Indenture from any reissuance of Equity Interests by AP Holdings, Inc. or the Company to members of management of AP Holdings, Inc. or the Company and their Restricted Subsidiaries; and
(9) other Restricted Payments in an aggregate amount from and after the Closing date equal not to exceed $5.0 million. Notwithstanding anything to the greater contrary, the redemption, repurchase or purchase of (x) the sum of (i) 25% of the Cumulative Combined Net Income of any equity interest in the Company subsequent or any of its Restricted Subsidiaries pursuant to December 31a put right, 1991right of redemption or right of repurchase will, plus (ii) $500,000in any such case, for the purposes of this Section 4.07, be treated as a payment or (y) distribution on account of an Equity Interest and will not be treated as a payment on indebtedness, no matter what the amount then available under accounting treatment of said transaction may be. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if that designation would not cause a Default; PROVIDED, that in no event will the Distribution Fundbusiness currently operated by any Guarantor be transferred to or held by an Unrestricted Subsidiary. If a Restricted Subsidiary is designated as an Unrestricted Subsidiary, which amount shall be charged to the Distribution Fund. No Restricted Payment may be made in other than cash or securities which are actively traded on a nationally recognized public market and have a readily ascertainable aggregate fair market value (which value shall be of all outstanding Investments owned by The Company and its Restricted Subsidiaries in the amount of such Restricted Payment), unless the Company shall have received a report from an independent recognized appraiser as to the fair value of the property to be distributed or transferred, in which case the amount of such Restricted Payment shall Subsidiary properly designated will be deemed to be an Investment made as of the greater time of its fair value (the designation and will reduce the amount available for Restricted Payments under Section 4.07(a) or Permitted Investments, as determined by such appraiserthe Company. That designation will only be permitted if the Investment would be permitted at that time and if the 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 the redesignation would not cause a Default. The amount of all Restricted Payments (other than cash) or its net book will be the fair market value on the books date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company or such Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment will be determined in good faith by the Board of Directors of the Company whose resolution with respect thereto shall be delivered to the Trustee in an Officers' Certificate signed by the Secretary of the Company. Notwithstanding The Board of Directors' determination must be based upon an opinion or appraisal issued by an accounting, appraisal or investment banking firm of national standing if the fair market value exceeds $10.0 million. Not later than the date of making any of the foregoing provisions of this paragraphRestricted Payment, neither the Company nor any Subsidiary or Affiliate shall make any will deliver to the Trustee an Officers' Certificate stating that such Restricted Payment if at is permitted and setting forth the time basis upon which the calculations required by this Section 4.07 were computed, together with a copy of any fairness opinion or after giving effect thereto, there shall exist any Defaultappraisal required by this Indenture.
Appears in 2 contracts
Sources: Indenture (Ap Holdings Inc), Indenture (Apcoa Standard Parking Inc /De/)
Restricted Payments. Neither the The Company nor shall not, and shall not permit any of its Restricted Subsidiaries to, directly or Affiliates shall indirectly, (i) declare or pay any dividend or make any other payment or distribution on account of the Company's or any of its Restricted Subsidiaries' Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company) or to the direct or indirect holders of the Company's Equity Interests in their capacity as such (other than dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company); (ii) purchase, redeem or otherwise acquire or retire for value (including without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company (other than any such Equity Interests owned by the Company or any Wholly Owned Restricted Subsidiary of the Company); (iii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value, any Indebtedness that is subordinated to the Notes, except a payment of interest or principal at Stated Maturity; or (iv) make any Restricted Payment or Investment (all such payments and other actions set aside any funds therefor forth in clauses (i) through (iv) above being collectively referred to as "Restricted Payments"), unless, at the time of and after giving effect theretoto such Restricted Payment:
(a) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof;
(b) the Company would, at the aggregate time of such Restricted Payments for all Payment and after giving pro forma effect thereto as if such purposes subsequent Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Closing Date would not exceed Consolidated Interest Coverage Ratio test set forth in Section 4.09 hereof; and
(c) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after July 21, 1997 (excluding Restricted Payments permitted by clauses (b), (c), (d) and (f), but including, without duplication, Restricted Payments permitted by clauses (a) and (e), of the next succeeding paragraph), is less than the sum (as in effect from time to time, hereinafter referred to as the "Distribution Fund") of (iA) 50% of the Company's Cumulative Combined Consolidated Net Income subsequent of the Company for the period (taken as one accounting period) from July 1, 1997 to December 31, 1991 so long as the end of the Company's Combined Tangible most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Worth Income for such period is greater than $31,051,000a deficit, less 100% of such deficit), plus (iiB) 100% of the aggregate of the net cash proceeds received by the Company from any issuance the issue or sale since July 21, 1997 of capital shares Equity Interests of the Company subsequent to the Closing Date, and (iiiother than Disqualified Stock) the aggregate or of the net cash proceeds received by the Company from any issuance of any Indebtedness Disqualified Stock or debt securities of the Company which has that have been converted into capital shares such Equity Interests (other than any such Equity Interests, Disqualified Stock or convertible debt securities sold to a Restricted Subsidiary of the Company subsequent to the Closing Date, which amount shall be added to the Distribution Fund only after such conversion. Notwithstanding the foregoing, the Company may acquire its own capital shares for an aggregate amount from and after the Closing date equal to the greater of (x) the sum of (i) 25% of the Cumulative Combined Net Income of the Company subsequent to December 31, 1991other than Disqualified Stock or convertible debt securities that have been converted into Disqualified Stock), plus (iiC) $500,000to the extent that any Restricted Investment that was made after July 21, 1997 is or was sold for cash or otherwise liquidated or repaid for cash, the lesser of (y1) the amount then available under cash return of capital with respect to such Restricted Investment (less the Distribution Fundcost of disposition, which amount shall be charged to if any) and (2) the Distribution Fund. No Restricted Payment may be made in other than cash or securities which are actively traded on a nationally recognized public market and have a readily ascertainable market value (which value shall be the initial amount of such Restricted Payment)Investment, unless plus (D) in the Company shall have received event that any Unrestricted Subsidiary is redesignated as a report from Restricted Subsidiary, the lesser of (1) an independent recognized appraiser as amount equal to the fair value of the property to be distributed or transferred, Company's Investments in which case such Restricted Subsidiary and (2) the amount of such Restricted Payment shall be deemed to be the greater of its fair value (as determined Investments previously made by such appraiser) or its net book value on the books of the Company. Notwithstanding any of the foregoing provisions of this paragraph, neither the Company nor any Subsidiary or Affiliate shall make any and its Restricted Payment if at the time or after giving effect theretoSubsidiaries in such Unrestricted Subsidiary, there shall exist any Default.plus (E) $5.0
Appears in 2 contracts
Sources: Indenture (Saevik Shipping As), Indenture (Trico Marine Services Inc)
Restricted Payments. Neither the Company nor Anvil shall not, and shall not permit any of its Restricted Subsidiaries to, directly or Affiliates shall indirectly: (i) declare or pay any dividend or make any distribution on account of Anvil's or any of its Restricted Subsidiaries' Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving Anvil) (other than dividends or distributions payable in Equity Interests (other than Disqualified Stock) of Anvil or dividends or distributions payable to Anvil or any Wholly Owned Subsidiary of Anvil); (ii) purchase, redeem or otherwise acquire or retire for value any Equity Interests of Anvil or any direct or indirect parent of Anvil or other Affiliate or Restricted Subsidiary of Anvil; (iii) make any principal payment on, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness that is subordinated to the Senior Notes, except in accordance with the scheduled mandatory redemption or repayment provisions set forth in the original documentation governing such Indebtedness (but not pursuant to any mandatory offer to repurchase upon the occurrence of any event); or (iv) make any Restricted Payment or Investment (all such payments and other actions set aside any funds therefor forth in clauses (i) through (iv) above being collectively referred to as "Restricted Payments"), unless, at the time of and after giving effect theretoto such Restricted Payment:
(a) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof;
(b) Anvil would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 4.10; and
(c) such Restricted Payment, together with the aggregate of such all other Restricted Payments for all such purposes subsequent to made by Anvil and its Restricted Subsidiaries after the Closing Date would not exceed date of this Indenture, is less than the sum (as in effect from time to timeof, hereinafter referred to as the "Distribution Fund") of without duplication, (i) 50% of the Company's Cumulative Combined Net Income subsequent to December 31, 1991 so long as the Company's Combined Tangible Net Worth is greater than $31,051,000, (ii) the aggregate of the net cash proceeds received by the Company from any issuance or sale of capital shares of the Company subsequent to the Closing Date, and (iii) the aggregate of the net cash proceeds received by the Company from any issuance of any Indebtedness of the Company which has been converted into capital shares of the Company subsequent to the Closing Date, which amount shall be added to the Distribution Fund only after such conversion. Notwithstanding the foregoing, the Company may acquire its own capital shares for an aggregate amount from and after the Closing date equal to the greater of (x) the sum of (i) 25% of the Cumulative Combined Consolidated Net Income of Anvil for the Company subsequent period (taken as one accounting period) from the beginning of the first fiscal quarter commencing after the date of this Indenture to December 31the end of Anvil's most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, 1991if such Consolidated Net Income for such period is a deficit, less 100% of such deficit), plus (ii) $500,000to the extent not included in the amount described in clause (i) above, 100% of the aggregate net cash proceeds received after the date of this Indenture by Anvil from the issue or sale of, or from additional capital contributions in respect of, Equity Interests of Anvil or of debt securities of Anvil or any Subsidiary Guarantor that have been converted into, or cancelled in exchange for, Equity Interests of Anvil (y) the amount then available under the Distribution Fund, which amount shall be charged to the Distribution Fund. No Restricted Payment may be made in other than cash Equity Interests (or convertible debt securities) sold to a Restricted Subsidiary or an Unrestricted Subsidiary of Anvil and other than Disqualified Stock or debt securities which are actively traded on a nationally recognized public market that have been converted into Disqualified Stock and have a readily ascertainable market value (which value shall be less the amount of such Restricted Paymentany loans made pursuant to clause (vi) of the next succeeding paragraph), unless plus (iii) 100% of any cash dividends received by Anvil or a Wholly Owned Subsidiary that is a Subsidiary Guarantor after the Company shall have received a report date of the Indenture from an independent recognized appraiser as to the fair value Unrestricted Subsidiary of Anvil, plus (iv) 100% of the property to be distributed or transferred, in which case cash proceeds realized upon the sale of any Unrestricted Subsidiary (less the amount of any reserve established for purchase price adjustments and less the maximum amount of any indemnification or similar contingent obligation for the benefit of the purchaser, any of its Affiliates or any other third party in such sale, in each case as adjusted for any permanent reduction in any such amount on or after the date of such sale, other than by virtue of a payment made to such Person) following the date of this Indenture, plus (v) to the extent that any Restricted Investment that was made after the date of this Indenture is sold to an unaffiliated purchaser for cash or otherwise liquidated or repaid for cash, the cash proceeds realized with respect to such Restricted Payment Investment (less the cost of disposition, if any). The foregoing provisions shall 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 making of any Restricted Investment in exchange for, or out of the proceeds of, the substantially concurrent sale (other than to a Subsidiary of Anvil) of, or from substantially concurrent additional capital contributions in respect of, Equity Interests of Anvil (other than Disqualified Stock); (iii) the redemption, repurchase, retirement or other acquisition of any Equity Interests of Anvil or any direct or indirect parent of Anvil in exchange for, or out of the proceeds of, the substantially concurrent sale (other than to a Subsidiary of Anvil) of, or from substantially concurrent additional capital contributions in respect of, other Equity Interests of Anvil (other than any Disqualified Stock); (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 Anvil) of, or from substantially concurrent additional capital contributions in respect of, Equity Interests of Anvil (other than Disqualified Stock); (v) the declaration or payment of any dividend to Holdings for, or the direct repurchase, redemption or other acquisition or retirement for value of any Equity Interests of Anvil or any Restricted Subsidiary of Anvil or Holdings held by any member of Anvil's (or any of its Restricted Subsidiaries' or Holdings') management pursuant to any management agreement, stock option agreement or plan or stockholders agreement; provided that (X) the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall not exceed $1.0 million in any fiscal year (plus any amount available for such payments hereunder since the date of this Indenture which have not been used for such purpose) or (Y) $5.0 million in the aggregate (in each case, net of the cash proceeds received by Anvil from subsequent reissuances of such Equity Interests to new members of management); (vi) loans to members of management of Anvil or any Restricted Subsidiary the proceeds of which are used for a concurrent purchase of Equity Interests of Holdings and a capital contribution in an amount equal to such proceeds to Anvil; (vii) payments in connection with the application of the net proceeds of the Recapitalization as set forth under "Use of Proceeds" in the Offering Memorandum; (viii) payments to Holdings in respect of accounting, legal or other administrative expenses incurred by Holdings relating to the operations of Anvil in the ordinary course of business and in respect of fees and related expenses associated with registration statements filed with the Commission and subsequent ongoing public reporting requirements arising from the issuance of the Guarantee, the Senior Preferred Stock and the Exchange Debentures; provided that the aggregate amount of such payments does not exceed $500,000 in any fiscal year; (ix) so long as Holdings files consolidated income tax returns which include Anvil, payments to Holdings in an amount equal to the amount of income tax that Anvil would have paid if it had filed consolidated tax returns on a separate-company basis; (x) payments to Holdings in an amount sufficient to pay director's fees and the reasonable expenses of its directors in an aggregate amount not to exceed $125,000 per year (including indemnification obligations and professional fees and expenses) and to pay salaries and other compensation of employees who perform services for both Anvil and Holdings; (xi) payments to Holdings in an amount not to exceed $200,000 in aggregate to enable Holdings to make payments to holders of its Capital Stock in lieu of issuing fractional shares thereof; (xii) in the event Holdings elects to issue the Exchange Debentures in exchange for the Senior Preferred Stock, cash payments to Holdings in an amount necessary to enable Holdings to make payments to the holders of the Senior Preferred Stock (A) in lieu of issuing an Exchange Debenture in a principal amount less than $1,000 and (B) any accrued and unpaid dividends in respect of the period from the dividend payment date immediately preceding the exchange date to the exchange date; (xiii) the making of any principal payment on, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness that is subordinated to the Senior Notes out of Excess Proceeds available for general corporate purposes after consummation of purchases of Senior Notes pursuant to an Asset Sale Offer; and (xiv) the repurchase of the Senior Preferred Stock or the Exchange Debentures in connection with an offer required to be made therefor in connection with a Change of Control provided that Anvil has previously paid all amounts required to be paid in connection with any Change of Control Offer for the Senior Notes; provided however that in the case of any transaction described in clauses (i), (ii), (iii), (iv) and (v) no Default or Event of Default will have occurred and be continuing immediately after such transaction. In determining the aggregate amount of Restricted Payments made after the date of hereof, 100% of the amounts expended pursuant to the foregoing clauses (ii), (iii), (iv)(Y), (v) and (vi) shall be included in such calculation and none of the amounts expended pursuant to the foregoing clauses (i), (iv)(X), (vii), (viii), (ix), (x), (xi), (xii), (xiii) and (xiv) shall be included in such calculation. As of the date of this Indenture, all of Anvil's Subsidiaries were Restricted Subsidiaries. The Board of Directors may designate any Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default. For purposes of making such determination, all outstanding Investments by Anvil and its Restricted Subsidiaries (except to the extent repaid in cash) in the Subsidiary so designated shall be deemed to be Restricted Payments at the time of such designation and shall reduce the amount available for Restricted Payments under the first paragraph of this covenant. Such designation shall only be permitted if such Restricted Payment would be permitted at such time and if such Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. The amount of all Restricted Payments (other than cash) shall be the greater of its (i) book value and (ii) fair market value (as determined evidenced by such appraisera resolution of the Board of Directors set forth in an Officers' Certificate delivered to the Trustee) or its net book value on the books date of the Company. Notwithstanding any Restricted Payment of the foregoing provisions asset(s) proposed to be transferred by Anvil or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. Not later than the date of this paragraph, neither the Company nor any Subsidiary or Affiliate shall make making any Restricted Payment, Anvil shall deliver to the Trustee an Officers' Certificate stating that such Restricted Payment if at is permitted and setting forth the time or after giving effect theretobasis upon which the calculation required by this covenant were computed, there shall exist any Defaultwhich calculations may be based upon Anvil's latest available financial statements.
Appears in 2 contracts
Sources: Indenture (Cottontops Inc), Indenture (Anvil Holdings Inc)
Restricted Payments. Neither the The Company nor shall not, and shall not permit any of its Subsidiaries to, directly or Affiliates shall indirectly: (i) declare or pay any dividend or make any other payment or distribution on account of the Equity Interests of the Company or any of its Subsidiaries (including, without limitation, any payment in connection with any merger or consolidation involving the Company) or to the direct or indirect holders of the Equity Interests of the Company or any of its Subsidiaries in their capacity as such (other than dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company); (ii) purchase, redeem or otherwise acquire or retire for value any Equity Interests of the Company or any direct or indirect parent of the Company or other Affiliate of the Company that is not a Subsidiary of the Company, (other than any such Equity Interests owned by the Company or any Wholly Owned Subsidiary of the Company); (iii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness that is subordinated to the Notes, except a payment of interest or principal at Stated Maturity or (iv) make any Restricted Payment or Investment (all such payments and other actions set aside any funds therefor forth in clauses (i) through (iv) above being collectively referred to as "Restricted Payments"), unless, at the time of and after giving effect theretoto such Restricted Payment:
(a) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof;
(b) the Company would, at the aggregate time of such Restricted Payments for all Payment and after giving pro forma effect thereto as if such purposes subsequent Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Closing Date would not exceed Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 4.09 of this Indenture; and
(c) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Subsidiaries after the date of this Indenture (excluding Restricted Payments permitted by clauses (ii), (iii), (iv) and (vi) of the next succeeding paragraph), is less than the sum (as in effect from time to time, hereinafter referred to as the "Distribution Fund") of (i) 50% of the Company's Cumulative Combined Consolidated Net Income subsequent of the Company for the period (taken as one accounting period) commencing July 1, 1997 to December 31, 1991 so long as the end of the Company's Combined Tangible most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Worth Income for such period is greater than $31,051,000a deficit, less 100% of such deficit), plus (ii) 100% of the aggregate of the net cash proceeds received by the Company from any issuance the issue or sale since the date of capital shares this Indenture of Equity Interests of the Company subsequent (other than Disqualified Stock) or of Disqualified Stock or of debt securities of the Company that have been converted into such Equity Interests (other than Equity Interests (or Disqualified Stock or convertible debt securities) sold to a Subsidiary of the Closing DateCompany and other than Disqualified Stock or debt securities that have been converted into Disqualified Stock), and plus (iii) to the aggregate extent that any Restricted Investment that was made after the date of this Indenture is sold for cash or otherwise liquidated or repaid for cash or is sold for non-cash consideration and such non-cash consideration is subsequently sold for cash, the lesser of (A) the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any) and (B) the initial amount of such Restricted Investment. The foregoing provisions shall 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 in exchange for, or out of the net cash proceeds received of the substantially concurrent sale (other than to a 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 or other acquisition of subordinated Indebtedness with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness; (iv) the payment of any dividend by a Subsidiary of the Company to the holders of its common Equity Interests on a pro rata basis; (v) the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Subsidiary of the Company held by any member of the Company's (or any of its Subsidiaries') management pursuant to any management equity subscription agreement or stock option agreement; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall not exceed $250,000 in any twelve-month period and no Default or Event of Default shall have occurred and be continuing immediately after such transaction; (vi) payments by the Company from or any issuance of any Indebtedness Subsidiary of the Company which has been converted into capital shares of the Company subsequent Company, directly or indirectly, to the Closing DateCompany's stockholder to satisfy tax obligations in accordance with the Tax Allocation Agreement as in effect on the date hereof ("Tax Distributions"); and (vii) so long as no Default or Event of Default shall have occurred and be continuing, which amount shall be added to the Distribution Fund only after such conversion. Notwithstanding the foregoing, the Company may acquire its own capital shares for other Restricted Payments in an aggregate amount from and after not to exceed $5.0 million since the Closing date equal to the greater hereof. The amount of all Restricted Payments (x) the sum of (i) 25% of the Cumulative Combined Net Income of the Company subsequent to December 31, 1991, plus (ii) $500,000, or (y) the amount then available under the Distribution Fund, which amount shall be charged to the Distribution Fund. No Restricted Payment may be made in other than cash or securities which are actively traded on a nationally recognized public market and have a readily ascertainable market value (which value cash) shall be the amount fair market value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company or such Subsidiary, as the case may be, pursuant to the Restricted Payment), unless the Company shall have received a report from an independent recognized appraiser as to the . The fair market value of the property to be distributed or transferred, in which case the amount of such any non-cash Restricted Payment shall be deemed 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 $5.0 million. Not later than the greater date of its fair value (as determined by such appraiser) or its net book value on the books of the Company. Notwithstanding making any of the foregoing provisions of this paragraphRestricted Payment, neither the Company nor any Subsidiary or Affiliate shall make any deliver to the Trustee an Officers' Certificate stating that such Restricted Payment if at is permitted and setting forth the time basis upon which the calculations required by this Section 4.07 were computed, together with a copy of any fairness opinion or after giving effect thereto, there shall exist any Defaultappraisal required hereby.
Appears in 2 contracts
Sources: Indenture (Amcraft Building Products Co Inc), Indenture (Amcraft Building Products Co Inc)
Restricted Payments. Neither the The Company nor shall not, and shall not permit any of its Restricted Subsidiaries to, directly or Affiliates shall indirectly: (i) declare or pay any dividend or make any other payment or distribution on account of the Company's or any of its Restricted Subsidiaries' Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company or any of its Restricted Subsidiaries) or to the direct or indirect holders of the Company's or any of its Restricted Subsidiaries' Equity Interests in their capacity as such (other than dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company or to the Company or a Restricted Subsidiary of the Company); (ii) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or any direct or indirect parent of the Company or other Affiliate of the Company (other than any such Equity Interests owned by the Company or any Restricted Subsidiary); (iii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness that is subordinated to the Notes or any guarantee thereof, except a payment of interest or principal at Stated Maturity; or (iv) make any Restricted Payment or Investment (all such payments and other actions set aside any funds therefor forth in clauses (i) through (iv) above being collectively referred to as "Restricted Payments"), unless, at the time of and after giving effect theretoto such Restricted Payment:
(a) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof; and
(b) the Company would, at the aggregate time of such Restricted Payments for all Payment and after giving pro forma effect thereto as if such purposes subsequent Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Closing Date would not exceed Fixed Charge Coverage Ratio test set forth in the sum first paragraph of the covenant described below under Section 4.9 hereof; and
(as in effect from time to timec) such Restricted Payment, hereinafter referred to as together with the "Distribution Fund"aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after the date of this Indenture (excluding Restricted Payments permitted by clauses (ii), (iii), (iv), (vi), (vii), (viii) and (ix) of the next succeeding paragraph), is less than the sum, without duplication, of (i) 50% of the Company's Cumulative Combined Consolidated Net Income subsequent of the Company and its Restricted Subsidiaries for the period (taken as one accounting period) from the beginning of the first fiscal quarter commencing after the date of this Indenture to December 31, 1991 so long as the end of the Company's Combined Tangible most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Worth Income for such period is greater a deficit, less 100% of such deficit), plus (ii) 100% of the aggregate net proceeds (including the fair market value of property other than cash (determined in good faith by the Board of Managers as evidenced by a certificate filed with the Trustee, except that in the event the value of any non-cash consideration shall be $31,051,00015.0 million or more, the value shall be as determined based upon an opinion or appraisal issued by an Independent Financial Advisor)) received by the Company since the date of this Indenture as a contribution to its common equity capital or from the issue or sale of Equity Interests (other than Disqualified Stock) of the Company (excluding any net proceeds from an Equity Offering or capital contribution to the extent used to redeem Notes in accordance with the optional redemption provisions of the Notes) or from the issue or sale of Disqualified Stock or debt securities of the Company that have been converted into such Equity Interests (other than Equity Interests (or Disqualified Stock or convertible debt securities) sold to a Subsidiary of the Company), plus (iii) to the extent that any Restricted Investment that was made after the date of this Indenture is sold for cash or otherwise liquidated or repaid for cash, the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any), plus (iv) any dividends (the fair market value of property other than cash shall be determined in good faith by the Board of Managers as evidenced by a certificate filed with the Trustee, except that in the event the value of any non-cash consideration shall be $15.0 million or more, the value shall be as determined based upon an opinion or appraisal issued by an Independent Financial Advisor) received by the Company or a Restricted Subsidiary after the date of this Indenture from an Unrestricted Subsidiary of the Company, to the extent that such dividends were not otherwise included in Consolidated Net Income of the Company for such period, plus (v) to the extent that any Unrestricted Subsidiary is redesignated as a Restricted Subsidiary after the date of this Indenture, if as a result of such redesignation, (x) the Fixed Charge Coverage Ratio of the Company on a pro forma basis is lower than such ratio immediately prior thereto, then the lesser of (A) the fair market value of the Company's Investment in such Subsidiary as of the date of such redesignation or (B) such fair market value as of the date on which such Subsidiary was originally designated as an Unrestricted Subsidiary or (y) the Fixed Charge Coverage Ratio of the Company on a pro forma basis is equal to or higher than such ratio immediately prior thereto, the fair market value of the Company's Investment in such Subsidiary as of the date of such redesignation; provided, further that any increase in the amount of Restricted Payments permitted to be incurred as a result of application of subparagraphs (iii), (iv) or (v) above related to dividends, returns of capital or redesignation of foreign joint ventures shall be reduced by the difference between (A) the fair market value of any equipment (as determined by sales by the Company of comparable equipment to unaffiliated third parties) transferred to such joint ventures in reliance on subparagraph (xii) of the covenant entitled "Transactions with Affiliates" and (B) the value received by the Company or any Restricted Subsidiary from such joint venture with respect to such equipment transfer. The foregoing provisions shall 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 aggregate redemption, repurchase, retirement, defeasance or other acquisition of any Equity Interests of the Company or subordinated Indebtedness of the Company or any Guarantors in exchange for, or out of the net cash proceeds received by of the Company from any issuance or substantially concurrent sale (other than to a Subsidiary of capital shares the Company) of, other Equity Interests of the Company subsequent to (other than any Disqualified Stock); provided that the Closing Dateamount of any such net cash proceeds that are utilized for any such redemption, repurchase, retirement, defeasance or other acquisition shall be excluded from clause (ii) of the preceding paragraph provided that no Default or Event of Default shall have occurred and be continuing immediately after such transaction; (iii) the aggregate defeasance, redemption, repurchase or other acquisition of subordinated Indebtedness with the net cash proceeds received from an incurrence of Permitted Refinancing Indebtedness; (iv) the payment of any dividend by a Restricted Subsidiary of the Company to the holders of its Equity Interests on a pro rata basis; (v) the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Parent, the Company or any Restricted Subsidiary of the Company held by any member of the Company's (or any of its Restricted Subsidiaries') management pursuant to any management agreement, stock option agreement or similar agreement; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall not exceed $5.0 million in the aggregate since the date of this Indenture (and shall be increased by the amount of any net cash proceeds to the Company from (x) sales of Equity Interests of the Parent to management employees subsequent to the date of this Indenture and (y) any "key-man" life insurance policies which are used to make such redemptions or repurchases) and no Default or Event of Default shall have occurred and be continuing immediately after such transaction; provided further, that the cancellation of Indebtedness owing to the Company from members of management of the Company or any of its Restricted Subsidiaries in connection with such a repurchase of Capital Stock of the Parent will not be deemed to constitute a Restricted Payment under this Indenture; (vi) the making of distributions, loans or advances to the Parent in an amount not to exceed $1.5 million per annum in order to permit the Parent to pay required and ordinary operating expenses of the Parent (including, without limitation, directors' fees, indemnification obligations, professional fees and expenses, but excluding any payments on or repurchases of the Seller Subordinated Note or the Seller Preferred Equity); (vii) distributions to the Parent to fund the required tax obligations of the Parent or its members related to income generated by the Company from and its Restricted Subsidiaries and taxable to such members, including the tax distributions contemplated by Article IV of the LLC Agreement as in effect on the date of this Indenture; (viii) repurchases of Capital Stock deemed to occur upon the exercise of stock options if such Capital Stock represents a portion of the exercise price thereof; (ix) distributions to the Parent to fund the Transactions; (x) distributions to the Parent to purchase or redeem the Seller Subordinated Note and the Seller Preferred Equity pursuant to change of control provisions contained in the governing instrument relating thereto; provided, however, that (x) no offer or purchase obligation may be triggered in respect of such Seller Subordinated Note or Seller Preferred Equity unless a corresponding obligation also arises with respect to the Notes and (y) in any issuance event, no repurchase or redemption of any such Seller Subordinated Note or Seller Preferred Equity may be consummated unless and until the Issuers shall have satisfied all repurchase obligations with respect to any required purchase offer made with respect to the Notes; provided, however, that such purchases or redemption of the Seller Subordinated Note or the Seller Preferred Equity shall be included in the calculation of the amount of Restricted Payments and provided that no Default or Event of Default shall have occurred and be continuing as a consequence thereof; and (xi) if no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof, other Restricted Payments in an aggregate amount not to exceed $5.0 million since the date of this Indenture. In addition, any dividend which is declared but not paid shall not be included in the calculation of Restricted Payments under clause (c), and any divided which is declared and paid shall be included only once in the calculation of Restricted Payments under clause (c). The amount of all Restricted Payments (other than cash) shall be the fair market value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall be determined by the Board of Managers of the Company whose resolution with respect thereto shall be delivered to the Trustee, such determination to be based upon an opinion or appraisal issued by an Independent Financial Advisor if such fair market value exceeds $15.0 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 this Section 4.7 were computed, together with a copy of any fairness opinion or appraisal required by this Indenture. The Board of Managers may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default. For purposes of making such determination, all outstanding Investments by the Company and its Restricted Subsidiaries (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 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. Any designation of an Unrestricted Subsidiary by the Board of Managers shall be evidenced to the Trustee by filing with the Trustee a certified copy of the resolution of the Board of Managers of the Company giving effect to such designation and an Officers' Certificate certifying that such designation complied with the terms of the Indenture governing the designation of Unrestricted Subsidiaries and was permitted by this Section 4.7. If, at any time, any Unrestricted Subsidiary fails to meet the foregoing requirements as an Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of the Indenture and any Indebtedness of the Company which has been converted into capital shares of the Company subsequent to the Closing Date, which amount shall be added to the Distribution Fund only after such conversion. Notwithstanding the foregoing, the Company may acquire its own capital shares for an aggregate amount from and after the Closing date equal to the greater of (x) the sum of (i) 25% of the Cumulative Combined Net Income of the Company subsequent to December 31, 1991, plus (ii) $500,000, or (y) the amount then available under the Distribution Fund, which amount shall be charged to the Distribution Fund. No Restricted Payment may be made in other than cash or securities which are actively traded on a nationally recognized public market and have a readily ascertainable market value (which value shall be the amount of such Restricted Payment), unless the Company shall have received a report from an independent recognized appraiser as to the fair value of the property to be distributed or transferred, in which case the amount of such Restricted Payment Subsidiary shall be deemed to be the greater of its fair value (as determined incurred by such appraiser) or its net book value on the books a Restricted Subsidiary of the CompanyCompany as of such date (and, if such Indebtedness is not permitted to be incurred as of such date under the covenant described under Section 4.9 hereof, the Company shall be in default of such covenant). Notwithstanding any The Board of Managers of the foregoing provisions Company may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided that such designation shall be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of the Company of any outstanding Indebtedness of such Unrestricted Subsidiary and such designation shall only be permitted if (i) such Indebtedness is permitted under Section 4.9 hereof calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period, (ii) such Subsidiary shall execute a Note Guarantee and deliver an Opinion of Counsel in accordance with the terms of this paragraph, neither the Company nor any Subsidiary Indenture and (iii) no Default or Affiliate shall make any Restricted Payment if at the time or after giving effect thereto, there shall exist any DefaultEvent of Default would be in existence following such designation.
Appears in 2 contracts
Sources: Indenture (Alliance Laundry Holdings LLC), Indenture (Alliance Laundry Holdings LLC)
Restricted Payments. Neither the The Company nor shall not, and shall not permit any of its Restricted Subsidiaries to, directly or Affiliates shall indirectly, (i) declare or pay any dividend or make any other payment or distribution on account of the Company's or any of its Restricted Subsidiaries' Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company) or to the direct or indirect holders of the Company's Equity Interests in their capacity as such (other than dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company); (ii) purchase, redeem or otherwise acquire or retire for value (including without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company (other than any such Equity Interests owned by the Company or any Wholly Owned Restricted Subsidiary of the Company); (iii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value, any Indebtedness that is subordinated to the Notes, except a payment of interest or principal at Stated Maturity; or (iv) make any Restricted Payment or Investment (all such payments and other actions set aside any funds therefor forth in clauses (i) through (iv) above being collectively referred to as "Restricted Payments"), unless, at the time of and after giving effect theretoto such Restricted Payment:
(a) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof;
(b) the Company would, at the aggregate time of such Restricted Payments for all Payment and after giving pro forma effect thereto as if such purposes subsequent Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Closing Consolidated Interest Coverage Ratio test set forth in Section 4.09 hereof; and
(c) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after the Series A/B Issue Date would not exceed (excluding Restricted Payments permitted by clauses (b), (c), (d) and (f), but including, without duplication, Restricted Payments permitted by clauses (a) and (e), of the next succeeding paragraph), is less than the sum (as in effect from time to time, hereinafter referred to as the "Distribution Fund") of (iA) 50% of the Company's Cumulative Combined Consolidated Net Income subsequent of the Company for the period (taken as one accounting period) from July 1, 1997 to December 31, 1991 so long as the end of the Company's Combined Tangible most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Worth Income for such period is greater than $31,051,000a deficit, less 100% of such deficit), plus (iiB) 100% of the aggregate of the net cash proceeds received by the Company from any issuance the issue or sale since the Series A/B Issue Date of capital shares Equity Interests of the Company subsequent to the Closing Date, and (iiiother than Disqualified Stock) the aggregate or of the net cash proceeds received by the Company from any issuance of any Indebtedness Disqualified Stock or debt securities of the Company which has that have been converted into capital shares such Equity Interests (other than any such Equity Interests, Disqualified Stock or convertible debt securities sold to a Restricted Subsidiary of the Company subsequent to the Closing Date, which amount shall be added to the Distribution Fund only after such conversion. Notwithstanding the foregoing, the Company may acquire its own capital shares for an aggregate amount from and after the Closing date equal to the greater of (x) the sum of (i) 25% of the Cumulative Combined Net Income of the Company subsequent to December 31, 1991other than Disqualified Stock or convertible debt securities that have been converted into Disqualified Stock), plus (iiC) $500,000to the extent that any Restricted Investment that was made after the Series A/B Issue Date is or was sold for cash or otherwise liquidated or repaid for cash, or the lesser of (y1) the amount then available under cash return of capital with respect to such Restricted Investment (less the Distribution Fundcost of disposition, which amount shall be charged to if any) and (2) the Distribution Fund. No Restricted Payment may be made in other than cash or securities which are actively traded on a nationally recognized public market and have a readily ascertainable market value (which value shall be the initial amount of such Restricted Payment)Investment, unless plus (D) in the Company shall have received event that any Unrestricted Subsidiary is redesignated as a report from Restricted Subsidiary, the lesser of (1) an independent recognized appraiser as amount equal to the fair value of the property to be distributed or transferred, Company's Investments in which case such Restricted Subsidiary and (2) the amount of such Restricted Payment shall be deemed to be the greater of its fair value (as determined Investments previously made by such appraiser) or its net book value on the books of the Company. Notwithstanding any of the foregoing provisions of this paragraph, neither the Company nor any Subsidiary or Affiliate shall make any and its Restricted Payment if at the time or after giving effect theretoSubsidiaries in such Unrestricted Subsidiary, there shall exist any Default.plus (E) $5.0
Appears in 2 contracts
Sources: Indenture (Trico Marine Services Inc), Indenture (Trico Marine Services Inc)
Restricted Payments. Neither the Company nor any of its Subsidiaries or Affiliates Issuer shall make any Restricted Payment or set aside any funds therefor unless, after giving effect thereto, the aggregate of such Restricted Payments for all such purposes subsequent to the Closing Date would not exceed the sum (as in effect from time to time, hereinafter referred to as the "Distribution Fund") of (i) 50% of the Company's Cumulative Combined Net Income subsequent to December 31, 1991 so long as the Company's Combined Tangible Net Worth is greater than $31,051,000, (ii) the aggregate of the net cash proceeds received by the Company from any issuance or sale of capital shares of the Company subsequent to the Closing Datemake, and (iii) the aggregate of the net cash proceeds received by the Company from shall not permit any issuance of any Indebtedness of the Company which has been converted into capital shares of the Company subsequent other Note Party to the Closing Datemake, which amount shall be added to the Distribution Fund only after such conversion. Notwithstanding the foregoingdirectly or indirectly, the Company may acquire its own capital shares for an aggregate amount from and after the Closing date equal to the greater of (x) the sum of (i) 25% of the Cumulative Combined Net Income of the Company subsequent to December 31, 1991, plus (ii) $500,000, or (y) the amount then available under the Distribution Fund, which amount shall be charged to the Distribution Fund. No Restricted Payment may be made in other than cash or securities which are actively traded on a nationally recognized public market and have a readily ascertainable market value (which value shall be the amount of such Restricted Payment), unless the Company shall have received a report from an independent recognized appraiser as to the fair value of the property to be distributed or transferred, in which case the amount of such Restricted Payment shall be deemed to be the greater of its fair value (as determined by such appraiser) or its net book value on the books of the Company. Notwithstanding any of the foregoing provisions of this paragraph, neither the Company nor any Subsidiary or Affiliate shall make any Restricted Payment if at the time or of, and after giving effect theretoto, there such proposed Restricted Payment,
(a) a Default or Event of Default shall exist have occurred and be continuing, or
(b) Issuer could not Incur at least $1.00 of additional Debt pursuant to Section 6.8(a)(i), or
(c) the Fixed Charge Coverage Ratio would be less than or equal to 3.00 to 1.00, or
(d) the aggregate amount of such Restricted Payment and all other Restricted Payments declared or made since the date hereof (the amount of any Default.Restricted Payment, if made other than in cash, to be based upon Fair Market Value at the time of such Restricted Payment) would exceed an amount equal to the sum of:
(i) 10% of the aggregate amount of Consolidated Net Income accrued during the period (treated as one accounting period) from the beginning of the first Fiscal Quarter beginning after the date hereof to the end of the most recent Fiscal Quarter ending prior to the date of such Restricted Payment (or if the aggregate amount of Consolidated Net Income for such period shall be a deficit, minus 100% of such deficit), plus
(ii) 100% of the Capital Stock Sale Proceeds, plus
(iii) the sum of:
(A) the aggregate net cash proceeds received by Issuer or any Subsidiary from the issuance or sale after the date hereof of convertible or exchangeable Debt that has been converted into or exchanged for Capital Stock (other than Disqualified Stock) of Issuer, and
(B) the aggregate amount by which Debt (other than Subordinated Debt) of Issuer or any Subsidiary is reduced on Issuer’s consolidated balance sheet on or after the date hereof upon the conversion or exchange of any Debt issued or sold on or prior to the date hereof that is convertible or exchangeable for Capital Stock (other than Disqualified Stock) of Issuer, excluding, in the case of clause (A) above:
Appears in 2 contracts
Sources: Note Purchase Agreement (Morgan Stanley), Note Purchase Agreement (Full Alliance International LTD)
Restricted Payments. Neither the Company nor Holdings shall not, and shall not permit any of its Restricted Subsidiaries to, directly or Affiliates shall indirectly: (i) declare or pay any dividend or make any other payment or distribution on account of Holdings' or any of its Subsidiaries' Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving Holdings or any of its Subsidiaries) or to the direct or indirect holders of Holdings' or any of its Subsidiaries' Equity Interests in their capacity as such (other than dividends or distributions payable in Qualified Capital Stock of Holdings or the Company); (ii) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving Holdings) any Equity Interests of Holdings or any direct or indirect parent of Holdings; (iii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness that is subordinated to the Debentures (other than intercompany Indebtedness), except a payment of interest or principal at stated maturity; or (iv) make any Restricted Payment or Investment (all such payments and other actions set aside any funds therefor forth in clauses (i) through (iv) above being collectively referred to as "Restricted Payments"), unless, at the time of and after giving effect theretoto such Restricted Payment:
(a) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof; and
(b) Holdings would, at the aggregate time of such Restricted Payments for all Payment and after giving pro forma effect thereto as if such purposes subsequent Restricted Payment had been made at the beginning of the applicable Four-Quarter Period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Closing Date would not exceed Consolidated Fixed Charge Coverage Ratio test set forth in the sum first paragraph of Section 4.09; and
(as in effect c) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by Holdings and its Restricted Subsidiaries after the date of this Indenture (excluding Restricted Payments permitted by clauses (3), (4) (but only to the extent such Restricted Payment is made with the cash proceeds received by Holdings or one of its Restricted Subsidiaries from time to timeany "key man" life insurance policies), hereinafter referred to as (5), (7), (8) and (9) of the "Distribution Fund") next succeeding paragraph), is less than the sum, without duplication, of (i) 50% of the Company's Cumulative Combined Consolidated Net Income subsequent of Holdings for the period (taken as one accounting period) from the beginning of the first fiscal quarter commencing after the date of this Indenture to December 31the end of Holdings' most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, 1991 so long as the Company's Combined Tangible if such Consolidated Net Worth Income for such period is greater than $31,051,000a deficit, less 100% of such deficit), plus (ii) 100% of the aggregate net proceeds (including the fair market value of property other than cash (determined in good faith by the net Management Committee as evidenced by a certificate filed with the Trustee, except that in the event the value of any non-cash proceeds consideration shall be $15.0 million or more, the value shall be determined based upon an opinion or appraisal issued by an accounting, appraisal or investment banking firm of national standing)) received by Holdings since the Company date of this Indenture as a contribution to its common equity capital or from any issuance the issue or sale of Equity Interests (other than Disqualified Stock) of Holdings (excluding any net proceeds from an Equity Offering or capital shares contribution to the extent used to redeem Debentures in accordance with the optional redemption provisions of the Company subsequent Debentures) or from the issue or sale of Disqualified Stock or debt securities of Holdings that have been converted into such Equity Interests (other than Equity Interests (or Disqualified Stock or convertible debt securities) sold to the Closing Datea Subsidiary of Holdings), and plus (iii) to the aggregate extent that any Restricted Investment that was made after the date of this Indenture is sold for cash or otherwise liquidated or repaid for cash, the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any), plus (iv) any dividends (the fair market value of property other than cash shall be determined in good faith by the Management Committee as evidenced by a certificate filed with the trustee, except that in the event the value of any non-cash consideration shall be $15.0 million or more, the value shall be determined based upon an opinion or appraisal issued by an accounting, appraisal or investment banking firm of national standing) received by Holdings or a Restricted Subsidiary after the date of this Indenture from any Unrestricted Subsidiary of Holdings, to the extent that such dividends were not otherwise included in Consolidated Net Income of Holdings for such period, plus (v) to the extent that any Unrestricted Subsidiary is redesignated as a Restricted Subsidiary after the date of this Indenture, if as a result of such redesignation, (x) the Fixed Charge Coverage Ratio of Holdings on a pro forma basis is lower than such ratio immediately prior thereto, then the lesser of (A) the fair market value of Holdings' Investment in such Subsidiary as of the net cash proceeds received by the Company from any issuance date of any Indebtedness such redesignation or (B) such fair market value as of the Company date on which has been converted into capital shares such Subsidiary was originally designated as an Unrestricted Subsidiary or (y) the Fixed Charge Coverage Ratio of Holdings on a pro forma basis is equal to or higher than such ratio immediately prior thereto, the fair market value of Holdings Investment in such Subsidiary as of the Company subsequent to the Closing Date, which amount shall be added to the Distribution Fund only after date of such conversionredesignation. Notwithstanding the foregoing, the Company provisions set forth in the immediately preceding paragraph will not prohibit (1) the payment of any dividend or the consummation of any irrevocable redemption within 60 days after the date of declaration of such dividend or notice of such redemption if the dividend or payment of the redemption price, as the case may acquire its own capital shares be, would have been permitted on the date of declaration or notice; (2) if no Event of Default shall have occurred and be continuing or shall occur as a consequence thereof, the acquisition of any Capital Stock of Holdings (the "Retired Capital Stock"), either (i) solely in exchange for Qualified Capital Stock of Holdings (the "Refunding Capital Stock"), or (ii) through the application of the net proceeds of a substantially concurrent sale for cash (other than to a Subsidiary of Holdings) of Qualified Capital Stock of Holdings, and, in the case of subclause (i) of this clause (2), if immediately prior to the retirement of the Retired Capital Stock the declaration and payment of dividends thereon was permitted under clause (3) of this paragraph, the declaration and payment of dividends on the Refunding Capital Stock in an aggregate amount from per year no greater than the aggregate amount of dividends per annum that was declarable and payable on such Retired Capital Stock immediately prior to such retirement; provided that at the time of the declaration of any such dividends on the Refunding Capital Stock, no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof; (3) if no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof, the declaration and payment of dividends to holders of any class or series of Designated Preferred Stock (other than Disqualified Stock) issued after the Closing date equal of this Indenture (including, without limitation, the declaration and payment of dividends on Refunding Capital Stock in excess of the dividends declarable and payable thereon pursuant to clause (2) of this paragraph); provided that, at the greater time of such issuance, Holdings, after giving effect to such issuance on a pro forma basis, would have had a Consolidated Fixed Charge Coverage Ratio of at least 1.75 to 1.0 for the most recent Four-Quarter Period; (4) the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of Holdings or any Subsidiary of Holdings held by any former member of the Holdings' (or any of its Subsidiaries') management committee or any former officer, employee or director of Holdings or any of its Subsidiaries pursuant to any equity subscription agreement, stock option agreement, employment agreement or other similar agreements; provided that (A) the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall not exceed (x) the sum of $1.5 million in any calendar year (iwith unused amounts in any calendar year being carried over to succeeding calendar years) 25% of the Cumulative Combined Net Income of the Company subsequent to December 31, 1991, plus (ii) $500,000, or (y) the amount then available under aggregate cash proceeds received by Holdings or the Distribution FundCompany during such calendar year from any reissuance of Equity Interests by Holdings or the Company to members of management of the Company and its Restricted Subsidiaries and (B) no Default or Event of Default shall have occurred and be continuing immediately after such transaction; provided, which amount further that the aggregate cash proceeds referred to in (y) above shall be charged excluded from clause (c)(ii) of the preceding paragraph; (5) if no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof, other Restricted Payments in an aggregate amount not to exceed $12.0 million since the date of this Indenture; (6) repurchases of Capital Stock deemed to occur upon the exercise of stock options if such Capital Stock represents a portion of the exercise price thereof; (7) distributions to the Distribution Fund. No Restricted Payment may be made in other than cash Current Owners to fund the Transactions and (8) so long as Holdings is treated as a partnership or securities which are actively traded on a nationally recognized public market and have a readily ascertainable market value (which value shall be the amount of such Restricted Payment)disregarded as an entity separate from its owners for federal income tax purposes, unless the Company shall have received a report from an independent recognized appraiser as distributions to the fair value partners of Holdings in an amount with respect to any period after June 30, 1998 not to exceed the property Tax Amount of Holdings for such period. The Management Committee may designate any Restricted Subsidiary to be distributed or transferredan Unrestricted Subsidiary if such designation would not cause a Default. For purposes of making such determination, all outstanding Investments by Holdings and its Restricted Subsidiaries (except to the extent repaid in which case cash) in the amount of such Restricted Payment shall Subsidiary so designated will be deemed to be Restricted Payments at the greater time of its 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 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 Restricted Payments (as determined by such appraiserother than cash) or its net book shall be the fair market value on the books date of the Company. Notwithstanding any Restricted Payment of the foregoing provisions of this paragraphasset(s) or securities proposed to be transferred or issued by Holdings or such Restricted Subsidiary, neither as the Company nor any Subsidiary or Affiliate shall make any case may be, pursuant to the Restricted Payment if at the time or after giving effect thereto, there shall exist any Default.Payment. 45
Appears in 2 contracts
Sources: Indenture (Anthony Crane Sales & Leasing Lp), Indenture (Anthony Crane Holdings Capital Corp)
Restricted Payments. Neither the Company nor The Borrower shall not and shall not permit any of its Subsidiaries to, declare, pay or Affiliates shall make, or offer to pay or make any Restricted Payment (directly or set aside indirectly through any Affiliate) except that so long as no Event of Default exists immediately prior to any Restricted Payment otherwise permitted below or would result therefrom (other than with respect of clause (ii) below): (i) the Borrower may repurchase, redeem or otherwise acquire shares of, or options to purchase, Capital Stock of the Borrower or stock appreciation rights from directors, officers and employees (or their legal representatives or heirs, as the case may be) of the Borrower or any Subsidiary of the Borrower whose employment has terminated or who has died or retired or become disabled, or who has suffered some other hardship and with respect to whom the Board of Directors of the Borrower has otherwise determined to make such a repurchase, redemption or other acquisition in light of such hardship or upon the vesting of stock appreciation rights; provided that, (a) the amounts paid in cash or other immediately available funds therefor unless, after giving effect thereto, the aggregate of in connection with such Restricted Payments for all such purposes subsequent to the Closing Date would shall not exceed $7,000,000 in the sum aggregate after the date hereof and (as b) the aggregate principal amount of Debt issued by the Borrower or any of its Subsidiaries to finance such Restricted Payments shall not exceed $5,000,000 in effect from the aggregate at any time to time, hereinafter referred to as the "Distribution Fund") of (i) 50% of the Company's Cumulative Combined Net Income subsequent to December 31, 1991 so long as the Company's Combined Tangible Net Worth is greater than $31,051,000, outstanding; (ii) the aggregate any Subsidiary of the net cash proceeds received by the Company from any issuance or sale Borrower may make Restricted Payments ratably among all of capital shares of the Company subsequent to the Closing Date, and its equity holders; (iii) the aggregate Capital Stock of North American Site Developers, Inc. owned by ▇▇▇▇▇▇▇ may be redeemed, repurchased or otherwise acquired for an amount not greater than $50,000 as part of the net cash proceeds received by the Company from any issuance of any Indebtedness of the Company which has been converted into capital shares of the Company subsequent to the Closing Date, which amount shall be added to the Distribution Fund only after such conversion. Notwithstanding the foregoing, the Company may acquire its own capital shares for an aggregate amount from NASI Restructuring and after the Closing date equal to the greater of (xiv) the sum of (i) 25% of Borrower may make Restricted Payments not to exceed $5,000,000 in the Cumulative Combined Net Income of the Company subsequent to December 31, 1991, plus (ii) $500,000, or (y) the amount then available under the Distribution Fund, which amount shall be charged to the Distribution Fund. No Restricted Payment may be made in other than cash or securities which are actively traded on a nationally recognized public market and have a readily ascertainable market value (which value shall be the amount of aggregate for all such Restricted Payment), unless the Company shall have received a report from an independent recognized appraiser as to the fair value of the property to be distributed or transferred, in which case the amount of such Restricted Payment shall be deemed to be the greater of its fair value (as determined by such appraiser) or its net book value on the books of the Company. Notwithstanding Payments made during any of the foregoing provisions of this paragraph, neither the Company nor any Subsidiary or Affiliate shall make any Restricted Payment if at the time or after giving effect thereto, there shall exist any Defaultfiscal year.
Appears in 2 contracts
Sources: Credit Agreement (Great Lakes Dredge & Dock CORP), Credit Agreement (Great Lakes Dredge & Dock CORP)
Restricted Payments. Neither the Company Borrower nor any of its Subsidiaries shall declare or Affiliates shall make any Restricted Payment or set aside any funds therefor unlessPayment, after giving effect thereto, the aggregate of such Restricted Payments for all such purposes subsequent to the Closing Date would not exceed the sum (as in effect from time to time, hereinafter referred to as the "Distribution Fund") of except:
(i) 50% the defeasance, redemption, repurchase or prepayment of any Permitted Subordinated Indebtedness with the Company's Cumulative Combined Net Income subsequent to December 31, 1991 so long as the Company's Combined Tangible Net Worth is greater than $31,051,000, net cash proceeds of Permitted Refinancing Indebtedness;
(ii) the defeasance, redemption, repurchase or prepayment of any Permitted Subordinated Indebtedness; PROVIDED the aggregate amount so defeased, redeemed, repurchased or prepaid after the Closing Date shall not exceed an amount equal to ten percent (10%) of the net cash proceeds received by the Company from any issuance or sale of capital shares of the Company subsequent to the Closing Date, and Aggregate Commitment;
(iii) in connection with the repurchase, redemption or other acquisition or retirement for value of any Equity Interests; PROVIDED, that the aggregate purchase price of all such repurchased, redeemed, acquired or retired Equity Interests shall not exceed $1,000,000 in the aggregate since the Closing Date or such larger amount as may be agreed to by the Required Lenders; and
(iv) where the consideration therefor consists solely of Equity Interests (but excluding Disqualified Stock) of the net cash proceeds received by Borrower or its Subsidiaries provided no Change of Control would occur as a result thereof; PROVIDED, HOWEVER, that the Company from any issuance of any Indebtedness of the Company which has been converted into capital shares of the Company subsequent to the Closing Date, which amount shall be added to the Distribution Fund only after such conversion. Notwithstanding the foregoing, the Company may acquire its own capital shares for an aggregate amount from and after the Closing date equal to the greater of (x) the sum of (i) 25% of the Cumulative Combined Net Income of the Company subsequent to December 31, 1991, plus (ii) $500,000, or (y) the amount then available under the Distribution Fund, which amount shall be charged to the Distribution Fund. No Restricted Payment may be made Payments described in other than cash or securities which are actively traded on a nationally recognized public market and have a readily ascertainable market value (which value shall be the amount of such Restricted PaymentCLAUSES(I), unless the Company (II) and (III) above shall not be permitted if either a Default shall have received a report from an independent recognized appraiser as to the fair value of the property to occurred and be distributed or transferred, in which case the amount of such Restricted Payment shall be deemed to be the greater of its fair value (as determined by such appraiser) or its net book value on the books of the Company. Notwithstanding any of the foregoing provisions of this paragraph, neither the Company nor any Subsidiary or Affiliate shall make any Restricted Payment if continuing at the time date of declaration or after giving effect thereto, there shall exist any Defaultpayment thereof or would result therefrom.
Appears in 2 contracts
Sources: Credit Agreement (Landcare Usa Inc), Credit Agreement (Transportation Components Inc)
Restricted Payments. Neither the The Company nor shall not, and shall not permit any of its Restricted Subsidiaries to, directly or Affiliates shall indirectly, (i) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or any of its Restricted Subsidiaries (other than any such Equity Interests owned by the Company or any of its Restricted Subsidiaries); (ii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value, any Indebtedness that is subordinated in right of payment to the Notes or the Subsidiary Guarantees, as the case may be, except a payment of interest or principal at Stated Maturity; or (iii) make any Restricted Payment or Investment (all such payments and other actions set aside any funds therefor forth in clauses (i) through (iii) above being collectively referred to as “Restricted Payments”), unless, at the time of and after giving effect theretoto such Restricted Payment:
(a) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof;
(b) the Company would, at the aggregate time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least €1.00 of additional Indebtedness pursuant to the Consolidated Interest Coverage Ratio test set forth in Section 4.09 hereof; and
(c) such Restricted Payment, together with (x) the aggregate amount of all other Restricted Payments for made by the Company and its Restricted Subsidiaries after the Reference Date (excluding Restricted Payments permitted by clauses (b) through (e) and, to the extent deducted in computing Consolidated Net Income, (f) and (g) of the next succeeding paragraph), and (y) the aggregate amount of all such purposes dividends and other payments or distributions paid subsequent to the Closing Reference Date would on account of the Company’s or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any such payment in connection with any merger or consolidation involving the Company) or to the direct or indirect holders of the Company’s Equity Interests in their capacity as such (other than (i) dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company, (ii) dividends or distributions payable to the Company or any of its Restricted Subsidiaries or (iii) if the Restricted Subsidiary making such dividend is not exceed a Wholly Owned Restricted Subsidiary, dividends to its shareholders on a pro rata basis), is less than the sum (as in effect from time to time, hereinafter referred to as the "Distribution Fund"without duplication) of the following: (iA) 50% of the Company's Cumulative Combined cumulative Consolidated Net Income subsequent of the Company for the period (taken as one accounting period) from January 1, 2005 to December 31, 1991 so long as the end of the Company's Combined Tangible ’s most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Worth Income for such period is greater than $31,051,000a deficit, less 100% of such deficit), plus (iiB) 100% of the aggregate of (1) the aggregate net cash proceeds and (2) the fair market value of Strategic Assets transferred or conveyed to the Company (as valued at the time of transfer or conveyance to the Company, and as determined in the manner contemplated by the definition of the term “fair market value”), in each case received by the Company since the Reference Date as a contribution to its common equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified Stock) or from the issuance or sale of Disqualified Stock or debt securities of the Company that have been converted into, or exchanged or redeemed for, such Equity Interests (other than any such Equity Interests, Disqualified Stock or convertible debt securities sold to a Restricted Subsidiary of the Company and other than Disqualified Stock or convertible debt securities that have been converted into, or exchanged or redeemed for, Disqualified Stock), plus (C) to the extent that any Restricted Investment that was made after the Reference Date is sold for cash or otherwise liquidated or repaid for cash, the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any) plus (D) if any Unrestricted Subsidiary is redesignated as a Restricted Subsidiary, the lesser of (1) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Subsidiary as of the date of redesignation and (2) the amount of such Investments. The foregoing provisions will not prohibit any of the following:
(a) 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;
(b) the redemption, repurchase, retirement, defeasance or other acquisition of any subordinated Indebtedness of the Company or any Guarantor or any Equity Interests of the Company or any of its Restricted Subsidiaries in exchange for, or out of the net cash proceeds received by of the Company from any issuance or substantially concurrent sale (other than to a Restricted Subsidiary of capital shares the Company) of, other Equity Interests of the Company subsequent to (other than any Disqualified Stock); provided that the Closing Dateamount of any such net cash proceeds that are utilized for any such redemption, and purchase, retirement, defeasance or other acquisition shall be excluded from clause (iiic)(B) of the preceding paragraph;
(c) the aggregate defeasance, redemption, purchase, retirement or other acquisition of subordinated Indebtedness of the Company or any Guarantor with the net cash proceeds received from an incurrence of, or in exchange for, Permitted Refinancing Indebtedness;
(d) the payment of any dividend or distribution by a Restricted Subsidiary of the Company to the Company or any of its Restricted Subsidiaries;
(e) 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 stock options;
(f) so long as no Default has occurred and is continuing, the repurchase or other acquisition for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company for allocation (as a free allocation or otherwise) to directors, officers and employees of the Company and its Restricted Subsidiaries not in excess of €2,500,000 in any twelve-month period;
(g) so long as no Default has occurred and is continuing, the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company held by any member of the Company’s (or any of its Restricted Subsidiaries’) management pursuant to any management equity subscription agreement or stock option agreement in effect as of the Issue Date; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall not exceed €1,000,000 in any twelve-month period;
(h) loans or advances in the ordinary course of business to Affiliates or Persons with which the Company or a Subsidiary may have contractual arrangements in any jurisdiction reasonably necessary to be made in connection with conducting the business of the Company or a Subsidiary in such jurisdiction in a form that is customary to address foreign investment regulation or practice in such jurisdiction, in an aggregate amount not to exceed €2,000,000 outstanding at any one time;
(i) so long as no Default has occurred and is continuing, advances constituting Investments or loans to directors, officers and employees of the Company and its Restricted Subsidiaries in the ordinary course of business for bona fide business purposes not in excess of €1,000,000 at any one time outstanding; and
(j) other Restricted Payments not to exceed €15,000,000 in the aggregate. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default (except at any time during which the Company maintains Investment Grade Status). For purposes of making such designation, all outstanding Investments by the Company from any issuance of any Indebtedness of and its Restricted Subsidiaries in the Company which has been converted into capital shares of the Company subsequent to the Closing Date, which amount shall be added to the Distribution Fund only after such conversion. Notwithstanding the foregoing, the Company may acquire its own capital shares for an aggregate amount from and after the Closing date equal to the greater of (x) the sum of (i) 25% of the Cumulative Combined Net Income of the Company subsequent to December 31, 1991, plus (ii) $500,000, or (y) the amount then available under the Distribution Fund, which amount shall be charged to the Distribution Fund. No Restricted Payment may be made in other than cash or securities which are actively traded on a nationally recognized public market and have a readily ascertainable market value (which value shall be the amount of such Restricted Payment), unless the Company shall have received a report from an independent recognized appraiser as to the fair value of the property to be distributed or transferred, in which case the amount of such Restricted Payment Subsidiary so designated shall be deemed to be Restricted Payments at the greater time of its such designation, in an amount equal to the fair market value (as determined by of such appraiser) or its net book value on Investments at the books time of such designation. Such designation shall only be permitted if such Restricted Payments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of “Unrestricted Subsidiary.” The Board of Directors may also redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if such redesignation complies with the requirements described in the definition of “Unrestricted Subsidiary.” If the aggregate amount of all Restricted Payments calculated for purposes of the Company. Notwithstanding any first paragraph of this Section 4.07 includes an Investment in an Unrestricted Subsidiary that subsequently becomes a Restricted Subsidiary pursuant to the foregoing provisions terms of this paragraph, neither then the aggregate amount of such Restricted Payments shall be reduced by the lesser of (a) an amount equal to the fair market value of the Investments previously made by the Company nor any and its Restricted Subsidiaries in such Unrestricted Subsidiary or Affiliate shall make any Restricted Payment if at the time it becomes a Restricted Subsidiary and (b) the amount of such Investments. Any designation or after redesignation of a Subsidiary shall be evidenced to the Trustee by filing with the Trustee a Board Resolution giving effect theretoto such action and evidencing the valuation of any Investment relating thereto (as determined in good faith by the Board of Directors) and an Officers’ Certificate certifying that such action 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, there as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall exist any Defaultbe 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.
Appears in 2 contracts
Sources: Indenture (CGG), Indenture (CGG Holding B.V.)
Restricted Payments. Neither Declare or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, or issue or sell any Equity Interests or accept any capital contributions, except that, so long as no Default or Event of Default (other than in respect of Restricted Payments made pursuant to paragraphs (a), (b) and (d) of this Section, which shall not be subject to the Company nor requirement that no Default or Event of Default be then continuing) shall have occurred and be continuing at the time of any action described below or would result therefrom:
(a) each Subsidiary may make Restricted Payments to the Borrower or any Guarantor (other than Holdings);
(b) the Borrower and each Subsidiary may declare and make dividend payments or other distributions payable solely in the common stock or other common Equity Interests of such Person;
(c) payments to Holdings to permit Holdings, and the substantially concurrent use of such payments by Holdings, to repurchase or redeem (or to make distributions to any direct or indirect parent of Holdings to repurchase or redeem) Qualified Capital Stock of Holdings, or the direct or indirect parents of Holdings, in each case held by current, future or former officers, directors members of management, consultants or employees (or their respective heirs, family members, spouses, domestic partners, former spouses, former domestic partners or estates) of any Loan Party; provided that the aggregate amount of payments to Holdings shall not exceed, in any period of twelve (12) consecutive months, $500,000 and, in the aggregate during the term of this Agreement, $1,000,000; provided, further that that the amount of any payment permitted pursuant to this Section 7.06(c) shall be reduced dollar-for-dollar by the amount of any Indebtedness incurred pursuant to Section 7.02(s);
(i) to the extent actually used substantially concurrently by Holdings to pay (or to make distributions to any direct or indirect parent of Holdings to pay) such taxes, costs and expenses, payments by the Borrower to or on behalf of Holdings in an amount sufficient to pay franchise taxes and other fees required to maintain the legal existence of Holdings, (ii) payments by the Borrower to or on behalf of Holdings in an amount sufficient to pay out-of-pocket legal, accounting and filing costs and other expenses in the nature of overhead in the ordinary course of business of Holdings, in the case of preceding clauses (i) and (ii) in an aggregate amount not to exceed $1,000,000 in any period of twelve (12) consecutive months, (iii) distributions to Holdings to pay (or to make distributions to any direct or indirect parent of Holdings to pay) operating expenses in the ordinary course and other corporate overhead (in each case, to the extent attributable to the assets, income or activities of the Borrower and its Subsidiaries) and (iv) distributions to Holdings (or to make distributions to any direct or indirect parent of Holdings to pay) to pay expenses of debt or equity offerings, provided that, as to clauses (iii) and (iv), that the aggregate amount of payments under clauses (iii) and (iv) shall not exceed $2,500,000;
(e) Permitted Tax Distributions by the Borrower to Holdings (or the direct or indirect holders of the Equity Interests of Holdings), so long as (i) Holdings (or the direct or indirect holders of the Equity Interests of Holdings) uses such distributions substantially concurrently to pay its Taxes, (ii) such Taxes are attributable to the assets, income or activities of the Borrower and its Subsidiaries and (iii) any refunds related to any such Permitted Tax Distribution received by Holdings (or Affiliates the direct or indirect holders of the Equity Interests of Holdings) shall make promptly be returned by Holdings to the Borrower;
(f) Restricted Payments in an aggregate amount outstanding not to exceed the Cumulative Credit Availability as of the time such Restricted Payments were made; provided that no such payments will be permitted under this Section 7.06(f) unless at the time that any such Restricted Payment or set aside any funds therefor unless, is made (and immediately after giving effect thereto), (i) Holdings shall be in compliance, on a Pro Forma Basis, with a Consolidated Total Lease Adjusted Leverage Ratio of not more than 4.50:1.00, for the aggregate most recent Measurement Period for which financial statements are available, and (ii) prior to the payment or making of such Restricted Payments for all such purposes subsequent Payments, Holdings or the Borrower shall have delivered to the Closing Date would not exceed Administrative Agent a certificate executed by the sum chief financial officer, demonstrating in reasonable detail (as in effect from time including all applicable calculations) (1) (x) the amount of Cumulative Credit Availability immediately prior to timesuch Restricted Payment and the amount thereof to be so applied, hereinafter referred and (y) permitted pursuant to as this Section 7.06(f), and (2) the "Distribution Fund"Consolidated Total Lease Adjusted Leverage Ratio required pursuant to the preceding clause (i);
(g) of after an IPO, (i) 50% any Restricted Payment by the Borrower or any other direct or indirect parent of the Company's Cumulative Combined Net Income subsequent Borrower to December 31, 1991 pay listing fees and other costs and expenses attributable to being a publicly traded company and (ii) Restricted Payments of up to 6.0% per annum of the net proceeds received by (or contributed to) Holdings and its Subsidiaries from such IPO; and
(h) Repurchases of Equity Interests from employees deemed to occur upon the exercise of stock options or warrants by the applicable employee if such Equity Interests represent a portion of the exercise price of tax withholding obligation of such options or warrants and approved by the Board of Directors so long as the Company's Combined Tangible Net Worth is greater than $31,051,000exercise of such stock option or warrant would not give rise to a Change of Control; provided, (ii) the aggregate of the net cash proceeds received by the Company from any issuance or sale of capital shares of the Company subsequent to the Closing Date, and (iii) the aggregate of the net cash proceeds received by the Company from any issuance of any Indebtedness of the Company which has been converted into capital shares of the Company subsequent to the Closing Date, which amount shall be added to the Distribution Fund only after such conversion. Notwithstanding the foregoing, the Company may acquire its own capital shares for an aggregate amount from and after the Closing date equal to the greater of (x) the sum of (i) 25% of the Cumulative Combined Net Income of the Company subsequent to December 31, 1991, plus (ii) $500,000, or (y) that the amount then available under the Distribution Fund, which amount shall be charged to the Distribution Fund. No of Restricted Payment Payments that may be made in other than cash or securities which are actively traded on for a nationally recognized public market particular purpose pursuant to Sections 7.06(c) through and have a readily ascertainable market value (which value including 7.06(e) shall be reduced dollar-for-dollar by the amount of any such Restricted Payment), unless payments made for such purpose in the Company shall have received a report from form of an independent recognized appraiser as to intercompany loan by the fair value of the property to be distributed Borrower or transferred, in which case the amount of such Restricted Payment shall be deemed to be the greater one of its fair value (as determined by such appraiser) or its net book value on the books of the Company. Notwithstanding any of the foregoing provisions of this paragraph, neither the Company nor any Subsidiary or Affiliate shall make any Restricted Payment if at the time or after giving effect thereto, there shall exist any DefaultSubsidiaries to Holdings pursuant to Section 7.03(n).
Appears in 2 contracts
Sources: Credit Agreement (Bojangles', Inc.), Credit Agreement (Bojangles', Inc.)
Restricted Payments. Neither the The Company nor shall not, and shall not permit any of its Restricted Subsidiaries to, directly or Affiliates shall indirectly: (a) declare or pay any dividend or make any other payment or distribution on account of the Company's or any of its Restricted Subsidiaries' Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company or any of its Restricted Subsidiaries) or to the direct or indirect Holders of the Company's or any of its Restricted Subsidiaries' Equity Interests in their capacity as such (other than dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company or any Restricted Subsidiary of the Company or payable to the Company or a Restricted Subsidiary of the Company); (b) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or any Restricted Subsidiary of the Company held by any Person (other than the Company or any of its Wholly Owned Restricted Subsidiaries); (c) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness that is subordinated to the Notes or the Note Guarantees, except a payment of interest or principal and premium, if any, at the Stated Maturity thereof; or (d) make any Restricted Payment or Investment (all such payments and other actions set aside any funds therefor forth in these clauses (a) through (d) being collectively referred to as "Restricted Payments"), unless, at the time of and after giving effect thereto, the aggregate to such Restricted Payment:
(i) no Default or Event of Default has occurred and is continuing or would occur as a consequence of such Restricted Payments for all Payment; and
(ii) the Company would, at the time of such purposes subsequent Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Closing Date would not exceed Fixed Charge Coverage Ratio test set forth in the sum first paragraph of Section 4.09 hereof; and
(as in effect from time to timeiii) such Restricted Payment, hereinafter referred to as together with the "Distribution Fund"aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after the date of this Indenture (excluding Restricted Payments permitted by clauses (b), (c) and (d) of the next succeeding paragraph), is less than the sum, without duplication, of: (i1) 50% of the Company's Cumulative Combined Consolidated Net Income subsequent of the Company for the period (taken as one accounting period) from the beginning of the first fiscal quarter commencing after the date of this Indenture to December 31, 1991 so long as the end of the Company's Combined Tangible most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Worth Income for such period is greater than $31,051,000a deficit, less 100% of such deficit), plus (ii2) 100% of the aggregate of the net cash proceeds received by the Company since the date of this Indenture as a contribution to its common equity capital or from any issuance the issue or sale of capital shares Equity Interests of the Company subsequent (other than Disqualified Stock) or from the issue or sale of convertible or exchangeable Disqualified Stock or convertible or exchangeable debt securities of the Company that have been converted into or exchanged for such Equity Interests (other than Equity Interests (or Disqualified Stock or debt securities) sold to a Subsidiary of the Company), plus (3) (A) to the Closing Dateextent that any Restricted Investment that was made after the date of this Indenture is sold for cash or otherwise liquidated or repaid for cash for an amount in excess of the initial amount of such Restricted Investment, the sum of (x) 50% of the cash proceeds with respect to such Restricted Investment in excess of the aggregate amount invested in such Restricted Investment (less the cost of disposition, if any) and (y) the aggregate amount invested in such Restricted Investment, and (B) to the extent that any such Restricted Investment is sold for cash or otherwise liquidated or repaid in cash for an amount equal to or less than the initial amount of such Restricted Investment, the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any); provided that the amount of any Net Proceeds that are applied to repurchase the Notes pursuant to Section 4.15(c) shall be excluded from this clause (iii) (3) to the aggregate extent otherwise includible; plus (4) 50% of the net cash proceeds any dividends received by the Company or a Restricted Subsidiary after the date of this Indenture from any issuance an Unrestricted Subsidiary of any Indebtedness the Company, to the extent that such dividends were not otherwise included in Consolidated Net Income of the Company which has been converted into capital shares for such period, plus (5) to the extent that any Unrestricted Subsidiary of the Company subsequent to is redesignated as a Restricted Subsidiary after the Closing Date, which amount shall be added to the Distribution Fund only after such conversion. Notwithstanding the foregoingdate of this Indenture, the Company may acquire its own capital shares for an aggregate amount from and after the Closing date equal to the greater lesser of (x) the sum of (i) 25% fair market value of the Cumulative Combined Net Income Company's Investment in such Subsidiary as of the Company subsequent to December 31, 1991, plus (ii) $500,000, date of such redesignation or (y) such fair market value as of the amount then available under date on which such Subsidiary was originally designated as an Unrestricted Subsidiary. So long as no Default has occurred and is continuing or would be caused thereby, the Distribution Fundpreceding provisions shall not prohibit: (a) the payment of any dividend within 60 days after the date of declaration of the dividend, which amount shall be charged if at the date of declaration the dividend payment would have complied with the provisions of this Indenture; (b) the defeasance, redemption, repurchase or other acquisition of subordinated Indebtedness of the Company or any Restricted Subsidiary with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness; (c) the payment of any dividend by a Restricted Subsidiary of the Company to the Distribution Fundholders of its Equity Interests on a pro rata basis; and (d) 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 member of the Company's (or any of its Restricted Subsidiaries') management pursuant to any management equity subscription agreement, stock option agreement or similar agreement; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may not exceed $250,000 in any twelve-month period. No The amount of all Restricted Payment may be made in Payments (other than cash or securities which are actively traded on a nationally recognized public market and have a readily ascertainable market value (which value cash) shall be the amount 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 assets or securities that are required to be valued by this Section 4.07 shall be determined by the Board of Directors in good faith, unless whose resolution with respect thereto shall be delivered to the Trustee. The Board of Directors' determination must be based upon an opinion or appraisal issued by an accounting, appraisal or investment banking firm of national standing if the fair market value exceeds $3.0 million. Not later than the date of making any Restricted Payment, the Company shall have received a report from an independent recognized appraiser as deliver to the fair value of the property to be distributed or transferred, in which case the amount of Trustee an Officers' Certificate stating that such Restricted Payment shall be deemed to be is permitted and setting forth the greater basis upon which the calculations required by this Section 4.07 were computed, together with a copy of its fair value (as determined any fairness opinion or appraisal required by such appraiser) or its net book value on the books of the Company. Notwithstanding any of the foregoing provisions of this paragraph, neither the Company nor any Subsidiary or Affiliate shall make any Restricted Payment if at the time or after giving effect thereto, there shall exist any DefaultIndenture.
Appears in 2 contracts
Sources: Indenture (Assisted Living Concepts Inc), Indenture (Assisted Living Concepts Inc)
Restricted Payments. Neither the Company nor Holdings shall not, and shall not permit any of its Restricted Subsidiaries to, directly or Affiliates shall indirectly: (i) declare or pay any dividend or make any distribution on account of Holdings' or any of its Restricted Subsidiaries' Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving Holdings) (other than dividends or distributions payable in Equity Interests (other than Disqualified Stock) of Holdings or dividends or distributions payable to Holdings or any Wholly Owned Subsidiary of Holdings); (ii) purchase, redeem or otherwise acquire or retire for value any Equity Interests of Holdings or any direct or indirect parent of Holdings or other Affiliate or Restricted Subsidiary of Holdings; (iii) make any principal payment on, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness that is subordinated to the Exchange Debentures, except in accordance with the scheduled mandatory redemption or repayment provisions set forth in the original documentation governing such Indebtedness (but not pursuant to any mandatory offer to repurchase upon the occurrence of any event); or (iv) make any Restricted Payment or Investment (all such payments and other actions set aside any funds therefor forth in clauses (i) through (iv) above being collectively referred to as "Restricted Payments"), unless, at the time of and after giving effect theretoto such Restricted Payment:
(a) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof;
(b) Holdings would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 4.10; and
(c) such Restricted Payment, together with the aggregate of such all other Restricted Payments for all such purposes subsequent to made by Holdings and its Restricted Subsidiaries after the Closing Date would not exceed date of this Indenture, is less than the sum (as in effect from time to timeof, hereinafter referred to as the "Distribution Fund") of without duplication, (i) 50% of the Company's Cumulative Combined Net Income subsequent to December 31, 1991 so long as the Company's Combined Tangible Net Worth is greater than $31,051,000, (ii) the aggregate of the net cash proceeds received by the Company from any issuance or sale of capital shares of the Company subsequent to the Closing Date, and (iii) the aggregate of the net cash proceeds received by the Company from any issuance of any Indebtedness of the Company which has been converted into capital shares of the Company subsequent to the Closing Date, which amount shall be added to the Distribution Fund only after such conversion. Notwithstanding the foregoing, the Company may acquire its own capital shares for an aggregate amount from and after the Closing date equal to the greater of (x) the sum of (i) 25% of the Cumulative Combined Consolidated Net Income of Holdings for the Company subsequent period (taken as one accounting period) from the beginning of the first fiscal quarter commencing after the date of this Indenture to December 31the end of Holdings' most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, 1991if such Consolidated Net Income for such period is a deficit, less 100% of such deficit), plus (ii) $500,000to the extent not included in the amount described in clause (i) above, 100% of the aggregate net cash proceeds received after the date of this Indenture by Holdings from the issue or sale of, or from additional capital contributions in respect of, Equity Interests of Holdings or of debt securities of Holdings that have been converted into, or cancelled in exchange for, Equity Interests of Holdings (y) the amount then available under the Distribution Fund, which amount shall be charged to the Distribution Fund. No Restricted Payment may be made in other than cash Equity Interests (or convertible debt securities) sold to a Restricted Subsidiary or an Unrestricted Subsidiary of Holdings and other than Disqualified Stock or debt securities which are actively traded on a nationally recognized public market that have been converted into Disqualified Stock and have a readily ascertainable market value (which value shall be less the amount of such Restricted Paymentany loans made pursuant to clause (vi) of the next succeeding paragraph), unless plus (iii) 100% of any cash dividends received by Holdings or a Wholly Owned Subsidiary after the Company shall have received a report date of the Indenture from an independent recognized appraiser as to the fair value Unrestricted Subsidiary of Holdings, plus (iv) 100% of the property to be distributed or transferred, in which case cash proceeds realized upon the sale of any Unrestricted Subsidiary (less the amount of any reserve established for purchase price adjustments and less the maximum amount of any indemnification or similar contingent obligation for the benefit of the purchaser, any of its Affiliates or any other third party in such sale, in each case as adjusted for any permanent reduction in any such amount on or after the date of such sale, other than by virtue of a payment made to such Person) following the date of this Indenture, plus (v) to the extent that any Restricted Investment that was made after the date of this Indenture is sold to an unaffiliated purchaser for cash or otherwise liquidated or repaid for cash, the cash proceeds realized with respect to such Restricted Payment Investment (less the cost of disposition, if any). The foregoing provisions shall 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 making of any Restricted Investment in exchange for, or out of the proceeds of, the substantially concurrent sale (other than to a Subsidiary of Holdings) of, or from substantially concurrent additional capital contributions in respect of, Equity Interests of Holdings (other than Disqualified Stock); (iii) the redemption, repurchase, retirement or other acquisition of any Equity Interests of Holdings in exchange for, or out of the proceeds of, the substantially concurrent sale (other than to a Subsidiary of Holdings) of, or from substantially concurrent additional capital contributions in respect of, other Equity Interests of Holdings (other than any Disqualified Stock); (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 Holdings) of, or from substantially concurrent additional capital contributions in respect of, Equity Interests of Holdings (other than Disqualified Stock); (v) the declaration or payment of any dividend to Holdings for, or the direct repurchase, redemption or other acquisition or retirement for value of any Equity Interests of Holdings or any Restricted Subsidiary of Holdings held by any member of Holdings' (or any of its Restricted Subsidiaries') management pursuant to any management agreement, stock option agreement or plan or stockholders agreement; provided that (X) the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall not exceed $2.0 million in any fiscal year (plus any amount available for such payments hereunder since the date of this Indenture which have not been used for such purpose) or (Y) $8.0 million in the aggregate (in each case, net of the cash proceeds received by Holdings from subsequent reissuances of such Equity Interests to new members of management); (vi) loans to members of management of Holdings or any Restricted Subsidiary the proceeds of which are used for a concurrent purchase of Equity Interests of Holdings and a capital contribution in an amount equal to such proceeds to Holdings; (vii) payments in connection with the application of the net proceeds of the Recapitalization as set forth under "Use of Proceeds" in the Offering Memorandum; (viii) payments to Holdings in respect of accounting, legal or other administrative expenses incurred by Holdings relating to the operations of Holdings in the ordinary course of business and in respect of fees and related expenses associated with registration statements filed with the Commission and subsequent ongoing public reporting requirements arising from the issuance of the Holdings' guarantee of the Senior Notes, the Senior Preferred Stock and the Exchange Debentures; provided that the aggregate amount of such payments does not exceed $500,000 in any fiscal year; (ix) so long as Holdings files consolidated income tax returns which include Anvil, payments to Holdings in an amount equal to the amount of income tax that Anvil would have paid if it had filed consolidated tax returns on a separate-company basis; (x) payments of director's fees and the reasonable expenses of its directors in an aggregate amount not to exceed $125,000 per year (including indemnification obligations and professional fees and expenses) by Holdings and payments to Holdings in respect thereof; (xi) payments to Holdings in an amount not to exceed $200,000 in aggregate to enable Holdings to make payments to holders of its Capital Stock in lieu of issuing fractional shares thereof; (xii) any payments on the Senior Preferred Stock in connection with the exchange thereof into Exchange Debentures; (xiii) the acquisition and issuance of Senior Preferred Stock by Holdings in connection with the exchange offer contemplated by the Registration Rights Agreement; (xiv) the making of any principal payment on, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness that is subordinated to the Exchange Debentures out of Excess Proceeds available for general corporate purposes after consummation of purchases of Exchange Debentures pursuant to an Asset Sale Offer; (xv) the declaration and payment of any dividend or the making of any other distribution for the purpose of funding any payment in respect of or repurchase or redemption of the Senior Preferred Stock or the Exchange Debentures; and (xvi) the repurchase of the Senior Preferred Stock or the Exchange Debentures in connection with an offer required to be made therefor in connection with a Change of Control provided that Anvil has previously paid all amounts required to be paid in connection with any Change of Control Offer for the Senior Notes; provided however that in the case of any transaction described in clauses (i), (ii), (iii), (iv) and (v) no Default or Event of Default will have occurred and be continuing immediately after such transaction. In determining the aggregate amount of Restricted Payments made after the date of hereof, 100% of the amounts expended pursuant to the foregoing clauses (ii), (iii), (iv)(Y), (v) and (vi) shall be included in such calculation and none of the amounts expended pursuant to the foregoing clauses (i), (iv)(X), (vii), (viii), (ix), (x), (xi), (xii), (xiii), (xiv), (xv) and (xvi) shall be included in such calculation. As of the date of this Indenture, all of Holdings' Subsidiaries were Restricted Subsidiaries. The Board of Directors may designate any Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default. For purposes of making such determination, all outstanding Investments by Holdings and its Restricted Subsidiaries (except to the extent repaid in cash) in the Subsidiary so designated shall be deemed to be Restricted Payments at the time of such designation and shall reduce the amount available for Restricted Payments under the first paragraph of this covenant. Such designation shall only be permitted if such Restricted Payment would be permitted at such time and if such Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. The amount of all Restricted Payments (other than cash) shall be the greater of its (i) book value and (ii) fair market value (as determined evidenced by such appraisera resolution of the Board of Directors set forth in an Officers' Certificate delivered to the Trustee) or its net book value on the books date of the Company. Notwithstanding any Restricted Payment of the foregoing provisions asset(s) proposed to be transferred by Holdings or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. Not later than the date of this paragraph, neither the Company nor any Subsidiary or Affiliate shall make making any Restricted Payment, Holdings shall deliver to the Trustee an Officers' Certificate stating that such Restricted Payment if at is permitted and setting forth the time or after giving effect theretobasis upon which the calculation required by this covenant were computed, there shall exist any Defaultwhich calculations may be based upon Holdings' latest available financial statements.
Appears in 2 contracts
Sources: Indenture (Cottontops Inc), Indenture (Anvil Holdings Inc)
Restricted Payments. Neither the The Company nor shall not, and shall not permit any of its Restricted Subsidiaries to, directly or Affiliates shall indirectly: (i) declare or pay any dividend or make any other payment or distribution on account of the Company's or any of its Subsidiaries' Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company or any of its Subsidiaries') or to the direct or indirect holders of the Company's or any of its Subsidiaries' Equity Interests in their capacity as such (other than dividends or distributions payable in Qualified Capital Stock of the Company); (ii) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or any direct or indirect parent of the Company; (iii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness that is subordinated to the Notes (other than intercompany Indebtedness), except a payment of interest or principal at stated maturity; or (iv) make any Restricted Payment or Investment (all such payments and other actions set aside any funds therefor forth in clauses (i) through (iv) above being collectively referred to as "Restricted Payments"), unless, at the time of and after giving effect theretoto such Restricted Payment:
(a) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof; and
(b) the Company would, at the aggregate time of such Restricted Payments for all Payment and after giving pro forma effect thereto as if such purposes subsequent Restricted Payment had been made at the beginning of the applicable Four-Quarter Period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Closing Date would not exceed Consolidated Fixed Charge Coverage Ratio test set forth in the sum first paragraph of Section 4.09; and
(as in effect c) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after the date of this Indenture (excluding Restricted Payments permitted by clauses (3), (4) (but only to the extent such Restricted Payment is made with the cash proceeds received by the Company from time to timeany "key man" life insurance policies), hereinafter referred to as (5), (7), (8) and (9) of the "Distribution Fund") next succeeding paragraph), is less than the sum, without duplication, of (i) 50% of the Company's Cumulative Combined Consolidated Net Income subsequent of the Company for the period (taken as one accounting period) from the beginning of the first fiscal quarter commencing after the date of this Indenture to December 31, 1991 so long as the end of the Company's Combined Tangible most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Worth Income for such period is greater than $31,051,000a deficit, less 100% of such deficit), plus (ii) 100% of the aggregate net proceeds (including the fair market value of property other than cash (determined in good faith by the net Management Committee as evidenced by a certificate filed with the Trustee, except that in the event the value of any non cash proceeds consideration shall be $15.0 million or more, the value shall be determined based upon an opinion or appraisal issued by an accounting, appraisal or investment banking firm of national standing)) received by the Company since the date of this Indenture as a contribution to its common equity capital or from any issuance the issue or sale of capital shares Equity Interests (other than Disqualified Stock) of the Company subsequent (excluding any net proceeds from an Equity Offering or capital contribution to the Closing Dateextent used to redeem Notes in accordance with the optional redemption provisions of the Notes) or from the issue or sale of Disqualified Stock or debt securities of the Company that have been converted into such Equity Interests (other than Equity Interests (or Disqualified Stock or convertible debt securities) sold to a Subsidiary of the Company), and plus (iii) to the aggregate extent that any Restricted Investment that was made after the date of this Indenture is sold for cash or otherwise liquidated or repaid for cash, the net cash proceeds return of capital with respect to such Restricted Investment (less the cost of disposition, if any), plus (iv) any dividends (the fair market value of property other than cash shall be determined in good faith by the Management Committee as evidenced by a certificate filed with the trustee, except that in the event the value of any non-cash consideration shall be $15.0 million or more, the value shall be determined based upon an opinion or appraisal issued by an accounting, appraisal or investment banking firm of national standing) received by the Company or a Restricted Subsidiary after the date of this Indenture from any issuance Unrestricted Subsidiary of any Indebtedness the Company, to the extent that such dividends were not otherwise included in Consolidated Net Income of the Company which has been converted into capital shares for such period, plus (v) to the extent that any Unrestricted Subsidiary is redesignated as a Restricted Subsidiary after the date of this Indenture, if as a result of such redesignation, (x) the Fixed Charge Coverage Ratio of the Company subsequent on a pro forma basis is lower than such ratio immediately prior thereto, then the lesser of (A) the fair market value of the Company's Investment in such Subsidiary as of the date of such redesignation or (B) such fair market value as of the date on which such Subsidiary was originally designated as an Unrestricted Subsidiary or (y) the Fixed Charge Coverage Ratio of the Company on a pro forma basis is equal to or higher than such ratio immediately prior thereto, the Closing Date, which amount shall be added to fair market value of the Distribution Fund only after Company's Investment in such conversionSubsidiary as of the date of such redesignation. Notwithstanding the foregoing, the provisions set forth in the immediately preceding paragraph will not prohibit (1) the payment of any dividend or the consummation of any irrevocable redemption within 60 days after the date of declaration of such dividend or notice of such redemption if the dividend or payment of the redemption price, as the case may be, would have been permitted on the date of declaration or notice; (2) if no Event of Default shall have occurred and be continuing or shall occur as a consequence thereof, the acquisition of any Capital Stock of the Company may acquire its own capital shares (the "Retired Capital Stock"), either (i) solely in exchange for Qualified Capital Stock of the Company (the "Refunding Capital Stock"), or (ii) through the application of the net proceeds of a substantially concurrent sale for cash (other than to a Subsidiary of the Company) of Qualified Capital Stock of the Company, and, in the case of subclause (i) of this clause (2), if immediately prior to the retirement of the Retired Capital Stock the declaration and payment of dividends thereon was permitted under clause (3) of this paragraph, the declaration and payment of dividends on the Refunding Capital Stock in an aggregate amount from per year no greater than the aggregate amount of dividends per annum that was declarable and payable on such Retired Capital Stock immediately prior to such retirement; provided that at the time of the declaration of any such dividends on the Refunding Capital Stock, no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof; (3) if no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof, the declaration and payment of dividends to holders of any class or series of Designated Preferred Stock (other than Disqualified Stock) issued after the Closing date equal of this Indenture (including, without limitation, the declaration and payment of dividends on Refunding Capital Stock in excess of the dividends declarable and payable thereon pursuant to clause (2) of this paragraph); provided that, at the greater time of such issuance, the Company, after giving effect to such issuance on a pro forma basis, would have had a Consolidated Fixed Charge Coverage Ratio of at least 2.0 to 1.0 for the most recent Four- Quarter Period; (4) the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of Holdings or the Company or any Subsidiary of the Company held by any former member of the Holdings' or the Company's (or any of their Subsidiaries') management committee or any former officer, employee or director of Holdings or the Company pursuant to any equity subscription agreement, stock option agreement, employment agreement or other similar agreements and any dividends or distributions to Holdings to fund such purchase, redemption or other acquisition or retirement; provided that (A) the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall not exceed (x) the sum of $1.5 million in any calendar year (iwith unused amounts in any calendar year being carried over to succeeding calendar years) 25% of the Cumulative Combined Net Income of the Company subsequent to December 31, 1991, plus (ii) $500,000, or (y) the amount then available under aggregate cash proceeds received by Holdings or the Distribution FundCompany during such calendar year from any reissuance of Equity Interests by Holdings or the Company to members of management of the Company and its Restricted Subsidiaries and (B) no Default or Event of Default shall have occurred and be continuing immediately after such transaction; provided, which amount further that the aggregate cash proceeds referred to in (y) above shall be charged excluded from clause (c)(ii) of the preceding paragraph; (5) the making of distributions, loans or advances to Holdings in an amount not to exceed $1.5 million per annum in order to permit Holdings to pay the ordinary operating expenses of Holdings (including, without limitation, directors' fees, indemnification obligations, professional fees and expenses); (6) if no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof, other Restricted Payments in an aggregate amount not to exceed $7.5 million since the date of this Indenture; (7) repurchases of Capital Stock deemed to occur upon the exercise of stock options if such Capital Stock represents a portion of the exercise price thereof; (8) distributions to Holdings and the Current Owners to fund the Transactions and (9) so long as the Company is treated as a partnership or disregarded as an entity separate from its owners for federal income tax purposes, distributions to the Distribution Fund. No Restricted Payment may be made in other than cash or securities which are actively traded on a nationally recognized public market and have a readily ascertainable market value (which value shall be the amount partners of such Restricted Payment), unless the Company shall have received in an amount with respect to any period after June 30, 1998 not to exceed the Tax Amount of the Company for such period. The Management Committee may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a report from an independent recognized appraiser as Default. For purposes of making such determination, all outstanding Investments by the Company and its Restricted Subsidiaries (except to the fair value of extent repaid in cash) in the property to be distributed or transferred, in which case the amount of such Restricted Payment shall Subsidiary so designated will be deemed to be Restricted Payments at the greater time of its 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 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 Restricted Payments (as determined by such appraiserother than cash) or its net book shall be the fair market value on the books date of the Company. Notwithstanding any Restricted Payment of the foregoing provisions of this paragraph, neither asset(s) or securities proposed to be transferred or issued by the Company nor any Subsidiary or Affiliate shall make any such Restricted Payment if at Subsidiary, as the time or after giving effect theretocase may be, there shall exist any Defaultpursuant to the Restricted Payment.
Appears in 2 contracts
Sources: Indenture (Anthony Crane Sales & Leasing Lp), Indenture (Anthony Crane Holdings Capital Corp)
Restricted Payments. Neither In the Company nor any case of its Subsidiaries the Parent Entities and the Borrower, declare, make or Affiliates shall make pay any Restricted Payment Payment, other than, so long as no Event of Default has occurred and is continuing under Sections 8.01(a) or set aside any funds therefor unless8.01(e), after giving effect thereto(a), the aggregate of such Restricted Payments in an amount necessary for all such purposes subsequent the Parent to make distributions (x) to remain in compliance with the applicable rules for qualifications as a REIT under the Code and (y) sufficient to avoid the imposition of any U.S. federal or state income and excise taxes under the Code (and in connection therewith the Borrower may make Restricted Payments in a ratable amount to the Closing Date would not exceed holders of partnership interests of the sum Borrower), (b) at any time following November 30, 2021, Restricted Payments constituting current or accrued dividends on Company Preferred Stock, so long as in effect from time to time, hereinafter referred to as the "Distribution Fund") of (i) 50% of the Company's Cumulative Combined Net Income subsequent to December 31, 1991 so long as the Company's Combined Tangible Net Worth no PIK Principal is greater than $31,051,000, then outstanding and (ii) the aggregate amount of Unrestricted Cash, after giving effect to such Restricted Payment, is not less than an amount equal to the sum of (x) $100,000,000 plus (y) the aggregate principal amount of DDTLs advanced prior to the date thereof or contemporaneously therewith, (c) to repurchase, redeem, retire or otherwise acquire or retire for value the Equity Interests of the net cash proceeds received Parent held by any future, present or former employee, director, officer (or any Immediate Family Members thereof) of AINC and its Affiliates, the Loan Parties, their Subsidiaries or Controlled JV Subsidiaries, in connection with the death, disability, retirement or termination of employment of any such Person or otherwise in connection with any equity option, equity benefit or incentive plan or agreement, equity subscription plan or other employment agreements, in an aggregate amount under this clause (c) not to exceed (i) $5,000,000 in any fiscal year or (ii) $15,000,000 in aggregate, (d) Restricted Payments among the Borrower and the Parent Entities, (e) to the extent constituting Restricted Payments, any payments made in respect of and subject to the terms of Section 7.02(e), (f) the purchase, repurchase or acquisition by the Company from any issuance or sale Parent of capital shares its Equity Interests in an aggregate amount not to exceed $30,000,000 in the aggregate, to the extent (i) Equity Interests are approved to be awarded to employees and/or officers of the Company subsequent Parent, the Advisor and/or their Affiliates pursuant to an equity compensation plan, (ii) sufficient Equity Interests are not as of such date authorized or available for issuance by the Closing Date, Parent and (iii) the aggregate such purchased or acquired Equity Interests are subsequently distributed to such employees and/or officers and (g) Restricted Payments in respect of the net cash proceeds received by OP Units made in accordance with the Company from any issuance of any Indebtedness terms of the Company which has been converted into capital shares of the Company subsequent to the Closing Date, which amount shall be added to the Distribution Fund only after such conversion. Notwithstanding the foregoing, the Company may acquire its own capital shares for an aggregate amount from and after the Closing date equal to the greater of (x) the sum of Borrower Partnership Agreement; provided that (i) 25% all such Restricted Payments made under this clause (g) in respect of the Cumulative Combined Net Income of OP Units shall be made in Equity Interests (not constituting Disqualified Stock) to the Company subsequent to December 31, 1991, plus greatest extent permitted by the Borrower Partnership Agreement and (ii) $500,000, or any Restricted Payments made under this clause (yg) in respect of the amount then available under OP Units not outstanding on the Distribution Fund, which amount Closing Date shall be charged made solely in Equity Interests (not constituting Disqualified Stock), except in the case of this clause (ii) to the Distribution Fund. No Restricted Payment may be made extent that such OP Units not outstanding on the Closing Date were issued in other than cash connection with an acquisition of any Person or securities which are actively traded on a nationally recognized public market and have a readily ascertainable market value (which value shall be the amount of such Restricted Payment), unless the Company shall have received a report from an independent recognized appraiser as to the fair value of the property to be distributed or transferredHotel Property permitted hereby, in which case the a maximum amount of such Restricted Payment shall consideration of $50,000,000 that does not constitute Equity Interests (not constituting Disqualified Stock) may be deemed to be the greater of its fair value (as determined by such appraiser) or its net book value on the books of the Company. Notwithstanding any of the foregoing provisions of this paragraph, neither the Company nor any Subsidiary or Affiliate shall make any Restricted Payment if at the time or after giving effect thereto, there shall exist any Defaultpaid.
Appears in 2 contracts
Sources: Credit Agreement (Ashford Hospitality Trust Inc), Credit Agreement (Ashford Hospitality Trust Inc)
Restricted Payments. Neither the The Company nor shall not, and shall not permit any of its Restricted Subsidiaries to, directly or Affiliates shall indirectly: (a) declare or pay any dividend or make any other payment or distribution on account of the Company's or any of its Restricted Subsidiaries' Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company or any of its Restricted Subsidiaries) or to the direct or indirect Holders of the Company's or any of its Restricted Subsidiaries' Equity Interests in their capacity as such (other than dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company or any Restricted Subsidiary of the Company or payable to the Company or a Restricted Subsidiary of the Company); (b) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or any Restricted Subsidiary of the Company held by any Person (other than the Company or any of its Wholly Owned Restricted Subsidiaries); (c) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness that is subordinated to the Notes or the Note Guarantees, except a payment of interest or principal and premium, if any, at the Stated Maturity thereof; or (d) make any Restricted Payment or Investment (all such payments and other actions set aside any funds therefor forth in these clauses (a) through (d) being collectively referred to as "Restricted Payments"), unless, at the time of and after giving effect thereto, the aggregate to such Restricted Payment:
(i) no Default or Event of Default has occurred and is continuing or would occur as a consequence of such Restricted Payments for all Payment; and
(ii) the Company would, at the time of such purposes subsequent Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Closing Date would not exceed Fixed Charge Coverage Ratio test set forth in the sum first paragraph of Section 4.09 hereof; and
(as in effect from time to timeiii) such Restricted Payment, hereinafter referred to as together with the "Distribution Fund"aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after the date of this Indenture (excluding Restricted Payments permitted by clauses (b), (c) and (d) of the next succeeding paragraph), is less than the sum, without duplication, of: (i1) 50% of the Company's Cumulative Combined Consolidated Net Income subsequent of the Company for the period (taken as one accounting period) from the beginning of the first fiscal quarter commencing after the date of this Indenture to December 31, 1991 so long as the end of the Company's Combined Tangible most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Worth Income for such period is greater than $31,051,000a deficit, less 100% of such deficit), plus (ii2) 100% of the aggregate of the net cash proceeds received by the Company since the date of this Indenture as a contribution to its common equity capital or from any issuance the issue or sale of capital shares Equity Interests of the Company subsequent (other than Disqualified Stock) or from the issue or sale of convertible or exchangeable Disqualified Stock or convertible or exchangeable debt securities of the Company that have been converted into or exchanged for such Equity Interests (other than Equity Interests (or Disqualified Stock or debt securities) sold to a Subsidiary of the Company), plus (3) (A) to the Closing Dateextent that any Restricted Investment that was made after the date of this Indenture is sold for cash or otherwise liquidated or repaid for cash for an amount in excess of the initial amount of such Restricted Investment, the sum of (x) 50% of the cash proceeds with respect to such Restricted Investment in excess of the aggregate amount invested in such Restricted Investment (less the cost of disposition, if any) and (y) the aggregate amount invested in such Restricted Investment, and (B) to the extent that any such Restricted Investment is sold for cash or otherwise liquidated or repaid in cash for an amount equal to or less than the initial amount of such Restricted Investment, the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any); provided that the amount of any Net Proceeds that are applied to repurchase the Notes pursuant to Section 4.15(c) shall be excluded from this clause (iii) (3) to the aggregate extent otherwise includible; plus (4) 50% of any dividends received by the Company or a Restricted Subsidiary after the date of this Indenture from an Unrestricted Subsidiary of the Company, to the extent that such dividends were not otherwise included in Consolidated Net Income of the Company for such period, plus (5) to the extent that any Unrestricted Subsidiary of the Company is redesignated as a Restricted Subsidiary after the date of this Indenture, the lesser of (x) the fair market value of the Company's Investment in such Subsidiary as of the date of such redesignation or (y) such fair market value as of the date on which such Subsidiary was originally designated as an Unrestricted Subsidiary. So long as no Default has occurred and is continuing or would be caused thereby, the preceding provisions shall not prohibit: (a) the payment of any dividend within 60 days after the date of declaration of the dividend, if at the date of declaration the dividend payment would have complied with the provisions of this Indenture; (b) the redemption, repurchase, retirement, defeasance or other acquisition of any Junior Notes in exchange for, or out of the net cash proceeds received by of the substantially concurrent sale (other than to a Restricted Subsidiary of the Company) of, Equity Interests of the Company from any issuance (other than Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such redemption, repurchase, retirement, defeasance or other acquisition shall be excluded from clause (iii) (2) of the preceding paragraph; (c) the defeasance, redemption, repurchase or other acquisition of subordinated Indebtedness of the Company which has been converted into capital shares or any Restricted Subsidiary with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness; (d) the payment of any dividend by a Restricted Subsidiary of the Company subsequent to the Closing Dateholders of its Equity Interests on a pro rata basis; and (e) the repurchase, which 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 member of the Company's (or any of its Restricted Subsidiaries') management pursuant to any management equity subscription agreement, stock option agreement or similar agreement; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may not exceed $250,000 in any twelve-month period. The amount of all Restricted Payments (other than cash) shall be added 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 Distribution Fund only after such conversionRestricted Payment. Notwithstanding The fair market value of any assets or securities that are required to be valued by this Section 4.07 shall be determined by the foregoingBoard of Directors in good faith, whose resolution with respect thereto shall be delivered to the Trustee. The Board of Directors' determination must be based upon an opinion or appraisal issued by an accounting, appraisal or investment banking firm of national standing if the fair market value exceeds $3.0 million. Not later than the date of making any Restricted Payment, the Company may acquire its own capital shares for an aggregate amount from and after the Closing date equal shall deliver to the greater of (x) the sum of (i) 25% of the Cumulative Combined Net Income of the Company subsequent to December 31, 1991, plus (ii) $500,000, or (y) the amount then available under the Distribution Fund, which amount shall be charged to the Distribution Fund. No Restricted Payment may be made in other than cash or securities which are actively traded on a nationally recognized public market and have a readily ascertainable market value (which value shall be the amount of such Restricted Payment), unless the Company shall have received a report from Trustee an independent recognized appraiser as to the fair value of the property to be distributed or transferred, in which case the amount of Officers' Certificate stating that such Restricted Payment shall be deemed to be is permitted and setting forth the greater basis upon which the calculations required by this Section 4.07 were computed, together with a copy of its fair value (as determined any fairness opinion or appraisal required by such appraiser) or its net book value on the books of the Company. Notwithstanding any of the foregoing provisions of this paragraph, neither the Company nor any Subsidiary or Affiliate shall make any Restricted Payment if at the time or after giving effect thereto, there shall exist any DefaultIndenture.
Appears in 2 contracts
Sources: Indenture (Assisted Living Concepts Inc), Indenture (Assisted Living Concepts Inc)
Restricted Payments. Neither the The Company nor shall not, and shall not permit any of its Restricted Subsidiaries to, directly or Affiliates shall indirectly: (i) declare or pay any dividend or make any other payment or distribution on account of the Company's or any of its Restricted Subsidiaries' Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company or any of its Restricted Subsidiaries) or to the direct or indirect holders of the Company's or any of its Restricted Subsidiaries' Equity Interests in their capacity as such (other than dividends or distributions payable in Equity Interests (other than Disqualified Interests) of the Company or to the Company or a Restricted Subsidiary of the Company); (ii) purchase, redeem or otherwise acquire or retire for value (including without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or any direct or indirect parent of the Company (other than any such Equity Interests owned by the Company or any Wholly-Owned Restricted Subsidiary of the Company); (iii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness that is subordinated to the Notes, except a payment of interest or principal at Stated Maturity; or (iv) make any Restricted Payment or Investment (all such payments and other actions set aside any funds therefor forth in clauses (i) through (iv) above being collectively referred to as "RESTRICTED PAYMENTS"), unless, at the time of and after giving effect theretoto such Restricted Payment:
(a) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof; and
(b) the Company would, at the aggregate time of such Restricted Payments for all Payment and after giving pro forma effect thereto as if such purposes subsequent Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Closing Date would not exceed Fixed Charge Coverage Ratio test set forth in the sum first paragraph of Section 4.09 of this Indenture; and
(as in effect from time to timec) such Restricted Payment, hereinafter referred to as together with the "Distribution Fund"aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after the date of this Indenture (excluding Restricted Payments permitted by clauses (ii), (iii), (iv), (vi), (vii) and (viii) of the second succeeding paragraph), is less than the sum, without duplication, of (i) 50% of the Company's Cumulative Combined Consolidated Net Income subsequent of the Company for the period (taken as one accounting period) from the beginning of the first fiscal quarter commencing after the date of this Indenture (the "MEASUREMENT DATE") to December 31, 1991 so long as the end of the Company's Combined Tangible most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Worth Income for such period is greater than $31,051,000a deficit, less 100% of such deficit), plus (ii) 100% of the aggregate of the net cash proceeds received by the Company since the Measurement Date as a contribution to its common equity capital or from any issuance the issue or sale of capital shares Equity Interests of the Company subsequent (other than Disqualified Interests) or from the issue or sale of Disqualified Interests or debt securities of the Company that have been converted into such Equity Interests (other than Equity Interests or convertible debt securities sold to a Subsidiary of the Closing DateCompany), and plus (iii) to the extent that any Restricted Investment that was made after the date of this Indenture is sold for cash or otherwise liquidated or repaid for cash, the lesser of (A) the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any) and (B) the aggregate amount of such Restricted Investment that was treated as a Restricted Payment when made. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default. For purposes of making such determination, all outstanding Investments by the Company and its Restricted Subsidiaries in the Subsidiary so designated will be deemed to be Restricted Payments at the time of such designation and will reduce the amount available for Restricted Payments under the first paragraph of this Section 4.07. All such outstanding Investments will be deemed to constitute Investments in an amount equal to the fair market value of such Investments at the time of such designation. Such designation will only be permitted if such Restricted Payment would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. The foregoing provisions shall 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 in exchange for, or out of the net cash proceeds received of the substantially concurrent sale (other than to a Subsidiary of the Company) of, other Equity Interests of the Company (other than any Disqualified Interests); 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 or other acquisition of subordinated Indebtedness with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness; (iv) the payment of any dividend by a Subsidiary of the Company to the holders of its common Equity Interests on a pro rata basis; (v) the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Subsidiary of the Company held by any member of the Company's (or any of its Subsidiaries') management; PROVIDED that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall not exceed $1,000,000 in any twelve-month period and no Default or Event of Default shall have occurred and be continuing immediately after such transaction; (vi) the declaration of the ▇▇▇▇ ▇▇▇▇▇ Vehicle as an Unrestricted Subsidiary on the date that it becomes a Subsidiary of the Company; PROVIDED that it otherwise meets the qualifications of an Unrestricted Subsidiary; (vii) distributions to partners or owners of the Company in an aggregate amount during or with respect to any fiscal period commencing after December 31, 1996, not to exceed the Tax Amount for such period or for such prior periods commencing after December 31, 1996 that are subject to adjustments as a result of audits by tax authorities; (viii) transfers of cash proceeds from the sale of the Notes not to exceed, in the aggregate, $85.0 million, to finance the purchase of the Company's limited partnership interests from the public holders of such units, as set forth in the Offering Memorandum under the caption "Use of Proceeds" and (ix) additional Restricted Payments not to exceed $5.0 million after the date of this Indenture. 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 from any issuance or such Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any Indebtedness of the Company which has been converted into capital shares of the Company subsequent to the Closing Date, which amount shall be added to the Distribution Fund only after such conversion. Notwithstanding the foregoing, the Company may acquire its own capital shares for an aggregate amount from and after the Closing date equal to the greater of (x) the sum of (i) 25% of the Cumulative Combined Net Income of the Company subsequent to December 31, 1991, plus (ii) $500,000, or (y) the amount then available under the Distribution Fund, which amount shall be charged to the Distribution Fund. No Restricted Payment may be made in other than non-cash or securities which are actively traded on a nationally recognized public market and have a readily ascertainable market value (which value shall be the amount of such Restricted Payment), unless the Company shall have received a report from an independent recognized appraiser as to the fair value of the property to be distributed or transferred, in which case the amount of such Restricted Payment shall be deemed 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 $1.0 million. Not later than the greater date of its fair value (as determined by such appraiser) or its net book value on the books of the Company. Notwithstanding making any of the foregoing provisions of this paragraphRestricted Payment, neither the Company nor any Subsidiary or Affiliate shall make any deliver to the Trustee an Officers' Certificate stating that such Restricted Payment if at is permitted and setting forth the time basis upon which the calculations required by this Section 4.07 were computed, together with a copy of any fairness opinion or after giving effect thereto, there shall exist any Defaultappraisal required by this Indenture.
Appears in 2 contracts
Sources: Indenture (Restaurant Co), Indenture (Perkins Finance Corp)
Restricted Payments. Neither the (a) The Company nor shall not, and shall not permit any of its Restricted Subsidiaries to, directly or Affiliates shall indirectly:
(1) declare or pay any dividend or make any other payment or distribution on account of the Company’s or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company or any of its Restricted Subsidiaries) or to the direct or indirect holders of the Company’s or any of its Restricted Subsidiaries’ Equity Interests in their capacity as such (other than dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company or payable to the Company or a Restricted Subsidiary of the Company);
(2) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or any direct or indirect parent of the Company;
(3) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Subordinated Indebtedness except a payment of interest or principal at the Stated Maturity thereof; or
(4) make any Restricted Payment or Investment (all such payments and other actions set aside any funds therefor forth in these clauses (1) through (4) above being collectively referred to as “Restricted Payments”), unless, at the time of and after giving effect thereto, the aggregate to such Restricted Payment:
(1) no Default or Event of Default has occurred and is continuing or would occur as a consequence of such Restricted Payments for all Payment;
(2) the Company would, at the time of such purposes subsequent Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Closing Date would not exceed Fixed Charge Coverage Ratio test set forth in Section 4.09(a) hereof; and
(3) such Restricted Payment, together with the sum aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after December 17, 2010 (as in effect from time to timeexcluding Restricted Payments permitted by clauses (2), hereinafter referred to as the "Distribution Fund"(3), (4), (6), (7), (8), (9), (10) and (12) of paragraph (ib) of this Section 4.07), is less than the sum, without duplication, of:
(A) 50% of the Company's Cumulative Combined Consolidated Net Income subsequent of the Company for the period (taken as one accounting period) from October 1, 2010 to December 31, 1991 so long as the end of the Company's Combined Tangible ’s most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Worth Income for such period is greater than $31,051,000a deficit, less 100% of such deficit), plus
(iiB) 100% of the aggregate of the net cash proceeds received by the Company (and the Fair Market Value of any Additional Assets to the extent acquired in consideration of Equity Interests of the Company (other than Disqualified Stock)) after December 17, 2010 as a contribution to its common equity capital or from any issuance the issue or sale of capital shares Equity Interests of the Company subsequent (other than Disqualified Stock) or from the issue or sale of convertible or exchangeable Disqualified Stock or convertible or exchangeable debt securities of the Company that have been converted into or exchanged for such Equity Interests (other than Equity Interests (or Disqualified Stock or debt securities) sold to a Subsidiary of the Company), plus
(C) to the Closing Dateextent that any Restricted Investment that was made after December 17, 2010 is sold for cash or otherwise liquidated or repaid for cash, the lesser of (i) the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any) and (iiiii) the aggregate initial amount of such Restricted Investment, plus
(D) to the extent that any Unrestricted Subsidiary of the Company designated as such after December 17, 2010 is redesignated as a Restricted Subsidiary after December 17, 2010, the lesser of (i) the Fair Market Value of the Company’s Investment in such Subsidiary as of the date of such redesignation or (ii) such Fair Market Value as of the date on which such Subsidiary was originally designated as an Unrestricted Subsidiary.
(b) So long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the preceding provisions will not prohibit:
(1) the payment of any dividend within 60 days after the date of declaration of the dividend, if at the date of declaration, the dividend would have complied with the provisions of this Indenture;
(2) 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 (other than to a Subsidiary of the Company) 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 Restricted Payment will be excluded from clause (3)(B) of the preceding paragraph;
(3) the defeasance, redemption, repurchase, retirement or other acquisition of Subordinated Indebtedness of the Company or any Guarantor with the net cash proceeds from a substantially concurrent incurrence of, or in exchange for, Permitted Refinancing Indebtedness;
(4) the payment of any dividend by a wholly-owned Restricted Subsidiary of the Company to the Company or a Restricted Subsidiary;
(5) the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company held by any current or former director or employee of the Company or any of its Restricted Subsidiaries pursuant to any director or employee equity subscription agreement or plan, stock option agreement or similar agreement or plan; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may not exceed $4.0 million in any twelve-month period;
(6) the acquisition of Equity Interests by the Company in connection with the exercise of stock options or stock appreciation rights by way of cashless exercise;
(7) so long as no Default has occurred and is continuing, upon the occurrence of a Change of Control or an Asset Sale and within 60 days after the completion of the offer to repurchase the Notes pursuant to Section 4.15 or Section 4.10 (including the purchase of all Notes tendered), any purchase, repurchase, redemption, defeasance, acquisition or other retirement for value of Subordinated Indebtedness required under the terms thereof as a result of such Change of Control or Asset Sale at a purchase or redemption price not to exceed 101% of the outstanding principal amount thereof, plus accrued and unpaid interest thereon, if any, provided that, in the notice to Holders relating to a Change of Control or Asset Sale hereunder, the Company shall describe this clause (7);
(8) the payment of cash in lieu of fractional shares of Capital Stock in connection with any transaction otherwise permitted under this Indenture;
(9) Permitted Payments to Parent Companies;
(10) other Restricted Payments in an aggregate amount since the Issue Date not to exceed $70.0 million;
(11) the payment of dividends on the Company’s common equity (or the payment of dividends or distributions to a direct or indirect parent company of the Company to fund the payment by such parent company of dividends or distributions on its common equity) of up to 6.0% per calendar year of the net proceeds received by the Company from any issuance of any Indebtedness public Equity Offering or contributed to the Company by a direct or indirect parent company of the Company which has been converted into capital shares from any public Equity Offering; provided that the amount of any such net cash proceeds that are utilized for any such Restricted Payment will be excluded from clause (3)(B) of Section 4.07(a); and
(12) the declaration and payment of dividends to holders of any class or series of preferred stock or Disqualified Stock of the Company subsequent or any of its Restricted Subsidiaries issued in accordance with Section 4.09 to the Closing Dateextent such dividends are included in the calculation of Fixed Charges.
(c) The amount of all Restricted Payments (other than cash) will be the Fair Market Value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company or such Restricted Subsidiary, which amount as the case may be, pursuant to the Restricted Payment. The Fair Market Value of any assets or securities that are required to be valued by this covenant will be determined by the Board of Directors of the Company, whose determination shall be added to the Distribution Fund only after such conversion. Notwithstanding the foregoing, the Company may acquire its own capital shares for an aggregate amount from and after the Closing date equal to the greater of (x) the sum of (i) 25% evidenced by a resolution of the Cumulative Combined Net Income Board of the Company subsequent to December 31, 1991, plus (ii) $500,000, or (y) the amount then available under the Distribution Fund, which amount shall be charged to the Distribution Fund. No Restricted Payment may be made in other than cash or securities which are actively traded on a nationally recognized public market and have a readily ascertainable market value (which value shall be the amount of such Restricted Payment), unless the Company shall have received a report from an independent recognized appraiser as to the fair value of the property to be distributed or transferred, in which case the amount of such Restricted Payment shall be deemed to be the greater of its fair value (as determined by such appraiser) or its net book value on the books Directors of the Company. Notwithstanding any Such Board of Directors’ determination must be based upon an opinion or appraisal issued by an accounting, appraisal or investment banking firm of national standing if the Fair Market Value exceeds $20.0 million. For purposes of determining compliance with this Section 4.07, in the event that a Restricted Payment meets the criteria of more than one of the foregoing provisions categories of this paragraphRestricted Payments described in the preceding clauses (1) through (12), neither the Company nor any Subsidiary will be permitted to classify (or Affiliate shall make any later classify or reclassify in whole or in part in its sole discretion) such Restricted Payment if at the time or after giving effect thereto, there shall exist in any Defaultmanner that complies with this covenant.
Appears in 2 contracts
Sources: Indenture (Energy Xxi (Bermuda) LTD), Indenture (Energy Xxi (Bermuda) LTD)
Restricted Payments. Neither the Company nor The Borrower will not, and will not permit any of its Restricted Subsidiaries to, declare or Affiliates shall make make, directly or indirectly, any Restricted Payment, except:
(i) the payment by the Borrower or any Restricted Subsidiary of any dividend or the consummation of any irrevocable redemption within 60 days after the date of declaration thereof or giving the notice of the redemption, if on the date of declaration or notice the payment would have complied with this Section 6.05 (assuming, in the case of redemption, the giving of the notice would have been deemed to be a Restricted Payment at such time and such deemed Restricted Payment would have been permitted at such time); provided that any Restricted Payment or set aside any funds therefor unless, after giving effect thereto, the aggregate of such Restricted Payments for all such purposes subsequent pursuant to the Closing Date would not exceed the sum (as in effect from time to time, hereinafter referred to as the "Distribution Fund") of this clause (i) 50% shall be deemed to have utilized capacity under the exception that such Restricted Payment would have been permitted to have been made in reliance of at the Company's Cumulative Combined Net Income subsequent to December 31time of declaration or notice of redemption, 1991 so long as the Company's Combined Tangible Net Worth is greater than $31,051,000, applicable;
(ii) the Borrower may declare or make a Restricted Payment with respect to its Equity Interest payable solely in Qualified Equity Interests or redeem any of its Equity Interests in exchange for, or out of the proceeds of the substantially concurrent issuance and sale of, Qualified Equity Interests or through accretion or accumulation of such dividends on such Equity Interests; provided that the issuance of such Equity Interests are not included in any determination of the Retained Excess Cash Flow Amount;
(iii) repurchase, redemption or other acquisition for value by the Borrower of, Equity Interests of the Borrower held by officers, directors or employees or former officers, directors or employees of the Borrower and any Restricted Subsidiary (or their transferees, estates or beneficiaries under their estates), upon their death, disability, retirement, severance or termination of employment or service; provided that the aggregate cash consideration paid for all such redemptions shall not exceed $15,000,000 during any twelve consecutive months (with unused amounts in any period being carried over to succeeding periods; provided, that the total amount of such purchases, redemptions or other acquisitions under this clause (iii) in any twelve consecutive months shall not exceed $25,000,000); provided, further, that cancellation of Indebtedness owing to the Borrower or any Restricted Subsidiary from any current or former officer, director or employee (or any permitted transferees thereof) of the Borrower or any of its Restricted Subsidiaries (or any direct or indirect parent company thereof), in connection with a repurchase of Equity Interests of the Borrower from such Persons will not be deemed to constitute a Restricted Payment for purposes of this Section 6.05;
(iv) repurchases of Equity Interests deemed to occur (a) upon the exercise of stock options, warrants, or similar rights if the Equity Interests represent all or a portion of the exercise price thereof or (b) in connection with the satisfaction of any withholding Tax obligations incurred relating to the vesting or exercise of stock options, warrants, restricted stock units or similar rights;
(v) any Restricted Payment made out of the net cash proceeds of the substantially concurrent sale of, or made by exchange for, Qualified Equity Interests of the Borrower (other than Qualified Equity Interests issued or sold to a Restricted Subsidiary of the Borrower or an employee stock ownership plan or to a trust established by the Borrower or any of its Restricted Subsidiaries for the benefit of their employees) or a substantially concurrent cash capital contribution received by the Company Borrower from any issuance or sale of capital shares of the Company subsequent to the Closing Date, and (iii) the aggregate of the its stockholders; provided that such net cash proceeds received are not included in any determination of the Retained Excess Cash Flow Amount;
(vi) payments or distributions to dissenting stockholders of a Person acquired by the Company from Borrower or a Restricted Subsidiary pursuant to an Asset Acquisition permitted by Section 6.11;
(vii) any issuance of any Indebtedness of the Company which has been converted into capital shares of the Company subsequent Restricted Subsidiary may declare or make a Restricted Payment with respect to the Closing Date, which amount shall be added Equity Interests of such Restricted Subsidiary to the Distribution Fund only after Borrower or any other Restricted Subsidiary (and, in the case of a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to each owner of Equity Interests of such conversion. Notwithstanding Restricted Subsidiary such that the foregoing, Borrower or Restricted Subsidiary receives at least its pro rata share of such dividend or distribution);
(viii) Restricted Payments in the Company may acquire its own capital shares for form of dividends on the Borrower’s common stock in an aggregate amount from not to exceed in any 12-month period $20,000,000; provided that after giving effect thereto no Event of Default shall have occurred and after the Closing date equal be continuing;
(ix) Restricted Payments up to an aggregate amount not to exceed the greater of $30,000,000 and 20.0% of Consolidated EBITDA of the Borrower and its Restricted Subsidiaries (calculated on a Pro Forma Basis) for the most recent Test Period ending prior to such date of determination for which financial statements have been delivered to the Lenders pursuant to Section 4.01 or 5.01 of this Agreement (or, prior to the initial delivery under this Agreement, of the Original Credit Agreement); provided that, at the time of, and after giving effect thereto on a Pro Forma Basis no Event of Default shall have occurred and be continuing;
(x) [reserved];
(xi) [reserved];
(xii) Restricted Payments in an amount not to exceed the sum portion of the Retained Excess Cash Flow Amount on the date of such election that the Borrower elects to apply to this Section 6.05(xii) in a written notice of a Responsible Officer thereof, which notice shall set forth the Retained Excess Cash Flow Amount (and the calculation thereof in reasonable detail) immediately prior to such election and the amount thereof elected to be so applied; provided that after giving effect thereto on a Pro Forma Basis (i) 25% no Event of the Cumulative Combined Net Income of the Company subsequent to December 31, 1991, plus Default shall have occurred and be continuing and (ii) $500,000, the Consolidated Net Leverage Ratio is equal to or less than 3.25 to 1.00; and
(yxiii) the amount then available under the Distribution Fund, which amount shall be charged to the Distribution Fund. No other Restricted Payment may be made in other than cash or securities which are actively traded on a nationally recognized public market and have a readily ascertainable market value (which value shall be the amount of such Restricted Payment), unless the Company shall have received a report from an independent recognized appraiser as to the fair value of the property to be distributed or transferred, in which case the amount of such Restricted Payment shall be deemed to be the greater of its fair value (as determined by such appraiser) or its net book value on the books of the Company. Notwithstanding any of the foregoing provisions of this paragraph, neither the Company nor any Subsidiary or Affiliate shall make any Restricted Payment if at the time or Payments; provided that after giving effect thereto, there thereto on a Pro Forma Basis (i) no Event of Default shall exist any Defaulthave occurred and be continuing and (ii) the Consolidated Net Leverage Ratio is equal to or less than 1.75:1.00.
Appears in 2 contracts
Sources: Credit Agreement (Donnelley Financial Solutions, Inc.), Credit Agreement (Donnelley Financial Solutions, Inc.)
Restricted Payments. Neither Declare or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, or issue or sell any Equity Interests or accept any capital contributions, except that, so long as no Default or Event of Default (other than in respect of Restricted Payments made pursuant to paragraphs (a), (b) and (d) of this Section, which shall not be subject to the Company nor requirement that no Default or Event of Default be then continuing) shall have occurred and be continuing at the time of any action described below or would result therefrom:
(a) each Subsidiary may make Restricted Payments to the Borrower or any Guarantor (other than Holdings);
(b) the Borrower and each Subsidiary may declare and make dividend payments or other distributions payable solely in the common stock or other common Equity Interests of such Person;
(c) payments to Holdings to permit Holdings, and the substantially concurrent use of such payments by Holdings, to repurchase or redeem (or to make distributions to any direct or indirect parent of Holdings to repurchase or redeem) Qualified Capital Stock of Holdings, or the direct or indirect parents of Holdings, in each case held by current, future or former officers, directors members of management, consultants or employees (or their respective heirs, family members, spouses, domestic partners, former spouses, former domestic partners or estates) of any Loan Party; provided that the aggregate amount of payments to Holdings shall not exceed, in any period of twelve (12) consecutive months, $500,000 and, in the aggregate during the term of this Agreement, $1,000,000; provided, further that that the amount of any payment permitted pursuant to this Section 7.06(c) shall be reduced dollar-for-dollar by the amount of any Indebtedness incurred pursuant to Section 7.02(s);
(i) to the extent actually used substantially concurrently by Holdings to pay (or to make distributions to any direct or indirect parent of Holdings to pay) such taxes, costs and expenses, payments by the Borrower to or on behalf of Holdings in an amount sufficient to pay franchise taxes and other fees required to maintain the legal existence of Holdings, (ii) payments by the Borrower to or on behalf of Holdings in an amount sufficient to pay out-of-pocket legal, accounting and filing costs and other expenses in the nature of overhead in the ordinary course of business of Holdings, in the case of preceding clauses (i) and (ii) in an aggregate amount not to exceed $1,000,000 in any period of twelve (12) consecutive months, (iii) distributions to Holdings to pay (or to make distributions to any direct or indirect parent of Holdings to pay) operating expenses in the ordinary course and other corporate overhead (in each case, to the extent attributable to the assets, income or activities of the Borrower and its Subsidiaries) and (iv) distributions to Holdings (or to make distributions to any direct or indirect parent of Holdings to pay) to pay expenses of debt or equity offerings, provided that, as to clauses (iii) and (iv), that the aggregate amount of payments under clauses (iii) and (iv) shall not exceed $2,500,000;
(e) Permitted Tax Distributions by the Borrower to Holdings (or the direct or indirect holders of the Equity Interests of Holdings), so long as (i) Holdings (or the direct or indirect holders of the Equity Interests of Holdings) uses such distributions substantially concurrently to pay its Taxes, (ii) such Taxes are attributable to the assets, income or activities of the Borrower and its Subsidiaries and (iii) any refunds related to any such Permitted Tax Distribution received by Holdings (or Affiliates the direct or indirect holders of the Equity Interests of Holdings) shall make promptly be returned by Holdings to the Borrower;
(f) Restricted Payments in an aggregate amount outstanding not to exceed the Cumulative Credit Availability as of the time such Restricted Payments were made; provided that no such payments will be permitted under this Section 7.06(f) unless at the time that any such Restricted Payment or set aside any funds therefor unless, is made (and immediately after giving effect thereto), (i) Holdings shall be in compliance, on a Pro Forma Basis, with a Consolidated Total Lease Adjusted Leverage Ratio of not more than 4.50:1.00, for the aggregate most recent Measurement Period for which financial statements are available, and (ii) prior to the payment or making of such Restricted Payments for all such purposes subsequent Payments, Holdings or the Borrower shall have delivered to the Closing Date would not exceed Administrative Agent a certificate executed by the sum chief financial officer, demonstrating in reasonable detail (as in effect from time including all applicable calculations) (1) (x) the amount of Cumulative Credit Availability immediately prior to timesuch Restricted Payment and the amount thereof to be so applied, hereinafter referred and (y) permitted pursuant to as this Section 7.06(f), and (2) the "Distribution Fund"Consolidated Total Lease Adjusted Leverage Ratio required pursuant to the preceding clause (i);
(g) of after an IPO, (i) 50% any Restricted Payment by the Borrower or any other direct or indirect parent of the Company's Cumulative Combined Net Income subsequent Borrower to December 31, 1991 pay listing fees and other costs and expenses attributable to being a publicly traded company and (ii) Restricted Payments of up to 6.0% per annum of the net proceeds received by (or contributed to) Holdings and its Subsidiaries from such IPO;
(h) Repurchases of Equity Interests from employees deemed to occur upon the exercise of stock options or warrants by the applicable employee if such Equity Interests represent a portion of the exercise price of tax withholding obligation of such options or warrants and approved by the Board of Directors so long as the Company's Combined Tangible Net Worth is greater than $31,051,000, (ii) the aggregate exercise of the net cash proceeds received by the Company from any issuance such stock option or sale warrant would not give rise to a Change of capital shares of the Company subsequent to the Closing Date, and (iii) the aggregate of the net cash proceeds received by the Company from any issuance of any Indebtedness of the Company which has been converted into capital shares of the Company subsequent to the Closing Date, which amount shall be added to the Distribution Fund only after such conversion. Notwithstanding the foregoing, the Company may acquire its own capital shares for an aggregate amount from and after the Closing date equal to the greater of (x) the sum of Control; and
(i) 25% of the Cumulative Combined Net Income of Specified Amendment No. 1 Dividend on or within seven (7) days after the Company subsequent to December 31, 1991, plus Amendment No. 1 Effective Date;
(ii) $500,000, or (yj) the amount then available under Specified Amendment No. 2 Dividend on or within seven (7) days after the Distribution Fund, which amount shall be charged to the Distribution FundAmendment No. No Restricted Payment may be made in other than cash or securities which are actively traded on a nationally recognized public market and have a readily ascertainable market value (which value shall be the amount of such Restricted Payment), unless the Company shall have received a report from an independent recognized appraiser as to the fair value of the property to be distributed or transferred, in which case the amount of such Restricted Payment shall be deemed to be the greater of its fair value (as determined by such appraiser) or its net book value on the books of the Company. Notwithstanding any of the foregoing provisions of this paragraph, neither the Company nor any Subsidiary or Affiliate shall make any Restricted Payment if at the time or after giving effect thereto, there shall exist any Default.2 Effective Date;
Appears in 2 contracts
Sources: Credit Agreement (Bojangles', Inc.), Credit Agreement (Bojangles', Inc.)
Restricted Payments. Neither The Company shall not, and shall not permit any of its Restricted Subsidiaries, to, directly or indirectly, (a) declare or pay any dividend or make any distribution on account of any Equity Interests of the Company nor or any of its Subsidiaries, other than dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company or dividends or distributions payable to any Wholly Owned Subsidiary of the Company (other than Unrestricted Subsidiaries of the Company), (b) purchase, redeem or otherwise acquire or retire for value any outstanding Equity Interests of EchoStar, any of its Subsidiaries or Affiliates shall any other Affiliate of EchoStar, other than any such Equity Interests owned by the Company or any of its Wholly Owned Subsidiaries (other than Unrestricted Subsidiaries of the Company), (c) voluntarily purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness that is expressly subordinated in right of payment to the Notes, except in accordance with the scheduled mandatory redemption or repayment provisions set forth in the original documentation governing such Indebtedness or (d) make any Restricted Payment or Investment (all such prohibited payments and other actions set aside any funds therefor forth in clauses (a) through (d) above being collectively referred to as "RESTRICTED PAYMENTS"), unless, at the time of such Restricted Payment:
(i) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof;
(ii) after giving effect theretoto such Restricted Payment and the incurrence of any Indebtedness the net proceeds of which are used to finance such Restricted Payment, the Indebtedness to Cash Flow Ratio of the Company would not have exceeded 6.0 to 1; and
(iii) such Restricted Payment, together with the aggregate of all other Restricted Payments made by the Company after the date of this Indenture, is less than the sum of: (A) the difference of cumulative (x) Consolidated Cash Flow determined at the time of such Restricted Payments Payment (or, in case such Consolidated Cash Flow shall be a deficit, minus 100% of such deficit) minus (y) 150% of Consolidated Interest Expense of the Company, each as determined for all such purposes subsequent the period (taken as one accounting period) from July 1, 1997 to the Closing Date would not exceed the sum (as in effect from time to time, hereinafter referred to as the "Distribution Fund") of (i) 50% end of the Company's Cumulative Combined Net Income subsequent most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment; plus (B) an amount equal to December 31, 1991 so long as the Company's Combined Tangible Net Worth is greater than $31,051,000, (ii) 100% of the aggregate of the net cash proceeds received by the Company and its Subsidiaries from any issuance the issue or sale of capital shares Equity Interests (other than Disqualified Stock) of the Company subsequent or EchoStar (other than Equity Interests sold to a Subsidiary of the Company or EchoStar, and provided that any sale of Equity Interests of EchoStar shall only be included in such calculation to the Closing Dateextent that the proceeds thereof are contributed to the capital of the Company other than as Disqualified Stock or Indebtedness), and since the date of the Indenture. The foregoing provisions will not prohibit:
(iii1) the aggregate payment of any dividend within 60 days after the date of declaration thereof, if at such date of declaration such payment would have complied with the provisions of this Indenture;
(2) the redemption, repurchase, retirement or other acquisition of any Equity Interests of the Company in exchange for, or out of the net cash proceeds received by of, the Company from any issuance substantially concurrent sale (other than to a Subsidiary of any Indebtedness the Company) of other Equity Interests of the Company which has been converted into capital shares (other than Disqualified Stock);
(3) the payment of dividends on, or the Company subsequent to the Closing Date, which amount shall be added to the Distribution Fund only after such conversion. Notwithstanding the foregoingredemption of, the Company may acquire its own capital shares for Dish Preferred Stock;
(4) Investments in an aggregate amount from and after not to exceed $20 million; PROVIDED that such Investments are in businesses of the Closing type described in Section 4.18;
(5) Investments to fund the financing activity of DNCC in the ordinary course of its business in an amount not to exceed, as of the date equal to the greater of (x) determination, the sum of (iA) 25$25.0 million plus (B) 30% of the Cumulative Combined Net Income aggregate cost to DNCC for each Satellite Receiver purchased by DNCC and leased by DNCC to a retail consumer in excess of 100,000 units;
(6) the Company subsequent to December 31, 1991, plus (ii) $500,000purchase of employee stock options, or (y) the amount then available under the Distribution Fund, which amount shall be charged capital stock issued pursuant to the Distribution Fund. No Restricted Payment may be made in other than cash or securities which are actively traded on a nationally recognized public market and have a readily ascertainable market value (which value shall be the amount exercise of such Restricted Payment), unless the Company shall have received a report from an independent recognized appraiser as to the fair value of the property to be distributed or transferredemployee stock options, in which case an aggregate amount not to exceed $2 million in any calendar year and in an aggregate amount not to exceed $10 million since the amount of such Restricted Payment shall be deemed to be the greater of its fair value (as determined by such appraiser) or its net book value on the books of the Company. Notwithstanding any of the foregoing provisions date of this paragraph, neither the Company nor any Subsidiary or Affiliate shall make any Restricted Payment if at the time or after giving effect thereto, there shall exist any Default.Indenture;
Appears in 2 contracts
Sources: Indenture (Echostar DBS Corp), Indenture (Echostar DBS Corp)
Restricted Payments. Neither the Company The Credit Parties will not, nor will they permit any of its Subsidiaries Subsidiary to, directly or Affiliates shall indirectly, declare, order, make or set apart any sum for or pay any Restricted Payment Payment, except (a) to make dividends payable solely in the same class of Equity Interest of such Person, (b) to make dividends or set aside any funds therefor unlessother distributions payable to the Credit Parties (directly or indirectly through its Subsidiaries), (c) dividends in an aggregate amount equal to the portion, if any, of the Cumulative Credit on such date that the Borrower elects to apply to this clause (c) of Section 6.10, such election to be specified in a written notice of a Responsible Officer of the Borrower calculating in reasonable detail the amount of Cumulative Credit immediately prior to such election and the amount thereof elected to be so applied; provided, that no Default or Event of Default has occurred and is continuing or would result therefrom and, after giving effect thereto, that the Borrower shall be in compliance on a Pro Forma Basis with the Consolidated Leverage Incurrence Test, (d) other Restricted Payments in an aggregate amount not to exceed $2,500,000 per fiscal year, (e) noncash 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, (f) the repurchase, retirement or other acquisition or retirement for value of Equity Interests (other than Disqualified Stock) of the Company held by any future, present or former employee, director or consultant of the Company or any of its Subsidiaries pursuant to any management equity plan or stock option plan or any other management or employee benefit plan or agreement, provided that the aggregate amount of such Restricted Payments for all such purposes subsequent made pursuant to this clause (f) shall not exceed in any calendar year $2,000,000 (it being understood that the cancellation of Indebtedness owing to the Closing Date would Company from any such persons in connection with any such repurchase, retirement or other acquisition of Equity Interests shall not exceed the sum (as in effect from time be deemed to time, hereinafter referred to as the "Distribution Fund") constitute a Restricted Payment for purposes of (i) 50% this Section 6.10 or any other provision of the Company's Cumulative Combined Net Income subsequent to December 31, 1991 so long as the Company's Combined Tangible Net Worth is greater than $31,051,000this Agreement, (iig) after a Qualified IPO, the aggregate Borrower may pay dividends and make distributions to, or repurchase or redeem shares from, its equity holders in an amount equal to 5% per annum of the net cash proceeds received by the Company Borrower from any issuance or sale public offering of capital shares Equity Interests of the Company subsequent to the Closing Date, Borrower and (iiih) the aggregate dividends of the net cash proceeds received by the Company from any issuance Equity Interests of any Indebtedness of the Company which has been converted into capital shares of the Company subsequent to the Closing Date, which amount shall be added to the Distribution Fund only after such conversion. Notwithstanding the foregoing, the Company may acquire its own capital shares for an aggregate amount from and after the Closing date equal to the greater of (x) the sum of (i) 25% of the Cumulative Combined Net Income of the Company subsequent to December 31, 1991, plus (ii) $500,000, or (y) the amount then available under the Distribution Fund, which amount shall be charged to the Distribution Fund. No Restricted Payment may be made in other than cash or securities which are actively traded on a nationally recognized public market and have a readily ascertainable market value (which value shall be the amount of such Restricted Payment), unless the Company shall have received a report from an independent recognized appraiser as to the fair value of the property to be distributed or transferred, in which case the amount of such Restricted Payment shall be deemed to be the greater of its fair value (as determined by such appraiser) or its net book value on the books of the Company. Notwithstanding any of the foregoing provisions of this paragraph, neither the Company nor any Subsidiary or Affiliate shall make any Restricted Payment if at the time or after giving effect thereto, there shall exist any DefaultUnrestricted Subsidiaries.
Appears in 2 contracts
Sources: Credit Agreement (Riviera Holdings Corp), Credit Agreement (Riviera Holdings Corp)
Restricted Payments. Neither From and after the date hereof the Company nor will not, and will not permit any of its Restricted Subsidiaries to, directly or Affiliates shall indirectly: (i) declare or pay any dividend or make any other payment or distribution on account of the Company's or any of its Restricted Subsidiaries' Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company) or to the direct or indirect holders of the Company's or any of its Restricted Subsidiaries' Equity Interests in their capacity as such (other than dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company); (ii) purchase, redeem or otherwise acquire or retire for value (including without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or any direct or indirect parent of the Company; (iii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness that is pari passu with or subordinated to the Notes (other than Notes), except a payment of interest or principal at Stated Maturity; or (iv) make any Restricted Payment or Investment (all such payments and other actions set aside any funds therefor forth in clauses (i) through (iv) above being collectively referred to as "Restricted Payments"), unless, at the time of and after giving effect theretoto such Restricted Payment:
(a) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof; and
(b) the Company would, at the aggregate time of such Restricted Payments for all Payment and after giving pro forma effect thereto as if such purposes subsequent Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Closing Date would not exceed Fixed Charge Coverage Ratio test set forth in the first paragraph of the covenant described below under caption "--Incurrence of Indebtedness and Issuance of Preferred Stock"; and
(c) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Subsidiaries after the date of the Indenture (excluding Restricted Payments permitted by clause (ii) and (iii) of the next succeeding paragraph), is less than the sum (as in effect from time to time, hereinafter referred to as the "Distribution Fund") of (i) 50% of the Company's Cumulative Combined Consolidated Net Income subsequent of the Company for the period (taken as one accounting period) from the beginning of the first fiscal quarter commencing after the date of the Indenture to December 31, 1991 so long as the end of the Company's Combined Tangible most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Worth Income for such period is greater than $31,051,000a deficit, less 100% of such deficit), plus (ii) 100% of the aggregate of the net cash proceeds received by the Company from any issuance the issue or sale since the date of capital shares the Indenture of Equity Interests of the Company subsequent (other than Disqualified Stock) or of Disqualified Stock or debt securities of the Company that have been converted into such Equity Interests (other than Equity Interests (or Disqualified Stock or convertible debt securities) sold to a Subsidiary of the Closing DateCompany and other than Disqualified Stock or convertible debt securities that have been converted into Disqualified Stock), and plus (iii) to the aggregate extent that any Restricted Investment that was made after the date of the Indenture is sold for cash or otherwise liquidated or repaid for cash, the lesser of (A) the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any) and (B) the initial amount of such Restricted Investment plus (iv) if any Unrestricted Subsidiary (A) is redesignated as a Restricted Subsidiary, the fair market value of such redesignated Subsidiary (as determined in good faith by the Board of Directors) as of the date of its redesignation or (B) pays any cash dividends or cash distributions to the Company or any of its Restricted Subsidiaries, 50% of any such cash dividends or cash distributions made after the date of the Indenture. 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 the Indenture; (ii) the redemption, repurchase, retirement, defeasance or other acquisition of any pari passu or subordinated Indebtedness or Equity Interests of the Company in exchange for, or out of the net cash proceeds received of the substantially concurrent sale or issuance (other than to a Restricted Subsidiary of the Company) of, other Equity Interests of the Company (other than any Disqualified Stock); (iii) 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) the payment of any dividend by a Restricted Subsidiary of the Company to the holders of its Equity Interests on a pro rata basis; (v) Investments in any Person (other than the Company or a Wholly-Owned Restricted Subsidiary) engaged in a Permitted Business in an amount taken together with all other Investments made pursuant to this clause (v) that are at that time outstanding not to exceed $5.0 million; (vi) other Investments in Unrestricted Subsidiaries having an aggregate fair market value, taken together with all other Investments made pursuant to this clause (vi) that are at that time outstanding, not to exceed $2.0 million; (vii) payments to Holdings or Holb▇▇▇ ▇▇▇suant to the tax sharing agreement among Holb▇▇▇ ▇▇▇ other members of the affiliated corporations of which Holb▇▇▇ ▇▇ the common parent; (viii) the designation of certain of the Company's Subsidiaries as Unrestricted Subsidiaries immediately prior to the date of the Indenture; (ix) the payment of a one-time dividend or distribution by the Company from any issuance to pay fees, expenses, commissions and discounts in connection with the offering by Holdings of any Indebtedness of debt securities used to finance the Company which has been converted into capital shares of the Company subsequent to the Closing Date, which amount shall be added to the Distribution Fund only after such conversion. Notwithstanding the foregoing, the Company may acquire its own capital shares for an aggregate amount from and after the Closing date equal to the greater of Preferred Stock Contribution; (x) the sum of (i) 25% redemption in connection with the Transactions of the Cumulative Combined Net Income preferred stock of the Company subsequent to December 31, 1991, plus held by Holb▇▇▇; (ii) $500,000, or (y▇i) the amount then available under the Distribution Fundrepurchase, which amount shall be charged to the Distribution Fund. No Restricted Payment may be made in redemption or other than cash acquisition or securities which are actively traded on a nationally recognized public market and have a readily ascertainable market retirement for value (which value shall be the amount of such Restricted Payment), unless any Equity Interests of Holdings or the Company held by any member of Holdings' or the Company's (or any of their Restricted Subsidiaries) management pursuant to any management equity subscription agreement or stock option agreement or in connection with the termination of employment of any employees or management of Holdings or the Company or their Subsidiaries; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall have not exceed $2.0 million in the aggregate plus the aggregate cash proceeds received a report from an independent recognized appraiser as to by Holdings or the fair value Company after the date of the property Indenture from any reissuance of Equity Interests by Holdings or the Company to members of management of Holdings or the Company and their Restricted Subsidiaries; and (xii) other Restricted Payments in an aggregate amount not to exceed $10.0 million. The Board of Directors may designate any Restricted Subsidiary to be distributed or transferred, an Unrestricted Subsidiary if such designation would not cause a Default; provided that in which case no event shall the amount of such Restricted Payment shall be deemed to be the greater of its fair value (as determined business currently operated by such appraiser) or its net book value on the books of the Company. Notwithstanding any of the foregoing provisions of this paragraph, neither the Company nor any Subsidiary Guarantor be transferred to or Affiliate shall make any Restricted Payment if at the time or after giving effect thereto, there shall exist any Default.held by an
Appears in 1 contract
Sources: Supplemental Indenture (Apcoa Inc)
Restricted Payments. Neither the The Company nor shall not, and shall not permit any of its Restricted Subsidiaries to, directly or Affiliates shall indirectly:
(a) declare or pay any dividend or make any other payment or distribution on account of the Company's Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company) or to the direct or indirect holders of the Company's Equity Interests in their capacity as such (other than dividends or distributions payable solely in the Company's Equity Interests (other than Disqualified Stock) or to the Company);
(b) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any of the Company's Equity Interests;
(c) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Subordinated Indebtedness, except (i) a payment of interest or principal at the Stated Maturity thereof or (ii) Subordinated Indebtedness acquired in anticipation of satisfying a sinking fund obligation, principal installment or payment of principal upon final maturity of such Subordinated Indebtedness, in each case acquired within one year of the date of the sinking fund obligation, principal installment or payment of principal upon maturity; or
(d) make any Restricted Payment or Investment, (all such payments and other actions set aside any funds therefor forth in these clauses (a) through (d) above being collectively referred to as "RESTRICTED PAYMENTS"), unless, at the time of and after giving effect thereto, the aggregate to such Restricted Payment:
(a) no Default or Event of Default has occurred and is continuing or would occur as a consequence of such Restricted Payments for all Payment; and
(b) the Company would, at the time of such purposes subsequent Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Closing Date would not exceed Fixed Charge Coverage Ratio test set forth in Section 4.09(a); and
(c) such Restricted Payment, together with the sum aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after the date hereof (as in effect from time to time, hereinafter referred to as the "Distribution Fund"excluding Restricted Payments permitted by clauses (2) and (3) of the next paragraph), is less than the sum, without duplication, of:
(i) 50% of the Company's Cumulative Combined Consolidated Net Income subsequent for the period (taken as one accounting period) from April 1, 2002 to December 31, 1991 so long as the end of the Company's Combined Tangible most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Worth Income for such period is greater than $31,051,000a deficit, less 100% of such deficit), plus
(ii) 100% of the aggregate of the net cash proceeds received by the Company since the date hereof from any issuance the issue or sale of its Equity Interests (other than Disqualified Stock) or Equity Interests of any of the Company's parent entities (which proceeds are received as a contribution to the Company's common or non-redeemable preferred equity capital) or from the issue or sale of convertible or exchangeable Disqualified Stock or convertible or exchangeable debt securities of the Company that have been converted into or exchanged for such Equity Interests (other than Equity Interests or Disqualified Stock or debt securities sold to a Subsidiary of the Company), plus
(iii) to the extent that any Restricted Investment that was made after the date hereof is sold for cash or otherwise liquidated or repaid for cash, the lesser of (1) the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any) and (2) the initial amount of such Restricted Investment. So long as no Default has occurred and is continuing or would be caused thereby, the preceding provisions will not prohibit:
(1) the payment of any dividend within 60 days after the date of declaration of the dividend, if at the date of declaration the dividend payment would have complied with the provisions hereof;
(2) the redemption, repurchase, retirement, defeasance or other acquisition of any Subordinated Indebtedness or of any of the Company's Equity Interests by conversion into, or by an exchange for, shares of the Company subsequent to the Closing DateCompany's Equity Interests (other than Disqualified Stock), and (iii) the aggregate or in exchange for, or out of the net cash proceeds received of the substantially concurrent sale (other than to any of the Company's Restricted Subsidiaries) of, the Company's Equity Interests (other than Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such redemption, repurchase, retirement, defeasance or other acquisition will be excluded from clause (c)(ii) of the preceding paragraph;
(3) the repurchase, retirement or redemption of any Subordinated Indebtedness with the proceeds from an Asset Sale to the extent required by the agreement governing such Subordinated Indebtedness, but only (x) if the Company has complied with Section 4.12 and (y) to the extent of the Excess Proceeds remaining after the offer made to Holders of the Notes pursuant to the Asset Sale;
(4) the defeasance, redemption, repurchase or other acquisition of Subordinated Indebtedness with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness; and
(5) other Restricted Payments in an aggregate amount since June 28, 2002 not to exceed $10.0 million. The amount of all Restricted Payments (other than cash) will be the fair market value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company from any issuance or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any Indebtedness assets or securities that are required to be valued by this Section 4.10 will be determined by the Board of Directors of the Company which has been converted into capital shares of the Company subsequent whose resolutions with respect thereto will be delivered to the Closing DateTrustee. The Board of Directors' determination must be based upon an opinion or appraisal issued by an accounting, which amount shall be added to appraisal or investment banking firm of national standing if the Distribution Fund only after such conversionfair market value exceeds $5.0 million. Notwithstanding Not later than the foregoingdate of making any Restricted Payment, the Company may acquire its own capital shares for an aggregate amount from and after the Closing date equal shall deliver to the greater of (x) the sum of (i) 25% of the Cumulative Combined Net Income of the Company subsequent to December 31, 1991, plus (ii) $500,000, or (y) the amount then available under the Distribution Fund, which amount shall be charged to the Distribution Fund. No Restricted Payment may be made in other than cash or securities which are actively traded on a nationally recognized public market and have a readily ascertainable market value (which value shall be the amount of such Restricted Payment), unless the Company shall have received a report from Trustee an independent recognized appraiser as to the fair value of the property to be distributed or transferred, in which case the amount of Officers' Certificate stating that such Restricted Payment shall be deemed to be is permitted and setting forth the greater basis upon which the calculations required by this Section 4.10 were computed, together with a copy of its fair value (as determined any fairness opinion or appraisal required by such appraiser) or its net book value on the books of the Company. Notwithstanding any of the foregoing provisions of this paragraph, neither the Company nor any Subsidiary or Affiliate shall make any Restricted Payment if at the time or after giving effect thereto, there shall exist any DefaultIndenture.
Appears in 1 contract
Sources: Indenture (Gallipolis Care LLC)
Restricted Payments. Neither (a) The Borrower shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly:
(i) declare or pay any dividend or make any distribution on account of the Company nor Borrower's or any of its Restricted Subsidiaries' Equity Interests (other than (x) dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Borrower or such Restricted Subsidiary or (y) dividends or distributions payable to the Borrower or any Wholly Owned Subsidiary of the Borrower, or (z) pro rata dividends or pro rata distributions payable by a Restricted Subsidiary);
(ii) purchase, redeem or otherwise acquire or retire for value any Equity Interests of the Borrower (other than any such Equity Interests owned by the Borrower or any Wholly Owned Subsidiary of the Borrower);
(iii) subject to Section 4.7(e), voluntarily purchase, redeem or otherwise acquire or retire for value any Indebtedness other than the Bridge Notes; or
(iv) make any Restricted Investment (all such payments and other actions set forth in clauses (i) through (iv) above, including those occurring prior to the date hereof, being collectively referred to as "Restricted Payments"), unless, subject to Section 4.7(f) hereof, at the time of such Restricted Payment:
(1) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof; and
(2) subject to Section 4.7(f), such Restricted Payment, together with the aggregate of all other Restricted Payments made by the Borrower and its Restricted Subsidiaries after the date hereof (including Restricted Payments permitted by clauses (ii) through (ix) of Section 4.7(b)), is less than the sum of (x) the difference between Cumulative EBITDA and 1.5 times Cumulative Interest Expense plus (y) Capital Stock Sale Proceeds (provided that (A) this clause (y) shall apply only to a Restricted Payment made by the Borrower to the Parent or constitutes a Restricted Investment and (B) any Capital Stock Sale Proceeds received after the Closing Date by the Borrower or any of its Subsidiaries shall be used to repay Bridge Loans in accordance with Section 2.4 hereof), plus (z) cash received by the Borrower or Affiliates shall make a Restricted Subsidiary from a Non-Restricted Subsidiary (other than cash which is or is required to be repaid or returned to such Non-Restricted Subsidiary); provided, however, that to the extent that any Restricted Payment Investment that was made after the date hereof is sold for cash or set aside any funds therefor unless, after giving effect theretootherwise liquidated or repaid for cash, the aggregate amount credited pursuant to this clause (y) shall be the lesser of (A) the cash received with respect to such sale, liquidation or repayment of such Restricted Payments for all Investment (less the cost of such purposes subsequent sale, liquidation or repayment, if any) and (B) the initial amount of such Restricted Investment, in each case as determined in good faith by the Borrower's Board of Directors.
(b) The foregoing provisions in Section 4.7(a) shall 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 Agreement;
(ii) subject to Section 2.4, (x) the redemption, repurchase, retirement or other acquisition of any Equity Interests of the Borrower or any Restricted Subsidiary or (y) an Investment in any Person, in each case, in exchange for, or out of the proceeds of, the substantially concurrent sale (other than to a Restricted Subsidiary of the Borrower) of other Equity Interests (other than any Disqualified Stock) of the Borrower, provided that the Borrower delivers to the Closing Date would not exceed Administrative Agent (with a copy for each Lender):
(1) with respect to any transaction involving in excess of $1 million, a resolution of the sum Board of Directors set forth in an Officers' Certificate certifying that such transaction is approved by a majority of the directors on the Board of Directors; and
(2) with respect to any transaction involving in excess of $25 million, an opinion as to the fairness to the Borrower or such Subsidiary from a financial point of view issued by an investment banking firm of national standing, together with an Officers' Certificate to the effect that such opinion complies with this clause (2), provided that the amount of such proceeds from the sale of any such Equity Interests shall be excluded in effect each case from time Capital Stock Sale Proceeds for purposes of clause (a)(iv)(2)(y), above;
(iii) Investments by the Borrower or any Restricted Subsidiary in a Non-Controlled Subsidiary which (A) has no Indebtedness on a consolidated basis other than Indebtedness incurred to timefinance the purchase of equipment used in a Cable Business, hereinafter referred (B) has no restrictions (other than restrictions imposed or permitted by this Agreement or the indentures governing the Other Qualified Notes or any other instrument governing unsecured indebtedness of the Borrower which is pari passu with the Bridge Notes) on its ability to as pay dividends or make any other distributions to the "Distribution Fund"Borrower or any of its Restricted Subsidiaries, (C) is or will be a Cable Business and (D) uses the proceeds of such Investment for constructing a Cable Business or the working capital needs of a Cable Business;
(iv) subject to Section 2.4, the redemption, purchase, defeasance, acquisition or retirement of Indebtedness that is subordinated to the Bridge Notes (including premium, if any, and accrued and unpaid interest) made by exchange for, or out of the proceeds of the substantially concurrent sale (other than to a Restricted Subsidiary of the Borrower) of (iA) 50% Equity Interests of the Company's Cumulative Combined Net Income subsequent Borrower, provided that the amount of such proceeds from the sale of any such Equity Interests shall be excluded in each case from Capital Stock Sale Proceeds for purposes of clause (a)(iv)(2)(y), above, or (B) Refinancing Indebtedness permitted to December 31, 1991 so long as be incurred under Section 4.9 hereof;
(v) Investments by the Company's Combined Tangible Net Worth Borrower or any Restricted Subsidiary in a Non-Controlled Subsidiary which is greater than or will be a Cable Business in an amount not to exceed $31,051,000, (ii) 80 million in the aggregate plus the sum of the net (x) cash proceeds received by the Company Borrower or a Restricted Subsidiary from any issuance a Non-Restricted Subsidiary (other than cash which is or is required to be repaid or returned to such Non-Restricted Subsidiary) and (y) Capital Stock Sale Proceeds (excluding the aggregate net sale proceeds to be received upon conversion of the Convertible Subordinated Notes), provided that the amount of such proceeds from the sale of capital any such Equity Interests shall be excluded in each case from Capital Stock Sale Proceeds for purposes of clause (a)(iv)(2)(y), above;
(vi) Investments by the Borrower or any Restricted Subsidiary in Permitted Non-Controlled Assets;
(vii) the extension by the Borrower or any Restricted Subsidiary of trade credit to a Non-Restricted Subsidiary extended on usual and customary terms in the ordinary course of business, provided that the aggregate amount of such trade credit shall not exceed $25 million at any one time;
(viii) the payment of cash dividends on the Preferred Stock accruing on or after February 15, 2004 or any mandatory redemption or repurchase of the Preferred Stock, in each case, in accordance with the Certificate of Designations therefor; and
(ix) the exchange of all of the outstanding shares of Preferred Stock for Subordinated Debentures in accordance with the Company subsequent to Certificate of Designations for the Closing DatePreferred Stock.
(c) Any Investment in a Subsidiary (other than the issuance, and (iii) the aggregate transfer or other conveyance of Equity Interests of the net cash proceeds received Borrower (or any Capital Stock Sale Proceeds therefrom)) that is designated by the Company from any issuance Board of any Indebtedness Directors as a Non-Restricted Subsidiary shall become a Restricted Payment made on the date of such designation in the Company which has been converted into capital shares amount of the Company subsequent to the Closing Date, which amount shall be added to the Distribution Fund only after such conversion. Notwithstanding the foregoing, the Company may acquire its own capital shares for an aggregate amount from and after the Closing date equal to the greater of (x) the sum book value of (i) 25% of such Subsidiary on the Cumulative Combined Net Income of the Company subsequent to December 31, 1991, plus (ii) $500,000, or date such Subsidiary becomes a Non-Restricted Subsidiary and (y) the amount then available under fair market value of such Subsidiary on such date as determined (A) in good faith by the Distribution FundBoard of Directors of such Subsidiary if such fair market value is determined to be less than $25 million and (B) by an investment banking firm of national standing if such fair market value is determined to be in excess of $25 million.
(d) Not later than the fifth Business Day after making any Restricted Payment (other than those referred to in sub-clause (vii) of Section 4.7(b)), which amount the Borrower shall be charged deliver to the Distribution Fund. No Restricted Payment may be made in other than cash or securities which are actively traded on Administrative Agent (with a nationally recognized public market and have a readily ascertainable market value (which value shall be the amount of such Restricted Payment), unless the Company shall have received a report from copy for each Lender) an independent recognized appraiser as to the fair value of the property to be distributed or transferred, in which case the amount of Officers' Certificate stating that such Restricted Payment is permitted and setting forth the basis upon which the calculations required by this Section 4.7 were computed, which calculations may be based upon the Borrower's latest available financial statements.
(e) Notwithstanding any provision in this Section 4.7 or in this Agreement to the contrary, the Borrower shall be deemed to be the greater not, and shall not permit any of its fair Restricted Subsidiaries to, directly or indirectly, voluntarily purchase, redeem, or otherwise acquire or retire for value any Indebtedness other than the Bridge Notes.
(as determined by such appraiserf) or its net book value on the books of the Company. Notwithstanding any other provision in this Section 4.7 or in this Agreement to the contrary, the Borrower shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, make one or more Restricted Payments to the foregoing provisions of this paragraphParent that, neither individually or in the Company nor any Subsidiary or Affiliate shall make any Restricted Payment if at the time or after giving effect theretoaggregate, there shall exist any Defaultexceed $500 million.
Appears in 1 contract
Sources: Bridge Loan Agreement (NTL Inc /De/)
Restricted Payments. Neither the The Company nor will not, and will not permit any of its Restricted Subsidiaries to, directly or Affiliates shall indirectly:
(a) declare or pay any dividend or make any other payment or distribution on account of the Company's or any of its Restricted Subsidiaries' Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company) other than dividends or distributions to the Company or any Guarantor or payable in Equity Interests (other than Disqualified Stock) of the Company;
(b) purchase, redeem or otherwise acquire or retire for value (including without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company, any entity that beneficially owns a majority of the Voting Stock of the Company or any entity through which such entity beneficially owns such stock;
(c) purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness that is subordinated in right of payment to the Notes (other than (i) the purchase, repurchase or other acquisition of Indebtedness that is subordinated to the Notes in anticipation of satisfying a sinking fund obligation, principal installment or any payment at final maturity, in each case, due within one year of the date of such purchase, repurchase or other acquisition, and (ii) Indebtedness that is permitted under clause (iv) of the covenant described under Section 4.8(b) of this Indenture; or
(d) make any Restricted Payment or Investment (all such payments and other actions set aside any funds therefor unlessforth in clauses (a) through (d) above being collectively referred to as "RESTRICTED PAYMENTS"), UNLESS, at the time of and after giving effect theretoto such Restricted Payment:
(i) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof, and
(ii) the aggregate Company would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.8(a); and
(iii) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company or any of its Restricted Subsidiaries after the Initial Maturity Date (excluding Restricted Payments permitted by clauses (ii), (iii), (iv), (vi), (ix) or (x) of the next succeeding paragraph), is less than the sum of:
(1) 50% of the Consolidated Net Income of the Company for all the period (taken as one accounting period) from the beginning of the first fiscal quarter immediately following the Initial Maturity Date to the end of the Company's most recently ended fiscal quarter for which internal financial statements are available at the time of such purposes Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit); plus
(2) 100% of the aggregate net cash proceeds or the fair market value of property other than cash received by the Company as a contribution to its common equity capital or from the issue or sale since the Closing Date of Equity Interests of the Company (other than Disqualified Stock), or of Disqualified Stock or debt securities of the Company that have been converted into or exchanged for such Equity Interests (other than Equity Interests (or Disqualified Stock or convertible debt securities) sold to a Restricted Subsidiary of the Company and other than Disqualified Stock or convertible debt securities that have been converted into Disqualified Stock); plus
(3) to the extent not already included in Consolidated Net Income of the Company for such period without duplication, any Restricted Investment that was made by the Company or any of its Restricted Subsidiaries after the Closing Date is sold for cash or otherwise liquidated or repaid for cash, or any Unrestricted Subsidiary which is designated as an Unrestricted Subsidiary subsequent to the Closing Date would is sold for cash or otherwise liquidated or repaid for cash, the lesser of-
(A) the cash return of capital with respect to such Restricted Investment or Unrestricted Subsidiary (less the cost of disposition, if any); and
(B) the initial amount of such Restricted Investment or designated amount of such Unrestricted Subsidiary; plus
(4) an amount equal to the net reduction in Investments in Unrestricted Subsidiaries resulting from dividends, repayments of loans or advances or other transfers of assets, in each case to the Company or any Restricted Subsidiary from any Unrestricted Subsidiary; plus
(5) any amount which previously was treated as a Restricted Payment on account of any Guarantee entered into by the Company or any Restricted Subsidiary to the extent that such Guarantee has not exceed been called upon and the sum (as in effect from time to time, hereinafter referred to as the "Distribution Fund") of obligation arising under such Guarantee no longer exists. The foregoing provisions shall not prohibit:
(i) 50% the payment of any dividend within 60 days after the Company's Cumulative Combined Net Income subsequent to December 31date of declaration thereof, 1991 so long as if at said date of declaration such payment would have complied with the Company's Combined Tangible Net Worth is greater than $31,051,000, provisions of this Indenture;
(ii) the aggregate redemption, repurchase, retirement, defeasance or other acquisition of any Indebtedness to AutoNation with respect to the General Motors Letter of Credit which is subordinated to the Notes or Equity Interests of the Company in exchange for, or out of the net cash proceeds received by of the Company from any issuance or substantially concurrent sale (other than to a Restricted Subsidiary of capital shares the Company) of, Equity Interests of the Company subsequent to (other than any Disqualified Stock), PROVIDED that, the Closing Dateamount of any such net cash proceeds that are utilized for any such redemption, and repurchase, retirement, defeasance or other acquisition shall be excluded from clause (d)(iii)(2) of the preceding paragraph;
(iii) the aggregate defeasance, redemption, repurchase or other acquisition of Indebtedness which is subordinated to the Notes in exchange for or with the net cash proceeds received by from an incurrence of Permitted Refinancing Indebtedness;
(iv) the Company from any issuance payment of any Indebtedness dividend or distribution by a Restricted Subsidiary of the Company which to the holders of its common Equity Interests so long as the Company or another Restricted Subsidiary receives at least its pro rata share of such dividend or distribution in accordance with its Equity Interests;
(v) so long as no Default or Event of Default has been converted into capital shares occurred and is continuing, the repurchase, redemption or other acquisition or retirement of any Equity Interests of the Company subsequent to the Closing Dateor any of its Restricted Subsidiaries from employees, which amount shall be added to the Distribution Fund only after such conversion. Notwithstanding the foregoingformer employees, the Company may acquire its own capital shares for an aggregate amount from directors, former directors, consultants and after the Closing date equal to the greater of (x) the sum of (i) 25% of the Cumulative Combined Net Income former consultants of the Company subsequent to December 31or any of its Restricted Subsidiaries (or permitted transferees of any of such persons), 1991, plus (ii) $500,000, or (y) the amount then available under the Distribution Fund, which amount shall be charged pursuant to the Distribution Fund. No Restricted Payment may be made in other than cash or securities which are actively traded on a nationally recognized public market and have a readily ascertainable market value (which value shall be the amount of such Restricted Payment), unless the Company shall have received a report from an independent recognized appraiser as to the fair value terms of the property to be distributed or transferredagreements, in which case the amount of such Restricted Payment shall be deemed to be the greater of its fair value (as determined by such appraiser) or its net book value on the books of the Company. Notwithstanding any of the foregoing provisions of this paragraphincluding employment agreements, neither the Company nor any Subsidiary or Affiliate shall make any Restricted Payment if at the time or after giving effect thereto, there shall exist any Default.equity subscription
Appears in 1 contract
Sources: Indenture (Anc Rental Corp)
Restricted Payments. Neither the Company nor any of its Subsidiaries (a) Declare or Affiliates shall make make, or agree to declare or make, directly or indirectly, any Restricted Payment; provided, however, that a Restricted Payment may be made if (i) no Default or set aside any funds therefor unless, Event of Default shall have occurred and be continuing at the time of or immediately after giving effect theretoto such Restricted Payment, (ii) immediately after giving effect to such Restricted Payment the Company could incur at least $1.00 of Coverage Indebtedness in accordance with Section 6.01 and (iii) immediately after giving effect to such Restricted Payment, the aggregate amount of such all Restricted Payments for all such purposes subsequent to (including the Fair Market Value of any non-cash Restricted Payment) declared or made on or after the Closing Date would (other than those Restricted Payments described in clauses (iii) through (xiii) of the next paragraph) does not exceed the sum (as in effect from time to time, hereinafter referred to as the "Distribution Fund") of of:
(i) 50% of the Company's Cumulative Combined Consolidated Net Income subsequent to December 31, 1991 so long of the Company on a cumulative basis during the period (taken as one accounting period) from and including the first day of the Company's Combined Tangible ’s fiscal quarter during which the Closing Date occurs and ending on the last day of the Company’s fiscal quarter immediately preceding the date of such Restricted Payment (or in the event such Consolidated Net Worth is greater than $31,051,000Income shall be a deficit, minus 100% of such deficit), plus
(ii) 100% of the aggregate of the net cash proceeds of and the Fair Market Value of any property or other asset received by the Company from (1) any issuance capital contribution to the Company after the Closing Date or any issue or sale after the Closing Date of any Qualified Equity Interests and (2) the issue or sale after the Closing Date of any Indebtedness or other securities of the Company convertible into or exercisable for Qualified Equity Interests that have been so converted or exercised, plus
(iii) in the case of a distribution on or disposition or repayment of any Restricted Investment, an amount (to the extent not included in the calculation of Consolidated Net Income referred to in (i)) equal to the lesser of (x) the return of capital with respect to such Investment (including by dividend, distribution or sale of capital shares Equity Interests) and (y) the amount of such Investment that was treated as a Restricted Payment, in either case, less the cost of the Company subsequent disposition or repayment of such Investment (to the extent not included in the calculation of Consolidated Net Income referred to in (i)), plus
(iv) with respect to any Unrestricted Subsidiary that is redesignated as a Restricted Subsidiary after the Closing Date in accordance with the definition of Unrestricted Subsidiary (so long as the designation of such Subsidiary as an Unrestricted Subsidiary was treated as a Restricted Payment made after the Closing Date, and only to the extent not included in the calculation of Consolidated Net Income referred to in (iiii)), an amount equal to the lesser of (x) the aggregate of the net cash proceeds received by the Company from any issuance of any Indebtedness proportionate interest of the Company which has been converted into capital shares of the Company subsequent or any Restricted Subsidiary in an amount equal to the Closing Dateexcess of (I) the total assets of such Unrestricted Subsidiary, which amount shall be added to valued on an aggregate basis at the Distribution Fund only after lesser of book value and Fair Market Value thereof, over (II) the total liabilities of such conversion. Unrestricted Subsidiary, determined in accordance with GAAP, and (y) the Designation Amount at the time of such Unrestricted Subsidiary’s designation as an Unrestricted Subsidiary.
(b) Notwithstanding the foregoing, the Company, ▇▇▇▇ Corp. and any Restricted Subsidiary may make, or agree to pay or make, the following Restricted Payments:
(i) the payment of any dividend or redemption of any Equity Interests or Subordinated Indebtedness within 60 days after the date of declaration thereof or call for redemption if, at such date of declaration or call for redemption, such payment or redemption was permitted by the provisions of the preceding paragraph as of the date of declaration and the payment itself will be deemed to have been paid on such date of declaration);
(ii) any Restricted Payment made in exchange for, or out of the net proceeds of the substantially concurrent sale of, Qualified Equity Interests;
(iii) the purchase, repayment, redemption, repurchase, defeasance or other acquisition or retirement for value by the Company may acquire its own capital shares for of any Subordinated Indebtedness of the Company, ▇▇▇▇ Corp. or any Restricted Subsidiary in exchange for, or out of proceeds of, Refinancing Indebtedness incurred as permitted by and in compliance with Section 6.01;
(iv) Restricted Investments after the Closing Date not to exceed an aggregate amount from and (net of any returns of capital with respect to such Investments (including by dividend, distribution or sale)) of $10,000,000;
(v) Restricted Investments after the Closing date equal Date in joint ventures not to exceed an aggregate amount (net of any returns of capital with respect to such Investments (including by dividend, distribution or sale)) of $100,000,000; provided, however, that, at the greater time any such Investment is made, the net book value of the Company’s inventory (xincluding “work-in-progress” inventory, land held for development and land held for sale) and cash securing the sum of (i) 25Obligations and any other Pari-Passu Lien Obligations is at least 275% of the Cumulative Combined Net Income aggregate principal amount of the Company subsequent Letters of Credit then outstanding plus the aggregate amount of such other Pari-Passu Lien Obligations;
(vi) Restricted Payments made after the Closing Date in respect of Specified Obligations not to December 31exceed $70,000,000; provided, 1991however, plus (ii) that such Restricted Payments may exceed $500,000, or (y) the amount then available under the Distribution Fund, which amount shall be charged 70,000,000 to the Distribution Fund. No Restricted Payment may be made extent that the Company receives a cash equity contribution from JFSCI in other than cash or securities which are actively traded on a nationally recognized public market and have a readily ascertainable market value (which value shall be the amount of such excess within 10 Business Days following such Restricted Payment;
(vii) Tax Distributions (other than payments with respect to Specified Obligations);
(viii) the purchase, repayment, redemption, repurchase, defeasance or other acquisition or retirement for value of Subordinated Indebtedness of the Company, ▇▇▇▇ Corp. or any Restricted Subsidiary with the proceeds of the offering of the Notes;
(ix) the declaration and payment of dividends to holders of any class or series of Disqualified Equity Interests of the Company or any of its Restricted Subsidiaries issued in accordance with and to the extent permitted by Section 6.01; provided, however, that, at the time of payment of such dividend, no Default or Event of Default shall have occurred and be continuing (or result therefrom);
(x) repurchases of Equity Interests deemed to occur upon exercise of equity options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(xi) Restricted Payments that are made with cash or Cash Equivalents received by the Company as capital contributions to its equity or from the issuance or sale of Qualified Equity Interests of the Company, in each case, after the Closing Date and are designated at such time as an “Excluded Contribution” pursuant to an officer’s certificate delivered by the Company;
(xii) the repurchase, redemption or other acquisition or retirement for value of any Subordinated Indebtedness pursuant to Section 6.04; provided, however, that all Notes tendered by Holders in connection with a Change of Control Offer or Asset Sale Offer (each, as defined in the Indenture), unless as applicable, have been purchased, redeemed, defeased or acquired for value; or
(xiii) Restricted Investments after the Company shall have received a report from Closing Date in joint ventures (other than amounts expended in respect of Specified Obligations) in an independent recognized appraiser as amount not to exceed an aggregate amount (net of any returns of capital with respect to such Investments (including by dividend, distribution or sale)) of $70,000,000 (the fair value “JV Payment Basket”); provided that, for purposes of determining the property to be distributed or transferredaggregate and permitted amounts of Restricted Payments made, in which case the amount of such any guarantee of any Investment in any person that was initially treated as a Restricted Payment and which was subsequently terminated or expired, net of any amounts paid by the Company, ▇▇▇▇ Corp. or any Restricted Subsidiary in respect of such guarantee, shall be deemed to be the greater of its fair value (as determined by such appraiser) or its net book value on the books of the Company. Notwithstanding any of the foregoing provisions of this paragraph, neither the Company nor any Subsidiary or Affiliate shall make any Restricted Payment if at the time or after giving effect thereto, there shall exist any Defaultdeducted.
Appears in 1 contract
Sources: Letter of Credit Facility Agreement (Vistancia Marketing, LLC)
Restricted Payments. Neither the The Company will not, nor will it permit any of its Subsidiaries Subsidiary to, declare or Affiliates shall make make, directly or indirectly, any Restricted Payment or set aside any funds therefor unlessif at the time of, and after giving effect theretoto, such proposed Restricted Payment, (x) no Default or Event of Default shall have occurred and be continuing, (y) the Company could not Incur at least $1.00 of additional Debt pursuant to clause (1) of the first paragraph of Section 4.03; and the aggregate amount of such Restricted Payment and all other Restricted Payments for all such purposes subsequent declared or made since the Issue Date (the amount of any Restricted Payment, if made other than in cash, to be based upon Fair Market Value) would exceed an amount equal to the Closing Date would not exceed Available Amount; provided that, notwithstanding the sum (as in effect from time to time, hereinafter referred to as the "Distribution Fund") of foregoing:
(i) 50% the Company may pay dividends on its Equity Interests within 60 days of the Company's Cumulative Combined Net Income subsequent declaration thereof if, on said declaration date, such dividends could have been paid in compliance with this Indenture; provided, however, that at the time of such payment of such dividend, no other Default or Event of Default shall have occurred and be continuing (or result therefrom); provided, further, however, that, any such dividend following the Issue Date shall be included in the calculation of the amount of Restricted Payments;
(ii) the Company may purchase, repurchase, redeem, legally defease, acquire or retire for value Equity Interests of the Company or Subordinated Obligations on or after the Issue Date in exchange for, or out of the proceeds of the substantially concurrent sale of, Equity Interests of the Company (other than Disqualified Stock and other than Equity Interests issued or sold to December 31a Subsidiary of the Company or an employee stock ownership plan or trust established by the Company or any such Subsidiary for the benefit of their employees); provided, 1991 however, that (x) such purchase, repurchase, redemption, legal defeasance, acquisition or retirement shall be excluded in the calculation of the amount of Restricted Payments and (y) the Equity Interest Sale Proceeds from such exchange or sale shall be excluded from the calculation pursuant to clause (2) of the definition of Available Amount;
(iii) the Company may make any purchase, repurchase, redemption, defeasance or other acquisition or retirement for value of any Subordinated Obligation in the event of a Change of Control or an Asset Sale in accordance with provisions similar to those in Section 4.06 or Section 4.12; provided that, prior to or simultaneously with such purchase, repurchase, redemption, defeasance or other acquisition or retirement, the Company has made the Change of Control Offer or Asset Sales Prepayment Offer, as applicable, as required with respect to the Securities and has completed the repurchase of all Securities validly tendered for payment in connection with such Change of Control Offer or Asset Sales Prepayment Offer; provided, however, that such purchase, repurchase, redemption, defeasance or other acquisition or retirement following the Issue Date shall be included in the calculation of the amount of Restricted Payments;
(iv) purchase, repurchase, redeem, legally defease, acquire or retire for value any Subordinated Obligations on or after the Issue Date in exchange for, or out of the proceeds of the substantially concurrent sale of, Refinancing Indebtedness; provided, however, that such purchase, repurchase, redemption, legal defeasance, acquisition or retirement shall be excluded in the calculation of the amount of Restricted Payments;
(v) the Company may make any other Restricted Payments on or after the Issue Date not to exceed an aggregate amount of $50.0 million;
(vi) so long as no Event of Default then exists or would result therefrom, additional Restricted Payments so long as the Company's Combined Tangible Net Worth Consolidated Total Leverage Ratio as of the last day of the most recently ended Measurement Period (and calculated giving Pro Forma Effect to such Restricted Payment and as if such Restricted Payment was made as the last day of the most recently ended Measurement Period) is equal to or greater than $31,051,0005.75 to 1.00;
(vii) following consummation of a Qualifying IPO by the Company or a Parent Company, any Restricted Payments in an amount in any fiscal year not to exceed an amount equal to the sum of (iiA) the aggregate 6.00% of the net cash proceeds received by or contributed to the Company from such Qualifying IPO and any issuance or sale of capital shares other public offering of the Company’s common equity or the common equity of any Parent Company subsequent to the Closing Date, and plus (iiiB) the aggregate 7.00% of the net cash proceeds received by the Company from any issuance of any Indebtedness Market Capitalization of the Company which has been converted into capital shares of the Company subsequent to the Closing Date, which amount shall be added to the Distribution Fund only after Person issuing Equity Interests in such conversion. Notwithstanding the foregoing, Qualifying IPO;
(viii) [reserved];
(ix) the Company may acquire declare and pay dividends with respect to its own capital common Equity Interests or Qualified Preferred Equity Interests payable solely in additional shares for an aggregate amount from and after the Closing date equal to the greater of its common Equity Interests or Qualified Preferred Equity Interests;
(x) Subsidiaries (other than those directly owned, in whole or part, by the sum Company) may declare and pay dividends ratably with respect to their common Equity Interests;
(xi) the Subsidiaries may make Restricted Payments to the Company; provided that the Company shall, within a reasonable time following receipt of (i) 25% any such Restricted Payment, use all of the Cumulative Combined Net Income proceeds thereof for general corporate ongoing working capital purposes (including the payment of dividends or distributions otherwise permitted pursuant to this Section 4.04(a));
(xii) the Company may make additional Restricted Payments in cash; provided that, as of the Company subsequent to December 31, 1991, plus (ii) $500,000, or (y) date of the amount then available under the Distribution Fund, which amount shall be charged to the Distribution Fund. No Restricted Payment may be made in other than cash or securities which are actively traded on a nationally recognized public market and have a readily ascertainable market value (which value shall be the amount payment of such Restricted Payment), unless the Company shall have received a report from an independent recognized appraiser as to the fair value of the property to be distributed or transferred, in which case the amount of such Restricted Payment shall be deemed to be the greater of its fair value (as determined by such appraiser) or its net book value on the books of the Company. Notwithstanding any of the foregoing provisions of this paragraph, neither the Company nor any Subsidiary or Affiliate shall make any Restricted Payment if at the time or and after giving effect thereto, there each of the Payment Conditions shall exist be satisfied;
(xiii) the Company may make payments to holders of its Equity Interests in lieu of the issuance of fractional shares of its Equity Interests; provided, however, that such payments shall be excluded in the calculation of the amount of Restricted Payments;
(xiv) repurchase Equity Interests of the Company deemed to be issued upon the exercise of stock options or warrants or similar rights (i) if such Equity Interests represent a portion of the exercise price of such options or warrants and (ii) for purposes of tax withholding by the Company in connection with such exercise or vesting; provided, however, that such repurchase shall be excluded in the calculation of the amount of Restricted Payments; and
(xv) the Company and the Subsidiaries may make Restricted Payments consisting of the repurchase or other acquisition of shares of, or options to purchase shares of, Equity Interests of the Company or any Default.of its Subsidiaries from employees, former employees, consultants, former consultants, directors or former directors of the Company or any Subsidiary (or their permitted transferees), in each case pursuant to stock option plans, stock plans, employment agreements or other employee benefit plans approved by the Board of Directors; provided that no Default has occurred and is continuing; and provided, further that the aggregate amount of such Restricted Payments made in any fiscal year of the Company shall not exceed the sum of (x) $5,500,000 (with unused amounts for any year being carried over to the next succeeding year, but not to any subsequent year) and (y) any cash proceeds from the sale of Equity Interests (other than Disqualified Stock) of the Company to employees, directors or consultants of the Company or any of its Subsidiaries that occur after the Issue Date and any cash proceeds from key man life insurance policies received after the Issue Date; provided, further, however, that the Equity Interest Sale Proceeds from sales shall be excluded from the calculation pursuant to clause (2) of the definition of Available Amount and that the amount of such repurchases and other acquisitions following the Issue Date (other than those made with the cash proceeds from the sale of Equity Interests and proceeds from key man life insurance policies) shall be excluded in the calculation of the amount of Restricted Payments;
Appears in 1 contract
Restricted Payments. Neither the (a) The Company nor will not, and will not permit any of its Restricted Subsidiaries to, directly or Affiliates shall indirectly:
(i) declare or pay any dividend or make any other payment or distribution on account of the Company's or any of its Restricted Subsidiaries' Equity Interests or to the direct or indirect holders of the Company's or any of its Restricted Subsidiaries' Equity Interests in their capacity as such (other than dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company or payable to the Company or a Restricted Subsidiary of the Company);
(ii) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or any direct or indirect parent of the Company;
(iii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness that is subordinated to the Notes or the Subsidiary Guarantees, except a payment of interest or principal at the Stated Maturity thereof; or
(iv) make any Restricted Payment or Investment (all such payments and other actions set aside any funds therefor forth in these clauses (i) through (iii) above being collectively referred to as "Restricted Payments"), unless, at the time of and after giving effect thereto, the aggregate to such Restricted Payment:
(i) no Default or Event of Default has occurred and is continuing or would occur as a consequence of such Restricted Payments for all Payment;
(ii) the Company would, at the time of such purposes subsequent Restricted Payment and after giving pro forma effect thereto, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Closing Date would not exceed Fixed Charge Coverage Ratio test set forth in Section 3.3(a) above; and
(iii) such Restricted Payment, together with the sum aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after the date of this Indenture (as in effect from time to timeexcluding Restricted Payments permitted by clauses (ii), hereinafter referred to as the "Distribution Fund"(iii), (vi), (vii), (viii) and (ix) of Section 3.4(b) below), is less than the sum, without duplication, of:
(iA) 50% of the Company's Cumulative Combined Consolidated Net Income subsequent of the Company for the period (taken as one accounting period) from the beginning of the fiscal quarter commencing October 1, 2004 to December 31, 1991 so long as the end of the Company's Combined Tangible most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Worth Income for such period is greater than $31,051,000a deficit, less 100% of such deficit); plus
(iiB) 100% of the aggregate of the net cash proceeds Net Cash Proceeds received by the Company (including the fair market value of any Additional Assets to the extent acquired in consideration of Equity Interests of the Company (other than Disqualified Stock)) since October 7, 2009 as a contribution to its common equity capital or from any the issue or sale of Equity Interests of the Company (other than Disqualified Stock) (other than Net Cash Proceeds received from an issuance or sale of capital shares such Capital Stock to a Subsidiary of the Company subsequent or an employee stock ownership plan, option plan or similar trust to the Closing Dateextent such sale to an employee stock ownership plan, and (iii) the aggregate of the net cash proceeds received option plan or similar trust is financed by loans from or Guaranteed by the Company from or any issuance Restricted Subsidiary unless such loans have been repaid with cash on or prior to the date of determination); plus
(C) the amount by which Indebtedness of the Company is reduced on the Company's balance sheet upon the conversion or exchange (other than by a Subsidiary of the Company) subsequent to October 7, 2009 of any Indebtedness of the Company which has been converted into capital shares convertible or exchangeable for Capital Stock (other than Disqualified Stock) of the Company subsequent (less the amount of any cash, or other property, distributed by the Company upon such conversion or exchange); plus
(D) the amount equal to the Closing Datenet reduction in Restricted Investments made by the Company or any of its Restricted Subsidiaries in any Person resulting from:
(1) repurchases or redemptions of such Restricted Investments by such Person, proceeds realized upon the sale of such Restricted Investment to a purchaser other than the Company or a Subsidiary, repayments of loans or advances or other transfers of assets (including by way of dividend or distribution) by such Person to the Company or any Restricted Subsidiary of the Company; or
(2) the redesignation of Unrestricted Subsidiaries as Restricted Subsidiaries (valued in each case as provided in the definition of "Investment") not to exceed, in the case of any Unrestricted Subsidiary, the amount of Investments previously made by the Company or any Restricted Subsidiary in such Unrestricted Subsidiary, which amount shall in each case under this clause (D) was included in the calculation of the amount of Restricted Payments; provided, however, that no amount will be added included under this clause (D) to the Distribution Fund only extent it is already included in Consolidated Net Income.
(b) So long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the preceding provisions will not prohibit:
(i) the payment of any dividend within 60 days after the date of declaration of the dividend, or a redemption payment after the giving of an irrevocable notice of redemption, if at the date of declaration the dividend payment or redemption payment would have complied with the provisions of this Indenture;
(ii) the redemption, repurchase, retirement, defeasance or other acquisition of any Subordinate Obligations 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 (other than to a Subsidiary of the Company) of, Equity Interests of the Company (other than Disqualified Stock and other than Capital Stock issued or sold to a Subsidiary or an employee stock ownership plan or similar trust to the extent such conversion. Notwithstanding sale to an employee stock ownership plan or similar trust is financed by loans from or Guaranteed by the foregoingCompany or any Restricted Subsidiary unless such loans have been repaid with cash on or prior to the date of determination); provided, however, that (a) such purchase or redemption will be excluded in subsequent calculations of the amount of Restricted Payments and (b) the Net Cash Proceeds from such sale will be excluded from clause (iii)(B) of Section 3.4(a);
(iii) any defeasance, retirement, purchase, redemption or other acquisition of Subordinated Obligations of the Company or any Guarantor, as the case may be, made by exchange for, or out of the proceeds of the substantially concurrent sale (other than to a Restricted Subsidiary of the Company) of, Subordinated Obligations of the Company or any Subsidiary Guarantor, as the case may be, that qualify as Permitted Refinancing Indebtedness, provided that the obligors on such new Subordinated Obligations shall not include obligors that were not obligors on the Subordinated Obligations being defeased, retired, repurchased, redeemed or acquired; provided, however, that such defeasance, retirement, purchase, redemption or acquisition will be excluded in subsequent calculations of the amount of Restricted Payments;
(iv) in the event of a Change of Control, and if no Default shall have occurred and be continuing, the payment, purchase, redemption, defeasance or other acquisition or retirement of Subordinated Obligations of the Company or any Guarantor, in each case, at a purchase price not greater than 101% of the principal amount of such Subordinated Obligations, plus any accrued and unpaid interest therein; provided, however, that prior to such payment, purchase, redemption, defeasance or other acquisition or retirement, the Company (or a third party to the extent permitted by the Indenture) has made a Change of Control Offer with respect to the Notes as a result of such Change of Control and has repurchased all Notes validly tendered and not withdrawn in connection with such Change of Control Offer; provided further, however, that such repurchase and other acquisitions shall be included in the calculation of the amount of Restricted Payments;
(v) in the event of an Asset Sale that requires the Company to offer to repurchase Notes pursuant to the covenant described under Section 3.7 hereof, and if no Default shall have occurred and be continuing, the payment, purchase, redemption, defeasance or other acquisition or retirement of Subordinated Obligations of the Company or any Subsidiary Guarantor, in each case, at a purchase price not greater than 100% of the principal amount (or, if such Subordinated Obligations were issued with original issue discount, 100% of the accreted value) of such Subordinated Obligations, plus any accrued and unpaid interest thereon; provided, however, that prior to such payment, purchase, redemption, defeasance or other acquisition or retirement, the Company has made an Asset Sale Offer with respect to the Notes pursuant to the provisions of the covenant described under Section 3.7 hereof; provided further, however, that such repurchases and other acquisitions shall be included in the calculation of the amount of Restricted Payments);
(vi) the payment of any dividend by a Restricted Subsidiary of the Company to the holders of its Equity Interests on a pro rata basis;
(vii) the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company held by any current or former director or employee of the Company or any of its Restricted Subsidiaries pursuant to any director or employee equity subscription agreement or plan, stock option agreement or similar agreement or plan; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may acquire not exceed $1,000,000 in any twelve-month period; provided, that such payments will be excluded from any subsequent calculation of the amounts of Restricted Payments; provided further, that such amount in any twelve-month period may be increased in an amount not to exceed (a) the cash proceeds from the issue or sale of Equity Interests (other than Disqualified Stock) to any such officers, directors, employees or consultants that occurs after the Issue Date to the extent proceeds from the issue or sale of such Equity Interests have not otherwise been applied to make Restricted Payments plus (b) the cash proceeds of key man life insurance received by the Company or its own capital Restricted Subsidiaries after the Issue Date;
(viii) the acquisition of Equity Interests by the Company in connection with the exercise of stock options or stock appreciation rights by way of cashless exercise;
(ix) the payment of cash in lieu of fractional shares for of Capital Stock in connection with any transaction otherwise permitted under this covenant; and
(x) other Restricted Payments in an aggregate amount from and after since the Closing date equal of this Indenture not to exceed $25,000,000.
(c) The amount of all Restricted Payments (other than cash) will be the fair market value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to the greater Restricted Payment. The fair market value of (x) the sum of any assets or securities that are required to be valued by this covenant will be determined (i) 25% of the Cumulative Combined Net Income in good faith by senior management of the Company subsequent to December 31, 1991, plus and (ii) $500,000, or (y) if the amount then available under the Distribution Fund, which amount shall be charged to the Distribution Fund. No Restricted Payment may be made in other than cash or securities which are actively traded on a nationally recognized public market and have a readily ascertainable fair market value (which value shall be exceeds $10,000,000, by the amount Board of such Restricted Payment), unless the Company shall have received a report from an independent recognized appraiser as to the fair value of the property to be distributed or transferred, in which case the amount of such Restricted Payment shall be deemed to be the greater of its fair value (as determined by such appraiser) or its net book value on the books of the Company. Notwithstanding any of the foregoing provisions of this paragraph, neither the Company nor any Subsidiary or Affiliate shall make any Restricted Payment if at the time or after giving effect thereto, there shall exist any DefaultDirectors.
Appears in 1 contract
Sources: Indenture (TexCal Energy (LP) LLC)
Restricted Payments. Neither The Company shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, declare, order, pay, make or set apart any sum for any Restricted Payment except:
(a) Restricted Payments by any Subsidiary of a Borrower to such Borrower or a Wholly-Owned Subsidiary of a Borrower;
(b) cash dividends on the Stock of the Borrowers to the Company nor (if applicable) and on the Stock of the Company to Holdings paid and declared solely for the purpose of funding the following:
(i) ordinary operating expenses of Holdings not in excess of $2,000,000 in any Fiscal Year;
(ii) payments by Holdings in respect of foreign, federal, state or local taxes owing by Holdings in respect of the Company and its Subsidiaries, but not greater than the amount that would be payable by the Company, on a consolidated basis, if the Company were the taxpayer; and
(iii) payments of interest when due in cash on Indebtedness of Holdings permitted under subclause (i) of clause (d) of Section 16 of the Guaranty if (A) the proceeds of such Indebtedness were received by K*TEC (if such Indebtedness was assumed by Holdings from K*TEC) or, if incurred directly by Holdings, were invested as capital contribution in the Company and by the Company in a Borrower and (B) such interest is permitted to be paid under the terms of such Indebtedness;
(c) one or more Restricted Payments of the type described in clause (a) or (b) of the definition thereof on the Stock of the Borrowers to the Company (if applicable) and on the Stock of the Company to Holdings paid and declared (x) prior to the first anniversary of the Closing Date in an aggregate amount not to exceed $30,000,000 and (y) at least ten Business Days after the Borrowers deliver to the Administrative Agent a notice of their intent to make such Restricted Payments;
(d) Restricted Payments in respect of any adjustment to the exercise price of any warrants or options;
(e) Restricted Payments in respect of the repurchase of Stock or Stock Equivalents of Holdings from employees or directors pursuant to the terms of any operative shareholder agreement to which Holdings is a party; provided, however, that (i) the cash consideration payable in respect of all such repurchases shall not exceed $1,000,000 in any Fiscal Year (including amounts paid under the promissory notes referred to in clause (ii) below) and (ii) the balance of the consideration payable in respect of all such repurchases shall be in the form of promissory notes of Holdings subordinate and junior in right of payment to the Obligations and otherwise in form and substance satisfactory to the Administrative Agent;
(f) from and after the EFTC Joinder Date, payments of interest under the subordinated notes issued in an aggregate principal amount not to exceed $3,000,000 by EFTC for the benefit of the ▇▇▇▇▇▇▇ Family Limited Partnership I, but only to the extent such interest is permitted to be paid by the terms thereof; and
(g) cash dividends on the Stock of the Borrowers to the Company (if applicable) and on the Stock of the Company to Holdings paid and declared solely for the purpose of funding the repayment of Indebtedness owing under the Purchase Price Note (whether or not then due), if such repayment is permitted under the terms thereof; provided, however, that the Restricted Payments described in clauses (b), (c), (e) and (g) above shall not be permitted if (A) a Default (other than, in respect of clause (c) above, a Default under subclause (ii) of clause (d) of Section 9.1 (Events of Default) with respect to which the acknowledgement described in clause (A) thereof has not been made or the notice described in clause (B) thereof has not been delivered) or Event of Default shall have occurred and be continuing at the date of declaration or payment thereof or would result therefrom, (B) such Restricted Payment is prohibited under the terms of any Indebtedness (other than the Obligations) of the Company or any of its Subsidiaries or Affiliates shall make (C) in respect of subclause (iii) of clause (b) above, clauses (c) and, in case only of any Restricted Payment or set aside any funds therefor unlessvoluntary prepayment, clause (g) above, the Available Credit, after giving effect thereto, the aggregate of such Restricted Payments for all such purposes subsequent to the Closing Date would not exceed the sum (as in effect from time to time, hereinafter referred to as the "Distribution Fund") of (i) 50% of the Company's Cumulative Combined Net Income subsequent to December 31, 1991 so long as the Company's Combined Tangible Net Worth is greater than $31,051,000, (ii) the aggregate of the net cash proceeds received by the Company from any issuance or sale of capital shares of the Company subsequent to the Closing Date, and (iii) the aggregate of the net cash proceeds received by the Company from any issuance of any Indebtedness of the Company which has been converted into capital shares of the Company subsequent to the Closing Date, which amount shall be added to the Distribution Fund only after such conversion. Notwithstanding the foregoing, the Company may acquire its own capital shares for an aggregate amount from and after the Closing date equal to the greater of (x) the sum of (i) 25% of the Cumulative Combined Net Income of the Company subsequent to December 31, 1991, plus (ii) $500,000, or (y) the amount then available under the Distribution Fund, which amount shall be charged to the Distribution Fund. No Restricted Payment may be made in other than cash or securities which are actively traded on a nationally recognized public market and have a readily ascertainable market value (which value shall be the amount of such Restricted Payment), unless the Company shall have received a report from an independent recognized appraiser as to the fair value of the property to be distributed or transferred, in which case the amount of such Restricted Payment shall be deemed to be the greater of its fair value (as determined by such appraiser) or its net book value on the books of the Company. Notwithstanding any of the foregoing provisions of this paragraph, neither the Company nor any Subsidiary or Affiliate shall make any Restricted Payment if is at the time or after giving effect thereto, there shall exist any Defaultleast $25,000,000.
Appears in 1 contract
Sources: Credit Agreement (Suntek Corp)
Restricted Payments. Neither Declare or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, or issue or sell any Equity Interests, except that:
(a) so long as no Default shall have occurred and be continuing at the Company nor time of any action described below or would result therefrom, CSI may declare and make any cash dividends or make any other payment or distribution of cash to its shareholders on account of its Subsidiaries or Affiliates shall make capital stock during any Restricted Payment or set aside any funds therefor unless, after giving effect thereto, the aggregate period of such Restricted Payments for all such purposes subsequent four consecutive fiscal quarters of CSI in an amount not to the Closing Date would not exceed the sum (as in effect from time to time, hereinafter referred to as the "Distribution Fund") greater of (i) 50% of the Company's Cumulative Combined Net Income subsequent to December 31, 1991 so long as the Company's Combined Tangible Net Worth is greater than $31,051,000, Permitted Distribution Amount and (ii) the aggregate minimum amount required during such period for CSI to qualify as and maintain its qualification as a REIT;
(b) so long as no Default shall have occurred and be continuing at the time of any action described below or would result therefrom, each Subsidiary may make Restricted Payments to Borrower, Guarantors and any other Person that owns an Equity Interest in such Subsidiary, ratably according to their respective holdings of the net cash type of Equity Interest in respect of which such Restricted Payment is being made;
(c) so long as no Default shall have occurred and be continuing at the time of any action described below or would result therefrom, Borrower and each Subsidiary may purchase, redeem or otherwise acquire Equity Interests issued by it with the proceeds received by from the Company from any issuance or sale substantially concurrent issue of capital new shares of the Company subsequent to the Closing Date, its common stock or other common Equity Interests; and
(d) notwithstanding clauses (a) and (iiib) above, CSI may, during any relevant period, make cash distributions to its shareholders in the aggregate of the net cash proceeds received by the Company from any issuance of any Indebtedness of the Company which has been converted into capital shares of the Company subsequent minimum amount required during such period for CSI to the Closing Datequalify as and maintain its qualification as a REIT; provided, which amount shall be added to the Distribution Fund only after such conversion. Notwithstanding however, that notwithstanding the foregoing, the Company may acquire its own capital shares for an aggregate amount from and after the Closing date equal to the greater of (x) the sum of if (i) 25% a Default under Section 9.01(f) or (g) (without giving effect to any grace or lapse of the Cumulative Combined Net Income of the Company subsequent time referred to December 31therein) shall have occurred and be continuing, 1991, plus or (ii) $500,000, or (y) the amount then available under the Distribution Fund, which amount shall be charged to the Distribution Fund. No Restricted Payment may be made in any other than cash or securities which are actively traded on a nationally recognized public market and have a readily ascertainable market value (which value shall be the amount Event of such Restricted Payment), unless the Company Default shall have received occurred and as a report from an independent recognized appraiser as to result thereof the fair value of the property to be distributed or transferred, in which case the amount of such Restricted Payment shall be deemed to be the greater of its fair value (as determined by such appraiser) or its net book value on the books of the Company. Notwithstanding any of the foregoing provisions of this paragraphObligations have been acelerated, neither the Company Borrower nor any Subsidiary or Affiliate CSI shall make or declare any Restricted Payment if at dividends or other cash distributions; and
(e) CSI may issue shares of its common stock upon the time or after giving effect thereto, there shall exist any Defaultexercise of conversion rights by holders of Partnership Units.
Appears in 1 contract
Restricted Payments. Neither Declare or pay any dividend (other than dividends payable solely in common stock of the Company nor any of its Subsidiaries Person making such dividend) on, or Affiliates shall make any payment on account of, or set apart assets for a sinking or other analogous fund for, the purchase, redemption, defeasance, retirement or other acquisition of, any common stock of any Group Member, whether now or hereafter outstanding, or make any other distribution (other than distributions made solely in common stock of the Person making such distribution) in respect thereof, either directly or indirectly, whether in cash or property or in obligations of the Borrower or any Subsidiary (collectively, “Restricted Payments”), except:
(a) Restricted Payments by any Subsidiary to the Borrower or any Subsidiary Guarantor;
(b) other Restricted Payments by the Borrower in an aggregate amount not to exceed the Restricted Payment or set aside any funds therefor unlessAmount, after giving effect thereto, the aggregate of such Restricted Payments for all such purposes subsequent to the Closing Date would not exceed the sum (as in effect from time to time, hereinafter referred to as the "Distribution Fund") of provided that (i) 50% no Default or Event of Default shall have occurred and be continuing at the Company's Cumulative Combined Net Income subsequent to December 31, 1991 so long as the Company's Combined Tangible Net Worth is greater than $31,051,000, time of such payment or shall be caused thereby and (ii) after giving pro forma effect to such payment, (x) the aggregate of Borrower is in compliance with the net cash proceeds received by the Company from any issuance or sale of capital shares of the Company subsequent to the Closing Date, financial covenants in Section 8.1 and (iiiy) the aggregate of the net cash proceeds received by the Company from any issuance of any Indebtedness of the Company which has been converted into capital shares of the Company subsequent Consolidated Leverage Ratio is equal to the Closing Dateor less than 2.75 to 1.00, which amount shall be added to the Distribution Fund only after such conversion. Notwithstanding provided, further, that, notwithstanding the foregoing, the Company may acquire its own capital shares for an aggregate amount from of Restricted Payments made pursuant to this clause (b) shall in no event exceed $7,500,000 for any fiscal year of the Borrower; and
(c) other Restricted Payments by the Borrower, provided that (i) no Default or Event of Default shall have occurred and be continuing at the time of such payment or shall be caused thereby and (ii) after the Closing date equal giving pro forma effect to the greater of such payment, (x) the sum of (i) 25% of Borrower is in compliance with the Cumulative Combined Net Income of the Company subsequent to December 31, 1991, plus (ii) $500,000, or financial covenants in Section 8.1 and (y) the amount then available under the Distribution Fund, which amount shall be charged Consolidated Leverage Ratio is equal to the Distribution Fund. No Restricted Payment may be made in other or less than cash or securities which are actively traded on a nationally recognized public market and have a readily ascertainable market value (which value shall be the amount of such Restricted Payment), unless the Company shall have received a report from an independent recognized appraiser as 2.00 to the fair value of the property to be distributed or transferred, in which case the amount of such Restricted Payment shall be deemed to be the greater of its fair value (as determined by such appraiser) or its net book value on the books of the Company. Notwithstanding any of the foregoing provisions of this paragraph, neither the Company nor any Subsidiary or Affiliate shall make any Restricted Payment if at the time or after giving effect thereto, there shall exist any Default1.00.
Appears in 1 contract
Restricted Payments. Neither the The Company will not, nor will it permit any of its Subsidiaries Subsidiary to, declare or Affiliates shall make any Restricted Payment or set aside any funds therefor unlessPayment; provided, after giving effect thereto, the aggregate of such Restricted Payments for all such purposes subsequent to the Closing Date would not exceed the sum (as in effect from time to time, hereinafter referred to as the "Distribution Fund") of that:
(i) 50% so long as no Default or Unmatured Default shall have occurred and be continuing at the date of declaration or payment thereof (in the case of any dividend) or the date of such repurchase (in the case of any share repurchase) or would result therefrom, the Company may declare and pay cash dividends with respect to its Capital Stock and repurchase shares of Capital Stock of the Company in accordance with its future share repurchase program to the extent the sum of the aggregate amount of such dividends and the aggregate purchase price of such repurchases shall not exceed $40,000,000 in any fiscal year of the Company's Cumulative Combined Net Income subsequent ;
(ii) in addition to December 31the foregoing, 1991 so long as the Company's Combined Tangible Net Worth is greater than $31,051,000, (ii) the aggregate no Default or Unmatured Default shall have occurred and be continuing as of the net cash proceeds received by date of such repurchase or would result therefrom, the Company from any issuance or sale may repurchase shares of capital shares Capital Stock of the Company subsequent in accordance with the Company’s future share repurchase program in order to limit dilution thereof to the Closing Date, and extent the aggregate purchase price with respect to such repurchases shall not exceed $25,000,000 during the term of this Agreement;
(iii) the aggregate of the net cash proceeds received by the Company from any issuance of shall be permitted to repurchase, retire, redeem or defease any Indebtedness of the Company which has been converted into permitted under the Credit Agreement other than subordinated Indebtedness with proceeds of any permitted capital shares markets debt, convertible debt, equity or preferred equity issuances (but, for the avoidance of doubt, not with proceeds of any Loans under the Company subsequent to the Closing Date, which amount shall be added to the Distribution Fund only after such conversion. Notwithstanding the foregoing, the Company may acquire its own capital shares for an aggregate amount from and Credit Agreement) within one hundred twenty (120) days after the Closing date equal to the greater of (x) the sum of (i) 25% of the Cumulative Combined Net Income of the Company subsequent to December 31, 1991, plus (ii) $500,000, or (y) the amount then available under the Distribution Fund, which amount shall be charged to the Distribution Fund. No Restricted Payment may be made in other than cash or securities which are actively traded on a nationally recognized public market and have a readily ascertainable market value (which value shall be the amount Company’s receipt of such Restricted Payment), unless the Company shall have received a report from an independent recognized appraiser as to the fair value of the property to be distributed or transferred, in which case the amount of such Restricted Payment shall be deemed to be the greater of its fair value (as determined by such appraiser) or its net book value on the books of the Company. Notwithstanding any of the foregoing provisions of this paragraph, neither the Company nor any Subsidiary or Affiliate shall make any Restricted Payment if at the time or after giving effect thereto, there shall exist any Default.proceeds;
Appears in 1 contract
Sources: Credit Agreement (Meritor Inc)
Restricted Payments. Neither the The Company nor shall not, and shall not permit any of its Restricted Subsidiaries or Affiliates shall to, make any Restricted Payment if (a) at the time of such proposed Restricted Payment, a Default or set aside any funds therefor unless, Event of Default shall have occurred and be continuing or shall occur as a consequence of such Restricted Payment or (b) immediately after giving effect theretoto such Restricted Payment, the aggregate of such all Restricted Payments for all such purposes subsequent to that shall have been made on or after the Closing Issue Date would not exceed the sum of (as in effect from time to time, hereinafter referred to as the "Distribution Fund") of without duplication):
(i) 50$25.0 million, plus
(ii) an amount equal to the difference between (A) the Cumulative Cash Flow Credit and (B) 1.2 multiplied by Cumulative Interest Expense, plus
(iii) 100% of the Company's Cumulative Combined Net Income subsequent to December 31, 1991 so long as aggregate net cash proceeds and 70% of the Company's Combined Tangible Net Worth is greater than $31,051,000, (ii) Fair Market Value of the aggregate of the non-cash net cash proceeds received by the Company either (x) as capital contributions to the Company after the Issue Date or (y) from the issue and sale (other than to a Restricted Subsidiary) of, or from the exercise of any issuance options, warrants or other rights to acquire its, Capital Stock (other than Redeemable Capital Stock and other than net proceeds from the issue and sale of capital shares Capital Stock with respect to which Indebtedness is incurred pursuant to clause (viii) of Section 4.07 hereof after the Issue Date), plus
(iv) 100% of the Company subsequent to aggregate net cash proceeds and 70% of the Closing Date, and (iii) Fair Market Value of the aggregate of the non-cash net cash proceeds received by the Company or any Restricted Subsidiary after the Issue Date from any issuance the Incurrence of any Indebtedness of the Company which that has been converted into capital shares or exchanged for Capital Stock of the Company subsequent to the Closing Date, which amount shall be added to the Distribution Fund only after such conversion(other than Redeemable Capital Stock). Notwithstanding the foregoing, If the Company may acquire its own capital shares for an aggregate amount from and after or any Restricted Subsidiary makes a Restricted Payment which, at the Closing date equal to the greater of (x) the sum of (i) 25% time of the Cumulative Combined Net Income of the Company subsequent to December 31, 1991, plus (ii) $500,000, or (y) the amount then available under the Distribution Fund, which amount shall be charged to the Distribution Fund. No Restricted Payment may be made in other than cash or securities which are actively traded on a nationally recognized public market and have a readily ascertainable market value (which value shall be the amount making of such Restricted Payment), unless would in the good faith determination of the Company shall have received a report from an independent recognized appraiser as to be permitted under the fair value requirements of the property to be distributed or transferredthis Section 4.08, in which case the amount of such Restricted Payment shall be deemed to be have been made in compliance with this Section 4.08 notwithstanding any subsequent adjustments made in good faith to the greater Company's financial statements affecting Cumulative Cash Flow Credit or Cumulative Interest Expense for any period. The foregoing provisions shall not prohibit:
(i) the repurchase, redemption or other acquisition of its fair value (as determined by such appraiser) or its net book value on the books Capital Stock of the Company. Notwithstanding , or the acquisition of Indebtedness of the Company that is subordinated in right of payment to the Debentures, in each case, in exchange for, or out of the net cash proceeds of a substantially concurrent offering (other than to a Restricted Subsidiary) of, Capital Stock of the Company (other than Redeemable Capital Stock); PROVIDED that the amount of any such net cash proceeds that are utilized for any such repurchase, redemption or other acquisition shall be excluded from clause (iii) of the first paragraph of this Section 4.08;
(ii) the payment of any dividend or distribution on, or redemption of, Capital Stock within 60 days after the date of declaration of such dividend or distribution or the giving of formal notice of such redemption if, at the date of such declaration or giving of such formal notice, such payment or redemption would comply with the foregoing provisions;
(iii) the redemption, repurchase, defeasance or other acquisition or retirement for value of the Notes with the proceeds of Indebtedness Incurred in compliance with Section 4.07 hereof;
(iv) for so long as the Company or any Restricted Subsidiary is treated as a pass-through entity for United States federal income tax purposes, distributions to equity holders of the Company or any Restricted Subsidiary in an amount not to exceed the Tax Amount for such period;
(v) the redemption, repurchase, defeasance or other acquisition or retirement for value of Indebtedness that is subordinated in right of payment to the Debentures, including premium, if any, and accrued and unpaid interest, with the proceeds of Indebtedness Incurred under clause (vi) of the second paragraph of Section 4.07(a) hereof;
(vi) any payment or distribution made by the Company or any Restricted Subsidiary in order to purchase, or fund the purchase by the Falcon Investors Partnership, if any, of the interests in the Capital Stock of the Company or the Falcon Investors Partnership, if any, held by any of the foregoing Group I Partners, the Group II Partners, the Group III Partners or the Group IV Partner (as such terms are defined in the Partnership Agreement as in effect on the Issue Date) pursuant to the provisions of this paragraphArticle 15 of the Partnership Agreement (or pursuant to such modifications to such provisions as may be agreed to by the Company, neither the Falcon Investors Partnership, the Group I Partners, the Group II Partners, the Group III Partners or the Group IV Partner; PROVIDED no such modification shall result in such payment or distribution being made in either a larger amount or at an earlier date than as provided for in Article 15 of the Partnership Agreement as in effect on the Issue Date);
(vii) any purchase, redemption, acquisition, cancellation or other retirement for value of Capital Stock of the Company nor or any Restricted Subsidiary or Affiliate shall make any other transaction that is undertaken in connection with the consummation of the TCI Transaction and the other transactions contemplated under the Contribution Agreement;
(viii) the purchase, redemption, acquisition, cancellation or other retirement for value of Capital Stock of the Company, options on any such Capital Stock or related equity appreciation rights or similar securities held by officers or employees or former officers or employees of the Company, any Restricted Subsidiary (or their estates or beneficiaries under their estates), upon death, disability, retirement or termination of employment; PROVIDED that the aggregate consideration paid for such purchase, redemption, acquisition, cancellation or other retirement after the Issue Date does not in any one fiscal year of the Company exceed an aggregate amount of $7.5 million;
(ix) the payment of any dividend or distribution on Capital Stock of a Restricted Subsidiary out of such Restricted Subsidiary's net income from the Issue Date to Persons other than the Company or a Restricted Subsidiary; PROVIDED that such dividend or distribution is paid pro rata to all holders of such Capital Stock;
(x) any payment or distribution made by the Company or any Restricted Subsidiary in order to purchase or fund the purchase by the Company of the interests in the Capital Stock of FHGLP held by the non-management partners in FHGLP (including the partnership interest held by Belo Ventures, Inc.) pursuant to the provisions of Article 9 of the New FHGLP Partnership Agreement (or pursuant to such modifications to such provisions as may be agreed to by the Company, New Falcon or such non-management partners; PROVIDED no such modification shall result in such payment or distribution being made in either a larger amount or at an earlier date than as provided in Article 9 of the New FHGLP Partnership Agreement as in effect on the Issue Date); and
(xi) the distribution under the FHGLP 1993 Incentive Performance Plan, as amended, of amounts in connection with the TCI Transaction. PROVIDED, that in the case of each of clauses (i) through (xi) of this Section 4.08, no Default or Event of Default shall have occurred and be continuing or shall occur as a consequence thereof. In determining the amount of Restricted Payments permissible under this covenant, the amounts expended pursuant to clauses (ii), (v), (viii) and (ix) of the immediately preceding paragraph shall be included as Restricted Payments. The amount of any non-cash Restricted Payment if shall be deemed to be equal to the Fair Market Value thereof at the time or after giving effect theretodate of the making of such Restricted Payment. Not later than the date of making any Restricted Payment, there the Company shall exist any Defaultdeliver 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 4.08 were permitted.
Appears in 1 contract
Sources: Indenture (Falcon Funding Corp)
Restricted Payments. Neither the (a) The Company nor shall not, and ------------------- will not permit any of its Restricted Subsidiaries to, directly or Affiliates shall indirectly:
(i) declare or pay any dividend or make any other distribution (including any payment in connection with any merger or consolidation) on account of the Company's or any of its Restricted Subsidiaries' Equity Interests (other than dividends or distributions payable in Equity Interests (other than Disqualified Stock) and dividends payable to the Company or any Restricted Subsidiary);
(ii) purchase, redeem or otherwise acquire or retire for value (including in connection with any merger or consolidation) any Equity Interests of the Company (or any Restricted Subsidiary held by Persons other than the Company or any Restricted Subsidiary);
(iii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value, any Subordinated Debt of the Company, except (A) a payment of interest, principal or other related Obligations at Stated Maturity and (B) the purchase, repurchase or other acquisition or retirement of Subordinated Debt of the Company in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case due within one year of the date of purchase, repurchase or other acquisition or retirement; or
(iv) make any Restricted Payment or Investment (all such payments and other actions set aside any funds therefor forth in clauses (i) through (iv) above being collectively referred to as "Restricted Payments"), unless, at the time of, and after giving effect theretoto, such Restricted Payment:
(1) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof,
(2) the aggregate Company would, at the time of such Restricted Payments for all Payment and after giving pro forma effect thereto as if such purposes subsequent Restricted Payment had --------- been made at the beginning of the applicable four-quarter period, have been permitted to Incur at least $1.00 of additional Debt pursuant to the Closing Consolidated Coverage Ratio test set forth in Section 4.03(a), and
(3) such Restricted Payment, together with (without duplication) the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after the first Issue Date would not exceed (excluding Restricted Payments permitted by Section 4.04(b)(ii), Section 4.04(b)(iii)(A), Section 4.04(b)(iv), Section 4.04(b)(v), Section 4.04(b)(vi)(A) and Section 4.04(b)(vii), but including all other Restricted Payments permitted by Section 4.04(b)), is less than the sum (as in effect from time to time, hereinafter referred to as the "Distribution Fund"without duplication) of of
(i) 50% of the Company's Cumulative Combined Consolidated Net Income subsequent of the Company for the period (taken as one accounting period) from the beginning of the fiscal quarter during which the first Issue Date occurs to December 31, 1991 so long as the end of the Company's Combined Tangible most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Worth Income for such period is greater than $31,051,000a deficit, less 100% of such deficit), plus
(ii) 100% of the aggregate of the net cash proceeds received by the Company from any issuance the issue or sale of (other than to a Subsidiary) of, or from capital shares contributions with respect to, Equity Interests of the Company subsequent to (other than Disqualified Stock), in either case after the Closing first Issue Date, and plus
(iii) the aggregate principal amount (or accreted value, if less) of Debt or Disqualified Stock of the Company or any Restricted Subsidiary issued since the first Issue Date (other than to a Restricted Subsidiary) that has been converted into Equity Interests (other than Disqualified Stock) of the Company, plus
(iv) 100% of the aggregate net cash received by the Company or a Restricted Subsidiary of the Company since the first Issue Date from (A) Restricted Investments, whether through interest payments, principal payments, dividends or other distributions or payments, or the sale or other disposition (other than to the Company or a Restricted Subsidiary) thereof made by the Company and its Restricted Subsidiaries and (B) a cash dividend from, or the sale (other than to the Company or a Restricted Subsidiary) of the stock of, an Unrestricted Subsidiary, plus (v) upon the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary, the fair market value of the Investments of the Company and its Restricted Subsidiaries (other than such Subsidiary) in such Subsidiary.
(b) The provisions of Section 4.04(a) shall not prohibit:
(i) the payment of any dividend within 60 days after the date of declaration thereof, if at such date of declaration such payment would have complied with the provisions of this Section 4.04;
(ii) the redemption, repurchase, retirement, defeasance or other acquisition of any Equity Interests or Subordinated Debt in exchange for, or out of the net cash proceeds received of the substantially concurrent sale (other than to a Restricted Subsidiary of the Company) of, other Equity Interests (other than any Disqualified Stock) of, or a capital contribution to, the Company; provided that the amount of any such net cash proceeds that are -------- utilized for any such redemption, repurchase, retirement, defeasance or other acquisition shall be excluded from Section 4.04(a)(iv)(3)(ii);
(iii) the redemption, repurchase, retirement, defeasance or other acquisition of (A) Subordinated Debt made by an exchange for, or with the net cash proceeds from an Incurrence of, Permitted Refinancing Debt or (B) Subordinated Debt (including Exchange Debentures) or Preferred Equity Interests (other than Subordinated Debt or Preferred Equity Interests held by Affiliates of the Company) upon a Change of Control or Asset Sale to the extent required by the agreement governing such Subordinated Debt or the certificate of designation governing such Preferred Equity Interests, as the case may be, but only (x) if the Company shall have complied with Section 4.06 or 4.08, as the case may be, and repurchased all Securities tendered pursuant to the offer required by such covenants prior to purchasing or repaying such Subordinated Debt or Preferred Equity Interests, as the case may be, (y) in the case of an Asset Sale, to the extent of the remaining Excess Proceeds offered to Holders pursuant to the Asset Sale Offer and (z) within six months after the date such offer is consummated;
(iv) the payment of any dividend by a Restricted Subsidiary of the Company to the holders of its common Equity Interests on a pro rata basis;
(v) to the extent constituting Restricted Payments, the Specified Affiliate Payments;
(A) the payment of any regular quarterly dividends in respect of the Exchangeable Preferred Stock in the form of additional shares of Exchangeable Preferred Stock having the terms and conditions set forth in the Certificate of Designation for the Exchangeable Preferred Stock as in effect on the first Issue Date; and (B) commencing November 1, 2003, the payment of regular quarterly cash dividends (in the amount no greater than that provided for in the Certificate of Designation for the Exchangeable Preferred Stock as in effect on the first Issue Date), out of funds legally available therefor, on any of the shares of Exchangeable Preferred Stock issued on the first Issue Date or subsequently issued in payment of dividends in respect of such shares of Exchangeable Preferred Stock issued on the first Issue Date, provided that, at the time of and immediately -------- after giving effect to the payment of such cash dividend, no Default or Event of Default shall have occurred and be continuing;
(vii) the exchange of Exchangeable Preferred Stock for Exchange Debentures in accordance with the terms of the Certificate of Designation for such Exchangeable Preferred Stock as in effect on the Issue Date, provided that such exchange is permitted by Article 4; and --------
(viii) Restricted Payments in an aggregate amount not to exceed $10.0 million. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default or an Event of Default. For purposes of making such determination, all outstanding Investments by the Company from any issuance and its Restricted Subsidiaries (except to the extent repaid in cash) in the Subsidiary so designated, to the extent they do not constitute Permitted Investments at the time such Subsidiary became an Unrestricted Subsidiary, will be deemed to be Restricted Payments made at the time of such designation. The amount of such outstanding Investments will be equal to the portion of the fair market value of the net assets of any Indebtedness Subsidiary of the Company which has been converted into capital shares at the time that such Subsidiary is designated an Unrestricted Subsidiary that is represented by the interest of the Company subsequent and its Restricted Subsidiaries in such Subsidiary, in each case as determined in good faith by the Board of Directors of the Company. Such designation will only be permitted if such Restricted Payment would be permitted at such time and if such Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. 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 Closing Date, which amount Restricted Payment. The fair market value of any noncash Restricted Payment shall be added to determined in good faith by the Distribution Fund only after such conversionBoard of Directors of the Company. Notwithstanding In making the foregoingcomputations required by this covenant, the Company may acquire its own capital shares for an aggregate amount from and after the Closing date equal to the greater of (x) the sum of (i) 25% the Company or the relevant Restricted Subsidiary may use audited financial statements for the portions of the Cumulative Combined relevant period for which audited financial statements are available on the date of determination and unaudited financial statements and other current financial data based on the books and records of the Company for the remaining portion of such period and (ii) the Company or the relevant Restricted Subsidiary will be permitted to rely in good faith on the financial statements and other financial data derived from the books and records of the Company and the Restricted Subsidiary that are available on the date of determination. If the Company makes a Restricted Payment that, at the time of the making of such Restricted Payment, would, in the good faith determination of the Company or any Restricted Subsidiary, be permitted under the requirements of this Indenture, such Restricted Payment will be deemed to have been made in compliance with this Indenture notwithstanding any subsequent adjustments made in good faith to the Company's or any Restricted Subsidiary's financial statements affecting Consolidated Net Income of the Company subsequent to December 31for any period. For the avoidance of doubt, 1991it is expressly agreed that no payment or other transaction permitted by Sections 4.07(b)(3), plus (ii4.07(b)(4) $500,000and 4.07(b)(5) shall be considered a Restricted Payment for purposes of, or (y) the amount then available under the Distribution Fundotherwise restricted by, which amount shall be charged to the Distribution Fund. No Restricted Payment may be made in other than cash or securities which are actively traded on a nationally recognized public market and have a readily ascertainable market value (which value shall be the amount of such Restricted Payment), unless the Company shall have received a report from an independent recognized appraiser as to the fair value of the property to be distributed or transferred, in which case the amount of such Restricted Payment shall be deemed to be the greater of its fair value (as determined by such appraiser) or its net book value on the books of the Company. Notwithstanding any of the foregoing provisions of this paragraph, neither the Company nor any Subsidiary or Affiliate shall make any Restricted Payment if at the time or after giving effect thereto, there shall exist any DefaultIndenture.
Appears in 1 contract
Restricted Payments. Neither the The Company nor shall not, and shall not permit any of its Subsidiaries to, directly or Affiliates shall indirectly: (i) declare or pay any dividend or make any other payment or distribution on account of the Company's Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company) or to the direct or indirect holders of the Company's Equity Interests in their capacity as such (other than dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company); (ii) purchase, redeem or otherwise acquire or retire for value any Equity Interests of the Company or any direct or indirect parent of the Company; (iii) make any principal payment on, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness that is subordinated to the Notes, except at final maturity; or (iv) make any Restricted Payment or Investment (all such payments and other actions set aside any funds therefor forth in clauses (i) through (iv) above being collectively referred to as "Restricted Payments"), unless, at the time of and after giving effect theretoto such Restricted Payment:
(a) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof; and
(b) the Company would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the first paragraph of the Section 4.09 hereof; and
(c) such Restricted Payment, together with the aggregate of such all other Restricted Payments for all such purposes subsequent to made by the Closing Date would not exceed Company and its Subsidiaries after the date of this Indenture (excluding Restricted Payments permitted by clauses (x) and (y) of the next succeeding paragraph), is less than the sum (as in effect from time to time, hereinafter referred to as the "Distribution Fund") of (i) 50% of the Company's Cumulative Combined Consolidated Net Income subsequent of the Company 38 42 for the period (taken as one accounting period) from the beginning of the first fiscal quarter commencing after the Issue Date to December 31, 1991 so long as the end of the Company's Combined Tangible most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Worth Income for such period is greater than $31,051,000a deficit, less 100% of such deficit), plus (ii) 100% of the aggregate of the net cash proceeds received by the Company from any issuance the issue or sale since the Issue Date of capital shares Equity Interests of the Company subsequent or of debt securities of the Company that have been converted into such Equity Interests (other than Equity Interests (or convertible debt securities) sold to a Subsidiary of the Closing DateCompany and other than Disqualified Stock or debt securities that have been converted into Disqualified Stock), and plus (iii) the aggregate of the net cash proceeds received by the Company from any issuance of any Indebtedness of the Company which has been converted into capital shares of the Company subsequent to the Closing Date, which amount shall be added to extent that any Restricted Investment that was made after the Distribution Fund only after such conversion. Notwithstanding the foregoingIssue Date is sold for cash or otherwise liquidated or repaid for cash, the Company may acquire its own capital shares for an aggregate amount from and after the Closing date equal to the greater lesser of (xA) the sum cash return of capital with respect to such Restricted Investment (iless the cost of disposition, if any) 25% of the Cumulative Combined Net Income of the Company subsequent to December 31, 1991, plus and (ii) $500,000, or (yB) the amount then available under the Distribution Fund, which amount shall be charged to the Distribution Fund. No Restricted Payment may be made in other than cash or securities which are actively traded on a nationally recognized public market and have a readily ascertainable market value (which value shall be the initial amount of such Restricted Payment)Investment, unless the Company shall have received a report from an independent recognized appraiser as to the fair value of the property to be distributed or transferred, in which case the amount of such Restricted Payment shall be deemed to be the greater of its fair value plus (as determined by such appraiseriv) or its net book value on the books of the Company$10.0 million. Notwithstanding any of the The foregoing provisions of this paragraph, neither the Company nor any Subsidiary or Affiliate shall make any Restricted Payment if at the time or after giving effect thereto, there shall exist any Default.not prohibit:
Appears in 1 contract
Sources: Indenture (Printpack Inc)
Restricted Payments. Neither the The Company nor shall not, and shall not permit any of its Restricted Subsidiaries to, directly or Affiliates shall indirectly, (i) declare or pay any dividend or make any other payment or distribution on account of the Company's or any of its Restricted Subsidiaries' Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company) or to the direct or indirect holders of the Company's Equity Interests in their capacity as such (other than dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company); (ii) purchase, redeem or otherwise acquire or retire for value (including without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company (other than any such Equity Interests owned by the Company or any Wholly Owned Restricted Subsidiary of the Company); (iii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value, any Indebtedness that is subordinated to the Notes, except a payment of interest or principal at Stated Maturity; or (iv) make any Restricted Payment or Investment (all such payments and other actions set aside any funds therefor forth in clauses (i) through (iv) above being collectively referred to as "Restricted Payments"), unless, at the time of and after giving effect theretoto such Restricted Payment:
(a) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof;
(b) the Company would, at the aggregate time of such Restricted Payments for all Payment and after giving pro forma effect thereto as if such purposes subsequent Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Closing Date would not exceed Consolidated Interest Coverage Ratio test set forth in Section 4.09 hereof; and
(c) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after the date of this Indenture (excluding Restricted Payments permitted by clauses (b), (c), (d) and (f), but including, without duplication, Restricted Payments permitted by clauses (a) and (e), of the next succeeding paragraph), is less than the sum (as in effect from time to time, hereinafter referred to as the "Distribution Fund") of (iA) 50% of the Company's Cumulative Combined Consolidated Net Income subsequent of the Company for the period (taken as one accounting period) from July 1, 1997 to December 31, 1991 so long as the end of the Company's Combined Tangible most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Worth Income for such period is greater than $31,051,000a deficit, less 100% of such deficit), plus (iiB) 100% of the aggregate of the net cash proceeds received by the Company from any issuance the issue or sale since the date of capital shares this Indenture of Equity Interests of the Company subsequent to the Closing Date, and (iiiother than Disqualified Stock) the aggregate or of the net cash proceeds received by the Company from any issuance of any Indebtedness Disqualified Stock or debt securities of the Company which has that have been converted into capital shares such Equity Interests (other than any such Equity Interests, Disqualified Stock or convertible debt securities sold to a Restricted Subsidiary of the Company subsequent to the Closing Date, which amount shall be added to the Distribution Fund only after such conversion. Notwithstanding the foregoing, the Company may acquire its own capital shares for an aggregate amount from and after the Closing date equal to the greater of (x) the sum of (i) 25% of the Cumulative Combined Net Income of the Company subsequent to December 31, 1991other than Disqualified Stock or convertible debt securities that have been converted into Disqualified Stock), plus (iiC) $500,000to the extent that any Restricted Investment that was made after the date of this Indenture is sold for cash or otherwise liquidated or repaid for cash, or the lesser of (y1) the amount then available under cash return of capital with respect to such Restricted Investment (less the Distribution Fundcost of disposition, which amount shall be charged to if any) and (2) the Distribution Fund. No Restricted Payment may be made in other than cash or securities which are actively traded on a nationally recognized public market and have a readily ascertainable market value (which value shall be the initial amount of such Restricted Payment)Investment, unless plus (D) in the Company shall have received event that any Unrestricted Subsidiary is redesignated as a report from Restricted Subsidiary, the lesser of (1) an independent recognized appraiser as amount equal to the fair value of the property to be distributed or transferred, Company's Investments in which case such Restricted Subsidiary and (2) the amount of such Restricted Payment shall be deemed to be the greater of its fair value (as determined Investments previously made by such appraiser) or its net book value on the books of the Company. Notwithstanding any of the foregoing provisions of this paragraph, neither the Company nor any Subsidiary or Affiliate shall make any and its Restricted Payment if at the time or after giving effect theretoSubsidiaries in such Unrestricted Subsidiary, there shall exist any Default.plus (E) $5.0
Appears in 1 contract
Restricted Payments. Neither the The Company nor shall not, and shall not permit any of its Restricted Subsidiaries to, directly or Affiliates shall indirectly: (i) declare or pay any dividend or make any other payment or distribution on account of the Company's or any of its Restricted Subsidiaries' Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company) or to the direct or indirect holders of the Company's or any of its Restricted Subsidiaries' Equity Interests in their capacity as such (other than dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company); (ii) purchase, redeem or otherwise acquire or retire for value (including without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or any direct or indirect parent of the Company; (iii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness that is subordinated in right of payment to the Notes, except a payment of interest or principal at Stated Maturity; or (iv) make any Restricted Payment or Investment (all such payments and other actions set aside any funds therefor forth in clauses (i) through (iv) above being collectively referred to as "RESTRICTED PAYMENTS"), unless, at the time of and after giving effect theretoto such Restricted Payment:
(a) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof;
(b) the Company would, at the aggregate time of such Restricted Payments for all Payment and after giving pro forma effect thereto as if such purposes subsequent Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Closing Date would not exceed Fixed Charge Coverage Ratio test set forth in the first paragraph under Section 4.09(a) hereof; and
(c) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after the date hereof (excluding Restricted Payments permitted by clauses (ii), (iii) and (vi) (to the extent such distribution is paid to the Company or a Restricted Subsidiary) of the next succeeding paragraph), is less than the sum (as in effect from time to time, hereinafter referred to as the "Distribution Fund") of (i) 50% of the Company's Cumulative Combined Consolidated Net Income subsequent of the Company for the period (taken as one accounting period) from the beginning of the first fiscal quarter commencing after the date hereof to December 31, 1991 so long as the end of the Company's Combined Tangible most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Worth Income for such period is greater than $31,051,000a deficit, less 100% of such deficit), plus (ii) 100% of the aggregate of the net cash proceeds received by the Company from any issuance the issue or sale since the date hereof of capital shares Equity Interests of the Company subsequent (other than Disqualified Stock), or of Disqualified Stock or debt securities of the Company that have been converted into such Equity Interests (other than Equity Interests (or Disqualified Stock or convertible debt securities) sold to a Subsidiary of the Closing DateCompany and other than Disqualified Stock or convertible debt securities that have been converted into Disqualified Stock), and plus (iii) to the aggregate extent that any Restricted Investment that was made after the date hereof is sold for cash or otherwise liquidated or repaid for cash, the lesser of (A) the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any) and (B) the initial amount of such Restricted Investment. The foregoing provisions will not prohibit (i) the payment of any dividend or the making of any payment or distribution within 60 days after the date of declaration thereof, if at said date of declaration such payment or distribution would have complied with the provisions of this Indenture; (ii) the redemption, repurchase, retirement, defeasance or other acquisition of any Indebtedness subordinated in right of payment to the Notes or Equity Interests of the Company in exchange for, or out of the net cash proceeds received of the substantially concurrent sale (other than to a 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 or other acquisition of Indebtedness subordinated in right of payment to the Notes with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness; (iv) the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Restricted Subsidiary held by any employee or director of the Company (or any of its Subsidiaries), other than a Principal, or any former employee or director of the Company (or any of its Subsidiaries) issued pursuant to any management equity plan or stock option plan or any other management or employee benefit plan or agreement; PROVIDED, HOWEVER, that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests pursuant to this clause (iv) shall not exceed $1.0 million in any twelve-month period and shall not exceed $3.0 million in the aggregate; (v) repurchases of Equity Interests deemed to occur upon the cashless exercise of stock options; (vi) the payment of any dividend by a Subsidiary of the Company to the holders of its Equity Interests on a pro rata basis to all holders of Equity Interests, including the Company or any Restricted Subsidiary of the Company; and (vii) payments in accordance with the terms of the Merger Agreement; PROVIDED THAT with respect to clauses (ii), (iii), (iv) and (v) above, no Default or Event of Default shall have occurred and be continuing immediately after such transaction. 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 from any issuance or such Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any Indebtedness of the Company which has been converted into capital shares of the Company subsequent to the Closing Date, which amount shall be added to the Distribution Fund only after such conversion. Notwithstanding the foregoing, the Company may acquire its own capital shares for an aggregate amount from and after the Closing date equal to the greater of (x) the sum of (i) 25% of the Cumulative Combined Net Income of the Company subsequent to December 31, 1991, plus (ii) $500,000, or (y) the amount then available under the Distribution Fund, which amount shall be charged to the Distribution Fund. No Restricted Payment may be made in other than non-cash or securities which are actively traded on a nationally recognized public market and have a readily ascertainable market value (which value shall be the amount of such Restricted Payment), unless the Company shall have received a report from an independent recognized appraiser as to the fair value of the property to be distributed or transferred, in which case the amount of such Restricted Payment shall be deemed 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 $1.0 million. Not later than the greater date of its fair value (as determined by such appraiser) or its net book value on the books of the Company. Notwithstanding making any of the foregoing provisions of this paragraphRestricted Payment, neither the Company nor any Subsidiary or Affiliate shall make any deliver to the Trustee an Officers' Certificate stating that such Restricted Payment if at is permitted and setting forth the time basis upon which the calculations required by this Section 4.07 were computed, together with a copy of any fairness opinion or after giving effect thereto, there shall exist any Defaultappraisal required by this Indenture.
Appears in 1 contract
Restricted Payments. Neither The Company will not, and will not permit any Restricted Subsidiary to, and Astor Holdings II will not, directly or indirectly; (i) declare or pay any dividend or make any other payment or distribution on account of any Equity Interests of Astor Holdings II, the Company nor or any Restricted Subsidiaries including, without limitation, any payment in connection with any merger or consolidation involving the Company (other than (x) dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company, Astor Holdings II or a Restricted Subsidiary and (y) dividends or distributions payable to the Company or any other Restricted Subsidiary (and, if such Restricted Subsidiary has shareholders other than the Company or another Restricted Subsidiary, to its Subsidiaries other shareholders on a PRO RATA basis to such other shareholders); (ii) purchase, redeem or Affiliates shall otherwise acquire or retire for value any Equity Interests of Astor Holdings II, the Company or any Restricted Subsidiary; (iii) make any principal payment on, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness that is subordinated to the Notes, except at the original final maturity thereof or in accordance with the scheduled mandatory redemption or repayment provisions set forth in the documentation governing such Indebtedness at the Issue Date or, if later, the date such Indebtedness was incurred or (iv) make any Restricted Investment (all such payments and other actions set forth in clauses (i) through (iv) above being collectively referred to as "Restricted Payments"), unless:
(a) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof;
(b) the Company would, at the time of such Restricted Payment or set aside any funds therefor unless, and after giving pro forma effect theretothereto (including, in the case of Restricted Investments, the pro forma effect thereof) as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 4.9; and
(c) such Restricted Payment, together with the aggregate of such all other Restricted Payments for all such purposes subsequent to made by the Closing Company and any Restricted Subsidiary and Astor Holdings II, without duplication, after the Issue Date would not exceed (excluding Restricted Payments permitted by any of clauses (ii), (iv), (v)(B), (vi), (vii) and (viii) of the next succeeding paragraph), is less than the sum (as in effect from time to time, hereinafter referred to as the "Distribution Fund") of (i1) 50% of the Company's Cumulative Combined Consolidated Net Income subsequent for the period (taken as one accounting period) from the beginning of the fiscal quarter during which this Indenture is executed to December 31the end of Astor Holdings II's most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, 1991 so long as the Company's Combined Tangible if such Consolidated Net Worth Income for such period is greater than $31,051,000a deficit, minus 100% of such deficit) PLUS (ii2) 100% of the aggregate of the net cash proceeds received by the Company from any issuance the issue or sale since the Issue Date of capital shares Equity Interests of the Company subsequent or of debt securities of the Company that have been converted into such Equity Interests (other than Equity Interests (or convertible debt securities) sold to a Restricted Subsidiary and other than Disqualified Stock or debt securities that have been converted into Disqualified Stock) or by way of other capital contributions to the Closing DateCompany PLUS (3) to the extent that any Restricted Investment that was made after the Issue Date is sold for cash or otherwise liquidated or repaid for cash, the lesser of (A) the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any) and (B) the initial amount of such Restricted Investment; PROVIDED that no amounts received by the Company by way of capital contributions will be counted in determining the amount available for Restricted Payments under this clause (c) to the extent such proceeds or amounts are excluded in accordance with clause (ii) of the next succeeding paragraph. The foregoing provisions will not prohibit the following: (i) the payment of any dividend within 60 days after the date of declaration thereof, if at such date of declaration such payment would have complied with the provisions of this Indenture; (ii) the defeasance, redemption or repurchase of subordinated Indebtedness with (A) the proceeds from an incurrence of Permitted Refinancing Indebtedness or (B) the proceeds from the substantially concurrent sale (other than to a Subsidiary of the Parent) of Equity Interests of the Parent received by the Company by way of capital contributions; PROVIDED that the amounts of any such capital contributions that are utilized for any such redemption, repurchase, retirement or other acquisition shall be excluded from clause (c)(2) of the preceding paragraph; (iii) the aggregate payment of the net cash proceeds received dividends by the Company from or ABI Acquisition 1 plc to Astor Holdings II and by Astor Holdings II to the Parent, solely in amounts and at the times necessary, to permit payment of amounts required for any issuance repurchase, redemption or other acquisition or retirement for value of any Indebtedness Equity Interests of the Company which has been converted into capital shares Parent (or of Equity Interests of Astor Holdings II) held by any member of the Company subsequent Company's, Astor Holdings II's or the Parent's management pursuant to any management equity subscription agreement or stock option agreement or similar agreement, or otherwise upon their death, disability, retirement or termination of employment or departure from the Closing DateBoard of Directors of the Parent, which amount Astor Holdings II or the Company; PROVIDED that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall be added to not exceed (A) $500,000 in any twelve-month period and (B) $2.0 million in the Distribution Fund only after such conversion. Notwithstanding the foregoing, the Company may acquire its own capital shares for an aggregate amount from and after the Closing date Issue Date; (iv) the repurchase or other acquisition of Existing Disqualified Stock held by ABI Corporation or Astor Holdings II; (v) the payment of dividends by the Company or ABI Acquisition 1 plc to Astor Holdings II, or by Astor Holdings II to the Parent, in amounts and at times necessary to permit payment of (A) unless prohibited and not waived by or on behalf of the lenders under the Senior Bank Facility, amounts payable by the Parent under the Management Services Agreement, consisting of (1) management fees in aggregate amount not to exceed $412,000 in any twelve-month period (adjusted in proportion to increases in the consumer price index), (2) transaction fees equal to not more than 2% of the aggregate acquisition consideration (as the amount of such consideration is determined in accordance with the Management Services Agreement as in effect on the Issue Date) in connection with merger and acquisition services rendered by certain financial advisors in connection with acquisitions by Astor Holdings II and its Subsidiaries and (3) certain reasonable expenses incurred by such advisors in connection with the performance of their obligations under such Management Services Agreement, (B) amounts due under the Tax Sharing Agreement, (C) administrative fees in respect of certain partnerships that are investors in the Parent, in an aggregate amount not exceeding $28,000 in any twelve-month period, and (D) operating expenses of the Parent and Astor Holdings II incurred in the ordinary course of business in an aggregate amount not to exceed $50,000 in any twelve-month period PLUS audit fees and fees paid with respect to filings by the Parent or Astor Holdings II with the Commission; (vi) the payment of dividends on Existing Disqualified Stock owned by ABI Corporation or Astor Holdings II; (vii) subject to the subordination provisions contained in the ABI Shareholder Intercompany Notes, payments under the ABI Shareholder Intercompany Notes by ABI Acquisition 2 plc to ABI Acquisition 1 plc, by ABI Acquisition 1 plc to Astor Holdings II and by Astor Holdings II to the Parent, in each case of amounts due and payable under the terms of the ABI Shareholder Notes and necessary for any required repurchase, payment of principal or payment of interest of or on the ABI Shareholder Notes; and (viii) the purchase of the remaining Equity Interests of Rheochem owned by RCI such that Rheochem becomes a Wholly Owned Restricted Subsidiary that is a Subsidiary Guarantor pursuant to the Rheochem Shareholders' Agreement, if the Company delivers to the Trustee an Officer's Certificate certifying that such purchase has been approved by a majority of the disinterested members of the Board of Directors and attaching a resolution of the Board of Directors (A) to such effect and (B) to the effect that it has determined in good faith that such purchase is at a price no less favorable to the Company than the fair market value of such Equity Interests; PROVIDED that, in the case of clauses (ii), (iii), (iv), (v)(C) and (vi), of this paragraph, no Default or Event of Default shall have occurred or be continuing at the time of such Restricted Payment or would occur as a consequence thereof. The Board of Directors of the Company may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default. For purposes of making such determination, all outstanding Investments by the Company and any Restricted Subsidiary and Astor Holdings II (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 (x) the sum net book value of (i) 25% such Investments at the time of the Cumulative Combined Net Income of the Company subsequent to December 31, 1991, plus (ii) $500,000, or such designation and (y) the amount then available 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. Not later than the date of making any Restricted Payment under the Distribution Fundfirst paragraph of this Section 4.10, which amount shall be charged to the Distribution Fund. No Restricted Payment may be made in other than cash or securities which are actively traded on a nationally recognized public market and have a readily ascertainable market value (which value shall be the amount of such Restricted Payment), unless the Company shall have received a report from an independent recognized appraiser as deliver to the fair value of the property to be distributed or transferred, in which case the amount of Trustee an Officers' Certificate stating that such Restricted Payment is permitted and setting forth the basis upon which the calculations required by this Section 4.10 were computed, which calculations shall be deemed to be based upon the greater of its fair value (as determined by such appraiser) or its net book value on the books of the Company. Notwithstanding any of the foregoing provisions of this paragraph, neither Astor Holdings II's latest available financial statements; PROVIDED that the Company nor shall not have to deliver such an Officer's Certificate in connection with Restricted Payments of less than $200,000 in aggregate amount in any Subsidiary or Affiliate shall make any Restricted Payment if at the time or after giving effect thereto, there shall exist any Defaulttwelve-month period.
Appears in 1 contract
Sources: Indenture (Astor Corp)
Restricted Payments. Neither The Company shall not, and shall not suffer or permit any Subsidiary to, declare or make any dividend payment or other distribution of assets, properties, cash, rights, obligations or securities on account of any shares of any class of its capital stock, or purchase, redeem or otherwise acquire for value any shares of its capital stock or any warrants, rights or options to acquire such shares, now or hereafter outstanding, or repurchase, redeem or prepay any convertible Indebtedness (such payments, redemptions, purchases, repurchases or distributions, collectively, “Restricted Payments”); except that:
(a) any Wholly-Owned Subsidiary may declare and make dividend payments or other distributions to the Company nor or to its immediate parent Subsidiary of the Company;
(b) any of Subsidiary that is not a Wholly-Owned Subsidiary may declare and make pro-rata dividend payments or other pro-rata distributions;
(c) the Company and its Subsidiaries or Affiliates shall may make any other Restricted Payments; provided that (i) (A) the Total Leverage Ratio as of the date of any such Restricted Payment or set aside any funds therefor unless, after (calculated on a Pro Forma Basis giving effect thereto, the aggregate of to such Restricted Payments for all such purposes subsequent to the Closing Date Payment) would not exceed 3.00:1.00 or (B) (1) the sum (Total Leverage Ratio as in effect from time to time, hereinafter referred to as the "Distribution Fund") of (i) 50% of the Company's Cumulative Combined Net Income subsequent date of any such Restricted Payment (calculated on a Pro Forma Basis giving effect to December 31, 1991 so long as the Company's Combined Tangible Net Worth such Restricted Payment) is greater than $31,051,000, 3.00:1.00 but less than the applicable Adjusted Total Leverage Threshold and (ii2) the aggregate of the net cash proceeds received consideration paid and other payments made by the Company from any issuance or sale of capital shares of and its Subsidiaries during the Company subsequent to the Closing Datepreceding twelve (12) months in connection with all such Restricted Payments, and including such proposed Restricted Payments but excluding Restricted Payments during such period permitted under clause (iiii)(A) the aggregate of the net cash proceeds received by the Company from any issuance of any Indebtedness of the Company which has been converted into capital shares of the Company subsequent to the Closing Dateabove, which amount shall be added to the Distribution Fund only after such conversion. Notwithstanding the foregoing, the Company may acquire its own capital shares for an aggregate amount from and after the Closing date equal to does not exceed the greater of (x) $100,000,00050,000,000 and (y) 20.0010.00 % of Pro Forma EBITDA at the sum time of incurrence and (ii) no Default or Event of Default has occurred and is continuing at the time of the consummation of any such Restricted Payment and no Default or Event of Default would occur after giving effect to such Restricted Payment; and
(d) the Company may pay the settlement amount with respect to each $1,000 aggregate principal amount of convertible Indebtedness of the Company converted into shares of the Company’s common stock (x) in cash, which shall not exceed the lesser of $1,000 and the conversion value of such convertible Indebtedness pursuant to the terms and conditions of the applicable governing document of such Indebtedness and (y) if the conversion value of such convertible Indebtedness exceeds $1,000, in the number of shares of the Company’s common stock as calculated pursuant to the terms and conditions of the applicable governing document of such Indebtedness; provided, however, that, in the event the aggregate amount of the shares of the Company’s common stock delivered upon any such conversion would exceed 19.9% of the shares of the Company’s common stock outstanding at the time at which such securities were issued, the Company may pay whole or partial settlement amounts in cash in the aggregate amount, and to the extent, necessary for the Company to be in compliance with the listing requirements of The New York Stock Exchange;
(e) the Company may repurchase a portion of its capital stock that has become vested in employees or directors, in an amount reasonably estimated by the Company to fund the income tax liability accruing to such Persons as a result of the vesting event; and
(f) with respect to the conversion of any convertible Indebtedness of the Company into shares of the Company’s common stock, the Company may pay the cash value of fractional shares of the Company’s common stock pursuant to the terms and conditions of the definitive documentation with respect to such convertible Indebtedness.; and
(g) the Company may make any other Restricted Payments; provided that (i) 25% the aggregate amount of all such Restricted Payments does not exceed the Cumulative Combined Net Income of the Company subsequent to December 31Available Amount, 1991, plus (ii) $500,000, or (y) no Event of Default has occurred and is continuing at the amount then available under time of the Distribution Fund, which amount shall be charged to the Distribution Fund. No consummation of any such Restricted Payment and no Event of Default would occur after giving effect to such Restricted Payment and (iii) on a Pro Forma Basis, the Borrower would be in compliance with each of the covenants set forth in Sections 8.14 and 8.15. For purposes of determining compliance with this Section 8.10, if any Restricted Payment would be permitted pursuant to one or more provisions described above, the Borrower may divide and classify such Restricted Payment in any manner that complies with this Section 8.10 and may later divide and reclassify any such Restricted Payment, so long as the Restricted Payment (as so divided and/or reclassified) would be permitted to be made in other than cash or securities which are actively traded reliance on a nationally recognized public market and have a readily ascertainable market value (which value shall be the amount applicable exception as of the date of such Restricted Payment), unless the Company shall have received a report from an independent recognized appraiser as to the fair value of the property to be distributed or transferred, in which case the amount of such Restricted Payment shall be deemed to be the greater of its fair value (as determined by such appraiser) or its net book value on the books of the Company. Notwithstanding any of the foregoing provisions of this paragraph, neither the Company nor any Subsidiary or Affiliate shall make any Restricted Payment if at the time or after giving effect thereto, there shall exist any Defaultreclassification.
Appears in 1 contract
Sources: Second Amendment (CBIZ, Inc.)
Restricted Payments. Neither the The Company nor any of its Subsidiaries will not declare or Affiliates shall make any Restricted Payment or set aside any funds therefor unless, on the date of declaration in the case of any proposed dividend and on the date of payment or distribution in the case of the making of any other Restricted Payment (the "Computation Date") and after giving effect thereto, the aggregate of such Restricted Payments for all such purposes subsequent to the Closing Date would not exceed the sum (as in effect from time to time, hereinafter referred to as the "Distribution Fund") of :
(i) 50the aggregate amount of all Restricted Payments made during the period commencing on January 1, 1998 and ending on and including the Computation Date (the "Computation Period") shall not exceed an amount equal to the sum of:
(a) 25% (or, in the case of a deficit, minus 100%) of consolidated net income of the Company's Cumulative Combined Net Income subsequent to December 31Company and its Subsidiaries for the Computation Period, 1991 so long as the Company's Combined Tangible Net Worth is greater than $31,051,000, plus
(iib) the aggregate of the net cash proceeds received by the Company from any issuance the issue or sale (other than to a Subsidiary) of capital shares of common or preferred stock (other than Redeemable Preferred Stock) of the Company subsequent (including shares of common stock issued upon conversion of Indebtedness to common stock, it being understood and agreed that in any such conversion, the Company shall be deemed to have received cash proceeds in an amount equal to the Closing Dateprincipal amount of Indebtedness converted to common stock), and
(ii) no Default shall have occurred and (iii) the aggregate of the net cash proceeds received by be continuing; provided, that the Company from shall not in any issuance of any Indebtedness fiscal quarter of the Company which has been converted into capital shares of the Company subsequent declare any dividend to the Closing Dateextent that the amount of such dividend, which amount shall be added to the Distribution Fund only after such conversion. Notwithstanding the foregoing, the Company may acquire its own capital shares for an aggregate amount from and after the Closing date equal to the greater of (x) together with the sum of (i) the aggregate amount of all dividends theretofore declared in such fiscal quarter plus (ii) the aggregate amount of dividends actually paid during the period (the "Measuring Period") of four consecutive fiscal quarters of the Company ended on (or most recently ended prior to) such declaration, would exceed 25% of the Cumulative Combined Net Income consolidated net income of the Company subsequent to December 31, 1991, plus and its Subsidiaries for the Measuring Period (ii) $500,000, or (y) the amount then available under the Distribution Fund, which amount shall be charged to the Distribution Fund. No Restricted Payment may be made in other than cash or securities which are actively traded on a nationally recognized public market and have a readily ascertainable market value (which value shall be the amount of such Restricted Payment), unless the Company shall have received a report from an independent recognized appraiser not pay any dividends it has not previously declared as to permitted hereby), and provided further, that no Restricted Payments shall be permitted if and for so long as the fair value claims-paying ability rating of any Insurance Subsidiary of the property to be distributed or transferredCompany, in which case the amount of such Restricted Payment shall be deemed to be the greater of its fair value (as determined by such appraiser) Standard & Poors Ratings Group (if rated by said agency), falls below AA- (or its net book value on the books of the Company. Notwithstanding any of the foregoing provisions of this paragraph, neither the Company nor any Subsidiary or Affiliate shall make any Restricted Payment if at the time or after giving effect thereto, there shall exist any Defaultis withdrawn).
Appears in 1 contract
Sources: Credit Agreement (Enhance Financial Services Group Inc)
Restricted Payments. Neither Declare or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that:
(a) each Subsidiary may make Restricted Payments to the Company nor Borrower or any Guarantor;
(b) pro rata dividends or other distributions made by a Subsidiary that is not a wholly owned Subsidiary to minority stockholders (or owners of an equivalent interest in the case of a Subsidiary that is an entity other than a corporation);
(c) so long as no Default or Event of Default shall have occurred and be continuing at the time of such Restricted Payment or would result therefrom, the Borrower and each Subsidiary may declare and make dividend payments or other distributions payable solely in the Qualified Capital Stock of such Person;
(d) with respect to an equity award granted pursuant to an equity incentive compensation plan to any current or former director, employee, independent contractor or other service provider, the Borrower or any of its Subsidiaries may (i) withhold Equity Interests to satisfy any applicable withholding tax obligations, in an amount not to exceed $50,000,000 in the aggregate in any fiscal year (calculated based on the value when the tax obligation arises), and (ii) on a cashless basis, withhold Equity Interests to satisfy any applicable exercise or Affiliates shall purchase price; and
(e) the Borrower or any Subsidiary may make any Restricted Payment or set aside any funds therefor unlessPayment; provided, after giving effect theretothat, the aggregate of such Restricted Payments for all such purposes subsequent to the Closing Date would not exceed the sum (as in effect from time to time, hereinafter referred to as the "Distribution Fund") of (i) 50% of the Company's Cumulative Combined Net Income subsequent Borrower shall have delivered to December 31the Administrative Agent a Pro Forma Compliance Certificate demonstrating that, 1991 so long as upon giving Pro Forma Effect to such Restricted Payment, the Company's Combined Tangible Net Worth Consolidated Leverage Ratio is greater at least 0.25 less than $31,051,000the ratio required to be maintained at such time by Section 7.11(a), and (ii) the aggregate no Default or Event of the net cash proceeds received by the Company from any issuance or sale of capital shares of the Company subsequent to the Closing Date, and (iii) the aggregate of the net cash proceeds received by the Company from any issuance of any Indebtedness of the Company which has been converted into capital shares of the Company subsequent to the Closing Date, which amount shall be added to the Distribution Fund only after such conversion. Notwithstanding the foregoing, the Company may acquire its own capital shares for an aggregate amount from and after the Closing date equal to the greater of (x) the sum of (i) 25% of the Cumulative Combined Net Income of the Company subsequent to December 31, 1991, plus (ii) $500,000, or (y) the amount then available under the Distribution Fund, which amount shall be charged to the Distribution Fund. No Restricted Payment may be made in other than cash or securities which are actively traded on a nationally recognized public market and have a readily ascertainable market value (which value shall be the amount of such Restricted Payment), unless the Company Default shall have received a report from an independent recognized appraiser as to occurred and be continuing at the fair value of the property to be distributed or transferred, in which case the amount time of such Restricted Payment shall be deemed to be the greater of its fair value (as determined by such appraiser) or its net book value on the books of the Company. Notwithstanding any of the foregoing provisions of this paragraph, neither the Company nor any Subsidiary or Affiliate shall make any Restricted Payment if at the time or after giving effect thereto, there shall exist any Defaultwould result therefrom.
Appears in 1 contract
Restricted Payments. Neither Declare or pay any dividend (other than dividends payable solely in common stock of the Company nor Person making such dividend) on, or make any payment on account of, or set apart assets for a sinking or other analogous fund for, the purchase, redemption, defeasance, retirement or other acquisition of, any Capital Stock of any Group Member (or enter into or be party to, or make any payment under, any Synthetic Purchase Agreement with respect to any such Capital Stock if the purchase, redemption, defeasance, retirement or other acquisition thereof by the Borrower and its Subsidiaries would otherwise be prohibited under this Section 7.6), whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of the Borrower or any Subsidiary Guarantor, or enter into any derivatives or other transaction with any financial institution, commodities or stock exchange or clearinghouse (a “Derivatives Counterparty”) obligating any Group Member to make payments (other than payments solely in the form of common stock of the Borrower) to such Derivatives Counterparty as a result of any change in market value of any such Capital Stock (collectively, “Restricted Payments”), except that:
(a) any Group Member may pay cash dividends or distributions on its Capital Stock to the Borrower or any of its Subsidiaries Subsidiaries; and
(b) so long as no Default or Affiliates Event of Default shall have occurred and be continuing or would result therefrom at the time such dividends are declared or other Restricted Payment is made (determined on a pro forma basis as if such Restricted Payments or dividends were paid in cash on the date declared or made, as applicable), the Borrower may make any Restricted Payment or set aside any funds therefor unless, after giving effect thereto, the aggregate of such Restricted Payments for all such purposes subsequent to the Closing Date would not exceed the sum (as in effect from time to time, hereinafter referred to as the "Distribution Fund") of (i) 50% of the Company's Cumulative Combined Net Income subsequent to December 31, 1991 so long as the Company's Combined Tangible Net Worth is greater than $31,051,000, (ii) the aggregate of the net cash proceeds received by the Company from any issuance or sale of capital shares of the Company subsequent to the Closing Date, and (iii) the aggregate of the net cash proceeds received by the Company from any issuance of any Indebtedness of the Company which has been converted into capital shares of the Company subsequent to the Closing Date, which amount shall be added to the Distribution Fund only after such conversion. Notwithstanding the foregoing, the Company may acquire its own capital shares for an aggregate amount from and after the Closing date equal to the greater of (x) the sum of (i) 25% of the Cumulative Combined Net Income of the Company subsequent to December 31, 1991, plus (ii) $500,000, or (y) the amount then available under the Distribution Fund, which amount shall be charged to the Distribution Fund. No Restricted Payment may be made in other than cash or securities which are actively traded on a nationally recognized public market and have a readily ascertainable market value (which value shall be the amount of such Restricted Payment), unless the Company shall have received a report from an independent recognized appraiser as to the fair value of the property to be distributed or transferred, in which case the amount of such Restricted Payment shall be deemed to be the greater of its fair value (as determined by such appraiser) or its net book value on the books of the Company. Notwithstanding any of the foregoing provisions of this paragraph, neither the Company nor any Subsidiary or Affiliate shall make any Restricted Payment if at the time or after giving effect thereto, there shall exist any DefaultPayments.
Appears in 1 contract
Restricted Payments. Neither the The Company nor shall not, and shall not permit any of its Restricted Subsidiaries to, directly or Affiliates shall indirectly:
(a) declare or pay any dividend or make any other payment or distribution on account of the Company's Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company) or to the direct or indirect holders of the Company's Equity Interests in their capacity as such (other than dividends or distributions payable solely in the Company's Equity Interests (other than Disqualified Stock) or to the Company);
(b) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any of the Company's Equity Interests;
(c) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Subordinated Indebtedness, except (i) a payment of interest or principal at the Stated Maturity thereof or (ii) Subordinated Indebtedness acquired in anticipation of satisfying a sinking fund obligation, principal installment or payment of principal upon final maturity of such Subordinated Indebtedness, in each case acquired within one year of the date of the sinking fund obligation, principal installment or payment of principal upon maturity; or
(d) make any Restricted Payment or Investment, (all such payments and other actions set aside any funds therefor forth in these clauses (a) through (d) above being collectively referred to as "RESTRICTED PAYMENTS"), unless, at the time of and after giving effect thereto, the aggregate to such Restricted Payment:
(a) no Default or Event of Default has occurred and is continuing or would occur as a consequence of such Restricted Payments for all Payment; and
(b) the Company would, at the time of such purposes subsequent Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Closing Date would not exceed Fixed Charge Coverage Ratio test set forth in Section 4.09(a); and
(c) such Restricted Payment, together with the sum aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after the date hereof (as in effect from time to time, hereinafter referred to as the "Distribution Fund"excluding Restricted Payments permitted by clauses (2) and (3) of the next paragraph), is less than the sum, without duplication, of:
(i) 50% of the Company's Cumulative Combined Consolidated Net Income subsequent for the period (taken as one accounting period) from April 15, 2002 to December 31, 1991 so long as the end of the Company's Combined Tangible most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Worth Income for such period is greater than $31,051,000a deficit, less 100% of such deficit), plus
(ii) 100% of the aggregate of the net cash proceeds received by the Company (including the fair market value of any Permitted Business or assets used or useful in a Permitted Business to the extent acquired in consideration of Equity Interests of the Company (other than Disqualified Stock)) since the date hereof as a contribution to the Company's common equity capital or from any issuance the issue or sale of Equity Interests of the Company (other than Disqualified Stock)or from the issue or sale of convertible or exchangeable Disqualified Stock or convertible or exchangeable debt securities of the Company that have been converted into or exchanged for such Equity Interests (other than Equity Interests (or Disqualified Stock or debt securities) sold to a Subsidiary of the Company), plus
(iii) to the extent that any Restricted Investment that was made after the date hereof is sold for cash or otherwise liquidated or repaid for cash, the lesser of (1) the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any) and (2) the initial amount of such Restricted Investment. So long as no Default has occurred and is continuing or would be caused thereby, the preceding provisions will not prohibit:
(1) the payment of any dividend within 60 days after the date of declaration of the dividend, if at the date of declaration the dividend payment would have complied with the provisions hereof;
(2) the redemption, repurchase, retirement, defeasance or other acquisition of any Subordinated Indebtedness or of any of the Company's Equity Interests by conversion into, or by an exchange for, shares of the Company subsequent to the Closing DateCompany's Equity Interests (other than Disqualified Stock), and (iii) the aggregate or in exchange for, or out of the net cash proceeds received of the substantially concurrent sale (other than to any of the Company's Restricted Subsidiaries) of, the Company's Equity Interests (other than Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such redemption, repurchase, retirement, defeasance or other acquisition will be excluded from clause (c)(ii) of the preceding paragraph;
(3) the defeasance, redemption, repurchase or other acquisition of Subordinated Indebtedness with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness;
(4) the payment of any dividend by a Restricted Subsidiary of the Company to the holders of its Equity Interests on a pro rata basis;
(5) 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 member of the Company's (or any of its Restricted Subsidiaries') management pursuant to any management equity subscription agreement, stock option agreement or similar agreement; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may not exceed $2.5 million in any twelve-month period; and
(6) other Restricted Payments in an aggregate amount since the date hereof not to exceed $25.0 million. The amount of all Restricted Payments (other than cash) will be the fair market value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company from any issuance or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any Indebtedness assets or securities that are required to be valued by this Section 4.10 will be determined by the Board of Directors of the Company which has been converted into capital shares of the Company subsequent whose resolutions with respect thereto will be delivered to the Closing DateTrustee. The Board of Directors' determination must be based upon an opinion or appraisal issued by an accounting, which amount shall be added to appraisal or investment banking firm of national standing if the Distribution Fund only after such conversionfair market value exceeds $5.0 million. Notwithstanding Not later than the foregoingdate of making any Restricted Payment, the Company may acquire its own capital shares for an aggregate amount from and after the Closing date equal shall deliver to the greater of (x) the sum of (i) 25% of the Cumulative Combined Net Income of the Company subsequent to December 31, 1991, plus (ii) $500,000, or (y) the amount then available under the Distribution Fund, which amount shall be charged to the Distribution Fund. No Restricted Payment may be made in other than cash or securities which are actively traded on a nationally recognized public market and have a readily ascertainable market value (which value shall be the amount of such Restricted Payment), unless the Company shall have received a report from Trustee an independent recognized appraiser as to the fair value of the property to be distributed or transferred, in which case the amount of Officers' Certificate stating that such Restricted Payment shall be deemed to be is permitted and setting forth the greater basis upon which the calculations required by this Section 4.10 were computed, together with a copy of its fair value (as determined any fairness opinion or appraisal required by such appraiser) or its net book value on the books of the Company. Notwithstanding any of the foregoing provisions of this paragraph, neither the Company nor any Subsidiary or Affiliate shall make any Restricted Payment if at the time or after giving effect thereto, there shall exist any DefaultIndenture.
Appears in 1 contract
Sources: Indenture (Villa Pines Care LLC)
Restricted Payments. Neither the Company nor 9.1 The Parent will not, and will not permit any of its Restricted Subsidiaries to, directly or Affiliates shall indirectly:
(i) pay any dividend or make any other payment or distribution on account of the Parent’s or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any payment in connection with any merger, amalgamation or consolidation involving the Parent or any of its Restricted Subsidiaries) or to the holders of the Parent’s or any of its Restricted Subsidiaries’ Equity Interests in their capacity as such (other than (A) dividends or distributions payable in Qualified Equity Interests or (B) dividends or other payments or distributions payable to the Parent or a Restricted Subsidiary of the Parent);
(ii) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation) any Equity Interests of the Parent or any direct or indirect parent of the Parent;
(iii) make any voluntary or optional principal payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value, any Subordinated Indebtedness of the Parent or any other Obligor (excluding any Existing Indebtedness or any Indebtedness owed to and held by the Parent or any of its Restricted Subsidiaries); or
(iv) make any Restricted Payment or Investment (all such payments and other actions set aside any funds therefor forth in paragraphs (i) through (iv) above being collectively referred to as “Restricted Payments”), unless, at the time of and after giving effect thereto, the aggregate to such Restricted Payment:
(1) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence of such Restricted Payments for all Payment;
(2) the Parent would, at the time of such purposes subsequent Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Closing Date would Fixed Charge Coverage Ratio test set forth in paragraph 8.1; and
(3) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Parent and its Restricted Subsidiaries since the date of this Agreement (including Restricted Payments deemed to have been made pursuant to the definition of “Designated Additional Notes Contribution” or “Designated Asset Finance Contribution” but excluding Restricted Payments permitted by paragraphs 9.2(2), (3), (4), (5), (6), (7), (8), (9), (10) and (12)), is not exceed greater than the sum sum, without duplication, of:
(as in effect from time to time, hereinafter referred to as the "Distribution Fund") of (ia) 50% of the Company's Cumulative Combined Net Income subsequent to December 31, 1991 so long as the Company's Combined Tangible Net Worth is greater than $31,051,000, (ii) the aggregate of the net cash proceeds received by the Company from any issuance or sale of capital shares of the Company subsequent to the Closing Date, and (iii) the aggregate of the net cash proceeds received by the Company from any issuance of any Indebtedness of the Company which has been converted into capital shares of the Company subsequent to the Closing Date, which amount shall be added to the Distribution Fund only after such conversion. Notwithstanding the foregoing, the Company may acquire its own capital shares for an aggregate amount from and after the Closing date equal to the greater of (x) the sum of (i) 25% of the Cumulative Combined Consolidated Net Income of the Company subsequent Parent for the period (taken as one accounting period) from January 1, 2014 to December 31the end of the Parent’s most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, 1991if such Consolidated Net Income for such period is a deficit, plus less 100% of such deficit); plus
(i) 100% of the aggregate net cash proceeds and (ii) $500,000100% of the Fair Market Value of the property and assets other than cash, in each case, received by the Parent after the date of this Agreement as a contribution to its equity capital or from the issue or sale (other than to a Restricted Subsidiary of the Parent) of Qualified Equity Interests, including upon the exercise of options or warrants, or from the issue or sale (yother than to a Restricted Subsidiary of the Parent) of Disqualified Stock or Indebtedness of the Parent that have been converted into or exchanged for Qualified Equity Interests, together with the aggregate cash and Cash Equivalents received by the Parent or any of its Restricted Subsidiaries at the time of such conversion or exchange; plus
(c) to the extent that any Restricted Investment that was made after the date of this Agreement is sold or otherwise liquidated or repaid for cash or Cash Equivalents, the return of capital in cash or Cash Equivalents with respect to such Restricted Investment (less the cost of disposition, if any); plus
(d) to the extent that any Unrestricted Subsidiary of the Parent is redesignated as a Restricted Subsidiary after the date of this Agreement or is merged into the Parent or a Restricted Subsidiary or transfers all or substantially all its assets to the Parent or a Restricted Subsidiary or an entity in which the Parent or a Restricted Subsidiary has made a Restricted Investment becomes a Restricted Subsidiary, the Fair Market Value of the Investment of the Parent and its Restricted Subsidiaries in such Subsidiary (or the assets so transferred, if applicable) as of the date of such redesignation (other than to the extent of such Investment in such Unrestricted Subsidiary that was made as a Permitted Investment), merger, transfer or other action, as the case may be; plus
(e) any amount previously treated as a Restricted Payment on account of any guarantee entered into by the Parent or a Restricted Subsidiary upon the unconditional release of such guarantee; minus
(f) any amount of interest paid to service Indebtedness incurred pursuant to paragraph 8.1 and part (21) of the definition of Permitted Debt.
9.2 The preceding provisions will not prohibit:
(1) the amount then available under payment of any dividend or other distribution within 60 days after the Distribution Funddate of declaration of the dividend or other distribution, which amount shall be charged if at the date of declaration of such payment would have complied with the provisions of this Agreement;
(2) the making of any Restricted Payment in exchange for, or out of the net proceeds of the substantially concurrent sale or issuance (other than to a Restricted Subsidiary of the Parent), including upon exercise of an option or warrant, of, Qualified Equity Interests or from the substantially concurrent contribution of equity capital with respect to Qualified Equity Interests to the Distribution Fund. No Parent received by the Parent; provided that the amount of any such net proceeds that are utilized for any such Restricted Payment will be excluded from paragraph 9.1(3)(b);
(3) the payment, defeasance, redemption, repurchase or other acquisition or retirement for value of Subordinated Indebtedness of the Parent or any of its Restricted Subsidiaries with the net proceeds from a substantially concurrent incurrence of Permitted Refinancing Indebtedness or in exchange for Qualified Equity Interests;
(4) the payment of any dividend or other distribution (or, in the case of any partnership, limited liability company or similar entity, any similar distribution) by a Restricted Subsidiary of the Parent to the holders of its Equity Interests on a pro rata basis taking into account the relative preferences, if any, of the various classes of Equity Interests in such Restricted Subsidiary;
(5) the repurchase, redemption or other acquisition or retirement for value of any Qualified Equity Interests of the Parent or any of its Restricted Subsidiaries held by any current or former officer, director, consultant or employee of the Parent or any of its Restricted Subsidiaries (or Heirs or other permitted transferees thereof); provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may not exceed $1,000,000 (determined as of the beginning of such calendar year) in any calendar year; provided, further, that such amount may be made in other than increased by an amount not to exceed:
(A) the cash proceeds from the sale of Qualified Equity Interests of the Parent to directors, officers, employees or securities which are actively traded on a nationally recognized public market and have a readily ascertainable market value consultants of the Parent or any of its Restricted Subsidiaries that occurs after the date of this Agreement (which value shall be provided that the amount of such cash proceeds utilized for any such repurchase, redemption, acquisition or other retirement will not increase the amount available for Restricted Payments under paragraph 9.1(3); plus
(B) the cash proceeds of key-man life insurance policies received by the Parent or any Restricted Subsidiary after the date of this Agreement; provided that to the extent that any portion of the unused amounts permitted to be paid pursuant to this paragraph is not utilized in any year, such unused portion may be carried forward and be utilized in one or more subsequent years;
(6) cancellation of Indebtedness owing to the Parent from officers or directors of the Parent in connection with a repurchase of Qualified Equity Interests of the Parent pursuant to any management equity plan or stock option plan or any other management or employee benefit plan or other agreement or arrangement approved by the Board of Directors to the extent such Indebtedness was issued to such officers or directors as consideration for the purchase of the Qualified Equity Interests so repurchased;
(7) so long as no Default or Event of Default has occurred and is continuing or would result thereby, any dividend or distribution consisting of Equity Interests of an Unrestricted Subsidiary or the proceeds of the sale of Equity Interests of an Unrestricted Subsidiary;
(8) the repurchase of Equity Interests deemed to occur upon the exercise of options, warrants or other convertible securities to the extent such Equity Interests represent a portion of the exercise price of those options, warrants or other convertible securities and cash payments in lieu of the issuance of fractional shares in connection with the exercise of options, warrants or other convertible securities;
(9) so long as no Default or Event of Default has occurred and is continuing or would result thereby, the declaration and payment of cash dividends to holders of any class or series of Disqualified Stock of the Parent or preferred stock of a Restricted Subsidiary (excluding the Existing Mandatorily Redeemable Preference Shares), in each case, issued after the date of this Agreement in accordance with paragraph 8;
(10) (A) the declaration and payment of quarterly cash dividends to holders of the Existing Mandatorily Redeemable Preference Shares in accordance with the terms of such instruments and dividends or distributions or interest on Permitted Refinancing Indebtedness or Qualified Equity Interests issued in exchange for, or to refinance, replace, or refund, Existing Mandatorily Redeemable Preference Shares; provided that the amount of cash dividends (or interest) paid in respect of such Permitted Refinancing Indebtedness or Qualified Equity Interests pursuant to this paragraph 9.2(10)(A) shall not exceed an amount per annum equal to 6.0% of the applicable principal amount or liquidation preference (the “Applicable Cap”) of such Existing Mandatorily Redeemable Preference Shares, Permitted Refinancing Indebtedness or Qualified Equity Interests; provided further that any cash dividends (or interest) paid in respect of such Permitted Refinancing Indebtedness or Qualified Equity Interests pursuant to the this paragraph 9.2(10)(A) that would exceed the Applicable Cap will be included in subsequent calculations under paragraph 9.1(3); and (B) the payment, redemption, repurchase or other acquisition or retirement for value or reduction of the outstanding liquidation preference of any Existing Mandatorily Redeemable Preference Shares of the Parent or any of its Restricted Subsidiaries with the net proceeds from a substantially concurrent incurrence of Permitted Refinancing Indebtedness or in exchange for Qualified Equity Interests; provided that such payments pursuant to this paragraph 9.2(10)(B) shall not exceed $50,000,000 in the aggregate; and;
(11) payments made to purchase, redeem, defease or otherwise acquire or retire for value any Subordinated Indebtedness of the Parent or any of its Restricted Subsidiaries with the Excess Proceeds of one or more Asset Sales not involving Collateral, at a purchase price not greater than 100% of the principal amount (or accreted value, in the case of any debt issued at a discount from its principal amount at maturity) thereof, plus accrued and unpaid interest, if any, after the Parent and its Restricted Subsidiaries have satisfied their obligations with respect to such Excess Proceeds set forth under paragraph 5 to the extent that such Subordinated Indebtedness is required to be repurchased or redeemed pursuant to the terms thereof as a result of such Asset Sale;
(12) payments pursuant to paragraphs 12.2(6) or (7); and
(13) Restricted Payments (other than Restricted Investments) in an aggregate amount, when taken together with all Restricted Payments made pursuant to this paragraph 9.2(13) not to exceed $7,500,000.
9.3 The amount of all Restricted Payments (other than cash and Cash Equivalents) will be the Fair Market Value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Parent or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment).
9.4 For purposes of determining compliance with this paragraph 9, unless in the Company shall have received event that a report from an independent recognized appraiser as Restricted Payment permitted pursuant to this paragraph 9 or a Permitted Investment meets the fair value criteria of more than one of the property categories of Restricted Payment described in paragraphs 9.2(1) through (13) above or one or more paragraphs of the definition of “Permitted Investments,” the Parent shall be permitted to be distributed classify such Restricted Payment or transferredPermitted Investment (or any portion thereof) on the date it is made, in which case the amount or later reclassify, all or a portion of such Restricted Payment or Permitted Investment, in any manner that complies with this paragraph 9, and such Restricted Payment or Permitted Investment shall be deemed treated as having been made pursuant to be the greater only one of its fair value (as determined by such appraiser) paragraphs of this paragraph 9 or its net book value on the books of the Company. Notwithstanding any definition of the foregoing provisions of this paragraph, neither the Company nor any Subsidiary or Affiliate shall make any Restricted Payment if at the time or after giving effect thereto, there shall exist any Default“Permitted Investment.”
Appears in 1 contract
Restricted Payments. Neither the Company nor (a) Each Borrower will not, and will not permit or cause any of its Subsidiaries to, directly or Affiliates shall indirectly, declare or make any Restricted Payment dividend payment or make any other distribution of cash, property or assets, in respect of any of its Capital Stock or any warrants, rights or options to acquire its Capital Stock, or purchase, redeem, retire or otherwise acquire for value any shares of its Capital Stock or any warrants, rights or options to acquire its Capital Stock, or set aside funds for any funds therefor unlessof the foregoing (all of the foregoing, collectively, “Restricted Payments”), other than:
(i) dividend payments or other distributions payable solely in shares of Capital Stock or rights to acquire Capital Stock, in each case that is not Disqualified Capital Stock;
(ii) dividend payments or other distributions by a Subsidiary of ▇▇▇▇▇▇▇▇ to ▇▇▇▇▇▇▇▇ or another Subsidiary of ▇▇▇▇▇▇▇▇, in each case to the extent not prohibited under applicable Requirements of Law;
(iii) other Restricted Payments so long as (A) no Default or Event of Default shall have occurred and be continuing or would result therefrom, and (B) immediately after giving effect theretoto such Restricted Payment and any Indebtedness incurred in connection therewith, either (1) the Leverage Ratio is less than or equal to 2.75:1.0 (determined on a Pro Forma Basis for the Reference Period then most recently ended for which ▇▇▇▇▇▇▇▇ has delivered the financial statements required by Section 6.1 (and a Compliance Certificate)) or (2) the aggregate amount of such Restricted Payments for all such purposes subsequent paid during the current fiscal year pursuant to the Closing Date would this Section 8.6(a)(iii) does not exceed the sum of $25,000,000 plus the Available Additional Basket; and
(as in effect from time to time, hereinafter referred to as the "Distribution Fund"iv) of (i) 50% of the Company's Cumulative Combined Net Income subsequent to December 31, 1991 so long as the Company's Combined Tangible Net Worth is greater than $31,051,000, (ii) the aggregate of the net cash proceeds received by the Company from any issuance or sale of capital shares of the Company subsequent to the Closing Dateextent constituting Restricted Payments, Investments permitted under Section 8.5 and transactions permitted under Section 8.1.
(b) Each Borrower will not, and will not permit or cause any of its Subsidiaries to, make (iiior give any notice in respect of) the aggregate any payment or prepayment of the net cash proceeds received by the Company from principal on, or interest, fees or premium (if any) with respect to, any issuance Subordinated Indebtedness, or directly or indirectly make any redemption (including pursuant to any change of control or asset disposition provision), retirement, defeasance or other acquisition for value of any Indebtedness of the Company which has been converted into capital shares of the Company subsequent to the Closing Date, which amount shall be added to the Distribution Fund only after such conversion. Notwithstanding the foregoing, the Company may acquire its own capital shares for an aggregate amount from and after the Closing date equal to the greater of (x) the sum of (i) 25% of the Cumulative Combined Net Income of the Company subsequent to December 31, 1991, plus (ii) $500,000Subordinated Indebtedness, or (y) the amount then available under the Distribution Fund, which amount shall be charged to the Distribution Fund. No Restricted Payment may be made in other than cash make any deposit or securities which are actively traded on a nationally recognized public market and have a readily ascertainable market value (which value shall be the amount of such Restricted Payment), unless the Company shall have received a report from an independent recognized appraiser as to the fair value of the property to be distributed or transferred, in which case the amount of such Restricted Payment shall be deemed to be the greater of its fair value (as determined by such appraiser) or its net book value on the books of the Company. Notwithstanding otherwise set aside funds for any of the foregoing purposes; provided, however, that, ▇▇▇▇▇▇▇▇ and its Subsidiaries may make scheduled interest payments on any Subordinated Indebtedness permitted under Section 8.2(vii) in accordance with the terms of such Indebtedness (including any subordination provisions of this paragraph, neither the Company nor any Subsidiary or Affiliate shall make any Restricted Payment if at the time or after giving effect thereto, there shall exist any Defaultthereof).
Appears in 1 contract
Sources: Credit Agreement (Crawford & Co)
Restricted Payments. Neither the The Company nor shall not, and shall not permit any of its Restricted Subsidiaries to, directly or Affiliates shall indirectly: (i) declare or pay any dividend or make any other payment or distribution on account of the Company's or any of its Restricted Subsidiaries' Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company) or to the direct or indirect holders of the Company's Equity Interests in their capacity as such (other than dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company or dividends or distributions payable to the Company or any Wholly Owned Restricted Subsidiary of the Company); (ii) purchase, redeem or otherwise acquire or retire for value any Equity Interests of the Company or any Affiliate of the Company (other than (A) any such Equity Interests owned by the Company or any Wholly Owned Restricted Subsidiary of the Company that is a Subsidiary Guarantor and (B) Employee Stock Repurchases); (iii) make any principal payment on, or purchase, redeem, defease or otherwise acquire or retire for value any Subordinated Indebtedness, except in accordance with the mandatory redemption or repayment provisions set forth in the original documentation governing such Indebtedness; or (iv) make any Restricted Payment or Investment (all such payments and other actions set aside any funds therefor forth in clauses (i) through (iv) above being collectively referred to as "Restricted Payments"), unless, at the time of and after giving effect theretoto such Restricted Payment:
(a) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof;
(b) the Company would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) pursuant to the Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 4.09 hereof; and
(c) such Restricted Payment, together with the aggregate of such all other Restricted Payments for all such purposes subsequent to made by the Closing Company and its Restricted Subsidiaries after the Series A/B Issue Date would not exceed (excluding Restricted Payments permitted by clauses (y) and (z) the next succeeding paragraph is less than the sum (as in effect from time to time, hereinafter referred to as the "Distribution Fund") of (i) 50% of the Company's Cumulative Combined Consolidated Net Income subsequent of the Company for the period (taken as one accounting period) from the beginning of the first fiscal quarter commencing after the Series A/B Issue Date to December 31, 1991 so long as the end of the Company's Combined Tangible most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Worth Income for such period is greater than $31,051,000a deficit, less 100% of such deficit), plus (ii) 100% of the aggregate of the net cash proceeds Net Equity Proceeds (A) received by the Company from any issuance the issue or sale sale, subsequent to the Series A/B Issue Date, of capital shares Qualified Capital Stock of the Company or (B) of any other Equity Interests or debt securities of the Company that have been issued subsequent to the Closing DateSeries A/B Issue Date and that have been converted into such Qualified Capital Stock (other than any Qualified Capital Stock sold to a Restricted Subsidiary of the Company or issued upon conversion of the Convertible Preferred Stock), and plus (iii) to the aggregate extent not otherwise included in Consolidated Net Income, the net reduction in Investments in Unrestricted Subsidiaries resulting from dividends, repayments of loans or advances, or other transfers of assets, in each case to the Company or a Restricted Subsidiary after the Series A/B Issue Date from any Unrestricted Subsidiary or from the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary (valued as provided below), plus (iv) $15 million. The foregoing provisions shall not prohibit any of the net cash proceeds received by the Company from any issuance of any Indebtedness of the Company which has been converted into capital shares of the Company subsequent to the Closing Date, which amount shall be added to the Distribution Fund only after such conversion. Notwithstanding the foregoing, the Company may acquire its own capital shares for an aggregate amount from and after the Closing date equal to the greater of following: (x) the sum payment of (i) 25% any dividend within 60 days after the date of declaration thereof, if at said date of declaration such payment would have complied with the Cumulative Combined Net Income provisions of the Company subsequent to December 31, 1991, plus (ii) $500,000, or this Indenture; (y) the amount then available under the Distribution Fundredemption, which amount shall be charged to the Distribution Fund. No Restricted Payment may be made in repurchase, retirement or other than cash or securities which are actively traded on a nationally recognized public market and have a readily ascertainable market value (which value shall be the amount acquisition of such Restricted Payment), unless any Equity Interests of the Company shall have received a report from an independent recognized appraiser as to the fair value in exchange for, or out of the property to be distributed or transferred, in which case the amount of such Restricted Payment shall be deemed to be the greater of its fair value (as determined by such appraiser) or its net book value on the books of the Company. Notwithstanding any of the foregoing provisions of this paragraph, neither the Company nor any Subsidiary or Affiliate shall make any Restricted Payment if at the time or after giving effect thereto, there shall exist any Default.the
Appears in 1 contract
Sources: Indenture (Parker Drilling Co /De/)
Restricted Payments. Neither the The Company nor shall not, and shall not permit any of its Restricted Subsidiaries to, directly or Affiliates shall indirectly, (i) declare or pay any dividend or make any other payment or distribution on account of the Company's or any of its Restricted Subsidiaries' Equity Interests (including, without limitation, any such payment in connection with any merger or consolidation involving the Company) or to the direct or indirect holders of the Company's Equity Interests in their capacity as such (other than dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company); (ii) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or any of its Restricted Subsidiaries (other than any such Equity Interests owned by the Company or any Wholly Owned Restricted Subsidiary of the Company); (iii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value, any Indebtedness that is subordinated in right of payment to the Notes or the Subsidiary Guarantees, as the case may be, except a payment of interest or principal at Stated Maturity (other than an interim payment of principal on the Subordinated Notes); or (iv) make any Restricted Payment or Investment (all such payments and other actions set aside any funds therefor forth in clauses (i) through (iv) above being collectively referred to as "Restricted Payments"), unless, at the time of and after giving effect theretoto such Restricted Payment:
(a) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof;
(b) the Company would, at the aggregate time of such Restricted Payments for all Payment and after giving pro forma effect thereto as if such purposes subsequent Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Closing Consolidated Interest Coverage Ratio test set forth in Section 4.09 hereof; and
(c) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after the Issue Date would not exceed (excluding Restricted Payments permitted by clauses (b), (c), (d), (f), (g), (h) and (i), but including Restricted Payments permitted by clauses (a) and (e) of the next succeeding paragraph), is less than the sum of the following: (as in effect from time to time, hereinafter referred to as the "Distribution Fund") of (iA) 50% of the Company's Cumulative Combined cumulative Consolidated Net Income subsequent of the Company for the period (taken as one accounting period) from April 1, 2001 to December 31, 1991 so long as the end of the Company's Combined Tangible most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Worth Income for such period is greater than $31,051,000a deficit, less 100% of such deficit), plus (iiB) subject to clause (b) of the next succeeding paragraph, 100% of the aggregate of the net cash proceeds received by the Company since the Issue Date from any issuance the issue or sale of capital shares Equity Interests of the Company subsequent (other than Disqualified Stock) or of Disqualified Stock or debt securities of the Company that have been converted into, or exchanged for, such Equity Interests (other than any such Equity Interests, Disqualified Stock or convertible debt securities sold to a Restricted Subsidiary of the Company and other than Disqualified Stock or convertible debt securities that have been converted into, or exchanged for, Disqualified Stock), plus (C) to the Closing Dateextent that any Restricted Investment that was made after the Issue Date is sold for cash or otherwise liquidated or repaid for cash, the lesser of (1) cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any) and (iii2) the aggregate initial amount of such Restricted Investment plus (D) in the event that any Unrestricted Subsidiary is redesignated as a Restricted Subsidiary, the lesser of (1) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Subsidiary as of the date of redesignation and (2) the amount of such Investments plus (E) $10,000,000. The foregoing provisions will not prohibit any of the following: (a) 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; (b) the redemption, repurchase, retirement, defeasance or other acquisition of any subordinated Indebtedness of the Company or any Guarantor or any Equity Interests of the Company or any of its Restricted Subsidiaries in exchange for, or out of the net cash proceeds received by of the substantially concurrent sale (other than to a Restricted Subsidiary of the Company) of, other Equity Interests of the Company from (other than any issuance 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)(B) of the preceding paragraph; (c) the defeasance, redemption, repurchase, retirement or other 42 49 acquisition of subordinated Indebtedness of the Company which has been converted into capital shares or any Guarantor with the net cash proceeds from an incurrence of, or in exchange for, Permitted Refinancing Indebtedness; (d) the payment of any dividend or distribution by a Restricted Subsidiary of the Company subsequent to the Closing DateCompany or any Wholly Owned Restricted Subsidiary of the Company; (e) so long as no Default or Event of Default has occurred and is continuing, which amount 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 employee of the Company or any of its Restricted Subsidiaries, provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall not exceed $500,000 in any calendar year; (f) the acquisition of Equity Interests by the Company in connection with the exercise of stock options or stock appreciation rights by way of cashless exercise or in connection with the satisfaction of withholding tax obligations; (g) in connection with an acquisition by the Company or by any of its Restricted Subsidiaries, the return to the Company or any of its Restricted Subsidiaries of Equity Interests of the Company or any of its Restricted Subsidiaries constituting a portion of the purchase price consideration in settlement of indemnification claims; (h) the purchase by the Company of fractional shares of Equity Interests arising out of stock dividends, splits or combinations or business combinations; and (i) the acquisition by the Company of any Trutta/JEDI Warrants in exchange for Subordinated Notes. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default. For purposes of making such designation, all outstanding Investments by the Company and its Restricted Subsidiaries (except to the extent repaid in cash) in the Subsidiary so designated shall be added deemed to be Restricted Payments at the Distribution Fund only after time of such conversion. Notwithstanding the foregoingdesignation, the Company may acquire its own capital shares for in an aggregate amount from and after the Closing date equal to the greater of (xa) the sum net book value of such Investments at the time of such designation and (b) the fair market value of such Investments at the time of such designation. Such designation shall only be permitted if such Restricted Payments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of "Unrestricted Subsidiary." The Board of Directors may also redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if such redesignation complies with the requirements described in the definition of "Unrestricted Subsidiary." If the aggregate amount of all Restricted Payments calculated for purposes of the first paragraph of this Section 4.07 includes an Investment in an Unrestricted Subsidiary that subsequently becomes a Restricted Subsidiary pursuant to the terms of this paragraph, then the aggregate amount of such Restricted Payments shall be reduced by the lesser of (ia) 25% an amount equal to the fair market value of the Cumulative Combined Net Income of Investments previously made by the Company subsequent to December 31, 1991, plus and its Restricted Subsidiaries in such Unrestricted Subsidiary at the time it becomes a Restricted Subsidiary and (iib) $500,000, or (y) the amount then available under the Distribution Fund, which amount shall be charged to the Distribution Fund. No Restricted Payment may be made in other than cash or securities which are actively traded on a nationally recognized public market and have a readily ascertainable market value (which value shall be the amount of such Restricted Payment), unless the Company Investments. Any designation or redesignation of a Subsidiary shall have received a report from an independent recognized appraiser as be evidenced to the fair value Trustee by filing with the Trustee a Board Resolution giving effect to such action and evidencing the valuation of the property to be distributed or transferred, in which case the amount of such Restricted Payment shall be deemed to be the greater of its fair value any Investment relating thereto (as determined in good faith by the Board of Directors) and an Officers' Certificate certifying that such appraiser) or its net book value on action complied with the books terms of the Company. Notwithstanding any definition of the foregoing provisions of "Unrestricted Subsidiary" set forth in this paragraph, neither the Company nor any Subsidiary or Affiliate shall make any Restricted Payment if at the time or after giving effect thereto, there shall exist any DefaultIndenture and with this Section 4.07.
Appears in 1 contract
Restricted Payments. Neither the (a) The Company nor shall not, and shall not permit any of its Restricted Subsidiaries to, directly or Affiliates shall indirectly:
(1) declare or pay any dividend or make any other payment or distribution on account of the Company's Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company) or to the direct or indirect holders of the Company's Equity Interests in their capacity as such (other than dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company);
(2) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or any direct or indirect parent of the Company held by any Person (other than a Restricted Subsidiary of the Company);
(3) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness of the Company or any Restricted Subsidiary that is contractually subordinated to the Notes or any Note Guarantee (excluding any intercompany Indebtedness between or among the Company and any of its Restricted Subsidiaries and excluding the purchase, repurchase or other acquisition of any subordinated Indebtedness purchased in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case due within one year of the date of acquisition), except a payment of interest or principal at the Stated Maturity thereof; or
(4) make any Restricted Payment or Investment; (all such payments and other actions set aside any funds therefor forth in these clauses (1) through (4) above being collectively referred to as "Restricted Payments" for purposes of this covenant), unless, at the time of and after giving effect thereto, the aggregate to such Restricted Payment:
(1) no Default or Event of Default has occurred and is continuing or would occur as a consequence of such Restricted Payments for all Payment; and
(2) the Company would, at the time of such purposes subsequent Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Closing Date would not exceed Fixed Charge Coverage Ratio test set forth in Section 4.09(a) hereof; and
(3) such Restricted Payment, together with the sum aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries since the date of this Indenture (as in effect from time to timeexcluding Restricted Payments permitted by clauses (2), hereinafter referred to as the "Distribution Fund"(3), (5), (6), (7), (8), (9), (10), (11) and (12) of Section 4.07(b)), is less than the sum, without duplication, of:
(iA) 50% of the Company's Cumulative Combined Consolidated Net Income subsequent of the Company for the period (taken as one accounting period) from July 1, 2003 to December 31, 1991 so long as the end of the Company's Combined Tangible most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Worth Income for such period is greater than $31,051,000a deficit, less 100% of such deficit), plus
(iiB) 100% of the aggregate of the net cash proceeds received by the Company since the date of this Indenture as a contribution to its common equity capital from any issuance the concurrent issue or sale of capital shares (1) Dynegy Equity Interests (other than Disqualified Stock) or (2) convertible or exchangeable Disqualified Stock of Dynegy or convertible or exchangeable debt securities of Dynegy that have been converted into or exchanged for Equity Interests (other than Disqualified Stock) of Dynegy (other than Equity Interests (or Disqualified Stock or debt securities) sold to a Subsidiary of Dynegy), plus
(C) to the extent that any Restricted Investment that was made after the date of this Indenture is sold for cash or otherwise liquidated or repaid for cash, the lesser of (1) the cash return with respect to such Restricted Investment (less the cost of disposition, if any) and (2) the initial amount of such Restricted Investment, plus
(D) to the extent that any Unrestricted Subsidiary of the Company subsequent designated as such after the date of this Indenture is redesignated as a Restricted Subsidiary after the date of this Indenture, the Fair Market Value of the Company's Investment in such Subsidiary as of the date of such redesignation, plus
(E) 50% of any dividends received by the Company or any of its Restricted Subsidiaries after the date of this Indenture from an Unrestricted Subsidiary of the Company, to the Closing Date, and extent that such dividends were not otherwise included in Consolidated Net Income of the Company for such period.
(iiib) The provisions of Section 4.07(a) shall not prohibit:
(1) the aggregate payment of any dividend within 60 days after the date of declaration of the dividend, if at the date of declaration the dividend payment would have complied with the provisions of this Indenture;
(2) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the making of any Restricted Payment in exchange for, or out of the net cash proceeds received by of the Company from any issuance substantially concurrent sale (other than to a Subsidiary of any Indebtedness the Company) of, Equity Interests of the Company which has been converted into (other than Disqualified Stock) or from the substantially concurrent contribution of common equity capital shares of the Company subsequent to the Closing Date, which amount shall be added to the Distribution Fund only after such conversion. Notwithstanding the foregoing, the Company may acquire its own capital shares for an aggregate amount from and after the Closing date equal to the greater of (x) the sum of (i) 25% of the Cumulative Combined Net Income of the Company subsequent to December 31, 1991, plus (ii) $500,000, or (y) the amount then available under the Distribution Fund, which amount shall be charged to the Distribution Fund. No Restricted Payment may be made in other than cash or securities which are actively traded on a nationally recognized public market and have a readily ascertainable market value (which value shall be Company; provided that the amount of any such Restricted Payment), unless the Company shall have received a report from an independent recognized appraiser as to the fair value of the property to be distributed or transferred, in which case the amount of net cash proceeds that are utilized for any such Restricted Payment shall be excluded from clause (3)(b) of the Section 4.07(a);
(3) the defeasance, redemption, repurchase or other acquisition of Indebtedness of the Company or any of its Restricted Subsidiaries that is contractually subordinated to the Notes or to any Note Guarantee in exchange for or with the net cash proceeds from a substantially concurrent (a) incurrence of Permitted Refinancing Indebtedness or issuance of Equity Interests (other than Disqualified Stock) of the Company or (b) contribution to the capital of the Company or any of its Restricted Subsidiaries of proceeds from the incurrence of Indebtedness of Dynegy (excluding Indebtedness that is Guaranteed by the Company or any of its Restricted Subsidiaries) or issuance of Equity Interests of Dynegy;
(4) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, from time to time, the payment of dividends in cash to Dynegy to repurchase, redeem or otherwise acquire or retire for value, any Equity Interests of Dynegy or any Restricted Subsidiary of Dynegy held by any current or former officer, director or employee of Dynegy or any of its Restricted Subsidiaries pursuant to any equity subscription agreement, stock option agreement, shareholders' agreement, employee benefit plan or similar agreement; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests in any twelve-month period shall not exceed $1.0 million; provided further, that any amounts not used in any twelve-month period may be carried forward, in an amount not to exceed $1.0 million, to the following twelve-month period.
(5) the repurchase of Equity Interests deemed to be occur upon the greater exercise of its fair value (as determined by stock options to the extent such appraiser) or its net book value on the books Equity Interests represent a portion of the Company. Notwithstanding exercise price of those stock options;
(6) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the declaration and payment of regularly scheduled or accrued dividends to holders of any class or series of Disqualified Stock of the foregoing provisions Company or any Restricted Subsidiary of the Company issued on or after the date of this paragraph, neither Indenture in accordance with the Company nor any Subsidiary or Affiliate shall make any Restricted Payment if at the time or after giving effect thereto, there shall exist any Default.Fixed Charge Coverage test set forth in Section 4.09(a) hereof;
Appears in 1 contract
Sources: Indenture (Dynegy Inc /Il/)
Restricted Payments. Neither the The Company nor shall not make, and shall not permit any of its Subsidiaries to make, directly or Affiliates shall make indirectly, any Restricted Payment or set aside any funds therefor unless, after giving effect thereto, the aggregate of such Restricted Payments for all such purposes subsequent prior to the Closing Date would not exceed the sum (as in effect from time to time, hereinafter referred to as the "Distribution Fund") of (i) 50% of the Company's Cumulative Combined Net Income subsequent to December 31, 1991 so long as the Company's Combined Tangible Net Worth is greater than $31,051,000, (ii) the aggregate of the net cash proceeds received by the Company from any issuance or sale of capital shares of the Company subsequent to the Closing Datea Qualifying IPO, and (iii) the aggregate of the net cash proceeds received by the Company from any issuance of any Indebtedness of the Company which has been converted into capital shares of the Company subsequent to the Closing Date, which amount thereafter shall be added to the Distribution Fund only after such conversion. Notwithstanding the foregoing, the Company may acquire its own capital shares for an aggregate amount from and after the Closing date equal to the greater of (x) the sum of (i) 25% of the Cumulative Combined Net Income of the Company subsequent to December 31, 1991, plus (ii) $500,000, or (y) the amount then available under the Distribution Fund, which amount shall be charged to the Distribution Fund. No Restricted Payment may be made in other than cash or securities which are actively traded on a nationally recognized public market and have a readily ascertainable market value (which value shall be the amount of such Restricted Payment), unless the Company shall have received a report from an independent recognized appraiser as to the fair value of the property to be distributed or transferred, in which case the amount of such Restricted Payment shall be deemed to be the greater of its fair value (as determined by such appraiser) or its net book value on the books of the Company. Notwithstanding any of the foregoing provisions of this paragraph, neither the Company nor any Subsidiary or Affiliate shall not make any Restricted Payment if at the time or of, and after giving effect theretoto, there such proposed Restricted Payment,
(a) a Default or Event of Default shall exist have occurred and be continuing, or
(b) the Minimum Consolidated Interest Expense Coverage Ratio is not complied with, or
(c) the aggregate amount of such Restricted Payment and all other Restricted Payments declared or made since the Issue Date (the amount of any Default.Restricted Payment, if made other than in cash, to be based upon Fair Market Value at the time of such Restricted Payment) would exceed an amount equal to the sum of:
(1) 50% of the aggregate amount of Consolidated Net Income accrued during the period (treated as one accounting period) from the date of initial receipt by the Company of proceeds from the sale of Common Shares in the Qualifying IPO to the end of the most recent Fiscal Quarter ending at least 45 days prior to the date of such Restricted Payment (or if the aggregate amount of Consolidated Net Income for such period shall be a deficit, minus 100% of such deficit), plus
(2) 100% of the Capital Stock Sale Proceeds, plus
(3) the sum of:
(A) the aggregate net cash proceeds received by the Company or any Subsidiary from the issuance or sale after the Issue Date of convertible or exchangeable Debt that has been converted into or exchanged for Capital Stock (other than Disqualified Stock) of the Company, and
(B) the aggregate amount by which Debt (other than Subordinated Obligations) of the Company or any Subsidiary is reduced on the Company’s consolidated balance sheet on or after the Issue Date upon the conversion or exchange of any Debt (other than Subordinated Obligations) issued or sold on or prior to the Issue Date that is convertible or exchangeable for Capital Stock (other than Disqualified Stock) of the Company, excluding, in the case of clause (A) or (B):
Appears in 1 contract
Restricted Payments. Neither the Company nor any of its Subsidiaries (a) Declare or Affiliates shall make make, directly or indirectly, any Restricted Payment or set aside any funds therefor unlessamount for any such purpose.
(b) Notwithstanding the provisions of SECTION 7.06(a), either Borrower or any Subsidiary may make Restricted Payments, PROVIDED that (i) such Restricted Payment is in compliance with applicable law, (ii) at the time of such payment and immediately after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (iii) except with respect to Restricted Payments made pursuant to CLAUSE (iv) below, the aggregate amount of such Restricted Payment, together with the aggregate amount of all other Restricted Payments for all such purposes subsequent paid by the Borrowers and the Subsidiaries in the fiscal year in which the Restricted Payment is proposed to the Closing Date would be paid, shall not exceed the sum (as in effect from time to time, hereinafter referred to as the "Distribution Fund") least of (i) 50% of the Company's Cumulative Combined Net Income subsequent to December 31, 1991 so long as the Company's Combined Tangible Net Worth is greater than $31,051,000, (ii) the aggregate of the net cash proceeds received by the Company from any issuance or sale of capital shares of the Company subsequent to the Closing Date, and (iii) the aggregate of the net cash proceeds received by the Company from any issuance of any Indebtedness of the Company which has been converted into capital shares of the Company subsequent to the Closing Date, which amount shall be added to the Distribution Fund only after such conversion. Notwithstanding the foregoing, the Company may acquire its own capital shares for an aggregate amount from and after the Closing date equal to the greater of (x) the sum of (iA) 25% of the Cumulative Combined Consolidated Net Income for the fiscal year preceding the year in which the Restricted Payment is proposed to be paid, (B) the Borrower's Portion of Excess Cash Flow for the Company subsequent fiscal year preceding the year in which the Restricted Payment is proposed to December 31be paid and (C) (x) prior to the JSC Transaction Date, 1991, plus (ii) $500,000U.S.$25,000,000, or (y) on and after the amount then available under the Distribution FundJSC Transaction Date, which amount shall be charged to the Distribution Fund. No U.S.$50,000,000, and (iv) Restricted Payment Payments may be made directly or indirectly to SSCC in other than cash or securities which are actively traded on a nationally recognized public market aggregate amount not to 102 exceed U.S.$5,000,000 in any fiscal year, to the extent necessary to pay general corporate, legal, administrative and have a readily ascertainable market value (which value shall be overhead expenses incurred by SSCC in the amount ordinary course of such business; PROVIDED, HOWEVER, that, after the JSC Transaction Date, Stone may also make Restricted PaymentPayments to the extent permitted by SECTION 7.06(b)(vi), unless the Company shall have received a report from an independent recognized appraiser as to the fair value 7.06(c), 7.06(e), and 7.06(f) of the property to be distributed or transferred, JSC Credit Agreement as in which case the amount of such Restricted Payment shall be deemed to be the greater of its fair value (as determined by such appraiser) or its net book value effect on the books of the Company. Notwithstanding any of the foregoing provisions of this paragraph, neither the Company nor any Subsidiary or Affiliate shall make any Restricted Payment if at the time or after giving effect thereto, there shall exist any DefaultRestatement Date.
Appears in 1 contract
Restricted Payments. Neither the The Company nor shall not, and shall not permit any of its Restricted Subsidiaries to, directly or Affiliates shall indirectly: (i) declare or pay any dividend or make any other payment or distribution on account of the Company's or any of its Restricted Subsidiaries' Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company or any of its Restricted Subsidiaries) or to the direct or indirect holders of the Company's or any of its Restricted Subsidiaries' Equity Interests (other than dividends or distributions by the Company payable in Equity Interests (other than Disqualified Stock) of the Company, or dividends or distributions by a Restricted Subsidiary made only to the Company or a Restricted Subsidiary of the Company); (ii) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company (other than any such Equity Interests owned by the Company or any Restricted Subsidiary of the Company); (iii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness that is subordinated to the Securities, except, in each use, a payment of interest or principal at Stated Maturity; or (iv) make any Restricted Payment or Investment (all such payments and other actions set aside any funds therefor forth in clauses (i) through (iv) above being collectively referred to as "Restricted Payments"), unless,
(a) at the time of and after giving effect theretoto such Restricted Payment, no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof;
(b) in the case of clauses (i), (ii) and (iii) above, and, in the case of any Restricted Investment that is not an Investment in a Permitted Business, the aggregate Company would, at the time of such Restricted Payments for all Payment and after giving pro forma effect thereto as if such purposes subsequent Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Closing Date would first paragraph of Section 4.09 hereof; and
(c) the aggregate amount (if not exceed made in cash, the sum fair market value as determined in good faith by the Board of Directors) of such Restricted Payment and all other Restricted Payments made by the Company and its Restricted Subsidiaries (excluding Restricted Payments permitted by clauses (ii), (iii), (iv), (x) and (xiii) (but, in the case of clause (xiii), only to the extent that such Restricted Payments are reflected as in effect from time to timean expense on the income statements of the Company) of the next succeeding paragraph), hereinafter referred to as is less than the "Distribution Fund") sum, without duplication, of (i) 50% of the Company's Cumulative Combined Net Income subsequent to December 31, 1991 so long as the Company's Combined Tangible Net Worth is greater than $31,051,000, (ii) the aggregate of the net cash proceeds received by the Company from any issuance or sale of capital shares of the Company subsequent to the Closing Date, and (iii) the aggregate of the net cash proceeds received by the Company from any issuance of any Indebtedness of the Company which has been converted into capital shares of the Company subsequent to the Closing Date, which amount shall be added to the Distribution Fund only after such conversion. Notwithstanding the foregoing, the Company may acquire its own capital shares for an aggregate amount from and after the Closing date equal to the greater remainder of (x) the sum of (i) 25100% of cumulative Consolidated Cash Flow (or, in case Consolidated Cash Flow shall be negative, less 100% of such deficit) for the Cumulative Combined Net Income period (taken as one accounting period) beginning on the date of this Indenture and ending on the last day of the last full fiscal quarter immediately preceding the date of such Restricted Payment minus (y) the product of 1.5 times the cumulative Consolidated Interest Expense of the Company subsequent to December 31, 1991from the date of this Indenture through the last day of the last full fiscal quarter immediately preceding the date of such Restricted Payment, plus (ii) $500,000, 100% of the aggregate net cash proceeds and the Fair Market Value of property or (y) the amount then available under the Distribution Fund, which amount shall be charged to the Distribution Fund. No Restricted Payment may be made in other than cash or securities which are actively traded on a nationally recognized public market and have a readily ascertainable market value (which value shall be the amount of such Restricted Payment), unless assets received by the Company shall have received a report from an independent recognized appraiser as to since the fair value date of the property to be distributed or transferred, in which case the amount of such Restricted Payment shall be deemed to be the greater of its fair value (as determined by such appraiser) or its net book value on the books of the Company. Notwithstanding any of the foregoing provisions of this paragraph, neither the Company nor any Subsidiary or Affiliate shall make any Restricted Payment if at the time or after giving effect thereto, there shall exist any Default.this
Appears in 1 contract
Sources: Indenture (Asia Global Crossing LTD)
Restricted Payments. Neither the The Company nor shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly,
(i) declare or pay any dividend or make any distribution (including in connection with any merger or consolidation) on account of any Equity Interests of the Company or any of its Restricted Subsidiaries (other than dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company or dividends or distributions payable to the Company or any Wholly Owned Restricted Subsidiary of the Company);
(ii) purchase, redeem or otherwise acquire or retire for value any Equity Interests of the Company, any of its Restricted Subsidiaries or Affiliates shall any other Affiliate of the Company (other than any such Equity Interests owned by the Company or any Wholly Owned Restricted Subsidiary of the Company);
(iii) make any principal payment on, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness that is subordinated by its terms in right of pay- ment to the Notes or a Note Guarantee, except at the original final maturity thereof or in accordance with the scheduled mandatory redemption or repayment provisions set forth in the original documentation governing such Indebtedness (but not pursuant to any mandatory offer to repurchase upon the occurrence of any event); or
(iv) make any Restricted Payment or Investment (all such payments and other actions set aside any funds therefor forth in clauses (i) through (iv) above being collectively referred to as "RESTRICTED PAYMENTS"), unless, at the time of such Restricted Payment:
(A) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof;
(B) the Company would, at the time of such Restricted Payment and after giving PRO FORMA effect theretothereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 4.09; and
(C) such Restricted Payment, together with the aggregate of such all other Restricted Payments for all such purposes subsequent to made by the Closing Date would not exceed Company and its Restricted Subsidiaries from and after January 1, 1997 (excluding Restricted Payments permitted by clauses (ii), (iii), (v), (vi), (viii), (xi), (xii) and (xiii) of the next succeeding paragraph), is less than the sum of
(as in effect from time to time, hereinafter referred to as the "Distribution Fund") of (i1) 50% of the Company's Cumulative Combined Consolidated Net Income subsequent of the Company for the period (taken as one accounting period) from January 1, 1997 to December 31, 1991 so long as the end of the Company's Combined Tangible most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Worth Income for such period is greater than $31,051,000a deficit, minus 100% of such deficit); PLUS
(ii2) 100% of the aggregate of the net cash proceeds received by the Company from any and after January 1, 1997 from the issuance or and sale of capital shares its Qualified Capital Stock or from contributions to its common equity; PLUS
(3) 100% of the Company subsequent to the Closing Date, and (iii) the aggregate of the net cash proceeds received by the Company from any the issuance and sale from and after January 1, 1997 of any Indebtedness debt securities of the Company which has that have been converted into capital shares Equity Interests (other than Equity Interests (or convertible debt securities) sold to a Subsidiary of the Company subsequent and other than Disqualified Stock or debt securities that have been converted into Disqualified Stock); PLUS
(4) to the Closing Dateextent that any Restricted Investment that was made from and after January 1, 1997 is sold for cash or otherwise liquidated or repaid for cash, the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any); -58- PROVIDED that no cash proceeds received by the Company from the issue or sale of any Equity Interests issued by the Company will be counted in determining the amount available for Restricted Payments under this clause (C) to the extent such proceeds were used to purchase, redeem or otherwise acquire or retire for value any Equity Interests of the Company pursuant to clause (ii) of the next succeeding paragraph, to pay, purchase, redeem, defease or otherwise acquire or retire for value any subordinated Indebtedness pursuant to clause (iii) of the next succeeding paragraph, to repurchase, redeem or acquire any Equity Interests of the Company pursuant to clause (iv) of the next succeeding paragraph or to redeem Notes pursuant to Section 3.07(b). The foregoing provisions shall not prohibit any or all of the following (each and all of which constitutes an independent exception to the foregoing provisions and may occur in addition to any action permitted to occur under any other exception):
(i) the payment of any dividend within 60 days after the date of declaration thereof, if at such date of declaration such payment would have complied with the provisions of this Indenture;
(ii) the purchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company in exchange for, or out of the net cash proceeds of, the substantially concurrent issuance and sale (other than to a Subsidiary of the Company) of other 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 purchase, redemption or other acquisition or retirement shall be added excluded from clause (C) of the preceding paragraph;
(iii) the payment, purchase, redemption, defeasance or other acquisition or retirement for value of subordinated Indebtedness with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness or the substantially concurrent issuance and sale (other than to a Subsidiary of the Distribution Fund only after Company) of Equity Interests of the Company (other than Disqualified Stock); PROVIDED that the amount of any such conversion. Notwithstanding net cash proceeds that are utilized for any such purchase, redemption or other acquisition or retirement shall be excluded from clause (C) of the foregoingpreceding paragraph;
(iv) a Restricted Payment to fund the purchase, redemption or other acquisition or retirement for value of any Equity Interests of Holdings or the Company held by any member of management of Holdings, the Company or any of its Restricted Subsidiaries pursuant to any management equity subscription agreement or stock option agreement; PROVIDED that (A) the aggregate price paid for all such purchased, redeemed, acquired or retired Equity Interests shall not exceed $1.0 million in any twelve-month period PLUS the aggregate cash proceeds received by the Company during such twelve-month period from any reissuance of Equity Interests by Holdings or the Company to members of management of Holdings, the Company and its Restricted Subsidiaries (not to exceed in any event $3.0 million in any single twelve-month period), and (B) no Default or Event of Default has occurred and is continuing immediately after such transaction; PROVIDED that the amount in excess of $1.0 million (or $3.0 million, as the case may acquire be) expended for all such purchases, redemptions and other ac- quisitions and retirements of Equity Interests pursuant to this clause (iv) in any twelve-month period shall be excluded from clause (C) of the preceding paragraph;
(v) the payment of dividends (A) by a Restricted Subsidiary on any class of common stock of such Restricted Subsidiary if such dividend is paid PRO RATA to all holders of such class of common stock and (B) by a Guarantor on any class of preferred stock issued in compliance with Section 4.09;
(vi) the repurchase of any class of common stock of a Restricted Subsidiary of the Company if such repurchase is made PRO RATA with respect to such class of common stock;
(vii) the payment of dividends or the making of loans or advances by the Company to Holdings in order to permit the payment by Holdings of interest in respect of its own capital shares 7 1/4% convertible subordinated debentures due 2002;
(viii) payments pursuant to a tax sharing agreement between any one or more of the Company and its Subsidiaries, on the one hand, and any other Person with which the Company and/or such Subsidiaries are required or permitted to file a consolidated tax return or with which the Company and/or such Subsidiaries are part of a consolidated group for tax purposes, on the other hand, which payments by the Company and the Restricted Subsidiaries are not in excess of the tax liabilities that would have been payable by them on a stand-alone basis;
(ix) the payment of dividends or the making of loans or advances by the Company to Holdings so long as the proceeds thereof are promptly used by Holdings to pay operating expenses in the ordinary course of business (including, without limitation, professional fees and expenses) and other similar corporate overhead costs, expenses and expenditures, or to pay salaries or other compensation of employees who perform services for Holdings and the Company; PROVIDED that the aggregate amount of dividends, loans or advances paid pursuant to this clause (ix) shall not during any fiscal year of the Company exceed, when added to any licensing agreement payments made by the Company or any of its Subsidiaries to Holdings during such fiscal year, $1,500,000;
(x) Restricted Payments in an aggregate amount from not to exceed $15.0 million for the purpose described in the Offering Memorandum under "Description of Certain Indebtedness -- Indebtedness of Holdings -- 7 1/4% convertible subordinated debentures";
(xi) repurchases of Equity Interests deemed to occur upon the exercise of stock options if such Equity Interests represent a portion of the exercise price thereof;
(xii) purchases of 9 3/4% Notes, or payment of dividends or the making of loans or advances by the Company to Holdings in order to permit purchases by Holdings of its 11 1/8% senior discount notes due 2008, in each case to the extent required under the related indentures in connection with a Change of Control or an Asset Sale; PROVIDED that the Company has first complied with its obligations under Section 4.14 and Section 4.10 as applicable -60- (and in the case of Asset Sales, this clause (xii) shall be available only to the extent of Excess Proceeds remaining after the Closing date Company has purchased all Notes properly tendered in an Asset Sale Offer); and
(xiii) purchases of up to $20.0 million aggregate principal amount of 9 3/4% Notes on or prior to the Issue Date. The Board of Directors may designate any Restricted Subsidiary, or any newly acquired or created Subsidiary, to be an Unrestricted Subsidiary if such designation would not cause a Default. For purposes of making such designation, all outstanding Investments by the Company and its Restricted Subsidiaries (except to the extent repaid in cash) in the Subsidiary so designated, and all Investments by the Company and its Restricted Subsidiaries to be made in connection with such acquisition or creation, will be deemed to be Restricted Payments at the time of such designation and shall reduce the amount available for Restricted Payments under the first paragraph of this Section 4.07. All such outstanding Investments shall be deemed to constitute Restricted Investments in an amount equal to the greater of (xi) the sum net book value of (i) 25% such Investments at the time of the Cumulative Combined Net Income of the Company subsequent to December 31, 1991, plus such designation and (ii) $500,000, or (y) the amount then available under the Distribution Fund, which amount shall be charged to the Distribution Fund. No Restricted Payment may be made in other than cash or securities which are actively traded on a nationally recognized public market and have a readily ascertainable market value (which value shall be the amount Fair Market Value of such Investments at the time of such designation. Such designation shall only be permitted if such Restricted Investment would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. Not later than the date of making any Restricted Payment), unless the Company shall have received a report from an independent recognized appraiser as deliver to the fair value of the property to be distributed or transferred, in which case the amount of 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, which calculations shall be deemed to be the greater of its fair value (as determined by such appraiser) or its net book value on the books of based upon the Company. Notwithstanding any of the foregoing provisions of this paragraph, neither the Company nor any Subsidiary or Affiliate shall make any Restricted Payment if at the time or after giving effect thereto, there shall exist any Default's latest available financial statements.
Appears in 1 contract
Restricted Payments. Neither The Company shall not, and the Company nor shall not permit any of its Subsidiaries to, directly or Affiliates shall indirectly, (i) redeem, defease, repurchase, repay or make any Restricted Payment payments in respect of, by the payment of cash or set aside cash equivalents (in whole or in part, whether by way of open market purchases, tender offers, private transactions or otherwise), all or any funds therefor unlessportion of any Permitted Indebtedness (other than the Senior Indebtedness), whether by way of payment in respect of principal of (or premium, if any) or interest on, such Permitted Indebtedness (as defined in the Notes) if at the time such payment is due or is otherwise made or, after giving effect theretoto such payment, an event constituting, or that with the aggregate passage of such Restricted Payments for all such purposes subsequent to the Closing Date time and without being cured would not exceed the sum (as in effect from time to timeconstitute, hereinafter referred to as the "Distribution Fund") an Event of (i) 50% of the Company's Cumulative Combined Net Income subsequent to December 31, 1991 so long as the Company's Combined Tangible Net Worth Default has occurred and is greater than $31,051,000continuing, (ii) declare or pay any cash dividend or distribution on the aggregate of the net cash proceeds received by the Company from any issuance or sale of capital shares of the Company subsequent to the Closing DateCommon Stock, and (iii) redeem, repurchase or otherwise acquire or retire for value any shares of Common Stock (iv) pay any settlement on account of litigation pending against the aggregate Company or to satisfy any judgment entered against the Company or (v) make payments on account of the net Senior Indebtedness, excluding any payment or portion thereof required to be paid in cash proceeds received by in accordance with the terms of the Senior Indebtedness; provided, however, that if the Company from any issuance of any Indebtedness consummates the Reverse Stock Split, the Company may use up to $350,000 of the Company which has been converted into capital shares proceeds of the Company subsequent Notes to pay in cash the Closing Date, which amount shall be added to first amortization payment due under the Distribution Fund only Senior Indebtedness after such conversionthe Reverse Stock Split. Notwithstanding the foregoing, the Company may acquire its own capital shares shall be permitted to use the proceeds from the sale of the Notes for an aggregate amount from and after the Closing date equal payments made pursuant to the greater of (x) the sum of (i) 25% of the Cumulative Combined Net Income of Settlement Agreement and Release dated May 9, 2006, between CombineNet, Inc. and the Company subsequent to December 31, 1991, plus (iiand for the payment described on Schedule 4(d) $500,000, or (y) the amount then available under the Distribution Fund, which amount shall be charged to the Distribution Fund. No Restricted Payment may be made in other than cash or securities which are actively traded on a nationally recognized public market and have a readily ascertainable market value (which value shall be the amount of such Restricted Payment), unless the Company shall have received a report from an independent recognized appraiser as to the fair value of the property to be distributed or transferred, in which case the amount of such Restricted Payment shall be deemed to be the greater of its fair value (as determined by such appraiser) or its net book value on the books of the Company. Notwithstanding any of the foregoing provisions of this paragraph, neither the Company nor any Subsidiary or Affiliate shall make any Restricted Payment if at the time or after giving effect thereto, there shall exist any DefaultNote Purchase Agreement.
Appears in 1 contract
Restricted Payments. Neither the The Company nor will not, and will not permit any of its Restricted Subsidiaries to, directly or Affiliates shall indirectly:
(1) declare or pay any dividend or make any other payment or distribution on account of the Company's Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company or any of its Restricted Subsidiaries) or to the direct or indirect holders of the Company's or any of its Restricted Subsidiaries' Equity Interests in their capacity as such (other than dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company);
(2) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company;
(3) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness that is subordinated to the Notes or the Subsidiary Guarantees, except a payment of interest or principal at the Stated Maturity thereof; or
(4) make any Restricted Payment or Investment (all such payments and other actions set aside any funds therefor forth in these clauses (1) through (4) above being collectively referred to as "Restricted Payments"), unless, at the time of and after giving effect thereto, the aggregate to such Restricted Payment:
(1) no Default or Event of Default has occurred and is continuing or would occur as a consequence of such Restricted Payments for all Payment; and
(2) the Company would, at the time of such purposes subsequent Restricted Payment after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Closing Date would not exceed Fixed Charge Coverage Ratio test set forth in the sum first paragraph of Section 4.09; and
(as in effect from time to time3) such Restricted Payment, hereinafter referred to as together with the "Distribution Fund"aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after the date of this Indenture (excluding Restricted Payments permitted by clauses (2) through (10) inclusive, of the next succeeding paragraph), is less than the sum, without duplication, of:
(ia) 50% of the Company's Cumulative Combined Consolidated Net Income subsequent of the Company for the period (taken as one accounting period) from the beginning of the first fiscal quarter commencing after the date of this Indenture to December 31, 1991 so long as the end of the Company's Combined Tangible most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Worth Income for such period is greater than $31,051,000a deficit, less 100% of such deficit), PLUS
(iib) 100% of the aggregate of the net cash proceeds received by the Company since the date of this Indenture as a contribution to its common equity capital or from any issuance the issue or sale of capital shares Equity Interests of the Company subsequent (other than Disqualified Stock and other than Equity Interests sold to members of management) or from the issue or sale of convertible or exchangeable Disqualified Stock or convertible or exchangeable debt securities of the Company that have been converted into or exchanged for such Equity Interests (other than Equity Interests (or Disqualified Stock or debt securities) sold to a Subsidiary of the Company), PLUS
(c) to the Closing Dateextent that any Restricted Investment that was made after the date of this Indenture is sold for cash or otherwise liquidated or repaid for cash, the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any), PLUS
(d) if any Unrestricted Subsidiary (i) is redesignated as a Restricted Subsidiary, the fair market value of such redesignated Subsidiary (as determined in good faith by the Board of Directors) as of the date of its redesignation or (ii) pays any cash dividends or cash distributions to the Company or any of its Restricted Subsidiaries, 100% of any such cash dividends or cash distributions made after the date of this Indenture. The preceding provisions will not prohibit:
(1) so long as no Default has occurred and is continuing or would be caused thereby, the payment of any dividend within 60 days after the date of declaration of the dividend, if at the date of declaration the dividend payment would have complied with the provisions of this Indenture;
(iii2) so long as no Default has occurred and is continuing or would be caused thereby, the redemption, repurchase, retirement, defeasance or other acquisition of any subordinated Indebtedness of the Company or any Restricted Subsidiary or of any Equity Interests of the Company in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Restricted Subsidiary of the Company) of, Equity Interests of the Company (other than 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 will be excluded from clause (3)(b) of the preceding paragraph;
(3) 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;
(4) the payment of any dividend by a Restricted Subsidiary of the Company to the holders of its Equity Interests on a pro rata basis; and
(5) so long as no Default has occurred and is continuing or would be caused thereby, the repurchase, redemption or other acquisition or retirement for value of (including any disbursements to Holdings for such purpose) any Equity Interests of Holdings, the Company or any Restricted Subsidiary of the Company held by any member or former member of Holdings, the Company's (or any of its Restricted Subsidiaries') management pursuant to any equity subscription agreement, stock option agreement or similar agreement; PROVIDED that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall not exceed (a) $1.0 million in any calendar year (with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to clause (b)) of $2.0 million in any calendar year), PLUS (b) the aggregate of the net cash proceeds received by the Company and its Restricted Subsidiaries from any issuance or reissuance of Equity Interests to members of management and the proceeds of any "key man" life insurance policies in any calendar year; PROVIDED, FURTHER that the cancellation of Indebtedness of owing to the Company which has been converted into capital shares or its Restricted Subsidiaries from members of the Company subsequent to the Closing Date, which amount shall be added to the Distribution Fund only after management in connection with such conversion. Notwithstanding the foregoing, the Company may acquire its own capital shares for an aggregate amount from and after the Closing date equal to the greater repurchase of (x) the sum of (i) 25% of the Cumulative Combined Net Income of the Company subsequent to December 31, 1991, plus (ii) $500,000, or (y) the amount then available under the Distribution Fund, which amount shall be charged to the Distribution Fund. No Restricted Payment may be made in other than cash or securities which are actively traded on a nationally recognized public market and have a readily ascertainable market value (which value shall be the amount of such Restricted Payment), unless the Company shall have received a report from an independent recognized appraiser as to the fair value of the property to be distributed or transferred, in which case the amount of such Restricted Payment shall Equity Interests will not be deemed to be the greater a Restricted Payment;
(6) distributions or payments to Holdings in amounts necessary to permit Holdings to satisfy income tax obligations of Holdings that are actually due and owing and are attributable to its fair value (as determined by such appraiser) or its net book value on the books ownership of the Company. Notwithstanding , PROVIDED that such amounts do not exceed the amount that would otherwise be due and owing if the Company and its Restricted Subsidiaries filed separate tax returns, PROVIDED HOWEVER, that (1) notwithstanding the foregoing, in the case of determining the amount payable by the Company to Holdings for income tax obligations, such payment shall not exceed an amount determined on the basis of assuming that the Company is the parent company of an affiliated group filing a consolidated federal income tax return and that Holdings and the Restricted Subsidiaries are members of such affiliated group and (2) any payments for income tax obligations shall either be used by Holdings to pay tax liabilities within 90 days of Holding's receipt of such payment or refunded to the Company and (b) to Holdings to pay the necessary fees and expenses to maintain its corporate existence and good standing and, so long as no Default has occurred and is continuing, other general and administrative expenses (which amounts in the aggregate shall not exceed $500,000 per year);
(7) so long as no Default has occurred and is continuing, the declaration and payment of dividends on Disqualified Stock, that was issued in compliance with this Indenture;
(8) repurchases of Equity Interests deemed to occur upon the exercise of stock options to the extent such Equity Interests represent a portion of the foregoing provisions exercise price thereof;
(9) purchases of fractional Equity Interests of the Company, or distributions to Holdings to permit it to purchase fractional Equity Interests of Holdings, for aggregate consideration not to exceed $100,000 since the date of this paragraph, neither the Company nor any Subsidiary or Affiliate shall make any Restricted Payment if at the time or after giving effect thereto, there shall exist any Default.Indenture; and
Appears in 1 contract
Sources: Indenture (H&e Finance Corp)
Restricted Payments. Neither the The Company nor will not, and will not permit any of its Subsidiaries to, directly or Affiliates shall indirectly: (i) declare or pay any dividend or make any other payment or distribution on account of the Equity Interests of the Company or any of its Subsidiaries (including, without limitation, any payment in connection with any merger or consolidation involving the Company or any of its Subsidiaries) or to the direct or indirect holders of the Equity Interests of the Company or any of its Subsidiaries in their capacity as such (other than dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company, dividends or distributions payable to the Company or any Subsidiary of the Company or dividends or distributions made by a Subsidiary of the Company to all holders of its Common Stock on a pro rata basis); (ii) purchase, redeem or otherwise acquire or retire for value any Equity Interests of the Company, any Subsidiary of the Company or any direct or indirect parent of the Company, (other than any such Equity Interests owned by the Company or any Subsidiary of the Company); (iii) make any payment on or in respect of, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness that is pari passu with or subordinated to the Notes, except at Stated Maturity or (iv) make any Restricted Payment or Investment (all such payments and other actions set aside any funds therefor forth in clauses (i) through (iv) above being collectively referred to as "Restricted Payments"), unless, at the time of and after giving effect theretoto such Restricted Payment:
(a) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof; and
(b) the Company would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 4.09 of this Indenture; and
(c) such Restricted Payment, together with the aggregate of such all other Restricted Payments made by the Company and its Subsidiaries after the date of this Indenture (excluding Restricted Payments permitted by clauses (v) and (w) of the next succeeding paragraph), is less than the sum of (i)50% of the Consolidated Net Income of the Company for all such purposes subsequent the period (taken as one accounting period) commencing ___________, ____ to the Closing Date would not exceed the sum (as in effect from time to time, hereinafter referred to as the "Distribution Fund") of (i) 50% end of the Company's Cumulative Combined most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income subsequent for such period is a deficit, less 100% of such deficit), plus (ii)100% of the aggregate net cash proceeds received and retained by the Company from the issue or sale since the date of this Indenture of Equity Interests of the Company or of debt securities of the Company that have been converted into such Equity Interests (other than Equity Interests (or convertible debt securities) sold to December 31a Subsidiary of the Company and other than Disqualified Stock or debt securities that have been converted into Disqualified Stock). The foregoing provisions will not prohibit (v) the payment of any dividend within 60 days after the date of declaration thereof, 1991 so long as if at said date of declaration such payment would have complied with the provisions of this Indenture; (w) the making of any Restricted Investment, or 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 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 Restricted Investment, redemption, repurchase, retirement or other acquisition shall be excluded from clause (c) (ii) of the preceding paragraph; (x) the defeasance, redemption or repurchase of pari passu or subordinated Indebtedness with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness or the substantially concurrent sale (other than to a Subsidiary of the Company) 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 redemption, repurchase, retirement or other acquisition shall be excluded from clause (c) (ii) of the preceding paragraph; (y) the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Subsidiary of the Company held by any member of the Company's Combined Tangible Net Worth is greater than $31,051,000, (iior any of its Subsidiaries') management pursuant to any management equity subscription agreement or stock option agreement in effect as of the date of this Indenture; provided that (A) the aggregate of price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall not exceed $_______ in any 12-month period plus the net aggregate cash proceeds received by the Company during such 12-month period from any issuance or sale reissuance of capital shares Equity Interests by the Company to members of management of the Company subsequent to the Closing Dateand its Subsidiaries, and (iiiB) no Default or Event of Default shall have occurred and be continuing immediately after such transaction; and (z) so long as no Default or Event of Default shall have occurred and be continuing, Investments in the same or similar lines of business as the Company was engaged in on the date of this Indenture in an aggregate amount not to exceed $___ million since the date of this Indenture (measured as of the net cash proceeds received date made and without giving effect to subsequent changes in value). Notwithstanding the above, no dividend or distribution shall be made on the Common Stock within the first year after the Offering. The amount of all Restricted Payments (other than cash) shall be the fair market value (evidenced by a resolution of the Board of Directors or a committee of the Board of Directors, a majority of which committee consists of Independent directors, set forth in an Officers' Certificate delivered to the Trustee) on the date of the Restricted Payment of the asset(s) proposed to be transferred by the Company from any issuance of any Indebtedness of or such Subsidiary, as the Company which has been converted into capital shares of the Company subsequent case may be, pursuant to the Closing Date, which amount shall be added to Restricted Payment. Not later than the Distribution Fund only after such conversion. Notwithstanding the foregoingdate of making any Restricted Payment, the Company may acquire its own capital shares for an aggregate amount from and after the Closing date equal shall deliver to the greater of (x) the sum of (i) 25% of the Cumulative Combined Net Income of the Company subsequent to December 31, 1991, plus (ii) $500,000, or (y) the amount then available under the Distribution Fund, which amount shall be charged to the Distribution Fund. No Restricted Payment may be made in other than cash or securities which are actively traded on a nationally recognized public market and have a readily ascertainable market value (which value shall be the amount of such Restricted Payment), unless the Company shall have received a report from Trustee an independent recognized appraiser as to the fair value of the property to be distributed or transferred, in which case the amount of Officers' Certificate stating that such Restricted Payment shall is permitted and setting forth the basis upon which the calculations required by this Section 4.07 were computed, which calculations may be deemed to be the greater of its fair value (as determined by such appraiser) or its net book value on the books of based upon the Company. Notwithstanding any of the foregoing provisions of this paragraph, neither the Company nor any Subsidiary or Affiliate shall make any Restricted Payment if at the time or after giving effect thereto, there shall exist any Default's latest available financial statements.
Appears in 1 contract
Sources: Indenture (Shop at Home Inc /Tn/)
Restricted Payments. Neither the The Company nor shall not and shall not permit any of its Restricted Subsidiaries to, directly or Affiliates shall indirectly: (i) declare or pay any dividend or make any other payment or distribution on account of the Company’s Equity Interests (including, without limitation, any payment to holders of the Company’s Equity Interests in connection with any merger or consolidation involving the Company) or to the direct or indirect holders of the Company’s Equity Interests in their capacity as such (other than dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company); (ii) purchase, redeem or otherwise acquire or retire for value any Equity Interests of the Company; (iii) make any principal payment on, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness that is subordinated to the Securities, except at final maturity; or (iv) make any Restricted Payment or Investment (all such payments and other actions set aside any funds therefor forth in clauses (i) through (iv) above being collectively referred to as “Restricted Payments”), unless, at the time of and after giving effect theretoto such Restricted Payment:
(a) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof; and
(b) the Company would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 4.09 hereof; and
(c) such Restricted Payment, together with the aggregate of such all other Restricted Payments for all such purposes subsequent to made by the Closing Date would not exceed Company and its Restricted Subsidiaries after the date of this Indenture (excluding Restricted Payments permitted by clauses (2), (3), (5) and (6) of the next succeeding paragraph), is less than the sum (as in effect from time to time, hereinafter referred to as the "Distribution Fund") of (i) the dollar amount calculated as of the date of this Indenture under Section 4.07(c) of that certain Indenture dated July 21, 2003 among the Company, the Subsidiary Guarantors and J.▇. ▇▇▇▇▇▇ Trust Company, National Association as successor trustee to Bank One, National Association, plus (ii) 50% of the Company's Cumulative Combined Consolidated Net Income subsequent of the Company for the period (taken as one accounting period) from the beginning of the first fiscal quarter commencing prior to December 31, 1991 so long as the date of this Indenture to the end of the Company's Combined Tangible ’s most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Worth Income for such period is greater than $31,051,000a deficit, less 100% of such deficit), plus (iiiii) 100% of the aggregate of the net cash proceeds received by the Company from any issuance the issue and sale since the date of this Indenture of Equity Interests in the Company or sale of capital shares debt securities of the Company subsequent that have been converted into or exchanged for such Equity Interests (other than Equity Interests (or convertible debt securities) sold to the Closing Date, and (iii) the aggregate a Subsidiary of the Company and other than Disqualified Stock or debt securities that have been converted into Disqualified Stock), plus (iv) 100% of the amount of net cash proceeds received by the Company or a Restricted Subsidiary from any issuance the sale within 12 months of the related acquisition of any Indebtedness of the following that are acquired after the date of the Indenture in exchange for Equity Interests of the Company which has been converted into capital shares (other than Disqualified Stock and other than Capital Stock issued to a Subsidiary of the Company subsequent to Company): (A) any property or assets (other than Indebtedness and Capital Stock); (B) the Closing Date, which amount shall be added to Capital Stock of a Person that becomes a Restricted Subsidiary as a result of the Distribution Fund only after acquisition of such conversion. Notwithstanding the foregoing, Capital Stock by the Company may acquire its own capital shares for an aggregate amount from and after the Closing date equal to the greater of or another Restricted Subsidiary; or (xC) the sum of (i) 25% of the Cumulative Combined Net Income of the Company subsequent to December 31, 1991Capital Stock constituting a minority interest in any Person that at such time is a Restricted Subsidiary, plus (iiv) $500,000to the extent that any Restricted Investment that was made after the date of this Indenture is sold for cash or otherwise liquidated or repaid for cash, or the lesser of (yA) the amount then available under net proceeds of such sale, liquidation or repayment and (B) the Distribution Fund, which amount shall be charged to the Distribution Fund. No Restricted Payment may be made in other than cash or securities which are actively traded on a nationally recognized public market and have a readily ascertainable market value (which value shall be the initial amount of such Restricted Investment. The foregoing provisions shall not prohibit (1) 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; (2) 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 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) (iii) or (c)(iv) of the preceding paragraph; (3) the defeasance, redemption or repurchase of Subordinated Indebtedness with the net cash proceeds from an incurrence of Permitted Refinancing Debt or the substantially concurrent sale (other than to a Subsidiary of the Company) 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 redemption, repurchase, retirement or other acquisition shall be excluded from clause (c) (iii) or (c)(iv) of the preceding paragraph; (4) the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Subsidiary of the Company held by any of the Company’s (or any of its Subsidiaries’) employees pursuant to any equity subscription agreement or stock option agreement in effect as of the date of this 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; and provided further that no Default or Event of Default shall have occurred and be continuing immediately after such transaction; (5) 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; and (6) cash payments made by the Company for the repurchase, redemption or other acquisition or retirement of the Company’s 73/8% Senior Subordinated Notes due 2013 or 63/8% Senior Subordinated Notes due 2015. The amount of all Restricted Payments (other than cash) shall be the fair market value (as determined in good faith by a resolution of the Board of Directors of the Company set forth in an Officers’ Certificate delivered to the Trustee, which determination shall be conclusive evidence of compliance with this provision) on the date of the Restricted Payment of the asset(s) proposed to be transferred by the Company or the applicable Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment). Not later than five days after the date of making any Restricted Payment, unless the Company shall have received a report from an independent recognized appraiser as deliver to the fair value 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. In computing Consolidated Net Income for purposes of this Section 4.07, (i) the Company shall use audited financial statements for the portion of the property relevant period for which audited financial statements are available on the date of determination and unaudited financial statements and other current financial data based on the books and records of the Company for the remaining portion of such period and (ii) the Company shall be permitted to rely in good faith on the financial statements and other financial data derived from the books and records of the Company that are available on the date of determination. If the Company makes a Restricted Payment which, at the time of the making of such Restricted Payment, would on the good faith determination of the Company be distributed or transferredpermitted under the requirements of this Indenture, in which case the amount of such Restricted Payment shall be deemed to have been made in compliance with this Indenture notwithstanding any subsequent adjustments made in good faith to the Company’s financial statements affecting Consolidated Net Income of the Company for any period. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default. For purposes of making such determination, all outstanding Investments by the Company and its Restricted Subsidiaries (except to the extent repaid in cash) in the Subsidiary so designated shall be deemed to be a Restricted Investment or, if applicable, a Permitted Investment at the time of such designation and must comply with this Section 4.07. All such outstanding Investments shall be deemed to constitute Investments in an amount equal to the greater of its the fair market value (as determined by such appraiser) or its net the book value on the books of the Company. Notwithstanding any of the foregoing provisions of this paragraph, neither the Company nor any Subsidiary or Affiliate shall make any Restricted Payment if such Investments at the time or after giving effect thereto, there of such designation. Such designation shall exist any Defaultonly 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.
Appears in 1 contract
Sources: Indenture (Range Energy I Inc)
Restricted Payments. Neither the The Company nor shall not, and shall not cause or permit any of its Restricted Subsidiaries to, directly or Affiliates shall indirectly: (i) declare or pay any dividend or make any other payment or distribution(s) on shares of the Company's Capital Stock to holders of such Capital Stock (other than dividends or distributions payable solely in shares of Capital Stock (other than Disqualified Capital Stock)), (ii) purchase, redeem or otherwise acquire or retire for value any Capital Stock of the Company, (iii) make any principal payment on, or purchase, defease, redeem, or otherwise acquire or retire for value any Indebtedness of the Company that is subordinate in right of payment to the Notes, or (iv) make any Investment (other than Permitted Investments) (each of the foregoing prohibited actions set forth in clauses (i), (ii), (iii) and (iv) being referred to as a "RESTRICTED PAYMENT"), if at the time of such proposed Restricted Payment or set aside any funds therefor unless, immediately after giving effect thereto, (a) a Default or an Event of Default has occurred and is continuing or would result therefrom, or (b) the Company is not, or would not be, able to incur at least $1.00 of additional Indebtedness under the Debt to Cash Flow Ratio test or (c) the aggregate amount of such Restricted Payments for all such purposes made subsequent to the Closing Issue Date (excluding Restricted Payments permitted by clauses (w) and (x) below) exceeds or would not exceed the sum of: (as in effect from time to time, hereinafter referred to as the "Distribution Fund") of (i) 50% of the Company's Cumulative Combined Net Income subsequent to December 31, 1991 so long as the Company's Combined Tangible Net Worth is greater than $31,051,000, (ii1) the aggregate of difference between (A) the net cash proceeds received by the Company from any issuance or sale of capital shares cumulative Consolidated EBITDA of the Company subsequent to the Closing Date, and (iii) the aggregate as of the net cash proceeds received by the Company from any issuance of any Indebtedness of the Company which has been converted into capital shares of the Company subsequent to the Closing Date, which amount shall be added to the Distribution Fund only after such conversion. Notwithstanding the foregoing, the Company may acquire its own capital shares for an aggregate amount from and after the Closing date equal to the greater of (x) the sum of (i) 25% of the Cumulative Combined Net Income of the Company subsequent to December 31, 1991, plus (ii) $500,000, or (y) the amount then available under the Distribution Fund, which amount shall be charged to the Distribution Fund. No Restricted Payment may be made in other than cash or securities which are actively traded on a nationally recognized public market and have a readily ascertainable market value (which value shall be the amount of such Restricted Payment), unless the Company shall have received a report from an independent recognized appraiser as to the fair value of the property to be distributed or transferred, in which case the amount of such Restricted Payment shall be deemed to be since the greater Issue Date, minus (B) the product of its fair value (as determined by such appraiser) or its net book value on the books 1.75 times cumulative Consolidated Interest Expense of the Company. Notwithstanding any Company as of the foregoing provisions date of this paragraph, neither the Company nor any Subsidiary or Affiliate shall make any such Restricted Payment if at since the time or after giving effect theretoIssue Date, there shall exist any Default.PLUS (2) 100% of the aggregate net proceeds
Appears in 1 contract
Sources: Indenture (Coinstar Inc)
Restricted Payments. Neither the Company nor any of its Subsidiaries Declare or Affiliates shall make make, directly or indirectly, any Restricted Payment Payment, or set aside incur any funds therefor unlessobligation (contingent or otherwise) to do so, after giving effect thereto, except that the aggregate of such Restricted Payments for all such purposes subsequent to the Closing Date would not exceed the sum following shall be permitted:
(as in effect from time to time, hereinafter referred to as the "Distribution Fund"a) of (i) 50% prior to the formation of the Company's Cumulative Combined Net Income subsequent Operating Partnership, each Subsidiary of the REIT may make Restricted Payments to December 31the Borrowers and the Guarantors and (ii) on and after the formation of the Operating Partnership, 1991 each Subsidiary of the REIT may make Restricted Payments to the Borrowers (other than the REIT) and the Guarantors;
(b) the REIT and each Subsidiary thereof may declare and make dividend payments or other distributions payable solely in the common stock or other common Equity Interests of such Person;
(c) the REIT and each Subsidiary thereof, in addition to distributions permitted by Section 7.06(f), may purchase, redeem or otherwise acquire Equity Interests issued by it with the proceeds received from the substantially concurrent issue of new shares of its common stock or other common Equity Interests;
(d) (i) prior to the formation of the Operating Partnership, so long as the Company's Combined Tangible Net Worth is greater than $31,051,000no Event of Default under Section 8.01(a), (iif) or (g) shall have occurred and be continuing or would result therefrom, the aggregate REIT shall be permitted to declare and pay dividends on its Equity Interests or make distributions with respect thereto in an amount for any fiscal year of the net cash proceeds received by the Company from any issuance or sale of capital shares of the Company subsequent to the Closing Date, and (iii) the aggregate of the net cash proceeds received by the Company from any issuance of any Indebtedness of the Company which has been converted into capital shares of the Company subsequent to the Closing Date, which amount shall be added to the Distribution Fund only after such conversion. Notwithstanding the foregoing, the Company may acquire its own capital shares for an aggregate amount from and after the Closing date REIT equal to the greater of (x) the sum of (i) 2595% of the Cumulative Combined aggregate cumulative Adjusted Net Income of the Company subsequent REIT for such fiscal year and (y) such amount as may be required to December 31, 1991, plus eliminate 110% of the REIT’s taxable income as a real estate investment trust or such other amount as is necessary for the REIT to maintain its status as a real estate investment trust under the Code and (ii) $500,000on and after the formation of the Operating Partnership, so long as no Event of Default under Section 8.01(a), (f) or (g) shall have occurred and be continuing or would result therefrom, the Operating Partnership shall be permitted to declare and pay dividends on its Equity Interests or make distributions with respect thereto in an amount for any fiscal year of the REIT equal to the greater of (x) 95% of the aggregate cumulative Adjusted Net Income of the REIT for such fiscal year and (y) such amount that will result in the amount then available under REIT receiving the Distribution Fund, which amount shall be charged to the Distribution Fund. No Restricted Payment may be made in other than cash or securities which are actively traded on a nationally recognized public market and have a readily ascertainable market value (which value shall be the necessary amount of such Restricted Payment), unless the Company shall have received a report from an independent recognized appraiser as to the fair value of the property funds required to be distributed to its equityholders in order for the REIT to (A) eliminate 110% of its taxable income as a real estate investment trust or transferred(B) maintain its status as a real estate investment trust under the Code;
(e) so long as no Event of Default under Section 8.01(a), (f) or (g) shall have occurred and be continuing or would result therefrom, the REIT shall be permitted to declare and pay dividends on its Equity Interests in which case an amount equal to, or make distributions to the amount holders of its Equity Interests of, any amounts received by the REIT pursuant to Section 7.06(d)(ii);
(f) the REIT may make (and following the formation of the Operating Partnership in compliance with Section 7.13(iii), the Operating Partnership may make distributions to the REIT to enable the REIT to make) Restricted Payments constituting purchases or redemptions by the REIT of shares of its common stock, but only to the extent that immediately after giving effect to each such Restricted Payment (i) no Default or Event of Default is then continuing or shall occur, (ii) the Borrowers shall be deemed in compliance with the financial covenants set forth in Section 7.12 on a pro forma basis (calculated as if such Restricted Payment was made on the last day of the fiscal quarter most recently ended for which financial statements have been delivered to be the greater of its fair value (as determined by such appraiserAdministrative Agent and the Lenders pursuant to Section 6.01(a) or its net book value (b)) and (iii) the aggregate amount of Restricted Payments made in reliance on this clause (f), together with the books aggregate amount of any Restricted Payments made prior to the Restatement Effective Date in reliance on Section 7.05(e) of the Company. Notwithstanding any Original Credit Agreement, does not exceed $50,000,000; and
(g) Restricted Payments that result from cashless exercises of options or warrants with respect to Equity Interests of the foregoing provisions of this paragraph, neither the Company nor any Subsidiary or Affiliate shall make any Restricted Payment if at the time or after giving effect thereto, there shall exist any DefaultREIT.
Appears in 1 contract
Restricted Payments. Neither the The Company nor shall not, and shall not permit any of its Restricted Subsidiaries to, directly or Affiliates shall indirectly: (i) declare or pay any dividend or make any other payment or distribution on account of any Equity Interests of the Company (including, without limitation, any payment in connection with any merger or consolidation involving the Company) or to the direct or indirect holders of any Equity Interests of the Company in their capacity as such (other than dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company); (ii) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or any direct or indirect parent of the Company; (iii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness that is subordinated to the Notes, except a payment of interest or principal at Stated Maturity; or (iv) make any Restricted Payment or Investment (all such payments and other actions set aside any funds therefor forth in clauses (i) through (iv) above being collectively referred to as "Restricted Payments"), unless, at the time of and after giving effect theretoto such Restricted Payment:
(a) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof; and
(b) the Company would, at the aggregate time of such Restricted Payments for all Payment and after giving pro forma effect thereto as if such purposes subsequent Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Closing Debt to Cash Flow test set forth in the first paragraph of Section 4.09 hereof; and
(c) such Restricted Payment, together with the aggregate amount of all other Restricted Payments declared or made after the Issue Date would not exceed the sum (as in effect from time to time, hereinafter referred to as the "Distribution Fund"excluding Restricted Payments permitted by clauses (ii) and (iii) of the next succeeding paragraph) shall not exceed, at the date of determination, the sum, without duplication, of (iA) 50% an amount equal to the Company's Consolidated Cash Flow for the period (taken as one accounting period) from the beginning of the first fiscal quarter commencing after June 30, 1999 to the end of the Company's Cumulative Combined Net Income subsequent to December 31, 1991 so long as most recently ended full fiscal quarter for which financial statements have been filed with the SEC (the "Basket Period") less the product of 1.4 times the Company's Combined Tangible Net Worth is greater than $31,051,000Consolidated Interest Expense for the Basket Period, plus (iiB) 100% of the aggregate of the net cash proceeds received by the Company after June 30, 1999 as a contribution to its common equity capital or from any issuance the issue or sale of capital shares Equity Interests of the Company subsequent (other than Disqualified Stock) or from the issue or sale after June 30, 1999 of Disqualified Stock or debt securities of the Company that have been converted into Equity Interests (other than (x) Equity Interests, Disqualified Stock or convertible debt securities sold to a Subsidiary of the Company and (y) any sale of Equity Interests of the Company the net cash proceeds of which are applied pursuant to clause (ii) of the immediately succeeding paragraph), plus (C) to the Closing extent that any Restricted Investment that was made after the Issue Date is sold for cash or otherwise liquidated or repaid for cash, the lesser of (x) the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any) and (y) the initial amount of such Restricted Investment, plus (D) to the extent that any Unrestricted Subsidiary is redesignated as a Restricted Subsidiary after the Issue Date, and the fair market value of the Company's or its Restricted Subsidiary's, as the case may be, Investment in such Subsidiary as of the date of such redesignation. The preceding provisions shall not prohibit: (iiii) the aggregate payment of any dividend within 60 days after the date of declaration thereof, if at the date of declaration the 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 in exchange for, or out of the net cash proceeds received of the substantially concurrent sale (other than to a Subsidiary of the Company) 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 redemption, repurchase, retirement, defeasance or other acquisition shall be excluded from clause (c)(B) of the preceding paragraph; (iii) 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 shall have occurred and be continuing (or would result therefrom), the purchase, redemption, retirement or other acquisition by the Company from or any issuance of any Indebtedness Restricted Subsidiary of the Company which has been converted into capital of partnership interests held by the partners in the limited partners of the Co-Venture Partnerships, the co-general partner of the Co-Venture Partnerships or, in each case, their successors, in accordance with and in the manner required or permitted by the terms of the Partnership Parks Agreements; (v) so long as no Default or Event of Default shall have occurred and be continuing (or would result therefrom), any transactions pursuant to or contemplated by, and payments made in connection with, and in accordance with the terms of, the Partnership Parks Agreements and the Marine World Agreements; (vi) so long as no Default or Event of Default shall have occurred and be continuing (or would result therefrom), any transactions pursuant to or contemplated by, and payments made in connection with, and in accordance with the terms of, the Subordinated Indemnity Agreement; (vii) in the event the Company issues common stock in exchange for or upon conversion of PIERS (or Convertible Preferred Stock underlying the PIERS), cash payments made in lieu of the issuance of fractional shares of common stock, not to exceed $500,000 in the aggregate in any fiscal year; (viii) the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company subsequent from employees, former employees, directors or former directors of the Company or any of its Restricted Subsidiaries (or permitted transferees of such employees, former employees, directors or former directors); PROVIDED, HOWEVER, that the aggregate amount of such repurchases shall not exceed $5.0 million in any twelve-month period; and (ix) so long as no Default or Event of Default shall have occurred and be continuing (or would result therefrom), the payment of dividends on the PIERS (or the underlying Convertible Preferred Stock) or the redemption of the then outstanding PIERS (or the underlying Convertible Preferred Stock) on August 15, 2009, in each case in accordance with the terms thereof as in effect on the date of this Indenture. The amount of all Restricted Payments (other than cash) shall be the fair market value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company or such Subsidiary, as the case may be, pursuant to the Closing Date, which amount Restricted Payment. The fair market value of any assets or securities that are required to be valued by this Section 4.07 shall be added determined by the Board of Directors of the Company whose resolution with respect thereto shall be delivered to the Distribution Fund only after Trustee. The Board of Directors' determination shall be based upon an opinion or appraisal issued by an accounting, appraisal or investment banking firm of national standing if such conversionfair market value exceeds $10.0 million. Notwithstanding Not later than the foregoingdate of making any Restricted Payment (other than any Restricted Payment permitted pursuant to clause (i) through (ix) of the immediately preceding paragraph), the Company may acquire its own capital shares for an aggregate amount from and after the Closing date equal shall deliver to the greater of (x) the sum of (i) 25% of the Cumulative Combined Net Income of the Company subsequent to December 31, 1991, plus (ii) $500,000, or (y) the amount then available under the Distribution Fund, which amount shall be charged to the Distribution Fund. No Restricted Payment may be made in other than cash or securities which are actively traded on a nationally recognized public market and have a readily ascertainable market value (which value shall be the amount of such Restricted Payment), unless the Company shall have received a report from Trustee an independent recognized appraiser as to the fair value of the property to be distributed or transferred, in which case the amount of Officers' Certificate stating that such Restricted Payment is permitted and setting forth the basis upon which the calculations required by this Section 4.07 were computed, together with a copy of any fairness opinion or appraisal required by this Indenture. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default; PROVIDED that in no event shall the business currently operated by Six Flags Operations Inc. or Six Flags Theme Parks Inc. be transferred to or held by any Unrestricted Subsidiary. If a Restricted Subsidiary is designated as an Unrestricted Subsidiary, all outstanding Investments owned by the Company and its Restricted Subsidiaries (except to the extent repaid in cash) in the Subsidiary so designated will be deemed to be the greater of its fair value (as determined by such appraiser) or its net book value on the books of the Company. Notwithstanding any of the foregoing provisions of this paragraph, neither the Company nor any Subsidiary or Affiliate shall make any Restricted Payment if Payments at the time or after giving effect thereto, there shall exist any Defaultof such designation and will reduce the amount available for Restricted Payments under the first paragraph of this Section 4.07. All such outstanding Investments will be valued at their fair market value at the time of such designation. That 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.
Appears in 1 contract
Sources: Indenture (Six Flags Inc)
Restricted Payments. Neither the The Company nor will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, (a) declare or pay any dividend or make any other payment or distribution on account of the Company's or any of its Restricted Subsidiaries' Equity Interests (other than dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company or dividends or distributions payable to the Company or any Wholly Owned Restricted Subsidiary of the Company); (b) purchase, redeem or otherwise acquire or retire for value any Equity Interests of the Company, any of its Restricted Subsidiaries or Affiliates shall any other Affiliate of the Company (other than any such Equity Interests owned by the Company or any Restricted Subsidiary of the Company); (c) make any principal payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value, any Indebtedness of the Company that is subordinated in right of payment to the Notes, except in accordance with the mandatory redemption or repayment provisions set forth in the original documentation governing such Indebtedness (but not pursuant to any mandatory offer to repurchase upon the occurrence of any event); or (d) make any Restricted Payment or Investment (all such payments and other actions set aside any funds therefor forth in clauses (a) through (d) above being collectively referred to as "Restricted Payments"), unless, at the time of and after giving effect theretoto such Restricted Payment:
(i) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof; and
(ii) the Company would, immediately after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 4.09 hereof; and
(iii) such Restricted Payment, together with the aggregate amount of such all other Restricted Payments for all such purposes subsequent made by the Company and its Restricted Subsidiaries after the Original Issuance Date (excluding Restricted Payments permitted by clauses (a) (to the Closing Date would not exceed extent that the sum (as in effect from time to time, hereinafter declaration of any dividend referred to as the "Distribution Fund"therein reduces amounts available for Restricted Payments pursuant to this clause (iii)), (b) through (g), (i), (j), (m), (n) and (p) of the next succeeding paragraph), is less than the sum, without duplication, of (iA) 50% of the Company's Cumulative Combined Consolidated Net Income subsequent of the Company for the period (taken as one accounting period) commencing July 1, 1999 to December 31, 1991 so long as the end of the Company's Combined Tangible most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Worth Income for such period is greater a deficit, less 100% of such deficit), plus (B) 100% of the Qualified Proceeds received by the Company on or after the Original Issuance Date from contributions to the Company's capital or from the issue or sale on or after the Original Issuance Date of Equity Interests of the Company or of Disqualified Stock or convertible debt securities of the Company to the extent that they have been converted into such Equity Interests (other than $31,051,000Equity Interests, Disqualified Stock or convertible debt securities sold to a Subsidiary of the Company and other than Disqualified Stock or convertible debt securities that have been converted into Disqualified Stock), plus (C) the amount equal to the net reduction in Investments in Persons after the Original Issuance Date who are not Restricted Subsidiaries (other than Permitted Investments) resulting from (x) Qualified Proceeds received as a dividend, repayment of a loan or advance or other transfer of assets (valued at the fair market value thereof) to the Company or any Restricted Subsidiary from such Persons, (iiy) Qualified Proceeds received upon the sale or liquidation of such Investment and (z) the redesignation of Unrestricted Subsidiaries (excluding any increase in the amount available for Restricted Payments pursuant to clause (h) or (l) below arising from the redesignation of such Unrestricted Subsidiary) whose assets are used or useful in, or which is engaged in, one or more Permitted Business as Restricted Subsidiaries (valued (proportionate to the Company's equity interest in such Subsidiary) at the fair market value of the net assets of such Subsidiary at the time of such redesignation). The foregoing provisions will not prohibit:
(a) 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;
(b) the redemption, repurchase, retirement, defeasance or other acquisition of any subordinated Indebtedness or Equity Interests of the Company in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Subsidiary of the Company) of, other Equity Interests of the Company (other than any Disqualified 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 (iii)(B) of the preceding paragraph;
(c) the defeasance, redemption, repurchase, retirement or other acquisition of subordinated Indebtedness of the Company with the net cash proceeds from an incurrence of, or in exchange for, Permitted Refinancing Indebtedness;
(d) the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or held by any member of the Company's (or any of its Restricted Subsidiaries') management pursuant to any management equity subscription agreement or stock option agreement, provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall not exceed (x) $2.0 million in any calendar year (with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following clause (y)) of $4.0 million in any calendar year), plus (y) the aggregate of the net cash proceeds received by the Company during such calendar year from any issuance or sale reissuance of capital shares Equity Interests by the Company to members of management of the Company subsequent and its Restricted Subsidiaries (provided that the amount of any such net cash proceeds that are used to permit an acquisition or retirement for value pursuant to this clause (d) shall be excluded from clause (iii)(B) of the preceding paragraph) and (ii) no Default or Event of Default shall have occurred and be continuing immediately after such transaction;
(e) payments and transactions in connection with the Acquisition (including, without limitation, any purchase price adjustment or any other payments made pursuant to the Closing Acquisition Agreement or the Financial Advisory Agreements or the Termination Agreements), the Acquisition Financing, the Offering, the New Credit Facility (including, without limitation, commitment, syndication and arrangement fees payable thereunder) and the application of the proceeds thereof, and the payment of fees and expenses with respect thereto, provided, however, that the Qualified Proceeds of any offering of Equity Securities that results in an "IPO" incentive payment pursuant to the Acquisition Agreement shall be excluded from clause (iii)(B) of the preceding paragraph to the extent of the amount of such incentive payment;
(f) the payment of dividends by a Restricted Subsidiary on any class of common stock of such Restricted Subsidiary if (i) such dividend is paid pro rata to all holders of such class of common stock and (ii) at least 51% of such class of common stock is held by the Company or one or more of its Restricted Subsidiaries;
(g) the repurchase of any class of common stock of a Restricted Subsidiary if (i) such repurchase is made pro rata with respect to such class of common stock and (ii) at least 51% of such class of common stock is held by the Company or one or more of its Restricted Subsidiaries;
(h) any other Restricted Investment made in a Permitted Business which, together with all other Restricted Investments made pursuant to this clause (h) since the Original Issuance Date, and does not exceed $15.0 million (iiiin each case, after giving effect to all subsequent reductions in the amount of any Restricted Investment made pursuant to this clause (h), either as a result of (i) the aggregate repayment or disposition thereof for cash or (ii) the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary (valued proportionate to the Company's equity interest in such Subsidiary at the time of such redesignation) at the fair market value of the net cash assets of such Subsidiary at the time of such redesignation), in the case of clause (i) and (ii), not to exceed the amount of such Restricted Investment previously made pursuant to this clause (h); provided that no Default or Event of Default shall have occurred and be continuing immediately after making such Restricted Investment;
(i) the declaration and payment of dividends to holders of any class or series of Disqualified Stock of the Company or any Restricted Subsidiary issued on or after the Original Issuance Date in accordance with Section 4.09 hereof; provided that no Default or Event of Default shall have occurred and be continuing immediately after making such Restricted Payment;
(j) 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;
(k) the payment of dividends or distributions on the Company's common stock, following the first public offering of the Company's common stock after the Original Issuance Date, of up to 6.0% per annum of the net proceeds received by the Company from such public offering of its common stock or the net proceeds received by the Company from such public offering of its common stock as common equity other than with respect to public offerings with respect to the Company's common stock registered on Form S-8; provided that no Default or Event of Default shall have occurred and be continuing immediately after any issuance such payment of dividends or distributions;
(l) any other Restricted Payment which, together with all other Restricted Payments made pursuant to this clause (l) since the Original Issuance Date, does not exceed $1.0 million (in each case, after giving effect to all subsequent reductions in the amount of any Indebtedness Restricted Investment made pursuant to this clause (l) either as a result of (i) the repayment or disposition thereof for cash or (ii) the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary (valued proportionate to the Company's equity interest in such Subsidiary at the time of such redesignation) at the fair market value of the net assets of such Subsidiary at the time of such redesignation), in the case of clause (i) and (ii), not to exceed the amount of such Restricted Investment previously made pursuant to this clause (l); provided that no Default or Event of Default shall have occurred and be continuing immediately after making such Restricted Payment;
(m) the pledge by the Company of the Capital Stock of an Unrestricted Subsidiary of the Company which has been converted into capital shares to secure Non-Recourse Debt of such Unrestricted Subsidiary;
(n) the Company subsequent to purchase, redemption or other acquisition or retirement for value of any Equity Interests of any Restricted Subsidiary issued after the Closing Original Issuance Date, which amount provided that the aggregate price paid for any such repurchased, redeemed, acquired or retired Equity Interests shall be added to not exceed the Distribution Fund only after such conversion. Notwithstanding the foregoing, the Company may acquire its own capital shares for an aggregate amount from and after the Closing date equal to the greater sum of (x) the sum amount of cash and Cash Equivalents received by such Restricted Subsidiary from the issue or sale thereof and (y) any accrued dividends thereon the payment of which would be permitted pursuant to clause (i) 25% above;
(o) any Investment in an Unrestricted Subsidiary that is funded by Qualified Proceeds received by the Company on or after the Original Issuance Date from contributions to the Company's capital or from the issue and sale on or after the Original Issuance Date of the Cumulative Combined Net Income Equity Interests of the Company subsequent to December 31, 1991, plus (ii) $500,000, or (y) the amount then available under the Distribution Fund, which amount shall be charged of Disqualified Stock or convertible debt securities to the Distribution Fund. No Restricted Payment may be made in extent they have been converted into such Equity Interests (other than cash Equity Interests, Disqualified Stock or convertible debt securities which are actively traded on sold to a nationally recognized public market Subsidiary of the Company and other than Disqualified Stock or convertible debt securities that have a readily ascertainable market value been converted into Disqualified Stock) in an amount (which value shall be measured at the time such Investment is made and without giving effect to subsequent changes in value) that does not exceed the amount of such Qualified Proceeds (excluding any such Qualified Proceeds to the extent utilized to permit a prior "Restricted Payment), unless the Company shall have received a report from an independent recognized appraiser as " pursuant to the fair value clause (iii)(B) of the property to be distributed or transferred, in which case the amount of such Restricted Payment shall be deemed to be the greater of its fair value (as determined by such appraiser) or its net book value on the books of the Company. Notwithstanding any of the foregoing provisions of this preceding paragraph, neither the Company nor any Subsidiary or Affiliate shall make any Restricted Payment if at the time or after giving effect thereto, there shall exist any Default.); and
Appears in 1 contract
Sources: Indenture (Condor Systems Inc)
Restricted Payments. Neither the (a) The Company nor shall not make, and shall not permit any of its Subsidiaries Restricted Subsidiary to make, directly or Affiliates shall make indirectly, any Restricted Payment or set aside any funds therefor unlessif at the time of, and after giving effect theretoon a pro forma basis to, such proposed Restricted Payment,
(i) a Default or Event of Default shall have occurred and be continuing,
(ii) the Company could not Incur at least $1.00 of additional Debt pursuant to Section 4.09(a)(i), or
(iii) the aggregate amount of such Restricted Payment and all other Restricted Payments for all declared or made since the Issue Date (the amount of any Restricted Payment, if made other than in cash, to be equal to Fair Market Value at the time of such purposes subsequent Restricted Payment) would exceed an amount equal to the Closing Date would not exceed the sum of:
(as in effect from time to time, hereinafter referred to as the "Distribution Fund") of (iA) 50% of the Company's Cumulative Combined aggregate cumulative amount of Consolidated Net Income subsequent accrued during the period (treated as one accounting period) from the beginning of the fiscal quarter next succeeding the fiscal quarter in which the Issue Date occurs to December 31the end of the most recent fiscal quarter for which financial statements of the Company are publicly available (or if the aggregate amount of Consolidated Net Income for such period shall be a deficit, 1991 so long as minus 100% of such deficit), plus
(B) 100% of the Company's Combined Tangible Net Worth is greater than $31,051,000Capital Stock Sale Proceeds, plus
(iiC) the sum of:
(1) the aggregate of the net cash proceeds received by the Company or any Restricted Subsidiary from any the issuance or sale after the Issue Date of capital shares of the Company subsequent to the Closing Date, and (iii) the aggregate of the net cash proceeds received by the Company from any issuance of any Indebtedness of the Company which convertible or exchangeable Debt that has been converted into capital shares or exchanged for Capital Stock (other than Disqualified Stock) of the Company, and
(2) the aggregate amount by which Debt (other than Subordinated Obligations) of the Company subsequent or any Restricted Subsidiary is reduced on the Company's consolidated balance sheet on or after the Issue Date upon the conversion or exchange of any Debt issued or sold on or prior to the Closing DateIssue Date that is convertible or exchangeable for Capital Stock (other than Disqualified Stock) of the Company, which amount shall be added to excluding, in the Distribution Fund only after such conversion. Notwithstanding the foregoing, the Company may acquire its own capital shares for an aggregate amount from and after the Closing date equal to the greater case of clause (1) or (2):
(x) any such Debt issued or sold to the sum of (i) 25% of the Cumulative Combined Net Income Company or a Subsidiary of the Company subsequent to December 31or an employee stock ownership plan or trust established by the Company or any such Subsidiary for the benefit of their employees, 1991, plus (ii) $500,000, or and
(y) the aggregate amount then available under the Distribution Fund, which amount shall be charged to the Distribution Fund. No Restricted Payment may be made in other than of any cash or securities which are actively traded on a nationally recognized public market and have a readily ascertainable market value (which value shall be the amount of such Restricted Payment), unless other Property distributed by the Company shall have received a report from an independent recognized appraiser as to the fair value of the property to be distributed or transferred, in which case the amount of such Restricted Payment shall be deemed to be the greater of its fair value (as determined by such appraiser) or its net book value on the books of the Company. Notwithstanding any of the foregoing provisions of this paragraph, neither the Company nor any Subsidiary or Affiliate shall make any Restricted Payment if at the time Subsidiary upon any such conversion or after giving effect theretoexchange, there shall exist any Default.plus
Appears in 1 contract
Sources: Indenture (Aviall Inc)
Restricted Payments. Neither the The Company nor shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly: (i) declare or pay any dividend or make any other payment or distribution on account of the Company's or any of its Restricted Subsidiaries' Equity Interests or to the direct or indirect holders of the Company's or any of its Restricted Subsidiaries' Equity Interests in their capacity as stockholders (other than dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company or to the Company or a Restricted Subsidiary of the Company); (ii) purchase, redeem or otherwise acquire or retire for value any Equity Interests of the Company or any of its Restricted Subsidiaries or Affiliates shall any direct or indirect parent of the Company (other than any such Equity Interests owned by the Company or any Consolidated Subsidiary of the Company); (iii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Subordinated Indebtedness, except a payment of interest or principal at Stated Maturity; or (iv) make any Restricted Payment or Investment (all such payments and other actions set aside any funds therefor forth in clauses (i) through (iv) above being collectively referred to as "Restricted Payments"), unless, :
(a) at the time of and after giving effect theretoto such Restricted Payment, no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof,
(b) the aggregate Company would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to either clause (i) or (ii) of the first paragraph of Section 4.09 hereof; and
(c) such Restricted Payment, together with the aggregate amount of all other Restricted Payments for all such purposes subsequent to made by the Closing Company and its Restricted Subsidiaries on and after the Issue Date would not exceed (excluding Restricted Payments permitted by, and made pursuant to, clauses (ii) and (iii) and (viii) of the sum (next succeeding paragraph), is less than the sum, without duplication and except as credited in effect from time to timethe next succeeding paragraph, hereinafter referred to as the "Distribution Fund") of (i) 50% of the Company's Cumulative Combined Consolidated Net Income subsequent of the Company for the period (taken as one accounting period) beginning on the last day of the fiscal quarter immediately preceding the Issue Date and ending on the last day of the fiscal quarter immediately preceding the date of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit), plus (ii) 100% of the aggregate Net Cash Proceeds received by the Company on and after November 25, 1998 as a Capital Contribution or from the issue or sale of Equity Interests of the Company (other than Disqualified Stock) or from the issue or sale of Disqualified Stock or debt securities of the Company that have been converted or exchanged into such Equity Interests (other than Equity Interests (or Disqualified Stock or converted debt securities) sold to December 31, 1991 so long as a Subsidiary of the Company's Combined Tangible ), plus the amount of Net Worth Cash Proceeds received by the Company upon such conversion or exchange, plus (iii) the aggregate amount equal to the net reduction in Investments in Unrestricted Subsidiaries on and after the Issue Date resulting from (x) dividends, distributions, interest payments, return of capital, repayments of Investments or other transfers of assets to the Company or any Restricted Subsidiary from any Unrestricted Subsidiary, (y) proceeds realized by the Company or any Restricted Subsidiary upon the sale of such Investment to a Person other than the Company or any Subsidiary of the Company, or (z) the redesignation of any Unrestricted Subsidiary as a Restricted Subsidiary, not to exceed in the case of any of the immediately preceding clauses (x), (y) or (z) the aggregate amount of Restricted Investments made by the Company or any Restricted Subsidiary in such Unrestricted Subsidiary on and after the Issue Date, plus (iv) to the extent that any Restricted Investment that was made on and after the Issue Date is greater than $31,051,000sold for cash or otherwise liquidated or repaid for cash, the lesser of, to the extent paid to the Company or a Restricted Subsidiary, (A) the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any) and (B) the initial amount of such Restricted Investment. 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 foregoing provisions; (ii) the aggregate redemption, repurchase, retirement, defeasance or other acquisition of any Subordinated Indebtedness or Equity Interests of the Company in exchange for, or out of the Net Cash Proceeds of the substantially concurrent sale (other than to a Subsidiary of the Company) of, Equity Interests of the Company (other than any Disqualified Stock); provided that the amount of any such Net Cash Proceeds that are utilized for, and the Equity Interests issued or exchanged for, any such redemption, repurchase, retirement, defeasance or other acquisition shall be excluded from clause (c) of the preceding paragraph and each other clause of this paragraph; (iii) the defeasance, redemption, retirement, repurchase or other acquisition of Subordinated Indebtedness with the Net Cash Proceeds from, or issued in exchange for, a substantially concurrent incurrence of Permitted Refinancing Indebtedness; 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) of the preceding paragraph and each other clause of this paragraph; (iv) the payment of any dividend or other distribution by a Restricted Subsidiary of the Company to the holders of its Equity Interests on a pro rata basis; (v) the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any of its Restricted Subsidiaries held by any member of the Company's or such Restricted Subsidiary's management; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall not exceed $1.0 million in any fiscal year; (vi) retiring any Equity Interests of the Company to the extent necessary (as determined in good faith by a majority of the disinterested members of the Board of Directors, whose determination shall be evidenced by a resolution thereof) to prevent the loss, or to secure the renewal or reinstatement, of any license or franchise held by the Company or any Restricted Subsidiary from any governmental agency; (vii) Investments in Telecommunications Assets, provided that the aggregate fair market value (measured on the date each such Investment was made or returned, as applicable), when taken together with all other Investments made pursuant to this clause (vii) that are at the time outstanding, does not exceed the sum of (y) $15.0 million, plus (z) the aggregate amount equal to the net reduction in Investments made pursuant to this clause (vii) on and after the Issue Date resulting from dividends, distributions, interest payments, return of capital, repayments of such Investments or Net Cash Proceeds realized by the Company or any Restricted Subsidiary upon the sale of such Investment to a Person other than the Company or any Subsidiary of the Company, except to the extent any such net reduction amount is included in the amount calculated pursuant to clause (c) of the preceding paragraph or any other clause of this paragraph; (viii) Investments in Telecommunications Assets made after November 25, 1998 with the (x) Net Cash Proceeds, (y) the fair market value of Telecommunications Assets or (z) Equity Interests of a Person that becomes a Restricted Subsidiary (provided that the assets of such Person consist entirely or substantially entirely of Telecommunications Assets), in each case, received from the issuance or sale (other than to a Subsidiary of the Company) of 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 Investment shall be excluded from clause (c) of the preceding paragraph and each other clause of this paragraph; (ix) Investments in ION, provided that the aggregate fair market value thereof (measured on the date each such Investment was made or returned, as applicable), when taken together with all other Investments made pursuant to this clause (ix) does not exceed the sum of (I) $15.0 million, plus, (II) for each fiscal year, an amount equal to the amount of cash proceeds received by the Company or any of its Restricted Subsidiaries from ION or any issuance of its Subsidiaries during such fiscal year, except to the extent any such amount is included in the amount calculated pursuant to clause (c) of the preceding paragraph or any other clause of this paragraph, plus (III), to the extent necessary to pay reasonable and necessary operating expenses of ION, an amount not to exceed $1.0 million in each fiscal year; and (x) Investments in the German Joint Venture, provided that the aggregate fair market value (measured on the date each such Investment was made or returned, as applicable), when taken together with all other Investments made pursuant to this clause (x) that are at the time outstanding, does not exceed the sum of (y) $100.0 million, plus (z) the aggregate amount equal to the net reduction in Investments made pursuant to this clause (x) on and after the Issue Date resulting from dividends, distributions, interest payments, return of capital, repayments of such Investments or Net Cash Proceeds realized by the Company or any Restricted Subsidiary upon the sale of capital shares such Investment to a Person other than the Company or any Subsidiary of the Company, except to the extent such amount is included in the amount calculated pursuant to clause (c) of the preceding paragraph or any other clause of this paragraph. The Board of Directors may not designate any Subsidiary of the Company subsequent (other than a newly created Subsidiary in which no Investment has previously been made (other than any de minimus amount required to capitalize such Subsidiary in connection with its organization)) as an Unrestricted Subsidiary (a "Designation") unless: (i) no Default or Event of Default shall have occurred and be continuing at the Closing Datetime of or after giving effect to such Designation; (ii) the Company would, immediately after giving effect to such Designation, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to either clause (i) or (ii) of the first paragraph of Section 4.09 hereof and (iii) the aggregate Company would not be prohibited under the Indenture from making an Investment at the time of such Designation (assuming the effectiveness of such Designation for purposes of this Section 4.07) in an amount equal to the fair market value of the net cash proceeds received Investment of the Company and all Restricted Subsidiaries in such Subsidiary on such date. In the event of any such Designation, all outstanding Investments owned by the Company from any issuance of any Indebtedness of and its Restricted Subsidiaries in the Company which has been converted into capital shares of the Company subsequent to the Closing Date, which amount shall be added to the Distribution Fund only after such conversion. Notwithstanding the foregoing, the Company may acquire its own capital shares for an aggregate amount from and after the Closing date equal to the greater of (x) the sum of (i) 25% of the Cumulative Combined Net Income of the Company subsequent to December 31, 1991, plus (ii) $500,000, or (y) the amount then available under the Distribution Fund, which amount shall be charged to the Distribution Fund. No Restricted Payment may be made in other than cash or securities which are actively traded on a nationally recognized public market and have a readily ascertainable market value (which value shall be the amount of such Restricted Payment), unless the Company shall have received a report from an independent recognized appraiser as to the fair value of the property to be distributed or transferred, in which case the amount of such Restricted Payment shall Subsidiary so designated will be deemed to be the greater of its fair value (an Investment made as determined by such appraiser) or its net book value on the books of the Company. Notwithstanding any time of such Designation and will reduce the foregoing provisions amount available for Restricted Payments under the first or second paragraph of this paragraphcovenant, neither as applicable. All such outstanding Investments will be deemed to constitute Restricted Payments in an amount equal to the Company nor any Subsidiary or Affiliate shall make any Restricted Payment if fair market value of such Investments at the time or after giving effect thereto, there shall exist any Defaultof such Designation.
Appears in 1 contract
Restricted Payments. Neither the The Company nor shall not, and shall not permit any of its Subsidiaries to, directly or Affiliates shall indirectly: (i) declare or pay any dividend or make any other payment or distribution on account of the Company's Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company) or to the direct or indirect holders of the Company's Equity Interests in their capacity as such (other than dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company); (ii) purchase, redeem or otherwise acquire or retire for value any Equity Interests of the Company or any direct or indirect parent of the Company; (iii) make any principal payment on, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness that is subordinated to the Notes, except at final maturity; or (iv) make any Restricted Payment or Investment (all such payments and other actions set aside any funds therefor forth in clauses (i) through (iv) above being collectively referred to as "Restricted Payments"), unless, at the time of and after giving effect theretoto such Restricted Payment:
(a) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof; and
(b) the Company would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the first paragraph of the Section 4.09 hereof; and
(c) such Restricted Payment, together with the aggregate of such all other Restricted Payments for all such purposes subsequent to made by the Closing Date would not exceed Company and its Subsidiaries after the date of this Indenture (excluding Restricted Payments permitted by clauses (x) and (y) of the next succeeding paragraph), is less than the sum (as in effect from time to time, hereinafter referred to as the "Distribution Fund") of (i) 50% of the Company's Cumulative Combined Consolidated Net Income subsequent of the Company for the period (taken as one accounting period) from the beginning of the first fiscal quarter commencing after the Issue Date to December 31, 1991 so long as the end of the Company's Combined Tangible most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Worth Income for such period is greater than $31,051,000a deficit, less 100% of such deficit), plus (ii) 100% of the aggregate of the net cash proceeds received by the Company from any issuance the issue or sale since the Issue Date of capital shares Equity Interests of the Company subsequent or of debt securities of the Company that have been converted into such Equity Interests (other than Equity Interests (or convertible debt securities) sold to a Subsidiary of the Closing DateCompany and other than Disqualified Stock or debt securities that have been converted into Disqualified Stock), and plus (iii) the aggregate of the net cash proceeds received by the Company from any issuance of any Indebtedness of the Company which has been converted into capital shares of the Company subsequent to the Closing Date, which amount shall be added to extent that any Restricted Investment that was made after the Distribution Fund only after such conversion. Notwithstanding the foregoingIssue Date is sold for cash or otherwise liquidated or repaid for cash, the Company may acquire its own capital shares for an aggregate amount from and after the Closing date equal to the greater lesser of (xA) the sum cash return of capital with respect to such Restricted Investment (iless the cost of disposition, if any) 25% of the Cumulative Combined Net Income of the Company subsequent to December 31, 1991, plus and (ii) $500,000, or (yB) the amount then available under the Distribution Fund, which amount shall be charged to the Distribution Fund. No Restricted Payment may be made in other than cash or securities which are actively traded on a nationally recognized public market and have a readily ascertainable market value (which value shall be the initial amount of such Restricted Payment)Investment, unless the Company shall have received a report from an independent recognized appraiser as to the fair value of the property to be distributed or transferred, in which case the amount of such Restricted Payment shall be deemed to be the greater of its fair value plus (as determined by such appraiseriv) or its net book value on the books of the Company$10.0 million. Notwithstanding any of the The foregoing provisions of this paragraph, neither the Company nor any Subsidiary or Affiliate shall make any Restricted Payment if at the time or after giving effect thereto, there shall exist any Default.not prohibit:
Appears in 1 contract
Sources: Indenture (Printpack Inc)
Restricted Payments. Neither the (a) The Company nor shall not, and shall not permit any of its Subsidiaries to, directly or Affiliates shall indirectly, (i) declare or pay any dividend or make any other payment or distribution on account of the Company's Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company) or to the direct or indirect holders of the Company's Equity Interests in their capacity as such (other than dividends or distributions payable solely in Equity Interests (other than Disqualified Stock) of the Company or dividends or distributions payable to the Company or any Wholly Owned Subsidiary of the Company); (ii) purchase, redeem or otherwise acquire or retire for value any Equity Interests of the Company or any direct or indirect parent of the Company or other Affiliate of the Company (other than Equity Interests of a Subsidiary of the Company); (iii) make any principal payment on, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness that is subordinated to the Notes or any Subsidiary Guarantee thereof, except at final maturity; or (iv) make any Restricted Payment or Investment (all such payments and other actions set aside any funds therefor forth in clauses (i) through (iv) above being collectively referred to as "Restricted Payments"), unless, at ------------------- the time of and after giving effect theretoto such Restricted Payment:
(A) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof; and
(B) the Company would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 8.4(a) hereof; and
(C) such Restricted Payment, together with the aggregate of such all other Restricted Payments for all such purposes subsequent made by the Company and its Subsidiaries after the date of this Agreement (excluding Restricted Payments permitted by clauses (ii) and (iii), and the aggregate cash proceeds referred to in clause (iv), of the Closing Date would not exceed next succeeding paragraph), is less than the sum (as in effect from time to time, hereinafter referred to as the "Distribution Fund") of (i1) 50% of the Company's Cumulative Combined Consolidated Net Income subsequent of the Company for the period (taken as one accounting period) from the beginning of the first fiscal quarter commencing after the date of this Agreement to December 31, 1991 so long as the end of the Company's Combined Tangible most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Worth Income for such period is greater than $31,051,000a deficit, less 100% of such deficit), plus (ii2) 100% of the aggregate of the net cash proceeds received by the Company from any issuance the issue or sale since the date of capital shares this Agreement of Equity Interests of the Company subsequent or of debt securities of the Company that have been converted into such Equity Interests (other than Equity Interests (or convertible debt securities) sold to a Subsidiary of the Company and other than Disqualified Stock or debt securities that have been converted into Disqualified Stock), plus (3) to the Closing Dateextent that any Restricted Investment that was made after the date of this Agreement is sold for cash or otherwise liquidated or repaid for cash, the lesser of (x) the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any) and (y) the initial amount of such Restricted Investment.
(b) The foregoing provisions shall not prohibit any of the following if no Default or Event of Default shall have occurred and be continuing immediately after any such transaction: (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 Agreement; (ii) 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 other Equity Interests of the Company (other than any Disqualified Stock); provided, however, 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)(2) of the preceding paragraph; (iii) the aggregate defeasance, redemption or repurchase of subordinated Indebtedness with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness or the substantially concurrent sale (other than to a Subsidiary of the Company) of Equity Interests of the Company (other than Disqualified Stock); provided, however, 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)(2) of the preceding paragraph; (iv) the payment of any distribution or dividend to Holdings to enable Holdings to (A) pay its overhead expenses, (B) make any payments it is required to make under the Management Services Agreement (or any agreement extending or replacing the Management Services Agreement which contains the same terms with respect to fees and other terms no less favorable to the Company and its Subsidiaries) or (C) repurchase, redeem or otherwise acquire or retire for value of any Equity Interests of Holdings, the Company or any Subsidiary of the Company held by any member of the Company's (or any of its Subsidiaries') management pursuant to any management equity subscription agreement or stock option agreement; provided, however, that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall not exceed $1,000,000 in any twelve-month period plus the aggregate cash proceeds received by the Company or any Subsidiary during such twelve-month period from any issuance reissu ance of Equity Interests by the Company or any Indebtedness Subsidiary to members of management of the Company which has been converted into capital shares and its Subsidiaries plus any proceeds received during such 12-month period under key man insurance policies with respect to such members of management; and provided, further, that any such aggregate cash proceeds from any such reissuance of Equity Interests shall be excluded from clause (C)(2) of the Company subsequent preceding paragraph and (v) payments in an aggregate amount not to exceed $3.0 million since the date of this Agreement in respect of the purchase, retirement or redemption of Existing Indebtedness for an amount less than the face amount thereof.
(c) The amount of all 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 Closing DateTrustee) on the date of the Restricted Payment of the asset(s) proposed to be transferred by the Company or such Subsidiary, which amount shall be added as the case may be, pursuant to the Distribution Fund only after such conversionRestricted Payment. Notwithstanding Not later than the foregoingdate of making any Restricted Payment, the Company may acquire its own capital shares for an aggregate amount from and after the Closing date equal shall deliver to the greater of (x) the sum of (i) 25% of the Cumulative Combined Net Income of the Company subsequent to December 31, 1991, plus (ii) $500,000, or (y) the amount then available under the Distribution Fund, which amount shall be charged to the Distribution Fund. No Restricted Payment may be made in other than cash or securities which are actively traded on a nationally recognized public market and have a readily ascertainable market value (which value shall be the amount of such Restricted Payment), unless the Company shall have received a report from Holders an independent recognized appraiser as to the fair value of the property to be distributed or transferred, in which case the amount of Officers' Certificate stating that such Restricted Payment shall is permitted and setting forth the basis upon which the calculations required by this Section 8.2 were computed, which calculations may be deemed to be the greater of its fair value (as determined by such appraiser) or its net book value on the books of based upon the Company. Notwithstanding any of the foregoing provisions of this paragraph, neither the Company nor any Subsidiary or Affiliate shall make any Restricted Payment if at the time or after giving effect thereto, there shall exist any Default's latest available financial statements.
Appears in 1 contract
Restricted Payments. Neither the The Company nor shall not, and shall not permit any of its Restricted Subsidiaries to, directly or Affiliates shall make any Restricted Payment or set aside any funds therefor unless, after giving effect thereto, the aggregate of such Restricted Payments for all such purposes subsequent to the Closing Date would not exceed the sum (as in effect from time to time, hereinafter referred to as the "Distribution Fund") of indirectly: (i) 50% declare or pay any dividend or make any other payment or distribution on account of the Company's Cumulative Combined Net Income subsequent or any of its Restricted Subsidiaries' Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company or any of its Restricted Subsidiaries) or to December 31, 1991 so long as the direct or indirect holders of the Company's Combined Tangible Net Worth is greater or any of its Restricted Subsidiaries' Equity Interests in their capacity as such (other than $31,051,000, dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company or to the Company or any Restricted Subsidiary of the Company); (ii) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the aggregate Company) any Equity Interests of the net cash proceeds received Company or any direct or indirect parent of the Company or other Affiliate of the Company (other than any such Equity Interests owned by the Company from or any issuance or sale of capital shares Restricted Subsidiary of the Company subsequent to the Closing Date, and Company); (iii) the aggregate of the net cash proceeds received by the Company from make any issuance of principal payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness of the Company which has been converted into capital shares of the Company subsequent that is subordinated to the Closing DateSubordinated Notes, which amount shall be added to the Distribution Fund only after except a payment of principal at Stated Maturity; or (iv) make any Restricted Investment (all such conversion. Notwithstanding the foregoing, the Company may acquire its own capital shares for an aggregate amount from payments and after the Closing date equal to the greater of (x) the sum of other actions set forth in clauses (i) 25% through (iv) above being collectively referred to as "Restricted Payments"), unless, at the time of the Cumulative Combined Net Income of the Company subsequent and after giving effect to December 31, 1991, plus (ii) $500,000, or (y) the amount then available under the Distribution Fund, which amount shall be charged to the Distribution Fund. No Restricted Payment may be made in other than cash or securities which are actively traded on a nationally recognized public market and have a readily ascertainable market value (which value shall be the amount of such Restricted Payment), unless :
(a) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof; and
(b) the Company shall have received a report from an independent recognized appraiser as to would, at the fair value of the property to be distributed or transferred, in which case the amount time of such Restricted Payment shall be deemed to be and after giving pro forma effect thereto as if such Restricted Payment had been made at the greater of its fair value (as determined by such appraiser) or its net book value on the books beginning of the Company. Notwithstanding any applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the foregoing provisions of this paragraph, neither Fixed Charge Coverage Ratio test set forth in the Company nor any Subsidiary or Affiliate shall make any Restricted Payment if at the time or after giving effect thereto, there shall exist any Default.first paragraph of
Appears in 1 contract
Sources: Indenture (Sf Holdings Group Inc)
Restricted Payments. Neither the (a) The Company nor will not, and will not permit any of its Restricted Subsidiaries to, directly or Affiliates shall indirectly:
(1) declare or pay any dividend or make any other payment or distribution on account of the Company’s Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company) or to the direct or indirect holders of the Company’s Equity Interests in their capacity as such (other than dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company);
(2) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or any direct or indirect parent of the Company;
(3) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness of the Company or any Guarantor that is contractually subordinated to the Notes or to any Guarantee (excluding any intercompany Indebtedness between or among the Company and any of its Restricted Subsidiaries), except a payment of interest or principal at the Stated Maturity thereof; or
(4) make any Restricted Payment or Investment (all such payments and other actions set aside any funds therefor forth in these clauses (1) through (4) above being collectively referred to as “Restricted Payments”), unless, at the time of and after giving effect thereto, the aggregate to such Restricted Payment:
(1) no Default or Event of Default has occurred and is continuing or would occur as a consequence of such Restricted Payments for all Payment;
(2) the Company would, at the time of such purposes subsequent Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable two-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Closing Date would not exceed Debt to Cash Flow Ratio test set forth in Section 4.09(a) hereof; and
(3) such Restricted Payment, together with the sum aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries since the date of this Indenture (as in effect from time to timeexcluding Restricted Payments permitted by clauses (1), hereinafter referred to as the "Distribution Fund"(2), (3), (5), (6), and (7) of paragraph (ib) 50of this Section 4.07), is less than the sum, without duplication of:
(A) 100% of the Company's Cumulative Combined Net Income subsequent Consolidated Cash Flow of the Company for the period (taken as one accounting period) from January 1, 2004 to December 31, 1991 so long as the end of the Company's Combined Tangible Net Worth is greater than $31,051,000, ’s most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment less the product of 1.5 times the Company’s Consolidated Interest Expense for the same period; plus
(iiB) 100% of the aggregate of the net cash proceeds received by the Company since the date of this Indenture as a contribution to its common equity capital or from any issuance the issue or sale of capital shares Equity Interests of the Company subsequent (other than Disqualified Stock) or from the issue or sale of convertible or exchangeable Disqualified Stock or convertible or exchangeable debt securities of the Company that have been converted into or exchanged for such Equity Interests (other than Equity Interests (or Disqualified Stock or debt securities) sold to a Subsidiary of the Company); plus
(C) to the Closing Dateextent that any Restricted Investment that was made after the date of this Indenture is sold for cash or otherwise liquidated or repaid for cash, the lesser of (i) the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any) and (iiiii) the aggregate initial amount of such Restricted Investment; plus
(D) to the extent that any Unrestricted Subsidiary of the Company designated as such after the date of this Indenture is redesignated as a Restricted Subsidiary after the date of this Indenture, the lesser of (i) the Fair Market Value of the Company’s Investment in such Subsidiary as of the date of such redesignation or (ii) such Fair Market Value as of the date on which such Subsidiary was originally designated as an Unrestricted Subsidiary after the date of this Indenture; plus
(E) 50% of any dividends received by the Company or a Restricted Subsidiary of the Company that is a Guarantor after the date of this Indenture from an Unrestricted Subsidiary of the Company, to the extent that such dividends were not otherwise included in the Consolidated Net Income of the Company for such period;
(b) The provisions of Section 4.07(a) hereof will not prohibit:
(1) the payment of any dividend or the consummation of any irrevocable redemption within 60 days after the date of declaration of the dividend or giving of the redemption notice, as the case may be, if at the date of declaration or notice, the dividend or redemption payment would have complied with the provisions of this Indenture;
(2) the making of any Restricted Payment in exchange for, or out of the net cash proceeds received by of the substantially concurrent sale (other than to a Subsidiary of the Company) of, Equity Interests of the Company (other than Disqualified Stock) or from any issuance the substantially concurrent contribution of common equity capital to the Company; provided that the amount of any such net cash proceeds that are utilized for any such Restricted Payment will be excluded from clause (3)(B) of Section 4.07(a) hereof;
(3) the repurchase, redemption, defeasance or other acquisition or retirement for value of Indebtedness of the Company which has been converted into capital shares or any Guarantor that is contractually subordinated to the Notes or to any Guarantee with the net cash proceeds from a substantially concurrent incurrence of Permitted Refinancing Indebtedness;
(4) the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company, Parent or any Restricted Subsidiary of the Company subsequent held by any current or former officer, director or employee of the Company or any of its Restricted Subsidiaries pursuant to any equity subscription agreement, stock option agreement, shareholders’ agreement or similar agreement (or the payment of a dividend or other distribution to Parent for such purpose); provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may not exceed $500,000 in any twelve-month period;
(5) the repurchase of Equity Interests deemed to occur upon the exercise of stock options to the Closing Date, which amount shall be added extent such Equity Interests represent a portion of the exercise price of those stock options;
(6) the declaration and payment of regularly scheduled or accrued dividends to the Distribution Fund only after such conversion. Notwithstanding the foregoing, holders of any class or series of Disqualified Stock of the Company may acquire its own capital shares for or any Restricted Subsidiary of the Company issued on or after the date of this Indenture in accordance with the Debt to Cash Flow Ratio test described in Section 4.09 hereof;
(7) Permitted Payments to Parent; and
(8) additional Restricted Payments in an aggregate amount from and after not to exceed $25.0 million. The amount of all Restricted Payments (other than cash) will be the Closing Fair Market Value on the date equal 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 greater Restricted Payment. The Fair Market Value of (x) any assets or securities that are required to be valued by this Section 4.07 will be determined by the sum Board of (i) 25% of the Cumulative Combined Net Income Directors of the Company subsequent to December 31, 1991, plus (ii) $500,000, or (y) the amount then available under the Distribution Fund, which amount whose resolution with respect thereto shall be charged delivered to the Distribution FundTrustee. No Restricted Payment may The Board of Directors’ determination must be made in other than cash based upon an opinion or securities which are actively traded on a nationally recognized public market and have a readily ascertainable market value (which value shall be appraisal issued by an accounting, appraisal or investment banking firm of national standing if the amount of such Restricted Payment), unless the Company shall have received a report from an independent recognized appraiser as to the fair value of the property to be distributed or transferred, in which case the amount of such Restricted Payment shall be deemed to be the greater of its fair value (as determined by such appraiser) or its net book value on the books of the Company. Notwithstanding any of the foregoing provisions of this paragraph, neither the Company nor any Subsidiary or Affiliate shall make any Restricted Payment if at the time or after giving effect thereto, there shall exist any DefaultFair Market Value exceeds $5.0 million.
Appears in 1 contract
Sources: Indenture (Ubiquitel Inc)
Restricted Payments. Neither the The Company nor will not, and will not permit any of its Restricted Subsidiaries to, directly or Affiliates shall indirectly:
(1) declare or pay any dividend or make any other payment or distribution on account of the Company's Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company or any of its Restricted Subsidiaries) or to the direct or indirect holders of the Company's or any of its Restricted Subsidiaries' Equity Interests in their capacity as such (other than dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company);
(2) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company;
(3) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness that is subordinated to the Notes or the Subsidiary Guarantees, except a payment of interest or principal at the Stated Maturity thereof; or
(4) make any Restricted Payment or Investment (all such payments and other actions set aside any funds therefor forth in these clauses (1) through (4) above being collectively referred to as "RESTRICTED PAYMENTS"), unless, at the time of and after giving effect thereto, the aggregate to such Restricted Payment:
(1) no Default or Event of Default has occurred and is continuing or would occur as a consequence of such Restricted Payments for all Payment; and
(2) the Company would, at the time of such purposes subsequent Restricted Payment after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Closing Date would not exceed Fixed Charge Coverage Ratio test set forth in the sum first paragraph of Section 4.09; and
(as in effect from time to time3) such Restricted Payment, hereinafter referred to as together with the "Distribution Fund"aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after the date of this Indenture (excluding Restricted Payments permitted by clauses (2) through (10) inclusive, of the next succeeding paragraph), is less than the sum, without duplication, of:
(ia) 50% of the Company's Cumulative Combined Consolidated Net Income subsequent of the Company for the period (taken as one accounting period) from the beginning of the first fiscal quarter commencing after the date of this Indenture to December 31, 1991 so long as the end of the Company's Combined Tangible most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Worth Income for such period is greater than $31,051,000a deficit, less 100% of such deficit), PLUS
(iib) 100% of the aggregate of the net cash proceeds received by the Company since the date of this Indenture as a contribution to its common equity capital or from any issuance the issue or sale of capital shares Equity Interests of the Company subsequent (other than Disqualified Stock and other than Equity Interests sold to members of management) or from the issue or sale of convertible or exchangeable Disqualified Stock or convertible or exchangeable debt securities of the Company that have been converted into or exchanged for such Equity Interests (other than Equity Interests (or Disqualified Stock or debt securities) sold to a Subsidiary of the Company), PLUS
(c) to the Closing Dateextent that any Restricted Investment that was made after the date of this Indenture is sold for cash or otherwise liquidated or repaid for cash, the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any), PLUS
(d) if any Unrestricted Subsidiary (i) is redesignated as a Restricted Subsidiary, the fair market value of such redesignated Subsidiary (as determined in good faith by the Board of Directors) as of the date of its redesignation or (ii) pays any cash dividends or cash distributions to the Company or any of its Restricted Subsidiaries, 100% of any such cash dividends or cash distributions made after the date of this Indenture. The preceding provisions will not prohibit:
(1) so long as no Default has occurred and is continuing or would be caused thereby, the payment of any dividend within 60 days after the date of declaration of the dividend, if at the date of declaration the dividend payment would have complied with the provisions of this Indenture;
(iii2) so long as no Default has occurred and is continuing or would be caused thereby, the redemption, repurchase, retirement, defeasance or other acquisition of any subordinated Indebtedness of the Company or any Restricted Subsidiary or of any Equity Interests of the Company in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Restricted Subsidiary of the Company) of, Equity Interests of the Company (other than 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 will be excluded from clause (3)(b) of the preceding paragraph;
(3) 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;
(4) the payment of any dividend by a Restricted Subsidiary of the Company to the holders of its Equity Interests on a pro rata basis;
(5) so long as no Default has occurred and is continuing or would be caused thereby, the repurchase, redemption or other acquisition or retirement for value of (including any disbursements to Holdings for such purpose) any Equity Interests of Holdings, the Company or any Restricted Subsidiary of the Company held by any member or former member of Holdings, the Company's (or any of its Restricted Subsidiaries') management pursuant to any equity subscription agreement, stock option agreement or similar agreement; PROVIDED that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall not exceed (a) $1.0 million in any calendar year (with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to clause (b)) of $2.0 million in any calendar year), PLUS (b) the aggregate of the net cash proceeds received by the Company and its Restricted Subsidiaries from any issuance or reissuance of Equity Interests to members of management and the proceeds of any "key man" life insurance policies in any calendar year; PROVIDED, FURTHER that the cancellation of Indebtedness of owing to the Company which has been converted into capital shares or its Restricted Subsidiaries from members of the Company subsequent to the Closing Date, which amount shall be added to the Distribution Fund only after management in connection with such conversion. Notwithstanding the foregoing, the Company may acquire its own capital shares for an aggregate amount from and after the Closing date equal to the greater repurchase of (x) the sum of (i) 25% of the Cumulative Combined Net Income of the Company subsequent to December 31, 1991, plus (ii) $500,000, or (y) the amount then available under the Distribution Fund, which amount shall be charged to the Distribution Fund. No Restricted Payment may be made in other than cash or securities which are actively traded on a nationally recognized public market and have a readily ascertainable market value (which value shall be the amount of such Restricted Payment), unless the Company shall have received a report from an independent recognized appraiser as to the fair value of the property to be distributed or transferred, in which case the amount of such Restricted Payment shall Equity Interests will not be deemed to be a Restricted Payment;
(6) distributions or payments (a) to Holdings in amounts necessary to permit Holdings to satisfy income tax obligations of Holdings that are actually due and owing and are attributable to its ownership of the greater Company, PROVIDED that such amounts do not exceed the amount that would otherwise be due and owing if the Company and its Restricted Subsidiaries filed separate tax returns, PROVIDED HOWEVER, that (1) notwithstanding the foregoing, in the case of determining the amount payable by the Company to Holdings for income tax obligations, such payment shall not exceed an amount determined on the basis of assuming that the Company is the parent company of an affiliated group filing a consolidated Federal income tax return and that Holdings and the Restricted Subsidiaries are members of such affiliated group and (2) any payments for income tax obligations shall either be used by Holdings to pay tax liabilities within 90 days of Holding's receipt of such payment or refunded to the Company and (b) to Holdings to pay the necessary fees and expenses to maintain its corporate existence and good standing and, so long as no Default has occurred and is continuing, other general and administrative expenses (which amounts in the aggregate shall not exceed $500,000 per year);
(7) so long as no Default has occurred and is continuing, the declaration and payment of dividends on Disqualified Stock, that was issued in compliance with this Indenture;
(8) repurchases of Equity Interests deemed to occur upon the exercise of stock options to the extent such Equity Interests represent a portion of the exercise price thereof;
(9) purchases of fractional Equity Interests of the Company, or distributions to Holdings to permit it to purchase fractional Equity Interests of Holdings, for aggregate consideration not to exceed $100,000 since the date of this Indenture; and
(10) so long as no Default has occurred and is continuing, other Restricted Payments in an amount not to exceed $1.0 million. The amount of all Restricted Payments (other than cash) will be the fair value (as determined by such appraiser) or its net book market value on the books date of the Company. Notwithstanding any Restricted Payment of the foregoing provisions 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 assets or securities that are required to be valued by this Section 4.07 will be determined by the Board of Directors whose resolution with respect thereto will be delivered to the Trustee. The Board of Directors' determination must be based upon an opinion or appraisal issued by an accounting, appraisal or investment banking firm of national standing if the fair market value exceeds $15.0 million. Not later than the date of making any Restricted Payment, the Company will deliver to the Trustee an Officers' Certificate stating that such Restricted Payment is permitted under the terms of this paragraphIndenture and setting forth the basis upon which the calculations required by this Section 4.07 were computed, neither the Company nor together with a copy of any Subsidiary fairness opinion or Affiliate shall make any Restricted Payment if at the time or after giving effect thereto, there shall exist any Defaultappraisal required by this Indenture.
Appears in 1 contract
Sources: Indenture (H&e Finance Corp)
Restricted Payments. Neither the Company nor any of its Subsidiaries Make or Affiliates shall declare or otherwise become obligated to make any Restricted Payment (other than obligations that are conditioned on compliance with this SECTION 8.04), except that this SECTION 8.04 shall not apply to any Restricted Payment:
(a) made to any Loan Party (other than a Limited Guarantor);
(b) made by any Restricted Subsidiary to the holders of any class of its Capital Stock, pro rata in accordance with their respective interests in such class of Capital Stock;
(c) consisting of payments under Permitted Tax Sharing Agreements;
(d) so long as no Default shall have occurred or set aside be continuing or shall occur as a consequence thereof, consisting of the purchase for value of shares of Capital Stock of the Borrower or warrants, options or other rights to acquire Capital Stock of the Borrower held by directors, officers or employees of the Borrower upon death, disability, retirement or termination of employment in an aggregate amount not to exceed $3,000,000 in any funds therefor unlesstwelve-month period;
(e) made (i) to Refinance any Subordinated Debt in an aggregate amount of up to $100,000,000, PROVIDED that, after giving effect theretoto such Restricted Payment and the Refinancing of such Subordinated Debt, the aggregate of such Restricted Payments for all such purposes subsequent to the Closing Date would not Aggregate Revolving Commitments exceed the sum Total Revolving Outstandings by at least $75,000,000, (as ii) to pay any premium, "make-whole" amounts, penalties, fees and expenses in effect from time connection with a Refinancing of Subordinated Debt permitted pursuant to time, hereinafter referred to as the "Distribution Fund") of clause (i) 50% above or (iii) to pay any premium, "make-whole" amounts, penalties, fees and expenses of up to $15,000,000 in the aggregate in connection with any Refinancing of any Subordinated Debt that does not otherwise involve the making of any Restricted Payments;
(f) so long as no Default shall have occurred or be continuing or shall occur as a consequence thereof, consisting of the Company's Cumulative Combined Net Income subsequent purchase from the Permitted Holders, of Capital Stock of the Borrower owned by any of them for an aggregate purchase price of up to $50,000,000 PROVIDED THAT (i) no such purchase shall occur prior to December 31, 1991 2005 and (ii) not more than $25,000,000 may be committed to be purchased, or purchased, prior to December 31, 2007 (PROVIDED, HOWEVER, that, notwithstanding the foregoing, the Borrower and its Restricted Subsidiaries may, at any time, commit to purchase Capital Stock from the Permitted Holders so long as the Company's Combined Tangible Net Worth agreement evidencing such commitment provides that the purchase will occur at a time permitted by this clause (f) and only to the extent such purchase is greater than $31,051,000, permitted by this clause (iif) the aggregate as of the net cash proceeds received proposed purchase date); and
(g) made by the Company from any issuance or sale of capital shares of the Company subsequent to the Closing Date, and (iii) the aggregate of the net cash proceeds received by the Company from any issuance of any Indebtedness of the Company which has been converted into capital shares of the Company subsequent to the Closing Date, which amount shall be added to the Distribution Fund only after such conversion. Notwithstanding the foregoing, the Company may acquire its own capital shares for Borrower in an aggregate amount from and after the Closing date equal to the greater not in excess of (x) the sum of (i) 25% of the Cumulative Combined Net Income of the Company subsequent to December 31$40,000,000, 1991, plus (ii) an additional $500,0005,000,000 during any fiscal year of the Borrower (commencing with the fiscal year ending June 30, 2004) and (iii) an additional amount in any fiscal year of the Borrower (commencing with the fiscal year ending June 30, 2004) equal to 50% of Excess Cash Flow for the immediately preceding fiscal year, PROVIDED THAT (x) no Default shall have occurred and be continuing or would result therefrom and (y) the amount then available under the Distribution Fund, which amount Borrower shall be charged have delivered to the Distribution Fund. No Restricted Payment may Administrative Agent a Pro Forma Compliance Certificate demonstrating that the Borrower would be made in other than cash or securities which are actively traded on a nationally recognized public market and have a readily ascertainable market value (which value shall be the amount of such Restricted Payment), unless the Company shall have received a report from an independent recognized appraiser as compliance with SECTION 8.19 after giving effect to the fair value of the property to be distributed or transferred, in which case the amount of such Restricted Payment shall be deemed to be the greater of its fair value (on a Pro Forma Basis as determined by such appraiser) or its net book value on the books of the Company. Notwithstanding most recent fiscal quarter end with respect to which the Administrative Agent has received the Required Financial Information (any portion of the foregoing provisions of this paragraph, neither the Company nor such amounts described in clauses (ii) and (iii) above that is not paid in a particular fiscal year may be carried forward and paid in any Subsidiary or Affiliate shall make any Restricted Payment if at the time or after giving effect thereto, there shall exist any Defaultsubsequent fiscal year).
Appears in 1 contract
Restricted Payments. Neither From and after the date hereof the Company nor will not, and will not permit any of its Restricted Subsidiaries to, directly or Affiliates shall indirectly: (i) declare or pay any dividend or make any other payment or distribution on account of the Company's or any of its Restricted Subsidiaries' Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company) or to the direct or indirect holders of the Company's or any of its Restricted Subsidiaries' Equity Interests in their capacity as such (other than dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company); (ii) purchase, redeem or otherwise acquire or retire for value (including without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or any direct or indirect parent of the Company; (iii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness that is pari passu with or subordinated to the Notes (other than Notes), except a payment of interest or principal at Stated Maturity; or (iv) make any Restricted Payment or Investment (all such payments and other actions set aside any funds therefor forth in clauses (i) through (iv) above being collectively referred to as "Restricted Payments"), unless, at the time of and after giving effect theretoto such Restricted Payment:
(a) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof; and
(b) the Company would, at the aggregate time of such Restricted Payments for all Payment and after giving pro forma effect thereto as if such purposes subsequent Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Closing Date would not exceed Fixed Charge Coverage Ratio test set forth in the first paragraph of the covenant described below under caption "--Incurrence of Indebtedness and Issuance of Preferred Stock"; and
(c) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Subsidiaries after the date of the Indenture (excluding Restricted Payments permitted by clause (ii) and (iii) of the next succeeding paragraph), is less than the sum (as in effect from time to time, hereinafter referred to as the "Distribution Fund") of (i) 50% of the Company's Cumulative Combined Consolidated Net Income subsequent of the Company for the period (taken as one accounting period) from the beginning of the first fiscal quarter commencing after the date of the Indenture to December 31, 1991 so long as the end of the Company's Combined Tangible most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Worth Income for such period is greater than $31,051,000a deficit, less 100% of such deficit), plus (ii) 100% of the aggregate of the net cash proceeds received by the Company from any issuance the issue or sale since the date of capital shares the Indenture of Equity Interests of the Company subsequent (other than Disqualified Stock) or of Disqualified Stock or debt securities of the Company that have been converted into such Equity Interests (other than Equity Interests (or Disqualified Stock or convertible debt securities) sold to a Subsidiary of the Closing DateCompany and other than Disqualified Stock or convertible debt securities that have been converted into Disqualified Stock), and plus (iii) to the aggregate extent that any Restricted Investment that was made after the date of the Indenture is sold for cash or otherwise liquidated or repaid for cash, the lesser of (A) the cash return of capital with 42 51 respect to such Restricted Investment (less the cost of disposition, if any) and (B) the initial amount of such Restricted Investment plus (iv) if any Unrestricted Subsidiary (A) is redesignated as a Restricted Subsidiary, the fair market value of such redesignated Subsidiary (as determined in good faith by the Board of Directors) as of the date of its redesignation or (B) pays any cash dividends or cash distributions to the Company or any of its Restricted Subsidiaries, 50% of any such cash dividends or cash distributions made after the date of the Indenture. 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 the Indenture; (ii) the redemption, repurchase, retirement, defeasance or other acquisition of any pari passu or subordinated Indebtedness or Equity Interests of the Company in exchange for, or out of the net cash proceeds received of the substantially concurrent sale or issuance (other than to a Restricted Subsidiary of the Company) of, other Equity Interests of the Company (other than any Disqualified Stock); (iii) 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) the payment of any dividend by a Restricted Subsidiary of the Company to the holders of its Equity Interests on a pro rata basis; (v) Investments in any Person (other than the Company or a Wholly-Owned Restricted Subsidiary) engaged in a Permitted Business in an amount taken together with all other Investments made pursuant to this clause (v) that are at that time outstanding not to exceed $5.0 million; (vi) other Investments in Unrestricted Subsidiaries having an aggregate fair market value, taken together with all other Investments made pursuant to this clause (vi) that are at that time outstanding, not to exceed $2.0 million; (vii) payments to Holdings or Holb▇▇▇ ▇▇▇suant to the tax sharing agreement among Holb▇▇▇ ▇▇▇ other members of the affiliated corporations of which Holb▇▇▇ ▇▇ the common parent; (viii) the designation of certain of the Company's Subsidiaries as Unrestricted Subsidiaries immediately prior to the date of the Indenture; (ix) the payment of a one-time dividend or distribution by the Company from any issuance to pay fees, expenses, commissions and discounts in connection with the offering by Holdings of any Indebtedness of debt securities used to finance the Company which has been converted into capital shares of the Company subsequent to the Closing Date, which amount shall be added to the Distribution Fund only after such conversion. Notwithstanding the foregoing, the Company may acquire its own capital shares for an aggregate amount from and after the Closing date equal to the greater of Preferred Stock Contribution; (x) the sum of (i) 25% redemption in connection with the Transactions of the Cumulative Combined Net Income preferred stock of the Company subsequent to December 31, 1991, plus held by Holb▇▇▇; (ii) $500,000, or (y▇i) the amount then available under the Distribution Fundrepurchase, which amount shall be charged to the Distribution Fund. No Restricted Payment may be made in redemption or other than cash acquisition or securities which are actively traded on a nationally recognized public market and have a readily ascertainable market retirement for value (which value shall be the amount of such Restricted Payment), unless any Equity Interests of Holdings or the Company held by any member of Holdings' or the Company's (or any of their Restricted Subsidiaries) management pursuant to any management equity subscription agreement or stock option agreement or in connection with the termination of employment of any employees or management of Holdings or the Company or their Subsidiaries; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall have not exceed $2.0 million in the aggregate plus the aggregate cash proceeds received a report from an independent recognized appraiser as to by Holdings or the fair value Company after the date of the property Indenture from any reissuance of Equity Interests by Holdings or the Company to members of management of Holdings or the Company and their Restricted Subsidiaries; and (xii) other Restricted Payments in an aggregate amount not to exceed $10.0 million. The Board of Directors may designate any Restricted Subsidiary to be distributed or transferred, an Unrestricted Subsidiary if such designation would not cause a Default; provided that in which case no event shall the amount of such Restricted Payment shall be deemed to be the greater of its fair value (as determined business currently operated by such appraiser) or its net book value on the books of the Company. Notwithstanding any of the foregoing provisions of this paragraph, neither the Company nor any Subsidiary Guarantor be transferred to or Affiliate shall make any Restricted Payment if at the time or after giving effect thereto, there shall exist any Default.held by an
Appears in 1 contract
Sources: Indenture (Standard Parking Ii LLC)
Restricted Payments. Neither the The Company nor shall not, and shall not permit any of its Restricted Subsidiaries to, directly or Affiliates shall indirectly: (i) declare or pay any dividend or make any other payment or distribution on account of the Company's Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company) or to the direct or indirect holders of the Company's Equity Interests in their capacity as such (other than dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company); (ii) purchase, redeem or otherwise acquire or retire for value any Equity Interests of the Company or any direct or indirect parent or other Affiliate of the Company that is not a Subsidiary of the Company; (iii) make any principal payment on, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness that is pari passu with or subordinated to the Notes (other than the Notes), except at final maturity or in accordance with the mandatory, redemption or repayment provisions set forth in the original documentation governing such Indebtedness; or (iv) make any Restricted Payment or Investment (all such payments and other actions set aside any funds therefor forth in clauses (i) through (iv) above being collectively referred to as "Restricted Payments"), unless, at the time of and after giving effect theretoto such Restricted Payment:
(a) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof; and
(b) the Company would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 4.09 hereof; and
(c) such Restricted Payment, together with the aggregate of such all other Restricted Payments for all such purposes subsequent to made by the Closing Date would not exceed Company and its Subsidiaries after the date of this Indenture (including Restricted Payments permitted by clauses (1) and (4) of the next succeeding paragraph), is less than the sum (as in effect from time to time, hereinafter referred to as the "Distribution Fund") of (i) 50% of the Company's Cumulative Combined Consolidated Net Income subsequent of the Company for the period (taken as one accounting period) from the beginning of the first fiscal quarter commencing after November 6, 1996, to December 31, 1991 so long as the end of the Company's Combined Tangible most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Worth Income for such period is greater than $31,051,000a deficit, less 100% of such deficit), plus (ii) 100% of the aggregate of the net cash proceeds received by the Company from any issuance the issue or sale since November 6, 1996, of capital shares Equity Interests of the Company subsequent or of debt securities of the Company that have been converted into or exchanged for such Equity Interests (other than Equity Interests (or convertible debt securities) sold to a Subsidiary of the Closing DateCompany and other than Disqualified Stock or debt securities that have been converted into Disqualified Stock), and plus (iii) to the extent not otherwise included in Consolidated Net Income, the net reduction in Investments in Unrestricted Subsidiaries resulting from dividends, repayments of loans or advances, or other transfers of assets (with such assets being valued at the lesser of their fair market value (as determined in good faith by a resolution of the Board of Directors of the Company) and the Unrestricted Subsidiary's book value), in each case to the Company or a Restricted Subsidiary after the date of the Indenture from any Unrestricted Subsidiary or from the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary, plus (iv) $10 million. The foregoing provisions shall not prohibit: (1) 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; (2) 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 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; (3) the defeasance, redemption or repurchase of Subordinated Indebtedness with the net cash proceeds from an incurrence of Permitted Refinancing Debt or the substantially concurrent sale (other than to a Subsidiary of the Company) 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 redemption, repurchase, retirement or other acquisition shall be excluded from clause (c)(ii) of the preceding paragraph; (4) the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Subsidiary of the Company held by any of the Company's (or any of its Subsidiaries') management pursuant to any stock option agreement in effect as of the date of this Indenture; provided that the aggregate of price paid to all Persons, other than Stig Wennerstrom under his employment agreement as in effect on th▇ ▇▇▇▇ ▇▇ ▇▇▇▇ ▇ndenture, for all such repurchased, redeemed, acquired or retired Equity Interests shall not exceed $3 million in any twelve-month period (plus the net aggregate cash proceeds received by the Company during such twelve-month period from any issuance of any Indebtedness Equity Interests by the Company to members of management of the Company and its Subsidiaries); and provided further, that no Default or Event of Default shall have occurred and be continuing immediately after such transaction. The amount of all Restricted Payments (other than cash) shall be the fair market value (as determined by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the Trustee, which has been converted into capital shares determination shall be conclusive evidence of compliance with this provision) on the date of the Restricted Payment of the asset(s) proposed to be transferred by the Company or the applicable Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. Not later than five days after 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. The Board of Directors of the Company subsequent may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default. For purposes of making such determination, all outstanding Investments by the Company and its Restricted Subsidiaries (except to the Closing Date, which amount extent repaid in cash) in the Subsidiary so designated shall be added deemed to be Restricted Payments at the Distribution Fund only after time of such conversiondesignation and shall reduce the amount available for Restricted Payments under clause (c) of the first paragraph of this covenant. Notwithstanding the foregoing, the Company may acquire its own capital shares for All such outstanding Investments shall be deemed to constitute Investments in an aggregate amount from and after the Closing date equal to the greater greatest of (x) the sum net book value of (i) 25% such Investments at the time of the Cumulative Combined Net Income of the Company subsequent to December 31such designation, 1991, plus (ii) $500,000, or (y) the amount then available under the Distribution Fund, which amount shall be charged to the Distribution Fund. No Restricted Payment may be made in other than cash or securities which are actively traded on a nationally recognized public market and have a readily ascertainable fair market value (which value shall be the amount of such Restricted Payment), unless Investments at the Company shall have received a report from an independent recognized appraiser time of such designation (as to determined in good faith by resolution of the Board of Directors of the Company) and (z) the original fair market value of such Investments at the property to time they were made (as so determined). Such designation shall only be distributed or transferred, in which case the amount of permitted if such Restricted Payment shall would be deemed to be permitted at such time and if such Restricted Subsidiary otherwise meets the greater definition of its fair value (as determined by such appraiser) or its net book value on the books of the Company. Notwithstanding any of the foregoing provisions of this paragraph, neither the Company nor any Subsidiary or Affiliate shall make any Restricted Payment if at the time or after giving effect thereto, there shall exist any Defaultan Unrestricted Subsidiary.
Appears in 1 contract
Sources: Indenture (Forcenergy Inc)
Restricted Payments. Neither the Company Borrower nor any of its Subsidiaries shall declare or Affiliates shall make any Restricted Payment or set aside any funds therefor unlessPayment, after giving effect thereto, the aggregate of such Restricted Payments for all such purposes subsequent to the Closing Date would not exceed the sum (as in effect from time to time, hereinafter referred to as the "Distribution Fund") of except:
(i) 50% the defeasance, redemption, repurchase or prepayment of any Permitted Subordinated Indebtedness with the Company's Cumulative Combined Net Income subsequent to December 31, 1991 so long as the Company's Combined Tangible Net Worth is greater than $31,051,000, net cash proceeds of Permitted Refinancing Indebtedness;
(ii) the defeasance, redemption, repurchase or prepayment of any Permitted Subordinated Indebtedness PROVIDED the aggregate amount so defeased, redeemed, repurchased or prepaid after the Closing Date shall not exceed an amount equal to ten percent (10%) of the net cash proceeds received by the Company from any issuance or sale of capital shares of the Company subsequent to the Closing Date, and Aggregate Commitment;
(iii) in connection with the repurchase, redemption or other acquisition or retirement for value of any Equity Interests held by departing officers, directors and employees; PROVIDED, that the aggregate purchase price of all such repurchased, redeemed, acquired or retired Equity Interests shall not exceed $1,000,000 in the aggregate since the Closing Date or such larger amount as may be agreed to by the Required Lenders; and
(iv) where the consideration therefor consists solely of Equity Interests (but excluding Disqualified Stock) of the net cash proceeds received by Borrower or its Subsidiaries provided no Change of Control would occur as a result thereof; PROVIDED, HOWEVER, that the Company from any issuance of any Indebtedness of the Company which has been converted into capital shares of the Company subsequent to the Closing Date, which amount shall be added to the Distribution Fund only after such conversion. Notwithstanding the foregoing, the Company may acquire its own capital shares for an aggregate amount from and after the Closing date equal to the greater of (x) the sum of (i) 25% of the Cumulative Combined Net Income of the Company subsequent to December 31, 1991, plus (ii) $500,000, or (y) the amount then available under the Distribution Fund, which amount shall be charged to the Distribution Fund. No Restricted Payment may be made Payments described in other than cash or securities which are actively traded on a nationally recognized public market and have a readily ascertainable market value (which value shall be the amount of such Restricted PaymentCLAUSES(I), unless the Company (II) and (III) above shall not be permitted if either a Default shall have received a report from an independent recognized appraiser as to the fair value of the property to occurred and be distributed or transferred, in which case the amount of such Restricted Payment shall be deemed to be the greater of its fair value (as determined by such appraiser) or its net book value on the books of the Company. Notwithstanding any of the foregoing provisions of this paragraph, neither the Company nor any Subsidiary or Affiliate shall make any Restricted Payment if continuing at the time date of declaration or after giving effect thereto, there shall exist any Defaultpayment thereof or would result therefrom.
Appears in 1 contract
Sources: Credit Agreement (Metals Usa Inc)
Restricted Payments. Neither the The Company nor shall not, and shall not permit any of its Restricted Subsidiaries to, directly or Affiliates shall indirectly:
(1) declare or pay any dividend or make any other payment or distribution on account of the Company's Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company) or to the direct or indirect holders of the Company's Equity Interests in their capacity as such (other than dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company);
(2) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or any direct or indirect parent of the Company, in each case held by Persons other than the Company or a Restricted Subsidiary of the Company;
(3) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness that is subordinated to the Notes or the Subsidiary Guarantees, except a payment of interest or principal at the Stated Maturity thereof; or
(4) make any Restricted Payment or Investment (all such payments and other actions set aside any funds therefor forth in clauses (1) through (4) above being collectively referred to as "Restricted Payments"), unless, at the time of and after giving effect theretoto such Restricted Payment:
(1) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof; and
(2) the Company would, at the aggregate time of such Restricted Payments for all Payment and after giving pro forma effect thereto as if such purposes subsequent Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Closing Date would not exceed Fixed Charge Coverage Ratio test set forth in the sum first paragraph of Section 4.09 hereof; and
(as in effect from time to time3) such Restricted Payment, hereinafter referred to as together with the "Distribution Fund"aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after the date hereof (excluding Restricted Payments permitted by clause (2), (3) or (4) of the next succeeding paragraph), is less than the sum, without duplication, of:
(ia) 50% of the Company's Cumulative Combined Consolidated Net Income subsequent of the Company for the period (taken as one accounting period) from December 29, 2002 to December 31, 1991 so long as the end of the Company's Combined Tangible most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Worth Income for such period is greater than $31,051,000a deficit, less 100% of such deficit); plus
(iib) 100% of the aggregate of the net cash proceeds received by the Company since the date hereof as a contribution to its common equity capital or from any issuance the issue or sale of capital shares Equity Interests of the Company subsequent (other than Disqualified Stock) or from the issue or sale of Disqualified Stock or debt securities of the Company that have been converted into or exchanged for such Equity Interests (other than Equity Interests (or Disqualified Stock or debt securities) sold to a Subsidiary of the Company); plus
(c) to the Closing Dateextent that any Restricted Investment that was made after the date hereof is sold for cash or otherwise liquidated or repaid for cash, the lesser of (i) the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any) and (iiiii) the aggregate initial amount of such Restricted Investment. So long as no Default has occurred and is continuing or would be caused thereby, the preceding provisions shall not prohibit:
(1) 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;
(2) the redemption, repurchase, retirement, defeasance or other acquisition of any subordinated Indebtedness of the Company or any of its Restricted Subsidiaries or any Equity Interests of the Company or any of its Restricted Subsidiaries in exchange for, or out of the net cash proceeds received of the substantially concurrent sale (other than to a Restricted Subsidiary of the Company) 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 redemption, repurchase, retirement, defeasance or other acquisition shall be excluded from clause (3)(b) of the preceding paragraph;
(3) the redemption, repurchase, retirement, defeasance or other acquisition of subordinated Indebtedness or Disqualified Stock of the Company or any of its Restricted Subsidiaries with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness;
(4) 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 member of the Company's (or any of its Restricted Subsidiaries') management pursuant to any management equity subscription agreement or stock option agreement; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall not exceed $5.0 million in any twelve-month period.
(5) Restricted Payments in an amount not to exceed $50.0 million; provided that the amount of such Restricted Payments will be included in the calculation of the amount of Restricted Payments. 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 from any issuance or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any Indebtedness assets or securities that are required to be valued by this covenant shall be determined in good faith by the Board of Directors whose resolution with respect thereto shall be delivered to the Trustee. Not later than the date of making any Restricted Payment other than payments pursuant to paragraphs (2), (3), (4) or (5) of the Company which has been converted into capital shares of preceding paragraph, the Company subsequent shall deliver to the Closing Date, Trustee an Officers' Certificate stating that such Restricted Payment is permitted and setting forth the basis upon which amount shall be added to the Distribution Fund only after such conversioncalculations required by this Section 4.07 were computed. Notwithstanding the foregoing, if any payment is made pursuant to the second paragraph of this covenant and at the time of such payment there was a Default (other than any Default caused thereby) that had occurred and was continuing, then such payment shall not cause a Default under this covenant if the pre-existing Default shall have been cured or waived prior to such Default becoming an Event of Default. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if the designation would not cause a Default. All outstanding Investments owned by the Company may acquire and its own capital shares Restricted Subsidiaries in the designated Unrestricted Subsidiary will be treated as an Investment made at the time of the designation and will reduce the amount available for an aggregate amount from and after Restricted Payments under the Closing date first paragraph of this Section 4.07 or Permitted Investments, as applicable. All such outstanding Investments will be treated as Restricted Investments equal to the greater fair market value of (x) such Investments at the sum of (i) 25% time of the Cumulative Combined Net Income of the Company subsequent to December 31, 1991, plus (ii) $500,000, or (y) the amount then available under the Distribution Fund, which amount designation. The designation shall not be charged to the Distribution Fund. No Restricted Payment may be made in other than cash or securities which are actively traded on a nationally recognized public market and have a readily ascertainable market value (which value shall be the amount of such Restricted Payment), unless the Company shall have received a report from an independent recognized appraiser as to the fair value of the property to be distributed or transferred, in which case the amount of permitted if such Restricted Payment shall would not be deemed permitted at that time and if such Restricted Subsidiary does not otherwise meet the definition of an Unrestricted Subsidiary. The Board of Directors may redesignate any Unrestricted Subsidiary to be the greater of its fair value (as determined by such appraiser) or its net book value on the books of the Company. Notwithstanding any of the foregoing provisions of this paragraph, neither the Company nor any a Restricted Subsidiary or Affiliate shall make any Restricted Payment if at the time or after giving effect thereto, there shall exist any that redesignation would not cause a Default.
Appears in 1 contract
Sources: Indenture (Scotts Company)
Restricted Payments. Neither the Company nor Declare or make, directly or indirectly, any of its Subsidiaries Restricted Payment, or Affiliates shall incur any obligation (contingent or otherwise) to make any Restricted Payment Payment, other than:
(a) so long as no Default or set aside any funds therefor unlessEvent of Default has occurred and shall then be continuing or result therefrom, after giving effect theretoPermitted Tax Distributions;
(b) Restricted Payments made to Borrower or to Restricted Subsidiaries of Borrower;
(c) the release of up to an aggregate amount equal to the Condo Proceeds Amount of Net Cash Proceeds from the Disposition of Condo Units or Seller Notes to MGM Resorts to the extent that the conditions in the proviso to Section 2.03(b)(1) have been satisfied;
(d) so long as no Default or Event of Default has occurred and shall then be continuing or result therefrom, the aggregate reimbursement of such Restricted Payments the Sponsors or their wholly-owned Subsidiaries for all such purposes subsequent to the Closing Date would not exceed the sum (as in effect from time to time, hereinafter referred to as the "Distribution Fund") of (i) 50% of the Company's Cumulative Combined Net Income subsequent to December 31, 1991 so long as the Company's Combined Tangible Net Worth is greater than $31,051,000Construction Resolution Date shall have occurred, the MGM Completion Guarantee Reimbursement Amount and (ii) their ▇▇▇▇▇▇ Equity in an amount up to the aggregate lesser of (1) $50,000,000 and (2) the original amount of the net cash proceeds received by ▇▇▇▇▇▇ Equity;
(e) Restricted Payments made within 120 days following the Company from any issuance or sale of capital shares of the Company subsequent to the Closing Date, and (iii) the aggregate of the net cash proceeds received by the Company from any issuance receipt of any Indebtedness of the Company which has been converted into capital shares of the Company subsequent to the Closing Date, which amount shall be added to the Distribution Fund only after such conversion. Notwithstanding the foregoing, the Company may acquire its own capital shares for an aggregate amount from and after the Closing date equal to the greater of (x) the sum of (i) 25% of the Cumulative Combined Net Income of the Company subsequent to December 31, 1991, plus (ii) $500,000, or (y) the amount then available under the Distribution Fund, which amount shall be charged to the Distribution Fund. No Restricted Payment may be made Extraordinary Receipts in other than cash or securities which are actively traded on a nationally recognized public market and have a readily ascertainable market value (which value shall be the amount of Extraordinary Receipts to the extent applied to the retirement of any Casualty Bridge Capital, provided that giving effect to such Restricted Payment), unless the Company no Default or Event of Default shall have received a report from an independent recognized appraiser as to occurred and be continuing; and
(f) the fair value payment, redemption, repurchase, retirement, defeasance or other acquisition of the property to be distributed or transferred, Sponsor Subordinated Debt complying with Section 7.12(d) and solely in which case the amount exchange for common Equity Interests of such Restricted Payment shall be deemed to be the greater of its fair value (as determined by such appraiser) or its net book value on the books of the Company. Notwithstanding any of the foregoing provisions of this paragraph, neither the Company nor any Subsidiary or Affiliate shall make any Restricted Payment if at the time or after giving effect thereto, there shall exist any DefaultBorrower.
Appears in 1 contract
Restricted Payments. Neither the Company nor Classic will not, and will not permit any of its Restricted Subsidiaries to, directly or Affiliates shall indirectly:
(1) declare or pay any dividend or make any other payment or distribution on account of Classic's or any of its Restricted Subsidiaries' Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving Classic or any of its Restricted Subsidiaries) or to the direct or indirect holders of Classic's or any of its Restricted Subsidiaries' Equity Interests in their capacity as such (other than dividends or distributions payable in Equity Interests (other than Disqualified Stock) of Classic or to Classic or a Restricted Subsidiary of Classic);
(2) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving Classic) any Equity Interests of Classic or any direct or indirect parent of Classic;
(3) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness that is subordinated to the Notes or the Note Guarantees, except a payment of interest or principal at the Stated Maturity thereof; or
(4) make any Restricted Payment or Investment (all such payments and other actions set aside any funds therefor forth in clauses (1) through (4) above being collectively referred to as "Restricted Payments"), 45 52 unless, at the time of and after giving effect theretoto such Restricted Payment:
(1) no Default or Event of Default has occurred and is continuing or would occur as a consequence thereof; and
(2) Classic would, at the aggregate time of such Restricted Payments for all Payment and after giving pro forma effect thereto as if such purposes subsequent Restricted Payment had been made at the beginning of the applicable three-month period, have been permitted to incur at least $1.00 of additional Indebtedness (other than Permitted Debt) pursuant to the Closing Date would not exceed Debt to Cash Flow Ratio test set forth in the sum first paragraph of Section 4.09 hereof; and
(as in effect from time to time3) such Restricted Payment, hereinafter referred to as together with the "Distribution Fund"aggregate amount of all other Restricted Payments declared or made after the date of this Indenture (excluding Restricted Payments permitted by clauses (2), (3) and (4) of the next succeeding paragraph) shall not exceed, at the date of determination, the sum, without duplication, of:
(ia) 50% an amount equal to Classic's Consolidated Cash Flow from the date hereof to the end of Classic's most recently ended three-month period for which internal financial statements are available, taken as a single accounting period, less the Companyproduct of 1.4 times Classic's Cumulative Combined Net Income subsequent Consolidated Interest Expense from the date of this Indenture to December 31the end of Classic's most recently ended three-month period for which internal financial statements are available, 1991 so long taken as the Company's Combined Tangible Net Worth is greater than $31,051,000, a single accounting period; plus
(iib) the aggregate of an amount equal to the net cash proceeds received by Classic from the Company sale of Equity Interests after the date of this Indenture (other than (i) sales of Disqualified Stock, (ii) Equity Interests sold to any of Classic's Subsidiaries, (iii) Equity Interests sold in the Private Equity Sale and (iv) Equity Interests that are applied to make a Permitted Investment pursuant to clause (10) of the definition of Permitted Investments) or from any issuance the issue or sale of capital shares convertible or exchangeable Disqualified Stock or convertible or exchangeable debt securities of the Company subsequent Classic that have been converted into or exchanged for such Equity Interests (other than Equity Interests (or Disqualified Stock or debt securities) sold to a Subsidiary of Classic); plus
(c) to the Closing Dateextent that any Restricted Investment that was made after the date of this Indenture is sold for cash or otherwise liquidated or repaid for cash, the lesser of: (i) the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any); and (iiiii) the aggregate initial amount of such Restricted Investment. The preceding provisions will not prohibit:
(1) so long as no Default has occurred and is continuing or would be caused thereby, the payment of any dividend or distribution within 60 days after the date of declaration thereof, if at the date of declaration such payment would have complied with the provisions of this Indenture;
(2) the redemption, repurchase, retirement, defeasance or other acquisition of any subordinated Indebtedness of Classic or any Guarantor or of any Equity Interests of Classic in exchange for, or out of the net cash proceeds received of the substantially concurrent sale (other than to a Subsidiary of Classic or an employee stock ownership plan or to a trust established by Classic or any Subsidiary of Classic for the Company from any issuance benefit of its employees) of, Equity Interests of Classic (other than Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such redemption, repurchase, retirement, defeasance or other acquisition will be excluded from clause (3)(b) of the preceding paragraph;
(3) the defeasance, redemption, repurchase or other acquisition of subordinated Indebtedness of Classic or any Guarantor with the Company which net cash proceeds from an incurrence of Permitted Refinancing Indebtedness;
(4) the payment of any dividend by a Restricted Subsidiary of Classic to the holders of its Equity Interests on a pro rata basis; and
(5) so long as no Default has been converted into capital shares occurred and is continuing or would be caused thereby, the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of Classic or any Restricted Subsidiary of Classic held by any member of Classic's (or any of its Restricted Subsidiaries') management pursuant to any management equity subscription agreement or stock option agreement in effect as of the Company subsequent to date of this Indenture; provided that the Closing Dateaggregate price paid for all such repurchased, which redeemed, acquired or retired Equity Interests shall not exceed $250,000 in any twelve-month period. The amount shall be added to the Distribution Fund only after such conversion. Notwithstanding the foregoing, the Company may acquire its own capital shares for an aggregate amount from and after the Closing date equal to the greater of all Restricted Payments (x) the sum of (i) 25% of the Cumulative Combined Net Income of the Company subsequent to December 31, 1991, plus (ii) $500,000, or (y) the amount then available under the Distribution Fund, which amount shall be charged to the Distribution Fund. No Restricted Payment may be made in other than cash or securities which are actively traded on a nationally recognized public market and have a readily ascertainable market value (which value cash) shall be the amount 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 Classic or such Restricted Payment)Subsidiary, unless as the Company shall have received a report from an independent recognized appraiser as case may be, pursuant to the Restricted Payment. The fair market value of the property any assets or securities that are required to be distributed valued by this covenant will be determined by Classic's Board of Directors whose resolution with respect thereto shall be delivered to the Trustee. The Board of Directors' determination must be based upon an opinion or transferredappraisal issued by an accounting, in which case appraisal or investment banking firm of national standing if the amount fair market value exceeds $5.0 million. Not later than the date of making any Restricted Payment, Classic will deliver to the Trustee an Officers' Certificate stating that such Restricted Payment shall be deemed to be is permitted and setting forth the greater basis upon which the calculations required by this Section 4.07 were computed, together with a copy of its fair value (as determined any fairness opinion or appraisal required by such appraiser) or its net book value on the books of the Company. Notwithstanding any of the foregoing provisions of this paragraph, neither the Company nor any Subsidiary or Affiliate shall make any Restricted Payment if at the time or after giving effect thereto, there shall exist any DefaultIndenture.
Appears in 1 contract
Restricted Payments. Neither the Company nor The Enterprise shall not, and shall not permit any of its Restricted Subsidiaries to, directly or Affiliates indirectly:
(1) declare or pay any dividend or make any other payment or distribution on account of the Enterprise's or any Restricted Subsidiary's Equity Interests or to the direct or indirect Holders of the Enterprise's or any Restricted Subsidiaries' Equity Interests in their capacity as such (other than dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Enterprise or dividends or distributions payable to the Enterprise or a Restricted Subsidiary);
(2) purchase, redeem or otherwise acquire or retire for value any Equity Interests of the Enterprise held by the Tribe or any Affiliate of the Tribe;
(3) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value, any Indebtedness that is subordinated to the Notes or any Subsidiary Guarantee, except a payment of interest or principal at the Stated Maturity thereof;
(4) make any payment or distribution to the Tribe (or any agency, instrumentality or political subdivision thereof) or make any general distribution to the members of the Tribe, other than Permitted Payments and the Annual Service Payment; PROVIDED that in any calendar month only one-twelfth of the Annual Service Payment shall be permitted to be distributed; PROVIDED FURTHER that the foregoing proviso in this clause (4) shall not prohibit the distribution in any calendar month of that portion of the Annual Service Payment that such foregoing proviso would have permitted to be distributed in any prior calendar month but that was not so distributed; or
(5) make any Restricted Payment or Investment; (all payments and other actions set aside any funds therefor forth in clauses (1) through (5) being collectively referred to as "RESTRICTED PAYMENTS") unless, at the time of and after giving effect theretoto the Restricted Payment:
(a) no Default or Event of Default has occurred and is continuing or would occur as a result thereof;
(b) the Enterprise would, at the time of the Restricted Payment and after giving pro forma effect thereto as if the Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least
$1. 00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 4.09 hereof; and
(c) the Restricted Payment, together with the aggregate amount of such all other Restricted Payments for all such purposes subsequent to made by the Closing Date would not exceed Enterprise and its Restricted Subsidiaries after the sum date hereof (as in effect from time to time, hereinafter referred to as the "Distribution Fund"excluding Restricted Payments permitted by clauses (1) and (2) of the next succeeding paragraph), is less than the sum, without duplication, of:
(i) 50% of the Company's Cumulative Combined Consolidated Net Income subsequent of the Enterprise for the period (taken as one accounting period) from the beginning of the fiscal quarter commencing on January 1, 2001 to December 31the end of its most recently ended fiscal quarter for which internal financial statements are available at the time of the Restricted Payment (or, 1991 so long as the Company's Combined Tangible if such Consolidated Net Worth Income for this period is greater than $31,051,000a deficit, LESS 100% of this deficit); PLUS
(ii) 100% of the aggregate net cash received by the Enterprise since the date hereof as a contribution to the Enterprise's common equity capital or from the issue or sale of Equity Interests of the Enterprise (other than Disqualified Stock) or from the issue or sale of convertible or exchangeable debt securities of the Enterprise that have been converted into or exchanged for Equity Interests of the Enterprise (other than Equity Interests (or Disqualified Stock or debt securities) sold to a Subsidiary); PLUS
(iii) to the extent that any Restricted Investment that was made after the date hereof is sold, liquidated or repaid for cash, the lesser of (a) the cash return of capital with respect to that Restricted Investment (less the cost of disposition, if any) and (b) the initial amount of that Restricted Investment; PLUS
(iv) to the extent that any Subsidiary that was designated as an Unrestricted Subsidiary after the date hereof is redesignated as a Restricted Subsidiary, the lesser of (a) the amount of the Investment in the Subsidiary treated as a Restricted Payment at and since the time that the Subsidiary was designated as an Unrestricted Subsidiary, as determined by the last paragraph of this Section 4.07 and (b) the fair market value of the Investment in the Subsidiary as of the date that it is redesignated as a Restricted Subsidiary; PLUS
(v) $75.0 million. So long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the preceding provisions shall not prohibit:
(1) the redemption, repurchase, retirement, defeasance or other acquisition of subordinated Indebtedness of the Enterprise or any of its Restricted Subsidiaries or of any Equity Interests of the Enterprise in exchange for, or out of the net cash proceeds received by the Company from any issuance of, a substantially concurrent capital contribution or sale of capital shares (other than to a Subsidiary) of, other Equity Interests of the Company subsequent to Enterprise (other than Disqualified Stock); PROVIDED that the Closing Date, and (iii) the aggregate amount of the net cash proceeds received by that are utilized for any redemption, repurchase, retirement, defeasance or other acquisition shall be excluded from clause (c) above; and
(2) the Company from any issuance defeasance, redemption, repurchase or other acquisition of any subordinated Indebtedness of the Company which has been converted into capital shares Enterprise or any Subsidiary Guarantor with the net cash proceeds from an incurrence of the Company subsequent to the Closing DatePermitted Refinancing Indebtedness. The amount of all Restricted Payments, which amount shall be added to the Distribution Fund only after such conversion. Notwithstanding the foregoing, the Company may acquire its own capital shares for an aggregate amount from and after the Closing date equal to the greater of (x) the sum of (i) 25% of the Cumulative Combined Net Income of the Company subsequent to December 31, 1991, plus (ii) $500,000, or (y) the amount then available under the Distribution Fund, which amount shall be charged to the Distribution Fund. No Restricted Payment may be made in other than cash or securities which are actively traded on a nationally recognized public market and have a readily ascertainable market value (which value cash, shall be the amount of such Restricted Payment), unless the Company shall have received a report from an independent recognized appraiser as to the fair value of the property to be distributed or transferred, in which case the amount of such Restricted Payment shall be deemed to be the greater of its fair value (as determined by such appraiser) or its net book market value on the books date of the CompanyRestricted Payment of the asset(s) or securities proposed to be transferred or issued to or by the Enterprise or the Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any assets or securities that are required to be valued pursuant to this Section 4.07 shall be determined by a majority of the Enterprise's Board of Directors whose resolution with respect thereto shall be delivered to the Trustee. The Enterprise's Board of Directors' determination must be based upon an opinion or appraisal issued by an accounting, appraisal or investment banking firm of national standing if the fair market value exceeds $10.0 million. Not later than the date of making any Restricted Payment, the Enterprise shall deliver to the Trustee an Officers' Certificate stating that the 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. Notwithstanding any of the foregoing foregoing, at any time after the hotel and casino facilities at the Golden Moon have been open and fully operational for 180 consecutive days, if:
(1) no Default or Event of Default has occurred and is continuing,
(2) no Indebtedness of the Enterprise (other than the Notes to be issued on the date hereof and the Exchange Notes to be issued pursuant to the Registration Rights Agreement) is outstanding, except for Indebtedness not to exceed $75 million in the aggregate and otherwise permitted by the provisions of Section 4.09 hereof,
(3) Consolidated Cash Flow of the Enterprise for the Enterprise's most recently ended four full fiscal quarters (taken as one accounting period) for which internal financial statements are available is at least $150.0 million, and
(4) the ratings of the Notes (and the Exchange Notes) by each of ▇▇▇▇▇'▇ and S&P are equal to or higher than the respective ratings of the Notes by each of such rating agencies on the date hereof, then the provisions preceding this paragraphsentence in this Section 4.07 (the "SUSPENDED COVENANT") shall no longer be applicable to the Notes from and after such time; PROVIDED, neither HOWEVER, that if at any time thereafter any of the Company nor any Subsidiary or Affiliate criteria set forth in clauses (1) through (4) above in this sentence ceases to be satisfied, the Suspended Covenant shall make any be automatically reinstated (the "REINSTATED COVENANT") and all transactions by the Enterprise and its Restricted Payment if Subsidiaries that occurred during the time that such covenant was suspended and that would have violated such covenant had such covenant been in effect at the time shall be deemed not to constitute a Default or an Event of Default, as the case may be, and shall be deemed to have been in compliance with such covenant for all purposes; PROVIDED FURTHER that thereafter all transactions by the Enterprise and its Restricted Subsidiaries occurring on or after giving effect thereto, there the date on which the Suspended Covenant has been reinstated shall exist any Default.be required to be in compliance with the Reinstated Covenant and the
Appears in 1 contract
Sources: Indenture (Mississippi Band of Choctaw Indians Dba Choctaw RSRT DVLP E)
Restricted Payments. Neither the Company nor (A) The Issuer shall not, and shall not permit any of its the Restricted Subsidiaries to, directly or Affiliates shall indirectly:
(i) declare or pay any dividend or make any other payment or distribution on account of the Issuer's or to the direct or indirect holders of the Issuer's Equity Interests or to the direct or indirect holders of the Issuer's Equity Interests in their capacity as stockholders (other than dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Issuer);
(ii) purchase, redeem or otherwise acquire or retire for value any Equity Interests of the Issuer or any direct or indirect parent of the Issuer (other than any such Equity Interests owned by the Issuer or any Restricted Subsidiary);
(iii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Subordinated Indebtedness, except for scheduled payments of interest or principal; or
(iv) make any Restricted Payment or Investment (all such payments and other actions set aside any funds therefor forth in clauses (i) through (iv) above being collectively referred to as "Restricted Payments"), unless, :
(a) at the time of and after giving effect theretoto such Restricted Payment, no Default shall have occurred and be continuing or would occur as a consequence thereof;
(b) the aggregate Issuer would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to Section 8.04(a); and
(c) such Restricted Payment, together with the aggregate amount of all other Restricted Payments for all such purposes subsequent to made by the Issuer and the Restricted Subsidiaries on or after the Closing Date would not exceed Time, is less than the sum (as in effect from time to timesum, hereinafter referred to as the "Distribution Fund") of without duplication, of
(i) 50the amount of the Issuer's (x) Cumulative Consolidated Cash Flow determined at the time of such Restricted Payment less (y) 150% of the Company's Cumulative Combined Net Income subsequent cumulative Consolidated Interest Expense, determined for the period commencing on January 1, 2000 and ending on the last day of the last fiscal quarter preceding the date on which such Restricted Payment is to December 31be made for which financial statements are available, 1991 so long as the Company's Combined Tangible Net Worth is greater than $31,051,000, plus
(ii) 80% of the aggregate Net Cash Proceeds and Fair Market Value of the net cash proceeds any other consideration received by the Company Issuer or any Restricted Subsidiary on and after the Closing Time from any issuance the issue or sale of capital shares Qualified Equity Interests of the Company subsequent Issuer or from the issue or sale of Disqualified Stock or Indebtedness of the Issuer or a Restricted Subsidiary that has been converted or exchanged into such Equity Interests (other than any such Disqualified Stock or converted or exchanged Indebtedness sold to and held by a Restricted Subsidiary), plus the Closing Dateamount of Net Cash Proceeds and Fair Market Value of any other consideration received by the Issuer or any Restricted Subsidiary upon such conversion or exchange, and plus
(iii) the aggregate of amount equal to the net cash proceeds received by the Company from any issuance of any Indebtedness of the Company which has been converted into capital shares of the Company subsequent to the Closing Date, which amount shall be added to the Distribution Fund only after such conversion. Notwithstanding the foregoing, the Company may acquire its own capital shares for an aggregate amount from and reduction in Restricted Investments in Unrestricted Subsidiaries on or after the Closing date equal Time resulting from (x) dividends, distributions, interest payments, return of capital, repayments of Restricted Investments or other transfers of assets to the greater Issuer or any Restricted Subsidiary from any Unrestricted Subsidiary, (y) proceeds realized by the Issuer or any Restricted Subsidiary upon the sale of such Restricted Investment to a Person other than the Issuer or any Subsidiary of the Issuer, or (z) the redesignation of any Unrestricted Subsidiary as a Restricted Subsidiary, not to exceed in the case of any of the immediately preceding clauses (x), (y) or (z) the aggregate amount of Restricted Investments made by the Issuer or any Restricted Subsidiary in such Unrestricted Subsidiary on or after the Closing Time, plus
(iv) to the extent that any Restricted Investment that was made on or after the Closing Time is sold for cash or otherwise liquidated or repaid for cash, the lesser of, to the extent paid to the Issuer or a Restricted Subsidiary, (A) the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any) and (B) the initial amount of such Restricted Investment, minus
(v) 80% in the event of a Restricted Payment prior to the occurrence of an IPO Liquidity Event or 64% in the event of a Restricted Payment on or after the occurrence of an IPO Liquidity Event of the aggregate principal amount of any outstanding Indebtedness incurred and outstanding pursuant to Section 8.04(b)(ii).
(B) The foregoing provisions shall not prohibit
(i) the payment of any dividend within 60 days after the date of declaration thereof, if at the date of declaration such payment would have complied with the foregoing provisions;
(ii) the redemption, repurchase, retirement, defeasance or other acquisition of any Subordinated Indebtedness or Equity Interests of the Issuer in exchange for, or out of the Net Cash Proceeds of the substantially concurrent sale (other than to a Subsidiary of the Issuer) of, Qualified Equity Interests of the Issuer; provided that the amount of any such Net Cash Proceeds that are utilized for, and the Equity Interests issued or exchanged for, any such redemption, repurchase, retirement, defeasance or other acquisition shall be excluded from clause (c) of Section 8.02(A) and clause (v) of this Section 8.02(B);
(iii) the defeasance, redemption, retirement, repurchase or other acquisition of Subordinated Indebtedness with the Net Cash Proceeds from, or issued in exchange for, a substantially concurrent incurrence of Permitted Refinancing Indebtedness; pro- vided that the amount of any Net Cash Proceeds that are utilized for any such defeasance, redemption, retirement, repurchase or other acquisition shall be excluded from clause (c) of Section 8.02(A);
(iv) the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Issuer held by any employee or former employee (or his or her spouse or other immediate family, decedent, estate, trust for the benefit of any member of his or her immediate family or other legal representative) of the Issuer or a Restricted Subsidiary upon such employee's death, disability or termination for cause or in connection with the Issuer's relocation to the San Francisco Data Center; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall not exceed $2.5 million in any fiscal year; provided, further, amounts unutilized in any fiscal year may be carried forward for up to two additional years;
(v) so long as no Default has occurred and is continuing, Restricted Investments not to exceed an amount (measured on the date each such Restricted Investment was made), when taken together with all other Restricted Investments made pursuant to this clause (v) that are at the time outstanding, the sum of (x) the sum of (i) 25% of the Cumulative Combined Net Income of the Company subsequent to December 31, 1991$5.0 million, plus (ii) $500,000, or (y) the amount then available for the making of Restricted Payments pursuant to Section 8.02(A)(c) without giving effect to subclause (i) thereof and treating, for this purpose, the 80% in subclause (ii) thereof as 100%, the 100% in subclause (v) as 80% and the 80% in subclause (v) as 64%;
(vi) Restricted Investments in Persons engaged in a Permitted Business or that will make investments in any such Persons not to exceed $5.0 million outstanding at any time;
(vii) the repurchase of Equity Interests of the Issuer in accordance with rights of appraisal under applicable law; and
(viii) payments of cash in lieu of fractional shares upon the Distribution Fundexercise of warrants, which amount options and other rights to purchase Capital Stock of the Issuer. Each Restricted Payment permitted pursuant to clauses (i), (iv), (v) and (vi) above shall be charged included, and each Restricted Payment permitted pursuant to clauses (ii) and (iii) above shall be excluded (except as specifically set forth in each such clause), for all purposes when performing the calculation set forth in clause (c) of Section 8.02(A).
(C) The Board of Directors may not designate any Subsidiary of the Issuer (other than a newly created Subsidiary in which no Investment has previously been made (other than any de minimis amount not to exceed $25,000 required to capitalize such Subsidiary in connection with its organization)) as an Unrestricted Subsidiary (a "Designation") un- -----------
(i) no Default or Event of Default shall have occurred and be continuing at the time of or after giving effect to such Designation and (ii) the Issuer would not be prohibited under this Agreement from making a Restricted Investment at the time of such Designation (assuming the effectiveness of such Designation for purposes of this Section 8.02) in an amount equal to the Distribution Fund. No Restricted Payment may be made in other than cash or securities which are actively traded on a nationally recognized public market and have a readily ascertainable market value (which value shall be the amount of such Restricted Payment), unless the Company shall have received a report from an independent recognized appraiser as to the fair value Fair Market Value of the property to be distributed or transferrednet Investment of the Issuer and all Restricted Subsidiaries in such Subsidiary on such date (the "Designation Amount"). ------------------
(D) In the event of any such Designation, all outstanding Investments owned by the Issuer and the Restricted Subsidiaries in which case the amount of such Restricted Payment shall Subsidiary so designated will be deemed to be a Restricted Investment made as of the greater time of its fair value (as determined by such appraiserDesignation in the Designation Amount and will reduce the amount available for Restricted Payments under Section 8.02(A)(iv)(c) or its net book value on (B) (v) by the books Designation Amount in accordance with the terms of such provisions. All such outstanding Investments will be deemed to constitute Restricted Payments in an amount equal to the Company. Notwithstanding any Fair Market Value of the foregoing provisions of this paragraph, neither the Company nor any Subsidiary or Affiliate shall make any Restricted Payment if such Investments at the time or after giving effect thereto, there shall exist any Default.of such Designation. A Designation may be revoked and an Unrestricted Subsidiary may thus be redesignated as a Restricted Subsidiary (a "
Appears in 1 contract
Sources: Purchase Agreement (Intira Corp)
Restricted Payments. Neither the The Company nor shall not, and shall not permit any of its Restricted Subsidiaries to, directly or Affiliates shall indirectly, (i) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or any of its Restricted Subsidiaries (other than any such Equity Interests owned by the Company or any of its Restricted Subsidiaries); (ii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value, any Indebtedness that is subordinated in right of payment to the Notes or the Subsidiary Guarantees, as the case may be, except a payment of interest or principal at Stated Maturity; or (iii) make any Restricted Payment or Investment (all such payments and other actions set aside any funds therefor forth in clauses (i) through (iii) above being collectively referred to as “Restricted Payments”), unless, at the time of and after giving effect theretoto such Restricted Payment:
(a) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof;
(b) the Company would, at the aggregate time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Coverage Ratio test set forth in Section 4.09 hereof; and
(c) such Restricted Payment, together with (x) the aggregate amount of all other Restricted Payments for made by the Company and its Restricted Subsidiaries after the Issue Date (excluding Restricted Payments permitted by clauses (b) through (e) and, to the extent deducted in computing Consolidated Net Income, (f) and (g) of the next succeeding paragraph), and (y) the aggregate amount of all such purposes dividends and other payments or distributions paid subsequent to the Closing Issue Date would on account of the Company’s or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any such payment in connection with any merger or consolidation involving the Company) or to the direct or indirect holders of the Company’s Equity Interests in their capacity as such (other than (i) dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company, (ii) dividends or distributions payable to the Company or any of its Restricted Subsidiaries or (iii) if the Restricted Subsidiary making such dividend is not exceed a Wholly Owned Restricted Subsidiary, dividends to its shareholders on a pro rata basis), is less than the sum (as in effect from time to time, hereinafter referred to as the "Distribution Fund"without duplication) of the following: (iA) 50% of the Company's Cumulative Combined Net Income subsequent to December 31, 1991 so long as the Company's Combined Tangible Net Worth is greater than $31,051,000, (ii) the aggregate of the net cash proceeds received by the Company from any issuance or sale of capital shares of the Company subsequent to the Closing Date, and (iii) the aggregate of the net cash proceeds received by the Company from any issuance of any Indebtedness of the Company which has been converted into capital shares of the Company subsequent to the Closing Date, which amount shall be added to the Distribution Fund only after such conversion. Notwithstanding the foregoing, the Company may acquire its own capital shares for an aggregate amount from and after the Closing date equal to the greater of (x) the sum of (i) 25% of the Cumulative Combined cumulative Consolidated Net Income of the Company subsequent to December 31, 1991, plus for the period (iitaken as one accounting period) $500,000, or (y) from the amount then available under first day of first fiscal quarter following the Distribution Fund, which amount shall be charged Issue Date to the Distribution Fund. No Restricted Payment may be made in other than cash or securities which are actively traded on a nationally recognized public market and have a readily ascertainable market value (which value shall be the amount of such Restricted Payment), unless the Company shall have received a report from an independent recognized appraiser as to the fair value end of the property to be distributed or transferred, in Company’s most recently ended fiscal quarter for which case internal financial statements are available at the amount time of such Restricted Payment shall be deemed (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit), plus (B) 100% of the aggregate of (1) the net cash proceeds and (2) the fair market value of Strategic Assets transferred or conveyed to be the greater of its fair value Company (as determined by such appraiser) or its net book value on the books of the Company. Notwithstanding any of the foregoing provisions of this paragraph, neither the Company nor any Subsidiary or Affiliate shall make any Restricted Payment if valued at the time of transfer or conveyance to the Company, and as determined in the manner contemplated by the definition of the term “fair market value”), in each case received by the Company since the Issue Date as a contribution to its common equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified Stock) or from the issuance or sale of Disqualified Stock or debt securities of the Company that have been converted into, or exchanged or redeemed for, such Equity Interests (other than any such Equity Interests, Disqualified Stock or convertible debt securities sold to a Restricted Subsidiary of the Company and other than Disqualified Stock or convertible debt securities that have been converted into, or exchanged or redeemed for, Disqualified Stock), plus (C) to the extent that any Restricted Investment that was made after giving effect theretothe Issue Date is sold for cash or otherwise liquidated or repaid for cash, there shall exist any Default.the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any) plus
Appears in 1 contract
Sources: Indenture
Restricted Payments. Neither the The Company nor shall not, and shall not permit any of its Subsidiaries to, directly or Affiliates shall indirectly: (i) declare or pay any dividend or make any other payment or distribution on account of the Company's or any of its Subsidiaries' Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company or any of its Subsidiaries) or to the direct or indirect holders of the Company's or any of its Subsidiaries' Equity Interests in their capacity as such (other than dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company or to the Company or a Subsidiary of the Company); (ii) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or any direct or indirect parent of the Company or other Affiliate of the Company (other than any such Equity Interests owned by the Company or any Wholly Owned Subsidiary of the Company); (iii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness that is subordinated to the Notes (other than Notes), except a payment of interest or principal at Stated Maturity and reasonable fees and expenses incurred in connection therewith; or (iv) make any Restricted Payment or Investment (all such payments and other actions set aside any funds therefor forth in clauses (i) through (iv) above being collectively referred to as "Restricted Payments"), unless, at the time of and after giving effect theretoto such Restricted Payment:
(a) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof; and
(b) the Company would, at the aggregate time of such Restricted Payments for all Payment and after giving pro forma effect thereto as if such purposes subsequent Restricted Payment had been made at the beginning of the two most recent fiscal quarters ending immediately prior to the Closing Date would not exceed date of such Restricted Payment for which financial statements are available, have been permitted to incur at least $1.00 of additional Indebtedness (other than Permitted Debt) pursuant to the sum Debt to Cash Flow Ratio test set forth in the first paragraph of Section 4.09; and
(as in effect from time to timec) such Restricted Payment, hereinafter referred to as together with the "Distribution Fund"aggregate amount of all other Restricted Payments made by the Company and its Subsidiaries after the date of this Indenture (excluding Restricted Payments permitted by clauses (ii), (iii) and (iv) of the next succeeding paragraph), is less than the sum, without duplication, of (i) 50% of the Company's Cumulative Combined Consolidated Net Income subsequent of the Company for the period (taken as one accounting period) from the beginning of the first fiscal quarter commencing after the date of this Indenture to December 31, 1991 so long as the end of the Company's Combined Tangible most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Worth Income for such period is greater than $31,051,000a deficit, less 100% of such deficit), plus (ii) 100% of the aggregate of the net cash proceeds received by the Company since the date of this Indenture as a contribution to its common equity capital or from any issuance the issue or sale of capital shares Equity Interests of the Company subsequent (other than Disqualified Stock) or from the issue or sale of Disqualified Stock or debt securities of the Company that have been converted into such Equity Interests (other than Equity Interests (or Disqualified Stock or convertible debt securities) sold to a Subsidiary of the Closing DateCompany), and plus (iii) to the aggregate extent that any Restricted Investment that was made after the date of this Indenture is sold for cash or otherwise liquidated or repaid for cash, the lesser of (A) the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any) and (B) the initial amount of such Restricted Investment. So long as no Default has occurred and is continuing or would be caused thereby, the foregoing provisions shall 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 pari passu or subordinated Indebtedness or Equity Interests of the Company in exchange for, or out of the net cash proceeds received of the substantially concurrent sale (other than to a 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 or other acquisition of pari passu or subordinated Indebtedness with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness; (iv) the payment of any dividend by a Subsidiary of the Company to the holders of its common Equity Interests on a pro rata basis; (v) Investments by the Company from or any issuance of its Subsidiaries in any Permitted Joint Venture; provided that the aggregate Fair Market Value of all such Investments does not exceed $5.0 million at any one time outstanding (with the Fair Market Value of each Investment being measured at the time made and without giving effect to subsequent changes in value); (vi) the repurchase, redemption or other acquisition or retirement for value of any Indebtedness Equity Interests of the Company which has been converted into capital shares or any Subsidiary of the Company held by any employee or any member of the Company's (or any of its Subsidiaries') management pursuant to any management or employee equity subscription or purchase agreement or stock option agreement in effect as of the date of this Indenture; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall not exceed $500,000 in any twelve-month period; and (vii) additional Investments having an aggregate Fair Market Value, taken together with all other Investments made pursuant to this clause (vii) that are at the time outstanding, not exceeding $2.0 million (with the Fair Market Value of each Investment being measured at the time made and without giving effect to subsequent changes in value). Except to the Closing Date, which amount shall be added extent specifically provided to the Distribution Fund only after such conversion. Notwithstanding the foregoingcontrary herein, the Company may acquire its own capital shares for an aggregate amount from and after the Closing date equal to the greater of all Restricted Payments (x) the sum of (i) 25% of the Cumulative Combined Net Income of the Company subsequent to December 31, 1991, plus (ii) $500,000, or (y) the amount then available under the Distribution Fund, which amount shall be charged to the Distribution Fund. No Restricted Payment may be made in other than cash or securities which are actively traded on a nationally recognized public market and have a readily ascertainable market value (which value cash) shall be the amount Fair Market Value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company or such Subsidiary, as the case may be, pursuant to the Restricted Payment), unless the Company shall have received a report from an independent recognized appraiser as to the fair value . The Fair Market Value of the property to be distributed or transferred, in which case the amount of such Restricted Payment shall be deemed to be the greater of its fair value (as determined by such appraiser) or its net book value on the books of the Company. Notwithstanding any of the foregoing provisions of this paragraph, neither the Company nor any Subsidiary or Affiliate shall make any Restricted Payment if at the time or after giving effect thereto, there shall exist any Default.assets
Appears in 1 contract
Sources: Indenture (Park N View Inc)
Restricted Payments. Neither the (a) The Company nor shall not, and shall not permit any of its Restricted Subsidiaries to, directly or Affiliates shall indirectly:
(1) declare or pay any dividend or make any other payment or distribution on account of the Company’s or any of its Restricted Subsidiaries’ Equity Interests (including any such payment in connection with any merger or consolidation involving the Company) or to the direct or indirect holders of the Company’s Equity Interests in their capacity as such (other than dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company);
(2) purchase, redeem or otherwise acquire or retire for value (including without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company (other than any such Equity Interests owned by the Company or any Restricted Subsidiary of the Company);
(3) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value, any Subordinated Indebtedness (other than intercompany Indebtedness between or among the Company and its Restricted Subsidiaries), except a payment of interest or principal at Stated Maturity (or within one year thereof); or
(4) make any Restricted Payment or Investment (all such payments and other actions set aside any funds therefor forth in these clauses (1) through (4) above being collectively referred to as “Restricted Payments”), unless, at the time of and after giving effect thereto, the aggregate to such Restricted Payment:
(1) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence of such Restricted Payments for all Payment;
(2) the Company would, at the time of such purposes subsequent Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Closing Consolidated Interest Coverage Ratio test set forth in Section 10.10(a) hereof; and
(3) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after the Issue Date would not exceed (the amount expended for such purposes, if other than cash, being the fair market value on the date of transfer or issue), is less than the sum of the following amounts, without duplication:
(as in effect from time to time, hereinafter referred to as the "Distribution Fund") of (iA) 50% of the Company's Cumulative Combined Consolidated Net Income subsequent of the Company for the period (taken as one accounting period) from October 1, 2010 to December 31, 1991 so long as the end of the Company's Combined Tangible ’s most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Worth Income for such period is greater than $31,051,000a deficit, less 100% of such deficit); plus
(iiB) 100% of (x) the aggregate net cash proceeds and the fair market value of the net any non-cash proceeds received by the Company since the Issue Date as a contribution to its common equity capital or from any issuance the issue or sale of capital shares Equity Interests of the Company subsequent (other than Disqualified Stock) or from the issue or sale of Disqualified Stock or convertible or exchangeable debt securities of the Company that have been converted into or exchanged for such Equity Interests (other than Equity Interests (or Disqualified Stock or debt securities) sold to a Subsidiary of the Closing DateCompany), (y) the amount by which Indebtedness of the Company or any Restricted Subsidiary is reduced on the Company’s consolidated balance sheet upon the conversion or exchange after the Issue Date of any such Indebtedness into or for Equity Interests of the Company (other than Disqualified Stock), and (iiiz) the aggregate net cash proceeds, if any, received by the Company or any of its Restricted Subsidiaries upon any conversion or exchange described in clause (x) or (y) above; plus
(C) to the extent that any Restricted Investment that was made after the Issue Date is sold for cash or Cash Equivalents, or otherwise is liquidated or repaid for cash or Cash Equivalents, an amount equal to such cash or Cash Equivalents (less the cost of disposition, if any); plus
(D) the amount equal to the net reduction in Investments in Unrestricted Subsidiaries after the Issue Date resulting from (A) payments of dividends or interest or other transfers of assets to the Company or any Restricted Subsidiary from Unrestricted Subsidiaries, (B) the redesignation of Unrestricted Subsidiaries as Restricted Subsidiaries or (C) the receipt of proceeds by the Company or any Restricted Subsidiary from the sale or other disposition of any portion of any Investment in an Unrestricted Subsidiary’ plus
(E) $284.4 million.
(b) The provisions of Section 4.07(a) hereof will not prohibit:
(1) 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;
(2) the making of any Restricted Payment in exchange for, or out of the net cash proceeds received by of the substantially concurrent sale (other than to a Subsidiary of the Company) of, Equity Interests of the Company (other than Disqualified Stock) or from any issuance the substantially concurrent contribution (other than by a Subsidiary of the Company) of capital to the Company in respect of its Equity Interests (other than Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such redemption, repurchase, retirement, defeasance or other acquisition shall be excluded from clause (3)(B) of Section 4.07(a) hereof;
(3) the defeasance, redemption, repurchase, retirement or other acquisition of Subordinated Indebtedness of the Company which has been converted into capital shares or any Guarantor with the net cash proceeds from an incurrence of, or in exchange for, Permitted Refinancing Indebtedness;
(4) the payment of any dividend or distribution by a Restricted Subsidiary of the Company to (i) the holders of its common Equity Interests on a pro rata basis or (ii) the Company or a Subsidiary of the Company;
(5) so long as no Default or Event of Default shall have occurred and be continuing, the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company held by any future, present or former employee or director (or any of their respective heirs or estates or permitted transferees) of the Company or any of the Company's Restricted Subsidiaries pursuant to any agreements (including employment agreements) or management equity plan or stock option plan or any other management or employee benefit plan or agreement (including any management equity subscription agreement, stock option agreement or similar written arrangement) approved by the Board of Directors; provided, that the aggregate Restricted Payments made under this clause (e) do not exceed in any calendar year $5.0 million (with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum of $10.0 million in any calendar year);
(6) repurchases, redemptions or other acquisitions or retirements for value of Equity Interests of the Company deemed to occur upon exercise or exchange of warrants, options or rights to acquire Equity Interests if such Equity Interests represent a portion of the exercise or exchange price of such warrants, options or rights, and any repurchases, redemptions or other acquisitions or retirements for value of Equity Interests made in lieu of withholding taxes in connection with any exercise or exchange of warrants, options or rights to acquire Equity Interests;
(7) payments or distributions to dissenting shareholders pursuant to applicable law in connection with a merger, consolidation or transfer of assets that complies with the provisions of Section 8.1 hereof;
(8) cash payments in lieu of the issuance of fractional shares;
(9) the declaration and payment of regularly scheduled or accrued dividends to holders of any class or series of Disqualified Stock of the Company or any Restricted Subsidiary of the Company, or any class or series of preferred stock of a Restricted Subsidiary of the Company, in each case issued after the Issue Date in accordance with the Consolidated Interest Coverage Ratio test described in Section 10.10(a) hereof and
(10) other Restricted Payments not to exceed $30.0 million in the aggregate in any calendar year. In determining the aggregate amount of Restricted Payments made subsequent to the Closing DateIssue Date in accordance with clause (3) of Section 10.11(a), which amount amounts expended pursuant to clauses (2), (3), (4), (6), (7), (8) and (9) of this Section 10.11(b) shall be added excluded from the calculation, and amounts expended pursuant to clauses (1) and (5) of this Section 10.10(b) shall be included in the calculation.
(c) The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. For purposes of making such determination, all outstanding Investments by the Company and its Restricted Subsidiaries (except to the Distribution Fund only after extent repaid in cash) in the Subsidiary so designated will be deemed to be Restricted Payments at the time of such conversiondesignation. Notwithstanding the foregoing, the Company may acquire its own capital shares for All such outstanding Investments will be deemed to constitute Investments in an aggregate amount from and after the Closing date equal to the greater of (x1) the sum net book value of such Investments at the time of such designation and (i) 25% of the Cumulative Combined Net Income of the Company subsequent to December 31, 1991, plus (ii) $500,000, or (y2) the amount then available under fair market value of such Investments at the Distribution Fund, which amount shall time of such designation. Such designation will only be charged to the Distribution Fund. No permitted if such Restricted Payment may would be made in permitted at such time.
(d) The amount of all Restricted Payments (other than cash or securities which are actively traded on a nationally recognized public market and have a readily ascertainable market value (which value cash) shall be the amount 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 Payment)Subsidiary, unless as the Company shall have received a report from an independent recognized appraiser as case may be, pursuant to the Restricted Payment. The fair market value of the property to be distributed or transferred, in which case the amount of such any non-cash Restricted Payment shall be deemed to be determined in the greater of its fair value (as determined manner contemplated by such appraiser) or its net book value on the books definition of the Company. Notwithstanding any of the foregoing provisions of this paragraph, neither the Company nor any Subsidiary or Affiliate shall make any Restricted Payment if at the time or after giving effect thereto, there shall exist any Defaultterm “fair market value.”
Appears in 1 contract
Sources: First Supplemental Indenture (Frontier Oil Corp /New/)
Restricted Payments. Neither From and after the date hereof the Company nor shall not, and shall not permit any of its Restricted Subsidiaries to, directly or Affiliates shall indirectly: (i) declare or pay any dividend or make any other payment or distribution on account of the Company's or any of its Restricted Subsidiaries' Equity Interests (including, without limitation, any such dividend, distribution or other payment made as a payment in connection with any merger or consolidation involving the Company), other than dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company or dividends or distributions payable to the Company or any Wholly Owned Subsidiary of the Company; (ii) purchase, redeem or otherwise acquire or retire for value (including, without limitation, any such purchase, redemption or other acquisition or retirement for value made as a payment in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or any Restricted Subsidiary (other than any such Equity Interests owned by the Company or any Restricted Subsidiary of the Company); (iii) make any principal payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness that is subordinated to the Notes, except a payment of principal at Stated Maturity in the applicable amounts so required; or (iv) make any Restricted Payment or Investment (all such payments and other actions set aside any funds therefor forth in clauses (i) through (iv) above being collectively referred to as "Restricted Payments"), unless, at the time of and immediately after giving effect theretoto such Restricted Payment:
(a) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof; and
(b) the Company would, at the aggregate time of such Restricted Payments for all Payment and after giving pro forma effect thereto as if such purposes subsequent Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Closing Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 4.09 hereof; and
(c) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after the Issue Date would not exceed (excluding Restricted Payments permitted by clauses (ii), (iii), (v), (vi), (vii), (ix) and (x) of the next succeeding paragraph), is less than the sum (as in effect from time to time, hereinafter referred to as the "Distribution Fund"without duplication) of (i) 50% of the Company's Cumulative Combined Consolidated Net Income subsequent of the Company for the period (taken as one accounting period) from the beginning of the first fiscal quarter commencing after the Issue Date to December 31, 1991 so long as the end of the Company's Combined Tangible most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Worth Income for such period is greater than $31,051,000a deficit, less 100% of such deficit), plus (ii) 100% of the aggregate of the net cash proceeds received by the Company from any issuance the issue or sale subsequent to the Issue Date of capital shares Equity Interests of the Company (other than Disqualified Stock) or of Disqualified Stock or debt securities of the Company that have been converted into or exchanged for such Equity Interests (other than Equity Interests (or Disqualified Stock or convertible debt securities) sold to a Restricted Subsidiary of the Company and other than Disqualified Stock or convertible debt securities that have been converted into Disqualified Stock), plus (iii) with respect to any Restricted Investment that was made after the Issue Date (A) to the extent that such Restricted Investment is sold for cash or otherwise liquidated or repaid for cash, the amount of cash proceeds received with respect to such Restricted Investments and (B), without duplication of any amount included in Consolidated Net Income, 100% of any cash dividends or other cash distributions received in respect of such Restricted Investment, plus (iv) to the extent not otherwise included in clause (iii) above, 100% of the net cash proceeds realized upon the sale of any Unrestricted Subsidiary (less the amount of any reserve established for purchase price adjustments and less the maximum amount of any indemnification or similar contingent obligation for the benefit of the purchaser, any of its Affiliates or any other third party in such sale, in each case as adjusted for any permanent reduction in any such amount on or after the date of such sale, other than by virtue of a payment made to such Person following the Issue Date), plus (v) upon the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary, the lesser of (x) the fair market value of such Subsidiary or (y) the aggregate amount of all Investments made in such Subsidiary subsequent to the Closing DateIssue Date by the Company and its Restricted Subsidiaries, plus (vi) $15.0 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 Restricted Subsidiary in exchange for, or in an amount not in excess 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 and any Net Income resulting therefrom shall be excluded from clauses (c)(i) and (c)(ii) of the preceding paragraph;
(iii) the aggregate defeasance, redemption, repurchase, retirement or other acquisition of subordinated Indebtedness in exchange for, or in an amount not in excess of the net cash proceeds from, an incurrence of Permitted Refinancing Indebtedness;
(iv) 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, Holding or any Restricted Subsidiary of the Company (including Restricted Payments to any shareholder of the Company in order to permit such shareholder (directly or indirectly) to repurchase, redeem or otherwise acquire Equity Interests in Holding), held by any member of the Company's (or any of its subsidiaries') management, employees, directors or consultants pursuant to any management, employee, director or consultant equity subscription agreement or stock option agreement; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall not exceed the sum of (A) $3.0 million and (B) the aggregate cash proceeds received by the Company from any issuance of any Indebtedness Equity Interests by Holding or the Company to members of management, employees, directors or consultants of the Company which has been converted into capital shares 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); provided, further, that Management Notes may be forgiven or returned without regard to the limitation set forth above and the forgiveness or return thereof shall not be treated as Restricted Payments for purposes of determining compliance with such limitation;
(v) the payment of any dividend (or the making of a similar distribution or redemption) by a Restricted Subsidiary of the Company subsequent to the Closing Dateholders of its common Equity Interests on a pro rata basis;
(vi) (A) payments required to be made under the Tax Sharing Agreement or (B) distributions made by the Company on the date of this Indenture, the proceeds of which are utilized solely to consummate the Recapitalization;
(vii) the payment of dividends or the making of loans or advances by the Company to Holding in an aggregate amount shall be added not to exceed $1.75 million in any fiscal year for costs and expenses incurred by Holding in its capacity as a holding company or for services rendered by Holding on behalf of the Distribution Fund only Company;
(viii) 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 Restricted Subsidiary issued after such conversion. Notwithstanding the foregoingdate of this Indenture in accordance with the covenant contained in Section 4.09 hereof;
(ix) 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 may acquire its own capital shares for an aggregate amount would have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in clause (i) of the first paragraph of Section 4.09 hereof, from and after the Closing Issue Date, payments of cash dividends to Holding in an amount sufficient to enable Holding to make payments of interest required to be made in respect of the Holding Senior Discount Debentures in accordance with the terms thereof in effect on the date of this Indenture, provided such interest payments are made with the proceeds of such dividends; and
(x) the purchase or redemption of subordinated indebtedness pursuant to a change of control of provision contained in the indenture or other governing instrument relating thereto; provided, however, that (A) no offer or purchase obligation may be triggered in respect of such Indebtedness unless a corresponding obligation also arises for the Notes and (B) in all events, no repurchase or redemption of such Indebtedness may be consummated unless and until the Company shall have satisfied all repurchase obligations with respect to any required purchase offer made with respect to the Notes. 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 (xi) the sum net book value of (i) 25% such Investments at the time of the Cumulative Combined Net Income of the Company subsequent to December 31, 1991, plus such designation and (ii) $500,000, or (y) the amount then available under fair market value of such Investments at the Distribution Fund, which amount shall time of such designation. Such designation will only be charged to the Distribution Fund. No permitted if such Restricted Payment may would be made in permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. The amount of all Restricted Payments (other than cash or securities which are actively traded on a nationally recognized public market and have a readily ascertainable market value (which value cash) shall be the amount 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 Payment)Subsidiary, unless as the Company shall have received a report from an independent recognized appraiser as case may be, pursuant to the Restricted Payment. The fair market value of the property to be distributed or transferred, in which case the amount of such any non-cash Restricted Payment shall be deemed determined by the Board of Directors whose resolution with respect thereto shall be delivered to the Trustee, such determination to be based upon a fairness 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 greater date of its fair value (as determined by such appraiser) or its net book value on the books of the Company. Notwithstanding making any of the foregoing provisions of this paragraphRestricted Payment, neither the Company nor any Subsidiary or Affiliate shall make any 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, if at the time or after giving effect theretoany, there shall exist any Defaultrequired by this Indenture.
Appears in 1 contract
Sources: Indenture (Laralev Inc)
Restricted Payments. Neither the Company nor Not (a) make any distribution to any holders of its Capital Securities, (b) purchase or redeem any of its Subsidiaries Capital Securities, (c) pay any management fees or Affiliates shall similar fees to any of its equity holders or any Affiliate thereof, (d) make any Restricted Payment redemption, prepayment (whether mandatory or optional), defeasance, repurchase or any other payment in 85 respect of any Subordinated Debt or (e) set aside funds for any funds therefor unless, after giving effect thereto, the aggregate of such Restricted Payments for all such purposes subsequent to the Closing Date would not exceed the sum (as in effect from time to time, hereinafter referred to as the "Distribution Fund") of (i) 50% of the Company's Cumulative Combined Net Income subsequent to December 31, 1991 so long as the Company's Combined Tangible Net Worth is greater than $31,051,000, (ii) the aggregate of the net cash proceeds received by the Company from any issuance or sale of capital shares of the Company subsequent to the Closing Date, and (iii) the aggregate of the net cash proceeds received by the Company from any issuance of any Indebtedness of the Company which has been converted into capital shares of the Company subsequent to the Closing Date, which amount shall be added to the Distribution Fund only after such conversionforegoing. Notwithstanding the foregoing:
(i) any Subsidiary may pay dividends or make other distributions to Borrower or to a domestic Wholly-Owned Subsidiary;
(ii) Borrower may make the September 2022 Distribution, the Company may acquire September 2023 Distribution and other discretionary distributions (which for the avoidance of doubt, shall not include any regular quarterly distributions permitted to be made under Section 11.4(iv)) to any holders of its own capital shares for an aggregate amount from Capital Securities, in each case, so long as at the time of and after giving effect to any such distributions:
(A) no Default or Event of Default has occurred and is continuing or would occur as a consequence of any such distribution;
(B) Excess Availability, measured at the Closing date equal time of any such distribution and immediately after giving effect to any such distribution, is not less than $35,000,000;
(C) Borrower would, at the greater time of any such discretionary distribution, and after subtracting (xi) any cash payments made in respect of all discretionary distributions permitted to be made under this Section 11.4(ii) during the preceding twelve-month period and (ii) cash redemptions and repurchases permitted to be made pursuant to Section 11.4(iii) during the preceding twelve-month period from the calculation of EBITDA on a pro forma basis as if any such discretionary distributions, redemptions or repurchases had been made at the beginning of the preceding twelve-month period, have a Fixed Charge Coverage Ratio of at least 1.40 to 1.00; and
(D) the sum of such discretionary distributions plus any regular quarterly distributions permitted to be made pursuant to Section 11.4(iv) do not exceed $35,000,000 in the aggregate (excluding the September 2022 Distribution and the September 2023 Distribution) in any Fiscal Year;
(iii) Borrower may make discretionary redemptions of its Capital Securities, so long as at the time of and after giving effect to any such redemption:
(A) no Default or Event of Default has occurred and is continuing or would occur as a consequence of any such redemption;
(B) Excess Availability, measured at the time of any such redemption and immediately after giving effect to any such redemption, is not less than $35,000,000;
(C) ▇▇▇▇▇▇▇▇ would, at the time of any such redemption, and after subtracting (i) 25% any cash payments made in respect of all discretionary 86 distributions permitted to be made under Section 11.4(ii) during the Cumulative Combined Net Income of the Company subsequent to December 31, 1991, plus preceding twelve-month period and (ii) $500,000cash redemptions and repurchases permitted to be made pursuant to this Section 11.4(iii) during the preceding twelve-month period from the calculation of EBITDA on a pro forma basis as if any such discretionary distributions, redemptions or repurchases had been made at the beginning of the preceding twelve-month period, have a Fixed Charge Coverage Ratio of at least 1.40 to 1.00; and
(D) such redemptions do not exceed (y) $28,600,000 in the amount then available aggregate for the Fiscal Year ending June 30, 2024, and (z) $20,000,000 in the aggregate in any Fiscal Year commencing with the Fiscal Year ending June 30, 2025;
(iv) Borrower may make regular quarterly distributions (which for the avoidance of doubt, shall not include any discretionary distributions permitted to be made under the Distribution FundSection 11.4(ii)) to any holders of its Capital Securities, which amount shall be charged to the Distribution Fund. No Restricted Payment may be made in other than cash or securities which are actively traded on a nationally recognized public market and have a readily ascertainable market value (which value shall be the amount extent approved by Borrower’s Board of such Restricted Payment)Directors, unless the Company shall have received a report from an independent recognized appraiser so long as to the fair value of the property to be distributed or transferred, in which case the amount of such Restricted Payment shall be deemed to be the greater of its fair value (as determined by such appraiser) or its net book value on the books of the Company. Notwithstanding any of the foregoing provisions of this paragraph, neither the Company nor any Subsidiary or Affiliate shall make any Restricted Payment if at the time or of and after giving effect theretoto any such quarterly distributions:
(A) no Default or Event of Default has occurred and is continuing or would occur as a consequence of any such quarterly distribution;
(B) Excess Availability, there shall exist measured at the time of any Defaultsuch quarterly distribution and immediately after giving effect to any such quarterly distribution, is not less than $35,000,000;
(C) Borrower would, at the time of any such quarterly distribution, and after giving pro forma effect to any such quarterly distribution as if such quarterly distribution had been made at the beginning of the applicable twelve-month period, have a Fixed Charge Coverage Ratio of at least 1.60 to 1.00; and
(D) the sum of such regular quarterly distributions plus any discretionary distributions permitted to be made pursuant to Section 11.4(ii) do not exceed $35,000,000 in the aggregate (excluding the September 2022 Distribution and the September 2023 Distribution) in any Fiscal Year.
Appears in 1 contract
Restricted Payments. Neither the The Company nor shall not, and shall not permit any of its Restricted Subsidiaries to, directly or Affiliates shall indirectly, (i) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or any of its Restricted Subsidiaries (other than any such Equity Interests owned by the Company or any of its Restricted Subsidiaries); (ii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value, any Indebtedness that is subordinated in right of payment to the Notes or the Subsidiary Guarantees, as the case may be, except a payment of interest or principal at Stated Maturity; or (iii) make any Restricted Payment or Investment (all such payments and other actions set aside any funds therefor forth in clauses (i) through (iii) above being collectively referred to as “Restricted Payments”), unless, at the time of and after giving effect theretoto such Restricted Payment:
(a) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof;
(b) the Company would, at the aggregate time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Coverage Ratio test set forth in Section 4.09 hereof; and
(c) such Restricted Payment, together with (x) the aggregate amount of all other Restricted Payments for made by the Company and its Restricted Subsidiaries after the Reference Date (excluding Restricted Payments permitted by clauses (b) through (e) and, to the extent deducted in computing Consolidated Net Income, (f) and (g) of the next succeeding paragraph), and (y) the aggregate amount of all such purposes dividends and other payments or distributions paid subsequent to the Closing Reference Date would on account of the Company’s or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any such payment in connection with any merger or consolidation involving the Company) or to the direct or indirect holders of the Company’s Equity Interests in their capacity as such (other than (i) dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company, (ii) dividends or distributions payable to the Company or any of its Restricted Subsidiaries or (iii) if the Restricted Subsidiary making such dividend is not exceed a Wholly Owned Restricted Subsidiary, dividends to its shareholders on a pro rata basis), is less than the sum (as in effect from time to time, hereinafter referred to as the "Distribution Fund"without duplication) of the following: (iA) 50% of the Company's Cumulative Combined cumulative Consolidated Net Income subsequent of the Company for the period (taken as one accounting period) from the first day of first fiscal quarter following the Issue Date to December 31, 1991 so long as the end of the Company's Combined Tangible ’s most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Worth Income for such period is greater than $31,051,000a deficit, less 100% of such deficit), plus (iiB) 100% of the aggregate of (1) the aggregate net cash proceeds and (2) the fair market value of Strategic Assets transferred or conveyed to the Company (as valued at the time of transfer or conveyance to the Company, and as determined in the manner contemplated by the definition of the term “fair market value”), in each case received by the Company since the Reference Date as a contribution to its common equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified Stock) or from the issuance or sale of Disqualified Stock or debt securities of the Company that have been converted into, or exchanged or redeemed for, such Equity Interests (other than any such Equity Interests, Disqualified Stock or convertible debt securities sold to a Restricted Subsidiary of the Company and other than Disqualified Stock or convertible debt securities that have been converted into, or exchanged or redeemed for, Disqualified Stock), plus (C) to the extent that any Restricted Investment that was made after the Reference Date is sold for cash or otherwise liquidated or repaid for cash, the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any) plus (D) if any Unrestricted Subsidiary is redesignated as a Restricted Subsidiary, the lesser of
(1) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Subsidiary as of the date of redesignation and (2) the amount of such Investments. The foregoing provisions will not prohibit any of the following:
(a) 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;
(b) the redemption, repurchase, retirement, defeasance or other acquisition of any subordinated Indebtedness of the Company or any Guarantor or any Equity Interests of the Company or any of its Restricted Subsidiaries in exchange for, or out of the net cash proceeds received by of the Company from any issuance or substantially concurrent sale (other than to a Restricted Subsidiary of capital shares the Company) of, other Equity Interests of the Company subsequent to (other than any Disqualified Stock); provided that the Closing Dateamount of any such net cash proceeds that are utilized for any such redemption, and purchase, retirement, defeasance or other acquisition shall be excluded from clause (iiic)(B) of the preceding paragraph;
(c) the aggregate defeasance, redemption, purchase, retirement or other acquisition of subordinated Indebtedness of the Company or any Guarantor with the net cash proceeds received from an incurrence of, or in exchange for, Permitted Refinancing Indebtedness;
(d) the payment of any dividend or distribution by a Restricted Subsidiary of the Company to the Company or any of its Restricted Subsidiaries;
(e) 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 stock options;
(f) so long as no Default has occurred and is continuing, the repurchase or other acquisition for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company for allocation (as a free allocation or otherwise) to directors, officers and employees of the Company and its Restricted Subsidiaries not in excess of $2,500,000 in any twelve-month period;
(g) so long as no Default has occurred and is continuing, the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company held by any member of the Company’s (or any of its Restricted Subsidiaries’) management pursuant to any management equity subscription agreement or stock option agreement in effect as of the Issue Date; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall not exceed €1,000,000 in any twelve-month period; provided, further, that such agreement or such repurchase, redemption or other acquisition or retirement or the agreement are approved by a majority of the disinterested members of the Board of Directors;
(h) loans or advances in the ordinary course of business to Affiliates or Persons with which the Company or a Subsidiary may have contractual arrangements in any jurisdiction to the extent such loans or advances are reasonably necessary to be made in connection with conducting the business of the Company or a Subsidiary in such jurisdiction and in a form that is customary to address foreign investment regulation or practice in such jurisdiction, in an aggregate amount not to exceed $7,500,000 outstanding at any one time;
(i) so long as no Default has occurred and is continuing, advances constituting Investment or loans to directors, officers and employees of the Company and its Restricted Subsidiaries in the ordinary course of business for bona fide business purposes not in excess of €1,000,000 at any one time outstanding in the aggregate;
(j) other Restricted Payments not to exceed $15,000,000 in the aggregate; and
(k) Investments in connection with the Permitted Closing Steps. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default (except at any time during which the Company maintains Investment Grade Status). For purposes of making such designation, all outstanding Investments by the Company from any issuance of any Indebtedness of and its Restricted Subsidiaries in the Company which has been converted into capital shares of the Company subsequent to the Closing Date, which amount shall be added to the Distribution Fund only after such conversion. Notwithstanding the foregoing, the Company may acquire its own capital shares for an aggregate amount from and after the Closing date equal to the greater of (x) the sum of (i) 25% of the Cumulative Combined Net Income of the Company subsequent to December 31, 1991, plus (ii) $500,000, or (y) the amount then available under the Distribution Fund, which amount shall be charged to the Distribution Fund. No Restricted Payment may be made in other than cash or securities which are actively traded on a nationally recognized public market and have a readily ascertainable market value (which value shall be the amount of such Restricted Payment), unless the Company shall have received a report from an independent recognized appraiser as to the fair value of the property to be distributed or transferred, in which case the amount of such Restricted Payment Subsidiary so designated shall be deemed to be Restricted Payments at the greater time of its such designation, in an amount equal to the fair market value (as determined by of such appraiser) or its net book value on Investments at the books time of such designation. Such designation shall only be permitted if such Restricted Payments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of “Unrestricted Subsidiary.” The Board of Directors may also redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if such redesignation complies with the requirements described in the definition of “Unrestricted Subsidiary.” If the aggregate amount of all Restricted Payments calculated for purposes of the Company. Notwithstanding any first paragraph of this Section 4.07 includes an Investment in an Unrestricted Subsidiary that subsequently becomes a Restricted Subsidiary pursuant to the foregoing provisions terms of this paragraph, neither then the aggregate amount of such Restricted Payments shall be reduced by the lesser of (a) an amount equal to the fair market value of the Investments previously made by the Company nor any and its Restricted Subsidiaries in such Unrestricted Subsidiary or Affiliate shall make any Restricted Payment if at the time it becomes a Restricted Subsidiary and (b) the amount of such Investments. Any designation or after redesignation of a Subsidiary shall be evidenced to the Trustee by filing with the Trustee a Board Resolution giving effect theretoto such action and evidencing the valuation of any Investment relating thereto (as determined in good faith by the Board of Directors) and an Officers’ Certificate certifying that such action complied with the terms of the definition of “Unrestricted Subsidiary” set forth in this Indenture (in the case of a designation) 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, there as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall exist any Defaultbe 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.
Appears in 1 contract
Sources: Indenture
Restricted Payments. Neither the The Company nor shall not, and shall not permit any of its Restricted Subsidiaries to, directly or Affiliates shall indirectly, (i) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or any of its Restricted Subsidiaries (other than any such Equity Interests owned by the Company or any Wholly Owned Restricted Subsidiary of the Company); (ii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value, any Indebtedness that is subordinated in right of payment to the Notes or the Subsidiary Guarantees, as the case may be, except a payment of interest or principal at Stated Maturity; or (iii) make any Restricted Payment or Investment (all such payments and other actions set aside any funds therefor forth in clauses (i) through (iii) above being collectively referred to as “Restricted Payments”), unless, at the time of and after giving effect theretoto such Restricted Payment:
(a) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof;
(b) the Company would, at the aggregate time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least €1.00 of additional Indebtedness pursuant to the Consolidated Interest Coverage Ratio test set forth in Section 4.09 hereof; and
(c) such Restricted Payment, together with (x) the aggregate amount of all other Restricted Payments for made by the Company and its Restricted Subsidiaries after the Reference Date (excluding Restricted Payments permitted by clauses (b) through (e) and, to the extent deducted in computing Consolidated Net Income, (f) and (g) of the next succeeding paragraph), and (y) the aggregate amount of all such purposes dividends and other payments or distributions paid subsequent to the Closing Reference Date would on account of the Company’s or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any such payment in connection with any merger or consolidation involving the Company) or to the direct or indirect holders of the Company’s Equity Interests in their capacity as such (other than (i) dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company, (ii) dividends or distributions payable to the Company or any of its Restricted Subsidiaries or (iii) if the Restricted Subsidiary making such dividend is not exceed a Wholly Owned Restricted Subsidiary, dividends to its shareholders on a pro rata basis), is less than the sum (as in effect from time to time, hereinafter referred to as the "Distribution Fund"without duplication) of the following: (iA) 50% of the Company's Cumulative Combined cumulative Consolidated Net Income subsequent of the Company for the period (taken as one accounting period) from January 1, 2005 to December 31, 1991 so long as the end of the Company's Combined Tangible ’s most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Worth Income for such period is greater than $31,051,000a deficit, less 100% of such deficit), plus (iiB) 100% of the aggregate of (1) the aggregate net cash proceeds and (2) the fair market value of Strategic Assets transferred or conveyed to the Company (as valued at the time of transfer or conveyance to the Company, and as determined in the manner contemplated by the definition of the term “fair market value”), in each case received by the Company since the Reference Date as a contribution to its common equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified Stock) or from the issuance or sale of Disqualified Stock or debt securities of the Company that have been converted into, or exchanged or redeemed for, such Equity Interests (other than any such Equity Interests, Disqualified Stock or convertible debt securities sold to a Restricted Subsidiary of the Company and other than Disqualified Stock or convertible debt securities that have been converted into, or exchanged or redeemed for, Disqualified Stock), plus (C) to the extent that any Restricted Investment that was made after the Reference Date is sold for cash or otherwise liquidated or repaid for cash, the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any) plus (D) if any Unrestricted Subsidiary is redesignated as a Restricted Subsidiary, the lesser of (1) an amount equal to the fair market value of the Investments previously made by the Company and its Restricted Subsidiaries in such Subsidiary as of the date of redesignation and (2) the amount of such Investments. The foregoing provisions will not prohibit any of the following:
(a) 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;
(b) the redemption, repurchase, retirement, defeasance or other acquisition of any subordinated Indebtedness of the Company or any Guarantor or any Equity Interests of the Company or any of its Restricted Subsidiaries in exchange for, or out of the net cash proceeds received by of the Company from any issuance or substantially concurrent sale (other than to a Restricted Subsidiary of capital shares the Company) of, other Equity Interests of the Company subsequent to (other than any Disqualified Stock), provided that the Closing Dateamount of any such net cash proceeds that are utilized for any such redemption, and purchase, retirement, defeasance or other acquisition shall be excluded from clause (iiic)(B) of the preceding paragraph;
(c) the aggregate defeasance, redemption, purchase, retirement or other acquisition of subordinated Indebtedness of the Company or any Guarantor with the net cash proceeds received from an incurrence of, or in exchange for, Permitted Refinancing Indebtedness;
(d) the payment of any dividend or distribution by a Restricted Subsidiary of the Company to the Company or any of its Wholly Owned Restricted Subsidiaries;
(e) 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 stock options;
(f) so long as no Default has occurred and is continuing, the repurchase or other acquisition for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company for allocation (as a free allocation or otherwise) to directors, officers and employees of the Company and its Restricted Subsidiaries not in excess of €2,500,000 in any twelve-month period;
(g) so long as no Default has occurred and is continuing, the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company held by any member of the Company’s (or any of its Restricted Subsidiaries’) management pursuant to any management equity subscription agreement or stock option agreement in effect as of the Issue Date; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall not exceed €1,000,000 in any twelve-month period;
(h) loans or advances in the ordinary course of business to Affiliates or Persons with which the Company or a Subsidiary may have contractual arrangements in any jurisdiction reasonably necessary to be made in connection with conducting the business of the Company or a Subsidiary in such jurisdiction in a form that is customary to address foreign investment regulation or practice in such jurisdiction, in an aggregate amount not to exceed €2,000,000 outstanding at any one time;
(i) so long as no Default has occurred and is continuing, advances constituting Investments or loans to directors, officers and employees of the Company and its Restricted Subsidiaries in the ordinary course of business for bona fide business purposes not in excess of €1,000,000 at any one time outstanding; and
(j) other Restricted Payments not to exceed €15,000,000 in the aggregate. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default (except at any time during which the Company maintains Investment Grade Status). For purposes of making such designation, all outstanding Investments by the Company from any issuance of any Indebtedness of and its Restricted Subsidiaries in the Company which has been converted into capital shares of the Company subsequent to the Closing Date, which amount shall be added to the Distribution Fund only after such conversion. Notwithstanding the foregoing, the Company may acquire its own capital shares for an aggregate amount from and after the Closing date equal to the greater of (x) the sum of (i) 25% of the Cumulative Combined Net Income of the Company subsequent to December 31, 1991, plus (ii) $500,000, or (y) the amount then available under the Distribution Fund, which amount shall be charged to the Distribution Fund. No Restricted Payment may be made in other than cash or securities which are actively traded on a nationally recognized public market and have a readily ascertainable market value (which value shall be the amount of such Restricted Payment), unless the Company shall have received a report from an independent recognized appraiser as to the fair value of the property to be distributed or transferred, in which case the amount of such Restricted Payment Subsidiary so designated shall be deemed to be Restricted Payments at the greater time of its such designation, in an amount equal to the fair market value (as determined by of such appraiser) or its net book value on Investments at the books time of such designation. Such designation shall only be permitted if such Restricted Payments would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of “Unrestricted Subsidiary.” The Board of Directors may also redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if such redesignation complies with the requirements described in the definition of “Unrestricted Subsidiary.” If the aggregate amount of all Restricted Payments calculated for purposes of the Company. Notwithstanding any first paragraph of this Section 4.07 includes an Investment in an Unrestricted Subsidiary that subsequently becomes a Restricted Subsidiary pursuant to the foregoing provisions terms of this paragraph, neither then the aggregate amount of such Restricted Payments shall be reduced by the lesser of (a) an amount equal to the fair market value of the Investments previously made by the Company nor and its Restricted Subsidiaries in such Unrestricted Subsidiary at the time it becomes a Restricted Subsidiary and (b) the amount of such Investments. Any designation or redesignation of a Subsidiary shall be evidenced to the Trustee by filing with the Trustee a Board Resolution giving effect to such action and evidencing the valuation of any Subsidiary Investment relating thereto (as determined in good faith by the Board of Directors) and an Officers’ Certificate certifying that such action 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 Affiliate 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 make 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 ten Business Days following the date of making any Restricted Payment if at (other than a Restricted Payment permitted by clauses (b) through (d) of the time or after giving effect theretosecond full paragraph of this Section 4.07), there the Company shall exist any Defaultdeliver 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 (CGG Veritas)
Restricted Payments. Neither the The Company nor will not, and will not permit any of its Subsidiaries or Affiliates shall Restricted Subsidiary to, make any Restricted Payment Investment or set aside any funds therefor unlessRestricted Payment, if, after giving effect thereto, the aggregate of such Restricted Payments for all such purposes subsequent to the Closing Date would not exceed the sum (as in effect from time to time, hereinafter referred to as the "Distribution Fund") of (i) 50% the aggregate amount of Restricted Payments made during the period from and after January 1, 1999 to and including the date of the Company's Cumulative Combined Net Income subsequent to December 31making of the Restricted Payment in question, 1991 so long as the Company's Combined Tangible Net Worth is greater than $31,051,000, plus (ii) the aggregate amount of all Restricted Investments made by the Company or any Restricted Subsidiary during said period would exceed the sum of (x) U.S. $100,000,000 plus (y) 75% of Consolidated Net Income for such period, computed on a cumulative basis for said entire period (or if such Consolidated Net Income is a deficit figure for any fiscal period within such period, then minus 100% of such deficit) plus (z) an amount equal to the aggregate net cash proceeds received by the Company from any the issuance or sale after January 1, 1998 (other than to the Company or any Subsidiary) of capital shares of common stock of the Company subsequent Company. In addition to the Closing Date, and (iii) the aggregate of the net cash proceeds received by the Company from any issuance of any Indebtedness of the Company which has been converted into capital shares of the Company subsequent to the Closing Date, which amount shall be added to the Distribution Fund only after such conversion. Notwithstanding the foregoingforegoing restrictions, the Company may acquire its own capital shares for an aggregate amount from and will not make any Restricted Payment or any Restricted Investment if, at the time thereof or after giving effect thereto, any Default or Event of Default shall exist. The Company will not declare any dividend which constitutes a Restricted Payment payable more than 60 days after the Closing date equal to of declaration thereof. For the greater purposes of (x) the sum of (i) 25% of the Cumulative Combined Net Income of the Company subsequent to December 31this SECTION5.11, 1991, plus (ii) $500,000, or (y) the amount then available under the Distribution Fund, which amount shall be charged to the Distribution Fund. No Restricted Payment may be made in other than cash or securities which are actively traded on a nationally recognized public market and have a readily ascertainable market value (which value shall be the amount of such Restricted Payment), unless the Company shall have received a report from an independent recognized appraiser as to the fair value of the property to be distributed or transferred, in which case the amount of such any Restricted Payment declared, paid or distributed in property shall be deemed to be the greater of its the book value or fair market value (as determined in good faith by such appraiser) or its net book value on the books Board of Directors of the Company. Notwithstanding any ) of the foregoing provisions of this paragraph, neither the Company nor any Subsidiary or Affiliate shall make any Restricted Payment if such property at the time of the making of the Restricted Payment in question. In valuing any Restricted Investments for the purpose of applying the limitations set forth in this SECTION5.11, such Restricted Investments shall be taken at the original cost thereof, without allowance for any subsequent write-offs or after giving effect theretoappreciation or depreciation therein, there but less any amount repaid or recovered on account of capital or principal. For purposes of this SECTION5.11, at any time when a corporation becomes a Restricted Subsidiary, all Restricted Investments of such corporation at such time shall exist any Defaultbe deemed to have been made by such corporation, as a Restricted Subsidiary, at such time.
Appears in 1 contract
Restricted Payments. Neither the The Company nor shall not and shall not permit any of its Restricted Subsidiaries to, directly or Affiliates shall indirectly: (i) declare or pay any dividend or make any other payment or distribution on account of the Company's Equity Interests (including, without limitation, any payment to holders of the Company's Equity Interests in connection with any merger or consolidation involving the Company) or to the direct or indirect holders of the Company's Equity Interests in their capacity as such (other than dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company); (ii) purchase, redeem or otherwise acquire or retire for value any Equity Interests of the Company or any direct or indirect parent or other Affiliate of the Company that is not a Wholly Owned Restricted Subsidiary of the Company; (iii) make any principal payment on, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness that is subordinated to the Notes, except at final maturity; or (iv) make any Restricted Payment or Investment (all such payments and other actions set aside any funds therefor forth in clauses (i) through (iv) above being collectively referred to as "Restricted Payments"), unless, at the time of and after giving effect theretoto such Restricted Payment:
(a) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof; and
(b) the Company would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 4.09 hereof; and
(c) such Restricted Payment, together with the aggregate of such all other Restricted Payments for all such purposes subsequent to made by the Closing Date would not exceed Company and its Restricted Subsidiaries after the date of this Indenture (excluding Restricted Payments permitted by clauses (2), (3), (5), (6) and (7) of the next succeeding paragraph), is less than the sum (as in effect from time to time, hereinafter referred to as the "Distribution Fund") of (i) 50% of the Company's Cumulative Combined Consolidated Net Income subsequent of the Company for the period (taken as one accounting period) from the beginning of the first fiscal quarter commencing after the date of this Indenture to December 31, 1991 so long as the end of the Company's Combined Tangible most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Worth Income for such period is greater than $31,051,000a deficit, less 100% of such deficit), plus (ii) 100% of the aggregate of the net cash proceeds received by the Company from any issuance the issue and sale since the date of this Indenture of Equity Interests in the Company or sale of capital shares debt securities of the Company subsequent that have been converted into or exchanged for such Equity Interests (other than Equity Interests (or convertible debt securities) sold to a Subsidiary of the Closing DateCompany and other than Disqualified Stock or debt securities that have been converted into Disqualified Stock), and plus (iii) to the extent that any Restricted Investment that was made after the date of this Indenture is sold for cash or otherwise liquidated or repaid for cash, the lesser of (A) the net proceeds of such sale, liquidation or repayment and (B) the initial amount of such Restricted Investment; provided, however, that the foregoing provisions of this paragraph (c) will not prohibit Restricted Payments in an aggregate amount not to exceed $20 million. The foregoing provisions shall not prohibit (1) 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; (2) 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 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; (3) the defeasance, redemption or repurchase of Subordinated Indebtedness with the net cash proceeds received from an incurrence of subordinated Permitted Refinancing Debt or the substantially concurrent sale (other than to a Subsidiary of the Company) 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 redemption, repurchase, retirement or other acquisition shall be excluded from clause (c) (ii) of the preceding paragraph; (4) the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Subsidiary of the Company held by any of the Company's (or any of its Subsidiaries') employees pursuant to any management equity subscription agreement or stock option agreement in effect as of the date of this 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; and provided further that no Default or Event of Default shall have occurred and be continuing immediately after such transaction; (5) 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; (6) cash payments made by the Company from any issuance for the repurchase, redemption or other acquisition or retirement of any Indebtedness the Company's 8 3/4% Senior Subordinated Notes due 2007; (7) cash payments made by the Company, not to exceed $25 million in the aggregate, for the repurchase, redemption or other acquisition or retirement of the Company's 6% Convertible Subordinated Debentures due 2007 and the 5 3/4% Trust Convertible Preferred Securities. The amount of all Restricted Payments (other than cash) shall be the fair market value (as determined in good faith by a resolution of the Board of Directors of the Company set forth in an Officers' Certificate delivered to the Trustee, which has been converted into capital shares determination shall be conclusive evidence of compliance with this provision) on the date of the Restricted Payment of the asset(s) proposed to be transferred by the Company or the applicable Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. Not later than five days after 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. In computing Consolidated Net Income for purposes of this Section 4.07, (i) the Company shall use audited financial statements for the portion of the relevant period for which audited financial statements are available on the date of determination and unaudited financial statements and other current financial data based on the books and records of the Company subsequent to for the Closing Date, which amount remaining portion of such period and (ii) the Company shall be added permitted to rely in good faith on the Distribution Fund only after such conversion. Notwithstanding financial statements and other financial data derived from the foregoing, the Company may acquire its own capital shares for an aggregate amount from books and after the Closing date equal to the greater of (x) the sum of (i) 25% of the Cumulative Combined Net Income records of the Company subsequent to December 31, 1991, plus (ii) $500,000, or (y) that are available on the amount then available under date of determination. If the Distribution Fund, which amount shall be charged to the Distribution Fund. No Company makes a Restricted Payment may be made in other than cash or securities which are actively traded on a nationally recognized public market and have a readily ascertainable market value (which value shall be which, at the amount time of the making of such Restricted Payment), unless would on the good faith determination of the Company shall have received a report from an independent recognized appraiser as to be permitted under the fair value requirements of the property to be distributed or transferredthis Indenture, in which case the amount of such Restricted Payment shall be deemed to have been made in compliance with this Indenture notwithstanding any subsequent adjustments made in good faith to the Company's financial statements affecting Consolidated Net Income of the Company for any period. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default. For purposes of making such determination, all outstanding Investments by the Company and its Restricted Subsidiaries (except to the extent repaid in cash) in the Subsidiary so designated shall be deemed to be Restricted Payments at the time of such designation and shall reduce the amount available for Restricted Payments under clause (c) of the first paragraph of this covenant. All such outstanding Investments shall be deemed to constitute Investments in an amount equal to the greater of its the fair market value (as determined by such appraiser) or its net the book value on the books of the Company. Notwithstanding any of the foregoing provisions of this paragraph, neither the Company nor any Subsidiary or Affiliate shall make any Restricted Payment if such Investments at the time or after giving effect thereto, there of such designation. Such designation shall exist any Defaultonly 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.
Appears in 1 contract
Sources: Indenture (Range Resources Corp)
Restricted Payments. Neither the (a) The Company nor shall not, ------------------- and will not permit any of its Restricted Subsidiaries to, directly or Affiliates shall indirectly:
(i) declare or pay any dividend or make any other distribution (including any payment in connection with any merger or consolidation) on account of the Company's or any of its Restricted Subsidiaries' Equity Interests (other than dividends or distributions payable in Equity Interests (other than Disqualified Stock) and dividends payable to the Company or any Restricted Subsidiary);
(ii) purchase, redeem or otherwise acquire or retire for value (including in connection with any merger or consolidation) any Equity Interests of the Company (or any Restricted Subsidiary held by Persons other than the Company or any Restricted Subsidiary);
(iii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value, any Subordinated Debt of the Company, except (A) a payment of interest, principal or other related Obligations at Stated Maturity and (B) the purchase, repurchase or other acquisition or retirement of Subordinated Debt of the Company in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case due within one year of the date of purchase, repurchase or other acquisition or retirement; or
(iv) make any Restricted Payment or Investment (all such payments and other actions set aside any funds therefor forth in clauses (i) through (iv) above being collectively referred to as "Restricted Payments"), unless, at the time of, and after giving effect theretoto, such Restricted Payment:
(1) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof,
(2) the aggregate Company would, at the time of such Restricted Payments for all Payment and after giving pro forma effect thereto as if such purposes subsequent Restricted --------- Payment had been made at the beginning of the applicable four-quarter period, have been permitted to Incur at least $1.00 of additional Debt pursuant to the Closing Consolidated Coverage Ratio test set forth in Section 4.03(a), and
(3) such Restricted Payment, together with (without duplication) the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after the first Issue Date would not exceed (excluding Restricted Payments permitted by Section 4.04(b)(ii), Section 4.04(b)(iii)(A), Section 4.04(b)(iv), Section 4.04(b)(v), Section 4.04(b)(vi)(A) and Section 4.04(b)(vii), but including all other Restricted Payments permitted by Section 4.04(b)), is less than the sum (as in effect from time to time, hereinafter referred to as the "Distribution Fund"without duplication) of of
(i) 50% of the Company's Cumulative Combined Consolidated Net Income subsequent of the Company for the period (taken as one accounting period) from the beginning of the fiscal quarter during which the first Issue Date occurs to December 31, 1991 so long as the end of the Company's Combined Tangible most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Worth Income for such period is greater than $31,051,000a deficit, less 100% of such deficit), plus
(ii) 100% of the aggregate of the net cash proceeds received by the Company from any issuance the issue or sale of (other than to a Subsidiary) of, or from capital shares contributions with respect to, Equity Interests of the Company subsequent to (other than Disqualified Stock), in either case after the Closing first Issue Date, and plus
(iii) the aggregate principal amount (or accreted value, if less) of Debt or Disqualified Stock of the Company or any Restricted Subsidiary issued since the first Issue Date (other than to a Restricted Subsidiary) that has been converted into Equity Interests (other than Disqualified Stock) of the Company, plus
(iv) 100% of the aggregate net cash received by the Company or a Restricted Subsidiary of the Company since the first Issue Date from (A) Restricted Investments, whether through interest payments, principal payments, dividends or other distributions or payments, or the sale or other disposition (other than to the Company or a Restricted Subsidiary) thereof made by the Company and its Restricted Subsidiaries and (B) a cash dividend from, or the sale (other than to the Company or a Restricted Subsidiary) of the stock of, an Unrestricted Subsidiary, plus
(v) upon the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary, the fair market value of the Investments of the Company and its Restricted Subsidiaries (other than such Subsidiary) in such Subsidiary.
(b) The provisions of Section 4.04(a) shall not prohibit:
(i) the payment of any dividend within 60 days after the date of declaration thereof, if at such date of declaration such payment would have complied with the provisions of this Section 4.04;
(ii) the redemption, repurchase, retirement, defeasance or other acquisition of any Equity Interests or Subordinated Debt in exchange for, or out of the net cash proceeds received of the substantially concurrent sale (other than to a Restricted Subsidiary of the Company) of, other Equity Interests (other than any Disqualified Stock) of, or a capital contribution to, the Company; provided that the amount of any such net cash proceeds that are -------- utilized for any such redemption, repurchase, retirement, defeasance or other acquisition shall be excluded from Section 4.04(a)(iv)(3)(ii);
(iii) the redemption, repurchase, retirement, defeasance or other acquisition of (A) Subordinated Debt made by an exchange for, or with the net cash proceeds from an Incurrence of, Permitted Refinancing Debt or (B) Subordinated Debt (including Exchange Debentures) or Preferred Equity Interests (other than Subordinated Debt or Preferred Equity Interests held by Affiliates of the Company) upon a Change of Control or Asset Sale to the extent required by the agreement governing such Subordinated Debt or the certificate of designation governing such Preferred Equity Interests, as the case may be, but only (x) if the Company shall have complied with Section 4.06 or 4.08, as the case may be, and repurchased all Securities tendered pursuant to the offer required by such covenants prior to purchasing or repaying such Subordinated Debt or Preferred Equity Interests, as the case may be, (y) in the case of an Asset Sale, to the extent of the remaining Excess Proceeds offered to Holders pursuant to the Asset Sale Offer and (z) within six months after the date such offer is consummated;
(iv) the payment of any dividend by a Restricted Subsidiary of the Company to the holders of its common Equity Interests on a pro rata basis;
(v) to the extent constituting Restricted Payments, the Specified Affiliate Payments;
(A) the payment of any regular quarterly dividends in respect of the Exchangeable Preferred Stock in the form of additional shares of Exchangeable Preferred Stock having the terms and conditions set forth in the Certificate of Designation for the Exchangeable Preferred Stock as in effect on the first Issue Date; and (B) commencing November 1, 2003, the payment of regular quarterly cash dividends (in the amount no greater than that provided for in the Certificate of Designation for the Exchangeable Preferred Stock as in effect on the first Issue Date), out of funds legally available therefor, on any of the shares of Exchangeable Preferred Stock issued on the first Issue Date or subsequently issued in payment of dividends in respect of such shares of Exchangeable Preferred Stock issued on the first Issue Date, provided that, at the time of and immediately -------- after giving effect to the payment of such cash dividend, no Default or Event of Default shall have occurred and be continuing;
(vii) the exchange of Exchangeable Preferred Stock for Exchange Debentures in accordance with the terms of the Certificate of Designation for such Exchangeable Preferred Stock as in effect on the Issue Date, provided that such exchange is permitted by Article 4; and --------
(viii) Restricted Payments in an aggregate amount not to exceed $10.0 million. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default or an Event of Default. For purposes of making such determination, all outstanding Investments by the Company from any issuance and its Restricted Subsidiaries (except to the extent repaid in cash) in the Subsidiary so designated, to the extent they do not constitute Permitted Investments at the time such Subsidiary became an Unrestricted Subsidiary, will be deemed to be Restricted Payments made at the time of such designation. The amount of such outstanding Investments will be equal to the portion of the fair market value of the net assets of any Indebtedness Subsidiary of the Company which has been converted into capital shares at the time that such Subsidiary is designated an Unrestricted Subsidiary that is represented by the interest of the Company subsequent and its Restricted Subsidiaries in such Subsidiary, in each case as determined in good faith by the Board of Directors of the Company. Such designation will only be permitted if such Restricted Payment would be permitted at such time and if such Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. 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 Closing Date, which amount Restricted Payment. The fair market value of any noncash Restricted Payment shall be added to determined in good faith by the Distribution Fund only after such conversionBoard of Directors of the Company. Notwithstanding In making the foregoingcomputations required by this covenant, the Company may acquire its own capital shares for an aggregate amount from and after the Closing date equal to the greater of (x) the sum of (i) 25% the Company or the relevant Restricted Subsidiary may use audited financial statements for the portions of the Cumulative Combined relevant period for which audited financial statements are available on the date of determination and unaudited financial statements and other current financial data based on the books and records of the Company for the remaining portion of such period and (ii) the Company or the relevant Restricted Subsidiary will be permitted to rely in good faith on the financial statements and other financial data derived from the books and records of the Company and the Restricted Subsidiary that are available on the date of determination. If the Company makes a Restricted Payment that, at the time of the making of such Restricted Payment, would, in the good faith determination of the Company or any Restricted Subsidiary, be permitted under the requirements of this Indenture, such Restricted Payment will be deemed to have been made in compliance with this Indenture notwithstanding any subsequent adjustments made in good faith to the Company's or any Restricted Subsidiary's financial statements affecting Consolidated Net Income of the Company subsequent to December 31for any period. For the avoidance of doubt, 1991it is expressly agreed that no payment or other transaction permitted by Sections 4.07(b)(3), plus (ii4.07(b)(4) $500,000and 4.07(b)(5) shall be considered a Restricted Payment for purposes of, or (y) the amount then available under the Distribution Fundotherwise restricted by, which amount shall be charged to the Distribution Fund. No Restricted Payment may be made in other than cash or securities which are actively traded on a nationally recognized public market and have a readily ascertainable market value (which value shall be the amount of such Restricted Payment), unless the Company shall have received a report from an independent recognized appraiser as to the fair value of the property to be distributed or transferred, in which case the amount of such Restricted Payment shall be deemed to be the greater of its fair value (as determined by such appraiser) or its net book value on the books of the Company. Notwithstanding any of the foregoing provisions of this paragraph, neither the Company nor any Subsidiary or Affiliate shall make any Restricted Payment if at the time or after giving effect thereto, there shall exist any DefaultIndenture.
Appears in 1 contract
Sources: Indenture (Sailors Inc)
Restricted Payments. Neither the (a) The Company nor shall not, and shall not permit any of its Restricted Subsidiaries to, directly or Affiliates shall indirectly:
(1) declare or pay any dividend or make any other payment or distribution on account of the Company’s or any of its Restricted Subsidiaries’ Equity Interests (including any such payment in connection with any merger or consolidation involving the Company) or to the direct or indirect holders of the Company’s Equity Interests in their capacity as such (other than dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company);
(2) purchase, redeem or otherwise acquire or retire for value (including without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company (other than any such Equity Interests owned by the Company or any Restricted Subsidiary of the Company);
(3) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value, any Subordinated Indebtedness (other than intercompany Indebtedness between or among the Company and its Restricted Subsidiaries), except a payment of interest or principal at Stated Maturity (or within one year thereof); or
(4) make any Restricted Payment or Investment (all such payments and other actions set aside any funds therefor forth in these clauses (1) through (4) above being collectively referred to as “Restricted Payments”), unless, at the time of and after giving effect thereto, the aggregate to such Restricted Payment:
(1) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence of such Restricted Payments for all Payment;
(2) the Company would, at the time of such purposes subsequent Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Closing Consolidated Interest Coverage Ratio test set forth in Section 10.10(a) hereof; and
(3) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after the Issue Date would not exceed (the amount expended for such purposes, if other than cash, being the fair market value on the date of transfer or issue), is less than the sum of the following amounts, without duplication:
(as in effect from time to time, hereinafter referred to as the "Distribution Fund") of (iA) 50% of the Company's Cumulative Combined Consolidated Net Income subsequent of the Company for the period (taken as one accounting period) from July 1, 2008 to December 31, 1991 so long as the end of the Company's Combined Tangible ’s most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Worth Income for such period is greater than $31,051,000a deficit, less 100% of such deficit); plus
(iiB) 100% of (x) the aggregate net cash proceeds and the fair market value of the net any non-cash proceeds received by the Company since the Issue Date as a contribution to its common equity capital or from any issuance the issue or sale of capital shares Equity Interests of the Company subsequent (other than Disqualified Stock) or from the issue or sale of Disqualified Stock or convertible or exchangeable debt securities of the Company that have been converted into or exchanged for such Equity Interests (other than Equity Interests (or Disqualified Stock or debt securities) sold to a Subsidiary of the Closing DateCompany), (y) the amount by which Indebtedness of the Company or any Restricted Subsidiary is reduced on the Company’s consolidated balance sheet upon the conversion or exchange after the Issue Date of any such Indebtedness into or for Equity Interests of the Company (other than Disqualified Stock), and (iiiz) the aggregate net cash proceeds, if any, received by the Company or any of its Restricted Subsidiaries upon any conversion or exchange described in clause (x) or (y) above; plus
(C) to the extent that any Restricted Investment that was made after the Issue Date is sold for cash or Cash Equivalents, or otherwise is liquidated or repaid for cash or Cash Equivalents, an amount equal to such cash or Cash Equivalents (less the cost of disposition, if any); plus
(D) the amount equal to the net reduction in Investments in Unrestricted Subsidiaries after the Issue Date resulting from (A) payments of dividends or interest or other transfers of assets to the Company or any Restricted Subsidiary from Unrestricted Subsidiaries, (B) the redesignation of Unrestricted Subsidiaries as Restricted Subsidiaries or (C) the receipt of proceeds by the Company or any Restricted Subsidiary from the sale or other disposition of any portion of any Investment in an Unrestricted Subsidiary’ plus
(E) $218.8 million.
(b) The provisions of Section 4.07(a) hereof will not prohibit:
(1) 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;
(2) the making of any Restricted Payment in exchange for, or out of the net cash proceeds received by of the substantially concurrent sale (other than to a Subsidiary of the Company) of, Equity Interests of the Company (other than Disqualified Stock) or from any issuance the substantially concurrent contribution (other than by a Subsidiary of the Company) of capital to the Company in respect of its Equity Interests (other than Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such redemption, repurchase, retirement, defeasance or other acquisition shall be excluded from clause (3)(B) of Section 4.07(a) hereof;
(3) the defeasance, redemption, repurchase, retirement or other acquisition of Subordinated Indebtedness of the Company which has been converted into capital shares or any Guarantor with the net cash proceeds from an incurrence of, or in exchange for, Permitted Refinancing Indebtedness;
(4) the payment of any dividend or distribution by a Restricted Subsidiary of the Company to (i) the holders of its common Equity Interests on a pro rata basis or (ii) the Company or a Subsidiary of the Company;
(5) so long as no Default or Event of Default shall have occurred and be continuing, the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company held by any future, present or former employee or director (or any of their respective heirs or estates or permitted transferees) of the Company or any of the Company’s Restricted Subsidiaries pursuant to any agreements (including employment agreements) or management equity plan or stock option plan or any other management or employee benefit plan or agreement (including any management equity subscription agreement, stock option agreement or similar written arrangement) approved by the Board of Directors; provided, that the aggregate Restricted Payments made under this clause (e) do not exceed in any calendar year $5.0 million (with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum of $10.0 million in any calendar year);
(6) repurchases, redemptions or other acquisitions or retirements for value of Equity Interests of the Company deemed to occur upon exercise or exchange of warrants, options or rights to acquire Equity Interests if such Equity Interests represent a portion of the exercise or exchange price of such warrants, options or rights, and any repurchases, redemptions or other acquisitions or retirements for value of Equity Interests made in lieu of withholding taxes in connection with any exercise or exchange of warrants, options or rights to acquire Equity Interests;
(7) payments or distributions to dissenting shareholders pursuant to applicable law in connection with a merger, consolidation or transfer of assets that complies with the provisions of Section 8.1 hereof;
(8) cash payments in lieu of the issuance of fractional shares;
(9) the declaration and payment of regularly scheduled or accrued dividends to holders of any class or series of Disqualified Stock of the Company or any Restricted Subsidiary of the Company, or any class or series of preferred stock of a Restricted Subsidiary of the Company, in each case issued after the Issue Date in accordance with the Consolidated Interest Coverage Ratio test described in Section 10.10(a) hereof and
(10) other Restricted Payments not to exceed $25.0 million in the aggregate since the Issue Date. In determining the aggregate amount of Restricted Payments made subsequent to the Closing DateIssue Date in accordance with clause (3) of Section 10.11(a), which amount amounts expended pursuant to clauses (2), (3), (4), (6), (7), (8), (9) and (10) of this Section 10.11(b) shall be added excluded from the calculation, and amounts expended pursuant to clauses (1) and (5) of this Section 10.10(b) shall be included in the calculation.
(c) The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. For purposes of making such determination, all outstanding Investments by the Company and its Restricted Subsidiaries (except to the Distribution Fund only after extent repaid in cash) in the Subsidiary so designated will be deemed to be Restricted Payments at the time of such conversiondesignation. Notwithstanding the foregoing, the Company may acquire its own capital shares for All such outstanding Investments will be deemed to constitute Investments in an aggregate amount from and after the Closing date equal to the greater of (x1) the sum net book value of such Investments at the time of such designation and (i) 25% of the Cumulative Combined Net Income of the Company subsequent to December 31, 1991, plus (ii) $500,000, or (y2) the amount then available under fair market value of such Investments at the Distribution Fund, which amount shall time of such designation. Such designation will only be charged to the Distribution Fund. No permitted if such Restricted Payment may would be made in permitted at such time.
(d) The amount of all Restricted Payments (other than cash or securities which are actively traded on a nationally recognized public market and have a readily ascertainable market value (which value cash) shall be the amount 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 Payment)Subsidiary, unless as the Company shall have received a report from an independent recognized appraiser as case may be, pursuant to the Restricted Payment. The fair market value of the property to be distributed or transferred, in which case the amount of such any non-cash Restricted Payment shall be deemed to be determined in the greater of its fair value (as determined manner contemplated by such appraiser) or its net book value on the books definition of the Company. Notwithstanding any of the foregoing provisions of this paragraph, neither the Company nor any Subsidiary or Affiliate shall make any Restricted Payment if at the time or after giving effect thereto, there shall exist any Defaultterm “fair market value.”
Appears in 1 contract
Sources: First Supplemental Indenture (Frontier Oil Corp /New/)
Restricted Payments. Neither Declare or pay any dividend (other than dividends payable solely in common stock of the Person making such dividend) on, or make any payment on account of, or set apart assets for a sinking or other analogous fund for, the purchase, redemption, defeasance, retirement or other acquisition of, any Capital Stock of any Group Member (or enter into or be party to, or make any payment under, any Synthetic Purchase Agreement with respect to any such Capital Stock if the purchase, redemption, defeasance, retirement or other acquisition thereof by the Company nor and its Subsidiaries would otherwise be prohibited under this Section 7.6), whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of the Company, the Co-Borrowers or any Subsidiary Guarantor, or enter into any derivatives or other transaction with any financial institution, commodities or stock exchange or clearinghouse (a “Derivatives Counterparty”) obligating any Group Member to make payments (other than payments solely in the form of common stock of the Company) to such Derivatives Counterparty as a result of any change in market value of any such Capital Stock (collectively, “Restricted Payments”), except that:
(a) any Subsidiary Guarantor may pay cash dividends or distributions on its Capital Stock to the Company or any of its Subsidiaries Subsidiaries; and
(b) so long as no Default or Affiliates Event of Default shall make any have occurred and be continuing or would result therefrom at the time such dividends are declared or other Restricted Payment or set aside any funds therefor unless, after giving effect thereto, the aggregate of is made (determined on a pro forma basis as if such Restricted Payments for all such purposes subsequent to or dividends were paid in cash on the Closing Date would not exceed the sum (date declared or made, as in effect from time to time, hereinafter referred to as the "Distribution Fund") of (i) 50% of the Company's Cumulative Combined Net Income subsequent to December 31, 1991 so long as the Company's Combined Tangible Net Worth is greater than $31,051,000, (ii) the aggregate of the net cash proceeds received by the Company from any issuance or sale of capital shares of the Company subsequent to the Closing Date, and (iii) the aggregate of the net cash proceeds received by the Company from any issuance of any Indebtedness of the Company which has been converted into capital shares of the Company subsequent to the Closing Date, which amount shall be added to the Distribution Fund only after such conversion. Notwithstanding the foregoingapplicable), the Company may acquire its own capital shares for an aggregate amount from and after the Closing date equal to the greater of (x) the sum of (i) 25% of the Cumulative Combined Net Income of the Company subsequent to December 31, 1991, plus (ii) $500,000, or (y) the amount then available under the Distribution Fund, which amount shall be charged to the Distribution Fund. No Restricted Payment may be made in other than cash or securities which are actively traded on a nationally recognized public market and have a readily ascertainable market value (which value shall be the amount of such Restricted Payment), unless the Company shall have received a report from an independent recognized appraiser as to the fair value of the property to be distributed or transferred, in which case the amount of such Restricted Payment shall be deemed to be the greater of its fair value (as determined by such appraiser) or its net book value on the books of the Company. Notwithstanding any of the foregoing provisions of this paragraph, neither the Company nor any Subsidiary or Affiliate shall make any Restricted Payment if at the time or after giving effect thereto, there shall exist any DefaultPayments.
Appears in 1 contract