Common use of Investments in Unrestricted Subsidiaries Clause in Contracts

Investments in Unrestricted Subsidiaries. (i) The Company shall not, and shall not permit any Restricted Subsidiary to, make Investments in Unrestricted Subsidiaries or other Persons in cash or other Property of the Company or any Restricted Subsidiary or by issuance of capital stock of a Restricted Subsidiary, unless (x) immediately prior to and after giving effect to such Investment (each, a “Current Investment”), no Default or Event of Default shall have occurred and be continuing and (y) the aggregate book value of such Current Investment, taken together with all other Investments made pursuant to this clause (c)(i) after the February 2005 Amendment Effective Date and prior to the date of such Current Investment, does not exceed 3% of Consolidated Total Assets (determined as at the end of the fiscal quarter most recently ended prior to the date of such Current Investment for which financial statements of the Company and the Restricted Subsidiaries are available), provided that the aggregate amount of such Current Investments permitted under this clause (i) shall not be subject to the limitation contained in clause (y) if: (A) at the time of each Current Investment described in clause (i) above, the Company is in compliance with Section 6.5, Section 6.6, Section 6.7, Section 6.8 and Section 6.10 (the determination of such compliance to be calculated on a pro forma basis, as at the end of the fiscal quarter most recently ended prior to the date of such Current Investment for which financial statements of the Company and the Restricted Subsidiaries are available, under the assumption that such Current Investment shall have been made, and any Debt in connection therewith shall have been incurred, at the beginning of the applicable period and under the further assumption that interest for such period had been equal to the actual weighted average interest rate in effect for such period for all loans outstanding under the Credit Facility on the date of such Current Investment); (B) immediately after such Current Investment is made, the Company would be permitted to borrow at least an additional $300,000,000, under and pursuant to the terms of the Credit Facility (as in effect at such time) and subject to no unsatisfied conditions related to its financial condition or performance or defaults under such Credit Facility; and (C) contemporaneously with the making of such Current Investment, the Company delivers to each Noteholder a certificate of a Senior Financial Officer showing calculations in reasonable detail to demonstrate compliance with the foregoing sub-clauses (A) and (B) and certifying that prior to such Current Investment and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing. (ii) The Company shall not, and shall not permit any Restricted Subsidiary to, make Investments in Unrestricted Subsidiaries or other Persons through the issuance of additional capital stock in the Company, unless immediately prior to and after giving effect to such Investments, no Default or Event of Default shall have occurred and be continuing, and the Company complies with the requirements set forth in sub-clauses (i)(A), (B) and (C) above as if such Investment were being made in cash.

Investments in Unrestricted Subsidiaries. (i) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, make Investments any Investment in any Unrestricted Subsidiaries or other Persons in cash or other Property of the Company or any Restricted Subsidiary or by issuance of capital stock of a Restricted Subsidiary, unless if at the time of such Investment: (xa) immediately prior to and after giving effect to such Investment (each, a “Current Investment”), no Default or Event of Default shall have occurred and be continuing or shall occur as a consequence thereof; or (b) immediately before such Investment, the Company would not be permitted to incur at least $1.00 of Indebtedness pursuant to the first paragraph of Section 4.09 hereof (without giving effect to clauses (i) through (xv) of the second paragraph thereof), which calculation shall be made on a PRO FORMA basis deducting from Adjusted Consolidated Net Income the amount of any Investment the Company has made in an Unrestricted Subsidiary during the relevant period and any Investment the Company intends to make in an Unrestricted Subsidiary, to the extent that such Investment is made with amounts included in Adjusted Consolidated Net Income as a result of Transfers described in clause (c)(x) of Section 4.07 hereof or clause (c)(y) of this Section 4.14; or (c) such Investment, together with the aggregate of all other Investments in Unrestricted Subsidiaries made after May 13, 1992, exceeds (w) the aggregate Consolidated Net Cash Flow of the Company for the period (taken as one accounting period) from the beginning of the first quarter immediately after May 13, 1992 to the end of the Company's most recently ended fiscal quarter at the time of such Investment; PLUS (x) 100% of the aggregate net cash proceeds received by the Company from (i) the issue or sale of Equity Interests of the Company (other than such Equity Interests issued or sold to a Restricted Subsidiary of the Company and other than Redeemable Stock) or (ii) the sale of the stock of an Unrestricted Subsidiary or the sale of all or substantially all of the assets of an Unrestricted Subsidiary to the extent that a liquidating dividend is paid to the Company or any Restricted Subsidiary from the proceeds of such sale; PLUS (y) 100% of the amount of all Transfers from a Net Cash Flow Unrestricted Subsidiary up to the aggregate book Investment (after taking into account all prior Transfers from such Net Cash Flow Unrestricted Subsidiary) in such Net Cash Flow Unrestricted Subsidiary resulting from such payments or transfers of assets (valued in each case as provided in the definition of "Investment"); PLUS (z) in the event of a designation of a Net Cash Flow Unrestricted Subsidiary as a Restricted Subsidiary, 100% of an amount equal to the greater of (A) the fair market value of such Current InvestmentSubsidiary as determined by the Board of Directors in good faith (or, if such fair market value may exceed $25.0 million, as determined in writing by an independent investment banking firm of nationally recognized standing) at the time of the redesignation of such Net Cash Flow Unrestricted Subsidiary as a Restricted Subsidiary and (B) the Consolidated Net Cash Flow generated by such Subsidiary for the period (taken as one accounting period) from the beginning of its first fiscal quarter commencing immediately after the date of its designation as Net Cash Flow an Unrestricted Subsidiary through such Subsidiary's fiscal quarter ending immediately prior to its designation as a Restricted Subsidiary (or if such Consolidated Net Cash Flow for such period is a deficit, 100% of such deficit); PROVIDED, that all such amounts applied pursuant to this clause (c) shall not be available for application under clause (c) of Section 4.07 hereof. The foregoing limitations shall not apply to an Investment to the extent that it is (i) to capitalize a Restricted Payment Unrestricted Subsidiary permitted pursuant to Section 4.07 hereof; (ii) funded by the issuance of Equity Interests of the Company to the extent net proceeds are not used to fund an optional redemption of Notes and (iii) Investments in Unrestricted Subsidiaries having an aggregate fair market value, when taken together with all other Investments made pursuant to this clause (c)(iiii) after the February 2005 Amendment Effective Date and prior that are at that time outstanding, not to the date of such Current Investment, does not exceed 3% of Consolidated Total Assets (determined as at the end of the fiscal quarter most recently ended prior to the date of such Current Investment for which financial statements of the Company and the Restricted Subsidiaries are available), provided that the aggregate amount of such Current Investments permitted under this clause (i) shall not be subject to the limitation contained in clause (y) if: (A) $50.0 million at the time of such Investment (with the fair market value of each Current Investment being measured at the time made and without giving effect to subsequent changes in value). For the purposes of determining compliance with this Section 4.14, in the event that the making of an Investment in an Unrestricted Subsidiary meets the criteria of more than one of the categories of permitted Investments in Unrestricted Subsidiaries described in clause clauses (i) through (iii) above or is entitled to be incurred pursuant to the first paragraph of this Section 4.14 (including clauses (a), (b) and (c) thereof), the Company shall, in its sole discretion, classify such Investment in an Unrestricted Subsidiary in any manner that complies with this Section 4.14 and Investment in an Unrestricted Subsidiary will be treated as having been made pursuant to only one of such clauses or pursuant to the first paragraph of this Section 4.14. All Net Cash Flow Unrestricted Subsidiaries of the Company shall at all times remain wholly-owned, directly or indirectly, by the Company or a wholly-owned Restricted Subsidiary of the Company. Not later than the date of making any Investment described above, the Company is in compliance with Section 6.5, Section 6.6, Section 6.7, Section 6.8 and Section 6.10 (the determination of such compliance to be calculated on a pro forma basis, as at the end of the fiscal quarter most recently ended prior shall deliver to the date of such Current Investment for which financial statements of the Company and the Restricted Subsidiaries are available, under the assumption Trustee an Officer's Certificate stating that such Current Investment shall have been madeis permitted (including, without limitation, whether such Investment is capitalizing a Net Cash Flow Unrestricted Subsidiary or a Restricted Payment Unrestricted Subsidiary) and any Debt in connection therewith shall have been incurredsetting forth the basis upon which the calculations required by this Section 4.14 were computed, at the beginning of the applicable period and under the further assumption that interest for such period had been equal to the actual weighted average interest rate in effect for such period for all loans outstanding under the Credit Facility which calculations may be based on the date of such Current Investment); (B) immediately after such Current Investment is made, the Company would be permitted to borrow at least an additional $300,000,000, under and pursuant to the terms of the Credit Facility (as in effect at such time) and subject to no unsatisfied conditions related to its Company's latest available internal financial condition or performance or defaults under such Credit Facility; and (C) contemporaneously with the making of such Current Investment, the Company delivers to each Noteholder a certificate of a Senior Financial Officer showing calculations in reasonable detail to demonstrate compliance with the foregoing sub-clauses (A) and (B) and certifying that prior to such Current Investment and after giving effect thereto, no Default or Event of Default shall have occurred and be continuingstatements. (ii) The Company shall not, and shall not permit any Restricted Subsidiary to, make Investments in Unrestricted Subsidiaries or other Persons through the issuance of additional capital stock in the Company, unless immediately prior to and after giving effect to such Investments, no Default or Event of Default shall have occurred and be continuing, and the Company complies with the requirements set forth in sub-clauses (i)(A), (B) and (C) above as if such Investment were being made in cash.

Investments in Unrestricted Subsidiaries. (i) The Company shall not, and shall not permit any Restricted Subsidiary to, make Investments in Unrestricted Subsidiaries or other Persons in cash or other Property of the Company or any Restricted Subsidiary or by issuance of capital stock of a Restricted Subsidiary, unless (x) immediately prior to and after giving effect to such Investment (each, a “Current Investment”), no Default or Event of Default shall have occurred and be continuing and (y) the aggregate book value of such Current Investment, taken together with all other Investments made pursuant to this clause (c)(i) after the February 2005 Amendment Effective Date and prior to the date of such Current Investment, does not exceed 3% of Consolidated Total Assets (determined as at the end of the fiscal quarter most recently ended prior to the date of such Current Investment for which financial statements of the Company and the Restricted Subsidiaries are available), provided that the aggregate amount of such Current Investments permitted under this clause (i) shall not be subject to the limitation contained in clause (y) if: (A) at the time of each Current Investment described in clause (i) above, the Company is in compliance with Section 6.5, Section Sections 6.6, Section 6.7, Section 6.8 and Section 6.10 (the determination of such compliance to be calculated on a pro forma basis, as at the end of the fiscal quarter most recently ended prior to the date of such Current Investment for which financial statements of the Company and the Restricted Subsidiaries are available, under the assumption that such Current Investment shall have been made, and any Debt in connection therewith shall have been incurred, at the beginning of the applicable period and under the further assumption that interest for such period had been equal to the actual weighted average interest rate in effect for such period for all loans outstanding under the Credit Facility on the date of such Current Investment); (B) immediately after such Current Investment is made, the Company would be permitted to borrow at least an additional $300,000,000, under and pursuant to the terms of the Credit Facility (as in effect at such time) and subject to no unsatisfied conditions related to its financial condition or performance or defaults under such Credit Facility; and (C) if the aggregate amount of such Current Investment exceeds $100,000,000, contemporaneously with the making of such Current Investment, the Company delivers to each Noteholder a certificate of a Senior Financial Officer showing calculations in reasonable detail to demonstrate compliance with the foregoing sub-clauses (A) and (B) and certifying that prior to such Current Investment and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing. (ii) The Company shall not, and shall not permit any Restricted Subsidiary to, make Investments in Unrestricted Subsidiaries or other Persons through the issuance of additional capital stock in the Company, unless immediately prior to and after giving effect to such Investments, no Default or Event of Default shall have occurred and be continuing, and the Company complies with the requirements set forth in sub-clauses (i)(A), (B) and (C) above as if such Investment were being made in cash.

Investments in Unrestricted Subsidiaries. (i) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, make Investments any Investment in any Unrestricted Subsidiaries or other Persons in cash or other Property of the Company or any Restricted Subsidiary or by issuance of capital stock of a Restricted Subsidiary, unless if at the time of such Investment: (xa) immediately prior to and after giving effect to such Investment (each, a “Current Investment”), no Default or Event of Default shall have occurred and be continuing or shall occur as a consequence thereof; or (b) immediately before such Investment, the Company would not be permitted to incur at least $1.00 of Indebtedness pursuant to the first paragraph of Section 4.09 hereof (without giving effect to clauses (i) through (xv) of the second paragraph thereof), which calculation shall be made on a pro forma basis deducting from Adjusted Consolidated Net Income the amount of any Investment the Company has made in an Unrestricted Subsidiary during the relevant period and any Investment the Company intends to make in an Unrestricted Subsidiary, to the extent that such Investment is made with amounts included in Adjusted Consolidated Net Income as a result of Transfers described in clause (c)(x) of Section 4.07 hereof or clause (c)(y) of this Section 4.14; or (c) such Investment, together with the aggregate of all other Investments in Unrestricted Subsidiaries made after May 13, 1992, exceeds (w) the aggregate Consolidated Net Cash Flow of the Company for the period (taken as one accounting period) from the beginning of the first quarter immediately after May 13, 1992 to the end of the Company's most recently ended fiscal quarter at the time of such Investment; plus (x) 100% of the aggregate net cash proceeds received by the Company from (i) the issue or sale of Equity Interests of the Company (other than such Equity Interests issued or sold to a Restricted Subsidiary of the Company and other than Redeemable Stock) or (ii) the sale of the stock of an Unrestricted Subsidiary or the sale of all or substantially all of the assets of an Unrestricted Subsidiary to the extent that a liquidating dividend is paid to the Company or any Restricted Subsidiary from the proceeds of such sale; plus (y) 100% of the amount of all Transfers from a Net Cash Flow Unrestricted Subsidiary up to the aggregate book Investment (after taking into account all prior Transfers from such Net Cash Flow Unrestricted Subsidiary) in such Net Cash Flow Unrestricted Subsidiary resulting from such payments or transfers of assets (valued in each case as provided in the definition of "Investment"); plus (z) in the event of a designation of a Net Cash Flow Unrestricted Subsidiary as a Restricted Subsidiary, 100% of an amount equal to the greater of (A) the fair market value of such Current InvestmentSubsidiary as determined by the Board of Directors in good faith (or, if such fair market value may exceed $25.0 million, as determined in writing by an independent investment banking firm of nationally recognized standing) at the time of the redesignation of such Net Cash Flow Unrestricted Subsidiary as a Restricted Subsidiary and (B) the Consolidated Net Cash Flow generated by such Subsidiary for the period (taken as one accounting period) from the beginning of its first fiscal quarter commencing immediately after the date of its designation as Net Cash Flow an Unrestricted Subsidiary through such Subsidiary's fiscal quarter ending immediately prior to its designation as a Restricted Subsidiary (or if such Consolidated Net Cash Flow for such period is a deficit, 100% of such deficit); provided, that all such amounts applied pursuant to this clause (c) shall not be available for application under clause (c) of Section 4.07 hereof. The foregoing limitations shall not apply to an Investment to the extent that it is (i) to capitalize a Restricted Payment Unrestricted Subsidiary permitted pursuant to Section 4.07 hereof; (ii) funded by the issuance of Equity Interests of the Company to the extent net proceeds are not used to fund an optional redemption of Notes and (iii) Investments in Unrestricted Subsidiaries having an aggregate fair market value, when taken together with all other Investments made pursuant to this clause (c)(iiii) after the February 2005 Amendment Effective Date and prior that are at that time outstanding, not to the date of such Current Investment, does not exceed 3% of Consolidated Total Assets (determined as at the end of the fiscal quarter most recently ended prior to the date of such Current Investment for which financial statements of the Company and the Restricted Subsidiaries are available), provided that the aggregate amount of such Current Investments permitted under this clause (i) shall not be subject to the limitation contained in clause (y) if: (A) $50.0 million at the time of such Investment (with the fair market value of each Current Investment being measured at the time made and without giving effect to subsequent changes in value). For the purposes of determining compliance with this Section 4.14, in the event that the making of an Investment in an Unrestricted Subsidiary meets the criteria of more than one of the categories of permitted Investments in Unrestricted Subsidiaries described in clause clauses (i) through (iii) above or is entitled to be incurred pursuant to the first paragraph of this Section 4.14 (including clauses (a), (b) and (c) thereof), the Company shall, in its sole discretion, classify such Investment in an Unrestricted Subsidiary in any manner that complies with this Section 4.14 and Investment in an Unrestricted Subsidiary will be treated as having been made pursuant to only one of such clauses or pursuant to the first paragraph of this Section 4.14. All Net Cash Flow Unrestricted Subsidiaries of the Company shall at all times remain wholly-owned, directly or indirectly, by the Company or a wholly-owned Restricted Subsidiary of the Company. Not later than the date of making any Investment described above, the Company is in compliance with Section 6.5, Section 6.6, Section 6.7, Section 6.8 and Section 6.10 (the determination of such compliance to be calculated on a pro forma basis, as at the end of the fiscal quarter most recently ended prior shall deliver to the date of such Current Investment for which financial statements of the Company and the Restricted Subsidiaries are available, under the assumption Trustee an Officer's Certificate stating that such Current Investment shall have been madeis permitted (including, without limitation, whether such Investment is capitalizing a Net Cash Flow Unrestricted Subsidiary or a Restricted Payment Unrestricted Subsidiary) and any Debt in connection therewith shall have been incurredsetting forth the basis upon which the calculations required by this Section 4.14 were computed, at the beginning of the applicable period and under the further assumption that interest for such period had been equal to the actual weighted average interest rate in effect for such period for all loans outstanding under the Credit Facility which calculations may be based on the date of such Current Investment); (B) immediately after such Current Investment is made, the Company would be permitted to borrow at least an additional $300,000,000, under and pursuant to the terms of the Credit Facility (as in effect at such time) and subject to no unsatisfied conditions related to its Company's latest available internal financial condition or performance or defaults under such Credit Facility; and (C) contemporaneously with the making of such Current Investment, the Company delivers to each Noteholder a certificate of a Senior Financial Officer showing calculations in reasonable detail to demonstrate compliance with the foregoing sub-clauses (A) and (B) and certifying that prior to such Current Investment and after giving effect thereto, no Default or Event of Default shall have occurred and be continuingstatements. (ii) The Company shall not, and shall not permit any Restricted Subsidiary to, make Investments in Unrestricted Subsidiaries or other Persons through the issuance of additional capital stock in the Company, unless immediately prior to and after giving effect to such Investments, no Default or Event of Default shall have occurred and be continuing, and the Company complies with the requirements set forth in sub-clauses (i)(A), (B) and (C) above as if such Investment were being made in cash.