FairPoint Communications 2002 Annual Report Download - page 134

(3) purchase, repurchase, redeem, legally defease, acquire or
retire for value any Subordinated Obligations in exchange for, or out
of the proceeds of the substantially concurrent sale of, Permitted
Refinancing Debt; provided, HOWEVER, that such purchase, repurchase,
redemption, legal defeasance, acquisition or retirement shall be
excluded in the calculation of the amount of Restricted Payments;
(4) repurchase shares of, or options to purchase shares of,
common stock of the Company or any of its Subsidiaries from current or
former officers, directors or employees of the Company or any of its
Subsidiaries (or permitted transferees of such current or former
officers, directors or employees), pursuant to the terms of agreements
(including employment agreements) or plans (or amendments thereto)
approved by the Board of Directors under which such individuals
purchase or sell, or are granted the option to purchase or sell,
shares of such common stock; PROVIDED, HOWEVER, that (i) the aggregate
amount of such repurchases shall not exceed $5.0 million in any fiscal
year, (ii) such repurchases shall be included in the calculation of
the amount of Restricted Payments and (iii) at the time of any such
repurchase, no Default or Event of Default shall have occurred and be
continuing (or result therefrom);
(5) pay the fees and expenses described in Section 4.09(5),
PROVIDED, HOWEVER, that any such fees or expenses paid in excess of
$1.0 million per fiscal year shall be included in the calculation of
the amount of Restricted Payments;
(6) following the first Public Equity Offering that results in a
Public Market, pay dividends on the common stock of the Company of up
to 6.0% per annum of the cash proceeds (net of underwriters' fees,
discounts or commissions) of such first Public Equity Offering;
PROVIDED, HOWEVER, that (i) such dividends shall be (x) paid PRO RATA
to the holders of all classes of common stock of the Company and (y)
included in the calculation of the amount of Restricted Payments and
(ii) at the time of payment of any such dividend, no Default or Event
of Default shall have occurred and be continuing (or result
therefrom); and
(7) on the Issue Date, (x) purchase shares of the Company's
Series A Preferred Stock (together with accrued and unpaid dividends
thereon to the Issue Date) for an aggregate purchase price not to
exceed $8,650,000 and (y) purchase Existing Notes for an aggregate
purchase price not to exceed $14,000,000 (plus pay accrued and unpaid
interest thereon to the Issue Date), PROVIDED that each such purchase
shall be excluded from the calculation of the amount of Restricted
Payments.
In computing Consolidated Net Income of the Company under clauses (a), (b)
and (c) above, (x) the Company shall use audited financial statements for the
portions 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
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on the books and records of the Company for the remaining portion of such period
and (y) 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 that, at the time of the making of such Restricted Payment,
would in the good faith determination of the Company be permitted under the
requirements of this Indenture, 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.