Distributions; Capital Change; Restricted Investments. Neither the Borrower nor any of its Subsidiaries shall (i) directly or indirectly declare or make, or incur any liability to make, any Distribution, except Distributions to the Borrower by its Subsidiaries, (ii) make any change in its capital structure which could have a Material Adverse Effect or (iii) make any Restricted Investment.
Distributions; Capital Change; Restricted Investments. No US Borrower nor any of its Subsidiaries shall:
(a) directly or indirectly declare or make, or incur any liability to make (provided, however, that nothing herein shall prevent the US Borrowers or any of their Subsidiaries from entering into any agreement subject to appropriate conditions precedent providing for repayment in full of all Obligations other than indemnities and contingent Obligations not accrued and payable), any Distributions, except, without duplication:
(i) Distributions to holders of Capital Stock consisting of dividends payable in Capital Stock, and, only if such Capital Stock is Preferred Stock, such distribution of Preferred Stock is permitted pursuant to Section 7.34;
(ii) Distributions to a US Borrower or a Wholly-owned Subsidiary of a US Borrower by its Subsidiaries, and Distributions to the UK Borrower or a Wholly-owned Subsidiary of the UK Borrower by its Subsidiaries, in each case other than a Distribution by a Credit Party to a Subsidiary which is not a Credit Party; provided, in the case of any Distribution by Ravenstock to the US Borrowers (and in the case of any other Distribution by a UK Credit Party to a US Credit Party), that at the time of and after giving effect to each such Distribution: (A) no Default or Event of Default exists under Section 9.1(a), (B) no Default or Event of Default exists in the observance or performance of any of the covenants and agreements contained in Section 7.23 through Section 7.26, inclusive and (C) UK Availability is greater than or equal to £4,000,000;
(iii) payments to repurchase or retire any Capital Stock of the Parent Guarantor made to departed employees, officers or directors of any Credit Party not to exceed $2,000,000 in the aggregate per Fiscal Year, with any unused amount in any Fiscal Year carried over to the next Fiscal Year up to an aggregate principal amount not to exceed $6,000,000 in any Fiscal Year and Distributions by Mobile Services to Intermediary, and by Intermediary to the Parent Guarantor to enable the Parent Guarantor to make the payments permitted pursuant to this Section 7.10(a)(iii)); provided that at the time of and after giving effect to each such Distribution: (i) no Default or Event of Default exists under Section 9.1(a), (ii) no Default or Event of Default exists in the observance or performance of any of the covenants and agreements contained in Section 7.23 through Section 7.26, inclusive and (iii) Total Excess Availability is greater than or equal to the ...
Distributions; Capital Change; Restricted Investments. Such Loan Party shall not, and shall not suffer or permit any of its Subsidiaries to, (i) directly or indirectly declare or make, or incur any liability to make, any Distribution, except a Distribution to a Loan Party, (ii) make any change in its capital structure which could have a Material Adverse Effect or issue any capital stock other than common stock or (iii) make any Restricted Investment.
Distributions; Capital Change; Restricted Investments. Except for (1) Permitted Transactions, (2) Permitted Acquisitions and (3) so long as the holders of any such preferred Stock do not have any redemption rights on or prior to the date ninety one (91) days following the Termination Date, the issuance of preferred Stock, no Borrower Party shall (a) directly or indirectly declare or make, or incur any liability to make, any Distribution, except Distributions to a Borrower by its Subsidiaries, (b) make any change in its capital structure which could have a Material Adverse Effect or (c) make any Restricted Investment.
Distributions; Capital Change; Restricted Investments. No Loan Party nor any of their Restricted Subsidiaries shall:
(a) directly or indirectly declare or make, or incur any liability to make, any Distribution (other than Distributions payable in Capital Stock (other than Disqualified Stock) of Westlake), except:
(i) Distributions made and/or declared by wholly owned Subsidiaries;
(ii) Distributions made and/or declared by Westlake and non-wholly owned Subsidiaries, if, on a pro forma basis after giving effect to such Distribution: (A) the Availability equals or exceeds the greater of (x) 25% of the Maximum Revolver Amount and (y) $100,000,000; or (B) to the extent the requirement in clause (A) is not met, (I) the Availability equals or exceeds the greater of (x) 17.5% of the Maximum Revolver Amount and (y) $70,000,000 and (II) the Fixed Charge Coverage Ratio is at least 1.0:1.0; and
(iii) without limiting the amount permitted under clause (ii) above, Distributions made and/or declared by Westlake and non-wholly owned Subsidiaries in the aggregate of up to $25,000,000, if, on a pro forma basis after giving effect to such Distribution, either (A) the Availability equals or exceeds the greater of (x) 17.5% of the Maximum Revolver Amount and (y) $70,000,000, or (B) the Fixed Charge Coverage Ratio is at least 1.0:1.0; provided that for purposes of a Distribution, the Availability shall be calculated based on the most recent Borrowing Base Certificate delivered pursuant to this Agreement prior to such Distribution (provided that the amount of Eligible Cash shall be the amount on deposit on the date of such Distribution and provided further that the Aggregate Revolver Outstandings shall be calculated on the date of such Distribution) and Distributions are permitted hereunder only if no Default or Event of Default then exists and only to the extent that any such Distribution is made and/or declared in accordance with applicable Requirement of Law and constitutes a valid, non voidable transaction.
(b) make any change in its capital structure which could reasonably be expected to have a Material Adverse Effect; or
(c) make any Restricted Investment, except:
(i) Restricted Investment made by the Loan Parties, if on a pro forma basis after giving effect to such Restricted Investment, (A) the Availability equals or exceeds the greater of (x) 25% of the Maximum Revolver Amount and (y) $100,000,000; or (B) to the extent the requirement in clause (A) is not met, (I) the Availability equals or exceeds the greater of (x) 17.5%...
Distributions; Capital Change; Restricted Investments. Neither the Borrower nor any of its Restricted Subsidiaries shall (a) directly or indirectly declare or make, or incur any liability to make, any Distributions more frequently than after the end of each fiscal quarter to the extent that no Default or Event of Default would occur after giving effect to any such payments, and (b) during any Enhanced Covenant Period, but subject to the Grandfathering Rules (i) directly or indirectly declare or make, or incur any liability to make, any Distribution, except (A) Distributions to the Borrower by its Restricted Subsidiaries, (B) Distributions by any Wholly-Owned Subsidiary to the Borrower or any other Wholly-Owned Subsidiary, (C) redemptions, repurchases, retirements or other acquisitions of any equity interests of the Borrower (1) in exchange for other equity interests of the Borrower upon the conversion of such equity interests into such other equity interests of the Borrower, or (2) out of the proceeds of the substantially concurrent sale (other than to a Subsidiary) of other equity interests of the Borrower, and (D) Distributions by the Borrower to the Parents for “Tax Liability Distributions” contemplated in Section 5.1.1 of the Operating Agreement; (ii) make any change in its capital structure which could have a Material Adverse Effect; or (iii) make any Restricted Investment.
Distributions; Capital Change; Restricted Investments. Neither the Borrower nor any of its Subsidiaries shall (a) directly or indirectly declare or make, or incur any liability to make, any Distribution, except Distributions to the Borrower by its Subsidiaries, (b) make any change in its capital structure which could have a Material Adverse Effect or (c) make any Restricted Investment. Notwithstanding the foregoing, so long as no Event of Default has occurred and is continuing immediately before and after giving effect to the following, Borrower may: (i) purchase its common stock for any Plan not to exceed $1,000,000 in a single transaction or series of related transactions and not to exceed $3,000,000 in the aggregate in any Fiscal Year, (ii) make additional investments in its Subsidiaries formed in the United Kingdom or in its existing joint ventures not to exceed $10,000,000 in the aggregate through the Stated Termination Date; provided that during the first 12 months following the Closing Date, such aggregate investment shall not exceed $3,000,000, (iii) make a dividend to its stockholders once in each Fiscal Quarter commencing with the Fiscal Quarter beginning on June 1, 2003 so long as (A) Borrower has provided Agent with five (5) Business Days prior written notice of its proposal to make a dividend, (B) Agent shall have received Borrower’s quarterly or annual Financial Statements delivered pursuant to Section 5.2(a) or Section 5.2(g) hereof for the immediately prior Fiscal Quarter or Fiscal Year, as applicable, for which Borrower has received written notice from Agent that such Financial Statements are in form and substance satisfactory to Agent in Agent’s reasonable judgment, (C) Borrower’s Availability equals an amount no less than $20,000,000 after giving effect to such dividend and shall continue to exceed $20,000,000 on a pro forma basis for a period of at least 60 days after making such dividend; provided that at the time of making any dividend, Agent shall implement a Reserve against the Borrowing Base in an amount equal to such dividend which Reserve shall be released upon Agent’s determination that Borrower has maintained Availability (which calculation for purposes of this provision only shall exclude such Reserve) of at least $20,000,000 for a 60-day period following such dividend and (D) the aggregate amount of all dividends made in any Fiscal Year does not exceed the amount of dividends permitted to be made to the shareholders of the Borrower under the terms of the Indenture as in effect on...
Distributions; Capital Change; Restricted Investments. No Credit Party shall (i) directly or indirectly declare or make, or incur any liability to make, any Distribution, except (A) in connection with an with an Eligible Securities Repurchase, and (B) Distributions to the Borrower by its Subsidiaries, (ii) make any change in its capital structure which could have a Material Adverse Effect or (iii) make any Investments in or to any Person, except for Permitted Investments.
Distributions; Capital Change; Restricted Investments. Such Loan Party shall not (i) directly or indirectly declare or make, or incur any liability to make, any Distribution, except Distributions to a Loan Party (other than FMXI or the Parent), (ii) make any change in its capital structure which could reasonably be expected to have a Material Adverse Effect or (iii) make any Restricted Investment; provided, however, that notwithstanding clauses (i) and (iii) above:
(A) Foamex may (1) pay cash distributions and make loans and advances to the Parent and pay cash distributions to FMXI (which cash distributions shall in turn immediately be paid by FMXI to the Parent except to the extent used promptly by FMXI to pay operating expenses of FMXI), in each instance, for the purpose of paying, and so long as all proceeds thereof are promptly used by the Parent to pay (i) its operating expenses incurred in the ordinary course of business, (ii) other ordinary course corporate overhead costs and expenses of the Parent and FMXI or (iii) other costs and expenses of the Parent and FMXI that are approved by the Administrative Agent in writing; provided, that (x) the aggregate amount of all such distributions, loans and advances made by Foamex under this clause (1) shall not exceed $2,250,000 during the term of this Agreement and (y) no such distributions, loans or advances may be made by Foamex so long as a Default or Event of Default has occurred and is continuing or would result therefrom and (2) to the extent required under the Tax Sharing Agreement but subject to Section 7.38, pay cash distributions and make loans and advances to the Parent and pay cash distributions to FMXI (which cash distributions shall in turn immediately be paid by FMXI to the Parent, except to the extent used promptly by FMXI to pay the following taxes owing by FMXI), in each instance, for the purpose of paying, and so long as all proceeds thereof are promptly used by the Parent or FMXI to pay, franchise taxes and federal, state and local income taxes, in each instance, solely with respect to (i) the operations of Foamex and its Subsidiaries or (ii) franchise taxes of the Parent and FMXI (other than franchise taxes imposed in lieu of income taxes) and interest and penalties with respect thereto, if any, payable by the Parent or FMXI (provided that any refund (net of Taxes) shall be promptly returned by the Parent or FMXI to Foamex in the form of a repayment of any outstanding loan or advance made to the Parent or FMXI by Foamex or as a capital contri...
Distributions; Capital Change; Restricted Investments. (a) Such Loan Party shall not directly or indirectly declare or make, or incur any liability to make, any Distribution, except,
(i) Distributions among the Loan Parties;
(ii) Distributions by the Borrower in the form of the Tax Dividend, provided that (x) the Lenders or the Agent have not declared any or all of the Obligations due and payable, (y) the Lenders have not terminated this Agreement or the Commitments and (z) there is sufficient Availability if the Tax Dividend is financed by the Revolving Loans;
(iii) Distributions by the Borrower relating to the repayment of the Sponsor Investment (from the proceeds of Revolving Loans) in connection with a successful Requested Increase in the Revolver Credit Commitments (completed in accordance with Section 1.5); provided, however, that, (i) the Revolving Credit Commitments, pursuant to such successful Request Increase, are in an aggregate amount of not less than U.S.$100,000,000, (ii) the Permitted Bridge Facility Refinancing Date has occurred, and (iii) no Default or Event of Default exists and is continuing.
(iv) Distributions in an amount equal to the Available Amount;
(v) Distributions during each Fiscal Year in an aggregate amount not to exceed U.S.$2,000,000 during such Fiscal Year in order to reimburse any Parent Company for all administrative costs and expenses actually incurred by such Parent Company during such Fiscal Year, including organizational fees and expenses, legal fees and expenses and accounting fees and expenses;
(vi) Distributions in connection with the payment of Sponsor Fees;
(vii) Distributions in connection with the redemption or repurchase of the Capital Stock of any Loan Party held by officers, directors, consultants or employees or former officers, directors, consultants or employees of any Loan Party (or their transferees, estates or beneficiaries under their estates); provided that the aggregate cash consideration paid for all such redemptions or repurchases shall not exceed (x) U.S.$1,500,000 during any calendar year (with unused amounts being available to be used in the following calendar year, but not in any succeeding calendar year) plus (y) the net cash proceeds of any “key-man” life insurance policies that have not been applied to the payment of Distributions pursuant to this clause (vii);
(viii) Distributions to any Parent Company not in excess of $1,500,000 in the aggregate to permit such Parent Company to pay reasonable fees and expenses incurred in connection with any ...
