Capital Distributions. (a) Neither Borrower shall, and neither Borrower shall permit any of its Subsidiaries or any Holdco Affiliate to, make, or declare or incur any liability to make, any Capital Distribution, except that: (i) any Subsidiary of a Borrower may make Capital Distributions to such Borrower or to a wholly owned Subsidiary of such Borrower; (ii) CTC-Del may make Capital Distributions to Holdco solely in order to permit Holdco to pay its out-of-pocket costs for corporate development and overhead and to pay cash interest expense actually incurred by Holdco on Permitted Indebtedness (as that term is defined in the Amended and Restated Holdco Guaranty executed and delivered by Holdco pursuant to the Fourth Amendment) so long as: (A) the aggregate amount of such Capital Distributions does not exceed $6,000,000 in any year ending on or prior to the fifth anniversary of the effective date of the Fourth Amendment or $28,000,000 in any year thereafter; (B) prior to making any such distribution, the Borrowers shall have demonstrated to the satisfaction of the Agent that the Borrowers will be in compliance with all of the covenants contained herein after giving effect to such distribution; (C) no Possible Default or Event of Default exists at the time of making such distribution or would exist after giving effect thereto; (D) prior to making any such distribution, the Borrowers shall have delivered to the Agent a certificate of their chief financial officers in form and substance satisfactory to the Agent which shall contain calculations demonstrating on a pro forma basis the Borrowers' compliance with the financial covenants set forth in this Section 8 after giving effect to such distribution; and (E) such distributions shall not be made more frequently than four times per year; and (iii) CTC-Del may make Capital Distributions to Holdco solely in order to permit Holdco to pay that portion of the federal, state and local income tax liability (exclusive of penalties and interest) of Holdco which arises from the allocation to Holdco for income tax purposes of taxable income and/or taxable gain of the Borrowers (not to exceed the actual federal, state and local income tax liability of Holdco) so long as: (A) prior to making any such distribution, the Borrowers shall have demonstrated to the satisfaction of the Agent that the Borrowers will be in compliance with all of the covenants contained herein after giving effect to such distribution; (B) no Possible Default or Event of Default exists at the time of making such distribution or would exist after giving effect thereto; (C) prior to making any such distribution, the Borrowers shall have delivered to the Agent a certificate of their chief financial officers in form and substance satisfactory to the Agent which shall contain calculations demonstrating on a pro forma basis the Borrowers' compliance with the financial covenants set forth in this Section 8 after giving effect to such distribution and the calculation of such income tax liability; and (D) such distributions shall not be made more frequently than four times per year. (b) Neither Borrower shall permit any of its Subsidiaries or any Holdco Affiliate to agree to or to be subject to any restriction on its ability to make Capital Distributions or loans or loan repayments or other asset transfers to its stockholders other than restrictions imposed by applicable law and the restrictions set forth in this Section. (s) Section 8.10 shall be amended in its entirety to read as follows:
Appears in 1 contract
Capital Distributions. (a) Neither The Borrower shallshall not, and neither Borrower shall not permit any of its Subsidiaries or any Holdco Affiliate to, make, or declare or incur any liability to make, any Capital Distribution, except that:
(i) any Subsidiary of a the Borrower may make Capital Distributions to such the Borrower or to a wholly owned Subsidiary of such the Borrower;
(ii) CTC-Del the Borrower may make Capital Distributions to Holdco (A) solely in order to permit Holdco to pay its actual out-of-pocket costs for corporate development in respect of directors and overhead officers liability insurance, costs of filings in Delaware and other jurisdictions where Holdco may be qualified or registered to pay cash interest expense actually incurred by Holdco on Permitted Indebtedness (as that term is defined in the Amended conduct business and Restated Holdco Guaranty executed customary record keeping and delivered by Holdco pursuant to the Fourth Amendment) financial reporting, so long as: (A) as the aggregate amount of such Capital Distributions does not exceed $6,000,000 100,000 in any year ending on or prior to the fifth anniversary of the effective date of the Fourth Amendment or $28,000,000 in any year thereafter; year, and (B) prior to making any such distribution, the Borrowers shall have demonstrated to the satisfaction of the Agent that the Borrowers will be in compliance with all of the covenants contained herein after giving effect to such distribution; (C) no Possible Default or Event of Default exists at the time of making such distribution or would exist after giving effect thereto; (D) prior to making any such distribution, the Borrowers shall have delivered to the Agent a certificate of their chief financial officers in form and substance satisfactory to the Agent which shall contain calculations demonstrating on a pro forma basis the Borrowers' compliance with the financial covenants set forth in this Section 8 after giving effect to such distribution; and (E) such distributions shall not be made more frequently than four times per year; and
(iii) CTC-Del may make Capital Distributions to Holdco solely in order to permit Holdco to pay that portion of the federal, state and local income tax liability (exclusive of penalties and interest) of Holdco which arises from the allocation to Holdco for income tax purposes of taxable income and/or or taxable gain of the Borrowers Borrower (not to exceed the actual federal, state and local income tax liability of Holdco) ), so long asas in each case: (AI) prior to making any such distribution, the Borrowers Borrower shall have demonstrated to the satisfaction of the Agent that the Borrowers Borrower will be in compliance with all of the covenants contained herein after giving effect to such distribution; (BII) no Possible Default or Event of Default exists at the time of making such distribution or would exist after giving effect thereto; (CIII) prior to making any such distribution, the Borrowers Borrower shall have delivered to the Agent a certificate of their its chief financial officers officer in form and substance satisfactory to the Agent which shall contain calculations demonstrating on a pro forma basis the Borrowers' Borrower's compliance with the financial covenants set forth in this Section 8 after giving effect to such distribution and the calculation of such income tax liabilitydistribution; and (DIV) such distributions shall not be made more frequently than four times per year; and (V) with respect to distributions pursuant to clause (B) above, prior to such distribution, the chief financial officer of the Borrower shall have executed and delivered to the Agent a certificate in form and substance satisfactory to the Agent stating the amount of each tax liability for which a distribution is to be made and stating in reasonable detail the basis for and method of calculating such tax liability; and
(iii) the Borrower may make a Capital Distribution to Holdco on the Closing Date in an amount not to exceed $380,000,000 in connection with the consummation of the transactions contemplated by the Formation Agreement, of which no more than $180,000,000 may be borrowed pursuant hereto (without the consent of all of the Banks) and the balance shall be paid from the proceeds of a cash distribution made to the Borrower by the Tower Subsidiary from the proceeds of the Bidder Contributed Cash (as that term is defined in the Formation Agreement). The foregoing amounts shall be reduced pursuant to the provisions of Section 3.8 and 3.9 of the Formation Agreement, to the extent applicable.
(b) Neither The Borrower shall not permit any of its Subsidiaries or any Holdco Affiliate to agree to or to be subject to any restriction on its ability to make Capital Distributions or loans or loan repayments or other asset transfers to its members, partners, stockholders or other equity holders other than (i) restrictions imposed by applicable law and law, (ii) the restrictions set forth in this Section, (iii) restrictions set forth in the Operating Agreement of such Subsidiary as in effect as of the date hereof or as amended pursuant to Section 8.13 and (iv) customary non-assignment provisions contained in leases.
(s) Section 8.10 shall be amended in its entirety to read as follows:
Appears in 1 contract
Capital Distributions. (a) Neither Borrower shall, and neither Borrower shall permit any of its Subsidiaries or any Holdco Affiliate to, make, or declare or incur any liability to make, any Capital Distribution, except that:
(i) any Subsidiary of a Borrower may make Capital Distributions to such Borrower or to a wholly owned Subsidiary of such Borrower;
(ii) CTC-Del CCI may make Capital Distributions to Holdco solely in order to permit Holdco to pay its out-of-pocket costs for corporate development and overhead and to pay cash interest expense actually incurred by Holdco on Permitted Indebtedness (as that term is defined in the Amended and Restated Holdco Guaranty executed and delivered by Holdco pursuant to the Fourth AmendmentGuaranty) so long as: (A) the aggregate amount of such Capital Distributions does not exceed $6,000,000 in any year ending on or prior to the fifth anniversary of the effective date of the Fourth Amendment October 31, 2002, or $28,000,000 33,000,000 in any year thereafter; (B) prior to making any such distribution, the Borrowers shall have demonstrated to the satisfaction of the Administrative Agent that the Borrowers will be in compliance with all of the covenants contained herein after giving effect to such distribution; (C) no Possible Default or Event of Default exists at the time of making such distribution or would exist after giving effect thereto; (D) prior to making any such distribution, the Borrowers shall have delivered to the Administrative Agent a certificate of their CCI's chief financial officers officer in form and substance satisfactory to the Administrative Agent which shall contain calculations demonstrating on a pro forma basis the Borrowers' compliance with the financial covenants set forth in this Section 8 after giving effect to such distribution; and (E) such distributions shall not be made more frequently than four times per year; and
(iii) CTC-Del CCI may make Capital Distributions to Holdco solely in order to permit Holdco to pay that portion of the federal, state and local income tax liability (exclusive of penalties and interest) of Holdco which arises from the allocation to Holdco for income tax purposes of taxable income and/or taxable gain of the Borrowers (not to exceed the actual federal, state and local income tax liability of Holdco) so long as: (A) prior to making any such distribution, the Borrowers shall have demonstrated to the satisfaction of the Administrative Agent that the Borrowers will be in compliance with all of the covenants contained herein after giving effect to such distribution; (B) no Possible Default or Event of Default exists at the time of making such distribution or would exist after giving effect thereto; (C) prior to making any such distribution, the Borrowers shall have delivered to the Administrative Agent a certificate of their CCI's chief financial officers officer in form and substance satisfactory to the Administrative Agent which shall contain calculations demonstrating on a pro forma basis the Borrowers' compliance with the financial covenants set forth in this Section 8 after giving effect to such distribution and the calculation of such income tax liability; and (D) such distributions shall not be made more frequently than four times per year.
(b) Neither Borrower shall permit any of its Subsidiaries or any Holdco Affiliate to agree to or to be subject to any restriction on its ability to make Capital Distributions or loans or loan repayments or other asset transfers to its stockholders other than restrictions imposed by applicable law and the restrictions set forth in this Section.
(s) Section 8.10 shall be amended in its entirety to read as follows:
Appears in 1 contract