Common use of Restrictions on Payments Clause in Contracts

Restrictions on Payments. Notwithstanding any provision of the Subordinated Instruments to the contrary and in addition to any other limitations set forth herein or therein, no payment of principal, interest, dividends, fees or any other amount due with respect to the Subordinated Obligations shall be made, and no Subordinated Holder shall exercise any right of set-off (other than a set-off by Senior Subordinated Lender of the exercise price of the warrant issued to it by Parent on the Closing Date against the Senior Subordinated Indebtedness provided the amount of such set-off does not exceed $3,500 in the aggregate) or recoupment with respect to any Subordinated Obligations, until all of the Senior Indebtedness is paid in full, except that, subject to the proviso at the end of this Section 2.2, (i) on April 1, 1996, Borrower may make and the applicable Subordinated Holder may receive and retain all Subordinated Payments accrued through March 31, 1996 and (ii) on the first Business Day after the end of each Fiscal Quarter commencing with the Fiscal Quarter ending June 30, 1996 Borrower may make and the applicable Subordinated Holder may receive and retain accrued and unpaid Subordinated Payments in an aggregate amount not to exceed Available Cash as of the most recent Determination Date in the following order of priority: (a) first, all accrued and unpaid Senior Subordinated Payments; (b) second, all accrued and unpaid Junior Subordinated Payments; and (c) third, all accrued and unpaid Preferred Dividends and Incentive Management Fees, pro rata to the aggregate amount thereof then outstanding; provided, that in the event that due to the payment restrictions of this Section 2.2 any Junior Subordinated Payments, Preferred Dividends or Incentive Management Fees have accrued with respect to any prior Fiscal Quarter and remain unpaid, no Junior Subordinated Payments, Preferred Dividends and Incentive Management Fees shall be paid except to the extent of any Cash Overage.

Restrictions on Payments. Notwithstanding So long as any provision Subordinated Debentures remain outstanding, if there shall have occurred an Event of Default (as defined in the Subordinated Instruments Indenture), or an event of which the Company has actual knowledge that, with the giving of notice or the lapse of time or both, would constitute an Event of Default under the Indenture and in respect of which the Company shall not have taken reasonable steps to cure or the Company is in default with respect to the contrary and in addition to any other limitations set forth herein or therein, no payment of principalany obligations under the Preferred Securities Guarantee, interest, dividends, fees or any other amount due if the Company has given notice of its selection of an Extended Interest Payment Period with respect to the Subordinated Obligations Debentures pursuant to Section 4.1 hereof and shall be madenot have rescinded such notice, or such Excluded Interest Payment Period, or any extension thereof, is continuing, then, in each case, (a) the Company shall not declare or pay any dividend on, or make any distribution with respect to, or redeem, purchase, acquire or make a liquidation payment with respect to, any of its capital stock, (b) the Company shall not make any payment of interest, principal or premium, if any, on or repay, repurchase or redeem any debt securities (including guarantees of indebtedness for money borrowed) issued by the Company which rank pari passu with or junior to the Subordinated Debentures, and no Subordinated Holder (c) the Company shall exercise not make any right of set-off (other than a set-off by Senior Subordinated Lender of the exercise price of the warrant issued to it by Parent on the Closing Date against the Senior Subordinated Indebtedness provided the amount of such set-off does not exceed $3,500 in the aggregate) or recoupment payments with respect to any Subordinated Obligations, until all guarantee of a debt security of any of the Senior Indebtedness is paid in full, except that, subject Company's subsidiaries (including other guarantees) if such guarantee ranks pari passu with or junior to the proviso at Subordinated Debentures; provided that the end of foregoing restrictions in this Section 2.2, 4.3 shall not apply to (i) on April 1repurchases, 1996redemptions or other acquisitions of shares of capital stock of the Company (A) in connection with any employment contract, Borrower may make and benefit plan or other similar arrangement with or for the applicable Subordinated Holder may receive and retain all Subordinated Payments accrued through March 31benefit of any one or more employees, 1996 and officers, directors or consultants or (B) in connection with a dividend reinvestment or stockholder stock purchase plan, (ii) on the first Business Day after issuance of common stock of the end Company (or securities convertible into or exercisable for such common stock) as consideration in an acquisition transaction entered into prior to such Extended Interest Payment Period, (iii) the reclassification of each Fiscal Quarter commencing the capital stock of the Company or the exchange or conversion of any class or series of the Company's capital stock for another class or series of the Company's capital stock, provided that such reclassification, exchange or conversion does not include any cash payments, (iv) the purchase of fractional interests in shares of the Company's capital stock pursuant to the conversion or exchange provisions of such capital stock or the security being converted or exchanged, (v) the issuance of the capital stock of the Company in connection with the Fiscal Quarter ending June 30exercise of certain rights on convertible securities, 1996 Borrower may make and the applicable Subordinated Holder may receive and retain accrued and unpaid Subordinated Payments in an aggregate amount not to exceed Available Cash as of the most recent Determination Date (vi) any dividend in the following order form of priority: common stock, warrants, options or other rights where the dividend stock or the stock issuable upon exercise of such warrants, options or other rights is common stock, or (avii) first, all accrued and unpaid Senior Subordinated Payments; (b) second, all accrued and unpaid Junior Subordinated Payments; and (c) third, all accrued and unpaid payments by the Company under the Preferred Dividends and Incentive Management Fees, pro rata to Securities Guarantee or under any similar guarantee by the aggregate amount thereof then outstanding; provided, that in the event that due to the payment restrictions of this Section 2.2 any Junior Subordinated Payments, Preferred Dividends or Incentive Management Fees have accrued Company with respect to any prior Fiscal Quarter and remain unpaidsecurities of its subsidiaries that are made on a pro rata basis on all such guarantees, no Junior provided the proceeds from the issuance of such securities were used to purchase Subordinated Payments, Preferred Dividends and Incentive Management Fees shall be paid except to the extent of any Cash OverageDebentures.

Restrictions on Payments. Notwithstanding the foregoing, Borrower may not make, and Subordinated Creditor may not accept or retain, any provision of the Permitted Subordinated Instruments to the contrary and in addition to any other limitations set forth herein or therein, no payment of principal, interest, dividends, fees Indebtedness Payment or any other amount due with respect to the Subordinated Obligations Indebtedness if, at the time of such payment, Subordinated Creditor shall be madehave received a Senior Default Notice from Senior Creditor stating that a Senior Default exists, and no Subordinated Holder shall exercise any right of set-off for each period (other than each, a set-off by Senior Subordinated Lender of the exercise price of the warrant issued to it by Parent “Payment Blockage Period”) commencing on the Closing Date against the Senior Subordinated Indebtedness provided the amount of such set-off does not exceed $3,500 in the aggregate) or recoupment with respect to any Subordinated Obligations, until all date of the Senior Indebtedness is paid in full, except that, subject to the proviso at the end of this Section 2.2, (i) on April 1, 1996, Borrower may make Default Notice and the applicable Subordinated Holder may receive and retain all Subordinated Payments accrued through March 31, 1996 and (ii) on the first Business Day after the end of each Fiscal Quarter commencing with the Fiscal Quarter ending June 30, 1996 Borrower may make and the applicable Subordinated Holder may receive and retain accrued and unpaid Subordinated Payments in an aggregate amount not to exceed Available Cash as of the most recent Determination Date in the following order of prioritycontinuing until: (a) firstwith respect to each Senior Default Notice identifying any Senior Payment Defaults: the date on which each of the Senior Payment Defaults identified in such Senior Default Notice shall have been cured or waived (as evidenced by a written notice of cure or waiver from Senior Creditor to the Borrower, all accrued which written notice shall be sent promptly upon such cure or waiver). So long as any Senior Payment Default shall be continuing, any number of Senior Default Notices identifying Senior Payment Defaults may be given and unpaid any number of Payment Blockage Periods may be commenced by Senior Subordinated Payments;Creditor pursuant to this paragraph (a); and (b) second(i) with respect to each Senior Default Notice identifying any Senior Covenant Defaults resulting in the commencement of an Enforcement Action by Senior Creditor, all accrued and unpaid Junior Subordinated Payments; and the date on which each of the Senior Covenant Defaults identified in such Senior Default Notice shall have been cured or waived (c) third, all accrued and unpaid Preferred Dividends and Incentive Management Fees, pro rata as evidenced by a written notice of cure or waiver from Senior Creditor to the aggregate amount thereof Borrower, which written notice shall be sent promptly upon such cure or waiver) or such Enforcement Action shall have been terminated, dismissed or withdrawn and (ii) with respect to each Senior Default Notice identifying any Senior Covenant Defaults not resulting in the commencement of an Enforcement Action by Senior Creditor, the earlier to occur of the following: (x) the date fifteen (15) days after the commencement of such Payment Blockage Period; or (y) the date on which each of the Senior Covenant Defaults identified in such Senior Default Notice shall have been cured or waived (as evidenced by a written notice of cure or waiver from Senior Creditor to the Borrower). Senior Creditor shall not be permitted to send more than two (2) Senior Default Notices identifying Senior Covenant Defaults (not resulting in an Enforcement Action) during any period of 365 consecutive days; provided that, no such limitation shall apply if Senior Creditor has then outstanding(A) issued a Senior Default Notice identifying a Senior Payment Default (which has not been waived or cured) or (B) initiated an Enforcement Action (which has not been terminated, dismissed or withdrawn); provided, that in the event that however, that, so long as Senior Creditor has not then commenced an Enforcement Action, Borrower may resume Permitted Subordinated Indebtedness Payments to Subordinated Creditor (and may make any Permitted Subordinated Indebtedness Payments missed due to the payment restrictions application of the preceding paragraphs (a) and (b)), and Subordinated Creditor may accept and retain such Permitted Subordinated Indebtedness Payments, but only to the extent then actually due and payable in cash under the Subordinated Indebtedness Documents and without regard to any acceleration of any amounts (which amounts may be accrued) due under the Subordinated Indebtedness Documents. Notwithstanding anything herein to the contrary, Borrower shall not be prohibited from making, and Subordinated Creditor shall not be prohibited from receiving, Permitted Subordinated Indebtedness Payments to the extent made on a paid-in-kind or accretion basis (and not made in cash), including default or other interest on Subordinated Indebtedness evidenced by the Subordinated Indebtedness Documents. Subordinated Creditor shall promptly deliver to Senior Creditor, in the form received (except for endorsement or assignment by Senior Creditor where required by Senior Creditor) for application to the Senior Indebtedness any payment, distribution, security or proceeds received by Subordinated Creditor with respect to the Subordinated Indebtedness other than in accordance with this Agreement. The parties acknowledge and agree that the provisions of this Section 2.2 2.3 shall not apply to any Junior Subordinated Payments, Preferred Dividends or Incentive Management Fees have accrued payment with respect to any prior Fiscal Quarter and remain unpaid, no Junior Subordinated Payments, Preferred Dividends and Incentive Management Fees shall which Section 2.4 would be paid except to the extent of any Cash Overageapplicable.

Restrictions on Payments. Notwithstanding any provision of the Subordinated Instruments to the contrary and in addition to any other limitations set forth herein or therein, except as expressly permitted under this Section 2.3, no payment of principal, interest, dividends, fees or any other amount due with respect to the Subordinated Obligations Indebtedness shall be made, and no Subordinated Holder Lender shall not exercise any right of set-off (other than a set-off by Senior Subordinated Lender of the exercise price of the warrant issued to it by Parent on the Closing Date against the Senior Subordinated Indebtedness provided the amount of such set-off does not exceed $3,500 in the aggregate) setoff or recoupment with respect to any Subordinated ObligationsIndebtedness, until all of the Senior Indebtedness is paid in full, except that, subject full in cash. Prior to the proviso at date the end of this Section 2.2, (i) on April 1, 1996Senior Indebtedness is paid in full in cash, Borrower may only make and Subordinated Lender may only receive the applicable Subordinated Holder may receive and retain all Subordinated Payments accrued through March 31, 1996 and (ii) payments described on the first Business Day after the end of each Fiscal Quarter commencing with the Fiscal Quarter ending June 30, 1996 Borrower may make and the applicable Subordinated Holder may receive and retain accrued and unpaid Subordinated Payments in an aggregate amount not to exceed Available Cash as of the most recent Determination Date in the following order of priority: (a) first, all accrued and unpaid Senior Subordinated Payments; (b) second, all accrued and unpaid Junior Subordinated Payments; and (c) third, all accrued and unpaid Preferred Dividends and Incentive Management Fees, pro rata Exhibit A to the aggregate amount thereof then outstandingSubordinated Indebtedness; provided, however, that in Borrower will not be permitted to make and Subordinated Lender shall not accept such payments if, at the event that due to the time of such payment restrictions of this Section 2.2 any Junior Subordinated Paymentsthere exists, Preferred Dividends or Incentive Management Fees have accrued (w) a Senior Payment Default, (x) an Impairment Default and with respect to such Impairment Default, Senior Lender has given Subordinated Lender written notice (an “Impairment Default Notice”) of the existence of an Impairment Default, (y) there exists any prior Fiscal Quarter Event of Default other than a Senior Payment Default or an Impairment Default (collectively, a “Non-Payment Default”) and remain unpaidwith respect to such Event of Default Senior Lender has given to Subordinated Lender written notice (a “Default Notice”) of such Non-Payment Default; or (z) the payment would result in an Event of Default under the Senior Loan Agreement, no Junior Subordinated Paymentsincluding without limitation, Preferred Dividends and Incentive Management Fees a violation of any of the financial covenants contained therein. No payment shall be paid except made or received during the period (the “Payment Blockage Period”) commencing on the date the date such payment is prohibited as provided above and ending on the date on which the Event of Default giving rise to the extent Payment Blockage Period is cured or waived by Senior Lender in writing. Following the expiration of any Cash OveragePayment Blockage Period, or the cure or waiver of any Senior Payment Default or Impairment Default, Borrower may pay and Subordinated Lender may receive any payments which were not made as a result of the foregoing so long as such payment would not result in an Event of Default under the Senior Loan Agreement.

Restrictions on Payments. Notwithstanding any provision of the Subordinated Instruments to the contrary and in addition to any other limitations set forth herein or therein, no payment of principal, interest, dividends, fees or any other amount due with respect to the Subordinated Obligations Indebtedness shall be made, and no Subordinated Holder Lender shall not exercise any right of set-off (other than a set-off by Senior Subordinated Lender of the exercise price of the warrant issued to it by Parent on the Closing Date against the Senior Subordinated Indebtedness provided the amount of such set-off does not exceed $3,500 in the aggregate) or recoupment with respect to any Subordinated ObligationsIndebtedness, until all of the Senior Indebtedness is paid in fullfull in cash; provided, except however, that, subject to the proviso at the end last sentence of this Section 2.2, (i) on April 1, 1996, Borrower may make and the applicable Subordinated Holder may receive and retain all Subordinated Payments accrued through March 31, 1996 and (ii) on the first Business Day after the end of each Fiscal Quarter commencing with the Fiscal Quarter ending June 30, 1996 Borrower may make and the applicable Subordinated Holder may receive and retain accrued and unpaid Subordinated Payments in an aggregate amount not to exceed Available Cash as of the most recent Determination Date in the following order of priority: (a) firstin the event Borrower voluntarily prepays all or any part of the Senior Indebtedness, all accrued concurrently with such prepayment Borrower may pay to Subordinated Lender an amount equal to Subordinated Lender's Pro Rata Share (calculated as of the date immediately preceding the date such prepayment of the Senior Indebtedness is made) of the amount of such prepayment of the Senior Indebtedness, provided no Senior Default exists and unpaid is continuing or would be created by the making of such prepayment to Subordinated Lender, and further provided that such prepayment of the Senior Subordinated PaymentsIndebtedness is in fact voluntary (i.e., not required pursuant to the terms of the Loan Agreement or by Senior Lender in connection with any waiver of or consent to a departure by Borrower from any term or condition of the Loan Agreement); (b) secondat any time during the period after Senior Lender has received the financial statements required under the Loan Agreement for the first Loan Year through the 180th day of the second Loan Year Borrower may make the ▇▇▇▇ Atlantic Seller Note Payment provided that (i) no Senior Default exists and is continuing or would be created by the making of such payment, all (ii) the Senior Leverage Ratio as of the last day of the month most recently ended with respect to which Senior Lender has been in receipt for at least 10 days of the financial statements required under Section 6.3.1 for such month and assuming such payment had been made on such last day is less than 4.0 and (iii) the Total Leverage Ratio as of such last day and assuming such payment had been made on such last day is less than 5.0; (c) after Senior Lender has received the financial statements required under the Loan Agreement for the first Loan Year, Borrower may make regularly scheduled current payments of accrued and unpaid Junior interest on the Subordinated PaymentsIndebtedness at a rate per annum not in excess of the Base Rate plus 1.0%; (d) Borrower may make an annual payment on account of accrued and unpaid interest on and the unpaid principal balance of the Subordinated Indebtedness within 120 days after the end of 1999 and each year thereafter in an amount not in excess of the Net Excess Cash Flow for such year; and (ce) third, all accrued and unpaid Preferred Dividends and Incentive Management Fees, pro rata to the aggregate amount thereof then outstanding; provided, that in the event that due a Subordinated Principal Payment Default exists and is continuing and no Senior Payment Default exists and is continuing, Borrower may make a payment on account of the unpaid principal balance of the Subordinated Indebtedness within 120 days after the end of 1999 in an amount not to exceed the greater of (i) the Pro Rata Share as of December 31, 1999 of the portion of the Required Excess Cash Flow Prepayment payable to the payment restrictions Lenders under the Loan Agreement pursuant to subsection 2.8.2(a) of the Loan Agreement for 1999 and (ii) the Net Excess Cash Flow for 1999. Notwithstanding the foregoing provisions of this Section 2.2 any Junior Subordinated Payments, Preferred Dividends or Incentive Management Fees have accrued with respect to any prior Fiscal Quarter and remain unpaid, no Junior Subordinated Payments, Preferred Dividends and Incentive Management Fees shall be paid except to the extent contrary, Borrower shall not make any payment of the amounts described in clauses (c) or (d) above from and after the date Subordinated Lender receives from Senior Lender a copy of a (i) Senior Payment Default Notice and until the date the Senior Payment Default which is the subject of such Senior Payment Default Notice is cured or waived or (ii) Senior Covenant Default Notice and until the earlier to occur of the date (A) the Senior Covenant Default which is the subject of such Senior Covenant Default Notice is cured or waived and (B) which is 180 days after the date Subordinated Lender receives from Senior Lender such copy of such Senior Covenant Default Notice; provided that payments on the Subordinated Indebtedness shall not be prohibited under this clause (ii) for more than 180 days in any Cash Overageperiod of 360 consecutive days.