Common use of Distributions; Upstream Payments Clause in Contracts

Distributions; Upstream Payments. (a) Declare or make any Distributions, except: (i) Upstream Payments; (ii) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, Borrowers may make distributions to Parent for the sole purpose of allowing Parent to, and Parent shall use the proceeds thereof solely to, pay mandatory payments of principal, interest, fees and other obligations on account of Debt owing by Parent; (iii) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, Borrowers may make distributions to Parent for the sole purpose of allowing Parent to, and Parent shall use the proceeds thereof solely to, pay reasonable administrative and operating expenses, including, cash operating expenses, taxes, and Capital Expenditures arising solely out of the consolidated operations of Parent and its Subsidiaries; and (iv) Borrowers may make a one time distribution to Parent in an aggregate amount not to exceed $5,000,000, so long as (A) no Default or Event of Default has occurred and is continuing or would result therefrom, (B) after the Closing Date but prior to December 31, 2009, Parent has received a tax refund in an amount not less than $9,000,000, and (C) the aggregate Revolver Commitments at the time of such distribution shall be $80,000,000 or more (it being acknowledged by Borrowers that nothing contained in this Section 10.2.4 shall imply any obligation on the part of Lenders to consent to any increase in the aggregate Revolver Commitments); (v) so long as the conditions set forth in Section 5.2(g)(d)(iii) of the Guaranty and Security Agreement have been satisfied, Borrowers may make distributions to Parent for the sole purpose of allowing Parent to, and Parent shall use the proceeds thereof solely to, make voluntary prepayments on the Debt evidenced by the 14.75% Notes (as defined in the Guaranty and Security Agreement); (vi) so long as the conditions set forth in Sections 5.2(g)(e)(iii)(A) or (B), as applicable, of the Guaranty and Security Agreement have been satisfied, Borrowers may make distributions to Parent for the sole purpose of allowing Parent to, and Parent shall use the proceeds thereof solely to, make voluntary prepayments on the Debt evidenced by the 16% Notes (as defined in the Guaranty and Security Agreement); (vii) so long as the conditions set forth in Sections 5.2(g)(fSections 5.2(g)(d)(iv)(A) or (B), as applicable, of the Guaranty and Security Agreement have been satisfied, Borrowers may make distributions to Parent for the sole purpose of allowing Parent to, and Parent shall use the proceeds thereof solely to, make voluntary prepayments on the Debt evidenced by the 2.5% Notes; and (viii(vi) so long as (1) the conditions set forth in Sections 5.2(g)(ge)(ii)(A) or (B), as applicable, of the Guaranty and Security Agreement have been satisfied, and (2) the 2012 Convertible Notes are permitted under Section 5.2(a)(xvi) of the Guaranty and Security Agreement, Borrowers may make distributions to Parent for the sole purpose of allowing Parent to, and Parent shall use the proceeds thereof solely to, make voluntary prepayments on the 2012 Convertible Notes (as defined in the Guaranty and Security Agreement); and (vii) Borrowers may make distributions to Parent for the sole purpose of allowing Parent to, and Parent shall use the proceeds thereof solely to, make Investments permitted under clauses (k) and (l) of the definition of “

Distributions; Upstream Payments. (a) Declare or make any Distributions, except: (i) Upstream Payments; (ii) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, Borrowers may make distributions to Parent for the sole purpose of allowing Parent to, and Parent shall use the proceeds thereof solely to, pay mandatory payments of principal, interest, fees and other obligations on account of Debt owing by Parent; (iii) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, Borrowers may make distributions to Parent for the sole purpose of allowing Parent to, and Parent shall use the proceeds thereof solely to, pay reasonable administrative and operating expenses, including, cash operating expenses, taxes, and Capital Expenditures arising solely out of the consolidated operations of Parent and its Subsidiaries; and (iv) Borrowers may make a one time distribution to Parent in an aggregate amount not to exceed $5,000,000, so long as (A) no Default or Event of Default has occurred and is continuing or would result therefrom, (B) after the Closing Date but prior to December 31, 2009, Parent has received a tax refund in an amount not less than $9,000,000, and (C) the aggregate Revolver Commitments at the time of such distribution shall be $80,000,000 or more (it being acknowledged by Borrowers that nothing contained in this Section 10.2.4 shall imply any obligation on the part of Lenders to consent to any increase in the aggregate Revolver Commitments); (v) so long as the conditions set forth in Section 5.2(g)(d)(iii) of the Guaranty and Security Agreement have been satisfied, Borrowers may make distributions to Parent for the sole purpose of allowing Parent to, and Parent shall use the proceeds thereof solely to, make voluntary prepayments on the Debt evidenced by the 14.75% Notes (as defined in the Guaranty and Security Agreement); (vi) so long as the conditions set forth in Sections 5.2(g)(e)(iii)(A) or (B), as applicable, of the Guaranty and Security Agreement have been satisfied, Borrowers may make distributions to Parent for the sole purpose of allowing Parent to, and Parent shall use the proceeds thereof solely to, make voluntary prepayments on the Debt evidenced by the 16% Notes (as defined in the Guaranty and Security Agreement); (vii) so long as the conditions set forth in Sections 5.2(g)(fSections 5.2(g)(d)(iv)(A) or (B), as applicable, of the Guaranty and Security Agreement have been satisfied, Borrowers may make distributions to Parent for the sole purpose of allowing Parent to, and Parent shall use the proceeds thereof solely to, make voluntary prepayments on the Debt evidenced by the 2.5% Notes; and (viii(vivi) so long as (1) the conditions set forth in Sections 5.2(g)(ge)(ii)(A5.2(g)(e)(ii)(A) or (B), as applicable, of the Guaranty and Security Agreement have been satisfied, and (2) the 2012 Convertible Notes are permitted under Section 5.2(a)(xvi) of the Guaranty and Security Agreement, Borrowers may make distributions to Parent for the sole purpose of allowing Parent to, and Parent shall use the proceeds thereof solely to, make voluntary prepayments on the 2012 Convertible Notes (as defined in the Guaranty and Security Agreement); and (vii) Borrowers may make distributions to Parent for the sole purpose of allowing Parent to, and Parent shall use the proceeds thereof solely to, make Investments permitted under clauses (k) and (l) of the definition of “Restricted Investments” as defined in the Guaranty and Security Agreement so long as either: (A) (1) both immediately before and immediately after giving effect to such distribution, no Event of Default exists and Excess Availability is greater than an amount equal to 17.5% of the aggregate Revolver Commitments, and (2) on a pro forma basis the Fixed Charge Coverage Ratio, measured on a trailing twelve (12) month basis after giving effect to such distribution and recomputed for the most recent month for which financial statements have been delivered to Agent, is greater than 1.0 to 1.0; or (B) both immediately before and immediately after giving effect to such distribution, no Event of Default exists and Excess Availability is greater than an amount equal to 25% of the aggregate Revolver Commitments; or

Distributions; Upstream Payments. (a) Declare or make any Distributions, except: (i) Upstream Payments; (ii) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, Borrowers may make distributions to Parent for the sole purpose of allowing Parent to, and Parent shall use the proceeds thereof solely to, pay mandatory payments and mandatory prepayments of principal, interest, fees and other obligations on account of Debt owing by Parent; (iii) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, Borrowers may make distributions to Parent for the sole purpose of allowing Parent to, and Parent shall use the proceeds thereof solely to, pay reasonable administrative and operating expenses, including, cash operating expenses, taxes, and Capital Expenditures arising solely out of the consolidated operations of Parent and its Subsidiaries; and (iv) Borrowers may make a one time distribution to Parent in an aggregate amount not to exceed $5,000,000, so long as (A) no Default or Event of Default has occurred and is continuing or would result therefrom, (B) after the Closing Date but prior to December 31, 2009, Parent has received a tax refund in an amount not less than $9,000,000, and (C) the aggregate Revolver Commitments at the time of such distribution shall be $80,000,000 or more (it being acknowledged by Borrowers that nothing contained in this Section 10.2.4 shall imply any obligation on the part of Lenders to consent to any increase in the aggregate Revolver Commitments)[reserved]; (v) so long as the conditions set forth in Section 5.2(g)(d)(iii) of the Guaranty and Security Agreement have been satisfied, Borrowers may make distributions to Parent for the sole purpose of allowing Parent to, and Parent shall use the proceeds thereof solely to, make voluntary prepayments on the Debt evidenced by the 14.75% Notes (as defined in the Guaranty and Security Agreement); (vi) so long as the conditions set forth in Sections 5.2(g)(e)(iii)(A) or (B), as applicable, of the Guaranty and Security Agreement have been satisfied, Borrowers may make distributions to Parent for the sole purpose of allowing Parent to, and Parent shall use the proceeds thereof solely to, make voluntary prepayments on the Debt evidenced by the 16% Notes (as defined in the Guaranty and Security Agreement); (vii) so long as the conditions set forth in Sections 5.2(g)(fSections 5.2(g)(d)(iv)(A) or (B), as applicable, of the Guaranty and Security Agreement have been satisfied, Borrowers may make distributions to Parent for the sole purpose of allowing Parent to, and Parent shall use the proceeds thereof solely to, make voluntary prepayments on the Debt evidenced by the 2.5% Notes; and (viii(vi) so long as (1) the conditions set forth in Sections 5.2(g)(ge)(ii)(A) or (B), as applicable, of the Guaranty and Security Agreement have been satisfied, and (2) the 2012 Convertible Notes are permitted under Section 5.2(a)(xvi) of the Guaranty and Security Agreement, Borrowers may make distributions to Parent for the sole purpose of allowing Parent to, and Parent shall use the proceeds thereof solely to, make voluntary prepayments on the 2012 Convertible Notes (as defined in the Guaranty and Security Agreement); and (vii) Borrowers may make distributions to Parent for the sole purpose of allowing Parent to, and Parent shall use the proceeds thereof solely to, make Investments permitted under clauses (k), (l) and (lm) of the definition of “Restricted Investments” as defined in the Guaranty and Security Agreement so long as the Prepayment Conditions are satisfied; (vi) so long as the conditions to voluntary prepayment by Parent set forth in the applicable clauses of Section 5.2(g) of the Guaranty and Security Agreement and by the Borrowers set forth in the applicable clauses of Section 10.2.8 have been satisfied, distributions to Parent for the sole purpose of allowing Parent to, and Parent shall use the proceeds thereof solely to prepay, as applicable, the 2013 Senior Notes Debt, the Term Loan B Debt, and the Convertible Notes Debt; (vii) so long as the conditions with respect to Parent set forth in Section 5.2(g)(g)(ii) of the Guaranty and Security Agreement have been satisfied and with respect to the Borrowers set forth in Section 10.2.8(f)(ii) have been satisfied, Borrowers may make distributions to Parent for the sole purpose of allowing Parent to, and Parent shall use the proceeds thereof solely to, pay any amounts due and payable upon early termination of the Term Loan B Hedge or any portion thereof and (viii) so long as the conditions with respect to Parent set forth in Section 5.2(g)(c)(ii)(A) of the Guaranty and Security Agreement have been satisfied and with respect to the Borrowers set forth in Section 10.2.8(c)(ii)(A) hereof have been satisfied, Borrowers may make distributions to Parent for the sole purpose of allowing Parent to, and Parent shall use the proceeds thereof solely to, make cash payments in lieu of issuing fractional shares, cash settlement payments and net cash settlement payments, in each case, in connection with the settlement of the Convertible Notes, provided that the aggregate amount of cash payments made in lieu of issuing fractional shares with respect to the Convertible Notes shall not exceed five million dollars ($5,000,000) in the aggregate; or

Distributions; Upstream Payments. (a) Declare or make any Distributions, except: except (a) Upstream Payments, (b) of the Rights, (c) by Parent to redeem all issued and outstanding Rights for an aggregate consideration not to exceed $500,000 during the term of this Agreement, and (d) consisting of the issuance of common or preferred stock of Parent in accordance with the Shareholders Rights Plan (as opposed to the making or payment of any Distribution on or with respect to such stock issued or to be issued); or create or suffer to exist any encumbrance or restriction on the ability of a Subsidiary to make any Upstream Payment, except for restrictions under the Loan Documents, under Applicable Law or under Restrictive Agreements permitted by Section 10.2.14. Notwithstanding the foregoing, Parent may declare and pay cash dividends on its Equity Interests, and may repurchase any of its Equity Interests, if (but only if), immediately prior thereto and immediately after giving effect thereto, (i) Upstream Payments; no Default or Event of Default exists or would result therefrom, and (ii) Availability after giving effect thereto would exceed $30,000,000; provided, however, Parent may declare and pay cash dividends on its Equity Interests in an aggregate amount not to exceed $2,000,000 during any Fiscal Year if (but only if), immediately prior thereto and immediately after giving effect thereto, no Default or Event of Default exists or would result therefrom. Notwithstanding the foregoing, the preceding provisions of this Section shall not prohibit (A) the payment of any dividend by Parent within 60 days after the date of the declaration of such dividend if, at such date of declaration, the dividend so declared would have complied with the requirements of this Agreement if paid on the date of declaration thereof, or (B) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, Borrowers may make distributions to Parent for the sole purpose of allowing Parent to, and Parent shall use the proceeds thereof solely to, pay mandatory payments of principal, interest, fees and other obligations on account of Debt owing by Parent; (iii) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, Borrowers may make distributions to Parent for the sole purpose of allowing Parent to, and Parent shall use the proceeds thereof solely to, pay reasonable administrative and operating expenses, including, cash operating expenses, taxes, and Capital Expenditures arising solely out of the consolidated operations of Parent and its Subsidiaries; and (iv) Borrowers may make a one time distribution to Parent in an aggregate amount not to exceed $5,000,000, so long as (A) no Default or Event of Default has occurred and is continuing or would result therefrom, (B) after the Closing Date but prior to December 31, 2009, Parent has received a tax refund in an amount not less than $9,000,000, and (C) the aggregate Revolver Commitments at the time of such distribution shall be $80,000,000 or more (it being acknowledged by Borrowers that nothing contained in this Section 10.2.4 shall imply any obligation on the part of Lenders to consent to any increase in the aggregate Revolver Commitments); (v) so long as the conditions set forth in Section 5.2(g)(d)(iii) of the Guaranty and Security Agreement have been satisfied, Borrowers may make distributions to Parent for the sole purpose of allowing Parent to, and Parent shall use the proceeds thereof solely to, make voluntary prepayments on the Debt evidenced by the 14.75% Notes (as defined in the Guaranty and Security Agreement); (vi) so long as the conditions set forth in Sections 5.2(g)(e)(iii)(A) or (B), as applicable, of the Guaranty and Security Agreement have been satisfied, Borrowers may make distributions to Parent for the sole purpose of allowing Parent to, and Parent shall use the proceeds thereof solely to, make voluntary prepayments on the Debt evidenced by the 16% Notes (as defined in the Guaranty and Security Agreement); (vii) so long as the conditions set forth in Sections 5.2(g)(fSections 5.2(g)(d)(iv)(A) or (B), as applicable, of the Guaranty and Security Agreement have been satisfied, Borrowers may make distributions to Parent for the sole purpose of allowing Parent to, and Parent shall use the proceeds thereof solely to, make voluntary prepayments on the Debt evidenced by the 2.5% Notes; and (viii(vi) so long as (1) the conditions set forth in Sections 5.2(g)(ge)(ii)(A) repurchase, redemption or other acquisition or retirement for value of any Equity Interests of any Obligor held by any current or former officer, director or employee of any Obligor pursuant to any restricted stock agreements, restricted stock unit agreements, equity subscription agreement, stock option agreement, shareholders’ agreement or similar plan or agreement, or (B), as applicable, 2) the repurchase of Equity Interests deemed to occur upon the exercise of stock options to the extent such Equity Interests represent a portion of the Guaranty and Security Agreement have been satisfied, exercise price of those stock options; provided that the aggregate amount paid under the foregoing clauses (1) and (2) the 2012 Convertible Notes are permitted under Section 5.2(a)(xvi) of the Guaranty and Security Agreement, Borrowers may make distributions to Parent for the sole purpose of allowing Parent to, and Parent shall use the proceeds thereof solely to, make voluntary prepayments on the 2012 Convertible Notes (as defined in the Guaranty and Security Agreement); and (vii) Borrowers may make distributions to Parent for the sole purpose of allowing Parent to, and Parent shall use the proceeds thereof solely to, make Investments permitted under clauses (k) and (l) of the definition of “not exceed $3,000,000 during any twelve-month period.

Distributions; Upstream Payments. (a) Declare or make any Distributions, except: except (i) Upstream Payments; , (ii) Distributions made in connection with the consummation of the Transactions, (iii) Distributions made in connection with and pursuant to stock option plans or other benefit plans of management or employees of the Loan Parties or any of their Subsidiaries including (A) compensation to (or as directed by) any director (or equivalent) and (B) purchases of stock or stock options of management or employees, in each case as have been approved by the applicable board of directors (or equivalent), (iv) Distributions by a Borrower to Holdings or a Subsidiary of a Borrower to its Loan Party parent and, ultimately, to Holdings to the extent promptly used by Holdings to pay any taxes that are due and payable by Holdings as part of a consolidated, combined, unitary or similar group that includes the Loan Parties or any of their Subsidiaries, (v) with respect to the New Preferred Stock, the following shall be permitted: (A) any accompanying administrative cash payments made in respect of fractional shares when dividend payments are made as ‘payment-in-kind’, (B) any in-kind (non-cash) redemptions of New Preferred Stock as required when dividend payments are made as ‘payment-in-kind’ (accompanied by the administrative replacement of such New Preferred Stock) and (C) cash Distributions in an amount not to exceed $10,000,000 in any Fiscal Year, so long as the Specified Transaction Conditions applicable to such cash Distribution shall have been satisfied in connection therewith, (vi) other payments not exceeding $10,000,000 in the aggregate during any fiscal year (which amounts, if not used, may be carried forward for one (1) fiscal year) and (vii) following any initial underwritten public offering of common Equity Interests of Holdings (whether pursuant to an effective registration statement filed with the Securities and Exchange Commission or otherwise), provided no Default or Event of Default has shall have occurred and is continuing continuing, or would result therefromthereform, Holdings may declare and pay cash dividends pursuant to any cash dividend plan announced by the Board of Directors of Holdings from time to time. For purposes of determining compliance with this Section 10.2.3, in the event that a proposed Distribution meets the criteria of more than one of the categories of Distributions described in clauses (i) through (vii), Borrowers may make distributions will be permitted to Parent for classify such proposed Distribution on the sole purpose date of allowing Parent to, and Parent shall use the proceeds thereof solely to, pay mandatory payments of principal, interest, fees and other obligations on account of Debt owing by Parent; (iii) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, Borrowers may make distributions to Parent for the sole purpose of allowing Parent to, and Parent shall use the proceeds thereof solely to, pay reasonable administrative and operating expenses, including, cash operating expenses, taxes, and Capital Expenditures arising solely out of the consolidated operations of Parent and its Subsidiaries; and (iv) Borrowers may make a one time distribution to Parent issuance in an aggregate amount not to exceed $5,000,000, so long as (A) no Default or Event of Default has occurred and is continuing or would result therefrom, (B) after the Closing Date but prior to December 31, 2009, Parent has received a tax refund in an amount not less than $9,000,000, and (C) the aggregate Revolver Commitments at the time of such distribution shall be $80,000,000 or more (it being acknowledged by Borrowers any manner that nothing contained in complies with this Section 10.2.4 shall imply any obligation on the part of Lenders to consent to any increase in the aggregate Revolver Commitments); (v) so long as the conditions set forth in Section 5.2(g)(d)(iii) of the Guaranty and Security Agreement have been satisfied, Borrowers may make distributions to Parent for the sole purpose of allowing Parent to, and Parent shall use the proceeds thereof solely to, make voluntary prepayments on the Debt evidenced by the 14.75% Notes (as defined in the Guaranty and Security Agreement); (vi) so long as the conditions set forth in Sections 5.2(g)(e)(iii)(A) or (B), as applicable, of the Guaranty and Security Agreement have been satisfied, Borrowers may make distributions to Parent for the sole purpose of allowing Parent to, and Parent shall use the proceeds thereof solely to, make voluntary prepayments on the Debt evidenced by the 16% Notes (as defined in the Guaranty and Security Agreement); (vii) so long as the conditions set forth in Sections 5.2(g)(fSections 5.2(g)(d)(iv)(A) or (B), as applicable, of the Guaranty and Security Agreement have been satisfied, Borrowers may make distributions to Parent for the sole purpose of allowing Parent to, and Parent shall use the proceeds thereof solely to, make voluntary prepayments on the Debt evidenced by the 2.5% Notes; and (viii(vi) so long as (1) the conditions set forth in Sections 5.2(g)(ge)(ii)(A) or (B), as applicable, of the Guaranty and Security Agreement have been satisfied, and (2) the 2012 Convertible Notes are permitted under Section 5.2(a)(xvi) of the Guaranty and Security Agreement, Borrowers may make distributions to Parent for the sole purpose of allowing Parent to, and Parent shall use the proceeds thereof solely to, make voluntary prepayments on the 2012 Convertible Notes (as defined in the Guaranty and Security Agreement); and (vii) Borrowers may make distributions to Parent for the sole purpose of allowing Parent to, and Parent shall use the proceeds thereof solely to, make Investments permitted under clauses (k) and (l) of the definition of “10.2.3.