Common use of Distributions; Upstream Payments Clause in Contracts

Distributions; Upstream Payments. 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 in effect on the Restatement Effective Date as shown on Schedule 9.1.15. Declare or make any Distributions except: (a) Upstream Payments; (b) Each Obligor may declare and make Distributions with respect to its Equity Interests payable solely in additional shares of its Equity Interests; (c) Any Obligor may pay cash dividends to any Obligor that is its direct parent; (d) Any Obligor (other than Parent) may make distributions to permit Parent to repurchase Equity Interests issued to employees, directors and officers of the Obligors and their Subsidiaries (including repurchases of Equity Interests from severed or terminated employees, directors and officers), and Parent may repurchase such Equity Interests, in each case in an aggregate amount not to exceed $1,000,000 in any calendar year and $3,000,000 after March 31, 2014, so long as (a) immediately prior to and after giving effect to such payment, no Default or Event of Default has occurred or will occur, (b) for each of the 30 days immediately prior to and immediately after giving effect to such payment, ABL Availability is in an amount greater than 15% of the ABL Revolver Commitments (disregarding any decreased ABL Revolver Commitment amount during the Seasonal Period), and ABL US Availability is in an amount greater than 15% of the ABL US Revolver Commitments (disregarding any decreased ABL US Revolver Commitment amount during the Seasonal Period) and (c) the Agent shall have received satisfactory evidence that the Borrowers are in compliance with each of the financial covenants set forth in Section 10.3 on a pro forma basis after giving effect to the repurchase (as if such repurchase was consummated on the first day of the period of measurement) as determined for last day of month most recently ended prior to such repurchase (for the trailing twelve month period then-ended), all based on calculations and assumptions acceptable to the Agent; (e) The Permitted Earnout Payment; (f) Payments of, Distributions on or redemptions of the Series B Preferred Stock of VTB, so long as (a) immediately prior to and after giving effect to such payment, no Default or Event of Default has occurred or will occur, (b) for each of the 60 days immediately prior to and after giving effect to such payment, ABL Availability is in an amount greater than 20% of the ABL Revolver Commitments (disregarding any decreased ABL Revolver Commitment amount during the Seasonal Period), and ABL US Availability is in an amount greater than 20% of the ABL US Revolver Commitments (disregarding any decreased ABL US Revolver Commitment amount during the Seasonal Period), (c) immediately after giving effect to such payment, the Fixed Charge Coverage Ratio is no less than 1.15 to 1.00 (measured on a trailing 12-month basis); and (d) the Agent shall have received satisfactory evidence that the Borrowers are in compliance with each of the financial covenants set forth in Section 10.3 on a pro forma basis after giving effect to such payment, Distribution or redemption (as if such payment, Distribution or redemption was consummated on the first day of the period of measurement) as determined for last day of month most recently ended prior to such payment, Distribution or redemption (for the trailing twelve month period then-ended), all based on calculations and assumptions acceptable to the Agent; and (g) Payments to Sponsor as reimbursements for reasonable out-of-pocket fees and costs incurred by it on behalf of the Borrowers (including, without limitation, the reasonable out-of-pocket costs of attorneys, consultants and accountants), so long as (a) immediately prior to and after giving effect to such payment, no Default or Event of Default has occurred or will occur, (b) for each of the 30 days immediately prior to and after giving effect to such payment, ABL Availability is in an amount greater than 15% of the ABL Revolver Commitments (disregarding any decreased ABL Revolver Commitment amount during the Seasonal Period), and ABL US Availability is in an amount greater than 15% of the ABL US Revolver Commitments (disregarding any decreased ABL US Revolver Commitment amount during the Seasonal Period) and (c) the Agent shall have received satisfactory evidence that the Borrowers are in compliance with each of the financial covenants set forth in Section 10.3 on a pro forma basis after giving effect to such payment (as if such payment was consummated on the first day of the period of measurement) as determined for last day of month most recently ended prior to such payment (for the trailing twelve month period then-ended), all based on calculations and assumptions acceptable to the Agent.

Distributions; Upstream Payments. 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 in effect on the Restatement Effective Closing Date as shown on Schedule 9.1.15. Declare or make any Distributions except: (a) Upstream Payments; (b) Each Obligor may declare and make Distributions with respect to its Equity Interests payable solely in additional shares of its Equity Interests; (c) Any Obligor may pay cash dividends to any Obligor that is its direct parent; (d) Any Obligor (other than Parent) may make distributions to permit Parent to repurchase Equity Interests issued to employees, directors and officers of the Obligors and their Subsidiaries (including repurchases of Equity Interests from severed or terminated employees, directors and officers), and Parent may repurchase such Equity Interests, in each case in an aggregate amount not to exceed $1,000,000 in any calendar year and $3,000,000 after March 31, 2014, so long as (a) immediately prior to and after giving effect to such payment, no Default or Event of Default has occurred or will occur, (b) for each of the 30 days immediately prior to and immediately after giving effect to such payment, ABL Availability is in an amount greater than 15% of the ABL Revolver Commitments (disregarding any decreased ABL Revolver Commitment amount during the Seasonal Period)Commitments, and ABL US Availability is in an amount greater than 15% of the ABL US Revolver Commitments (disregarding any decreased ABL US Revolver Commitment amount during the Seasonal Period) and (c) the Agent shall have received satisfactory evidence that the Borrowers are in compliance with each of the financial covenants set forth in Section 10.3 on a pro forma basis after giving effect to the repurchase (as if such repurchase was consummated on the first day of the period of measurement) as determined for last day of month most recently ended prior to such repurchase (for the trailing twelve month period then-ended), all based on calculations and assumptions acceptable to the Agent; (e) The Permitted Earnout Payment[Intentionally Omitted]; (f) Payments of, Distributions on or redemptions of the Series B Preferred Stock of VTB, so long as (a) immediately prior to and after giving effect to such payment, no Default or Event of Default has occurred or will occur, (b) for each of the 60 days immediately prior to and after giving effect to such payment, ABL Availability is in an amount greater than 20% of the ABL Revolver Commitments (disregarding any decreased ABL Revolver Commitment amount during the Seasonal Period)Commitments, and ABL US Availability is in an amount greater than 20% of the ABL US Revolver Commitments (disregarding any decreased ABL US Revolver Commitment amount during the Seasonal Period)Commitments, (c) immediately after giving effect to such payment, the Fixed Charge Coverage Ratio is no less than 1.15 to 1.00 (measured on a trailing 12-month basis); and (d) the Agent shall have received satisfactory evidence that the Borrowers are in compliance with each of the financial covenants set forth in Section 10.3 on a pro forma basis after giving effect to such payment, Distribution or redemption (as if such payment, Distribution or redemption was consummated on the first day of the period of measurement) as determined for last day of month most recently ended prior to such payment, Distribution or redemption (for the trailing twelve month period then-ended), all based on calculations and assumptions acceptable to the Agent; and (g) Payments to Sponsor as reimbursements for reasonable out-of-pocket fees and costs incurred by it on behalf of the Borrowers (including, without limitation, the reasonable out-of-pocket costs of attorneys, consultants and accountants), so long as (a) immediately prior to and after giving effect to such payment, no Default or Event of Default has occurred or will occur, (b) for each of the 30 days immediately prior to and after giving effect to such payment, ABL Availability is in an amount greater than 15% of the ABL Revolver Commitments (disregarding any decreased ABL Revolver Commitment amount during the Seasonal Period)Commitments, and ABL US Availability is in an amount greater than 15% of the ABL US Revolver Commitments (disregarding any decreased ABL US Revolver Commitment amount during the Seasonal Period) and (c) the Agent shall have received satisfactory evidence that the Borrowers are in compliance with each of the financial covenants set forth in Section 10.3 on a pro forma basis after giving effect to such payment (as if such payment was consummated on the first day of the period of measurement) as determined for last day of month most recently ended prior to such payment (for the trailing twelve month period then-ended), all based on calculations and assumptions acceptable to the Agent.

Distributions; Upstream Payments. 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 in effect on the Restatement Effective Closing Date as shown on Schedule 9.1.15. Declare or make any Distributions except: (aq) Upstream Payments; (br) Each Obligor may declare and make Distributions with respect to its Equity Interests payable solely in additional shares of its Equity Interests; (cs) Any Obligor may pay cash dividends to any Obligor that is its direct parent; (dt) Any Obligor (other than ParentParametric) may make distributions to permit Parent Parametric to repurchase Equity Interests issued to employees, directors and officers of the Obligors and their Subsidiaries (including repurchases of Equity Interests from severed or terminated employees, directors and officers), and Parent Parametric may repurchase such Equity Interests, in each case in an aggregate amount not to exceed $1,000,000 in any calendar year and $3,000,000 after March 31, 2014the Closing Date, so long as (a) immediately prior to and after giving effect to such payment, no Default or Event of Default has occurred or will occur, (b) for each of the 30 days immediately prior to and immediately after giving effect to such payment, ABL Availability is in an amount greater than 15% of the ABL Revolver Commitments (disregarding any decreased ABL Revolver Commitment amount during the Seasonal Period)Commitments, and ABL US Availability is in an amount greater than 15% of the ABL US Revolver Commitments (disregarding any decreased ABL US Revolver Commitment amount during the Seasonal Period) Commitments, and (c) the Agent shall have received satisfactory evidence that the Borrowers are no FILO Period is in compliance with each of the financial covenants set forth in Section 10.3 on a pro forma basis after giving effect to the repurchase (as if such repurchase was consummated on the first day of the period of measurement) as determined for last day of month most recently ended prior to such repurchase (for the trailing twelve month period then-ended), all based on calculations and assumptions acceptable to the Agenteffect; (eu) The Permitted Earnout Payment; (fv) Payments of, of Distributions on or redemptions of the Series B Preferred Stock of VTBVoyetra, so long as (a) immediately prior to and after giving effect to such payment, no Default or Event of Default has occurred or will occur, (b) for each of the 60 30 days immediately prior to and after giving effect to such payment, ABL Availability is in an amount greater than 2015% of the ABL Revolver Commitments (disregarding any decreased ABL Revolver Commitment amount during the Seasonal Period)Commitments, and ABL US Availability is in an amount greater than 2015% of the ABL US Revolver Commitments (disregarding any decreased ABL US Revolver Commitment amount during the Seasonal Periodin each case under this clause (b), such percentages shall be 12.5% with respect to the payment of a Distribution on to be paid on or around September 30, 2014 which payment shall not exceed the aggregate amount of $300,000) , and (c) immediately after giving effect to such payment, the Fixed Charge Coverage Ratio no FILO Period is no less than 1.15 to 1.00 (measured on a trailing 12-month basis); and (d) the Agent shall have received satisfactory evidence that the Borrowers are in compliance with each of the financial covenants set forth in Section 10.3 on a pro forma basis after giving effect to such payment, Distribution or redemption (as if such payment, Distribution or redemption was consummated on the first day of the period of measurement) as determined for last day of month most recently ended prior to such payment, Distribution or redemption (for the trailing twelve month period then-ended), all based on calculations and assumptions acceptable to the Agenteffect; and (gw) Payments to Sponsor as reimbursements for reasonable out-of-pocket fees and costs incurred by it on behalf of the Borrowers (including, without limitation, the reasonable out-of-pocket costs of attorneys, consultants and accountants), so long as (a) immediately prior to and after giving effect to such payment, no Default or Event of Default has occurred or will occur, (b) for each of the 30 days immediately prior to and after giving effect to such payment, ABL Availability is in an amount greater than 15% of the ABL Revolver Commitments (disregarding any decreased ABL Revolver Commitment amount during the Seasonal Period)Commitments, and ABL US Availability is in an amount greater than 15% of the ABL US Revolver Commitments (disregarding any decreased ABL US Revolver Commitment amount during the Seasonal Period) Commitments, and (c) the Agent shall have received satisfactory evidence that the Borrowers are no FILO Period is in compliance with each of the financial covenants set forth in Section 10.3 on a pro forma basis after giving effect to such payment (as if such payment was consummated on the first day of the period of measurement) as determined for last day of month most recently ended prior to such payment (for the trailing twelve month period then-ended), all based on calculations and assumptions acceptable to the Agenteffect.

Distributions; Upstream Payments. (a) Declare or make any Distributions, except: (i) Upstream Payments; (ii) no more frequently than once during the term of this Agreement, a purchase, redemption, or other acquisition or retirement for value of any Equity Interest of Company not to exceed $25,000,000 so long as (A) as soon as available, but not less than fifteen (15) Business Days prior to such Distribution, Company shall submit to Agent notice of its intent to make such Distribution, (B) Company shall deliver pro forma financial statements which demonstrate, on a pro forma basis (1) the average daily amount of Availability for the 30 day period immediately preceding such Distribution and (2) Availability on the date of such Distribution shall, in each case after giving effect to such Distribution, be at least $40,000,000, (C) Company shall deliver a certificate of the chief financial officer of Company certifying that such pro forma financial statements present fairly in all material respects the financial condition of Company and its Subsidiaries on a consolidated basis as of the date thereof after giving effect to such Distribution and setting forth reasonably detailed calculations demonstrating compliance with the minimum Availability calculation set forth in clause (B) above and (C) before and after giving effect to such distribution, no Default or Event of Default shall have occurred and be continuing; and (iii) no more frequently than every Fiscal Quarter, ordinary dividends so long as (A) Company shall deliver pro forma financial statements which demonstrate, on a pro forma basis (1) the average daily amount of Availability for the 30 day period immediately preceding such Distribution and (2) Availability on the date of such Distribution shall, in each case after giving effect to such Distribution, be at least $15,000,000, (B) the pro forma Fixed Charge Coverage Ratio for the most recent consecutive four Fiscal Quarters ended immediately prior to such Distribution shall, after giving effect to such Distribution, be at least 1.15 to 1.00, (C) Company shall deliver a certificate of the chief financial officer of Company certifying that such pro forma financial statements present fairly in all material respects the financial condition of Company and its Subsidiaries on a consolidated basis as of the date thereof after giving effect to such Distribution and setting forth reasonably detailed calculations demonstrating compliance with the minimum Availability and Fixed Charge Coverage Ratio calculations set forth in clauses (A) and (B) above, (D) the aggregate amount of dividends paid per Fiscal Year shall not exceed $5,000,000 and (E) before and after giving effect to such distribution, no Default or Event of Default shall have occurred and be continuing; or (b) 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 in effect on the Restatement Effective Closing Date as shown on Schedule 9.1.15. Declare or make any Distributions except: (a) Upstream Payments; (b) Each Obligor may declare and make Distributions with respect to its Equity Interests payable solely in additional shares of its Equity Interests; (c) Any Obligor may pay cash dividends to any Obligor that is its direct parent; (d) Any Obligor (other than Parent) may make distributions to permit Parent to repurchase Equity Interests issued to employees, directors and officers of the Obligors and their Subsidiaries (including repurchases of Equity Interests from severed or terminated employees, directors and officers), and Parent may repurchase such Equity Interests, in each case in an aggregate amount not to exceed $1,000,000 in any calendar year and $3,000,000 after March 31, 2014, so long as (a) immediately prior to and after giving effect to such payment, no Default or Event of Default has occurred or will occur, (b) for each of the 30 days immediately prior to and immediately after giving effect to such payment, ABL Availability is in an amount greater than 15% of the ABL Revolver Commitments (disregarding any decreased ABL Revolver Commitment amount during the Seasonal Period), and ABL US Availability is in an amount greater than 15% of the ABL US Revolver Commitments (disregarding any decreased ABL US Revolver Commitment amount during the Seasonal Period) and (c) the Agent shall have received satisfactory evidence that the Borrowers are in compliance with each of the financial covenants set forth in Section 10.3 on a pro forma basis after giving effect to the repurchase (as if such repurchase was consummated on the first day of the period of measurement) as determined for last day of month most recently ended prior to such repurchase (for the trailing twelve month period then-ended), all based on calculations and assumptions acceptable to the Agent; (e) The Permitted Earnout Payment; (f) Payments of, Distributions on or redemptions of the Series B Preferred Stock of VTB, so long as (a) immediately prior to and after giving effect to such payment, no Default or Event of Default has occurred or will occur, (b) for each of the 60 days immediately prior to and after giving effect to such payment, ABL Availability is in an amount greater than 20% of the ABL Revolver Commitments (disregarding any decreased ABL Revolver Commitment amount during the Seasonal Period), and ABL US Availability is in an amount greater than 20% of the ABL US Revolver Commitments (disregarding any decreased ABL US Revolver Commitment amount during the Seasonal Period), (c) immediately after giving effect to such payment, the Fixed Charge Coverage Ratio is no less than 1.15 to 1.00 (measured on a trailing 12-month basis); and (d) the Agent shall have received satisfactory evidence that the Borrowers are in compliance with each of the financial covenants set forth in Section 10.3 on a pro forma basis after giving effect to such payment, Distribution or redemption (as if such payment, Distribution or redemption was consummated on the first day of the period of measurement) as determined for last day of month most recently ended prior to such payment, Distribution or redemption (for the trailing twelve month period then-ended), all based on calculations and assumptions acceptable to the Agent; and (g) Payments to Sponsor as reimbursements for reasonable out-of-pocket fees and costs incurred by it on behalf of the Borrowers (including, without limitation, the reasonable out-of-pocket costs of attorneys, consultants and accountants), so long as (a) immediately prior to and after giving effect to such payment, no Default or Event of Default has occurred or will occur, (b) for each of the 30 days immediately prior to and after giving effect to such payment, ABL Availability is in an amount greater than 15% of the ABL Revolver Commitments (disregarding any decreased ABL Revolver Commitment amount during the Seasonal Period), and ABL US Availability is in an amount greater than 15% of the ABL US Revolver Commitments (disregarding any decreased ABL US Revolver Commitment amount during the Seasonal Period) and (c) the Agent shall have received satisfactory evidence that the Borrowers are in compliance with each of the financial covenants set forth in Section 10.3 on a pro forma basis after giving effect to such payment (as if such payment was consummated on the first day of the period of measurement) as determined for last day of month most recently ended prior to such payment (for the trailing twelve month period then-ended), all based on calculations and assumptions acceptable to the Agent.

Distributions; Upstream Payments. 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 in effect on the Restatement RestatementSecond Amendment Effective Date as shown on Schedule 9.1.15. Declare or make any Distributions except: (a) Upstream Payments; (b) Each Obligor may declare and make Distributions with respect to its Equity Interests payable solely in additional shares of its Equity Interests; (c) Any Obligor may pay cash dividends to any Obligor that is its direct parent; (d) Any Without duplication of any repurchase, redemption or other acquisition or retirement made as an Investment which is permitted under clause (f) of the definition of Restricted Investments, any Obligor (other than Parent) may make distributions to permit Parent to repurchase Equity Interests issued to employees, directors and officers of the Obligors and their Subsidiaries (including repurchases of Equity Interests from severed or terminated employees, directors and officers)officers)of Parent, and Parent may repurchase such Equity Interests, in each case in an aggregate amount not to exceed $1,000,000 5,000,000 in any calendar year and $3,000,000 10,000,000 in the aggregate, so long as no Event of Default exists immediately before and after March 31giving effect thereto and the Agent shall have received satisfactory evidence that the Borrowers are in compliance with each of the financial covenants set forth in Section 10.3 on a pro forma basis after giving effect thereto (as if such actions were consummated on the first day of the period of measurement) as determined for last day of month most recently ended prior thereto (for the trailing twelve month period then-ended), 2014all based on calculations and assumptions acceptable to the Agent, and in such amounts in excess of the foregoing limitations so long as (a) so long as no Event of Default exists immediately prior to before and after giving effect thereto and the Agent shall have received satisfactory evidence that the Borrowers are in compliance with each of the financial covenants set forth in Section 10.3 on a pro forma basis after giving effect thereto (as if such actions were consummated on the first day of the period of measurement) as determined for last day of month most recently ended prior thereto (for the trailing twelve month period then-ended), all based on calculations and assumptions acceptable to such payment, no Default or Event of Default has occurred or will occurthe Agent, (b) for each of the 30 days immediately prior to and immediately after giving effect to such payment, ABL Availability is in an amount greater than 15% of the ABL Revolver Commitments (disregarding any decreased ABL Revolver Commitment amount during the Seasonal Period), and ABL US Availability is in an amount greater than 15% of the ABL US Revolver Commitments (disregarding any decreased ABL US Revolver Commitment amount during the Seasonal Period) and (c) the Agent shall have received satisfactory evidence that the Borrowers are in compliance with each of the financial covenants set forth in Section 10.3 on a pro forma basis after giving effect to the repurchase (as if such repurchase was consummated on the first day of the period of measurement) as determined for last day of month most recently ended prior to such repurchase (for the trailing twelve month period then-ended), all based on calculations and assumptions acceptable to the Agent; (e) The Permitted Earnout Payment; (f[Reserved];(f) Payments of, Distributions on or redemptions of the Series B Preferred Stock of VTB, so long as (a) immediately prior to and after giving effect to such payment, no Default or Event of Default has occurred or will occur, (b) for each of the 60 days immediately prior to and immediately after giving effect to such payment, ABL Availability is in an amount greater than 202015% of the ABL Revolver Commitments (disregarding any decreased ABL Revolver Commitment amount during the Seasonal Period), and ABL US Availability is in an amount greater than 20% of the ABL US Revolver Commitments (disregarding any decreased ABL US Revolver Commitment amount during the Seasonal Period), (c) immediately after giving effect to such payment, the Fixed Charge Coverage Ratio is no less than 1.15 to 1.00 (measured on a trailing 12-month basis); , and (d) the Agent shall have received satisfactory evidence that the Borrowers are in compliance with each of the financial covenants set forth in Section 10.3 on a pro forma basis after giving effect to such payment, Distribution or redemption redemptionthe repurchase (as if such payment, Distribution or redemption repurchase was consummated on the first day of the period of measurement) as determined for last day of month most recently ended prior to such payment, Distribution or redemption redemptionrepurchase (for the trailing twelve month period then-ended), all based on calculations and assumptions acceptable to the Agent; and (g) Payments to Sponsor as reimbursements for reasonable out-of-pocket fees and costs incurred by it on behalf of the Borrowers (including, without limitation, the reasonable out-of-pocket costs of attorneys, consultants and accountants), so long as (a) immediately prior to and after giving effect to such payment, no Default or Event of Default has occurred or will occur, (b) for each of the 30 days immediately prior to and after giving effect to such payment, ABL Availability is in an amount greater than 15% of the ABL Revolver Commitments (disregarding any decreased ABL Revolver Commitment amount during the Seasonal Period), and ABL US Availability is in an amount greater than 15% of the ABL US Revolver Commitments (disregarding any decreased ABL US Revolver Commitment amount during the Seasonal Period) and (c) the Agent shall have received satisfactory evidence that the Borrowers are in compliance with each of the financial covenants set forth in Section 10.3 on a pro forma basis after giving effect to such payment (as if such payment was consummated on the first day of the period of measurement) as determined for last day of month most recently ended prior to such payment (for the trailing twelve month period then-ended), all based on calculations and assumptions acceptable to the Agent.;

Distributions; Upstream Payments. 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 in effect on the Restatement Effective Closing Date as shown on Schedule 9.1.15. Declare or make any Distributions except: (a) Upstream Payments; (b) Each Obligor may declare and make Distributions with respect to its Equity Interests payable solely in additional shares of its Equity Interests; (c) Any Obligor may pay cash dividends to any Obligor that is its direct parent; (d) Any Obligor (other than ParentParametric) may make distributions to permit Parent Parametric to repurchase Equity Interests issued to employees, directors and officers of the Obligors and their Subsidiaries (including repurchases of Equity Interests from severed or terminated employees, directors and officers), and Parent Parametric may repurchase such Equity Interests, in each case in an aggregate amount not to exceed $1,000,000 in any calendar year and $3,000,000 after March 31, 2014the Closing Date, so long as (a) immediately prior to and after giving effect to such payment, no Default or Event of Default has occurred or will occur, (b) for each of the 30 days immediately prior to and immediately after giving effect to such payment, ABL Availability is in an amount greater than 15% of the ABL Revolver Commitments (disregarding any decreased ABL Revolver Commitment amount during the Seasonal Period)Commitments, and ABL US Availability is in an amount greater than 15% of the ABL US Revolver Commitments (disregarding any decreased ABL US Revolver Commitment amount during the Seasonal Period) Commitments, and (c) the Agent shall have received satisfactory evidence that the Borrowers are no FILO Period is in compliance with each of the financial covenants set forth in Section 10.3 on a pro forma basis after giving effect to the repurchase (as if such repurchase was consummated on the first day of the period of measurement) as determined for last day of month most recently ended prior to such repurchase (for the trailing twelve month period then-ended), all based on calculations and assumptions acceptable to the Agenteffect; (e) The Permitted Earnout Payment; (f) Payments of, of Distributions on or redemptions of the Series B Preferred Stock of VTBVoyetra, so long as (a) immediately prior to and after giving effect to such payment, no Default or Event of Default has occurred or will occur, (b) for each of the 60 30 days immediately prior to and after giving effect to such payment, ABL Availability is in an amount greater than 2015% of the ABL Revolver Commitments (disregarding any decreased ABL Revolver Commitment amount during the Seasonal Period)Commitments, and ABL US Availability is in an amount greater than 2015% of the ABL US Revolver Commitments (disregarding any decreased ABL US Revolver Commitment amount during the Seasonal Periodin each case under this clause (b), such percentages shall be 12.5% with respect to the payment of a Distribution on to be paid on or around September 30, 2014 which payment shall not exceed the aggregate amount of $300,000) , and (c) immediately after giving effect to such payment, the Fixed Charge Coverage Ratio no FILO Period is no less than 1.15 to 1.00 (measured on a trailing 12-month basis); and (d) the Agent shall have received satisfactory evidence that the Borrowers are in compliance with each of the financial covenants set forth in Section 10.3 on a pro forma basis after giving effect to such payment, Distribution or redemption (as if such payment, Distribution or redemption was consummated on the first day of the period of measurement) as determined for last day of month most recently ended prior to such payment, Distribution or redemption (for the trailing twelve month period then-ended), all based on calculations and assumptions acceptable to the Agenteffect; and (g) Payments to Sponsor as reimbursements for reasonable out-of-pocket fees and costs incurred by it on behalf of the Borrowers (including, without limitation, the reasonable out-of-pocket costs of attorneys, consultants and accountants), so long as (a) immediately prior to and after giving effect to such payment, no Default or Event of Default has occurred or will occur, (b) for each of the 30 days immediately prior to and after giving effect to such payment, ABL Availability is in an amount greater than 15% of the ABL Revolver Commitments (disregarding any decreased ABL Revolver Commitment amount during the Seasonal Period)Commitments, and ABL US Availability is in an amount greater than 15% of the ABL US Revolver Commitments (disregarding any decreased ABL US Revolver Commitment amount during the Seasonal Period) Commitments, and (c) the Agent shall have received satisfactory evidence that the Borrowers are no FILO Period is in compliance with each of the financial covenants set forth in Section 10.3 on a pro forma basis after giving effect to such payment (as if such payment was consummated on the first day of the period of measurement) as determined for last day of month most recently ended prior to such payment (for the trailing twelve month period then-ended), all based on calculations and assumptions acceptable to the Agenteffect.

Distributions; Upstream Payments. 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 in effect on the Restatement SecondFourth Amendment Effective Date as shown on Schedule 9.1.15. Declare or make any Distributions except: (a) Upstream Payments; (b) Each Obligor may declare and make Distributions with respect to its Equity Interests payable solely in additional shares of its Equity Interests; (c) Any Obligor may pay cash dividends to any Obligor that is its direct parent; (d) Any Without duplication of any repurchase, redemption or other acquisition or retirement made as an Investment which is permitted under clause (f) of the definition of Restricted Investments, any Obligor (other than Parent) may make distributions to permit Parent to repurchase Equity Interests issued to employees, directors and officers of the Obligors and their Subsidiaries (including repurchases of Equity Interests from severed or terminated employees, directors and officers)Parent, and Parent may repurchase such Equity Interests, in each case in an aggregate amount not to exceed $1,000,000 5,000,000 in any calendar year and $3,000,000 10,000,000 in the aggregate, so long as no Event of Default exists immediately before and after March 31giving effect thereto and the Agent shall have received satisfactory evidence that the Borrowers are in compliance with each of the financial covenants set forth in Section 10.3 on a pro forma basis after giving effect thereto (as if such actions were consummated on the first day of the period of measurement) as determined for last day of month most recently ended prior thereto (for the trailing twelve month period then-ended), 2014all based on calculations and assumptions acceptable to the Agent, and in such amounts in excess of the foregoing limitations so long as (a) so long as no Event of Default exists immediately prior to before and after giving effect thereto and the Agent shall have received satisfactory evidence that the Borrowers are in compliance with each of the financial covenants set forth in Section 10.3 on a pro forma basis after giving effect thereto (as if such actions were consummated on the first day of the period of measurement) as determined for last day of month most recently ended prior thereto (for the trailing twelve month period then-ended), all based on calculations and assumptions acceptable to such payment, no Default or Event of Default has occurred or will occurthe Agent, (b) for each of the 30 days immediately prior to and immediately after giving effect to such payment, ABL Availability is in an amount greater than 15% of the ABL Revolver Commitments (disregarding any decreased ABL Revolver Commitment amount during the Seasonal Period), and ABL US Availability is in an amount greater than 15% of the ABL US Revolver Commitments (disregarding any decreased ABL US Revolver Commitment amount during the Seasonal Period) and (c) the Agent shall have received satisfactory evidence that the Borrowers are in compliance with each of the financial covenants set forth in Section 10.3 on a pro forma basis after giving effect to the repurchase (as if such repurchase was consummated on the first day of the period of measurement) as determined for last day of month most recently ended prior to such repurchase (for the trailing twelve month period then-ended), all based on calculations and assumptions acceptable to the Agent; (e) The Permitted Earnout Payment; (f) Payments of, the Obligors may declare and make Distributions on or redemptions to repurchase the Equity Interests of TBC constituting common stock in an aggregate amount not to exceed $30,000,000 within 120 days after the Series B Preferred Stock of VTB, Fourth Amendment Effective Date so long as (ax) immediately prior to and after giving effect to such paymentrepurchase, no Default or Event of Default has occurred or will occur, (by) (A) for each of the 60 30 days immediately prior to and after giving effect to such paymentrepurchase, ABL Availability is in an amount greater than 20% of the ABL Revolver Commitments $10,000,000 (disregarding any decreased ABL Revolver Commitment commitment amount during the Seasonal Period), ) and ABL US Availability is in an amount greater than 20% of the ABL US Revolver Commitments (disregarding any decreased ABL US Revolver Commitment amount during the Seasonal Period), (cB) immediately after giving effect to such payment, the Fixed Charge Coverage Ratio is no less than 1.15 to 1.00 (measured on a trailing 12-month basis); and (d) the Agent shall have received satisfactory evidence that the Borrowers are in compliance with each of the financial covenants set forth in Section 10.3 Ratio, determined on a pro forma basis after giving effect to such payment, Distribution or redemption the repurchase (as if such payment, Distribution or redemption repurchase was consummated on the first day of the period of measurement), is not less than 1.25:1.00 measured on a trailing 12-month basis, and (z) as determined for last day of month most recently ended prior Borrowers have delivered to Agent a certificate pursuant to which Borrowers certify that the conditions set forth above have been satisfied with respect to such payment, Distribution or redemption repurchase (for the trailing twelve month period then-ended“Permitted Stock Repurchase”), all based on calculations and assumptions acceptable to the Agent; (f) [Reserved]; and (g) Payments to Sponsor as reimbursements for reasonable out-of-pocket fees and costs incurred by it on behalf of the Borrowers (including, without limitation, the reasonable out-of-pocket costs of attorneys, consultants and accountants), so long as (a) immediately prior to and after giving effect to such payment, no Default or Event of Default has occurred or will occur, (b) for each of the 30 days immediately prior to and after giving effect to such payment, ABL Availability is in an amount greater than 15% of the ABL Revolver Commitments (disregarding any decreased ABL Revolver Commitment amount during the Seasonal Period), and ABL US Availability is in an amount greater than 15% of the ABL US Revolver Commitments (disregarding any decreased ABL US Revolver Commitment amount during the Seasonal Period) and (c) the Agent shall have received satisfactory evidence that the Borrowers are in compliance with each of the financial covenants set forth in Section 10.3 on a pro forma basis after giving effect to such payment (as if such payment was consummated on the first day of the period of measurement) as determined for last day of month most recently ended prior to such payment (for the trailing twelve month period then-ended), all based on calculations and assumptions acceptable to the Agent.

Distributions; Upstream Payments. 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 in effect on the Restatement Effective Date as shown on Schedule 9.1.15. (a) Declare or make any Distributions Distributions, except: : (ai) Upstream Payments; ; (bii) Each Obligor may declare so long as no Default or Event of Default has occurred and make Distributions with respect to its Equity Interests payable solely in additional shares of its Equity Interests; (c) Any Obligor may pay cash dividends to any Obligor that is its direct parent; (d) Any Obligor (other than Parent) continuing or would result therefrom, Borrowers may make distributions to permit Parent to repurchase Equity Interests issued to employees, directors and officers for the sole purpose of the Obligors and their Subsidiaries (including repurchases of Equity Interests from severed or terminated employees, directors and officers)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 repurchase such Equity Interestsmake distributions to Parent for the sole purpose of allowing Parent to, in each case 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 $1,000,000 in any calendar year and $3,000,000 after March 31, 20145,000,000, so long as (aA) immediately prior to and after giving effect to such payment, no Default or Event of Default has occurred and is continuing or will occurwould result therefrom, (bB) for each 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 30 days 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 “Restricted Investments” as defined in the Guaranty and Security Agreement so long as either: (A) (1) both immediately prior to before and immediately after giving effect to such paymentdistribution, ABL no Event of Default exists and Excess Availability is in greater than an amount greater than 15equal to 17.5% of the ABL aggregate Revolver Commitments (disregarding any decreased ABL Revolver Commitment amount during the Seasonal Period)Commitments, and ABL US Availability is in an amount greater than 15% of the ABL US Revolver Commitments (disregarding any decreased ABL US Revolver Commitment amount during the Seasonal Period2) and (c) the Agent shall have received satisfactory evidence that the Borrowers are in compliance with each of the financial covenants set forth in Section 10.3 on a pro forma basis after giving effect to the repurchase (as if such repurchase was consummated Fixed Charge Coverage Ratio, measured on the first day of the period of measurement) as determined for last day of month most recently ended prior to such repurchase (for the a trailing twelve (12) month period then-ended), all based on calculations and assumptions acceptable to the Agent; (e) The Permitted Earnout Payment; (f) Payments of, Distributions on or redemptions of the Series B Preferred Stock of VTB, so long as (a) immediately prior to and basis after giving effect to such paymentdistribution and recomputed for the most recent month for which financial statements have been delivered to Agent, no Default or Event of Default has occurred or will occur, (b) for each of the 60 days immediately prior to and after giving effect to such payment, ABL Availability is in an amount greater than 20% of the ABL Revolver Commitments 1.0 to 1.0; or (disregarding any decreased ABL Revolver Commitment amount during the Seasonal Period), B) both immediately before and ABL US Availability is in an amount greater than 20% of the ABL US Revolver Commitments (disregarding any decreased ABL US Revolver Commitment amount during the Seasonal Period), (c) immediately after giving effect to such payment, the Fixed Charge Coverage Ratio is no less than 1.15 to 1.00 (measured on a trailing 12-month basis); and (d) the Agent shall have received satisfactory evidence that the Borrowers are in compliance with each of the financial covenants set forth in Section 10.3 on a pro forma basis after giving effect to such payment, Distribution or redemption (as if such payment, Distribution or redemption was consummated on the first day of the period of measurement) as determined for last day of month most recently ended prior to such payment, Distribution or redemption (for the trailing twelve month period then-ended), all based on calculations and assumptions acceptable to the Agent; and (g) Payments to Sponsor as reimbursements for reasonable out-of-pocket fees and costs incurred by it on behalf of the Borrowers (including, without limitation, the reasonable out-of-pocket costs of attorneys, consultants and accountants), so long as (a) immediately prior to and after giving effect to such paymentdistribution, no Default or Event of Default has occurred or will occur, (b) for each of the 30 days immediately prior to exists and after giving effect to such payment, ABL Excess Availability is in greater than an amount greater than 15equal to 25% of the ABL aggregate Revolver Commitments (disregarding any decreased ABL Revolver Commitment amount during the Seasonal Period), and ABL US Availability is in an amount greater than 15% of the ABL US Revolver Commitments (disregarding any decreased ABL US Revolver Commitment amount during the Seasonal Period) and (c) the Agent shall have received satisfactory evidence that the Borrowers are in compliance with each of the financial covenants set forth in Section 10.3 on a pro forma basis after giving effect to such payment (as if such payment was consummated on the first day of the period of measurement) as determined for last day of month most recently ended prior to such payment (for the trailing twelve month period then-ended), all based on calculations and assumptions acceptable to the Agent.Commitments; or

Distributions; Upstream Payments. 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 in effect on the Restatement Effective Date as shown on Schedule 9.1.15. Declare or make any Distributions except: (a) Upstream Payments; (b) Each Obligor may declare and make Distributions with respect to its Equity Interests payable solely in additional shares of its Equity Interests; (c) Any Obligor may pay cash dividends to any Obligor that is its direct parent; (d) Any Obligor (other than Parent) may make distributions to permit Parent to repurchase Equity Interests issued to employees, directors and officers of the Obligors and their Subsidiaries (including repurchases of Equity Interests from severed or terminated employees, directors and officers), and Parent may repurchase such Equity Interests, in each case in an aggregate amount not to exceed $1,000,000 in any calendar year and $3,000,000 after March 31, 2014in the aggregate, so long as (a) immediately prior to and after giving effect to such payment, no Default or Event of Default has occurred or will occur, (b) for each of the 30 days immediately prior to and immediately after giving effect to such payment, ABL Availability is in an amount greater than 15% of the ABL Revolver Commitments (disregarding any decreased ABL Revolver Commitment amount during the Seasonal Period), and ABL US Availability is in an amount greater than 15% of the ABL US Revolver Commitments (disregarding any decreased ABL US Revolver Commitment amount during the Seasonal Period) ), and (c) the Agent shall have received satisfactory evidence that the Borrowers are in compliance with each of the financial covenants set forth in Section 10.3 on a pro forma basis after giving effect to the repurchase (as if such repurchase was consummated on the first day of the period of measurement) as determined for last day of month most recently ended prior to such repurchase (for the trailing twelve month period then-ended), all based on calculations and assumptions acceptable to the Agent; (e) The Permitted Earnout Payment; (f) Payments of, Distributions on or redemptions of the Series B Preferred Stock of VTB, so long as (a) immediately prior to and after giving effect to such payment, no Default or Event of Default has occurred or will occur, (b) for each of the 60 days immediately prior to and after giving effect to such payment, ABL Availability is in an amount greater than 20% of the ABL Revolver Commitments (disregarding any decreased ABL Revolver Commitment amount during the Seasonal Period), and ABL US Availability is in an amount greater than 20% of the ABL US Revolver Commitments (disregarding any decreased ABL US Revolver Commitment amount during the Seasonal Period), (c) immediately after giving effect to such payment, the Fixed Charge Coverage Ratio is no less than 1.15 to 1.00 (measured on a trailing 12-month basis); , and (d) the Agent shall have received satisfactory evidence that the Borrowers are in compliance with each of the financial covenants set forth in Section 10.3 on a pro forma basis after giving effect to such payment, Distribution or redemption (as if such payment, Distribution or redemption was consummated on the first day of the period of measurement) as determined for last day of month most recently ended prior to such payment, Distribution or redemption (for the trailing twelve month period then-ended), all based on calculations and assumptions acceptable to the Agent; and (g) Payments to Sponsor as reimbursements for reasonable out-of-pocket fees and costs incurred by it on behalf of the Borrowers (including, without limitation, the reasonable out-of-pocket costs of attorneys, consultants and accountants), so long as (a) immediately prior to and after giving effect to such payment, no Default or Event of Default has occurred or will occur, (b) for each of the 30 days immediately prior to and after giving effect to such payment, ABL Availability is in an amount greater than 15% of the ABL Revolver Commitments (disregarding any decreased ABL Revolver Commitment amount during the Seasonal Period), and ABL US Availability is in an amount greater than 15% of the ABL US Revolver Commitments (disregarding any decreased ABL US Revolver Commitment amount during the Seasonal Period) ), and (c) the Agent shall have received satisfactory evidence that the Borrowers are in compliance with each of the financial covenants set forth in Section 10.3 on a pro forma basis after giving effect to such payment (as if such payment was consummated on the first day of the period of measurement) as determined for last day of month most recently ended prior to such payment (for the trailing twelve month period then-ended), all based on calculations and assumptions acceptable to the Agent.