Common use of Distributions; Upstream Payments Clause in Contracts

Distributions; Upstream Payments. (a) Declare or make any Distributions, except (i) Upstream Payments; (ii) U.S. Borrower may make Distributions if (A) no Default or Event of Default has occurred and is continuing or would result therefrom, (B) the Aggregate Availability after giving effect to any such Distribution is not less than 20% of the Revolver Commitments, (C) the Fixed Charge Coverage Ratio after giving effect to any such Distribution is, at any time on or before March 31, 2009, at least 0.90 to 1.0 or, at any time thereafter, not less than 1.0 to 1.0, and (D) the aggregate amount of such Distributions (x) made at any one time or as part of a series of related Distributions shall not exceed $5,000,000 in the aggregate or (y) since the Closing Date shall not exceed $10,000,000 in the aggregate minus the aggregate amount of Investments made pursuant to clause (i) of the definition “Restricted Investments”; and (iii) U.S. Borrower may purchase its Equity Interests from its shareholders in Fiscal Year 2009 (and, with the consent of Agent, any other Fiscal Year), if: (A) no Default or Event of Default has occurred and is continuing or would result therefrom, (B) Adjusted Cash Liquidity prior to any such repurchase is not less than [CONFIDENTIAL TREATMENT REQUESTED], (C) the Adjusted Fixed Charge Coverage Ratio after giving effect to any such repurchase is not less than 0.60 to 1.0, and (D) the aggregate amount of all such repurchases since the Closing Date does not exceed [CONFIDENTIAL TREATMENT REQUESTED]; 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 Closing Date as shown on Schedule 9.1.16.

Distributions; Upstream Payments. (a) Declare or make any Distributions, except except: (i) Upstream Payments; (ii) U.S. Borrower may make additional Distributions if provided, that (A) no Default or Event of Default has shall have occurred and is continuing or would result therefrombe continuing, (B) after giving effect to such payment on a pro forma basis, (x) the Aggregate Availability Total Leverage Ratio shall be less than 2.00:100 and (y) the New Borrower shall otherwise be in compliance with all other applicable financial covenants set forth in Section 7.2.17, (C) after giving effect to any such Distribution is not payment, the New Borrower shall have no less than 20$50,000,000 in Liquidity, (D) prior to making any such payment, the Borrowers shall have (and in accordance herewith, be permitted to have) permanently elected to make all interest payments on the Loans in cash for the remainder of the term of this Agreement, (E) all principal on the Loans that comprises previously capitalized interest payments shall have been voluntarily prepaid in full in cash immediately prior to the making of any such payment, (F) prior to, or concurrently with, the making of any such payment, the Borrowers shall make a voluntary prepayment pursuant to Section 3.1.1(a) in an amount equal to 100% of the Revolver Commitments, (C) the Fixed Charge Coverage Ratio after giving effect to amount of any such Distribution is, at any time on or before March 31, 2009, at least 0.90 to 1.0 or, at any time thereafter, not less than 1.0 to 1.0Distribution, and (DG) the aggregate cumulative amount of such Distributions shall not exceed the lesser of (x) made at any one time or retained annual Excess Cash Flow (being the portion of Excess Cash Flow for each Fiscal Year, commencing with the 2014 Fiscal Year, not required to be applied as part a mandatory prepayment pursuant to Section 3.1.1(d) in respect of a series of related Distributions shall not exceed $5,000,000 in the aggregate or such Fiscal Year) and (y) since the Closing Date shall not exceed $10,000,000 7,000,000 in the aggregate minus the aggregate amount of Investments made pursuant to clause (i) of the definition “Restricted Investments”any Fiscal Year; and (iii) U.S. Borrower may purchase its Equity Interests from its shareholders Distributions not to exceed $2,000,000 in Fiscal Year 2009 (andthe aggregate since the Closing Date so long as both before and after giving effect to such Distributions, with the consent of Agent, any other Fiscal Year), if: (A) no Default or Event of Default has shall have occurred and is continuing or would result therefrom, (B) Adjusted Cash Liquidity prior to any such repurchase is not less than [CONFIDENTIAL TREATMENT REQUESTED], (C) the Adjusted Fixed Charge Coverage Ratio after giving effect to any such repurchase is not less than 0.60 to 1.0, and (D) the aggregate amount of all such repurchases since the Closing Date does not exceed [CONFIDENTIAL TREATMENT REQUESTED]be continuing; or or (b) create 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 Closing Date as shown on Schedule 9.1.16Part 7.2.12 of the Disclosure Schedule.

Distributions; Upstream Payments. (a) Declare or make any Distributions, except (i) Upstream Payments; (ii) U.S. US Concrete may declare and pay Distributions with respect to its Equity Interests payable solely in additional shares of its Equity Interests (other than Disqualified Equity Interests); (iii) US Concrete may make Distributions, not exceeding $10,000,000 during any Fiscal Year, pursuant to and in accordance with stock option plans or other benefit plans for management or employees of US Concrete and its Subsidiaries or rights plans for holders of its Equity Interests; (iv) a Borrower may make payments in cash or issue notes to former employees, officers or directors of such Borrower in connection with the redemption or repurchase of Equity Interests in such Borrower from such former employees, officers or directors upon termination of employment with such Borrower or their death or disability in an aggregate amount not to exceed $2,500,000 and provided such notes are subordinate to the Obligations in form and substance reasonably acceptable to the Agent; (v) Subsidiaries may make Distributions if ratably with respect to their Equity Interests; (Avi) no Default Distributions in respect of fractional shares; (vii) other Distributions (including the repurchase or Event retirement of Default has occurred and is continuing or would result therefrom, (B) the Aggregate Availability after giving effect to any such Distribution is not less than 20% warrants existing as of the Revolver Commitments, (C) the Fixed Charge Coverage Ratio after giving effect to any such Distribution is, at any time on or before March 31, 2009, at least 0.90 to 1.0 or, at any time thereafter, not less than 1.0 to 1.0, and (D) the aggregate amount of such Distributions (x) made at any one time or as part of a series of related Distributions shall not exceed $5,000,000 in the aggregate or (y) since the Initial Closing Date shall not exceed $10,000,000 in the aggregate minus the aggregate amount of Investments made pursuant with respect to clause (iUS Concrete’s Equity Interests) so long as all of the definition “Restricted Investments”Distribution Conditions are satisfied with respect thereto; (viii) Distributions in connection with US Concrete’s purchase or redemption of its Equity Interests so long as all of the Stock Redemption Conditions are satisfied with respect thereto; and (iiiix) U.S. Borrower may purchase its Equity Interests from its shareholders in Fiscal Year 2009 (and, with the consent of Agent, any other Fiscal Year), if: (A) no Default or Event of Default has occurred and is continuing or would result therefrom, (B) Adjusted Cash Liquidity prior to any such repurchase is not less than [CONFIDENTIAL TREATMENT REQUESTED], (C) the Adjusted Fixed Charge Coverage Ratio after giving effect to any such repurchase is not less than 0.60 to 1.0Distributions subject to, and (D) the aggregate amount of all such repurchases since the Closing Date does not exceed [CONFIDENTIAL TREATMENT REQUESTED]; permitted by, Section 10.2.7, 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 Law, in effect on the Closing Date as shown on Schedule 9.1.169.1.15 or under an agreement permitted under Section 10.2.13.

Distributions; Upstream Payments. (a) Declare or make any Distributions, except (i) Upstream Payments; (ii) U.S. Borrower may make Distributions if (A) no Default or Event of Default has occurred and is continuing or would result therefrom, (B) the Aggregate Availability after giving effect to any such Distribution is not less than 20% of the Revolver Commitments, (C) the Fixed Charge Coverage Ratio after giving effect to any such Distribution is, at any time on or before March 31, 2009, at least 0.90 to 1.0 or, at any time thereafter, not less than 1.0 to 1.0, and (D) the aggregate amount of such Distributions (x) made at any one time or as part of a series of related Distributions shall not exceed $5,000,000 in the aggregate or (y) since the Closing Date shall not exceed $10,000,000 in the aggregate minus the aggregate amount of Investments made pursuant to clause (i) of the definition “Restricted Investments”aggregate; and (iii) U.S. Borrower may purchase its Equity Interests from its shareholders in Fiscal Year 2009 (and, with the consent of Agent, any other Fiscal Year), if: (A) no Default or Event of Default has occurred and is continuing or would result therefrom, (B) Adjusted Cash Liquidity prior to any such repurchase is not less than [CONFIDENTIAL TREATMENT REQUESTED]$20,000,000, (C) the Adjusted Fixed Charge Coverage Ratio after giving effect to any such repurchase is not less than 0.60 to 1.0, and (D) the aggregate amount of all such repurchases since the Closing Date does not exceed [CONFIDENTIAL TREATMENT REQUESTED]$25,000,000; provided, that with respect to Fiscal Year 2010 only, U.S. Borrower may purchase Equity Interests of its shareholders, subject to the conditions set forth in the preceding sub-clauses (A), (C) and (D), in an amount not to exceed $1,600,000 per Fiscal Quarter (provided that the dollar limitation per Fiscal Quarter shall not apply if, prior to any such repurchase, the Adjusted Cash Liquidity is $20,000,000 or more) and $6,300,000 for all of Fiscal Year 2010; 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 Closing Date as shown on Schedule 9.1.16.”

Distributions; Upstream Payments. (a) Declare or make any Distributions, except except: (i) Upstream Payments; (ii) U.S. Borrower may make additional Distributions if provided, that (A) no Default or Event of Default has shall have occurred and is continuing or would result therefrombe continuing, (B) after giving effect to such payment on a pro forma basis, (x) the Aggregate Availability Total Leverage Ratio shall be less than 2.00:100 and (y) the New Borrower shall otherwise be in compliance with all other applicable financial covenants set forth in Section 7.2.17, (C) after giving effect to any such Distribution is not payment, the New Borrower shall have no less than 20$50,000,000 in Liquidity, (D) prior to making any such payment, the Borrowers shall have permanently elected to make all interest payments on the Second Lien Loans in cash for the remainder of the term of the Second Lien Credit Agreement, (E) all principal on the Second Lien Loans that comprises previously capitalized interest payments shall have been voluntarily prepaid in full in cash immediately prior to the making of any such payment, (F) prior to, or concurrently with, the making of any such payment, the Borrowers shall make a voluntary prepayment pursuant to Section 3.1.1(a) in an amount equal to 100% of the Revolver Commitments, (C) the Fixed Charge Coverage Ratio after giving effect to amount of any such Distribution is, at any time on or before March 31, 2009, at least 0.90 to 1.0 or, at any time thereafter, not less than 1.0 to 1.0Distribution, and (DG) the aggregate cumulative amount of such Distributions shall not exceed the lesser of (x) made at any one time or retained annual Excess Cash Flow (being the portion of Excess Cash Flow for each Fiscal Year, commencing with the 2014 Fiscal Year, not required to be applied as part a mandatory prepayment pursuant to Section 3.1.1(d) in respect of a series of related Distributions shall not exceed $5,000,000 in the aggregate or such Fiscal Year) and (y) since the Closing Date shall not exceed $10,000,000 7,000,000 in the aggregate minus the aggregate amount of Investments made pursuant to clause (i) of the definition “Restricted Investments”any Fiscal Year; and (iii) U.S. Borrower may purchase its Equity Interests from its shareholders Distributions not to exceed $2,000,000 in Fiscal Year 2009 (andthe aggregate since the Closing Date so long as both before and after giving effect to such Distributions, with the consent of Agent, any other Fiscal Year), if: (A) no Default or Event of Default has shall have occurred and is continuing or would result therefrom, (B) Adjusted Cash Liquidity prior to any such repurchase is not less than [CONFIDENTIAL TREATMENT REQUESTED], (C) the Adjusted Fixed Charge Coverage Ratio after giving effect to any such repurchase is not less than 0.60 to 1.0, and (D) the aggregate amount of all such repurchases since the Closing Date does not exceed [CONFIDENTIAL TREATMENT REQUESTED]be continuing; or or (b) create 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 Closing Date as shown on Schedule 9.1.16Part 7.2.12 of the Disclosure Schedule.

Distributions; Upstream Payments. (a) Declare or make any Distributions, except (i) Upstream Payments; (ii) U.S. Borrower may make Distributions if (A) no Default or Event of Default has occurred and is continuing or would result therefrom, (B) the Aggregate Availability after giving effect to any such Distribution is not less than 20% of the Revolver Commitments, (C) the Fixed Charge Coverage Ratio after giving effect to any such Distribution is, at any time on or before March 31, 2009, at least 0.90 to 1.0 or, at any time thereafter, not less than 1.0 to 1.0, and (D) the aggregate amount of such Distributions (x) made at any one time or as part of a series of related Distributions shall not exceed $5,000,000 in the aggregate or (y) since the Closing Date shall not exceed $10,000,000 in the aggregate minus the aggregate amount of Investments made pursuant to clause (i) of the definition “Restricted Investments”aggregate; and (iii) U.S. Borrower may purchase its Equity Interests from its shareholders in Fiscal Year 2009 (and, with the consent of Agent, any other Fiscal Year)shareholders, if: (A) no Default or Event of Default has occurred and is continuing or would result therefrom, (B) Adjusted Cash Liquidity prior to any such repurchase is not less than [CONFIDENTIAL TREATMENT REQUESTED]$20,000,000, (C) the Adjusted Fixed Charge Coverage Ratio after giving effect to any such repurchase is not less than 0.60 to 1.0, and (D) the aggregate amount of all such repurchases since the Closing Date does not exceed [CONFIDENTIAL TREATMENT REQUESTED]$52,000,000; 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 Closing Date as shown on Schedule 9.1.16.”

Distributions; Upstream Payments. (a) Declare or make any Distributions, except (i) Upstream Payments; , pro rata Distributions to holders of Equity Interests in non-wholly owned Subsidiaries and the acquisition of Equity Interests of Group in connection with the cashless exercise of stock options, unless, (iia) U.S. Borrower may make Distributions if (A) at the time of the declaration and making of any such Distribution, no Default or Event of Default has occurred and is continuing or would result therefrom, and (Bb) the Aggregate Availability after upon giving effect to the making of any such Distribution, for the four (4) Fiscal Quarter period most recently ended prior to the proposed date of such Distribution is not less than 20% of the Revolver Commitmentsfor which financial statements and a Compliance Certificate have been delivered to Agent in accordance with Section 10.1.2(a), (Cb) or (d), as applicable, the Consolidated Fixed Charge Coverage Ratio after giving effect to any (including, for this purpose, such Distribution is, at any time on or before March 31, 2009, at least 0.90 to 1.0 or, at any time thereafter, not less proposed Distribution) is greater than 1.0 1.25 to 1.0, Domestic EBITDA is greater than $0 and pro forma Availability is greater than the product of (Di) 0.25, multiplied by (ii) the lesser of (A) the aggregate amount of such Revolver Commitments or (B) the sum of the Accounts Formula Amount, plus the Inventory Formula Amount, minus the Availability Reserve. Notwithstanding anything to the contrary contained herein, Group may make (a) open market purchases of its own Equity Interests substantially contemporaneously with its receipt of the proceeds of Upstream Payments from its Foreign Subsidiaries, in an amount not to exceed $15,000,000 in the aggregate during the term of this Agreement and (b) Distributions during any four (x4) made at any one time or as part of a series of related Fiscal Quarter period in an aggregate amount not to exceed $4,000,000, provided, that, Distributions during the period from February 1, 2011 through July 17, 2012 shall not exceed $5,000,000 5,500,000 in the aggregate or (y) since the Closing Date shall not exceed $10,000,000 and, provided further, that, in the aggregate minus the aggregate amount case of Investments made pursuant to this clause (b), (i) at the time of the definition “Restricted Investments”; declaration and (iii) U.S. Borrower may purchase its Equity Interests from its shareholders in Fiscal Year 2009 (andmaking of any such Distribution, with the consent of Agent, any other Fiscal Year), if: (A) no Default or Event of Default has occurred and is continuing or would result therefromand (ii) upon giving effect to the making of any such Distribution, for the four (4) Fiscal Quarter period most recently ended prior to the proposed date of such Distribution for which financial statements and a Compliance Certificate have been delivered to Agent in accordance with Section 10.1.2(a), (Bb) Adjusted Cash Liquidity prior to any such repurchase is not less than [CONFIDENTIAL TREATMENT REQUESTED]or (d), (C) as applicable, the Adjusted Consolidated Fixed Charge Coverage Ratio after giving effect to any (including, for this purpose, such repurchase is not less than 0.60 to 1.0proposed Distribution, and excluding, for this purpose, (Dx) the aggregate amount charge of all such repurchases since not more than $23,800,000 related to the Closing Date does closure of Borrowers’ 31 boutique stores in June 2010 and (y) an Inventory writedown of not exceed [CONFIDENTIAL TREATMENT REQUESTED]; or (bmore than $25,000,000 in the Fiscal Quarter ending January 31, 2012 related to Borrowers’ melting down of approximately $30,000,000 of watch Inventory and discontinuation of the manufacture of watch movements) create or suffer is greater than 1.25 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 Closing Date as shown on Schedule 9.1.161.0 and pro forma Availability is greater than $12,500,000.”

Distributions; Upstream Payments. (a) Declare or make any Distributions, except (i) Upstream Payments; (ii) U.S. Borrower may make Distributions if (A) no Default or Event of Default has occurred and is continuing or would result therefrom, (B) the Aggregate Availability after giving effect to any such Distribution is not less than 20% of the Revolver Commitments, (C) the Fixed Charge Coverage Ratio after giving effect to any such Distribution is, at any time on or before March 31, 2009, at least 0.90 to 1.0 or, at any time thereafter, not less than 1.0 to 1.0, and (D) the aggregate amount of such Distributions (x) made at any one time or as part of a series of related Distributions shall not exceed $5,000,000 in the aggregate or (y) since the Closing Date shall not exceed $10,000,000 in the aggregate minus the aggregate amount of Investments made pursuant to clause (i) of the definition “Restricted Investments”aggregate; and (iii) U.S. Borrower may purchase its Equity Interests from its shareholders in Fiscal Year 2009 (and, with the consent of Agent, any other Fiscal Year), if: (A) no Default or Event of Default has occurred and is continuing or would result therefrom, (B) Adjusted Cash Liquidity prior to any such repurchase is not less than [CONFIDENTIAL TREATMENT REQUESTED]$20,000,000, (C) the Adjusted Fixed Charge Coverage Ratio after giving effect to any such repurchase is not less than 0.60 to 1.0, and (D) the aggregate amount of all such repurchases since the Closing Date does not exceed [CONFIDENTIAL TREATMENT REQUESTED]$64,000,000; 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 Closing Date as shown on Schedule 9.1.16.”