Common use of Distributions; Upstream Payments Clause in Contracts

Distributions; Upstream Payments. Declare or make any Distributions, except: (a) Upstream Payments; provided, that any Upstream Payments by a Subsidiary (other than a Subsidiary that is a Subsidiary of the Canadian Borrower) to the Canadian Borrower shall not exceed in the aggregate during any Fiscal Year the greater of (x) U.S.$10,000,000 (or its equivalent in other currencies) and (y) 1.00% of Consolidated EBITDA of the Borrowers and the Subsidiaries for the most recently ended period of four consecutive Fiscal Quarters calculated on a pro forma basis; (b) payments by any Borrower or Subsidiary in respect of withholding or similar Taxes payable by any future, present or former officer, director, manager or employee (or any spouse, former spouse, successor, executor, administrator, heir, legatee or distributee of any of the foregoing) and any repurchases of Equity Interests in consideration of such payments including deemed repurchases in connection with the exercise of stock options; provided, that the aggregate amount of all cash payments made pursuant to this clause (b) shall not exceed in any Fiscal Year the greater of (x) $25,000,000 and (y) 3.00% of Consolidated EBITDA of the Borrowers and the Subsidiaries for the most recently ended period of four consecutive Fiscal Quarters calculated on a pro forma basis; (c) UNFI may purchase or redeem in whole or in part any of its Equity Interests for another class of Equity Interests or rights to acquire its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests of UNFI, provided, that any terms and provisions material to the interests of the Lenders, when taken as a whole, contained in such other class of Equity Interests are at least as advantageous to the Lenders as those contained in the Equity Interests redeemed thereby; ABL Credit Agreement”) (including the payment in full of any outstanding interest, fees and expenses owing or accruing under or in respect of the Existing UNFI ABL Credit Agreement) and (B) Supervalu Inc. and its Subsidiaries under (1) the Second Amended and Restated Term Loan Credit Agreement, dated as of January 31, 2014, by and among Supervalu Inc., Xxxxxxx Xxxxx Bank USA, as administrative agent, the lenders party thereto and the other parties party thereto, (2) the Amended and Restated Credit Agreement, dated as of March 21, 2013, by and among Supervalu Inc., Xxxxx Fargo Bank, National Association, as administrative agent, the lenders party thereto and the other parties party thereto, (3) Supervalu Inc.’s 6.75% Senior Notes due June 1, 2021 and (4) Supervalu Inc.’s 7.75% Senior Notes due November 15, 2022 (the repayment, termination, discharge, defeasance, arrangement and release of all such indebtedness in this clause (ii) or, solely, in the case of the Existing UNFI Term Loan Credit Agreement, the giving of irrevocable notice for the repayment or redemption thereof in full, collectively, the “Closing Date Refinancing”), (iii) fees and expenses incurred in connection with the foregoing and transactions related thereto and (iv) working capital and general corporate purposes.

Distributions; Upstream Payments. Declare or make any Distributions, except: (a) Upstream Payments; provided, provided that any Upstream Payments by a Subsidiary (other than a Canadian Subsidiary that is a Subsidiary of the Canadian Borrower) to the Canadian Borrower shall not exceed in the aggregate during any Fiscal Year the greater of (x) U.S.$10,000,000 U.S.$1,000,000 (or its equivalent in other currencies) and (y) 1.00% in the aggregate during the term of Consolidated EBITDA of the Borrowers and the Subsidiaries for the most recently ended period of four consecutive Fiscal Quarters calculated on a pro forma basisthis Agreement; (b) payments by any Borrower or Subsidiary in respect of withholding or similar Taxes payable by any future, present or former officer, director, manager or employee (or any spouse, former spouse, successor, executor, administrator, heir, legatee or distributee of any of the foregoing) and any repurchases of Equity Interests in consideration of such payments including deemed repurchases in connection with the exercise of stock options; provided, provided that the aggregate amount of all cash payments made pursuant to this clause (b) shall not exceed $10,000,000 in any Fiscal Year the greater of (x) $25,000,000 and (y) 3.00% of Consolidated EBITDA of the Borrowers and the Subsidiaries for the most recently ended period of four consecutive Fiscal Quarters calculated on a pro forma basis;Year; and (c) UNFI may purchase or redeem in whole or in part any of its Equity Interests for another class of Equity Interests or rights to acquire its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests of UNFI, provided, provided that any terms and provisions material to the interests of the Lenders, when taken as a whole, contained in such other class of Equity Interests are at least as advantageous to the Lenders as those contained in the Equity Interests redeemed thereby; ABL Credit Agreement”. Notwithstanding the foregoing, UNFI may make Distributions to the extent (a) either (including i) both (A<) no Default or Event of Default shall exist before or after giving effect to the payment in full proposed Distribution, (B>) daily average Aggregate Availability for the 30 consecutive days immediately before making the proposed Distribution, calculated on a pro forma basis after giving effect to such Distribution as if such Distribution had been made at the beginning of any outstanding interestsuch 30 day period, fees and expenses owing or accruing under or in respect is more than<at least> 15% of the Existing UNFI ABL Credit Agreement) Aggregate Borrowing Base<,> and (B<C>) Supervalu Inc. and its Subsidiaries under Borrowers have a Fixed Charge Coverage Ratio of more than<at least> 1.10:1.00 for the most recently completed period of four Fiscal Quarters for which financial statements have been provided pursuant to Section 10.1.2, calculated on a pro forma basis after giving effect to such Distribution as if such Distribution had been made at the beginning of such period of four Fiscal Quarters or (1) ii)<; provided that to the Second Amended and Restated Term Loan Credit Agreementextent> daily average Aggregate Availability for the 30 consecutive days immediately before making the proposed Distribution, dated calculated on a pro forma basis after giving effect to such Distribution as if such Distribution had been made at the beginning of January 31such 30 day period, 2014is more than 25<at least 20>% of the Aggregate Borrowing Base, by and among Supervalu Inc., Xxxxxxx Xxxxx Bank USA, as administrative agent, the lenders party thereto and the other parties party thereto, (2) the Amended and Restated Credit Agreement, dated as of March 21, 2013, by and among Supervalu Inc., Xxxxx Fargo Bank, National Association, as administrative agent, the lenders party thereto and the other parties party thereto, (3) Supervalu Inc.’s 6.75% Senior Notes due June 1, 2021 and (4) Supervalu Inc.’s 7.75% Senior Notes due November 15, 2022 (the repayment, termination, discharge, defeasance, arrangement and release of all such indebtedness in <this clause (C) shall not be applicable, >and (b<ii>) orUNFI shall have delivered to the Administrative Agent and each Lender a statement, solelycertified by the principal financial or accounting officer of UNFI, setting forth, in reasonable detail, computations (determined in a manner reasonably acceptable to the case Administrative Agent) evidencing satisfaction of the Existing UNFI Term Loan Credit Agreement, the giving of irrevocable notice for the repayment or redemption thereof requirements set forth in full, collectively, the “Closing Date Refinancing”), clause (iiia<i>) fees and expenses incurred in connection with the foregoing and transactions related thereto and (iv) working capital and general corporate purposesabove.

Distributions; Upstream Payments. Declare or make any Distributions, except: (a) Upstream Payments; provided, provided that any Upstream Payments by a Subsidiary (other than a Canadian Subsidiary that is a Subsidiary of the Canadian BorrowerUNFI Canada) to the Canadian Borrower UNFI Canada shall not exceed in the aggregate during any Fiscal Year the greater of (x) U.S.$10,000,000 U.S.$1,000,000 (or its equivalent in other currencies) and (y) 1.00% in the aggregate during the term of Consolidated EBITDA of the Borrowers and the Subsidiaries for the most recently ended period of four consecutive Fiscal Quarters calculated on a pro forma basisthis Agreement; (b) payments by any Borrower or Subsidiary in respect of withholding or similar Taxes payable by any future, present or former officer, director, manager or employee (or any spouse, former spouse, successor, executor, administrator, heir, legatee or distributee of any of the foregoing) and any repurchases of Equity Interests in consideration of such payments including deemed repurchases in connection with the exercise of stock options; provided, provided that the aggregate amount of all cash payments made pursuant to this clause (b) shall not exceed $[10,000,000]15,000,000 in any Fiscal Year the greater of (x) $25,000,000 and (y) 3.00% of Consolidated EBITDA of the Borrowers and the Subsidiaries for the most recently ended period of four consecutive Fiscal Quarters calculated on a pro forma basis;Year; and (c) UNFI may purchase or redeem in whole or in part any of its Equity Interests for another class of Equity Interests or rights to acquire its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests of UNFI, provided, provided that any terms and provisions material to the interests of the Lenders, when taken as a whole, contained in such other class of Equity Interests are at least as advantageous to the Lenders as those contained in the Equity Interests redeemed thereby; ABL Credit Agreement”. Notwithstanding the foregoing, UNFI may make Distributions to the extent (i) (including A) no[ Default or] Event of Default shall exist before or after giving effect to the payment in full of any outstanding interestproposed Distribution, fees and expenses owing or accruing under or in respect of the Existing UNFI ABL Credit Agreement) and (B) Supervalu Inc. and its Subsidiaries under (1) daily average Adjusted Aggregate Availability for the Second Amended and Restated Term Loan Credit Agreement30 consecutive days immediately before making the proposed Distribution, dated calculated on a pro forma basis after giving effect to such Distribution as if such Distribution had been made at the beginning of January 31such 30 day period, 2014is at least [15]12.5% of the Aggregate Borrowing Base, by and among Supervalu Inc., Xxxxxxx Xxxxx Bank USA, as administrative agent, the lenders party thereto and the other parties party thereto, (2) the Amended and Restated Credit Agreement, dated as of March 21, 2013, by and among Supervalu Inc., Xxxxx Fargo Bank, National Association, as administrative agent, the lenders party thereto and the other parties party thereto, (3) Supervalu Inc.’s 6.75% Senior Notes due June 1, 2021 and (4C) Supervalu Inc.’s 7.75Borrowers have a Fixed Charge Coverage Ratio of at least [1.10]1.00:1.00 for the most recently completed period of four Fiscal Quarters for which financial statements have been provided pursuant to Section 10.1.2, calculated on a pro forma basis after giving effect to such Distribution as if such Distribution had been made at the beginning of such period of four Fiscal Quarters; provided that to the extent daily average Adjusted Aggregate Availability for the 30 consecutive days immediately before making the proposed Distribution, calculated on a pro forma basis after giving effect to such Distribution as if such Distribution had been made at the beginning of such 30 day period, is at least [20]17.5% Senior Notes due November 15of the Aggregate Borrowing Base, 2022 (the repayment, termination, discharge, defeasance, arrangement and release of all such indebtedness in this clause (C) shall not be applicable, and (ii) orUNFI shall have delivered to the Administrative Agent and each Lender a statement, solelycertified by the principal financial or accounting officer of UNFI, setting forth, in reasonable detail, computations (determined in a manner reasonably acceptable to the case Administrative Agent) evidencing satisfaction of the Existing UNFI Term Loan Credit Agreement, the giving of irrevocable notice for the repayment or redemption thereof requirements set forth in full, collectively, the “Closing Date Refinancing”), clause (iiii) fees and expenses incurred in connection with the foregoing and transactions related thereto and (iv) working capital and general corporate purposesabove.

Distributions; Upstream Payments. Declare or make any Distributions, exceptexcept Upstream Payments; 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 in effect on the Closing Date as shown on Schedule 9.1.15; provided, however, that (i) the Borrowers may make Distributions so long as: (A) no Default or Event of Default exists or is caused thereby, and (B) upon giving pro forma effect thereto, for the 30 days preceding on an average daily basis and as of the Distribution, Availability is at least the greater of: (1) 20% of the Borrowing Base, and (2) $5,000,000; and (ii) in addition to any Distributions permitted under clause (i) above, Radiant may redeem its shares of the Series A Preferred Stock to the extent solely using identifiable proceeds of a substantially concurrent issuance and sale of common stock of Radiant.” 2. Effectiveness of this Amendment. The following shall have occurred before this Amendment is effective: (a) Upstream Payments; provided, that any Upstream Payments by Lender shall have received this Amendment fully executed in a Subsidiary (other than a Subsidiary that is a Subsidiary sufficient number of the Canadian Borrower) counterparts for distribution to the Canadian Borrower shall not exceed in the aggregate during any Fiscal Year the greater of (x) U.S.$10,000,000 (or its equivalent in other currencies) and (y) 1.00% of Consolidated EBITDA of the Borrowers and the Subsidiaries for the most recently ended period of four consecutive Fiscal Quarters calculated on a pro forma basis;all parties. (b) payments Lender shall have received acknowledgments of all filings or recordations necessary to perfect its Liens in the Collateral of New Borrower, as well as UCC and Lien searches and other evidence satisfactory to Lender that such Liens are the only Liens upon the Collateral of New Borrower, except Permitted Liens. (c) Lender shall have received a certificate, in form and substance satisfactory to it, from a knowledgeable Senior Officer of New Borrower certifying that, after giving effect to this Amendment, (i) New Borrower is Solvent; (ii) no Default or Event of Default exists; (iii) the representations and warranties set forth in Section 9 of the Loan Agreement are true and correct; and (iv) New Borrower has complied with all agreements and conditions to be satisfied by it under the Loan Documents. (d) Lender shall have received a certificate of a duly authorized officer of New Borrower, certifying (i) that attached copies of New Borrower’s Organic Documents are true and complete, and in full force and effect, without amendment except as shown; (ii) that an attached copy of resolutions authorizing execution and delivery of the Loan Documents is true and complete, and that such resolutions are in full force and effect, were duly adopted, have not been amended, modified or revoked, and constitute all resolutions adopted with respect to such credit facility; and (iii) to the title, name and signature of each Person authorized to sign the Loan Documents. Lender may conclusively rely on this certificate until it is otherwise notified by New Borrower in writing. (e) Lender shall have received a written opinion of Fox Rothschild LLP, in form and substance satisfactory to Lender. (f) Lender shall have received copies of the charter documents of New Borrower, certified by the Secretary of State or other appropriate official of New Borrower’s jurisdiction of organization. Lender shall have received a good standing certificate for New Borrower, issued by the Secretary of State or other appropriate official of New Borrower’s jurisdiction of organization and each jurisdiction where New Borrower’s conduct of business or ownership of Property necessitates qualification. (g) Lender shall have received copies of policies or certificates of insurance for the insurance policies carried by New Borrower, all in compliance with the Loan Documents, together with endorsements naming Lender as lender loss payee in form and substance satisfactory to Lender. (h) Lender shall have received all certificates representing the Equity Interests of New Borrower pledged pursuant to the Loan Documents, to the extent such Equity Interests are certificated. (i) The representations and warranties set forth herein and in the Loan Agreement (other than any Borrower such representations or Subsidiary warranties that, by their terms, are specifically made as of a date other than the date hereof) must be true and correct in respect of withholding or similar Taxes payable by all material respects (except that such materiality qualifier shall not be applicable to any future, present or former officer, director, manager or employee (or any spouse, former spouse, successor, executor, administrator, heir, legatee or distributee portion of any representation and warranty that is already qualified or modified by materiality in the text thereof). (j) No event has occurred and is continuing that constitutes an Event of the foregoingDefault. (k) All other documents and any repurchases of Equity Interests in consideration of such payments including deemed repurchases legal matters in connection with the exercise of stock options; provided, that the aggregate amount of all cash payments made pursuant transactions contemplated by this Amendment shall have been delivered or executed or recorded and shall be in form and substance satisfactory to this clause (b) shall not exceed in any Fiscal Year the greater of (x) $25,000,000 and (y) 3.00% of Consolidated EBITDA of the Borrowers and the Subsidiaries for the most recently ended period of four consecutive Fiscal Quarters calculated on a pro forma basis; (c) UNFI may purchase or redeem in whole or in part any of its Equity Interests for another class of Equity Interests or rights to acquire its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests of UNFI, provided, that any terms and provisions material to the interests of the Lenders, when taken as a whole, contained in such other class of Equity Interests are at least as advantageous to the Lenders as those contained in the Equity Interests redeemed thereby; ABL Credit Agreement”) (including the payment in full of any outstanding interest, fees and expenses owing or accruing under or in respect of the Existing UNFI ABL Credit Agreement) and (B) Supervalu Inc. and its Subsidiaries under (1) the Second Amended and Restated Term Loan Credit Agreement, dated as of January 31, 2014, by and among Supervalu Inc., Xxxxxxx Xxxxx Bank USA, as administrative agent, the lenders party thereto and the other parties party thereto, (2) the Amended and Restated Credit Agreement, dated as of March 21, 2013, by and among Supervalu Inc., Xxxxx Fargo Bank, National Association, as administrative agent, the lenders party thereto and the other parties party thereto, (3) Supervalu Inc.’s 6.75% Senior Notes due June 1, 2021 and (4) Supervalu Inc.’s 7.75% Senior Notes due November 15, 2022 (the repayment, termination, discharge, defeasance, arrangement and release of all such indebtedness in this clause (ii) or, solely, in the case of the Existing UNFI Term Loan Credit Agreement, the giving of irrevocable notice for the repayment or redemption thereof in full, collectively, the “Closing Date Refinancing”), (iii) fees and expenses incurred in connection with the foregoing and transactions related thereto and (iv) working capital and general corporate purposesLender.

Distributions; Upstream Payments. Declare Without the prior written consent of the Lender, declare or make any Distributions, except: except (ai) Upstream Payments; provided, that any Upstream Payments (ii) so long as no Event of Default shall have occurred and is continuing, Distributions by a Subsidiary (other than a Subsidiary that is a Subsidiary of the Canadian Borrower) to the Canadian Borrower shall not exceed in the aggregate during any Fiscal Year the greater of (x) U.S.$10,000,000 (or its equivalent in other currencies) and (y) 1.00% of Consolidated EBITDA of the Borrowers and the Subsidiaries for the most recently ended period of four consecutive Fiscal Quarters calculated on a pro forma basis; (b) payments by any Borrower or Subsidiary in respect of withholding or similar Taxes payable by any future, present or former officer, director, manager or employee (Company or any spouseSubsidiary to Holdings to discharge the consolidated tax liabilities of Holdings and its Subsidiaries, former spouse, successor, executor, administrator, heir, legatee or distributee of any of the foregoing(iii) Holdings and any repurchases of Equity Interests in consideration of such payments including deemed repurchases in connection with the exercise of stock options; provided, that the aggregate amount of all cash payments made pursuant to this clause (b) shall not exceed in any Fiscal Year the greater of (x) $25,000,000 and (y) 3.00% of Consolidated EBITDA of the Borrowers and the Subsidiaries for the most recently ended period of four consecutive Fiscal Quarters calculated on a pro forma basis; (c) UNFI may purchase or redeem in whole or in part any each of its Equity Interests for another class of Equity Interests or rights to acquire its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests of UNFI, provided, that any terms and provisions material to the interests of the Lenders, when taken as a whole, contained in such other class of Equity Interests are at least as advantageous to the Lenders as those contained Subsidiaries may pay Distributions payable solely in the Equity Interests redeemed therebyof Holdings; ABL Credit Agreement”(iv) (including the payment in full of any outstanding interest, fees and expenses owing or accruing under or in respect as a result of the Existing UNFI ABL Credit AgreementLender returning the remaining Required Cash Collateral to one or more of the Sponsors on the Required Cash Collateral Release Date (which return may be effective by Lender’s release of its Lien on the Required Cash Collateral), Holdings may pay liquidating distributions on the Required Cash Collateral Release Date with respect to Holdings’ preferred Equity Interests in an amount not to exceed the remaining Required Cash Collateral, and (v) on or after the Required Cash Collateral Release Date, Distributions from the Company to Holdings (and in turn, if desired by Holdings, from Holdings to the holders of the Equity Interest in Holdings) in an aggregate amount not to exceed the sum of (A) any Required Cash Collateral withdrawn by the Lender from the Cash Collateral Accounts as the result of an Event of Default under Section 10.3.1 or 10.3.2 in accordance with the Security Agreement (Deposit Accounts – Specific) among certain of the Sponsors and the Lender plus (B) Supervalu Inc. $2,500,000, so long (a) as both before and its Subsidiaries under (1) the Second Amended and Restated Term Loan Credit Agreementafter giving effect to such Distribution, dated as no Default or Event of January 31Default shall have occurred or shall result therefrom, 2014, by and among Supervalu Inc., Xxxxxxx Xxxxx Bank USA, as administrative agent, the lenders party thereto and the other parties party thereto, (2) the Amended and Restated Credit Agreement, dated as of March 21, 2013, by and among Supervalu Inc., Xxxxx Fargo Bank, National Association, as administrative agent, the lenders party thereto and the other parties party thereto, (3) Supervalu Inc.’s 6.75% Senior Notes due June 1, 2021 and (4b) Supervalu Inc.’s 7.75% Senior Notes due November 15immediately before and after giving effect to such Distribution, 2022 Obligors shall have a Fixed Charge Coverage Ratio of at least 1.25 to 1.00. (the repayment, termination, discharge, defeasance, arrangement and release of all such indebtedness in this clause (iii) or, solely, in the case Section 10.2.15 of the Existing UNFI Term Loan Credit Agreement, the giving of irrevocable notice for the repayment or redemption thereof Agreement is hereby amended in full, collectively, the “Closing Date Refinancing”), (iii) fees and expenses incurred in connection with the foregoing and transactions related thereto and (iv) working capital and general corporate purposes.its entirety to read as follows: