Common use of Dividends; Redemptions Clause in Contracts

Dividends; Redemptions. Borrower shall not (i) declare, pay or make any dividend or Distribution on any shares of capital stock or other securities or interests (other than dividends or Distributions payable in its stock, or split-ups or reclassifications of its stock), (ii) apply any of its funds, property or assets to the acquisition, redemption or other retirement of any capital stock or other securities or interests or of any options to purchase or acquire any of the foregoing (provided, however, that Borrower may redeem its capital stock from terminated employees (other than the Employees except to the extent permitted under the Employee Subordination Agreements) pursuant to, but only to the extent required under, the terms of the related employment agreements as long as no Default or Event of Default has occurred and is continuing or would be caused by or result from the payment thereof and as long as the aggregate amount of payments made to such terminating employees in any fiscal year does not exceed $50,000), (iii) otherwise make any payments or Distributions to any stockholder, member, partner or other equity owner in such Person's capacity as such, or (iv) make any payment of any Management or Service Fee; provided, however, Borrower may make payments in the ordinary course of business in accordance with the terms of the Employment Agreements to the extent that such payments are not otherwise prohibited under the terms of the Employee Subordination Agreements and payments of Tax Distributions as long as no Event of Default has occurred and is continuing or would result therefrom; provided, further, that Borrower shall not make or suffer to exist any such payment described in (i) through (iii) above if a Default of Event of Default has occurred and is continuing or would result therefrom.

Dividends; Redemptions. Borrower shall not (i) declare, pay or make any dividend or Distribution on any shares of capital stock or other securities or interests (other than dividends or Distributions payable in its stock, or split-ups or reclassifications of its stock), (ii) apply any of its funds, property or assets to the acquisition, redemption or other retirement of any capital stock or other securities or interests or of any options to purchase or acquire any of the foregoing (provided, however, that Borrower may redeem its capital stock from terminated employees (other than the Employees except to the extent permitted under the Employee Subordination Agreements) pursuant to, but only to the extent required under, the terms of the related employment agreements as long as no Default or Event of Default has occurred and is continuing or would be caused by or result from the payment thereof and as long as the aggregate amount of payments made to such terminating employees in any fiscal year does not exceed $50,000), (iii) otherwise make any payments or Distributions to any stockholder, member, partner or other equity owner in such Person's ’s capacity as such, or (iv) make any payment of any Management or Service Fee; provided, however, Borrower may make payments in the ordinary course of business in accordance with the terms of the Employment Agreements to the extent that such payments are not otherwise prohibited under the terms of the Employee Subordination Agreements and payments of Tax Distributions as long as no Event of Default has occurred and is continuing or would result therefrom; provided, further, that Borrower shall not make or suffer to exist any such payment described in (i) through (iii) above if a Default of Event of Default has occurred and is continuing or would result therefrom.

Dividends; Redemptions. No Borrower shall not (i) declare, pay or make any dividend or Distribution distribution on any shares of capital stock or other securities or interests (other than dividends or Distributions distributions payable in its stock, or split-ups or reclassifications of its stock), ; (ii) apply any of its funds, property or assets to the acquisition, redemption or other retirement of any capital stock or other securities or interests or of any options to purchase or acquire any of the foregoing (provided, however, that such Borrower may redeem its capital stock from any terminated employees (other than the Employees except to the extent permitted under the Employee Subordination Agreements) employee pursuant to, but only to the extent required or permitted under, the terms of the related employment or other agreements with such employee, as long as no Default or Event of Default has occurred and is continuing or would be caused by or result from the payment thereof and as long as the aggregate amount of payments made to such terminating employees in any fiscal year does not exceed $50,000therefrom), or (iii) otherwise make any payments or Distributions to any stockholder, member, partner or other equity owner in such Person's capacity as suchan equity owner. Notwithstanding the foregoing, (x) any Borrower may make Distributions and other payments to the owner of such Borrower or to any obligor under the Mezzanine Loan or the Senior Mortgage Term Loan B for the purpose of making required payments with respect thereto; and (ivy) after the payment in full of the Mezzanine Loan and the Senior Mortgage Term Loan B, and provided no Default or Event of Default shall have occurred, be continuing or would exist after giving effect thereto, any Borrower may make dividends or Distribution. In addition, no Borrower shall make any payment of any Management management, service or Service Fee; providedrelated or similar fee to any Person or with respect to any facility owned, however, operated or leased by Borrower may make payments except in the ordinary course of business in accordance with the terms of the Employment Agreements to the extent that such payments are not otherwise prohibited manner permitted under the terms of the Employee Subordination Management Agreements and payments of Tax Distributions as long as no Event of Default has occurred and is continuing or would result therefromthe Management Fee Subordination Agreements; provided, further, provided that Borrower shall not make or suffer to exist any such payment described in (i) through (iii) above of fees under any Management Agreement if a Default of Event of Default has occurred and is continuing or would result therefrom.

Dividends; Redemptions. Borrower shall not (i) declare, pay or make any dividend or Distribution on any shares of capital stock or other securities or interests (other than dividends or Distributions payable in its stock, or split-ups or reclassifications of its stock), (ii) apply any of its funds, property or assets to the acquisition, redemption or other retirement of any capital stock or other securities or interests or of any options to purchase or acquire any of the foregoing (provided, however, that Borrower may redeem its capital stock from terminated employees (other than the Employees except to the extent permitted under the Employee Subordination Agreements) pursuant to, but only to the extent required under, the terms of the related employment agreements as long as no Default or Event of Default has occurred and is continuing or would be caused by or result from the payment thereof and as long as the aggregate amount of payments made to such terminating employees in any fiscal year does not exceed $50,000), (iii) otherwise make any payments or Distributions to any stockholder, member, partner or other equity owner in such Person's ’s capacity as such, or (iv) make any payment of any Management or Service Fee; provided, however, Borrower may (A) make payments in the ordinary course of business in accordance with the terms of the Employment Agreements to the extent that such payments are not otherwise prohibited under the terms of the Employee Subordination Agreements and Agreements, (B) payments of Tax Distributions as long as no Event of Default has occurred and is continuing or would result therefromtherefrom and (C) payments for redemptions or puts as contemplated by Section 5 of the MHR Subordinated Note to the extent that such payments are not otherwise prohibited under the terms of the MHR Subordination Agreement and, if such redemption occurs under (a) Section 5(a), either the Lender has consented to Borrower’s incurrence of the Indebtedness necessary to consummate the Contravening Transaction under Section 7.1 of the Senior Loan Agreement (which consent shall be deemed to be a consent to such redemption under Section 7.5 of the Senior Loan Agreement) or the Obligations are being simultaneously paid in full in cash, (b) Section 5(b) or 5(c) of the MHR Subordinated Note, either the Lender has consented thereto or the Obligations are being simultaneously paid in full in cash, or (c) Section 5(d) of the MHR Subordinated Note, such redemption is made only in strict accordance with such Section 5(d), as in effect on February 28, 2005 and without amendment or modification and the proceeds (net of fees, expenses, commissions and other amounts required to be paid from such proceeds) to Borrower from the exercise of warrants contemplated and described in such Section 5(d) are at least four (4) times the proceeds utilized by Borrower to effect such redemption; provided, further, that Borrower shall not make or suffer to exist any such payment described in (i) through (iii) above if a Default of Event of Default has occurred and is continuing or would result therefrom. (c) The definition of the term “Permitted Subordinated Debt” set forth in Appendix A of the Loan Agreement is hereby amended to read as follows:

Dividends; Redemptions. Borrower shall not (i) declare, pay or make any dividend or Distribution on any shares of capital stock or other securities or interests (other than dividends or Distributions payable in its stock, or split-ups or reclassifications of its stock), (ii) apply any of its funds, property or assets to the acquisition, redemption or other retirement of any capital stock or other securities or interests or of any options to purchase or acquire any of the foregoing (provided, however, that Borrower may redeem its capital stock from terminated employees (other than the Employees except to the extent permitted under the Employee Subordination Agreements) pursuant to, but only to the extent required under, the terms of the related employment agreements as long as no Default or Event of Default has occurred and is continuing or would be caused by or result from the payment thereof and as long as the aggregate amount of payments made to such terminating employees in any fiscal year does not exceed $50,000), (iii) otherwise make any payments or Distributions to any stockholder, member, partner or other equity owner in such Person's ’s capacity as such, or (iv) make any payment of any Management or Service Fee; provided, however, Borrower may (A) make payments in the ordinary course of business in accordance with the terms of the Employment Agreements to the extent that such payments are not otherwise prohibited under the terms of the Employee Subordination Agreements and Agreements, (B) payments of Tax Distributions as long as no Event of Default has occurred and is continuing or would result therefrom, and (C) payments for redemptions or puts as contemplated by Section 5 of the MHR Subordinated Note to the extent that such payments are not otherwise prohibited under the terms of the MHR Subordination Agreement and, if such redemption occurs under (a) Section 5(a), either the Lender has consented to Borrower’s incurrence of the Indebtedness necessary to consummate the Contravening Transaction under Section 7.1 of this Agreement (which consent shall be deemed to be a consent to such redemption under this Section 7.5) or the Obligations are being simultaneously paid in full in cash, (b) Section 5(b) or 5(c) of the MHR Subordinated Note, either the Lender has consented thereto or the Obligations are being simultaneously paid in full in cash, or (c) Section 5(d) of the MHR Subordinated Note, such redemption is made only in strict accordance with such Section 5(d), as in effect on February 28, 2005 and without amendment or modification and the proceeds (net of fees, expenses, commissions and other amounts required to be paid from such proceeds) to Borrower from the exercise of warrants contemplated and described in such Section 5(d) are at least four (4) times the proceeds utilized by Borrower to effect such redemption; provided, further, that Borrower shall not make or suffer to exist any such payment described in (i) through (iiiiv) above if a Default of Event of Default has occurred and is continuing or would result therefrom.

Dividends; Redemptions. No Borrower shall not (i) declare, pay or make any dividend or Distribution distribution on any shares of capital stock or other securities or interests (other than dividends or Distributions distributions payable in its stock, or split-ups or reclassifications of its stock), ; (ii) apply any of its funds, property or assets to the acquisition, redemption or other retirement of any capital stock or other securities or interests or of any options to purchase or acquire any of the foregoing (provided, however, that such Borrower may redeem its capital stock from any terminated employees (other than the Employees except to the extent permitted under the Employee Subordination Agreements) employee pursuant to, but only to the extent required or permitted under, the terms of the related employment or other agreements with such employee, as long as no Default or Event of Default has occurred and is continuing or would be caused by or result from the payment thereof and as long as the aggregate amount of payments made to such terminating employees in any fiscal year does not exceed $50,000therefrom), or (iii) otherwise make any payments or Distributions to any stockholder, member, partner or other equity owner in such Person's capacity as suchan equity owner. Notwithstanding the foregoing, (x) any Borrower (other than Parent) may make Distributions and other payments to the owner of such Borrower; and (y) after the payment in full of the Mezzanine Loan and the Special Advance Amount, and provided no Default or (iv) Event of Default shall have occurred, be continuing or would exist after giving effect thereto, any Borrower may make dividends or Distribution. In addition, no Borrower shall make any payment of any Management management, service or Service Fee; providedrelated or similar fee to any Person or with respect to any facility owned, however, operated or leased by Borrower may make payments except in the ordinary course of business in accordance with the terms of the Employment Agreements to the extent that such payments are not otherwise prohibited manner permitted under the terms of the Employee Subordination Management Agreements and payments of Tax Distributions as long as no Event of Default has occurred and is continuing or would result therefromthe Management Fee Subordination Agreements; provided, further, provided that Borrower shall not make or suffer to exist any such payment described in (i) through (iii) above of fees under any Management Agreement if a Default of Event of Default has occurred and is continuing or would result therefrom.