Common use of Payments and Distributions Clause in Contracts

Payments and Distributions. In the event that, notwithstanding the provisions of Section 15.02, any payment or distribution of assets of the Company of any kind or character, whether in cash, property or securities (other than securities of the Company as reorganized or readjusted or securities of the Company or any other corporation provided for by a plan of reorganization or readjustment the payment of which is subordinate, at least to the extent provided in this Article Fifteen with respect to the Subordinated Securities, to the payment of all indebtedness of the nature of Senior Indebtedness, provided that the rights of the holders of the Senior Indebtedness are not altered by such reorganization or readjustment) shall be received by the Holders of Subordinated Securities or by the Trustee for their benefit in connection with any proceedings or sale referred to in subsection (a) of Section 15.02 before all Senior Indebtedness is paid in full in money, such payment or distribution shall be paid over to the trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or other Person making payment or distribution of assets of the Company, if any, otherwise such payment or distribution shall be paid over to the holders of such Senior Indebtedness or their representative or representatives or to the trustee or trustees under any indenture under which any instruments evidencing any of such Senior Indebtedness may have been issued, ratably according to the aggregate amounts remaining unpaid on account of the Senior Indebtedness held or represented by each, for application to the payment of all Senior Indebtedness remaining unpaid until all such Senior Indebtedness shall have been paid in full in money, after giving effect to any concurrent payment or distribution to the holders of such Senior Indebtedness. From and after the payment in full in money of all Senior Indebtedness, the Holders of Subordinated Securities (together with the holders of any other indebtedness of the Company which is subordinate in right of payment to the payment in full of all Senior Indebtedness, which is not subordinate in right of payment to the Subordinated Securities and which by its terms grants such right of subrogation to the holder thereof) shall be subrogated to the rights of the holders of Senior Indebtedness to receive payments or distributions of assets or securities of the Company applicable to the Senior Indebtedness until the Subordinated Securities shall be paid in full, and, for the purposes of such subrogation, no such payments or distributions to the holders of Senior Indebtedness of assets or securities, which otherwise would have been payable or distributable to Holders of Subordinated Securities, shall, as between the Company, its creditors other than the holders of Senior Indebtedness and the Holders, be deemed to be a payment by the Company to or on account of the Senior Indebtedness, it being understood that the provisions of this Article Fifteen are and are intended solely for the purpose of defining the relative rights of the Holders, on the one hand, and the holders of the Senior Indebtedness, on the other hand, and nothing contained in this Article Fifteen or elsewhere in this Indenture or in the Subordinated Securities is intended to or shall impair as between the Company, its creditors other than the holders of Senior Indebtedness and the Holders of Subordinated Securities, the obligation of the Company, which is unconditional and absolute, to pay to the Holders of Subordinated Securities the principal of and interest on the Subordinated Securities as and when the same shall become due and payable in accordance with their terms, or to affect the relative rights of the Holders of Subordinated Securities and creditors of the Company other than the holders of the Senior Indebtedness, nor shall anything herein or therein prevent the Trustee or the Holder of any Subordinated Security from exercising all remedies otherwise permitted by applicable law upon default under this Indenture subject to the rights of the holders of Senior Indebtedness, under Section 15.02, to receive cash, property or securities of the Company otherwise payable or deliverable to the Holders of the Subordinated Securities. Upon any distribution or payment in connection with any proceedings or sale referred to in subsection (a) of Section 15.02, the Trustee, subject as between the Trustee and the Holders of Subordinated Securities to the provisions of Section 1.04 hereof, shall be entitled to rely upon a certificate of the liquidating trustee or agent or other person making any distribution or payment to the Trustee, the amount of such Senior Indebtedness or the amount payable thereon, the amount or amounts paid or distributed thereon and all other facts pertinent thereto or to this Article Fifteen. In the event that the Trustee determines, in good faith, that further evidence is required with respect to the right of any person as a holder of Senior Indebtedness to participate in any payment or distribution pursuant to this Section 15.03, the Trustee may request such person to furnish evidence to the reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness held by such person, as to the extent to which such person is entitled to participate in such payment or distribution, and as to other facts pertinent to the rights of such person under this Section 15.03, and if such evidence is not furnished, the Trustee may defer any payment to such person pending judicial determination as to the right of such person to receive such payment. The Trustee, however, shall not be deemed to owe any fiduciary duty to the holders of Senior Indebtedness, and shall not be liable to any such holders if it shall in good faith pay over or distribute to Holders of Subordinated Securities or the Company or any other person moneys or assets to which any holders of Senior Indebtedness shall be entitled by virtue of Article Fifteen of this Indenture or otherwise.

Payments and Distributions. In the event that, notwithstanding the provisions of Section 15.02, any payment or distribution of assets of the Company of any kind or character, whether in cash, property or securities (other than securities of the Company as reorganized or readjusted or 47 securities of the Company or any other corporation provided for by a plan of reorganization or readjustment the payment of which is subordinate, at least to the extent provided in this Article Fifteen with respect to the Subordinated Securities, to the payment of all indebtedness of the nature of Senior Indebtedness, provided that the rights of the holders of the Senior Indebtedness are not altered by such reorganization or readjustment) shall be received by the Holders of Subordinated Securities or by the Trustee for their benefit in connection with any proceedings or sale referred to in subsection (a) of Section 15.02 before all Senior Indebtedness is paid in full in money, such payment or distribution shall be paid over to the trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or other Person making payment or distribution of assets of the Company, if any, otherwise such payment or distribution shall be paid over to the holders of such Senior Indebtedness or their representative or representatives or to the trustee or trustees under any indenture under which any instruments evidencing any of such Senior Indebtedness may have been issued, ratably according to the aggregate amounts remaining unpaid on account of the Senior Indebtedness held or represented by each, for application to the payment of all Senior Indebtedness remaining unpaid until all such Senior Indebtedness shall have been paid in full in money, after giving effect to any concurrent payment or distribution to the holders of such Senior Indebtedness. From and after the payment in full in money of all Senior Indebtedness, the Holders of Subordinated Securities (together with the holders of any other indebtedness of the Company which is subordinate in right of payment to the payment in full of all Senior Indebtedness, which is not subordinate in right of payment to the Subordinated Securities and which by its terms grants such right of subrogation to the holder thereof) shall be subrogated to the rights of the holders of Senior Indebtedness to receive payments or distributions of assets or securities of the Company applicable to the Senior Indebtedness until the Subordinated Securities shall be paid in full, and, for the purposes of such subrogation, no such payments or distributions to the holders of Senior Indebtedness of assets or securities, which otherwise would have been payable or distributable to Holders of Subordinated Securities, shall, as between the Company, its creditors other than the holders of Senior Indebtedness and the Holders, be deemed to be a payment by the Company to or on account of the Senior Indebtedness, it being understood that the provisions of this Article Fifteen are and are intended solely for the purpose of defining the relative rights of the Holders, on the one hand, and the holders of the Senior Indebtedness, on the other hand, and nothing contained in this Article Fifteen or elsewhere in this Indenture or in the Subordinated Securities is intended to or shall impair as between the Company, its creditors other than the holders of Senior Indebtedness and the Holders of Subordinated Securities, the obligation of the Company, which is unconditional and absolute, to pay to the Holders of Subordinated Securities the principal of and interest on the Subordinated Securities as and when the same shall become due and payable in accordance with their terms, or to affect the relative rights of the Holders of Subordinated Securities and creditors of the Company other than the holders of the Senior Indebtedness, nor shall anything herein or therein prevent the Trustee or the Holder of any Subordinated Security from exercising all remedies otherwise permitted by applicable law upon default under this Indenture subject to the rights of the holders of Senior Indebtedness, under Section 15.02, to receive cash, property or securities of the Company otherwise payable or deliverable to the Holders of the Subordinated Securities. Upon any distribution or payment in connection with any proceedings or sale referred to in subsection (a) of Section 15.02, the Trustee, subject as between the Trustee and the Holders of Subordinated Securities to the provisions of Section 1.04 hereof, shall be entitled to rely upon a certificate of the liquidating trustee or agent or other person making any distribution or payment to the Trustee, the amount of such Senior Indebtedness or the amount payable thereon, the amount or amounts paid or distributed thereon and all other facts pertinent thereto or to this Article Fifteen. In the event that the Trustee determines, in good faith, that further evidence is required with respect to the right of any person as a holder of Senior Indebtedness to participate in any payment or distribution pursuant to this Section 15.03, the Trustee may request such person to furnish evidence to the reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness held by such person, as to the extent to which such person is entitled to participate in such payment or distribution, and as to other facts pertinent to the rights of such person under this Section 15.03, and if such evidence is not furnished, the Trustee may defer any payment to such person pending judicial determination as to the right of such person to receive such payment. The Trustee, however, shall not be deemed to owe any fiduciary duty to the holders of Senior Indebtedness, and shall not be liable to any such holders if it shall in good faith pay over or distribute to Holders of Subordinated Securities or the Company or any other person moneys or assets to which any holders of Senior Indebtedness shall be entitled by virtue of Article Fifteen of this Indenture or otherwise.

Payments and Distributions. In the event that, notwithstanding the provisions of Section 15.0211.02, any payment or distribution of assets of the Company of any kind or character, whether in cash, property or securities (other than securities of the Company as reorganized or readjusted or securities of the Company or any other corporation provided for by a plan of reorganization or readjustment the payment of which is subordinate, at least to the extent provided in this Article Fifteen Eleven with respect to the Subordinated SecuritiesNotes, to the payment of all indebtedness of the nature of Senior Indebtedness, provided that the rights of the holders of the Senior Indebtedness are not altered by such reorganization or readjustment) shall be received by the Holders of Subordinated Securities Notes or by the Trustee for their benefit in connection with any proceedings or sale referred to in subsection (a) of Section 15.02 11.02 before all Senior Indebtedness is paid in full in money, such payment or distribution shall be paid over to the trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or other Person making payment or distribution of assets of the Company, if any, otherwise such payment or distribution shall be paid over to the holders of such Senior Indebtedness or their representative or representatives or to the trustee or trustees under any indenture under which any instruments evidencing any of such Senior Indebtedness may have been issued, ratably according to the aggregate amounts remaining unpaid on account of the Senior Indebtedness held or represented by each, for application to the payment of all Senior Indebtedness remaining unpaid until all such Senior Indebtedness shall have been paid in full in money, after giving effect to any concurrent payment or distribution to the holders of such Senior Indebtedness. From and after the payment in full in money of all Senior Indebtedness, the Holders of Subordinated Securities Notes (together with the holders of any other indebtedness of the Company which is subordinate in right of payment to the payment in full of all Senior Indebtedness, which is not subordinate in right of payment to the Subordinated Securities Notes and which by its terms grants such right of subrogation to the holder thereof) shall be subrogated to the rights of the holders of Senior Indebtedness to receive payments or distributions of assets or securities of the Company applicable to the Senior Indebtedness until the Subordinated Securities Notes shall be paid in full, and, for the purposes of such subrogation, no such payments or distributions to the holders of Senior Indebtedness of assets or securities, which otherwise would have been payable or distributable to Holders of Subordinated SecuritiesNotes, shall, as between the Company, its creditors other than the holders of Senior Indebtedness and the Holders, be deemed to be a payment by the Company to or on account of the Senior Indebtedness, it being understood that the provisions of this Article Fifteen Eleven are and are intended solely for the purpose of defining the relative rights of the Holders, on the one hand, and the holders of the Senior Indebtedness, on the other hand, and nothing contained in this Article Fifteen Eleven or elsewhere in this Indenture or in the Subordinated Securities Notes is intended to or shall impair as between the Company, its creditors other than the holders of Senior Indebtedness and the Holders of Subordinated SecuritiesNotes, the obligation of the Company, which is unconditional and absolute, to pay to the Holders of Subordinated Securities Notes the principal of and interest on the Subordinated Securities Notes as and when the same shall become due and payable in accordance with their terms, or to affect the relative rights of the Holders of Subordinated Securities Notes and creditors of the Company other than the holders of the Senior Indebtedness, nor shall anything herein or therein prevent the Trustee or the Holder of any Subordinated Security Note from exercising all remedies otherwise permitted by applicable law upon default Default under this Indenture subject to the rights of the holders of Senior Indebtedness, under Section 15.0211.02, to receive cash, property or securities of the Company otherwise payable or deliverable to the Holders of the Subordinated SecuritiesNotes. Upon any distribution or payment in connection with any proceedings or sale referred to in subsection (a) of Section 15.0211.02, the Trustee, subject as between the Trustee and the Holders of Subordinated Securities Notes to the provisions of Section 1.04 7.02 hereof, shall be entitled to conclusively rely upon a certificate of the liquidating trustee or agent or other person making any distribution or payment to the Trustee, the amount of such Senior Indebtedness or the amount payable thereon, the amount or amounts paid or distributed thereon and all other facts pertinent thereto or to this Article FifteenEleven. In the event that the Trustee determines, in good faith, that further evidence is required with respect to the right of any person as a holder of Senior Indebtedness to participate in any payment or distribution pursuant to this Section 15.0311.03, the Trustee may request such person to furnish evidence to the reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness held by such person, as to the extent to which such person is entitled to participate in such payment or distribution, and as to other facts pertinent to the rights of such person under this Section 15.0311.03, and if such evidence is not furnished, the Trustee may defer any payment to such person pending judicial determination as to the right of such person to receive such payment. The Trustee, however, shall not be deemed to owe any fiduciary duty to the holders of Senior Indebtedness, and shall not be liable to any such holders if it shall in good faith pay over or distribute to Holders of Subordinated Securities Notes or the Company or any other person moneys or assets to which any holders of Senior Indebtedness shall be entitled by virtue of Article Fifteen Eleven of this Indenture or otherwise. With respect to holders of Senior Indebtedness, the Trustee undertakes to perform or to observe only such of its covenants and obligations as are specifically set forth in this Article Eleven and no implied covenants or obligations with respect to holders of Senior Indebtedness shall be read into this Indenture against the Trustee.

Payments and Distributions. In the event that, notwithstanding the provisions of Section 15.0214.02, any payment or distribution of assets of the Company of any kind or character, whether in cash, property or securities (other than securities of the Company as reorganized or readjusted or securities of the Company or any 75 other corporation provided for by a plan of reorganization or readjustment the payment of which is subordinate, at least to the extent provided in this Article Fifteen Fourteen with respect to the Subordinated Securities, to the payment of all indebtedness of the nature of Senior IndebtednessObligations, provided that the rights of the holders of the Senior Indebtedness Obligations are not altered by such reorganization or readjustment) shall be received by the Holders of Subordinated Securities holders or by the Trustee for their benefit in connection with any proceedings or sale referred to in subsection (a) of Section 15.02 14.02 before all Senior Indebtedness Obligations is paid in full in money, such payment or distribution shall be paid over to the trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or other Person making payment or distribution of assets of the Company, if any, otherwise such payment or distribution shall be paid over to the holders of such Senior Indebtedness Obligations or their representative or representatives or to the trustee or trustees under any indenture under which any instruments evidencing any of such Senior Indebtedness Obligations may have been issued, ratably according to the aggregate amounts remaining unpaid on account of the Senior Indebtedness Obligations held or represented by each, for application to the payment of all Senior Indebtedness Obligations remaining unpaid until all such Senior Indebtedness Obligations shall have been paid in full in money, after giving effect to any concurrent payment or distribution to the holders of such Senior IndebtednessObligations. From and after the payment in full in money of all Senior IndebtednessObligations, the Holders holders of Subordinated Securities (together with the holders of any other indebtedness of the Company which is subordinate in right of payment to the payment in full of all Senior IndebtednessObligations, which is not subordinate in right of payment to the Subordinated Securities and which by its terms grants such right of subrogation to the holder thereof) shall be subrogated to the rights of the holders of Senior Indebtedness Obligations to receive payments or distributions of assets or securities of the Company applicable to the Senior Indebtedness Obligations until the Subordinated Securities shall be paid in full, and, for the purposes of such subrogation, no such payments or distributions to the holders of Senior Indebtedness Obligations of assets or securities, which otherwise would have been payable or distributable to Holders holders of Subordinated Securities, shall, as between the Company, its creditors other than the holders of Senior Indebtedness Obligations, and the Holdersholders, be deemed to be a payment by the Company to or on account of the Senior IndebtednessObligations, it being understood that the provisions of this Article Fifteen Fourteen are and are intended solely for the purpose of defining the relative rights of the Holdersholders, on the one hand, and the holders of the Senior IndebtednessObligations, on the other hand, and nothing contained in this Article Fifteen Fourteen or elsewhere in this Indenture or in the Subordinated Securities is intended to or shall impair as between the Company, its creditors other than the holders of Senior Indebtedness Obligations, and the Holders of Subordinated Securitiesholders, the obligation of the Company, which is unconditional and absolute, to pay to the Holders of Subordinated Securities holders the principal of and interest on the Subordinated Securities as and when the same shall become due and payable in accordance with their terms, or to affect the relative rights of the Holders of Subordinated Securities holders and creditors of the Company other than the holders of the Senior IndebtednessObligations, nor shall anything herein or therein prevent the Trustee or the Holder holder of any Subordinated Security from exercising all remedies otherwise permitted by applicable law upon default under this Indenture subject to the rights of the holders of Senior IndebtednessObligations, under Section 15.0214.02, to receive cash, property or securities of the Company otherwise payable or deliverable to the Holders holders of the Subordinated Securities. 76 Upon any distribution or payment in connection with any proceedings or sale referred to in subsection (a) of Section 15.0214.02, the Trustee, subject as between the Trustee and the Holders of Subordinated Securities holders to the provisions of Section 1.04 hereof, shall be entitled to rely upon a certificate of the liquidating trustee or agent or other person making any distribution or payment to the TrusteeTrustee for the purpose of ascertaining the holders of Senior Obligations entitled to participate in such payment or distribution, the amount of such Senior Indebtedness Obligations or the amount payable thereon, the amount or amounts paid or distributed thereon and all other facts pertinent thereto or to this Article FifteenFourteen. In the event that the Trustee determines, in good faith, that further evidence is required with respect to the right of any person as a holder of Senior Indebtedness Obligations to participate in any payment or distribution pursuant to this Section 15.0314.03, the Trustee may request such person to furnish evidence to the reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness Obligations held by such person, as to the extent to which such person is entitled to participate in such payment or distribution, and as to other facts pertinent to the rights of such person under this Section 15.0314.03, and if such evidence is not furnished, the Trustee may defer any payment to such person pending judicial determination as to the right of such person to receive such payment. The Trustee, however, shall not be deemed to owe any fiduciary duty to the holders of Senior IndebtednessObligations, and shall not be liable to any such holders if it shall in good faith pay over or distribute to Holders holders of Subordinated Securities or the Company or any other person moneys or assets to which any holders of Senior Indebtedness Obligations shall be entitled by virtue of Article Fifteen Fourteen of this Indenture or otherwise.

Payments and Distributions. In the event thatDeclare or pay any dividends, notwithstanding the provisions of Section 15.02, management fees or like fees or make any payment or other distribution of assets cash or property or both to any of the Company Stockholders other than, (i) so long as no Default or Event of Default exists or would exist immediately after payment thereof, the quarterly management fee payable to InSight Capital Partners III, L.P., or any successor entity, not to exceed $125,000 in any Borrower fiscal quarter and (ii) directors' fees and compensation for services rendered to the Borrower and/or any Subsidiary or use any of its assets for payment, purchase, conversion, redemption, retention, acquisition or retirement of any kind beneficial interest in the Borrower or character, whether in cash, property set aside or securities (other than securities reserve assets for sinking or like funds for any of the Company as reorganized or readjusted or securities of the Company or foregoing purposes, make any other corporation provided for distribution by a plan reduction of reorganization capital or readjustment otherwise in respect of any beneficial interest in the payment of Borrower or permit any Subsidiary which is subordinate, at least not a wholly-owned Subsidiary so to the extent provided in this Article Fifteen with respect to the Subordinated Securities, to the payment of all indebtedness of the nature of Senior Indebtedness, provided that the rights of the holders of the Senior Indebtedness are not altered by such reorganization do or readjustment) shall be received by the Holders of Subordinated Securities or by the Trustee for their benefit in connection with pay any proceedings or sale referred to in subsection (a) of Section 15.02 before all Senior Indebtedness is paid in full in money, such payment or distribution shall be paid over to the trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or other Person making payment or distribution of assets of the Company, if any, otherwise such payment or distribution shall be paid over to the holders of such Senior Indebtedness or their representative or representatives or to the trustee or trustees under any indenture under which any instruments evidencing any of such Senior Indebtedness may have been issued, ratably according to the aggregate amounts remaining unpaid amount on account of the Senior Subordinated Indebtedness held or represented by each, for application to the payment of all Senior Indebtedness remaining unpaid until all such Senior Indebtedness shall have been paid in full in money, after giving effect to any concurrent payment or distribution to the holders of such Senior Indebtedness. From and after the payment in full in money of all Senior Indebtedness, the Holders of Subordinated Securities (together with the holders of any other indebtedness of the Company which is subordinate in right of payment to the payment in full of all Senior Indebtedness, which is not subordinate in right permitted to be paid under the Subordination Agreement; provided, however, that so long as no Default or Event of payment Default exists, (a) the Borrower shall be permitted to make payments to Stockholders and to redeem or repurchase stock to the extent permitted under Section 5.2.10, (b) subsequent to completion of a Qualified Initial Public Offering and so long as Borrower maintains a ratio of total Indebtedness for Borrowed Money to EBITDA of less than or equal to 1.0:1.0 before and after any such payment, Borrower may make regularly scheduled payments of interest on Subordinated Securities Indebtedness and which by (c) the Borrower may issue its terms grants such right of subrogation capital stock to the holder thereofNew Stockholders pursuant to Section 10.1(e) shall be subrogated of the Recapitalization Agreement which is one of the Related Transaction Documents and may issue its capital stock, up to 10% of Borrower's issued and outstanding capital stock in connection with the Stock Option Plan and, to the rights extent permitted by Section 5.2.3, in connection with Permitted Acquisitions, all so long as no Change of Control exists or results therefrom. Notwithstanding anything to the contrary set forth in this Agreement, the New Stockholders may at any time convert their shares of the holders of Senior Indebtedness to receive payments or distributions of assets or securities of the Company applicable to the Senior Indebtedness until the Subordinated Securities shall be paid Borrower's convertible participating preferred stock in full, and, for the purposes of such subrogation, no such payments or distributions to the holders of Senior Indebtedness of assets or securities, which otherwise would have been payable or distributable to Holders of Subordinated Securities, shall, as between the Company, its creditors other than the holders of Senior Indebtedness and the Holders, be deemed to be a payment by the Company to or on account of the Senior Indebtedness, it being understood that accordance with the provisions of this Article Fifteen are the Borrower's Amended and are intended solely Restated Certificate of Incorporation. (Loan Agreement - Fleet/Convergent) 60 Section 5.2.12. Investments in or to Other Persons. Make or commit to make any Investment in or to any other Person (including, without limitation, any Subsidiary) other than (i) advances to employees for the purpose of defining the relative rights of the Holders, on the one hand, and the holders of the Senior Indebtedness, on the other hand, and nothing contained in this Article Fifteen or elsewhere in this Indenture or business expenses not to exceed $20,000 in the Subordinated Securities is intended aggregate outstanding for any one employee and not to or shall impair as between exceed in the Company, its creditors other than the holders of Senior Indebtedness and the Holders of Subordinated Securities, the obligation of the Company, which is unconditional and absolute, aggregate outstanding at any one time to pay all such employees an amount equal to the Holders product of Subordinated Securities the principal of and interest on the Subordinated Securities as and when the same shall become due and payable in accordance with their terms, or to affect the relative rights of the Holders of Subordinated Securities and creditors of the Company other than the holders of the Senior Indebtedness, nor shall anything herein or therein prevent the Trustee or the Holder of any Subordinated Security from exercising all remedies otherwise permitted by applicable law upon default under this Indenture subject to the rights of the holders of Senior Indebtedness, under Section 15.02, to receive cash, property or securities of the Company otherwise payable or deliverable to the Holders of the Subordinated Securities. Upon any distribution or payment in connection with any proceedings or sale referred to in subsection (a) the number of employees of Borrower and/or any Subsidiaries and (b) $1,000, (ii) other employee loans not to exceed $100,000 in the aggregate outstanding at any one time to all such employees (excluding, solely during the period described in Section 15.025.1.24, any amounts up to a maximum of $2,000,000 principal amount owing under the TrusteeClosing Date loan to Glenx X. Xxxxxxxxxx, subject Xx.), (iii) Cash Equivalent Investments, (iv) Permitted Acquisitions, (v) Investments in accounts, contract rights and chattel paper (as between defined in the Trustee Uniform Commercial Code) and notes receivable, arising or acquired in the Holders ordinary course of Subordinated Securities to the business or as permitted by other provisions of Section 1.04 hereof, this Agreement; provided that the Borrower and any Subsidiaries which guaranty the Obligations shall be entitled to rely upon not make Investments in the aggregate in any Subsidiary which is not a certificate guarantor of the liquidating trustee Obligations in excess of $500,000 and (vi) Investments described on Exhibit 5.2.2 or agent or other person making any distribution or payment to the Trustee, the amount of such Senior Indebtedness or the amount payable thereon, the amount or amounts paid or distributed thereon and all other facts pertinent thereto or to this Article Fifteen. In the event that the Trustee determines, in good faith, that further evidence is required with respect to the right of any person as a holder of Senior Indebtedness to participate in any payment or distribution pursuant to this Section 15.03, the Trustee may request such person to furnish evidence to the reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness held by such person, as to the extent to which such person is entitled to participate in such payment or distribution, and as to other facts pertinent to the rights of such person under this Section 15.03, and if such evidence is not furnished, the Trustee may defer any payment to such person pending judicial determination as to the right of such person to receive such payment. The Trustee, however, shall not be deemed to owe any fiduciary duty to the holders of Senior Indebtedness, and shall not be liable to any such holders if it shall in good faith pay over or distribute to Holders of Subordinated Securities or the Company or any other person moneys or assets to which any holders of Senior Indebtedness shall be entitled by virtue of Article Fifteen of this Indenture or otherwise5.2.12.

Payments and Distributions. In the event that, notwithstanding the provisions of Section 15.0214.02, any payment or distribution of assets of the Company of any kind or character, whether in cash, property or securities (other than securities of the Company as reorganized or readjusted or securities of the Company or any other corporation provided for by a plan of reorganization or readjustment the payment of which is subordinate, at least to the extent provided in this Article Fifteen Fourteen with respect to the Subordinated Securities, to the payment of all indebtedness of the nature of Senior Indebtedness, provided that the rights of the holders of the Senior Indebtedness are not altered by such reorganization or readjustment) shall be received by the Holders of Subordinated Securities or by the Trustee for their benefit in connection with any proceedings or sale referred to in subsection (a) of Section 15.02 14.02 before all Senior Indebtedness is paid in full in money, such payment or distribution shall be paid over to the trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or other Person making payment or distribution of assets of the Company, if any, otherwise such payment or distribution shall be paid over to the holders of such Senior Indebtedness or their representative or representatives or to the trustee or trustees under any indenture under which any instruments evidencing any of such Senior Indebtedness may have been issued, ratably according to the aggregate amounts remaining unpaid on account of the Senior Indebtedness held or represented by each, for application to the payment of all Senior Indebtedness remaining unpaid until all such Senior Indebtedness shall have been paid in full in money, after giving effect to any concurrent payment or distribution to the holders of such Senior Indebtedness. From and after the payment in full in money of all Senior Indebtedness, the Holders of Subordinated Securities (together with the holders of any other indebtedness of the Company which is subordinate in right of payment to the payment in full of all Senior Indebtedness, which is not subordinate in right of payment to the Subordinated Securities and which by its terms grants such right of subrogation to the holder thereof) shall be subrogated to the rights of the holders of Senior Indebtedness to receive payments or distributions of assets or securities of the Company applicable to the Senior Indebtedness until the Subordinated Securities shall be paid in full, and, for the purposes of such subrogation, no such payments or distributions to the holders of Senior Indebtedness of assets or securities, which otherwise would have been payable or distributable to Holders of Subordinated Securities, shall, as between the Company, its creditors other than the holders of Senior Indebtedness and the Holders, be deemed to be a payment by the Company to or on account of the Senior Indebtedness, it being understood that the provisions of this Article Fifteen Fourteen are and are intended solely for the purpose of defining the relative rights of the Holders, on the one hand, and the holders of the Senior Indebtedness, on the other hand, and nothing contained in this Article Fifteen Fourteen or elsewhere in this Indenture or in the Subordinated Securities is intended to or shall impair as between the Company, its creditors other than the holders of Senior Indebtedness and the Holders of Subordinated SecuritiesHolders, the obligation of the Company, which is unconditional and absolute, to pay to the Holders of Subordinated Securities the principal of and interest on the Subordinated Securities as and when the same shall become due and payable in accordance with their terms, or to affect the relative rights of the Holders of Subordinated Securities and creditors of the Company other than the holders of the Senior Indebtedness, nor shall anything herein or therein prevent the Trustee or the Holder of any Subordinated Security from exercising all remedies otherwise permitted by applicable law upon default under this Indenture subject to the rights of the holders of Senior Indebtedness, under Section 15.0214.02, to receive cash, property or securities of the Company otherwise payable or deliverable to the Holders of the Subordinated Securities. Upon any distribution or payment in connection with any proceedings or sale referred to in subsection (a) of Section 15.0214.02, the Trustee, subject as between the Trustee and the Holders of Subordinated Securities to the provisions of Section 1.04 hereof, shall be entitled to rely upon a certificate of the liquidating trustee or agent or other person making any distribution or payment to the TrusteeTrustee for the purpose of ascertaining the holders of Senior Indebtedness entitled to participate in such payment or distribution, the amount of such Senior Indebtedness or the amount payable thereon, the amount or amounts paid or distributed thereon and all other facts pertinent thereto or to this Article FifteenFourteen. In the event that the Trustee determines, in good faith, that further evidence is required with respect to the right of any person as a holder of Senior Indebtedness to participate in any payment or distribution pursuant to this Section 15.0314.03, the Trustee may request such person to furnish evidence to the reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness held by such person, as to the extent to which such person is entitled to participate in such payment or distribution, and as to other facts pertinent to the rights of such person under this Section 15.0314.03, and if such evidence is not furnished, the Trustee may defer any payment to such person pending judicial determination as to the right of such person to receive such payment. 71 The Trustee, however, shall not be deemed to owe any fiduciary duty to the holders of Senior Indebtedness, and shall not be liable to any such holders if it shall in good faith pay over or distribute to Holders of Subordinated Securities or the Company or any other person moneys or assets to which any holders of Senior Indebtedness shall be entitled by virtue of Article Fifteen Fourteen of this Indenture or otherwise.

Payments and Distributions. In the event that, notwithstanding the provisions of Section 15.02, any payment or distribution of assets of the Company of any kind or character, whether in cash, property or securities (other than securities of the Company as reorganized or readjusted or securities of the Company or any other corporation provided for by a plan of reorganization or readjustment the payment of which is subordinate, at least to the extent provided in this Article Fifteen with respect to the Subordinated Securities, to the payment of all indebtedness of the nature of Senior Indebtedness, provided that the rights of the holders of the Senior Indebtedness are not altered by such reorganization or readjustment) shall be received by the Holders of Subordinated Securities or by the Trustee (except for any amounts due to the Trustee under Section 6.06 hereof) for their benefit in connection with any proceedings or sale referred to in subsection (a) of Section 15.02 before all Senior Indebtedness is paid in full in money, such payment or distribution shall be paid over to the trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or other Person making payment or distribution of assets of the Company, if any, otherwise such payment or distribution shall be paid over to the holders of such Senior Indebtedness or their representative or representatives or to the trustee or trustees under any indenture under which any instruments evidencing any of such Senior Indebtedness may have been issued, ratably according to the aggregate amounts remaining unpaid on account of the Senior Indebtedness held or represented by each, for application to the payment of all Senior Indebtedness remaining unpaid until all such Senior Indebtedness shall have been paid in full in money, after giving effect to any concurrent payment or distribution to the holders of such Senior Indebtedness. From and after the payment in full in money of all Senior Indebtedness, the Holders of Subordinated Securities (together with the holders of any other indebtedness of the Company which is subordinate in right of payment to the payment in full of all Senior Indebtedness, which is not subordinate in right of payment to the Subordinated Securities and which by its terms grants such right of subrogation to the holder thereof) shall be subrogated to the rights of the holders of Senior Indebtedness to receive payments or distributions of assets or securities of the Company applicable to the Senior Indebtedness until the Subordinated Securities shall be paid in full, and, for the purposes of such subrogation, no such payments or distributions to the holders of Senior Indebtedness of assets or securities, which otherwise would have been payable or distributable to Holders of Subordinated Securities, shall, as between the Company, its creditors other than the holders of Senior Indebtedness and the Holders, be deemed to be a payment by the Company to or on account of the Senior Indebtedness, it being understood that the provisions of this Article Fifteen are and are intended solely for the purpose of defining the relative rights of the Holders, on the one hand, and the holders of the Senior Indebtedness, on the other hand, and nothing contained in this Article Fifteen or elsewhere in this Indenture or in the Subordinated Securities is intended to or shall impair as between the Company, its creditors other than the holders of Senior Indebtedness and the Holders of Subordinated Securities, the obligation of the Company, which is unconditional and absolute, to pay to the Holders of Subordinated Securities the principal of and interest on the Subordinated Securities as and when the same shall become due and payable in accordance with their terms, or to affect the relative rights of the Holders of Subordinated Securities and creditors of the Company other than the holders of the Senior Indebtedness, nor shall anything herein or therein prevent the Trustee or the Holder of any Subordinated Security from exercising all remedies otherwise permitted by applicable law upon default under this Indenture subject to the rights of the holders of Senior Indebtedness, under Section 15.02, to receive cash, property or securities of the Company otherwise payable or deliverable to the Holders of the Subordinated Securities. Upon any distribution or payment in connection with any proceedings or sale referred to in subsection (a) of Section 15.02, the Trustee, subject as between the Trustee and the Holders of Subordinated Securities to the provisions of Section 1.04 hereof, shall be entitled to rely upon a certificate of the liquidating trustee or agent or other person making any distribution or payment to the Trustee, the amount of such Senior Indebtedness or the amount payable thereon, the amount or amounts paid or distributed thereon and all other facts pertinent thereto or to this Article Fifteen. In the event that the Trustee determines, in good faith, that further evidence is required with respect to the right of any person as a holder of Senior Indebtedness to participate in any payment or distribution pursuant to this Section 15.03, the Trustee may request such person to furnish evidence to the reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness held by such person, as to the extent to which such person is entitled to participate in such payment or distribution, and as to other facts pertinent to the rights of such person under this Section 15.03, and if such evidence is not furnished, the Trustee may defer any payment to such person pending judicial determination as to the right of such person to receive such payment. The Trustee, however, shall not be deemed to owe any fiduciary duty to the holders of Senior Indebtedness, and shall not be liable to any such holders if it shall in good faith pay over or distribute to Holders of Subordinated Securities or the Company or any other person moneys or assets to which any holders of Senior Indebtedness shall be entitled by virtue of Article Fifteen of this Indenture or otherwise.