Common use of Restricted Payments in Respect of Equity Clause in Contracts

Restricted Payments in Respect of Equity. Neither the Parent nor the Borrower will, nor will they permit any Consolidated Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, except: (i) the Parent, the Borrower and any Consolidated Subsidiary may declare and pay dividends with respect to its capital stock payable solely in additional shares of its common stock; (ii) so long as no Default or Event of Default has occurred and is continuing, the Borrower and the Consolidated Subsidiaries may declare and pay dividends ratably with respect to their capital stock and LuxHoldCo, LuxFinCo and LuxSub and may make Restricted Payments in connection with the Luxembourg Equity Arrangements; provided that, the Borrower may not declare or pay any dividends, if, after giving effect to the payment of such dividend, Excess Availability will be less than $18,000,000; (iii) any purchase, repurchase, retirement, defeasance or other acquisition or retirement for value of Equity Interests of the Parent or Holdings made by exchange for, or out of the proceeds of the substantially concurrent sale of, Equity Interests of the Parent or Holdings (other than Disqualified Stock and other than Equity Interests issued or sold to the Borrower or a Consolidated Subsidiary or an employee stock ownership plan or other trust established by the Borrower or any of the Consolidated Subsidiaries); (iv) any Consolidated Subsidiary that is not a Wholly-Owned Subsidiary may pay cash dividends to its shareholders, members or partners generally, so long as the Parent, the Borrower or the Consolidated Subsidiary that owns the Equity Interests in such Consolidated Subsidiary paying such dividends receives at least its proportionate share thereof; (v) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, U.S. Holdings, Holdings and Parent may declare and pay dividends or make other distributions to purchase or redeem Equity Interests of U.S. Holdings, Holdings and Parent (including related stock appreciation rights or similar securities) held by or for the benefit of then present or former officers or employees of U.S. Holdings, Holdings, Parent or any of their Consolidated Subsidiaries or upon such Person’s death, disability, retirement or termination of employment or under the terms of any benefit plan or agreement relating to such shares of stock or related rights or to pay or redeem any notes issued by U.S. Holdings, Holdings and Parent in connection with such repurchases or redemptions; provided that the aggregate amount of such cash purchases or redemptions shall not exceed $1,000,000 in any fiscal year and $5,000,000 in the aggregate since the Closing Date; (vi) so long as no Default or Event of Default has occurred and is continuing, or would result therefrom, the payment of the Permitted Management Fees; (vii) Permitted Sponsor Transaction Expenses; (viii) any payment with respect to the transactions permitted by Section 11.9(o); (ix) without duplication of the payments made in compliance with Section 11.8(b)(ii) hereof in lieu of Restricted Payments, so long as no Event of Default shall have occurred and be continuing or shall be caused thereby and Parent has delivered to Agent the documents set forth in Section 10.1(a) hereof in respect of the fiscal year prior to the fiscal year in which such Restricted Payment is to be made and written notice of any proposed dividend or distribution thirty (30) days prior thereto, Parent may make Restricted Payments during any fiscal year in an aggregate amount not to exceed the sum of 50% of Parent’s Consolidated Net Income for the immediately preceding fiscal year; provided that if in any fiscal year the Parent does not utilize such amount to make dividends and distributions, Parent may carry forward such amount and utilize such amount to make Restricted Payments in the immediately succeeding fiscal year, up to an amount not to exceed $5,000,000 (which amount shall be deemed to be the amount last paid in such subsequent fiscal year); provided further that (x) for the thirty (30) day period immediately prior to the date of any such Restricted Payment described in this sub-clause (ix), Excess Availability shall be at least $18,000,000 and (y) immediately after giving effect to any such Restricted Payments, Excess Availability shall be at least $18,000,000; provided in each case that if the applicable test is not satisfied with respect to the full amount of such proposed Restricted Payments, such Restricted Payments shall be permitted in such lesser amount as shall satisfy the applicable test; and (x) any payment necessary to effectuate an Investment in an Unrestricted Subsidiary permitted by Section 11.5(o) or Section 11.5(q).

Restricted Payments in Respect of Equity. Neither the Parent nor the Borrower Borrowers will, nor will they permit any Consolidated Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, except: (i) the Parent, the Borrower Borrowers and any Consolidated Subsidiary may declare and pay dividends with respect to its capital stock payable solely in additional shares of its common stock; (ii) so long as no Default or Event of Default has occurred and is continuing, the Borrower Borrowers and the Consolidated Subsidiaries may declare and pay dividends ratably with respect to their capital stock and LuxHoldCo, LuxFinCo and LuxSub and may make Restricted Payments in connection with the Luxembourg Equity Arrangements; provided that, the Borrower may not declare or pay any dividends, if, after giving effect to the payment of such dividend, Excess Availability will be less than $18,000,000; (iii) any purchase, repurchase, retirement, defeasance or other acquisition or retirement for value of Equity Interests of the Parent or Holdings made by exchange for, or out of the proceeds of the substantially concurrent sale of, Equity Interests of the Parent or Holdings (other than Disqualified Stock and other than Equity Interests issued or sold to the Borrower Borrowers or a Consolidated Subsidiary or an employee stock ownership plan or other trust established by the Borrower Borrowers or any of the Consolidated Subsidiaries); (iv) any Consolidated Subsidiary that is not a Wholly-Wholly Owned Subsidiary may pay cash dividends to its shareholders, members or partners generally, so long as the Parent, the Borrower Borrowers or the Consolidated Subsidiary that owns the Equity Interests in such Consolidated Subsidiary paying such dividends receives at least its proportionate share thereof; (v) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, U.S. Holdings, Holdings and Parent may declare and pay dividends or make other distributions to purchase or redeem Equity Interests of U.S. Holdings, Holdings and Parent (including related stock appreciation rights or similar securities) held by or for the benefit of then present or former officers or employees of U.S. Holdings, Holdings, Parent or any of their Consolidated Subsidiaries or upon such Person’s death, disability, retirement or termination of employment or under the terms of any benefit plan or agreement relating to such shares of stock or related rights or to pay or redeem any notes issued by U.S. Holdings, Holdings and Parent in connection with such repurchases or redemptions; provided that the aggregate amount of such cash purchases or redemptions shall not exceed $1,000,000 in any fiscal year and $5,000,000 in the aggregate since the Closing Date; (vi) so long as no Default or Event of Default has occurred and is continuing, or would result therefrom, the payment of the Permitted Management Fees; (vii) Permitted Sponsor Transaction Expenses; (viii) any payment with respect to the transactions permitted by Section 11.9(o6.08(o); (ix) without duplication of the payments made in compliance with Section 11.8(b)(ii) hereof in lieu of Restricted Payments, so long as no Event of Default shall have occurred and be continuing or shall be caused thereby and Parent has delivered to Agent the documents set forth in Section 10.1(a) hereof in respect of the fiscal year prior to the fiscal year in which such Restricted Payment is to be made and written notice of any proposed dividend or distribution thirty (30) days prior thereto, Parent may make Restricted Payments during any fiscal year in an aggregate amount not to exceed the sum of 50% of Parent’s Consolidated Net Income for the immediately preceding fiscal year; provided that if in any fiscal year the Parent does not utilize such amount to make dividends and distributions, Parent may carry forward such amount and utilize such amount to make Restricted Payments in the immediately succeeding fiscal year, up to an amount not to exceed $5,000,000 (which amount shall be deemed to be the amount last paid in such subsequent fiscal year); provided further that (x) for the thirty (30) day period immediately prior to the date of any such Restricted Payment described in this sub-clause (ix), Excess Availability shall be at least $18,000,000 and (y) immediately after giving effect to any such Restricted Payments, Excess Availability shall be at least $18,000,000; provided in each case that if the applicable test is not satisfied with respect to the full amount of such proposed Restricted Payments, such Restricted Payments shall be permitted in such lesser amount as shall satisfy the applicable test; and (xix) any payment necessary to effectuate an Investment in an Unrestricted Subsidiary permitted by Section 11.5(o6.04(o) or Section 11.5(q6.04(q).

Restricted Payments in Respect of Equity. Neither the Parent nor the Borrower Borrowers will, nor will they permit any Consolidated Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, except: (i) the Parent, the Borrower Borrowers and any Consolidated Subsidiary may declare and pay dividends make Restricted Payments with respect to its capital stock payable solely in additional shares of its common stock; (ii) so long as no Default or Event of Default has occurred and is continuing, the Borrower Borrowers and the Consolidated Subsidiaries may declare and pay dividends make Restricted Payments ratably with respect to their capital stock and LuxHoldCothe capital stock of Lux Borrower, LuxFinCo and LuxSub and may make Restricted Payments in connection with the Luxembourg Equity Arrangements; provided that, the Borrower may not declare or pay any dividends, if, after giving effect to the payment of such dividend, Excess Availability will be less than $18,000,000; (iii) any purchase, repurchase, retirement, defeasance or other acquisition or retirement for value of Equity Interests of the Parent or Holdings made by exchange for, or out of the proceeds of the substantially concurrent sale of, Equity Interests of the Parent or Holdings (other than Disqualified Stock and other than Equity Interests issued or sold to the Borrower Borrowers or a Consolidated Subsidiary or an employee stock ownership plan or other trust established by the Borrower Borrowers or any of the Consolidated Subsidiaries); (iv) any Consolidated Subsidiary that is not a Wholly-Wholly Owned Subsidiary may pay cash dividends to its shareholders, members or partners generally, so long as the Parent, the Borrower Borrowers or the Consolidated Subsidiary that owns the Equity Interests in such Consolidated Subsidiary paying such dividends receives at least its proportionate share thereof; (v) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, U.S. HoldingsBorrowers, Holdings and Parent or any of their Subsidiaries may declare and pay dividends or make other distributions to purchase or redeem Equity Interests of U.S. HoldingsBorrowers, Holdings and Parent or any of their Subsidiaries (including related stock appreciation rights or similar securities) held by or for the benefit of then present or former officers or employees of U.S. Holdings, HoldingsBorrowers, Parent or any of their Consolidated Subsidiaries or (A) upon such Person’s death, disability, retirement or termination of employment or (B) under the terms of any benefit plan or agreement relating to such shares of stock or related rights or to pay or redeem any notes issued by U.S. HoldingsBorrowers, Holdings and Parent or any of their Subsidiaries in connection with such repurchases or redemptions; provided that the aggregate amount of such cash purchases or redemptions shall not exceed $1,000,000 2,500,000 in any fiscal year and $5,000,000 10,000,000 in the aggregate since the Closing Date; (vi) so long as no Default or Event of Default has occurred and is continuing, or would result therefrom, the payment of the Permitted Management Fees; (vii) Permitted Sponsor Transaction Expenses; (viii) any payment with respect to the transactions permitted by Section 11.9(o6.08(o); (ix) without duplication of the payments made in compliance with Section 11.8(b)(ii) hereof in lieu of Restricted Payments, so long as no Event of Default shall have occurred and be continuing or shall be caused thereby and Parent has delivered to Agent the documents set forth in Section 10.1(a) hereof in respect of the fiscal year prior to the fiscal year in which such Restricted Payment is to be made and written notice of any proposed dividend or distribution thirty (30) days prior thereto, Parent may make Restricted Payments during any fiscal year in an aggregate amount not to exceed the sum of 50% of Parent’s Consolidated Net Income for the immediately preceding fiscal year; provided that if in any fiscal year the Parent does not utilize such amount to make dividends and distributions, Parent may carry forward such amount and utilize such amount to make Restricted Payments in the immediately succeeding fiscal year, up to an amount not to exceed $5,000,000 (which amount shall be deemed to be the amount last paid in such subsequent fiscal year); provided further that (x) for the thirty (30) day period immediately prior to the date of any such Restricted Payment described in this sub-clause (ix), Excess Availability shall be at least $18,000,000 and (y) immediately after giving effect to any such Restricted Payments, Excess Availability shall be at least $18,000,000; provided in each case that if the applicable test is not satisfied with respect to the full amount of such proposed Restricted Payments, such Restricted Payments shall be permitted in such lesser amount as shall satisfy the applicable test; and (x) any payment necessary to effectuate an Investment in an Unrestricted Subsidiary permitted by Section 11.5(o6.04(o) or Section 11.5(q6.04(q); (x) after the Closing Date Parent may make a one-time repurchase of Equity Interests of Parent from the Management Investors in an aggregate amount of not more than $30,000,000; and (xi) after the receipt of any Net Proceeds by or on behalf of the Parent, the Borrowers or any Subsidiary in respect of any Prepayment Event of the type referred to in clause (c) of the definition thereof, Parent may make dividends or distributions in an amount not exceeding the excess Net Proceeds in respect of such Prepayment Event over the amount of such Net Proceeds reinvested in accordance with the terms hereof or required to be used to prepay the Term Loans and Incremental Term Loans in accordance with Section 2.10(b).