Common use of Limitations on Dividends and Distributions Clause in Contracts

Limitations on Dividends and Distributions. Declare or pay any dividends upon any of its Capital Stock; purchase, redeem, retire or otherwise acquire, directly or indirectly, any shares of its Capital Stock, or make any distribution of cash, property or assets among the holders of shares of its Capital Stock, or make any change in its capital structure which such change in its capital structure could reasonably be expected to have a Material Adverse Effect; provided that: (a) the Borrower or any Subsidiary may pay dividends in shares of its own Capital Stock; (b) any Subsidiary may pay cash dividends to the Borrower or any other Subsidiary that is its parent; (c) so long as no Default or Event of Default shall have occurred and be continuing, at the time thereof, the Borrower may purchase, redeem, retire, defease or otherwise acquire shares of its Capital Stock with the proceeds received contemporaneously from the issue of new shares of its Capital Stock with equal or inferior voting powers, designations, preferences and rights; (d) so long as no Default or Event of Default shall have occurred and be continuing, at the time thereof, the Borrower may purchase (with cash or notes) Capital Stock of the Borrower from former directors or employees of the Borrower or its Subsidiaries, their estates, spouses or former spouses in connection with the termination of such employee's employment (or such director's directorship); provided that, (i) no such note shall require any payment if such payment or a distribution by the Borrower to make such payment is prohibited by the terms of this Agreement and (ii) the aggregate amount of all payments under this Section 11.6(d) (including payments in respect of any such purchase or any such notes) shall not exceed the sum of (A) $500,000 in any Fiscal Year or $1,000,000 in the aggregate during the term of this Agreement, plus (B) the amount of any cash equity contributions received by the Borrower for the purpose of making such payments and used for such purpose; and (e) any non-Wholly Owned Subsidiary may make pro rata dividends or distributions to holders of its Capital Stock.

Limitations on Dividends and Distributions. Declare or pay any dividends upon any of its Capital Stockcapital stock or other ownership interests; purchase, redeem, retire or otherwise acquire, directly or indirectly, any shares of its Capital Stockcapital stock or other ownership interests, or make any distribution of cash, property or assets among the holders of shares of its Capital Stockcapital stock or other ownership interests, or make any change in its capital structure which such change in its capital structure could reasonably be expected to have a Material Adverse Effect; provided that: (a) the Borrower or any Restricted Subsidiary may pay dividends in shares of its own Capital Stockcapital stock or other ownership interests; (b) any Restricted Subsidiary may pay cash make dividends or distributions to any Subsidiary Guarantor or to the Borrower or any other Subsidiary that is its parentBorrower; (c) so long as no Default or Event of Default shall have occurred and be continuing, at the time thereof, the Borrower or any Restricted Subsidiary may make any distribution (whether direct or indirect and whether in the form of cash, property, securities or otherwise) to shareholders, employees or other permitted distributees under Borrower’s 1996 Omnibus Plan and other benefit or retirement plans maintained and created by the Borrower, its Restricted Subsidiaries and its Affiliates; (d) the Borrower and its Subsidiaries may pay the cash consideration payable in the ESSI Merger (including any payments in respect of appraisal rights); (e) the Borrower may declare and pay cash dividends to its shareholders in an aggregate amount in any Fiscal Year not to exceed $25,000,000; (f) the Borrower may make cash redemption of Permitted Senior Unsecured Convertible Debt to the extent permitted pursuant to Section 11.10(e)(iv); (g) the Borrower or any Restricted Subsidiary may purchase its capital stock or other ownership interests or options in respect of its capital stock or other ownership interests to the extent that such purchase is made with the Net Cash Proceeds of any offering of equity securities of the Borrower; (h) the Borrower or any Restricted Subsidiary may purchase, redeem, retire, defease retire or otherwise acquire shares of its Capital Stock with the proceeds received contemporaneously from the issue of new shares of its Capital Stock with equal for value any capital stock or inferior voting powers, designations, preferences and rights; (d) so long as no Default or Event of Default shall have occurred and be continuing, at the time thereof, the Borrower may purchase (with cash or notes) Capital Stock of the Borrower from former directors or employees other ownership interests of the Borrower or its Subsidiaries, their estates, spouses any Restricted Subsidiary held by any current or former spouses in connection with officer, director, employee or consultant of the termination Borrower or any Restricted Subsidiary (or any permitted transferees of such employee's employment (persons) pursuant to any equity subscription agreement, stock option agreement, shareholders’ agreement or such director's directorship)similar agreement; provided thatthat the aggregate price paid for all such repurchased, redeemed, acquired or retired capital stock or other ownership interests may not exceed $5,000,000 in any twelve-month period, provided, that the Borrower may carry forward and make in a subsequent twelve-month period, in addition to the amounts permitted for such twelve-month period, the amount of such repurchase, redemptions or other acquisitions or retirements for value permitted to have been made but not made in any preceding twelve-month period up to a maximum of $10,000,000 in any twelve-month period; (i) no such note shall require any payment if such payment or a distribution by the Borrower to or any Restricted Subsidiary may make such payment is prohibited by the terms of this Agreement and (ii) the aggregate amount of all payments under this Section 11.6(d) (including cash payments in respect lieu of any such purchase or any such notes) shall the issuance of fractional shares in an amount not to exceed the sum of (A) $500,000 10,000,000 in any Fiscal Year or $1,000,000 in the aggregate during the term of this Agreement, plus (B) the amount of any cash equity contributions received by the Borrower for the purpose of making such payments and used for such purposetwelve-month period; and (ej) any non-Wholly Owned Subsidiary may make pro rata dividends the repurchase of capital stock or distributions other ownership interests deemed to holders occur upon the exercise of its Capital Stockstock options to the extent such capital stock or other ownership interest represents a portion of the exercise price of those stock options.

Limitations on Dividends and Distributions. Declare or pay any dividends upon any of its Capital Stock; purchase, redeem, retire or otherwise acquire, directly or indirectly, any shares of its Capital Stock, or make any distribution of cash, property or assets among the holders of shares of its Capital Stock, or make any change in its capital structure which such change in its capital structure could reasonably be expected to have (collectively, a Material Adverse Effect"RESTRICTED PAYMENT"); provided PROVIDED that: (a) the Borrower Holdings or any Subsidiary may pay dividends in shares of its own Capital Stock; (b) any Subsidiary may pay cash dividends to the Borrower or any other another Subsidiary that is its parent; (c) a Credit Party and, so long as no Default or Event of Default shall have has occurred and be or is continuing, at the time thereofto other equity holders of such Subsidiary on a pro rata basis. (c) so long as no Event of Default exists, the Borrower may purchase, redeem, retire, defease or otherwise acquire shares of its Capital Stock with make payments in the proceeds received contemporaneously from amounts and at the issue of new shares of its Capital Stock with equal or inferior voting powers, designations, preferences and rightsrates specified in the Management Agreement; (d) the Borrower may make payments to Holdings, and Holdings may make payments to any direct or indirect parent of Holdings, to pay franchise taxes, directors fees and reasonable accounting, legal and administrative expenses of Holdings and such parents when due, in an aggregate amount not to exceed $1,000,000 per annum; (e) for so long as the Borrower is a member of a group filing a consolidated or combined tax return with Holdings or any direct or indirect parent of Holdings, the Borrower may make payments to Holdings and Holdings may make payments to such Person in respect of an allocable portion of the tax liabilities of such group that is attributable to Holdings, the Borrower or their Subsidiaries (limited, in the case of Holdings, to taxes attributable to its ownership of the Borrower) ("TAX PAYMENTS"). The Tax Payments shall not exceed the lesser of (i) the amount of the relevant tax (including any penalties and interest) that the Borrower would owe if the Borrower were filing a separate tax return (or a separate consolidated or combined return with its Subsidiaries that are members of the consolidated or combined group), taking into account any carryovers and carrybacks of tax attributes (such as net operating losses) of the Borrower and such Subsidiaries from other taxable years and (ii) the net amount of the relevant tax that Holdings or such Person actually owes to the appropriate taxing authority. Any Tax Payments received from the Borrower shall be paid over to the appropriate taxing authority within 30 days of Holdings' or any direct or indirect parent of Holdings' receipt of such Tax Payments or refunded to the Borrower; (f) if no Default or Event of Default shall have occurred exist or would occur after giving effect thereto, any Credit Party may make any Restricted Payments not otherwise permitted by this Section, not to exceed $2,000,000 in any fiscal year of Holdings and $10,000,000 in the aggregate after the Effective Date; PROVIDED, that any amount not utilized in a previous fiscal year may be continuing, at utilized in the time thereof, immediately succeeding fiscal year; (g) the Borrower may purchase repurchase, redeem, or otherwise acquire for value any Capital Stock of the Borrower, and the Borrower may make distributions, loans and advances to Holdings and Holdings may make distributions, loans and advances to any direct or indirect parent to enable the repurchase, redemption or other acquisition or retirement for value of any Capital Stock of Holdings, or any direct or indirect parent of Holdings, in each case, held by any current or former officer, director, consultant or employee of Holdings or any of its Subsidiaries (with or Heirs or other permitted transferees thereof); PROVIDED that the aggregate price paid for all such repurchased, redeemed, acquired or retired Capital Stock may not exceed $1.5 million in any calendar year; PROVIDED, FURTHER that the Borrower may carry over and make in subsequent calendar years, in addition to the amounts permitted for such calendar year, the amount of such purchases, redemptions or other acquisitions or retirements for value permitted to have been made but not made in any preceding calendar year up to a maximum of $3.0 million in any calendar year; PROVIDED FURTHER that such amount in any calendar year may be increased by an amount not to exceed (1) the net cash or notes) proceeds from the sale of Capital Stock of the Borrower from former (or Holdings or any direct or indirect parent of Holdings to the extent such net cash proceeds are contributed to the common equity of Holdings) to employees, officers, directors or employees consultants of Holdings and its Subsidiaries that occurs after the Borrower Effective Date (to the extent the cash proceeds from the sale of such Capital Stock have not otherwise been applied to the payment of Restricted Payments) plus (2) the cash proceeds of key man life insurance policies received by Holdings and its Subsidiaries after the Effective Date less any amounts previously applied to the payment of Restricted Payments pursuant to this clause (g); PROVIDED FURTHER that cancellation of Indebtedness owing to Holdings or any of its SubsidiariesSubsidiaries from employees, their estatesofficers, spouses directors and consultants of Holdings or former spouses any of its Subsidiaries in connection with the termination repurchase of Capital Stock of the Borrower, Holdings or any direct or indirect parent from such employee's employment Persons will not be deemed to constitute a Restricted Payment for purposes of this Section. (or such director's directorship); provided that, h) there shall be permitted hereunder (i) no the repurchase of Capital Stock deemed to occur upon the exercise of options, warrants or other convertible securities to the extent such note shall require any payment if such payment Capital Stock represent a portion of the exercise price of those options, warrants or a distribution by the Borrower to make such payment is prohibited by the terms of this Agreement other convertible securities and (ii) cash payments in lieu of the aggregate amount issuance of all fractional shares in connection with the exercise of options, warrants, or other convertible securities; (i) Holdings and the Borrower may make payments under this Section 11.6(d) in connection with or as a result of the Acquisition (including including, without limitation, payments in respect of any such purchase or any such notesEarnouts) shall not exceed to the sum of (A) $500,000 in any Fiscal Year or $1,000,000 in the aggregate during the term of this Agreement, plus (B) the amount of any cash equity contributions received extent contemplated by the Borrower for the purpose of making such payments and used for such purpose; andAcquisition Documents; (ej) any non-Wholly Owned Subsidiary Holdings and the Borrower may make pro rata dividends Restricted Payments in exchange for, or distributions out of the net proceeds of the substantially concurrent sale (other than to holders of its a Subsidiary) of, other Capital Stock. (k) On the Effective Date, in connection with the redemption of equity interests in Target from certain existing shareholders, Holdings and the Borrower may cancel up to $1.0 million of indebtedness of such shareholders owed to the Credit Parties.

Limitations on Dividends and Distributions. Declare or pay any dividends upon any of its Capital Stockcapital stock or any other ownership interests; purchase, redeem, retire or otherwise acquire, directly or indirectly, any shares of its Capital Stockcapital stock or other ownership interests, or make any distribution of cash, property or assets among the holders of shares of its Capital Stockcapital stock or other ownership interests, or make any change in its capital structure which such change in its capital structure could reasonably be expected to have a Material Adverse Effect; provided thatstructure, except: (a) the Borrower or any Subsidiary may pay dividends in shares of its own Capital Stockcapital stock, membership interests, or other ownership units; (b) any Subsidiary may pay cash dividends or dividends in property to the Borrower or any other Subsidiary that is to its parentparent Subsidiary; (c) so long as no Default or Event of Default shall have has occurred or would be caused thereby, and be continuing, at the time thereofBorrower is in pro forma compliance with the covenants set forth in Article X hereof, the Borrower may purchase, redeem, retire, defease or otherwise acquire redeem and repurchase shares of its Capital Stock with stock pursuant to a repurchase program authorized from time to time by its Board of Directors and/or declare and make cash dividend payments, in an aggregate amount over the proceeds received contemporaneously from term of the issue Credit Facility (for all such redemptions, repurchases and dividends) not to exceed Ten Million Dollars ($10,000,000) plus fifty percent (50%) of new shares of its Capital Stock with equal Cumulative Net Income; provided that all such stock so repurchased shall be immediately retired by the Borrower and shall not be retained as treasury stock (or inferior voting powers, designations, preferences and rights;any equivalent thereof); and (d) so long as no Default or Event of Default shall have occurred and be continuing, at the time thereof, the Borrower may purchase accept shares of its stock owned by the applicable optionee or employee (with cash or notesi) Capital Stock in payment of the Borrower from former directors exercise price of stock options or (ii) to satisfy tax withholding requirements in respect of equity incentives in the form of restricted stock awards and stock options, in each case, granted to employees of the Borrower or its Subsidiaries, their estates, spouses or former spouses in connection with Subsidiaries by the termination Borrower’s board of such employee's employment (or such director's directorship); provided that, (i) no such note shall require any payment if such payment directors or a distribution by the Borrower to make such payment is prohibited by the terms of this Agreement and (ii) the aggregate amount of all payments under this Section 11.6(d) (including payments in respect of any such purchase or any such notes) shall not exceed the sum of (A) $500,000 in any Fiscal Year or $1,000,000 in the aggregate during the term of this Agreement, plus (B) the amount of any cash equity contributions received by the Borrower for the purpose of making such payments and used for such purpose; and (e) any non-Wholly Owned Subsidiary may make pro rata dividends or distributions to holders of its Capital Stockcommittee thereof.

Limitations on Dividends and Distributions. Declare or pay any dividends upon any of its Capital StockStock or other equity interests; purchase, redeem, retire or otherwise acquire, directly or indirectly, any shares of its Capital Stock, Stock or other equity interests; return capital of the Borrowers to the Parent; or make any distribution of cash, property or assets among the holders of shares of its Capital Stock, Stock or make other payments or distributions to any change Affiliate of any Credit Party or any of its Subsidiaries, in each case with respect to its Capital Stock or in its capital structure which such change in its capital structure could reasonably be expected to have a Material Adverse Effectcapacity as holder of Capital Stock; provided that: that (a) each Credit Party may make dividends payable solely in the Borrower or any Subsidiary may pay dividends in shares same class of its own Capital Stock; Stock of such Person, (b) any Subsidiary each Credit Party may pay cash make dividends or other distributions payable to the Borrower or any other Subsidiary that is its parent; Borrowers and (c) so long as if no Default or Event of Default shall have has occurred and be continuing, at is continuing nor would occur as a result thereof (i) the time thereofBorrowers may make payments to the Parent to pay (A) corporate overhead or administrative costs in an aggregate amount not to exceed $150,000 during any fiscal year and (B) amounts necessary to pay liquidated damages payable by the Parent as a result of a Registration Default (as defined in the Warrant Registration Rights Agreement dated as of the Closing Date among the Parent and the initial purchasers named therein and the Note Registration Rights Agreement dated as of the Closing Date among the Parent, the Borrower subsidiary guarantors named therein and the initial purchasers named therein) such amounts not to exceed $1,000,000 in the aggregate, (ii) a Credit Party may purchase, redeem, retire, defease or otherwise acquire repurchase shares of its Capital Stock with pursuant to the proceeds received contemporaneously from the issue exercise of new shares rights of its Capital Stock with equal or inferior voting powers, designations, preferences and rights; (d) so long as no Default or Event of Default shall have occurred and be continuing, at the time thereof, the Borrower may purchase (with cash or notes) Capital Stock of the Borrower from former directors or employees of the Borrower or its Subsidiaries, their estates, spouses or former spouses first refusal granted in connection with the termination a proposed sale of such employee's employment (or Capital Stock by an option-holder who has exercised stock options pursuant to an option plan approved by the board of directors of such director's directorship); provided thatCredit Party in an aggregate amount not to exceed $3,000,000 during any fiscal year, (iiii) a Credit Party may make payments as required pursuant to the contracts set forth on Schedule 9.9 as in effect on the Closing Date and in the amounts stated on such Schedule, (iv) the Borrowers may make distributions to the Parent to make regularly scheduled payments of interest on Permitted Parent Debt; provided, however, that no such note distributions shall require any payment if such payment or a distribution by be permitted hereunder with respect to interest obligations relating to the Borrower Indebtedness referred to make such payment is prohibited by the terms of this Agreement and in clause (ii) of the aggregate amount definition of Permitted Parent Debt Documents until the depletion in full of all payments under this Section 11.6(d) (including payments amounts deposited in the Interest Escrow Account in respect of such Indebtedness, (v) the Company may dividend or distribute shares of Horizon Telcom, Inc. that it owns to the Parent and the Parent may dividend or distribute such shares of Horizon Telcom, Inc. to its shareholders and (vi) at any such purchase or any such notestime prior to April 30, 2001, the Parent may redeem its Series A-1 Convertible Preferred Capital Stock in an aggregate amount not to exceed $86,000,000 pursuant to Article 4, Subpart C, Subsection F(2)(i) shall of the Parent's Amended and Restated Articles of Incorporation with proceeds of an initial public offering of the Parent's Capital Stock in an aggregate amount yielding proceeds of not exceed the sum of (A) less than $500,000 in any Fiscal Year or $1,000,000 86,000,000 in the aggregate during the term of this Agreement, plus (B) the amount of any cash equity contributions received by the Borrower for the purpose of making such payments and used for such purpose; and (e) any non-Wholly Owned Subsidiary may make pro rata dividends or distributions to holders of its Capital Stockaggregate.

Limitations on Dividends and Distributions. Declare or pay any dividends upon any of its Capital Stock; purchase, redeem, retire or otherwise acquire, directly or indirectly, any shares of its Capital Stock, or make any distribution of cash, property or assets among the holders of shares of its Capital Stock, or make any change in its capital structure which such change in its capital structure could reasonably be expected to have (collectively, a Material Adverse Effect“Restricted Payment”); provided that: (a) the Borrower Holdings or any Subsidiary may pay dividends in shares of its own Capital Stock; (b) any Subsidiary may pay cash dividends to the Borrower or any other a Subsidiary of Borrower that is its parenta Credit Party and, so long as no Default or Event of Default has occurred or is continuing, to other equity holders of such Subsidiary on a pro rata basis; (c) so long as no Default or Event of Default shall have occurred and be continuingexists, at the time thereof, the Borrower may purchase(i) make payments in an amount not to exceed in any Fiscal Year the lesser of 2.5% of Borrower’s Consolidated EBITDA for such Fiscal Year and $3,000,000 for Management Fees to the Sponsor and (ii) reimburse the reasonable out-of-pocket reasonable expenses of Sponsor incurred in connection with providing or obtaining management, redeemconsulting, retiremonitoring, defease financial advisory, accounting or otherwise acquire shares other services to or for the benefit of its Capital Stock with the proceeds received contemporaneously from the issue of new shares of its Capital Stock with equal or inferior voting powers, designations, preferences and rightsCredit Parties; (d) Borrower may make payments to Holdings, and Holdings may make payments to any direct or indirect parent of Holdings, to pay franchise taxes, directors fees and reasonable accounting, legal and administrative expenses of Holdings and such parents when due, in an aggregate amount not to exceed $1,000,000 per annum; (e) for so long as no Default Borrower is a member of a group filing a consolidated or Event combined tax return with Holdings or any direct or indirect parent of Default shall have occurred and be continuingHoldings, at the time thereof, the Borrower may purchase (with cash or notes) Capital Stock make payments to Holdings and Holdings may make payments to such Person in respect of an allocable portion of the Borrower from former directors or employees tax liabilities of the such group that is attributable to Holdings, Borrower or their Subsidiaries (limited, in the case of Holdings, to taxes attributable to its Subsidiaries, their estates, spouses or former spouses in connection with ownership of Borrower) (“Tax Payments”). The Tax Payments shall not exceed the termination lesser of such employee's employment (or such director's directorship); provided that, (i) no such note shall require the amount of the relevant tax (including any payment penalties and interest) that Borrower would owe if such payment Borrower were filing a separate tax return (or a distribution by separate consolidated or combined return with its Subsidiaries that are members of the consolidated or combined group), taking into account any carryovers and carrybacks of tax attributes (such as net operating losses) of Borrower to make and such payment is prohibited by the terms of this Agreement Subsidiaries from other taxable years and (ii) the net amount of the relevant tax that Holdings or such Person actually owes to the appropriate taxing authority. Any Tax Payments received from Borrower shall be paid over to the appropriate taxing authority within 30 days of Holdings’ or any direct or indirect parent of Holdings’ receipt of such Tax Payments or refunded to Borrower; (f) if no Event of Default shall exist or would occur after giving effect thereto, Borrower may repurchase, redeem, or otherwise acquire for value any Capital Stock of Borrower, and Borrower may make distributions, loans and advances to Holdings and Holdings may make distributions, loans and advances to any direct or indirect parent to enable the repurchase, redemption or other acquisition or retirement for value of any Capital Stock of Holdings, or any direct or indirect parent of Holdings, in each case, held by any current or former officer, director, consultant or employee of Holdings or any of its Subsidiaries (or Heirs or other permitted transferees thereof); provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Capital Stock may not exceed $1,000,000 in any calendar year; provided, further, that Borrower may carry over and make in subsequent calendar years, in addition to the amounts permitted for such calendar year, the amount of such purchases, redemptions or other acquisitions or retirements for value permitted to have been made but not made in any preceding calendar year up to a maximum of $2,000,000 in any calendar year; provided, further, that such amount in any calendar year may be increased by an amount not to exceed (1) the net cash proceeds from the sale of Capital Stock of Borrower (or Holdings or any direct or indirect parent of Holdings to the extent such net cash proceeds are contributed to the common equity of Holdings) to employees, officers, directors or consultants of Holdings and its Subsidiaries that occurs after the Effective Date (to the extent the cash proceeds from the sale of such Capital Stock have not otherwise been applied to the payment of Restricted Payments) plus (2) the cash proceeds of key man life insurance policies received by Holdings and its Subsidiaries after the Effective Date less any amounts previously applied to the payment of Restricted Payments pursuant to this clause (f); provided, further, that cancellation of Indebtedness owing to Holdings or any of its Subsidiaries from employees, officers, directors and consultants of Holdings or any of its Subsidiaries in connection with the repurchase of Capital Stock of Borrower, Holdings or any direct or indirect parent from such Persons will not be deemed to constitute a Restricted Payment for purposes of this Section. (g) there shall be permitted hereunder (i) the repurchase of Capital Stock deemed to occur upon the exercise of options, warrants or other convertible securities to the extent such Capital Stock represent a portion of the exercise price of those options, warrants or other convertible securities and (ii) cash payments in lieu of the issuance of fractional shares in connection with the exercise of options, warrants, or other convertible securities; (h) the purchase, redemption, acquisition, cancellation or other retirement for value of Capital Stock of any Credit Party to the extent necessary, in the good faith judgment of the board of directors of Borrower, to prevent the loss or secure the renewal or reinstatement of any license, permit or eligibility held by any Credit Party under any applicable law or governmental regulation or the policies of any governmental authority or other regulatory body in an aggregate amount of all payments under this Section 11.6(dnot to exceed $250,000; (i) (including Holdings and Borrower may make payments in respect connection with or as a result of the Acquisition to the extent contemplated by the Acquisition Documents. (j) the redemption, repurchase or other acquisition for value of any Capital Stock of any Foreign Subsidiary that is held by any Person that is not an Affiliate of Borrower to the extent required by applicable laws, rules or regulations; provided that the amount of any such purchase redemptions, repurchases or any such notes) other acquisitions shall not exceed the sum of (A) $500,000 in any Fiscal Year or $1,000,000 in the aggregate 5,000,000 during the term of this Agreement; (k) Holdings and Borrower may make Restricted Payments in exchange for, plus or out of the net proceeds of the substantially concurrent sale (Bother than to a Subsidiary) of, Qualified Capital Stock (other than any Permitted Cure Securities), to the amount extent such proceeds are not required to be applied to the prepayment of Loans in accordance with this Agreement and, in the case of any cash equity contributions received Restricted Payment made by Borrower pursuant to this Section 11.6(k), so long as Borrower’s Consolidated Leverage Ratio is less than 4.0:1.0 on the Borrower for last day of the purpose of making such payments and used for such purposemost recently ended Fiscal Quarter; and (el) any non-Wholly Owned Subsidiary may make pro rata dividends or distributions additional payments by Holdings and its Subsidiaries not otherwise permitted pursuant to holders of its Capital Stockthis Section in an aggregate amount outstanding not to exceed $7,500,000.

Limitations on Dividends and Distributions. Declare or pay any dividends upon any of its Capital Stock; purchase, redeem, retire or otherwise acquire, directly or indirectly, any shares of its Capital Stock, or make any distribution of cash, property or assets among the holders of shares of its Capital Stock, or make any change in its capital structure which such change in its capital structure could reasonably be expected to have a Material Adverse Effect; provided that: (a) the Borrower Company or any Subsidiary may pay dividends in shares of its own Capital Stock; (b) any Subsidiary may pay cash dividends to the Borrower or any other Subsidiary that is its parentBorrowers; (c) so long as no Default or Event of Default shall have has occurred and be is continuing, at or would result therefrom, any Subsidiary of the time thereof, Company may pay cash dividends to the Borrower may purchase, redeem, retire, defease or otherwise acquire Company to permit the Company to make cash dividends and distributions with respect to shares of its Capital Stock with the proceeds received contemporaneously from the issue of new shares of its Capital Stock with equal or inferior voting powers, designations, preferences and rights; (d) so long as no Default or Event of Default shall have occurred and be continuing, at the time thereof, the Borrower may purchase (with cash or notes) Capital Stock common stock of the Borrower from former directors or employees of the Borrower or its Subsidiaries, their estates, spouses or former spouses in connection with the termination of such employee's employment (or such director's directorship)Company; provided that, that (i) no prior to making any such note dividend or distribution, the Company shall require any payment if deliver an Officer’s Compliance Certificate demonstrating, to the reasonable satisfaction of the Administrative Agent, that the Company and its Subsidiaries will be in compliance with each of the financial covenants set forth in Article IX after giving pro forma effect to such payment proposed dividend or a distribution by the Borrower to make such payment is prohibited by the terms of this Agreement distribution, and (ii) the aggregate amount of all payments under such dividends and distributions pursuant to this Section 11.6(d) (including payments in respect of any such purchase or any such notes10.6(c) shall not exceed the sum of (A) $500,000 in 15,000,000 during any Fiscal Year of the Company; (d) any Subsidiary of the Company may pay dividends to the Company to permit the Company to purchase the Company’s common stock or $1,000,000 in common stock options from present or former officers or employees of the Company or any Subsidiary upon the death, disability or termination of employment of such officer or employee; provided, that the aggregate during the term of this Agreement, plus (B) the amount of payments under this clause (c) (net of any cash equity contributions proceeds received by the Borrower for Company and contributed to a Subsidiary of the purpose Company in connection with substantially contemporaneous resales of making such payments and used for such purposeany common stock or common stock options so purchased) shall not exceed $2,000,000; and (e) any non-Wholly Owned Subsidiary of the Company may make pro rata pay dividends or distributions to holders the Company to (i) pay general and administrative expenses incurred in the ordinary course of its Capital Stockbusiness not to exceed $5,000,000 in any fiscal year and (ii) pay any taxes which are due and payable by the Company and the Borrower as part of a consolidated group.

Limitations on Dividends and Distributions. Declare or pay any dividends upon any of its Capital Stock; purchase, redeem, retire or otherwise acquire, directly or indirectly, any shares of its Capital Stock, or make any distribution of cash, property or assets among the holders of shares of its Capital Stock, or make any change in its capital structure which such change in its capital structure could reasonably be expected to have (collectively, a Material Adverse Effect"Restricted Payment"); provided that: (a) the Borrower Holdings or any Subsidiary may pay dividends in shares of its own Capital Stock; (b) any Subsidiary may pay cash dividends to the Borrower or any other another Subsidiary that is its parent; (c) a Credit Party and, so long as no Default or Event of Default shall have has occurred and be or is continuing, at the time thereofto other shareholders of such Subsidiary on a pro rata basis. (c) so long as no Event of Default exists, the Borrower may purchase, redeem, retire, defease or otherwise acquire shares of its Capital Stock with make payments in the proceeds received contemporaneously from amounts and at the issue of new shares of its Capital Stock with equal or inferior voting powers, designations, preferences and rightsrates specified in the Management Agreement; (d) the Borrower may make payments to Holdings, and Holdings may make payments to any direct or indirect parent of Holdings, to pay franchise taxes, directors fees and reasonable accounting, legal and administrative expenses of Holdings and such parents when due, in an aggregate amount not to exceed $500,000 per annum; (e) for so long as the Borrower is a member of a group filing a consolidated or combined tax return with Holdings or any direct or indirect parent of Holdings, the Borrower may make payments to Holdings and Holdings may make payments to such Person in respect of an allocable portion of the tax liabilities of such group that is attributable to Holdings, the Borrower or their Subsidiaries (limited, in the case of Holdings, to taxes attributable to its ownership of the Borrower) ("Tax Payments"). The Tax Payments shall not exceed the lesser of (i) the amount of the relevant tax (including any penalties and interest) that the Borrower would owe if the Borrower were filing a separate tax return (or a separate consolidated or combined return with its Subsidiaries that are members of the consolidated or combined group), taking into account any carryovers and carrybacks of tax attributes (such as net operating losses) of the Borrower and such Subsidiaries from other taxable years and (ii) the net amount of the relevant tax that Holdings or such Person actually owes to the appropriate taxing authority. Any Tax Payments received from the Borrower shall be paid over to the appropriate taxing authority within 30 days of Holdings' or any direct or indirect parent of Holdings' receipt of such Tax Payments or refunded to the Borrower; (f) if no Default or Event of Default shall have occurred exist or would occur after giving effect thereto, any Credit Party may make any Restricted Payments not otherwise permitted by this Section, not to exceed $2,000,000 in any fiscal year of Holdings and $10,000,000 in the aggregate after the Closing Date; provided, that any amount not utilized in a previous fiscal year may be continuing, at utilized in the time thereof, immediately succeeding fiscal year; (g) the Borrower may purchase repurchase, redeem, or otherwise acquire for value any Capital Stock of the Borrower, and the Borrower may make distributions, loans and advances to Holdings and Holdings may make distributions, loans and advances to any direct or indirect parent to enable the repurchase, redemption or other acquisition or retirement for value of any Capital Stock of Holdings, or any direct or indirect parent of Holdings, in each case, held by any current or former officer, director, consultant or employee of Holdings or any of its Subsidiaries (with or Heirs or other permitted transferees thereof); provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Capital Stock may not exceed $1.5 million in any calendar year; provided, further that the Borrower may carry over and make in subsequent calendar years, in addition to the amounts permitted for such calendar year, the amount of such purchases, redemptions or other acquisitions or retirements for value permitted to have been made but not made in any preceding calendar year up to a maximum of $3.0 million in any calendar year; provided further that such amount in any calendar year may be increased by an amount not to exceed (1) the net cash or notes) proceeds from the sale of Capital Stock of the Borrower from former (or Holdings or any direct or indirect parent of Holdings to the extent such net cash proceeds are contributed to the common equity of Holdings) to employees, officers, directors or employees consultants of Holdings and its Subsidiaries that occurs after the Borrower Closing Date (to the extent the cash proceeds from the sale of such Capital Stock have not otherwise been applied to the payment of Restricted Payments) plus (2) the cash proceeds of key man life insurance policies received by Holdings and its Subsidiaries after the Closing Date less any amounts previously applied to the payment of Restricted Payments pursuant to this clause (g); provided further that cancellation of Indebtedness owing to Holdings or any of its SubsidiariesSubsidiaries from employees, their estatesofficers, spouses directors and consultants of Holdings or former spouses any of its Subsidiaries in connection with the termination repurchase of Capital Stock of the Borrower, Holdings or any direct or indirect parent from such employee's employment Persons will not be deemed to constitute a Restricted Payment for purposes of this Section; (or such director's directorship); provided that, h) there shall be permitted hereunder (i) no the repurchase of Capital Stock deemed to occur upon the exercise of options, warrants or other convertible securities to the extent such note shall require any payment if such payment Capital Stock represent a portion of the exercise price of those options, warrants or a distribution by the Borrower to make such payment is prohibited by the terms of this Agreement other convertible securities and (ii) cash payments in lieu of the aggregate amount issuance of all fractional shares in connection with the exercise of options, warrants, or other convertible securities; (i) Holdings and the Borrower may make payments under this Section 11.6(d) in connection with or as a result of the Acquisition (including including, without limitation, payments in respect of any such purchase or any such notesEarnouts) shall not exceed to the sum of (A) $500,000 in any Fiscal Year or $1,000,000 in the aggregate during the term of this Agreement, plus (B) the amount of any cash equity contributions received extent contemplated by the Borrower for the purpose of making such payments and used for such purposeAcquisition Documents; and (ej) any non-Wholly Owned Subsidiary Holdings and the Borrower may make pro rata dividends Restricted Payments in exchange for, or distributions out of the net proceeds of the substantially concurrent sale (other than to holders of its a Subsidiary) of, other Capital Stock.