Common use of Restricted Payments Clause in Contracts

Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that, in each case (except Section 8.06(a)) so long as no Default or Event of Default shall have occurred and be continuing (both before and after the making of such Restricted Payment): (a) each Restricted Subsidiary may make Restricted Payments to the Borrower and to wholly-owned Restricted Subsidiaries (and, in the case of a Restricted Payment by a non-wholly-owned Restricted Subsidiary, to the Borrower and any Restricted Subsidiary and to each other owner of capital stock or other equity interests of such Restricted Subsidiary on a pro rata basis based on their relative ownership interests); (b) the Borrower and each Subsidiary may declare and make dividend payments or other distributions payable solely in the common stock or other common Equity Interests of such Person; (c) the Borrower and each Subsidiary may purchase, redeem or otherwise acquire shares of its common stock or other common Equity Interests or warrants or options to acquire any such shares in connection with customary employee or management agreements, plans or arrangements; (d) the Borrower shall be permitted to make Restricted Payments in the form of cash dividends to the shareholders of the Borrower in an aggregate amount in any fiscal year not to exceed $10,000,000; provided that, any amount of cash dividends permitted to be paid by this clause (d) but not paid in respect of any fiscal year commencing on or after October 1, 2006, may be carried forward and paid in any subsequent fiscal year; (e) the Borrower and each Subsidiary shall be permitted to make other Restricted Payments in the form of cash dividends, distributions, purchases, redemptions or other acquisitions of or with respect to shares of its common stock or other common Equity Interests either (i) if at the time of making such Restricted Payment the Consolidated Leverage Ratio (calculated on a pro forma basis giving effect to such Restricted Payment and any Indebtedness incurred in connection therewith and any other relevant factor, all in accordance with Sections 1.04(c) and (d)) is not greater than 3.50 to 1.00, on an unlimited basis, and (ii) if at the time of making such Restricted Payment the Consolidated Leverage Ratio (calculated on a pro forma basis giving effect to such Restricted Payment and any Indebtedness incurred in connection therewith and any other relevant factor, all in accordance with Sections 1.04(c) and (d)) is greater than 3.50 to 1.00 but less than the maximum permitted level for the most recently ended fiscal quarter set forth in Section 8.12(a), in an amount in any fiscal year of the Borrower not greater than the Maximum Annual Payment Amount (less any portion of the Maximum Annual Payment Amount utilized to make Investments pursuant to Section 8.02(o) or to prepay or otherwise satisfy Indebtedness pursuant to Section 8.11(a)(iv)).

Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, Payment except that, in each case (except Section 8.06(a)) so long as no Default or Event of Default shall have occurred and be continuing (both before and after at the making time of such Restricted Payment):any action described below or would result therefrom: (a) each Restricted Subsidiary may make Restricted Payments to the Borrower Borrower, the Guarantors and to wholly-owned Restricted Subsidiaries (and, any other Person that owns an Equity Interest in the case of a Restricted Payment by a non-wholly-owned such Restricted Subsidiary, ratably according to their respective holdings of the Borrower and any Restricted Subsidiary and to each other owner type of capital stock or other equity interests Equity Interest in respect of which such Restricted Subsidiary on a pro rata basis based on their relative ownership interests)Payment is being made; (b) the Borrower and each Restricted Subsidiary may declare and make dividend payments or other distributions payable solely in the common stock or other common Equity Interests Qualified Stock of such Person; (c) the Borrower and each Restricted Subsidiary may purchase, redeem or otherwise acquire Equity Interests issued by it with the proceeds received from the substantially concurrent issue of new shares of its common stock or other common Equity Interests or warrants or options to acquire any such shares in connection with customary employee or management agreements, plans or arrangementsQualified Stock; (d) the Borrower shall be permitted to and each Restricted Subsidiary may make Restricted Payments in respect of, and in the form of cash dividends amount of, any withholding tax obligation related to the shareholders issuance, vesting, repurchase, forfeiture, transfer, liquidation, or distributions with respect to any equity compensation held by or for the benefit of the employees, officers or directors of the Borrower in an or any Restricted Subsidiary; provided that the aggregate amount in any fiscal year not to exceed $10,000,000; provided that, any amount of cash dividends permitted to be paid by payments under this clause (d) but not paid in respect of any fiscal year commencing on or after October 1, 2006, may be carried forward and paid in any subsequent fiscal year; (e) the Borrower and each Subsidiary shall be permitted to make other Restricted Payments in the form of cash dividends, distributions, purchases, redemptions or other acquisitions of or with respect to shares of its common stock or other common Equity Interests either (i) if at the time of making such Restricted Payment the Consolidated Leverage Ratio (calculated on a pro forma basis giving effect to such Restricted Payment and any Indebtedness incurred in connection therewith and any other relevant factor, all in accordance with Sections 1.04(c) and (d)) is not greater than 3.50 to 1.00, on an unlimited basis, and (ii) if at the time of making such Restricted Payment the Consolidated Leverage Ratio (calculated on a pro forma basis giving effect to such Restricted Payment and any Indebtedness incurred in connection therewith and any other relevant factor, all in accordance with Sections 1.04(c) and (d)) is greater than 3.50 to 1.00 but less than the maximum permitted level for the most recently ended fiscal quarter set forth in Section 8.12(a), in an amount in any fiscal year of the Borrower shall not exceed $5,000,000; provided, further, that any Restricted Payments permitted (but not made) pursuant to this clause (d) in any prior fiscal year may be carried forward to any subsequent fiscal year (subject to an annual cap of no greater than $10,000,000); (e) in the Maximum Annual Payment Amount (less any portion ordinary course of its business, the Borrower may make Restricted Payments pursuant to and in connection with stock option plans or other benefit plans or arrangements for directors, management, employees or consultants of the Maximum Annual Payment Amount utilized to Borrower and its Restricted Subsidiaries; (f) the Borrower and its Restricted Subsidiaries may make Investments Restricted Payments constituting purchases by the Borrower or any of its Restricted Subsidiaries of any other Subsidiary’s capital stock pursuant to a transaction expressly permitted by Section 8.02(o) or to prepay or otherwise satisfy Indebtedness pursuant to 7.02 (other than Section 8.11(a)(iv7.02(m)); (g) subject to satisfaction of the Available Amount Conditions, the Borrower and each Restricted Subsidiary may make Restricted Payments not otherwise permitted by this Section 7.06 in an amount not to exceed the Available Amount at such time; and (h) so long as no Borrowing Base Deficiency has occurred and is continuing or would result therefrom, the Borrower and each Restricted Subsidiary may make payments of cash in lieu of the issuance of fractional shares upon the exercise of options or warrants or upon the conversion or exchange of Equity Interests or debt securities that are convertible into, or exchangeable for, Equity Interests of any such Person in accordance with their terms.

Restricted Payments. Declare The Company shall not declare or make, directly or indirectly, make any Restricted Payment, except: (i) Restricted Payments made in connection with the defeasance, redemption or incur repurchase of any obligation Indebtedness with the Net Cash Proceeds of Permitted Refinancing Indebtedness; and (ii) Restricted Payments of any Subsidiary of the Company to the Company or to another wholly-owned Subsidiary of the Company; and (iii) Restricted Payments made in connection with claims for reimbursement, indemnification or contribution arising out of or related to the Asset Purchase Agreement; and (iv) any Restricted Payment that constitutes a payment in respect of a purchase price adjustment, earn-out or other similar form of contingent purchase price in connection with any Acquisition (including the IITRI Acquisition) consummated on or otherwisebefore the Closing Date as set forth on Exhibit 10.3(f) and any Permitted Acquisition; and (v) Restricted Payments that constitute payments of principal, interest, premium, fees, expenses or other amounts due on the Securities pursuant to do sothis Agreement and the other Operative Documents, except thatand Restricted Payments that constitute mandatory payments of principal, interest, premium, fees or expenses due on or under the Seller Note Securities Purchase Agreement, the Seller Notes or the Seller Warrants or the other Operative Documents (as defined in the Seller Note Securities Purchase Agreement), in each case subject to the terms of the Subordination Agreements and any restrictions provided in the documents for such Indebtedness; and (except vi) Restricted Payments made (v) in connection with the redemption or repurchase for value of any Capital Stock of the Company as a result of distributions by the ESOT of such Capital Stock to participants in the ESOP pursuant to the ESOP Plan Documents subsequent to their termination of employment with the Company or any Controlled Group member, (w) as required by Section 8.06(a)401(a)(28) of the Code or any substantially similar Requirement of Law, (x) in good faith and belief by the Company to be made with respect to the payments described in the preceding clauses (v) or (w) but which do not so long as no qualify for the status described in the preceding clauses (v) or (w) on account of administrative error or mistake, provided that such payment would not otherwise result in a Default or Event of Default hereunder and either (A) such payments do not collectively exceed $250,000 during the period from the Closing Date through the date of such payment or (B) such payment is recovered by the Company within thirty (30) days thereof and the Company's books and records are accordingly adjusted to reflect such recovery, together with all other such payments under this subclause (B), do not collectively exceed $1,000,000 during the period from the Closing Date through the date of such payment, or (y) in the form of administrative fees or expenses of the ESOP or the ESOT including, without limitation, the fees of the ESOT Trustee or (z) as contributions to the ESOT as required under the ESOP Plan Documents; and (vii) Restricted Payments made in connection with stock appreciation rights plans, phantom stock plans and other equity-based incentive compensation arrangements or plans to the extent such payments would not be in violation of the terms of this Agreement or any other Operative Document. provided, however, that in no event shall any Restricted Payments (other than (1) to the Company, (2) as permitted by clause (ii) above, (3) Restricted Payments (x) resulting from distributions by the ESOT to participants in the ESOP pursuant to the ESOP Plan Documents subsequent to the termination by participants in the ESOP of employment with the Company or any Controlled Group member or (y) as required by Section 401(a)(28) of the Code or any substantially similar Requirement of Law, and (4) Restricted Payments resulting from contributions to the ESOT as required under the ESOP Plan Documents) be declared or made if either a Default or an Event of Default shall have occurred and be continuing at the date of declaration or payment thereof or would result therefrom; provided, further, that in no event shall any Restricted Payment be permitted under clause (both before and after the making of such Restricted Payment): (av) each Restricted Subsidiary may make Restricted Payments above with respect to the Borrower and to wholly-owned Restricted Subsidiaries Seller Notes, Seller Warrants or other Operative Documents (and, as defined in the case of a Restricted Payment by a non-wholly-owned Restricted Subsidiary, Seller Note Securities Purchase Agreement) unless the Company shall have delivered to the Borrower and any Restricted Subsidiary and to each other owner holders of capital stock or other equity interests of such Restricted Subsidiary on the Notes a pro rata basis based on their relative ownership interests); (b) the Borrower and each Subsidiary may declare and make dividend payments or other distributions payable solely compliance certificate in the common stock or other common Equity Interests of such Person; (c) the Borrower and each Subsidiary may purchase, redeem or otherwise acquire shares of its common stock or other common Equity Interests or warrants or options to acquire any such shares in connection with customary employee or management agreements, plans or arrangements; (d) the Borrower shall be permitted to make Restricted Payments in substantially the form of cash dividends to Exhibit 10.1(a)(iv)(b) hereto for the shareholders of the Borrower in an aggregate amount in any most recently completed fiscal year not to exceed $10,000,000; provided that, any amount of cash dividends permitted to be paid by this clause (d) but not paid in respect of any fiscal year commencing on or after October 1, 2006, may be carried forward and paid in any subsequent fiscal year; (e) the Borrower and each Subsidiary shall be permitted to make other Restricted Payments in the form of cash dividends, distributions, purchases, redemptions or other acquisitions of or with respect to shares of its common stock or other common Equity Interests either (i) if at the time of making such Restricted Payment the Consolidated Leverage Ratio (quarter calculated on a pro forma basis giving effect to such Restricted Payment and any Indebtedness incurred in connection therewith and any other relevant factor, all in accordance with Sections 1.04(c) and (d)) is not greater than 3.50 to 1.00, on an unlimited basis, and (ii) if at as of the time last day of making such Restricted Payment the Consolidated Leverage Ratio (calculated on a pro forma basis giving effect to such Restricted Payment and any Indebtedness incurred in connection therewith and any other relevant factor, all in accordance with Sections 1.04(c) and (d)) is greater than 3.50 to 1.00 but less than the maximum permitted level for the most recently ended prior fiscal quarter set forth and certifying that the Company is in Section 8.12(a), compliance with the financial covenants in an amount in any fiscal year section 10.4 as of the Borrower not greater than the Maximum Annual Payment Amount (less any portion last day of the Maximum Annual Payment Amount utilized to make Investments pursuant to Section 8.02(o) or to prepay or otherwise satisfy Indebtedness pursuant to Section 8.11(a)(iv))such prior fiscal quarter.

Restricted Payments. Declare or make, directly or indirectly, any No Obligor Party shall make payments which are Restricted Payment, or incur any obligation (contingent or otherwise) to do soPayments, except that, in each case (except Section 8.06(a)) so long as no Default or Event of Default shall have occurred and be continuing (both before and after the making of such Restricted Payment):: (a) each The Obligor Parties may make payments and other distributions as expressly permitted under Section 5.13 and Article III of the Depositary Agreement; provided that, solely with respect to any Restricted Subsidiary Payment to be made on the Term Conversion Date pursuant to the first proviso of Section 3.10(b) of the Depositary Agreement and Sections 3.8(c)(i) and 3.9(b)(iv) of the Depositary Agreement, no Revolving Loans are outstanding as of the date of such Restricted Payment before and after giving effect to such Restricted Payment. (b) The Borrower may reimburse Drawstop Equity Contributions pursuant to Section 4.03(d); provided that the aggregate remaining amount of all stated amounts, deposited amounts and amounts secured thereby, as applicable, of any Equity Credit Support to whom such reimbursement is intended to be made shall be equal to not less than the “Unfunded Commitment” (as defined in the Equity Contribution Agreement (after giving pro forma effect to the reimbursement of such Drawstop Equity Contribution)). (c) The Borrower may reimburse the Expansion Equity Contributions pursuant to Section 4.03(e); provided that the aggregate remaining amount of all stated amounts, deposited amounts and amounts secured thereby, as applicable, of any Equity Credit Support to whom such reimbursement is intended to be made shall be equal to not less than the “Unfunded Commitment” (as defined in the Equity Contribution Agreement (after giving pro forma effect to the reimbursement of such Expansion Equity Contribution)). (d) Restricted Payments may be made with the proceeds of amounts on deposit in or credited to any Excluded Commodity Account, in an aggregate amount not to exceed at any time (i) the amount of Equity Commodity Contributions made prior to such time less (ii) any amounts that have been previously transferred as a Restricted Payment pursuant to this clause (d). (e) Any Loan Party may make Restricted Payments to any other Loan Party. (f) Any Obligor Party may make payments to any Affiliate of the Obligor Parties under the Management Services Agreement (including the Management Fee), any Permitted O&M Agreement, any Permitted Energy Management Agreement or any other Project Contract entered into in accordance with this Agreement. (g) On or after the first Quarterly Payment Date following the Term Conversion Date, so long as the Distribution Conditions are satisfied as of the date of any such Restricted Payment, the Borrower and to wholly-owned Restricted Subsidiaries (and, in the case of a Restricted Payment by a non-wholly-owned Restricted Subsidiary, to the Borrower and any Restricted Subsidiary and to each other owner of capital stock or other equity interests of such Restricted Subsidiary on a pro rata basis based on their relative ownership interests); (b) the Borrower and each Subsidiary may declare and make dividend payments or other distributions payable solely in the common stock or other common Equity Interests of such Person; (c) the Borrower and each Subsidiary may purchase, redeem or otherwise acquire shares of its common stock or other common Equity Interests or warrants or options to acquire any such shares in connection with customary employee or management agreements, plans or arrangements; (d) the Borrower shall be permitted to make Restricted Payments to Sponsor, Holdings or its designee with amounts on deposit in, or credited to, the Distribution Suspense Account in accordance with Section 3.10 of the form of cash dividends Depositary Agreement. (h) Prior to the shareholders Term Conversion Date and so long as no Event of Default has occurred and is continuing, the Borrower may make the following withdrawals and transfers from the Construction Account: (i) for Permitted Tax Distributions and (ii) for general and administrative costs of the Borrower Projects and the Loan Parties directly incurred by Holdings and Sponsor, and other corporate overhead expenses in an aggregate amount in any fiscal year not to exceed $10,000,000; provided that, any amount of cash dividends permitted to be paid by this clause (d) but not paid in respect of any fiscal year commencing on or after October 1, 2006, may be carried forward and paid in any subsequent fiscal year; (e) the Borrower and each Subsidiary shall be permitted to make other Restricted Payments in the form of cash dividends, distributions, purchases, redemptions or other acquisitions of or with respect to shares of its common stock or other common Equity Interests either (i) if at the time of making such Restricted Payment the Consolidated Leverage Ratio (calculated on a pro forma basis giving effect to such Restricted Payment and any Indebtedness incurred in connection therewith and any other relevant factor, all in accordance with Sections 1.04(c) and (d)) is not greater than 3.50 to 1.00, on an unlimited basis, and (ii) if at the time of making such Restricted Payment the Consolidated Leverage Ratio (calculated on a pro forma basis giving effect to such Restricted Payment and any Indebtedness incurred in connection therewith and any other relevant factor, all in accordance with Sections 1.04(c) and (d)) is greater than 3.50 to 1.00 but less than the maximum permitted level for the most recently ended fiscal quarter set forth in Section 8.12(a), in an amount 250,000 in any fiscal year of the Borrower, provided that in each case Borrower not greater has certified that the Loan Parties have sufficient funds (taking into account the available Equity Commitment, amounts on deposit in the Construction Account and the Local Accounts (other than for payment of O&M Costs), and remaining availability under the Maximum Annual Construction Facility) to achieve Term Conversion. (i) Pursuant to and in accordance with Section 2.11(b)(iv), the Borrower may distribute the LeConte Target Disposition Prepayment Amount to Holdings, and Holdings may distribute such amount to LeConte. (j) The Borrower may distribute payments to be made to LeConte pursuant to the SP-15 Payment Amount Assignment Agreement and any payments made by Exelon under the Exelon Confirmation listed in clause (less any portion a) of the Maximum Annual Payment Amount utilized definition thereof to make Investments pursuant Holdings, and Holdings may distribute such amount to Section 8.02(o) or to prepay or otherwise satisfy Indebtedness pursuant to Section 8.11(a)(iv))LeConte.

Restricted Payments. Declare Such Obligor will not, and will not permit any of its Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that, in each case (except Section 8.06(a)) so long as no Default or Event of Default shall have occurred and be continuing (both before and after the making of such Restricted Payment):except: (a) each Restricted Subsidiary Borrower may make Restricted Payments declare and pay dividends with respect to the Borrower and to wholly-owned Restricted Subsidiaries (and, in the case of a Restricted Payment by a non-wholly-owned Restricted Subsidiary, to the Borrower and any Restricted Subsidiary and to each other owner of its capital stock or other equity interests payable solely in additional shares of such Restricted Subsidiary on a pro rata basis based on their relative ownership interests)its common stock; (b) the Borrower and each Subsidiary may declare and make dividend payments or other distributions payable solely in the common stock or other common Equity Interests of such Person; (c) the Borrower and each Subsidiary may purchase, redeem redeem, retire, or otherwise acquire shares of its common capital stock or other common Equity Interests with the proceeds received from a substantially concurrent issue of new shares of its capital stock or warrants other Equity Interests; (c) for the payment of dividends or options other distributions by any Subsidiary Guarantor to acquire any such shares in connection with customary employee or management agreements, plans or arrangementsother Obligor; (d) for the Borrower shall be permitted purpose of repurchasing Borrower’ stock, where such repurchase is in connection with the issuance of Borrower’s stock to make Restricted Payments in the form of cash dividends to the shareholders management, former employees, consultants or members of the Borrower Board of Directors of Borrower, in each case, who are not Affiliates of Borrower, in an aggregate amount not exceeding $500,000 in repurchases in any fiscal year not to exceed $10,000,000; provided that, any amount of cash dividends permitted to be paid by this clause (d) but not paid in respect of any fiscal year commencing on or after October 1, 2006, may be carried forward and paid in any subsequent fiscal year; (e) the Borrower and each Subsidiary shall be permitted to make other Restricted Payments in the form of cash dividendswaive, distributions, purchases, redemptions release or other acquisitions of or with respect to shares of its common stock or other common Equity Interests either (i) if at the time of making such Restricted Payment the Consolidated Leverage Ratio (calculated on a pro forma basis giving effect to such Restricted Payment and forgive any Indebtedness incurred owed by any employees, officers or directors, in connection therewith each case, who are not Affiliates of Borrower, in excess of $250,000 in any fiscal year; (f) to pay customary fees, taxes and any other relevant factor, all in accordance with Sections 1.04(c) and (d)) is not greater than 3.50 expenses to 1.00, on an unlimited basis, and (ii) if at members of the time Board of making such Restricted Payment the Consolidated Leverage Ratio (calculated on a pro forma basis giving effect to such Restricted Payment and any Indebtedness incurred in connection therewith and any other relevant factor, all in accordance with Sections 1.04(c) and (d)) is greater than 3.50 to 1.00 but less than the maximum permitted level for the most recently ended fiscal quarter set forth in Section 8.12(a)Directors of Borrower, in an amount approved by the compensation committee of the Board of Directors in its reasonable business judgment; (g) to pay any fees, taxes or expenses in connection with an initial public offering of Borrower’s common stock on a nationally recognized securities exchange; and (h) Borrower may redeem the shares of its Series C capital stock owned by the ▇▇▇▇ Letter Counterparty, but only with the proceeds received from an issue of new shares of its capital stock or other Equity Interests, either on a substantially concurrent basis with such issuance, or at the time described in the ▇▇▇▇ Letter as it exists on the date hereof (and in any fiscal year case, no later than fifteen (15) months following the occurrence of the Borrower not greater than the Maximum Annual Payment Amount (less any portion of the Maximum Annual Payment Amount utilized to make Investments pursuant to Section 8.02(o) or to prepay or otherwise satisfy Indebtedness pursuant to Section 8.11(a)(iv)a “Specified Condition” as defined under such letter).

Restricted Payments. Declare or make, directly or indirectly, Make any Restricted Payment, or incur any obligation (contingent or otherwise) to do soPayments, except thatas follows: (a) (i) Borrowers may pay dividends or other distributions payable solely in shares of capital stock of any Borrower or any Subsidiary or (ii) a Subsidiary may pay dividends or other distributions to any Borrower or to another Subsidiary; provided that the total of all such dividends or other distributions to Subsidiaries which are not Guarantors shall not exceed $300,000 over the life of this Agreement, in each case and provided further that if (except Section 8.06(a)1) so long as no a Default or Event of Default shall have occurred and be continuing or (both before and 2) the Leverage Ratio (determined on a pro forma basis after the making of giving effect to such Restricted Payment): transaction) is greater than 2.00 to 1.00, no such dividends or other distributions shall be paid by any Guarantor to any Subsidiary which is not also a Guarantor; provided, however, that this clause (a) each Restricted Subsidiary may make Restricted Payments to the Borrower and to wholly-owned Restricted Subsidiaries (and, in the case of a Restricted Payment by a non-wholly-owned Restricted Subsidiary, to the Borrower and any Restricted Subsidiary and to each other owner of capital stock shall not restrict dividends or other equity interests of such Restricted Subsidiary on a pro rata basis based on their relative ownership interests)distributions from Subsidiaries which are not Guarantors to other Subsidiaries which are not Guarantors; (b) any Borrower may distribute rights pursuant to a shareholder rights plan or redeem such rights, provided that such redemption is in accordance with the Borrower and each Subsidiary may declare and make dividend payments or other distributions payable solely in the common stock or other common Equity Interests terms of such Personshareholder rights plan; (c) the any Borrower and each Subsidiary may purchase, redeem or otherwise acquire shares of its common stock or other common Equity Interests or warrants or options to acquire any such shares in connection with customary employee or management agreements, plans or arrangements; (d) the Borrower shall be permitted to make Restricted Payments in the form of cash dividends connection with or pursuant to the shareholders of the Borrower in an aggregate amount in any fiscal year not to exceed $10,000,000; provided that, any amount of cash dividends permitted to be paid by this clause (d) but not paid in respect of any fiscal year commencing on or after October 1, 2006, may be carried forward and paid in any subsequent fiscal year; (e) the Borrower and each Subsidiary shall be permitted to make other Restricted Payments in the form of cash dividends, distributions, purchases, redemptions or other acquisitions of or with respect to shares of its common stock or other common Equity Interests either (i) if at the time of making such Restricted Payment the Consolidated Leverage Ratio (calculated on a pro forma basis giving effect to such Restricted Payment and any Indebtedness incurred Employee Benefits Plans or in connection therewith and any other relevant factorwith the employment, all in accordance with Sections 1.04(c) and (d)) is not greater than 3.50 to 1.00termination or compensation of its service providers, on an unlimited basisemployees, officers or directors, and (ii) if at the time to repurchase Equity Securities of making a Borrower which a shareholder is selling whether such repurchase is pursuant to a repurchase right or otherwise, provided, however, that with respect to (c)(ii) above, such Restricted Payment Payments may not exceed $1,000,000 in the aggregate at any time there are Outstanding Obligations; and Adesto Technologies Corporation Credit Agreement (d) any Subsidiary of any Borrower may declare or pay any ratable dividends in respect of its Equity Securities or purchase or redeem shares of its Equity Securities or make distributions to shareholders not otherwise permitted hereunder, provided that (i) the aggregate amount paid or distributed in any period of four consecutive quarters (excluding any amounts covered by subsection (b) above) does not exceed 5% of Consolidated Leverage Ratio (calculated on a pro forma basis giving effect to such Restricted Payment and any Indebtedness incurred in connection therewith and any other relevant factor, all in accordance with Sections 1.04(c) Tangible Net Worth as determined as of the fiscal quarter immediately preceding the date of determination; and (d)ii) is greater than 3.50 to 1.00 but less than when combined with the maximum permitted level for the most recently ended fiscal quarter set forth in amount of all purchases of Equity Securities made under Section 8.12(a7.06(e), the total of all such dividends, purchases or redemptions shall not exceed the sum of $100,000 in an amount in the aggregate over the life of this Agreement; provided, further, that the provisions of this clause (f), shall not restrict any fiscal year of the Subsidiary from declaring or paying dividends to any Borrower not greater than the Maximum Annual Payment Amount (less any portion of the Maximum Annual Payment Amount utilized to make Investments pursuant to Section 8.02(o) or to prepay or otherwise satisfy Indebtedness pursuant to Section 8.11(a)(iv))any wholly owned Subsidiary of Borrower.

Restricted Payments. Declare The Company will not, and will not permit any of its Restricted Subsidiaries to, declare or make, directly or indirectly, make any Restricted Payment, except (a) the Company or incur any obligation Restricted Subsidiary may declare and pay dividends or other distributions with respect to its Equity Interests payable solely in Qualified Equity Interests; (contingent b) Restricted Subsidiaries may declare and make Restricted Payments ratably with respect to their Equity Interests; (c) the Company may make Restricted Payments pursuant to and in accordance with stock option plans or otherwiseother benefit plans for present or former officers, directors, consultants or employees (or any affiliates, spouses, former spouses, other immediate family members, successors, executors, administrators, heirs, legatees or distributees thereof) of the Company and its Subsidiaries in an amount not to do soexceed (i) $15,000,000 (or, except thatfollowing a Qualified IPO, $30,000,000) in any fiscal year (with any unused amount of such base amount available for use in the next two succeeding fiscal years, subject to a maximum of $30,000,000 (or, following a Qualified IPO, $60,000,000) in any fiscal year), plus (ii) all net cash proceeds obtained from any key-man life insurance policies received by the Company or its Restricted Subsidiaries during such calendar year, plus (iii) the cash proceeds from the sale of Equity Interests (other than Disqualified Stock) of the Company and, to the extent contributed to the Company, the cash proceeds from the sale of Equity Interests of any parent entity, in each case to any future, present or former employees, directors, managers or consultants of the Issuer, any of its Subsidiaries or any parent entity that occurs after the Closing Date; provided that the amount of such cash proceeds utilized for any such repurchase, retirement or other acquisition or retirement for value will not increase the Available Amount; provided, that cancellation of Indebtedness owing in connection with a repurchase of Equity Interests of the Company or any Parent Company will not be deemed to constitute a Restricted Payment for purposes of this covenant or any other provision of this Agreement; provided, further, that, the Company may elect to apply all or any portion of the aggregate increases contemplated by clauses (except ii)-(iv) in any fiscal year; (d) to the extent constituting Restricted Payments, the Company and the Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 8.06(a6.03 or 6.07 (other than Section 6.07(a)); (e) repurchases of Equity Interests in the Company or any Restricted Subsidiary deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants; (f) the Company may cancel a portion of any equity compensation award in connection with the payment of withholding taxes by the Company and its Restricted Subsidiaries thereon on behalf of employees and directors of the Company and its Subsidiaries; (g) the Company may make other Restricted Payments in an aggregate amount not to exceed the sum of (x) $25,000,000 less the aggregate principal amount of Specified Indebtedness repurchased or prepaid pursuant to Section 6.06(a)(iv)(A), plus (y) the Available Amount and, at the Company’s option, the amount of cash received by the Company in respect of Investments made pursuant to Section 6.05(v)(i) (not to exceed the amount originally contributed to the Company as the basis for making such Investments) that have not been otherwise been applied; provided that the Company may only make the Restricted Payments permitted under the foregoing clause (g) so long as (A) no Event of Default has occurred and is continuing or would arise after giving effect to such Restricted Payment and (B) if such Restricted Payment is made in reliance of the Available Amount pursuant to clause (g)(y) above, after giving pro forma effect to such Restricted Payment, the Consolidated Net Leverage Ratio as of the last day of the most recent fiscal quarter of the Company for which financial statements have been delivered pursuant to Section 5.01(a) or (b) prior to such time would not exceed 5.70 to 1.00; (h) the payment of cash in lieu of the issuance of fractional shares in connection with the exercise of warrants, options or other securities convertible into or exercisable for Qualified Equity Interests of the Company; (i) the Company may distribute rights to holders of the Company’s common stock pursuant to a customary shareholder rights plan and the redemption of such rights for nominal consideration; (j) Restricted Payments to Holdings the proceeds of which shall be used by any Parent Company to pay corporate and overhead expense attributable to the preservation of its existence or ownership of the Company and its Restricted Subsidiaries in the ordinary course of business in an amount not to exceed $3,000,000 in any fiscal year of the Company; (k) (x) for any taxable period for which the Company is a member of a group filing a consolidated, combined or similar income tax return of which any direct or indirect parent of the Company is the common parent, the Company may make payments of dividends or other distributions to such direct or indirect parent, the proceeds of which will be used to pay consolidated or combined federal, state, local and/or foreign income taxes imposed on such direct or indirect parent to the extent such income taxes are attributable to the income of the Company and/or its Restricted Subsidiaries; provided that the amount of such payments in respect of any taxable period does not, in the aggregate, exceed the amount that the Company and/or its Restricted Subsidiaries that are members of such consolidated or combined group would have been required to pay in respect of such federal, state, local and/or foreign income taxes (as the case may be) in respect of such taxable period if the Company and/or its Restricted Subsidiaries paid such income taxes directly as a stand-alone consolidated or combined income tax group (reduced by any such taxes paid directly by the Company or any Restricted Subsidiary) and (y) for any taxable period for which the Company is treated as a pass-through entity for U.S. federal, state, and/or local income tax purposes, the Company may make payments of dividends or other distributions to its direct equity holder(s) (or, if a direct owner is a pass-through entity, to an indirect equity holder) for such taxable period, in an aggregate amount not to exceed the product of (1) the highest combined marginal federal and applicable state and/or local statutory tax rate (after taking into account the deductibility of state and local income taxes for U.S. federal income tax purposes and the character of the income in question) applicable to any direct (or, if a direct owner is a pass-through entity, indirect) equity holder of the Company for the taxable period in question, and (2) the taxable income of the Company for the taxable period in question, reduced by any cumulative net taxable loss with respect to all prior taxable periods beginning after the date hereof (determined as if all such periods were one period) to the extent such cumulative net taxable loss is of a character that would permit such loss to be deducted against the income of the taxable period in question; provided, however, that the permitted payment pursuant to this clause (k) shall be reduced by any such income tax liabilities payable by the Company and its Restricted Subsidiaries; (l) Restricted Payments pursuant to the Transactions; (m) Restricted Payments to Holdings the proceeds of which shall be used by any Parent Company to pay customary costs, fees and expenses (other than to Affiliates) related to any equity or debt offering, refinancing, issuance, incurrence, Disposition, acquisition or Investment permitted by this Agreement (including, without limitation, Section 7.11 hereof) (in each case, whether or not consummated) and, following the consummation of a Qualifying IPO or the issuance of public debt securities, Public Company Costs; (n) Restricted Payments used to make dividends on the common stock or common equity interests of the Company following any Qualified IPO of such common stock or common equity interests, in an amount not to exceed (x) 6.00% per annum of the proceeds received by or contributed to Company in or from such Qualifying IPO, plus (y) proceeds received by or contributed to the Company in or from any Qualified IPO, in excess of $300,000,000, so long as, after giving effect thereto on a Pro Forma Basis, the Consolidated Net Total Leverage Ratio for the Company’s most recently ended four full fiscal quarters for which financial statements have been delivered pursuant to Section 5.01(a) or (b) prior to such time would not exceed 5.00 to 1.0; (o) Restricted Payments necessary to finance any Investment permitted to be made pursuant to Section 6.05; provided that such Restricted Payment shall be made substantially concurrently with the closing of such Investment; (p) so long as no Default or Event of Default shall have occurred and be is continuing (both before and after the making of such or would result therefrom, additional Restricted Payment): (a) each Restricted Subsidiary may make Restricted Payments to the Borrower and to wholly-owned Restricted Subsidiaries (and, in the case of a Restricted Payment by a non-wholly-owned Restricted Subsidiary, to the Borrower and any Restricted Subsidiary and to each other owner of capital stock or other equity interests of such Restricted Subsidiary on a pro rata basis based on their relative ownership interests); (b) the Borrower and each Subsidiary may declare and make dividend payments or other distributions payable solely in the common stock or other common Equity Interests of such Person; (c) the Borrower and each Subsidiary may purchase, redeem or otherwise acquire shares of its common stock or other common Equity Interests or warrants or options to acquire any such shares in connection with customary employee or management agreements, plans or arrangements; (d) the Borrower shall be permitted to make Restricted Payments in the form of cash dividends to the shareholders of the Borrower in an aggregate amount in any fiscal year not to exceed $10,000,000Payments; provided that, after giving effect thereto on a Pro Forma Basis, the Consolidated Net Leverage Ratio as of the last day of the most recent fiscal quarter of the Company for which financial statements have been delivered pursuant to Section 5.01(a) or (b) prior to such time would not exceed 4.00 to 1.00; and (q) Restricted Payments made with proceeds of issuances of, or capital contributions with respect to, Qualified Equity Interests of Holdings to the extent contributed to the Company or, following a Qualified IPO, the Company and, in each case, not included in the Available Amount or utilized as the basis for any amount of cash dividends permitted to be paid by this clause (d) but not paid other Investment, Restricted Payment or payment in respect of any fiscal year commencing on or after October 1, 2006, may be carried forward and paid in any subsequent fiscal year; (e) the Borrower and each Subsidiary shall be permitted to make other Restricted Payments in the form of cash dividends, distributions, purchases, redemptions or other acquisitions of or with respect to shares of its common stock or other common Equity Interests either (i) if at the time of making such Restricted Payment the Consolidated Leverage Ratio (calculated on a pro forma basis giving effect to such Restricted Payment and any Indebtedness incurred in connection therewith and any other relevant factor, all in accordance with Sections 1.04(c) and (d)) is not greater than 3.50 to 1.00, on an unlimited basis, and (ii) if at the time of making such Restricted Payment the Consolidated Leverage Ratio (calculated on a pro forma basis giving effect to such Restricted Payment and any Indebtedness incurred in connection therewith and any other relevant factor, all in accordance with Sections 1.04(c) and (d)) is greater than 3.50 to 1.00 but less than the maximum permitted level for the most recently ended fiscal quarter set forth in Section 8.12(a), in an amount in any fiscal year of the Borrower not greater than the Maximum Annual Payment Amount (less any portion of the Maximum Annual Payment Amount utilized to make Investments pursuant to Section 8.02(o) or to prepay or otherwise satisfy Indebtedness pursuant to Section 8.11(a)(iv))Specified Indebtedness.

Restricted Payments. Declare No Credit Party shall, or makeshall permit any of its Subsidiaries that are Restricted Subsidiaries to, directly or indirectly, make any Restricted Payment, or incur Payment at any obligation (contingent or otherwise) to do so, except time; provided that, in each case (except Section 8.06(a)) so long as no Default or Event of Default shall have occurred and be continuing (both before and after the making of such Restricted Payment):: (ai) each the Borrower and any Restricted Subsidiary may make Restricted Payments to the Borrower and to or another Credit Party that is a wholly-owned Restricted Subsidiaries (and, in Subsidiary of the case of a Restricted Payment by a non-Borrower or is wholly-owned Restricted Subsidiary, to by the Credit Party who is the recipient of such payment, (ii) the Borrower and any Restricted Subsidiary and to each other owner may pay dividends on its Capital Stock in the form of capital stock or other equity interests shares of additional Capital Stock so long as no Change of Control shall result from the payment of such Restricted Subsidiary on a pro rata basis based on their relative ownership interests);share dividend, (biii) the Borrower and each Subsidiary may declare and make dividend payments Restricted Payments in respect of dividends or other distributions payable solely payments on Capital Stock, repurchase of Capital Stock and payments on Permitted Subordinated Indebtedness in any Fiscal Year not in excess of its net income for the common stock previous fiscal year so long as no Unmatured Default or Default then exists or would result therefrom, (iv) so long as no Default exists, the repurchase or other common Equity Interests acquisition of Capital Stock of the Borrower or any Restricted Subsidiary from employees, former employees, directors or former directors of the Borrower or any Restricted Subsidiary (or permitted transferees of such Person;employees, former employees, directors or former directors), pursuant to the terms of the agreements (including employment agreements) or plans (or amendments thereto) approved by the Board of Directors of the Borrower under which such individuals purchase or sell, or are granted the option to purchase or sell, shares of such Capital Stock; provided, however, that the aggregate amount of such repurchases and other acquisitions (excluding amounts representing cancellation of Indebtedness) shall not exceed $5,000,000 (or its equivalent in any other currency) in any calendar year, (cv) repurchases of Capital Stock may occur upon exercise of stock options if such Capital Stock represents a portion of the Borrower and each Subsidiary exercise price of such options, (vi) cash payments may purchase, redeem or otherwise acquire shares be made in lieu of its common stock or other common Equity Interests or warrants or options to acquire any such the issuance of fractional shares in connection with customary employee the exercise of warrants, options or management agreements, plans other securities convertible into or arrangements;exchangeable for Capital Stock of the Borrower, (dvii) Restricted Payments may be made from the proceeds, not required to be applied to pay other Indebtedness, of the issuance of new Capital Stock to a Person that is not the Borrower shall be permitted to make or a Subsidiary, and (viii) other Restricted Payments in the form of cash dividends to the shareholders of the Borrower in an aggregate amount in any fiscal year may be made not to exceed $10,000,000; provided that, any amount of cash dividends permitted to be paid by this clause 20,000,000 (d) but not paid in respect of any fiscal year commencing on or after October 1, 2006, may be carried forward and paid its equivalent in any subsequent fiscal year; (eother currency) the Borrower and each Subsidiary shall be permitted to make other Restricted Payments in the form of cash dividends, distributions, purchases, redemptions or other acquisitions of or with respect to shares of its common stock or other common Equity Interests either (i) if at the time of making such Restricted Payment the Consolidated Leverage Ratio (calculated on a pro forma basis giving effect to such Restricted Payment and any Indebtedness incurred in connection therewith and any other relevant factor, all in accordance with Sections 1.04(c) and (d)) is not greater than 3.50 to 1.00, on an unlimited basis, and (ii) if at the time of making such Restricted Payment the Consolidated Leverage Ratio (calculated on a pro forma basis giving effect to such Restricted Payment and any Indebtedness incurred in connection therewith and any other relevant factor, all in accordance with Sections 1.04(c) and (d)) is greater than 3.50 to 1.00 but less than the maximum permitted level for the most recently ended fiscal quarter set forth in Section 8.12(a), in an amount in any fiscal year of the Borrower not greater than the Maximum Annual Payment Amount (less any portion of the Maximum Annual Payment Amount utilized to make Investments pursuant to Section 8.02(o) or to prepay or otherwise satisfy Indebtedness pursuant to Section 8.11(a)(iv))aggregate.

Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that, in each case (except Section 8.06(a)) so long as no Default or Event of Default shall have occurred and be continuing (both before and after at the making time of such Restricted Payment):any action described below or would result therefrom: (a) each Restricted Subsidiary may make Restricted Payments to the Borrower and to wholly-wholly owned Restricted Subsidiaries (and, in the case of a Restricted Payment by a non-wholly-wholly owned Restricted Subsidiary, to the Borrower and any Restricted Subsidiary and to each other owner of capital stock or other equity interests Equity Interests of such Restricted Subsidiary on a pro rata basis based on their relative ownership interests); (b) each Subsidiary of the Borrower and each Subsidiary may declare and make dividend payments or other distributions payable solely in the common stock or other common Equity Interests of such Person; (c) the Borrower and each Subsidiary may purchase, redeem or otherwise acquire shares of its common stock or other common Equity Interests or warrants or options to acquire any such shares in connection with customary employee or management agreements, plans or arrangements; (d) the Borrower shall be permitted to make Restricted Payments in proceeds received from the form substantially concurrent issue of cash dividends to the shareholders of the Borrower in an aggregate amount in any fiscal year not to exceed $10,000,000; provided that, any amount of cash dividends permitted to be paid by this clause (d) but not paid in respect of any fiscal year commencing on or after October 1, 2006, may be carried forward and paid in any subsequent fiscal year; (e) the Borrower and each Subsidiary shall be permitted to make other Restricted Payments in the form of cash dividends, distributions, purchases, redemptions or other acquisitions of or with respect to new shares of its common stock or other common Equity Interests either Interests; (d) the Borrower may make Restricted Payments so long as (i) the Material Debt Documents then outstanding, if at the time of making any, would permit such Restricted Payment the Consolidated Leverage Ratio Payment, (calculated on a pro forma basis ii) after giving effect to such Restricted Payment and any Indebtedness incurred in connection therewith Payments (and any other relevant factortransaction (including any incurrence, all assumption or repayment of any Indebtedness) in accordance with Sections 1.04(c) connection therewith), the Borrower and its Subsidiaries shall have at least $50,000,000 of available Liquidity and (d)iii) is not greater than 3.50 to 1.00if, on an unlimited basisafter giving effect thereto, and either (iiA) if at the time of making such Restricted Payment the Consolidated Senior Secured Leverage Ratio (calculated on a pro forma basis giving effect to Pro Forma Basis for the applicable Reference Period would be less than 2.25:1.00 or (B) the aggregate amount of such Restricted Payment and any Indebtedness incurred in connection therewith and any other relevant factor, all in accordance with Sections 1.04(cPayments made pursuant to this subclause (iii)(B) and (d)) is greater than 3.50 to 1.00 but would be less than the maximum permitted level for sum of (1) $100,000,000 in the most recently ended fiscal quarter set forth in Section 8.12(a), in an amount in any fiscal year aggregate since the Closing Date plus (2) up to 100% of the Net Cash Proceeds from the sale or issuance by the Borrower not greater than of any of its Equity Interests since the Maximum Annual Payment Amount Closing Date plus (less any portion 3) 50% of the Maximum Annual Payment Amount utilized to Consolidated Net Income since September 30, 2016; (e) the Borrower and its Subsidiaries may make Investments pursuant to Section 8.02(oRestricted Payments on or promptly after the Closing Date in connection with the Transactions; (f) or to prepay or otherwise satisfy the Borrower and its Subsidiaries may incur Indebtedness pursuant to Section 8.11(a)(iv7.02(c) (including refinancings thereof)); and (g) dividends on the common stock or common Equity Interests of the Borrower, or any share repurchases of the common stock or common equity interests of the Borrower, in an aggregate amount not to exceed $20,000,000 in any fiscal year.

Restricted Payments. Declare The Borrower will not, and will not permit any of its Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that, in each case (except Section 8.06(a)) so as long as no Event of Default has occurred and is continuing or would result therefrom, (a) WPZ may make Restricted Payments of Available Cash (as defined in the Partnership Agreement) with respect to any Quarter (as defined in the Partnership Agreement), (b) each of NWP and TGPL and their respective Subsidiaries may make Restricted Payments to WPZ and its Subsidiaries, (c) WPZ and its Subsidiaries may make payments or other distributions to officers, directors or employees with respect to the exercise by any such Persons of options, warrants or other rights to acquire Equity Interests in WPZ or such Subsidiary issued pursuant to an employment, equity award, equity option or equity appreciation agreement or plans entered into by WPZ or such Subsidiary in the ordinary course of business, (d) WPZ may reimburse the General Partner for expenses pursuant to the Partnership Agreement, (e) TGPL and NWP and their Subsidiaries may distribute cash to WPZ in connection with their participation in WPZ’s cash management program and (f) any Person may be permitted to make any Restricted Payment required to effectuate a MLP Combination; provided, that even if an Event of Default shall have occurred and is continuing, no Subsidiary of the Borrower shall be continuing (both before and after the making of such Restricted Payment): (a) each Restricted Subsidiary may make Restricted Payments prohibited from upstreaming dividends or other payments to the Borrower and to wholly-owned Restricted Subsidiaries (andor any Subsidiary of the Borrower or making, in the case of a Restricted Payment by a non-any Subsidiary that is not wholly-owned Restricted Subsidiary(directly or indirectly) by the Borrower, dividends or payments, as the case may be, to the Borrower other owners of Equity Interests in such Subsidiary; and provided, further, that, any Restricted dividends or payments by any such Subsidiary and to each other owner of capital stock that is not wholly-owned (directly or other equity interests of such Restricted Subsidiary on a pro rata basis based on their relative ownership interests); (bindirectly) by the Borrower and each Subsidiary may declare and make dividend payments or other distributions payable solely in the common stock or other common Equity Interests of such Person; (c) the Borrower and each Subsidiary may purchase, redeem or otherwise acquire shares of its common stock or other common Equity Interests or warrants or options to acquire any such shares in connection with customary employee or management agreements, plans or arrangements; (d) the Borrower shall be permitted not less than an amount equal to make Restricted Payments (x) WPZ’s direct or indirect percentage ownership of Equity Interests in such Subsidiary times (y) the form of cash dividends to the shareholders of the Borrower in an aggregate amount in any fiscal year not to exceed $10,000,000; provided that, any amount of cash all such dividends permitted and payments made to be paid by this clause (d) but not paid in respect all owners of any fiscal year commencing on or after October 1, 2006, may be carried forward and paid in any subsequent fiscal year; (e) the Borrower and each Subsidiary shall be permitted to make other Restricted Payments in the form of cash dividends, distributions, purchases, redemptions or other acquisitions of or with respect to shares of its common stock or other common Equity Interests either (i) if at the time of making in such Restricted Payment the Consolidated Leverage Ratio (calculated on a pro forma basis giving effect to such Restricted Payment and any Indebtedness incurred in connection therewith and any other relevant factor, all in accordance with Sections 1.04(c) and (d)) is not greater than 3.50 to 1.00, on an unlimited basis, and (ii) if at the time of making such Restricted Payment the Consolidated Leverage Ratio (calculated on a pro forma basis giving effect to such Restricted Payment and any Indebtedness incurred in connection therewith and any other relevant factor, all in accordance with Sections 1.04(c) and (d)) is greater than 3.50 to 1.00 but less than the maximum permitted level for the most recently ended fiscal quarter set forth in Section 8.12(a), in an amount in any fiscal year of the Borrower not greater than the Maximum Annual Payment Amount (less any portion of the Maximum Annual Payment Amount utilized to make Investments pursuant to Section 8.02(o) or to prepay or otherwise satisfy Indebtedness pursuant to Section 8.11(a)(iv))Subsidiary.

Restricted Payments. Declare or makepay any dividend (other than dividends payable solely in common stock or other applicable common equity interests of the Person making such dividend) on, or make any payment on account of, or set apart assets for a sinking or other analogous fund for, the purchase, redemption, defeasance, retirement or other acquisition of, any Capital Stock (but excluding any of the foregoing with respect to any debt security that is convertible into, or exchangeable for, Capital Stock) of the Company or any Subsidiary, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of the Company or any Subsidiary (collectively, “Restricted Payment, or incur any obligation (contingent or otherwise) to do soPayments”), except that: (a) any Subsidiary may make Restricted Payments to the Company, any Subsidiary or to any other Person (ratably based on such other Person’s equity ownership in each case such Subsidiary) which owns Capital Stock of such Subsidiary; (except Section 8.06(a)b) so long as no Event of Default shall have occurred and be continuing, the Company may purchase the Company’s common stock held by any Permitted Payee upon the death, disability or termination of employment of such officer or employee; provided that the aggregate amount of Restricted Payments under this paragraph (b) in any fiscal year shall not exceed the lesser of (i) $10,000,000 and (y) the sum of $5,000,000 plus the amount of Restricted Payments permitted to be made pursuant to this paragraph (b) in any previous fiscal year but not so made as a Restricted Payment pursuant to this paragraph (b) in any previous fiscal year; (c) the Company may make Restricted Payments if, after giving effect thereto, the Total Net Leverage Ratio calculated on the date of incurrence thereof on a Pro Forma Basis would be less than 1.50 to 1.00 (it being understood that any Restricted Payment permitted at the time it was made shall be deemed to be permitted notwithstanding that the conditions specified in this paragraph (c) for such Restricted Payment may no longer be satisfied thereafter); provided that no Event of Default shall have occurred and be continuing (both before and after the making of such Restricted Payment): (a) each Restricted Subsidiary may make Restricted Payments to the Borrower and to wholly-owned Restricted Subsidiaries (and, in the case of a Restricted Payment by a non-wholly-owned Restricted Subsidiary, to the Borrower and any Restricted Subsidiary and to each other owner of capital stock or other equity interests of such Restricted Subsidiary on a pro rata basis based on their relative ownership interests); (b) the Borrower and each Subsidiary may declare and make dividend payments or other distributions payable solely in the common stock or other common Equity Interests of such Person; (c) the Borrower and each Subsidiary may purchase, redeem or otherwise acquire shares of its common stock or other common Equity Interests or warrants or options to acquire any such shares in connection with customary employee or management agreements, plans or arrangements;would result therefrom); (d) the Borrower shall be permitted to make Restricted Payments in the form Company may withhold shares of cash dividends to the shareholders Capital Stock of the Borrower in an aggregate amount in any fiscal year not to exceed $10,000,000; provided thatCompany from, any amount and pay personal payroll taxes of cash dividends permitted to be paid by this clause (d) but not paid employees in respect of any fiscal year commencing on or after October 1vested restricted shares of, 2006options to purchase and other equity incentive awards in respect of, may be carried forward and paid in any subsequent fiscal year;the Capital Stock of the Company; (e) the Borrower and each Subsidiary shall be permitted to Company may make other additional Restricted Payments in an amount not to exceed the form portion, if any, of cash dividends, distributions, purchases, redemptions or other acquisitions of or the Available Amount on such date that the Company elects to apply to this clause (e); provided that (x) with respect to shares the use of its common stock the portion of the Available Amount set forth in (a)(ii) of the definition thereof, no Event of Default shall have occurred and be continuing or other common Equity Interests either (i) if at the time of making such Restricted Payment the Consolidated Leverage Ratio (calculated on a pro forma basis giving effect to such Restricted Payment and any Indebtedness incurred in connection therewith and any other relevant factor, all in accordance with Sections 1.04(c) would result therefrom and (dy) with respect to the use of each other portion of the Available Amount, no Specified Event of Default shall have occurred and be continuing or would result therefrom; (f) the Company may make additional Restricted Payments in an aggregate amount, together with the amount of Restricted Debt Payments made pursuant to Section 7.13(f)) is , not to exceed the greater than 3.50 to 1.00, on an unlimited basis, of $62,000,000 and (ii) if at the time 35% of making such Restricted Payment the Consolidated Leverage Ratio (calculated on a pro forma basis giving effect to such Restricted Payment and any Indebtedness incurred in connection therewith and any other relevant factor, all in accordance with Sections 1.04(c) and (d)) is greater than 3.50 to 1.00 but less than the maximum permitted level EBITDA for the most recently ended fiscal quarter set forth Test Period; (g) the Company may repurchase, redeem, acquire or retire Capital Stock upon (or make provisions for withholdings in Section 8.12(aconnection with) (or make provisions for withholdings in connection with), in an amount in any fiscal year the exercise of the Borrower not greater than the Maximum Annual Payment Amount (less any warrants, options or other securities convertible into or exchangeable for Capital Stock if such Capital Stock represents all or a portion of the Maximum Annual Payment Amount utilized exercise price of, or tax withholdings with respect to, such warrants, options or other securities convertible into or exchangeable for Capital Stock as part of a “cashless” exercise; (h) to the extent constituting a Restricted Payment, the Company may consummate any transaction permitted by Section 7.5 (other than Sections 7.5(c)) and Section 7.7 (other than Section 7.7(y) and 7.7(cc)); (i) the Company may pay any dividend or other distribution or consummate any redemption within 60 days after the date of the declaration thereof or the provision of a redemption notice with respect thereto, as the case may be, if at the date of such declaration or notice, the dividend, distribution or redemption contemplated by such declaration or redemption notice would have complied with the provisions of this Section 7.6; (j) the company may make Investments additional Restricted Payments in an aggregate amount not to exceed an amount equal to 7.00% of the Net Cash Proceeds of a Qualifying IPO; (k) the Company may make a distribution, by dividend or otherwise, of the Capital Stock of any Unrestricted Subsidiary (or a Subsidiary that owns one or more Unrestricted Subsidiaries; provided that such Subsidiary owns no assets other than Capital Stock of one or more Unrestricted Subsidiaries and immaterial assets incidental to the ownership thereof); (l) the Company may make payments and distributions to satisfy dissenters’ rights (including in connection with, or as a result of, the exercise of appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential)), pursuant to or in connection with any acquisition, merger, consolidation, amalgamation or Disposition that complies with Section 8.02(o7.5 or any other transaction permitted hereunder; (m) the Company may make a Restricted Payment in respect of required withholding or similar non-U.S. Taxes with respect to prepay any Permitted Payee and any repurchases of Capital Stock in consideration of such payments, including deemed repurchases in connection with the exercise of stock options or otherwise satisfy Indebtedness pursuant the issuance of restricted stock units or similar stock based awards; and (n) for any taxable period for which the Company and/or any of its Subsidiaries are members of a consolidated, combined, unitary or similar group for any federal, state, or local income tax purposes, the Company may pay any federal, state or local income taxes, or any franchise taxes imposed in lieu thereof, to Section 8.11(a)(iv))any parent of any consolidated, combined, unitary or similar group that includes the Company or any of its Subsidiaries or joint ventures in respect of any consolidated, combined, unitary or similar income tax return that includes the Company or any of its Subsidiaries or joint ventures to the extent attributable to the income of the Company and/or its Subsidiaries or joint ventures determined as if the Company and its Subsidiaries or joint ventures filed a consolidated, combined, unitary or similar return separately from any other members of the group.

Restricted Payments. Declare The Borrower will not, and will not permit any Restricted Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that: (a) any Restricted Subsidiary may declare and pay dividends or make other distributions with respect to its Equity Interests, or make other Restricted Payments in respect of its Equity Interests, in each case ratably to the holders of such Equity Interests; (except b) the Borrower may declare and pay dividends with respect to its Equity Interests payable solely in shares of Equity Interests; (c) the Borrower may make Restricted Payments pursuant to and in accordance with stock option plans or other compensation or benefit plans approved by the Borrower’s board of directors, or any committee thereof, for directors, officers or employees of the Borrower and the Restricted Subsidiaries; (d) the Borrower and any Restricted Subsidiary may make any Restricted Payment required to effect a REIT Conversion, including, for the avoidance of doubt, any Restricted Payment necessary to satisfy the requirements of Section 8.06(a857(a)(2)(B) of the Code (or any successor provision); (e) for so long as the Borrower or any Restricted Subsidiary is a REIT, the Borrower and the Restricted Subsidiaries may make any Restricted Payment; provided that the aggregate amount of such Restricted Payments do not exceed, for any four consecutive fiscal quarters of the Borrower, such amount as may be required for the Borrower or any Restricted Subsidiary, as applicable, to continue to qualify as a REIT or to avoid the imposition of income or excise taxes on the Borrower or any Restricted Subsidiary; and (f) the Borrower and the Restricted Subsidiaries may make any Restricted Payment so long as no Default or Event of Default shall have occurred and be continuing (both before and after the making of such Restricted Payment): (a) each Restricted Subsidiary may make Restricted Payments to the Borrower and to wholly-owned Restricted Subsidiaries (and, in the case of a Restricted Payment by a non-wholly-owned Restricted Subsidiary, to the Borrower and any Restricted Subsidiary and to each other owner of capital stock or other equity interests of such Restricted Subsidiary on a pro rata basis based on their relative ownership interests); (b) the Borrower and each Subsidiary may declare and make dividend payments or other distributions payable solely in the common stock or other common Equity Interests of such Person; (c) the Borrower and each Subsidiary may purchase, redeem or otherwise acquire shares of its common stock or other common Equity Interests or warrants or options to acquire any such shares in connection with customary employee or management agreements, plans or arrangements; (d) the Borrower shall be permitted to make Restricted Payments in the form of cash dividends to the shareholders of the Borrower in an aggregate amount in any fiscal year not to exceed $10,000,000; provided that, any amount of cash dividends permitted to be paid by this clause (d) but not paid in respect of any fiscal year commencing on or after October 1, 2006, may be carried forward and paid in any subsequent fiscal year; (e) the Borrower and each Subsidiary shall be permitted to make other Restricted Payments in the form of cash dividends, distributions, purchases, redemptions or other acquisitions of or with respect to shares of its common stock or other common Equity Interests either (i) if at the time of making such Restricted Payment the Consolidated Leverage Ratio (calculated on a pro forma basis giving effect to such Restricted Payment and any Indebtedness incurred in connection therewith and any other relevant factor, all in accordance with Sections 1.04(c) and (d)) is not greater than 3.50 to 1.00, on an unlimited basis, and (ii) if at the time of making such Restricted Payment the Consolidated Leverage Ratio (calculated on a pro forma basis giving effect to such Restricted Payment and any Indebtedness incurred in connection therewith and any other relevant factor, all in accordance with Sections 1.04(c) and (d)) is greater than 3.50 to 1.00 but less than the maximum permitted level for the most recently ended fiscal quarter set forth in Section 8.12(a), in an amount in any fiscal year of the Borrower not greater than the Maximum Annual Payment Amount (less any portion of the Maximum Annual Payment Amount utilized to make Investments pursuant to Section 8.02(o) or to prepay or otherwise satisfy Indebtedness pursuant to Section 8.11(a)(iv))would result therefrom.

Restricted Payments. Declare (a) The Borrower will not, and ------------------- will not permit any of its Restricted Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, except (i) the Borrower may declare and pay dividends with respect to its capital stock not to exceed $10,000,000 in the aggregate in any fiscal year, (ii) Restricted Subsidiaries may declare and pay dividends ratably with respect to their capital stock, (iii) the Borrower may make Restricted Payments pursuant to and in accordance with stock option plans or incur other benefit plans for management or employees of the Borrower and its Subsidiaries, (iv) Borrower or any obligation (contingent or otherwise) to do so, except that, in each case (except Section 8.06(a)) so long as no Default or Event of Default shall have occurred and be continuing (both before and after the making of such Restricted Payment): (a) each Restricted Subsidiary may make Restricted Payments in respect of Employment Arrangements (including but not limited to the purchase of Equity Interests in Borrower), (v) Borrower and to wholly-owned or any Restricted Subsidiaries (and, in the case of Subsidiary may make a Restricted Payment by pursuant to a non-wholly-owned Restricted SubsidiaryPut Arrangement, to the (vi) Borrower and or any Restricted Subsidiary and to each other owner may make dividends or distributions of capital stock or other equity interests of such Restricted Subsidiary on a pro rata basis based on their relative ownership interests); (b) the Borrower and each Subsidiary may declare and make dividend payments or other distributions payable solely in the common stock or other common Equity Interests of such Person; (c) the Borrower and each Subsidiary may purchase, redeem or otherwise acquire shares of its common stock or other common Equity Interests or warrants options or options rights to acquire common Equity Interests, and (vii) Borrower or any such shares in connection with customary employee or management agreements, plans or arrangements; (d) the Borrower shall be permitted to make Restricted Payments in the form of cash dividends to the shareholders of the Borrower in an aggregate amount in any fiscal year not to exceed $10,000,000; provided that, any amount of cash dividends permitted to be paid by this clause (d) but not paid in respect of any fiscal year commencing on or after October 1, 2006, Subsidiary may be carried forward and paid in any subsequent fiscal year; (e) the Borrower and each Subsidiary shall be permitted to make other Restricted Payments in the form of (other than cash dividends, distributions, purchases, redemptions or other acquisitions of or with respect to shares of dividends on its common stock or other common Equity Interests either (iStock) if at the time of making such Restricted Payment the Consolidated Leverage Ratio (calculated on a pro forma basis provided that immediately after giving effect to such Restricted Payments under this clause (vii), the aggregate amount of Restricted Payments made under this clause (vii) after September 30, 2000 does not exceed the sum of (A) $60,000,000 plus (B) 50% of Borrower's consolidated quarterly net income (if positive) for each calendar quarter ended during the applicable Calculation Period, plus (C) all interest and principal payments, dividends, distributions and other proceeds received by Borrower or any Restricted Subsidiary in respect of any Restricted Investment during the applicable Calculation Period, plus (D) all Restricted Investments in any Unrestricted Subsidiary which is redesignated as a Restricted Subsidiary. As used above, the applicable "Calculation Period" with respect to a Restricted Payment means the period (taken as one accounting period) from and any Indebtedness incurred in connection therewith after June 30, 2000 to and any other relevant factor, all in accordance with Sections 1.04(c) and (d)) is not greater than 3.50 to 1.00, on an unlimited basis, and (ii) if at including the time last day of making the fiscal quarter ended immediately preceding the date of such Restricted Payment the Consolidated Leverage Ratio (calculated on a pro forma basis giving effect to such Restricted Payment and any Indebtedness incurred in connection therewith and any other relevant factor, all in accordance with Sections 1.04(c) and (d)) is greater than 3.50 to 1.00 but less than the maximum permitted level for the most recently ended fiscal quarter set forth in Section 8.12(a), in an amount in any fiscal year of the Borrower not greater than the Maximum Annual Payment Amount (less any portion of the Maximum Annual Payment Amount utilized to make Investments pursuant to Section 8.02(o) or to prepay or otherwise satisfy Indebtedness pursuant to Section 8.11(a)(iv))Payment.

Restricted Payments. Declare The Borrower shall not declare or make, or agree to pay for or make, directly or indirectly, any Restricted Payment, or incur permit any obligation (contingent or otherwise) of the Restricted Subsidiaries so to do sodo, except thatthat (i) the Borrower or any of the Restricted Subsidiaries may declare and pay dividends with respect to its equity securities payable solely in additional shares of such equity securities, (ii) any of the Restricted Subsidiaries may declare and pay dividends with respect to its equity securities to the Borrower or any of the other Restricted Subsidiaries, (iii) the Borrower may make, and agree to make, payments on account of liabilities described in each case clause (except vi) of the definition of “Indebtedness” contained herein and permitted by Section 8.06(a)7.1, (iv) so long as the Borrower may declare and pay dividends with respect to its preferred equity securities, (v) if at the time thereof and immediately after giving effect thereto no Default or Event of Default shall have occurred and be continuing (both before continuing, the Borrower may declare and after the making of such Restricted Payment): (a) each Restricted Subsidiary may make pay, and agree to declare and pay, directly or indirectly, Restricted Payments in cash to the Borrower and to wholly-owned Restricted Subsidiaries its common shareholders, (and, in the case of a Restricted Payment by a non-wholly-owned Restricted Subsidiary, to the Borrower and any Restricted Subsidiary and to each other owner of capital stock or other equity interests of such Restricted Subsidiary on a pro rata basis based on their relative ownership interests); (bvi) the Borrower or any of the Restricted Subsidiaries may make, and each Subsidiary may declare agree to make, payments on account of subordinated Indebtedness described in clause (iii) of the definition of “Restricted Payments” and make dividend payments or other distributions payable solely in permitted by the common stock or other common Equity Interests of such Person; subordination terms applicable thereto and (cvii) the Borrower and each Subsidiary may purchase, redeem or otherwise acquire shares of its common stock or other repurchase common Equity Interests or warrants common stock options from present or options to acquire any former officers, directors or employees (or heirs of, estates of or trusts formed such shares in connection with customary employee or management agreements, plans or arrangements; (dpersons) the Borrower shall be permitted to make Restricted Payments in the form of cash dividends to the shareholders of the Borrower in an or any Subsidiary upon the death, disability, retirement or termination of employment of such officer, director or employee or pursuant to the terms of any stock option plan or like agreement; provided, however, that the aggregate amount in any fiscal year not to exceed $10,000,000; provided that, any amount of cash dividends permitted to be paid by payments under this clause (dvii) but shall not paid in respect of any fiscal year commencing on or after October 1, 2006, may be carried forward and paid in any subsequent fiscal year; (e) the Borrower and each Subsidiary shall be permitted to make other Restricted Payments in the form of cash dividends, distributions, purchases, redemptions or other acquisitions of or with respect to shares of its common stock or other common Equity Interests either (i) if at the time of making such Restricted Payment the Consolidated Leverage Ratio (calculated on a pro forma basis giving effect to such Restricted Payment and any Indebtedness incurred in connection therewith and any other relevant factor, all in accordance with Sections 1.04(c) and (d)) is not greater than 3.50 to 1.00, on an unlimited basis, and (ii) if at the time of making such Restricted Payment the Consolidated Leverage Ratio (calculated on a pro forma basis giving effect to such Restricted Payment and any Indebtedness incurred in connection therewith and any other relevant factor, all in accordance with Sections 1.04(c) and (d)) is greater than 3.50 to 1.00 but less than the maximum permitted level for the most recently ended fiscal quarter set forth in Section 8.12(a), in an amount exceed $2,000,000 in any fiscal year of the Borrower not greater than the Maximum Annual Payment Amount (less any portion of the Maximum Annual Payment Amount utilized to make Investments pursuant to Section 8.02(o) or to prepay or otherwise satisfy Indebtedness pursuant to Section 8.11(a)(iv))Borrower.

Restricted Payments. Declare or make, or agree to declare or make, directly or indirectly, any Restricted PaymentPayment (including pursuant to any Synthetic Purchase Agreement), or incur any obligation (contingent or otherwise) to do so; provided, except thathowever, in each case that as of the date of any such Restricted Payment and after giving effect thereto, (except Section 8.06(a)i) any Restricted Subsidiary may declare and pay dividends or make other distributions ratably to its equity holders, (ii) so long as no Event of Default or Default shall have occurred and be continuing or would result therefrom, the Borrower may repurchase its Equity Interests owned by employees of the Borrower or the Subsidiaries or make payments to employees of the Borrower or the Subsidiaries upon termination of employment in connection with the exercise of stock options, stock appreciation rights or similar equity incentives or equity based incentives pursuant to management incentive plans or in connection with the death or disability of such employees, (iii) the Borrower may make other Restricted Payments in an aggregate amount when combined with all payments made pursuant to Section 6.07(a)(vi) not to exceed $175,000,000 and (iv) the Borrower may make other Restricted Payments in an aggregate amount not to exceed the Cumulative Credit Amount; provided, that (x) in the case of clause (i), to the extent any such dividends or distributions consist of Real Estate Collateral Property, (1) the Borrower provides at least 15 Business Days prior written notice thereof (or such shorter notice as the Administrative Agent may approve) identifying such Real Estate Collateral Property, (2) such Real Estate Collateral Property is distributed subject in all respects to the Mortgage thereon and such Mortgage remains a valid first priority lien on such Real Estate Collateral Property so distributed and (3) the Borrower shall have delivered to the Administrative Agent such documents and other information evidencing that such Real Estate Collateral Property was distributed subject to the Mortgage thereon as the Administrative Agent may reasonably request; (y) in the case of clause (iv), the Total Leverage Ratio of the Borrower shall not exceed 3.50:1.00 on a pro forma basis after giving effect to such payment; and (z) in the case of clauses (iii) and (iv), at the time of the declaration and making of such Restricted Payment, (A) both before and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing and (both before and after the making of such Restricted Payment): (a) each Restricted Subsidiary may make Restricted Payments to the Borrower and to wholly-owned Restricted Subsidiaries (and, in the case of a Restricted Payment by a non-wholly-owned Restricted Subsidiary, to the Borrower and any Restricted Subsidiary and to each other owner of capital stock or other equity interests of such Restricted Subsidiary on a pro rata basis based on their relative ownership interests); (b) the Borrower and each Subsidiary may declare and make dividend payments or other distributions payable solely in the common stock or other common Equity Interests of such Person; (c) the Borrower and each Subsidiary may purchase, redeem or otherwise acquire shares of its common stock or other common Equity Interests or warrants or options to acquire any such shares in connection with customary employee or management agreements, plans or arrangements; (dB) the Borrower shall be permitted have delivered a certificate of a Responsible Officer, certifying as to make Restricted Payments in compliance with the form of cash dividends remaining availability pursuant to clause (iii) and the shareholders usage of the Borrower in an aggregate amount in any fiscal year not to exceed $10,000,000; provided thatCumulative Credit Amount, any amount as applicable, and the satisfaction of cash dividends permitted to be paid by this clause the foregoing clauses (d) but not paid in respect of any fiscal year commencing on or after October 1, 2006, may be carried forward and paid in any subsequent fiscal year; (e) the Borrower and each Subsidiary shall be permitted to make other Restricted Payments in the form of cash dividends, distributions, purchases, redemptions or other acquisitions of or with respect to shares of its common stock or other common Equity Interests either (i) if at the time of making such Restricted Payment the Consolidated Leverage Ratio (calculated on a pro forma basis giving effect to such Restricted Payment and any Indebtedness incurred in connection therewith and any other relevant factor, all in accordance with Sections 1.04(cy) and (dz)(A)) is not greater than 3.50 to 1.00, on an unlimited basisas applicable, and (ii) if at the time of making such Restricted Payment the Consolidated Leverage Ratio (calculated on a pro forma basis giving effect to such Restricted Payment and any Indebtedness incurred containing reasonably detailed calculations in connection therewith and any other relevant factor, all in accordance with Sections 1.04(c) and (d)) is greater than 3.50 to 1.00 but less than the maximum permitted level for the most recently ended fiscal quarter set forth in Section 8.12(a)support thereof, in an amount in any fiscal year of form and substance satisfactory to the Borrower not greater than the Maximum Annual Payment Amount (less any portion of the Maximum Annual Payment Amount utilized to make Investments pursuant to Section 8.02(o) or to prepay or otherwise satisfy Indebtedness pursuant to Section 8.11(a)(iv))Administrative Agent.

Restricted Payments. Declare The MLP and the Borrower will not, and will not permit any of their Restricted Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur except: (a) Restricted Payments by the MLP up to the amount of Available Cash; provided that both before and after giving effect to any obligation Restricted Payment made pursuant to this subsection (contingent or otherwisea), (i) to do so, except that, in each case (except Section 8.06(a)) so long as no Default or Event of Default shall have occurred and or be continuing and (ii) the Borrower shall be in compliance with the Incurrence Test, as demonstrated by a Pro Forma Compliance Certificate delivered to the Administrative Agent; (b) Restricted Payments made by (i) the Borrower to the MLP, and (ii) any Restricted Subsidiary to the Borrower or to another Restricted Subsidiary that is a wholly-owned Subsidiary of the Borrower; (c) Restricted Payments made by any Restricted Subsidiary to the owners of the Capital Stock of such Restricted Subsidiary, pro rata based on the ownership of Capital Stock of such Restricted Subsidiary; (d) Restricted Payments payable by the MLP, the Borrower or any Restricted Subsidiary solely in interests of any of its Capital Stock other than Disqualified Capital Stock; (e) repurchases, redemptions or other acquisitions or retirements for value of (or Restricted Payment to the MLP to permit the MLP to repurchase, redeem or otherwise acquire or retire) any Capital Stock of the MLP, the Borrower or any of its Restricted Subsidiaries held by any current or former officer, director, consultant, or employee of the MLP, the Borrower or any Subsidiary of the Borrower or, to the extent such Capital Stock was issued as compensation for services rendered on behalf of the MLP, the Borrower or any other Loan Party, any employee of the MLP, pursuant to any equity subscription agreement, stock option agreement, shareholders’, members’ or partnership agreement or similar agreement, plan or arrangement or any Plan and the Borrower and Restricted Subsidiaries may declare and pay Restricted Payments to the MLP, the Borrower or any other Restricted Subsidiary of the Borrower the proceeds of which are used for such purposes; provided, that the aggregate amount of such purchases or redemptions in cash under this Section 7.5(e) shall not exceed in any fiscal year $5,000,000 (plus the amount of net proceeds received by the MLP or the Borrower during such calendar year from sales of Capital Stock of the MLP to directors, consultants, officers or employees of the MLP, the Borrower or any of its Affiliates in connection with permitted employee compensation and incentive arrangements); provided that both before and after giving effect to any Restricted Payment made pursuant to this subsection (e), (i) no Default or Event of Default shall have occurred or be continuing and (ii) the making of such Restricted Payment):Borrower shall be in compliance with the Incurrence Test; (af) each payment of management fees permitted to be paid pursuant to Section 7.7; provided that both before and after giving effect to any Restricted Subsidiary Payment made pursuant to this subsection (f), (i) no Default or Event of Default shall have occurred or be continuing and (ii) the Borrower shall be in compliance with the Incurrence Test; (g) any payments of principal and interest with respect to Indebtedness subordinated in right of payment to the Obligations, but only to the extent that such payments are permitted pursuant to the applicable subordination agreement and payments of principal, interest, fees and premiums thereon funded with proceeds of a Permitted Refinancing permitted pursuant to Section 7.1; and (h) the MLP, the Borrower and the Restricted Subsidiaries may make Restricted Payments to allow the Borrower and to wholly-owned Restricted Subsidiaries (andpayment of cash in lieu of the issuance of fractional shares upon the exercise of options or, in the case of a Restricted Payment by a non-wholly-owned Restricted Subsidiary, to the Borrower and any Restricted Subsidiary and to each other owner of capital stock or other equity interests of such Restricted Subsidiary on a pro rata basis based on their relative ownership interests); (b) the Borrower and each Subsidiary may declare and make dividend payments or other distributions payable solely in the common stock or other common Equity Interests of such Person; (c) the Borrower and each Subsidiary may purchase, redeem or otherwise acquire shares of its common stock or other common Equity Interests or warrants or options to acquire any such shares in connection with customary employee rights or management agreements, plans upon the conversion or arrangements; (d) the Borrower shall be permitted to make Restricted Payments in the form exchange of cash dividends to the shareholders or into Capital Stock of the Borrower in an aggregate amount in any fiscal year not to exceed $10,000,000; provided that, any amount of cash dividends permitted to be paid by this clause (d) but not paid in respect of any fiscal year commencing on or after October 1, 2006, may be carried forward and paid in any subsequent fiscal year; (e) the Borrower and each Subsidiary shall be permitted to make other Restricted Payments in the form of cash dividends, distributions, purchases, redemptions or other acquisitions of or with respect to shares of its common stock or other common Equity Interests either (i) if at the time of making such Restricted Payment the Consolidated Leverage Ratio (calculated on a pro forma basis giving effect to such Restricted Payment and any Indebtedness incurred in connection therewith and any other relevant factor, all in accordance with Sections 1.04(c) and (d)) is not greater than 3.50 to 1.00, on an unlimited basis, and (ii) if at the time of making such Restricted Payment the Consolidated Leverage Ratio (calculated on a pro forma basis giving effect to such Restricted Payment and any Indebtedness incurred in connection therewith and any other relevant factor, all in accordance with Sections 1.04(c) and (d)) is greater than 3.50 to 1.00 but less than the maximum permitted level for the most recently ended fiscal quarter set forth in Section 8.12(a), in an amount in any fiscal year of the Borrower not greater than the Maximum Annual Payment Amount (less any portion of the Maximum Annual Payment Amount utilized to make Investments pursuant to Section 8.02(o) or to prepay or otherwise satisfy Indebtedness pursuant to Section 8.11(a)(iv))MLP.

Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that, in each case (except Section 8.06(a)) so long as no Default or Event of Default shall have occurred and be continuing (both before and after the making of such Restricted Payment): (a) each Restricted Subsidiary may make Restricted Payments to the Borrower and to wholly-owned Restricted Subsidiaries (and, in the case of a Restricted Payment by a non-wholly-owned Restricted Subsidiary, to the Borrower and any Restricted Subsidiary and to each other owner of capital stock or other equity interests of such Restricted Subsidiary on a pro rata basis based on their relative ownership interests); (b) the Borrower and each Subsidiary may declare and make dividend payments or other distributions payable solely in the common stock or other common Equity Interests of such Person; (c) the Borrower and each Subsidiary may purchase, redeem or otherwise acquire shares of its common stock or other common Equity Interests or warrants or options to acquire any such shares in connection with customary employee or management agreements, plans or arrangements; (d) the Borrower shall be permitted to make Restricted Payments in the form of cash dividends to the shareholders of the Borrower in an aggregate amount in any fiscal year not to exceed $10,000,000; provided that, any amount of cash dividends permitted to be paid by this clause (d) but not paid in respect of any fiscal year commencing on or after October 1, 2006, may be carried forward and paid in any subsequent fiscal year;; and (e) the Borrower and each Subsidiary shall be permitted to make other Restricted Payments in the form of cash dividends, distributions, purchases, redemptions or other acquisitions of or with respect to shares of its common stock or other common Equity Interests either (i) on an unlimited basis if at the time of making such Restricted Payment the Consolidated Leverage Ratio (calculated on a pro forma basis giving effect to such Restricted Payment and any Indebtedness incurred in connection therewith and any other relevant factor, all in accordance with Sections 1.04(c) and (d), as applicable) is not greater than 3.50 2.50 to 1.00, on an unlimited basis, and (ii) if at the time of making such Restricted Payment the Consolidated Leverage Ratio (calculated on a pro forma basis giving effect to such Restricted Payment and any Indebtedness incurred in connection therewith and any other relevant factor, all in accordance with Sections 1.04(c) and (d)) is greater than 3.50 to 1.00 but less than the maximum permitted level for the most recently ended fiscal quarter set forth in Section 8.12(a), in an amount in any fiscal year of the Borrower not greater than the Maximum Annual Payment Amount (less any portion of the Maximum Annual Payment Amount utilized to make Investments pursuant to Section 8.02(o) or to prepay or otherwise satisfy Indebtedness pursuant to Section 8.11(a)(iv)).

Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that: (a) the Borrower may (i) make Restricted Payments in the form of Equity Interests (other than Disqualified Equity Interests) of the Borrower and (ii) redeem in whole or in part any of its Equity Interests for another class of Equity Interests (other than Disqualified Equity Interests) of the Borrower; (b) the Borrower may make repurchases or redemptions of its Equity Interests issued to directors, officers, or employees of the Borrower or any Subsidiary in each case an amount not exceeding $750,000 in the aggregate for any Fiscal Year (except Section 8.06(awith no carryover of unused amounts to subsequent Fiscal Years)) so long as ; provided no Default or Event of Default shall have occurred and be continuing (both before and after the making of such Restricted Payment): (a) each Restricted Subsidiary may make Restricted Payments to the Borrower and to wholly-owned Restricted Subsidiaries (and, in the case of a Restricted Payment by a non-wholly-owned Restricted Subsidiary, to the Borrower and any Restricted Subsidiary and to each other owner of capital stock or other equity interests of such Restricted Subsidiary on a pro rata basis based on their relative ownership interests)would result therefrom; (bc) the Borrower each Loan Party and each Restricted Subsidiary may declare and make dividend payments or other distributions payable solely in the common stock or other common Equity Interests of such Person; (cd) the Borrower and each a Restricted Subsidiary may purchasepay dividends (or, redeem in the case of any partnership or otherwise acquire shares limited liability company, any similar distribution) to the holders of its common stock or other common Equity Interests or warrants or options to acquire any such shares in connection with customary employee or management agreements, plans or arrangements; (d) the Borrower shall be permitted to make Restricted Payments in the form of cash dividends to the shareholders of the Borrower in an aggregate amount in any fiscal year not to exceed $10,000,000; provided that, any amount of cash dividends permitted to be paid by this clause (d) but not paid in respect of any fiscal year commencing on or after October 1, 2006, may be carried forward and paid in any subsequent fiscal yeara pro rata basis; (e) the Borrower and each Subsidiary its Restricted Subsidiaries may make Restricted Payments pursuant to and in accordance with stock option plans or other benefit plans for management, employees and service providers of the Borrower and its Subsidiaries; (f) the Borrower may redeem its Equity Interests pursuant to a Grantor Trust Equity Transfer; provided that the amount of Cash distributed in any such redemptions shall not exceed $500,000 in the aggregate; and (g) Restricted Payments shall be permitted to make other Restricted Payments in the form of cash dividends, distributions, purchases, redemptions or other acquisitions of or with respect to shares of its common stock or other common Equity Interests either (i) if at the time of making such Restricted Payment the Consolidated Leverage Ratio (calculated on a pro forma basis giving effect to such Restricted Payment and any Indebtedness incurred in connection therewith and any other relevant factor, all in accordance with Sections 1.04(c) and (d)) is not greater than 3.50 to 1.00, on an unlimited basis, and (ii) if at the time of making such Restricted Payment the Consolidated Leverage Ratio (calculated on a pro forma basis giving effect to such Restricted Payment and any Indebtedness incurred in connection therewith and any other relevant factor, all in accordance with Sections 1.04(c) and (d)) is greater than 3.50 to 1.00 but less than the maximum permitted level for the most recently ended fiscal quarter set forth in Section 8.12(a), in an amount in any fiscal year purpose of the Borrower not greater than the Maximum Annual Payment Amount (less any portion of the Maximum Annual Payment Amount utilized to make Investments pursuant to Section 8.02(o) consummating a Holding Company Transaction or to prepay or otherwise satisfy Indebtedness pursuant to Section 8.11(a)(iv))Qualified Public Offering Reorganization Transactions.

Restricted Payments. Declare Each Obligor will not, nor will it permit any of its Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent bonus or otherwise) incentive awards payments to do soGlobal Partners, except that (a) any Obligor and any of its Subsidiaries may make Restricted Payments to, directly or indirectly, purchase its Equity Interests (including related stock appreciation rights, restricted stock units or similar securities) from its present or former officers, partners, members, directors, consultants, agents or employees (or their estates, family members or former spouses) upon the death, disability, retirement or termination of the applicable officer, partner, member, director, consultant, agent or employee or pursuant to any equity subscription agreement, stock option or equity incentive award agreement, shareholders’ or members’ agreement or similar agreement, plan or arrangement; provided that the aggregate amount of payments under this clause (a) in each case any fiscal year of the Borrowers shall not exceed the sum of $10,000,000 (except Section 8.06(a)which shall increase to $20,000,000 after the Qualified IPO Date) plus (ii) any proceeds received from key man life insurance policies plus (iii) the amount of any bona fide cash bonuses otherwise payable to members of management, directors or consultants of the Obligors and their Subsidiaries in connection with the Transactions that are foregone in return for the receipt of Equity Interests the fair market value of which is equal to or less than the amount of such cash bonuses; provided further that any Restricted Payments permitted (but not made) pursuant to this clause (a) in any prior fiscal year may be carried forward to any subsequent calendar year; (b) any Subsidiary of any Obligor may make Restricted Payments to any wholly-owned Subsidiary of any Obligor; (c) any Subsidiary of the Obligors may make distributions to its limited partners and other Subsidiaries of the Obligors pursuant to and in accordance with such Subsidiary’s organizational documents; (d) the Borrowers may make Restricted Payments from Carried Interest received by the Borrowers so long as as, immediately before and after giving effect to such Restricted Payment, no Payment Default or Event of Default shall have occurred and be continuing continuing; (both e) any Obligor may make bonus or incentive awards payments to any Global Partner so long as, immediately before and after giving effect to such payment, no Event of Default shall have occurred and be continuing; (f) in respect of any period during which any Obligor qualifies as a partnership for U.S. federal and state income tax purposes, such Obligor shall be permitted to distribute to owners of any Equity Interests thereof with respect to each fiscal year of such Obligor an aggregate cash amount equal to the making product of (a) the amount of taxable income allocated by such Obligor to such owners for such fiscal year, as reduced by any available carryforwards of net operating losses, capital losses, and similar items (collectively, “Available Carryforwards”), but, in respect of any fiscal year ending after the Amendment Effective Date, only to the extent such Available Carryforwards arise out of a loss or similar item realized by such Obligor on or after Amendment Effective Date, calculated by assuming that each such owner elects to carry forward such items and that such owner’s only income, gain, deductions, losses and similar items are those allocated to such owner by such Obligor and taking into account such limitations as the limitation on the deductibility of capital, multiplied by (b) the highest effective combined federal, state and local income tax rate applicable during such Fiscal Year to a natural person residing in New York, New York taxable at the highest marginal federal income tax rate and the highest marginal income tax rates (after giving effect to the federal income tax deduction for such State and local income taxes and without taking into account the effects of Sections 67 and 68 of the Code), provided that (i) any such payment shall be permitted only if, immediately before and after giving effect to such payment, no Payment Default or Bankruptcy Event of Default shall have occurred and be continuing and (ii) with respect to any fiscal year ending after the Amendment Effective Date, the amount of taxable income referred to in clause (a) above shall only be reduced by an amount equal to 75% of Available Carryforwards; (g) the Obligors may make a Restricted Payment to the owners of Equity Interests thereof in an amount equal to the excess of (i) the aggregate amount of actual tax payments made by the Affected Carlyle Owners for the fiscal year 2009 over (ii) the aggregate amount of distributions previously made to the Affected Carlyle Owners pursuant to Section 7.06(f) of the Existing Credit Agreement for such fiscal year, provided that (i) such Restricted Payment shall be permitted only if, immediately before and after giving effect to such Restricted Payment): , no Payment Default or Bankruptcy Event of Default shall have occurred and be continuing and (aii) each Restricted Subsidiary may make Restricted Payments to the Borrower and to wholly-owned Restricted Subsidiaries (and, in the case of a only one such Restricted Payment by a non-wholly-owned Restricted Subsidiary, shall be permitted pursuant to the Borrower and any Restricted Subsidiary and to each other owner of capital stock or other equity interests of such Restricted Subsidiary on a pro rata basis based on their relative ownership intereststhis paragraph (g); (bi) the Borrower and each Subsidiary any Obligor may declare and make dividend payments or other distributions payable solely in the common stock or other common Equity Interests of such Person; (c) the Borrower and each Subsidiary may purchase, redeem or otherwise acquire shares of its common stock or other common Equity Interests or warrants or options to acquire any such shares in connection with customary employee or management agreements, plans or arrangements; (d) the Borrower shall be permitted to make Restricted Payments in the form of cash dividends Equity Interests of such Obligor and (ii) any Subsidiary of any Obligor may make Restricted Payments to any Obligor or any Subsidiary of any Obligor in the form of Equity Interests of such Subsidiary; (i) any Obligor or any of their Subsidiaries may make bonus payments on account of Carried Interest received from Carlyle Japan Partners II, L.P. (or any successor fund with a similar organization) in lieu of Carried Interest; provided that any such distribution may be made only to the shareholders of the Borrower in an aggregate amount in any fiscal year not to exceed $10,000,000; provided that, any amount of cash dividends permitted to be paid by this extent that a distribution could have been made under clause (d) but not paid in respect of any fiscal year commencing on or after October 1, 2006, may be carried forward and paid in any subsequent fiscal yearabove; (ej) any Obligor or any of their Subsidiaries may make Restricted Payments on account of Deal Team Interest to members, partners, employees, contractors or advisors of the Borrowers or any of their Affiliates; (k) the Borrower and each Subsidiary shall be permitted to Obligors may make other Restricted Payments from the Net Cash Proceeds of any sale or sales of Equity Interests of the Obligors; (l) the Obligors or any of their Subsidiaries may make Investments permitted pursuant to Section 7.05(j); (m) the Obligors may make a Restricted Payment from the Net Cash Proceeds of any incurrence of Subordinated Indebtedness; (n) any Subsidiary that is not wholly-owned by the Obligors may make a Restricted Payment to the holders of the Equity Interests in the form of cash dividends, distributions, purchases, redemptions or other acquisitions of or such Subsidiary on a pro rata basis for all such holders with respect to shares both the amount and form of its common stock or other common Equity Interests either such Restricted Payment; (o) the Obligors may make a Restricted Payment of the type described in Section 6.08(b)(i) from (i) if at the time proceeds of making such Restricted Payment any Revolving Credit Loan to the Consolidated Leverage Ratio (calculated on a pro forma basis giving effect to such Restricted Payment and any Indebtedness incurred in connection therewith and any other relevant factor, all in accordance with Sections 1.04(cextent permitted by Section 6.08(b) and (d)) is not greater than 3.50 to 1.00, on an unlimited basis, and (ii) if at cash and Permitted Investments, the time source of making such which is business operations and not from the incurrence of any Indebtedness; and (p) the Obligors may make Restricted Payments (other than a Restricted Payment of the Consolidated Leverage Ratio (calculated on a pro forma basis giving effect to such Restricted Payment and any Indebtedness incurred type described in connection therewith and any other relevant factor, all in accordance with Sections 1.04(c) and (dSection 6.08(b)(i)) is greater than 3.50 required to 1.00 but less than effect the maximum permitted level for the most recently ended fiscal quarter set forth in Section 8.12(a), in an amount in any fiscal year of the Borrower not greater than the Maximum Annual Payment Amount (less any portion of the Maximum Annual Payment Amount utilized to make Investments pursuant to Section 8.02(o) or to prepay or otherwise satisfy Indebtedness pursuant to Section 8.11(a)(iv))Company Reorganization.

Restricted Payments. Declare Make or makecommit itself to make or declare any Restricted Payment at any time, directly or indirectlyprovided that: (a) each Subsidiary may make Capital Distributions to the Borrower, any Restricted PaymentSubsidiaries of the Borrower that are Guarantors and any other Person that owns a direct Equity Interest in such Subsidiary, or incur any obligation ratably according to their respective holdings of the type of Equity Interest in respect of which such Capital Distribution is being made; (contingent or otherwise) to do so, except that, in each case (except Section 8.06(a)b) so long as no Default or Event of Default shall have has occurred and be is continuing (both before and after the making of such Restricted Payment): (a) each Restricted Subsidiary may make Restricted Payments to or would result therefrom, the Borrower and to wholly-owned Restricted its Subsidiaries may make payment of current interest, expenses and indemnities in respect of Subordinated Indebtedness (and, in other than any such payments prohibited by the case of a Restricted Payment by a non-wholly-owned Restricted Subsidiary, to the Borrower and any Restricted Subsidiary and to each other owner of capital stock or other equity interests of such Restricted Subsidiary on a pro rata basis based on their relative ownership interestssubordination provisions applicable thereto); (b) the Borrower and each Subsidiary may declare and make dividend payments or other distributions payable solely in the common stock or other common Equity Interests of such Person; (c) the Borrower and each Subsidiary may purchase, redeem or otherwise acquire shares make Restricted Payments with the proceeds received from the substantially concurrent issue of its common stock or other new common Equity Interests or warrants or options to acquire any such shares in connection with customary employee or management agreements, plans or arrangementsInterests; (d) the Borrower shall be permitted to and its Subsidiaries may make Restricted Payments in not otherwise permitted by this Section, so long as (i) no Default has occurred and is continuing or would result therefrom, (ii) after giving effect thereto the form of cash dividends to the shareholders of the Borrower in an aggregate amount in any fiscal year not of all Restricted Payments made pursuant to exceed $10,000,000; provided that, any amount of cash dividends permitted to be paid by this clause (d) but and Investments made pursuant to Section 7.03(a)(xiv), shall not paid exceed sum of (1) $25,000,000 plus (2) the Cumulative Retained Excess Cash Flow Amount, (iii) the Administrative Agent shall have received the certificate required by Section 6.02(n) and (iv) after giving pro forma effect to such Restricted Payment (and to any Indebtedness incurred in respect of any fiscal year commencing on or after October 1connection therewith), 2006, may the Borrower and its Subsidiaries shall be carried forward and paid in any subsequent fiscal yearcompliance with the Pro Forma Leverage Test; (e) the Borrower and each Subsidiary shall be permitted to may make other Restricted Payments Capital Distributions, consistent with its past practice, in the form of cash dividendsdividends to shareholders of Equity Interests in the Borrower; provided that (i) the aggregate amount of all such Capital Distributions shall not exceed $2,500,000 per fiscal quarter of the Borrower; and (ii) no Default shall have occurred and be continuing or would result from any such Capital Distribution; (f) the Borrower and its Subsidiaries may make Restricted Payments constituting a prepayment of Indebtedness in connection with the Refinancing of such Indebtedness; (g) so long as no Default has occurred and is continuing or would result therefrom, distributionseach of Autocam do Brasil Usinagem, purchasesLTDA, redemptions or other acquisitions Bouverat Industries S.A.S., and Autocam France, SARL may at any time repay its respective Indebtedness set forth on Schedule 7.02; (h) the Borrower and its Subsidiaries may make payment of or current interest, expenses and indemnities in respect of the New Notes; and (i) the Borrower and its Subsidiaries may make Restricted Payments with respect to shares of its common stock or other common Equity Interests either the New Notes not otherwise permitted by this Section, so long as (i) if at the time of making no Default has occurred and is continuing or would result therefrom, and (ii) after giving pro forma effect to such Restricted Payment (and to any Indebtedness incurred in connection therewith), the Consolidated Secured Leverage Ratio of Borrower and its Subsidiaries shall be equal to or less than 2.00 to 1.00, determined based on the financial information received for the fiscal quarter (calculated on a pro forma basis or fiscal year, as applicable) most recently ended prior to such date for which financial statements have been delivered to the Administrative Agent pursuant to Section 4.01(a)(x), 6.01(a) or 6.01(b), as applicable, after giving effect to such Restricted Payment and any Indebtedness incurred in connection therewith and any other relevant factor, all in accordance with Sections 1.04(c) and (d)) is not greater than 3.50 to 1.00, on an unlimited basis, and (ii) if at the time of making such Restricted Payment the Consolidated Leverage Ratio (calculated on a pro forma basis giving effect to such Restricted Payment and any Indebtedness incurred in connection therewith and any other relevant factor, all in accordance with Sections 1.04(c) and (d)) is greater than 3.50 to 1.00 but less than the maximum permitted level for the most recently ended fiscal quarter set forth in Section 8.12(a), in an amount in any fiscal year of the Borrower not greater than the Maximum Annual Payment Amount (less any portion of the Maximum Annual Payment Amount utilized to make Investments pursuant to Section 8.02(o) or to prepay or otherwise satisfy Indebtedness pursuant to Section 8.11(a)(iv))Payments.

Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that, in each case (except Section 8.06(a)) so long as no Default or Event of Default shall have occurred and be continuing (both before and after at the making time of such Restricted Payment):any action described below or would result therefrom: (a) each Restricted Subsidiary may make Restricted Payments to any Person that owns Equity Interests in such Subsidiary, ratably according to their respective holdings of the Borrower and to wholly-owned Restricted Subsidiaries (and, type of Equity Interest in the case respect of a which such Restricted Payment by a non-wholly-owned Restricted Subsidiary, to the Borrower and any Restricted Subsidiary and to each other owner of capital stock or other equity interests of such Restricted Subsidiary on a pro rata basis based on their relative ownership interests)is being made; (b) the Borrower and each Subsidiary may declare and make dividend payments or other distributions Restricted Payments payable solely in the common stock or other common Equity Interests of such Person; (c) the Borrower and each Subsidiary may purchasemake Restricted Payments, redeem provided all of the following conditions are satisfied: (i) no Default or otherwise acquire shares Event of its common Default has occurred and is continuing or would arise as a result of such Restricted Payment, (ii) at the time of such Restricted Payment, the Loan Parties shall be in Pro Forma Compliance, and (iii) if the Consolidated Senior Leverage Ratio (determined on a Pro Forma Basis after giving effect to such Restricted Payment) is equal to or greater than 1.75 to 1.00, the amount of all such Restricted Payments pursuant to this clause (iii) shall not exceed $50,000,000 in the aggregate (plus an additional $50,000,000 to the extent such additional amount is used to purchase treasury stock with the proceeds of Swap Contracts upon the payout, maturity or other common Equity Interests or warrants or options to acquire any such shares in connection with customary employee or management agreements, plans or arrangementstermination thereof); (d) the Borrower shall be permitted to make Restricted Payments in the form of cash dividends to the shareholders of the Borrower in an aggregate amount in any fiscal year not to exceed $10,000,000; provided that, any amount of cash dividends permitted to be paid by this clause (d) but not paid in respect of any fiscal year commencing on or after October 1, 2006, may be carried forward and paid in any subsequent fiscal yearreserved; (e) the Borrower Loan Parties may pay, as and each Subsidiary shall be permitted to make other Restricted Payments in the form of cash dividendswhen due and payable, distributions, purchases, redemptions or other acquisitions of or interest payments required with respect to shares the Convertible Notes and any Permitted Convertible Note Refinancings; (f) subject to the terms of its common stock or other common any applicable subordination agreement, the Loan Parties may pay, as and when due and payable, interest payments required with respect to any Subordinated Debt permitted hereunder; (g) the Borrower may repurchase Equity Interests either issued by it, which redemption is deemed to occur upon (i) the exercise of stock options if at the time Equity Interests represent a portion of making the exercise price thereof or (ii) the withholding of a portion of Equity Interests issued to employees and other participants under an equity compensation program of the Borrower or its Subsidiaries, in each case to cover tax obligations of such persons in respect of such issuance; (h) the Borrower may redeem from officers, directors, employees and consultants Equity Interests provided all of the following conditions are satisfied: (i) no Default or Event of Default has occurred and is continuing or would arise as a result of such Restricted Payment the Consolidated Leverage Ratio Payment; (calculated on a pro forma basis ii) after giving effect to such Restricted Payment Payment, the Loan Parties are in Pro Forma Compliance; (iii) the aggregate Restricted Payments and notes issued in lieu of any Indebtedness incurred in connection therewith and any other relevant factor, all in accordance with Sections 1.04(c) and (d)) is not greater than 3.50 to 1.00, on an unlimited basis, and (ii) if at the time of making such Restricted Payment the Consolidated Leverage Ratio permitted (calculated on a pro forma basis giving effect to such Restricted Payment and any Indebtedness incurred in connection therewith and any other relevant factor, all in accordance with Sections 1.04(cx) and (d)) is greater than 3.50 to 1.00 but less than the maximum permitted level for the most recently ended fiscal quarter set forth in Section 8.12(a), in an amount in any fiscal year of the Borrower shall not greater than exceed $2,500,000 and (y) during the Maximum Annual Payment Amount term of this Agreement shall not exceed $5,000,000; and (less iv) after giving effect to such Restricted Payment, the aggregate principal amount of Revolving Loans available to be borrowed under Section 2.01 hereof shall be at least $15,000,000; (i) the Borrower may (i) to the extent constituting a Restricted Payment, effect the conversion of any portion Convertible Notes and Permitted Convertible Notes Refinancings into Equity Interests, (ii) settle conversions of Convertible Notes and Permitted Convertible Notes Refinancings in accordance with the applicable Convertible Indebtedness Documents or the documents evidencing the Permitted Convertible Notes Refinancings and (iii) repurchase fractional shares of any Equity Interests arising out of the Maximum Annual Payment Amount utilized conversion of securities convertible (including the Convertible Notes and Permitted Convertible Notes Refinancings) into any such Equity Interests; (j) Loan Parties may (i) repurchase or repay any Convertible Notes and Permitted Convertible Notes Refinancings (x) at the maturity thereof or otherwise, that the Loan Parties are required to repurchase or repay in accordance with the applicable Convertible Indebtedness Documents or the documents evidencing the Permitted Convertible Notes Refinancings or, with respect to the 2021 Convertible Notes, prior to such maturity or other required date of repurchase or repayment in anticipation thereof, and (y) in connection with a Permitted Convertible Note Refinancing, as the case may be, and (ii) make Investments pursuant Restricted Payments in respect of any Swap Contracts existing as of the date hereof or entered into in connection with any Permitted Convertible Notes Refinancing or any Indebtedness issued under Section 7.02(n); and (k) The Loan Parties may refinance any Junior Debt with the net cash proceeds of other Junior Debt or Equity Interests (excluding any Disqualified Stock); provided that the amount of such Junior Debt is not increased at the time of such refinancing to the extent such increase would cause a breach of Section 8.02(o) 7.02, except by an amount equal to a reasonable premium or to prepay other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and the direct or otherwise satisfy Indebtedness pursuant to Section 8.11(a)(iv))any contingent obligor with respect thereto is not changed, as a result of or in connection with such refinancing.

Restricted Payments. Declare The Borrower will not, and will not permit any Subsidiary to, declare or make, directly or indirectly, make any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that: (i) each Subsidiary may declare and make Restricted Payments to any Person that owns an Equity Interest in such Subsidiary, ratably according to their respective holdings of such Equity Interests in respect of which such Restricted Payment is being made; (ii) the Borrower and each case Subsidiary may declare and make Restricted Payments payable solely in common Equity Interests of such Person; (except Section 8.06(aiii) any Subsidiary may declare and make Restricted Payments to (x) the Borrower or (y) any other Subsidiary which is a direct or indirect parent company of such Subsidiary; (iv) the Borrower and each Subsidiary may purchase, redeem or otherwise acquire Equity Interests issued by it with the proceeds received from the substantially concurrent issue of new common Equity Interests if after giving effect to such Restricted Payment on a pro-forma basis no Default or Event of Default shall have occurred and be continuing at the time of the declaration of such Restricted Payment; (v) the Borrower may (and any Subsidiary may make Restricted Payments as shall be required for the Borrower to) make Restricted Payments in an amount sufficient to allow (x) the Borrower to pay fees, expenses and indemnities pursuant to the Management Agreement (as in effect on the Restatement Effective Date)) , so long as as, solely with respect to the payment of such fees, no Default or Event of Default shall have occurred and be continuing (both before it being understood that, for so long as any Default or Event of Default has occurred and after is continuing, such fees may continue to accrue and any such accrued fees may be paid upon any and all Defaults and Events of Default ceasing to exist), and (y) to pay general corporate operating and overhead costs and expenses (other than taxes) incurred by the making Borrower in the ordinary course of such Restricted Payment): (a) each Restricted Subsidiary may make Restricted Payments business, to the extent attributable to the ownership or operation of the Borrower and to wholly-owned Restricted Subsidiaries (and, in the case of a Restricted Payment by a non-wholly-owned Restricted Subsidiary, to the Borrower and any Restricted Subsidiary and to each other owner of capital stock or other equity interests of such Restricted Subsidiary on a pro rata basis based on their relative ownership interests);its Subsidiaries. (bvi) the Borrower and each Subsidiary may declare and make dividend payments or other distributions payable solely any Restricted Payments after the date hereof in an amount not to exceed $6,000,000 in the common stock aggregate in any calendar year (with unused amounts in any calendar year being permitted to be carried over and made in any succeeding calendar year), in each case if after giving effect to any such Restricted Payment on a pro-forma basis (1) no Default or other common Equity Interests Event of Default shall have occurred and be continuing at the time of the declaration of such PersonRestricted Payment and (2) the Borrower is in compliance with the covenants set forth in Section 7.11 as of the then most recently ended fiscal quarter of the Borrower; (cvii) the Borrower and any Subsidiary may declare and make any Restricted Payment if after giving effect to such Restricted Payment on a pro-forma basis (1) no Default or Event of Default shall have occurred and be continuing at the time of the declaration of such Restricted Payment, (2) the Borrower is in compliance with the covenants set forth in Section 7.11 and (3) the Consolidated Total Debt to Capitalization Ratio, on a pro forma basis, as of the last day of the most recently ended fiscal period for which financial statements have been delivered or furnished pursuant to Section 4.01(a)(vii), Section 6.01(i) or Section 6.01(ii), as applicable, shall be no greater than 15%; and (viii) after a Qualified IPO, the Borrower and each Subsidiary may purchase, redeem or otherwise acquire shares of its common stock or other common Equity Interests or warrants or options to acquire declare and make any such shares in connection with customary employee or management agreements, plans or arrangements; (d) the Borrower shall be permitted to make Restricted Payments in the form of cash dividends to the shareholders of the Borrower in an aggregate amount in any fiscal year consecutive twelve (12) month period, not to exceed $10,000,000; provided that, any amount 6.0% of cash dividends permitted to be paid by this clause (d) but not paid in respect of any fiscal year commencing on or Market Capitalization if after October 1, 2006, may be carried forward and paid in any subsequent fiscal year; (e) the Borrower and each Subsidiary shall be permitted to make other Restricted Payments in the form of cash dividends, distributions, purchases, redemptions or other acquisitions of or with respect to shares of its common stock or other common Equity Interests either (i) if at the time of making such Restricted Payment the Consolidated Leverage Ratio (calculated on a pro forma basis giving effect to such Restricted Payment on a pro-forma basis (1) no Default or Event of Default shall have occurred and any Indebtedness incurred in connection therewith and any other relevant factor, all in accordance with Sections 1.04(c) and (d)) is not greater than 3.50 to 1.00, on an unlimited basis, and (ii) if be continuing at the time of making such Restricted Payment the Consolidated Leverage Ratio (calculated on a pro forma basis giving effect to declaration of such Restricted Payment and any Indebtedness incurred (2) the Borrower is in connection therewith and any other relevant factor, all compliance with the covenants set forth in accordance with Sections 1.04(c) and (d)) is greater than 3.50 to 1.00 but less than Section 7.11 as of the maximum permitted level for the then most recently ended fiscal quarter set forth in Section 8.12(a), in an amount in any fiscal year of the Borrower not greater than the Maximum Annual Payment Amount (less any portion of the Maximum Annual Payment Amount utilized to make Investments pursuant to Section 8.02(o) or to prepay or otherwise satisfy Indebtedness pursuant to Section 8.11(a)(iv)).Borrower;

Restricted Payments. Declare The Borrower will not, and will not permit any of its Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, except (a) the Borrower may declare and pay dividends with respect to its Equity Interests payable solely in additional shares of its common stock, (b) Subsidiaries may declare and pay dividends ratably with respect to their Equity Interests, (c) the Borrower may make Restricted Payments pursuant to and in accordance with stock option plans or incur any obligation other benefit plans for management or employees of the Borrower and its Subsidiaries, (contingent or otherwise) to do so, except that, in each case (except Section 8.06(a)d) so long as no Default or Event of Default shall have has occurred and is continuing or will result therefrom and so long as the Fixed Charge Coverage Ratio and the Adjusted Leverage Ratio provided in Section 6.11 will not be continuing (both before and after the making of such Restricted Payment): (a) each Restricted Subsidiary may make Restricted Payments to violated as a result thereof, the Borrower and to wholly-owned Restricted Subsidiaries (and, in the case of a Restricted Payment by a non-wholly-owned Restricted Subsidiary, to the Borrower and any Restricted Subsidiary and to each other owner of capital stock or other equity interests of such Restricted Subsidiary on a pro rata basis based on their relative ownership interests); (b) the Borrower and each Subsidiary may declare and make dividend payments or other distributions payable solely in the common stock or other common Equity Interests of such Person; (c) the Borrower pay dividends, and each Subsidiary may purchase, redeem or otherwise acquire shares of its common stock or other common Equity Interests or warrants or options to acquire any such shares in connection with customary employee or management agreements, plans or arrangements; (d) the Borrower shall be permitted to make Restricted Payments in the form of cash dividends to the shareholders of the Borrower in an aggregate amount in any fiscal year not to exceed $10,000,000; provided that, any amount of cash dividends permitted to be paid by this clause (d) but not paid in respect of any fiscal year commencing on or after October 1, 2006, may be carried forward and paid in any subsequent fiscal year; (e) so long as no Default has occurred and is continuing or will result therefrom, the Borrower and each Subsidiary shall be permitted to make other Restricted Payments in the form of cash dividends, distributions, purchases, redemptions or other acquisitions of or with respect to shares of its common stock or other common may repurchase Equity Interests either (i) in any amount if at the time of making such Restricted Payment the Consolidated Adjusted Leverage Ratio (calculated is less than 1.00 to 1.00 on a pro forma basis after giving effect to such Restricted Payment repurchase and the Borrower has Liquidity of not less than $15,000,000 after payment of such repurchase (any Indebtedness incurred in connection therewith and any other relevant factor, all in accordance repurchase made during a fiscal quarter that ends with Sections 1.04(c) and (d)) is not an Adjusted Leverage Ratio of greater than 3.50 1.00 to 1.00, on an unlimited basis, 1.00 shall count against and be subject to the limitation provided in (ii) below), or (ii) in an aggregate amount not exceeding $25,000,000 during any 4 quarter period if at the time of making such Restricted Payment the Consolidated Adjusted Leverage Ratio is less than or equal to 2.00 to 1.00 (calculated but greater than 1.00 to 1.00) on a pro forma basis after giving effect to such Restricted Payment repurchase and the Borrower has Liquidity of not less than $15,000,000 after payment of such repurchase. Notwithstanding (e)(i) above, any Indebtedness incurred in connection therewith and any other relevant factor, all in accordance repurchase made during a fiscal quarter that ends with Sections 1.04(c) and (d)) is an Adjusted Leverage Ratio of greater than 3.50 1.00 to 1.00 but less than 1.00, shall count against and be subject to the maximum permitted level for the most recently ended fiscal quarter set forth $25,000,000 limitation provided in Section 8.12(a), in an amount in any fiscal year of the Borrower not greater than the Maximum Annual Payment Amount (less any portion of the Maximum Annual Payment Amount utilized to make Investments pursuant to Section 8.02(oe)(ii) or to prepay or otherwise satisfy Indebtedness pursuant to Section 8.11(a)(iv))above.

Restricted Payments. Declare The Borrower will not, and will not permit any of its Restricted Subsidiaries to, declare or make, directly or indirectly, any Restricted Payment, except: (i) the payment by the Borrower or incur any obligation Restricted Subsidiary of any dividend or the consummation of any irrevocable redemption within 60 days after the date of declaration thereof or giving the notice of the redemption, if on the date of declaration or notice the payment would have complied with the provisions of the Indenture (contingent or otherwise) to do so, except thatassuming, in each the case of redemption, the giving of the notice would have been deemed to be a Restricted Payment at such time and such deemed Restricted Payment would have been permitted at such time); (except ii) the Borrower may declare or make a Restricted Payment with respect to its Equity Interest payable solely in Qualified Equity interestsInterests or redeem any of its Equity Interests in exchange for, or out of the proceeds of the substantially concurrent issuance and sale of, Qualified Equity Interests or through accretion or accumulation of such dividends on such Equity Interests; provided that the issuance of such Equity Interests are not included in any determination of the Retained Excess Cash Flow Amount; (iii) repurchase, redemption or other acquisition for value by the Borrower of, Equity Interests of the Borrower held by officers, directors or employees or former officers, directors or employees of the Borrower and any Restricted Subsidiary (or their transferees, estates or beneficiaries under their estates), upon their death, disability, retirement, severance or termination of employment or service; provided that the aggregate cash consideration paid for all such redemptions shall not exceed $10,000,000 during any twelve consecutive months (with unused amounts in any period being carried over to succeeding periods); provided, further, that cancellation of Indebtedness owing to the Borrower or any Restricted Subsidiary from any current or former officer, director or employee (or any permitted transferees thereof) of the Borrower or any of its Restricted Subsidiaries (or any direct or indirect parent company thereof), in connection with a repurchase of Equity Interests of the Borrower from such Persons will not be deemed to constitute a Restricted Payment for purposes of this covenant or any other provisions of the Indenture; (iv) repurchases of Equity Interests deemed to occur (a) upon the exercise of stock options, warrants, or similar rights if the Equity Interests represent all or a portion of the exercise price thereof or (b) in connection with the satisfaction of any withholding Tax obligations incurred relating to the vesting or exercise of stock options, warrants, restricted stock units or similar rights; (v) any Restricted Payment made out of the net cash proceeds of the substantially concurrent sale of, or made by exchange for, Qualified Equity Interests of the Borrower (other than Qualified Equity Interests issued or sold to a Restricted Subsidiary of the Borrower or an employee stock ownership plan or to a trust established by the Borrower or any of its Restricted Subsidiaries for the benefit of their employees) or a substantially concurrent cash capital contribution received by the Borrower from its stockholders; provided that such net cash proceeds are not included in any determination of the Retained Excess Cash Flow Amount; (vi) payments or distributions to dissenting stockholders pursuant to applicable law, pursuant to or in connection with a consolidation, merger or transfer of all or substantially all of the assets of the Borrower and its Restricted Subsidiaries that complies with the provisions of Section 8.06(a)6.03; (vii) so long as no Default any Restricted Subsidiary may declare or Event of Default shall have occurred and be continuing (both before and after make a Restricted Payment with respect to the making Equity Interests of such Restricted Payment): (a) each Restricted Subsidiary may make Restricted Payments to the Borrower and to wholly-owned or any other Restricted Subsidiaries Subsidiary (and, in the case of a Restricted Payment by Subsidiary that is not a non-wholly-owned Restricted Wholly Owned Subsidiary, to the Borrower and any Restricted Subsidiary and to each other owner of capital stock or other equity interests Equity Interests of such Restricted Subsidiary on a such that the Borrower or Restricted Subsidiary receives at least its pro rata basis based on their relative ownership interestsshare of such dividend or distribution); (bviii) Restricted Payments in an aggregate amount not to exceed in any fiscal year the greater of (x) $50,000,000 and (y) 10.0% of Consolidated EBITDA for the then most recently ended Test Period less any Investments made under this clause pursuant to Section 6.11(t); provided that after giving effect thereto on a pro forma basis (i) no Default shall have occurred and be continuing and (ii) the Consolidated Net Leverage Ratio is equal to or less than 4.50 to 1.00; (ix) Restricted Payments up to an aggregate amount not to exceed $100,000,000 less any Investments made under this clause pursuant to Section 6.11(t); (x) Restricted Payments so long as after giving effect thereto on a pro forma basis, (i)(x) prior to the Term B-1 Loan Repayment Date, the Secured Net Leverage Ratio is equal to or less than 2.00 to 1.00 and (y) on or after the Term B-1 Loan Repayment Date, the Consolidated Net Leverage Ratio is equal to or less than 3.50 to 1.00 and (ii) no Default shall have occurred and be continuing; (xi) the Borrower and each Subsidiary its Restricted Subsidiaries may declare and make dividend payments Restricted Payments to any member of the IAC Group that is a direct or other distributions payable solely in indirect parent of the common stock Borrower: (A) the proceeds of which will be used to pay the consolidated, combined or other common Equity Interests similar income tax liability of such Personparent’s income tax group that is attributable to the income of the Borrower or its subsidiaries; provided that (x) no such payments with respect to any taxable year shall exceed the amount of such income tax liability that would have been imposed on the Borrower and/or the applicable Subsidiaries had such entity(ies) filed on a stand-alone basis and (y) any such payments attributable to an Unrestricted Subsidiary shall be limited to the amount of any cash paid by such Unrestricted Subsidiary to the Borrower or any Restricted Subsidiary for such purpose; (cB) the proceeds of which shall be used to pay such equity holder’s operating costs and expenses, other overhead costs and expenses and fees, in each case, which are directly attributable to the ownership or operations of the Borrower and each Subsidiary may purchaseits subsidiaries; or (C) the proceeds of which shall be used to pay customary salary, redeem bonus and other benefits payable to, and indemnities provided on behalf of, officers and employees of any direct or otherwise acquire shares indirect parent of the Borrower to the extent such salaries, bonuses, other benefits and indemnities are directly attributable to the ownership or operation of the Borrower and its common stock or other common Equity Interests or warrants or options to acquire any such shares in connection with customary employee or management agreements, plans or arrangementsRestricted Subsidiaries; (dxii) any Junior Debt Restricted Payments; provided that, at the time of, and after giving effect thereto on a pro forma basis (x) no Default shall have occurred and be continuing and (y) the Borrower shall be permitted to make in compliance with Section 6.10 as of the end of the most recently ended Test Period; and (xiii) Restricted Payments in connection with the form of cash dividends Match Transactions.; and (xiv) prior to the shareholders of the Borrower Term B-1 Loan Repayment Date, Restricted Payments in an aggregate amount in any fiscal year not to exceed $10,000,000the portion of the Retained Excess Cash Flow Amount on the date of such election that the Borrower elects to apply to this Section 6.05(xiv) in a written notice of a Responsible Officer thereof, which notice shall set forth the Retained Excess Cash Flow Amount (and the calculation thereof in reasonable detail) immediately prior to such election and the amount thereof elected to be so applied; provided that, any amount of cash dividends permitted to be paid by this clause (d) but not paid in respect of any fiscal year commencing on or that after October 1, 2006, may be carried forward and paid in any subsequent fiscal year; (e) the Borrower and each Subsidiary shall be permitted to make other Restricted Payments in the form of cash dividends, distributions, purchases, redemptions or other acquisitions of or with respect to shares of its common stock or other common Equity Interests either (i) if at the time of making such Restricted Payment the Consolidated Leverage Ratio (calculated giving effect thereto on a pro forma basis giving effect to such Restricted Payment (i) no Default shall have occurred and any Indebtedness incurred in connection therewith and any other relevant factor, all in accordance with Sections 1.04(c) and (d)) is not greater than 3.50 to 1.00, on an unlimited basis, be continuing and (ii) if at the time of making such Restricted Payment the Consolidated Net Leverage Ratio (calculated on a pro forma basis giving effect is equal to such Restricted Payment and any Indebtedness incurred in connection therewith and any other relevant factor, all in accordance with Sections 1.04(c) and (d)) is greater than 3.50 to 1.00 but or less than the maximum permitted level for the most recently ended fiscal quarter set forth in Section 8.12(a), in an amount in any fiscal year of the Borrower not greater than the Maximum Annual Payment Amount (less any portion of the Maximum Annual Payment Amount utilized 4.50 to make Investments pursuant to Section 8.02(o) or to prepay or otherwise satisfy Indebtedness pursuant to Section 8.11(a)(iv))1.00.

Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, or issue or sell any Equity Interests, except that: (a) each Restricted Subsidiary may declare and make Restricted Payments to any Loan Party and any other Person that owns a direct Equity Interest in such Restricted Subsidiary, either (i) ratably according to their respective holdings of the type of Equity Interest in each case respect of which such Restricted Payment is being made or (except Section 8.06(a)ii) on a non-pro rata basis either (A) where required by Organization Documents or agreements existing as of the Closing Date or (B) where the aggregate amount of all distributions to Persons other than the Borrower or a Restricted Subsidiary that are in excess of the pro rata share of such Restricted Payments that would otherwise be owing to such Persons does not exceed $10,000,000 in the aggregate during the term of the Facilities, so long as no Default shall have occurred and be continuing at the time of any action described in this clause (a) or would result therefrom; (b) the Borrower and each Restricted Subsidiary may declare and make any Restricted Payment payable solely in Equity Interests (other than Disqualified Stock) of such Person, so long as no Event of Default shall have occurred and be continuing at the time of any action described in this clause (b) or would result therefrom; (c) the Borrower and each Restricted Subsidiary may declare and make any Restricted Payment in exchange for, or with the proceeds received from the substantially concurrent issue of, new Equity Interests (other than Disqualified Stock), so long as no Event of Default shall have occurred and be continuing at the time of any action described in this clause (c) or would result therefrom; (d) each Restricted Subsidiary may declare and make Restricted Payments to the Borrower so that the Borrower may pay any Taxes which are due and payable by or with respect to the Restricted Subsidiaries; (e) the Borrower and its Restricted Subsidiaries may declare and make other Restricted Payments so long as (i) the aggregate amount of any such Restricted Payment made pursuant to this clause (e) is not in excess of the Cumulative Available Amount in effect on such date and not being utilized for Investments pursuant to Section 7.03(j) (and such Restricted Payment shall then reduce the Cumulative Available Amount as provided therein on the date of payment thereof), (ii) immediately after giving pro forma effect to such Restricted Payments, the Borrower and its Restricted Subsidiaries shall be in pro forma compliance with the financial covenant set forth in Section 7.11(b), (iii) both immediately before and after giving pro forma effect thereto, no Event of Default shall have occurred and be continuing or would result therefrom and (iv) no later than three Business Days (or such shorter period as agreed upon by the Administrative Agent) prior to such Restricted Payment, the Borrower shall have delivered to the Administrative Agent a certificate setting forth the calculations demonstrating, in reasonable detail, compliance with the foregoing clause (ii); (f) the Borrower and its Restricted Subsidiaries may declare and make Restricted Payments in reliance on this clause (f) in an aggregate amount in any fiscal year not to exceed (x) the greater of (i) $84,000,000 and (ii) 1.4% of Consolidated Total Assets as of the last day of the most recent fiscal quarter or year for which financial statements have been delivered pursuant to Section 6.01, plus (y) the unused amount available for Restricted Payments under this clause (f) for the immediately preceding fiscal year (excluding any carry-forward available from any prior fiscal year); provided that (A) no Default or Event of Default shall have occurred and be continuing or would result therefrom, and (both before and after the making of such Restricted Payment): (a) each Restricted Subsidiary may make Restricted Payments to the Borrower and to wholly-owned Restricted Subsidiaries (and, in the case of a Restricted Payment by a non-wholly-owned Restricted Subsidiary, to the Borrower and any Restricted Subsidiary and to each other owner of capital stock or other equity interests of such Restricted Subsidiary on a pro rata basis based on their relative ownership interests); (bB) the Borrower and each Subsidiary may declare and make dividend payments or other distributions payable solely in the common stock or other common Equity Interests of such Person; (c) the Borrower and each Subsidiary may purchase, redeem or otherwise acquire shares of its common stock or other common Equity Interests or warrants or options to acquire any such shares in connection with customary employee or management agreements, plans or arrangements; (d) the Borrower Restricted Subsidiaries shall be permitted to make Restricted Payments in the form of cash dividends to the shareholders of the Borrower in an aggregate amount in any fiscal year not to exceed $10,000,000; provided that, any amount of cash dividends permitted to be paid by this clause (d) but not paid in respect of any fiscal year commencing on or after October 1, 2006, may be carried forward and paid in any subsequent fiscal year; (e) the Borrower and each Subsidiary shall be permitted to make other Restricted Payments in the form of cash dividends, distributions, purchases, redemptions or other acquisitions of or with respect to shares of its common stock or other common Equity Interests either (i) if at the time of making such Restricted Payment the Consolidated Leverage Ratio (calculated on a pro forma basis compliance with the financial covenants set forth in Section 7.11 based on the most recently completed fiscal quarter for which financial statements have been provided under Section 6.01 after giving pro forma effect to such Restricted Payment thereto and any Indebtedness incurred in connection therewith therewith; (g) the Borrower may declare and make dividends in respect of the Borrower’s common stock so long as the payment thereof is in amounts (on a per share basis, subject to adjustments for any issuances, splits, reverse splits or other reductions or increases in the number of outstanding shares of common stock) in an annual aggregate amount equal to the amounts set forth on Schedule 7.06; (h) the Borrower and its Restricted Subsidiaries may declare and make other Restricted Payments so long as no Event of Default shall have occurred and be continuing at the time or would result therefrom and, after giving pro forma effect thereto (including any incurrence and/or repayment of Indebtedness in connection therewith), the Consolidated Net Leverage Ratio is less than or equal to 3.00 to 1.00 as of the last day of the most recent fiscal quarter or year for which financial statements have been delivered pursuant to Section 6.01 (or, prior to the first delivery thereof, the financial statements described in Section 5.05(a)); (i) [reserved]; (j) the Borrower may purchase Equity Interests of the Borrower and any warrants or other relevant factorrights with respect to Equity Interests of the Borrower from its employees, all officers and directors by net exercise, pursuant to the terms of any employee stock option, restricted stock or incentive stock plan; (k) the Borrower may issue and sell its Equity Interests (excluding Disqualified Stock) to the extent not constituting a Change of Control; (l) the Borrower and its Restricted Subsidiaries may declare and make dividends or distributions on account of redemption to holders of any class or series of Disqualified Stock of the Borrower or any Restricted Subsidiary issued or incurred in accordance compliance with Sections 1.04(cSection 7.02 to the extent such redemption is otherwise permitted hereunder; (m) the Borrower and its Restricted Subsidiaries may (d)i) is not greater than 3.50 purchase or pay cash in lieu of fractional shares of its Equity Interests arising out of stock dividends, splits, or business combinations or in connection with issuance of Equity Interests (excluding Disqualified Stock) of the Borrower pursuant to 1.00mergers, on an unlimited basisconsolidations or other acquisitions permitted by this Agreement, (ii) pay cash in lieu of fractional shares upon the exercise of warrants, options or other securities convertible into or exercisable for Equity Interests (excluding Disqualified Stock) of the Borrower, and (iiiii) make payments in connection with the retention of Equity Interests (excluding Disqualified Stock) in payment of withholding taxes in connection with equity-based compensation plans to the extent that net share settlement arrangements are deemed to be repurchases; (n) the Borrower and its Restricted Subsidiaries may issue and sell any Disqualified Stock (including any Permitted Convertible Indebtedness) to the extent permitted under Section 7.02; (o) the Borrower and its Restricted Subsidiaries may make the payment of any dividend or distribution within 60 days after the date of declaration thereof, if at the time date of making declaration such payment would have complied with the provisions of this Agreement (so long as, during any interim period, any calculation or measurement hereunder is made assuming such amount has been declared and paid); (p) the Borrower and its Restricted Payment the Consolidated Leverage Ratio (calculated on a pro forma basis giving effect to such Restricted Payment and any Indebtedness incurred in connection therewith and any other relevant factorSubsidiaries may repurchase, all in accordance with Sections 1.04(c) and (d)) is greater than 3.50 to 1.00 but less than the maximum permitted level for the most recently ended fiscal quarter set forth in Section 8.12(a)redeem, in an amount in any fiscal year defease or otherwise acquire Disqualified Stock of the Borrower not greater than or any Restricted Subsidiary with the Maximum Annual Payment Amount (less any portion net cash proceeds from a substantially concurrent issuance of the Maximum Annual Payment Amount utilized to make Investments Disqualified Stock pursuant to Section 8.02(o7.02; (q) the Borrower and its Restricted Subsidiaries may make any payments required by the terms of, and otherwise perform its obligations under, any Permitted Convertible Indebtedness (including, without limitation, making payments of principal at maturity and/or making payments of cash upon conversion thereof), provided that the aggregate amount of cash paid in reliance on this clause (q) shall not exceed the stated principal amount of such Permitted Convertible Indebtedness; (r) the Borrower and its Restricted Subsidiaries may pay the premium in respect of, and otherwise perform its obligations under, any Permitted Bond Hedge Transaction; (s) the Borrower and its Restricted Subsidiaries may make any payments required by the terms of, and otherwise perform its obligations under, any Permitted Warrant Transaction (including, without limitation, making payments due upon exercise and settlement or to prepay termination thereof); and (t) the Borrower and its Restricted Subsidiaries may issue and sell any Permitted Warrant Transaction substantially concurrently with any issuance or otherwise satisfy sale of Permitted Convertible Indebtedness pursuant to Section 8.11(a)(iv))permitted hereunder.

Restricted Payments. Declare or make, directly or indirectly, make any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that, in each case (except Section 8.06(a)) so long as no Default or Event of Default shall have occurred and be continuing (both before and after at the making time of such Restricted Payment):any action described below or would result therefrom: (a) each Restricted Subsidiary may make Restricted Payments to the Borrower and to wholly-owned Restricted Subsidiaries (Parent, the Subsidiary Guarantors and, ratably according to their respective holdings of the type of Equity Interest in the case respect of a which such Restricted Payment by a non-wholly-owned Restricted Subsidiaryis being made, to any other Person that owns an Equity Interest in such Subsidiary; and the Borrower Parent and any Restricted other Subsidiary and to each may repurchase, redeem, retire or acquire any Equity Interests held by the Parent or any of its Subsidiaries in any other owner of capital stock or other equity interests of such Restricted Subsidiary on a pro rata basis based on their relative ownership interests)Subsidiary; (b) the Borrower Parent and each Subsidiary may declare and make dividend payments or other distributions payable solely in the common stock or other common Equity Interests of such Person; (c) the Borrower Parent and each Subsidiary may purchase, redeem or otherwise acquire Equity Interests issued by it with the proceeds received from the substantially concurrent issue of new shares of its common stock or other common Equity Interests or warrants or options to acquire any such shares in connection with customary employee or management agreements, plans or arrangementsInterests; (d) the Borrower shall be permitted to make Restricted Payments in Parent or any Subsidiary may pay any dividend within 90 days after the form date of cash dividends to declaration thereof, if on the shareholders date of declaration the Borrower in an aggregate amount in any fiscal year not to exceed $10,000,000; provided that, any amount payment would have complied with the provisions of cash dividends permitted to be paid by this clause (d) but not paid in respect of any fiscal year commencing on or after October 1, 2006, may be carried forward and paid in any subsequent fiscal yearSection 7.06; (e) the Borrower and each Subsidiary Parent may redeem, repurchase or acquire, or pay any sums due with respect to, Equity Interests of the Parent held by officers, directors, employees or consultants or former officers, directors, employees or consultants (or their transferees, estates or beneficiaries under their estates), upon their death, disability, retirement, severance or termination of employment or service; provided that the aggregate cash consideration paid for all such redemptions shall not exceed $20,000,000 million during any calendar year (with unused amounts in any calendar year being usable, without duplication, in subsequent calendar years), provided that such amounts shall be increased by: (a) the cash proceeds from the sale of Equity Interests to officers, directors, employees or consultants of the Parent and its Subsidiaries that occurs after the Closing Date (provided that such proceeds have not been included for the purpose of determining whether a previous Restricted Payment was permitted pursuant to Section 7.06(h)) plus (b) the cash proceeds of key man life insurance policies received by the Parent or any Subsidiaries after the Closing Date; (f) the Parent or any Subsidiary may make other Restricted Payments in repurchases of Equity Interests deemed to occur upon the form exercise of cash dividendsstock options or warrants if the Equity Interests represent a portion of the exercise price thereof, distributionsand the Parent or any Subsidiary may make repurchases of Equity Interests deemed to occur upon the withholding of a portion of the Equity Interests granted or awarded such employee upon such grant or award; (g) the Parent may purchase, purchasesredeem, redemptions acquire, cancel or other acquisitions retire, for a nominal value per right, any rights granted to all the holders of or with respect to shares of its common stock of the Parent pursuant to any shareholders’ rights plan adopted for the purpose of protecting shareholders from unfair takeover tactics; and (h) the Parent or other common Equity Interests either any Subsidiary may on any date (i) if at the time of making such Restricted Payment the Consolidated Leverage Ratio (calculated on a pro forma basis giving effect declare or pay dividends to such Restricted Payment and any Indebtedness incurred in connection therewith and any other relevant factor, all in accordance with Sections 1.04(c) and (d)) is not greater than 3.50 to 1.00, on an unlimited basis, its stockholders and (ii) if at the time purchase, redeem or otherwise acquire Equity Interests issued by it if, as of making such Restricted Payment the Consolidated Leverage Ratio (calculated on a pro forma basis date and immediately after giving effect to thereto, the aggregate amount of such Restricted Payment dividends, purchases, redemptions, retirements and any Indebtedness incurred in connection therewith and any other relevant factor, all in accordance with Sections 1.04(c) and (d)) is greater than 3.50 to 1.00 but acquisitions paid or made after the Closing Date would be less than the maximum permitted level for sum of $500,000,000 plus the most recently ended fiscal quarter set forth in Section 8.12(a), in an amount in any fiscal year of the Borrower not greater than the Maximum Annual Marginal Restricted Payment Amount (less any portion as of the Maximum Annual Payment Amount utilized to make Investments pursuant to Section 8.02(o) or to prepay or otherwise satisfy Indebtedness pursuant to Section 8.11(a)(iv))such date.

Restricted Payments. Declare or make, directly or indirectly, make any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that, in each case (except Section 8.06(a)) so long as no Default or Event of Default shall have occurred and be continuing (both before and after the making of such Restricted Payment):: (a) (i) the Borrower may make Restricted Payments to Holdings and (ii) each Restricted Subsidiary may make Restricted Payments to the Borrower, any Subsidiaries of the Borrower that are Guarantors and to wholly-owned Restricted Subsidiaries (and, any other Person that owns a direct Equity Interest in the case of a Restricted Payment by a non-wholly-owned such Restricted Subsidiary, ratably according to their respective holdings of the Borrower and any Restricted Subsidiary and to each other owner type of capital stock or other equity interests Equity Interest in respect of which such Restricted Subsidiary on a pro rata basis based on their relative ownership interests)Payment is being made; (b) Holdings, the Borrower and each Restricted Subsidiary may declare and make dividend payments or other distributions payable solely in the common stock or other common Equity Interests of such Person; (c) Holdings, the Borrower and each Restricted Subsidiary may purchase, redeem or otherwise acquire shares of its common stock or other common Equity Interests or warrants or options to acquire any such shares in connection with customary employee or management agreements, plans or arrangementsthe proceeds received from the substantially concurrent issue of new common Equity Interests; (d) the Borrower shall be permitted to Holdings may make Restricted Payments in the form of constituting regularly scheduled cash dividends to so long as (i) no Default shall have occurred and be continuing or would result therefrom (which may, at the shareholders option of the Borrower in an Borrower, be determined on the date of declaration of such Restricted Payment) and (ii) the aggregate amount of such Restricted Payments paid or made in any fiscal year would not to exceed $10,000,000; provided that, any amount of cash dividends permitted to be paid by this clause (d) but not paid in respect of any fiscal year commencing on or after October 1, 2006, may be carried forward and paid in any subsequent fiscal year50,000,000; (e) Holdings, the Borrower and each Restricted Subsidiary shall be permitted to may make any other Restricted Payments in the form of cash dividends, distributions, purchases, redemptions or other acquisitions of or with respect to shares of its common stock or other common Equity Interests either Payment so long as (i) if no Default shall have occurred and be continuing or would result therefrom and (ii) after giving pro forma effect thereto for the most recently ended Measurement Period (including any incurrence and/or repayment of Indebtedness in connection therewith), the Consolidated Total Net Leverage Ratio does not exceed 2.50 to 1.00 at the time of making such Restricted Payment Payment; provided that, at the Consolidated Leverage Ratio option of the Borrower, satisfaction of each of clauses (calculated i) and (ii) may be determined on a pro forma basis the date of declaration of such Restricted Payment; and (f) Holdings may make Restricted Payments to the extent the same are made with the Available Amount, so long as at the time of, and after giving effect to such Restricted Payment and any Indebtedness incurred in connection therewith and any other relevant factor, all in accordance with Sections 1.04(c) and (d)) is not greater than 3.50 to 1.00, on an unlimited basis, and (ii) if at the time of making such Restricted Payment the Consolidated Leverage Ratio (calculated on a pro forma basis giving effect to such Restricted Payment basis, no Default or Event of Default shall have occurred and any Indebtedness incurred in connection therewith and any other relevant factor, all in accordance with Sections 1.04(c) and (d)) is greater than 3.50 to 1.00 but less than the maximum permitted level for the most recently ended fiscal quarter set forth in Section 8.12(a), in an amount in any fiscal year of the Borrower not greater than the Maximum Annual Payment Amount (less any portion of the Maximum Annual Payment Amount utilized to make Investments pursuant to Section 8.02(o) be continuing or to prepay or otherwise satisfy Indebtedness pursuant to Section 8.11(a)(iv))result therefrom.

Restricted Payments. Declare The Borrower will not, and will not permit any of its Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that, in each case (except Section 8.06(a)) so long as no Default or Event of Default shall have occurred and be continuing (both before and after the making of such Restricted Payment): (a) each Restricted Subsidiary of the Borrower and its Subsidiaries may declare and pay dividends with respect to its Capital Stock payable solely in additional shares of the same class of Capital Stock, (b) Subsidiaries may declare and pay dividends ratably with respect to their Capital Stock and may make other Restricted Payments to the Borrower and to wholly-owned Restricted Subsidiaries (and, in the case of a Restricted Payment by a non-wholly-owned Restricted or any other Subsidiary, to the Borrower and any Restricted Subsidiary and to each other owner of capital stock or other equity interests of such Restricted Subsidiary on a pro rata basis based on their relative ownership interests); (b) the Borrower and each Subsidiary may declare and make dividend payments or other distributions payable solely in the common stock or other common Equity Interests of such Person; (c) the Borrower may make Restricted Payments pursuant to and each Subsidiary may purchase, redeem in accordance with stock option or otherwise acquire shares of its common stock rights plans or other common Equity Interests benefit plans for management, employees, directors or warrants or options to acquire any such shares in connection with customary employee or management agreementsconsultants of the Borrower and its Subsidiaries, plans or arrangements; (d) the Borrower shall be permitted to make Restricted Payments in may declare and pay dividends on the form of cash dividends to the shareholders common stock of the Borrower made in an aggregate amount in any fiscal year the ordinary course of business at a rate per share not to exceed the rate most recently utilized prior to the Effective Date so long as, at the time of declaration of such dividend, (i) no Event of Default shall be in existence and (ii) either (A) the Borrower has Borrower Debt Ratings of BBB or better from S&P and Baa2 or better from Moody's, in each case on stable watch or the equivalent or (B) Cons▇▇▇▇▇▇▇d Operating Income shall have equaled at least $10,000,000; provided that1,800,000,000 for the most recent period of four consecutive fiscal quarters for which the relevant financial information is available (as certified by the Borrower to the Administrative Agent), any amount of cash dividends permitted to be paid by this clause (d) but not paid in respect of any fiscal year commencing on or after October 1, 2006, may be carried forward and paid in any subsequent fiscal year; (e) the Borrower may pay cash dividends on preferred Capital Stock of the Borrower issued in capital markets transactions to the extent provided to be made in cash by the terms thereof so long as, before such payment and each Subsidiary after giving effect thereto, no Event of Default shall be permitted to make other Restricted Payments in existence, (f) the Borrower may exchange the Redeemable Convertible Preferred Stock for Convertible Subordinated Debentures as provided in the form Certificate of Designations, (g) the issuer of the Trust Preferred Securities may distribute the Convertible Subordinated Debentures as described in the Trust Preferred Offering Memorandum, (h) in connection with the conversion of any Redeemable Convertible Preferred Stock, Trust Preferred Securities or Convertible Subordinated Debentures into common stock of the Borrower pursuant to the terms thereof, the Borrower may pay cash dividends, distributions, purchases, redemptions or other acquisitions instead of or with respect to shares issuing "fractional shares" of its common stock or other common Equity Interests either and (i) if at the time of making such Restricted Payment the Consolidated Leverage Ratio (calculated on a pro forma basis Borrower may make any payment or repurchase permitted to be made under Section 6.08(b) if, after giving effect to such Restricted Payment and any Indebtedness incurred payment, the Borrower would be in connection therewith and any other relevant factor, all in accordance compliance with Sections 1.04(c) and (d)) is not greater than 3.50 to 1.00, on an unlimited basis, and (ii) if at the time of making such Restricted Payment the Consolidated Leverage Ratio (calculated on a pro forma basis giving effect to such Restricted Payment and any Indebtedness incurred in connection therewith and any other relevant factor, all in accordance with Sections 1.04(c) and (d)) is greater than 3.50 to 1.00 but less than the maximum permitted level for the most recently ended fiscal quarter financial covenant set forth in Section 8.12(a), in an amount in any fiscal year of the Borrower not greater than the Maximum Annual Payment Amount (less any portion of the Maximum Annual Payment Amount utilized to make Investments pursuant to Section 8.02(o) or to prepay or otherwise satisfy Indebtedness pursuant to Section 8.11(a)(iv))7.01.

Restricted Payments. Declare Each Borrower will not, and will not permit any of its Restricted Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, except: (a) (i) any Restricted Subsidiary may declare and pay dividends to, or incur make other distributions to, the Dutch Borrower or any obligation Restricted Subsidiary that is a direct parent of such Restricted Subsidiary and, if not a Wholly Owned Subsidiary, to each other direct owner of Equity Interests of such Restricted Subsidiary on a pro rata basis (contingent or otherwisemore favorable basis from the perspective of the Dutch Borrower or such Restricted Subsidiary) based on their relative ownership interests; and (ii) to do sothe extent permitted by Section 6.04, except thatany Restricted Subsidiary that is not a Wholly Owned Subsidiary may repurchase its Equity Interests from any owner of the Equity Interests of such Restricted Subsidiary that is not the Dutch Borrower or a Restricted Subsidiary; (b) [Reserved]; (c) the Dutch Borrower may make Restricted Payments to its equityholders to purchase or redeem Equity Interests (including related stock appreciation rights or similar securities) held by then-present or former directors, consultants, officers or employees of the Dutch Borrower or any of the Restricted Subsidiaries or by any Plan upon such person’s death, disability, retirement or termination of employment or under the terms of any such Plan or any other agreement under which such shares of stock or related rights were issued; provided that the aggregate amount of Restricted Payments under this Section 6.06(c) shall not exceed $15,000,000 in each case any Fiscal Year (except Section 8.06(awith unused amounts in any calendar year being permitted to be carried over for the succeeding calendar year); provided further that such amount in any calendar year may be increased as the Dutch Borrower may elect by an amount not to exceed: (i) the cash proceeds received by the Dutch Borrower or any of its Restricted Subsidiaries in such calendar year from the sale of Equity Interests (other than Disqualified Equity Interests) of the Dutch Borrower or any direct or indirect parent of the Dutch Borrower (to the extent contributed to the Dutch Borrower) to directors, consultants, officers or employees of the Dutch Borrower or its Restricted Subsidiaries or any direct or indirect parent of the Dutch Borrower that occurs after the Effective Date, plus (ii) amounts received in respect of key man life insurance policy proceeds; (d) any Person may make noncash repurchases of Equity Interests deemed to occur upon exercise of stock options if such Equity Interests represent a portion of the exercise price of such options; (e) so long as no Default or Event of Default shall have has occurred and be is continuing (both before and or would result therefrom, any Person may make additional Restricted Payments after the making of such Effective Date in an aggregate amount with all other Restricted Payment):Payments made pursuant to this clause (e) not to exceed $25,000,000 in the aggregate; (af) each Restricted Subsidiary any Person may make Restricted Payments to the Borrower and minority shareholders of any Subsidiary that is acquired pursuant to wholly-owned Restricted Subsidiaries (and, in the case of a Restricted Payment by a non-wholly-owned Restricted Subsidiary, Permitted Business Acquisition pursuant to the Borrower and any Restricted Subsidiary and appraisal or dissenters’ rights with respect to each other owner of capital stock or other equity interests shares of such Restricted Subsidiary on a pro rata basis based on their relative ownership interests)held by such shareholders; (bg) the Dutch Borrower and each Subsidiary may declare and make dividend payments or other distributions payable solely in the common stock Equity Interests (other than Disqualified Equity Interests) of the Dutch Borrower; (h) if the Consolidated Leverage Ratio as of the most recently ended Test Period is less than or other common equal to 1.00 to 1.00 (or 2.00 to 1.00 after consummation of a Qualified IPO), the Dutch Borrower may elect to make Restricted Payments to its shareholders in an amount not to exceed the Available Free Cash Flow Amount, such election to be specified as provided in a written notice of a Responsible Officer of the Dutch Borrower calculating in reasonable detail the amount of Available Free Cash Flow Amount immediately prior to such election and the amount thereof elected to be so applied; provided that no Default or Event of Default shall have occurred and be continuing or would result therefrom and any related transactions (including, without limitation, the incurrence of any Indebtedness); provided further that, if the Consolidated Leverage Ratio as of the most recently ended Test Period is (i) greater than 1.00 to 1.00 (or 2.00 to 1.00 after consummation of a Qualified IPO) and less than or equal to 1.50 to 1.00 (or 2.50 to 1.00 after the consummation of a Qualified IPO), the amount of Restricted Payments permitted under in this clause (h), shall not exceed the lesser of (1) the Available Free Cash Flow Amount on the date of such Restricted Payment and (2) $25,000,000 (or $50,000,000 after consummation of a Qualified IPO) or (ii) greater than 1.50 to 1.00, (or 2.50 to 1.00 after the consummation of a Qualified IPO) the amount of Restricted Payments permitted under in this clause (h), shall not exceed the lesser of (1) the Available Free Cash Flow Amount on the date of such Restricted Payment and (2) $15,000,000 (or $30,000,000 after consummation of a Qualified IPO); (i) the Dutch Borrower may distribute up to €250,000,000 to its equity holders, in one or more transactions, consummated no later than December 31, 2013; (j) the Dutch Borrower or any Restricted Subsidiary may (i) make payments of cash, or dividends, distributions or advances to allow such Person to make payments of cash, in lieu of the issuance of fractional shares upon exercise of warrants or upon the conversion or exchange of Equity Interests of such Person; Person and (cii) the Borrower honor any conversion request by a holder of convertible Indebtedness and each Subsidiary may purchase, redeem or otherwise acquire shares make cash payments in lieu of its common stock or other common Equity Interests or warrants or options to acquire any such fractional shares in connection with customary employee or management agreements, plans or arrangementsany such conversion; (dk) the Borrower shall be permitted to make Restricted Payments in declaration and payment of dividends on the form of cash dividends to Dutch Borrower’s common stock following the shareholders first public offering of the Borrower in an aggregate amount in any fiscal year not to exceed $10,000,000; provided that, any amount of cash dividends permitted to be paid by this clause (d) but not paid in respect of any fiscal year commencing on or after October 1, 2006, may be carried forward and paid in any subsequent fiscal year; (e) the Borrower and each Subsidiary shall be permitted to make other Restricted Payments in the form of cash dividends, distributions, purchases, redemptions or other acquisitions of or with respect to shares of its Dutch Borrower’s common stock or the common stock of any of its direct or indirect parents after the Effective Date, of up to 6% per annum of the net proceeds received by or contributed to the Dutch Borrower in or from any such public offering, other than public offerings of common Equity Interests either stock registered on Form S-4 or Form S-8; provided that no Default or Event of Default shall have occurred and be continuing or would result therefrom; and (il) the payment of dividends and distributions within 60 days after the date of declaration thereof, if at the time date of making declaration of such Restricted Payment payment, such payment would have complied with the Consolidated Leverage Ratio (calculated on a pro forma basis giving effect to such Restricted Payment and any Indebtedness incurred in connection therewith and any other relevant factor, all in accordance with Sections 1.04(c) and (d)) is not greater than 3.50 to 1.00, on an unlimited basis, and (ii) if at the time provisions of making such Restricted Payment the Consolidated Leverage Ratio (calculated on a pro forma basis giving effect to such Restricted Payment and any Indebtedness incurred in connection therewith and any other relevant factor, all in accordance with Sections 1.04(c) and (d)) is greater than 3.50 to 1.00 but less than the maximum permitted level for the most recently ended fiscal quarter set forth in this Section 8.12(a), in an amount in any fiscal year of the Borrower not greater than the Maximum Annual Payment Amount (less any portion of the Maximum Annual Payment Amount utilized to make Investments pursuant to Section 8.02(o) or to prepay or otherwise satisfy Indebtedness pursuant to Section 8.11(a)(iv))6.06.

Restricted Payments. Declare or make, directly or indirectly, The Borrowers will not make any Restricted PaymentPayment at any time, or incur any obligation (contingent or otherwise) to do so, except provided that, in each case (except Section 8.06(a)) so long as at the time thereof, and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing continuing, the Borrowers may make the following Restricted Payments (both before and after subject, in each case, to the making of such Restricted Paymentapplicable conditions set forth below): (a) each Restricted Subsidiary the Borrowers may make Restricted Payments in cash to their members in an amount equal to the Borrower Tax Payment Amount with respect to any fiscal period or portion thereof (net of Restricted Payments previously made under this paragraph (a) in respect of such period), so long as at least fifteen days prior to making any such Restricted Payment, the Borrowers shall have delivered to each Lender (i) notification of the amount and to wholly-owned proposed payment date of such Restricted Subsidiaries Payment and (ii) a statement of a Senior Officer (and, in the case event such period is a full fiscal year, the Borrower’s independent certified public accountants) setting forth a detailed calculation of a Restricted the Tax Payment by a non-wholly-owned Restricted Subsidiary, to Amount for such period and showing the Borrower and any Restricted Subsidiary and to each other owner of capital stock or other equity interests amount of such Restricted Subsidiary on a pro rata basis based on their relative ownership interests)Payment and all previous Restricted Payments made pursuant to this Section 8.09(a) in respect of such period; (b) the Borrower and each Subsidiary Borrowers may declare and make dividend payments or other distributions payable solely in cash in respect of Management Fees to the common stock or other common Equity Interests of such Personextent permitted under Section 8.11; (c) the Borrower and each Subsidiary Borrowers may purchase, redeem or otherwise acquire shares make payments in cash in respect of its common stock or other common Equity Interests or warrants or options to acquire any such shares in connection with customary employee or management agreements, plans or arrangementsthe interest on Affiliate Subordinated Indebtedness; (d) the Borrower shall be permitted to Borrowers may make Restricted Payments payments in the form of cash dividends to the shareholders of the Borrower in an aggregate amount in any fiscal year not to exceed $10,000,000; provided that, any amount of cash dividends permitted to be paid by this clause (d) but not paid in respect of the principal of Affiliate Subordinated Indebtedness and distributions in respect of the equity capital of the Borrowers and may request the issuance of Affiliate Letters of Credit (such payment and issuance being collectively called “Permitted Transactions”), so long as: (i) in the case of any Permitted Transaction consisting of a payment in respect of the principal of Affiliate Subordinated Indebtedness, or distribution in respect of equity capital, constituting Cure Monies, at least one complete fiscal year commencing on or after October 1quarter shall have elapsed subsequent to the last date upon which the Borrowers shall have utilized their cure rights under Section 9.02, 2006, may be carried forward and paid in without the occurrence of any subsequent fiscal yearEvent of Default; (eii) after giving effect to any Permitted Transaction during any fiscal quarter (the Borrower “current fiscal quarter”) and each Subsidiary shall be permitted to make other Restricted Payments in the form making of cash dividendsany Capital Expenditures during the current fiscal quarter, distributions, purchases, redemptions or other acquisitions of or with respect to shares of its common stock or other common Equity Interests either the Borrowers would (i) if as at the time last day of making such Restricted Payment the Consolidated Leverage Ratio (calculated most recent fiscal quarter immediately prior to the current fiscal quarter) have been in compliance on a pro forma basis giving effect with Section 8.10, the determination of such compliance to such Restricted Payment and any Indebtedness incurred in connection therewith and any other relevant factor, all in accordance with Sections 1.04(c) and (d)) is not greater than 3.50 to 1.00, on an unlimited basis, and (ii) if at the time of making such Restricted Payment the Consolidated Leverage Ratio (calculated on a pro forma basis giving effect to such Restricted Payment and any Indebtedness incurred in connection therewith and any other relevant factor, all in accordance with Sections 1.04(c) and (d)) is greater than 3.50 to 1.00 but less than the maximum permitted level for the most recently ended fiscal quarter set forth in Section 8.12(a), in an amount in any fiscal year of the Borrower not greater than the Maximum Annual Payment Amount (less any portion of the Maximum Annual Payment Amount utilized to make Investments pursuant to Section 8.02(o) or to prepay or otherwise satisfy Indebtedness pursuant to Section 8.11(a)(iv)).be determined as if

Restricted Payments. Declare The Borrower will not, and will not permit any of its Restricted Subsidiaries to, declare or make, directly or indirectly, any Restricted Payment, except: (i) the payment by the Borrower or incur any obligation Restricted Subsidiary of any dividend or the consummation of any irrevocable redemption within 60 days after the date of declaration thereof or giving the notice of the redemption, if on the date of declaration or notice the payment would have complied with the provisions of the Indenture (contingent or otherwise) to do so, except thatassuming, in each the case of redemption, the giving of the notice would have been deemed to be a Restricted Payment at such time and such deemed Restricted Payment would have been permitted at such time); (except ii) the Borrower may declare or make a Restricted Payment with respect to its Equity Interest payable solely in Qualified Equity Interests or redeem any of its Equity Interests in exchange for, or out of the proceeds of the substantially concurrent issuance and sale of, Qualified Equity Interests or through accretion or accumulation of such dividends on such Equity Interests; provided that the issuance of such Equity Interests are not included in any determination of the Retained Excess Cash Flow Amount; (iii) repurchase, redemption or other acquisition for value by the Borrower of, Equity Interests of the Borrower held by officers, directors or employees or former officers, directors or employees of the Borrower and any Restricted Subsidiary (or their transferees, estates or beneficiaries under their estates), upon their death, disability, retirement, severance or termination of employment or service; provided that the aggregate cash consideration paid for all such redemptions shall not exceed $10,000,000 during any twelve consecutive months (with unused amounts in any period being carried over to succeeding periods); provided, further, that cancellation of Indebtedness owing to the Borrower or any Restricted Subsidiary from any current or former officer, director or employee (or any permitted transferees thereof) of the Borrower or any of its Restricted Subsidiaries (or any direct or indirect parent company thereof), in connection with a repurchase of Equity Interests of the Borrower from such Persons will not be deemed to constitute a Restricted Payment for purposes of this covenant or any other provisions of the Indenture; (iv) repurchases of Equity Interests deemed to occur (a) upon the exercise of stock options, warrants, or similar rights if the Equity Interests represent all or a portion of the exercise price thereof or (b) in connection with the satisfaction of any withholding Tax obligations incurred relating to the vesting or exercise of stock options, warrants, restricted stock units or similar rights; (v) any Restricted Payment made out of the net cash proceeds of the substantially concurrent sale of, or made by exchange for, Qualified Equity Interests of the Borrower (other than Qualified Equity Interests issued or sold to a Restricted Subsidiary of the Borrower or an employee stock ownership plan or to a trust established by the Borrower or any of its Restricted Subsidiaries for the benefit of their employees) or a substantially concurrent cash capital contribution received by the Borrower from its stockholders; provided that such net cash proceeds are not included in any determination of the Retained Excess Cash Flow Amount; (vi) payments or distributions to dissenting stockholders pursuant to applicable law, pursuant to or in connection with a consolidation, merger or transfer of all or substantially all of the assets of the Borrower and its Restricted Subsidiaries that complies with the provisions of Section 8.06(a)6.03; (vii) so long as no Default any Restricted Subsidiary may declare or Event of Default shall have occurred and be continuing (both before and after make a Restricted Payment with respect to the making Equity Interests of such Restricted Payment): (a) each Restricted Subsidiary may make Restricted Payments to the Borrower and to wholly-owned or any other Restricted Subsidiaries Subsidiary (and, in the case of a Restricted Payment by Subsidiary that is not a non-wholly-owned Restricted Wholly Owned Subsidiary, to the Borrower and any Restricted Subsidiary and to each other owner of capital stock or other equity interests Equity Interests of such Restricted Subsidiary on a such that the Borrower or Restricted Subsidiary receives at least its pro rata basis based on their relative ownership interestsshare of such dividend or distribution); (bviii) Restricted Payments in an aggregate amount not to exceed in any fiscal year the greater of (x) $50,000,000 and (y) 10.0% of Consolidated EBITDA for the then most recently ended Test Period less any Investments made under this clause pursuant to Section 6.11(t); provided that after giving effect thereto on a pro forma basis (i) no Default shall have occurred and be continuing and (ii) the Consolidated Net Leverage Ratio is equal to or less than 4.50 to 1.00; (ix) Restricted Payments up to an aggregate amount not to exceed $100,000,000 less any Investments made under this clause pursuant to Section 6.11(t); (x) Restricted Payments so long as after giving effect thereto on a pro forma basis, (i)(x) prior to the Term B-1 Loan Repayment Date, the Secured Net Leverage Ratio is equal to or less than 2.00 to 1.00 and (y) on or after the Term B-1 Loan Repayment Date, the Consolidated Net Leverage Ratio is equal to or less than 3.50 to 1.00 and (ii) no Default shall have occurred and be continuing; (xi) the Borrower and each Subsidiary its Restricted Subsidiaries may declare and make dividend payments Restricted Payments to any member of the IAC Group that is a direct or other distributions payable solely in indirect parent of the common stock Borrower: (A) the proceeds of which will be used to pay the consolidated, combined or other common Equity Interests similar income tax liability of such Personparent’s income tax group that is attributable to the income of the Borrower or its subsidiaries; provided that (x) no such payments with respect to any taxable year shall exceed the amount of such income tax liability that would have been imposed on the Borrower and/or the applicable Subsidiaries had such entity(ies) filed on a stand-alone basis and (y) any such payments attributable to an Unrestricted Subsidiary shall be limited to the amount of any cash paid by such Unrestricted Subsidiary to the Borrower or any Restricted Subsidiary for such purpose; (cB) the proceeds of which shall be used to pay such equity holder’s operating costs and expenses, other overhead costs and expenses and fees, in each case, which are directly attributable to the ownership or operations of the Borrower and each Subsidiary may purchaseits subsidiaries; or (C) the proceeds of which shall be used to pay customary salary, redeem bonus and other benefits payable to, and indemnities provided on behalf of, officers and employees of any direct or otherwise acquire shares indirect parent of the Borrower to the extent such salaries, bonuses, other benefits and indemnities are directly attributable to the ownership or operation of the Borrower and its common stock or other common Equity Interests or warrants or options to acquire any such shares in connection with customary employee or management agreements, plans or arrangementsRestricted Subsidiaries; (dxii) any Junior Debt Restricted Payments; provided that, at the time of, and after giving effect thereto on a pro forma basis (x) no Default shall have occurred and be continuing and (y) the Borrower shall be permitted to make in compliance with Section 6.10 as of the end of the most recently ended Test Period; (xiii) Restricted Payments in connection with the form of cash dividends Match Transactions; and (xiv) prior to the shareholders of the Borrower Term B-1 Loan Repayment Date, Restricted Payments in an aggregate amount in any fiscal year not to exceed $10,000,000the portion of the Retained Excess Cash Flow Amount on the date of such election that the Borrower elects to apply to this Section 6.05(xiv) in a written notice of a Responsible Officer thereof, which notice shall set forth the Retained Excess Cash Flow Amount (and the calculation thereof in reasonable detail) immediately prior to such election and the amount thereof elected to be so applied; provided that, any amount of cash dividends permitted to be paid by this clause (d) but not paid in respect of any fiscal year commencing on or that after October 1, 2006, may be carried forward and paid in any subsequent fiscal year; (e) the Borrower and each Subsidiary shall be permitted to make other Restricted Payments in the form of cash dividends, distributions, purchases, redemptions or other acquisitions of or with respect to shares of its common stock or other common Equity Interests either (i) if at the time of making such Restricted Payment the Consolidated Leverage Ratio (calculated giving effect thereto on a pro forma basis giving effect to such Restricted Payment (i) no Default shall have occurred and any Indebtedness incurred in connection therewith and any other relevant factor, all in accordance with Sections 1.04(c) and (d)) is not greater than 3.50 to 1.00, on an unlimited basis, be continuing and (ii) if at the time of making such Restricted Payment the Consolidated Net Leverage Ratio (calculated on a pro forma basis giving effect is equal to such Restricted Payment and any Indebtedness incurred in connection therewith and any other relevant factor, all in accordance with Sections 1.04(c) and (d)) is greater than 3.50 to 1.00 but or less than the maximum permitted level for the most recently ended fiscal quarter set forth in Section 8.12(a), in an amount in any fiscal year of the Borrower not greater than the Maximum Annual Payment Amount (less any portion of the Maximum Annual Payment Amount utilized 4.50 to make Investments pursuant to Section 8.02(o) or to prepay or otherwise satisfy Indebtedness pursuant to Section 8.11(a)(iv))1.00.

Restricted Payments. Declare The Borrower will not, and will not permit any Subsidiary to, declare or make, directly or indirectly, make any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that: (i) each Subsidiary may declare and make Restricted Payments to any Person that owns an Equity Interest in such Subsidiary, ratably according to their respective holdings of such Equity Interests in respect of which such Restricted Payment is being made; (ii) the Borrower and each case Subsidiary may declare and make Restricted Payments payable solely in common Equity Interests of such Person; (except Section 8.06(aiii) any Subsidiary may declare and make Restricted Payments to (x) the Borrower or (y) any other Subsidiary which is a direct or indirect parent company of such Subsidiary; (iv) the Borrower and each Subsidiary may purchase, redeem or otherwise acquire Equity Interests issued by it with the proceeds received from the substantially concurrent issue of new common Equity Interests if after giving effect to such Restricted Payment on a pro-forma basis no Default or Event of Default shall have occurred and be continuing at the time of the declaration of such Restricted Payment; (v) the Borrower may (and any Subsidiary may make RestrictedPayments as shall be required for the Borrower to) make Restricted Payments in an amount sufficient to allow (x) the Borrower to pay fees, expenses and indemnities pursuant to the Management Agreement (as in effect on the Restatement Effective Date)) , so long as as, solely with respect to the payment of such fees, no Default or Event of Default shall have occurred and be continuing (both before it being understood that, for so long as any Default or Event of Default has occurred and after is continuing, such fees may continue to accrue and any such accrued fees may be paid upon any and all Defaults and Events of Default ceasing to exist), and (y) to pay general corporate operating and overhead costs and expenses (other than taxes) incurred by the making Borrower in the ordinary course of such Restricted Payment): (a) each Restricted Subsidiary may make Restricted Payments business, to the extent attributable to the ownership or operation of the Borrower and to wholly-owned Restricted Subsidiaries (and, in the case of a Restricted Payment by a non-wholly-owned Restricted Subsidiary, to the Borrower and any Restricted Subsidiary and to each other owner of capital stock or other equity interests of such Restricted Subsidiary on a pro rata basis based on their relative ownership interests);its Subsidiaries. (bvi) the Borrower and each Subsidiary may declare and make dividend payments or other distributions payable solely any Restricted Payments after the date hereof in an amount not to exceed $6,000,000 in the common stock aggregate in any calendar year (with unused amounts in any calendar year being permitted to be carried over and made in any succeeding calendar year), in each case if after giving effect to any such Restricted Payment on a pro-forma basis (1) no Default or other common Equity Interests Event of Default shall have occurred and be continuing at the time of the declaration of such PersonRestricted Payment and (2) the Borrower is in compliance with the covenants set forth in Section 7.11 as of the then most recently ended fiscal quarter of the Borrower; (cvii) the Borrower and any Subsidiary may declare and make any Restricted Payment if after giving effect to such Restricted Payment on a pro-forma basis (1) no Default or Event of Default shall have occurred and be continuing at the time of the declaration of such Restricted Payment, (2) the Borrower is in compliance with the covenants set forth in Section 7.11 and (3) the Consolidated Total Debt to Capitalization Ratio, on a pro forma basis, as of the last day of the most recently ended fiscal period for which financial statements have been delivered or furnished pursuant to Section 4.01(a)(vii), Section 6.01(i) or Section 6.01(ii), as applicable, shall be no greater than 15%; and (viii) after a Qualified IPO, the Borrower and each Subsidiary may purchase, redeem or otherwise acquire shares of its common stock or other common Equity Interests or warrants or options to acquire declare and make any such shares in connection with customary employee or management agreements, plans or arrangements; (d) the Borrower shall be permitted to make Restricted Payments in the form of cash dividends to the shareholders of the Borrower in an aggregate amount in any fiscal year consecutive twelve (12) month period, not to exceed $10,000,000; provided that, any amount 6.0% of cash dividends permitted to be paid by this clause (d) but not paid in respect of any fiscal year commencing on or Market Capitalization if after October 1, 2006, may be carried forward and paid in any subsequent fiscal year; (e) the Borrower and each Subsidiary shall be permitted to make other Restricted Payments in the form of cash dividends, distributions, purchases, redemptions or other acquisitions of or with respect to shares of its common stock or other common Equity Interests either (i) if at the time of making such Restricted Payment the Consolidated Leverage Ratio (calculated on a pro forma basis giving effect to such Restricted Payment on a pro-forma basis (1) no Default or Event of Default shall have occurred and any Indebtedness incurred in connection therewith and any other relevant factor, all in accordance with Sections 1.04(c) and (d)) is not greater than 3.50 to 1.00, on an unlimited basis, and (ii) if be continuing at the time of making such Restricted Payment the Consolidated Leverage Ratio (calculated on a pro forma basis giving effect to declaration of such Restricted Payment and any Indebtedness incurred (2) the Borrower is in connection therewith and any other relevant factor, all compliance with the covenants set forth in accordance with Sections 1.04(c) and (d)) is greater than 3.50 to 1.00 but less than Section 7.11 as of the maximum permitted level for the then most recently ended fiscal quarter set forth in Section 8.12(a), in an amount in any fiscal year of the Borrower not greater than the Maximum Annual Payment Amount (less any portion of the Maximum Annual Payment Amount utilized to make Investments pursuant to Section 8.02(o) or to prepay or otherwise satisfy Indebtedness pursuant to Section 8.11(a)(iv)).Borrower;

Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that: (a) the Borrower may (i) make Restricted Payments in the form of Equity Interests (other than Disqualified Equity Interests) of the Borrower and (ii) redeem in whole or in part any of its Equity Interests for another class of Equity Interests (other than Disqualified Equity Interests) of the Borrower; (b) the Borrower may make repurchases or redemptions of its Equity Interests issued to directors, officers, or employees of the Borrower or any Subsidiary in each case an amount not exceeding $750,000 in the aggregate for any Fiscal Year (except Section 8.06(awith no carryover of unused amounts to subsequent Fiscal Years)) so long as ; provided no Default or Event of Default shall have occurred and be continuing (both before and after the making of such Restricted Payment): (a) each Restricted Subsidiary may make Restricted Payments to the Borrower and to wholly-owned Restricted Subsidiaries (and, in the case of a Restricted Payment by a non-wholly-owned Restricted Subsidiary, to the Borrower and any Restricted Subsidiary and to each other owner of capital stock or other equity interests of such Restricted Subsidiary on a pro rata basis based on their relative ownership interests)would result therefrom; (bc) the Borrower each Loan Party and each Restricted Subsidiary may declare and make dividend payments or other distributions payable solely in the common stock or other common Equity Interests of such Person; (cd) the Borrower and each a Restricted Subsidiary may purchasepay dividends (or, redeem in the case of any partnership or otherwise acquire shares limited liability company, any similar distribution) to the holders of its common stock or other common Equity Interests or warrants or options to acquire any such shares in connection with customary employee or management agreements, plans or arrangements; (d) the Borrower shall be permitted to make Restricted Payments in the form of cash dividends to the shareholders of the Borrower in an aggregate amount in any fiscal year not to exceed $10,000,000; provided that, any amount of cash dividends permitted to be paid by this clause (d) but not paid in respect of any fiscal year commencing on or after October 1, 2006, may be carried forward and paid in any subsequent fiscal yeara pro rata basis; (e) the Borrower and each Subsidiary shall be permitted to make other Restricted Payments in the form of cash dividendsmay repurchase, distributions, purchases, redemptions redeem or other acquisitions of or with respect to shares of retire its common stock or other common Equity Interests either in an aggregate amount [***] following the Closing Date and thereafter with the prior written consent of the Required Lenders; provided that (i) if at no Event of Default shall have occurred and be continuing or would result therefrom and (ii) the time Loan Parties shall be in pro forma compliance with the financial covenants in Section 7.01 for the relevant period ended immediately prior to the proposed date of making such Restricted Payment the Consolidated Leverage Ratio (calculated on a pro forma basis after giving effect to such Restricted Payment Payment; and (f) the Borrower and any Indebtedness incurred in connection therewith its Restricted Subsidiaries may make Restricted Payments pursuant to and any other relevant factor, all in accordance with Sections 1.04(c) stock option plans for management and (d)) is not greater than 3.50 to 1.00, on an unlimited basis, and (ii) if at the time of making such Restricted Payment the Consolidated Leverage Ratio (calculated on a pro forma basis giving effect to such Restricted Payment and any Indebtedness incurred in connection therewith and any other relevant factor, all in accordance with Sections 1.04(c) and (d)) is greater than 3.50 to 1.00 but less than the maximum permitted level for the most recently ended fiscal quarter set forth in Section 8.12(a), in an amount in any fiscal year employees of the Borrower not greater than the Maximum Annual Payment Amount (less any portion of the Maximum Annual Payment Amount utilized to make Investments pursuant to Section 8.02(o) or to prepay or otherwise satisfy Indebtedness pursuant to Section 8.11(a)(iv))and its Subsidiaries.

Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that, in each case (except Section 8.06(a)) so long as no Default or Event of Default shall have occurred and be continuing (both before and after at the making time of such Restricted Payment):any action described below or would result therefrom: (a) each Restricted Subsidiary may make Restricted Payments to the Borrower, any Subsidiaries of the Borrower that are Loan Parties and any other Person that owns a direct Equity Interest in such Subsidiary, ratably according to wholly-owned Restricted Subsidiaries (and, their respective holdings of the type of Equity Interest in the case respect of a which such Restricted Payment by a non-wholly-owned Restricted Subsidiary, to the Borrower and any Restricted Subsidiary and to each other owner of capital stock or other equity interests of such Restricted Subsidiary on a pro rata basis based on their relative ownership interests)is being made; (b) the Borrower and each Subsidiary may declare and make dividend payments or other distributions payable solely in the common stock or other common subordinated Equity Interests of such PersonPerson and the Borrower may issue common Equity Interests upon the conversion of subordinated Equity Interests; (c) the Borrower and each Subsidiary may purchase, redeem or otherwise acquire shares of its common stock or other common Equity Interests with the proceeds received from the substantially concurrent issue of new common or warrants or options to acquire any such shares in connection with customary employee or management agreements, plans or arrangementssubordinated Equity Interests; (d) the Borrower shall be permitted to may make Restricted Payments to Holdings on the Closing Date as described in “Use of Proceeds” in the form of cash dividends to the shareholders of the Borrower in an aggregate amount in any fiscal year not to exceed $10,000,000; provided that, any amount of cash dividends permitted to be paid by this clause (d) but not paid in respect of any fiscal year commencing on or after October 1, 2006, may be carried forward and paid in any subsequent fiscal yearRegistration Statement; (e) the Borrower and each Subsidiary shall be may make Restricted Payments with respect to any fiscal quarter in an aggregate amount not to exceed Available Cash with respect to such fiscal quarter; (f) the Borrower may make Restricted Payments to holders of convertible Indebtedness permitted pursuant to Section 7.02(h), payable solely in the common or subordinated Equity Interests of the Borrower; and (g) the Borrower may make other Restricted Payments in the form of cash dividends, distributions, purchases, redemptions connection with awards issued under any long term incentive compensation plan by accepting forfeitures or other acquisitions of or with respect to shares of its common stock or other common Equity Interests either (i) if at the time of making such Restricted Payment the Consolidated Leverage Ratio (calculated on a pro forma basis giving effect to such Restricted Payment and any Indebtedness incurred in connection therewith and any other relevant factor, all in accordance with Sections 1.04(c) and (d)) is not greater than 3.50 to 1.00, on an unlimited basis, and (ii) if at the time of making such Restricted Payment the Consolidated Leverage Ratio (calculated on a pro forma basis giving effect to such Restricted Payment and any Indebtedness incurred in connection therewith and any other relevant factor, all in accordance with Sections 1.04(c) and (d)) is greater than 3.50 to 1.00 but less than the maximum permitted level for the most recently ended fiscal quarter set forth in Section 8.12(a), in an amount in any fiscal year of the Borrower not greater than the Maximum Annual Payment Amount (less holding back any portion of the Maximum Annual Payment Amount utilized to make Investments pursuant to Section 8.02(oEquity Interests underlying any such award in exchange for (i) satisfying any recipient tax obligation due upon the vesting of (or to prepay lapse of restrictions upon) such award or otherwise satisfy Indebtedness pursuant to Section 8.11(a)(iv))(ii) waiving the payment of any exercise price in connection with the exercise of any such award.

Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, or, solely in the case of Subsidiaries issue or sell any Equity Interests or accept any capital contributions, except that, in each case (except Section 8.06(a)) so long as (x) with respect to each clause (a) through (g) below, no Default or Event of Default shall have has occurred and be is continuing at the time of any action described therein or would result therefrom, and (both before y) with respect to each clause (d) through (f) below, the Borrower has achieved the Restricted Payments Milestone and after the Restricted Payment Conditions have been satisfied at the time of making of such Restricted Payment):: (a) each Restricted Subsidiary may make Restricted Payments to any Person that owns Equity Interests in such Subsidiary, ratably according to their respective holdings of the Borrower and to wholly-owned Restricted Subsidiaries (and, type of Equity Interest in the case respect of a which such Restricted Payment by a non-wholly-owned Restricted Subsidiary, to the Borrower and any Restricted Subsidiary and to each other owner of capital stock or other equity interests of such Restricted Subsidiary on a pro rata basis based on their relative ownership interests)is being made; (b) the Borrower and each Subsidiary may declare and make dividend payments or other distributions payable solely in the common stock or other common Qualified Equity Interests of such Person; (c) any Subsidiary may issue or sell any Qualified Equity Interest to the Borrower and each or Subsidiary may purchase, redeem if any related or resulting Investment would otherwise acquire shares of its common stock or other common Equity Interests or warrants or options to acquire any such shares in connection with customary employee or management agreements, plans or arrangementsbe permitted under Section 7.03; (d) the Borrower shall be permitted to make Restricted Payments in the form of cash dividends to the shareholders may redeem, repurchase or acquire Qualified Equity Interests of the Borrower in an issued to employees, consultants, agents, officers and directors of the Borrower, provided that the aggregate amount in any fiscal year of all such redemptions do not to exceed $10,000,000; provided that, 500,000 during any amount of cash dividends permitted to be paid by this clause (d) but not paid in respect of any fiscal year commencing on or after October 1, 2006, may be carried forward and paid in any subsequent fiscal year; (e) the Borrower may declare and each Subsidiary shall be permitted to make other Restricted Payments in the form of cash dividends, distributions, purchases, redemptions or other acquisitions of or with respect to shares of pay dividends on its common stock or other common Qualified Equity Interests either (i) if at the time of making such Restricted Payment the Consolidated Leverage Ratio (calculated on a pro forma basis giving effect to such Restricted Payment and any Indebtedness incurred in connection therewith and any other relevant factor, all in accordance with Sections 1.04(c) and (d)) is not greater than 3.50 to 1.00, on an unlimited basis, and (ii) if at the time of making such Restricted Payment the Consolidated Leverage Ratio (calculated on a pro forma basis giving effect to such Restricted Payment and any Indebtedness incurred in connection therewith and any other relevant factor, all in accordance with Sections 1.04(c) and (d)) is greater than 3.50 to 1.00 but less than the maximum permitted level for the most recently ended fiscal quarter set forth in Section 8.12(a), in an aggregate amount not to exceed $2,500,000 in any fiscal year year; (f) the Borrower may repurchase Qualified Equity Interests of the Borrower, provided that the aggregate amount of all such redemptions do not exceed $5,000,000 in any fiscal year; and (g) the Borrower not greater than the Maximum Annual Payment Amount (less any portion of the Maximum Annual Payment Amount utilized to make Investments pursuant to Section 8.02(o) or to prepay or otherwise satisfy Indebtedness pursuant to Section 8.11(a)(iv))may issue Qualified Equity interests.

Restricted Payments. Declare or make, Not directly or indirectlyindirectly declare, order, pay or make any Restricted Payment, Payment or incur set aside any obligation (contingent sum or otherwise) to do so, property therefor except that, in each case (except Section 8.06(a)) so long as no Default or Event of Default shall have occurred and be continuing (both before and after the making of such Restricted Payment):follows: (a) each Restricted Subsidiary The Companies may make Restricted Payments pay monthly Management Fees to the Borrower Manager; provided that (i) such payments shall be subject to the applicable Affiliate Subordination Agreement and (ii) such payments shall not exceed, during any period of twelve (12) consecutive months, the actual cost of providing management and administrative support services to wholly-owned Restricted Subsidiaries the Companies for such period provided further, that from the Third Amendment Effective Date until the Discharge of Parent Term Debt, such payments shall not exceed, during any period of twelve (and12) consecutive months, in the case lesser of a Restricted Payment by a non-wholly-owned Restricted (x) the actual cost of providing management and administrative support services to the Companies (other than the Special Purpose Subsidiary, each Letter-of-Credit Subsidiary and the Finance Subsidiaries) for such period and (y) 120% of the Management Fees paid to the Borrower and any Restricted Subsidiary and to each other owner of capital stock or other equity interests of Manager for the 12 month period immediately preceding such Restricted Subsidiary on a pro rata basis based on their relative ownership interests);period. (b) the Borrower and each Subsidiary may declare and make dividend payments or other distributions payable solely in the common stock or other common Equity Interests of such Person; (c) the Borrower and each Subsidiary may purchase, redeem or otherwise acquire shares of its common stock or other common Equity Interests or warrants or options to acquire any such shares in connection with customary employee or management agreements, plans or arrangements; (d) the Borrower shall be permitted to make Restricted Payments in the form of cash dividends Subject to the shareholders provisions of the Borrower in an aggregate amount in any fiscal year not to exceed $10,000,000; provided that, any amount of cash dividends permitted to be paid by this clause (d) but not paid in respect of any fiscal year commencing on or after October 1, 2006, may be carried forward and paid in any subsequent fiscal year;Affiliate Subordination Agreements: (e) the Borrower and each Subsidiary shall be permitted to make other Restricted Payments in the form of cash dividends, distributions, purchases, redemptions or other acquisitions of or with respect to shares of its common stock or other common Equity Interests either (i) if The Subsidiaries may (A) pay dividends and make distributions to the Borrower or other Subsidiaries holding equity interests in the payor, and (B) make intercompany loans to one another subject to the limitations set forth in Section 7.05 (ii) The Subsidiaries may repay Indebtedness owed to the Borrower or to other Subsidiaries of the Borrower. (iii) The Borrower may (A) pay annual, semi-annual or quarterly dividends or distributions to the Parent solely for the purpose of financing regularly scheduled payments of interest (but not prepayments) due and payable in cash within two Business Days of the date of such dividend or distribution under the Permitted Parent High-Yield Debt and the Permitted Parent Term Debt, and (B) make payments of accrued interest on Indebtedness referenced in clause (A) at the time such Indebtedness is refinanced or replaced by Replacement Parent High-Yield Debt or Replacement Parent Term Debt, as the case may be, to the extent such accrued interest would otherwise have been payable in cash on a date prior to the maturity of making such Restricted Payment debt as a regularly scheduled payment of interest pursuant to clause (A), and (C) on the Consolidated Leverage Ratio Third Amendment Effective Date, make the Initial L/C Capitalization; in each case provided that no Default shall exist as of the date of the proposed payment or after giving effect thereto (calculated both as of such date and on a pro forma basis as of the end of and for the fiscal period(s) most recently ended prior thereto for which financial statements are required to be provided under Section 6.05); and provided further, that the Borrower shall cause the Letter-of-Credit Subsidiary to use all of the proceeds of the Initial L/C Capitalization as cash collateral to secure Indebtedness permitted under Section 7.01(o). (iv) The Borrower may pay dividends or distributions to the Parent, Pegasus Communications Corporation or its Affiliates for the purpose of paying (A) operating costs and Capital Expenditures for development projects related to the delivery of multichannel video or broadband services, (B) corporate overhead in excess of overhead allocated to the Borrower and its Subsidiaries and Capital Expenditures related thereto, and (C) incentive compensation in excess of amounts allocated to the Borrower and its Subsidiaries, provided that in any such case (i) no Default shall exist as of the date of the proposed payment or after giving effect thereto (calculated both as of such date and on a pro forma basis as of the end of and for the fiscal period(s) most recently ended prior thereto for which financial statements are required to such Restricted Payment and any Indebtedness incurred in connection therewith and any other relevant factor, all in accordance with Sections 1.04(c) and (dbe provided under Section 6.05)) is not greater than 3.50 to 1.00, on an unlimited basis, and (ii) if at the aggregate amount of all such dividends or distributions paid to the Parent, Pegasus Communications Corporation or its Affiliates after the Fourth Amendment Effective Date shall not exceed $12,000,000 in any 12-month period ending on any anniversary of the Fourth Amendment Effective Date. (v) The Borrower may make Tax Sharing Payments to the Parent provided that the same shall reflect adjustments for all credits and deductions enjoyed by the Parent. (vi) The Borrower may pay dividends or distributions to the Parent from time to time solely for the purpose of making such Restricted Payment funding out-of-pocket legal fees and expenses incurred in connection with (1) the Consolidated Leverage Ratio litigation encaptioned Pegasus Development Corporation et al. v. DirecTV Inc. et al., pending in the United States District Court for the District of Delaware, and any appeals thereof (the "Patent Litigation") and (2) the litigations involving the NRTC or DirecTV as named parties that are reasonably related to the enforcement or interpretation of the Companies' DBS Rights, including the consolidated cases encaptioned Pegasus Satellite Television Inc. et. al. v. DirecTV Inc., et al. pending in the United States District Court for the Central District of California, any and all other arbitral or judicial proceedings involving DirecTV and/or any of its Affiliates, on the one hand, and the Borrower and/or any of its Affiliates and/or the NRTC, on the other hand, that are reasonably related to the foregoing, and any appeals thereof (collectively, the "DBS Rights Litigation," and, collectively with the Patent Litigation, the "Litigation"), in an aggregate amount from and after the Third Amendment Effective Date not to exceed the lesser of (x) the actual out-of-pocket legal fees and expenses incurred by the Companies, Pegasus Communications Corporation or any of its Subsidiaries other than the Companies in connection with the Litigation after the Third Amendment Effective Date and (y) $22,000,000; provided that no Default shall exist as of the date of the proposed payment or after giving effect thereto (calculated both as of such date and on a pro forma basis as of the end of and for the fiscal period(s) most recently ended prior thereto for which financial statements are required to be provided under Section 6.05). (vii) The Borrower may make advances or capital contributions to the Letter-of-Credit Subsidiaries from time to time, provided that (x) in any such case no Default shall exist as of the date of the proposed payment or after giving effect thereto (calculated both as of such date and on a pro forma basis as of the end of and for the fiscal period(s) most recently ended prior thereto for which financial statements are required to be provided under Section 6.05), and (y) the aggregate amount of all such advances or capital contributions paid and/or made to all Letter-of-Credit Subsidiaries after the Fourth Amendment Effective Date shall not exceed $31,000,000. (viii) In addition to the foregoing, the Borrower may pay further dividends or distributions to the Parent from time to time, and make advances or capital contributions to the Letter-of-Credit Subsidiaries from time to time, provided that in any such case: (A) no Default shall exist as of the date of the proposed payment or after giving effect thereto (calculated both as of such date and on a pro forma basis as of the end of and for the fiscal period(s) most recently ended prior thereto for which financial statements are required to be provided under Section 6.05), and (B) (1) the aggregate amount of all such dividends or distributions paid to the Parent and all such advances or capital contributions to all Letter-of-Credit Subsidiaries made on or after the Fourth Amendment Effective Date, minus (2) the sum of (x) the aggregate cash purchase price paid by the Parent for all assets contributed to the Borrower and acquired by the Parent not more than 90 days prior to the date of such contribution, plus (y) the aggregate amount of all cash equity contributions made to the Borrower (other than from DBS Rights Litigation Proceeds, from Patent Litigation Proceeds to the extent such proceeds are required to be reimbursed to the Borrower pursuant to clause (s)(ii)(A) of Article VIII or from proceeds of a Disposition of assets of any of the Companies or, without duplication, from proceeds of the Parent Term Loan) after the Fourth Amendment Effective Date shall not exceed $12,000,000. Notwithstanding anything in this Section 5.04(b) to the contrary, the Restricted Payments described in clauses (v) and (vii) of this Section 5.04(b) shall be permitted to be made under this Section 5.04 only to the extent the entire amount of each such Restricted Payment is applied as promptly as possible (and any Indebtedness incurred in connection therewith and any other relevant factor, all in accordance with Sections 1.04(c) and (d)) is greater than 3.50 to 1.00 but less than the maximum permitted level for the most recently ended fiscal quarter set forth in Section 8.12(a), in an amount in any fiscal year of event no later than two Business Days after such Restricted Payment is made by the Borrower not greater than Borrower) to the Maximum Annual Payment Amount (less any portion of purpose specified in the Maximum Annual Payment Amount utilized to make Investments pursuant to Section 8.02(o) or to prepay or otherwise satisfy Indebtedness pursuant to Section 8.11(a)(iv))relevant clause.

Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, or incur permit any obligation (contingent or otherwise) Restricted Subsidiary to do soany of the foregoing, except that, in each case (except Section 8.06(a)) so long as no Default or Event of Default shall have occurred and be continuing (both before and after the making of such Restricted Payment):: (a) each Restricted Subsidiary may make Restricted Payments to the Borrower and holders of its Equity Interests, ratably according to wholly-owned Restricted Subsidiaries (and, their respective holdings of the type of Equity Interest in the case respect of a which such Restricted Payment by a non-wholly-owned Restricted Subsidiary, to the Borrower and any Restricted Subsidiary and to each other owner of capital stock or other equity interests of such Restricted Subsidiary on a pro rata basis based on their relative ownership interests)is being made; (b) the Parent Borrower and each Restricted Subsidiary may declare and make dividend payments or other distributions payable solely in the common stock or other common Equity Interests of such Person; (c) the Parent Borrower and each Restricted Subsidiary may purchase, redeem or otherwise acquire Equity Interests issued by it (i) with the proceeds received from the substantially concurrent issue of new shares of its common stock or other common Equity Interests or (ii) upon the exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or options to acquire any such shares in connection with customary employee or management agreements, plans or arrangementswarrants; (d) to the extent constituting a Restricted Payment, the Parent Borrower and its Restricted Subsidiaries may enter into and consummate transactions otherwise expressly permitted under this Agreement; (e) the Parent Borrower may declare and make dividend payments in accordance with its historical dividend policy in an aggregate amount not to exceed $50,000,000 in any Fiscal Year; (f) so long as no Default or Event of Default shall have occurred and be permitted to continuing or would result therefrom, the Parent Borrower may make Restricted Payments in an aggregate amount not to exceed $50,000,000 in any Fiscal Year; and (g) the form Parent Borrower and any Restricted Subsidiary may make additional Restricted Payments not otherwise permitted pursuant to this Section 9.12; provided that, immediately before and immediately after giving pro forma effect to the making of any such Restricted Payment and any Debt incurred in connection therewith (i) no Default or Event of Default shall have occurred and be continuing or would result therefrom and (ii) the Consolidated Net Leverage Ratio is not greater than 3.50 to 1.00 as of the last day of the most recently ended Fiscal Quarter for which financial statements have been delivered pursuant to Section 7.1(a)(i) or (a)(ii); provided, however, that this Section 9.12(g) shall not prohibit the payment of any such cash dividends to the shareholders of the Parent Borrower in an aggregate amount in any fiscal year not to exceed $10,000,000; provided thatwithin 60 days after the date of declaration thereof, any amount of cash dividends permitted to be paid by this clause (d) but not paid in respect of any fiscal year commencing on or after October 1, 2006, may be carried forward and paid in any subsequent fiscal year; (e) the Borrower and each Subsidiary shall be permitted to make other Restricted Payments in the form of cash dividends, distributions, purchases, redemptions or other acquisitions of or with respect to shares of its common stock or other common Equity Interests either (i) if at the time of making such Restricted Payment the Consolidated Leverage Ratio (calculated on a pro forma basis giving effect to such Restricted Payment and any Indebtedness incurred in connection therewith and any other relevant factor, all in accordance with Sections 1.04(c) and (d)) is not greater than 3.50 to 1.00, on an unlimited basis, and (ii) if at the time of making such Restricted Payment the Consolidated Leverage Ratio (calculated on a pro forma basis giving effect to such Restricted Payment and any Indebtedness incurred in connection therewith and any other relevant factor, all in accordance with Sections 1.04(c) and (d)) is greater than 3.50 to 1.00 but less than the maximum permitted level for the most recently ended fiscal quarter set forth in Section 8.12(a), in an amount in any fiscal year as of the Borrower not greater than the Maximum Annual Payment Amount (less any portion date of the Maximum Annual Payment Amount utilized to make Investments pursuant to declaration such payment would have been permitted under this Section 8.02(o) or to prepay or otherwise satisfy Indebtedness pursuant to Section 8.11(a)(iv)9.12(g).

Restricted Payments. Declare or makepay any dividend (other than dividends payable solely in common stock of the Person making such dividend) on, or make any payment on account of, or set apart assets for a sinking or other analogous fund for, the purchase, redemption, defeasance, retirement or other acquisition of, any Capital Stock of the Borrower or any of its Subsidiaries, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of the Borrower or any of its Subsidiaries (collectively, “Restricted PaymentPayments”), except: (a) the Borrower may make payments and other distributions to Holdings (or incur any obligation its designee) contemplated by and in accordance with Section 4.19; (contingent or otherwise) to do so, except that, in each case (except Section 8.06(a)b) so long as the Distribution Conditions are satisfied as of the date of any Restricted Payment the Borrower may make payments and other distributions to the Sponsor (or its designee) contemplated by and in accordance with Section 3.8(b) of the Depositary Agreement; (c) any Subsidiary of the Borrower may make Restricted Payments to the Borrower or any Subsidiary Guarantor; (d) the Borrower may make payments to Holdings (or its designee) to reimburse Holdings for general and administrative costs of the Project directly incurred by Holdings and other corporate overhead expenses in the ordinary course of business not to exceed $1,000,000 in any fiscal year; (e) the Borrower may reimburse any Affiliate of the Borrower for the costs of obtaining, maintaining, renewing and amending any Acceptable Sponsor Letter of Credit as contemplated by clause (o) of the definition of O&M Costs or clause (iii) of priority Third of Section 3.1(b) of the Depositary Agreement; (f) so long as no Event of Default shall have occurred and be continuing, the Borrower may make payments and other distributions to Holdings or its Affiliates (or their respective designees) at any time equal to the amount of any taxes described in clause (a) of the definition of “Net Cash Proceeds” (provided that, for purposes of this clause (f) and determining the amount of such taxes, Asset Sales referred to in the definition of “Net Cash Proceeds” shall be deemed to include Dispositions permitted pursuant to Section 7.5(i)); (g) if no Default or Event of Default shall have occurred and be continuing (both before and after continuing, the making of such Restricted Payment): (a) each Restricted Subsidiary may make Restricted Payments to the Borrower and to wholly-owned Restricted Subsidiaries (andBorrower, in the case of a Restricted Payment by a non-wholly-owned Restricted Subsidiary, to the Borrower and any Restricted Subsidiary and to each other owner of capital stock or other equity interests of such Restricted Subsidiary on a pro rata basis based on their relative ownership interests); (b) the Borrower and each Subsidiary may declare and make dividend payments or other distributions payable solely in the common stock or other common Equity Interests of such Person; (c) the Borrower and each Subsidiary may purchase, redeem or otherwise acquire shares of its common stock or other common Equity Interests or warrants or options to acquire any such shares in connection with customary employee or management agreements, plans or arrangements; (d) the Borrower shall be permitted to make Restricted Payments in the form of cash dividends to the shareholders of the Borrower in an aggregate amount in any fiscal year not to exceed $10,000,000; provided thatSpecified Asset Disposition, any amount of cash dividends permitted to be paid by this clause (d) but not paid Net Cash Proceeds in respect excess of any fiscal year commencing on or after October 1, 2006, may be carried forward and paid in any subsequent fiscal year;the Specified AD Prepayment Amount relating thereto; and (e) the Borrower and each Subsidiary shall be permitted to make other Restricted Payments in the form of cash dividends, distributions, purchases, redemptions or other acquisitions of or with respect to shares of its common stock or other common Equity Interests either (ih) if at no Default or Event of Default shall have occurred and be continuing, the time of making such Restricted Payment the Consolidated Leverage Ratio (calculated on a pro forma basis giving effect to such Restricted Payment and any Indebtedness incurred Borrower, in connection therewith and with any other relevant factorPPA Buyout, all any amount of Net Cash Proceeds in accordance with Sections 1.04(c) and excess of the PPA Buyout Prepayment Amount relating thereto (d)) is not greater than 3.50 to 1.00which, on an unlimited basis, and (ii) if at the time of making such Restricted Payment the Consolidated Leverage Ratio (calculated on a pro forma basis giving effect to such Restricted Payment and any Indebtedness incurred in connection therewith and any other relevant factor, all in accordance with Sections 1.04(c) and (d)) is greater than 3.50 to 1.00 but less than the maximum permitted level for the most recently ended fiscal quarter set forth avoidance of doubt, is subject to the application of the Net Cash Proceeds in Section 8.12(a), in an amount in any fiscal year of the Borrower not greater than the Maximum Annual Payment Amount (less any portion of the Maximum Annual Payment Amount utilized to make Investments pursuant to Section 8.02(o) or to prepay or otherwise satisfy Indebtedness pursuant to Section 8.11(a)(iv2.9(a)(iv)(B)).. 105 Sunshine (National) – Credit Agreement

Restricted Payments. Declare or makeThe Borrower will not, directly or indirectly, nor will it permit any of its Restricted Subsidiaries to pay any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that, in each case (except Section 8.06(a)) so long as no Default or Event of Default shall have occurred and be continuing (both before and after the making of such Restricted Payment):except: (a) each Restricted Subsidiary may to make Restricted Payments to the Borrower and to wholly-owned Restricted Subsidiaries (and, in the case of a Restricted Payment by a non-wholly-owned Restricted Subsidiary, to the Borrower and any Restricted Subsidiary and to each other owner of capital stock or other equity interests of such Restricted Subsidiary on a pro rata basis based on their relative ownership interests); (b) the Borrower and each Subsidiary may declare and make dividend payments dividends or other distributions payable solely in the common stock or other common same class of Equity Interests of such Person; (b) to make dividends or other distributions payable to any Credit Party (directly or indirectly through Subsidiaries); (c) subject to the Borrower subordination terms thereof, to make regularly scheduled interest payments, and each Subsidiary may purchasepayments of fees, redeem or otherwise acquire shares of its common stock or other common Equity Interests or warrants or options to acquire expenses and indemnification obligations as and when due, under any such shares in connection with customary employee or management agreements, plans or arrangementsSubordinated Indebtedness; (d) the Borrower shall be permitted to make Restricted Payments in the form repurchase, redemption or other acquisition or retirement for value of cash dividends to the shareholders any Equity Interests of the Borrower or any Restricted Subsidiary of the Borrower held by any current or former officer, director or employee of the Borrower or any of its Restricted Subsidiaries pursuant to any equity subscription agreement, stock option agreement, shareholders’ agreement or similar agreement; provided that (i) the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may not exceed the greater of (A) $75,000,000 and (B) 3.5% of Consolidated Net Tangible Assets in an aggregate any 12-month period plus the portion of such amount available but unused from prior 12-month periods and (ii) such amount in any fiscal year 12-month period may be increased by an amount not to exceed $10,000,000; provided that(A) the net cash proceeds received by the Borrower from the sale of Equity Interests (other than Disqualified Stock) of the Borrower that occurs after the Closing Date (to the extent such cash proceeds from the sale of such Equity Interests have not otherwise been applied to the payment of Restricted Payments), any plus (B) the net cash proceeds of key man life insurance policies received by the Borrower and its Restricted Subsidiaries after the Closing Date, less (C) the amount of cash dividends permitted any Restricted Payments made pursuant to be paid by clauses (ii)(A) and (ii)(B) of this clause (d) but not paid in respect of any fiscal year commencing on or after October 1, 2006, may be carried forward and paid in any subsequent fiscal year); (e) the repurchase of Equity Interests deemed to occur (i) upon the exercise of stock options, warrants or other convertible securities (other than, for the avoidance of doubt, convertible securities constituting Convertible Bond Indebtedness) to the extent such Equity Interests represent a portion of the exercise price thereof or (ii) upon the transfer of shares of restricted stock to the Borrower in connection with the payment of withholding tax by the Borrower or a Restricted Subsidiary following a sale of shares of restricted stock by the holder thereof; (f) so long as no Event of Default has occurred and each Subsidiary shall be permitted is continuing or would result therefrom, (i) to make dividends, repurchase shares of its Equity Interests and make other Restricted Payments in an aggregate amount not to exceed the form greater of cash (A) $325,000,000 and (B) 15% of Consolidated Net Tangible Assets for the period from the Closing Date through the Term Loan A Maturity Date and (ii) if the Consolidated Net Leverage Ratio as of the last day of the most recently ended Test Period would be less than or equal to 3.75 to 1.00 on a Pro Forma Basis, after giving effect thereto, to make unlimited dividends, distributionsshare repurchases and other Restricted Payments (it being understood and agreed that Restricted Payments made pursuant to this clause (ii) shall not be included in the calculation of the amount available for Restricted Payments pursuant to the foregoing clause (i)); (g) the Borrower may (i) enter into Capped Call Transactions, purchasesConvertible Bond Hedge Transactions and Warrant Transactions in connection with the issuance of Convertible Bond Indebtedness permitted under Section 8.01(q) and satisfy its obligations to pay premiums upon entering into such transactions and (ii) make any payment in connection therewith by delivery of shares of the Borrower’s common stock upon net share settlement thereof (together with cash in lieu of fractional shares) or set-off, redemptions netting and/or payment of an early termination payment or other acquisitions of or with respect to similar payment thereunder upon any early termination thereof, in each case made in Borrower’s common stock; (h) the Borrower may issue shares of its common stock stock, make cash payments of interest required pursuant to the related indenture, make cash payments required to be made under the related indenture in an amount (excluding any required payment of interest with respect to such Convertible Bond Indebtedness and excluding any payment of cash in lieu of a fractional share) equal to or other common Equity Interests either less than the principal amount of the Convertible Bond Indebtedness in respect of which such cash payment is made and/or make cash payments in lieu of issuing fractional shares, in each case, to satisfy obligations in respect of Convertible Bond Indebtedness (including, for the avoidance of doubt, cash payments in lieu of issuing fractional shares pursuant to the terms of any related Capped Call Transaction, Convertible Bond Hedge Transaction or Warrant Transaction); (i) if at the time Borrower may make cash payments to satisfy obligations in respect of making Convertible Bond Indebtedness, Capped Call Transactions, Convertible Bond Hedge Transactions and Warrant Transactions solely to the extent the Borrower does not have the option of satisfying such payment obligations through the issuance of the Borrower’s common stock or is required to satisfy such payment obligations in cash, it being understood and agreed that any payment made in cash in connection with Convertible Bond Indebtedness, Capped Call Transactions, Convertible Bond Hedge Transactions and Warrant Transactions by set-off, netting and/or payment of an early termination payment or similar payment thereunder upon any early termination thereof, in each case, after using commercially reasonable efforts to satisfy such obligation (or the portion thereof remaining after giving effect to any netting or set-off against termination or similar payments under an applicable Convertible Bond Hedge Transaction) by delivery of shares of the Borrower’s common stock shall be deemed to be a payment obligation required to be satisfied in cash; (j) the Borrower may receive shares of its own common stock and/or cash on account of settlements and/or early terminations or unwinds howsoever documented or agreed of any Convertible Bond Hedge Transactions, Capped Call Transactions or Warrant Transactions; (k) the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Borrower in connection with any Convertible Bond Indebtedness with proceeds received (or substantially simultaneously received) from the issuance of such Convertible Bond Indebtedness, in an aggregate amount not to exceed the greater of (i) $150,000,000 and (ii) 7% of Consolidated Net Tangible Assets, it being understood and agreed that any payment, repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Borrower made in connection with any Permitted Refinancing shall be permitted and shall not be subject to any dollar limitation; (l) other Restricted Payment Payments not permitted by the Consolidated Leverage Ratio foregoing clauses; provided that (calculated on a pro forma basis i) no Event of Default shall exist immediately before and immediately after giving effect to such Restricted Payment and any Indebtedness incurred in connection therewith and any other relevant factorPayment, all in accordance with Sections 1.04(c) and (d)) is not greater than 3.50 to 1.00, on an unlimited basis, and (ii) if at the time of making such Restricted Payment Credit Parties shall be in compliance with the Consolidated Leverage Ratio (calculated financial covenants in Section 7.07 on a pro forma basis Pro Forma Basis after giving effect to such Restricted Payment and any Indebtedness incurred in connection therewith and any other relevant factorPayment, all in accordance with Sections 1.04(c) and (d)iii) is greater than 3.50 the aggregate amount of all Restricted Payments made pursuant to 1.00 but less than this clause (l) plus the maximum permitted level for the most recently ended fiscal quarter set forth in Section 8.12(a), in an aggregate amount in any fiscal year of the Borrower not greater than the Maximum Annual Payment Amount (less any portion of the Maximum Annual Payment Amount utilized to make all Investments made pursuant to Section 8.02(o8.04(b) shall not exceed the greater of (A) $75,000,000 and (B) 3.5% of Consolidated Net Tangible Assets; (m) [reserved]; (n) to the extent constituting a Restricted Payment, the Borrower may consummate any transaction permitted by Section 8.04 (other than clause (g) of the definition of “Permitted Investment”) and/or Section 8.03 (other than Section 8.03(a)(x)); and (o) the Borrower may make payments or distributions to prepay satisfy dissenters’ or otherwise satisfy Indebtedness appraisal rights, pursuant to or in connection with a consolidation, amalgamation, merger or transfer of assets that complies with Section 8.11(a)(iv))8.03.

Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, or incur any obligation except: (contingent or otherwisea) the Subsidiaries may make Restricted Payments to the Borrower; (b) to do sothe extent constituting Restricted Payments, except thatthe Borrower and its Subsidiaries may enter into and consummate transactions otherwise expressly permitted by any provision of Section 7.08; (c) payments made or expected to be made by the Borrower or any of its Subsidiaries in respect of withholding or similar Taxes payable by any future, present or former employee, director, manager or consultant (or any spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees of any of the foregoing) and any repurchases of Equity Interests in each case consideration of such payments including deemed repurchases in connection with the exercise of stock options, provided that (except Section 8.06(a)i) so long as no Default or Event of Default shall have has occurred and is continuing, (ii) no Borrowing Base Deficiency exists or would be continuing caused thereby and (both before and after the making of iii) such Restricted Payment): (a) each Restricted Subsidiary may make Restricted Payments to the Borrower and to wholly-owned Restricted Subsidiaries (and, in the case of a Restricted Payment by a non-wholly-owned Restricted Subsidiary, to the Borrower and any Restricted Subsidiary and to each other owner of capital stock or other equity interests of such Restricted Subsidiary on a pro rata basis based on their relative ownership interests); (b) the Borrower and each Subsidiary may declare and make dividend payments or other distributions payable solely in the common stock or other common Equity Interests of such Person; (c) the Borrower and each Subsidiary may purchase, redeem or otherwise acquire shares of its common stock or other common Equity Interests or warrants or options to acquire any such shares in connection with customary employee or management agreements, plans or arrangementsis not made during an Interim Borrowing Base Restriction Period; (d) the Borrower shall be permitted to may make Restricted Payments in the form provided that (i) no Default or Event of cash dividends Default has occurred and is continuing, (ii) that no Borrowing Base Deficiency exists or would be caused thereby, (iii) both before and after giving effect to the shareholders of such Restricted Payment, the Borrower would be in Pro Forma Compliance with the Financial Performance Covenants and (iv) and such Restricted Payment is not made during an aggregate amount in any fiscal year not to exceed $10,000,000Interim Borrowing Base Restriction Period; provided that, any amount of cash dividends permitted to be paid by this clause (d) but not paid in respect of any fiscal year commencing on or after October 1, 2006, may be carried forward and paid in any subsequent fiscal year;and (e) the Borrower and each Subsidiary shall be permitted to may make other Restricted Payments in to any direct or indirect parent of the form of cash dividends, distributions, purchases, redemptions or other acquisitions of or with respect to shares of its common stock or other common Equity Interests either Borrower: (i) if at the time proceeds of making such Restricted Payment which shall be used to pay franchise and excise taxes and other fees, taxes and expenses required to maintain its corporate existence; and (ii) the Consolidated Leverage Ratio proceeds of which shall be used to make distributions to any member in an aggregate amount in respect of each calendar year that is not in excess of the product of (calculated on a pro forma basis giving effect x) the amount of net taxable income allocated to such Restricted Payment member (net of (i) cumulative taxable losses allocated to the member for any taxable period and any Indebtedness incurred in connection therewith and any other relevant factor, all in accordance with Sections 1.04(c) and (d)) is not greater than 3.50 to 1.00, on an unlimited basis, previously taken into account and (ii) if any depletion calculated at the time of making such Restricted Payment member level, utilizing the Consolidated Leverage Ratio (calculated on a pro forma basis giving effect to such Restricted Payment and any Indebtedness incurred in connection therewith and any other relevant factor, all in accordance with Sections 1.04(c) and (d)) is greater than 3.50 to 1.00 but less than the maximum permitted level for the most recently ended fiscal quarter set forth in Section 8.12(acost depletion method), in an amount in any fiscal year whether such income is treated as a distributive share of the income of a Borrower not greater than or as a “guaranteed payment,” or otherwise, multiplied by (y) the Maximum Annual Payment Amount (less any portion of the Maximum Annual Payment Amount utilized to make Investments pursuant to Section 8.02(o) or to prepay or otherwise satisfy Indebtedness pursuant to Section 8.11(a)(iv))Presumed Tax Rate for such period.

Restricted Payments. Declare With respect to the Borrower, declare or makepay any dividend or make any distribution on its capital stock or purchase, directly redeem, acquire or indirectlyotherwise retire any capital stock for value (in each case, any a "Restricted Payment"); provided, however, that the Borrower may make a Restricted Payment so long as, at the time of, and after giving effect to, the proposed Restricted Payment: (a) no Default or incur any obligation Event of Default shall have occurred and be continuing and (contingent or otherwiseb) the aggregate amount expended for all Restricted Payments (the amount so expended, if other than in cash, to do sobe determined in good faith by the Board of Directors) would not exceed fifty percent (50%) of the aggregate amount of the consolidated net income of the Borrower and its consolidated Subsidiaries excluding the Lightship Tanker Entities for the fiscal year ended immediately prior to the fiscal year in which such proposed Restricted Payment is to be made determined in accordance with GAAP. Notwithstanding the preceding sentence, except that, in each case (except Section 8.06(a)w) the Borrower may make Restricted Payments with the proceeds of substantially concurrent capital contributions made by its stock holders so long as no Default or Event of Default shall have occurred and be continuing prior to or after giving effect thereto, (both before x) the Borrower may declare and after pay dividends with respect to its Equity Interests payable solely in additional shares of its common stock, (y) Subsidiaries of the making of such Restricted Payment): Borrower may declare and pay dividends ratably with respect to their Equity Interests, and (az) each Restricted Subsidiary the Borrower may make Restricted Payments pursuant to and in accordance with stock option plans or other benefit plans for management, directors or employees of the Borrower and to wholly-owned Restricted Subsidiaries (and, in the case of a Restricted Payment by a non-wholly-owned Restricted Subsidiary, to the Borrower and any Restricted Subsidiary and to each other owner of capital stock or other equity interests of such Restricted Subsidiary on a pro rata basis based on their relative ownership interests); (b) the Borrower and each Subsidiary may declare and make dividend payments or other distributions payable solely in the common stock or other common Equity Interests of such Person; (c) the Borrower and each Subsidiary may purchase, redeem or otherwise acquire shares of its common stock or other common Equity Interests or warrants or options to acquire any such shares in connection with customary employee or management agreements, plans or arrangements; (d) the Borrower shall be permitted to make Restricted Payments in the form of cash dividends to the shareholders of the Borrower in an aggregate amount in any fiscal year not to exceed $10,000,000; provided that, any amount of cash dividends permitted to be paid by this clause (d) but not paid in respect of any fiscal year commencing on or after October 1, 2006, may be carried forward and paid in any subsequent fiscal year; (e) the Borrower and each Subsidiary shall be permitted to make other Restricted Payments in the form of cash dividends, distributions, purchases, redemptions or other acquisitions of or with respect to shares of its common stock or other common Equity Interests either (i) if at the time of making such Restricted Payment the Consolidated Leverage Ratio (calculated on a pro forma basis giving effect to such Restricted Payment and any Indebtedness incurred in connection therewith and any other relevant factor, all in accordance with Sections 1.04(c) and (d)) is not greater than 3.50 to 1.00, on an unlimited basis, and (ii) if at the time of making such Restricted Payment the Consolidated Leverage Ratio (calculated on a pro forma basis giving effect to such Restricted Payment and any Indebtedness incurred in connection therewith and any other relevant factor, all in accordance with Sections 1.04(c) and (d)) is greater than 3.50 to 1.00 but less than the maximum permitted level for the most recently ended fiscal quarter set forth in Section 8.12(a), in an amount in any fiscal year of the Borrower not greater than the Maximum Annual Payment Amount (less any portion of the Maximum Annual Payment Amount utilized to make Investments pursuant to Section 8.02(o) or to prepay or otherwise satisfy Indebtedness pursuant to Section 8.11(a)(iv))Subsidiaries.

Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that: (a) the Loan Parties may make Restricted Payments with the Net Proceeds of any Disposition (i) in an aggregate amount that does not exceed $3,000,000 during the term of the Loan (the “Net Proceeds RP Threshold”), or (ii) in each case an aggregate amount that exceeds the Net Proceeds RP Threshold (except Section 8.06(aan “Excess Net Proceeds Distribution”) if and only if (for purposes of this clause (ii)), (A) so long as no Default or Event of Default shall have occurred and be continuing (both before and after contemporaneously with the making of such Restricted Payments, the Loan Parties deliver to the Administrative Agent (1) a fully executed and effective amendment to a GP Service Contract that increases the obligations of Green Plains Trade Group LLC thereunder in a manner resulting in an increase in the value of such GP Service Contract, (2) a fully executed and effective Guarantee by a Subsidiary of ParentHoldings that is acceptable to the Administrative Agent (at the direction of the Required Lenders) or (3) additional Collateral acceptable to the Administrative Agent (at the direction of the Required Lenders), all of which applicable documentation delivered in connection with the foregoing clause (A) shall be acceptable to the Administrative Agent (at the direction of the Required Lenders), and (B) the amount of the (1) increase in value of a GP Service Contract, (2) Guarantee or (3) additional Collateral, as applicable, pursuant to the foregoing clause (A) shall be commensurate to the amount of the applicable Excess Net Proceeds Distribution, as determined by the Administrative Agent (at the direction of the Required Lenders) (any such Restricted Payment):, a “Permitted Net Proceeds Restricted Payment”); (ab) each Restricted Subsidiary may make Restricted Payments to Persons that own Equity Interests in such Subsidiary, ratably according to their respective holdings of the Borrower and to wholly-owned Restricted Subsidiaries (and, type of Equity Interest in the case respect of a which such Restricted Payment by a non-wholly-owned Restricted Subsidiary, to the Borrower and any Restricted Subsidiary and to each other owner of capital stock or other equity interests of such Restricted Subsidiary on a pro rata basis based on their relative ownership interests)is being made; (bc) the Borrower each Loan Party and each Subsidiary may declare and make dividend payments or other distributions payable solely in the common stock or other common Equity Interests of such Person; (c) the Borrower and each Subsidiary may purchase, redeem or otherwise acquire shares of its common stock or other common Equity Interests or warrants or options to acquire any such shares in connection with customary employee or management agreements, plans or arrangements; (d) the Borrower shall be permitted to make Restricted Payments in contemplated by the form of cash dividends to the shareholders of the Borrower in an aggregate amount in any fiscal year not to exceed $10,000,000; provided that, any amount of cash dividends permitted to be paid by this clause (d) but not paid in respect of any fiscal year commencing on or after October 1, 2006, Registration Statement may be carried forward and paid in any subsequent fiscal year;made substantially concurrently with the IPO; and (e) the Borrower and each Subsidiary shall be permitted to MLP may make other Restricted Payments in of up to 100% of (i) the form of cash dividends, distributions, purchases, redemptions or other acquisitions of or Distributable Cash Flow with respect to shares of its common stock or other common Equity Interests either (i) if at the time of making such Restricted Payment the Consolidated Leverage Ratio (calculated on a pro forma basis giving effect to such Restricted Payment and any Indebtedness incurred in connection therewith and any other relevant factor, all in accordance with Sections 1.04(c) and (d)) is not greater than 3.50 to 1.00, on an unlimited basis, fiscal quarter and (ii) if at cash then on hand of the time MLP, but not, for the avoidance of making such doubt, of any Net Proceeds of Dispositions or non-cash assets (it being understood and agreed that Restricted Payment the Consolidated Leverage Ratio (calculated on a pro forma basis giving effect to such Restricted Payment and any Indebtedness incurred in connection therewith and any other relevant factor, all Payments of Net Proceeds of Dispositions or non-cash assets shall only be permitted in accordance with with, and subject to, Sections 1.04(c7.06(a) and (dc), respectively); provided, however, that (i) no Default has occurred and is greater than 3.50 continuing or would result therefrom and (ii) the MLP and its Subsidiaries shall be in compliance (after giving effect on a Pro Forma Basis to 1.00 but less than the maximum permitted level for making of such Restricted Payment) with the most recently ended fiscal quarter financial covenants set forth in Section 8.12(a), in an amount in any fiscal year of the Borrower not greater than the Maximum Annual Payment Amount (less any portion of the Maximum Annual Payment Amount utilized to make Investments pursuant to Section 8.02(o) or to prepay or otherwise satisfy Indebtedness pursuant to Section 8.11(a)(iv))7.11.

Restricted Payments. Declare Obligors will not, and will not permit any of their Restricted Subsidiaries to, declare or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do soso except: (a) the Company and any of its Restricted Subsidiaries may declare and pay Restricted Payments to the Parent, except that, in each case (except Section 8.06(a)) so long as at the time of such Restricted Payment and immediately thereafter, (i) no Default or Event of Default shall have occurred and be continuing and (both before and after the making of such Restricted Payment):ii) no Loans are outstanding; (ab) each Restricted Subsidiary of the Company may make Restricted Payments to the Borrower and to wholly-owned Restricted Subsidiaries (and, in the case of a Restricted Payment by a non-wholly-owned Restricted Subsidiary, to the Borrower Company and any other Restricted Subsidiary and to each other owner of capital stock or other equity interests of that owns an Equity Interest in such Restricted Subsidiary on a pro rata basis based on ratably to their relative ownership interests)respective holdings of the type of Equity Interest in respect of which such Restricted Payment is being made; (bc) the Borrower Company and each Restricted Subsidiary may declare and make dividend payments or other distributions payable solely in the common stock or other common Equity Interests that are not Disqualified Capital Stock of such Person; (c) Person and the Borrower and each Subsidiary Company may purchase, redeem or otherwise acquire shares of its common stock or other common issue Equity Interests or warrants or options to acquire any such shares in connection with customary employee or management agreements, plans or arrangementsthat are not Disqualified Capital Stock upon the conversion of Equity Interests that are not Disqualified Capital Stock; (d) the Borrower shall be permitted to make additional Restricted Payments in the form of cash dividends to the shareholders of the Borrower in an aggregate amount in any fiscal year not to exceed $10,000,000; provided that(including, without limitation, any amount redemption of cash dividends permitted to be paid by this clause (dPerpetual Preferred Equity Interests) but not paid in respect of any fiscal year commencing so long as on or after October 1a pro forma basis, 2006, may be carried forward and paid in any subsequent fiscal yearthe Payment Conditions are satisfied; (e) the Borrower and each Subsidiary shall be permitted to Company may make other Restricted Payments in cash in an amount not exceeding the form Available Cash (so long as no Event of cash dividends, distributions, purchases, redemptions or other acquisitions of or with respect to shares of its common stock or other common Equity Interests either (i) if Default shall have occurred and be continuing at the time of making any such Restricted Payment the Consolidated Leverage Ratio (calculated on a pro forma basis action or would result therefrom and, with respect to such action, after giving effect thereto Excess Availability shall be no less than the $10,000,000); (f) the Company may declare and make cash distributions to such Restricted Payment holders of Perpetual Preferred Equity Interests (so long as no Event of Default shall have occurred and any Indebtedness incurred in connection therewith and any other relevant factor, all in accordance with Sections 1.04(c) and (d)) is not greater than 3.50 to 1.00, on an unlimited basis, and (ii) if be continuing at the time of making any such Restricted Payment the Consolidated Leverage Ratio (calculated on a pro forma basis action or would result therefrom and, with respect to such action, after giving effect to such Restricted Payment and any Indebtedness incurred in connection therewith and any other relevant factor, all in accordance with Sections 1.04(c) and (d)) is greater than 3.50 to 1.00 but thereto Excess Availability shall be no less than the maximum permitted level for $10,000,000); and (g) Restricted Payments made with the most recently ended fiscal quarter set forth in Section 8.12(a), in an amount in any fiscal year proceeds of the Borrower not greater than the Maximum Annual Payment Amount (less any portion of the Maximum Annual Payment Amount utilized to make Investments pursuant to Section 8.02(o) or to prepay or otherwise satisfy Indebtedness pursuant to Section 8.11(a)(iv))substantially concurrent Excluded Contributions.

Restricted Payments. Declare or make, directly or indirectlypermit any Subsidiary (other than any Subsidiary Outside Company) to declare or make, any Restricted Payment, or incur incur, or permit any Subsidiary (other than any Subsidiary Outside Company) to incur, any obligation (contingent or otherwise) to do so, except that, in each case (except Section 8.06(a)) so long as no Default or Event of Default shall have occurred and be continuing (both before and after the making of such Restricted Payment):: (a) each Subsidiary may declare and make Restricted Subsidiary Payments to Persons that own Equity Interests in such Subsidiary, ratably according to their respective holdings of the type of Equity Interest in respect of which such Restricted Payment is being made; (b) the Borrower may make distributions to the Trust to permit the Trust to satisfy expenses of the Trust that relate to the Borrower and its Subsidiaries; (c) to the extent the Borrower remains a pass-through entity, the Borrower may make distributions to the Trust to permit the Trust to pay federal and state income taxes then due and owing by the Trust that are attributable to the Trust’s ownership of Equity Interests in the Borrower and the operations of the Borrower and its Subsidiaries, so long as the amount of such distributions for the payment of taxes shall not be greater than the amount such taxes would have been had the Borrower not filed consolidated income tax returns with the Trust; (d) the Borrower and the Portfolio Companies may pay Management Fees to the Manager, and reimburse the Manager for its reasonable expenses incurred in connection with its management of the Borrower, pursuant to and in accordance with the terms of the Management Fee Agreement and the other Management Fee Documents, each as in effect on the date hereof (provided, that (i) any amounts paid by the Borrower under the Management Fee Agreement shall be net of amounts paid by the Portfolio Companies to the Manager or its Affiliates pursuant to the Management Fee Documents to which the Portfolio Companies are party and (ii) the making and receipt of payments under the Management Fee Documents shall be subject to the provisions of the Management Fee Subordination Agreement); (e) Subsidiaries may pay Integration Services Fees, in each case to the extent that (i) such fees are reasonable and customary based on the applicable acquisition or sale and (ii) such fees have been approved by the board of directors (or equivalent governing body) of the applicable Portfolio Company or Outside Company and by the compensation committee of the Borrower; (f) the Borrower may make Allocation Member Distributions; (g) the Borrower may make Restricted Payments if, after giving effect thereto and the incurrence of any Indebtedness in connection therewith, (i) no Event of Default exists or would result therefrom (and, assuming any such incurrence of Indebtedness in connection therewith had occurred on the first day of the then most recently ended twelve-month period of the Borrower for which a Compliance Certificate has been delivered hereunder, the Borrower would be in compliance with Section 7.11(a) on a Pro Forma Basis), and (ii) either (A) the sum of (x) all cash and Cash Equivalents of the Borrower on deposit in an account that is with the Administrative Agent or is subject to a Qualifying Control Agreement plus (y) Unused Borrowing Availability is not less than $25,000,000, or (B) the Consolidated Fixed Charge Coverage Ratio for the most recent twelve-month period of the Borrower for which a Compliance Certificate has been delivered hereunder, calculated on a Pro Forma Basis giving effect to any such Restricted Payment by the Borrower and all other such Restricted Payments by the Borrower during such period as charges in the denominator of the Consolidated Fixed Charge Coverage Ratio, is greater than 1.00 to 1.00; (h) each Portfolio Company may purchase or redeem shares of its preferred stock from any one or more shareholders: (i) with Intercompany Debt permitted hereunder if, after giving effect thereto and the incurrence of any Indebtedness in connection therewith, (A) no Event of Default exists or would result therefrom, (B) the Consolidated Total Leverage Ratio as of the last day of the most recently ended twelve-month period for which financial statements have been delivered hereunder (calculated on a Pro Forma Basis assuming any such incurrence of Indebtedness in connection therewith had occurred on the first day of such period) is less than 2.00 to 1.00, and (C) the sum of (x) all cash and Cash Equivalents of the Borrower on deposit in an account that is with the Administrative Agent or is subject to a Qualifying Control Agreement plus (y) Unused Borrowing Availability is not less than $25,000,000; (ii) [reserved]; and (iii) with proceeds (net of reasonable direct costs incurred in connection therewith, including legal, accounting and investment banking fees, professional fees and expenses, and taxes paid or reasonably estimated by the Borrower to be payable as a result thereof (after taking into account any available tax credits or deductions and any tax sharing arrangements)) of a sale or issuance by the Trust of common Equity Interests in the Trust, which proceeds are contributed by the Trust to the Borrower and further contributed by the Borrower to wholly-owned Restricted Subsidiaries such Portfolio Company and actually used by such Portfolio Company to purchase or redeem shares of its preferred stock substantially concurrently with such sale or issuance and contributions; (andi) each Portfolio Company may purchase or redeem shares of its common and/or preferred Equity Interests from any one or more minority shareholders in unlimited amounts, in the case of a Restricted Payment provided that no such purchase or redemption shall be made by a nonPortfolio Company unless (A) such Portfolio Company is in compliance with the financial covenants under its Intercompany Debt Documents on a pro forma basis after giving effect to such proposed purchase or redemption, (B) no Event of Default exists or would result therefrom and (C) after giving effect to such to such proposed purchase or redemption and the incurrence of any Indebtedness in connection therewith, the Borrower shall be in compliance on a Pro Forma Basis with the covenants set forth in Section 7.11 recomputed for the twelve-wholly-owned Restricted Subsidiarymonth period ending on the last day of the most recently ended month for which a Compliance Certificate has been delivered to the Administrative Agent in accordance with the provisions of this Agreement; (j) to the extent due and payable and permitted under the applicable subordination provisions thereof, to the Portfolio Companies may make regularly scheduled payments in respect of Permitted Earn Out Obligations, provided that (i) the amount of revolver borrowing availability under the Intercompany Debt Documents between the Borrower and any Restricted Subsidiary and the applicable Portfolio Company after giving effect to each other owner such payment shall be not less than the product of capital stock or other equity interests the Portfolio Company EBITDA of such Restricted Subsidiary Portfolio Company for the twelve month period ending on the last day of the month for which a Compliance Certificate has most recently been delivered to the Administrative Agent in accordance with this Agreement times 0.25, (ii) such Portfolio Company is in compliance with the financial covenants under its Intercompany Debt Documents on a pro rata forma basis based after giving effect to such payment, (iii) no Event of Default exists or would result therefrom and (iv) after giving effect to such to such payment, the Borrower shall be in compliance on their relative ownership interests);a Pro Forma Basis with the covenants set forth in Section 7.11 recomputed for the twelve-month period ending on the last day of the most recently ended month for which a Compliance Certificate has been delivered to the Administrative Agent in accordance with the provisions of this Agreement; and (bk) the Borrower and each Subsidiary may declare and make dividend payments or other distributions payable solely in the common stock or other common Equity Interests of such Person; (c) the Borrower and each Subsidiary may purchase, redeem or otherwise acquire shares of its common stock or other common Equity Interests or warrants or options to acquire any such shares in connection with customary employee or management agreements, plans or arrangements; (d) the Borrower shall be permitted to make Restricted Payments in the form of cash dividends to the shareholders of the Borrower in an aggregate amount in any fiscal year not to exceed $10,000,000; provided that, any amount of cash dividends permitted to be paid by this clause (d) but not paid in respect of any fiscal year commencing on or after October 1, 2006, may be carried forward and paid in any subsequent fiscal year; (e) the Borrower and each Subsidiary shall be permitted to make other Restricted Payments in the form of cash dividends, distributions, purchases, redemptions or other acquisitions of or with respect to shares of its common stock or other common Equity Interests either (i) if at the time of making such Restricted Payment the Consolidated Leverage Ratio (calculated on a pro forma basis giving effect to such Restricted Payment and any Indebtedness incurred in connection therewith and any other relevant factor, all in accordance with Sections 1.04(c) and (d)) is not greater than 3.50 to 1.00, on an unlimited basis, and (ii) if at the time of making such Restricted Payment the Consolidated Leverage Ratio (calculated on a pro forma basis giving effect to such Restricted Payment and any Indebtedness incurred in connection therewith and any other relevant factor, all in accordance with Sections 1.04(c) and (d)) is greater than 3.50 to 1.00 but less than the maximum permitted level for the most recently ended fiscal quarter set forth in Section 8.12(a), in an amount in any fiscal year of the Borrower not greater than the Maximum Annual Payment Amount (less any portion of the Maximum Annual Payment Amount utilized to make Investments pursuant to Section 8.02(o) or to prepay or otherwise satisfy Indebtedness pursuant to Section 8.11(a)(iv)).

Restricted Payments. Declare The Borrower shall not, nor shall Parent or makeany Subsidiary to, directly declare or indirectly, make any Restricted Payment; provided that: ●(i) Parent may declare or make Restricted Payments in cash distributions to its equity holders in an aggregate amount not to exceed the greater of (x) ninety-five percent (95%) of Parent’s Adjusted FFO for each Fiscal Quarter ending thereafter(excluding any regular distributions to holders of preferred partnership units in Borrower and distributions necessary to pay holders of preferred stock of Parent) for each Rolling Period (commencing with the Rolling Period ending on December 31, 2024), or incur (y) the amount necessary for Parent to be able to make distributionsRestricted Payments required to maintain its status as a REIT and to avoid the imposition of any obligation (contingent federal or otherwise) state income tax, and to do so, except thatavoid the imposition of the excise tax described by Section 4981 of the Code, in each case (except Section 8.06(a)) so long as no Default or on Parent; provided further that, in either case, during the continuance of an Event of Default shall have occurred and be continuing Default, (both before and after the making of such A) Restricted Payment): Payments made pursuant to this clause (a) shall not exceed the amounts described in clause (y), and (B) no other cash distributionsRestricted Payments will be permitted; ●the Borrower may make Restricted Payments ratably to the holders of its Equity Interests to permit Parent to make the Restricted Payments permitted under clause (a) above; ●each Restricted Subsidiary may make Restricted Payments ratably to the Borrower and to wholly-owned Restricted Subsidiaries (andholders of its Equity Interests; ●Parent, in the case of a Restricted Payment by a non-wholly-owned Restricted Subsidiary, to the Borrower and or any Restricted Subsidiary and to each other owner of capital stock or other equity interests of such Restricted Subsidiary on a pro rata basis based on their relative ownership interests); (b) the Borrower and each Subsidiary Guarantor may declare and make dividend payments or other distributions payable solely in the common stock equity interests or other common Equity Interests equity interests of such Person; entity including (ci) “cashless exercises” of options granted under any share option plan adopted by such entity, (ii) distributions of rights or equity securities under any rights plan adopted by such entity and (iii) distributions (or effect stock splits or reverse stock splits) with respect to its equity interests payable solely in additional shares of its equity interests; ●Parent, the Borrower and each Guarantor may make cash payments in lieu of the issuance of fractional shares representing insignificant interests in connection with the exercise of warrants, options or other securities convertible into or exchangeable for equity interests of Parent, the Borrower or any Subsidiary; ●so long as no Change of Control results therefrom, Parent, the Borrower and each Subsidiary may purchase, redeem or otherwise acquire shares of its common stock or other common Equity Interests or warrants or options to acquire any such shares in connection with customary employee or management agreements, plans or arrangements; (d) the Borrower shall be permitted to make Restricted Payments in connection with the form implementation of cash dividends or pursuant to the shareholders any retirement, health, stock option and other benefit plans, bonus plans, performance based incentive plans, and other similar forms of the Borrower in an aggregate amount in any fiscal year not to exceed $10,000,000compensation; provided that●so long as no Change of Control results therefrom, any amount of cash dividends permitted to be paid by this clause (d) but not paid in respect of any fiscal year commencing on or after October 1, 2006, may be carried forward and paid in any subsequent fiscal year; (e) the Borrower and each Subsidiary shall be permitted that is a Guarantor may make dividends or distributions to allow Parent to make other Restricted Payments payments in connection with share purchase programs, to the form extent not otherwise prohibited by the terms of cash dividends, distributions, purchases, redemptions this Agreement; and ●Parent may exercise any redemption or other acquisitions of or conversion rights with respect to shares of its common stock or other common Equity Interests either (i) if at the time of making such Restricted Payment the Consolidated Leverage Ratio (calculated on a pro forma basis giving effect to such Restricted Payment and any Indebtedness incurred in connection therewith and any other relevant factor, all in accordance with Sections 1.04(c) and (d)) is not greater than 3.50 to 1.00, on an unlimited basis, and (ii) if at the time of making such Restricted Payment the Consolidated Leverage Ratio (calculated on a pro forma basis giving effect to such Restricted Payment and any Indebtedness incurred in connection therewith and any other relevant factor, all in accordance with Sections 1.04(c) and (d)) is greater than 3.50 to 1.00 but less than the maximum permitted level for the most recently ended fiscal quarter set forth in Section 8.12(a), in an amount in any fiscal year terms of the Borrower not greater governing documents setting out any such rights and, to the extent paid in cash from sources other than the Maximum Annual Payment Amount (less any portion a concurrent offering of Equity Interests of the Maximum Annual Payment Amount utilized to make Investments pursuant Parent, subject to Section 8.02(o) or to prepay or otherwise satisfy Indebtedness pursuant to Section 8.11(a)(iv)8.25(a).

Restricted Payments. Declare The Borrower will not, and will not permit any of its Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, except (a) the Borrower may declare and pay dividends with respect to its Equity Interests, make any other Restricted Payments, payable solely in additional shares of its common stock, (b) Subsidiaries may declare and pay dividends ratably with respect to their Equity Interests, (c) the Borrower may make Restricted Payments pursuant to and in accordance with stock option plans or incur other benefit plans for management or employees of the Borrower and its Subsidiaries, (d) so long as, at the time any obligation such Restricted Payment is made and immediately after giving effect (contingent including pro forma effect) thereto (and to the incurrence of any Indebtedness in connection therewith) (i) no Default or otherwiseEvent of Default shall have occurred and is continuing, (ii) the Total Net Leverage Ratio is not greater than 2.50 to do so1.00 and (iii) the Borrower is in compliance with the Senior Secured Leverage Ratio and the Fixed Charge Coverage Ratio, except thatthe Borrower and its Subsidiaries may make other Restricted Payments, in each case (except Section 8.06(a)e) so long as no Default or Event of Default shall have has occurred and be is continuing or would arise after giving effect (both before and after the making of such Restricted Payment): (aincluding pro forma effect) each Restricted Subsidiary may make Restricted Payments to the Borrower and to wholly-owned Restricted Subsidiaries (and, in the case of a Restricted Payment by a non-wholly-owned Restricted Subsidiary, to thereto the Borrower and any Restricted Subsidiary and Subsidiaries may repurchase Equity Interests from any current or former officer, director, employee or consultant to each other owner of capital stock comply with Tax withholding obligations relating to Taxes payable by such Person upon the grant or other equity interests award of such Restricted Subsidiary on a Equity Interests (or upon vesting thereof), (f) so long as no Default or Event of Default has occurred and is continuing or would arise after giving effect (including pro rata basis based on their relative ownership interests); (bforma effect) thereto, the Borrower and each Subsidiary any Subsidiaries may declare and make dividend payments or other distributions payable solely in the common stock or other common purchase Equity Interests of such Person; (c) the Borrower and each Subsidiary may purchasefrom present or former officers, redeem directors or otherwise acquire shares of its common stock or other common Equity Interests or warrants or options to acquire any such shares in connection with customary employee or management agreements, plans or arrangements; (d) the Borrower shall be permitted to make Restricted Payments in the form of cash dividends to the shareholders employees of the Borrower or any Subsidiary upon the death, disability, retirement or termination of employment or service of such officer, director or employee, in an aggregate amount in any fiscal year not to exceed exceeding $10,000,000; provided that, any amount of cash dividends permitted to be paid by this clause (d) but not paid in respect of any fiscal year commencing on or after October 1, 2006, may be carried forward and paid in any subsequent fiscal year; (e) the Borrower and each Subsidiary shall be permitted to make other Restricted Payments in the form of cash dividends, distributions, purchases, redemptions or other acquisitions of or with respect to shares of its common stock or other common Equity Interests either (i) if at the time of making such Restricted Payment the Consolidated Leverage Ratio (calculated on a pro forma basis giving effect to such Restricted Payment and any Indebtedness incurred in connection therewith and any other relevant factor, all in accordance with Sections 1.04(c) and (d)) is not greater than 3.50 to 1.00, on an unlimited basis, and (ii) if at the time of making such Restricted Payment the Consolidated Leverage Ratio (calculated on a pro forma basis giving effect to such Restricted Payment and any Indebtedness incurred in connection therewith and any other relevant factor, all in accordance with Sections 1.04(c) and (d)) is greater than 3.50 to 1.00 but less than the maximum permitted level for the most recently ended fiscal quarter set forth in Section 8.12(a), in an amount 5,000,000 in any fiscal year of the Borrower and (g) so long as no Default or Event of Default has occurred and is continuing or would arise after giving effect (including pro forma effect) thereto, the Borrower and any Subsidiaries may make other Restricted Payments in an aggregate amount not greater than the Maximum Annual Payment Amount (less exceeding $15,000,000 in any portion fiscal year of the Maximum Annual Payment Amount utilized to make Investments pursuant to Section 8.02(o) or to prepay or otherwise satisfy Indebtedness pursuant to Section 8.11(a)(iv))Borrower.

Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that, in each case (except Section 8.06(a)) so long as no Default or Event of Default shall have occurred and be continuing (both before and after at the making time of such Restricted Payment):any action described below or would result therefrom: (a) each Restricted Subsidiary may make Restricted Payments to the Borrower, any Subsidiaries of the Borrower and to wholly-owned Restricted Subsidiaries (and, in provided that if the case of a Subsidiary making such Restricted Payment by is a non-wholly-owned Loan Party, then the Subsidiary to which such Restricted Payment is made shall also be a Loan Party) and any other Person that owns a direct Equity Interest in such Subsidiary, ratably according to their respective holdings of the Borrower and any Restricted Subsidiary and to each other owner type of capital stock or other equity interests Equity Interest in respect of which such Restricted Subsidiary on a pro rata basis based on their relative ownership interests)Payment is being made; (b) the Borrower and each Subsidiary may declare and make dividend payments or other distributions payable solely in the common stock or other common Equity Interests of such Person; (c) the Borrower and each Subsidiary may purchase, redeem or otherwise acquire shares of its common stock or other common Equity Interests or warrants or options to acquire any such shares in connection with customary employee or management agreements, plans or arrangementsthe proceeds received from the substantially concurrent issue of new common Equity Interests; (d) the Borrower shall be permitted to and each Subsidiary may make Restricted Payments in the form of cash dividends made to the shareholders of any Person (other than an Affiliate of the Borrower in Borrower) acquired by merger pursuant to an aggregate amount in any fiscal year not to exceed $10,000,000; provided that, any amount of cash dividends acquisition permitted to be paid by under this clause (d) but not paid in respect of any fiscal year commencing on or after October 1, 2006, may be carried forward and paid in any subsequent fiscal yearAgreement; (e) the Borrower and each Subsidiary may make Restricted Payments not otherwise permitted under this Section 7.06 (other than Restricted Payments consisting of divisions, lines of business or the stock of Subsidiaries); provided that on a Pro Forma Basis the Borrower’s Consolidated Net Leverage Ratio shall be permitted to make other Restricted Payments in the form of cash dividends, distributions, purchases, redemptions or other acquisitions of or with respect to shares of its common stock or other common Equity Interests either (i) if at the time of making such Restricted Payment the Consolidated Leverage Ratio (calculated on a pro forma basis giving effect to such Restricted Payment and any Indebtedness incurred in connection therewith and any other relevant factor, all in accordance with Sections 1.04(c) and (d)) is not greater than 3.50 to 1.00, on an unlimited basis, and (ii) if at the time of making such Restricted Payment the Consolidated Leverage Ratio (calculated on a pro forma basis giving effect to such Restricted Payment and any Indebtedness incurred in connection therewith and any other relevant factor, all in accordance with Sections 1.04(c) and (d)) is greater than 3.50 to 1.00 but less than the maximum permitted level 3.50:1.00 for the most recently ended fiscal quarter set forth Measurement Period for which financial statements have been delivered pursuant to Section 6.01; (f) the Borrower and each Subsidiary may make other Restricted Payments not otherwise permitted under this Section 7.06 not exceeding $75,000,000 in Section 8.12(a), in an amount in any the aggregate per fiscal year of the Borrower; (g) the Borrower and each Subsidiary may make other Restricted Payments not greater than otherwise permitted under this Section 7.06; provided that, at the Maximum Annual time each such Restricted Payment is made in reliance on this clause (g), the aggregate amount of such Restricted Payment does not exceed the Available Amount at such time; (less any h) the Borrower may make cash payments in lieu of the issuance of fractional shares in connection with the exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests in the Borrower; (i) the Borrower may make Restricted Payments pursuant to and in accordance with stock option plans or other benefit plans or agreements for directors, officers or employees of the Borrower and its Subsidiaries that are approved in good faith by the board of directors of the Borrower; (j) the Borrower may repurchase Equity Interests upon the exercise of stock options if such Equity Interests represent a portion of the Maximum Annual Payment Amount utilized exercise price of such options; (k) subject to Section 7.14, the Borrower or any of its Subsidiaries may make Investments Restricted Payments contemplated by the Separation; and (l) the Borrower and any of its Subsidiaries may make payments of amounts due and payable pursuant to Section 8.02(o) or to prepay or otherwise satisfy Indebtedness pursuant to Section 8.11(a)(iv))the Tax Matters Agreement between Ashland Global and Valvoline entered into in connection with the Separation.

Restricted Payments. Declare None of the Borrowers or Subsidiary Guarantors shall declare or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that, in each case (except Section 8.06(a)) so long as no Default or Event of Default shall have occurred and be continuing (both before and after the making of such Restricted Payment):except: (a) each Restricted any Subsidiary Guarantor may make Restricted Payments to the a Borrower and to wholly-owned Restricted Subsidiaries or another Subsidiary Guarantor (and, in the case of a Restricted Payment by a non-wholly-wholly owned Restricted SubsidiarySubsidiary Guarantor, to the any Borrower and any Restricted other Subsidiary Guarantor and to each other owner of capital stock or other equity interests Equity Interests of such Restricted Subsidiary on a pro rata basis Guarantor based on their relative ownership interestsinterests of the relevant class of Equity Interests); (b) the Borrower Borrowers and each Subsidiary Guarantors may declare and make dividend payments or other distributions Restricted Payments payable solely in the common stock or other common Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 7.03) of such Person; (c) Restricted Payments in an amount not to exceed the Borrower and each Subsidiary may purchase, redeem or otherwise acquire shares amount of its common stock or other common Equity Interests or warrants or options Cash Flow Available for Distribution determined on the date of such Restricted Payment to acquire the extent Not Otherwise Applied; provided the Restricted Payment Conditions are satisfied at the time such Restricted Payments are made; provided further that there shall not be any such shares in connection with customary employee or management agreements, plans or arrangementsRestricted Payment of any Target Shares made pursuant to this Section 7.06(c); (d) Restricted Payments that are made in (i) an amount equal to the amount of Excluded Contributions previously received and the Borrower shall be permitted Representative elects to make Restricted Payments in the form of cash dividends to the shareholders of the Borrower in an aggregate amount in any fiscal year not to exceed $10,000,000; provided that, any amount of cash dividends permitted to be paid by apply under this clause (d) but not paid or (ii) without duplication with the preceding clause (i), an amount equal to the proceeds distributed by the Acquired Business to any Borrower or Subsidiary Guarantor from a Disposition in respect of property or assets acquired by the Acquired Business after the Closing Date by means of an Excluded Contribution, in each case, to the extent Not Otherwise Applied; provided that there shall not be any fiscal year commencing on or after October 1, 2006, may be carried forward and paid in Restricted Payment of any subsequent fiscal yearTarget Shares made pursuant to this Section 7.06(d); (e) to the extent constituting Restricted Payments, the Borrowers and the Subsidiary Guarantors may enter into and consummate transactions expressly permitted by any provision of Sections 7.02 (other than Sections 7.02(c) and (j)), 7.04 or 7.07 (other than Sections 7.07(d) or 7.07(i)); (f) repurchases of Equity Interests in any Borrower and each (or any Parent Company thereof) or Subsidiary shall be permitted to make other Restricted Payments in the form of cash dividendsGuarantor, distributions, purchases, redemptions or other acquisitions of or with respect to shares which no cash or other consideration is paid by such Borrower or Subsidiary Guarantor, deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants; (g) the Borrowers and Subsidiary Guarantors may pay (or make Restricted Payments to allow any other Parent Company thereof to pay) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of any Borrower (or of any Parent Company thereof) from any future, present or former employee, officer, director, manager or consultant of such Borrower (or any Parent Company of such Borrower) or any of its common Subsidiaries upon the death, disability, retirement or termination of employment of any such Person or pursuant to any employee or director equity plan, employee, manager or director stock option plan or any other common Equity Interests either employee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee, manager, director, officer or consultant of a Borrower (or any Parent Company thereof) or any of its Subsidiaries; provided that the aggregate amount of Restricted Payments made pursuant to this clause (g) shall not exceed $15,000,000 in any calendar year (with unused amounts in any calendar year being carried over to succeeding calendar years); provided, further, that such amount in any calendar year may be increased by an amount not to exceed: (i) if at to the time extent contributed to any Borrower, the net cash proceeds from the sale of making Equity Interests (other than Disqualified Equity Interests or Designated Equity Contributions) of any of such Borrower’s Parent Company, in each case to members of management, managers, directors or consultants of such Borrower, any of its Subsidiaries or any of its Parent Company that occurs after the Closing Date, to the extent net cash proceeds from the sale of such Equity Interests have been Not Otherwise Applied; plus (ii) the net cash proceeds of key man life insurance policies received by any Borrower or Subsidiary Guarantor; less (iii) the amount of any Restricted Payment Payments previously made with the Consolidated Leverage Ratio cash proceeds described in clause (calculated on a pro forma basis giving effect to such Restricted Payment and any Indebtedness incurred in connection therewith and any other relevant factor, all in accordance with Sections 1.04(ci) and (d)) is not greater than 3.50 to 1.00, on an unlimited basis, and (ii) if at the time of making such this Section 7.06(g); (h) Restricted Payment the Consolidated Leverage Ratio (calculated on a pro forma basis giving effect to such Restricted Payment and any Indebtedness incurred in connection therewith and any other relevant factor, all in accordance with Sections 1.04(c) and (d)) is greater than 3.50 to 1.00 but less than the maximum permitted level for the most recently ended fiscal quarter set forth in Section 8.12(a), Payments in an aggregate amount in any fiscal year not to exceed, when combined with prepayment of the Borrower not greater than the Maximum Annual Payment Amount (less any portion of the Maximum Annual Payment Amount utilized to make Investments pursuant to Section 8.02(o) or to prepay or otherwise satisfy Indebtedness pursuant to Section 8.11(a)(iv7.10(a)(iii), $10,000,000; (i) any Borrower may make Restricted Payments to any Parent Company of such Borrower: (i) to pay its operating costs and expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business and attributable to the ownership or operations of the Borrowers, the Subsidiary Guarantors and the Acquired Business and Transaction Expenses and any reasonable and customary indemnification claims made by directors, managers or officers of such parent attributable to the ownership or operations of the Borrowers, the Subsidiary Guarantors and the Acquired Business; (ii) the proceeds of which shall be used by such parent to pay franchise, excise and similar Taxes, and other fees and expenses, required to maintain its (or any of its Parent Companies’) corporate or other legal existence; (iii) with respect to any taxable period or portion thereof during which a Borrower is a passthrough entity (including a partnership or disregarded entity) for U.S. federal income tax purposes, payments or distributions by any Borrower to any member or partner of such Borrower on or prior to each estimated tax payment date as well as each other applicable due date, in an aggregate amount such that each member or partner (or its direct or indirect members or partners, if applicable) of a Borrower receives, in the aggregate for such period, payments or distributions not to exceed such member or partner’s U.S. federal, state, and/or local income taxes (as applicable) attributable to its direct or indirect ownership of such Borrower and its Subsidiaries with respect to such taxable period (assuming that such member or partner is subject to tax at the highest combined marginal U.S. federal, state, and local income tax rates (including any tax rate imposed on “net investment income” by Section 1411 of the Code) applicable to an individual or, if higher, a corporation, resident in New York City (for the avoidance of doubt, regardless of the actual rate applicable to such member or partner), determined by (A) taking into account (1) the alternative minimum tax, (2) any U.S. federal, state, and/or local (as applicable) loss carryforwards of such member or partner available from losses of such member or partner attributable to its direct or indirect ownership of such Borrower and its Subsidiaries for prior taxable periods to the extent such loss is of a character that would allow such loss to be available to reduce taxes in the current taxable period (taking into account any limitations on the utilization of such loss to reduce such taxes and to the extent such loss had not already been utilized), (3) the character (e.g., long-term or short-term capital gain or ordinary or exempt) of the applicable income, and (4) any adjustment to such member’s or partner’s taxable income attributable to its direct or indirect ownership of such Borrower and its Subsidiaries as a result of any tax examination, audit, or adjustment with respect to any period or portion thereof, and (B) not taking into account (1) the application of Section 199A of the Code, and (2) the deductibility of state and local income taxes for U.S. federal income tax purposes) (any such payments or distributions permitted under clause (ii), above, or this clause (iii), a “Permitted Tax Distribution”); (iv) to finance any Investment that would be permitted to be made pursuant to Section 7.02 if such parent were subject to such section; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrowers or the Subsidiary Guarantors or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrowers or the Subsidiary Guarantors in order to consummate such Investment (it being understood that such contribution or merger shall not build any other basket hereunder); (v) the proceeds of which shall be used to pay customary salary, bonus and other benefits payable to officers and employees of the Borrowers or any Parent Company of the Borrowers to the extent such salaries, bonuses and other benefits are attributable to the ownership or operation of the Borrowers, the Subsidiary Guarantors and the Acquired Business; and (vi) the proceeds of which shall be used by any Parent Company of any Borrower to pay fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering by such parent (or any Parent Company thereof) that is directly attributable to the operations of the Borrowers, the Subsidiary Guarantors and the Acquired Business; and (j) the Borrowers or the Subsidiary Guarantors may (a) pay cash in lieu of fractional Equity Interests in connection with any dividend, split or combination thereof or any Investment permitted under Section 7.02 and (b) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its terms.

Restricted Payments. Declare The Borrower will not, and will not permit any of its Restricted Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that, in each case (except Section 8.06(a)) so long as no Default or Event of Default shall have occurred and be continuing (both before and after the making of such Restricted Payment):except (a) each the Borrower or any Restricted Subsidiary may make Restricted Payments declare and pay dividends or other distributions with respect to the Borrower and its Equity Interests payable solely in shares of its Equity Interests (other than Disqualified Equity Interests) or options to wholly-owned Restricted Subsidiaries purchase Equity Interests (andother than Disqualified Equity Interests), but, in the case of a Restricted Payment by a non-wholly-owned Restricted Subsidiary, to the Borrower such dividends and any Restricted Subsidiary and to each other owner of capital stock or other equity interests of such Restricted Subsidiary distributions shall be made on a pro rata basis based on their relative ownership interests)to all equityholders; (b) the Borrower and each Subsidiary Restricted Subsidiaries may declare and make dividend payments or other distributions payable solely in the common stock or other common Restricted Payments (i) ratably with respect to their Equity Interests of such Personor (ii) to the Borrower or any other Restricted Subsidiary; (c) the Borrower may make Restricted Payments pursuant to and each Subsidiary may purchase, redeem or otherwise acquire shares of its common in accordance with stock option plans or other common Equity Interests equity benefit plans for present or warrants former officers, directors, consultants or options employees of the Borrower and its Restricted Subsidiaries (i) in existence on the Effective Date and listed on Schedule 6.04 and (ii) other such plans adopted following the Effective Date in an aggregate amount pursuant to acquire this subclause (ii) not to exceed $3,000,000 in any fiscal year (with unused amounts of such shares base amount available for use in connection with customary employee or management agreements, plans or arrangementsthe next succeeding fiscal year subject to a maximum of $6,000,000 in any calendar year); (d) the Borrower shall be permitted to make Restricted Payments in the form of cash dividends to the shareholders of the Borrower in an aggregate amount in any fiscal year not to exceed $10,000,000; provided that, any amount of cash dividends permitted to be paid by this clause (d) but not paid in respect of any fiscal year commencing on or after October 1, 2006, Existing Preferred Stock may be carried forward and paid in any subsequent fiscal yearredeemed; (e) fees and expenses (including franchise or similar taxes) required to maintain the corporate existence, customary salary, bonus and other benefits payable to, and indemnities provided on behalf of, officers and employees of HCC, if applicable, and general corporate overhead expenses of HCC, in each case to the extent such fees and expenses are attributable to the ownership or operation of the Borrower, if applicable, and its Restricted Subsidiaries; provided that for so long as HCC owns no assets other than Equity Interests in the Borrower, such fees and expenses shall be deemed for purposes of this clause (e) to be so attributable to such ownership or operation; (f) repurchases of Equity Interests in the Borrower or any Restricted Subsidiary deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants; (g) the Borrower and each Subsidiary shall be permitted to its Restricted Subsidiaries may make other Restricted Payments in an aggregate amount not to exceed the form of cash dividends, distributions, purchases, redemptions or other acquisitions of or with respect to shares of its common stock or other common Equity Interests either Available Amount; provided that no Restricted Payments shall be permitted under the foregoing clause (g) unless (i) if at the time no Default or Event of making such Restricted Payment Default has occurred and is continuing or would arise after giving effect thereto and (ii) on a Pro Forma Basis, the Consolidated Leverage Ratio would not exceed 4.5 to 1.0 and the Borrower would otherwise be in compliance with Section 6.09; (calculated on h) for so long as the Borrower is a pro forma basis giving effect member of a consolidated, combined or similar income Tax group (a “Tax Group”) of which a direct or indirect parent company of the Borrower is the common parent, the Borrower may make Restricted Payments in amounts required for such parent company to such Restricted Payment and any Indebtedness incurred in connection therewith and any other relevant factorpay foreign, all U.S. federal, state, and/or local consolidated, combined or similar income Taxes, in accordance with Sections 1.04(c) and (d)) is not greater than 3.50 to 1.00the Federal Income Tax Sharing Agreement dated March 11, on an unlimited basis2003, and (ii) if at the time of making such Restricted Payment State Tax Sharing Agreement dated May 9, 2000, each as in effect on the Consolidated Leverage Ratio (calculated on Effective Date or as thereafter amended in a pro forma basis giving effect manner not adverse to such Restricted Payment and any Indebtedness incurred in connection therewith and any other relevant factor, all in accordance with Sections 1.04(c) and (d)) is greater than 3.50 to 1.00 but less than the maximum permitted level for the most recently ended fiscal quarter set forth in Section 8.12(a), in an amount Lenders in any fiscal year of material respect; and (i) the Borrower may pay annual dividends not greater than in excess of 6% of Net Cash Proceeds of any offering of Qualified Equity Interests following the Maximum Annual Payment Amount (less any portion of the Maximum Annual Payment Amount utilized to make Investments pursuant to Section 8.02(o) or to prepay or otherwise satisfy Indebtedness pursuant to Section 8.11(a)(iv))Effective Date.

Restricted Payments. Declare The Borrower will not, nor will it permit any of its Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that, in each case (except Section 8.06(a)) so long as no Default or Event of Default shall have occurred and be continuing (both before and after the making of such Restricted Payment):: (a) each Restricted any Non-Guarantor Subsidiary may make Restricted Payments to the Borrower and to wholly-owned Restricted Subsidiaries (and, in the case or any of a Restricted Payment by a non-wholly-owned Restricted Subsidiary, to the Borrower and any Restricted Subsidiary and to each other owner of capital stock or other equity interests of such Restricted Subsidiary on a pro rata basis based on their relative ownership interests)its Subsidiaries; (b) any Subsidiary of the Borrower and each Subsidiary may declare and make dividend payments or other distributions payable solely in the common stock or other common Equity Interests of such Personpay dividends to any Obligor; (c) the Borrower and each Subsidiary any of its Subsidiaries may purchase, redeem or otherwise acquire declare and pay dividends with respect to its capital stock at any time solely in additional shares of its common stock or other common Equity Interests or warrants or options to acquire any such shares in connection with customary employee or management agreements, plans or arrangementsstock; (d) the Borrower shall be permitted to and any of its Subsidiaries may make Restricted Payments pursuant to and in accordance with (i) stock option plans or other benefit or compensation plans, (ii) agreements existing on the form of cash dividends to Effective Date and (iii) agreements entered into after the shareholders Effective Date, provided that payments under such future agreements do not exceed $5,000,000 in any fiscal year, for directors, management or employees of the Borrower and any of its Subsidiaries in an aggregate amount in any fiscal year not to exceed $10,000,000; provided that, any amount the ordinary course of cash dividends permitted to be paid by this clause (d) but not paid in respect of any fiscal year commencing on or after October 1, 2006, may be carried forward and paid in any subsequent fiscal yearbusiness; (e) the Borrower and each any of its Subsidiaries may declare and pay mandatory dividends on preferred stock; (f) the Borrower and its Subsidiaries may make cash payments in lieu of issuing fractional shares in connection with the exercise of Equity Rights convertible into or exchangeable for Equity Interests of the Borrower or its Subsidiaries; (g) so long as no Default shall have occurred and be continuing, any Subsidiary that is not wholly-owned may make distributions payable to the other equity holders of such Subsidiary on a pro rata basis; provided that distributions payable by any Subsidiary that is not wholly-owned to other equity holders in order to comply with the terms of the WiMax Agreement do not have to be made on a pro rata basis; (h) Restricted Payments resulting from the cashless exercise of stock options; and (i) so long as no Default shall have occurred and be permitted to continuing or would result therefrom, the Borrower and any of its Subsidiaries may make other Restricted Payments in an aggregate amount not to exceed $100,000,000; provided that, at any time that the form of cash dividendsTotal Indebtedness Ratio is less than 2.50:1, distributions, purchases, redemptions or other acquisitions of or with respect to shares of the Borrower and its common stock or other common Equity Interests either (i) if at Subsidiaries may make any Restricted Payments so long as the time of making such Restricted Payment the Consolidated Leverage Total Indebtedness Ratio (calculated on a pro forma basis after giving effect to such Restricted Payment and any Indebtedness incurred in connection therewith and any other relevant factor, all in accordance with Sections 1.04(c) and (d)) is not greater than 3.50 to 1.00, on an unlimited basis, and (ii) if at the time of making such Restricted Payment the Consolidated Leverage Ratio (calculated on a pro forma basis giving effect to such Restricted Payment and any Indebtedness incurred in connection therewith and any other relevant factor, all in accordance with Sections 1.04(c) and (d)) is greater than 3.50 to 1.00 but Payments remains less than the maximum permitted level 2.50:1; provided further, that, for the most recently ended fiscal quarter set forth in Section 8.12(aavoidance of doubt, any extension, renewal or refinancing of debt securities that are convertible into or exchangeable for shares of capital stock (whether common or preferred), partnership interests, membership interests in an amount a limited liability company (whether common or preferred), beneficial interests in any fiscal year a trust or other equity ownership interests, in each case, of the Borrower or any Subsidiary, shall be permitted under this Section 6.06 so long as such extension, renewal or refinancing is not greater than the Maximum Annual Payment Amount (less any portion of the Maximum Annual Payment Amount utilized to make Investments pursuant to Section 8.02(o) or to prepay or otherwise satisfy Indebtedness pursuant to Section 8.11(a)(iv))prohibited by this Agreement.

Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that, in each case (except Section 8.06(a)) so long as no Default or Event of Default shall have occurred and be continuing (both before and after the making of such Restricted Payment):: (a) each Restricted Subsidiary may make Restricted Payments to the Borrower Borrower, the Parent Guarantor and to wholly-owned Restricted Subsidiaries any other Person (and, in the case of a Restricted Payment by a non-wholly-owned including any other Restricted Subsidiary, to the Borrower and any Restricted Subsidiary and to each other owner of capital stock or other equity interests of ) that owns an Equity Interest in such Restricted Subsidiary on a pro rata basis based on ratably according to their relative ownership interests)respective holdings of the type of Equity Interest in respect of which such Restricted Payment is being made; (b) the Borrower Parent Guarantor and each Restricted Subsidiary may declare and make dividend payments or other distributions payable solely in the common stock or other common Qualified Equity Interests of such Person, in the case of a Restricted Subsidiary, ratably to each Person that owns an Equity Interest in such Restricted Subsidiary of the class of Equity Interest in respect of which the Restricted Payment is being made; (c) the Borrower Parent Guarantor and each Restricted Subsidiary may purchase, redeem or otherwise acquire Equity Interests issued by it (in the case of a Restricted Subsidiary, ratably from each Person that owns the class of Equity Interest being repurchased, redeemed or acquired) with the proceeds received from the substantially concurrent issue (in the case of a Restricted Subsidiary, ratably to each Person that owns an Equity Interest in such Restricted Subsidiary) of new shares of its common stock or other common Qualified Equity Interests or warrants or options to acquire any such shares in connection with customary employee or management agreements, plans or arrangementsInterests; (d) the Parent Guarantor, the Borrower shall be permitted to and each Restricted Subsidiary may make Restricted Payments pursuant to and in accordance with their stock option, stock purchase and other benefit plans of general application to management, directors or other employees of the Parent Guarantor (or any direct or indirect parent thereof), the Borrower and the Restricted Subsidiaries, as adopted or implemented in the form ordinary course of business; (e) so long as no Default shall have occurred and be continuing at the time of any action described in this clause (e) or would result therefrom, the Parent Guarantor may (i) declare and make cash dividends to the shareholders its equity holders in respect of the Borrower Qualified Equity Interests and (ii) purchase, redeem or otherwise acquire for cash Qualified Equity Interests issued by it in an aggregate amount in any fiscal year with respect to clauses (i) and (ii) collectively from and after the Effective Date not to exceed the sum of (1) the greater of $10,000,00010,000,000 and 25% of Consolidated EBITDA of the Parent Guarantor, the Borrower and the Restricted Subsidiaries based on the most recent financial statements delivered under Section 5.01(a) or (b) or, prior to the time any such statements are first required to be so delivered pursuant to Section 5.01(a) or (b), the financial statements delivered pursuant to (x) prior to the Funding Date, Section 4.01(d)(i) and (y) on and after the Funding Date, Section 4.01(d)(i) and (ii) plus (2) on and after the Funding Date, so long as the pro forma Total Leverage Ratio is less than 3.75:1.00, an amount not to exceed the Available Amount at the time of the making of such dividend, purchase, redemption or acquisition plus (3) any Net Equity Proceeds; provided that, in the case of each of clauses (i) and (ii) above, the Borrower is in pro forma compliance with the financial covenants set forth in Section 6.11; (f) on and after the Funding Date, so long as no Default shall have occurred and be continuing at the time of any action described in this clause (f) or would result therefrom, the Parent Guarantor may declare and make cash dividends to its equity holders in respect of Disqualified Equity Interests in an amount not to exceed the Available Amount at the time of the making of such dividend plus any Net Equity Proceeds, in each case, if the pro forma Total Leverage Ratio would be less than the Total Leverage Ratio as of the Funding Date; (g) Investments pursuant to Section 6.02(c) shall be permitted; (h) non-cash repurchases of Equity Interests of the Parent Guarantor (or any direct or indirect parent thereof) deemed to occur (i) upon the non-cash exercise of stock options and warrants or similar equity incentive awards, and (ii) in connection with the withholding of a portion of the Equity Interests granted or awarded to a director or an employee to pay for the taxes payable by such director or employee upon such grant or award shall be permitted; (i) the Parent Guarantor, the Borrower or any Restricted Subsidiary may (i) pay cash in lieu of fractional shares in connection with any dividend, split or combination thereof or any Permitted Acquisition and (ii) honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion; (j) the payment of dividends and distributions within forty five (45) days after the date of declaration thereof, if at the date of declaration of such payment, such payment would have complied with the other provisions of this Section 6.06 shall be permitted; (k) the purchase, redemption, acquisition, cancellation or other retirement for a nominal value per right of any rights granted to all holders of common stock of the Parent Guarantor, the Borrower or any Restricted Subsidiary pursuant to any shareholders’ rights plan adopted for the purpose of protecting shareholders from unfair takeover tactics shall be permitted; provided that, any amount such purchase, redemption, acquisition, cancellation or other retirement of cash dividends permitted to be paid such rights is not for the purpose of evading the limitations of this covenant (all as determined in good faith by this clause (d) but not paid in respect a Responsible Officer that is a senior financial officer of any fiscal year commencing on or after October 1, 2006, may be carried forward and paid in any subsequent fiscal yearthe Borrower); (el) the Borrower and each Subsidiary unlimited Restricted Payments shall be permitted to make other Restricted Payments in the form of cash dividends, distributions, purchases, redemptions or other acquisitions of or with respect to shares of its common stock or other common Equity Interests either so long as (i) if at the time of making such Restricted Payment the Consolidated Leverage Ratio (calculated on a pro forma basis no Default shall exist before or after giving effect to such Restricted Payment and any Indebtedness incurred in connection therewith and any other relevant factor, all in accordance with Sections 1.04(c) and (d)) is not greater than 3.50 to 1.00, on an unlimited basis, and (ii) if at the time of making such Restricted Payment the Consolidated pro forma Total Leverage Ratio would be less than 2.50:1.00; (calculated on a pro forma basis giving effect m) the Transactions; (n) the Parent Guarantor, the Borrower and the Restricted Subsidiaries may make distributions to any direct or indirect parent thereof the proceeds of which shall be used (i) to make Permitted Tax Distributions or (ii) to pay such parent’s operating costs and expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business and attributable to the ownership or operations of the Parent Guarantor, the Borrower and the Restricted Payment Subsidiaries, expenses in connection with the Transactions, and any Indebtedness incurred reasonable and indemnification claims made by directors or officers of such parent attributable to the ownership or operations of the Parent Guarantor, the Borrower and the Restricted Subsidiaries; and (o) to the extent constituting Restricted Payments, the Parent Guarantor, the Borrower and the Restricted Subsidiaries may enter into transactions expressly permitted by Section 6.04 and Section 6.05 (other than pursuant to the lead-in connection therewith and any other relevant factorto Section 6.05, all in accordance with Sections 1.04(c) and (d)) is greater than 3.50 or pursuant to 1.00 but less than the maximum permitted level for the most recently ended fiscal quarter set forth in Section 8.12(a6.05(f), in (g) or (k)). Notwithstanding anything to the contrary herein, the Parent Guarantor and the Borrower will not, and will not permit any Restricted Subsidiary to, sell, lease, convey, assign, transfer or otherwise dispose (including pursuant to an amount in exclusive license) of intellectual property that is material to the operation of the business of the Parent Guarantor, the Borrower and the Restricted Subsidiaries, taken as a whole, to any fiscal year Affiliate of the Borrower who is not greater a Loan Party (including any Unrestricted Subsidiary), other than (in each case, to the Maximum Annual Payment Amount extent otherwise permitted pursuant to this Section 6.06) (less any portion x) licenses, sublicenses or cross-licenses of intellectual property in the ordinary course of business and which do not materially interfere with the business of the Maximum Annual Payment Amount utilized Parent Guarantor, the Borrower and the Restricted Subsidiaries, taken as a whole and (y) any such disposition from a Restricted Subsidiary that is not a Loan Party to make Investments pursuant to Section 8.02(o) or to prepay or otherwise satisfy Indebtedness pursuant to Section 8.11(a)(iv))a Restricted Subsidiary that is not a Loan Party.

Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, except: (a) (i) each Loan Party may make Restricted Payments to any other Loan Party, (ii) each Restricted Subsidiary that is not a Loan Party may make Restricted Payments to the Borrower or incur any obligation Restricted Subsidiary and (contingent or otherwise) to do so, except that, in each case (except Section 8.06(a)iii) so long as no Default exists or Event of Default shall have occurred and would be continuing (both before and after the making of such Restricted Payment): (a) caused thereby, each Restricted Subsidiary may make Restricted Payments to the Borrower and to wholly-owned Restricted Subsidiaries (and, any Person other than a Relevant Party that owns a direct Equity Interest in the case of a Restricted Payment by a non-wholly-owned such Restricted Subsidiary, to the Borrower and any so long as no Person other than a Restricted Subsidiary and to each other owner of capital stock or other equity interests receives more than its ratable share of such Restricted Subsidiary on a pro rata basis based on Payments, determined according to their relative ownership interests)respective holdings of the type of Equity Interest in respect of which such Restricted Payments are being made; (b) the Borrower and each Restricted Subsidiary may declare and make dividend payments dividends or other distributions payable solely in the common stock or other common Equity Interests of such Person; (c) the Borrower and each Restricted Subsidiary may purchase, redeem or otherwise acquire shares of its common stock or other common Equity Interests or warrants or options to acquire any such shares in connection with customary employee or management agreements, plans or arrangementsthe proceeds received from the substantially concurrent issue of new common Equity Interests; (d) so long as no Event of Default has occurred and is continuing or would immediately result therefrom, any repurchase, redemption or payment on account of any Equity Interests of Borrower held by any current or former officers, directors or employees (or employees of Affiliates) (or their transferees, spouses, ex-spouses, estates or beneficiaries under their estates), upon their death, disability, retirement, severance or termination of employment; provided that the Borrower aggregate cash consideration paid for all such repurchases, redemptions and payments shall be permitted to make Restricted Payments in the form of cash dividends to the shareholders of the Borrower in an aggregate amount not exceed, in any fiscal year not to exceed year, $10,000,0003,000,000; provided thatprovided, further, that fifty-percent (50%) any amount of cash dividends such repurchases, redemptions or payments permitted to be paid by this clause made (d) but not paid made) pursuant hereto in respect of any a given fiscal year commencing on or after October 1beginning with the fiscal year ended December 31, 2006, 2017 may be carried forward and paid made in any subsequent the immediately succeeding fiscal year or carried back and made in the immediately preceding fiscal year; provided further that during an Event of Default any payments described in this clause may accrue and shall be permitted to be paid upon such Event of Default no longer existing so long as no other Event of Default is continuing at such time; (e) so long as no Default or Event of Default exists or would be caused thereby, and only to the extent permitted by its Partnership Agreement, the Borrower and each Subsidiary shall be permitted may make distributions to make the holders of its Equity Interests up to the amount of Available Cash; (f) so long as no Event of Default is continuing or would result therefrom, any other Restricted Payments may be made in an amount not to exceed $2,000,000 in the form aggregate per annum; and (g) any other Restricted Payments to the extent funded with Net Equity Proceeds from a substantially concurrent issuance or sale of cash dividends, distributions, purchases, redemptions Equity Interests by the Borrower (or other acquisitions of or any contribution with respect to shares of its common stock or other common the Equity Interests either (i) if at the time of making such Restricted Payment the Consolidated Leverage Ratio (calculated on a pro forma basis giving effect to such Restricted Payment and any Indebtedness incurred in connection therewith and any other relevant factor, all in accordance with Sections 1.04(c) and (d)) is not greater than 3.50 to 1.00, on an unlimited basis, and (ii) if at the time of making such Restricted Payment the Consolidated Leverage Ratio (calculated on a pro forma basis giving effect to such Restricted Payment and any Indebtedness incurred in connection therewith and any other relevant factor, all in accordance with Sections 1.04(c) and (d)) is greater than 3.50 to 1.00 but less than the maximum permitted level for the most recently ended fiscal quarter set forth in Section 8.12(a), in an amount in any fiscal year of the Borrower not greater than the Maximum Annual Payment Amount (less any portion of the Maximum Annual Payment Amount utilized to make Investments pursuant to Section 8.02(o) or to prepay or otherwise satisfy Indebtedness pursuant to Section 8.11(a)(iv)Borrower).

Restricted Payments. Declare During any Non-Investment Grade Period, the Borrower will not, and STX and the Borrower will not permit any of their respective subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that, in each case (except Section 8.06(a)) so long as no Default or Event of Default shall have occurred and be continuing (both before and after the making of such Restricted Payment):except: (a) each Restricted Subsidiary may make Restricted Payments to the Borrower and the Subsidiaries may declare and pay dividends ratably with respect to wholly-owned Restricted Subsidiaries (and, their Equity Interests payable solely in the case additional shares of a Restricted Payment by a non-wholly-owned Restricted Subsidiary, to the Borrower and any Restricted Subsidiary and to each other owner of capital stock or other equity interests of such Restricted Subsidiary on a pro rata basis based on their relative ownership interests)Equity Interests; (b) the Borrower and each Subsidiary the Subsidiaries may declare and make dividend payments pay dividends or other distributions payable solely in ratably with respect to their Equity Interests, provided if the common stock Borrower merges with or other common Equity Interests consolidates with or into STX (or if different the ultimate parent of such the Borrower which is a publicly traded Person), then the Borrower shall no longer be able to declare and pay ratable dividends or distributions pursuant to this clause (b); (c) Restricted Payments consisting of cash dividends paid quarterly in respect of STX’s Equity Interests, provided that (i) no such Restricted Payments pursuant to this clause (c) shall be declared, permitted or made in an aggregate amount that is greater than $700,000,000 in any four consecutive fiscal quarter period, and (ii) after giving effect to each such Restricted Payment referred to in this clause (c) and any related Borrowing, the Borrower and each Subsidiary may purchase, redeem or otherwise acquire shares of its common stock or other common Equity Interests or warrants or options to acquire any such shares in connection with customary employee or management agreements, plans or arrangements;Liquidity Amount shall not be less than $800,000,000; and (d) the Borrower other Restricted Payments, provided that (i) no such Restricted Payments shall be declared, permitted to make Restricted Payments in or made if before or after giving effect thereto, the form of cash dividends Total Leverage Ratio is, or on a pro forma basis would be, greater than 3.75:1.00, calculated based upon the financial information most recently delivered to the shareholders Administrative Agent pursuant to clause (c) of the Borrower Section 5.01, and (ii) after giving effect to each such Restricted Payment referred to in an aggregate amount in any fiscal year not to exceed $10,000,000; provided that, any amount of cash dividends permitted to be paid by this clause (d) but and any related Borrowing, the Liquidity Amount shall not paid in respect of be less than $800,000,000. If any fiscal year commencing on or after October 1, 2006, may be carried forward and paid Restricted Payment described in any subsequent fiscal year; (e) the Borrower and each Subsidiary shall be permitted to make other Restricted Payments in the form clause of cash dividends, distributions, purchases, redemptions or other acquisitions of or with respect to shares of its common stock or other common Equity Interests either (i) if this Section 6.07 made at the time an Investment Grade Period ends exceeds the amount of making such Restricted Payment the Consolidated Leverage Ratio (calculated on a pro forma basis giving effect to such Restricted Payment and any Indebtedness incurred in connection therewith and any other relevant factor, all in accordance with Sections 1.04(c) and (d)) is not greater than 3.50 to 1.00, on an unlimited basis, and (ii) if Payments that would be permitted at the time the succeeding Non-Investment Grade Period commences, then the amount of making such Restricted Payment the Consolidated Leverage Ratio (calculated on a pro forma basis giving effect excess shall be deemed to such Restricted Payment and any Indebtedness incurred in connection therewith and any other relevant factor, all in accordance with Sections 1.04(c) and (d)) is greater than 3.50 to 1.00 but less than the maximum have been permitted level for the most recently ended fiscal quarter set forth in Section 8.12(a), in an amount in any fiscal year of the Borrower not greater than the Maximum Annual Payment Amount (less any portion of the Maximum Annual Payment Amount utilized to make Investments pursuant to Section 8.02(o) or to prepay or otherwise satisfy Indebtedness pursuant to Section 8.11(a)(iv))under this Section.

Restricted Payments. Declare or make, directly or indirectly, The Borrowers will not make any Restricted PaymentPayment at any time, or incur any obligation (contingent or otherwise) to do so, except provided that, in each case (except Section 8.06(a)) so long as at the time thereof, and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing continuing, the Borrowers may make the following Restricted Payments (both before and after subject, in each case, to the making of such Restricted Paymentapplicable conditions set forth below): (a) each Restricted Subsidiary the Borrowers may make Restricted Payments in cash to their members in an amount equal to the Borrower Tax Payment Amount with respect to any fiscal period or portion thereof (net of Restricted Payments previously made under this paragraph (a) in respect of such period), so long as at least fifteen days prior to making any such Restricted Payment, the Borrowers shall have delivered to each Lender (i) notification of the amount and to wholly-owned proposed payment date of such Restricted Subsidiaries Payment and (ii) a statement of a Senior Officer (and, in the case event such period is a full fiscal year, the Borrower’s independent certified public accountants) setting forth a detailed calculation of a Restricted the Tax Payment by a non-wholly-owned Restricted Subsidiary, to Amount for such period and showing the Borrower and any Restricted Subsidiary and to each other owner of capital stock or other equity interests amount of such Restricted Subsidiary on a pro rata basis based on their relative ownership interests)Payment and all previous Restricted Payments made pursuant to this Section 8.09(a) in respect of such period; (b) the Borrower and each Subsidiary Borrowers may declare and make dividend payments or other distributions payable solely in cash in respect of Management Fees to the common stock or other common Equity Interests of such Personextent permitted under Section 8.11 hereof; (c) the Borrower and each Subsidiary Borrowers may purchase, redeem make payments in cash in respect of the interest on Affiliate Subordinated Indebtedness constituting Supplemental Capital or otherwise acquire shares of its common stock or other common Equity Interests or warrants or options to acquire any such shares in connection with customary employee or management agreements, plans or arrangements;Cure Monies; and (d) the Borrower shall be permitted to Borrowers may make Restricted Payments payments in the form of cash dividends to the shareholders of the Borrower in an aggregate amount in any fiscal year not to exceed $10,000,000; provided that, any amount of cash dividends permitted to be paid by this clause (d) but not paid in respect of any fiscal year commencing on or after October 1the principal of Affiliate Subordinated Indebtedness and distributions in respect of the equity capital of the Borrowers and may request the issuance of Affiliate Letters of Credit (such payment and issuance being collectively called “Permitted Transactions”), 2006, may be carried forward and paid in any subsequent fiscal year;so long as (e) the Borrower and each Subsidiary shall be permitted to make other Restricted Payments in the form of cash dividends, distributions, purchases, redemptions or other acquisitions of or with respect to shares of its common stock or other common Equity Interests either (i) if in the case of any Permitted Transaction consisting of a payment in respect of the principal of Affiliate Subordinated Indebtedness, or distribution in respect of equity capital, constituting Cure Monies, at least one complete fiscal quarter shall have elapsed subsequent to the last date upon which the Borrowers shall have utilized their cure rights under Section 9.02 hereof, without the occurrence of any Event of Default (and, for purposes hereof, unless the Borrowers indicate otherwise at the time of any such payment, such payment or distribution shall be deemed to be made first from Cure Monies and second from Supplemental Capital); (ii) after giving effect to any Permitted Transaction during any fiscal quarter (the “current fiscal quarter”) and to the making such Restricted Payment of any Capital Expenditures pursuant to Section 8.12(b) hereof during the Consolidated Leverage Ratio current fiscal quarter, the Borrowers would (calculated as at the last day of the most recent fiscal quarter immediately prior to the current fiscal quarter) have been in compliance on a pro forma basis giving effect with Section 8.10 hereof, the determination of such compliance to such Restricted Payment and any Indebtedness incurred in connection therewith and any other relevant factor, all in accordance with Sections 1.04(c) and (d)) is not greater than 3.50 to 1.00, on an unlimited basis, and (ii) if at the time of making such Restricted Payment the Consolidated Leverage Ratio (calculated on a pro forma basis giving effect to such Restricted Payment and any Indebtedness incurred in connection therewith and any other relevant factor, all in accordance with Sections 1.04(c) and (d)) is greater than 3.50 to 1.00 but less than the maximum permitted level for the most recently ended fiscal quarter set forth in Section 8.12(a), in an amount in any fiscal year of the Borrower not greater than the Maximum Annual Payment Amount (less any portion of the Maximum Annual Payment Amount utilized to make Investments pursuant to Section 8.02(o) or to prepay or otherwise satisfy Indebtedness pursuant to Section 8.11(a)(iv)).be determined as if

Restricted Payments. Declare or make, directly or indirectly, Make any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that, in each case (except Section 8.06(a)) so long as no Default or Event of Default shall have occurred and be continuing (both before and after the making of such Restricted Payment):except: (a) each Restricted Subsidiary may make Restricted Payments to the Borrower and to wholly-owned any other Restricted Subsidiaries (and, in the case of a Restricted Payment by a non-wholly-wholly owned Restricted Subsidiary, to the Borrower and or any such other Restricted Subsidiary Subsidiaries and to each other owner of capital stock or other equity interests Equity Interests of such Restricted Subsidiary on a pro rata basis based on ratably according to their relative ownership interestsinterests of the relevant class of Equity Interests or as otherwise required by the applicable Organization Documents); (b) the Borrower and each Subsidiary of the Restricted Subsidiaries may (i) declare and make dividend payments or other distributions Restricted Payments payable solely in the common stock or form of Equity Interests (other than Disqualified Equity Interests not otherwise permitted to be incurred under Section 7.03) of such Person and (ii) issue common Equity Interests upon conversation of such Personany Convertible Stock; (c) the Borrower and each Subsidiary may purchase, redeem or otherwise acquire shares of its common stock or other common Equity Interests or warrants or options to acquire any such shares Restricted Payments made in connection with customary employee any working capital or management agreements, plans or arrangementsother purchase price adjustment in connection with any Acquisition Transaction permitted hereunder; (d) to the extent constituting Restricted Payments, the Borrower shall be and the Restricted Subsidiaries may enter into and consummate transactions expressly permitted to make Restricted Payments in by any provision of Section 7.02 (other than Section 7.02(o)), Section 7.04 (other than a merger or consolidation involving the form of cash dividends to the shareholders of the Borrower in an aggregate amount in any fiscal year not to exceed $10,000,000; provided that, any amount of cash dividends permitted to be paid by this clause Borrower) or Section 7.07 (dother than Section 7.07(a) but not paid in respect of any fiscal year commencing on or after October 1, 2006, may be carried forward and paid in any subsequent fiscal year(j)); (e) Restricted Payments that occur upon or in connection with the exercise of stock options or warrants or similar rights if such Restricted Payments represent a portion of the exercise price of such options or warrants or similar rights or tax withholding obligations with respect thereto; (f) [reserved]; (g) the Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Borrower held by any Management Stockholder, (i) pursuant to any employee or director equity plan, employee or director stock option or profits interest plan or any other employee or director benefit plan or any agreement (including any separation, stock subscription, shareholder or partnership agreement) with any employee, director, consultant or distributor of the Borrower or any of its Subsidiaries or (ii) for any other reason; provided, the aggregate Restricted Payments made pursuant to this Section 7.06(g)(ii) after the Closing Date together with the aggregate amount of loans and each Subsidiary advances to the Borrower made pursuant to Section 7.02(j) in lieu of Restricted Payments permitted by this clause (g)(ii) shall not exceed: (i) the greater of (A) $30,000,000 and (B) 15% of TTM Consolidated Adjusted EBITDA as of the applicable date of measurement in any calendar year, with unused amounts in any calendar year being carried over to the next succeeding calendar year, provided that if such amount if carried over, it will be deemed used after exhaustion of the proceeding cap for such calendar year and may not be carried over to any subsequent year; plus (ii) the amount of any cash bonuses or other compensation otherwise payable to any future, present or former Company Person that are foregone in return for the receipt of Equity Interests of the Borrower or any Restricted Subsidiary; plus (iii) payments made in respect of withholding or other similar taxes payable upon repurchase, retirement or other acquisition or retirement of Equity Interests of the Borrower or its Subsidiaries or otherwise pursuant to any employee or director equity plan, employee or director stock option or profits interest plan or any other employee or director benefit plan or any agreement; (h) the Borrower may purchase Permitted Bond Hedge Transactions, enter into any related Permitted Warrant Transactions in connection with the issuance of Convertible Indebtedness permitted hereunder and make any payments and/or issue common stock in connection with the settlement or early termination of any such Permitted Bond Hedge Transactions or Permitted Warrant Transactions in accordance with its terms, provided that if such settlement or early termination is elected in the discretion of the Borrower, immediately before and after giving effect to any of the foregoing, the Borrower shall be in compliance with Section 8.01: (i) Restricted Payments (i) made in connection with the payment cash in lieu of fractional Equity Interests in connection with any dividend, split or combination thereof or any Permitted Acquisition or other transaction permitted by the Loan Documents or (ii) to honor or in connection with any conversion request by a holder of Convertible Indebtedness and to make cash payments in lieu of fractional shares in connection therewith; (j) [reserved]; (k) repurchases of Equity Interests (i) deemed to occur on the exercise of options by the delivery of Equity Interests in satisfaction of the exercise price of such options or (ii) in consideration of withholding or similar Taxes payable by any future, present or former employee, director or officer (or any spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees of any of the foregoing), including deemed repurchases in connection with the exercise of stock options or the vesting of any equity awards; (l) payments or distributions to satisfy dissenters rights (including in connection with or as a result of the exercise of appraisal rights and the settlement of any claims or actions, whether actual, contingent or potential) pursuant to or in connection with a merger, amalgamation, consolidation, transfer of assets or other transaction permitted by the Loan Documents; (m) payments or distributions of a Restricted Payment within 60 days after the date of declaration thereof if at the date of declaration such Restricted Payment would have been permitted hereunder; (n) [reserved]; (o) the Borrower may (i) redeem, repurchase, retire or otherwise acquire in whole or in part any Equity Interests of the Borrower or any Restricted Subsidiary (“Treasury Equity Interests”), in exchange for, or with the proceeds (to the extent contributed to the Borrower substantially concurrently) of the sale or issuance (other than to the Borrower or any Restricted Subsidiary) of, other Equity Interests or rights to acquire its Equity Interests (“Refunding Equity Interests”) and (ii) declare and pay dividends on any Treasury Equity Interests out of any such proceeds; (p) (i) Restricted Payments in an amount that does not exceed the form amount of cash dividends, distributions, purchases, redemptions or other acquisitions all Permitted Equity Issuances during the period from and including the Business Day immediately following the Closing Date through and including the applicable date of or with respect measurement to shares of its common stock or other common Equity Interests either (i) if at the time of making such Restricted Payment the Consolidated Leverage Ratio (calculated on a pro forma basis giving effect to such Restricted Payment and any Indebtedness incurred in connection therewith and any other relevant factor, all in accordance with Sections 1.04(c) and (d)) is not greater than 3.50 to 1.00, on an unlimited basisextent Not Otherwise Applied, and (ii) redemptions in whole or in part of any of its Equity Interests for another class of its Equity Interests (other than Disqualified Equity Interests, except to the extent issued by the Borrower to a Restricted Subsidiary) or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests (other than Disqualified Equity Interests, except to the extent issued by the Borrower to a Restricted Subsidiary); (q) Restricted Payments constituting or otherwise made in connection with or relating to any Permitted Reorganization; provided that if immediately after giving Pro Forma Effect to any such Permitted Reorganization and the transactions to be consummated in connection therewith, any distributed asset ceases to be owned by the Borrower or another Restricted Subsidiary (or any entity ceases to be a Restricted Subsidiary), the applicable portion of such Restricted Payment must be otherwise permitted under another provision of this Section 7.06 (and constitute utilization of such other Restricted Payment exception or capacity); (r) Restricted Payments; provided that the Secured Net Leverage Ratio (after giving Pro Forma Effect to such Restricted Payment) for the Test Period immediately preceding the making of such Restricted Payment shall be less than or equal 1.00 to 1.00; provided that no Specified Event of Default has occurred or is continuing or would result therefrom; (s) the Borrower may make Restricted Payments in an aggregate amount not to exceed the greater of (A) $40,000,000 and (B) 20% of TTM Consolidated Adjusted EBITDA as of the applicable date of determination; provided no Event of Default has occurred and is continuing or would result therefrom. The amount of any Restricted Payment at any time shall be the amount of cash and the fair market value of other property subject to the Restricted Payment at the time of making such Restricted Payment is made. For purposes of determining compliance with this Section 7.06, in the Consolidated Leverage Ratio event that any Restricted Payment (calculated on a pro forma basis giving effect to or any portion thereof) meets the criteria of more than one of the categories set forth above, the Borrower may, in its sole discretion, at the time such Restricted Payment and is made, divide, classify or reclassify, or at any Indebtedness later time divide, classify, or reclassify (as if incurred in connection therewith and any other relevant factor, all in accordance with Sections 1.04(c) and (d)) is greater than 3.50 to 1.00 but less than the maximum permitted level for the most recently ended fiscal quarter set forth in Section 8.12(aat such time), in an amount such Restricted Payment (or any portion thereof) in any fiscal year of manner that complies with this covenant on the Borrower not greater than date such Restricted Payment is made or such later time, as applicable. Notwithstanding the Maximum Annual Payment Amount (less foregoing, in no event shall any portion of the Maximum Annual Payment Amount utilized Loan Party or any Restricted Subsidiary be permitted to make Investments pursuant a Restricted Payment of any Material Intellectual Property to Section 8.02(o) or to prepay or otherwise satisfy Indebtedness pursuant to Section 8.11(a)(iv))any Unrestricted Subsidiary.

Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that, in each case (except Section 8.06(a)) so long as no Default or Event of Default shall have occurred and be continuing (both before and after at the making time of such Restricted Payment):any action described below or would result therefrom: (a) each any Restricted Subsidiary may make Restricted Payments to the Borrower and to wholly-owned Restricted Subsidiaries (andany Borrower, any Guarantor or any other Person that owns an Equity Interest in the case of a Restricted Payment by a non-wholly-owned such Restricted Subsidiary, ratably according to their respective holdings of the Borrower and any Restricted Subsidiary and to each other owner type of capital stock or other equity interests Equity Interest in respect of which such Restricted Subsidiary on a pro rata basis based on their relative ownership interests)Payment is being made; (b) the any Borrower and each or any Restricted Subsidiary may declare and make dividend payments or other distributions payable solely in the common stock or other common Equity Interests of such Person; (c) the any Borrower and each or any Restricted Subsidiary may purchase, redeem or otherwise acquire Equity Interests issued by it with the proceeds received from the substantially concurrent issue of new shares of its common stock or other common Equity Interests or warrants or options to acquire any such shares in connection with customary employee or management agreements, plans or arrangementsInterests; (d) the Borrower shall be permitted to WFS may make Restricted Payments in the form of cash dividends to the shareholders of the Borrower in an aggregate amount in any fiscal year not to exceed the sum of: (i) $10,000,000; provided that50,000,000, any amount of cash dividends permitted to be paid by this clause plus (dii) but not paid in respect of any (beginning with the fiscal year commencing on or ending December 31, 2011) 50% of Consolidated Net Income calculated quarterly for the previous four fiscal quarters (beginning with the fiscal year ended December 31, 2010), plus (iii) 100% of the net proceeds of all Equity Issuances made after October 1, 2006, may be carried forward and paid in any subsequent fiscal yearthe Closing Date; (e) the Borrower and each Subsidiary shall be permitted to WFS may make other Restricted Payments in the form of cash dividends, distributions, purchases, redemptions or other acquisitions of or with respect to shares of its common stock or other common Equity Interests either (i) if at the time of making such Restricted Payment the Consolidated Leverage Ratio contemplated in WFS’s 2006 Omnibus Plan or any replacement thereof, (calculated on a pro forma basis giving effect to such Restricted Payment and ii) contemplated by WFS’s 1993 Non-Employee Director Plan or any Indebtedness incurred in connection therewith and any other relevant factor, all in accordance with Sections 1.04(c) and (d)) is not greater than 3.50 to 1.00, on an unlimited basisreplacement thereof, and (iiiii) if at the time of making such Restricted Payment the Consolidated Leverage Ratio (calculated on a pro forma basis giving effect to such Restricted Payment and any Indebtedness incurred in connection therewith and any other relevant factor, all in accordance with Sections 1.04(c) and (d)) is greater than 3.50 the issuance of its Equity Interests to 1.00 but less than the maximum permitted level employees or non-employees of WFS as compensation for the most recently ended fiscal quarter set forth in Section 8.12(a), in an amount in any fiscal year of the Borrower not greater than the Maximum Annual Payment Amount (less any portion of the Maximum Annual Payment Amount utilized to make Investments pursuant to Section 8.02(o) or to prepay or otherwise satisfy Indebtedness pursuant to Section 8.11(a)(iv))services performed for WFS by such individuals.

Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that, in each case (except Section 8.06(a)) so long as no Default or Event of Default shall have occurred and be continuing (both before and after at the making time of such Restricted Payment):any action described below or would result therefrom: (a) each Restricted Subsidiary may make Restricted Payments to the Borrower Borrower, the Guarantors and any other Person that owns an Equity Interest in such Subsidiary, ratably according to wholly-owned their respective holdings of the type of Equity Interest in respect of which such Restricted Subsidiaries (andPayment is being made; provided, however, that in the case of a Restricted Payment by a non-wholly-owned Restricted Subsidiary, to the Borrower and any Restricted Subsidiary and Payments to each other owner of capital stock or other equity interests Lariat Services, Inc., the aggregate amount of such Restricted Subsidiary on a pro rata basis based on their relative ownership interestsPayments shall not exceed (i) $1,000,000 less (ii) the aggregate amount of Investment in Lariat made pursuant to Section 7.02(c); (b) the Borrower and each Subsidiary may declare and make dividend payments or other distributions payable solely in the common stock or other common Equity Interests of such Person; (c) the Borrower and each Subsidiary may purchase, redeem or otherwise acquire Equity Interests issued by it with the proceeds received from the substantially concurrent issue of new shares of its common stock or other common Equity Interests or warrants or options to acquire any such shares in connection with customary employee or management agreements, plans or arrangementsInterests; (d) (i) so long as no Event of Default exists, the Borrower shall be permitted to make Restricted Payments in the form of may pay regular cash dividends on the Preferred Stock and make cash payments pursuant to the shareholders Section 6(f) of the Certificate of Designations for the Preferred Stock; (ii) so long as no Default exists, the Borrower in an aggregate amount in any fiscal year not may make cash payments pursuant to exceed $10,000,000Section 7(a) or 9(e) of the Certificate of Designations for the Preferred Stock; provided that, any amount and (iii) the Borrower may make payment-in-kind dividends on the Preferred Stock and issue its common stock upon conversion of cash dividends permitted to be paid by this clause (d) but not paid in respect of any fiscal year commencing on or after October 1, 2006, may be carried forward and paid in any subsequent fiscal year;the Preferred Stock; and (e) the Borrower and each Subsidiary shall be permitted to make other may repurchase Equity Interests held by an employee upon termination of employment; provided that the aggregate amount of such Restricted Payments in the form of cash dividends, distributions, purchases, redemptions or other acquisitions of or with respect to shares of its common stock or other common Equity Interests either (i) if at the time of making such Restricted Payment the Consolidated Leverage Ratio (calculated on a pro forma basis giving effect to such Restricted Payment and any Indebtedness incurred in connection therewith and any other relevant factor, all in accordance with Sections 1.04(c) and (d)) is shall not greater than 3.50 to 1.00, on an unlimited basis, and (ii) if at the time of making such Restricted Payment the Consolidated Leverage Ratio (calculated on a pro forma basis giving effect to such Restricted Payment and any Indebtedness incurred in connection therewith and any other relevant factor, all in accordance with Sections 1.04(c) and (d)) is greater than 3.50 to 1.00 but less than the maximum permitted level for the most recently ended fiscal quarter set forth in Section 8.12(a), in an amount in any fiscal year of the Borrower not greater than the Maximum Annual Payment Amount (less any portion of the Maximum Annual Payment Amount utilized to make Investments pursuant to Section 8.02(o) or to prepay or otherwise satisfy Indebtedness pursuant to Section 8.11(a)(iv))exceed $ 500,000.

Restricted Payments. Declare The Borrower will not, and will not permit any of its Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, return any capital to its stockholders or incur make any obligation distribution of its Property to its Equity Interest holders, except (contingent i) the Borrower may declare and pay dividends with respect to its Equity Interests payable solely in additional shares of its Equity Interests (other than Disqualified Capital Stock); (ii) Subsidiaries may declare and pay dividends or otherwiseany other distributions to the Borrower or any Guarantor with respect to their Equity Interests; (iii) to the Borrower may make Restricted Payments in connection with stock option plans or other benefit plans for management or employees of the Borrower and its Subsidiaries; (iv) the Borrower may make Restricted Payments in connection with the termination of its directors’ or employees’ option agreement or restricted stock agreements under any of Borrower’s incentive stock plans; provided, however, that the aggregate amounts paid in respect thereof do sonot exceed $2,500,000; (v) after January 1, except that2023, in each case the Borrower may make Restricted Payments so long as, after giving effect thereto, the Payment Conditions are satisfied; and (except Section 8.06(a)vi) so long as no Default or Event of Default shall have has occurred and be continuing (both before and after is continuing, the making of such Restricted Payment): (a) each Restricted Subsidiary Borrower may make Restricted Payments to the extent necessary to permit Holdings: ​ ​ (A) to pay general administrative costs and expenses (including corporate overhead, legal or similar expenses ) and franchise Taxes, and similar fees and expenses required to maintain the organizational existence of Holdings, in each case, which are reasonable and customary and incurred in the ordinary course of business, plus any reasonable and customary indemnification claim made by any director, officer, member of management, manager, employee and/or consultant of Holdings, in each case, to the extent attributable to the ownership or operations of Holdings and/or its subsidiaries (but excluding, for the avoidance of doubt, the portion of any such amount, if any, that is attributable to the ownership or operations of any subsidiary of Holdings other than the Borrower and/or its Subsidiaries); (B) to discharge the consolidated, combined, unitary or similar U.S. federal, state or local Tax liabilities of Holdings and its subsidiaries when and as due, to wholly-owned Restricted Subsidiaries the extent such liabilities are directly attributable to the income of the Borrower and/or any Subsidiary of the Borrower; provided that the amount of any such payment in respect of any taxable year does not exceed the amount of Taxes that the Borrower and/or its applicable Subsidiary would have paid as standalone companies or as a standalone group taking into account any available deductions, losses and credits; (C) to pay audit and other accounting and reporting expenses of Holdings to the extent such expenses are attributable to the Holdings and/or its subsidiaries (but excluding, for the avoidance of doubt, the portion of any such expenses, if any, that is attributable to the ownership or operations of any subsidiary of Holdings other than the Borrower and/or its Subsidiaries); (D) to pay any insurance premium that is payable by, or attributable to, Holdings and/or its subsidiaries that is payable by Holdings (but excluding, for the avoidance of doubt, the portion of any such premium, if any, that is attributable to the ownership or operations of any subsidiary of Holdings other than the Borrower and/or its Subsidiaries); (E) to pay (x) reasonable fees and expenses related to any debt and/or equity offering, investment and/or acquisition (whether or not consummated) permitted hereunder and (y) charges related to compliance with the provisions of the Securities Act of 1933, as amended and the Securities Exchange Act of 1934, as amended; and (F) to pay reasonable and customary salary, bonus, severance and other benefits payable to current or former directors, officers, members of management, managers, employees or consultants of Holdings to the extent such salary, bonuses, severance and other benefits are attributable and reasonably allocated to the operations of the Borrower and/or its Subsidiaries, in the case of a Restricted Payment by a non-wholly-owned Restricted Subsidiary, to the Borrower and any Restricted Subsidiary and to each other owner of capital stock or other equity interests of such Restricted Subsidiary on a pro rata basis based on their relative ownership interests); (b) the Borrower and each Subsidiary may declare and make dividend payments or other distributions payable solely in the common stock or other common Equity Interests of such Person; (c) the Borrower and each Subsidiary may purchase, redeem or otherwise acquire shares of its common stock or other common Equity Interests or warrants or options to acquire any such shares in connection with customary employee or management agreements, plans or arrangements; (d) the Borrower shall be permitted to make Restricted Payments in the form of cash dividends to the shareholders of the Borrower in an aggregate amount in any fiscal year not to exceed $10,000,000; provided thatforegoing clauses (A) through (F), any so long as Holdings applies the amount of cash dividends permitted to be paid by this clause (d) but not paid in respect of any fiscal year commencing on or after October 1, 2006, may be carried forward and paid in any subsequent fiscal year; (e) the Borrower and each Subsidiary shall be permitted to make other Restricted Payments in the form of cash dividends, distributions, purchases, redemptions or other acquisitions of or with respect to shares of its common stock or other common Equity Interests either (i) if at the time of making such Restricted Payment the Consolidated Leverage Ratio (calculated on a pro forma basis giving effect to for such Restricted Payment and any Indebtedness incurred in connection therewith and any other relevant factor, all in accordance with Sections 1.04(c) and (d)) is not greater than 3.50 to 1.00, on an unlimited basis, and (ii) if at the time of making such Restricted Payment the Consolidated Leverage Ratio (calculated on a pro forma basis giving effect to such Restricted Payment and any Indebtedness incurred in connection therewith and any other relevant factor, all in accordance with Sections 1.04(c) and (d)) is greater than 3.50 to 1.00 but less than the maximum permitted level for the most recently ended fiscal quarter set forth in Section 8.12(a), in an amount in any fiscal year of the Borrower not greater than the Maximum Annual Payment Amount (less any portion of the Maximum Annual Payment Amount utilized to make Investments pursuant to Section 8.02(o) or to prepay or otherwise satisfy Indebtedness pursuant to Section 8.11(a)(iv))purpose.

Restricted Payments. Declare The Borrower will not, and will not permit any of its Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, except (a) the Borrower may declare and pay dividends with respect to its Equity Interests, make any other Restricted Payments, payable solely in additional shares of its common stock, (b) Subsidiaries may declare and pay dividends ratably with respect to their Equity Interests, (c) the Borrower may make Restricted Payments pursuant to and in accordance with stock option plans or incur other benefit plans for management or employees of the Borrower and its Subsidiaries, (d) so long as, at the time any obligation such Restricted Payment is made and immediately after giving effect (contingent including pro forma effect) thereto (and to the incurrence of any Indebtedness in connection therewith) (i) no Default or otherwiseEvent of Default shall have occurred and is continuing, (ii) the Total Net Leverage Ratio is not greater than 2.50 to do so1.00 and (iii) the Borrower is in compliance with the financial covenants set forth in Section 6.11, except thatthe Borrower and its Subsidiaries may make other Restricted Payments, in each case (except Section 8.06(a)e) so long as no Default or Event of Default shall have has occurred and be is continuing or would arise after giving effect (both before and after the making of such Restricted Payment): (aincluding pro forma effect) each Restricted Subsidiary may make Restricted Payments to the Borrower and to wholly-owned Restricted Subsidiaries (and, in the case of a Restricted Payment by a non-wholly-owned Restricted Subsidiary, to thereto the Borrower and any Restricted Subsidiary and Subsidiaries may repurchase Equity Interests from any current or former officer, director, employee or consultant to each other owner of capital stock comply with Tax withholding obligations relating to Taxes payable by such Person upon the grant or other equity interests award of such Restricted Subsidiary on a Equity Interests (or upon vesting thereof), (f) so long as no Default or Event of Default has occurred and is then continuing or would arise after giving effect (including pro rata basis based on their relative ownership interests); (bforma effect) thereto, the Borrower and each Subsidiary any Subsidiaries may declare and make dividend payments or other distributions payable solely in the common stock or other common purchase Equity Interests of such Person; (c) the Borrower and each Subsidiary may purchasefrom present or former officers, redeem directors or otherwise acquire shares of its common stock or other common Equity Interests or warrants or options to acquire any such shares in connection with customary employee or management agreements, plans or arrangements; (d) the Borrower shall be permitted to make Restricted Payments in the form of cash dividends to the shareholders employees of the Borrower or any Subsidiary upon the death, disability, retirement or termination of employment or service of such officer, director or employee, in an aggregate amount in any fiscal year not to exceed exceeding $10,000,000; provided that, any amount of cash dividends permitted to be paid by this clause (d) but not paid in respect of any fiscal year commencing on or after October 1, 2006, may be carried forward and paid in any subsequent fiscal year; (e) the Borrower and each Subsidiary shall be permitted to make other Restricted Payments in the form of cash dividends, distributions, purchases, redemptions or other acquisitions of or with respect to shares of its common stock or other common Equity Interests either (i) if at the time of making such Restricted Payment the Consolidated Leverage Ratio (calculated on a pro forma basis giving effect to such Restricted Payment and any Indebtedness incurred in connection therewith and any other relevant factor, all in accordance with Sections 1.04(c) and (d)) is not greater than 3.50 to 1.00, on an unlimited basis, and (ii) if at the time of making such Restricted Payment the Consolidated Leverage Ratio (calculated on a pro forma basis giving effect to such Restricted Payment and any Indebtedness incurred in connection therewith and any other relevant factor, all in accordance with Sections 1.04(c) and (d)) is greater than 3.50 to 1.00 but less than the maximum permitted level for the most recently ended fiscal quarter set forth in Section 8.12(a), in an amount 5,000,000 in any fiscal year of the Borrower and (g) so long as no Default or Event of Default has occurred and is continuing or would arise after giving effect (including pro forma effect) thereto, the Borrower and any Subsidiaries may make other Restricted Payments in an aggregate amount not greater than the Maximum Annual Payment Amount (less exceeding $15,000,000 in any portion fiscal year of the Maximum Annual Payment Amount utilized to make Investments pursuant to Section 8.02(o) or to prepay or otherwise satisfy Indebtedness pursuant to Section 8.11(a)(iv))Borrower.

Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, or incur any obligation except: (contingent or otherwisea) the Subsidiaries may make Restricted Payments to the Borrower; (b) to do sothe extent constituting Restricted Payments, except thatthe Borrower and its Subsidiaries may enter into and consummate transactions otherwise expressly permitted by any provision of Section 7.08; (c) payments made or expected to be made by the Borrower or any of its Subsidiaries in respect of withholding or similar Taxes payable by any future, present or former employee, director, manager or consultant (or any spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees of any of the foregoing) and any repurchases of Equity Interests in each case consideration of such payments including deemed repurchases in connection with the exercise of stock options, provided that (except Section 8.06(a)i) so long as no Default or Event of Default shall have has occurred and be is continuing and (both before and after the making of such Restricted Payment): (a) each Restricted Subsidiary may make Restricted Payments to the Borrower and to wholly-owned Restricted Subsidiaries (and, in the case of a Restricted Payment by a non-wholly-owned Restricted Subsidiary, to the Borrower and any Restricted Subsidiary and to each other owner of capital stock or other equity interests of such Restricted Subsidiary on a pro rata basis based on their relative ownership interests); (bii) the Borrower and each Subsidiary may declare and make dividend payments or other distributions payable solely in is compliant with the common stock or other common Equity Interests of Asset Coverage Ratio after giving effect to such Person; (c) the Borrower and each Subsidiary may purchase, redeem or otherwise acquire shares of its common stock or other common Equity Interests or warrants or options to acquire any such shares in connection with customary employee or management agreements, plans or arrangementspayment; (d) the Borrower shall be permitted to may make Restricted Payments in provided that (i) no Default or Event of Default has occurred and is continuing, (ii) on the form of cash dividends most recent Test Date the Asset Coverage Ratio was at least 1.50 to 1.00, (iii) both before and after giving effect to such Restricted Payment, at least 5 drilling rigs are actively drilling new ▇▇▇▇▇ on acreage burdened by the shareholders of Royalty, (iv) the Borrower is compliant on a Pro Forma Basis with the Financial Performance Covenants after giving effect to such Restricted Payment, and (v) if the Borrower shall have delivered a Reserve Report in an aggregate amount connection with a Borrowing Base redetermination under the First Lien Credit Agreement, the Borrower shall demonstrate that its Asset Coverage Ratio is at least 1.50 to 1.00 prior to making such Restricted Payment based on the Reserve Report delivered in any fiscal year connection with such redetermination whether or not to exceed $10,000,000; provided that, any amount of cash dividends permitted to be paid by this clause (d) but not paid in respect of any fiscal year commencing on or after October 1, 2006, may be carried forward and paid in any subsequent fiscal yearsuch redetermination shall have occurred; (e) the Borrower and each Subsidiary shall be permitted to may make other Restricted Payments in to any direct or indirect parent of the form of cash dividends, distributions, purchases, redemptions or other acquisitions of or with respect to shares of its common stock or other common Equity Interests either Borrower: (i) if at the time proceeds of making such Restricted Payment which shall be used to pay franchise and excise taxes and other fees, taxes and expenses required to maintain its corporate existence; and (ii) the Consolidated Leverage Ratio proceeds of which shall be used to make distributions to any member in an aggregate amount in respect of each calendar year that is not in excess of the product of (calculated on a pro forma basis giving effect x) the amount of net taxable income allocated to such Restricted Payment member (net of (i) cumulative taxable losses allocated to the member for any taxable period and any Indebtedness incurred in connection therewith and any other relevant factor, all in accordance with Sections 1.04(c) and (d)) is not greater than 3.50 to 1.00, on an unlimited basis, previously taken into account and (ii) if any depletion calculated at the time of making such Restricted Payment member level, utilizing the Consolidated Leverage Ratio (calculated on a pro forma basis giving effect to such Restricted Payment and any Indebtedness incurred in connection therewith and any other relevant factor, all in accordance with Sections 1.04(c) and (d)) is greater than 3.50 to 1.00 but less than the maximum permitted level for the most recently ended fiscal quarter set forth in Section 8.12(acost depletion method), in an amount in any fiscal year whether such income is treated as a distributive share of the income of a Borrower not greater than or as a “guaranteed payment,” or otherwise, multiplied by (y) the Maximum Annual Payment Amount (less any portion of the Maximum Annual Payment Amount utilized to make Investments pursuant to Section 8.02(o) or to prepay or otherwise satisfy Indebtedness pursuant to Section 8.11(a)(iv))Presumed Tax Rate for such period.

Restricted Payments. Declare The Borrower will not, and will not permit any of its Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that, in each case (except Section 8.06(a)) so long as no Default or Event of Default shall have occurred and be continuing (both before and after the making of such Restricted Payment): (a) each Restricted Subsidiary may make Restricted Payments to the Borrower may declare and pay dividends with respect to wholly-owned Restricted Subsidiaries (andits Equity Interests payable solely in additional shares of its common stock, in the case of a Restricted Payment by a non-wholly-owned Restricted Subsidiary, to the Borrower and any Restricted Subsidiary and to each other owner of capital stock or other equity interests of such Restricted Subsidiary on a pro rata basis based on their relative ownership interests); (b) the Borrower and each Subsidiary Subsidiaries may declare and make dividend payments or other distributions payable solely in the common stock or other common pay dividends ratably with respect to their Equity Interests of such Person; Interests, (c) the Borrower may declare and each Subsidiary may purchasepay the Merck Dividend, redeem or otherwise acquire shares of its common stock or other common Equity Interests or warrants or options to acquire any such shares in connection with customary employee or management agreements, plans or arrangements; (d) the Borrower shall be permitted to may make Restricted Payments pursuant to and in the form of cash dividends to the shareholders accordance with stock option plans or other benefit plans for management or employees of the Borrower in an aggregate amount in any fiscal year not to exceed $10,000,000; provided thatand its Subsidiaries, any amount of cash dividends permitted to be paid by this clause (d) but not paid in respect of any fiscal year commencing on or after October 1, 2006, may be carried forward and paid in any subsequent fiscal year; (e) the Borrower may redeem, repurchase, retire, defease, or otherwise acquire any Equity Interests of the Borrower in exchange for, or out of the net cash proceeds of the sale (other than to a Subsidiary of the Borrower) within 30 days of, Equity Interests of the Borrower; and each Subsidiary shall be permitted to (f) provided that no Default is outstanding or would result therefrom, the Borrower may declare and pay cash dividends and make other Restricted Payments in the form of cash dividends, distributions, purchases, redemptions or other acquisitions of or with respect to shares of its common stock Equity Interests if, at the time such dividend or other common Equity Interests either Restricted Payment is declared or made (after giving effect thereto), the aggregate principal amount of the cash dividends paid or other Restricted Payments made after the date hereof (excluding the Merck Dividend) does not exceed (i) if if, at the time of making any such Restricted Payment, the Facilities have a rating of at least "BBB-" and "Baa3" from S&P and ▇▇▇▇▇'▇, respectively, the sum of $25,000,000 plus (in the case of any such Restricted Payment the made after December 31, 2003) 25% of Consolidated Leverage Ratio (calculated on a pro forma basis giving effect to such Restricted Payment and any Indebtedness incurred in connection therewith and any other relevant factor, all in accordance with Sections 1.04(c) and (d)) is not greater than 3.50 to 1.00, on an unlimited basis, and (ii) if at the time of making such Restricted Payment the Consolidated Leverage Ratio (calculated on a pro forma basis giving effect to such Restricted Payment and any Indebtedness incurred in connection therewith and any other relevant factor, all in accordance with Sections 1.04(c) and (d)) is greater than 3.50 to 1.00 but less than the maximum permitted level Net Income for the period from June 30, 2003 until the last day of the then most recently ended fiscal quarter set forth and (ii) if, at the time of any such Restricted Payment, the Facilities do not have both the ratings specified in Section 8.12(a)clause (i) or better, (x) in fiscal year 2003, $25,000,000, (y) in fiscal year 2004, the sum of $25,000,000 plus any portion pursuant to clause (x) which is unused for fiscal year 2003 and (z) in each fiscal year thereafter, the sum of $25,000,000 plus 25% of Consolidated Net Income for the previous fiscal year; provided that (A) any such portion of Consolidated Net Income applied in making Restricted Payments pursuant to this clause (z) shall be up to an amount equal to the portion of Excess Cash Flow for the previous fiscal year which is not required to be applied in prepayment of the Loans pursuant to Section 2.10, (B) no such portion of Consolidated Net Income may be so applied pursuant to this clause (z) if the Borrower's ratio of Consolidated Total Debt to Consolidated EBITDA for the period of four fiscal quarters ending on the last day of the then most recently ended fiscal quarter, exceeds 1.5:1 and (C) no such Restricted Payments made pursuant to this clause (z) shall in aggregate exceed $100,000,000 in any fiscal year of the Borrower not greater than the Maximum Annual Payment Amount (less any portion of the Maximum Annual Payment Amount utilized to make Investments pursuant to Section 8.02(o) or to prepay or otherwise satisfy Indebtedness pursuant to Section 8.11(a)(iv))year.

Restricted Payments. Declare No Credit Party shall, or makeshall permit any of its Restricted Subsidiaries to, directly or indirectly, make any Restricted Payment, except: (a) any Subsidiary may make Restricted Payments to any Borrower or incur any obligation Wholly Owned Subsidiary Guarantor; (contingent or otherwiseb) any Subsidiary may make Restricted Payments pro rata to do so, except that, the holders of the Stock of such Subsidiaries entitled to receive the same; (c) any Borrower may make Restricted Payments in each case connection with the share repurchases required by the director and employee compensation programs as described on Schedule (except Section 8.06(a)7.14) so long as (i) no Default or Event of Default shall have has occurred and be is continuing or would result therefrom and (both before and after ii) the making aggregate amount of such Restricted Payment): (a) each Restricted Subsidiary may make Restricted Payments paid pursuant to the Borrower and to wholly-owned Restricted Subsidiaries (and, this Section 7.14(c) does not exceed $5,000,000 in the case of a Restricted Payment by a non-wholly-owned Restricted Subsidiary, to the Borrower and any Restricted Subsidiary and to each other owner of capital stock or other equity interests of such Restricted Subsidiary on a pro rata basis based on their relative ownership interests); (b) the Borrower and each Subsidiary may declare and make dividend payments or other distributions payable solely in the common stock or other common Equity Interests of such Person; (c) the Borrower and each Subsidiary may purchase, redeem or otherwise acquire shares of its common stock or other common Equity Interests or warrants or options to acquire any such shares in connection with customary employee or management agreements, plans or arrangementsFiscal Year; (d) cash payments by Visteon in lieu of the Borrower issuance of fractional shares upon the exercise of options in the ordinary course of business; (e) other Restricted Payments so long as (i) no Default or Event of Default has occurred and is continuing or would result therefrom after giving Pro Forma Effect to such Restricted Payment and (ii) Excess Availability is at least $100,000,000 after giving effect to such Restricted Payment; (f) Restricted Payments used by Halla and its Subsidiaries to redeem or repurchase (including, without limitation, for cash) Stock from Halla’s existing equity-holders so long as (i) Visteon and its Restricted Subsidiaries, taken as a whole, continue to own not less than 51% of the Stock of Halla and continue to control the same ratio (or better) of board seats of Halla after any such transaction as Visteon and its Restricted Subsidiaries do on the Closing Date and (ii) such redemptions or repurchases are made in accordance with Section 7.4; and (g) Borrowers and their Restricted Subsidiaries shall be permitted to make Restricted Payments in the form of cash dividends to the shareholders of the Borrower in an aggregate amount in any fiscal year not to exceed $10,000,000; provided that, any amount of cash dividends permitted to be paid by this clause (d) but not paid in respect of any fiscal year commencing on or after October 1, 2006, may be carried forward and paid in any subsequent fiscal year; (e) the Borrower and each Subsidiary shall be permitted to make other Restricted Payments in the form of cash dividends, distributions, purchases, redemptions or other acquisitions of or with respect to shares of its common stock or other common Equity Interests either (i) if at the time of making such Restricted Payment the Consolidated Leverage Ratio (calculated on a pro forma basis giving effect to such Restricted Payment and any Indebtedness incurred in connection therewith and any other relevant factor, all in accordance with Sections 1.04(c) and (d)) is not greater than 3.50 to 1.00, on an unlimited basis, and (ii) if at the time of making such Restricted Payment the Consolidated Leverage Ratio (calculated on a pro forma basis giving effect to such Restricted Payment and any Indebtedness incurred in connection therewith and any other relevant factor, all in accordance with Sections 1.04(c) and (d)) is greater than 3.50 to 1.00 but less than the maximum permitted level for the most recently ended fiscal quarter set forth in Section 8.12(a), in an amount in any fiscal year of the Borrower not greater than the Maximum Annual Payment Amount (less any portion of the Maximum Annual Payment Amount utilized to make Investments pursuant to Section 8.02(o) or to prepay or otherwise satisfy Indebtedness pursuant to Section 8.11(a)(iv)2.3(f).

Restricted Payments. Declare or makeEach Borrower will not, directly or indirectly, and will not permit any of its Subsidiaries to make any Restricted Payment; provided, or incur any obligation (contingent or otherwise) to do so, except that, in each case (except Section 8.06(a)) so long as no Default or Event of Default shall have occurred it is permitted by law and be continuing (both before and after the making Governing Documents of such Restricted Payment):Borrower or its Subsidiaries, (a) each Restricted Subsidiary the Borrowers and their respective Subsidiaries may make Restricted Payments to purchase, redeem or otherwise acquire or retire pursuant to a management or employee benefit plan in an aggregate amount not to exceed the Borrower greater of (x) $50,000,000 and to wholly-owned Restricted Subsidiaries (andy) 0.75% of Consolidated Net Tangible Assets, in measured as of the case last day of a Restricted Payment by a non-wholly-owned Restricted Subsidiary, the fiscal quarter ending prior to the Borrower and any Restricted Subsidiary and to each other owner of capital stock or other equity interests date of such Restricted Subsidiary on a pro rata basis based on their relative ownership interests);Payment for which financial statements have been delivered to the Agent, per fiscal year, (b) the Borrower Parent and each Subsidiary may declare and make dividend payments or other distributions payable solely in the common stock or other common Equity Interests of such Person;(other than Disqualified Equity Interests), (c) the (i) any Borrower may make Restricted Payments to another Borrower, (ii) any Subsidiary that is not a Borrower may make Restricted Payments to any Borrower or any Guarantor, (iii) any Subsidiary that is not a Loan Party may make Restricted Payments to any other Subsidiary and each (iv) any Borrower (other than Parent) or any Subsidiary may purchasemake any Restricted Payments to its parent entity (or, redeem or otherwise acquire shares of if such Subsidiary is a non-wholly owned Subsidiary, to its common stock or other common Equity Interests or warrants or options to acquire any such shares in connection with customary employee or management agreements, plans or arrangements;parent entities on a pro rata basis based on its parents’ relative ownership interests), (d) the Borrower shall be permitted to make Restricted Payments in the form of cash dividends to the shareholders of the Borrower in an aggregate amount in any fiscal year not to exceed $10,000,000; provided that, any amount of cash dividends permitted to be paid by this clause (d) but not paid in respect of any fiscal year commencing on or after October 1, 2006, may be carried forward and paid in any subsequent fiscal year;[Reserved], (e) in addition to the Borrower and each Subsidiary shall be permitted to foregoing, Parent may make any other Restricted Payments so long as (i) the Payment Conditions are satisfied at the time declared and (ii) until such time as such Restricted Payment is made, a Reserve has been established by Agent in an amount equal to the form Restricted Payment so declared; provided, that, so long as no Default or Event of cash dividendsDefault has occurred and is continuing or would result therefrom, distributions, purchases, redemptions or other acquisitions of or the foregoing conditions shall not be required to be satisfied with respect to shares Restricted Payments in an aggregate principal amount of its common stock or other common Equity Interests either up to the greater of (x) $50,000,000 and (y) 0.75% of Consolidated Net Tangible Assets, measured as of the last day of the fiscal quarter ending prior to the date of such prepayment for which financial statements have been delivered to the Agent, during any fiscal year, and (f) Parent may make Restricted Payments of the type described in clauses (b) and (c) of the definition thereof so long as (i) if at no Default or Event of Default has occurred and is continuing or would result therefrom and (ii) for each of the time of making 30 consecutive days immediately preceding such Restricted Payment the Consolidated Leverage Ratio (calculated on a pro forma basis Payment, and both before and after giving effect to such Restricted Payment and any Indebtedness incurred in connection therewith and any other relevant factorPayment, all in accordance with Sections 1.04(c(A) and (d)) is not greater than 3.50 to 1.00, on an unlimited basisno Loans are outstanding, and (iiB) if at the time of making such Restricted Payment the Consolidated Leverage Ratio (calculated on a pro forma basis giving effect to such Restricted Payment and any Indebtedness incurred in connection therewith and any other relevant factor, all in accordance with Sections 1.04(c) and (d)) Liquidity is greater than 3.50 to 1.00 but not less than the maximum permitted level for the most recently ended fiscal quarter set forth in Section 8.12(a), in an amount in any fiscal year of the Borrower not greater than the Maximum Annual Payment Amount (less any portion of the Maximum Annual Payment Amount utilized to make Investments pursuant to Section 8.02(o) or to prepay or otherwise satisfy Indebtedness pursuant to Section 8.11(a)(iv))$500,000,000.

Restricted Payments. Declare or The Borrower will not, nor will it permit any Subsidiary to, make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that, in each case (except Section 8.06(a)) so long as no Default or Event of Default shall have occurred and be continuing (both before and after the making of such Restricted Payment):except: (a) each Restricted Subsidiary the Borrower may make Restricted Payments with respect to the Borrower and its Equity Interests or with respect to wholly-owned Restricted Subsidiaries (andEquity Equivalents, in the case of a Restricted Payment by a non-wholly-owned Restricted Subsidiaryeach case, to the Borrower and any Restricted Subsidiary and to each payable solely in Equity Interests or Equity Equivalents (other owner of capital stock or other equity interests of such Restricted Subsidiary on a pro rata basis based on their relative ownership intereststhan Disqualified Equity Interests); (b) the Borrower and each Subsidiary its Subsidiaries may declare make Restricted Payments not exceeding $10,000,000 during any fiscal year pursuant to and make dividend payments in accordance with stock option or stock ownership plans, employment agreements, incentive plans or other distributions payable solely in benefit plans approved by the common stock or other common Equity Interests Borrower’s Board of such PersonDirectors for management, directors, former directors, employees and former employees of the Borrower and the Subsidiaries; (c) the Borrower and each Subsidiary its Subsidiaries may purchase, redeem or otherwise acquire shares make Restricted Payments; provided that (i) with respect to any Restricted Payment of its common stock the type declared by the board of directors (or other common Equity Interests governing body) of such Person, no Event of Default exists at the time of declaration thereof or warrants would result immediately after giving effect thereto (as determined at the time of such declaration) and such Restricted Payment is made within 60 days of such declaration and (ii) with respect to any other Restricted Payments, no Event of Default exists at the time such Restricted Payment is made or options to acquire any such shares in connection with customary employee or management agreements, plans or arrangementsimmediately after giving effect thereto; (d) the Borrower shall be permitted to and its Subsidiaries may make additional Restricted Payments in the form of cash dividends to the shareholders of the Borrower not otherwise permitted by this Section 6.06 in an aggregate amount in any fiscal year not to exceed exceeding $10,000,000; provided that, any amount of cash dividends permitted to be paid by this clause (d) but not paid in respect of any fiscal year commencing on or after October 1, 2006, may be carried forward and paid in any subsequent fiscal year150,000,000; (e) the Borrower and each Subsidiary shall be permitted to make other Restricted Payments in the form of cash dividendsits Subsidiaries may redeem, distributions, purchases, redemptions repurchase or other acquisitions of or with respect to shares of its common stock or other common otherwise acquire Qualified Equity Interests either or options in exchange for (ior out of the proceeds of a substantially concurrent offering of) if at the time of making such Restricted Payment the Consolidated Leverage Ratio (calculated on a pro forma basis giving effect to such Restricted Payment and any Indebtedness incurred in connection therewith and any other relevant factor, all in accordance with Sections 1.04(c) and (d)) is not greater than 3.50 to 1.00, on an unlimited basis, and (ii) if at the time of making such Restricted Payment the Consolidated Leverage Ratio (calculated on a pro forma basis giving effect to such Restricted Payment and any Indebtedness incurred in connection therewith and any other relevant factor, all in accordance with Sections 1.04(c) and (d)) is greater than 3.50 to 1.00 but less than the maximum permitted level for the most recently ended fiscal quarter set forth in Section 8.12(a), in an amount in any fiscal year Qualified Equity Interests of the Borrower not greater than the Maximum Annual Payment Amount (less any portion or newly issued options to acquire Equity Interests of the Maximum Annual Payment Amount utilized to make Investments pursuant to Section 8.02(oBorrower; (f) [Reserved]; (g) the Borrower or to prepay any Subsidiaries may redeem, repurchase or otherwise satisfy Indebtedness pursuant acquire Qualified Equity Interests within 180 days of any Acquisition which was funded in whole or in part through the issuance of Qualified Equity Interests to Section 8.11(a)(iv))the sellers of the business acquired in such Acquisition so long as the amount expended does not exceed the current market value (as determined in good faith by the Borrower) of the Qualified Equity Interests issued to such sellers in such Acquisition; and (h) the Borrower may make ordinary cash dividends on any Equity Interests of the Borrower.

Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, Payment except that, in each case (except Section 8.06(a)) so long as no Default or Event of Default shall have occurred and be continuing (both before and after the making of such Restricted Payment):: (a) each Restricted Subsidiary may make Restricted Payments to the Borrower Borrower, the Subsidiaries and any other Person that owns an Equity Interest in such Subsidiary, ratably according to wholly-owned Restricted Subsidiaries (and, their respective holdings of the type of Equity Interest in the case respect of a which such Restricted Payment by a non-wholly-owned Restricted Subsidiary, is being made or as otherwise required pursuant to the Borrower and any Restricted Subsidiary and to each other owner of capital stock or other equity interests of such Restricted Subsidiary on a pro rata basis based on their relative ownership interests)its Organizational Documents; (b) the Borrower and each Subsidiary may declare and make dividend payments or other distributions payable solely in the common stock or other common Equity Interests of such PersonPerson or another Subsidiary; (c) the Borrower and each Subsidiary may purchase, redeem or otherwise acquire Equity Interests issued by it with the proceeds received from the substantially concurrent issue of new shares of its common stock or other common Equity Interests or warrants or options to acquire any such shares in connection with customary employee or management agreements, plans or arrangementsIndebtedness permitted under Section 7.03; (d) the Borrower shall be permitted to make Restricted Payments or any of its Subsidiaries may purchase (i) Equity Interests in the form of cash dividends to the shareholders any Loan Party or options with respect thereto held by directors, officers or employees of the Borrower or any Restricted Subsidiary (or their estates or authorized representatives) in an aggregate amount connection with (A) the death, disability or termination of employment of any such director, officer or employee or (B) any benefit or incentive plans to provide funds for the payment of any Tax or other amounts owing by such directors, officers or employees upon vesting of the Equity Interests or options provided under such plans; and (ii) Equity Interests in any fiscal year not to exceed $10,000,000Loan Party for future issuance under any employee stock plan; provided that, any amount of cash dividends permitted to be paid by this clause (d) but not paid in respect of any fiscal year commencing on or after October 1, 2006, may be carried forward and paid in any subsequent fiscal year;and (e) the Borrower and each Subsidiary shall be permitted to make other Restricted Payments in the form of cash dividends, distributions, purchases, redemptions or other acquisitions of or with respect to shares of its common stock or other common Equity Interests either (i) if at the time of making such Restricted Payment the Consolidated Leverage Ratio (calculated on a pro forma basis immediately after giving effect to such the relevant Restricted Payment set forth below, no Default shall have occurred and any Indebtedness incurred be continuing and the Borrower is in connection therewith and any other relevant factor, all in accordance with Sections 1.04(c) and (d)) is not greater than 3.50 to 1.00, on an unlimited basis, and (ii) if at the time of making such Restricted Payment the Consolidated Leverage Ratio (calculated on a pro forma basis giving effect to such Restricted Payment and any Indebtedness incurred in connection therewith and any other relevant factor, all in accordance compliance with Sections 1.04(c) and (d)) is greater than 3.50 to 1.00 but less than the maximum permitted level for the most recently ended fiscal quarter financial covenants set forth in Section 8.12(a)7.11 for the four consecutive fiscal quarters ended on the last day of the most recent fiscal period for which financial statements have been delivered to the Administrative Agent pursuant to Section 6.01, in an amount calculated as if such Restricted Payment had been consummated on the first day of such fiscal period, the Borrower or any of its Subsidiaries may: (i) make Restricted Payments after January 1, 2015, if the Consolidated Net Leverage Ratio as of the date of such Restricted Payment does not exceed 3.50 to 1.00; (ii) make cash dividends in any fiscal year of the Borrower in an amount not greater than the Maximum Annual Payment Amount (less to exceed $27,500,000; provided that any portion of such $27,500,000 not used in any such fiscal year may be carried forward to the Maximum Annual Payment Amount utilized next fiscal year and any cash dividend which is made in such next fiscal year pursuant to this exception shall first reduce such amount which is carried forward; (iii) make Investments Restricted Payments in an amount not to exceed $100,000,000 in the aggregate during the term of this Agreement; and (iv) make Restricted Payments in an amount not to exceed the sum of (A) if positive, 50% of Consolidated Net Income from July 1, 2013 to the end of the most recently ended fiscal quarter for which financial statements have been delivered to the Administrative Agent pursuant to Section 8.02(o6.01(a) or (b), as applicable, (or, if Consolidated Net Income for such period is a deficit, less 100% of such deficit), (B) 100% of the proceeds from any sale or issuance of Equity Interests of the Borrower and its Restricted Subsidiaries that are not otherwise used to prepay make Investments, (C) 100% of the proceeds received by the Borrower and its Restricted Subsidiaries from any Unrestricted Subsidiary, joint venture or Restricted Investment Disposed of; provided that, notwithstanding the terms of this clause (C), for any Disposition of an Unrestricted Subsidiary that is a Foreign Subsidiary, only 25% of the proceeds received by the Borrower or its Restricted Subsidiaries from such Disposition shall be included under this clause (C), (D) the excess of 100% of the fair market value (as reasonably determined by the Borrower in good faith) of any Investment in an Unrestricted Subsidiary which is redesignated as a Restricted Subsidiary over any Indebtedness associated with such redesignated Subsidiary, and (E) 100% of the dividends or distributions received from a Person who is not a Restricted Subsidiary (including any Unrestricted Subsidiary or any Joint Venture) which are in cash or cash equivalents and have not otherwise satisfy Indebtedness been added to such sum pursuant to clause (A) above; provided that, notwithstanding the foregoing limitations of Section 8.11(a)(iv7.06(e), any such Restricted Payments may be made within 60 days of the date of declaration of any such Restricted Payment, if, on the date of declaration of the Restricted Payment, such Restricted Payment would have complied with the requirements of Section 7.06(e).

Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, except: (a) (i) each Loan Party may make Restricted Payments to any other Loan Party, (ii) each Restricted Subsidiary that is not a Loan Party may make Restricted Payments to the Borrower or incur any obligation Restricted Subsidiary and (contingent or otherwise) to do so, except that, in each case (except Section 8.06(a)iii) so long as no Default exists or Event of Default shall have occurred and would be continuing (both before and after the making of such Restricted Payment): (a) caused thereby, each Restricted Subsidiary may make Restricted Payments to the Borrower and to wholly-owned Restricted Subsidiaries (and, any Person other than a Relevant Party that owns a direct Equity Interest in the case of a Restricted Payment by a non-wholly-owned such Restricted Subsidiary, to the Borrower and any so long as no Person other than a Restricted Subsidiary and to each other owner of capital stock or other equity interests receives more than its ratable share of such Restricted Subsidiary on a pro rata basis based on Payments, determined according to their relative ownership interests)respective holdings of the type of Equity Interest in respect of which such Restricted Payments are being made; (b) the Borrower and each Restricted Subsidiary may declare and make dividend payments dividends or other distributions payable solely in the common stock or other common Equity Interests of such Person; (c) the Borrower and each Restricted Subsidiary may purchase, redeem or otherwise acquire shares of its common stock or other common Equity Interests or warrants or options to acquire any such shares in connection with customary employee or management agreements, plans or arrangementsthe proceeds received from the substantially concurrent issue of new common Equity Interests; (d) so long as no Event of Default has occurred and is continuing or would immediately result therefrom, any repurchase, redemption or payment on account of any Equity Interests of Borrower held by any current or former officers, directors or employees (or employees of Affiliates) (or their transferees, spouses, ex-spouses, estates or beneficiaries under their estates), upon their death, disability, retirement, severance or termination of employment; provided that the Borrower aggregate cash consideration paid for all such repurchases, redemptions and payments shall be permitted to make Restricted Payments in the form of cash dividends to the shareholders of the Borrower in an aggregate amount not exceed, in any fiscal year not to exceed year, $10,000,0001,500,000; provided thatprovided, further, that fifty-percent (50%) any amount of cash dividends such repurchases, redemptions or payments permitted to be paid by this clause made (d) but not paid made) pursuant hereto in respect of any a given fiscal year commencing on or after October 1, 2006, may be carried forward and paid made in any subsequent the immediately succeeding fiscal year or carried back and made in the immediately preceding fiscal year; (e) the Borrower ; provided further that during an Event of Default any payments described in this clause may accrue and each Subsidiary shall be permitted to be paid upon such Event of Default no longer existing so long as no other Event of Default is continuing at such time; (i) to the extent the underwriters in the Borrower’s initial public offering exercise their so-called “greenshoe” option as contemplated in the Registration Statement, the Borrower may make distributions in an aggregate amount up to the proceeds received therefrom, (ii) to the extent the underwriters in the Borrower’s initial public offering do not exercise their so-called “greenshoe” option as contemplated in the Registration Statement, PBF LLC may purchase any such unpurchased common Equity Interests for no consideration and (iii) the Closing Date Dividend; (f) so long as no Default or Event of Default exists or would be caused thereby, and only to the extent permitted by its Partnership Agreement, the Borrower may make distributions to the holders of its Equity Interests up to the amount of Available Cash; (g) so long as no Event of Default is continuing or would result therefrom, any other Restricted Payments may be made in an amount not to exceed $500,000 in the form aggregate per annum; and (h) any other Restricted Payments to the extent funded with Net Equity Proceeds from a substantially concurrent issuance or sale of cash dividends, distributions, purchases, redemptions Equity Interests by the Borrower (or other acquisitions of or any contribution with respect to shares of its common stock or other common the Equity Interests either (i) if at the time of making such Restricted Payment the Consolidated Leverage Ratio (calculated on a pro forma basis giving effect to such Restricted Payment and any Indebtedness incurred in connection therewith and any other relevant factor, all in accordance with Sections 1.04(c) and (d)) is not greater than 3.50 to 1.00, on an unlimited basis, and (ii) if at the time of making such Restricted Payment the Consolidated Leverage Ratio (calculated on a pro forma basis giving effect to such Restricted Payment and any Indebtedness incurred in connection therewith and any other relevant factor, all in accordance with Sections 1.04(c) and (d)) is greater than 3.50 to 1.00 but less than the maximum permitted level for the most recently ended fiscal quarter set forth in Section 8.12(a), in an amount in any fiscal year of the Borrower not greater than the Maximum Annual Payment Amount (less any portion of the Maximum Annual Payment Amount utilized to make Investments pursuant to Section 8.02(o) or to prepay or otherwise satisfy Indebtedness pursuant to Section 8.11(a)(iv)Borrower).

Restricted Payments. Declare or makeThe Borrower shall not, and shall cause each Restricted Subsidiary not to, directly or indirectly, declare or make any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that, in each case (except Section 8.06(a)) so long as no Default or Event of Default shall have occurred and be continuing (both before and after the making of such Restricted Payment):: (a) each Restricted Subsidiary may make Restricted Payments to the Borrower and to whollyWholly-owned Owned Restricted Subsidiaries (and, in the case of a Restricted Payment by a non-wholly-owned Restricted Subsidiary, to the Borrower and any Restricted Subsidiary and to each other owner of capital stock or other equity interests Equity Interests of such Restricted Subsidiary on a pro rata basis based on their relative ownership interests); (b) the Borrower and each Restricted Subsidiary may declare and make dividend payments or other distributions payable solely in the common stock or other common Equity Interests of such Person; (c) the Borrower and each Restricted Subsidiary may purchase, redeem or otherwise acquire shares of its common stock or other common Equity Interests or warrants or options to acquire any such shares or make any other Restricted Payment, in connection each case, with customary employee or management agreements, plans or arrangements; (d) the proceeds received by the Borrower shall be permitted to make Restricted Payments in from the form substantially concurrent issue of cash dividends to the shareholders of the Borrower in an aggregate amount in any fiscal year not to exceed $10,000,000; provided that, any amount of cash dividends permitted to be paid by this clause (d) but not paid in respect of any fiscal year commencing on or after October 1, 2006, may be carried forward and paid in any subsequent fiscal year; (e) the Borrower and each Subsidiary shall be permitted to make other Restricted Payments in the form of cash dividends, distributions, purchases, redemptions or other acquisitions of or with respect to new shares of its common stock or other common Equity Interests of the Borrower; (d) a Restricted Payment to pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Borrower held by any future, present or former employee, director or consultant of the Borrower or any of its Restricted Subsidiaries either pursuant to any management equity plan or stock option plan or any other management or employee benefit plan or agreement or upon the termination of such employee, director or consultant’s employment, directorship or consultancy; provided, however, that the aggregate Restricted Payments made under this clause (d) do not exceed the greater of (x) $7,500,000 and (y) 2.50% of Consolidated Adjusted EBITDA of the Borrower and its Restricted Subsidiaries for the Calculation Period then most recently ended at the time of such Restricted Payment in any calendar year (with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum of the greater of (x) $12,500,000 and (y) 4.0% of Consolidated Adjusted EBITDA of the Borrower and its Restricted Subsidiaries for the Calculation Period then most recently ended at the time of such Restricted Payment in any calendar year); (e) the Borrower may declare or pay cash dividends to its stockholders, purchase, redeem or otherwise acquire shares of its capital stock or warrants, rights or options to acquire any such shares for cash, and the Borrower and its Restricted Subsidiaries may make other Restricted Payments, in each case so long as: (i) no Event of Default shall be continuing or would be caused thereby, (ii) after giving pro forma effect thereto the Borrower would be in compliance with the Financial Covenant, calculated on a Pro Forma Basis, as of the last day of such most recently ended Calculation Period, and (iii) the aggregate amount of all such Restricted Payments pursuant to this clause (e) does not exceed the sum of (A) the greater of (x) $50,000,000 and (y) 17.5% of Consolidated Adjusted EBITDA of the Borrower and its Restricted Subsidiaries for the Calculation Period then most recently ended at the time of such Restricted Payment and (B) the Available Amount; (f) the Borrower may pay cash dividends to its stockholders within 60 days after the date of its declaration if such dividend could have been paid on the date of its declaration in compliance with this Section 8.06; (g) the Borrower may redeem or repurchase any Equity Interest or Indebtedness of the Borrower or any of its Subsidiaries (other than any Equity Interests or Indebtedness which is held or beneficially owned by the Borrower or any Affiliate of the Borrower); (i) if at the time holder or beneficial owner of making such Equity Interests or Indebtedness is required to qualify under the Gaming Laws and does not so qualify; or (ii) if necessary in the reasonable, good faith judgment of the Board of Directors of the Borrower, as evidenced by a board resolution, to prevent the loss or secure the reinstatement of any Gaming License which if lost or not reinstated, as the case may be, would have a material adverse effect on the business of the Borrower and its Restricted Payment Subsidiaries, taken as a whole, or would restrict the Consolidated Leverage Ratio ability of the Borrower or any of its Restricted Subsidiaries to conduct business in any gaming jurisdiction; (calculated h) the Borrower may make cash payments solely in lieu of fractional shares issuable as dividends on a pro forma basis giving effect to such its Equity Interests; (i) the Borrower and its Restricted Payment and any Indebtedness incurred in connection therewith and any Subsidiaries may make other relevant factorRestricted Payments after the Closing Date, all in accordance with Sections 1.04(cso long as (i) and (d)) is not greater than 3.50 to 1.00, on an unlimited basis, no Event of Default shall exist or be continuing or would result therefrom and (ii) if at after giving pro forma effect to the time making of making such Restricted Payment Payment, the Consolidated Total Leverage Ratio (Ratio, calculated on a pro forma basis giving effect to such Restricted Payment and any Indebtedness incurred in connection therewith and any other relevant factor, all in accordance with Sections 1.04(c) and (d)) is greater than 3.50 to 1.00 but less than the maximum permitted level for Pro Forma Basis as of the most recently ended fiscal quarter set forth in Section 8.12(a)Calculation Period, in an amount in any fiscal year would not exceed 3.50 to 1.00; and (j) if the Borrower becomes a member (or becomes treated as a disregarded entity of a member) of a consolidated income tax group of which a direct or indirect parent of the Borrower not greater than is the Maximum Annual Payment Amount (less any portion of common parent, the Maximum Annual Payment Amount utilized Borrower may make Permitted Tax Distributions to make Investments pursuant to Section 8.02(o) or to prepay or otherwise satisfy Indebtedness pursuant to Section 8.11(a)(iv))such parent.

Restricted Payments. Declare Capri Holdings will not, and will not permit any of its Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, except (a) Capri Holdings may declare and pay dividends with respect to its Equity Interests payable solely in additional shares of its common stock, (b) Subsidiaries may declare and pay dividends ratably with respect to their Equity Interests, (c) Capri Holdings may make Restricted Payments pursuant to and in accordance with stock option plans or incur other benefit plans for management or employees of the Company and its Subsidiaries (including, without limitation, redemptions or repurchases of Equity Interests (i) deemed to occur upon exercise of options or warrants or similar rights by the delivery of Equity Interests in satisfaction of the exercise price such options or warrants or similar rights or (ii) in consideration of withholding or similar taxes payable by any obligation future, present or former employee, director, manager or consultant (contingent or otherwiseany spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees of any of the foregoing)), (d) to do so, except that, in each case (except Section 8.06(a)) Capri Holdings and its Subsidiaries may make any Restricted Payment so long as prior to making such Restricted Payment and after giving effect thereto (i) no Default or Event of Default shall have has occurred and be is continuing (both before and after the making of such Restricted Payment): (a) each Restricted Subsidiary may make Restricted Payments to the Borrower and to wholly-owned Restricted Subsidiaries (and, in the case of a Restricted Payment by a non-wholly-owned Restricted Subsidiary, to the Borrower and any Restricted Subsidiary and to each other owner of capital stock or other equity interests of such Restricted Subsidiary on a pro rata basis based on their relative ownership interests); (b) the Borrower and each Subsidiary may declare and make dividend payments or other distributions payable solely in the common stock or other common Equity Interests of such Person; (c) the Borrower and each Subsidiary may purchase, redeem or otherwise acquire shares of its common stock or other common Equity Interests or warrants or options to acquire any such shares in connection with customary employee or management agreements, plans or arrangements; (d) the Borrower shall be permitted to make Restricted Payments in the form of cash dividends to the shareholders of the Borrower in an aggregate amount in any fiscal year not to exceed $10,000,000; provided that, any amount of cash dividends permitted to be paid by this clause (d) but not paid in respect of any fiscal year commencing on or after October 1, 2006, may be carried forward and paid in any subsequent fiscal year; (e) the Borrower and each Subsidiary shall be permitted to make other Restricted Payments in the form of cash dividends, distributions, purchases, redemptions or other acquisitions of or with respect to shares of its common stock or other common Equity Interests either (i) if at the time of making such Restricted Payment the Consolidated Leverage Ratio (calculated on a pro forma basis giving effect to such Restricted Payment and any Indebtedness incurred in connection therewith and any other relevant factor, all in accordance with Sections 1.04(c) and (d)) is not greater than 3.50 to 1.00, on an unlimited basis, would occur and (ii) if on a Pro Forma Basis the Leverage Ratio as at the time last day of making such Restricted Payment the Consolidated Leverage Ratio (calculated on a pro forma basis giving effect to such Restricted Payment and any Indebtedness incurred in connection therewith and any other relevant factor, all in accordance with Sections 1.04(c) and (d)) is greater than 3.50 to 1.00 but less than the maximum permitted level for the most recently ended fiscal quarter set forth in Section 8.12(a)of Capri Holdings for which financial statements are available does not exceed 3.75 to 1.00, in an and (e) Capri Holdings and its Subsidiaries may make other Restricted Payments so long as prior to making such Restricted Payment and after giving effect thereto no Event of Default has occurred and is continuing or would occur; provided that the aggregate amount in of all Restricted Payments made pursuant to this clause (ef) shall not exceed $25,000,000 during any fiscal year of the Borrower not greater than the Maximum Annual Payment Amount (less any portion of the Maximum Annual Payment Amount utilized to make Investments Capri Holdings; provided, that no Restricted Payments may be made pursuant to Section 8.02(oclause (d) or to prepay or otherwise satisfy Indebtedness pursuant to (e) of this Section 8.11(a)(iv))6.07 during the Covenant Relief Period.

Restricted Payments. Declare Holdings shall not, nor shall it permit any Subsidiary to, declare, pay or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, Payment except that, in each case (except Section 8.06(a)) so long as no Default or Event of Default shall have occurred and be continuing (both before and after the making of such Restricted Payment):: (a) each Restricted Subsidiary of the Borrower may make Restricted Payments to the Borrower, any Subsidiaries of the Borrower that is a Guarantor and any other Person that owns a direct Equity Security in such Subsidiary, rateably according to wholly-owned Restricted Subsidiaries (and, their respective holdings of the type of Equity Security in the case respect of a which such Restricted Payment by a non-wholly-owned Restricted Subsidiary, to the Borrower and any Restricted Subsidiary and to each other owner of capital stock or other equity interests of such Restricted Subsidiary on a pro rata basis based on their relative ownership interests)is being made; (b) the Borrower Holdings and each Subsidiary may declare and make dividend payments or other distributions payable solely in the common stock or other common Equity Interests Securities of such Person; (c) Holdings may distribute rights pursuant to any existing shareholder rights plan or redeem such rights in accordance with the Borrower and each Subsidiary may purchase, redeem or otherwise acquire shares terms of its common stock or other common Equity Interests or warrants or options to acquire any such shares in connection with customary employee or management agreements, plans or arrangementsexisting shareholder rights plan; (d) the Borrower shall be permitted to may make Restricted Payments in the form to Holdings to pay general corporate and overhead expenses and other administrative expenses of cash dividends Holdings and to the shareholders make customary indemnification payments to officers and directors of the Borrower Holdings in an aggregate amount in any fiscal year not to exceed $10,000,000; provided that, any amount of cash dividends permitted to be paid by for this clause (d) but not paid in respect of any to exceed $5,000,000 for each fiscal year commencing on or after October 1, 2006, may be carried forward and paid in any subsequent fiscal yearof Holdings; (e) the Borrower and each Subsidiary shall be permitted to may make other Restricted Payments in the form of cash dividends, distributions, purchases, redemptions or other acquisitions of or with respect to shares of its common stock or other common Equity Interests either (i) if at any mandatory or scheduled payment on the time of making such Restricted Payment the Consolidated Leverage Ratio (calculated on a pro forma basis giving effect to such Restricted Payment and any Indebtedness incurred in connection therewith and any First Lien Notes, Subscription Receipts, Senior Secured Notes or other relevant factor, all in accordance with Sections 1.04(c) and (d)) is not greater than 3.50 to 1.00, on an unlimited basisSubordinated Indebtedness, and (ii) any optional payment constituting an Early Retirement of (A) Subordinated Indebtedness owing by the Borrower or any Subsidiary that is otherwise permitted hereunder, (B) the Senior Secured Notes and (C) the First Lien Notes; provided that in the case of this clause (ii) after giving effect thereto the Payment Conditions are satisfied; (f) the Loan Parties may make any payment constituting an Early Retirement of Indebtedness as a result of a refinancing, refunding, extension, defeasance, discharge, renewal or replacement of Indebtedness that is permitted by Section 5.1; (g) the Borrower may make Restricted Payments to Holdings (and Holdings may make Restricted Payments to its Parent) (i) to enable Holdings (or its Parent) to redeem or repurchase Equity Securities from officers, directors, employees or consultants of Holdings or its Subsidiaries, upon termination of employment or service, in connection with the exercise of stock options, stock appreciation rights or other equity incentives or equity based incentives, or in connection with the death or disability of such officers, directors, employees or consultants; provided that in all such cases the aggregate amount paid in respect of all such shares so redeemed or repurchased does not exceed $2,500,000 in the aggregate in any fiscal year; (ii) that consist of the cancellation of Indebtedness owing to a Loan Party from officers, directors, employees or consultants of Holdings or its Subsidiaries in connection with any repurchase of Equity Securities; and (iii) arising from repurchases of Equity Securities deemed to occur upon the exercise of stock options if at such stock represents a portion of the time exercise price thereof; (i) Holdings may (A) make regularly scheduled payments of making interest in respect of any Permitted Convertible Indebtedness and (B) make cash payments in connection with any conversions of Permitted Convertible Indebtedness (provided that, in the case of each of (A) and (B), other than cash payments in lieu of fractional shares upon conversion, both immediately prior and after giving effect to any such payment, (x) no Default or Event of Default shall have occurred and be continuing or result therefrom and (y) the Payment Conditions are satisfied), and (ii) the Borrower may distribute to Holdings cash in amounts necessary to enable Holdings to make any payment referred to in the foregoing clause (i); (i) Restricted Payments that constitute, or are part of, the Skate Acquisition, including pursuant to any rights offering that is made in connection with such transaction and/or a redemption of such rights; (j) any release of the proceeds thereof and retirement of the Subscription Receipts in accordance with their terms, or any exchange of Subscription Receipts for First Lien Notes; and (k) other Restricted Payments during the term of this Agreement in an aggregate amount not to exceed $10,000,000 plus, so long as immediately before and immediately after giving effect thereto on a Pro Forma Basis the Payment Conditions are satisfied, the Additional Available Amount on the date such Restricted Payment the Consolidated Leverage Ratio (calculated on a pro forma basis giving effect to such Restricted Payment and any Indebtedness incurred in connection therewith and any other relevant factor, all in accordance with Sections 1.04(c) and (d)) is greater than 3.50 to 1.00 but less than the maximum permitted level for the most recently ended fiscal quarter set forth in Section 8.12(a), in an amount in any fiscal year of the Borrower not greater than the Maximum Annual Payment Amount (less any portion of the Maximum Annual Payment Amount utilized to make Investments pursuant to Section 8.02(o) or to prepay or otherwise satisfy Indebtedness pursuant to Section 8.11(a)(iv))made.

Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that, in each case (except Section 8.06(a)) so long as no Default or Event of Default shall have occurred and be continuing (both before and after at the making time of such Restricted Payment):any action described below or would result therefrom: (a) each Restricted Subsidiary may make Restricted Payments to the Borrower and to wholly-owned Restricted Subsidiaries (and, in the case of a Restricted Payment by a non-wholly-owned Restricted Subsidiary, to the Borrower and any Restricted Subsidiary and to each other owner of capital stock or other equity interests Equity Interests of such Restricted Subsidiary on a pro rata basis based on their relative ownership interests); (b) each Subsidiary of the Borrower and each Subsidiary may declare and make dividend payments or other distributions payable solely in the common stock or other common Equity Interests of such Person; (c) the Borrower and each Subsidiary may purchase, redeem or otherwise acquire shares of its common stock or other common Equity Interests or warrants or options to acquire any such shares in connection with customary employee or management agreements, plans or arrangements; (d) the Borrower shall be permitted to make Restricted Payments in proceeds received from the form substantially concurrent issue of cash dividends to the shareholders of the Borrower in an aggregate amount in any fiscal year not to exceed $10,000,000; provided that, any amount of cash dividends permitted to be paid by this clause (d) but not paid in respect of any fiscal year commencing on or after October 1, 2006, may be carried forward and paid in any subsequent fiscal year; (e) the Borrower and each Subsidiary shall be permitted to make other Restricted Payments in the form of cash dividends, distributions, purchases, redemptions or other acquisitions of or with respect to new shares of its common stock or other common Equity Interests Interests; (d) the Borrower may make Restricted Payments so long as (1) the Material Debt Documents then outstanding would permit such Restricted Payment, and (2) if, after giving effect thereto, either (A) the pro forma Consolidated Senior Leverage Ratio would be less than 2.00:1.00 or (B) the aggregate amount of such Restricted Payments would be less than the sum of (x) $50,000,000 in each fiscal year plus (y) up to 100% of the Net Cash Proceeds from the sale or issuance by the Borrower of any of its Equity Interest since the Restatement Closing Date not used to make any Restricted Payments under Section 7.06(c) above plus (z) 50% of the Consolidated Net Income since the Restatement Closing Date; and (e) so long as such Restricted Payment would be permitted under the Material Debt Documents then outstanding, the Borrower may (A) redeem or purchase the Convertible Notes, in whole or in part, at a redemption or purchase price not to exceed 100% of the principal amount of the Convertible Notes to be redeemed, together with accrued or unpaid interest thereon with any premium or other additional cash amounts with respect thereto to be paid pursuant to Section 7.06(d); provided, that after giving pro forma effect to such redemption or repurchase and any transactions related thereto, (i) if at the time of making such Restricted Payment Borrower shall be in compliance with the Consolidated Leverage Ratio (calculated on a pro forma basis giving effect to such Restricted Payment and any Indebtedness incurred covenants set forth in connection therewith and any other relevant factor, all in accordance with Sections 1.04(c) and (d)) is not greater than 3.50 to 1.00, on an unlimited basisSection 7.10, and (ii) if at the time Borrower shall have a minimum of making such Restricted Payment $75,000,000 of any combination of cash on hand and availability under a revolving credit facility or (B) refinance the Consolidated Leverage Ratio (calculated on Convertible Notes, in whole or in part, using subordinated Indebtedness having a pro forma basis giving effect to such Restricted Payment and any Indebtedness incurred in connection therewith and any other relevant factor, all in accordance with Sections 1.04(c) and (d)) is greater than 3.50 to 1.00 but less maturity date longer than the maximum permitted level for debt being refinanced and having subordination terms not materially less favorable to the most recently ended fiscal quarter set forth in Section 8.12(a), in an amount in any fiscal year Lenders than the terms of the Borrower not greater than the Maximum Annual Payment Amount (less any portion of the Maximum Annual Payment Amount utilized to make Investments pursuant to Section 8.02(o) or to prepay or otherwise satisfy Indebtedness pursuant to Section 8.11(a)(iv))debt being refinanced.

Restricted Payments. Declare or makepay any dividend (other than dividends payable solely in common stock of the Person making such dividend) on, or make any payment on account of, or set apart assets for a sinking or other analogous fund for, the purchase, redemption, defeasance, retirement or other acquisition of, any Capital Stock of the Borrower or any of its Subsidiaries, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of the Borrower or any of its Subsidiaries (collectively, “Restricted PaymentPayments”), except: (a) the Borrower may make payments and other distributions to Holdings (or incur any obligation its designee) contemplated by and in accordance with Section 4.19; (contingent or otherwise) to do so, except that, in each case (except Section 8.06(a)b) so long as the Distribution Conditions are satisfied as of the date of any Restricted Payment the Borrower may make payments and other distributions to the Sponsor (or its designee) contemplated by and in accordance with Section 3.8(b) of the Depositary Agreement; (c) any Subsidiary of the Borrower may make Restricted Payments to the Borrower or any Subsidiary Guarantor; (d) the Borrower may make payments to Holdings (or its designee) to reimburse Holdings for general and administrative costs of the Project directly incurred by Holdings and other corporate overhead expenses in the ordinary course of business not to exceed $500,000 in any fiscal year; (e) the Borrower may reimburse any Affiliate of the Borrower for the costs of obtaining, maintaining, renewing and amending any Acceptable Sponsor Letter of Credit as contemplated by clause (o) of the definition of O&M Costs or clause (iii) of priority Third of Section 3.1(b) of the Depositary Agreement; (f) so long as no Event of Default shall have occurred and be continuing, the Borrower may make payments and other distributions to Holdings or its Affiliates (or their respective designees) at any time equal to the amount of any taxes described in clause (a) of the definition of “Net Cash Proceeds” (provided that, for purposes of this clause (f) and determining the amount of such taxes, Asset Sales referred to in the definition of “Net Cash Proceeds” shall be deemed to include Dispositions permitted pursuant to Section 7.5(i)); 104 Sunshine (Northeast) – Credit Agreement (g) if no Default or Event of Default shall have occurred and be continuing (both before and after continuing, the making of such Restricted Payment): (a) each Restricted Subsidiary may make Restricted Payments to the Borrower and to wholly-owned Restricted Subsidiaries (andBorrower, in the case of a Restricted Payment by a non-wholly-owned Restricted Subsidiary, to the Borrower and any Restricted Subsidiary and to each other owner of capital stock or other equity interests of such Restricted Subsidiary on a pro rata basis based on their relative ownership interests); (b) the Borrower and each Subsidiary may declare and make dividend payments or other distributions payable solely in the common stock or other common Equity Interests of such Person; (c) the Borrower and each Subsidiary may purchase, redeem or otherwise acquire shares of its common stock or other common Equity Interests or warrants or options to acquire any such shares in connection with customary employee or management agreements, plans or arrangements; (d) the Borrower shall be permitted to make Restricted Payments in the form of cash dividends to the shareholders of the Borrower in an aggregate amount in any fiscal year not to exceed $10,000,000; provided thatSpecified Asset Disposition, any amount of cash dividends permitted to be paid by this clause (d) but not paid Net Cash Proceeds in respect excess of any fiscal year commencing on or after October 1, 2006, may be carried forward and paid in any subsequent fiscal year;the Specified AD Prepayment Amount relating thereto; and (e) the Borrower and each Subsidiary shall be permitted to make other Restricted Payments in the form of cash dividends, distributions, purchases, redemptions or other acquisitions of or with respect to shares of its common stock or other common Equity Interests either (ih) if at no Default or Event of Default shall have occurred and be continuing, the time of making such Restricted Payment the Consolidated Leverage Ratio (calculated on a pro forma basis giving effect to such Restricted Payment and any Indebtedness incurred Borrower, in connection therewith and with any other relevant factorPPA Buyout, all any amount of Net Cash Proceeds in accordance with Sections 1.04(c) and excess of the PPA Buyout Prepayment Amount relating thereto (d)) is not greater than 3.50 to 1.00which, on an unlimited basis, and (ii) if at the time of making such Restricted Payment the Consolidated Leverage Ratio (calculated on a pro forma basis giving effect to such Restricted Payment and any Indebtedness incurred in connection therewith and any other relevant factor, all in accordance with Sections 1.04(c) and (d)) is greater than 3.50 to 1.00 but less than the maximum permitted level for the most recently ended fiscal quarter set forth avoidance of doubt, is subject to the application of the Net Cash Proceeds in Section 8.12(a), in an amount in any fiscal year of the Borrower not greater than the Maximum Annual Payment Amount (less any portion of the Maximum Annual Payment Amount utilized to make Investments pursuant to Section 8.02(o) or to prepay or otherwise satisfy Indebtedness pursuant to Section 8.11(a)(iv2.9(a)(iv)(B)).

Restricted Payments. Declare or makeLessee shall not and shall not permit any of its Subsidiaries to, directly or indirectlyindirectly (i) declare or pay any dividend or make any distribution on account of Lessee's or any Subsidiary's Equity Interests (other than (x) dividends or distributions payable in Equity Interests (other than Disqualified Interests) of Lessee, (y) dividends or distributions payable to Lessee or a Wholly-Owned Subsidiary of Lessee that is a Guarantor or (z) distributions or dividends payable pro rata to all holders of Capital Interests of any such Subsidiary); (ii) purchase, redeem, call or otherwise acquire or retire for value any Equity Interests of Lessee or any Subsidiary or other Affiliate of Lessee (other than, subject to compliance with Section 5.37, any such Equity Interests owned by a Wholly-Owned Subsidiary of Lessee that is a Guarantor); (iii) make any investment other than a Permitted Lessee Investment; or (iv) prepay, purchase, redeem, retire, defease or refinance the 1998 Fixed Rate Senior Notes (all payments and other actions set forth in clauses (i) through (iv) above being collectively referred to as "Restricted Payments"), except to the extent that, at the time of such Restricted Payment, or incur any obligation : (contingent or otherwisea) to do so, except that, in each case (except Section 8.06(a)) so long as no Lease Default or Lease Event of Default shall have occurred and be continuing (or would occur as a consequence thereof and each of the representations and warranties of Lessee set forth herein is true on and as of the date of such Restricted Payment both before and after the making of such Restricted Payment): (a) each Restricted Subsidiary may make Restricted Payments to the Borrower and to wholly-owned Restricted Subsidiaries (giving effect thereto; and, in the case of a Restricted Payment by a non-wholly-owned Restricted Subsidiary, to the Borrower and any Restricted Subsidiary and to each other owner of capital stock or other equity interests of such Restricted Subsidiary on a pro rata basis based on their relative ownership interests); (b) the Borrower and each Subsidiary may declare and make dividend payments or other distributions payable solely in Fixed Charge Coverage Ratio of Lessee for Lessee's most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the common stock or other common Equity Interests of such Person; (c) the Borrower and each Subsidiary may purchase, redeem or otherwise acquire shares of its common stock or other common Equity Interests or warrants or options to acquire any such shares in connection with customary employee or management agreements, plans or arrangements; (d) the Borrower shall be permitted to make Restricted Payments in the form of cash dividends to the shareholders of the Borrower in an aggregate amount in any fiscal year not to exceed $10,000,000; provided that, any amount of cash dividends permitted to be paid by this clause (d) but not paid in respect of any fiscal year commencing date on or after October 1, 2006, may be carried forward and paid in any subsequent fiscal year; (e) the Borrower and each Subsidiary shall be permitted to make other Restricted Payments in the form of cash dividends, distributions, purchases, redemptions or other acquisitions of or with respect to shares of its common stock or other common Equity Interests either (i) if at the time of making which such Restricted Payment the Consolidated Leverage Ratio (is made, calculated on a pro forma basis giving effect to as if such Restricted Payment had been made at the beginning of such four-quarter period, would have been more than 2.25 to 1; and (c) such Restricted Payment (the amount of any such payment, if other than cash, to be determined by the Board of Directors, whose determination shall be conclusive and evidenced by a resolution in an officer's certificate signed by a Responsible Officer and delivered to Agent), together with the aggregate of all other Restricted Payments (other than any Indebtedness incurred Restricted Payments permitted by the provisions of clause (ii) of the penultimate paragraph of this Section 5.28) made by Lessee and its Subsidiaries in connection therewith and the fiscal quarter during which such Restricted Payment is made shall not exceed an amount equal to (x) Available Cash of Lessee for the immediately preceding fiscal quarter plus (y) the lesser of (i) the amount of any other relevant factor, all in accordance with Sections 1.04(c) and (d)) is not greater than 3.50 to 1.00, on an unlimited basis, Available Cash of Lessee during the first 45 days of such fiscal quarter and (ii) if at the time excess of making the aggregate amount of Credit Agreement Loans that Lessee could have borrowed over the actual amount of Credit Agreement Loans outstanding, in each case as of the last day of the immediately preceding fiscal quarter; and (d) such Restricted Payment (other than (x) Restricted Payments described in clause (i) of the first paragraph of this Section 5.28 made during the fiscal quarter ending January 31, 1997 that do not exceed $26,000,000 in the aggregate or (y) any Restricted Payments described in clauses (iii) or (iv) of the first paragraph of this Section 5.28) the amount of which, if made other than with cash, to be determined in accordance with clause (c) of this Section 5.28 shall not exceed an amount equal to (1) Consolidated Leverage Ratio Cash Flow of Lessee and its Subsidiaries for the period from and after October 31, 1996 through and including the last day of the fiscal quarter ending immediately preceding the date of the proposed Restricted Payment (calculated on a the "Determination Period"), minus (2) the sum of Consolidated Interest Expense of Lessee and its Subsidiaries for the Determination Period plus all capital expenditures (other than Growth-Related Capital Expenditures and net of capital asset sales in the ordinary course of business) made by Lessee and its Subsidiaries during the Determination Period plus the aggregate of all other Restricted Payments (other than (x) Restricted Payments described in clause (i) of the first paragraph of this Section 5.28 made during the fiscal quarter ending January 31, 1997 that do not exceed $26,000,000 in the aggregate or (y) any Restricted Payments described in clauses (iii) or (iv) of the first paragraph of this Section 5.28) made by Lessee and its Subsidiaries during the period from and after October 31, 1996 through and including the date of the proposed Restricted Payment, plus (3) $30,000,000, plus (4) the excess, if any, of consolidated working capital of Lessee and its Subsidiaries at July 31, 1996 over consolidated working capital of Lessee and its Subsidiaries at the end of the fiscal year immediately preceding the date of the proposed Restricted Payment, minus (5) the excess, if any, of consolidated working capital of Lessee and its Subsidiaries at the end of the fiscal year immediately preceding the date of the proposed Restricted Payment over consolidated working capital of Lessee and its Subsidiaries at July 31, 1996. For purposes of this subsection 5.28(d), the calculation of Consolidated Cash Flow shall give pro forma basis giving effect to Acquisitions (including all mergers and consolidations), Asset Sales and other dispositions and discontinuances of business or assets that have been made by such Person or any of its Subsidiaries during the reference period or subsequent to such reference period and on or prior to the date of calculation of Consolidated Cash Flow assuming that all such Acquisitions, Asset Sales and other dispositions and discontinuances of businesses or assets had occurred on the first day of the reference period. The foregoing provisions will not prohibit (i) the payment of any distribution within 60 days after the date on which Lessee becomes committed to make such distribution, if at said date of commitment such payment would have complied with the provisions of this Agreement; and (ii) the redemption, repurchase, retirement or other acquisition of any Equity Interests of Lessee in exchange for, or out of the proceeds of, the substantially concurrent sale (other than to a Subsidiary of Lessee) of other Equity Interests of Lessee (other than any Disqualified Interests). Not later than the date of making any Restricted Payment, the General Partner shall deliver to Agent an officer's certificate signed by a Responsible Officer stating that such Restricted Payment is permitted and any Indebtedness incurred in connection therewith and any other relevant factorsetting forth the basis upon which the calculations required by this Section 5.28 were computed, all in accordance with Sections 1.04(c) and (d)) is greater than 3.50 to 1.00 but less than the maximum permitted level for the most recently ended fiscal quarter set forth in Section 8.12(a), in an amount in any fiscal year of the Borrower not greater than the Maximum Annual Payment Amount (less any portion of the Maximum Annual Payment Amount utilized to make Investments pursuant to Section 8.02(o) or to prepay or otherwise satisfy Indebtedness pursuant to Section 8.11(a)(iv))which calculations may be based upon Lessee's latest available financial statements.

Restricted Payments. Declare The Borrower shall not, and shall not permit any of its Material Subsidiaries to, declare, pay or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that, in each case : (except Section 8.06(a)a) so long as no Default or Event of Default shall have occurred is continuing or would be caused thereby and be continuing (both before and after the making of such Restricted Payment): (a) each Restricted Subsidiary may make Restricted Payments Net Leverage Ratio as at the most recently completed Rolling Period was equal to or less than 3.50:1.00, the Borrower may pay dividends in respect of its Equity Securities and may purchase its Equity Securities pursuant to wholly-owned Restricted Subsidiaries (and, any normal course issuer bid or restricted share unit plan effected in the case of a Restricted Payment by a non-wholly-owned Restricted Subsidiary, to the Borrower and any Restricted Subsidiary and to each other owner of capital stock or other equity interests of such Restricted Subsidiary on a pro rata basis based on their relative ownership interests)accordance with applicable Laws; (b) the Borrower and each a Subsidiary Guarantor may declare and pay dividends or make dividend payments a return of capital with respect to its Equity Securities, in each case to any other Credit Party or other distributions payable solely a Restricted Intermediary Shareholder, provided that (except in the common stock case of any payment of cash dividends by a Subsidiary Guarantor to another Credit Party or a Restricted Intermediary Shareholder) the Administrative Agent shall have received such confirmations, supplements, amendments and other common Equity Interests documents, instruments or opinions, and the Credit Parties shall have taken such other actions, as may be required under the Security Documents or as may be requested by the Administrative Agent, acting reasonably, in order to confirm the continued validity and perfection of the Liens of the Administrative Agent in the Collateral pursuant to the Security Documents following the payment of such Persondividend or such return of capital; (c) any Wholly-Owned Subsidiary that is not a Subsidiary Guarantor may make a return of capital with respect to its Equity Securities to the Borrower and each or any other Wholly-Owned Subsidiary may purchase, redeem or otherwise acquire shares of its common stock or other common Equity Interests or warrants or options to acquire any such shares in connection with customary employee or management agreements, plans or arrangementsthe Borrower; (d) any Wholly-Owned Subsidiary that is not a Subsidiary Guarantor may pay dividends with respect to its Equity Securities to the Borrower shall be permitted to make Restricted Payments in the form of cash dividends to the shareholders or any other Wholly-Owned Subsidiary of the Borrower in an aggregate amount in any fiscal year not to exceed $10,000,000; provided that, any amount of cash dividends permitted to be paid by this clause (d) but not paid in respect of any fiscal year commencing on or after October 1, 2006, may be carried forward and paid in any subsequent fiscal yearBorrower; (e) any Material Subsidiary that is not a Wholly-Owned Subsidiary may make a return of capital to its shareholders, members or partners generally, so long as the Borrower or its respective Subsidiary which owns the Equity Securities in the Subsidiary making such return of capital receives, or is entitled to receive, at least its proportionate share thereof (based upon its relative holding of the Equity Securities in the Subsidiary in respect of which such return of capital is being made and taking into account the relative preferences, if any, of the various classes of Equity Securities of such Subsidiary); (f) any Material Subsidiary that is not a Wholly-Owned Subsidiary may pay dividends to its shareholders, members or partners generally, so long as the Borrower or its respective Subsidiary which owns the Equity Securities in the Subsidiary paying such dividends receives, or is entitled to receive, at least its proportionate share thereof (based upon its relative holding of the Equity Securities in the Subsidiary paying such dividends and taking into account the relative preferences, if any, of the various classes of Equity Securities of such Subsidiary); (g) the Borrower and each Subsidiary shall be permitted its Material Subsidiaries may make payments pursuant to make other Restricted Payments and in the form of cash dividendsaccordance with stock option plans, distributions, purchases, redemptions profit sharing plans or other acquisitions of benefit plans for its management or with respect employees; (h) the Borrower may pay reasonable and customary fees and expenses to shares of its common stock or other common Equity Interests either independent directors; (i) if at the time a Subsidiary Guarantor may redeem any of making such its Equity Securities held by any other Credit Party or a Restricted Payment the Consolidated Leverage Ratio (calculated on a pro forma basis Intermediary Shareholder provided that after giving effect to such Restricted Payment and any Indebtedness incurred in connection therewith and any other relevant factorredemption, the Borrower continues to own, directly or indirectly, all in accordance with Sections 1.04(c) of the remaining Equity Securities of such Subsidiary Guarantor and (d)) is not greater than 3.50 to 1.00that the Administrative Agent shall have received such confirmations, on an unlimited basissupplements, amendments and other documents, instruments or opinions, and (ii) if at the time of making Credit Parties shall have taken such Restricted Payment other actions, as may be required under the Consolidated Leverage Ratio (calculated on a pro forma basis giving effect to such Restricted Payment and any Indebtedness incurred in connection therewith and any other relevant factorSecurity Documents or as may be requested by the Administrative Agent, all in accordance with Sections 1.04(c) and (d)) is greater than 3.50 to 1.00 but less than the maximum permitted level for the most recently ended fiscal quarter set forth in Section 8.12(a)acting reasonably, in an amount in any fiscal year order to confirm the continued validity and perfection of the Borrower not greater than the Maximum Annual Payment Amount (less any portion Liens of the Maximum Annual Payment Amount utilized Administrative Agent in the Collateral pursuant to the Security Documents following such redemption; and (j) the Borrower or any Material Subsidiary may make Investments payments of principal of and interest on Indebtedness permitted pursuant to Section 8.02(o) or to prepay or otherwise satisfy Indebtedness pursuant to Section 8.11(a)(iv)6.1(1)(d).

Restricted Payments. Declare The Borrower will not, and will not permit any of its Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that, in each case (except Section 8.06(a)) so long as no Default or Event of Default shall have occurred and be continuing (both before and after the making of such Restricted Payment): (a) each Restricted Subsidiary of the Borrower and its Subsidiaries may declare and pay dividends with respect to its Capital Stock payable solely in additional shares of the same class of Capital Stock, (b) Subsidiaries may declare and pay dividends ratably with respect to their Capital Stock and may make other Restricted Payments to the Borrower and to wholly-owned Restricted Subsidiaries (and, in the case of a Restricted Payment by a non-wholly-owned Restricted or any other Subsidiary, to the Borrower and any Restricted Subsidiary and to each other owner of capital stock or other equity interests of such Restricted Subsidiary on a pro rata basis based on their relative ownership interests); (b) the Borrower and each Subsidiary may declare and make dividend payments or other distributions payable solely in the common stock or other common Equity Interests of such Person; (c) the Borrower may make Restricted Payments pursuant to and each Subsidiary may purchase, redeem in accordance with stock option or otherwise acquire shares of its common stock rights plans or other common Equity Interests benefit plans for management, employees, directors or warrants or options to acquire any such shares in connection with customary employee or management agreementsconsultants of the Borrower and its Subsidiaries, plans or arrangements; (d) the Borrower shall be permitted to make Restricted Payments in may declare and pay dividends on the form of cash dividends to the shareholders common stock of the Borrower made in an aggregate amount in any fiscal year the ordinary course of business at a rate per share not to exceed the rate most recently utilized prior to the Amendment Effective Date so long as, at the time of declaration of such dividend, (i) no Event of Default shall be in existence and (ii) either (A) the Borrower has Borrower Debt Ratings of BBB or better from S&P and Baa2 or better from M▇▇▇▇’▇, in each case on stable watch or the equivalent or (B) Consolidated Operating Income shall have equaled at least $10,000,000; provided that1,800,000,000 for the most recent period of four consecutive fiscal quarters for which the relevant financial information is available (as certified by the Borrower to the Administrative Agent), any amount of cash dividends permitted to be paid by this clause (d) but not paid in respect of any fiscal year commencing on or after October 1, 2006, may be carried forward and paid in any subsequent fiscal year; (e) the Borrower may pay cash dividends on preferred Capital Stock of the Borrower to the extent provided to be made in cash by the terms thereof so long as, before such payment and each Subsidiary after giving effect thereto, no Event of Default shall be permitted to make other Restricted Payments in existence, (f) the issuer of the Trust Preferred Securities may distribute the 7.75% Convertible Subordinated Debentures as described in the form Trust Preferred Offering Memorandum and (g) in connection with any stock split, reverse stock split or the conversion of any Trust Preferred Securities or Convertible Debentures into common stock of the Borrower pursuant to the terms thereof, the Borrower may pay cash dividends, distributions, purchases, redemptions or other acquisitions instead of or with respect to shares issuing “fractional shares” of its common stock or other common Equity Interests either (i) if at the time of making such Restricted Payment the Consolidated Leverage Ratio (calculated on a pro forma basis giving effect to such Restricted Payment and any Indebtedness incurred in connection therewith and any other relevant factor, all in accordance with Sections 1.04(c) and (d)) is not greater than 3.50 to 1.00, on an unlimited basis, and (ii) if at the time of making such Restricted Payment the Consolidated Leverage Ratio (calculated on a pro forma basis giving effect to such Restricted Payment and any Indebtedness incurred in connection therewith and any other relevant factor, all in accordance with Sections 1.04(c) and (d)) is greater than 3.50 to 1.00 but less than the maximum permitted level for the most recently ended fiscal quarter set forth in Section 8.12(a), in an amount in any fiscal year of the Borrower not greater than the Maximum Annual Payment Amount (less any portion of the Maximum Annual Payment Amount utilized to make Investments pursuant to Section 8.02(o) or to prepay or otherwise satisfy Indebtedness pursuant to Section 8.11(a)(iv))stock.

Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that, in each case (except Section 8.06(a)) so long as no Default or Event of Default shall have occurred and be continuing (both before and after the making of such Restricted Payment):: (a) each Restricted Subsidiary of a Loan Party may make Restricted Payments to any Loan Party; (b) each Restricted Subsidiary of a Loan Party which is not a Loan Party may make Restricted Payments to another Restricted Subsidiary that is not a Loan Party; (c) Loan Parties and their Restricted Subsidiaries may make Restricted Payments permitted by Sections 7.02 or 7.04; (d) the ▇▇▇▇▇ Group may, and may make a Restricted Payment to, repurchase Equity Interests of the Parent or ▇▇▇▇▇ Investor held by a current or former employee, officer or director of any of the ▇▇▇▇▇ Group upon the termination, retirement or death of any such employee, officer or director, provided that, as to any such repurchase, each of the following conditions is satisfied: (i) as of the date of the payment for such repurchase and after giving effect thereto, no Dominion Trigger Event shall exist or have occurred and be continuing, (ii) such repurchase shall be paid with funds legally available therefor, and (iii) the aggregate amount of all payments for such repurchases in any Fiscal Year shall not exceed $15,000,000 plus amounts of such repurchases permitted to have been made in prior Fiscal Years but not made, up to a maximum carry forward amount in any Fiscal Year of $10,000,000; plus the Net Proceeds received by the Parent or any of its Subsidiaries from the sale of Equity Interests (other than Disqualified Stock) of the Parent or any direct or indirect parent of the Parent (to the extent contributed to the Parent) to members of management, directors or consultants of the Parent or any of its Subsidiaries, or any direct or indirect parent of the Parent that occurs after the Second Restatement Effective Date other than proceeds of a Cure Amount; plus the Net Proceeds of key man life insurance policies received by the Parent or any other direct or indirect parent of the Parent (in each case, to the extent contributed to the Parent) and their Subsidiaries after the Second Restatement Effective Date; less the amount of any Restricted Payments previously made with the cash proceeds described in clauses (i) and (ii) of this Section 7.06(d); (provided that cancellation of Indebtedness owing to the Parent or any Restricted Subsidiary from members of management, directors, employees or consultants of the Parent, or any direct or indirect parent company or Restricted Subsidiaries in connection with a repurchase of Equity Interests pursuant to this clause (d) of the Parent or any direct or indirect parent company will not be deemed to constitute a Restricted Payment); (e) if the Payment Conditions are satisfied, the ▇▇▇▇▇ Group may make Restricted Payments to the Borrower and to wholly-owned Restricted Subsidiaries (and, in equity holders of the case of a Restricted Payment by a non-wholly-owned Restricted Subsidiary, to the Borrower and any Restricted Subsidiary and to each other owner of capital stock or other equity interests of such Restricted Subsidiary on a pro rata basis based on their relative ownership interests)Parent; (bf) the Borrower Parent and each Subsidiary its Subsidiaries may declare and make dividend payments or other distributions Restricted Payments payable (i) solely in the common stock or other common Equity Interests (other than Disqualified Stock not otherwise permitted by Section 7.03) of such Person, or (ii) with the proceeds of a substantially concurrent contribution to, or the issuance or other sale of, Equity Interests (other than Disqualified Stock) of the Parent or any direct or indirect parent thereof (to the extent contributed to a Borrower); (cg) the Borrower Parent and each Subsidiary its Restricted Subsidiaries may purchase, redeem or otherwise acquire shares make repurchases of its common stock or other common Equity Interests in the Parent or in any other direct or indirect parent thereof or any Restricted Subsidiary of the Parent deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or options to acquire any such shares in connection with customary employee or management agreements, plans or arrangementswarrants; (dh) Restricted Payments made with the proceeds of substantially concurrent Excluded Contributions; (i) the Borrower shall be permitted distribution, as a dividend or otherwise, of shares of Equity Interests of, or Indebtedness owed to make the Parent or a Restricted Subsidiary of the Parent by, Unrestricted Subsidiaries or Excluded Property; (j) the Parent and its Restricted Subsidiaries may pay customary and reasonable out of pocket fees, commissions, expenses and other amounts, in each case, to the extent payable by the Parent under the Parent Stockholders’ Agreement as in effect as of January 20, 2017; (k) Restricted Payments in the form of cash dividends to the shareholders of the Borrower in an aggregate amount in any fiscal year four consecutive Fiscal Quarter period not to exceed $10,000,00050,000,000; provided provided, that, to the extent Consolidated EBITDA at the end of any Measurement Period equals or exceeds $700,000,000, such amount shall increase to $100,000,000 for so long as Consolidated EBITDA continues to equal or exceed $700,000,000 at the end of cash dividends permitted to be paid by this clause any subsequent Measurement Period; and (dl) but not paid Restricted Payments within 60 days after the date of the declaration or agreement in respect of any fiscal year commencing on or after October 1thereof, 2006if, may be carried forward and paid in any subsequent fiscal year; (e) the Borrower and each Subsidiary shall be permitted to make other Restricted Payments in the form of cash dividends, distributions, purchases, redemptions or other acquisitions of or with respect to shares of its common stock or other common Equity Interests either (i) if at the time of making such declaration or agreement, such Restricted Payment the Consolidated Leverage Ratio (calculated on a pro forma basis giving effect to such Restricted Payment and any Indebtedness incurred in connection therewith and any other relevant factor, all in accordance with Sections 1.04(c) and (d)) is not greater than 3.50 to 1.00, on an unlimited basis, and (ii) if at the time of making such Restricted Payment the Consolidated Leverage Ratio (calculated on a pro forma basis giving effect to such Restricted Payment and any Indebtedness incurred in connection therewith and any other relevant factor, all in accordance with Sections 1.04(c) and (d)) is greater than 3.50 to 1.00 but less than the maximum permitted level for the most recently ended fiscal quarter set forth in Section 8.12(a), in an amount in any fiscal year of the Borrower not greater than the Maximum Annual Payment Amount (less any portion of the Maximum Annual Payment Amount utilized to make Investments would have been permissible pursuant to Section 8.02(oany of clauses (a) or to prepay or otherwise satisfy Indebtedness pursuant to Section 8.11(a)(iv))through (k) above.

Restricted Payments. Declare or makeMake, directly or indirectly, any Restricted Payment, or incur any obligation (including contingent obligations to the extent the satisfaction of the contingencies is solely under the control of the Borrower or otherwiseany of its Subsidiaries) to do so, except that, in each case (except Section 8.06(a)) so long as no Default or Event of Default shall have occurred and be continuing (both before and after the making of such Restricted Payment):: (a) each Restricted Subsidiary Loan Party may declare and make Restricted Payments to the Borrower any other Loan Party, and each Subsidiary that is not a Loan Party may declare and make Restricted Payments to wholly-owned Restricted Subsidiaries (and, in the case of any other Subsidiary that is not a Restricted Payment by a non-wholly-owned Restricted Subsidiary, to the Borrower and any Restricted Subsidiary and to each other owner of capital stock or other equity interests of such Restricted Subsidiary on a pro rata basis based on their relative ownership interests)Loan Party; (b) the Borrower and each Subsidiary may declare and make dividend payments or other distributions Restricted Payments payable solely in the common stock or other common Equity Interests (other than Disqualified Equity Interests) of such Person; (c) the Borrower and each any Subsidiary may purchasemake cash dividends, redeem or otherwise acquire shares of its common stock distributions or other common Restricted Payments paid on the Equity Interests of the Borrower or warrants such Subsidiary; provided, for the purpose of this clause (c) that (x) no Default or options Event of Default has occurred and is continuing at the time such dividend, distribution or other Restricted Payment is declared or paid and (y) with respect to acquire any distributions by the Borrower, the Loan Parties shall be in compliance at such shares time on a Pro Forma Basis with the financial covenants set forth in connection with customary employee or management agreements, plans or arrangementsSection 8.11; (d) the Borrower shall be permitted to may make Restricted Payments in the form of cash dividends to the shareholders of the Borrower in an aggregate amount in any fiscal year not to exceed $10,000,000; provided that, any amount of cash dividends permitted to be paid by this clause (d) but not paid in respect of any fiscal year commencing on or after October 1, 2006, may be carried forward and paid in any subsequent fiscal yearPermitted Tax Distributions; (e) the Borrower and each Subsidiary shall be permitted to make other Restricted Payments in the form of cash dividends, distributions, purchases, redemptions or other acquisitions of or with respect to shares of its common stock or other common Equity Interests either (i) if at the (x) Wyoming may make a one-time of making such Restricted Payment the Consolidated Leverage Ratio to Wyoming Co. of $11,500,000 and (calculated on y) Wyoming Co. may make a pro forma basis giving effect to such Restricted Payment of all or a portion of the proceeds of such Wyoming Co. Dividend to its equityholders (which proceeds may subsequently be paid or transferred pursuant to Restricted Payments by such equityholders (and any Indebtedness incurred each successive holder thereabove) until a Restricted Payment of such proceeds are made to Persons who hold Equity Interests in connection therewith and any other relevant factorthe Borrower or Wyoming Co.) (collectively, all in accordance with Sections 1.04(c) and (dthe “Wyoming Co. Dividend”)) is not greater than 3.50 to 1.00, on an unlimited basis, and (ii) if at the (w) Wyoming may make a one-time of making such Restricted Payment to its equityholders of $91,500,000 on or before July 23, 2013, (x) the Consolidated Leverage Ratio (calculated on Borrower may make a pro forma basis giving effect to such Restricted Payment and any Indebtedness incurred in connection therewith and any other relevant factor, of all in accordance with Sections 1.04(c) or a portion of the proceeds of such Special Dividend to OCI Holdings and (dy) OCI Holdings may make a Restricted Payment of all or a portion of the proceeds of such Special Dividend to Chemical (which proceeds may subsequently be paid, distributed or transferred by Chemical to its direct and/or indirect equityholders) (collectively, the “Special Dividend”); and (f) is greater than 3.50 the Borrower may make a Restricted Payment of the proceeds from the IPO to 1.00 but less than the maximum permitted level for the most recently ended fiscal quarter set forth in Section 8.12(a), in an amount in any fiscal year holder of Equity Interests of the Borrower not greater than (which proceeds may subsequently be paid, distributed or transferred by such holder to its direct and/or indirect equityholders) in each case made within sixty (60) days after the Maximum Annual Payment Amount (less any portion date of the Maximum Annual Payment Amount utilized to make Investments pursuant to Section 8.02(o) or to prepay or otherwise satisfy Indebtedness pursuant to Section 8.11(a)(iv)IPO (collectively, the “IPO Distribution”).

Restricted Payments. Declare or The Borrower will not, nor will it permit any Subsidiary to, make, directly or indirectly, any Restricted Payment, except: (a) the Borrower may make Restricted Payments with respect to its Equity Interests or incur any obligation (contingent or otherwise) with respect to do so, except thatEquity Equivalents, in each case case, payable solely in Equity Interests or Equity Equivalents (except other than Disqualified Equity Interests); (b) the Borrower and its Subsidiaries may make Restricted Payments not exceeding $10,000,000 during any fiscal year pursuant to and in accordance with stock option or stock ownership plans, employment agreements, incentive plans or other benefit plans approved by the Borrower’s Board of Directors for management, directors, former directors, employees and former employees of the Borrower and the Subsidiaries; (c) the Borrower and its Subsidiaries may make Restricted Payments; provided that (x) on a Pro Forma Basis the Leverage Ratio as of the last day of the Borrower’s most recently ended fiscal quarter for which financial statements have been delivered pursuant to paragraph (a) or (b) of Section 8.06(a)5.01 would be equal to or less than 3.0 to 1.0 and (y) so long as at the time of any such payment, no Default or Event of Default shall have occurred and be continuing (both before and after the making of such Restricted Payment): (a) each Restricted Subsidiary may make Restricted Payments to the Borrower and to wholly-owned Restricted Subsidiaries (and, in the case of a Restricted Payment by a non-wholly-owned Restricted Subsidiary, to the Borrower and any Restricted Subsidiary and to each other owner of capital stock or other equity interests of such Restricted Subsidiary on a pro rata basis based on their relative ownership interests); (b) the Borrower and each Subsidiary may declare and make dividend payments or other distributions payable solely in the common stock or other common Equity Interests of such Person; (c) the Borrower and each Subsidiary may purchase, redeem or otherwise acquire shares of its common stock or other common Equity Interests or warrants or options to acquire any such shares in connection with customary employee or management agreements, plans or arrangementswould result therefrom; (d) the Borrower shall be permitted to and its Subsidiaries may make additional Restricted Payments in the form of cash dividends to the shareholders of the Borrower not otherwise permitted by this Section 6.06 in an aggregate amount in any fiscal year not to exceed exceeding $10,000,000; provided that, any amount of cash dividends permitted to be paid by this clause (d) but not paid in respect of any fiscal year commencing on or after October 1, 2006, may be carried forward and paid in any subsequent fiscal year150,000,000; (e) the Borrower and each Subsidiary shall be permitted to make other Restricted Payments in the form of cash dividendsits Subsidiaries may redeem, distributions, purchases, redemptions repurchase or other acquisitions of or with respect to shares of its common stock or other common otherwise acquire Qualified Equity Interests either or options in exchange for (ior out of the proceeds of a substantially concurrent offering of) if at the time of making such Restricted Payment the Consolidated Leverage Ratio (calculated on a pro forma basis giving effect to such Restricted Payment and any Indebtedness incurred in connection therewith and any other relevant factor, all in accordance with Sections 1.04(c) and (d)) is not greater than 3.50 to 1.00, on an unlimited basis, and (ii) if at the time of making such Restricted Payment the Consolidated Leverage Ratio (calculated on a pro forma basis giving effect to such Restricted Payment and any Indebtedness incurred in connection therewith and any other relevant factor, all in accordance with Sections 1.04(c) and (d)) is greater than 3.50 to 1.00 but less than the maximum permitted level for the most recently ended fiscal quarter set forth in Section 8.12(a), in an amount in any fiscal year Qualified Equity Interests of the Borrower not greater than the Maximum Annual Payment Amount (less any portion or newly issued options to acquire Equity Interests of the Maximum Annual Payment Amount utilized to make Investments pursuant to Section 8.02(oBorrower; (f) [reserved]; (g) the Borrower or to prepay any Subsidiaries may redeem, repurchase or otherwise satisfy Indebtedness pursuant acquire Qualified Equity Interests within 180 days of any Acquisition which was funded in whole or in part through the issuance of Qualified Equity Interests to Section 8.11(a)(iv))the sellers of the business acquired in such Acquisition so long as the amount expended does not exceed the current market value (as determined in good faith by the Borrower) of the Qualified Equity Interests issued to such sellers in such Acquisition; and (h) the Borrower may make ordinary cash dividends on any Equity Interests of the Borrower.

Restricted Payments. Declare Pay or make, directly or indirectly, any Restricted Payment, except: (a) the Borrower may make Restricted Payments payable solely in Qualified Stock of the Borrower; (b) any Restricted Subsidiary of the Borrower may declare and pay cash dividends to the Borrower or incur to any obligation Credit Party of which it is a subsidiary; (contingent c) as required by the terms of contracts of the Borrower or otherwiseany Restricted Subsidiary that are in effect on the Closing Date and set forth in Schedule 6.5(c) and Restricted Payments made pursuant to do sothe Transactions; (d) the Borrower may repurchase Equity Interests of the Borrower upon exercise of options or warrants if such Equity Interests represents all or a portion of the exercise price of such options or warrants and/or amounts on account of required withholding taxes and brokerage fees with respect to such options as part of a “cashless” exercise; (e) dividend adjustments and repurchases of Equity Interests deemed to occur upon the exercise of stock options, except thatwarrants or other convertible or exchangeable securities or the vesting of restricted stock units or deferred stock units (including any management equity plan or stock option plan or any other management or employee benefit plan or agreement, in each case or any stock subscription or shareholder agreement); (except Section 8.06(a)f) so long as no Event of Default exists or would result therefrom, payments for the repurchase of Equity Interests of the Borrower, MIPCo or any Parent Entity (or any payments to a Parent Entity for the purposes of permitting any such repurchase) held (i), in the case of the Borrower, by any present or former employee, director, member of management, officer, manager or consultant (or any Affiliate, family member thereof, estate or beneficiary under their estates) and (ii), in the case of MIPCo, directly by the MIP Shareholders, shall not exceed in the aggregate $10,000,000 in a Fiscal Year; provided, that any unused amounts in any Fiscal Year may be carried forward; provided, further, that in no event shall amounts paid pursuant to this clause 6.5(f) exceed $20,000,000 in any Fiscal Year; (g) from and after January 1, 2019, the Borrower may make Restricted Payments with any portion of the Cumulative Credit amount if, at the time such Restricted Payment is made, no Event of Default shall have occurred and be continuing (both before or would result therefrom and after the making of such Restricted Payment): (a) each Restricted Subsidiary may make Restricted Payments to the Borrower and to wholly-owned Restricted Subsidiaries (and, in the case of a Restricted Payment by a non-wholly-owned Restricted Subsidiary, to the Borrower and any Restricted Subsidiary and to each other owner of capital stock or other equity interests of such Restricted Subsidiary on a pro rata basis based on their relative ownership interests); (b) the Borrower and each Subsidiary may declare and make dividend payments or other distributions payable solely in the common stock or other common Equity Interests of such Person; (c) the Borrower and each Subsidiary may purchase, redeem or otherwise acquire shares of its common stock or other common Equity Interests or warrants or options to acquire any such shares in connection with customary employee or management agreements, plans or arrangements; (d) the Borrower shall be permitted to make Restricted Payments in the form of cash dividends to the shareholders of the Borrower in an aggregate amount in any fiscal year not to exceed $10,000,000; provided that, any amount of cash dividends permitted to be paid by this clause (d) but not paid in respect of any fiscal year commencing on or after October 1, 2006, may be carried forward and paid in any subsequent fiscal year; (e) the Borrower and each Subsidiary shall be permitted to make other Restricted Payments in the form of cash dividends, distributions, purchases, redemptions or other acquisitions of or with respect to shares of its common stock or other common Equity Interests either (i) if at the time of making such Restricted Payment the Consolidated Leverage Ratio (calculated on a pro forma basis giving effect to such Restricted Payment and any Indebtedness incurred in connection therewith and any other relevant factorPayments on a Pro Forma Basis, all in accordance with Sections 1.04(c(i) and (d)) is the Senior Secured Net Leverage Ratio shall not greater than 3.50 to 1.00, on an unlimited basis, exceed 4.00:1.00 and (ii) if at the time Total Net Leverage Ratio shall not exceed 4.50:1.00; and (h) the Borrower may redeem or purchase for cancellation for nominal consideration any of making its Class A special shares, Class B special shares or Class C special shares. For purposes of determining compliance with this Section 6.5 and subject to the immediately following proviso, (A) Restricted Payments need not be permitted solely by reference to one category of permitted Restricted Payments described in Section 6.5(a) through (h) but may be permitted in part under any combination thereof and (B) in the event that a Restricted Payment (or any portion thereof) meets the criteria of one or more of the categories of permitted Restricted Payments described in Sections 6.5(a) through (h), the Borrower shall, in its sole discretion, classify or reclassify, or later divide, classify or reclassify, such Restricted Payment (or any portion thereof) in any manner that complies with this Section 6.5 and will only be required to include the Consolidated Leverage Ratio (calculated on a pro forma basis giving effect to amount and type of such Restricted Payment and (or any Indebtedness incurred portion thereof) in connection therewith and any other relevant factor, all in accordance with Sections 1.04(c) and (d)) is greater than 3.50 to 1.00 but less than the maximum permitted level for the most recently ended fiscal quarter set forth in Section 8.12(a), in an amount in any fiscal year one of the Borrower not greater than the Maximum Annual above clauses and such Restricted Payment Amount (less shall be treated as having been made or existing pursuant to only one of such clauses; provided, however, that no such reclassification shall be permitted with respect to any portion of the Maximum Annual Restricted Payment Amount utilized to make Investments made pursuant to Section 8.02(o) or to prepay or otherwise satisfy Indebtedness pursuant to Section 8.11(a)(iv)6.5(g).

Restricted Payments. Declare The Borrower will not, nor will it permit any of its Restricted Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that (a) any Restricted Subsidiary that is a real estate investment trust may purchase or redeem its Equity Interests for cash in an aggregate amount not exceeding $200,000 after the date hereof; (b) the Borrower may declare and pay dividends with respect to its capital stock payable solely in additional shares of its common stock, and may make Restricted Payments pursuant to and in each case accordance with stock option plans or other benefit plans established in the ordinary course of business for directors, management, employees or consultants of the Borrower and its Subsidiaries; (except Section 8.06(a)c) so long as if no Default or Event of Default shall have occurred and be continuing (both before or would result therefrom, the Borrower may declare, pay and after the making of such Restricted Payment): (a) each Restricted Subsidiary may make Restricted Payments to in an aggregate amount after the Borrower and to wholly-owned Restricted Subsidiaries (date hereof not exceeding $50,000,000; and, in the case of a Restricted Payment by a non-wholly-owned Restricted Subsidiary, to the Borrower and any Restricted Subsidiary and to each other owner of capital stock or other equity interests of such Restricted Subsidiary on a pro rata basis based on their relative ownership interests); (b) the Borrower and each Subsidiary may declare and make dividend payments or other distributions payable solely in the common stock or other common Equity Interests of such Person; (c) the Borrower and each Subsidiary may purchase, redeem or otherwise acquire shares of its common stock or other common Equity Interests or warrants or options to acquire any such shares in connection with customary employee or management agreements, plans or arrangements; (d) the Borrower shall be permitted to may declare and make Restricted Payments in the form of cash dividends cash, subject to the shareholders satisfaction of each of the Borrower in an following conditions on the date of each such Restricted Payment and after giving effect thereto: (i) no Default shall have occurred and be continuing; (ii) the aggregate amount in any fiscal year not to exceed $10,000,000; provided that, any amount of cash dividends permitted to be paid by Restricted Payments made since the Effective Date (including such Restricted Payment) under this clause (d) but shall not paid in respect exceed an amount equal to the aggregate of any fiscal year commencing on or after October 1, 2006, may be carried forward and paid in any subsequent fiscal year; (e) 50% of Net Income of the Borrower for the period from and each Subsidiary shall be permitted including January 4, 2010 through and including the last day of the fiscal quarter of Borrower most recently ended prior to make other Restricted Payments in the form date of cash dividends, distributions, purchases, redemptions or other acquisitions of or with respect to shares of its common stock or other common Equity Interests either (i) if at the time of making such Restricted Payment (treated for this purposes as a single accounting period) and the Consolidated aggregate amount of Net Available Proceeds from Equity Issuances not required to prepay Loans pursuant to Section 2.10 hereof and not used to make Permitted Acquisitions; and (iii) the Pro Forma Senior Secured Leverage Ratio (calculated on a pro forma basis giving effect to the date of such Restricted Payment and any Indebtedness incurred in connection therewith and any other relevant factor, all in accordance with Sections 1.04(c) and (d)) is shall not greater than 3.50 exceed 2.50 to 1.00, on an unlimited basis, and (ii) if at the time of making such Restricted Payment the Consolidated Leverage Ratio (calculated on a pro forma basis giving effect to such Restricted Payment and any Indebtedness incurred in connection therewith and any other relevant factor, all in accordance with Sections 1.04(c) and (d)) is greater than 3.50 to 1.00 but less than the maximum permitted level for the most recently ended fiscal quarter set forth in Section 8.12(a), in an amount in any fiscal year of the Borrower not greater than the Maximum Annual Payment Amount (less any portion of the Maximum Annual Payment Amount utilized to make Investments pursuant to Section 8.02(o) or to prepay or otherwise satisfy Indebtedness pursuant to Section 8.11(a)(iv)).

Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, or incur issue or sell any obligation (contingent or otherwise) to do soEquity Interests, except that, in each case (except Section 8.06(a)) so long as no Default or Event of Default shall have occurred and be continuing (both before and after the making of such Restricted Payment):except: (a) each Restricted Subsidiary may make Restricted Payments to the Borrower Borrower, the Subsidiary Guarantors and to wholly-owned any other Person that owns an Equity Interest in such Restricted Subsidiaries (andSubsidiary, provided that, in the case of any Restricted Subsidiary that is not a Restricted Payment by a non-wholly-owned Restricted Wholly Owned Subsidiary, such Restricted Payments are made to the holders of such Equity Interests ratably (or on a more favorable basis from the perspective of the Borrower and any Restricted Subsidiary and its Wholly-Owned Subsidiaries, taken as a whole) according to each other owner their respective holdings of capital stock or other equity interests the type of Equity Interest in respect of which such Restricted Subsidiary on a pro rata basis based on their relative ownership interests)Payment is being made; (b) the Borrower and each Restricted Subsidiary may declare and make dividend payments or other distributions payable solely in the common stock or stock, other common Equity Interests of such Person or Qualified Stock of such Person; (c) the Borrower may issue and sell any warrants or options with respect to its Qualified Stock pursuant to any executive compensation or stock option plan; (d) the Borrower may issue and sell its Equity Interests constituting Qualified Stock; DB1/ 88815292.10 (e) the Borrower and each Restricted Subsidiary may purchase, redeem or otherwise acquire Equity Interests issued by it with the proceeds received from the substantially concurrent issue of new shares of its common stock or other common Equity Interests or warrants or options to acquire any such shares in connection with customary employee or management agreements, plans or arrangementsQualified Stock; (d) the Borrower shall be permitted to make Restricted Payments in the form of cash dividends to the shareholders of the Borrower in an aggregate amount in any fiscal year not to exceed $10,000,000; provided that, any amount of cash dividends permitted to be paid by this clause (d) but not paid in respect of any fiscal year commencing on or after October 1, 2006, may be carried forward and paid in any subsequent fiscal year; (ef) the Borrower and each Restricted Subsidiary shall be may make Restricted Payments to shareholders of any Person (other than an Affiliate of the Borrower) acquired by merger pursuant to an Investment permitted under this Agreement, at the time of such Acquisition; (g) the Borrower and each of its Restricted Subsidiaries may (A) repurchase at the issue price Equity Interests held by former directors, officers, employees and consultants in an amount not to exceed $100,000 in any fiscal year; (B) pay withholding or similar Taxes payable by present or former directors, officers, employees or consultants in respect of their Equity Interests and (C) repurchase Equity Interests deemed to occur upon a cashless exercise of options or warrants; (h) the Borrower may make Restricted Payments to implement Capped Call Transactions and Convertible Bond Hedge Transactions in connection with the issuance of Convertible Bond Indebtedness, provided such Restricted Payments are made solely with the proceeds of such related Convertible Bond Indebtedness and any Warrant Transactions; (i) the Borrower may declare and make other Restricted Payments not otherwise permitted by this Section 7.06 (including, making Restricted Payments to exercise, settle, unwind or terminate any Convertible Bond Hedge Transaction, Capped Call Transaction or Warrant Transaction, as applicable, or honor any request in the form connection with any conversion of Convertible Bond Indebtedness and make cash dividendspayments in lieu of fractional shares in connection therewith), distributions, purchases, redemptions provided that (x) no Default shall exist or other acquisitions of or with respect to shares of its common stock or other common Equity Interests either would result therefrom and (iy) if at the time of making such Restricted Payment the Consolidated Leverage Ratio (calculated on a pro forma basis immediately after giving effect to such Restricted Payment and any Indebtedness incurred Payment, the Borrower shall be in connection therewith and any other relevant factorPro Forma Compliance, all in accordance with Sections 1.04(c) and (d)) is not greater than 3.50 to 1.00, on an unlimited basis, and (ii) if at the time of making such Restricted Payment provided that the Consolidated Leverage Ratio (calculated shall not exceed, on a pro forma basis giving effect Pro Forma Basis, 2.50 to such Restricted Payment 1.00; (j) the Borrower and any Indebtedness incurred Restricted Subsidiary may pay cash in lieu of fractional shares in connection therewith with any dividend, split or combination of its Equity Interests; and (k) the Borrower may make Restricted Payments, pursuant to and any other relevant factor, all in accordance with Sections 1.04(c) equity compensation plans or programs and (d)) is greater than 3.50 to 1.00 but less than the maximum permitted level other benefit and compensation plans, programs or agreements for the most recently ended fiscal quarter set forth in Section 8.12(a)directors, in an amount in any fiscal year officers, employees or advisors of the Borrower not greater than the Maximum Annual Payment Amount (less any portion of the Maximum Annual Payment Amount utilized to make Investments pursuant to Section 8.02(o) or to prepay or otherwise satisfy Indebtedness pursuant to Section 8.11(a)(iv))and its Subsidiaries.

Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, or issue or sell any Equity Interests or accept any capital contributions, except that, in each case (except Section 8.06(a)) so long as no Default or Event of Default shall have occurred and be continuing (both before and after the making of such Restricted Payment):: (a) each Restricted Subsidiary may make Restricted Payments to any Loan Party and any other Person that owns a direct Equity Interest in such Restricted Subsidiary, either (i) ratably according to their respective holdings of the Borrower and to wholly-owned Restricted Subsidiaries (and, type of Equity Interest in the case respect of a which such Restricted Payment by is being made or (ii) on a non-wholly-owned Restricted Subsidiary, pro rata basis either (A) where required by Organization Documents or agreements existing as of the Closing Date or (B) where the aggregate amount of all distributions to Persons other than the Borrower and any Company or a Restricted Subsidiary and to each other owner that are in excess of capital stock or other equity interests the pro rata share of such Restricted Subsidiary on a pro rata basis based on their relative ownership interests)Payments that would otherwise be owing to such Persons does not exceed $25,000,000 in the aggregate during the term of the Facilities, so long as no Default shall have occurred and be continuing at the time of any action described in this clause (a) or would result therefrom; (b) the Borrower Company and each Restricted Subsidiary may declare and make dividend payments or other distributions payable solely in the common stock or other common Equity Interests (other than Disqualified Stock) of such Person, so long as no Default shall have occurred and be continuing at the time of any action described in this clause (b) or would result therefrom; (c) the Borrower Company and each Restricted Subsidiary may purchase, redeem or otherwise acquire shares of its common stock or other common Equity Interests with the proceeds received from the substantially concurrent issue of new Equity Interests (other than Disqualified Stock), so long as no Default shall have occurred and be continuing at the time of any action described in this clause (c) or warrants or options to acquire any such shares in connection with customary employee or management agreements, plans or arrangementswould result therefrom; (d) the Borrower shall be permitted to each Restricted Subsidiary may declare and make Restricted Payments in the form of cash dividends to the shareholders of Company so that the Borrower in an aggregate amount in Company may pay any fiscal year not Taxes which are due and payable by or with respect to exceed $10,000,000; provided that, any amount of cash dividends permitted to be paid by this clause (d) but not paid in respect of any fiscal year commencing on or after October 1, 2006, may be carried forward and paid in any subsequent fiscal yearthe Restricted Subsidiaries; (e) the Borrower Company and each Subsidiary shall be permitted to its Restricted Subsidiaries may make other Restricted Payments in the form of cash dividends, distributions, purchases, redemptions or other acquisitions of or with respect to shares of its common stock or other common Equity Interests either so long as (i) if the aggregate amount of Restricted Payments made during the term of this Agreement pursuant to this clause (e) is not in excess of the Cumulative Available Amount that is Not Otherwise Applied, (ii) after giving pro forma effect thereto (including any incurrence and/or repayment of Indebtedness in connection therewith), the Consolidated Leverage Ratio is at least 0.50 less than the then applicable Consolidated Leverage Ratio pursuant to Section 7.11(b) as of the last day of the most recent fiscal quarter or year for which financial statements have been delivered pursuant to Section 6.01 (or, prior to the first delivery thereof, the financial statements described in Section 5.05(b)), (iii) both immediately before and after giving pro forma effect thereto, no Default shall have occurred and be continuing or would result therefrom, and (iv) no later than three Business Days (or such shorter period as agreed upon by the Administrative Agent) prior to such Restricted Payment, the Company shall have delivered to the Administrative Agent a certificate setting forth the calculations demonstrating, in reasonable detail, compliance with the foregoing clause (ii); (f) the Company and its Restricted Subsidiaries may make other Restricted Payments so long as no Default shall have occurred and be continuing at the time of making such Restricted Payment any action described below or would result therefrom and, after giving pro forma effect thereto (including any incurrence and/or repayment of Indebtedness in connection therewith), the Consolidated Leverage Ratio (calculated on a pro forma basis giving effect is less than or equal to such Restricted Payment and any Indebtedness incurred in connection therewith and any other relevant factor, all in accordance with Sections 1.04(c) and (d)) is not greater than 3.50 to 1.00, on an unlimited basis, and (ii) if at the time of making such Restricted Payment the Consolidated Leverage Ratio (calculated on a pro forma basis giving effect to such Restricted Payment and any Indebtedness incurred in connection therewith and any other relevant factor, all in accordance with Sections 1.04(c) and (d)) is greater than 3.50 3.00 to 1.00 but less than as of the maximum permitted level for last day of the most recently ended recent fiscal quarter set forth in Section 8.12(a), in an amount in any fiscal or year of the Borrower not greater than the Maximum Annual Payment Amount (less any portion of the Maximum Annual Payment Amount utilized to make Investments for which financial statements have been delivered pursuant to Section 8.02(o6.01 (or, prior to the first delivery thereof, the financial statements described in Section 5.05(b)); (g) a Restricted Subsidiary may issue Equity Interests to the extent constituting a Disposition permitted by Section 7.05; and (h) the Company may purchase Equity Interests of the Company and any warrants or other rights with respect to prepay or otherwise satisfy Indebtedness Equity Interests of the Company from its employees, officers and directors by net exercise, pursuant to Section 8.11(a)(iv))the terms of any employee stock option, restricted stock or incentive stock plan.

Restricted Payments. Declare Neither Holdings nor the Borrower will, nor will they permit any Restricted Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, except that (i) Holdings may declare and pay dividends with respect to its capital stock payable solely in additional shares of its capital stock, (ii) Restricted Subsidiaries may declare and pay dividends ratably with respect to their Equity Interests, (iii) Holdings may make Restricted Payments, not exceeding $15,000,000 during any fiscal year, pursuant to and in accordance with stock option plans or incur other benefit plans for management, directors, consultants or employees of Holdings, the Borrower and the Restricted Subsidiaries, including the redemption or purchase of capital stock of Holdings held by former directors, management, consultants or employees of Holdings, the Borrower or any obligation Restricted Subsidiary following termination of their employment, (contingent iv) the Borrower may pay dividends to Holdings at such times and in such amounts, not exceeding $7,500,000 during any fiscal year, as shall be necessary to permit Holdings to discharge its permitted liabilities, (v) Restricted Payments may be made in the form of capital stock issued by Holdings, (vi) each of Holdings and the Borrower may enter into, exercise its respective rights and perform its respective obligations under Permitted Call Spread Swap Agreements, (vii) Holdings and the Borrower may make deliveries of shares of its common stock upon conversion of Permitted Convertible Notes pursuant to the terms thereof, (viii) Holdings and the Borrower may make interest payments in respect of Indebtedness under Permitted Convertible Notes, (ix) any Receivables Entity may declare and pay dividends to Holdings or otherwiseany wholly-owned subsidiary thereof and (x) to do so, except that, in each case (except Section 8.06(a)) other Restricted Payments may be made so long as prior to making any such Restricted Payment, and after giving effect thereto (including on a pro forma basis), (A) no Default or Event of Default shall have occurred exist and be continuing (both before and after the making of such Restricted Payment): (a) each Restricted Subsidiary may make Restricted Payments to the Borrower and to wholly-owned Restricted Subsidiaries (and, in the case of a Restricted Payment by a non-wholly-owned Restricted Subsidiary, to the Borrower and any Restricted Subsidiary and to each other owner of capital stock or other equity interests of such Restricted Subsidiary on a pro rata basis based on their relative ownership interests); (bB) the Borrower and each Subsidiary may declare and make dividend payments or other distributions payable solely in the common stock or other common Equity Interests of such Person; (c) the Borrower and each Subsidiary may purchase, redeem or otherwise acquire shares of its common stock or other common Equity Interests or warrants or options to acquire any such shares in connection with customary employee or management agreements, plans or arrangements; (d) the Borrower shall be permitted to make Restricted Payments in the form of cash dividends to the shareholders of the Borrower in an aggregate amount in any fiscal year not to exceed $10,000,000; provided that, any amount of cash dividends permitted to be paid by this clause (d) but not paid in respect of any fiscal year commencing on or after October 1, 2006, may be carried forward and paid in any subsequent fiscal year; (e) the Borrower and each Subsidiary shall be permitted to make other Restricted Payments in the form of cash dividends, distributions, purchases, redemptions or other acquisitions of or with respect to shares of its common stock or other common Equity Interests either (i) if at the time of making such Restricted Payment the Consolidated Senior Leverage Ratio (calculated on a pro forma basis giving effect to such Restricted Payment and any Indebtedness incurred in connection therewith and any other relevant factor, all in accordance with Sections 1.04(c) and (d)) is does not greater than 3.50 exceed 2.75 to 1.00, on an unlimited basis, and (ii) if at the time of making such Restricted Payment the Consolidated Leverage Ratio (calculated on a pro forma basis giving effect to such Restricted Payment and any Indebtedness incurred in connection therewith and any other relevant factor, all in accordance with Sections 1.04(c) and (d)) is greater than 3.50 to 1.00 but less than the maximum permitted level for the most recently ended fiscal quarter set forth in Section 8.12(a), in an amount in any fiscal year of the Borrower not greater than the Maximum Annual Payment Amount (less any portion of the Maximum Annual Payment Amount utilized to make Investments pursuant to Section 8.02(o) or to prepay or otherwise satisfy Indebtedness pursuant to Section 8.11(a)(iv)).

Restricted Payments. Declare The Borrower will not, and will not permit any Subsidiary to, declare or make, directly or indirectly, make any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that: (i) each Subsidiary may declare and make Restricted Payments to any Person that owns an Equity Interest in such Subsidiary, ratably according to their respective holdings of such Equity Interests in respect of which such Restricted Payment is being made; (ii) the Borrower and each case Subsidiary may declare and make Restricted Payments payable solely in common Equity Interests of such Person; (except Section 8.06(a)iii) any Subsidiary may declare and make Restricted Payments to (x) the Borrower or (y) any other Subsidiary which is a direct or indirect parent company of such Subsidiary; (iv) the Borrower and each Subsidiary may purchase, redeem or otherwise acquire Equity Interests issued by it with the proceeds received from the substantially concurrent issue of new common Equity Interests if after giving effect to such Restricted Payment on a pro-forma basis no Default or Event of Default shall have occurred and be continuing at the time of the declaration of such Restricted Payment; (v) the Borrower may (and any Subsidiary may make Restricted Payments as shall be required for the Borrower to) make Restricted Payments to the Initial Borrower in an amount sufficient to allow (x) the Initial Borrower to pay fees, expenses and indemnities pursuant to the Management Agreement, so long as as, solely with respect to the payment of such fees, no Default or Event of Default shall have occurred and be continuing (both before it being understood that, for so long as any Default or Event of Default has occurred and after is continuing, such fees may continue to accrue and any such accrued fees may be paid upon any and all Defaults and Events of Default ceasing to exist), and (y) to pay general corporate operating and overhead costs and expenses (other than taxes) incurred by the making Initial Borrower in the ordinary course of such Restricted Payment): (a) each Restricted Subsidiary may make Restricted Payments business, to the extent attributable to the ownership or operation of the Borrower and to wholly-owned Restricted Subsidiaries (and, in the case of a Restricted Payment by a non-wholly-owned Restricted Subsidiary, to the Borrower and any Restricted Subsidiary and to each other owner of capital stock or other equity interests of such Restricted Subsidiary on a pro rata basis based on their relative ownership interests)its Subsidiaries; (bvi) the Borrower and each Subsidiary may declare and make dividend payments or other distributions payable solely any Restricted Payments after the date hereof in an amount not to exceed €5,000,000 in the common stock aggregate in any calendar year (with unused amounts in any calendar year being permitted to be carried over and made in any succeeding calendar year), in each case if after giving effect to any such Restricted Payment on a pro-forma basis (1) no Default or other common Equity Interests Event of Default shall have occurred and be continuing at the time of the declaration of such Person;Restricted Payment and (2) the Borrower is in compliance with the covenants set forth in Section 7.11 as of the then most recently ended fiscal quarter of the Borrower; and (cvii) the Borrower and each any Subsidiary may purchase, redeem or otherwise acquire shares of its common stock or other common Equity Interests or warrants or options to acquire declare and make any such shares in connection with customary employee or management agreements, plans or arrangements; (d) the Borrower shall be permitted to make Restricted Payments in the form of cash dividends to the shareholders of the Borrower in an aggregate amount in any fiscal year not to exceed $10,000,000; provided that, any amount of cash dividends permitted to be paid by this clause (d) but not paid in respect of any fiscal year commencing on or after October 1, 2006, may be carried forward and paid in any subsequent fiscal year; (e) the Borrower and each Subsidiary shall be permitted to make other Restricted Payments in the form of cash dividends, distributions, purchases, redemptions or other acquisitions of or with respect to shares of its common stock or other common Equity Interests either (i) if at the time of making such Restricted Payment the Consolidated Leverage Ratio (calculated on a pro forma basis if after giving effect to such Restricted Payment on a pro-forma basis (1) no Default or Event of Default shall have occurred and any Indebtedness incurred in connection therewith and any other relevant factor, all in accordance with Sections 1.04(c) and (d)) is not greater than 3.50 to 1.00, on an unlimited basis, and (ii) if be continuing at the time of making the declaration of such Restricted Payment Payment, (2) the Borrower is in compliance with the covenants set forth in Section 7.11 and (3) the Consolidated Leverage Ratio (calculated Total Debt to Capitalization Ratio, on a pro forma basis giving effect to such Restricted Payment and any Indebtedness incurred in connection therewith and any other relevant factorbasis, all in accordance with Sections 1.04(c) and (d)) is greater than 3.50 to 1.00 but less than as of the maximum permitted level for last day of the most recently ended fiscal quarter set forth in Section 8.12(a), in an amount in any fiscal year of the Borrower not greater than the Maximum Annual Payment Amount (less any portion of the Maximum Annual Payment Amount utilized to make Investments period for which financial statements have been delivered or furnished pursuant to Section 8.02(o4.01(a)(vii), Section 6.01(i) or to prepay or otherwise satisfy Indebtedness pursuant to Section 8.11(a)(iv6.01(ii)), as applicable, shall be no greater than 15%. This Section 7.06 shall not prohibit the payment of a Restricted Payment if such Restricted Payment is made within 60 days of the declaration thereof provided such Restricted Payment was not prohibited by this Section 7.06 at the time of its declaration.

Restricted Payments. Declare The Borrower will not, and will not permit any Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that, in each case (except Section 8.06(a)) so long as no Default or Event of Default shall have occurred and be continuing (both before and after the making of such Restricted Payment):exists or would result therefrom: (a) each Restricted Subsidiary may make Restricted Payments to the Borrower may declare and pay dividends with respect to wholly-owned Restricted Subsidiaries its Equity Interests payable solely in additional units or shares of its Equity Interests (and, in the case of a Restricted Payment by a non-wholly-owned Restricted Subsidiary, to the Borrower and any Restricted Subsidiary and to each other owner of capital stock or other equity interests of such Restricted Subsidiary on a pro rata basis based on their relative ownership intereststhan Disqualified Capital Stock); (b) Subsidiaries of the Borrower and each Subsidiary may declare and make dividend payments or other distributions payable solely in pay dividends to Loan Parties ratably with respect to the common stock or other common ownership of their Equity Interests of such PersonInterests; (c) the Borrower and each Subsidiary may purchase, redeem or otherwise acquire shares of its common stock or other common Equity Interests or warrants or options make a distribution to acquire Parent on any such shares in connection with customary employee or management agreements, plans or arrangementsTax Distribution Date equal to the Tax Distribution Amount; (d) Vista Sand and the Borrower shall be permitted to make Restricted Payments in may consummate the form of cash dividends to Proppants To Go Distribution on the shareholders of the Borrower in an aggregate amount in any fiscal year not to exceed $10,000,000Effective Date; provided that, any amount prior to the effectiveness of cash dividends permitted the Proppants To Go Distribution, the Borrower shall have delivered to be paid by this clause (d) but not paid the Administrative Agent a certificate of a Responsible Officer certifying that Proppants To Go owns no Property other than a U.S. Department of Transportation license number described in respect of any fiscal year commencing on or after October 1, 2006, may be carried forward such certificate and paid in any subsequent fiscal yearthe right to use the name “Proppants To Go”; (e) the Borrower and each Subsidiary shall be permitted may make distributions on the Effective Date necessary to consummate the Specified Equity Transactions in an amount not to exceed $85,000,000; and (f) the Borrower may make other Restricted Payments distributions to Parent in order to enable Parent to pay management fees not to exceed $3,000,000 in the form of cash dividends, distributions, purchases, redemptions or other acquisitions of or with respect aggregate during any calendar year to shares of its common stock or other common Equity Interests either (i) if at GBH Properties LLC, a Texas limited liability company on account of services provided to and on behalf of the time Borrower and its Subsidiaries pursuant to that certain Management Services Agreement, dated as of making such Restricted Payment the Consolidated Leverage Ratio (calculated on a pro forma basis giving effect to such Restricted Payment May 1, 2017, among GBH Properties LLC, Parent and any Indebtedness incurred in connection therewith and any other relevant factor, all in accordance with Sections 1.04(c) and (d)) is not greater than 3.50 to 1.00, on an unlimited basis, ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ and (ii) if at the time M&J Partnership, Ltd., a Texas limited partnership on account of making such Restricted Payment the Consolidated Leverage Ratio (calculated services provided to and on a pro forma basis giving effect to such Restricted Payment and any Indebtedness incurred in connection therewith and any other relevant factor, all in accordance with Sections 1.04(c) and (d)) is greater than 3.50 to 1.00 but less than the maximum permitted level for the most recently ended fiscal quarter set forth in Section 8.12(a), in an amount in any fiscal year behalf of the Borrower not greater than the Maximum Annual Payment Amount (less any portion of the Maximum Annual Payment Amount utilized to make Investments and its Subsidiaries pursuant to Section 8.02(o) or to prepay or otherwise satisfy Indebtedness pursuant to Section 8.11(a)(iv))that certain Management Services Agreement, dated as of May 1, 2017, among M&J Partnership, Ltd., Parent and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇.

Restricted Payments. Declare Not, and not permit any other Loan Party to, (a) make any dividend or makeother distribution to any of its equity holders, directly (b) purchase or indirectlyredeem any of its equity interests or any warrants, options or other rights in respect thereof, (c) pay any Restricted Paymentmanagement fees or similar fees to any of its equity holders or any Affiliate thereof, (d) make any redemption, prepayment (whether mandatory or optional), defeasance, repurchase or any other payment in respect of any Debt that is subordinated to the Obligations, (e) make any prepayment or optional payment in respect of the Second Lien Obligations, or incur (f) set aside funds for any obligation of the foregoing. Notwithstanding the foregoing: (contingent i) the Loan Parties may pay the Closing Date Dividend (and related expenses that are reflected in the final funds flow statement for the transactions contemplated hereby to occur on the Closing Date delivered to Agent on or otherwiseprior to the Closing Date); (ii) any Subsidiary may pay dividends or make other distributions to do soa Borrower or to a Wholly-Owned Domestic Subsidiary of a Borrower, except thatand any Foreign Subsidiary may pay dividends or make other distributions to another Foreign Subsidiary; (iii) Borrowers may make distributions to Holdings to permit Holdings to pay federal and state income taxes then due and owing by Holdings (or its equity holders), in each case so long as the amount of such distributions shall not be greater, nor the receipt by Borrowers of tax benefits less, than they would have been had Borrowers not filed consolidated income tax returns with such Person; (except Section 8.06(a)iv) (A) so long as no Event of Default exists or would result therefrom, Borrowers may pay management fees to Sponsor in an aggregate amount not exceeding in any Fiscal Year $1,000,000 plus an amount equal to 1.00% of the consideration paid in respect of any Permitted Acquisitions or a Qualified IPO plus amounts restricted from being paid during any prior period (provided, with respect to the payment of any such amounts restricted from being paid during any prior period, that in addition to the condition that no Event of Default exists or would result therefrom, the following conditions are satisfied: (x) after giving effect to such payment, (I) the Total Debt to EBITDA Ratio, calculated on a pro forma basis for Borrowers’ most recently ended Computation Period for which the Loan Parties’ internal financial statements are available, will not exceed the lesser of (1) the maximum Total Debt to EBITDA Ratio permitted under Section 7.14.2 as of the last day of the most recently ended Fiscal Quarter (or, for periods prior to April 30, 2015, as of April 30, 2015) and (2) 6.50:1.00, and (II) the Senior Debt to EBITDA Ratio, calculated on a pro forma basis for Borrowers’ most recently ended Computation Period for which the Loan Parties’ internal financial statements are available, will not exceed the lesser of (1) the maximum Senior Debt to EBITDA Ratio permitted under Section 7.14.1 as of the last day of the most recently ended Fiscal Quarter (or, for periods prior to April 30, 2015, as of April 30, 2015) and (2) 4.50:1.00 and (y) after giving effect to such payment, the sum of (I) the positive difference (if any) of Borrowing Availability minus Revolving Outstandings and (II) the amount of unrestricted cash and Cash Equivalent Investments of the Loan Parties on deposit in accounts for which a control agreement in favor of Agent to the extent required by Section 7.15 has been executed and is in effect, is at least $5,000,000), and (B) Borrowers may reimburse Sponsor and its Investment Affiliates for its reasonable out-of-pocket expenses incurred in connection with the management of Borrowers in an aggregate amount not exceeding $350,000 in any Fiscal Year; (v) Borrower may make, and may make distributions to Holdings to (A) permit Holdings to make, payments of directors’ fees and reimbursement of actual out-of-pocket expenses incurred in connection with attending board of director meetings not to exceed in the aggregate, with respect to all such items, $500,000 in any Fiscal Year and (B) permit Holdings to pay its direct or indirect corporate parent for out-of-pocket costs and expenses relating to the maintenance of its corporate existence and other customary holding company costs and expenses not to exceed in the aggregate, with respect to all such items, $250,000 in any Fiscal Year; (vi) Borrowers may make (A) regularly scheduled payments in respect of the Second Lien Obligations in accordance with the Second Lien Documents (as in effect on the date hereof or as modified in compliance with the Second Lien Intercreditor Agreement), (B) mandatory prepayments in respect of the Second Lien Obligations pursuant to and in accordance with the Second Lien Documents, but in each case only to the extent that a corresponding mandatory prepayment obligation exists hereunder and has been waived in writing by the Lenders, and (C) prepayments of the principal amount of the Second Lien Obligations made at the time of, and using the proceeds of, a Qualified IPO (or using the proceeds of an Incremental Term Loan that is advanced pursuant to and in accordance with the terms and conditions of Section 2.1.3(a) in connection with, and on or about the closing date for, a Qualified IPO), provided, that all of the following conditions are satisfied with respect to any such prepayment: (x) no Default or Event of Default shall have has occurred and be is continuing or would arise as a result of such payment, (both before y) after giving effect to such payment, the Senior Debt to EBITDA Ratio shall not exceed the lesser of (I) 4.50:1.00 and (II) the maximum Senior Debt to EBITDA Ratio permitted under Section 7.14.1 for the most recently ended Computation Period (or, with respect to periods prior to the first test date under Section 7.14.1, the Computation Period ending immediately after the making date of such Restricted Payment): proposed prepayment), after decreasing the applicable covenant level by 0.25, and (az) each Restricted Subsidiary may make Restricted Payments to such payment occurs within 10 Business Days of the Borrower and to wholly-owned Restricted Subsidiaries (and, in the case of a Restricted Payment by a non-wholly-owned Restricted Subsidiary, to the Borrower and any Restricted Subsidiary and to each other owner of capital stock or other equity interests consummation of such Restricted Subsidiary on a pro rata basis based on their relative ownership interests)Qualified IPO; (bvii) the Borrower and each Subsidiary Borrowers may declare and make dividend payments distributions to Holdings which are immediately used by Holdings to redeem from management stockholders, upon death, disability or other distributions payable solely in the common stock or other common Equity Interests termination of employment of such Person; management stockholder, membership interests of Holdings (cor its corporate parent) the Borrower and each Subsidiary may purchase, redeem or otherwise acquire shares of its common stock or other common Equity Interests or warrants or options to acquire any such shares in connection with customary employee or management agreementsmembership interests, plans or arrangements; (d) the Borrower shall be permitted to make Restricted Payments in the form of cash dividends to the shareholders provided, that all of the Borrower in an aggregate amount in following conditions are satisfied with respect to any fiscal year not such payment pursuant to exceed $10,000,000; provided that, any amount of cash dividends permitted to be paid by this clause (dvii): (A) but not paid no Default or Event of Default has occurred and is continuing or would arise as a result of such payment, (B) after giving effect to such payment, Borrowers are in respect of any fiscal year commencing compliance on or after October 1a pro forma basis with the covenants set forth in Section 7.14, 2006recomputed for the most recent quarter for which financial statements have been delivered, may be carried forward and paid (C) the aggregate payments permitted (x) in any subsequent fiscal year;Fiscal Year of Borrowers shall not exceed $1,000,000 and (y) during the term of this Agreement shall not exceed $3,000,000 (D) after giving effect to such payment, Borrowing Availability exceeds Revolving Outstandings by at least $2,000,000; and (E) such payment is permitted under the Second Lien Documents and the organizational documents of Holdings; and (eviii) After the Borrower and each Subsidiary shall be permitted consummation of a Qualified IPO, Borrowers may make distributions to make other Restricted Payments in Holdings which are immediately used by Holdings to redeem outstanding equity interests of Holdings (or its corporate parent) or warrants or options to acquire any such equity interests, provided, that all of the form of cash dividends, distributions, purchases, redemptions or other acquisitions of or following conditions are satisfied with respect to shares any such payment pursuant to this clause (viii): (A) no Default or Event of its common stock Default has occurred and is continuing or other common Equity Interests either would arise as a result of such payment, (iB) if at after giving effect to such payment, (I) the time of making such Restricted Payment the Consolidated Leverage Ratio (Total Debt to EBITDA Ratio, calculated on a pro forma basis giving effect for Borrowers’ most recently ended Computation Period for which the Loan Parties’ internal financial statements are available, will not exceed the lesser of (x) the maximum Total Debt to such Restricted Payment and any Indebtedness incurred in connection therewith and any other relevant factorEBITDA Ratio permitted under Section 7.14.2 as of the last day of the most recently ended Fiscal Quarter (or, all in accordance with Sections 1.04(cfor periods prior to April 30, 2015, as of April 30, 2015) and (d)y) is not greater than 3.50 to 1.00, on an unlimited basis4.50:1.00, and (iiII) if at the time of making such Restricted Payment the Consolidated Leverage Ratio (Senior Debt to EBITDA Ratio, calculated on a pro forma basis for Borrowers’ most recently ended Computation Period for which the Loan Parties’ internal financial statements are available, will not exceed the lesser of (x) the maximum Senior Debt to EBITDA Ratio permitted under Section 7.14.1 as of the last day of the most recently ended Fiscal Quarter (or, for periods prior to April 30, 2015, as of April 30, 2015) and (y) 3.50:1.00, (C) the aggregate payments permitted in any Fiscal Year of Borrowers shall not exceed $7,500,000, (D) after giving effect to such Restricted Payment and any Indebtedness incurred in connection therewith and any other relevant factorpayment, all in accordance with Sections 1.04(cthe sum of (I) the positive difference (if any) of Borrowing Availability minus Revolving Outstandings and (d)II) is greater than 3.50 to 1.00 but less than the maximum permitted level for the most recently ended fiscal quarter set forth in Section 8.12(a), in an amount in any fiscal year of unrestricted cash and Cash Equivalent Investments of the Borrower not greater than Loan Parties on deposit in accounts for which a control agreement in favor of Agent to the Maximum Annual Payment Amount extent required by Section 7.15 has been executed and is in effect, is at least $5,000,000; and (less any portion E) such payment is permitted under the Second Lien Documents and the organizational documents of the Maximum Annual Payment Amount utilized to make Investments pursuant to Section 8.02(o) or to prepay or otherwise satisfy Indebtedness pursuant to Section 8.11(a)(iv))Holdings.

Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that, in each case (except Section 8.06(a)) so long as no Default or Event of Default shall have occurred and be continuing (both before and after the making of such Restricted Payment):: (a) each Restricted Subsidiary may make Restricted Payments to the Borrower and to wholly-owned any Loan Party or Restricted Subsidiaries (and, Subsidiary that owns Equity Interests in the case of a Restricted Payment by a non-wholly-owned such Restricted Subsidiary, ratably according to their respective holdings of the Borrower and any Restricted Subsidiary and to each other owner type of capital stock or other equity interests Equity Interest in respect of which such Restricted Subsidiary on a pro rata basis based on their relative ownership interests)Payment is being made; (b) the Borrower may make Restricted Payments to Holdings so that Holdings may make, and Holdings shall be permitted to make Permitted Tax Distributions; (c) the Borrower and each Restricted Subsidiary may declare and make dividend payments or other distributions payable solely in the common stock or other common Equity Interests of such Person; (c) the Borrower and each Subsidiary may purchase, redeem or otherwise acquire shares of its common stock or other common Equity Interests or warrants or options to acquire any such shares in connection with customary employee or management agreements, plans or arrangements; (d) the Borrower may make Restricted Payments to Holdings so that Holdings may make, and Holdings shall be permitted to make Restricted Payments in the form of cash dividends to the shareholders during any fiscal year of the Borrower in an aggregate amount in any fiscal year not to exceed $10,000,0003,000,000 so long as no Default shall have occurred and be continuing, or would result therefrom, at the time of such Restricted Payment; provided that, any amount of cash dividends permitted to be paid by this clause (d) but not paid in respect of any fiscal year commencing on or after October 1, 2006, may be carried forward and paid in any subsequent fiscal year;and (e) the Borrower may make Restricted Payments to Holdings so that Holdings may make, and each Subsidiary Holdings shall be permitted to make other make, Restricted Payments in the form of cash dividendsan unlimited amount, distributions, purchases, redemptions or other acquisitions of or with respect provided that after giving pro forma effect to shares of its common stock or other common Equity Interests either (i) if at the time of making each such Restricted Payment Payment, the Consolidated Net Leverage Ratio (calculated on a pro forma basis giving effect shall be less than or equal to such Restricted Payment and any Indebtedness incurred in connection therewith and any other relevant factor, all in accordance with Sections 1.04(c) and (d)) is not greater than 3.50 to 1.00, on an unlimited basis, and (ii) if at the time of making such Restricted Payment the Consolidated Leverage Ratio (calculated on a pro forma basis giving effect to such Restricted Payment and any Indebtedness incurred in connection therewith and any other relevant factor, all in accordance with Sections 1.04(c) and (d)) is greater than 3.50 2.50 to 1.00 but less than the maximum permitted level for the most recently ended fiscal quarter set forth Measurement Period for which financial statements are required to have been delivered pursuant to Section 6.01(a) or (b) so long as no Default shall have occurred and be continuing, or would result therefrom, at the time of such Restricted Payment; (f) the Borrower may make Restricted Payments required to satisfy to any subordinated earnout obligation that was permitted to be incurred in Section 8.12(a)connection with a Permitted Acquisition; and (g) so long as no Event of Default shall have occurred and be continuing or would result therefrom, the Borrower may make Restricted Payments to Holdings so that Holdings may repurchase its Equity Interests owned by employees of Holdings, the Borrower or any of its Subsidiaries or make payments to employees of Holdings, the Borrower or its Restricted Subsidiaries upon termination of employment in connection with the exercise of stock options, stock appreciation rights or similar equity incentives or equity based incentives pursuant to management incentive plans or in connection with the death or disability of such employees in an aggregate amount under this clause (g) not to exceed $8,000,000 in any fiscal year of the Borrower not greater than the Maximum Annual Payment Amount (less any portion of the Maximum Annual Payment Amount utilized to make Investments pursuant to Section 8.02(o) or to prepay or otherwise satisfy Indebtedness pursuant to Section 8.11(a)(iv))year.

Restricted Payments. Declare The Loan Parties shall not, nor shall any Loan Party permit any Subsidiary to declare or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that, in each case (except Section 8.06(a)) so long as no Default or Event of Default shall have occurred and be continuing (both before and after the making of such Restricted Payment):except: (a) each Restricted Subsidiary may make Restricted Payments to the Borrower Borrower, any Facility Guarantor and any other Person that owns Capital Stock in such Subsidiary, ratably according to wholly-owned Restricted Subsidiaries (and, their respective holdings of the type of Capital Stock in the case respect of a which such Restricted Payment by a non-wholly-owned Restricted Subsidiary, to the Borrower and any Restricted Subsidiary and to each other owner of capital stock or other equity interests of such Restricted Subsidiary on a pro rata basis based on their relative ownership interests)is being made; (b) the Borrower and each Subsidiary may declare and make dividend payments or other distributions payable solely in the common stock or other common Equity Interests Capital Stock of such Person; (c) the Borrower and each Subsidiary may purchaserepurchase, redeem retire, or otherwise acquire shares of Capital Stock of the Borrower from any former or present employee of the Borrower or any of its common Subsidiaries, or any of their respective estates, spouses or former spouses pursuant to any management equity plan or stock option plan or any other common Equity Interests management or warrants employee benefit plan or options to acquire agreement; provided that amounts payable under this clause (c) do not exceed in any such shares in connection with customary employee or management agreements, plans or arrangementscalendar year $25,000,000; (d) the Borrower shall be permitted to may make Restricted Payments cash payments in lieu of the form issuance of cash dividends to fractional shares in connection with the shareholders exercise of warrants, options or other securities convertible into or exchangeable for Capital Stock of the Borrower in an aggregate amount in or any fiscal year Subsidiary; provided, however, that any such cash payment shall not to exceed $10,000,000; provided that, any amount be for the purpose of cash dividends permitted to be paid by evading the limitations of this clause (d) but not paid in respect of any fiscal year commencing on or after October 1, 2006, may be carried forward and paid in any subsequent fiscal yearAgreement; (e) the Borrower may issue and each Subsidiary shall be sell its common Capital Stock; and (f) as long as no Default or Event of Default hereof then exists or would arise therefrom, the Loan Parties and their Subsidiaries may make Restricted Payments in an aggregate amount not to exceed $50,000,000 in any Fiscal Year; and (g) Without duplication of, or aggregation with, any Restricted Payments permitted to under any other clause of this SECTION 6.06, the Loan Parties and their Subsidiaries may make other Restricted Payments in to the form holders of cash dividends, distributions, purchases, redemptions or other acquisitions of or with respect to shares of its common stock or other common Equity Interests either (i) if at their respective Capital Stock as long as the time of making such Restricted Payment the Consolidated Leverage Ratio (calculated on a pro forma basis giving effect to such Restricted Payment and any Indebtedness incurred in connection therewith and any other relevant factor, all in accordance with Sections 1.04(c) and (d)) is not greater than 3.50 to 1.00, on an unlimited basis, and (ii) if at the time of making such Restricted Payment the Consolidated Leverage Ratio (calculated on a pro forma basis giving effect to such Restricted Payment and any Indebtedness incurred in connection therewith and any other relevant factor, all in accordance with Sections 1.04(c) and (d)) is greater than 3.50 to 1.00 but less than the maximum permitted level for the most recently ended fiscal quarter set forth in Section 8.12(a), in an amount in any fiscal year of the Borrower not greater than the Maximum Annual Payment Amount (less any portion of the Maximum Annual Payment Amount utilized to make Investments pursuant to Section 8.02(o) or to prepay or otherwise satisfy Indebtedness pursuant to Section 8.11(a)(iv))Conditions are satisfied.

Restricted Payments. Declare or makeEach Credit Party will not, directly or indirectlyand will not permit any of its Subsidiaries, to make any Restricted Payment, or incur make any obligation (contingent or otherwise) to do so, except that, in each case (except Section 8.06(a)) so long as no Default or Event of Default shall have occurred and be continuing (both before and after the making of such deposit for any Restricted Payment):, other than: (a) each Restricted Subsidiary may make Restricted Payments to the Borrower and to wholly-owned Restricted Subsidiaries (and, in the case by any Subsidiary of a Restricted Payment by Credit Party to its direct or indirect parent, so long as such direct or indirect parent is a non-wholly-owned Restricted Subsidiary, to the Borrower and any Restricted Subsidiary and to each other owner of capital stock or other equity interests of such Restricted Subsidiary on a pro rata basis based on their relative ownership interests)Credit Party; (b) the Borrower and each Subsidiary may declare and make dividend payments Restricted Payments by any Credit Party or other distributions any of its Subsidiaries to pay dividends with respect to its Capital Stock payable solely in the common stock or other common Equity Interests additional shares of such PersonCapital Stock (other than Disqualified Capital Stock); (c) the Borrower and each Restricted Payments by any Immaterial Subsidiary may purchase, redeem or otherwise acquire shares of its common stock or other common Equity Interests or warrants or options to acquire any such shares in connection with customary employee or management agreements, plans or arrangementsanother Immaterial Subsidiary; (d) the Borrower shall be permitted to make Restricted Payments pursuant to and in the form of cash dividends accordance with stock option plans or other benefit plans, in each case to the shareholders extent permitted hereunder, for management or employees of any Credit Party or any of its Subsidiaries; provided, that the Borrower in an aggregate amount in any fiscal year not to exceed $10,000,000; provided that, any amount of cash dividends permitted to be paid by Restricted Payments made under this clause (d) but does not paid in respect of any fiscal year commencing on or after October 1, 2006, may be carried forward and paid exceed $2,500,000 in any subsequent fiscal calendar year; (e) Permitted Subordinated Debt Payments so long as the Borrower Payment Conditions are satisfied; and (f) Restricted Payments of cash actually paid in an aggregate amount not to exceed 50% of Consolidated EBITDA as of the last day of the most recently ended period of four fiscal quarters; provided, that, no Restricted Payment otherwise permitted under this Section 9.06 shall be permitted unless such Restricted Payment is made entirely with cash (except for Restricted Payments under clause (b)); and each Subsidiary provided, further, that no Restricted Payment otherwise permitted under clause (d) or (f) shall be permitted to make other Restricted Payments in the form of cash dividendsbe made if, distributions, purchases, redemptions or other acquisitions of or with respect to shares of its common stock or other common Equity Interests either (i) if at the time of making any such Restricted Payment Payment, any Event of Default or Material Default has occurred and is continuing or would result therefrom; provided, however, Parent may pay any dividend permitted under clause (f) within 30 days after the Consolidated Leverage Ratio (calculated on a pro forma basis giving effect to such Restricted Payment and any Indebtedness incurred in connection therewith and any other relevant factordate of declaration thereof, all in accordance with Sections 1.04(c) and (d)) is not greater than 3.50 to 1.00, on an unlimited basis, and (ii) if at the time date of making declaration such Restricted Payment payment would have complied with the provisions of this Agreement (including the other provisions of this Section 9.06) so long as the aggregate amount of such dividend does not exceed 12.50% of Consolidated Leverage Ratio (calculated on a pro forma basis giving effect to such Restricted Payment and any Indebtedness incurred in connection therewith and any other relevant factor, all in accordance with Sections 1.04(c) and (d)) is greater than 3.50 to 1.00 but less than EBITDA as of the maximum permitted level for last day of the most recently ended period of four fiscal quarter set forth in Section 8.12(a), in an amount in any fiscal year of the Borrower not greater than the Maximum Annual Payment Amount (less any portion of the Maximum Annual Payment Amount utilized to make Investments pursuant to Section 8.02(o) or to prepay or otherwise satisfy Indebtedness pursuant to Section 8.11(a)(iv))quarters.

Restricted Payments. Declare or makeBorrower will not, and will not permit any other Credit Party to, directly or indirectly, declare, order, pay, make or set apart any sum for any Restricted Payment; provided that the foregoing shall not restrict or prohibit (a) dividends or distributions made by any Restricted Subsidiary, directly or incur indirectly, to Borrower or to any obligation Restricted Subsidiary that is a Wholly-Owned Subsidiary of Borrower, (contingent b) dividends declared and paid by Subsidiaries ratably with respect to their Capital Stock (or otherwiseon a basis more favorable to Borrower and its Restricted Subsidiaries), (c) Restricted Payments pursuant to do soand in accordance with stock option plans or other benefit plans for management or employees of Borrower and its Subsidiaries, except that(d) cash payments by Borrower in lieu of issuing fractional shares in an aggregate amount not exceeding $200,000 during the term of this Agreement, in each case (except Section 8.06(a)) so long as provided that no Default or Event of Default shall have occurred and be continuing (both before and after exists at the making time of such Restricted Payment): payment, such payment will not cause a Default or Event of Default and such payment is made only in respect of Borrower’s 8% Convertible Preferred Stock outstanding on the Closing Date, (ae) each Restricted Subsidiary may make distributions declared and paid by Borrower effecting “poison pill” rights plans provided that any securities or rights so distributed have a nominal fair market value at the time of declaration, (f) Restricted Payments to (i) with the Borrower and to wholly-owned Restricted Subsidiaries (and, in the case proceeds of a Restricted Payment by a non-wholly-owned Restricted Subsidiary, to the Borrower and any Restricted Subsidiary and to each other owner of capital stock or other equity interests of such Restricted Subsidiary on a pro rata basis based on their relative ownership interests); (b) the Borrower and each Subsidiary may declare and make dividend payments or other distributions payable solely in the common stock or other common Equity Interests of such Person; (c) the Borrower and each Subsidiary may purchase, redeem or otherwise acquire shares of its common stock or other common Equity Interests or warrants or options to acquire any such shares Permitted Second Lien Debt in connection with customary employee or management agreementsfuture debt-for-debt exchanges involving the Senior Notes and (ii) consisting solely of debt-for-debt exchanges of the Senior Notes for Permitted Second Lien Debt, plans or arrangements; (dg) repayments of Debt from the Borrower shall be permitted to make proceeds of Debt constituting Refinancing Indebtedness and (h) other Restricted Payments in the form of cash dividends to the shareholders of the Borrower in an aggregate amount in any fiscal year not to exceed $10,000,000; provided that1,000,000 in the aggregate. Borrower will not, and will not permit any amount of cash dividends other Credit Party to issue preferred Capital Stock providing for Restricted Payments not permitted to be paid by this clause (d) but not paid in respect of any fiscal year commencing on or after October 1, 2006, may be carried forward and paid in any subsequent fiscal year; (e) the Borrower and each Subsidiary shall be permitted to make other Restricted Payments in the form of cash dividends, distributions, purchases, redemptions or other acquisitions of or with respect to shares of its common stock or other common Equity Interests either (i) if at the time of making such Restricted Payment the Consolidated Leverage Ratio (calculated on a pro forma basis giving effect to such Restricted Payment and any Indebtedness incurred in connection therewith and any other relevant factor, all in accordance with Sections 1.04(c) and (d)) is not greater than 3.50 to 1.00, on an unlimited basis, and (ii) if at the time of making such Restricted Payment the Consolidated Leverage Ratio (calculated on a pro forma basis giving effect to such Restricted Payment and any Indebtedness incurred in connection therewith and any other relevant factor, all in accordance with Sections 1.04(c) and (d)) is greater than 3.50 to 1.00 but less than the maximum permitted level for the most recently ended fiscal quarter set forth in Section 8.12(a), in an amount in any fiscal year of the Borrower not greater than the Maximum Annual Payment Amount (less any portion of the Maximum Annual Payment Amount utilized to make Investments pursuant to Section 8.02(o) or to prepay or otherwise satisfy Indebtedness pursuant to Section 8.11(a)(iv))5.4.

Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, except: (a) each Restricted Subsidiary may make Restricted Payments to any Borrower and to other Restricted Subsidiaries (and, in the case of a Restricted Payment by a non-wholly owned Restricted Subsidiary, to (i) a Borrower or incur any obligation such Restricted Subsidiary and (contingent or otherwiseii) to do soeach other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests); (b) Parent, except thatthe Borrowers and each Restricted Subsidiary may declare and make dividend payments or other distributions payable solely in the Equity Interests (other than Disqualified Equity Interests) of such Person; (c) to the extent constituting Restricted Payments, the Borrowers and the Restricted Subsidiaries may enter into transactions expressly permitted by Section 7.04, Section 7.05 or Section 7.08; (d) the Borrowers and the Restricted Subsidiaries may make Restricted Payments to Parent: (i) the proceeds of which shall be used by Parent to pay its operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses (including, without limitation, administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business, in each case an aggregate amount not to exceed $1,000,000 in any fiscal year plus any reasonable and customary indemnification claims made by directors or officers of Parent attributable to the ownership or operations of the Borrowers and the Restricted Subsidiaries; (except Section 8.06(a)ii) the proceeds of which shall be used by Parent to pay franchise taxes and other fees, taxes and expenses required to maintain Parent’s corporate existence; (iii) so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom, the proceeds of which will be used by Parent to pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of Parent (both before or, after a Qualifying IPO of UHS, UHS) held by any future, present or former employee, director, officer, member of management or consultant of Parent or any of its Subsidiaries (or the estate, family members, spouse or former spouse of any of the foregoing); provided that the aggregate amount of Restricted Payments made under this clause (e)(iv) does not exceed in any calendar year $2,500,000 (with unused amounts in any calendar year being carried over to succeeding calendar years); and provided further that such amount in any calendar year may be increased by an amount not to exceed (1) the cash proceeds from the sale of Equity Interests to employees, directors, officers, members of management or consultants of Parent or of its Subsidiaries that occurs after the Closing Date to the extent such proceeds constitute Eligible Equity Proceeds plus (2) the amount of any cash bonuses otherwise payable to employees, directors, officers, members of management or consultants of Parent or any of its Subsidiaries (or the estate, family members, spouse or former spouse of any of the foregoing) in connection with the Transactions that are foregone in return for the receipt of Equity Interests of Parent pursuant to a deferred compensation plan of such Person plus (3) the cash proceeds of key man life insurance policies received by Parent (to the extent such proceeds are contributed to UHS) or any Borrower or any Restricted Subsidiary after the Closing Date (provided that the Borrowers may elect to apply all or any portion of the aggregate increase contemplated by clauses (1), (2) and (3) above in any calendar year) less (4) the amount of any Restricted Payments previously made pursuant to clauses (1), (2) and (3) of this clause (d)(iv); (iv) to finance any Investment permitted to be made pursuant to Section 7.02; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing or consummation of such Investment or at future times as may be scheduled at the time of such closing or consummation to be made thereafter in connection therewith and (B) Parent shall, immediately following the closing or consummation thereof, cause or have caused (1) all property acquired (whether assets or Equity Interests) to be contributed to a Borrower or a Loan Party (or a Person that will become a Loan Party upon receipt of such contribution) or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into a Borrower or a Loan Party in order to consummate such Permitted Acquisition, in each case, in accordance with the requirements of Section 6.12; (v) the proceeds of which shall be used by Parent to make cash payments in lieu of the issuance of fractional shares in connection with the exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests of Parent (or, after a Qualifying IPO of UHS, of UHS); provided that any such cash payment shall not be for the purpose of evading the limitations set forth in this Section 7.06 (as determined in good faith by the board of directors or the managing board, as the case may be, of UHS (or any authorized committee thereof)); (vi) the proceeds of which shall be used by Parent for distribution to Parent to pay fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this Agreement; (vii) the proceeds of which shall be used by Parent to pay customary salary, bonus and other benefits payable to officers and employees of Parent to the extent such salaries, bonuses and other benefits are directly attributable to the ownership or operations of the Borrowers and the Restricted Subsidiaries; and (viii) the proceeds of which shall be used by Parent to pay amounts owing pursuant to the Sponsor Management Agreement, or other amounts of the type described in Section 7.08(d) or Section 7.08(k), in each case to the extent the applicable payment would be permitted under the applicable clause in Section 7.08 if such payment were to be made by a Loan Party; and (e) so long as (i) no Default or Event of Default shall have occurred and be continuing or would result therefrom and (ii) the Leverage Ratio as of the last day of the immediately preceding four fiscal quarters was less than 6.5:1 (determined on a Pro Forma Basis after giving effect to any Restricted Payment to be made pursuant to this Section 7.06(e)), in addition to the foregoing Restricted Payments, Parent, the Borrowers and the Restricted Subsidiaries may make additional Restricted Payments to their respective shareholders in an amount not to exceed the Applicable Amount as in effect immediately prior to the time of the making of such Restricted Payment):; (af) each Restricted Subsidiary from and after a Qualifying IPO of UHS, UHS may make Restricted Payments to the Borrower and to wholly-owned Restricted Subsidiaries (andPayments, in each case in accordance with the case provision thereof, deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a Restricted Payment by a non-wholly-owned Restricted Subsidiary, to portion of the Borrower and any Restricted Subsidiary and to each other owner of capital stock or other equity interests exercise price of such Restricted Subsidiary on a pro rata basis based on their relative ownership interests);options or warrants; and (bg) the Borrower so long as no Default or Event of Default shall have occurred and each Subsidiary may declare and make dividend payments be continuing or would result therefrom, other distributions payable solely in the common stock or other common Equity Interests of such Person; (c) the Borrower and each Subsidiary may purchase, redeem or otherwise acquire shares of its common stock or other common Equity Interests or warrants or options to acquire any such shares in connection with customary employee or management agreements, plans or arrangements; (d) the Borrower shall be permitted to make Restricted Payments in the form of cash dividends to the shareholders of the Borrower in an aggregate amount in any fiscal year not to exceed $10,000,000; provided that, any amount of cash dividends permitted to be paid by this clause (d) but not paid in respect of any fiscal year commencing on or after October 1, 2006, may be carried forward and paid in any subsequent fiscal year; (e) 30,000,000 since the Borrower and each Subsidiary shall be permitted to make other Restricted Payments in the form of cash dividends, distributions, purchases, redemptions or other acquisitions of or with respect to shares of its common stock or other common Equity Interests either (i) if at the time of making such Restricted Payment the Consolidated Leverage Ratio (calculated on a pro forma basis giving effect to such Restricted Payment and any Indebtedness incurred in connection therewith and any other relevant factor, all in accordance with Sections 1.04(c) and (d)) is not greater than 3.50 to 1.00, on an unlimited basis, and (ii) if at the time of making such Restricted Payment the Consolidated Leverage Ratio (calculated on a pro forma basis giving effect to such Restricted Payment and any Indebtedness incurred in connection therewith and any other relevant factor, all in accordance with Sections 1.04(c) and (d)) is greater than 3.50 to 1.00 but less than the maximum permitted level for the most recently ended fiscal quarter set forth in Section 8.12(a), in an amount in any fiscal year of the Borrower not greater than the Maximum Annual Payment Amount (less any portion of the Maximum Annual Payment Amount utilized to make Investments pursuant to Section 8.02(o) or to prepay or otherwise satisfy Indebtedness pursuant to Section 8.11(a)(iv))Closing Date.

Restricted Payments. Declare or make, directly or indirectlypermit any Subsidiary (other than any Subsidiary Outside Company) to declare or make, any Restricted Payment, or incur incur, or permit any Subsidiary (other than any Subsidiary Outside Company) to incur, any obligation (contingent or otherwise) to do so, except that, in each case (except Section 8.06(a)) so long as no Default or Event of Default shall have occurred and be continuing (both before and after the making of such Restricted Payment):: (a) each Subsidiary may declare and make Restricted Subsidiary Payments to Persons that own Equity Interests in such Subsidiary, ratably according to their respective holdings of the type of Equity Interest in respect of which such Restricted Payment is being made; (b) the Borrower may make distributions to the Trust to permit the Trust to satisfy expenses of the Trust that relate to the Borrower and its Subsidiaries; (c) to the extent the Borrower remains a pass-through entity, the Borrower may make distributions to the Trust to permit the Trust to pay federal and state income taxes then due and owing by the Trust that are attributable to the Trust’s ownership of Equity Interests in the Borrower and the operations of the Borrower and its Subsidiaries, so long as the amount of such distributions for the payment of taxes shall not be greater than the amount such taxes would have been had the Borrower not filed consolidated income tax returns with the Trust; (d) the Borrower and the Portfolio Companies may pay Management Fees to the Manager, and reimburse the Manager for its reasonable expenses incurred in connection with its management of the Borrower, pursuant to and in accordance with the terms of the Management Fee Agreement and the other Management Fee Documents, each as in effect on the date hereof (provided, that (i) any amounts paid by the Borrower under the Management Fee Agreement shall be net of amounts paid by the Portfolio Companies to the Manager or its Affiliates pursuant to the Management Fee Documents to which the Portfolio Companies are party and (ii) the making and receipt of payments under the Management Fee Documents shall be subject to the provisions of the Management Fee Subordination Agreement); (e) Subsidiaries may pay Integration Services Fees, in each case to the extent that (i) such fees are reasonable and customary based on the applicable acquisition or sale and (ii) such fees have been approved by the board of directors (or equivalent governing body) of the applicable Portfolio Company or Outside Company and by the compensation committee of the Borrower; (f) the Borrower may make Allocation Member Distributions; (g) the Borrower may make Restricted Payments if, after giving effect thereto and the incurrence of any Indebtedness in connection therewith, (i) no Event of Default exists or would result therefrom (and, assuming any such incurrence of Indebtedness in connection therewith had occurred on the first day of the then most recently ended twelve-month period of the Borrower for which a Compliance Certificate has been delivered hereunder, the Borrower would be in compliance with Section 7.11(a) on a Pro Forma Basis), and (ii) either (A) the sum of (x) all cash and Cash Equivalents of the Borrower on deposit in an account that is with the Administrative Agent or is subject to a Qualifying Control Agreement plus (y) Unused Borrowing Availability is not less than $25,000,000, or (B) the Consolidated Fixed Charge Coverage Ratio for the twelve-month period for which financial statements have been most recently delivered in accordance with this Agreement, calculated on a Pro Forma Basis giving effect to any such Restricted Payment by the Borrower and all other such Restricted Payments by the Borrower during such period as charges in the denominator of the Consolidated Fixed Charge Coverage Ratio, is greater than 1.00 to 1.00; (h) each Portfolio Company may purchase or redeem shares of its preferred stock from any one or more shareholders: (i) with Intercompany Debt permitted hereunder if, after giving effect thereto and the incurrence of any Indebtedness in connection therewith, (A) no Event of Default exists or would result therefrom, (B) the Consolidated Total Leverage Ratio as of the last day of the most recently ended twelve-month period for which financial statements have been delivered hereunder (calculated on a Pro Forma Basis assuming any such incurrence of Indebtedness in connection therewith had occurred on the first day of such period) is less than 2.00 to 1.00, and (C) the sum of (x) all cash and Cash Equivalents of the Borrower on deposit in an account that is with the Administrative Agent or is subject to a Qualifying Control Agreement plus (y) Unused Borrowing Availability is not less than $25,000,000; (ii) [reserved]; and (iii) with proceeds (net of reasonable direct costs incurred in connection therewith, including legal, accounting and investment banking fees, professional fees and expenses, and taxes paid or reasonably estimated by the Borrower to be payable as a result thereof (after taking into account any available tax credits or deductions and any tax sharing arrangements)) of a sale or issuance by the Trust of common Equity Interests in the Trust, which proceeds are contributed by the Trust to the Borrower and further contributed by the Borrower to wholly-owned Restricted Subsidiaries such Portfolio Company and actually used by such Portfolio Company to purchase or redeem shares of its preferred stock substantially concurrently with such sale or issuance and contributions; (andi) each Portfolio Company may purchase or redeem shares of its common and/or preferred Equity Interests from any one or more minority shareholders in unlimited amounts, in the case of a Restricted Payment provided that no such purchase or redemption shall be made by a nonPortfolio Company unless (A) such Portfolio Company is in compliance with the financial covenants under its Intercompany Debt Documents on a pro forma basis after giving effect to such proposed purchase or redemption, (B) no Event of Default exists or would result therefrom and (C) after giving effect to such to such proposed purchase or redemption and the incurrence of any Indebtedness in connection therewith, the Borrower shall be in compliance on a Pro Forma Basis with the covenants set forth in Section 7.11 recomputed for the twelve-wholly-owned Restricted Subsidiarymonth period ending on the last day of the most recently ended month for which a Compliance Certificate has been delivered to the Administrative Agent in accordance with the provisions of this Agreement; (j) to the extent due and payable and permitted under the applicable subordination provisions thereof, to the Portfolio Companies may make regularly scheduled payments in respect of Permitted Earn Out Obligations, provided that (i) the amount of revolver borrowing availability under the Intercompany Debt Documents between the Borrower and any Restricted Subsidiary and the applicable Portfolio Company after giving effect to each other owner such payment shall be not less than the product of capital stock or other equity interests the Portfolio Company EBITDA of such Restricted Subsidiary Portfolio Company for the twelve month period ending on the last day of the month for which a Compliance Certificate has most recently been delivered to the Administrative Agent in accordance with this Agreement times 0.25, (ii) such Portfolio Company is in compliance with the financial covenants under its Intercompany Debt Documents on a pro rata forma basis based after giving effect to such payment, (iii) no Event of Default exists or would result therefrom and (iv) after giving effect to such to such payment, the Borrower shall be in compliance on their relative ownership interests);a Pro Forma Basis with the covenants set forth in Section 7.11 recomputed for the twelve-month period ending on the last day of the most recently ended month for which a Compliance Certificate has been delivered to the Administrative Agent in accordance with the provisions of this Agreement; and (bk) the Borrower and each Subsidiary may declare and make dividend payments or other distributions payable solely in the common stock or other common Equity Interests of such Person; (c) the Borrower and each Subsidiary may purchase, redeem or otherwise acquire shares of its common stock or other common Equity Interests or warrants or options to acquire any such shares in connection with customary employee or management agreements, plans or arrangements; (d) the Borrower shall be permitted to make Restricted Payments in the form of cash dividends to the shareholders of the Borrower in an aggregate amount in any fiscal year not to exceed $10,000,000; provided that, any amount of cash dividends permitted to be paid by this clause (d) but not paid in respect of any fiscal year commencing on or after October 1, 2006, may be carried forward and paid in any subsequent fiscal year; (e) the Borrower and each Subsidiary shall be permitted to make other Restricted Payments in the form of cash dividends, distributions, purchases, redemptions or other acquisitions of or with respect to shares of its common stock or other common Equity Interests either (i) if at the time of making such Restricted Payment the Consolidated Leverage Ratio (calculated on a pro forma basis giving effect to such Restricted Payment and any Indebtedness incurred in connection therewith and any other relevant factor, all in accordance with Sections 1.04(c) and (d)) is not greater than 3.50 to 1.00, on an unlimited basis, and (ii) if at the time of making such Restricted Payment the Consolidated Leverage Ratio (calculated on a pro forma basis giving effect to such Restricted Payment and any Indebtedness incurred in connection therewith and any other relevant factor, all in accordance with Sections 1.04(c) and (d)) is greater than 3.50 to 1.00 but less than the maximum permitted level for the most recently ended fiscal quarter set forth in Section 8.12(a), in an amount in any fiscal year of the Borrower not greater than the Maximum Annual Payment Amount (less any portion of the Maximum Annual Payment Amount utilized to make Investments pursuant to Section 8.02(o) or to prepay or otherwise satisfy Indebtedness pursuant to Section 8.11(a)(iv)).

Restricted Payments. Declare No Credit Party will, and will not permit any Restricted Subsidiary to, declare, pay or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that, in each case (except Section 8.06(a)) so long as provided that no Default or Event of Default shall have occurred and be continuing before or immediately after any of the following, the Credit Parties may make the following Restricted Payments (both before and after for greater certainty, subject to the making occurrence and continuance of such Restricted Paymenta Default or an Event of Default, the exceptions listed below are each permitted payments): (a) each Restricted Subsidiary may make Restricted Payments to the Borrower may declare and pay dividends with respect to wholly-owned Restricted Subsidiaries (and, in the case of a Restricted Payment by a non-wholly-owned Restricted Subsidiary, to the Borrower and any Restricted Subsidiary and to each other owner of capital stock or other equity interests of such Restricted Subsidiary on a pro rata basis based on their relative ownership interests)its Equity Securities; (b) the Borrower and each any Restricted Subsidiary may declare and make dividend payments pay dividends to the Borrower or other distributions payable solely in the common stock any wholly-owned Restricted Subsidiary and any wholly-owned Restricted Subsidiary may redeem or other common repurchase its own Equity Interests of such PersonSecurities; (c) the Borrower may make Restricted Payments pursuant to and each Subsidiary may purchasein accordance with stock option plans, redeem profit sharing plans and/or other benefit plans for management or otherwise acquire shares employees of the Borrower and its common Subsidiaries, provided that the aggregate amount of cash payments made by the Borrower and the Subsidiaries in any Fiscal Year pursuant to all such stock or option plans, profit sharing plans and other common Equity Interests or warrants or options to acquire any such shares in connection with customary employee or management agreements, compensation benefit plans or arrangementsshall not exceed Cdn.$2,000,000; (d) the Borrower shall be permitted to make Restricted Payments in the form of cash dividends may pay to the shareholders of Parent any amounts required to pay income taxes on earnings attributed from the Borrower in an aggregate amount in any fiscal year not Borrower’s business to exceed $10,000,000; provided that, any amount of cash dividends permitted to be paid by this clause (d) but not paid in respect of any fiscal year commencing on or after October 1, 2006, may be carried forward and paid in any subsequent fiscal yearthe Parent; (e) the Borrower and each Subsidiary shall be permitted to may make other Restricted Payments in the form payments of cash dividends, distributions, purchases, redemptions or other acquisitions of or with respect to shares of its common stock or other common Equity Interests either (i) if interest under the Parent Subordinated Debt at the any time of making such Restricted Payment the Consolidated Leverage Ratio (calculated on a pro forma basis giving effect to such Restricted Payment and any Indebtedness incurred in connection therewith and any other relevant factor, all in accordance with Sections 1.04(c) and (d)) is not greater than 3.50 to 1.00, on an unlimited basis, and (ii) if at principal under the time Parent Subordinated Debt; (f) the Borrower may make any payment to the Parent which is permitted by any of making such Restricted Payment the Consolidated Leverage Ratio (calculated on a pro forma basis giving effect to such Restricted Payment and any Indebtedness incurred in connection therewith and any other relevant factor, all in accordance with Sections 1.04(c) and (d)) is greater than 3.50 to 1.00 but less than the maximum permitted level for the most recently ended fiscal quarter set forth in Section 8.12(a6.7(d), in an (e) or (f); (g) the Borrower may distribute any amount to the Parent in any fiscal year of the Borrower not greater than the Maximum Annual Payment Amount (less any portion of the Maximum Annual Payment Amount utilized to make Investments pursuant to Section 8.02(o) or to prepay or otherwise satisfy Indebtedness pursuant to Section 8.11(a)(iv))Fiscal Year.