Common use of Restrictions on Payment of Certain Debt Clause in Contracts

Restrictions on Payment of Certain Debt. Make any payments (whether voluntary or mandatory, or a prepayment, redemption, retirement, defeasance or acquisition) with respect to any Subordinated Debt, except for (i) payments of regularly scheduled interest, fees, expenses and indemnification obligations and, to the extent this Agreement is then in effect, principal on the scheduled maturity date thereof, (ii) any Permitted Refinancing Debt in respect of such Subordinated Debt permitted under Section 6.1 and (iii) the conversion of any Subordinated Debt to, or payment with the proceeds of, Equity Interests (each such payment or distribution, a “Restricted Debt Payment”)); provided, however, that any such Subordinated Debt may be repurchased, redeemed, retired, acquired, cancelled or terminated if (w) (A) no Event of Default shall have occurred and be continuing or would otherwise result therefrom and (B) the aggregate principal amount of such repurchases pursuant to this clause (w) shall not exceed the Available Basket Amount; (x) the aggregate principal amount of such repurchases under this clause (x) shall not exceed the portion, if any, of the Excluded Contributions that the Borrower elects to apply to this clause (x); (y) at the time of the delivery of the irrevocable notice with respect thereto, the aggregate principal amount of such repurchases pursuant to this clause (y) shall not exceed the greater of $40,000,000 and 2.5% of Total Assets as of the last day of the most recently ended Test Period minus (A) the amount of Restricted Payments made by the Borrower or any Restricted Subsidiary in reliance on clause (n) of the definition of “Permitted Restricted Payments”, minus (B) the outstanding amount of Investments made by the Borrower or any Restricted Subsidiary in reliance on clause (ff) of the definition of “Permitted Investment”; or (z) (A) no Event of Default shall have occurred and be continuing or would otherwise result therefrom after giving effect to such repurchases made pursuant to this clause (z) and (B) the Total Net Leverage Ratio, on a Pro Forma Basis, as of the last day of the most recent Fiscal Quarter for which financial statements have been delivered pursuant to Section 5.2(a) or (b), does not exceed 4.0 to 1.0.

Restrictions on Payment of Certain Debt. Make any payments (whether voluntary or mandatory, or a prepayment, redemption, retirement, defeasance or acquisition) with respect to any (a) Permitted Ratio Debt or Subordinated Debt, except for (i) payments any scheduled payment, or other contractually required payment, as and when due and payable in accordance with the terms of regularly scheduled interest, fees, expenses and indemnification obligations and, to the extent this Agreement is then in effect, principal on the scheduled maturity date thereofdefinitive documentation governing such Permitted Ratio Debt or Subordinated Debt (including any applicable subordination agreements), (ii) fees and expenses payable to holders of such Permitted Ratio Debt or Subordinated Debt required under the definitive documentation governing such Permitted Ratio Debt or Subordinated Debt (including any Permitted applicable subordination agreements), (iii) in connection with, and to the extent permitted hereby, any Refinancing Debt in respect of connection with such Permitted Ratio Debt or Subordinated Debt and (iv) any other payments (whether voluntary or mandatory, or a prepayment, redemption, retirement, defeasance or acquisition) so long as the Permitted Payment Conditions have been satisfied; or (b) Term Debt, except (i) any scheduled payment, or other contractually required payment, as and when due and payable in accordance with the terms of the definitive documentation governing such Term Debt (including any applicable Intercreditor Agreement), (ii) fees and expenses payable to Term Agent and Term Lenders required under the Term Loan Debt Documents, (iii) in connection with, and to the extent permitted under Section 6.1 hereby, any Refinancing Debt in connection with such Term Debt and (iii) other payments to the conversion of extent expressly permitted in the Intercreditor Agreement and (iv) any Subordinated Debt toother payments (whether voluntary or mandatory, or payment with a prepayment, redemption, retirement, defeasance or acquisition) so long as the proceeds of, Equity Interests (each such payment or distribution, a “Restricted Debt Payment”)); provided, however, that any such Subordinated Debt may be repurchased, redeemed, retired, acquired, cancelled or terminated if (w) (A) no Event of Default shall have occurred and be continuing or would otherwise result therefrom and (B) the aggregate principal amount of such repurchases pursuant to this clause (w) shall not exceed the Available Basket Amount; (x) the aggregate principal amount of such repurchases under this clause (x) shall not exceed the portion, if any, of the Excluded Contributions that the Borrower elects to apply to this clause (x); (y) at the time of the delivery of the irrevocable notice with respect thereto, the aggregate principal amount of such repurchases pursuant to this clause (y) shall not exceed the greater of $40,000,000 and 2.5% of Total Assets as of the last day of the most recently ended Test Period minus (A) the amount of Restricted Payments made by the Borrower or any Restricted Subsidiary in reliance on clause (n) of the definition of “Permitted Restricted Payments”, minus (B) the outstanding amount of Investments made by the Borrower or any Restricted Subsidiary in reliance on clause (ff) of the definition of “Permitted Investment”; or (z) (A) no Event of Default shall have occurred and be continuing or would otherwise result therefrom after giving effect to such repurchases made pursuant to this clause (z) and (B) the Total Net Leverage Ratio, on a Pro Forma Basis, as of the last day of the most recent Fiscal Quarter for which financial statements Payment Conditions have been delivered pursuant to Section 5.2(a) or (b), does not exceed 4.0 to 1.0satisfied.

Restrictions on Payment of Certain Debt. Make any payments (whether voluntary or mandatory, or a prepayment, redemption, retirement, defeasance or acquisition) with respect to any (a) Subordinated Debt or (b) unsecured Debt for borrowed money of any Obligor that constitutes Material Debt, in each case, except for (i) payments of regularly scheduled interest, fees, expenses and indemnification obligations and, to the extent this Agreement is then in effect, principal on the scheduled maturity date thereof, (ii) any Permitted Refinancing refinancings, replacements or exchanges of any such Debt in respect for like or junior debt with the proceeds of such Subordinated other Debt permitted under Section 6.1 9.2.1, and (iii) the conversion of any Subordinated such Debt to, or payment with the proceeds of, Equity Interests (each such payment or distribution, a “Restricted Debt Payment”)); providedprovided that, however, that any such Subordinated Debt the Borrowers may be repurchased, redeemed, retired, acquired, cancelled or terminated if make (wi) (A) no Event of Default shall have occurred additional payments and be continuing or would otherwise result therefrom and (B) the aggregate principal amount prepayments in respect of such repurchases pursuant to this clause (w) shall not exceed the Available Basket Amount; Debt with net proceeds from (x) Permitted Asset Dispositions of the aggregate principal amount of such repurchases under this type described in clause (x) shall not exceed the portion, if any, of the Excluded Contributions that the Borrower elects to apply to this clause (x); (y) at the time of the delivery of the irrevocable notice with respect thereto, the aggregate principal amount of such repurchases pursuant to this clause (y) shall not exceed the greater of $40,000,000 and 2.5% of Total Assets as of the last day of the most recently ended Test Period minus (A) the amount of Restricted Payments made by the Borrower or any Restricted Subsidiary in reliance on clause (np) of the definition thereof and any other Permitted Asset Dispositions that consist solely of “Permitted Restricted Payments”, minus Asset Dispositions of Term Priority Collateral to the extent permitted by the Intercreditor Agreement and (By) the outstanding amount incurrence of Investments made by Subordinated Debt or other unsecured Debt permitted hereunder and (ii) additional cash payments and prepayments in respect of such Debt with available cash on deposit (or with proceeds of the Borrower or any Restricted Subsidiary Revolver Loans) so long as, in reliance on each case, the Payment Conditions (other than the requirements of clause (ffii) of the definition of “Permitted Investment”; or (zthereof) (A) no Event of Default shall have occurred and be continuing or would otherwise result therefrom after giving effect to such repurchases made pursuant to this clause (z) and (B) the Total Net Leverage Ratio, on a Pro Forma Basis, as of the last day of the most recent Fiscal Quarter for which financial statements have been delivered pursuant to Section 5.2(a) or (b), does not exceed 4.0 to 1.0are satisfied.

Restrictions on Payment of Certain Debt. (a) Make any payments (whether voluntary or mandatory, or a prepayment, redemption, retirement, defeasance or acquisition) with respect to any (i) Subordinated Debt, except regularly scheduled payments of principal, interest and fees, but only to the extent permitted under any subordination agreement relating to such Debt (and a Responsible Officer of Borrower Representative shall certify to Agent, not less than five Business Days prior to the date of payment, that all conditions under such agreement have been satisfied); or (ii) other Debt (other than the Obligations) prior to its due date under the agreements evidencing such Debt, except for (i) payments of regularly scheduled interest, fees, expenses and indemnification obligations and, to the extent this Agreement is then in effect, principal on the scheduled maturity date thereof, (ii) any Permitted Refinancing Debt in respect of such Subordinated Debt permitted under Section 6.1 and (iiiA) the conversion prepayment of any Subordinated Debt tothe Convertible Debentures in an amount not to exceed $300,000, or payment with the proceeds of, Equity Interests (each such payment or distribution, a “Restricted Debt Payment”)); provided, however, that any such Subordinated Debt may be repurchased, redeemed, retired, acquired, cancelled or terminated if (w) (A) no Event of Default shall have occurred and be continuing or would otherwise result therefrom and (B) mandatory prepayments required under Section 2.1.6 of the aggregate principal amount of such repurchases pursuant Second Lien Term Loan Agreement (as in effect on the date hereof) and subject to this clause (w) shall not exceed the Available Basket Amount; (x) the aggregate principal amount of such repurchases under this clause (x) shall not exceed the portionrestrictions, if any, in the Second Lien Debt Intercreditor Agreement (it being understood that if Borrowers are not obligated to make any such prepayment as a result of Section 2.1.7 of the Excluded Contributions that Second Lien Term Loan Agreement (as in effect on the Borrower elects date hereof) such mandatory prepayment shall not be required) and a refinance of the Second Lien Debt to apply the extent permitted under the Second Lien Debt Intercreditor Agreement, (C) any such prepayment with respect to this clause the currently issued and outstanding notes under the Indenture or 2009 Indenture to the extent such prepayments (x); ) are permitted by, and are subject to, the satisfaction of the conditions set forth in Section 2.1.3 or (y) at the time are funded with proceeds of the delivery Second Lien Debt or Last-Out Term Loan, and (D) the Last-Out Term Loan to the extent funded with proceeds of the irrevocable notice with respect thereto, the aggregate principal amount of such repurchases pursuant to this clause (y) shall not exceed the greater of $40,000,000 and 2.5% of Total Assets as of the last day of the most recently ended Test Period minus (A) the amount of Restricted Payments made by the Borrower or any Restricted Subsidiary in reliance on clause (n) of the definition of “Permitted Restricted Payments”, minus (B) the outstanding amount of Investments made by the Borrower or any Restricted Subsidiary in reliance on clause (ff) of the definition of “Permitted Investment”Second Lien Debt; or (z) (A) no Event of Default shall have occurred and be continuing or would otherwise result therefrom after giving effect to such repurchases made pursuant to this clause (z) and (B) the Total Net Leverage Ratio, on a Pro Forma Basis, as of the last day of the most recent Fiscal Quarter for which financial statements have been delivered pursuant to Section 5.2(a) or (b), does not exceed 4.0 to 1.0.or

Restrictions on Payment of Certain Debt. Make any payments (whether voluntary or mandatory, or a prepayment, redemption, retirement, defeasance or acquisition) with respect to (a) any Subordinated Debt, except for regularly scheduled payments of principal, interest and fees, but only to the extent permitted under any subordination agreement relating to such Debt (and a Senior Officer of Borrower Agent shall certify to Agent, not less than five Business Days prior to the date of payment, that all conditions under such agreement have been satisfied); (b) any Borrowed Money (other than the Obligations, the Potlatch Indebtedness, Debt permitted under Section 10.2.1(g), Debt permitted under Section 10.2.1(s) and Debt under the 11 1/2% Senior Secured Notes) prior to its due date under the agreements evidencing such Debt as in effect on the Closing Date (or as amended thereafter with the consent of Agent) unless (i) permitted under Section 10.2.1(n) or (ii) such repayment is made with the proceeds of an issuance of Equity Interests by Clearwater not otherwise prohibited under the terms of this Agreement; (c) the Potlatch Indebtedness unless such repayment is made with the proceeds of (i) Debt permitted under Section 10.2.1(g); (ii) an Asset Disposition permitted under clause (g) of the definition of Permitted Asset Disposition; or (iii) an issuance of Equity Interests by Clearwater not otherwise prohibited under the terms of this Agreement; (d) payments (other than those set forth in clause (a) above) on intercompany loans, except payments by an Obligor to a Borrower; (e) Debt permitted under Section 10.2.1(g) unless either: (i) such repayment is made with the proceeds of regularly scheduled interest, fees, expenses and indemnification obligations and, to an issuance of Equity Interests by Clearwater not otherwise prohibited under the extent terms of this Agreement is then in effect, principal on the scheduled maturity date thereofAgreement, (ii) any Permitted Refinancing Debt in respect of such Subordinated Debt permitted under Section 6.1 both before and (iii) the conversion of any Subordinated Debt to, or payment with the proceeds of, Equity Interests (each such payment or distribution, a “Restricted Debt Payment”)); provided, however, that after giving effect to any such Subordinated Debt may be repurchasedrepayment, redeemed, retired, acquired, cancelled or terminated if (w) (A) no Default or Event of Default shall have occurred and be continuing or would otherwise result therefrom continuing, and (B) Availability is greater than an amount equal to 12.5% of the aggregate principal amount of such repurchases pursuant to this clause (w) shall not exceed the Available Basket Amount; (x) the aggregate principal amount of such repurchases under this clause (x) shall not exceed the portion, if any, of the Excluded Contributions that the Borrower elects to apply to this clause (x); (y) at the time of the delivery of the irrevocable notice with respect thereto, the aggregate principal amount of such repurchases pursuant to this clause (y) shall not exceed the greater of $40,000,000 and 2.5% of Total Assets as of the last day of the most recently ended Test Period minus (A) the amount of Restricted Payments made by the Borrower or any Restricted Subsidiary in reliance on clause (n) of the definition of “Permitted Restricted Payments”, minus (B) the outstanding amount of Investments made by the Borrower or any Restricted Subsidiary in reliance on clause (ff) of the definition of “Permitted Investment”; Revolver Commitments or (ziii) such repayment is made with the proceeds of Debt permitted under Section 10.2.1(s), or (f) Debt permitted under Section 10.2.1(s) (Aexcept regularly scheduled payments of interest) no Event of Default shall have occurred and be continuing or would otherwise result therefrom after giving effect to such repurchases made pursuant to this clause unless (zi) and (B) the Total Net Leverage Ratio, on a Pro Forma Basis, as of the last day of the most recent Fiscal Quarter for which financial statements have been delivered pursuant to permitted under Section 5.2(a10.2.1(n) or (b), does ii) such repayment is made with the proceeds of an issuance of Equity Interests by Clearwater not exceed 4.0 to 1.0otherwise prohibited under the terms of this Agreement.”

Restrictions on Payment of Certain Debt. Make any payments (whether voluntary or mandatory, or a prepayment, redemption, retirement, defeasance or acquisition) with respect to any (a) Subordinated Debt, except for regularly scheduled payments of principal, interest and fees, but only to the extent permitted under any subordination agreement relating to such Debt or (b) Borrowed Money (other than the Obligations) prior to its due date under the agreements evidencing such Debt as in effect on the Closing Date or incurred after the Closing Date pursuant to Section 10.2.1, other than: (i) payments payment of regularly scheduled interestinterest and principal payments or reimbursement obligations under letters of credit, feesin each case, expenses as and indemnification obligations and, to the extent this Agreement is then in effect, principal on the scheduled maturity date thereof, (ii) any Permitted Refinancing Debt when due in respect of such Subordinated Debt Borrowed Money; (ii) refinancings of such Borrowed Money to the extent the Borrowed Money incurred in connection therewith is permitted under Section 6.1 and hereunder; (iii) the conversion payment of any Subordinated Debt to, or payment with the proceeds of, Equity Interests (each such payment or distribution, Borrowed Money that is secured that becomes due as a “Restricted Debt Payment”)); provided, however, that any such Subordinated Debt may be repurchased, redeemed, retired, acquired, cancelled or terminated if (w) result of (A) no Event any voluntary sale or transfer of Default shall have occurred and be continuing any assets (other than assets included in any Borrowing Base) securing such Borrowed Money or would otherwise result therefrom and (B) the aggregate principal amount any casualty or condemnation proceeding (including a disposition in lieu thereof) of any assets (other than assets included in any Borrowing Base) securing such Borrowed Money; (iv) payments of or in respect of such repurchases pursuant to this clause (w) shall not exceed the Available Basket Amount; Borrowed Money by any combination of (x) the aggregate principal amount issuance of the common stock of Parent, (y) cash payments in lieu of fractional Equity Interests in connection therewith, and (z) the making of any Distribution, or other payment, permitted by Section 10.2.4 hereof, including, without limitation, in connection with the conversion of the Permitted Convertible Note Debt, (v) payments of intercompany Debt so long as, with respect to payments of intercompany Debt by an Obligor to a non-Obligor, (x) immediately before and after giving effect to each such payment, the Payment Conditions are satisfied or (y) such payments are made solely from Excluded IP Asset Proceeds deposited in the Excluded IP Asset Proceeds Account and immediately before and after giving effect to each such payment no Default or Event of Default exists; (vi) other payments of or in respect of such repurchases Borrowed Money; provided that at the time of and immediately after giving effect thereto the Payment Conditions have been satisfied; (vii) prepayments of any Borrowed Money permitted under Section 10.2.1 (other than pursuant to clause (b) thereof to the extent not permitted by the subordination provisions applicable thereto), not to exceed $5,000,000 in any Fiscal Year; provided, that no Default or Event of default exists immediately before and after giving effect to any prepayment under this clause (xvii), (viii) shall not exceed the portion, if any, exchanges of the Excluded Contributions that Permitted Convertible Notes (2019) for the Borrower elects to apply to this clause Permitted Convertible Notes (x); (y2023) at the time and repurchases or repayments of the delivery Permitted Convertible Notes (2019) with the proceeds of the irrevocable notice with respect theretoPermitted Convertible Notes (2023), provided that immediately before and after such exchanges, repurchases or repayments (i) no Default or Event of Default exists and (ii) Availability is in an amount equal to or greater than 17.5% of the aggregate Borrowing Base (calculated based on the most recently delivered Borrowing Base Report) on average during the thirty (30) days immediately before giving effect thereto and immediately after giving pro forma effect thereto and Parent shall have delivered a certificate to Agent certifying the satisfaction of clauses (i) and (ii) above, (ix) on or around the Second A&R Amendment Effective Date, exchanges of Permitted Convertible Notes (2019) for an approximately equal principal amount of Permitted Convertible Notes (2023) and repurchases or repayments of such Permitted Convertible Notes (2019) with the proceeds of such Permitted Convertible Notes (2023) and payment of interest and fees on the Permitted Convertible Notes (2019) that are being exchanged, repurchased or repaid; provided that immediately before and after such exchanges, repurchases pursuant or repayments (i) no Default or Event of Default exists and (ii) Availability is in an amount equal to this clause (y) shall not exceed the or greater of $40,000,000 and 2.5than 17.5% of Total Assets as of the last day of aggregate Borrowing Base (calculated based on the most recently ended Test Period minus delivered Borrowing Base Report) on average during the thirty (A30) days immediately before giving effect thereto and immediately after giving pro forma effect thereto and Parent shall have delivered a certificate to Agent certifying the satisfaction of clauses (i) and (ii) above and (x) on or around the Third A&R Amendment Effective Date, exchanges of Permitted Convertible Notes (2019) for an approximately equal principal amount of Restricted Payments made by Permitted Convertible Notes (2023) and repurchases or repayments of such Permitted Convertible Notes (2019) with the Borrower proceeds of such Permitted Convertible Notes (2023) and payment of interest and fees on the Permitted Convertible Notes (2019) that are being exchanged, repurchased or any Restricted Subsidiary repaid; provided that immediately before and after such exchanges, repurchases or repayments (i) no Default or Event of Default exists and (ii) Availability is in reliance on clause (n) an amount equal to or greater than 17.5% of the definition aggregate Borrowing Base (calculated based on the most recently delivered Borrowing Base Report) on average during the thirty (30) days immediately before giving effect thereto and immediately after giving pro forma effect thereto and Parent shall have delivered a certificate to Agent certifying the satisfaction of “Permitted Restricted Payments”, minus clauses (Bi) the outstanding amount of Investments made by the Borrower or any Restricted Subsidiary in reliance on clause and (ffii) of the definition of “Permitted Investment”above; or (zc) (A) no Event of Default shall have occurred earnout or purchase price adjustments with respect to a Permitted Acquisition unless immediately before and be continuing or would otherwise result therefrom after giving effect to each such repurchases payment the Payment Conditions are satisfied, other than so long as no Default or Event of Default exists, any such payment made pursuant to this clause (z) and (B) solely from the Total Net Leverage Ratio, on a Pro Forma Basis, as of Excluded IP Asset Proceeds deposited in the last day of the most recent Fiscal Quarter for which financial statements have been delivered pursuant to Section 5.2(a) or (b), does not exceed 4.0 to 1.0Excluded IP Asset Proceeds Account.

Restrictions on Payment of Certain Debt. Make any payments (whether voluntary or mandatory, or a prepayment, redemption, retirement, defeasance or acquisition) with respect to any Subordinated the Senior Note Debt, except for the Mortgage LoanConvertible Note Debt, any Junior Debt, the Convertible Note Debt and Refinancing Debt of any of the Senior Note Debt, the Mortgage Loan Debt, the Convertible Note Debt andor any Junior Debt other than (a) payments of interest, fees and expenses due in the ordinary course, (b) regularly scheduled principal payments with respect to the Mortgage Loan Debt and Refinancing Debt of the Mortgage Loan Debt[reserved], (c) payments (whether voluntary or mandatory, or a prepayment, 108 redemption, retirement, defeasance or acquisition) of the Senior Note Debt, any Junior Debt, the Mortgage Loan Debt and the Convertible Note Debt, or any Junior Debt and derived solely from Refinancing Debt which meets the Refinancing Condition, (d) prepayments of any Junior Debt with the proceeds of Asset Dispositions, insurance proceeds and condemnation awards solely to the extent (i) payments of regularly scheduled interestthe Net Proceeds, feesinsurance proceeds or condemnation awards, expenses and indemnification obligations andas applicable, were required to be applied to the extent this Agreement is then in effect, principal on the scheduled maturity date thereof, Obligations pursuant to Section 5.2 hereof and (ii) any Permitted the Required Lenders (or other parties authorized hereunder, as applicable) and each of the Co-Collateral Agents have waived, forgiven or postponed for more than ten (10) Business Days (by way of amendment, consent or otherwise) such requirement, and (e) other payments (whether voluntary or mandatory, or a prepayment, redemption, retirement, defeasance or acquisition) of Senior Note Debt, Mortgage Loan Debt, Junior Debt, Convertible Note Debt and Refinancing Debt in respect of such Subordinated the Senior Note Debt, any Junior Debt, and the Convertible Note Debt permitted under Section 6.1 and the Mortgage Loan Debt, so long as (iii) the conversion of any Subordinated Debt to, or payment with the proceeds of, Equity Interests (each such payment or distribution, a “Restricted Debt Payment”)); provided, however, that any such Subordinated Debt may be repurchased, redeemed, retired, acquired, cancelled or terminated if (w) (Ai) no Default or Event of Default shall have occurred and be continuing or would otherwise result therefrom and after giving effect to any such payment, (Bii) Excess Availability on the aggregate principal amount date of the making of such repurchases pursuant payment on a pro forma basis after giving effect to this clause such payment, and projected Excess Availability on a pro forma basis for the upcoming six month period (w) shall not exceed the Available Basket Amount; (x) the aggregate principal amount of after giving effect to such repurchases under this clause (x) shall not exceed the portionpayment), if any, of the Excluded Contributions that the Borrower elects to apply to this clause (x); (y) at the time of the delivery of the irrevocable notice with respect thereto, the aggregate principal amount of such repurchases pursuant to this clause (y) shall not exceed the greater of $40,000,000 and 2.5% of Total Assets measured as of the last day of each fiscal month during such six month period, is, in each case, greater than or equal to 15% of the lesser of (x) the aggregate Commitments as of the date of such payment and last day of each fiscal month during such six month period and (y) the Aggregate Borrowing Base as of the date of such payment and the last day of each fiscal month during such six month period, (iii) as of the monthly fiscal period most recently then ended, the Consolidated Fixed Charge Coverage Ratio (on a pro forma trailing 12 fiscal month basis, giving effect to the making of such payment, and any Borrowings made in connection therewith, determined as though such payment and such Borrowings occurred on the first day of the twelve fiscal month period ended Test Period minus prior to such payment) is greater than or equal to 1.00 to 1.00; provided that this clause (Aiii) shall not be applicable in the event that Excess Availability on the date of the making of such payment on a pro forma basis after giving effect to such payment, and projected Excess Availability on a pro forma basis for the upcoming six month period (after giving effect to such payment), measured as of the last day of each fiscal month during such six month period, is, in each case, greater than or equal to 30% of the lesser of (x) the amount aggregate Commitments as of Restricted Payments made the date of such payment and last day of each fiscal month during such six month period and (y) the Aggregate Borrowing Base as of the date of such payment and the last day of each fiscal month during such six month period and (iv) the Borrowers shall have provided the Agent with a certificate not less than then (10) days prior to the making of such payment executed by a Senior Officer of the Borrower Agent, evidencing compliance, on a pro forma basis, after giving effect to such payment, with the requirements set forth in clauses (e)(ii) and (e)(iii) above). Notwithstanding this Section 10.2.8 or anything to the contrary contained herein or in any other Loan Document, the Obligors shall be permitted to repay, redeem, retire, defease or otherwise refinance all or any Restricted Subsidiary portion of Bon-Ton’s existing Senior Note Debt consisting of 10.625% senior notes due in reliance 2017 at any time on clause (n) or prior to January 28, 2017 so long as, at the time of the definition of “Permitted Restricted Payments”any such prepayment and after giving pro forma effect thereto, minus (B) the outstanding amount of Investments made by the Borrower no Default or any Restricted Subsidiary in reliance on clause (ff) of the definition of “Permitted Investment”; or (z) (A) no Event of Default shall have occurred and be continuing and Excess Availability is greater than or would otherwise result therefrom after giving effect equal to 30% of the lesser of: (x) the aggregate Commitments at such repurchases made pursuant to this clause (z) time and (By) the Total Net Leverage Ratio, on a Pro Forma Basis, as of the last day of the most recent Fiscal Quarter for which financial statements have been delivered pursuant to Section 5.2(a) or (b), does not exceed 4.0 to 1.0Aggregate Borrowing Base at such time.

Restrictions on Payment of Certain Debt. Make any payments (whether voluntary or mandatory, or a prepayment, redemption, retirement, defeasance or acquisition) with respect to any (a) Subordinated Debt, except for regularly scheduled payments of principal, interest and fees, but only to the extent permitted under any subordination agreement relating to such Debt or (b) Borrowed Money (other than the Obligations) prior to its due date under the agreements evidencing such Debt as in effect on the Closing Date or incurred after the Closing Date pursuant to Section 10.2.1, other than: (i) payments payment of regularly scheduled interestinterest and principal payments or reimbursement obligations under letters of credit, feesin each case, expenses as and indemnification obligations and, to the extent this Agreement is then in effect, principal on the scheduled maturity date thereof, (ii) any Permitted Refinancing Debt when due in respect of such Subordinated Debt Borrowed Money; (ii) refinancings of such Borrowed Money to the extent the Borrowed Money incurred in connection therewith is permitted under Section 6.1 and hereunder; (iii) the conversion payment of any Subordinated Debt to, or payment with the proceeds of, Equity Interests (each such payment or distribution, Borrowed Money that is secured that becomes due as a “Restricted Debt Payment”)); provided, however, that any such Subordinated Debt may be repurchased, redeemed, retired, acquired, cancelled or terminated if (w) result of (A) no Event any voluntary sale or transfer of Default shall have occurred and be continuing any assets (other than assets included in any Borrowing Base) securing such Borrowed Money or would otherwise result therefrom and (B) the aggregate principal amount any casualty or condemnation proceeding (including a disposition in lieu thereof) of any assets (other than assets included in any Borrowing Base) securing such Borrowed Money; (iv) payments of or in respect of such repurchases pursuant to this clause (w) shall not exceed the Available Basket Amount; Borrowed Money by any combination of (x) the aggregate principal amount issuance of the common stock of Parent, (y) cash payments in lieu of fractional Equity Interests in connection therewith, and (z) the making of any Distribution, or other payment, permitted by Section 10.2.4 hereof, including, without limitation, in connection with the conversion of the Permitted Convertible Note Debt, (v) payments of intercompany Debt so long as, with respect to payments of intercompany Debt by an Obligor to a non-Obligor, (x) immediately before and after giving effect to each such payment, the Payment Conditions are satisfied or (y) such payments are made solely from Excluded IP Asset Proceeds deposited in the Excluded IP Asset Proceeds Account and immediately before and after giving effect to each such payment no Default or Event of Default exists; (vi) other payments of or in respect of such repurchases Borrowed Money; provided that at the time of and immediately after giving effect thereto the Payment Conditions have been satisfied; and (vii) prepayments of any Borrowed Money permitted under Section 10.2.1 (other than pursuant to clause (b) thereof to the extent not permitted by the subordination provisions applicable thereto), not to exceed $5,000,000 in any Fiscal Year; provided, that no Default or Event of default exists immediately before and after giving effect to any prepayment under this clause (xvii) shall not exceed the portion, if any, of the Excluded Contributions that the Borrower elects to apply to this clause or (x); (yc) at the time of the delivery of the irrevocable notice earnout or purchase price adjustments with respect thereto, the aggregate principal amount of such repurchases pursuant to this clause (y) shall not exceed the greater of $40,000,000 a Permitted Acquisition unless immediately before and 2.5% of Total Assets as of the last day of the most recently ended Test Period minus (A) the amount of Restricted Payments made by the Borrower or any Restricted Subsidiary in reliance on clause (n) of the definition of “Permitted Restricted Payments”, minus (B) the outstanding amount of Investments made by the Borrower or any Restricted Subsidiary in reliance on clause (ff) of the definition of “Permitted Investment”; or (z) (A) no Event of Default shall have occurred and be continuing or would otherwise result therefrom after giving effect to each such repurchases payment the Payment Conditions are satisfied, other than so long as no Default or Event of Default exists, any such 115 payment made pursuant to this clause (z) and (B) solely from the Total Net Leverage Ratio, on a Pro Forma Basis, as of Excluded IP Asset Proceeds deposited in the last day of the most recent Fiscal Quarter for which financial statements have been delivered pursuant to Section 5.2(a) or (b), does not exceed 4.0 to 1.0Excluded IP Asset Proceeds Account.

Restrictions on Payment of Certain Debt. Make Prepay, redeem, purchase, defease or otherwise satisfy prior to the scheduled maturity thereof in any payments (whether voluntary or mandatorymanner, or a prepaymentmake any payment in violation of any subordination terms of, redemptionthe Existing Senior Secured Notes, retirementthe Existing Senior Subordinated Notes, defeasance or acquisition) with respect to any Subordinated Debt, except for (i) payments of regularly scheduled interestany Restricted Debt, fees, expenses and indemnification obligations and, to the extent this Agreement is then in effect, principal on the scheduled maturity date thereof, (ii) or any Permitted Refinancing Debt in respect of any of the foregoing, except (a) any prepayments or redemptions thereof in connection with a refunding or refinancing thereof permitted by Section 10.2.1(g), (b) (i) in the case of any such Subordinated Debt permitted that is not subordinated to the Loans (other than any Restricted Debt or any Refinancing Debt thereof), to the extent required by any terms of mandatory prepayment and mandatory redemption thereof that are no less favorable in any material respect to Borrowers than those applicable to Borrowers under Section 6.1 the Existing Senior Secured Notes as of the date of this Agreement or (ii) in the case of any Restricted Debt or any Refinancing Debt thereof, to the extent required by any terms of mandatory prepayment and mandatory redemption thereof that are in effect when such Debt is incurred, so long as the covenants, defaults and Prepayment Provisions of such Debt are, taken as a whole, no more onerous or restrictive in any material respect for any Borrower or Restricted Subsidiary than those applicable under this Agreement as in effect on the Closing Date (or with respect to Prepayment Provisions, than those applicable under the Existing Senior Secured Notes Indenture as in effect on the Closing Date), and (iiic) the conversion prepayment by any Restricted Subsidiary of any Subordinated Debt to, payable to a Borrower; provided that so long as no Default or payment with the proceeds of, Equity Interests (each such payment or distribution, a “Restricted Debt Payment”)); provided, however, that any such Subordinated Debt may be repurchased, redeemed, retired, acquired, cancelled or terminated if (w) (A) no Event of Default shall have occurred and be continuing exists before or would otherwise result therefrom and (B) the aggregate principal amount of such repurchases pursuant to this clause (w) shall not exceed the Available Basket Amount; (x) the aggregate principal amount of such repurchases under this clause (x) shall not exceed the portion, if any, of the Excluded Contributions that the Borrower elects to apply to this clause (x); (y) at the time of the delivery of the irrevocable notice with respect thereto, the aggregate principal amount of such repurchases pursuant to this clause (y) shall not exceed the greater of $40,000,000 and 2.5% of Total Assets as of the last day of the most recently ended Test Period minus (A) the amount of Restricted Payments made by the Borrower or any Restricted Subsidiary in reliance on clause (n) of the definition of “Permitted Restricted Payments”, minus (B) the outstanding amount of Investments made by the Borrower or any Restricted Subsidiary in reliance on clause (ff) of the definition of “Permitted Investment”; or (z) (A) no Event of Default shall have occurred and be continuing or would otherwise result therefrom after giving effect to such repurchases made pursuant to this clause (z) and (B) the Total Net Leverage Ratio, on a Pro Forma Basis, as of the last day of the most recent Fiscal Quarter for which financial statements have been delivered pursuant to Section 5.2(a) or (b), does not exceed 4.0 to 1.0.thereto:

Restrictions on Payment of Certain Debt. Make any payments (whether voluntary or mandatory, or a prepayment, redemption, retirement, defeasance or acquisition) with respect to (a) any Subordinated Debt, except for regularly scheduled payments of principal, interest and fees, but only to the extent permitted under any subordination agreement relating to such Debt (and a Senior Officer of Borrower Agent shall certify to Agent, not less than five Business Days prior to the date of payment, that all conditions under such agreement have been satisfied); (b) any Borrowed Money (other than the Obligations, the Potlatch Indebtedness, Debt permitted under Section 10.2.1(g), Debt permitted under Section 10.2.1(s), and Debt permitted under Section 10.2.1(r)) prior to its due date under the agreements evidencing such Debt as in effect on the Closing Date (or as amended thereafter with the consent of Agent) unless (i) permitted under Section 10.2.1(n) or (ii) such repayment is made with the proceeds of an issuance of Equity Interests by Clearwater not otherwise prohibited under the terms of this Agreement; (c) the Potlatch Indebtedness unless such repayment is made with the proceeds of (i) Debt permitted under Section 10.2.1(g); (ii) an Asset Disposition permitted under clause (g) of the definition of Permitted Asset Disposition; or (iii) an issuance of Equity Interests by Clearwater not otherwise prohibited under the terms of this Agreement; (d) payments (other than those set forth in clause (a) above) on intercompany loans, except payments by an Obligor to a Borrower; (e) Debt permitted under Section 10.2.1(g) unless either: (i) such repayment is made with the proceeds of regularly scheduled interest, fees, expenses and indemnification obligations and, to an issuance of Equity Interests by Clearwater not otherwise prohibited under the extent terms of this Agreement is then in effect, principal on the scheduled maturity date thereofAgreement, (ii) both before and after giving effect to any Permitted Refinancing Debt in respect such repayment, (A) no Default or Event of Default shall have occurred and be continuing, and (B) Availability is greater than an amount equal to 12.5% of the aggregate Revolver Commitments or (iii) such Subordinated repayment is made with the proceeds of Debt permitted under Section 6.1 and 10.2.1(s), (iiif) the conversion Debt permitted under Section 10.2.1(s) (except regularly scheduled payments of any Subordinated Debt to, interest) unless (i) permitted under Section 10.2.1(n) or payment (ii) such repayment is made with the proceeds of, of an issuance of Equity Interests by Clearwater not otherwise prohibited under the terms of this Agreement, or (each g) Debt permitted under Section 10.2.1(r) unless either: (i) such payment repayment is made with the proceeds of an issuance of Equity Interests by Clearwater not otherwise prohibited under the terms of this Agreement, or distribution, a “Restricted Debt Payment”)); provided, however, that any such Subordinated Debt may be repurchased, redeemed, retired, acquired, cancelled or terminated if (wii) (A) both before and after giving effect to any such repayment, (I) no Default or Event of Default shall have occurred and be continuing and (II) Availability is greater than or would otherwise result therefrom equal to $25,000,000, and (B) such repayment is made substantially concurrently with the aggregate principal amount of such repurchases pursuant to this clause (w) shall not exceed the Available Basket Amount; (x) the aggregate principal amount of such repurchases under this clause (x) shall not exceed the portion, if any, incurrence of the Excluded Contributions that the Borrower elects to apply to this clause (xDebt permitted under Section 10.2.1(t); (y) at the time of the delivery of the irrevocable notice with respect thereto, the aggregate principal amount of such repurchases pursuant to this clause (y) shall not exceed the greater of $40,000,000 and 2.5% of Total Assets as of the last day of the most recently ended Test Period minus (A) the amount of Restricted Payments made by the Borrower or any Restricted Subsidiary in reliance on clause (n) of the definition of “Permitted Restricted Payments.”, minus (B) the outstanding amount of Investments made by the Borrower or any Restricted Subsidiary in reliance on clause (ff) of the definition of “Permitted Investment”; or (z) (A) no Event of Default shall have occurred and be continuing or would otherwise result therefrom after giving effect to such repurchases made pursuant to this clause (z) and (B) the Total Net Leverage Ratio, on a Pro Forma Basis, as of the last day of the most recent Fiscal Quarter for which financial statements have been delivered pursuant to Section 5.2(a) or (b), does not exceed 4.0 to 1.0.

Restrictions on Payment of Certain Debt. Make any payments (whether voluntary or mandatory, or a prepayment, redemption, retirement, defeasance or acquisition) with respect to any (a) Subordinated Debt, except for regularly scheduled payments of principal, interest and fees, but only to the extent permitted under any subordination agreement relating to such Debt (and a Senior Officer of Borrower Agent shall certify to Agent, not less than five Business Days prior to the date of payment, that all conditions under such agreement have been satisfied); or (b) Borrowed Money (other than the Obligations) prior to its due date under the agreements evidencing such Debt as in effect on the Closing Date (or as amended thereafter with the consent of Agent) except that the foregoing shall not prohibit, limit or restrict Akorn’s right to make (x) any mandatory payment (whether a prepayment, conversion, exchange or redemption, and whether in cash or by delivery of Equity Interests of Akorn) under the Indenture or otherwise satisfy any mandatory obligation in respect of Borrowed Money created or issued pursuant to the Indenture or (y) any voluntary payment (whether a prepayment, conversion, exchange or redemption, and whether in cash or by delivery of Equity Interests of Akorn) under the Indenture so long as (i) payments in the case of regularly scheduled interestclause (y) and as a precondition thereto, fees, expenses and indemnification obligations and, to the extent this Agreement is then in effect, principal on the scheduled maturity date thereof, (ii) any Permitted Refinancing Debt in respect of such Subordinated Debt permitted under Section 6.1 and (iii) the conversion of any Subordinated Debt to, no Default or payment with the proceeds of, Equity Interests (each such payment or distribution, a “Restricted Debt Payment”)); provided, however, that any such Subordinated Debt may be repurchased, redeemed, retired, acquired, cancelled or terminated if (w) (A) no Event of Default shall have occurred and be continuing exist at the time of such voluntary payment or would otherwise result therefrom and no Trigger Period shall exist at the time of such voluntary payment or would result therefrom and (Bii) in the aggregate principal amount case of such repurchases pursuant to this clause (w) shall not exceed the Available Basket Amount; clauses (x) the aggregate principal amount of such repurchases under this clause (x) shall not exceed the portion, if any, of the Excluded Contributions that the Borrower elects to apply to this clause (x); and (y) at the time of the delivery of the irrevocable notice with respect thereto, the aggregate principal amount of such repurchases pursuant to this clause (y) shall not exceed the greater of $40,000,000 and 2.5% of Total Assets as of the last day of the most recently ended Test Period minus (A) the amount of Restricted Payments made by the Borrower or any Restricted Subsidiary in reliance on clause (n) of the definition of “Permitted Restricted Payments”, minus (B) the outstanding amount of Investments made by the Borrower or any Restricted Subsidiary in reliance on clause (ff) of the definition of “Permitted Investment”; or (z) (A) no Event of Default shall have occurred and be continuing or would otherwise result therefrom after giving effect to such repurchases made pursuant to this clause (z) and (B) the Total Net Leverage Ratio, on a Pro Forma Basis, as of the last day of the most recent Fiscal Quarter for which financial statements have been delivered pursuant to Section 5.2(a) or (b), does not exceed 4.0 in no event shall proceeds of Loans hereunder be used by Borrowers to 1.0redeem or repurchase notes under or relating to the Indenture or otherwise to discharge obligations or make any other mandatory or voluntary payment under the Indenture.

Restrictions on Payment of Certain Debt. Make any payments (whether voluntary or mandatory, or a prepayment, redemption, retirement, defeasance or acquisition) with respect to any (a) Subordinated Debt, except for regularly scheduled payments of principal, interest and fees, but only to the extent permitted under any subordination agreement relating to such Debt (and a Senior Officer of Borrower Agent shall certify to Agent, not less than five Business Days prior to the date of payment, that all conditions under such agreement have been satisfied); (b) Borrowed Money (other than the Obligations, the Debt evidenced by the Senior Secured Notes Documents or any Senior Notes Refinancing Debt, the 2012 Senior Notes Debt, or the 20122013 Senior Notes Debt) prior to its due date under the agreements evidencing such Debt as in effect on the Closing Date (or as amended thereafter with the consent of the Required Lenders); (c) Debt evidenced by the Senior Secured Notes Documents, any Senior Notes Refinancing Debt, any 2012 Senior Notes Debt, or any 20122013 Senior Notes Debt, except (i) mandatory payments of regularly scheduled interestdue thereunder as in effect on the Closing Date (or, fees, expenses and indemnification obligations and, with respect to the extent this Agreement is then 2012 Senior Notes Debt and 2013 Senior Notes Debt, as in effect, principal effect on the scheduled maturity date thereofof incurrence of such Debt, or as amended thereafter with the consent of the Required Lenders), and (ii) any Permitted Refinancing voluntary prepayments on such Debt in respect of such Subordinated Debt permitted under Section 6.1 and so long as (iii) the conversion of any Subordinated Debt to, or payment with the proceeds of, Equity Interests (each such payment or distribution, a “Restricted Debt Payment”)); provided, however, that any such Subordinated Debt may be repurchased, redeemed, retired, acquired, cancelled or terminated if (w) (AA)(1) no Event of Default exists, (2) Excess Availability is no lessgreater than 50an amount equal to 25% of the aggregate Revolver Commitments immediately after giving effect to any such prepayment, and (3) Borrowers shall have occurred and be continuing delivered to Agent five Business Days’ prior written notice of any such prepayment accompanied by detailed calculations confirming that Borrowers are in compliance with the requirements set forth in this clause (c)(ii)(A); or would otherwise result therefrom and (B) if Excess Availability is less than 50or equal to an amount equal to 25% of the aggregate principal amount of Revolver Commitments immediately after giving effect to any such repurchases pursuant to this clause prepayment, (w) shall not exceed the Available Basket Amount; (x) the aggregate principal amount of such repurchases under this clause (x) shall not exceed the portion, if any, of the Excluded Contributions that the Borrower elects to apply to this clause (x); (y) at the time of the delivery of the irrevocable notice with respect thereto, the aggregate principal amount of such repurchases pursuant to this clause (y) shall not exceed the greater of $40,000,000 and 2.5% of Total Assets as of the last day of the most recently ended Test Period minus (A) the amount of Restricted Payments made by the Borrower or any Restricted Subsidiary in reliance on clause (n) of the definition of “Permitted Restricted Payments”, minus (B) the outstanding amount of Investments made by the Borrower or any Restricted Subsidiary in reliance on clause (ff) of the definition of “Permitted Investment”; or (z) (A1) no Event of Default shall have occurred and be continuing or would otherwise result therefrom exists, (2) Excess Availability is no lessgreater than 20an amount equal to 17.5% of the aggregate Revolver Commitments immediately after giving effect to any such repurchases made pursuant to this clause prepayment, (z3) and (B) on a pro forma basis the Total Net Leverage Fixed Charge Coverage Ratio, measured on a Pro Forma Basis, as of the last day of trailing twelve (12) month basis after giving effect to any such prepayment and recomputed for the most recent Fiscal Quarter month for which financial statements have been delivered pursuant to Agent, is at leastgreater than 1.0 to 1.0, and (4) Borrowers shall have delivered to Agent five Business Days prior written notice of any such prepayment accompanied by detailed calculations confirming that Borrowers are in compliance with the requirements set forth in this clause (c)(ii)(B); and (d) payments (other than those set forth in clause (a) above) on intercompany loans, except (i) payments by an Obligor to a Borrower, and (ii) repayment by Tapco of the Kleer Acquisition Loan so long as (A) such repayment is made solely using proceeds of a substantially contemporaneous capital contribution from Parent and (B) Borrowers have received capital contributions from Parent in an amount no less than an amount equal to the aggregate purchase consideration payable (including deferred payment obligations) in respect of the Kleer Acquisition in accordance with Section 5.2(a10.1.10; provided, however, that for purposes of the foregoing clause (c) of this Section 10.2.8, no mandatory prepayments shall be made to the extent such prepayments are required on account of sales of Revolver Priority Collateral. For clarification, payments by Parent under the Senior Secured Notes Documents and the documents governing the Senior Notes Refinancing Debt, the 2012 Senior Notes Debt, or the 20122013 Senior Notes Debt shall not constitute a payment by Borrowers under guarantees of such Debt that would constitute a breach of this Section 10.2.8. Notwithstanding anything contained in this Agreement to the contrary, for purposes of determining the amount of a mandatory prepayment that shall be deemed to be required to be made on account of a sale of Revolver Priority Collateral, such amount shall equal the lesser of (bx) the total proceeds of such sale of Revolver Priority Collateral, and (y) the greater of (i) the value of such assets attributed to the Borrowing Base and (ii) net book value of such assets recorded on the applicable Obligor’s books in accordance with GAAP, in each case for this clause (y), does not exceed 4.0 to 1.0as assessed on the date of such asset sale.

Restrictions on Payment of Certain Debt. Make any payments (whether voluntary or mandatory, or a prepayment, redemption, retirement, defeasance or acquisition) with respect to any (a) Subordinated Debt, except for regularly scheduled payments of principal, interest and fees, but only to the extent permitted under any subordination agreement relating to such Debt (and a Senior Officer of Borrower Agent shall certify to Agent, not less than five Business Days prior to the date of payment, that all conditions under such agreement have been satisfied); (b) Borrowed Money (other than the Obligations, the Debt evidenced by the Senior Secured Notes Documents or any Senior Notes Refinancing Debt, the 2012 Senior Notes Debt, or the 2013 Senior Notes Debt) prior to its due date under the agreements evidencing such Debt as in effect on the Closing Date (or as amended thereafter with the consent of the Required Lenders); (c) Debt evidenced by the Senior Secured Notes Documents, any Senior Notes Refinancing Debt, any 2012 Senior Notes Debt, or any 2013 Senior Notes Debt, except (i) mandatory payments of regularly scheduled interestdue thereunder as in effect on the Closing Date (or, fees, expenses and indemnification obligations and, with respect to the extent this Agreement is then 2012 Senior Notes Debt and 2013 Senior Notes Debt, as in effect, principal effect on the scheduled maturity date thereofof incurrence of such Debt, or as amended thereafter with the consent of the Required Lenders), and (ii) any Permitted Refinancing voluntary prepayments on such Debt in respect of such Subordinated Debt permitted under Section 6.1 and so long as (iii) the conversion of any Subordinated Debt to, or payment with the proceeds of, Equity Interests (each such payment or distribution, a “Restricted Debt Payment”)); provided, however, that any such Subordinated Debt may be repurchased, redeemed, retired, acquired, cancelled or terminated if (w) (AA)(1) no Event of Default exists, (2) Excess Availability is greater than an amount equal to 25% of the aggregate Revolver Commitments immediately after giving effect to any such prepayment, and (3) Borrowers shall have occurred and be continuing delivered to Agent five Business Days’ prior written notice of any such prepayment accompanied by detailed calculations confirming that Borrowers are in compliance with the requirements set forth in this clause (c)(ii)(A); or would otherwise result therefrom and (B) if Excess Availability is less than or equal to an amount equal to 25% of the aggregate principal amount of Revolver Commitments immediately after giving effect to any such repurchases pursuant to this clause prepayment, (w) shall not exceed the Available Basket Amount; (x) the aggregate principal amount of such repurchases under this clause (x) shall not exceed the portion, if any, of the Excluded Contributions that the Borrower elects to apply to this clause (x); (y) at the time of the delivery of the irrevocable notice with respect thereto, the aggregate principal amount of such repurchases pursuant to this clause (y) shall not exceed the greater of $40,000,000 and 2.5% of Total Assets as of the last day of the most recently ended Test Period minus (A) the amount of Restricted Payments made by the Borrower or any Restricted Subsidiary in reliance on clause (n) of the definition of “Permitted Restricted Payments”, minus (B) the outstanding amount of Investments made by the Borrower or any Restricted Subsidiary in reliance on clause (ff) of the definition of “Permitted Investment”; or (z) (A1) no Event of Default shall have occurred and be continuing or would otherwise result therefrom exists, (2) Excess Availability is greater than an amount equal to 17.5% of the aggregate Revolver Commitments immediately after giving effect to any such repurchases made pursuant to this clause prepayment, (z3) and (B) on a pro forma basis the Total Net Leverage Fixed Charge Coverage Ratio, measured on a Pro Forma Basis, as of the last day of trailing twelve (12) month basis after giving effect to any such prepayment and recomputed for the most recent Fiscal Quarter month for which financial statements have been delivered pursuant to Agent, is greater than 1.0 to 1.0, and (4) Borrowers shall have delivered to Agent five Business Days prior written notice of any such prepayment accompanied by detailed calculations confirming that Borrowers are in compliance with the requirements set forth in this clause (c)(ii)(B); and (d) payments (other than those set forth in clause (a) above) on intercompany loans, except (i) payments by an Obligor to a Borrower, and (ii) repayment by Tapco of the Kleer Acquisition Loan so long as (A) such repayment is made solely using proceeds of a substantially contemporaneous capital contribution from Parent and (B) Borrowers have received capital contributions from Parent in an amount no less than an amount equal to the aggregate purchase consideration payable (including deferred payment obligations) in respect of the Kleer Acquisition in accordance with Section 5.2(a10.1.10; provided, however, that for purposes of the foregoing clause (c) of this Section 10.2.8, no mandatory prepayments shall be made to the extent such prepayments are required on account of sales of Revolver Priority Collateral. For clarification, payments by Parent under the Senior Secured Notes Documents and the documents governing the Senior Notes Refinancing Debt, the 2012 Senior Notes Debt, or the 2013 Senior Notes Debt shall not constitute a payment by Borrowers under guarantees of such Debt that would constitute a breach of this Section 10.2.8. Notwithstanding anything contained in this Agreement to the contrary, for purposes of determining the amount of a mandatory prepayment that shall be deemed to be required to be made on account of a sale of Revolver Priority Collateral, such amount shall equal the lesser of (bx) the total proceeds of such sale of Revolver Priority Collateral, and (y) the greater of (i) the value of such assets attributed to the Borrowing Base and (ii) net book value of such assets recorded on the applicable Obligor’s books in accordance with GAAP, in each case for this clause (y), does not exceed 4.0 to 1.0as assessed on the date of such asset sale.

Restrictions on Payment of Certain Debt. Make any payments (whether voluntary or mandatory, or a prepayment, redemption, retirement, defeasance or acquisition) with respect to any (a) Subordinated Debt, except for to the extent permitted under any subordination agreement relating to such Debt (and a Senior Officer of Borrower Agent shall certify to Agent, not less than five Business Days prior to the date of payment, that all conditions under such agreement have been satisfied); or (b) Borrowed Money (other than the Obligations, Subordinated Debt and Debt owed by an Obligor or a Subsidiary that is not an Obligor to an Obligor) prior to its due date under the agreements evidencing such Debt as in effect on the Closing Date (or as amended thereafter with the consent of Agent); provided, that Borrowers and their Subsidiaries may make prepayments of Borrowed Money under this clause (b) (including, without limitation, voluntary prepayments from equity issuances by Cross Country not otherwise required to be used to prepay the Obligations) so long as (i) payments no Default or Event of regularly scheduled interest, fees, expenses and indemnification obligations and, to the extent this Agreement Default exists or is then in effect, principal on the scheduled maturity date thereof, caused thereby; (ii) any Permitted Refinancing Debt in respect upon giving pro forma effect thereto, Average Availability for the 45 day period immediately preceding the date of such Subordinated Debt permitted under Section 6.1 prepayment and Availability as of the date of such prepayment is no less than the greater of (A) 20% of the Loan Cap, and (B) $13,000,000; (iii) the conversion Fixed Charge Coverage Ratio for the 12 month period ending on the date of any Subordinated Debt to, or payment with the proceeds of, Equity Interests (each such payment or distribution, a “Restricted Debt Payment”)); provided, however, that any such Subordinated Debt may financial statements most recently required to be repurchased, redeemed, retired, acquired, cancelled or terminated if (w) (A) no Event of Default shall have occurred and be continuing or would otherwise result therefrom and (B) the aggregate principal amount of such repurchases delivered pursuant to this clause (w) shall not exceed the Available Basket Amount; (x) the aggregate principal amount of such repurchases under this clause (x) shall not exceed the portionSection 10.1.2(b), if any, of the Excluded Contributions that the Borrower elects to apply to this clause (x); (y) at the time of the delivery of the irrevocable notice with respect thereto, the aggregate principal amount of such repurchases pursuant to this clause (y) shall not exceed the greater of $40,000,000 and 2.5% of Total Assets as of the last day of the most recently ended Test Period minus (A) the amount of Restricted Payments made by the Borrower or any Restricted Subsidiary in reliance determined on clause (n) of the definition of “Permitted Restricted Payments”, minus (B) the outstanding amount of Investments made by the Borrower or any Restricted Subsidiary in reliance on clause (ff) of the definition of “Permitted Investment”; or (z) (A) no Event of Default shall have occurred and be continuing or would otherwise result therefrom a pro forma basis after giving effect to such repurchases made pursuant prepayment, is greater than 1:0 to this 1:0, whether or not a Trigger Period (FCCR) exists; (iv) each of the Person making such prepayment and Obligors taken as a whole is Solvent after giving effect to such prepayment; and (v) such prepayment does not violate Applicable Law; provided, further, that satisfaction of the condition in clause (ziii) and (B) the Total Net Leverage Ratio, on a Pro Forma Basis, as of this sentence shall not be required with respect to any prepayment of the last day Second Lien Debt within 150 days of the most recent Fiscal Quarter for which financial statements have been delivered pursuant Third Amendment Date from proceeds of an Equities Securities Issuance by Cross Country. For the avoidance of doubt, notwithstanding anything else herein to Section 5.2(athe contrary, the conversion of the Subordinated Notes to common equity of Borrower in accordance with the terms of the Subordinated Debt Documents (as defined in the Subordination Agreement) or (b)as in effect on the date hereof, does not exceed 4.0 to 1.0shall be permitted.

Restrictions on Payment of Certain Debt. Make any payments (whether voluntary or mandatory, or a prepayment, redemption, retirement, defeasance or acquisition) with respect to any (a) Subordinated Debt, except for regularly scheduled payments of principal, interest and fees, but only to the extent permitted under any subordination agreement relating to such Debt (and a Senior Officer of Borrower Agent shall certify to Agent, not less than five Business Days prior to the date of payment, that all conditions under such agreement have been satisfied); or (b) Borrowed Money (other than the Obligations) prior to its due date under the agreements evidencing such Debt as in effect on the Closing Date (or as amended thereafter with the consent of Agent). Notwithstanding the foregoing, Borrowers may make payments (whether voluntary or mandatory, or a prepayment, redemption, retirement, defeasance or repurchase) (a) with respect to intercompany Debt, (b) with respect to any Debt with the proceeds of Refinancing Debt or an Excluded Capital Contribution, (c) with respect to any Debt (other than with the proceeds of Refinancing Debt or an Excluded Capital Contribution), in an aggregate principal amount not to exceed $30,000,000 during any 12 month period, if, (i) payments as of regularly scheduled interestthe date of such payment, feesno Default, expenses Event of Default or Overadvance exists or would result from the making thereof, and indemnification obligations and(ii) after giving effect thereto, on a pro forma basis, (A) the Fixed Charge Coverage Ratio based on the Fiscal Quarter financial statements most recently delivered pursuant to Section 10.1.2(b) shall be not less than 1.0 to 1.0, (B) Availability at all times during the extent this Agreement immediately preceding 30 day period shall be not less than the greater of (1) $30,000,000 or (2) 30% of the lesser of (x) the Borrowing Base and (y) the aggregate Commitments, and (C) the Leverage Ratio shall not be greater than the Leverage Ratio set forth in Section 10.3.1 based on the Fiscal Quarter financial statements most recently delivered pursuant to Section 10.1.2(b) (without regard to whether a Covenant Trigger Period is then in effect), and (d) regularly scheduled payments of interest and fees, and payment of principal on at maturity, under the scheduled maturity Second Lien Documents (subject to the limitations set forth in the Intercreditor Agreement); except, that, each Borrower shall not, and each Borrower shall cause each Restricted Subsidiary not to, make any payment of “Excess Cash Flow” under and as such capitalized term is defined in the Second Lien Documents unless (i) as of the date of such payment, no Default or Event of Default exists or would exist from the making thereof, (ii) any Permitted Refinancing Debt in respect of such Subordinated Debt permitted under Section 6.1 and (iii) the conversion of any Subordinated Debt toafter giving effect thereto, or payment with the proceeds ofon a pro forma basis, Equity Interests (each such payment or distribution, a “Restricted Debt Payment”)); provided, however, that any such Subordinated Debt may be repurchased, redeemed, retired, acquired, cancelled or terminated if (w) (A) no Event of Default the Fixed Charge Coverage Ratio based on the Fiscal Quarter financial statements most recently delivered pursuant to Section 10.1.2(b) shall have occurred and be continuing or would otherwise result therefrom and not less than 1.1 to 1.0, (B) Availability at all times during the aggregate principal amount of such repurchases pursuant to this clause (w) immediately preceding 30 day period shall not exceed the Available Basket Amount; (x) the aggregate principal amount of such repurchases under this clause (x) shall not exceed the portion, if any, of the Excluded Contributions that the Borrower elects to apply to this clause (x); (y) at the time of the delivery of the irrevocable notice with respect thereto, the aggregate principal amount of such repurchases pursuant to this clause (y) shall not exceed be less than the greater of $40,000,000 30,000,000 and 2.5(y) 30% of Total Assets as the lesser of the last day of the most recently ended Test Period minus (A1) the amount of Restricted Payments made by the Borrower or any Restricted Subsidiary in reliance on clause Borrowing Base and (n) of the definition of “Permitted Restricted Payments”, minus (B2) the outstanding amount of Investments made by the Borrower or any Restricted Subsidiary in reliance on clause (ff) of the definition of “Permitted Investment”; or (z) (A) no Event of Default shall have occurred and be continuing or would otherwise result therefrom after giving effect to such repurchases made pursuant to this clause (z) and (B) the Total Net Leverage Ratio, on a Pro Forma Basis, as of the last day of the most recent Fiscal Quarter for which financial statements have been delivered pursuant to Section 5.2(a) or (b), does not exceed 4.0 to 1.0aggregate Commitments.

Restrictions on Payment of Certain Debt. Make any payments (whether voluntary or mandatory, or a prepayment, redemption, retirement, defeasance or acquisition) with respect to any (a) Subordinated Debt, except for (i) regularly scheduled payments of regularly scheduled interestprincipal, interest and fees, expenses and indemnification obligations and, but only to the extent this Agreement is then permitted under any subordination agreement relating to such Debt (and a Senior Officer of Borrower Agent shall certify to Agent, not less than five Business Days prior to the date of payment, that all conditions under such agreement have been satisfied); (b) Borrowed Money (other than the Obligations and the Debt evidenced by the Senior Secured Notes Documents) prior to its due date under the agreements evidencing such Debt as in effect, principal effect on the scheduled maturity date thereofClosing Date (or as amended thereafter with the consent of the Required Lenders); (c) Debt evidenced by the Senior Secured Notes Documents, except mandatory payments due thereunder as in effect on the Closing Date (iior as amended thereafter with the consent of the Required Lenders) any Permitted Refinancing Debt in respect of such Subordinated Debt permitted under Section 6.1 and (iiid) the conversion of any Subordinated Debt topayments (other than those set forth in clause (a) above) on intercompany loans, or payment with the proceeds of, Equity Interests (each such payment or distribution, except payments by an Obligor to a “Restricted Debt Payment”))Borrower; provided, however, that any for purposes of the foregoing clause (c) this Section 10.2.8, no mandatory prepayments shall be made to the extent such Subordinated prepayments are required on account of sales of Revolver Priority Collateral. For clarification, payments by Parent under the Senior Secured Notes Documents shall not constitute a payment by Borrowers under guarantees of such Debt may be repurchasedthat would constitute a breach of this Section 10.2.8. Notwithstanding anything contained in this Agreement to the contrary, redeemed, retired, acquired, cancelled or terminated if (w) (A) no Event for purposes of Default shall have occurred and be continuing or would otherwise result therefrom and (B) determining the aggregate principal amount of a mandatory prepayment that shall be deemed to be required to be made on account of a sale of Revolver Priority Collateral, such repurchases pursuant to this clause (w) amount shall not exceed equal the Available Basket Amount; lesser of (x) the aggregate principal amount total proceeds of such repurchases under this clause (x) shall not exceed the portionsale of Revolver Priority Collateral, if any, of the Excluded Contributions that the Borrower elects to apply to this clause (x); and (y) at the time greater of (i) the delivery of the irrevocable notice with respect thereto, the aggregate principal amount value of such repurchases pursuant assets attributed to the Borrowing Base and (ii) net book value of such assets recorded on the applicable Obligor’s books in accordance with GAAP, in each case for this clause (y) shall not exceed the greater of $40,000,000 and 2.5% of Total Assets as of the last day of the most recently ended Test Period minus (A) the amount of Restricted Payments made by the Borrower or any Restricted Subsidiary in reliance on clause (n) of the definition of “Permitted Restricted Payments”, minus (B) the outstanding amount of Investments made by the Borrower or any Restricted Subsidiary in reliance on clause (ff) of the definition of “Permitted Investment”; or (z) (A) no Event of Default shall have occurred and be continuing or would otherwise result therefrom after giving effect to such repurchases made pursuant to this clause (z) and (B) the Total Net Leverage Ratio, on a Pro Forma Basis), as assessed on the date of the last day of the most recent Fiscal Quarter for which financial statements have been delivered pursuant to Section 5.2(a) or (b), does not exceed 4.0 to 1.0such asset sale.

Restrictions on Payment of Certain Debt. Make any payments (whether voluntary or mandatory, or a prepayment, redemption, retirement, defeasance or acquisition) with respect to any Subordinated the Senior Note Debt, except for the Mortgage Loan Debt and Refinancing Debt of the Senior Note Debt and the Mortgage Loan Debt other than (a) payments of interest, fees and expenses due in the ordinary course, (b) regularly scheduled principal payments with respect to the Mortgage Loan Debt and Refinancing Debt of the Mortgage Loan Debt, (c) payments of the Senior Note Debt and Mortgage Loan Debt derived solely from Refinancing Debt which meets the Refinancing Condition and (d) other payments of Senior Note Debt, Mortgage Loan Debt and Refinancing Debt of the Senior Note Debt and the Mortgage Loan Debt, so long as (i) payments of regularly scheduled interest, fees, expenses and indemnification obligations and, to the extent this Agreement is then in effect, principal on the scheduled maturity date thereof, (ii) any Permitted Refinancing Debt in respect of such Subordinated Debt permitted under Section 6.1 and (iii) the conversion of any Subordinated Debt to, or payment with the proceeds of, Equity Interests (each where such payment or distribution, a “Restricted Debt Payment”)); provided, however, that any such Subordinated Debt may be repurchased, redeemed, retired, acquired, cancelled or terminated if (w) is not made with proceeds of an offering of the equity securities of the Parent (A) no Default or Event of Default shall have occurred and be continuing or would otherwise result therefrom and after giving effect to any such payment, (B) Excess Availability on the aggregate principal amount date of the making of such repurchases pursuant payment, and projected Excess Availability for the upcoming twelve month period is, in each case, greater than or equal to this clause $200,000,000, (wC) shall not exceed the Available Basket Amount; (x) the aggregate principal amount of such repurchases under this clause (x) shall not exceed the portion, if any, of the Excluded Contributions that the Borrower elects to apply to this clause (x); (y) at the time of the delivery of the irrevocable notice with respect thereto, the aggregate principal amount of such repurchases pursuant to this clause (y) shall not exceed the greater of $40,000,000 and 2.5% of Total Assets as of the last day monthly fiscal period most recently then ended, the Consolidated Fixed Charge Coverage Ratio (consolidated on a pro forma basis giving effect to the making of such payment) is not less than 1.5:1.0, and (D) the Borrowers shall have provided the Agent with a certificate not less than then (10) days prior to the making of such payment executed by a Senior Officer, evidencing compliance, on a pro forma basis, after giving effect to such payment, with the requirements set forth in clauses (d)(i)(A), (d)(i)(B) and (d)(i)(C) above) prior to its due date under the agreements evidencing such Debt as in effect on the Closing Date (or as amended thereafter with the consent of Agent) and (ii) where such payment is made with proceeds of an offering of the most recently ended Test Period minus (A) the amount of Restricted Payments made by the Borrower or any Restricted Subsidiary in reliance on clause (n) equity securities of the definition of “Permitted Restricted Payments”Parent, minus (B) the outstanding amount of Investments made by the Borrower or any Restricted Subsidiary in reliance on clause (ff) of the definition of “Permitted Investment”; or (z) (A) no Default or Event of Default shall have occurred and be continuing or would otherwise result therefrom after giving effect to any such payment, (B) Excess Availability on the date of the making of such payment, and projected Excess Availability for the upcoming twelve month period is, in each case, greater than or equal to $150,000,000 and (C) the Borrowers shall have provided the Agent with a certificate not less than then (10) days prior to the making of such payment executed by a Senior Officer, evidencing compliance, on a pro forma basis, after giving effect to such repurchases made pursuant to this clause payment, with the requirements set forth in clauses (zd)(ii)(A) and (Bd)(ii)(B) the Total Net Leverage Ratio, on a Pro Forma Basis, as of the last day of the most recent Fiscal Quarter for which financial statements have been delivered pursuant to Section 5.2(a) or (babove), does not exceed 4.0 to 1.0.

Restrictions on Payment of Certain Debt. Make any payments (whether voluntary or mandatory, or a prepayment, purchase, redemption, retirement, defeasance or acquisition; each, for purposes of this Section 10.2.7, a “payment”) with respect to any (a) Subordinated Debt, except for regularly scheduled payments of principal, interest and fees, but only to the extent permitted under any subordination agreement relating to such Debt (and a Senior Officer of Borrower Agent shall certify to Agent, not less than five Business Days prior to the date of payment, that all conditions under such agreement have been satisfied); or (b) other Borrowed Money, other than, (i) payments of regularly scheduled interest, fees, expenses and indemnification obligations and, intercompany loans by an Obligor or a Subsidiary to the extent this Agreement another Obligor or by a Subsidiary that is then in effect, principal on the scheduled maturity date thereofnot an Obligor to another Subsidiary that is not an Obligor, (ii) any Permitted Refinancing as long as no Default or Event of Default exists, payments of Debt in respect of such Subordinated Debt permitted under Section 6.1 and made within thirty (iii30) the conversion of any Subordinated Debt to, or payment with days from the proceeds of, Equity Interests or by conversion or exchange for or into, Refinancing Debt, (each iii) payment of regularly scheduled interest and principal payments and mandatory prepayments, redemptions and repurchases (including customary excess cash flow prepayments) as and when due in respect of any Permitted Secured Debt and the Term Loan B Facility (including any Refinancing Debt thereof), (iv) any Purchase Money Debt to the extent such payment or distribution, a “Restricted Debt Payment”)); provided, however, that any such Subordinated Debt may be repurchased, redeemed, retired, acquired, cancelled or terminated if (w) (A) no Event is made from the proceeds of Default shall have occurred and be continuing or would otherwise result therefrom and (B) the aggregate principal amount of such repurchases pursuant to this clause (w) shall not exceed the Available Basket Amount; (x) the aggregate principal amount of such repurchases under this clause (x) shall not exceed the portion, if any, an Asset Disposition of the Excluded Contributions that underlying asset permitted under Section 10.2.5, (v) any scheduled payments under the Borrower elects to apply to this clause agreements evidencing such Borrowed Money as in effect on the Closing Date (xor as amended thereafter with the consent of Agent or as amended in accordance with Section 10.2.18); , (yvi) at the time other payments on Borrowed Money so long as all of the delivery of the irrevocable notice Prepayment Conditions are satisfied with respect thereto, the aggregate principal amount of such repurchases pursuant to this clause (yvii) shall not exceed the greater of $40,000,000 and 2.5% of Total Assets as in respect of the last day of the most recently ended Test Period minus (A) the amount of Restricted Payments made by the Borrower or any Restricted Subsidiary in reliance on clause (n) of the definition of “Permitted Restricted Payments”Obligations, minus (B) the outstanding amount of Investments made by the Borrower or any Restricted Subsidiary in reliance on clause (ff) of the definition of “Permitted Investment”; or (z) (A) no Event of Default shall have occurred and be continuing or would otherwise result therefrom after giving effect to such repurchases made pursuant to this clause (z) and (Bviii) the Total Net Leverage Ratioother payments made as part of a refinancing, on a Pro Forma Basisreplacement, as refunding, exchange or conversion of the last day of the most recent Fiscal Quarter for which financial statements have been delivered pursuant to Section 5.2(a) or (b), does not exceed 4.0 to 1.0Debt otherwise permitted under this Agreement.

Restrictions on Payment of Certain Debt. Make any payments (whether voluntary or mandatory, or a prepayment, redemption, retirement, defeasance or acquisition) with respect to any (a) Subordinated Debt, except for regularly scheduled payments of principal, interest and fees, but only to the extent permitted under any subordination agreement relating to such Debt or (b) Borrowed Money (other than the Obligations) prior to its due date under the agreements evidencing such Debt as in effect on the Closing Date or incurred after the Closing Date pursuant to Section 10.2.1, other than: (i) payments payment of regularly scheduled interestinterest and principal payments or reimbursement obligations under letters of credit, feesin each case, expenses as and indemnification obligations and, to the extent this Agreement is then in effect, principal on the scheduled maturity date thereof, (ii) any Permitted Refinancing Debt when due in respect of such Subordinated Debt Borrowed Money; (ii) refinancings of such Borrowed Money to the extent the Borrowed Money incurred in connection therewith is permitted under Section 6.1 and hereunder; (iii) the conversion payment of any Subordinated Debt to, or payment with the proceeds of, Equity Interests (each such payment or distribution, Borrowed Money that is secured that becomes due as a “Restricted Debt Payment”)); provided, however, that any such Subordinated Debt may be repurchased, redeemed, retired, acquired, cancelled or terminated if (w) result of (A) no Event any voluntary sale or transfer of Default shall have occurred and be continuing any assets (other than assets included in any Borrowing Base) securing such Borrowed Money or would otherwise result therefrom and (B) the aggregate principal amount any casualty or condemnation proceeding (including a disposition in lieu thereof) of any assets (other than assets included in any Borrowing Base) securing such Borrowed Money; (iv) payments of or in respect of such repurchases pursuant to this clause (w) shall not exceed the Available Basket Amount; Borrowed Money by any combination of (x) the aggregate principal amount issuance of the common stock of Parent, (y) cash payments in lieu of fractional Equity Interests in connection therewith, and (z) the making of any Distribution, or other payment, permitted by Section 10.2.4 hereof, including, without limitation, in connection with the conversion of the Permitted Convertible Note Debt, (v) payments of intercompany Debt so long as, with respect to payments of intercompany Debt by an Obligor to a non-Obligor, (x) immediately before and after giving effect to each such payment, the Payment Conditions are satisfied or (y) such payments are made solely from Excluded IP Asset Proceeds deposited in the Excluded IP Asset Proceeds Account and immediately before and after giving effect to each such payment no Default or Event of Default exists; (vi) other payments of or in respect of such repurchases Borrowed Money; provided that at the time of and immediately after giving effect thereto the Payment Conditions have been satisfied; and (vii) prepayments of any Borrowed Money permitted under Section 10.2.1 (other than pursuant to clause (b) thereof to the extent not permitted by the subordination provisions applicable thereto), not to exceed $5,000,000 in any Fiscal Year; provided, that no Default or Event of default exists immediately before and after giving effect to any prepayment under this clause (xvii) shall not exceed the portion, if any, of the Excluded Contributions that the Borrower elects to apply to this clause or (x); (yc) at the time of the delivery of the irrevocable notice earnout or purchase price adjustments with respect thereto, the aggregate principal amount of such repurchases pursuant to this clause (y) shall not exceed the greater of $40,000,000 a Permitted Acquisition unless immediately before and 2.5% of Total Assets as of the last day of the most recently ended Test Period minus (A) the amount of Restricted Payments made by the Borrower or any Restricted Subsidiary in reliance on clause (n) of the definition of “Permitted Restricted Payments”, minus (B) the outstanding amount of Investments made by the Borrower or any Restricted Subsidiary in reliance on clause (ff) of the definition of “Permitted Investment”; or (z) (A) no Event of Default shall have occurred and be continuing or would otherwise result therefrom after giving effect to each such repurchases payment the Payment Conditions are satisfied, other than so long as no Default or Event of Default exists, any such payment made pursuant to this clause (z) and (B) solely from the Total Net Leverage Ratio, on a Pro Forma Basis, as of Excluded IP Asset Proceeds deposited in the last day of the most recent Fiscal Quarter for which financial statements have been delivered pursuant to Section 5.2(a) or (b), does not exceed 4.0 to 1.0Excluded IP Asset Proceeds Account.

Restrictions on Payment of Certain Debt. Make any payments (whether voluntary or mandatory, or a prepayment, redemption, retirement, defeasance or acquisition) with respect to any (a) Subordinated Debt, except for regularly scheduled payments of principal, interest and fees, but only to the extent permitted under any subordination agreement relating to such Debt (and a Senior Officer of Borrower Agent shall certify to Agent, not less than five Business Days prior to the date of payment, that all conditions under such agreement have been satisfied); (b) Borrowed Money (other than the Obligations, the Debt evidenced by the Senior Secured Notes Documents or any Senior Notes Refinancing Debt or the 2012 Senior Notes Debt) prior to its due date under the agreements evidencing such Debt as in effect on the Closing Date (or as amended thereafter with the consent of the Required Lenders); (c) Debt evidenced by the Senior Secured Notes Documents, any Senior Notes Refinancing Debt, or any 2012 Senior Notes Debt, except (i) mandatory payments of regularly scheduled interestdue thereunder as in effect on the Closing Date (or, fees, expenses and indemnification obligations and, with respect to the extent this Agreement is then 2012 Senior Notes Debt, as in effect, principal effect on the scheduled maturity date thereofof incurrence of such Debt, or as amended thereafter with the consent of the Required Lenders), and (ii) any Permitted Refinancing voluntary prepayments on such Debt in respect of such Subordinated Debt permitted under Section 6.1 and so long as (iii) the conversion of any Subordinated Debt to, or payment with the proceeds of, Equity Interests (each such payment or distribution, a “Restricted Debt Payment”)); provided, however, that any such Subordinated Debt may be repurchased, redeemed, retired, acquired, cancelled or terminated if (w) (AA)(1) no Event of Default exists, (2) Excess Availability is no less than 50% of the aggregate Revolver Commitments immediately after giving effect to any such prepayment, and (3) Borrowers shall have occurred and be continuing delivered to Agent five Business Days prior written notice of any such prepayment accompanied by detailed calculations confirming that Borrowers are in compliance with the requirements set forth in this clause (c)(ii)(A); or would otherwise result therefrom and (B) if Excess Availability is less than 50% of the aggregate principal amount of Revolver Commitments immediately after giving effect to any such repurchases pursuant to this clause prepayment, (w) shall not exceed the Available Basket Amount; (x) the aggregate principal amount of such repurchases under this clause (x) shall not exceed the portion, if any, of the Excluded Contributions that the Borrower elects to apply to this clause (x); (y) at the time of the delivery of the irrevocable notice with respect thereto, the aggregate principal amount of such repurchases pursuant to this clause (y) shall not exceed the greater of $40,000,000 and 2.5% of Total Assets as of the last day of the most recently ended Test Period minus (A) the amount of Restricted Payments made by the Borrower or any Restricted Subsidiary in reliance on clause (n) of the definition of “Permitted Restricted Payments”, minus (B) the outstanding amount of Investments made by the Borrower or any Restricted Subsidiary in reliance on clause (ff) of the definition of “Permitted Investment”; or (z) (A1) no Event of Default shall have occurred and be continuing or would otherwise result therefrom exists, (2) Excess Availability is no less than 20% of the aggregate Revolver Commitments immediately after giving effect to any such repurchases made pursuant to this clause prepayment, (z3) and (B) on a pro forma basis the Total Net Leverage Fixed Charge Coverage Ratio, measured on a Pro Forma Basis, as of the last day of trailing twelve (12) month basis after giving effect to any such prepayment and recomputed for the most recent Fiscal Quarter month for which financial statements have been delivered pursuant to Agent, is at least 1.0 to 1.0, and (4) Borrowers shall have delivered to Agent five Business Days prior written notice of any such prepayment accompanied by detailed calculations confirming that Borrowers are in compliance with the requirements set forth in this clause (c)(ii)(B); and (d) payments (other than those set forth in clause (a) above) on intercompany loans, except payments by an Obligor to a Borrower; provided, however, that for purposes of the foregoing clause (c) this Section 5.2(a10.2.8, no mandatory prepayments shall be made to the extent such prepayments are required on account of sales of Revolver Priority Collateral. For clarification, payments by Parent under the Senior Secured Notes Documents and the documents governing the Senior Notes Refinancing Debt or the 2012 Senior Notes Debt shall not constitute a payment by Borrowers under guarantees of such Debt that would constitute a breach of this Section 10.2.8. Notwithstanding anything contained in this Agreement to the contrary, for purposes of determining the amount of a mandatory prepayment that shall be deemed to be required to be made on account of a sale of Revolver Priority Collateral, such amount shall equal the lesser of (x) or the total proceeds of such sale of Revolver Priority Collateral, and (by) the greater of (i) the value of such assets attributed to the Borrowing Base and (ii) net book value of such assets recorded on the applicable Obligor’s books in accordance with GAAP, in each case for this clause (y), does not exceed 4.0 to 1.0as assessed on the date of such asset sale.”

Restrictions on Payment of Certain Debt. Make any payments (whether voluntary or mandatory, or a prepayment, redemption, retirement, defeasance or acquisition) with respect to any (a) Subordinated Debt, except for regularly scheduled payments of principal, interest and fees, but only to the extent permitted under any subordination agreement relating to such Debt or (b) Borrowed Money (other than the Obligations) prior to its due date under the agreements evidencing such Debt as in effect on the Closing Date or incurred after the Closing Date pursuant to Section 10.2.1, other than: (i) payments payment of regularly scheduled interestinterest and principal payments or reimbursement obligations under letters of credit, feesin each case, expenses as and indemnification obligations and, to the extent this Agreement is then in effect, principal on the scheduled maturity date thereof, (ii) any Permitted Refinancing Debt when due in respect of such Subordinated Borrowed Money; (ii) refinancings of such Borrowed Money to the extent the Borrowed Money incurred in connection therewith is permitted hereunder; (iii) payment of Borrowed Money that is secured that becomes due as a result of (A) any voluntary sale or transfer of any assets (other than assets included in any Borrowing Base) securing such Borrowed Money or (B) any casualty or condemnation proceeding (including a disposition in lieu thereof) of any assets (other than assets included in any Borrowing Base) securing such Borrowed Money; (iv) payments of or in respect of such Borrowed Money solely by issuance of the common stock of Parent; (v) payments of intercompany Debt so long as, with respect to payments of intercompany Debt by an Obligor to a non-Obligor, (x) immediately before and after giving effect to each such payment, the Payment Conditions are satisfied or (y) such payments are made solely from Excluded IP Asset Proceeds deposited in the Excluded IP Asset Proceeds Account and immediately before and after giving effect to each such payment no Default or Event of Default exists; (vi) other payments of or in respect of such Borrowed Money; provided that at the time of and immediately after giving effect thereto the Payment Conditions have been satisfied; and (vii) prepayments of any Borrowed Money permitted under Section 6.1 and 10.2.1 (iiiother than pursuant to clause (b) thereof to the conversion of extent not permitted by the subordination provisions applicable thereto), not to exceed $5,000,000 in any Subordinated Debt to, or payment with the proceeds of, Equity Interests (each such payment or distribution, a “Restricted Debt Payment”))Fiscal Year; provided, however, that any such Subordinated Debt may be repurchased, redeemed, retired, acquired, cancelled no Default or terminated if (w) (A) no Event of Default shall have occurred default exists immediately before and be continuing or would otherwise result therefrom and (B) the aggregate principal amount of such repurchases pursuant after giving effect to this clause (w) shall not exceed the Available Basket Amount; (x) the aggregate principal amount of such repurchases any prepayment under this clause (xvii) shall not exceed the portion, if any, of the Excluded Contributions that the Borrower elects to apply to this clause or (x); (yc) at the time of the delivery of the irrevocable notice earnout or purchase price adjustments with respect thereto, the aggregate principal amount of such repurchases pursuant to this clause (y) shall not exceed the greater of $40,000,000 a Permitted Acquisition unless immediately before and 2.5% of Total Assets as of the last day of the most recently ended Test Period minus (A) the amount of Restricted Payments made by the Borrower or any Restricted Subsidiary in reliance on clause (n) of the definition of “Permitted Restricted Payments”, minus (B) the outstanding amount of Investments made by the Borrower or any Restricted Subsidiary in reliance on clause (ff) of the definition of “Permitted Investment”; or (z) (A) no Event of Default shall have occurred and be continuing or would otherwise result therefrom after giving effect to each such repurchases payment the Payment Conditions are satisfied, other than so long as no Default or Event of Default exists, any such payment made pursuant to this clause (z) and (B) solely from the Total Net Leverage Ratio, on a Pro Forma Basis, as of Excluded IP Asset Proceeds deposited in the last day of the most recent Fiscal Quarter for which financial statements have been delivered pursuant to Section 5.2(a) or (b), does not exceed 4.0 to 1.0Excluded IP Asset Proceeds Account.