Common use of Restricted Payments Clause in Contracts

Restricted Payments. The Borrower and the Parent Guarantors will not, and will not permit any of their respective Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, return any capital to its stockholders or make any distribution of their Property to their respective Equity Interest holders, except (i) the Parent may declare and pay dividends or distributions with respect to its Equity Interests payable solely in additional shares of its Equity Interests (other than Disqualified Capital Stock); (ii) Subsidiaries of the Borrower may declare and pay dividends or distributions ratably with respect to their Equity Interests; (iii) so long as both before and immediately after giving effect to such Restricted Payment, (A) no Default or Event of Default has occurred and is continuing or would result therefrom, (B) the Borrower has unused Commitments of not less than 20% of the total Commitments then in effect and (C) the ratio of Total Debt as of such time (including the effect of any Borrowings or other Debt used to make such Restricted Payment) to EBITDA for the four fiscal quarters ending on the last day of the fiscal quarter immediately preceding the date of determination for which financial statements are available is equal to or less than 3.00 to 1.00, the Borrower may declare and pay cash dividends to the Parent, and the Parent may declare and pay cash dividends to its Equity Interest holders; (iv) if no Default or Event of Default has occurred and is continuing or would exist after giving effect thereto, the repurchase or other acquisition of equity securities, limited partnership interest or units of the Parent not to exceed $2,500,000 in the aggregate since the Eighth Amendment Effective Date, from employees, former employees, directors or former directors of the Parent or its Subsidiaries (or permitted transferees of such employees, former employees, directors or former directors), pursuant to the terms of the agreements (including employment agreements) or plans (or amendments thereto) or other arrangements approved by the board of directors of the Parent under which such equity securities, limited partnership interest or units were granted, issued or sold; and (v) the Borrower may declare and pay dividends or distributions to the Parent in an amount equal to (A) Taxes then due and owing by the Parent and (B) reasonable and customary accounting, public company and other overhead and administrative costs and expenses (exclusive of any markup or premium), including reasonable and customary director’s fees and expenses, incurred by the Parent in the ordinary course of business.

Restricted Payments. The Borrower and the Parent Guarantors will not, and will not permit any of their respective its Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Paymentdividend on any class of its stock, return any capital to its stockholders or make any distribution payment on account of, or set apart assets for a sinking or other analogous fund for, the purchase, redemption, retirement, defeasance or other acquisition of, any shares of their Property common stock or Indebtedness subordinated to their respective Equity Interest holdersthe Obligations of the Borrower or any Guarantee thereof or any options, warrants, or other rights to purchase such common stock or such Indebtedness, whether now or hereafter outstanding (each, a “Restricted Payment”), except for (i) dividends payable by the Parent may declare and pay dividends or distributions with respect to its Equity Interests payable Borrower solely in additional shares of any class of its Equity Interests (other than Disqualified Capital Stock); common stock, (ii) Subsidiaries of Restricted Payments made by any Subsidiary to the Borrower may declare or to another Subsidiary, on at least a pro rata basis with any other shareholders if such Subsidiary is not wholly owned by the Borrower and pay dividends or distributions ratably with respect to their Equity Interests; other wholly owned Subsidiaries, (iii) so long as both before cash dividends and immediately after giving effect to such Restricted Paymentdistributions paid on the common stock of the Borrower; provided, for the purpose of this clause (Aiii) that (x) no Default or Event of Default has occurred and is continuing at the time such dividend or would result therefromdistribution is paid or redemption is made, and (By) the aggregate amount of all such Restricted Payments made by the Borrower has unused Commitments of in any Fiscal Year does not less than exceed (1) 20% of Net Income (if greater than $0) earned during the total Commitments then in effect immediately preceding Fiscal Year, plus (2) Capital Stock repurchases permitted by this Agreement, plus (3) Restricted Payments arising out of the purchase by the Company of its Capital Stock from beneficiaries of the Company’s employee stock ownership plan, to the extent that such Restricted Payments are simultaneously deducted as an operating expense of the Company under GAAP, and (C4) Restricted Payments required to be made to the ratio of Total Debt as of such time (including Borrower’s employee stock ownership plan under ERISA. Notwithstanding anything to the effect of any Borrowings or other Debt used contrary contained in this section, distributions paid by Techrizon to make such its members prior to the Techrizon Acquisition shall not be deemed to be Restricted Payment) to EBITDA for the four fiscal quarters ending on the last day of the fiscal quarter immediately preceding the date of determination for which financial statements are available is equal to or less than 3.00 to 1.00Payments, the Borrower may declare and pay cash dividends to the Parent, and the Parent may declare and pay cash dividends to its Equity Interest holders; (iv) if no Default or Event payment of Default has occurred and which is continuing or would exist after giving effect thereto, the repurchase or other acquisition of equity securities, limited partnership interest or units of the Parent not to exceed $2,500,000 in the aggregate since the Eighth Amendment Effective Date, from employees, former employees, directors or former directors of the Parent or its Subsidiaries (or permitted transferees of such employees, former employees, directors or former directors), pursuant to the terms of the agreements (including employment agreements) or plans (or amendments thereto) or other arrangements approved by the board of directors of the Parent under which such equity securities, limited partnership interest or units were granted, issued or sold; and (v) the Borrower may declare and pay dividends or distributions to the Parent in an amount equal to (A) Taxes then due and owing by the Parent and (B) reasonable and customary accounting, public company and other overhead and administrative costs and expenses (exclusive of any markup or premium), including reasonable and customary director’s fees and expenses, incurred by the Parent in the ordinary course of businessrestricted hereby.

Restricted Payments. The Borrower and the Parent Guarantors will not, and will not permit any of their respective its Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, return any capital to its stockholders or make any distribution of their Property to their respective Equity Interest holders, except (ia) the Parent Borrower may declare and pay dividends or distributions with respect to its Equity Interests payable solely in additional shares of its Equity Interests common stock, (other than Disqualified Capital Stock); (iib) Subsidiaries of the Borrower may declare and pay dividends or distributions ratably with respect to their Equity Interests; , (c) the Borrower may make Restricted Payments pursuant to and in accordance with stock option and benefits plans, including, without limitation, (i) cashless exercises of any such options, (ii) the delivery to Borrower of shares of Borrower’s common stock or restricted stock units by directors, management and employees of the Borrower or any Subsidiary thereof to cover tax withholding obligations associated with grants or exercises of stock options, restricted stock, restricted stock units or other equity-based awards, as well as other Restricted Payments pursuant to and in accordance with option plans or other benefit plans for management or employees of the Borrower and its Subsidiaries and (iii) so long as both before no Event of Default is then outstanding or would result therefrom, the purchase of the Borrower’s common stock on the open market and immediately after giving effect the re-issuance of such common stock to such Restricted Paymentofficers and employees of the Borrower in connection with incentive compensation plans or other agreements with officers, directors or employees of the Borrower approved by the Board of Directors of the Borrower, option plans or other benefit plans for management or employees of the Borrower and its Subsidiaries, (Ad) the Borrower may exchange an Equity Interest of the Borrower for another Equity Interest of the Borrower, (e) subject to compliance with all covenants, limitations and restrictions governing consolidations, mergers and/or asset transfers set forth in the Loan Documents, the Borrower may make payments or distributions to dissenting stockholders pursuant to applicable law or in connection with the settlement or other satisfaction of legal claims made pursuant to or in connection with a consolidation, merger or transfer of assets; (f) the Borrower may make cash payments in lieu of the issuance of fractional shares and (g) the Borrower and its Subsidiaries may make any other Restricted Payment so long as (1) no Default or Event of Default has occurred and is continuing prior to making such Restricted Payment or would result therefrom, (B) the Borrower has unused Commitments of not less than 20% of the total Commitments then in effect and (C) the ratio of Total Debt as of such time (including the effect of any Borrowings or other Debt used to make such Restricted Payment) to EBITDA for the four fiscal quarters ending on the last day of the fiscal quarter immediately preceding the date of determination for which financial statements are available is equal to or less than 3.00 to 1.00, the Borrower may declare and pay cash dividends to the Parent, and the Parent may declare and pay cash dividends to its Equity Interest holders; (iv) if no Default or Event of Default has occurred and is continuing or would exist arise after giving effect (including giving effect on a Pro Forma Basis) thereto, and (2) the repurchase or other acquisition aggregate amount of equity securities, limited partnership interest or units all such Restricted Payments does not exceed 50% of cumulative Consolidated Net Income of the Parent not to exceed $2,500,000 in the aggregate Borrower since the Eighth Amendment Effective DateJanuary 31, from employees, former employees, directors or former directors of the Parent or its Subsidiaries (or permitted transferees of such employees, former employees, directors or former directors), pursuant to the terms of the agreements (including employment agreements) or plans (or amendments thereto) or other arrangements approved by the board of directors of the Parent under which such equity securities, limited partnership interest or units were granted, issued or sold; and (v) the Borrower may declare and pay dividends or distributions to the Parent in an amount equal to (A) Taxes then due and owing by the Parent and (B) reasonable and customary accounting, public company and other overhead and administrative costs and expenses (exclusive of any markup or premium), including reasonable and customary director’s fees and expenses, incurred by the Parent in the ordinary course of business2011.

Restricted Payments. The Borrower and the Parent Guarantors will not, and will not permit any of their respective Subsidiaries to, declare or make, or agree to pay or make, directly Directly or indirectly, declare, order, make or set apart any sum for or pay any Restricted Payment, return except (a) to make dividends payable solely in the same class of Equity Interests of such Person, (b) any capital Subsidiary may make dividends or other distributions payable to its stockholders the Company (directly or indirectly through Subsidiaries), (c) any Foreign Subsidiary may make any distribution dividends or other distributions payable to the Company, the Dutch Borrower, Checkpoint Systems Europe GmbH or Checkpoint Systems Holding GmbH (directly or indirectly through Subsidiaries), (d) each of their Property Checkpoint Systems Europe GmbH and/or Checkpoint Systems Holding GmbH may make compensatory payments to their respective Equity Interest holdersSubsidiaries if and to the extent required under any domination and/or profit and loss pooling agreement (Beherrschungs- und/oder Ergebnisabfuhrungsvertrag) with such Subsidiary and (e) the Company may make other Restricted Payments so long as, except after giving effect thereto (i) the Parent may declare and pay dividends on a Pro Forma Basis, no Default or distributions with respect to its Equity Interests payable solely in additional shares Event of its Equity Interests (other than Disqualified Capital Stock); Default shall then exist or would exist after giving effect thereto, (ii) Subsidiaries the Credit Parties certify to the Administrative Agent and the Lenders that the Credit Parties will be in compliance on a Pro Forma Basis with all of the Borrower may declare terms and pay dividends or distributions ratably with respect to their Equity Interests; provisions of the financial covenants set forth in Section 5.9, (iii) so long as both before immediately after the making of such Restricted Payment (A) the Credit Parties shall have at least $50,000,000 (or the Foreign Currency Equivalent thereof) of cash on deposit in readily available funds (without causing any adverse tax consequences) and/or the ability to borrow under this Agreement without causing a violation of any covenant and immediately (B) the Borrowers (in the aggregate) shall have the ability (but shall not be required) to borrow at least $20,000,000 (or the Foreign Currency Equivalent thereof) under this Agreement without causing a Default or Event of Default and (iv) after giving effect to such Restricted Payment, (A) no Default or Event of Default has occurred and is continuing or would result therefrom, (B) the Borrower has unused Commitments of not Leverage Ratio shall be less than 20% of the total Commitments then in effect and (C) the ratio of Total Debt as of such time (including the effect of any Borrowings or other Debt used 2.00 to make such Restricted Payment) to EBITDA for the four fiscal quarters ending 1.0 on the last day of the fiscal quarter immediately preceding the date of determination for which financial statements are available is equal to or less than 3.00 to 1.00, the Borrower may declare and pay cash dividends to the Parent, and the Parent may declare and pay cash dividends to its Equity Interest holders; (iv) if no Default or Event of Default has occurred and is continuing or would exist after giving effect thereto, the repurchase or other acquisition of equity securities, limited partnership interest or units of the Parent not to exceed $2,500,000 in the aggregate since the Eighth Amendment Effective Date, from employees, former employees, directors or former directors of the Parent or its Subsidiaries (or permitted transferees of such employees, former employees, directors or former directors), pursuant to the terms of the agreements (including employment agreements) or plans (or amendments thereto) or other arrangements approved by the board of directors of the Parent under which such equity securities, limited partnership interest or units were granted, issued or sold; and (v) the Borrower may declare and pay dividends or distributions to the Parent in an amount equal to (A) Taxes then due and owing by the Parent and (B) reasonable and customary accounting, public company and other overhead and administrative costs and expenses (exclusive of any markup or premium), including reasonable and customary director’s fees and expenses, incurred by the Parent in the ordinary course of businessa Pro Forma Basis.

Restricted Payments. The Borrower and the Parent Guarantors will shall not, and will shall not permit any of their respective Subsidiaries other Credit Party to, declare or make, or agree to pay or make, directly or indirectly, make or cause to be made any of the following payments (collectively, the "Restricted PaymentPayments") except as otherwise expressly permitted by this Section 7.6 or with the approval of the Required Lenders in their sole and absolute discretion: (a) declare or pay any dividend (other than dividends payable solely in common or preferred stock of Borrower or dividends payable to the Borrower by any Subsidiary) on, return any capital to its stockholders or make any payment on account of, or set apart assets for a sinking or other analogous fund for, the purchase, redemption, defeasance, retirement or other acquisition of, any Capital Stock of any Credit Party, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of their Property to their respective Equity Interest holdersany Credit Party, except for the minimum dividends and distributions required to maintain Borrower's status as a REIT; (b) make any optional payment or prepayment on or redemption (including, without limitation, by making payments to a sinking or analogous fund) or repurchase of any Indebtedness (other than Indebtedness pursuant to this Agreement or Indebtedness owing to Borrower from one of its Subsidiaries) or of any Mandatory Redeemable Obligation; (c) make any payment, whether of principal or interest, on account of any Indebtedness of any Credit Party which Indebtedness is subordinate to the Loan; or (d) make any payments to Investment Manager pursuant to the Advisory Agreement or otherwise. Notwithstanding the foregoing, Borrower may make any Restricted Payments that would otherwise become payable in the ordinary course of Borrower's business, provided that: (i) the Parent may declare and pay dividends or distributions with respect to its Equity Interests payable solely in additional shares of its Equity Interests (other than Disqualified Capital Stock); (ii) Subsidiaries of the Borrower may declare and pay dividends or distributions ratably with respect to their Equity Interests; (iii) so long as both before and immediately after giving effect to making such Restricted Payment, (A) Payment no Default or Event of Default has occurred and is continuing shall exist under this Agreement or would result therefrom, (B) the Borrower has unused Commitments of not less than 20% any of the total Commitments then in effect other Credit Documents; and (Cii) even after the ratio making of Total Debt as of such time (including the effect of any Borrowings or other Debt used to make such Restricted Payment) , Borrower shall be holding Cash Equivalents in an amount sufficient to EBITDA for pay the four fiscal quarters ending next installment of interest to become due under this Agreement after first taking into account all other payments required to be made by or to Borrower on the last day of the fiscal quarter immediately preceding or before the date such payment of determination for which financial statements interest is due. Nothing in this paragraph shall prohibit a Subsidiary that is not a Wholly-Owned Subsidiary from paying required minimum payments that must be made to partners or members who are available is equal to or less than 3.00 to 1.00, the Borrower may declare and pay cash dividends to the Parent, and the Parent may declare and pay cash dividends to its Equity Interest holders; (iv) if no Default or Event of Default has occurred and is continuing or would exist after giving effect thereto, the repurchase or other acquisition of equity securities, limited partnership interest or units of the Parent not to exceed $2,500,000 in the aggregate since the Eighth Amendment Effective Date, from employees, former employees, directors or former directors of the Parent or its Subsidiaries (or permitted transferees of such employees, former employees, directors or former directors)Credit Parties, pursuant to the terms of the agreements (including employment agreements) or plans (or amendments thereto) or other arrangements approved by the board organizational documents of directors of the Parent under which such equity securities, limited partnership interest or units were granted, issued or sold; and (v) the Borrower may declare and pay dividends or distributions to the Parent in an amount equal to (A) Taxes then due and owing by the Parent and (B) reasonable and customary accounting, public company and other overhead and administrative costs and expenses (exclusive of any markup or premium), including reasonable and customary director’s fees and expenses, incurred by the Parent in the ordinary course of businessSubsidiary.

Restricted Payments. The Borrower and the Parent Guarantors Company will not, and nor will not it permit any of their respective its Restricted Subsidiaries to, declare or make, or agree make any Restricted Payment at any time; other than: (a) Restricted Payments may be made to Holdings in order to allow Holdings to pay or makedividends on its Series AA Preferred Stock in any single fiscal year in an aggregate amount up to $500,000 (and such dividend payments may be prefunded in an aggregate amount up to $2,000,000), directly or indirectly, any Restricted Payment, return any capital to its stockholders or make any distribution of their Property to their respective Equity Interest holders, except (i) the Parent may declare and pay dividends or distributions with respect to its Equity Interests payable solely in additional shares of its Equity Interests so long as no Default (other than Disqualified Capital Stock)a Default under clause (c) or (d) of Article VIII) shall have occurred and be continuing; (iib) Subsidiaries Restricted Payments consisting of the Borrower may declare retirement of employee stock options and pay dividends other Equity Rights upon the death, retirement or distributions ratably with respect to their Equity Interests; (iii) termination of employment of officers and employees in an aggregate amount in any fiscal year not exceeding $3,000,000, so long as both before at the time thereof and immediately after giving effect to such Restricted Payment, (A) no Default or Event of Default has occurred and is continuing or would result therefrom, (B) the Borrower has unused Commitments of not less than 20% of the total Commitments then in effect and (C) the ratio of Total Debt as of such time (including the effect of any Borrowings or other Debt used to make such Restricted Payment) to EBITDA for the four fiscal quarters ending on the last day of the fiscal quarter immediately preceding the date of determination for which financial statements are available is equal to or less than 3.00 to 1.00, the Borrower may declare and pay cash dividends to the Parent, and the Parent may declare and pay cash dividends to its Equity Interest holders; (iv) if no Default or Event of Default has occurred and is continuing or would exist after giving effect thereto, no Default shall have occurred and be continuing; (c) the repurchase entering into by the Company of Equity Hedging Arrangements, so long as the aggregate maximum contingent or other acquisition potential liability thereunder shall not on any date exceed $12,000,000 minus the aggregate amount in fact paid by the Company under all Equity Hedging Arrangements during the period commencing on the Third Restatement Effective Date and ending on such date; (d) Restricted Payments by the Company to enable Holdings to make payments in respect of equity securitiesQualified Holdings Obligations; (e) so long as no Default has occurred or is continuing and if after giving effect thereto the Company would be in compliance with Section 7.09 and the Total Debt Ratio would be less than 6.50 to 1.0, limited partnership interest Restricted Payments by the Company from the Cumulative Credit, (f) with respect to any taxable year for which Holdings (or units its successor) is not intended to be treated as a REIT and so long as Holdings (or its direct or indirect parent) is the common parent of a consolidated, combined, unitary, affiliated or similar group (“Tax Group”) of which the Borrower or any of its Subsidiaries is a member, Restricted Payments may be made to Holdings to pay the portion of the Parent not tax liability of such Tax Group that is attributable to exceed $2,500,000 in the aggregate since the Eighth Amendment Effective Date, from employees, former employees, directors or former directors of the Parent or Borrower and/or its Subsidiaries (or permitted transferees as applicable), to the extent the tax liability does not exceed the amount of such employeestaxes that would have been payable by the Borrower and/or its applicable Subsidiaries on a stand-alone basis, former employeesreduced by any such payments paid or to be paid directly by the Borrower or its Subsidiaries, directors or former directors), pursuant provided that to the terms extent any such Restricted Payment is attributable to a Unrestricted Subsidiary, the payment shall be limited to the actual tax payment made by such Unrestricted Subsidiary to the Borrower or any of the agreements (including employment agreements) or plans (or amendments thereto) or other arrangements approved by the board of directors of the Parent under which such equity securities, limited partnership interest or units were granted, issued or soldits Restricted Subsidiaries; and (vg) with respect to any taxable year for which Holdings (or its successor) is intended to be treated as a REIT, notwithstanding any other limitation hereunder (except as set forth in the Borrower may declare and pay dividends or distributions to the Parent following sentence), Restricted Payments in an aggregate amount equal to (i) the taxable income of Holdings as determined for purposes of Section 857 of the Code (but without regard for any deduction for dividends paid) and (ii) any additional amounts as may be necessary for Holdings to (A) Taxes then due qualify and owing remain qualified for taxation as a REIT, such as the minimum amount required to be distributed by Holdings to its shareholders to satisfy the Parent requirement in Section 857(a)(2)(B) of the Code that Holdings distribute all of its accumulated earnings and profits accumulated in any non-REIT taxable years and (B) reasonable avoid entity level income Tax under Section 857 of the Code or excise Tax under Section 4981 of the Code. Notwithstanding the foregoing, no Restricted Payment shall be permitted under the foregoing clause (g) if (x) any Event of Default under clause (a) of Article VIII shall have occurred and customary accountingbe continuing based on the failure of any Borrower to pay any principal of, public company or interest on, any Loan or any reimbursement obligation in respect of any LC Disbursement, or any fee or other amount payable under this Agreement, when and as the same shall become due and payable and, in the case of payments of any interest, reimbursement obligations or fees, such failure continues unremedied for a period of five (5) Business Days or (y) any Event of Default under clause (g) or (h) of Article VIII shall have occurred and be continuing. Nothing herein shall be deemed to prohibit the payment of any dividend or distribution by any Subsidiary of the Company so long as such dividends or distributions are declared and paid ratably to the shareholders, partners and other overhead and administrative costs and expenses (exclusive equity holders of any markup or premium), including reasonable and customary director’s fees and expenses, incurred by the Parent in the ordinary course of businesssuch Subsidiary.

Restricted Payments. The Borrower and the Parent Guarantors will Company shall not, and will not nor shall it permit any of their respective Subsidiaries Subsidiary to, make or declare or make, or agree to pay or make, directly or indirectly, any Restricted PaymentPayments (other than Restricted Payments by a Subsidiary to the Company or another Wholly-Owned Subsidiary) except that so long as no Default or Unmatured Default then exists, return any capital to the Company and its stockholders or make any distribution of their Property to their respective Equity Interest holders, except Subsidiaries may (i) repurchase shares from its employees, officers or directors pursuant to any vesting provisions with respect thereto; (ii) make Restricted Payments not to exceed (x) in any twelve month period, an aggregate amount equal to fifty percent (50%) of Net Income plus, to the Parent may declare extent deducted in determining Net Income for such period, non-cash expenses in respect of stock options, in each case, for the previous twelve month period and pay dividends (y) subject to pro forma compliance with the Fixed Charge Coverage Ratio, an additional $50,000,000 over the term of this Agreement; (iii) make acquisitions of Capital Stock of the Company in connection with the exercise of stock options or stock appreciation rights by way of cashless exercise or in connection with the satisfaction of withholding tax obligations; (iv) purchase of fractional shares of the Capital Stock of the Company arising out of stock dividends, splits or combinations or business combinations; (v) in connection with any Permitted Acquisition, (A) receive or accept the return to the Company or any of its Subsidiaries of Capital Stock of the Company or any of its Subsidiaries constituting a portion of the purchase price consideration in settlement of indemnification claims or (B) make payments or distributions with respect to its Equity Interests payable solely in additional shares dissenting stockholders pursuant to applicable law; (vi) honor any conversion request by a holder of any Convertible Indebtedness of the Company or any of its Equity Interests Subsidiaries, and make cash payments in lieu of fractional shares in connection with the conversion of such Convertible Indebtedness; (vii) purchase, redeem, repurchase, defease, acquire or retire for value Capital Stock or Subordinated Indebtedness of the Company or any of its Subsidiaries in exchange for, upon conversion of, or out of the proceeds of, the substantially concurrent sale of Capital Stock of the Company (other than Disqualified Capital Stock); (ii) Subsidiaries of the Borrower may declare and pay dividends whether contemporaneously or distributions ratably with respect to their Equity Interests; (iii) so long as both before and immediately after giving effect to such Restricted Payment, (A) no Default or Event of Default has occurred and is continuing or would result therefrom, (B) the Borrower has unused Commitments of not less than 20% of the total Commitments then in effect and (C) the ratio of Total Debt as of such time (including the effect of any Borrowings or other Debt used to make such Restricted Payment) to EBITDA for the four fiscal quarters ending on the last day of the fiscal quarter immediately preceding the date of determination for which financial statements are available is equal to or less than 3.00 to 1.00, the Borrower may declare and pay cash dividends to the Parent, and the Parent may declare and pay cash dividends to its Equity Interest holders; (iv) if no Default or Event of Default has occurred and is continuing or would exist after giving effect thereto, the repurchase or other acquisition of equity securities, limited partnership interest or units of the Parent not to exceed $2,500,000 in the aggregate since the Eighth Amendment Effective Date, from employees, former employees, directors or former directors of the Parent or its Subsidiaries (or permitted transferees of such employees, former employees, directors or former directors), pursuant to the terms of the agreements (including employment agreements) or plans (or amendments thereto) or other arrangements approved by the board of directors of the Parent under which such equity securities, limited partnership interest or units were granted, issued or soldfuture; and (vviii) purchase, redeem, repurchase, defease, acquire or retire for value any Subordinated Indebtedness in exchange for, or out of the Borrower may declare and pay dividends or distributions proceeds of, any Subordinated Indebtedness incurred to the Parent in an amount equal to (A) Taxes then due and owing by the Parent and (B) reasonable and customary accounting, public company and other overhead and administrative costs and expenses (exclusive of any markup or premium), including reasonable and customary director’s fees and expenses, incurred by the Parent in the ordinary course of businessrefinance such Subordinated Indebtedness.

Restricted Payments. The Borrower and the Parent Guarantors will not, and will not permit any of their respective its Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, return any capital to its stockholders or make any distribution of their Property to their respective Equity Interest holders, except (i) the Parent Borrower may declare and pay dividends or distributions with respect to its Equity Interests payable solely in additional shares of its Equity Interests (other than Disqualified Capital Stock); , (ii) Subsidiaries of the Borrower may declare and pay dividends or distributions ratably with respect to their Equity Interests; , (iii) so long as both before and immediately after giving effect to such Restricted Payment, (A) no Default or Event of Default has occurred and is continuing or would result therefrom, (B) the Borrower has unused Commitments of not less than 2015% of the total Commitments then in effect and (C) the ratio of Total Debt as of such time (including the effect of any Borrowings or other Debt used to make such Restricted Payment) to EBITDA for the four fiscal quarters ending on the last day of the fiscal quarter immediately preceding the date of determination for which financial statements are available is equal to or less than 3.00 4.00 to 1.00, the Borrower may declare and pay cash dividends to the Parent, and the Parent may declare and pay cash dividends to its Equity Interest holdersholders of Available Cash in accordance with the Partnership Agreement; provided that such distributions shall not exceed 90% of the aggregate amount of Available Cash in any 12 consecutive month period, (iv) if no Default or Event of Default has occurred and is continuing or would exist after giving effect thereto, the repurchase or other acquisition of equity securities, limited partnership interest or units of the Parent Borrower not to exceed $2,500,000 in the aggregate since the Eighth Amendment Effective Date, from employees, former employees, directors or former directors of the Parent Borrower or its Subsidiaries (or permitted transferees of such employees, former employees, directors or former directors), pursuant to the terms of the agreements (including employment agreements) or plans (or amendments thereto) or other arrangements approved by the board of directors general partner of the Parent Borrower under which such equity securities, limited partnership interest or units were granted, issued or sold; sold and (v) the Borrower may declare redeem, repurchase or otherwise acquire preferred equity securities, preferred limited partnership interests or preferred units of the Borrower from the holders thereof: (1) with the Net Cash Proceeds of any sale of Equity Interests (other than Disqualified Capital Stock) of the Borrower or in exchange solely for Equity Interests (other than Disqualified Capital Stock) of the Borrower or (2) so long as both before and pay dividends immediately after giving effect to such redemption, repurchase or distributions to the Parent in an amount equal to acquisition, (A) Taxes then due no Default or Event of Default has occurred and owing by the Parent and is continuing or would result therefrom, (B) reasonable the Borrower has unused Commitments of not less than 15% of the total Commitments then in effect and customary accounting, public company and other overhead and administrative costs and expenses (exclusive C) the ratio of any markup Total Debt as of such time to EBITDA for the four fiscal quarters ending on the last day of the fiscal quarter immediately preceding the date of determination for which financial statements are available is equal to or premium), including reasonable and customary director’s fees and expenses, incurred by the Parent in the ordinary course of businessless than 4.00 to 1.00.

Restricted Payments. The Borrower and the Parent Guarantors will not, and nor will not it permit any of their respective Subsidiaries Restricted Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, return any capital to its stockholders or make any distribution of their Property to their respective Equity Interest holders, except (ia) the Parent may declare and pay dividends or distributions with respect to its Equity Interests make Restricted Payments payable solely in additional shares of its Equity Interests common stock or Permitted Preferred Stock (including options, warrants and other rights to purchase shares of such common stock or Permitted Preferred Stock), (b) the Parent may make Restricted Payments in cash out of the Net Proceeds of a substantially concurrent issuance of its common stock or Permitted Preferred Stock (or options, warrants and other rights to purchase shares of such common stock or Permitted Preferred Stock) (other than Disqualified Capital common stock or Permitted Preferred Stock (or options, warrants and other rights to purchase shares of such common stock or Permitted Preferred Stock) issued to and paid for by a Subsidiary); , (iic) Restricted Subsidiaries of the Borrower may declare and pay dividends or and distributions ratably with respect to their Equity Interests; (iii) so long as both before and immediately after giving effect to such Restricted Paymentcommon stock, (Ad) no Default or Event the Parent and the Restricted Subsidiaries may make regularly scheduled payments of Default has occurred principal of and is continuing or would result therefrominterest on Subordinated Indebtedness as and when due, subject to the subordination provisions thereof, and may refinance Subordinated Indebtedness in accordance with clause (vi) of Section 6.01(a), (Be) the Borrower has unused Commitments payments made in respect of not less than 20% dissenters' rights in respect of shares of capital stock of a Person acquired pursuant to a Permitted Acquisition, provided that such payments are treated as cash consideration for such Permitted Acquisition, and (f) payments made in lieu of issuance of fractional shares of common stock of the total Commitments then in effect and (C) Parent upon the ratio of Total Debt as of such time (including the effect conversion of any Borrowings Indebtedness or other Debt used to make such Restricted Payment) to EBITDA for the four fiscal quarters ending on the last day Permitted Preferred Stock into shares of the fiscal quarter immediately preceding the date common stock of determination for which financial statements are available is equal to or less than 3.00 to 1.00, the Borrower may declare and pay cash dividends to the Parent, and the Parent may declare and pay cash dividends to its Equity Interest holders; (iv) if no Default or Event of Default has occurred and is continuing or would exist after giving effect thereto, the repurchase or other acquisition of equity securities, limited partnership interest or units of the Parent not to exceed $2,500,000 in the aggregate since the Eighth Amendment Effective Date, from employees, former employees, directors or former directors of the Parent or its Subsidiaries (or permitted transferees of any such employees, former employees, directors or former directors), pursuant to case in accordance with the terms of the agreements (including employment agreements) such Indebtedness or plans (or amendments thereto) or other arrangements approved by the board of directors of the Parent under which such equity securities, limited partnership interest or units were granted, issued or sold; and (v) the Borrower may declare and pay dividends or distributions to the Parent in an amount equal to (A) Taxes then due and owing by the Parent and (B) reasonable and customary accounting, public company and other overhead and administrative costs and expenses (exclusive of any markup or premium), including reasonable and customary director’s fees and expenses, incurred by the Parent in the ordinary course of businessPermitted Preferred Stock.

Restricted Payments. The Borrower and the Parent Guarantors will not, and will not permit any of their respective its Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, return any capital to its stockholders or make any distribution of their Property to their respective Equity Interest holders, except (ia) the Parent Borrower may declare and pay dividends or distributions with respect to its Equity Interests Interests, or make any other Restricted Payment, payable solely in additional shares of its Equity Interests common stock, (other than Disqualified Capital Stock); (iib) Subsidiaries of the Borrower may declare and pay dividends or distributions ratably with respect to their Equity Interests; , (iiic) the Borrower may make Restricted Payments pursuant to and in accordance with stock option plans or other benefit plans for management or employees of the Borrower and its Subsidiaries, (d) so long as both before as, at the time any such Restricted Payment is made and immediately after giving effect (including pro forma effect) thereto (and to the incurrence of any Indebtedness in connection therewith) no Default or Event of Default shall have occurred and is continuing, the Borrower and its Subsidiaries may make Restricted Payments in an aggregate amount equal to a portion of the Available Amount on the date of such election that the Borrower elects to apply to this Section 6.07(d), (e) so long as, at the time any such Restricted PaymentPayment is made and immediately after giving effect (including pro forma effect) thereto (and to the incurrence of any Indebtedness in connection therewith) (i) no Default or Event of Default shall have occurred and is continuing and (ii) the Total Leverage Ratio is not greater than 2.50 to 1.00, the Borrower and its Subsidiaries may make other Restricted Payments, (Af) the Borrower and any Subsidiaries may make cash payments in lieu of the issuance of fractional shares in connection with the exercise or conversion of Equity Equivalents, (g) the Borrower and any Subsidiaries may repurchase (i) Equity Interests upon the exercise of Equity Equivalents if such Equity Interests represent a portion of the exercise price of such Equity Equivalents and (ii) Equity Interests from any current or former officer, director, employee or consultant to comply with Tax withholding obligations relating to Taxes payable by such person upon the grant or award of such Equity Interests (or upon vesting thereof), (h) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, (B) the Borrower has unused Commitments of not less than 20% of the total Commitments then in arise after giving effect and (C) the ratio of Total Debt as of such time (including the effect of any Borrowings or other Debt used to make such Restricted Paymentpro forma effect) to EBITDA for the four fiscal quarters ending on the last day of the fiscal quarter immediately preceding the date of determination for which financial statements are available is equal to or less than 3.00 to 1.00thereto, the Borrower and any Subsidiaries may declare and pay cash dividends to the Parent, and the Parent may declare and pay cash dividends to its purchase Equity Interest holders; (iv) if no Default Interests from present or Event of Default has occurred and is continuing or would exist after giving effect thereto, the repurchase or other acquisition of equity securities, limited partnership interest or units of the Parent not to exceed $2,500,000 in the aggregate since the Eighth Amendment Effective Date, from employees, former employeesofficers, directors or former directors employees of the Parent Borrower or any Subsidiary upon the death, disability, retirement or termination of employment or service of such officer, director or employee, in an aggregate amount not exceeding $5,000,000 in any fiscal year of the Borrower and (i) any Restricted Payments in connection with any Permitted Call Spread Swap Agreements (other than cash, in excess of any cash payable in respect of a concurrent settlement of a Bond Hedge Transaction, that is required to be paid under a Warrant Transaction as a result of the election of “cash settlement” (or substantially equivalent term) as the “settlement method” (or substantially equivalent term) thereunder by the Borrower (or its Subsidiaries (or permitted transferees of such employees, former employees, directors or former directors), pursuant to the terms of the agreements Affiliate) (including employment agreements) in connection with the exercise and/or early unwind or plans (or amendments thereto) or other arrangements approved by the board of directors of the Parent under which such equity securities, limited partnership interest or units were granted, issued or sold; and (v) the Borrower may declare and pay dividends or distributions to the Parent in an amount equal to (A) Taxes then due and owing by the Parent and (B) reasonable and customary accounting, public company and other overhead and administrative costs and expenses (exclusive of any markup or premiumsettlement thereof), including reasonable and customary director’s fees and expenses, incurred by the Parent in the ordinary course of business).

Restricted Payments. The Borrower and the Parent Guarantors will not, and will not permit any of their respective the Restricted Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, return any capital to its stockholders holders of Equity Interests or make any distribution of their its Property to their respective its Equity Interest holdersholders without the prior approval of the Majority Lenders, except that (i) the Parent Borrower may pay dividends and distributions to its Equity Holders, if and to the extent that (A) such dividend or distribution is paid within 60 days after the date of declaration thereof, (B) as of the date of such declaration, no Default, Event of Default or Borrowing Base Deficiency existed, and (C) as of the date of such declaration, if such dividend or distribution had been made as of such date of declaration, after giving effect thereto, no Default, Event of Default or Borrowing Base Deficiency would have existed, (ii) the Borrower and the Restricted Subsidiaries may declare and pay dividends or distributions with respect to its Equity Interests payable solely in additional shares of its Equity Interests (other than Disqualified Capital Stock); , (iiiii) Subsidiaries any Restricted Subsidiary of the Borrower may declare and pay dividends or distributions ratably with respect to their its Equity Interests; (iii) so long as both before and immediately after giving effect to such Restricted Payment, (A) no Default or Event of Default has occurred and is continuing or would result therefrom, (Biv) the Borrower has unused Commitments of not less than 20% of and the total Commitments then Restricted Subsidiaries may make Restricted Payments pursuant to and in effect and (C) the ratio of Total Debt as of such time (including the effect of any Borrowings accordance with stock option plans or other Debt used to make such Restricted Payment) to EBITDA benefit plans for the four fiscal quarters ending on the last day of the fiscal quarter immediately preceding the date of determination for which financial statements are available is equal to or less than 3.00 to 1.00management, the Borrower may declare and pay cash dividends to the Parent, and the Parent may declare and pay cash dividends to its Equity Interest holders; (iv) if no Default or Event of Default has occurred and is continuing or would exist after giving effect thereto, the repurchase or other acquisition of equity securities, limited partnership interest or units of the Parent not to exceed $2,500,000 in the aggregate since the Eighth Amendment Effective Date, from employees, former employees, directors or former directors and consultants of the Parent or Borrower and its Subsidiaries (or permitted transferees of such employeesSubsidiaries, former employees, directors or former directors), pursuant to the terms of the agreements (including employment agreements) or plans (or amendments thereto) or other arrangements approved by the board of directors of the Parent under which such equity securities, limited partnership interest or units were granted, issued or sold; and (v) the Borrower may declare and pay dividends or distributions to the Parent consisting of Equity Interests in an amount equal to (A) Taxes then due and owing by the Parent and (B) reasonable and customary accounting, public company and other overhead and administrative costs and expenses (exclusive of any markup or premium), including reasonable and customary director’s fees and expenses, incurred by the Parent in the ordinary course of businessUnrestricted Subsidiaries.

Restricted Payments. The Borrower and the Parent Guarantors Credit Parties will not, and nor will not they permit any of their respective Subsidiaries Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, declare, order, make or set apart any sum for or pay any Restricted Payment, return any capital to its stockholders or make any distribution of their Property to their respective Equity Interest holders, except (ia) the Parent may declare and pay to make dividends or distributions with respect to its Equity Interests payable solely in additional shares the same class of Equity Interest of such Person, (b) to make dividends or other distributions payable to the Credit Parties (directly or indirectly through its Equity Interests Subsidiaries), (other than Disqualified Capital Stock); c) dividends in an aggregate amount equal to the portion, if any, of the Cumulative Credit on such date that the Borrower elects to apply to this clause (iic) Subsidiaries of Section 6.10, such election to be specified in a written notice of a Responsible Officer of the Borrower may declare and pay dividends or distributions ratably with respect to their Equity Interests; (iii) so long as both before and calculating in reasonable detail the amount of Cumulative Credit immediately after giving effect prior to such Restricted Paymentelection and the amount thereof elected to be so applied; provided, (A) that no Default or Event of Default has occurred and is continuing or would result therefromtherefrom and, (B) the Borrower has unused Commitments of not less than 20% of the total Commitments then in effect and (C) the ratio of Total Debt as of such time (including the effect of any Borrowings or other Debt used to make such Restricted Payment) to EBITDA for the four fiscal quarters ending on the last day of the fiscal quarter immediately preceding the date of determination for which financial statements are available is equal to or less than 3.00 to 1.00, the Borrower may declare and pay cash dividends to the Parent, and the Parent may declare and pay cash dividends to its Equity Interest holders; (iv) if no Default or Event of Default has occurred and is continuing or would exist after giving effect thereto, that the repurchase or Borrower shall be in compliance on a Pro Forma Basis with the Consolidated Leverage Incurrence Test, (d) other acquisition of equity securities, limited partnership interest or units of the Parent Restricted Payments in an aggregate amount not to exceed $2,500,000 in per fiscal year, (e) noncash repurchases of Equity Interests deemed to occur upon exercise of stock options if such Equity Interests represent a portion of the exercise price of such options, (f) the repurchase, retirement or other acquisition or retirement for value of Equity Interests (other than Disqualified Stock) of the Company held by any future, present or former employee, director or consultant of the Company or any of its Subsidiaries pursuant to any management equity plan or stock option plan or any other management or employee benefit plan or agreement, provided that the aggregate since the Eighth Amendment Effective Date, from employees, former employees, directors or former directors amount of the Parent or its Subsidiaries (or permitted transferees of such employees, former employees, directors or former directors), Restricted Payments made pursuant to this clause (f) shall not exceed in any calendar year $2,000,000 (it being understood that the terms cancellation of Indebtedness owing to the agreements (including employment agreements) or plans (or amendments thereto) Company from any such persons in connection with any such repurchase, retirement or other arrangements approved by the board acquisition of directors Equity Interests shall not be deemed to constitute a Restricted Payment for purposes of the Parent under which such equity securitiesthis Section 6.10 or any other provision of this Agreement, limited partnership interest or units were granted(g) after a Qualified IPO, issued or sold; and (v) the Borrower may declare and pay dividends and make distributions to, or distributions to the Parent repurchase or redeem shares from, its equity holders in an amount equal to (A) Taxes then due and owing 5% per annum of the net proceeds received by the Parent Borrower from any public offering of Equity Interests of the Borrower and (Bh) reasonable and customary accounting, public company and other overhead and administrative costs and expenses (exclusive dividends of any markup or premium), including reasonable and customary director’s fees and expenses, incurred by the Parent in the ordinary course Equity Interests of businessUnrestricted Subsidiaries.

Restricted Payments. The Borrower and the Parent Guarantors will not, and will not permit any of their respective Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, return any capital to its stockholders or make any distribution of their Property to their respective Equity Interest holders, except (i) the Parent may declare and pay dividends or distributions with respect to its Equity Interests payable solely in additional shares of its Equity Interests (other than Disqualified Capital Stock); (ii) Subsidiaries of the Borrower may declare and pay dividends or distributions ratably with respect to their Equity Interests; (iii) so long as both before and immediately after giving effect to such Restricted Payment, (A) no Default or Event of Default has occurred and is continuing or would result therefrom, (B) the Borrower has unused Commitments commitments under the RBL Facilities of not less than 20% of the total Commitments commitments then in effect thereunder and (C) the ratio of Total Debt as of such time (including the effect of any Borrowings or other Debt borrowings used to make such Restricted Payment) to EBITDA for the four fiscal quarters ending on the last day of the fiscal quarter immediately preceding the date of determination for which financial statements are available is equal to or less than 3.00 to 1.00, the Borrower may declare and pay cash dividends to the Parent, and the Parent may declare and pay cash dividends to its Equity Interest holders; (iv) if no Default or Event of Default has occurred and is continuing or would exist after giving effect thereto, the repurchase or other acquisition of equity securities, limited partnership interest or units of the Parent not to exceed $2,500,000 in the aggregate since the Eighth Amendment Effective Closing Date, from employees, former employees, directors or former directors of the Parent or its Subsidiaries (or permitted transferees of such employees, former employees, directors or former directors), pursuant to the terms of the agreements (including employment agreements) or plans (or amendments thereto) or other arrangements approved by the board of directors of the Parent under which such equity securities, limited partnership interest or units were granted, issued or sold; and (v) the Borrower may declare and pay dividends or distributions to the Parent in an amount equal to (A) Taxes then due and owing by the Parent and (B) reasonable and customary accounting, public company and other overhead and administrative costs and expenses (exclusive of any markup or premium), including reasonable and customary director’s fees and expenses, incurred by the Parent in the ordinary course of business.

Restricted Payments. The Borrower and the Parent Guarantors will Obligors shall not, and will not nor shall they permit any of their respective Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted PaymentPayment (other than to an Obligor or, return any capital to its stockholders or make any distribution the extent such Restricted Payment is being made in respect of their Property a Permitted Investments, a Subsidiary of an Obligor, subject, in each case, to their respective Equity Interest holdersthe Intercompany Subordination Agreement, if applicable), except (a) any non-cash dividends deemed made to facilitate the Business Combination in accordance with the Business Combination Agreement, (b) any conversion of the NDII Shareholder Loans or the Convertible Loans, in each case, to the Equity Interests of the Issuer or Topco, (c) any repayment or prepayment of NDII Shareholder Loans with the Net Cash Proceeds of (i) the Parent Business Combination substantially concurrently with the consummation of the Business Combination, (ii) any issuance of new common Equity Interests to the extent applied substantially concurrently with their receipt or (iii) any issuance of convertible debt that is expressly subordinated to the Obligations pursuant to a subordination agreement in form and substance reasonably satisfactory to the Collateral Agent to the extent applied substantially concurrently with their receipt; provided that with respect to any Restricted Payments made pursuant to clauses (c)(ii) and (c)(iii), (x) such Restricted Payment shall not exceed 75% of the aggregate amount of such Net Cash Proceeds and (y) no Default or Event of Default shall have occurred and be continuing at the time of such Restricted Payment or result therefrom, (d) any repayment or redemption in cash of the Convertible Loans in an amount not to exceed EUR 75,000 in the aggregate on or prior to the consummation of the Business Combination, (e) any Subsidiary of any Obligor may declare and pay pay, and agree to pay, dividends or and other distributions with respect to its Equity Interests payable solely in additional shares common Equity Interests, (f) any Subsidiary of its Equity Interests (other than Disqualified Capital Stock); (ii) Subsidiaries of the Borrower any Obligor may declare and pay dividends or other distributions ratably with respect to its Equity Interests to any Obligor, and to any other Person that holds an Equity Interest in such Subsidiary, ratably according to their respective holdings of such Equity Interests in respect of which such Restricted Payment is being made, (g) the Obligors and their respective Subsidiaries may purchase, redeem or otherwise acquire Equity Interests issued by the relevant Person with the proceeds received from the substantially concurrent issue of new common Equity Interests; , and (iiih) so long as both before each Obligor and immediately after giving effect to such Restricted Paymenteach Subsidiary may pay withholding or similar taxes payable by any future, present or former employee, director or officer (A) no Default or Event any spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees of Default has occurred and is continuing or would result therefrom, (B) the Borrower has unused Commitments of not less than 20% any of the total Commitments then foregoing) in effect and (C) connection with any repurchases of Equity Interests or the ratio exercise of Total Debt as of such time (including the effect of any Borrowings or other Debt used to make such Restricted Payment) to EBITDA for the four fiscal quarters ending on the last day of the fiscal quarter immediately preceding the date of determination for which financial statements are available is equal to or less than 3.00 to 1.00, the Borrower may declare and pay cash dividends to the Parent, and the Parent may declare and pay cash dividends to its Equity Interest holders; (iv) if no Default or Event of Default has occurred and is continuing or would exist after giving effect thereto, the repurchase or other acquisition of equity securities, limited partnership interest or units of the Parent not to exceed $2,500,000 in the aggregate since the Eighth Amendment Effective Date, from employees, former employees, directors or former directors of the Parent or its Subsidiaries (or permitted transferees of such employees, former employees, directors or former directors), pursuant to the terms of the agreements (including employment agreements) or plans (or amendments thereto) or other arrangements approved by the board of directors of the Parent under which such equity securities, limited partnership interest or units were granted, issued or sold; and (v) the Borrower may declare and pay dividends or distributions to the Parent in an amount equal to (A) Taxes then due and owing by the Parent and (B) reasonable and customary accounting, public company and other overhead and administrative costs and expenses (exclusive of any markup or premium), including reasonable and customary director’s fees and expenses, incurred by the Parent in the ordinary course of businessstock options.

Restricted Payments. The Borrower and the Parent Guarantors will not, and Company will not permit any of their respective Subsidiaries to, declare or make, or agree use cash to pay any dividends or makeredeem, directly retire, purchase or indirectly, any Restricted Payment, return any capital to its stockholders guaranty the value of or make any distribution other acquisition, direct or indirect, of their Property any shares of any class of Capital Stock of the Company or any warrants, rights or options to their respective Equity Interest holdersacquire any such Capital Stock, now or hereafter outstanding, or make any cash payment to any Affiliate of the Company (other than a Wholly-Owned Domestic Subsidiary that is a Guarantor) with respect to any management service operations, advisory or similar expense, except to the extent that the consideration therefor is approved by the Majority Banks or otherwise is permitted by Section 7.09; provided, the Company may: (i) prior to the Parent may declare and pay dividends or distributions with respect to its Equity Interests payable solely in additional shares of its Equity Interests (other than Disqualified Capital Stock); Fifth Amendment Effective Date, complete the Common Stock Repurchase, (ii) Subsidiaries prior to the Fifth Amendment Effective Date, purchase shares of the Borrower may declare and pay dividends or distributions ratably with respect to their Equity Interests; Common Stock, (iii) so long redeem or purchase shares of the Company Common Stock or options to purchase the Company Common Stock, as both before and immediately after giving effect to the case may be, held by former employees of the Company or any of its Subsidiaries following the termination of their employment (by death, disability or otherwise), provided that (x) the only consideration paid by the Company in respect of such Restricted Paymentredemptions and/or purchases shall be cash, forgiveness of liabilities and/or Shareholder Subordinated Notes, (y) the sum of (A) the aggregate amount paid by the Company in cash in respect of all such redemptions and/or purchases plus (B) the aggregate amount of liabilities so forgiven plus (C) the aggregate amount of all cash principal and interest payments made on Shareholder Subordinated Notes, in each case after the Fifth Amendment Effective Date, and pursuant to this subsection (iii), shall not exceed $5,000,000 and (z) at the time of any cash payment or forgiveness of liabilities permitted to be made pursuant to this Section 7.06(iii), including any cash payment under a Shareholder Subordinated Note, no Default or Event of Default has occurred and is continuing shall then exist or would result therefrom, (B) the Borrower has unused Commitments of not less than 20% of the total Commitments then in effect and (C) the ratio of Total Debt as of such time (including the effect of any Borrowings or other Debt used to make such Restricted Payment) to EBITDA for the four fiscal quarters ending on the last day of the fiscal quarter immediately preceding the date of determination for which financial statements are available is equal to or less than 3.00 to 1.00, the Borrower may declare and pay cash dividends to the Parent, and the Parent may declare and pay cash dividends to its Equity Interest holders; (iv) if no Default or Event pay cash in lieu of Default has occurred and is continuing or would exist after giving effect thereto, fractional shares of Common Stock issued in connection with a conversion of Preferred Stock into Common Stock in accordance with the repurchase or other acquisition of equity securities, limited partnership interest or units relevant provisions of the Parent statement of designation therefor, so long as the aggregate amount of all cash paid pursuant to this clause (iv) does not to exceed $2,500,000 500,000 in any calendar year; (v) pay cash in lieu of fractional shares of the Company's Common Stock in connection with any reverse stock split, so long as the aggregate since the Eighth Amendment Effective Date, from employees, former employees, directors or former directors amount of the Parent or its Subsidiaries (or permitted transferees of such employees, former employees, directors or former directors), all cash paid pursuant to the terms of the agreements this clause (including employment agreementsv) or plans (or amendments thereto) or other arrangements approved by the board of directors of the Parent under which such equity securities, limited partnership interest or units were granted, issued or solddoes not exceed $500,000 in any calendar year; and (vvi) redeem options to purchase the Borrower may declare and pay dividends or distributions Company's Common Stock, so long as the aggregate amount of all cash paid pursuant to the Parent this clause (vi) does not exceed $500,000 in an amount equal to (A) Taxes then due and owing by the Parent and (B) reasonable and customary accounting, public company and other overhead and administrative costs and expenses (exclusive of any markup or premium), including reasonable and customary director’s fees and expenses, incurred by the Parent in the ordinary course of businesscalendar year.

Restricted Payments. The Borrower and the Parent Guarantors Company will not, and will not permit any of their respective its Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Paymentdividend on any class of its stock or other equity interests, return any capital to its stockholders or make any distribution payment on account of, or set apart assets for a sinking or other analogous fund for, the purchase, redemption, retirement, defeasance or other acquisition of, any shares of their Property common stock or other equity interests or Indebtedness subordinated to their respective Equity Interest holdersthe obligations of the Issuers under the Notes or any options, warrants, or other rights to purchase such common stock or other equity interests or such subordinated Indebtedness, whether now or hereafter outstanding (each, a “Restricted Payment”), except for (i) dividends payable by the Parent may declare and pay dividends or distributions with respect to its Equity Interests payable Company solely in additional shares of any class of its Equity Interests (other than Disqualified Capital Stock); common stock, (ii) Subsidiaries of the Borrower may declare and pay dividends or distributions ratably with respect Restricted Payments made by any Subsidiary to their Equity Interests; any Obligor, (iii) the payment by the Company or any Subsidiary thereof of the “Merger Consideration” (as such term is defined in the Closing Date Acquisition Agreement) to the holders of record of any “Company Units” (as such term is defined in the Closing Date Acquisition Agreement) and the payment by the Company or any Subsidiary thereof of the “Blocker Merger Consideration” (as such term is defined in the Closing Date Acquisition Agreement) to the “Blocker Owners” (as such term is defined in the Closing Date Acquisition Agreement), in each case pursuant to the terms of the Closing Date Acquisition Documents, and (iv) other Restricted Payments made by the Company in cash so long as both before and immediately after giving effect to such Restricted Payment, (Ax) no Default or Event of Default has occurred and is continuing or would result therefrom, (B) the Borrower has unused Commitments of not less than 20% of the total Commitments then in effect therefrom and (Cy) after giving effect to the ratio of Total Debt payment thereof on a pro forma basis, the Company and its Subsidiaries would be in compliance with the financial covenants in paragraphs 6A and 6B measured as of such time (including the effect of any Borrowings or other Debt used to make such Restricted Payment) to EBITDA for the four fiscal quarters ending on the last day of the most recently ended fiscal quarter immediately preceding the date of determination for which financial statements are available is equal required to or less than 3.00 to 1.00, the Borrower may declare and pay cash dividends to the Parent, and the Parent may declare and pay cash dividends to its Equity Interest holders; (iv) if no Default or Event of Default has occurred and is continuing or would exist after giving effect thereto, the repurchase or other acquisition of equity securities, limited partnership interest or units of the Parent not to exceed $2,500,000 in the aggregate since the Eighth Amendment Effective Date, from employees, former employees, directors or former directors of the Parent or its Subsidiaries (or permitted transferees of such employees, former employees, directors or former directors), pursuant to the terms of the agreements (including employment agreements) or plans (or amendments thereto) or other arrangements approved by the board of directors of the Parent under which such equity securities, limited partnership interest or units were granted, issued or sold; and (v) the Borrower may declare and pay dividends or distributions to the Parent in an amount equal to (A) Taxes then due and owing by the Parent and (B) reasonable and customary accounting, public company and other overhead and administrative costs and expenses (exclusive of any markup or premium), including reasonable and customary director’s fees and expenses, incurred by the Parent in the ordinary course of businesshave been delivered hereunder.

Restricted Payments. The Borrower and the Parent Guarantors will not, and will not permit any of their respective Subsidiaries other Credit Party to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, return any capital to its stockholders or make any distribution of their its Property to their respective its Equity Interest holders, except (i) the Parent any Credit Party may declare and pay dividends or distributions with respect to its Equity Interests payable solely in additional shares of its Equity Interests (other than Disqualified Capital Stock); (ii) Subsidiaries of any Credit Party (other than the Borrower Parent) may declare and pay dividends or distributions ratably with respect to their its Equity InterestsInterests to the direct holders of its Equity Interests that are other Credit Parties; (iii) so long as the Parent may make Restricted Payments pursuant to and in accordance with stock option plans or other benefit plans for management or employees of the Parent and its Subsidiaries; (iv) Permitted Tax Distributions, (v) any Repurchase consummated on or prior to the Bid End Date in connection with the NCIB Buyback; provided, that (A) both before and immediately after giving effect to such Restricted Paymenteach Repurchase, (A) no Default or Default, Event of Default has occurred and is continuing or Borrowing Base Deficiency exists or would result therefromexist, and (B) the Borrower has unused Commitments aggregate amount of not less than 20% of the total Commitments then in effect and (C) the ratio of Total Debt as of such time (including the effect of any Borrowings or other Debt used to make such Restricted Payment) to EBITDA for the four fiscal quarters ending on the last day of the fiscal quarter immediately preceding the date of determination for which financial statements are available is equal to or less than 3.00 to 1.00, the Borrower may declare and pay cash dividends to the Parent, and the Parent may declare and pay cash dividends to its Equity Interest holders; (iv) if no Default or Event of Default has occurred and is continuing or would exist after giving effect thereto, the repurchase or other acquisition of equity securities, limited partnership interest or units of the Parent not to exceed $2,500,000 in the aggregate since the Eighth Amendment Effective Date, from employees, former employees, directors or former directors of the Parent or its Subsidiaries (or permitted transferees of such employees, former employees, directors or former directors), pursuant to the terms of the agreements (including employment agreements) or plans (or amendments thereto) or other arrangements approved by the board of directors of the Parent under which such equity securities, limited partnership interest or units were granted, issued or sold; and (v) the Borrower may declare and pay dividends or distributions to the Parent in an amount equal to (A) Taxes then due and owing by the Parent and (B) reasonable and customary accounting, public company and other overhead and administrative costs and expenses (exclusive of any markup or premium), including reasonable and customary director’s fees and expenses, incurred consideration paid by the Parent in respect of all Repurchases for the ordinary course NCIB Buyback shall not exceed $45,000,000 in the aggregate for the NCIB Buyback, (vi) any Credit Party may make required cash interest payments on any Convertible Senior Notes, (vii) any Credit Party may make any payment in, and/or delivery of, its common stock in satisfaction of businessthe Parent’s obligations in respect of any Convertible Senior Notes upon conversion or exchange of such Convertible Senior Notes, (viii) any Redemption by any Credit Party of any Convertible Senior Notes upon the occurrence of a Fundamental Change to the extent such Redemption constitutes a Restricted Payment and (ix) any Credit Party may pay cash in lieu of fractional shares in connection with any conversion or exchange of any Convertible Senior Notes.

Restricted Payments. The Borrower and the Parent Guarantors will not, and nor will not it permit any of their respective Subsidiaries Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, make any Restricted Payment, return except that (a) any capital to its stockholders or Subsidiary may make any distribution Restricted Payment to the Borrower, to any Wholly-Owned Subsidiary of their Property the Borrower or to their respective Equity Interest holdersholders of its equity interests on a ratable basis, except (ib) the Parent Borrower may declare and pay dividends or distributions with respect to its Equity Interests make Restricted Payments payable solely in additional shares of its Equity Interests equity interests (other than Disqualified Capital Stock); , (c) the Borrower may make Restricted Payments in the form of (i) equity pursuant to and in accordance with stock option plans or other benefit plans for directors or employees of the Borrower and its Subsidiaries, (ii) Subsidiaries the cashless purchase of shares of its equity interests awarded under such plans from such employees to offset tax liabilities and the payment of any taxes associated with the vesting of such shares and (iii) cash to settle and terminate equity interests under such plans, (d) the Borrower may declare make any Restricted Payment within 60 days after the date of declaration thereof, if on the date of declaration such Restricted Payment would have complied with the provisions of this Section 6.17, (e) the Borrower or any Subsidiary may carry out the Borrower’s existing share buy-back program and pay dividends or distributions ratably with respect to their Equity Interests; (iii) may make any Restricted Payment, in each case, so long as both (i) no Default or Event of Default shall exist, and (ii) the Borrower shall be in pro forma compliance with the financial covenants set forth in Section 6.18, immediately before and immediately after upon giving effect to such Restricted Payment, and (Af) the Borrower or any Subsidiary may make regular quarterly dividends so long as no Default or Event of Default has occurred shall exist and is continuing or would result therefrom, (B) the Borrower has unused Commitments of not less than 20% of shall be in pro-forma compliance with the total Commitments then financial covenants set forth in effect and (C) the ratio of Total Debt Section 6.18, as of such time (including the effect of any Borrowings or other Debt used to make such Restricted Payment) to EBITDA for the four fiscal quarters ending determined on the last day of the fiscal quarter immediately preceding the date of determination for which financial statements such dividends are available is equal to or less than 3.00 to 1.00, the Borrower may declare and pay cash dividends to the Parent, and the Parent may declare and pay cash dividends to its Equity Interest holders; (iv) if no Default or Event of Default has occurred and is continuing or would exist after giving effect thereto, the repurchase or other acquisition of equity securities, limited partnership interest or units of the Parent not to exceed $2,500,000 in the aggregate since the Eighth Amendment Effective Date, from employees, former employees, directors or former directors of the Parent or its Subsidiaries (or permitted transferees of such employees, former employees, directors or former directors), pursuant to the terms of the agreements (including employment agreements) or plans (or amendments thereto) or other arrangements approved by the board of directors of the Parent under which such equity securities, limited partnership interest or units were granted, issued or sold; and (v) the Borrower may declare and pay dividends or distributions to the Parent in an amount equal to (A) Taxes then due and owing by the Parent and (B) reasonable and customary accounting, public company and other overhead and administrative costs and expenses (exclusive of any markup or premium), including reasonable and customary director’s fees and expenses, incurred by the Parent in the ordinary course of businessdeclared.

Restricted Payments. The Borrower and the Parent Guarantors will not, and will not permit any of their respective its Subsidiaries (other than WEX Bank) to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, return any capital to its stockholders or make any distribution of their Property to their respective Equity Interest holders, except (ia) the Parent Borrower may declare and pay dividends or distributions with respect to its Equity Interests payable solely in additional shares of its Equity Interests common stock or warrants, options or other rights entitling the holder thereof to purchase or acquire shares of its common stock, (other than Disqualified Capital Stock); (iib) Subsidiaries of the Borrower any Subsidiary may declare and pay dividends or distributions ratably with respect to their Equity Interests; , (iiic) the Borrower may make Restricted Payments pursuant to and in accordance with stock option plans or other benefit plans for management or employees of the Borrower and its Subsidiaries, (d) any Subsidiary may make Restricted Payments to the Borrower or any of the Subsidiaries, (e) so long as both before no Event of Default shall then exist and immediately the Borrower would be in compliance with Sections 6.01 and 6.02 after giving effect to such Restricted Payment, (A) no Default or Event of Default has occurred and is continuing or would result therefrom, (B) the Borrower has unused Commitments of not less than 20% of the total Commitments then in effect and (C) the ratio of Total Debt as of such time (including the effect of any Borrowings or other Debt used to make such Restricted Payment) to EBITDA for the four fiscal quarters ending on the last day of the fiscal quarter immediately preceding the date of determination for which financial statements are available is equal to or less than 3.00 to 1.00Payments, the Borrower may declare and pay cash dividends to the Parent, and the Parent may declare and pay cash dividends to its Equity Interest holders; (iv) if no Default or Event make Restricted Payments not otherwise permitted hereunder in an aggregate amount of Default has occurred and is continuing or would exist after giving effect thereto, the repurchase or other acquisition of equity securities, limited partnership interest or units $5,000,000 during each fiscal year of the Parent not to exceed $2,500,000 in the aggregate since the Eighth Amendment Effective DateBorrower of which 100% of unused amounts may be carried over into subsequent years, from employees, former employees, directors or former directors of the Parent or its Subsidiaries (or permitted transferees of such employees, former employees, directors or former directors), pursuant to the terms of the agreements (including employment agreements) or plans (or amendments thereto) or other arrangements approved by the board of directors of the Parent under which such equity securities, limited partnership interest or units were granted, issued or sold; and (vf) the Borrower may declare and pay dividends or distributions to use proceeds from the Parent underwriters’ over-allotment option in an amount equal to (A) Taxes then due and owing by the Parent Initial Public Offering for repurchases of Equity Interests in the Borrower and (Bg) reasonable the Borrower may make the Restricted Payments described in, and customary accountingin accordance with, public company Sections 6.09(f) and other overhead and administrative costs and expenses (exclusive of any markup or premium), including reasonable and customary director’s fees and expenses, incurred by the Parent in the ordinary course of business6.13.

Restricted Payments. The Borrower and the Parent Guarantors will not, and will not permit any of their respective its Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, return any capital to its stockholders or make any distribution of their Property to their respective Equity Interest holders, except (ia) the Parent or any Subsidiary may declare and pay dividends or other distributions with respect to its Equity Interests payable solely in additional shares of its Qualified Equity Interests (other than Disqualified Capital Stock)or options to purchase Qualified Equity Interests; (iib) Subsidiaries of the Borrower may declare and pay dividends or distributions make Restricted Payments ratably with respect to their Equity Interests; (iiic) the Parent or any Subsidiary may make Restricted Payments pursuant to and in accordance with stock option plans or other benefit plans for present or former officers, directors, consultants or employees of the Parent and its Subsidiaries in an amount not to exceed $20,000,000 in any fiscal year (with any unused amount of such base amount available for use in the next succeeding fiscal year); (d) the Parent or any Subsidiary may make Restricted Payments so long as both before and immediately after giving effect to such Restricted Payment, (A) no Default or Event of Default has occurred and is continuing continuing; (e) repurchases of Equity Interests in any Loan Party or would result therefromany Subsidiary deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants; (f) the payment of cash in lieu of the issuance of fractional shares in connection with the exercise of warrants, options or other securities convertible into or exercisable for Qualified Equity Interests of the Parent; (g) payments made to exercise, settle or terminate any Permitted Warrant Transaction (A) by delivery of the Parent’s common stock, (B) by set-off against the Borrower has unused Commitments of not less than 20% of the total Commitments then in effect and related Permitted Bond Hedge Transaction, or (C) the ratio of Total Debt as of such time (including the effect of any Borrowings or other Debt used to make such Restricted Payment) to EBITDA for the four fiscal quarters ending on the last day of the fiscal quarter immediately preceding the date of determination for which financial statements are available is equal to or less than 3.00 to 1.00, the Borrower may declare and pay with cash dividends to the Parent, and the Parent may declare and pay cash dividends to its Equity Interest holders; (iv) if no Default or Event of Default has occurred and is continuing or would exist after giving effect thereto, the repurchase or other acquisition of equity securities, limited partnership interest or units of the Parent payments in an aggregate amount not to exceed $2,500,000 in the aggregate since the Eighth Amendment Effective Date, from employees, former employees, directors or former directors amount of any payments received by the Parent or any of its Subsidiaries (or permitted transferees of such employees, former employees, directors or former directors), pursuant to the terms exercise, settlement or termination of the agreements any related Permitted Bond Hedge Transaction; (including employment agreementsh) or plans (or amendments thereto) or other arrangements approved by the board of directors of the Parent under which such equity securities, limited partnership interest or units were granted, issued or soldpayments made in connection with any Permitted Bond Hedge Transaction; and (vi) the Borrower Parent or any Subsidiary may declare and pay dividends or distributions make Restricted Payments pursuant to the Parent arrangements set forth in an amount equal to (A) Taxes then due and owing by the Parent and (B) reasonable and customary accounting, public company and other overhead and administrative costs and expenses (exclusive of any markup or premium), including reasonable and customary director’s fees and expenses, incurred by the Parent in the ordinary course of businessSchedule 6.04.

Restricted Payments. The Parent Borrower and the Parent Guarantors will not, and will not permit any of their respective its Subsidiaries to, declare or makepay any dividend on, or agree to pay make any payment on account of, or makeset apart assets for a sinking or other analogous fund for, the purchase, redemption, defeasance, retirement or other acquisition of, any Capital Stock of any Global Group Member, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of any Global Group Member (collectively, “Restricted Payment, return any capital to its stockholders or make any distribution of their Property to their respective Equity Interest holdersPayments”), except (ia) the Parent Borrower or any Subsidiary may declare and pay dividends make Restricted Payments in its common stock, (b) any Subsidiary may make Restricted Payments to the Parent Borrower or distributions with respect to its Equity Interests payable solely in additional shares of its Equity Interests (any other than Disqualified Capital Stock); (ii) Subsidiaries Subsidiary that is a Wholly-Owned Subsidiary of the Borrower may declare and pay dividends or distributions ratably with respect to their Equity Interests; Parent Borrower, (iiic) so long as both before and immediately after giving effect to such Restricted Payment, (A) no Default or Event of Default has shall have occurred and is be continuing or would result therefrom, the Parent Borrower may make Restricted Payments not to exceed US$50,000,000 in the aggregate during any fiscal year, commencing with the fiscal year ending December 31, 2008, provided, that (Bi) the Borrower has unused Commitments of not less than 20% such amount shall be increased to (x) US$100,000,000 as of the total Commitments then in effect and (C) first date on which the ratio of Total Debt as of such time (including the effect of any Borrowings or other Debt used to make such Restricted Payment) to EBITDA for the four fiscal quarters ending on the last day of the fiscal quarter immediately preceding the date of determination for which financial statements are available Consolidated Leverage Ratio is equal to or less than 3.00 2.75 to 1.00 and (y) US$150,000,000 as of the first date on which the Consolidated Leverage Ratio is equal to or less than 2.50 to 1.00 and (ii) this restriction (on the annual amount of such Parent Borrower Restricted Payments) shall cease to be applicable as of the first date on which the Consolidated Leverage Ratio is equal to or less than 2.00 to 1.00, (d) the Parent Borrower may purchase fractional shares of its common stock arising out of stock dividends, splits or combinations or business combinations, (e) Restricted Payments by the Parent Borrower and its Subsidiaries pursuant to any transaction permitted by Section 7.4, (f) any non-Wholly-Owned Subsidiary of the Parent Borrower may declare and pay cash dividends to the Parent, and its equity holders generally so long as the Parent may declare Borrower or its respective Subsidiary which owns the equity interests in the Subsidiary paying such dividend receives at least its proportional share thereof (based upon its relative holding of the equity interests in the Subsidiary paying such dividends and pay cash taking into account the relative preferences, if any, of the various classes of equity interest of such Subsidiary), (g) the payment of regularly scheduled dividends to its Equity Interest holders; on (ivincluding dividends for cash) if no Default any preferred stock of the Canadian Borrower, or Event of Default has occurred and is continuing or would exist after giving effect theretothe repurchase, the repurchase redemption or other acquisition or retirement for value in an aggregate amount not to exceed C$35,000,000 of equity securitiesany preferred stock of the Canadian Borrower, limited partnership interest (h) the repurchase, redemption or units other acquisition or retirement for value of any Capital Stock of the Parent not to exceed $2,500,000 in the aggregate since the Eighth Amendment Effective DateBorrower or any Subsidiary held by any future, from employees, former employees, directors present or former directors directors, officers, members of management, employees or consultants of the Parent Borrower or any of its Subsidiaries (or permitted transferees of such employeestheir respective estates, former employeesheirs, directors family members, spouses or former directors), spouses pursuant to the terms of any employee equity subscription agreement, stock option agreement or similar agreement; provided that the agreements aggregate price paid for all such repurchased, redeemed, acquired or retired Capital Stock in any fiscal year (other than any such Capital Stock repurchased, redeemed, acquired or retired in compensation for any taxes due or payable by the holder thereof) will not exceed (x) US$15,000,000 or the Canadian Dollar Equivalent thereof for the fiscal year ending December 31, 2007 and (y) US$5,000,000 per year or the Canadian Dollar Equivalent thereof for each fiscal year ending thereafter, (i) the payment of regularly scheduled dividends on (including employment agreementsdividends for cash) any preferred stock of Domtar (Canada) Paper Inc., or plans (or amendments thereto) the repurchase, redemption or other arrangements approved by acquisition or retirement for value in an aggregate amount not to exceed US$1,000,000 or C$1,100,000 of any preferred stock of Domtar (Canada) Paper Inc. and (j) the board acquisition of directors Capital Stock transferred to, or deemed to be acquired by, the Parent Borrower or any Subsidiary in payment of all or any portion of the Parent under exercise price of options or warrants the issuance of which such equity securities, limited partnership interest or units were granted, issued or sold; and (v) the Borrower may declare and pay dividends or distributions to the Parent in an amount equal to (A) Taxes then due and owing is not prohibited by the Parent and (B) reasonable and customary accounting, public company and other overhead and administrative costs and expenses (exclusive of any markup or premium), including reasonable and customary director’s fees and expenses, incurred by the Parent in the ordinary course of businessthis Agreement.

Restricted Payments. The Neither the Borrower and the Parent Guarantors will not, and will not permit nor any of their respective its Subsidiaries to, will declare or make, or agree to pay declare or make, directly or indirectly, any Restricted Payment, return any capital to its stockholders or make any distribution of their Property to their respective Equity Interest holdersexcept that, except if at the time thereof and after giving effect thereto no Default shall have occurred and be continuing, (ia) the Parent may declare and pay dividends or distributions with respect to its Equity Interests payable solely in additional shares of its Equity Interests (other than Disqualified Capital Stock); (ii) Subsidiaries of the Borrower may declare repay Permitted Subordinated Debt consisting of Debt owing to Corning, but only to the extent of the gross proceeds received by the Borrower (before deducting underwriting discounts and pay dividends commissions or distributions ratably with respect to their Equity Interests; (iiiother expenses) so long as both before and immediately after giving effect to such Restricted Paymentfrom the issuance of the Senior Subordinated Notes or the borrowing of Senior Subordinated Bridge Loans, (A) no Default or Event of Default has occurred and is continuing or would result therefrom, (Bb) the Borrower has unused Commitments may repay Permitted Subordinated Debt consisting of not less than 20% Senior Subordinated Bridge Loans, but only to the extent of the total Commitments then in effect gross proceeds received by the Borrower (before deducting underwriting discounts and commissions or other expenses) from the issuance of the Senior Subordinated Notes, (Cc) the ratio Borrower may pay interest and fees as and when due in respect of Total Debt as of such time the Senior Subordinated Bridge Loans and the Senior Subordinated Notes, (including d) the effect of any Borrowings or other Debt used to Borrower may make such Restricted Paymentthe Spin-Off Distributions, (e) to EBITDA for the four fiscal quarters ending Borrower may pay dividends on the last day Permitted Preferred Stock in an amount not exceeding $150,000 per year, (f) after consummation of the fiscal quarter immediately preceding the date of determination for which financial statements are available is equal to or less than 3.00 to 1.00Spin-Off Distributions, the Borrower may declare and pay cash dividends repurchase shares of its common stock to be contributed to employee benefit plans, or to the Parentextent of any cash consideration received by the Borrower in respect of the issuance of shares of its common stock to employees, provided that aggregate Restricted Payments pursuant to this clause (f) shall not exceed during any fiscal year of the Borrower the sum of $10,000,000 plus the amount of cash consideration received by the Borrower during such fiscal year in respect of the issuance of shares of common stock to its employees, and (g) following the Parent may declare and pay cash dividends to its Equity Interest holders; (iv) if no Default or Event date of Default has occurred and is continuing or would exist after giving effect thereto, the repurchase or other acquisition of equity securities, limited partnership interest or units consummation of the Parent not to exceed $2,500,000 in the aggregate since the Eighth Amendment Effective DateSpin-Off Distributions, from employees, former employees, directors or former directors of the Parent or its Subsidiaries (or permitted transferees of such employees, former employees, directors or former directors), pursuant to the terms of the agreements (including employment agreements) or plans (or amendments thereto) or other arrangements approved by the board of directors of the Parent under which such equity securities, limited partnership interest or units were granted, issued or sold; and (v) the Borrower may declare and pay dividends make a payment to Corning (as a Restricted Payment or distributions to the Parent otherwise) in an amount equal to the excess, if any, of (Ai) Taxes then due the aggregate amount of cash and owing cash equivalents held by the Parent Borrower and its Subsidiaries on the date of the Spin-Off Distributions over (Bii) reasonable the sum of the aggregate principal amount of Working Capital Loans and customary accounting, public company and other overhead and administrative costs and expenses (exclusive Swingline Loans outstanding on the date of the Spin-Off Distributions plus $40,000,000 plus the Net Cash Proceeds from any markup sales of assets identified in Part II of Schedule 5.11 received on or premium), including reasonable and customary director’s fees and expenses, incurred by the Parent in the ordinary course of businessprior to such date.

Restricted Payments. The Borrower and the Parent Guarantors No Credit Party will, nor will not, and will not it permit any of their respective its Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, (a) declare or pay any Restricted Payment, return any capital to dividends (except for distributions by the Borrower of its stockholders Capital Stock which does not by its terms mature or become redeemable at the option of the holder thereof) or make any other distribution upon any shares of their Property its Capital Stock of any class or (b) purchase, redeem or otherwise acquire or retire or make any provisions for redemption, acquisition or retirement of any shares of its Capital Stock of any class or any warrants or options to their respective Equity Interest holders, except purchase any such shares; provided that (i) the Parent may declare and pay dividends or distributions with respect to its Equity Interests payable solely in additional shares of its Equity Interests (other than Disqualified Capital Stock); (ii) Subsidiaries any Subsidiary of the Borrower may declare and pay dividends to its parent or distributions ratably with respect the Borrower, (ii) the Borrower may (A) repurchase outstanding shares of Capital Stock of the Borrower following the death, disability, retirement or termination of employment of a member of Management or a consultant to their Equity Interests; a Credit Party or one of its Subsidiaries (iiieven if such member of Management or consultant is retained in a consulting capacity after retirement or termination of employment) or (B) fund amounts payable to participants or former participants in employee benefit plans upon any termination of employment by such participants as provided in the documents related thereto, in an aggregate amount (for both clauses (A) and (B) above) not to exceed (x) $15,000,000 in any fiscal year and (y) $30,000,000 during the term of the Credit Agreement so long as both before at the time of repurchase or funding and immediately after giving effect to such Restricted Paymentthereto, (A) no Default or Event of Default has occurred and is continuing shall exist or would result therefrombe continuing, (Biii) in addition to the amounts set forth in clauses (i) and (ii) above, up to $20,000,000 may be used to pay dividends or redeem Capital Stock during the term of the Credit Agreement so long as the time of such dividend or redemption and after giving effect thereto, no Default or Event of Default shall exist or be continuing and (iv) the Borrower has unused Commitments of not less than 20% may pay dividends or repurchase or redeem its Capital Stock so long as (A) after giving effect to such dividend or repurchase or redemption on a pro forma basis, as if such dividend, repurchase or redemption had occurred on the first day of the total Commitments then in effect and (C) the ratio of Total Debt as of such time (including the effect of any Borrowings or other Debt used to make such Restricted Payment) to EBITDA for the four fiscal quarters twelve month period ending on the last day of the Borrower's most recently completed fiscal quarter immediately preceding quarter, the date of determination for which financial statements are available Leverage Ratio is equal to or less than 3.00 2.5 to 1.00, 1.0 and the Borrower may declare and pay cash dividends shall have delivered to the ParentAdministrative Agent a certificate of its chief financial officer to such effect setting forth in reasonable detail the computation necessary to make such determination of the Leverage Ratio and (B) at the time of such dividend, repurchase or redemption and the Parent may declare and pay cash dividends to its Equity Interest holders; (iv) if after giving effect thereto, no Default or Event of Default has occurred and is continuing shall exist or would exist after giving effect thereto, the repurchase or other acquisition of equity securities, limited partnership interest or units of the Parent not to exceed $2,500,000 in the aggregate since the Eighth Amendment Effective Date, from employees, former employees, directors or former directors of the Parent or its Subsidiaries (or permitted transferees of such employees, former employees, directors or former directors), pursuant to the terms of the agreements (including employment agreements) or plans (or amendments thereto) or other arrangements approved by the board of directors of the Parent under which such equity securities, limited partnership interest or units were granted, issued or sold; and (v) the Borrower may declare and pay dividends or distributions to the Parent in an amount equal to (A) Taxes then due and owing by the Parent and (B) reasonable and customary accounting, public company and other overhead and administrative costs and expenses (exclusive of any markup or premium), including reasonable and customary director’s fees and expenses, incurred by the Parent in the ordinary course of businessbe continuing.

Restricted Payments. The Neither the Borrower and shall, nor shall the Parent Guarantors will not, and will not Borrower permit any of their respective its Restricted Subsidiaries to, directly or indirectly, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, return except: each Restricted Subsidiary may make Restricted Payments to the Borrower, and other Restricted Subsidiaries of the Borrower (and, in the case of a Restricted Payment by a non-wholly owned Restricted Subsidiary, to the Borrower and any capital other Restricted Subsidiary and to its stockholders or make any distribution each other owner of Equity Interests of such Restricted Subsidiary based on their Property to their respective relative ownership interests of the relevant class of Equity Interest holders, except (i) Interests); the Parent Borrower and each Restricted Subsidiary may declare and pay dividends make dividend payments or distributions with respect to its Equity Interests other Restricted Payments payable solely in additional shares of its Equity Interests (other than Disqualified Capital Stock)Equity Interests not otherwise permitted by Section 7.03) of such Person; Restricted Payments made (i) on the Closing Date to consummate the Transactions, (ii) in respect of working capital adjustments or purchase price adjustments pursuant to the Acquisition Agreement and (iii) in order to satisfy indemnity and other similar obligations under the Acquisition Agreement; to the extent constituting Restricted Payments, the Borrower and its Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.02 (other than 7.02(e)), 7.04 or Section 7.08 (other than Section 7.08(f)); repurchases of Equity Interests in the Borrower (or any direct or indirect parent thereof) or any Restricted Subsidiary of the Borrower deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants; the Borrower and each Restricted Subsidiary may declare pay (or make Restricted Payments to allow the Borrower or any other direct or indirect parent thereof to pay) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of such Restricted Subsidiary (or of the Borrower or any other such direct or indirect parent thereof) by any future, present or former employee, officer, director, manager or consultant of such Restricted Subsidiary (or the Borrower or any other direct or indirect parent of such Restricted Subsidiary) or any of its Subsidiaries upon the death, disability, retirement or termination of employment of any such Person or pursuant to any employee, manager or director equity plan, employee, manager or director stock option plan or any other employee, manager or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee, director, officer or consultant of such Restricted Subsidiary (or the Borrower or any other direct or indirect parent thereof) or any of its Restricted Subsidiaries; provided that the aggregate amount of Restricted Payments made pursuant to this clause (f) shall not exceed $15,000,000 in any calendar year (which shall increase to $25,000,000 subsequent to the consummation of a Qualified IPO of Holdings or any direct or indirect parent thereof, as the case may be) (with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $25,000,000 in any calendar year (which shall increase to $50,000,000 subsequent to the consummation of a Qualified IPO of Holdings or any direct or indirect parent thereof, as the case may be)); provided further that such amount in any calendar year may be increased by an amount not to exceed: to the extent contributed to the Borrower, the Net Proceeds from the sale of Equity Interests of any of the Borrower’s direct or indirect parent companies, in each case to members of management, managers, directors or consultants of Holdings, the Borrower, any of its Subsidiaries or any of its direct or indirect parent companies that occurs after the Closing Date; plus the Cash Proceeds of key man life insurance policies received by the Borrower or its Restricted Subsidiaries; less the amount of any Restricted Payments previously made with the cash proceeds described in clauses (i) and pay dividends or distributions ratably with respect (ii) of this Section 7.06(f); the Borrower may make Restricted Payments in an aggregate amount equal to their Equity Interests; (iii) the portion, if any, of the Cumulative Credit on such date that the Borrower elects to apply to this paragraph so long as both before and immediately after giving effect (i) the Total Leverage Ratio determined on a Pro Forma Basis as of the last day of the most recently ended Test Period for which financial statements were required to have been delivered pursuant to Section 6.01(a) or (b), as applicable (or, if no Test Period has passed, as of the last four quarters ended), as if such Restricted PaymentPayment had been made on the last day of such four quarter period, is less than or equal to 3.25:1.00 and (Aii) no Default or Event of Default has occurred and is continuing or would result therefrom, continuing; provided that any election made pursuant to this clause (Bg) shall be specified in a written notice of a Responsible Officer of the Borrower has unused Commitments calculating in reasonable detail the amount of not less than 20% of Cumulative Credit immediately prior to such election and the total Commitments then in effect and (C) the ratio of Total Debt as of such time (including the effect of any Borrowings or other Debt used amount thereof elected to make such Restricted Payment) to EBITDA for the four fiscal quarters ending on the last day of the fiscal quarter immediately preceding the date of determination for which financial statements are available is equal to or less than 3.00 to 1.00, be so applied; the Borrower may declare and pay cash dividends make Restricted Payments to the Parent, and the Parent may declare and pay cash dividends to its Equity Interest holders; (iv) if no Default any direct or Event of Default has occurred and is continuing or would exist after giving effect thereto, the repurchase or other acquisition of equity securities, limited partnership interest or units indirect parent of the Parent not Borrower: to exceed $2,500,000 in the aggregate since the Eighth Amendment Effective Date, from employees, former employees, directors or former directors of the Parent or pay its Subsidiaries (or permitted transferees of such employees, former employees, directors or former directors), pursuant to the terms of the agreements (including employment agreements) or plans (or amendments thereto) or other arrangements approved by the board of directors of the Parent under which such equity securities, limited partnership interest or units were granted, issued or sold; and (v) the Borrower may declare and pay dividends or distributions to the Parent in an amount equal to (A) Taxes then due and owing by the Parent and (B) reasonable and customary accounting, public company and other overhead and administrative costs and operating expenses (exclusive of any markup or premium), including reasonable and customary director’s fees and expenses, incurred by the Parent in the ordinary course of businessbusiness and other corporate overhead costs and expenses (including administrative, legal, accounting and similar expenses provided by third parties), which are reasonable and customary and incurred in the ordinary course of business and attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries so long as allocable to such entity in accordance with GAAP, Transaction Expenses and any reasonable and customary indemnification claims made by directors or officers of such parent attributable to the ownership or operations of the Borrower and its Restricted Subsidiaries; the proceeds of which shall be used by such parent to pay franchise taxes and other fees, taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existence; for any taxable period in which the Borrower and/or any of its Subsidiaries is a member of a consolidated, combined or similar income tax group of which a direct or indirect parent of Borrower is the common parent (a “Tax Group”), to pay federal, foreign, state and local income Taxes of such Tax Group that are attributable to the taxable income of the Borrower and/or its Subsidiaries; provided that, for each taxable period, the amount of such payments made in respect of such taxable period in the aggregate shall not exceed the amount that the Borrower and the Subsidiaries would have been required to pay as a stand-alone Tax Group, reduced by any portion of such income Taxes directly paid by the Borrower or any of its Subsidiaries; provided further that the permitted payment pursuant to this clause (iii) with respect to any Taxes of any Unrestricted Subsidiary for any taxable period shall be limited to the amount actually paid with respect to such period by such Unrestricted Subsidiary to the Borrower or its Restricted Subsidiaries for the purposes of paying such consolidated, combined or similar Taxes; to finance any Investment that would be permitted to be made pursuant to Section 7.02 if such parent were subject to such section; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Borrower or the Restricted Subsidiaries or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Borrower or its Restricted Subsidiaries in order to consummate such Permitted Acquisition or Investment, in each case, in accordance with the requirements of Section 6.11; the proceeds of which shall be used to pay customary salary, bonus and other benefits payable to officers and employees of Holdings or any direct or indirect parent company of Holdings to the extent such salaries, bonuses and other benefits are attributable to the ownership or operation of the Borrower and the Restricted Subsidiaries; the proceeds of which shall be used by Holdings to pay (or to make Restricted Payments to allow any direct or indirect parent thereof to pay fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering by Holdings (or any direct or indirect parent thereof) that is directly attributable to the operations of the Borrower and its Restricted Subsidiaries; and the proceeds of which shall be used to pay customary costs, fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this Agreement; payments made or expected to be made by the Borrower or any of the Restricted Subsidiaries in respect of withholding or similar Taxes payable by any future, present or former employee, director, manager or consultant (or any spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees of any of the foregoing) and any repurchases of Equity Interests in consideration of such payments including deemed repurchases in connection with the exercise of stock options; after a Qualified IPO, (i) any Restricted Payment by the Borrower or any other direct or indirect parent of the Borrower to pay listing fees and other costs and expenses attributable to being a publicly traded company which are reasonable and customary and (ii) Restricted Payments not to exceed the greater of (A) up to 6% per annum of the net proceeds received by (or contributed to) the Borrower and its Restricted Subsidiaries from such Qualified IPO and (B) Restricted Payments in an aggregate amount per annum not to exceed (w) $90.0 million, so long as, on a Pro Forma Basis after giving effect to the payment of any such Restricted Payment, the Total Leverage Ratio shall be no greater than 5.00 to 1.00 and greater than 4.50 to 1.00, (x) $120.0 million, so long as, on a Pro Forma Basis after giving effect to the payment of any such Restricted Payment, the Total Leverage Ratio shall be no greater than 4.50 to 1.00 and greater than 4.00 to 1.00, (y) the greater of (a) $120.0 million and (b) 7.5% of Market Capitalization, so long as, on a Pro Forma Basis after giving effect to the payment of any such Restricted Payment, the Total Leverage Ratio shall be no greater than 4.00 to 1.00 and greater than 3.50 to 1.00 and (z) an unlimited amount, so long as, on a Pro Forma Basis after giving effect to the payment of any such Restricted Payment, the Total Leverage Ratio shall be no greater than 3.50 to 1.00; and the Borrower may make the Amendment No. 3 Distribution.

Restricted Payments. The Borrower and the Parent Guarantors Company will not, and nor will not it permit any of their respective its Restricted Subsidiaries to, declare or make, or agree make any Restricted Payment at any time; other than: (a) Restricted Payments may be made to Holdings in order to allow Holdings to pay or makedividends on its Series AA Preferred Stock in any single fiscal year in an aggregate amount up to $500,000 (and such dividend payments may be prefunded in an aggregate amount up to $2,000,000), directly or indirectly, any Restricted Payment, return any capital to its stockholders or make any distribution of their Property to their respective Equity Interest holders, except (i) the Parent may declare and pay dividends or distributions with respect to its Equity Interests payable solely in additional shares of its Equity Interests so long as no Default (other than Disqualified Capital Stock)a Default under clause (c) or (d) of Article VIII) shall have occurred and be continuing; (iib) Subsidiaries Restricted Payments consisting of the Borrower may declare retirement of employee stock options and pay dividends other Equity Rights upon the death, retirement or distributions ratably with respect to their Equity Interests; (iii) termination of employment of officers and employees in an aggregate amount in any fiscal year not exceeding $3,000,000, so long as both before at the time thereof and immediately after giving effect to such Restricted Payment, (A) no Default or Event of Default has occurred and is continuing or would result therefrom, (B) the Borrower has unused Commitments of not less than 20% of the total Commitments then in effect and (C) the ratio of Total Debt as of such time (including the effect of any Borrowings or other Debt used to make such Restricted Payment) to EBITDA for the four fiscal quarters ending on the last day of the fiscal quarter immediately preceding the date of determination for which financial statements are available is equal to or less than 3.00 to 1.00, the Borrower may declare and pay cash dividends to the Parent, and the Parent may declare and pay cash dividends to its Equity Interest holders; (iv) if no Default or Event of Default has occurred and is continuing or would exist after giving effect thereto, no Default shall have occurred and be continuing; (c) the repurchase entering into by the Company of Equity Hedging Arrangements, so long as the aggregate maximum contingent or other acquisition potential liability thereunder shall not on any date exceed $12,000,000 minus the aggregate amount in fact paid by the Company under all Equity Hedging Arrangements during the period commencing on the Second Restatement Effective Date and ending on such date; (d) Restricted Payments by the Company to enable Holdings to make payments in respect of equity securitiesQualified Holdings Obligations; (e) so long as no Default has occurred or is continuing and if after giving effect thereto the Company would be in compliance with Section 7.09, limited partnership interest the Senior Debt Ratio would be less than 3.50 to 1.0 and the Total Debt Ratio would be less than 6.00 to 1.0, Restricted Payments by the Company from the Cumulative Credit, (f) with respect to any taxable year for which Holdings (or units its successor) is not intended to be treated as a REIT and so long as Holdings (or its direct or indirect parent) is the common parent of a consolidated, combined, unitary, affiliated or similar group (“Tax Group”) of which the Borrower or any of its Subsidiaries is a member, Restricted Payments may be made to Holdings to pay the portion of the Parent not tax liability of such Tax Group that is attributable to exceed $2,500,000 in the aggregate since the Eighth Amendment Effective Date, from employees, former employees, directors or former directors of the Parent or Borrower and/or its Subsidiaries (or permitted transferees as applicable), to the extent the tax liability does not exceed the amount of such employeestaxes that would have been payable by the Borrower and/or its applicable Subsidiaries on a stand-alone basis, former employeesreduced by any such payments paid or to be paid directly by the Borrower or its Subsidiaries, directors or former directors), pursuant provided that to the terms extent any such Restricted Payment is attributable to a Unrestricted Subsidiary, the payment shall be limited to the actual tax payment made by such Unrestricted Subsidiary to the Borrower or any of the agreements (including employment agreements) or plans (or amendments thereto) or other arrangements approved by the board of directors of the Parent under which such equity securities, limited partnership interest or units were granted, issued or soldits Restricted Subsidiaries; and (vg) with respect to any taxable year for which Holdings (or its successor) is intended to be treated as a REIT, notwithstanding any other limitation hereunder (except as set forth in the Borrower may declare and pay dividends or distributions to the Parent following sentence), Restricted Payments in an aggregate amount equal to (i) the taxable income of Holdings as determined for purposes of Section 857 of the Code (but without regard for any deduction for dividends paid) and (ii) any additional amounts as may be necessary for Holdings to (A) Taxes then due qualify and owing remain qualified for taxation as a REIT, such as the minimum amount required to be distributed by Holdings to its shareholders to satisfy the Parent requirement in Section 857(a)(2)(B) of the Code that Holdings distribute all of its accumulated earnings and profits accumulated in any non-REIT taxable years and (B) reasonable avoid entity level income Tax under Section 857 of the Code or excise Tax under Section 4981 of the Code. Notwithstanding the foregoing, no Restricted Payment shall be permitted under the foregoing clause (g) if (x) any Event of Default under clause (a) of Article VIII shall have occurred and customary accountingbe continuing based on the failure of any Borrower to pay any principal of, public company or interest on, any Loan or any reimbursement obligation in respect of any LC Disbursement, or any fee or other amount payable under this Agreement, when and as the same shall become due and payable and, in the case of payments of any interest, reimbursement obligations or fees, such failure continues unremedied for a period of five (5) Business Days or (y) any Event of Default under clause (g) or (h) of Article VIII shall have occurred and be continuing. Nothing herein shall be deemed to prohibit the payment of any dividend or distribution by any Subsidiary of the Company so long as such dividends or distributions are declared and paid ratably to the shareholders, partners and other overhead and administrative costs and expenses (exclusive equity holders of any markup or premium), including reasonable and customary director’s fees and expenses, incurred by the Parent in the ordinary course of businesssuch Subsidiary.

Restricted Payments. The Borrower and the Parent Guarantors will not, and will not permit any of their respective its Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, return any capital to its stockholders or make any distribution of their Property to their respective Equity Interest holders, except (ia) the Parent Borrower may declare and pay dividends or distributions with respect to its Equity Interests payable solely in additional shares of its Equity Interests common stock, (other than Disqualified Capital Stock); (iib) Subsidiaries of the Borrower may declare and pay dividends or distributions ratably with respect to their Equity Interests; (iii) so long as both before and immediately after giving effect to such Restricted Payment, (Ac) the Borrower may declare and pay the Merck Dividend, (d) the Borrower may make Restricted Payments pursuant to and in accordance with stock option plans or other benefit plans for management or employees of the Borrower and its Subsidiaries, (e) the Borrower may redeem, repurchase, retire, defease, or otherwise acquire any Equity Interests of the Borrower in exchange for, or out of the net cash proceeds of the sale (other than to a Subsidiary of the Borrower) within 30 days of, Equity Interests of the Borrower; and (f) provided that no Default or Event of Default has occurred and is continuing outstanding or would result therefrom, the Borrower may declare and pay cash dividends and make other Restricted Payments with respect to its Equity Interests if, at the time such dividend or other Restricted Payment is declared or made (after giving effect thereto), the aggregate principal amount of the cash dividends paid or other Restricted Payments made after the date hereof (excluding the Merck Dividend) does not exceed (i) if, at the time of any such Restricted Payment, the Facilities have a rating of at least "BBB-" and "Baa3" from S&P and Xxxxx'x, respectively, the sum of $25,000,000 plus (in the case of any such Restricted Payment made after December 31, 2003) 25% of Consolidated Net Income for the period from June 30, 2003 until the last day of the then most recently ended fiscal quarter and (ii) if, at the time of any such Restricted Payment, the Facilities do not have both the ratings specified in clause (i) or better, (x) in fiscal year 2003, $25,000,000, (y) in fiscal year 2004, the sum of $25,000,000 plus any portion pursuant to clause (x) which is unused for fiscal year 2003 and (z) in each fiscal year thereafter, the sum of $25,000,000 plus 25% of Consolidated Net Income for the previous fiscal year; provided that (A) any such portion of Consolidated Net Income applied in making Restricted Payments pursuant to this clause (z) shall be up to an amount equal to the portion of Excess Cash Flow for the previous fiscal year which is not required to be applied in prepayment of the Loans pursuant to Section 2.10, (B) no such portion of Consolidated Net Income may be so applied pursuant to this clause (z) if the Borrower has unused Commitments of not less than 20% of the total Commitments then in effect and (C) the Borrower's ratio of Consolidated Total Debt as of such time (including the effect of any Borrowings or other Debt used to make such Restricted Payment) to Consolidated EBITDA for the period of four fiscal quarters ending on the last day of the then most recently ended fiscal quarter immediately preceding the date of determination for which financial statements are available is equal quarter, exceeds 1.5:1 and (C) no such Restricted Payments made pursuant to or less than 3.00 to 1.00, the Borrower may declare and pay cash dividends to the Parent, and the Parent may declare and pay cash dividends to its Equity Interest holders; this clause (ivz) if no Default or Event of Default has occurred and is continuing or would exist after giving effect thereto, the repurchase or other acquisition of equity securities, limited partnership interest or units of the Parent not to shall in aggregate exceed $2,500,000 100,000,000 in the aggregate since the Eighth Amendment Effective Date, from employees, former employees, directors or former directors of the Parent or its Subsidiaries (or permitted transferees of such employees, former employees, directors or former directors), pursuant to the terms of the agreements (including employment agreements) or plans (or amendments thereto) or other arrangements approved by the board of directors of the Parent under which such equity securities, limited partnership interest or units were granted, issued or sold; and (v) the Borrower may declare and pay dividends or distributions to the Parent in an amount equal to (A) Taxes then due and owing by the Parent and (B) reasonable and customary accounting, public company and other overhead and administrative costs and expenses (exclusive of any markup or premium), including reasonable and customary director’s fees and expenses, incurred by the Parent in the ordinary course of businessfiscal year.

Restricted Payments. The Borrower and the Parent Guarantors will not, and nor will not it permit any of their respective Subsidiaries other Loan Party to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, return or incur any capital obligation (contingent or otherwise) to its stockholders or make any distribution of their Property to their respective Equity Interest holdersdo so, except that, (i) the Parent Borrower may declare and pay dividends or distributions with respect to its Equity Interests payable solely in additional shares of its Equity Interests (other than Disqualified Capital Stock); common stock, (ii) the Borrower may purchase, redeem and retire Equity Interests for aggregate consideration not exceeding, from and after July 25, 2011, $5,000,000, (iii) the Borrower may purchase, redeem and retire any Equity Interests using proceeds realized from the sale of additional shares of the common stock of Borrower, (iv) Subsidiaries of the Borrower may declare and pay dividends or distributions ratably with respect to their Equity Interests; , (iiiv) the Borrower may pay preferred dividends in cash up to a maximum aggregate amount of $90,000 per annum, (vi) so long as both before and immediately after giving effect to such Restricted Payment, (A) no Default or Event of Default has occurred and is continuing which has not been cured or waived, or would reasonably be expected to result therefrom, from such payment (B) the Borrower has unused Commitments of not less than 20% of the total Commitments then in effect and (C) the ratio of Total Debt as of such time (including the effect of any Borrowings or other Debt used to make such Restricted Payment) to EBITDA for the four fiscal quarters ending on the last day of the fiscal quarter immediately preceding the date of determination for which financial statements are available is equal to or less than 3.00 to 1.00a pro forma basis), the Borrower may declare and pay preferred dividends in cash dividends to the Parentin excess of $90,000 per annum if, and the Parent may declare and pay cash dividends to its Equity Interest holders; (iv) if no Default or Event of Default has occurred and is continuing or would exist after giving effect thereto, the repurchase Fixed Charge Coverage Ratio is equal to or other acquisition greater than 1.50 to 1.00, (vii) so long as no Event of equity securitiesDefault has occurred which has not been cured or waived, limited partnership or would reasonably be expected to result from such payment (on a pro forma basis), the Borrower may make payments in cash of accrued interest on Subordinated Debt (a) if, after giving effect thereto, the Fixed Charge Coverage Ratio is equal to or units greater than 1.50 to 1.00 or (b) if such cash payments are paid from the proceeds of the Parent not to exceed $2,500,000 in the aggregate since the Eighth Amendment Effective Date, from employees, former employees, directors or former directors issuance of the Parent or its Subsidiaries (or permitted transferees of such employees, former employees, directors or former directors), pursuant to the terms of the agreements (including employment agreements) or plans (or amendments thereto) or other arrangements approved by the board of directors of the Parent under which such equity securities, limited partnership interest or units were granted, issued or sold; new Equity Interests and (vviii) the Borrower may declare and pay dividends make payments of accrued interest on Subordinated Debt paid in kind or distributions to otherwise by capitalizing the Parent in an amount equal to (A) Taxes then due and owing by the Parent and (B) reasonable and customary accounting, public company and other overhead and administrative costs and expenses (exclusive of any markup or premium), including reasonable and customary director’s fees and expenses, incurred by the Parent in the ordinary course of businesssame.

Restricted Payments. The Borrower and the Parent Guarantors will shall not, and will shall not permit any of their respective Subsidiaries toRestricted Subsidiary, to (i) declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, return any capital to its stockholders or make any dividend payment or other distribution of their Property assets, properties, cash, rights, obligations or securities on account of any shares of any class of Capital Stock of the Borrower or such Restricted Subsidiary, (ii) make any payments with respect to their respective Equity Interest holdersAffiliate Subordinated Debt or make any redemption or repurchase of any Affiliate Subordinated Debt or (iii) purchase, except redeem or otherwise acquire for value any shares of any class of Capital Stock of the Borrower or Restricted Subsidiary or any warrants, rights or options to acquire any such shares, now or hereafter outstanding, or reduce its capital (ieach, a “Restricted Payment”); provided, however, that the Borrower may, and may permit its Restricted Subsidiaries to (w) the Parent may declare and pay dividends and other distributions within five (5) Business Days of the Closing Date, as contemplated by the Plan of Reorganization, in an amount not to exceed $250,000,000, (x) declare and make any dividend payment or distributions other distribution payable in Common Stock of the Borrower, (y) with respect to its Equity Interests any Restricted Subsidiary, declare and make any dividend payment or other distribution (A) payable solely in additional shares of its Equity Interests (other than Disqualified Capital Stock); (ii) Subsidiaries of to the Borrower may declare and pay dividends or distributions ratably with respect to their Equity Interests; any Restricted Subsidiary, or (iiiB) so long as both before and immediately where the Borrower or the Restricted Subsidiary which owns the Capital Stock in the payor receives at least its proportionate share thereof (after giving effect to the relative rights and preferences of the various classes of Capital Stock of such Restricted Paymentpayor), and (Az) with respect to the Borrower, if there is no Default or Event of Default has occurred and is continuing or none would result therefrom, take action specified in clause (Bi), (ii) the Borrower has unused Commitments of not less than 20% of the total Commitments then in effect and (Ciii) above (I) if, at the ratio of Total Debt as of such time (including the effect of any Borrowings or other Debt used to make such Restricted Payment) to EBITDA for the four fiscal quarters ending on the last day end of the fiscal quarter immediately preceding (including the date fourth fiscal quarter) of determination the Borrower for which financial statements are available is equal have been delivered to or the Administrative Agent, most recently preceding the date on which the Borrower takes such action, the Interest Coverage Ratio was at least 3.0 to 1.0, calculated on a rolling four fiscal quarter basis ending on the date of such financial statements and with effect from the date of such delivery of such financial statements (or, if at such time less than 3.00 to 1.00four fiscal quarters have ended since the Closing Date, the Borrower may declare and pay cash dividends to immediately preceding fiscal quarters commencing with the Parentfiscal quarter ending March 31, 2006), and the Parent may declare aggregate amount of payments made under this clause (z) of this Section 8.2 since the Closing Date (including the contemplated Restricted Payment and pay under clause (II) of this Section 8.2) is less than the sum of (a) 100% of cash dividends to its Equity Interest holders; on hand on the Closing Date (iv) if no Default or Event of Default has occurred and is continuing or would exist after giving effect thereto, the repurchase to all cash payments and distributions made or other acquisition of equity securities, limited partnership interest or units of the Parent not to exceed $2,500,000 in the aggregate since the Eighth Amendment Effective Date, from employees, former employees, directors or former directors of the Parent or its Subsidiaries (or permitted transferees of such employees, former employees, directors or former directors), be made pursuant to the terms Plan of Reorganization) plus (b) 100% of Free Cash Flow since the agreements Closing Date (including employment agreementsless any amounts of Free Cash Flow applied to prepay the Term Loans as required under Section 2.11) or plans (or amendments thereto) or other arrangements approved by the board of directors of the Parent under which such equity securities, limited partnership interest or units were granted, issued or sold; and (vII) the Borrower may declare and pay dividends or distributions to the Parent in an amount equal to the amount of interest payable by MAG with respect to the MAG Senior Notes within five (A5) Taxes then due and owing by the Parent and (B) reasonable and customary accounting, public company and other overhead and administrative costs and expenses (exclusive Business Days of any markup such distribution or premium), including reasonable and customary director’s fees and expenses, incurred by the Parent in the ordinary course of businessdividend.

Restricted Payments. The Borrower and the Parent Guarantors will shall not, and will shall not permit allow any of their respective its Subsidiaries to, declare or makemake any dividend payment or other distribution of assets, properties, cash, rights, obligations or securities on account of any shares of any class of its Equity Interests, or agree purchase, redeem or otherwise acquire for value any shares of any class of its Equity Interests or any warrants, rights or options to pay acquire such shares, now or makehereafter outstanding, or directly or indirectlyindirectly voluntarily prepay, defease or in substance defease, purchase, redeem, retire or otherwise acquire, any Indebtedness described in Section 7.04(i) or Section 7.04(j) (collectively, “Restricted Payment, return any capital to its stockholders or make any distribution of their Property to their respective Equity Interest holdersPayments”), except that (ia) the Parent any Subsidiary may declare and pay dividends and tax sharing payments and otherwise declare and make distributions of assets, properties, cash, rights, obligations or distributions with respect to its Equity Interests payable solely in additional securities on account of any shares of any class of its Equity Interests, in each case, to the Persons which own its Equity Interests; provided that the share of any of the foregoing made or paid to the Borrower and its other Subsidiaries is as least pro rata to the percentage of Equity Interests (in such Subsidiary owned by the Borrower and its other than Disqualified Capital Stock)Subsidiaries; (iib) Subsidiaries the Borrower may, so long as immediately preceding and after giving effect to any such repurchase, retirement, acquisition or purchase no Event of Default or Default shall have occurred, repurchase, retire or otherwise acquire Equity Interests of the Borrower may declare and pay dividends or distributions ratably with respect purchase any warrants, rights or options to their acquire such Equity Interests; (iiic) the Borrower may, so long as both before immediately preceding and after giving effect to any such payment no Event of Default or Default shall have occurred, pay cash dividends to its shareholders; (d) the Borrower or any Subsidiary may, so long as immediately preceding and after giving effect thereto no Event of Default or Default shall have occurred, prepay, defease, purchase, redeem or retire any Indebtedness described in Sections 7.04(i) and 7.04(j); provided, that in any event the Borrower may repay, prior to September 15, 2018, any principal amount upon the conversion or mandatory prepayment of any Convertible Indebtedness as long as such repayment complies with the immediately following sentence; and (e) the Borrower may make payments of interest on any Convertible Indebtedness. The repayment, prior to September 15, 2018, of any principal amount upon the conversion or mandatory prepayment of any Convertible Indebtedness may be made (A) pursuant to provisions that comply with Section 7.04(j)(ii), (B) if such payment is made solely in additional debt securities (on terms reasonably acceptable to the Administrative Agent) or equity securities or (C) if such payment is made in cash, so long as immediately preceding and after giving effect to such Restricted Payment, (A) payment no Default or Event of Default has or Default shall have occurred and is continuing or would result therefrom, (Bx) the Borrower has unused Commitments of not less than 20% of the total Commitments then in effect Sufficient Liquidity and (Cy) the ratio of Total Debt as of after giving effect to any such time (including the effect of any Borrowings or other Debt used to make such Restricted Payment) to EBITDA for the four fiscal quarters ending on the last day of the fiscal quarter immediately preceding the date of determination for which financial statements are available is equal to or less than 3.00 to 1.00payment, the Borrower may declare and pay cash dividends to the Parentis in pro forma compliance with each financial covenant set forth in Section 7.09. Issuances by a Person of stock options, and the Parent may declare and pay cash dividends to its Equity Interest holders; (iv) if no Default or Event of Default has occurred and is continuing or would exist after giving effect thereto, the repurchase restricted stock or other acquisition of equity securities, limited partnership interest or units of the Parent not stock-based compensation to exceed $2,500,000 in the aggregate since the Eighth Amendment Effective Date, from employees, former employeesofficers, directors or former directors of the Parent or its Subsidiaries (or permitted transferees and employees of such employees, former employees, directors or former directors), pursuant to the terms of the agreements (including employment agreements) or plans (or amendments thereto) or other arrangements approved by the board of directors of the Parent under which such equity securities, limited partnership interest or units were granted, issued or sold; and (v) the Borrower may declare and pay dividends or distributions to the Parent in an amount equal to (A) Taxes then due and owing by the Parent and (B) reasonable and customary accounting, public company and other overhead and administrative costs and expenses (exclusive of any markup or premium), including reasonable and customary director’s fees and expenses, incurred by the Parent in the ordinary course of businessPerson shall not constitute Restricted Payments.

Restricted Payments. The Borrower and the Parent Guarantors will not, and will not permit any of their respective Subsidiaries Subsidiary (other than any Excluded Subsidiary) to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, return any capital to its stockholders or make any distribution of their Property to their respective Equity Interest holders, except that (ia) the Parent may declare and pay dividends or distributions make Restricted Payments with respect to its Equity Interests payable or made solely in additional shares of its Equity Interests (other than Disqualified Capital Stock); Equity Interests) or payable or made with the net cash proceeds of the substantially concurrent issue of new Equity Interests (iiother than Disqualified Equity Interests) in Parent, (b) Subsidiaries of the Borrower may declare and pay dividends ratably (or distributions ratably on more favorable terms from the perspective of Parent) with respect to their Equity Interests, (c) Subsidiaries may declare and make any Restricted Payments made to Parent or the other Subsidiaries, (d) Parent may make repurchases of Equity Interests deemed to occur upon the “cashless exercise” of stock options or warrants or upon the vesting of restricted stock units, if such Equity Interests represent the exercise price of such options or warrants or represent withholding taxes due upon such exercise or vesting, (e) Parent and the Subsidiaries may purchase Equity Interests in non-Wholly Owned Subsidiaries from the minority owners thereof (whether by means of stock acquisition, self-tender, redemption or otherwise) and (f) Parent and the Subsidiaries may make Restricted Payments pursuant to and in accordance with stock option plans or other benefit plans for management or employees of Parent and the Subsidiaries; provided that Parent and any Subsidiary may make any Restricted Payments if (iiix) so long no Default shall have occurred and be continuing or would result therefrom and (y) Parent shall be in compliance with the covenant set forth in Section 6.10 as both before and immediately after of the end of the fiscal quarter of Parent most recently ended on or prior to the date of such Restricted Payment, giving pro forma effect to such Restricted Payment, (A) no Default or Event Payment and any related incurrence of Default has Indebtedness as if they had occurred and is continuing or would result therefrom, (B) the Borrower has unused Commitments of not less than 20% of the total Commitments then in effect and (C) the ratio of Total Debt as of such time (including the effect of any Borrowings or other Debt used to make such Restricted Payment) to EBITDA for the four fiscal quarters ending on the last day of the fiscal quarter immediately preceding the date of determination for which financial statements are available is equal to or less than 3.00 to 1.00, the Borrower may declare and pay cash dividends to the Parent, and the Parent may declare and pay cash dividends to its Equity Interest holders; (iv) if no Default or Event of Default has occurred and is continuing or would exist after giving effect thereto, the repurchase or other acquisition of equity securities, limited partnership interest or units of the Parent not to exceed $2,500,000 in the aggregate since the Eighth Amendment Effective Date, from employees, former employees, directors or former directors of the Parent or its Subsidiaries (or permitted transferees of such employees, former employees, directors or former directors), pursuant to the terms of the agreements (including employment agreements) or plans (or amendments thereto) or other arrangements approved by the board of directors of the Parent under which such equity securities, limited partnership interest or units were granted, issued or sold; and (v) the Borrower may declare and pay dividends or distributions to the Parent in an amount equal to (A) Taxes then due and owing by the Parent and (B) reasonable and customary accounting, public company and other overhead and administrative costs and expenses (exclusive of any markup or premium), including reasonable and customary director’s fees and expenses, incurred by the Parent in the ordinary course of businessquarter.

Restricted Payments. The Borrower and the Parent Guarantors will shall not, and will shall not permit any of their respective its Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, return any capital to its stockholders Equity Interest holders or make any distribution of their its Property to their respective its Equity Interest holders, except (ia) the Parent may declare and pay dividends or distributions with respect to its Equity Interests payable solely in additional shares of its Equity Interests (other than Disqualified Capital Stock); , (iib) the Parent’s 6.875% Series B Cumulative Convertible Perpetual Stock (the “Preferred Stock”) outstanding on the Closing Date may convert into Equity Interests pursuant to its terms, (c) Wholly-Owned Subsidiaries of the Borrower may declare and pay dividends or distributions ratably with respect to their Equity Interests; , (iiid) the Parent may make Restricted Payments pursuant to and in accordance with stock option plans or other benefit plans for management or employees of the Parent and its Subsidiaries, (e) so long as both before and immediately after giving effect to such Restricted Payment, (A) no Default or Event of Default has occurred and is continuing exists or would result therefrom, (B) the Borrower has unused Commitments of not less than 20% of the total Commitments then in effect and (C) the ratio of Total Debt as of such time (including the effect of any Borrowings or other Debt used to make such Restricted Payment) to EBITDA for the four fiscal quarters ending on the last day of the fiscal quarter immediately preceding the date of determination for which financial statements are available is equal to or less than 3.00 to 1.00, the Borrower may declare and pay cash dividends to the Parent, Parent and (f) the Parent may declare and pay cash dividends to its voluntarily Redeem or exchange Disqualified Capital Stock outstanding on the Closing Date, including the Preferred Stock, with the issuance of additional Equity Interest holders; Interests (ivother than Disqualified Capital Stock) if of the Parent in exchange for all or a portion of such Disqualified Capital Stock, including the Preferred Stock, so long as no Default or Event of Default has occurred and is continuing or would exist both before and after giving effect theretoto such Redemption or exchange and such Redemption or exchange occurs substantially contemporaneously with, and in any event within three Business Days following, the repurchase receipt of proceeds or other acquisition confirmation of equity securitiesexchange, limited partnership interest or units of the Parent not to exceed $2,500,000 as applicable, in the aggregate since the Eighth Amendment Effective Date, from employees, former employees, directors or former directors of the Parent or its Subsidiaries (or permitted transferees respect of such employees, former employees, directors Redemption or former directors), pursuant to the terms of the agreements (including employment agreements) or plans (or amendments thereto) or other arrangements approved by the board of directors of the Parent under which such equity securities, limited partnership interest or units were granted, issued or sold; and (v) the Borrower may declare and pay dividends or distributions to the Parent in an amount equal to (A) Taxes then due and owing by the Parent and (B) reasonable and customary accounting, public company and other overhead and administrative costs and expenses (exclusive of any markup or premium), including reasonable and customary director’s fees and expenses, incurred by the Parent in the ordinary course of businessexchange.

Restricted Payments. The (i) Declare or pay any dividend or other distribution, direct or indirect, on account of any Equity Interests of the Borrower, now or hereafter outstanding, (ii) make any repurchase, redemption, retirement, defeasance, sinking fund or similar payment, purchase or other acquisition for value, direct or indirect, of any Equity Interests of the Borrower and or any direct or indirect parent of the Parent Guarantors will notBorrower, and will not permit now or hereafter outstanding, (iii) make any of their respective Subsidiaries to, declare or makepayment to retire, or agree to pay or make, directly or indirectlyobtain the surrender of, any Restricted Paymentoutstanding warrants, options or other rights for the purchase or acquisition of shares of any class of Equity Interests of the Borrower, now or hereafter outstanding, (iv) return any capital Equity Interests to its stockholders any shareholders or other equity holders of the Borrower, or make any other distribution of their Property property, assets, shares of Equity Interests, warrants, rights, options, obligations or securities thereto as such or (v) pay any management fees or any other fees or expenses (including the reimbursement thereof by the Borrower) pursuant to their respective Equity Interest holdersany management, except consulting or other services agreement to any of the shareholders or other equityholders of the Borrower or other Affiliates or Affiliates of the Borrower; provided, however, (iA) the Parent Borrower may declare and pay dividends or make tax distributions (“Tax Distributions”) with respect to each Fiscal Year, in an aggregate amount equal to the amount of income tax liability the Borrower would have had for such Fiscal Year if the Borrower were an individual subject to Federal or state (in which its Equity Interests payable solely chief executive office or principal place of business is located) income tax at the highest applicable marginal tax rates in additional shares effect in each jurisdiction for such year and taking into account the deductibility of its Equity Interests (other than Disqualified Capital Stock); (ii) Subsidiaries the state income taxes for Federal purposes and the characterization of the income of the Borrower may declare and pay dividends as ordinary income or distributions ratably capital gains, as appropriate, provided that the Tax Distribution with respect to their Equity Interests; a Fiscal Year of the Borrower is paid by the Borrower within 20 days of (iiix) so long as both before the estimated tax payment date, in the amount of the estimated tax due on such date calculated in accordance with this proviso, (y) the date the tax return with respect to such taxes is due, or (z) the date the tax return with respect to such tax issue is due taking into account valid extensions, in the amount of such taxes less all prior Tax Distributions applicable to such Fiscal Year, provided, further, that at the election of the Collateral Agent, which the Collateral Agent may and, upon the direction of the Required Lenders, shall make by notice to the Borrower, no such payment shall be made if an Event of Default shall have occurred and immediately be continuing or would result from the making of any such payment and (B) after giving effect to such Restricted Paymentthe application of Collections with respect to the Covered Portion of Insurance Premium Loans in accordance with Section 2.05(d), (A) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, (B) from the Borrower has unused Commitments of not less than 20% of the total Commitments then in effect and (C) the ratio of Total Debt as of such time (including the effect making of any Borrowings or other Debt used to make such Restricted Payment) to EBITDA for the four fiscal quarters ending on the last day of the fiscal quarter immediately preceding the date of determination for which financial statements are available is equal to or less than 3.00 to 1.00payment, the Borrower may declare and pay cash dividends to the Parent, and the Parent may declare and pay cash dividends to its Equity Interest holders; (iv) if no Default or Event of Default has occurred and is continuing or would exist after giving effect thereto, the repurchase or other acquisition of equity securities, limited partnership interest or units of the Parent not to exceed $2,500,000 in the aggregate since the Eighth Amendment Effective Date, from employees, former employees, directors or former directors of the Parent or its Subsidiaries (or permitted transferees of such employees, former employees, directors or former directors), pursuant to the terms of the agreements (including employment agreements) or plans (or amendments thereto) or other arrangements approved by the board of directors of the Parent under which such equity securities, limited partnership interest or units were granted, issued or sold; and (v) the Borrower may declare and pay dividends or distributions on account of any Equity Interests of the Borrower with any Collections with respect to the Parent in Uncovered Portion of an amount equal to Insurance Premium Loan (A) Taxes then due and owing by the Parent and (B) reasonable and customary accounting, public company and other overhead and administrative costs and expenses (exclusive of any markup or premiumthan Salvage Collections), including reasonable and customary director’s fees and expenses, incurred by the Parent in the ordinary course of business.

Restricted Payments. The Borrower and the Parent Guarantors will not, and will not permit any of their respective its Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, return any capital to its stockholders or make any distribution of their Property to their respective Equity Interest holders, except (ia) the Parent Borrower may declare and pay dividends or distributions with respect to its Equity Interests Interests, make any other Restricted Payments, payable solely in additional shares of its Equity Interests common stock, (other than Disqualified Capital Stock); (iib) Subsidiaries of the Borrower may declare and pay dividends or distributions ratably with respect to their Equity Interests; , (iiic) the Borrower may make Restricted Payments pursuant to and in accordance with stock option plans or other benefit plans for management or employees of the Borrower and its Subsidiaries, (d) so long as both before as, at the time any such Restricted Payment is made and immediately after giving effect (including pro forma effect) thereto (and to such Restricted Paymentthe incurrence of any Indebtedness in connection therewith) (i) no Default or Event of Default shall have occurred and is continuing, (Aii) the Total Net Leverage Ratio is not greater than 2.50 to 1.00 and (iii) the Borrower is in compliance with the financial covenants set forth in Section 6.11, the Borrower and its Subsidiaries may make other Restricted Payments, (e) so long as no Default or Event of Default has occurred and is continuing or would result therefromarise after giving effect (including pro forma effect) thereto the Borrower and any Subsidiaries may repurchase Equity Interests from any current or former officer, director, employee or consultant to comply with Tax withholding obligations relating to Taxes payable by such Person upon the grant or award of such Equity Interests (or upon vesting thereof), (Bf) the Borrower so long as no Default or Event of Default has unused Commitments of not less than 20% of the total Commitments occurred and is then in continuing or would arise after giving effect and (C) the ratio of Total Debt as of such time (including the effect of any Borrowings or other Debt used to make such Restricted Paymentpro forma effect) to EBITDA for the four fiscal quarters ending on the last day of the fiscal quarter immediately preceding the date of determination for which financial statements are available is equal to or less than 3.00 to 1.00thereto, the Borrower and any Subsidiaries may declare purchase Equity Interests from present or former officers, directors or employees of the Borrower or any Subsidiary upon the death, disability, retirement or termination of employment or service of such officer, director or employee, in an aggregate amount not exceeding $5,000,000 in any fiscal year of the Borrower and pay cash dividends to the Parent, and the Parent may declare and pay cash dividends to its Equity Interest holders; (ivg) if so long as no Default or Event of Default has occurred and is continuing or would exist arise after giving effect (including pro forma effect) thereto, the repurchase or Borrower and any Subsidiaries may make other acquisition of equity securities, limited partnership interest or units Restricted Payments in an aggregate amount not exceeding $15,000,000 in any fiscal year of the Parent not to exceed $2,500,000 in the aggregate since the Eighth Amendment Effective Date, from employees, former employees, directors or former directors of the Parent or its Subsidiaries (or permitted transferees of such employees, former employees, directors or former directors), pursuant to the terms of the agreements (including employment agreements) or plans (or amendments thereto) or other arrangements approved by the board of directors of the Parent under which such equity securities, limited partnership interest or units were granted, issued or sold; and (v) the Borrower may declare and pay dividends or distributions to the Parent in an amount equal to (A) Taxes then due and owing by the Parent and (B) reasonable and customary accounting, public company and other overhead and administrative costs and expenses (exclusive of any markup or premium), including reasonable and customary director’s fees and expenses, incurred by the Parent in the ordinary course of businessBorrower.

Restricted Payments. The Borrower Parent and the Parent Guarantors Borrowers will not, and will not permit any of their respective Subsidiaries other Credit Party to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, return any capital to its stockholders stockholders, make any prepayment of Debt described in clause (a) of the definition of “Debt” (other than permitted prepayments of Loans outstanding under this Agreement), or make any distribution of their its Property to their respective its Equity Interest holders, except except, provided (i) no Default or Event of Default exists or would exist after giving effect to such distribution, prepayment or repurchase and (ii) total Credit Exposures of all of the Lenders do not exceed the Borrowing Base on the date any such distribution is declared or paid or prepayment or repurchase is made, (a) Restricted Subsidiaries may declare and pay dividends ratably with respect to their Equity Interests, (b) the Borrowers may make prepayments of Debt for borrowed money in an aggregate principal amount not to exceed $10,000,000 during any calendar year, (c) Parent may declare and pay dividends or distributions with respect to its Equity Interests common stock payable solely in additional shares of its Equity Interests common stock, and (other than Disqualified Capital Stock); (ii) Subsidiaries of the Borrower may declare and pay dividends or distributions ratably with respect to their Equity Interests; (iiid) so long as both before and immediately as, after giving effect to such Restricted Paymentrepurchase, (A) no Default or Event of Default has occurred and is continuing or would result therefrom, (B) the Borrower has unused amount by which the total Commitments of all of the Lenders exceeds the total Credit Exposures of all of the Lenders is not less than 20% twenty-five percent (25%) of the total Commitments Borrowing Base then in effect and (C) the ratio of Total Debt effect, Parent may repurchase Equity Interests issued by it to any CCMP Party as of such time (including the effect of any Borrowings or other Debt used to make such Restricted Payment) to EBITDA for the four fiscal quarters ending on the last day part of the fiscal quarter immediately preceding the date of determination for which financial statements are available is equal to or less than 3.00 to 1.00, the Borrower may declare and pay cash dividends to the Parent, and the Parent may declare and pay cash dividends to its Equity Interest holders; (iv) if no Default or Event of Default has occurred and is continuing or would exist after giving effect thereto, the repurchase or other acquisition of equity securities, limited partnership interest or units of the Parent Private Placement in an aggregate principal amount not to exceed $2,500,000 in 10,000,000 during the aggregate since the Eighth Amendment Effective Date, from employees, former employees, directors or former directors term of the Parent or its Subsidiaries (or permitted transferees of such employees, former employees, directors or former directors), pursuant to the terms of the agreements (including employment agreements) or plans (or amendments thereto) or other arrangements approved by the board of directors of the Parent under which such equity securities, limited partnership interest or units were granted, issued or sold; and (v) the Borrower may declare and pay dividends or distributions to the Parent in an amount equal to (A) Taxes then due and owing by the Parent and (B) reasonable and customary accounting, public company and other overhead and administrative costs and expenses (exclusive of any markup or premium), including reasonable and customary director’s fees and expenses, incurred by the Parent in the ordinary course of businessthis Agreement.

Restricted Payments. The Borrower and the Parent Guarantors will Loan Parties shall not, and will cause their Subsidiaries not permit any of their respective Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, make any Restricted Payment, return any capital except that the Loan Parties and their Subsidiaries may:(a) make Tax Distributions to its stockholders or Holdings (and, from the proceeds thereof, Holdings may make any distribution of their Property Tax Distributions to their respective Equity Interest holders, except (i) the Parent may declare and pay dividends or distributions with respect to its Equity Interests payable solely in additional shares holders of its Equity Interests (other than Disqualified Capital StockInterests), in each case, in the Ordinary Course of Business; (ii) Subsidiaries of the Borrower may declare and pay dividends or distributions ratably with respect to their Equity Interests; (iiiand(b) so long as both before and immediately after giving effect to such Restricted Payment, (A) no Default or Event of Default has occurred and is continuing or would occur as a result therefromthereof, (Bi) pay Permitted Management Fees in an amount not to exceed $850,000 per fiscal year; (ii) pay (or make Restricted Payments to allow Holdings or any direct or indirect parent thereof to pay) for the Borrower has unused Commitments repurchase, retirement or other acquisition or retirement for value of not less than 20% Equity Interests or Equity Interests Equivalents of Holdings (or of any direct or indirect parent thereof) held by any future, present or former employee, director, consultant or distributor (or any spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees of any of the total Commitments then in effect and (Cforegoing) of a Borrower or any of their Subsidiaries upon the ratio death, disability, retirement or termination of Total Debt as employment of any such time Person or otherwise pursuant to any employee or director equity plan, employee or director stock option or profits interest plan or any other employee or director benefit plan or any agreement (including any separation, stock subscription, shareholder or partnership agreement) with any employee, director, consultant or distributor of a Borrower or any of their Subsidiaries in an aggregate amount after the effect of Closing Date not to exceed, together with any Borrowings or payments made under any other Debt used to make such Restricted Payment) to EBITDA for the four fiscal quarters ending on the last day of the fiscal quarter immediately preceding the date of determination for which financial statements are available is equal to or less than 3.00 to 1.00Indebtedness permitted under Section 6.2(l), the Borrower may declare and pay cash dividends to the Parent$500,000 in any calendar year, and the Parent may declare and pay cash dividends to its Equity Interest holders; (iv) if in each case so long as no Default or Event of Default has occurred and is continuing or would exist occur as a result thereof; and (iii) provided that (1) the Loan Parties are in pro forma compliance with the Financial Covenants, after giving effect thereto, the repurchase or other acquisition of equity securities, limited partnership interest or units as of the Parent last day of the most recently ended Test Period, and (2) the Loan Parties’ have pro forma minimum Liquidity of at least $10,000,000, make Restricted Payments in an amount not to exceed $2,500,000 500,000 in the aggregate since the Eighth Amendment Effective Date, from employees, former employees, directors or former directors of the Parent or its Subsidiaries (or permitted transferees of such employees, former employees, directors or former directors), pursuant to the terms of the agreements (including employment agreements) or plans (or amendments thereto) or other arrangements approved by the board of directors of the Parent under which such equity securities, limited partnership interest or units were granted, issued or sold; and (v) the Borrower may declare and pay dividends or distributions to the Parent in an amount equal to (A) Taxes then due and owing by the Parent and (B) reasonable and customary accounting, public company and other overhead and administrative costs and expenses (exclusive of any markup or premium), including reasonable and customary director’s fees and expenses, incurred by the Parent in the ordinary course of businessaggregate.

Restricted Payments. The Borrower and the Parent Guarantors will Company shall not, and will shall not permit any of their respective its Restricted Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, : (i) declare or pay any Restricted Payment, return any capital to its stockholders dividend or make any other payment or distribution on account of the Company's or any of its Restricted Subsidiaries' Equity Interests (including, without limitation, any dividend, distribution or payment on account of such Equity Interests in connection with any merger or consolidation involving the Company or any of its Restricted Subsidiaries) or to the direct or indirect holders of the Company's or any of its Restricted Subsidiaries' Equity Interests in their Property to their respective Equity Interest holders, except capacity as such (i) the Parent may declare and pay other than dividends or distributions with respect to its Equity Interests payable solely in additional shares of its Equity Interests (other than Disqualified Capital Stock) of the Company); (ii) Subsidiaries purchase, -42- 50 redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Borrower may declare and pay dividends Company or distributions ratably with respect to their Equity Interestsany direct or indirect parent of the Company or other Affiliate of the Company; (iii) so long make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness that is subordinated to the Notes, except a payment of interest or principal at Stated Maturity; or (iv) make any Restricted Investment (all such payments and other actions set forth in clauses (i) through (iv) above being collectively referred to as both before "Restricted Payments"), unless, at the time of and immediately after giving effect to such Restricted Payment: no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof; and the Company would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 4.9 hereof; and such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company or any of its Restricted Subsidiaries after the date of this Indenture (excluding Restricted Payments permitted by clauses (ii), (iii) or (iv) of the next succeeding paragraph), is less than the sum of (i) 50% of the Consolidated Net Income of the Company for the period (taken as one accounting period) from the beginning of the Company's fiscal third quarter of fiscal 1999 to the end of the Company's most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit), plus (ii) 100% of the aggregate Net Cash Proceeds received by the Company as a contribution to its common equity capital or from the issue or sale since December 16, 1998 of Equity Interests of the Company (other than Disqualified Stock),or of Disqualified Stock or debt securities of the Company that have been converted into such Equity Interests (other than Equity Interests (or Disqualified Stock or convertible debt securities) sold to a Restricted Subsidiary of the Company and other than Disqualified Stock or convertible debt securities that have been converted into Disqualified Stock), plus (iii) to the extent not already included in Consolidated Net Income of the Company for such period without duplication, any Restricted Investment that was made by the Company or any of its Restricted Subsidiaries after December 16, 1998 is sold for cash or otherwise liquidated or repaid for cash, or any Unrestricted Subsidiary which is designated as an Unrestricted Subsidiary subsequent to December 16, 1998 is sold for cash or otherwise liquidated or repaid for cash, the lesser of (A) the cash return of capital with respect to such Restricted Investment or Unrestricted Subsidiary (less the cost of disposition, if any) and (B) the initial amount of such Restricted Investment or designated amount of such Unrestricted Subsidiary. The foregoing provisions shall not prohibit (i) the payment of any dividend within 60 days after the date of declaration thereof, if at said date of declaration such payment would have complied with the provisions of this Indenture; (ii) the redemption, repurchase, retirement, defeasance or other acquisition of any Indebtedness which is subordinated to the Notes or Equity Interests of the Company in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Subsidiary of the Company) of, other Equity Interests of the Company (other than any Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such redemption, repurchase, retirement, defeasance or other acquisition shall be excluded from clause (c)(ii) of the preceding paragraph; (iii) the defeasance, redemption, repurchase or other acquisition of Indebtedness which is subordinated to the Notes with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness; (iv) the payment of any dividend or distribution by a Restricted Subsidiary of the Company to the holders of its Common Equity Interests so long as the Company or such Restricted Subsidiary receives at least its pro rata share of such dividend or distribution in accordance with its Equity Interests; (v) the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company that are held by any member of the Company's (or any of its Restricted Subsidiaries') management pursuant to any management equity subscription agreement, or stock option agreement; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall not exceed $500,000 in any twelve month period; (vi) repurchases of Capital Stock deemed to occur upon the exercise of stock options if such Capital Stock represents a portion of the exercise price thereof or (vii) (a) the payment to Applica in an amount not to exceed $15.0 million at the Stated Maturity of the Applica Note and (b) redemptions of the Applica Note which are deemed to occur as a result of purchases of inventory from Applica in the ordinary course of business; provided that, with respect to clauses (ii), (iii), (v) and (vii)(a) above, no Default or Event of Default shall have occurred and be continuing immediately after such transaction. The amount of all Restricted Payments (other than cash) shall be the fair market value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company or such Restricted Subsidiary of the Company, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall be determined by the Board of Directors of the Company whose resolution with respect thereto shall be delivered to the Trustee, such determination to be based upon an opinion or appraisal issued by an investment banking firm (or, if an investment banking firm is generally not qualified to give such opinion or appraisal, by an appraisal firm) of national standing if such fair market value exceeds $5.0 million. Not later than the date of making any Restricted Payment, the Company shall deliver to the Trustee an Officers' Certificate stating that such Restricted Payment is permitted and setting forth the basis upon which the calculations required by this Section 4.7 were computed, together with a copy of any fairness opinion or appraisal required by this Indenture. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default. For purposes of making such determination, all outstanding Investments by the Company and its Restricted Subsidiaries (except to the extent repaid in cash) in the Subsidiary so designated will be deemed to be Restricted Payments at the time of such designation and will reduce the amount available for Restricted Payments under this covenant. All such outstanding Investments will be deemed to constitute Investments in an amount equal to the fair market value of such Investments at the time of such designation. Such designation will only be permitted if such Restricted Payment would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. Any designation of an Unrestricted Subsidiary by the Board of Directors shall be evidenced to the Trustee by filing with the Trustee a certified copy of the resolution of the Board of Directors of the Company giving effect to such designation and an Officers' Certificate certifying that such designation complied with the terms of the Indenture governing the designation of Unrestricted Subsidiaries and was permitted by this Section 4.7. If, at any time, any Unrestricted Subsidiary fails to meet the foregoing requirements as an Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary of the Company as of such date (and, if such Indebtedness is not permitted to be incurred as of such date under the covenant described under Section 4.9 hereof, the Company shall be in default of such covenant). The Board of Directors of the Company may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided that such designation shall be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of the Company of any outstanding Indebtedness of such Unrestricted Subsidiary and such designation shall only be permitted if (i) such Indebtedness is permitted under Section 4.9 hereof calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period and (ii) no Default or Event of Default has occurred would be in existence following such designation. DIVIDEND AND OTHER PAYMENT RESTRICTIONS AFFECTING RESTRICTED SUBSIDIARIES The Company shall not, and is continuing shall not permit any of its Restricted Subsidiaries to, directly or would result therefromindirectly, create or otherwise cause or suffer to exist or become effective any encumbrance or restriction on the ability of any Restricted Subsidiary of the Company to (i) (a) pay dividends or make any other distributions to the Company or any of its Restricted Subsidiaries (1) on its Capital Stock or (2) with respect to any other interest or participation in, or measured by, its profits, or (b) pay any Indebtedness owed to the Company or any of its Restricted Subsidiaries, (Bii) make loans or advances to the Borrower has unused Commitments Company or any of not less than 20% its Restricted Subsidiaries or (iii) transfer any of its properties or assets to the total Commitments then Company or any of its Restricted Subsidiaries, except for such encumbrances or restrictions existing under or by reason of (a) Existing Indebtedness as in effect and (C) the ratio of Total Debt as of such time (including the effect of any Borrowings or other Debt used to make such Restricted Payment) to EBITDA for the four fiscal quarters ending on the last day of the fiscal quarter immediately preceding the date of determination for which financial statements this Indenture, (b) the Amended and Restated Credit Agreement as in effect as of the date of this Indenture, and any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings thereof, provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are available is equal no more restrictive with respect to such dividend and other payment restrictions than those contained in the Amended and Restated Credit Agreement as in effect on the date of this Indenture, (c) this Indenture and the Notes, (d) applicable law, (e) any instrument governing Indebtedness or less than 3.00 to 1.00, Capital Stock of a Person acquired by the Borrower may declare and pay cash dividends Company or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the Parentextent such Indebtedness was incurred in connection with or in contemplation of such acquisition), and which encumbrance or restriction is not applicable to any Person, or the Parent may declare and pay cash dividends to its Equity Interest holders; (iv) if no Default properties or Event assets of Default has occurred and is continuing any Person, other than the Person, or would exist after giving effect thereto, the repurchase property or other acquisition of equity securities, limited partnership interest or units assets of the Parent not to exceed $2,500,000 Person, so acquired, provided that, in the aggregate since the Eighth Amendment Effective Datecase of Indebtedness, from employees, former employees, directors or former directors of the Parent or its Subsidiaries (or such Indebtedness was permitted transferees of such employees, former employees, directors or former directors), pursuant to by the terms of the agreements this Indenture to be incurred, (including employment agreementsf) or plans (or amendments thereto) or other arrangements approved by the board reason of directors of the Parent under which such equity securities, limited partnership interest or units were granted, issued or sold; and (v) the Borrower may declare and pay dividends or distributions to the Parent customary non-assignment provisions in an amount equal to (A) Taxes then due and owing by the Parent and (B) reasonable and customary accounting, public company and other overhead and administrative costs and expenses (exclusive of any markup or premium), including reasonable and customary director’s fees and expenses, incurred by the Parent leases entered into in the ordinary course of businessbusiness and consistent with past practices, (g) purchase money obligations for property acquired in the ordinary course of business that impose restrictions of the nature described in clause (iii) above -45- 53 on the property so acquired or (h) Permitted Refinancing Indebtedness, provided that the restrictions contained in the agreements governing such Permitted Financing Indebtedness are no more restrictive, than those contained in the agreements governing the Indebtedness being refinanced.

Restricted Payments. The Borrower and the Parent Guarantors No Loan Party will, nor will not, and will not it permit any of their respective Subsidiaries Restricted Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, return or incur any capital obligation (contingent or otherwise) to its stockholders or make any distribution of their Property to their respective Equity Interest holdersdo so, except except: (a) (i) the Parent Holdings may declare and pay dividends or distributions with respect to its Equity Interests payable solely in additional shares of its Qualified Equity Interests (other than Disqualified Capital Stock); Interests, and (ii) Restricted Subsidiaries of the Borrower may declare and pay dividends dividends, make other distributions or distributions make other Restricted Payments ratably with respect to their Equity InterestsInterests (or, if not ratably, on a basis more favorable to Holdings and such Subsidiaries); (iiib) the Borrower may make Restricted Payments to Holdings to permit Holdings to make, and Holdings may make any Restricted Payments paid in cash to shareholders of Holdings, so long as both before and immediately after giving effect to such Restricted Payment, (Ai) no Default or Event of Default has occurred and is continuing or would immediately result therefrom, therefrom (Bii) the Borrower has unused Commitments of not less than 20% of the total Commitments then in immediately before and after giving effect and (C) the ratio of Total Debt as of such time (including the effect of any Borrowings or other Debt used to make such Restricted Payment) to EBITDA , the Loan Parties shall be in pro forma compliance with the Financial Covenant for the four fiscal quarters ending on the last day of the fiscal quarter immediately preceding the date of determination most recently ended Reference Period for which financial statements are available is equal have been (or were required to or less than 3.00 to 1.00, the Borrower may declare and pay cash dividends be) delivered to the Parent, Administrative Agent and (iii) the Parent may declare and pay cash dividends Total Net Leverage Ratio for the most recently ended Reference Period for which financial statements have been (or were required to its Equity Interest holders; be) delivered to the Administrative Agent does not exceed 6.00 to 1.00 on a pro forma basis (iv) if no Default or Event of Default has occurred and is continuing or would exist after giving effect theretoto the making of such Restricted Payment); provided, that, to the repurchase extent any such cash Restricted Payment has been publically announced prior to the date on which such Restricted Payment is to be made, such Restricted Payment shall be permitted on the applicable scheduled date notwithstanding the Total Net Leverage Ratio as calculated on such scheduled date so long as such Restricted Payment would have been permitted to be made on the date on which it was publically announced; (c) issuances of Equity Interests to sellers of Permitted Acquisitions in satisfaction of obligations of the type described in Section 6.01(j); (d) Holdings may repurchase, redeem, retire or otherwise acquire for value Equity Interests (including any stock appreciation rights in respect thereof or pursuant to and in accordance with stock option plans or other acquisition equity or benefit plans) of Holdings from current or former employees, officers or directors; provided, that the aggregate annual cash payments in respect of such repurchases, redemptions, retirements and acquisitions (which for the avoidance of doubt shall not include net settlements of equity securitiesawards to satisfy tax withholding obligations) shall not exceed the greater of $5 million or 5% of EBITDA for the most recently ended Reference Period for which financial statements have been (or were required to be) delivered to the Administrative Agent; (e) in addition to Restricted Payments otherwise expressly permitted by this Section 6.07, limited partnership interest or units of the Parent Restricted Payments in an aggregate amount not to exceed the greater of (i) $2,500,000 20 million and (ii) 20% of EBITDA for the most recently ended Reference Period for which financial statements have been (or were required to be) delivered to the Administrative Agent; (f) Holdings may make cash payments in the aggregate since the Eighth Amendment Effective Date, from employees, former employees, directors or former directors lieu of the Parent issuance of fractional shares representing insignificant interests in Holdings in connection with the exercise of warrants, options or its Subsidiaries other securities convertible into or exchangeable for Equity Interests in Holdings; (or permitted transferees g) Holdings may repurchase Equity Interests upon the exercise of stock options, deferred stock units and restricted shares if such Equity Interests represent a portion of the exercise price of such employeesstock options, former employees, directors deferred stock units or former directors), pursuant to the terms of the agreements (including employment agreements) or plans (or amendments thereto) or other arrangements approved by the board of directors of the Parent under which such equity securities, limited partnership interest or units were granted, issued or sold; and (v) the Borrower may declare and pay dividends or distributions to the Parent in an amount equal to (A) Taxes then due and owing by the Parent and (B) reasonable and customary accounting, public company and other overhead and administrative costs and expenses (exclusive of any markup or premium), including reasonable and customary director’s fees and expenses, incurred by the Parent in the ordinary course of business.restricted shares;

Restricted Payments. The Borrower and the Parent Guarantors Credit Parties will not, and nor will not they permit any of their respective Subsidiaries Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, declare, order, make or set apart any sum for or pay any Restricted Payment, return except (a) to make dividends payable solely in the same class of Capital Stock of such Person, (b) to make dividends or other distributions payable to the Borrower (directly or indirectly through its Subsidiaries), (c) to make non-cash payment-in-kind interest payments related to the Seller Subordinated Note, (d) any capital repurchase or other acquisition of the Borrower’s Capital Stock under the terms of stock purchase agreements or similar agreements or arrangements pursuant to which the Borrower has or may in the future have the right to repurchase options in respect of the Borrower’s Capital Stock from former directors or employees of, or former consultants to, the Borrower as a result of a termination of any such person’s employment by or service to the Borrower or otherwise in accordance with similar provisions of any option awards or similar arrangements entered into by the Borrower from time to time, if after giving effect thereto the aggregate amount of such purchases, redemptions, retirements and acquisitions paid or made in any fiscal year is not in excess of $1,000,000, (e) payments made by ESI to its stockholders owners or make on the ESI Indebtedness, (f) payments on Subordinated Debt incurred pursuant to and in accordance with Section 6.1(d) and (e), subject to the terms and conditions of any distribution subordination agreement entered into pursuant to Section 6.1(d) and (e) in favor of their Property to their respective Equity Interest holdersthe Lenders, except (g) payments on the GenCorp Earn Out Obligations so long as (i) the Parent may declare Administrative Agent and pay dividends or distributions with respect the Lenders have received the audited financial statements required to its Equity Interests payable solely in additional shares of its Equity Interests (other than Disqualified Capital Stock); be delivered pursuant to Section 5.1(a) for the fiscal year ending September 30, 2006, and (ii) Subsidiaries the Borrower shall have demonstrated to the reasonable satisfaction of the Borrower may declare and pay dividends or distributions ratably with respect to their Equity Interests; (iii) so long as both before and immediately Administrative Agent that, after giving effect to any such Restricted Paymentpayment on a pro forma basis, (A) no Default or Event of Default has occurred and is continuing or would result therefromexists, (B) the Borrower has unused Commitments of not less than 20% of Credit Parties and their Subsidiaries are in compliance with the total Commitments then financial covenants set forth in effect Section 5.9 and (C) the ratio Total Leverage Ratio does not exceed 3.00 to 1.00 (it being understood and agreed that such payment may be made up to the amount that would not exceed a Total Leverage Ratio of Total Debt as of 3.00 to 1.00 in the quarter with respect to which the calculation is then being made with additional installments to be made in subsequent quarters, if necessary, up to such time amount) and (including the effect of any Borrowings or other Debt used to make such Restricted Paymenth) to EBITDA repay up to $6,500,000 of the outstanding principal amount of the Subordinated Seller Note together with any accrued and unpaid interest on the principal amount being paid so long as (i) the Administrative Agent and the Lenders have received the audited financial statements required to be delivered pursuant to Section 5.1(a) for the four fiscal quarters year ending on September 30, 2007, and (ii) the last day Borrower shall have demonstrated to the reasonable satisfaction of the fiscal quarter immediately preceding the date of determination for which financial statements are available is equal Administrative Agent that, after giving effect to or less than 3.00 to 1.00any such payment on a pro forma basis, the Borrower may declare and pay cash dividends to the Parent, and the Parent may declare and pay cash dividends to its Equity Interest holders; (ivA) if no Default or Event of Default has occurred and is continuing or would exist after giving effect theretoexists, the repurchase or other acquisition of equity securities, limited partnership interest or units of the Parent not to exceed $2,500,000 in the aggregate since the Eighth Amendment Effective Date, from employees, former employees, directors or former directors of the Parent or its Subsidiaries (or permitted transferees of such employees, former employees, directors or former directors), pursuant to the terms of the agreements (including employment agreements) or plans (or amendments thereto) or other arrangements approved by the board of directors of the Parent under which such equity securities, limited partnership interest or units were granted, issued or sold; and (v) the Borrower may declare and pay dividends or distributions to the Parent in an amount equal to (A) Taxes then due and owing by the Parent and (B) reasonable the Credit Parties and customary accounting, public company their Subsidiaries are in compliance with the financial covenants set forth in Section 5.9 and other overhead and administrative costs and expenses (exclusive of any markup or premium), including reasonable and customary director’s fees and expenses, incurred by C) the Parent in the ordinary course of businessTotal Leverage Ratio does not exceed 2.75 to 1.00.

Restricted Payments. The Borrower and the Parent Guarantors Borrowers will not, and will not permit any of their respective Subsidiaries to, declare or make, or agree to pay or make, directly or indirectlyindirectly (including, without limitation, on a synthetic basis through Derivative Obligations), any Restricted Payment, return except, so long as no Default shall be continuing or would occur after giving effect to the following, (a) any capital to its stockholders or make any distribution of their Property to their respective Equity Interest holders, except (i) the Parent Borrower may declare and pay dividends or distributions with respect to its Equity Interests payable solely in additional shares of its Equity Interests Interests, (other than Disqualified Capital Stock); (iib) Subsidiaries of the Borrower may declare and pay dividends or distributions ratably with respect to their Equity Interests, (c) PVH may make Restricted Payments, pursuant to and in accordance with stock option plans or other benefit plans for management or employees of PVH and its subsidiaries, or issue options or warrants as otherwise approved by the Board of Directors of PVH or a committee thereof, (d) PVH may redeem, purchase or retire the Preferred Stock (Convertible) to the extent permitted by Section 6.05, and (e) PVH may acquire shares of its common stock only and declare and pay cash dividends with respect to its common and preferred stock (including its Preferred Stock (Convertible); provided that Restricted Payments made pursuant to clause (iiie) so long as shall not exceed $40,000,000 in the aggregate in any fiscal year; provided, further, that PVH may not acquire shares of its common stock or pay cash dividends pursuant to clause (e) in any fiscal quarter to the extent that (i) the Restricted Payment would not be permitted in such fiscal quarter under the Senior Notes Indentures, (ii) Average Availability for the 30 day period prior to the date of such Restricted Payment, both before and immediately after giving effect to such Restricted Payment, (A) no Default or Event of Default has occurred and is continuing or would result therefromshall be less than $50,000,000, (Biii) based on projections provided to, and in form and substance reasonably satisfactory to, the Borrower has unused Commitments of not less than 20% of Administrative Agent, Average Availability for the total Commitments then in effect and (C) 30 day period following the ratio of Total Debt as of such time (including the effect of any Borrowings or other Debt used to make closing date for such Restricted Payment) , after giving effect to EBITDA for the four fiscal quarters ending on the last day of the fiscal quarter immediately preceding the date of determination for which financial statements are available is equal to or such Restricted Payment, shall be less than 3.00 to 1.00, the Borrower may declare and pay cash dividends to the Parent, and the Parent may declare and pay cash dividends to its Equity Interest holders; $50,000,000 or (iv) if no a Default exists or Event of Default has occurred and is continuing or would exist after giving effect thereto, the repurchase or other acquisition of equity securities, limited partnership interest or units of the Parent not to exceed $2,500,000 in the aggregate since the Eighth Amendment Effective Date, from employees, former employees, directors or former directors of the Parent or its Subsidiaries (or permitted transferees making of such employees, former employees, directors or former directors), pursuant to the terms of the agreements (including employment agreements) or plans (or amendments thereto) or other arrangements approved by the board of directors of the Parent under which such equity securities, limited partnership interest or units were granted, issued or sold; and (v) the Borrower may declare and pay dividends or distributions to the Parent Restricted Payment would result in an amount equal to (A) Taxes then due and owing by the Parent and (B) reasonable and customary accounting, public company and other overhead and administrative costs and expenses (exclusive of any markup or premium), including reasonable and customary director’s fees and expenses, incurred by the Parent in the ordinary course of businessa Default.

Restricted Payments. The Borrower and the Parent Guarantors will not, and will not permit any of their respective Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, return any capital to its stockholders or make any distribution of their Property to their respective Equity Interest holders, except (ia) the Parent may declare and pay dividends or distributions with respect to its Equity Interests payable solely in additional shares of its Equity Interests (other than Disqualified Capital Stock); (iiSection 9.03(a)(ii) Subsidiaries of the Borrower Credit Agreement is hereby amended by (x) inserting, immediately after the phrase "qualifies as a "real estate investment trust" under the Code," appearing therein the phrase "(A) until the occurrence of the Reorganization Merger Date," and (y) inserting the following new text immediately at the end thereof: "and (B) at all times from and after the Reorganization Merger Date, (a) Starwood REIT may declare and pay regularly accruing dividends or distributions ratably on any Qualified Preferred Stock issued by it in accordance with respect to their Equity Interests; (iiithe provisions of Section 9.14(c) so long as both before and immediately after giving effect to such Restricted PaymentQualified Preferred Stock bears dividends consistent with then prevailing market conditions (as determined in good faith by Starwood REIT) at the time of the issuance of the respective Qualified Preferred Stock), (Ab) no Default Starwood REIT may pay Dividends to the Corporation or Event of Default has occurred and is continuing or would result therefrom, (B) the Borrower has unused Commitments of not less than 20% of the total Commitments then in effect any Wholly-Owned Subsidiary thereof and (Cc) during any period of twelve consecutive calendar months ending after the ratio of Total Debt as of such time Reorganization Merger Date (including the effect but excluding that portion of any Borrowings or other Debt used to make such Restricted Payment) to EBITDA for the four fiscal quarters ending on the last day of the fiscal quarter immediately preceding the date of determination for twelve month period which financial statements are available is equal to or less than 3.00 to 1.00, the Borrower may declare and pay cash dividends occurs prior to the ParentReorganization Merger Date), and the Parent Starwood REIT may declare and pay cash dividends to its Equity Interest holders; shareholders (ivexcluding (x) if no Default or Event of Default has occurred the Corporation and is continuing or would exist after giving effect thereto, the repurchase or other acquisition of equity securities, limited partnership interest or units of the Parent any Wholly-Owned Subsidiary thereof and (y) dividends paid by Starwood REIT on any Qualified Preferred Stock) for such period in an aggregate amount not to exceed the lesser of (A) $2,500,000 150,000,000 (with the dollar amount otherwise provided in this clause (A) to be increased, but only for periods ended after the aggregate since the Eighth Amendment Effective Date, from employees, former employees, directors or former directors date of the Parent or its Subsidiaries (or permitted transferees of such employeesrespective increase, former employees, directors or former directors), pursuant to the terms on each anniversary of the agreements (including employment agreements) or plans (or amendments thereto) or other arrangements approved Reorganization Merger Date by the board of directors of the Parent under which such equity securities, limited partnership interest or units were granted, issued or sold; and (v) the Borrower may declare and pay dividends or distributions to the Parent in an amount equal to 20% of the dollar amount as permitted pursuant to this clause (A) Taxes then due and owing by the Parent as same was in effect immediately before such increase and (B) reasonable and customary accounting, public company and other overhead and administrative costs and expenses (exclusive 15% of any markup or premium), including reasonable and customary director’s fees and expenses, incurred by the Parent in the ordinary course of businessAdjusted Funds From Operations for such period."

Restricted Payments. The Borrower and the Parent Guarantors will not, and will not permit any of their respective Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, No Credit Party shall make any Restricted Payment, return any capital except (a) asset or Stock transfers permitted under Section 6.1, (b) intercompany loans permitted under Section 6.3, (c) restricted payments consisting of cash dividends paid to its stockholders to Newco for the purposes set forth in clause (f) below and to Parent, First Intermediate Parent and Second Intermediate Parent so long as no Event of Default shall have occurred and be continuing and concurrently with the payment of each such dividend Parent, First Intermediate Parent and Second Intermediate Parent (as applicable) shall pay a dividend to Newco for the purposes set forth in clause (f) below or make any distribution an intercompany loan or a cash contribution to equity in a corresponding amount of their Property Borrower, First Intermediate Parent or Second Intermediate Parent to their respective Equity Interest holdersbe invested subject to Control Letters in accordance with Section 6.2, except (d) payments consisting of payments of principal or interest with respect to the Subordinated Note; provided that (i) no Event of Default shall have occurred and be continuing as of the Parent may declare and pay dividends date of such payment or distributions with respect to its Equity Interests payable solely in additional shares of its Equity Interests (other than Disqualified Capital Stock)after giving effect thereto; (ii) Subsidiaries such payments shall be funded solely with the proceeds of the Borrower may declare and pay dividends or distributions ratably with respect to their Equity Interestsa Qualified Public Offering; (iii) so long as both before and immediately after giving effect to such Restricted Payment, (A) no Default Newco shall loan or Event of Default has occurred and is continuing or would result therefrom, (B) the Borrower has unused Commitments of not less than 20% contribute at least $9,000,000 of the total Commitments then in effect and (C) the ratio proceeds of Total Debt as of such time (including the effect of any Borrowings or other Debt used to make such Restricted Payment) to EBITDA for the four fiscal quarters ending on the last day of the fiscal quarter immediately preceding the date of determination for which financial statements are available is equal to or less than 3.00 to 1.00, the Borrower may declare and pay cash dividends that Qualified Public Offering to the Parent, and the Parent may declare and pay cash dividends to its Equity Interest holderscapital of Borrower; (iv) if no Default or Event of Default has occurred and is continuing or would exist after giving effect thereto, any Seasonal Over-Advance outstanding at the repurchase or other acquisition of equity securities, limited partnership interest or units of the Parent not to exceed $2,500,000 in the aggregate since the Eighth Amendment Effective Date, from employees, former employees, directors or former directors of the Parent or its Subsidiaries (or permitted transferees time of such employees, former employees, directors or former directors), pursuant payment shall be reduced to the terms of the agreements (including employment agreements) or plans (or amendments thereto) or other arrangements approved by the board of directors of the Parent under which such equity securities, limited partnership interest or units were granted, issued or soldzero; and (v) the Borrower Seasonal Over-Advance shall irrevocably cease to be available, and Schedule A shall be deemed to be amended to delete all references thereto, (e) payments to Seller in satisfaction of warranty claims by Seller under the Acquisition Agreement and payment to Seller of the amount by which Final Working Capital exceeds $85,000,000 under the terms of (and as defined in) the Acquisition Agreement, and (f) Newco may declare redeem Stock of former employees of any of the Loan Parties in accordance with Sections 3 and pay dividends or distributions to 4 of the Parent Shareholder Agreement in an amount equal not to (A) Taxes then due and owing by exceed $250,000 in a period of 12 months. Nothing contained in this Section shall affect the Parent and (B) reasonable and customary accounting, public company and other overhead and administrative costs and expenses (exclusive Borrower's right to a Seasonal Over- Advance if no proceeds of a Qualified Public Offering are used to make any markup or premium), including reasonable and customary director’s fees and expenses, incurred by payment with respect to the Parent in the ordinary course of businessSubordinated Note.

Restricted Payments. The Borrower and the Parent Guarantors will not, and will its Subsidiaries shall not permit any of their respective Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted PaymentPayment other than (a) expense reimbursements and payments of salary, return bonuses, equity, benefits and other compensation in the ordinary course of business of the Borrower or any capital to its stockholders or make any distribution of their Property to their respective Equity Interest holders, except (i) the Parent may declare and pay dividends or distributions with respect to its Equity Interests payable solely in additional shares of its Equity Interests Subsidiaries, as applicable, (other than Disqualified Capital Stock); (iib) Subsidiaries of the Borrower may declare and pay dividends make dividend payments or other distributions ratably with respect to their Equity Interestspayable solely in its Capital Stock; (iiic) so long as both before repurchases of Capital Stock in the Borrower deemed to occur upon exercise of stock options or warrants if such Capital Stock represents a portion of the exercise price of such options or warrants; (d) cash payments in lieu of the issuance of fractional shares in connection with the exercise of warrants, options or other securities convertible into or exchangeable for Capital Stock of Borrower (provided however that any such cash payment shall not be for the purpose of evading the limitations of this covenant); and immediately (e) dividends by a Subsidiary of the Borrower to the Borrower or to another Subsidiary of the Borrower (provided that dividends made by a Loan Party must be received by another Loan Party and, in the case of a dividend by a non-Wholly Owned Subsidiary of the Borrower, to the Borrower and any other Subsidiary and to each other owner of Capital Stock of such Subsidiary based on their relative ownership interests of the relevant class of Capital Stock); unless in each case other than pursuant to clause (e) above, (i) Lender shall have received not less than ten (10) Business Days’ prior written notice of Borrower’s intention to declare or make, or agreement to declare or make, such Restricted Payment, and (ii) after giving effect to such Restricted Payment, (A) except in the case of Restricted Payments funded by the proceeds of new equity capital raised by the Borrower, Excess Borrowing Availability shall be no less than $3,000,000, and (B) no Default or Event of Default has shall exist or have occurred and is continuing or would result therefrom, (B) the Borrower has unused Commitments of not less than 20% of the total Commitments then in effect and (C) the ratio of Total Debt as of such time (including the effect of any Borrowings or other Debt used to make such Restricted Payment) to EBITDA for the four fiscal quarters ending on the last day of the fiscal quarter immediately preceding the date of determination for which financial statements are available is equal to or less than 3.00 to 1.00, the Borrower may declare and pay cash dividends to the Parent, and the Parent may declare and pay cash dividends to its Equity Interest holders; (iv) if no Default or Event of Default has occurred and is continuing or would exist after giving effect thereto, the repurchase or other acquisition of equity securities, limited partnership interest or units of the Parent not to exceed $2,500,000 in the aggregate since the Eighth Amendment Effective Date, from employees, former employees, directors or former directors of the Parent or its Subsidiaries (or permitted transferees of such employees, former employees, directors or former directors), pursuant to the terms of the agreements (including employment agreements) or plans (or amendments thereto) or other arrangements approved by the board of directors of the Parent under which such equity securities, limited partnership interest or units were granted, issued or sold; and (v) the Borrower may declare and pay dividends or distributions to the Parent in an amount equal to (A) Taxes then due and owing by the Parent and (B) reasonable and customary accounting, public company and other overhead and administrative costs and expenses (exclusive of any markup or premium), including reasonable and customary director’s fees and expenses, incurred by the Parent in the ordinary course of businessbe continuing.

Restricted Payments. The Borrower and Each of the Parent Guarantors Credit Parties will not, and nor will not it permit any of their respective its Restricted Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, declare, order, make or set apart any sum for or pay any Restricted Payment, return except (a) to make dividends or other distributions payable solely in the same class of Equity Interests of such Person; (b) to make dividends or other distributions payable to any capital Credit Party (directly or indirectly through Subsidiaries); (c) subject to the subordination terms thereof, to make regularly scheduled interest payments under any Subordinated Indebtedness; (d) the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Borrower or any Restricted Subsidiary of the Borrower held by any current or former officer, director or employee of the Borrower or any of its stockholders Restricted Subsidiaries pursuant to any equity subscription agreement, stock option agreement, shareholders’ agreement or make any distribution of their Property to their respective Equity Interest holders, except similar agreement; provided that (i) the Parent may declare and pay dividends aggregate price paid for all such repurchased, redeemed, acquired or distributions with respect to its retired Equity Interests payable solely may not exceed $25,000,000 in additional shares any twelve (12)-month period plus the portion of its such amount available but unused from prior twelve (12)-month periods and (ii) such amount in any calendar year may be increased by an amount not to exceed (A) the net cash proceeds received by the Borrower from the sale of Equity Interests (other than Disqualified Capital Stock); (ii) Subsidiaries of the Borrower may declare to members of management or directors of the Borrower and pay dividends or distributions ratably with respect its Restricted Subsidiaries that occurs after the Closing Date (to their the extent such cash proceeds from the sale of such Equity Interests; (iii) so long as both before and immediately after giving effect Interests have not otherwise been applied to such the payment of Restricted PaymentPayments), (A) no Default or Event of Default has occurred and is continuing or would result therefrom, plus (B) the net cash proceeds of key man life insurance policies received by the Borrower has unused Commitments of not and its Restricted Subsidiaries after the Closing Date, less than 20% of the total Commitments then in effect and (C) the ratio of Total Debt as of such time (including the effect amount of any Borrowings or other Debt used to make such Restricted Payment) to EBITDA for the four fiscal quarters ending on the last day of the fiscal quarter immediately preceding the date of determination for which financial statements are available is equal to or less than 3.00 to 1.00, the Borrower may declare and pay cash dividends to the Parent, and the Parent may declare and pay cash dividends to its Equity Interest holders; (iv) if no Default or Event of Default has occurred and is continuing or would exist after giving effect thereto, the repurchase or other acquisition of equity securities, limited partnership interest or units of the Parent not to exceed $2,500,000 in the aggregate since the Eighth Amendment Effective Date, from employees, former employees, directors or former directors of the Parent or its Subsidiaries (or permitted transferees of such employees, former employees, directors or former directors), Payments made pursuant to the terms of the agreements clauses (including employment agreementsii)(A) or plans (or amendments thereto) or other arrangements approved by the board of directors of the Parent under which such equity securities, limited partnership interest or units were granted, issued or sold; and (vii)(B) the Borrower may declare and pay dividends or distributions to the Parent in an amount equal to of this clause (A) Taxes then due and owing by the Parent and (B) reasonable and customary accounting, public company and other overhead and administrative costs and expenses (exclusive of any markup or premiumd), including reasonable and customary director’s fees and expenses, incurred by the Parent in the ordinary course of business.; 112

Restricted Payments. The Borrower and the Parent Guarantors will not, and nor will not it permit any of their respective Subsidiaries Restricted Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, declare, order, make or set apart any sum for or pay any Restricted Payment, return except (a) to make dividends payable solely in the same class of Equity Interests or Hybrid Equity Securities of such Person, and to make other payments or satisfy other obligations through the issuance of Equity Interests of such Person, (b) to make dividends or other distributions payable to any capital Loan Party (directly or indirectly through Subsidiaries, and, in the case of dividends or other distributions paid by Subsidiaries, ratably to other Persons that own the applicable class of Equity Interests in such Subsidiary), (c) to make dividends to or repurchases from the Borrower or the holders of ownership interests of such Restricted Subsidiary the proceeds of which shall be used to pay taxes that are then due and payable, (d) in the case of a Receivables Financing SPC, to make Restricted Payments to its stockholders owners to the extent of net income or other assets available therefor under applicable law, (e) Subsidiaries that are not Loan Parties may make Restricted Payments to other Subsidiaries that are not Loan Parties, (f) the Borrower may redeem or repurchase Equity Interests or other stock-based awards under any distribution stock option plan, incentive plan, compensation plan or other benefit plan from officers, employees and directors of any Loan Party or any of its Subsidiaries (or their Property estates, spouses or former spouses) upon the death, permanent disability, retirement or termination of employment of any such Person or otherwise, so long as (i) no Default has occurred and is continuing and (ii) the aggregate amount of cash used to their respective effect Restricted Payments pursuant to this clause (f) in any fiscal year of Borrower does not exceed $10,000,000; (g) repurchases of Equity Interest holdersInterests or other stock-based awards under any stock option plan, except incentive plan, compensation plan or other benefit plan that occur or are deemed to occur upon the exercise of any such awards to the extent representing a portion of the exercise price of such award; (h) to the extent constituting Restricted Payments, the Borrower and its Subsidiaries may enter into and consummate transactions expressly permitted by Section 8.04; (i) the Parent Borrower may declare and pay dividends or distributions with respect to its Equity Interests payable solely in additional purchase fractional shares of its Equity Interests arising out of stock dividends, splits, combinations or business combinations (other than Disqualified Capital Stockprovided such transaction shall not be for the purpose of evading this limitation); (j) to make other Restricted Payments so long as at the time of the making thereof and after giving effect thereto on a Pro Forma Basis, (i) no Default shall have occurred and/or be continuing or be directly or indirectly caused as a result thereof and (ii) Subsidiaries of the Borrower is in compliance with the financial covenants set forth in Section 8.11; provided that if the Consolidated Net Leverage Ratio (calculated on a Pro Forma Basis after giving effect to such Restricted Payment) would be greater than 3.75 to 1.0, the Borrower may declare and pay dividends or distributions ratably with respect only make Restricted Payments pursuant to their Equity Interests; this clause (iiij) so long as both before and immediately if, after giving effect to such Restricted Payment, the aggregate amount of all such Restricted Payments made pursuant to this clause (Aj) no Default or Event of Default has occurred and is continuing or would result therefrom, after the Initial Funding Date does not exceed $75,000,000 less the Applicable Warrant Transaction Reduction Amount (B) the Borrower has unused Commitments of not less than 20% determined as of the total Commitments then in effect and (C) the ratio date of Total Debt as of such time (including the effect of any Borrowings or other Debt used to make such Restricted Payment) to EBITDA for the four fiscal quarters ending on the last day of the fiscal quarter immediately preceding the date of determination for which financial statements are available is equal to or less than 3.00 to 1.00, the Borrower may declare and pay cash dividends to the Parent, and the Parent may declare and pay cash dividends to its Equity Interest holders); (iv) if no Default or Event of Default has occurred and is continuing or would exist after giving effect thereto, the repurchase or other acquisition of equity securities, limited partnership interest or units of the Parent not to exceed $2,500,000 in the aggregate since the Eighth Amendment Effective Date, from employees, former employees, directors or former directors of the Parent or its Subsidiaries (or permitted transferees of such employees, former employees, directors or former directors), pursuant to the terms of the agreements (including employment agreements) or plans (or amendments thereto) or other arrangements approved by the board of directors of the Parent under which such equity securities, limited partnership interest or units were granted, issued or sold; and (vk) the Borrower may declare enter into Capped Call Transactions, Convertible Bond Hedge Transactions and Warrant Transactions in connection with the issuance of Convertible Bond Indebtedness permitted under Section 8.01(f) and satisfy its obligations to pay dividends or distributions premiums upon entering into such transactions; (l) the Borrower may issue shares of its common capital stock to the Parent satisfy obligations in an amount equal to (A) Taxes then due and owing by the Parent respect of Convertible Bond Indebtedness; and (Bm) reasonable and customary accounting, public company and other overhead and administrative costs and expenses (exclusive the Borrower may receive shares of its common capital stock on account of net share settlements or terminations of any markup Convertible Bond Hedge Transactions or premium), including reasonable and customary director’s fees and expenses, incurred by the Parent Warrant Transactions entered into in the ordinary course of businessconnection with Convertible Bond Indebtedness.

Restricted Payments. The Borrower and the Parent Guarantors Company will not, and nor will not it permit any of their respective its Subsidiaries to, (a) declare or makepay any dividends on its capital stock, or agree to pay or make, directly or indirectly, any Restricted Payment, return any capital to its stockholders or authorize or make any distribution other distribution, payment or delivery of their Property property or cash to their respective Equity Interest holdersits stockholders in respect of its capital stock, except (ib) redeem, repurchase or otherwise acquire or retire, directly or indirectly, any of its capital stock or the capital stock of the Parent may declare and pay dividends at any time outstanding (or distributions any options, warrants or rights issued with respect to its Equity Interests payable solely in additional shares capital stock) or (c) make any payment or prepayment of its Equity Interests (other than Disqualified Capital Stock); (ii) Subsidiaries principal of, premium, if any, or interest on, redemption, conversion, exchange, purchase, retirement, defeasance, sinking fund or similar payment with respect to, any Subordinated Debt or set aside any funds for any of the Borrower may declare and pay dividends or distributions ratably with respect to their Equity Interests; foregoing purposes (iiicollectively, the "Restricted Payments"), except: (i) so long as both before and immediately after giving effect to such Restricted Payment, (A) no Default or Event of Unmatured Default has shall have occurred and is be continuing or would result therefrom, (B) the Borrower has unused Commitments of not less than 20% of the total Commitments then in effect and (C) the ratio of Total Debt as of such time (including the effect of any Borrowings or other Debt used to make such Restricted Payment) to EBITDA for the four fiscal quarters ending on the last day of the fiscal quarter immediately preceding the date of determination for which financial statements are available is equal to or less than 3.00 to 1.00, the Borrower may declare and pay cash dividends to the Parent, and the Parent may declare and pay cash dividends to its Equity Interest holders; (iv) if no Default or Event of Default has occurred and is continuing or would exist after giving effect thereto, the repurchase or other acquisition of equity securities, limited partnership interest or units of the Parent not to exceed $2,500,000 in the aggregate since the Eighth Amendment Effective Date, from employees, former employees, directors or former directors of the Parent or its Subsidiaries (or permitted transferees of such employees, former employees, directors or former directors), pursuant to the terms of the agreements (including employment agreements) or plans (or amendments thereto) or other arrangements approved by the board of directors of the Parent under which such equity securities, limited partnership interest or units were granted, issued or sold; and (v) the Borrower Company may declare and pay dividends to the Parent for the purposes of repurchasing the Parent's stock but only to the extent such stock repurchases constitute Permitted Stock Repurchases by the Parent, PROVIDED, HOWEVER, prior to the payment of any such dividend by the Company, the Parent shall have delivered to the Administrative Agent an officer's certificate executed by an Authorized Officer of the Parent stating that the proceeds of such dividends shall be used by the Parent for the repurchase of Parent's stock which purchase constitutes a Permitted Stock Repurchase; (ii) so long as no Default or distributions Unmatured Default shall have occurred and be continuing or would result therefrom, the Company may declare and pay dividends during any fiscal year in an amount not to exceed 50% of Excess Cash Flow for the immediately preceding fiscal year, PROVIDED, HOWEVER, in any fiscal year (the "Current Fiscal Year") in which the Leverage Ratio was equal to or greater than 5.00 to 1.00 at the end of such preceding fiscal year, the Company shall only be permitted to pay dividends to the Parent in an amount equal not to exceed 25% of Excess Cash Flow during the Current Fiscal Year; (Aiii) Taxes then due any Wholly-Owned Subsidiary may declare and owing pay dividends to the Company; (iv) so long as no Default or Unmatured Event of Default shall have occurred and be continuing or would result therefrom, the Company may declare and pay dividends to the Parent in an amount necessary to permit the Parent to satisfy its legally required obligations in respect of dissenter's rights for shareholders of the Parent; (v) the Company may make the scheduled periodic payments of interest in respect of any Subordinated Debt permitted under Section 6.11(g) in accordance with the terms thereof (as in effect on the Effectiveness Date or, if such Subordinated Debt is issued after the Effectiveness Date, on the date of issuance of such Subordinated Debt or as amended in accordance with the terms of this Agreement), but subject to the subordination provisions contained in the Senior Subordinated Debt Indentures, the Citicasters Subordinated Debt Indenture or other indenture, agreement or instrument pursuant to which such Subordinated Debt is issued, as applicable; and (vi) the Company may defease the Citicasters Subordinated Debt. The Parent may use dividends and distributions permitted by clause (ii) of this Section 6.10 for any corporate purpose, including the repurchase of Parent's stock; and stock so repurchased shall not be considered to be Permitted Stock Repurchases in calculating the limitation on Permitted Stock Repurchases. Neither the assumption nor the payment of Indebtedness of any Person being acquired by the Parent and (B) reasonable and customary accountingas part of a Permitted Acquisition shall be deemed to be prohibited by this Section 6.10, public company and other overhead and administrative costs and expenses (exclusive whether such Indebtedness is paid directly by the Company or any of its Subsidiaries or is paid with the proceeds of any markup dividend or premium), including reasonable and customary director’s fees and expenses, incurred other distribution by the Parent in Company to the ordinary course of businessParent, so long as the acquired Person is immediately upon the acquisition thereof contributed to the Company as a capital contribution.

Restricted Payments. The Borrower and the Parent Guarantors will not, and will not permit Permit any of their respective Subsidiaries to, declare or make, or agree Consolidated Party to pay or make, directly or indirectly, declare, order, make or set apart any sum for or pay any Restricted Payment, return any except (a) to make dividends or other distributions payable to the Company(directly or indirectly through Subsidiaries), (b) as expressly permitted by Section 7.02 and (c) to pay dividends or capital gains distributions to its stockholders or make any distribution the Company’s shareholders and/or repurchase shares of their Property to their respective Equity Interest holdersthe Company’s Capital Stock, except provided (i) such payments are permitted under the Parent may declare and pay dividends or distributions with respect to its Equity Interests payable solely in additional shares of its Equity Interests (other than Disqualified Capital Stock); Senior Unsecured Note Indenture, (ii) Subsidiaries of the Borrower may declare and pay dividends or distributions ratably with respect to their Equity Interests; (iii) so long as both before and immediately after giving effect to such Restricted Payment, (A) no Default or Event of Default has occurred shall exist on the date of, or shall result from, the making of any such payments, and is continuing or (iii) upon giving effect on a Pro Forma Basis to such transaction, the Borrowers would result therefrombe in compliance with the financial covenants set forth in Section 7.11(a)-(d), (Bd) to make distributions necessary solely for the Borrower has unused Commitments of not less than 20% purposes of the total Commitments then in effect Company qualifying for or maintaining its REIT status, and (Ciii) such distributions are permitted under the ratio of Total Debt as of such time Senior Unsecured Note Indenture, (including the effect of any Borrowings or other Debt used e) to make such Restricted Payment) to EBITDA for the four fiscal quarters ending purchases, repurchases or redemptions of Senior Unsecured Notes on the last day of the fiscal quarter immediately preceding the date of determination for which financial statements are available is equal to open market or less than 3.00 to 1.00, the Borrower may declare and pay cash dividends pursuant to the ParentSenior Unsecured Note Indenture, and the Parent may declare and pay cash dividends to its Equity Interest holders; provided (ivi) if no Default or Event of Default has occurred shall exist on the date of, or shall result from, the making of any such distributions and is continuing or would exist after (ii) upon giving effect theretoon a Pro Forma Basis to such transaction, the repurchase Borrowers would be in compliance with the financial covenants set forth in Section 7.11(a)-(d) and (f) to make purchases, repurchases or other acquisition of equity securities, limited partnership interest or units redemptions of the Parent not to exceed $2,500,000 in Senior Subordinated Notes on the aggregate since the Eighth Amendment Effective Date, from employees, former employees, directors open market or former directors of the Parent or its Subsidiaries (or permitted transferees of such employees, former employees, directors or former directors), pursuant to the terms Senior Subordinated Indenture, provided (i) no Default or Event of Default shall exist on the agreements (including employment agreements) date of, or plans (or amendments thereto) or other arrangements approved by shall result from, the board making of directors of the Parent under which any such equity securities, limited partnership interest or units were granted, issued or sold; distributions and (vii) upon giving effect on a Pro Forma Basis to such transaction, the Borrower may declare and pay dividends or distributions to Borrowers would be in compliance with the Parent financial covenants set forth in an amount equal to (A) Taxes then due and owing by the Parent and (B) reasonable and customary accounting, public company and other overhead and administrative costs and expenses (exclusive of any markup or premiumSection 7.11(a)-(d), including reasonable and customary director’s fees and expenses, incurred by the Parent in the ordinary course of business.

Restricted Payments. The Borrower and the Parent Guarantors will not, and will not permit Declare or pay any of their respective Subsidiaries to, declare or makedividend on, or agree to pay make any payment or makeother distribution on account of, or purchase, redeem, retire or otherwise acquire (directly or indirectly), or set apart assets for a sinking or other analogous fund for the purchase, redemption, retirement or other acquisition of, any Restricted Paymentclass of Equity Interests of any Credit Party or any Subsidiary thereof, return any capital to its stockholders or make any distribution of their Property cash, property or assets to their respective the holders of shares of any Equity Interest holdersInterests of any Credit Party or any Subsidiary thereof (all of the foregoing, except the “Restricted Payments”) provided that: (ia) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Parent Borrower or any of its Subsidiaries may declare and pay dividends or distributions with respect to its Equity Interests payable solely in additional shares of its own Qualified Equity Interests (other than Disqualified Capital Stock)Interests; (iib) Subsidiaries any Subsidiary of the Borrower may declare and pay dividends or distributions ratably with respect make Restricted Payments to their Equity Interestsany Credit Party; (iiic) so long as both before any Non-Credit Party may make Restricted Payments to any other Non-Credit Party (and, if applicable, to other holders of its outstanding Equity Interests on a ratable basis); (d) Restricted Payments pursuant to and immediately after giving effect in accordance with stock option plans or other benefit plans for directors, management, employees or consultants of the Borrower and its Subsidiaries in an aggregate amount not to such exceed $10,000,000 in any Fiscal Year; and (e) the Borrower shall be permitted to make Restricted Payment, Payments; provided that (Ai) no Default or Event of Default has occurred and is continuing or would result therefrom, and (Bii) the Borrower has unused Commitments of not less than 20% of pro forma Consolidated Total Leverage Ratio based on the total Commitments then in most recent financial statements that have been delivered pursuant to Section 7.1(a) or (b), as applicable, calculated on a pro forma basis after giving effect and (C) the ratio of Total Debt as of such time (including the effect of any Borrowings or other Debt used to make such Restricted Payment) to EBITDA for the four fiscal quarters ending on the last day of the fiscal quarter immediately preceding the date of determination for which financial statements are available is equal to or less than , does not exceed 3.00 to 1.00, the Borrower may declare and pay cash dividends to the Parent, and the Parent may declare and pay cash dividends to its Equity Interest holders; (iv) if no Default or Event of Default has occurred and is continuing or would exist after giving effect thereto, the repurchase or other acquisition of equity securities, limited partnership interest or units of the Parent not to exceed $2,500,000 in the aggregate since the Eighth Amendment Effective Date, from employees, former employees, directors or former directors of the Parent or its Subsidiaries (or permitted transferees of such employees, former employees, directors or former directors), pursuant to the terms of the agreements (including employment agreements) or plans (or amendments thereto) or other arrangements approved by the board of directors of the Parent under which such equity securities, limited partnership interest or units were granted, issued or sold; and (v) the Borrower may declare and pay dividends or distributions to the Parent in an amount equal to (A) Taxes then due and owing by the Parent and (B) reasonable and customary accounting, public company and other overhead and administrative costs and expenses (exclusive of any markup or premium), including reasonable and customary director’s fees and expenses, incurred by the Parent in the ordinary course of business.. 97 142128979_6 170630523_7

Restricted Payments. The Borrower and the Parent Guarantors Borrowers will not, and will not permit any of their respective Subsidiaries Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, return any capital to its stockholders or make any distribution of their Property to their respective Equity Interest holders, except (ia) the Parent Company may declare and pay dividends or distributions with respect to its Equity Interests payable solely in additional shares of its Equity Interests common or preferred stock, (other than Disqualified Capital Stock); (iib) Subsidiaries of the Borrower may declare and pay dividends or make other distributions ratably with respect to their Equity Interests; , (iiic) the Company may make Restricted Payments pursuant to and in accordance with stock option plans or other benefit plans of the Company and its Subsidiaries for participants in such plans, (d) the Company may make withholdings, redemptions or repurchases of shares that are awarded pursuant to the Company’s equity incentive plans, stock award plans, or other benefit plans, in such amounts as may be sufficient to pay any withholding or other taxes owed by the Company or the plan participant relating to such shares, (e) the Company may make cashless repurchases of Equity Interests deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants, and (f) the Company and the Subsidiaries may make other Restricted Payments without limit, so long as both before and immediately after giving effect to such Restricted Payment, (A) no Default or Event of Default has occurred and is continuing or would result therefrom; provided, that if at the time such Restricted Payment is to be made pursuant to this gsdocs.8556767.13 clause (B) f), the Borrower has unused Commitments of not less than 20% of the total Commitments then in effect Consolidated Senior Net Leverage Ratio, measured on a pro forma basis (with Consolidated Senior Funded Debt, consolidated cash and (C) the ratio of Total Debt consolidated Cash Equivalent Investments measured as of such time (including date and Consolidated EBITDA measured for the Reference Period then most recently ended for which the Company has delivered Financial Statements), exceeds 2.75:1.00, then after giving effect to the making of any Borrowings or other Debt used to make such Restricted Payment, the aggregate amount of all Restricted Payments made pursuant to this clause (f) to EBITDA for shall not exceed $30,000,000 in such fiscal year. For the four fiscal quarters ending avoidance of doubt, any Restricted Payment made in reliance on the last day foregoing clause (f) shall not constitute usage of the fiscal quarter immediately preceding the date of determination basket for which financial statements are available is equal to or less than 3.00 to 1.00, the Borrower may declare and pay cash dividends to the Parent, and the Parent may declare and pay cash dividends to its Equity Interest holders; (iv) if no Default or Event of Default has occurred and is continuing or would exist after giving effect thereto, the repurchase or other acquisition of equity securities, limited partnership interest or units of the Parent not to exceed $2,500,000 Investments in the aggregate since the Eighth Amendment Effective Date, from employees, former employees, directors or former directors of the Parent or its Subsidiaries (or permitted transferees of such employees, former employees, directors or former directorsSection 6.04(r), pursuant to the terms of the agreements (including employment agreements) or plans (or amendments thereto) or other arrangements approved by the board of directors of the Parent under which such equity securities, limited partnership interest or units were granted, issued or sold; and (v) the Borrower may declare and pay dividends or distributions to the Parent in an amount equal to (A) Taxes then due and owing by the Parent and (B) reasonable and customary accounting, public company and other overhead and administrative costs and expenses (exclusive of any markup or premium), including reasonable and customary director’s fees and expenses, incurred by the Parent in the ordinary course of business.

Restricted Payments. The Borrower and the Parent Guarantors will not, and will not permit any of their respective Subsidiaries to, declare or make, or agree to pay Declare or make, directly or indirectly, any Restricted Payment; provided that, return any capital to its stockholders or make any distribution of their Property to their respective Equity Interest holders, except (i) (a) each Loan Party and each Subsidiary may declare or make, directly or indirectly, any Restricted Payment required to qualify and maintain such Loan Party’s qualification as a real estate investment trust under Sections 856 through 860 of the Code, and (b) each Loan Party and each Subsidiary may declare or make, directly or indirectly, any Restricted Payment required to avoid the payment of federal or state income or excise tax; which permitted Restricted Payments under clauses (i)(a) and (i)(b), for the avoidance of doubt, include Restricted Payments from the Borrower to its equity holders in order for the Parent may declare and pay dividends or distributions Guarantor to comply with respect to its Equity Interests payable solely in additional shares of its Equity Interests (other than Disqualified Capital Stock); the foregoing, (ii) Subsidiaries so long as no Default shall have occurred and be continuing or would result therefrom, each Loan Party and each Subsidiary may purchase, redeem, retire, acquire, cancel or terminate Equity Interests issued by such Loan Party or such Subsidiary so long as immediately after giving effect thereto the Parent Guarantor is in compliance on a Pro Forma Basis with the requirements of the Borrower may declare and pay dividends or distributions ratably with respect to their Equity Interests; Section 7.10(e), (iii) so long as both before and immediately after giving effect to such Restricted Payment, (A) no Default or Event of Default has shall have occurred and is be continuing or would result therefrom, each Loan Party and each Subsidiary may make any payment on account of any return of capital to the Parent Guarantor’s stockholders, partners or members (Bor the equivalent Person thereof), (iv) each Loan Party and each Subsidiary may declare and make dividend payments, other distributions or other Restricted Payments payable solely in the Equity Interests in such Person, (v) any Subsidiary may at any time make Restricted Payments to the Parent Guarantor, the Borrower has unused Commitments or any other Subsidiary and, solely to the extent such Restricted Payments to other holders of not less than 20% its Equity Interests are required by its Organization Documents, to such other holders of the total Commitments then in effect Equity Interests, and (Cvi) the ratio of Total Debt as of such time each Loan Party and each Subsidiary may declare or make, directly or indirectly, any Restricted Payment within sixty (including the effect of any Borrowings or other Debt used to make such Restricted Payment60) to EBITDA for the four fiscal quarters ending on the last day of the fiscal quarter immediately preceding days after the date of determination for which financial statements are available is equal declaration thereof, if on the date of declaration of such payment, such payment would have been permitted pursuant to or less than 3.00 to 1.00another clause of this Section 7.06 and, on the Borrower may declare and pay cash dividends to the Parentdate of such payment, and the Parent may declare and pay cash dividends to its Equity Interest holders; (iv) if no Default under Section 8.01(a), (f) or Event of Default has (g) shall have occurred and is continuing or would exist after giving effect thereto, the repurchase or other acquisition be continuing. 7.07 Change in Nature of equity securities, limited partnership interest or units Business. Engage in any material line of the Parent not to exceed $2,500,000 in the aggregate since the Eighth Amendment Effective Date, business substantially different from employees, former employees, directors or former directors those lines of the Parent or business conducted by each Loan Party and its Subsidiaries on the date hereof or any business substantially related or incidental thereto. 7.08 Transactions with Affiliates. Enter into any transaction of any kind with any Affiliate of any Loan Party (other than transactions between or among a Loan Party and a Subsidiary (including any entity that becomes a Subsidiary as a result of such transaction) (or permitted transferees of such employees, former employees, directors or former directorsany combination thereof)), pursuant to the terms of the agreements (including employment agreements) whether or plans (or amendments thereto) or other arrangements approved by the board of directors of the Parent under which such equity securities, limited partnership interest or units were granted, issued or sold; and (v) the Borrower may declare and pay dividends or distributions to the Parent in an amount equal to (A) Taxes then due and owing by the Parent and (B) reasonable and customary accounting, public company and other overhead and administrative costs and expenses (exclusive of any markup or premium), including reasonable and customary director’s fees and expenses, incurred by the Parent not in the ordinary course of business., except (i) transactions on fair and reasonable terms substantially as favorable to such Loan Party or such Subsidiary as would be obtainable by such Loan Party or such Subsidiary at the time in a comparable arm’s-length transaction with a Person other than an Affiliate, (ii) payments of compensation, perquisites and fringe benefits arising out of any employment or consulting relationship in the ordinary course of business, (iii) making Restricted Payments permitted by this Agreement,

Restricted Payments. The Borrower and the Parent Guarantors will not, and will not permit any of their respective Subsidiaries to, declare or make, or agree to pay or makeMake, directly or indirectly, any Restricted Payment, return any capital to its stockholders or make any distribution of their Property to their respective Equity Interest holders, except that: (a) (i) the Parent Borrower may make Restricted Payments to Holdings and (ii) each Subsidiary may make Restricted Payments to (x) the Borrower, any Subsidiaries of the Borrower that are Guarantors and (y) any other Person that owns a direct Equity Interest in such Subsidiary, in each case, ratably according to their respective holdings of the type of Equity Interest in respect of which such Restricted Payment is being made; (b) Holdings, the Borrower and each Subsidiary may declare and pay dividends make dividend payments or other distributions with respect to its Equity Interests payable solely in additional shares of its the common stock or other Equity Interests (other than Disqualified Capital StockEquity Interests) of such Person; (c) Holdings, the Borrower and each Subsidiary may purchase, redeem or otherwise acquire its Equity Interests with the proceeds received from the substantially concurrent issue of new Equity Interests (other than Disqualified Equity Interests); (ii) Subsidiaries of the Borrower may declare and pay dividends or distributions ratably with respect to their Equity Interests; (iiid) so long as both before no Event of Default has occurred or is continuing, Holdings, the Borrower and immediately each Subsidiary may repurchase (and Holdings may make Restricted Payments to any of its direct or indirect parent companies (including PublicCo) to the extent necessary to permit such Persons to repurchase) the Equity Interests held by any employee, director, member of management, officer, manager or consultant (or any Affiliate or immediate family member thereof) in an amount not to exceed $20,000,000; provided that such amount of Restricted Payments permitted to be made under this clause (d) shall be increased by 10% each calendar year (beginning with the calendar year ending December 31, 2020) but in no event shall such amount exceed $30,000,000; (e) the Borrower and Holdings may make any Restricted Payments so long as (i) at the time and after giving effect to such Restricted Payment, (A) thereto no Default or Event of Default has shall have occurred and is be continuing or would result therefrom, and (Bii) the Borrower has unused Commitments of not less than 20% of the total Commitments then shall be in effect and (Cpro forma compliance with Section 7.10(a) the ratio of Total Debt as of such time (including the effect of any Borrowings or other Debt used to make such Restricted Payment) to EBITDA for the four fiscal quarters ending on the last day of the fiscal quarter immediately preceding the date of determination for which financial statements are available is equal to or less than 3.00 to 1.00, the Borrower may declare and pay cash dividends to the Parent, and the Parent may declare and pay cash dividends to its Equity Interest holders; (iv) if no Default or Event of Default has occurred and is continuing or would exist after giving effect thereto, the repurchase or other acquisition of equity securities, limited partnership interest or units of the Parent not to exceed $2,500,000 in the aggregate since the Eighth Amendment Effective Date, from employees, former employees, directors or former directors of the Parent or its Subsidiaries ; (or permitted transferees of such employees, former employees, directors or former directors), pursuant f) (i) Holdings may make Permitted Tax Distributions and (ii) Holdings may make Restricted Payments to the terms extent necessary to permit any of the agreements its direct or indirect parent companies (including employment agreementsPublicCo and PWP Professionals) or plans (or amendments thereto) or other arrangements approved by the board of directors of the Parent under which such equity securities, limited partnership interest or units were granted, issued or sold; and (v) the Borrower may declare and to pay dividends or distributions to the Parent in an amount equal to (A) Taxes then due and owing by the Parent and (B) reasonable and customary accounting, public company and other overhead and general administrative costs and expenses of the Borrower and any Subsidiary (exclusive of any markup including corporate overhead, legal or premium), including reasonable similar expenses and customary director’s fees salary, bonus and expensesother benefits payable to directors, incurred by the Parent in the ordinary course of business.officers, 94 #96922345v9

Restricted Payments. The Borrower and Neither the Parent Guarantors will not, and will not permit Borrowers nor any of their respective Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, will make any Restricted PaymentPayments except that, return (a) any capital to its stockholders or make any distribution of their Property to their respective Equity Interest holders, except (i) the Parent may declare and pay dividends or distributions with respect to its Equity Interests payable solely in additional shares of its Equity Interests Borrower (other than Disqualified Capital Stock); (iiHexcel) Subsidiaries and any Subsidiary of the Borrowers may make or pay any dividends to the direct or indirect holder of the equity interest in such Borrower may declare and pay dividends or distributions ratably with respect to their Equity Interests; such Subsidiary (iiiexcluding the holders of equity interests in Hexcel), (b) so long as both before and immediately after giving effect to such Restricted Payment, (A) no Default or Event of Default has occurred and is continuing then exists or would result therefromfrom such payment, Hexcel may make Restricted Payments with respect to (i) employee or director stock options, stock incentive plans or restricted stock plans of Hexcel which are compensatory in nature, made in the ordinary course of business and consistent with the past practices of Hexcel, (ii) the purchase from time to time by Hexcel of its common stock (for not more than market price) with the proceeds of the exercise by grantees under any equity-based incentive plan, (iii) other purchases from time to time by Hexcel of its common stock under this clause (b)(iii)not to exceed $40,000,000 in the aggregate since the date hereof; provided that Hexcel may make such purchase of its common stock only if after giving effect to such purchase (including any borrowings made or to be made in connection therewith) (A) the Excess Availability hereunder would be equal to or greater than $25,000,000, and (B) the Borrower has unused Commitments of Fixed Charge Coverage Ratio would not be less than 20% 1.20:1.00 determined on a pro forma basis for the most-recently ended fiscal quarter and the then-current fiscal quarter of the total Commitments then in effect Borrowers during which such purchase was made, (c) the Borrowers and their Subsidiaries may make Restricted Payments with respect to transactions otherwise permitted pursuant to Section 8.13, and (Cd) the ratio of Total Debt so long as of such time (including the effect of any Borrowings or other Debt used to make such Restricted Payment) to EBITDA for the four fiscal quarters ending on the last day of the fiscal quarter immediately preceding the date of determination for which financial statements are available is equal to or less than 3.00 to 1.00, the Borrower may declare and pay cash dividends to the Parent, and the Parent may declare and pay cash dividends to its Equity Interest holders; (iv) if no Default or Event of Default has occurred and is continuing then exists or would exist after giving effect theretoresult from such payment, the repurchase or other acquisition of equity securities, limited partnership Hexcel may make interest or units dividend payments in respect of the Parent not to exceed $2,500,000 Convertible Preferred Stock in the aggregate since the Eighth Amendment Effective Date, from employees, former employees, directors or former directors form of the Parent or its Subsidiaries (i) Convertible Preferred Stock (or permitted transferees of such employees, former employees, directors or former directorsincremental redemption value), pursuant to (ii) cash, or (iii) common stock (in accordance with the terms of the agreements Certificate of Designations with respect to the Convertible Preferred Stock); PROVIDED that Hexcel may make such cash interest or dividend payments pursuant to this clause (d)(ii) of this Section 8.4 only (x) after March 19, 2006, and (y) if after giving effect to such cash interest or dividend payment (including employment agreementsany borrowings made or to be made in connection therewith) or plans (or amendments thereto) or other arrangements approved by the board of directors of the Parent under which such equity securities, limited partnership interest or units were granted, issued or sold; and (v) the Borrower may declare and pay dividends or distributions to the Parent in an amount equal to (A) Taxes then due and owing by the Parent Excess Availability hereunder would be equal to or greater than $25,000,000, and (B) reasonable the Fixed Charge Coverage Ratio would not be less than 1.20:1.00 determined on a pro forma basis for the most-recently ended fiscal quarter and customary accounting, public company and other overhead and administrative costs and expenses (exclusive the then-current fiscal quarter of any markup or premium), including reasonable and customary director’s fees and expenses, incurred by the Parent in the ordinary course of businessBorrowers during which such cash interest payment was made.

Restricted Payments. The Neither Parent nor the Borrower and the Parent Guarantors will notwill, and will not permit any of their respective its Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, return any capital to the holders of its stockholders Equity Interests or make any distribution of their its Property to their respective its Equity Interest holders, except that (ia) any Loan Party may make a Restricted Payment to another Loan Party ratably with respect to its Equity Interests; (b) the Parent Borrower and its Subsidiaries may declare and pay dividends or distributions with respect to its their respective Equity Interests payable solely in additional shares of its Equity Interests (other than Disqualified Capital Stock)in the form of common equity; (iic) Subsidiaries any Loan Party may repurchase Equity Interests in the Borrower or any Subsidiary of the Borrower may declare and pay dividends deemed to occur upon exercise of stock options or distributions ratably warrants or the settlement or vesting of other equity-based awards if such Equity Interests represent a portion of the exercise price of, or tax withholding with respect to their Equity Intereststo, such options, warrants or other equity-based awards; (iiid) so long as both before and immediately after giving effect to such Restricted Payment, (A) no Default or Event of Default has occurred and is continuing or would result therefrom, (B) the Borrower has unused Commitments of not less than 20% of the total Commitments then in effect and (C) the ratio of Total Debt as of such time (including the effect of any Borrowings or other Debt used to make such Restricted Payment) to EBITDA for the four fiscal quarters ending on the last day of the fiscal quarter immediately preceding the date of determination for which financial statements are available is equal to or less than 3.00 to 1.00, the Borrower may declare and pay cash dividends to the Parent, and the Parent may declare and pay cash dividends to its Equity Interest holders; (iv) if no Default or Event of Default has occurred and is continuing or would exist after giving pro forma effect thereto, the repurchase Loan Parties may (i) pay (or make Restricted Payments to allow the Borrower or any other direct or indirect parent thereof to pay) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests or settlement of equity-based awards of such Subsidiary (or of the Borrower or any other such direct or indirect parent thereof) held by any future, present or former employee, officer, director, manager, member of management or consultant (or any spouses, former spouses, successors, executors, administrators, heirs, legatees, distributees or permitted transferees of any of the foregoing) of such Subsidiary (or the Borrower or any other direct or indirect parent thereof) or any of its Subsidiaries solely to the extent the Borrower or its Subsidiaries is obligated to make such payment in connection with the termination or death of such individual or (ii) make Restricted Payments in the form of distributions to allow Parent to pay principal or interest on promissory notes that were issued to any future, present or former employee, officer, director, manager, member of management or consultant (or any spouses, former spouses, successors, executors, administrators, heirs, legatees, distributees or permitted transferees of any of the foregoing) of such Subsidiary (or the Borrower or any other direct or indirect parent thereof) or any of its Subsidiaries in lieu of cash payments for the repurchase, retirement or other acquisition or retirement for value of such Equity Interests or equity-based awards held by such Persons, in each case, upon the death, disability, retirement or termination of employment or services, as applicable, of any such Person or pursuant to any employee, officer, director, manager or management equity plan, employee, officer, director, manager or management stock option plan or any other employee, officer, director, manager or management benefit plan or any agreement (including any stock subscription agreement, shareholder agreement or stockholders’ agreement) with any employee, officer, director, manager, member of management or consultant of such Subsidiary (or the Borrower or any other direct or indirect parent thereof) or any of its Subsidiaries solely to the extent the Borrower or its Subsidiaries is obligated to make such payment in connection with the termination or death of such individual; provided that the aggregate amount of Restricted Payments made pursuant to this clause (d) shall not exceed $5,000,000 in any calendar year; (e) any Loan Party may pay cash in lieu of fractional Equity Interests in connection with any dividend, split or combination thereof or any permitted Investment; (f) Parent’s purchase, redemption, retirement, or other acquisition of shares of its Equity Interests with the proceeds received from a substantially concurrent issue of new shares of its Equity Interests; (g) cashless repurchases of Equity Interests deemed to occur upon exercises of options and warrants or the settlement or vesting of other equity securities, limited partnership interest or units awards if such Equity Interests represent a portion of the Parent not to exceed $2,500,000 in the aggregate since the Eighth Amendment Effective Date, from employees, former employees, directors or former directors of the Parent or its Subsidiaries (or permitted transferees exercise price of such employees, former employees, directors options or former directors), pursuant to the terms of the agreements (including employment agreements) warrants or plans (or amendments thereto) or other arrangements approved by the board of directors of the Parent under which such similar equity securities, limited partnership interest or units were granted, issued or soldincentive awards; and (vh) the Borrower may declare and pay dividends exchanges, redemptions or distributions to the Parent conversions in an amount equal to (A) Taxes then due and owing by the Parent and (B) reasonable and customary accounting, public company and other overhead and administrative costs and expenses (exclusive whole or in part any of any markup its Equity Interests for or premium), including reasonable and customary director’s fees and expenses, incurred by the Parent in the ordinary course into another class of businessits Equity Interests.

Restricted Payments. The Borrower and the Parent Guarantors will not, and will not permit any of their respective Subsidiaries to, Pay or declare or make, or agree enter into any agreement to pay or make, directly or indirectly, otherwise become obligated to make any Restricted Payment, return any capital to its stockholders or make any distribution of their Property to their respective Equity Interest holders, except other than (i) the Parent may declare and pay dividends or distributions with respect to its Equity Interests payable solely in additional shares of its Equity Interests (other than Disqualified Capital Stock); common stock of LGEC, (ii) Subsidiaries conversion of the Borrower may declare and pay dividends or distributions ratably with respect to their Equity Interests; Permitted Preferred Stock into common stock of LGEC, (iii) so long as both before dividends on Permitted Preferred Stock which are paid solely in additional shares of Permitted Preferred Stock, (iv) cash dividends in respect of shares of Permitted Preferred Stock provided that at the time of such payment and immediately after giving effect to such Restricted Payment, (A) thereto no Default or Event of Default has shall have occurred and is continuing or would result therefrombe continuing, (Bv) required payments but not prepayments of interest and principal on LGEC's 6% convertible notes due July 31, 2003 which are outstanding on the Borrower has unused Commitments of not less than 20% date hereof, (vi) payments (x) for the repurchase, redemption, acquisition, cancellation or other retirement for value of the total Commitments then Equity Interests of LGEC held by former managers and employees of a Credit Party or its Subsidiaries (or their estates or beneficiaries under their estates) upon the death, disability, retirement or termination of employment of any such former managers or former employees, (y) to terminate options to purchase stock of LGEC owned by former managers and employees of a Credit Party or its Subsidiaries (or their estate or beneficiaries under their estates) upon the death, disability, retirement or termination of employment of any such former manager or former employee of such Credit Party or its Subsidiaries or (z) on promissory notes or other obligations representing the unpaid repurchase, redemption, acquisition or cancellation price for Equity Interests of LGEC owned by such former managers and employees of such Credit Party and its Subsidiaries, in effect an amount not to exceed US$1,000,000 in the aggregate for (x),(y) and (C) the ratio of Total Debt as of such time (including the effect of any Borrowings or other Debt used to make such Restricted Payment) to EBITDA for the four fiscal quarters ending on the last day of the fiscal quarter immediately preceding the date of determination for which financial statements are available is equal to or less than 3.00 to 1.00z), the Borrower may declare and pay cash dividends to the Parentbut, and the Parent may declare and pay cash dividends to its Equity Interest holders; (iv) in each case, only if no Default or Event of Default has occurred and is continuing in existence or would exist after giving effect theretobe caused thereby; (vii) payments to a Credit Party by another Credit Party which is not a Borrower, the repurchase or other acquisition of equity securities, limited partnership interest or units of the Parent not to exceed $2,500,000 in the aggregate since the Eighth Amendment Effective Date, from employees, former employees, directors or former directors of the Parent or its Subsidiaries and (or permitted transferees of such employees, former employees, directors or former directors), pursuant viii) payments to the terms of the agreements (including employment agreements) or plans (or amendments thereto) or Borrowers from any other arrangements approved by the board of directors of the Parent under which such equity securities, limited partnership interest or units were granted, issued or sold; and (v) the Borrower may declare and pay dividends or distributions to the Parent in an amount equal to (A) Taxes then due and owing by the Parent and (B) reasonable and customary accounting, public company and other overhead and administrative costs and expenses (exclusive of any markup or premium), including reasonable and customary director’s fees and expenses, incurred by the Parent in the ordinary course of businessCredit Party.

Restricted Payments. The Borrower and the Parent Guarantors will not, and will not permit any of their respective Subsidiaries to, declare or make, or agree to pay Declare or make, directly or indirectly, any Restricted Payment, return or incur any capital obligation (contingent or otherwise) to its stockholders or make any distribution of their Property to their respective Equity Interest holdersdo so; provided, except that, (i) the Parent Borrower and each Subsidiary may declare or make, directly or indirectly, any Restricted Payment required to qualify and pay dividends or distributions with respect to its Equity Interests payable solely in additional shares maintain the Borrower’s qualification as a real estate investment trust under Sections 856 through 860 of its Equity Interests (other than Disqualified Capital Stock); the Code, (ii) Subsidiaries of so long as no Default under Section 8.01(a), (f) or (g) shall have occurred and be continuing or would result therefrom, the Borrower and each Subsidiary may declare and pay dividends or distributions ratably with respect make, directly or indirectly, any Restricted Payment required to their Equity Interests; avoid the payment of federal or state income or excise tax, (iii) so long as both before and immediately after giving effect to such Restricted Payment, (A) no Default or Event of Default has shall have occurred and is be continuing or would result therefrom, (B) the Borrower has unused Commitments and each Subsidiary may purchase, redeem, retire, acquire, cancel or terminate Equity Interests issued by the Borrower so long as immediately after giving effect thereto the Borrower is in compliance on a Pro Forma Basis with the requirements of not less than 20% of the total Commitments then in effect Section 7.10(e), (iv) so long as no Default shall have occurred and (C) the ratio of Total Debt as of such time (including the effect of any Borrowings be continuing or other Debt used to make such Restricted Payment) to EBITDA for the four fiscal quarters ending on the last day of the fiscal quarter immediately preceding the date of determination for which financial statements are available is equal to or less than 3.00 to 1.00would result therefrom, the Borrower and each Subsidiary may declare and pay cash dividends make any payment on account of any return of capital to the ParentBorrower’s stockholders, and the Parent may declare and pay cash dividends to its Equity Interest holders; (iv) if no Default partners or Event of Default has occurred and is continuing or would exist after giving effect thereto, the repurchase or other acquisition of equity securities, limited partnership interest or units of the Parent not to exceed $2,500,000 in the aggregate since the Eighth Amendment Effective Date, from employees, former employees, directors or former directors of the Parent or its Subsidiaries members (or permitted transferees of such employees, former employees, directors or former directorsthe equivalent Person thereof), pursuant to the terms of the agreements (including employment agreements) or plans (or amendments thereto) or other arrangements approved by the board of directors of the Parent under which such equity securities, limited partnership interest or units were granted, issued or sold; and (v) the Borrower and each Subsidiary may declare and pay dividends make dividend payments or other distributions payable solely in the common stock or other common Equity Interests in such Person, (vi) any Subsidiary may at any time make Restricted Payments to the Parent in an amount equal to (A) Taxes then due and owing by the Parent Borrower or any other Subsidiary, and (Bvii) reasonable the Borrower and customary accountingeach Subsidiary may declare or make, public company and other overhead and administrative costs and expenses directly or indirectly, any Restricted Payment within sixty (exclusive 60) days after the date of any markup or premiumdeclaration thereof, if on the date of declaration of such payment, such payment would have been permitted pursuant to another clause of this Section 7.06 and, on the date of such payment, no Default under Section 8.01(a), including reasonable (f) or (g) shall have occurred and customary director’s fees and expenses, incurred by the Parent in the ordinary course of businessbe continuing.

Restricted Payments. The Borrower and Each of the Parent Guarantors Credit Parties will not, and nor will not it permit any of their respective its Restricted Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, declare, order, make or set apart any sum for or pay any Restricted Payment, return except (a) to make dividends payable solely in the same class of Equity Interests of such Person, (b) to make dividends or other distributions payable to any capital Credit Party (directly or indirectly through Subsidiaries), (c) subject to the subordination terms thereof, to make regularly scheduled interest payments under the Senior Subordinated Notes and other Subordinated Indebtedness; (d) the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Borrower or any Restricted Subsidiary of the Borrower held by any current or former officer, director or employee of the Borrower or any of its stockholders Restricted Subsidiaries pursuant to any equity subscription agreement, stock option agreement, shareholders’ agreement or make any distribution of their Property to their respective Equity Interest holders, except similar agreement; provided that (i) the Parent may declare and pay dividends aggregate price paid for all such repurchased, redeemed, acquired or distributions with respect to its retired Equity Interests payable solely may not exceed $10,000,000 in additional shares any twelve (12)-month period plus the portion of its such amount available but unused from prior twelve (12)-month periods and (ii) such amount in any calendar year may be increased by an amount not to exceed (A) the net cash proceeds received by the Borrower from the sale of Equity Interests (other than Disqualified Capital Stock) of the Borrower to members of management or directors of the Borrower and its Restricted Subsidiaries that occurs after the First Amendment Effective Date (to the extent such cash proceeds from the sale of such Equity Interests have not otherwise been applied to the payment of Restricted Payments); , plus (B) the net cash proceeds of key man life insurance policies received by the Borrower and its Restricted Subsidiaries after the First Amendment Effective Date, less (C) the amount of any Restricted Payments made pursuant to clauses (ii)(A) and (ii)(B) of this clause (d), (e) the repurchase of Equity Interests deemed to occur (i) upon the exercise of stock options, warrants or other convertible securities to the extent such Equity Interests represent a portion of the exercise price thereof or (ii) Subsidiaries upon the transfer of shares of restricted stock to the Borrower may declare and pay dividends in connection with the payment of withholding tax by the Borrower or distributions ratably with respect to their Equity Interests; a Restricted Subsidiary following a sale of shares of restricted stock by the holder thereof, (iiif) so long as both before and immediately after giving effect to such Restricted Payment, (A) no Default or Event of Default has occurred and is continuing or would result therefrom, (Bi) the Borrower has unused Commitments of not less than 20% of the total Commitments then in effect and (C) the ratio of Total Debt as of such time (including the effect of any Borrowings or other Debt used to make such Restricted Payment) to EBITDA for the four fiscal quarters ending on the last day dividends, repurchase shares of the fiscal quarter immediately preceding the date of determination for which financial statements are available is equal to or less than 3.00 to 1.00, the Borrower may declare and pay cash dividends to the Parent, and the Parent may declare and pay cash dividends to its Equity Interest holders; (iv) if no Default or Event of Default has occurred Interests and is continuing or would exist after giving effect thereto, the repurchase or make other acquisition of equity securities, limited partnership interest or units of the Parent Restricted Payments in an aggregate amount not to exceed $2,500,000 125,000,000 for the period from the First Amendment Effective Date through the Maturity Date and (ii) if the Consolidated Leverage Ratio would be less than or equal to 2.75 to 1.0 as of the last fiscal quarter end after giving effect thereto on a Pro Forma Basis, to make unlimited dividends, share repurchases and other Restricted Payments (it being understood and agreed that Restricted Payments made pursuant to this clause (ii) shall not be included in the aggregate since the Eighth Amendment Effective Date, from employees, former employees, directors or former directors calculation of the Parent or its Subsidiaries (or permitted transferees of such employees, former employees, directors or former directors), amount available for Restricted Payments pursuant to the terms of the agreements foregoing clause (including employment agreements) or plans (or amendments thereto) or other arrangements approved by the board of directors of the Parent under which such equity securities, limited partnership interest or units were granted, issued or sold; and (v) the Borrower may declare and pay dividends or distributions to the Parent in an amount equal to (A) Taxes then due and owing by the Parent and (B) reasonable and customary accounting, public company and other overhead and administrative costs and expenses (exclusive of any markup or premiumi), including reasonable and customary director’s fees and expenses, incurred by the Parent in the ordinary course of business).

Restricted Payments. The Borrower and the Parent Guarantors will not, and will not permit any of their respective Subsidiaries to, declare Declare or make, or agree to pay or make, directly or indirectly, make any Restricted Payment, return except the following: (a) Each Subsidiary that is not a Credit Party may make Restricted Payments to a Credit Party, and each Credit Party may make Restricted Payments to another Credit Party (subject, in the case of Restricted Payments received by Immaterial Restricted Subsidiaries, to the limitation set forth at the end of this Section 9.3); (b) Borrowers and each Subsidiary may declare and make dividend payments or other distributions payable solely in the common stock or other Equity Interests of such Person; (c) any capital to its stockholders Credit Party (including any Borrower) may pay dividends or make distributions on Equity Interests that accrue (but are not paid in cash) or are paid in-kind with Equity Interests of such Credit Party equal or junior ranking; (d) any distribution Borrower may purchase, redeem or otherwise acquire Equity Interests issued by it with the proceeds received from the substantially concurrent issuance of new shares of common stock or other Equity Interests that are not Disqualified Equity Interests of such Borrower; (e) Borrowers or any of their Property to their respective Equity Interest holders, except Subsidiaries may purchase (i) the Parent may declare and pay dividends Equity Interests issued by any Credit Party or distributions options with respect thereto held by directors, officers or employees of Borrowers or any Subsidiary (or their estates or authorized representatives) in connection with (A) the death, disability or termination of employment of any such director, officer or employee or (B) any benefit, incentive or equity compensation plans to its provide funds for the payment of any Tax or other amounts owing by such directors, officers or employees upon vesting or exercise or settlement of the Equity Interests payable solely in additional shares of its Equity Interests (other than Disqualified Capital Stock)or options provided under such plans; and (ii) Subsidiaries of the Borrower may declare and pay dividends Equity Interests issued by any Credit Party for future issuance under any benefit, incentive or distributions ratably with respect to their Equity Interestsequity compensation plan; provided, that (iii) so long as both before and immediately after giving effect to such Restricted Payment, (Ax) no Default or Event of Default has occurred and is continuing at the time of such purchase and (y) for both sub-clauses (i) and (ii), the aggregate cash consideration paid therefor in any twelve-month period after the Closing Date shall not exceed $50,000,000 in the aggregate; (f) cash payments in lieu of fractional shares upon exercise of options or would result therefromwarrants or conversion or exchange of convertible securities, (B) repurchases of Equity Interests deemed to occur upon the Borrower has unused Commitments exercise of not less than 20% options, warrants or other convertible securities to the extent such securities represent a portion of the total Commitments then in effect and (C) the ratio of Total Debt as exercise price of such time (including the effect of any Borrowings options, warrants or other Debt used to make such Restricted Payment) to EBITDA for the four fiscal quarters ending on the last day of the fiscal quarter immediately preceding the date of determination for which financial statements are available is equal to or less than 3.00 to 1.00, the Borrower may declare and pay cash dividends to the Parent, and the Parent may declare and pay cash dividends to its Equity Interest holders; (iv) if no Default or Event of Default has occurred and is continuing or would exist after giving effect thereto, the repurchase or other acquisition of equity convertible securities, limited partnership interest or units of the Parent not to exceed $2,500,000 in the aggregate since the Eighth Amendment Effective Date, from employees, former employees, directors or former directors of the Parent or its Subsidiaries (or permitted transferees of such employees, former employees, directors or former directors), pursuant to the terms of the agreements (including employment agreements) or plans (or amendments thereto) or other arrangements approved by the board of directors of the Parent under which such equity securities, limited partnership interest or units were granted, issued or sold; and (v) the Borrower may declare and pay dividends or distributions to the Parent in an amount equal to (A) Taxes then due and owing by the Parent and (B) reasonable and customary accounting, public company and other overhead and administrative costs and expenses (exclusive of any markup or premium), including reasonable and customary director’s fees and expenses, incurred by the Parent in the ordinary course of business.

Restricted Payments. The Borrower and Each of the Parent Guarantors Credit Parties will not, and nor will not it permit any of their respective Subsidiaries Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, declare, order, make or set apart any sum for or pay any Restricted Payment, return any capital to its stockholders or make any distribution of their Property to their respective Equity Interest holders, except (ia) the Parent may declare and pay to make dividends or distributions with respect to its Equity Interests payable solely in additional shares the same class of its Equity Interests Capital Stock of such Person, (other than Disqualified Capital Stock); (iib) Subsidiaries of the Borrower may declare and pay to make dividends or other distributions ratably with respect payable to their Equity Interests; any Credit Party, (iiic) so long as no Default or Event of Default shall have occurred and be continuing both before and immediately after giving effect thereto, the Borrower may pay the Sponsor a management fee in an amount not to exceed $2,400,000 per annum; PROVIDED that any portion of such Restricted Paymentmanagement fee not paid due to the existence of a Default or Event of Default may accrue and be paid at such time as no Default or Event of Default exists or would be caused by the payment thereof, (d) so long as no Default or Event of Default shall have occurred and be continuing both before and after giving effect thereto, the Parent and the Borrower may make payments (whether in cash or through the 95 issuance of promissory notes pursuant to Section 6.1) (i) with respect to stock option plans and stock appreciation rights programs of the Parent and the Borrower and repurchase options in an aggregate amount not to exceed $1,500,000 during any twelve-month period and (ii) with respect to the repurchase of Capital Stock of the Parent upon the termination of employment, death, permanent disability or retirement of its employees or management; PROVIDED, that the aggregate amount of cash expended by the Parent and the Borrower pursuant to this clause (d) shall not exceed (A) prior to a Qualifying IPO, $5,000,000 during any twelve-month period and $10,000,000 in the aggregate during the term of this Agreement and (B) after a Qualifying IPO, $1,500,000 during any twelve-month period and $10,000,000 in the aggregate during the term of this Agreement, (e) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, (B) the Borrower has unused Commitments of not less than 20% of the total Commitments then in effect and (C) the ratio of Total Debt as of such time (including the effect of any Borrowings or other Debt used to make such Restricted Paymentpayments of principal and interest with respect to any seller note permitted under Section 6.1(h), (f) to EBITDA for the four fiscal quarters ending on the last day of the fiscal quarter immediately preceding the date of determination for which financial statements are available is equal to or less than 3.00 to 1.00, the Borrower may declare and pay cash dividends to the Parent, and the Parent may declare and pay cash dividends to its Equity Interest holders; (iv) if so long as no Default or Event of Default shall have occurred and be continuing pursuant to Section 7.1(a) or 7.1(e) and subject to the provisions of Article 11 of the Senior Subordinated Indenture, to make regularly scheduled payments of interest and principal (at the stated maturity thereof) on the Senior Subordinated Notes, (g) so long as no Event of Default has occurred and is continuing or would exist result therefrom and so long as at least $5,000,000 of availability shall remain under the Aggregate Revolving Committed Amount both before and after giving effect theretoto each such payment, the repurchase Credit Parties may make payments with respect to earnout obligations in connection with a Permitted Acquisition, (h) the Equity Investment and related transactions occurring on the Closing Date, (i) so long as no Event of Default pursuant to Section 7.1(a) shall have occurred and be continuing or would result therefrom, the payment in cash of retention incentive payments and non-compete fees to certain officers of the Credit Parties in accordance with clause (j) of Section 6.6 and (j) in connection with the termination of the Parent's ESOP and other acquisition European employee stock benefit plans, the issuance of equity securities, limited partnership interest or units Capital Stock of the Parent not to exceed $2,500,000 in and/or the aggregate since the Eighth Amendment Effective Date, from employees, former employees, directors or former directors payment of the Parent or its Subsidiaries (or permitted transferees of such employees, former employees, directors or former directors), pursuant cash to the terms participants thereof in accordance with clause (k) of the agreements (including employment agreements) or plans (or amendments thereto) or other arrangements approved by the board of directors of the Parent under which such equity securities, limited partnership interest or units were granted, issued or sold; and (v) the Borrower may declare and pay dividends or distributions to the Parent in an amount equal to (A) Taxes then due and owing by the Parent and (B) reasonable and customary accounting, public company and other overhead and administrative costs and expenses (exclusive of any markup or premium), including reasonable and customary director’s fees and expenses, incurred by the Parent in the ordinary course of businessSection 6.6.

Restricted Payments. The Borrower and the Parent Guarantors will not, and will shall not permit any of their respective Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, make any Restricted Payment, return any capital to its stockholders or make any distribution except (in each case of their Property to their respective Equity Interest holdersthe following, except for clauses (ia), (b), (d), and (g), solely to the extent of funds available in accordance with Section 2.16(i)(x)(A), Section 2.16(j)(i) and Section 2.16(m)): (a) the Parent may declare and pay dividends or distributions with respect Borrower may, if permitted pursuant to its Equity Interests payable solely in additional shares Section 2.13(e)(i), make a Restricted Payment on the date of its Equity Interests (other than Disqualified Capital Stock)the funding of the applicable Incremental Term Loans; (iib) Subsidiaries of the Borrower may declare and pay dividends or make distributions ratably with respect for purposes of reimbursing Drawstop Equity Contributions following any Drawstop Period, to their the extent of Drawstop Equity Interests; (iii) so long as both before and immediately after giving effect to Contributions made during such Restricted PaymentDrawstop Period, (A) no Default or Event of Default has occurred and is continuing or would result therefrom, (B) the Borrower has unused Commitments of not less than 20% of the total Commitments then in effect and (C) the ratio of Total Debt as of such time (including the effect from proceeds of any Borrowings or other Debt used Term Loans made after such Drawstop Period, provided that to make the extent any Drawstop Equity Contributions have been designated as Equity Commitment L/C Reducing Contributions and the Equity Commitment L/Cs have been reduced to account for such Restricted Payment) Equity Commitment L/C Reducing Contributions pursuant to EBITDA for the four fiscal quarters ending on the last day of the fiscal quarter immediately preceding the date of determination for which financial statements are available is equal to or less than 3.00 to 1.00Section 2.16(d)(ii), the Borrower may declare shall only be entitled to make a distribution pursuant to this Section 7.07(b) to reimburse such Drawstop Equity Contribution if the Sponsors amend and pay cash dividends increase an existing Equity Commitment L/C or provide an additional Equity Commitment L/C, in each case with a face value in an amount such that the aggregate face value of all Equity Commitment L/Cs is at least equal to the Parent, and the Parent may declare and pay cash dividends to its unfunded Minimum Equity Interest holdersContribution Amount; (iv) if no Default or Event of Default has occurred and is continuing or would exist after giving effect thereto, the repurchase or other acquisition of equity securities, limited partnership interest or units of the Parent not to exceed $2,500,000 in the aggregate since the Eighth Amendment Effective Date, from employees, former employees, directors or former directors of the Parent or its Subsidiaries (or permitted transferees of such employees, former employees, directors or former directors), pursuant to the terms of the agreements (including employment agreements) or plans (or amendments thereto) or other arrangements approved by the board of directors of the Parent under which such equity securities, limited partnership interest or units were granted, issued or sold; and (vc) the Borrower may declare and pay dividends make Restricted Payments solely to Pledgor payable solely in the Equity Interests of Borrower; provided that any such Equity Interest shall be become Pledged Equity and that the Borrower shall promptly (and in no event no later than ten (10) days from such Restricted Payment, or distributions confirmation in lieu thereof that 90 KE 73718588.20 US-DOCS\142539518.2141222994.8 such certificates, powers and instruments have been sent for overnight delivery to the Parent Collateral Agent) deliver to the Collateral Agent certificates, to the extent any such Equity Interest is certificated, representing Equity Interest accompanied by undated stock or membership interest powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank, in the form delivered on the Closing Date or otherwise reasonably satisfactory to the Administrative Agent; (d) Restricted Payments that are made in an amount equal to the amount of Excluded Proceeds previously received and the Borrower elects to apply under this clause (d); (e) to the extent constituting Restricted Payments, the Borrower and its Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.03 (other than clause (c) of the definition of “Permitted Investments”, Section 7.03 or Section 7.08 (other than Section 7.08(d)); (f) the Borrower may make Restricted Payments to any direct or indirect parent of the Borrower, with respect to each taxable year ending after the Closing Date for which the Borrower is treated as a partnership or disregarded entity for U.S. federal income tax purposes, the payment of distributions to the Borrower’s equity owners in an aggregate amount equal to the product of (A) Taxes then due the net taxable income of the Borrower (other than the taxable income of the Borrower directly or indirectly allocable to SMLP) for such taxable year, reduced by any cumulative and owing taxable loss of the Borrower with respect to all prior taxable years ending after the Closing Date to the extent such cumulative net taxable loss would have been deductible by the Parent equity owners against such taxable income if such loss had been incurred in the taxable year in question (assuming that the equity owners have no items of income, gain, loss, deduction or credit other than through the Borrower) and has not previously been taken into account in determining Permitted Tax Distributions and (B) reasonable the assumed tax rate, which reflects the effective U.S. federal, state and customary accountinglocal income tax rates actually applicable to direct or indirect equity owners of Borrower, other than public company and other overhead and administrative costs and expenses (exclusive of any markup or premium), including reasonable and customary director’s fees and expenses, incurred by the Parent shareholders indirectly owning equity in the ordinary Borrower through SMLP for such taxable year (taking into account the tax status of such equity owners, any foreign tax credits or other available credits and the character of the taxable income in question (long-term capital gain, qualified dividend income, etc. and the deductibility of state and local income taxes for U.S. federal income tax purposes (and any applicable limitation thereon)); provided that any distributions under this clause (f) with respect to any such taxable year may be made in installments during the course of business.the taxable year using reasonable estimates of the anticipated aggregate amount of distributions for such taxable year, with (x) any excess of aggregate installments with respect to any such taxable year over the actual amount of distributions permitted for such taxable year reducing any distributions under this clause (f) with respect to the immediately subsequent taxable year (and, to the extent such excess is not fully absorbed in the immediately subsequent taxable year, the following year(s)) and (y) any excess of the actual amounts of distributions permitted for such taxable year over the aggregate installments with respect to any such taxable year increasing any distributions under this clause (f) with respect to the immediately subsequent taxable year) (any such 91 KE 73718588.20 US-DOCS\142539518.2141222994.8

Restricted Payments. The Borrower and the Parent Guarantors will not, and nor will not it permit any of their respective Subsidiaries Restricted Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, return any capital to except: (a) Borrower and its stockholders or make any distribution of their Property to their respective Equity Interest holders, except (i) the Parent Restricted Subsidiaries may declare and pay dividends or distributions with respect to its Equity Interests capital stock payable solely in additional shares of its Equity Interests (other than Disqualified Capital Stock)stock of the same class; (iib) Restricted Subsidiaries of the Borrower may declare and pay dividends or distributions ratably with respect to their Equity Interestscapital stock; (iiic) so long as both before to the extent constituting Restricted Payments, the Borrower and immediately after giving effect its Restricted Subsidiaries may enter into transactions expressly permitted by Sections 6.03, 6.05 or 6.09; (d) repurchases by Borrower of partial interests in its common stock for nominal amounts which are required to such Restricted Payment, be repurchased in connection with the exercise of stock options or warrants to permit the issuance of only whole shares of common stock; (A) no Default or Event of Default has occurred and is continuing or would result therefrom, (Be) the Borrower has unused Commitments of not less than 20% of the total Commitments then in effect and (C) the ratio of Total Debt as of such time (including the effect of any Borrowings or other Debt used to make such Restricted Payment) to EBITDA may pay for the four fiscal quarters ending on the last day of the fiscal quarter immediately preceding the date of determination for which financial statements are available is equal to or less than 3.00 to 1.00repurchase, the Borrower may declare and pay cash dividends to the Parent, and the Parent may declare and pay cash dividends to its Equity Interest holders; (iv) if no Default or Event of Default has occurred and is continuing or would exist after giving effect thereto, the repurchase retirement or other acquisition or retirement for value of equity securities, limited partnership interest or units Equity Interests of the Parent not to exceed $2,500,000 in the aggregate since the Eighth Amendment Effective DateBorrower held by any future, from employees, former employees, directors present or former directors director, officer, member of management, employee or consultant of the Parent Borrower or any of its Subsidiaries (or permitted transferees the estate, heirs, family members, spouse or former spouse of any of the foregoing); provided that (i) at the time of any such repurchase, retirement or other acquisition no Default exists or would result, (ii) the aggregate amount of Restricted Payments made under this clause (e) in any fiscal year does not exceed the sum of: (i) $1,000,000 (the "Yearly Limit"); plus (ii) the portion of the Yearly Limit from each of the immediately preceding two fiscal years (not including any fiscal year ending prior to the Effective Date) which was not expended by Borrower for Restricted Payments in such fiscal years (the "Carryover Amount" and in calculating the Carryover Amount for any fiscal year, the Yearly Limit applicable to the previous fiscal years shall be deemed to have been utilized first by any Restricted Payments made under this clause (e) in such fiscal year) plus (iii) an amount equal to the cash proceeds from the sale of Equity Interests to directors, officers, members of management, employees or consultants of the Borrower or of its Subsidiaries (or the estate, heirs, family members, spouse or former spouse of any of the foregoing) in such fiscal year; (f) the repurchase of Equity Interests of the Borrower that occurs upon the cashless exercise of stock options or warrants as a result of the Borrower accepting such options or warrants as satisfaction of the exercise price of such employees, former employees, directors or former directors), pursuant to the terms of the agreements (including employment agreements) or plans (or amendments thereto) or other arrangements approved by the board of directors of the Parent under which such equity securities, limited partnership interest or units were granted, issued or soldEquity Interests; and (vg) the Borrower may declare make additional Restricted Payments if no Default exists or would result therefrom and pay dividends or distributions to the Parent in an amount equal to (A) Taxes then due and owing by the Parent and (B) reasonable and customary accounting, public company and other overhead and administrative costs and expenses (exclusive of any markup or premium), including reasonable and customary director’s fees and expenses, incurred by the Parent in the ordinary course of business.either:

Restricted Payments. The Borrower and Declare or pay any dividend (other than dividends payable solely in common stock of the Parent Guarantors will not, and will not permit any of their respective Subsidiaries to, declare or makePerson making such dividend) on, or agree to pay make any payment on account of, or makeset apart assets for a sinking or other analogous fund for, the purchase, redemption, defeasance, retirement or other acquisition of, any Capital Stock of the Borrower or any Subsidiary, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of the Borrower or any Subsidiary (collectively, "Restricted PaymentPayments"); provided, return any capital to its stockholders or make any distribution of their Property to their respective Equity Interest holders, except that (i) any Subsidiary may make Restricted Payments to the Parent Borrower or any Wholly Owned Subsidiary Guarantor, (ii) the Borrower may declare and pay dividends or distributions with respect to its Equity Interests payable solely in additional repurchase shares of its Equity Interests (other than Disqualified Capital Stock); (ii) Subsidiaries of the Borrower may declare common stock or rights, options or units in respect thereof, from its officers and pay dividends or distributions ratably with respect directors for an aggregate purchase price not to their Equity Interests; exceed $1,000,000 in any fiscal year, (iii) so long as both before and immediately after giving effect to such Restricted Payment, (A) no Default or Event of Default has occurred and is continuing or would result therefromcontinuing, the Borrower may, at any time after January 1, 1999, otherwise repurchase shares of its common stock so long as (A) there are no Revolving Extensions of Credit outstanding at the time of such repurchase (other than outstanding L/C Obligations which have not become Reimbursement Obligations) and (B) after giving effect to such repurchase, Consolidated Net Worth at such time shall be an amount at least equal to the Borrower sum of (x) $52,000,000, (y) the aggregate amount of any Preferred Stock permitted to be issued pursuant to Section 7.2(h) which has unused Commitments been issued prior to the date of not less than 20such repurchase and (z) 25% of the total Commitments then in effect and (C) the ratio of Total Debt as of such time (including the effect cumulative amount of any Borrowings or other Debt used to make such Restricted Payment) to EBITDA for Consolidated Net Income since the four fiscal quarters ending Closing Date reflected on the last day financial statements of the fiscal quarter immediately preceding Borrower which have been delivered pursuant to Section 6.1(a) on or prior to the date of determination for which financial statements are available is equal to or less than 3.00 to 1.00, the Borrower may declare such repurchase and pay cash dividends to the Parent, and the Parent may declare and pay cash dividends to its Equity Interest holders; (iv) if so long as no Default or Event of Default has occurred and is continuing or would exist after giving effect theretocontinuing, the repurchase or other acquisition of equity securities, limited partnership interest or units of the Parent not to exceed $2,500,000 in the aggregate since the Eighth Amendment Effective Date, from employees, former employees, directors or former directors of the Parent or its Subsidiaries (or permitted transferees of such employees, former employees, directors or former directors), pursuant to the terms of the agreements (including employment agreements) or plans (or amendments thereto) or other arrangements approved by the board of directors of the Parent under which such equity securities, limited partnership interest or units were granted, issued or sold; and (v) the Borrower may declare make Restricted Payments up to $2,000,000 in any fiscal year with respect to Preferred Stock which has been issued in accordance with Section 7.2(h). 7 Capital Expenditures. Make or commit to make (by way of the acquisition of securities of a Person or otherwise) any Capital Expenditure, except Capital Expenditures of the Borrower and pay dividends or distributions to the Parent in an amount equal to (A) Taxes then due and owing by the Parent and (B) reasonable and customary accounting, public company and other overhead and administrative costs and expenses (exclusive of any markup or premium), including reasonable and customary director’s fees and expenses, incurred by the Parent its Subsidiaries in the ordinary course of businessbusiness not exceeding $15,000,000 in any fiscal year; provided, that (i) up to $5,000,000 of any such amount referred to above, if not so expended in the fiscal year for which it is permitted, may be carried over for expenditure in the next succeeding fiscal year and (ii) Capital Expenditures made pursuant to this clause (a) during any fiscal year shall be deemed made, first, in respect of amounts carried over from the prior fiscal year pursuant to subclause (i) above and, second, in respect of amounts permitted for such fiscal year as provided above.

Restricted Payments. The Borrower and the Parent Guarantors Guarantor shall not declare or make any Restricted Payment unless, after giving effect thereto, no Default or Event of Default shall exist. Investments NY:791404.13 . The Guarantor will not, and will not permit any of their respective its Subsidiaries to, declare make or make, or agree to pay or make, directly or indirectly, maintain any Restricted Payment, return any capital to its stockholders or make any distribution of their Property to their respective Equity Interest holders, Investments except (ia) Investments in the Parent may declare Guarantor or any Subsidiary, including without limitation, advances or loans between or among the Guarantor or any Subsidiary and pay dividends or distributions with respect loans and advances to its Equity Interests payable solely in additional shares of its Equity Interests (other than Disqualified Capital Stock); (ii) Subsidiaries officers and employees of the Borrower may declare and pay dividends Guarantor or distributions ratably with respect to their Equity Interests; (iii) so long as both before and immediately after giving effect to such Restricted Payment, (A) no Default or Event of Default has occurred and is continuing or would result therefrom, (B) the Borrower has unused Commitments of not less than 20% of the total Commitments then in effect and (C) the ratio of Total Debt as of such time (including the effect of any Borrowings or other Debt used to make such Restricted Payment) to EBITDA for the four fiscal quarters ending on the last day of the fiscal quarter immediately preceding the date of determination for which financial statements are available is equal to or less than 3.00 to 1.00, the Borrower may declare and pay cash dividends to the Parent, and the Parent may declare and pay cash dividends to its Equity Interest holders; (iv) if no Default or Event of Default has occurred and is continuing or would exist after giving effect thereto, the repurchase or other acquisition of equity securities, limited partnership interest or units of the Parent not to exceed $2,500,000 in the aggregate since the Eighth Amendment Effective Date, from employees, former employees, directors or former directors of the Parent or its Subsidiaries (or permitted transferees of such employees, former employees, directors or former directors), pursuant to the terms of the agreements (including employment agreements) or plans (or amendments thereto) or other arrangements approved by the board of directors of the Parent under which such equity securities, limited partnership interest or units were granted, issued or sold; and (v) the Borrower may declare and pay dividends or distributions to the Parent in an amount equal to (A) Taxes then due and owing by the Parent and (B) reasonable and customary accounting, public company and other overhead and administrative costs and expenses (exclusive of any markup or premium), including reasonable and customary director’s fees and expenses, incurred by the Parent Subsidiary in the ordinary course of business; (b) Investments in Persons (whether or not such Person is, or after giving effect to any such Investment becomes, a Subsidiary); provided that the Guarantor will be in compliance with Section 5.07 after giving effect to such Investment; (c) Investments in Persons in connection with Permitted Acquisitions; and (d) Investments in Approved Investments; provided, however, during the existence of an Event of Default, neither the Guarantor nor any of its Subsidiaries may make any new Investments without the prior written consent of the Required Banks. Negative Pledge . Neither the Guarantor nor any of its Subsidiaries will create, assume or suffer to exist any Lien on any asset now owned or hereafter acquired by it, except: Liens existing on the date of this Agreement securing Debt outstanding on the date of this Agreement in an aggregate principal amount not exceeding $5,000,000; Liens existing on the date of this Agreement and described on Schedule 5.06; any Lien existing on (i) any asset of any Person at the time such Person becomes a Consolidated Subsidiary or is merged or consolidated with or into the Guarantor or a Consolidated Subsidiary (including in connection with the Unilin Acquisition) and (ii) any asset prior to the acquisition thereof by the Guarantor or a Consolidated Subsidiary, in each case, not created in contemplation of such event; any Lien on any asset securing Debt incurred or assumed for the purpose of financing all or any part of the cost of acquiring or constructing such asset, provided that such Lien attaches to such asset concurrently with or within 18 months after the acquisition or completion of construction thereof; Liens securing Debt owing by any Subsidiary to the Guarantor; any Lien arising out of the refinancing, extension, renewal or refunding of any Debt secured by any Lien permitted by any of the foregoing paragraphs of this Section, provided that (i) such Debt is not secured by any additional assets, and (ii) the amount of such Debt secured by any such Lien is not increased; Liens incidental to the conduct of its business or the ownership of its assets which (i) do not secure Debt and (ii) do not, in the aggregate, materially detract from the value of its assets or materially impair the use thereof in the operation of its business; any Lien on Margin Stock; Liens in connection with an Asset Securitization permitted under Section 5.09; Liens involuntarily imposed and being contested in good faith, subject to the Guarantor or such Subsidiary having established reasonable reserves therefor to the extent required under GAAP; Liens against the assets of Aladdin (formerly owned by Galaxy) under the Catoosa Co. IRB solely to the extent existing as of the date hereof; Liens against the assets of Aladdin (formerly owned by Image Industries, Inc.) under the Summerville City IRB solely to the extent existing as of the date of the acquisition by Aladdin of certain assets of Image Industries, Inc. as contemplated by that certain Asset Purchase Agreement dated as of November 12, 1998, by and among Aladdin, Image Industries, Inc. and The Maxim Group, Inc., as amended and restated on January 29, 1999; and Liens granted to the Administrative Agent for the benefit of the Administrative Agent and the Banks under the Loan Documents; provided that Liens permitted by the foregoing paragraphs (a) through (h) shall at no time secure Debt, when aggregated with outstanding Debt of the Subsidiaries permitted pursuant to Section 5.18(e), in an aggregate amount exceeding 15% of Consolidated Net Worth. NY:791404.13 Maintenance of Existence; Lines of Business . Other than as permitted by Section 5.08 or 5.09, the Guarantor shall, and shall cause each Subsidiary to, maintain its corporate existence. The Guarantor shall, and shall cause each Subsidiary to, carry on its business in Permitted Lines of Business, determined with respect to the Guarantor and its Subsidiaries taken as a whole.

Restricted Payments. The Borrower and the Parent Guarantors (a) Alpharma will not, and will not permit any of their respective its Restricted Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, : declare or pay any Restricted Payment, return any capital to its stockholders dividend or make any other payment or distribution on account of Alpharma's or any of its Restricted Subsidiaries' Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving Alpharma or any of its Restricted Subsidiaries) or to the direct or indirect holders of Alpharma's or any of its Restricted Subsidiaries' Equity Interests in their Property to their respective Equity Interest holders, except capacity as such (i) the Parent may declare and pay other than dividends or distributions with respect to its Equity Interests payable solely in additional shares of its Equity Interests (other than Disqualified Capital Stock) of Alpharma or the Company or to Alpharma or a Restricted Subsidiary); purchase, redeem or otherwise acquire or retire for value (iiincluding, without limitation, in connection with any merger or consolidation involving Alpharma, the Company or any of their Restricted Subsidiaries) Subsidiaries any Equity Interests of the Borrower may declare and pay dividends Company, any direct or distributions ratably indirect parent of the Company or any Subsidiary of the Company (other than any such Capital Stock owned by Alpharma, the Company or a Restricted Subsidiary); make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness that is subordinated to their Equity Intereststhe Notes or the Note Guarantees (other than Indebtedness owed to or held by a Domestic Subsidiary of Alpharma), except a payment of interest or principal at the Stated Maturity thereof; or make any Restricted Investment (iiiall such payments and other actions set forth in clauses (i) so long through (iv) above being collectively referred to as both before "Restricted Payments"), unless, at the time of and immediately after giving effect to such Restricted Payment, (A) ; no Default or Event of Default has shall have occurred and is be continuing or would result therefromoccur as a consequence thereof; Alpharma would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Notes Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 5(i); and such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by Alpharma and its Restricted Subsidiaries after the date hereof (excluding Restricted Payments permitted by Section 5(g)(b)(i), (Bii) the Borrower has unused Commitments of not and (iii)), is less than 20the sum, without duplication, of: 50% of the total Commitments then in effect and (C) the ratio Consolidated Net Income of Total Debt as of such time (including the effect of any Borrowings or other Debt used to make such Restricted Payment) to EBITDA Alpharma for the four fiscal quarters ending on period (taken as one accounting period) from the last day beginning of the first fiscal quarter immediately preceding commencing after the date hereof to the end of determination Alpharma's most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is equal to or a deficit, less than 3.00 to 1.00, 100% of such deficit); plus 100% of the Borrower may declare and pay aggregate net cash dividends to the Parent, proceeds and the Parent may declare and pay cash dividends Fair Market Value (as determined in good faith by the Board of Directors of Alpharma) of property or assets received by Alpharma since the date hereof as a contribution to its common equity capital or from the issue or sale of Equity Interest holders; Interests (ivother than Disqualified Stock) if no Default of Alpharma or Event from the issue or sale of Default has occurred and is continuing convertible or would exist after giving effect thereto, the repurchase exchangeable Disqualified Stock or convertible or exchangeable debt securities of Alpharma that have been converted into or exchanged for such Equity Interests (other acquisition of equity securities, limited partnership interest or units of the Parent not to exceed $2,500,000 in the aggregate since the Eighth Amendment Effective Date, from employees, former employees, directors or former directors of the Parent or its Subsidiaries than Equity Interests (or permitted transferees Disqualified Stock or debt securities) sold to a Restricted Subsidiary of such employees, former employees, directors or former directorsAlpharma), pursuant to the terms of the agreements (including employment agreements) or plans (or amendments thereto) or other arrangements approved by the board of directors of the Parent under which such equity securities, limited partnership interest or units were granted, issued or sold; and (v) the Borrower may declare and pay dividends or distributions to the Parent in plus an amount equal to (A) Taxes then due the net reduction in Investments by Alpharma and owing by its Restricted Subsidiaries, subsequent to the Parent and (B) reasonable and customary accountingIssue Date, public company and resulting from payments of interest on Indebtedness, dividends, repayments of loans or advances or other overhead and administrative costs and expenses (exclusive transfers of assets, in each case to Alpharma or any such Restricted Subsidiary from any such Investment, or from the net cash proceeds from the sale of any markup such Investment, or premium)from the redesignation of an Unrestricted Subsidiary to a Restricted Subsidiary, including reasonable but only if and customary director’s fees and expenses, incurred by to the Parent extent that such amounts are not included in the ordinary course calculation of businessConsolidated Net Income and not to exceed in the case of any Investment the amount of the Investment previously made by Alpharma or any Restricted Subsidiary in such Person or Restricted Subsidiary.

Restricted Payments. The Borrower and the Parent Guarantors will not, and will not permit any of their respective Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, Make any Restricted Payment, return any capital to its stockholders or make any distribution of their Property to their respective Equity Interest holdersprovided, except (i) the Parent may declare and pay dividends or distributions with respect to its Equity Interests payable solely in additional shares of its Equity Interests (other than Disqualified Capital Stock); (ii) Subsidiaries of the Borrower may declare and pay dividends or distributions ratably with respect to their Equity Interests; (iii) however, so long as both before and immediately after giving effect to such Restricted Payment, (A) no Default or Event of Default has occurred and is continuing or would result therefrom, (B) the Borrower has unused Commitments of not less than 20% of the total Commitments then in effect and (C) the ratio of Total Debt as of such time (including the effect of any Borrowings or other Debt used to make such Restricted Payment) to EBITDA for the four fiscal quarters ending on the last day of the fiscal quarter immediately preceding the date of determination for which financial statements are available is equal to or less than 3.00 to 1.00, the Borrower may declare and pay cash dividends to the Parent, and the Parent may declare and pay cash dividends to its Equity Interest holders; (iv) if no Default or Event of Default has occurred and is continuing or would exist after giving effect theretoas a result thereof, Borrower shall be permitted to (a) make a Restricted Payment either (i) to The New Swank Inc. Retirement Plan consisting of advances or other Distributions made by Borrower to The New Swank Inc. Retirement Plan, the proceeds of which are used by The New Swank Inc. Retirement Plan to repurchase or other acquisition from employees of equity securities, limited partnership interest or units Borrower shares of the Parent Stock of Borrower owned by such employee or (ii) to employees of the Borrower to repurchase from such employees shares of the Stock of Borrower owned by such employee, provided, in each case (x) the aggregate amount of all such Restricted Payments made pursuant to this Section 7.10(a) shall be deducted from the calculation of EBITDA in the applicable period in which such Restricted Payment was made (whether such deduction is a result of such Restricted Payment being expensed or otherwise deducted); (y) the aggregate amount of all such Restricted Payments made pursuant to this Section 7.10(a) in any fiscal year shall not to exceed $2,500,000 in 1,000,000 less the aggregate since the Eighth Amendment Effective Date, from employees, former employees, directors or former directors amount of the Parent or its Subsidiaries Third Party Purchases (or permitted transferees of as hereinafter defined) made in such employees, former employees, directors or former directors), pursuant to the terms of the agreements (including employment agreements) or plans (or amendments thereto) or other arrangements approved by the board of directors of the Parent under which such equity securities, limited partnership interest or units were granted, issued or soldfiscal year; and (vz) the Borrower may declare Borrower’s Unused Availability Amount both before and pay dividends or distributions to the Parent in an amount equal to (A) Taxes then due and owing by the Parent after making such Restricted Payment is not less than $3,000,000; and (Bb) reasonable and customary accountingmake a Restricted Payment to holders of shares of Borrower’s stock which are not employees of Borrower (the “Non-Employee Holders”) to repurchase from such Non-Employee Holders shares of the Stock of Borrower owned by such Non-Employee Holders (each, public company and other overhead and administrative costs and expenses a “Third Party Purchase”), provided, in each case, (exclusive w) all Third Party Purchases must be consummated by not later than March 31, 2009 (the period that such Third Party Purchases may be consummated shall be hereinafter referred to as the “Third Party Purchase Period”); (x) the aggregate amount of (1) all such Restricted Payments made pursuant to this Section 7.10(b) during the entire Third Party Purchase Period shall not exceed $1,000,000; (2) all such Restricted Payments made pursuant to this Section 7.10(b) for the fiscal year ending December 31, 2008 shall not exceed $1,000,000 less the aggregate amount of any markup or premium), including reasonable and customary director’s fees and expenses, incurred by the Parent Restricted Payments made pursuant to Section 7.10(a) in the ordinary course fiscal year ending December 31, 2008; and (3) all such Restricted Payments made pursuant to this Section 7.10(b) for the period of businessJanuary 1, 2009 through the end of the Third Party Repurchase Period shall not exceed $1,000,000 less the aggregate amount of any Restricted Payments made pursuant to Section 7.10(a) for the period of January 1, 2009 through the end of the Third Party Repurchase Period; (y) the Borrower’s Unused Availability Amount both before and after making such Restricted Payment is not less than $3,000,000; and (z) Borrower provides the Lender with prior written notice of each such Third Party Purchase (including the amount of Stock being repurchased and the purchase price in respect thereof).

Restricted Payments. The Borrower and the Parent Guarantors will not, and nor will not it permit any of their respective its Restricted Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, return any capital to its stockholders or make any distribution of their Property to their respective Equity Interest holders, except that (ia) the Parent Borrower may declare and pay dividends or and make distributions with respect to its Equity Interests payable solely in additional shares Equity Interests of the Borrower, other than Disqualified Stock, (b) so long as no Default shall have occurred and be continuing or would be caused thereby, the Borrower may make Restricted Payments pursuant to and in accordance with stock option plans or other benefit plans for management or employees of the Borrower and its Restricted Subsidiaries; provided that any such Restricted Payments that are required to be made by the issuance of additional Equity Interests of the Borrower may be made regardless of whether a Default shall have occurred and is continuing, (c) any Restricted Subsidiary may make Restricted Payments to the Borrower or any Guarantor, (d) so long as no Default shall have occurred and be continuing or would be caused thereby, the Borrower may make Restricted Payments in an aggregate amount not to exceed $20,000,000, plus (i) 50% of cumulative Consolidated Net Income after December 31, 2001 (taken as one accounting period, but excluding any non-cash gains or losses associated with the application of FASB Statement 121 and Accounting Standards Codification Section 815-10), plus (ii) 66-2/3% of the aggregate net cash proceeds received by the Borrower from the issuance of its Equity Interests (other than Disqualified Capital Stock); ) at any time after December 31, 2001, minus (iiiii) Subsidiaries Restricted Payments made pursuant to Section 7.06(d) of the Borrower may declare Original Credit Agreement (or pursuant to any equivalent section of any of its predecessor agreements) prior to the Effective Date, and pay dividends or distributions ratably with respect to their Equity Interests; (iiie) so long as both before and immediately after giving effect to such Restricted Payment, (A) no Default or Event of Default has shall have occurred and is be continuing or would result therefrombe caused thereby, (B) the Borrower has unused Commitments of not less than 20% of Credit Parties may make Restricted Payments with respect to the total Commitments then in effect and (C) Senior Notes with the ratio of Total Debt as of such time (including the effect proceeds of any Borrowings or other Debt used to make such Restricted Payment) to EBITDA for the four fiscal quarters ending on the last day of the fiscal quarter immediately preceding the date of determination for which financial statements are available is equal to or less than 3.00 to 1.00, the Borrower may declare and pay cash dividends to the Parent, and the Parent may declare and pay cash dividends to its Equity Interest holders; (iv) if no Default or Event of Default has occurred and is continuing or would exist after giving effect thereto, the repurchase or other acquisition of equity securities, limited partnership interest or units of the Parent not to exceed $2,500,000 in the aggregate since the Eighth Amendment Effective Date, from employees, former employees, directors or former directors of the Parent or its Subsidiaries (or Permitted Refinancing permitted transferees of such employees, former employees, directors or former directors), pursuant to the terms of the agreements (including employment agreements) or plans (or amendments thereto) or other arrangements approved by the board of directors of the Parent under which such equity securities, limited partnership interest or units were granted, issued or sold; and (v) the Borrower may declare and pay dividends or distributions to the Parent in an amount equal to (A) Taxes then due and owing by the Parent and (B) reasonable and customary accounting, public company and other overhead and administrative costs and expenses (exclusive of any markup or premiumSection 7.01(h), including reasonable and customary director’s fees and expenses, incurred by the Parent in the ordinary course of business.

Restricted Payments. The Borrower and the Parent Guarantors Company will not, and will not permit any of their respective its Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, make any Restricted Payment, return any capital to its stockholders or make any distribution of their Property to their respective Equity Interest holdersPayments, except that (ia) the Parent Company may declare and pay dividends or distributions with respect make dividend payments to its Equity Interests payable solely common stockholders in additional shares of its Equity Interests (other than Disqualified Capital Stock); (ii) Subsidiaries an aggregate amount in any fiscal year not to exceed 15% of the Borrower may declare and pay dividends or distributions ratably with respect to their Equity Interests; amount of Excess Cash Flow for the preceding fiscal year in excess of $30,000,000, provided that (iii) so long as both before and immediately after giving effect to such Restricted Payment, (Ai) no Default or Event of Default has shall have occurred and is continuing be continuing, or would shall result therefrom, (Bii) under this Agreement during the Borrower has unused Commitments previous 12 months, no payment of not less than 20% any portion of any mandatory prepayment of the total Commitments then in effect Loans required hereby shall have been deferred or not made as a result of liquidity restrictions or otherwise and (Ciii) after giving effect to such declaration and payment the ratio Specified Group Members shall have then available at least $12,500,000 in aggregate amount of Total Debt as (x) Available Cash plus (y) available, undrawn Revolving Credit Commitments and (b) any Subsidiary of the Company may make a Restricted Payment of the nature referred to in clause (a) or (b) of the definition thereof to the Company or to either Borrower, or to any other Credit Party (provided that such time (including the effect other Credit Party is Solvent both before and immediately after receipt of any Borrowings or other Debt used to make such Restricted Payment), provided further that in the case of such a Restricted Payment by Trico Shipping or Trico Supply (i) the entire amount of such Restricted Payment is received as a Restricted Payment by the Company within one Business Day after the date such Restricted Payment is made, (ii) such Restricted Payment is made in such a manner as to EBITDA for eliminate or minimize to the four fiscal quarters ending maximum extent possible any reduction of the amount of, or any other adverse effect on the last day value, effectiveness or enforceability of, the Guaranty by Trico Supply under Section 9 hereof of the fiscal quarter immediately preceding payment and performance of the date of determination for which financial statements are available is equal to or less than 3.00 to 1.00Obligations, the Borrower may declare and pay cash dividends to the Parent, and the Parent may declare and pay cash dividends to its Equity Interest holders; (iviii) if no Default or Event of Default has occurred under Section 7.1(l) shall result from such Restricted Payment and is continuing or would exist (iv) all such Restricted Payments after giving effect theretoDecember 31, the repurchase or other acquisition of equity securities, limited partnership interest or units of the Parent 2004 shall not to exceed $2,500,000 in the aggregate since the Eighth Amendment Effective Date, from employees, former employees, directors or former directors of the Parent or its Subsidiaries (or permitted transferees of such employees, former employees, directors or former directors), pursuant to the terms of the agreements (including employment agreements) or plans (or amendments thereto) or other arrangements approved by the board of directors of the Parent under which such equity securities, limited partnership interest or units were granted, issued or sold; and (v) the Borrower may declare and pay dividends or distributions to the Parent in an amount equal to (A) Taxes then due and owing by the Parent and (B) reasonable and customary accounting, public company and other overhead and administrative costs and expenses (exclusive of any markup or premium), including reasonable and customary director’s fees and expenses, incurred by the Parent in the ordinary course of businessNOK 95,725,600.

Restricted Payments. The Borrower and the Parent Guarantors will not, and will not permit any of their respective its Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, return any capital to its stockholders or make any distribution of their Property to their respective Equity Interest holders, except (ia) the Parent Borrower may declare and pay dividends or distributions with respect to its Equity Interests payable solely in additional shares of its Equity Interests common stock, (other than Disqualified Capital Stock); (iib) Subsidiaries of the Borrower may declare and pay dividends or distributions ratably with respect to their Equity Interests; , (iiic) the Borrower may make Restricted Payments pursuant to and in accordance with stock option plans or other benefit plans for management or employees or other eligible service providers of the Borrower and its Subsidiaries, (d) the Borrower may distribute rights pursuant to a stockholder rights plan or redeem such rights, provided that such redemption is in accordance with the terms of such stockholder rights plan, (e) the Borrower may purchase, redeem or otherwise acquire Equity Interests issued by it with the proceeds received from the substantially concurrent issuance of its Equity Interests, (f) the Borrower may repurchase fractional shares of its Equity Interests arising out of stock dividends, splits or combinations, business combinations or conversions of convertible securities, (g) the Borrower may make Restricted Payments in connection with the retention of Equity Interests in payment of withholding taxes in connection with equity-based compensation plans, (h) Borrower may enter into and purchase its Equity Interests pursuant to any accelerated stock repurchase agreement, forward contract or other similar agreement and perform its obligations thereunder, provided that such repurchase of its Equity Interests is otherwise permitted under clause (e) or clause (l) of this Section 6.08 (for the avoidance of doubt, the amount of all Restricted Payments made to purchase Equity Interests pursuant to this clause (h) shall be determined based upon the net cash payments made after settlement of all payments and obligations pursuant to the terms of such accelerated stock repurchase agreement, forward contract or other similar agreement), (i) the Borrower or any Subsidiary may receive or accept the return to the Borrower or any Subsidiary of Equity Interests of the Borrower or any Subsidiary constituting a portion of the purchase price consideration in settlement of indemnification claims, (j) the Borrower or any Subsidiary may make cash payments in lieu of fractional shares in connection with the conversion of any Equity Interests or make cash settlement payments upon the exercise of warrants to purchase its Equity Interest or “net share settle” warrants, (k) the Borrower may make payments or distributions required by applicable law to dissenting stockholders of a target company on or after the consummation of the acquisition by the Borrower of such target company and (l) the Borrower and its Subsidiaries may make any other Restricted Payment so long as both before immediately prior to and immediately after giving effect to such Restricted Payment, (Aincluding giving effect on a pro forma basis) thereto (i) no Default or Event of Default has occurred and is continuing or would result therefrom, and (Bii) the Borrower has unused Commitments of not less than 20% of is in compliance with the total Commitments then financial covenants set forth in effect and (C) the ratio of Total Debt as of such time (including the effect of any Borrowings or other Debt used to make such Restricted Payment) to EBITDA for the four fiscal quarters ending on the last day of the fiscal quarter immediately preceding the date of determination for which financial statements are available is equal to or less than 3.00 to 1.00, the Borrower may declare and pay cash dividends to the Parent, and the Parent may declare and pay cash dividends to its Equity Interest holders; (iv) if no Default or Event of Default has occurred and is continuing or would exist after giving effect thereto, the repurchase or other acquisition of equity securities, limited partnership interest or units of the Parent not to exceed $2,500,000 in the aggregate since the Eighth Amendment Effective Date, from employees, former employees, directors or former directors of the Parent or its Subsidiaries (or permitted transferees of such employees, former employees, directors or former directors), pursuant to the terms of the agreements (including employment agreements) or plans (or amendments thereto) or other arrangements approved by the board of directors of the Parent under which such equity securities, limited partnership interest or units were granted, issued or sold; and (v) the Borrower may declare and pay dividends or distributions to the Parent in an amount equal to (A) Taxes then due and owing by the Parent and (B) reasonable and customary accounting, public company and other overhead and administrative costs and expenses (exclusive of any markup or premium), including reasonable and customary director’s fees and expenses, incurred by the Parent in the ordinary course of businessSection 6.10.

Restricted Payments. The Borrower and the Parent Guarantors will Borrowers shall not, and will shall not permit any of their respective the Restricted Subsidiaries to, directly or indirectly declare or make, or agree to pay or make, directly or indirectly, make any Restricted Payment; provided, return any capital to its stockholders or make any distribution of their Property to their respective Equity Interest holdershowever, except (i) the Parent may declare and pay dividends or distributions with respect to its Equity Interests payable solely in additional shares of its Equity Interests (other than Disqualified Capital Stock); (ii) Subsidiaries of the Borrower may declare and pay dividends or distributions ratably with respect to their Equity Interests; (iii) that so long as both before and immediately after giving effect to such Restricted Payment, (A) no Default or Event of Default has occurred and is continuing hereunder then exists or would result therefrombe caused thereby, the Borrowers may make, (Ba) the Borrower has unused Commitments of not less than 20% of the total Commitments then in effect and (C) the ratio of Total Debt as of such time (including the effect of any Borrowings or other Debt used to make such Restricted Payment) to EBITDA for the four fiscal quarters ending on the last day of the fiscal quarter immediately preceding the date of determination for which financial statements are available is equal to or less than 3.00 to 1.00, the Borrower may declare and pay cash dividends to the Parent, and the Parent may declare and pay cash dividends to its Equity Interest holders; (iv) if no Default or Event of Default has occurred and is continuing or would exist after giving effect thereto, the repurchase or other acquisition of equity securities, limited partnership interest or units of the Parent not to exceed $2,500,000 in the aggregate since the Eighth Amendment Effective Date, from employees, former employees, directors or former directors of the Parent or its Subsidiaries (or permitted transferees of such employees, former employees, directors or former directors), pursuant to the terms of the agreements (including employment agreements) or plans (or amendments thereto) or other arrangements approved by the board of directors of the Parent under which such equity securities, limited partnership interest or units were granted, issued or sold; and (v) the Borrower may declare and pay dividends or distributions to the Parent in an aggregate amount equal for all Borrowers not to exceed the sum of (Ai) Taxes then due the aggregate amount of Excess Cash Flow for each of the preceding fiscal years (commencing with the fiscal year ending December 31, 2003) as set forth in the financial statements delivered pursuant to Section 6.2 hereof for all such fiscal years, (ii) Cash on Hand (Borrowers) and owing (iii) cash contributed as equity to any Borrower by the Parent following the Agreement Date (less any portion of such Excess Cash Flow, Cash on Hand (Borrowers) and cash contributions used in accordance with Section 7.15 hereof to prepay the 2003 Senior Subordinated Discount Notes and the November 2003 Senior Subordinated Notes); (b) distributions to the Parent to make scheduled principal and interest payments on the Convertible Notes, the Senior Notes Due 2009 and the Senior Notes Due 2012 and any refinancings thereof that would not cause a Default under Section 8.1(n) hereof; (c) distributions to the Parent to make scheduled principal and interest payments on the Indebtedness permitted under Sections 8.1(n)(vii), (viii) and (Bix) reasonable hereof; and customary accounting, public company and other overhead and administrative costs and expenses (exclusive of any markup or premium), including reasonable and customary director’s fees and expenses, incurred by d) distributions to the Parent in (including distributions from proceeds of the ordinary course Loans) to prepay, redeem, otherwise retire or repurchase (including payment of businesspremiums and accrued interest associated therewith) all or any portion of Indebtedness for Money Borrowed of the Parent outstanding on the Agreement Date (excluding any Indebtedness for Money Borrowed of the Parent relating exclusively to any Verestar Entity).

Restricted Payments. The Borrower and Each of the Parent Guarantors Credit Parties will not, and nor will not it permit any of their respective its Restricted Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, declare, order, make or set apart any sum for or pay any Restricted Payment, return except (a) to make dividends or other distributions payable solely in the same class of Equity Interests of such Person; (b) to make dividends or other distributions payable to any capital Credit Party (directly or indirectly through Subsidiaries); (c) subject to the subordination terms thereof, to make regularly scheduled interest payments under any Subordinated Indebtedness; (d) the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Borrower or any Restricted Subsidiary of the Borrower held by any current or former officer, director or employee of the Borrower or any of its stockholders Restricted Subsidiaries pursuant to any equity subscription agreement, stock option agreement, shareholders’ agreement or make any distribution of their Property to their respective Equity Interest holders, except similar agreement; provided that (i) the Parent may declare and pay dividends aggregate price paid for all such repurchased, redeemed, acquired or distributions with respect to its retired Equity Interests payable solely may not exceed $25,000,000 in additional shares any twelve (12)-month period plus the portion of its such amount available but unused from prior twelve (12)-month periods and (ii) such amount in any calendar year may be increased by an amount not to exceed (A) the net cash proceeds received by the Borrower from the sale of Equity Interests (other than Disqualified Capital Stock) of the Borrower to members of management or directors of the Borrower and its Restricted Subsidiaries that occurs after the Closing Date (to the extent such cash proceeds from the sale of such Equity Interests have not otherwise been applied to the payment of Restricted Payments), plus (B) the net cash proceeds of key man life insurance policies received by the Borrower and its Restricted Subsidiaries after the Closing Date, less (C) the amount of any Restricted Payments made pursuant to clauses (ii)(A) and (ii)(B) of this clause (d); (e) the repurchase of Equity Interests deemed to occur (i) upon the exercise of stock options, warrants or other convertible securities (other than, for the avoidance of doubt, convertible securities constituting Convertible Bond Indebtedness) to the extent such Equity Interests represent a portion of the exercise price thereof or (ii) Subsidiaries upon the transfer of shares of restricted stock to the Borrower may declare and pay dividends in connection with the payment of withholding tax by the Borrower or distributions ratably with respect to their Equity Interestsa Restricted Subsidiary following a sale of shares of restricted stock by the holder thereof; (iiif) so long as both before and immediately after giving effect to such Restricted Payment, (A) no Default or Event of Default has occurred and is continuing or would result therefrom, (Bi) to make dividends, repurchase shares of its Equity Interests and make other Restricted Payments in an aggregate amount not to exceed $150,000,000 for the period from the Closing Date through the Maturity Date and (ii) if the Consolidated Net Leverage Ratio would be less than or equal to 2.75 to 1.0 as of the last fiscal quarter end on a Pro Forma Basis, after giving effect thereto, to make unlimited dividends, share repurchases and other Restricted Payments (it being understood and agreed that Restricted Payments made pursuant to this clause (ii) shall not be included in the calculation of the amount available for Restricted Payments pursuant to the foregoing clause (i)); (g) the Borrower has unused Commitments may (i) enter into Capped Call Transactions, Convertible Bond Hedge Transactions and Warrant Transactions in connection with the issuance of not less than 20% Convertible Bond Indebtedness permitted under Section 8.01(q) and satisfy its obligations to pay premiums upon entering into such transactions and (ii) make any payment in connection therewith by delivery of shares of the total Commitments then Borrower’s common stock upon net share settlement thereof (together with cash in effect and lieu of fractional shares) or set-off, netting and/or payment of an early termination payment or similar payment thereunder upon any early termination thereof, in each case made in Borrower’s common stock; (Ch) the ratio Borrower may issue shares of Total Debt as its common stock, make cash payments of interest required pursuant to the related indenture, make cash payments required to be made under the related indenture in an amount (excluding any required payment of interest with respect to such time (including the effect Convertible Bond Indebtedness and excluding any payment of any Borrowings or other Debt used to make such Restricted Paymentcash in lieu of a fractional share) to EBITDA for the four fiscal quarters ending on the last day of the fiscal quarter immediately preceding the date of determination for which financial statements are available is equal to or less than 3.00 the principal amount of the Convertible Bond Indebtedness in respect of which such cash payment is made and/or make cash payments in lieu of issuing fractional shares, in each case, to 1.00satisfy obligations in respect of Convertible Bond Indebtedness (including, for the avoidance of doubt, cash payments in lieu of issuing fractional shares pursuant to the terms of any related Capped Call Transaction, Convertible Bond Hedge Transaction or Warrant Transaction); (i) the Borrower may declare make cash payments to satisfy obligations in respect of Convertible Bond Indebtedness, Capped Call Transactions, Convertible Bond Hedge Transactions and pay cash dividends Warrant Transactions solely to the Parentextent the 110 Borrower does not have the option of satisfying such payment obligations through the issuance of the Borrower’s common stock or is required to satisfy such payment obligations in cash, it being understood and agreed that any payment made in cash in connection with Convertible Bond Indebtedness, Capped Call Transactions, Convertible Bond Hedge Transactions and Warrant Transactions by set-off, netting and/or payment of an early termination payment or similar payment thereunder upon any early termination thereof, in each case, after using commercially reasonable efforts to satisfy such obligation (or the Parent may declare and pay cash dividends portion thereof remaining after giving effect to its Equity Interest holdersany netting or set-off against termination or similar payments under an applicable Convertible Bond Hedge Transaction) by delivery of shares of the Borrower’s common stock shall be deemed to be a payment obligation required to be satisfied in cash; (ivj) if the Borrower may receive shares of its own common stock and/or cash on account of settlements and/or early terminations or unwinds howsoever documented or agreed of any Convertible Bond Hedge Transactions, Capped Call Transactions or Warrant Transactions; (k) the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Borrower in connection with any Convertible Bond Indebtedness with proceeds received (or substantially simultaneously received) from the issuance of such Convertible Bond Indebtedness, in an aggregate amount not to exceed $100,000,000, it being understood and agreed that any payment, repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Borrower made in connection with any Permitted Refinancing shall be permitted and shall not be subject to any dollar limitation; and (l) other Restricted Payments not permitted by the foregoing clauses; provided that (i) no Default or Event of Default has occurred shall exist immediately before and is continuing or would exist immediately after giving effect theretoto such Restricted Payment, (ii) the repurchase or other acquisition Credit Parties shall be in compliance with the financial covenants in Section 7.07 on a Pro Forma Basis after giving effect to such Restricted Payment, and (iii) the aggregate amount of equity securities, limited partnership interest or units all Restricted Payments made pursuant to this clause (l) plus the aggregate amount of the Parent all Investments made pursuant to Section 8.05(b) shall not to exceed $2,500,000 in the aggregate since the Eighth Amendment Effective Date, from employees, former employees, directors or former directors of the Parent or its Subsidiaries (or permitted transferees of such employees, former employees, directors or former directors), pursuant to the terms of the agreements (including employment agreements) or plans (or amendments thereto) or other arrangements approved by the board of directors of the Parent under which such equity securities, limited partnership interest or units were granted, issued or sold; and (v) the Borrower may declare and pay dividends or distributions to the Parent in an amount equal to (A) Taxes then due and owing by the Parent and (B) reasonable and customary accounting, public company and other overhead and administrative costs and expenses (exclusive of 50,000,000 at any markup or premium), including reasonable and customary director’s fees and expenses, incurred by the Parent in the ordinary course of businesstime outstanding.

Restricted Payments. The Borrower and the Parent Guarantors will not, and will not permit any of their respective its Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, return any capital to its stockholders or make any distribution of their Property to their respective Equity Interest holders, except (ia) the Parent Borrower may declare and pay dividends or distributions with respect to its Equity Interests payable solely in additional shares of its Equity Interests common stock, (other than Disqualified Capital Stock); (iib) Subsidiaries of the Borrower may declare and pay dividends or distributions ratably with respect to their Equity Interests; , (iiic) the Borrower may make Restricted Payments pursuant to and in accordance with stock option plans or other benefit plans for management or employees of the Borrower and its Subsidiaries, (d) the Borrower may repurchase its Equity Interests that were issued to a seller in respect of a Permitted Acquisition so long as both before and immediately after giving effect to such Restricted Payment, (Ai) no Default or Event of Default has occurred and is continuing prior to making such Restricted Payment or would result therefromarise after giving effect (including giving effect on a pro forma basis) thereto, (Bii) any such repurchase occurs within the twelve-month period immediately following the consummation of such Permitted Acquisition, (iii) at the time of the consummation of such Permitted Acquisition, the Borrower has unused Commitments could have paid such seller in cash in lieu of not such Equity Interests and (iv) immediately after giving effect (including giving effect on a pro forma basis) thereto, the Total Leverage Ratio is less than 20% of the total Commitments then in effect and (C) the ratio of Total Debt as of such time (including the effect of any Borrowings or other Debt used to make such Restricted Payment) to EBITDA for the four fiscal quarters ending on the last day of the fiscal quarter immediately preceding the date of determination for which financial statements are available is equal to or less than 3.00 to 1.00, and (e) the Borrower and its Subsidiaries may declare and pay cash dividends to the Parent, and the Parent may declare and pay cash dividends to its Equity Interest holders; (iv) if make any other Restricted Payment so long as no Default or Event of Default has occurred and is continuing prior to making such Restricted Payment or would exist arise after giving effect (including giving effect on a pro forma basis) thereto and the aggregate amount of all such Restricted Payments during any fiscal year of the Borrower does not exceed $75,000,000; provided that, if at the time of and immediately after giving effect (including giving effect on a pro forma basis) thereto, the repurchase Total Leverage Ratio is less than or other acquisition of equity securities, limited partnership interest or units of the Parent not to exceed $2,500,000 in the aggregate since the Eighth Amendment Effective Date, from employees, former employees, directors or former directors of the Parent or its Subsidiaries (or permitted transferees of such employees, former employees, directors or former directors), pursuant to the terms of the agreements (including employment agreements) or plans (or amendments thereto) or other arrangements approved by the board of directors of the Parent under which such equity securities, limited partnership interest or units were granted, issued or sold; and (v) the Borrower may declare and pay dividends or distributions to the Parent in an amount equal to (A) Taxes then due and owing by the Parent and (B) reasonable and customary accounting2.50 to 1.00, public company and other overhead and administrative costs and expenses (exclusive of any markup or premium), including reasonable and customary director’s fees and expenses, incurred by the Parent in the ordinary course of businessthere shall be no Dollar limitation on such Restricted Payments.

Restricted Payments. The Borrower and the Parent Guarantors will not, and will not permit any of their respective its Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Paymentdividend on any class of its stock, return any capital to its stockholders or make any distribution payment on account of, or set apart assets for a sinking or other analogous fund for, the purchase, redemption, retirement, defeasance or other acquisition of, any shares of their Property common stock or Indebtedness subordinated to their respective Equity Interest holdersthe Obligations of the Borrower or any options, warrants, or other rights to purchase such common stock or such Indebtedness, whether now or hereafter outstanding (each, a “Restricted Payment”), except for (i) dividends payable by the Parent may declare and pay dividends or distributions with respect to its Equity Interests payable Borrower solely in additional shares of any class of its Equity Interests (other than Disqualified Capital Stock); common stock, (ii) Restricted Payments made by any Subsidiary ratably to the Borrower, any other Subsidiaries of the Borrower may declare and pay dividends or distributions ratably with respect to their Equity Interests; any other minority shareholders of a Subsidiary of Borrower, and (iii) so long as both before redemptions and immediately after giving effect to such Restricted Paymentother purchases of the common stock of the Borrower for cash; provided, that (Aa) no Default or Event of Default has occurred and is continuing at the time such dividend is paid or would result therefromsuch redemption or purchase is made, and (Bb) no more than $50,000,000 in the Borrower has unused Commitments of not less than 20% aggregate is paid for redemption or purchase of the total Commitments then Borrower’s stock during the term hereof. Notwithstanding any provisions in effect and (C) this Section to the ratio of Total Debt as of such time (including the effect of any Borrowings or other Debt used to make such Restricted Payment) to EBITDA for the four fiscal quarters ending on the last day of the fiscal quarter immediately preceding the date of determination for which financial statements are available is equal to or less than 3.00 to 1.00contrary, the Borrower may declare and pay cash dividends to the Parentwill not, and the Parent may declare and pay cash dividends to its Equity Interest holders; (iv) if no Default or Event of Default has occurred and is continuing or would exist after giving effect thereto, the repurchase or other acquisition of equity securities, limited partnership interest or units of the Parent will not to exceed $2,500,000 in the aggregate since the Eighth Amendment Effective Date, from employees, former employees, directors or former directors of the Parent or permit its Subsidiaries (or permitted transferees of such employeesto, former employees, directors or former directors), pursuant make a Restricted Payment to the terms of the agreements (including employment agreements) or plans (or amendments thereto) or other arrangements approved by the board of directors of the Parent under which such equity securities, limited partnership interest or units were granted, issued or sold; a Restricted Subsidiary and (v) the Borrower may declare will not, and pay dividends or distributions will not permit its Domestic Subsidiaries to, make a Restricted Payment to the Parent in a Foreign Subsidiary except as an amount equal to Investment permitted under Section 7.4 (A) Taxes then due and owing by the Parent and (B) reasonable and customary accounting, public company and other overhead and administrative costs and expenses (exclusive of any markup or premiumg), including reasonable and customary director’s fees and expenses, incurred by the Parent in the ordinary course of business.

Restricted Payments. The Borrower and the Parent Guarantors Company will not, and will not permit any of their respective its Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, return any capital to its stockholders or make any distribution of their Property to their respective Equity Interest holders, except (ia) the Parent Company may declare and pay dividends or distributions with respect to its Equity Interests payable solely in additional shares of its Equity Interests common stock, (other than Disqualified Capital Stock); (iib) Subsidiaries of the Borrower may declare and pay dividends or distributions ratably with respect to their Equity Interests; Interests (iiior more favorable basis from the perspective of the Company or the Subsidiary which is the parent of such Subsidiary), (c) the Company may make Restricted Payments pursuant to and in accordance with stock option plans or other benefit plans for management or employees of the Company and its Subsidiaries, (d) the Company may make Restricted Payments so long as both before and immediately after giving effect to such Restricted Payment, (Ai) no Default or Event of Default has occurred and is continuing at the time of such declaration, payment, purchase, redemption, retirement, acquisition, cancellation or would result therefromtermination, (B) the Borrower has unused Commitments of not less than 20% of the total Commitments then in effect and (Cii) after making such declaration, payment, purchase, redemption, retirement, acquisition, cancellation or termination, the ratio of Total Debt as of such time (including the effect of any Borrowings or other Debt used to make such Restricted Payment) to EBITDA for the four fiscal quarters ending on the last day of the fiscal quarter immediately preceding the date of determination for which financial statements are available is equal to or less than Company’s pro forma Consolidated Net Lease Adjusted Leverage Ratio would not exceed 3.00 to 1.00; provided, that the Borrower may declare and pay cash dividends declaration, payment, purchase, redemption, retirement, acquisition, cancellation or termination of any such Equity Interests of up to $50,000,000 in the Parent, and the Parent may declare and pay cash dividends to its Equity Interest holders; aggregate for any trailing four fiscal quarter period shall be permitted under this clause (ivd) if so long as (i) no Default or Event of Default has occurred and is continuing at the time of such declaration, payment, purchase, redemption, retirement, acquisition, cancellation or would exist after giving effect theretotermination and (ii) the Company is in compliance (on a pro forma basis) with the covenant contained in paragraph 6L, (e) non-cash repurchases of Equity Interests deemed to occur upon the repurchase exercise or settlement of stock options, stock appreciation rights, restricted stock units, warrants or other acquisition of equity securities, limited partnership interest convertible or units exchangeable securities or other Equity Interests if such Equity Interests represents a portion of the Parent not exercise price of, or withholding obligation with respect to, such options, stock appreciation rights, restricted stock units, warrants or other convertible or exchangeable securities or other Equity Interests, and (f) Restricted Payments to exceed $2,500,000 make payments, in the aggregate since the Eighth Amendment Effective Datecash, from employees, former employees, directors or former directors in lieu of the Parent issuance of fractional shares, upon the exercise of warrants or its Subsidiaries (upon the conversion or permitted transferees exchange of such employees, former employees, directors or former directors), pursuant to the terms of the agreements (including employment agreements) or plans (or amendments thereto) or other arrangements approved by the board of directors of the Parent under which such equity securities, limited partnership interest or units were granted, issued or sold; and (v) the Borrower may declare and pay dividends or distributions to the Parent in an amount equal to (A) Taxes then due and owing by the Parent and (B) reasonable and customary accounting, public company and other overhead and administrative costs and expenses (exclusive Equity Interests of any markup or premium), including reasonable and customary director’s fees and expenses, incurred by the Parent in the ordinary course of businesssuch Person.

Restricted Payments. The Borrower and the Parent Guarantors will not, and will not permit any of their respective its Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, return any capital to its stockholders or make any distribution of their Property to their respective Equity Interest holders, except (ia) the Parent Borrower may declare and pay dividends or distributions dividends, including in connection with any stock split, with respect to its Equity Interests payable solely in additional shares of its Equity Interests common stock, (other than Disqualified Capital Stock); (iib) Subsidiaries of the Borrower may declare and pay dividends or distributions ratably with respect to their Equity Interests; , (iiic) the Borrower may make Restricted Payments pursuant to and in accordance with stock option plans or other benefit plans for management or employees of the Borrower and its Subsidiaries and (d) the Borrower and its Subsidiaries may make any other Restricted Payment so long as both before and immediately after giving effect to such Restricted Payment, (A) no Default or Event of Default has occurred and is continuing prior to making such Restricted Payment or would result therefrom, arise after giving effect (Bincluding giving effect on a pro forma basis) thereto and the aggregate amount of all such Restricted Payments and all prepayments of Subordinated Indebtedness made in reliance on clause (iii) of Section 6.09 during any fiscal year of the Borrower has does not exceed $20,000,000 (with unused Commitments amounts in any fiscal year being permitted to be carried over to the next succeeding fiscal year only); provided that, solely in respect of Restricted Payments made in reliance on clause (d) of this Section 6.07 (and not, for the avoidance of doubt, in respect of prepayments of Subordinated Indebtedness made in reliance on clause (iii) of Section 6.09) such $20,000,000 limitation shall not less than 20% apply if at the time of the total Commitments then in effect and (C) the ratio of Total Debt as making of such time Restricted Payment and immediately after giving effect (including giving effect on a pro forma basis) thereto, the effect of any Borrowings or other Debt used to make such Restricted Payment) to EBITDA for the four fiscal quarters ending on the last day of the fiscal quarter immediately preceding the date of determination for which financial statements are available Leverage Ratio is equal to or less than 3.00 3.25 to 1.00, the Borrower may declare and pay cash dividends to the Parent, and the Parent may declare and pay cash dividends to its Equity Interest holders; (iv) if no Default or Event of Default has occurred and is continuing or would exist after giving effect thereto, the repurchase or other acquisition of equity securities, limited partnership interest or units of the Parent not to exceed $2,500,000 in the aggregate since the Eighth Amendment Effective Date, from employees, former employees, directors or former directors of the Parent or its Subsidiaries (or permitted transferees of such employees, former employees, directors or former directors), pursuant to the terms of the agreements (including employment agreements) or plans (or amendments thereto) or other arrangements approved by the board of directors of the Parent under which such equity securities, limited partnership interest or units were granted, issued or sold; and (v) the Borrower may declare and pay dividends or distributions to the Parent in an amount equal to (A) Taxes then due and owing by the Parent and (B) reasonable and customary accounting, public company and other overhead and administrative costs and expenses (exclusive of any markup or premium), including reasonable and customary director’s fees and expenses, incurred by the Parent in the ordinary course of business.

Restricted Payments. The Borrower and the Parent Guarantors will not, and will not permit any of their respective its Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, return any capital to its stockholders or make any distribution of their Property to their respective Equity Interest holders, except (ia) the Parent Borrower may declare and pay dividends or distributions with respect to its Equity Interests payable solely in additional shares of its Equity Interests common stock, (other than Disqualified Capital Stock); (iib) Subsidiaries of the Borrower may declare and pay dividends or distributions ratably with respect to their Equity Interests; (iii) so long as both before and immediately after giving effect to such Restricted Payment, (A) no Default or Event of Default has occurred and is continuing or would result therefrom, (Bc) the Borrower has unused Commitments of not less than 20% may make Restricted Payments pursuant to and in accordance with stock option plans or other benefit plans for management or employees of the total Commitments then in effect Borrower and its Subsidiaries, (C) the ratio of Total Debt as of such time (including the effect of any Borrowings or other Debt used to make such Restricted Payment) to EBITDA for the four fiscal quarters ending on the last day of the fiscal quarter immediately preceding the date of determination for which financial statements are available is equal to or less than 3.00 to 1.00, the Borrower may declare and pay cash dividends to the Parent, and the Parent may declare and pay cash dividends to its Equity Interest holders; (iv) if no Default or Event of Default has occurred and is continuing or would exist after giving effect thereto, the repurchase or other acquisition of equity securities, limited partnership interest or units of the Parent not to exceed $2,500,000 in the aggregate since the Eighth Amendment Effective Date, from employees, former employees, directors or former directors of the Parent or its Subsidiaries (or permitted transferees of such employees, former employees, directors or former directors), pursuant to the terms of the agreements (including employment agreements) or plans (or amendments thereto) or other arrangements approved by the board of directors of the Parent under which such equity securities, limited partnership interest or units were granted, issued or sold; and (vd) the Borrower may declare and pay dividends on its capital stock during any fiscal year up to an amount which, when added to all other dividends paid during such fiscal year, does not exceed fifty percent (50%) of cumulative net income of the Borrower for such fiscal year to such date, (e) [reserved] and (f) the Borrower may make Restricted Payments for the purpose of repurchasing Equity Interests of the Borrower under the share buyback plan existing as of August 1, 2007 (ignoring any restriction included in such share buyback plan on the percentage of Borrower’s outstanding shares that may be purchased), as it may be amended from time to time, or distributions under any other share buyback plan approved from time to time by the Parent Borrower’s board of directors, in an aggregate amount equal not to exceed $25,000,000 in any calendar year, provided in all cases (Aa) Taxes then due through (f), inclusive, above that no Default or Event of Default shall exist before or after giving effect to such Restricted Payment and owing by in the Parent case of clauses (d) and (B) reasonable and customary accounting, public company and other overhead and administrative costs and expenses (exclusive of any markup or premiumf), including reasonable that Availability shall not be less than $10,000,000 before and customary director’s fees and expenses, incurred by the Parent in the ordinary course of businessafter giving effect to such Restricted Payment.

Restricted Payments. The Borrower and the Parent Guarantors will not, and will not permit any of their respective Subsidiaries to, declare or make, or agree to pay Declare or make, directly or indirectly, any Restricted Payment, return or incur any capital obligation (contingent or otherwise) to its stockholders or do so, except: (a) each Subsidiary of the Company may declare and make dividend payments in cash with respect to any distribution class of their Property Equity Interests of such Subsidiary to the then holders of such Equity Interests ratably according to their respective holdings; (b) the Company and each of its Subsidiaries may declare and make dividend payments or other distributions payable solely in the common stock or other common Equity Interest holders, except Interests of such Person to the then holders of such Equity Interests ratably according to their respective holdings; (c) the Company may issue and sell (i) its common Equity Interests; provided that no Change of Control would result from such issuance and sale; and (ii) the Parent Company may declare issue and pay dividends or distributions sell its Equity Interest in connection with grants of such securities and stock options with respect to its Equity Interests payable solely in additional shares of its Equity Interests (other than Disqualified Capital Stock); (ii) Subsidiaries such securities pursuant to employment, benefit plans, service and severance arrangements with current and former officers, directors, consultants, advisors and employees of the Borrower may declare and pay dividends Company or distributions ratably with respect to their Equity Interests; (iii) so long as both before and immediately after giving effect to such Restricted Payment, (A) no Default or Event of Default has occurred and is continuing or would result therefrom, (B) the Borrower has unused Commitments of not less than 20% any Subsidiary of the total Commitments then Company, as determined in effect and (C) the ratio of Total Debt as of such time (including the effect of any Borrowings or other Debt used to make such Restricted Payment) to EBITDA for the four fiscal quarters ending on the last day of the fiscal quarter immediately preceding the date of determination for which financial statements are available is equal to or less than 3.00 to 1.00, the Borrower may declare and pay cash dividends to the Parent, and the Parent may declare and pay cash dividends to its Equity Interest holders; (iv) if no Default or Event of Default has occurred and is continuing or would exist after giving effect thereto, the repurchase or other acquisition of equity securities, limited partnership interest or units of the Parent not to exceed $2,500,000 in the aggregate since the Eighth Amendment Effective Date, from employees, former employees, directors or former directors of the Parent or its Subsidiaries (or permitted transferees of such employees, former employees, directors or former directors), pursuant to the terms of the agreements (including employment agreements) or plans (or amendments thereto) or other arrangements approved good faith by the board of directors or senior management of the Parent under which Company or such equity securitiesSubsidiary, limited partnership interest as applicable; (d) the Company may make payments in respect of, or units were grantedrepurchases of its Equity Interests deemed to occur upon the “cashless exercise” of, issued stock options, stock purchase rights, stock exchange rights or soldother equity-based awards if such payment or Equity Interests represents a portion of the exercise price of such options or rights or withholding taxes, payroll taxes or other similar taxes due upon such exercise, purchase or exchange; (e) the Company may make the Xxxxxxx Dividend; and (vf) the Borrower Company and each of its Subsidiaries may declare and pay dividends make Restricted Payments not otherwise permitted by this Section 7.09; provided that no Event of Default shall have occurred and be continuing at the time of the declaration of such Restricted Payment or distributions to the Parent in an amount equal to (A) Taxes then due and owing by the Parent and (B) reasonable and customary accounting, public company and other overhead and administrative costs and expenses (exclusive of any markup or premium), including reasonable and customary director’s fees and expenses, incurred by the Parent in the ordinary course of business.would result therefrom. ARTICLE VIII

Restricted Payments. The Borrower and the Parent Guarantors Company will not, and will not permit any of their respective Subsidiaries Restricted Subsidiary to, declare make any Restricted Investment or make, or agree to pay or make, directly or indirectly, any Restricted Payment, return any capital to its stockholders or make any distribution of their Property to their respective Equity Interest holdersif, except (i) the Parent may declare and pay dividends or distributions with respect to its Equity Interests payable solely in additional shares of its Equity Interests (other than Disqualified Capital Stock); (ii) Subsidiaries of the Borrower may declare and pay dividends or distributions ratably with respect to their Equity Interests; (iii) so long as both before and immediately after giving effect to such Restricted Payment, (A) no Default or Event of Default has occurred and is continuing or would result therefrom, (B) the Borrower has unused Commitments of not less than 20% of the total Commitments then in effect and (C) the ratio of Total Debt as of such time (including the effect of any Borrowings or other Debt used to make such Restricted Payment) to EBITDA for the four fiscal quarters ending on the last day of the fiscal quarter immediately preceding the date of determination for which financial statements are available is equal to or less than 3.00 to 1.00, the Borrower may declare and pay cash dividends to the Parent, and the Parent may declare and pay cash dividends to its Equity Interest holders; (iv) if no Default or Event of Default has occurred and is continuing or would exist after giving effect thereto, the repurchase or other acquisition sum of equity securities(i) the aggregate amount of Restricted Payments made during the period from and after January 1, limited partnership interest or units 1999 to and including the date of the Parent not to exceed $2,500,000 making of the Restricted Payment in question, plus (ii) the aggregate since amount of all Restricted Investments made by the Eighth Amendment Effective DateCompany or any Restricted Subsidiary during said period would exceed the sum of (x) U.S. $100,000,000 plus (y) 75% of Consolidated Net Income for such period, from employees, former employees, directors or former directors of the Parent or its Subsidiaries computed on a cumulative basis for said entire period (or permitted transferees if such Consolidated Net Income is a deficit figure for any fiscal period within such period, then minus 100% of such employees, former employees, directors or former directors), pursuant to the terms of the agreements deficit) plus (including employment agreementsz) or plans (or amendments thereto) or other arrangements approved by the board of directors of the Parent under which such equity securities, limited partnership interest or units were granted, issued or sold; and (v) the Borrower may declare and pay dividends or distributions to the Parent in an amount equal to (A) Taxes then due and owing the aggregate net cash proceeds received by the Parent and Company from the issuance or sale after January 1, 1998 (Bother than to the Company or any Subsidiary) reasonable and customary accountingof shares of common stock of the Company. In addition to the foregoing restrictions, public company and other overhead and administrative costs and expenses (exclusive the Company will not make any Restricted Payment or any Restricted Investment if, at the time thereof or after giving effect thereto, any Default or Event of Default shall exist. The Company will not declare any dividend which constitutes a Restricted Payment payable more than 60 days after the date of declaration thereof. For the purposes of this SECTION5.11, the amount of any markup Restricted Payment declared, paid or premium), including reasonable and customary director’s fees and expenses, incurred distributed in property shall be deemed to be the greater of the book value or fair market value (as determined in good faith by the Parent Board of Directors of the Company) of such property at the time of the making of the Restricted Payment in question. In valuing any Restricted Investments for the ordinary course purpose of businessapplying the limitations set forth in this SECTION5.11, such Restricted Investments shall be taken at the original cost thereof, without allowance for any subsequent write-offs or appreciation or depreciation therein, but less any amount repaid or recovered on account of capital or principal. For purposes of this SECTION5.11, at any time when a corporation becomes a Restricted Subsidiary, all Restricted Investments of such corporation at such time shall be deemed to have been made by such corporation, as a Restricted Subsidiary, at such time.

Restricted Payments. The Borrower shall not make any Restricted Payment to any Person and the Parent Guarantors will not, and will Borrower shall not permit any of their respective Subsidiaries to, declare or make, or agree Significant Subsidiary to pay or make, directly or indirectly, make any Restricted Payment, return any capital to its stockholders or make any distribution of their Property to their respective Equity Interest holders, Payment except that (i) the Parent ECI may declare and pay dividends or distributions make Restricted Payments with respect to its Equity Interests payable solely in additional shares of its Equity Interests (other than Disqualified Capital Stock); common stock to the Borrower, (ii) the wholly-owned Subsidiaries of the Borrower ECI may declare and pay dividends or distributions ratably make Restricted Payments with respect to their Equity Interests; common stock to ECI, (iii) so long as both before and immediately after giving effect any Significant Subsidiary may pay management fees to such Restricted PaymentBorrower, (Aiv) no Default ECI may pay its obligations owing to Borrower or Event on behalf of Default has occurred Borrower under that certain Agreement dated as of June 25, 1991, as amended to date, by and is continuing or would result therefromamong Xxxx, Xxxxx, ECI and Above the Belt, Inc., in accordance with the terms thereof as in effect on the date hereof, (Bv) the Borrower has unused Commitments of not less than 20% of the total Commitments then in effect and (C) the ratio of Total Debt as of such time (including the effect of any Borrowings may redeem, retire, purchase or other Debt used to make such Restricted Payment) to EBITDA for the four fiscal quarters ending on the last day of the fiscal quarter immediately preceding the date of determination for which financial statements are available is equal to or less than 3.00 to 1.00, the Borrower may declare and pay cash dividends to the Parent, and the Parent may declare and pay cash dividends to otherwise acquire its Equity Interest holders; (iv) if no Default or Event of Default has occurred and is continuing or would exist after giving effect thereto, the repurchase or other acquisition of equity securities, limited partnership interest or units of the Parent not to exceed $2,500,000 in the aggregate since the Eighth Amendment Effective Date, stock from employees, former employees, directors and the estates, beneficiaries under will and intestate distributees of former employees in connection with the cessation of employment with the Borrower or former directors of any Subsidiary in an aggregate amount which does not exceed $20,000 in any one fiscal year and $100,000 from the Parent or its Subsidiaries date hereof, (or permitted transferees of such employees, former employees, directors or former directors), pursuant to the terms of the agreements (including employment agreements) or plans (or amendments thereto) or other arrangements approved by the board of directors of the Parent under which such equity securities, limited partnership interest or units were granted, issued or sold; and (vvi) the Borrower may declare and pay dividends redeem, retire, purchase or distributions otherwise acquire its stock in exchange for, or out of the net proceeds of, the substantially concurrent sale of other shares of its stock, (vii) Significant Subsidiaries of ECI may make loans or advances to the Parent in an amount equal to (A) Taxes then due and owing by the Parent and (B) reasonable and customary accounting, public company and other overhead and administrative costs and expenses (exclusive of any markup or premium), including reasonable and customary director’s fees and expenses, incurred by the Parent ECI in the ordinary course of businessbusiness and consistent with past practice and ECI may make loans or advances to such Significant Subsidiaries in the ordinary course of business and consistent with past practice in an aggregate amount at any one time outstanding not to exceed $250,000 and (viii) any Significant Subsidiary of Aris may make loans and advances to Aris in the ordinary course of business and consistent with past practice; provided, that such loans or advances are expressly subordinated to the payment of this Note.

Restricted Payments. The Borrower and the Parent Guarantors will not, and will not permit any of their respective its Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, make any Restricted Payment; provided, return any capital to its stockholders or make any distribution of their Property to their respective Equity Interest holdersthat, except (i) the Parent may declare and pay dividends or distributions with respect to its Equity Interests payable solely in additional shares of its Equity Interests (other than Disqualified Capital Stock); (ii) Subsidiaries of the Borrower may declare and pay dividends or distributions ratably with respect to their Equity Interests; (iii) so long as both before it is permitted by law, and immediately after giving effect to such Restricted Payment, (A) so long as no Default or Event of Default has shall have occurred and is be continuing or would result therefrom, (Ba) the Borrower has unused Commitments may make distributions to former employees, officers, or directors of not less than 20% Borrower (or any spouses, ex-spouses, or estates of any of the total Commitments then foregoing) on account of redemptions of Equity Interests of Borrower held by such Persons, provided, that the aggregate amount of such redemptions made by Borrower during the term of this Agreement plus the amount of Indebtedness outstanding under clause (1) of the definition of Permitted Indebtedness, does not exceed $1,000,000 in effect the aggregate, (b) Borrower may make distributions to former employees, officers, or directors of Borrower (or any spouses, ex-spouses, or estates of any of the foregoing), solely in the form of forgiveness- of Indebtedness of such Persons owing to Borrower on account of repurchases of the Equity Interests of Borrower held by such Persons; provided that such Indebtedness was incurred by such Persons solely to acquire Equity Interests of Borrower, and (Cc) Borrower and each Subsidiary may purchase, redeem or otherwise acquire its common Equity Interests or warrants or options to acquire any such common Equity Interests with the ratio proceeds received from the substantially concurrent issue of Total Debt new shares of its common Equity Interests; (d) Borrower and each Subsidiary may purchase, redeem or otherwise acquire its common Equity Interests pursuant to a stock repurchase plan so long as (i) as of such time (including the effect date of any Borrowings or other Debt used to make such Restricted Payment) to EBITDA for the four fiscal quarters ending on the last day of the fiscal quarter immediately preceding the date of determination for which financial statements are available is equal to or less than 3.00 to 1.00, the Borrower may declare and pay cash dividends to the Parent, and the Parent may declare and pay cash dividends to its Equity Interest holders; (iv) if after giving effect thereto, no Default or Event of Default has shall exist or have occurred and is continuing or would exist be continuing, (ii) the aggregate amount of such Restricted Payments in any Fiscal Year does not exceed $7,500,000, and (iii) after giving effect to any such Restricted Payment, the aggregate amount of such Restricted Payments made after the Closing Date does not exceed $25,000,000. (e) Borrower may make other distributions in respect of its Equity Interests so long as each of the following conditions are satisfied: (i) as of the date of such Restricted Payment, and after giving effect thereto, the repurchase no Default or other acquisition Event of equity securities, limited partnership interest Default shall exist or units of the Parent not to exceed $2,500,000 in the aggregate since the Eighth Amendment Effective Date, from employees, former employees, directors or former directors of the Parent or its Subsidiaries (or permitted transferees of such employees, former employees, directors or former directors), pursuant to the terms of the agreements (including employment agreements) or plans (or amendments thereto) or other arrangements approved by the board of directors of the Parent under which such equity securities, limited partnership interest or units were granted, issued or sold; have occurred and (v) the Borrower may declare and pay dividends or distributions to the Parent in an amount equal to (A) Taxes then due and owing by the Parent and (B) reasonable and customary accounting, public company and other overhead and administrative costs and expenses (exclusive of any markup or premium), including reasonable and customary director’s fees and expenses, incurred by the Parent in the ordinary course of business.be continuing,

Restricted Payments. The Borrower and the Parent Guarantors Each Loan Party will not, and will not permit any of their respective its Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, make any Restricted Payment; provided, return any capital to its stockholders or make any distribution of their Property to their respective Equity Interest holdersthat so long as it is permitted by law, except (i) the Parent may declare and pay dividends or distributions with respect to its Equity Interests payable solely in additional shares of its Equity Interests (other than Disqualified Capital Stock); (ii) Subsidiaries of the Borrower may declare and pay dividends or distributions ratably with respect to their Equity Interests; (iiia) so long as both before no Event of Default shall have occurred and immediately after giving effect be continuing or would result therefrom, Administrative Borrower may make distributions to former or current employees, officers, consultants or directors of Administrative Borrower (or any spouses, ex-spouses, or estates of any of the foregoing) on account of redemptions of Equity Interests of Administrative Borrower held by such Restricted PaymentPersons (and for the avoidance of doubt, salary, wages, or other cash compensation for services provided paid to employees shall not be considered distributions hereunder); provided, that the aggregate amount of such redemptions (other than redemptions made in connection with tax payments) made by Administrative Borrower during the term of this Agreement plus the amount of Indebtedness outstanding under clause (l) of the definition of Permitted Indebtedness and any purchases under clause (e)(ii) of this Section, do not exceed $4,000,000 in the aggregate, (Ab) so long as no Event of Default shall have occurred and be continuing or would result therefrom, Administrative Borrower may make distributions to former employees, officers, consultants or directors of Administrative Borrower (or any spouses, ex-spouses, or estates of any of the foregoing), solely in the form of forgiveness of Indebtedness of such Persons owing to Administrative Borrower on account of repurchases of the Equity Interests of Administrative Borrower held by such Persons; provided, that such Indebtedness was incurred by such Persons solely to acquire Equity Interests of Administrative Borrower and the amount of Indebtedness forgiven does not exceed $1,000,000, (c) [Intentionally omitted.] (d) Subsidiaries of a Loan Party may make distributions to a Loan Party, (e) (i) repurchase Equity Interests from stockholders owning less than 1% of the outstanding equity securities for aggregate consideration of less than $1,000,000 in any twelve month period and $200,000 in each instance and (ii) make other purchases of Equity Interests in aggregate with distributions under clause (a) of this Section and Indebtedness outstanding under clause (l) of the definition of Permitted Indebtedness not greater than $4,000,000 per Fiscal Year, provided, that no Event of Default has occurred and is continuing or would result therefrom(both before and after giving effect thereto), at the time of the repurchase, (Bf) the Borrower has unused Commitments of not less than 20% of the total Commitments then in effect and (C) the ratio of Total Debt as of such time (including the effect of any Borrowings or other Debt used to make such Restricted Payment) to EBITDA for the four fiscal quarters ending on the last day of the fiscal quarter immediately preceding the date of determination for which financial statements are available is equal to or less than 3.00 to 1.00, the Borrower each Loan Party may declare and pay cash dividends to make Restricted Payments payable in the ParentQualified Equity Interests of such Loan Party, provided, that the issuance of such Qualified Equity Interests does not otherwise violate the terms of this Agreement and the Parent may declare and pay cash dividends to its Equity Interest holders; (iv) if no Default or Event of Default has occurred and is continuing at the time of making such Restricted Payments or would exist after giving effect theretoresult from the making of such Restricted Payments, the repurchase (g) so long as no Event of Default shall have occurred and be continuing or would result therefrom, a Borrower may distribute securities, or other acquisition of equity securitiespayments, limited partnership interest awards or units of the Parent not to exceed $2,500,000 grants in the aggregate since the Eighth Amendment Effective Datecash, from employeessecurities or otherwise pursuant to, former employees, directors or former directors of the Parent or its Subsidiaries (or permitted transferees of such employees, former employees, directors or former directors), pursuant to the terms of the agreements (including employment agreements) or plans (or amendments thereto) or other arrangements approved by the board of directors of the Parent under which such equity securities, limited partnership interest or units were granted, issued or sold; and (v) the Borrower may declare and pay dividends or distributions to the Parent in an amount equal to (A) Taxes then due and owing by the Parent and (B) reasonable and customary accounting, public company and other overhead and administrative costs and expenses (exclusive of any markup or premium), including reasonable and customary director’s fees and expenses, incurred by the Parent in the ordinary course of businessbusiness consistent with past practice, employment arrangements, stock options, equity compensation awards, and other benefit plans to employees, officers, consultants or directors, or (h) So long as no Event of Default has occurred and is continuing, any Borrower may make any redemption of Qualified Equity Interests with the cash proceeds received from a substantially concurrent issuance of new Qualified Equity Interests.

Restricted Payments. The Parent Borrower and the Parent Guarantors will shall not, and will shall not permit any of their respective Subsidiaries to, declare or make, or agree Subsidiary to pay or make, directly or indirectly, any Restricted PaymentPayments other than the following: (a) each Subsidiary may make Restricted Payments to the Parent Borrower and to any other Subsidiaries (and, return in the case of a Restricted Payment by a non-Wholly Owned Subsidiary, to the Borrowers or any capital such other Subsidiaries and to its stockholders or make any distribution each other owner of their Property Equity Interests of such Subsidiary ratably according to their respective relative ownership interests of the relevant class of Equity Interest holders, except Interests or as otherwise required by the applicable Organization Documents); (ib) the Parent Borrower and each of its Subsidiaries may declare and pay dividends or distributions with respect to its Equity Interests make Restricted Payments payable solely in additional shares the form of its Equity Interests of such Person (other than Disqualified Capital StockEquity Interests); (iic) Subsidiaries of the Borrower may declare and pay dividends or distributions ratably with respect to their Equity Interests; declaration (iii) so long as both before and immediately after giving effect to such Restricted Payment, (A) no Default or there is not Event of Default has occurred and is continuing under Section 7.01(a) or would result therefrom, (BSection 7.01(f)) the Borrower has unused Commitments or payment of not less than 20% of the total Commitments then in effect and (C) the ratio of Total Debt as of such time (including the effect of any Borrowings or other Debt used to make such Restricted Payment) to EBITDA for the four fiscal quarters ending cash dividends on the last day of the fiscal quarter immediately preceding the date of determination for which financial statements are available is equal to or less than 3.00 to 1.00, the Borrower may declare and pay cash dividends to the Parent, and the Parent may declare and pay cash dividends to its Borrower’s common Equity Interest holders; (iv) if no Default or Event of Default has occurred and is continuing or would exist after giving effect thereto, the repurchase or other acquisition of equity securities, limited partnership interest or units of the Parent Interests in an amount not to exceed $2,500,000 0.50 per share in any fiscal quarter plus the payment of pro rata dividends on shares subject to issuance pursuant to outstanding option; (d) Restricted Payments in respect of the repurchase of Equity Interests in the aggregate since Parent Borrower or any of its Subsidiaries that occur upon or in connection with the Eighth Amendment Effective Date, from employees, former employees, directors exercise of stock options or former directors warrants or similar rights if such Restricted Payments represent a portion of the exercise price of such options or warrants or similar rights or tax withholding obligations with respect thereto; (e) the Parent Borrower may make Restricted Payments pursuant to and in accordance with stock option plans or other equity or benefit plans for management or employees of the Parent or its Borrower and the Subsidiaries in effect from time to time; (or permitted transferees f) the Parent Borrower may repurchase Equity Interests upon the exercise of stock options, deferred stock units and restricted shares to the extent such Equity Interests represent a portion of the exercise price of such employeesstock options, former employeesdeferred stock units or restricted shares; (g) Restricted Payments (i) made in connection with the payment cash in lieu of fractional Equity Interests in connection with the exercise of warrants, directors options or other securities convertible into or exchangeable for shares of common stock in the Parent Borrower, any dividend, split or combination thereof or any Acquisition or other transaction permitted by the Loan Documents or (ii) to honor any conversion request by a holder of convertible Indebtedness and to make cash payments in lieu of fractional shares in connection therewith; (h) intercompany Restricted Payments (other than any Restricted Payment from the Parent Borrower) constituting or otherwise made in connection with or relating to any Permitted Reorganization reasonably necessary to effectuate such Permitted Reorganization; (i) repurchases of Equity Interests (i) deemed to occur on the exercise of options by the delivery of Equity Interests in satisfaction of the exercise price of such options or (ii) in consideration of withholding or similar Taxes payable by any future, present or former directors)employee, pursuant to the terms of the agreements (including employment agreements) or plans (or amendments thereto) or other arrangements approved by the board of directors of the Parent under which such equity securitiesdirector, limited partnership interest or units were granted, issued or sold; and (v) the Borrower may declare and pay dividends or distributions to the Parent in an amount equal to (A) Taxes then due and owing by the Parent and (B) reasonable and customary accounting, public company and other overhead and administrative costs and expenses (exclusive of any markup or premium), including reasonable and customary director’s fees and expenses, incurred by the Parent in the ordinary course of business.manager or

Restricted Payments. The Borrower and the Parent Guarantors will not, and will shall not permit any of their respective Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, make any Restricted PaymentPayments; ------------------- provided, return any capital to its stockholders or make any distribution of their Property to their respective Equity Interest holders, except (i) the Parent may declare and pay dividends or distributions with respect to its Equity Interests payable solely in additional shares of its Equity Interests (other than Disqualified Capital Stock); (ii) Subsidiaries of the Borrower may declare and pay dividends or distributions ratably with respect to their Equity Interests; (iii) that so long as both before and immediately after giving effect to such Restricted Payment, (A) no Default or Event of Default then exists, has -------- occurred and is continuing within the twelve (12) months immediately preceding such proposed Restricted Payment, or would result therefromfrom such Restricted Payment, Borrower may pay dividends on its common stock to BWEH if all of the following requirements are fulfilled: (Ba) the dividend is declared and paid no earlier than July 16, 2001; (b) Borrower has unused Commitments shall have sufficient net profits pursuant to Section 170 of the Delaware General Corporation Law with which to pay such dividend; (c) Borrower's Net Worth as of the end of the immediately preceding fiscal quarter was not less than 20% One Hundred Seven Million Dollars ($107,000,000) and will not be reduced to less than One Hundred Seven Million Dollars ($107,000,000) as a result of the total Commitments then in effect and (C) the ratio of Total Debt as of such time (including the effect of any Borrowings or other Debt used to make such Restricted Payment, and (d) the aggregate amount of all such Restricted Payments paid to EBITDA BWEH in any Fiscal Year shall not exceed (i) fifty percent (50%) of the amount of Consolidated Net Income for the four fiscal quarters Fiscal Year ending on the last day December 31, 2000 for such dividends paid during such Fiscal Year, and (ii) fifty percent (50%) of the fiscal quarter immediately preceding the date aggregate amount of determination Consolidated Net Income earned after December 31, 2000 for which financial statements are available is equal to or less than 3.00 to 1.00, the Borrower may declare such dividends paid after such Fiscal Year; and pay cash dividends to the Parent, and the Parent may declare and pay cash dividends to its Equity Interest holders; (iv) if provided further that so long as no Default or Event of Default has occurred and is continuing then exists, -------- ------- or would exist after giving effect theretoresult from such Restricted Payment, Borrower may pay dividends on its common stock to BWEH in an amount sufficient to enable BWEH to (x) pay the repurchase actual amount of BWEH's tax liability as the parent of a consolidated, combined, or other acquisition of equity securitiesunitary group, limited partnership interest or units of the Parent including Borrower, and (y) pay its overhead and operating expenses, not to exceed Two Hundred Fifty Thousand Dollars ($2,500,000 in the aggregate since the Eighth Amendment Effective Date, from employees, former employees, directors or former directors of the Parent or its Subsidiaries (or permitted transferees of such employees, former employees, directors or former directors), pursuant to the terms of the agreements (including employment agreements250,000) or plans (or amendments thereto) or other arrangements approved by the board of directors of the Parent under which such equity securities, limited partnership interest or units were granted, issued or sold; and (v) the Borrower may declare and pay dividends or distributions to the Parent in an amount equal to (A) Taxes then due and owing by the Parent and (B) reasonable and customary accounting, public company and other overhead and administrative costs and expenses (exclusive of any markup or premium), including reasonable and customary director’s fees and expenses, incurred by the Parent in the ordinary course of businessper Fiscal Year.

Restricted Payments. The Borrower and Neither the Parent Guarantors will not, and will not permit Company nor any of their respective Subsidiaries to, declare or make, or agree to pay or makeRestricted Subsidiary will, directly or indirectly, make or declare any Restricted Payment, return any capital to its stockholders or make any distribution of their Property to their respective Equity Interest holders, except (i) the Parent may declare and pay dividends or distributions with respect to its Equity Interests payable solely in additional shares of its Equity Interests Payment (other than Disqualified Capital Stock); any Restricted Payment payable (iiand paid) Subsidiaries in common stock of the Borrower may declare and pay dividends or distributions ratably with respect to their Equity Interests; (iiiCompany) at any time, except that so long as both before no Default shall have occurred and immediately after giving effect to be continuing at the time such Restricted Payment is made or would result from the making or declaration of such Restricted Payment, the Company may (Ai) no Default or Event of Default has occurred and make Restricted Payments at any time when the Cash Flow Ratio is continuing or would result therefromless than 5.50 to 1, (Bii) make Restricted Payments in respect of preferred stock of the Company to the extent made with Refunding Proceeds, (iii) purchase for cash, or pay dividends on the Company's common stock in amounts to be applied by Parent Corp. solely for the purchase for cash of, capital stock of the Company or Parent Corp. from any employee of the Company other than Xxxxx, so long as the amount of such purchase, together with the amount of all other purchases and payments of dividends by the Company contemplated by this Section 9.17(iii) on or after the Effective Date, does not exceed $50,000,000, (iv) make any Restricted Payment in respect of the preferred stock of the Company to the extent payable in New Preferred Stock of the Company, (v) pay any dividends or other distributions in respect of any preferred stock of the Company, (vi) pay any dividends or other distributions on any common stock of the Company, provided that the aggregate amount of all such dividends or other distributions made pursuant to this clause (vi) shall not exceed the sum of (x) $100,000,000 and (y) the Borrower has unused Commitments aggregate amount of all Net Cash Proceeds from New Common Stock (other than any such Net Cash Proceeds previously applied as Refunding Proceeds) and (vii) make Restricted Payments in cash to the extent made to redeem not less more than 2033 1/3% of the total Commitments then in effect and Company's Series H Preferred Stock and/or not more than 50%of the Company's Series M Preferred Stock, provided that the aggregate amount of all such Restricted Payments made pursuant to this clause (Cvii) shall not exceed 110% of the ratio of Total Debt as aggregate accreted amount of such time (including the effect of any Borrowings or other Debt used to make such Restricted Payment) to EBITDA for the four fiscal quarters ending on the last day of the fiscal quarter immediately preceding the date of determination for which financial statements are available is equal to or less than 3.00 to 1.00, the Borrower may declare and pay cash dividends to the Parent, and the Parent may declare and pay cash dividends to its Equity Interest holders; (iv) if no Default or Event of Default has occurred and is continuing or would exist after giving effect thereto, the repurchase or other acquisition of equity securities, limited partnership interest or units of the Parent not to exceed $2,500,000 in the aggregate since the Eighth Amendment Effective Date, from employees, former employees, directors or former directors of the Parent or its Subsidiaries (or permitted transferees percentage of such employees, former employees, directors or former directors), pursuant to Series H and Series M Preferred Stock determined in accordance with the terms of the agreements (including employment agreements) or plans (or amendments thereto) or other arrangements approved by the board of directors of the Parent under which such equity securities, limited partnership interest or units were granted, issued or sold; and (v) the Borrower may declare and pay dividends or distributions to the Parent in an amount equal to (A) Taxes then due and owing by the Parent and (B) reasonable and customary accounting, public company and other overhead and administrative costs and expenses (exclusive of any markup or premium), including reasonable and customary director’s fees and expenses, incurred by the Parent in the ordinary course of businesscalculations set forth on Schedule 9.17 hereto.

Restricted Payments. The Borrower and the Parent Guarantors will not, and nor will not it permit any of their respective Subsidiaries Restricted Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, declare, order, make or set apart any sum for or pay any Restricted Payment, return except (a) to make dividends payable solely in the same class of Equity Interests or Hybrid Equity Securities of such Person, (b) to make dividends or other distributions payable to any capital Loan Party (directly or indirectly through Subsidiaries, and, in the case of dividends or other distributions paid by Subsidiaries, ratably to other Persons that own the applicable class of Equity Interests in such Subsidiary), (c) to make dividends to or repurchases from the Borrower or the holders of ownership interests of such Restricted Subsidiary the proceeds of which shall be used to pay taxes that are then due and payable and which relate to the business of the Borrower and its Restricted Subsidiaries, (d) in the case of a Receivables Financing SPC, to make Restricted Payments to its stockholders owners to the extent of net income or other assets available therefor under applicable law, (e) Subsidiaries that are not Loan Parties may make Restricted Payments to other Subsidiaries that are not Loan Parties, (f) the Borrower may redeem or repurchase Equity Interests or other stock-based awards under any distribution stock option plan, incentive plan, compensation plan or other benefit plan from officers, employees and directors of any Loan Party or any of its Subsidiaries (or their Property estates, spouses or former spouses) upon the death, permanent disability, retirement or termination of employment of any such Person or otherwise, so long as (i) no Default has occurred and is continuing or would immediately result therefrom and (ii) the aggregate amount of cash used to their respective effect Restricted Payments pursuant to this clause (f) in any fiscal year of Borrower does not exceed $5,000,000, (g) repurchases of Equity Interest holdersInterests or other stock-based awards under any stock option plan, except incentive plan, compensation plan or other benefit plan that occur or are deemed to occur upon the exercise of any such awards to the extent representing a portion of the exercise price of such award; (h) to the extent constituting Restricted Payments, the Borrower and its Subsidiaries may enter into and consummate transactions expressly permitted by Section 6.04; (i) the Parent Borrower may declare and pay dividends or distributions with respect to its Equity Interests payable solely in additional purchase fractional shares of its Equity Interests arising out of stock dividends, splits, combinations or business combinations (provided such transaction shall not be for the purpose of evading this limitation) and (j) the Borrower and its Restricted Subsidiaries may make other than Disqualified Capital Stock); Restricted Payments so long as at the time of the making thereof and after giving effect thereto on a Pro Forma Basis, (i) no Default shall have occurred and/or be continuing or be directly or indirectly caused as a result thereof and (ii) Subsidiaries of the Borrower is in compliance with the financial covenants set forth in Section 6.11; provided that if the Total Net Leverage Ratio (calculated on a Pro Forma Basis after giving effect to such Restricted Payment) would be greater than 3.25 to 1.00, the Borrower may declare and pay dividends or distributions ratably with respect only make Restricted Payments pursuant to their Equity Interests; this clause (iiij) so long as both before and immediately if, after giving effect to such Restricted Payment, the aggregate amount of all such Restricted Payments made pursuant to this clause (Aj) no Default or Event of Default has occurred and is continuing or would result therefrom, (B) the Borrower has unused Commitments of does not less than 20% exceed $35,000,000 during any fiscal year of the total Commitments then in effect and (C) the ratio of Total Debt as of such time (including the effect of any Borrowings or other Debt used to make such Restricted Payment) to EBITDA for the four fiscal quarters ending on the last day of the fiscal quarter immediately preceding the date of determination for which financial statements are available is equal to or less than 3.00 to 1.00, the Borrower may declare and pay cash dividends to the Parent, and the Parent may declare and pay cash dividends to its Equity Interest holders; (iv) if no Default or Event of Default has occurred and is continuing or would exist after giving effect thereto, the repurchase or other acquisition of equity securities, limited partnership interest or units of the Parent not to exceed $2,500,000 in the aggregate since the Eighth Amendment Effective Date, from employees, former employees, directors or former directors of the Parent or its Subsidiaries (or permitted transferees of such employees, former employees, directors or former directors), pursuant to the terms of the agreements (including employment agreements) or plans (or amendments thereto) or other arrangements approved by the board of directors of the Parent under which such equity securities, limited partnership interest or units were granted, issued or sold; and (v) the Borrower may declare and pay dividends or distributions to the Parent in an amount equal to (A) Taxes then due and owing by the Parent and (B) reasonable and customary accounting, public company and other overhead and administrative costs and expenses (exclusive of any markup or premium), including reasonable and customary director’s fees and expenses, incurred by the Parent in the ordinary course of businessBorrower.

Restricted Payments. The Borrower and the Parent Guarantors will Company shall not, and will shall not suffer or permit any of their respective Subsidiaries Subsidiary to, declare or makemake any dividend payment or other distribution of assets, properties, cash, rights, obligations or securities on account of any shares of any class of its capital stock, or agree purchase, redeem or otherwise acquire for value any shares of its capital stock or any warrants, rights or options to pay acquire such shares, now or makehereafter outstanding, directly or indirectlypurchase, redeem, otherwise acquire for value, or prepay the Convertible Debt (whether voluntarily or mandatorily); except that (a) any Restricted Payment, return any capital Wholly-Owned Subsidiary may declare and make dividend payments or other distributions to the Company or to its stockholders immediate parent Subsidiary of the Company, (b) any Subsidiary that is not a Wholly-Owned Subsidiary may declare and make pro-rata dividend payments or other pro-rata distributions, (c) the Company or any of its Subsidiaries may make any distribution repurchase or redemption of their Property to their respective Equity Interest holdersits capital stock or any repurchase, except redemption or prepayment of the Convertible Debt, provided that, in the case of this clause (c), (i) the Parent may declare and pay dividends or distributions Company’s Leverage Ratio for the twelve month period most recently ended with respect to its Equity Interests payable solely in additional shares of its Equity Interests which the Company has delivered financial statements pursuant to Section 7.01 is less than 2.00 to 1.00 calculated on a pro forma basis (other than Disqualified Capital Stock); (ii) Subsidiaries of the Borrower may declare and pay dividends or distributions ratably with respect to their Equity Interests; (iii) so long as both before and immediately calculated after giving effect to any such Restricted Paymentrepurchase, redemption, prepayment and any Acquisitions consummated during such period and determined in the manner provided in clause (A3) no Default or Event of Default has occurred and is continuing or would result therefrom, (B) the Borrower has unused Commitments of not less than 20% of the total Commitments then in effect and definition of Permitted Acquisitions) or (Cii) the ratio of Total Debt as of if such time (including the effect of any Borrowings Leverage Ratio is greater than or other Debt used to make such Restricted Payment) to EBITDA for the four fiscal quarters ending on the last day of the fiscal quarter immediately preceding the date of determination for which financial statements are available is equal to or less than 3.00 2.00 to 1.00, the Borrower aggregate consideration paid and other payments made by the Company and its Subsidiaries during such period in connection with all such repurchases, redemptions and prepayments, including such proposed repurchase, redemption or prepayment, plus the aggregate Cash Consideration paid, incurred or assumed by the Company and its Subsidiaries with respect to all Acquisitions consummated during such period, shall not exceed $5,000,000, (d) the Company may declare and pay cash dividends the settlement amount with respect to each $1,000 aggregate principal amount of Convertible Debt converted into shares of the ParentCompany’s common stock (i) in cash, which shall not exceed the lesser of $1,000 and the Parent may declare and pay cash dividends to its Equity Interest holders; (iv) if no Default or Event of Default has occurred and is continuing or would exist after giving effect thereto, the repurchase or other acquisition of equity securities, limited partnership interest or units of the Parent not to exceed $2,500,000 in the aggregate since the Eighth Amendment Effective Date, from employees, former employees, directors or former directors of the Parent or its Subsidiaries (or permitted transferees conversion value of such employees, former employees, directors or former directors), Convertible Debt pursuant to the terms and conditions of the agreements Indenture and (including employment agreementsii) or plans (or amendments thereto) or other arrangements approved by if the board conversion value of directors such Convertible Debt exceeds $1,000, in the number of shares of the Parent under which such equity securitiesCompany’s common stock as calculated pursuant to the terms and conditions of the Indenture, limited partnership interest or units were granted(e) with respect to the conversion of the Convertible Debt into shares of the Company’s common stock, issued or sold; the Company may pay the cash value of fractional shares of the Company’s common stock pursuant to the terms and conditions of the Indenture and (vf) the Borrower Company may declare and pay dividends or distributions to repurchase its capital stock with the Parent in an amount equal to (A) Taxes then due and owing by proceeds of the Parent and (B) reasonable and customary accounting, public company and other overhead and administrative costs and expenses (exclusive of any markup or premium), including reasonable and customary director’s fees and expenses, incurred by the Parent in the ordinary course of businessConvertible Debt.”

Restricted Payments. The Borrower and the Parent Guarantors will not, and nor will not it permit any of their respective Subsidiaries the Subsidiary Guarantors to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, return any capital to its stockholders or make any distribution of their Property to their respective Equity Interest holders, except (i) that the Parent Borrower may declare and pay pay: dividends or distributions with respect to its Equity Interests the capital stock of the Borrower payable solely in additional shares of its Equity Interests the Borrower’s common stock; dividends and distributions in either case in cash or other property (other than Disqualified Capital Stock); excluding for this purpose the Borrower’s common stock) in any taxable year of the Borrower in amounts not to exceed the amount that is determined in good faith by the Borrower to be required to (i) maintain the status of the Borrower as a RIC, and (ii) Subsidiaries avoid federal excise taxes for such taxable year imposed by Section 4982 of the Code; dividends and distributions in each case in cash or other property (excluding for this purpose the Borrower’s common stock) in addition to the dividends and distributions permitted under the foregoing clauses (a) and (b), so long as on the date of such Restricted Payment and after giving effect thereto: no Default shall have occurred and be continuing or would result therefrom; and the aggregate amount of Restricted Payments made during any taxable year of the Borrower may declare after the date hereof under this clause (c) shall not exceed the difference of (x) an amount equal to 10% of the taxable income of the Borrower for such taxable year determined under section 852(b)(2) of the Code, but without regard to subparagraphs (A), (B) or (D) thereof, minus (y) the amount, if any, by which dividends and pay dividends distributions made during such taxable year pursuant to the foregoing clause (b) (whether in respect of such taxable year or distributions ratably with respect to their Equity Interests; the previous taxable year) based upon the Borrower’s estimate of taxable income exceeded the actual amounts specified in subclauses (iiii) and (ii) of such foregoing clause (b) for such taxable year. other Restricted Payments so long as both before (i) on the date of such other Restricted Payment and immediately after giving effect thereto (x) the Covered Debt Amount does not exceed 90% of the Borrowing Base and (y) no Default shall have occurred and be continuing or would result therefrom and (ii) on the date of such other Restricted Payment the Borrower delivers to the Administrative Agent and each Lender a Borrowing Base Certificate as at such date demonstrating compliance with subclause (x) after giving effect to such Restricted Payment. For purposes of preparing such Borrowing Base Certificate, (A) no Default or Event the fair market value of Default has occurred Quoted Investments shall be the most recent quotation available for such Quoted Investment and is continuing or would result therefrom, (B) the fair market value of Unquoted Investments shall be the Value set forth in the Borrowing Base Certificate most recently delivered by the Borrower to the Administrative Agent and the Lenders pursuant to Section 5.01(d); provided that the Borrower shall reduce the Value of any Unquoted Investment to the extent necessary to take into account any events of which the Borrower has unused Commitments of not less than 20% of knowledge that adversely affect the total Commitments then in effect and (C) the ratio of Total Debt as value of such time (including the effect of any Borrowings or other Debt used to make such Restricted Payment) to EBITDA for the four fiscal quarters ending on the last day of the fiscal quarter immediately preceding the date of determination for which financial statements are available is equal to or less than 3.00 to 1.00, the Borrower may declare and pay cash dividends to the Parent, and the Parent may declare and pay cash dividends to its Equity Interest holders; (iv) if no Default or Event of Default has occurred and is continuing or would exist after giving effect thereto, the repurchase or other acquisition of equity securities, limited partnership interest or units of the Parent not to exceed $2,500,000 in the aggregate since the Eighth Amendment Effective Date, from employees, former employees, directors or former directors of the Parent or its Subsidiaries (or permitted transferees of such employees, former employees, directors or former directors), pursuant to the terms of the agreements (including employment agreements) or plans (or amendments thereto) or other arrangements approved by the board of directors of the Parent under which such equity securities, limited partnership interest or units were granted, issued or sold; and (v) the Borrower may declare and pay dividends or distributions to the Parent in an amount equal to (A) Taxes then due and owing by the Parent and (B) reasonable and customary accounting, public company and other overhead and administrative costs and expenses (exclusive of any markup or premium), including reasonable and customary director’s fees and expenses, incurred by the Parent in the ordinary course of businessPortfolio Investment.

Restricted Payments. The Borrower and the Parent Guarantors will not, and will not permit any of their respective Subsidiaries to, declare or make, or agree to pay Declare or make, directly or indirectly, any Restricted Payment, return any capital except: (a) the Borrowers and each Restricted Subsidiary may make Restricted Payments to its stockholders or make any distribution the Parents, the Borrowers and to Restricted Subsidiaries (and, in the case of a Restricted Payment by a non-Wholly-Owned Restricted Subsidiary, to each owner of Equity Interests of such Restricted Subsidiary based on their Property to their respective relative ownership interests of the relevant class of Equity Interest holders, except Interests); (b) (i) the Parent Parents may declare and pay dividends (or distributions with respect may make Restricted Payments to its Equity Interests payable solely permit any direct or indirect parent thereof to) redeem in additional shares whole or in part any of its Equity Interests for another class of its (or such parent’s) Equity Interests or rights to acquire its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests, provided that any terms and provisions material to the interests of the Lenders, when taken as a whole, contained in such other than Disqualified Capital Stockclass of Equity Interests are at least as advantageous to the Lenders as those contained in the Equity Interests redeemed thereby and (ii) the Parents may declare and make dividend payments or other distributions payable solely in Qualified Equity Interests (to the extent not utilized in connection with any other transactions permitted pursuant to Section 7.02, Section 7.03, Section 7.06 or Section 7.08 (or to build the Available Equity Amount or Excluded Contribution Amount)); (iic) Subsidiaries of Restricted Payments made on or after the Borrower may declare Closing Date for fees and pay dividends or distributions ratably expenses in connection with respect to their Equity Intereststhe Transactions; (iii) so long as both before and immediately after giving effect to such Restricted Payment, (A) no Default or Event of Default has occurred and is continuing or would result therefrom, (B) the Borrower has unused Commitments of not less than 20% of the total Commitments then in effect and (C) the ratio of Total Debt as of such time (including the effect of any Borrowings or other Debt used to make such Restricted Paymentd) to EBITDA for the four fiscal quarters ending on the last day of the fiscal quarter immediately preceding the date of determination for which financial statements are available is equal to or less than 3.00 to 1.00extent constituting Restricted Payments, the Borrower may declare and pay cash dividends to Parents, the Parent, Borrowers and the Parent Restricted Subsidiaries may declare enter into and pay cash dividends to its Equity Interest holdersconsummate transactions expressly permitted by any provision of Section 7.02, Section 7.04 or Section 7.07; (ive) if no Default or Event repurchases of Default has occurred and is continuing or would exist after giving effect thereto, the repurchase or other acquisition of equity securities, limited partnership interest or units of the Parent not to exceed $2,500,000 in the aggregate since the Eighth Amendment Effective Date, from employees, former employees, directors or former directors of the Parent or its Subsidiaries (or permitted transferees of such employees, former employees, directors or former directors), pursuant to the terms of the agreements (including employment agreements) or plans (or amendments thereto) or other arrangements approved by the board of directors of the Parent under which such equity securities, limited partnership interest or units were granted, issued or sold; and (v) the Borrower may declare and pay dividends or distributions to the Parent in an amount equal to (A) Taxes then due and owing by the Parent and (B) reasonable and customary accounting, public company and other overhead and administrative costs and expenses (exclusive of any markup or premium), including reasonable and customary director’s fees and expenses, incurred by the Parent Equity Interests in the ordinary course of business.business in the Parents (or any direct or indirect parent thereof), the Borrowers or any Restricted Subsidiary deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants; 145

Restricted Payments. The Borrower and the Parent Guarantors will REIT shall not, and will not permit any of their respective Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, and shall not permit any member of the Consolidated Group, directly or indirectly, to pay any Restricted Payment, return any capital to its stockholders or make any distribution of their Property to their respective Equity Interest holders, except (ia) the Parent REIT may declare and pay dividends or distributions with make the Restricted Payments in respect to its Equity Interests payable solely in additional shares of its Equity Interests to the extent not prohibited below in this Section, (b) the Borrower and each direct Subsidiary of the REIT may make Restricted Payments to the REIT in order for the REIT to make payments that are not prohibited below in this Section, (c) each Subsidiary Guarantor or 163 Entity may make Restricted Payments (directly or indirectly) to the Borrower, (d) the REIT may declare and make dividend payments or other Restricted Payments payable solely in the capital stock of the REIT so long as no Change of Control shall result therefrom, (e) REIT, Borrower and each Subsidiary may make cash payments in lieu of the issuance of fractional shares in connection with the exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests of REIT, Borrower or any Subsidiary, (f) REIT, Borrower and each Subsidiary may make Restricted Payments in connection with the implementation of or pursuant to any retirement, health, stock option and other benefit plans, bonus plans, performance-based incentive plans, and other similar forms of compensation for the benefit of the directors, officers and employees of REIT, Borrower and the Subsidiaries, provided that in no event shall such Restricted Payments made in connection with any of the foregoing exceed $5,000,000 in the aggregate for any given fiscal year for any period that there are less than five (5) Borrowing Base Properties, (g) REIT may, and Borrower may make dividends or distributions to REIT to allow REIT to, make payments in connection with dividend reinvestment programs and share repurchase programs, provided that in no event shall such Restricted Payments made in connection with any of this clause (g) exceed $65,000,000 in the aggregate for any fiscal year and provided that no such dividends or distributions will be permitted following the occurrence and during the continuance of any Default or Event of Default hereunder, (h) REIT, Borrower or any Credit Party may declare and make any Restricted Payment of assets other than Disqualified Capital Stock); Borrowing Base Properties (or the Equity Interest of any Subsidiary which is not a 163 Entity and the sole assets of which are not Borrowing Base Properties) provided that (i) such assets are acquired in connection with a Fundamental Change, (ii) Subsidiaries such Restricted Payment shall be made within one year of the Borrower may declare and pay dividends or distributions ratably with respect to their Equity Interests; such Fundamental Change, (iii) so long as both before immediately prior thereto, and immediately thereafter and after giving effect thereto, no Default or Event of Default has occurred or would result therefrom and (iv) Borrower and REIT will remain in pro forma compliance with the covenants set forth in this Section 6.01 after giving effect to such Restricted Payment, (Ai) Borrower and REIT may purchase, redeem or otherwise acquire Equity Interests issued by it solely with the proceeds received from the substantially concurrent issue of new shares of its common Equity Interests or other Equity Interests provided that such purchase, redemption or acquisition is limited to the amount of such proceeds so received and (j) REIT or Borrower may, and Borrower may make dividends or distributions to REIT, to allow REIT do make, any (i) cash settlement payments and (ii) any cash interest payments, in each case in accordance with the terms of any series of convertible Indebtedness of REIT or the Borrower and issued by REIT or Borrower and otherwise permitted hereunder. Notwithstanding the foregoing, the REIT may, for any given fiscal quarter or consecutive fiscal quarters, make Restricted Payments in cash to the holders of its Equity Interests during such fiscal quarter or quarters in an amount that would not exceed the greater of (1) so long as no Default or Event of Default has occurred and is continuing exists or would result therefrom, the FFO Distribution Allowance for such quarter or quarters or (B2) the Borrower has unused Commitments of not less than 20% of the total Commitments then in effect and (C) the ratio of Total Debt so long as of such time (including the effect of any Borrowings or other Debt used to make such Restricted Payment) to EBITDA for the four fiscal quarters ending on the last day of the fiscal quarter immediately preceding the date of determination for which financial statements are available is equal to or less than 3.00 to 1.00, the Borrower may declare and pay cash dividends to the Parent, and the Parent may declare and pay cash dividends to its Equity Interest holders; (iv) if no Default or Event of Default has occurred as described in Section 7.01(a), 7.01(f), and is continuing 7.01(g) shall exist or would exist after giving effect theretoresult therefrom and neither the Revolving Loans nor the Term Loans shall have become due and payable (whether upon stated maturity or acceleration or otherwise), the repurchase or other acquisition of equity securities, limited partnership interest or units of amount necessary for the Parent not REIT to exceed $2,500,000 in the aggregate since the Eighth Amendment Effective Date, from employees, former employees, directors or former directors of the Parent or its Subsidiaries (or permitted transferees of such employees, former employees, directors or former directors), pursuant to the terms of the agreements (including employment agreements) or plans (or amendments thereto) or other arrangements approved by the board of directors of the Parent under which such equity securities, limited partnership interest or units were granted, issued or sold; and (v) the Borrower may declare and pay dividends or distributions to the Parent in an amount equal to (A) Taxes then due and owing by the Parent and (B) reasonable and customary accounting, public company and other overhead and administrative costs and expenses (exclusive of any markup or premium), including reasonable and customary director’s fees and expenses, incurred by the Parent in the ordinary course of business.maintain REIT Status. 108

Restricted Payments. The Borrower and the Parent Guarantors will shall not, and will not nor shall it permit any of their respective its Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, make any Restricted Payment, return any capital to its stockholders or make any distribution of their Property to their respective Equity Interest holders, Payments except (i) the Parent may declare and pay dividends or distributions with respect to its Equity Interests payable solely in additional shares of its Equity Interests (other than Disqualified Capital Stock); (ii) Subsidiaries of the Borrower may declare and pay dividends or distributions ratably with respect to their Equity Interests; (iii) so long as both before and immediately after giving effect to such Restricted Payment, (A) that if no Default or Event of Default has occurred and is continuing exists or would result therefrom, (B) the Borrower has unused Commitments of not less than 20% of the total Commitments then in effect and (C) the ratio of Total Debt as of such time (including the effect of any Borrowings or other Debt used to make such Restricted Payment) to EBITDA for the four fiscal quarters ending on the last day of the fiscal quarter immediately preceding the date of determination for which financial statements are available is equal to or less than 3.00 to 1.00, the Borrower may declare and (a) pay cash dividends on Equity Interests issued to refinance the Senior Unsecured Debt so long as such Equity Interests are on terms (including with respect to dividends) acceptable to the ParentRequired Lenders in their sole discretion, and (b) redeem preferred Equity Interests with the Parent may declare and proceeds of or in connection with a contemporaneous issuance of Equity Interests; provided that, as to any preferred Equity Interests issued to effect such redemption, such preferred Equity Interests are permitted by Section 6.04(c), (c) pay non-cash dividends in the form of common Equity Interests of the Borrower, (d) pay non-cash dividends on preferred Equity Interests of the Borrower in the form of additional preferred Equity Interests of the Borrower so long as such additional preferred Equity Interests are permitted by Section 6.04(c), (e) pay cash dividends to its on, or make any other cash payments (including redemptions) with respect to, preferred Equity Interest holders; (iv) if no Default or Event of Default has occurred and is continuing or would exist after giving effect thereto, the repurchase or other acquisition of equity securities, limited partnership interest or units Interests of the Parent Borrower; provided that (i) such preferred Equity Interests are permitted under Section 6.04(c) and (ii) the aggregate amount of all such cash dividends and other cash payments made with respect to all preferred Equity Interests of the Borrower pursuant to this clause (e) does not cause the Senior Unsecured Debt and Preferred Equity Charges paid or payable by the Borrower or any Subsidiary during the current calendar quarter to exceed $2,500,000 4,000,000 in the aggregate since the Eighth Amendment Effective Date, from employees, former employees, directors or former directors of the Parent or its Subsidiaries (or permitted transferees of such employees, former employees, directors or former directors), pursuant to the terms of the agreements (including employment agreements) or plans (or amendments thereto) or other arrangements approved by the board of directors of the Parent under which such equity securities, limited partnership interest or units were granted, issued or soldaggregate; and (vf) repurchases or redemptions of shares of common Equity Interests of the Borrower may declare from any holder of less than 100 shares of such common Equity Interests, provided that the aggregate amount paid for all such repurchases and pay dividends or distributions redemptions made pursuant to the Parent in an amount equal to this clause (Af) Taxes then due and owing by the Parent and (B) reasonable and customary accounting, public company and other overhead and administrative costs and expenses (exclusive of any markup or premium), including reasonable and customary director’s fees and expenses, incurred by the Parent in the ordinary course of businessshall not exceed $1,000,000.

Restricted Payments. The Borrower and the Parent Guarantors will not, and will not permit any of their respective Subsidiaries to, declare Declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, return any capital to its stockholders or make any distribution of their Property to their respective Equity Interest holders, except (ia) the Parent any Loan Party may declare and pay dividends or distributions with respect to its Equity Interests payable solely in additional shares of its common stock, (b) any Loan Party may make Restricted Payments pursuant to and in accordance with stock option plans or other benefit plans for management or employees of the Loan Party and its Subsidiaries, (c) any Loan Party may make repurchases of Equity Interests deemed to occur (other than Disqualified Capital Stock); i) upon exercise of stock options, stock appreciation rights or warrants if such Equity Interests represent a portion of the exercise price of such options, stock appreciation rights or warrants or (ii) Subsidiaries for purposes of satisfying any required tax withholding obligation upon the exercise or vesting of a grant or award that was granted to an employee or director of such Loan Party, provided, that, the aggregate amount of all such payments under clauses (i) and (ii) shall not exceed $1,000,000, (d) any Loan Party, and each Subsidiary of any Loan Party, may make purchase, redeem or otherwise acquire Equity Interests issued by it pursuant to Chico’s FAS, Inc. stock buyback program as set forth in the Form 10-K of Lead Borrower filed with the SEC for its Fiscal Year ending February 3, 2018 or any future stock buyback program approved by Lead Borrower’s board of directors, so long as, in each case, as of the date of any payment in respect of any such purchase, redemption or other acquisition, and after giving effect thereto, each of the Payment Conditions is satisfied, (e) Lead Borrower may declare and pay dividends or distributions ratably with respect to their Equity Interests; (iii) in cash so long as, in each case, as both before of the date of the declaration of such dividends, and immediately after giving effect to such Restricted Paymentdeclaration, (A) no Default or Event of Default has occurred and is continuing or would result therefrom, (B) the Borrower has unused Commitments of not less than 20% each of the total Commitments then in effect and Payment Conditions is satisfied, provided, that, either (Ci) the ratio of Total Debt as of such time dividends are paid within sixty (including the effect of any Borrowings or other Debt used to make such Restricted Payment60) to EBITDA for the four fiscal quarters ending on the last day of the fiscal quarter immediately preceding days after the date of determination for which financial statements are available is equal to the declaration thereof or less than 3.00 to 1.00, (ii) as of the Borrower may declare and pay cash dividends to date of the Parentpayment of such dividends, and the Parent may declare and pay cash dividends to its Equity Interest holders; (iv) if no Default or Event of Default has occurred and is continuing or would exist after giving effect thereto, the repurchase or other acquisition of equity securities, limited partnership interest or units each of the Parent not to exceed $2,500,000 in the aggregate since the Eighth Amendment Effective DatePayment Conditions is satisfied, from employees, former employees, directors or former directors of the Parent or its Subsidiaries (or permitted transferees of such employees, former employees, directors or former directors), pursuant to the terms of the agreements (including employment agreements) or plans (or amendments thereto) or other arrangements approved by the board of directors of the Parent under which such equity securities, limited partnership interest or units were granted, issued or sold; and (v) the Borrower may declare and pay dividends or distributions to the Parent in an amount equal to (A) Taxes then due and owing by the Parent and (B) reasonable and customary accounting, public company and other overhead and administrative costs and expenses (exclusive of any markup or premium), including reasonable and customary director’s fees and expenses, incurred by the Parent in the ordinary course of business.-125- 6245414.1

Restricted Payments. The Borrower and Declare or pay any dividend (other than dividends payable solely in common stock of the Parent Guarantors will notPerson making such dividend) on, and will not permit any of their respective Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, return any capital to its stockholders or make any distribution of their Property to their respective Equity Interest holderspayment on account of, except (i) or set apart assets for a sinking or other analogous fund for, the Parent may declare and pay dividends purchase, redemption, defeasance, retirement or distributions with respect to its Equity Interests payable solely in additional shares of its Equity Interests other acquisition of, any Capital Stock (other than Disqualified Capital Stock) of any Group Member, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of any Group Member (collectively, “Restricted Payments”), except that: (a) any Restricted Subsidiary may make Restricted Payments ratably to its equity holders (or if not ratably, on a basis more favorable to the Borrower and the other Loan Parties); (iib) Subsidiaries the Borrower may purchase or redeem its common stock or common stock options from present, future or former directors, officers or employees of any Group Member upon the death, disability or termination of employment of such director, officer or employee, provided, that the aggregate amount of payments under this Section 7.6(b) after the Closing Date (net of any proceeds received by the Borrower after the Closing Date in connection with resales of any common stock or common stock options so purchased) shall not exceed $5,000,000 in any fiscal year (with unused amounts in any period permitted to be carried over to succeeding periods until used in full; provided that the total amount of such purchases or redemptions under this Section 7.6(b) in any fiscal year shall not exceed $10,000,000); (c) the Borrower may declare and pay dividends or distributions ratably with respect to their Equity Interestsits Capital Stock payable solely in shares of Qualified Capital Stock; (iiid) the Borrower may make cash payments in lieu of the issuance of fractional shares representing insignificant interests in the Borrower in connection with the exercise of warrants, options or other securities convertible into or exchangeable for Capital Stock in the Borrower; (e) the Borrower may acquire its Capital Stock upon the exercise of stock options for such Capital Stock of the Borrower if such Capital Stock represents a portion of the exercise price of such stock options or in connection with tax withholding obligations arising in connection with the exercise of options by, or the vesting of restricted Capital Stock held by, any current or former director, officer or employee of any Group Member; (f) the Borrower may convert or exchange any of its Capital Stock for or into Qualified Capital Stock; (g) so long as both before no Event of Default shall have occurred and be continuing or would result therefrom, the Borrower may on any date make Restricted Payments in an amount equal to the Available Amount on such date; provided that at the time of the making of any such Restricted Payments and immediately after giving effect to such Restricted PaymentPayments, the Consolidated Leverage Ratio for the Applicable Reference Period, calculated on a Pro Forma Basis, is not in excess of 3.75 to 1.00; (Ah) so long as no Default or Event of Default has shall have occurred and is be continuing or would result therefrom, (B) the Borrower has unused Commitments of not less than 20% of the total Commitments then in effect and (C) the ratio of Total Debt as of such time (including the effect of any Borrowings or other Debt used to make such Restricted Payment) to EBITDA for the four fiscal quarters ending on the last day of the fiscal quarter immediately preceding the date of determination for which financial statements are available is equal to or less than 3.00 to 1.00, the Borrower may declare and pay cash dividends to the Parent, and the Parent may declare and pay cash dividends to its Equity Interest holders; (iv) if no Default or Event of Default has occurred and is continuing or would exist after giving effect thereto, the repurchase or other acquisition of equity securities, limited partnership interest or units of the Parent not to exceed $2,500,000 in the aggregate since the Eighth Amendment Effective Date, from employees, former employees, directors or former directors of the Parent or its Subsidiaries (or permitted transferees of such employees, former employees, directors or former directors), pursuant to the terms of the agreements (including employment agreements) or plans (or amendments thereto) or other arrangements approved by the board of directors of the Parent under which such equity securities, limited partnership interest or units were granted, issued or sold; and (v) the Borrower may declare and pay dividends or distributions to the Parent on any date make Restricted Payments in an amount equal to (A) Taxes then due and owing by the Parent and (B) reasonable and customary accounting, public company and other overhead and administrative costs and expenses (exclusive of any markup or premium), including reasonable and customary director’s fees and expenses, incurred by the Parent in the ordinary course of business.aggregate 102 0000-0000-0000 v.2

Restricted Payments. The Borrower and the Parent Guarantors will not, and will not permit any of their respective Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, No Credit Party shall make any Restricted Payment, return except: (a) dividends and distributions by any capital Credit Party to its stockholders or make any distribution of their Property to their respective Equity Interest holders, except (i) the Parent may declare and pay dividends or distributions with respect to its Equity Interests payable solely in additional shares of its Equity Interests other Credit Party (other than Disqualified Capital StockRand, Rand Finance or Parent); (iib) Subsidiaries of the Borrower may declare and pay dividends or distributions ratably with respect to their Equity Interestsemployee loans permitted under Section 6.4(b); (iiic) so long as both before payments by a Credit Party to another Credit Party of principal and immediately after giving effect to such Restricted Paymentinterest of Permitted Intercompany Indebtedness issued in accordance with Section 6.3 (provided that, (A) no upon the occurrence of a Default or Event of Default has occurred Default, Agent may provide notice that payments may no longer be made); (d) [reserved]; (e) dividends by any Subsidiary of Parent to Parent and is continuing or would result therefrom, immediately thereafter by Parent to Rand to pay (Band Rand shall promptly pay) the Borrower has unused Commitments ratable share of not less than 20% of the total Commitments then taxes owed by Borrowers and their Subsidiaries, Parent and Rand’s corporate overhead and directors’ fees, in effect and (C) the ratio of Total Debt as of such time (including the effect of any Borrowings or other Debt used to make such Restricted Payment) to EBITDA for the four fiscal quarters ending on the last day of the fiscal quarter immediately preceding the date of determination for which financial statements are available is equal to or less than 3.00 to 1.00, the Borrower may declare and pay cash dividends each case to the Parent, and the Parent may declare and pay cash dividends to its Equity Interest holders; (iv) if no Default or Event of Default has occurred and is continuing or would exist after giving effect thereto, the repurchase or other acquisition of equity securities, limited partnership interest or units of the Parent not to exceed $2,500,000 in the aggregate since the Eighth Amendment Effective Date, from employees, former employees, directors or former directors of the Parent or its Subsidiaries (or permitted transferees of such employees, former employees, directors or former directors), pursuant to the terms of the agreements (including employment agreements) or plans (or amendments thereto) or other arrangements approved by the board of directors of the Parent under which such equity securities, limited partnership interest or units were granted, issued or sold; and (v) the Borrower may declare and pay dividends or distributions to the Parent in an amount equal to (A) Taxes then due and owing by the Parent and (B) reasonable and customary accounting, public company and other overhead and administrative costs and expenses (exclusive of any markup or premium), including reasonable and customary director’s fees and expenses, extent incurred by the Parent in the ordinary course of businessbusiness in accordance with a budget previously provided to the Agent and the Lenders; (f) [reserved]; (g) [reserved]; (h) dividends by Black Creek Holdings to Rand so long as such amount is contributed promptly thereafter by Rand to Parent and by Parent to any Borrower; (i) conversions of Permitted Intercompany Indebt- edness owing to Parent of up to US$30,000,000 in the aggregate during the term of this Agreement into preferred equity of the applicable Credit Party having terms acceptable to the Agent, so long as such preferred equity is pledged to the Agent, on behalf of the Secured Parties, as additional Collateral for the Obligations; (j) [reserved]; (k) [reserved]; (l) [reserved]; (m) [reserved]; and (n) Indebtedness secured by a Permitted Encumbrance if the asset securing such Indebtedness has been sold or otherwise disposed of in accord- ance with Section 6.8(b) or (c).”. 1.8

Restricted Payments. The Borrower and the Parent Guarantors will not, and nor will not it permit any of their respective Subsidiaries Restricted Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, declare, order, make or set apart any sum for or pay any Restricted Payment, return except (a) to make dividends payable solely in the same class of Capital Stock of such Person, (b) to make dividends or other distributions payable to any capital Credit Party (directly or indirectly through Subsidiaries), (c) to make dividends or repurchases on or before the Funding Date in order to consummate the transactions contemplated by the Credit Documents, Merger Documents and DFA Agreement, (d) to make dividends to or repurchases from the Borrower or the holders of ownership interests of such Subsidiary the proceeds of which shall be used to pay taxes that are then due and payable, (e) in the case of a Receivables Financing SPC, to make Restricted Payments to its stockholders owners to the extent of net income or other assets available therefor under applicable law, and (f) to make any distribution of their Property to their respective Equity Interest holdersother Restricted Payments; provided, except however (i) for so long as the Parent may declare Leverage Ratio of the Borrower as of the end of the most recently ended fiscal quarter for which financial statements have been delivered in accordance with Section 5.1(b) is greater than or equal to 3.75 to 1.0, such Restricted Payments shall not exceed $50,000,000 during any fiscal year, and pay dividends or distributions with respect to its Equity Interests payable solely in additional shares of its Equity Interests (other than Disqualified Capital Stock); (ii) Subsidiaries of the Borrower may declare and pay dividends or distributions ratably with respect to their Equity Interests; (iii) so long as both before and immediately after giving effect to such Restricted PaymentPayments on a Pro Forma Basis, (A) no Default or Event of Default has shall have occurred and is and/or be continuing or would be directly or indirectly caused as a result therefromthereof. For the purpose of clarification, (B) it is hereby understood and agreed that to the extent any Restricted Payments are made by the Borrower has unused Commitments or any Restricted Subsidiary in a fiscal year prior to the time upon which subclause (f)(i)(A) above applies (i.e., at the time that the Leverage Ratio of not the Borrower as of the end of the most recently ended fiscal quarter is less than 20% of 3.75 to 1.0), the total Commitments then in effect and (C) the ratio of Total Debt as amount of such Restricted Payments made prior to such time (including the effect of any Borrowings or other Debt used to make such Restricted Payment) to EBITDA for the four fiscal quarters ending on the last day of the fiscal quarter immediately preceding the date of determination for which financial statements are available is equal to or less than 3.00 to 1.00, the Borrower may declare and pay cash dividends to the Parent, and the Parent may declare and pay cash dividends to its Equity Interest holders; (iv) if no Default or Event of Default has occurred and is continuing or would exist after giving effect thereto, the repurchase or other acquisition of equity securities, limited partnership interest or units of the Parent shall not to exceed $2,500,000 be counted in the aggregate since the Eighth Amendment Effective Date, from employees, former employees, directors or former directors of the Parent or its Subsidiaries limitation set forth in subclause (or permitted transferees of such employees, former employees, directors or former directors), pursuant to the terms of the agreements (including employment agreementsf)(i)(A) or plans (or amendments thereto) or other arrangements approved by the board of directors of the Parent under which such equity securities, limited partnership interest or units were granted, issued or sold; and (v) the Borrower may declare and pay dividends or distributions to the Parent in an amount equal to (A) Taxes then due and owing by the Parent and (B) reasonable and customary accounting, public company and other overhead and administrative costs and expenses (exclusive of any markup or premium), including reasonable and customary director’s fees and expenses, incurred by the Parent in the ordinary course of businessabove.

Restricted Payments. The Borrower and the Parent Guarantors Credit Parties will not, and will not permit any of their respective Subsidiaries Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, return except that (a) any capital to its stockholders or Subsidiary may make any distribution of their Property to their respective Equity Interest holders, except (i) the Parent may declare and pay dividends or distributions Restricted Payments with respect to its Equity Interests payable solely in additional shares of its to a Credit Party or any other Subsidiary and to any other Person owning such Equity Interests Interests, (other than Disqualified Capital Stock); (iib) Subsidiaries each of the Borrower may declare and pay dividends or distributions ratably with respect to their Equity Interests; (iii) so long as both before and immediately after giving effect to such Restricted Payment, (A) no Default or Event of Default has occurred and is continuing or would result therefrom, (B) the Borrower has unused Commitments of not less than 20% of the total Commitments then in effect and (C) the ratio of Total Debt as of such time (including the effect of any Borrowings or other Debt used to make such Restricted Payment) to EBITDA for the four fiscal quarters ending on the last day of the fiscal quarter immediately preceding the date of determination for which financial statements are available is equal to or less than 3.00 to 1.00, the Borrower may declare and pay cash dividends to the Parent, Company and the Parent may declare and make dividends and distributions on its Equity Interests that are payable only in its common stock, (c) the Company (prior to the Closing Date) and the Parent (following the Closing Date) may declare and pay ordinary cash dividends quarterly with respect to its Equity Interest holders; (iv) if no Default or Event of Default has occurred and is continuing or would exist after giving effect thereto, the repurchase or other acquisition of equity securities, limited partnership interest or units of the Parent common stock in an amount not to exceed $2,500,000 0.38 per share (adjusted in each case in a manner reasonably satisfactory to the aggregate since Administrative Agent to reflect any issuance, split, repurchase, combination or reclassification of, or similar adjustments to, the Eighth Amendment Effective Datecommon stock of the Company or the Parent, from employeesas applicable (other than as expressly contemplated by the Merger Agreement in connection with the Merger)) so long as no Event of Default of the type described in Section 7.01(a) or Section 7.01(d) is continuing on the date of declaration thereof, former employees(d) any member of the Credit Group may make Restricted Payments pursuant to and in accordance with stock option plans, management equity plans, stock subscription agreements, shareholder agreements, other benefit plans or compensation arrangements or accommodations, in each case for the benefit of management, directors or former directors employees of the Parent or its Subsidiaries (or permitted transferees of such employees, former employees, directors or former directors), pursuant to the terms of the agreements (including employment agreements) or plans (or amendments thereto) or other arrangements approved by the board of directors of the Parent under which such equity securities, limited partnership interest or units were granted, issued or sold; Credit Group and (v) the Borrower may declare and pay dividends or distributions to the Parent in an amount equal to (A) Taxes then due and owing by the Parent and (B) reasonable and customary accounting, public company and other overhead and administrative costs and expenses (exclusive of any markup or premium), including reasonable and customary director’s fees and expenses, incurred by the Parent in the ordinary course of business, (e) the Credit Parties and their Subsidiaries may make Restricted Payments required to be made pursuant to the Merger Agreement as in effect on the Signing Date and (f) the Company (prior to the Closing Date) and the Parent (from the Closing Date) may redeem or repurchase its common stock for an aggregate amount of consideration not to exceed $250,000,000 so long as no Event of Default is continuing on the date of such redemption or repurchase or would result therefrom, including on a pro forma basis after giving effect to such redemption or repurchase.

Restricted Payments. The Borrower and Each of the Parent Guarantors Credit Parties will not, and nor will not it permit any of their respective its Restricted Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, declare, order, make or set apart any sum for or pay any Restricted Payment, return except (a) to make dividends or other distributions payable solely in the same class of Equity Interests of such Person; (b) to make dividends or other distributions payable to any capital Credit Party (directly or indirectly through Subsidiaries); (c) subject to the subordination terms thereof, to make regularly scheduled interest payments under any Subordinated Indebtedness; (d) the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Borrower or any Restricted Subsidiary of the Borrower held by any current or former officer, director or employee of the Borrower or any of its stockholders Restricted Subsidiaries pursuant to any equity subscription agreement, stock option agreement, shareholders’ agreement or make any distribution of their Property to their respective Equity Interest holders, except similar agreement; provided that (i) the Parent may declare and pay dividends aggregate price paid for all such repurchased, redeemed, acquired or distributions with respect to its retired Equity Interests payable solely may not exceed $25,000,000 in additional shares any twelve (12)-month period plus the portion of its such amount available but unused from prior twelve (12)-month periods and (ii) such amount in any calendar year may be increased by an amount not to exceed (A) the net cash proceeds received by the Borrower from the sale of Equity Interests (other than Disqualified Capital Stock) of the Borrower to members of management or directors of the Borrower and its Restricted Subsidiaries that occurs after the First Amendment Effective Date (to the extent such cash proceeds from the sale of such Equity Interests have not otherwise been applied to the payment of Restricted Payments), plus (B) the net cash proceeds of key man life insurance policies received by the Borrower and its Restricted Subsidiaries after the First Amendment Effective Date, less (C) the amount of any Restricted Payments made pursuant to clauses (ii)(A) and (ii)(B) of this clause (d); (e) the repurchase of Equity Interests deemed to occur (i) upon the exercise of stock options, warrants or other convertible securities (other than, for the avoidance of doubt, convertible securities constituting Convertible Bond Indebtedness) to the extent such Equity Interests represent a portion of the exercise price thereof or (ii) Subsidiaries upon the transfer of shares of restricted stock to the Borrower may declare and pay dividends in connection with the payment of withholding tax by the Borrower or distributions ratably with respect to their Equity Interestsa Restricted Subsidiary following a sale of shares of restricted stock by the holder thereof; (iiif) so long as both before and immediately after giving effect to such Restricted Payment, (A) no Default or Event of Default has occurred and is continuing or would result therefrom, (Bi) to make dividends, repurchase shares of its Equity Interests and make other Restricted Payments in an aggregate amount not to exceed $175,000,000 for the period from the First Amendment Effective Date through the Maturity Date and (ii) if the Consolidated Net Leverage Ratio would be less than or equal to 3.00 to 1.0 as of the last fiscal quarter end on a Pro Forma Basis, after giving effect thereto, to make unlimited dividends, share repurchases and other Restricted Payments (it being understood and agreed that Restricted Payments made pursuant to this clause (ii) shall not be included in the calculation of the amount available for Restricted Payments pursuant to the foregoing clause (i)); (g) the Borrower has unused Commitments may (i) enter into Capped Call Transactions, Convertible Bond Hedge Transactions and Warrant Transactions in connection with the issuance of not less than 20% Convertible Bond Indebtedness permitted under Section 8.01(q) and satisfy its obligations to pay premiums upon entering into such transactions and (ii) make any payment in connection therewith by delivery of shares of the total Commitments then Borrower’s common stock upon net share settlement thereof (together with cash in effect and lieu of fractional shares) or set-off, netting and/or payment of an early termination payment or similar payment thereunder upon any early termination thereof, in each case made in Borrower’s common stock; (Ch) the ratio Borrower may issue shares of Total Debt as its common stock, make cash payments of interest required pursuant to the related indenture, make cash payments required to be made under the related indenture in an amount (excluding any required payment of interest with respect to such time (including the effect Convertible Bond Indebtedness and excluding any payment of any Borrowings or other Debt used to make such Restricted Paymentcash in lieu of a fractional share) to EBITDA for the four fiscal quarters ending on the last day of the fiscal quarter immediately preceding the date of determination for which financial statements are available is equal to or less than 3.00 the principal amount of the Convertible Bond Indebtedness in respect of which such cash payment is made and/or make cash payments in lieu of issuing fractional shares, in each case, to 1.00satisfy obligations in respect of Convertible Bond Indebtedness (including, for the avoidance of doubt, cash payments in lieu of issuing fractional shares pursuant to the terms of any related Capped Call Transaction, Convertible Bond Hedge Transaction or Warrant Transaction); (i) the Borrower may declare make cash payments to satisfy obligations in respect of Convertible Bond Indebtedness, Capped Call Transactions, Convertible Bond Hedge Transactions and pay cash dividends Warrant Transactions solely to the Parentextent the Borrower does not have the option of satisfying such payment obligations through the issuance of the Borrower’s common stock or is required to satisfy such payment obligations in cash, it being understood and agreed that any payment made in cash in connection with Convertible Bond Indebtedness, Capped Call Transactions, Convertible 101 Bond Hedge Transactions and Warrant Transactions by set-off, netting and/or payment of an early termination payment or similar payment thereunder upon any early termination thereof, in each case, after using commercially reasonable efforts to satisfy such obligation (or the Parent may declare and pay cash dividends portion thereof remaining after giving effect to its Equity Interest holdersany netting or set-off against termination or similar payments under an applicable Convertible Bond Hedge Transaction) by delivery of shares of the Borrower’s common stock shall be deemed to be a payment obligation required to be satisfied in cash; (ivj) if the Borrower may receive shares of its own common stock and/or cash on account of settlements and/or early terminations or unwinds howsoever documented or agreed of any Convertible Bond Hedge Transactions, Capped Call Transactions or Warrant Transactions; (k) the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Borrower in connection with any Convertible Bond Indebtedness with proceeds received (or substantially simultaneously received) from the issuance of such Convertible Bond Indebtedness, in an aggregate amount not to exceed $100,000,000, it being understood and agreed that any payment, repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Borrower made in connection with any Permitted Refinancing shall be permitted and shall not be subject to any dollar limitation; and (l) other Restricted Payments not permitted by the foregoing clauses; provided that (i) no Default or Event of Default has occurred shall exist immediately before and is continuing or would exist immediately after giving effect theretoto such Restricted Payment, (ii) the repurchase or other acquisition Credit Parties shall be in compliance with the financial covenants in Section 7.07 on a Pro Forma Basis after giving effect to such Restricted Payment, and (iii) the aggregate amount of equity securities, limited partnership interest or units all Restricted Payments made pursuant to this clause (l) plus the aggregate amount of the Parent all Investments made pursuant to Section 8.05(b) shall not to exceed $2,500,000 in the aggregate since the Eighth Amendment Effective Date, from employees, former employees, directors or former directors of the Parent or its Subsidiaries (or permitted transferees of such employees, former employees, directors or former directors), pursuant to the terms of the agreements (including employment agreements) or plans (or amendments thereto) or other arrangements approved by the board of directors of the Parent under which such equity securities, limited partnership interest or units were granted, issued or sold; and (v) the Borrower may declare and pay dividends or distributions to the Parent in an amount equal to (A) Taxes then due and owing by the Parent and (B) reasonable and customary accounting, public company and other overhead and administrative costs and expenses (exclusive of 50,000,000 at any markup or premium), including reasonable and customary director’s fees and expenses, incurred by the Parent in the ordinary course of businesstime outstanding.

Restricted Payments. The Borrower and the Parent Guarantors will not, and will not permit any of their respective its Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Paymentdividend or distribution on any class of its stock, return any capital to its stockholders or make any distribution payment on account of, or set apart assets for a sinking or other analogous fund for, the purchase, redemption, retirement, defeasance or other acquisition of, any shares of their Property capital stock or Indebtedness subordinated to their respective Equity Interest holdersthe Obligations of the Borrower or any options, warrants, or other rights to purchase such capital stock or such Indebtedness, whether now or hereafter outstanding (each, a “Restricted Payment”), except for (i) dividends and distributions payable by the Parent may declare and pay dividends or distributions with respect to its Equity Interests payable Borrower solely in additional shares of any class of its Equity Interests (other than Disqualified Capital Stock); common stock, (ii) Restricted Payments made by any Subsidiary to the Borrower or to another Subsidiary, on at least a pro rata basis with any other shareholders if such Subsidiary is not wholly owned by the Borrower and other wholly owned Subsidiaries and (iii) cash dividends paid on, and cash redemptions (excluding Stock Buybacks made pursuant to clause (iv) below) of, the common stock of the Borrower may declare and pay dividends or distributions ratably with respect to their Equity Interests; (iii) so long as both before and immediately after giving effect to such Restricted Payment, (Ax) no Default or Event of Default has occurred and is continuing at the time such dividend is paid or would result therefromredemption is made, and (By) the aggregate amount of all such Restricted Payments made by the Borrower has unused Commitments in any Fiscal Year (including without limitation the full Fiscal Year 2005) does not exceed the greater of not (1) $6,200,000 and (2) 50% of Consolidated Net Income (if greater than $0) earned during the immediately preceding fiscal year; provided, further, that in the event that such Restricted Payments actually paid in any Fiscal Year are less than 20% of the total Commitments then maximum amount permitted in effect and (C) the ratio of Total Debt as of such time (including the effect of any Borrowings or other Debt used to make such Restricted Payment) to EBITDA for the four fiscal quarters ending on the last day of the fiscal quarter immediately preceding the date of determination for which financial statements are available is equal to or less than 3.00 to 1.00year, the Borrower unused permitted amount for such Fiscal Year may declare and pay cash dividends be carried forward two (but no more than two) Fiscal Years to the Parent, immediately following two Fiscal Years and the Parent may declare and pay cash dividends to its Equity Interest holders; (iv) if cash payments made to purchase or redeem shares of the common stock of the Borrower (a “Stock Buyback”) so long as (x) no Default or Event of Default has occurred and is continuing or would exist at the time of such Stock Buyback, and (y) the aggregate amount of all such Stock Buybacks after giving effect theretoDecember 31, the repurchase or other acquisition of equity securities2006, limited partnership interest or units of the Parent do not to exceed $2,500,000 in the aggregate since the Eighth Amendment Effective Date, from employees, former employees, directors or former directors of the Parent or its Subsidiaries (or permitted transferees of such employees, former employees, directors or former directors), pursuant to the terms of the agreements (including employment agreements) or plans (or amendments thereto) or other arrangements approved by the board of directors of the Parent under which such equity securities, limited partnership interest or units were granted, issued or sold; and (v) the Borrower may declare and pay dividends or distributions to the Parent in an amount equal to (A) Taxes then due and owing by the Parent and (B) reasonable and customary accounting, public company and other overhead and administrative costs and expenses (exclusive of any markup or premium), including reasonable and customary director’s fees and expenses, incurred by the Parent in the ordinary course of business35,000,000.

Restricted Payments. The Borrower and the Parent Guarantors will not, and will not permit any of their respective Subsidiaries to, No Loan Party may declare or make, or agree to pay or make, directly or indirectly, any Restricted PaymentPayments, return or incur any capital obligation (contingent or otherwise) to its stockholders or make any distribution of their Property to their respective Equity Interest holdersdo so, except that (ia) any Subsidiary of a Borrower may make Restricted Payments to such Borrower, (b) the Parent Loan Parties may declare and pay dividends make non-cash dividend payments or other non-cash distributions with respect to its Equity Interests payable solely in additional shares of its Equity Interests (other than Disqualified their Capital Stock); , (iic) Subsidiaries of the Borrower Loan Parties may declare and pay make other cash dividends and distributions in the absence of any continuing Defaults or distributions ratably with respect to their Equity Interests; (iii) so long as both before Events of Default and immediately provided that after giving immediate effect to such Restricted Paymentthereto, (A) no Default or Event of Default has occurred and is continuing or would result therefrom, and provided further that at the time of each such dividend or distribution and on a pro-forma basis upon giving effect to such dividend or distribution (Bi) it is in compliance with the Borrower has unused Commitments of financial covenant set forth in Section 6.11 hereto and (ii) that the aggregate Railcar Equity Value at such time reported on the Borrower’s balance sheet is not less than 20% the aggregate Railcar Equity Value calculated at the time of the total Commitments then in effect most recent Borrowing Base Certificate delivered under the Credit Facility, and (Cd) the ratio of Total Debt as of such time (including the effect of any Borrowings or other Debt used to make such Restricted Payment) to EBITDA for the four fiscal quarters ending on the last day of the fiscal quarter immediately preceding the date of determination for which financial statements are available is equal to or less than 3.00 to 1.00, the Borrower Loan Parties may declare and pay make Permitted Tax Distributions. The Borrower shall demonstrate its compliance with clause “(c)” of this Section to the reasonable satisfaction of the Lender as part of its monthly reporting pursuant to Section 5.09.2 of this Agreement, if during such monthly reporting period, the Loan Parties declare and make any cash dividends to or distributions under clause “(c)” of this Section. For the Parent, and the Parent may declare and pay cash dividends to its Equity Interest holders; (iv) if no Default or Event avoidance of Default has occurred and is continuing or would exist after giving effect theretodoubt, the repurchase Loan Parties shall not make any Restricted Payment consisting of (x) any redemption, repurchase, conversion, exchange, retirement, sinking fund or similar payment, purchase or other acquisition for value, direct or indirect by any Loan Party, of equity securitiesany Equity Interest in any Loan Party now or hereafter outstanding, limited partnership interest or units of (y) any payment made by the Parent not Loan Party to exceed $2,500,000 in retire, or to obtain the aggregate since the Eighth Amendment Effective Datesurrender of, from employeesany outstanding warrants, former employees, directors or former directors of the Parent or its Subsidiaries (or permitted transferees of such employees, former employees, directors or former directors), pursuant to the terms of the agreements (including employment agreements) or plans (or amendments thereto) options or other arrangements approved by the board of directors of the Parent under which rights to acquire Equity Interests in such equity securities, limited partnership interest Person now or units were granted, issued or sold; and (v) the Borrower may declare and pay dividends or distributions to the Parent in an amount equal to (A) Taxes then due and owing by the Parent and (B) reasonable and customary accounting, public company and other overhead and administrative costs and expenses (exclusive of any markup or premium), including reasonable and customary director’s fees and expenses, incurred by the Parent in the ordinary course of businesshereafter outstanding.

Restricted Payments. The Borrower and the Parent Guarantors will not, and will not permit Declare or pay any of their respective Subsidiaries to, declare or makedividend on, or agree to pay make any payment or makeother distribution on account of, or purchase, redeem, retire or otherwise acquire (directly or indirectly), or set apart assets for a sinking or other analogous fund for the purchase, redemption, retirement or other acquisition of, any Restricted Paymentclass of Equity Interests of any Credit Party or any Subsidiary thereof, return any capital to its stockholders or make any distribution of their Property cash, property or assets to their respective the holders of shares of any Equity Interest holdersInterests of any Credit Party or any Subsidiary thereof (all of the foregoing, except the “Restricted Payments”) provided that: (ia) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Parent Borrower or any of its Subsidiaries may declare and pay dividends or distributions with respect to its Equity Interests payable solely in additional shares of its own Qualified Equity Interests (other than Disqualified Capital Stock)Interests; (iib) Subsidiaries any Subsidiary of the Borrower may declare and pay dividends or distributions ratably with respect make Restricted Payments to their Equity Interestsany Credit Party; (iiic) so long as both before any Non-Credit Party may make Restricted Payments to any other Non-Credit Party (and, if applicable, to other holders of its outstanding Equity Interests on a ratable basis); (d) Restricted Payments pursuant to and immediately after giving effect in accordance with stock option plans or other benefit plans for directors, management, employees or consultants of the Borrower and its Subsidiaries in an aggregate amount not to such exceed $10,000,000 in any Fiscal Year; and (e) the Borrower shall be permitted to make Restricted Payment, Payments; provided that (Ai) no Default or Event of Default has occurred and is continuing or would result therefrom, and (Bii) the Borrower has unused Commitments of not less than 20% of pro forma Consolidated Total Leverage Ratio based on the total Commitments then in most recent financial statements that have been delivered pursuant to Section 7.1(a) or (b), as applicable, calculated on a pro forma basis after giving effect and (C) the ratio of Total Debt as of such time (including the effect of any Borrowings or other Debt used to make such Restricted Payment) to EBITDA for the four fiscal quarters ending on the last day of the fiscal quarter immediately preceding the date of determination for which financial statements are available is equal to or less than , does not exceed 3.00 to 1.00, the Borrower may declare and pay cash dividends to the Parent, and the Parent may declare and pay cash dividends to its Equity Interest holders; (iv) if no Default or Event of Default has occurred and is continuing or would exist after giving effect thereto, the repurchase or other acquisition of equity securities, limited partnership interest or units of the Parent not to exceed $2,500,000 in the aggregate since the Eighth Amendment Effective Date, from employees, former employees, directors or former directors of the Parent or its Subsidiaries (or permitted transferees of such employees, former employees, directors or former directors), pursuant to the terms of the agreements (including employment agreements) or plans (or amendments thereto) or other arrangements approved by the board of directors of the Parent under which such equity securities, limited partnership interest or units were granted, issued or sold; and (v) the Borrower may declare and pay dividends or distributions to the Parent in an amount equal to (A) Taxes then due and owing by the Parent and (B) reasonable and customary accounting, public company and other overhead and administrative costs and expenses (exclusive of any markup or premium), including reasonable and customary director’s fees and expenses, incurred by the Parent in the ordinary course of business.. SECTION 8.7

Restricted Payments. The Borrower and the Parent Guarantors will not, and will not declare or pay ------------------- any dividends or make any other payment or distribution (whether in cash, property, or obligations) on account of its capital stock, or redeem, purchase, retire, or otherwise acquire any of its capital stock, or permit any of their respective its Subsidiaries to, declare to purchase or makeotherwise acquire any capital stock of the Borrower or another Subsidiary, or agree set apart any money for a sinking or other analogous fund for any dividend or other distribution on its capital stock or for any redemption, purchase, retirement, or other acquisition of any of its capital stock; provided that the foregoing restrictions do not prohibit (a) the purchase of common stock of the Borrower in open market transactions, so long as no Default or Event of Default exists at the time of such purchase nor would result after giving effect thereto; (b) dividend payments on any class of capital stock payable solely in shares of capital stock of the Borrower; (c) payments of dividends from any Subsidiary to pay the Borrower; (d) payments in lieu of taxes to the Borrower or makea Subsidiary pursuant to a tax sharing agreement; (e) any exchange of stock not involving any cash consideration pursuant to a stock option plan for employees or directors of the Borrower; (f) payments of cash dividends on any class of capital stock of Borrower so long as no Default or Event of Default exists at the time of such payment nor would result after giving effect thereto at the time of such payment; and (g) any other redemption, directly purchase, retirement or indirectlythe acquisition of the Borrower's capital stock upon obtaining the prior written approval of the Bank (clauses (a) through and ----------- including (g) being hereinafter referred to as "Permitted Restricted Payments"). --- ----------------------------- Notwithstanding anything to the contrary contained herein, any Restricted Payment, return any capital to its stockholders or make any distribution of their Property to their respective Equity Interest holders, except (i) the Parent may declare and pay dividends or distributions with respect to its Equity Interests payable solely Permitted Restricted Payments shall not at any time exceed $2,000,000 in additional shares the aggregate during any fiscal year of its Equity Interests (other than Disqualified Capital Stock); the Borrower, (ii) Subsidiaries upon the occurrence of a violation of any provision of Article XII, the Borrower may declare not make any Permitted ------------ Restricted Payment for a period of at least six (6) months following the curing or the waiver of such violation, and pay dividends or distributions ratably with respect to their Equity Interests; (iii) the Borrower may make Permitted Restricted Payments so long as both before and immediately after giving effect to such Restricted Payment, (A) no Default or Event of Default has occurred and is continuing or would result therefrom, (B) the Borrower has unused Commitments of not less than 20% of the total Commitments then in effect and (C) the ratio of Total Debt as of from such time (including the effect of any Borrowings or other Debt used to make such Permitted Restricted Payment) to EBITDA for the four fiscal quarters ending on the last day of the fiscal quarter immediately preceding the date of determination for which financial statements are available is equal to or less than 3.00 to 1.00, the Borrower may declare and pay cash dividends to the Parent, and the Parent may declare and pay cash dividends to its Equity Interest holders; (iv) if no Default or Event of Default has occurred and is continuing or would exist after giving effect thereto, the repurchase or other acquisition of equity securities, limited partnership interest or units of the Parent not to exceed $2,500,000 in the aggregate since the Eighth Amendment Effective Date, from employees, former employees, directors or former directors of the Parent or its Subsidiaries (or permitted transferees of such employees, former employees, directors or former directors), pursuant to the terms of the agreements (including employment agreements) or plans (or amendments thereto) or other arrangements approved by the board of directors of the Parent under which such equity securities, limited partnership interest or units were granted, issued or sold; and (v) the Borrower may declare and pay dividends or distributions to the Parent in an amount equal to (A) Taxes then due and owing by the Parent and (B) reasonable and customary accounting, public company and other overhead and administrative costs and expenses (exclusive of any markup or premium), including reasonable and customary director’s fees and expenses, incurred by the Parent in the ordinary course of business.. Section 2.3

Restricted Payments. The Borrower and the Parent Guarantors will notDirectly or indirectly declare, and will not permit order, pay, make or set apart any of their respective Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, sum for any Restricted Payment, return any capital except that (a) the Borrower may declare or order, and make, pay or set apart, once during each fiscal quarter, a Restricted Payment in an amount not exceeding the sum of an amount to be distributed by the Parent to its stockholders partners promptly upon receipt from the Borrower plus an amount equal to the proportionate distribution from the Borrower to the General Partner in respect of such distribution, and (b) the Borrower may declare or make order, and make, pay or set apart, Restricted Payments to the General Partner and the Parent to fund the payment by them of tax liabilities, legal, accounting and other professional fees and expenses, compensation, fees and expenses of the Elected Supervisors of the Parent (as defined in the Agreement of Limited of Partnership of the Parent) and indemnification of and contribution to all Persons entitled to indemnification or contribution under Section 8.14 of the Agreement of Limited Partnership of the Parent (as in effect on the Closing Date), any distribution fees and expenses associated with registration statements filed with the Securities and Exchange Commission and subsequent ongoing public reporting requirements, and other liabilities, obligations or costs of their Property the General Partner or the Parent in each case to their respective Equity Interest holdersthe extent actually incurred by the General Partner or the Parent, except as applicable, in connection with, arising from, or relating to the Business or the Parent's ownership of Capital Stock of the Borrower and its Subsidiaries; provided that (i) the Parent may declare aggregate amount of Restricted Payments declared or ordered, or made, paid, or set apart in any fiscal quarter shall not exceed Available Cash for the immediately preceding fiscal quarter and pay dividends or distributions with respect to its Equity Interests payable solely in additional shares of its Equity Interests (other than Disqualified Capital Stock); (ii) Subsidiaries of the Borrower may declare and pay dividends or distributions ratably with respect to their Equity Interests; (iii) so long as both before and immediately after giving effect to such Restricted Payment, (A) no Default or Event of Default has occurred then exists and is continuing continuing, or would result therefrom, (B) the Borrower has unused Commitments of not less than 20% of the total Commitments then in effect and (C) the ratio of Total Debt as of such time (including the effect of any Borrowings or other Debt used to make be caused by such Restricted Payment) to EBITDA for , and the four fiscal quarters ending Borrower and it Subsidiaries shall be in compliance, on a pro forma basis, with the covenants contained in Article IX recomputed as of the last day of the most recently ended fiscal quarter immediately preceding the date of determination for which financial statements are available is equal to or less than 3.00 to 1.00, the Borrower may declare and pay cash dividends to its Subsidiaries as if such action had occurred on the Parentfirst day of each relevant period for testing such compliance, and the Parent may declare Borrower shall have delivered to the Administrative Agent an officer's certificate to such effect, together with all relevant financial information and calculations demonstrating such compliance. The Borrower will comply with the reserve provisions required under the definition of Available Cash. The Borrower will not, in any event, directly or indirectly declare, order, pay cash dividends or make any Restricted Payment except in cash. The Borrower will not permit any Subsidiary to its Equity Interest holders; declare, order, pay or make any Restricted Payment or to set apart any sum or property for any such purpose other than to (ivi) if the Borrower or any Wholly-Owned Subsidiary and (ii) so long as no Default or Event of Default has shall have occurred and is be continuing or would exist after giving effect theretobe caused thereby, the repurchase all holders of Capital Stock of or other acquisition of equity securities, limited partnership interest or units of the Parent not to exceed $2,500,000 interests in the aggregate since the Eighth Amendment Effective Date, from employees, former employees, directors or former directors of the Parent or its Subsidiaries (or permitted transferees of such employees, former employees, directors or former directors), pursuant to the terms of the agreements (including employment agreements) or plans (or amendments thereto) or other arrangements approved by the board of directors of the Parent under which such equity securities, limited partnership interest or units were granted, issued or sold; and (v) the Borrower may declare and pay dividends or distributions to the Parent in an amount equal to (A) Taxes then due and owing by the Parent and (B) reasonable and customary accounting, public company and other overhead and administrative costs and expenses (exclusive of any markup or premium), including reasonable and customary director’s fees and expenses, incurred by the Parent in the ordinary course of businessSubsidiary on a pro rata basis.

Restricted Payments. The Borrower Parent and the Parent Guarantors Borrower will not, and will not permit any of their respective Subsidiaries Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, return any capital to its stockholders or make any distribution of their Property to their respective Equity Interest holders, except (ia) the Parent and the Borrower may declare and pay dividends or distributions with respect to its Equity Interests payable solely in additional shares of its Equity Interests common stock; (other than Disqualified Capital Stockb) if no Default has occurred and is continuing, the Parent may declare and pay and, if declared when no Default exists, the Borrower may pay, dividends in cash in a cumulative aggregate amount for all such dividends declared after the Restatement Effective Date not to exceed 40% of Consolidated Net Income for the period from February 1, 2004 through the end of the most recently ended fiscal quarter of the Parent (considered as a single accounting period); (iic) Subsidiaries of the Borrower may (i) declare and pay dividends or make distributions ratably with respect to their Equity InterestsInterests and (ii) may make Restricted Payments to the Parent, and other Subsidiaries of the Parent, in amounts necessary to enable the Parent to pay the dividends described in clause (b) above, along with standard costs associated with such payment of dividends or distributions, and to pay taxes and operating and professional expenses; (iiid) the Parent, the Borrower and the Subsidiaries may make Restricted Payments pursuant to and in accordance with employment contracts, stock option plans or other benefit plans or similar arrangements for consultants, management (including directors and officers) or employees of the Parent, the Borrower and the Subsidiaries; (e) so long as both before and immediately after giving effect to such Restricted Payment, (A) no Default or Event of Default has occurred shall exist, the Parent and is continuing or would result therefrom, (B) the Borrower has unused Commitments of not less than 20% of the total Commitments then in effect and (C) the ratio of Total Debt as of such time (including the effect of any Borrowings or other Debt used to make such Restricted Payment) to EBITDA for the four fiscal quarters ending on the last day of the fiscal quarter immediately preceding the date of determination for which financial statements are available is equal to or less than 3.00 to 1.00, the Borrower may declare and pay cash dividends to the Parent, and the Parent may declare and pay cash dividends to its Equity Interest holders; (ivi) if no Default or Event repurchase fractional shares of Default has occurred and is continuing or would exist after giving effect thereto, the repurchase or other acquisition common stock of equity securities, limited partnership interest or units of the Parent not to exceed $2,500,000 in the aggregate since the Eighth Amendment Effective Date, from employees, former employees, directors or former directors of the Parent or its Subsidiaries (or permitted transferees of such employees, former employees, directors or former directors), pursuant to the terms of the agreements (including employment agreements) or plans (or amendments thereto) or other arrangements approved by the board of directors of the Parent under which such equity securities, limited partnership interest or units were granted, issued or sold; and (v) the Borrower may declare and pay dividends or distributions to the Parent in an amount equal to (A) Taxes then due and owing by the Parent and (Bii) reasonable and customary accountingrepurchase shares of common stock of the Parent for cash in any amount, public company and other overhead and administrative costs and expenses (exclusive so long as no Loans are outstanding at the time of such repurchases or, if Loans are outstanding at the time of any markup or premium)proposed repurchase during any fiscal year, including reasonable and customary director’s fees and expenses, incurred by repurchase additional shares of common stock of the Parent during such fiscal year in an aggregate amount not in excess of 40% of Consolidated Net Income for the ordinary course immediately preceding fiscal year less the aggregate amount of businessany repurchases previously made in such fiscal year (it being understood that all purchases of shares of common stock on the open market shall be subject to the limitations set out in this clause (e) and are not separately permitted by clause (d) above); and (f) any declaration of a dividend in connection with a stockholders' rights plan, or the issuance of rights, stock or other property under any stockholders' rights plan, or the redemption or repurchase of rights pursuant thereto.

Restricted Payments. The Borrower and the Parent Guarantors will not, and will not permit any of their respective Subsidiaries to, Make or declare or make, or agree otherwise become obligated to pay or make, directly or indirectly, make any Restricted Payment, return except that, so long as, at both the time of the declaration or other incurrence, if any, of any capital such Restricted Payment, and the time of the making thereof, and immediately after giving effect thereto, no Default shall have occurred and be continuing, this Section 4.06 shall not apply to its stockholders or make (a) any distribution Restricted Payment made to Comcast Cellular Corporation for the purpose of their Property redeeming, and promptly applied to their respective Equity Interest holdersthe redemption of, except the Comcast Cellular Zeros; (b) any Restricted Payment (i) made to Comcast or any Subsidiary of Comcast in an amount up to the Parent may declare and pay dividends or distributions aggregate redemption price of the Comcast Cellular Zeros, if any, redeemed with respect to its Equity Interests payable solely in additional shares of its Equity Interests Comcast Common Stock and/or (ii) in an amount up to the amount of the proceeds of the redemption of Comcast Cellular Zeros owned by the Borrower or any Subsidiary; (c) any Restricted Payment made to Comcast or any Subsidiary of Comcast of up to $100,000,000 of the proceeds of Permitted Additional Indebtedness of the Borrower; (d) any Restricted Payment made to Holdco for the purpose of making, and promptly applied to make, cash interest payments on Permitted Additional Non-Facility Indebtedness of Holdco, so long as, if the terms and conditions of such Permitted Additional Non-Facility Indebtedness did not require any cash interest payments thereon at any time within the three-year period immediately following the incurrence thereof (other than Disqualified Capital Stockcustomary charges, not to exceed $2,750,000 in any year, payable in connection with Permitted Additional Non- Facility Indebtedness of Holdco); (ii) Subsidiaries of , the Borrower may declare and pay dividends or distributions ratably with respect Leverage Ratio is less than 5.50 to their Equity Interests; (iii) so long as 1 both before and immediately after giving effect to such Restricted Payment; (e) any Restricted Payment, so long as (i) the Leverage Ratio is less than 5.00 to 1 both before and after giving effect to such Restricted Payment and (ii) the Borrower shall have made (A) no Default or Event the prepayment, if any, of Default has occurred the Tranche A Loans pursuant to Section 1.05(b)(i) required to be made upon the reduction of the Total Tranche A Commitment pursuant to Section 1.07(c) resulting from such Restricted Payment and is continuing or would result therefrom, (B) the Borrower has unused Commitments of not less than 20% prepayment of the total Commitments then in effect and (CTranche B Loans pursuant to Section 1.05(b)(iv) required to be made upon the ratio making of Total Debt as of such time (including the effect of any Borrowings or other Debt used to make such Restricted Payment; (f) any Restricted Payment, so long as the Leverage Ratio is less than 4.50 to EBITDA 1 both before and after giving effect to such Restricted Payment; (g) any distribution of the assets or Capital Securities of, or other equity interests in, the Excluded Subsidiaries or any Restricted Payment consisting of the proceeds of any disposition of such assets, Capital Securities or other equity interests; (h) any Restricted Payment consisting of the proceeds of any issuance of the capital stock of the Borrower, so long as no Default under Section 6.01(l) shall have resulted from such issuance; (i) any Restricted Payment made for the four fiscal quarters ending on purpose of redeeming or repurchasing the last day Borrower's Class B Participating Redeemable Preferred Stock; and (j) any Restricted Payment, in an amount, together with the aggregate amount of all other Restricted Payments pursuant to this clause (j), not in excess of $2,750,000 in any year, made to Holdco for the fiscal quarter immediately preceding purpose of making, and promptly applied to make, payment of customary charges payable in connection with Permitted Additional Non-Facility Indebtedness of Holdco; provided, that the Borrower shall have delivered to the Banks, prior to the making of any such Restricted Payment pursuant to clauses (a), (b) and (c) above, the financial projections referred to in Section 2.01(a)(xiii), revised to reflect (A) operating performance since the date of determination for which such financial statements are available is equal to or less than 3.00 to 1.00, the Borrower may declare and pay cash dividends to the Parent, and the Parent may declare and pay cash dividends to its Equity Interest holders; (iv) if no Default or Event of Default has occurred and is continuing or would exist after giving effect thereto, the repurchase or other acquisition of equity securities, limited partnership interest or units of the Parent not to exceed $2,500,000 in the aggregate since the Eighth Amendment Effective Date, from employees, former employees, directors or former directors of the Parent or its Subsidiaries (or permitted transferees of such employees, former employees, directors or former directors), pursuant to the terms of the agreements (including employment agreements) or plans (or amendments thereto) or other arrangements approved by the board of directors of the Parent under which such equity securities, limited partnership interest or units were granted, issued or sold; and (v) the Borrower may declare and pay dividends or distributions to the Parent in an amount equal to (A) Taxes then due and owing by the Parent projections and (B) reasonable the making of such Restricted Payment, and customary accounting, public company and other overhead and administrative costs and expenses (exclusive demonstrating pro forma compliance with the terms of any markup or premium), including reasonable and customary director’s fees and expenses, incurred by this Agreement through the Parent in the ordinary course of businessTermination Date.