Common use of Dividends and Related Distributions Clause in Contracts

Dividends and Related Distributions. None of the Loan Parties shall make or pay, or agree to become or remain liable to make or pay, any dividend or other distribution of any nature (whether in cash, property, securities or otherwise) on account of or in respect of its shares of capital stock, partnership interests or limited liability company interests on account of the purchase, redemption, retirement or acquisition of its shares of capital stock (or warrants, options or rights therefor), partnership interests or limited liability company interests, except: (i) dividends or other distributions payable to another Loan Party; (ii) dividends payable by the Borrower on common stock issued by the Borrower (a) not to exceed an annual rate of $0.40 per share (such amount to be appropriately adjusted to reflect any stock split, reverse stock split, stock dividend or similar transaction occurring after the ClosingAmendment No. 1 Effective Date so that the aggregate amount of dividends permitted after such transaction is the same as the amount permitted immediately prior to such transaction) or (b) in any amount greater than $0.40 per sharethe amount permitted by the preceding subclause (a) if at the time of any such dividend payment (1) no Event of Default or Potential Default shall exist or shall result from such dividend payment after giving effect thereto; (2) the Leverage Ratio at such time, calculated on a Pro Forma Basis, shall not be 0.25 to 1.0 less than the maximum applicable Leverage Ratio permitted under Section 8.2.15 [Maximum Leverage Ratio] immediately prior to and after giving effect to such dividendgreater than 4.50 to 1.00; and (3) the Borrower has Availability in excess of $100,000,000 after such dividend; (iii) stock purchases or redemptions in connection with the exercise by employees or members of the board of directors of any Loan Party of any equity securities issued pursuant to an employee or board of directors equity subscription agreement, equity option agreement or equity ownership arrangement or other compensation plan permitted to be issued hereunder; (iv) common stock purchases or redemptions, made by the Borrower, of common stock issued by the Borrower, provided that at the time of any such purchases and redemptions, (1) no Event of Default or Potential Default shall exist or shall result from such purchases or redemptions after giving effect thereto; (2) the Leverage Ratio at such time is less than 3.5, calculated on a Pro Forma Basis, shall not be greater than 3.50 to 1.01.00; and (3) the Borrower has Availability in excess of $100,000,000 after such purchases and redemptions; and (v) dividends or other distributions payable by the Borrower on common stock issued by the Borrower that are payable solely in common stock issued by the Borrower.

Dividends and Related Distributions. None No Loan Party shall, nor shall any Loan Party permit any of the Loan Parties shall make its Subsidiaries to, declare or paymake, directly or indirectly, any Restricted Payment, or agree to become or remain liable to make or pay, incur any dividend or other distribution of any nature obligation (whether in cash, property, securities contingent or otherwise) on account of or in respect of its shares of capital stockto do so, partnership interests or limited liability company interests on account of the purchase, redemption, retirement or acquisition of its shares of capital stock (or warrants, options or rights therefor), partnership interests or limited liability company interests, exceptexcept that: (ia) any Loan Party or Subsidiary may make, declare and pay lawful, cash dividends or other distributions payable to another to, or redeem any Equity Interest held by, any Loan Party; (iib) any Loan Party may make, declare or pay lawful cash dividends payable or distributions to the Excluded Subsidiaries in an aggregate amount of up to $10,000,000 over the term of the Facilities; (c) any Subsidiary of the Borrower that is not directly or indirectly wholly-owned by the Borrower on common stock issued by may make, declare and pay lawful, pro rata cash dividends, distributions and redemptions; (d) the Borrower and its Subsidiaries may make, declare and pay lawful dividends or distributions to the extent payable in Equity Interests that are not Disqualified Stock; and (ae) not to exceed an annual rate so long as no Default or Event of $0.40 per share (such amount to be appropriately adjusted to reflect any stock split, reverse stock split, stock dividend or similar transaction occurring after Default under the ClosingAmendment No. 1 Effective Date so that the aggregate amount of dividends permitted after such transaction is the same as the amount permitted immediately prior to such transaction) or (b) in any amount greater than $0.40 per sharethe amount permitted by the preceding subclause (a) if Loan Documents shall exist at the time of any such dividend payment (1) no Event of Default declaration or Potential Default shall exist or shall could reasonably be expected to result from such dividend payment after giving effect thereto; dividend, distribution or redemption (2tested solely at the time of declaration of any such dividend, distribution or redemption) and the Leverage Ratio at such time, calculated on a Pro Forma Basis, Loan Parties shall not be 0.25 to 1.0 less than in compliance with the maximum applicable Leverage Ratio permitted under Section 8.2.15 [Maximum Leverage Ratio] immediately prior to and covenants set forth in Article VIII after giving effect to such dividendgreater than 4.50 to 1.00; and (3) the Borrower has Availability in excess of $100,000,000 after any such dividend; , distribution or redemption on a Pro forma Basis for the four fiscal quarter period most recently then ended for which financial statements have been delivered (iii) stock purchases or redemptions in connection with the exercise by employees or members of the board of directors of any Loan Party of any equity securities issued pursuant to an employee or board of directors equity subscription agreement, equity option agreement or equity ownership arrangement or other compensation plan permitted to be issued hereunder; (iv) common stock purchases or redemptions, made by the Borrower, of common stock issued by the Borrower, provided that tested solely at the time of declaration of any such purchases dividend, distribution or redemption), the Borrower may make, declare and redemptionspay lawful cash dividends or distributions to its shareholders or redeem capital stock in an aggregate amount which when added to any such dividends, distributions and redemptions of capital stock made, declared or paid from and after January 1, 2016, is not more than the sum of $25,000,000 plus 60% of the Borrower’s Consolidated net income (excluding non-cash extraordinary items such as write-downs or write-ups of assets, other than current assets) from January 1) no Event , 2016 to the date of Default or Potential Default shall exist or shall result from declaration of any such purchases dividends, distributions or redemptions after giving effect thereto(collectively, the “Permitted Additional Distributions”); provided, however, that (2x) the Leverage Ratio at such time amount of any dividend or distribution that is less not paid in cash but is reinvested in Equity Interests of the Borrower (other than 3.5, calculated on a Pro Forma Basis, Disqualified Stock) shall not be greater than 3.50 to 1.01.00; excluded from this calculation and (3y) redemptions of Equity Interests of the Borrower has Availability in excess of $100,000,000 after such purchases surrendered by employees and redemptions; and (v) dividends or other distributions payable by the Borrower on common stock issued by the Borrower that are payable solely in common stock issued by the Borrowerdirectors to cover withholding taxes shall be excluded from this calculation.

Dividends and Related Distributions. None Each of the Loan Parties may make or pay dividends and distributions on account of or in respect of its shares of capital stock, partnership interests or limited liability company interests on account of the purchase, redemption, retirement or acquisition of its shares of capital stock (or warrants, options or rights therefor), partnership interests or limited liability company interests, if, at the time of such dividend or distribution and after giving effect thereto, the Borrowers have Unused Availability of not less than $25,000,000. If at the time of such dividend or distribution and after giving effect thereto the Borrowers have Unused Availability of less than $25,000,000, each of the Loan Parties shall not, and shall not permit any of its Subsidiaries to, make or pay, or agree to become or remain liable to make or pay, any dividend or other distribution of any nature (whether in cash, property, securities or otherwise) on account of or in respect of its shares of capital stock, partnership interests or limited liability company interests on account of the purchase, redemption, retirement or acquisition of its shares of capital stock (or warrants, options or rights therefor), partnership interests or limited liability company interests, except:except that (i) the Loan Parties may pay dividends or other distributions payable to another Loan Party;; and (ii) the Loan Parties may pay dividends payable by in any fiscal quarter after the Borrower on common stock issued by Borrowers deliver their quarterly financial statements and compliance certificate pursuant to Sections 7.3.1 and 7.3.3 for the Borrower immediately preceding fiscal quarter, in an aggregate amount not to exceed 50% of the consolidated net income (computed in accordance with GAAP) of the Borrowers for such immediately preceding four fiscal quarters less any dividend payments made during such immediately preceding four fiscal quarters, provided that: (a) not to exceed an annual rate of $0.40 per share (such amount to be appropriately adjusted to reflect any stock split, reverse stock split, stock dividend no Potential Default or similar transaction occurring after the ClosingAmendment No. 1 Effective Date so that the aggregate amount of dividends permitted after such transaction is the same as the amount permitted immediately prior to such transaction) or (b) in any amount greater than $0.40 per sharethe amount permitted by the preceding subclause (a) if at the time of any such dividend payment (1) no Event of Default or Potential Default shall exist or shall result from on the date on which the Borrowers’ make such dividend payment after giving effect theretoto such dividend payment; and (b) the Borrowers shall demonstrate the fact described in clause (a) immediately above in the compliance certificate which they deliver for such fiscal quarter. (iii) Provided that no Potential Default or Event of Default exists and is continuing on the date of payment, if any Other Permitted Investment described in and permitted under Section 7.2.4(v) and (vi) is sold for cash or otherwise liquidated or repaid for cash and if the consolidated net income (computed in accordance with GAAP) of the Borrowers for the four fiscal quarters immediately preceding the date of the proposed payment is greater than zero, the Loan Parties may pay dividends (after subtracting from such proposed dividend payment the aggregate amount of dividends paid under this Section 7.2.5(iii) within the immediately preceding four fiscal quarters) in an aggregate amount less than or equal to the lesser of: (a) the excess of (1) the net cash proceeds from such sale (less the cost of disposition, if any) over (2) the Leverage Ratio at such timeInvestment Consideration paid, calculated on a Pro Forma Basis, shall not be 0.25 to 1.0 less than the maximum applicable Leverage Ratio permitted under Section 8.2.15 [Maximum Leverage Ratio] immediately prior to and after giving effect to such dividendgreater than 4.50 to 1.00; and (3) the Borrower has Availability in excess of $100,000,000 after such dividend; (iii) stock purchases incurred or redemptions given in connection with the exercise by employees or members of the board of directors of any Loan Party of any equity securities issued pursuant to an employee or board of directors equity subscription agreementsuch Permitted Investment, equity option agreement or equity ownership arrangement or other compensation plan permitted to be issued hereunder; (iv) common stock purchases or redemptions, made by the Borrower, of common stock issued by the Borrower, provided that at the time of any such purchases and redemptions, (1) no Event of Default or Potential Default shall exist or shall result from such purchases or redemptions after giving effect thereto; (2) the Leverage Ratio at such time is less than 3.5, calculated on a Pro Forma Basis, shall not be greater than 3.50 to 1.01.00; and (3b) the Borrower has Availability in excess of $100,000,000 after such purchases and redemptions; and (v) dividends or other distributions payable by the Borrower on common stock issued by the Borrower that are payable solely in common stock issued by the Borrower2,000,000.

Dividends and Related Distributions. None No Loan Party shall declare or make, directly or indirectly, any Restricted Payment, except that, so long as no Default shall have occurred and be continuing at the time of any action described below or would result therefrom: (a) each Subsidiary may make Restricted Payments to the Parent, the Guarantors and any other Person that owns an Equity Interest in such Subsidiary, ratably according to their respective holdings of the Loan Parties shall make or pay, or agree to become or remain liable to make or pay, any dividend or other distribution type of any nature (whether in cash, property, securities or otherwise) on account of or Equity Interest in respect of its shares of capital stock, partnership interests or limited liability company interests on account of the purchase, redemption, retirement or acquisition of its shares of capital stock (or warrants, options or rights therefor), partnership interests or limited liability company interests, except:which such Restricted Payment is being made; (ib) dividends the Parent and each Subsidiary may declare and make dividend payments or other distributions payable to another Loan Partysolely in the common stock or other common Equity Interests of such Person; (c) the Parent and each Subsidiary may purchase, redeem or otherwise acquire Equity Interests issued by it with the proceeds received from the substantially concurrent issue of new shares of its common stock or other common Equity Interests; and (d) the Parent may (i) declare or pay cash dividends to its stockholders and (ii) dividends payable by the Borrower on common stock purchase, redeem or otherwise acquire for cash Equity Interests issued by the Borrower (a) not to exceed an annual rate of $0.40 per share (such amount to be appropriately adjusted to reflect any stock splitit; provided, reverse stock split, stock dividend or similar transaction occurring after the ClosingAmendment No. 1 Effective Date so that the aggregate amount of dividends permitted after all such transaction is dividends, purchases, redemptions and acquisitions shall not exceed the same as the amount permitted immediately prior to such transaction) or (b) Threshold Amount in any amount greater than $0.40 per sharethe amount permitted by given fiscal year unless both immediately before and immediately after making such payment the preceding subclause (a) if at the time of any such dividend payment (1) no Event of Default or Potential Default shall exist or shall result from such dividend payment after giving effect thereto; (2) the Leverage Debt to Capitalization Ratio at such time, calculated on a Pro Forma Basis, shall not be 0.25 to 1.0 less than the maximum applicable Leverage Ratio permitted under Section 8.2.15 [Maximum Leverage Ratio] immediately prior to and after giving effect to such dividendgreater than 4.50 to 1.00; and (3) the Borrower has Availability in excess of $100,000,000 after such dividend; (iii) stock purchases or redemptions in connection with the exercise by employees or members of the board of directors of any Loan Party of any equity securities issued pursuant to an employee or board of directors equity subscription agreement, equity option agreement or equity ownership arrangement or other compensation plan permitted to be issued hereunder; (iv) common stock purchases or redemptions, made by the Borrower, of common stock issued by the Borrower, provided that at the time of any such purchases and redemptions, (1) no Event of Default or Potential Default shall exist or shall result from such purchases or redemptions after giving effect thereto; (2) the Leverage Ratio at such time is less than 3.535%, calculated on a Pro Forma Basis, shall not be greater than 3.50 to 1.01.00; and (3ii) to the Borrower has Availability extent any such dividend, purchase, redemption or acquisition would cause the aggregate amount of all such Restricted Payments in excess any fiscal year to exceed the Threshold Amount, the Parent shall have furnished to the Administrative Agent a certificate of $100,000,000 an Authorized Officer, which certificate shall calculate the Debt to Capitalization Ratio both immediately before and immediately after making such purchases and redemptions; and (v) dividends dividend, purchase, redemption or other distributions payable by acquisition, as the Borrower on common stock issued by the Borrower that are payable solely in common stock issued by the Borrowercase may be.

Dividends and Related Distributions. None No Loan Party shall, nor shall any Loan Party permit any of the Loan Parties shall make its Subsidiaries to, declare or paymake, directly or indirectly, any Restricted Payment, or agree to become or remain liable to make or pay, incur any dividend or other distribution of any nature obligation (whether in cash, property, securities contingent or otherwise) on account of or in respect of its shares of capital stockto do so, partnership interests or limited liability company interests on account of the purchase, redemption, retirement or acquisition of its shares of capital stock (or warrants, options or rights therefor), partnership interests or limited liability company interests, exceptexcept that: (ia) any Loan Party or Subsidiary may make, declare and pay lawful, cash dividends or other distributions payable to another to, or redeem any Equity Interest held by, any Loan Party; (iib) any Loan Party may make, declare or pay lawful cash dividends payable or distributions to the Excluded Subsidiaries in an aggregate amount of up to $10,000,000 over the term of the Facilities; (c) any Subsidiary of the Borrower that is not directly or indirectly wholly-owned by the Borrower on common stock issued by may make, declare and pay lawful, pro rata cash dividends, distributions and redemptions; (d) the Borrower and its Subsidiaries may make, declare and pay lawful dividends or distributions to the extent payable in Equity Interests that are not Disqualified Stock; (ae) not to exceed an annual rate the Borrower may make the Special Dividend; and (f) so long as no Default or Event of $0.40 per share (such amount to be appropriately adjusted to reflect any stock split, reverse stock split, stock dividend or similar transaction occurring after the ClosingAmendment No. 1 Effective Date so that the aggregate amount of dividends permitted after such transaction is the same as the amount permitted immediately prior to such transaction) or (b) in any amount greater than $0.40 per sharethe amount permitted by the preceding subclause (a) if Default shall exist at the time of any such dividend payment (1) no Event of Default declaration or Potential Default shall exist or shall could reasonably be expected to result from such dividend payment after giving effect thereto; dividend, distribution or redemption (2tested solely at the time of declaration of any such dividend, distribution or redemption) and the Leverage Ratio at such time, calculated on a Pro Forma Basis, Loan Parties shall not be 0.25 to 1.0 less than in compliance with the maximum applicable Leverage Ratio permitted under Section 8.2.15 [Maximum Leverage Ratio] immediately prior to and covenants set forth in Article VIII after giving effect to such dividendgreater than 4.50 to 1.00; and (3) the Borrower has Availability in excess of $100,000,000 after any such dividend; , distribution or redemption on a Pro forma Basis for the four fiscal quarter period most recently then ended for which financial statements have been delivered (iii) stock purchases or redemptions in connection with the exercise by employees or members of the board of directors of any Loan Party of any equity securities issued pursuant to an employee or board of directors equity subscription agreement, equity option agreement or equity ownership arrangement or other compensation plan permitted to be issued hereunder; (iv) common stock purchases or redemptions, made by the Borrower, of common stock issued by the Borrower, provided that tested solely at the time of declaration of any such purchases dividend, distribution or redemption), the Borrower may make, declare and redemptionspay lawful cash dividends or distributions to its shareholders or redeem capital stock in an aggregate amount not to exceed, (1i) no Event of Default or Potential Default shall exist or shall result from such purchases or redemptions after giving effect thereto; (2) when the Borrower’s Total Net Leverage Ratio at such time is greater than 4.00:1.00 on a Pro forma Basis, an amount equal to the greater of (x) 6.0% of the net cash proceeds from any public equity issuance of the Borrower’s Equity Interests or (y) 4.0% of the estimated fair market value of the Borrower’s Equity Interests (collectively, the “Permitted Additional Distributions”) or (ii) when the Borrower’s Total Net Leverage is less than 3.5, calculated or equal to 4.00:1.00 on a Pro Forma forma Basis, an unlimited amount; provided, however, that (x) the amount of any dividend or distribution that is not paid in cash but is reinvested in Equity Interests of the Borrower (other than Disqualified Stock) shall not be greater than 3.50 to 1.01.00; excluded from this calculation and (3y) redemptions of Equity Interests of the Borrower has Availability in excess of $100,000,000 after such purchases surrendered by employees and redemptions; and (v) dividends or other distributions payable by the Borrower on common stock issued by the Borrower that are payable solely in common stock issued by the Borrowerdirectors to cover withholding taxes shall be excluded from this calculation.

Dividends and Related Distributions. None No Loan Party shall declare or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that: (a) Subject to Article XII and all other terms and conditions of the Loan Parties shall Documents, each Loan Party may make or pay, or agree Restricted Payments to become or remain liable to make or pay, any dividend or other distribution of any nature (whether in cash, property, securities or otherwise) on account of or in respect of its shares of capital stock, partnership interests or limited liability company interests on account of the purchase, redemption, retirement or acquisition of its shares of capital stock (or warrants, options or rights therefor), partnership interests or limited liability company interests, except: (i) dividends or other distributions payable to another Loan Party; (iib) dividends each Subsidiary may make Restricted Payments to any Loan Party and any other Person that owns an Equity Interest in such Subsidiary, ratably according to their respective holdings of the type of Equity Interest in respect of which such Restricted Payment is being made; (c) the Parent may declare and make dividend payments or other distributions payable by solely in the common stock or other common Equity Interests of the Parent; (d) so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom, the Borrower on common stock issued by may make Specified Distributions to the Borrower Parent which in turn can made a distribution thereof to its stockholders or repurchase shares of its stock; (ae) not so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom, Restricted Payments in an amount equal to exceed an annual rate 50% of $0.40 per share (such amount to be appropriately adjusted to reflect any stock split, reverse stock split, stock dividend or similar transaction occurring after the ClosingAmendment No. 1 Effective Date so that the aggregate amount of dividends permitted after such transaction is the same as the amount permitted immediately prior to such transaction) or (b) in any amount greater than $0.40 per sharethe amount permitted by the preceding subclause (a) if accrued Special Project Available Amount at the time of any such dividend payment the declaration thereof giving effect to other contemporaneous utilizations thereof; (1f) [reserved]; (g) [reserved]; (h) the Parent may declare or pay cash dividends to its stockholders, repurchase or redeem outstanding Equity Interests in the Parent and make other Restricted Payments; provided that, (i) no Default or Event of Default shall have occurred and be continuing or Potential Default shall exist or shall would result from such dividend payment therefrom, (ii) after giving effect thereto; (2) to such Restricted Payment, the Leverage Ratio at such timeLoan Parties are in pro forma compliance with the covenants set forth in Article VIII, calculated on a Pro Forma BasisBasis as of the last day of the fiscal quarter of the Parent for which financial statements have been delivered, (iii) the Restricted Payment shall be made solely from any Excess Cash Flow not be 0.25 to 1.0 less than required for the maximum applicable Leverage Ratio permitted under Section 8.2.15 [Maximum Leverage Ratio] Mandatory Prepayment of Excess Cash Flow, (iv) immediately prior to and after giving effect to such dividendgreater Restricted Payments, the Liquidity Balance shall not be less than 4.50 to 1.00; $10,000,000, and (3v) the Borrower has Availability in excess shall have provided to the Administrative Agent a certificate of $100,000,000 after such dividend; (iii) stock purchases or redemptions in connection with the exercise by employees or members a Compliance Officer of the board of directors of any Loan Party of any equity securities issued pursuant Borrower (supported by reasonably detailed calculations) certifying as to an employee or board of directors equity subscription agreement, equity option agreement or equity ownership arrangement or other compensation plan permitted to be issued hereunder; (iv) common stock purchases or redemptions, made by the Borrower, of common stock issued by the Borrower, provided that at the time of any such purchases and redemptions, (1) no Event of Default or Potential Default shall exist or shall result from such purchases or redemptions Net Total Leverage Ratio immediately after giving effect thereto; (2) the Leverage Ratio at to such time is less than 3.5Restricted Payment, calculated measured on a Pro Forma Basis, shall not be greater than 3.50 Basis as of the last day of the most recent fiscal quarter for which financial statements have been delivered to 1.01.00; and (3) the Borrower has Availability in excess of $100,000,000 after such purchases and redemptions; and (v) dividends or other distributions payable by the Borrower on common stock issued by the Borrower that are payable solely in common stock issued by the BorrowerAdministrative Agent.

Dividends and Related Distributions. None No Loan Party shall, nor shall any Loan Party permit any of the Loan Parties shall make its Subsidiaries to, declare or paymake, directly or indirectly, any Restricted Payment, or agree to become or remain liable to make or pay, incur any dividend or other distribution of any nature obligation (whether in cash, property, securities contingent or otherwise) on account of or in respect of its shares of capital stockto do so, partnership interests or limited liability company interests on account of the purchase, redemption, retirement or acquisition of its shares of capital stock (or warrants, options or rights therefor), partnership interests or limited liability company interests, exceptexcept that: (ia) any Loan Party or Subsidiary may make, declare and pay lawful, cash dividends or other distributions payable to another to, or redeem any Equity Interest held by, any Loan Party; (iib) any Loan Party may make, declare or pay lawful cash dividends payable or distributions to the Excluded Subsidiaries in an aggregate amount of up to $10,000,000 over the term of the Facilities; (c) any Subsidiary of the Borrower that is not directly or indirectly wholly-owned by the Borrower on common stock issued by may make, declare and pay lawful, pro rata cash dividends, distributions and redemptions; (d) the Borrower and its Subsidiaries may make, declare and pay lawful dividends or distributions to the extent payable in Equity Interests that are not Disqualified Stock; and (ae) not to exceed an annual rate so long as no Default or Event of $0.40 per share (such amount to be appropriately adjusted to reflect any stock split, reverse stock split, stock dividend or similar transaction occurring after Default under the ClosingAmendment No. 1 Effective Date so that the aggregate amount of dividends permitted after such transaction is the same as the amount permitted immediately prior to such transaction) or (b) in any amount greater than $0.40 per sharethe amount permitted by the preceding subclause (a) if Loan Documents shall exist at the time of any such dividend payment (1) no Event of Default declaration or Potential Default shall exist or shall could reasonably be expected to result from such dividend payment after giving effect thereto; dividend, distribution or redemption (2tested solely at the time of declaration of any such dividend, distribution or redemption) and the Leverage Ratio at such time, calculated on a Pro Forma Basis, Loan Parties shall not be 0.25 to 1.0 less than in compliance with the maximum applicable Leverage Ratio permitted under Section 8.2.15 [Maximum Leverage Ratio] immediately prior to and covenants set forth in Article VIII after giving effect to such dividendgreater than 4.50 to 1.00; and (3) the Borrower has Availability in excess of $100,000,000 after any such dividend; , distribution or redemption on a Pro forma Basis for the four fiscal quarter period most recently then ended for which financial statements have been delivered (iii) stock purchases or redemptions in connection with the exercise by employees or members of the board of directors of any Loan Party of any equity securities issued pursuant to an employee or board of directors equity subscription agreement, equity option agreement or equity ownership arrangement or other compensation plan permitted to be issued hereunder; (iv) common stock purchases or redemptions, made by the Borrower, of common stock issued by the Borrower, provided that tested solely at the time of declaration of any such purchases dividend, distribution or redemption), the Borrower may make, declare and redemptionspay lawful cash dividends or distributions to its shareholders or redeem capital stock in an aggregate amount which when added to any such dividends, distributions and redemptions of capital stock made, declared or paid from and after January 1, 2016, is not more than the sum of $25,000,000 plus 60% of the Borrower's Consolidated net income (excluding non-cash extraordinary items such as write-downs or write-ups of assets, other than current assets) from January 1) no Event , 2016 to the date of Default or Potential Default shall exist or shall result from declaration of any such purchases dividends, distributions or redemptions after giving effect thereto(collectively, the "Permitted Additional Distributions"); provided, however, that (2x) the Leverage Ratio at such time amount of any dividend or distribution that is less not paid in cash but is reinvested in Equity Interests of the Borrower (other than 3.5, calculated on a Pro Forma Basis, Disqualified Stock) shall not be greater than 3.50 to 1.01.00; excluded from this calculation and (3y) redemptions of Equity Interests of the Borrower has Availability in excess of $100,000,000 after such purchases surrendered by employees and redemptions; and (v) dividends or other distributions payable by the Borrower on common stock issued by the Borrower that are payable solely in common stock issued by the Borrowerdirectors to cover withholding taxes shall be excluded from this calculation.

Dividends and Related Distributions. None Genesis shall not (a) declare or pay any dividends, (b) purchase, redeem, retire or otherwise acquire for value any of the Loan Parties shall make its capital stock now or payhereafter outstanding, or agree to become or remain liable to (c) make or pay, any dividend or other distribution of any nature (assets to its stockholders as such whether in cash, propertyassets or obligations of Genesis, securities (d) allocate or otherwiseotherwise set apart any sum for the payment of any dividend or distribution on, or for the purchase, redemption or retirement of, any shares of its capital stock, (e) on account or make any other distribution by return of capital or otherwise in respect of its any shares of capital stock, partnership interests or limited liability company interests on account of the purchase, redemption, retirement or acquisition of its shares of capital stock (or warrantsprovided, options or rights therefor)however, partnership interests or limited liability company interestsnotwithstanding the foregoing, except: (i) Genesis may declare and pay dividends and make distributions payable solely in its common stock, or options, warrants or other distributions payable rights to another Loan Party; purchase common stock and (ii) dividends payable by at any time that the Borrower on common Adjusted Total Debt/Cash Flow Ratio is, and has been for two consecutive fiscal quarters, less than 4.5 to 1.0, Genesis may, upon giving written notice thereof to the Administrative Agent, redeem or otherwise purchase outstanding shares of its capital stock issued by the Borrower (a) in an aggregate amount not to exceed an annual rate of Fifty Million Dollars ($0.40 per share (such amount to be appropriately adjusted to reflect any stock split, reverse stock split, stock dividend or similar transaction occurring after 50,000,000) from the ClosingAmendment No. 1 Effective Closing Date so that the aggregate amount of dividends permitted after long as such transaction is the same as the amount permitted immediately prior to such transaction) or (b) action would not result in any amount greater than $0.40 per sharethe amount permitted by the preceding subclause (a) if at the time of any such dividend payment (1) no "Event of Default or Potential Default shall exist or shall result from such dividend payment after giving effect thereto; (2) Acceleration" under the Leverage Ratio at such time, calculated on a Pro Forma Basis, shall not be 0.25 to 1.0 less than the maximum applicable Leverage Ratio permitted under Section 8.2.15 [Maximum Leverage Ratio] immediately prior to Put/Call Agreement and so long as both before and after giving effect to such dividendgreater than 4.50 to 1.00; and (3) the Borrower has Availability in excess of $100,000,000 after such dividend; (iii) stock purchases action there would exist no Default or redemptions in connection with the exercise by employees or members of the board of directors of any Loan Party of any equity securities issued pursuant to an employee or board of directors equity subscription agreement, equity option agreement or equity ownership arrangement or other compensation plan permitted to be issued hereunder; (iv) common stock purchases or redemptions, made by the Borrower, of common stock issued by the Borrower, provided that at the time of any such purchases and redemptions, (1) no Event of Default or Potential Default hereunder. Notwithstanding the preceding sentence of this Section 8.8, (a) Genesis shall exist or shall result from such purchases or redemptions be permitted to declare and pay dividends on the Designated Stock in shares of Series G Cumulative Convertible Preferred Stock of Genesis at the times, in the amounts and otherwise as provided in the Certificate of Designation and, so long as both before and after giving effect thereto; (2) thereto there would exist no Default or Event of Default hereunder, Genesis shall be permitted to declare and pay cash dividends on the Leverage Ratio Designated Stock at such time is less than 3.5the times, calculated on a Pro Forma Basis, shall not be greater than 3.50 to 1.01.00; in the amounts and otherwise as provided in the Certificate of Designation and (3b) Genesis shall be permitted to declare and pay (non-cash) PIK dividends on its Series H Cumulative Convertible Preferred Stock issued to Cypress, TPG and/or Nazem on the Borrower has Availability terms set forth in excess the Sponsor Letter of $100,000,000 after such purchases and redemptions; and (v) dividends or other distributions payable by Intent in exchange for the Borrower on common stock issued by cancellation of the Borrower that are payable solely in common stock issued by put provisions under the BorrowerPermitted Put/Call Amendment.

Dividends and Related Distributions. None The Borrower shall not, and shall not permit any of the Loan Parties shall its Subsidiaries to, make or pay, or agree to become or remain liable to make or pay, any dividend or other distribution of any nature (whether in cash, property, securities or otherwise) on account of or in respect of its their respective shares of capital stockstock or partnership interests, partnership interests as the case may be, or limited liability company interests on account of the purchase, redemption, retirement or acquisition of its their respective shares of capital stock (or warrants, options or rights therefor), ) or partnership interests or limited liability company interests, except: as the case may be, except (i) dividends or other distributions in respect of a partnership interest payable by any Subsidiary to another Loan Party; the Borrower, (ii) dividends payable by the Borrower on common solely in shares of capital stock issued of the Borrower, and (iii) up to $500,000 of distributions per year payable in the aggregate by the Subsidiaries of the Borrower (a) not which are limited liability companies or partnerships to exceed an annual rate non Affiliate members of $0.40 per share (such amount to be appropriately adjusted to reflect any stock splitlimited liability companies or non Affiliate limited partners of such partnerships, reverse stock split, stock dividend or similar transaction occurring so long as after the ClosingAmendment No. 1 Effective Date so that the aggregate amount of dividends permitted after such transaction is the same as the amount permitted immediately prior to such transaction) or (b) in any amount greater than $0.40 per sharethe amount permitted by the preceding subclause (a) if at the time of any such dividend payment (1) giving effect thereto no Event of Default or Potential Default shall exist has occurred and is continuing. Notwithstanding the foregoing, the Borrower may purchase or shall result from redeem its stock up to an aggregate of $15 million of such dividend payment after giving effect thereto; stock for the period of the Thirteenth Amendment Effective Date through June 30, 1997, up to an aggregate of $20 million (2including in such aggregate amount all purchases or redemptions in prior periods) of such stock for the Leverage Ratio at period of the Thirteenth Amendment Effective Date through September 30, 1997, and up to an aggregate of $25 million (including in such timeaggregate amount all purchases or redemptions in prior periods) of such stock for the period of the Thirteenth Amendment Effective Date through December 30, calculated on a Pro Forma Basis1997, shall not be 0.25 to 1.0 less than the maximum applicable Leverage Ratio permitted under Section 8.2.15 [Maximum Leverage Ratio] immediately prior to and provided that, after giving effect to each such dividendgreater than 4.50 purchase or redemption, no Potential Default or Event of Default has occurred and is continuing and, without limiting the generality of the foregoing, that: (x) after giving effect to 1.00each such purchase or redemption the Borrower is in compliance (and the Borrower demonstrates such compliance to the Agent in detail satisfactory to the Agent) with the Minimum Net Worth covenant set forth in Section 8.02(t); and (3y) the Borrower has Availability in excess of $100,000,000 after such dividend; (iii) stock purchases or redemptions in connection with the exercise by employees or members of the board of directors of any Loan Party of any equity securities issued pursuant to an employee or board of directors equity subscription agreement, equity option agreement or equity ownership arrangement or other compensation plan permitted to be issued hereunder; (iv) common stock purchases or redemptions, made by the Borrower, of common stock issued by the Borrower, provided that at the time of any such purchases and redemptions, (1) no Event of Default or Potential Default shall exist or shall result from such purchases or redemptions after giving effect thereto; to each such purchase or redemption the ratio of Total Indebtedness to Consolidated Cash Flow from Operations does not exceed 4.85 to 1.0 (2) the Leverage Ratio at such time is less than 3.5, calculated on a Pro Forma Basis, shall not be greater than 3.50 to 1.01.00; and (3) the Borrower has Availability demonstrates such compliance to the Agent in excess detail satisfactory to the Agent). For purposes of $100,000,000 clause (y) in the preceding sentence, Total Indebtedness shall be calculated as of each date of determination (after such purchases and redemptions; and (v) dividends giving effect to each purchase or other distributions payable by the Borrower on common stock issued by the Borrower that are payable solely in common stock issued by redemption of the Borrower's stock) and Consolidated Cash Flow from Operations shall be calculated as of each date of determination (after giving effect to each purchase or redemption of the Borrower's stock) for the four fiscal quarters then ended."

Dividends and Related Distributions. None No Loan Party shall declare or make, directly or indirectly, any Restricted Payment, except that, so long as no Default shall have occurred and be continuing at the time of any action described below or would result therefrom: (a) each Subsidiary may make Restricted Payments to the Parent, the Guarantors and any other Person that owns an Equity Interest in such Subsidiary, ratably according to their respective holdings of the Loan Parties shall make or pay, or agree to become or remain liable to make or pay, any dividend or other distribution type of any nature (whether in cash, property, securities or otherwise) on account of or Equity Interest in respect of its shares of capital stock, partnership interests or limited liability company interests on account of the purchase, redemption, retirement or acquisition of its shares of capital stock (or warrants, options or rights therefor), partnership interests or limited liability company interests, except:which such Restricted Payment is being made; (ib) dividends the Parent and each Subsidiary may declare and make dividend payments or other distributions payable to another Loan Partysolely in the common stock or other common Equity Interests of such Person; (c) the Parent and each Subsidiary may purchase, redeem or otherwise acquire Equity Interests issued by it with the proceeds received from the substantially concurrent issue of new shares of its common stock or other common Equity Interests; and (d) the Parent may (i) declare or pay cash dividends to its stockholders, (ii) dividends payable by the Borrower on common stock purchase, redeem or otherwise acquire for cash Equity Interests issued by the Borrower (a) not to exceed an annual rate of $0.40 per share (such amount to be appropriately adjusted to reflect any stock splitit; provided, reverse stock split, stock dividend or similar transaction occurring after the ClosingAmendment No. 1 Effective Date so that the aggregate amount of dividends permitted after all such transaction is dividends, purchases, redemptions and acquisitions shall not exceed the same as the amount permitted immediately prior to such transaction) or (b) Threshold Amount in any amount greater than $0.40 per sharethe amount permitted by given fiscal year unless both immediately before and immediately after making such payment the preceding subclause (a) if at the time of any such dividend payment (1) no Event of Default or Potential Default shall exist or shall result from such dividend payment after giving effect thereto; (2) the Leverage Debt to Capitalization Ratio at such time, calculated on a Pro Forma Basis, shall not be 0.25 to 1.0 is less than the maximum applicable Leverage Ratio permitted under Section 8.2.15 [Maximum Leverage Ratio] immediately prior to 35%, and after giving effect to such dividendgreater than 4.50 to 1.00; and (3) the Borrower has Availability in excess of $100,000,000 after such dividend; (iii) stock purchases or redemptions in connection with to the exercise by employees or members of the board of directors of any Loan Party of any equity securities issued pursuant to an employee or board of directors equity subscription agreement, equity option agreement or equity ownership arrangement or other compensation plan permitted to be issued hereunder; (iv) common stock purchases or redemptions, made by the Borrower, of common stock issued by the Borrower, provided that at the time of extent any such purchases dividend, purchase, redemption or acquisition would cause the aggregate amount of all such Restricted Payments in any fiscal year to exceed the Threshold Amount, the Parent shall have furnished to the Administrative Agent a certificate of an Authorized Officer, which certificate shall calculate the Debt to Capitalization Ratio both immediately before and redemptionsimmediately after making such dividend, (1) no Event of Default purchase, redemption or Potential Default shall exist or shall result from such purchases or redemptions after giving effect thereto; (2) acquisition, as the Leverage Ratio at such time is less than 3.5, calculated on a Pro Forma Basis, shall not be greater than 3.50 to 1.01.00; and (3) the Borrower has Availability in excess of $100,000,000 after such purchases and redemptions; and (v) dividends or other distributions payable by the Borrower on common stock issued by the Borrower that are payable solely in common stock issued by the Borrowercase may be.

Dividends and Related Distributions. None The Borrower shall not, and shall not permit any of the Loan Parties shall its Subsidiaries to, make or pay, or agree to become or remain liable to make or pay, any dividend or other distribution of any nature (whether in cash, property, securities or otherwise) on account of or in respect of its shares of capital stockequity interests, partnership interests or limited liability company interests on account of the purchase, redemption, retirement or acquisition of its shares of capital stock equity interests (or warrants, options or rights therefor), partnership interests or limited liability company interestsinterests (collectively, the "Restricted Payments"), except: (i) dividends or other distributions Restricted Payments payable by any Subsidiary of the Borrower to another Loan Partythe Borrower; (ii) dividends Restricted Payments payable by the Borrower on and its Subsidiaries provided that such Restricted Payments are made solely in the common stock issued of such Person making the Restricted Payment; (iii) Restricted Payments payable by the Borrower provided that: (a) not to exceed an annual rate the Debt/EBITDA Ratio as of $0.40 per share (such amount to be appropriately adjusted to reflect any stock split, reverse stock split, stock dividend or similar transaction occurring after the ClosingAmendment No. 1 Effective Date so that last day of the aggregate amount of dividends permitted after such transaction is the same as the amount permitted fiscal quarter ending immediately prior to such transaction) Restricted Payment, giving pro forma effect to such Restricted Payment as it if it had occurred on the last day of such fiscal quarter, is less than or equal to 3.00 to 1.00; (b) in any amount the Unused Revolving Credit Commitment immediately after giving effect to such Restricted Payment is greater than or equal to $0.40 per sharethe amount permitted by the preceding subclause 15,000,000; and (a) if at the time of any such dividend payment (13) no Event of Default shall have occurred and be continuing at the time of such proposed Restricted Payment or Potential Default shall exist or shall would result from such dividend payment after giving effect theretotherefrom; (2) the Leverage Ratio at such time, calculated on a Pro Forma Basis, shall not be 0.25 to 1.0 less than the maximum applicable Leverage Ratio permitted under Section 8.2.15 [Maximum Leverage Ratio] immediately prior to and after giving effect to such dividendgreater than 4.50 to 1.00; and (3) the Borrower has Availability in excess of $100,000,000 after such dividend; (iii) stock purchases or redemptions in connection with the exercise by employees or members of the board of directors of any Loan Party of any equity securities issued pursuant to an employee or board of directors equity subscription agreement, equity option agreement or equity ownership arrangement or other compensation plan permitted to be issued hereunder;and (iv) common stock purchases or redemptions, made by the Borrower, of common stock issued by the Borrower, provided that at the time of any such purchases and redemptions, (1) no Event of Default or Potential Default shall exist or shall result from such purchases or redemptions after giving effect thereto; (2) the Leverage Ratio at such time is less than 3.5, calculated on a Pro Forma Basis, shall not be greater than 3.50 to 1.01.00; and (3) the Borrower has Availability in excess of $100,000,000 after such purchases and redemptions; and (v) dividends or other distributions Restricted Payments payable by the Borrower to NACCO (a) in respect of the Borrower’s allocable share of NACCO's overhead and other selling, general and administrative expenses (including legal, accounting, other professional fees and costs) incurred in the ordinary course of business, (b) in respect of liabilities of NACCO up to, but not exceeding $5,000,000 for any twelve-month period, arising from, in connection with or relating to the closing of certain mining operations of Bellaire Corporation, (c) in respect of amounts due to NACCO under the Tax Sharing Agreement and/or Tax Allocation Agreement and (d) in respect of state taxes paid by NACCO on common stock issued by behalf of the Borrower that are payable solely in common stock issued by the Borrowerand its Subsidiaries.

Dividends and Related Distributions. None of the Loan Parties The Borrower shall not, and ----------------------------------- shall not permit any Subsidiary to, declare or make or payany Stock Payment, or agree to agree, become or remain liable to make or pay, any dividend or other distribution of any nature (whether in cash, property, securities contingently or otherwise) to do any of the foregoing, except as follows: (a) A Subsidiary may declare and make Stock Payments so long as the Borrower receives its ratable share of such Stock Payments. (b) The Borrower may from time to time declare and make Stock Payments if such Stock Payment is payable solely in shares of capital stock (or options, warrants or rights therefor) of the Borrower. (c) The Borrower may from time to time declare and make cash Stock Payments on account of a dividend on, or in respect of its shares of capital stock, partnership interests or limited liability company interests on account of the purchase, redemption, retirement or acquisition of, its capital stock, if on the date of its shares such payment (or, in the case of capital stock a dividend, on the date of declaration) (or warrants, options or rights therefor), partnership interests or limited liability company interests, except:the "determination date"): (i) dividends The aggregate amount of all Stock Payments declared or other distributions payable made or to another Loan Partybe made under this Section 7.6(c) in the fiscal year of the Borrower containing the determination date, plus the proposed Stock Payment, does not exceed 10% of consolidated net income for the last complete fiscal year before the fiscal year containing the determination date; (ii) dividends payable by the Borrower on common stock issued by the Borrower (a) not to exceed an annual rate of $0.40 per share (such amount to be appropriately adjusted to reflect any stock split, reverse stock split, stock dividend or similar transaction occurring after the ClosingAmendment No. 1 Effective Date so that the The aggregate amount of dividends permitted after such transaction all Stock Payments declared or made from the date hereof to and including the determination date, plus the proposed Stock Payment, does not exceed 20% of consolidated net income from the first day of the fiscal year in which this Agreement is made to and including the same last complete fiscal quarter before the determination date, considered as the amount permitted immediately prior to such transactiona single accounting period; (iii) or (b) in any amount greater than $0.40 per sharethe amount permitted by the preceding subclause (a) if at the time of any such dividend payment (1) no No Event of Default or Potential Default shall exist at the determination date or shall result from such dividend payment after giving effect thereto; (2) the Leverage Ratio at such time, calculated on a Pro Forma Basis, shall not be 0.25 to 1.0 less than the maximum applicable Leverage Ratio permitted under Section 8.2.15 [Maximum Leverage Ratio] immediately prior to thereafter and after giving effect to such dividendgreater than 4.50 to 1.00proposed declaration (for this purpose treating a dividend as made on the date declared), purchase, redemption, retirement or acquisition; and (3) the Borrower has Availability in excess of $100,000,000 after such dividend; (iii) stock purchases or redemptions in connection with the exercise by employees or members of the board of directors of any Loan Party of any equity securities issued pursuant to an employee or board of directors equity subscription agreement, equity option agreement or equity ownership arrangement or other compensation plan permitted to be issued hereunder;and (iv) common stock purchases or redemptionsThe Agent receives, made with a copy for each Issuing Bank and each Lender, not later than the Business Day after the determination date a certificate signed by a Responsible Officer of the Borrower, dated such determination date, describing such Stock Payment, certifying that such Stock Payment is in compliance with the provisions of common stock issued by this Section 7.6(c), and including a statement in reasonable detail of the Borrower, provided that at the time of any such purchases information and redemptions, (1) no Event of Default or Potential Default shall exist or shall result from such purchases or redemptions after giving effect thereto; (2) the Leverage Ratio at such time is less than 3.5, calculated on a Pro Forma Basis, calculations necessary to establish compliance with this Section 7.6(c). The Borrower shall not be greater declare any dividend payable later than 3.50 to 1.01.00; and (3) the Borrower has Availability in excess of $100,000,000 three days after such purchases and redemptions; and (v) dividends or other distributions payable by the Borrower on common stock issued by the Borrower that are payable solely in common stock issued by the Borrowerdeclaration.

Dividends and Related Distributions. None No Loan Party shall, nor shall any Loan Party7.6 permit any of its Subsidiaries to, declare or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that: any Loan Party or Subsidiary may make, declare and pay lawful, cash dividends(a) or distributions to, or redeem any Equity Interest held by, any Loan Party; any Loan Party may make, declare or pay lawful cash dividends or distributions to(b) the Excluded Subsidiaries in an aggregate amount of up to $10,000,000 over the term of the Facilities; any Subsidiary of the Borrower that is not directly or indirectly wholly-owned by(c) the Borrower may make, declare and pay lawful, pro rata cash dividends, distributions and redemptions; the Borrower and its Subsidiaries may make, declare and pay lawful dividends or(d) distributions to the extent payable in Equity Interests that are not Disqualified Stock; the Borrower may make the Special Dividend; and(e) so long as no Default or Event of Default shall exist at the time of such declaration(f) or could reasonably be expected to result from such dividend, distribution or redemption (tested solely at the time of declaration of any such dividend, distribution or redemption) and the Loan Parties shall make be in compliance with the covenants set forth in Article VIII after giving effect to any such dividend, distribution or payredemption on a Pro forma Basis for the four fiscal quarter period most recently then ended for which financial statements have been delivered (tested solely at the time of declaration of any such dividend, distribution or agree redemption), the Borrower may make, declare and pay lawful cash dividends or distributions to become its shareholders or remain liable redeem capital stock in an aggregate amount not to make exceed, (i) when the Borrower’s Total Net Leverage Ratio is greater than 4.00:1.00 on a Pro forma Basis, an amount equal to the greater of (x) 6.0% of the net cash proceeds from any public equity issuance of the Borrower’s Equity Interests or pay(y) 4.0% of the estimated fair market value of the Borrower’s Equity Interests (collectively, the “Permitted Additional Distributions”) or (ii) when the Borrower’s Total Net Leverage is less than or equal to 4.00:1.00 on a Pro forma Basis, an unlimited amount; provided, however, that (x) the amount of any dividend or distribution that is not paid in cash but is reinvested in Equity Interests of the Borrower (other distribution than Disqualified Stock) shall be excluded from this calculation and (y) redemptions of Equity Interests of the Borrower surrendered by employees and directors to cover withholding taxes shall be excluded from this calculation. Liquidations, Mergers, Consolidations, Acquisitions. No Loan Party shall, nor shall7.7 any Loan Party permit any of its Subsidiaries to, (x) dissolve, liquidate or wind-up its affairs, (y) become a party to any merger or consolidation, or (z) acquire by purchase, lease or otherwise all or substantially all of the assets or Equity Interests of any nature other Person or group of related Persons; except: [reserved]; (whether in casha) any Subsidiary may combine, propertymerge or consolidate with or into (i) any Loan(b) Party; provided, securities that a Loan Party (or the Borrower, if the Borrower is a party) shall be the continuing or surviving Person, and (ii) any one or more other Subsidiaries; 108 any Subsidiary may Dispose of all or substantially all of its assets (upon voluntary(c) liquidation or otherwise) on account to another Subsidiary; provided, that if the transferor in such a transaction is a Loan Party, then the transferee must be a Loan Party; any Subsidiary that is not a Loan Party may dissolve, liquidate or wind-up its(d) affairs, as long as (i) no Event of Default would result therefrom and (ii) such Subsidiary dissolves, liquidates or winds-up into another Subsidiary or a Loan Party; any Loan Party may dissolve, liquidate or wind-up its affairs, as long as (i) no(e) Event of Default exists or would result therefrom and (ii) such Loan Party dissolves, liquidates or winds-up into another Loan Party; and any Loan Party and any Subsidiary may enter into any transactions permitted(f) under Section 7.5 or Section 7.8. Any reference in this Section 7.7 or in Section 7.8 to a combination, merger, consolidation, Disposition, dissolution, liquidation or transfer shall be deemed to apply to a Division of or in respect by a limited liability company, or an allocation of assets to a series of limited liability companies (or the unwinding of such a division or allocation) as if it were a combination, merger, consolidation, Disposition, dissolution, transfer or similar term, as applicable, to of or with a separate Person. Any Division of a limited liability company shall constitute a separate Person hereunder (and each Division of any limited liability company that is a like term shall also constitute such a Person or entity). Dispositions of Assets or Subsidiaries. No Loan Party shall, nor shall any Loan Party7.8 permit any of its shares Subsidiaries to, Dispose of, voluntarily or involuntarily, any of its properties or assets, tangible or intangible (including sale, assignment, discount or other Disposition of accounts, contract rights, chattel paper, equipment or general intangibles with or without recourse or of capital stock, shares of beneficial interest, partnership interests or limited liability company interests on account or other Equity Interests of the purchase, redemption, retirement or acquisition a Subsidiary of its shares of capital stock (or warrants, options or rights thereforsuch Loan Party), partnership interests or limited liability company interests, except: : transactions involving the sale of inventory to customers in the ordinary course of(a) business; (i) dividends any termination of any lease or other distributions payable sublease in the ordinary course of business,(b) (ii) any expiration of any option agreement in respect of real or personal property and (iii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) in the ordinary course of business; any Disposition of assets by any Loan Party to another Loan Party;(c) any Disposition of Cash Equivalents in the ordinary course of business(d) any Disposition of obsolete or worn-out assets in the ordinary course of business(e) that are no longer necessary or required in the conduct of such Loan Party; ’s or such Subsidiary’s business; any Disposition (i) permitted by Section 7.7 or (ii) dividends payable by the Borrower on common stock issued by the Borrower (a) not pursuant to exceed an annual rate of $0.40 per share (such amount to be appropriately adjusted to reflect any stock split, reverse stock split, stock dividend or similar transaction occurring after the ClosingAmendment No. 1 Effective Date so that the aggregate amount of dividends permitted after such transaction is the same as the amount permitted immediately prior to such transaction) or (b) in any amount greater than $0.40 per sharethe amount permitted by the preceding subclause (a) if at the time of any such dividend payment (1) no Event of Default or Potential Default shall exist or shall result from such dividend payment after giving effect thereto; (2a Casualty Event;(f) the Leverage Ratio at such timeDisposition of assets on the Closing Date or any Subsequent Closing (as such(g) term is defined in the T-Mobile Asset Purchase Agreement) pursuant to, calculated on a Pro Forma Basis, shall not be 0.25 to 1.0 less than the maximum applicable Leverage Ratio permitted under Section 8.2.15 [Maximum Leverage Ratio] immediately prior to and after giving effect to such dividendgreater than 4.50 to 1.00; and (3) the Borrower has Availability in excess of $100,000,000 after such dividend; (iii) stock purchases or redemptions in connection with the exercise by employees or members consummation of the board transactions contemplated by, the T-Mobile Asset Purchase Agreement and the Disposition of directors of any Loan Party of any equity securities issued pursuant to an employee or board of directors equity subscription agreement, equity option agreement or equity ownership arrangement or other compensation plan permitted to be issued hereunder; (iv) common stock purchases or redemptions, made by the Borrower, of common stock issued by the Borrower, provided that at the time of any such purchases and redemptions, (1) no Event of Default or Potential Default shall exist or shall result from such purchases or redemptions after giving effect thereto; (2) the Leverage Ratio at such time is less than 3.5, calculated on a Pro Forma Basis, shall not be greater than 3.50 to 1.01.00; and (3) the Borrower has Availability in excess of $100,000,000 after such purchases and redemptions; and (v) dividends or other distributions payable by the Borrower on common stock issued by the Borrower that are payable solely in common stock issued by the Borrower.T-Mobile 109

Dividends and Related Distributions. None The Borrower shall not, and shall not permit any of the Loan Parties shall its Subsidiaries to, make or pay, or agree to become or remain liable to make or pay, any dividend or other distribution of any nature (whether in cash, property, securities or otherwise) on account of or in respect of its shares of capital stockequity interests, partnership interests or limited liability company interests on account of the purchase, redemption, retirement or acquisition of its shares of capital stock equity interests (or warrants, options or rights therefor), partnership interests or limited liability company interestsinterests (collectively, the "Restricted Payments"), except: (i) dividends or other distributions Restricted Payments payable by any Subsidiary of the Borrower to another Loan Partythe Borrower; (ii) dividends Restricted Payments payable by the Borrower on and its Subsidiaries provided that such Restricted Payments are made solely in the common stock issued of such Person making the Restricted Payment; (iii) Restricted Payments payable by the Borrower provided that prior to making such Restricted Payment the Borrower shall deliver to the Administrative Agent a distribution compliance certificate in the form of Exhibit 8.2.5 that demonstrates that: (a) not to exceed an annual rate of $0.40 per share (such amount to be appropriately adjusted to reflect any stock splitif, reverse stock split, stock dividend or similar transaction occurring after the ClosingAmendment No. 1 Effective Date so that the aggregate amount of dividends permitted after such transaction is the same as the amount permitted immediately prior to such transaction) or (b) in any amount greater than $0.40 per sharethe amount permitted by the preceding subclause (a) if at the time of any such dividend payment (1) no Event of Default or Potential Default shall exist or shall result from such dividend payment after giving effect thereto; (2) the Leverage Ratio at such time, calculated on a Pro Forma Basis, shall not be 0.25 to 1.0 less than the maximum applicable Leverage Ratio permitted under Section 8.2.15 [Maximum Leverage Ratio] immediately prior to and after giving effect to such dividendgreater than 4.50 to 1.00; and (3) Restricted Payment, the Borrower has Availability in excess pro forma Debt/EBITDA Ratio as of $100,000,000 after such dividend; (iii) stock purchases or redemptions in connection with the exercise by employees or members of the board of directors of any Loan Party of any equity securities issued pursuant to an employee or board of directors equity subscription agreement, equity option agreement or equity ownership arrangement or other compensation plan permitted to be issued hereunder; (iv) common stock purchases or redemptions, made by the Borrower, of common stock issued by the Borrower, provided that at the time of any such purchases and redemptions, (1) no Event the date that Restricted Payment is made with respect to the determination of Default or Potential Default shall exist or shall result from such purchases or redemptions after giving effect thereto; Consolidated Debt, and (2) the Leverage Ratio at last day of the fiscal quarter ending immediately prior to the date such time Restricted Payment is made with respect to the determination of Consolidated EBITDA, is less than 3.5or equal to 2.00 to 1.00, calculated on a Pro Forma Basis, shall not be then the pro forma Availability plus unrestricted cash of the Borrower immediately after giving effect to such Restricted Payment is greater than 3.50 or equal to 1.01.00; $15,000,000, and (3b) if, immediately after giving effect to such Restricted Payment, the pro forma Debt/EBITDA Ratio as of (1) the date that such Restricted Payment is made with respect to the determination of Consolidated Debt, and (2) the last day of the fiscal quarter ending immediately prior to the date such Restricted Payment is made with respect to the determination of Consolidated EBITDA, is greater than to 2.00 to 1.00, then (A) the Fixed Charge Coverage Ratio as of the last day of the fiscal quarter ending immediately prior to such Restricted Payment, giving pro forma effect to such Restricted Payment as if it had occurred on the last day of such fiscal quarter, is greater than or equal to 1.10 to 1.00, and (B) the pro forma Availability plus unrestricted cash of the Borrower has Availability in excess of immediately after giving effect to such Restricted Payment is greater than or equal to $100,000,000 after such purchases and redemptions15,000,000; and (v) dividends or other distributions payable by the Borrower on common stock issued by the Borrower that are payable solely in common stock issued by the Borrower.

Dividends and Related Distributions. None of the No Loan Parties Party shall, nor shall make any Loan Party permit any Restricted Subsidiary to, declare or paymake, directly or indirectly, any Restricted Payment, or agree to become or remain liable to make or pay, incur any dividend or other distribution of any nature obligation (whether in cash, property, securities contingent or otherwise) on account to do so, except that: (a) Any Loan Party or Restricted Subsidiary may make Restricted Payments to any Loan Party that owns an Equity Interest in such Loan Party or Restricted Subsidiary, ratably according to their respective holdings of or the type of Equity Interest in respect of its shares which such Restricted Payment is being made; (b) So long as no Event of capital stockDefault exists immediately before or will result immediately after giving effect to such Restricted Payment, partnership interests the Borrower or limited liability company interests on account of the purchase, redemption, retirement or acquisition of its shares of capital stock (or warrants, options or rights therefor), partnership interests or limited liability company interests, except: any Restricted Subsidiaries may (i) declare or pay cash dividends or other distributions payable to another Loan Party; its members and (ii) dividends payable by the Borrower on common stock purchase, redeem or otherwise acquire for cash Equity Interests issued by it, in each case, in connection with (x) the Borrower termination of an employee or pursuant to any board approved plan, or (ay) not the exercise of options to exceed an annual rate purchase the Borrower’s capital stock or the vesting of $0.40 per share (other equity awards if such amount Equity Interests represent a portion of the exercise price of such options or taxes payable in connection with the vesting of such awards, in each case to be appropriately adjusted the extent that such declarations, payments, purchases, redemptions, or acquisition, together with all other declarations, payments, purchases, redemptions, or acquisition pursuant to reflect any stock split, reverse stock split, stock dividend or similar transaction occurring after the ClosingAmendment No. 1 Effective Date so that the aggregate amount of dividends permitted after such transaction is the same as the amount permitted immediately prior to such transaction) or this clause (b) in any the preceding twelve months, do not exceed in the aggregate amount the greater than of (i) $0.40 per sharethe amount 5,000,000 and (ii) 7.5% of EBITDA of the Borrower and the Restricted Subsidiaries for the Test Period; (c) Any Restricted Payment not otherwise permitted by the preceding subclause this Section 7.6, provided that, (a) if at the time of any such dividend payment (1i) no Event of Default exists immediately before or Potential Default shall exist or shall will result from such dividend payment after giving effect thereto; (2) the Leverage Ratio at such time, calculated on a Pro Forma Basis, shall not be 0.25 to 1.0 less than the maximum applicable Leverage Ratio permitted under Section 8.2.15 [Maximum Leverage Ratio] immediately prior to and after giving effect to such dividendgreater than 4.50 Restricted Payment, (ii) the Borrower shall be in compliance on a pro forma basis immediately after giving effect to 1.00; such Restricted Payment with Article VIII, and (iii) at the time any such Restricted Payment is made, (I) the sum of (1) the aggregate amount of such Restricted Payment, plus (2) any prior Restricted Payments made pursuant to this Section 7.6(c), plus (3) any Investment made pursuant to Section 7.5(o) (excluding all such prior Investments made by the Borrower has Availability or its Subsidiaries in excess Unrestricted Subsidiaries which subsequent to the date of such Investments have been re-designated as (and at the time of such Restricted Payment are designated as) Restricted Subsidiaries), does not exceed (II) the greater of (i) $100,000,000 after such dividend30,000,000 and (ii) 35% of EBITDA of the Borrower and the Restricted Subsidiaries for the Test Period; (iiid) stock purchases or redemptions any other Restricted Payment to the extent that such Restricted Payment, together with all other Restricted Payments pursuant to this clause (d) in connection with the exercise by employees or members preceding twelve months, does not exceed in the aggregate amount the greater of (i) $30,000,000 and (ii) 35% of EBITDA of the board of directors of any Loan Party of any equity securities issued pursuant to an employee or board of directors equity subscription agreement, equity option agreement or equity ownership arrangement or other compensation plan permitted to be issued hereunder;Borrower and the Restricted Subsidiaries for the Test Period; and (ive) common stock purchases or redemptions, any additional Restricted Payment (other than a Restricted Payment made by the Borrower) so long as (i) immediately before and immediately after giving effect to such Restricted Payment, of common stock issued by the Borrower, provided that at the time of any such purchases and redemptions, (1) no Default or Event of Default exists or Potential Default shall exist or shall result from such purchases or redemptions will exist, and (ii) immediately after giving effect thereto; (2) to such Restricted Payment, the Total Net Leverage Ratio at such time is less than 3.5, calculated on a Pro Forma Basis, shall for the Test Period does not be greater than 3.50 to 1.01.00; and (3) the Borrower has Availability in excess of $100,000,000 after such purchases and redemptions; and (v) dividends or other distributions payable by the Borrower on common stock issued by the Borrower that are payable solely in common stock issued by the Borrowerexceed 2.25:1.00.