Common use of Dividends and Related Distributions Clause in Contracts

Dividends and Related Distributions. The Borrower 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 equity interests, partnership interests or limited liability company interests on account of the purchase, redemption, retirement or acquisition of its shares of equity interests (or warrants, options or rights therefor), partnership interests or limited liability company interests (collectively, the "Restricted Payments"), except: (i) Restricted Payments payable by any Subsidiary of the Borrower to the Borrower; (ii) Restricted Payments payable by the Borrower and its Subsidiaries provided that such Restricted Payments are made solely in the common stock of such Person making the Restricted Payment; (iii) Restricted Payments payable by the Borrower provided that: (1) the Debt/EBITDA 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 it if it had occurred on the last day of such fiscal quarter, is less than or equal to 3.00 to 1.00; (2) the Unused Revolving Credit Commitment immediately after giving effect to such Restricted Payment is greater than or equal to $15,000,000; and (3) no Event of Default shall have occurred and be continuing at the time of such proposed Restricted Payment or would result therefrom; and (iv) Restricted Payments payable by the Borrower to NACCO (i) 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, (ii) 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, (iii) in respect of amounts due to NACCO under the Tax Sharing Agreement and (iv) in respect of state taxes paid by NACCO on behalf of the Borrower and its Subsidiaries.

Dividends and Related Distributions. The Borrower 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 equity interestscapital stock, partnership interests or limited liability company interests on account of the purchase, redemption, retirement or acquisition of its shares of equity interests capital stock (or warrants, options or rights therefor), partnership interests or limited liability company interests (collectively, the "Restricted Payments")interests, except: (i) Restricted Payments dividends or other distributions payable by (A) from any Loan Party to another Loan Party, (B) from any Foreign Subsidiary to any Loan Party or any of its Subsidiaries and (C) from any Subsidiary of the Borrower a Loan Party to the Borrowerany Loan Party; (ii) Restricted Payments payable any purchase, redemption or retirement in connection with a transaction permitted by the Borrower and its Subsidiaries provided that such Restricted Payments are made solely in the common stock of such Person making the Restricted PaymentSection 8.2.6 [Liquidations, Mergers, Consolidations, Acquisitions]; (iii) Restricted Payments payable by the any purchase, redemption or retirement of equity interests of any Borrower provided that: so long as (1A) the Debt/EBITDA Ratio as amount of the last day of the such purchases, redemptions or retirements does not exceed $50,000,000 in any fiscal quarter ending immediately prior or $150,000,000 in any fiscal year; provided that for the period commencing December 1, 2013 through and including March 31, 2014 Borrowers may make purchases, redemptions or retirements in an amount not to such Restricted Paymentexceed $100,000,000 subject to the foregoing fiscal year limitation and the other conditions contained herein, 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; (2) the Unused Revolving Credit Commitment immediately after giving effect to such Restricted Payment is greater than or equal to $15,000,000; and (3B) no Event of Default shall have occurred and be continuing at the time of and after giving Pro Forma effect to such proposed Restricted Payment purchase, redemption or retirement, (I) no Potential Default or Event of Default has occurred and is continuing or would result therefromoccur, and (II) the difference between the Revolving Facility Usage and the aggregate Revolving Credit Commitments is not less than $25,000,000; (iv) exclusive of any purchases, redemptions or retirements made pursuant to clause (iii) above, any purchase, redemption or retirement of equity interests of Crocs made at any time with proceeds of the Preferred Stock Issuance; and (iv) Restricted Payments payable by the Borrower to NACCO (i) in respect regularly scheduled quarterly dividends to the holders of the Borrower’s allocable share preferred stock issued pursuant to the Preferred Stock Issuance in substantially the form of NACCO's overhead the Certificate of Designations of Series A Convertible Preferred Stock delivered to Agent on the Third Amendment Date, in an amount not to exceed 6% per annum, and other selling, general and administrative expenses (including legal, accounting, other professional fees and costs) incurred in the ordinary course of business, (ii) in respect the event Borrowers fail to pay the regularly scheduled quarterly dividends referenced in clause (v)(i) above, regularly scheduled quarterly dividends to the holders of liabilities the preferred stock issued pursuant to the Preferred Stock Issuance in substantially the form of NACCO up tothe Certificate of Designations of Series A Convertible Preferred Stock delivered to Agent on the Third Amendment Date, but at a default or penalty rate in an amount not exceeding $5,000,000 for any twelve-month periodto exceed 8% per annum, arising fromso long as, in connection with or relating each case, at the time of and after giving Pro Forma effect to the closing making of certain mining operations such dividend no Potential Default or Event of Bellaire Corporation, Default has occurred and is continuing or would occur (iiid) in respect of amounts due to NACCO under the Tax Sharing Agreement and (iv) in respect of state taxes paid by NACCO on behalf of the Borrower and its Subsidiaries.Section 8.2.15

Dividends and Related Distributions. The Borrower shall not, and shall not permit any (a) Prior to the consummation of its Subsidiaries toa Qualified IPO Transaction, make or payany Restricted Payment, or agree to become or remain liable to make or payany Restricted Payment, any dividend except (a) dividends or other distribution of any nature distributions payable to another Loan Party, (whether b) Permitted Tax Distributions, (c) dividends or distributions declared or made by a Loan Party wholly in cash, property, securities or otherwise) on account of or in respect the form of its shares Equity Interests, and (d) so long as no Potential Default or Event of equity interestsDefault has occurred and is continuing or would result therefrom at the time of declaration thereof, partnership interests the Borrower or limited liability company interests on account of the purchase, redemption, retirement or acquisition any of its shares Subsidiaries may declare and make Restricted Payments. (b) After the consummation of equity interests a Qualified IPO Transaction, make any Restricted Payment, or agree to become or remain liable to make any Restricted Payment, except (a) dividends or warrants, options or rights thereforother distributions payable to another Loan Party (other than Holdings), partnership interests or limited liability company interests (collectivelyb) Permitted Tax Distributions made by the Borrower, the "Restricted Payments"), except: (i) Restricted Payments dividends or other distributions payable by any Subsidiary of the Borrower to the Borroweranother Loan Party (other than to Holdings); (ii) Restricted Permitted Tax Distributions, Permitted Parent Payments and, solely to the extent necessary for Holdings to make payments when due and payable by pursuant to the Borrower and its Subsidiaries provided that such Restricted Tax Receivable Agreement (but excluding any Early Termination Payments are made solely (as defined in the common stock of such Person making the Restricted PaymentTax Receivable Agreement), cash distributions by Borrower to Holdings; (iiic) Restricted Payments payable dividends oriii) Borrower may make cash distributions made by a Loan Party wholly in the Borrower provided that: formor payments to Holdings and the other holders of its Equity Interests, and (1d) the Debt/EBITDA Ratio so long as if no Potential Default or Event of the last day of the fiscal quarter ending immediately prior to such Restricted PaymentDefault has occurred and is continuing or would result therefrom, and if after giving pro forma effect to such Restricted Payment as it if it had occurred on cash distribution, the last day aggregate amount of such fiscal quarter, is less than or equal to 3.00 to 1.00; (2) the Unused Revolving Credit Commitment immediately after giving effect to such Restricted Payment is greater than or equal to $15,000,000; cash distributions and (3) no Event of Default shall have occurred and be continuing at the time of such proposed Restricted Payment or would result therefrom; and (iv) Restricted Payments payable payments made by the Borrower to NACCO during the four fiscal quarter period ending on the most recently completed fiscal quarter-end date (itogether with the proposed cash distribution) in respect would not exceed 30% of Consolidated EBITDA for 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 four fiscal quarter period ending on the ordinary course of business, (ii) in respect of liabilities of NACCO up to, but not exceeding $5,000,000 for any twelvemost recently completed fiscal quarter-month period, arising from, in connection with or relating to the closing of certain mining operations of Bellaire Corporation, (iii) in respect of amounts due to NACCO under the Tax Sharing Agreement and (iv) in respect of state taxes paid by NACCO on behalf of the Borrower and its Subsidiaries.end date;

Dividends and Related Distributions. The Borrower No Loan Party shall, nor shall not, and shall not any Loan Party permit any of its Subsidiaries to, make 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) Borrower and 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 or the type of Equity Interest in respect of its shares of equity interests, partnership interests or limited liability company interests on account of the purchase, redemption, retirement or acquisition of its shares of equity interests (or warrants, options or rights therefor), partnership interests or limited liability company interests (collectively, the "which such Restricted Payments"), except: (i) Restricted Payments payable by any Subsidiary of the Borrower to the BorrowerPayment is being made; (iib) Restricted Payments the Parent and each Subsidiary may declare and make dividend payments or other distributions payable by the Borrower and its Subsidiaries provided that such Restricted Payments are made solely in the common stock or other common Equity Interests of such Person making the Restricted PaymentPerson; (iii) Restricted Payments payable by the Borrower provided that: (1c) the Debt/EBITDA Ratio 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) so long 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 it if it had occurred on the last day of such fiscal quarter, is less than no Default or equal to 3.00 to 1.00; (2) the Unused Revolving Credit Commitment immediately after giving effect to such Restricted Payment is greater than or equal to $15,000,000; and (3) no Event of Default under the Loan Documents shall have occurred and be continuing exist at the time of such proposed Restricted Payment declaration or would could reasonably be expected to result therefrom; 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 be in compliance with the covenants set forth in Article VIII after giving effect to 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 (tested solely at the time of declaration of any such dividend, distribution or redemption), (i) during the calendar year ending December 31, 2017, the Parent may make, declare and pay lawful cash dividends or distributions to its shareholders or redeem capital stock in an aggregate amount not to exceed $3,000,000, and (ivii) Restricted Payments payable by during the Borrower calendar year ending December 31, 2018 and thereafter, the Parent may make, declare and pay lawful cash dividends or distributions to NACCO its shareholders or redeem capital stock in an aggregate amount not to exceed in any calendar year the greater of (A) $ 7,000,000 and (B) 50% of the Cash Flow Available for Dividends for the immediately preceding calendar year; provided, further, in case of subclauses (i) 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, (ii) of this clause (d), that the amount of any dividend or distribution that is not paid in respect cash but is reinvested in Equity Interests in the form 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, (iii) in respect of amounts due to NACCO under the Tax Sharing Agreement and (iv) in respect of state taxes paid by NACCO on behalf common stock of the Borrower and its SubsidiariesParent shall be excluded from this calculation.

Dividends and Related Distributions. (a) The Borrower Company 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 equity interestscapital stock, partnership interests or limited liability company interests or on account of the purchase, redemption, retirement or acquisition of its shares of equity capital stock, partnership interests or limited liability company interests (or warrants, options or rights therefor)) or make any Management Fee payment, partnership interests or limited liability company interests (collectively, the "Restricted Payments"), exceptexcept that: (i) Restricted Payments so long as (A) no Potential Default or Event of Default is in existence or would result therefrom and (B) the amount at the time credited to the Debt Service Reserve Account shall be at least equal to the Debt Service Reserve Requirement at such time, the Company may (1) on the Closing Date, make a distribution of $8,500,000 to Parent from the proceeds of the sale of the Notes, (2) upon receipt by the Company of the NRGT Reimbursement in an amount equal to or greater than $1,500,000, make a distribution of $1,500,000 to Parent and (3) during the period of 15 Business Days next following each Payment Date, make a distribution to Parent and make the Management Fee payment payable in respect of the quarterly fiscal period ended on or closest to such Payment Date (including accrued Management Fee payments, if any, for prior quarterly fiscal periods which remain unpaid), in an amount not exceeding, in the aggregate for such distribution and Management Fee payment (including accrued Management Fee payments for prior periods), Excess Cash Flow as of such Payment Date; provided, that the amount of Excess Cash Flow as of each Payment Date, and the amount so distributable pursuant to this sub-clause (2) on the basis of the computation of such Excess Cash Flow, shall be subject to adjustment pursuant to Section 10.5(b); and (ii) any Subsidiary of the Company may make dividends and distributions to the Company or to any other Subsidiary in respect of Equity Interests of such Subsidiary owned by the Company or such other Subsidiary, as the case may be. The Company shall not and shall not permit any of its Subsidiaries to enter into any contract or agreement which restricts in any manner the payment by any Subsidiary of the Borrower Company of dividends or distributions to the Borrower;Company or any other Subsidiary which shall own Equity Interests of such Subsidiary; provided, however, that the Company and TWCC may enter into the NRGT Documents, notwithstanding the potential restrictive effect thereof on the payment of dividends and distributions by TWCC. (b) The distributions and Management Fee payments made by the Company to the Parent pursuant to sub-clause (i)(2) of Section 10.5(a) from Excess Cash Flow as of each Payment Date in any fiscal year shall be subject to adjustment in accordance with the further provisions of this Section 10.5(b). Following the completion of each fiscal year of the Company, the amount of Excess Cash Flow as of each Payment Date in such fiscal year shall be recalculated based upon the annual audited financial statements of the Obligors for such fiscal year. For this purpose, Available Cash and Excess Cash Flow as of each such Payment Date shall be recomputed in accordance with the definitions of “Available Cash” and “Excess Cash Flow” set forth in Schedule B, in each case using the actual numbers for the applicable quarterly period derived from such audited financial statements. Based on such recomputations, as promptly as practicable, but in any event not later than contemporaneously with the Company’s delivery to the holders of the Notes of its audited financial statements for such fiscal year pursuant to Section 7.1(c), the Company shall furnish to each such holder an Officer’s Certificate (which may be combined with the Officer’s Certificate required to be delivered for such fiscal year pursuant to Section 7.1(d)), (i) showing all such recomputations in respect of each fiscal quarter in such fiscal year and demonstrating the manner in which the same were made, and (ii) Restricted Payments payable setting forth the amount of each adjustment required in accordance with this Section 10.5(b) by the Borrower and its Subsidiaries provided that reason of such Restricted Payments are made solely recomputations in the common stock amount of any distribution or Management Fee payment made in such fiscal year. All such adjustments based on audited financial information shall be made as follows: (A) in the event that the audited financial information demonstrates that Parent received monies in excess of that which it should have received for such annual fiscal period, the Company shall cause an amount equal to such excess monies to be paid by Parent to the Company; provided, however, that if Parent shall not have paid the amount of any such excess monies to the Company in full, the amount of such Person making excess monies (or the Restricted Payment; (iiiportion thereof not so paid) Restricted Payments payable by shall be deducted from the Borrower provided that: (1) amounts which would otherwise be available for distribution to Parent pursuant to this Section 10.5 in succeeding fiscal quarters until the Debt/EBITDA 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 it if it had occurred on the last day full amount of such fiscal quarter, is less than or equal to 3.00 to 1.00; (2) the Unused Revolving Credit Commitment immediately after giving effect to such Restricted Payment is greater than or equal to $15,000,000; and (3) no Event of Default unpaid excess monies shall have occurred and be continuing at the time of such proposed Restricted Payment or would result therefrombeen so deducted; and (ivB) Restricted Payments payable by in the Borrower event that the audited financial information demonstrates that the Company should have been permitted to NACCO make distributions or Management Fee payments exceeding the amounts thereof actually distributed and paid in such fiscal year (ithe amount of any such excess, the “Underpaid Amount”), then so long as (x) no Potential Default or Event of Default is in existence or would result therefrom and (y) the amount at the time credited to the Debt Service Reserve Account shall be at least equal to the Debt Service Reserve Requirement at such time, the Company may make a further distribution to Parent and/or make a payment in respect of Management Fees, in an amount not exceeding, in the aggregate for such further distribution and payment in respect of Management Fees, the Underpaid Amount. All recomputations and adjustments pursuant to this Section 10.5(b) in respect of any fiscal year shall be made within ten Business Days after the BorrowerCompany’s allocable share delivery 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, (ii) in respect of liabilities of NACCO up to, but not exceeding $5,000,000 its audited financial statements for any twelve-month period, arising from, in connection with or relating such fiscal year pursuant to the closing of certain mining operations of Bellaire Corporation, (iii) in respect of amounts due to NACCO under the Tax Sharing Agreement and (iv) in respect of state taxes paid by NACCO on behalf of the Borrower and its SubsidiariesSection 7.1(c).

Dividends and Related Distributions. The Borrower shall not, and shall not permit any of its Subsidiaries Subsidiary to, declare or make or payany Stock Payment, or agree to agree, become or remain liable (contingently or otherwise) to do any of the foregoing, except as follows: (a) The Borrower may from time to time repurchase for cash shares of its common stock of a series publicly traded, subject to the following conditions: (i) Repurchases under this Section 7.06(a) in any calendar year shall not exceed $1,000,000 in the aggregate in any calendar year, and no more than $100,000 of such repurchases in the aggregate in any calendar year may be from any one director, officer or employee of the Borrower or any of its Subsidiaries (and for this purpose repurchases from relatives or Affiliates of any such Person shall be attributed to such Person); and (ii) No Event of Default or Potential Default shall exist on the date of such repurchase, or immediately thereafter and after giving effect to such repurchase; (b) The Borrower may from time to time declare and pay cash dividends on the Existing Preferred Stock to the extent required by the terms thereof as constituted on June 29, 1995, subject to the condition that no Event of Default or Potential Default shall exist on the date of declaration or payment of such dividend, or immediately thereafter and after giving effect to such proposed declaration or payment; (c) The Borrower may from time to time make mandatory redemptions of the Existing Preferred Stock as and when required to do so by the mandatory terms of the Existing Preferred Stock as constituted on June 29, 1995; PROVIDED, that in the event that an Event of Default or payPotential Default shall exist on the date of such mandatory redemption, or immediately thereafter and after giving effect thereto, such mandatory redemption shall constitute an Event of Default; (d) The Borrower may from time to time make optional redemptions of the Existing Preferred Stock in accordance with the terms thereof as constituted on June 29, 1995, subject to the following conditions: (i) On the date of such repurchase (and after giving effect to any extensions of credit hereunder on such date), the unborrowed commitments available to be borrowed by the Borrower under the Revolving Credit Agreement shall be at least $20,000,000; (ii) The Consolidated Funded Debt Ratio for the period of four consecutive fiscal quarters ending on the last day of the fiscal quarter ending most recently before such repurchase, after giving effect on a PRO FORMA basis to such repurchase as if such repurchase had occurred as of such last day, shall be less than 2.50; (iii) No Event of Default or Potential Default shall exist on the date of such repurchase, or immediately thereafter and after giving effect to such repurchase; and (iv) The Agent shall receive, with a copy for each Lender, not later than the Business Day after the date such repurchase is made, a certificate signed by a Responsible Officer of the Borrower, dated such repurchase date, describing such dividend, certifying that such repurchase is in compliance with the provisions of this Section 7.06(c), and including a statement in reasonable detail of the information and calculations necessary to establish compliance with this Section 7.06(d); (e) A Subsidiary of the Borrower may declare and pay dividends or other distributions with respect to its Shares of Capital Stock, PROVIDED, that such dividend or other distribution is made on a PRO RATA basis, consistent with the ownership interests in such Shares of any nature Capital Stock, to the owners of such shares; (whether f) The Borrower may make Stock Payments if such Stock Payment is paid solely in cash, property, securities or otherwise) on account Shares of or in respect of its shares of equity interests, partnership interests or limited liability company interests on account of the purchase, redemption, retirement or acquisition of its shares of equity interests Capital Stock (or warrants, options or rights therefor), partnership interests or limited liability company interests (collectively, the "Restricted Payments"), except: (i) Restricted Payments payable by any Subsidiary of the Borrower to the Borrower; (ii) Restricted Payments payable by the Borrower and its Subsidiaries provided that such Restricted Payments are made solely in the common stock of such Person making the Restricted Payment; (iii) Restricted Payments payable by the Borrower provided that: (1) the Debt/EBITDA 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 it if it had occurred on the last day of such fiscal quarter, is less than or equal to 3.00 to 1.00; (2) the Unused Revolving Credit Commitment immediately after giving effect to such Restricted Payment is greater than or equal to $15,000,000; and (3) no Event of Default shall have occurred and be continuing at the time of such proposed Restricted Payment or would result therefrom; and (ivg) Restricted Payments payable by the The Borrower to NACCO (i) 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, (ii) 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, (iii) in respect of amounts due to NACCO under the Tax Sharing Agreement and (iv) in respect of state taxes paid by NACCO on behalf of the Borrower and its Subsidiaries.may make

Dividends and Related Distributions. The Borrower 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 any shares of equity intereststhe capital stock of the Borrower (including the Preferred Shares and the Common Shares), partnership interests or limited liability company interests on account of the purchase, redemption, retirement or acquisition of its any shares of equity interests the capital stock (or warrants, options or rights therefor)) of the Borrower, partnership interests nor permit any such action to be taken indirectly by any of its Subsidiaries, except: [intentionally omitted]; so long as no Event of Default or limited liability company interests (collectivelyPotential Default has occurred and is continuing, the "Restricted Payments"), except: Borrower may repurchase not in excess (i) Restricted Payments payable by any Subsidiary in fiscal year 1996, $24,420,000 of the Borrower to Unpledged Shares (other than the Borrower; Restricted Stock); (ii) in fiscal year 1997 and in each fiscal year thereafter during the term of this Agreement, $2,000,000 of the Unpledged Shares (other than the Restricted Payments payable Stock) and, (iii) during the term of this Agreement, $1,000,000 of Restricted Stock; and at any time, the Borrower may repurchase up to $1,900,000 of the Unpledged Shares held by Mellon Bank, N.A., as trustee of the Westinghouse Electric Corporation Master Trust Agreement for the Westinghouse Pension Plan, or any successor trustee; Passport or any other Subsidiary which is less than wholly owned may make distributions as permitted under its organizational documents; and during the Borrower's fiscal year 1998 and thereafter, so long as (A) no Event of Default or Potential Default has occurred and is continuing, and (B) the Borrower is in compliance with Section 8.2(a), in the case of both clauses (A) and (B) after giving effect to any such dividend payment, the Borrower may make dividend payments with respect to the Common Shares in any fiscal year in an amount not to exceed, on a cumulative basis, $20,000,000 plus 50% of any net income (or minus 100% of any net loss) of the Borrower and its Subsidiaries provided that such Restricted Payments are made solely in from January 1, 1998 through the common stock date of such Person making the Restricted Payment; (iii) Restricted Payments payable by the Borrower provided that: (1) the Debt/EBITDA 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 it if it had occurred on the last day of such fiscal quarter, is less than or equal to 3.00 to 1.00; (2) the Unused Revolving Credit Commitment immediately after giving effect to such Restricted Payment is greater than or equal to $15,000,000; and (3) no Event of Default shall have occurred and be continuing at the time of such proposed Restricted Payment or would result therefrom; and (iv) Restricted Payments payable by the Borrower to NACCO (i) 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, (ii) 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, (iii) in respect of amounts due to NACCO under the Tax Sharing Agreement and (iv) in respect of state taxes paid by NACCO on behalf of the Borrower and its Subsidiariespayment.

Dividends and Related Distributions. The Borrower 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 equity interests, partnership interests or limited liability company interests on account of the purchase, redemption, retirement or acquisition of its shares of equity interests (or warrants, options or rights therefor), partnership interests or limited liability company interests (collectively, the "“Restricted Payments"”), except: (i) Restricted Payments payable by any Subsidiary of the Borrower to the Borrower; (ii) Restricted Payments payable by the Borrower and its Subsidiaries provided that such Restricted Payments are made solely in the common stock of such Person making the Restricted Payment; (iii) Restricted Payments payable by the Borrower provided that: (1) the Debt/EBITDA 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 it if it had occurred on the last day of such fiscal quarter, is less than or equal to 3.00 2.75 to 1.001.0; (2) the Unused Revolving Credit Commitment immediately after giving effect to such Restricted Payment is greater than or equal to $15,000,000; and (3) no Event of Default shall have occurred and be continuing at the time of such proposed Restricted Payment or would result therefrom; and (iv) Restricted Payments payable by the Borrower to NACCO (i) in respect of the Borrower’s allocable share of NACCO's ’s overhead and other selling, general and administrative expenses (including legal, accounting, other professional fees and costs) incurred in the ordinary course of business, (ii) 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, (iii) in respect of amounts due to NACCO under the Tax Sharing Agreement and (iv) in respect of state taxes paid by NACCO on behalf of the Borrower and its Subsidiaries.

Dividends and Related Distributions. The Borrower Each of the Loan Parties shall not, and nor shall not it 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 equity interests, capital stock or partnership interests or limited liability company interests on account of the purchase, redemption, retirement or acquisition of its shares of equity interests capital stock (or warrants, options or rights therefor), partnership interests or limited liability company interests ) (collectively, the "Restricted PaymentsDistributions"), except: (i) Restricted Payments payable by any Subsidiary the Company may make open market repurchases of shares of its common stock, and it may receive shares of its common stock as payment of the Borrower exercise price of options, or as payment of taxes associated with the exercise of options or the vesting of restricted shares, which such delivered shares are deemed to be repurchased by the Company at fair market value (as defined in the Company's stock option plan) on the date of delivery to the BorrowerCompany, so long as no Event of Default or Potential Default has occurred and is continuing or would result therefrom, and, after giving effect to any such repurchases, the Minimum Liquidity of the Company and its Subsidiaries taken as a whole shall not be less than $10,000,000 and the Company shall demonstrate on a pro forma basis that it shall be in compliance with the covenants contained in Sections 7.2.13, 7.2.14 and 7.2.15, as if such repurchase had occurred twelve months prior to the date of such repurchase; (ii) Restricted Payments payable by the Borrower and its Subsidiaries provided that such Restricted Payments are made solely Company may engage in the common stock of such Person making the Restricted Paymentsplits (including reverse stock splits) or pay dividends in stock; (iii) Restricted Payments payable by wholly-owned Subsidiaries may make Distributions to the Borrower provided that: Company or another wholly-owned Subsidiary; (1iv) Subsidiaries other than wholly-owned Subsidiaries may make Distributions so long as (a) the Debt/EBITDA Ratio as aggregate amount of Distributions made by any such Subsidiary to any Person other than the Company or a Subsidiary of the last day Company in any fiscal year does not exceed 50% of such Person's pro rata share (based on the percentage of stock or other equity interests owned by such Person) of such Subsidiary's net income for such fiscal quarter ending immediately year as determined in accordance with GAAP and (b) no later than ten (10) days prior to any such Restricted PaymentDistribution, giving pro forma the Company shall have given written notice to the Lenders and the Agent thereof, together with calculations demonstrating that such Distribution complies with this clause (iv); and (v) the Company may pay dividends on its Class A and B common stock and preferred stock in accordance with the terms therefor set forth in the Company's articles of incorporation as in effect to such Restricted Payment as it if it had occurred on the last day date of such fiscal quarterthis Agreement, is less than or equal to 3.00 to 1.00; (2) the Unused Revolving Credit Commitment immediately after giving effect to such Restricted Payment is greater than or equal to $15,000,000; and (3) so long as no Event of Default shall have or Potential Default has occurred and be is continuing at the time of such proposed Restricted Payment or would result therefrom; and (iv) Restricted Payments payable by provided, however, that notwithstanding any term contained herein to the Borrower contrary, so long as no Event of Default described in Section 8.1.1, 8.1.13, 8.1.14 or 8.1.15 has occurred and is continuing or would result therefrom, the Company shall be permitted to NACCO (i) pay, in respect strict accordance with the terms of the Borrower’s allocable share Company's articles of NACCO's overhead and other sellingincorporation as in effect on the date of this Agreement, general and administrative expenses (including legala dividend not to exceed 3.5 cents per share, accountingup to an aggregate amount not to exceed $1,000,000 per dividend, other professional fees and costs) incurred in the ordinary course of business, (ii) 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, (iii) in respect of amounts due to NACCO under the Tax Sharing Agreement and (iv) in respect of state taxes paid by NACCO on behalf holders of the Borrower and its SubsidiariesCompany's Class A nonvoting common stock only if nonpayment of such dividend would cause the holders of such stock to acquire voting rights described in Article III, Section B, paragraph 3 of such articles of incorporation.

Dividends and Related Distributions. (a) The Borrower 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 equity interestscapital stock, partnership interests or limited liability company interests or on account of the purchase, redemption, retirement or acquisition of its shares of equity capital stock, partnership interests or limited liability company interests (or warrants, options or rights therefor)) or make any Management Fee payment, partnership interests or limited liability company interests (collectively, the "Restricted Payments"), exceptexcept that: (i) Restricted Payments so long as (A) no Potential Default or Event of Default is in existence or would result therefrom and (B) the amount at the time credited to the Debt Service Reserve Account shall be at least equal to the Debt Service Reserve Requirement at such time the Borrower may (1) on the Closing Date, make a distribution of $8,500,000 to Parent from the proceeds of the sale of the Term Notes, (2) upon receipt by the Borrower of the NRGT Reimbursement in an amount equal to or greater than $1,500,000, make a distribution of $1,500,000 to Parent and (3) during the period of 15 Business Days next following each Payment Date, make a distribution to Parent and make the Management Fee payment payable in respect of the quarterly fiscal period ended on or closest to such Payment Date (including accrued Management Fee payments, if any, for prior fiscal quarterly periods which remain unpaid), in an amount not exceeding, in the aggregate for such distribution and Management Fee payment (including accrued Management Fee payments for prior periods), Excess Cash Flow as of such Payment Date; provided, that the amount of Excess Cash Flow as of each Payment Date, and the amount so distributable pursuant to this sub-clause (2) on the basis of the computation of such Excess Cash Flow, shall be subject to adjustment pursuant to Section 8.2.5(b); and (ii) any Subsidiary of the Borrower may make dividends and distributions to the Borrower or to any other Subsidiary in respect of Equity Interests of such Subsidiary owned by the Borrower or such other Subsidiary, as the case may be. The Borrower shall not and shall not permit any of its Subsidiaries to enter into any contract or agreement which restricts in any manner the payment by any Subsidiary of the Borrower of dividends or distributions to the Borrower or any other Subsidiary which shall own Equity Interests of such Subsidiary; provided, however, that the Borrower and TWCC may enter into the NRGT Documents, notwithstanding the potential restrictive effects thereof on the payment of dividends and distributions by TWCC. (b) The distributions and Management Fee payments made by the Borrower to the Parent pursuant to sub-clause (i)(2) of Section 8.2.5 (a) from Excess Cash Flow as of each Payment Date in any fiscal year shall be subject to adjustment in accordance with the further provisions of this Section 8.2.5(b). Following the completion of each fiscal year of the Borrower, the amount of Excess Cash Flow as of each Payment Date in such fiscal year shall be recalculated based upon the annual audited financial statements of the Loan Parties for such fiscal year. For this purpose, Available Cash and Excess Cash Flow as of each such Payment Date shall be recomputed in accordance with the definitions of “Available Cash” and “Excess Cash Flow” set forth in Schedule B of the Note Purchase Agreement, in each case using the actual numbers for the applicable quarterly period derived from such audited financial statements. Based on such recomputations, as promptly as practicable, but in any event not later than contemporaneously with the Borrower’s delivery to the Banks of its audited financial statements for such fiscal year pursuant to Section 8.3.3 [Annual Financial Statements], the Borrower shall furnish to each such holder an Officer’s Certificate (which may be combined with the Officer’s Certificate required to be delivered for such fiscal year pursuant to Section 8.3.4 [Certificate of the Borrower]), (i) showing all such recomputations in respect of each fiscal quarter in such fiscal year and demonstrating the manner in which the same were made, and (ii) setting forth the amount of each adjustment required in accordance with this Section 8.2.5(b) by reason of such recomputations in the amount of any distribution or Management Fee payment made in such fiscal year. All such adjustments based on audited financial information shall be made as follows: (i) in the event that the audited financial information demonstrates that Parent received monies in excess of that which it should have received for such annual fiscal period, the Borrower shall cause an amount equal to such excess monies to be paid by Parent to the Borrower;; provided, however, that if Parent shall not have paid the amount of any such excess monies to the Borrower in full, the amount of such excess monies (or the portion thereof not so paid) shall be deducted from the amounts which would otherwise be available for distribution to Parent pursuant to this Section 8.2.5 in succeeding fiscal quarters until the full amount of such unpaid excess monies shall have been so deducted; and (ii) Restricted Payments payable by in the event that the audited financial information demonstrates that the Borrower should have been permitted to make distributions or Management Fee payments exceeding the amounts thereof actually distributed and its Subsidiaries provided that such Restricted Payments are made solely paid in the common stock of such Person making the Restricted Payment; (iii) Restricted Payments payable by the Borrower provided that: (1) the Debt/EBITDA 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 it if it had occurred on the last day of such fiscal quarteryear (the amount of any such excess, is less than or equal to 3.00 to 1.00; the “Underpaid Amount”), then so long as (2) the Unused Revolving Credit Commitment immediately after giving effect to such Restricted Payment is greater than or equal to $15,000,000; and (3x) no Potential Default or Event of Default shall have occurred is in existence or would result therefrom and be continuing (y) the amount at the time of credited to the Debt Service Reserve Account shall be at least equal to the Debt Service Reserve Requirement at such proposed Restricted Payment or would result therefrom; and (iv) Restricted Payments payable by time, the Borrower may make a further distribution to NACCO (iParent and/or make a payment in respect of Management Fees, in an amount not exceeding, in the aggregate for such further distribution and payment in respect of Management Fees, the Underpaid Amount. All recomputations and adjustments pursuant to this Section 8.2.5(b) in respect of any fiscal year shall be made within ten Business Days 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, (ii) 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 delivery to the closing of certain mining operations of Bellaire Corporation, (iii) in respect of amounts due to NACCO under the Tax Sharing Agreement and (iv) in respect of state taxes paid by NACCO on behalf Banks of the Borrower and its Subsidiariesaudited financial statements for such fiscal year.