Common use of Limitations on Dividends and Distributions Clause in Contracts

Limitations on Dividends and Distributions. Declare or pay any ------------------------------------------ dividends upon any of its capital stock or other equity interests; purchase, redeem, retire or otherwise acquire, directly or indirectly, any shares of its capital stock or other equity interests; return capital of the Borrowers to the Company; or make any distribution of cash, property or assets among the holders of shares of its capital stock or make other payments or distributions to any Affiliate of the Company or any of its Subsidiaries; provided, that, if no -------- Default or Event of Default has occurred and is continuing nor would occur as a result of the following action: (a) the Company and its Subsidiaries may make payments to Affiliates of fees or compensation for services which are in the nature of management, corporate overhead or administrative services to the extent such payments are reflected in the then effective Approved Budget or Approved Business Plan and do not exceed arms' length pricing; (b) the Company and its Subsidiaries may pay dividends (including paid-in-kind dividends) in shares of their capital stock; (c) any Borrower may declare and pay dividends and make any other distribution of cash property or assets to another Borrower; (d) the Borrowers may pay cash dividends to the Company on each dividend payment date with respect to the Preferred Equity or the Replacement Equity, as applicable, and on each interest payment date with respect to the Bridge Loans or the Permanent Financing, in each case in an amount equal to the dividend payment and/or the interest payment payable on such date and which is permitted to be paid under this Agreement (and the Company may make corresponding cash dividend or interest payments, as applicable in respect of such equity or Debt, as applicable to the holders thereof), provided, that (i) the Company and the -------- Borrowers shall remain in compliance with the covenants set forth in Articles X and XI hereof after giving effect to such payment, and shall deliver evidence thereof reasonably satisfactory to the Administrative Agent, (ii) the Company Leverage Ratio shall not exceed 4.0 to 1.0 after giving effect to such payment and (iii) the Company shall use the proceeds of such dividends solely for the payment of scheduled dividend payments to the holders of the Preferred Equity or the Replacement Equity, as applicable or for the payment of scheduled interest payments on the Bridge Loans or the Permanent Financing, as applicable; (e) to the extent that the Company has issued Refinancing Securities for aggregate gross cash proceeds in excess of $200,000,000, in addition to the Preferred Equity or that portion of the Replacement Equity used to refinance the Preferred Equity in full, the Borrowers may pay cash dividends to the Company on each dividend or interest payment date with respect to such Refinancing Securities, provided, that (i) the -------- aggregate amount of such dividend payments shall not exceed an amount equal to $50,000,000, less the difference between the gross cash proceeds of such ---- Refinancing Securities and the Net Cash Proceeds thereof (if such Net Cash Proceeds are less than $200,000,000) and (ii) the Company shall use the proceeds of such dividends solely for the payment of scheduled dividend and interest payments to the holders of such Refinancing Securities; and (f) the Company shall be permitted to repurchase its capital stock owned by employees or former employees so long as (i) no Event of Default has occurred and is continuing hereunder at the time of such repurchase or would occur after giving effect thereto and (ii) the aggregate amount paid, or proposed to be paid, by the Company with respect to such repurchase, when aggregated with all previous repurchases of its capital stock made since the date hereof, does not exceed $2,000,000.

Limitations on Dividends and Distributions. Declare or pay any ------------------------------------------ dividends upon any of its capital stock or other equity interests; purchase, redeem, retire or otherwise acquire, directly or indirectly, any shares of its capital stock or other equity interests; return capital of the Borrowers to the Company; or make any distribution of cash, property or assets among the holders of shares of its capital stock or make other payments or distributions to any Affiliate of the Company or any of its Subsidiaries; provided, PROVIDED that, if no -------- Default or Event of Default has occurred and is continuing nor would occur as a result of the following action: (a) the Company and its Subsidiaries may make payments to Affiliates of fees or compensation for services which are in the nature of management, corporate overhead or administrative services to the extent such payments are expressly reflected in the then effective Approved Budget or Approved Business Plan and do not exceed arms' length pricing; PROVIDED, that no such payments may be made without the prior written consent of the Required Lenders if the aggregate amount of all such payments exceeds $500,000 per annum; (b) the Company and its Subsidiaries may pay dividends (including paid-in-kind dividends) in shares of their capital stock; (c) any Borrower may declare and pay dividends and make any other distribution of cash property or assets to another Borrower and any Wholly-Owned Subsidiary of any Borrower may pay dividends and make other distributions of cash, property or assets to any Borrower or any Wholly-Owned Subsidiary of a Borrower;; and (d) the Borrowers may pay cash dividends to the Company on each dividend payment date with respect to the Preferred Equity or the Replacement Equity, as applicable, and on each which cash interest payment date is due with respect to the Bridge Loans or the Permanent Financing, in each case in an amount equal to the dividend payment and/or the interest payment payable due on such date and which is permitted to be paid under this Agreement (and the Company may make corresponding cash dividend or interest payments, as applicable payments in respect of such equity or Debt, as applicable Debt to the holders thereofthereof to the extent allowed under this Agreement), provided, ; PROVIDED that (i) the Company and the -------- Borrowers shall remain in compliance with the covenants set forth in Articles X and XI hereof after giving effect to such payment, and shall deliver evidence thereof reasonably satisfactory to the Administrative Agent, (ii) immediately prior to the Company Leverage Ratio shall not exceed 4.0 to 1.0 after giving effect to making of such payment payment, no Default has occurred and is continuing and (iii) the Company shall use the proceeds of such dividends solely for the payment of scheduled dividend payments to the holders of the Preferred Equity or the Replacement Equity, as applicable or for the payment of scheduled cash interest payments due on the Bridge Loans or the Permanent Financing, as applicable; (e) to the extent that the Company has issued Refinancing Securities for aggregate gross cash proceeds in excess of $200,000,000, in addition to the Preferred Equity or that portion of the Replacement Equity used to refinance the Preferred Equity in full, the Borrowers may pay cash dividends to the Company on each dividend or interest payment date with respect to such Refinancing Securities, provided, Loans; and PROVIDED FURTHER that (i) prior to the -------- aggregate amount payment in full of such dividend payments shall not exceed an amount equal all principal and interest outstanding under the Term D Loan Facility, the Required Term D Lenders can, by notice to $50,000,000the Company at any time, less block the difference between payment of cash dividends by the gross cash proceeds Borrowers to the Company for one period of such ---- Refinancing Securities and the Net Cash Proceeds thereof (if such Net Cash Proceeds are less than $200,000,000) 180 days and (ii) in any event no cash dividends may be paid by any Borrower to the Company shall use the proceeds of such dividends solely for the payment of scheduled dividend and interest payments to the holders of such Refinancing Securities; and (f) the Company shall be permitted to repurchase its capital stock owned by employees or former employees so long as (i) no Event of if a Default has occurred and is continuing hereunder at continuing; PROVIDED, HOWEVER, that such dividend block under this clause (ii), if in respect of non-payment Defaults, shall be for a period of not more than 180 days from the time date the Company is notified in writing of such repurchase non-payment Default (and any subsequent 180 day dividend block in respect of non-payment Defaults may not be made until 360 days have elapsed since receipt of the aforementioned notice) and no non-payment Default that existed or would occur after giving effect thereto and (ii) was continuing on the aggregate amount paiddate of delivery of the aforementioned notice to the Administrative Agent shall be, or proposed to be paidmade, by the Company with respect to basis for a subsequent dividend block, unless such repurchase, when aggregated with all previous repurchases Default has been cured or waived for a period of its capital stock made since the date hereof, does not exceed $2,000,000less than 180 days.

Limitations on Dividends and Distributions. Declare or pay any ------------------------------------------ dividends upon any of its capital stock or any other equity ownership interests; purchase, redeem, retire or otherwise acquire, directly or indirectly, any shares of its capital stock or other equity ownership interests; return capital of the Borrowers to the Company; , or make any distribution of cash, property or assets among the holders of shares of its capital stock or other ownership interests, or make other payments or distributions to any Affiliate of the Company or any of change in its Subsidiariescapital structure; provided, provided that, if no -------- Default or Event of Default has occurred and is continuing nor would occur as a result of the following action: (a) the Company and any Borrower or any Subsidiary may pay dividends in shares of its Subsidiaries may make payments to Affiliates of fees or compensation for services which are in the nature of management, corporate overhead or administrative services to the extent such payments are reflected in the then effective Approved Budget or Approved Business Plan and do not exceed arms' length pricingown capital stock; (b) the Company and its Subsidiaries any Subsidiary may pay cash dividends (including paid-in-kind dividends) in shares of their capital stockto a Borrower; (c) any Borrower or any Subsidiary may declare and pay any other dividends or distributions not otherwise permitted by this Section 11.6; provided that (i) the aggregate of all dividends and make distributions permitted by this paragraph (c) during any Fiscal Year shall not exceed the maximum amount set forth below in the table below opposite the applicable Leverage Ratio and (ii) no Default or Event of Default shall have occurred and be continuing both before and after giving effect to such dividends and distributions under this paragraph (c): Greater than or equal to 3.50 to 1.00 $100,000,000 minus the aggregate amount used to purchase, redeem, retire or otherwise acquire, directly or indirectly shares of its capital stock pursuant to Section 11.6(d) during such Fiscal Year Less than 3.50 to 1.00 5% of the Net Worth of such Borrower or such Subsidiary for such Fiscal Year No Default or Event of Default shall be deemed to arise under this paragraph (c) as a result of an increase in the Leverage Ratio (resulting in a corresponding decrease in the maximum permitted dividend and distribution amount) with respect to the payment of any dividend or distribution actually paid during any prior Fiscal Year(s) as a result of such change in Leverage Ratio, so long as at the time such dividend or other distribution of cash property or assets to another Borrower;was paid, it was permitted in accordance with this Section 11.6; and (d) the Borrowers Company may pay cash dividends to the Company on each dividend payment date purchase, redeem, retire or otherwise acquire, directly or indirectly, shares of its capital stock (any such purchase, redemption, retirement or acquisition under this paragraph (d), a “Restricted Payment”); provided that, with respect to the Preferred Equity or the Replacement Equityany Restricted Payment, as applicable, and on each interest payment date with respect to the Bridge Loans or the Permanent Financing, in each case in an amount equal to the dividend payment and/or the interest payment payable on such date and which is permitted to be paid under this Agreement (and the Company may make corresponding cash dividend or interest payments, as applicable in respect of such equity or Debt, as applicable to the holders thereof), provided, that (i) the Company and maximum amount of all Restricted Payments made during any period of twelve (12) consecutive months ending as of the -------- Borrowers date of such Restricted Payment shall remain in compliance with not exceed the covenants applicable amount set forth below (it being agreed and acknowledged by all parties that the Leverage Ratio shall be determined on the date of such Restricted Payment after giving pro forma effect to any Debt incurred in Articles X connection with such Restricted Payment) and XI hereof (ii) no Default or Event of Default shall have occurred and be continuing both before and after giving effect to such payment, Restricted Payment. Greater than or equal to 3.50 to 1.00 $100,000,000 minus the aggregate amount paid in respect of dividends and distributions permitted under Section 11.6(c) during such Fiscal Year Less than 3.50 to 1.00 $125,000,000 No Default or Event of Default shall deliver evidence thereof reasonably satisfactory be deemed to arise under this paragraph (d) as a result of an increase in the Administrative Agent, (ii) the Company Leverage Ratio shall not exceed 4.0 to 1.0 after giving effect to such payment and (iiiresulting in a corresponding decrease in the maximum permitted capital stock purchases, redemptions, retirements or other acquisitions) the Company shall use the proceeds of such dividends solely for the payment of scheduled dividend payments to the holders of the Preferred Equity or the Replacement Equity, as applicable or for the payment of scheduled interest payments on the Bridge Loans or the Permanent Financing, as applicable; (e) to the extent that the Company has issued Refinancing Securities for aggregate gross cash proceeds in excess of $200,000,000, in addition to the Preferred Equity or that portion of the Replacement Equity used to refinance the Preferred Equity in full, the Borrowers may pay cash dividends to the Company on each dividend or interest payment date with respect to any such Refinancing Securitiespurchase, providedredemption, that (i) the -------- aggregate amount of retirement or other acquisition actually consummated prior to such dividend payments shall not exceed an amount equal to $50,000,000change in Leverage Ratio, less the difference between the gross cash proceeds of such ---- Refinancing Securities and the Net Cash Proceeds thereof (if such Net Cash Proceeds are less than $200,000,000) and (ii) the Company shall use the proceeds of such dividends solely for the payment of scheduled dividend and interest payments to the holders of such Refinancing Securities; and (f) the Company shall be permitted to repurchase its capital stock owned by employees or former employees so long as (i) no Event of Default has occurred and is continuing hereunder at the time such purchase, redemption, retirement or other acquisition of such repurchase or would occur after giving effect thereto and (ii) the aggregate amount capital stock was paid, or proposed to be paid, by the Company it was permitted in accordance with respect to such repurchase, when aggregated with all previous repurchases of its capital stock made since the date hereof, does not exceed $2,000,000this Section 11.6.

Limitations on Dividends and Distributions. Declare or pay any ------------------------------------------ dividends upon any of its capital stock or other equity interestsCapital Stock; purchase, redeem, retire or otherwise acquire, directly or indirectly, any shares of its capital stock or other equity interests; return capital of the Borrowers to the Company; Capital Stock, or make any distribution of cash, property or assets among the holders of shares of its capital stock Capital Stock, or make other payments or distributions any change in its capital structure which such change in its capital structure could reasonably be expected to any Affiliate of have a Material Adverse Effect; provided that: (a) the Company US Borrower or any Subsidiary may pay dividends in shares of its Subsidiaries; provided, that, if own Capital Stock; (b) so long as no -------- Default or Event of Default has occurred and is continuing nor or would occur as result therefrom, the US Borrower may declare and pay dividends in a result manner consistent with the past practice of the following action: (a) US Borrower in an amount reasonably determined by the Company and its Subsidiaries may make payments to Affiliates board of fees or compensation for services which are in directors of the nature of management, corporate overhead or administrative services to the extent US Borrower; provided that such payments are reflected in the then effective Approved Budget or Approved Business Plan and do amount shall not exceed arms' length pricing; fifty percent (b50%) of Net Income for the Company and its Subsidiaries may pay dividends (including paid-in-kind dividends) in shares of their capital stockpreceding Fiscal Year; (c) any Borrower Subsidiary may declare and pay dividends and make of any type (cash or non-cash) to the US Borrower or any other distribution Wholly-Owned Subsidiary, provided that if the Subsidiary paying the dividend is a Subsidiary Guarantor then the recipient of cash property the dividend must be either the US Borrower or assets to another Borrower;Subsidiary Guarantor; and (d) the Borrowers US Borrower may pay cash dividends to the Company on each dividend payment date with respect to the Preferred Equity or the Replacement Equityrepurchase shares of its Capital Stock, as applicable, and on each interest payment date with respect to the Bridge Loans or the Permanent Financing, in each case in an amount equal to the dividend payment and/or the interest payment payable on such date and which is permitted to be paid under this Agreement (and the Company may make corresponding cash dividend or interest payments, as applicable in respect of such equity or Debt, as applicable to the holders thereof), provided, that (i) the Company and the -------- Borrowers shall remain in compliance with the covenants set forth in Articles X and XI hereof after giving effect to such payment, and shall deliver evidence thereof reasonably satisfactory to the Administrative Agent, (ii) the Company Leverage Ratio shall not exceed 4.0 to 1.0 after giving effect to such payment and (iii) the Company shall use the proceeds of such dividends solely for the payment of scheduled dividend payments to the holders of the Preferred Equity or the Replacement Equity, as applicable or for the payment of scheduled interest payments on the Bridge Loans or the Permanent Financing, as applicable; (e) to the extent that the Company has issued Refinancing Securities for aggregate gross cash proceeds in excess of $200,000,000, in addition to the Preferred Equity or that portion of the Replacement Equity used to refinance the Preferred Equity in full, the Borrowers may pay cash dividends to the Company on each dividend or interest payment date with respect to such Refinancing Securities, provided, that (i) the -------- aggregate amount of such dividend payments shall not exceed an amount equal to $50,000,000, less the difference between the gross cash proceeds of such ---- Refinancing Securities and the Net Cash Proceeds thereof (if such Net Cash Proceeds are less than $200,000,000) and (ii) the Company shall use the proceeds of such dividends solely for the payment of scheduled dividend and interest payments to the holders of such Refinancing Securities; and (f) the Company shall be permitted to repurchase its capital stock owned by employees or former employees so long as as: (i) no Default or Event of Default has occurred and is continuing hereunder at the time of such repurchase or would occur after giving effect thereto and result therefrom; and (ii) the aggregate amount paidUS Borrower and its Subsidiaries shall have demonstrated to the Administrative Agent that the Average Total Leverage Ratio (as of the date of the proposed share repurchase, or proposed based on the most recent financial statements delivered to be paidthe Administrative Agent pursuant to Section 8.1, by the Company with respect and, on a pro forma basis, after giving effect to such repurchase, when aggregated with all previous repurchases of its capital stock made since the date hereof, does not exceed $2,000,000share repurchase and any Indebtedness incurred in connection therewith) is less than 3.00 to 1.00.

Limitations on Dividends and Distributions. Declare or pay any ------------------------------------------ dividends upon any of its capital stock or other equity interestsCapital Stock; purchase, redeem, retire or otherwise acquire, directly or indirectly, any shares of its capital stock or other equity interests; return capital of the Borrowers to the Company; Capital Stock, or make any distribution of cash, property or assets among the holders of shares of its capital stock Capital Stock, or make other payments or distributions any change in its capital structure which such change in its capital structure could reasonably be expected to any Affiliate of the Company or any of its Subsidiarieshave a Material Adverse Effect; provided, provided that, if no -------- Default or Event of Default has occurred and is continuing nor would occur as a result of the following action: (a) the Company and US Borrower or any Subsidiary may pay dividends in shares of its Subsidiaries may make payments to Affiliates of fees or compensation for services which are in the nature of management, corporate overhead or administrative services to the extent such payments are reflected in the then effective Approved Budget or Approved Business Plan and do not exceed arms' length pricingown Capital Stock; (b) so long as no Default or Event of Default shall have occurred and be continuing both before and after giving effect to such payment of cash dividends, the Company US Borrower may pay cash dividends; provided that each payment of cash dividends must be made in compliance with the following criteria: (i) during the period from the Closing Date through September 30, 2005, the aggregate amount of such payments of cash dividends may not exceed $35,000,000; and (ii) for any Fiscal Year after September 30, 2005, the aggregate amount of such payments of cash dividends may not exceed an amount equal to fifty percent (50%) of Net Income of the US Borrower and its Subsidiaries may pay dividends for such Fiscal Year less any share repurchases made during such Fiscal Year as permitted per subsection (including paid-in-kind dividendsc) in shares of their capital stockthis Section 10.6; (c) any so long as no Default or Event of Default shall have occurred and be continuing both before and after giving effect to such share repurchase, the US Borrower may declare repurchase shares of its common stock in an amount not to exceed $250,000,000 during the term of this Agreement; provided that each share repurchase must be made in compliance with the following criteria: (i) during the period from the Closing Date through September 30, 2005, the aggregate amount of such share repurchases may not exceed $150,000,000; and (ii) for any Fiscal Year after September 30, 2005, the aggregate amount of such share repurchases may not exceed an amount equal to fifty percent (50%) of Net Income of the US Borrower and pay its Subsidiaries for such Fiscal Year less any cash dividends made during such Fiscal Year as permitted per subsection (b) of this Section 10.6; provided that to the extent that, during any Fiscal Year after September 30, 2005, the basket set forth in this clause (ii) is fully utilized, the US Borrower may repurchase shares of its common stock in an amount not to exceed the difference between the amount of share repurchases permitted pursuant to clause (i) above and make the amount of share repurchases actually made pursuant to clause (i) (whether by virtue of (1) share repurchases made during the period from the Closing Date through September 30, 2005 or (2) additional share repurchases pursuant to this proviso in any other distribution of cash property or assets to another Borrowersubsequent Fiscal Year); (d) the Borrowers US Borrower may pay cash dividends to the Company on each dividend payment date with respect to the Preferred Equity or the Replacement Equity, as applicable, and on each interest payment date with respect to the Bridge Loans or the Permanent Financing, in each case in an amount equal to the dividend payment and/or the interest payment payable on such date and which is permitted to be paid under this Agreement (and the Company may make corresponding cash dividend or interest payments, as applicable in respect of such equity or Debt, as applicable to the holders thereof), provided, that repurchase (i) the Company June 2008 Notes and the -------- Borrowers shall remain in compliance with the covenants set forth in Articles X and XI hereof after giving effect to such payment, and shall deliver evidence thereof reasonably satisfactory to the Administrative Agent, (ii) the Company Leverage Ratio shall not exceed 4.0 to 1.0 after giving effect to such payment and (iii) the Company shall use the proceeds of such dividends solely for the payment of scheduled dividend payments to the holders of the Preferred Equity or the Replacement Equity, as applicable or for the payment of scheduled interest payments on the Bridge Loans or the Permanent Financing, as applicable; (e) to the extent that the Company has issued Refinancing Securities for aggregate gross cash proceeds in excess May 2007 Notes are not converted to common stock of $200,000,000the US Borrower, the May 2007 Notes, in addition each case so long as no Default or Event of Default shall have occurred and be continuing both before and after giving effect to the Preferred Equity or that portion of the Replacement Equity used to refinance the Preferred Equity in full, the Borrowers such repurchase; (e) any Subsidiary may pay cash dividends to the Company on each dividend US Borrower or interest payment date a Guarantor; (f) any Subsidiary that is not a Guarantor may pay dividends to any other Subsidiary that is not a Guarantor; and (g) any Subsidiary may pay dividends to third party owners of its Capital Stock in connection with respect the dividends paid pursuant to such Refinancing Securities, provided, that subsections (ie) the -------- aggregate amount and (f) of such dividend payments shall not exceed this Section 10.6 in an amount equal to $50,000,000, less the difference between the gross cash proceeds such third party's ratable percentage of such ---- Refinancing Securities and the Net Cash Proceeds thereof (if such Net Cash Proceeds are less than $200,000,000) and (ii) the Company shall use the proceeds of such dividends solely for the payment of scheduled dividend and interest payments to the holders of such Refinancing Securities; and (f) the Company shall be permitted to repurchase its capital stock owned by employees or former employees so long as (i) no Event of Default has occurred and is continuing hereunder at the time of such repurchase or would occur after giving effect thereto and (ii) the aggregate amount paid, or proposed to be paid, by the Company with respect to such repurchase, when aggregated with all previous repurchases of its capital stock made since the date hereof, does not exceed $2,000,000dividends.

Limitations on Dividends and Distributions. Declare or pay any ------------------------------------------ dividends upon any of its capital stock or other equity interestsCapital Stock; purchase, redeem, retire or otherwise acquire, directly or indirectly, any shares of its capital stock or other equity interests; return capital of the Borrowers to the Company; Capital Stock, or make any distribution of cash, property or assets among the holders of shares of its capital stock Capital Stock, or make other payments or distributions any change in its capital structure which such change in its capital structure could reasonably be expected to any Affiliate of have a Material Adverse Effect; provided that: (a) the Company US Borrower or any Subsidiary may pay dividends in shares of its Subsidiaries; provided, that, if own Capital Stock; (b) so long as no -------- Default or Event of Default has occurred and is continuing nor or would occur as result therefrom, the US Borrower may declare and pay quarterly dividends in a result manner consistent with the past practice of the following action: US Borrower in amounts reasonably determined by the board of directors of the US Borrower; provided that the aggregate amount of dividends declared and paid during each Fiscal Year shall not exceed fifty percent (a50%) of Net Income for the Company Fiscal Year preceding the Fiscal Year in which such dividend is to be declared and paid (as set forth in the audited financial statements of the US Borrower and its Subsidiaries for such preceding Fiscal Year) (the “Annual Dividend Limit”); provided further that the US Borrower may make payments to Affiliates declare and pay such quarterly dividends notwithstanding that the aggregate amount of fees or compensation for services which are dividends paid during such Fiscal Year would be in the nature excess of management, corporate overhead or administrative services to the extent such payments are reflected in the then effective Approved Budget or Approved Business Plan and do applicable Annual Dividend Limit so long as (i) the amount per share of such dividends does not exceed arms' length pricing; the amount per share paid during the most recent Fiscal Year in which the US Borrower was in compliance with the Annual Dividend Limit (bwithout giving effect to this proviso) and (ii) the Company US Borrower and its Subsidiaries may pay shall have demonstrated to the Administrative Agent that, immediately before and after giving pro forma effect to such dividends and any Indebtedness incurred in connection therewith, the Average Total Leverage Ratio (including paid-in-kind dividendsbased on the most recent financial statements delivered to the Administrative Agent pursuant to Section 8.1) in shares of their capital stockis less than 3.00 to 1.00; (c) any Borrower Subsidiary may declare and pay dividends and make of any type (cash or non-cash) to the US Borrower or any other distribution Wholly-Owned Subsidiary, provided that if the Subsidiary paying the dividend is a Subsidiary Guarantor or Subsidiary Borrower then the recipient of cash property the dividend must be either the US Borrower or assets to another Borrower;Subsidiary Guarantor; and (d) the Borrowers US Borrower may pay cash dividends to the Company on each dividend payment date with respect to the Preferred Equity or the Replacement Equityrepurchase shares of its Capital Stock, as applicable, and on each interest payment date with respect to the Bridge Loans or the Permanent Financing, in each case in an amount equal to the dividend payment and/or the interest payment payable on such date and which is permitted to be paid under this Agreement (and the Company may make corresponding cash dividend or interest payments, as applicable in respect of such equity or Debt, as applicable to the holders thereof), provided, that (i) the Company and the -------- Borrowers shall remain in compliance with the covenants set forth in Articles X and XI hereof after giving effect to such payment, and shall deliver evidence thereof reasonably satisfactory to the Administrative Agent, (ii) the Company Leverage Ratio shall not exceed 4.0 to 1.0 after giving effect to such payment and (iii) the Company shall use the proceeds of such dividends solely for the payment of scheduled dividend payments to the holders of the Preferred Equity or the Replacement Equity, as applicable or for the payment of scheduled interest payments on the Bridge Loans or the Permanent Financing, as applicable; (e) to the extent that the Company has issued Refinancing Securities for aggregate gross cash proceeds in excess of $200,000,000, in addition to the Preferred Equity or that portion of the Replacement Equity used to refinance the Preferred Equity in full, the Borrowers may pay cash dividends to the Company on each dividend or interest payment date with respect to such Refinancing Securities, provided, that (i) the -------- aggregate amount of such dividend payments shall not exceed an amount equal to $50,000,000, less the difference between the gross cash proceeds of such ---- Refinancing Securities and the Net Cash Proceeds thereof (if such Net Cash Proceeds are less than $200,000,000) and (ii) the Company shall use the proceeds of such dividends solely for the payment of scheduled dividend and interest payments to the holders of such Refinancing Securities; and (f) the Company shall be permitted to repurchase its capital stock owned by employees or former employees so long as as: (i) no Default or Event of Default has occurred and is continuing hereunder at the time of such repurchase or would occur after giving effect thereto and result therefrom; and (ii) the aggregate amount paidUS Borrower and its Subsidiaries shall have demonstrated to the Administrative Agent that the Average Total Leverage Ratio (as of the date of the proposed share repurchase, or proposed based on the most recent financial statements delivered to be paidthe Administrative Agent pursuant to Section 8.1, by the Company with respect and, on a pro forma basis, after giving effect to such repurchase, when aggregated with all previous repurchases of its capital stock made since the date hereof, does not exceed $2,000,000share repurchase and any Indebtedness incurred in connection therewith) is less than 2.50 to 1.00.

Limitations on Dividends and Distributions. Declare or pay any ------------------------------------------ dividends upon any of its capital stock or other equity interestsCapital Stock; purchase, redeem, retire or otherwise acquire, directly or indirectly, any shares of its capital stock or other equity interests; return capital of the Borrowers to the Company; Capital Stock, or make any distribution of cash, property or assets among the holders of shares of its capital stock Capital Stock, or make other payments or distributions any change in its capital structure which such change in its capital structure could reasonably be expected to any Affiliate of have a Material Adverse Effect; provided that: (a) the Company Borrower or any Subsidiary may pay dividends in shares of its Subsidiaries; provided, that, if own Capital Stock; (b) so long as no -------- Default or Event of Default has occurred and is continuing nor or would occur as result therefrom, the Borrower may declare and pay quarterly dividends in a result manner consistent with the past practice of the following action: Borrower in amounts reasonably determined by the board of directors of the Borrower; provided that the aggregate amount of dividends declared and paid during each Fiscal Year shall not exceed fifty percent (a50%) of Net Income for the Company Fiscal Year preceding the Fiscal Year in which such dividend is to be declared and paid (as set forth in the audited financial statements of the Borrower and its Subsidiaries for such preceding Fiscal Year) (the “Annual Dividend Limit”); provided further that the Borrower may make payments to Affiliates declare and pay such quarterly dividends notwithstanding that the aggregate amount of fees or compensation for services which are dividends paid during such Fiscal Year would be in the nature excess of management, corporate overhead or administrative services to the extent such payments are reflected in the then effective Approved Budget or Approved Business Plan and do applicable Annual Dividend Limit so long as (i) the amount per share of such dividends does not exceed arms' length pricing; the amount per share paid during the most recent Fiscal Year in which the Borrower was in compliance with the Annual Dividend Limit (bwithout giving effect to this proviso) and (ii) the Company Borrower and its Subsidiaries may pay shall have demonstrated to the Lender that, immediately before and after giving pro forma effect to such dividends and any Indebtedness incurred in connection therewith, the Average Total Leverage Ratio (including paid-in-kind dividendsbased on the most recent financial statements delivered to the Lender pursuant to Section 6.01) in shares of their capital stockis less than 3.00 to 1.00; (c) any Borrower Subsidiary may declare and pay dividends and make of any type (cash or non-cash) to the Borrower or any other distribution Wholly-Owned Subsidiary, provided that if the Subsidiary paying the dividend is a Guarantor or a Revolving Subsidiary Borrower then the recipient of cash property the dividend must be either the Borrower or assets to another Borrower;Guarantor; and (d) the Borrowers Borrower may pay cash dividends to the Company on each dividend payment date with respect to the Preferred Equity or the Replacement Equityrepurchase shares of its Capital Stock, as applicable, and on each interest payment date with respect to the Bridge Loans or the Permanent Financing, in each case in an amount equal to the dividend payment and/or the interest payment payable on such date and which is permitted to be paid under this Agreement (and the Company may make corresponding cash dividend or interest payments, as applicable in respect of such equity or Debt, as applicable to the holders thereof), provided, that (i) the Company and the -------- Borrowers shall remain in compliance with the covenants set forth in Articles X and XI hereof after giving effect to such payment, and shall deliver evidence thereof reasonably satisfactory to the Administrative Agent, (ii) the Company Leverage Ratio shall not exceed 4.0 to 1.0 after giving effect to such payment and (iii) the Company shall use the proceeds of such dividends solely for the payment of scheduled dividend payments to the holders of the Preferred Equity or the Replacement Equity, as applicable or for the payment of scheduled interest payments on the Bridge Loans or the Permanent Financing, as applicable; (e) to the extent that the Company has issued Refinancing Securities for aggregate gross cash proceeds in excess of $200,000,000, in addition to the Preferred Equity or that portion of the Replacement Equity used to refinance the Preferred Equity in full, the Borrowers may pay cash dividends to the Company on each dividend or interest payment date with respect to such Refinancing Securities, provided, that (i) the -------- aggregate amount of such dividend payments shall not exceed an amount equal to $50,000,000, less the difference between the gross cash proceeds of such ---- Refinancing Securities and the Net Cash Proceeds thereof (if such Net Cash Proceeds are less than $200,000,000) and (ii) the Company shall use the proceeds of such dividends solely for the payment of scheduled dividend and interest payments to the holders of such Refinancing Securities; and (f) the Company shall be permitted to repurchase its capital stock owned by employees or former employees so long as as: (i) no Default or Event of Default has occurred and is continuing hereunder at the time of such repurchase or would occur after giving effect thereto and result therefrom; and (ii) the aggregate amount paidBorrower and its Subsidiaries shall have demonstrated to the Lender that the Average Total Leverage Ratio (as of the date of the proposed share repurchase, or proposed based on the most recent financial statements delivered to be paidthe Lender pursuant to Section 6.01, by the Company with respect and, on a pro forma basis, after giving effect to such repurchase, when aggregated with all previous repurchases of its capital stock made since the date hereof, does not exceed $2,000,000share repurchase and any Indebtedness incurred in connection therewith) is less than 2.50 to 1.00.

Limitations on Dividends and Distributions. Declare or pay any ------------------------------------------ dividends upon any of its capital stock or other equity interestsCapital Stock; purchase, redeem, retire or otherwise acquire, directly or indirectly, any shares of its capital stock or other equity interests; return capital of the Borrowers to the Company; Capital Stock, or make any distribution of cash, property or assets among the holders of shares of its capital stock Capital Stock, or make other payments or distributions any change in its capital structure which such change in its capital structure could reasonably be expected to any Affiliate of have a Material Adverse Effect; provided that: a. the Company Borrower or any Subsidiary may pay dividends in shares of its Subsidiaries; provided, that, if own Capital Stock; b. so long as no -------- Default or Event of Default has occurred and is continuing nor or would occur as a result of therefrom, the following action: (a) the Company and its Subsidiaries may make payments to Affiliates of fees or compensation for services which are in the nature of management, corporate overhead or administrative services to the extent such payments are reflected in the then effective Approved Budget or Approved Business Plan and do not exceed arms' length pricing; (b) the Company and its Subsidiaries may pay dividends (including paid-in-kind dividends) in shares of their capital stock; (c) any Borrower may declare and pay quarterly dividends and make any other distribution of cash property or assets to another Borrower; (d) the Borrowers may pay cash dividends to the Company on each dividend payment date with respect to the Preferred Equity or the Replacement Equity, as applicable, and on each interest payment date with respect to the Bridge Loans or the Permanent Financing, in each case in an amount equal to the dividend payment and/or the interest payment payable on such date and which is permitted to be paid under this Agreement (and the Company may make corresponding cash dividend or interest payments, as applicable in respect of such equity or Debt, as applicable to the holders thereof), provided, that (i) the Company and the -------- Borrowers shall remain in compliance a manner consistent with the covenants set forth in Articles X and XI hereof after giving effect to such payment, and shall deliver evidence thereof reasonably satisfactory to the Administrative Agent, (ii) the Company Leverage Ratio shall not exceed 4.0 to 1.0 after giving effect to such payment and (iii) the Company shall use the proceeds of such dividends solely for the payment of scheduled dividend payments to the holders past practice of the Preferred Equity or Borrower in amounts reasonably determined by the Replacement Equity, as applicable or for board of directors of the payment of scheduled interest payments on the Bridge Loans or the Permanent Financing, as applicable; (e) to the extent Borrower; provided that the Company has issued Refinancing Securities for aggregate gross cash proceeds in excess of $200,000,000, in addition to the Preferred Equity or that portion of the Replacement Equity used to refinance the Preferred Equity in full, the Borrowers Borrower may declare and pay cash such quarterly dividends to the Company on each dividend or interest payment date with respect to such Refinancing Securities, provided, that (i) the -------- aggregate amount of such dividend payments shall not exceed an amount equal to $50,000,000, less the difference between the gross cash proceeds of such ---- Refinancing Securities and the Net Cash Proceeds thereof (if such Net Cash Proceeds are less than $200,000,000) and (ii) the Company shall use the proceeds of such dividends solely for the payment of scheduled dividend and interest payments to the holders of such Refinancing Securities; and (f) the Company shall be permitted to repurchase its capital stock owned by employees or former employees so long as (i) the amount per share of such dividends is not greater than the most recently publicly announced amount of dividends per share and (ii) the Borrower and its Subsidiaries shall have demonstrated to the Lender that, immediately before and after giving effect to such dividends and any Indebtedness incurred in connection therewith on a Pro Forma Basis, the Average Total Leverage Ratio (based on the most recent financial statements delivered to the Lender pursuant to Section 6.01) is less than 3.25 to 1.00; c. any Subsidiary may declare and pay dividends of any type (cash or non-cash) to the Borrower or any other Wholly-Owned Subsidiary, provided that if the Subsidiary paying the dividend is a Guarantor or a Revolving Subsidiary Borrower then the recipient of the dividend must be either the Borrower or another Guarantor; and d. the Borrower may repurchase shares of its Capital Stock, so long as: i. no Default or Event of Default has occurred and is continuing hereunder at the time of such repurchase or would occur result therefrom; and ii. the Borrower and its Subsidiaries shall have demonstrated to the Lender that the Average Total Leverage Ratio (as of the date of the proposed share repurchase, based on the most recent financial statements delivered to the Lender pursuant to Section 6.01, and, on a Pro Forma Basis, after giving effect thereto and (ii) the aggregate amount paid, or proposed to be paid, by the Company with respect to such repurchase, when aggregated with all previous repurchases of its capital stock made since the date hereof, does not exceed $2,000,000share repurchase and any Indebtedness incurred in connection therewith) is less than 3.25 to 1.00.

Limitations on Dividends and Distributions. Declare or pay any ------------------------------------------ dividends upon any of its capital stock Capital Stock or other equity interests; purchase, redeem, retire or otherwise acquire, directly or indirectly, any shares of its capital stock Capital Stock or other equity interests; return capital of the Borrowers to the CompanyParent; or make any distribution of cash, property or assets among the holders of shares of its capital stock Capital Stock or make other payments or distributions to any Affiliate of the Company any Credit Party or any of its Subsidiaries, in each case with respect to its Capital Stock or in its capacity as holder of Capital Stock; providedprovided that (a) each Credit Party may make dividends payable solely in the same class of Capital Stock of such Person, that, (b) each Credit Party may make dividends or other distributions payable to the Borrowers and (c) if no -------- Default or Event of Default has occurred and is continuing nor would occur as a result of the following action: thereof (ai) the Company and its Subsidiaries Borrowers may make payments to Affiliates of fees or compensation for services which are in the nature of management, Parent to pay (A) corporate overhead or administrative services costs in an aggregate amount not to exceed $150,000 during any fiscal year and (B) amounts necessary to pay liquidated damages payable by the Parent as a result of a Registration Default (as defined in the Warrant Registration Rights Agreement dated as of the Closing Date among the Parent and the initial purchasers named therein and the Note Registration Rights Agreement dated as of the Closing Date among the Parent, the subsidiary guarantors named therein and the initial purchasers named therein) such amounts not to exceed $1,000,000 in the aggregate, (ii) a Credit Party may repurchase shares of its Capital Stock pursuant to the extent exercise of rights of first refusal granted in connection with a proposed sale of such Capital Stock by an option-holder who has exercised stock options pursuant to an option plan approved by the board of directors of such Credit Party in an aggregate amount not to exceed $3,000,000 during any fiscal year, (iii) a Credit Party may make payments are reflected as required pursuant to the contracts set forth on Schedule 9.9 as in effect on the Closing Date and in the then effective Approved Budget or Approved Business Plan and do not exceed arms' length pricing; amounts stated on such Schedule, (b) the Company and its Subsidiaries may pay dividends (including paid-in-kind dividends) in shares of their capital stock; (c) any Borrower may declare and pay dividends and make any other distribution of cash property or assets to another Borrower; (div) the Borrowers may pay cash dividends make distributions to the Company Parent to make regularly scheduled payments of interest on each dividend payment date with respect to the Preferred Equity or the Replacement EquityPermitted Parent Debt, as applicable, and on each interest payment date with respect to the Bridge Loans or the Permanent Financing, in each case in an amount equal to the dividend payment and/or the interest payment payable on such date and which is permitted to be paid under this Agreement (and v) the Company may make corresponding cash dividend or interest paymentsdistribute shares of Horizon Telcom, as applicable in respect of such equity or Debt, as applicable Inc. that it owns to the holders thereof), provided, that (i) the Company Parent and the -------- Borrowers shall remain in compliance with the covenants set forth in Articles X and XI hereof after giving effect Parent may dividend or distribute such shares of Horizon Telcom, Inc. to such payment, and shall deliver evidence thereof reasonably satisfactory to the Administrative Agent, (ii) the Company Leverage Ratio shall not exceed 4.0 to 1.0 after giving effect to such payment its shareholders and (iiivi) at any time prior to April 30, 2001, the Company shall use Parent may redeem its Series A-1 Convertible Preferred Capital Stock in an aggregate amount not to exceed $86,000,000 pursuant to Article 4, Subpart C, Subsection F(2)(i) of the Parent's Amended and Restated Articles of Incorporation with proceeds of such dividends solely for the payment of scheduled dividend payments to the holders an initial public offering of the Preferred Equity or the Replacement Equity, as applicable or for the payment of scheduled interest payments on the Bridge Loans or the Permanent Financing, as applicable; (e) to the extent that the Company has issued Refinancing Securities for aggregate gross cash proceeds Parent's Capital Stock in excess of $200,000,000, in addition to the Preferred Equity or that portion of the Replacement Equity used to refinance the Preferred Equity in full, the Borrowers may pay cash dividends to the Company on each dividend or interest payment date with respect to such Refinancing Securities, provided, that (i) the -------- an aggregate amount of such dividend payments shall not exceed an amount equal to $50,000,000, less the difference between the gross cash yielding proceeds of such ---- Refinancing Securities and the Net Cash Proceeds thereof (if such Net Cash Proceeds are not less than $200,000,000) and (ii) 86,000,000 in the Company shall use the proceeds of such dividends solely for the payment of scheduled dividend and interest payments to the holders of such Refinancing Securities; and (f) the Company shall be permitted to repurchase its capital stock owned by employees or former employees so long as (i) no Event of Default has occurred and is continuing hereunder at the time of such repurchase or would occur after giving effect thereto and (ii) the aggregate amount paid, or proposed to be paid, by the Company with respect to such repurchase, when aggregated with all previous repurchases of its capital stock made since the date hereof, does not exceed $2,000,000aggregate.

Limitations on Dividends and Distributions. Declare or pay any ------------------------------------------ dividends upon any of its capital stock or other equity interestsCapital Stock; purchase, redeem, retire or otherwise acquire, directly or indirectly, any shares of its capital stock or other equity interests; return capital of the Borrowers to the Company; Capital Stock, or make any distribution of cash, property or assets among the holders of shares of its capital stock or make other payments or distributions to any Affiliate of the Company or any of its SubsidiariesCapital Stock; provided, provided that, if no -------- Default or Event of Default has occurred and is continuing nor would occur as a result of the following action: (a) the Company and Borrower or any Subsidiary may pay dividends in shares of its Subsidiaries may make payments to Affiliates of fees or compensation for services which are in the nature of management, corporate overhead or administrative services to the extent such payments are reflected in the then effective Approved Budget or Approved Business Plan and do not exceed arms' length pricingown Capital Stock; (b) the Company and its Subsidiaries any Subsidiary may pay cash dividends to (including i) the Borrower or (ii) any other direct or indirect Subsidiary of the Borrower so long as the proceeds of such dividends are then subsequently paid-in-kind , in the form of cash dividends) in shares of their capital stock, to the Borrower; (c) any the Borrower may declare repurchase, redeem, retire or otherwise acquire Capital Stock of the Borrower or any Affiliate of the Borrower owned by employees of the Borrower or any Subsidiary or their assignees, estates and pay dividends and make any other distribution heirs, at a price not in excess of cash property or assets fair market value determined in good faith by the Board of Directors of the Borrower, in an aggregate amount not to another Borrower;exceed $5,000,000 during the term of this Agreement subsequent to the Closing Date; and (d) the Borrowers may pay cash dividends to the Company on each dividend payment date with respect to the Preferred Equity or the Replacement Equity, as applicable, and on each interest payment date with respect to the Bridge Loans or the Permanent Financing, in each case in an amount equal to the dividend payment and/or the interest payment payable on such date and which is permitted to be paid under this Agreement (and the Company may make corresponding cash dividend or interest payments, as applicable in respect of such equity or Debt, as applicable to the holders thereof), provided, that (i) the Company and the -------- Borrowers shall remain in compliance with the covenants set forth in Articles X and XI hereof after giving effect to such payment, and shall deliver evidence thereof reasonably satisfactory to the Administrative Agent, (ii) the Company Leverage Ratio shall not exceed 4.0 to 1.0 after giving effect to such payment and (iii) the Company shall use the proceeds of such dividends solely for the payment of scheduled dividend payments to the holders of the Preferred Equity or the Replacement Equity, as applicable or for the payment of scheduled interest payments on the Bridge Loans or the Permanent Financing, as applicable; (e) to the extent that the Company has issued Refinancing Securities for aggregate gross cash proceeds in excess of $200,000,000, in addition to the Preferred Equity or that portion of the Replacement Equity used to refinance the Preferred Equity in full, the Borrowers may pay cash dividends to the Company on each dividend or interest payment date with respect to such Refinancing Securities, provided, that (i) the -------- aggregate amount of such dividend payments shall not exceed an amount equal to $50,000,000, less the difference between the gross cash proceeds of such ---- Refinancing Securities and the Net Cash Proceeds thereof (if such Net Cash Proceeds are less than $200,000,000) and (ii) the Company shall use the proceeds of such dividends solely for the payment of scheduled dividend and interest payments to the holders of such Refinancing Securities; and (f) the Company shall be permitted to repurchase its capital stock owned by employees or former employees so long as (i) no Default or Event of Default has shall have occurred and is be continuing hereunder at the time of such repurchase or would occur after result therefrom, (ii) for a period of thirty (30) days prior to giving pro forma effect thereto and immediately after giving pro forma effect thereto, the sum of (A) the amount of cash and Cash Equivalents of the Borrower plus (B) the excess of the Total Revolving Credit Commitment over the outstanding Revolving Credit Loans, Swingline Loans and L/C Obligations, shall be no less than $40,000,000 and (iii) prior to giving pro forma effect thereto and immediately after giving pro forma effect thereto, the Consolidated Total Leverage Ratio is less than 1.00 to 1.00, the Borrower may declare and pay dividends on its Capital Stock and make purchases, repurchases, redemptions, retirements and other acquisitions for value of its Capital Stock (excluding repurchases, redemptions, retirements and other acquisitions permitted under Section 11.6(c), but including repurchases, redemptions, retirements and other acquisitions permitted under Section 11.6(e)) in an aggregate amount during the term of this Agreement subsequent to the Closing Date in an amount not to exceed the lesser of (A) $25,000,000 and (B) an amount equal to the sum of fifty percent (50%) of the Consolidated Net Income of the Borrower for each Fiscal Quarter (to the extent positive in such Fiscal Quarter) ending on and after June 30, 2012 and for which financial statements shall have been delivered pursuant to Section 8.1 at such time; and (e) so long as (i) no Default or Event of Default shall have occurred and be continuing or would result therefrom, (ii) prior to giving pro forma effect thereto and immediately after giving pro forma effect thereto, the Consolidated Total Leverage Ratio is less than 2.00 to 1.00 and (iii) prior to giving pro forma effect thereto and immediately after giving pro forma effect thereto, the aggregate amount paid, or proposed to be paid, by the Company with respect to such repurchase, when aggregated with all previous repurchases of its capital stock made since the date hereof, outstanding Revolving Credit Loans (other than L/C Obligations) does not exceed $2,000,00020,000,000, the Borrower may declare and pay dividends on its Capital Stock and make purchases, repurchases, redemptions, retirements and other acquisitions for value of its Capital Stock (excluding repurchases, redemptions, retirements and other acquisitions permitted under Section 11.6(c) and Section 11.6(d)) in an aggregate amount subsequent to the Closing Date not to exceed $5,000,000 in any Fiscal Year using existing cash and Cash Equivalents on the balance sheet of the Borrower at such time; provided that any unused portion of such amount from any Fiscal Year may be carried over solely for repurchases of the Borrower’s Capital Stock in the immediately following Fiscal Year (but may not be carried over to any subsequent Fiscal Year).