Common use of Dividends and Certain Other Restricted Payments Clause in Contracts

Dividends and Certain Other Restricted Payments. The Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to, (a) declare or pay any dividends on or make any other distributions in respect of any class or series of its capital stock or other equity interests (other than dividends or distributions payable solely in its capital stock or other equity interests), (b) directly or indirectly purchase, redeem, or otherwise acquire or retire any of its capital stock or other equity interests or any warrants, options, or similar instruments to acquire the same, or (c) make any voluntary prepayment on account of any Subordinated Debt or effect any voluntary redemption thereof with cash on hand and/or the proceeds of a Loan hereunder (collectively referred to herein as “Restricted Payments”); provided, however, that the foregoing shall not operate to prevent: (i) the making of dividends or distributions by any Wholly-Owned Subsidiary to the Borrower or any of its Restricted Subsidiaries; (ii) the making of Restricted Payments by any Restricted Subsidiary that is not a Wholly-Owned Subsidiary so long as (A) no Event of Default exists or would result from making such Restricted Payment and (B) such Restricted Payment is made to the equity holders of such Restricted Subsidiary on a pro rata basis based upon the percentage of equity in such Restricted Subsidiary held by such Restricted Subsidiary’s equity holders; (iii) the making of other Restricted Payments in an amount not to exceed $25,000,000 in any fiscal year; provided, no Event of Default exists or would result from making such Restricted Payment; (iv) the making of other Restricted Payments by any Loan Party or any Restricted Subsidiary in an unlimited basis, so long as (i) no Event of Default exists or would result from making such Restricted Payment, and (ii) after giving Pro Forma Effect to such Restricted Payment and any Indebtedness incurred in connection therewith, the Total Leverage Ratio (as determined by the financial statements delivered to the Administrative Agent pursuant to Section 8.05(a) or (b) hereof immediately prior to such Restricted Payment) is less than 3.75 to 1.00; (v) [reserved]; (vi) the Borrower may declare and directly or indirectly pay cash dividends and distributions to Holdings for redistribution to any direct or indirect parent thereof (x) for customary and reasonable out-of-pocket expenses, legal and accounting fees and expenses and overhead of such Person incurred in the ordinary course of business to the extent attributable to the business of the Borrower and the Restricted Subsidiaries and in the aggregate not to exceed $5,000,000 in any fiscal year and (y) for Public Company Costs; (vii) the Borrower may purchase or transfer funds to Holdings for redistribution to any direct or indirect parent thereof to fund the purchase of (with cash or notes) equity interests in such Person from former directors, officers or employees of such Person or its Subsidiaries (including Holdings, the Borrower or the Restricted Subsidiaries), their estates, beneficiaries under their estates, transferees, spouses or former spouses in connection with such person’s death, disability, retirement, severance or termination of such employee’s employment (or such officer’s office appointment or director’s directorship) and the Borrower may make distributions to Holdings for redistribution to any direct or indirect parent thereof to effect such purchases and/or to make payments on any notes issued in connection with any such repurchase; provided, however, that (i) no such purchase or distribution and no payment on any such note shall be made if an Event of Default shall have occurred and be continuing, (ii) no such note shall require any payment if such payment or a distribution by the Borrower to make such payment is prohibited by the terms hereof and (iii) the aggregate amount of all cash payments under this Section 8.12(vii) (including payments in respect of any such purchase or any such notes or any such distributions to Holdings for such purposes) shall not exceed in any fiscal year the sum (without duplication) of (A) the greater of (x) $37,500,000 and (y) 15% of Adjusted EBITDA for the most recently ended Test Period (with any unused amounts in any such fiscal year being carried over to the next succeeding fiscal year (with any unused amounts so carried over being further carried over to the next succeeding fiscal year if they are not used in such fiscal year)), plus (B) the amount of any cash equity contributions received by the Borrower for the purpose of making such payments and used for such purpose plus (C) key man life insurance proceeds received by the Borrower or any Restricted Subsidiary during such fiscal year; and (viii) the payment of any dividend or other distribution or the consummation of any irrevocable redemption within sixty (60) days after the date of declaration of the dividend or other distribution or giving of the redemption notice, as the case may be, if at the date of declaration or notice, the dividend or other distribution or redemption payment would have complied with the provisions of this Section 8.12; (ix) payments in respect of transfer pricing, cost-sharing arrangements (i.e., “cost-plus” arrangements) and associated “true-up” payments that are in the ordinary course of business and consistent with the historical practices of Holdings, the Borrower and any Restricted Subsidiary; (x) payments pursuant to and in accordance with stock option plans or other benefit plans for the management of employees of Holdings, the Borrower and its Subsidiaries. Without limiting any other provision contained herein and the other Loan Documents (including Section 8.22 hereof), payments made on account of any Indebtedness that can be converted into equity (including payments to redeem such Indebtedness prior its maturity date) shall not be deemed a Restricted Payment for purposes of this Section 8.12 until such Indebtedness is converted into equity. Notwithstanding anything to the contrary set forth in this Agreement, the making and payment of any Restricted Payment shall be permitted hereunder if at the time such Restricted Payment was declared, the making and payment thereof complied with the provisions of this Agreement (and so long as during any interim period, any calculation or measurement hereunder is made assuming such amount has been declared and paid).

Dividends and Certain Other Restricted Payments. The Neither the Borrower shall notnor Whitestone REIT shall, nor shall it they permit any of its Restricted Subsidiaries Material Subsidiary to, declare or make any Restricted Payment; provided that: (a) declare or pay any dividends on or the Borrower may make any other distributions in respect of any class or series of Restricted Payments to Whitestone REIT (which shall distribute such amounts to its capital stock or other equity interests holders) (other than dividends or distributions payable solely in its capital stock or other equity interests), (b) directly or indirectly purchase, redeem, or otherwise acquire or retire any of its capital stock or other equity interests or any warrants, options, or similar instruments to acquire the same, or (c) make any voluntary prepayment on account of any Subordinated Debt or effect any voluntary redemption thereof with cash on hand and/or the proceeds of a Loan hereunder (collectively referred to herein as “such Restricted Payments, which for the sake of clarity shall exclude those Restricted Payments otherwise permitted under Section 8.22(c) below, “Ordinary Dividends”)) up to an amount not to exceed the greater of (i) 95% of FFO for the most recently ended Rolling Period; and (ii) the amount required for Whitestone REIT to maintain its status as a real estate investment trust under applicable Legal Requirements; provided, howeverhowever if any Default or Event of Default under Section 9.1(j) or Section 9.1(k) has occurred and is continuing, that the foregoing Ordinary Dividends shall not operate to prevent:exceed the amounts described in clause (a)(ii) above; (i) the making of dividends any wholly‑owned Subsidiary may make Restricted Payments, directly or distributions by any Wholly-Owned Subsidiary indirectly, to the Borrower or any other wholly-owned Material Subsidiary of its Restricted Subsidiaries; (ii) the making of Restricted Payments by any Restricted Subsidiary that is not a Wholly-Owned Subsidiary so long as (A) no Event of Default exists or would result from making such Restricted Payment and (B) such Restricted Payment is made to the equity holders of such Restricted Subsidiary on a pro rata basis based upon the percentage of equity in such Restricted Subsidiary held by such Restricted Subsidiary’s equity holders; (iii) the making of other Restricted Payments in an amount not to exceed $25,000,000 in any fiscal year; provided, no Event of Default exists or would result from making such Restricted Payment; (iv) the making of other Restricted Payments by any Loan Party or any Restricted Subsidiary in an unlimited basis, so long as (i) no Event of Default exists or would result from making such Restricted Payment, Borrower and (ii) after giving Pro Forma Effect any non‑wholly‑owned Subsidiary may make Restricted Payments directly to its equity owners based on such Restricted Payment and any Indebtedness incurred in connection therewith, the Total Leverage Ratio (as determined by the financial statements delivered to the Administrative Agent pursuant to Section 8.05(a) or (b) hereof immediately prior to equity owners’ pro rata ownership of such Restricted Payment) is less than 3.75 to 1.00Subsidiary; (v) [reserved]; (vic) the Borrower may declare and directly make Restricted Payments to Whitestone REIT (which shall distribute such amounts to its equity holders) from capital gains from the sale, transfer, lease or indirectly pay cash dividends other disposition of its Property (such Restricted Payments, “Special Dividends”), which Special Dividends may be in excess of the thresholds set forth for Ordinary Dividends in clause (a) above, so long as at the time of declaration, no Default or Event of Default exists; (d) any of Whitestone REIT, the Borrower or any Subsidiary may declare and make dividend payments or other distributions payable solely in the common Stock of such entity including (i) “cashless exercises” of options granted under any share option plan adopted by the Borrower, (ii) distributions of rights or equity securities under any rights plan adopted by the Borrower and (iii) distributions (or effect stock splits or reverse stock splits) with respect to Holdings for redistribution its stock payable solely in additional shares of its stock; and (e) so long as no Change of Control results therefrom, Whitestone REIT, the Borrower and each Subsidiary may make Restricted Payments in connection with the implementation of or pursuant to any direct or indirect parent thereof (x) retirement, health, stock option and other benefit plans, bonus plans, performance based incentive plans, and other similar forms of compensation for customary the benefit of the directors, officers and reasonable out-of-pocket expensesemployees of Whitestone REIT, legal and accounting fees and expenses and overhead of such Person incurred in the ordinary course of business to the extent attributable to the business of the Borrower and the Restricted Subsidiaries and in the aggregate not to exceed $5,000,000 in any fiscal year and (y) for Public Company Costs; (vii) the Borrower may purchase or transfer funds to Holdings for redistribution to any direct or indirect parent thereof to fund the purchase of (with cash or notes) equity interests in such Person from former directors, officers or employees of such Person or its Subsidiaries (including Holdings, the Borrower or the Restricted Subsidiaries), their estates, beneficiaries under their estates, transferees, spouses or former spouses in connection with such person’s death, disability, retirement, severance or termination of such employee’s employment (or such officer’s office appointment or director’s directorship) and the Borrower may make distributions to Holdings for redistribution to any direct or indirect parent thereof to effect such purchases and/or to make payments on any notes issued in connection with any such repurchase; provided, however, that (i) no such purchase or distribution and no payment on any such note shall be made if an Event of Default shall have occurred and be continuing, (ii) no such note shall require any payment if such payment or a distribution by the Borrower to make such payment is prohibited by the terms hereof and (iii) the aggregate amount of all cash payments under this Section 8.12(vii) (including payments in respect of any such purchase or any such notes or any such distributions to Holdings for such purposes) shall not exceed in any fiscal year the sum (without duplication) of (A) the greater of (x) $37,500,000 and (y) 15% of Adjusted EBITDA for the most recently ended Test Period (with any unused amounts in any such fiscal year being carried over to the next succeeding fiscal year (with any unused amounts so carried over being further carried over to the next succeeding fiscal year if they are not used in such fiscal year)), plus (B) the amount of any cash equity contributions received by the Borrower for the purpose of making such payments and used for such purpose plus (C) key man life insurance proceeds received by the Borrower or any Restricted Subsidiary during such fiscal year; and (viii) the payment of any dividend or other distribution or the consummation of any irrevocable redemption within sixty (60) days after the date of declaration of the dividend or other distribution or giving of the redemption notice, as the case may be, if at the date of declaration or notice, the dividend or other distribution or redemption payment would have complied with the provisions of this Section 8.12; (ix) payments in respect of transfer pricing, cost-sharing arrangements (i.e., “cost-plus” arrangements) and associated “true-up” payments that are in the ordinary course of business and consistent with the historical practices of Holdings, the Borrower and any Restricted Subsidiary; (x) payments pursuant to and in accordance with stock option plans or other benefit plans for the management of employees of Holdings, the Borrower and its Subsidiaries. Without limiting any other provision contained herein and the other Loan Documents (including Section 8.22 hereof), payments made on account of any Indebtedness that can be converted into equity (including payments to redeem such Indebtedness prior its maturity date) shall not be deemed a Restricted Payment for purposes of this Section 8.12 until such Indebtedness is converted into equity. Notwithstanding anything to the contrary set forth in this Agreement, the making and payment of any Restricted Payment shall be permitted hereunder if at the time such Restricted Payment was declared, the making and payment thereof complied with the provisions of this Agreement (and so long as during any interim period, any calculation or measurement hereunder is made assuming such amount has been declared and paid).

Dividends and Certain Other Restricted Payments. The Borrower Credit Parties shall not, nor shall it they permit any of its Restricted Subsidiaries Subsidiary to, (a) declare or pay any dividends on or make any other distributions in respect of any class or series of its capital stock or other equity interests (other than dividends or distributions payable solely in its capital stock or other equity interests), (b) directly or indirectly purchase, redeem, or otherwise acquire or retire any of its capital stock or other equity interests or any warrants, options, or similar instruments to acquire the same, or (c) make any voluntary prepayment on account of any Subordinated Debt or effect any voluntary redemption thereof with cash on hand and/or the proceeds of a Loan hereunder (collectively referred to herein as “Restricted Payments”); provided, however, that the foregoing shall not operate to prevent: prevent the following (all of which are referred to collectively as “Restricted Payments”): (i) the making of dividends or distributions by any Wholly-Owned owned Subsidiary of any Credit Party to the Borrower or any of its Restricted Subsidiaries; parent corporation, (ii) dividends payable solely in the making same class of Restricted Payments by any Restricted Subsidiary that is not a Wholly-Owned Subsidiary so long as (A) no Event of Default exists or would result from making such Restricted Payment and (B) such Restricted Payment is made to the equity holders capital stock of such Restricted Subsidiary on a pro rata basis based upon the percentage of equity in such Restricted Subsidiary held by such Restricted Subsidiary’s equity holders; Person, (iii) the making of other Restricted Payments in an amount not regularly scheduled dividends to exceed $25,000,000 in any fiscal year; providedthe Company’s shareholders, provided that (A) no Default or Event of Default exists has occurred and is continuing at such time or would be directly or indirectly caused as a result from making thereof and (B) such Restricted Payment; dividends shall be paid out of Net Income, and (iv) the making Company’s repurchase of other Restricted Payments by any Loan Party shares of its capital stock on the open market or any Restricted Subsidiary in an unlimited basisnon-scheduled, so long as non-recurring dividends, provided that (iA) no Default or Event of Default exists has occurred and is continuing at such time or would be directly or indirectly caused as a result from making such Restricted Paymentthereof on an actual or pro forma basis, and (iiB) after giving Pro Forma Effect effect to such Restricted Payment and any Indebtedness incurred in connection therewithrepurchase or dividend, the Total Borrowers would have a Leverage Ratio on a pro forma basis of at least 0.25:1.00 below the then maximum Leverage Ratio permitted by Section 8.21(i), (as determined by the financial statements delivered to the Administrative Agent pursuant to Section 8.05(aC) or (b) hereof immediately prior after giving effect to such Restricted Payment) is less than 3.75 to 1.00; (v) [reserved]; (vi) the Borrower may declare and directly repurchase or indirectly pay cash dividends and distributions to Holdings for redistribution to any direct or indirect parent thereof (x) for customary and reasonable out-of-pocket expensesdividend, legal and accounting fees and expenses and overhead of such Person incurred there shall be at least $35,000,000 in the ordinary course of business to the extent attributable to the business of the Borrower and the Restricted Subsidiaries and in the aggregate not to exceed $5,000,000 in any fiscal year Unused Revolving Credit Commitments and (y) for Public Company Costs; (vii) the Borrower may purchase or transfer funds to Holdings for redistribution to any direct or indirect parent thereof to fund the purchase of (with cash or notes) equity interests in such Person from former directors, officers or employees of such Person or its Subsidiaries (including Holdings, the Borrower or the Restricted Subsidiaries), their estates, beneficiaries under their estates, transferees, spouses or former spouses in connection with such person’s death, disability, retirement, severance or termination of such employee’s employment (or such officer’s office appointment or director’s directorship) and the Borrower may make distributions to Holdings for redistribution to any direct or indirect parent thereof to effect such purchases and/or to make payments on any notes issued in connection with any such repurchase; provided, however, that (i) no such purchase or distribution and no payment on any such note shall be made if an Event of Default shall have occurred and be continuing, (ii) no such note shall require any payment if such payment or a distribution by the Borrower to make such payment is prohibited by the terms hereof and (iiiD) the aggregate amount of all cash payments under this Section 8.12(vii) (including payments in respect of any such purchase or any such notes or any such distributions to Holdings for such purposes) share repurchase or non-scheduled, non-recurring dividend shall not exceed in any $5,000,000 for each fiscal year the sum (without duplication) of (A) the greater of (x) $37,500,000 and (y) 15% of Adjusted EBITDA for the most recently ended Test Period (with any unused amounts in any such fiscal year being carried over to the next succeeding fiscal year (with any unused amounts so carried over being further carried over to the next succeeding fiscal year if they are not used in such fiscal year)), plus (B) the amount of any cash equity contributions received by the Borrower for the purpose of making such payments and used for such purpose plus (C) key man life insurance proceeds received by the Borrower or any Restricted Subsidiary during such fiscal year; and (viii) the payment of any dividend or other distribution or the consummation of any irrevocable redemption within sixty (60) days after the date of declaration of the dividend or other distribution or giving Company and $15,000,000 during the term of the redemption notice, as the case may be, if at the date of declaration or notice, the dividend or other distribution or redemption payment would have complied with the provisions of this Section 8.12; (ix) payments in respect of transfer pricing, cost-sharing arrangements (i.e., “cost-plus” arrangements) and associated “true-up” payments that are in the ordinary course of business and consistent with the historical practices of Holdings, the Borrower and any Restricted Subsidiary; (x) payments pursuant to and in accordance with stock option plans or other benefit plans for the management of employees of Holdings, the Borrower and its Subsidiaries. Without limiting any other provision contained herein and the other Loan Documents (including Section 8.22 hereof), payments made on account of any Indebtedness that can be converted into equity (including payments to redeem such Indebtedness prior its maturity date) shall not be deemed a Restricted Payment for purposes of this Section 8.12 until such Indebtedness is converted into equity. Notwithstanding anything to the contrary set forth in this Agreement, the making and payment of any Restricted Payment shall be permitted hereunder if at the time such Restricted Payment was declared, the making and payment thereof complied with the provisions of this Agreement (and so long as during any interim period, any calculation or measurement hereunder is made assuming such amount has been declared and paid)facilities.

Dividends and Certain Other Restricted Payments. The Borrower shall notNo Loan Party shall, nor shall it permit any of its Restricted Subsidiaries to, (a) declare or pay any dividends on or make any other distributions in respect of any class or series of its capital stock or other equity interests (other than dividends or distributions payable solely in its capital stock or other equity interests), (b) directly or indirectly purchase, redeem, or otherwise acquire or retire any of its capital stock or other equity interests or any warrants, options, or similar instruments to acquire the same, or (c) make any voluntary prepayment on account of any Subordinated Debt or effect any voluntary redemption thereof with cash on hand and/or the proceeds of a Loan hereunder (collectively referred to herein as “Restricted Payments”); provided, however, that the foregoing shall not operate to prevent: (i) the making of dividends or distributions by any Wholly-Owned Subsidiary to the Borrower or any of its Restricted Subsidiaries; (ii) the making of Restricted Payments by any Restricted Subsidiary that is not a Wholly-Owned Subsidiary so long as (A) no Event of Default exists or would result from making such Restricted Payment and (B) such Restricted Payment is made to the equity holders of such Restricted Subsidiary on a pro rata basis based upon the percentage of equity in such Restricted Subsidiary held by such Restricted Subsidiary’s equity holders; (iii) the making of other Restricted Payments by any Loan Party or any Restricted Subsidiary in an aggregate amount not to exceed $25,000,000 exceed, in any fiscal year; providedTest Period, 50% of the amount by which the Adjusted EBITDA of the Borrower and its Restricted Subsidiaries for the Test Period ended immediately prior to such Test Period exceeds $50,000,000, so long as no Event of Default exists or would result from making such Restricted Payment;; and (iv) the making of other Restricted Payments by any Loan Party or any Restricted Subsidiary in an unlimited basis, so long as (i) no Event of Default exists or would result from making such Restricted Payment, and (ii) after giving Pro Forma Effect pro forma effect to such Restricted Payment and any Indebtedness incurred in connection therewith, the Total Leverage Ratio (as determined by the financial statements delivered to the Administrative Agent pursuant to Section 8.05(a8.5(a) or (b) hereof immediately prior to such Restricted Payment) is less than 3.75 2.50 to 1.00; (v) [reserved]; (vi) the Borrower may declare and directly or indirectly pay cash dividends and distributions to Holdings for redistribution to any direct or indirect parent thereof (x) for customary and reasonable out-of-pocket expenses, legal and accounting fees and expenses and overhead of such Person incurred in the ordinary course of business to the extent attributable to the business of the Borrower and the Restricted Subsidiaries and in the aggregate not to exceed $5,000,000 in any fiscal year and (y) for Public Company Costs; (vii) the Borrower may purchase or transfer funds to Holdings for redistribution to any direct or indirect parent thereof to fund the purchase of (with cash or notes) equity interests in such Person from former directors, officers or employees of such Person or its Subsidiaries (including Holdings, the Borrower or the Restricted Subsidiaries), their estates, beneficiaries under their estates, transferees, spouses or former spouses in connection with such person’s death, disability, retirement, severance or termination of such employee’s employment (or such officer’s office appointment or director’s directorship) and the Borrower may make distributions to Holdings for redistribution to any direct or indirect parent thereof to effect such purchases and/or to make payments on any notes issued in connection with any such repurchase; provided, however, that (i) no such purchase or distribution and no payment on any such note shall be made if an Event of Default shall have occurred and be continuing, (ii) no such note shall require any payment if such payment or a distribution by the Borrower to make such payment is prohibited by the terms hereof and (iii) the aggregate amount of all cash payments under this Section 8.12(vii) (including payments in respect of any such purchase or any such notes or any such distributions to Holdings for such purposes) shall not exceed in any fiscal year the sum (without duplication) of (A) the greater of (x) $37,500,000 and (y) 15% of Adjusted EBITDA for the most recently ended Test Period (with any unused amounts in any such fiscal year being carried over to the next succeeding fiscal year (with any unused amounts so carried over being further carried over to the next succeeding fiscal year if they are not used in such fiscal year)), plus (B) the amount of any cash equity contributions received by the Borrower for the purpose of making such payments and used for such purpose plus (C) key man life insurance proceeds received by the Borrower or any Restricted Subsidiary during such fiscal year; and (viii) the payment of any dividend or other distribution or the consummation of any irrevocable redemption within sixty (60) days after the date of declaration of the dividend or other distribution or giving of the redemption notice, as the case may be, if at the date of declaration or notice, the dividend or other distribution or redemption payment would have complied with the provisions of this Section 8.12; (ix) payments in respect of transfer pricing, cost-sharing arrangements (i.e., “cost-plus” arrangements) and associated “true-up” payments that are in the ordinary course of business and consistent with the historical practices of Holdings, the Borrower and any Restricted Subsidiary; (x) payments pursuant to and in accordance with stock option plans or other benefit plans for the management of employees of Holdings, the Borrower and its Subsidiaries. Without limiting any other provision contained herein and the other Loan Documents (including Section 8.22 hereof), payments made on account of any Indebtedness that can be converted into equity (including payments to redeem such Indebtedness prior its maturity date) shall not be deemed a Restricted Payment for purposes of this Section 8.12 until such Indebtedness is converted into equity. Notwithstanding anything to the contrary set forth in this Agreement, the making and payment of any Restricted Payment shall be permitted hereunder if at the time such Restricted Payment was declared, the making and payment thereof complied with the provisions of this Agreement (and so long as during any interim period, any calculation or measurement hereunder is made assuming such amount has been declared and paid).

Dividends and Certain Other Restricted Payments. The Borrower shall notNo Loan Party shall, nor shall it permit any of its Restricted Subsidiaries to, (a) declare or pay any dividends on or make any other distributions in respect of any class or series of its capital stock or other equity interests (other than dividends or distributions payable solely in its capital stock or other equity interests), (b) directly or indirectly purchase, redeem, or otherwise acquire or retire any of its capital stock or other equity interests or any warrants, options, or similar instruments to acquire the same, or (c) make any voluntary prepayment on account of any Subordinated Debt or effect any voluntary redemption thereof with cash on hand and/or the proceeds of a Revolving Loan hereunder (collectively referred to herein as “Restricted Payments”); provided, however, that the foregoing shall not operate to prevent: (i) the making of dividends or distributions by any Wholly-Wholly Owned Subsidiary to the Borrower or any of its Restricted Subsidiaries; (ii) the making of Restricted Payments by any Restricted Subsidiary that is not a Wholly-Wholly Owned Subsidiary so long as (A) no Event of Default exists or would result from making such Restricted Payment and (B) such Restricted Payment is made to the equity holders of such Restricted Subsidiary on a pro rata basis based upon the percentage of equity in such Restricted Subsidiary held by such Restricted Subsidiary’s equity holders; (iii) at Borrower’s election, the making of other a one-time Restricted Payments Payment for a stock repurchase program approved by the board of directors of Borrower following an equity share issuance in one fiscal year during the term of the Facility in an aggregate amount not to exceed the lesser of $25,000,000 in any fiscal year; provided, no Event 50,000,000 and 50% of Default exists or would result from making such Restricted PaymentConsolidated EBITDA for the most recently ended Test Period; (iv) the making of other Restricted Payments by any Loan Party or any Restricted Subsidiary Payments, in an unlimited basis, so long as (i) no Event of Default exists or would result from making such Restricted Payment, and (ii) after giving Pro Forma Effect to such Restricted Payment and any Indebtedness incurred in connection therewith, the Total Leverage Ratio (as determined by the financial statements delivered to the Administrative Agent pursuant to Section 8.05(a) or (b) hereof immediately prior to such Restricted Payment) is less than 3.75 to 1.00; (v) [reserved]; (vi) the Borrower may declare and directly or indirectly pay cash dividends and distributions to Holdings for redistribution to any direct or indirect parent thereof (x) for customary and reasonable out-of-pocket expenses, legal and accounting fees and expenses and overhead of such Person incurred in the ordinary course of business to the extent attributable to the business of the Borrower and the Restricted Subsidiaries and in the aggregate amount not to exceed $5,000,000 exceeding in any fiscal year the greater of (x) $15,000,000 and (y) 16.5% of Consolidated EBITDA for Public Company Costs; (vii) the Borrower may purchase or transfer funds to Holdings for redistribution to any direct or indirect parent thereof to fund the purchase of (with cash or notes) equity interests in such Person from former directorsmost recently ended Test Period, officers or employees of such Person or its Subsidiaries (including Holdings, the Borrower or the Restricted Subsidiaries), their estates, beneficiaries under their estates, transferees, spouses or former spouses in connection with such person’s death, disability, retirement, severance or termination of such employee’s employment (or such officer’s office appointment or director’s directorship) and the Borrower may make distributions to Holdings for redistribution to any direct or indirect parent thereof to effect such purchases and/or to make payments on any notes issued in connection with any such repurchase; provided, however, provided that (iA) no such purchase or distribution and no payment on any such note shall be made if an Event of Default shall have occurred and be continuing, (ii) no such note shall require any payment if such payment continuing or a distribution by the Borrower to make such payment is prohibited by the terms hereof would result therefrom and (iii) the aggregate amount of all cash payments under this Section 8.12(vii) (including payments in respect of any such purchase or any such notes or any such distributions to Holdings for such purposes) shall not exceed in any fiscal year the sum (without duplication) of (A) the greater of (x) $37,500,000 and (y) 15% of Adjusted EBITDA for the most recently ended Test Period (with any unused amounts in any such fiscal year being carried over to the next succeeding fiscal year (with any unused amounts so carried over being further carried over to the next succeeding fiscal year if they are not used in such fiscal year)), plus (B) the amount Borrower shall be in compliance with the covenants set forth in Section 7.13 on a pro forma basis after giving effect to such Restricted Payment; (v) the making of Restricted Payments so long as (1) no Event of Default shall have occurred and be continuing or would result therefrom and (2) on a pro forma basis after giving effect to such Restricted Payment and any cash equity contributions received by pro forma adjustments described in Section 1.6, the Borrower for Total Leverage Ratio is equal to or less than 1.75 to 1.00; (vi) the purpose making of making such payments Restricted Payments consisting of (i) investments expressly permitted under Section 7.3 (other than Section 7.3(t)) and used for such purpose plus (Cii) key man life insurance proceeds received by the Borrower or any Restricted Subsidiary during such fiscal yearDispositions expressly permitted under Section 7.4 (other than Section 7.4(q)); and (viiivii) the payment making of Restricted Payments to Borrower by any Subsidiary of Borrower to permit Borrower to pay any income Taxes attributable to the income of such Subsidiary; provided, however, that the amount of any dividend or other distribution or such Restricted Payment from any Subsidiary for any taxable 739016937 20664705 period shall not exceed the consummation amount of such income Taxes that such Subsidiary would owe for such taxable period if it were a standalone corporation. Except with respect to Restricted Payments on account of any irrevocable redemption within sixty Subordinated Debt set forth in clause (60c) days after the date of declaration of the dividend or other distribution or giving of the redemption notice, as the case may be, if at the date of declaration or notice, the dividend or other distribution or redemption payment would have complied with the provisions of this Section 8.12; (ix) payments in respect of transfer pricing, cost-sharing arrangements (i.e., “cost-plus” arrangements) above and associated “true-up” payments that are in the ordinary course of business and consistent with the historical practices of Holdings, the Borrower and any Restricted Subsidiary; (x) payments pursuant to and in accordance with stock option plans or other benefit plans for the management of employees of Holdings, the Borrower and its Subsidiaries. Without without limiting any other provision contained herein and the other Loan Documents (including Section 8.22 7.11 hereof), payments made on account of any Indebtedness that can be converted into equity (including payments to redeem such Indebtedness prior its maturity date) shall not be deemed a Restricted Payment for purposes of this Section 8.12 7.6 until such Indebtedness is converted into equity. Notwithstanding anything to the contrary set forth in this Agreement, the making and payment of any Restricted Payment shall be permitted hereunder if at the time such Restricted Payment was declared, the making and payment thereof complied with the provisions of this Agreement (and so long as during any interim period, any calculation or measurement hereunder is made assuming such amount has been declared and paid).

Dividends and Certain Other Restricted Payments. The Borrower shall notNo Loan Party shall, nor shall it permit any of its Restricted Subsidiaries to, (a) declare or pay any dividends on or make any other distributions in respect of any class or series of its capital stock or other equity interests (other than dividends or distributions payable solely in its capital stock or other equity interests), (b) directly or indirectly purchase, redeem, or otherwise acquire or retire any of its capital stock or other equity interests or any warrants, options, or similar instruments to acquire the same, or (c) make any voluntary prepayment on account of any Subordinated Debt or effect any voluntary redemption thereof with cash on hand and/or the proceeds of a Loan hereunder (collectively referred to herein as “Restricted Payments”); provided, however, that the foregoing shall not operate to prevent: (i) the making of dividends or distributions by any Wholly-Wholly Owned Subsidiary to the Borrower or any of its Restricted Subsidiaries; (ii) the making of Restricted Payments by any Restricted Subsidiary that is not a Wholly-Wholly Owned Subsidiary so long as (A) no Event of Default exists or would result from making such Restricted Payment and (B) such Restricted Payment is made to the equity holders of such Restricted Subsidiary on a pro rata basis based upon the percentage of equity in such Restricted Subsidiary held by such Restricted Subsidiary’s equity holders; (iii) so long as no Event of Default shall have occurred and be continuing or would result therefrom, at Borrower’s election, the making of other a one-time Restricted Payments Payment for a stock repurchase program approved by the board of directors of Borrower following an equity share issuance in one fiscal year during the term of this Agreement in an aggregate amount not to exceed the lesser of $25,000,000 in any fiscal year; provided, no Event 50,000,000 and 50% of Default exists or would result from making such Restricted PaymentConsolidated EBITDA for the most recently ended Test Period; (iv) the making of other Restricted Payments by any Loan Party or any Restricted Subsidiary Payments, in an unlimited basis, so long as (i) no Event of Default exists or would result from making such Restricted Payment, and (ii) after giving Pro Forma Effect to such Restricted Payment and any Indebtedness incurred in connection therewith, the Total Leverage Ratio (as determined by the financial statements delivered to the Administrative Agent pursuant to Section 8.05(a) or (b) hereof immediately prior to such Restricted Payment) is less than 3.75 to 1.00; (v) [reserved]; (vi) the Borrower may declare and directly or indirectly pay cash dividends and distributions to Holdings for redistribution to any direct or indirect parent thereof (x) for customary and reasonable out-of-pocket expenses, legal and accounting fees and expenses and overhead of such Person incurred in the ordinary course of business to the extent attributable to the business of the Borrower and the Restricted Subsidiaries and in the aggregate amount not to exceed $5,000,000 exceeding in any fiscal year the greater of (x) $15,000,000 and (y) 16.5% of Consolidated EBITDA for Public Company Costs; (vii) the Borrower may purchase or transfer funds to Holdings for redistribution to any direct or indirect parent thereof to fund the purchase of (with cash or notes) equity interests in such Person from former directorsmost recently ended Test Period, officers or employees of such Person or its Subsidiaries (including Holdings, the Borrower or the Restricted Subsidiaries), their estates, beneficiaries under their estates, transferees, spouses or former spouses in connection with such person’s death, disability, retirement, severance or termination of such employee’s employment (or such officer’s office appointment or director’s directorship) and the Borrower may make distributions to Holdings for redistribution to any direct or indirect parent thereof to effect such purchases and/or to make payments on any notes issued in connection with any such repurchase; provided, however, provided that (iA) no such purchase or distribution and no payment on any such note shall be made if an Event of Default shall have occurred and be continuingcontinuing or would result therefrom and (B) Borrower shall be in compliance with the covenants set forth in Section 7.13 on a pro forma basis after giving effect to such Restricted Payment; (v) the making of Restricted Payments so long as (1) no Event of Default shall have occurred and be continuing or would result therefrom and (2) on a pro forma basis after giving effect to such Restricted Payment and any pro forma adjustments described in Section 1.6, the Total Leverage Ratio is equal to or less than 1.75 to 1.00; (vi) the making of Restricted Payments consisting of (i) investments expressly permitted under Section 7.3 (other than Section 7.3(t)) and (ii) no such note shall require Dispositions expressly permitted under Section 7.4 (other than Section 7.4(q)); and 744209099 20664705 (vii) the making of Restricted Payments to Borrower by any payment if such payment or a distribution by the Subsidiary of Borrower to make such payment is prohibited by the terms hereof and (iii) the aggregate amount of all cash payments under this Section 8.12(vii) (including payments in respect of permit Borrower to pay any such purchase or any such notes or any such distributions to Holdings for such purposes) shall not exceed in any fiscal year the sum (without duplication) of (A) the greater of (x) $37,500,000 and (y) 15% of Adjusted EBITDA for the most recently ended Test Period (with any unused amounts in any such fiscal year being carried over income Taxes attributable to the next succeeding fiscal year (with any unused amounts so carried over being further carried over to the next succeeding fiscal year if they are not used in income of such fiscal year))Subsidiary; provided, plus (B) however, that the amount of any cash equity contributions received by such Restricted Payment from any Subsidiary for any taxable period shall not exceed the Borrower for the purpose amount of making such payments and used income Taxes that such Subsidiary would owe for such purpose plus (C) key man life insurance proceeds received by the Borrower or any taxable period if it were a standalone corporation. Except with respect to Restricted Subsidiary during such fiscal year; and (viii) the payment Payments on account of any dividend or other distribution or the consummation of any irrevocable redemption within sixty Subordinated Debt set forth in clause (60c) days after the date of declaration of the dividend or other distribution or giving of the redemption notice, as the case may be, if at the date of declaration or notice, the dividend or other distribution or redemption payment would have complied with the provisions of this Section 8.12; (ix) payments in respect of transfer pricing, cost-sharing arrangements (i.e., “cost-plus” arrangements) above and associated “true-up” payments that are in the ordinary course of business and consistent with the historical practices of Holdings, the Borrower and any Restricted Subsidiary; (x) payments pursuant to and in accordance with stock option plans or other benefit plans for the management of employees of Holdings, the Borrower and its Subsidiaries. Without without limiting any other provision contained herein and the other Loan Documents (including Section 8.22 7.11 hereof), payments made on account of any Indebtedness that can be converted into equity (including payments to redeem such Indebtedness prior its maturity date) shall not be deemed a Restricted Payment for purposes of this Section 8.12 7.6 until such Indebtedness is converted into equity. Notwithstanding anything to the contrary set forth in this Agreement, the making and payment of any Restricted Payment shall be permitted hereunder if at the time such Restricted Payment was declared, the making and payment thereof complied with the provisions of this Agreement (and so long as during any interim period, any calculation or measurement hereunder is made assuming such amount has been declared and paid).

Dividends and Certain Other Restricted Payments. The Borrower shall not, nor shall it permit any of its Restricted Subsidiaries Subsidiary to, (a) declare or pay any dividends on or make any other distributions in respect of any class or series of its capital stock or other equity interests (other than dividends or distributions payable solely in its capital stock or other equity interests), or (b) directly or indirectly purchase, redeem, or otherwise acquire or retire any of its capital stock or other equity interests or any warrants, options, or similar instruments to acquire the same, or (c) make any voluntary prepayment on account of any Subordinated Debt or effect any voluntary redemption thereof with cash on hand and/or the proceeds of a Loan hereunder (collectively referred to herein as “Restricted Payments”); provided, however, that the foregoing shall not operate to prevent: (i) the making of dividends or distributions by any Wholly-Owned Subsidiary to the Borrower or any of its Restricted Subsidiariesanother Subsidiary; (ii) the making payment of Restricted Payments dividends and other distributions by any Restricted Subsidiary that is not a Wholly-Owned Subsidiary the Borrower and BGC Holdings so long as (A) no Unmatured Termination Event, Termination Event, Default or Event of Default exists shall exist before or would result from making after giving effect to such Restricted Payment payment, and (B) such Restricted Payment is made to if at any time during a fiscal quarter the equity holders aggregate amount of such Restricted Subsidiary on a pro rata basis based upon the percentage of equity in such Restricted Subsidiary held by such Restricted Subsidiary’s equity holders; (iii) the making of other Restricted Payments in an amount not (net of all cash proceeds of new equity issuances received during the same period) made pursuant to exceed $25,000,000 in any fiscal year; provided, no Event of Default exists or would result from making such Restricted Payment; (iv) the making of other Restricted Payments by any Loan Party or any Restricted Subsidiary in an unlimited basis, so long as (i) no Event of Default exists or would result from making such Restricted Payment, and this clause (ii) after giving Pro Forma Effect to such Restricted Payment and any Indebtedness incurred in connection therewithexceeds $25,000,000, the Total Leverage Ratio (as determined by the financial statements Borrower shall have delivered to the Administrative Agent pursuant covenant compliance calculations reasonably satisfactory to the Administrative Agent demonstrating compliance with the financial covenants contained in Section 8.05(a) or (b) 8.22 hereof immediately prior on a pro forma basis after giving effect to such Restricted Payment) is less than 3.75 to 1.00; payment, and (v) [reserved]; (viC) the Borrower may declare shall have Excess Availability of not less than $25,000,000 after giving effect to such payment; and (iii) repurchases, redemptions, exchanges and directly or indirectly pay cash dividends other payments in respect thereof of stock and distributions to Holdings for redistribution to any direct or indirect parent thereof (x) for customary and reasonable out-of-pocket expenses, legal and accounting fees and expenses and overhead of such Person incurred in the ordinary course of business to the extent attributable to the business of partnership interests by the Borrower and the Restricted Subsidiaries and in the aggregate not to exceed $5,000,000 in any fiscal year and (y) for Public Company Costs; (vii) the Borrower may purchase or transfer funds to Holdings for redistribution to any direct or indirect parent thereof to fund the purchase of (with cash or notes) equity interests in such Person from former directors, officers or employees of such Person or its Subsidiaries (including Holdings, the Borrower or the Restricted Subsidiaries), their estates, beneficiaries under their estates, transferees, spouses or former spouses in connection with such person’s death, disability, retirement, severance or termination of such employee’s employment (or such officer’s office appointment or director’s directorship) related to employee compensation and the Borrower may make distributions to Holdings for redistribution to any direct or indirect parent thereof to effect such purchases and/or to make payments on any notes charitable contributions and stock and partnership interests issued in connection with any such repurchase; provided, however, that Permitted Acquisitions so long as (iA) no such purchase Unmatured Termination Event, Termination Event, Default or distribution and no payment on any such note shall be made if an Event of Default shall have occurred and be continuingexist before or after giving effect to such payment, (ii) no such note shall require any payment if such payment or a distribution by the Borrower to make such payment is prohibited by the terms hereof and (iiiB) if at any time during a fiscal quarter the aggregate amount of Restricted Payments (net of all cash payments under proceeds of new equity issuances received during the same period) made pursuant to this Section 8.12(viiclause (iii) (including payments in respect of any such purchase or any such notes or any such distributions to Holdings for such purposes) exceeds $25,000,000, the Borrower shall not exceed in any fiscal year the sum (without duplication) of (A) the greater of (x) $37,500,000 and (y) 15% of Adjusted EBITDA for the most recently ended Test Period (with any unused amounts in any such fiscal year being carried over have delivered to the next succeeding fiscal year (with any unused amounts so carried over being further carried over Administrative Agent covenant compliance calculations reasonably satisfactory to the next succeeding fiscal year if they are not used Administrative Agent demonstrating compliance with the financial covenants contained in Section 8.22 hereof on a pro forma basis after giving effect to such fiscal year))payment, plus (B) the amount of any cash equity contributions received by the Borrower for the purpose of making such payments and used for such purpose plus (C) key man life insurance proceeds received by the Borrower or any Restricted Subsidiary during shall have Excess Availability of not less than $25,000,000 after giving effect to such fiscal year; and (viii) the payment of any dividend or other distribution or the consummation of any irrevocable redemption within sixty (60) days after the date of declaration of the dividend or other distribution or giving of the redemption notice, as the case may be, if at the date of declaration or notice, the dividend or other distribution or redemption payment would have complied with the provisions of this Section 8.12; (ix) payments in respect of transfer pricing, cost-sharing arrangements (i.e., “cost-plus” arrangements) and associated “true-up” payments that are in the ordinary course of business and consistent with the historical practices of Holdings, the Borrower and any Restricted Subsidiary; (x) payments pursuant to and in accordance with stock option plans or other benefit plans for the management of employees of Holdings, the Borrower and its Subsidiaries. Without limiting any other provision contained herein and the other Loan Documents (including Section 8.22 hereof), payments made on account of any Indebtedness that can be converted into equity (including payments to redeem such Indebtedness prior its maturity date) shall not be deemed a Restricted Payment for purposes of this Section 8.12 until such Indebtedness is converted into equity. Notwithstanding anything to the contrary set forth in this Agreement, the making and payment of any Restricted Payment shall be permitted hereunder if at the time such Restricted Payment was declared, the making and payment thereof complied with the provisions of this Agreement (and so long as during any interim period, any calculation or measurement hereunder is made assuming such amount has been declared and paid)payment.

Dividends and Certain Other Restricted Payments. The Borrower shall not, nor shall it permit any of its Restricted Subsidiaries Subsidiary to, (a) declare or pay any dividends on or make any other distributions in respect of any class or series of its capital stock or other equity interests (other than dividends or distributions payable solely in its capital stock or other equity interests), (b) directly or indirectly purchase, redeem, or otherwise acquire or retire any of its capital stock or other equity interests or any warrants, options, or similar instruments to acquire the same, or (c) make directly or indirectly pay any voluntary prepayment on account management, consulting or similar fees to any of any Subordinated Debt or effect any voluntary redemption thereof with cash on hand and/or its Affiliates (all of the proceeds of a Loan hereunder (collectively referred to herein as foregoing, collectively, the “Restricted Payments”); provided, however, that the foregoing shall not operate to prevent: prevent (iv) the declaration, payment or making of dividends or distributions payable solely in common stock or other common equity interests which do not by their terms, entitle the holder to receive guaranteed cash dividends or distributions, (w) the payment of any management, consulting or similar fees to the Borrower or any Wholly-owned Subsidiary of the Borrower, (x) the declaration, payment or making of dividends or distributions by any Wholly-Owned Subsidiary of the Borrower to the Borrower or any of its Restricted Subsidiaries; (ii) the making of Restricted Payments by any Restricted Subsidiary that is not a Wholly-Owned owned Subsidiary so long as of the Borrower, (Ay) the payment by the Borrower, at any time when no Default or Event of Default exists or would result from making such Restricted Payment and be caused thereby, of Permitted Management Fees, or (Bz) such Restricted Payment is made the payment by any Subsidiary to the equity holders Borrower of such Restricted Subsidiary on a pro rata basis based upon the percentage of equity in such Restricted Subsidiary held by such Restricted Subsidiary’s equity holders; (iii) the making of other Restricted Payments dividends or distributions in an amount not sufficient to exceed $25,000,000 in any fiscal year; provided, no Event of Default exists or would result from making such Restricted Payment; (iv) the making of other Restricted Payments by any Loan Party or any Restricted Subsidiary in an unlimited basis, so long as (i) no Event of Default exists or would result from making such Restricted Payment, and (ii) after giving Pro Forma Effect to such Restricted Payment and any Indebtedness incurred in connection therewith, the Total Leverage Ratio (as determined by the financial statements delivered to the Administrative Agent pursuant to Section 8.05(a) or (b) hereof immediately prior to such Restricted Payment) is less than 3.75 to 1.00; (v) [reserved]; (vi) enable the Borrower may declare to timely pay when due United States federal, state and directly or indirectly pay cash dividends and distributions to Holdings for redistribution to any direct or indirect parent thereof (x) for customary and reasonable out-of-pocket expenses, legal and accounting fees and expenses and overhead local income tax liabilities in respect of such Person incurred in the ordinary course of business to the extent attributable to the business of income earned by the Borrower and the Restricted Subsidiaries and in the aggregate not to exceed $5,000,000 in any fiscal year and (y) for Public Company Costs; (vii) the Borrower may purchase or transfer funds to Holdings for redistribution to any direct or indirect parent thereof to fund the purchase of (with cash or notes) equity interests in such Person from former directors, officers or employees of such Person or its Subsidiaries (including Holdings, the Borrower or the Restricted Subsidiaries), their estates, beneficiaries under their estates, transferees, spouses or former spouses in connection with such person’s death, disability, retirement, severance or termination of such employee’s employment (or such officer’s office appointment or director’s directorship) and the Borrower may make distributions to Holdings for redistribution to any direct or indirect parent thereof to effect such purchases and/or to make payments on any notes issued in connection with any such repurchase; provided, however, that (i) no the proceeds of such purchase dividends or distribution and no payment on any such note shall be made if an Event of Default shall have occurred and be continuing, (ii) no such note shall require any payment if such payment or a distribution by the Borrower to make such payment is prohibited by the terms hereof and (iii) the aggregate amount of all cash payments under this Section 8.12(vii) (including payments in respect of any such purchase or any such notes or any such distributions to Holdings for such purposes) shall not exceed in any fiscal year the sum (without duplication) of (A) the greater of (x) $37,500,000 and (y) 15% of Adjusted EBITDA for the most recently ended Test Period (with any unused amounts in any such fiscal year being carried over to the next succeeding fiscal year (with any unused amounts so carried over being further carried over to the next succeeding fiscal year if they are not used in such fiscal year)), plus (B) the amount of any cash equity contributions received by the Borrower for the purpose of making such payments and used for such purpose plus (C) key man life insurance proceeds received by the Borrower or any Restricted Subsidiary during such fiscal year; and (viii) the payment of any dividend or other distribution or the consummation of any irrevocable redemption within sixty (60) days after the date of declaration of the dividend or other distribution or giving of the redemption notice, as the case may be, if at the date of declaration or notice, the dividend or other distribution or redemption payment would have complied with the provisions of this Section 8.12; (ix) payments in respect of transfer pricing, cost-sharing arrangements (i.e., “cost-plus” arrangements) and associated “true-up” payments that are in the ordinary course of business and consistent with the historical practices of Holdings, the Borrower and any Restricted Subsidiary; (x) payments pursuant fact used to and in accordance with stock option plans or other benefit plans for the management of employees of Holdings, the Borrower and its Subsidiaries. Without limiting any other provision contained herein and the other Loan Documents (including Section 8.22 hereof), payments made on account of any Indebtedness that can be converted into equity (including payments to redeem pay such Indebtedness prior its maturity date) shall not be deemed a Restricted Payment for purposes of this Section 8.12 until such Indebtedness is converted into equity. Notwithstanding anything to the contrary set forth in this Agreement, the making and payment of any Restricted Payment shall be permitted hereunder if at the time such Restricted Payment was declared, the making and payment thereof complied with the provisions of this Agreement (and so long as during any interim period, any calculation or measurement hereunder is made assuming such amount has been declared and paid)tax liabilities.

Dividends and Certain Other Restricted Payments. The Borrower shall notNo Loan Party shall, nor shall it permit any of its Restricted Subsidiaries to, (a) declare or pay any dividends on or make any other distributions in respect of any class or series of its capital stock or other equity interests (other than dividends or distributions payable solely in its capital stock or other equity interests), or (b) directly or indirectly purchase, redeem, or otherwise acquire or retire any of its capital stock or other equity interests or any warrants, options, or similar instruments to acquire the same, or (c) make any voluntary prepayment on account of any Subordinated Debt or effect any voluntary redemption thereof with cash on hand and/or the proceeds of a Loan hereunder (collectively referred to herein as “Restricted Payments”); provided, however, that the foregoing shall not operate to prevent: (i) the making of dividends or distributions by any Wholly-Owned Subsidiary to the Borrower or any of its Restricted Subsidiaries; (ii) the making of Restricted Payments by any Restricted Subsidiary that is not a Wholly-Owned Subsidiary so long as (A) no Event of Default exists or would result from making such Restricted Payment and (B) such Restricted Payment is made to the equity holders of such Restricted Subsidiary on a pro rata basis based upon the percentage of equity in such Restricted Subsidiary held by such Restricted Subsidiary’s equity holders;; and (iii) the making of other Restricted Payments in an amount not to exceed $25,000,000 in any fiscal year; provided, no Event of Default exists or would result from making such Restricted Payment; (iv) the making of other Restricted Payments by any Loan Party or any Subsidiary to its shareholders or other equity holders (other than Restricted Payments made by a Wholly-Owned Subsidiary in an unlimited basisto a Loan Party), so long as provided (iA) no Event of Default exists or would result from making such Restricted Payment, and (ii) after giving Pro Forma Effect to such Restricted Payment and any Indebtedness incurred in connection therewith, the Total Leverage Ratio (as determined by the financial statements delivered to the Administrative Agent pursuant to Section 8.05(a) or (b) hereof immediately prior to such Restricted Payment) is less than 3.75 to 1.00; (v) [reserved]; (vi) the Borrower may declare and directly or indirectly pay cash dividends and distributions to Holdings for redistribution to any direct or indirect parent thereof (x) for customary and reasonable out-of-pocket expenses, legal and accounting fees and expenses and overhead of such Person incurred in the ordinary course of business to the extent attributable to the business of the Borrower and the Restricted Subsidiaries and in the aggregate not to exceed $5,000,000 in any fiscal year and (y) for Public Company Costs; (vii) the Borrower may purchase or transfer funds to Holdings for redistribution to any direct or indirect parent thereof to fund the purchase of (with cash or notes) equity interests in such Person from former directors, officers or employees of such Person or its Subsidiaries (including Holdings, the Borrower or the Restricted Subsidiaries), their estates, beneficiaries under their estates, transferees, spouses or former spouses in connection with such person’s death, disability, retirement, severance or termination of such employee’s employment (or such officer’s office appointment or director’s directorship) and the Borrower may make distributions to Holdings for redistribution to any direct or indirect parent thereof to effect such purchases and/or to make payments on any notes issued in connection with any such repurchase; provided, however, that (i) no such purchase or distribution and no payment on any such note shall be made if an Event of Default shall have occurred and be continuing, (ii) no such note shall require any payment if such payment or a distribution by the Borrower to make such payment is prohibited by the terms hereof and (iiiB) the aggregate amount of all cash payments under this Section 8.12(vii) (including payments in respect such Restricted Payments during any period of any such purchase or any such notes or any such distributions to Holdings for such purposes) four consecutive fiscal quarters shall not exceed in any fiscal year the sum (without duplication) of (A) the greater of (x) $37,500,000 and (y) 1550% of the amount by which Adjusted EBITDA for the most recently period of four consecutive fiscal quarters ended Test Period (with any unused amounts in any such fiscal year being carried over immediately prior to the next succeeding fiscal year (with any unused amounts so carried over being further carried over to the next succeeding fiscal year if they are not used in such fiscal year)), plus (B) the amount of any cash equity contributions received by the Borrower for the purpose of making such payments and used for such purpose plus (C) key man life insurance proceeds received by the Borrower or any Restricted Subsidiary during such fiscal year; and (viii) the payment of any dividend or other distribution or the consummation of any irrevocable redemption within sixty (60) days after the date of declaration of the dividend or other distribution or giving of the redemption notice, as the case may be, if at the date of declaration or notice, the dividend or other distribution or redemption payment would have complied with the provisions of this Section 8.12; (ix) payments in respect of transfer pricing, cost-sharing arrangements (i.e., “cost-plus” arrangements) determination exceeds $50,000,000. For purposes hereof and associated “true-up” payments that are in the ordinary course of business and consistent with the historical practices of Holdings, the Borrower and any Restricted Subsidiary; (x) payments pursuant to and in accordance with stock option plans or other benefit plans for the management of employees of Holdings, the Borrower and its Subsidiaries. Without without limiting any other provision contained herein and the other Loan Documents (including Section 8.22 hereof), payments made on account of any Indebtedness that can be converted into equity (including payments to redeem such Indebtedness prior its maturity date) shall not be deemed a Restricted Payment for purposes of this Section 8.12 until such Indebtedness is converted into equity. Notwithstanding anything to the contrary set forth in this Agreement, the making and payment of any Restricted Payment shall be permitted hereunder if at the time such Restricted Payment was declared, the making and payment thereof complied with the provisions of this Agreement (and so long as during any interim period, any calculation or measurement hereunder is made assuming such amount has been declared and paid).

Dividends and Certain Other Restricted Payments. The Borrower shall not, nor shall it permit any of its Restricted Subsidiaries Subsidiary to, (a) declare or make, or agree to pay any dividends on or make any other distributions in respect of any class or series of its capital stock or other equity interests (other than dividends or distributions payable solely in its capital stock or other equity interests)make, (b) directly or indirectly purchaseindirectly, redeem, or otherwise acquire or retire any of its capital stock or other equity interests or any warrants, options, or similar instruments to acquire the same, or (c) make any voluntary prepayment on account of any Subordinated Debt or effect any voluntary redemption thereof with cash on hand and/or the proceeds of a Loan hereunder (collectively referred to herein as “Restricted Payments”)Payment; provided, however, that the foregoing shall not operate to prevent: (a) dividends with respect to the capital stock of the Borrower payable solely in additional shares of the Borrower's common stock; (b) dividends and distributions in either case in cash or other property (excluding for this purpose the Borrower's common stock) in any taxable year of the Borrower in amounts not to exceed the amount that is estimated in good faith by the Borrower to be required to (i) reduce to zero for such taxable year or for the making previous taxable year, its investment company taxable income (within the meaning of Section 852(b)(2) of the Code) and reduce to zero the tax imposed by Section 852(b)(3) of the Code, and (ii) avoid federal excise taxes for such taxable year imposed by Section 4982 of the Code; (c) dividends and distributions in each case in cash or distributions by any Wholly-Owned Subsidiary other property (excluding for this purpose the Borrower's common stock) in addition to the Borrower dividends and distributions permitted under the foregoing subsections (a) and (b), so long as on the date of such Restricted Payment and after giving effect thereto: (i) no Default or any E vent of its Restricted Subsidiaries; Default exists or shall arise after giving effect to such payment; and (ii) the making aggregate amount of Restricted Payments by made during any Restricted Subsidiary that is taxable year of the Borrower after the date hereof under this subsection (c) shall not a Wholly-Owned Subsidiary so long as exceed the sum of (x) an amount equal to 10% of the taxable income of the Borrower for such taxable year determined under Section 852(b)(2) of the Code, but without regard to subparagraphs (A) no Event of Default exists or would result from making such Restricted Payment and ), (B) or (D) thereof, minus (y) the amount, if any, by which dividends and distributions made during such Restricted Payment is made taxable year pursuant to the equity holders foregoing subsection (b) (whether in respect of such Restricted Subsidiary on a pro rata basis taxable year or the previous taxable year) based upon the percentage Borrower's estimate of equity taxable income exceeded the actual amounts specified in subclauses (i) and (ii) of such Restricted Subsidiary held by foregoing subsection (b) for such Restricted Subsidiary’s equity holderstaxable year; (iiid) the making of other Restricted Payments in an amount not to exceed $25,000,000 in any fiscal year; provided, paid no Event of Default exists or would result from making such Restricted Payment; (iv) the making of other Restricted Payments by any Loan Party or any Restricted Subsidiary in an unlimited basis, more frequently than quarter-annually so long as (i) on the date of such other Restricted Payment and after giving effect thereto (x) the Covered Debt Amount does not exceed 90% of the Borrowing Base and (y) no Default or Event of Default exists or would result from making shall arise after giving effect to such Restricted Payment, payment and (ii) after giving Pro Forma Effect to on the date of such other Restricted Payment and any Indebtedness incurred in connection therewith, the Total Leverage Ratio (as determined by the financial statements delivered Borrower delivers to the Administrative Agent pursuant to Section 8.05(aand each Lender a Borrowing Base Certificate as at such date demonstrating compliance with clause (x) or (b) hereof immediately prior above after giving effect to such Restricted Payment) is less than 3.75 to 1.00; . For purposes of preparing such Borrowing Base Certificate, (v) [reserved]; (viA) the Borrower may declare fair market value of Portfolio Investments for which market quotations are readily available shall be the most recent quotation available for such Portfolio Investment and directly or indirectly pay cash dividends and distributions to Holdings (B) the fair market value of Portfolio Investments for redistribution to any direct or indirect parent thereof (x) for customary and reasonable out-of-pocket expenses, legal and accounting fees and expenses and overhead of such Person incurred which market quotations are not readily available shall be the Value set forth in the ordinary course of business to the extent attributable to the business of the Borrower and the Restricted Subsidiaries and in the aggregate not to exceed $5,000,000 in any fiscal year and (y) for Public Company Costs; (vii) the Borrower may purchase or transfer funds to Holdings for redistribution to any direct or indirect parent thereof to fund the purchase of (with cash or notes) equity interests in such Person from former directors, officers or employees of such Person or its Subsidiaries (including Holdings, the Borrower or the Restricted Subsidiaries), their estates, beneficiaries under their estates, transferees, spouses or former spouses in connection with such person’s death, disability, retirement, severance or termination of such employee’s employment (or such officer’s office appointment or director’s directorship) and the Borrower may make distributions to Holdings for redistribution to any direct or indirect parent thereof to effect such purchases and/or to make payments on any notes issued in connection with any such repurchase; provided, however, that (i) no such purchase or distribution and no payment on any such note shall be made if an Event of Default shall have occurred and be continuing, (ii) no such note shall require any payment if such payment or a distribution Borrowing Base Certificate most recently delivered by the Borrower to make such payment is prohibited by the terms hereof Administrative Agent and (iii) the aggregate amount of all cash payments under this Lenders pursuant to Section 8.12(vii) (including payments in respect 8.5(a); provided that the Borrower shall reduce the Value of any such purchase or any such notes or any such distributions Portfolio Investment referred to Holdings for such purposes) shall not exceed in any fiscal year the sum (without duplication) of (A) the greater of (x) $37,500,000 and (y) 15% of Adjusted EBITDA for the most recently ended Test Period (with any unused amounts in any such fiscal year being carried over to the next succeeding fiscal year (with any unused amounts so carried over being further carried over to the next succeeding fiscal year if they are not used in such fiscal year)), plus this subclause (B) to the amount extent necessary to take into account any events of any cash equity contributions received by which the Borrower for has knowledge that adversely affect the purpose value of making such payments and used for such purpose plus (C) key man life insurance proceeds received by the Borrower or any Restricted Subsidiary during such fiscal yearPortfolio Investment; and (viiie) the payment of Restricted Payments by any dividend or other distribution or the consummation of any irrevocable redemption within sixty (60) days after the date of declaration Subsidiary of the dividend or other distribution or giving of the redemption notice, as the case may be, if at the date of declaration or notice, the dividend or other distribution or redemption payment would have complied with the provisions of this Section 8.12; (ix) payments in respect of transfer pricing, cost-sharing arrangements (i.e., “cost-plus” arrangements) and associated “true-up” payments that are in the ordinary course of business and consistent with the historical practices of Holdings, Borrower to the Borrower and any Restricted Subsidiary; (x) payments pursuant or to and in accordance with stock option plans or other benefit plans for the management of employees of Holdings, the Borrower and its Subsidiaries. Without limiting any other provision contained herein and the other Loan Documents (including Section 8.22 hereof), payments made on account of any Indebtedness that can be converted into equity (including payments to redeem such Indebtedness prior its maturity date) shall not be deemed a Restricted Payment for purposes of this Section 8.12 until such Indebtedness is converted into equity. Notwithstanding anything to the contrary set forth in this Agreement, the making and payment of any Restricted Payment shall be permitted hereunder if at the time such Restricted Payment was declared, the making and payment thereof complied with the provisions of this Agreement (and so long as during any interim period, any calculation or measurement hereunder is made assuming such amount has been declared and paid)Credit Party.

Dividends and Certain Other Restricted Payments. The Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to, (a) declare or pay any dividends on or make any other distributions in respect of any class or series of its capital stock stock, or other equity interests (other than dividends or distributions payable solely in its capital stock or other equity interests), (b) directly or indirectly purchase, redeem, redeem or otherwise acquire or retire any of its capital stock or other equity interests or any warrants(collectively, options, or similar instruments to acquire the same, or (c) make any voluntary prepayment on account of any Subordinated Debt or effect any voluntary redemption thereof with cash on hand and/or the proceeds of a Loan hereunder (collectively referred to herein as “Restricted Payments”); provided, however, that the foregoing shall not operate to prevent: : (ia) the making of dividends or distributions by any Wholly-Owned Subsidiary to the Borrower or by any of its Subsidiaries, (b) Restricted Subsidiaries; Payments consisting of the purchase by the Borrower of shares of its common stock for the sole purpose of the funding of the Borrower’s deferred compensation plan in accordance with its terms in a maximum amount of $500,000 per fiscal year, (c) Restricted Payments consisting of the repurchase by the Borrower of shares of its common stock not otherwise permitted by this Section; provided that (i) no Default or Event of Default shall exist or shall result from the share repurchase, (ii) the making of Restricted Payments by any Restricted Subsidiary that is not a Wholly-Owned Subsidiary so long as (A) no Event of Default exists or would result from making such Restricted Payment and (B) such Restricted Payment is made Borrower shall have demonstrated to the equity holders satisfaction of the Administrative Agent that it is in pro forma compliance with Section 8.21 of this Agreement after giving effect to such Restricted Subsidiary on a share repurchase, provided, further, that the Borrower’s pro rata basis based upon forma Total Funded Debt/Adjusted EBITDA Ratio shall not exceed 2.75 to 1.0 for the percentage of equity in such Restricted Subsidiary held by such Restricted Subsidiary’s equity holders; four most recently completed fiscal quarters, and (iii) immediately after giving effect to any such repurchases, the making of other Restricted Payments Revolving Credit Commitments then in an amount not to effect shall exceed by at least $25,000,000 in any fiscal year; providedthe aggregate principal amount of Revolving Loans, no Event of Default exists or would result from making such Restricted Payment; Swing Loans, and L/C Obligations, and (iv) the making aggregate value of other shares repurchased during the term of this Agreement shall not exceed $50,000,000, and (d) Restricted Payments consisting of cash dividends paid by the Borrower during any Loan Party or any Restricted Subsidiary in an unlimited basisfiscal year, so long as provided that (i) no Default or Event of Default exists shall exist or would shall result from making the payment of any such Restricted Paymentdividend, and (ii) after giving Pro Forma Effect to such Restricted Payment and any Indebtedness incurred in connection therewith, the Total Leverage Ratio (as determined by the financial statements delivered to the Administrative Agent pursuant to Section 8.05(a) or (b) hereof immediately prior to such Restricted Payment) is less than 3.75 to 1.00; (v) [reserved]; (vi) the Borrower may declare and directly or indirectly pay cash dividends and distributions to Holdings for redistribution to any direct or indirect parent thereof (x) for customary and reasonable out-of-pocket expenses, legal and accounting fees and expenses and overhead aggregate amount of such Person incurred in the ordinary course of business to the extent attributable to the business of the Borrower and the Restricted Subsidiaries and in the aggregate not to exceed $5,000,000 dividends made in any fiscal year and (y) for Public Company Costs; (vii) the Borrower may purchase or transfer funds to Holdings for redistribution to any direct or indirect parent thereof to fund the purchase of (with cash or notes) equity interests in such Person from former directors, officers or employees of such Person or its Subsidiaries (including Holdings, the Borrower or the Restricted Subsidiaries), their estates, beneficiaries under their estates, transferees, spouses or former spouses in connection with such person’s death, disability, retirement, severance or termination of such employee’s employment (or such officer’s office appointment or director’s directorship) and the Borrower may make distributions to Holdings for redistribution to any direct or indirect parent thereof to effect such purchases and/or to make payments on any notes issued in connection with any such repurchase; provided, however, that (i) no such purchase or distribution and no payment on any such note shall be made if an Event of Default shall have occurred and be continuing, (ii) no such note shall require any payment if such payment or a distribution by the Borrower to make such payment is prohibited by the terms hereof and (iii) the aggregate amount of all cash payments under this Section 8.12(vii) (including payments in respect of any such purchase or any such notes or any such distributions to Holdings for such purposes) shall not exceed in any fiscal year the sum (without duplication) of (A) the greater of (x) $37,500,000 and (y) 1550% of Adjusted EBITDA for Net Income from the most recently ended Test Period (with any unused amounts in any such fiscal year being carried over to the next succeeding fiscal year (with any unused amounts so carried over being further carried over to the next succeeding fiscal year if they are not used in such prior fiscal year)), plus (B) the amount of any cash equity contributions received by the Borrower for the purpose of making such payments and used for such purpose plus (C) key man life insurance proceeds received by the Borrower or any Restricted Subsidiary during such fiscal year; and (viii) the payment of any dividend or other distribution or the consummation of any irrevocable redemption within sixty (60) days after the date of declaration of the dividend or other distribution or giving of the redemption notice, as the case may be, if at the date of declaration or notice, the dividend or other distribution or redemption payment would have complied with the provisions of this Section 8.12; (ix) payments in respect of transfer pricing, cost-sharing arrangements (i.e., “cost-plus” arrangements) and associated “true-up” payments that are in the ordinary course of business and consistent with the historical practices of Holdings, the Borrower and any Restricted Subsidiary; (x) payments pursuant to and in accordance with stock option plans or other benefit plans for the management of employees of Holdings, the Borrower and its Subsidiaries. Without limiting any other provision contained herein and the other Loan Documents (including Section 8.22 hereof), payments made on account of any Indebtedness that can be converted into equity (including payments to redeem such Indebtedness prior its maturity date) shall not be deemed a Restricted Payment for purposes of this Section 8.12 until such Indebtedness is converted into equity. Notwithstanding anything to the contrary set forth in this Agreement, the making and payment of any Restricted Payment shall be permitted hereunder if at the time such Restricted Payment was declared, the making and payment thereof complied with the provisions of this Agreement (and so long as during any interim period, any calculation or measurement hereunder is made assuming such amount has been declared and paid).