Common use of Equity Issuances Clause in Contracts

Equity Issuances. No later than five (5) Business Days following the date of receipt by the Borrower of any Net Equity Proceeds, the Borrower shall prepay the Obligations in an aggregate amount equal to 75% (the “Equity Percentage”) of such Net Equity Proceeds; provided, however, that so long as no Default or Event of Default shall have occurred and be continuing, the Borrower shall have the option upon written notice stating its intention to the Administrative Agent and each Lender (or by filing materials with the SEC stating Borrower’s intention and contemporaneously delivering such materials to the Administrative Agent and each Lender) within ten (10) Business Days of receipt of such Net Equity Proceeds, directly or through one or more Credit Party, to (A) invest or commit to invest such Net Equity Proceeds (x) in investments permitted pursuant to Section 6.7(g) or (k) within six (6) months from the date of receipt of such Net Equity Proceeds; or (y) in long term productive assets of the general type used in the business of the Credit Parties, including through Acquisitions permitted hereunder, in each case, within one (1) year of receipt of such Net Equity Proceeds or (B) to fund the Target’s activities within six (6) months from the date of receipt of such Net Equity Proceeds, provided that, in the case of investments described in clause (A)(x) above, if any amount is so committed to be reinvested but is not so reinvested within six (6) months from the date of receipt of such Net Equity Proceeds, or in the case of investments described in clause (A)(y) above, if any amount is so committed to be reinvested within such one-year period, but is not reinvested within such one-year period after the receipt of such Net Equity Proceeds or as described in clause (B), within six (6) months from the date of receipt of such Net Equity Proceeds, then, in each case, the Borrower shall use 75% of the unused portion of such Net Equity Proceeds to repay the Obligations in accordance with this Section 2.8(g) without giving further effect to such reinvestment right.

Equity Issuances. No later than five One hundred percent (5100%) Business Days following of the date of receipt Net Cash Proceeds received by the Principal Borrower of any Net Equity Proceeds, from a Public Offering meeting the Borrower conditions in Section 2.16 shall prepay the Obligations in an aggregate amount equal to 75% be applied promptly upon (the “Equity Percentage”) of such Net Equity Proceeds; provided, however, that so long as no Default or Event of Default shall have occurred and be continuing, the Borrower shall have the option upon written notice stating its intention to the Administrative Agent and each Lender (or by filing materials with the SEC stating Borrower’s intention and contemporaneously delivering such materials to the Administrative Agent and each Lender) within ten (10) Business Days of receipt of such Net Equity Proceeds, directly or through one or more Credit Party, to (A) invest or commit to invest such Net Equity Proceeds (x) in investments permitted pursuant to Section 6.7(g) or (k) within six (6) months from the date of receipt of such Net Equity Proceeds; or (y) in long term productive assets of the general type used in the business of the Credit Parties, including through Acquisitions permitted hereunderand, in each any case, within one (1) year Business Day following) receipt thereof, to the prepayment of receipt the Outstanding Amount of the Loans and any L/C Borrowings. Prepayments made pursuant to this clause (b)(i) shall be applied first to the Outstanding Amount under the Term A Facility and then to the Revolving Credit Facility on a pro rata basis based on the Outstanding Amount with respect each such Net Equity Proceeds or (B) to fund the Target’s activities within six (6) months from Facility as of the date of receipt such prepayment; provided, however, that the Borrowers shall not be required to reduce the Outstanding Amount to an amount less than the NY Maximum Principal Amount as a result of such prepayment (provided, further, that any excess Net Equity Proceeds, provided that, in the case of investments described in clause (A)(x) above, if any amount is so committed to be reinvested but is not so reinvested within six (6) months Cash Proceeds resulting from the date application of receipt of such Net Equity Proceedsthis proviso shall, or in the case of investments described in clause (A)(y) abovefirst, if be used to Cash Collateralize any amount is so committed to be reinvested within such onethen-year period, but is not reinvested within such one-year period after the receipt of such Net Equity Proceeds or as described in clause (B), within six (6) months from the date of receipt of such Net Equity Proceeds, then, in each case, the Borrower shall use 75% of the unused portion of such Net Equity Proceeds to repay the Obligations existing L/C Borrowings in accordance with the provisions of this clause (b)(i) and second, be retained by the Borrowers as working capital. Prepayments of the Term A Facility made pursuant to this Section 2.8(g2.05(b)(i) without giving further effect shall permanently reduce availability under the Term A Facility (subject to subsequent increases in such reinvestment rightFacility pursuant to the terms of Section 2.15 hereof); provided, that any portion of the Term A Facility which is prepaid as a result of the application of this Section 2.05(b)(i) (the “Convertible Term A Prepaid Principal”) shall be converted to Revolving Credit Commitments pursuant to and in accordance with the provisions of Section 2.16. Prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b)(i), first, shall be applied ratably to the outstanding L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; provided, however, that the Borrowers shall not be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.05(b)(i) unless after the prepayment in full of the outstanding Revolving Credit Loans and Swing Line Loans the L/C Obligations exceed the Letter of Credit Sublimit and then, only such excess.

Equity Issuances. No later Upon the sale or issuance by the Borrower or any of its Subsidiaries of any of its Equity Interests (other than and any sales or issuances of Equity Interests to another Loan Party), the Borrower shall prepay an aggregate principal amount of the Loans equal to 50% of all Net Cash Proceeds received therefrom immediately upon receipt thereof by the Borrower or such Subsidiary (such prepayments to be applied as set forth in clause (vii) below); provided that, with respect to any Net Cash Proceeds realized from an issuance of Equity Interests as described in this Section 2.05(b)(iv), at the election of the Borrower, the Borrower may prepay Indebtedness outstanding under the Subordinated Notes so long as (A) the Borrower shall have notified the Administrative Agent on or prior to the date of such issuance of its intent to prepay such Indebtedness, (B) the Borrower is in compliance (calculated on a pro forma basis after giving effect to such prepayment) with the financial covenants set forth in Section 7.11 (as certified by the Borrower in writing to the Administrative Agent), (C) within five (5) Business Days following after the receipt of such Net Cash Proceeds, such prepayment shall have been made to the Subordinated Noteholders (as certified by the Borrower in writing to the Administrative Agent) and (D) no Default shall have occurred and be continuing as of the date of receipt by the Borrower of any Net Equity Proceeds, the Borrower shall prepay the Obligations in an aggregate amount equal to 75% (the “Equity Percentage”) of such Net Equity Proceeds; provided, however, prepayment or would result therefrom and provided further that so long as no Default or Event of Default shall have has occurred and be is continuing, the Borrower no prepayment shall have the option upon written notice stating its intention to the Administrative Agent and each Lender (or by filing materials with the SEC stating Borrower’s intention and contemporaneously delivering such materials to the Administrative Agent and each Lender) within ten (10) Business Days of receipt of such Net Equity Proceeds, directly or through one or more Credit Party, to (A) invest or commit to invest such Net Equity Proceeds (x) in investments permitted pursuant to Section 6.7(g) or (k) within six (6) months be required from the date Net Cash Proceeds of receipt any sale or issuance of such Net Equity Proceeds; or (y) in long term productive assets Interests the proceeds of the general type which are used in the business of the Credit Parties, including through Acquisitions permitted hereunder, in each case, within one (1) year of receipt of such Net Equity Proceeds or (B) to fund the Target’s activities within six (6) months from the date of receipt of such Net Equity Proceeds, provided that, in the case of investments described in clause (A)(x) above, if any amount is so committed to be reinvested but is not so reinvested within six (6) months from the date of receipt of such Net Equity Proceeds, or in the case of investments described in clause (A)(y) above, if any amount is so committed to be reinvested within such one-year period, but is not reinvested within such one-year period after the receipt of such Net Equity Proceeds or as described in clause (B), within six (6) months from the date of receipt of such Net Equity Proceeds, then, in each case, the Borrower shall use 75% of the unused portion of such Net Equity Proceeds to repay the Obligations in accordance with this Section 2.8(g) without giving further effect to such reinvestment right.finance a Permitted Acquisition. CHL:45705.8 40

Equity Issuances. No later than five (5) Business Days following the date of receipt by the Borrower of any Net Equity Proceeds, the Borrower shall prepay the Obligations in an aggregate amount equal to 7550% (the “Equity Percentage”) of such Net Equity Proceeds; provided, however, that so long as no Default or Event of Default shall have occurred and be continuing, the Borrower shall have the option upon written notice stating its intention to the Administrative Agent and each Lender (or by filing materials with the SEC stating Borrower’s intention and contemporaneously delivering such materials to the Administrative Agent and each Lender) within ten (10) Business Days of receipt of such Net Equity Proceeds, directly or through one or more Credit Party, to (A) invest or commit to invest such Net Equity Proceeds (x) in investments permitted pursuant to Section 6.7(g) or (k) within six (6) months from the date of receipt of such Net Equity Proceeds; or (y) in long term productive assets of the general type used in the business of the Credit Parties, including through Acquisitions permitted hereunder, in each case, within one (1) year of receipt of such Net Equity Proceeds or (B) to fund the Target’s activities within six (6) months from the date of receipt of such Net Equity Proceeds, provided that, in the case of investments described in clause (A)(xx) above, if any amount is so committed to be reinvested but is not so reinvested within six (6) months from the date of receipt of such Net Equity Proceeds, or in the case of investments described in clause (A)(yy) above, if any amount is so committed to be reinvested within such one-year period, but is not reinvested within such one-year period after the receipt of such Net Equity Proceeds or as described in clause (B), within six (6) months from the date of receipt of such Net Equity Proceeds, then, in each case, the Borrower shall use 7550% of the unused portion of such Net Equity Proceeds to repay the Obligations in accordance with this Section 2.8(g) without giving further effect to such reinvestment right.

Equity Issuances. No later than five (5) Business Days following Immediately upon the date of receipt by any Loan Party or Subsidiary of the Borrower Net Proceeds of any Net issuance of Equity ProceedsInterests, the Borrower shall prepay the Loans and/or Cash Collateralize the L/C Obligations as hereafter provided in an aggregate amount equal to 75% (one hundred percent of the “Net Proceeds of any issuance of Equity Percentage”) of such Net Equity ProceedsInterests by any Loan Party; providedprovided that, however, that so long as no Default exists, no such reduction or Event of Default prepayment shall have occurred and be continuing, the Borrower shall have the option upon written notice stating its intention required: (1) to the Administrative Agent and each Lender (or by filing materials with the SEC stating Borrower’s intention and contemporaneously delivering such materials to the Administrative Agent and each Lender) within ten (10) Business Days of receipt of such Net Equity Proceeds, directly or through one or more Credit Party, to extent that (A) invest or commit to invest such Net Equity Proceeds (x) in investments permitted pursuant to Section 6.7(g) or (k) within six (6) months from on the date of receipt of such Net Equity Proceeds; or (y) in long term productive assets of the general type used in the business of the Credit Parties, including through Acquisitions permitted hereunder, in each case, within one (1) year of receipt of such Net Equity Proceeds or (B) to fund the Target’s activities within six (6) months from the date of receipt of such Net Equity Proceeds, provided that, in the case of investments described in clause (A)(x) above, if any amount is so committed to be reinvested but is not so reinvested within six (6) months from the date of receipt of such Net Equity Proceeds, or in the case of investments described in clause (A)(y) above, if any amount is so committed to be reinvested within such one-year period, but is not reinvested within such one-year period after the receipt of such Net Proceeds Borrower notifies Administrative Agent in writing of its or any Loan Party’s intent to apply such Net Proceeds to all or a portion of the purchase price of a Permitted Acquisition, and (B) within ninety (90) days of receipt thereof such Net Proceeds are so applied for such purpose; or (2) with respect to any Equity Proceeds Interests issued by: (A) any Subsidiary to Borrower or to another Subsidiary Guarantor; or (B) Borrower to purchase, redeem or otherwise acquire shares of its or its Subsidiaries’ common stock in a transaction permitted by Section 7.06(c), or (C) Borrower to directors, officers or employees of Borrower or any other Subsidiary of Equity Interests in the form of warrants, options or similar rights to acquire any other Equity Interests of Borrower, or any sale or issuance of Equity Interests upon the exercise of any such warrants, options or similar rights. Any prepayment pursuant to this clause (vii) shall be applied as described set forth in clause (B), within six (6ix) months from below. For the date avoidance of receipt of such Net Equity Proceeds, then, in each casedoubt, the parties hereto agree that Equity Interests issued directly by Borrower shall use 75% to a seller in connection with a Permitted Acquisition are permitted and are excluded from any prepayment requirement of the unused portion of such Net Equity Proceeds to repay the Obligations in accordance with this Section 2.8(g) without giving further effect to such reinvestment right2.05(b)(vii).

Equity Issuances. No later than five Prior to the Forbearance Period Termination Date, Borrower shall have successfully completed one or more issuances of common and/or preferred stock or rights to purchase common and/or preferred stock on terms and conditions satisfactory to the Administrative Agent (5) Business Days following together with the date of receipt by the Borrower of any Net Equity ProceedsInterim Issuance, the “Equity Issuances”) pursuant to which Borrower shall prepay the Obligations have received total gross proceeds of at least $150,000,000, which result in an aggregate amount equal to 75% Borrower’s receipt of Net Proceeds of at least $140,000,000 (the “Equity PercentageIssuance Net Proceeds”), in consideration of such issuances, and such Equity Issuance Net Proceeds shall have been applied as follows: (a) if the Forbearance Period Termination Date has not been automatically extended or has been automatically extended to April 30, 2009 pursuant to clause (b)(i) of such the definition of “Forbearance Period Termination Date”, then (i) the first $100,000,000 of Equity Issuance Net Proceeds to payment of the Obligations, (ii) the next $40,000,000 of Equity Proceeds; provided, however, that so long as no Default or Event of Default shall have occurred and Issuance Net Proceeds to be continuing, retained by the Borrower shall have as working capital, and (iii) all remaining Equity Issuance Net Proceeds to payment of the option upon written notice stating its intention Obligations then outstanding, (b) if the Forbearance Period Termination Date has been extended to May 15, 2009 pursuant to clause (b)(ii) of the Administrative Agent and each Lender definition of “Forbearance Period Termination Date”, then (or by filing materials i) fifty (50%) percent of the Equity Issuance Net Proceeds of the Interim Issuance to payment of the Obligations with a corresponding automatic reduction in the SEC stating Borrower’s intention and contemporaneously delivering such materials to Borrowing Base (but not below the Administrative Agent and each Lender) within ten (10) Business Days of receipt of such Net Equity Proceeds, directly or through one or more Credit Party, to (A) invest or commit to invest such Net Equity Proceeds (xthen existing Conforming Borrowing Base) in investments permitted pursuant to accordance with Section 6.7(g2.6(c) or (k) within six (6) months from the date of receipt of such Net Equity Proceeds; or (y) in long term productive assets of the general type used in the business of the Credit PartiesAgreement, including through Acquisitions permitted hereunder(ii) fifty (50%) percent of the Equity Issuance Net Proceeds of the Interim Issuance to the Borrower to be retained as working capital up to a maximum of $40,000,000 of the Equity Issuance Net Proceeds, and (iii) all remaining Equity Issuance Net Proceeds to payment of the Obligations then outstanding, and (c) if the Forbearance Period Termination Date has been extended to June 15, 2009 pursuant to the last sentence in each casethe definition of “Forbearance Period Termination Date”, within one then all Equity Issuance Net Proceeds received after the Signing Date with respect to Equity Issuances other than the Interim Issuance shall be applied (1i) year first to the payment of receipt of the Obligations until such Equity Issuance Net Proceeds together with the Equity Issuance Net Proceeds or (B) to fund the Target’s activities within six (6) months received by Borrower from the date of receipt of such Net Equity ProceedsInterim Issuance and applied to reduce the Obligations total $100,000,000, provided that(ii) second, in the case of investments described in clause (A)(x) above, if any amount is so committed to be reinvested but is not so reinvested within six (6) months retained by the Borrower as working capital, until such Equity Issuance Net Proceeds together with the Equity Issuance Net Proceeds received by Borrower from the date of receipt of such Interim Issuance and not applied to reduce the Obligations total $40,000,000, and (iii) all remaining Equity Issuance Net Equity Proceeds, or in the case of investments described in clause (A)(y) above, if any amount is so committed Proceeds to be reinvested within such one-year period, but is not reinvested within such one-year period after the receipt of such Net Equity Proceeds or as described in clause (B), within six (6) months from the date of receipt of such Net Equity Proceeds, then, in each case, the Borrower shall use 75% payment of the unused portion of such Net Equity Proceeds to repay the Obligations in accordance with this Section 2.8(g) without giving further effect to such reinvestment rightthen outstanding.

Equity Issuances. No later than five (5) Business Days following If, at any time, on and after the date First Amendment Date and prior to the last day of receipt by the Borrower of any Net Equity ProceedsRestriction Period, the Parent, the Borrower shall or any Subsidiary thereof receives cash proceeds from any Equity Issuances (other than, with respect to Equity Issuances, as provided in the final sentence of this clause (b)(iiiiv)), the Borrower shall, in accordance with clause (ivv) below, prepay the Obligations Term Loans, prepay the Revolving Loans and Swingline Loans and Cash Collateralize the Letter of Credit Liabilities (without a permanent reduction in the Revolving Commitments) and prepay the Existing Term Loan (to an amount not less than the Existing Term Loan Floor) in an aggregate amount equal to 75% (the “Equity Percentage”) amount of such Net Equity Proceeds; providedcash proceeds, however, that so long as no Default or Event net of Default shall have occurred underwriting discounts and be continuingcommissions and other reasonable costs and expenses associated therewith (to the extent not paid to an Affiliate of the Parent, the Borrower shall have the option upon written notice stating or its intention to the Administrative Agent Subsidiaries), including reasonable legal fees and each Lender expenses, within three (or by filing materials with the SEC stating Borrower’s intention and contemporaneously delivering such materials to the Administrative Agent and each Lender) within ten (103) Business Days of the Parent’s, the Borrower’s or such Subsidiary’s receipt of such Net cash proceeds. Notwithstanding the foregoing, (A)(I) if the net proceeds of Equity Proceeds, directly or through one or more Credit Party, Issuances shall not be required to be used to prepay such amounts if (A) invest or commit subject to invest such Net the immediately following sentence, both at the time of any Equity Proceeds (x) in investments permitted pursuant Issuance and after giving effect to Section 6.7(g) or (k) within six (6) months from the date theany purchase of receipt of such Net Equity Proceeds; or (y) in long term productive assets of the general type used in the business of the Credit Parties, including through Acquisitions permitted hereunder, in each case, within one (1) year of receipt of such Net Equity Proceeds or (B) to fund the Target’s activities within six (6) months from the date of receipt of such Net Equity Proceeds, provided that, in the case of investments Unencumbered Properties as described in clause (A)(xIIB) below, Availability is equal to or greater than $300,000,000225,000,000 and (IIB) the proceeds of Equity Issuances are either (1) retained as unrestricted cash on the balance sheet of the Borrower or, (2) applied within 30 days (or such longer period as agreed to by the Administrative Agent) of the receipt thereof to the purchase of one or more Unencumbered Properties or (B)(I) if both3) applied to the purchase of one or more other Properties; provided that, with respect to this clause (3), (x) any debt incurred or assumed in connection with the purchase of such Properties is Nonrecourse Indebtedness and (y) the aggregate amount of net proceeds from all Equity Issuances applied in accordance with this clause (3) shall not exceed $100,000,000 (subject to compliance with Section 10.15(e)(iv)) (clauses (1) – (3) are collectively referred to as the “Equity Payment Exclusions”). Notwithstanding clause (A) above, if Availability at the time of any amount is so committed Equity Issuance andis less than $225,000,000 or would be less than $225,000,000 after giving effect to be reinvested but is not so reinvested within six (6) months from the date theany purchase of receipt of such Net Equity Proceeds, or in the case of investments Properties as described in clause (A)(yII) below, Availability equals $400,000,000, (II) the proceeds of Equity Issuances are applied within 30 days (or such longer period as agreed to by the Administrative Agent) of the receipt thereof to the purchase of one or more Properties and (III) the aggregate amount of net proceeds from an Equity Issuance applied in accordance with clause (B)(II) do not exceed an amount equal to $300,000,000 minus the principal amount of Permitted Assumed Debt, the net proceeds of such Equity Issuances so applied in accordance with clause (A) and (B) above shall not be required to be used to prepay Indebtedness as otherwise required by this clause (b)(iii).B) above, if any amount is so committed to be reinvested within such one-year period, but is not reinvested within such one-year period after the receipt Borrower repays Revolving Loans and/or Swingline Loans with the proceeds of such Net Equity Proceeds or Issuance and, so long as after giving effect to any such repayment and any purchase of Properties as described in clause (B)) above Availability is equal to or greater than $225,000,000, within six (6) months from the date of receipt any remaining proceeds of such Net Equity Proceeds, then, in each case, the Borrower shall use 75% of the unused portion of such Net Equity Proceeds to repay the Obligations Issuance may be applied in accordance with this Section 2.8(g) without giving further effect to such reinvestment rightthe Equity Payment Exclusions.