Common use of Restricted Payments and Investments Clause in Contracts

Restricted Payments and Investments. (a) The Credit Parties will not, directly or indirectly, make any Restricted Payment, except: (i) the declaration and payment of dividends and distributions by a Wholly-owned Subsidiary of any Credit Party on its Capital Stock to such Credit Party (other than the Parent); (ii) Restricted Payments made on or about the Closing Date pursuant to the Transaction Documents; (iii) the Issuer may distribute the Development Assets to the Parent on the Closing Date; (iv) Issuer may pay cash dividends to the Parent, so long as (x) there shall exist no Default or Event of Default (both before and immediately after giving effect to the payment thereof), (y) the proceeds thereof are promptly used by Parent to pay operating expenses and other similar corporate overhead costs and expenses (but excluding in any event any costs, expenses, or losses relating to Development Assets) and (z) the aggregate amount of dividends paid by the Issuer in any fiscal year of Parent pursuant to this clause (iv) does not exceed $100,000; (v) the Issuer may pay cash dividends to the Parent in the amounts and at the times of any payment by the Parent in respect of taxes, provided that (x) the amount of cash dividends paid pursuant to this clause (v) to enable the Parent to pay federal income taxes at any time shall not exceed the lesser of (1) the amount of such federal income taxes owing by the Parent at such time for the respective period and (2) the amount of such federal income taxes owing by the Issuer and its Subsidiaries on a consolidated basis for such period if determined without regard to the Parent's ownership of the Issuer and (y) any refunds shall promptly be returned by the Parent to the Issuer; (vi) the Parent may pay regularly accruing dividends with respect to Seller Preferred Stock through the issuance of additional shares of Seller Preferred Stock (but not in cash) in accordance with the terms of the documentation governing the same; (vii) the Parent may pay regularly accruing dividends with respect to the Series A Preferred Stock through an increase in the aggregate liquidation preference of the outstanding Series A Preferred Stock by the amount of the accumulated dividends thereunder (but not in cash) in accordance with the terms of the Series A Preferred Stock Documents; and (viii) any Subsidiary of the Issuer that is not a Wholly-owned Subsidiary may pay cash dividends to its shareholders or partners generally, so long as the Issuer or its respective Subsidiary which owns the equity interest or interests in the Subsidiary paying such dividends receives at least its proportionate share thereof (based upon its relative holdings of equity interests in the Subsidiary paying such dividends and taking into account the relative preferences, if any, of the various classes of equity interests in such Subsidiary or the terms of any agreements applicable thereto). (b) The Credit Parties will not make or maintain any Investments, except that (i) the Credit Parties may make Permitted Investments; (ii) the Issuer and its Subsidiaries may acquire and hold receivables owing to any of them, if created or acquired in the ordinary course of business and payable or dischargeable in accordance with customary terms; (iii) the Issuer may enter into Interest Rate Protection or Other Hedging Agreements to the extent such is entered into to satisfy the requirements of Section 7.11 of the Senior Loan Agreement (as in effect on the date hereof); (iv) the Stock Purchases shall be permitted, so long as same are consummated in accordance with the relevant requirements of Section 5.10; (v) the Issuer and its Subsidiaries may endorse negotiable instruments for collection in the ordinary course of business; (vi) the Issuer and its Subsidiaries may make loans and advances in the ordinary course of business consistent with past practices to their respective employees for moving, travel and emergency expenses and other similar expenses, so long as the aggregate principal amount thereof at any one time outstanding (determined without regard to any write-downs or write-offs of such loans and advances) shall not exceed $750,000; (vii) the Issuer and its Subsidiaries may effect Permitted Acquisitions (including Start-Up Costs) in accordance with the requirements of Section 8.12; (viii) the Issuer and/or any of its Wholly-Owned Subsidiaries shall be permitted to make Investments in any Joint Venture on any date, so long as (x) the aggregate amount of such Investments does not exceed the Annual Available JV Basket Amount in effect on such date or the Aggregate Available JV Basket Amount in effect on such date (in each case, after giving effect to all prior and contemporaneous adjustments thereto, except as a result of such Investment), (y) no Default or Event of Default exists or would exist immediately after giving effect to the respective Investment and (z) neither the Issuer nor any of its Subsidiaries has any obligation to (A) subscribe for additional equity interests in such Joint Venture or (B) maintain or preserve such Joint Venture's financial condition (except for any guaranty by Parent or any if its Subsidiaries of obligations of such Joint Venture included in clause (iii) of the definitions of "Annual Available JV Basket Amount" and "Aggregate Available JV Basket Amount") or cause such Joint Venture to achieve certain levels of operating results; (ix) the Parent and its Subsidiaries may own the Capital Stock of their respective Subsidiaries created or acquired in accordance with the terms of this Agreement (so long as all amounts invested in such Subsidiaries are independently justified under another provision of this Section 9.7(b)); (x) the Issuer may make intercompany loans and advances to any of its Wholly-owned Subsidiaries that is a Guarantor (collectively, "Intercompany Loans"), (xi) the Parent may make cash equity contributions to the Issuer and the Issuer may make cash equity contributions to any of its direct Wholly-owned Subsidiaries that is a Guarantor; and (xii) the Parent may contribute the Development Assets to the Issuer pursuant to Section 9.4(d).

Restricted Payments and Investments. (ai) The Credit Parties will notDeclare or pay any dividend on, or make any payment on account of, or set apart assets for a sinking or other analogous fund for, the purchase, redemption, defeasance, retirement or other acquisition of, any Equity Interests of the Parent Borrower or any Subsidiary, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of the Parent Borrower or any Subsidiary, or enter into any derivatives or other transaction with any financial institution, commodities or stock exchange or clearinghouse (a “Derivatives Counterparty”) obligating the Parent Borrower or any Subsidiary to make payments to such Derivatives Counterparty as a result of any change in market value of any such Equity Interests (collectively, “Restricted PaymentPayments”) or (ii) make or permit to exist any Investments (including by way of Division), exceptexcept that: (a) any Subsidiary may make Restricted Payments to the holders of its Equity Interests on a pro rata basis, or a more favorable basis to any such holder which is a Loan Party or a Subsidiary of a Loan Party; (b) (i) the declaration and payment Parent Borrower may make Restricted Payments in the form of dividends and distributions by a Wholly-owned Subsidiary of any Credit Party on its Capital Stock to such Credit Party Equity Interests (other than the Parent); (iiDisqualified Stock) Restricted Payments made on or about the Closing Date pursuant to the Transaction Documents; (iii) the Issuer may distribute the Development Assets to of the Parent on the Closing Date; (iv) Issuer may pay cash dividends to the Parent, so long as (x) there shall exist no Default or Event of Default (both before Borrower and immediately after giving effect to the payment thereof), (y) the proceeds thereof are promptly used by Parent to pay operating expenses and other similar corporate overhead costs and expenses (but excluding in any event any costs, expenses, or losses relating to Development Assets) and (z) the aggregate amount of dividends paid by the Issuer in any fiscal year of Parent pursuant to this clause (iv) does not exceed $100,000; (v) the Issuer may pay cash dividends to the Parent in the amounts and at the times of any payment by the Parent in respect of taxes, provided that (x) the amount of cash dividends paid pursuant to this clause (v) to enable the Parent to pay federal income taxes at any time shall not exceed the lesser of (1) the amount of such federal income taxes owing by the Parent at such time for the respective period and (2) the amount of such federal income taxes owing by the Issuer and its Subsidiaries on a consolidated basis for such period if determined without regard to the Parent's ownership of the Issuer and (y) any refunds shall promptly be returned by the Parent to the Issuer; (vi) the Parent may pay regularly accruing dividends with respect to Seller Preferred Stock through the issuance of additional shares of Seller Preferred Stock (but not in cash) in accordance with the terms of the documentation governing the same; (vii) the Parent may pay regularly accruing dividends with respect to the Series A Preferred Stock through an increase in the aggregate liquidation preference of the outstanding Series A Preferred Stock by the amount of the accumulated dividends thereunder (but not in cash) in accordance with the terms of the Series A Preferred Stock Documents; and (viii) any Subsidiary of the Issuer that is not a Wholly-owned Subsidiary may pay cash dividends to its shareholders or partners generally, so long as the Issuer or its respective Subsidiary which owns the equity interest or interests in the Subsidiary paying such dividends receives at least its proportionate share thereof (based upon its relative holdings of equity interests in the Subsidiary paying such dividends and taking into account the relative preferences, if any, of the various classes of equity interests in such Subsidiary or the terms of any agreements applicable thereto). (b) The Credit Parties will not make or maintain any Investments, except that (i) the Credit Parties may make Permitted Investments; (ii) the Issuer and its Subsidiaries Parent Borrower may acquire and hold receivables owing to any of them, if created or acquired make cash payments in the ordinary course of business and payable or dischargeable in accordance with customary terms; (iii) the Issuer may enter into Interest Rate Protection or Other Hedging Agreements to the extent such is entered into to satisfy the requirements of Section 7.11 lieu of the Senior Loan Agreement (as in effect on the date hereof); (iv) the Stock Purchases shall be permittedissuance of fractional shares; provided that, so long as same are consummated in accordance with the relevant requirements of respect to a transaction under this Section 5.10; (v) the Issuer and its Subsidiaries may endorse negotiable instruments for collection in the ordinary course of business; (vi) the Issuer and its Subsidiaries may make loans and advances in the ordinary course of business consistent with past practices to their respective employees for moving, travel and emergency expenses and other similar expenses, so long as the aggregate principal amount thereof at any one time outstanding (determined without regard to any write-downs or write-offs of such loans and advances) shall not exceed $750,000; (vii) the Issuer and its Subsidiaries may effect Permitted Acquisitions (including Start-Up Costs) in accordance with the requirements of Section 8.12; (viii) the Issuer and/or any of its Wholly-Owned Subsidiaries shall be permitted to make Investments in any Joint Venture on any date, so long as (x) the aggregate amount of such Investments does not exceed the Annual Available JV Basket Amount in effect on such date or the Aggregate Available JV Basket Amount in effect on such date (in each case, after giving effect to all prior and contemporaneous adjustments thereto, except as a result of such Investment7.06(b)(ii), (yA) no Default or Event of Default exists shall have occurred and be continuing prior to or would exist immediately after giving effect to the respective Investment any such cash payments and (zB) neither immediately upon consummation of any cash payments for fractional shares, such fractional shares must be retired; (c) [reserved]; (d) so long as no Event of Default has occurred and is continuing or would be caused thereby, the Issuer nor Parent Borrower or any Subsidiary may repurchase, redeem, or otherwise acquire or retire any Equity Interests of its Subsidiaries has the Parent Borrower or any obligation Subsidiary held by any existing or former director, officer or employee of the Parent Borrower or any Subsidiary (or their transferees, estates or beneficiaries) pursuant to any employment agreement, equity subscription agreement, stock option agreement, or similar agreement, provided, that the aggregate amount of payments under this Section 7.6(d) subsequent to March 26, 2019 (net of any proceeds received by the Parent Borrower subsequent to the date hereof in connection with resales of any common stock or common stock options so purchased) shall not exceed $5,000,000 in any twelve (12) month period and not more than $15,000,000 in the aggregate during the term of this Agreement; (e) the Parent Borrower may acquire Equity Interests in connection with the exercise of stock options or stock appreciation rights by way of cashless exercise or in connection with the satisfaction of withholding tax obligations; (f) the Parent Borrower may make any Restricted Payment in exchange for, or in an amount not to exceed, the net cash proceeds of a substantially concurrent sale (other than to a Subsidiary of the Parent Borrower) of, Equity Interests of the Parent Borrower (other than Disqualified Stock), or from the substantially concurrent contribution of common equity capital to the Parent Borrower, with a sale and contribution being deemed substantially concurrent if such Restricted Payment occurs not more than 60 days after such sale or contribution; provided that immediately before and after giving effect to any Restricted Payment under this Section 7.6(f), Liquidity is not less than $25,000,000; (g) the Parent Borrower may make the payment of any dividend or consummate any irrevocable redemption permitted under Section 7.6(i) within 60 days after the date of declaration of the dividend or the giving of the redemption notice, as the case may be, if at the date of declaration or notice, the dividend or redemption payment would have complied with the provisions of this Agreement; provided that immediately before and after giving effect to any Restricted Payment under this Section 7.6(g), Liquidity is not less than $25,000,000; (h) the Parent Borrower or any Subsidiary may make or hold the following Investments: (i) Investments in cash and Cash Equivalents; (ii) loans or advances to employees in the Ordinary Course of Business and consistent with past practices, including for payroll, travel and similar expenses, but in any event not to exceed $2,000,000 in the aggregate outstanding at any one time; (iii) (A) subscribe for additional equity interests Investments by the Parent Borrower and its Subsidiaries in such Joint Venture or their respective Subsidiaries outstanding on the date hereof, (B) maintain or preserve such Joint Venture's financial condition (except for any guaranty additional Investments by the Parent or any if Borrower and its Subsidiaries in Loan Parties, (C) additional Investments by Subsidiaries of obligations the Parent Borrower that are not Loan Parties in other Subsidiaries that are not Loan Parties, and (D) so long as no Default or Event of Default exists immediately before the making of such Joint Venture included Investment or would exist after giving effect thereto, additional Investments by the Loan Parties in clause Subsidiaries that are not Loan Parties in an aggregate amount not to exceed $10,000,000; (iiiiv) Investments in Project Finance Subsidiaries not to exceed $25,000,000 outstanding in the aggregate (measured on the date each such Investment was made and without giving effect to subsequent changes in value) for all such Investments on or after March 26, 2019, it being understood that if such Project Finance Subsidiary repays such Investment in full in cash or if a Borrower shall sell such Project Finance Subsidiary in full for cash, such Investment will no longer be outstanding for purposes hereof to the extent of such cash received; provided that immediately before and after giving effect to the making of any Investment under this Section 7.6(h)(iv), Liquidity is not less than $25,000,000; (v) Guarantees of Indebtedness of Loan Parties permitted under Section 7.3; (vi) Permitted Acquisitions; (vii) so long as the Payment Conditions applicable to Investments are satisfied immediately after giving effect thereto, other Investments; (viii) any Investment consisting of the definitions non-cash proceeds of "Annual Available JV Basket Amount" a Disposition that was made pursuant to and "Aggregate Available JV Basket Amount") or cause such Joint Venture to achieve certain levels of operating resultsin compliance with Section 7.5 hereof; (ix) any Investments received (a) in satisfaction of judgments or in compromise of obligations of trade creditors or customers that were incurred in the Ordinary Course of Business, including pursuant to any plan of reorganization or similar arrangement upon the bankruptcy or insolvency of any trade creditor or customer or (b) as a result of a foreclosure by the Parent and Borrower or any of its Subsidiaries may own the Capital Stock of their respective Subsidiaries created or acquired with respect to any secured Investment in accordance with the terms of this Agreement (so long as all amounts invested in such Subsidiaries are independently justified under another provision of this Section 9.7(b))default; (x) to the Issuer extent constituting an Investment, Investments in Swap Contracts permitted under Section 7.13; (i) so long as the applicable Payment Conditions are satisfied after giving effect thereto, the Parent Borrower may make intercompany loans and advances other Restricted Payments (other than Investments). Furthermore, for the avoidance of doubt, payments made (i) for the purpose of matching contributions of employees’ 401(k) Plan contributions (including payments made to any third-parties for the purpose of its Whollypermitting such third-owned Subsidiaries that is a Guarantor (collectively, "Intercompany Loans"), (xi) parties to acquire Equity Interests of the Parent may make cash equity contributions Borrower to be delivered to employees for the purpose of such contributions) and (ii) pursuant to the Issuer Parent Borrower’s Long-Term Incentive Plan, as amended and the Issuer may make cash equity contributions to any of its direct Wholly-owned Subsidiaries that is a Guarantor; and (xii) the Parent may contribute the Development Assets to the Issuer pursuant to Section 9.4(d)restated, shall not be considered Restricted Payments.

Restricted Payments and Investments. (a) The Credit Parties Company will not, directly or indirectlyand will not permit any Restricted Subsidiary to, make any Restricted Payment, except: (i) Payment or Restricted Investment if at the declaration time of making the same and payment of dividends and distributions by a Wholly-owned Subsidiary of any Credit Party on its Capital Stock to such Credit Party (other than the Parent); (ii) Restricted Payments made on or about the Closing Date pursuant to the Transaction Documents; (iii) the Issuer may distribute the Development Assets to the Parent on the Closing Date; (iv) Issuer may pay cash dividends to the Parent, so long as (x) there shall exist no Default or Event of Default (both before and immediately after giving effect to the payment thereof), thereto (y) the proceeds thereof are promptly used by Parent to pay operating expenses and other similar corporate overhead costs and expenses (but excluding in any event any costs, expenses, or losses relating to Development Assets) and (z) the aggregate amount of dividends paid by the Issuer in any fiscal year of Parent pursuant to this clause (iv) does not exceed $100,000; (v) the Issuer may pay cash dividends to the Parent in the amounts and at the times of any payment by the Parent in respect of taxes, provided that (x) the amount of cash dividends paid pursuant to this clause (v) to enable the Parent to pay federal income taxes at any time shall not exceed the lesser of (1) the amount of such federal income taxes owing by the Parent at such time for the respective period and (2) the amount of such federal income taxes owing by the Issuer and its Subsidiaries on a consolidated basis for such period if determined without regard to the Parent's ownership of the Issuer and (yA) any refunds shall promptly be returned by the Parent to the Issuer; (vi) the Parent may pay regularly accruing dividends with respect to Seller Preferred Stock through the issuance of additional shares of Seller Preferred Stock (but not in cash) in accordance with the terms of the documentation governing the same; (vii) the Parent may pay regularly accruing dividends with respect to the Series A Preferred Stock through an increase in the aggregate liquidation preference of the outstanding Series A Preferred Stock by the amount of the accumulated dividends thereunder (but not in cash) in accordance with the terms of the Series A Preferred Stock Documents; and (viii) any Subsidiary of the Issuer that is not a Wholly-owned Subsidiary may pay cash dividends to its shareholders or partners generally, so long as the Issuer or its respective Subsidiary which owns the equity interest or interests in the Subsidiary paying such dividends receives at least its proportionate share thereof (based upon its relative holdings of equity interests in the Subsidiary paying such dividends and taking into account the relative preferences, if any, of the various classes of equity interests in such Subsidiary or the terms of any agreements applicable thereto). (b) The Credit Parties will not make or maintain any Investments, except that (i) the Credit Parties may make Permitted Investments; (ii) the Issuer and its Subsidiaries may acquire and hold receivables owing to any of them, if created or acquired in the ordinary course of business and payable or dischargeable in accordance with customary terms; (iii) the Issuer may enter into Interest Rate Protection or Other Hedging Agreements to the extent such is entered into to satisfy the requirements of Section 7.11 of the Senior Loan Agreement (as in effect on the date hereof); (iv) the Stock Purchases shall be permitted, so long as same are consummated in accordance with the relevant requirements of Section 5.10; (v) the Issuer and its Subsidiaries may endorse negotiable instruments for collection in the ordinary course of business; (vi) the Issuer and its Subsidiaries may make loans and advances in the ordinary course of business consistent with past practices to their respective employees for moving, travel and emergency expenses and other similar expenses, so long as the aggregate principal amount thereof at any one time outstanding (determined without regard to any write-downs or write-offs of such loans and advances) shall not exceed $750,000; (vii) the Issuer and its Subsidiaries may effect Permitted Acquisitions (including Start-Up Costs) in accordance with the requirements of Section 8.12; (viii) the Issuer and/or any of its Wholly-Owned Subsidiaries shall be permitted to make Investments in any Joint Venture on any date, so long as (x) the aggregate amount of such Investments does not exceed the Annual Available JV Basket Amount in effect on such date or the Aggregate Available JV Basket Amount in effect on such date (in each case, after giving effect to all prior and contemporaneous adjustments thereto, except as a result of such Investment), (y) no Default or Event of Default exists or would exist immediately after giving effect to the respective Investment and (z) neither the Issuer nor any of its Subsidiaries has any obligation to (A) subscribe for additional equity interests in such Joint Venture or (B) maintain or preserve such Joint Venture's financial condition the Net Amount of Restricted Payments and Investments would exceed the sum of (except for any guaranty by Parent or any 1) $75,000,000, plus (2) the greater of (i) 50% of the Adjusted Net Income (if its Subsidiaries of obligations of such Joint Venture included in clause (iiipositive ) of the definitions Company and its Restricted Subsidiaries for each fiscal year subsequent to December 31, 2000 (the “Net Income Account”), provided, that, if Adjusted Net Income of "Annual Available JV Basket Amount" the Company and "Aggregate Available JV Basket Amount"its Restricted Subsidiaries for any fiscal year subsequent to December 31, 2000 shall be negative, 50% of such negative amount shall be subtracted from the Net Income Account, but only to the extent, if any, that the Net Income Account exceeds zero, and (ii) $25,000,000 for each fiscal year subsequent to December 31, 2000, plus (3) the Net Issuance Proceeds of any New Equity issued after the date hereof. For purposes of the foregoing, the “Net Amount of Restricted Payments and Investments” as of any date of determination shall mean the sum of all Restricted Payments and Restricted Investments (valued at cost) made after December 31, 2000 made by the Company and its Restricted Subsidiaries pursuant to this subsection (a), less any return of capital (but not any earnings thereon) received by the Company or cause any Restricted Subsidiary in respect of any such Joint Venture to achieve certain levels of operating results;Restricted Investment. (ixb) Notwithstanding the Parent foregoing, after Holdco has been organized the Company may make Restricted Payments to Holdco in amounts equal to Related Taxes and Permitted Expenses without affecting the Net Amount of Restricted Payments and Investments.” 1.7 Section 10.5 of the Note Agreements is hereby amended by deleting the words “cash equivalent investments at the Company’s discretion” in the second sentence of clause (v) thereof and inserting the words “Investments of the type listed in clauses (iv), (v) and (vi) of the definition of Restricted Investments” in lieu thereof. 1.8 Section 10.6 of the Note Agreements is hereby amended to add an additional sentence at the end thereof to read in its entirety as follows: “Notwithstanding the foregoing, employees of the Company and its Restricted Subsidiaries may own provide management, accounting, legal and related services to Holdco, provided that if Holdco acquires any Subsidiary or group of assets other than the Capital Stock Company, the Subsidiaries of their respective Subsidiaries created or acquired in accordance with the terms of this Agreement (so long as all amounts invested in Company and the assets owned by the Company and its Subsidiaries, such Subsidiaries are independently justified under another provision of this Section 9.7(b)); (x) the Issuer may make intercompany loans and advances to any of its Wholly-owned Subsidiaries that is a Guarantor (collectively, "Intercompany Loans"), (xi) the Parent may make cash equity contributions services shall only be provided to the Issuer and extent they relate to such other Subsidiary or group of assets in consideration of fees payable by Holdco in cash based on a reasonable prorated amount of the Issuer may make cash equity contributions to any compensation of such employees paid by the Company and/or its direct Wholly-owned Subsidiaries that is a Guarantor; and (xii) the Parent may contribute the Development Assets to the Issuer pursuant to Section 9.4(d)Restricted Subsidiaries.”

Restricted Payments and Investments. (ai) The Credit Parties will notDeclare or pay any dividend on, or make any payment on account of, or set apart assets for a sinking or other analogous fund for, the purchase, redemption, defeasance, retirement or other acquisition of, any Equity Interests of the Parent Borrower or any Subsidiary, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of the Parent Borrower or any Subsidiary, or enter into any derivatives or other transaction with any financial institution, commodities or stock exchange or clearinghouse (a “Derivatives Counterparty”) obligating the Parent Borrower or any Subsidiary to make payments to such Derivatives Counterparty as a result of any change in market value of any such Equity Interests (collectively, “Restricted PaymentPayments”) or (ii) make or permit to exist any Investments (including by way of Division), exceptexcept that: (a) any Subsidiary may make Restricted Payments to the holders of its Equity Interests on a pro rata basis, or a more favorable basis to any such holder which is a Loan Party or a Subsidiary of a Loan Party; (b) (i) the declaration and payment Parent Borrower may make Restricted Payments in the form of dividends and distributions by a Wholly-owned Subsidiary of any Credit Party on its Capital Stock to such Credit Party Equity Interests (other than the Parent); (iiDisqualified Stock) Restricted Payments made on or about the Closing Date pursuant to the Transaction Documents; (iii) the Issuer may distribute the Development Assets to of the Parent on the Closing Date; (iv) Issuer may pay cash dividends to the Parent, so long as (x) there shall exist no Default or Event of Default (both before Borrower and immediately after giving effect to the payment thereof), (y) the proceeds thereof are promptly used by Parent to pay operating expenses and other similar corporate overhead costs and expenses (but excluding in any event any costs, expenses, or losses relating to Development Assets) and (z) the aggregate amount of dividends paid by the Issuer in any fiscal year of Parent pursuant to this clause (iv) does not exceed $100,000; (v) the Issuer may pay cash dividends to the Parent in the amounts and at the times of any payment by the Parent in respect of taxes, provided that (x) the amount of cash dividends paid pursuant to this clause (v) to enable the Parent to pay federal income taxes at any time shall not exceed the lesser of (1) the amount of such federal income taxes owing by the Parent at such time for the respective period and (2) the amount of such federal income taxes owing by the Issuer and its Subsidiaries on a consolidated basis for such period if determined without regard to the Parent's ownership of the Issuer and (y) any refunds shall promptly be returned by the Parent to the Issuer; (vi) the Parent may pay regularly accruing dividends with respect to Seller Preferred Stock through the issuance of additional shares of Seller Preferred Stock (but not in cash) in accordance with the terms of the documentation governing the same; (vii) the Parent may pay regularly accruing dividends with respect to the Series A Preferred Stock through an increase in the aggregate liquidation preference of the outstanding Series A Preferred Stock by the amount of the accumulated dividends thereunder (but not in cash) in accordance with the terms of the Series A Preferred Stock Documents; and (viii) any Subsidiary of the Issuer that is not a Wholly-owned Subsidiary may pay cash dividends to its shareholders or partners generally, so long as the Issuer or its respective Subsidiary which owns the equity interest or interests in the Subsidiary paying such dividends receives at least its proportionate share thereof (based upon its relative holdings of equity interests in the Subsidiary paying such dividends and taking into account the relative preferences, if any, of the various classes of equity interests in such Subsidiary or the terms of any agreements applicable thereto). (b) The Credit Parties will not make or maintain any Investments, except that (i) the Credit Parties may make Permitted Investments; (ii) the Issuer and its Subsidiaries Parent Borrower may acquire and hold receivables owing to any of them, if created or acquired make cash payments in the ordinary course of business and payable or dischargeable in accordance with customary terms; (iii) the Issuer may enter into Interest Rate Protection or Other Hedging Agreements to the extent such is entered into to satisfy the requirements of Section 7.11 lieu of the Senior Loan Agreement (as in effect on the date hereof); (iv) the Stock Purchases shall be permittedissuance of fractional shares; provided that, so long as same are consummated in accordance with the relevant requirements of respect to a transaction under this Section 5.10; (v) the Issuer and its Subsidiaries may endorse negotiable instruments for collection in the ordinary course of business; (vi) the Issuer and its Subsidiaries may make loans and advances in the ordinary course of business consistent with past practices to their respective employees for moving, travel and emergency expenses and other similar expenses, so long as the aggregate principal amount thereof at any one time outstanding (determined without regard to any write-downs or write-offs of such loans and advances) shall not exceed $750,000; (vii) the Issuer and its Subsidiaries may effect Permitted Acquisitions (including Start-Up Costs) in accordance with the requirements of Section 8.12; (viii) the Issuer and/or any of its Wholly-Owned Subsidiaries shall be permitted to make Investments in any Joint Venture on any date, so long as (x) the aggregate amount of such Investments does not exceed the Annual Available JV Basket Amount in effect on such date or the Aggregate Available JV Basket Amount in effect on such date (in each case, after giving effect to all prior and contemporaneous adjustments thereto, except as a result of such Investment7.06(b)(ii), (yA) no Default or Event of Default exists shall have occurred and be continuing prior to or would exist immediately after giving effect to the respective Investment any such cash payments and (zB) neither immediately upon consummation of any cash payments for fractional shares, such fractional shares must be retired; (c) [reserved]; (d) so long as no Event of Default has occurred and is continuing or would be caused thereby, the Issuer nor Parent Borrower or any Subsidiary may repurchase, redeem, or otherwise acquire or retire any Equity Interests of its Subsidiaries has the Parent Borrower or any obligation Subsidiary held by any existing or former director, officer or employee of the Parent Borrower or any Subsidiary (or their transferees, estates or beneficiaries) pursuant to any employment agreement, equity subscription agreement, stock option agreement, or similar agreement, provided, that the aggregate amount of payments under this Section 7.6(d) subsequent to March 26, 2019 (net of any proceeds received by the Parent Borrower subsequent to the date hereof in connection with resales of any common stock or common stock options so purchased) shall not exceed $5,000,000 in any twelve (12) month period and not more than $15,000,000 in the aggregate during the term of this Agreement; (e) the Parent Borrower may acquire Equity Interests in connection with the exercise of stock options or stock appreciation rights by way of cashless exercise or in connection with the satisfaction of withholding tax obligations; (f) the Parent Borrower may make any Restricted Payment in exchange for, or in an amount not to exceed, the net cash proceeds of a substantially concurrent sale (other than to a Subsidiary of the Parent Borrower) of, Equity Interests of the Parent Borrower (other than Disqualified Stock), or from the substantially concurrent contribution of common equity capital to the Parent Borrower, with a sale and contribution being deemed substantially concurrent if such Restricted Payment occurs not more than 60 days after such sale or contribution; provided that immediately before and after giving effect to any Restricted Payment under this Section 7.6(f), Liquidity is not less than $25,000,000; (g) the Parent Borrower may make the payment of any dividend or consummate any irrevocable redemption permitted under Section 7.6(i) within 60 days after the date of declaration of the dividend or the giving of the redemption notice, as the case may be, if at the date of declaration or notice, the dividend or redemption payment would have complied with the provisions of this Agreement; provided that immediately before and after giving effect to any Restricted Payment under this Section 7.6(g), Liquidity is not less than $25,000,000; (h) the Parent Borrower or any Subsidiary may make or hold the following Investments: (i) Investments in cash and Cash Equivalents; (ii) loans or advances to employees in the Ordinary Course of Business and consistent with past practices, including for payroll, travel and similar expenses, but in any event not to exceed $2,000,000 in the aggregate outstanding at any one time; (iii) (A) subscribe for additional equity interests Investments by the Parent Borrower and its Subsidiaries in such Joint Venture or their respective Subsidiaries outstanding on the date hereof, (B) maintain or preserve such Joint Venture's financial condition (except for any guaranty additional Investments by the Parent or any if Borrower and its Subsidiaries in Loan Parties, (C) additional Investments by Subsidiaries of obligations the Parent Borrower that are not Loan Parties in other Subsidiaries that are not Loan Parties, and (D) so long as no Default or Event of Default exists immediately before the making of such Joint Venture included Investment or would exist after giving effect thereto, additional Investments by the Loan Parties in clause Subsidiaries that are not Loan Parties in an aggregate amount not to exceed $10,000,000; (iiiiv) Investments in Project Finance Subsidiaries not to exceed $25,000,000 outstanding in the aggregate (measured on the date each such Investment was made and without giving effect to subsequent changes in value) for all such Investments on or after March 26, 2019, it being understood that if such Project Finance Subsidiary repays such Investment in full in cash or if a Borrower shall sell such Project Finance Subsidiary in full for cash, such Investment will no longer be outstanding for purposes hereof to the extent of such cash received; provided that immediately before and after giving effect to the making of any Investment under this Section 7.6(h)(iv), Liquidity is not less than $25,000,000; (v) Guarantees of Indebtedness of Loan Parties permitted under Section 7.3; (vi) Permitted Acquisitions; (vii) so long as the Payment Conditions applicable to Investments are satisfied immediately after giving effect thereto, other Investments; (viii) any Investment consisting of the definitions non-cash proceeds of "Annual Available JV Basket Amount" a Disposition that was made pursuant to and "Aggregate Available JV Basket Amount") or cause such Joint Venture to achieve certain levels of operating resultsin compliance with Section 7.5 hereof; (ix) any Investments received (a) in satisfaction of judgments or in compromise of obligations of trade creditors or customers that were incurred in the Ordinary Course of Business, including pursuant to any plan of reorganization or similar arrangement upon the bankruptcy or insolvency of any trade creditor or customer or (b) as a result of a foreclosure by the Parent and Borrower or any of its Subsidiaries may own the Capital Stock of their respective Subsidiaries created or acquired with respect to any secured Investment in accordance with the terms of this Agreement (so long as all amounts invested in such Subsidiaries are independently justified under another provision of this Section 9.7(b))default; (x) to the Issuer extent constituting an Investment, Investments in Swap Contracts permitted under Section 7.13; (i) so long as the applicable Payment Conditions are satisfied after giving effect thereto, the Parent Borrower may make intercompany loans and advances other Restricted Payments (other than Investments). Furthermore, for the avoidance of doubt, payments made (i) for the purpose of matching contributions of employees’ 401(k) Plan contributions (including payments made to any third- parties for the purpose of its Whollypermitting such third-owned Subsidiaries that is a Guarantor (collectively, "Intercompany Loans"), (xi) parties to acquire Equity Interests of the Parent may make cash equity contributions Borrower to be delivered to employees for the purpose of such contributions) and (ii) pursuant to the Issuer Parent Borrower’s Long-Term Incentive Plan, as amended and the Issuer may make cash equity contributions to any of its direct Wholly-owned Subsidiaries that is a Guarantor; and (xii) the Parent may contribute the Development Assets to the Issuer pursuant to Section 9.4(d)restated, shall not be considered Restricted Payments.

Restricted Payments and Investments. (ai) The Credit Parties will notDeclare or pay any dividend on, or make any payment on account of, or set apart assets for a sinking or other analogous fund for, the purchase, redemption, defeasance, retirement or other acquisition of, any Equity Interests of the Parent Borrower or any Subsidiary, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of the Parent Borrower or any Subsidiary, or enter into any derivatives or other transaction with any financial institution, commodities or stock exchange or clearinghouse (a “Derivatives Counterparty”) obligating the Parent Borrower or any Subsidiary to make payments to such Derivatives Counterparty as a result of any change in market value of any such Equity Interests (collectively, “Restricted PaymentPayments”) or (ii) make or permit to exist any Investments (including by way of Division), exceptexcept that: (a) any Subsidiary may make Restricted Payments to the holders of its Equity Interests on a pro rata basis, or a more favorable basis to any such holder which is a Loan Party or a Subsidiary of a Loan Party; (b) (i) the declaration and payment Parent Borrower may make Restricted Payments in the form of dividends and distributions by a Wholly-owned Subsidiary of any Credit Party on its Capital Stock to such Credit Party Equity Interests (other than the Parent); (iiDisqualified Stock) Restricted Payments made on or about the Closing Date pursuant to the Transaction Documents; (iii) the Issuer may distribute the Development Assets to of the Parent on the Closing Date; (iv) Issuer may pay cash dividends to the Parent, so long as (x) there shall exist no Default or Event of Default (both before Borrower and immediately after giving effect to the payment thereof), (y) the proceeds thereof are promptly used by Parent to pay operating expenses and other similar corporate overhead costs and expenses (but excluding in any event any costs, expenses, or losses relating to Development Assets) and (z) the aggregate amount of dividends paid by the Issuer in any fiscal year of Parent pursuant to this clause (iv) does not exceed $100,000; (v) the Issuer may pay cash dividends to the Parent in the amounts and at the times of any payment by the Parent in respect of taxes, provided that (x) the amount of cash dividends paid pursuant to this clause (v) to enable the Parent to pay federal income taxes at any time shall not exceed the lesser of (1) the amount of such federal income taxes owing by the Parent at such time for the respective period and (2) the amount of such federal income taxes owing by the Issuer and its Subsidiaries on a consolidated basis for such period if determined without regard to the Parent's ownership of the Issuer and (y) any refunds shall promptly be returned by the Parent to the Issuer; (vi) the Parent may pay regularly accruing dividends with respect to Seller Preferred Stock through the issuance of additional shares of Seller Preferred Stock (but not in cash) in accordance with the terms of the documentation governing the same; (vii) the Parent may pay regularly accruing dividends with respect to the Series A Preferred Stock through an increase in the aggregate liquidation preference of the outstanding Series A Preferred Stock by the amount of the accumulated dividends thereunder (but not in cash) in accordance with the terms of the Series A Preferred Stock Documents; and (viii) any Subsidiary of the Issuer that is not a Wholly-owned Subsidiary may pay cash dividends to its shareholders or partners generally, so long as the Issuer or its respective Subsidiary which owns the equity interest or interests in the Subsidiary paying such dividends receives at least its proportionate share thereof (based upon its relative holdings of equity interests in the Subsidiary paying such dividends and taking into account the relative preferences, if any, of the various classes of equity interests in such Subsidiary or the terms of any agreements applicable thereto). (b) The Credit Parties will not make or maintain any Investments, except that (i) the Credit Parties may make Permitted Investments; (ii) the Issuer and its Subsidiaries Parent Borrower may acquire and hold receivables owing to any of them, if created or acquired make cash payments in the ordinary course of business and payable or dischargeable in accordance with customary terms; (iii) the Issuer may enter into Interest Rate Protection or Other Hedging Agreements to the extent such is entered into to satisfy the requirements of Section 7.11 lieu of the Senior Loan Agreement (as in effect on the date hereof); (iv) the Stock Purchases shall be permittedissuance of fractional shares; provided that, so long as same are consummated in accordance with the relevant requirements of respect to a transaction under this Section 5.10; (v) the Issuer and its Subsidiaries may endorse negotiable instruments for collection in the ordinary course of business; (vi) the Issuer and its Subsidiaries may make loans and advances in the ordinary course of business consistent with past practices to their respective employees for moving, travel and emergency expenses and other similar expenses, so long as the aggregate principal amount thereof at any one time outstanding (determined without regard to any write-downs or write-offs of such loans and advances) shall not exceed $750,000; (vii) the Issuer and its Subsidiaries may effect Permitted Acquisitions (including Start-Up Costs) in accordance with the requirements of Section 8.12; (viii) the Issuer and/or any of its Wholly-Owned Subsidiaries shall be permitted to make Investments in any Joint Venture on any date, so long as (x) the aggregate amount of such Investments does not exceed the Annual Available JV Basket Amount in effect on such date or the Aggregate Available JV Basket Amount in effect on such date (in each case, after giving effect to all prior and contemporaneous adjustments thereto, except as a result of such Investment7.06(b)(ii), (yA) no Default or Event of Default exists shall have occurred and be continuing prior to or would exist immediately after giving effect to the respective Investment any such cash payments and (zB) neither immediately upon consummation of any cash payments for fractional shares, such fractional shares must be retired; (c) Restricted Payments required to consummate the Issuer nor Specified Permitted Reorganization; (d) so long as no Event of Default has occurred and is continuing or would be caused thereby, the Parent Borrower or any Subsidiary may repurchase, redeem, or otherwise acquire or retire any Equity Interests of its Subsidiaries has the Parent Borrower or any obligation Subsidiary held by any existing or former director, officer or employee of the Parent Borrower or any Subsidiary (or their transferees, estates or beneficiaries) pursuant to any employment agreement, equity subscription agreement, stock option agreement, or similar agreement, provided, that the aggregate amount of payments under this Section 7.6(d) subsequent to the Closing Date (net of any proceeds received by the Parent Borrower subsequent to the date hereof in connection with resales of any common stock or common stock options so purchased) shall not exceed $5,000,000 in any twelve (12) month period and not more than $15,000,000 in the aggregate during the term of this Agreement; (e) the Parent Borrower may acquire Equity Interests in connection with the exercise of stock options or stock appreciation rights by way of cashless exercise or in connection with the satisfaction of withholding tax obligations; (f) the Parent Borrower may make any Restricted Payment in exchange for, or in an amount not to exceed, the net cash proceeds of a substantially concurrent sale (other than to a Subsidiary of the Parent Borrower) of, Equity Interests of the Parent Borrower (other than Disqualified Stock), or from the substantially concurrent contribution of common equity capital to the Parent Borrower, with a sale and contribution being deemed substantially concurrent if such Restricted Payment occurs not more than 60 days after such sale or contribution; provided that immediately before and after giving effect to any Restricted Payment under this Section 7.6(f), the Parent Borrower is in compliance with Section 7.2; (g) the Parent Borrower may make the payment of any dividend or consummate any irrevocable redemption permitted under Section 7.6(i) within 60 days after the date of declaration of the dividend or the giving of the redemption notice, as the case may be, if at the date of declaration or notice, the dividend or redemption payment would have complied with the provisions of this Agreement; provided that immediately before and after giving effect to any Restricted Payment under this Section 7.6(g), the Parent Borrower is in compliance with Section 7.2; (h) the Parent Borrower or any Subsidiary may make or hold the following Investments: (i) Investments in cash and Cash Equivalents; (ii) loans or advances to employees in the Ordinary Course of Business and consistent with past practices, including for payroll, travel and similar expenses, but in any event not to exceed $2,000,000 in the aggregate outstanding at any one time; (iii) (A) subscribe for additional equity interests Investments by the Parent Borrower and its Subsidiaries in such Joint Venture or their respective Subsidiaries outstanding on the date hereof, (B) maintain or preserve such Joint Venture's financial condition (except for any guaranty additional Investments by the Parent or any if Borrower and its Subsidiaries in Loan Parties, (C) additional Investments by Subsidiaries of obligations the Parent Borrower that are not Loan Parties in other Subsidiaries that are not Loan Parties, (D) Investments required to consummate the Specified Permitted Reorganization and (E) so long as no Default or Event of Default exists immediately before the making of such Joint Venture included Investment or would exist after giving effect thereto, additional Investments by the Loan Parties in clause Subsidiaries that are not Loan Parties in an aggregate amount not to exceed $10,000,000; (iiiiv) Investments in Project Finance Subsidiaries not to exceed $25,000,000 outstanding in the aggregate (measured on the date each such Investment was made and without giving effect to subsequent changes in value) for all such Investments on or after the date hereof, it being understood that if such Project Finance Subsidiary repays such Investment in full in cash or if a Borrower shall sell such Project Finance Subsidiary in full for cash, such Investment will no longer be outstanding for purposes hereof to the extent of such cash received; provided that immediately before and after giving effect to the making of any Investment under this Section 7.6(h)(iv), the Parent Borrower is in compliance with Section 7.2; (v) Guarantees of Indebtedness of Loan Parties permitted under Section 7.3; (vi) Permitted Acquisitions; (vii) so long as the Payment Conditions applicable to Investments are satisfied immediately after giving effect thereto, other Investments; (viii) any Investment consisting of the definitions non-cash proceeds of "Annual Available JV Basket Amount" a Disposition that was made pursuant to and "Aggregate Available JV Basket Amount") or cause such Joint Venture to achieve certain levels of operating resultsin compliance with Section 7.5 hereof; (ix) any Investments received (a) in satisfaction of judgments or in compromise of obligations of trade creditors or customers that were incurred in the Ordinary Course of Business, including pursuant to any plan of reorganization or similar arrangement upon the bankruptcy or insolvency of any trade creditor or customer or (b) as a result of a foreclosure by the Parent and Borrower or any of its Subsidiaries may own the Capital Stock of their respective Subsidiaries created or acquired with respect to any secured Investment in accordance with the terms of this Agreement (so long as all amounts invested in such Subsidiaries are independently justified under another provision of this Section 9.7(b))default; (x) to the Issuer extent constituting an Investment, Investments in Swap Contracts permitted under Section 7.13; (i) so long as the applicable Payment Conditions are satisfied after giving effect thereto, the Parent Borrower may make intercompany loans and advances other Restricted Payments (other than Investments). Furthermore, for the avoidance of doubt, payments made (i) for the purpose of matching contributions of employees’ 401(k) Plan contributions (including payments made to any third-parties for the purpose of its Whollypermitting such third-owned Subsidiaries that is a Guarantor (collectively, "Intercompany Loans"), (xi) parties to acquire Equity Interests of the Parent may make cash equity contributions Borrower to be delivered to employees for the purpose of such contributions) and (ii) pursuant to the Issuer Parent Borrower’s Long-Term Incentive Plan, as amended and the Issuer may make cash equity contributions to any of its direct Wholly-owned Subsidiaries that is a Guarantor; and (xii) the Parent may contribute the Development Assets to the Issuer pursuant to Section 9.4(d)restated, shall not be considered Restricted Payments.

Restricted Payments and Investments. (a) The Credit Parties No Related Person will notincur ----------------------------------- any Liability to make any Investment in any Restricted Subsidiary which is obligated for Non-Recourse Indebtedness. No Related Person will make any Investment in any Restricted Subsidiary which is obligated for Non-Recourse Indebtedness at any time when, directly either immediately before or indirectlyafter giving effect to such Investment, any Borrowing Base Deficiency, Default under Section 5.2, or Event of Default would exist. No Related Person will declare, make or incur any Liability to make any Restricted PaymentPayment or any Restricted Investment (including the sale, exceptissuance or entering into of any Allowed Put), unless both immediately before and after giving effect to such action: (i) the declaration and payment of dividends and distributions by a Wholly-owned Subsidiary of any Credit Party on its Capital Stock to such Credit Party (other than the Parent); (ii) Restricted Payments made on or about the Closing Date pursuant to the Transaction Documents; (iii) the Issuer may distribute the Development Assets to the Parent on the Closing Date; (iv) Issuer may pay cash dividends to the Parentno Borrowing Base Deficiency, so long as (x) there shall exist no Default under Section 5.2, or Event of Default (both before and immediately after giving effect to the payment thereof)would exist, (y) the proceeds thereof are promptly used by Parent to pay operating expenses and other similar corporate overhead costs and expenses (but excluding in any event any costs, expenses, or losses relating to Development Assets) and (z) the aggregate amount of dividends paid by the Issuer in any fiscal year of Parent pursuant to this clause (iv) does not exceed $100,000; (v) the Issuer may pay cash dividends to the Parent in the amounts and at the times of any payment by the Parent in respect of taxes, provided that (x) the amount of cash dividends paid pursuant to this clause (v) to enable the Parent to pay federal income taxes at any time shall not exceed the lesser of (1) the amount of such federal income taxes owing by the Parent at such time for the respective period and (2) the amount of such federal income taxes owing by the Issuer and its Subsidiaries on a consolidated basis for such period if determined without regard to the Parent's ownership of the Issuer and (y) any refunds shall promptly be returned by the Parent to the Issuer; (vi) the Parent may pay regularly accruing dividends with respect to Seller Preferred Stock through the issuance of additional shares of Seller Preferred Stock (but not in cash) in accordance with the terms of the documentation governing the same; (vii) the Parent may pay regularly accruing dividends with respect to the Series A Preferred Stock through an increase in the aggregate liquidation preference of the outstanding Series A Preferred Stock by the amount of the accumulated dividends thereunder (but not in cash) in accordance with the terms of the Series A Preferred Stock Documents; and (viii) any Subsidiary of the Issuer that is not a Wholly-owned Subsidiary may pay cash dividends to its shareholders or partners generally, so long as the Issuer or its respective Subsidiary which owns the equity interest or interests in the Subsidiary paying such dividends receives at least its proportionate share thereof (based upon its relative holdings of equity interests in the Subsidiary paying such dividends and taking into account the relative preferences, if any, of the various classes of equity interests in such Subsidiary or the terms of any agreements applicable thereto). (b) The Credit Parties will not make or maintain any Investments, except that (i) the Credit Parties may make Permitted Investments; (ii) the Issuer and its Subsidiaries may acquire and hold receivables owing to any sum of them, if created or acquired in the ordinary course of business and payable or dischargeable in accordance with customary terms; (iii) the Issuer may enter into Interest Rate Protection or Other Hedging Agreements to the extent such is entered into to satisfy the requirements of Section 7.11 of the Senior Loan Agreement (as in effect on the date hereof); (iv) the Stock Purchases shall be permitted, so long as same are consummated in accordance with the relevant requirements of Section 5.10; (v) the Issuer and its Subsidiaries may endorse negotiable instruments for collection in the ordinary course of business; (vi) the Issuer and its Subsidiaries may make loans and advances in the ordinary course of business consistent with past practices to their respective employees for moving, travel and emergency expenses and other similar expenses, so long as the aggregate principal amount thereof at any one time outstanding (determined without regard to any write-downs or write-offs of such loans and advances) shall not exceed $750,000; (vii) the Issuer and its Subsidiaries may effect Permitted Acquisitions (including Start-Up Costs) in accordance with the requirements of Section 8.12; (viii) the Issuer and/or any of its Wholly-Owned Subsidiaries shall be permitted to make Investments in any Joint Venture on any date, so long as (x) the aggregate amount of Restricted Investments (valued immediately after such Investments does action), plus the aggregate amount of Restricted Payments of the Related Persons declared or made during the period commencing on April 1, 2000, and ending on the date such Restricted Payment or Restricted Investment is declared or made, inclusive, would not exceed the Annual Available JV Basket Amount sum of (1) $25,000,000, plus (2) fifty percent (50%) of Adjusted Net Income for such period (or minus 100% of Adjusted Net Income for such period if Adjusted Net Income for such period is a loss), plus (3) fifty percent (50%) of the aggregate proceeds (whether or not in effect cash, but net of transaction costs) received during such period from sales, exchanges, conversions or other issuances of Equity Interests of any kind, including Permitted Preferred Trust Securities (but excluding any proceeds of any issuance of new Permitted Preferred Trust Securities concurrently used to purchase, redeem, acquire or retire the TECONS or other then-outstanding Permitted Preferred Trust Securities), by Borrower or any of its Restricted Subsidiaries (other than from issuances to each other which are permitted hereunder), plus (4) the aggregate net cash proceeds received during such period by the Related Persons, after elimination of inter-company transactions between themselves, constituting a return of capital from any Restricted Investment Notwithstanding the foregoing subsection (ii), Borrower may make the following Restricted Payments and Restricted Investments (which will nonetheless be included in all calculations thereafter made under such subsection (ii)): (A) the payment of any dividend on any other capital stock of any Related Person within 60 days after the date of declaration thereof, if at such declaration date such declaration complied with the foregoing subsections (i) and (ii) (and such payment shall be deemed to have been paid on such date or of declaration for purposes of any calculation required by the Aggregate Available JV Basket Amount in effect on such date (in each case, after giving effect to all prior and contemporaneous adjustments thereto, except as a result provisions of such Investment), subsection (y) no Default or Event of Default exists or would exist immediately after giving effect to the respective Investment and (z) neither the Issuer nor any of its Subsidiaries has any obligation to (A) subscribe for additional equity interests in such Joint Venture or (B) maintain or preserve such Joint Venture's financial condition (except for any guaranty by Parent or any if its Subsidiaries of obligations of such Joint Venture included in clause (iii) of the definitions of "Annual Available JV Basket Amount" and "Aggregate Available JV Basket Amount") or cause such Joint Venture to achieve certain levels of operating results; (ix) the Parent and its Subsidiaries may own the Capital Stock of their respective Subsidiaries created or acquired in accordance with the terms of this Agreement (so long as all amounts invested in such Subsidiaries are independently justified under another provision of this Section 9.7(bii)); (x) the Issuer may make intercompany loans and advances to any of its Wholly-owned Subsidiaries that is a Guarantor (collectively, "Intercompany Loans"), (xi) the Parent may make cash equity contributions to the Issuer and the Issuer may make cash equity contributions to any of its direct Wholly-owned Subsidiaries that is a Guarantor; and (xii) the Parent may contribute the Development Assets to the Issuer pursuant to Section 9.4(d).

Restricted Payments and Investments. (a) The Credit Parties will notNo Obligor shall, directly or indirectly, (a) make any Restricted PaymentInvestment other than a Permitted Investment or (b) declare or pay any dividend (other than dividends payable solely in common stock of a such Obligor) on, except: or make any payment on account of, or set apart assets for a sinking or other analogous fund for, the purchase, redemption, defeasance, retirement or other acquisition of, any shares of any class of capital stock of any Obligor or any warrants, options or rights to purchase any such capital stock, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of a Credit Party or any of its Subsidiaries (each a "RESTRICTED PAYMENT"); provided, however, that, to the -------- ------- extent permitted by applicable law: (i) the declaration and payment of dividends and distributions by a Wholly-owned any Subsidiary of an Issuer may make Restricted Payments to any Credit Party on its Capital Stock to such Credit Party (other than of the Parent); Issuers; and (ii) Restricted Payments made on or about the Closing Date pursuant to the Transaction Documents; (iii) the Issuer may distribute the Development Assets to the Parent on the Closing Date; (iv) Issuer may pay cash dividends to the Parent, so long as (x) there shall exist no Default or Event of Default (both before and then exists or would otherwise result therefrom, Obligors may make a Restricted Payment if immediately after giving effect to the payment thereof)such Restricted Payment, (y) the proceeds thereof are promptly used by Parent to pay operating expenses and other similar corporate overhead costs and expenses (but excluding in any event any costs, expenses, or losses relating to Development Assets) and (z) the aggregate amount of dividends paid all Restricted Payments expended subsequent to the date hereof (the amount so expended, if other than in cash, to be valued at its fair market value as determined by the Issuer Board of Directors of the Company, whose determination in any fiscal year of Parent pursuant to this clause (ivgood faith and evidenced by a board resolution shall be conclusive) does not exceed $100,000; (v) the Issuer may pay cash dividends an amount equal to the Parent in the amounts and at the times of any payment by the Parent in respect of taxes, provided that (x) the amount of cash dividends paid pursuant to this clause (v) to enable the Parent to pay federal income taxes at any time shall not exceed the lesser sum of (1A) fifty percent (50%) of the amount aggregate Consolidated Net Income of such federal income taxes owing by the Parent at such time for the respective period and (2) the amount of such federal income taxes owing by the Issuer Company and its Subsidiaries (or if such Consolidated Net Income shall be a loss, minus such loss) during the period (treated as one accounting period) subsequent to December 31, 1996 and ending on a consolidated basis for such period if determined without regard to the Parent's ownership last day of the Issuer and (y) any refunds shall promptly be returned by the Parent to the Issuer; (vi) the Parent may pay regularly accruing dividends with respect to Seller Preferred Stock through the issuance of additional shares of Seller Preferred Stock (but not in cash) in accordance with the terms of the documentation governing the same; (vii) the Parent may pay regularly accruing dividends with respect to the Series A Preferred Stock through an increase in the aggregate liquidation preference of the outstanding Series A Preferred Stock by the amount of the accumulated dividends thereunder (but not in cash) in accordance with the terms of the Series A Preferred Stock Documents; and (viii) any Subsidiary of the Issuer that is not a Wholly-owned Subsidiary may pay cash dividends to its shareholders or partners generally, so long as the Issuer or its respective Subsidiary which owns the equity interest or interests in the Subsidiary paying such dividends receives at least its proportionate share thereof (based upon its relative holdings of equity interests in the Subsidiary paying such dividends and taking into account the relative preferences, if any, of the various classes of equity interests in such Subsidiary or the terms of any agreements applicable thereto). (b) The Credit Parties will not make or maintain any Investments, except that (i) the Credit Parties may make Permitted Investments; (ii) the Issuer and its Subsidiaries may acquire and hold receivables owing to any of them, if created or acquired in the ordinary course of business and payable or dischargeable in accordance with customary terms; (iii) the Issuer may enter into Interest Rate Protection or Other Hedging Agreements to the extent such is entered into to satisfy the requirements of Section 7.11 of the Senior Loan Agreement (as in effect on fiscal quarter immediately preceding the date hereof); (iv) the Stock Purchases shall be permitted, so long as same are consummated in accordance with the relevant requirements of Section 5.10; (v) the Issuer and its Subsidiaries may endorse negotiable instruments for collection in the ordinary course of business; (vi) the Issuer and its Subsidiaries may make loans and advances in the ordinary course of business consistent with past practices to their respective employees for moving, travel and emergency expenses and other similar expenses, so long as the aggregate principal amount thereof at any one time outstanding (determined without regard to any write-downs or write-offs of such loans and advances) shall not exceed $750,000; Restricted Payment, plus (vii) the Issuer and its Subsidiaries may effect Permitted Acquisitions (including Start-Up Costs) in accordance with the requirements of Section 8.12; (viii) the Issuer and/or any of its Wholly-Owned Subsidiaries shall be permitted to make Investments in any Joint Venture on any date, so long as (xB) the aggregate amount net ---- proceeds, including cash and the fair market value of such Investments does not exceed property other than cash (as determined in good faith by the Annual Available JV Basket Amount in effect on such date Board of Directors of the Company or the Aggregate Available JV Basket Amount in effect on such date applicable Subsidiary, whose determination will be conclusive and evidenced by a board resolution), received by the Company or its Subsidiary from any Person (in each case, after giving effect to all prior and contemporaneous adjustments thereto, except other than from the Company or another Subsidiary) as a result of the issuance or sale of stock of the Company, including any net proceeds received upon exercise of any rights, options or warrants, other than in connection with the conversion or exchange of any Indebtedness of the Company or such InvestmentSubsidiary during such period, plus (C) fifty percent (50%) of the aggregate net proceeds, ---- including cash and the fair market value of property other than cash (as determined in good faith by the Board of Directors of the Company or the applicable Subsidiary, whose determination will be conclusive and evidenced by a board resolution), received by the Company or its Subsidiary during such period from any Person (yother than from the Company or another Subsidiary) as a result of the issuance or sale of any Indebtedness during such period. For purposes of any calculation pursuant to the preceding sentence that is required to be made within 60 days after the declaration of a dividend by the Company, such dividend shall be deemed to be paid at the date of declaration. Notwithstanding the foregoing, the above limitation shall not prevent (a) the consummation of the Acquisition; (b) any adjustment required under Section 3.1 of the Asset Purchase Agreement dated December 31, 1996 between the Company and Xxxxxxx Drilling Company; (c) the payment of any dividend within 60 days after the date of its declaration if at the time of declaration the payment would have complied with this Section 7.04; (d) the purchase, redemption, ------------ acquisition or retirement of any shares of capital stock of the Company in exchange for, or out of the net proceeds of the substantially concurrent sale (other than to a Subsidiary) of, other shares of stock of the Company; (e) the purchase, redemption, defeasance or other acquisition or retirement of Indebtedness of the Company which is subordinate in right of payment to the Notes, in exchange for, by conversion into, or out of the net proceeds of the substantially concurrent issue or sale (other than to a Subsidiary) of stock of the Company; (f) purchases of common stock by the Company or a trust pursuant to any employee stock ownership or similar employee benefit plan of the Company that has been approved by the Board of Directors of the Company; or (g) payment of the redemption price not in excess of $.02 per right and an aggregate price not in excess of $300,000 with respect to any stockholders rights plan; provided, that no Default or Event of Default exists shall have occurred and be -------- continuing at the time, or would exist immediately after giving effect shall occur as a result, of any of the actions contemplated in clauses (c), (d) and (e) above; and provided, further, that the -------- ------- full amount of any such payment, purchase, redemption, acquisition or retirement pursuant to the respective Investment and (z) neither foregoing clauses shall be counted in the Issuer nor any calculation of its Subsidiaries has any obligation the aggregate amount of Restricted Payments expended pursuant to (A) subscribe for additional equity interests in such Joint Venture or (B) maintain or preserve such Joint Venture's financial condition (except for any guaranty by Parent or any if its Subsidiaries of obligations of such Joint Venture included in clause (iiiii) of in the definitions of "Annual Available JV Basket Amount" and "Aggregate Available JV Basket Amount") or cause such Joint Venture to achieve certain levels of operating results; (ix) the Parent and its Subsidiaries may own the Capital Stock of their respective Subsidiaries created or acquired in accordance with the terms of this Agreement (so long as all amounts invested in such Subsidiaries are independently justified under another provision of this Section 9.7(b)); (x) the Issuer may make intercompany loans and advances to any of its Wholly-owned Subsidiaries that is a Guarantor (collectively, "Intercompany Loans"), (xi) the Parent may make cash equity contributions to the Issuer and the Issuer may make cash equity contributions to any of its direct Wholly-owned Subsidiaries that is a Guarantor; and (xii) the Parent may contribute the Development Assets to the Issuer pursuant to Section 9.4(d)immediately preceding paragraph.