Common use of Restricted Payments and Investments Clause in Contracts

Restricted Payments and Investments. No Related Person will incur 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, either immediately before or after 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 Payment or any Restricted Investment (including the sale, issuance or entering into of any Allowed Put), unless both immediately before and after giving effect to such action: (i) no Borrowing Base Deficiency, Default under Section 5.2, or Event of Default would exist, and (ii) the sum of the aggregate amount of Restricted Investments (valued immediately after such action), plus the aggregate amount of Restricted Payments of the Related Persons declared or made during the period commencing on January 1, 1996, and ending on the date such Restricted Payment or Restricted Investment is declared or made, inclusive, would not exceed the sum of (1) $10,000,000, plus (2) 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) twenty-five percent (25%) of the aggregate proceeds (whether or not in cash, but net of transaction costs) in excess of $130,000,000 received after December 31, 1995 and prior to January 1, 1998 from sales, exchanges, conversions or other issuances of Equity Interests of any kind, including the TECONS and other 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) fifty percent (50%) of the aggregate proceeds (whether or not in cash, but net of transaction costs) received on or after January 1, 1998 and through the end of such period from sales, exchanges, conversions or other issuances of Equity Interests of any kind, including Permitted Preferred Trust Securities, by Borrower or any of its Restricted Subsidiaries (other than from issuances to each other which are permitted hereunder), plus (5) 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 of declaration for purposes of any calculation required by the provisions of such subsection (ii)).

Restricted Payments and Investments. No Related Person will incur (i) Declare or pay any Liability 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 Investment change in market value of any such Equity Interests (collectively, “Restricted Payments”) or (ii) make or permit to exist any Investments (including by way of Division), except 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 obligated for Non-Recourse Indebtedness. No Related Person will a Loan Party or a Subsidiary of a Loan Party; (b) (i) the Parent Borrower may make any Investment Restricted Payments in any Restricted Subsidiary which is obligated for Non-Recourse Indebtedness at any time whenthe form of Equity Interests (other than Disqualified Stock) of the Parent Borrower and (ii) the Parent Borrower may make cash payments in lieu of the issuance of fractional shares; provided that, either with respect to a transaction under this Section 7.06(b)(ii), (A) no Default or Event of Default shall have occurred and be continuing prior to or immediately before or after giving effect to any such Investmentcash payments and (B) immediately upon consummation of any cash payments for fractional shares, any Borrowing Base Deficiency, Default under Section 5.2, or such fractional shares must be retired; (c) [reserved]; (d) so long as no Event of Default has occurred and is continuing or would exist. No Related Person will declarebe caused thereby, make the Parent Borrower or incur any Liability Subsidiary may repurchase, redeem, or otherwise acquire or retire any Equity Interests of the Parent Borrower or any 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 any Restricted Investment in an amount not to exceed, the net cash proceeds of a substantially concurrent sale (including other than to a Subsidiary of the saleParent Borrower) of, issuance or entering into Equity Interests of any Allowed Putthe Parent Borrower (other than Disqualified Stock), unless both 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 such action:any Restricted Payment under this Section 7.6(f), Liquidity is not less than $25,000,000; (i) no Borrowing Base Deficiency, Default under Section 5.2, or Event of Default would exist, and (iig) the sum of the aggregate amount of Restricted Investments (valued immediately after such action), plus the aggregate amount of Restricted Payments of the Related Persons declared or made during the period commencing on January 1, 1996, and ending on the date such Restricted Payment or Restricted Investment is declared or made, inclusive, would not exceed the sum of (1) $10,000,000, plus (2) 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) twenty-five percent (25%) of the aggregate proceeds (whether or not in cash, but net of transaction costs) in excess of $130,000,000 received after December 31, 1995 and prior to January 1, 1998 from sales, exchanges, conversions or other issuances of Equity Interests of any kind, including the TECONS and other 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) fifty percent (50%) of the aggregate proceeds (whether or not in cash, but net of transaction costs) received on or after January 1, 1998 and through the end of such period from sales, exchanges, conversions or other issuances of Equity Interests of any kind, including Permitted Preferred Trust Securities, by Borrower or any of its Restricted Subsidiaries (other than from issuances to each other which are permitted hereunder), plus (5) 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), Parent 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 or consummate any other capital stock of any Related Person irrevocable redemption permitted under Section 7.6(i) within 60 days after the date of declaration thereofof the dividend or the giving of the redemption notice, as the case may be, if at such the date of declaration date such declaration or notice, the dividend or redemption payment would have complied with the foregoing subsections 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) Investments by the Parent Borrower and its Subsidiaries in their respective Subsidiaries outstanding on the date hereof, (B) additional Investments by the Parent Borrower and its Subsidiaries in Loan Parties, (C) additional Investments by Subsidiaries of 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 Investment or would exist after giving effect thereto, additional Investments by the Loan Parties in Subsidiaries that are not Loan Parties in an aggregate amount not to exceed $10,000,000; (iv) 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 non-cash proceeds of a Disposition that was made pursuant to and in 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 Borrower or any of its Subsidiaries with respect to any secured Investment in default; (x) to the 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 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 third- parties for the purpose of permitting such third-parties to acquire Equity Interests of the Parent Borrower to be delivered to employees for the purpose of such contributions) and (ii) (pursuant to the Parent Borrower’s Long-Term Incentive Plan, as amended and such payment restated, shall not be deemed to have been paid on such date of declaration for purposes of any calculation required by the provisions of such subsection (ii))considered Restricted Payments.

Restricted Payments and Investments. No Related Person will incur ----------------------------------- 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, either immediately before or after 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 Payment or any Restricted Investment (including the sale, issuance or entering into of any Allowed Put), unless both immediately before and after giving effect to such action: (i) no Borrowing Base Deficiency, Default under Section 5.2, or Event of Default would exist, and (ii) the sum of the aggregate amount of Restricted Investments (valued immediately after such action), plus the aggregate amount of Restricted Payments of the Related Persons declared or made during the period commencing on January April 1, 19962000, and ending on the date such Restricted Payment or Restricted Investment is declared or made, inclusive, would not exceed the sum of (1) $10,000,00025,000,000, 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) twenty-five fifty percent (2550%) of the aggregate proceeds (whether or not in cash, but net of transaction costs) in excess of $130,000,000 received after December 31, 1995 and prior to January 1, 1998 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 and 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) fifty percent (50%) of the aggregate proceeds (whether or not in cash, but net of transaction costs) received on or after January 1, 1998 and through the end of such period from sales, exchanges, conversions or other issuances of Equity Interests of any kind, including Permitted Preferred Trust Securities, by Borrower or any of its Restricted Subsidiaries (other than from issuances to each other which are permitted hereunder), plus (5) 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 of declaration for purposes of any calculation required by the provisions of such subsection (ii)).

Restricted Payments and Investments. No Related Person will incur (i) Declare or pay any Liability 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 Investment change in market value of any such Equity Interests (collectively, “Restricted Payments”) or (ii) make or permit to exist any Investments (including by way of Division), except 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 obligated for Non-Recourse Indebtedness. No Related Person will a Loan Party or a Subsidiary of a Loan Party; (b) (i) the Parent Borrower may make any Investment Restricted Payments in any Restricted Subsidiary which is obligated for Non-Recourse Indebtedness at any time whenthe form of Equity Interests (other than Disqualified Stock) of the Parent Borrower and (ii) the Parent Borrower may make cash payments in lieu of the issuance of fractional shares; provided that, either with respect to a transaction under this Section 7.06(b)(ii), (A) no Default or Event of Default shall have occurred and be continuing prior to or immediately before or after giving effect to any such Investmentcash payments and (B) immediately upon consummation of any cash payments for fractional shares, any Borrowing Base Deficiency, Default under Section 5.2, or such fractional shares must be retired; (c) Restricted Payments required to consummate the Specified Permitted Reorganization; (d) so long as no Event of Default has occurred and is continuing or would exist. No Related Person will declarebe caused thereby, make the Parent Borrower or incur any Liability Subsidiary may repurchase, redeem, or otherwise acquire or retire any Equity Interests of the Parent Borrower or any 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 any Restricted Investment in an amount not to exceed, the net cash proceeds of a substantially concurrent sale (including other than to a Subsidiary of the saleParent Borrower) of, issuance or entering into Equity Interests of any Allowed Putthe Parent Borrower (other than Disqualified Stock), unless both 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 such action:any Restricted Payment under this Section 7.6(f), the Parent Borrower is in compliance with Section 7.2; (i) no Borrowing Base Deficiency, Default under Section 5.2, or Event of Default would exist, and (iig) the sum of the aggregate amount of Restricted Investments (valued immediately after such action), plus the aggregate amount of Restricted Payments of the Related Persons declared or made during the period commencing on January 1, 1996, and ending on the date such Restricted Payment or Restricted Investment is declared or made, inclusive, would not exceed the sum of (1) $10,000,000, plus (2) 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) twenty-five percent (25%) of the aggregate proceeds (whether or not in cash, but net of transaction costs) in excess of $130,000,000 received after December 31, 1995 and prior to January 1, 1998 from sales, exchanges, conversions or other issuances of Equity Interests of any kind, including the TECONS and other 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) fifty percent (50%) of the aggregate proceeds (whether or not in cash, but net of transaction costs) received on or after January 1, 1998 and through the end of such period from sales, exchanges, conversions or other issuances of Equity Interests of any kind, including Permitted Preferred Trust Securities, by Borrower or any of its Restricted Subsidiaries (other than from issuances to each other which are permitted hereunder), plus (5) 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), Parent 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 or consummate any other capital stock of any Related Person irrevocable redemption permitted under Section 7.6(i) within 60 days after the date of declaration thereofof the dividend or the giving of the redemption notice, as the case may be, if at such the date of declaration date such declaration or notice, the dividend or redemption payment would have complied with the foregoing subsections 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) Investments by the Parent Borrower and its Subsidiaries in their respective Subsidiaries outstanding on the date hereof, (B) additional Investments by the Parent Borrower and its Subsidiaries in Loan Parties, (C) additional Investments by Subsidiaries of 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 Investment or would exist after giving effect thereto, additional Investments by the Loan Parties in Subsidiaries that are not Loan Parties in an aggregate amount not to exceed $10,000,000; (iv) 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 non-cash proceeds of a Disposition that was made pursuant to and in 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 Borrower or any of its Subsidiaries with respect to any secured Investment in default; (x) to the 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 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 third-parties for the purpose of permitting such third-parties to acquire Equity Interests of the Parent Borrower to be delivered to employees for the purpose of such contributions) and (ii) (pursuant to the Parent Borrower’s Long-Term Incentive Plan, as amended and such payment restated, shall not be deemed to have been paid on such date of declaration for purposes of any calculation required by the provisions of such subsection (ii))considered Restricted Payments.

Restricted Payments and Investments. No Related Person will incur 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, either immediately before or after 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 Payment or any Restricted Investment (including the sale, issuance or entering into of any Allowed Put), unless both immediately before and after giving effect to such action: (i) no Borrowing Base Deficiency, Default under Section 5.2, or Event of Default would exist, and (ii) the sum of the aggregate amount of Restricted Investments (valued immediately after such action), plus the aggregate amount of Restricted Payments of the Related Persons declared or made during the period commencing on January 1, 1996, and ending on the date such Restricted Payment or Restricted Investment is declared or made, inclusive, would not exceed the sum of (1) $10,000,000, plus (2) 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) twenty-five percent (25%) of the aggregate proceeds (whether or not in cash, but net of transaction costs) in excess of $130,000,000 received after December 31, 1995 and prior to January 1, 1998 from sales, exchanges, conversions or other issuances of Equity Interests of any kind, including the TECONS and other 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) fifty percent (50%) of the aggregate proceeds (whether or not in cash, but net of transaction costs) received on or after January 1, 1998 and through the end of such period from sales, exchanges, conversions or other issuances of Equity Interests of any kind, including Permitted Preferred Trust Securities, by Borrower or any of its Restricted Subsidiaries (other than from issuances to each other which are permitted hereunder), plus (5) 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) so long as no Default under Section 5.2 or Event of Default has occurred and is continuing, quarterly dividends of not more than $17.50 per share on Borrower's 7% Cumulative Convertible Preferred Stock which is outstanding as of the date hereof. (B) 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 of declaration for purposes of any calculation required by the provisions of such subsection (ii)). (C) so long as no Default under Section 5.2 or Event of Default has occurred and is continuing, repurchases or redemptions by Borrower of any shares of its 7% Cumulative Convertible Preferred Stock, but only to the extent that Borrower is required to do so pursuant to Article 10 (as in effect on the date hereof) of the Stock Purchase Agreement dated May 28, 1992 between Borrower and The 1818 Fund, L.P.

Restricted Payments and Investments. No Related Person will incur (i) Declare or pay any Liability 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 Investment change in market value of any such Equity Interests (collectively, “Restricted Payments”) or (ii) make or permit to exist any Investments (including by way of Division), except 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 obligated for Non-Recourse Indebtedness. No Related Person will a Loan Party or a Subsidiary of a Loan Party; (b) (i) the Parent Borrower may make any Investment Restricted Payments in any Restricted Subsidiary which is obligated for Non-Recourse Indebtedness at any time whenthe form of Equity Interests (other than Disqualified Stock) of the Parent Borrower and (ii) the Parent Borrower may make cash payments in lieu of the issuance of fractional shares; provided that, either with respect to a transaction under this Section 7.06(b)(ii), (A) no Default or Event of Default shall have occurred and be continuing prior to or immediately before or after giving effect to any such Investmentcash payments and (B) immediately upon consummation of any cash payments for fractional shares, any Borrowing Base Deficiency, Default under Section 5.2, or such fractional shares must be retired; (c) [reserved]; (d) so long as no Event of Default has occurred and is continuing or would exist. No Related Person will declarebe caused thereby, make the Parent Borrower or incur any Liability Subsidiary may repurchase, redeem, or otherwise acquire or retire any Equity Interests of the Parent Borrower or any 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 any Restricted Investment in an amount not to exceed, the net cash proceeds of a substantially concurrent sale (including other than to a Subsidiary of the saleParent Borrower) of, issuance or entering into Equity Interests of any Allowed Putthe Parent Borrower (other than Disqualified Stock), unless both 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 such action:any Restricted Payment under this Section 7.6(f), Liquidity is not less than $25,000,000; (i) no Borrowing Base Deficiency, Default under Section 5.2, or Event of Default would exist, and (iig) the sum of the aggregate amount of Restricted Investments (valued immediately after such action), plus the aggregate amount of Restricted Payments of the Related Persons declared or made during the period commencing on January 1, 1996, and ending on the date such Restricted Payment or Restricted Investment is declared or made, inclusive, would not exceed the sum of (1) $10,000,000, plus (2) 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) twenty-five percent (25%) of the aggregate proceeds (whether or not in cash, but net of transaction costs) in excess of $130,000,000 received after December 31, 1995 and prior to January 1, 1998 from sales, exchanges, conversions or other issuances of Equity Interests of any kind, including the TECONS and other 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) fifty percent (50%) of the aggregate proceeds (whether or not in cash, but net of transaction costs) received on or after January 1, 1998 and through the end of such period from sales, exchanges, conversions or other issuances of Equity Interests of any kind, including Permitted Preferred Trust Securities, by Borrower or any of its Restricted Subsidiaries (other than from issuances to each other which are permitted hereunder), plus (5) 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), Parent 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 or consummate any other capital stock of any Related Person irrevocable redemption permitted under Section 7.6(i) within 60 days after the date of declaration thereofof the dividend or the giving of the redemption notice, as the case may be, if at such the date of declaration date such declaration or notice, the dividend or redemption payment would have complied with the foregoing subsections 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) Investments by the Parent Borrower and its Subsidiaries in their respective Subsidiaries outstanding on the date hereof, (B) additional Investments by the Parent Borrower and its Subsidiaries in Loan Parties, (C) additional Investments by Subsidiaries of 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 Investment or would exist after giving effect thereto, additional Investments by the Loan Parties in Subsidiaries that are not Loan Parties in an aggregate amount not to exceed $10,000,000; (iv) 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 non-cash proceeds of a Disposition that was made pursuant to and in 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 Borrower or any of its Subsidiaries with respect to any secured Investment in default; (x) to the 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 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 third-parties for the purpose of permitting such third-parties to acquire Equity Interests of the Parent Borrower to be delivered to employees for the purpose of such contributions) and (ii) (pursuant to the Parent Borrower’s Long-Term Incentive Plan, as amended and such payment restated, shall not be deemed to have been paid on such date of declaration for purposes of any calculation required by the provisions of such subsection (ii))considered Restricted Payments.