Common use of Restricted Payments, etc Clause in Contracts

Restricted Payments, etc. The Borrower will not, and will not permit any of its Subsidiaries to, declare or make a Restricted Payment, or make any deposit for any Restricted Payment, other than: (a) Restricted Payments made by Subsidiaries to the Borrower or wholly-owned Subsidiaries; (b) Restricted Payments made by the Borrower to Parent (i) pursuant to the Tax Sharing Agreement; provided that the amount of such Restricted Payment shall not exceed the amount of taxes that the Borrower would have been liable for on a stand alone basis on a consolidated tax return with its Subsidiaries and (ii) to pay franchise taxes and other overhead expenses of Parent in an amount not to exceed $500,000 in any Fiscal Year; (c) so long as no Default of the type set forth in Section 8.1.1 or any Event of Default has occurred and is continuing, amounts payable to the Sponsors as set forth in the Monitoring Agreement; (d) repurchases of Capital Securities from former employees, directors and officers of Parent and its Subsidiaries in an amount not to exceed $2,000,000 in any Fiscal Year; provided that, to the extent the amount of repurchases permitted to be made in any Fiscal Year pursuant to this clause exceeds the aggregate amount of repurchases actually made by the Borrower and its Subsidiaries during such Fiscal Year, the excess amount may be carried forward to (but only to) the next succeeding Fiscal Year, and any such amount carried forward to a succeeding Fiscal Year shall be deemed to be used following the Borrower and its Subsidiaries using the amount of repurchases permitted by this clause in such succeeding Fiscal Year, without giving effect to such carry-forward; (e) repurchases of Capital Securities deemed to occur upon exercise of stock options if such Capital Securities represents a portion of the exercise price of such options; and (f) Restricted Payments in the manner contemplated by the Merger Agreement, as in effect on the date hereof and as amended in accordance with Section 7.2.12.

Restricted Payments, etc. The Borrower will not, and will not permit any of its Subsidiaries to, declare or make a Restricted Payment, or make any deposit for any Restricted Payment, other than: (a) Restricted Payments made by Subsidiaries to (i) the Borrower Borrower, or wholly-owned to Wholly Owned Subsidiaries or (ii) made proportionately to all holders of Capital Securities, including to KCS Minority Interest Subsidiaries; (b) Restricted Payments dividends or distributions made by the Borrower to Parent (i) pursuant to the Tax Sharing Agreement; provided that the amount payable solely in Capital Securities of such Restricted Payment shall not exceed the amount of taxes that the Borrower would have been liable for on a stand alone basis on a consolidated tax return with its Subsidiaries and (ii) to pay franchise taxes and other overhead expenses of Parent in an amount not to exceed $500,000 in any Fiscal Yearthan Disqualified Stock); (c) so long as no Default the exchange of Capital Securities of the type set forth in Section 8.1.1 or any Event Borrower for other Capital Securities of Default has occurred and is continuing, amounts payable to the Sponsors as set forth in the Monitoring AgreementBorrower (other than Disqualified Stock); (d) repurchases of Capital Securities from former employees, directors and officers of Parent and its Subsidiaries in an amount not payments or distributions to exceed $2,000,000 in any Fiscal Year; provided that, to the extent the amount of repurchases permitted to be made in any Fiscal Year dissenting stockholders pursuant to this clause exceeds applicable law or in connection with the aggregate amount settlement or other satisfaction of repurchases actually legal claims made pursuant to or in connection with a consolidation, merger or transfer of assets permitted by the Borrower and its Subsidiaries during such Fiscal Year, the excess amount may be carried forward to (but only to) the next succeeding Fiscal Year, and any such amount carried forward to a succeeding Fiscal Year shall be deemed to be used following the Borrower and its Subsidiaries using the amount terms of repurchases permitted by this clause in such succeeding Fiscal Year, without giving effect to such carry-forwardAgreement; (e) repurchases of Capital Securities deemed to occur upon exercise of stock options if such Capital Securities represents a portion cash payments in lieu of the exercise price issuance of such optionsfractional shares; and (f) Restricted Payments in the manner contemplated by the Merger AgreementBorrower to its shareholders for any Fiscal Quarter of the Borrower commencing after June 30, as in effect 2010; provided, that (i) the amount of such Restricted Payments shall not exceed an aggregate amount equal to (A) $50,000,000 plus (1) 50% of Net Income accrued on a cumulative basis during the period (deemed for purposes of this Section to be one accounting period) commencing on January 1, 2010 and ending on the last day of the Fiscal Quarter immediately preceding the date hereof of declaration of such Restricted Payment (or, if such Net Income shall be a deficit, minus 100% of such deficit) (the “Restricted Payment Accrual Termination Date”) plus (2) an amount equal to the Dollar equivalent of total cash contributions to the equity capital of Borrower after the Effective Date resulting from the proceeds of a private placement or a public issuance of Capital Securities (other than Disqualified Stock) that are not applied to (x) Capital Expenditures, (y) consummate acquisitions, consolidations, mergers or other business combinations by the Borrower or its Subsidiaries or (z) prepayment of any Indebtedness pursuant to clause (a)(iii) of Section 7.2.16, less (B) the aggregate amount of any Restricted Payment declared or distributed during the period beginning on January 1, 2010 and as amended ending on the last day of the Fiscal Quarter immediately preceding any such Restricted Payment Accrual Termination Date; (ii) the Borrower shall have delivered to the Administrative Agent the applicable financial statements for the Fiscal Quarter ending on such Restricted Payment Accrual Termination Date in accordance with Section 7.2.127.1.1; and (iii) as of the time of the making of such dividend or distribution, no Default shall have occurred and be continuing or would result therefrom.

Restricted Payments, etc. The Borrower will notnot declare, and will not pay or make any dividend or distribution (in cash, property or obligations) on any shares or units of any class of Stock (now or hereafter outstanding) of the Borrower or on any warrants, options or other rights in respect of any class of Stock (now or hereafter outstanding) of the Borrower or apply, or permit any Subsidiary to apply, any of its Subsidiaries tofunds, declare property or make a Restricted Paymentassets to the purchase, redemption, sinking fund or other retirement of any shares or units of any class of Stock (now or hereafter outstanding) of the Borrower or any rights, options or warrants to subscribe for or purchase any shares or units of any class of Stock of the Borrower or make any deposit for any Restricted Paymentof the foregoing; provided, other than: (a) Restricted Payments made by Subsidiaries to the Borrower or wholly-owned Subsidiaries; (b) Restricted Payments made by the Borrower to Parent however, that so long as (i) pursuant to the Tax Sharing Agreement; provided that the amount of such Restricted Payment shall not exceed the amount of taxes that the Borrower would have been liable for on a stand alone basis on a consolidated tax return with its Subsidiaries and (ii) to pay franchise taxes and other overhead expenses of Parent in an amount not to exceed $500,000 in any Fiscal Year; (c) so long as no Default of the type set forth in Section 8.1.1 or any Event of Default has occurred and is continuing, amounts payable (ii) the Borrower is in compliance with all financial covenants as determined on a pro forma basis after giving effect to such distributions, and (iii) after giving effect to such distribution, the Borrower’s Liquidity is not less than $3,000,000, then (A) so long as the Borrower is a Pass-Through Entity and the direct or indirect owners of its Stock are directly responsible for the payment of taxes on income of the Borrower (such direct or indirect owners of the Borrower’s stock responsible for the payment of such taxes, the “Borrower’s Tax-Paying Entities”), the Borrower may make distributions from time to time to the Sponsors as set forth owners of its Stock (for subsequent distribution in the Monitoring Agreement; (devent that such owners of the Borrower’s stock are not Borrower’s Tax-Paying Entities) repurchases of Capital Securities from former employees, directors and officers of Parent and its Subsidiaries in an amount up to the lesser of (x) the “Tax Distributions” as described in Section 5.6 of the Parent Guarantor’s LLC Agreement, (y) the estimated income tax liability of the Borrower’s Tax-Paying Entities with respect to the income of the Borrower (calculated based on a tax rate equal to the highest effective marginal combined federal, state and local income tax rate of an assumed taxpayer paying taxes in the jurisdictions(s) in which the Borrower’s Tax-Paying Entities are taxable (as reported by the Borrower to the Agent each year and consistent with any applicable provisions of the Borrower’s Organizational Documents) taking into account the deductibility of state and local income taxes for federal income tax purposes) arising solely as a result of the net income of the Borrower attributable to the Borrower’s Tax-Paying Entities, and (z) forty-one percent (41%) of the adjusted taxable income of the Borrower with respect to which the Borrower’s Tax-Paying Entities are responsible for paying income taxes (such distributions, “Permitted Tax Distributions”), provided that such distributions are made quarterly not more than five (5) Business Days prior to the deadline for such owners of Stock to file their quarterly estimated income tax returns with the Internal Revenue Service, and (B) on or after the Project Completion Date the Borrower may make distributions to the owners of its Stock, solely from amounts on deposit in the Cost Overrun Account, in an aggregate amount not to exceed $2,000,000 the amount by which the amount on deposit in any Fiscal Year; provided that, to the extent Cost Overrun Account on the Project Construction Completion Date exceeds the sum of (i) the amount of repurchases permitted all obligations owed with respect to be made in any Fiscal Year pursuant Construction Expenses which have not yet been paid, and (ii) an amount equal to this clause exceeds the aggregate amount of repurchases actually made Borrower’s reasonable estimate as approved by the Borrower and its Subsidiaries during such Fiscal Year, the excess amount may be carried forward to (but only to) the next succeeding Fiscal Year, and any such amount carried forward to a succeeding Fiscal Year shall be deemed to be used following the Borrower and its Subsidiaries using the amount of repurchases permitted by this clause in such succeeding Fiscal Year, without giving effect to such carry-forward; (e) repurchases of Capital Securities deemed to occur upon exercise of stock options if such Capital Securities represents a portion Independent Engineer of the exercise price of such options; and (f) Restricted Payments in costs to complete the manner contemplated by the Merger Agreement, as in effect items described on the date hereof and as amended in accordance with Section 7.2.12Punch List Certificate.

Restricted Payments, etc. The Holdings and the Borrower will not, and will not permit any of its their respective Subsidiaries to, declare or make a Restricted Payment, or make any deposit for any Restricted Payment, other thanexcept: (a) the Borrower may make Restricted Payments made to Holdings for the purpose of paying, so long as all proceeds are promptly used by Subsidiaries Holdings to pay, (i) reasonable fees for audit, legal and similar administrative services and other corporate overhead, (ii) customary fees to non-officer directors of Holdings who are not Affiliates of Holdings, (iii) out-of-pocket expenses to directors or observers of the Borrower or wholly-owned Subsidiariesboard of directors of Holdings and (iv) taxes payable by Holdings; (b) so long as at the time of such purchase (and after giving effect thereto) there shall exist no Default, Holdings may (and the Borrower may make Restricted Payments made by the Borrower to Parent Holdings to permit Holdings to) repurchase Management Shares from any Management Investor (i) pursuant with proceeds of the key-man life insurance maintained on the life of such Management Investor and (ii) with cash in an aggregate amount not exceeding $2,500,000 per year up to a maximum aggregate amount equal to $10,000,000 over the Tax Sharing term of this Agreement; provided that to the extent the amount of cash used to make such Restricted Payment shall not exceed the repurchases in any Fiscal Year is less than $2,500,000, 100% of such unused amount may be carried forward to succeeding Fiscal Years and utilized to make such repurchases in such succeeding Fiscal Years; (i) any Subsidiary of taxes that the Borrower would have been liable for on a stand alone basis on a consolidated tax return with its Subsidiaries may make Restricted Payments to the Borrower or any Subsidiary Guarantor and (ii) any non-wholly-owned Subsidiary of the Borrower may make Restricted Payments to pay franchise taxes and other overhead expenses its shareholders generally so long as the Borrower or its Subsidiary which owns the equity interest in the Subsidiary making such Restricted Payment receives at least its proportionate share thereof (based upon its relative holding of Parent the equity interests in an amount not to exceed $500,000 in any Fiscal Yearthe Subsidiary making such Restricted Payment); (cd) so long as no Default of then exists or would result therefrom, the type set forth in Section 8.1.1 or any Event of Default has occurred Borrower may make Restricted Payments to Holdings at the times, and is continuing, amounts payable to the Sponsors as set forth in the Monitoring Agreement; (d) repurchases amounts, necessary to enable Holdings to make any regularly scheduled interest or principal payments that are due and payable on any Permitted Seller Notes or in respect of Capital Securities from former employees, directors and officers of Parent and its Subsidiaries in an amount not to exceed $2,000,000 in any Fiscal Year; provided that, Qualifying Subordinated Debt to the extent the amount of repurchases that such payments are permitted to be made in any Fiscal Year pursuant to this clause exceeds the aggregate amount of repurchases actually made by the Borrower and its Subsidiaries during such Fiscal Year, the excess amount may be carried forward to (but only to) the next succeeding Fiscal Year, and any such amount carried forward to a succeeding Fiscal Year shall be deemed to be used following the Borrower and its Subsidiaries using the amount of repurchases permitted by this clause in such succeeding Fiscal Year, without giving effect to such carry-forwardSection 7.2.8; (e) repurchases of Capital Securities Stock of Holdings deemed to occur upon the exercise of stock options if such Capital Securities Stock represents a portion of the exercise price thereof and so long as no cash is paid or distributed by Holdings or any of such optionsits Subsidiaries in connection therewith; and (f) Restricted Payments in the manner contemplated by Tender Offer and the Merger Agreement, as in effect on the date hereof and as amended in accordance with Section 7.2.12shall be permitted.

Restricted Payments, etc. The Borrower will not, and will not permit any of its their respective Subsidiaries to, declare or make a Restricted Payment, or make any deposit for any Restricted Payment, other thanexcept: (a) Restricted Payments made by Subsidiaries to so long as at the time of such purchase (and after giving effect thereto) there shall exist no Default, the Borrower may repurchase Borrower Common Stock from any Management Investor (i) with proceeds of the key-man life insurance maintained on the life of such Management Investor, (ii) with cash in an aggregate amount not exceeding $3,000,000 per year or wholly-owned Subsidiaries(iii) with Indebtedness permitted in accordance with clause (o) of Section 7.2.2; (b) Restricted Payments made by so long as at the time of such payment (and after giving effect thereto) there shall exist no Payment Default or Event of Default described in Section 8.1.3 or 8.1.9, the Borrower may pay fees to Parent Harvest Partners and its respective Affiliates in respect of management services rendered by them to the Borrower and its Subsidiaries 84 118 to the extent the aggregate amount of such fees in any Fiscal Year (or portion thereof) does not exceed $1,250,000 per year, and so long as such fees accrue ratably throughout such year and are payable in advance or semi-annually; (i) pursuant any Subsidiary of the Borrower may make Restricted Payments to the Tax Sharing Agreement; provided that the amount of such Restricted Payment shall not exceed the amount of taxes that the Borrower would have been liable for on a stand alone basis on a consolidated tax return with its Subsidiaries or any Subsidiary Guarantor and (ii) any non-wholly-owned Subsidiary of the Borrower may make Restricted Payments to pay franchise taxes and other overhead expenses of Parent in an amount not to exceed $500,000 in any Fiscal Year; (c) its shareholders generally so long as no Default the Borrower or its Subsidiary which owns the equity interest in the Subsidiary making such Restricted Payment receives at least its proportionate share thereof (based upon its relative holding of the type set forth in Section 8.1.1 or any Event of Default has occurred and is continuing, amounts payable to the Sponsors as set forth equity interests in the Monitoring AgreementSubsidiary making such Restricted Payment); (d) repurchases of Capital Securities from former employees, directors and officers Stock of Parent and its Subsidiaries in an amount not to exceed $2,000,000 in any Fiscal Year; provided that, to the extent the amount of repurchases permitted to be made in any Fiscal Year pursuant to this clause exceeds the aggregate amount of repurchases actually made by the Borrower and its Subsidiaries during such Fiscal Year, the excess amount may be carried forward to (but only to) the next succeeding Fiscal Year, and any such amount carried forward to a succeeding Fiscal Year shall be deemed to be used following the Borrower and its Subsidiaries using the amount of repurchases permitted by this clause in such succeeding Fiscal Year, without giving effect to such carry-forward; (e) repurchases of Capital Securities deemed to occur upon the exercise of stock options if such Capital Securities Stock represents a portion of the exercise price thereof and so long as no cash is paid or distributed by the Borrower or any of its Subsidiaries in connection therewith; (e) so long as (i) at the time of such optionsRestricted Payment there shall exist no Default or Event of Default, (ii) the Borrower shall have delivered to the Administrative Agent a Compliance Certificate for the period of four full Fiscal Quarters immediately preceding such Restricted Payment (prepared in good faith and in a manner and using such methodology which is consistent with the most recent financial statements delivered pursuant to Section 7.1.1) giving pro forma effect to such Restricted Payment and evidencing compliance with the covenants set forth in Section 7.2.4 and a pro forma Leverage Ratio of not more than 2.00:1.0, in each case, as of the last day of such period, and (iii) after giving effect to such Restricted Payment at least $25,000,000 of the Revolving Loan Commitment Amount would be unused, the Borrower may make Restricted Payments that, when aggregated with (A) all Restricted Payments previously made after the Effective Date pursuant to this Section 7.2.6(e) and (B) without duplication payments of principal of, and premium and interest on, Subordinated Debt previously made after the Effective Date pursuant to Section 7.2.8(a)(i)(y), do not exceed an amount equal to 25% of the cumulative positive Net Income of the Borrower and its Subsidiaries for the period from January 1, 2001 through the end of the most recent Fiscal Quarter or Fiscal Year for which the Borrower has delivered the financial statements required pursuant to Section 7.1.1(a) or (b); and (f) Restricted Payments in the manner contemplated by the Merger Agreement, as in effect on the date hereof and as amended in accordance with Section 7.2.12Transactions shall be permitted.

Restricted Payments, etc. The Borrower On and at all times after the Effective Date, (a) subject to clause (b)(ii), WWI will not declare, pay or make any dividend or distribution (in cash, property or obligations) on any shares of any class of Capital Securities (now or hereafter outstanding) of WWI or on any warrants, options or other rights with respect to any shares of any class of Capital Securities (now or hereafter outstanding) of WWI (other than dividends or distributions payable in its common stock or warrants to purchase its common stock or splits or reclassifications of its stock into additional or other shares of its common stock) or apply, or permit any of its Subsidiaries to apply, any of its funds, property or assets to the purchase, redemption, sinking fund or other retirement of, or agree or permit any of its Subsidiaries to purchase or redeem, any shares of any class of Capital Securities (now or hereafter outstanding) of WWI, or warrants, options or other rights with respect to any shares of any class of Capital Securities (now or hereafter outstanding, including but not limited to the WWI Preferred Shares) of WWI (collectively, "Restricted Payments"); provided, that (w) WWI may make Restricted Payments of dividends on WWI's Capital Securities or to repurchase WWI's Capital Securities in an amount up to $20,000,000 plus 50% of Net Income from the Effective Date, so long as (i) both before and after giving effect to such Restricted Payment no Default has occurred and is continuing, (ii) WWI's Senior Debt to EBITDA ratio on a pro forma basis after giving effect to such Restricted Payment is less than 2.0 to 1 and (iii) WWI shall have at least $30,000,000 of unused Revolving Loan Commitments (x) WWI may make dividend payments under the WWI Preferred Shares so long as no Default has occurred, no default has occurred under or the Senior Subordinated Note Indenture or, in either case, would result therefrom, (y) WWI may repurchase its stock held by employees constituting management, in an amount not to exceed $5,000,000 in any Fiscal Year and an aggregate amount of $20,000,000 (amounts unused in any Fiscal Year may be used in the immediately succeeding Fiscal Year) and (z) WWI may make Restricted Payments to redeem, in whole or in part, WWI Preferred Shares, so long as before and after giving effect to such Restricted Payment, (i) no Default has occurred and is continuing, (ii) WWI's Senior Debt to EBITDA ratio on a pro forma basis after giving effect to such Restricted Payment is less than 2.0 to 1 and (iii) WWI shall have at least $30,000,000 of unused Revolving Loan Commitments; (b) WWI will not, and will not permit any of its Subsidiaries to, declare (i) make any payment or make a Restricted Paymentprepayment of principal of, or interest on, any Senior Subordinated Notes (A) on any day other than, in the case of interest only, the stated, scheduled date for such payment of interest set forth in the applicable Senior Subordinated Notes or in the Senior Subordinated Note Indenture, or (B) which would violate the terms of this Agreement or the subordination provisions of the Senior Subordinated Note Indenture; or (ii) redeem, purchase or defease, any Senior Subordinated Notes, unless, so long as, both before and after giving effect to any such redemption, purchase or defeasance, (x) WWI's Senior Debt to EBITDA ratio on a pro forma basis after giving effect to such Restricted Payment is less than 2.0 to 1.0 and (y) WWI shall at the time of any such redemption, purchase or defeasance (have at least $30,000,000 of unused Revolving Loan Commitments; and (c) WWI will not, and will not permit any Subsidiary to, make any deposit for any Restricted Payment, other than: of the foregoing purposes (except in connection with any permitted expenditure described in clauses (a) Restricted Payments made by Subsidiaries to the Borrower or wholly-owned Subsidiaries; and (b) Restricted Payments made by the Borrower to Parent (i) pursuant to the Tax Sharing Agreement; provided that the amount of such Restricted Payment shall not exceed the amount of taxes that the Borrower would have been liable for on a stand alone basis on a consolidated tax return with its Subsidiaries and (ii) to pay franchise taxes and other overhead expenses of Parent in an amount not to exceed $500,000 in any Fiscal Year; (c) so long as no Default of the type set forth in Section 8.1.1 or any Event of Default has occurred and is continuing, amounts payable to the Sponsors as set forth in the Monitoring Agreement; (d) repurchases of Capital Securities from former employees, directors and officers of Parent and its Subsidiaries in an amount not to exceed $2,000,000 in any Fiscal Year; provided that, to the extent the amount of repurchases permitted to be made in any Fiscal Year pursuant to this clause exceeds the aggregate amount of repurchases actually made by the Borrower and its Subsidiaries during such Fiscal Year, the excess amount may be carried forward to (but only to) the next succeeding Fiscal Year, and any such amount carried forward to a succeeding Fiscal Year shall be deemed to be used following the Borrower and its Subsidiaries using the amount of repurchases permitted by this clause in such succeeding Fiscal Year, without giving effect to such carry-forward; (e) repurchases of Capital Securities deemed to occur upon exercise of stock options if such Capital Securities represents a portion of the exercise price of such options; and (f) Restricted Payments in the manner contemplated by the Merger Agreement, as in effect on the date hereof and as amended in accordance with Section 7.2.12above).

Restricted Payments, etc. The Parent and the Borrower will not, and will not permit any of its Subsidiaries Restricted Subsidiary to, declare or make a Restricted Payment, or make any deposit for any Restricted Payment, other thanthan the following: (a) Restricted Payments made by Restricted Subsidiaries to the Borrower or wholly-owned Subsidiariesany Subsidiary Guarantor; (b) Restricted Payments made by the Borrower to Parent (i) pursuant to the Tax Sharing Agreement; provided that the amount of such Restricted Payment shall not exceed the amount of taxes that the Borrower would have been liable for on a stand alone basis on a consolidated tax return with its Subsidiaries and (ii) to pay franchise taxes and other overhead expenses of Parent in an amount not to exceed $500,000 in any Fiscal Year; (c) so long as no Default shall have occurred and be continuing, the repurchase or other acquisition of shares, or options to purchase shares, of Capital Securities of the type Parent from employees, former employees, directors or former directors of the Parent or any of its Restricted Subsidiaries (or permitted transferees of such employees, former employees, directors or former directors) upon death, disability, retirement or termination of employment or pursuant to the terms of agreements (including employment agreements) or plans (or amendments thereto) approved by the Board of Directors of the Parent under which such Persons purchase or sell, or are granted the option to purchase or sell, shares of such stock; provided, however, that the aggregate amount of such repurchases shall not exceed $1,000,000 in any calendar year (unless such repurchases are made with the proceeds of insurance policies and the shares of Capital Securities are repurchased from the executors, administrators, testamentary trustees, heirs, legatees or beneficiaries); (c) Restricted Payments by the Borrower to the Parent: (i) to make scheduled interest payments with respect to the Convertible Notes and the 6¾% Debentures as such payments fall due; (ii) to pay overhead and audit expenses; provided, however that the aggregate amount of Restricted Payments paid to the Parent hereunder shall not exceed $1,000,000; (iii) to pay Taxes actually due and payable; and (iv) upon exercise of any of the Convertible Notes, to pay the aggregate amount of cash payable to the holder of such Convertible Note upon such exercise in accordance with the terms thereof and of the Convertible Notes Indenture; provided that (x) immediately before and after giving effect to such payment, no Default shall have occurred and be continuing or would result therefrom (including under clause (e) of Section 7.2.4) and (y) the Borrower shall have delivered to the Administrative Agent a Compliance Certificate (prepared in good faith and in a manner and using such methodology which is consistent with the most recent financial statements delivered pursuant to Section 7.1.1) demonstrating compliance with each of the financial covenants set forth in Section 8.1.1 or any Event of Default has occurred and is continuing, amounts payable to the Sponsors as set forth in the Monitoring Agreement; (d) repurchases of Capital Securities from former employees, directors and officers of Parent and its Subsidiaries in an amount not to exceed $2,000,000 in any Fiscal Year; provided that, to the extent the amount of repurchases permitted to be made in any Fiscal Year pursuant to this clause exceeds the aggregate amount of repurchases actually made by the Borrower and its Subsidiaries during such Fiscal Year, the excess amount may be carried forward to (but only to) the next succeeding Fiscal Year, and any such amount carried forward to 7.2.4 on a succeeding Fiscal Year shall be deemed to be used following the Borrower and its Subsidiaries using the amount of repurchases permitted by this clause in such succeeding Fiscal Year, without pro forma basis after giving effect to such carry-forward; (e) repurchases of Capital Securities deemed to occur upon exercise of stock options if such Capital Securities represents a portion Restricted Payment as of the exercise price last day of such options; and (f) Restricted Payments in the manner contemplated by the Merger Agreement, as in effect on the date hereof and as amended in accordance with Section 7.2.12Fiscal Quarter most recently ended.

Restricted Payments, etc. The (a) No Borrower will, nor will not, and will not any Borrower permit any of its Restricted Subsidiaries to, declare or make a Restricted Payment, or make any deposit for any Restricted Payment, other than: unless (ax) Restricted Payments made by Subsidiaries no Default exists immediately before and after giving effect to the Borrower or wholly-owned Subsidiaries;making of such Restricted Payment and (y) the Leverage Ratio has been less than 5:1 for the most recently ended Fiscal Quarter for which a Compliance Certificate was delivered immediately preceding the date of such Restricted Payment, and shall continue to be less than 5:1 on a pro forma basis after giving effect thereto. (b) Notwithstanding the foregoing, however, any Borrower or any of its Restricted Payments made by the Borrower to Parent Subsidiaries may declare and make Restricted Payments (i) pursuant to of cash or Cash Equivalent Investments with the Tax Sharing Agreementamount of Capital Contributions made into the Borrowers and (without duplication) their Restricted Subsidiaries after the Effective Date; provided that (A) no Default exists immediately before and (on a pro forma basis) after giving effect to the amount making of such Restricted Payment shall not exceed and (B) after giving effect thereto, the amount of taxes that the Borrower would have been liable for on a stand alone basis on a consolidated tax return with its Subsidiaries and Aggregate Capital Contribution Amount is greater than $1.00; or (ii) to pay franchise taxes and of property (other overhead expenses of Parent in an amount not to exceed $500,000 in any Fiscal Year; (c) than cash or Cash Equivalent Investments), so long as no Default of the type set forth in Section 8.1.1 or any Event of Default has occurred exists immediately before and is continuing, amounts payable (on a pro forma basis) after giving effect to the Sponsors as set forth in making of such Restricted Payment; provided, that (A) if such Restricted Payment is required to be deducted from the Monitoring Agreement; (d) repurchases of Capital Securities from former employees, directors and officers of Parent and its Subsidiaries in an amount not to exceed $2,000,000 in any Fiscal Year; provided that, Aggregate Property Contribution Amount pursuant to the extent the amount terms of repurchases permitted to be made this Agreement, then such property is similar in any Fiscal Year pursuant to this clause exceeds the aggregate amount of repurchases actually made all material respects (as reasonably determined by the Borrower and its Subsidiaries during such Fiscal Year, Arranging Agents) to the excess amount may be carried forward to Contributed Property (but only to) the next succeeding Fiscal Year, and any such amount carried forward to a succeeding Fiscal Year shall be it being agreed that all Cable Systems are deemed to be used following similar to each other) and has a Fair Market Value (determined as of the Borrower and its Subsidiaries using date such Restricted Payment is made) no greater than the amount Aggregate Property Contribution Amount then in effect or (B) if such Restricted Payment is required to be deducted from the Aggregate Capital Contribution Amount pursuant to the terms of repurchases permitted by this clause in such succeeding Fiscal YearAgreement, without after giving effect thereto, the Aggregate Capital Contribution Amount is greater than $1.00. In either case, the Borrowers shall deliver notice to the Administrative Agent setting forth as between clause (b)(i) and clause (b)(ii) where such carry-forward;Restricted Payment was deducted. (ec) repurchases of Capital Securities deemed to occur upon exercise of stock options if The Borrowers and their Restricted Subsidiaries may declare and make the Closing Date Restricted Payment (and such Capital Securities represents a portion Closing Date Restricted Payment shall not be included in any of the exercise price of such options; and (f) Restricted Payments in the manner contemplated by the Merger Agreement, as in effect on the date hereof and as amended in accordance with Section 7.2.12calculations set forth above).

Restricted Payments, etc. The None of Holdings, the Borrower will not, and will not permit or any of its the Subsidiaries to, will declare or make a Restricted Payment, or make any deposit for any Restricted Payment, other than: (a) Restricted Payments made by Subsidiaries to the Borrower or wholly-owned Subsidiaries to Holdings, the Borrower or any Subsidiaries; (b) Holdings may declare and pay dividends with respect to its capital stock and its Capital Securities payable solely in additional shares of its common stock and its Qualified Capital Securities (other than any common stock or other Qualified Capital Securities constituting tracking stock); (c) Holdings may make Restricted Payments made by the Borrower to Parent (i) pursuant to the Tax Sharing Agreement; provided that the amount and in accordance with restricted stock agreements, stock option plans or other benefit plans for management, directors or employees of such Restricted Payment shall not exceed the amount of taxes that the Borrower would have been liable for on a stand alone basis on a consolidated tax return with Holdings and its Subsidiaries and (ii) to pay franchise taxes and other overhead expenses of Parent in an aggregate amount not to exceed $500,000 250,000 in any Fiscal Year; (cd) Holdings may make Restricted Payments for the purpose of redeeming from former directors, officers, employees, members of management, managers or consultants of Holdings, Borrower or any Subsidiary (or their respective family members, former spouses or estate) Capital Securities of Holdings or its direct or indirect parent Persons (and/or making payments on promissory notes issued by Holdings or its Subsidiaries pursuant to Section 8.2) and any tax payments related thereto, so long as no Default of the type Borrower, after giving effect to such Restricted Payment, is in compliance with the covenant set forth in Section 8.1.1 or any Event of Default has occurred and is continuing, amounts payable to the Sponsors as set forth in the Monitoring Agreement; (d) repurchases of Capital Securities from former employees, directors and officers of Parent and its Subsidiaries in an amount not to exceed $2,000,000 in any Fiscal Year; provided that, to the extent the amount of repurchases permitted to be made in any Fiscal Year pursuant to this clause exceeds the aggregate amount of repurchases actually made by the Borrower and its Subsidiaries during such Fiscal Year, the excess amount may be carried forward to (but only to) the next succeeding Fiscal Year, and any such amount carried forward to a succeeding Fiscal Year shall be deemed to be used following the Borrower and its Subsidiaries using the amount of repurchases permitted by this clause in such succeeding Fiscal Year, without giving effect to such carry-forward8.4; (e) Holdings may make repurchases of Capital Securities deemed to occur upon the cash-less or net exercise of stock options if such options, warrants or other convertible or exchangeable securities; (f) Holdings may make repurchases of Capital Securities represents deemed to occur upon the withholding of a portion of the Capital Securities granted or awarded to a current or former officer, director, employee or consultant to pay for the taxes payable by such Person upon such grant or award (or upon vesting or exercise price thereof); (g) Holdings may pay cash in lieu of the issuance of fractional shares by Holdings or any of its direct or indirect parent Persons, in an aggregate amount not to exceed $100,000; (h) to the extent such optionspayments would constitute Restricted Payments, so long as no Event of Default has occurred and is continuing or would immediately result after giving effect thereto, Borrower may make payments to Paragon that are required to be made pursuant to any Paragon Management Agreement; provided that (i) any such payments prohibited due to the occurrence and continuance of an Event of Default may be accrued and subsequently paid at any time so long as no Event of Default has occurred and is continuing or would immediately result from such payment and (ii) indemnities or expense reimbursements that are required to be paid under any Paragon Management Agreement may be made notwithstanding the occurrence and continuation of an Event of Default; and (fi) Holdings may declare or make, or agree to pay or make Restricted Payments which are contingent upon either (i) the prior consent of Administrative Agent or the Required Lenders or (ii) the repayment in full of the manner contemplated by Obligations (other than contingent indemnification and expense reimbursement obligations for which no claims have been made) and the Merger Agreement, as in effect on termination of the date hereof and as amended in accordance with Section 7.2.12Commitments.

Restricted Payments, etc. The Borrower will not, and will not permit any of its their respective Subsidiaries to, declare or make a Restricted Payment, or make any deposit for any Restricted Payment, other thanexcept: (a) Restricted Payments made by Subsidiaries to so long as at the time of such purchase (and after giving effect thereto) there shall exist no Default, the Borrower may repurchase Borrower Common Stock from any Management Investor (i) with proceeds of the key-man life insurance maintained on the life of such Management Investor, (ii) with cash in an aggregate amount not exceeding $3,000,000 per year or wholly-owned Subsidiaries(iii) with Indebtedness permitted in accordance with clause (o) of Section 7.2.2; (b) Restricted Payments made by so long as at the time of such payment (and after giving effect thereto) there shall exist no Payment Default or Event of Default described in Section 8.1.3 or 8.1.9, the Borrower may pay fees to Parent Harvest Partners and its respective Affiliates in respect of management services rendered by them to the Borrower and its Subsidiaries to the extent the aggregate amount of such fees in any Fiscal Year (or portion thereof) does not exceed $1,250,000 per year, and so long as such fees accrue ratably throughout such year and are payable in advance or semi-annually; (i) pursuant any Subsidiary of the Borrower may make Restricted Payments to the Tax Sharing Agreement; provided that the amount of such Restricted Payment shall not exceed the amount of taxes that the Borrower would have been liable for on a stand alone basis on a consolidated tax return with its Subsidiaries or any Subsidiary Guarantor and (ii) any non-wholly-owned Subsidiary of the Borrower may make Restricted Payments to pay franchise taxes and other overhead expenses of Parent in an amount not to exceed $500,000 in any Fiscal Year; (c) its shareholders generally so long as no Default the Borrower or its Subsidiary which owns the equity interest in the Subsidiary making such Restricted Payment receives at least its proportionate share thereof (based upon its relative holding of the type set forth in Section 8.1.1 or any Event of Default has occurred and is continuing, amounts payable to the Sponsors as set forth equity interests in the Monitoring AgreementSubsidiary making such Restricted Payment); (d) repurchases of Capital Securities from former employees, directors and officers Stock of Parent and its Subsidiaries in an amount not to exceed $2,000,000 in any Fiscal Year; provided that, to the extent the amount of repurchases permitted to be made in any Fiscal Year pursuant to this clause exceeds the aggregate amount of repurchases actually made by the Borrower and its Subsidiaries during such Fiscal Year, the excess amount may be carried forward to (but only to) the next succeeding Fiscal Year, and any such amount carried forward to a succeeding Fiscal Year shall be deemed to be used following the Borrower and its Subsidiaries using the amount of repurchases permitted by this clause in such succeeding Fiscal Year, without giving effect to such carry-forward; (e) repurchases of Capital Securities deemed to occur upon the exercise of stock options if such Capital Securities Stock represents a portion of the exercise price thereof and so long as no cash is paid or distributed by the Borrower or any of its Subsidiaries in connection therewith; (e) so long as (i) at the time of such optionsRestricted Payment there shall exist no Default or Event of Default, (ii) the Borrower shall have delivered to the Administrative Agent a Compliance Certificate for the period of four full Fiscal Quarters immediately preceding such Restricted Payment (prepared in good faith and in a manner and using such methodology which is consistent with the most recent financial statements delivered pursuant to Section 7.1.1) giving pro forma effect to such Restricted Payment and evidencing compliance with the covenants set forth in Section 7.2.4 and a pro forma Leverage Ratio of not more than 2.00:1.0, in each case, as of the last day of such period, and (iii) after giving effect to such Restricted Payment at least $25,000,000 of the Revolving Loan Commitment Amount would be unused, the Borrower may make Restricted Payments that, when aggregated with (A) all Restricted Payments previously made after the Effective Date pursuant to this Section 7.2.6(e) and (B) without duplication payments of principal of, and premium and interest on, Subordinated Debt previously made after the Effective Date pursuant to Section 7.2.8(a)(i)(y), do not exceed an amount equal to 25% of the cumulative positive Net Income of the Borrower and its Subsidiaries for the period from January 1, 2001 through the end of the most recent Fiscal Quarter or Fiscal Year for which the Borrower has delivered the financial statements required pursuant to Section 7.1.1(a) or (b); and (f) Restricted Payments in the manner contemplated by the Merger Agreement, as in effect on the date hereof and as amended in accordance with Section 7.2.12Transactions shall be permitted.

Restricted Payments, etc. The Borrower will not, and will not permit any of its Restricted Subsidiaries to, declare or make a Restricted Payment, or make any deposit for any Restricted Payment, other than: (a) Restricted Payments made dividends or distributions by Subsidiaries to the Borrower or wholly-owned Subsidiariespayable in common stock of the Borrower; (b) Restricted Payments made by Restricted Subsidiaries to the Borrower to Parent (i) pursuant to the Tax Sharing Agreement; provided that the amount of such or wholly owned Restricted Payment shall not exceed the amount of taxes that the Borrower would have been liable for on a stand alone basis on a consolidated tax return with its Subsidiaries and (ii) to pay franchise taxes and other overhead expenses of Parent in an amount not to exceed $500,000 in any Fiscal YearSubsidiaries; (c) the payment of accrued and unpaid distributions by Titan Capital Trust on the HIGH TIDES so long as no Default of the type set forth in Section 8.1.1 or any Event of Default has shall have occurred and is continuing, amounts payable to the Sponsors as set forth in the Monitoring Agreementbe continuing or would result therefrom; (d) repurchases solely in the event that the ACS Acquisition is not consummated on or prior to March 31, 2000, the repurchase of Capital Securities from former employees, directors and officers of Parent and its Subsidiaries in HIGH TIDES having an amount aggregate liquidation value not to exceed $2,000,000 in the lesser of (x) an amount equal to 50% of the gross proceeds of the HIGH TIDES (including any Fiscal Year; provided that, HIGH TIDES issued as a result of the exercise of the over-allotment option) plus a premium equal to 2.5% of such gross proceeds and (y) the aggregate liquidation value of HIGH TIDES tendered pursuant to the extent the amount of repurchases permitted to be made in any Fiscal Year pursuant to this clause exceeds the aggregate amount of repurchases actually repurchase offer made by Titan Capital Trust as a result of the Borrower and its Subsidiaries during failure to consummate such Fiscal Year, the excess amount may be carried forward acquisition plus a premium equal to (but only to) the next succeeding Fiscal Year, and any 2.5% of such amount carried forward to a succeeding Fiscal Year shall be deemed to be used following the Borrower and its Subsidiaries using the amount of repurchases permitted by this clause in such succeeding Fiscal Year, without giving effect to such carry-forwardaggregate liquidation value; (e) repurchases subsequent to the issuance of Capital Securities deemed shares in connection with the initial public offering of Cayenta pursuant to occur upon exercise of stock options if such Capital Securities represents a portion the terms of the exercise price applicable underwriting agreement, the spin-off of Cayenta to shareholders of the Borrower; provided that the Total Debt to EBITDA Ratio does not exceed 3.00:1:00 (calculated on a pro forma basis) at the time of such optionsspin-off and, at the time of such spin-off, no Default shall have occurred and be continuing or be caused thereby, both before and after giving effect to such spin-off (with financial covenants to be calculated on a historical and a pro forma basis after giving effect to such spin-off); and (f) Restricted Payments redemptions of Capital Stock, provided that the following conditions are met: (i) the Total Debt to EBITDA Ratio, immediately following such redemption is less than 3.00:1.00, calculated on a pro forma basis; and (ii) the Fixed Charge Coverage Ratio immediately following the redemption shall not be less than the ratio required for the period in the manner contemplated by the Merger Agreementwhich such redemption occurs, as set forth in Section 8.4(c), calculated on a pro forma basis; and (iii) the aggregate value of such redemptions shall not exceed $5,000,000 in any Fiscal Year; and (iv) the aggregate value of all such redemptions shall not exceed $20,000,000; and (v) the unborrowed Revolving Loan Commitment Amount shall not be less than $20,000,000 at the time of such redemption; and (vi) at the time of such Restricted Payment, both before and after giving effect on the date hereof to such Restricted Payment, no Default shall have occurred and as amended in accordance with Section 7.2.12be continuing or caused thereby.

Restricted Payments, etc. The Neither the Borrower will notnor the other Restricted Parties shall, and will not nor shall any of them permit any of its their Subsidiaries to, declare or : (i) make any Restricted Payments except: (A) as may be agreed from time to time pursuant to the terms of any Intercreditor Agreement; (B) a non-wholly owned Subsidiary of Hudbay may make a Restricted Payment, or Payment provided that no holder of an Equity Interest in such Subsidiary receives a portion of the total Restricted Payment which is in excess of the percentage of Equity Interests which it owns in such Subsidiary and the applicable Hudbay Group Member receives its pro rata share; and (C) Hudbay may make any deposit for additional Restricted Payments; provided that, (I) in the case of any Restricted Payment made in reliance of this Section 8.6(h)(i)(C), at the time of and after giving effect to such Restricted Payment, other than: (a) no Default or Event of Default shall have occurred and be continuing; and b) the aggregate of all Restricted Payments made by Subsidiaries to the Borrower or wholly-owned Subsidiaries; (bin reliance on this Section 8.6(h)(i)(C) Restricted Payments made by the Borrower to Parent (i) pursuant to the Tax Sharing Agreement; provided that the amount in any fiscal year of such Restricted Payment Hudbay shall not exceed the RP Basket Amount; and (II) Hudbay has delivered to the Agent, at least two Banking Days prior to such Restricted Payment, an officer's certificate setting forth the amount of taxes the Restricted Payment, certifying that the Borrower would have been liable for on a stand alone basis on a consolidated tax return with its Subsidiaries foregoing conditions are satisfied and setting forth reasonably detailed calculations of the RP Basket Amount and demonstrating satisfaction of the condition set forth in paragraph (I) above; or (ii) purchase, redeem or repay prior to pay franchise taxes and their Stated Maturity in cash any notes or other overhead expenses debt securities issued pursuant to a Note Indenture or referred to in paragraphs (f) or (g) of Parent in an amount not to exceed $500,000 in any Fiscal Yearthe definition of Permitted Debt without the prior written consent of the Required Lenders unless: (A) Hudbay has pro forma Liquidity, taking into account such purchase, redemption or prepayment, of no less than US$100,000,000; (cB) so long as no Default of prior to and immediately following such purchase, redemption or prepayment, the type Borrower is in compliance with its financial covenants set forth in Section 8.1.1 or any Event of Default has occurred and is continuing8.1, amounts payable to the Sponsors as set forth in the Monitoring Agreement; (d) repurchases of Capital Securities from former employees, directors and officers of Parent and its Subsidiaries in an amount not to exceed $2,000,000 in any Fiscal Year; provided that, to the extent the amount of repurchases permitted to be made in any Fiscal Year pursuant to this clause exceeds the aggregate amount of repurchases actually made by the Borrower and its Subsidiaries during such Fiscal Year, the excess amount may be carried forward to (but only to) the next succeeding Fiscal Year, and any such amount carried forward to calculated on a succeeding Fiscal Year shall be deemed to be used following the Borrower and its Subsidiaries using the amount of repurchases permitted by this clause in such succeeding Fiscal Year, without giving effect to such carry-forward; (e) repurchases of Capital Securities deemed to occur upon exercise of stock options if such Capital Securities represents a portion of the exercise price of such optionspro forma basis; and (fC) no Default or Event of Default shall have occurred and be continuing or could reasonably be expected to arise from any such purchase, redemption or repayment. (iii) Notwithstanding Section 8.6(h)(A), the Borrower shall not make, or agree to pay or make, directly or indirectly, any Restricted Payments in the manner contemplated by the Merger Agreement, Payment if a Default or Event of Default shall have occurred and be continuing or could reasonably be expected to occur as in effect on the date hereof and as amended in accordance with Section 7.2.12a consequence of such Restricted Payment.

Restricted Payments, etc. The Borrower will not, and will ------------------------ not permit any of its Restricted Subsidiaries to, declare directly or indirectly, make a Restricted Payment, or make any deposit for any Restricted Payment, other than: if, after giving effect thereto (a) a Default or an Event of Default shall have occurred and be continuing or (b) the aggregate amount of all Restricted Payments made and the amount of Investments then outstanding pursuant to clause (g)(ii) under Section 7.2.9 by the Borrower and -------------- ------------- its Restricted Subsidiaries (the amount expended, distributed or invested for such purposes, if other than in cash, to be determined in good faith by the Board of Directors of the Borrower and evidenced by a Board Resolution) from and after the date of this Agreement shall exceed the sum of (i) 50% of Consolidated Net Income of the Borrower accrued for the period (taken as one accounting period) commencing with the date of this Agreement to and including the date of such calculation (or, in the event Consolidated Net Income for such period is a deficit, then minus 100% of such deficit), (ii) 50% of the (A) increase in depreciation expense resulting from the application of APB 16 purchase accounting to the acquisition of the Borrower in 1990, and (B) amortization of goodwill and deferred financing costs existing as of the date of this Agreement, in each case, for the period specified in clause (i) above, (iii) the aggregate ---------- net cash proceeds, including marketable securities, received by the Borrower or wholly-owned Subsidiaries; Parent from the issuance or sale (bother than to a Subsidiary of the Borrower or Parent, as the case may be) Restricted Payments made of its Capital Stock (other than Redeemable Stock) or any convertible debt securities that have been converted into shares of Capital Stock (other than Redeemable Stock), from and after the date of this Agreement, provided that, in the case of any issuance or sale by Parent, such -------- net cash proceeds are contributed as a capital contribution in exchange for common stock of the Borrower; (iv) the aggregate amount received by the Borrower to Parent or its Restricted Subsidiaries from an Unrestricted Subsidiary (iexcluding amounts received by the Borrower or any Restricted Subsidiary from an Unrestricted Subsidiary which represents a repayment of the principal portion of any loan or advance or any return of contributed capital), (v) pursuant to if there is a redesignation of Unrestricted Subsidiaries as Restricted Subsidiaries of the Tax Sharing Agreement; provided that Borrower, such aggregate amount of the net reduction in Investments in clause ------ (g) of Section 7.2.9 not exceeding the amount of such Restricted Payment shall not exceed the amount of taxes that Investments previously made by --- ------------- the Borrower would have been liable for on a stand alone basis on a consolidated tax return with its Subsidiaries and (ii) to pay franchise taxes and other overhead expenses of Parent in an amount not to exceed $500,000 in or any Fiscal Year; (c) so long as no Default Restricted Subsidiary of the type set forth Borrower in Section 8.1.1 or any Event of Default has occurred such Unrestricted Subsidiary pursuant to (and is continuing, amounts payable to the Sponsors as set forth in the Monitoring Agreement; accordance with) such clause (d) repurchases of Capital Securities from former employees, directors and officers of Parent and its Subsidiaries in an amount not to exceed $2,000,000 in any Fiscal Year; provided thatg), to the extent ---------- such amount was included in the calculation of the amount of repurchases permitted Restricted Payments; and (vi) $10,000,000. The foregoing clause (b) will not prevent (i) the payment of any dividend ---------- on Capital Stock within 60 days after the date of its declaration if such dividend could have been made on the date of its declaration in compliance with the foregoing provisions, (ii) the purchase, redemption or retirement or other acquisition of Capital Stock in exchange for or out of the proceeds of a substantially concurrent issue and sale (other than to be made in any Fiscal Year pursuant a Subsidiary) of other shares of Capital Stock (other than Redeemable Stock) of the Borrower, (iii) cash dividends paid to this clause exceeds Parent which dividends are used by Parent to repurchase Capital Stock of Parent from officers and employees (or their estates) of Parent, the aggregate amount Borrower or its Subsidiaries upon death, disability or termination of repurchases actually made employment of such officers and employees to the extent required by the Borrower and its Subsidiaries during such Fiscal Yearterms of the Stockholders Agreement, as amended, dated as of September 14, 1990 (the excess amount may be carried forward to (but only to) the next succeeding Fiscal Year"Stockholders Agreement"), and any such amount carried forward to a succeeding Fiscal Year shall be deemed to be used following extension thereof, among Parent and certain ---------------------- stockholders party thereto on substantially the Borrower same terms and its Subsidiaries using the amount of repurchases permitted by this clause in such succeeding Fiscal Year, without giving effect to such carry-forward; (e) repurchases of Capital Securities deemed to occur upon exercise of stock options if such Capital Securities represents a portion of the exercise price of such options; and (f) Restricted Payments in the manner contemplated by the Merger Agreement, conditions as in effect on the date hereof of this Agreement; provided, however, that the aggregate -------- ------- amount of all such repurchases in any fiscal year of the Borrower does not exceed $5,000,000; (iv) cash dividends paid to Parent which dividends are used by Parent to repurchase shares of its Capital Stock from participants who are distributed such shares from the ESOP to the extent required by the terms thereof as in effect on the date of this Agreement, (v) cash dividends paid to Parent out of the net proceeds to the Borrower of any benefits paid pursuant to the terms of the Life Insurance Policies; provided, however, that such net -------- ------- proceeds shall be first used to repurchase Capital Stock of Parent from the estate of such former officer or employee if such repurchase is required by the ESOP, the Stockholder Agreement or any other agreement and provided, further, -------- ------- that the amount of such dividend shall be excluded in the calculation of Restricted Payments for purposes of clause (b) of the immediately preceding ---------- paragraph, (vi) the purchase, redemption, retirement or other acquisition of any Indebtedness with the Net Proceeds from Asset Dispositions as amended permitted under Section 7.2.6, (vii) the exchanging, refinancing or refunding of Subordinated ------------- Indebtedness through the issuance of Subordinated Indebtedness so long as (A) the principal amount of the new Subordinated Indebtedness to be issued does not exceed the principal amount (plus any premium and consent payments required) of the Subordinated Indebtedness so exchanged, refinanced or refunded and (B) the Subordinated Indebtedness to be issued does not have a final maturity or mandatory redemption payments prior to the earlier of the final maturity of the Subordinated Indebtedness being so exchanged, refinanced or refunded or the stated maturity of the Term Notes, (viii) any securities or other Investments received in accordance connection with any sale or other disposition of property or assets, including any Asset Disposition that complies with Section 7.2.127.2.6; and (ix) ------------- Investments in connection with a Financing Disposition by or to any Receivables Entity, including Investments of funds held in accounts permitted or required by the arrangements governing such Financing Disposition or any related Indebtedness.

Restricted Payments, etc. The Borrower will not, and will not permit any of its Restricted Subsidiaries to, declare or make a Restricted Payment, or make any deposit for any Restricted Payment, other than: (a) Restricted Payments made by Subsidiaries to dividends or distributions payable in common stock of the Borrower or wholly-owned and its Restricted Subsidiaries; (b) Restricted Payments made by Restricted Subsidiaries to the Borrower to Parent (i) pursuant to the Tax Sharing Agreement; provided that the amount of such or wholly owned Restricted Payment shall not exceed the amount of taxes that the Borrower would have been liable for on a stand alone basis on a consolidated tax return with its Subsidiaries and (ii) to pay franchise taxes and other overhead expenses of Parent in an amount not to exceed $500,000 in any Fiscal YearSubsidiaries; (c) the payment of accrued and unpaid distributions by Titan Capital Trust on the HIGH TIDES so long as no Default of the type set forth in Section 8.1.1 or any Event of Default has shall have occurred and is continuing, amounts payable to the Sponsors as set forth in the Monitoring Agreementbe continuing or would result therefrom; (d) repurchases solely in the event that the ACS Acquisition is not consummated on or prior to March 31, 2000, the repurchase of Capital Securities from former employees, directors and officers of Parent and its Subsidiaries in HIGH TIDES having an amount aggregate liquidation value not to exceed $2,000,000 in the lesser of (x) an amount equal to 50% of the gross proceeds of the HIGH TIDES (including any Fiscal Year; provided that, HIGH TIDES issued as a result of the exercise of the over-allotment option) plus a premium equal to 2.5% of such gross proceeds and (y) the aggregate liquidation value of HIGH TIDES tendered pursuant to the extent the amount of repurchases permitted to be made in any Fiscal Year pursuant to this clause exceeds the aggregate amount of repurchases actually repurchase offer made by Titan Capital Trust as a result of the Borrower and its Subsidiaries during failure to consummate such Fiscal Year, the excess amount may be carried forward acquisition plus a premium equal to (but only to) the next succeeding Fiscal Year, and any 2.5% of such amount carried forward to a succeeding Fiscal Year shall be deemed to be used following the Borrower and its Subsidiaries using the amount of repurchases permitted by this clause in such succeeding Fiscal Year, without giving effect to such carry-forwardaggregate liquidation value; (e) repurchases subsequent to the issuance of Capital Securities deemed shares in connection with the initial public offering of Cayenta pursuant to occur upon exercise of stock options if such Capital Securities represents a portion the terms of the exercise price applicable underwriting agreement, the spin-off of Cayenta to shareholders of the Borrower; provided that the Total Debt to EBITDA Ratio does not exceed 3.00:1:00 (calculated on a PRO FORMA basis) at the time of such optionsspin-off and, at the time of such spin-off, no Default shall have occurred and be continuing or be caused thereby, both before and after giving effect to such spin-off (with financial covenants to be calculated on a historical and a PRO FORMA basis after giving effect to such spin-off); and (f) Restricted Payments redemptions of Capital Stock, provided, that the following conditions are met: (i) the Total Debt to EBITDA Ratio, immediately following such redemption is less than 3.00:1.00, calculated on a PRO FORMA basis; and (ii) the Fixed Charge Coverage Ratio immediately following the redemption shall not be less than the ratio required for the period in the manner contemplated by the Merger Agreementwhich such redemption occurs, as set forth in SECTION 8.4(c), calculated on a PRO FORMA basis; and (iii) the aggregate value of such redemptions shall not exceed $5,000,000 in any Fiscal Year; and (iv) the aggregate value of all such redemptions shall not exceed $20,000,000; and (v) the unborrowed Revolving Loan Commitment Amount shall not be less than $20,000,000 at the time of such redemption; and (vi) at the time of such Restricted Payment, both before and after giving effect on the date hereof to such Restricted Payment, no Default shall have occurred and as amended in accordance with Section 7.2.12be continuing or caused thereby.

Restricted Payments, etc. The Borrower On and at all times after the Effective Date, (a) subject to clause (b)(ii), WWI will not declare, pay or make any dividend or distribution (in cash, property or obligations) on any shares of any class of Capital Securities (now or hereafter outstanding) of WWI or on any warrants, options or other rights with respect to any shares of any class of Capital Securities (now or hereafter outstanding) of WWI (other than dividends or distributions payable in its common stock or warrants to purchase its common stock or splits or reclassifications of its stock into additional or other shares of its common stock) or apply, or permit any of its Subsidiaries to apply, any of its funds, property or assets to the purchase, redemption, sinking fund or other retirement of, or agree or permit any of its Subsidiaries to purchase or redeem, any shares of any class of Capital Securities (now or hereafter outstanding) of WWI, or warrants, options or other rights with respect to any shares of any class of Capital Securities (now or hereafter outstanding, including but not limited to the WWI Preferred Shares) of WWI (collectively, “Restricted Payments”); provided, that (w) WWI may make Restricted Payments of dividends on WWI’s Capital Securities or to repurchase WWI’s Capital Securities in an amount up to $20,000,000 plus 66.67% of Net Income from December 2, 2001, so long as (i) both before and after giving effect to such Restricted Payment no Default has occurred and is continuing, (ii) WWI’s Senior Debt to EBITDA ratio on a pro forma basis after giving effect to such Restricted Payment is less than 2.0 to 1 and (iii) WWI shall have at least $30,000,000 of unused Revolving Loan Commitments (x) WWI may make dividend payments under the WWI Preferred Shares so long as no Default has occurred, no default has occurred under the Senior Subordinated Note Indenture or, in either case, would result therefrom, (y) WWI may repurchase its stock held by employees constituting management, in an amount not to exceed $5,000,000 in any Fiscal Year and an aggregate amount of $20,000,000 (amounts unused in any Fiscal Year may be used in the immediately succeeding Fiscal Year) and (z) WWI may make Restricted Payments to redeem, in whole or in part, WWI Preferred Shares, so long as before and after giving effect to such Restricted Payment, (i) no Default has occurred and is continuing, (ii) WWI’s Senior Debt to EBITDA ratio on a pro forma basis after giving effect to such Restricted Payment is less than 2.0 to 1 and (iii) WWI shall have at least $30,000,000 of unused Revolving Loan Commitments; (b) WWI will not, and will not permit any of its Subsidiaries to, declare (i) make any payment or make a Restricted Paymentprepayment of principal of, or interest on, any Senior Subordinated Notes (A) other than in connection with the Tender Offer, or (B) on any day other than, in the case of interest only, the stated, scheduled date for such payment of interest set forth in the applicable Senior Subordinated Notes or in the Senior Subordinated Note Indenture, or (C) which would violate the terms of this Agreement or the subordination provisions of the Senior Subordinated Note Indenture; or (ii) redeem, purchase or defease, any Senior Subordinated Notes, (x) other than in connection with the Tender Offer or (y) unless, so long as, both before and after giving effect to any such redemption, purchase or defeasance, (1) WWI’s Senior Debt to EBITDA ratio on a pro forma basis after giving effect to such Restricted Payment is less than 2.0 to 1.0 and (2) WWI shall at the time of any such redemption, purchase or defeasance have at least $30,000,000 of unused Revolving Loan Commitments; and (c) WWI will not, and will not permit any Subsidiary to, make any deposit for any Restricted Payment, other than: of the foregoing purposes (except in connection with any permitted expenditure described in clauses (a) Restricted Payments made by Subsidiaries to the Borrower or wholly-owned Subsidiaries; and (b) Restricted Payments made by the Borrower to Parent (i) pursuant to the Tax Sharing Agreement; provided that the amount of such Restricted Payment shall not exceed the amount of taxes that the Borrower would have been liable for on a stand alone basis on a consolidated tax return with its Subsidiaries and (ii) to pay franchise taxes and other overhead expenses of Parent in an amount not to exceed $500,000 in any Fiscal Year; (c) so long as no Default of the type set forth in Section 8.1.1 or any Event of Default has occurred and is continuing, amounts payable to the Sponsors as set forth in the Monitoring Agreement; (d) repurchases of Capital Securities from former employees, directors and officers of Parent and its Subsidiaries in an amount not to exceed $2,000,000 in any Fiscal Year; provided that, to the extent the amount of repurchases permitted to be made in any Fiscal Year pursuant to this clause exceeds the aggregate amount of repurchases actually made by the Borrower and its Subsidiaries during such Fiscal Year, the excess amount may be carried forward to (but only to) the next succeeding Fiscal Year, and any such amount carried forward to a succeeding Fiscal Year shall be deemed to be used following the Borrower and its Subsidiaries using the amount of repurchases permitted by this clause in such succeeding Fiscal Year, without giving effect to such carry-forward; (e) repurchases of Capital Securities deemed to occur upon exercise of stock options if such Capital Securities represents a portion of the exercise price of such options; and (f) Restricted Payments in the manner contemplated by the Merger Agreement, as in effect on the date hereof and as amended in accordance with Section 7.2.12above).