Common use of Restricted Payments, etc Clause in Contracts

Restricted Payments, etc. On and at all times after the Closing Date, (a) except as set forth below, the Borrower will not declare and will not permit any Subsidiary to pay or make any dividend or distribution (in cash, property or obligations) on any shares (or other securities) of any class of the Borrower's Equity Interests (now or hereafter outstanding) or on any warrants, options or other rights with respect to any shares (or other securities) of any class of such Equity Interests (now or hereafter outstanding) or apply, or permit any of its Subsidiaries to apply, any of its funds or Property to the purchase, redemption, sinking fund or other retirement of, or agree or permit any of its Subsidiaries to purchase or redeem, any shares (or other securities) of any class of the Borrower's Equity Interests (now or hereafter outstanding), or warrants, options or other rights with respect to any shares (or other securities) of any class of the Borrower's Equity Interests (now or hereafter outstanding); (b) except as set forth below, (i) the Borrower will not, and will not permit any Subsidiary to, pay any portion of the Management Fee to NEG and (ii) the Borrower will not pay any NEG Guaranteed Payments (as defined in the NEG Holding Operating Agreement) pursuant to Section 6.5 of the NEG Holding Operating Agreement to NEG; (c) the Borrower will not, and will not permit any of its Subsidiaries to (i) make any payment or prepayment of principal of, or make any payment of interest on, any Subordinated Debt on any day other than the stated, scheduled date for such payment or prepayment permitted in the documents and instruments memorializing such Subordinated Debt; (ii) make any payment or prepayment of principal of, or make any payment of interest on, any Subordinated Debt which would violate the subordination provisions of such Subordinated Debt; or (iii) redeem, purchase or defease, any Subordinated Debt; and (d) the Borrower will not, and will not permit any Subsidiary to, make any deposit for any of the foregoing purposes; provided, however, that the Borrower and its Subsidiaries shall be allowed to effect a dividend or distribution otherwise restricted by clauses (a) or (b) above (subject at all times, however, with respect to any payment of a Management Fee, to the limitations set forth in Section 7.2.13) if and only if, prior to payment of the proposed dividend or distribution, the Borrower delivers to each Agent a compliance certificate executed by an Authorized Officer of the Borrower containing a statement to the effect that the Borrower has not become aware of any Default or Event of Default that has occurred or is continuing.

Restricted Payments, etc. On and at all times after the Closing Effective Date,: (a) except as set forth below, the Borrower will not declare and will not permit any Subsidiary to declare, pay or make any dividend or distribution (in cash, property or obligations) on any shares (or other securities) of any class of the Borrower's Equity Interests capital stock (now or hereafter outstanding) of the Borrower or on any warrants, options or other rights with respect to any shares (or other securities) of any class of such Equity Interests capital stock (now or hereafter outstanding) of the Borrower (other than dividends or distributions payable in its common stock or warrants to purchase its common stock or splitups or reclassifications of its stock into additional or other shares of its common stock or rights to purchase stock and securities contemplated by the Company's shareholders rights plan) or apply, or permit any of its Subsidiaries to apply, any of its funds funds, property or Property 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 (or other securities) of any class of the Borrower's Equity Interests capital stock (now or hereafter outstanding)) of the Borrower, or warrants, options or other rights with respect to any shares (or other securities) of any class of the Borrower's Equity Interests capital stock (now or hereafter outstanding)) of the Borrower; (b) except as set forth below, (i) the Borrower will not, and will not permit any Subsidiary to, pay any portion of the Management Fee to NEG and (ii) the Borrower will not pay any NEG Guaranteed Payments (as defined in the NEG Holding Operating Agreement) pursuant to Section 6.5 of the NEG Holding Operating Agreement to NEG; (c) the Borrower will not, and will not permit any of its Subsidiaries to to (i) make any payment or prepayment of principal of, or make any payment of interest on, any Subordinated Debt on any day other than the stated, scheduled date for such payment or prepayment permitted set forth in the documents and instruments memorializing such Subordinated Debt; (ii) make any payment or prepayment of principal of, or make any payment of interest on, any Subordinated Debt which would violate the subordination provisions of such Subordinated Debt; or or (iiiii) redeem, purchase or defease, any Subordinated Debt; and (dc) the Borrower will not, and will not permit any Subsidiary to, make any deposit for any of the foregoing purposes; provided, however, that the Borrower and its Subsidiaries shall be allowed to effect a dividend or distribution otherwise restricted by clauses (a) or (b) above (subject at all times, however, with respect to any payment of a Management Fee, to the limitations set forth in Section 7.2.13) if and only if, prior to payment of the proposed dividend or distribution, the Borrower delivers to each Agent a compliance certificate executed by an Authorized Officer of the Borrower containing a statement to the effect that the Borrower has not become aware of any Default or Event of Default that has occurred or is continuing.

Restricted Payments, etc. On and at all times after the Closing Date,: (a1) except as set forth below, the Borrower Borrowers will not declare and will not permit any Subsidiary to declare, pay or make any payment, dividend or distribution (in cash, property or obligations) on any shares (or other securities) of any class of the Borrower's Equity Interests Capital Stock (now or hereafter outstanding) of any Borrower or on or in respect of any warrants, options or other rights with respect to any shares (or other securities) of any class of such Equity Interests Capital Stock (now or hereafter outstanding) of any Borrower (other than dividends or distributions payable in its Capital Stock or warrants to purchase its Capital Stock or splitups or reclassifications of its Capital Stock into additional or other shares of its Capital Stock) or apply, or permit any of its their Subsidiaries to apply, any of its funds funds, property or Property assets to the purchase, redemption, sinking fund or other retirement of, or agree or permit any of its their Subsidiaries to purchase or redeem, any shares (or other securities) of any class of the Borrower's Equity Interests Capital Stock (now or hereafter outstanding)) of any Borrower, or warrants, options or other rights with respect to any shares (or other securities) of any class of the Borrower's Equity Interests Capital Stock (now or hereafter outstanding)) of any Borrower; (b) except as set forth below, (i2) the Borrower will not, and will not permit any Subsidiary to, pay any portion of the Management Fee to NEG and (ii) the Borrower will not pay any NEG Guaranteed Payments (as defined in the NEG Holding Operating Agreement) pursuant to Section 6.5 of the NEG Holding Operating Agreement to NEG; (c) the Borrower Borrowers will not, and will not permit any of its their Subsidiaries to (i) make any payment or prepayment of principal of, or make any payment of interest on, any Subordinated Debt on any day other than the stated, scheduled date for such payment or prepayment permitted set forth in the documents and instruments memorializing such Subordinated Debt; (ii) make any payment or prepayment of principal of, or make any payment of interest on, any Subordinated Debt which would violate the subordination provisions of such Subordinated Debt; , or (iiiii) redeem, purchase or defease, any Subordinated Debt; and (d3) the Borrower Borrowers will not, and will not permit any Subsidiary to, make any deposit for any of the foregoing purposes; provided, however, that the Borrower and its Subsidiaries shall be allowed to effect a dividend or distribution otherwise restricted by clauses (a) or (b) above (subject at all times, however, with respect to any payment of a Management Fee, to the limitations set forth in Section 7.2.13) if and only if, prior to payment of the proposed dividend or distribution, the Borrower delivers to each Agent a compliance certificate executed by an Authorized Officer of the Borrower containing a statement to the effect that the Borrower has not become aware of any Default or Event of Default that has occurred or is continuing.that,

Restricted Payments, etc. On and at all times after the ------------------------ Closing Date,: (a) except as set forth below, the Borrower will not declare not, and will not permit any Subsidiary to of its Subsidiaries to, declare, pay or make any payment, dividend or distribution (in cash, property or obligations) on any shares (or other securities) of any class of the Borrower's Equity Interests its Capital Stock (now or hereafter outstanding) or on in respect of any warrants, options or other rights with respect to any shares (or other securities) of any class of such Equity Interests its Capital Stock (now or hereafter outstanding) (other than dividends or distributions payable in its Capital Stock or warrants to purchase its Capital Stock or splitups or reclassifications of its Capital Stock into additional or other shares of its Capital Stock) or apply, or permit any of its Subsidiaries to apply, any of its funds funds, property or Property 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 (or other securities) of any class of the Borrower's Equity Interests Capital Stock (now or hereafter outstanding), ) or warrants, options or other rights with respect to any shares (or other securities) of any class of the Borrower's Equity Interests Capital Stock (now or hereafter outstanding)) in excess of $100,000 in the aggregate; (b) except as set forth below, (i) the Borrower will not, and will not permit any Subsidiary to, pay any portion of the Management Fee to NEG and (ii) the Borrower will not pay any NEG Guaranteed Payments (as defined in the NEG Holding Operating Agreement) pursuant to Section 6.5 of the NEG Holding Operating Agreement to NEG; (c) the Borrower will not, and will not permit any of its Subsidiaries to (i) make any payment or prepayment of principal of, or make any payment of interest on, any Subordinated Debt Indebtedness which is subordinated in right of payment to the prior payment of the Loans or other Obligations on any day other than the stated, scheduled date for such payment or prepayment permitted set forth in the documents and instruments memorializing such Subordinated Debt; (ii) make any payment or prepayment of principal ofsubordinated Indebtedness, or make any payment of interest on, any Subordinated Debt which would violate the subordination provisions of such Subordinated Debt; subordinated Indebtedness, or (iiiii) redeem, purchase or defease, any Subordinated Debtsuch subordinated Indebtedness; and (dc) the Borrower will not, and will not permit any Subsidiary to, make any deposit for any of the foregoing purposes; provided, however, that the Borrower and its Subsidiaries shall be allowed to effect a dividend or distribution otherwise restricted by clauses (a) or (b) above (subject at all times, however, with respect to any payment of a Management Fee, to the limitations set forth in Section 7.2.13) if and only if, prior to payment of the proposed dividend or distribution, the Borrower delivers to each Agent a compliance certificate executed by an Authorized Officer of the Borrower containing a statement to the effect that the Borrower has not become aware of any Default or Event of Default that has occurred or is continuing.

Restricted Payments, etc. On and at all times after the Closing Date,date hereof: (a) except as set forth below, the Borrower will not declare and will not permit any Subsidiary to declare, pay or make any dividend or distribution (in cash, property or obligations) on any shares (or other securities) of any class of the Borrower's Equity Membership Interests (now or hereafter outstanding) of the Borrower or on any warrants, options or other rights with respect to any shares (or other securities) of any class of such Equity Membership Interests (now or hereafter outstanding) of the Borrower (other than dividends or distributions payable in its Membership Interests or warrants to purchase its Membership Interests or splitups or reclassifications of its Membership Interests into additional or other shares of its Membership Interests ) or apply, or permit any of its Subsidiaries to apply, any of its funds funds, property or Property 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 (or other securities) of any class of the Borrower's Equity Membership Interests (now or hereafter outstanding)) of the Borrower, or warrants, options or other rights with respect to any shares (or other securities) of any class of the Borrower's Equity Membership Interests (now or hereafter outstanding)) of the Borrower; (b) except as set forth below, (i) the Borrower will not, and will not permit any Subsidiary to, pay any portion of the Management Fee to NEG and (ii) the Borrower will not pay any NEG Guaranteed Payments (as defined in the NEG Holding Operating Agreement) pursuant to Section 6.5 of the NEG Holding Operating Agreement to NEG; (c) the Borrower will not, and will not permit any of its Subsidiaries to to (i) make any payment or prepayment of principal of, or make any payment of interest on, (x) any Subordinated Debt subordinated debt on any day other than the stated, scheduled date for such payment or prepayment permitted set forth in the documents and instruments memorializing such Subordinated Debt; (ii) make any payment or prepayment of principal ofsubordinated debt, or make any payment of interest on, any Subordinated Debt which would violate the subordination provisions of such Subordinated Debt; subordinated debt or (iiiy) any Discount Note; or (ii) redeem, purchase or defease, any Subordinated Debt; and (d) the Borrower will not, and will not permit subordinated debt or any Subsidiary to, Discount Note or make any deposit payment for purposes of funding any of the foregoing purposes; provided, however, that the Borrower and its Subsidiaries shall be allowed to effect a dividend or distribution otherwise restricted by clauses (a) or (b) above (subject at all times, however, with respect to any payment of a Management Fee, to the limitations set forth in Section 7.2.13) if and only if, prior to payment of the proposed dividend or distribution, the Borrower delivers to each Agent a compliance certificate executed by an Authorized Officer of the Borrower containing a statement to the effect that the Borrower has not become aware of any Default or Event of Default that has occurred or is continuing.foregoing;

Restricted Payments, etc. On and at all times after the Closing Date,January 26, 1996: (a) except as set forth below, the Borrower will not declare and will not permit any Subsidiary to declare, pay or make any dividend or distribution (in cash, property or obligations) on any shares (or other securities) of any class of the Borrower's Equity Interests Capital Stock (now or hereafter outstanding) of the Borrower or on any warrants, options or other rights with respect to any shares (or other securities) of any class of such Equity Interests Capital Stock (now or hereafter outstanding) of the Borrower (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 funds, property or Property 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 (or other securities) of any class of the Borrower's Equity Interests Capital Stock (now or hereafter outstanding)) of the Borrower, or warrants, options or other rights with respect to any shares (or other securities) of any class of the Borrower's Equity Interests Capital Stock (now or hereafter outstanding) of the Borrower (collectively, "RESTRICTED PAYMENTS"); (b) except as set forth below, (i) the Borrower will not, and will not permit any Subsidiary to, pay any portion of the Management Fee to NEG and (ii) the Borrower will not pay any NEG Guaranteed Payments (as defined in the NEG Holding Operating Agreement) pursuant to Section 6.5 of the NEG Holding Operating Agreement to NEG; (c) the Borrower will not, and will not permit any of its Subsidiaries to to (i) make any payment or prepayment of principal of, or make any payment of interest on, any Subordinated Debt Notes (A) on any day other than than, in the case of interest only, the stated, scheduled date for such payment or prepayment permitted of interest set forth in the documents and instruments memorializing such applicable Subordinated Debt; (ii) make any payment Notes or prepayment of principal ofin the applicable Subordinated Note Indenture, or make any payment of interest on, any Subordinated Debt (B) which would violate the terms of this Agreement or the subordination provisions of such Subordinated DebtNote Indenture; or or (iiiii) redeem, purchase or defease, any Subordinated DebtNotes; and (dc) the Borrower will not, and will not permit any Subsidiary to, make any deposit for any of the foregoing purposes; providedPROVIDED, howeverHOWEVER, that that, (d) notwithstanding the provisions of CLAUSE (a) above, the Borrower and its Subsidiaries shall be allowed permitted to make Restricted Payments to Holdings (in the case of CLAUSE (d)(iv) below, commencing on February 1, 2002, and then only to the extent not prohibited in whole or in part by the terms of any Subordinated Debt), to the extent necessary to enable Holdings (i) to pay its overhead expenses in an amount not to exceed $50,000 in any Fiscal Year, (ii) to pay its taxes, (iii) so long as (A) no Default shall have occurred and be continuing on the date such Restricted Payment is declared or to be made, nor would a Default result from the making of such Restricted Payment, (B) after giving effect a dividend or distribution otherwise restricted by clauses to the making of such Restricted Payment the Borrower shall be in PRO FORMA compliance with the covenants set forth in SECTION 7.2.4 for the most recent full Fiscal Quarter immediately preceding the date of the payment of such Restricted Payment for which the relevant financial information has been delivered pursuant to CLAUSE (a) or CLAUSE (b) above of SECTION 7.1.1, and (subject at all times, however, with respect to any payment of a Management Fee, to the limitations set forth in Section 7.2.13C) if and only if, prior to payment of the proposed dividend or distribution, the Borrower delivers to each Agent a compliance certificate executed by an Authorized Officer of the Borrower containing shall have delivered a statement certificate to the effect Administrative Agent in form and substance satisfactory to the Administrative Agent (including a calculation of the compliance with the covenants set forth in SECTION 7.2.4) certifying as to the accuracy of CLAUSE (d)(iii)(A) and (d)(iii)(B) above, to purchase, redeem, acquire or otherwise retire for value shares of Capital Stock of Holdings held by officers or employees of Holdings or any of its Subsidiaries, or options on any such shares or related stock appreciation rights or similar securities owned by officers or employees (or their estates of beneficiaries under their estates), in all cases only upon death, disability, retirement, termination of employment or pursuant to the terms of such stock option plan or any other agreement under which such shares of Capital Stock, options, related rights or similar securities were issued (collectively referred to as a "REDEMPTION"), in an aggregate amount, in the case of this CLAUSE (d)(iii), not to exceed $1,000,000 in any Fiscal Year; PROVIDED, that the Borrower has can carry forward to each succeeding Fiscal Year the aggregate amount of Restricted Payments permitted (but not become aware made) pursuant to this CLAUSE (d)(iii) in prior Fiscal Years, with up to a maximum amount of $4,000,000 of Restricted Payments over the term of this Agreement permitted to be made pursuant to this CLAUSE (d)(iii) (net of any amounts contributed in cash to the capital of the Borrower by a replacement officer or employee following a Redemption as the result of the death, disability, retirement or termination of employment of another officer or employee of Holdings or any of its Subsidiaries after January 26, 1996); and (iv) to pay, on a quarterly basis, accrued interest then due and payable in cash pursuant to the terms of the Seller Note, but only if (A) no Default shall have occurred and be continuing on the date such dividend is declared or Event to be made, nor would a Default result from the making of such dividend, (B) after giving effect to the making of such dividend, the Debt to EBITDA Ratio shall be less than 2.0:1.0 on a PRO FORMA basis for the most recent two full Fiscal Quarters immediately preceding the date of the payment of such dividend for which the relevant financial information has been delivered pursuant to CLAUSE (a) or CLAUSE (b) of SECTION 7.1.1, and (C) an Authorized Officer of the Borrower shall have delivered a certificate to the Administrative Agent in form and substance satisfactory to the Administrative Agent (including a calculation of the Debt to EBITDA Ratio in reasonable detail) certifying to the accuracy of CLAUSE (d)(iv)(A) and (d)(iv)(B) above; (e) notwithstanding the provisions of CLAUSE (a) above, the Borrower shall, to the extent not prohibited in whole or in part by the terms of any Subordinated Debt, be permitted to declare and pay a one time cash dividend in an amount which, when aggregated with the amount of the Investment (if any) made pursuant to CLAUSE (g) of SECTION 7.2.5 on or prior to the date the dividend or distribution permitted pursuant to this clause is made, shall not exceed $25,000,000 if (i) no Default shall have occurred and be continuing on the date such dividend is declared or to be made, nor would a Default result from the making of such dividend, (ii) after giving effect to the making of such dividend, the Debt to EBITDA Ratio shall be less than 3.0:1.0 on a PRO FORMA basis for the most recent two full Fiscal Quarters immediately preceding the date of the payment of such dividend for which the relevant financial information has been delivered pursuant to CLAUSE (a) or CLAUSE (b) of SECTION 7.1.1, and (iii) an Authorized Officer of the Borrower shall have delivered a certificate to the Administrative Agent in form and substance satisfactory to the Administrative Agent (including a calculation of the Debt to EBITDA Ratio in reasonable detail) certifying to the accuracy of CLAUSE (e)(i) and (e)(ii) above; (f) notwithstanding the provisions of CLAUSE (a) above, the Borrower shall, to the extent permitted by the Subordinated Debt, be permitted to make Restricted Payments to Holdings in a maximum amount (subject to reduction as set forth in the PROVISO below) not to exceed $10,000,000, but only if Holdings promptly (and in any event within three Business Days following such Restricted Payment) applies such Restricted Payment to a prepayment of the principal amount of the Seller Note, and in any event only if (i) no Default shall have occurred and be continuing on the date such dividend is declared or to be made, nor would a Default result from the making of such dividend and (ii) after giving effect to the making of such dividend, the Debt to EBITDA Ratio shall be less than 3.0:1.0 on a pro forma basis for the most recent two full Fiscal Quarters immediately preceding the date of the payment of such dividend for which the relevant financial information has been delivered pursuant to CLAUSE (a) or CLAUSE (b) of SECTION 7.1.1, and (iii) an Authorized Officer of the Borrower shall have delivered a certificate to the Administrative Agent in form and substance satisfactory to the Administrative Agent (including a calculation of the Debt to EBITDA Ratio in reasonable detail) certifying to the accuracy of CLAUSE (f)(i) and (f)(ii); PROVIDED, that has occurred notwithstanding the foregoing, in no event shall the amount of the Restricted Payment permitted pursuant to this clause when aggregated with the principal amount of Subordinated Notes redeemed, purchased or is continuing.defeased in accordance with CLAUSE (g)(i) below exceed $40,000,000; and

Restricted Payments, etc. On The Borrower shall not and at all times after the Closing Date, shall not permit any Restricted Subsidiary to (a) except as set forth belowdeclare, the Borrower will not declare and will not permit any Subsidiary to pay or make any dividend or distribution (in cash, property or obligations) on any shares (or other securities) of any class of the Borrower's Equity Interests Capital Stock (now or hereafter outstanding) or on any warrants, options or other rights with respect to any shares (or other securities) of any class of such Equity Interests its Capital Stock (now or hereafter outstanding) other than dividends or apply, distributions payable in the Borrower's common stock or permit warrants to purchase the Borrower's common stock or splitups or reclassifications of the Borrower's Capital Stock into additional or other shares of its common stock or apply any of its Subsidiaries to applyor their funds, any of its funds property or Property 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 (or other securities) of any class of the Borrower's Equity Interests Capital Stock (now or hereafter outstanding), or warrants, options or other rights with respect to any shares (or other securities) of any class of the Borrower's Equity Interests its Capital Stock (now or hereafter outstanding); ; (b) except as set forth below, (i) expressly permitted in writing by the Borrower will not, and will not permit any Subsidiary to, pay any portion Administrative Agent with the consent of the Management Fee to NEG and (ii) the Borrower will not pay any NEG Guaranteed Payments (as defined in the NEG Holding Operating Agreement) pursuant to Section 6.5 of the NEG Holding Operating Agreement to NEG; (c) the Borrower will notRequired Banks, and will not permit any of its Subsidiaries to (i) make any payment or prepayment of principal of, or make any payment of interest on, any Subordinated Debt Indebtedness on any day other than the stated, scheduled date for such payment or prepayment permitted set forth in the documents and instruments memorializing such Subordinated Debt; (ii) make any payment or prepayment of principal ofIndebtedness, or make any payment of interest on, any Subordinated Debt which would violate the subordination provisions of such any Subordinated Debt; or (iiic) redeem, purchase or defease, any Subordinated Debt; and and (d) the Borrower will not, and will not permit any Subsidiary to, make any deposit for any of the foregoing purposespurposes (collectively, the "Restricted Payments"); provided, however, that so long as no Default is continuing and, after giving effect to any such payment, Borrowing Base Usage is not greater than 90%, the Borrower and its Restricted Subsidiaries shall be allowed to effect a dividend or distribution may make payments otherwise restricted prohibited by the foregoing clauses (a) or ), (b) above and (subject at c) so long as (i) the aggregate of all timessuch payments does not exceed the difference, howeverif any, with respect to any payment between (x) the sum of a Management Fee, to (A) $25,000,000 plus (B) the limitations set forth in Section 7.2.13lesser of (1) if and only if, prior to payment the product of $5,000,000 times the proposed dividend or distribution, sum of 1 plus the Borrower delivers to each Agent a compliance certificate executed by an Authorized Officer number of full Fiscal Years of the Borrower containing a statement that have elapsed from January 1, 2001 to the effect time of such payment and (2) twenty-five percent (25%) of the Borrower's consolidated net income, to be calculated on a cumulative basis, for each Fiscal Year commencing with the Fiscal Year ending December 31, 2001, minus (y) the amount, if any, that any individual Investments or series of related Investments permitted pursuant to Section 7.2.5(k) exceed $10,000,000 and (ii) the aggregate of all such payments otherwise prohibited by the foregoing clause (a) does not exceed the difference, if any, between (x) the product of $10,000,000 times the sum of 1 plus the number of full Fiscal Years of the Borrower has not become aware that have elapsed from January 1, 2001 to the time of such payment less (y) the amount, if any, that any Default individual Investments or Event series of Default that has occurred or is continuingrelated Investments permitted pursuant to Section 7.2.5(k) exceed $10,000,000.

Restricted Payments, etc. On and at all times after the Closing Effective Date,: (a) except as set forth below, the Borrower Borrowers will not declare and will not permit any Subsidiary to declare, pay or make any payment, dividend or distribution (in cash, property or obligations) on any shares (or other securities) of any class of the Borrower's Equity Interests Capital Stock (now or hereafter outstanding) of any Borrower or on or in respect of any warrants, options or other rights (including SARs) with respect to any shares (or other securities) of any class of such Equity Interests Capital Stock (now or hereafter outstanding) of any Borrower (other than dividends or distributions payable in its Capital Stock or warrants to purchase its Capital Stock or splitups or reclassifications of its Capital Stock into additional or other shares of its Capital Stock) or apply, or permit any of its their Subsidiaries to apply, any of its funds funds, property or Property assets to the purchase, redemption, sinking fund or other retirement of, or agree or permit any of its their Subsidiaries to purchase or redeem, any shares (or other securities) of any class of the Borrower's Equity Interests Capital Stock (now or hereafter outstanding)) of any Borrower, or warrants, options or other rights with respect to any shares (or other securities) of any class of the Borrower's Equity Interests Capital Stock (now or hereafter outstanding)) of any Borrower; (b) except as set forth below, (i) the Borrower will not, and will not permit any Subsidiary to, pay any portion of the Management Fee to NEG and (ii) the Borrower will not pay any NEG Guaranteed Payments (as defined in the NEG Holding Operating Agreement) pursuant to Section 6.5 of the NEG Holding Operating Agreement to NEG; (c) the Borrower Borrowers will not, and will not permit any of its their Subsidiaries to (i) make any payment or prepayment of principal of, or make any payment of interest on, any Subordinated Debt on any day other than the stated, scheduled date for such payment or prepayment permitted set forth in the documents and instruments memorializing such Subordinated Debt; (ii) make any payment or prepayment of principal of, or make any payment of interest on, any Subordinated Debt which would violate the subordination provisions of such Subordinated Debt; , or (iiiii) redeem, purchase or defease, any Subordinated Debt; and (dc) the Borrower Borrowers will not, and will not permit any Subsidiary to, make any deposit for any of the foregoing purposes; provided, however, that the Borrower and its Subsidiaries shall be allowed to effect a dividend or distribution otherwise restricted by clauses that, (d) notwithstanding clause (a) above, the Parent shall be permitted to make payments to purchase, redeem, acquire or otherwise retire for value shares of the Capital Stock of the Parent issued in connection with the Equity Issuance with Net Debt Proceeds of the Permitted Senior Subordinated Debt in an aggregate amount not to exceed $25,000,000, so long as (bi) above no Default shall have occurred and be continuing on the date such payment is made or would result from the making of such payment, (subject at all times, however, ii) after giving effect to such payment the Borrowers would be in pro forma compliance with respect to any payment of a Management Fee, to the limitations covenants set forth in Section 7.2.137.2.4 for the most recent full Fiscal Quarter immediately preceding the date of such payment, and (iii) if and only if, prior to payment of the proposed dividend or distribution, the Borrower delivers to each Agent a compliance certificate executed by an Authorized Officer of the each Borrower containing shall have delivered a statement certificate to the Agents in form and substance satisfactory to the Agents (including a calculation of the compliance with the covenants set forth in Section 7.2.4) certifying as to accuracy of clauses (d)(i) and (d)(ii) above; (e) notwithstanding clause (a) above, upon the consummation of an Initial Public Offering by the Parent, and after giving effect to the application of the Net Equity Proceeds received therefrom in accordance with clause (e) of Section 3.1.1, if the Leverage Ratio is less than 2.50:1 and no Defaults have occurred and are continuing or would occur after giving effect to this clause (e), the Parent may use any remaining Net Equity Proceeds from such Initial Public Offering to repurchase its outstanding Preferred Stock; (f) notwithstanding clause (a) above, payments may be made by the Parent in respect of the SARs to the holders thereof pursuant to the SAR Agreement if (i) the Leverage Ratio for each of the two full Fiscal Quarters immediately preceding any such payment was less than 3.50:1, (ii) the aggregate amount of all payments made since the Effective Date pursuant to this clause (f) would not exceed $10,000,000 and (iii) no Defaults have occurred and are continuing or would occur as a result of any such payment; and (g) the Borrowers and their Subsidiaries shall be permitted to make payments to Triarc pursuant to the Tax Sharing Agreement (provided that the Borrower has not become aware Tax Sharing Agreement provides for payments to Triarc by the Borrowers and/or their Subsidiaries during each taxable year in respect of any Default the tax liabilities of the Parent and its Subsidiaries in amounts determined, in a manner substantially similar to the method provided in the Tax Sharing Agreement in effect on the date hereof, as if the Parent and its Subsidiaries were a separate affiliated group (within the meaning of section (a) (1) of the Code) that filed a separate consolidated federal income tax return and, if applicable, consolidated or Event of Default that has occurred or is continuingcombined tax returns under state and/or local law).

Restricted Payments, etc. On and at all times after the Closing Date,: (a) except as set forth below, the Borrower will not declare and will not permit any Subsidiary to declare, pay or make any dividend or distribution (in cash, property or obligations) on any shares (or other securities) of any class of the Borrower's Equity Interests Securities (now or hereafter outstanding) of the Borrower (other than dividends or on any warrants, options distributions payable in its common stock or warrants to purchase its common stock or split-ups or reclassifications of its stock into additional or other rights with respect to any shares (or other securities) of any class of such Equity Interests (now or hereafter outstandingits common stock) or apply, or permit any of its Subsidiaries to apply, any of its funds funds, property or Property 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 (or other securities) of any class of the Borrower's Equity Interests Securities (now or hereafter outstanding), or warrants, options or other rights with respect to any shares (or other securities) of Borrower; except (i) as necessary to fund the operating expenses of Parent in an aggregate amount not to exceed $100,000 in any class Fiscal Year; (ii) prior to December 31, 2002, expenses incurred in connection with the consummation of a Qualified IPO; and (iii) up to $325,000 in the Borroweraggregate to fund the cash requirements associated with the Parent's Equity Interests (now or hereafter outstanding);loans to management in conjunction with the exercise stock options in Parent prior to a Qualified IPO. (b) except as set forth below, (i) the Borrower will not, and will not permit any Subsidiary to, pay any portion of the Management Fee to NEG and (ii) the Borrower will not pay any NEG Guaranteed Payments (as defined in the NEG Holding Operating Agreement) pursuant to Section 6.5 of the NEG Holding Operating Agreement to NEG; (c) the Borrower will not, and will not permit any of its Subsidiaries to to, (i) make any payment or prepayment of principal of, or make any payment of interest on, any Subordinated Debt on any day other than the stated, scheduled date for such payment or prepayment permitted in the documents and instruments memorializing such Subordinated Debt; (ii) make any payment or prepayment of principal of, or make any payment of interest on, any Subordinated Debt which would violate the subordination provisions of the Subordination Agreement entered into with Lender with respect to such Subordinated Debt; Debt or (iiiii) make any payment or voluntary or mandatory prepayment of principal of, or redeem, purchase or defease, any Subordinated Debt; and; (dc) the Borrower will not, and will not permit any Subsidiary to, make any deposit for any of the foregoing purposes; provided, however, that the Borrower and its Subsidiaries shall be allowed to effect a dividend or distribution otherwise restricted by purposes set forth in clauses (a) or and (b); and (d) above (subject at all timesIf any payment of principal, however, interest or any other amount is required to be paid or is paid on the same day with respect to any payment of a Management FeeSubordinated Debt, on the one hand, and with respect to this Agreement or any other Loan Document, on the other hand, then all such amounts paid or required to be paid with respect to this Agreement or such other Loan Documents shall be paid in full in cash before any payments are made with respect to the limitations set forth in Section 7.2.13) if and only if, prior to payment of the proposed dividend or distribution, the Borrower delivers to each Agent a compliance certificate executed by an Authorized Officer of the Borrower containing a statement to the effect that the Borrower has not become aware of any Default or Event of Default that has occurred or is continuingSubordinated Debt.

Restricted Payments, etc. On and at all times after the Closing Date, (a) except as set forth below, the The Borrower will not declare not, and will not permit any Restricted Subsidiary to to, declare, pay or make any dividend payment, dividend, distribution or distribution exchange (in cash, property or obligations) on any shares (or other securities) in respect of any class of the Borrower's Equity Interests Capital Stock (now or hereafter outstanding) of the Borrower or on any warrants, options or other rights with respect to any shares (or other securities) of any class of such Equity Interests Capital Stock (now or hereafter outstanding) of the Borrower (other than (i) dividends or distributions payable in its Capital Stock or warrants to purchase its Capital Stock and (ii) splits or reclassifications of its Capital Stock into additional or other shares of its Capital Stock) or apply, or permit any of its Subsidiaries Restricted Subsidiary to apply, any of its funds funds, property or Property assets to the purchase, redemption, exchange, sinking fund or other retirement of, or agree or permit any of its Subsidiaries Subsidiary to purchase purchase, redeem or redeemexchange, any shares (or other securities) of any class of the Borrower's Equity Interests Capital Stock (now or hereafter outstanding)) of the Borrower, or warrants, options or other rights with respect to any shares (or other securities) of any class of the Borrower's Equity Interests Capital Stock (now or hereafter outstanding);) of the Borrower; and (b) except as set forth below, (i) the Borrower will not, and will not permit any Restricted Subsidiary to, pay any portion of the Management Fee to NEG and (ii) the Borrower will not pay any NEG Guaranteed Payments (as defined in the NEG Holding Operating Agreement) pursuant to Section 6.5 of the NEG Holding Operating Agreement to NEG; (c) the Borrower will not, and will not permit any of its Subsidiaries to (i) directly or indirectly make any payment or prepayment of principal of, or make any payment of interest on, any Senior Subordinated Debt on any day other than the stated, scheduled date for such payment or prepayment permitted set forth in the documents and instruments memorializing such Subordinated Debt; (ii) make any payment or prepayment of principal of, or make any payment of interest on, any Senior Subordinated Debt Documents or which would violate the subordination provisions of such Senior Subordinated Debt; , or (iiiii) redeem, purchase or defease, defease any Senior Subordinated Debt; (the foregoing prohibited acts referred to in CLAUSES (a) and (b) above are herein collectively referred to as "RESTRICTED PAYMENTS"); PROVIDED, HOWEVER, that (c) the Borrower shall be permitted to make Restricted Payments to Holdco to the extent necessary to enable Holdco to (i) pay its overhead expenses (including advisory fees in an amount not to exceed $1,000,000 in the aggregate in any Fiscal Year) in an amount not to exceed $5,000,000 in the aggregate in any Fiscal Year; (ii) pay taxes arising out of the Borrower's and the Restricted Subsidiaries' operations; and (diii) so long as (A) no Default shall have occurred and be continuing on the date such Restricted Payment is declared or to be made, nor would a Default result from the making of such Restricted Payment, (B) after giving effect to the making of such Restricted Payment, the Borrower will not, and will not permit any Subsidiary to, make any deposit shall be in PRO FORMA compliance with the covenant set forth in CLAUSE (a) of SECTION 7.2.4 for any the most recent full Fiscal Quarter immediately preceding the date of the foregoing purposes; provided, however, that making of such Restricted Payment for which the Borrower and its Subsidiaries shall be allowed relevant financial information has been delivered pursuant to effect a dividend or distribution otherwise restricted by clauses CLAUSE (a) or CLAUSE (b) above of SECTION 7.1.1, and (subject at all times, however, with respect to any payment of a Management Fee, to the limitations set forth in Section 7.2.13C) if and only if, prior to payment of the proposed dividend or distribution, the Borrower delivers to each Agent a compliance certificate executed by an Authorized Officer of the Borrower containing shall have delivered a statement certificate to the effect that Administrative Agent in form and substance satisfactory to the Borrower has not become aware Administrative Agent (including a calculation of any Default or Event the Borrower's PRO FORMA compliance with the covenant set forth in CLAUSE (a) of Default that has occurred or is continuing.SECTION 7.2.4 in reasonable detail) certifying as to the accuracy of CLAUSES (c)(iii)(a) and (c)(iii)(b) above,

Restricted Payments, etc. On and at all times after the Closing Date,date hereof: (a) except as set forth belowthe Company will not, the Borrower will not declare and will not permit any Subsidiary to of its Restricted Subsidiaries to, declare, pay or make any dividend payment, dividend, distribution or distribution exchange (in cash, property or obligations) on or in respect of any shares (or other securities) of any class of Capital Stock of the Borrower's Equity Interests Company (now or hereafter outstanding) or on any warrants, options or other rights with respect to any shares (or other securities) of any class of such Equity Interests Capital Stock of the Company (now or hereafter outstanding) (other than (i) dividends or distributions payable in its common stock or warrants to purchase its common stock and (ii) splits or reclassifications of its stock into additional or other shares of its common stock) or apply, or permit any of its Restricted Subsidiaries to apply, any of its funds funds, property or Property assets to the purchase, redemption, exchange, sinking fund or other retirement of, or agree or permit any of its Restricted Subsidiaries to purchase purchase, redeem or redeemexchange, any shares (or other securities) of any class of Capital Stock of the Borrower's Equity Interests Company (now or hereafter outstanding), or any warrants, options or other rights with respect to any shares (or other securities) of any class of Capital Stock of the Borrower's Equity Interests Company (now or hereafter outstanding); (b) except as set forth below, (i) the Borrower will not, and will not permit any Subsidiary to, pay any portion of the Management Fee to NEG and (ii) the Borrower will not pay any NEG Guaranteed Payments (as defined in the NEG Holding Operating Agreement) pursuant to Section 6.5 of the NEG Holding Operating Agreement to NEG; (c) the Borrower Company will not, and will not permit any of its Restricted Subsidiaries to to, (i) directly or indirectly make any payment or prepayment of principal of, or make any payment of interest on, any Senior Subordinated Debt on any day other than the stated, scheduled date for such payment or prepayment permitted set forth in the documents and instruments memorializing such Senior Subordinated Debt; (ii) make any payment or prepayment of principal ofDebt Documents, or make any payment of interest on, any Subordinated Debt which would violate the subordination provisions of such Senior Subordinated Debt; , or (iiiii) redeem, purchase or defease, defease any Senior Subordinated Debt; and Debt (d) the Borrower will not, and will not permit any Subsidiary to, make any deposit for any of the foregoing purposesprohibited acts referred to in clauses (a) and (b) above are herein collectively referred to as "Restricted Payments"); provided, however, that that (c) notwithstanding the Borrower and its Subsidiaries provisions of clause (a) above, the Company shall be allowed permitted to make Restricted Payments to FMH to the extent necessary to enable FMH and/or Holdings to: (i) pay its overhead expenses in an amount not to exceed $2,000,000 in the aggregate in any Fiscal Year (exclusive of advisory fees in an amount not to exceed $250,000 in the aggregate in any Fiscal Year); (iii) so long as (A) no Default shall have occurred and be continuing on the date such Restricted Payment is declared or to be made, nor would a Default result from the making of such Restricted Payment, (B) after giving effect a dividend or distribution otherwise restricted by clauses to the making of such Restricted Payment, the Company shall be in pro forma compliance with the covenant set forth in Section 7.2.4(b) for the most recent full Fiscal Quarter immediately preceding the date of the making of such Restricted Payment for which the relevant financial information has been delivered pursuant to clause (a) or clause (b) above of Section 7.1.1, and (subject at all times, however, with respect to any payment of a Management Fee, to the limitations set forth in Section 7.2.13C) if and only if, prior to payment of the proposed dividend or distribution, the Borrower delivers to each Agent a compliance certificate executed by an Authorized Officer of the Borrower containing Company shall have delivered a statement certificate to the effect Administrative Agent in form and substance satisfactory to the Administrative Agent (including a calculation of the Company's pro forma compliance with the covenant set forth in Section 7.2.4(b) in reasonable detail) certifying as to the accuracy of clauses (c)(iii)(A) and (c)(iii)(B) above, repurchase, redeem or otherwise acquire or retire for value any Capital Stock of Holdings or FMH, or any warrant, option or other right to acquire Capital Stock of Holdings or FMH, held by any member of management of the Company or any of its Subsidiaries (including Management Investors) pursuant to any management equity subscription agreement or stock option agreement; provided that the Borrower has aggregate price paid for all such repurchased, redeemed, acquired or retired Capital Stock, warrants, options and other rights shall not become aware exceed (I) $7,500,000 over the life of this Agreement plus (II) the aggregate cash proceeds received by the Company after the Original Closing Date (net of any Default such proceeds constituting Net Equity Proceeds required to be applied pursuant to Section 3.1.1) from any issuance of Capital Stock of Holdings or Event FMH, and warrants, options and other rights to acquire Capital Stock of Default that has occurred Holdings or is continuing.FMH, by Holdings or the Company to members of management of the Company and its Restricted Subsidiaries;

Restricted Payments, etc. On and at all times after the Closing Date,date hereof: (a) except as set forth belowthe Company will not, the Borrower will not declare and will not permit any Subsidiary to of its Subsidiaries to, declare, pay or make any dividend dividend, distribution or distribution exchange (in cash, property or obligations) on or in respect of any shares (or other securities) of any class of the Borrower's Equity Interests Capital Stock (now or hereafter outstanding) of the Company or on any warrants, options or other rights with respect to any shares (or other securities) of any class of such Equity Interests Capital Stock (now or hereafter outstanding) of the Company (other than (i) dividends or distributions payable in its common stock or warrants to purchase its common stock and (ii) 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 funds, property or Property assets to the purchase, redemption, exchange, sinking fund or other retirement of, or agree or permit any of its Subsidiaries to purchase purchase, redeem or redeemexchange, any shares (or other securities) of any class of the Borrower's Equity Interests Capital Stock (now or hereafter outstanding), ) of the Company or warrants, options or other rights with respect to any shares (or other securities) of any class of the Borrower's Equity Interests Capital Stock (now or hereafter outstanding)) of the Company; (b) except as set forth below, (i) the Borrower will not, and will not permit any Subsidiary to, pay any portion of the Management Fee to NEG and (ii) the Borrower will not pay any NEG Guaranteed Payments (as defined in the NEG Holding Operating Agreement) pursuant to Section 6.5 of the NEG Holding Operating Agreement to NEG; (c) the Borrower Company will not, and will not permit any of its Subsidiaries to (i) directly or indirectly, make any payment or prepayment of principal of, or make any payment of interest on, any Subordinated Debt Note, on any day other than the stated, scheduled date for such payment or prepayment permitted set forth in the documents and 137 146 instruments memorializing such Subordinated Debt; (ii) make any payment or prepayment of principal ofNote, or make any payment of interest on, any Subordinated Debt which would violate the subordination provisions of such Subordinated Debt; Note, or (iiiii) redeem, purchase or defease, defease any Subordinated Debt; and Note or Discount Debenture (d) the Borrower will not, and will not permit any Subsidiary to, make any deposit for any of the foregoing purposesprohibited acts referred to in clauses (a) and (b) above are herein collectively referred to as "Restricted Payments"); provided, however, that that (c) notwithstanding the Borrower and its Subsidiaries provisions of clause (a) above, the Company shall be allowed permitted to make Restricted Payments to Holdco to the extent necessary to enable Holdco to (i) pay its overhead expenses (including fees in respect of fees for advisory services) in an amount not to exceed $3,000,000 (which amount shall include not more than $500,000 in respect of advisory services) in the aggregate in any Fiscal Year, (ii) make payments in respect of taxes, (iii) so long as (A) no Default shall have occurred and be continuing on the date such Restricted Payment is declared or to be made, nor would a Default (including in respect of the financial covenants set forth in Section 7.2.4) result from the making of such Restricted Payment, (B) after giving effect a dividend or distribution otherwise restricted by clauses to the making of such Restricted Payment, the Company shall be in pro forma compliance with the covenant set forth in clause (b) of Section 7.2.4 for the most recent full Fiscal Quarter immediately preceding the date of the making of such Restricted Payment for which the relevant financial information has been delivered pursuant to clause (a) or clause (b) above of Section 7.1.1, and (subject at all times, however, with respect to any payment of a Management Fee, to the limitations set forth in Section 7.2.13C) if and only if, prior to payment of the proposed dividend or distribution, the Borrower delivers to each Agent a compliance certificate executed by an Authorized Officer of the Borrower containing Company shall have delivered a statement certificate to the effect that Administrative Agent in form and substance satisfactory to the Borrower has not become aware Administrative Agent (including a calculation of any Default or Event the Borrower's pro forma compliance with the covenant set forth in clause (b) of Default that has occurred or is continuing.Section 7.2.4 in reasonable detail) certifying as to the accuracy of clauses (c)(iii)(A) and (c)(iii)(B) above,