Common use of Restrictions on Indebtedness Clause in Contracts

Restrictions on Indebtedness. The Borrower shall not directly or indirectly create, incur, issue, assume, permit, suffer to exist or otherwise be or become liable with respect to, contingently or otherwise (collectively, “incur”), any Indebtedness; provided, however, that the Borrower may incur any of the following items of Indebtedness: (a) Indebtedness existing under the Initial Senior Bond Indentures in an amount not to exceed the amount of Indebtedness outstanding under the Initial Senior Bond Indentures as of the date of the Fifth Omnibus Amendment; (b) Permitted Refinancing Indebtedness of the Borrower in exchange for, or the net proceeds of which are used to renew, refund, refinance, replace, defease or discharge any Indebtedness (other than intercompany Indebtedness) that was permitted to be incurred under clause (a), (b) or (c) of this Section 2.5, provided that each of the following conditions shall have been satisfied: (1) the Senior Facility Agent shall have received a certificate from an Authorized Officer of the Borrower to the effect that the outstanding Senior Debt (other than Working Capital Debt and Indebtedness incurred pursuant to clauses (f), (g), (h), (i), (j), (k), (l), (m), and (o) of this Section 2.5) (after giving effect to the incurrence and application of proceeds of such Permitted Refinancing (2) using an interest rate equal to the weighted average interest rate of all such Senior Debt outstanding after giving effect to the incurrence of the Permitted Refinancing Indebtedness and the application of the proceeds therefrom);

Restrictions on Indebtedness. The Borrower shall None of the Borrowers will, and will not directly or indirectly permit any of its Subsidiaries to, create, incur, issue, assume, permit, suffer to exist guarantee or otherwise be or become liable with respect toremain liable, contingently or otherwise (collectivelyotherwise, “incur”), with respect to any Indebtedness; provided, however, that the Borrower may incur any of the following items of IndebtednessIndebtedness other than: (a) Indebtedness existing to the Lenders and the Administrative Agent arising under the Initial Senior Bond Indentures in an amount not to exceed the amount of Indebtedness outstanding under the Initial Senior Bond Indentures as any of the date of the Fifth Omnibus AmendmentLoan Documents; (b) Permitted Refinancing endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business; (c) Indebtedness in respect of any Derivative Contracts in the ordinary course of business; (d) Existing Senior Debt, and refundings, replacements or refinancings thereof; provided that no such refunding or refinancing shall shorten the maturity or weighted average life to maturity or increase the principal amount of any of the Existing Senior Debt; (e) Indebtedness of BGI’s domestic Subsidiaries that are Guarantors not to exceed $10,000,000, including such Indebtedness outstanding on the Closing Date; (f) Indebtedness of BGI’s foreign Subsidiaries not to exceed in the aggregate for all such foreign Subsidiaries $100,000,000, including such Indebtedness outstanding on the Closing Date but excluding Indebtedness under the Loan Documents; provided that the Borrowers are in current compliance with and, after giving effect to the proposed incurrence of Indebtedness, will continue to be in compliance with all of the covenants in §§9 and 10 hereof as if the transaction occurred on the first day of the period of measurement; (g) Indebtedness of the Borrower in exchange for, Borrowers or any Subsidiary that is a Guarantor that constitutes a Synthetic Lease or Capitalized Lease or otherwise incurred to finance the net proceeds acquisition of which are used to renew, refund, refinance, replace, defease fixed or discharge any Indebtedness capital assets (other than intercompany Indebtedness) that was permitted pursuant to be incurred under clause (aSale Leaseback Transactions referred to in §9.1(n), whether pursuant to a loan, financing lease or otherwise) in an aggregate principal amount not to exceed $30,000,000 at any time outstanding; (bh) Indebtedness of the Borrowers or any Subsidiary that is a Guarantor in respect of Subordinated Debt; (ci) Indebtedness of this Section 2.5the Borrowers owing to any Subsidiary of such Borrower that is a Guarantor which is expressly subordinated to the prior payment in full in cash of all Obligations on terms disclosed to and reasonably acceptable to the Administrative Agent prior to the incurrence thereof; (j) Indebtedness of a Person outstanding at the time it is first acquired by any of the Borrowers in an acquisition permitted pursuant to §9.5.1(g), provided that each any such Indebtedness was not created at the time of or in contemplation or in anticipation of such acquisition; (k) Indebtedness of any of the following conditions shall have been satisfied:Borrowers or any of their Subsidiaries which are Guarantors incurred in connection with the issuance of any surety bonds, Performance Letters of Credit or other similar performance bonds required pursuant to any contractual Obligation or requirement of law to which any of the Borrowers or any of their Subsidiaries which are Guarantors are subject in an aggregate principal amount not to exceed $15,000,000 at any time outstanding; (1l) the Senior Facility Agent shall have received a certificate from an Authorized Officer additional Indebtedness of the Borrower to the effect that the outstanding Senior Debt (other than Working Capital Debt and Borrowers not exceeding $35,000,000 less any Indebtedness incurred pursuant to clauses (f), under paragraph (g), in aggregate principal amount at any one time outstanding; (hm) Indebtedness of Subsidiaries of the Borrowers which are Guarantors owing to any other Subsidiaries of the Borrowers which are Guarantors or to the Borrowers which results from an Investment permitted under §9.3(g) or (i); (n) Indebtedness of BGI and its domestic Subsidiaries which are Guarantors incurred in connection with Sale Leaseback Transactions, in an aggregate principal amount not to exceed $25,000,000 at any time outstanding; (o) Indebtedness of BGI and its domestic Subsidiaries which are Guarantors incurred in connection with accounts receivable securitizations on customary terms or supply chain financing in the ordinary course of business which is nonrecourse to the Borrowers in an aggregate amount not to exceed $75,000,000; provided that the Borrowers are in current compliance with and, after giving effect to the proposed incurrence of Indebtedness, will continue to be in compliance with all of the covenants in §§9 and 10 hereof as if the transaction occurred on the first day of the period of measurement; (p) unsecured Indebtedness of BGI and its domestic Subsidiaries that are Guarantors in respect of earnout payments incurred in connection with any acquisition permitted under §9.5; provided that the Borrowers are in current compliance with and, after giving effect to the proposed incurrence of Indebtedness, will continue to be in compliance with all of the covenants in §§9 and 10 hereof as if the transaction occurred on the first day of the period of measurement; and (q) unsecured Indebtedness of BGI and its domestic Subsidiaries which are Guarantors, including, without limitation, convertible notes, in each case, on terms no more restrictive than this Credit Agreement, and, in respect of convertible notes, with a maturity date later than the Maturity Date; provided that the Borrowers are in current compliance with and, after giving effect to the proposed incurrence of Indebtedness, will continue to be in compliance with all of the covenants in §§9 and 10 hereof as if the transaction occurred on the first day of the period of measurement. Notwithstanding the foregoing, the aggregate amount of (i) Indebtedness of the Borrowers (under paragraphs (j) or (l)) secured by Liens plus (ii) Indebtedness of the Borrowers’ Subsidiaries (under paragraphs (e), (if), (j), (k), (l), (m), and ) or (o)) shall not exceed fifteen percent (15%) of Consolidated Total Assets of the Borrowers, determined as of the end of the then most recently completed fiscal year of the Borrowers. For the avoidance of doubt, the parties acknowledge and agree that if Indebtedness permitted in any subsection of this Section 2.5) (after giving effect 9.1 is permitted to be incurred by BGI and/or any of its Subsidiaries, and BGI guarantees the incurrence and application obligations of proceeds any Subsidiary in respect of such Permitted Refinancing (2) using an interest rate equal to Indebtedness, the weighted average interest rate BGI Guaranty shall not increase the amount of all Indebtedness deemed incurred under such Senior Debt outstanding after giving effect to the incurrence of the Permitted Refinancing Indebtedness and the application of the proceeds therefrom);subsection.

Restrictions on Indebtedness. The Borrower shall will not, and will not directly or indirectly permit any of its Subsidiaries to, create, incur, issue, assume, permit, suffer to exist guarantee or otherwise be or become liable with respect toremain liable, contingently or otherwise (collectivelyotherwise, “incur”), with respect to any Indebtedness; provided, however, that the Borrower may incur any of the following items of IndebtednessIndebtedness other than: (a) Indebtedness existing to the Lenders and the Administrative Agent arising under the Initial Senior Bond Indentures in an amount not to exceed the amount of Indebtedness outstanding under the Initial Senior Bond Indentures as any of the date of the Fifth Omnibus AmendmentLoan Documents; (b) Permitted Refinancing Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §8.8; (c) Indebtedness in respect of judgments or awards that have been in force for less than the applicable period for taking an appeal so long as execution is not levied thereunder or in respect of which the Borrower or such Subsidiary shall at the time in good faith be prosecuting an appeal or proceedings for review and in respect of which a stay of execution shall have been obtained pending such appeal or review; (d) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business; (e) Subordinated Debt; (f) Indebtedness (in addition to similar Indebtedness permitted under clause (g) hereof) incurred in connection with the acquisition or lease after the date hereof of any real or personal property by the Borrower or such Subsidiary or under any Capitalized Leases, provided that (i) the aggregate principal amount of such Indebtedness of the Borrower in exchange forand its Subsidiaries (exclusive of the aggregate principal amount of Nonrecourse Loans) shall not exceed $25,000,000 outstanding at any one time and (ii) the principal amount of such Indebtedness secured by or relating to the lease of any particular property shall not exceed 100% of the purchase price of such property; (g) Indebtedness existing on the date hereof and listed and described on Schedule 9.1 hereto; and (h) any renewal or refinancing of any Indebtedness permitted under this §9.1; provided that any such refinancing or renewal does not (i) increase the aggregate amount of such Indebtedness, (ii) increase the interest rate or fees applicable to, or shorten the net proceeds of which are used weighted average life to renewmaturity of, refund, refinance, replace, defease or discharge any Indebtedness (other than intercompany such Indebtedness) that was permitted to be incurred under clause (a), (biii) change, alter or modify the terms of such Indebtedness in any manner which violates either §9.8 hereof or the Subordination and Intercreditor Agreement or (civ) add to the collateral, if any, securing such Indebtedness; (i) Indebtedness of this Section 2.5, the Borrower and its Subsidiaries consisting of short-term trade credit extended to the Borrower or such Subsidiary in the ordinary course of such Person’s business in connection with the acquisition of Containers and other equipment; provided that each such Indebtedness shall not be in existence for more than 180 days after the occurrence of the following conditions shall have been satisfied:transaction giving rise thereto; (1j) the Senior Facility Agent shall have received Indebtedness in respect of Interest Rate Protection Agreements; (k) Indebtedness of a certificate from an Authorized Officer Subsidiary of the Borrower to the effect Borrower consisting of Investments permitted by §9.3(e); (l) Indebtedness consisting of obligations (contingent or otherwise) of the Borrower or any Subsidiary existing or arising under any Swap Contract entered into with any Lender or the Administrative Agent, provided that the outstanding Senior Debt (other than Working Capital Debt and Indebtedness incurred pursuant to clauses (f), (g), (h), (i)) such obligations are (or were) entered into by such Person in the ordinary course of business for the purpose of directly mitigating risks associated with liabilities, commitments, investments, assets, or property held or reasonably anticipated by such Person, or changes in the value of securities issued by such Person, and not for purposes of speculation or taking a “market view;” and (j), (k), (l), ii) such Swap Contract does not contain any provision exonerating the non-defaulting party from its obligation to make payments on outstanding transactions to the defaulting party; and (m)) Indebtedness owing to Interpool in an aggregate amount not to exceed $40,000,000 incurred in connection with the purchase by the Borrower of its common stock from Interpool under the Redemption Agreement and representing the “cash” portion of such purchase price, provided, that no such Indebtedness shall remain outstanding following the earlier of (i) fourteen (14) days after the Closing Date and (oii) of this Section 2.5) (after giving effect to the incurrence and application of proceeds of such Permitted Refinancing (2) using an interest rate equal to the weighted average interest rate of all such Senior Debt outstanding after giving effect to the incurrence Drawdown Date of the Permitted Refinancing Indebtedness and the application of the proceeds therefrom);Term Loan.

Restrictions on Indebtedness. The Borrower shall not directly or indirectly None of the Borrowers will, nor will permit any of its Subsidiaries to, create, incur, issue, assume, permit, suffer to exist guarantee or otherwise be or become liable with respect toremain liable, contingently or otherwise (collectivelyotherwise, “incur”), with respect to any Indebtedness; provided, however, that the Borrower may incur any of the following items of IndebtednessIndebtedness other than: (a) Indebtedness existing to the Lenders and the Administrative Agent arising under the Initial Senior Bond Indentures in an amount not to exceed the amount of Indebtedness outstanding under the Initial Senior Bond Indentures as any of the date of the Fifth Omnibus AmendmentLoan Documents; (b) Permitted Refinancing endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business; (c) Indebtedness incurred in connection with the acquisition of any real or personal property by such Borrower or such Subsidiary or under any Capitalized Lease, and any refinancings, renewals and replacements thereof which contain terms no more onerous to the Borrowers than the Indebtedness so refinanced, renewed or replaced, provided that the aggregate principal amount of such Indebtedness (including any such Indebtedness outstanding on the Closing Date) of all of the Borrowers and their Subsidiaries shall not exceed the aggregate amount of $10,000,000 at any one time; (d) Indebtedness in respect of interest rate agreements, swaps or similar arrangements entered into to protect the Borrowers from changes in interest rates and not for speculative purposes; (e) Indebtedness not otherwise permitted by this § 10.1 existing on the Closing Date and listed and described on Schedule 10.1 hereto and any refinancings thereof not to exceed such original principal amount and on terms and conditions substantially similar thereto; and (i) Indebtedness evidenced by the Intercompany Canadian Loan Documents in an outstanding aggregate amount not to exceed $20,000,000 at any time during the term of this Credit Agreement, provided that on or following the Closing Date no incurrence of Indebtedness shall be permitted hereunder under the Intercompany Canadian Loan Documents if a Default or Event of Default is then continuing or would result therefrom, and (ii)(A) Indebtedness of the Domestic Borrower or any U.S. Subsidiary Guarantor owing to the Canadian Borrower, (B) Indebtedness of any Subsidiary of the Canadian Borrower that is a Guarantor owing to the Canadian Borrower, and (C) Indebtedness of any U.S. Subsidiary Guarantor owing to the Domestic Borrower or to any other U.S. Subsidiary Guarantor, provided that all such intercompany Indebtedness identified in exchange for, or the net proceeds of which are used to renew, refund, refinance, replace, defease or discharge any Indebtedness clauses (other than intercompany Indebtedness) that was permitted to be incurred under clause (aA), (bB) and (C) herein shall be subordinated to the Obligations on terms satisfactory to the Administrative Agent; (g) guarantees by a Borrower or a Subsidiary of a Borrower of Indebtedness otherwise permitted under this § 10.1; and (ch) other unsecured Indebtedness not otherwise permitted hereunder in an aggregate principal amount of this Section 2.5$10,000,000, provided that each no Default or Event of Default has occurred and is continuing at the time of the following conditions shall have been satisfied: (1) the Senior Facility Agent shall have received a certificate from an Authorized Officer incurrence of the Borrower to the effect that the outstanding Senior Debt (other than Working Capital Debt and such unsecured Indebtedness incurred pursuant to clauses (f), (g), (h), (i), (j), (k), (l), (m), and (o) of this Section 2.5) (or would result after giving effect to the incurrence and application of proceeds of such Permitted Refinancing (2) using an interest rate equal to the weighted average interest rate of all such Senior Debt outstanding after giving effect to the incurrence of the Permitted Refinancing Indebtedness and the application of the proceeds therefrom);thereto.

Restrictions on Indebtedness. The Borrower Company shall not directly or indirectly not, nor shall it permit any Subsidiary to, create, incur, issue, assume, permit, assume or suffer to exist or otherwise be or become liable with respect to, contingently or otherwise (collectively, “incur”), any Indebtedness; provided, however, that the Borrower may incur any of the following items of IndebtednessIndebtedness other than: (a) Indebtedness existing of the Company and its Subsidiaries under the Initial Senior Bond Indentures in Bank Credit Agreement and the 2016 NPA (either on an amount not to exceed unsecured basis or on a secured basis if the amount of Indebtedness outstanding under the Initial Senior Bond Indentures as of the date of the Fifth Omnibus AmendmentNotes are equally and ratably secured pari passu therewith); (b) Indebtedness existing on the date of the Assumption Agreement and set forth on Schedule 2 to the Assumption Agreement, including any renewals, extensions, refinancings and replacements thereof so long as the principal amount thereof (plus all accrued interest on such Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith, the amount of which may be included in the principal amount of any refinancing) is not increased; (c) incurrence of guaranty, suretyship or indemnification obligations in connection with the performance by the Company or any of its Subsidiaries of services for their respective customers in the ordinary course of their businesses; (d) so long as no Event of Default exists or would result therefrom (including that the Company would not violate the covenants set forth in Sections 10.13 and 10.14 as a result thereof), Indebtedness of one of the Company or any Subsidiary Guarantor or any one Subsidiary of the Company to the Company or another Subsidiary Guarantor or any other Subsidiary of the Company, which intercompany Indebtedness shall, in each case, be (x) unsecured, (y) subordinate to the obligations of the Company under this Agreement and the Notes in accordance with Section 24.11, and (z) in the case of any Permitted Refinancing Intercompany Financing, subject to the requirements set forth in Section 10.4.3; (e) Indebtedness of the Borrower Company or any of its Subsidiaries incurred in exchange forconnection with the acquisition or lease of any equipment or other property by the Company or any of its Subsidiaries under any Synthetic Lease, Capitalized Lease or other lease arrangement or purchase money financing; (f) Indebtedness of the net proceeds Company or any of which are used its Subsidiaries with respect to renewbonds for vehicle permits, refundfacility or building permits, refinancetipping or disposal fees, replacesolid waste collections, defease solid waste transportation, closure and post-closure obligations relating to any landfill owned or discharge operated by the Company or any of its Subsidiaries; (g) Indebtedness of the Company or any of its Subsidiaries in respect of Swap Contracts (other than intercompany Indebtednessincluding Fuel Derivatives Obligations) entered into in the ordinary course of business and not for speculative purposes; Waste Connections, Inc. Note Purchase Agreement (h) Indebtedness of the Company or any of its Subsidiaries with respect to letters of credit of Persons acquired by the Company or any of its Subsidiaries; (i) Indebtedness of the Company or any of its Subsidiaries in respect of IRBs; provided, that was permitted to be incurred under clause (a), ) such Indebtedness may be secured only to the extent such IRBs are L/C Supported IRBs and (b) or (c) of this Section 2.5, provided that each of the following conditions shall have been satisfied: (1) the Senior Facility Agent shall have received a certificate from an Authorized Officer of the Borrower to the effect that the outstanding Senior Debt (other than Working Capital Debt and after taking into account all Indebtedness incurred pursuant to clauses (f), (g), (h), this clause (i), the Company and its Subsidiaries on a consolidated basis shall be in pro forma compliance with each of the financial covenants set forth in Sections 10.13 and 10.14 (using Consolidated EBITDA of the Consolidated Group as of the last day of the applicable Pro Forma Reference Period (but including any addbacks to Consolidated EBITDA permitted pursuant to the Bank Credit Agreement during the period following the last day of the applicable Pro Forma Reference Period) and Consolidated Total Funded Debt as of the date of, and after giving effect to, such Indebtedness (with such amounts adjusted as if such Indebtedness was incurred on the first day of the applicable Pro Forma Reference Period)); (j) other secured Indebtedness of the Company and its Subsidiaries (other than as permitted under other subsections hereof), not in excess of $20,000,000 (or its equivalent in the relevant currency) in the aggregate at any time outstanding; (k)) other unsecured Indebtedness of the Company and its Subsidiaries; provided, that, at the time of incurrence thereof, (l)a) the Company and its Subsidiaries shall be in compliance with each of the financial covenants set forth in Sections 10.13 and 10.14 determined on a pro forma basis (using Consolidated EBITDA of the Consolidated Group as of the last day of the applicable Pro Forma Reference Period (but including any addbacks to Consolidated EBITDA permitted pursuant to the Bank Credit Agreement during the period following the last day of the applicable Pro Forma Reference Period) and Consolidated Total Funded Debt as of the date of, and after giving effect to, such Indebtedness) (m)including a pro forma application of the net proceeds thereof) as if such Indebtedness had been incurred on the first day of the applicable Pro Forma Reference Period, and (ob) the aggregate principal amount of all Non-Obligor Subsidiary Indebtedness incurred pursuant to Section 10.1(j) and this Section 2.510.1(k) (after giving effect to the incurrence and application shall not at any time exceed 15% of proceeds of such Permitted RefinancingConsolidated Net Worth; (2l) using an interest rate equal to the weighted average interest rate of all such Senior Debt outstanding after giving effect to the incurrence Indebtedness of the Permitted Refinancing Indebtedness Company and its Subsidiaries under this Agreement and the application of the proceeds therefrom);Notes; and (m) Indebtedness incurred by a Receivables SPV in a Permitted Receivables Transaction.

Restrictions on Indebtedness. The Borrower shall will not, and will not directly or indirectly permit its Subsidiaries to, create, incur, issue, assume, permit, assume or suffer to exist or otherwise be or become liable with respect to, contingently or otherwise (collectively, “incur”), any Indebtedness; provided, however, that the Borrower may incur any of the following items of IndebtednessIndebtedness other than: (a) Indebtedness existing under the Initial Senior Bond Indentures in an amount not to exceed the amount of Indebtedness outstanding under the Initial Senior Bond Indentures as of the date Borrower or its Subsidiaries of any kind whatsoever existing on the Fifth Omnibus AmendmentEffective Date; (b) Permitted Refinancing Indebtedness; (c) Indebtedness by an Operating Subsidiary of the Borrower that is non-recourse to the Borrower and incurred for working capital purposes or in the form of Capitalized Lease Liabilities, mortgage financings or purchase money obligations solely for such Subsidiary incurring such Indebtedness; (d) Indebtedness incurred in the ordinary course, excluding, to the extent included, with respect to the Borrower, Indebtedness for borrowed money (including Contingent Liabilities relating to borrowed money); and (e) additional Indebtedness incurred after the Effective Date consisting of: (i) intercompany loans evidenced by intercompany notes between the Borrower and its Subsidiaries provided that such intercompany notes are pledged as Collateral, (ii) Permitted Subsidiary Intercompany Indebtedness, (iii) hedging obligations of subsidiaries of BV in connection with their operations, (iv) letters of credit obtained in the support of trading activities of Subsidiaries of BV, (v) additional Indebtedness incurred by subsidiaries of BV not to exceed $100,000,000 and (vi) unsecured interest rate hedging obligations of the Borrower with respect to Indebtedness of the Borrower in exchange for, or the net proceeds of which are used to renew, refund, refinance, replace, defease or discharge any Indebtedness (other than intercompany Indebtedness) that was permitted to be incurred under clause (a), (b) or (c) of this Section 2.5, provided that each of the following conditions shall have been satisfied: (1) the Senior Facility Agent shall have received a certificate from an Authorized Officer of the Borrower to the effect that the outstanding Senior Debt (other than Working Capital Debt and Indebtedness incurred pursuant to clauses (f), (g), (h), (i), (j), (k), (l), (m), and (o) of this Section 2.5) (after giving effect to the incurrence and application of proceeds of such Permitted Refinancing (2) using an interest rate equal to the weighted average interest rate of all such Senior Debt outstanding after giving effect to the incurrence of the Permitted Refinancing Indebtedness and the application of the proceeds therefrom);Borrower.

Restrictions on Indebtedness. The No Borrower shall not directly become or indirectly be a guarantor or surety of, or otherwise create, incur, issue, assume, permit, suffer to exist or otherwise be or become liable with respect toremain liable, contingently or otherwise (collectivelyotherwise, “incur”), with respect to any Indebtedness; provided, howeveror become or be responsible in any manner (whether by agreement to purchase any obligations, that the Borrower may stock, assets, goods or services, or to supply or advance any funds, assets, goods or services or otherwise) with respect to any undertaking or Indebtedness of any other Person, or incur any of the following items of IndebtednessIndebtedness other than: (a) Indebtedness existing to the Banks and the Administrative Agent arising under the Initial Senior Bond Indentures in an amount not to exceed the amount of Indebtedness outstanding under the Initial Senior Bond Indentures as any of the date of the Fifth Omnibus AmendmentLoan Documents; (b) Permitted Refinancing incurrence by any Borrower of guaranty, suretyship or indemnification obligations in connection with such Borrower’s performance of services for its respective customers in the ordinary course of its business; (c) Indebtedness of one Borrower (other than a Designated LLC) to another Borrower (other than a Designated LLC); (d) other Indebtedness existing on the date hereof and listed and described on Schedule 7.1; (e) (i) purchase money Indebtedness incurred in connection with the acquisition after the Closing Date of any real or personal property or under equipment leases or equipment chattel, (ii) existing Indebtedness of any Subsidiary acquired after the Closing Date (the “Acquired Subsidiary”) originally incurred by the Acquired Subsidiary in connection with the lease or acquisition of property or fixed assets used in the business of the Acquired Subsidiary; or with respect to industrial finance bonds issued to finance the purchase of such property or assets; (iii) Indebtedness with respect to obligations under Capitalized Leases (iv) other unsecured Indebtedness; and (v) Indebtedness with respect to Subordinated Debt; provided that in the event that after the Closing Date any Subsidiary of the Parent guaranties any Subordinated Debt, the terms of such guaranty shall provide for the release of such guaranty upon the sale of stock or all or substantially all of the assets of such Subsidiary (even if such sale was made in a foreclosure); provided that the aggregate amount of such Indebtedness under this subsection (e) shall not exceed .5x EBITDA for the period of four (4) consecutive fiscal quarters most recently ended; (f) Indebtedness with respect to landfill closure bonds of the Borrowers in an aggregate amount not to exceed $30,000,000; (g) Noteholders’ Debt in principal amount not to exceed $75,000,000; (h) Indebtedness with respect to (i) the Xxxxxxx County Bonds in an aggregate amount not to exceed (A) $34,969,367 in connection with the Series 2000 Bonds, and (B) $9,804,000 in connection with the Series 2003 Bonds, and (ii) Indebtedness with respect to other tax-exempt revenue bonds not to exceed $25,000,000 in the aggregate; (i) Indebtedness of the Borrower Borrowers to the Designated LLCs which is evidenced by Designated Intercompany Debentures, in exchange foran aggregate amount not to exceed $100,000,000; (j) Indebtedness of a Designated LLC to a Borrower, whether in the form of intercompany payables, advances, notes or debentures, each of which is pledged to the net Collateral Agent, the proceeds of which are used loaned or contributed as capital to renewa direct or indirect Subsidiary of such Designated LLC, refund, refinance, replace, defease or discharge any Indebtedness which Subsidiary is a Borrower (other than intercompany Indebtedness) that was permitted to be incurred under clause (aand not a Designated LLC), (b) or (c) of this Section 2.5, ; provided that each of the following conditions shall have been satisfied: (1) the Senior Facility Agent shall have received a certificate from an Authorized Officer of the Borrower to the effect that the outstanding Senior Debt (other than Working Capital Debt and Indebtedness incurred pursuant to clauses (f), (g), (h), (i), (j), (k), (l), (m), and (o) of this Section 2.5) (after giving effect to the incurrence and application of proceeds of such Permitted Refinancing (2) using an interest rate equal to the weighted average interest rate aggregate amount of all such Senior Debt outstanding after giving effect Indebtedness permitted under this Section 7.1(j) shall not exceed $100,000,000; (k) Guaranty obligations of Parent with respect to undertakings by Xxxxxxx County Disposal, Inc. (or Xxxxxxx County Disposal, LLC as successor to Xxxxxxx County Disposal, Inc.) under (i) the Remarketing and Interest Services Agreement by and between Xxxxxxx County Disposal, Inc., Parent and Wachovia Securities, Inc. and (ii) the Bond Purchase Agreement by and among Wachovia Securities, Inc., The Xxxxxxx County Industrial Facilities and Pollution Control Financing Authority, Xxxxxxx County Disposal, Inc. and Parent; (l) Indebtedness of the Borrowers in respect of Swap Contracts satisfactory to the incurrence Administrative Agent; and (m) Indebtedness of the Permitted Refinancing Indebtedness Borrowers under fuel price swaps, fuel price caps, and fuel price collar or floor agreements, and similar agreements or arrangements designed to protect against or manage fluctuations in fuel prices with respect to fuel purchased in the application ordinary course of business of the proceeds therefromBorrowers (“Fuel Derivatives Obligations”);; provided that if the creation, incurrence, assumption or existence of any Indebtedness would constitute a default or an event of default under the Noteholders’ Debt, then the creation, incurrence, assumption or existence of such Indebtedness shall not be permitted hereunder.

Restrictions on Indebtedness. The Borrower shall not directly or indirectly will not, nor will the Borrower permit any of its Subsidiaries to, create, incur, issue, assume, permit, suffer to exist guarantee or otherwise be or become liable with respect toremain liable, contingently or otherwise (collectivelyotherwise, “incur”), with respect to any Indebtedness; provided, however, that the Borrower may incur any of the following items of IndebtednessIndebtedness other than: (a) Indebtedness existing to the Banks and the Agent arising under the Initial Senior Bond Indentures in an amount not to exceed the amount of Indebtedness outstanding under the Initial Senior Bond Indentures as any of the date of the Fifth Omnibus AmendmentLoan Documents; (b) Permitted Refinancing Indebtedness to suppliers in respect of long term supply contracts consistent with industry practices; (c) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of (S)9.8; (d) Indebtedness in respect of judgments or awards that have been in force for less than the applicable period for taking an appeal so long as execution is not levied thereunder or in respect of which the Borrower or such Subsidiary shall at the time in good faith be prosecuting an appeal or proceedings for review and in respect of which a stay of execution shall have been obtained pending such appeal or review; (e) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business; (f) Indebtedness evidenced by the Old Notes or the Senior Notes (including without limitation any guarantees of such Senior Notes by Subsidiaries which are Guarantors); (g) obligations of the Borrower and its Subsidiaries under Capitalized Leases; provided that the aggregate principal amount of all -------- such Indebtedness of the Borrower in exchange forand its Subsidiaries permitted pursuant to this (S)10.1(g) shall not exceed the aggregate amount of $5,000,000 at any one time; (h) Indebtedness existing on the date hereof and listed and described on Schedule 10.1 hereto, or including the net proceeds of which are used to renew, refund, refinance, replace, defease or discharge any Indebtedness (other than intercompany Indebtedness) that was permitted to be incurred under clause (a), (b) or (c) of this Section 2.5, provided that each remaining unamortized portion of the following conditions shall have been satisfied:-------- ---- original issue discount of such Indebtedness; (1i) the Senior Facility Agent shall have received Indebtedness of a certificate from an Authorized Officer Subsidiary of the Borrower which is a Guarantor existing on the Effective Date to the effect Borrower or another Subsidiary of the Borrower which is a Guarantor; provided that the outstanding Senior Debt (other than Working Capital Debt same are evidenced by -------- promissory notes, leases or contracts in form and Indebtedness incurred pursuant to clauses (f), (g), (h), (i), (j), (k), (l), (m), and (o) of this Section 2.5) (after giving effect substance satisfactory to the incurrence and application of proceeds of such Permitted Refinancing (2) using an interest rate equal Agent which are pledged to the weighted average interest rate of all such Senior Debt outstanding after giving effect to Agent for the incurrence benefit of the Permitted Refinancing Indebtedness and the application of the proceeds therefrom)Banks or evidenced only by open account;

Restrictions on Indebtedness. The Borrower shall not directly or indirectly createCreate, incur, issuesuffer or permit to exist, assumeor assume or guarantee, permiteither directly or indirectly, suffer to exist or otherwise be become or become remain liable with respect to, contingently or otherwise (collectively, “incur”), any Indebtedness; provided, however, that except the Borrower may incur any of the following items of Indebtednessfollowing: (a) Indebtedness existing to the Lenders and the Agent under this Agreement, the Initial Senior Bond Indentures in an amount not to exceed Term Loan Notes, and the amount of Indebtedness outstanding under the Initial Senior Bond Indentures as of the date of the Fifth Omnibus Amendmentother Lender Agreements; (b) the InterCompany Debt and such other indebtedness by the Borrower to American Ski and its Subsidiaries provided that it is governed by the Subordination Agreement; (c) the Purchase Money Indebtedness; (d) as to the Borrower Subsidiaries, Permitted Refinancing Construction Loans, and indebtedness of a Subsidiary of Borrower associated with the exercise of Borrower's rights under the Purchase Option (collectively, "Permitted Financial Facilities") Indebtedness shall not constitute a Permitted Financial Facility or a Permitted Construction Loan unless: (i) the terms and conditions and documents evidencing and securing the Indebtedness, and any proposed modifications thereto, have been approved in advance by the Agent and (ii) no such document or instrument either prohibits or causes the acceleration of the respective Indebtedness upon the pledge of the equity interests of the Borrower Subsidiary to the Agent or upon the foreclosure of such pledge by the Agent. Agent hereby approves those documents and instruments delivered to the Agent on or before the Closing Date (but not otherwise) executed in connection with the Permitted Construction Loans which have been closed as of the Closing Date, and such facilities shall constitute Permitted Financial Facilities regardless of satisfaction of the conditions of the preceding sentence. Subject to the preceding sentence, any Indebtedness of the Borrower in exchange foror a Borrower Subsidiary that initially qualifies as a Permitted Financial Facility shall automatically be disqualified as a Permitted Financial Facility upon the failure of the Borrower or the Borrower Subsidiary to meet the requirements set forth above; (e) the existing indebtedness set forth on Schedule 5.16, or otherwise approved by the net proceeds Agent from time to time subject to the conditions established in subsection (d) and the guaranty of which are used to renew, refund, refinance, replace, defease or discharge any Indebtedness (other than intercompany Indebtedness) that was permitted to be incurred under clause (a), (b) or (c) of this Section 2.5, provided that each a portion of the following conditions shall have been satisfied:Key Bank Facility; (1f) guaranties by a Borrower Subsidiary for the Indebtedness permitted hereunder of another Borrower Subsidiary; (g) Indebtedness which refinances any previously permitted Indebtedness hereunder provided the terms and conditions of such Indebtedness are no less stringent that the previous permitted Indebtedness and the refinance Indebtedness otherwise meets the requires established herein for permitted Indebtedness; (h) the Senior Facility Agent shall have received a certificate from an Authorized Officer of the Borrower Note Guaranty provided that it remains subordinate to the effect that the outstanding Senior Debt (other than Working Capital Debt and Indebtedness incurred pursuant to clauses (f), (g), (h), Lender Obligations; (i), ) such other subordinated indebtedness as is approved by the Agent; and (j), (k), (l), (m), and (o) of this Section 2.5) (after giving effect to indebtedness under the incurrence and application of proceeds of such Permitted Refinancing (2) using an interest rate equal to the weighted average interest rate of all such Senior Debt outstanding after giving effect to the incurrence of the Permitted Refinancing Indebtedness and the application of the proceeds therefrom);Purchase Option.

Restrictions on Indebtedness. The Borrower shall not directly or indirectly create, incur, issueCreate, assume, permitor otherwise become remain obligated in respect of, or permit or suffer to exist or otherwise to be created, assumed or become liable with incurred or to be outstanding, any (A) indebtedness or liability for borrowed money or for the deferred purchase price of property or services; (B) obligations as lessee under capital leases exceeding $500,000, except capital leases entered into in the ordinary course of business; (C) current liabilities in respect toof unfunded vested benefits under any benefits plan; (D) obligations under letters of credit, contingently bankers’ acceptances, bank guarantees and surety bonds or similar instruments issued for the account of any Person; (E) all guaranties, endorsements (other than for collection or deposit in the ordinary course of business) and other contingent obligations to purchase, to provide funds for payment, to supply funds to invest in any Person, or otherwise to assure a creditor against loss; or (collectivelyF) obligations secured by any lien, “incur”other than Permitted Liens, on property owned by the Borrower or any of its Subsidiaries, whether or not the obligations have been assumed (other than the obligations under the Note) or guarantee obligations other than (1) indebtedness of the Borrower secured by purchase-money liens as permitted in Section 5.2(b)(ii)(A) below, (2) accounts payable or other unsecured indebtedness to trade creditors for goods or services and current operating liabilities (other than for borrowed money) in each case which are incurred in the ordinary course of business of the Borrower, (3) extensions, refinancings, modifications, amendments and restatements of any items described in clauses (1), any Indebtedness; providedor (2), however, provided that the principal amount thereof is not increased or the terms thereof are not modified to impose more burdensome terms upon the Borrower and its Subsidiaries, as the case may incur any be (including, the shortening of the following items maturity of Indebtedness: any such indebtedness), (a4) Indebtedness existing under bank guarantees provided by Borrower and the Initial Senior Bond Indentures Subsidiaries in the ordinary course of business in an aggregate amount at any time outstanding not to exceed $250,000 excluding any existing bank guarantees and (5) indebtedness evidenced by the amount Note. Notwithstanding the foregoing restrictions, the Borrower and the Subsidiaries may borrow without the Holder’s consent up to an aggregate of Indebtedness outstanding under $18,000,000 (excluding the Initial Senior Bond Indentures Loan and any existing indebtedness as of the date of the Fifth Omnibus Amendment; (bPurchase Agreement) Permitted Refinancing Indebtedness of the Borrower in exchange for, or the net proceeds of which are used to renew, refund, refinance, replace, defease or discharge any Indebtedness (other than intercompany Indebtedness) that was permitted to be incurred under clause (a), (b) or (c) of this Section 2.5, provided that each of the following conditions shall have been satisfied: (1) the Senior Facility Agent shall have received a certificate from an Authorized Officer of the Borrower to the effect that the outstanding Senior Debt (other than Working Capital Debt for working capital and Indebtedness incurred pursuant to clauses (f), (g), (h), (i), (j), (k), (l), (m), and (o) of this Section 2.5) (after giving effect to the incurrence and application of proceeds of such Permitted Refinancing (2) using an interest rate equal to the weighted average interest rate of all such Senior Debt outstanding after giving effect to the incurrence of the Permitted Refinancing Indebtedness and the application of the proceeds therefrom);general corporate purposes.”

Restrictions on Indebtedness. The Borrower shall Except as permitted in §8.1(f) below, the Trust will not directly or indirectly (other than solely as a result of its status as a general partner of the Borrower) create, incur, issue, assume, permit, suffer to exist guarantee or otherwise be or become liable with respect toremain liable, contingently or otherwise (collectively, “incur”), with respect to any Indebtedness; provided, however, that Indebtedness other than the Obligations and any Indebtedness of the Borrower may incur permitted under the terms of this §8. 1. The Borrower will not, and will not permit any of the following items of Indebtednessits Subsidiaries to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than: (a) Indebtedness existing to the Banks arising under the Initial Senior Bond Indentures in an amount not to exceed the amount of Indebtedness outstanding under the Initial Senior Bond Indentures as any of the date Loan Documents, and Indebtedness and obligations in respect of the Fifth Omnibus AmendmentInterest Rate Contract(s) required pursuant to §7.18 and §7.20; (b) Permitted Refinancing current liabilities of the Borrower or its Subsidiaries incurred in the ordinary course of business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services; (c) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8; (d) Indebtedness in respect of judgments or awards the existence of which does not create an Event of Default; (e) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business; (f) subject to the provisions of §9, (i) Non-recourse Indebtedness of the Borrower in exchange for, or the net proceeds any of which are used to renew, refund, refinance, replace, defease or discharge any Indebtedness its Subsidiaries (other than intercompany Indebtedness) that was permitted to be incurred under clause (a), (b) or (c) of this Section 2.5, provided that each of the following conditions shall have been satisfied: (1) the Senior Facility Agent shall have received a certificate from an Authorized Officer of the Borrower to the effect that the outstanding Senior Debt (other than Working Capital Debt and Indebtedness incurred pursuant to clauses (f), (g), (h), (i), (j), (k), (l), (mSubsidiary Guarantors), and (oii) Indebtedness of Borrower, the Trust or any of the Borrower’s Subsidiaries (other than Subsidiary Guarantors) under environmental indemnities and guarantees with respect to customary exceptions to exculpatory language with respect to Non-recourse Indebtedness of Borrower’s Subsidiaries or Unconsolidated Affiliates permitted pursuant to §8.3(i) (it being agreed that any such indemnity or guaranty shall not cause such Non-recourse Indebtedness to be deemed to be Recourse Indebtedness and provided that in the event any claim is made against Borrower, the Trust or any of their respective Subsidiaries with respect to such indemnities, guarantees or exceptions, the amount so claimed shall be considered a recourse liability of such Person); (g) Indebtedness in respect of reverse repurchase agreements having a term of not more than one hundred eighty (180) days with respect to Investments described in §8.3(d) or (e); (h) subject to the provisions of §9, other Recourse Indebtedness (whether secured or unsecured) of this Section 2.5the Borrower and its Subsidiaries provided that in no event shall Secured Recourse Indebtedness of Borrower in the aggregate exceed fifteen percent (15%) of Consolidated Total Adjusted Asset Value (after giving effect provided that the liability under any completion guaranty shall equal the remaining costs to complete the applicable construction project in excess of construction loan or mezzanine loan proceeds available therefor and any equity deposited or invested for the payment of such costs; and provided further that Indebtedness of Borrower or any of its Subsidiaries with respect to the incurrence TIF Guaranty and application any other guaranty obligation which the Majority Banks may in their sole discretion approve in writing shall not be included for the purposes of proceeds §8.1(h) unless (i) a claim shall have been made against the Trust, Borrower or a Subsidiary of either of them on account of such Permitted Refinancing guaranty or (2ii) using an interest rate equal with respect to any other guaranty obligation which the weighted average interest rate Majority Banks may in their sole discretion approve in writing to not be included for the purposes of all §8.1(h), the occurrence of such Senior Debt outstanding after giving effect other events with respect thereto as the Majority Banks may require in connection with their approval of such obligation). The Subsidiary Guarantors may be liable with respect to the incurrence Unsecured Indebtedness of the Permitted Refinancing Indebtedness and the application of the proceeds therefrom);Borrower but not Secured Indebtedness; and

Restrictions on Indebtedness. The Borrower shall will not, and will not directly or indirectly permit any of its Subsidiaries to, create, incur, issue, assume, permit, suffer to exist guarantee or otherwise be or become liable with respect toremain liable, contingently or otherwise (collectivelyotherwise, “incur”), with respect to any Indebtedness; provided, however, that the Borrower may incur any of the following items of IndebtednessIndebtedness other than: (a) Indebtedness existing to the Lenders, the Issuing Lender and the Administrative Agent arising under the Initial Senior Bond Indentures in an amount not to exceed the amount of Indebtedness outstanding under the Initial Senior Bond Indentures as any of the date of the Fifth Omnibus AmendmentLoan Documents; (b) Permitted Refinancing endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business; (c) Indebtedness existing on the date hereof and listed and described on Schedule 9.1 hereto; (d) Indebtedness incurred in connection with guarantees and/or comfort letters issued by the Borrower in respect of obligations of its Subsidiaries or Joint Ventures, provided that the aggregate amount of such Indebtedness of the Borrower shall not exceed $50,000,000 at any one time; (e) Indebtedness in exchange for, or the net proceeds respect of which are used to renew, refund, refinance, replace, defease or discharge any Indebtedness (other than intercompany Indebtednessi) that was permitted to be incurred under derivative contracts described in clause (a)h) of the definition of the term “Indebtedness” consisting of foreign exchange contracts entered into in the ordinary course of business and for non-speculative purposes, and (bii) or any guarantees made by the Borrower of the contracts described in clause (ci) of this Section 2.59.1(e) entered into by Subsidiaries; (f) Indebtedness in respect of Capitalized Leases and Synthetic Leases, provided that each the aggregate principal amount of the following conditions shall have been satisfied: (1) the Senior Facility Agent shall have received a certificate from an Authorized Officer such Indebtedness of the Borrower to shall not exceed the effect that aggregate amount of $25,000,000 at any one time; (g) Indebtedness in respect of letters of credit in the outstanding Senior Debt ordinary course of business (other than Working Capital Debt Letters of Credit); (h) Indebtedness in respect of Investments permitted pursuant to Section 9.3(g) and Section 9.3(h) hereof; (i) Indebtedness of the type described in clause (g) of the definition of “Indebtedness” in an aggregate amount not to exceed $50,000,000 at any time; and (j) other Indebtedness of the Borrower and its Subsidiaries, provided that the aggregate principal amount of such Indebtedness of the Borrower and its Subsidiaries shall not exceed the aggregate amount of $100,000,000 at any one time, and provided further that any intercompany Indebtedness incurred pursuant to clauses (f), (g), (h), (i), (j), (k), (l), (m), solely among the Borrower and (oits Subsidiaries which would otherwise be permitted under Section 9.1(h) shall not be included for the purposes of the limit on Indebtedness set forth in this Section 2.5) (after giving effect to the incurrence and application of proceeds of such Permitted Refinancing (2) using an interest rate equal to the weighted average interest rate of all such Senior Debt outstanding after giving effect to the incurrence of the Permitted Refinancing Indebtedness and the application of the proceeds therefrom9.1(j);.

Restrictions on Indebtedness. The Borrower shall will not, and will not directly or indirectly permit its Subsidiaries to, create, incur, issue, assume, permit, suffer to exist guarantee or otherwise be or become liable with respect toremain liable, contingently or otherwise (collectivelyotherwise, “incur”), with respect to any Indebtedness; provided, however, that the Borrower may incur any of the following items of IndebtednessIndebtedness other than: (a) Indebtedness existing to the Lenders arising under the Initial Senior Bond Indentures in an amount not to exceed the amount of Indebtedness outstanding under the Initial Senior Bond Indentures as any of the date of the Fifth Omnibus AmendmentLoan Documents; (b) Permitted Refinancing current liabilities of the Borrower or its Subsidiaries incurred in the ordinary course of business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services; (c) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8; (d) Indebtedness in respect of judgments only to the extent, for the period and for an amount not resulting in a Default or Event of Default; (e) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business; (f) subject to the provisions of §9, Non-Recourse Indebtedness of the Borrower and its Subsidiaries (other than the Guarantors, the Unencumbered Property Subsidiaries or any other Subsidiary of Borrower or a Controlled JV Entity owning an interest in exchange fora Guarantor or an Unencumbered Property Subsidiary); provided that the Borrower may provide a guaranty or indemnity with respect to Non-Recourse Exclusions in connection with such Non-Recourse Indebtedness; and (g) subject to the provisions of §9, or the net proceeds of which are used to renew, refund, refinance, replace, defease or discharge any Indebtedness (other than intercompany Non-Recourse Indebtedness) that was permitted of Borrower and its Subsidiaries. Notwithstanding anything in this Agreement to be incurred under clause (a)the contrary, (bi) none of the Guarantors, if any, nor Unencumbered Property Subsidiaries (including without limitation any Controlled JV Entity which owns a Controlled JV Entity) shall create, incur, assume, guarantee or be or remain liable contingently or otherwise, with respect to any Indebtedness described in §8.1(f) or any Indebtedness described in §8.1(g) that is Secured Indebtedness, (cii) a Guarantor, if any, shall only provide a guaranty of this Section 2.5, provided that each of the following conditions shall have been satisfied: (1) the Senior Facility Agent shall have received a certificate from an Authorized Officer other Unsecured Indebtedness of the Borrower to the effect that the outstanding Senior Debt (other than Working Capital Debt and Indebtedness incurred permitted pursuant to clauses (f), (g), (h), (i), (j), (k), (l), (m§8.1(g), and (oiii) of this Section 2.5) (after giving effect to the incurrence and application of proceeds of such Permitted Refinancing (2) using an interest rate equal to the weighted average interest rate of all such Senior Debt outstanding after giving effect to the incurrence none of the Permitted Refinancing Indebtedness and the application described in §8.1(f) or §8.1(g) that is Secured Indebtedness shall have any of the proceeds therefromUnencumbered Properties or any interest therein or equipment related thereto or any direct or indirect ownership interest in any Guarantor, if any, or Unencumbered Property Subsidiary as collateral, a borrowing base, asset pool or any similar form of credit support for such Indebtedness (provided that the foregoing shall not preclude the Borrower from incurring liability with respect to Non-Recourse Exclusions in connection with the Indebtedness described in §8.1(f);).

Restrictions on Indebtedness. The Borrower shall will not, and will not directly or indirectly permit any of its Subsidiaries to, create, incur, issue, assume, permit, suffer to exist guarantee or otherwise be or become liable with respect toremain liable, contingently or otherwise (collectivelyotherwise, “incur”), with respect to any Indebtedness; provided, however, that the Borrower may incur any of the following items of IndebtednessIndebtedness other than: (a) Indebtedness existing arising under the Initial Senior Bond Indentures Existing Credit Agreement (as effect on the date hereof and after giving effect to any amendments or modifications thereto which do not result in an amount not aggregating amounts available thereto in excess of $1,300,000,000) and Indebtedness to exceed the amount of Indebtedness outstanding Lenders and the Agents arising under the Initial Senior Bond Indentures as any of the date of the Fifth Omnibus AmendmentLoan Documents; (b) Permitted Refinancing endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business; (c) Indebtedness incurred in connection with the acquisition after the Closing Date of any Property (and in any event not more than ninety (90) days from the date of such acquisition) by the Borrower or such Subsidiary as contemplated by Section 8.2(x); (d) obligations under or guaranties of Capitalized Leases; (e) Indebtedness in respect of Hedging Agreements entered into for hedging purposes only and not for speculation; provided that nothing in this Section 8.1(e) shall be deemed to prohibit equity hedging arrangements that constitute Restricted Payments permitted pursuant to Section 8.4; (f) Indebtedness existing on the Closing Date and listed and described on Schedule 8.1 hereto including any extensions or refinancings thereof on substantially similar terms as the Indebtedness being refinanced and provided there is no increase in the amount thereof; (g) unsecured Indebtedness of any of the Borrower’s Subsidiaries to, or in respect of Obligations of, the Borrower or another Subsidiary of the Borrower consisting of intercompany loans and, if no Default or Event of Default shall have occurred and be continuing at the time such Indebtedness is incurred, any other Investments; (h) unsecured Indebtedness of the Borrower in exchange forto, or in respect of obligations of, a Subsidiary of the net proceeds Borrower consisting of which are used intercompany loans and, if no Default or Event of Default shall have occurred and be continuing at the time such Indebtedness is incurred, any other Investments; (i) unsecured Indebtedness of the Borrower having a maturity at least three (3) months after the Maturity Date, in aggregate principal amount not to renewexceed $200,000,000; provided that at the time of incurrence such Indebtedness, refund, refinance, replace, defease no Default or discharge any Event of Default has occurred and is continuing or would result therefrom; and (j) Indebtedness (other than intercompany Indebtedness) that was of the Borrower and its Subsidiaries in addition to Indebtedness otherwise permitted to be incurred under by clause (a) to (i) above with an aggregate principal Dollar Equivalent amount outstanding not to exceed 40% of Consolidated Tangible Net Worth (determined as of the last day of the Fiscal Quarter most recently ended), (b) or (c) of this Section 2.5, provided that each at the time of the following conditions shall have been satisfied: (1) the Senior Facility Agent shall have received a certificate from an Authorized Officer of the Borrower to the effect that the outstanding Senior Debt (other than Working Capital Debt and Indebtedness incurred pursuant to clauses (f), (g), (h), (i), (j), (k), (l), (m), and (o) of this Section 2.5) (after giving effect to the incurrence and application of proceeds of such Permitted Refinancing (2) using an interest rate equal to the weighted average interest rate Indebtedness no Default or Event of all such Senior Debt outstanding after giving effect to the incurrence of the Permitted Refinancing Indebtedness Default has occurred and the application of the proceeds is continuing or would result therefrom);.

Restrictions on Indebtedness. The Neither the Borrower nor any of its Subsidiaries shall not directly become or indirectly be a guarantor or surety of, or otherwise create, incur, issue, assume, permit, suffer to exist or otherwise be or become liable with respect toremain liable, contingently or otherwise otherwise, with respect to any Indebtedness, or become or be responsible in any manner (collectivelywhether by agreement to purchase any obligations, “incur”stock, assets, goods or services, or to supply or advance any funds, assets, goods or services or otherwise) with respect to any Indebtedness of any other Person (other than the Borrower or any of its Subsidiaries), any Indebtedness; provided, however, that the Borrower may or incur any of the following items of IndebtednessIndebtedness other than: (a) Indebtedness existing arising under this Agreement or the Initial Senior Bond Indentures in an amount not to exceed the amount of Indebtedness outstanding under the Initial Senior Bond Indentures as of the date of the Fifth Omnibus Amendmentother Loan Documents; (bi) Permitted Refinancing Indebtedness incurred by the Borrower or any Subsidiary with respect to any suretyship or performance bond incurred in the ordinary course of its business and undrawn landfill closure bonds; (ii) Guarantees of any of its Subsidiaries' obligations to governmental authorities in lieu of the posting of any landfill closure bonds; (c) Unsecured Indebtedness of the Borrower (and any guarantee thereof by the Guarantor), including commercial paper and the 364 Day Facility, which is pari passu or subordinated to the Obligations; provided that there does not exist a Default or Event of Default at the time of the incurrence of such Indebtedness and no Default or Event of Default would be created by the incurrence of such Indebtedness; (d) Indebtedness of the Guarantor and the Borrower's Subsidiaries listed in exchange forSchedule 8.1(d) and any extension, renewal or refinancing by the Guarantor or such Subsidiary of such Indebtedness, provided that the terms and conditions of any such extension, renewal or refinancing are substantially the same as the terms and conditions in effect on the Effective Date, or are more favorable to the net proceeds Guarantor or such Subsidiary; and (i) Other Indebtedness of which are used to renew, refund, refinance, replace, defease or discharge any Indebtedness the Borrower's Subsidiaries (other than intercompany Indebtedness) that was permitted to be incurred under clause (aof the Guarantor), (bii) or (c) of this Section 2.5, provided that each secured Indebtedness of the following conditions shall have been satisfied: (1) the Senior Facility Agent shall have received a certificate from an Authorized Officer of the Borrower to the effect that the outstanding Senior Debt (other than Working Capital Debt and Indebtedness incurred pursuant to clauses (f)Borrower, (g), (h), (i), (j), (k), (l), (m)iii) Indebtedness with respect to drawn landfill closure bonds, and (oiv) of this Section 2.5) (after giving effect Indebtedness with respect to Permitted Receivables Transactions; provided that the incurrence and application of proceeds of such Permitted Refinancing (2) using an interest rate equal to the weighted average interest rate aggregate amount of all such Senior Debt outstanding after giving effect to the incurrence Indebtedness in this Section 8.1(e) shall not exceed 15% of the Permitted Refinancing Indebtedness and the application of the proceeds therefrom);Consolidated Tangible Assets at any time.

Restrictions on Indebtedness. The Borrower shall will not, and will not directly or indirectly permit any of its Restricted Subsidiaries to, create, incur, issue, assume, permit, suffer to exist guarantee or otherwise be or become liable with respect toremain liable, contingently or otherwise (collectivelyotherwise, “incur”), with respect to any Indebtedness; provided, however, that the Borrower may incur any of the following items of IndebtednessIndebtedness other than: (a) Indebtedness existing to the Lenders, the Issuing Bank and the Administrative Agent arising under the Initial Senior Bond Indentures in an amount not to exceed the amount of Indebtedness outstanding under the Initial Senior Bond Indentures as any of the date of the Fifth Omnibus AmendmentLoan Documents; (b) Permitted Refinancing endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business; (c) Indebtedness incurred in connection with the acquisition or lease after the date hereof of any real or personal property by the Borrower or such Restricted Subsidiary (including Indebtedness evidenced by Capitalized Lease or a Synthetic Lease, provided that the aggregate principal amount of such Indebtedness of the Borrower in exchange forand its Restricted Subsidiaries shall not exceed the aggregate amount of $80,000,000 at any one time; (d) Indebtedness existing on the date hereof and listed and described on Schedule 9.1 hereto and any Refinancing or renewal of such Indebtedness; provided, that any such Refinancing or renewal does not (i) increase the net proceeds aggregate amount of which are used to renew, refund, refinance, replace, defease or discharge any such Indebtedness (other than intercompany Indebtedness) that was permitted to be incurred under clause (aexcept by the amount of any premium or fee paid or payable in connection with such extension, renewal or replacement), (bii) shorten the Weighted Average Life to Maturity of, such Indebtedness, (iii) change, alter or modify the terms of such Indebtedness in any manner which violates either §9.8 or the Intercreditor Agreement or (civ) of this Section 2.5, provided that each of add to the following conditions shall have been satisfied:collateral or other credit support securing such Indebtedness; (1e) the Senior Facility Agent shall have received a certificate from an Authorized Officer Indebtedness of the Borrower to any of its Restricted Subsidiaries or of any Restricted Subsidiary to the effect Borrower or any other Subsidiary of the Borrower; provided, that Indebtedness owing to any Subsidiary of the outstanding Senior Debt Borrower that is not a Guarantor shall be subject to §9.3; (other than Working Capital Debt and f) Indebtedness of the Borrower or any Restricted Subsidiary incurred to Refinance the Indebtedness incurred pursuant in connection with a Permitted Securitization and otherwise solely for the purpose of financing assets of the Borrower and/or its Subsidiaries, provided, that any such Refinancing of a Permitted Securitization (i) does not increase the aggregate amount of such Indebtedness or, in the case of any revolving Indebtedness, increase the maximum permitted amount of such Indebtedness, (ii) does not result in Indebtedness having a Weighted Average Life to clauses Maturity which occurs on or prior to the Maturity Date, or (fiii) change, alter or modify the terms of such Indebtedness in any manner which violates either §9.11 or the Intercreditor Agreement; (g) Indebtedness of the Borrower incurred under a Recourse Guaranty issued in connection with the transactions described in clause (b), (gc) or (d) of the definition of the term “Permitted Securitization”, in an aggregate amount not to exceed (i) Eighty Million Dollars ($80,000,000), (hii) Four Hundred Million Dollars ($400,000,000) and (iii) Twenty Million Dollars ($20,000,000), respectively; (h) Indebtedness under interest rate protection agreements and hedging agreements which are non-speculative in nature and are entered into to protect the Borrower and/or its Subsidiaries against fluctuations in interest rates, currency exchange rates or commodity prices; (i)) Indebtedness of any Person that becomes a Restricted Subsidiary of the Borrower after the date hereof, provided, that such Indebtedness (j)1) exists at the time such Person becomes a Restricted Subsidiary of the Borrower, (k), (l), (m), and (o) of this Section 2.5) (after giving effect to the incurrence and application of proceeds of such Permitted Refinancing (2) using an interest rate equal to the weighted average interest rate is not created in contemplation of all or in connection with such Senior Debt outstanding after giving effect to the incurrence Person becoming a Subsidiary of the Permitted Refinancing Borrower and (3) otherwise complies with the provisions of this § 9.1, including § 9.1(j); and (j) additional Indebtedness and the application of the proceeds therefrom);Borrower and its Restricted Subsidiaries not to exceed $80,000,000 at any time outstanding and which would not result in a violation of § 10.1 or § 10.2.

Restrictions on Indebtedness. The Borrower shall not directly or indirectly Borrowers and the Guarantors may, and may permit their respective Subsidiaries to, create, incur, issue, assume, permit, suffer to exist guarantee or otherwise be or become remain liable with respect tofor, contingently or otherwise (collectively, “incur”)otherwise, any Indebtedness; provided, however, that the Borrower may incur any of the following items of IndebtednessIndebtedness other than: (a) Indebtedness existing (excluding the Obligations) which is incurred under the Initial Senior Bond Indentures in an amount not to exceed the amount a revolving credit facility or line of Indebtedness outstanding under the Initial Senior Bond Indentures as of the date of the Fifth Omnibus Amendmentcredit with another financial institution; (b) Permitted Refinancing Indebtedness which would result in a Default or Event of the Borrower in exchange for, Default under §10 hereof or the net proceeds under any other provision of which are used to renew, refund, refinance, replace, defease or discharge any Indebtedness (other than intercompany Indebtedness) that was permitted to be incurred under clause (a), (b) or this Credit Agreement; (c) An aggregate amount in excess of this Section 2.5$1,000,000 at any one time in respect of taxes, provided that each assessments, governmental charges or levies and claims for labor, materials and supplies for which payment therefor is required to be made in accordance with the provisions of §8.9 and has not been timely made; (d) An aggregate amount in excess of $1,000,000 at any one time in respect of uninsured judgments or awards, with respect to which the following conditions shall applicable periods for taking appeals have expired, or with respect to which final and unappealable judgments or awards have been satisfied:rendered; and (1e) Current unsecured liabilities incurred in the Senior Facility Agent shall have received a certificate from an Authorized Officer ordinary course of the Borrower to the effect that the outstanding Senior Debt business, which (other i) are overdue for more than Working Capital Debt and Indebtedness incurred pursuant to clauses sixty (f)60) days, (g), (h), (i), (j), (k), (l), (m)ii) exceed $1,000,000 in the aggregate at any one time, and (oiii) are not being contested in good faith. The terms and provisions of this Section 2.5) (§9.1 are in addition to, and not in limitation of, the covenants set fxxxx xx §00 of this Credit Agreement. Notwithstanding anything contained herein to the contrary, the Borrowers and the Guarantors will not, and will not permit any Subsidiary to, incur any Indebtedness for borrowed money which, together with other Indebtedness for borrowed money incurred by any Borrower, any Guarantor, and any Subsidiary since the date of the most recent compliance certificate delivered to the Administrative Agent in accordance with this Credit Agreement, exceeds $5,000,000 in the aggregate unless the Borrowers shall have delivered a compliance certificate in the form of Exhibit D-4 hereto to the Administrative Agent evidencing covenant compliance at the time of delivery of the certificate and on a pro-forma basis after giving effect to such proposed Indebtedness. The Administrative Agent will use good faith efforts to cause any compliance certificate delivered under this Credit Agreement to be delivered to each Lender in accordance with §15.12 and in any event on the incurrence and application of proceeds of same day or the Business Day following the day such Permitted Refinancing (2) using an interest rate equal to compliance certificate is received by the weighted average interest rate of all such Senior Debt outstanding after giving effect to the incurrence of the Permitted Refinancing Indebtedness and the application of the proceeds therefrom);Administrative Agent.

Restrictions on Indebtedness. The Except with the prior written consent of Requisite Lenders, the Borrower shall will not directly or indirectly create, incur, issue, assume, permit, suffer to exist or otherwise be guarantee or become liable with respect toor remain liable, contingently or otherwise (collectivelyotherwise, “incur”), any Indebtedness; provided, however, that the Borrower may incur or agree not to do any of the following items of Indebtednesssame, with respect to any Indebtedness other than: (a) Indebtedness existing to the Lenders arising under this Agreement, Indebtedness to the lenders under the Initial Senior Bond Indentures in an amount not Revolving Credit Agreement, Indebtedness to exceed the amount of Indebtedness outstanding BankBoston arising under the Initial Senior Bond Indentures as BankBoston Term Loan and Indebtedness to the holders of the date of the Fifth Omnibus AmendmentUnsecured Term Notes arising thereunder; (b) Permitted Refinancing Indebtedness current liabilities of the Borrower incurred in exchange forthe ordinary course of business but not incurred through (i) the borrowing of money, or (ii) the net proceeds obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services; (c) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of SECTION 7.4; (d) Indebtedness in respect of judgments or awards that have been in force for less than the applicable period for taking an appeal so long as execution is not levied thereunder or in respect of which are the Borrower shall at the time in good faith be prosecuting an appeal or proceedings for review and in respect of which a stay of execution shall have been obtained pending such appeal or review; (e) Endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business; (f) Indebtedness consisting of purchase money financing for equipment used to renew, refund, refinance, replace, defease or discharge any in the ordinary course of Borrower's business provided that the amount of each such financing may not exceed 100% of the cost of the purchased property. (g) Nonrecourse Indebtedness of Borrower secured by a Lien on a Portfolio Property (other than intercompany IndebtednessWoodbury Common for so long as SECTION 8.1 remains in effect) that was permitted which is completely non-recourse to be incurred under clause (a)the Borrower and to the REIT to the extent the same does not create a violation of SECTIONS 9.4, (b) or (c) of this Section 2.59.5, 9.6 OR 9.7 provided that each (i) upon the creation or assumption of any such Indebtedness Borrower shall provide the Agent with a notice describing the terms of such Indebtedness and the security therefor and a copy of the following conditions shall have been satisfied: (1) promissory note or other instrument containing the Senior Facility Agent shall have received a certificate from an Authorized Officer of the Borrower to the effect that the outstanding Senior Debt (other than Working Capital Debt and Indebtedness incurred pursuant to clauses (f), (g), (h), (i), (j), (k), (l), (m)nonrecourse provisions, and (oii) if the terms of this Section 2.5such Indebtedness include financial covenants, such covenants are determined by the Agent in its sole discretion to be less stringent than the covenants set forth in ARTICLE IX. (h) (after giving effect Indebtedness of Borrower other than Nonrecourse Indebtedness for borrowed money to the incurrence and application extent the same does not create a violation of proceeds SECTIONS 9.4, 9.5, 9.6 OR 9.7 provided that (i) upon the creation or assumption of any such Indebtedness Borrower shall provide the Agent with a notice describing the terms of such Permitted RefinancingIndebtedness, (ii) such Indebtedness must be permitted under the terms of the Unsecured Term Notes, (iii) if the terms of such Indebtedness include financial covenants such covenants are determined by the Agent, in its sole discretion, to be not more stringent than the covenants set forth in ARTICLE IX, and (iv) except for facilities having BankBoston as sole lender or as agent for a group of lenders, such Indebtedness has a term which matures at least twenty-four (24) months after the Termination Date. (2i) using an interest rate equal Indebtedness consisting of purchase money financing for Land intended for development in connection with future Construction Projects to the weighted average interest rate extent the same does not create a violation of all SECTIONS 9.4, 9.5, 9.6 OR 9.7 provided that (i) the amount of such Senior Debt Indebtedness does not exceed 100% of the cost of the purchased Land, (ii) the Indebtedness is secured by a Lien on the purchased Land, (iii) the aggregate amount of the Indebtedness described in this paragraph outstanding after giving effect at any time shall not exceed $15,000,000.00, and (iv) upon the creation of any such Indebtedness Borrower shall provide the Agent with a notice describing the terms of such Indebtedness. (j) Indebtedness of Borrower related to the incurrence Indebtedness of any Simon Partnership to the Permitted Refinancing Indebtedness and extent the application same does not create a violation of the proceeds therefrom);SECTION

Restrictions on Indebtedness. The Borrower shall not directly or indirectly Borrowers and the Guarantors may, and may permit their respective Subsidiaries to, create, incur, issue, assume, permit, suffer to exist guarantee or otherwise be or become remain liable with respect tofor, contingently or otherwise (collectively, “incur”)otherwise, any Indebtedness; provided, however, that the Borrower may incur any of the following items of IndebtednessIndebtedness other than: (a) Indebtedness existing (excluding the Obligations) which is incurred under the Initial Senior Bond Indentures in an amount not to exceed the amount a revolving credit facility or line of Indebtedness outstanding under the Initial Senior Bond Indentures as of the date of the Fifth Omnibus Amendmentcredit with another financial institution; (b) Permitted Refinancing Indebtedness which would result in a Default or Event of the Borrower in exchange for, Default under §10 hereof or the net proceeds under any other provision of which are used to renew, refund, refinance, replace, defease or discharge any Indebtedness (other than intercompany Indebtedness) that was permitted to be incurred under clause (a), (b) or this Credit Agreement; (c) An aggregate amount in excess of this Section 2.5$1,000,000 at any one time in respect of taxes, provided that each assessments, governmental charges or levies and claims for labor, materials and supplies for which payment therefor is required to be made in accordance with the provisions of §8.9 and has not been timely made; (d) An aggregate amount in excess of $1,000,000 at any one time in respect of uninsured judgments or awards, with respect to which the following conditions shall applicable periods for taking appeals have expired, or with respect to which final and unappealable judgments or awards have been satisfied:rendered; and (1e) Current unsecured liabilities incurred in the Senior Facility Agent shall have received a certificate from an Authorized Officer ordinary course of the Borrower to the effect that the outstanding Senior Debt business, which (other i) are overdue for more than Working Capital Debt and Indebtedness incurred pursuant to clauses sixty (f)60) days, (g), (h), (i), (j), (k), (l), (m)ii) exceed $1,000,000 in the aggregate at any one time, and (oiii) are not being contested in good faith. For the avoidance of doubt, the terms and provisions of this Section 2.5) (§9.1 are in addition to, and not in limitation of, the covenants set fxxxx xx §00 of this Credit Agreement. Notwithstanding anything contained herein to the contrary, the Borrowers and the Guarantors will not, and will not permit any Subsidiary to, incur any Indebtedness for borrowed money which, together with other Indebtedness for borrowed money incurred by any Borrower, any Guarantor, and any Subsidiary since the date of the most recent compliance certificate delivered to the Administrative Agent in accordance with this Credit Agreement, exceeds $5,000,000 in the aggregate unless the Borrowers shall have delivered a compliance certificate in the form of Exhibit D-4 hereto to the Administrative Agent evidencing covenant compliance at the time of delivery of the certificate and on a pro-forma basis after giving effect to such proposed Indebtedness. The Administrative Agent will use good faith efforts to cause any compliance certificate delivered under this Credit Agreement to be delivered to each Lender in accordance with §15.12 and in any event on the incurrence and application of proceeds of same day or the Business Day following the day such Permitted Refinancing (2) using an interest rate equal compliance certificate is received by the Administrative Agent. To the extent not already a party to the weighted average interest rate Intercreditor Agreement, the Borrowers will cause each holder of all such Senior Debt outstanding after giving effect Indebtedness for borrowed money of the Borrowers which is a beneficiary of a Guaranty by a Subsidiary Guarantor, to sign and deliver to the incurrence of Administrative Agent a joinder to the Permitted Refinancing Indebtedness and the application of the proceeds therefrom);Intercreditor Agreement.

Restrictions on Indebtedness. The Borrower shall not directly or indirectly createwill not, nor will it permit any Subsidiary of Borrower to, issue, incur, issue, assume, permitcreate, suffer to exist or otherwise be or become liable with respect tofor, contingently or otherwise (collectivelyotherwise, “incur”), or have outstanding any Indebtedness; provided, however, that the foregoing provisions shall not restrict nor operate to prevent the following Indebtedness, so long as the incurrence and maintenance of such Indebtedness would not cause the Borrower may incur any to be in violation of Section 7.17 hereof if compliance with such covenant were measured on the date of the following items incurrence of such Indebtedness: (a) the Obligations; (b) Non-Recourse Indebtedness existing of any Project Finance Subsidiary; (c) so long as the Borrower would be in compliance with Section 7.17 hereof (calculated as of the date of, and after giving affect to, the incurrence of such Indebtedness), secured Indebtedness (excluding Indebtedness of the type described in (e), (f), and (g) below but including the pledge of stock or similar equity interest of any Project Finance Subsidiary or any Subsidiary which is an entity whose sole purpose and extent of business activities is to own the stock or similar equity interest of a Project Finance Subsidiary) (A) set forth on Schedule 7.15(b) hereto (and, with respect to the “Black Hills Corporation lease payment obligation on the Wygen I facility” described thereon, extensions and refinancings of such facility which do not increase the principal amount thereof), (B) (i) of BHP, (ii) evidencing the deferred purchase price of newly acquired property or incurred to finance the acquisition of personal property of the Borrower or a Subsidiary of the Borrower used in the ordinary course of business of the Borrower or Subsidiary, (iii) constituting Capitalized Lease Obligations or with respect to synthetic (or similar type) lease arrangements, or (iv) incurred in connection with the performance of tenders, statutory obligations, bids, leases or other similar obligations (other than for borrowed money) entered into in the ordinary course of business or to secure obligations on performance bonds; provided, that the aggregate amount of Indebtedness permitted by this clause (B) at any time outstanding shall not exceed 5% of Consolidated Assets as reflected on the most recent balance sheet delivered by the Borrower pursuant to Section 7.6, provided that Borrower shall promptly provide the Administrative Agent with a copy of any documentation evidencing such Indebtedness in excess of $25,000,000 and any modification to such Indebtedness, and (C) of CLF&P outstanding under the Initial Senior Bond Indentures CLF&P Indenture; (d) so long as the Borrower would be in compliance with Section 7.17 hereof (calculated as of the date of, and after giving affect to, the incurrence of such Indebtedness), other Indebtedness (excluding Indebtedness of the type described in (e), (f), and (g) below) which is unsecured and either junior in right of payment to the Obligations or pari passu to the Obligations or is equally and ratably secured with the Obligations, provided that Borrower shall promptly provide the Administrative Agent with a copy of any documentation evidencing such Indebtedness in excess of $25,000,000 and any modification to such Indebtedness; (e) intercompany loans (i) from (x) Subsidiary to Borrower so long as such loans are subordinated to the Obligations on terms reasonably satisfactory to the Administrative Agent, and (y) Borrower to a Subsidiary of Borrower, (ii) among Wholly-Owned Subsidiaries, and (iii) from a Subsidiary of Borrower to a Marketing Subsidiary, so long as the aggregate amount of such loans from time to time owing by the Marketing Subsidiaries does not exceed the difference between (I) the Marketing Subsidiary Sublimit, less (II) the sum of (A) the aggregate amount of Guaranties outstanding pursuant to Section 7.15(f), and (B) the aggregate amount of other Investments then made in the Marketing Subsidiaries pursuant to Section 7.14(o)(ii) (it being understood that to the extent such limit is exceeded solely as a result of an increase in the value of any such Investment attributable to the undistributed net earnings of the Marketing Subsidiaries, it shall not be deemed a violation of this Section 7.15(e)); (f) Indebtedness consisting of Guaranties of the Indebtedness of the Marketing Subsidiaries (including Long-Term Guaranties), provided that such Indebtedness shall only be permitted to the extent the aggregate amount of such Indebtedness, when added to the sum of (i) the aggregate amount of all intercompany loans made to the Marketing Subsidiaries pursuant to Section 7.15(e), plus (ii) the aggregate amount of all other Investments made in Marketing Subsidiaries pursuant to Section 7.14(o)(ii), plus (iii) the aggregate amount of “L/C Obligations” outstanding attributable to “Marketing Subsidiary Letter of Credit” (as such terms are defined in the Existing Credit Agreement)does not exceed the Marketing Subsidiary Sublimit (it being understood that to the extent such limit is exceeded solely as a result of an increase in the value of any such Investment attributable to the undistributed net earnings of the Marketing Subsidiaries, it shall not be deemed a violation of this Section 7.15(f)) provided, further that Borrower shall promptly provide the Administrative Agent with a copy of any such Guarantee and any modification to such Guarantee; (g) Indebtedness of the Marketing Subsidiaries under the Marketing Subsidiary Excluded Credit Facility in an aggregate amount not to exceed the amount of Marketing Subsidiary Indebtedness outstanding under the Initial Senior Bond Indentures as of the date of the Fifth Omnibus AmendmentLimit; (b) Permitted Refinancing Indebtedness of the Borrower in exchange for, or the net proceeds of which are used to renew, refund, refinance, replace, defease or discharge any Indebtedness (other than intercompany Indebtedness) that was permitted to be incurred under clause (a), (b) or (c) of this Section 2.5, provided that each of the following conditions shall have been satisfied: (1) the Senior Facility Agent shall have received a certificate from an Authorized Officer of the Borrower to the effect that the outstanding Senior Debt (other than Working Capital Debt and Indebtedness incurred pursuant to clauses (f), (g), (h), (i), (j), (k), (l), (m), and (o) of this Section 2.5) (after giving effect to the incurrence and application of proceeds of such Permitted Refinancing (2) using an interest rate equal to the weighted average interest rate of all such Senior Debt outstanding after giving effect to the incurrence of the Permitted Refinancing Indebtedness and the application of the proceeds therefrom);

Restrictions on Indebtedness. The Borrower shall Except as permitted in §8.1(f) below, the Trust will not directly or indirectly (other than solely as a result of its status as a general partner of the Borrower) create, incur, issue, assume, permit, suffer to exist guarantee or otherwise be or become liable with respect toremain liable, contingently or otherwise (collectively, “incur”), with respect to any Indebtedness; provided, however, that Indebtedness other than the Obligations and any Indebtedness of the Borrower may incur permitted under the terms of this §8. 1. The Borrower will not, and will not permit any of the following items of Indebtednessits Subsidiaries to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than: (a) Indebtedness existing to the Banks arising under the Initial Senior Bond Indentures in an amount not to exceed the amount of Indebtedness outstanding under the Initial Senior Bond Indentures as any of the date Loan Documents, and Indebtedness and obligations in respect of the Fifth Omnibus AmendmentInterest Rate Contract(s) required pursuant to §7.18; (b) Permitted Refinancing current liabilities of the Borrower or its Subsidiaries incurred in the ordinary course of business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services; (c) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8; (d) Indebtedness in respect of judgments or awards the existence of which does not create an Event of Default; (e) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business; (f) subject to the provisions of §9, (i) Non-recourse Indebtedness of the Borrower in exchange for, or the net proceeds any of which are used to renew, refund, refinance, replace, defease or discharge any Indebtedness its Subsidiaries (other than intercompany Indebtedness) that was permitted to be incurred under clause (a), (b) or (c) of this Section 2.5, provided that each of the following conditions shall have been satisfied: (1) the Senior Facility Agent shall have received a certificate from an Authorized Officer of the Borrower to the effect that the outstanding Senior Debt (other than Working Capital Debt and Indebtedness incurred pursuant to clauses (f), (g), (h), (i), (j), (k), (l), (mSubsidiary Guarantors), and (oii) Indebtedness of Borrower, the Trust or any of the Borrower’s Subsidiaries (other than Subsidiary Guarantors) under environmental indemnities and guarantees with respect to customary exceptions to exculpatory language with respect to Non-recourse Indebtedness of Borrower’s Subsidiaries or Unconsolidated Affiliates permitted pursuant to §8.3(i) (it being agreed that any such indemnity or guaranty shall not cause such Non-recourse Indebtedness to be deemed to be Recourse Indebtedness and provided that in the event any claim is made against Borrower, the Trust or any of their respective Subsidiaries with respect to such indemnities, guarantees or exceptions, the amount so claimed shall be considered a recourse liability of such Person); (g) Indebtedness in respect of reverse repurchase agreements having a term of not more than one hundred eighty (180) days with respect to Investments described in §8.3(d) or (e); (h) subject to the provisions of §9, other Recourse Indebtedness (whether secured or unsecured) of this Section 2.5the Borrower and its Subsidiaries (other than Subsidiary Guarantors) provided that in no event shall such Recourse Indebtedness (after giving effect excluding the Obligations) in the aggregate exceed twenty percent (20%) of Consolidated Total Adjusted Asset Value (provided that the liability under any completion guaranty shall equal the remaining costs to complete the applicable construction project in excess of construction loan or mezzanine loan proceeds available therefor and any equity deposited or invested for the payment of such costs; and provided further that Indebtedness of Borrower or any of its Subsidiaries with respect to the incurrence TIF Guaranty and application any other guaranty obligation which the Majority Banks may in their sole discretion approve in writing shall not be included for the purposes of proceeds §8.1(h) unless (i) a claim shall have been made against the Trust, Borrower or a Subsidiary of either of them on account of such Permitted Refinancingguaranty or (ii) with respect to any other guaranty obligation which the Majority Banks may in their sole discretion approve in writing to not be included for the purposes of §8.1(h), the occurrence of such other events with respect thereto as the Majority Banks may require in connection with their approval of such obligation); and (2i) using an interest rate equal to Indebtedness in respect of purchase money financing for equipment, computers and vehicles acquired in the weighted average interest rate of all such Senior Debt outstanding after giving effect to the incurrence ordinary course of the Permitted Refinancing Indebtedness and the application of the proceeds therefrom);Borrower’s business not exceeding $5,000,000.00.

Restrictions on Indebtedness. The Borrower shall will not directly or indirectly permit any of its Subsidiaries to create, incur, issue, assume, permit, suffer to exist or otherwise be or become liable with respect toremain liable, contingently or otherwise (collectivelyotherwise, “incur”), with respect to any Indebtedness; provided, howeveror to become or be responsible in any manner (whether by agreement to purchase any obligations, that stock, assets, goods or services, or to supply or advance any funds, assets, goods or services or otherwise) with respect to any Indebtedness, in each case, of any other Person other than the Borrower may incur or any of the following items of Indebtednessits Subsidiaries, other than: (a) Indebtedness of the Borrower’s Subsidiaries listed in Schedule 8.1(a), any extension, renewal or refinancing of such Indebtedness and any additional bonds issued and Capital Leases entered into from time to time after the Effective Date; provided that (i) if such Indebtedness is an extension, renewal or refinancing of existing under Indebtedness, the Initial Senior Bond Indentures terms and conditions of any such extensions, renewals or refinancings shall not increase the relative priority of such Indebtedness over the priority of the original Indebtedness, and (ii) in an amount not to exceed no event shall the aggregate outstanding principal amount of Indebtedness outstanding under permitted by this §8.1(a) exceed the Initial Senior Bond Indentures as aggregate principal amount of the date of Indebtedness listed on Schedule 8.1(a) that is outstanding on the Fifth Omnibus Amendment;Effective Date (plus transaction costs, including premiums and fees, related thereto); and (b) Permitted Refinancing other Indebtedness of the Borrower’s Subsidiaries (other than of the Guarantor) provided that the sum (without duplication) of (i) the aggregate outstanding principal amount of Indebtedness permitted under this §8.1(b), plus (ii) the aggregate outstanding principal amount of secured Indebtedness of the Borrower in exchange for, or the net proceeds of which are used to renew, refund, refinance, replace, defease or discharge any Indebtedness (other than intercompany Indebtedness) that was and its Subsidiaries permitted to be incurred under clause (a), (b) or (c) of this Section 2.5, provided that each of the following conditions shall have been satisfied: (1) the Senior Facility Agent shall have received a certificate from an Authorized Officer of the Borrower to the effect that the outstanding Senior Debt (other than Working Capital Debt and Indebtedness incurred pursuant to clauses (f), (g), (h), (i), (j), subsections (k), (l) and (m) of the definition of “Permitted Liens”, plus (iii) the aggregate amount of Indebtedness with respect to outstanding Permitted Receivables Transactions (determined in accordance with the proviso to the definition of “Indebtedness”), (m), and (o) shall not exceed 15% of this Section 2.5) (after giving effect to the incurrence and application of proceeds of such Permitted Refinancing (2) using an interest rate equal to the weighted average interest rate of all such Senior Debt outstanding after giving effect to the incurrence of the Permitted Refinancing Indebtedness and the application of the proceeds therefrom);Consolidated Tangible Assets at any time.

Restrictions on Indebtedness. The Borrower None of the Borrowers nor any of their Subsidiaries shall not directly become or indirectly be a guarantor or surety of, or otherwise create, incur, issue, assume, permit, suffer to exist or otherwise be or become liable with respect toremain liable, contingently or otherwise (collectivelyotherwise, “incur”), with respect to any Indebtedness; provided, howeveror become or be responsible in any manner (whether by agreement to purchase any obligations, that the Borrower may stock, assets, goods or services, or to supply or advance any funds, assets, goods or services or otherwise) with respect to any undertaking or Indebtedness of any other Person, or incur any of the following items of IndebtednessIndebtedness other than: (a) Indebtedness existing to the Lender arising under this Agreement or the Initial Senior Bond Indentures in an amount not to exceed the amount of Indebtedness outstanding under the Initial Senior Bond Indentures as of the date of the Fifth Omnibus AmendmentLoan Documents; (b) Permitted Refinancing Indebtedness of the Borrower Borrowers in exchange for, respect of judgments or awards which have been in force for less than the net proceeds applicable period for taking an appeal so long as execution is not levied thereunder or in respect of which are used to renew, refund, refinance, replace, defease any Borrower shall at the time in good faith be prosecuting an appeal or discharge any Indebtedness (other than intercompany Indebtedness) that was permitted to be incurred under clause (a), (b) proceedings for review and in respect of which a stay of execution shall have been obtained pending such appeal or review and in respect of which the Borrowers have maintained adequate reserves; (c) Indebtedness of this Section 2.5any Borrower with respect to guaranty, provided that each suretyship or indemnification obligations in connection with such Borrower's performance of services for its respective customers in the ordinary course of its business, such Indebtedness to be listed on SCHEDULE 7.1(C) hereto; (d) Indebtedness of the following conditions shall have been satisfied:Borrowers incurred with respect to landfill closure bonds, such bonds to be listed on SCHEDULE 7.1(D) hereto, not to exceed an aggregate amount of $5,000,000 outstanding at any time. (1e) the Senior Facility Agent shall have received a certificate from an Authorized Officer Other Indebtedness of the Borrower Borrowers not to the effect that the outstanding Senior Debt (other than Working Capital Debt and Indebtedness incurred pursuant to clauses (f), (g), (h), (i), (j), (k), (l), (m), and (o) exceed an aggregate amount of this Section 2.5) (after giving effect to the incurrence and application of proceeds of such Permitted Refinancing (2) using an interest rate equal to the weighted average interest rate of all such Senior Debt outstanding after giving effect to the incurrence of the Permitted Refinancing Indebtedness and the application of the proceeds therefrom);$5,000,000 at any one time; and

Restrictions on Indebtedness. The Such Borrower shall will not directly or indirectly create, incur, issue, assume, permit, suffer to exist guarantee or otherwise be or become liable remain liable, contingently or otherwise, with respect to, contingently or otherwise any Indebtedness (collectively, “incur”excluding accounts payable arising in the ordinary course and for fair value received), any Indebtedness; provided, however, that the Borrower may incur any of the following items of Indebtednessother than: (a) Indebtedness existing to the Lenders and the Administrative Agent arising under the Initial Senior Bond Indentures in an amount not to exceed the amount of Indebtedness outstanding under the Initial Senior Bond Indentures as any of the date of Loan Documents, including the Fifth Omnibus AmendmentGuaranty; (b) Permitted Refinancing Indebtedness endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the Borrower in exchange for, or the net proceeds ordinary course of which are used to renew, refund, refinance, replace, defease or discharge any Indebtedness (other than intercompany Indebtedness) that was permitted to be incurred under clause (a), (b) or business; (c) Subordinated Debt; (d) Indebtedness existing on the date hereof and listed and described on Schedule 9.1 hereto, and extensions, renewals or replacements of this Section 2.5any such Indebtedness that do not increase the outstanding principal amount thereof; (e) Indebtedness of any Obligor to any other Obligor; or Guarantees by any Obligor of Indebtedness of any other Obligor; (f) Indebtedness of any Obligor to any Subsidiary of LTI that is not an Obligor or of any Subsidiary of LTI that is not an Obligor to any Obligor, provided, such Indebtedness shall not exceed $5,000,000 in the aggregate; (g) Guarantees by any Obligor of Indebtedness of any Subsidiary of LTI that is not an Obligor, and Guarantees by any Subsidiary of LTI that is not an Obligor of Indebtedness of any Obligor; provided such guarantees shall not exceed $5,000,000 in the aggregate; (h) purchase money Indebtedness incurred by any Borrower or any Subsidiary thereof in connection with Consolidated Capital Expenditures and/or Consolidated Capital Leases, and extensions, renewals and replacement of any such Indebtedness that each do not increase the outstanding principal amount thereof, so long as such Indebtedness does not exceed the value of the following conditions shall have been satisfied:assets so financed; and (i) Indebtedness of any Person that becomes a Subsidiary of such Borrower after the date hereof, so long as (1) such Indebtedness exists at the Senior Facility Agent shall have received time such Person becomes a certificate from an Authorized Officer Subsidiary and is not created in contemplation of the Borrower to the effect that the outstanding Senior Debt (other than Working Capital Debt or in connection with such Person becoming a Subsidiary and Indebtedness incurred pursuant to clauses (f), (g), (h), (i), (j), (k), (l), (m), and (o) of this Section 2.5) (after giving effect to the incurrence and application of proceeds of such Permitted Refinancing (2) using an interest rate equal to the weighted average interest rate aggregate principal amount of all Indebtedness permitted by this clause (i) shall not exceed $5,000,000 at any time outstanding and (iii) such Senior Debt outstanding after giving effect to the incurrence Indebtedness has been subordinated in favor of the Permitted Refinancing Indebtedness Lenders on terms and the application of the proceeds therefrom);conditions acceptable to Lenders.

Restrictions on Indebtedness. The Such Borrower shall will not, and will not directly or indirectly permit any of its Subsidiaries to, create, incur, issue, assume, permit, suffer to exist guarantee or otherwise be or become liable with respect toremain liable, contingently or otherwise (collectivelyotherwise, “incur”), with respect to any Indebtedness; provided, however, that the Borrower may incur any of the following items of IndebtednessIndebtedness other than: (a) Indebtedness existing to the Banks and the Agent arising under the Initial Senior Bond Indentures in an amount not to exceed the amount of Indebtedness outstanding under the Initial Senior Bond Indentures as any of the date of the Fifth Omnibus AmendmentLoan Documents; (b) Permitted Refinancing current liabilities of such Borrower or such Subsidiary incurred in the ordinary course of business not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services; (c) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of ss.8.8; (d) Indebtedness in respect of judgments or awards that have been in force for less than the applicable period for taking an appeal so long as execution is not levied thereunder or in respect of which such Borrower or such Subsidiary shall at the time in good faith be prosecuting an appeal or proceedings for review and in respect of which a stay of execution shall have been obtained pending such appeal or review; (e) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business; (f) obligations under Capitalized Leases not exceeding $6,000,000 in aggregate amount at any time outstanding; (g) Indebtedness incurred after the date hereof in connection with the acquisition of any real or personal property by such Borrower or such Subsidiary, provided that the aggregate principal amount of such Indebtedness of the Borrowers and their Subsidiaries shall not exceed the aggregate amount of $3,000,000 at any one time; (h) Indebtedness existing on the date hereof and listed and described on Schedule 9.1 hereto; (i) Indebtedness of a Subsidiary of any Borrower in exchange forexisting on the Closing Date to such Borrower, so long as such Subsidiary is a Borrower hereunder or prior to the net proceeds of which are used to renew, refund, refinance, replace, defease or discharge any Indebtedness (other than intercompany Indebtedness) that was permitted to be incurred under clause (a), (b) or (c) of this Section 2.5, provided that each date of the following incurrence or existence of such Indebtedness such Subsidiary becomes a guarantor of all the Obligations hereunder on terms and conditions shall have been satisfied: (1) the Senior Facility Agent shall have received a certificate from an Authorized Officer of the Borrower satisfactory to the effect that the outstanding Senior Debt (other than Working Capital Debt and Indebtedness incurred pursuant to clauses (f), (g), (h), (i), (j), (k), (l), (m), and (o) of this Section 2.5) (after giving effect to the incurrence and application of proceeds of such Permitted Refinancing (2) using an interest rate equal to the weighted average interest rate of all such Senior Debt outstanding after giving effect to the incurrence of the Permitted Refinancing Indebtedness and the application of the proceeds therefrom)Agent;

Restrictions on Indebtedness. The Borrower shall Except as permitted in §8.1(f) below, the Trust will not directly or indirectly (other than solely as a result of its status as a general partner of the Borrower) create, incur, issue, assume, permit, suffer to exist guarantee or otherwise be or become liable with respect toremain liable, contingently or otherwise (collectively, “incur”), with respect to any Indebtedness; provided, however, that Indebtedness other than the Obligations and any Indebtedness of the Borrower may incur permitted under the terms of this §8. 1. The Borrower will not, and will not permit any of the following items of Indebtednessits Subsidiaries to, create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness other than: (a) Indebtedness existing to the Banks arising under the Initial Senior Bond Indentures in an amount not to exceed the amount of Indebtedness outstanding under the Initial Senior Bond Indentures as any of the date Loan Documents, and Indebtedness and obligations in respect of the Fifth Omnibus AmendmentInterest Rate Contract(s) required pursuant to §7.18; (b) Permitted Refinancing current liabilities of the Borrower or its Subsidiaries incurred in the ordinary course of business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services; (c) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8; (d) Indebtedness in respect of judgments or awards the existence of which does not create an Event of Default; (e) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business; (f) subject to the provisions of §9, (i) Non-recourse Indebtedness of the Borrower in exchange for, or the net proceeds any of which are used to renew, refund, refinance, replace, defease or discharge any Indebtedness its Subsidiaries (other than intercompany Indebtedness) that was permitted to be incurred under clause (a), (b) or (c) of this Section 2.5, provided that each of the following conditions shall have been satisfied: (1) the Senior Facility Agent shall have received a certificate from an Authorized Officer of the Borrower to the effect that the outstanding Senior Debt (other than Working Capital Debt and Indebtedness incurred pursuant to clauses (f), (g), (h), (i), (j), (k), (l), (mSubsidiary Guarantors), and (oii) Indebtedness of Borrower, the Trust or any of the Borrower’s Subsidiaries (other than Subsidiary Guarantors) under environmental indemnities and guarantees with respect to customary exceptions to exculpatory language with respect to Non-recourse Indebtedness of Borrower’s Subsidiaries or Unconsolidated Affiliates permitted pursuant to §8.3(i) (it being agreed that any such indemnity or guaranty shall not cause such Non-recourse Indebtedness to be deemed to be Recourse Indebtedness and provided that in the event any claim is made against Borrower, the Trust or any of their respective Subsidiaries with respect to such indemnities, guarantees or exceptions, the amount so claimed shall be considered a recourse liability of such Person); (g) Indebtedness in respect of reverse repurchase agreements having a term of not more than one hundred eighty (180) days with respect to Investments described in §8.3(d) or (e); (h) subject to the provisions of §9, other Recourse Indebtedness (whether secured or unsecured) of this Section 2.5the Borrower and its Subsidiaries provided that in no event shall Secured Recourse Indebtedness of Borrower in the aggregate exceed fifteen percent (15%) of Consolidated Total Adjusted Asset Value (after giving effect provided that the liability under any completion guaranty shall equal the remaining costs to complete the applicable construction project in excess of construction loan or mezzanine loan proceeds available therefor and any equity deposited or invested for the payment of such costs; and provided further that Indebtedness of Borrower or any of its Subsidiaries with respect to the incurrence TIF Guaranty and application any other guaranty obligation which the Majority Banks may in their sole discretion approve in writing shall not be included for the purposes of proceeds §8.1(h) unless (i) a claim shall have been made against the Trust, Borrower or a Subsidiary of either of them on account of such Permitted Refinancingguaranty or (ii) with respect to any other guaranty obligation which the Majority Banks may in their sole discretion approve in writing to not be included for the purposes of §8.1(h), the occurrence of such other events with respect thereto as the Majority Banks may require in connection with their approval of such obligation). The Subsidiary Guarantors may be liable with respect to Unsecured Indebtedness of the Borrower but not Secured Indebtedness; and (2i) using an interest rate equal to Indebtedness in respect of purchase money financing for equipment, computers and vehicles acquired in the weighted average interest rate of all such Senior Debt outstanding after giving effect to the incurrence ordinary course of the Permitted Refinancing Indebtedness and the application of the proceeds therefrom);Borrower’s business not exceeding $5,000,000.00.

Restrictions on Indebtedness. The Borrower shall Borrowers will not directly or indirectly create, incur, issue, assume, permit, suffer to exist guarantee or otherwise be or become liable with respect toremain liable, contingently or otherwise (collectivelyotherwise, “incur”), with respect to any Indebtedness; provided, however, that the Borrower may incur any of the following items of IndebtednessIndebtedness other than: (a) Indebtedness existing to the Lenders arising under the Initial Senior Bond Indentures in an amount not to exceed the amount of Indebtedness outstanding under the Initial Senior Bond Indentures as any of the date of the Fifth Omnibus AmendmentLoan Documents; (b) Permitted Refinancing current liabilities of the Borrowers incurred in the ordinary course of business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services; (c) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8; (d) Indebtedness in respect of judgments only to the extent, for the period and for an amount not resulting in an Event of Default; (e) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business; (f) Indebtedness of the Parent Borrower in exchange forconnection with completion and similar guaranties in an aggregate amount at any one time not in excess of the greater of (i) $175,000,000 or (ii) fifteen percent (15%) of the Gross Asset Value; (g) Other Indebtedness of the Parent Borrower, the REIT or the net proceeds any of which are used to renew, refund, refinance, replace, defease or discharge any Indebtedness their Subsidiaries (other than intercompany Indebtedness) that was permitted to be incurred under clause (aany Subsidiary Borrower), (b) or (c) of this Section 2.5, provided that each none of such Persons shall incur any of the following conditions Indebtedness described in this §8.1(g) unless it shall have been satisfied: (1) provided to the Senior Facility Agent shall have received a certificate from an Authorized Officer prior written notice of the Borrower to the effect proposed incurrence of such Indebtedness, a statement that the outstanding Senior Debt (other than Working Capital Debt borrowing will not cause a Default or Event of Default and Indebtedness incurred pursuant a Compliance Certificate demonstrating that the Borrowers will be in compliance with its covenants referred to clauses (f), (g), (h), (i), (j), (k), (l), (m), and (o) of this Section 2.5) (after giving effect to the incurrence and application of proceeds of such Permitted Refinancing (2) using an interest rate equal to the weighted average interest rate of all such Senior Debt outstanding therein after giving effect to the incurrence of such Indebtedness; (h) Derivatives Contracts (including Approved Derivatives Contracts) reasonably acceptable to Agent sufficient to ensure the Permitted Refinancing Indebtedness and Borrowers’ compliance with §9.7; and (i) the application 2014 Term Loan Agreement. (j) Notwithstanding anything in this Agreement to the contrary, (i) none of the proceeds therefrom);Indebtedness described in §8.1(g) above shall have any of the Eligible Real Estate Assets or any interest therein or any direct or indirect ownership interest in any Subsidiary Borrower as collateral, a borrowing base, asset pool or any similar form of credit support for such Indebtedness (provided that the foregoing shall not preclude Subsidiaries of the Borrowers (other than a Subsidiary Borrower) from incurring Indebtedness subject to the terms of this §8.1 or recourse to the general credit of Parent Borrower) and (ii) none of the Subsidiary Borrowers, Parent Borrower nor REIT shall create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness (including, without limitation, pursuant to any conditional or limited guaranty or indemnity agreement creating liability with respect to usual and customary exclusions from the non recourse limitations governing the Non-Recourse Indebtedness of any Person, or otherwise) other than Indebtedness described in §8.1(a)-(i) above.

Restrictions on Indebtedness. The Borrower shall Apparel Obligors will not directly or indirectly create, incur, issue, assume, permit, suffer to exist guarantee or otherwise be or become liable with respect toremain liable, contingently or otherwise (collectivelyotherwise, “incur”), with respect to any Indebtedness; provided, however, that Indebtedness other than: Indebtedness to the Borrower may incur Lenders and the Administrative Agent arising under any of the following items Loan Documents; current liabilities of Indebtedness: such Apparel Obligor incurred in the ordinary course of business not incurred through (ai) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services; Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of ss.8.8; Indebtedness in respect of judgments or awards that have been in force for less than the applicable period for taking an appeal so long as execution is not levied thereunder or in respect of which such Borrower or such Subsidiary shall at the time in good faith be prosecuting an appeal or proceedings for review and in respect of which a stay of execution shall have been obtained pending such appeal or review; endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business; obligations under Capitalized Leases not exceeding $2,500,000 in aggregate amount for all Apparel Obligors at any time outstanding; Indebtedness incurred in connection with the acquisition after the date hereof of any real or personal property by such Apparel Obligor, provided that the aggregate principal amount of all such Indebtedness of all Apparel Obligors shall not exceed the aggregate amount of $1,000,000 at any one time; and further, provided that the aggregate amount of indebtedness permitted under this clause (g) and the immediately preceding clause (f) of this ss.9.1 shall not at any time together exceed $2,500,000. Indebtedness of the Guarantor under its License Shoe Guaranty; Indebtedness existing on the date hereof and listed and described on Schedule 9.1 hereto; obligations of any Apparel Obligor under any lease treated as an operating lease; Indebtedness to any Lender under interest rate swap agreements or similar interest rate protection agreements; Indebtedness of the Initial Senior Bond Indentures Guarantor under any guarantee of the obligations of its Subsidiaries provided, that such obligations are incurred in the ordinary course of business and not incurred (i) through the borrowing of money, or (ii) through the obtaining of credit (except for credit on an amount not to exceed the amount open account basis customarily extended and in fact extended in connection with normal purchases of goods and services) or (iii) under Capitalized Leases or under similar financing arrangements; and Indebtedness outstanding under the Initial Senior Bond Indentures of any Apparel Obligor, existing as of the date of Closing Date, in connection with the Fifth Omnibus Amendment; (b) Permitted Refinancing Indebtedness of the Borrower in exchange for, or the net proceeds of which are used to renew, refund, refinance, replace, defease or discharge any Indebtedness (other than intercompany Indebtedness) that was permitted to be incurred under clause (a), (b) or (c) of this Section 2.5, provided that each of the following conditions shall have been satisfied: (1) the Senior Facility Agent shall have received a certificate from an Authorized Officer of the Borrower to the effect that the outstanding Senior Debt (other than Working Capital Debt and Indebtedness incurred pursuant to clauses (f), (g), (h), (i), (j), (k), (l), (m), and (o) of this Section 2.5) (after giving effect to the incurrence and application of proceeds of such Permitted Refinancing (2) using an interest rate equal to the weighted average interest rate of all such Senior Debt outstanding after giving effect to the incurrence of the Permitted Refinancing Indebtedness and the application of the proceeds therefrom);Subordinated Debt.

Restrictions on Indebtedness. The Borrower Neither the Company nor any of its Subsidiaries shall not directly become or indirectly be a guarantor or surety of, or otherwise create, incur, issue, assume, permit, suffer to exist or otherwise be or become liable with respect toremain liable, contingently or otherwise (collectivelyotherwise, “incur”), with respect to any Indebtedness; provided, howeveror become or be responsible in any manner (whether by agreement to purchase any obligations, that the Borrower may stock, assets, goods or services, or to supply or advance any funds, assets, goods or services or otherwise) with respect to any undertaking or Indebtedness of any other Person, or incur any of the following items of IndebtednessIndebtedness other than: (a) Indebtedness existing to the Purchasers hereunder or Indebtedness arising under the Initial Senior Bond Indentures in an amount not to exceed the amount of Indebtedness outstanding under the Initial Senior Bond Indentures as of the date of the Fifth Omnibus Amendment1998 Note Agreement; (b) Permitted Refinancing incurrence by the Company or any of its Subsidiaries of guaranty, suretyship or indemnification obligations in connection with such Person’s performance of services for its respective customers in the ordinary course of its business; (c) incurrence by the Company or any of its Subsidiaries (other than a Designated LLC) of Indebtedness to the Company or to another of its Subsidiaries (other than a Designated LLC); (d) other Indebtedness existing on the date hereof and listed and described on Schedule 6B hereto; (i) purchase money Indebtedness incurred in connection with the acquisition after the Effective Date of any real or personal property or under equipment leases or equipment chattel, (ii) existing Indebtedness of any Subsidiary acquired after the Borrower Effective Date (the “Acquired Subsidiary”) originally incurred by the Acquired Subsidiary in exchange forconnection with the lease or acquisition of property or fixed assets used in the business of the Acquired Subsidiary; or with respect to industrial finance bonds issued to finance the purchase of such property or assets; (iii) Indebtedness with respect to Capitalized Leases; (iv) other unsecured Indebtedness; and (v) Indebtedness with respect to Subordinated Debt; provided that in the event that after the Effective Date any Subsidiary of the Company guaranties any Subordinated Debt, the terms of such guaranty shall provide for the release of such guaranty upon the sale of stock or all or substantially all of the net assets of such Subsidiary (even if such sale was made in a foreclosure); provided that the aggregate amount of such Indebtedness under this subsection (e) shall not exceed .5x EBITDA for the period of four (4) consecutive fiscal quarters most recently ended; (f) Indebtedness with respect to landfill closure bonds of the Company and its Subsidiaries in an aggregate amount not to exceed $5,000,000; (g) Bank Debt in principal amount not to exceed $300,000,000; (h) Indebtedness to the Designated LLCs evidenced by Designated Intercompany Debentures in an aggregate amount not to exceed $100,000,000; and (i) incurrence by a Designated LLC of Indebtedness to the Company or any of it Subsidiaries in an aggregate amount not to exceed $100,000,000, whether in the form of intercompany payables, advances, notes or debentures, each of which, regardless of form, shall be pledged to the Collateral Agent, the proceeds of which are used loaned or contributed as capital to renewa direct or indirect Subsidiary of such Designated LLC, refundwhich Subsidiary is a Guarantor; (j) Guaranty obligations of the Company with respect to undertakings by Xxxxxxx County Disposal, refinanceInc. (or Xxxxxxx County Disposal, replaceLLC as successor to Xxxxxxx County Disposal, defease Inc.) under (i) the Remarketing and Interest Services Agreement by and between Xxxxxxx County Disposal, Inc., the Company and Wachovia Securities, Inc. and (ii) the Bond Purchase Agreement by and among Wachovia Securities, Inc., The Xxxxxxx County Industrial Facilities and Pollution Control Financing Authority, Xxxxxxx County Disposal, Inc. and the Company; provided that if the creation, incurrence, assumption or discharge existence of any Indebtedness (other than intercompany Indebtedness) that was permitted to be incurred would constitute a default or an event of default under clause (a)the Bank Debt, (b) then the creation, incurrence, assumption or (c) of this Section 2.5, provided that each of the following conditions shall have been satisfied: (1) the Senior Facility Agent shall have received a certificate from an Authorized Officer of the Borrower to the effect that the outstanding Senior Debt (other than Working Capital Debt and Indebtedness incurred pursuant to clauses (f), (g), (h), (i), (j), (k), (l), (m), and (o) of this Section 2.5) (after giving effect to the incurrence and application of proceeds existence of such Permitted Refinancing (2) using an interest rate equal to the weighted average interest rate of all such Senior Debt outstanding after giving effect to the incurrence of the Permitted Refinancing Indebtedness and the application of the proceeds therefrom);shall not be permitted hereunder.

Restrictions on Indebtedness. The Borrower shall will not, and will not directly or indirectly permit any of its Subsidiaries to, create, incur, issue, assume, permit, suffer to exist or otherwise be guarantee or become liable with respect toor remain liable, contingently or otherwise (collectivelyotherwise, “incur”), any Indebtedness; provided, however, that the Borrower may incur any of the following items of Indebtednesswith respect to Indebtedness other than: (a) Indebtedness existing to the Lenders and the Administrative Agent arising under the Initial Senior Bond Indentures in an amount not to exceed the amount of Indebtedness outstanding under the Initial Senior Bond Indentures as any of the date of the Fifth Omnibus AmendmentLoan Documents; (b) Permitted Refinancing current liabilities of the Borrower or such Subsidiary incurred in the ordinary course of business not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services; (c) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §6.8 hereof; (d) Indebtedness in respect of judgments or awards that have been in force for less than the applicable period for taking an appeal so long as execution is not levied thereunder or in respect of which the Borrower or such Subsidiary shall at the time in good faith be prosecuting an appeal or proceedings for review and in respect of which a stay of execution shall have been obtained pending such appeal or review; (e) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business; (f) Indebtedness in respect of documentary letters of credit issued in the ordinary course of business; (g) Indebtedness of the Borrower in respect of interest rate protection arrangements and exchange forrate protection arrangements; (h) Indebtedness existing on the Closing Date and listed and described on Schedule 7.1 hereto or any refinancing thereof on substantially similar terms as the Indebtedness being refinanced; (i) Subordinated Debt; (j) obligations under Capitalized Leases; (k) Indebtedness in respect of intercompany loans, guaranties and, so long as no Default or Event of Default shall have occurred and be continuing at the time such Indebtedness is incurred, other Investments and contingent obligations to make Investments, (i) from the Borrower to any of its Subsidiaries or of any of its Subsidiaries’ obligations or (ii) between Subsidiaries of the Borrower or of any of the Borrower’s Subsidiaries’ obligations, or the net proceeds of which are used to renew, refund, refinance, replace, defease or discharge (iii) from any Indebtedness (other than intercompany Indebtedness) that was permitted to be incurred under clause (a), (b) or (c) of this Section 2.5, provided that each of the following conditions shall have been satisfied: (1) the Senior Facility Agent shall have received a certificate from an Authorized Officer Subsidiary of the Borrower to the effect Borrower or of any of the Borrower’s obligations; (l) Indebtedness incurred in connection with the acquisition after the Closing Date of any real or personal property by the Borrower or any Subsidiary of the Borrower as contemplated by §7.2(ix) hereof; (m) Indebtedness secured by a lien on Real Estate of the Borrower or its Subsidiaries; provided that the outstanding Senior Debt aggregate amount of Indebtedness permitted pursuant to this §7.1(m) shall not, at any time, exceed the fair market value of the Real Estate securing such Indebtedness; (n) other than Working Capital Debt Indebtedness of the Borrower and its Subsidiaries (whether or not such Subsidiaries are Guarantors), provided that (i) with respect to Indebtedness incurred pursuant to clauses by the Borrower or a Guarantor, such Indebtedness contains covenants that are no more restrictive on the Borrower or such Guarantor than the covenants contained in this Credit Agreement and (f), (g), (h), (i), (j), (k), (l), (m)ii) immediately after such incurrence of Indebtedness, and after giving effect thereto on a pro forma basis, no Default or Event of Default shall then exist; (o) Indebtedness consisting of this Section 2.5Investments permitted under §7.3(m) (after giving effect to the incurrence and application of proceeds of such Permitted Refinancinghereof; (2p) using an interest rate equal to Indebtedness payable at the weighted average interest rate election of the Borrower by the issuance of the Borrower’s capital stock; and (q) Indebtedness of the Borrower and its Subsidiaries in respect of receivables securitization transactions or other financing of any special purpose receivables Subsidiary of the Borrower, entered into or guaranteed by the Borrower and/or any of its Subsidiaries; provided that, the aggregate amount of all such Senior Debt Indebtedness shall not exceed $300,000,000 outstanding after giving effect at any time. Notwithstanding the foregoing, at no time shall the aggregate amount of Indebtedness of the Borrower and its Subsidiaries consisting of guaranties and other Contingent Liabilities (excluding (i) Indebtedness permitted pursuant to §7.1 to the incurrence extent such Indebtedness (or if such Indebtedness is a Contingent Liability of the Permitted Refinancing Borrower and/or its Subsidiaries, the underlying Indebtedness relating to such Contingent Liability) is included in the calculation of Consolidated Total Funded Debt and (ii) obligations in respect of documentary letters of credit) exceed, in the application aggregate, 15% of the proceeds therefrom);Stockholders’ Equity of the Borrower at such time. For purposes of this Section, the amount of Contingent Liabilities in respect of interest rate protection arrangements and exchange rate protection arrangements permitted under §7.1(g) at any time shall be the net liability of the Borrower and its Subsidiaries under such arrangements at such time, calculated on a basis satisfactory to the Administrative Agent in accordance with accepted practice.

Restrictions on Indebtedness. (a) The Borrower shall not directly or indirectly create, incur, issue, assume, permit, suffer to exist or otherwise be or become liable with respect toto any Indebtedness except for Permitted Indebtedness. (b) For purposes of determining compliance with this Section 5.4, contingently if an item of Indebtedness meets the criteria of more than one of the categories of Permitted Indebtedness, then the Borrower will be permitted to classify or otherwise divide such item of Indebtedness on the date of its incurrence, or later reclassify or redivide all or a portion of such item of Indebtedness, in any manner. (collectivelyc) The accrual of interest, “incur”)the accretion or amortization of original issue discount, and the payment of interest on any IndebtednessIndebtedness in the form of additional Indebtedness with the same terms shall not be deemed to be an incurrence of Indebtedness for purposes of this Section 5.4; provided, howeverin each such case, that the amount of any such accrual, accretion or payment is included in Debt Service as accrued. (d) Notwithstanding anything to the contrary herein, the maximum amount of Indebtedness that the Borrower may incur hereunder shall not be deemed to be exceeded solely as a result of fluctuations in exchange rates or currency values. (e) The amount of any Indebtedness outstanding as of any date which is issued with original issue discount will be the accreted value of such Indebtedness. (f) The amount of any Indebtedness outstanding as of any date (including any classification or division of Indebtedness for purposes of Section 5.4(b)) shall include (i) the aggregate amount of Indebtedness that any outstanding preferred stock may be converted into, whether or not the conditions to such conversion have theretofore occurred, (ii) in respect of Indebtedness of another Person secured by a Lien on the assets of the following items specified Person, the least of Indebtedness: (aA) Indebtedness existing under the Initial Senior Bond Indentures in an amount not to exceed Fair Market Value of such asset on the date of determination and (B) the amount of Indebtedness outstanding under the Initial Senior Bond Indentures as of the date of the Fifth Omnibus Amendment; (b) Permitted Refinancing Indebtedness of the Borrower in exchange for, or other Person; and (iii) the net proceeds of which are used to renew, refund, refinance, replace, defease or discharge any Indebtedness (other than intercompany Indebtedness) that was permitted to be incurred under clause (a), (b) or (c) of this Section 2.5, provided that each principal amount of the following conditions shall have been satisfied: (1) Indebtedness, in the Senior Facility Agent shall have received a certificate from an Authorized Officer case of the Borrower to the effect that the outstanding Senior Debt (any other than Working Capital Debt and Indebtedness incurred pursuant to clauses (f), (g), (h), (i), (j), (k), (l), (m), and (o) of this Section 2.5) (after giving effect to the incurrence and application of proceeds of such Permitted Refinancing (2) using an interest rate equal to the weighted average interest rate of all such Senior Debt outstanding after giving effect to the incurrence of the Permitted Refinancing Indebtedness and the application of the proceeds therefrom);Indebtedness.

Restrictions on Indebtedness. The Borrower shall None of the Borrowers will, and will not directly or indirectly permit any of its Subsidiaries to, create, incur, issue, assume, permit, suffer to exist guarantee or otherwise be or become liable with respect toremain liable, contingently or otherwise (collectivelyotherwise, “incur”), with respect to any Indebtedness; provided, however, that the Borrower may incur any of the following items of IndebtednessIndebtedness other than: (a) Indebtedness existing to the Lenders and the Administrative Agent arising under the Initial Senior Bond Indentures in an amount not to exceed the amount of Indebtedness outstanding under the Initial Senior Bond Indentures as any of the date of the Fifth Omnibus AmendmentLoan Documents; (b) Permitted Refinancing endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business; (c) Indebtedness in respect of any Derivative Contracts in the ordinary course of business; (d) Existing Senior Debt, and refundings, replacements or refinancings thereof; provided that no such refunding or refinancing shall shorten the maturity or weighted average life to maturity or increase the principal amount of any of the Existing Senior Debt; (e) Indebtedness of BGI’s domestic Subsidiaries not to exceed $10,000,000, including such Indebtedness outstanding on the Closing Date; (f) Indebtedness of BGI’s foreign Subsidiaries not to exceed in the aggregate for all such foreign Subsidiaries, ten percent (10%) of Consolidated Total Assets and $50,000,000 in the aggregate for any foreign Subsidiary, including such Indebtedness outstanding on the Closing Date; provided that Indebtedness of foreign Subsidiaries that are party to the Intercreditor Agreement and all of whose lenders are party to the Intercreditor Agreement shall not be included in this calculation; (g) Indebtedness of the Borrower in exchange for, Borrowers or any Subsidiary that constitutes a Synthetic Lease or Capitalized Lease or otherwise incurred to finance the net proceeds acquisition of which are used to renew, refund, refinance, replace, defease fixed or discharge any Indebtedness capital assets (other than intercompany Indebtednesspursuant to Sale Leaseback Transactions referred to in §9.1(n), whether pursuant to a loan, financing lease or otherwise) in an aggregate principal amount not to exceed $30,000,000 at any time outstanding; (h) Indebtedness of the Borrowers or any Subsidiary in respect of Subordinated Debt; (i) Indebtedness of the Borrowers owing to any Subsidiary of such Borrower which is expressly subordinated to the prior payment in full in cash of all Obligations on terms disclosed to and reasonably acceptable to the Administrative Agent prior to the incurrence thereof; (j) Indebtedness of a Person outstanding at the time it is first acquired by any of the Borrowers in an acquisition permitted pursuant to §9.5.1(g), provided that any such Indebtedness was permitted not created at the time of or in contemplation or in anticipation of such acquisition; (k) Indebtedness of any of the Borrowers or any of their Subsidiaries incurred in connection with the issuance of any surety bonds, Performance Letters of Credit or other similar performance bonds required pursuant to be any contractual Obligation or requirement of law to which any of the Borrowers or any of their Subsidiaries are subject in an aggregate principal amount not to exceed $15,000,000 at any time outstanding; (l) additional Indebtedness of the Borrowers not exceeding $35,000,000 less any Indebtedness incurred under clause paragraph (ag), in aggregate principal amount at any one time outstanding; (bm) Indebtedness of Subsidiaries of the Borrowers owing to any other Subsidiaries of the Borrowers or to the Borrowers which results from an Investment permitted under §9.3(g) or (ci); and (n) Indebtedness of this Section 2.5BGI and its domestic Subsidiaries incurred in connection with Sale Leaseback Transactions, provided that each in an aggregate principal amount not to exceed $25,000,000 at any time outstanding. Notwithstanding the foregoing, the aggregate amount of (i) Indebtedness of the following conditions shall have been satisfied: Borrowers (1under paragraphs (j) the Senior Facility Agent shall have received a certificate from an Authorized Officer or (l)) secured by Liens plus (ii) Indebtedness of the Borrower to the effect that the outstanding Senior Debt Borrowers’ Subsidiaries (other than Working Capital Debt and Indebtedness incurred pursuant to clauses under paragraphs (e), (f), (g), (h), (i), (j), (k), ) or (l), ) shall not exceed fifteen percent (m), and (o15%) of this Section 2.5) (after giving effect to the incurrence and application of proceeds of such Permitted Refinancing (2) using an interest rate equal to the weighted average interest rate of all such Senior Debt outstanding after giving effect to the incurrence Consolidated Total Assets of the Permitted Refinancing Indebtedness and the application Borrowers, determined as of the proceeds therefrom);end of the then most recently completed fiscal year of the Borrowers.

Restrictions on Indebtedness. The Borrower shall will not, and the Borrower will not directly permit any of the Related Companies or indirectly any Controlled Unconsolidated Entity to create, incur, issue, assume, permit, suffer to exist or otherwise be guarantee or become liable with respect toor remain liable, contingently or otherwise (collectivelyotherwise, “incur”), with respect to any Indebtedness; provided, however, that the Borrower may incur any of the following items of IndebtednessIndebtedness other than: (a) Indebtedness existing arising under the Initial Senior Bond Indentures in an amount not to exceed the amount of Indebtedness outstanding Secured Revolving Credit Agreement or under the Initial Senior Bond Indentures as any of the date of the Fifth Omnibus AmendmentLoan Documents; (b) Permitted Refinancing Indebtedness current liabilities of the Borrower incurred in exchange forthe ordinary course of business but not incurred through (i) the borrowing of money, or (ii) the net proceeds obtaining of which are used to renew, refund, refinance, replace, defease or discharge any Indebtedness (other than intercompany Indebtedness) that was permitted to be incurred under clause (a), (b) or credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services; (c) Indebtedness in respect of this Section 2.5taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8; (d) Indebtedness in respect of judgments or awards that have been in force for less than the applicable period for taking an appeal so long as execution is not levied thereunder or in respect of which the Borrower shall at the time in good faith be prosecuting an appeal or proceedings for review and in respect of which a stay of execution shall have been obtained pending such appeal or review; (e) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business; (f) Indebtedness of Borrower or the Related Companies to the extent the same does not create a violation of §9.3, §9.4 or §9.5 and is subject to terms and conditions consistent with conventional commercial real estate lending practices, provided that each upon the creation or assumption of any such Indebtedness in an amount exceeding $5,000,000 Borrower shall provide the following conditions shall have been satisfied: (1) Agent with a notice describing the Senior Facility Agent shall have received a certificate from an Authorized Officer of the Borrower to the effect that the outstanding Senior Debt (other than Working Capital Debt and Indebtedness incurred pursuant to clauses (f), (g), (h), (i), (j), (k), (l), (m), and (o) of this Section 2.5) (after giving effect to the incurrence and application of proceeds terms of such Permitted Refinancing (2) using an interest rate equal to the weighted average interest rate of all such Senior Debt outstanding after giving effect to the incurrence of the Permitted Refinancing Indebtedness and the application of the proceeds therefrom);security therefor and a Compliance Certificate with updated calculations reflecting such Indebtedness.

Restrictions on Indebtedness. The Borrower shall Company will not directly or indirectly permit any Operating Subsidiary of the Company to create, incur, issue, assume, permit, suffer to exist guarantee or otherwise be or become remain liable with respect to, contingently or otherwise (collectively, “incur”)otherwise, any Indebtedness; provided, however, that the Borrower may incur any of the following items of IndebtednessIndebtedness other than: (a) Intercompany Indebtedness existing under the Initial Senior Bond Indentures in an amount not to exceed the amount of Indebtedness outstanding under the Initial Senior Bond Indentures as Operating Subsidiaries of the date of the Fifth Omnibus AmendmentCompany; (b) Permitted Refinancing Indebtedness of Foreign Subsidiaries, provided that the aggregate amount of such Indebtedness guaranteed by the Company and outstanding at any time shall not exceed the sum of (i) the Foreign Sublimit and (ii) $25,000,000; (c) Subordinated Debt or other long term unsecured Indebtedness having a maturity at least one (1) year after the Final Maturity Date and providing for no payments of principal prior to the Final Maturity Date; provided that, in the case of the incurrence of additional Subordinated Debt or other long term unsecured Indebtedness by such Subsidiary after the Effective Date, (i) the Company applies the net cash proceeds of such additional Subordinated Debt or other long term unsecured Indebtedness in accordance with 2.10(a)(iii) and (ii) no Default or Event of Default has occurred and is continuing at the time of the incurrence of such additional Indebtedness or would result after giving effect thereto; (d) Indebtedness incurred in connection with the acquisition after the date hereof of any real or personal property by such Operating Subsidiary or under any Page 91 Capitalized Lease, provided that the aggregate principal amount of such Indebtedness of the Borrower in exchange for, or Operating Subsidiaries shall not exceed the net proceeds aggregate amount of which are used $10,000,000 at any one time; (e) Indebtedness to renew, refund, refinance, replace, defease or discharge the Banks and the Agent arising under any Indebtedness (other than intercompany Indebtedness) that was permitted to be incurred under clause (a), (b) or (c) of this Section 2.5, provided that each of the following conditions shall have been satisfied:Loan Documents; (1f) the Senior Facility Agent shall have received a certificate from an Authorized Officer sales of the Borrower to the effect that the outstanding Senior Debt (other than Working Capital Debt and Indebtedness incurred pursuant to clauses (f), receivables in connection with asset dispositions permitted under 10.5.2; (g), ) other Indebtedness existing on the date hereof and described on Schedule 10.1 hereto; (h)) Indebtedness in respect of Interest Hedging Agreements in an aggregate amount not to exceed, in the case of Interest Hedging Agreements to which neither the Agent nor any Bank is a party, $75,000,000 outstanding at any time; and (i), (j), (k), (l), (m), and (o) of this Section 2.5) (after giving effect other Indebtedness in an aggregate principal amount not to the incurrence and application of proceeds of such Permitted Refinancing (2) using an interest rate equal to the weighted average interest rate of all such Senior Debt exceed $25,000,000 outstanding after giving effect to the incurrence of the Permitted Refinancing Indebtedness and the application of the proceeds therefrom);at any time.

Restrictions on Indebtedness. The No Borrower shall not directly or indirectly will create, incur, issue, assume, permit, suffer to exist guarantee or otherwise be or become liable with respect toremain liable, contingently or otherwise (collectivelyotherwise, “incur”), with respect to any Indebtedness; provided, however, that Indebtedness other than: a. Indebtedness to the Borrower may incur Bank arising under any of the following items Loan Documents; b. current liabilities of Indebtedness:such Borrower incurred in the ordinary course of business and not incurred through (i) the borrowing of money or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services; (a) c. Indebtedness existing under in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the Initial Senior Bond Indentures extent that payment therefor shall not at the time be required to be made in accordance with the provisions of REF 8.07; d. Indebtedness in respect of judgments or awards that have been in force for less than the applicable period for taking an amount appeal so long as execution is not levied thereunder or in respect of which such Borrower shall at the time in good faith be prosecuting an appeal or proceedings for review and in respect of which a stay of execution shall have been obtained and be in effect pending such appeal or review; e. endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business; f. loans from shareholders of CompuDyne, to exceed the extent the same are subordinated to the Obligations pursuant to the Subordination Agreement, and other Subordinated Debt; g. Indebtedness incurred in connection with the acquisition after the date hereof of any real or personal property by such Borrower, provided that the aggregate principal amount of Indebtedness outstanding under the Initial Senior Bond Indentures as of the date of the Fifth Omnibus Amendment; (b) Permitted Refinancing such Indebtedness of the Borrowers shall not exceed the aggregate amount of $100,000 at any one time; h. Indebtedness existing on the date hereof and listed and described on Schedule 9.01 hereto; and i. contingent Indebtedness incurred by any Borrower in exchange for, connection with the execution of any one or the net proceeds of which are used to renew, refund, refinance, replace, defease or discharge any Indebtedness (other than intercompany Indebtedness) that was permitted to be incurred under clause (a), (b) or (c) of this Section 2.5, provided that each of the following conditions shall have been satisfied: (1) the Senior Facility Agent shall have received a certificate from an Authorized Officer of the Borrower to the effect that the outstanding Senior Debt (other than Working Capital Debt and Indebtedness incurred pursuant to clauses (f), (g), (h), (i), (j), (k), (l), (m), and (o) of this Section 2.5) (after giving effect to the incurrence and application of proceeds of such Permitted Refinancing (2) using an interest rate equal to the weighted average interest rate of all such Senior Debt outstanding after giving effect to the incurrence of the Permitted Refinancing Indebtedness and the application of the proceeds therefrom);more Surety Agreements.

Restrictions on Indebtedness. The Borrower shall will not directly or indirectly nor will it permit any of its Subsidiaries to, create, incur, issue, assume, permit, suffer to exist guarantee or otherwise be or become liable with respect toremain liable, contingently or otherwise (collectivelyotherwise, “incur”), with respect to any Indebtedness; provided, however, that the Borrower may incur any of the following items of IndebtednessIndebtedness other than: (a) Indebtedness existing to the Lenders and the Administrative Agent arising under the Initial Senior Bond Indentures in an amount not to exceed the amount of Indebtedness outstanding under the Initial Senior Bond Indentures as any of the date of the Fifth Omnibus AmendmentLoan Documents; (b) Permitted Refinancing endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business; (c) the Subordinated Debt; (d) Indebtedness incurred in connection with the acquisition after the date hereof of any real or personal property by the Borrower or such Subsidiary or under any Capitalized Lease, provided that the aggregate principal amount of such Indebtedness of the Borrower in exchange for, or and its Subsidiaries shall not exceed the net proceeds aggregate amount of which are used to renew, refund, refinance, replace, defease or discharge $2,500,000 at any Indebtedness (other than intercompany Indebtedness) that was permitted to be incurred under clause (a), (b) or (c) of this Section 2.5one time, provided that each no Default or Event of Default shall exist (i) prior to the incurrence of such Indebtedness, or (ii) as a result of the following conditions shall have been satisfied:incurrence of such Indebtedness; (1e) Indebtedness in respect of Interest Rate Agreements entered into in order to hedge interest rate fluctuations on Indebtedness for borrowed money of the Senior Facility Agent shall have received a certificate from an Authorized Officer Borrower or its Subsidiaries and not for speculative purposes; (f) Indebtedness consisting of contingent obligations of the Borrower to repurchase or otherwise redeem capital stock of the effect that Borrower from former employees of the outstanding Senior Debt (other than Working Capital Debt and Indebtedness incurred Borrower pursuant to clauses (fthe terms of employee stock ownership, employee stock option or other employee compensation plans of the Borrower and matured obligations to repurchase or otherwise redeem such stock, in the case of each such repurchase or redemption, to the extent such repurchase or redemption is permitted under Section 10.4(d), ; (g)) other Indebtedness in an aggregate principal amount at any time outstanding not exceeding $1,000,000; provided, (h), that no Event of Default shall exist (i), (j), (k), (l), (m), and (o) of this Section 2.5) (after giving effect to the incurrence and application of proceeds of such Permitted Refinancing (2) using an interest rate equal to the weighted average interest rate of all such Senior Debt outstanding after giving effect prior to the incurrence of the Permitted Refinancing such Indebtedness and the application or (ii) as a result of the proceeds therefrom);incurrence of such Indebtedness; and (h) Indebtedness existing on the date hereof and listed and described on Schedule 10.1 hereto.

Restrictions on Indebtedness. The Neither the Borrower nor any of its Subsidiaries shall not directly become or indirectly be a guarantor or surety of, or otherwise create, incur, issue, assume, permit, suffer to exist or otherwise be or become liable with respect toremain liable, contingently or otherwise (collectivelyotherwise, “incur”), with respect to any Indebtedness; provided, howeveror become or be responsible in any manner (whether by agreement to purchase any obligations, that the Borrower may stock, assets, goods or services, or to supply or advance any funds, assets, goods or services or otherwise) with respect to any Indebtedness of any other Person, or incur any of the following items of IndebtednessIndebtedness other than: (a) Indebtedness existing arising under this Agreement or the Initial Senior Bond Indentures in an amount not to exceed the amount of Indebtedness outstanding under the Initial Senior Bond Indentures as of the date of the Fifth Omnibus Amendmentother Loan Documents; (bi) Permitted Refinancing Indebtedness incurred by the Borrower or any Subsidiary with respect to any suretyship or performance bond incurred in the ordinary course of its business and undrawn landfill closure bonds; and (ii) Guarantees of the Subsidiaries' obligations to governmental authorities in lieu of the posting of any landfill closure bonds; (c) Unsecured Indebtedness of the Borrower in exchange for(and any guarantee thereof by Old WMI), including commercial paper, which is pari passu or subordinated to the net proceeds Obligations; PROVIDED that there does not exist a Default or Event of which are used to renew, refund, refinance, replace, defease Default at the time of the incurrence of such Indebtedness and no Default or discharge any Event of Default would be created by the incurrence of such Indebtedness; (i) Indebtedness of the Borrower's Subsidiaries (other than intercompany Indebtedness) that was permitted to be incurred under clause (aof Old WMI and the Sanifill Convertible Subordinated Debt and United Convertible Subordinated Debt), (bii) or (c) of this Section 2.5, provided that each secured Indebtedness of the following conditions shall have been satisfied: Borrower, (1iii) the Senior Facility Agent shall have received a certificate from an Authorized Officer Indebtedness with respect to drawn landfill closure bonds of the Borrower to the effect that the outstanding Senior Debt Borrower's Subsidiaries (other than Working Capital Debt and Indebtedness incurred pursuant to clauses (f), (g), (h), (i), (j), (k), (l), (mof Old WMI), and (oiv) Indebtedness with respect to Permitted Receivables Transactions (other than of this Section 2.5) (after giving effect to Old WMI); PROVIDED that the incurrence and application of proceeds of such Permitted Refinancing (2) using an interest rate equal to the weighted average interest rate aggregate amount of all such Senior Indebtedness in this Section 8.1(d) shall not exceed 15% of Consolidated Tangible Assets at any time; (e) Indebtedness of Old WMI listed in SCHEDULE 8.1(E) on the terms and conditions existing on the Effective Date, PROVIDED that any extension, renewal or refinancing of such Indebtedness is prohibited unless the amount of such extended, renewed or refinanced Indebtedness by Old WMI is deducted from Indebtedness allowed under Section 8.1(d) above; (f) The Sanifill Convertible Subordinated Debt outstanding after giving effect and United Convertible Subordinated Debt; and (g) Until July 31, 1998 only, with respect to the incurrence of the Permitted Refinancing Indebtedness and the application of the proceeds therefrom);WMF Agreement.

Restrictions on Indebtedness. The Borrower shall not directly or indirectly not, nor shall it permit any Subsidiary to, create, incur, issue, assume, permit, assume or suffer to exist or otherwise be or become liable with respect to, contingently or otherwise (collectively, “incur”), any Indebtedness; provided, however, that the Borrower may incur any of the following items of IndebtednessIndebtedness other than: (a) Indebtedness existing under on the Initial Senior Bond Indentures in an Closing Date and set forth on Schedule 7.01, including any renewals, extensions, refinancings and replacements thereof so long as the principal amount not to exceed thereof (plus all accrued interest on such Indebtedness and the amount of Indebtedness outstanding under all fees and expenses, including premiums, incurred in connection therewith, the Initial Senior Bond Indentures as amount of which may be included in the date principal amount of the Fifth Omnibus Amendmentany refinancing) is not increased; (b) incurrence of guaranty, suretyship or indemnification obligations in connection with the Borrower’s or any of its Subsidiaries’ performance of services for their respective customers in the ordinary course of their businesses; (c) so long as no Event of Default exists or would result therefrom (including that the Borrower would not violate the covenants set forth in Section 7.14 as a result thereof), Indebtedness of one Credit Party or any one Subsidiary of the Borrower to another Credit Party or any other Subsidiary of the Borrower, which intercompany Indebtedness shall, in each case, be (x) unsecured, (y) subordinate to the Obligations in accordance with Section 11.23, and (z) in the case of any Permitted Refinancing Intercompany Financing, subject to the requirements set forth in Section 7.04(c); (d) Indebtedness of the Borrower or any of its Subsidiaries incurred in exchange forconnection with the acquisition or lease of any equipment or other property by the Borrower or any of its Subsidiaries under any Synthetic Lease, Capitalized Lease or the net proceeds of which are used to renew, refund, refinance, replace, defease other lease arrangement or discharge any Indebtedness (other than intercompany Indebtedness) that was permitted to be incurred under clause (a), (b) or (c) of this Section 2.5, provided that each of the following conditions shall have been satisfied:purchase money financing; (1e) the Senior Facility Agent shall have received a certificate from an Authorized Officer Indebtedness of the Borrower or any of its Subsidiaries with respect to bonds for vehicle permits, facility or building permits, tipping or disposal fees, solid waste collections, solid waste transportation, closure and post-closure obligations relating to any landfill owned or operated by the Borrower or any of its Subsidiaries; (f) Indebtedness of the Borrower or any of its Subsidiaries in respect of Swap Contracts (including Fuel Derivatives Obligations) entered into in the ordinary course of business and not for speculative purposes; (g) Indebtedness of the Borrower or any of its Subsidiaries with respect to letters of credit of Persons acquired by the Borrower or any of its Subsidiaries; provided, that such letters of credit shall be retired immediately or replaced by Letters of Credit under this Agreement as soon as possible but in any event not later than one hundred twenty (120) days after the closing of any such acquisition; (h) Indebtedness of the Borrower or any of its Subsidiaries in respect of IRBs; provided, that (i) such Indebtedness may be secured only to the effect that the outstanding Senior Debt extent such IRBs are L/C Supported IRBs and (other than Working Capital Debt and ii) after taking into account all Indebtedness incurred pursuant to clauses (f), (g), this clause (h), the Borrower and its Subsidiaries on a consolidated basis shall be in pro forma compliance with each of the financial covenants set forth in Section 7.14 (i), using Consolidated EBITDA of the Consolidated Group as of the last day of the applicable Pro Forma Reference Period (j), (k), (l), (m)but including any addbacks to Consolidated EBITDA previously approved in the period following the last day of the applicable Pro Forma Reference Period) and Consolidated Total Funded Debt as of the date of, and (o) of this Section 2.5) (after giving effect to to, such Indebtedness (with such amounts adjusted as if such Indebtedness was incurred on the incurrence and application first day of proceeds of such Permitted Refinancingthe applicable Pro Forma Reference Period)); (2i) other secured Indebtedness of the Borrower and its Subsidiaries (other than as permitted under other subsections hereof), not in excess of U.S. Dollar Equivalent of U.S.$20,000,000 in the aggregate at any time outstanding; (j) other unsecured Indebtedness of the Credit Parties; provided, that, at the time of incurrence thereof, the Borrower and its Subsidiaries shall be in pro forma compliance with each of the financial covenants set forth in Section 7.14 (using an interest rate equal Consolidated EBITDA of the Consolidated Group as of the last day of the applicable Pro Forma Reference Period (but including any addbacks to Consolidated EBITDA previously approved in the weighted average interest rate period following the last day of all such Senior the applicable Pro Forma Reference Period) and Consolidated Total Funded Debt outstanding as of the date of, and after giving effect to to, such Indebtedness (with such amounts adjusted as if such Indebtedness was incurred on the incurrence first day of the Permitted Refinancing applicable Pro Forma Reference Period)); (k) other unsecured Indebtedness and the application of any Subsidiary of the proceeds therefrom)Borrower that is not a Credit Party, not in excess of U.S. Dollar Equivalent of U.S.$20,000,000 in the aggregate at any time outstanding; (l) the Obligations; (m) Indebtedness incurred by a Receivables SPV in a Permitted Receivables Transaction; and (n) Indebtedness in respect of the Private Placement Notes as of the Closing Date; provided, in each case that no Subsidiary shall issue, Guarantee or incur any Indebtedness under any Private Placement Note or any other senior notes of the Borrower or, if applicable, senior notes of the Borrower’s Subsidiaries, unless such Subsidiary is also a Guarantor.

Restrictions on Indebtedness. The Borrower shall will not, and will not directly or indirectly permit any of its Subsidiaries to, create, incur, issue, assume, permit, suffer to exist guarantee or otherwise be or become liable with respect toremain liable, contingently or otherwise (collectivelyotherwise, “incur”), with respect to any Indebtedness; provided, however, that the Borrower may incur any of the following items of IndebtednessIndebtedness other than: (a) Indebtedness existing under the Initial Senior Bond Indentures in an amount not to exceed the amount of Indebtedness outstanding under the Initial Senior Bond Indentures as of the date of the Fifth Omnibus Amendment; (b) Permitted Refinancing endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business; (c) Indebtedness incurred in connection with the acquisition after the date hereof of any real or personal property by the Borrower or such Subsidiary or under any Capitalized Lease, provided that the aggregate principal amount of such Indebtedness of the Borrower in exchange for, and its Subsidiaries shall not exceed the aggregate amount of $1,000,000 at any one time; (d) Unsecured Indebtedness of (i) the Borrower to Cabot Corporation or any of its Subsidiaries which is not otherwise subordinated to the net proceeds Obligations; (ii) any Subsidiary of which are used the Borrower to renew, refund, refinance, replace, defease Cabot Corporation or discharge any Indebtedness of its Subsidiaries (other than intercompany Indebtednessthe Borrower or its Subsidiaries); and (iii) that was permitted the Borrower or any Subsidiary (including, without limitation, Indebtedness consisting of letters of credit) to be incurred any other Person (other than Cabot Corporation or any of its Subsidiaries) provided the aggregate amount of all such Indebtedness under clause (a), (b) or (c) of this Section 2.59.1(d)(iii) does not exceed, in the aggregate, $15,000,000 outstanding at any time and provided, further, that the aggregate amount of all such Indebtedness under this Section 9.1(d) does not exceed, in the aggregate, $30,000,000 outstanding at any time; (e) Indebtedness of the Borrower to Cabot Corporation or any of its Subsidiaries, provided that each of such Indebtedness shall be subordinated to all Obligations pursuant to subordination terms acceptable to the following conditions shall have been satisfied:Agent in all respects; (1f) the Senior Facility Agent shall have received Indebtedness of (i) a certificate from an Authorized Officer Subsidiary of the Borrower to the effect that the outstanding Senior Debt Borrower; (other than Working Capital Debt ii) Cabot B.V. to Cabot Canada Ltd.; and Indebtedness incurred pursuant (iii) Cabot Canada Ltd. to clauses (f), Cabot B.V.; (g), (h), (i), (j), (k), (l), (m), and (o) Indebtedness of this Section 2.5) (after giving effect the Borrower to any of its Subsidiaries which is not otherwise subordinated to the incurrence and application of proceeds of such Permitted Refinancing (2) using an interest rate equal to Obligations, provided the weighted average interest rate aggregate amount of all such Senior Debt Indebtedness under this Section 9.1(g) does not exceed, in the aggregate, $15,000,000 outstanding after giving effect at any time; (h) other Indebtedness of the Borrower or any of its Subsidiaries not otherwise permitted under this Section 9.1 which is consented to in writing by the Agent and the Banks. For the avoidance of doubt, to the incurrence extent any Indebtedness of the Permitted Refinancing Indebtedness and the application Borrower or any Subsidiary would be permitted by more than one of the proceeds therefrom);paragraphs set forth above, the election as to which paragraphs such Indebtedness shall fall into shall be the decision of the Borrower.

Restrictions on Indebtedness. The Borrower shall Borrowers will not, and will not directly or indirectly permit any of their Subsidiaries to, create, incur, issue, assume, permitguarantee, suffer to exist or otherwise be or become liable remain liable, contingently or otherwise, with respect to, contingently or otherwise (collectively, “incur”), any Indebtedness; provided, however, that the Borrower may incur any of the following items of IndebtednessIndebtedness other than: (a) Indebtedness existing to the Lenders and the Agent arising under the Initial Senior Bond Indentures in an amount not to exceed the amount of Indebtedness outstanding under the Initial Senior Bond Indentures as any of the date of the Fifth Omnibus AmendmentLoan Documents; (b) Permitted Refinancing current liabilities of any of the Borrowers or their Subsidiaries incurred in the ordinary course of business not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services; (c) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of section 9.8; (d) Indebtedness in respect of judgments or awards that have been in force for less than the applicable period for taking an appeal so long as execution is not levied thereunder or in respect of which any of the Borrowers or Subsidiaries shall at the time in good faith be prosecuting an appeal or proceedings for review and in respect of which a stay of execution shall have been obtained pending such appeal or review; (e) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business; (f) Subordinated Debt; (g) obligations under Capitalized Leases not exceeding $15,000,000 in the aggregate amount at any time outstanding; (h) Indebtedness incurred in connection with the acquisition after the date hereof of any real or personal property by any of the Borrowers or their Subsidiaries (including Approved Acquisitions), provided that the aggregate principal amount of such Indebtedness of the Borrower in exchange for, or Borrowers and their Subsidiaries shall not exceed the net proceeds aggregate amount of which are used $7,500,000 at any one time; (i) Indebtedness existing on the date hereof and listed and described on Schedule 10.1 hereto; and (j) Indebtedness of any member of the ICT Group to renew, refund, refinance, replace, defease or discharge any Indebtedness (other than intercompany Indebtedness) that was permitted to be incurred under clause (a), (b) or (c) member of this Section 2.5, the ICT Group; provided that each of the following conditions shall have been satisfied: (1) the Senior Facility Agent shall have received a certificate from an Authorized Officer of the Borrower to the effect that the outstanding Senior Debt (other than Working Capital Debt and Indebtedness incurred pursuant to clauses (f), (g), (h), (i), (j), (k), (l), (m), and (o) of this Section 2.5) (after giving effect to the incurrence and application of proceeds of such Permitted Refinancing (2) using an interest rate equal to the weighted average interest rate of all such Senior Debt outstanding after giving effect to the incurrence of the Permitted Refinancing Indebtedness and the application right to repayment thereof shall constitute Collateral in which the Agent has a perfected, first priority security interest, and all such Indebtedness shall be subject to the subordination provisions of the proceeds therefrom);section 5 and section 6.13 of this Credit Agreement.

Restrictions on Indebtedness. The Borrower Borrowers shall not directly become or indirectly be a guarantor or surety of, or otherwise create, incur, issue, assume, permit, suffer to exist or otherwise be or become liable with respect toremain liable, contingently or otherwise (collectivelyotherwise, “incur”), with respect to any Indebtedness; provided, howeveror become or be responsible in any manner (whether by agreement to purchase any obligations, that the Borrower may stock, assets, goods or services, or to supply or advance any funds, assets, goods or services or otherwise) with respect to any undertaking or Indebtedness of any other Person, or incur any of the following items of IndebtednessIndebtedness other than: (a) Indebtedness existing to the Lenders and the Administrative Agent arising under this Credit Agreement or the Initial Senior Bond Indentures in an amount not to exceed the amount of Indebtedness outstanding under the Initial Senior Bond Indentures as of the date of the Fifth Omnibus AmendmentLoan Documents; (b) Permitted Refinancing incurrence of guaranty, suretyship or indemnification obligations in connection with the Borrowers' performance of services for their respective customers in the ordinary course of their businesses; (c) Indebtedness of one Borrower to another then existing Borrower; (i) purchase money Indebtedness incurred in connection with the Borrower acquisition after June 29, 1998 of any real or personal property or under equipment leases or equipment chattel, (ii) existing Indebtedness of any Subsidiary acquired after June 29, 1998 (the "Acquired Subsidiary") originally incurred by the Acquired Subsidiary in exchange for, connection with the lease or acquisition of property or fixed assets used in the net proceeds business of which are used the Acquired Subsidiary; or with respect to renew, refund, refinance, replace, defease industrial finance bonds issued to finance the purchase of such property or discharge assets; (iii) other unsecured existing Indebtedness of any Acquired Subsidiary; (iv) Indebtedness with respect to obligations under Capitalized Leases or sale and leaseback transactions and (v) Indebtedness (other than intercompany IndebtednessSubordinated Debt) that was permitted incurred in connection with acquisitions after the date hereof of any equity interest in, or assets of any Person owing to be incurred under clause (a), (b) or (cthe seller(s) of this Section 2.5, such equity interests or assets; provided that each of the following conditions shall have been satisfied: (1A) such acquisitions are otherwise permitted pursuant to ss.8.4; (B) the Senior Facility Agent aggregate amount of such Indebtedness under this subsection (d) shall have received a certificate from an Authorized Officer not exceed the greater of the Borrower to the effect that the outstanding Senior Debt (other than Working Capital Debt and Indebtedness incurred pursuant to clauses (f), (g), (h), (i), (j), (k), (l), (m), x) $65,000,000 and (oy) of this Section 2.5) EBITDA for the four fiscal quarters most recently ended multiplied by 0.75 (after giving effect to calculated on a pro forma basis assuming any acquisition made at any time during such period had been completed at the incurrence and application of proceeds beginning of such Permitted Refinancing period) and (2C) using an interest rate equal to the weighted average interest rate of all such Senior Debt outstanding after giving effect to the incurrence of such Indebtedness would not otherwise create an Event of Default under ss.9; (e) Subordinated Debt, provided such Indebtedness is not amended or prepaid, except in accordance with Section 8.11, without the Permitted Refinancing Indebtedness consent of the Majority Lenders, except with respect to Subordinated Debt that is repaid in accordance with Section 8.11, provided further that in the event that after the Closing Date any Subsidiary of the Parent guarantees any Subordinated Debt, the terms of such guaranty shall provide for the release of such guaranty upon the sale of stock or all or substantially all of the assets of such Subsidiary (even if such sale was made in a foreclosure) in substantially the same form of release provision as in the Senior Subordinated Notes and the application Senior Subordinated Indenture; (f) Indebtedness existing as of June 29, 1998 and listed and described on Schedule 8.1 hereto; and (g) additional unsecured Indebtedness of the proceeds therefrom);Borrowers in an aggregate amount not to exceed $5,000,000; provided that if the creation, incurrence, assumption or existence of any Indebtedness would constitute an Event of Default under, or be prohibited pursuant to the terms of, the then existing Subordinated Debt, then the creation, incurrence, assumption or existence of such Indebtedness shall not be permitted hereunder.

Restrictions on Indebtedness. The Borrower shall not directly or indirectly createwill not, nor will it permit any Subsidiary of the Borrower to, issue, incur, issue, assume, permitcreate, suffer to exist or otherwise be or become liable with respect tofor, contingently or otherwise (collectivelyotherwise, “incur”), or have outstanding any Indebtedness; provided, however, that the Borrower may incur any of foregoing provisions shall not restrict nor operate to prevent the following items of Indebtedness: (a) Indebtedness existing under the Initial Senior Bond Indentures in an amount not to exceed the amount of Indebtedness outstanding under the Initial Senior Bond Indentures as of the date of the Fifth Omnibus AmendmentObligations; (b) Permitted Refinancing Non-Recourse Indebtedness of any Project Finance Subsidiary; (c) so long as the Borrower would be in compliance with Section 7.17 hereof (calculated as of the date of, and after giving effect to, the incurrence of such Indebtedness), secured Indebtedness (excluding Indebtedness of the type described in (e) below but including the pledge of stock or similar equity interest of any Project Finance Subsidiary or any Subsidiary which is an entity whose sole purpose and extent of business activities is to own the stock or similar equity interest of such Project Finance Subsidiary): (A) set forth on Schedule 7.15(c) hereto, (B)(i) of BHP or CLF&P, (ii) evidencing the deferred purchase price of newly acquired property or incurred to finance the acquisition of personal property of the Borrower or a Subsidiary of the Borrower used in exchange forthe ordinary course of business of the Borrower or Subsidiary, (iii) constituting Capitalized Lease Obligations or with respect to synthetic (or similar type) lease arrangements, or (iv) incurred in connection with the net proceeds performance of which are used to renewtenders, refundstatutory obligations, refinancebids, replace, defease leases or discharge any Indebtedness other similar obligations (other than intercompany Indebtednessfor borrowed money) entered into in the ordinary course of business or to secure obligations on performance bonds; provided, that was the aggregate amount of Indebtedness permitted to be incurred under by clause (a), (b) or (cB)(iv) of this Section 2.57.15(c) at any time outstanding shall not exceed 5% of Consolidated Assets as reflected on the most recent balance sheet delivered by the Borrower pursuant to Section 7.6 hereof, and (C) constituting first mortgage bond debt which is issued or incurred by Black Hills Utility Holdings, Inc. or any of its direct or indirect Subsidiaries to finance the design, permitting, construction, ownership, operation or maintenance of utility properties which does not mature prior to the Termination Date, as extended from time to time in accordance with the terms hereof, and is not in excess of an amount equal to fifty percent (50%) of the net book value of the property, plant and equipment of Black Hills Utility Holdings, Inc. (as reported in the most recent quarterly financial statements which were prepared in accordance with GAAP); provided, the Borrower shall promptly provide the Administrative Agent with a copy of any documentation evidencing such Indebtedness in excess of $25,000,000 and any modification to such Indebtedness; US.55648218.03 (d) so long as the Borrower would be in compliance with Section 7.17 hereof (calculated as of the date of, and after giving effect to, the incurrence of such Indebtedness), other Indebtedness (excluding Indebtedness of the type described in (e) below) which is unsecured and either junior in right of payment to the Obligations or pari passu to the Obligations or is equally and ratably secured with the Obligations, provided that each the Borrower shall promptly provide the Administrative Agent with a copy of the following conditions shall have been satisfied:any documentation evidencing such Indebtedness in excess of $25,000,000 and any modification to such Indebtedness; (1e) the Senior Facility Agent shall have received a certificate intercompany loans (i) from an Authorized Officer (x) any Subsidiary of the Borrower to the effect that Borrower so long as such loans are subordinated to the outstanding Senior Debt Obligations on terms reasonably satisfactory to the Administrative Agent, and (other than Working Capital Debt y) the Borrower to a Subsidiary of the Borrower and (ii) among Wholly‑Owned Subsidiaries; (f) Reserved; (g) Reserved; (h) Permitted Derivative Obligations; and (i) Indebtedness incurred pursuant to clauses Long-Term Guaranties. Indebtedness shall only be permitted under (fd), (ge), (h), and (i) above to the extent such Indebtedness will have a priority of payment with the Obligations which is no greater than pari passu (and with respect to clause (e), (j), (k), (l), (m), and (o) of this Section 2.5) (after giving effect to the incurrence and application of proceeds of extent such Permitted Refinancing (2) using an interest rate equal Indebtedness is subordinated to the weighted average interest rate of all Obligations as set forth in such Senior Debt outstanding after giving effect to the incurrence of the Permitted Refinancing Indebtedness and the application of the proceeds therefromclause);.

Restrictions on Indebtedness. The Borrower (i) Subject to clause (ii) below, the Parent Guarantor shall not directly or indirectly create, incur, issueand shall not permit its Subsidiaries to incur, assume, permit, suffer to exist or otherwise be or become liable with respect to, contingently or otherwise Indebtedness except the following (collectively, “incur”"Permitted Indebtedness"): (A) Indebtedness under the Loan Documents; (B) Any Indebtedness incurred by the Parent Guarantor or the Borrower (but not any other Subsidiary of the Parent Guarantor) if prior to, and immediately after, the incurrence thereof, the Senior Ratio is equal to or less than 3.5; (C) Subordinated Indebtedness of the Parent Guarantor or the Borrower; or (D) Permitted Intercompany Indebtedness; (E) Indebtedness incurred pursuant to a Permitted Credit Line up to an aggregate principal amount which does not exceed the principal amount disclosed on Schedule 7(f)(i)(E) hereto under the heading "Total Permitted Credit Line"; or (F) Indebtedness of the Parent Guarantor or the Borrower under Swap Agreements entered into in the ordinary course of business with any Bank. provided, that prior to the incurrence of Subordinated Indebtedness, the Agent shall have received an opinion of counsel relating to such Subordinated Indebtedness and stating that in the opinion of such counsel the Indebtedness of the Loan Parties under the Loan Documents is senior indebtedness within the meaning of such term (or a term analogous thereto) as used in the terms and provisions relating to such Subordinated Indebtedness. (ii) Notwithstanding clause (i) above, no Permitted Indebtedness may be incurred unless (A) the Parent Guarantor or the Borrower shall have given the Agent at least 7 Business Days' prior notice of the intention to incur such Indebtedness in accordance with the terms hereof and (B) if the principal amount of such Indebtedness is $1,000,000 or more, the Person to whom the debtor in respect of such Indebtedness shall be obligated becomes a party to the Intercreditor Agreement (unless it is already a party to such agreement), any Indebtedness; provided, however, that clause (B) hereof shall not apply to (1) Subordinated Debt or (2) Indebtedness that is otherwise Permitted Indebtedness and that is issued pursuant to a (x) registration statement filed with the Securities and Exchange Commission or (y) a private placement with institutional investors. In the case of such a private placement with institutional investors, the Parent Guarantor or the Borrower may incur shall use its reasonable best efforts to ensure that the institutional investors in such private placement become parties to the Intercreditor Agreement. (iii) The Parent Guarantor shall not, and shall not permit any of the following items its Subsidiaries to, make any voluntary pre-payments of Indebtedness: (a) principal in respect of Subordinated Indebtedness existing under the Initial Senior Bond Indentures in an amount not to exceed the amount of Indebtedness so long as there are any amounts outstanding under the Initial Senior Bond Indentures Loan Documents. For the avoidance of doubt, the parties agree that this clause (iii) shall not restrict payments of principal in respect of Subordinated Indebtedness so long as (A) such Subordinated Indebtedness is evidenced by convertible bonds, notes or debentures, (B) such payment is being made in connection with the exercise by the issuer thereof of the conversion option applicable to such Indebtedness at a time when the conversion option applicable to such Indebtedness is at a price lower than the then present market price of the security issuable upon conversion, (C) such payment is not being made any earlier than three years from the date of the Fifth Omnibus Amendment; issuance of such Indebtedness and (b) Permitted Refinancing Indebtedness of the Borrower in exchange for, or the net proceeds of which are used to renew, refund, refinance, replace, defease or discharge any Indebtedness (other than intercompany Indebtedness) that was permitted to be incurred under clause (a), (b) or (c) of this Section 2.5, provided that each of the following conditions shall have been satisfied: (1D) the Senior Facility Agent Majority Banks have consented to such payment (which consent shall have received a certificate from an Authorized Officer of the Borrower to the effect that the outstanding Senior Debt (other than Working Capital Debt and Indebtedness incurred pursuant to clauses (fnot be unreasonably withheld), (g), (h), (i), (j), (k), (l), (m), and (o) of this Section 2.5) (after giving effect to the incurrence and application of proceeds of such Permitted Refinancing (2) using an interest rate equal to the weighted average interest rate of all such Senior Debt outstanding after giving effect to the incurrence of the Permitted Refinancing Indebtedness and the application of the proceeds therefrom);.

Restrictions on Indebtedness. The Excluding a mortgage, junior to the Lender’s mortgage, when it does not agree to Fund the Expansion (the “Expansion Mortgage” the Borrower shall will not directly or indirectly create, incur, issue, assume, permit, suffer to exist guarantee or otherwise be or become liable with respect toremain liable, contingently or otherwise (collectivelyotherwise, “incur”), with respect to any Indebtedness; provided, however, that the Borrower may incur any of the following items of IndebtednessIndebtedness other than: (a) Indebtedness existing to the Lender arising under the Initial Senior Bond Indentures in an amount not to exceed the amount of Indebtedness outstanding under the Initial Senior Bond Indentures as any of the date of the Fifth Omnibus AmendmentLoan Documents; (b) Permitted Refinancing current liabilities of the Borrower incurred in the ordinary course of business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services; (c) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefore shall not at the time be required to be made in accordance with the provisions of Section 10.10 (provided, however, that with respect to any Indebtedness to the Contractor, the Contractor shall have entered into a subordination agreement (the “Contractor’s Subordination Agreement”), in form and substance satisfactory to the Lender, subordinating the Borrower’s obligation to pay Retainage to the full payment and performance of the Obligations); (d) Indebtedness in respect of judgments or awards that have been in force for less than the applicable period for taking an appeal so long as execution is not levied thereunder or in respect of which the Borrower shall at the time in good faith be prosecuting an appeal or proceeding for review and in respect of which a stay of execution shall have been obtained pending such appeal or review; (e) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business; and (f) unsecured Indebtedness of the Borrower in exchange for, or the net proceeds of which are used owing to renew, refund, refinance, replace, defease or discharge any Indebtedness (other than intercompany Indebtedness) that was permitted to be incurred under clause (a), (b) or (c) of this Section 2.5, provided that each of the following conditions shall have been satisfied: (1) the Senior Facility Agent shall have received a certificate from an Authorized Officer member of the Borrower (including the Required Equity Funds), that is expressly subordinated and made junior to the effect that the outstanding Senior Debt (other than Working Capital Debt payment and Indebtedness incurred pursuant to clauses (f), (g), (h), (i), (j), (k), (l), (m), and (o) of this Section 2.5) (after giving effect to the incurrence and application of proceeds of such Permitted Refinancing (2) using an interest rate equal to the weighted average interest rate of all such Senior Debt outstanding after giving effect to the incurrence performance in full of the Permitted Refinancing Indebtedness Obligations and evidenced as such by a written instrument containing subordination provisions in form and substance approved by the application of the proceeds therefrom);Lender.

Restrictions on Indebtedness. The Borrower shall will not, and will not directly or indirectly permit any of its Subsidiaries owning Collateral to, create, incur, issue, assume, permit, suffer to exist guarantee or otherwise be or become liable with respect toremain liable, contingently or otherwise (collectivelyotherwise, “incur”), with respect to any Indebtedness; provided, however, that the Borrower may incur any of the following items of IndebtednessIndebtedness other than: (a) Indebtedness existing to the Banks arising under any of the Initial Senior Bond Indentures Loan Documents; (b) current liabilities of the Borrower or its Subsidiaries incurred in the ordinary course of business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services; (c) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of Section 7.8; (d) Indebtedness in respect of judgments or awards that have been in force for less than the applicable period for taking an appeal so long as execution is not levied thereunder or in respect of which the Borrower or the relevant Subsidiary shall at the time in good faith be prosecuting an appeal or proceedings for review and in respect of which a stay of execution shall have been obtained pending such appeal or review; (e) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business; (f) the Palomino Park Bonds; and (g) Indebtedness in an amount not to exceed $20,000,000.00 to Equity Residential Properties Trust, a Maryland real estate investment trust, to be repaid no later than one week from the amount of Indebtedness outstanding under Closig Date with the Initial Senior Bond Indentures as of the date of the Fifth Omnibus Amendment; (b) Permitted Refinancing Indebtedness of the Borrower in exchange for, or the net proceeds of which are used to renew, refund, refinance, replace, defease or discharge an Equity Offering. Nothing herein shall prohibit any Subsidiaries of Borrower that do not own any Collateral from incurring Indebtedness (other than intercompany Indebtedness) that was permitted to be incurred under clause (a), (b) or (c) of in this Section 2.58.1, provided that each of the following conditions in no event shall have been satisfied: (1) the Senior Facility Agent shall have received a certificate from an Authorized Officer of the Borrower to the effect that the outstanding Senior Debt (other than Working Capital Debt and Indebtedness incurred pursuant to clauses (f)nor any of its Subsidiaries owning Collateral be liable, (g)contingently or otherwise, (h), (i), (j), (k), (l), (m), and (o) of this Section 2.5) (after giving effect to the incurrence and application of proceeds of for any such Permitted Refinancing (2) using an interest rate equal to the weighted average interest rate of all such Senior Debt outstanding after giving effect to the incurrence of the Permitted Refinancing Indebtedness and the application of the proceeds therefrom);Indebtedness.

Restrictions on Indebtedness. The Borrower shall not directly or indirectly create, None of the Credit Parties nor any of its Restricted Subsidiaries will incur, issue, assume, permit, suffer to exist guarantee or otherwise be or become liable with respect toremain liable, contingently or otherwise (collectivelyotherwise, “incur”), with respect to any Indebtedness; provided, however, that the Borrower may incur any of the following items of IndebtednessIndebtedness other than: (a) Indebtedness existing secured by purchase money security interests and Capitalized Leases permitted by Section 7.03(a)(viii) and any Permitted Refinancing thereof; provided, that the aggregate amount of such Indebtedness described in this subclause (a) shall not exceed the greater of (x) $25,000,000 and (y) 42.0% of Consolidated EBITDA, plus any additional amounts permitted to be incurred pursuant to the definition of Permitted Refinancing; (b) Indebtedness of the Credit Parties consisting of the Obligations under the Initial Senior Bond Indentures in an amount not to exceed Loan Documents; (c) Indebtedness of the Credit Parties under the ABL Credit Agreement and any Permitted Refinancing thereof; provided, that the aggregate amount of such Indebtedness described in this subclause (c) shall not exceed $125,000,000 plus any additional amounts permitted to be incurred pursuant to the definition of Permitted Refinancing; (d) Indebtedness of any Credit Party outstanding under as of the Initial Senior Bond Indentures Closing Date and reflected on Schedule 7.02 hereto and any Permitted Refinancing thereof; (e) unsecured Subordinated Debt incurred after the Closing Date on terms and conditions acceptable to the Administrative Agent in its sole discretion, provided that (i) the maturity date of such Subordinated Debt shall be at least one hundred and eighty (180) days following the Maturity Date (after taking in account any extension thereof as of the date of incurrence of such Subordinated Debt) and (ii) the Fifth Omnibus Amendmentaggregate amount of such Subordinated Debt shall not exceed $10,000,000; (bf) Indebtedness consisting of any Investment permitted by Sections 7.01(c), (d) or (e); (g) Guarantees by (i) any Credit Party of Indebtedness of any other Credit Party permitted by this Section 7.02 (other than Section 7.02(k)), (ii) any Restricted Subsidiary that is not a Credit Party of any Indebtedness of any Credit Party permitted by this Section 7.02 (other than Section 7.02(k)) and (iii) any Restricted Subsidiary that is not a Credit Party of any Indebtedness of any other Restricted Subsidiary that is also not a Credit Party permitted by this Section 7.02; (h) Indebtedness consisting of contingent liabilities under surety bonds and similar instruments incurred in the ordinary course of business; (i) Indebtedness in respect of netting services, automatic clearing house arrangements, treasury management services and similar arrangements in the ordinary course of business in each case in connection with deposit and securities account; (j) [reserved]; (i) unsecured Indebtedness under the 2018 Contingent Promissory Note in an aggregate principal amount not to exceed $10,000,000, (ii) unsecured Indebtedness under the 2019 Contingent Promissory Note in an aggregate principal amount not to exceed $10,000,000, (iii) unsecured Indebtedness under the Guaranty Promissory Note in an aggregate principal amount not to exceed $10,000,000 and (iv) Guarantees of the Seller Notes pursuant to the Seller Note Guaranty; (l) (i) Permitted Pari Passu Refinancing Debt, Permitted Junior Refinancing Debt and Permitted Unsecured Refinancing Debt and (ii) any Permitted Refinancing thereof; (m) Indebtedness of the Borrower Credit Parties and their Restricted Subsidiaries consisting of Cash Management Obligations and Unsecured Cash Management Obligations; (n) Indebtedness of the Credit Parties and their Restricted Subsidiaries consisting of Hedge Obligations incurred in exchange forthe ordinary course of business and on a non-speculative basis; (o) other Indebtedness not to exceed the greater of (x) $15,000,000 and (y) $25.0% of Consolidated EBITDA in the aggregate outstanding at any time and (p) Indebtedness consisting of Incremental Equivalent/Ratio Debt and any Permitted Refinancing thereof; provided, or that the net proceeds aggregate amount of which are used to renew, refund, refinance, replace, defease or discharge such Indebtedness described in this subclause (p) shall not exceed the Incremental Amount plus any Indebtedness (other than intercompany Indebtedness) that was additional amounts permitted to be incurred under clause (a), (b) or (c) of this Section 2.5, provided that each of the following conditions shall have been satisfied: (1) the Senior Facility Agent shall have received a certificate from an Authorized Officer of the Borrower pursuant to the effect that the outstanding Senior Debt (other than Working Capital Debt and Indebtedness incurred pursuant to clauses (f), (g), (h), (i), (j), (k), (l), (m), and (o) of this Section 2.5) (after giving effect to the incurrence and application of proceeds of such definition Permitted Refinancing (2) using an interest rate equal to the weighted average interest rate of all such Senior Debt outstanding after giving effect to the incurrence of the Permitted Refinancing Indebtedness and the application of the proceeds therefrom);.

Restrictions on Indebtedness. The Borrower shall will not, and will not directly or indirectly permit any of its Subsidiaries to, create, incur, issue, assume, permit, suffer to exist guarantee or otherwise be or become liable with respect toremain liable, contingently or otherwise (collectivelyotherwise, “incur”), with respect to any Indebtedness; provided, however, that the Borrower may incur any of the following items of IndebtednessIndebtedness other than: (a) Indebtedness existing to the Banks and the Agent arising under the Initial Senior Bond Indentures in an amount not to exceed the amount of Indebtedness outstanding under the Initial Senior Bond Indentures as any of the date of the Fifth Omnibus AmendmentLoan Documents; (b) Permitted Refinancing endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business; (c) Indebtedness incurred in connection with the acquisition after the date hereof of any real or personal property by the Borrower or such Subsidiary or under any Capitalized Lease or Synthetic Lease, provided that the aggregate principal amount of such Indebtedness of the Borrower and its Subsidiaries shall not exceed the aggregate amount of $5,000,000 at any one time; (d) Indebtedness existing on the date hereof and listed and described on Schedule 8.1 hereto and any renewals, extensions and refinancings thereof so long as any such renewal, extension or refinancing (i) does not increase the principal amount of such Indebtedness; (ii) does not increase the rate of interest thereon; (iii) does not shorten the maturity of any such Indebtedness; and (iv) does not impose any terms, conditions, covenants or defaults which are more onerous to the Borrower than the terms of the Indebtedness being renewed, extended or refinanced; (e) Subordinated Debt evidenced by the Subordinated Debt Documents in an aggregate principal amount of not more than $200,000,000; (f) Indebtedness of a Subsidiary of the Borrower to any other Person other than the Borrower, provided that the aggregate principal amount of all such Indebtedness under this (S)8.1(f) does not exceed $15,000,000 outstanding at any time; (g) Indebtedness of Varian Japan to any Person other than the Borrower arising out of the sale by Varian Japan to such Person of accounts for money due or to become due or other receivables of Varian Japan or any similar transaction, provided that the aggregate principal amount of all such Indebtedness under this (S)8.1(g) does not exceed $20,000,000 outstanding at any time; (h) Indebtedness of the Borrower in exchange foran aggregate amount of not more than $20,000,000 evidencing the Borrower's commitment to make an Investment in First Silicon located in Sarawak, or the net proceeds of which are used to renew, refund, refinance, replace, defease or discharge any Indebtedness (other than intercompany Indebtedness) that was permitted to be incurred under clause (a), (b) or (c) of this Section 2.5, provided that each of the following conditions shall have been satisfied:Malaysia; (1i) the Senior Facility Agent shall have received Indebtedness of a certificate from an Authorized Officer Subsidiary of the Borrower to the effect that the outstanding Senior Debt (other than Working Capital Debt and Indebtedness incurred pursuant to clauses (f), (g), (h), Borrower provided (i) no Default or Event of Default has occurred and is continuing hereunder or would exist as a result thereof; (ii) such Indebtedness is not outstanding after the first anniversary of the Closing Date hereunder; (iii) such Indebtedness is in the form of intercompany loans evidenced by a written promissory note, with a maturity of not longer than 120 days from the date such Indebtedness is incurred; (iv) for a period of thirty (30) consecutive days in the twelve months following the Closing Date, there are no outstanding amounts owing from any Subsidiary to the Borrower under this (S)8.1(i), (j), (k), (l), (m), ; and (ov) of this Section 2.5) (after giving effect to the incurrence and application of proceeds of such Permitted Refinancing (2) using an interest rate equal to the weighted average interest rate aggregate principal amount of all such Senior Debt Indebtedness under this (S)8.1(i) does not exceed $5,000,000 outstanding after giving effect to the incurrence of the Permitted Refinancing Indebtedness and the application of the proceeds therefrom)at any time;

Restrictions on Indebtedness. The Borrower shall will not, and will not directly or indirectly permit any of its Subsidiaries to, create, incur, issue, assume, permit, suffer to exist guarantee or otherwise be or become liable with respect toremain liable, contingently or otherwise (collectivelyotherwise, “incur”), with respect to any Indebtedness; provided, however, that the Borrower may incur any of the following items of IndebtednessIndebtedness other than: (a) Indebtedness existing to the Lenders and the Administrative Agent arising under the Initial Senior Bond Indentures in an amount not to exceed the amount of Indebtedness outstanding under the Initial Senior Bond Indentures as any of the date of the Fifth Omnibus AmendmentLoan Documents; (b) Permitted Refinancing endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business; (c) Indebtedness incurred in connection with the acquisition after the date hereof of any real or personal property by the Borrower or such Subsidiary or under any Capitalized Lease, PROVIDED that the aggregate principal amount of such Indebtedness of the Borrower and its Subsidiaries shall not exceed the aggregate amount of $2,500,000 at any one time; (d) Indebtedness in exchange forrespect of Hedging Agreements so long as such arrangements are in the ordinary course of business and are not for speculative purposes; (e) Indebtedness existing on the date hereof and listed and described on SCHEDULE 9.1 hereto; (f) Indebtedness of (i) a Guarantor to the Borrower, so long as such Person is a Guarantor hereunder and remains a Subsidiary of the Borrower; (ii) the Borrower to a Guarantor, so long as such Guarantor remains a Subsidiary of the Borrower; and (iii) a Subsidiary which is not a Guarantor to another Subsidiary which is also not a Guarantor; (g) Indebtedness of the Borrower or any Guarantor to any Subsidiary which is not a Guarantor consisting of an intercompany loan so long as (i) the net proceeds aggregate amount of all such Indebtedness under this Section 9.1(g) does not exceed $10,000,000 at any time; and (ii) the payment obligations thereunder are subordinated to the prior payment in full in cash of all Obligations pursuant to subordination terms acceptable to the Administrative Agent; (h) Indebtedness of a Subsidiary which are used is not a Guarantor to renewthe Borrower or a Guarantor so long as the aggregate amount of all such Indebtedness under this Section 9.1(h) does not exceed $10,000,000 at any time; (i) third party Indebtedness of the Borrower or any Subsidiary incurred or assumed in connection with any Permitted Acquisition (including, refundwithout limitation, refinance, replace, defease or discharge Indebtedness consisting of earnout arrangements) so long as the aggregate amount of all such Indebtedness under this Section 9.1(i) does not exceed $10,000,000 at any time; (j) Indebtedness of the Borrower and any Subsidiary incurred in connection with the issuance by a financial institution (other than intercompany the Administrative Agent) of a letter of credit or other bank guarantee in a currency other than Dollars for the account of the Borrower or such Subsidiary, so long as (i) the Borrower had, prior to incurrence such Indebtedness, requested that such letter of credit be issued under this Credit Agreement in a currency other than Dollars and the Lenders did not approve such currency; and (ii) that was the aggregate amount of all such Indebtedness under this Section 9.1(j) does not exceed $2,500,000 at any time; and (k) any extension, renewal, refunding, refinancing or replacement of the Indebtedness permitted to be incurred under clause clauses (ac), (b) or (c) of this Section 2.5, provided that each of the following conditions shall have been satisfied: (1) the Senior Facility Agent shall have received a certificate from an Authorized Officer of the Borrower to the effect that the outstanding Senior Debt (other than Working Capital Debt and Indebtedness incurred pursuant to clauses (f), (g), (h), (i), (j), (k), (l), (me), and (oi) of this Section 2.5) (after giving effect to above, PROVIDED that the incurrence and application of proceeds aggregate principal amount of such Permitted Refinancing (2) using an interest rate equal to replacement Indebtedness shall not exceed the weighted average interest rate of all such Senior Debt outstanding after giving effect to the incurrence principal amount of the Permitted Refinancing Indebtedness existing on the date of such refinancing and the application of terms governing the proceeds therefrom);Indebtedness incurred in connection with any such extension, renewal, refunding, refinancing or replacement thereof shall be no more restrictive in any material respect than the corresponding terms governing such Indebtedness as in effect on the Closing Date.

Restrictions on Indebtedness. The Borrower shall will not, and will not directly or indirectly permit any of its Subsidiaries to, create, incur, issue, assume, permit, suffer to exist or otherwise be guarantee or become liable with respect toor remain liable, contingently or otherwise (collectivelyotherwise, “incur”), any Indebtedness; provided, however, that the Borrower may incur any of the following items of Indebtednesswith respect to Indebtedness other than: (a) Indebtedness existing to the Banks and the Agent arising under the Initial Senior Bond Indentures in an amount not to exceed the amount of Indebtedness outstanding under the Initial Senior Bond Indentures as any of the date of the Fifth Omnibus AmendmentLoan Documents; (b) Permitted Refinancing current liabilities of the Borrower or such Subsidiary incurred in the ordinary course of business not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services; (c) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of Section 5.8 hereof; (d) Indebtedness in respect of judgments or awards that have been in force for less than the applicable period for taking an appeal so long as execution is not levied thereunder or in respect of which the Borrower or such Subsidiary shall at the time in good faith be prosecuting an appeal or proceedings for review and in respect of which a stay of execution shall have been obtained pending such appeal or review; (e) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business; (f) Indebtedness in respect of documentary letters of credit issued in the ordinary course of business; (g) Indebtedness of the Borrower in respect of interest rate protection arrangements and exchange for, rate protection arrangements; (h) Indebtedness existing on the Closing Date and listed and described on SCHEDULE 6.1(h) hereto or any refinancing thereof on substantially similar terms as the net proceeds Indebtedness being refinanced; (i) Subordinated Debt; (j) obligations under Capitalized Leases; (k) Indebtedness incurred by the Borrower and its Subsidiaries under the Securitization; (l) Indebtedness in respect of which are used (i) intercompany loans and guaranties from the Borrower to renew, refund, refinance, replace, defease any of its Subsidiaries or discharge of any Indebtedness (other than intercompany Indebtedness) that was permitted to be incurred under clause (a), (b) of its Subsidiaries' obligations or (cii) of this Section 2.5, provided that each of the following conditions shall have been satisfied: (1) the Senior Facility Agent shall have received a certificate from an Authorized Officer intercompany loans and guaranties between Subsidiaries of the Borrower or (iii) intercompany loans and guaranties from any Guarantor to the effect Borrower or of any of the Borrower's obligations or (iv) guaranties from any Subsidiary of the Borrower of any of the Borrower's obligations, PROVIDED that the outstanding Senior Debt Investments corresponding to such Indebtedness are permitted under Sections 6.3(j) or 6.3(k) hereof; (m) Indebtedness incurred in connection with the acquisition after the Closing Date of any real or personal property by the Borrower or any Subsidiary of the Borrower as contemplated by Section 6.2(ix) hereof; (n) Indebtedness of the Borrower and its Subsidiaries in respect of Investments in and contingent obligations to make Investments in non-Guarantor Subsidiaries; PROVIDED THAT the Investments corresponding to such Indebtedness are permitted under Section 6.3(k) hereof; (o) Indebtedness secured by a lien on Real Estate of the Borrower or its Subsidiaries; PROVIDED that the aggregate amount of Indebtedness permitted pursuant to this Section 6.1(o) shall not, at any time, exceed the fair market value of the ReaL Estate securing such Indebtedness; (p) other Indebtedness of the Borrower and its Subsidiaries (whether or not such Subsidiaries are Guarantors), PROVIDED that (i) with respect to Indebtedness incurred by the Borrower or a Guarantor, such Indebtedness contains covenants that are no more restrictive on the Borrower or such Guarantor than Working Capital Debt the covenants contained in this Credit Agreement and (ii) immediately after such incurrence of Indebtedness, and after giving effect thereto on a PRO FORMA basis, no Default or Event of Default shall then exist; (q) Indebtedness of the Borrower and its Subsidiaries incurred pursuant to clauses that certain Revolving Credit Agreement, dated as of November 13, 1997, as amended, by and among the Borrower, the lending institutions party thereto, Fleet National Bank (f/k/a BankBoston, N.A.), as administrative and documentation agent for such lending institutions, The Chase Manhattan Bank, as syndication agent for such lending institutions, and the co-agents named therein; and (g)r) Indebtedness consisting of Investments permitted under Section 6.3(n) hereof. Notwithstanding the foregoing, at no time shall the aggregate amount of Indebtedness of the Borrower and its Subsidiaries consisting of guaranties and other Contingent Liabilities (h), excluding (i)) Indebtedness permitted pursuant to Section 6.1 to the extent such Indebtedness (or if such Indebtedness is a Contingent Liability of the Borrower and/or its Subsidiaries, (j), (k), (l), (m), the underlying Indebtedness relating to such Contingent Liability) is included in the calculation of Total Funded Indebtedness) and (oii) obligations in respect of documentary letters of credit) exceed, in the aggregate, 15% of the Stockholders' Equity of the Borrower at such time. For purposes of this Section, the amount of Contingent Liabilities in respect of interest rate protection arrangements and exchange rate protection arrangements permitted under Section 2.56.1(g) (after giving effect at any time shall be the net liability of the Borrower and its Subsidiaries under such arrangements at such time, calculated on a basis satisfactory to the incurrence and application of proceeds of such Permitted Refinancing (2) using an interest rate equal to the weighted average interest rate of all such Senior Debt outstanding after giving effect to the incurrence of the Permitted Refinancing Indebtedness and the application of the proceeds therefrom);Agent in accordance with accepted practice.

Restrictions on Indebtedness. The Borrower shall Borrowers will not directly or indirectly create, incur, issue, assume, permit, suffer to exist guarantee or otherwise be or become liable with respect toremain liable, contingently or otherwise (collectivelywhether by agreement to purchase any obligations, “incur”stock, assets, goods or services, or to supply or advance any funds, assets, goods or services or otherwise), with respect to any Indebtedness; providedIndebtedness other than the following, however, PROVIDED that no Default or Event of Default shall have occurred and be continuing at the Borrower may incur any time of the following items incurrence of Indebtednesssuch Indebtedness or after giving effect thereto: (a) Indebtedness existing to the Lenders and the Administrative Agent arising under the Initial Senior Bond Indentures in an amount not to exceed the amount of Indebtedness outstanding under the Initial Senior Bond Indentures as any of the date of the Fifth Omnibus AmendmentLoan Documents; (b) Permitted Refinancing endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business; (c) Subordinated Debt in an aggregate amount not to exceed $150,000,000 at any time outstanding; PROVIDED that in the event that any Subsidiary of the Parent guarantees any Subordinated Debt, the terms of such guaranty shall provide for the release of such guaranty upon the sale of stock or all or substantially all of the assets of such Subsidiary (even if such sale was made in a foreclosure); (d) Indebtedness incurred in connection with the acquisition or lease financing of any real or personal property by such Borrower or under any Capitalized Lease, PROVIDED that the aggregate principal amount of such Indebtedness of the Borrower in exchange for, or the net proceeds of which are used to renew, refund, refinance, replace, defease or discharge Borrowers shall not exceed $6,000,000 at any Indebtedness (other than intercompany Indebtedness) that was permitted to be incurred under clause (a), (b) or (c) of this Section 2.5, provided that each of the following conditions shall have been satisfied:one time; (1e) the Senior Facility Agent shall have received a certificate from an Authorized Officer Indebtedness in respect of the Borrower to the effect that the outstanding Senior Debt (other than Working Capital Debt and Indebtedness incurred Interest Rate Agreements entered into pursuant to clauses Section 8.14; (f)) Indebtedness existing on the date hereof and listed and described on SCHEDULE 9.1 hereto, (g)together with any renewals, (h), extensions or refinancings thereof on terms which (i), (j), (k), (l), (m)) do not increase the principal amount thereunder, and (oii) are not materially different than those in effect as of this Section 2.5the date hereof; PROVIDED that no such Indebtedness may be prepaid without prior written consent of the Required Lenders; (g) incurrence by any Borrower of guaranty, suretyship or indemnification obligations in connection with such Borrower's performance of services for its respective customers in the ordinary course of its business; (after giving effect h) Indebtedness with respect to landfill closure bonds of the Borrowers in an aggregate amount not to exceed $50,000,000; (i) Indebtedness with respect to the incurrence and application of proceeds of such Permitted RefinancingL/C Supported IRBs; (2j) using an interest rate equal Unpaid accrued dividends with respect to the weighted average interest rate of all such Senior Debt outstanding after giving effect Series C Convertible Preferred Stock and the Series D Convertible Preferred Stock to the incurrence extent treated as Indebtedness under GAAP; and (k) Indebtedness of the Permitted Refinancing Indebtedness and the application of the proceeds therefromIESI MO Corporation with respect to royalty payments secured by Liens permitted pursuant to Section 9.2.1(ix);.

Restrictions on Indebtedness. The Borrower shall Borrowers will not, and will not directly or indirectly permit any of their Subsidiaries to, create, incur, issue, assume, permit, suffer to exist guarantee or otherwise be or become liable with respect toremain liable, contingently or otherwise (collectivelyotherwise, “incur”), with respect to any Indebtedness; provided, however, that the Borrower may incur any of the following items of IndebtednessIndebtedness other than: (a) Indebtedness existing to the Lender arising under the Initial Senior Bond Indentures in an amount not to exceed the amount of Indebtedness outstanding under the Initial Senior Bond Indentures as any of the date of the Fifth Omnibus AmendmentLoan Documents; (b) Permitted Refinancing Indebtedness current liabilities of the Borrower Borrowers or their Subsidiaries incurred in exchange forthe ordinary course of business but not incurred through (i) the borrowing of money, or (ii) the net proceeds obtaining of which are used to renew, refund, refinance, replace, defease or discharge any Indebtedness (other than intercompany Indebtedness) that was permitted to be incurred under clause (a), (b) or credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services; (c) Indebtedness in respect of this Section 2.5taxes, provided assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that each payment therefor shall not at the time be required to be made in accordance with the provisions of ss.6.9; (d) Indebtedness in respect of judgments or awards that have been in force for less than the following conditions applicable period for taking an appeal so long as execution is not levied thereunder or in respect of which the Borrowers shall at the time in good faith be prosecuting an appeal or proceedings for review and in respect of which a stay of execution shall have been satisfied:obtained pending such appeal or review; (1e) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the Senior Facility Agent shall have received a certificate from an Authorized Officer ordinary course of business; (f) Indebtedness existing on the date of this Agreement and listed and described on SCHEDULE 8.1 hereto; (g) Indebtedness arising prior to the commencement of the Borrower to the effect that the outstanding Senior Debt (other than Working Capital Debt and Indebtedness incurred pursuant to clauses (f), (g), (h), (i), (j), (k), (l), (m), and (o) of this Section 2.5) (after giving effect to the incurrence and application of proceeds of such Permitted Refinancing (2) using an interest rate equal to the weighted average interest rate of all such Senior Debt outstanding after giving effect to the incurrence of the Permitted Refinancing Indebtedness and the application of the proceeds therefrom);Proceedings; and

Restrictions on Indebtedness. The Borrower No Credit Party shall not directly or indirectly create, incur, issuecreate, assume, permit, suffer to exist guarantee or otherwise be or in any way become liable with respect tofor, contingently or otherwise (collectivelypermit to exist, “incur”), any Indebtedness; provided, however, that the Borrower may incur any of the following items of IndebtednessIndebtedness other than: (a) Indebtedness existing under pursuant to the Initial Senior Bond Indentures in an amount not to exceed the amount of Indebtedness outstanding under the Initial Senior Bond Indentures as of the date of the Fifth Omnibus AmendmentNote Documents; (b) Permitted Refinancing Indebtedness consisting of Contingent Obligations described in clause (i) of the definition thereof and permitted pursuant to Section 9.7; (c) Indebtedness existing on the Closing Date and described in Schedule 4.9A (excluding the Senior Obligations) and any refinancings, extensions, renewals or replacements of such Indebtedness or interest or fees payable thereon; provided, however that the principal amount of such Indebtedness is not increased, neither the final maturity nor the weighted average life to maturity of such Indebtedness is decreased, the direct or contingent obligors with respect thereto are not expanded or changed in any other manner adverse to the Purchasers or which would have a Material Adverse Effect, such Indebtedness, if subordinated to the obligations of the Issuer hereunder, remains so subordinated on terms no less favorable to the Purchasers and no more restrictive on the Credit Parties than the Subordinated Indebtedness being refinanced, and in an amount not less than the amount outstanding at the time of refinancing; (d) Indebtedness of the Borrower in exchange forIssuer to Guarantors, and of Guarantors to the Issuer or the net proceeds of which are used to renew, refund, refinance, replace, defease or discharge any Indebtedness (other than intercompany Indebtedness) that was permitted to be incurred under clause (a), (b) or (c) of this Section 2.5, Guarantors; provided that each such Indebtedness is subordinated to the Obligations pursuant to a subordination agreement in form and substance reasonably acceptable to the Required Purchasers; (e) Guarantees of the following conditions shall have been satisfied:Issuer or any Guarantor in respect of Indebtedness or other obligations not prohibited hereunder of the Issuer or any Guarantor; (1f) Indebtedness not to exceed $500,000 in the Senior Facility Agent shall have received a certificate from an Authorized Officer aggregate at any time outstanding, consisting of the Borrower to the effect that the outstanding Senior Debt Capital Lease Obligations or secured by Liens permitted by subsection 9.1(h); (other than Working Capital Debt and g) unsecured intercompany Indebtedness incurred permitted pursuant to clauses (fsubsection 9.4(c), (g), ; (h)) trade debt incurred in the Ordinary Course of Business, including any such trade debt incurred among the Credit Parties; (i), ) Senior Obligations; and (j), (k), (l), (m), and (o) of this Section 2.5) (after giving effect to other unsecured Indebtedness not exceeding in the incurrence and application of proceeds of such Permitted Refinancing (2) using an interest rate equal to the weighted average interest rate of all such Senior Debt aggregate at any time outstanding after giving effect to the incurrence of the Permitted Refinancing Indebtedness and the application of the proceeds therefrom);$250,000.

Restrictions on Indebtedness. The Borrower shall will not, and will not directly or indirectly permit its respective Subsidiaries to, create, incur, issue, assume, permit, suffer to exist guarantee or otherwise be or become liable with respect toremain liable, contingently or otherwise (collectivelyotherwise, “incur”), with respect to any Indebtedness; provided, however, that the Borrower may incur any of the following items of IndebtednessIndebtedness other than: (a) Indebtedness existing to the Lenders arising under the Initial Senior Bond Indentures in an amount not to exceed the amount of Indebtedness outstanding under the Initial Senior Bond Indentures as any of the date of the Fifth Omnibus AmendmentLoan Documents; (b) Permitted Refinancing current liabilities of the Borrower, the Guarantors or their respective Subsidiaries incurred in the ordinary course of business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services; (c) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of (S)7.8; (d) Indebtedness in respect of judgments only to the extent, for the period and for an amount not resulting in a Default; (e) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business; (f) Indebtedness in respect of reverse repurchase agreements having a term of not more than 180 days with respect to Investments described in (S)8.3(d) or (e); (g) subject to the provisions of (S)9, Indebtedness of the Borrower and its Subsidiaries; provided that, unless otherwise approved by Agent, no Indebtedness incurred after the Closing Date that is recourse to Borrower shall bear a maturity date that is sooner than 180 days after the Maturity Date; provided further that without the consent of Agent Indebtedness of Borrower entered into in exchange for, or the net proceeds ordinary course of which are used business that is secured by Real Estate and is recourse to renew, refund, refinance, replace, defease or discharge any Indebtedness (other Borrower in an aggregate amount not greater than intercompany Indebtedness) $30,000,000.00 may mature on a date that was permitted to be incurred under clause (a), (b) or (c) of this Section 2.5, provided that each of is not sooner than 90 days after the following conditions shall have been satisfied:Maturity Date; (1h) Indebtedness arising under the Senior Facility Agent shall have received a certificate from an Authorized Officer Interest Rate Contract entered into pursuant to (S)10.16; and (i) unsecured Indebtedness of Subsidiaries of the Borrower to Borrower provided that repayment of such Indebtedness shall be subordinate at all times to the effect that repayment of the outstanding Senior Debt (other than Working Capital Debt and Indebtedness incurred Obligations pursuant to clauses (f), (g), (h), (i), (j), (k), (l), (m), and (o) of this Section 2.5) (after giving effect a subordination agreement reasonably satisfactory to the incurrence and application of proceeds of such Permitted Refinancing (2) using an interest rate equal to the weighted average interest rate of all such Senior Debt outstanding after giving effect to the incurrence of the Permitted Refinancing Indebtedness and the application of the proceeds therefrom);Agent.

Restrictions on Indebtedness. The Neither the Borrower shall not directly nor the Guarantor will, or indirectly will permit any of the other Transaction Parties to, create, incur, issue, assume, permit, suffer to exist guarantee or otherwise be or become liable with respect toremain liable, contingently or otherwise (collectivelyotherwise, “incur”), with respect to any Indebtedness; provided, however, that the Borrower may incur any of the following items of IndebtednessIndebtedness other than: (a) Indebtedness existing to the Agent or any of the Banks under the Initial Senior Bond Indentures in an amount not to exceed the amount of Indebtedness outstanding under the Initial Senior Bond Indentures as of the date of the Fifth Omnibus AmendmentLoan Documents or any Interest Rate Agreement; (b) Permitted Refinancing Indebtedness in respect of obligations of the Borrower or Xxxxxxxxx Xxxxx Merchandising under Capitalized Leases which does not exceed $2,500,000 in exchange for, or the net proceeds of which are used to renew, refund, refinance, replace, defease or discharge aggregate outstanding at any Indebtedness (other than intercompany Indebtedness) that was permitted to be incurred under clause (a), (b) or time; (c) of this Section 2.5, provided that each liabilities (including all liabilities under leases other than Capitalized Leases) of the following conditions Borrower or any of its Subsidiaries incurred in the ordinary course of business not incurred through the borrowing of money, Capitalized Leases or the obtaining of credit (except credit on an open account customarily extended and in fact extended in connection with normal purchases of goods and services); (d) Indebtedness owed by the Borrower or Xxxxxxxxx Xxxxx Merchandising to trade vendors, in the amount of the cost to the Borrower of inventory on consignment from such trade vendors not to exceed $1,500,000 at any time outstanding; (e) Indebtedness in respect of judgments or awards that have been in force for less than the applicable period for taking an appeal so long as execution is not levied thereunder or in respect of which the applicable Transaction Party shall at the time in good faith be prosecuting an appeal or proceedings for review and in respect of which a stay of execution shall have been satisfied:obtained pending such appeal or review; (1f) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the Senior Facility Agent ordinary course of business; (g) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall have received a certificate from an Authorized Officer not at the time be required to be made in accordance with the provisions of Section 8.5; (h) Indebtedness of the Borrower to the effect that the outstanding Senior Debt (other than Working Capital Debt and Indebtedness incurred pursuant to clauses (f), (g), (h), Guarantor; (i)) obligations in respect of the fees and related expenses payable to Xxxxxxxx Xxxx & Xxxxxx, (j), (k), (l), (m)X.X. to the extent such fees and expenses are permitted by Section 9.11, and (oii) other obligations in respect of fees and expenses payable in connection with the Loan Documents, not to exceed $500,000 in aggregate amount; (j) Indebtedness owing to the Borrower by (i) the Guarantor in respect of obligations evidencing advances made by the Borrower from time to time equal to expenses incurred in the ordinary course of business by the Guarantor and payable by the Guarantor within thirty (30) days of receipt of such advance from the Borrower and (ii) of any Subsidiary of the Borrower party to the Guaranty; (k) Indebtedness consisting of liabilities resulting from the marking up of the Borrower's existing leases to reflect market rents; (l) existing Indebtedness not included above and listed on SCHEDULE 9.1 hereto; and (m) other Indebtedness not included in the foregoing provisions of this Section 2.5) (after giving effect 9.1 not to exceed $750,000 in the incurrence and application of proceeds of such Permitted Refinancing (2) using an interest rate equal to the weighted average interest rate of all such Senior Debt outstanding after giving effect to the incurrence of the Permitted Refinancing Indebtedness and the application of the proceeds therefrom);aggregate at any time outstanding.

Restrictions on Indebtedness. The Borrower shall not directly or indirectly createwill not, nor will it permit any Subsidiary of the Borrower to, issue, incur, issue, assume, permitcreate, suffer to exist or otherwise be or become liable with respect tofor, contingently or otherwise (collectivelyotherwise, “incur”), or have outstanding any Indebtedness; provided, however, that the Borrower may incur any of foregoing provisions shall not restrict nor operate to prevent the following items of Indebtedness: (a) Indebtedness existing under the Initial Senior Bond Indentures in an amount not to exceed the amount of Indebtedness outstanding under the Initial Senior Bond Indentures as of the date of the Fifth Omnibus AmendmentObligations; (b) Permitted Refinancing Non-Recourse Indebtedness of any Project Finance Subsidiary; (c) so long as the Borrower would be in compliance with Section 7.17 hereof (calculated as of the date of, and after giving effect to, the incurrence of such Indebtedness), secured Indebtedness (excluding Indebtedness of the type described in (e) below but including the pledge of stock or similar equity interest of any Project Finance Subsidiary or any Subsidiary which is an entity whose sole purpose and extent of business activities is to own the stock or similar equity interest of such Project Finance Subsidiary) (A) set forth on Schedule 7.15(c) hereto, (B)(i) of BHP or CLF&P, (ii) evidencing the deferred purchase price of newly acquired property or incurred to finance the acquisition of personal property of the Borrower or a Subsidiary of the Borrower used in exchange forthe ordinary course of business of the Borrower or Subsidiary, (iii) constituting Capitalized Lease Obligations or with respect to synthetic (or similar type) lease arrangements, or (iv) incurred in connection with the net proceeds performance of which are used to renewtenders, refundstatutory obligations, refinancebids, replace, defease leases or discharge any Indebtedness other similar obligations (other than intercompany Indebtednessfor borrowed money) entered into in the ordinary course of business or to secure obligations on performance bonds; provided, that was the aggregate amount of Indebtedness permitted to be incurred under by clause (a), (b) or (cB)(iv) of this Section 2.57.15(c) at any time outstanding shall not exceed 5% of Consolidated Assets as reflected on the most recent balance sheet delivered by the Borrower pursuant to Section 7.6 hereof and (C) constituting first mortgage bond debt which is issued or incurred by Black Hills Utility Holdings or any of its direct or indirect Subsidiaries to finance the design, permitting, construction, ownership, operation or maintenance of utility properties which does not mature prior to the Termination Date, as extended from time to time in accordance with the terms hereof, and is not in excess of an amount equal to fifty percent (50%) of the net book value of the property, plant and equipment of Black Hills Utility Holdings (as reported in the most recent quarterly financial statements which were prepared in accordance with GAAP); provided, the Borrower shall promptly provide the Administrative Agent with a copy of any documentation evidencing such Indebtedness in excess of $25,000,000 and any modification to such Indebtedness; (d) so long as the Borrower would be in compliance with Section 7.17 hereof (calculated as of the date of, and after giving effect to, the incurrence of such Indebtedness), other Indebtedness (excluding Indebtedness of the type described in (e) below) which is unsecured and either junior in right of payment to the Obligations or pari passu to the Obligations or is equally and ratably secured with the Obligations, provided that each the Borrower shall promptly provide the Administrative Agent with a copy of the following conditions shall have been satisfied:any documentation evidencing such Indebtedness in excess of $25,000,000 and any modification to such Indebtedness; (1e) the Senior Facility Agent shall have received a certificate intercompany loans (i) from an Authorized Officer (x) any Subsidiary of the Borrower to the effect Borrower so long as such loans are subordinated to the Obligations on terms reasonably satisfactory to the Administrative Agent, and (y) the Borrower to a Subsidiary of the Borrower and (ii) among Wholly-Owned Subsidiaries; (f) if the Borrower consummates the Acquisition, the following Indebtedness of Target, Target LLC or any of their respective Affiliates that are acquired in connection with the outstanding Acquisition: (i) up to $95,000,000 principal amount of 3.98% Senior Debt Secured Notes, Series A, due September 29, 2019, of Target issued pursuant to that certain Note Purchase Agreement dated September 29, 2014 among Target and each of the purchasers party thereto, (ii) up to $325,000,000 principal amount of 5.90% Senior Notes due 2017 of Target LLC issued pursuant to that certain Indenture dated as of April 16, 2007 between Target LLC and U.S. Bank National Association, as trustee, and (iii) up to $300,000,000 of other than Working Capital Debt and secured or unsecured Indebtedness incurred after the date hereof and prior to the consummation of the Acquisition; (g) [Reserved]; (h) Permitted Derivative Obligations; and (i) Indebtedness pursuant to clauses Long-Term Guaranties. Indebtedness shall only be permitted under (fd), (ge), (h), and (i) above to the extent such Indebtedness will have a priority of payment with the Obligations which is no greater than pari passu (and with respect to clause (e), (j), (k), (l), (m), and (o) of this Section 2.5) (after giving effect to the incurrence and application of proceeds of extent such Permitted Refinancing (2) using an interest rate equal Indebtedness is subordinated to the weighted average interest rate of all Obligations as set forth in such Senior Debt outstanding after giving effect to the incurrence of the Permitted Refinancing Indebtedness and the application of the proceeds therefromclause);.

Restrictions on Indebtedness. The Borrower shall will not, and will not directly or indirectly permit any of its Subsidiaries to, create, incur, issue, assume, permit, suffer to exist guarantee or otherwise be or become liable with respect toremain liable, contingently or otherwise (collectivelyotherwise, “incur”), with respect to any Indebtedness; provided, however, that the Borrower may incur any of the following items of IndebtednessIndebtedness other than: (a) Indebtedness existing to the Banks and the Agent arising under the Initial Senior Bond Indentures in an amount not to exceed the amount of Indebtedness outstanding under the Initial Senior Bond Indentures as any of the date of the Fifth Omnibus AmendmentLoan Documents; (b) Permitted Refinancing Indebtedness endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the Borrower in exchange for, or the net proceeds ordinary course of which are used to renew, refund, refinance, replace, defease or discharge any Indebtedness (other than intercompany Indebtedness) that was permitted to be incurred under clause (a), (b) or business; (c) Indebtedness incurred in connection with the acquisition after the date hereof of this Section 2.5any real or personal property by the Borrower or such Subsidiary or under any Capitalized Lease, provided that each of the following conditions shall have been satisfied: (1) the Senior Facility Agent shall have received a certificate from an Authorized Officer of the Borrower to the effect that the outstanding Senior Debt (other than Working Capital Debt and Indebtedness incurred pursuant to clauses (f)that, (g), (h), (i), (j), (k), (l), (m), and (o) of this Section 2.5) (after giving effect to the incurrence and application of proceeds of such Permitted Refinancing (2) using an interest rate equal to the weighted average interest rate of all such Senior Debt outstanding after giving effect to the incurrence of such Indebtedness, the Permitted Refinancing Borrower shall be in compliance with its covenants in Section 9; (d) Indebtedness existing on the date hereof and the application listed and described on Schedule 8.1 hereto; (e) Indebtedness of a Subsidiary of the proceeds therefrom)Borrower to the Borrower or to another Subsidiary of the Borrower; (f) Indebtedness in respect of guaranties of dealer store leases, provided that the maximum aggregate guaranty obligation in respect thereof shall not exceed $2,000,000 at any time; (g) Indebtedness in respect of foreign currency exchange, future or option contracts entered into in the ordinary course of business for the purpose of foreign currency risk hedging; (h) Indebtedness in respect of reimbursement obligations under letters of credit (other than Letters of Credit issued pursuant to Section 4 hereof) and bankers' acceptances incurred in the ordinary course of business, provided that the aggregate maximum amount available for drawing by the beneficiaries of such letters of credit and banker's acceptances outstanding at any time shall not exceed $130,000,000; (i) Indebtedness in respect of guaranties by the Borrower or any Subsidiary of Indebtedness of any Subsidiary permitted by this Section 8.1; (j) Indebtedness in respect of swap, future or option contracts the value of which are based on interest rates or other interest rate hedging arrangements entered into in the ordinary course of business; and (k) other Indebtedness not exceeding in the aggregate $5,000,000 at any time.

Restrictions on Indebtedness. The Borrower shall will not, and will not directly or indirectly permit any of its Subsidiaries to, create, incur, issue, assume, permit, suffer to exist guarantee or otherwise be or become liable with respect toremain liable, contingently or otherwise (collectivelyotherwise, “incur”), with respect to any Indebtedness; provided, however, that the Borrower may incur any of Indebtedness other than the following items (each of Indebtedness:which categories shall be interpreted as being separately permitted, notwithstanding any overlap among such categories): (a) Indebtedness existing to the Banks and the Agent arising under the Initial Senior Bond Indentures in an amount not to exceed the amount of Indebtedness outstanding under the Initial Senior Bond Indentures as any of the date of the Fifth Omnibus AmendmentLoan Documents; (b) Permitted Refinancing endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business; (c) Indebtedness (i) incurred in connection with the secured financing of any real or personal property by the Borrower or any of its Domestic Subsidiaries, (ii) under any Synthetic Lease or (iii) under any Capitalized Lease, provided that the aggregate principal amount of such Indebtedness (including under any such Synthetic Lease or Capitalized Lease) of the Borrower and its Domestic Subsidiaries shall not exceed the aggregate amount of $5,000,000 at any one time; (d) Indebtedness of the Borrower in exchange for, or and its Domestic Subsidiaries existing on the net proceeds date hereof and listed and described on Schedule8.1(d) hereto; (e) Indebtedness of which are used to renew, refund, refinance, replace, defease or discharge any the Borrower's Foreign Subsidiaries existing on the date hereof and listed and described on Schedule8.1(e) hereto; (f) Indebtedness (other than intercompany Indebtedness) that was permitted to be incurred under clause (a), (b) or (ci) of this Section 2.5, provided that each of the following conditions shall have been satisfied: (1) the Senior Facility Agent shall have received a certificate from an Authorized Officer Subsidiary of the Borrower to the effect Borrower or to another Subsidiary of the Borrower, (ii) of the Borrower to any Guarantor, or (iii) of the Borrower to World Properties in an aggregate principal amount not to exceed $30,000,000; provided that in each of cases (ii) and (iii) above, such Indebtedness shall be subordinated to the outstanding Senior Debt Obligations on terms and conditions satisfactory to the Agent and the Banks; (g) Indebtedness in respect of borrowings against the cash value of life insurance policies owned by the Borrower or any of its Subsidiaries in an aggregate principal amount not to exceed $6,000,000; (h) Indebtedness of Foreign Subsidiaries (other than Working Capital Debt as permitted by §8.1(f)) which, when aggregated with amounts outstanding under §8.1(e), shall not exceed fifty percent (50%) of Consolidated Foreign Tangible Assets at any time; (i) Indebtedness (in addition to and other than Indebtedness incurred otherwise permitted and classified as Investments pursuant to paragraphs (g) and (h) of Section 8.3 hereof) in respect of guaranties by the Borrower or any of its Domestic Subsidiaries of Indebtedness of Foreign Subsidiaries or Joint Ventures ("Guarantied JV/Foreign Indebtedness"); provided that the aggregate principal amount of all Guarantied JV/Foreign Indebtedness shall not exceed $5,000,000 at any time outstanding; (j) Indebtedness in respect of Derivative Contracts entered into solely for hedging (and not speculative) purposes in the ordinary course of the Borrower's (or the applicable Subsidiary's) business; and (k) unsecured Indebtedness of the Borrower and its Domestic Subsidiaries other than as permitted by clauses (f), (g), (h), (i), a) through (j), (k), (l), (m), and (o) of this Section 2.5) (after giving effect to above; provided that the incurrence and application of proceeds of such Permitted Refinancing (2) using an interest rate equal to the weighted average interest rate aggregate principal amount of all such Senior Debt outstanding after giving effect to the incurrence of the Permitted Refinancing Indebtedness and the application of the proceeds therefrom);shall not exceed $5,000,000 at any time outstanding.

Restrictions on Indebtedness. The Borrower None of the Borrowers or Excluded Subsidiaries shall not directly become or indirectly be a guarantor or surety of, or otherwise create, incur, issue, assume, permit, suffer to exist or otherwise be or become liable with respect toremain liable, contingently or otherwise (collectivelyotherwise, “incur”), with respect to any Indebtedness; provided, howeveror become or be responsible in any manner (whether by agreement to purchase any obligations, that the Borrower may stock, assets, goods or services, or to supply or advance any funds, assets, goods or services or otherwise) with respect to any undertaking or Indebtedness of any other Person, or incur any of the following items of IndebtednessIndebtedness other than: (a) Indebtedness existing of the Borrowers to the Lenders, the Issuing Lender and the Agents arising under this Credit Agreement and the Initial Loan Documents; (b) Subject to §8.9, Seller Subordinated Debt not to exceed $15,000,000 in aggregate outstanding principal amount at any time; (c) Existing Indebtedness of the Borrowers with respect to loans and Capitalized Leases listed on Schedule 8.1(c), on the terms and conditions in effect as of the date hereof, together with any renewals, extensions or refinancings thereof on terms which are not materially different than those in effect as of the Effective Date; (d) Endorsements for collection, deposit or negotiation and warranties of products or services (including unsecured performance and payment bonds (“Performance Bonds”)), in each case incurred in the ordinary course of business; (e) Indebtedness of the Borrowers incurred in connection with the acquisition or lease of any equipment by the Borrowers under any Synthetic Lease, Capitalized Lease or other lease arrangement or purchase money financing; provided that the aggregate outstanding principal amount of such Indebtedness of the Borrowers (including Indebtedness of such type listed on Schedule 8.1(c)) shall not exceed $30,000,000 at any time; (f) Indebtedness of the Borrowers in respect of Swap Contracts satisfactory to the Administrative Agent; (g) Indebtedness of the Borrowers under fuel price swaps, fuel price caps, and fuel price collar or floor agreements, and similar agreements or arrangements designed to protect against or manage fluctuations in fuel prices with respect to fuel purchased in the ordinary course of business of the Borrowers (“Fuel Derivatives Obligations”), provided that the aggregate notional amount of such agreements do not exceed $10,000,000 outstanding at any time, the maturity of such agreements do not exceed thirty-six (36) months, and the terms are consistent with past practices of the Borrowers; (h) Other unsecured Indebtedness incurred in connection with the acquisition by the Borrowers of real or personal property, including any Indebtedness incurred with respect to non-compete payments in connection with such acquisition(s), provided that the aggregate outstanding principal amount of such Indebtedness of the Borrowers shall not exceed $15,000,000 at any time; (i) Intercompany Indebtedness among the Borrowers; (j) Indebtedness with respect to mandatory redemption obligations as set forth in the Series A Certificate and accrued dividends on the Borrower’s preferred stock; provided that no Restricted Payments shall be made with respect to such Indebtedness during the term of this Credit Agreement except as set forth in §8.6 hereof, or as otherwise permitted by the prior written consent of the Required Lenders; (k) Senior Bond Indentures Subordinated Debt not to exceed $250,000,000 in an aggregate principal amount; (l) Surety and similar bonds and completion bonds and bid guarantees provided by or issued on behalf of the Borrowers with respect to the closure, final-closure and post-closure liabilities related to landfills owned or operated by the Borrowers; provided that the aggregate amount of such Indebtedness shall not exceed $70,000,000 at any time outstanding; (m) indemnification, adjustment of purchase price or similar obligations, in each case, incurred or assumed in connection with the Permitted Acquisitions or permitted dispositions of Capital Stock or assets of the Borrowers; provided that the maximum aggregate liability in respect of all such obligations shall at no time exceed the gross proceeds, including non-cash proceeds, (the fair market value of such non-cash proceeds being measured at the time received or paid and without giving effect to any subsequent changes in value) actually received or paid by the Borrowers in connection with such Permitted Acquisition or disposition; (n) Indebtedness arising in connection with (i) the acquisition by the Parent of the Capital Stock of Xxxxxxxx Landfill, Inc., a Massachusetts corporation (“Hardwick”), pursuant to the terms of that certain Stock Purchase Agreement, dated as of January 3, 2003 (the “Xxxxxxxx Purchase Agreement”), by and among the Parent, Xxxxxxxx and the shareholders of Xxxxxxxx; provided that the original principal amount of such Indebtedness does not exceed $2,000,000, and (ii) the exercise by any Borrower of the option to purchase the Capital Stock or the assets of Xxxxx Enterprises, LLC pursuant to the terms and conditions set forth in the Purchase Option Agreement attached as Exhibit D to the Xxxxxxxx Purchase Agreement (the “Xxxxxxxx Option Agreement”); provided that the original principal amount of such Indebtedness does not exceed 25% of the Base Purchase Price (as defined in the Xxxxxxxx Option Agreement), and is calculated as set forth in the applicable provisions of the Xxxxxxxx Option Agreement; and (o) Guarantees of Indebtedness permitted pursuant to this §8.1 made by any of the Borrowers or their Subsidiaries, the amount of such guarantees not to exceed the amount of Indebtedness outstanding under the Initial Senior Bond Indentures as of the date of the Fifth Omnibus Amendment; (b) Permitted Refinancing Indebtedness of the Borrower in exchange for, or the net proceeds of which are used to renew, refund, refinance, replace, defease or discharge any Indebtedness (other than intercompany underlying Indebtedness) that was permitted to be incurred under clause (a), (b) or (c) of this Section 2.5, provided that each of the following conditions shall have been satisfied: (1) the Senior Facility Agent shall have received a certificate from an Authorized Officer of the Borrower to the effect that the outstanding Senior Debt (other than Working Capital Debt and Indebtedness incurred pursuant to clauses (f), (g), (h), (i), (j), (k), (l), (m), and (o) of this Section 2.5) (after giving effect to the incurrence and application of proceeds of such Permitted Refinancing (2) using an interest rate equal to the weighted average interest rate of all such Senior Debt outstanding after giving effect to the incurrence of the Permitted Refinancing Indebtedness and the application of the proceeds therefrom);.

Restrictions on Indebtedness. The Borrower shall Borrowers will not, and will not directly or indirectly permit any of their Restricted Subsidiaries to, create, incur, issue, assume, permit, suffer to exist guarantee or otherwise be or become liable with respect toremain liable, contingently or otherwise (collectivelyotherwise, “incur”), with respect to any Indebtedness; provided, however, that the Borrower may incur any of the following items of IndebtednessIndebtedness other than: (a) Indebtedness existing to the Lenders, the Issuing Lender and the Administrative Agent arising under the Initial Senior Bond Indentures in an amount not to exceed the amount of Indebtedness outstanding under the Initial Senior Bond Indentures as any of the date of the Fifth Omnibus AmendmentLoan Documents; (b) Permitted Refinancing Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of (Section)9.8; (c) Indebtedness in respect of judgments or awards that have been in force for less than the applicable period for taking an appeal so long as execution is not levied thereunder or in respect of which any Borrower or any of their Restricted Subsidiaries shall at the time in good faith be prosecuting an appeal or proceedings for review and in respect of which a stay of execution shall have been obtained pending such appeal or review; (d) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business; (e) Indebtedness of any of the Borrowers or any of their Restricted Subsidiaries to any of the Borrowers or any of their other Restricted Subsidiaries consisting of rights of reimbursement, contribution, subrogation and the like in connection with the joint and several obligations of the Borrowers and their Restricted Subsidiaries under the Loan Documents; (f) Indebtedness incurred (other than under this Credit Agreement) or assumed in connection with the acquisition after the date hereof of any real or personal property by the Borrowers or their Restricted Subsidiaries (including Indebtedness in respect of Capitalized Leases), provided that the aggregate principal amount of such Indebtedness of (i) the US Borrower and its Restricted Subsidiaries shall not exceed the amount of $25,000,000 at any one time and (ii) GRO and its Restricted Subsidiaries shall not exceed the aggregate amount of $7,500,000 at any one time; (g) Indebtedness existing on the date hereof and listed and described on Schedule 10.1 hereto including any extensions or refinancings thereof on substantially similar terms as the Indebtedness being refinanced and provided there is no increase in the amount thereof; (h) Indebtedness of (i) the US Borrower to any of the US Guarantors or any of the US Guarantors to the US Borrower or any of the other US Guarantors or (ii) the Canadian Borrower to any of the Canadian Guarantors or any of the Canadian Guarantors to the Canadian Borrower or any of the other Canadian Guarantors or (iii) (A) the US Borrower to the Canadian Borrower or any of the Canadian Guarantors, (B) the Canadian Borrower to the US Borrower or any of the US Guarantors, or (C) any of the Canadian Guarantors to the US Borrower or any of the US Guarantors, or (D) any of the US Guarantors to the Canadian Borrower or any of the Canadian Guarantors, provided that the aggregate amount of Indebtedness under this clause (iii) together with Investments permitted under (Section)10.3(e)(ii) shall not exceed $10,000,000 at any one time; (i) Indebtedness of the Borrowers with respect to Hedging Agreements provided that such Hedging Agreements are in form and substance acceptable to the Administrative Agent; (j) Indebtedness in respect of performance, surety, statutory, insurance, appeal or similar bonds obtained in the ordinary course of business; (k) Indebtedness of the Borrowers or any of their Restricted Subsidiaries in respect of guaranties of obligations in connection with Permitted Acquisitions and other Investments permitted by (Section)10.3(i) and (k) and for the operation of any of their Restricted Subsidiaries (in each case, to the extent the underlying Indebtedness with respect thereto is otherwise permitted under this (Section)10.1), not to exceed $15,000,000 in aggregate for all such permitted at any time; (l) Indebtedness of the US Borrower with respect to the put option of IFC pursuant to the IFC Documents; (m) Indebtedness with respect to the US Borrower's $8,000,000 Letter of Credit in exchange forfavor of CFCM until Technical Completion (as defined in the IFC Documents); (n) Indebtedness with respect to the US Borrower's $7,500,000 guarantee of CFCM's obligations to IFC until Financial Completion (as defined in the IFC Documents); (o) Indebtedness with respect to the Series A Preferred Stock, or the net proceeds of which are used to renew, refund, refinance, replace, defease or discharge any Indebtedness (other than intercompany Indebtedness) that was permitted if required to be incurred under clause (a), (b) or (c) of this Section 2.5so characterized, provided that each of the following conditions no Distributions or Restricted Payments shall have been satisfied:be made with respect to such Indebtedness, except in accordance with (Section)10.4; and (1p) Other Indebtedness not included in the Senior Facility Agent shall have received a certificate from an Authorized Officer of the Borrower to the effect that the outstanding Senior Debt (other than Working Capital Debt and Indebtedness incurred pursuant to clauses (f), (g), (h), (i), (j), (k), (l), (m), and (o) foregoing provisions of this Section 2.5) (after giving effect Section)10.1 not to exceed $15,000,000 in the incurrence and application of proceeds of such Permitted Refinancing (2) using an interest rate equal to the weighted average interest rate of all such Senior Debt outstanding after giving effect to the incurrence of the Permitted Refinancing Indebtedness and the application of the proceeds therefrom);aggregate at any time outstanding.

Restrictions on Indebtedness. The Borrower shall not directly or indirectly createCreate, incur, issuesuffer or permit to exist, assumeor assume or guarantee, permiteither directly or indirectly, suffer to exist or otherwise be become or become remain liable with respect to, contingently or otherwise (collectively, “incur”), any Indebtedness, except the following: (a) Indebtedness to the Lenders and the Agent under this Agreement, the Term Loan Notes, the Revolving Credit Notes, the other Lender Agreements. (b) Indebtedness (i) described on Schedule 5.16 hereto and (ii) any renewals, extensions and refundings thereof which do not increase the amount thereof, extend the weighted average maturity of any thereof by more than 25%, provide any collateral in excess of collateral currently securing such Indebtedness (after giving effect to any existing after-acquired property clause) or grant, modify or amend any rights, remedies or interests of the holders thereof in a manner materially adverse to the interests of the Agent or the Lenders. (c) The Senior Subordinated Notes and the subordinated guaranties of the Restricted Subsidiaries with respect thereto. (d) The Series A Exchangeable Preferred Stock and the Series B Preferred Stock. (e) Subordinated Indebtedness incurred to the sellers of assets or stock in connection with Permitted Acquisitions, provided that such Indebtedness is unsecured, has a cash interest rate of not greater than 12% per annum, has no scheduled amortization until after payment in full of all Lender Obligations and is subordinated to the prior payment in full in cash of all Lender Obligations on terms and conditions approved in writing by the Agent. (i) Real Estate Guaranties; provided that the sum of Real Estate Guaranties and Direct Unrestricted Subsidiary Investments shall not exceed $25,000,000 at any time; (ii) (A) Capitalized Lease Obligations and (B) Indebtedness of the Borrowers to purchase tangible assets to be used in the Borrower's operations in an amount not to exceed 100% of the purchase price of such assets, which Indebtedness may be secured by the assets so purchased but by no other assets; provided, however, that the Borrower may incur any aggregate amount under clauses (A) and (B) of the following items of Indebtedness:this Section 9.1(f)(ii) shall not exceed $50,000,000; (aiii) Indebtedness existing under the Initial Senior Bond Indentures of Persons that become Restricted Subsidiaries in connection with Permitted Acquisitions and not incurred in anticipation of such Permitted Acquisitions in an aggregate amount not to exceed $50,000,000; and (iv) Other unsecured Indebtedness in an amount not to exceed $25,000,000; provided, however, that the total amount of all Indebtedness outstanding at any time under the Initial Senior Bond Indentures as of the date of the Fifth Omnibus Amendment;this clause (f) shall not exceed $100,000,000. (bg) Indebtedness consisting of indemnification and price adjustment obligations incurred in connection with Permitted Refinancing Acquisitions. (h) Indebtedness on account of the Borrower in exchange for, or the net proceeds of which are used to renew, refund, refinance, replace, defease or discharge any Indebtedness consolidated current liabilities (other than intercompany Indebtednessfor money borrowed) incurred in the normal and ordinary course of business. (i) Indebtedness in respect of (i) taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that was permitted payment thereof shall not at the time be required to be incurred under clause (a)made in accordance with the provisions of Section 8.2 hereof, (bii) judgments or (c) awards which have been in force for less than the applicable appeal period so long as execution is not levied thereunder or in respect of this Section 2.5, provided that each which American Ski or the Restricted Subsidiary subject to such judgment or award shall at the time in good faith be prosecuting an appeal or proceedings for review in a manner satisfactory to the Agent and in respect of the following conditions which a stay of execution shall have been satisfied:obtained pending such appeal or review and for which adequate reserves have been established in accordance with generally accepted accounting principles and (iii) endorsements made in connection with the deposit of items for credit or collection in the ordinary course of business. (1j) the Senior Facility Agent shall have received a certificate from an Authorized Officer Indebtedness consisting of the Borrower intercompany loans among American Ski and its Restricted Subsidiaries evidencing intercompany obligations with respect to the effect Revolving Credit Advances hereunder, and other intercompany loans among American Ski and its Restricted Subsidiaries provided that the aggregate outstanding Senior Debt (other than Working Capital Debt and Indebtedness incurred pursuant to clauses (f), (g), (h), (i), (j), (k), (l), (m), and (o) of this Section 2.5) (after giving effect to the incurrence and application of proceeds of such Permitted Refinancing (2) using an interest rate equal to the weighted average interest rate principal amount of all such Senior Debt outstanding after giving effect other intercompany loans shall not exceed $5,000,000 and no such loan shall be evidenced by a promissory note or other instrument unless such note has been pledged and delivered to the incurrence Agent as security for the Lender Obligations on terms and conditions acceptable to the Agent. (k) Indebtedness of American Ski and its Restricted Subsidiaries under Interest Rate Protection Agreements entered into to protect American Ski and its Restricted Subsidiaries against fluctuations in interest rates so long as management of American Ski and its Restricted Subsidiaries has determined that the entering into of such Interest Rate Protection Agreements are bona fide hedging activities. (l) Payment and performance bonds entered into in the ordinary course of business in support of the Permitted Refinancing Indebtedness activities of American Ski and the application of the proceeds therefrom);its Restricted Subsidiaries.

Restrictions on Indebtedness. The Borrower shall Company will not directly or indirectly create, incur, issue, assume, permit, suffer to exist guarantee or otherwise be or become liable with respect toremain liable, contingently or otherwise (collectivelyotherwise, “incur”), with respect to any Indebtedness; provided, however, that the Borrower may incur any of the following items of IndebtednessIndebtedness other than: (a) Indebtedness to Medtronic arising under this Note or otherwise; b) existing under debt and lease financing facilities of the Initial Senior Bond Indentures Company listed on SCHEDULE 5.2(b) attached hereto in an amount not to exceed exceeding the maximum amounts set forth on such Schedule and all renewals and refinancings thereof, or liabilities incurred in the ordinary course of business not incurred through (A) the borrowing of money, or (B) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services; c) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies not yet due or which are being contested in good faith by appropriate proceedings promptly initiated and diligently conducted, if such reserve or other appropriate provision, if any, as shall be required by generally accepted accounting principles shall have been made therefor; d) Indebtedness in respect of judgments or awards that have been in force for less than the applicable period for taking an appeal so long as execution is not levied thereunder or in respect of which the Company shall at the time in good faith be prosecuting an appeal or proceedings for review and in respect of which a stay of execution shall have been obtained pending such appeal or review; e) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business; or g) Indebtedness incurred in connection with the acquisition after the date hereof of any real or personal property in the ordinary course of business by the Company which is secured by a security interest in the acquired real or personal property, PROVIDED that the aggregate principal amount of Indebtedness outstanding under the Initial Senior Bond Indentures as of the date of the Fifth Omnibus Amendment; (b) Permitted Refinancing such Indebtedness of the Borrower in exchange for, or Company shall not exceed the net proceeds aggregate amount of which are used to renew, refund, refinance, replace, defease or discharge $2,500,000 at any Indebtedness (other than intercompany Indebtednessone time. h) that was permitted to be incurred under clause (a), (b) or (c) of this Section 2.5, provided that each of the following conditions shall have been satisfied: (1) the Senior Facility Agent shall have received a certificate from an Authorized Officer of the Borrower to the effect that the outstanding Senior Debt (other than Working Capital Debt and Indebtedness incurred pursuant to clauses (f), (g), (h), (i), (j), (k), (l), (m), and (o) in connection with the lease of this Section 2.5) (after giving effect to real property at market rates for the incurrence and application Company's facilities in the ordinary course of proceeds of such Permitted Refinancing (2) using an interest rate equal to the weighted average interest rate of all such Senior Debt outstanding after giving effect to the incurrence of the Permitted Refinancing Indebtedness and the application of the proceeds therefrom);business.

Restrictions on Indebtedness. The Borrower shall not directly or indirectly will not, nor will it permit any of its Subsidiaries to, create, incur, issue, assume, permit, suffer to exist guarantee or otherwise be or become liable with respect toremain liable, contingently or otherwise (collectivelyotherwise, “incur”), with respect to any Indebtedness; provided, however, that the Borrower may incur any of the following items of IndebtednessIndebtedness other than: (a) Indebtedness to the Bank arising under any of the Loan Documents; (b) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business; (c) Indebtedness in respect of Interest Rate Agreements; (d) Indebtedness incurred in connection with the acquisition after the date hereof of any real or personal property by the Borrower or such Subsidiary or under any Capitalized or Synthetic Leases, provided that the aggregate principal amount of such Indebtedness of the Borrower and its Subsidiaries shall not exceed the aggregate amount of $250,000 at any one time; (e) Non-Recourse Debt incurred after the Closing Date so long as prior to incurring such Indebtedness the Borrower has provided the Bank with evidence of compliance with the financial covenants set forth in §10 hereof both before and (on a pro forma basis, based on the most recent financial statements delivered to the Bank before the incurrence of such Indebtedness) after giving effect to incurring such Indebtedness; (f) Indebtedness existing on the date hereof and listed and described on Schedule 9.1 hereto and any refinancings, refundings, renewals or extensions thereof, provided, with respect to each such refinancing, refunding, renewal or extension, that the maximum aggregate principal amount of each such Indebtedness does not exceed the maximum principal amount of the refinanced, refunded, renewed or extended Indebtedness, is used for similar business purposes, and is not subject to restrictions on Distribution that are more restrictive than those to which the refinanced, refunded, renewed or extended Indebtedness was subject; (g) unsecured Indebtedness of the Borrower consisting of guaranties of Indebtedness incurred by its Subsidiaries permitted under §§9.1(d) and (f); (h) unsecured Indebtedness of the Initial Senior Bond Indentures Borrower to its Subsidiaries not to exceed $500,000 in the aggregate at any time; (i) unsecured Indebtedness of the Borrower to Culbro in the form of a one time loan from Culbro to the Borrower in an amount not to exceed the amount of Indebtedness outstanding under the Initial Senior Bond Indentures as of the date of the Fifth Omnibus Amendment$5,000,000; (bj) Permitted Refinancing Subordinated Debt; (k) unsecured Indebtedness of the Borrower in exchange forconsisting of guaranties of Indebtedness incurred by its Subsidiaries permitted under §9.1(e) but only on terms and conditions reasonably satisfactory to the Bank; and (i) unsecured Indebtedness of Imperial to the Borrower, or the net proceeds (ii) unsecured Indebtedness of which are used to renew, refund, refinance, replace, defease or discharge any Indebtedness Subsidiary Guarantors (other than intercompany IndebtednessImperial) that was permitted to be incurred under clause the Borrower not to exceed $1,000,000 to any individual Subsidiary Guarantor at any time and $5,000,000 to all such Subsidiary Guarantors in the aggregate at any time and (a), (biii) or (c) other unsecured Indebtedness of this Section 2.5, provided that each of the following conditions shall have been satisfied: (1) the Senior Facility Agent shall have received a certificate from an Authorized Officer Subsidiaries of the Borrower to the effect that the outstanding Senior Debt (other than Working Capital Debt Subsidiary Guarantors) to the Borrower not to exceed $1,000,000 to any individual Subsidiary of the Borrower at any time and $2,000,000 to all such Subsidiaries of the Borrower in the aggregate any time; provided that the amount of such Indebtedness incurred pursuant to outstanding at any time under clauses (f), (g), (h), (i), (j), (k), (l), (m), ii) and (oiii) of this Section 2.5) (after giving effect to hereof shall not exceed $5,000,000 in the incurrence and application of proceeds of such Permitted Refinancing (2) using an interest rate equal to the weighted average interest rate of all such Senior Debt outstanding after giving effect to the incurrence of the Permitted Refinancing Indebtedness and the application of the proceeds therefrom);aggregate at any time.

Restrictions on Indebtedness. The Borrower shall PFR will not, and will not directly or indirectly permit any of its Subsidiaries to, create, incur, issue, assume, permit, suffer to exist guarantee or otherwise be or become liable with respect toremain liable, contingently or otherwise (collectivelyotherwise, “incur”), with respect to any Indebtedness; provided, however, that the Borrower may incur any of the following items of IndebtednessIndebtedness other than: (a) Indebtedness existing to the Banks and the Agent arising under the Initial Senior Bond Indentures in an amount not to exceed the amount of Indebtedness outstanding under the Initial Senior Bond Indentures as any of the date of the Fifth Omnibus AmendmentLoan Documents; (b) Permitted Refinancing Unsecured current liabilities of the Borrower or such Subsidiary incurred in the ordinary course of business not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services; provided, that each account payable shall be paid or discharged in accordance with the Borrower's past customary practice within the appropriate time period after the same shall have become due and payable, unless the same shall currently be contested by the Borrower or such Subsidiary in good faith by appropriate proceedings or other appropriate action, and the Borrower or such Subsidiary, as the case may be, shall have set aside such reserves, if any, with respect thereto as are required by generally accepted accounting principles and deemed adequate by the Borrower and its independent public accountants; (c) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of ss.10.8; (d) Indebtedness in respect of judgments or awards that have been in force for less than the applicable period for taking an appeal so long as execution is not levied thereunder or in respect of which the Borrower or such Subsidiary shall at the time in good faith be prosecuting an appeal or proceedings for review and in respect of which a stay of execution shall have been obtained pending such appeal or review; (e) Other unsecured Indebtedness of the Borrower not to exceed $7,500,000 in aggregate principal amount for all such Indebtedness Outstanding at any time; (f) Indebtedness of the Borrower and its Subsidiaries in respect of rental obligations (net of subleases) under leases (other than Capitalized Leases) incurred in the ordinary course of business, provided that the aggregate amount of such obligations required to be paid in any fiscal year shall not exceed $10,000,000; (g) Indebtedness of the Borrower in exchange for, or the respect of Capitalized Leases (net proceeds of which are used to renew, refund, refinance, replace, defease or discharge any Indebtedness (other than intercompany Indebtedness) that was permitted to be incurred under clause (asubleases), (b) or (c) of this Section 2.5, provided that each the aggregate Outstanding amount of the following conditions shall have been satisfied: (1) the Senior Facility Agent shall have received a certificate from an Authorized Officer of the Borrower to the effect that the outstanding Senior Debt (other than Working Capital Debt and Indebtedness incurred pursuant to clauses (f), (g), (h), all future principal payments owing under (i)) existing Capitalized Leases referred to in the Borrower's audited balance sheet as of December 31, (j), (k), (l), (m)1996, and (oii) of additional Capitalized Leases entered into pursuant to this Section 2.5subsection (g) after the date hereof (after giving effect as reflected in the notes to the incurrence and application of proceeds of such Permitted RefinancingBorrower's audited financial 56 -49- statements in accordance with generally accepted accounting principles) shall not at any time exceed $15,000,000; (2h) using an interest rate equal Indebtedness existing on the Closing Date and listed and described on Schedule 11.1 hereto; and (i) from and after the merger of PFR and The Restaurant Company, contingent liabilities arising from the indemnity contained in that certain tax disaffiliation agreement between The Restaurant Company and Friendly Ice Cream Corporation not to exceed in the weighted average interest rate of all such Senior Debt outstanding after giving effect to the incurrence aggregate (i) $21,500,000 as of the Permitted Refinancing Indebtedness Closing Date and the application (ii) $12,500,000 as of the proceeds therefrom);September 16, 1997 and thereafter.

Restrictions on Indebtedness. The Borrower shall Subject to the further restrictions of §9.1, the Loan Parties will not, and will not directly or indirectly permit any of their respective Subsidiaries to, create, incur, issue, assume, permit, suffer to exist guarantee or otherwise be or become liable with respect toremain liable, contingently or otherwise, with respect to any Indebtedness other than: (i) the Obligations; (ii) Indebtedness of Borrower to any Subsidiary that is a Guarantor or Indebtedness of any Subsidiary to Borrower or another Subsidiary that is a Guarantor; (iii) to the extent constituting Indebtedness, liabilities in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8; (iv) contingent obligations arising with respect to customary indemnification obligations in favor of purchasers in connection with dispositions permitted under §8.8; (v) Indebtedness in respect of judgments or awards that would not constitute an Event of Default; (vi) obligations under any Hedge Agreement incurred in the ordinary course of business for bona fide hedging purposes; (vii) Indebtedness owing to insurance carriers or finance companies and incurred to finance insurance premiums of any Loan Party in the ordinary course of business in a principal amount not to exceed at any time the amount of such insurance premiums to be paid by such Loan Party; (viii) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently drawn against insufficient funds in the ordinary course of business, or pursuant to netting services or otherwise in connection with deposit accounts; (collectivelyix) endorsements for collection, “incur”deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business; (x) Indebtedness in connection with surety (or similar) bonds, letters of credit and performance bonds obtained in the ordinary course of business in connection with workers’ compensation obligations of the Loan Parties and in connection with other surety and performance bonds in the ordinary course of business; (xi) Permitted Existing Indebtedness, including any Permitted Refinancing Indebtedness; (xii) Non-Recourse Indebtedness (including the Loan Parties’ share of Non-Recourse Indebtedness incurred by any Joint Venture) in an aggregate principal amount not exceeding $250,000,000 at any time, provided that (a) such Non-Recourse Indebtedness is secured solely by either (1) property wholly owned by Borrower or another Loan Party that is not included in the Borrowing Base, or (2) by property wholly owned by a Joint Venture, (b) Borrower shall have provided Agent (if requested by Agent) with true, correct and complete copies of the substantially final operative loan documents with respect to such Indebtedness at least five (5) Business Days prior to the incurrence of such Indebtedness, (c) Borrower shall have provided to Agent a certificate that (i) no Default or Event of Default exists or would be caused by the incurrence of such Indebtedness, (ii) the leverage ratio of such Non-Recourse Indebtedness relative to the value of the Real Estate securing the same shall, at the time such Indebtedness is incurred, be less than seventy-five percent (75%) (or eighty-five percent (85%) in the case of such Indebtedness in respect of Multifamily Properties), and (iii) with respect to any Non-Recourse Indebtedness of a Joint Venture, a portion of which is allocable to the Loan Parties for purposes of this §8.1(xii), the leverage ratio of such Non-Recourse Indebtedness of such Joint Venture relative to the value of the Real Estate of such Joint Venture securing the same, shall at the time such Indebtedness is incurred, be less than seventy-five percent (75%) (or eighty-five percent (85%) in the case of such Indebtedness in respect of Multifamily Properties); and (d) only Permitted Recourse Undertakings shall be permitted in connection with such Non-Recourse Indebtedness; (xiii) Indebtedness (other than Non-Recourse Indebtedness or Bond Indebtedness) in an aggregate principal amount not exceeding $75,000,000 at any time (including the portion of all Joint Venture Indebtedness that is recourse to any Loan Party), provided that (a) such Indebtedness is secured solely by property wholly owned by either by Borrower or its Subsidiaries that is not included in the Borrowing Base, or by property wholly owned by a Joint Venture, and (b) Borrower shall have provided to Agent a certificate that (i) no Default or Event of Default exists or would be caused by the incurrence of such Indebtedness, (ii) the leverage ratio of such Indebtedness relative to the value of the property securing the same shall, at the time such Indebtedness is incurred, be less than seventy-five percent (75%) (or eighty-five percent (85%) in the case of such Indebtedness in respect of Multifamily Properties), and (iii) with respect to any Indebtedness of a Joint Venture, a portion of which is allocable to the Loan Parties for purposes of this §8.1(xiii), the ratio of such Indebtedness of such Joint Venture relative to the value of the Joint Venture’s property securing the same, shall, at the time such Indebtedness is incurred, be less than seventy-five percent (75%) (or eighty-five percent (85%) in the case of such Indebtedness in respect of Multifamily Properties); provided, however, that the Borrower portion of any secured surety bond Indebtedness in excess of $15,000,000 permitted pursuant to §8.1(xiv) shall be counted against the $75,000,000 limit provided in this paragraph; (xiv) surety, statutory or appeal bonds or similar obligations incurred in the ordinary course of business under which the Loan Parties’ collective potential exposure shall not at any time exceed $75,000,000, of which up to $25,000,000 may incur be secured by Liens pursuant to §8.2(iii); (xv) Indebtedness under Commodity Hedge Agreements incurred for bona fide hedging purposes up to a maximum aggregate exposure at any time of $25,000,000; provided that the following items aggregate exposure amount may exceed such maximum amount for a period not to exceed five (5) consecutive Business Days; and (xvi) Bond Indebtedness (including any guaranties in respect thereof by any Subsidiary of Indebtedness: Forestar Group) in an aggregate principal amount not exceeding $250,000,000 at any time, provided that (a) such Indebtedness existing under the Initial Senior Bond Indentures in an amount not to exceed the amount of Indebtedness outstanding under the Initial Senior Bond Indentures as of the date of the Fifth Omnibus Amendment; (b) Permitted Refinancing Indebtedness of the Borrower in exchange for, or the net proceeds of which are used to renew, refund, refinance, replace, defease or discharge any Indebtedness (other than intercompany Indebtedness) that was permitted to be incurred under clause (a)is unsecured, (b) Borrower shall have provided to Agent a certificate that no Default or Event of Default exists or would be caused by the incurrence of such Indebtedness, (c) of this Section 2.5if such Bond Indebtedness is not Convertible Bond Indebtedness, provided that each the net cash proceeds from the issuance thereof must be applied first to the repayment in full of the following conditions shall have been satisfied: Term Loan and thereafter may be used for general corporate purposes (1) the Senior Facility Agent shall have received a certificate from an Authorized Officer of the Borrower to the effect it being understood and agreed that the outstanding Senior Debt (other than Working Capital Debt and net cash proceeds from the issuance of Convertible Bond Indebtedness incurred pursuant shall not be required to clauses (f), (g), (h), (i), (j), (k), (l), (mbe applied to prepay the Loans), and (od) of this Section 2.5) (after giving effect to if such Bond Indebtedness is Convertible Bond Indebtedness and a Call Option Overlay is entered into in conjunction therewith, the incurrence and application of proceeds terms of such Permitted Refinancing (2) using an interest rate equal to the weighted average interest rate of all Call Option Overlay shall be those customary for such Senior Debt outstanding after giving effect to the incurrence of the Permitted Refinancing Indebtedness and the application of the proceeds therefrom);transactions.

Restrictions on Indebtedness. The Borrower shall not directly or indirectly will not, nor will ---------------------------- the Borrower permit any of its Subsidiaries to, create, incur, issue, assume, permit, suffer to exist guarantee or otherwise be or become liable with respect toremain liable, contingently or otherwise (collectivelyotherwise, “incur”), with respect to any Indebtedness; provided, however, that the Borrower may incur any of the following items of IndebtednessIndebtedness other than: (a) Indebtedness existing to the Banks and the Agent arising under the Initial Senior Bond Indentures in an amount not to exceed the amount of Indebtedness outstanding under the Initial Senior Bond Indentures as any of the date of the Fifth Omnibus AmendmentLoan Documents; (b) Permitted Refinancing Indebtedness to suppliers in respect of long term supply contracts consistent with industry practices; (c) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of (S)9.8; (d) Indebtedness in respect of judgments or awards that have been in force for less than the applicable period for taking an appeal so long as execution is not levied thereunder or in respect of which the Borrower or such Subsidiary shall at the time in good faith be prosecuting an appeal or proceedings for review and in respect of which a stay of execution shall have been obtained pending such appeal or review; (e) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business; (f) Indebtedness evidenced by the Old Notes or the Senior Notes (including without limitation any guarantees of such Senior Notes by Subsidiaries which are Guarantors); (g) obligations of the Borrower and its Subsidiaries under Capitalized Leases; provided that the aggregate principal amount of -------- all such Indebtedness of the Borrower in exchange forand its Subsidiaries permitted pursuant to this (S)10.1(g) shall not exceed the aggregate amount of $5,000,000 at any one time; (h) Indebtedness existing on the date hereof and listed and described on Schedule 10.1 hereto, or including the net proceeds of which are used to renew, refund, refinance, replace, defease or discharge any Indebtedness (other than intercompany Indebtedness) that was permitted to be incurred under clause (a), (b) or (c) of this Section 2.5, provided that each remaining unamortized -------- ---- portion of the following conditions shall have been satisfied:original issue discount of such Indebtedness; (1i) the Senior Facility Agent shall have received Indebtedness of a certificate from an Authorized Officer Subsidiary of the Borrower which is a Guarantor existing on the Closing Date to the effect Borrower or another Subsidiary of the Borrower which is a Guarantor; provided that the outstanding Senior Debt (other than Working Capital Debt -------- same are evidenced by promissory notes, leases or contracts in form and Indebtedness incurred pursuant to clauses (f), (g), (h), (i), (j), (k), (l), (m), and (o) of this Section 2.5) (after giving effect substance satisfactory to the incurrence and application of proceeds of such Permitted Refinancing (2) using an interest rate equal Agent which are pledged to the weighted average interest rate of all such Senior Debt outstanding after giving effect to Agent for the incurrence benefit of the Permitted Refinancing Indebtedness and the application of the proceeds therefrom)Banks or evidenced only by open account;

Restrictions on Indebtedness. The Borrower shall will not, and will not directly or indirectly permit any of its Subsidiaries to, create, incur, issue, assume, permit, suffer to exist guarantee or otherwise be or become liable with respect toremain liable, contingently or otherwise (collectivelyotherwise, “incur”), with respect to any Indebtedness; provided, however, that the Borrower may incur any of Indebtedness other than the following items (each of Indebtedness:which categories shall be interpreted as being separately permitted, notwithstanding any overlap among such categories): (a) Indebtedness existing to the Banks and the Agent arising under the Initial Senior Bond Indentures in an amount not to exceed the amount of Indebtedness outstanding under the Initial Senior Bond Indentures as any of the date of the Fifth Omnibus AmendmentLoan Documents; (b) Permitted Refinancing endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business; (c) Indebtedness (i) incurred in connection with the secured financing of any real or personal property by the Borrower or any of its Domestic Subsidiaries, (ii) under any Synthetic Lease or (iii) under any Capitalized Lease, provided that the aggregate principal amount of such Indebtedness (including under any such Synthetic Lease or Capitalized Lease) of the Borrower and its Domestic Subsidiaries shall not exceed the aggregate amount of $5,000,000 at any one time; (d) Indebtedness of the Borrower in exchange for, or and its Domestic Subsidiaries existing on the net proceeds date hereof and listed and described on Schedule 8.1(d) hereto; (e) Indebtedness of which are used to renew, refund, refinance, replace, defease or discharge any the Borrower's Foreign Subsidiaries existing on the date hereof and listed and described on Schedule 8.1(e) hereto; (f) Indebtedness (other than intercompany Indebtedness) that was permitted to be incurred under clause (a), (b) or (ci) of this Section 2.5, provided that each of the following conditions shall have been satisfied: (1) the Senior Facility Agent shall have received a certificate from an Authorized Officer Subsidiary of the Borrower to the effect Borrower or to another Subsidiary of the Borrower, (ii) of the Borrower to any Guarantor, or (iii) of the Borrower to World Properties in an aggregate principal amount not to exceed $30,000,000; provided that in each of cases (ii) and (iii) above, such Indebtedness shall be subordinated to the outstanding Senior Debt Obligations on terms and conditions satisfactory to the Agent and the Banks; (g) Indebtedness in respect of borrowings against the cash value of life insurance policies owned by the Borrower or any of its Subsidiaries in an aggregate principal amount not to exceed $6,000,000; (h) Indebtedness of Foreign Subsidiaries (other than Working Capital Debt as permitted by Section 8.1(f)) which, when aggregated with amounts outstanding under Section 8.1(e), shall not exceed fifty percent (50%) of Consolidated Foreign Tangible Assets at any time; (i) Indebtedness (in addition to and other than Indebtedness incurred otherwise permitted and classified as Investments pursuant to paragraphs (g) and (h) of Section 8.3 hereof) in respect of guaranties by the Borrower or any of its Domestic Subsidiaries of Indebtedness of Foreign Subsidiaries or Joint Ventures ("Guarantied JV/Foreign Indebtedness"); provided that the aggregate principal amount of all Guarantied JV/Foreign Indebtedness shall not exceed $5,000,000 at any time outstanding; (j) Indebtedness in respect of Derivative Contracts entered into solely for hedging (and not speculative) purposes in the ordinary course of the Borrower's (or the applicable Subsidiary's) business; and (k) unsecured Indebtedness of the Borrower and its Domestic Subsidiaries other than as permitted by clauses (f), (g), (h), (i), a) through (j), (k), (l), (m), and (o) of this Section 2.5) (after giving effect to above; provided that the incurrence and application of proceeds of such Permitted Refinancing (2) using an interest rate equal to the weighted average interest rate aggregate principal amount of all such Senior Debt outstanding after giving effect to the incurrence of the Permitted Refinancing Indebtedness and the application of the proceeds therefrom);shall not exceed $5,000,000 at any time outstanding.

Restrictions on Indebtedness. The Borrower shall not directly or indirectly createCreate, incur, issuesuffer or permit to exist, assumeor assume or guarantee, permiteither directly or indirectly, suffer to exist or otherwise be become or become remain liable with respect to, contingently or otherwise (collectively, “incur”), any Indebtedness; provided, however, that except the Borrower may incur any of the following items of Indebtednessfollowing: (a) Indebtedness existing outstanding at the date of this Agreement as set forth on SCHEDULE 5.28 but no amendments or refinancings thereof; PROVIDED that all Indebtedness set forth on SCHEDULE 5.28 owing to any seller in connection with the acquisition by the Company or any Subsidiary of any business (whether by asset purchase, stock purchase or otherwise) shall be Subordinated Debt, except as specifically indicated otherwise on SCHEDULE 5.28. (b) Indebtedness to the United States Department of Housing and Urban Development ("HUD") in connection with the refinancing of a portion of the Indebtedness under the Initial Senior Bond Indentures Credit Agreement in an aggregate amount not to exceed $35,000,000 (including, for purposes of this cap, any Indebtedness to HUD set forth on SCHEDULE 5.28), but no amendments or refinancings thereof. (c) Indebtedness owing by any wholly-owned Subsidiary to the Company or to another wholly-owned Subsidiary; PROVIDED, that such Indebtedness shall be evidenced by a note and shall be Subordinated Debt. (d) Borrowings incurred in the ordinary course of business and not exceeding $100,000 individually or in the aggregate outstanding at any one time; PROVIDED, HOWEVER, that such Indebtedness shall be Subordinated Debt. (e) Indebtedness in an amount not to exceed $100,000 in respect of purchase money security interests permitted under Section 10.2(c), including, for purposes of this cap, any Indebtedness in respect of purchase money security interests set forth on SCHEDULE 5.28. (f) Indebtedness to the Purchaser incurred in connection with a Drawdown Acquisition as set forth in paragraph (iii) of the definition of "DRAWDOWN ACQUISITION." (g) Indebtedness to the Purchaser. (h) Capitalized Lease Obligations of the Company in an amount not to exceed $100,000 including, for purposes of this cap, any Capitalized Lease Obligations set forth on SCHEDULE 5.28. (i) Indebtedness outstanding under the Initial Senior Bond Indentures as Credit Agreement (including letters of credit issued under the Credit Agreement) in an aggregate principal amount outstanding not in excess of the date of current maximum commitment under the Fifth Omnibus Amendment; (b) Permitted Refinancing Indebtedness of the Borrower in exchange forCredit Agreement and any additional advances or increases thereunder, or the net proceeds of which are used to renewso long as, refund, refinance, replace, defease or discharge any Indebtedness (other than intercompany Indebtedness) that was permitted to be incurred under clause (a), (b) or (c) of this Section 2.5, provided that each of the following conditions shall have been satisfied: (1) the Senior Facility Agent shall have received a certificate from an Authorized Officer of the Borrower to the effect that the outstanding Senior Debt (other than Working Capital Debt and Indebtedness incurred pursuant to clauses (f), (g), (h), (i), (j), (k), (l), (m), and (o) of this Section 2.5) (after giving effect to such advances or increases, the incurrence and application Company does not exceed the Total Leverage Ratio; PROVIDED, HOWEVER, that the Company agrees that it shall not permit any amendment, supplement, modification or waiver or refinancing of proceeds the Credit Agreement, except as provided in the Subordination Agreement. (j) Indebtedness in connection with advances made by a stockholder in order to cure any default of the financial covenants set forth in Article VIII; PROVIDED, HOWEVER, that such Indebtedness shall be Subordinated Debt. (k) Indebtedness to any seller of any business incurred in connection with the acquisition by the Company or any wholly-owned Subsidiary of such Permitted Refinancing business (2) using an interest rate equal whether by asset purchase, stock purchase or otherwise), but no amendments or refinancings thereof; PROVIDED, that such Indebtedness shall be Subordinated Debt; PROVIDED, HOWEVER, that no Indebtedness shall be permitted under this Section 10.1 unless at the time such Indebtedness is created, incurred, suffered or permitted to the weighted average interest rate of all such Senior Debt outstanding exist, or assumed or guaranteed, either directly or indirectly, and after giving effect to such Indebtedness, no Default or Event of Default shall have occurred and be continuing. Neither the incurrence of Company nor any Subsidiary shall make prepayments on any existing or future Indebtedness to any Person other than under the Permitted Refinancing Indebtedness and Credit Agreement or to the application of Purchaser or to the proceeds therefrom);extent specifically permitted by this Agreement.

Restrictions on Indebtedness. The Borrower shall not directly or indirectly create, None of the Credit Parties nor any of its Subsidiaries will incur, issue, assume, permit, suffer to exist guarantee or otherwise be or become liable with respect toremain liable, contingently or otherwise (collectivelyotherwise, “incur”), with respect to any Indebtedness; provided, however, that the Borrower may incur any of the following items of IndebtednessIndebtedness other than: (a) Indebtedness existing secured by purchase money security interests and Capitalized Leases permitted by Section 7.03(a)(viii) and any Permitted Refinancing thereof or amendments or modifications thereof that do not have the effect of increasing the principal amount thereof (except by an amount not in excess of accrued and unpaid interest and premiums owing thereon and fees and expenses incurred in connection with such refinancing), changing the amortization thereof (other than to extend the same), accelerating the maturity date thereof or decreasing the weighted average life thereof; (b) Indebtedness of the Credit Parties consisting of the Obligations under the Initial Loan Documents; (c) Indebtedness evidenced by the Senior Bond Indentures Notes (including any additional Senior Notes issued after the date of this Agreement in accordance with the terms of the Senior Notes Intercreditor Agreement) in an amount not to exceed $250,000,000 plus the amount of Indebtedness outstanding under any Senior Notes increased or issued for the Initial Senior Bond Indentures as purpose of paying interest in kind and in the case of and to the extent not duplicative of the date of the Fifth Omnibus Amendment; (b) Permitted Refinancing Indebtedness of the Borrower in exchange forforegoing, or the net proceeds of which are used to renew, refund, refinance, replace, defease or discharge any Indebtedness (other than intercompany Indebtedness) that was permitted to be incurred under clause (a), (b) or (c) of this Section 2.5, provided that each of the following conditions shall have been satisfied: (1) the Senior Facility Agent shall have received a certificate from an Authorized Officer of the Borrower to the effect that the outstanding Senior Debt (other than Working Capital Debt and Indebtedness incurred pursuant to clauses a Permitted Refinancing of the Senior Notes; (d) Indebtedness of the AA Canadian Subsidiaries under the Canadian Documents in an aggregate principal amount not to exceed Cdn. $11,000,000 and any Permitted Refinancing thereof; provided that such Indebtedness is not secured by Liens except for Liens permitted by Section 7.03(vi); (i) Indebtedness of any Credit Party outstanding as of the Closing Date and reflected on Schedule 7.02 hereto and any Permitted Refinancing thereof and (ii) the letters of credit identified on Schedule 1.01(a) and (b) but only during the period commencing on the Closing Date through the date that is 60 days after the Closing Date (or such longer period as the Administrative Agent may otherwise agree); (f) Indebtedness in respect of Swap Contracts entered into not for speculative purposes specifically permitted under Section 7.09; (g) unsecured Subordinated Debt on terms and conditions acceptable to the Required Lenders in their sole discretion, provided that the maturity date of such Subordinated Debt shall be at least one hundred and eighty (180) days following the Maturity Date (after taking into account any extension thereof); (h) Indebtedness consisting of intercompany loans and advances permitted by Section 7.01; (i) Guarantees by (i) any Credit Party of Indebtedness of any Credit Party permitted by this Section 7.02, (g)ii) any Subsidiary that is not a Credit Party of any Indebtedness of any Credit Party permitted by this Section 7.02, (hiii) any Subsidiary that is not a Credit Party of any Indebtedness of any other Subsidiary that is also not a Credit Party permitted by this Section 7.02 and (iv) a Credit Party of any Indebtedness of any other Subsidiary that is not a Credit Party permitted by Section 7.01(k); (j) Indebtedness consisting of contingent liabilities under surety bonds and similar instruments incurred in the ordinary course of business; (k) Indebtedness in respect of netting services, automatic clearing house arrangements and similar arrangement in the ordinary course of business in each case in connection with deposit and securities account; (l) to the extent constituting Indebtedness, obligations in respect of agreements for the deferred payment of premiums or to finance the deferred payment of premiums owing by any Credit Party under any insurance policies entered into in the ordinary course of business that are either (i) unsecured or (ii) secured by a Lien permitted under Section 7.03(xv), (j), (k), (l), ; (m) Guarantees by Holdings consisting of Liens permitted by Section 7.03(vi)(a)(y) and Section 7.03(vi)(b), and ; (n) Attributable Indebtedness incurred following the Closing Date pursuant to sale-leaseback transactions permitted by Section 7.06; (o) Acquired Indebtedness of this Section 2.5) any Credit Party in an amount not to exceed $5,000,000 at any time outstanding (after giving effect to the incurrence and application of proceeds of such any Permitted RefinancingRefinancing thereof); and (2p) using other unsecured Indebtedness in an interest rate equal aggregate principal amount not to the weighted average interest rate of all such Senior Debt outstanding after giving effect to the incurrence of the Permitted Refinancing Indebtedness and the application of the proceeds therefrom);exceed $3,000,000 at any time outstanding.

Restrictions on Indebtedness. The Borrower shall Borrowers will not directly or indirectly create, incur, issue, assume, permit, suffer to exist guarantee or otherwise be or become liable with respect toremain liable, contingently or otherwise (collectivelyotherwise, “incur”), with respect to any Indebtedness; provided, however, that the Borrower may incur any of the following items of IndebtednessIndebtedness other than: (a) Indebtedness existing to the Lenders arising under the Initial Senior Bond Indentures in an amount not to exceed the amount of Indebtedness outstanding under the Initial Senior Bond Indentures as any of the date of the Fifth Omnibus AmendmentLoan Documents; (b) Permitted Refinancing current liabilities of the Borrowers incurred in the ordinary course of business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services; (c) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8; (d) Indebtedness in respect of judgments only to the extent, for the period and for an amount not resulting in an Event of Default; (e) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business; (f) Indebtedness of the Parent Borrower in exchange forconnection with completion and similar guaranties in an aggregate amount at any one time not in excess of the greater of (i) $175,000,000 or (ii) fifteen percent (15%) of the Gross Asset Value; and (g) Other Indebtedness of the Parent Borrower, the REIT or the net proceeds any of which are used to renew, refund, refinance, replace, defease or discharge any Indebtedness their Subsidiaries (other than intercompany Indebtedness) that was permitted to be incurred under clause (aany Subsidiary Borrower), (b) or (c) of this Section 2.5, provided that each none of such Persons shall incur any of the following conditions Indebtedness described in this §8.1(g) unless it shall have been satisfied: (1) provided to the Senior Facility Agent shall have received a certificate from an Authorized Officer prior written notice of the Borrower to the effect proposed incurrence of such Indebtedness, a statement that the outstanding Senior Debt (other than Working Capital Debt borrowing will not cause a Default or Event of Default and Indebtedness incurred pursuant a Compliance Certificate demonstrating that the Borrowers will be in compliance with its covenants referred to clauses (f), (g), (h), (i), (j), (k), (l), (m), and (o) of this Section 2.5) (after giving effect to the incurrence and application of proceeds of such Permitted Refinancing (2) using an interest rate equal to the weighted average interest rate of all such Senior Debt outstanding therein after giving effect to the incurrence of such Indebtedness. Notwithstanding anything in this Agreement to the Permitted Refinancing Indebtedness and the application contrary, (i) none of the proceeds therefrom);Indebtedness described in §8.1(g) above shall have any of the Mortgaged Properties or any interest therein or any direct or indirect ownership interest in any Subsidiary Borrower as collateral, a borrowing base, asset pool or any similar form of credit support for such Indebtedness (provided that the foregoing shall not preclude Subsidiaries of the Borrowers (other than a Subsidiary Borrower) to incur Indebtedness subject to the terms of this §8.1 or recourse to the general credit of Parent Borrower) and (ii) none of the Subsidiary Borrowers, Parent Borrower nor REIT shall create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness (including, without limitation, pursuant to any conditional or limited guaranty or indemnity agreement creating liability with respect to usual and customary exclusions from the non-recourse limitations governing the Non-Recourse Indebtedness of any Person, or otherwise) other than Indebtedness described in §§8.1(a)-(g) above.

Restrictions on Indebtedness. The Borrower shall CAI will not, and will not directly or indirectly permit any of its Subsidiaries to, create, incur, issue, assume, permit, suffer to exist guarantee or otherwise be or become liable with respect toremain liable, contingently or otherwise (collectivelyotherwise, “incur”), with respect to any Indebtedness; provided, however, that the Borrower may incur any of the following items of IndebtednessIndebtedness other than: (a) Indebtedness existing to the Lenders and the Administrative Agent arising under the Initial Senior Bond Indentures in an amount not to exceed the amount of Indebtedness outstanding under the Initial Senior Bond Indentures as any of the date of the Fifth Omnibus AmendmentLoan Documents; (b) Permitted Refinancing Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §8.8; (c) Indebtedness in respect of judgments or awards that have been in force for less than the applicable period for taking an appeal so long as execution is not levied thereunder or in respect of which the Borrower or such Subsidiary shall at the time in exchange for, good faith be prosecuting an appeal or the net proceeds proceedings for review and in respect of which are used to renewa stay of execution shall have been obtained pending such appeal or review; (d) endorsements for collection, refunddeposit or negotiation and warranties of products or services, refinance, replace, defease or discharge any in each case incurred in the ordinary course of business; (e) Subordinated Debt; (f) Indebtedness (other than intercompany Indebtedness) that was in addition to similar Indebtedness permitted to be incurred under clause (a), (bg) hereof) incurred in connection with the acquisition or (c) lease after the date hereof of this Section 2.5any real or personal property by the Borrower or such Subsidiary or under any Capitalized Leases, provided that each (i) the aggregate principal amount of such Indebtedness of CAI and its Subsidiaries shall not exceed $50,000,000 outstanding at any one time and (ii) the principal amount of such Indebtedness secured by or relating to the lease of any particular property shall not exceed 100% of the following conditions shall have been satisfied:purchase price of such property; (1g) Indebtedness existing on the Senior Facility Agent Restatement Date and listed and described on Schedule 9.1 hereto; (h) any renewal or refinancing of any Indebtedness permitted under this §9.1; provided that any such refinancing or renewal does not independently violate any restriction, basket, limitation or other provision of this §9; (i) Indebtedness of CAI and its Subsidiaries consisting of short-term trade credit extended to CAI or such Subsidiary in the ordinary course of such Person’s business in connection with the acquisition of Containers and other equipment; provided that such Indebtedness shall have received not be in existence for more than 180 days after the occurrence of the transaction giving rise thereto; (j) Indebtedness in respect of Interest Rate Protection Agreements; (k) Indebtedness of a certificate from an Authorized Officer Subsidiary of the Borrower to the effect Borrower consisting of Investments permitted by §9.3(e); (l) Indebtedness consisting of obligations (contingent or otherwise) of CAI or any Subsidiary existing or arising under any Swap Contract, provided that (i) such obligations are (or were) entered into by such Person in the ordinary course of business for the purpose of directly mitigating risks associated with liabilities, commitments, investments, assets, or property held or reasonably anticipated by such Person, or changes in the value of securities issued by such Person, and not for purposes of speculation or taking a “market view;” and (ii) such Swap Contract does not contain any provision exonerating the non-defaulting party from its obligation to make payments on outstanding Senior Debt transactions to the defaulting party; (other than Working Capital Debt and m) Indebtedness incurred by a Securitization Entity in connection with a Permitted Securitization; (n) other Indebtedness consisting of: (i) Indebtedness that is unsecured; (ii) Indebtedness that is secured; provided that any such secured Indebtedness either: (w) is secured by assets that are not commingled with the Collateral; (x) if secured by assets that are commingled with the Collateral, is subject to the Intercreditor Agreement; (y) if CAI Rail Indebtedness, complies with the provisions of §9.14; or (z) consists of Indebtedness of Excluded Subsidiaries; or (iii) other secured Indebtedness not to exceed $60,000,000 in the aggregate; provided that both before and immediately after any such Indebtedness described in this clause (n) is incurred, no Default or Event of Default shall have occurred and be continuing and the proceeds of such Indebtedness are used solely for (A) repayments of Term Loans pursuant to clauses (f)§3.3, (g)B) the acquisition of assets and fees, costs and expenses incurred in connection with the acquisition of assets or (h), (i), (j), (k), (l), (m), and C) for the refinancing of any such Indebtedness; and (o) unsecured Indebtedness incurred by CAI consisting of this Section 2.5) (after giving effect to the incurrence and application one or more guaranties of proceeds of such Permitted Refinancing (2) using an interest rate equal to the weighted average interest rate of all such Senior Debt outstanding after giving effect to the incurrence of the Permitted Refinancing Indebtedness and the application of the proceeds therefrom);CAI Rail Indebtedness.

Restrictions on Indebtedness. The Borrower shall Borrowers will not, and will not directly or indirectly permit any of their respective Subsidiaries to, create, incur, issue, assume, permit, suffer to exist guarantee or otherwise be or become liable with respect toremain liable, contingently or otherwise (collectivelyotherwise, “incur”), with respect to any Indebtedness; provided, however, that the Borrower may incur any of the following items of IndebtednessIndebtedness other than: (a) Indebtedness existing to the Banks arising under the Initial Senior Bond Indentures in an amount not to exceed the amount of Indebtedness outstanding under the Initial Senior Bond Indentures as any of the date of the Fifth Omnibus AmendmentLoan Documents; (b) Permitted Refinancing current liabilities of the Borrowers or their respective Subsidiaries incurred in the ordinary course of business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services; (c) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of Section 7.8; (d) Indebtedness in respect of judgments or awards that have been in force for less than the applicable period for taking an appeal so long as execution is not levied thereunder or in respect of which the applicable Borrower shall at the time in good faith be prosecuting an appeal or proceedings for review and in respect of which a stay of execution shall have been obtained pending such appeal or review; (e) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business; (f) Indebtedness in respect of reverse repurchase agreements having a term of not more than 180 days with respect to Investments described in Section 8.3(d) or (e); (g) subject to the provisions of Section 8.1(h)(i) and Section 9, secured Indebtedness of Xxxxxx and its Subsidiaries in an aggregate outstanding principal amount not exceeding forty percent (40%) of Xxxxxx'x Consolidated Total Assets; and (h) subject to the provisions of Section 9, secured or unsecured recourse Indebtedness of the Borrower in exchange forBorrowers, or provided that (i) the net proceeds aggregate outstanding principal amount of which are used to renew, refund, refinance, replace, defease or discharge any such Indebtedness (other than intercompany Indebtednessexcluding the Obligations) and the portion of the Indebtedness described in Section 8.1(g) that was is recourse to Xxxxxx and its Subsidiaries shall not exceed five percent (5%) of Xxxxxx'x Consolidated Total Assets (provided, however, that with respect to senior unsecured recourse Indebtedness of the Borrowers only, the aggregate outstanding amount of such Indebtedness (excluding the Obligations, but including any of such Indebtedness permitted to be incurred under clause within the five percent (a5%) threshold described above) shall not exceed fifty percent (50%) of Xxxxxx'x Consolidated Total Assets), (bii) or (c) at the time such Indebtedness is issued the scheduled maturity date of this Section 2.5, provided that each of such Indebtedness is not sooner than 180 days after the following conditions shall have been satisfied: (1) the Senior Facility Agent shall have received a certificate from an Authorized Officer of the Borrower to the effect that the outstanding Senior Debt (other than Working Capital Debt and Indebtedness incurred pursuant to clauses (f), (g), (h), (i), (j), (k), (l), (m), and (o) of this Section 2.5) Maturity Date (after giving effect to any extension of the incurrence and application of proceeds Maturity Date which may have been requested by the Borrowers prior to the issuance of such Permitted Refinancing Indebtedness or approved by the Banks, whether or not the same has become effective), and (2iii) using an interest rate equal any covenants or restrictions imposed upon the Borrowers or their respective Subsidiaries in connection with such Indebtedness shall not individually or in the aggregate be more restrictive against the Borrowers and their respective Subsidiaries than the covenants and restrictions imposed pursuant to this Agreement or the other Loan Documents, and provided further that neither Xxxxxx nor any of its Subsidiaries shall incur any of the Indebtedness described in this Section 8.1(h) unless it shall have provided to the weighted average interest rate Banks (A) prior written notice of all the proposed issuance of such Senior Debt outstanding Indebtedness, a statement that no Default or Event of Default exists and a certificate that the Borrowers will be in compliance with its covenants referred to therein after giving effect to such incurrence, (B) evidence reasonably satisfactory to the incurrence Agent that the Rating Agencies have been advised of the Permitted Refinancing issuance of such Indebtedness within five (5) days of such issuance, and (C) upon the request of Agent, evidence that the annual rating maintenance fee has been paid to the Rating Agencies; (i) subject to the provisions of Section 9, Indebtedness in an aggregate outstanding principal amount not exceeding $150,000,000.00 at any time of Borrowers pursuant to that certain Revolving Credit Agreement dated December 15, 1997, among Borrowers, BKB, the other banks which are a party thereto and which may become a party thereto and BKB, as Agent; and (j) unsecured Indebtedness between Xxxxxx and WDOP provided that the terms of such Indebtedness are satisfactory to the Majority Banks and the application repayment of such Indebtedness shall be subordinate at all times to repayment of the proceeds therefrom);Obligations pursuant to a subordination and standstill agreement in form and substance satisfactory to the Majority Banks.

Restrictions on Indebtedness. The Borrower shall not directly or indirectly create, None of the Credit Parties nor any of its Subsidiaries will incur, issue, assume, permit, suffer to exist guarantee or otherwise be or become liable with respect toremain liable, contingently or otherwise (collectivelyotherwise, “incur”), with respect to any Indebtedness; provided, however, that the Borrower may incur any of the following items of IndebtednessIndebtedness other than: (a) Indebtedness existing secured by purchase money security interests and Capitalized Leases permitted by Section 7.03(a)(viii) and any refinancing thereof or amendments or modifications thereof that do not have the effect of increasing the principal amount thereof (except by an amount not in excess of accrued and unpaid interest and premiums owing thereon and fees and expenses incurred in connection with such refinancing), changing the amortization thereof (other than to extend the same), accelerating the maturity date thereof or decreasing the weighted average life thereof; (b) Indebtedness of the Credit Parties consisting of the Obligations under the Initial Senior Bond Indentures Loan Documents; (c) Second Lien Debt in an aggregate principal amount not to exceed the aggregate principal amount outstanding on the Closing Date (plus interest paid in kind or capitalized, Warrant PIK Fees following the Closing Date in accordance with the terms of the Second Lien Documents and capitalized fees in an aggregate amount not to exceed the sum of (i) $150,000 on the Amendment No. 2 Effective Date in accordance with the terms of that certain [eighth amendment to the Second Lien] Eighth Amendment to Credit Agreement dated the Amendment No. 2 Effective Date among the Credit Parties party thereto, the Second Lien Lenders and the Second Lien Agent and (ii) $150,000 on the Amendment No. 5 Effective Date in accordance with the terms of that certain Eleventh Amendment to Credit Agreement dated the Amendment No. 5 Effective Date among the Credit Parties party thereto, the Second Lien Lenders and the Second Lien Agent) and in the case of and to the extent not duplicative of the foregoing, Second Lien Debt incurred pursuant to a Permitted Refinancing, such additional amounts as may be permitted pursuant to the definition of Permitted Refinancing; (d) Indebtedness outstanding of the AA Canadian Subsidiaries under the Initial Senior Bond Indentures Canadian Documents in an aggregate principal amount not to exceed Cdn. $11,000,000; provided that such Indebtedness is not secured by Liens except for Liens permitted by Section 7.03(vi); (e) Indebtedness of any Credit Party outstanding as of the Closing Date and reflected on Schedule 7.02 hereto and any refinancing thereof or amendments or modifications thereof that do not have the effect of increasing the principal amount thereof, changing the amortization thereof (other than to extend the same), decreasing the weighted average life thereof, accelerating the maturity date of thereof or increasing the Fifth Omnibus Amendmentcash pay interest thereof; (bf) Permitted Refinancing Indebtedness in respect of Swap Contracts entered into not for speculative purposes specifically permitted under Section 7.09; (g) unsecured Subordinated Debt on terms and conditions acceptable to the Borrower Required Lenders in exchange for, or the net proceeds of which are used to renew, refund, refinance, replace, defease or discharge any Indebtedness (other than intercompany Indebtedness) that was permitted to be incurred under clause (a), (b) or (c) of this Section 2.5their sole discretion, provided that each the maturity date of such Subordinated Debt shall be at least one hundred and eighty (180) days following the following conditions shall have been satisfied:Maturity Date (after taking in account any extension thereof); (1h) Indebtedness consisting of intercompany loans and advances permitted by Section 7.01; (i) Guarantees by (i) any Credit Party of Indebtedness of any Domestic Credit Party permitted by this Section 7.02, (ii) any Subsidiary that is not a Credit Party of any Indebtedness of any Credit Party permitted by this Section 7.02 and (iii) any Subsidiary that is not a Credit Party of any Indebtedness of any other Subsidiary that is also not a Credit Party permitted by this Section 7.02; (j) Indebtedness consisting of contingent liabilities under surety bonds and similar instruments incurred in the Senior Facility Agent shall have received a certificate from an Authorized Officer ordinary course of business; (k) Indebtedness in respect of netting services, automatic clearing house arrangements and similar arrangement in the Borrower ordinary course of business in each case in connection with deposit and securities account; (l) to the effect extent constituting Indebtedness, obligations in respect of agreements for the deferred payment of premiums or to finance the deferred payment of premiums owing by any Domestic Credit Party under any insurance policies entered into in the ordinary course of business that the outstanding Senior Debt are either (other than Working Capital Debt i) unsecured or (ii) secured by a Lien permitted under Section 7.03(xv); (m) Guarantees by Holdings consisting of Liens permitted by Section 7.03(vi)(a)(y) and Section 7.03(vi)(b); (n) Attributable Indebtedness incurred following the Closing Date pursuant to clauses (f), (g), (h), (i), (j), (k), (l), (m), and sale-leaseback transactions permitted by Section 7.06. (o) of this Section 2.5) (after giving effect other unsecured Indebtedness in an aggregate principal amount not to the incurrence and application of proceeds of such Permitted Refinancing (2) using an interest rate equal to the weighted average interest rate of all such Senior Debt outstanding after giving effect to the incurrence of the Permitted Refinancing Indebtedness and the application of the proceeds therefrom);exceed $[250,000] 3,000,000 at any time outstanding.

Restrictions on Indebtedness. The Borrower shall will not, and will not directly or indirectly permit any of its Subsidiaries to, create, incur, issue, assume, permit, suffer to exist guarantee or otherwise be or become liable with respect toremain liable, contingently or otherwise (collectivelyotherwise, “incur”), with respect to any Indebtedness; provided, however, that the Borrower may incur any of the following items of IndebtednessIndebtedness other than: (a) Indebtedness existing to the Lenders arising under the Initial Senior Bond Indentures in an amount not to exceed the amount of Indebtedness outstanding under the Initial Senior Bond Indentures as any of the date of the Fifth Omnibus AmendmentLoan Documents; (b) Permitted Refinancing Indebtedness current liabilities of the Borrower or its Subsidiaries incurred in exchange forthe ordinary course of business but not incurred through (i) the borrowing of money, or (ii) the net proceeds obtaining of which credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services; (c) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8; (d) Indebtedness in respect of judgments only to the extent, for the period and for an amount not resulting in an Event of Default; (e) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business; and (f) subject to the provisions of §8.1, Indebtedness of Borrower in respect of Derivatives Contracts that are used entered into in the ordinary course of business and not for speculative purposes; (g) subject to renewthe provisions of §8.1, refund, refinance, replace, defease or discharge any Non-Recourse Indebtedness of Subsidiaries of Borrower (other than intercompany Indebtednessany Guarantor) that was permitted is secured by Real Estate and related assets; and (h) subject to the provisions of §8.1, Secured Debt or Unsecured Debt of Borrower that is Recourse Indebtedness and which Unsecured Debt may be incurred under clause (a), (b) or (c) of this Section 2.5guaranteed by Guarantors, provided that each of the following conditions shall have been satisfied: (1) the Senior Facility Agent shall have received a certificate from an Authorized Officer of the Borrower to the effect that the outstanding Senior no Unsecured Debt (other than Working Capital Debt the Permitted Unsecured Debt) shall be permitted without the prior written consent of the Required Lenders; and Indebtedness incurred pursuant to clauses (f), (g), (h), (i), (j), (k), (l), (m), and (o) of this Section 2.5) (after giving effect to provided further that the incurrence and application of proceeds of such Permitted Refinancing (2) using an interest rate equal to the weighted average interest rate aggregate amount of all such Senior Debt outstanding after giving effect to the incurrence Recourse Indebtedness (exclusive of the Permitted Refinancing Indebtedness and the application of the proceeds therefrom);Obligations) shall not exceed ten percent (10%) of

Restrictions on Indebtedness. The Borrower shall Parent and each of the Borrowers will not, and the Parent will not directly or indirectly permit any of its other Subsidiaries to, create, incur, issue, assume, permit, suffer to exist guarantee or otherwise be or become liable with respect toremain liable, contingently or otherwise (collectivelyotherwise, “incur”), with respect to any Indebtedness; provided, however, that the Borrower may incur any of the following items of IndebtednessIndebtedness other than: (a) Indebtedness existing to the Banks, the Issuing Bank and the Administrative Agent arising under the Initial Senior Bond Indentures in an amount not to exceed the amount of Indebtedness outstanding under the Initial Senior Bond Indentures as any of the date of the Fifth Omnibus AmendmentLoan Documents; (b) Permitted Refinancing Indebtedness of the Borrower Borrowers or the Parent or their Subsidiaries in exchange forrespect of current liabilities incurred in the ordinary course of business not incurred through (i) the borrowing of money, or (ii) the net proceeds obtaining of credit except for trade credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services, PROVIDED no such obligations in excess of $250,000 in the aggregate outstanding at any time shall be outstanding past the date which is the later of (i) 120 days past the invoice date or (ii) 60 days past the due date unless such obligation is being contested in good faith and adequate reserves have been established in accordance with generally accepted account principles; (c) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of SECTION 8.8, PROVIDED that no notice of lien has been filed or recorded under the Code or other applicable requirement of law; (d) Indebtedness in respect of judgments or awards that have been in force for less than the applicable period for taking an appeal so long as execution is not levied thereunder or in respect of which are used such Person shall at the time in good faith be prosecuting an appeal or proceedings for review and in respect of which a stay of execution shall have been obtained pending such appeal or review and such Indebtedness at any time outstanding is not in excess of $3,000,000; (e) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business; (f) Indebtedness existing on the Closing Date of this Agreement and listed and described on SCHEDULE 9.1 hereto (acceptable to renewthe Administrative Agent and the Banks) and Indebtedness issued to refinance or replace such Indebtedness, refundprovided that (i) the obligor on the Indebtedness so refinanced or replaced is the obligor on such refinancing or replacement Indebtedness, refinance, replace, defease (ii) the principal amount of Indebtedness issued to refinance or discharge any replace such Indebtedness is not increased beyond the amount outstanding thereunder (other than intercompany Indebtedness) that was permitted to be incurred under clause (aand in the case of revolving credit facilities the maximum amount available for borrowing thereunder is not increased above the amount in place on the Closing Date hereof), (biii) the aggregate amount of such refinancing or (c) replacement Indebtedness plus the amount of this Section 2.5, provided that each Indebtedness listed on SCHEDULE 9.1 which is still outstanding does not exceed the aggregate principal amount of the following Indebtedness set forth on SCHEDULE 9.1 hereto (such principal amount to include commitments under revolving credit facilities), (iv) such refinancing or replacement Indebtedness has a final maturity date no earlier than October 31, 2002, (v) such Indebtedness is on terms and conditions shall have been satisfied: (1including, without limitation, terms relating to interest rate, covenants, defaults, mandatory prepayments and the ability of such Subsidiary to make dividends or loans to the Parent or the Borrowers) not materially more onerous to the Senior Facility Agent shall have received a certificate from an Authorized Officer Parent, the Borrower or such Subsidiary than the Indebtedness set forth on SCHEDULE 9.1 being refinanced, (vi) if secured, such Indebtedness is not secured by liens on any assets of the Borrower or such Subsidiary which were not previously subject to liens securing the effect that the outstanding Senior Debt (other than Working Capital Debt and Indebtedness incurred pursuant to clauses (f), (g), (h), (i), (j), (k), (l), (m), set forth on SCHEDULE 9.1 being refinanced; and (ovii) of this Section 2.5) (after giving effect to the incurrence and application of proceeds of such Permitted Refinancing (2) using an interest rate equal to the weighted average interest rate of all such Senior Debt outstanding after giving effect to the incurrence of the Permitted Refinancing such refinancing or replacement Indebtedness no Default or Event of Default shall have occurred and be continuing and the application Borrowers shall be in compliance with the borrowing limitations set forth in SECTION 2.1; (i) Indebtedness incurred after the date hereof in connection with the acquisition or construction (and within 90 days of such acquisition or construction) of any real or personal property by the Parent, the Borrowers or any other Subsidiary of the proceeds therefromParent and Indebtedness assumed in connection with any acquisition (whether of assets or stock) of a business by any of such Persons so long as such indebtedness existed at the time of any such acquisition and was not incurred in anticipation of or in connection with any such acquisition, including Indebtedness issued to refinance or replace such Indebtedness so long as such refinancing or replacement Indebtedness otherwise complies with the criteria set forth in SECTION 9.1(f)(I), (II), (IV), (V), (VI) and (VII) (without reference to SCHEDULE 9.1 hereto) and (ii) Capitalized Leases; PROVIDED, (A) that the aggregate principal amount of all such Indebtedness under this clause (g) shall not, at any time, exceed $10,000,000, (B) the Capital Expenditure or other acquisition associated with such Indebtedness is permitted pursuant to SECTION 10.5 or SECTION 9.5 hereof, respectively, and (C) after giving effect to the incurrence of any such Indebtedness under this clause (g), no Default or Event of Default shall have occurred and be continuing and the Borrowers shall be in compliance with the borrowing limitations set forth in SECTION 2.1. (h) Indebtedness of a wholly-owned Subsidiary of the Parent (other than Borrowers) or a Borrower owing to the Parent or such Borrower, provided that the Investment corresponding to such Indebtedness is permitted pursuant to SECTION 9.3(e); (i) contingent obligations arising in connection with (i) non- delinquent surety, performance or other similar bonds obtained in the ordinary course of business, consistent with past practices, and (ii) standby letters of credit issued in lieu of such bonds; (j) Indebtedness in respect of the Senior Notes and guaranties thereof in an aggregate principal amount not to exceed $280,000,000; (k) additional unsecured subordinated Indebtedness in an aggregate principal amount and on terms and conditions (including, without limitation, with respect to tenor, interest rate, voluntary and mandatory payments and terms of the subordination provisions relating thereto) acceptable to the Agents and the Majority Banks, in their sole discretion; (l) additional unsecured Indebtedness in an aggregate principal amount not to exceed $3,000,000; and (m) Derivative Contracts of the Parent, the Borrowers and the Parent's Subsidiaries (other than Subsidiaries of the Borrowers) that qualify under generally accepted accounting principles as a hedge of fixed or floating rate Indebtedness or foreign currency needs (and not as a speculative investment) and which are entered into in the ordinary course of their business.

Restrictions on Indebtedness. The Borrower shall not directly or indirectly createCreate, incur, issue, assume, permit, suffer to exist guarantee or otherwise be or become liable with respect toremain liable, contingently or otherwise (collectivelyotherwise, “incur”), with respect to any Indebtedness; provided, however, that the Borrower may incur any of the following items of IndebtednessIndebtedness other than: (a) Indebtedness existing to the Agent and the Lenders (and their respective Affiliates) arising under the Initial Senior Bond Indentures in an amount not to exceed the amount of Indebtedness outstanding under the Initial Senior Bond Indentures as any of the date of the Fifth Omnibus AmendmentLoan Documents; (b) Permitted Refinancing current liabilities of the Borrower incurred in the ordinary course of business other than through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services; (c) Indebtedness (other than relating to the Collateral Properties) in an aggregate amount not in excess of $250,000 in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §8.9; (d) Indebtedness (other than relating to the Collateral Properties) in an aggregate amount not in excess of $1,000,000 in respect of judgments or awards that have been in force for less than the applicable period for taking an appeal so long as execution is not levied thereunder or in respect of which, at the time, a good faith appeal or proceeding for review is being prosecuted, and in respect of which a stay of execution shall have been obtained pending such appeal or review; (e) endorsements for collection, deposit or negotiation incurred in the ordinary course of business; (f) Indebtedness of the Borrower existing on the Closing Date and listed and described on Schedule 9.1 hereto or in exchange forthe financial statements delivered pursuant to §7.4, including any refinancing of any debt listed on Schedule 9.1(f) hereto, provided that (i) such refinancing is Without Recourse to the Borrower or the net Trust and is Without Recourse to any of the respective assets of any of the Borrower or the Trust other than to the specific Real Estate Asset being refinanced, and (ii) at the time of any such refinancing and after giving effect thereto, there exists no Default or Event of Default hereunder; (g) Indebtedness of the Borrower incurred after the Closing Date, provided that: (i) such Indebtedness is Without Recourse to the Borrower or the Trust and is Without Recourse to any of the respective assets of any of the Borrower or the Trust other than to the specific Real Estate Asset or Assets acquired, refinanced or rehabilitated with the proceeds of which are used such Indebtedness, and (ii) at the time any such Indebtedness is incurred and after giving effect thereto, there exists no Default or Event of Default hereunder; and (h) contingent liabilities of the Borrower disclosed in the financial statements referred to renewin §7.4 or on Schedule 9.1(h) hereto, refund, refinance, replace, defease or discharge and such other contingent liabilities of the Borrower having a combined aggregate potential liability of not more than $1,000,000 at any time; (i) Indebtedness of the Borrower for the purchase price of capital assets (other than intercompany IndebtednessReal Estate Assets but including Indebtedness in respect of Capitalized Leases) that was permitted to be incurred under clause (a), (b) or (c) in the ordinary course of this Section 2.5business, provided that each the aggregate principal amount of the following conditions Indebtedness permitted by this clause (i) shall have been satisfied:not exceed $500,000 at any time outstanding; and (1j) the Senior Facility Agent shall have received a certificate from an Authorized Officer Recourse Indebtedness of the Borrower to incurred after the effect that the outstanding Senior Debt Closing Date (other than Working Capital Debt and Indebtedness incurred pursuant relating to clauses (f)the Collateral Properties) in connection with the purchase of or the construction of or renovation of improvements on any Real Estate Asset, (g), (h), provided that (i), ) the aggregate principal amount of Indebtedness permitted by this clause (j), (k), (l), (m)) shall not exceed $10,000,000 at any time outstanding, and (oii) of this Section 2.5) (at the time any such Indebtedness is incurred and after giving effect thereto, there exists no Default or Event of Default hereunder. It is understood and agreed that the provisions of this §9.1 shall not apply to Indebtedness of any Partially-Owned Entity which is Without Recourse to the incurrence Borrower or the Trust, or any of their respective assets. The terms and application provisions of proceeds of such Permitted Refinancing (2) using an interest rate equal to this §9.1 are in addition to, and not in limitation of, the weighted average interest rate of all such Senior Debt outstanding after giving effect to the incurrence of the Permitted Refinancing Indebtedness and the application of the proceeds therefrom);covenants set forth in §10.

Restrictions on Indebtedness. The Borrower shall not directly or indirectly createCreate, incur, issuesuffer or permit to exist, assumeor assume or guarantee, permiteither directly or indirectly, suffer to exist or otherwise be become or become remain liable with respect to, contingently or otherwise (collectively, “incur”), any Indebtedness; provided, however, that except the Borrower may incur any of the following items of Indebtednessfollowing: (a) Indebtedness existing to the Lenders and the Agent under this Agreement, the Initial Senior Bond Indentures in an amount not to exceed Notes, and the amount of Indebtedness outstanding under the Initial Senior Bond Indentures as of the date of the Fifth Omnibus Amendmentother Lender Agreements; (b) the Intercompany Debt and such other Indebtedness by the Borrower to American Ski and its Subsidiaries provided that it is governed by the Subordination Agreement; (c) the Purchase Money Indebtedness; (d) as to the Borrower Subsidiaries, Permitted Refinancing Construction Loans, and Indebtedness of a Subsidiary of Borrower associated with the exercise of Borrower's rights under the Purchase Options (collectively, "Permitted Financial Facilities"), Indebtedness shall not constitute a Permitted Financial Facility or a Permitted Construction Loan unless: (i) the terms and conditions and documents evidencing and securing the Indebtedness, and any proposed modifications thereto, have been approved in advance by the Agent and (ii) no such document or instrument either prohibits or causes the acceleration of the respective Indebtedness upon the pledge of the equity interests of the Borrower Subsidiary to the Agent or upon the foreclosure of such pledge by the Agent. Agent hereby approves those documents and instruments delivered to the Agent on or before the Closing Date (but not otherwise) executed in connection with the Permitted Construction Loans which have been closed as of the Closing Date (which is solely the Permitted Construction Loan in favor of Textron), and such facility shall constitute a Permitted Financial Facility regardless of the satisfaction of the conditions of the preceding sentence. Subject to the preceding sentence, any Indebtedness of the Borrower or a Borrower Subsidiary that initially qualifies as a Permitted Financial Facility shall automatically be disqualified as a Permitted Financial Facility upon the failure of the Borrower or the Borrower Subsidiary to meet the requirements set forth above; (e) the existing Indebtedness set forth in exchange forSchedule 6.16, or otherwise approved by the net proceeds of which are used Agent from time to renew, refund, refinance, replace, defease or discharge any Indebtedness time subject to the conditions established in subsection (other than intercompany Indebtedness) that was permitted to be incurred under clause (ad), (b) or (c) of this Section 2.5, provided that each of the following conditions shall have been satisfied:; (1f) guaranties by a Borrower Subsidiary for the Indebtedness permitted hereunder of another Borrower Subsidiary provided such guaranties are approved in advance by the Agent; (g) Indebtedness which refinances any previously permitted Indebtedness hereunder provided the terms and conditions of such Indebtedness are no less stringent as a whole with respect to the Borrower or applicable Borrower Subsidiary that the previous permitted Indebtedness and the refinance Indebtedness otherwise meets the requirements established herein for permitted Indebtedness; (h) the Senior Facility Agent shall have received Note Guaranty provided that it remains subordinate to the Lender Obligations; (i) such other Subordinated Indebtedness as is approved by the Agent; (j) Indebtedness under the Purchase Options incurred in connection with a certificate from an Authorized Officer of Permitted Construction Project as permitted under the Budget; (k) Third Party Equity Documents in form and substance approved by the Agent; and (l) That certain Note Purchase Agreement between the Borrower and Textron provided that any third party loan made thereunder is immediately transferred to the effect that the outstanding Senior Debt (other than Working Capital Debt and Indebtedness incurred pursuant to clauses (f), (g), (h), (i), (j), (k), (l), (m), and (o) of this Section 2.5) (after giving effect to the incurrence and application of proceeds of such Permitted Refinancing (2) using an interest rate equal to the weighted average interest rate of all such Senior Debt outstanding after giving effect to the incurrence of the Permitted Refinancing Indebtedness and the application of the proceeds therefrom);Textron.

Restrictions on Indebtedness. The Borrower shall will not, and will not directly or indirectly permit any of its Subsidiaries to, create, incur, issue, assume, permit, suffer to exist guarantee or otherwise be or become liable with respect toremain liable, contingently or otherwise (collectivelyotherwise, “incur”), with respect to any Indebtedness; provided, however, that the Borrower may incur any of the following items of IndebtednessIndebtedness other than: (a) Indebtedness existing arising under the Initial Senior Bond Indentures in an amount not to exceed the amount of Indebtedness outstanding under the Initial Senior Bond Indentures as any of the date of the Fifth Omnibus AmendmentLoan Documents; (b) Permitted Refinancing Indebtedness of the Borrower to any Subsidiary and any Subsidiary to the Borrower or any other Subsidiary to the extent the Indebtedness referred to in exchange for, this Section 9.1(b) evidences a loan or the net proceeds of which are used to renew, refund, refinance, replace, defease or discharge any Indebtedness (other than intercompany Indebtedness) that was advance permitted to be incurred under clause (a), (b) or Section 9.3; (c) Indebtedness consisting of this Section 2.5reimbursement obligations under surety, provided that each indemnity, performance, release and appeal bonds and guarantees thereof and letters of credit required in the following conditions shall have been satisfied: (1) ordinary course of business or in connection with the Senior Facility Agent shall have received a certificate from an Authorized Officer enforcement of rights or claims of the Borrower or its Subsidiaries, in each case to the effect that extent a Letter of Credit supports in whole or in part the outstanding Senior Debt obligations of the Borrower and its Subsidiaries with respect to such bonds, guarantees and letters of credit; (other than Working Capital Debt d) Subordinated Debt; (e) Indebtedness in respect of Capitalized Leases, Synthetic Leases and purchase money obligations for fixed or capital assets, and if subject to a Lien permitted by Section 9.2.1(iv), within the limitations set forth in such Section 9.2.1(iv); provided, however, the aggregate amount of such Indebtedness incurred pursuant to clauses of the Borrower and its Subsidiaries shall not exceed the aggregate amount of $15,000,000 at any one time; (f), ) Indebtedness permitted by Section 9.10 in respect of Hedging Agreements; (g)) Indebtedness existing on the date hereof and listed and described on Schedule 9.1 hereto including any extension or renewals or refinancing thereof, provided the principal amount thereof is not increased; (h), ) Indebtedness consisting of guarantees by the Borrower and its Subsidiaries incurred in the ordinary course of business for an aggregate amount not to exceed $15,000,000 at any one time; (i), ) Indebtedness consisting of the Subsidiary Guaranties; (j), ) Indebtedness consisting of guarantees of the Borrower and the Subsidiary Guarantors in respect of Indebtedness otherwise permitted hereunder of the Borrower or any wholly-owned Subsidiary of the Borrower; and; (k)) Indebtedness owed to a seller as part of the purchase price in connection with a Permitted Acquisition or that (i) relates to the customary post-closing adjustments with respect to accounts receivable, (l)accounts payable, (m)net worth and/or similar items typically subject to post-closing adjustments in similar transactions, and (o) are outstanding for a period of this Section 2.5) (after giving effect to the incurrence and application of proceeds of such Permitted Refinancing two (2) using an interest rate equal years or less following the creation thereof or (ii) relates to indemnities granted to the weighted average interest rate of all such Senior Debt outstanding after giving effect to seller in the incurrence of the Permitted Refinancing Indebtedness and the application of the proceeds therefrom);transaction.

Restrictions on Indebtedness. The Guarantor and the Borrower shall will not, and will not directly or indirectly permit any of their Subsidiaries to, create, incur, issue, assume, permit, suffer to exist guarantee or otherwise be or become liable with respect toremain liable, contingently or otherwise (collectivelyotherwise, “incur”), with respect to any Indebtedness; provided, however, that the Borrower may incur any of the following items of IndebtednessIndebtedness other than: (a) Indebtedness existing to the Banks and the Agent arising under the Initial Senior Bond Indentures in an amount not to exceed the amount of Indebtedness outstanding under the Initial Senior Bond Indentures as any of the date Loan Documents or in respect of the Fifth Omnibus Amendmentinterest rate protection arrangements; (b) Permitted Refinancing current liabilities of the Guarantor, the Borrower or such Subsidiary incurred in the ordinary course of business not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services; (c) Indebtedness in respect of taxes, assessments, governmental charges (including any taxes, assessments, governmental charges or levies arising or resulting from the audits being conducted as of the Closing Date by state revenue authorities and described on SCHEDULE 10.1 hereto) or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of sec.9.8; (d) Indebtedness in respect of judgments or awards that have been in force for less than the applicable period for taking an appeal so long as execution is not levied thereunder or in respect of which the Guarantor, the Borrower or such Subsidiary shall at the time in good faith be prosecuting an appeal or proceedings for review and in respect of which a stay of execution shall have been obtained pending such appeal or review; (e) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business; (f) obligations under Capitalized Leases not exceeding, in the aggregate, $10,000,000 MINUS the amount of obligations under Capitalized Leases set forth on SCHEDULE 10.1 hereto at any time outstanding; (g) Indebtedness incurred in connection with the acquisition after the date hereof of any real or personal property by the Guarantor, the Borrower or such Subsidiary, PROVIDED that the aggregate principal amount of such Indebtedness of the Guarantor, the Borrower and their Subsidiaries shall not exceed the aggregate amount of $4,000,000 at any one time; (h) Indebtedness existing on the date hereof and listed and described on SCHEDULE 10.1 hereto, including, but not limited to obligations under Capitalized Leases listed and described thereon; (i) Indebtedness, in exchange foran aggregate outstanding amount not to exceed $1,000,000 at any time, to any federal or the net proceeds of state chartered bank which are used to renew, refund, refinance, replace, defease or discharge any Indebtedness is an Agency Account Institution (other than intercompany Indebtedness) that was permitted to be incurred under clause (a), (b) or (c) of this Section 2.5, provided that each any of the following conditions shall have been satisfied:Banks) in respect of overdrafts on demand deposit accounts maintained with such bank; (1j) Indebtedness in respect of reserves established on the Senior Facility Agent shall have received a certificate from an Authorized Officer books and records of the Guarantor and the Borrower in accordance with generally accepted accounting principles with respect to unresolved litigation; (k) Indebtedness consisting of guaranties by the Guarantor or the Borrower of obligations or liabilities of employees of either of the Guarantor or the Borrower, to the extent that payment under such guaranties is permitted by sec.10.3(f) hereof; (l) Indebtedness of the Borrower to the effect that Guarantor, or the outstanding Senior Debt (other than Working Capital Debt and Indebtedness incurred pursuant Guarantor to clauses (f), (g), (h), (i), (j), (k), (l), the Borrower; (m), and ) Indebtedness in respect of the Borrower's obligations to fund the Supplemental Executive Retirement Plan not to exceed $3,000,000 in the aggregate on any day prior to the payment in full of all the Obligations; (n) Indebtedness (including guaranties of the Borrower) in respect of the Monogram Agreement; and (o) Indebtedness of this Section 2.5the Borrower or the Guarantor (including guaranties by the Borrower or the Guarantor) (after giving effect in respect of the obligations of any Person, the business of which Person is of strategic importance in the business plan of the Borrower previously delivered to the incurrence Agent and application the Banks, so long as the maximum contingent or actual liability of proceeds of such Permitted Refinancing (2) using an interest rate equal to the weighted average interest rate Borrower and the Guarantor in respect of all such Senior Debt outstanding after giving effect to Indebtedness, together with the incurrence of Investments described in sec.10.3(h), does not exceed $1,000,000 in the Permitted Refinancing Indebtedness and the application of the proceeds therefrom);aggregate at any one time.

Restrictions on Indebtedness. The No Borrower shall not directly or indirectly will, nor will it permit any ---------------------------- of its Subsidiaries to, create, incur, issue, assume, permit, suffer to exist guarantee or otherwise be or become liable with respect toremain liable, contingently or otherwise (collectivelyotherwise, “incur”), with respect to any Indebtedness; provided, however, that the Borrower may incur any of the following items of IndebtednessIndebtedness other than: (a) Indebtedness existing to the Lenders and the Administrative Agent arising under the Initial Senior Bond Indentures in an amount not to exceed the amount of Indebtedness outstanding under the Initial Senior Bond Indentures as any of the date of the Fifth Omnibus AmendmentLoan Documents; (b) Permitted Refinancing endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business; (i) Indebtedness in respect of a mortgage financing or sale-leaseback transaction with respect to real property, fixtures, and personal property owned by the Borrowers and (ii) Indebtedness incurred in connection with the acquisition after the date hereof of any real or personal property by such Borrower or such Subsidiary or under any Capitalized Lease; provided that, in each case, (A) the aggregate amount of Indebtedness incurred in connection with such financing, sale-leaseback transaction or acquisition does not exceed the fair market value of the Borrower in exchange forreal estate, fixtures and personal property subject to such financing, sale-leaseback transaction or the net proceeds of which are used to renew, refund, refinance, replace, defease or discharge any Indebtedness (other than intercompany Indebtedness) that was permitted to be incurred under clause (a)acquisition, (bB) with respect to any such financing or (c) of this Section 2.5transaction involving Real Estate, provided that each of prior to such transaction, the following conditions shall have been satisfied: (1) the Senior Facility Administrative Agent shall have received a certificate from an Authorized Officer of the Borrower such access agreements and/or mortgagee waivers as shall be in form and substance satisfactory to the effect that the outstanding Senior Debt (other than Working Capital Debt and Indebtedness incurred pursuant to clauses (f)Administrative Agent, (g), (h), (i), (j), (k), (l), (m)C) no Default or Event of Default shall have occurred and be continuing, and (oD) in connection with the incurrence of any such Indebtedness in excess of $10,000,000 pursuant to this Section 2.5) (after giving effect 9.1(c), the Borrower shall deliver to the incurrence and application Administrative Agent a certificate demonstrating the Borrowers' pro forma compliance at the end of proceeds the current fiscal quarter with each of such Permitted Refinancing (2) using an interest rate equal to the weighted average interest rate of all such Senior Debt outstanding financial covenants set forth in Section 10 herein after giving effect to the incurrence of such Indebtedness; (d) Indebtedness in respect of Interest Rate Agreements; (e) Indebtedness existing on the Permitted Refinancing date hereof and listed and described on Schedule 9.1 hereto; -------- --- (f) Indebtedness of any Subsidiary of any Borrower existing on the date hereof to any Borrower; (g) Additional unsecured Indebtedness not otherwise covered by clauses (a) through (f) of this Section 9.1, provided that the aggregate outstanding principal amount of all such Indebtedness permitted under this clause (g) shall in no event exceed $5,000,000 at any one time; (h) letters of credit, surety bonds and other instruments or amounts deposited to secure such Borrower's and its Subsidiaries' obligations under their insurance programs relating to accident, cargo, physical damage, workers' compensation, health and other claims in an aggregate amount not to exceed $35,000,000; and (i) Indebtedness extending the maturity of, or renewing, refunding or refinancing, in whole or in part, Indebtedness incurred under clauses (c) through (h), inclusive, of this Section 9.1, provided that the terms of any such extension, renewal, refunding or refinancing of Indebtedness (and of any agreement or instrument entered into in connection therewith) including, without limitation, with respect to maturity date, amortization and subordination provisions, are no less favorable to the Borrowers and/or Administrative Agent and the application Lenders than the terms of the proceeds therefrom);Indebtedness as in effect prior to such action, and further provided that immediately before and immediately after giving effect to such extension, renewal, refunding or refinancing, no Event of Default shall have occurred and be continuing.

Restrictions on Indebtedness. The Borrower shall Company will not directly or indirectly permit any Operating Subsidiary of the Company to create, incur, issue, assume, permit, suffer to exist guarantee or otherwise be or become remain liable with respect to, contingently or otherwise (collectively, “incur”)otherwise, any Indebtedness; provided, however, that the Borrower may incur any of the following items of IndebtednessIndebtedness other than: (a) Intercompany Indebtedness existing under the Initial Senior Bond Indentures in an amount not to exceed the amount of Indebtedness outstanding under the Initial Senior Bond Indentures as Operating Subsidiaries of the date of the Fifth Omnibus AmendmentCompany; (b) Permitted Refinancing Indebtedness of Foreign Subsidiaries; (c) Subordinated Debt or other long term unsecured Indebtedness having a maturity at least one (1) year after the Final Maturity Date and providing for no payments of principal prior to the Final Maturity Date; provided that, in the case of the incurrence of additional Subordinated Debt or other long term unsecured Indebtedness by such Subsidiary after the Effective Date, (i) the Company applies the net cash proceeds of such additional Subordinated Debt or other long term unsecured Indebtedness in accordance with section 2.10(a)(iii) and (ii) no Default or Event of Default has occurred and is continuing at the time of the incurrence of such additional Indebtedness or would result after giving effect thereto; (d) Indebtedness incurred in connection with the acquisition after the date hereof of any real or personal property by such Operating Subsidiary or under any Capitalized Lease, provided that the aggregate principal amount of such Indebtedness of the Borrower in exchange for, or Operating Subsidiaries shall not exceed the net proceeds aggregate amount of which are used $10,000,000 at any one time; (e) Indebtedness to renew, refund, refinance, replace, defease or discharge the Banks and the Agent arising under any Indebtedness (other than intercompany Indebtedness) that was permitted to be incurred under clause (a), (b) or (c) of this Section 2.5, provided that each of the following conditions shall have been satisfied:Loan Documents; (1f) the Senior Facility Agent shall have received a certificate from an Authorized Officer sales of the Borrower to the effect that the outstanding Senior Debt (other than Working Capital Debt and Indebtedness incurred pursuant to clauses (f), receivables in connection with asset dispositions permitted under section 10.5.2; (g), ) other Indebtedness existing on the date hereof and described on Schedule 10.1 hereto; (h)) Indebtedness in respect of Interest Hedging Agreements in an aggregate amount not to exceed, in the case of Interest Hedging Agreements to which neither the Agent nor any Bank or Bank Affiliate is a party, $75,000,000 outstanding at any time; (i), ) Indebtedness in connection with any Permitted Receivables Securitization Facility; and (j), (k), (l), (m), and (o) of this Section 2.5) (after giving effect other Indebtedness in an aggregate principal amount not to the incurrence and application of proceeds of such Permitted Refinancing (2) using an interest rate equal to the weighted average interest rate of all such Senior Debt exceed $25,000,000 outstanding after giving effect to the incurrence of the Permitted Refinancing Indebtedness and the application of the proceeds therefrom);at any time.

Restrictions on Indebtedness. The Borrower shall Borrowers will not, and will not directly or indirectly permit any of the Guarantors to, create, incur, issue, assume, permit, suffer to exist guarantee or otherwise be or become liable with respect toremain liable, contingently or otherwise (collectivelyotherwise, “incur”), with respect to any Indebtedness; provided, however, that the Borrower may incur any of the following items of IndebtednessIndebtedness other than: (a) Indebtedness existing to the Lenders, the Issuing Bank and the Agent arising under the Initial Senior Bond Indentures in an amount not to exceed the amount of Indebtedness outstanding under the Initial Senior Bond Indentures as any of the date of the Fifth Omnibus AmendmentLoan Documents; (b) Permitted Refinancing endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business; (c) Subordinated Debt; provided that the aggregate principal amount of such Indebtedness of the Borrowers and their Subsidiaries shall not exceed the aggregate amount of $3,000,000 at any one time; (d) Indebtedness incurred in connection with the acquisition after the date hereof of any real or personal property by a Borrower in exchange for, or the net proceeds of which are used to renew, refund, refinance, replace, defease a Guarantor or discharge under any Indebtedness (other than intercompany Indebtedness) that was permitted to be incurred under clause (a), (b) or (c) of this Section 2.5Capitalized Lease, provided that each the aggregate principal amount of such Indebtedness of the following conditions Borrowers and the Guarantors shall have been satisfied:not exceed the aggregate amount of $5,000,000 at any one time; (1e) Derivative Obligations to the extent permitted by ss.9.14; (f) Indebtedness existing on the date hereof and listed and described on Schedule 9.1 hereto; (g) Indebtedness of a Borrower or Guarantor to another Borrower or Guarantor; (h) commissions and other transfers payable by Century WV to RISC in accordance with applicable Code regulations to satisfy RISC's federal income tax liabilities and to pay for reasonable accounting and corporate maintenance expenses; (i) the Senior Facility Agent shall have received a certificate from an Authorized Officer First Mortgage Notes and guaranties thereof by the Guarantors and the Borrowers, upon the terms and conditions set forth in the Indenture; (j) Indebtedness of up to $7,815,000 principal amount under the IR Bonds assumed pursuant to the Hawesville Acquisition; (k) Indebtedness consisting of contingent adjustments to the purchase price of the Borrower Hawesville Acquisition in accordance with the purchase documents as in effect on the Closing Date; (l) repurchases of stock to the effect extent permitted by Section 9.4; and (m) other Indebtedness; provided that the outstanding Senior Debt (other than Working Capital Debt and Indebtedness incurred pursuant to clauses (f), (g), (h), (i), (j), (k), (l), (m), and (o) of this Section 2.5) (after giving effect to the incurrence and application of proceeds aggregate principal amount of such Permitted Refinancing (2) using an interest rate equal to the weighted average interest rate of all such Senior Debt outstanding after giving effect to the incurrence Indebtedness of the Permitted Refinancing Indebtedness Borrowers and the application Guarantors shall not exceed the aggregate amount of the proceeds therefrom);$1,000,000 at any one time.

Restrictions on Indebtedness. The Borrower shall will not, and will not directly or indirectly permit any of its Subsidiaries to, create, incur, issue, assume, permit, suffer to exist guarantee or otherwise be or become liable with respect toremain liable, contingently or otherwise (collectivelyotherwise, “incur”), with respect to any Indebtedness; provided, however, that the Borrower may incur any of the following items of IndebtednessIndebtedness other than: (a) Indebtedness existing arising under the Initial Senior Bond Indentures in an amount not to exceed the amount of Indebtedness outstanding under the Initial Senior Bond Indentures as any of the date of the Fifth Omnibus AmendmentLoan Documents; (b) Permitted Refinancing Indebtedness of the Borrower to any Subsidiary and any Subsidiary to the Borrower or any other Subsidiary to the extent the Indebtedness referred to in exchange for, this §9.1(b) evidences a loan or the net proceeds of which are used to renew, refund, refinance, replace, defease or discharge any Indebtedness (other than intercompany Indebtedness) that was advance permitted to be incurred under clause (a), (b) or §9.3; (c) Indebtedness consisting of this Section 2.5reimbursement obligations under surety, provided that each indemnity, performance, release and appeal bonds and guarantees thereof and letters of credit required in the following conditions shall have been satisfied: (1) ordinary course of business or in connection with the Senior Facility Agent shall have received a certificate from an Authorized Officer enforcement of rights or claims of the Borrower or its Subsidiaries, in each case to the effect that extent a Letter of Credit supports in whole or in part the outstanding Senior Debt obligations of the Borrower and its Subsidiaries with respect to such bonds, guarantees and letters of credit; (other than Working Capital Debt d) Subordinated Debt; (e) Indebtedness in respect of Capitalized Leases, Synthetic Leases and purchase money obligations for fixed or capital assets, and if subject to a Lien permitted by §9.2.1(iv), within the limitations set forth in such §9.2.1(iv); provided, however, the aggregate amount of such Indebtedness incurred pursuant to clauses of the Borrower and its Subsidiaries shall not exceed the aggregate amount of $15,000,000 at any one time; (f), ) Indebtedness permitted by §9.10 in respect of Hedging Agreements; (g)) Indebtedness existing on the date hereof and listed and described on Schedule 9.1 hereto including any extension or renewals or refinancing thereof, provided the principal amount thereof is not increased; (h), ) Indebtedness consisting of guarantees by the Borrower and its Subsidiaries incurred in the ordinary course of business for an aggregate amount not to exceed $15,000,000 at any one time; (i), ) Indebtedness consisting of the Subsidiary Guaranties; (j), ) Indebtedness consisting of guarantees of the Borrower and the Subsidiary Guarantors in respect of Indebtedness otherwise permitted hereunder of the Borrower or any wholly-owned Subsidiary of the Borrower; (k)) Indebtedness owed to a seller as part of the purchase price in connection with a Permitted Acquisition or that (i) relates to the customary post-closing adjustments with respect to accounts receivable, (l)accounts payable, (m)net worth and/or similar items typically subject to post-closing adjustments in similar transactions, and (o) are outstanding for a period of this Section 2.5) (after giving effect to the incurrence and application of proceeds of such Permitted Refinancing two (2) using an interest rate equal years or less following the creation thereof or (ii) relates to indemnities granted to the weighted average interest rate of all such Senior Debt outstanding after giving effect seller in the transaction; and (l) Indebtedness pursuant to the incurrence of the Permitted Refinancing Indebtedness and the application of the proceeds therefrom);Existing Credit Agreement.

Restrictions on Indebtedness. The Borrower shall Company will not directly or indirectly permit any of its Subsidiaries (other than the Guarantor) to create, incur, issue, assume, permit, suffer to exist or otherwise be or become liable with respect toremain liable, contingently or otherwise (collectivelyotherwise, “incur”), with respect to any Indebtedness; provided, howeveror to become or be responsible in any manner (whether by agreement to purchase any obligations, that the stock, assets, goods or services, or to supply or advance any funds, assets, goods or services or otherwise) with respect to any Indebtedness, in each case, of any other Person other than any Borrower may incur or any of the following items of Indebtednessits Subsidiaries, other than: (a) Indebtedness listed in Schedule 8.1(a), any extension, renewal or refinancing of such Indebtedness and any additional bonds issued and Capital Leases entered into from time to time after the Effective Date; provided that (i) if such Indebtedness is an extension, renewal or refinancing of existing under Indebtedness, the Initial Senior Bond Indentures terms and conditions of any such extensions, renewals or refinancings shall not increase the relative priority of such Indebtedness over the priority of the original Indebtedness, and (ii) in an amount not to exceed no event shall the aggregate outstanding principal amount of Indebtedness outstanding under permitted by this §8.1(a) exceed the Initial Senior Bond Indentures as aggregate principal amount of the date of Indebtedness listed on Schedule 8.1(a) that is outstanding on the Fifth Omnibus Amendment;Effective Date (plus transaction costs, including premiums and fees, related thereto); and (b) Permitted Refinancing other Indebtedness; provided that the sum (without duplication) of (i) the aggregate outstanding principal amount of Indebtedness permitted under this §8.1(b), plus (ii) the aggregate outstanding principal amount of secured Indebtedness of the Borrower in exchange for, or the net proceeds of which are used to renew, refund, refinance, replace, defease or discharge any Indebtedness (other than intercompany Indebtedness) that was Company and its Subsidiaries permitted to be incurred under clause (a), (b) or (c) of this Section 2.5, provided that each of the following conditions shall have been satisfied: (1) the Senior Facility Agent shall have received a certificate from an Authorized Officer of the Borrower to the effect that the outstanding Senior Debt (other than Working Capital Debt and Indebtedness incurred pursuant to clauses (f), (g), (h), (i), (j), subsections (k), (l) and (m) of the definition of “Permitted Liens”, plus (iii) the xxxxxxxxx xxxxxx xx Xxxxxxxxxxxx with respect to outstanding Permitted Receivables Transactions (determined in accordance with the proviso to the definition of “Indebtedness”), (m), and (o) shall not exceed 15% of this Section 2.5) (after giving effect to the incurrence and application of proceeds of such Permitted Refinancing (2) using an interest rate equal to the weighted average interest rate of all such Senior Debt outstanding after giving effect to the incurrence of the Permitted Refinancing Indebtedness and the application of the proceeds therefrom);Consolidated Tangible Assets at any time.

Restrictions on Indebtedness. The Borrower shall Borrowers will not, and will not directly or indirectly permit any of their Restricted Subsidiaries to, create, incur, issue, assume, permit, suffer to exist guarantee or otherwise be or become liable with respect toremain liable, contingently or otherwise (collectivelyotherwise, “incur”), with respect to any Indebtedness; provided, however, that the Borrower may incur any of the following items of IndebtednessIndebtedness other than: (a) Indebtedness existing to the Lenders, the Issuing Lender and each Agent arising under the Initial Senior Bond Indentures in an amount not to exceed the amount of Indebtedness outstanding under the Initial Senior Bond Indentures as any of the date of the Fifth Omnibus AmendmentLoan Documents; (b) Permitted Refinancing Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §9.8; (c) Indebtedness in respect of judgments or awards that have been in force for less than the applicable period for taking an appeal so long as execution is not levied thereunder or in respect of which any Borrower or any of its Restricted Subsidiaries shall at the time in good faith be prosecuting an appeal or proceedings for review and in respect of which a stay of execution shall have been obtained pending such appeal or review; (d) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business; (e) Indebtedness of any of the Borrowers or any of their Restricted Subsidiaries to any of the Borrowers or any of their other Restricted Subsidiaries consisting of rights of reimbursement, contribution, subrogation and the like in connection with the joint and several obligations of the Borrowers and their Restricted Subsidiaries under the Loan Documents; (f) Indebtedness incurred (other than under this Credit Agreement) or assumed in connection with the acquisition after the date hereof of any real or personal property by the Borrowers or their Restricted Subsidiaries (including Indebtedness in respect of Capitalized Leases), provided that the aggregate principal amount of such Indebtedness of (i) the U.S. Borrower and its Restricted Subsidiaries shall not exceed the amount of $45,000,000 at any one time, (ii) the Canadian Borrower and its Restricted Subsidiaries shall not exceed the aggregate amount of $10,000,000 at any one time, (iii) the European Borrower and its Restricted Subsidiaries shall not exceed the amount of $5,000,000 at any one time, and (iv) and the Australian Borrower its Restricted Subsidiaries shall not exceed the aggregate amount of $10,000,000 at any one time; (g) Indebtedness existing on the Closing Date and listed and described on Schedule 10.1 hereto including any extensions or refinancings thereof on substantially similar terms as the Indebtedness being refinanced and provided there is no increase in the amount thereof; (h) Indebtedness of any Loan Party to any other Loan Party, provided that the aggregate amount of any Indebtedness from any Foreign Loan Party to any U.S. Loan Party, together with, without duplication, Investments by any U.S. Loan Party in any Foreign Loan Party permitted under §10.3(i), shall not exceed $125,000,000; (i) Indebtedness of the Borrower Borrowers with respect to Hedging Agreements entered into in exchange forthe ordinary course of business and not for speculative purposes; provided that such Hedging Agreements are not in respect of credit default swap derivatives or equity derivatives; (j) Indebtedness in respect of performance, surety, statutory, insurance, appeal or similar bonds obtained in the net proceeds ordinary course of which are used business; (k) Indebtedness of the Borrowers or any of their Restricted Subsidiaries in respect of guaranties of obligations in connection with Permitted Acquisitions and other Investments permitted by §10.3(i) and for the operation of any of their Restricted Subsidiaries (in each case, to renewthe extent the underlying Indebtedness with respect thereto is otherwise permitted under this §10.1), refundnot to exceed $40,000,000 (or, refinanceduring the period commencing on the Closing Date through the first anniversary of the Closing Date, replace$48,000,000) in the aggregate for all such Indebtedness permitted at any time; (l) Indebtedness with respect to the Senior Notes, defease or discharge in an aggregate outstanding principal amount not to exceed $300,000,000 at any Indebtedness one time; provided that such Senior Notes shall not have (x) maturity dates prior to the Maturity Date (other than intercompany Indebtednessthe 4.85% Series 2004-A Senior Notes due November 1, 2011 and the Floating Rate Series 2005-C Senior Notes due July 26, 2012) that was permitted to be incurred under clause nor (a), y) covenants or events of default more restrictive than those in this Credit Agreement; (bm) or (c) Other Indebtedness not included in the foregoing provisions of this Section 2.5, provided that each of §10.1 not to exceed $50,000,000 in the following conditions shall have been satisfied:aggregate at any time outstanding; and (1n) the Senior Facility Agent shall have received a certificate from an Authorized Officer Indebtedness of the Borrower any Loan Party to the effect that the outstanding Senior Debt (other than Working Capital Debt and Indebtedness incurred pursuant to clauses (f)any Non-Guarantor Subsidiary; provided, (g)that, (h), (i), (j), (k), (l), (m), and (o) of this Section 2.5) (after giving effect to the incurrence and application of proceeds of such Permitted Refinancing (2) using an interest rate equal to the weighted average interest rate of all such Senior Debt outstanding after giving effect to Indebtedness does not exceed $20,000,000 in the incurrence of the Permitted Refinancing Indebtedness and the application of the proceeds therefrom);aggregate at any time outstanding.

Restrictions on Indebtedness. The Borrower shall will not, and will not directly or indirectly permit any of its Subsidiaries to, create, incur, issue, assume, permit, suffer to exist guarantee or otherwise be or become liable with respect toremain liable, contingently or otherwise (collectivelyotherwise, “incur”), with respect to any Indebtedness; provided, however, that the Borrower may incur any of the following items of IndebtednessIndebtedness other than: (a) Indebtedness existing to the Banks and the Agent arising under the Initial Senior Bond Indentures in an amount not to exceed the amount of Indebtedness outstanding under the Initial Senior Bond Indentures as any of the date of the Fifth Omnibus AmendmentLoan Documents; (b) Permitted Refinancing endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business; (c) Indebtedness arising under the New Notes, Indebtedness arising under the Xxxxxx Facility, Indebtedness arising under the Textron Facility, and Indebtedness arising under the Inventory and Receivables Facility; (d) Indebtedness incurred in connection with the acquisition after the date hereof of any real or personal property by the Borrower or any Subsidiary of the Borrower in exchange for, or the net proceeds of which are used to renew, refund, refinance, replace, defease or discharge under any Indebtedness (other than intercompany Indebtedness) that was permitted to be incurred under clause (a), (b) or (c) of this Section 2.5Capitalized Lease, provided that each the aggregate principal amount of such Indebtedness incurred by the Borrower and its Subsidiaries shall not exceed the aggregate amount of $2,000,000 per calendar year; (e) Indebtedness arising under a revolving credit facility secured by a pledge of loans made by the Borrower to consumer borrowers (and the related mortgages or deeds of trust on Timeshare Interests purchased by the consumer borrowers, which loans have not been pledged to any Person by the Borrower); provided that such Indebtedness shall be incurred only if (A) no Default or Event of Default has occurred and is continuing or will result therefrom, (B) in the reasonable opinion of the following conditions shall have been satisfied: Agent, such Indebtedness is substantially similar in structure to this Credit Agreement, and (1C) the Senior Facility aggregate outstanding principal amount of such Indebtedness shall not exceed $20,000,000 at any time or, if the aggregate outstanding principal amount of such Indebtedness shall exceed $20,000,000, the Agent shall have received a certificate from an Authorized Officer provided its prior written consent thereto (which consent will not be unreasonably withheld); (f) Indebtedness in respect of the Borrower sale of "receivables" described in clause (vii) of the definition of Indebtedness, to the effect that the outstanding Senior Debt (other than Working Capital Debt and Indebtedness incurred pursuant to clauses (f), extent permitted by Section 8.5.2 hereof; and (g)) Indebtedness existing on November 1, (h), (i), (j), (k), (l), (m), 2001 and (o) of this Section 2.5) (after giving effect to the incurrence listed and application of proceeds of such Permitted Refinancing (2) using an interest rate equal to the weighted average interest rate of all such Senior Debt outstanding after giving effect to the incurrence of the Permitted Refinancing Indebtedness and the application of the proceeds therefrom);described on SCHEDULE 8.1 hereto.

Restrictions on Indebtedness. The Borrower shall will not, and will not directly or indirectly permit any of its Subsidiaries to, create, incur, issue, assume, permit, suffer to exist guarantee or otherwise be or become liable with respect toremain liable, contingently or otherwise (collectivelyotherwise, “incur”), with respect to any Indebtedness; provided, however, that the Borrower may incur any of the following items of IndebtednessIndebtedness other than: (a) Indebtedness existing to the Lenders and the Administrative Agent arising under the Initial Senior Bond Indentures in an amount not to exceed the amount of Indebtedness outstanding under the Initial Senior Bond Indentures as any of the date of the Fifth Omnibus AmendmentLoan Documents; (b) Permitted Refinancing endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business; (c) Indebtedness in respect of any Derivative Contracts in the ordinary course of business; (d) Existing Senior Debt, and refundings, replacements or refinancings thereof; provided that no such refunding or refinancing shall shorten the maturity or weighted average life to maturity or increase the principal amount of any of the Existing Senior Debt; (e) Indebtedness of the Borrower’s domestic Subsidiaries not to exceed $10,000,000, including such Indebtedness outstanding on the Closing Date; (f) Indebtedness of the Borrower’s foreign Subsidiaries not to exceed in the aggregate for all such foreign Subsidiaries, ten percent (10%) of Consolidated Total Assets and $50,000,000 in the aggregate for any foreign Subsidiary, including such Indebtedness outstanding on the Closing Date; provided that Indebtedness of foreign Subsidiaries of the Borrower that are party to the Intercreditor Agreement and all of whose lenders are party to the Intercreditor Agreement shall not be included in this calculation; (g) Indebtedness of the Borrower in exchange for, or any Subsidiary that constitutes a Synthetic Lease or Capitalized Lease or otherwise incurred to finance the net proceeds acquisition of which are used to renew, refund, refinance, replace, defease fixed or discharge any Indebtedness capital assets (other than intercompany Indebtedness) that was permitted pursuant to be incurred under clause (aSale Leaseback Transactions referred to in §8.1(m), whether pursuant to a loan, financing lease or otherwise) in an aggregate principal amount not to exceed $30,000,000 at any time outstanding; (bh) Indebtedness of the Borrower or any Subsidiary in respect of Subordinated Debt; (ci) Indebtedness of this Section 2.5the Borrower owing to any Subsidiary of the Borrower which is expressly subordinated to the prior payment in full in cash of all Obligations on terms disclosed to and reasonably acceptable to the Administrative Agent prior to the incurrence thereof; (j) Indebtedness of a Person outstanding at the time it is first acquired by the Borrower in an acquisition permitted pursuant to §8.5.1(g), provided that each any such Indebtedness was not created at the time of the following conditions shall have been satisfied:or in contemplation or in anticipation of such acquisition; (1k) the Senior Facility Agent shall have received a certificate from an Authorized Officer Indebtedness of the Borrower or any of its Subsidiaries incurred in connection with the issuance of any surety bonds, Performance Letters of Credit or other similar performance bonds required pursuant to any contractual obligation or requirement of law to which the effect that Borrower or any of its Subsidiaries are subject in an aggregate principal amount not to exceed $15,000,000 at any time outstanding; (l) additional Indebtedness of the outstanding Senior Debt (other than Working Capital Debt and Borrower not exceeding $35,000,000 less any Indebtedness incurred pursuant under this Credit Agreement (excluding Indebtedness incurred under this Credit Agreement and used to clauses refund, replace or refinance Existing Senior Notes as permitted under paragraph (fd), ) or under paragraph (g), in an aggregate principal amount at any one time outstanding; (hm) Indebtedness of Subsidiaries of the Borrower owing to any other Subsidiaries of the Borrower or to the Borrower which results from an Investment permitted under §8.3(g) or (i); and (n) Indebtedness of the Borrower and its domestic Subsidiaries incurred in connection with Sale Leaseback Transactions, in an aggregate principal amount not to exceed $25,000,000 at any time outstanding. Notwithstanding the foregoing, the aggregate amount of (i) Indebtedness of the Borrower (under paragraphs (j) secured by Liens plus (ii) Indebtedness of the Borrower’s Subsidiaries (under paragraphs (e), (i), f) or (j), ) shall not exceed fifteen percent (k), (l), (m), and (o15%) of this Section 2.5) (after giving effect to the incurrence and application of proceeds of such Permitted Refinancing (2) using an interest rate equal to the weighted average interest rate of all such Senior Debt outstanding after giving effect to the incurrence Consolidated Total Assets of the Permitted Refinancing Indebtedness and the application Borrower, determined as of the proceeds therefrom);end of the then most recently completed fiscal year of the Borrower.

Restrictions on Indebtedness. The Borrower shall will not, and will not directly or indirectly permit any of its Subsidiaries to, create, incur, issue, assume, permit, suffer to exist guarantee or otherwise be or become liable with respect toremain liable, contingently or otherwise (collectivelyotherwise, “incur”), with respect to any Indebtedness; provided, however, that the Borrower may incur any of the following items of IndebtednessIndebtedness other than: (a) Indebtedness existing owing to the Lenders and the Agents arising under the Initial Senior Bond Indentures in an amount not to exceed the amount of Indebtedness outstanding under the Initial Senior Bond Indentures as any of the date of the Fifth Omnibus AmendmentLoan Documents; (b) Permitted Refinancing Indebtedness current liabilities of the Borrower or such Subsidiary (including under any operating leases and studio and tower leases) incurred in exchange forthe ordinary course of business not incurred through (i) the borrowing of money, or (ii) the net proceeds obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services; (c) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business; (d) Indebtedness in respect of (i) judgments or awards that have been in force for less than the applicable period for taking an appeal so long as execution is not levied thereunder or in respect of which the Borrower or such Subsidiary (as the case may be) shall at the time in good faith be prosecuting an appeal or proceedings for review and in respect of which a stay of execution shall have been obtained pending such appeal or review, (ii) final judgments against the Borrower or any of its Subsidiaries that in the aggregate at any time do not exceed $5,000,000 and (iii) claims which are used currently being contested in good faith by appropriate proceedings if adequate reserves shall have been set aside with respect thereto; (e) upon not less than five (5) Business Days' prior written notice to renewthe Administrative Agent, refundSubordinated Debt, refinanceprovided that, replace, defease or discharge (i) the Net Cash Debt Issuance Proceeds of any Indebtedness such Subordinated Debt shall be applied in accordance with §4.4 (other than intercompany Indebtedness) that was permitted to be incurred under clause (aas applicable at the time), (bii) any such Subordinated Debt must not be issued for a cash amount that is less than 90% of the accreted value of such Subordinated Debt at issuance, and (iii) no Default or Event of Default has occurred and is continuing at the time of the incurrence of such Subordinated Debt or would result after giving effect thereto; (cf) Indebtedness incurred in connection with, and within 180 days of, the acquisition after the date hereof of this Section 2.5, any real or personal property by the Borrower or such Subsidiary or under any Capitalized Lease and any refinancings thereof provided that each of the following conditions shall have been satisfied: (1x) the Senior Facility Agent shall have received a certificate from an Authorized Officer aggregate principal amount of such Indebtedness (including any refinancings thereof) of the Borrower and its Subsidiaries shall not exceed the aggregate amount of, so long as no Event of Default has occurred and is continuing at the time of its incurrence or refinancing, $5,000,000 at any one time; (y) the amount of such Indebtedness does not exceed the fair market value of the property so acquired; and (z) the assets securing such Indebtedness are limited to the effect that assets so acquired. (g) upon prior written notice to the outstanding Senior Debt Administrative Agent, Indebtedness in respect of interest rate agreements (other than Working Capital Debt and Indebtedness incurred whether from fixed to floating or from floating to fixed), swaps or similar arrangements entered into pursuant to clauses (f)§9.14 or designed to manage interest rates or interest rate risk in connection with this Credit Agreement or any other Indebtedness for borrowed money evidenced by bonds, (g), debentures or other similar instruments owed by the Borrower or any of its Subsidiaries; (h), (i), (j), (k), (l), (m), ) Indebtedness existing on the date hereof and (o) of this Section 2.5) (after giving effect to the incurrence listed and application of proceeds of such Permitted Refinancing (2) using an interest rate equal to the weighted average interest rate of all such Senior Debt outstanding after giving effect to the incurrence of the Permitted Refinancing Indebtedness and the application of the proceeds therefrom)described on Schedule 10.1 hereto;

Restrictions on Indebtedness. The Borrower shall will not, and will not directly or indirectly permit any of its Subsidiaries to, create, incur, issue, assume, permit, suffer to exist guarantee or otherwise be or become liable with respect toremain liable, contingently or otherwise (collectivelyotherwise, “incur”), with respect to any Indebtedness; provided, however, that the Borrower may incur any of the following items of IndebtednessIndebtedness other than: (a) Indebtedness existing owing to the Lenders and the Agents arising under the Initial Senior Bond Indentures in an amount not to exceed the amount of Indebtedness outstanding under the Initial Senior Bond Indentures as any of the date of the Fifth Omnibus AmendmentLoan Documents; (b) Permitted Refinancing Indebtedness current liabilities of the Borrower or such Subsidiary (including under any operating leases and studio and tower leases) incurred in exchange forthe ordinary course of business not incurred through (i) the borrowing of money, or (ii) the net proceeds obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services; (c) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business; (d) Indebtedness in respect of (i) judgments or awards that have been in force for less than the applicable period for taking an appeal so long as execution is not levied thereunder or in respect of which the Borrower or such Subsidiary (as the case may be) shall at the time in good faith be prosecuting an appeal or proceedings for review and in respect of which a stay of execution shall have been obtained pending such appeal or review, (ii) final judgments against the Borrower or any of its Subsidiaries that in the aggregate at any time do not exceed $5,000,000 and (iii) claims which are used currently being contested in good faith by appropriate proceedings if adequate reserves shall have been set aside with respect thereto; (e) upon not less than five (5) Business Days’ prior written notice to renewthe Administrative Agent, refundSubordinated Debt, refinanceprovided that, replace, defease or discharge (i) the Net Cash Debt Issuance Proceeds of any Indebtedness such Subordinated Debt shall be applied in accordance with §4.4 (other than intercompany Indebtedness) that was permitted to be incurred under clause (aas applicable at the time), (bii) any such Subordinated Debt must not be issued for a cash amount that is less than 90% of the accreted value of such Subordinated Debt at issuance, and (iii) no Default or Event of Default has occurred and is continuing at the time of the incurrence of such Subordinated Debt or would result after giving effect thereto; (f) Indebtedness (i) incurred in connection with, and within 180 days of, the acquisition after the date hereof of any real or personal property by the Borrower or such Subsidiary or under any Capitalized Lease or (cii) assumed by the Borrower or any of its Subsidiaries in connection with a Permitted Acquisition, and with respect to clauses (i) and (ii) immediately preceding, any refinancings thereof provided that (x) the aggregate principal amount of such Indebtedness (including any refinancings thereof) of this Section 2.5, provided that each the Borrower and its Subsidiaries shall not exceed the aggregate amount of the following conditions shall have been satisfied: (1) so long as no Event of Default has occurred and is continuing at the Senior Facility Agent shall have received a certificate from time of its incurrence or refinancing, $10,000,000, during the Suspension Period (and $00 (zero) if an Authorized Officer Event of Default has occurred and is continuing at the Borrower to the effect that the outstanding Senior Debt (other than Working Capital Debt time of incurrence) and Indebtedness incurred pursuant to clauses (f), (g), (h), (i), (j), (k), (l), (m), and (o) of this Section 2.5) (after giving effect to the incurrence and application of proceeds of such Permitted Refinancing (2) using an $35,000,000 after the Revert Date, in each case at any one time; (y) the amount of such Indebtedness does not exceed the fair market value of the property so acquired; and (z) with respect to clause (ii) above, the assets securing such Indebtedness are limited to the assets so acquired or which secured the Indebtedness at the time it was assumed so long as such liens were not granted or created in anticipation of such assumption; (g) upon prior written notice to the Administrative Agent, Indebtedness in respect of interest rate equal agreements (whether from fixed to the weighted average floating or from floating to fixed), swaps or similar arrangements entered into pursuant to §9.14 or designed to manage interest rates or interest rate risk in connection with this Credit Agreement or any other Indebtedness for borrowed money evidenced by bonds, debentures or other similar instruments owed by the Borrower or any of all such Senior Debt outstanding after giving effect to its Subsidiaries; (h) Indebtedness existing on the incurrence of the Permitted Refinancing Indebtedness date hereof and the application of the proceeds therefrom)listed and described on Schedule 10.1 hereto;

Restrictions on Indebtedness. The Borrower shall not directly or indirectly None of the Borrowers will, nor will they permit any Subsidiary to, create, incur, issue, assume, permit, suffer to exist guarantee or otherwise be or become liable with respect toremain liable, contingently or otherwise (collectivelyotherwise, “incur”), with respect to any Indebtedness; provided, however, that the Borrower may incur any of the following items of IndebtednessIndebtedness other than: (a) Indebtedness existing to the Lenders arising under the Initial Senior Bond Indentures in an amount not to exceed the amount of Indebtedness outstanding under the Initial Senior Bond Indentures as any of the date of the Fifth Omnibus AmendmentLoan Documents; (b) Permitted Refinancing Indebtedness current liabilities of the Borrower Borrowers and their Subsidiaries, incurred in exchange forthe ordinary course of business not incurred through (i) the borrowing of money, or (ii) the net proceeds obtaining of which are used to renew, refund, refinance, replace, defease or discharge any Indebtedness (other than intercompany Indebtedness) that was permitted to be incurred under clause (a), (b) or credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services; (c) Indebtedness in respect of this Section 2.5taxes, provided assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that each payment therefor shall not at the time be required to be made in accordance with the provisions of §8.7; (d) Indebtedness in respect of judgments or awards that have been in force for less than the following conditions applicable period for taking an appeal so long as execution is not levied thereunder and the Borrowers or their Subsidiaries, as applicable shall at the time in good faith be prosecuting an appeal or proceedings for review and in respect of which a stay of execution shall have been satisfied:obtained pending such appeal or review; (1e) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business; (f) the Senior Facility Prepetition Lender Debt and Indebtedness existing on the date hereof are listed and described on Schedule 9.1(f) hereto; (g) Indebtedness in respect of performance, surety, statutory, appeal or similar bonds obtained in the ordinary course of business and listed and described on Schedule 9.1(g) hereto; (h) Indebtedness consisting of obligations of any of the Borrowers under any operating lease or real estate lease and listed and described on Schedule 9.1(h) hereto; (i) Indebtedness in respect of netting services, overdraft protections and otherwise in connection with customary deposit account maintained by the Borrowers and their Subsidiaries as part of their ordinary cash management program; (j) Indebtedness incurred by Worldspace India to the extent the Lenders have consented in writing to such Indebtedness and such Indebtedness is not guaranteed by and is non-recourse to any Borrowers or any other Subsidiaries of the Borrower; (k) Indebtedness of any Subsidiary of the Borrowers to a Borrower to the extent approved by the Lenders in their sole discretion; provided that (i) such Indebtedness shall be evidenced by one or more promissory notes, (ii) such promissory notes shall be pledged to the Collateral Agent for the benefit of the Lenders pursuant to documentation in form and substance satisfactory to the Lenders; and (iii) the Lenders shall have received a certificate from an Authorized Officer of the Borrower evidence satisfactory to the effect them that the outstanding Senior Debt (other than Working Capital Debt and Indebtedness incurred pursuant to clauses (f), (g), (h), (i), (j), (k), (l), (m), and (o) of this Section 2.5) (after giving effect to the incurrence and application of proceeds of such Permitted Refinancing (2) using an interest rate equal to the weighted average interest rate of Collateral Agent has received all such Senior Debt outstanding after giving effect to the incurrence promissory notes, together with instruments of the Permitted Refinancing Indebtedness and the application of the proceeds therefrom);transfer with respect thereto endorsed in blank.

Restrictions on Indebtedness. The Borrower shall will not, and will not directly or indirectly ---------------------------- permit any of its Subsidiaries to, create, incur, issue, assume, permit, suffer to exist guarantee or otherwise be or become liable with respect toremain liable, contingently or otherwise (collectivelyotherwise, “incur”), with respect to any Indebtedness; provided, however, that the Borrower may incur any of the following items of IndebtednessIndebtedness other than: (a) Indebtedness existing to the Banks and the Agent arising under the Initial Senior Bond Indentures in an amount not to exceed the amount of Indebtedness outstanding under the Initial Senior Bond Indentures as any of the date of the Fifth Omnibus AmendmentLoan Documents; (b) Permitted Refinancing endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business; (c) Indebtedness incurred in connection with the acquisition after the date hereof of any real or personal property by the Borrower or such Subsidiary or under any Capitalized Lease, provided that the aggregate -------- principal amount of such Indebtedness of the Borrower in exchange for, or and its Subsidiaries shall not exceed the net proceeds aggregate amount of which are used to renew, refund, refinance, replace, defease or discharge $2,000,000 at any one time; (d) Indebtedness (other than intercompany Indebtedness) that was permitted to be incurred under clause (a), (b) or (c) existing on the date of this Section 2.5, provided that each of the following conditions shall have been satisfied:Credit Agreement and listed and described on Schedule 8.1 hereto; -------- --- (1e) the Senior Facility Agent shall have received Indebtedness of a certificate from an Authorized Officer Subsidiary of the Borrower to the effect that Borrower so long as such Subsidiary has guaranteed all the outstanding Senior Debt (other than Working Capital Debt and Indebtedness incurred Obligations hereunder pursuant to clauses the Guaranty; (f)) in addition to those items set forth on Schedule 8.1, (g)------------ Indebtedness of the Borrower incurred in connection with the issuance of a letter of credit for the account of the Borrower to be issued to a landlord of the Borrower as substitution for a cash security deposit by the Borrower, (h), (i), (j), (k), (l), (m), and (o) of this Section 2.5) (after giving effect to so long as the incurrence and application of proceeds of such Permitted Refinancing (2) using an interest rate equal to the weighted average interest rate aggregate face amount of all such Senior Debt outstanding after giving effect letters of credit so issued does not exceed $250,000; and (g) other unsecured Indebtedness not otherwise expressly permitted pursuant to the incurrence of the Permitted Refinancing Indebtedness and the application of the proceeds therefrom);this (S)8.1 in an aggregate amount not to exceed $500,000 at any time outstanding.

Restrictions on Indebtedness. The Borrower shall will not, and will not directly or indirectly permit any of its Subsidiaries to, create, incur, issue, assume, permit, suffer to exist guarantee or otherwise be or become liable with respect toremain liable, contingently or otherwise (collectivelyotherwise, “incur”), with respect to any Indebtedness; provided, however, that the Borrower may incur any of the following items of IndebtednessIndebtedness other than: (a) Indebtedness existing to the Lenders and the Administrative Agent arising under the Initial Senior Bond Indentures in an amount not to exceed the amount of Indebtedness outstanding under the Initial Senior Bond Indentures as any of the date of the Fifth Omnibus AmendmentLoan Documents; (b) Permitted Refinancing endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business; (c) Indebtedness incurred in connection with (i) the acquisition after the date hereof of any real or personal property by the Borrower or any Restricted Subsidiary or under any Capitalized Lease, PROVIDED, that the aggregate principal amount of such Indebtedness of the Borrower and its Restricted Subsidiaries shall not exceed the aggregate amount of $6,000,000 at any one time, and (ii) a Permitted Acquisition, PROVIDED, that the aggregate principal amount of such Indebtedness of the Borrower and its Restricted Subsidiaries shall not exceed the aggregate amount of $7,000,000 at any one time; (d) Indebtedness in exchange forrespect of Interest Rate Agreements or derivative contracts, in each case entered into in the ordinary course of business and not for speculative purposes or as an arbitrage of rates; (e) Indebtedness existing on the net proceeds date hereof and listed and described on SCHEDULE 9.1 hereto, and any refinancing of which are used to renewsuch Indebtedness; PROVIDED, refund, refinance, replace, defease or discharge any Indebtedness that (other than intercompany Indebtednessx) that was permitted to be incurred under clause the principal amount (a)as such amount may have been reduced following the Closing Date) thereof is not increased, (by) or the maturity date thereof is not shortened, and (cz) the material terms thereof are not materially more onerous on the Borrower than the terms contained in the Indebtedness being refinanced; (f) Indebtedness of this Section 2.5, provided that each a Subsidiary of the following conditions shall have been satisfied:Borrower existing on the date hereof to the Borrower; (1g) the Senior Facility Agent shall have received unsecured Indebtedness of a certificate from an Authorized Officer Restricted Subsidiary of the Borrower to the effect Borrower which Indebtedness (i) shall not be forgiven or otherwise discharged for any consideration other than payment in full in cash (PROVIDED, that only the outstanding Senior Debt amount repaid in part shall be discharged); and (ii) shall be evidenced by one or more promissory notes which shall be delivered in pledge to the Administrative Agent pursuant to a Loan Document; (h) unsecured Indebtedness of (i) the Borrower to (A) any Restricted Subsidiary in an aggregate principal amount not to exceed $29,000,000, or (B) Restaurant Insurance Corporation in an aggregate principal amount not to exceed $10,000,000, (ii) any Unrestricted Subsidiary (other than Working Capital Debt Restaurant Insurance Corporation) to the Borrower in an aggregate principal amount not exceed $5,000; and (iii) Restaurant Insurance Corporation to the Borrower in an aggregate principal amount not to exceed $10,000,000; (i) unsecured Indebtedness in respect of guarantees made in the ordinary course of business by the Borrower or any of its Restricted Subsidiaries in respect of Indebtedness of any Restricted Subsidiary of the Borrower permitted hereunder in an aggregate principal amount not to exceed $250,000; (j) unsecured Indebtedness in respect of guarantees made in the ordinary course of business by the Borrower or any of its Restricted Subsidiaries of Indebtedness of franchisees of the Borrower or any Restricted Subsidiary in an aggregate principal amount not to exceed $5,000,000; (k) unsecured Indebtedness incurred pursuant by the Borrower or any of its Restricted Subsidiaries to clauses finance the payment of property, casualty and specialty insurance premiums in the ordinary course of the Borrower's business which is repaid within 18 months of its incurrence, PROVIDED that such Indebtedness does not exceed $7,500,000 in the aggregate at any one time outstanding; (fl) Indebtedness in respect of the Sale-Leaseback Transaction and the FFCA Mortgage Financing; (m) Indebtedness under the Existing Credit Agreement (PROVIDED, that the same is paid in full in cash and the Existing Credit Agreement is terminated (except for provisions thereof that expressly survive such termination), in each case on the Closing Date); and (g), n) other Indebtedness not described in CLAUSES (h), (i), (j), (k), (l), a) through (m), and (o) of this Section 2.5) (after giving effect in an aggregate amount not to the incurrence and application of proceeds of such Permitted Refinancing (2) using an interest rate equal to the weighted average interest rate of all such Senior Debt outstanding after giving effect to the incurrence of the Permitted Refinancing Indebtedness and the application of the proceeds therefrom);exceed $250,000 at any time outstanding.

Restrictions on Indebtedness. The Borrower shall will not, and will not directly or indirectly permit any of its Subsidiaries to, create, incur, issue, assume, permit, suffer to exist guarantee or otherwise be or become liable with respect toremain liable, contingently or otherwise (collectivelyotherwise, “incur”), with respect to any Indebtedness; provided, however, that the Borrower may incur any of the following items of IndebtednessIndebtedness other than: (a) Indebtedness existing to the Lenders and the Administrative Agent arising under the Initial Senior Bond Indentures in an amount not to exceed the amount of Indebtedness outstanding under the Initial Senior Bond Indentures as any of the date of the Fifth Omnibus AmendmentLoan Documents; (b) Permitted Refinancing endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business; (c) Indebtedness incurred in connection with (i) the acquisition after the Original Closing Date of any real or personal property by the Borrower or any Restricted Subsidiary or under any Capitalized Lease, provided; that (A) the aggregate principal amount of such Indebtedness of the Borrower and its Restricted Subsidiaries incurred after the Fourth Amendment Effective Date shall not exceed the aggregate amount of $10,000,000 at any one time during the period beginning on the Fourth Amendment Effective Date and ending on the Revolving Credit Loan Maturity Date and (B) the Borrower and its Restricted Subsidiaries shall not incur such Indebtedness in exchange foran aggregate amount greater than $4,000,000 per fiscal year, and (ii) a Permitted Acquisition; (d) Indebtedness in respect of Interest Rate Agreements or derivative contracts, in each case entered into in the net proceeds ordinary course of which are used to renewbusiness and not for speculative purposes or as an arbitrage of rates; (e) Indebtedness existing on the date hereof and listed and described on Schedule 9.1 hereto, refundand any refinancing of such Indebtedness; provided, refinance, replace, defease or discharge any Indebtedness that (other than intercompany Indebtednessx) that was permitted to be incurred under clause the principal amount (a)as such amount may have been reduced following the Closing Date) thereof is not increased, (by) or the maturity date thereof is not shortened, and (cz) the material terms thereof are not materially more onerous on the Borrower than the terms contained in the Indebtedness being refinanced; (f) Indebtedness of this Section 2.5, provided that each a Subsidiary of the following conditions shall have been satisfied:Borrower existing on the date hereof to the Borrower; (1g) the Senior Facility Agent shall have received unsecured Indebtedness of a certificate from an Authorized Officer Restricted Subsidiary of the Borrower to the effect Borrower which Indebtedness (i) shall not be forgiven or otherwise discharged for any consideration other than payment in full in cash (provided, that only the outstanding Senior Debt amount repaid in part shall be discharged); and (ii) shall be evidenced by one or more promissory notes which shall be delivered in pledge to the Administrative Agent pursuant to a Loan Document; (h) unsecured Indebtedness of (i) the Borrower to (A) any Restricted Subsidiary in an aggregate principal amount not to exceed $29,000,000, or (B) Restaurant Insurance Corporation in an aggregate principal amount not to exceed $10,000,000, (ii) any Unrestricted Subsidiary (other than Working Capital Debt Restaurant Insurance Corporation) to the Borrower in an aggregate principal amount not exceed $5,000; and (iii) Restaurant Insurance Corporation to the Borrower in an aggregate principal amount not to exceed $10,000,000; (i) unsecured Indebtedness in respect of guarantees made in the ordinary course of business by the Borrower or any of its Restricted Subsidiaries in respect of Indebtedness of any Restricted Subsidiary of the Borrower permitted hereunder in an aggregate principal amount not to exceed $250,000; (j) unsecured Indebtedness in respect of guarantees made in the ordinary course of business by the Borrower or any of its Restricted Subsidiaries of Indebtedness of franchisees of the Borrower or any Restricted Subsidiary in an aggregate principal amount not to exceed $5,000,000; (k) unsecured Indebtedness incurred pursuant by the Borrower or any of its Restricted Subsidiaries to finance the payment of property, casualty and specialty insurance premiums in the ordinary course of the Borrower’s business which is repaid within 18 months of its incurrence, provided that such Indebtedness does not exceed $7,500,000 in the aggregate at any one time outstanding; (l) Indebtedness in respect of the Sale-Leaseback Transaction and the FFCA Mortgage Financing; (m) [Intentionally Omitted]. (n) other Indebtedness not described in clauses (f), (g), (h), (i), (j), (k), (l), a) through (m), and ) in an aggregate amount not to exceed $250,000 at any time outstanding; and (o) of this Section 2.5) (after giving effect Indebtedness pursuant to the incurrence New Senior Notes and application of proceeds of such Permitted Refinancing (2) using an interest rate equal to the weighted average interest rate of all such Senior Debt outstanding after giving effect to the incurrence guarantees thereof by Subsidiaries and Refinancing Indebtedness in respect of the Permitted Refinancing Indebtedness and the application of the proceeds therefrom);foregoing.

Restrictions on Indebtedness. The Borrower shall will not, and will not directly or indirectly permit any of its Subsidiaries to, create, incur, issue, assume, permit, suffer to exist guarantee or otherwise be or become liable with respect toremain liable, contingently or otherwise (collectivelyotherwise, “incur”), with respect to any Indebtedness; provided, however, that the Borrower may incur any of the following items of IndebtednessIndebtedness other than: (a) Indebtedness existing to the Lender arising under the Initial Senior Bond Indentures in an amount not to exceed the amount of Indebtedness outstanding under the Initial Senior Bond Indentures as any of the date of the Fifth Omnibus AmendmentLoan Documents; (b) Permitted Refinancing Indebtedness endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the Borrower in exchange for, or the net proceeds ordinary course of which are used to renew, refund, refinance, replace, defease or discharge any Indebtedness (other than intercompany Indebtedness) that was permitted to be incurred under clause (a), (b) or business; (c) Indebtedness in respect of this Section 2.5, provided that each Hedging Agreements so long as such arrangements are in the ordinary course of the following conditions shall have been satisfied:business and are not for speculative purposes; and (1d) Indebtedness existing on the Senior Facility Agent shall have received date hereof and listed and described on Schedule 9.1 hereto; (e) Indebtedness of or owed to the Borrower or a certificate from an Authorized Officer Subsidiary of the Borrower to or by a Subsidiary of the effect Borrower or the Borrower, excluding for purposes of this clause (e) any Indebtedness of a New Domestic Subsidiary that is not a Special Material Subsidiary that is incurred or created after the date of its formation or acquisition; (f) any extension, renewal, refunding, refinancing or replacement of the Indebtedness permitted under clause (d) above, provided that the aggregate principal amount of such replacement Indebtedness shall not exceed the outstanding Senior Debt principal amount of the Indebtedness existing on the date of such refinancing and the terms governing the Indebtedness incurred in connection with any such extension, renewal, refunding, refinancing or replacement thereof shall be no more restrictive in any material respect than the corresponding terms governing such Indebtedness as in effect on the Closing Date; (g) guarantees by the Borrower or any of its Subsidiaries of Indebtedness otherwise permitted under this §9.1; (h) Indebtedness with respect to surety bonds, performance bonds, bid bonds and similar performance related obligations, in each case entered into in the ordinary course of business and consistent with past practices; and (i) Indebtedness other than Working Capital Debt and Indebtedness incurred pursuant referred to clauses in subsections (f), (g), (h), (i), (j), (k), (l), (m), and (oa)-(h) above not exceeding the aggregate amount of this Section 2.5) (after giving effect to $30,000,000 at any time outstanding; provided that at the time of each incurrence and application of proceeds of such Permitted Refinancing (2) using an interest rate equal to Indebtedness the weighted average interest rate of all such Senior Debt outstanding Borrower shall be in compliance with its financial covenants set forth in Article 10 on a pro forma basis both before and after giving effect to the incurrence of the Permitted Refinancing Indebtedness and the application of the proceeds therefrom);such Indebtedness.

Restrictions on Indebtedness. The Borrower shall Borrowers will not, and will not directly or indirectly permit any of their Restricted Subsidiaries to, create, incur, issue, assume, permit, suffer to exist guarantee or otherwise be or become liable with respect toremain liable, contingently or otherwise (collectivelyotherwise, “incur”), with respect to any Indebtedness; provided, however, that the Borrower may incur any of the following items of IndebtednessIndebtedness other than: (a) Indebtedness existing to the Lenders, the Issuing Lender and each Agent arising under the Initial Senior Bond Indentures in an amount not to exceed the amount of Indebtedness outstanding under the Initial Senior Bond Indentures as any of the date of the Fifth Omnibus AmendmentLoan Documents; (b) Permitted Refinancing Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §9.8; (c) Indebtedness in respect of judgments or awards that have been in force for less than the applicable period for taking an appeal so long as execution is not levied thereunder or in respect of which any Borrower or any of its Restricted Subsidiaries shall at the time in good faith be prosecuting an appeal or proceedings for review and in respect of which a stay of execution shall have been obtained pending such appeal or review; (d) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business; (e) Indebtedness of any of the Borrowers or any of their Restricted Subsidiaries to any of the Borrowers or any of their other Restricted Subsidiaries consisting of rights of reimbursement, contribution, subrogation and the like in connection with the joint and several obligations of the Borrowers and their Restricted Subsidiaries under the Loan Documents; (f) Indebtedness incurred (other than under this Credit Agreement) or assumed in connection with the acquisition after the date hereof of any real or personal property by the Borrowers or their Restricted Subsidiaries (including Indebtedness in respect of Capitalized Leases), provided that the aggregate principal amount of such Indebtedness of (i) the Domestic Borrowers and the other U.S. Loan Parties shall not exceed the amount of $60,000,000 at any one time, (ii) the Canadian Borrower and the Canadian Restricted Subsidiaries shall not exceed the aggregate amount of $15,000,000 at any one time, (iii) the European Borrower and the European Restricted Subsidiaries shall not exceed the amount of $10,000,000 at any one time, and (iv) the Australian Borrower and the Australian Restricted Subsidiaries shall not exceed the aggregate amount of $20,000,000 at any one time; (g) Indebtedness existing on the Closing Date and listed and described on Schedule 10.1 hereto including any extensions or refinancings thereof on substantially similar terms as the Indebtedness being refinanced and provided there is no increase in the amount thereof; (h) Indebtedness of any Loan Party to any other Loan Party, provided that the aggregate amount of any Indebtedness from any Foreign Loan Party to any U.S. Loan Party (other than Indebtedness permitted pursuant to §10.1(o)), together with, without duplication, Investments in accordance with §10.3(i), shall not exceed the sum of (i) 10% of the Consolidated Total Tangible Assets of GWI and its Subsidiaries plus (ii) the Available Amount Not Otherwise Applied; (i) Indebtedness of the Borrower Borrowers with respect to Hedging Agreements entered into in exchange forthe ordinary course of business and not for speculative purposes; provided that such Hedging Agreements are not in respect of credit default swap derivatives or equity derivatives; (j) Indebtedness in respect of performance, surety, statutory, insurance, appeal or similar bonds obtained in the net proceeds ordinary course of which are used business; (k) Indebtedness of the Borrowers or any of their Restricted Subsidiaries in respect of guaranties of obligations in connection with Permitted Acquisitions and other Investments permitted by §10.3(i) and for the operation of any of their Restricted Subsidiaries (in each case, to renewthe extent the underlying Indebtedness with respect thereto is otherwise permitted under this §10.1), refundnot to exceed $40,000,000 in the aggregate for all such Indebtedness permitted at any time; (l) unsecured Indebtedness of GWI (including Indebtedness in respect of term loans, refinancepublic debt offerings and private placements), replacein an aggregate outstanding principal amount not to exceed $300,000,000 at any one time, defease or discharge plus, to the extent any Indebtedness in respect of the Senior Notes listed on Schedule 10.1 is repaid, but not otherwise extended or refinanced in accordance with §10.1(g), an amount equal to the aggregate amount of such Indebtedness repaid; provided that such Indebtedness shall not have (x) maturity dates prior to the Maturity Date (other than intercompany Indebtedness) that was permitted to be incurred Indebtedness under this clause (a), l) in an aggregate amount not to exceed $100,000,000) nor (by) covenants or events of default more restrictive than those in this Credit Agreement; (cm) other Indebtedness not included in the foregoing provisions of this Section 2.5, §10.1 not to exceed $75,000,000 in the aggregate at any time outstanding; (n) Indebtedness of any Loan Party to any Non-Guarantor Subsidiary; provided that each of all such Indebtedness (i) does not exceed $50,000,000 in the following conditions aggregate at any time outstanding and (ii) shall have been satisfied: (1) the Senior Facility Agent shall have received a certificate from an Authorized Officer of the Borrower be subordinated to the effect Obligations such that no payments or demands in respect of such Indebtedness shall be made to the outstanding Senior Debt (other than Working Capital Debt and Indebtedness incurred pursuant to clauses (f), (g), (h), (i), (j), (k), (l), (m), and extent an Event of Default exists or would result therefrom; (o) Indebtedness of this Section 2.5) (after giving effect the European Borrower to the incurrence and application of proceeds of such Permitted RefinancingGWI in an aggregate outstanding amount not to exceed $8,500,000; (2p) using an interest rate equal to obligations among the weighted average interest rate of all such Senior Debt outstanding after giving effect to the incurrence members of the Permitted Refinancing Australian Consolidated Group under the Australian Tax Sharing Agreement; and (q) Indebtedness and of GWA (North) in favor of AustralAsia due in the application of the proceeds therefrom);year 2054 in an aggregate accreted principal amount not to exceed AUD50,000,000 at any time.

Restrictions on Indebtedness. The Borrower shall not directly or indirectly createwill not, nor will it permit any Subsidiary of the Borrower to, issue, incur, issue, assume, permitcreate, suffer to exist or otherwise be or become liable with respect tofor, contingently or otherwise (collectivelyotherwise, “incur”), or have outstanding any Indebtedness; provided, however, that the Borrower may incur any of foregoing provisions shall not restrict nor operate to prevent the following items of Indebtedness: (a) Indebtedness existing under the Initial Senior Bond Indentures in an amount not to exceed the amount of Indebtedness outstanding under the Initial Senior Bond Indentures as of the date of the Fifth Omnibus AmendmentObligations; (b) Permitted Refinancing Non-Recourse Indebtedness of any Project Finance Subsidiary; (c) so long as the Borrower would be in compliance with Section 7.17 hereof (calculated as of the date of, and after giving affect to, the incurrence of such Indebtedness), secured Indebtedness (excluding Indebtedness of the type described in (e) below but including the pledge of stock or similar equity interest of any Project Finance Subsidiary or any Subsidiary which is an entity whose sole purpose and extent of business activities is to own the stock or similar equity interest of such Project Finance Subsidiary) (A) set forth on Schedule 7.15(c) hereto, (B)(i) of BHP or CLF&P, (ii) evidencing the deferred purchase price of newly acquired property or incurred to finance the acquisition of personal property of the Borrower or a Subsidiary of the Borrower used in exchange forthe ordinary course of business of the Borrower or Subsidiary, (iii) constituting Capitalized Lease Obligations or with respect to synthetic (or similar type) lease arrangements, or (iv) incurred in connection with the net proceeds performance of which are used to renewtenders, refundstatutory obligations, refinancebids, replace, defease leases or discharge any Indebtedness other similar obligations (other than intercompany Indebtednessfor borrowed money) entered into in the ordinary course of business or to secure obligations on performance bonds; provided, that was the aggregate amount of Indebtedness permitted to be incurred under by clause (a), (b) or (cB)(iv) of this Section 2.57.15(c) at any time outstanding shall not exceed 5% of Consolidated Assets as reflected on the most recent balance sheet delivered by the Borrower pursuant to Section 7.6 hereof and (C) constituting first mortgage bond debt which is issued or incurred by Black Hills Utility Holdings, Inc. or any of its direct or indirect Subsidiaries to finance the design, permitting, construction, ownership, operation or maintenance of utility properties which does not mature prior to the Termination Date, as extended from time to time in accordance with the terms hereof, and is not in excess of an amount equal to fifty percent (50%) of the net book value of the property, plant and equipment of Black Hills Utility Holdings, Inc. (as reported in the most recent quarterly financial statements which were prepared in accordance with GAAP); provided, the Borrower shall promptly provide the Administrative Agent with a copy of any documentation evidencing such Indebtedness in excess of $25,000,000 and any modification to such Indebtedness; (d) so long as the Borrower would be in compliance with Section 7.17 hereof (calculated as of the date of, and after giving affect to, the incurrence of such Indebtedness), other Indebtedness (excluding Indebtedness of the type described in (e) below) which is unsecured and either junior in right of payment to the Obligations or pari passu to the Obligations or is equally and ratably secured with the Obligations, provided that each the Borrower shall promptly provide the Administrative Agent with a copy of the following conditions shall have been satisfied:any documentation evidencing such Indebtedness in excess of $25,000,000 and any modification to such Indebtedness; (1e) the Senior Facility Agent shall have received a certificate intercompany loans (i) from an Authorized Officer (x) any Subsidiary of the Borrower to the effect that Borrower so long as such loans are subordinated to the outstanding Senior Debt Obligations on terms reasonably satisfactory to the Administrative Agent, and (other than Working Capital Debt y) the Borrower to a Subsidiary of the Borrower and (ii) among Wholly-Owned Subsidiaries; (f) [Reserved]; (g) [Reserved]; (h) Permitted Derivative Obligations; and (i) Indebtedness incurred pursuant to clauses Long-Term Guaranties. Indebtedness shall only be permitted under (fd), (ge), (h), and (i) above to the extent such Indebtedness will have a priority of payment with the Obligations which is no greater than pari passu (and with respect to clause (e), (j), (k), (l), (m), and (o) of this Section 2.5) (after giving effect to the incurrence and application of proceeds of extent such Permitted Refinancing (2) using an interest rate equal Indebtedness is subordinated to the weighted average interest rate of all Obligations as set forth in such Senior Debt outstanding after giving effect to the incurrence of the Permitted Refinancing Indebtedness and the application of the proceeds therefromclause);.

Restrictions on Indebtedness. The Borrower shall Loan Parties will not directly or indirectly create, incur, issue, assume, permit, suffer to exist guarantee or otherwise be or become liable with respect toremain liable, contingently or otherwise otherwise, with respect to any Indebtedness other than: (collectively, “incur”), any Indebtedness; provided, however, that the Borrower may incur i) (x) Indebtedness to Lenders arising under any of the following items Loan Documents, (y) Hedge Obligations to a Lender Hedge Provider, and (z) Indebtedness to any counterparty other than a Lender Hedge Provider with respect to any Derivatives ContractsContract made in the ordinary course of Indebtedness:business (and not for speculative purposes); (ii) current liabilities incurred in the ordinary course of business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services; (iii) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of §7.8; (iv) Indebtedness in respect of judgments only to the extent, for the period and for an amount not resulting in an Event of Default; (v) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business; (vi) Indebtedness incurred to any other landowners, government or quasi- government or entity or similar entity in the ordinary course of business in connection with the construction or NYDOCS03/1106944.11106944.3 development of any Real Estate, including, without limitation, subdivision improvement agreements, development agreements, reimbursement agreements, infrastructure development agreements, agreements to construct or pay for on-site or off-site improvements and similar agreements incurred in the ordinary course of business in connection with the development of Real Estate or construction of infrastructure in connection therewith; and (vii) (a) Secured Recourse Indebtedness existing under of Parent Borrower, Parent Guarantor, or IR OpCo as and to the Initial Senior Bond Indentures extent not prohibited (and subject to the limitations set forth) in §9.6 and (b) Unsecured Recourse Indebtedness of the Loan Parties as and to the extent not prohibited (and subject to the limitations set forth) in §9.9; (viii) (a) the Indebtedness set forth on Schedule 8.1 hereto, and any Permitted Refinancing Indebtedness in respect of any such Indebtedness, (b) Indebtedness (including Capitalized Leases) financing the acquisition or replacement of equipment and, limited as to each of the Subsidiary Borrowers, to $25,000.00 per fiscal year, and (c) intercompany Indebtedness of the Loan Parties outstanding from time to time; provided that all such intercompany Indebtedness of any Loan Party owed to any Subsidiary of Parent Guarantor that is not a Loan Party shall be subordinated to the Obligations pursuant to an Intercompany Note; (ix) Non-Recourse Indebtedness entered into in the ordinary course of business of the Loan Parties (other than a Subsidiary Borrower) (including, without limitation, any Indebtedness referred to in the proviso to the definition of Secured Recourse Indebtedness); (x) [Reserved]; (xi) Recourse Indebtedness consisting of the Non-Recourse Exclusions in respect of Non-Recourse Indebtedness permitted to be incurred pursuant to §8.2(ix); (xii) subject to the provisions of §9.69.5, Indebtedness of the Loan Parties (other than a Subsidiary Borrower) in an amount not to exceed $100,000.00 in the amount of Indebtedness outstanding under the Initial Senior Bond Indentures as of the date of the Fifth Omnibus Amendment; (b) aggregate assumed in connection with an Investment not prohibited by this Agreement and any Permitted Refinancing Indebtedness of the Borrower incurred, issued or otherwise obtained to Refinance (in exchange for, whole or the net proceeds of which are used to renew, refund, refinance, replace, defease or discharge any Indebtedness (other than intercompany in part) such Indebtedness) that was permitted to be incurred under clause (a); provided that, (bA) or (c) of this Section 2.5, provided that each of the following conditions shall have been satisfied: (1) the Senior Facility Agent shall have received a certificate from an Authorized Officer of the Borrower to the effect that the outstanding Senior Debt (other than Working Capital Debt and Indebtedness incurred pursuant to clauses (f), (g), (h), (i), (j), (k), (l), (m), and (o) of this Section 2.5) (immediately after giving effect to such Indebtedness, no Event of Default exists or is continuing or would result therefrom, and (B) such Indebtedness is and remains solely the incurrence obligation of the Person and/or such Person’s subsidiaries that are acquired and application of proceeds such Indebtedness was not incurred in anticipation of such Permitted RefinancingInvestment; (2a) using an interest rate equal Indebtedness in respect of any bankers’ acceptance, bank guarantees, letters of credit, warehouse receipt or similar facilities entered into in the ordinary course of business (including in respect of workers’ compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers’ compensation claims) and (b) Indebtedness represented by letters of credit, to the weighted average interest rate extent such letters of all such Senior Debt outstanding after giving effect to the incurrence of the Permitted Refinancing credit support Indebtedness and the application of the proceeds therefromotherwise permitted under this §8.1(xiii); (xiv) Indebtedness arising from agreements providing for deferred compensation, indemnification, adjustments of purchase price (including “earnouts”) or similar obligations, in each case entered into in connection with any Investments not prohibited by this Agreement; (xv) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds, performance and completion guarantees and similar obligations incurred in the ordinary course of business and not in connection with the borrowing of money; (xvi) Indebtedness consisting of obligations to pay insurance premiums arising in the ordinary course of business and not in connection with the borrowing of money; NYDOCS03/1106944.11106944.3 (xvii) Indebtedness representing deferred compensation to employees, consultants or independent contractors of, Parent Guarantor and its Subsidiaries incurred in the ordinary course of business or in connection with any Investments not prohibited by this Agreement; (xviii) obligations, under cash management agreements, cash management services and other Indebtedness in respect of netting services, automatic clearing house arrangements, employees’ credit or purchase cards, overdraft protections and similar arrangements in each case incurred in the ordinary course of business; (xix) Indebtedness comprising take or pay obligations contained in supply agreements entered into the ordinary course of business; and (xx) all customary premiums (if any), interest (including post-petition and capitalized interest), fees, expenses, charges and additional or contingent interest on obligations described in each of §8.1(i) through §8.1(xix) above.

Restrictions on Indebtedness. The No Borrower shall not directly or indirectly create, incur, issue, assume, permit, assume or suffer to exist or otherwise be or become liable with respect to, contingently or otherwise (collectively, “incur”), any Indebtedness; provided, however, that the Borrower may incur any of the following items of IndebtednessIndebtedness other than: (a) Indebtedness existing under on the Initial Senior Bond Indentures in an Closing Date and set forth on Schedule 7.01, including any renewals, extensions, refinancings and replacements thereof so long as the principal amount not to exceed thereof (plus all accrued interest on such Indebtedness and the amount of Indebtedness outstanding under all fees and expenses, including premiums, incurred in connection therewith, the Initial Senior Bond Indentures as amount of which may be included in the date principal amount of the Fifth Omnibus Amendmentany refinancing) is not increased; (b) Permitted Refinancing incurrence of guaranty, suretyship or indemnification obligations in connection with the Borrowers’ performance of services for their respective customers in the ordinary course of their businesses; (c) Indebtedness of one Borrower to another Borrower; (d) Indebtedness of the Borrower Borrowers incurred in exchange forconnection with the acquisition or lease of any equipment or other property by the Borrowers under any Synthetic Lease, Capital Lease or other lease arrangement or purchase money financing; (e) Indebtedness of the net proceeds Borrowers with respect to bonds for closure and post-closure obligations relating to any landfill owned or operated by the Borrowers; (f) Indebtedness of which the Borrowers in respect of Swap Contracts (including Fuel Derivatives Obligations) entered into in the ordinary course of business and not for speculative purposes; (g) Indebtedness of the Borrowers with respect to letters of credit of Persons acquired by the Borrowers; provided, that such letters of credit shall be retired immediately or replaced by Letters of Credit under this Agreement as soon as possible but in any event not later than one hundred twenty (120) days after the closing of any such acquisition; (h) Indebtedness of the Borrowers in respect of IRBs; provided, that (a) such Indebtedness may be secured only to the extent such IRBs are used L/C Supported IRBs and (b) after taking into account all Indebtedness incurred pursuant to renewthis clause (h), refundthe Borrowers on a consolidated basis shall be in pro forma compliance with each of the financial covenants set forth in Section 7.14 (using Consolidated EBITDA of the Consolidated Group as of the last day of the applicable Pro Forma Reference Period (but including any addbacks to Consolidated EBITDA previously approved in the period following the last day of the applicable Pro Forma Reference Period) and Consolidated Total Funded Debt as of the date of, refinanceand after giving effect to, replace, defease or discharge any such Indebtedness (with such amounts adjusted as if such Indebtedness was incurred on the first day of the applicable Pro Forma Reference Period)). (i) other secured Indebtedness (other than intercompany Indebtedness) that was as permitted to be incurred under clause (aother subsections hereof), not in excess of $20,000,000 in the aggregate at any time outstanding; and (bj) or (c) other unsecured Indebtedness; provided, that, at the time of this Section 2.5incurrence thereof, provided that the Borrowers shall be in pro forma compliance with each of the following conditions shall have been satisfied: financial covenants set forth in Section 7.14 (1) the Senior Facility Agent shall have received a certificate from an Authorized Officer using Consolidated EBITDA of the Borrower Consolidated Group as of the last day of the applicable Pro Forma Reference Period (but including any addbacks to Consolidated EBITDA previously approved in the effect that period following the outstanding Senior last day of the applicable Pro Forma Reference Period) and Consolidated Total Funded Debt (other than Working Capital Debt and Indebtedness incurred pursuant to clauses (f), (g), (h), (i), (j), (k), (l), (m)as of the date of, and (o) of this Section 2.5) (after giving effect to to, such Indebtedness (with such amounts adjusted as if such Indebtedness was incurred on the incurrence and application of proceeds of such Permitted Refinancing (2) using an interest rate equal to the weighted average interest rate of all such Senior Debt outstanding after giving effect to the incurrence first day of the Permitted Refinancing Indebtedness and the application of the proceeds therefromapplicable Pro Forma Reference Period);).

Restrictions on Indebtedness. The Borrower shall Borrowers will not, and will not directly or indirectly permit any of their Subsidiaries to, create, incur, issue, assume, permitguarantee, suffer to exist or otherwise be or become liable remain liable, contingently or otherwise, with respect to, contingently or otherwise (collectively, “incur”), any Indebtedness; provided, however, that the Borrower may incur any of the following items of IndebtednessIndebtedness other than: (a) Indebtedness existing to the Lenders and the Administrative Agent arising under the Initial Senior Bond Indentures in an amount not to exceed the amount of Indebtedness outstanding under the Initial Senior Bond Indentures as any of the date of the Fifth Omnibus AmendmentLoan Documents; (b) Permitted Refinancing Indebtedness current liabilities of any of the Borrower Borrowers or their Subsidiaries incurred in exchange forthe ordinary course of business not incurred through (i) the borrowing of money, or (ii) the net proceeds obtaining of which are used to renew, refund, refinance, replace, defease or discharge any Indebtedness (other than intercompany Indebtedness) that was permitted to be incurred under clause (a), (b) or credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services; (c) Indebtedness in respect of this taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of Section 2.5, provided 9.8; (d) Indebtedness in respect of judgments or awards that each have been in force for less than the applicable period for taking an appeal so long as execution is not levied thereunder or in respect of which any of the following conditions Borrowers or Subsidiary shall at the time in good faith be prosecuting an appeal or proceedings for review and in respect of which a stay of execution shall have been satisfied:obtained pending such appeal or review; (1e) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business; (f) Subordinated Debt not exceeding $150,000,000 in aggregate principal amount at any I time outstanding; (g) obligations under Capitalized Leases not exceeding $8,000,000 in aggregate amount at any time outstanding; (h) Indebtedness incurred in connection with (i) the Senior Facility Agent shall have received a certificate from an Authorized Officer acquisition after the Closing Date of any real or personal property by any of the Borrower to Borrowers or their Subsidiaries, and (ii) the effect issuance by any of the Borrowers or their Subsidiaries of any industrial revenue bonds, industrial development bonds or similar instruments, PROVIDED that the outstanding Senior Debt (other than Working Capital Debt aggregate principal amount of Indebtedness of TransTechnology and Indebtedness its Subsidiaries incurred pursuant to clauses (f), (g), this clause (h), ) shall not exceed the aggregate amount of $10,000,000 at any one time; (i), ) Indebtedness existing on the date hereof and listed and described on SCHEDULE 10.1 hereto; and (j), (k), (l), (m)) Indebtedness of any Subsidiary of TransTechnology to TransTechnology; PROVIDED that such Indebtedness shall be evidenced by promissory notes duly executed by the obligor, and (o) of this Section 2.5) (after giving effect all such intercompany notes shall be pledged and delivered to the incurrence Administrative Agent and application of proceeds of such Permitted Refinancing (2) using an interest rate equal be in form and substance satisfactory to the weighted average interest rate of all such Senior Debt outstanding after giving effect to the incurrence of the Permitted Refinancing Indebtedness and the application of the proceeds therefrom);Administrative Agent.

Restrictions on Indebtedness. The Borrower shall will not, and will not directly permit any Guarantor or indirectly their respective Subsidiaries to, create, incur, issue, assume, permit, suffer to exist guarantee or otherwise be or become liable with respect toremain liable, contingently or otherwise (collectivelyotherwise, “incur”), with respect to any Indebtedness; provided, however, that the Borrower may incur any of the following items of IndebtednessIndebtedness other than: (a) Indebtedness existing to the Lenders arising under the Initial Senior Bond Indentures in an amount not to exceed the amount of Indebtedness outstanding under the Initial Senior Bond Indentures as any of the date of the Fifth Omnibus AmendmentLoan Documents; (b) Permitted Refinancing [intentionally omitted]; (c) current liabilities of the Borrower, the Guarantors or their respective Subsidiaries incurred in the ordinary course of business but not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services; (d) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies; (e) Indebtedness in respect of judgments only to the extent, for the period and for an amount not resulting in a Default; (f) Endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business; (g) subject to compliance with the financial covenants set forth in §9 of this Agreement and the terms, conditions, and provisions of this §8.1, Non-Recourse Indebtedness; and (h) Borrower covenants and agrees that, so long as any Loan or Note is outstanding or any Lender has any obligation to make any Loans, Borrower shall not be permitted to incur or be or remain liable under, contingently or otherwise, with respect to any other Indebtedness, including, without limitation, any (i) Unsecured Indebtedness, (ii) Recourse Indebtedness secured by Equity Interests or rights to Distributions (so-called “mezzanine financing”) or other property or assets of Borrower or its Subsidiaries, and/or (iii) structurally subordinated Indebtedness. Notwithstanding anything in this Agreement to the contrary, (i) none of the Indebtedness described in §8.1(g) or §8.1(h) above shall have any of the Borrowing Base Properties or any interest therein or any direct or indirect ownership interest in the Borrower or any Subsidiary Guarantor, or any rights to Distributions on account of such direct or indirect ownership interest, as collateral, a borrowing base, asset pool or any similar form of credit support for such Indebtedness, (ii) none of the Subsidiary Guarantors which own a Borrowing Base Property shall create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to any Indebtedness (including, without limitation, pursuant to any conditional or limited guaranty or indemnity agreement creating liability with respect to usual and customary exclusions from the non-recourse limitations governing the Non-Recourse Indebtedness of the Borrower in exchange forany Person, or otherwise) other than Indebtedness described in §§8.1(a), 8.1(b), 8.1(c), 8.1(d), 8.1(e) and 8.1(f), and (iii) except as expressly provided in §8.1(h), none of the net proceeds Borrower, the Guarantors or any of which are used their Subsidiaries shall create, incur, assume, guarantee or be or remain liable, contingently or otherwise, with respect to renewany Unsecured Indebtedness, refundany Recourse Indebtedness (other than the Obligations), refinance, replace, defease or discharge any Indebtedness (other than intercompany Indebtednessthe Obligations) that was permitted secured by Equity Interests or rights to be incurred under clause Distributions (aso-called “mezzanine financing”), (b) structurally subordinated Indebtedness or (c) of this Section 2.5second priority Liens, provided that each of the following conditions shall have been satisfied: (1) the Senior Facility Agent shall have received a certificate from an Authorized Officer of the Borrower to the effect that the outstanding Senior Debt or any revolving credit facilities (other than Working Capital Debt and Indebtedness incurred pursuant to clauses (fthis Agreement), (g), (h), (i), (j), (k), (l), (m), and (o) of this Section 2.5) (after giving effect to the incurrence and application of proceeds of such Permitted Refinancing (2) using an interest rate equal to the weighted average interest rate of all such Senior Debt outstanding after giving effect to the incurrence of the Permitted Refinancing Indebtedness and the application of the proceeds therefrom);.

Restrictions on Indebtedness. The Borrower shall will not, and will not directly or indirectly permit any of its Subsidiaries to, create, incur, issue, assume, permit, suffer to exist guarantee or otherwise be or become liable with respect toremain liable, contingently or otherwise (collectivelyotherwise, “incur”), with respect to any Indebtedness; provided, however, that the Borrower may incur any of the following items of IndebtednessIndebtedness other than: (a) Indebtedness existing to the Banks and the Agents arising under the Initial Senior Bond Indentures in an amount not to exceed the amount of Indebtedness outstanding under the Initial Senior Bond Indentures as any of the date of the Fifth Omnibus AmendmentLoan Documents; (b) Permitted Refinancing current liabilities of the Borrower or such Subsidiary incurred in the ordinary course of business not incurred through (i) the borrowing of money, or (ii) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services; (c) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of Section 8.8; (d) Indebtedness in respect of judgments or awards that have been in force for less than the applicable period for taking an appeal so long as execution is not levied thereunder or in respect of which the Borrower or such Subsidiary shall at the time in good faith be prosecuting an appeal or proceedings for review and in respect of which a stay of execution shall have been obtained pending such appeal or review; (e) endorsements for collection, deposit or negotiation and warranties of products or services, in each case incurred in the ordinary course of business; (f) Indebtedness existing on the date hereof and listed and described on Schedule 9.1 hereto; (g) Indebtedness owed by the Borrower or any of its Subsidiaries to trade vendors, in the amount of the cost to the Borrower or such Subsidiary of inventory held on consignment from such trade vendors; and (h) Indebtedness of the Borrower in exchange for, or the net proceeds of which are used to renew, refund, refinance, replace, defease or discharge any Indebtedness (and its Subsidiaries other than intercompany Indebtedness) that was permitted to be incurred under clause (a), (b) or (c) of elsewhere in this Section 2.5, 9.1 in an aggregate principal amount not to exceed $2,000,000 at any time outstanding; provided that each of the following conditions shall have been satisfied: (1i) the Senior Facility Agent shall have received a certificate Net Proceeds from an Authorized Officer of the Borrower to the effect that the outstanding Senior Debt (other than Working Capital Debt and such Indebtedness incurred pursuant to clauses (f), (g), (h), (i), (j), (k), (l), (m), are applied in accordance with Section 5.8 hereof and (oii) no Default or Event of this Section 2.5) (Default has occurred and is continuing at the time such Indebtedness is incurred and none would exist after giving effect thereto; provided, however, the Borrower will not, and will not permit any of its Subsidiaries to, engage in any form of "off balance sheet" financing, including, without limitation, the lease of any assets by the Borrower or any of its Subsidiaries as lessee under any synthetic lease referred to the incurrence and application of proceeds of such Permitted Refinancing in clause (2vi) using an interest rate equal to the weighted average interest rate of all such Senior Debt outstanding after giving effect to the incurrence of the Permitted Refinancing Indebtedness and the application above definition of the proceeds therefrom);term "Indebtedness."