BUSINESS AND SUBSTANTIALLY CONSISTENT WITH PAST PRACTICE FOR TERMS NOT EXCEEDING
FIVE YEARS;
THE LEASE OR LICENSE OF REAL OR PERSONAL PROPERTY BY THE BORROWER AND ITS
SUBSIDIARIES IN THE ORDINARY COURSE OF BUSINESS;
DISPOSITIONS BY THE BORROWER AND ITS SUBSIDIARIES CONSISTING OF LEASES AND
SUBLEASES OF REAL PROPERTY SOLELY TO THE EXTENT THAT SUCH REAL PROPERTY IS NOT
NECESSARY FOR THE NORMAL CONDUCT OF OPERATIONS OF THE BORROWER AND ITS
SUBSIDIARIES;
OTHER DISPOSITIONS OF PROPERTY BY THE BORROWER AND ITS SUBSIDIARIES IN THE
ORDINARY COURSE OF BUSINESS OR AS OTHERWISE PERMITTED BY THE REQUIRED LENDERS;
PROVIDED THAT THE NET CASH PROCEEDS FROM EACH SUCH DISPOSITION SHALL BE APPLIED
TO THE MANDATORY PREPAYMENT OF THE LOANS IN ACCORDANCE WITH SECTION 2.05(C);
provided, however, that any Disposition pursuant to clauses (a) through (i)
shall be for fair market value.
Restricted Payments.
Declare or make, directly or indirectly, any Restricted
Payment, or incur any obligation (contingent or otherwise) to do so, except that
as long as no Default or Event of Default is continuing or would result
therefrom:
THE BORROWER OR ANY SUBSIDIARY MAY MAKE RESTRICTED PAYMENTS (INCLUDING, WITHOUT
LIMITATION, REQUIRED JOINT VENTURE DISTRIBUTIONS) TO THE BORROWER AND TO
WHOLLY-OWNED SUBSIDIARIES (AND, IN THE CASE OF A RESTRICTED PAYMENT BY A
NON-WHOLLY-OWNED SUBSIDIARY, TO THE BORROWER AND ANY SUBSIDIARY AND TO EACH
OTHER OWNER OF CAPITAL STOCK OR OTHER EQUITY INTERESTS OF SUCH SUBSIDIARY ON A
PRO RATA BASIS BASED ON THEIR RELATIVE OWNERSHIP INTERESTS);
THE BORROWER AND EACH SUBSIDIARY MAY DECLARE AND MAKE DIVIDEND PAYMENTS OR OTHER
DISTRIBUTIONS PAYABLE SOLELY IN THE COMMON STOCK OR OTHER COMMON EQUITY
INTERESTS OF SUCH PERSON;
THE BORROWER AND EACH SUBSIDIARY MAY PURCHASE, REDEEM OR OTHERWISE ACQUIRE
SHARES OF ITS COMMON STOCK OR OTHER COMMON EQUITY INTERESTS OR WARRANTS OR
OPTIONS TO ACQUIRE ANY SUCH
68
SHARES WITH THE PROCEEDS RECEIVED FROM THE SUBSTANTIALLY CONCURRENT ISSUE OF NEW
SHARES OF ITS COMMON STOCK OR OTHER COMMON EQUITY INTERESTS;
SO LONG AS HOLDINGS REMAINS A LIMITED LIABILITY COMPANY, HOLDINGS MAY PAY CASH
DISTRIBUTIONS (SUCH DISTRIBUTIONS, "TAX DISTRIBUTIONS") ON A QUARTERLY OR ANNUAL
BASIS, AS APPLICABLE, IN ANY FISCAL YEAR TO ITS MEMBERS IN AN AGGREGATE AMOUNT
IN ANY FISCAL YEAR EQUAL TO THE INCOME TAX PAYABLE BY SUCH MEMBERS FOR THE
IMMEDIATELY PRECEDING FISCAL YEAR AS REASONABLY DETERMINED BY HOLDINGS TO BE
ATTRIBUTABLE SOLELY TO THE INCOME OF HOLDINGS FOR THE FISCAL YEAR TO WHICH THE
TAX DISTRIBUTIONS RELATE;
(e)
the Borrower may make the Preferred Redemption in connection with
the Holdings Roll-Up, to the extent expressly permitted by Section 6.17
hereunder; and
(F)
THE BORROWER MAY REPURCHASE, REDEEM, OR OTHERWISE ACQUIRE OR
RETIRE FOR VALUE ANY SHARES OF ITS COMMON STOCK; PROVIDED THAT:
(i) any such repurchase shall be either (a) pursuant to, and in accordance with,
the terms of a common stock buyback program approved by the Board of Directors
of the Borrower (a copy of which shall be delivered to the Administrative
Agent), or (b) the repurchase, redemption or other acquisition or