Common use of Limitation on Restricted Payments Clause in Contracts

Limitation on Restricted Payments. (a) The Company will not, and will not permit any Restricted Subsidiary, directly or indirectly, to (i) declare or pay any dividend or make any distribution on or with respect to its Capital Stock (other than (x) dividends or distributions payable solely in shares of its Capital Stock (other than Disqualified Stock) or in options, warrants or other rights to acquire shares of such Capital Stock and (y) pro rata dividends or distributions on Common Stock of Restricted Subsidiaries held by minority stockholders, provided that such dividends do not in the aggregate exceed the minority stockholders' pro rata share of such Restricted Subsidiaries' net income from the first day of the fiscal quarter beginning immediately following the Closing Date) held by Persons other than the Company or any of its Restricted Subsidiaries, (ii) purchase, redeem, retire or otherwise acquire for value any shares of Capital Stock of the Company, any Subsidiary Guarantor or an Unrestricted Subsidiary (including options, warrants or other rights to acquire such shares of Capital Stock) held by Persons other than the Company and its Wholly Owned Subsidiaries, (iii) make any voluntary or optional principal payment, or voluntary or optional redemption, repurchase, defeasance, or other acquisition or retirement for value, of Indebtedness of the Company that is subordinated in right of payment to the Notes or of any Subsidiary Guarantor that is subordinated to the Subsidiary Guaranties (other than, in each case, the purchase, repurchase or the acquisition of Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in any case due within one year of the date of acquisition) or (iv) make any Investment, other than a Permitted Investment, in any Person (such payments or any other actions described in clauses (i) through (iv) being collectively "RESTRICTED PAYMENTS") if, at the time of, and after giving effect to, the proposed Restricted Payment: (A) an Event of Default shall have occurred and be continuing, (B) except with respect to Investments in Restricted Subsidiaries and dividends on the Common Stock of any Subsidiary Guarantor paid to the Company or any Restricted Subsidiary, the Company could not Incur at least $1.00 of Indebtedness under the first sentence of paragraph (a) of Section 4.03 or (C) the aggregate amount of all Restricted Payments (the amount, if other than in cash, to be determined in good faith by the Board of Directors, whose determination shall be conclusive and evidenced by a Board Resolution) made after the Closing Date (after giving pro forma effect to the proposed Restricted Payment) shall exceed the sum of (1) 50% of the aggregate amount of the Adjusted Consolidated Net Income (or, if the Adjusted Consolidated Net Income is a loss, minus 100% of the amount of such loss) (determined by excluding income resulting from transfers of assets by the Company or a Restricted Subsidiary to an Unrestricted Subsidiary) accrued on a cumulative basis during the period (taken as one accounting period) beginning on the first day of the fiscal quarter immediately following the Closing Date and ending on the last day of the last fiscal quarter preceding the Transaction Date for which reports have been filed pursuant to Section 4.18 plus (2) the aggregate amount of Designated Equity Proceeds received by the Company after the Closing Date, except to the extent such amount of Designated Equity Proceeds is used as a basis to Incur Indebtedness pursuant to clause (i) or (viii) of paragraph (a) under Section 4.03, plus (3) an amount equal to the net reduction in Investments (other than reductions in Permitted Investments) in any Person resulting from payments of interest on Indebtedness, dividends, repayments of loans or advances, or other transfers of assets, in each case to the Company or any Restricted Subsidiary or from the Net Cash Proceeds from the sale of any such Investment (except, in each case, to the extent any such payment or proceeds are included in the calculation of Adjusted Consolidated Net Income), or from redesignations of Unrestricted Subsidiaries as Restricted Subsidiaries (valued in each case as provided in the definition of "Investments"), not to exceed, in each case, the amount of Investments previously made by the Company or any Restricted Subsidiary in such Person or Unrestricted Subsidiary.

Limitation on Restricted Payments. (a) The Company will not, and will not permit any Restricted SubsidiarySubsidiary to, directly or indirectly, to (i) declare or pay any dividend or make any distribution on or with respect to its Capital Stock (other than (x) dividends any respect or distributions payable solely in shares of its Capital Stock (other than Disqualified Stock) or in options, warrants or other rights to acquire shares of such Capital Stock and (y) pro rata dividends or distributions on Common Stock of Restricted Subsidiaries held by minority stockholders, provided that such dividends do not in the aggregate exceed the minority stockholders' pro rata share of such Restricted Subsidiaries' net income from the first day of the fiscal quarter beginning immediately following the Closing Date) held by Persons other than the Company or any of its Restricted Subsidiaries, (ii) purchase, redeem, retire or otherwise acquire for value any shares of Capital Stock of (A) the Company, any Subsidiary Guarantor Company or an Unrestricted Subsidiary (including options, warrants or other rights to acquire such shares of Capital Stock) held by Persons any Person or (B) a Restricted Subsidiary (including options, warrants or other rights to acquire such shares of Capital Stock) held by any Affiliate of the Company (other than the Company and its a Wholly Owned SubsidiariesRestricted Subsidiary) or any holder (or any Affiliate of such holder) of 5% or more of the Capital Stock of the Company, (iii) make any voluntary or optional principal payment, or voluntary or optional redemption, repurchase, defeasance, or other acquisition or retirement for value, of Indebtedness of the Company that is subordinated in right of to payment to the Notes or of any Subsidiary Guarantor that is subordinated to the Subsidiary Guaranties (other than, in each case, the purchase, repurchase or the acquisition of Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in any case due within one year of the date of acquisition) or (iv) make any Investment, other than a Permitted Investment, in any Person (such payments or any other actions described in clauses (i) through (iv) above being collectively "RESTRICTED PAYMENTSRestricted Payments") if, at the time of, and after giving effect to, the proposed Restricted Payment: (A) an a Default or Event of Default shall have occurred and be continuing, (B) except with respect to Investments in Restricted Subsidiaries and dividends on the Common Stock case of any Subsidiary Guarantor paid to the Company or any Restricted Subsidiaryan Investment, the Company could not Incur at least $1.00 of Indebtedness under the first sentence of paragraph (a) of Section 4.03 or (C) the aggregate amount of all Restricted Payments (the amount, if other than in cash, to be determined in good faith by the Board of Directors, whose determination shall be conclusive and evidenced by a Board Resolution; provided that Restricted Payments, to the extent made solely in Capital Stock other than Disqualified Stock, shall for purposes of this clause (C) be deemed to be in an amount equal to zero) made after the Closing Effective Date (after giving pro forma effect to the proposed Restricted Payment) shall exceed the sum of (1) 50% of the aggregate amount of the Adjusted Consolidated Net Income (or, if the Adjusted Consolidated Net Income is a loss, minus 100% of the amount of such loss) (determined by excluding income resulting from transfers of assets by the Company or a Restricted Subsidiary to an Unrestricted Subsidiary) accrued on a cumulative basis during the period (taken as one accounting period) beginning on the first day of the fiscal quarter immediately following the Closing Effective Date and ending on the last day of the last fiscal quarter preceding the Transaction Date for which reports have been filed with the Commission or provided to the Trustee pursuant to Section 4.18 plus (2) the aggregate amount of Designated Equity Net Cash Proceeds received by the Company after the Closing DateEffective Date from the issuance and sale permitted by this Indenture of its Capital Stock (other than Disqualified Stock) to a Person who is not a Subsidiary of the Company, except including an issuance or sale permitted by this Indenture of Indebtedness of the Company for cash subsequent to the extent Effective Date upon the conversion of such amount of Designated Equity Proceeds is used as a basis to Incur Indebtedness pursuant to clause indebtedness into Capital Stock (i) or (viiiother than Disqualified Stock) of paragraph the Company, or from the issuance to a Person who is not a Subsidiary of the Company of any options, warrants or other rights to acquire Capital Stock of the Company (ain each case, exclusive of any Disqualified Stock or any options, warrants or other rights that are redeemable at the option of the holder, or are required to be redeemed, prior to the Stated Maturity of the Notes) under Section 4.03, plus (3) an amount equal to the net reduction in outstanding Investments (other than reductions in outstanding Permitted Investments) in any Person resulting from payments of interest on Indebtedness, dividends, repayments of loans or advances, or other payments transfers of assets, in each case to the Company or any Restricted Subsidiary or from the Net Cash Proceeds from the sale of any such Investment (except, in each case, to the extent any such payment or proceeds are included in the calculation of Adjusted Consolidated Net Income), or from redesignations of Unrestricted Subsidiaries as Restricted Subsidiaries (valued in each case as provided in the definition of "Investments"), not to exceed, in each case, the amount of Investments previously made by the Company or any Restricted Subsidiary in such Person or Unrestricted SubsidiarySubsidiary plus (4) $2 million. The amount of any Investment "outstanding" at any time shall be deemed to be equal to the amount of such Investment on the date made, less the return of capital to the Company and its Restricted Subsidiaries with respect to such Investment (up to the amount of such Investment on the date made). Notwithstanding anything herein to the contrary, Investments made through the transfer of equipment shall be valued at the book value at the time of Investment with respect to such equipment.

Limitation on Restricted Payments. (a) The Company will Borrower shall not, and will shall not permit any Restricted Subsidiary, directly or indirectly, to (i) declare or pay any dividend or make any distribution on or with in respect to of its Capital Stock (other than including any such payment in connection with any merger or consolidation to which the Borrower is a party) except (x) dividends or distributions payable solely in shares of its Capital Stock (other than Disqualified Stock) or in options, warrants or other rights to acquire shares of such Capital Stock and (y) pro rata dividends or distributions on Common Stock of payable to the Borrower or any Restricted Subsidiaries held by minority stockholdersSubsidiary (and, provided that such dividends do not in the aggregate exceed the minority stockholders' case of any such Restricted Subsidiary making such dividend or distribution, to other holders of its Capital Stock on no more than a pro rata share of such Restricted Subsidiaries' net income from the first day of the fiscal quarter beginning immediately following the Closing Date) held basis, measured by Persons other than the Company or any of its Restricted Subsidiariesvalue), (ii) purchase, redeem, retire or otherwise acquire for value any shares of Capital Stock of the Company, any Subsidiary Guarantor or an Unrestricted Subsidiary (including options, warrants or other rights to acquire such shares of Capital Stock) Borrower held by Persons other than the Company and its Wholly Owned SubsidiariesBorrower or a Restricted Subsidiary (other than any acquisition of Capital Stock deemed to occur upon the exercise of options if such Capital Stock represents a portion of the exercise price thereof), (iii) make any voluntary or optional principal payment, or voluntary or optional redemptionvoluntarily purchase, repurchase, defeasanceredeem, defease or otherwise voluntarily acquire or retire for value, prior to scheduled maturity, scheduled repayment or scheduled sinking fund payment, any Junior Debt (other than a purchase, repurchase, redemption, defeasance or other acquisition or retirement for value, of Indebtedness of the Company that is subordinated in right of payment to the Notes or of any Subsidiary Guarantor that is subordinated to the Subsidiary Guaranties (other than, in each case, the purchase, repurchase or the acquisition of Indebtedness value in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in any each case due within one year of the date of acquisition) such purchase, repurchase, redemption, defeasance or other acquisition or retirement), or (iv) make any Investment, Investment (other than a Permitted Investment, ) in any Person (any such payments dividend, distribution, purchase, repurchase, redemption, defeasance, other acquisition or any other actions described in clauses (i) through (iv) retirement or Investment being collectively "RESTRICTED PAYMENTS") ifherein referred to as a “Restricted Payment”), if at the time of, the Borrower or such Restricted Subsidiary makes such Restricted Payment and after giving effect to, the proposed Restricted Payment: (A) an Event of Default shall have occurred and be continuing, (B) except with respect to Investments in Restricted Subsidiaries and dividends on the Common Stock of any Subsidiary Guarantor paid to the Company or any Restricted Subsidiary, the Company could not Incur at least $1.00 of Indebtedness under the first sentence of paragraph (a) of Section 4.03 or (C) the aggregate amount of all Restricted Payments (the amount, if other than in cash, to be determined in good faith by the Board of Directors, whose determination shall be conclusive and evidenced by a Board Resolution) made after the Closing Date (after giving pro forma effect to the proposed Restricted Payment) shall exceed the sum of (1) 50% of the aggregate amount of the Adjusted Consolidated Net Income (or, if the Adjusted Consolidated Net Income is a loss, minus 100% of the amount of such loss) (determined by excluding income resulting from transfers of assets by the Company or a Restricted Subsidiary to an Unrestricted Subsidiary) accrued on a cumulative basis during the period (taken as one accounting period) beginning on the first day of the fiscal quarter immediately following the Closing Date and ending on the last day of the last fiscal quarter preceding the Transaction Date for which reports have been filed pursuant to Section 4.18 plus (2) the aggregate amount of Designated Equity Proceeds received by the Company after the Closing Date, except to the extent such amount of Designated Equity Proceeds is used as a basis to Incur Indebtedness pursuant to clause (i) or (viii) of paragraph (a) under Section 4.03, plus (3) an amount equal to the net reduction in Investments (other than reductions in Permitted Investments) in any Person resulting from payments of interest on Indebtedness, dividends, repayments of loans or advances, or other transfers of assets, in each case to the Company or any Restricted Subsidiary or from the Net Cash Proceeds from the sale of any such Investment (except, in each case, to the extent any such payment or proceeds are included in the calculation of Adjusted Consolidated Net Income), or from redesignations of Unrestricted Subsidiaries as Restricted Subsidiaries (valued in each case as provided in the definition of "Investments"), not to exceed, in each case, the amount of Investments previously made by the Company or any Restricted Subsidiary in such Person or Unrestricted Subsidiary.thereto:

Limitation on Restricted Payments. (a) The Company will and the Parent Guarantor jointly and severally agree that the Company and the Parent Guarantor shall not, and will shall not permit any Restricted SubsidiarySubsidiary of either the Company or the Parent Guarantor to, directly or indirectly, to (i) declare or pay any dividend or make any distribution on or with respect to its Capital Stock (other than (x) dividends or distributions payable solely in shares of its the Company’s or the Parent Guarantor’s Capital Stock (other than Disqualified Stock) or in options, warrants or other rights to acquire shares of such Capital Stock (other than Disqualified Stock) and (y) pro rata dividends or distributions on Common Stock of Restricted Subsidiaries held by minority stockholders, provided that such dividends do not in the aggregate exceed the minority stockholders' pro rata share of such Restricted Subsidiaries' net income from the first day of the fiscal quarter beginning immediately following the Closing Date) held by Persons other than the Company Company, the Parent Guarantor or any of its Restricted SubsidiariesSubsidiary, (ii) purchase, redeem, retire or otherwise acquire for value any shares of Capital Stock of (x) the Company, any Subsidiary Parent Guarantor or an Unrestricted Subsidiary (including options, warrants or other rights to acquire such shares of Capital Stock) held by Persons any Person or (y) a Restricted Subsidiary (including options, warrants or other rights to acquire such shares of Capital Stock) held by any Affiliate of the Parent Guarantor (other than the Company and its a Wholly Owned SubsidiariesRestricted Subsidiary) or any holder (or any Affiliate of such holder) of 5% or more of the Capital Stock of the Parent Guarantor, (iii) make any voluntary or optional principal payment, or voluntary or optional redemption, repurchase, defeasance, or other acquisition or retirement for value, of any Indebtedness of the Company that is subordinated in right of payment to the Notes Notes, the Parent Guarantee or of any Subsidiary Guarantor that is subordinated to the Subsidiary Guaranties (other than, in each case, the purchase, repurchase or the acquisition of Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in any case due within one year of the date of acquisition) Guarantee; or (iv) make any Investment, other than a Permitted Investment, in any Person (such payments or any other actions described in clauses (i) through (iv) above being collectively "RESTRICTED PAYMENTS"referred to as “Restricted Payments”) if, at the time of, and after giving effect to, the proposed Restricted Payment: (A) an a Default or Event of Default shall have occurred and be continuing, (B) except with respect to Investments in Restricted Subsidiaries and dividends on the Common Stock of any Subsidiary Parent Guarantor paid to the Company or any Restricted Subsidiary, the Company could not Incur at least $1.00 of Indebtedness under the first sentence of paragraph clause (ai) of Section 4.03 4.03(a) or (C) the aggregate amount of all Restricted Payments (the amount, if other than in cash, to be determined in good faith by the Board of Directors, whose determination shall be conclusive and evidenced by a Board Resolution) made after the Existing High Yield Closing Date (after giving pro forma effect to the proposed Restricted Payment) shall exceed the sum of (1) 50the amount by which Consolidated EBITDA of the Parent Guarantor exceeds 150% of the aggregate amount Consolidated Interest Expense of the Adjusted Consolidated Net Income (orParent Guarantor, if the Adjusted Consolidated Net Income is a lossin each case, minus 100% of the amount of such loss) (determined by excluding income resulting from transfers of assets by the Company or a Restricted Subsidiary to an Unrestricted Subsidiary) accrued on a cumulative basis during the period (taken as one accounting period) beginning on the first day of the fiscal quarter immediately following the Existing High Yield Closing Date and ending on the last day of the last fiscal quarter preceding the Transaction Date for which reports have been filed with the Commission or provided to the Trustee pursuant to Section 4.18 4.18, plus (2) the aggregate amount Net Cash Proceeds and the fair market value of Designated Equity Proceeds all non-cash proceeds received by the Company or the Parent Guarantor after the Existing High Yield Closing DateDate from the issuance and sale permitted by this Indenture of its Capital Stock (other than Disqualified Stock) to a Person who is not a Subsidiary of the Company or the Parent Guarantor, including an issuance or sale permitted by this Indenture of Indebtedness of the Company or the Parent Guarantor for cash subsequent to the Existing High Yield Closing Date upon the conversion of such Indebtedness into Capital Stock (other than Disqualified Stock) of the Company or the Parent Guarantor, or from the issuance to a Person who is not a Subsidiary of the Company or the Parent Guarantor of any options, warrants or other rights to acquire Capital Stock of the Company or the Parent Guarantor (in each case, exclusive of any Disqualified Stock or any options, warrants or other rights that are redeemable at the option of the holder, or are required to be redeemed, prior to the Stated Maturity of the Notes), in each case except to the extent such amount of Designated Equity Net Cash Proceeds is and non-cash proceeds are used as a basis to Incur Indebtedness pursuant to clause (i) or (viii) of paragraph (a) under Section 4.034.03(b), plus (3) an amount equal to the net reduction in Investments (other than reductions in Permitted Investments) in any Person resulting from payments of interest on Indebtedness, dividends, repayments of loans or advances, or other transfers of assets, in each case to the Company Company, the Parent Guarantor or any Restricted Subsidiary or from the Net Cash Proceeds from the sale of any such Investment (except, in each case, to the extent any such payment or proceeds are included in the calculation of Adjusted Consolidated Net Income), or from redesignations of Unrestricted Subsidiaries as Restricted Subsidiaries (valued in each case as provided in the definition of "“Investments"”), not to exceed, in each case, the amount of Investments previously made by the Company Company, the Parent Guarantor or any Restricted Subsidiary in such Person or Unrestricted Subsidiary.

Limitation on Restricted Payments. (a) The Company will Borrower shall not, and will shall not permit any Restricted SubsidiarySubsidiary to, directly or indirectly, to indirectly (ix) declare or pay any dividend or make any distribution on account of the Borrower’s or any Restricted Subsidiary’s Equity Interests, including any dividend or distribution payable in connection with respect to its Capital Stock (any merger, amalgamation or consolidation, other than (xA) dividends or distributions by the Borrower payable solely in shares of its Capital Stock Equity Interests (other than Disqualified Stock) of the Borrower or in options, warrants or other rights to acquire shares of such Capital Stock and (yB) pro rata dividends or distributions on Common Stock of by a Restricted Subsidiaries held by minority stockholdersSubsidiary so long as, provided that such dividends do not in the aggregate exceed case of any dividend or distribution payable on or in respect of any class or series of securities issued by a Restricted Subsidiary other than a Wholly-Owned Subsidiary, the minority stockholders' Borrower or a Restricted Subsidiary receives at least its pro rata share of such Restricted Subsidiaries' net income from the first day dividend or distribution in accordance with its Equity Interests in such class or series of the fiscal quarter beginning immediately following the Closing Date) held by Persons other than the Company or any of its Restricted Subsidiariessecurities, (iiy) purchase, redeem, retire defease or otherwise acquire or retire for value any shares of Capital Stock Equity Interests of the CompanyBorrower or any direct or indirect parent of the Borrower, including in connection with any Subsidiary Guarantor merger or an Unrestricted Subsidiary consolidation, or (including options, warrants or other rights to acquire such shares of Capital Stock) held by Persons other than the Company and its Wholly Owned Subsidiaries, (iiiz) make any voluntary or optional principal paymentpayment on, or voluntary or optional redemptionredeem, repurchase, defeasance, defease or other acquisition otherwise acquire or retirement retire for value, of Indebtedness of the Company that is subordinated in right of payment to the Notes or of any Subsidiary Guarantor that is subordinated to the Subsidiary Guaranties (other than, value in each case, prior to any scheduled repayment, sinking fund payment or maturity, any Junior Indebtedness (other than the purchase, repurchase or the other acquisition of Junior Indebtedness purchased in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in any each case due within one year of the date of purchase, repurchase or acquisition) or (iv) make any Investment, other than a Permitted Investment, in any Person (all such payments or any and other actions described set forth in clauses (ix) through (ivz) above being collectively "RESTRICTED PAYMENTS") if, at the time of, and after giving effect to, the proposed referred to as “Restricted Payment: (A) an Event of Default shall have occurred and be continuing, (B) except with respect to Investments in Restricted Subsidiaries and dividends on the Common Stock of any Subsidiary Guarantor paid to the Company or any Restricted Subsidiary, the Company could not Incur at least $1.00 of Indebtedness under the first sentence of paragraph (a) of Section 4.03 or (C) the aggregate amount of all Restricted Payments (the amount, if other than in cash, to be determined in good faith by the Board of Directors, whose determination shall be conclusive and evidenced by a Board Resolution) made after the Closing Date (after giving pro forma effect to the proposed Restricted Payment) shall exceed the sum of (1) 50% of the aggregate amount of the Adjusted Consolidated Net Income (or, if the Adjusted Consolidated Net Income is a loss, minus 100% of the amount of such loss) (determined by excluding income resulting from transfers of assets by the Company or a Restricted Subsidiary to an Unrestricted Subsidiary) accrued on a cumulative basis during the period (taken as one accounting period) beginning on the first day of the fiscal quarter immediately following the Closing Date and ending on the last day of the last fiscal quarter preceding the Transaction Date for which reports have been filed pursuant to Section 4.18 plus (2) the aggregate amount of Designated Equity Proceeds received by the Company after the Closing Date, except to the extent such amount of Designated Equity Proceeds is used as a basis to Incur Indebtedness pursuant to clause (i) or (viii) of paragraph (a) under Section 4.03, plus (3) an amount equal to the net reduction in Investments (other than reductions in Permitted Investments) in any Person resulting from payments of interest on Indebtedness, dividends, repayments of loans or advances, or other transfers of assets, in each case to the Company or any Restricted Subsidiary or from the Net Cash Proceeds from the sale of any such Investment (except, in each case, to the extent any such payment or proceeds are included in the calculation of Adjusted Consolidated Net IncomePayments”), or from redesignations of Unrestricted Subsidiaries as Restricted Subsidiaries (valued in each case as provided in the definition of "Investments"), not to exceed, in each case, the amount of Investments previously made by the Company or any Restricted Subsidiary in such Person or Unrestricted Subsidiary.other than:

Limitation on Restricted Payments. (a) The Company will shall not, and will shall not permit any Restricted Subsidiary, directly or indirectly, to (i) declare or pay any dividend or make any distribution on or with in respect to of its Capital Stock (other than including any payment in connection with any merger or consolidation involving the Company) except (xA) dividends or distributions payable solely in shares of its Capital Stock (other than Disqualified Stock) or in options, warrants or other rights to acquire shares of such Capital Stock and (yB) pro rata dividends or distributions on Common Stock of Restricted Subsidiaries held by minority stockholders, provided that such dividends do not in the aggregate exceed the minority stockholders' pro rata share of such Restricted Subsidiaries' net income from the first day of the fiscal quarter beginning immediately following the Closing Date) held by Persons other than payable to the Company or any of another Subsidiary (and, if such Subsidiary is not a Wholly-Owned Subsidiary, to its Restricted Subsidiariesother stockholders on a pro rata basis), (ii) purchase, redeem, retire or otherwise acquire for value any shares of Capital Stock of the Company, Company or any Subsidiary Guarantor or an Unrestricted Subsidiary (including options, warrants or other rights to acquire such shares of Capital Stock) held by Persons other than the Company and its Wholly Owned Subsidiariesor another Subsidiary, (iii) make any voluntary or optional principal payment, or voluntary or optional redemptionpurchase, repurchase, defeasanceredeem, defease or other acquisition otherwise acquire or retirement retire for value, of Indebtedness of the Company that is subordinated in right of payment prior to the Notes scheduled maturity, scheduled repayment or of scheduled sinking fund payment, any Subsidiary Guarantor that is subordinated to the Subsidiary Guaranties Subordinated Obligations (other than, in each case, than the purchase, repurchase or the other acquisition of Indebtedness Subordinated Obligations purchased in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in any each case due within one year of the date of acquisition) or (iv) make any Investment, Investment (other than a Permitted Investment, ) in any Person (any such payments dividend, distribution, purchase, redemption, repurchase, defeasance, other acquisition, retirement or any other actions described in clauses (i) through (iv) Investment being collectively herein referred to as a "RESTRICTED PAYMENTSRestricted Payment") if), if at the time of, and after giving effect to, the proposed Company or such Subsidiary makes such Restricted Payment: (A1) an Event of a Default shall have occurred and be continuing, continuing (Bor would result therefrom); or (2) except with respect to Investments in Restricted Subsidiaries and dividends on the Common Stock of any Subsidiary Guarantor paid to the Company or any Restricted Subsidiary, the Company could not Incur at least an additional $1.00 of Indebtedness under the first sentence of paragraph (a) of pursuant to Section 4.03 4.3(a); or (C3) the aggregate amount of such Restricted Payment and all other Restricted Payments declared (the amountamount so expended, if other than in cash, to be determined in good faith by the Board of Directors, whose determination shall be conclusive and evidenced by a resolution of the Board Resolutionof Directors) or made after the Closing Date (after giving pro forma effect subsequent to the proposed Restricted Payment) shall Issue Date would exceed the sum of of: (1A) 50% of the aggregate amount of the Adjusted Consolidated Net Income accrued during the period (treated as one accounting period) from the Issue Date to the end of the most recent fiscal quarter ending prior to the date of such Restricted Payment as to which financial results are available (but in no event more than 135 days prior to the date of such Restricted Payment) (or, if the Adjusted in case such Consolidated Net Income is shall be a lossdeficit, minus 100% of the amount of such loss) deficit); (determined by excluding income resulting from transfers of assets by the Company or a Restricted Subsidiary to an Unrestricted Subsidiary) accrued on a cumulative basis during the period (taken as one accounting period) beginning on the first day of the fiscal quarter immediately following the Closing Date and ending on the last day of the last fiscal quarter preceding the Transaction Date for which reports have been filed pursuant to Section 4.18 plus (2B) the aggregate amount of Designated Equity Net Cash Proceeds received by the Company after from the Closing Date, except to the extent such amount issue or sale of Designated Equity Proceeds is used as a basis to Incur Indebtedness pursuant to clause (i) or (viii) of paragraph (a) under Section 4.03, plus (3) an amount equal to the net reduction in Investments its Capital Stock (other than reductions in Permitted InvestmentsDisqualified Stock) in any Person resulting from payments of interest on Indebtedness, dividends, repayments of loans or advances, or other transfers cash contributions to its capital subsequent to the Issue Date (other than an issuance or sale to a Subsidiary of assets, in each case to the Company or any Restricted Subsidiary an employee stock ownership plan or from the Net Cash Proceeds from the sale of any such Investment (except, in each case, to the extent any such payment or proceeds are included in the calculation of Adjusted Consolidated Net Income), or from redesignations of Unrestricted Subsidiaries as Restricted Subsidiaries (valued in each case as provided in the definition of "Investments"), not to exceed, in each case, the amount of Investments previously made other trust established by the Company or any Restricted of its Subsidiaries); (C) aggregate Net Cash Proceeds from issue or sale of its Capital Stock to an employee stock ownership plan or similar trust, provided, however, that if such plan or trust Incurs any Indebtedness to or Guaranteed by the Company to finance the acquisition of such Capital Stock, such aggregate amount shall be limited to any increase in the Consolidated Net Worth of the Company resulting from principal repayments made by such plan or trust with respect to Indebtedness Incurred by it to finance the purchase of such Capital Stock; and (D) the amount by which Indebtedness of the Company or its Subsidiaries is reduced on the Company's balance sheet upon the conversion or exchange (other than by a Subsidiary) subsequent to the Issue Date of any Indebtedness of the Company or its Subsidiaries convertible or exchangeable for Capital Stock (other than Disqualified Stock) of the Company (less the amount of any cash, or other property, distributed by the Company or any Subsidiary in upon such Person conversion or Unrestricted Subsidiaryexchange).

Limitation on Restricted Payments. (a) The Company will shall not, and will shall not permit any Restricted SubsidiarySubsidiary to, directly or indirectly, to : (i) declare or pay any dividend dividend, or make any distribution on distribution, of any kind or with character (whether in cash, property or securities) in respect to its of the Capital Stock of the Company or any Restricted Subsidiary or to the Holders thereof in their capacity as such, excluding: (x) any dividends or distributions to the extent payable in shares of the Capital Stock of the Company (other than (x) dividends or distributions payable solely in shares of its Capital Stock (other than Disqualified StockRedeemable Interests) or in options, warrants or other rights to acquire shares of such the Capital Stock and of the Company (other than Redeemable Interests), (y) dividends or distributions by a Restricted Subsidiary to the Company or another Wholly-Owned Restricted Subsidiary, and (z) the payment of pro rata dividends or distributions on Common Stock by a Restricted Subsidiary to Holders of Restricted Subsidiaries held by both minority stockholders, provided that such dividends do not and majority interests in the aggregate exceed the minority stockholders' pro rata share of such Restricted Subsidiaries' net income from the first day of the fiscal quarter beginning immediately following the Closing Date) held by Persons other than the Company or any of its Restricted Subsidiaries, Subsidiary); (ii) purchase, redeem, retire redeem or otherwise acquire or retire for value value: (a) any Capital Stock of the Company or any Capital Stock of or other ownership interests in any Subsidiary or any Affiliate or Related Person of the Company, or (b) any options, warrants or rights to purchase or acquire shares of Capital Stock of the Company, Company or any Capital Stock of or other ownership interests in any Subsidiary Guarantor or an Unrestricted any Affiliate or Related Person of the Company (excluding, in each case of (a) and (b), the purchase, redemption, acquisition or retirement by any Restricted Subsidiary (including of any of its Capital Stock, other ownership interests or options, warrants or other rights to acquire purchase such shares of Capital Stock) held Stock or other ownership interests, in each case, owned by Persons other than the Company and its Wholly or a Wholly-Owned Subsidiaries, Restricted Subsidiary); (iii) make any voluntary Investment that is not a Permitted Investment; or optional principal payment(iv) redeem, or voluntary or optional redemptiondefease, repurchase, defeasanceretire or otherwise acquire or retire for value prior to any scheduled maturity, repayment or other acquisition or retirement for valuesinking fund payment, of Indebtedness Debt of the Company that is subordinated subordinate in right of payment to the Notes or of any Subsidiary Guarantor that is subordinated to the Subsidiary Guaranties (other than, in each case, the purchase, repurchase or the acquisition of Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in any case due within one year of the date of acquisition) or (iv) make any Investment, other than a Permitted Investment, in any Person (such payments or any other actions transactions described in clauses (i) through (iv) being collectively "RESTRICTED PAYMENTS") if, at the time of, and after giving effect to, the proposed a “Restricted Payment: (A) an Event of Default shall have occurred and be continuing, (B) except with respect to Investments in Restricted Subsidiaries and dividends on the Common Stock of any Subsidiary Guarantor paid to the Company or any Restricted Subsidiary, the Company could not Incur at least $1.00 of Indebtedness under the first sentence of paragraph (a) of Section 4.03 or (C) the aggregate amount of all Restricted Payments (the amount, if other than in cash, to be determined in good faith by the Board of Directors, whose determination shall be conclusive and evidenced by a Board Resolution) made after the Closing Date (after giving pro forma effect to the proposed Restricted Payment) shall exceed the sum of (1) 50% of the aggregate amount of the Adjusted Consolidated Net Income (or, if the Adjusted Consolidated Net Income is a loss, minus 100% of the amount of such loss) (determined by excluding income resulting from transfers of assets by the Company or a Restricted Subsidiary to an Unrestricted Subsidiary) accrued on a cumulative basis during the period (taken as one accounting period) beginning on the first day of the fiscal quarter immediately following the Closing Date and ending on the last day of the last fiscal quarter preceding the Transaction Date for which reports have been filed pursuant to Section 4.18 plus (2) the aggregate amount of Designated Equity Proceeds received by the Company after the Closing Date, except to the extent such amount of Designated Equity Proceeds is used as a basis to Incur Indebtedness pursuant to clause (i) or (viii) of paragraph (a) under Section 4.03, plus (3) an amount equal to the net reduction in Investments (other than reductions in Permitted Investments) in any Person resulting from payments of interest on Indebtedness, dividends, repayments of loans or advances, or other transfers of assets, in each case to the Company or any Restricted Subsidiary or from the Net Cash Proceeds from the sale of any such Investment (except, in each case, to the extent any such payment or proceeds are included in the calculation of Adjusted Consolidated Net Income”), or from redesignations of Unrestricted Subsidiaries as Restricted Subsidiaries (valued in each case as provided in the definition of "Investments"), not to exceed, in each case, the amount of Investments previously made by the Company or any Restricted Subsidiary in such Person or Unrestricted Subsidiary.if:

Limitation on Restricted Payments. (a) The Company will shall not, and will shall not permit any Restricted Subsidiaryof its Subsidiaries, directly or indirectly, to (i) declare or pay any dividend or make any distribution on or with in respect to of its Capital Stock (other than including any payment in connection with any merger or consolidation involving the Company or any of its Subsidiaries) except (xA) dividends or distributions payable solely in shares of its Capital Stock (other than Disqualified Stock) or in options, warrants or other rights to acquire shares of purchase such Capital Stock and (yB) pro rata dividends or distributions on Common Stock of Restricted Subsidiaries held by minority stockholders, provided that such dividends do not in the aggregate exceed the minority stockholders' pro rata share of such Restricted Subsidiaries' net income from the first day of the fiscal quarter beginning immediately following the Closing Date) held by Persons other than payable to the Company or any a Subsidiary of the Company (and, if such Subsidiary is not a Wholly Owned Subsidiary, to its Restricted Subsidiariesother stockholders on a pro rata basis or on a basis no more favorable to such other stockholders), (ii) purchase, redeem, retire or otherwise acquire for value any shares of Capital Stock of the Company, any Subsidiary Guarantor or an Unrestricted Subsidiary (including options, warrants or other rights to acquire such shares of Capital Stock) Company held by Persons other than a Subsidiary of the Company and or any Capital Stock of a Subsidiary of the Company held by any Affiliate of the Company, other than another Subsidiary (in either case, other than in exchange for its Wholly Owned SubsidiariesCapital Stock (other than Disqualified Stock)), (iii) make any voluntary or optional principal payment, or voluntary or optional redemptionpurchase, repurchase, defeasanceredeem, defease or other acquisition otherwise acquire or retirement retire for value, of Indebtedness of the Company that is subordinated in right of payment prior to the Notes scheduled maturity, scheduled repayment or of scheduled sinking fund payment, any Subsidiary Guarantor that is subordinated to the Subsidiary Guaranties Subordinated Obligations (other than, in each case, than the purchase, repurchase or the other acquisition of Indebtedness Subordinated Obligations purchased in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in any each case due within one year of the date of acquisition) or (iv) make any Investment, Investment (other than a Permitted Investment, ) in any Person (any such payments dividend, distribution, purchase, redemption, repurchase, defeasance, other acquisition, retirement or any other actions described in clauses (i) through (iv) Investment being collectively herein referred to as a "RESTRICTED PAYMENTSRestricted Payment") if), if at the time of, and after giving effect to, the proposed Company or such Subsidiary makes such Restricted Payment: (A1) an a Default or Event of Default shall have occurred and be continuing, continuing (Bor would result therefrom); or (2) except with respect to Investments in Restricted Subsidiaries and dividends on the Common Stock of any Subsidiary Guarantor paid to the Company or any Restricted Subsidiary, the Company could is not Incur at least able to incur an additional $1.00 of Indebtedness under pursuant to Section 4.3(a); or (3) the first sentence aggregate amount of paragraph such Restricted Payment and all other Restricted Payments declared or made subsequent to the Issue Date would exceed the sum of: (aA) 50% of Section 4.03 the Consolidated Net Income accrued during the period (treated as one accounting period) from the Issue Date to the end of the most recent fiscal quarter ending prior to the date of such Restricted Payment as to which financial results are available (but in no event ending more than 135 days prior to the date of such Restricted Payment) (or, in case such Consolidated Net Income shall be a deficit, minus 100% of such deficit); (B) the aggregate Net Cash Proceeds received by the Company from the issue or sale of its Capital Stock (other than Disqualified Stock) or other cash contributions to its capital subsequent to the Issue Date (other than an issuance or sale to a Subsidiary of the Company or an employee stock ownership plan or similar trust); (C) the aggregate amount of all Restricted Payments (the amount, if other than in cash, to be determined in good faith by the Board of Directors, whose determination shall be conclusive and evidenced by a Board Resolution) made after the Closing Date (after giving pro forma effect to the proposed Restricted Payment) shall exceed the sum of (1) 50% of the aggregate amount of the Adjusted Consolidated Net Income (or, if the Adjusted Consolidated Net Income is a loss, minus 100% of the amount of such loss) (determined by excluding income resulting from transfers of assets by the Company or a Restricted Subsidiary to an Unrestricted Subsidiary) accrued on a cumulative basis during the period (taken as one accounting period) beginning on the first day of the fiscal quarter immediately following the Closing Date and ending on the last day of the last fiscal quarter preceding the Transaction Date for which reports have been filed pursuant to Section 4.18 plus (2) the aggregate amount of Designated Equity Cash Proceeds received by the Company after from the Closing Date, except issue or sale of its Capital Stock (other than Disqualified Stock) to an employee stock ownership plan or similar trust subsequent to the extent Issue Date; provided, however, that if such plan or trust Incurs any Indebtedness to or Guaranteed by the Company or any of its Subsidiaries to finance the acquisition of such Capital Stock, such aggregate amount shall be limited to such Net Cash Proceeds less such Indebtedness Incurred or Guaranteed by the Company or any of its Subsidiaries and any increase in the Consolidated Net Worth of the Company resulting from principal repayments made by such plan or trust with respect to Indebtedness Incurred by it to finance the purchase of such Capital Stock; (D) the amount by which Indebtedness of the Company is reduced on the Company's balance sheet upon the conversion or exchange (other than by a Subsidiary of the Company) subsequent to the Issue Date of any Indebtedness of the Company convertible or exchangeable for Capital Stock of the Company (less the amount of Designated Equity Proceeds is used as a basis to Incur Indebtedness pursuant to clause any cash, or other property, distributed by the Company upon such conversion or exchange); and (iE) or (viii) of paragraph (a) under Section 4.03, plus (3) an the amount equal to the net reduction in Investments (other than reductions in Permitted Investments) in any Person resulting from payments of interest on Indebtedness, dividends, repayments of loans or advances, or other transfers of assets, in each case to the Company or any Restricted Subsidiary or from the Net Cash Proceeds from the sale of any such Investment (except, in each case, to the extent any such payment or proceeds are included in the calculation of Adjusted Consolidated Net Income), or from redesignations of Unrestricted Subsidiaries as Restricted Subsidiaries (valued in each case as provided in the definition of "Investments"), not to exceed, in each case, the amount of Investments previously made by the Company or any Restricted Subsidiary of its Subsidiaries in any Person resulting from repurchases or redemptions of such Investments by such Person, proceeds realized upon the sale of such Investment to an unaffiliated purchaser, repayments of loans or advances or other transfers of assets by such Person to the Company or Unrestricted Subsidiaryany Subsidiary of the Company; provided, however, that no amount shall be included under this clause (E) of this Section 4.4(a) to the extent it is already included in Consolidated Net Income.

Limitation on Restricted Payments. (a) The Company will not, --------------------------------- and will not permit any Restricted SubsidiarySubsidiary to, directly or indirectly, to (i) declare or pay any dividend or make any distribution on or with respect to its Capital Stock (other than (x) dividends or distributions payable solely in shares of its Capital Stock (other than Disqualified Redeemable Stock) or in options, warrants or other rights to acquire shares of such Capital Stock and (y) pro rata dividends or distributions on Common Stock of Restricted Subsidiaries held by minority stockholders, provided that such dividends do not in the aggregate exceed the minority stockholders' pro rata share of such Restricted Subsidiaries' net income from the first day of the fiscal quarter beginning immediately following the Closing Date) held by Persons other than the Company or any of its Restricted Subsidiaries, (ii) purchase, redeem, retire or otherwise acquire for value any shares of Capital Stock of (A) the Company, any Subsidiary Guarantor Company or an Unrestricted Subsidiary (including options, warrants or other rights to acquire such shares of Capital Stock) held by Persons any Person or (B) a Restricted Subsidiary (including options, warrants or other rights to acquire such shares of Capital Stock) held by any Affiliate of the Company (other than the Company and its a Wholly Owned SubsidiariesRestricted Subsidiary) or any holder (or any Affiliate of such holder) of 5% or more of the Capital Stock of the Company, (iii) make any voluntary or optional principal payment, or voluntary or optional redemption, repurchase, defeasance, or other acquisition or retirement for value, of Indebtedness of the Company that is subordinated in right of payment to the Notes or of any Subsidiary Guarantor that is subordinated to the Subsidiary Guaranties (other than, in each case, the purchase, repurchase or the acquisition of Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in any case due within one year of after the date of such purchase, repurchase or acquisition) or (iv) make any Investment, other than a Permitted Investment, in any Person (such payments or any other actions described in clauses (i) through (iv) above being collectively "RESTRICTED PAYMENTSRestricted Payments") if, at the time of, and after giving effect to, the proposed Restricted Payment: (A) an a Default or Event of Default shall have occurred and be continuing, (B) except with respect to Investments in Restricted Subsidiaries and dividends on the Common Stock of any Subsidiary Guarantor paid to the Company or any Restricted Subsidiary, the Company could not Incur at least $1.00 of Indebtedness under the first sentence of paragraph (a) of Section 4.03 4.03(a) or (C) the aggregate amount of all Restricted Payments (the amount, if other than in cash, to be determined in good faith by the Board of Directors, whose determination shall be conclusive and evidenced by a Board Resolution) made after the Closing Date (after giving pro forma effect to the proposed Restricted Payment) shall exceed the sum of (1) 50% of the aggregate amount of the Adjusted Consolidated Net Income (or, if the Adjusted Consolidated Net Income is a loss, minus 100% of the amount of such loss) (determined by excluding excluding, for purposes of such computation, income resulting from transfers of assets by the Company or a Restricted Subsidiary to an Unrestricted Subsidiary) accrued on a cumulative basis during the period (taken as one accounting period) beginning on the first day of the fiscal quarter immediately following the Closing Date and ending on the last day of the last fiscal quarter preceding the Transaction Date for which reports have been filed with the Commission or provided to the Trustee pursuant to Section 4.18 4.17 plus (2) the aggregate amount of Designated Equity Net Cash Proceeds received by the Company after the Closing DateDate from a capital contribution or the issuance and sale permitted by this Indenture to a Person who is not a Subsidiary of the Company of (a) its Capital Stock (other than Redeemable Stock), (b) any options, warrants or other rights to acquire Capital Stock of the Company (in each case, exclusive of any Redeemable Stock or any options, warrants or other rights that are redeemable at the option of the holder, or are required to be redeemed, prior to the Stated Maturity of the Notes) and (c) Indebtedness of the Company that has been exchanged for or converted into Capital Stock of the Company (other than Redeemable Stock), in each case except to the extent such amount of Designated Equity Net Cash Proceeds is are used as a basis to Incur Indebtedness pursuant to clause (i) or (viii) of the second paragraph (a) under of Section 4.034.03(a), plus (3) an amount equal to the net reduction in Investments (other than reductions in Permitted InvestmentsInvestments and reductions in Investments made pursuant to clause (vi) of the second paragraph of this Section 4.04) in any Person resulting from payments of interest on Indebtedness, dividends, repayments of loans or advances, or other transfers of assets, in each case to the Company or any Restricted Subsidiary or from the Net Cash Proceeds from the sale of any such Investment (except, in each case, to the extent any such payment or proceeds are is included in the calculation of Adjusted Consolidated Net Income), or from redesignations of Unrestricted Subsidiaries as Restricted Subsidiaries (valued in each case as provided in the definition of "Investments"), not to exceed, in each case, the amount of Investments previously made by the Company or any Restricted Subsidiary in such Person or Unrestricted Subsidiary.

Limitation on Restricted Payments. (a) The Company will shall not, and will shall cause its Restricted Subsidiaries not permit any Restricted Subsidiaryto, directly or indirectly, to (i) declare or pay any dividend on, or make any distribution on or with respect to its the holders of, any Capital Stock (of the Company, other than (x) dividends or distributions payable solely in shares of its Capital Stock of the Company (other than Disqualified Stock); (ii) repay, redeem or in options, warrants otherwise acquire or retire for value (other rights to acquire shares than through the issuance of such Capital Stock and of the Company (yexcluding Disqualified Stock)) pro rata dividends or distributions on Common any Capital Stock of Restricted Subsidiaries held by minority stockholders, provided that such dividends do not in the aggregate exceed the minority stockholders' pro rata share of such Restricted Subsidiaries' net income from the first day of the fiscal quarter beginning immediately following the Closing Date) held by Persons other than the Company or any of its Restricted Subsidiaries, other than any such repayment, redemption, acquisition or retirement of such Capital Stock held by the Company or its Restricted Subsidiaries; (iiiii) purchaseprepay, repay, redeem, retire defease or otherwise acquire or retire for value any shares (other than through the issuance of Capital Stock of the CompanyCompany (excluding Disqualified Stock)), prior to any scheduled maturity, scheduled repayment or scheduled sinking fund payment, any Subsidiary Guarantor or an Unrestricted Subsidiary (including options, warrants or other rights to acquire such shares of Capital Stock) held by Persons other than the Company and its Wholly Owned Subsidiaries, (iii) make any voluntary or optional principal payment, or voluntary or optional redemption, repurchase, defeasance, or other acquisition or retirement for value, of Indebtedness of the Company or any of its Restricted Subsidiaries that is subordinated ranks junior in right of payment to the Notes or of any Subsidiary Guarantor that is subordinated Notes, except as permitted pursuant to the Subsidiary Guaranties (other than, in each case, the purchase, repurchase or the acquisition of Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in any case due within one year of the date of acquisition) Section 5.14(b)(vii); or (iv) make any Investment, Investment in any Affiliate of the Company other than a Permitted Investment, (A) an Investment by the Company or any of its Restricted Subsidiaries in the Company or any Person (such payments Restricted Subsidiaries or in TFM or any other Affiliate that is bidding for or has obtained concessions or railroad assets from the Mexican government with respect to the ownership or operation of railroads in Mexico, or (B) an Investment by the Company or any Restricted Subsidiary arising as a result of, or in connection with, a Qualifying Disposition (the foregoing actions described set forth in clauses (i) through (iv) being collectively referred to hereinafter as "RESTRICTED PAYMENTS") if, if at the time ofof any such Restricted Payment, and after giving effect tothereto on a pro forma basis, the proposed Restricted Payment: (A1) a Default or an Event of Default shall have occurred and be continuing, (B2) except with respect to Investments in the Consolidated Net Worth of the Company and its Restricted Subsidiaries and dividends on the Common Stock of any Subsidiary Guarantor paid to the Company or any Restricted Subsidiaryshall be less than $250,000,000, (3) the Company could not Incur incur at least $1.00 of additional Indebtedness under the first sentence of paragraph (a) of pursuant to Section 4.03 5.14(a), or (C4) the aggregate amount of all Restricted Payments declared or made after the Initial Issuance Date including such Restricted Payment (the amountvalue of any such payment, if other than in cash, to shall be the value determined in good faith by the Board of Directors, whose determination shall be conclusive Directors and evidenced by a Board Resolution) made after the Closing Date (after giving pro forma effect to the proposed Restricted Payment) shall exceed the sum of (1) 50% of the aggregate amount of the Adjusted Consolidated Net Income (or, if the Adjusted Consolidated Net Income is a loss, minus 100% of the amount of such loss) (determined by excluding income resulting from transfers of assets by the Company or a Restricted Subsidiary to an Unrestricted Subsidiary) accrued on a cumulative basis during the period (taken as one accounting period) beginning on the first day of the fiscal quarter immediately following the Closing Date and ending on the last day of the last fiscal quarter preceding the Transaction Date for which reports have been filed pursuant to Section 4.18 plus (2) the aggregate amount of Designated Equity Proceeds received by the Company after the Closing Date, except to the extent such amount of Designated Equity Proceeds is used as a basis to Incur Indebtedness pursuant to clause (i) or (viii) of paragraph (a) under Section 4.03, plus (3) an amount equal to the net reduction in Investments (other than reductions in Permitted Investments) in any Person resulting from payments of interest on Indebtedness, dividends, repayments of loans or advances, or other transfers of assets, in each case to the Company or any Restricted Subsidiary or from the Net Cash Proceeds from the sale of any such Investment (except, in each case, to the extent any such payment or proceeds are included in the calculation of Adjusted Consolidated Net Income), or from redesignations of Unrestricted Subsidiaries as Restricted Subsidiaries (valued in each case as provided in the definition of "Investments"), not to exceed, in each case, the amount of Investments previously made by the Company or any Restricted Subsidiary in such Person or Unrestricted Subsidiary.of:

Limitation on Restricted Payments. (a) The Company will not, and will not permit any of its Restricted SubsidiarySubsidiaries, directly or indirectly, to (i) declare or pay any dividend or make any distribution on or with in respect to of its Capital Stock (other than including any payment in connection with any merger or consolidation involving the Company or any of its Restricted Subsidiaries) except (xA) dividends or distributions payable solely in shares of its Capital Stock of the Company (other than Disqualified Stock) or in options, warrants or other rights to acquire shares of purchase such Capital Stock Stock; and (yB) pro rata dividends or distributions on Common Stock of Restricted Subsidiaries held by minority stockholders, provided that such dividends do not in the aggregate exceed the minority stockholders' pro rata share of such Restricted Subsidiaries' net income from the first day of the fiscal quarter beginning immediately following the Closing Date) held by Persons other than payable to the Company or any a Restricted Subsidiary (and if such Restricted Subsidiary is not a Wholly-Owned Subsidiary, to its other holders of its Restricted Subsidiaries, common Capital Stock on a pro rata basis); (ii) purchase, redeem, retire or otherwise acquire for value any shares of Capital Stock of the Company, Company or any Subsidiary Guarantor direct or an Unrestricted Subsidiary (including options, warrants or other rights to acquire such shares indirect parent of Capital Stock) the Company held by Persons other than the Company and its Wholly Owned Subsidiaries, or a Restricted Subsidiary (other than in exchange for Capital Stock of the Company (other than Disqualified Stock)); (iii) make any voluntary or optional principal payment, or voluntary or optional redemptionpurchase, repurchase, defeasanceredeem, defease or other acquisition otherwise acquire or retirement retire for value, of Indebtedness of the Company that is subordinated in right of payment prior to the Notes scheduled maturity, scheduled repayment or of scheduled sinking fund payment, any Subsidiary Subordinated Obligations or Guarantor that is subordinated to the Subsidiary Guaranties Subordinated Obligations (other than, in each case, than the purchase, repurchase or the other acquisition of Indebtedness Subordinated Obligations or Guarantor Subordinated Obligations purchased in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in any each case due within one year of the date of purchase, repurchase or acquisition) ); or (iv) make any InvestmentRestricted Investment in any Person; (any such dividend, distribution, purchase, redemption, repurchase, defeasance, other than a Permitted Investmentacquisition, in any Person (such payments retirement or any other actions described Restricted Investment referred to in clauses (i) through (iv) being collectively "RESTRICTED PAYMENTS") ifshall be referred to herein as a “Restricted Payment”), if at the time of, and after giving effect to, the proposed Restricted Payment: (A) an Event of Default shall have occurred and be continuing, (B) except with respect to Investments in Restricted Subsidiaries and dividends on the Common Stock of any Subsidiary Guarantor paid to the Company or any such Restricted Subsidiary, the Company could not Incur at least $1.00 of Indebtedness under the first sentence of paragraph (a) of Section 4.03 or (C) the aggregate amount of all Restricted Payments (the amount, if other than in cash, to be determined in good faith by the Board of Directors, whose determination shall be conclusive and evidenced by a Board Resolution) made after the Closing Date (after giving pro forma effect to the proposed Subsidiary makes such Restricted Payment) shall exceed the sum of (1) 50% of the aggregate amount of the Adjusted Consolidated Net Income (or, if the Adjusted Consolidated Net Income is a loss, minus 100% of the amount of such loss) (determined by excluding income resulting from transfers of assets by the Company or a Restricted Subsidiary to an Unrestricted Subsidiary) accrued on a cumulative basis during the period (taken as one accounting period) beginning on the first day of the fiscal quarter immediately following the Closing Date and ending on the last day of the last fiscal quarter preceding the Transaction Date for which reports have been filed pursuant to Section 4.18 plus (2) the aggregate amount of Designated Equity Proceeds received by the Company after the Closing Date, except to the extent such amount of Designated Equity Proceeds is used as a basis to Incur Indebtedness pursuant to clause (i) or (viii) of paragraph (a) under Section 4.03, plus (3) an amount equal to the net reduction in Investments (other than reductions in Permitted Investments) in any Person resulting from payments of interest on Indebtedness, dividends, repayments of loans or advances, or other transfers of assets, in each case to the Company or any Restricted Subsidiary or from the Net Cash Proceeds from the sale of any such Investment (except, in each case, to the extent any such payment or proceeds are included in the calculation of Adjusted Consolidated Net Income), or from redesignations of Unrestricted Subsidiaries as Restricted Subsidiaries (valued in each case as provided in the definition of "Investments"), not to exceed, in each case, the amount of Investments previously made by the Company or any Restricted Subsidiary in such Person or Unrestricted Subsidiary.:

Limitation on Restricted Payments. (a) The Company WCI will not, and will not permit any Restricted SubsidiarySubsidiary to, directly or indirectly, to (i) declare or pay any dividend or make any distribution on or with respect to its Capital Stock (other than (x) dividends or distributions payable solely in shares of its or such Restricted Subsidiary's Capital Stock (other than Disqualified Redeemable Stock) held by such holders or in options, warrants or other rights to acquire such shares of Capital Stock) other than such Capital Stock held by WCI or any of its Restricted Subsidiaries (and (y) other than pro rata dividends or distributions on Common Stock of Restricted Subsidiaries held by minority stockholders, provided that such dividends do not in the aggregate exceed the minority stockholders' pro rata share of such Restricted Subsidiaries' net income from the first day of the fiscal quarter beginning immediately following the Closing Date) held by Persons other than the Company or any of its Restricted Subsidiaries, ); (ii) purchaserepurchase, redeem, retire or otherwise acquire for value any shares of Capital Stock of the Company, any Subsidiary Guarantor or an Unrestricted Subsidiary WCI (including options, warrants or other rights to acquire such shares of Capital Stock) held by Persons other than the Company and its any Wholly Owned Subsidiaries, Restricted Subsidiaries of WCI; (iii) make any voluntary or optional principal payment, or voluntary or optional redemption, repurchase, defeasance, or other acquisition or retirement for value, of Indebtedness of the Company WCI that is subordinated in right of payment to the Notes or of any Subsidiary Guarantor that is subordinated to the Subsidiary Guaranties (other than, in each case, the purchase, repurchase or the acquisition of Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in any case due within one year of the date of acquisition) Equipment Note Guarantee; or (iv) make any Investment, other than a Permitted Investment, in any Person (such payments or any other actions described in clauses (i) through (iv) being collectively "RESTRICTED PAYMENTSRestricted Payments") if, at the time of, and after giving effect to, the proposed Restricted Payment: (A) an a Default or Event of Default shall have occurred and be continuing, (B) except with respect to Investments in any Investment (other than an Investment consisting of the designation of a Restricted Subsidiaries and dividends on the Common Stock of any Subsidiary Guarantor paid to the Company or any Restricted as an Unrestricted Subsidiary), the Company WCI could not Incur at least $1.00 of Indebtedness under the first sentence of paragraph (a) of Section 4.03 or (C) the aggregate amount of expended for all Restricted Payments (the amountamount so expended, if other than in cash, to be determined in good faith by the Board of Directors, whose determination shall be conclusive and evidenced by a Board Resolution) made after the Closing Date (after giving pro forma effect to the proposed Restricted Payment) shall exceed the sum of (1) 50% of the aggregate amount of the Adjusted Consolidated Net Income (or, if the Adjusted Consolidated Net Income is a loss, minus 100% of the amount of such lossamount) (determined by excluding income resulting from transfers of assets by the Company WCI or a Restricted Subsidiary to an Unrestricted Subsidiary) accrued on a cumulative basis during the period (taken as one accounting period) beginning on the first day of the fiscal quarter immediately following the Closing Date and ending on the last day of the last fiscal quarter preceding the Transaction Date for which reports have been filed pursuant to Section 4.18 plus (2) the aggregate amount of Designated Equity Net Cash Proceeds received by the Company WCI after the Closing DateDate from the issuance and sale permitted by this Indenture of its Capital Stock (other than Redeemable Stock) to a Person who is not a Subsidiary of WCI, except or from the issuance to a Person who is not a Subsidiary of WCI of any options, warrants or other rights to acquire Capital Stock of WCI (in each case, exclusive of any convertible Indebtedness, Redeemable Stock or any options, warrants or other rights that are redeemable at the option of the Holder, or are required to be redeemed, prior to the extent such amount Stated Maturity of Designated Equity Proceeds is used as a basis to Incur Indebtedness pursuant to clause (ithe Securities) or (viii) of paragraph (a) under Section 4.03, plus (3) an amount equal to the net reduction in Investments (other than reductions in Permitted InvestmentsInvestments and other than reductions in Investments made pursuant to clauses (vi) or (vii) of the second paragraph of this Section 4.04) in any Person resulting from payments of interest on Indebtedness, dividends, repayments of loans or advances, or other transfers of assets, in each case to the Company WCI or any Restricted Subsidiary or from the Net Cash Proceeds from the sale of any such Investment (except, in each case, except to the extent any such payment or proceeds are is included in the calculation of Adjusted Consolidated Net Income), or from redesignations of Unrestricted Subsidiaries as Restricted Subsidiaries (valued in each case as provided in the definition of "Investments"), not to exceed, in each case, exceed the amount of Investments previously made by the Company or any WCI and its Restricted Subsidiary Subsidiaries in such Person or Unrestricted Subsidiary.Person. The foregoing provision shall not be violated by reason of:

Limitation on Restricted Payments. No Indenture Obligor will, nor will it cause, permit or suffer any of its Obligor Subsidiaries to, (a) The Company will not, and will not permit any Restricted Subsidiary, directly or indirectly, to (i) declare or pay any dividend dividends or make any distribution other distributions (including through mergers, liquidations or other transactions but excluding, for the avoidance of doubt, the issuance of New Common Stock pursuant to the Plan of Reorganization) on or with respect to its any class of Capital Stock of any Indenture Obligor or its Obligor Subsidiaries (other than (x) dividends or distributions payable solely in shares to PCI or by a Wholly-Owned Subsidiary of PCI or of the Company on account of its Capital Stock (other than Disqualified Stock) or in options, warrants or other rights to acquire shares of such Capital Stock and (y) pro rata dividends or distributions on Common Stock of Restricted Subsidiaries held by minority stockholders, provided that such dividends do not in the aggregate exceed the minority stockholders' pro rata share of such Restricted Subsidiaries' net income from the first day of the fiscal quarter beginning immediately following the Closing Date) held by Persons other than PCI or the Company or any another Subsidiary of its Restricted Subsidiaries, (ii) purchase, redeem, retire PCI or otherwise acquire for value any the Company or payable or paid in shares of Capital Stock of the Company, any Subsidiary Guarantor or an Unrestricted Subsidiary (including options, warrants or other rights to acquire such shares of Capital Stock) held by Persons Company other than the Company and its Wholly Owned Subsidiariespreferred stock or redeemable stock), (iiib) make any voluntary or optional principal paymentpayment on account of, or voluntary or optional redemption, repurchase, defeasance, set apart money for a sinking or other acquisition or retirement for value, of Indebtedness of the Company that is subordinated in right of payment to the Notes or of any Subsidiary Guarantor that is subordinated to the Subsidiary Guaranties (other than, in each caseanalogous fund for, the purchase, repurchase redemption or other retirement of such Capital Stock, (c) purchase, defease, redeem or otherwise retire any Subordinated Indebtedness (other than with the acquisition of Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in any case due within one year proceeds of the date issuance of acquisition) Capital Stock of PCI which is permitted to be issued pursuant to the terms of this Indenture or with the proceeds of Subordinated Indebtedness which is permitted to be incurred pursuant to the terms of this Indenture), or (ivd) make any Investment, other than a Permitted Investmenteither directly or indirectly, whether in cash or property or in obligations of any Person Indenture Obligor or its Obligor Subsidiaries (such payments or all of the foregoing being called "Restricted Payments"). Notwithstanding the foregoing, any other actions described in clauses Obligor may make (i) through Permitted Issuances, (ii) Restricted Payments made pursuant to the Transaction Documents, (iii) Permitted Investments, and (iv) being collectively "RESTRICTED PAYMENTS") if, at the time of, and after giving effect to, the proposed Restricted Payment: (A) an Event of Default shall have occurred and regularly scheduled payments on Subordinated Indebtedness which is permitted to be continuing, (B) except with respect to Investments in Restricted Subsidiaries and dividends on the Common Stock of any Subsidiary Guarantor paid incurred pursuant to the Company or any Restricted Subsidiary, the Company could not Incur at least $1.00 terms of Indebtedness under the first sentence of paragraph (a) of Section 4.03 or (C) the aggregate amount of all Restricted Payments (the amount, if other than in cash, to be determined in good faith by the Board of Directors, whose determination shall be conclusive and evidenced by a Board Resolution) made after the Closing Date (after giving pro forma effect to the proposed Restricted Payment) shall exceed the sum of (1) 50% of the aggregate amount of the Adjusted Consolidated Net Income (or, if the Adjusted Consolidated Net Income is a loss, minus 100% of the amount of such loss) (determined by excluding income resulting from transfers of assets by the Company or a Restricted Subsidiary to an Unrestricted Subsidiary) accrued on a cumulative basis during the period (taken as one accounting period) beginning on the first day of the fiscal quarter immediately following the Closing Date and ending on the last day of the last fiscal quarter preceding the Transaction Date for which reports have been filed pursuant to Section 4.18 plus (2) the aggregate amount of Designated Equity Proceeds received by the Company after the Closing Date, except to the extent such amount of Designated Equity Proceeds is used as a basis to Incur Indebtedness pursuant to clause (i) or (viii) of paragraph (a) under Section 4.03, plus (3) an amount equal to the net reduction in Investments (other than reductions in Permitted Investments) in any Person resulting from payments of interest on Indebtedness, dividends, repayments of loans or advances, or other transfers of assets, in each case to the Company or any Restricted Subsidiary or from the Net Cash Proceeds from the sale of any such Investment (except, in each case, to the extent any such payment or proceeds are included in the calculation of Adjusted Consolidated Net Income), or from redesignations of Unrestricted Subsidiaries as Restricted Subsidiaries (valued in each case as provided in the definition of "Investments"), not to exceed, in each case, the amount of Investments previously made by the Company or any Restricted Subsidiary in such Person or Unrestricted Subsidiarythis Indenture.

Limitation on Restricted Payments. (a) The Company will Parent Borrower shall not, and will shall not permit any Restricted Subsidiary, directly or indirectly, to (i) declare or pay any dividend or make any distribution or redeem any of its share capital, share premium reserve or special reserve (including, without limitation, the account 115 of the Luxembourg standard chart of accounts (plan comptable)) on or with in respect to of its Capital Stock (other than including any such payment in connection with any merger or consolidation to which the Parent Borrower is a party) except (x) dividends or distributions payable solely in shares of its Capital Stock (other than Disqualified Stock) or in options, warrants or other rights to acquire shares of such Capital Stock and (y) pro rata dividends or distributions on Common Stock of payable to the Parent Borrower or any Restricted Subsidiaries held by minority stockholdersSubsidiary (and, provided that such dividends do not in the aggregate exceed the minority stockholders' case of any such Restricted Subsidiary making such dividend or distribution, to other holders of its Capital Stock on no more than a pro rata share of such Restricted Subsidiaries' net income from the first day of the fiscal quarter beginning immediately following the Closing Date) held basis, measured by Persons other than the Company or any of its Restricted Subsidiariesvalue), (ii) purchase, redeem, retire or otherwise acquire for value any shares of Capital Stock of the Company, any Subsidiary Guarantor or an Unrestricted Subsidiary (including options, warrants or other rights to acquire such shares of Capital Stock) Parent Borrower held by Persons other than the Company and its Wholly Owned SubsidiariesParent Borrower or a Restricted Subsidiary (other than any acquisition of Capital Stock deemed to occur upon the exercise of options if such Capital Stock represents a portion of the exercise price thereof), (iii) make any voluntary pay or optional prepay principal, interest or otherwise on the Shareholder Loans or Subordinated Debt Funding (other than payment of interest by increasing the principal payment, amount of such Shareholder Loans or voluntary Subordinated Debt Funding) or optional redemptionotherwise purchase, repurchase, defeasanceredeem, defease or otherwise acquire or retire for value, prior to scheduled maturity, scheduled repayment or scheduled sinking fund payment, Shareholder Loans or Subordinated Debt Funding, (iv) voluntarily purchase, repurchase, redeem, defease or otherwise voluntarily acquire or retire for value, prior to scheduled maturity, scheduled repayment or scheduled sinking fund payment, any Junior Debt (other than a purchase, repurchase, redemption, defeasance or other acquisition or retirement for value, of Indebtedness of the Company that is subordinated in right of payment to the Notes or of any Subsidiary Guarantor that is subordinated to the Subsidiary Guaranties (other than, in each case, the purchase, repurchase or the acquisition of Indebtedness value in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in any each case due within one year of the date of acquisitionsuch purchase, repurchase, redemption, defeasance or other acquisition or retirement) or (ivv) make any Investment, Investment (other than a Permitted Investment, ) in any Person (any such payments dividend, distribution, purchase, repurchase, redemption, defeasance, other acquisition or any other actions described in clauses (i) through (iv) retirement or Investment being collectively "RESTRICTED PAYMENTS") ifherein referred to as a “Restricted Payment”), if at the time of, and the Parent Borrower or such Restricted Subsidiary makes such Restricted Payment after giving effect to, the proposed Restricted Payment: (A) an Event of Default shall have occurred and be continuing, (B) except with respect to Investments in Restricted Subsidiaries and dividends on the Common Stock of any Subsidiary Guarantor paid to the Company or any Restricted Subsidiary, the Company could not Incur at least $1.00 of Indebtedness under the first sentence of paragraph (a) of Section 4.03 or (C) the aggregate amount of all Restricted Payments (the amount, if other than in cash, to be determined in good faith by the Board of Directors, whose determination shall be conclusive and evidenced by a Board Resolution) made after the Closing Date (after giving pro forma effect to the proposed Restricted Payment) shall exceed the sum of (1) 50% of the aggregate amount of the Adjusted Consolidated Net Income (or, if the Adjusted Consolidated Net Income is a loss, minus 100% of the amount of such loss) (determined by excluding income resulting from transfers of assets by the Company or a Restricted Subsidiary to an Unrestricted Subsidiary) accrued on a cumulative basis during the period (taken as one accounting period) beginning on the first day of the fiscal quarter immediately following the Closing Date and ending on the last day of the last fiscal quarter preceding the Transaction Date for which reports have been filed pursuant to Section 4.18 plus (2) the aggregate amount of Designated Equity Proceeds received by the Company after the Closing Date, except to the extent such amount of Designated Equity Proceeds is used as a basis to Incur Indebtedness pursuant to clause (i) or (viii) of paragraph (a) under Section 4.03, plus (3) an amount equal to the net reduction in Investments (other than reductions in Permitted Investments) in any Person resulting from payments of interest on Indebtedness, dividends, repayments of loans or advances, or other transfers of assets, in each case to the Company or any Restricted Subsidiary or from the Net Cash Proceeds from the sale of any such Investment (except, in each case, to the extent any such payment or proceeds are included in the calculation of Adjusted Consolidated Net Income), or from redesignations of Unrestricted Subsidiaries as Restricted Subsidiaries (valued in each case as provided in the definition of "Investments"), not to exceed, in each case, the amount of Investments previously made by the Company or any Restricted Subsidiary in such Person or Unrestricted Subsidiary.thereto:

Limitation on Restricted Payments. (a) The Company will not, and will not permit any Restricted Subsidiary, directly or indirectly, to (i) declare or pay any dividend or make any distribution on or with respect to its Capital Stock (other than (x) dividends or distributions payable solely in shares of its Capital Stock (other than Disqualified Stock) or in options, warrants or other rights to acquire shares of such Capital Stock and (y) pro rata dividends or distributions on Common Stock of Restricted Subsidiaries held by minority stockholders, provided that such dividends do not in the aggregate exceed the minority stockholders' pro rata share of such Restricted Subsidiaries' net income from the first day of the fiscal quarter beginning immediately following the Closing Date) held by Persons other than the Company or any of its Restricted Subsidiaries, (ii) purchase, redeem, retire or otherwise acquire for value any shares of Capital Stock of the Company, any Subsidiary Guarantor or an Unrestricted Subsidiary (including options, warrants or other rights to acquire such shares of Capital Stock) held by Persons other than the Company and its Wholly Owned Subsidiaries, (iii) make any voluntary or optional principal payment, or voluntary or optional redemption, repurchase, defeasance, or other acquisition or retirement for value, of Indebtedness of the Company that is subordinated in right of payment to the Notes Debentures or of any Subsidiary Guarantor that is subordinated to the Subsidiary Guaranties Guarantee (other than, in each case, the purchase, repurchase or the acquisition of Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in any case due within one (1) year of the date of acquisition) or (iv) make any Investment, other than a Permitted Investment, in any Person (such payments or any other actions described in clauses (i) through (iv) being collectively "RESTRICTED PAYMENTSRestricted Payments") if, at the time of, and after giving effect to, the proposed Restricted Payment: (A) an a Potential Event of Default or Event of Default shall have occurred and be continuing, (B) except with respect to Investments in Restricted Subsidiaries and dividends on the Common Stock of any Subsidiary Guarantor paid to the Company or any Restricted SubsidiaryGuarantor, the Company could not Incur at least $1.00 of Indebtedness under the first sentence of paragraph (a) of Section 4.03 13.5 or (C) the aggregate amount of all Restricted Payments (the amount, if other than in cash, to be determined in good faith by the Board of Directors, whose determination shall be conclusive and evidenced by a Board Resolution) made after the Closing Date (after giving pro forma effect to the proposed Restricted Payment) shall exceed the sum of (1) fifty percent (50% %) of the aggregate amount of the Adjusted Consolidated Net Income (or, or if the Adjusted Consolidated Net Income is a loss, minus 100% of the amount of such loss) (determined by excluding income resulting from transfers of assets by the Company or a Restricted Subsidiary to an Unrestricted Subsidiary) accrued on a cumulative basis during the period (taken as one (1) accounting period) beginning on the first day of the fiscal quarter immediately following the Closing Date and ending on the last day of the last fiscal quarter preceding the Transaction Date for which reports have been filed pursuant to Section 4.18 with the Commission plus (2) the aggregate amount of Designated Equity Net Cash Proceeds received by the Company or any Guarantor after the Closing DateDate from the issuance and sale permitted by this Agreement of its Capital Stock (other than Disqualified Stock) to a Person who is not a Subsidiary of the Company or any Guarantor or from the issuance to a Person who is not a Subsidiary of the Company or any Guarantor of any options, warrants or other rights to acquire Capital Stock of the Company (in each case, exclusive of any Disqualified Stock or any options, warrants or other rights that are redeemable at the option of the holder, or are required to be redeemed, prior to the Stated Maturity of the Debentures), in each case except to the extent such amount of Designated Equity Net Cash Proceeds is are used as a basis to Incur Indebtedness pursuant to clause (i) or (viii) of the second paragraph (a) under of Section 4.0313.5, plus (3) an amount equal to the net reduction in Investments (other than reductions in Permitted Investments) in any Person resulting from payments of interest on Indebtedness, dividends, repayments of loans or advances, or other transfers of assets, in each case to the Company or any Restricted Subsidiary or from the Net Cash Proceeds from the sale of any such Investment (except, in each case, to the extent any such payment or proceeds are included in the calculation of Adjusted Consolidated Net Income), or from redesignations of Unrestricted Subsidiaries as Restricted Subsidiaries (valued in each case as provided in the definition of "Investments"), not to exceed, in each case, the amount of Investments previously made by the Company or any Restricted Subsidiary in such Person or Unrestricted Subsidiary. The foregoing provision shall not be violated by reason of: (i) the payment of any dividend within sixty (60) days after the date of declaration thereof if, at said date of declaration, such payment would comply with the foregoing paragraph; (ii) the redemption, repurchase, defeasance or other acquisition or retirement for value of Indebtedness that is subordinated in right of payment to the Debentures including premium, if any, and accrued and unpaid interest, with the proceeds of, or in exchange for, Indebtedness Incurred under clause (iii) of the second paragraph of part (a) of Section 13.5; (iii) the repurchase, redemption or other acquisition of Capital Stock of the Company (or options, warrants or other rights to acquire such Capital Stock) in exchange for, or out of the proceeds of a substantially concurrent offering of, shares of Capital Stock (other than Disqualified Stock) of the Company; (iv) the making of any principal payment or the repurchase, redemption, retirement, defeasance or other acquisition for value of Indebtedness of the Company which is subordinated in right of payment to the Debentures in exchange for, or out of the proceeds of, a substantially concurrent offering of, shares of the Capital Stock of the Company (other than Disqualified Stock); (v) payments or distributions, to dissenting stockholders pursuant to applicable law, pursuant to or in connection with a consolidation, merger or transfer of assets that complies with the provisions of this Agreement applicable to mergers, consolidations and transfers of all or substantially all of the property and assets of the Company; (vi) the repurchase, redemption or other acquisition of (A) shares of Series A Preferred Stock or Series B Preferred Stock which were outstanding on the Closing Date and (B) shares of Preferred Stock pursuant to options that were outstanding on the Closing Date, in exchange for, or out of the proceeds of, an issuance of Indebtedness Incurred under clause (iii) of the second paragraph of part (a) of Section 13.5; (vii) Investments, to the extent the amount invested consists solely of Net Cash Proceeds received by the Company or any Guarantor within six months of the making of such Investment, from the issuance and sale permitted by this Agreement of its Capital Stock (other than Disqualified Stock) to a Person who is not a Subsidiary of the Company or any Guarantor; (viii) Investments, the sum of which does not exceed $5 million at any one time outstanding; (ix) cash payments, not to exceed $3 million, in lieu of the issuance of fractional shares of Capital Stock of the Company upon the exercise of any warrants to buy, or upon the conversion of any securities convertible into, Capital Stock of the Company or (x) the purchase, redemption, retirement or other acquisition for value of the warrants issued to the holders of the Senior Notes in connection with their acquisition of the Senior Notes pursuant to a repurchase offer provided for in the warrant agreement, dated as of January 31, 1997, between the Company and Bankers Trust Company as warrant agent; provided that, except in the case of clauses (i) and (iii), no Potential Event of Default or Event of Default shall have occurred and be continuing or occur as a consequence of the actions or payments set forth therein. Each Restricted Payment permitted pursuant to the preceding paragraph (other than the Restricted Payment referred to in clause (ii) thereof and an exchange of Capital Stock for Capital Stock or Indebtedness referred to in clause (iii) or (iv) thereof) and the Net Cash Proceeds from any issuance of Capital Stock referred to in clauses (iii) and (iv) shall be included in calculating whether the conditions of clause (C) of the first paragraph of this Section 13.6 have been met with respect to any subsequent Restricted Payments. In the event the proceeds of an issuance of Capital Stock of the Company are used for the redemption, repurchase or other acquisition of the Debentures, or Indebtedness that is pari passu with the Debentures, then the Net Cash Proceeds of such issuance shall be included in clause (C) of the first paragraph of this Section 13.6 only to the extent such proceeds are not, within six months, used for such redemption, repurchase or other acquisition of Indebtedness. Any Restricted Payments made other than in cash shall be valued at fair market value. The amount of any Investment "outstanding" at any time shall be deemed to be equal to the amount of such Investment on the date made, less the return of capital to the Company and its Restricted Subsidiaries with respect to such Investment (up to the amount of such Investment on the date made).

Limitation on Restricted Payments. (a) The Company will shall not, and will shall not permit any of its Restricted SubsidiarySubsidiaries to, directly or indirectly, to (i) declare or pay any dividend or make any other payment or distribution on account of the Company’s Equity Interests (including, without limitation, any payment in connection with any merger or with respect consolidation involving the Company) or to its Capital Stock any direct or indirect holders of the Company’s Equity Interests in their capacity as such (other than (x) dividends or distributions (a) payable solely in shares of its Capital Stock Equity Interests (other than Disqualified Stock) or of the Company, (b) payable in options, warrants or other rights to acquire shares of such Capital Stock and (y) pro rata dividends or distributions on Common Stock assets of Restricted Subsidiaries held by minority stockholders, provided that such dividends do not in the aggregate exceed the minority stockholders' pro rata share of such Restricted Subsidiaries' net income from the first day an Unrestricted Subsidiary of the fiscal quarter beginning immediately following the Closing DateCompany or (c) held by Persons other than payable to the Company or any Restricted Subsidiary of its the Company or to all holders of Capital Stock of a Restricted Subsidiaries, Subsidiary on a pro rata basis); (ii) purchase, redeem, retire redeem or otherwise acquire or retire for value (including, without limitation, in connection with any shares of Capital Stock merger or consolidation involving the Company) any Equity Interests of the Company, or any Equity Interests of any of its Restricted Subsidiaries (other than (a) any such Equity Interests owned by the Company or any Restricted Subsidiary Guarantor of the Company, (b) any Equity Interests then being issued by the Company or an Unrestricted a Restricted Subsidiary of the Company, (including optionsc) any Investment in a Person that, warrants after giving effect to such Investment, is a Restricted Subsidiary of the Company or (d) any purchase, redemption or other rights to acquire acquisition of other Equity Interests made by a Restricted Subsidiary on a pro rata basis from all shareholders of such shares of Capital Stock) held by Persons other than the Company and its Wholly Owned Subsidiaries, Restricted Subsidiary); (iii) make any voluntary payment on or optional principal paymentwith respect to, or voluntary purchase, redeem, repay, defease or optional redemption, repurchase, defeasance, otherwise acquire or other acquisition or retirement retire for value, of any Indebtedness of the Company or any Guarantor that is subordinated in right of payment to the Notes or any Guarantee thereof, excluding (a) any intercompany Indebtedness between or among the Company and any of any Subsidiary Guarantor that is subordinated to its Restricted Subsidiaries, (b) a regularly scheduled payment of interest or principal or sinking fund payment or (c) the Subsidiary Guaranties (purchase or other than, in each case, the purchase, repurchase or the acquisition of such subordinated Indebtedness made in anticipation of satisfying a any sinking fund obligation, principal installment or final maturity, in any case payment due within one year of from the date of acquisition) ; or (iv) make any Investment, other than a Permitted Investment, in any Person Restricted Investment (all such payments or any and other actions described set forth in clauses (i) through (iv) above being collectively "RESTRICTED PAYMENTS") ifreferred to as “Restricted Payments”), unless, at the time of, of and after giving effect to, the proposed to such Restricted Payment: (A) an Event of Default shall have occurred and be continuing, (B) except with respect to Investments in Restricted Subsidiaries and dividends on the Common Stock of any Subsidiary Guarantor paid to the Company or any Restricted Subsidiary, the Company could not Incur at least $1.00 of Indebtedness under the first sentence of paragraph (a) of Section 4.03 or (C) the aggregate amount of all Restricted Payments (the amount, if other than in cash, to be determined in good faith by the Board of Directors, whose determination shall be conclusive and evidenced by a Board Resolution) made after the Closing Date (after giving pro forma effect to the proposed Restricted Payment) shall exceed the sum of (1) 50% of the aggregate amount of the Adjusted Consolidated Net Income (or, if the Adjusted Consolidated Net Income is a loss, minus 100% of the amount of such loss) (determined by excluding income resulting from transfers of assets by the Company or a Restricted Subsidiary to an Unrestricted Subsidiary) accrued on a cumulative basis during the period (taken as one accounting period) beginning on the first day of the fiscal quarter immediately following the Closing Date and ending on the last day of the last fiscal quarter preceding the Transaction Date for which reports have been filed pursuant to Section 4.18 plus (2) the aggregate amount of Designated Equity Proceeds received by the Company after the Closing Date, except to the extent such amount of Designated Equity Proceeds is used as a basis to Incur Indebtedness pursuant to clause (i) or (viii) of paragraph (a) under Section 4.03, plus (3) an amount equal to the net reduction in Investments (other than reductions in Permitted Investments) in any Person resulting from payments of interest on Indebtedness, dividends, repayments of loans or advances, or other transfers of assets, in each case to the Company or any Restricted Subsidiary or from the Net Cash Proceeds from the sale of any such Investment (except, in each case, to the extent any such payment or proceeds are included in the calculation of Adjusted Consolidated Net Income), or from redesignations of Unrestricted Subsidiaries as Restricted Subsidiaries (valued in each case as provided in the definition of "Investments"), not to exceed, in each case, the amount of Investments previously made by the Company or any Restricted Subsidiary in such Person or Unrestricted Subsidiary.:

Limitation on Restricted Payments. (a) The Company will shall not, and will shall not permit any Restricted Subsidiary, directly or indirectly, to (i) declare or pay any dividend or dividend, make any distribution on or with in respect to of its Capital Stock or make any similar payment (other than including any payment of Patronage or any payment in connection with any merger or consolidation involving the Company or any Subsidiary of the Company) to the direct or indirect holders of its Capital Stock, except (x1) dividends or distributions payable solely in shares of its Capital Stock (other than Disqualified Stock or Preferred Stock), (2) or in options, warrants or other rights to acquire shares of such Capital Stock and (y) pro rata dividends or distributions payable to the Company or a Restricted Subsidiary (and, if such Restricted Subsidiary has shareholders other than the Company or other Restricted Subsidiaries, to its other shareholders on Common a pro rata basis) and (3) dividends paid in respect of the Capital Securities, (ii) purchase, repurchase, redeem, retire, make any revolvement payment or otherwise acquire for value any Capital Stock of the Company or any Restricted Subsidiaries held by minority stockholders, provided that such dividends do not in the aggregate exceed the minority stockholders' pro rata share of such Restricted Subsidiaries' net income from the first day of the fiscal quarter beginning immediately following the Closing Date) Subsidiary held by Persons other than the Company or any of its a Restricted SubsidiariesSubsidiary (it being understood that amounts owed from Members that can be offset against Patronage payable to such Members shall be deemed not to be covered by this clause (ii)), (iiiii) purchase, repurchase, redeem, retire retire, defease or otherwise acquire for value value, prior to scheduled maturity, scheduled repayment or scheduled sinking fund payment any shares of Subordinated Obligations or any Indebtedness owed to the trust entity that has issued the Capital Stock of the Company, any Subsidiary Guarantor or an Unrestricted Subsidiary Securities (including options, warrants or other rights to acquire such shares of Capital Stock) held by Persons other than the Company and its Wholly Owned Subsidiaries, (iii) make any voluntary or optional principal payment, or voluntary or optional redemptionpurchase, repurchase, defeasanceredemption, retirement, defeasance or other acquisition or retirement for value, value of Indebtedness of the Company that is subordinated in right of payment to the Notes or of any Subsidiary Guarantor that is subordinated to the Subsidiary Guaranties (other than, in each case, the purchase, repurchase or the acquisition of Indebtedness Subordinated Obligations acquired in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in any each case due within one year of the date of acquisition) or (iv) make any Investment, Investment (other than a Permitted Investment, ) in any Person (such payments any dividend, distribution, payment, purchase, redemption, repurchase, defeasance, retirement, other acquisition or any other actions Investment described in clauses the foregoing items (i), (ii), (iii) through and (iv) being collectively herein referred to as a "RESTRICTED PAYMENTSRestricted Payment") if, if at the time of, and after giving effect to, the proposed Restricted Payment: (A) an Event of Default shall have occurred and be continuing, (B) except with respect to Investments in Restricted Subsidiaries and dividends on the Common Stock of any Subsidiary Guarantor paid to the Company or any such Restricted Subsidiary, the Company could not Incur at least $1.00 of Indebtedness under the first sentence of paragraph (a) of Section 4.03 or (C) the aggregate amount of all Restricted Payments (the amount, if other than in cash, to be determined in good faith by the Board of Directors, whose determination shall be conclusive and evidenced by a Board Resolution) made after the Closing Date (after giving pro forma effect to the proposed Subsidiary makes such Restricted Payment) shall exceed the sum of (1) 50% of the aggregate amount of the Adjusted Consolidated Net Income (or, if the Adjusted Consolidated Net Income is a loss, minus 100% of the amount of such loss) (determined by excluding income resulting from transfers of assets by the Company or a Restricted Subsidiary to an Unrestricted Subsidiary) accrued on a cumulative basis during the period (taken as one accounting period) beginning on the first day of the fiscal quarter immediately following the Closing Date and ending on the last day of the last fiscal quarter preceding the Transaction Date for which reports have been filed pursuant to Section 4.18 plus (2) the aggregate amount of Designated Equity Proceeds received by the Company after the Closing Date, except to the extent such amount of Designated Equity Proceeds is used as a basis to Incur Indebtedness pursuant to clause (i) or (viii) of paragraph (a) under Section 4.03, plus (3) an amount equal to the net reduction in Investments (other than reductions in Permitted Investments) in any Person resulting from payments of interest on Indebtedness, dividends, repayments of loans or advances, or other transfers of assets, in each case to the Company or any Restricted Subsidiary or from the Net Cash Proceeds from the sale of any such Investment (except, in each case, to the extent any such payment or proceeds are included in the calculation of Adjusted Consolidated Net Income), or from redesignations of Unrestricted Subsidiaries as Restricted Subsidiaries (valued in each case as provided in the definition of "Investments"), not to exceed, in each case, the amount of Investments previously made by the Company or any Restricted Subsidiary in such Person or Unrestricted Subsidiary.:

Limitation on Restricted Payments. (a) The Company will shall not, and will shall cause its Restricted Subsidiaries not permit any Restricted Subsidiaryto, directly or indirectly, to (i) declare or pay any dividend on, or make any distribution on or with respect to its the holders of, any Capital Stock (of the Company, other than (x) dividends or distributions payable solely in shares of its Capital Stock of the Company (other than Disqualified Stock) or in options, warrants or other rights to acquire shares of such Capital Stock and (y) pro rata dividends or distributions on Common Capital Stock (other than Disqualified Stock) of its Restricted Subsidiaries; (ii) repay, redeem or otherwise acquire or retire for value (other than through the issuance of Capital Stock of Restricted Subsidiaries held by minority stockholders, provided that such dividends do not in the aggregate exceed the minority stockholders' pro rata share Company (excluding Disqualified Stock)) any Capital Stock of such Restricted Subsidiaries' net income from the first day of the fiscal quarter beginning immediately following the Closing Date) held by Persons other than the Company or any of its Restricted Subsidiaries, other than any such repayment, redemption, acquisition or retirement of such Capital Stock held by (iix) purchasethe Company or its Restricted Subsidiaries or (y) in the case of Capital Stock of a Restricted Subsidiary of the Company, any Person that is not an Affiliate (other than another Restricted Subsidiary) of the Company; (iii) prepay, repay, redeem, retire defease or otherwise acquire or retire for value any shares (other than through the issuance of Capital Stock of the CompanyCompany (excluding Disqualified Stock)), prior to any scheduled maturity, scheduled repayment or scheduled sinking fund payment, any Subsidiary Guarantor or an Unrestricted Subsidiary (including options, warrants or other rights to acquire such shares of Capital Stock) held by Persons other than the Company and its Wholly Owned Subsidiaries, (iii) make any voluntary or optional principal payment, or voluntary or optional redemption, repurchase, defeasance, or other acquisition or retirement for value, of Indebtedness of the Company or any of its Restricted Subsidiaries that is subordinated ranks junior in right of payment to the Notes or of any Subsidiary Guarantor that is subordinated the Guarantees, as applicable, except as permitted pursuant to the Subsidiary Guaranties (other than, in each case, the purchase, repurchase or the acquisition of Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in any case due within one year of the date of acquisition) Section 5.14(b)(vii); or (iv) make any Investment, Investment in any Affiliate of the Company other than a Permitted Investment(A) an Investment by the Company or any of its Restricted Subsidiaries in the Company or any such Restricted Subsidiaries or in TFM, or in any Person Subsidiary in connection with a Qualifying PEMEX Securitization Transaction, or (such payments B) an Investment by the Company or any other Restricted Subsidiary consisting of non-cash consideration received in connection with a Qualifying Disposition (the foregoing actions described set forth in clauses (i) through (iv), being referred to hereinafter as “Restricted Payments”) being collectively "RESTRICTED PAYMENTS") if, if at the time ofof any such Restricted Payment, and after giving effect tothereto on a pro forma basis, the proposed Restricted Payment: (A1) a Default or an Event of Default shall have occurred and be continuing, (B2) except with respect to Investments in Restricted Subsidiaries and dividends on a pro forma basis, the Common Stock of any Subsidiary Guarantor paid to Consolidated Debt Service Coverage Ratio for the Company or any Restricted Subsidiaryfor the four fiscal quarters immediately preceding such incurrence for which quarterly financial statements are available in accordance with Section 5.08, the Company could not Incur at least $1.00 of Indebtedness under the first sentence of paragraph (a) of Section 4.03 taken as one period, is greater than 2.0 to 1.0, or (C3) the aggregate amount of all Restricted Payments declared or made after the Initial Issuance Date including such Restricted Payment (the amountvalue of any such payment, if other than in cash, to shall be the value determined in good faith by the Board of Directors, whose determination shall be conclusive Directors and evidenced by a Board Resolution) made after the Closing Date (after giving pro forma effect to the proposed Restricted Payment) shall exceed the sum of (1) 50% of the aggregate amount of the Adjusted Consolidated Net Income (or, if the Adjusted Consolidated Net Income is a loss, minus 100% of the amount of such loss) (determined by excluding income resulting from transfers of assets by the Company or a Restricted Subsidiary to an Unrestricted Subsidiary) accrued on a cumulative basis during the period (taken as one accounting period) beginning on the first day of the fiscal quarter immediately following the Closing Date and ending on the last day of the last fiscal quarter preceding the Transaction Date for which reports have been filed pursuant to Section 4.18 plus (2) the aggregate amount of Designated Equity Proceeds received by the Company after the Closing Date, except to the extent such amount of Designated Equity Proceeds is used as a basis to Incur Indebtedness pursuant to clause (i) or (viii) of paragraph (a) under Section 4.03, plus (3) an amount equal to the net reduction in Investments (other than reductions in Permitted Investments) in any Person resulting from payments of interest on Indebtedness, dividends, repayments of loans or advances, or other transfers of assets, in each case to the Company or any Restricted Subsidiary or from the Net Cash Proceeds from the sale of any such Investment (except, in each case, to the extent any such payment or proceeds are included in the calculation of Adjusted Consolidated Net Income), or from redesignations of Unrestricted Subsidiaries as Restricted Subsidiaries (valued in each case as provided in the definition of "Investments"), not to exceed, in each case, the amount of Investments previously made by the Company or any Restricted Subsidiary in such Person or Unrestricted Subsidiary.of:

Limitation on Restricted Payments. (a) The Company will not, and will not cause or permit any Restricted SubsidiarySubsidiary to, directly or indirectly, to (i) : declare or pay any dividend on, or make any distribution on or with respect to its holders of, any shares of the Company’s Capital Stock (other than (x) dividends or distributions payable solely in shares of its Qualified Capital Stock (other than Disqualified Stock) or in options, warrants or other rights to acquire shares of such Qualified Capital Stock and (y) pro rata dividends or distributions on Common Stock of Restricted Subsidiaries held by minority stockholders, provided that such dividends do not in the aggregate exceed the minority stockholders' pro rata share of such Restricted Subsidiaries' net income from the first day of the fiscal quarter beginning immediately following the Closing Date) held by Persons other than the Company or any of its Restricted Subsidiaries, (ii) Stock); purchase, redeem, retire defease or otherwise acquire or retire for value any (except for redemptions payable in shares of the Company’s Qualified Capital Stock or in options, warrants or other rights to acquire shares of such Qualified Capital Stock), directly or indirectly, the Company’s Capital Stock or any Capital Stock of any Affiliate of the Company (other than Capital Stock of any Wholly Owned Restricted Subsidiary of the Company, any Subsidiary Guarantor ) or an Unrestricted Subsidiary (including options, warrants or other rights to acquire such shares of Capital Stock) held ; other than, to the extent applicable, as contemplated by Persons any applicable intercompany note substantially in the form of Annex A hereto, make any principal payment on, or repurchase, redeem, defease, retire or otherwise acquire for value, prior to any scheduled principal payment, sinking fund payment or maturity, any Subordinated Indebtedness or any Indebtedness evidenced by the ViSalus Promissory Notes; declare or pay any dividend or distribution on any Capital Stock of any Restricted Subsidiary to any Person (other than (a) to the Company and or any of its Wholly Owned SubsidiariesRestricted Subsidiaries or (b) dividends or distributions made by a Restricted Subsidiary on a pro rata basis to all stockholders (or other holders of Capital Stock of) of such Restricted Subsidiary, (iii) including by ViSalus to its stockholders in accordance with ViSalus’s articles of incorporation); or make any voluntary or optional principal payment, or voluntary or optional redemption, repurchase, defeasance, or other acquisition or retirement for value, of Indebtedness of the Company that is subordinated in right of payment to the Notes or of any Subsidiary Guarantor that is subordinated to the Subsidiary Guaranties (other than, in each case, the purchase, repurchase or the acquisition of Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in any case due within one year of the date of acquisition) or (iv) make any Investment, other than a Permitted Investment, Investment in any Person (such payments or other than any other Permitted Investments) (any of the foregoing actions described in clauses (i) through (ivv) being collectively "RESTRICTED PAYMENTS"above, other than any such action that is a Permitted Payment (as defined below), collectively, “Restricted Payments”) if(the amount of any such Restricted Payment, at if other than cash, shall be the time ofFair Market Value of the assets proposed to be transferred), unless: immediately before and immediately after giving effect to, the to such proposed Restricted Payment: (A) an Payment on a pro forma basis, no Default or Event of Default shall have occurred and be continuing, (B) except with respect ; immediately before and immediately after giving effect to Investments in such Restricted Subsidiaries and dividends Payment on the Common Stock of any Subsidiary Guarantor paid to the Company or any Restricted Subsidiarya pro forma basis, the Company could not Incur at least incur $1.00 of additional Indebtedness (other than Permitted Indebtedness) under the first sentence provisions of paragraph clause (a) of Section 4.03 or (C) the aggregate amount of all Restricted Payments (the amount, if other than in cash, to be determined in good faith by the Board of Directors, whose determination shall be conclusive 10.08; and evidenced by a Board Resolution) made after the Closing Date (after giving pro forma effect to the proposed Restricted Payment) shall , the aggregate amount of all such Restricted Payments declared or made after the Issue Date and all Designation Amounts does not exceed the sum of (1the “Restricted Payment Basket”) of: 50% of the aggregate amount of the Adjusted Consolidated Net Income (or, if the Adjusted Consolidated Net Income is a loss, minus 100% of the amount of such loss) (determined by excluding income resulting from transfers of assets by the Company or a Restricted Subsidiary to an Unrestricted Subsidiary) accrued on a cumulative basis during the period (taken as one accounting period) beginning on the first day of the Company’s fiscal quarter immediately following beginning after the Closing Issue Date and ending on the last day of the Company’s last fiscal quarter preceding ending prior to the Transaction Date for which reports have been filed pursuant to Section 4.18 plus date of the Restricted Payment (2) or, if such aggregate cumulative Consolidated Net Income shall be a loss, minus 100% of such loss); the aggregate amount of Designated Equity Net Cash Proceeds received after the Issue Date by the Company after either (I) as capital contributions in the Closing Date, except to the extent such amount form of Designated Equity Proceeds is used as a basis to Incur Indebtedness pursuant to clause (i) or (viii) of paragraph (a) under Section 4.03, plus (3) an amount equal to the net reduction in Investments (other than reductions in Permitted Investments) in any Person resulting from payments of interest on Indebtedness, dividends, repayments of loans or advances, or other transfers of assets, in each case common equity to the Company or any Restricted Subsidiary or (II) from the Net Cash Proceeds from issuance or sale (other than to any of its Subsidiaries) of Qualified Capital Stock of the sale Company or any options, warrants or rights to purchase such Qualified Capital Stock of any such Investment the Company (except, in each case, to the extent any such payment or proceeds are used to purchase, redeem or otherwise retire Capital Stock or Subordinated Indebtedness as set forth below in clause (ii) or (iii) of paragraph (b) below) (and excluding the Net Cash Proceeds from the issuance of Qualified Capital Stock financed, directly or indirectly, using funds borrowed from the Company or any Subsidiary until and to the extent such borrowing is repaid); the aggregate Net Cash Proceeds received after the Issue Date by the Company (other than from any of its Subsidiaries) upon the exercise of any options, warrants or rights to purchase Qualified Capital Stock of the Company (and excluding the Net Cash Proceeds from the exercise of any options, warrants or rights to purchase Qualified Capital Stock financed, directly or indirectly, using funds borrowed from the Company or any Subsidiary until and to the extent such borrowing is repaid); the aggregate Net Cash Proceeds received after the Issue Date by the Company from the conversion or exchange, if any, of debt securities or Disqualified Capital Stock of the Company or its Restricted Subsidiaries into or for Qualified Capital Stock of the Company plus, to the extent such debt securities or Disqualified Capital Stock were issued after the Issue Date, the aggregate of Net Cash Proceeds from their original issuance (and excluding the Net Cash Proceeds from the conversion or exchange of debt securities or Disqualified Capital Stock financed, directly or indirectly, using funds borrowed from the Company or any Subsidiary until and to the extent such borrowing is repaid); in the case of the disposition or repayment of any Investment constituting a Restricted Payment made after the Issue Date, an amount (to the extent not already included in the calculation of Adjusted Consolidated Net Income) equal to the cash return of capital with respect to such Investment, less the cost of the disposition of such Investment and net of taxes; and in the case of the designation of an Unrestricted Subsidiary as a Restricted Subsidiary (as long as the designation of such Subsidiary as an Unrestricted Subsidiary was deemed a Restricted Payment), the Fair Market Value of the Company’s interest in such Subsidiary; provided that such amount shall not in any case exceed the amount of the Restricted Payment deemed made at the time the Subsidiary was designated as an Unrestricted Subsidiary; provided that Restricted Payments for (I) the repurchase, retirement or other acquisition or retirement for value of the Company’s Capital Stock (but not ViSalus’s Capital Stock) and/or (II) the payment of cash dividends on the Company’s Capital Stock (but not ViSalus’s Capital Stock) shall only be made (x) if and to the extent there are any unused amounts available under the Restricted Payments Basket at the time of such Restricted Payment (and any such Restricted Payment shall be counted as a usage of the Restricted Payment Basket), (y) if the Company and its Restricted Subsidiaries have no less than $50.0 million of unrestricted cash, cash equivalents and short term investments on their consolidated balance sheet as of the most recently ended fiscal quarter prior to any such Restricted Payment and without giving effect to such Restricted Payment and (z) if the aggregate amount of Restricted Payments made under clauses (I) and (II) of this proviso shall not exceed in any fiscal year $12.5 million (with unused amounts in any fiscal year being carried over to succeeding fiscal years); Notwithstanding the foregoing, and in the case of clauses (ii) through (iv) and (vi) and (vii) below, so long as no Default or Event of Default is continuing or would arise therefrom, the foregoing provisions shall not prohibit the following actions (each of clauses (i) through (vii) being referred to as a “Permitted Payment”), but subject to the first proviso in clause (c) of this Section 10.09: the payment of any dividend within 75 days after the date of declaration thereof, if at such date of declaration such payment was permitted by the provisions of this Indenture, including paragraph (a) of this Section, and such payment shall have been deemed to have been paid on such date of declaration and shall not have been deemed a “Permitted Payment” for purposes of the calculation required by paragraph (a) of this Section 10.09; the repurchase, redemption, or other acquisition or retirement for value of any shares of any class of Capital Stock of the Company in exchange for (including any such exchange pursuant to the exercise of a conversion right or privilege in connection with which cash is paid in lieu of the issuance of fractional shares), or out of the Net Cash Proceeds of a substantially concurrent issuance and sale for cash (other than to a Subsidiary) of, other shares of Qualified Capital Stock of the Company; provided that the Net Cash Proceeds from redesignations the issuance of Unrestricted Subsidiaries such shares of Qualified Capital Stock are excluded from clause (3)(B) of paragraph (a) of this Section 10.09; the repurchase, redemption, defeasance, retirement or acquisition for value or payment of principal of any Subordinated Indebtedness in exchange for, or in an amount not in excess of the Net Cash Proceeds of, a substantially concurrent issuance and sale for cash (other than to any Subsidiary of the Company) of any Qualified Capital Stock of the Company; provided that the Net Cash Proceeds from the issuance of such shares of Qualified Capital Stock are excluded from clause (3)(B) of paragraph (a) of this Section 10.09; the repurchase, redemption, defeasance, retirement, refinancing, acquisition for value or payment of principal of any Subordinated Indebtedness (other than Disqualified Capital Stock) (as Restricted Subsidiaries used in this subclause, a “refinancing”) through the substantially concurrent issuance of new Subordinated Indebtedness of the Company; provided that any such new Subordinated Indebtedness (valued A) shall be in each case a principal amount that does not exceed the principal amount so refinanced (or, if such Subordinated Indebtedness provides for an amount less than the principal amount thereof to be due and payable upon a declaration of acceleration thereof, then such lesser amount as provided in of the definition date of "Investments"determination), not plus the lesser of (1) the stated amount of any premium or other payment required to exceedbe paid in connection with such a refinancing pursuant to the terms of the Indebtedness being refinanced or (2) the amount of premium or other payment actually paid at such time to refinance the Indebtedness, plus, in each either case, the amount of Investments previously made by expenses of the Company incurred in connection with such refinancing; (B) has an Average Life to Stated Maturity greater than the remaining Average Life to Stated Maturity of the Securities; (C) has a Stated Maturity for its final scheduled principal payment later than the Stated Maturity for the final scheduled principal payment of the Securities; and (D) is expressly subordinated in right of payment to the Securities at least to the same extent as the Subordinated Indebtedness to be refinanced; [Intentionally Omitted];the ViSalus Recapitalization; the Blyth October 2013 Dividend; and repurchases of Capital Stock and all warrants, options or other rights to acquire Capital Stock, deemed to occur upon the exercise of any options, warrants, convertible securities, or settlement of any restricted stock or restricted stock units, if the Capital Stock represents a portion of the exercise price of such options, warrants, convertible securities, restricted stock or restricted stock units and repurchases of Capital Stock deemed to occur upon the withholding of a portion of the Capital Stock granted or awarded to any employee to pay for taxes payable by such employee upon such grant or award, or the vesting of such grant or award; Notwithstanding the foregoing, (i) ViSalus (or the Company, pursuant to its guarantee of the applicable obligation of ViSalus) may effect the ViSalus Redemption on or after December 31, 2017; provided that, notwithstanding anything to the contrary in this Section 10.09, and for the avoidance of doubt, the Company will not, and will not cause or permit any Restricted Subsidiary to, directly or indirectly effect the ViSalus Redemption prior to December 31, 2017, (ii) ViSalus may redeem its Capital Stock (in such Person addition to any other redemption permitted under this Indenture) by the payment of the redemption price therefor (or Unrestricted Subsidiaryapplicable portion thereof) with the issuance of the ViSalus Promissory Notes which qualify as Permitted Indebtedness under clause (xii) of the definition thereof and (iii) Vesting Retention Transactions may be consummated; provided, further, however, that it is understood that neither this Section 10.09(c), nor the reference in Section 10.01(b) to the first proviso of this Section 10.01(c), shall, or shall be interpreted to, prevent the Visalus Recapitalization.

Limitation on Restricted Payments. (a) The Company will Issuer shall not, and will shall not permit any Restricted SubsidiarySubsidiary to, directly or indirectly, to (i1) declare or pay any dividend or make any distribution on or with respect to its Capital Stock (other than (x) dividends or distributions payable solely in shares of its Capital Stock (other than Disqualified Stock) or in options, warrants or other rights to acquire shares of such Capital Stock and (y) pro rata dividends or distributions on Common Stock common stock of Restricted Subsidiaries held by minority stockholders, provided that such dividends do not in the aggregate exceed the minority stockholders' pro rata share of such Restricted Subsidiaries' net income from the first day of the fiscal quarter beginning immediately following the Closing Date) held by Persons other than the Company Issuer or any of its Restricted Subsidiaries, (ii2) purchase, call for redemption or redeem, retire or otherwise acquire for value any shares of Capital Stock of (A) the CompanyIssuer (including options, warrants or other rights to acquire such shares of Capital Stock) held by any Subsidiary Guarantor Person or an Unrestricted (B) a Restricted Subsidiary (including options, warrants or other rights to acquire such shares of Capital Stock) held by Persons any Affiliate of the Issuer (other than the Company and its a Wholly Owned SubsidiariesRestricted Subsidiary) or any holder (or any Affiliate of such holder) of 10% or more of the Capital Stock of the Issuer, (iii3) make any voluntary or optional principal payment, or voluntary or optional redemption, repurchase, defeasance, or other acquisition or retirement for value, of Indebtedness of the Company Issuer that is subordinated in right of payment to the Notes Securities or any Indebtedness of any a Subsidiary Guarantor that is subordinated in right of payment to the Subsidiary Guaranties (other than, in each case, the purchase, repurchase or the acquisition of Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in any case due within one year of the date of acquisition) Note Guarantee or (iv4) make any Investment, other than a Permitted Investment, in any Person (such payments or any other actions described in clauses (i1) through (iv4) above being collectively "RESTRICTED PAYMENTS"“Restricted Payments”) if, at the time of, and after giving effect to, the proposed Restricted Payment: (A) an Event of Default shall have occurred and be continuing, (B) except with respect to Investments in Restricted Subsidiaries and dividends on the Common Stock of any Subsidiary Guarantor paid to the Company or any Restricted Subsidiary, the Company could not Incur at least $1.00 of Indebtedness under the first sentence of paragraph (a) of Section 4.03 or (C) the aggregate amount of all Restricted Payments (the amount, if other than in cash, to be determined in good faith by the Board of Directors, whose determination shall be conclusive and evidenced by a Board Resolution) made after the Closing Date (after giving pro forma effect to the proposed Restricted Payment) shall exceed the sum of (1) 50% of the aggregate amount of the Adjusted Consolidated Net Income (or, if the Adjusted Consolidated Net Income is a loss, minus 100% of the amount of such loss) (determined by excluding income resulting from transfers of assets by the Company or a Restricted Subsidiary to an Unrestricted Subsidiary) accrued on a cumulative basis during the period (taken as one accounting period) beginning on the first day of the fiscal quarter immediately following the Closing Date and ending on the last day of the last fiscal quarter preceding the Transaction Date for which reports have been filed pursuant to Section 4.18 plus (2) the aggregate amount of Designated Equity Proceeds received by the Company after the Closing Date, except to the extent such amount of Designated Equity Proceeds is used as a basis to Incur Indebtedness pursuant to clause (i) or (viii) of paragraph (a) under Section 4.03, plus (3) an amount equal to the net reduction in Investments (other than reductions in Permitted Investments) in any Person resulting from payments of interest on Indebtedness, dividends, repayments of loans or advances, or other transfers of assets, in each case to the Company or any Restricted Subsidiary or from the Net Cash Proceeds from the sale of any such Investment (except, in each case, to the extent any such payment or proceeds are included in the calculation of Adjusted Consolidated Net Income), or from redesignations of Unrestricted Subsidiaries as Restricted Subsidiaries (valued in each case as provided in the definition of "Investments"), not to exceed, in each case, the amount of Investments previously made by the Company or any Restricted Subsidiary in such Person or Unrestricted Subsidiary.:

Limitation on Restricted Payments. (a) The Company will not, and will not permit any Restricted Subsidiary, directly or indirectly, to (i) declare or pay any dividend or make any distribution on or with respect to any class of its Capital Stock (other than (x) dividends or distributions payable solely in shares of its or such Restricted Subsidiary's Capital Stock (other than Disqualified Redeemable Stock) of the same class as such Capital Stock or in options, warrants or other rights to acquire shares of such Capital Stock and (y) pro rata dividends or distributions on Common Stock of Restricted Subsidiaries held by minority stockholders, provided that such dividends do not in the aggregate exceed the minority stockholders' pro rata share of such Restricted Subsidiaries' net income from the first day of the fiscal quarter beginning immediately following the Closing DateStock) held by Persons other than the Company or any of its Restricted Subsidiaries which are Wholly Owned Subsidiaries, (ii) purchase, redeem, retire or otherwise acquire for value any shares of Capital Stock of the Company, any Restricted Subsidiary Guarantor or an any Unrestricted Subsidiary (including options, warrants or other rights to acquire such any shares of such Capital Stock) held by Persons other than the Company and its or another Restricted Subsidiary that is a Wholly Owned SubsidiariesSubsidiary, (iii) make any voluntary or optional principal payment, or voluntary or optional redemption, repurchase, defeasance, defeasance or other acquisition or retirement for value, of Indebtedness of the Company that is expressly subordinated in right of payment to the Notes or of any Subsidiary Guarantor that is subordinated to the Subsidiary Guaranties (other thanSecurities, in each case, the purchase, repurchase or the acquisition of Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in any case due within one year of the date of acquisition) or (iv) make any Investment, Investment in any Affiliate (other than the Company or a Permitted Restricted Subsidiary that is a Ninety-Five Percent Owned Subsidiary, including any Person that becomes such a Restricted Subsidiary by virtue of such Investment, ) or (v) make any Investment in any Person Joint Venture (such payments or any other actions described in clauses (i) through (ivv) being collectively "RESTRICTED PAYMENTSRestricted Payments") if, unless at the time of, of and after giving effect to, the proposed Restricted Payment: (A) an Event of Default shall have occurred and be continuing, (B) except with respect to Investments in Restricted Subsidiaries and dividends on the Common Stock of any Subsidiary Guarantor paid to the Company or any Restricted Subsidiary, the Company could not Incur at least $1.00 of Indebtedness under the first sentence of paragraph (a) of Section 4.03 or (C) the aggregate amount of all Restricted Payments (the amount, if other than in cash, to be determined in good faith by the Board of Directors, whose determination shall be conclusive and evidenced by a Board Resolution) made after the Closing Date (after giving pro forma effect to the proposed Restricted Payment) shall exceed the sum of (1) 50% of the aggregate amount of the Adjusted Consolidated Net Income (or, if the Adjusted Consolidated Net Income is a loss, minus 100% of the amount of such loss) (determined by excluding income resulting from transfers of assets by the Company or a Restricted Subsidiary to an Unrestricted Subsidiary) accrued on a cumulative basis during the period (taken as one accounting period) beginning on the first day of the fiscal quarter immediately following the Closing Date and ending on the last day of the last fiscal quarter preceding the Transaction Date for which reports have been filed pursuant to Section 4.18 plus (2) the aggregate amount of Designated Equity Proceeds received by the Company after the Closing Date, except to the extent such amount of Designated Equity Proceeds is used as a basis to Incur Indebtedness pursuant to clause (i) or (viii) of paragraph (a) under Section 4.03, plus (3) an amount equal to the net reduction in Investments (other than reductions in Permitted Investments) in any Person resulting from payments of interest on Indebtedness, dividends, repayments of loans or advances, or other transfers of assets, in each case to the Company or any Restricted Subsidiary or from the Net Cash Proceeds from the sale of any such Investment (except, in each case, to the extent any such payment or proceeds are included in the calculation of Adjusted Consolidated Net Income), or from redesignations of Unrestricted Subsidiaries as Restricted Subsidiaries (valued in each case as provided in the definition of "Investments"), not to exceed, in each case, the amount of Investments previously made by the Company or any Restricted Subsidiary in such Person or Unrestricted Subsidiary.:

Limitation on Restricted Payments. (a) The Company will not, and will not permit any of its Restricted SubsidiarySubsidiaries, directly or indirectly, to (i) declare or pay any dividend or make any distribution on or with in respect to of its Capital Stock (other than including any payment in connection with any merger or consolidation involving the Company or any of its Restricted Subsidiaries) except (xA) dividends or distributions payable solely in shares of its Capital Stock (other than Disqualified Stock) or in options, warrants or other rights to acquire shares of purchase such Capital Stock and (yB) pro rata dividends or distributions on Common Stock of Restricted Subsidiaries held by minority stockholders, provided that such dividends do not in the aggregate exceed the minority stockholders' pro rata share of such Restricted Subsidiaries' net income from the first day of the fiscal quarter beginning immediately following the Closing Date) held by Persons other than payable to the Company or any a Restricted Subsidiary of the Company (and if such Restricted Subsidiary is not a Wholly-Owned Subsidiary, to its Restricted Subsidiariesother holders of Capital Stock on a pro rata basis), (ii) purchase, redeem, retire or otherwise acquire for value any shares of Capital Stock of the Company, any Subsidiary Guarantor or an Unrestricted Subsidiary (including options, warrants or other rights to acquire such shares of Capital Stock) Company held by Persons other than a Restricted Subsidiary of the Company and or any Capital Stock of a Restricted Subsidiary of the Company held by any Affiliate of the Company, other than another Restricted Subsidiary (in either case, other than in exchange for its Wholly Owned SubsidiariesCapital Stock (other than Disqualified Stock)), (iii) make any voluntary or optional principal payment, or voluntary or optional redemptionpurchase, repurchase, defeasanceredeem, defease or other acquisition otherwise acquire or retirement retire for value, of Indebtedness of the Company that is subordinated in right of payment prior to the Notes scheduled maturity, scheduled repayment or of scheduled sinking fund payment, any Subsidiary Guarantor that is subordinated to the Subsidiary Guaranties Subordinated Obligations (other than, in each case, than the purchase, repurchase or the other acquisition of Indebtedness Subordinated Obligations purchased in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in any each case due within one year of the date of purchase, repurchase or acquisition) or (iv) make any Investment, Investment (other than a Permitted Investment, ) in any Person (any such payments dividend, distribution, purchase, redemption, repurchase, defeasance, other acquisition, retirement or any other actions described Investment being herein referred to in clauses (i) through (iv) being collectively as a "RESTRICTED PAYMENTSPAYMENT") if), if at the time of, and after giving effect to, the proposed Company or such Restricted Subsidiary makes such Restricted Payment: (A1) an a Default or Event of Default shall have occurred and be continuingcontinuing (or would result therefrom); or (2) the Company and its Restricted Subsidiaries could not Incur an additional $1.00 of Indebtedness pursuant to paragraph (a) under SECTION 3.3; or (3) the aggregate amount of such Restricted Payment and all other Restricted Payments declared or made subsequent to the Issue Date would exceed the sum of: (A) 50% of Consolidated Net Income accrued during the period (treated as one accounting period) from the Issue Date to the end of the most recent fiscal quarter ending prior to the date of such Restricted Payment as to which financial results are available (or, in case such Consolidated Net Income is a deficit, minus 100% of such deficit); (B) except with respect the aggregate Net Cash Proceeds received by the Company from the issue or sale of its Capital Stock (other than Disqualified Stock) or other capital contributions subsequent to Investments in Restricted Subsidiaries and dividends on the Common Issue Date (other than net proceeds to the extent (x) used to redeem Securities or (y) received from an issuance or sale of such Capital Stock to a Subsidiary of any Subsidiary Guarantor paid the Company or an employee stock ownership plan or similar trust to the extent such sale to an employee stock ownership plan or similar trust is financed by loans from or guaranteed by the Company or any Restricted Subsidiary, Subsidiary unless such loans have been repaid with cash on or prior to the Company could not Incur at least $1.00 date of Indebtedness under the first sentence of paragraph (a) of Section 4.03 or determination); (C) the aggregate amount by which Indebtedness of all Restricted Payments the Company is reduced on the Company's balance sheet upon the conversion or exchange (the amount, if other than in cash, to be determined in good faith by the Board of Directors, whose determination shall be conclusive and evidenced by a Board ResolutionSubsidiary of the Company) made after the Closing Date (after giving pro forma effect subsequent to the proposed Restricted Payment) shall exceed the sum Issue Date of (1) 50% any Indebtedness of the aggregate amount Company convertible or exchangeable for Capital Stock of the Adjusted Consolidated Net Income Company (or, if the Adjusted Consolidated Net Income is a loss, minus 100% of less the amount of such loss) (determined by excluding income resulting from transfers of assets any cash, or other property, distributed by the Company upon such conversion or a Restricted Subsidiary to an Unrestricted Subsidiary) accrued on a cumulative basis during the period exchange); and (taken as one accounting period) beginning on the first day of the fiscal quarter immediately following the Closing Date and ending on the last day of the last fiscal quarter preceding the Transaction Date for which reports have been filed pursuant to Section 4.18 plus (2D) the aggregate amount of Designated Equity Proceeds received by the Company after the Closing Date, except to the extent such amount of Designated Equity Proceeds is used as a basis to Incur Indebtedness pursuant to clause (i) or (viii) of paragraph (a) under Section 4.03, plus (3) an amount equal to the net reduction in Investments (other than reductions in Permitted Investments) made by the Company or any of its Restricted Subsidiaries in any Person resulting from payments (i) repurchases or redemptions of interest on Indebtednesssuch Investments by such Person, dividendsproceeds realized upon the sale of such Investment to an unaffiliated purchaser, repayments of loans or advances, advances or other transfers of assets, in each case assets as a return of capital or similar payment (excluding by way of dividend or distribution) by such Person to the Company or any Restricted Subsidiary of the Company or from (ii) the Net Cash Proceeds from the sale of any such Investment (except, in each case, to the extent any such payment or proceeds are included in the calculation of Adjusted Consolidated Net Income), or from redesignations redesignation of Unrestricted Subsidiaries as Restricted Subsidiaries (valued in each case as provided in the definition of "InvestmentsInvestment"), ) not to exceed, in each casethe case of any Unrestricted Subsidiary, the amount of Investments (excluding Permitted Investments) previously made by the Company or any Restricted Subsidiary in such Person or Unrestricted Subsidiary, which amount was included in the calculation of the amount of Restricted Payments; PROVIDED, HOWEVER, that no amount will be included under this clause (D) to the extent it is already included in Consolidated Net Income.

Limitation on Restricted Payments. (a) The Company will not, and will not permit any Restricted SubsidiarySubsidiary to, directly or indirectly, to (i) declare or pay any dividend or make any distribution on or with respect to its Capital Stock (other than (x) dividends or distributions payable solely in shares of its Capital Stock (other than Disqualified Stock) or in options, warrants or other rights to acquire shares of such Capital Stock and (y) pro rata dividends or distributions on Common Capital Stock of Restricted Subsidiaries held by minority stockholders, provided that such dividends do not in the aggregate exceed the minority stockholders' pro rata share of such Restricted Subsidiaries' net income from the first day of the fiscal quarter beginning immediately following the Closing Date) held by Persons other than the Company or any of its Restricted Subsidiaries, (ii) purchase, redeem, retire or otherwise acquire for value any shares of Capital Stock of (A) the Company, any Subsidiary Guarantor Company or an Unrestricted Subsidiary (including options, warrants or other rights to acquire such shares of Capital Stock) held by Persons any Person (other than with respect to the Capital Stock of an Unrestricted Subsidiary, Permitted Investments) or (B) a Restricted Subsidiary (including options, warrants or other rights to acquire such shares of Capital Stock) held by any Affiliate of the Company (other than a Wholly Owned Restricted Subsidiary or a Restricted Subsidiary in which no Affiliate of the Company (other than the Company and its or any Restricted Subsidiary) or holder of 5% or more of the aggregate value of the Capital Stock of the Company has an interest) or any holder (or any Affiliate (other than a Wholly Owned SubsidiariesRestricted Subsidiary or a Restricted Subsidiary in which no Affiliate of the Company (other than the Company or any Restricted Subsidiary) or holder of 5% or more of the aggregate value of the Capital Stock of the Company has an interest) of such holder) of 5% or more of the aggregate value of the Capital Stock of the Company, (iii) make any voluntary or optional principal payment, or voluntary or optional redemption, repurchase, defeasance, or other acquisition or retirement for value, of Indebtedness of the Company that is subordinated in right of payment to the Notes or of any Subsidiary Guarantor that is subordinated to the Subsidiary Guaranties (other than, in each case, the purchase, repurchase or the acquisition of Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in any case due within one year of the date of acquisition) or (iv) make any Investment, other than a Permitted Investment, in any Person (such payments or any other actions described in clauses (i) through (iv) above being collectively "RESTRICTED PAYMENTSRestricted Payments") if, at the time of, and after giving effect to, the proposed Restricted Payment: (A) an a Default or Event of Default shall have occurred and be continuing, (B) except with respect to Investments in Restricted Subsidiaries and dividends on the Common Stock of any Subsidiary Guarantor paid to the Company or any Restricted Subsidiary, the Company could not Incur at least $1.00 of Indebtedness under the first sentence paragraph of paragraph subsection (a) of this Section 4.03 1008 or (C) the aggregate amount of all Restricted Payments (the amount, if other than in cash, to be determined in good faith by the Board of Directors, whose determination shall be conclusive and evidenced by a Board Resolution) made after the Closing Date (after giving pro forma effect to the proposed Restricted Payment) shall exceed the sum of (1) 50% of the aggregate amount of the Adjusted Consolidated Net Income (or, if the Adjusted Consolidated Net Income is a loss, minus 100% of the amount of such loss) (determined by excluding income resulting from transfers of assets by the Company or a Restricted Subsidiary to an Unrestricted Subsidiary) EBITDA accrued on a cumulative basis during the period (taken as one accounting period) beginning on the first day of the fiscal quarter immediately following the Closing Date and ending on the last day of the last fiscal quarter preceding the Transaction Determination Date for which reports have been filed with the Commission or provided to the Trustee pursuant to Section 4.18 1020 less two times Consolidated Interest Expense for such period, plus (2) the aggregate amount of Designated Equity Net Cash Proceeds received by the Company after the Closing DateDate as a capital contribution or from the issuance and sale of its Capital Stock (other than Disqualified Stock) to a Person who is not a Subsidiary of the Company, except including an issuance or sale permitted by the Indenture of Indebtedness of the Company for cash subsequent to the extent Closing Date upon the conversion or exchange of such amount of Designated Equity Proceeds is used as a basis to Incur Indebtedness pursuant to clause into Capital Stock (i) or (viiiother than Disqualified Stock) of paragraph the Company, or from the issuance to a Person who is not a Subsidiary of the Company of any options, warrants or other rights to acquire Capital Stock of the Company (ain each case, exclusive of any Disqualified Stock or any options, warrants or other rights that are redeemable at the option of the holder, or are required to be redeemed, prior to the Stated Maturity of the Notes) under Section 4.03, plus (3) an amount equal to the net reduction in Investments (other than reductions in Permitted Investments) in any Person resulting from payments of interest on Indebtedness, dividends, repayments of loans or advances, or other transfers of assets, in each case to the Company or any Restricted Subsidiary or from the Net Cash Proceeds from the sale of any such Investment (except, in each case, to the extent any such payment or proceeds are included in the calculation of Adjusted Consolidated Net IncomeEBITDA), or from redesignations of Unrestricted Subsidiaries as Restricted Subsidiaries (valued in each case as provided in the definition of "Investments"), not to exceed, in each case, the amount of Investments previously made by the Company or any Restricted Subsidiary in such Person or Unrestricted Subsidiary.

Limitation on Restricted Payments. (a) The Company will shall not, and will shall not permit any Restricted SubsidiarySubsidiary to, directly or indirectly, to (i) declare or pay any dividend dividend, or make any distribution on distribution, of any kind or with character (whether in cash, property or securities) in respect to its of the Capital Stock of the Company or any Restricted Subsidiary or to the holders thereof in their capacity as such (excluding (a) any dividends or distributions to the extent payable in shares of the Capital Stock of the Company (other than (x) dividends or distributions payable solely in shares of its Capital Stock (other than Disqualified StockRedeemable Interests) or in options, warrants or other rights to acquire shares of such the Capital Stock of the Company (other than Redeemable Interests), (b) dividends or distributions by a Restricted Subsidiary to the Company or another Wholly Owned Restricted Subsidiary and (yc) the payment of pro rata dividends or distributions on Common Stock by a Restricted Subsidiary to holders of Restricted Subsidiaries held by both minority stockholders, provided that such dividends do not and majority interests in the aggregate exceed the minority stockholders' pro rata share of such Restricted Subsidiaries' net income from the first day of the fiscal quarter beginning immediately following the Closing Date) held by Persons other than the Company or any of its Restricted SubsidiariesSubsidiary), (ii) purchase, redeem, retire redeem or otherwise acquire or retire for value (a) any Capital Stock of the Company or any Capital Stock of or other ownership interests in any Subsidiary or any Affiliate or Related Person of the Company or (b) any options, warrants or rights to purchase or acquire shares of Capital Stock of the Company or any Capital Stock of or other ownership interests in any Subsidiary or any Affiliate or Related Person of the Company, excluding, in each case of (a) and (b) of this clause (ii), the purchase, redemption, acquisition or retirement by any Restricted Subsidiary Guarantor of any of its Capital Stock, other ownership interests or an Unrestricted Subsidiary (including options, warrants or other rights to acquire purchase such shares of Capital Stock) held Stock or other ownership interests, in each case, owned by Persons other than the Company and its or a Wholly Owned SubsidiariesRestricted Subsidiary, (iii) make any voluntary Investment that is not a Permitted Investment or optional principal payment(iv) redeem, or voluntary or optional redemptiondefease, repurchase, defeasanceretire or otherwise acquire or retire for value prior to any scheduled maturity, repayment or other acquisition or retirement for valuesinking fund payment, of Indebtedness Debt of the Company that is subordinated subordinate in right of payment to the Notes or of any Subsidiary Guarantor that is subordinated to the Subsidiary Guaranties (other than, in each case, the purchase, repurchase or the acquisition of Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in any case due within one year of the date of acquisition) or (iv) make any Investment, other than a Permitted Investment, in any Person (such payments or any other actions transactions described in clauses Clauses (i) through (iv) being collectively a "RESTRICTED PAYMENTS") if, at the time of, and after giving effect to, the proposed Restricted Payment: (A) an Event of Default shall have occurred and be continuing, (B) except with respect to Investments in Restricted Subsidiaries and dividends on the Common Stock of any Subsidiary Guarantor paid to the Company or any Restricted Subsidiary, the Company could not Incur at least $1.00 of Indebtedness under the first sentence of paragraph (a) of Section 4.03 or (C) the aggregate amount of all Restricted Payments (the amount, if other than in cash, to be determined in good faith by the Board of Directors, whose determination shall be conclusive and evidenced by a Board Resolution) made after the Closing Date (after giving pro forma effect to the proposed Restricted Payment) shall exceed the sum of (1) 50% of the aggregate amount of the Adjusted Consolidated Net Income (or, if the Adjusted Consolidated Net Income is a loss, minus 100% of the amount of such loss) (determined by excluding income resulting from transfers of assets by the Company or a Restricted Subsidiary to an Unrestricted Subsidiary) accrued on a cumulative basis during the period (taken as one accounting period) beginning on the first day of the fiscal quarter immediately following the Closing Date and ending on the last day of the last fiscal quarter preceding the Transaction Date for which reports have been filed pursuant to Section 4.18 plus (2) the aggregate amount of Designated Equity Proceeds received by the Company after the Closing Date, except to the extent such amount of Designated Equity Proceeds is used as a basis to Incur Indebtedness pursuant to clause (i) or (viii) of paragraph (a) under Section 4.03, plus (3) an amount equal to the net reduction in Investments (other than reductions in Permitted Investments) in any Person resulting from payments of interest on Indebtedness, dividends, repayments of loans or advances, or other transfers of assets, in each case to the Company or any Restricted Subsidiary or from the Net Cash Proceeds from the sale of any such Investment (except, in each case, to the extent any such payment or proceeds are included in the calculation of Adjusted Consolidated Net Income), or from redesignations of Unrestricted Subsidiaries as Restricted Subsidiaries (valued in each case as provided in the definition of "Investments"), not to exceed, in each case, the amount of Investments previously made by the Company or any Restricted Subsidiary in such Person or Unrestricted Subsidiary.if:

Limitation on Restricted Payments. (a) The Company will shall not, and will shall not permit any Restricted SubsidiarySubsidiary to, directly or indirectly, to (i) declare or pay any dividend or make any distribution on or with in respect to of its Capital Stock (other than including any payment in connection with any merger or consolidation involving the Company) or to the direct or indirect holders of its Capital Stock in their capacities as such (x) except dividends or distributions payable solely in shares of its Capital Stock (other than Disqualified Stock) or in options, warrants or other rights to acquire shares of such purchase its Capital Stock (other than Disqualified Stock) and (y) pro rata except dividends or distributions on Common Stock of payable to the Company or any Restricted Subsidiaries held by minority stockholdersSubsidiary (and, provided that if the Restricted Subsidiary making such dividends do not in the aggregate exceed the minority stockholders' pro rata share of such Restricted Subsidiaries' net income from the first day of the fiscal quarter beginning immediately following the Closing Date) held by Persons or distributions has any stockholders other than the Company or any of its another Restricted SubsidiariesSubsidiary, to such stockholders on no more than a pro rata basis, measured by value)), (ii) purchase, redeem, retire redeem or otherwise acquire or retire for value any shares of Capital Stock of the Company or any Affiliate of the Company, any Subsidiary Guarantor or an Unrestricted Subsidiary (including options, warrants or other rights to acquire such shares of Capital Stock) held by Persons other than the Company and its Wholly Owned Subsidiaries, (iii) make any voluntary or optional principal payment, or voluntary or optional redemptionpurchase, repurchase, defeasanceredeem, defease or otherwise acquire or retire for value, prior to scheduled maturity, scheduled repayment or scheduled sinking fund payment, any Subordinated Obligations (other than (A) from the Company or a Restricted Subsidiary or (B) the purchase, repurchase, redemption, defeasance or other acquisition or retirement for value, of Indebtedness of the Company that is subordinated in right of payment to the Notes or of any Subsidiary Guarantor that is subordinated to the Subsidiary Guaranties (other than, in each case, the purchase, repurchase or the acquisition of Indebtedness Subordinated Obligations purchased in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in any each case due within one year of the date of acquisition) such purchase, repurchase, redemption, defeasance or other acquisition or retirement or (iv) make any InvestmentRestricted Investment (any such dividend, distribution, purchase, redemption, repurchase, defeasance, other than acquisition, retirement or Restricted Investment being herein referred to as a Permitted Investment, in any Person (such payments or any other actions described in clauses (i“Restricted Payment”) through (iv) being collectively "RESTRICTED PAYMENTS") if, if at the time of, and after giving effect to, the proposed Restricted Payment: (A) an Event of Default shall have occurred and be continuing, (B) except with respect to Investments in Restricted Subsidiaries and dividends on the Common Stock of any Subsidiary Guarantor paid to the Company or any such Restricted Subsidiary, the Company could not Incur at least $1.00 of Indebtedness under the first sentence of paragraph (a) of Section 4.03 or (C) the aggregate amount of all Restricted Payments (the amount, if other than in cash, to be determined in good faith by the Board of Directors, whose determination shall be conclusive and evidenced by a Board Resolution) made after the Closing Date (after giving pro forma effect to the proposed Subsidiary makes such Restricted Payment) shall exceed the sum of (1) 50% of the aggregate amount of the Adjusted Consolidated Net Income (or, if the Adjusted Consolidated Net Income is a loss, minus 100% of the amount of such loss) (determined by excluding income resulting from transfers of assets by the Company or a Restricted Subsidiary to an Unrestricted Subsidiary) accrued on a cumulative basis during the period (taken as one accounting period) beginning on the first day of the fiscal quarter immediately following the Closing Date and ending on the last day of the last fiscal quarter preceding the Transaction Date for which reports have been filed pursuant to Section 4.18 plus (2) the aggregate amount of Designated Equity Proceeds received by the Company after the Closing Date, except to the extent such amount of Designated Equity Proceeds is used as a basis to Incur Indebtedness pursuant to clause (i) or (viii) of paragraph (a) under Section 4.03, plus (3) an amount equal to the net reduction in Investments (other than reductions in Permitted Investments) in any Person resulting from payments of interest on Indebtedness, dividends, repayments of loans or advances, or other transfers of assets, in each case to the Company or any Restricted Subsidiary or from the Net Cash Proceeds from the sale of any such Investment (except, in each case, to the extent any such payment or proceeds are included in the calculation of Adjusted Consolidated Net Income), or from redesignations of Unrestricted Subsidiaries as Restricted Subsidiaries (valued in each case as provided in the definition of "Investments"), not to exceed, in each case, the amount of Investments previously made by the Company or any Restricted Subsidiary in such Person or Unrestricted Subsidiary.:

Limitation on Restricted Payments. (a) The Company will not, and will not permit any Restricted Subsidiaryof its Subsidiaries to, directly or indirectly, to (i) declare or pay any dividend or make any other payment or distribution on account of the Company's or any of its Subsidiary's Equity Interests (including, without limitation, any payment in connection with respect to its Capital Stock (any merger or consolidation) other than (x) dividends or distributions (A) paid or payable solely in shares of its Capital Stock Equity Interests (other than Disqualified Stock) or in options, warrants or other rights to acquire shares of such Capital Stock and (y) pro rata dividends or distributions on Common Stock of Restricted Subsidiaries held by minority stockholders, provided that such dividends do not in the aggregate exceed the minority stockholders' pro rata share of such Restricted Subsidiaries' net income from the first day of the fiscal quarter beginning immediately following the Closing DateCompany or (B) held by Persons other than paid or payable to the Company or any Subsidiary of its Restricted Subsidiaries, the Company; (ii) purchase, redeem, retire redeem or otherwise acquire or retire for value any shares of Capital Stock Equity Interests of the Company, Company or any direct or indirect parent of the Company or 19 124 other Affiliate of the Company or any Subsidiary Guarantor or an Unrestricted Subsidiary of the Company (including options, warrants or other rights to acquire such shares of Capital Stock) held by Persons other than any such Equity Interests owned by the Company and its Wholly Owned Subsidiaries, or any Subsidiary of the Company or upon redemption of the Series A Voting Preferred Stock or the Series B Nonvoting Preferred Stock in accordance with the terms of the Amendment); (iii) make any voluntary principal payment on, or optional principal purchase, redeem, defease or otherwise acquire or retire for value prior to the scheduled maturity, scheduled repayment or scheduled sinking fund payment, any Subordinated Indebtedness (except, if no Default or voluntary Event of Default is continuing or optional would result therefrom, any such payment, purchase, redemption, repurchase, defeasance, defeasance or other acquisition or retirement for valuevalue made (A) out of Excess Proceeds available for general corporate purposes if such payment or other action is required by the indenture or other agreement or instrument pursuant to which such Subordinated Indebtedness was issued, or (B) upon the occurrence of a Change of Control if (1) such payment or other action is required by the indenture or other agreement or instrument pursuant to which such Subordinated Indebtedness of was issued and (2) the Company that is subordinated in right has purchased all Notes properly tendered pursuant to Section 4.1 resulting from such Change of payment to the Notes or of any Subsidiary Guarantor that is subordinated to the Subsidiary Guaranties (other than, in each case, the purchase, repurchase or the acquisition of Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in any case due within one year of the date of acquisition) Control); or (iv) make any Investment, other than a Permitted Investment, in any Person Restricted Investment (all such payments or any and other actions described set forth in clauses (i) through (iv) above being collectively referred to as "RESTRICTED PAYMENTSRestricted Payments") if), unless, at the time of, of and after giving effect to, the proposed to such Restricted Payment: (A) an Event of Default shall have occurred and be continuing, (B) except with respect to Investments in Restricted Subsidiaries and dividends on the Common Stock of any Subsidiary Guarantor paid to the Company or any Restricted Subsidiary, the Company could not Incur at least $1.00 of Indebtedness under the first sentence of paragraph (a) of Section 4.03 or (C) the aggregate amount of all Restricted Payments (the amount, if other than in cash, to be determined in good faith by the Board of Directors, whose determination shall be conclusive and evidenced by a Board Resolution) made after the Closing Date (after giving pro forma effect to the proposed Restricted Payment) shall exceed the sum of (1) 50% of the aggregate amount of the Adjusted Consolidated Net Income (or, if the Adjusted Consolidated Net Income is a loss, minus 100% of the amount of such loss) (determined by excluding income resulting from transfers of assets by the Company or a Restricted Subsidiary to an Unrestricted Subsidiary) accrued on a cumulative basis during the period (taken as one accounting period) beginning on the first day of the fiscal quarter immediately following the Closing Date and ending on the last day of the last fiscal quarter preceding the Transaction Date for which reports have been filed pursuant to Section 4.18 plus (2) the aggregate amount of Designated Equity Proceeds received by the Company after the Closing Date, except to the extent such amount of Designated Equity Proceeds is used as a basis to Incur Indebtedness pursuant to clause (i) or (viii) of paragraph (a) under Section 4.03, plus (3) an amount equal to the net reduction in Investments (other than reductions in Permitted Investments) in any Person resulting from payments of interest on Indebtedness, dividends, repayments of loans or advances, or other transfers of assets, in each case to the Company or any Restricted Subsidiary or from the Net Cash Proceeds from the sale of any such Investment (except, in each case, to the extent any such payment or proceeds are included in the calculation of Adjusted Consolidated Net Income), or from redesignations of Unrestricted Subsidiaries as Restricted Subsidiaries (valued in each case as provided in the definition of "Investments"), not to exceed, in each case, the amount of Investments previously made by the Company or any Restricted Subsidiary in such Person or Unrestricted Subsidiary.:

Limitation on Restricted Payments. (a) The Company will shall not, and will shall not permit any of its Restricted SubsidiarySubsidiaries, directly or indirectly, to (i1) declare or pay any dividend or make any distribution (whether made in cash, securities or other property) on or with in respect to of its Capital Stock (other than including any payment in connection with any merger or consolidation involving the Company or any of its Restricted Subsidiaries) except: (xA) dividends or distributions payable solely in shares of its Capital Stock of the Company (other than Disqualified Stock) or in options, warrants or other rights to acquire shares of purchase such Capital Stock of the Company; and (yB) pro rata dividends or distributions on Common Stock of Restricted Subsidiaries held by minority stockholders, provided that such dividends do not in the aggregate exceed the minority stockholders' pro rata share of such Restricted Subsidiaries' net income from the first day of the fiscal quarter beginning immediately following the Closing Date) held by Persons other than payable to the Company or any a Restricted Subsidiary (and if such Restricted Subsidiary is not a Wholly-Owned Subsidiary, to its other holders of its Restricted Subsidiaries, common Capital Stock on a pro rata basis); (ii2) purchase, redeem, retire or otherwise acquire for value any shares of Capital Stock of the Company, Company or any Subsidiary Guarantor direct or an Unrestricted Subsidiary (including options, warrants or other rights to acquire such shares indirect parent of Capital Stock) the Company held by Persons other than the Company and its Wholly Owned Subsidiaries, or a Restricted Subsidiary (iiiother than in exchange for Capital Stock of the Company (other than Disqualified Stock)); (3) make any voluntary or optional principal payment, or voluntary or optional redemptionpurchase, repurchase, defeasanceredeem, defease or otherwise acquire or retire for value, prior to scheduled maturity, scheduled repayment or scheduled sinking fund payment, any Subordinated Obligations or Guarantor Subordinated Obligations (other than the purchase, repurchase, redemption, defeasance or other acquisition or retirement for value, of Indebtedness of the Company that is subordinated in right of payment to the Notes Subordinated Obligations or of any Subsidiary Guarantor that is subordinated to the Subsidiary Guaranties (other than, in each case, the purchase, repurchase or the acquisition of Indebtedness Subordinated Obligations purchased in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in any each case due within one year of the date of acquisition) purchase, repurchase, redemption, defeasance or other acquisition or retirement); or (iv4) make any InvestmentRestricted Investment in any Person; (any such dividend, distribution, purchase, redemption, repurchase, defeasance, other than a Permitted Investmentacquisition, in any Person (such payments retirement or any other actions described Restricted Investment referred to in clauses (i1) through (iv4) being collectively of this Section 3.5(a) shall be referred to herein as a "RESTRICTED PAYMENTSRestricted Payment") if), if at the time of, and after giving effect to, the proposed Company or such Restricted Subsidiary makes such Restricted Payment: (Aa) an Event of a Default shall have occurred and be continuingcontinuing (or would result therefrom); or (b) the Company is not able to Incur an additional $1.00 of Indebtedness pursuant to Section 3.3(a) after giving effect, on a pro forma basis, to such Restricted Payment; or (Bc) except the aggregate amount of such Restricted Payment and all other Restricted Payments declared or made subsequent to the Issue Date would exceed the sum of: (i) 50% of Consolidated Net Income for the period (treated as one accounting period) from the first day of the quarter in which the Issue Date occurs to the end of the most recent fiscal quarter ending prior to the date of such Restricted Payment for which financial statements are in existence (or, in case such Consolidated Net Income is a deficit, minus 100% of such deficit); (ii) 100% of the aggregate Net Cash Proceeds received by the Company from the issue or sale of its Capital Stock (other than Disqualified Stock) or other capital contributions subsequent to the Issue Date (other than Net Cash Proceeds received from an issuance or sale of such Capital Stock to a Subsidiary of the Company or an employee stock ownership plan, option plan or similar trust to the extent such sale to an employee stock ownership plan or similar trust is financed by loans from or Guaranteed by the Company or any Restricted Subsidiary unless such loans have been repaid with respect cash on or prior to Investments the date of determination); (iii) the amount by which Indebtedness of the Company or its Restricted Subsidiaries is reduced on the Company's balance sheet upon the conversion or exchange (other than by a Subsidiary of the Company) subsequent to the Issue Date of any Indebtedness of the Company or its Restricted Subsidiaries convertible or exchangeable for Capital Stock (other than Disqualified Stock) of the Company (less the amount of any cash, or the fair market value of any other property, distributed by the Company upon such conversion or exchange); and (iv) the amount equal to the net reduction in Restricted Investments made by the Company or any of its Restricted Subsidiaries and dividends on in any Person resulting from: (A) repurchases or redemptions of such Restricted Investments by such Person, proceeds realized upon the Common Stock sale of any Subsidiary Guarantor paid such Restricted Investment to an unaffiliated purchaser, repayments of loans or advances or other transfers of assets (including by way of dividend or distribution) by such Person to the Company or any Restricted Subsidiary, the Company could not Incur at least $1.00 of Indebtedness under the first sentence of paragraph (a) of Section 4.03 ; or (CB) the aggregate amount of all Restricted Payments (the amount, if other than in cash, to be determined in good faith by the Board of Directors, whose determination shall be conclusive and evidenced by a Board Resolution) made after the Closing Date (after giving pro forma effect to the proposed Restricted Payment) shall exceed the sum of (1) 50% of the aggregate amount of the Adjusted Consolidated Net Income (or, if the Adjusted Consolidated Net Income is a loss, minus 100% of the amount of such loss) (determined by excluding income resulting from transfers of assets by the Company or a Restricted Subsidiary to an Unrestricted Subsidiary) accrued on a cumulative basis during the period (taken as one accounting period) beginning on the first day of the fiscal quarter immediately following the Closing Date and ending on the last day of the last fiscal quarter preceding the Transaction Date for which reports have been filed pursuant to Section 4.18 plus (2) the aggregate amount of Designated Equity Proceeds received by the Company after the Closing Date, except to the extent such amount of Designated Equity Proceeds is used as a basis to Incur Indebtedness pursuant to clause (i) or (viii) of paragraph (a) under Section 4.03, plus (3) an amount equal to the net reduction in Investments (other than reductions in Permitted Investments) in any Person resulting from payments of interest on Indebtedness, dividends, repayments of loans or advances, or other transfers of assets, in each case to the Company or any Restricted Subsidiary or from the Net Cash Proceeds from the sale of any such Investment (except, in each case, to the extent any such payment or proceeds are included in the calculation of Adjusted Consolidated Net Income), or from redesignations redesignation of Unrestricted Subsidiaries as Restricted Subsidiaries (valued in each case as provided in the definition of "InvestmentsInvestment"), ) not to exceed, in each casethe case of any Unrestricted Subsidiary, the amount of Investments previously made by the Company or any Restricted Subsidiary in such Person or Unrestricted Subsidiary, which amount in each case under this clause (iv) was included in the calculation of the amount of Restricted Payments; provided, however, that no amount will be included under this clause (iv) to the extent it is already included in Consolidated Net Income.

Limitation on Restricted Payments. (a) The Company will shall not, and will shall not permit any of its Restricted SubsidiarySubsidiaries, directly or indirectly, to (i) declare or pay any dividend or make any distribution on or with in respect to of its Capital Stock (other than including any payment in connection with any merger or consolidation involving the Company or any of its Restricted Subsidiaries) except (xA) dividends or distributions payable solely in shares of its Capital Stock (other than Disqualified Stock) or in options, warrants or other rights to acquire shares of purchase such Capital Stock and (yB) pro rata dividends or distributions on Common Stock of Restricted Subsidiaries held by minority stockholders, provided that such dividends do not in the aggregate exceed the minority stockholders' pro rata share of such Restricted Subsidiaries' net income from the first day of the fiscal quarter beginning immediately following the Closing Date) held by Persons other than payable to the Company or any a Restricted Subsidiary of the Company (and if such Restricted Subsidiary is not a Wholly-Owned Subsidiary, to its Restricted Subsidiariesother holders of Capital Stock on a pro rata basis), (ii) purchase, redeem, retire or otherwise acquire for value any shares of Capital Stock of the Company, any Subsidiary Guarantor or an Unrestricted Subsidiary (including options, warrants or other rights to acquire such shares of Capital Stock) Company held by Persons other than a Restricted Subsidiary of the Company and or any Capital Stock of a Restricted Subsidiary of the Company held by any Affiliate of the Company, other than another Restricted Subsidiary (in either case, other than in exchange for its Wholly Owned SubsidiariesCapital Stock (other than Disqualified Stock)), (iii) make any voluntary or optional principal payment, or voluntary or optional redemptionpurchase, repurchase, defeasanceredeem, defease or other acquisition otherwise acquire or retirement retire for value, of Indebtedness of the Company that is subordinated in right of payment prior to the Notes scheduled maturity, scheduled repayment or of scheduled sinking fund payment, any Subsidiary Guarantor that is subordinated to the Subsidiary Guaranties Subordinated Obligations (other than, in each case, than the purchase, repurchase or the other acquisition of Indebtedness Subordinated Obligations purchased in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in any each case due within one year of the date of purchase, repurchase or acquisition) or (iv) make any Investment, Investment (other than a Permitted Investment, ) in any Person (any such payments dividend, distribution, purchase, redemption, repurchase, defeasance, other acquisition, retirement or any other actions described Investment being herein referred to in clauses (i) through (iv) being collectively as a "RESTRICTED PAYMENTSRestricted Payment") if), if at the time of, and after giving effect to, the proposed Company or such Restricted Subsidiary makes such Restricted Payment: (A1) an Event of a Default shall have occurred and be continuing, continuing (Bor would result therefrom); or (2) except with respect to Investments in Restricted Subsidiaries and dividends on the Common Stock of any Subsidiary Guarantor paid to the Company or any Restricted Subsidiary, the Company could shall not Incur at least be able to incur an additional $1.00 of Indebtedness under the first sentence of paragraph (a) of Section 4.03 or (C) the aggregate amount of all Restricted Payments (the amount, if other than in cash, to be determined in good faith by the Board of Directors, whose determination shall be conclusive and evidenced by a Board Resolution) made after the Closing Date (after giving pro forma effect to the proposed Restricted Payment) shall exceed the sum of (1) 50% of the aggregate amount of the Adjusted Consolidated Net Income (or, if the Adjusted Consolidated Net Income is a loss, minus 100% of the amount of such loss) (determined by excluding income resulting from transfers of assets by the Company or a Restricted Subsidiary to an Unrestricted Subsidiary) accrued on a cumulative basis during the period (taken as one accounting period) beginning on the first day of the fiscal quarter immediately following the Closing Date and ending on the last day of the last fiscal quarter preceding the Transaction Date for which reports have been filed pursuant to Section 4.18 plus (2) the aggregate amount of Designated Equity Proceeds received by the Company after the Closing Date, except to the extent such amount of Designated Equity Proceeds is used as a basis to Incur Indebtedness pursuant to clause (i) or (viii) of paragraph (a) under Section 4.03, plus 3.3 of this Indenture; or (3) the aggregate amount of such Restricted Payments and all other Restricted Payments declared or made subsequent to the Issue Date would exceed the sum of: (A) 50% of the Consolidated Net Income accrued during the period (treated as one accounting period) from the first day of the quarter in which the Issue Date occurs to the end of the most recent fiscal quarter ending prior to the date of such Restricted Payment as to which financial results are available (or, in case such 48 42 Consolidated Net Income shall be a deficit, minus 100% of such deficit); (B) the aggregate Net Cash Proceeds received by the Company from the issue or sale of its Capital Stock (other than Disqualified Stock) or other capital contributions subsequent to the Issue Date (other than net proceeds received from an issuance or sale of such Capital Stock to a Subsidiary of the Company or an employee stock ownership plan or similar trust to the extent such sale to an employee stock ownership plan or similar trust is financed by loans from or guaranteed by the Company or any Restricted Subsidiary unless such loans have been repaid with cash on or prior to the date of determination); (C) the amount by which Indebtedness of the Company is reduced on the Company's balance sheet upon the conversion or exchange (other than by a Subsidiary of the Company) subsequent to the Issue Date of any Indebtedness of the Company convertible or exchangeable for Capital Stock of the Company (less the amount of any cash, or other property, distributed by the Company upon such conversion or exchange); (D) the amount equal to the net reduction in Investments (other than reductions in Permitted Investments) made by the Company or any of its Restricted Subsidiaries in any Person resulting from payments (i) repurchases or redemptions of interest on Indebtednesssuch Investments by such Person, dividendsproceeds realized upon the sale of such Investment to an unaffiliated purchaser, repayments of loans or advances, advances or other transfers of assets, in each case assets (including by way of dividend or distribution) by such Person to the Company or any Restricted Subsidiary of the Company or from (ii) the Net Cash Proceeds from the sale of any such Investment (except, in each case, to the extent any such payment or proceeds are included in the calculation of Adjusted Consolidated Net Income), or from redesignations redesignation of Unrestricted Subsidiaries as Restricted Subsidiaries (valued in each case as provided in the definition of "InvestmentsInvestment"), ) not to exceed, in each casethe case of any Unrestricted Subsidiary, the amount of Investments previously made by the Company or any Restricted Subsidiary in such Person or Unrestricted Subsidiary, which amount was included in the calculation of the amount of Restricted Payments; provided, however, that no amount shall be included under this clause (D) to the extent it is already included in Consolidated Net Income and (E) until December 31, 1999, $1 million (reduced on a dollar for dollar basis by the sum of the amounts described in (A), (B), (C) and (D)). For purposes of this covenant, the amount of any Restricted Payments, if other than in cash, shall be determined in good faith by the Board of Directors as evidenced by a certificate filed with the Trustee, except that in the event the value of any non-cash consideration shall be $5 million or more, the value shall be as determined in writing by an Independent Appraiser.

Limitation on Restricted Payments. (a) The Company a. For so long as any shares of Convertible Preferred Stock are issued and outstanding, the corporation will not, and will not permit any Restricted Subsidiaryof its Subsidiaries to, directly or indirectly, to (i) declare or pay any dividend or make any other payment or distribution on account of the corporation's or any of its Subsidiary's Equity Interests (including, without limitation, any payment in connection with respect to its Capital Stock (any merger or consolidation) other than (x) dividends or distributions (A) paid or payable solely in shares of its Capital Stock Equity Interests (other than Disqualified Stock) or in options, warrants or other rights to acquire shares of such Capital Stock and (y) pro rata dividends or distributions on Common Stock of Restricted Subsidiaries held by minority stockholders, provided that such dividends do not in the aggregate exceed the minority stockholders' pro rata share of such Restricted Subsidiaries' net income from the first day of the fiscal quarter beginning immediately following corporation or (B) paid or payable to the Closing Date) held by Persons other than the Company corporation or any Subsidiary of its Restricted Subsidiaries, the corporation; (ii) purchase, redeem, retire or otherwise acquire or retire for value any shares of Capital Stock Equity Interests of the Company, corporation or any direct or indirect parent of the corporation or other Affiliate of the corporation or any Subsidiary Guarantor or an Unrestricted Subsidiary of the corporation (including options, warrants or other rights to acquire such shares of Capital Stock) held by Persons other than any such Equity Interests owned by the Company and its Wholly Owned Subsidiaries, corporation or any Subsidiary of the corporation); (iii) make any voluntary principal payment on, or optional principal purchase, redeem, defease, or otherwise acquire or retire for value prior to the scheduled maturity, scheduled repayment, or scheduled sinking fund payment, any Subordinated Indebtedness (except, if no Voting Rights Triggering Event is continuing or voluntary or optional would result therefrom, any such payment, purchase, redemption, repurchase, defeasance, or other acquisition or retirement for valuevalue made (A) out of Excess Proceeds available for general corporate purposes if such payment or other action is required by the indenture or other agreement or instrument pursuant to which such Subordinated Indebtedness was issued, (B) upon the occurrence of a Change of Control if (1) such payment or other action is required by the indenture or other agreement or instrument pursuant to which such Subordinated Indebtedness was issued and (2) the corporation has purchased all of the Company that is subordinated in right of payment Subordinated Notes properly tendered pursuant to the Notes terms thereof or of any Subsidiary Guarantor that is subordinated to (3) upon the Subsidiary Guaranties (other than, in each case, the purchase, repurchase or the acquisition of Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in any case due within one year redemption of the date Convertible Preferred Stock in accordance with the terms of acquisition) these Articles of Incorporation); or (iv) make any Investment, other than a Permitted Investment, in any Person Restricted Investment (all such payments or any and other actions described set forth in clauses (i) through (iv) above being collectively referred to as "RESTRICTED PAYMENTSRestricted Payments") if), unless, at the time of, of and after giving effect to, the proposed to such Restricted Payment: (A) an Event of Default shall have occurred and be continuing, (B) except with respect to Investments in Restricted Subsidiaries and dividends on the Common Stock of any Subsidiary Guarantor paid to the Company or any Restricted Subsidiary, the Company could not Incur at least $1.00 of Indebtedness under the first sentence of paragraph (a) of Section 4.03 or (C) the aggregate amount of all Restricted Payments (the amount, if other than in cash, to be determined in good faith by the Board of Directors, whose determination shall be conclusive and evidenced by a Board Resolution) made after the Closing Date (after giving pro forma effect to the proposed Restricted Payment) shall exceed the sum of (1) 50% of the aggregate amount of the Adjusted Consolidated Net Income (or, if the Adjusted Consolidated Net Income is a loss, minus 100% of the amount of such loss) (determined by excluding income resulting from transfers of assets by the Company or a Restricted Subsidiary to an Unrestricted Subsidiary) accrued on a cumulative basis during the period (taken as one accounting period) beginning on the first day of the fiscal quarter immediately following the Closing Date and ending on the last day of the last fiscal quarter preceding the Transaction Date for which reports have been filed pursuant to Section 4.18 plus (2) the aggregate amount of Designated Equity Proceeds received by the Company after the Closing Date, except to the extent such amount of Designated Equity Proceeds is used as a basis to Incur Indebtedness pursuant to clause (i) or (viii) of paragraph (a) under Section 4.03, plus (3) an amount equal to the net reduction in Investments (other than reductions in Permitted Investments) in any Person resulting from payments of interest on Indebtedness, dividends, repayments of loans or advances, or other transfers of assets, in each case to the Company or any Restricted Subsidiary or from the Net Cash Proceeds from the sale of any such Investment (except, in each case, to the extent any such payment or proceeds are included in the calculation of Adjusted Consolidated Net Income), or from redesignations of Unrestricted Subsidiaries as Restricted Subsidiaries (valued in each case as provided in the definition of "Investments"), not to exceed, in each case, the amount of Investments previously made by the Company or any Restricted Subsidiary in such Person or Unrestricted Subsidiary.:

Limitation on Restricted Payments. (a) The Company will shall not, and will shall not permit any of its Restricted SubsidiarySubsidiaries to, directly or indirectly, to : (i) declare or pay any dividend or make any distribution on account of Volume Holdings', the Company's or any of its Restricted Subsidiaries' Equity Interests, including any payment made in connection with respect to its Capital Stock any merger or consolidation involving the Company (other than (xA) dividends or distributions by the Company payable solely in shares of its Capital Stock Equity Interests (other than Disqualified Stock) of the Company or in options, warrants or other rights to acquire shares of such Capital Stock and (yB) pro rata dividends or distributions on Common Stock of by a Restricted Subsidiaries held by minority stockholdersSubsidiary so long as, provided that such dividends do not in the aggregate exceed case of any dividend or distribution payable on or in respect of any class or series of securities issued by a Restricted Subsidiary other than a Wholly Owned Restricted Subsidiary, the minority stockholders' Company or a Restricted Subsidiary receives at least its pro rata share of such Restricted Subsidiaries' net income from the first day dividend or distribution in accordance with its Equity Interests in such class or series of the fiscal quarter beginning immediately following the Closing Date) held by Persons other than the Company or any of its Restricted Subsidiaries, securities); (ii) purchase, redeem, retire purchase or otherwise acquire or retire for value any shares Equity Interests of Capital Stock of Volume Holdings or the Company, any Subsidiary Guarantor or an Unrestricted Subsidiary (including options, warrants or other rights to acquire such shares of Capital Stock) held by Persons other than the Company and its Wholly Owned Subsidiaries, ; (iii) make any voluntary principal payment on, or optional principal redeem, repurchase, defease or otherwise acquire or retire for value, in each case prior to any scheduled repayment or scheduled maturity, any Subordinated Indebtedness (other than the payment, or voluntary or optional redemption, repurchase, defeasance, or other acquisition or retirement for value, of Indebtedness of the Company that is subordinated in right of payment to the Notes or of any Subsidiary Guarantor that is subordinated to the Subsidiary Guaranties (other than, in each case, the purchase, repurchase or the acquisition of A) Subordinated Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in any each case due within one year of the date of acquisitionsuch payment, redemption, repurchase, defeasance, acquisition or retirement and (B) Indebtedness permitted under clauses (vii) and (ix) of Section 4.03(b)); or (iv) make any Investment, other than a Permitted Investment, in any Person Restricted Investment (all such payments or any and other actions described set forth in clauses (i) through (iv) above being collectively referred to as "RESTRICTED PAYMENTSRestricted Payments") if), unless, at the time of, and after giving effect to, the proposed of such Restricted Payment: (A) an Event of Default shall have occurred and be continuing, (B) except with respect to Investments in Restricted Subsidiaries and dividends on the Common Stock of any Subsidiary Guarantor paid to the Company or any Restricted Subsidiary, the Company could not Incur at least $1.00 of Indebtedness under the first sentence of paragraph (a) of Section 4.03 or (C) the aggregate amount of all Restricted Payments (the amount, if other than in cash, to be determined in good faith by the Board of Directors, whose determination shall be conclusive and evidenced by a Board Resolution) made after the Closing Date (after giving pro forma effect to the proposed Restricted Payment) shall exceed the sum of (1) 50% of the aggregate amount of the Adjusted Consolidated Net Income (or, if the Adjusted Consolidated Net Income is a loss, minus 100% of the amount of such loss) (determined by excluding income resulting from transfers of assets by the Company or a Restricted Subsidiary to an Unrestricted Subsidiary) accrued on a cumulative basis during the period (taken as one accounting period) beginning on the first day of the fiscal quarter immediately following the Closing Date and ending on the last day of the last fiscal quarter preceding the Transaction Date for which reports have been filed pursuant to Section 4.18 plus (2) the aggregate amount of Designated Equity Proceeds received by the Company after the Closing Date, except to the extent such amount of Designated Equity Proceeds is used as a basis to Incur Indebtedness pursuant to clause (i) or (viii) of paragraph (a) under Section 4.03, plus (3) an amount equal to the net reduction in Investments (other than reductions in Permitted Investments) in any Person resulting from payments of interest on Indebtedness, dividends, repayments of loans or advances, or other transfers of assets, in each case to the Company or any Restricted Subsidiary or from the Net Cash Proceeds from the sale of any such Investment (except, in each case, to the extent any such payment or proceeds are included in the calculation of Adjusted Consolidated Net Income), or from redesignations of Unrestricted Subsidiaries as Restricted Subsidiaries (valued in each case as provided in the definition of "Investments"), not to exceed, in each case, the amount of Investments previously made by the Company or any Restricted Subsidiary in such Person or Unrestricted Subsidiary.:

Limitation on Restricted Payments. (a) The Company will not, and will not permit any Restricted SubsidiarySubsidiary (including the Guarantor) to, directly or indirectly, to (i) declare or pay any dividend or make any distribution on or with respect to its Capital Stock held by Persons other than the Company or any Restricted Subsidiary (other than (x) dividends or distributions payable solely in shares of its or such Restricted Subsidiary’s Capital Stock (other than Disqualified Stock) or in options, warrants or other rights to acquire shares of such Capital Stock and (y) pro rata dividends or distributions on Common Stock of Restricted Subsidiaries held by minority stockholders, Subsidiaries; provided that such dividends do not in the aggregate exceed the minority stockholders' pro rata share of such Restricted Subsidiaries' net income from the first day of the fiscal quarter beginning immediately following the Closing Date) held by payments made to Persons other than the Company or any a Restricted Subsidiary shall be included in calculating whether the conditions of its Restricted Subsidiariesclause (C) of this first paragraph of Section 4.04 have been met), (ii) purchase, redeem, retire or otherwise acquire for value any shares of Capital Stock of the Company, any Subsidiary Company or the Guarantor or an Unrestricted Subsidiary (including options, warrants or other rights to acquire such shares of Capital Stock) held by Persons other than the Company and or any of its Wholly Wholly-Owned Restricted Subsidiaries, (iii) make any voluntary or optional principal payment, or voluntary or optional redemption, repurchase, defeasance, or other acquisition or retirement for value, of Indebtedness of the Company that is subordinated in right of payment to the Notes Securities or of any Subsidiary the Guarantor that is subordinated to the Subsidiary Guaranties (other than, in each case, the purchase, repurchase or the acquisition of Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in any case due within one year of the date of acquisition) Security Guarantee or (iv) make any Investment, other than a Permitted Investment, in any Person (such payments or any other actions described in clauses (i) through (iv) above being collectively "RESTRICTED PAYMENTS"“Restricted Payments”) if, at the time of, and after giving effect to, the proposed Restricted Payment: (A) an a Default or Event of Default shall have occurred and be continuing, (B) except with respect to Investments in Restricted Subsidiaries and dividends on the Common Stock of any Subsidiary Guarantor paid to the Company or any Restricted Subsidiary, the Company could not Incur at least $1.00 of Indebtedness under the first sentence of paragraph (a) of Section 4.03 or (C) the aggregate amount of all Restricted Payments (the amount, if other than in cash, to be determined in good faith by the Board of Directors, whose determination shall be conclusive and evidenced by a Board Resolution) made after the Closing Date (after giving pro forma effect to the proposed Restricted Payment) shall exceed the sum of (1) 50% of the aggregate amount of the Adjusted Consolidated Net Income (or, if the Adjusted Consolidated Net Income is a loss, minus 100% of the amount of such loss) (determined by excluding income resulting from transfers of assets by the Company or a Restricted Subsidiary to an Unrestricted Subsidiary) accrued on a cumulative basis during the period (taken as one accounting period) beginning on the first day of the fiscal quarter immediately following commencing after the Closing Date and ending on the last day of the last fiscal quarter preceding the Transaction Date for which reports have been filed with the Commission or provided to the Trustee pursuant to Section 4.18 plus (2) the aggregate amount of Designated Equity Net Cash Proceeds received by the Company after the Closing DateDate as a capital contribution or from the issuance and sale of its Capital Stock (other than Disqualified Stock) to a Person who is not a Subsidiary of the Company, including an issuance or sale permitted by this Indenture of Indebtedness of the Company for cash subsequent to the Closing Date upon the conversion of such Indebtedness into Capital Stock (other than Disqualified Stock) of the Company, or from the issuance to a Person who is not a Subsidiary of the Company of any options, warrants or other rights to acquire Capital Stock of the Company (in each case, exclusive of any convertible indebtedness, Disqualified Stock or any options, warrants or other rights that are redeemable at the option of the holder, or are required to be redeemed, prior to Final Maturity), in each case except to the extent such amount of Designated Equity Net Cash Proceeds is are used as a basis to Incur Indebtedness pursuant to clause (i) or (viii) of the second paragraph (a) under Section 4.03, plus (3) an amount equal to the net reduction in Investments (other than reductions in Permitted Investments) made pursuant to this first paragraph of this Section 4.04 in any Person resulting from payments of interest on Indebtedness, dividends, repayments of loans or advances, or other transfers of assets, in each case to the Company or any Restricted Subsidiary or from the Net Cash Proceeds from the sale of any such Investment (except, in each case, to the extent any such payment or proceeds are included in the calculation of Adjusted Consolidated Net Income), or from redesignations of Unrestricted Subsidiaries as Restricted Subsidiaries (valued in each case as provided in the definition of "“Investments"”), not to exceed, in each case, the amount of Investments previously made and treated as Restricted Payments by the Company or any Restricted Subsidiary in such Person or Unrestricted Subsidiary. The foregoing provision shall not be violated by reason of: (i) the payment of any dividend within 60 days after the date of declaration thereof if, at said date of declaration, such payment would comply with the foregoing paragraph; (ii) the redemption, repurchase, defeasance or other acquisition or retirement for value of Indebtedness that is subordinated in right of payment to the Securities including premium, if any, and accrued and unpaid interest, with the proceeds of, or in exchange for, Indebtedness Incurred under clause (iii) of the second paragraph of part (a) of Section 4.03; (iii) the repurchase, redemption or other acquisition of Capital Stock of the Company or any Restricted Subsidiary (or options, warrants or other rights to acquire such Capital Stock) in exchange for, or out of the Net Cash Proceeds of a capital contribution or a substantially concurrent offering of, shares of Capital Stock (other than Disqualified Stock) of the Company (or options, warrants or other rights to acquire such Capital Stock); provided that the Net Cash Proceeds from such sale or such capital contribution (to the extent so used for such Restricted Payment) shall be excluded from the calculation of the amounts under clause (2) of the previous paragraph; (iv) the making of any principal payment or the repurchase, redemption, 44 retirement, defeasance or other acquisition for value of Indebtedness of the Company that is subordinated in right of payment to the Securities in exchange for, or out of the Net Cash Proceeds of a capital contribution or a substantially concurrent offering of, shares of the Capital Stock (other than Disqualified Stock) of the Company (or options, warrants or other rights to acquire such Capital Stock); provided, however, that the Net Cash Proceeds from such sale or such capital contribution (to the extent so used for such Restricted Payment) shall be excluded from the calculation of the amounts under clause (2) of the previous paragraph; (v) payments or distributions, to dissenting stockholders pursuant to applicable law, pursuant to or in connection with a consolidation, merger or transfer of assets that complies with Article Five; (vi) Investments in Unrestricted Subsidiaries not to exceed, at any one time outstanding, $5 million; or (vii) Investments acquired in exchange for Capital Stock (other than Disqualified Stock) of the Company or with the Net Cash Proceeds of such Capital Stock; provided that such proceeds are so applied within 90 days of receipt thereof; provided that the Net Cash Proceeds from such sale or such capital contribution (to the extent so used for such Restricted Payment) shall be excluded from the calculation of the amounts under clause (2) of the previous paragraph; (viii) the payment of cash to (A) the holders of warrants issued pursuant to the Plan upon exercise of such warrants and (B) the holders of Securities or the Series B Notes upon conversion of the Securities or the Series B Notes, in each case in lieu of fractional shares of the Company’s Common Stock and (ix) other Restricted Payments in an aggregate amount not to exceed $10 million; provided that, except in the case of clause (i), no Default or Event of Default shall have occurred and be continuing or occur as a consequence of the actions or payments set forth therein. The value of any Restricted Payment made other than in cash shall be the fair market value thereof. The amount of any Investment “outstanding” at any time shall be deemed to be equal to the amount of such Investment on the date made, less the return of capital to the Company and its Restricted Subsidiaries with respect to such Investment (up to the amount of such Investment). Each Restricted Payment permitted pursuant to the preceding paragraph (other than the Restricted Payment referred to in clause (ii) thereof, an exchange of Capital Stock for Capital Stock or Indebtedness referred to in clause (iv) thereof and an Investment referred to in clause (vi) thereof), and the Net Cash Proceeds from any capital contribution or any issuance of Capital Stock referred to in clauses (iv) and (vii), shall be included in calculating whether the conditions of clause (C) of the first paragraph of this Section 4.04 have been met with respect to any subsequent Restricted Payments. If the proceeds of an issuance of Capital Stock of the Company are used for the redemption, repurchase or other acquisition of the Securities, or Indebtedness that is pari passu with the Securities, then the Net Cash Proceeds of such issuance shall be included in clause (C) of the first paragraph of this Section 4.04 only to the extent such proceeds are not used for such redemption, repurchase or other acquisition of Indebtedness. For purposes of determining compliance with this Section 4.04, in the event that a Restricted Payment meets the criteria of more than one of the types of Restricted Payments described in clauses (i) through (x) of the preceding paragraph, the Company, in its sole discretion, shall classify such Restricted Payment and only be required to include the amount and type of such Restricted Payment in one of such clauses.

Limitation on Restricted Payments. (a) The Company will not, and will not permit any Restricted SubsidiarySubsidiary to, directly or indirectly, to (i) declare or pay any dividend or make any distribution on or with respect to its Capital Stock (other than (x) dividends or distributions payable solely in shares of its Capital Stock (other than Disqualified Stock) or in options, warrants or other rights to acquire shares of such Capital Stock and (y) pro rata dividends or distributions on Common Capital Stock of a Restricted Subsidiaries Subsidiary held by minority stockholders, provided that such dividends do not in the aggregate exceed the minority stockholders' interest holders on no more than a pro rata share basis, measured by value and based on all outstanding Capital Stock of such Restricted Subsidiaries' net income from the first day of the fiscal quarter beginning immediately following the Closing DateSubsidiary) held by Persons other than the Company or any of its Restricted Subsidiaries, (ii) purchase, redeem, retire or otherwise acquire for value any shares of Capital Stock of (A) the Company, any Subsidiary Guarantor Company or an Unrestricted Subsidiary (including options, warrants or other rights to acquire such shares of Capital Stock) held by Persons any Person other than the Company and its or any Wholly Owned SubsidiariesRestricted Subsidiary or (B) a Restricted Subsidiary (including options, warrants or other rights to acquire such shares of Capital Stock) held by any Affiliate of the Company (other than a Wholly Owned Restricted Subsidiary) or any holder (or any Affiliate of such holder) of 5% or more of the Capital Stock of the Company, (iii) make any voluntary or optional principal payment, or voluntary or optional redemption, repurchase, defeasance, or other acquisition or retirement for value, of Indebtedness of the Company that is expressly subordinated in right of payment to the Notes or of any Subsidiary Guarantor that is subordinated to the Subsidiary Guaranties (other than, in each case, the purchase, repurchase or the acquisition of Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in any case due within one year of the date of acquisition) Notes Guarantee or (iv) make any Investment, other than a Permitted Investment, in any other Person (such payments or any other actions described in clauses (i) through (iv) above being collectively "RESTRICTED PAYMENTSRestricted Payments") if, at the time of, and after giving effect to, the proposed Restricted Payment: (A) an a Default or Event of Default shall have occurred and be continuing, (B) except with respect to Investments in Restricted Subsidiaries and dividends on the Common Stock of any Subsidiary Guarantor paid to the Company or any Restricted Subsidiary, the Company could not Incur at least $1.00 of Indebtedness under the first sentence of paragraph (a) of Section 4.03 or (C) the aggregate amount of all Restricted Payments (the amount, if other than in cash, to be determined in good faith by the Board of Directors, whose determination shall be conclusive and evidenced by a Board Resolution) made after the Closing Date (after giving pro forma effect to the proposed Restricted Payment) shall exceed the sum of (1) 50% of the aggregate amount of the Adjusted Consolidated Net Income (or, if the Adjusted Consolidated Net Income is a loss, minus 100% of the amount of such loss) (determined by excluding income resulting from transfers of assets by the Company or a Restricted Subsidiary to an Unrestricted Subsidiary) accrued on a cumulative basis during the period (taken as one accounting period) beginning on the first day of the fiscal quarter beginning immediately following the Closing Date and ending on the last day of the last fiscal quarter preceding the Transaction Date for which reports have been filed with the Commission or provided to the Trustee pursuant to Section 4.18 plus PLUS (2) the aggregate amount of Designated Equity Net Cash Proceeds received by the Company after the Closing DateDate as a capital contribution or from the issuance and sale permitted by this Indenture of its Capital Stock (other than Disqualified Stock) to a Person who is not a Subsidiary of the Company, including the proceeds of an issuance or sale permitted by this Indenture of Indebtedness of the Company for cash subsequent to the Closing Date upon the conversion of such Indebtedness into Capital Stock (other than Disqualified Stock) of the Company, or from the issuance to a Person who is not a Subsidiary of the Company of any options, warrants or other rights to acquire Capital Stock of the Company (in each case, exclusive of any Disqualified Stock or any options, warrants or other rights that are redeemable at the option of the holder, or are required to be redeemed, prior to the Stated Maturity of the Notes), in each case except to the extent such amount of Designated Equity Net Cash Proceeds is are used as a basis to Incur Indebtedness pursuant to clause (i) or (viii) of the second paragraph (a) under Section 4.03, plus 4.03 PLUS (3) an amount equal to the net reduction in Investments (other than reductions in Permitted InvestmentsInvestments and Investments under clause (vi), (viii) or (xii) of the second paragraph of this Section 4.04) in any Person resulting from payments of interest on Indebtedness, dividends, distributions, repayments of loans or advances, or other transfers of assets, in each case to the Company or any Restricted Subsidiary or from the Net Cash Proceeds from the sale or other disposition of any such Investment (except, in each case, to the extent of any gain on such payment sale or proceeds are other disposition that would be included in the calculation of Adjusted Consolidated Net IncomeIncome for purposes of clause (C)(1) above), or from redesignations of Unrestricted Subsidiaries as Restricted Subsidiaries (valued in each case as provided in the definition of "Investments"), not to exceed, in each case, the amount of Investments previously made by the Company or any Restricted Subsidiary in such Person or Unrestricted Subsidiary.. The foregoing provision shall not be violated by reason of:

Limitation on Restricted Payments. (a) The Company will not, and will not permit any Restricted SubsidiarySubsidiary to, directly or indirectly, to (i) declare or pay any dividend or make any distribution on or with respect to its Capital Stock (other than (x) dividends or distributions payable solely in shares of its Capital Stock (other than Disqualified Stock) or in options, warrants or other rights to acquire shares of such Capital Stock and (y) pro rata dividends or distributions on Common Stock of Restricted Subsidiaries held by minority stockholders, provided that such dividends do not in the aggregate exceed the minority stockholders' pro rata share of such Restricted Subsidiaries' net income from the first day of the fiscal quarter beginning immediately following the Closing Date) held by Persons other than the Company or any of its Restricted Subsidiaries, (ii) purchase, redeem, retire or otherwise acquire for value any shares of Capital Stock of (A) the Company, any Subsidiary Guarantor Company or an Unrestricted Subsidiary (including options, warrants or other rights to acquire such shares of Capital Stock) held by Persons any Person or (B) a Restricted Subsidiary (including options, warrants or other rights to acquire such shares of Capital Stock) held by any Affiliate of the Company (other than the Company and its a Wholly Owned SubsidiariesRestricted Subsidiary) or any holder (or any Affiliate of such holder) of 5% or more of the Capital Stock of the Company, (iii) make any voluntary or optional principal payment, or voluntary or optional redemption, repurchase, defeasance, or other acquisition or retirement for value, of Indebtedness of the Company that is subordinated in right of payment to the Notes or of any Subsidiary Guarantor that is subordinated to the Subsidiary Guaranties (other than, in each case, the purchase, repurchase or the acquisition of Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in any case due within one year of after the date of such purchase, repurchase or acquisition) or (iv) make any Investment, other than a Permitted Investment, in any Person (such payments or any other actions described in clauses (i) through (iv) above being collectively "RESTRICTED PAYMENTSRestricted Payments") if, at the time of, and after giving effect to, the proposed Restricted Payment: (A) an a Default or Event of Default shall have occurred and be continuing, (B) except with respect to Investments in Restricted Subsidiaries and dividends on the Common Stock of any Subsidiary Guarantor paid to the Company or any Restricted Subsidiary, the Company could not Incur at least $1.00 of Indebtedness under the first sentence of paragraph (a) of Section 4.03 or (C) the aggregate amount of all Restricted Payments (the amount, if other than in cash, to be determined in good faith by the Board of Directors, whose determination shall be conclusive and evidenced by a Board Resolution) made after the Closing Date (after giving pro forma effect to the proposed Restricted Payment) shall exceed the sum of (1) 50% of the aggregate amount of the Adjusted Consolidated Net Income (or, if the Adjusted Consolidated Net Income is a loss, minus 100% of the amount of such loss) (determined by excluding income resulting from transfers of assets by the Company or a Restricted Subsidiary to an Unrestricted Subsidiary) accrued on a cumulative basis during the period (taken as one accounting period) beginning on the first day of the fiscal quarter immediately following the Closing Date and ending on the last day of the last fiscal quarter preceding the Transaction Date for which reports have been filed with the Commission or provided to the Trustee pursuant to Section 4.18 plus (2) the aggregate amount of Designated Equity Net Cash Proceeds received by the Company after the Closing DateDate from the issuance and sale permitted by this Indenture of its Capital Stock (other than Disqualified Stock) to a Person who is not a Subsidiary of the Company, except including an issuance or sale permitted by this Indenture of Indebtedness of the Company for cash subsequent to the extent Closing Date upon the conversion of such amount of Designated Equity Proceeds is used as a basis to Incur Indebtedness pursuant to clause into Capital Stock (i) or (viiiother than Disqualified Stock) of paragraph the Company, or from the issuance to a Person who is not a Subsidiary of the Company of any options, warrants or other rights to acquire Capital Stock of the Company (ain each case, exclusive of any Disqualified Stock or any options, warrants or other rights that are redeemable at the option of the holder, or are required to be redeemed, prior to the Stated Maturity of the Notes) under Section 4.03, plus (3) an amount equal to the net reduction in Investments (other than reductions in Permitted InvestmentsInvestments and Investments made pursuant to clause (vi), (ix) or (x) of the following paragraph) in any Person resulting from payments of interest on Indebtedness, dividends, repayments of loans or advances, or other transfers of assets, in each case to the Company or any Restricted Subsidiary or from the Net Cash Proceeds from the sale of any such Investment (except, in each case, to the extent any such payment or proceeds are included in the calculation of Adjusted Consolidated Net Income), or from redesignations of Unrestricted Subsidiaries as Restricted Subsidiaries (valued in each case as provided in the definition of "InvestmentsInvestment"), not to exceed, in each case, the amount of Investments previously made by the Company or any Restricted Subsidiary in such Person or Unrestricted Subsidiary.. The foregoing provision shall not be violated by reason of: (i) the payment of any dividend within 60 days after the date of declaration thereof if, at said date of declaration, such payment would comply with the foregoing paragraph; (ii) the redemption, repurchase, defeasance or other acquisition or retirement for value of Indebtedness that is subordinated in right of payment to the Notes including premium, if any, and accrued and unpaid interest, with the proceeds of, or in exchange for, Indebtedness Incurred under clause (iii) of the second paragraph of Section 4.03(a); (iii) the repurchase, redemption or other acquisition of Capital Stock of the Company or an Unrestricted Subsidiary (or options, warrants or other rights to acquire such Capital Stock) in exchange for, or out of the proceeds of a substantially concurrent offering of, shares of Capital Stock (other than Disqualified Stock) of the Company (or options, warrants or other rights to acquire such Capital Stock); (iv) the making of any principal payment or the repurchase,

Limitation on Restricted Payments. (a) The Company will not, and will not permit any Restricted SubsidiarySubsidiary to, directly or indirectly, to (i) declare or pay any dividend or make any distribution on or with respect to its Capital Stock (other than (x) dividends or distributions payable solely in shares of its Capital Stock (other than Disqualified Stock) or in options, warrants or other rights to acquire shares of such Capital Stock and (y) pro rata dividends or distributions on Common Stock of Restricted Subsidiaries held by minority stockholders, provided ; PROVIDED that such dividends do not in the aggregate exceed the minority stockholders' pro rata share of such Restricted Subsidiaries' net income from the first day of the fiscal quarter beginning immediately following the Closing Date) held by Persons other than the Company or any of its Restricted Subsidiaries, (ii) purchase, redeem, retire or otherwise acquire for value any shares of Capital Stock of (x) the Company, any Subsidiary Guarantor Company or an Unrestricted Subsidiary (including options, warrants or other rights to acquire such shares of Capital Stock) held by Persons any Person other than the Company and its or any Wholly Owned SubsidiariesRestricted Subsidiary or (y) a Restricted Subsidiary (including options, warrants or other rights to acquire such shares of Capital Stock) held by any Affiliate of the Company (other than a Wholly Owned Restricted Subsidiary) or any holder (or any Affiliate of such holder) of 5% or more of the Capital Stock of the Company, (iii) make any voluntary or optional principal payment, or voluntary or optional redemption, repurchase, defeasance, or other acquisition or retirement for value, of Indebtedness of the Company (other than Indebtedness outstanding on the Closing Date) that is subordinated in right of payment to the Notes or of any Subsidiary Guarantor that is subordinated to the Subsidiary Guaranties (other than, in each case, than the purchase, repurchase or the acquisition of Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in any case due within one year of the date of acquisition) or (iv) make any Investment, other than a Permitted Investment, in any Person (such payments or any other actions described in clauses (i) through (iv) being collectively "RESTRICTED PAYMENTS") if, at the time of, and after giving effect to, the proposed Restricted Payment: (A) an Event of Default shall have occurred and be continuing, (B) except with respect to Investments in Restricted Subsidiaries and dividends on the Common Stock of any Subsidiary Guarantor paid to the Company or any Restricted Subsidiary, the Company could not Incur at least $1.00 of Indebtedness under the first sentence of paragraph (a) of Section 4.03 or (C) the aggregate amount of all Restricted Payments (the amount, if other than in cash, to be determined in good faith by the Board of Directors, whose determination shall be conclusive and evidenced by a Board Resolution) made after the Closing Date (after giving pro forma effect to the proposed Restricted Payment) shall exceed the sum of (1) 50% of the aggregate amount of the Adjusted Consolidated Net Income (or, if the Adjusted Consolidated Net Income is a loss, minus 100% of the amount of such loss) (determined by excluding income resulting from transfers of assets by the Company or a Restricted Subsidiary to an Unrestricted Subsidiary) accrued on a cumulative basis during the period (taken as one accounting period) beginning on the first day of the fiscal quarter immediately following the Closing Date and ending on the last day of the last fiscal quarter preceding the Transaction Date for which reports have been filed pursuant to Section 4.18 plus (2) the aggregate amount of Designated Equity Proceeds received by the Company after the Closing Date, except to the extent such amount of Designated Equity Proceeds is used as a basis to Incur Indebtedness pursuant to clause (i) or (viii) of paragraph (a) under Section 4.03, plus (3) an amount equal to the net reduction in Investments (other than reductions in Permitted Investments) in any Person resulting from payments of interest on Indebtedness, dividends, repayments of loans or advances, or other transfers of assets, in each case to the Company or any Restricted Subsidiary or from the Net Cash Proceeds from the sale of any such Investment (except, in each case, to the extent any such payment or proceeds are included in the calculation of Adjusted Consolidated Net Income), or from redesignations of Unrestricted Subsidiaries as Restricted Subsidiaries (valued in each case as provided in the definition of "Investments"), not to exceed, in each case, the amount of Investments previously made by the Company or any Restricted Subsidiary in such Person or Unrestricted Subsidiary.clauses

Limitation on Restricted Payments. (a) The Company will not, and will not permit any Restricted Subsidiaryof its Subsidiaries to, directly or indirectly, to (i) declare or pay any dividend or make any other payment or distribution on account of the Company's or any of its Subsidiary's Equity Interests (including, without limitation, any payment in connection with respect to its Capital Stock (any merger or consolidation) other than (x) dividends or distributions (A) paid or payable solely in shares of its Capital Stock Equity Interests (other than Disqualified Stock) or in options, warrants or other rights to acquire shares of such Capital Stock and (y) pro rata dividends or distributions on Common Stock of Restricted Subsidiaries held by minority stockholders, provided that such dividends do not in the aggregate exceed the minority stockholders' pro rata share of such Restricted Subsidiaries' net income from the first day of the fiscal quarter beginning immediately following the Closing DateCompany or (B) held by Persons other than paid or payable to the Company or any Subsidiary of its Restricted Subsidiaries, the Company; (ii) purchase, redeem, retire redeem or otherwise acquire or retire for value any shares of Capital Stock Equity Interests of the Company, Company or any direct or indirect parent of the Company or other Affiliate of the Company or any Subsidiary Guarantor or an Unrestricted Subsidiary of the Company (including options, warrants or other rights to acquire such shares of Capital Stock) held by Persons other than any such Equity Interests owned by the Company and its Wholly Owned Subsidiaries, or any Subsidiary of the Company or upon redemption of the Series A Voting Preferred Stock or the Series B Nonvoting Preferred Stock in accordance with the terms of the Amendment); (iii) make any voluntary principal payment on, or optional principal purchase, redeem, defease or otherwise acquire or retire for value prior to the scheduled maturity, scheduled repayment or scheduled sinking fund payment, any Subordinated Indebtedness (except, if no Default or voluntary Event of Default is continuing or optional would result therefrom, any such payment, purchase, redemption, repurchase, defeasance, defeasance or other acquisition or retirement for valuevalue made (A) out of Excess Proceeds available for general corporate purposes if such payment or other action is required by the indenture or other agreement or instrument pursuant to which such Subordinated Indebtedness was issued, or (B) upon the occurrence of a Change of Control if (1) such payment or other action is required by the indenture or other agreement or instrument pursuant to which such Subordinated Indebtedness of was issued and (2) the Company that is subordinated in right has purchased all Notes properly tendered pursuant to Section 4.1 resulting from such Change of payment to the Notes or of any Subsidiary Guarantor that is subordinated to the Subsidiary Guaranties (other than, in each case, the purchase, repurchase or the acquisition of Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in any case due within one year of the date of acquisition) Control); or (iv) make any Investment, other than a Permitted Investment, in any Person Restricted Investment (all such payments or any and other actions described set forth in clauses (i) through (iv) above being collectively referred to as "RESTRICTED PAYMENTSRestricted Payments") if), unless, at the time of, of and after giving effect to, the proposed to such Restricted Payment: (A) an Event of Default shall have occurred and be continuing, (B) except with respect to Investments in Restricted Subsidiaries and dividends on the Common Stock of any Subsidiary Guarantor paid to the Company or any Restricted Subsidiary, the Company could not Incur at least $1.00 of Indebtedness under the first sentence of paragraph (a) of Section 4.03 or (C) the aggregate amount of all Restricted Payments (the amount, if other than in cash, to be determined in good faith by the Board of Directors, whose determination shall be conclusive and evidenced by a Board Resolution) made after the Closing Date (after giving pro forma effect to the proposed Restricted Payment) shall exceed the sum of (1) 50% of the aggregate amount of the Adjusted Consolidated Net Income (or, if the Adjusted Consolidated Net Income is a loss, minus 100% of the amount of such loss) (determined by excluding income resulting from transfers of assets by the Company or a Restricted Subsidiary to an Unrestricted Subsidiary) accrued on a cumulative basis during the period (taken as one accounting period) beginning on the first day of the fiscal quarter immediately following the Closing Date and ending on the last day of the last fiscal quarter preceding the Transaction Date for which reports have been filed pursuant to Section 4.18 plus (2) the aggregate amount of Designated Equity Proceeds received by the Company after the Closing Date, except to the extent such amount of Designated Equity Proceeds is used as a basis to Incur Indebtedness pursuant to clause (i) or (viii) of paragraph (a) under Section 4.03, plus (3) an amount equal to the net reduction in Investments (other than reductions in Permitted Investments) in any Person resulting from payments of interest on Indebtedness, dividends, repayments of loans or advances, or other transfers of assets, in each case to the Company or any Restricted Subsidiary or from the Net Cash Proceeds from the sale of any such Investment (except, in each case, to the extent any such payment or proceeds are included in the calculation of Adjusted Consolidated Net Income), or from redesignations of Unrestricted Subsidiaries as Restricted Subsidiaries (valued in each case as provided in the definition of "Investments"), not to exceed, in each case, the amount of Investments previously made by the Company or any Restricted Subsidiary in such Person or Unrestricted Subsidiary.:

Limitation on Restricted Payments. (a) The Company will not, and will not permit any Restricted Subsidiary, directly or indirectly, to (i) declare or pay any dividend or make any distribution on or with respect to its Capital Stock (other than (x) dividends or distributions payable solely in shares of its Capital Stock (other than Disqualified Stock) or in options, warrants or other rights to acquire shares of such Capital Stock and (y) pro rata dividends or distributions on Common Stock of Restricted Subsidiaries held by minority stockholders, provided that such dividends do not in the aggregate exceed the minority stockholders' pro rata share of such Restricted Subsidiaries' net income from the first day of the fiscal quarter beginning immediately following the Closing Date) held by Persons other than the Company or any of its Restricted Subsidiaries, (ii) purchase, redeem, retire or otherwise acquire for value any shares of Capital Stock of the Company, any Subsidiary Guarantor or an Unrestricted Subsidiary (including options, warrants or other rights to acquire such shares of Capital Stock) held by Persons other than the Company and its Wholly Owned Subsidiaries, (iii) make any voluntary or optional principal payment, or voluntary or optional redemption, repurchase, defeasance, or other acquisition or retirement for value, of Indebtedness of the Company that is subordinated in right of payment to the Notes or of any Subsidiary Guarantor that is subordinated to the Subsidiary Guaranties Note Guarantee (other than, in each case, the purchase, repurchase or the acquisition of Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in any case due within one year of the date of acquisition) or (iv) make any Investment, other than a Permitted Investment, in any Person (such payments or any other actions described in clauses (i) through (iv) being collectively "RESTRICTED PAYMENTSRestricted Payments") if, at the time of, and after giving effect to, the proposed Restricted Payment: (A) an a Default or Event of Default shall have occurred and be continuing, (B) except with respect to Investments in Restricted Subsidiaries and dividends on the Common Stock of any Subsidiary Guarantor paid to the Company or any Restricted SubsidiaryGuarantor, the Company could not Incur at least $1.00 of Indebtedness under the first sentence of paragraph (a) of Section 4.03 or (C) the aggregate amount of all Restricted Payments (the amount, if other than in cash, to be determined in good faith by the Board of Directors, whose determination shall be conclusive and evidenced by a Board Resolution) made after the Closing Date (after giving pro forma effect to the proposed Restricted Payment) shall exceed the sum of (1) 50% of the aggregate amount of the Adjusted Consolidated Net Income (or, if the Adjusted Consolidated Net Income is a loss, minus 100% of the amount of such loss) (determined by excluding income resulting from transfers of assets by the Company or a Restricted Subsidiary to an Unrestricted Subsidiary) accrued on a cumulative basis during the period (taken as one accounting period) beginning on the first day of the fiscal quarter immediately following the Closing Date and ending on the last day of the last fiscal quarter preceding the Transaction Date for which reports have been filed pursuant to Section 4.18 plus (2) the aggregate amount of Designated Equity Net Cash Proceeds received by the Company or any Guarantor after the Closing DateDate from the issuance and sale permitted by the Indentures of its Capital Stock (other than Disqualified Stock) to a Person who is not a Subsidiary of the Company or any Guarantor or from the issuance to a Person who is not a Subsidiary of the Company or any Guarantor of any options, warrants or other rights to acquire Capital Stock of the Company (in each case, exclusive of any Disqualified Stock or any options, warrants or other rights that are redeemable at the option of the holder, or are required to be redeemed, prior to the Stated Maturity of the Notes), in each case except to the extent such amount of Designated Equity Net Cash Proceeds is are used as a basis to Incur Indebtedness pursuant to clause (i) or (viii) of the second paragraph (a) under Section 4.03, plus (3) an amount equal to the net reduction in Investments (other than reductions in Permitted Investments) in any Person resulting from payments of interest on Indebtedness, dividends, repayments of loans or advances, or other transfers of assets, in each case to the Company or any Restricted Subsidiary or from the Net Cash Proceeds from the sale of any such Investment (except, in each case, to the extent any such payment or proceeds are included in the calculation of Adjusted Consolidated Net Income), or from redesignations of Unrestricted Subsidiaries as Restricted Subsidiaries (valued in each case as provided in the definition of "Investments"), not to exceed, in each case, the amount of Investments previously made by the Company or any Restricted Subsidiary in such Person or Unrestricted Subsidiary.. The foregoing provision shall not be violated by reason of:

Limitation on Restricted Payments. (a) The Company will not, and will not permit any Restricted SubsidiarySubsidiary to, directly or indirectly, to (i) declare or pay any dividend or make any distribution on or with respect to its Capital Stock (other than (x) dividends or distributions payable solely in shares of its Capital Stock (other than Disqualified Stock) or in options, warrants or other rights to acquire shares of such Capital Stock and (y) pro rata dividends or distributions on Common Stock of Restricted Subsidiaries held by minority stockholders, provided that such dividends do not in the aggregate exceed the minority stockholders' pro rata share of such Restricted Subsidiaries' net income from the first day of the fiscal quarter beginning immediately following the Closing Date) held by Persons other than the Company or any of its Restricted Subsidiaries, (ii) purchase, redeem, retire or otherwise acquire for value any shares of Capital Stock of (A) the Company, any Subsidiary Guarantor Company or an Unrestricted Subsidiary (including options, warrants or other rights to acquire such shares of Capital Stock) held by Persons any Person or (B) a Restricted Subsidiary (including options, warrants or other rights to acquire such shares of Capital Stock) held by any Affiliate of the Company (other than the Company and its a Wholly Owned SubsidiariesRestricted Subsidiary) or any holder (or any Affiliate of such holder) of 5% or more of the Capital Stock of the Company, (iii) make any voluntary or optional principal payment, or voluntary or optional redemption, repurchase, defeasance, or other acquisition or retirement for value, of Indebtedness of the Company that is subordinated in right of payment to the Notes or of any Subsidiary Guarantor that is subordinated to the Subsidiary Guaranties (other than, in each case, the purchase, repurchase or the acquisition of Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in any case due within one year of the date of acquisition) or (iv) make any Investment, other than a Permitted Investment, in any Person (such payments or any other actions described in clauses (i) through (iv) above being collectively "RESTRICTED PAYMENTS") if, at the time of, and after giving effect to, the proposed Restricted Payment: (A) an a Default or Event of Default shall have occurred and be continuing, (B) except with respect to Investments in Restricted Subsidiaries and dividends on the Common Stock case of any Subsidiary Guarantor paid to the Company or any Restricted Subsidiaryan Investment, the Company could not Incur at least $1.00 of Indebtedness under the first sentence of paragraph (a) of Section 4.03 or (C) the aggregate amount of all Restricted Payments (the amount, if other than in cash, to be determined in good faith by the Board of Directors, whose determination shall be conclusive and evidenced by a Board Resolution; provided that Restricted Payments, to the extent made solely in Capital Stock other than Disqualified Stock, shall for purposes of this clause (C) be deemed to be in an amount equal to zero) made after the Closing Date (after giving pro forma effect to the proposed Restricted Payment) shall exceed the sum of (1) 50% of the aggregate amount of the Adjusted Consolidated Net Income (or, if the Adjusted Consolidated Net Income is a loss, minus 100% of the amount of such loss) (determined by excluding income resulting from transfers of assets by the Company or a Restricted Subsidiary to an Unrestricted Subsidiary) accrued on a cumulative basis during the period (taken as one accounting period) beginning on the first day of the fiscal quarter immediately following the Closing Date and ending on the last day of the last fiscal quarter preceding the Transaction Date for which reports have been filed with the Commission or provided to the Trustee pursuant to Section 4.18 plus (2) the aggregate amount of Designated Equity Net Cash Proceeds received by the Company after the Closing Date, except to Date from the extent such amount issuance and sale permitted by this Indenture of Designated Equity Proceeds is used as a basis to Incur Indebtedness pursuant to clause (i) or (viii) of paragraph (a) under Section 4.03, plus (3) an amount equal to the net reduction in Investments its Capital Stock (other than reductions in Permitted InvestmentsDisqualified Stock) in any to a Person resulting from payments who is not a Subsidiary of interest on Indebtednessthe Company, dividends, repayments including an issuance or sale permitted by this Indenture of loans or advances, or other transfers Indebtedness of assets, in each case the Company for cash subsequent to the Company or any Restricted Subsidiary Closing Date upon the conversion of such Indebtedness into Capital Stock (other than Disqualified Stock) of the Company, or from the Net Cash Proceeds from issuance to a Person who is not a Subsidiary of the sale Company of any such Investment options, warrants or other rights to acquire Capital Stock of the Company (except, in each case, exclusive of any Disqualified Stock or any options, warrants or other rights that are redeemable at the option of the holder, or are required to be redeemed, prior to the extent any such payment or proceeds are included in the calculation of Adjusted Consolidated Net Income), or from redesignations of Unrestricted Subsidiaries as Restricted Subsidiaries (valued in each case as provided in the definition of "Investments"), not to exceed, in each case, the amount of Investments previously made by the Company or any Restricted Subsidiary in such Person or Unrestricted Subsidiary.Stated

Limitation on Restricted Payments. (a) The Company will (i) may not, and will not permit any Restricted Subsidiary, directly or indirectly, to (i) declare or pay any dividend dividend, or make any distribution on or with distribution, in respect to of its Capital Stock or to the holders thereof (other than (x) in their capacity as such), excluding any dividends or distributions payable solely in shares of its Capital Stock (other than Disqualified Stock) or in options, warrants or other rights to acquire shares of such its Capital Stock (other than Disqualified Stock); (ii) may not, and may not permit any Restricted Subsidiary to, purchase, redeem, or otherwise retire or acquire for value (ya) pro rata dividends or distributions on Common any Capital Stock of Restricted Subsidiaries held by minority stockholders, provided that such dividends do not in the aggregate exceed the minority stockholders' pro rata share of such Restricted Subsidiaries' net income from the first day of the fiscal quarter beginning immediately following the Closing Date) held by Persons other than the Company or any Related Person of its Restricted Subsidiariesthe Company; or (b) any options, (ii) purchase, redeem, retire warrants or otherwise rights to purchase or acquire for value any shares of Capital Stock of the Company, Company or any Subsidiary Guarantor Related Person of the Company or an Unrestricted Subsidiary (including options, warrants any securities convertible or other rights to acquire such exchangeable into shares of Capital StockStock of the Company or any Related Person of the Company; (iii) held by Persons may not make, or permit any Restricted Subsidiary to make, any Investment in, or payment on a Guarantee of any obligation of, any Person, other than the Company or a Restricted Subsidiary of the Company, except for Permitted Investments; and its Wholly Owned Subsidiaries(iv) may not, (iii) make and may not permit any voluntary or optional principal paymentRestricted Subsidiary to, or voluntary or optional redemptionredeem, defease, repurchase, defeasance, retire or other acquisition otherwise acquire or retirement retire for value, of Indebtedness prior to any scheduled maturity, repayment or sinking fund payment, Debt of the Company that which is subordinated subordinate in right of payment to the Notes or Securities (each of any Subsidiary Guarantor that is subordinated to the Subsidiary Guaranties (other than, in each case, the purchase, repurchase or the acquisition of Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in any case due within one year of the date of acquisition) or (iv) make any Investment, other than a Permitted Investment, in any Person (such payments or any other actions described in clauses (i) through (iv) being collectively a "RESTRICTED PAYMENTSRestricted Payment") if, at the time of, and after giving effect to, the proposed Restricted Payment: (A1) a Default or an Event of Default shall have occurred and be is continuing, ; or (B2) except with respect upon giving effect to Investments in such Restricted Subsidiaries and dividends on the Common Stock of any Subsidiary Guarantor paid to the Company or any Restricted SubsidiaryPayment, the Company could not Incur at least $1.00 of Indebtedness under additional Debt pursuant to the provisions of the first sentence of paragraph (a) of Section 4.03 1007; or (C3) upon giving effect to such Restricted Payment, the aggregate amount of all Restricted Payments (the amountfrom April 25, if other than in cash, to be determined in good faith by the Board of Directors, whose determination shall be conclusive and evidenced by a Board Resolution) made after the Closing Date (after giving pro forma effect to the proposed Restricted Payment) shall exceed 1996 exceeds the sum of of: (1a) 50% of the aggregate amount of the Adjusted cumulative Consolidated Net Income (or, if in the Adjusted case Consolidated Net Income is a lossshall be negative, minus less 100% of such deficit) since the amount of such loss) (determined by excluding income resulting from transfers of assets by the Company or a Restricted Subsidiary to an Unrestricted Subsidiary) accrued on a cumulative basis during the period (taken as one accounting period) beginning on the first day end of the last full fiscal quarter immediately following the Closing Date and ending on prior to April 25, 1996 through the last day of the last full fiscal quarter ending immediately preceding the Transaction Date for which reports have been filed pursuant to Section 4.18 date of such Restricted Payment; plus (2b) the aggregate amount of Designated Equity Proceeds received by the Company after the Closing Date, except to the extent such amount of Designated Equity Proceeds is used as a basis to Incur Indebtedness pursuant to clause (i) or (viii) of paragraph (a) under Section 4.03, $5 million; plus (3c) an amount equal to 100% of the net reduction in Investments (other than reductions in Permitted Investments) in any Person Unrestricted Subsidiary resulting from payments of interest on IndebtednessDebt, dividends, repayments of loans or advances, or other transfers of assets, in each case to the Company or any Restricted Subsidiary or of the Company from the Net Cash Proceeds from the sale of any such Investment Unrestricted Subsidiary (except, in each case, except to the extent that any such payment or proceeds are is included in the calculation of Adjusted Consolidated Net Income), ) or from redesignations of Unrestricted Subsidiaries as Restricted Subsidiaries Subsidiaries; PROVIDED that the amount included in this clause (valued in each case as provided in the definition of "Investments"), c) shall not to exceed, in each case, exceed the amount of Investments previously made by the Company and its Restricted Subsidiaries in such Unrestricted Subsidiary; PROVIDED, FURTHER, that the Company or a Restricted Subsidiary of the Company may make any Restricted Payment with the aggregate net proceeds received after April 25, 1996, including the fair value of property other than cash (determined in good faith by the Board of Directors, as conclusively evidenced by a Board Resolution filed with the Trustee), as capital contributions to the Company or from the issuance (other than to a Restricted Subsidiary) of Capital Stock (other than Disqualified Stock) of the Company and warrants, rights or options on Capital Stock (other than Disqualified Stock) of the Company and the principal amount of Debt of the Company that has been converted into Capital Stock (other than Disqualified Stock and other than by a Restricted Subsidiary) of the Company after April 25, 1996. Notwithstanding the foregoing, the Company may (i) pay any dividend on Capital Stock of any class within 60 days after the declaration thereof if, on the date when the dividend was declared, the Company could have paid such dividend in accordance with the foregoing provisions; (ii) repurchase any shares of its Common Equity or options to acquire its Common Equity from Persons who were formerly officers or employees of the Company, PROVIDED that the aggregate amount of all such repurchases made pursuant to this clause (ii) shall not exceed $2 million, plus the aggregate cash proceeds received by the Company since April 25, 1996 from issuances of its Common Equity or options to acquire its Common Equity to members, officers, managers, directors and employees of the Company or any of its Subsidiaries; (iii) the Company and its Restricted Subsidiaries may refinance any Debt otherwise permitted by clause (iv) of the second paragraph of Section 1007; and (iv) the Company and its Restricted Subsidiaries may retire or repurchase any Capital Stock or Subordinated Debt of the Company in exchange for, or out of the proceeds of the substantially concurrent sale (other than to a Restricted Subsidiary of the Company) of, Capital Stock (other than Disqualified Stock) of the Company. If the Company makes a Restricted Payment which, at the time of the making of such Restricted Payment, would in the good faith determination of the Company be permitted under this Indenture, such Person Restricted Payment shall be deemed to have been made in compliance with this Indenture notwithstanding any subsequent adjustments made in good faith to the Company financial statements affecting Consolidated Net Income for any period. In determining the aggregate amount expended or Unrestricted Subsidiaryavailable for Restricted Payments in accordance with clause (3) of the first paragraph above, (1) no amounts expended under clauses (iii) or (iv) of the immediately preceding paragraph shall be included, (2) 100% of the amounts expended under clauses (i) and (ii) of the immediately preceding paragraph shall be included, and (3) no amount shall be credited in respect of issuances of Capital Stock in transactions under clause (iv) of the immediately preceding paragraph.

Limitation on Restricted Payments. (a) The Company will shall not, --------------------------------- and will shall not permit any Restricted SubsidiarySubsidiary to, directly or indirectly, to (i) declare or pay any dividend or make any distribution on or with respect to its Capital Stock (other than (x) dividends or distributions payable solely in shares of its Capital Stock (other than Disqualified Redeemable Stock) or in options, warrants or other rights to acquire shares of such Capital Stock and (y) pro rata dividends or distributions on Common Stock of Restricted Subsidiaries held by minority stockholders, provided that such dividends do not in the aggregate exceed the minority stockholders' pro rata share of such Restricted Subsidiaries' cumulative net income from the first day of the fiscal quarter beginning immediately following the Closing Date) held by Persons other than the Company or any of its Restricted Subsidiaries), (ii) purchase, redeem, retire or otherwise acquire for value any shares of Capital Stock of (A) the CompanyCompany (including options, warrants or other rights to acquire such shares of Capital Stock) held by any Subsidiary Guarantor Person or an Unrestricted (B) a Subsidiary (including options, warrants or other rights to acquire such shares of Capital Stock) held by Persons any Affiliate of the Company (other than the Company and its a Wholly Owned SubsidiariesSubsidiary) or any holder (or any Affiliate of such holder) of 5% or more of the Capital Stock of the Company, (iii) make any voluntary or optional principal payment, or voluntary or optional redemption, repurchase, defeasance, or other acquisition or retirement for value, of Indebtedness of the Company that is subordinated in right of payment to the Notes or of any Subsidiary Guarantor that is subordinated to the Subsidiary Guaranties (other than, in each case, than the purchase, repurchase or the acquisition of Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in any each case due within one year of the date of acquisition) or (iv) make any Investment, other than a Permitted Investment, in any Person (such payments or any other actions described in clauses (i) through (iv) being collectively "RESTRICTED PAYMENTSRestricted ---------- Payments") if, at the time of, and after giving effect to, the proposed -------- Restricted Payment: (A) an a Default or Event of Default shall have occurred and be continuing, continuing or (B) except with respect to Investments in Restricted Subsidiaries and dividends on the Common Stock of any Subsidiary Guarantor paid to the Company or any Restricted Subsidiary, the Company could not Incur at least $1.00 of Indebtedness under the first sentence of paragraph (a) of Section 4.03 or (C) the aggregate amount of all Restricted Payments (the amount, if other than in cash, to be determined in good faith by the Board of Directors, whose determination shall be conclusive and evidenced by a Board Resolution) made after the Closing Date (after giving pro forma effect to the proposed Restricted Payment) shall exceed the sum of (1) 50% of the aggregate amount of the Adjusted Consolidated Net Income (or, if the Adjusted Consolidated Net Income is a loss, minus 100% of the amount of such loss) (determined by excluding income resulting from transfers of assets by the Company or a Restricted Subsidiary to an Unrestricted a Subsidiary) accrued on a cumulative basis during the period (taken as one accounting period) beginning on the first day of the fiscal quarter immediately following the Closing Date and ending on the last day of the last fiscal quarter preceding the Transaction Date for which reports have been filed pursuant made available to Section 4.18 the holders of the Notes plus (2) the aggregate amount of Designated Equity Net Cash Proceeds received by the Company after the Closing DateDate from the issuance and sale of its Capital Stock (other than Redeemable Stock) to a Person who is not a Subsidiary of the Company or from the issuance to a Person who is not a Subsidiary of the Company of any options, except warrants or other rights to acquire Capital Stock of the Company (in each case, exclusive of any Redeemable Stock or any options, warrants or other rights that are redeemable at the option of the holder, or are required to be redeemed, prior to the extent such amount Stated Maturity of Designated Equity Proceeds is used as a basis to Incur Indebtedness pursuant to clause (ithe Notes) or (viii) of paragraph (a) under Section 4.03, plus (3) an amount equal to the net reduction after the Closing Date in Investments (other than reductions in Permitted Investments) in any Person resulting from payments of interest on Indebtedness, dividends, repayments of loans or advances, or other transfers of assets, in each case to the Company or any Restricted Subsidiary or from the Net Cash Proceeds from the sale of any such Investment (except, in each case, to the extent any such payment or proceeds are included in the calculation of Adjusted Consolidated Net Income), or from redesignations of Unrestricted Subsidiaries as Restricted Subsidiaries (valued in each case as provided in the definition of "Investments"), not to exceed, in each case, the amount of Investments previously made by the Company or any Restricted Subsidiary in such Person or Unrestricted SubsidiaryPerson.

Limitation on Restricted Payments. Declare or pay any dividend (aother than dividends payable solely in common stock of the Person making such dividend) The Company will noton, and will or make any payment on account of, or set apart assets for a sinking or other analogous fund for, the purchase, redemption, defeasance, retirement or other acquisition of, any shares of any class of Capital Stock (including but not permit limited to in respect of any Restricted Subsidiarypreferred Capital Stock outstanding or dividends accumulated thereon on the Closing Date) of the Borrower or any of its Subsidiaries or any warrants or options to purchase any such Capital Stock or any of the Convertible Subordinated Debentures or 1997 Convertible Subordinated Notes, whether now or hereafter outstanding, or make any other distribution in respect thereof or purchase any thereof, either directly or indirectly, whether in cash or property or in obligations of the Borrower or any Subsidiary, except that the Borrower (a) may make open market purchases of its outstanding common stock in an aggregate amount during the term of this Agreement not to exceed (i) declare $10,000,000, while the Consolidated Leverage Ratio is less than 3.75 to 1.0 but greater than or pay equal to 2.50 to 1.0 and (ii) $25,000,000 (including any dividend amounts expended pursuant to clause (i)), while the Consolidated Leverage Ratio is less than 2.50 to 1.0, (b) may (i) make scheduled payments of interest in respect of the Convertible Subordinated Debentures and the 1997 Convertible Subordinated Notes, and (ii) if permitted by Section 7.10, redeem the Convertible Subordinated Debentures after at least 90% of the Convertible Subordinated Debentures have been converted or redeem the 1997 Convertible Subordinated Notes after at least 90% of the 1997 Convertible Subordinated Notes have been converted, (c) may make any distribution on cash payments required pursuant to Sections 11.1 and 11.3 of the Indenture in connection with conversions of the Convertible Subordinated Debentures or Section 10.3 of the 1997 Indenture in connection with respect conversions of the 1997 Convertible Subordinated Notes and, (d) if the Borrower is not yet authorized to its Capital Stock (other than (x) dividends or distributions payable solely in issue a sufficient number of shares of its Capital Stock (other than Disqualified Stock) or common stock to allow conversion into common stock of all 1997 Convertible Subordinated Notes, the Borrower may make cash payments to holders of the 1997 Convertible Subordinated Notes in options, warrants or other rights to acquire shares of such Capital Stock and (y) pro rata dividends or distributions on Common Stock of Restricted Subsidiaries held by minority stockholdersconnection with the conversion thereof, provided that such dividends do not in (i) no more than 40% of the aggregate exceed the minority stockholders' pro rata share of such Restricted Subsidiaries' net income from the first day consideration to any holder of the fiscal quarter beginning immediately following the Closing Date) held by Persons other than the Company or any of its Restricted Subsidiaries1997 Convertible Subordinated Notes upon conversion thereof may be in cash, (ii) purchase, redeem, retire or otherwise acquire for value any shares of Capital Stock of the Company, any Subsidiary Guarantor or an Unrestricted Subsidiary (including options, warrants or other rights to acquire such shares of Capital Stock) held by Persons other than the Company and its Wholly Owned Subsidiaries, (iii) make any voluntary or optional principal payment, or voluntary or optional redemption, repurchase, defeasance, or other acquisition or retirement for value, of Indebtedness of the Company that is subordinated in right of payment to the Notes or of any Subsidiary Guarantor that is subordinated to the Subsidiary Guaranties (other than, in each case, the purchase, repurchase or the acquisition of Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in any case due within one year of the date of acquisition) or (iv) make any Investment, other than a Permitted Investment, in any Person (such payments or any other actions described in clauses (i) through (iv) being collectively "RESTRICTED PAYMENTS") if, at the time of, and after giving effect toto such payment and conversion, the proposed Restricted Payment: (A) an no Default or Event of Default shall have occurred be continuing and be continuing, (Biii) except with respect to Investments in Restricted Subsidiaries and dividends on the Common Stock of any Subsidiary Guarantor paid to the Company or any Restricted Subsidiary, the Company could not Incur at least $1.00 of Indebtedness under the first sentence of paragraph (a) of Section 4.03 or (C) the aggregate amount of all Restricted Payments (the amount, if other than in cash, to be determined in good faith by the Board of Directors, whose determination shall be conclusive and evidenced by a Board Resolution) made after the Closing Date (after giving pro forma effect to the proposed Restricted Payment) shall exceed the sum of (1) 50% of the aggregate amount of the Adjusted Consolidated Net Income (or, such payment and conversion as if the Adjusted Consolidated Net Income is a loss, minus 100% of the amount of such loss) (determined by excluding income resulting from transfers of assets by the Company or a Restricted Subsidiary to an Unrestricted Subsidiary) accrued on a cumulative basis during the period (taken as one accounting period) beginning on the first day of the fiscal quarter immediately following the Closing Date and ending it had occurred on the last day of the last most recently ended fiscal quarter preceding quarter, the Transaction Date for which reports have been filed pursuant Consolidated Leverage Ratio would not exceed 2.50 to Section 4.18 plus (2) 1.00. Notwithstanding the aggregate amount foregoing, any Subsidiary of Designated Equity Proceeds received by the Company after the Closing Date, except Borrower may pay dividends and other distributions to the extent such amount of Designated Equity Proceeds is used as a basis Borrower and Servicios may pay dividends to Incur Indebtedness pursuant to clause (i) or (viii) of paragraph (a) under Section 4.03, plus (3) an amount equal to the net reduction in Investments (other than reductions in Permitted Investments) in any Person resulting from payments of interest on Indebtedness, dividends, repayments of loans or advances, or other transfers of assets, in each case to the Company or any Restricted Subsidiary or from the Net Cash Proceeds from the sale of any such Investment (except, in each case, to the extent any such payment or proceeds are included in the calculation of Adjusted Consolidated Net Income), or from redesignations of Unrestricted Subsidiaries as Restricted Subsidiaries (valued in each case as provided in the definition of "Investments"), not to exceed, in each case, the amount of Investments previously made by the Company or any Restricted Subsidiary in such Person or Unrestricted Subsidiaryits shareholders.

Limitation on Restricted Payments. (a) The Company will shall not, and will shall not permit any of its Restricted SubsidiarySubsidiaries to, directly or indirectly, to : (i) declare or pay any dividend or make any distribution on account of the Company's or with respect to any of its Capital Stock Restricted Subsidiaries' Equity Interests (other than than: (x1) dividends or distributions payable solely in shares of its Capital Stock Equity Interests (other than Disqualified Stock) or in options, warrants or other rights to acquire shares of such Capital Stock and the Company; (y2) pro rata dividends or distributions on Common Stock by a Restricted Subsidiary of Restricted Subsidiaries held by minority stockholdersthe Company, provided that such dividends do not in to the aggregate exceed the minority stockholders' pro rata share extent that a portion of such dividend or distribution is paid to a holder of Equity Interests of a Restricted Subsidiaries' net income from the first day of the fiscal quarter beginning immediately following the Closing Date) held by Persons Subsidiary other than the Company or any a Restricted Subsidiary, such portion of its such dividend or distribution is not greater than such holder's pro rata aggregate common equity interest in such Restricted Subsidiaries, Subsidiary; and (3) dividends or distributions payable on Existing Preferred OP Units and Preferred OP Units issued in compliance with Section 4.09 hereof); (ii) purchase, redeem, retire redeem or otherwise acquire or retire for value any shares Equity Interests of Capital Stock the Company or any Restricted Subsidiary or other Affiliate of the Company (other than (A) any Equity Interests owned by the Company or any Restricted Subsidiary of the Company, (B) any Subsidiary Guarantor or an Unrestricted Subsidiary Existing Preferred OP Units and (including options, warrants or other rights to acquire such shares of Capital StockC) held by Persons other than the Company and its Wholly Owned Subsidiaries, any Preferred OP Units issued in compliance with Section 4.9 hereof); (iii) make purchase, redeem or otherwise acquire or retire for value any voluntary or optional principal payment, or voluntary or optional redemption, repurchase, defeasance, or other acquisition or retirement for value, of Indebtedness of the Company or any Restricted Subsidiary that is subordinated or junior in right of payment payment, by its terms, to the Notes or of any Subsidiary Guarantor that is subordinated Guarantee thereof prior to the Subsidiary Guaranties (other than, in each case, the purchase, repurchase scheduled final maturity or the acquisition of Indebtedness in anticipation of satisfying a sinking fund obligation, payment dates for payment of principal installment and interest in accordance with the original documentation for such subordinated or final maturity, in any case due within one year of the date of acquisition) junior Indebtedness; or (iv) make any Investment, other than a Permitted Investment, in any Person Investment (all such payments or any and other actions described set forth in clauses (i) through (iv) above being collectively referred to as "RESTRICTED PAYMENTSRestricted Payments") if), unless, at the time of, and after giving effect to, the proposed of such Restricted Payment: (A) an Event of Default shall have occurred and be continuing, (B) except with respect to Investments in Restricted Subsidiaries and dividends on the Common Stock of any Subsidiary Guarantor paid to the Company or any Restricted Subsidiary, the Company could not Incur at least $1.00 of Indebtedness under the first sentence of paragraph (a) of Section 4.03 or (C) the aggregate amount of all Restricted Payments (the amount, if other than in cash, to be determined in good faith by the Board of Directors, whose determination shall be conclusive and evidenced by a Board Resolution) made after the Closing Date (after giving pro forma effect to the proposed Restricted Payment) shall exceed the sum of (1) 50% of the aggregate amount of the Adjusted Consolidated Net Income (or, if the Adjusted Consolidated Net Income is a loss, minus 100% of the amount of such loss) (determined by excluding income resulting from transfers of assets by the Company or a Restricted Subsidiary to an Unrestricted Subsidiary) accrued on a cumulative basis during the period (taken as one accounting period) beginning on the first day of the fiscal quarter immediately following the Closing Date and ending on the last day of the last fiscal quarter preceding the Transaction Date for which reports have been filed pursuant to Section 4.18 plus (2) the aggregate amount of Designated Equity Proceeds received by the Company after the Closing Date, except to the extent such amount of Designated Equity Proceeds is used as a basis to Incur Indebtedness pursuant to clause (i) or (viii) of paragraph (a) under Section 4.03, plus (3) an amount equal to the net reduction in Investments (other than reductions in Permitted Investments) in any Person resulting from payments of interest on Indebtedness, dividends, repayments of loans or advances, or other transfers of assets, in each case to the Company or any Restricted Subsidiary or from the Net Cash Proceeds from the sale of any such Investment (except, in each case, to the extent any such payment or proceeds are included in the calculation of Adjusted Consolidated Net Income), or from redesignations of Unrestricted Subsidiaries as Restricted Subsidiaries (valued in each case as provided in the definition of "Investments"), not to exceed, in each case, the amount of Investments previously made by the Company or any Restricted Subsidiary in such Person or Unrestricted Subsidiary.:

Limitation on Restricted Payments. (a) The Company will not, and will not permit any Restricted SubsidiarySubsidiary to, directly or indirectly, to (i) declare or pay any dividend or make any distribution on or with respect to its Capital Stock (other than (x) dividends or distributions payable solely in shares of its Capital Stock (other than Disqualified Redeemable Stock) or in options, warrants or other rights rights, to acquire shares of such Capital Stock and (y) pro rata dividends or distributions on Common Stock of Restricted Subsidiaries held by minority stockholders, provided that such dividends do not in the aggregate exceed the minority stockholders' pro rata share of such Restricted Subsidiaries' cumulative net income from the first day of the fiscal quarter beginning immediately following the Closing Issue Date) held by Persons other than the Company or any of its Restricted Subsidiaries), (ii) purchase, redeem, retire or otherwise acquire for value any shares of Capital Stock of (A) the CompanyCompany (including options, warrants or other rights to acquire such shares of Capital Stock) held by any Subsidiary Guarantor Person or an Unrestricted (B) a Subsidiary (including options, warrants or other rights to acquire such shares of Capital Stock) held by Persons any Affiliate of the Company (other than the Company and its a Wholly Owned SubsidiariesSubsidiary) or any holder (or any Affiliate of such holder) of 5% or more of the Capital Stock of the Company, (iii) make any voluntary or optional principal payment, or voluntary or optional redemption, repurchase, defeasance, or other acquisition or retirement for value, of Indebtedness of the Company that is subordinated in right of payment to the Notes or of any Subsidiary Guarantor that is subordinated to the Subsidiary Guaranties (other than, in each case, than the purchase, repurchase or the acquisition of Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in any case due within one year of the date of acquisition) or (iv) make any Investment, other than a Permitted Investment, in any Person (such payments or any other actions described in clauses (i) through (iv) being collectively "RESTRICTED PAYMENTSRestricted Payments") if, at the time of, and after giving effect to, the proposed Restricted Payment: (A) an a Default or Event of Default shall have occurred and be continuing, continuing or (B) except with respect to Investments in Restricted Subsidiaries and dividends on the Common Stock of any Subsidiary Guarantor paid to the Company or any Restricted Subsidiary, the Company could not Incur at least $1.00 of Indebtedness under the first sentence of paragraph (a) of Section 4.03 or (C) the aggregate amount of all Restricted Payments (the amount, if other than in cash, to be determined in good faith by the Board of Directors, whose determination shall be conclusive and evidenced by a Board Resolution) made after the Closing Issue Date (after giving pro forma effect to the proposed Restricted Payment) shall exceed the sum of (1) 50% of the aggregate amount of the Adjusted Consolidated Net Income (or, if the Adjusted Consolidated Net Income is a loss, minus 100% of the amount of such loss) (determined by excluding income resulting from transfers of assets by the Company or a Restricted Subsidiary to an Unrestricted a Subsidiary) accrued on a cumulative basis during the period (taken as one accounting period) beginning on the first day of the fiscal quarter immediately following the Closing Issue Date and ending on the last day of the last fiscal quarter preceding the Transaction Date for which reports have been filed pursuant made available to Section 4.18 the holders of the Notes plus (2) the aggregate amount of Designated Equity Net Cash Proceeds received by the Company after the Closing DateIssue Date (exclusive of any Net Cash Proceeds realized by the Company from the Recapitalization Transaction, except including up to $2,500,000 in Net Cash Proceeds realized from Ball Technology Holdings Corporation or its Affiliates in connection with the Recapitalization Transaction, but not including in the exclusion set forth in this parenthetical any Net Cash Proceeds realized from Ball Technology Holdings Corporation or its Affiliates that exceed $2,500,000) from the issuance and sale of its Capital Stock (other than Redeemable Stock) to a Person who is not a Subsidiary of the Company or from the issuance to a Person who is not a Subsidiary of the Company of any options, warrants or other rights to acquire Capital Stock of the Company (in each case, exclusive of any Redeemable Stock or any options, warrants or other rights that are redeemable at the option of the holder, or are required to be redeemed, prior to the extent such amount of Designated Equity Proceeds is used as a basis to Incur Indebtedness pursuant to clause (iMaturity Date) or (viii) of paragraph (a) under Section 4.03, plus (3) an amount equal to the net reduction after the Issue Date in Investments (other than reductions in Permitted Investments) in any Person resulting from payments of interest on Indebtedness, dividends, repayments of loans or advances, or other transfers of assets, in each case to the Company or any Restricted Subsidiary or from the Net Cash Proceeds from the sale of any such Investment (except, in each case, to the extent any such payment or proceeds are included in the calculation of Adjusted Consolidated Net Income), or from redesignations of Unrestricted Subsidiaries as Restricted Subsidiaries (valued in each case as provided in the definition of "Investments"), not to exceed, in each case, the amount of Investments previously made by the Company or any Restricted Subsidiary in such Person or Unrestricted SubsidiaryPerson.

Limitation on Restricted Payments. (a) The Company Lodgian will not, and will not permit any Restricted SubsidiarySubsidiary to, directly or indirectly, to (i1) declare or pay any dividend or make any distribution on or with respect to its Capital Stock (other than (x) dividends or distributions payable solely in shares of its Capital Stock (other than Disqualified Stock) or in options, warrants or other rights to acquire shares of such Capital Stock and (y) pro rata dividends or distributions on Common Stock of Restricted Subsidiaries held by minority stockholders, provided that such dividends do not in the aggregate exceed the minority stockholders' pro rata share of such Restricted Subsidiaries' net income from the first day of the fiscal quarter beginning immediately following the Closing DateStock) held by Persons other than the Company Lodgian or any of its Restricted SubsidiariesSubsidiaries or make any payment on the Convertible Debentures or the CRESTS (including payments pursuant to the Lodgian Capital Trust Guarantee), (ii2) purchase, call for redemption or redeem, retire or otherwise acquire for value any shares of Capital Stock of (A) Lodgian, the Company, Lodgian Capital Trust or any Subsidiary Guarantor or an Unrestricted Subsidiary (including options, warrants or other rights to acquire such shares of Capital Stock) held by Persons any Person or (B) a Restricted Subsidiary other than the Company and its or a Subsidiary Guarantor (including options, warrants or other rights to acquire such shares of Capital Stock) held by any Affiliate of Lodgian (other than a Wholly Owned SubsidiariesRestricted Subsidiary) or any holder (or any Affiliate of such holder) of 5% or more of the Capital Stock of Lodgian, (iii3) make any voluntary or optional principal payment, or voluntary or optional redemption, repurchase, defeasance, or other acquisition or retirement for value, of Indebtedness of the Company that is subordinated in right of payment to the Notes or any Indebtedness of any Lodgian or a Subsidiary Guarantor that is subordinated in right of payment to the Subsidiary Guaranties (other than, in each case, the purchase, repurchase or the acquisition of Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in any case due within one year of the date of acquisition) Note Guarantee or (iv4) make any Investment, other than a Permitted Investment, in any Person (such payments or any other actions described in clauses (i1) through (iv4) above being collectively "RESTRICTED PAYMENTSRestricted Payments") if, at the time of, and after giving effect to, the proposed Restricted Payment: (A) an Event of Default shall have occurred and be continuing, (B) except with respect to Investments in Restricted Subsidiaries and dividends on the Common Stock of any Subsidiary Guarantor paid to the Company or any Restricted Subsidiary, the Company could not Incur at least $1.00 of Indebtedness under the first sentence of paragraph (a) of Section 4.03 or (C) the aggregate amount of all Restricted Payments (the amount, if other than in cash, to be determined in good faith by the Board of Directors, whose determination shall be conclusive and evidenced by a Board Resolution) made after the Closing Date (after giving pro forma effect to the proposed Restricted Payment) shall exceed the sum of (1) 50% of the aggregate amount of the Adjusted Consolidated Net Income (or, if the Adjusted Consolidated Net Income is a loss, minus 100% of the amount of such loss) (determined by excluding income resulting from transfers of assets by the Company or a Restricted Subsidiary to an Unrestricted Subsidiary) accrued on a cumulative basis during the period (taken as one accounting period) beginning on the first day of the fiscal quarter immediately following the Closing Date and ending on the last day of the last fiscal quarter preceding the Transaction Date for which reports have been filed pursuant to Section 4.18 plus (2) the aggregate amount of Designated Equity Proceeds received by the Company after the Closing Date, except to the extent such amount of Designated Equity Proceeds is used as a basis to Incur Indebtedness pursuant to clause (i) or (viii) of paragraph (a) under Section 4.03, plus (3) an amount equal to the net reduction in Investments (other than reductions in Permitted Investments) in any Person resulting from payments of interest on Indebtedness, dividends, repayments of loans or advances, or other transfers of assets, in each case to the Company or any Restricted Subsidiary or from the Net Cash Proceeds from the sale of any such Investment (except, in each case, to the extent any such payment or proceeds are included in the calculation of Adjusted Consolidated Net Income), or from redesignations of Unrestricted Subsidiaries as Restricted Subsidiaries (valued in each case as provided in the definition of "Investments"), not to exceed, in each case, the amount of Investments previously made by the Company or any Restricted Subsidiary in such Person or Unrestricted Subsidiary.:

Limitation on Restricted Payments. (a) The Company will not, and will not permit any Restricted SubsidiarySubsidiary to, directly or indirectly, to (i) declare or pay any dividend or make any distribution on or with respect to its Capital Stock held by Persons other than the Company or any of its Restricted Subsidiaries (other than (x) dividends or distributions payable solely in shares of its Qualified Capital Stock (other than Disqualified Stock) or in options, warrants or other rights to acquire shares of such Qualified Capital Stock (so long as, in the case of any Restricted Subsidiary, the Qualified Capital Stock is issued in accordance with the other relevant requirements of this Indenture) and (y) pro rata dividends or distributions on Common Stock of Restricted Subsidiaries held by minority stockholders, provided that such dividends do not in the aggregate exceed the minority stockholders' pro rata share of such Restricted Subsidiaries' net income from the first day of the fiscal quarter beginning immediately following the Closing Date) held by Persons other than the Company or any of its Restricted Subsidiaries), (ii) purchase, redeem, retire or otherwise acquire for value any shares of Capital Stock of (x) the Company, any Subsidiary Guarantor Company or an Unrestricted Subsidiary (including options, warrants or other rights to acquire such shares of Capital Stock) held by Persons any Person (other than the Company and its or a Wholly Owned SubsidiariesRestricted Subsidiary) or (y) a Restricted Subsidiary (including options, warrants or other rights to acquire such shares of Capital Stock) held by any Affiliate of the Company (other than a Wholly Owned Restricted Subsidiary) or any holder (or any Affiliate of such holder) of 5% or more of 51 58 the Capital Stock of the Company, (iii) make any voluntary or optional principal payment, or voluntary or optional redemption, repurchase, defeasance, or other acquisition or retirement for value, of Indebtedness of the Company or any Guarantor that is subordinated in right of payment to the Notes or of any a Subsidiary Guarantor that is subordinated to the Subsidiary Guaranties (other than, in each case, the purchase, repurchase or the acquisition of Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in any case due within one year of the date of acquisition) Guarantee or (iv) make any InvestmentInvestment (including, without limitation, any Investment deemed made upon (x) the designation of a Restricted Subsidiary as an Unrestricted Subsidiary or (y) any Restricted Subsidiary ceasing to constitute a Restricted Subsidiary, in each case in accordance with the definition of Investment contained herein), other than a Permitted Investment, in any Person (such payments or any other actions described in clauses (i) through (iv) above being collectively "RESTRICTED PAYMENTSRestricted Payments") if, at the time of, and after giving effect to, the proposed Restricted Payment: (A) an Event of Default shall have occurred and be continuing, (B) except with respect to Investments in Restricted Subsidiaries and dividends on the Common Stock of any Subsidiary Guarantor paid to the Company or any Restricted Subsidiary, the Company could not Incur at least $1.00 of Indebtedness under the first sentence of paragraph (a) of Section 4.03 or (C) the aggregate amount of all Restricted Payments (the amount, if other than in cash, to be determined in good faith by the Board of Directors, whose determination shall be conclusive and evidenced by a Board Resolution) made after the Closing Date (after giving pro forma effect to the proposed Restricted Payment) shall exceed the sum of (1) 50% of the aggregate amount of the Adjusted Consolidated Net Income (or, if the Adjusted Consolidated Net Income is a loss, minus 100% of the amount of such loss) (determined by excluding income resulting from transfers of assets by the Company or a Restricted Subsidiary to an Unrestricted Subsidiary) accrued on a cumulative basis during the period (taken as one accounting period) beginning on the first day of the fiscal quarter immediately following the Closing Date and ending on the last day of the last fiscal quarter preceding the Transaction Date for which reports have been filed pursuant to Section 4.18 plus (2) the aggregate amount of Designated Equity Proceeds received by the Company after the Closing Date, except to the extent such amount of Designated Equity Proceeds is used as a basis to Incur Indebtedness pursuant to clause (i) or (viii) of paragraph (a) under Section 4.03, plus (3) an amount equal to the net reduction in Investments (other than reductions in Permitted Investments) in any Person resulting from payments of interest on Indebtedness, dividends, repayments of loans or advances, or other transfers of assets, in each case to the Company or any Restricted Subsidiary or from the Net Cash Proceeds from the sale of any such Investment (except, in each case, to the extent any such payment or proceeds are included in the calculation of Adjusted Consolidated Net Income), or from redesignations of Unrestricted Subsidiaries as Restricted Subsidiaries (valued in each case as provided in the definition of "Investments"), not to exceed, in each case, the amount of Investments previously made by the Company or any Restricted Subsidiary in such Person or Unrestricted Subsidiary.:

Limitation on Restricted Payments. (a) The Company will (i) shall not, and will not permit any Restricted Subsidiary, directly or indirectly, to (i) declare or pay any dividend or make any distribution on or with in respect to of any class of its Capital Stock or to the holders thereof (other than including pursuant to a merger or consolidation of the Company, but excluding (xa) any dividends or distributions payable solely in shares of its Capital Stock (other than Disqualified Stock) or in options, warrants or other rights to acquire shares of such its Capital Stock (other than Disqualified Stock) and (yb) pro rata dividends or distributions on Common Stock of Restricted Subsidiaries held by minority stockholders, provided that such dividends do not in accordance with the aggregate exceed the minority stockholders' pro rata share of such Restricted Subsidiaries' net income from the first day terms of the fiscal quarter beginning immediately following Convertible Preferred Stock or 12 3/4% Cumulative Exchangeable Preferred Stock, as such terms exist on the Closing Date) held by Persons other than the Company or any date of its Restricted Subsidiariesthis Indenture), (ii) shall not, and shall not permit any Subsidiary of the Company, directly or indirectly, to purchase, redeem, retire redeem or otherwise acquire or retire for value (a) any Capital Stock of the Company or (b) any options, warrants or rights to purchase or acquire shares of Capital Stock of the Company (in the case of either (a) or (b) other than in exchange for the Company, any Subsidiary Guarantor 's Capital Stock (other than Disqualified Stock) or an Unrestricted Subsidiary (including options, warrants or other rights to acquire such shares purchase the Company's Capital Stock (other than Disqualified Stock)), (iii) shall not make, or permit any Subsidiary of Capital Stock) held by Persons the Company to make, any loan, advance, capital contribution to or Investment in, or payment on a Guarantee of any obligation of, any Affiliate, other than the Company and its or a Wholly Owned SubsidiariesSubsidiary, (iiiiv) make shall not, and shall not permit any voluntary or optional principal paymentSubsidiary of the Company to, or voluntary or optional redemptionredeem, defease, repurchase, defeasanceretire or otherwise acquire or retire for value prior to any scheduled maturity, repayment or other acquisition or retirement for valuesinking fund payment, of Indebtedness Debt of the Company that which is subordinated in right of payment to the Notes Securities (other than in exchange for the Company's Capital Stock (other than Disqualified Stock) or of options, warrants or other rights to purchase the Company's Capital Stock (other than Disquali- fied Stock)), and (v) may not make any Investment in any Subsidiary Guarantor that is subordinated subject to the Subsidiary Guaranties (other than, in each case, the purchase, repurchase an encumbrance or the acquisition of Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment restriction prohibited under Section 1011 or final maturity, any Investments in any case due within one year of Unrestricted Subsidiary (the date of acquisition) or (iv) make any Investment, other than a Permitted Investment, in any Person (such payments or any other actions transactions described in clauses Clauses (i) through (ivv) being collectively referred to herein as "RESTRICTED PAYMENTSRestricted Payments") if), if at the time of, and after giving effect to, the proposed Restricted Payment: (A) an Event of Default shall have occurred and be continuing, (B) except with respect to Investments in Restricted Subsidiaries and dividends on the Common Stock of any Subsidiary Guarantor paid to the Company or any Restricted Subsidiary, the Company could not Incur at least $1.00 of Indebtedness under the first sentence of paragraph (a) of Section 4.03 or (C) the aggregate amount of all Restricted Payments (the amount, if other than in cash, to be determined in good faith by the Board of Directors, whose determination shall be conclusive and evidenced by a Board Resolution) made after the Closing Date (after giving pro forma effect to the proposed Restricted Payment) shall exceed the sum of (1) 50% of the aggregate amount of the Adjusted Consolidated Net Income (or, if the Adjusted Consolidated Net Income is a loss, minus 100% of the amount of such loss) (determined by excluding income resulting from transfers of assets by the Company or a Restricted Subsidiary to an Unrestricted Subsidiary) accrued on a cumulative basis during the period (taken as one accounting period) beginning on the first day of the fiscal quarter immediately following the Closing Date and ending on the last day of the last fiscal quarter preceding the Transaction Date for which reports have been filed pursuant to Section 4.18 plus (2) the aggregate amount of Designated Equity Proceeds received by the Company after the Closing Date, except to the extent such amount of Designated Equity Proceeds is used as a basis to Incur Indebtedness pursuant to clause (i) or (viii) of paragraph (a) under Section 4.03, plus (3) an amount equal to the net reduction in Investments (other than reductions in Permitted Investments) in any Person resulting from payments of interest on Indebtedness, dividends, repayments of loans or advances, or other transfers of assets, in each case to the Company or any Restricted Subsidiary or from the Net Cash Proceeds from the sale of any such Investment (except, in each case, to the extent any such payment or proceeds are included in the calculation of Adjusted Consolidated Net Income), or from redesignations of Unrestricted Subsidiaries as Restricted Subsidiaries (valued in each case as provided in the definition of "Investments"), not to exceed, in each case, the amount of Investments previously made by the Company or any Restricted Subsidiary in such Person or Unrestricted Subsidiary.thereof:

Limitation on Restricted Payments. (a) The Company will not, --------------------------------- and will not permit any Restricted SubsidiarySubsidiary to, directly or indirectly, to (i) declare or pay any dividend or make any distribution on or with respect to its Capital Stock (other than (x) dividends or distributions payable solely in shares of its Capital Stock (other than Disqualified Stock) or in options, warrants or other rights to acquire shares of such Capital Stock and (y) pro rata dividends or distributions on Common Stock of Restricted Subsidiaries held by minority stockholders, provided that such dividends do not in the aggregate exceed the minority stockholders' pro rata share of such Restricted Subsidiaries' net income from the first day of the fiscal quarter beginning immediately following the Closing Date) held by Persons other than the Company or any of its Restricted Subsidiaries, (ii) purchase, redeem, retire or otherwise acquire for value any shares of Capital Stock of (A) the Company, any Subsidiary Guarantor Company or an Unrestricted Subsidiary (including options, warrants or other rights to acquire such shares of Capital Stock) held by Persons any Person or (B) a Restricted Subsidiary (including options, warrants or other rights to acquire such shares of Capital Stock) held by any Affiliate of the Company (other than the Company and its a Wholly Owned SubsidiariesRestricted Subsidiary) or any Holder (or any Affiliate of such Holder) of 5% or more of the Capital Stock of the Company, (iii) make any voluntary or optional principal payment, or voluntary or optional redemption, repurchase, defeasance, or other acquisition or retirement for value, of Indebtedness of the Company that is subordinated in right of payment to the Notes or of any Subsidiary Guarantor that is subordinated to the Subsidiary Guaranties (other than, in each case, the purchase, repurchase or the acquisition of Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in any case due within one year of the date of acquisition) or (iv) make any Investment, other than a Permitted Investment, in any Person (such payments or any other actions described in clauses (i) through (iv) above being collectively "RESTRICTED PAYMENTSRestricted ---------- Payments") if, at the time of, and after giving effect to, the proposed -------- Restricted Payment: (A) an a Default or Event of Default shall have occurred and be continuing, (B) except with respect to Investments in Restricted Subsidiaries and dividends on the Common Stock of any Subsidiary Guarantor paid to the Company or any Restricted Subsidiary, the Company could not Incur at least $1.00 of Indebtedness under the first sentence of paragraph (a) of Section 4.03 or (C) the aggregate amount of all Restricted Payments (the amount, if other than in cash, to be determined in good faith by the Board of Directors, whose determination shall be conclusive and evidenced by a Board Resolution) made after the Closing Date (after giving pro forma effect to the proposed Restricted Payment) shall exceed the sum of (1) 50% of the aggregate amount of the Adjusted Consolidated Net Income EBITDA (or, if the Adjusted Consolidated Net Income EBITDA is a lossnegative, minus 100% of the amount of such lossby which Consolidated EBITDA is less than zero) (determined by excluding income resulting from transfers of assets by the Company or a Restricted Subsidiary to an Unrestricted Subsidiary) less 1.5 times Consolidated Interest Expense, in each case accrued on a cumulative basis during the period (taken as one accounting period) beginning on the first day of the fiscal quarter immediately following the Closing Date and ending on the last day of the last fiscal quarter preceding the Transaction Date for which reports have been filed with the Commission or provided to the Trustee pursuant to Section 4.18 4.16 plus (2) the aggregate amount of Designated Equity Net Cash Proceeds received by the Company after the Closing DateDate from the issuance and sale permitted by this Indenture of its Capital Stock (other than Disqualified Stock) to a Person who is not a Restricted Subsidiary of the Company, including an issuance or sale permitted by this Indenture of Indebtedness of the Company for cash subsequent to the Closing Date upon the conversion of such Indebtedness into Capital Stock (other than Disqualified Stock) of the Company, or from the issuance to a Person who is not a Restricted Subsidiary of the Company of any options, warrants or other rights to acquire Capital Stock of the Company (in each case, exclusive of any Disqualified Stock or any options, warrants or other rights that are redeemable at the option of the Holder, or are required to be redeemed, prior to the Stated Maturity of the Notes), in each case except to the extent such amount of Designated Equity Net Cash Proceeds is are used as a basis to Incur Indebtedness pursuant to clause (i) or (viii) of the second paragraph (aof Section 4.03(a) under Section 4.03, plus (3) an amount equal to the net reduction in Investments (other than reductions in Permitted Investments) in any Person resulting from payments of interest on Indebtedness, dividends, distributions, repayments of loans or advances, or other transfers of assets, in each case to the Company or any Restricted Subsidiary or from the Net Cash Proceeds from the sale of any such Investment (except, in each case, to the extent any such payment or proceeds are included in the calculation of Adjusted Consolidated Net Income), or from redesignations of Unrestricted Subsidiaries as Restricted Subsidiaries (valued in each case as provided in the definition of "Investments"), not to exceed, in each case, the amount of Investments previously made by the Company or any Restricted Subsidiary in such Person or Unrestricted Subsidiary. The foregoing provision shall not be violated by reason of: (i) the payment of any dividend within 60 days after the date of declaration thereof if, at said date of declaration, such payment would comply with the foregoing paragraph; (ii) the redemption, repurchase, defeasance or other acquisition or retirement for value of Indebtedness that is subordinated in right of payment to the Notes, including premium, if any, and accrued and unpaid interest, with the proceeds of, or in exchange for, Indebtedness Incurred under clause (iii) of the second paragraph of part (a) of Section 4.03; (iii) the repurchase, redemption or other acquisition of Capital Stock of the Company or an Unrestricted Subsidiary (or options, warrants or other rights to acquire such Capital Stock) in exchange for, or out of the proceeds of, a substantially concurrent offering of, shares of Capital Stock (other than Disqualified Stock) of the Company (or options, warrants or other rights to acquire such Capital Stock); (iv) the making of any principal payment or the repurchase, redemption, retirement, defeasance or other acquisition for value of Indebtedness of the Company which is subordinated in right of payment to the Notes in exchange for, or out of the proceeds of a substantially concurrent offering of shares of the Capital Stock (other than Disqualified Stock) of the Company (or options, warrants or other rights to acquire such Capital Stock); (v) payments or distributions to dissenting stockholders pursuant to applicable law, pursuant to or in connection with a consolidation, merger or transfer of assets that complies with the provisions of Section 5.01; (vi) Investments in any Person the primary business of which is related, ancillary or complementary to the business of the Company and its Restricted Subsidiaries on the date of such Investments; provided that the aggregate amount of Investments made pursuant to this clause (vi) does not exceed the sum of (x) $30.0 million plus (y) the amount of Net Cash Proceeds received by the Company after the Closing Date from the sale of its Capital Stock (other than Disqualified Stock) to a Person who is not a Restricted Subsidiary of the Company, except to the extent such Net Cash Proceeds are used to Incur Indebtedness pursuant to clause (viii) of the second paragraph of Section 4.03 or to make Restricted Payments pursuant to clause (C)(2) of the first paragraph, or clause (iii) or (iv) of this paragraph, of this Section 4.04, plus (z) the net reduction in Investments made pursuant to this clause (vi) resulting from distributions on or repayments of such Investments or from the Net Cash Proceeds from the sale of any such Investment (except in each case to the extent any such payment or proceeds is included in the calculation of Consolidated EBITDA) or from such Person becoming a Restricted Subsidiary (valued in each case as provided in the definition of "Investments"); provided that the net reduction in any Investment shall not exceed the amount of such Investment; (vii) Investments acquired in exchange for Capital Stock (other than Disqualified Stock) of the Company; (viii) the declaration or payment of dividends on the Common Stock of the Company following a Public Equity Offering of such Common Stock of up to 6.0% per annum of the Net Cash Proceeds received by the Company in such Public Equity Offering; (ix) repurchases of Warrants pursuant to a Repurchase Offer; (x) any purchase of any fractional share of Common Stock of the Company in connection with an exercise of the Warrants; or (xi) repurchases of Capital Stock of the Company from employees, former employees, directors, former directors, consultants or former consultants of the Company (or their estates or beneficiaries under their estates) upon their death, disability, retirement, or termination of employment; provided that the aggregate amount of such repurchases shall not exceed $1.0 million in any calendar year or $5.0 million in the aggregate; provided further that, except in the case of clauses (i) and (iii), no Default or Event of Default shall have occurred and be continuing or occur as a consequence of the actions or payments set forth therein. Each Restricted Payment permitted pursuant to the preceding paragraph (other than the Restricted Payment referred to in clause (ii) thereof, an exchange of Capital Stock for Capital Stock or Indebtedness referred to in clause (iii) or (iv) thereof and an Investment referred to in clause (vi) thereof), and the Net Cash Proceeds from any issuance of Capital Stock referred to in clauses (iii) and (iv) thereof, shall be included in calculating whether the conditions of clause (C) of the first paragraph of this Section 4.04 have been met with respect to any subsequent Restricted Payments. In the event the proceeds of an issuance of Capital Stock of the Company are used for the redemption, repurchase or other acquisition of the Notes, or Indebtedness that is pari passu with the Notes, then the Net Cash Proceeds of such issuance shall be included in clause (C) of the first paragraph of this Section 4.04 only to the extent such proceeds are not used for such redemption, repurchase or other acquisition of Indebtedness.

Limitation on Restricted Payments. (a) 8.1.3. The Company will not, and will not permit any Restricted Subsidiary, directly or indirectly, to (i) declare or pay any dividend or make any distribution on or with in respect to of its Capital Stock Stock, as applicable, (other than including any payment in connection with any merger or consolidation involving the Company or its Restricted Subsidiaries) except: (x) dividends or distributions payable solely in shares of its Capital Stock of the Company, as applicable, (other than Disqualified Stock) or in options, warrants or other rights to acquire shares of purchase such Capital Stock of the Company and (y) pro rata dividends or distributions on Common Stock of Restricted Subsidiaries held by minority stockholders, provided that such dividends do not in the aggregate exceed the minority stockholders' pro rata share of such Restricted Subsidiaries' net income from the first day of the fiscal quarter beginning immediately following the Closing Date) held by Persons other than payable to the Company or any a Restricted Subsidiary of the Company (and, if such Restricted Subsidiary is not directly or indirectly owned 100% by the Company, to its Restricted Subsidiariesother common stockholders on a pro rata basis), (ii) purchase, redeem, retire or otherwise acquire for value any shares of the Capital Stock of the Company, any Subsidiary Guarantor or an Unrestricted Subsidiary (including options, warrants or other rights to acquire such shares of Capital Stock) Company held by Persons other than the Company and its Wholly Owned Subsidiariesor a Restricted Subsidiary of the Company, (iii) make any voluntary or optional principal payment, or voluntary or optional redemptionpurchase, repurchase, defeasanceredeem, prepay interest, defease or otherwise acquire or retire for value, prior to scheduled maturity, scheduled repayment or scheduled sinking fund payment, any Junior Lien Collateral Indebtedness, Senior Unsecured Pari Passu Indebtedness, Subordinated Indebtedness or Guarantor Subordinated Indebtedness of the Company or a Subsidiary Guarantor (other than (a) Indebtedness of the Company owing to and held by any Subsidiary Guarantor or Indebtedness of a Subsidiary Guarantor owing to and held by the Company or any other Subsidiary Guarantor permitted under clause (b)(ii) of Section 3.3, (b) the redemption, purchase, repurchase or other acquisition or retirement for valuevalue of Junior Lien Collateral Indebtedness, of Senior Unsecured Pari Passu Indebtedness, Subordinated Indebtedness of the Company that is subordinated in right of payment to the Notes or of any Subsidiary Guarantor that is subordinated to the Subsidiary Guaranties (other than, in each case, the purchase, repurchase or the acquisition of Subordinated Indebtedness purchased in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in any each case due within one year of the date of purchase, repurchase or acquisition, (c) repayments from time to time of advances outstanding under revolving credit facilities, (d) repayments of Indebtedness of Foreign Subsidiaries that is Guaranteed by the Company or (e) repayments following the occurrence of a default or event of default under an indenture or other agreement relating to Indebtedness) or (iv) make any Investment, other than a Permitted Investment, Restricted Investment in any Person (any such payments dividend, distribution, purchase, redemption, repurchase, defeasance, other acquisition, retirement or any other actions described Investment referred to in clauses (i) through (iv) being collectively "RESTRICTED PAYMENTS"herein referred to as a “Restricted Payment”) if, if at the time of, and after giving effect to, the proposed Company or such Restricted Subsidiary makes such Restricted Payment: (A1) an Event of a Default shall have occurred and be continuing, continuing (Bor would result from the Restricted Payment); (2) except with respect to Investments in Restricted Subsidiaries and dividends on the Common Stock of any Subsidiary Guarantor paid to the Company or any Restricted Subsidiary, the Company could not Incur at least an additional $1.00 of Indebtedness under the first sentence of paragraph (a) of Section 4.03 3.3; or (C3) the aggregate amount of such Restricted Payment and all other Restricted Payments (the amountamount so expended, if other than in cash, to be determined in good faith by the Board of Directors, whose determination shall be conclusive and evidenced by a resolution of the Board Resolutionof Directors) declared or made after the Closing Date (after giving pro forma effect subsequent to the proposed Restricted Payment) shall August 4, 2004 would exceed the sum of of: (1A) $300.0 million; (B) 50% of the aggregate amount of the Adjusted Consolidated Net Income accrued during the period (treated as one accounting period) commencing on August 4, 2004 to the end of the most recent fiscal quarter ending prior to the date of such Restricted Payment as to which financial results are available (but in no event ending more than 135 days prior to the date of such Restricted Payment) (or, if the Adjusted in case such Consolidated Net Income is shall be a lossdeficit, minus 100% of the amount of such lossdeficit); (C) (determined by excluding income resulting from transfers of assets by the Company or a Restricted Subsidiary to an Unrestricted Subsidiary) accrued on a cumulative basis during the period (taken as one accounting period) beginning on the first day 100% of the fiscal quarter immediately following the Closing Date and ending on the last day of the last fiscal quarter preceding the Transaction Date for which reports have been filed pursuant to Section 4.18 plus (2) the aggregate amount of Designated Equity Net Cash Proceeds received by the Company after from the Closing Dateissuance or sale of its Capital Stock (other than Disqualified Stock) or other cash capital contributions subsequent to August 4, except 2004 (other than (a) an issuance or sale to a Subsidiary of the Company and other than an issuance or sale to an employee stock ownership plan or other trust established by the Company or any of its Subsidiaries for the benefit of their employees to the extent the purchase by such amount plan or trust is financed by Indebtedness of Designated Equity such plan or trust and for which the Company or any Restricted Subsidiary is the lender or is liable as guarantor or otherwise and (b) Net Cash Proceeds is used as a basis received by the Company from the issuance and sale of its Capital Stock (other than Disqualified Stock) or other cash capital contributions to Incur the extent applied to redeem Indebtedness (including the Securities) pursuant to clause equity clawback provisions); (D) the fair market value (as determined in good faith by the Board of Directors of the Company) of shares of the Company’s Qualified Stock issued to acquire Additional Assets from a third party; (E) the sum of (i) the amount by which Indebtedness of the Company or its Restricted Subsidiaries is reduced on the Company’s balance sheet upon the conversion or exchange (viii) of paragraph other than (a) under Section 4.03by a Subsidiary of the Company or (b) any conversion of the Convertible Notes) subsequent to August 4, plus 2004, of any Indebtedness of the Company or its Restricted Subsidiaries convertible or exchangeable for Capital Stock of the Company (3other than Disqualified Stock) an (less the amount of any cash or other property (other than Capital Stock) distributed by the Company upon such conversion or exchange) and (ii) the aggregate Net Cash Proceeds received by the Company (less any contingent amounts that the Company may be required to refund or return) upon the conversion or exchange (other than (a) by a Subsidiary of the Company or (b) any conversion of the Convertible Notes) subsequent to August 4, 2004 of any Indebtedness of the Company or its Restricted Subsidiaries convertible or exchangeable for Capital Stock (other than Disqualified Stock); (F) the amount equal to the net reduction in Investments (other than reductions since August 4, 2004 in Permitted Investments) in any Person Unrestricted Subsidiaries resulting from payments of interest on Indebtedness, dividends, (i) repayments of loans or advances, advances or other transfers of assets, in each case assets to the Company or any Restricted Subsidiary from Unrestricted Subsidiaries or from (ii) the Net Cash Proceeds from the sale of any such Investment (except, in each case, to the extent any such payment or proceeds are included in the calculation of Adjusted Consolidated Net Income), or from redesignations redesignation of Unrestricted Subsidiaries as Restricted Subsidiaries (valued in each case as provided in the definition of "Investments"), “Investment”) not to exceed, in each casethe case of any Unrestricted Subsidiary, the amount of Investments previously made by the Company or any Restricted Subsidiary in such Person or Unrestricted Subsidiary, which amount was treated as a Restricted Payment (and, with respect to clauses (i) and (ii), without duplication of any amounts included in Consolidated Net Income); and (G) to the extent that any Restricted Investment that was made after August 4, 2004 is sold for cash or otherwise liquidated or repaid for cash, the lesser of (A) the net proceeds of such sale, liquidation or repayment and (B) the net book value of such Restricted Investment.

Limitation on Restricted Payments. (a) The Company will not, and will not permit any Restricted SubsidiarySubsidiary to, directly or indirectly, to (i) declare or pay any dividend or make any distribution on or with respect to its Capital Stock (other than (x) dividends or distributions payable solely in shares of its Capital Stock (other than Disqualified Redeemable Stock) or in options, warrants or other rights to acquire shares of such Capital Stock and (y) pro rata dividends or distributions on Common Stock of Restricted Subsidiaries held by minority stockholders, provided that such dividends do not in the aggregate exceed the minority stockholders' pro rata share of such Restricted Subsidiaries' net income from the first day of the fiscal quarter beginning immediately following the Closing Date) held by Persons other than the Company or any of its Restricted Subsidiaries, (ii) purchase, redeem, retire or otherwise acquire for value any shares of Capital Stock of (A) the Company, any Subsidiary Guarantor Company or an Unrestricted Subsidiary (including options, warrants or other rights to acquire such shares of Capital Stock) held by Persons any Person or (B) a Restricted Subsidiary (including options, warrants or other rights to acquire such shares of Capital Stock) any Affiliate of the Company (other than the Company and its a Wholly Owned SubsidiariesRestricted Subsidiary) or any holder (or any Affiliate of such holder) of 5% or more of the Capital Stock of the Company, (iii) make any voluntary or optional principal payment, or voluntary or optional redemption, repurchase, defeasance, or other acquisition or retirement for value, of Indebtedness of the Company that is subordinated in right of payment to the Notes or of any Subsidiary Guarantor that is subordinated to the Subsidiary Guaranties (other than, in each case, the purchase, repurchase or the acquisition of Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in any case due within one year of the date of acquisition) or (iv) make any Investment, other than a Permitted Investment, in any Person (such payments or any other actions described in clauses (i) through (iv) being collectively "RESTRICTED PAYMENTSRestricted Payments") if, at the time of, and after giving effect to, the proposed Restricted Payment: ; (A) an a Default or Event of Default shall have occurred and be continuing, (B) except with respect to Investments in Restricted Subsidiaries and dividends on the Common Stock of any Subsidiary Guarantor paid to the Company or any Restricted Subsidiary, the Company could not Incur at least $1.00 of Indebtedness under the first sentence of paragraph (a) of Section 4.03 4.8(a) or (C) the aggregate amount of all Restricted Payments (the amount, if other than in cash, to be determined in good faith by the Board of Directors, whose determination shall be conclusive and evidenced by a Board Resolution) made after the Closing Date (after giving pro forma effect to the proposed Restricted Payment) shall exceed the sum of (1) 50% of the aggregate amount of the Adjusted Consolidated Net Income (or, if the Adjusted Consolidated Net Income is a loss, minus 100% of the amount of such loss) (determined by excluding income resulting from transfers of assets by the Company or a Restricted Subsidiary to an Unrestricted Subsidiary) accrued on a cumulative basis during the period (taken as one accounting period) beginning on the first day of the fiscal quarter immediately following the Closing Date and ending on the last day of the last fiscal quarter preceding the Transaction Date for which reports have been filed pursuant to Section 4.18 plus 4.7 PLUS (2) the aggregate amount of Designated Equity Net Cash Proceeds received by the Company after the Closing DateDate from the issuance and sale permitted by the Indentures to a Person who is not a Subsidiary of the Company of (a) its Capital Stock (other than Redeemable Stock), (b) any options, warrants or other rights to acquire Capital Stock of the Company (in each case, exclusive of any Redeemable Stock or any options, warrants or other rights that are redeemable at the option of the holder, or are required to be redeemed, prior to the Stated Maturity of the Notes) and (c) Indebtedness of the Company that has been exchanged for or converted into Capital Stock of the Company (other than Redeemable Stock), in each case except to the extent such amount of Designated Equity Net Cash Proceeds is are used as a basis to Incur Indebtedness pursuant to clause (i) or (viiivii) of the second paragraph (a) under of Section 4.034.8(a), plus PLUS (3) an amount equal to the net reduction in Investments (other than reductions in Permitted InvestmentsInvestments and reductions in Investments made pursuant to clause (vi) of the second paragraph of this Section 4.9) in any Person resulting from payments of interest on Indebtedness, dividends, repayments of loans or advances, or other transfers of assets, in each case to the Company or any Restricted Subsidiary or from the Net Cash Proceeds from the sale of any such Investment investment (except, in each case, to the extent any such payment or proceeds are is included in the calculation of Adjusted Consolidated Net Income), or from redesignations of Unrestricted Subsidiaries as Restricted Subsidiaries (valued in each case as provided in the definition of "Investments"), not to exceed, in each case, the amount of Investments previously made by the Company or any Restricted Subsidiary in such Person or Unrestricted Subsidiary.. The foregoing provision shall not be violated by reason of: (i) the payment of any dividend within 60 days after the date of declaration thereof if, at said date of declaration, such payment would comply with the foregoing paragraph; (ii) the redemption, repurchase, defeasance or other acquisition or retirement for value of Indebtedness that is subordinated in right of payment to the Notes including premium, if any, and accrued and unpaid interest, with the proceeds of, or in exchange for, Indebtedness Incurred under clause (iii) of the second paragraph of Section 4.8(a); (iii) the repurchase, redemption or other acquisition of Capital Stock of the Company (or options, warrants or other rights to acquire such Capital Stock) in exchange for, or out of the proceeds of a substantially concurrent offering of, shares of Capital Stock (other than Redeemable Stock) of the Company (or options, warrants or other rights to acquire such Capital Stock); (iv) the making of any principal payment or the repurchase, redemption, retirement, defeasance, or other acquisition for value of Indebtedness of the Company which is subordinated in right of payment to the Notes in exchange for, or out of the proceeds of, a substantially concurrent offering of, shares of Capital Stock of the Company (other than Redeemable Stock); (v) payments or distributions to dissenting stockholders pursuant to applicable law in connection with a consolidation, merger or transfer of assets that complies with the provisions of this Indenture applicable to mergers, consolidations and transfers of all or substantially all of the property and assets of the Company; (vi) Investments in any Person the primary business of which is related, ancillary or complementary to the business of the Company and its Restricted Subsidiaries on the date of such Investments; PROVIDED that the aggregate amount of Investments made pursuant to this clause (vi) does not exceed the sum of (x) $50 million plus (y) the net reduction in Investments made pursuant to this clause (vi) resulting from distributions on or repayments of such Investments or from the Net Cash Proceeds from the sale of any such Investment (except in each case to the extent any such payment or proceeds is included in the calculation of Adjusted Consolidated Net Income) or from such Person becoming a Restricted Subsidiary (valued in each case as provided in the definition of "Investments"); PROVIDED that the net reduction in any Investment shall not exceed the amount of such Investment. Each Restricted Payment permitted pursuant to the preceding paragraph (other than the Restricted Payment referred to in clause (ii) thereof and an exchange of Capital Stock for Capital Stock or Indebtedness referred to in clause (iii) or (iv) thereof and the Net Cash Proceeds from any issuance of Capital Stock referred to in clauses (iii), (iv) and (vi), shall be included in calculating whether the conditions of clause (C) of the first paragraph to this Section 4.9 have been met with respect to any subsequent Restricted Payments. In the event the proceeds of an issuance of Capital Stock of the Company are used for the redemption, repurchase or other acquisition of the Notes, or Indebtedness that is pari passu with the Notes, then the Net Cash Proceeds of such issuance shall be included in clause (C) of the first paragraph of this Section 4.9 only to the extent such proceeds are not used for such redemption, repurchase or other acquisition of Indebtedne/section/

Limitation on Restricted Payments. (a) The Company will not, and will not permit any Restricted SubsidiarySubsidiary to, directly or indirectly, to (i) declare or pay any dividend or make any distribution on or with respect to its Capital Stock (other than (x) dividends or distributions payable solely in shares of its Capital Stock (other than Disqualified Redeemable Stock) or in options, warrants or other rights to acquire shares of such Capital Stock and (y) pro rata dividends or distributions on Common Stock of Restricted Subsidiaries held by minority stockholders, provided that such dividends do not in the aggregate exceed the minority stockholders' pro rata share of such Restricted Subsidiaries' net income from the first day of the fiscal quarter beginning immediately following the Closing Date) held by Persons other than the Company or any of its Restricted Subsidiaries, (ii) purchase, redeem, retire or otherwise acquire for value any shares of Capital Stock of (A) the Company, any Subsidiary Guarantor Company or an Unrestricted Subsidiary (including options, warrants or other rights to acquire such shares of Capital Stock) held by Persons any Person or (B) a Restricted Subsidiary (including options, warrants or other rights to acquire such shares of Capital Stock) held by any Affiliate of the Company (other than the Company and its a Wholly Owned SubsidiariesRestricted Subsidiary) or any holder (or any Affiliate of such holder) of 10% or more of the Capital Stock of the Company, (iii) make any voluntary or optional principal payment, or voluntary or optional redemption, repurchase, defeasance, or other acquisition or retirement for value, of Indebtedness of the Company that is subordinated in right of payment to the Notes or of any Subsidiary Guarantor that is subordinated to the Subsidiary Guaranties (other than, in each case, than the purchase, repurchase or the acquisition of Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in any case due within one year of the date of acquisition) or (iv) make any Investment, other than a Permitted Investment, in any Person (such payments or any other actions described in clauses (i) through (iv) being collectively "RESTRICTED PAYMENTS"“Restricted Payments”) if, at the time of, and after giving effect to, the proposed Restricted Payment: (A) an a Default or Event of Default shall have occurred and be continuing, (B) except with respect to Investments in Restricted Subsidiaries and dividends on the Common Stock of any Subsidiary Guarantor paid to the Company or any Restricted Subsidiary, the Company could not Incur at least $1.00 of Indebtedness under the first sentence of paragraph (a) of Section 4.03 or (C) the aggregate amount of all Restricted Payments (the amount, if other than in cash, to be determined in good faith by the Board of Directors, whose determination shall be conclusive and evidenced by a Board Resolution) made after the Closing Date (after giving pro forma effect to the proposed Restricted Payment) shall exceed the sum of (1) 50% the remainder of (x) the aggregate amount of the Adjusted Consolidated Net Income EBITDA (or, if the Adjusted Consolidated Net Income EBITDA is a loss, minus 100% of the amount of such loss) (determined by excluding income resulting from transfers of assets by the Company or a Restricted Subsidiary to an Unrestricted Subsidiary) accrued on a cumulative basis during the period (taken as one accounting period) beginning on the first day of the fiscal quarter immediately following during which the Closing Date occurs and ending on the last day of the last fiscal quarter preceding the Transaction Date for which reports have been filed pursuant to Section 4.18 plus minus (y) the product of two multiplied by the aggregate amount of Consolidated Fixed Charges for the period referred to in clause (x) PLUS (2) the aggregate amount of Designated Equity Net Cash Proceeds received by the Company after the Closing DateDate from the issuance and sale permitted by this Indenture of its Capital Stock (other than Redeemable Stock) to a Person who is not a Subsidiary of the Company, except or from the issuance to a Person who is not a Subsidiary of the Company of any options, warrants or other rights to acquire Capital Stock of the Company (in each case, exclusive of any Redeemable Stock or any options, warrants or other rights that are redeemable at the option of the holder, or are required to be redeemed, prior to the extent such amount Stated Maturity of Designated Equity Proceeds is used as a basis to Incur Indebtedness pursuant to clause (ithe Notes) or (viii) of paragraph (a) under Section 4.03, plus PLUS (3) an amount equal to the net reduction in Investments (other than reductions in Permitted Investments) in any Person resulting from payments of interest on Indebtedness, dividends, repayments of loans or advances, or other transfers of assets, in each case to the Company or any Restricted Subsidiary or from the Net Cash Proceeds from the sale of any such Investment (except, in each case, to the extent any such payment or proceeds are included in the calculation of Adjusted Consolidated Net Income), or from redesignations of Unrestricted Subsidiaries as Restricted Subsidiaries (valued in each case as provided in the definition of "“Investments"”), not to exceed, in each case, the amount of Investments previously made by the Company or any Restricted Subsidiary in such Person or Unrestricted Subsidiary. The foregoing provision shall not be violated by reason of: (i) the payment of any dividend within 60 days after the date of declaration thereof if, at said date of declaration, such payment would comply with the foregoing paragraph; (ii) the redemption, repurchase, defeasance or other acquisition or retirement for value of Indebtedness that is subordinated in right of payment to the Notes including premium, if any, and accrued and unpaid interest, with the proceeds of, or in exchange for, Indebtedness Incurred under clause (iii) of the second paragraph of Section 4.03(a); (iii)(A) the repurchase, redemption or other acquisition of Capital Stock of the Company (or options, warrants or other rights to acquire such Capital Stock) in exchange for, or out of the proceeds of a substantially concurrent offering of, shares of Capital Stock (other than Redeemable Stock) of the Company or (B) the repurchase, redemption or other acquisition of Capital Stock of a Restricted Subsidiary (or options, warrants or other rights to acquire such Capital Stock) in exchange for, or out of the proceeds of a substantially concurrent offering of, shares of Capital Stock (other than Redeemable Stock) of such Restricted Subsidiary; (iv) the making of any principal payment or the repurchase, redemption, retirement, defeasance or other acquisition for value of Indebtedness of the Company which is subordinated in right of payment to the Notes in exchange for, or out of the proceeds of, a substantially concurrent offering of, shares of the Capital Stock of the Company (other than Redeemable Stock); (v) payments or distributions, to dissenting stockholders pursuant to applicable law, pursuant to or in connection with a consolidation, merger or transfer of assets that complies with Article Five; (vi) Investments in Unrestricted Subsidiaries not to exceed $20 million at any one time outstanding; and (vii) Restricted Payments not to exceed $5 million in the aggregate; provided that, except in the case of clauses (i) and (iii), no Default or Event of Default shall have occurred and be continuing or occur as a consequence of the actions or payments set forth therein. Each Restricted Payment permitted pursuant to the preceding paragraph (other than the Restricted Payment referred to in clause (ii) thereof and an exchange of Capital Stock for Capital Stock or Indebtedness referred to in clause (iii) or (iv) thereof), and the Net Cash Proceeds from any issuance of Capital Stock referred to in clauses (iii) and (iv), shall be included in calculating whether the conditions of clause (C) of the first paragraph of this Section 4.04 have been met with respect to any subsequent Restricted Payments. In the event the proceeds of an issuance of Capital Stock of the Company are used for the redemption, repurchase or other acquisition of the Notes, or Indebtedness that is pari passu with the Notes, then the Net Cash Proceeds of such issuance shall be included in clause (C) of the first paragraph of this Section 4.04 only to the extent such proceeds are not used for such redemption, repurchase or other acquisition of Indebtedness.

Limitation on Restricted Payments. (a) The Company Guarantor will not, and will not permit any Restricted Subsidiary, directly or indirectly, to (i) declare or pay any dividend or make any distribution on or with respect to its Capital Stock (other than (x) dividends or distributions payable solely in shares of its Capital Stock (other than Disqualified Stock) or in options, warrants or other rights to acquire shares of such Capital Stock and (y) pro rata dividends or distributions on Common Stock of Restricted Subsidiaries held by minority stockholders, provided that such dividends do not in the aggregate exceed the minority stockholders' pro rata share of such Restricted Subsidiaries' net income from the first day of the fiscal quarter beginning immediately following the Closing Date) held by Persons other than the Company Guarantor or any of its Restricted Subsidiaries, (ii) purchase, redeem, retire or otherwise acquire for value any shares of Capital Stock of (A) the CompanyGuarantor or the Issuer, any Subsidiary Person that has sold Capital Stock which allows the Issuer or the Guarantor or such Person to Incur Indebtedness under clause (viii) of the second paragraph of Section 4.03 above or an Unrestricted Subsidiary (including options, warrants or other rights to acquire such shares of Capital Stock) held by Persons any Person or (B) a Restricted Subsidiary (including options, warrants or other rights to acquire such shares of Capital Stock) held by any Affiliate of the Guarantor (other than the Company and its a Wholly Owned SubsidiariesRestricted Subsidiary) or any holder (or any Affiliate of such holder) of 5% or more of the Capital Stock of the Guarantor, (iii) make any voluntary or optional principal payment, or voluntary or optional redemption, repurchase, defeasance, or other acquisition or retirement for value, prior to the scheduled maturity, of Indebtedness of the Company Guarantor or the Issuer that is subordinated in right of payment to the Notes or of any Subsidiary Guarantor that is subordinated to the Subsidiary Guaranties Note Guarantee (other than, in each case, than the purchase, repurchase or the acquisition of Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in any case due within one year of the date of acquisition) or (iv) make any Investment, other than a Permitted Investment, in any Person (such payments or any other actions described in clauses (i) through (iv) being collectively "RESTRICTED PAYMENTSRestricted Payments") if, if at the time of, and after giving effect to, the proposed Restricted Payment: (A) an a Default or Event of Default shall have occurred and be continuing, (B) except with respect to Investments in Restricted Subsidiaries and dividends on the Common Stock of any Subsidiary Guarantor paid to the Company or any Restricted SubsidiaryInvestments, the Company Guarantor could not Incur at least $1.00 of Indebtedness under the first sentence of paragraph (a) of Section 4.03 above or (C) the aggregate amount of all Restricted Payments (the amount, if other than in cash, to be determined in good faith by the Board of Directors, whose determination shall be conclusive and evidenced by a Board Resolution) made after the Closing Date (after giving pro forma effect to the proposed Restricted Payment) shall exceed the sum of (1) 50% of the aggregate amount of the Adjusted Consolidated Net Income (or, if the Adjusted Consolidated Net Income is a loss, minus 100% of the amount of such loss) (determined by excluding income resulting from transfers of assets by the Company Guarantor or a Restricted Subsidiary to an Unrestricted Subsidiary) accrued on a cumulative basis during the period (taken as one accounting period) beginning on the first day of the fiscal quarter immediately following the Closing Date and ending on the last day of the last fiscal quarter preceding the Transaction Date for which reports have been filed pursuant to Section 4.18 4.19 below plus (2) the aggregate amount of Designated Equity Net Cash Proceeds received by the Company Guarantor or the Issuer after the Closing DateDate from the issuance and sale permitted by the Indenture of Capital Stock of the Guarantor or the Issuer (other than Disqualified Stock), except to a Person who is not a Subsidiary of the Guarantor or from the issuance to a Person who is not a Subsidiary of the Guarantor of any options, warrants or other rights to acquire Capital Stock of the Issuer or the Guarantor (in each case, exclusive of any Disqualified Stock or any options, warrants or other rights that are redeemable at the option of the holder, or are required to be redeemed, prior to the extent such amount Stated Maturity of Designated Equity Proceeds is used as a basis to Incur Indebtedness pursuant to clause (ithe Notes) or (viii) of paragraph (a) under Section 4.03, plus (3) an amount equal to the net reduction in Investments (other than reductions in Permitted Investments) in any Person resulting from payments of interest on Indebtedness, dividends, repayments of loans or advances, or other transfers of assets, in each case to the Company Guarantor or any Restricted Subsidiary or from the Net Cash Proceeds from the sale of any such Investment (except, in each case, to the extent any such payment or proceeds are included in the calculation of Adjusted Consolidated Net Income), or from redesignations of Unrestricted Subsidiaries as Restricted Subsidiaries (valued in each case as provided in the definition of "Investments"), not to exceed, in each case, the amount of Investments previously made by the Company Guarantor or any Restricted Subsidiary in such Person or Unrestricted Subsidiary.. The foregoing provision shall not be violated by reason of: (i) the payment of any dividend within 60 days after the date of declaration thereof if, at said date of declaration, such payment would comply with the foregoing paragraph; (ii) the redemption, repurchase, defeasance or other acquisition or retirement for value of Indebtedness that is subordinated in right of payment to the Notes or the Note Guarantee, including premium, if any, and accrued and unpaid interest, with the proceeds of, or in exchange for, Indebtedness Incurred under clause (iii) of the second paragraph of part (a) of Section 4.03 above; (iii) the repurchase, redemption or other acquisition of Capital Stock of the Guarantor or the Issuer (or options, warrants or other rights to acquire such Capital Stock) in exchange for, or out of the proceeds of a substantially concurrent offering of, shares of Capital Stock (other than Disqualified Stock) of the Guarantor or the Issuer; (iv) the making of any principal payment or the repurchase, redemption, retirement, defeasance or other acquisition for value of Indebtedness of the Guarantor or the Issuer which is subordinated in right of payment to the Notes or the Note Guarantee, as the case may be, in exchange for, or out of the proceeds of, a substantially concurrent offering of, shares of the Capital Stock of the Guarantor or the Issuer (other than Disqualified Stock); (v) the declaration or payment of dividends on the Common Stock of the Guarantor or the Issuer following a Public Equity Offering of such Common Stock, of up to 6% per annum of the Net Cash Proceeds received by the Guarantor or the Issuer, as the case may be, in such Public Equity Offering; (vi) payments or distributions, to dissenting stockholders pursuant to applicable law, pursuant to or in connection with a consolidation, merger or transfer of assets that complies with the provisions of the Indenture applicable to mergers, consolidations and transfers of all or substantially all of the property and assets of the Guarantor; (vii) any Investments described in clause (A), (B) or (C) below, provided that the sum of such Investments does not exceed $25

Limitation on Restricted Payments. (a) The Company Issuer will not, and will not permit any of its Restricted SubsidiarySubsidiaries, directly or indirectly, to to: (i1) declare or pay any dividend or make any distribution on or with in respect to its of the Issuer’s or any Restricted Subsidiary’s Capital Stock (other than including any payment in connection with any merger or consol-idation involving the Issuer or any of its Restricted Subsidiaries) except: (xi) dividends or distributions payable solely in shares of its Capital Stock of the Issuer (other than Disqualified Dis-qualified Stock) or in options, warrants or other rights to acquire shares of purchase such Capital Stock of the Issuer or in Subordinated Shareholder Funding; and (yii) pro rata dividends or distributions on Common Stock of payable to the Issuer or a Restricted Subsidiaries held by minority stockholdersSubsidiary (and, provided that such dividends do not in the aggregate exceed the minority stockholders' pro rata share case of any such Restricted Subsidiaries' net income from the first day Subsidiary making such dividend or distribution, to holders of the fiscal quarter beginning immediately following the Closing Date) held by Persons its Capital Stock other than the Company Issuer or any of its another Restricted Subsidiaries, Subsidiary on no more than a pro rata basis in accordance with their Capital Stock holdings); (ii2) purchase, repurchase, redeem, retire or otherwise acquire or retire for value any shares of Capital Stock of the Company, Issuer or any Subsidiary Guarantor or an Unrestricted Subsidiary (including options, warrants or other rights to acquire such shares of Capital Stock) Parent Entity held by Persons other than the Company and its Wholly Owned Subsidiaries, Issuer or a Restricted Subsidiary; (iii3) make any voluntary or optional principal payment, or voluntary or optional redemptionpurchase, repurchase, defeasanceredeem, defease or otherwise acquire or retire for value, prior to scheduled maturity, scheduled repayment or scheduled sinking fund payment, any Subordinated Indebted-ness with an aggregate principal amount in excess of $20.0 million (it being understood that payments of regularly scheduled principal, interest and mandatory prepayments, redemptions or offers to purchase shall be permitted), other than (a) any such purchase, repurchase, redemption, defeasance or other acquisition or retirement for value, of Indebtedness of the Company that is subordinated in right of payment to the Notes or of any Subsidiary Guarantor that is subordinated to the Subsidiary Guaranties (other than, in each case, the purchase, repurchase or the acquisition of Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in any case each case, due within one year of the date of acquisitionpurchase, repurchase, redemption, defeasance or other acquisi-tion or retirement and (b) or any Indebtedness Incurred pursuant to Section 3.2(b)(3)); (iv4) make any payment (whether of principal, interest or other amounts) on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value, any Subordinated Shareholder Fund-ing (other than any payment of interest thereon in the form of additional Subordinated Shareholder Fund-ing); or (5) make any Restricted Investment; -69- (any such dividend, distribution, purchase, redemption, repurchase, defeasance, other than a Permitted Investmentacquisition, in any Person (such payments retirement or any other actions described Re-stricted Investment referred to in clauses (i1) through (iv5) being collectively "RESTRICTED PAYMENTS"(other than any exceptions thereto) ifare referred to herein as a “Restricted Payment”), unless, at the time of, and after giving effect to, the proposed Issuer or such Restricted Subsidiary makes such Restricted Payment: (Ai) an no Event of Default (or, in the case of a Restricted Investment, no Event of Default under Section 6.1(a) (1), (2), (5) or (6)) shall have occurred and be continuing, continuing (Bor would result immediately thereafter therefrom); (ii) except with respect to Investments in the case of a Restricted Subsidiaries and dividends Investment, if such Restricted Payment is made in reli-ance on the Common Stock of any Subsidiary Guarantor paid to the Company or any Restricted SubsidiarySection 3.3(a)(iii)(A), the Company could not Issuer would be permitted to Incur at least $1.00 of Indebtedness under additional Indebted-ness pursuant to the first sentence of paragraph Consolidated Coverage Ratio test set forth in Section 3.2(a); and (a) of Section 4.03 or (Ciii) the aggregate amount of such Restricted Payment and all other Restricted Payments made subsequent to the Escrow Release Date (and not returned or rescinded) (excluding all Restricted Payments (the amount, if other than in cash, to be determined in good faith permitted by the Board of Directors, whose determination shall be conclusive and evidenced by a Board ResolutionSection 3.3(b)) made after the Closing Date (after giving pro forma effect to the proposed Restricted Payment) shall would not exceed the sum of (1without duplication): (A) an amount equal to 50% of the aggregate amount of the Adjusted Consolidated Net Income (or, if the Adjusted Consolidated Net Income is a loss, minus 100% of the amount of such loss) (determined by excluding income resulting from transfers of assets by the Company or a Restricted Subsidiary to an Unrestricted Subsidiary) accrued on a cumulative basis during for the period (taken treated as one accounting period) beginning on from the first day of the fiscal quarter immediately following during which the Closing Escrow Release Date and ending on occurs to the last day end of the last Issuer’s most recent fiscal quarter preceding ending prior to the Transaction Date date of such Restricted Payment for which reports financial statements have been filed delivered pursuant to Section 4.18 3.10 (or, in the case such Consolidated Net Income is a deficit, minus 100% of such deficit, which amount in this clause (A) shall not be less than zero); plus (2B) 100% of the aggregate net cash proceeds, and the fair market value of property or assets or marketable securities, received by the Issuer and its Restricted Subsidiaries subsequent to the Escrow Release Date (other than net cash proceeds to the extent such net cash proceeds have been used to Incur Indebtedness, Disqualified Stock or Preferred Stock pursuant to Section 3.2(b)(10)) from the issue or sale of (w) Subordinated Shareholder Funding, (x) Capital Stock of the Issuer, including Retired Capital Stock, but excluding cash proceeds and the fair market value of marketable securities or other property received from the sale of (A) Capital Stock or Subordi-nated Shareholder Funding to any employee, director, manager or consultant of the Issuer, any Parent Entity and any of the Issuer’s Subsidiaries after the Escrow Release Date to the extent such amounts have been applied to Restricted Payments made in accordance Section 3.3(b)(6) and (B) Designated Preferred Stock, (y) Capital Stock of any Parent Entity to the extent the net cash pro-ceeds thereof or property, assets or marketable securities received in connection therewith are ac-tually contributed to the Issuer (excluding, in the case of this clause (y), contributions of the pro-ceeds from the sale of Designated Preferred Stock by any such Parent Entity to the extent such amounts have been applied to Restricted Payments made in accordance with Section 3.3(b)(13)) or (z) Indebtedness of the Issuer or a Restricted Subsidiary that has been converted into or exchanged for Capital Stock of the Issuer or any Parent Entity; provided that this clause (B) shall not include the proceeds from (a) Refunding Capital Stock, (b) Subordinated Shareholder Funding, Capital Stock or Indebtedness that has been converted or exchanged for Capital Stock of the Issuer or sold to a Restricted Subsidiary, as the case may be, (c) Indebtedness that has been converted or ex-changed into Disqualified Stock or (d) Excluded Contributions; plus (C) 100% of the aggregate amount of Designated Equity Proceeds cash, and the fair market value of property or assets or marketable securities, received by the Company after the Closing Date, except Issuer and its Restricted Subsidiaries subsequent to the extent such amount of Designated Equity Proceeds is used as a basis to Incur Indebtedness pursuant to clause (i) or (viii) of paragraph (a) under Section 4.03, plus (3) an amount equal Escrow Release Date from contributions to the net reduction in Investments (other than reductions in Permitted Investments) in any Person resulting from payments Capital Stock of interest on Indebtedness, dividends, repayments of loans or advances, or other transfers of assets, in each case to the Company Issuer or any Restricted Subsidiary (other than (x) amounts used to Incur Indebtedness or from issue Disqualified Stock or Pre-ferred Stock pursuant to Section 3.2(b)(10), (y) amounts that are contributed by the Net Cash Proceeds from Issuer or a Re-stricted Subsidiary or (z) amounts that constitute Excluded Contributions); plus (D) 100% of the aggregate amount received in cash and the fair market value of marketable securities or other property received by the Issuer and its Restricted Subsidiaries by means of: (x) the sale of any such Investment or other disposition (except, in each case, other than to the extent any such payment Issuer or proceeds are included in the calculation a Restricted Subsidiary) of Adjusted Consolidated Net Income), or from redesignations of Unrestricted Subsidiaries as Restricted Subsidiaries (valued in each case as provided in the definition of "Investments"), not to exceed, in each case, the amount of Investments previously made by the Company Issuer or any Restricted Subsidiary in such Person or Unrestricted Subsidiary.and repurchases and re--70-

Limitation on Restricted Payments. (a) The Company Issuer will not, and will not permit any Restricted SubsidiarySubsidiary to, directly or indirectly, to : (ia) declare or pay any dividend or make any distribution on account of the Issuer’s or any Restricted Subsidiary’s Equity Interests, including any dividend or distribution payable on account of the Issuer’s or any Restricted Subsidiary’s Equity Interests in connection with respect to its Capital Stock any merger or consolidation other than: (other than (x1) dividends or distributions by the Issuer payable solely in shares of its Capital Stock Equity Interests (other than Disqualified Stock) of the Issuer or in options, warrants or other rights to acquire shares of purchase such Capital Stock and Equity Interests, or (y2) pro rata dividends or distributions on Common Stock of by a Restricted Subsidiaries held by minority stockholdersSubsidiary so long as, provided that such dividends do not in the aggregate exceed case of any dividend or distribution payable on or in respect of any class or series of securities issued by a Subsidiary other than a Wholly-Owned Subsidiary, the minority stockholders' Issuer or a Restricted Subsidiary receives at least its pro rata share of such Restricted Subsidiaries' net income from the first day dividend or distribution in accordance with its Equity Interests in such class or series of the fiscal quarter beginning immediately following the Closing Date) held by Persons other than the Company or any of its Restricted Subsidiaries, securities; (iib) purchase, redeem, retire defease or otherwise acquire or retire for value any shares of Capital Stock Equity Interests of the CompanyIssuer or any direct or indirect parent of the Issuer, including any Subsidiary Guarantor dividend or an Unrestricted Subsidiary distribution payable in connection with any merger, amalgamation or consolidation; (including options, warrants or other rights to acquire such shares of Capital Stock) held by Persons other than the Company and its Wholly Owned Subsidiaries, (iiic) make any voluntary or optional principal paymentpayment on, or voluntary or optional redemptionredeem, repurchase, defeasance, defease or other acquisition otherwise acquire or retirement retire for value, of Indebtedness of the Company that is subordinated in right of payment to the Notes or of any Subsidiary Guarantor that is subordinated to the Subsidiary Guaranties (other than, value in each case, prior to any scheduled repayment, sinking fund payment or maturity, any Subordinated Indebtedness, other than the purchase, repurchase or the other 76709813v13 73 acquisition of Subordinated Indebtedness purchased in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in any each case due within one year of the date of purchase, repurchase or acquisition) ; or (ivd) make any Investment, other than a Permitted Investment, in any Person Restricted Investment (all such payments or any and other actions described set forth in clauses (ia) through (ivd) above being collectively "RESTRICTED PAYMENTS"referred to as “Restricted Payments”). The foregoing provisions will not prohibit: (1) the payment of any dividend or distribution or the consummation of any irrevocable redemption within 60 days after the date of declaration thereof or the giving of such irrevocable notice, as applicable, if, at the time date of declaration or the giving of such notice, such payment would have complied with the provisions of this Indenture (assuming, in the case of a redemption payment, the giving of the notice of such redemption payment would have been deemed to be a Restricted Payment at such time); (2) the redemption, repurchase, retirement, defeasance or other acquisition of any Equity Interests (“Retired Capital Stock”) or Subordinated Indebtedness of the Issuer, in exchange for, or out of the proceeds of the substantially concurrent sale (other than to a Restricted Subsidiary) of, and after giving effect toEquity Interests of the Issuer (in each case, other than any Disqualified Stock) (“Refunding Capital Stock”); (3) the proposed redemption, repurchase, defeasance, exchange or other acquisition or retirement of Subordinated Indebtedness of the Issuer or any Restricted PaymentSubsidiary made by exchange for, or out of the proceeds of the substantially concurrent sale of, new Indebtedness of the Issuer or any Restricted Subsidiary which is incurred in compliance with Section 10.11 so long as: (A) an Event the principal amount (or accreted value, in the case of Default shall have occurred Indebtedness issued at a discount) of such new Indebtedness does not exceed the principal amount (or accreted value, if applicable) of the Subordinated Indebtedness being so redeemed, repurchased, acquired, defeased, exchanged or retired, plus the amount of any reasonable fees, expenses and be continuingpremium incurred or paid in connection with such redemption, repurchase, acquisition, defeasance, exchange or retirement and the incurrence of such new Indebtedness; (B) except with respect to Investments in Restricted Subsidiaries and dividends on the Common Stock of any Subsidiary Guarantor paid such new Indebtedness is subordinated to the Company or any Restricted Subsidiary, the Company could not Incur Notes at least $1.00 of to the same extent as such Subordinated Indebtedness under the first sentence of paragraph (a) of Section 4.03 so redeemed, repurchased, defeased, exchanged, acquired or retired; (C) such new Indebtedness has a final scheduled maturity date equal to or later than the aggregate amount of all Restricted Payments (the amount, if other than in cash, to be determined in good faith by the Board of Directors, whose determination shall be conclusive and evidenced by a Board Resolution) made after the Closing Date (after giving pro forma effect to the proposed Restricted Payment) shall exceed the sum of (1) 50% final scheduled maturity date of the aggregate amount of the Adjusted Consolidated Net Income (orSubordinated Indebtedness being so redeemed, if the Adjusted Consolidated Net Income is a lossrepurchased, minus 100% of the amount of such loss) (determined by excluding income resulting from transfers of assets by the Company defeased, exchanged, acquired or a Restricted Subsidiary to an Unrestricted Subsidiary) accrued on a cumulative basis during the period (taken as one accounting period) beginning on the first day of the fiscal quarter immediately following the Closing Date and ending on the last day of the last fiscal quarter preceding the Transaction Date for which reports have been filed pursuant to Section 4.18 plus (2) the aggregate amount of Designated Equity Proceeds received by the Company after the Closing Date, except to the extent such amount of Designated Equity Proceeds is used as a basis to Incur Indebtedness pursuant to clause (i) or (viii) of paragraph (a) under Section 4.03, plus (3) an amount equal to the net reduction in Investments (other than reductions in Permitted Investments) in any Person resulting from payments of interest on Indebtedness, dividends, repayments of loans or advances, or other transfers of assets, in each case to the Company or any Restricted Subsidiary or from the Net Cash Proceeds from the sale of any such Investment (except, in each case, to the extent any such payment or proceeds are included in the calculation of Adjusted Consolidated Net Income), or from redesignations of Unrestricted Subsidiaries as Restricted Subsidiaries (valued in each case as provided in the definition of "Investments"), not to exceed, in each case, the amount of Investments previously made by the Company or any Restricted Subsidiary in such Person or Unrestricted Subsidiary.retired;

Limitation on Restricted Payments. (a) The Company will not, and will not permit any Restricted Subsidiary, of its Subsidiaries to directly or indirectly, to : (i) declare or pay any dividend or make any distribution on account of the Company's or any of its Subsidiaries' Equity Interests (including, without limitation, any payment in connection with respect to its Capital Stock any merger or consolidation involving the Company) (other than (x) dividends or distributions payable solely in shares of its Capital Stock Equity Interests (other than Disqualified Stock) of the Company or in options, warrants or other rights to acquire shares of such Capital Stock and (y) pro rata dividends or distributions on Common Stock of Restricted Subsidiaries held by minority stockholders, provided that such dividends do not in the aggregate exceed the minority stockholders' pro rata share of such Restricted Subsidiaries' net income from the first day of the fiscal quarter beginning immediately following the Closing Date) held by Persons other than payable to the Company or any Subsidiary of the Company (and, if such Subsidiary is not a Wholly Owned Subsidiary, to its Restricted Subsidiariesother shareholders on a pro rata basis)), (ii) purchase, redeem, retire redeem or otherwise acquire or retire for value any shares of Capital Stock Equity Interests of the Company, Company or any Subsidiary Guarantor or an Unrestricted Subsidiary of the Company (including options, warrants or other rights to acquire such shares of Capital Stock) held by Persons other than any such Equity Interests owned by the Company and its or any Wholly Owned SubsidiariesSubsidiary of the Company that is a Subsidiary Guarantor), (iii) make any voluntary or optional principal paymentpayment on, or voluntary purchase, redeem, defease or optional redemption, repurchase, defeasance, otherwise acquire or other acquisition or retirement retire for value, of value any Indebtedness of the Company that is subordinated in right of payment to the Notes or of any Subsidiary Guarantor that is subordinated to the Subsidiary Guaranties Notes, prior to scheduled maturity, or applicable scheduled repayment or scheduled sinking fund payment date with respect thereto and in the applicable amounts so required (other than, in each case, than any of the purchase, repurchase or the acquisition of foregoing with respect to such Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in any case each case, due within one year of the date of acquisitionsuch transaction and in the applicable amounts so required), other than through the purchase or acquisition by the Company of Indebtedness through the issuance in exchange therefor of Equity Interests (other than Disqualified Stock) or (iv) make any Investment, other than a Permitted Investment, in any Person Restricted Investment (all such payments or any and other actions described set forth in clauses (i) through (iv) above being collectively referred to as "RESTRICTED PAYMENTSRestricted Payments") if), unless, at the time of, of and after giving effect to, the proposed to such Restricted Payment: (A) an Event of Default shall have occurred and be continuing, (B) except with respect to Investments in Restricted Subsidiaries and dividends on the Common Stock of any Subsidiary Guarantor paid to the Company or any Restricted Subsidiary, the Company could not Incur at least $1.00 of Indebtedness under the first sentence of paragraph (a) of Section 4.03 or (C) the aggregate amount of all Restricted Payments (the amount, if other than in cash, to be determined in good faith by the Board of Directors, whose determination shall be conclusive and evidenced by a Board Resolution) made after the Closing Date (after giving pro forma effect to the proposed Restricted Payment) shall exceed the sum of (1) 50% of the aggregate amount of the Adjusted Consolidated Net Income (or, if the Adjusted Consolidated Net Income is a loss, minus 100% of the amount of such loss) (determined by excluding income resulting from transfers of assets by the Company or a Restricted Subsidiary to an Unrestricted Subsidiary) accrued on a cumulative basis during the period (taken as one accounting period) beginning on the first day of the fiscal quarter immediately following the Closing Date and ending on the last day of the last fiscal quarter preceding the Transaction Date for which reports have been filed pursuant to Section 4.18 plus (2) the aggregate amount of Designated Equity Proceeds received by the Company after the Closing Date, except to the extent such amount of Designated Equity Proceeds is used as a basis to Incur Indebtedness pursuant to clause (i) or (viii) of paragraph (a) under Section 4.03, plus (3) an amount equal to the net reduction in Investments (other than reductions in Permitted Investments) in any Person resulting from payments of interest on Indebtedness, dividends, repayments of loans or advances, or other transfers of assets, in each case to the Company or any Restricted Subsidiary or from the Net Cash Proceeds from the sale of any such Investment (except, in each case, to the extent any such payment or proceeds are included in the calculation of Adjusted Consolidated Net Income), or from redesignations of Unrestricted Subsidiaries as Restricted Subsidiaries (valued in each case as provided in the definition of "Investments"), not to exceed, in each case, the amount of Investments previously made by the Company or any Restricted Subsidiary in such Person or Unrestricted Subsidiary.:

Limitation on Restricted Payments. (a) The Company will not, and will not permit any Restricted Subsidiary, directly or indirectly, to (i) declare or pay any dividend or make any distribution on or with respect to its Capital Stock (other than (x) dividends or distributions payable solely in shares of its Capital Stock (other than Disqualified Stock) or in options, warrants or other rights to acquire shares of such Capital Stock and (y) pro rata dividends or distributions on Common Stock of Restricted Subsidiaries held by minority other stockholders, provided that such dividends do not in the aggregate exceed the minority stockholders' pro rata share of such Restricted Subsidiaries' net income from the first day of the fiscal quarter beginning immediately following the Closing Date) held by Persons other than the Company or any of its Restricted Subsidiaries, (ii) purchase, redeem, retire or otherwise acquire for value any shares of Capital Stock of (A) the Company, any Subsidiary Guarantor Company or an Unrestricted Subsidiary (including options, warrants or other rights to acquire such shares of Capital Stock) held by Persons any Person or (B) a Restricted Subsidiary (including options, warrants or other rights to acquire such shares of Capital Stock) held by any Affiliate of the Company (other than the Company and its a Wholly Owned SubsidiariesRestricted Subsidiary) or any holder (or any Affiliate of such holder) of 5% or more of the Capital Stock of the Company, (iii) make any voluntary or optional principal payment, or voluntary or optional redemption, repurchase, defeasance, or other acquisition or retirement for value, prior to the scheduled maturity, of Indebtedness of the Company that is subordinated in right of payment to the Notes or of any Subsidiary Guarantor that is subordinated to the Subsidiary Guaranties (other than, in each case, than the purchase, repurchase or the acquisition of Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in any case due within one year of the date of acquisition) or (iv) make any Investment, other than a Permitted Investment, in any Person (such payments or any other actions described in clauses (i) through (iv) being collectively "RESTRICTED PAYMENTSRestricted Payments") if, at 42 36 the time of, and after giving effect to, the proposed Restricted Payment: (A) an a Default or Event of Default shall have occurred and be continuing, (B) except with respect to Investments in Restricted Subsidiaries and dividends on the Common Stock of any Subsidiary Guarantor paid to the Company or any Restricted SubsidiaryInvestments, the Company could not Incur at least $1.00 of Indebtedness under the first sentence of paragraph (a) of Section 4.03 4.02 or (C) the aggregate amount of all Restricted Payments (the amount, if other than in cash, to be determined in good faith by the Board of Directors, whose determination shall be conclusive and evidenced by a Board Resolution) made after the Closing Date (after giving pro forma effect Date, plus the outstanding amount of all Permitted Investments permitted pursuant to the proposed Restricted Paymentsecond proviso of clause (i) of the definition of Permitted Investment, shall exceed the sum of (1) 50% of the aggregate amount of the Adjusted Consolidated Net Income (or, if the Adjusted Consolidated Net Income is a loss, minus 100% of the amount of such loss) (determined by excluding income resulting from transfers of assets by the Company or a Restricted Subsidiary to an Unrestricted Subsidiary) accrued on a cumulative basis during the period (taken as one accounting period) beginning on the first day of the fiscal quarter immediately following the Closing Date and ending on the last day of the last fiscal quarter preceding the Transaction Date for which reports have been filed pursuant to Section 4.18 4.17 plus (2) the aggregate amount of Designated Equity Net Cash Proceeds received by the Company after the Closing DateDate from the issuance and sale permitted by this Indenture of Capital Stock of the Company (other than Disqualified Stock), except to a Person who is not a Subsidiary of the Company or from the issuance to a Person who is not a Subsidiary of the Company of any options, warrants or other rights to acquire Capital Stock of the Company (in each case, exclusive of any Disqualified Stock or any options, warrants or other rights that are redeemable at the option of the holder, or are required to be redeemed, prior to the extent such amount Stated Maturity of Designated Equity Proceeds is used as a basis to Incur Indebtedness pursuant to clause (ithe Notes) or (viii) of paragraph (a) under Section 4.03, plus (3) an amount equal to the net reduction in Investments (other than reductions in Permitted InvestmentsInvestments except for Permitted Investments permitted pursuant to the second proviso of clause (i) in the definition of Permitted Investment) in any Person resulting from payments of interest on Indebtedness, dividends, repayments of loans or advances, or other transfers of assets, in each case to the Company or any Restricted Subsidiary or from the Net Cash Proceeds from the sale of any such Investment (except, in each case, to the extent any such payment or proceeds are included in the calculation of Adjusted Consolidated Net Income), or from redesignations of Unrestricted Subsidiaries as Restricted Subsidiaries (valued in each case as provided in the definition of "Investments"), not to exceed, in each case, the amount of Investments previously made by the Company or any Restricted Subsidiary in such Person or Unrestricted Subsidiary.. The foregoing provision shall not be violated by reason of: (i) the payment of any dividend within 60 days after the date of declaration thereof if, at said date of declaration, such payment would comply with the foregoing paragraph; (ii) the redemption, repurchase, defeasance or other acquisition or retirement for value of Indebtedness that is subordinated in right of payment to the Notes, including premium, if any, and accrued and unpaid interest, with the proceeds of, or in exchange for, Indebtedness Incurred under clause (iii) of the second paragraph of part (a) of Section 4.02; (iii) the repurchase, redemption or other acquisition of Capital Stock of the Company (or options, warrants or other rights to 43 37

Limitation on Restricted Payments. (a) The Company will not, and will not permit any Restricted SubsidiarySubsidiary to, directly or indirectly, to (i) declare or pay any dividend or make any distribution on or with respect to its Capital Stock (other than (xA) dividends or distributions payable solely in shares of its Capital Stock (other than Disqualified Redeemable Stock) or in options, warrants or other rights to acquire shares of such Capital Stock and (yB) pro rata dividends or distributions on Common Stock of Restricted Subsidiaries held by minority stockholders, provided that such dividends do not in the aggregate exceed the minority stockholders' pro rata share of such Restricted Subsidiaries' net income from the first day of the fiscal quarter beginning immediately following the Closing Date) held by Persons other than the Company or any of its Wholly Owned Restricted Subsidiaries, (ii) purchase, redeem, retire or otherwise acquire for value any shares of Capital Stock of (x) the Company, any Subsidiary Guarantor Company or an Unrestricted Subsidiary (including options, warrants or other rights to acquire such shares of Capital Stock) held by Persons any Person or (y) a Restricted Subsidiary (including options, warrants or other rights to acquire such shares of Capital Stock) held by any Affiliate of the Company (other than the Company and its a Wholly Owned SubsidiariesRestricted Subsidiary) or any holder (or any Affiliate of such holder) of 5% or more of the Capital Stock of the Company, (iii) make any voluntary or optional principal payment, or voluntary or optional redemption, repurchase, defeasance, or other acquisition or retirement for value, of Indebtedness of the Company that is subordinated in right -38- 42 of payment to the Notes or of any Subsidiary Guarantor that is subordinated to the Subsidiary Guaranties (other than, in each case, than the purchase, repurchase or the acquisition of Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in any case due within one year of the date of acquisition) or (iv) make any Investment, other than a Permitted Investment, in any Person (such payments or any other actions described in clauses (i) through (iv) of this paragraph (a) being collectively "RESTRICTED PAYMENTSRestricted Payments") if, at the time of, and after giving effect to, the proposed Restricted Payment: (A) an a Default or Event of Default shall have occurred and be continuing, (B) except with respect to Investments in Restricted Subsidiaries and dividends on the Common Stock of any Subsidiary Guarantor paid to the Company or any Restricted Subsidiary, the Company could not Incur at least $1.00 of Indebtedness under the first sentence of paragraph (aSection 4.03(a) of Section 4.03 or (C) the aggregate amount of all Restricted Payments (the amount, if other than in cash, to be determined in good faith by the Board of Directors, whose determination shall be conclusive and evidenced by a Board Resolution) made after the Closing Date (after giving pro forma effect to the proposed Restricted Payment) shall exceed the sum of (1) 50% of the aggregate amount of the Adjusted Consolidated Net Income (or, if the Adjusted Consolidated Net Income is a loss, minus 100% of the amount of such loss) (determined by excluding income resulting from transfers of assets by the Company or a Restricted Subsidiary to an Unrestricted Subsidiary) accrued on a cumulative basis during the period (taken as one accounting period) beginning on the first day of the fiscal quarter immediately following the Closing Date and ending on the last day of the last fiscal quarter preceding the Transaction Date for which reports have been filed pursuant to Section 4.18 plus 4.19, (2) the aggregate amount of Designated Equity Net Cash Proceeds received by the Company after the Closing DateDate from the issuance and sale permitted by this Indenture of its Capital Stock (other than Redeemable Stock) to a Person who is not a Subsidiary of the Company, except including an issuance or sale permitted by this Indenture of Indebtedness of the Company for cash subsequent to the extent Closing Date upon the conversion of such amount of Designated Equity Proceeds is used as a basis to Incur Indebtedness pursuant to clause into Capital Stock (i) or (viiiother than Redeemable Stock) of paragraph the Company, or from the issuance to a Person who is not a Subsidiary of the Company of any options, warrants or other rights to acquire Capital Stock of the Company (a) under Section 4.03in each case, plus exclusive of any Redeemable Stock or any options, warrants or other rights that are redeemable at the option of the holder, or are required to be redeemed, prior to the Stated Maturity of the Notes), (3) an amount equal to the net reduction in Investments (other than reductions in Permitted Investments) in any Person resulting from payments of interest on Indebtedness, dividends, repayments of loans or advances, or other transfers of assets, in each case to the Company or any Restricted Subsidiary or from the Net Cash Proceeds from the sale of any such Investment (except, in each case, to the extent any such payment or proceeds are included in the calculation of Adjusted Consolidated Net Income), or from redesignations of Unrestricted Subsidiaries as Restricted Subsidiaries (valued in each case as provided in the definition of "Investments"), not to exceed, in each case, the amount of Investments previously made by the Company or any Restricted Subsidiary in such Person or Unrestricted SubsidiarySubsidiary and (4) $25 million.

Limitation on Restricted Payments. (a) The Company will not, and will not permit any of its Restricted SubsidiarySubsidiaries, directly or indirectly, to (i) declare or pay any dividend or make any distribution on or with in respect to of its Capital Stock (other than including any payment in connection with any merger or consolidation involving the Company or any of its Restricted Subsidiaries) except (xA) dividends or distributions payable solely in shares of its Capital Stock of the Company (other than Disqualified Stock) or in options, warrants or other rights to acquire shares of purchase such Capital Stock of the Company and (yB) pro rata dividends or distributions on Common Stock of Restricted Subsidiaries held by minority stockholders, provided that such dividends do not in the aggregate exceed the minority stockholders' pro rata share of such Restricted Subsidiaries' net income from the first day of the fiscal quarter beginning immediately following the Closing Date) held by Persons other than payable to the Company or any a Restricted Subsidiary of the Company (and if such Restricted Subsidiary is not a Wholly-Owned Subsidiary, to its Restricted Subsidiaries, other holders of common Capital Stock on a pro rata basis); (ii) purchase, redeem, retire or otherwise acquire for value any shares of Capital Stock of the Company, Company or any Subsidiary Guarantor direct or an Unrestricted Subsidiary (including options, warrants or other rights to acquire such shares indirect parent of Capital Stock) the Company held by Persons other than the Company and its Wholly Owned Subsidiaries, or a Restricted Subsidiary of the Company (other than in exchange for Capital Stock of the Company (other than Disqualified Stock)); (iii) make any voluntary or optional principal payment, or voluntary or optional redemptionpurchase, repurchase, defeasanceredeem, defease or other acquisition otherwise acquire or retirement retire for value, of Indebtedness of the Company that is subordinated in right of payment prior to the Notes scheduled maturity, scheduled repayment or of scheduled sinking fund payment, any Subsidiary Subordinated Obligations or Guarantor that is subordinated to the Subsidiary Guaranties Subordinated Obligations (other than, in each case, than the purchase, repurchase or the other acquisition of Indebtedness Subordinated Obligations or Guarantor Subordinated Obligations purchased in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in any each case due within one year of the date of purchase, repurchase or acquisition) or (iv) make any InvestmentRestricted Investment in any Person; (any such dividend, distribution, purchase, redemption, repurchase, defeasance, other than a Permitted Investmentacquisition, in any Person (such payments retirement or any other actions described Restricted Investment referred to in clauses (i) through (iv) being collectively shall be referred to herein as a "RESTRICTED PAYMENTSRestricted Payment") if), if at the time of, and after giving effect to, the proposed Restricted Payment: (A) an Event of Default shall have occurred and be continuing, (B) except with respect to Investments in Restricted Subsidiaries and dividends on the Common Stock of any Subsidiary Guarantor paid to the Company or any such Restricted Subsidiary, the Company could not Incur at least $1.00 of Indebtedness under the first sentence of paragraph (a) of Section 4.03 or (C) the aggregate amount of all Restricted Payments (the amount, if other than in cash, to be determined in good faith by the Board of Directors, whose determination shall be conclusive and evidenced by a Board Resolution) made after the Closing Date (after giving pro forma effect to the proposed Subsidiary makes such Restricted Payment) shall exceed the sum of (1) 50% of the aggregate amount of the Adjusted Consolidated Net Income (or, if the Adjusted Consolidated Net Income is a loss, minus 100% of the amount of such loss) (determined by excluding income resulting from transfers of assets by the Company or a Restricted Subsidiary to an Unrestricted Subsidiary) accrued on a cumulative basis during the period (taken as one accounting period) beginning on the first day of the fiscal quarter immediately following the Closing Date and ending on the last day of the last fiscal quarter preceding the Transaction Date for which reports have been filed pursuant to Section 4.18 plus (2) the aggregate amount of Designated Equity Proceeds received by the Company after the Closing Date, except to the extent such amount of Designated Equity Proceeds is used as a basis to Incur Indebtedness pursuant to clause (i) or (viii) of paragraph (a) under Section 4.03, plus (3) an amount equal to the net reduction in Investments (other than reductions in Permitted Investments) in any Person resulting from payments of interest on Indebtedness, dividends, repayments of loans or advances, or other transfers of assets, in each case to the Company or any Restricted Subsidiary or from the Net Cash Proceeds from the sale of any such Investment (except, in each case, to the extent any such payment or proceeds are included in the calculation of Adjusted Consolidated Net Income), or from redesignations of Unrestricted Subsidiaries as Restricted Subsidiaries (valued in each case as provided in the definition of "Investments"), not to exceed, in each case, the amount of Investments previously made by the Company or any Restricted Subsidiary in such Person or Unrestricted Subsidiary.:

Limitation on Restricted Payments. (a) The Company will not, and will not permit any Restricted Subsidiaryof its Subsidiaries to, directly or indirectly, to : (i) declare or pay any dividend or make any distribution Distribution on account of the Company's or with respect to any of its Capital Stock Subsidiaries' Equity Interests (other than (x) dividends or distributions Distributions payable solely in shares of its Capital Stock Equity Interests (other than Disqualified Stock) or in options, warrants or other rights to acquire shares of such Capital Stock and (y) pro rata dividends or distributions on Common Stock of Restricted Subsidiaries held by minority stockholders, provided that such dividends do not in the aggregate exceed the minority stockholders' pro rata share of such Restricted Subsidiaries' net income from the first day of the fiscal quarter beginning immediately following the Closing Date) held by Persons other than the Company or dividends or Distributions payable to the Company or, in the case of a Subsidiary, from such Subsidiary to any Wholly Owned Subsidiary of its Restricted Subsidiaries, the Company that is a Guarantor); (ii) purchase, redeem, retire redeem or otherwise acquire or retire for value any shares of Capital Stock Equity Interests of the Company, Company or any Subsidiary Guarantor or an Unrestricted Subsidiary (including options, warrants or other rights to acquire such shares Affiliate of Capital Stock) held by Persons the Company (other than any such Equity Interests owned by the Company and its or any Wholly Owned Subsidiaries, (iii) make any voluntary or optional principal payment, or voluntary or optional redemption, repurchase, defeasance, or other acquisition or retirement for value, of Indebtedness Subsidiary of the Company that is subordinated in right of payment to the Notes a Guarantor); (iii) purchase, redeem or of otherwise acquire or retire for value any Subsidiary Guarantor Indebtedness that is pari passu with or subordinated to the Subsidiary Guaranties Securities (other than, in each case, than the purchaseSecurities or the 1998 Notes (as hereinafter defined) (including pursuant to the 1998 Notes Offer (as hereinafter defined)); (iv) redeem, repurchase or defease (including, without limitation, in substance or legal defeasance) or in any other manner acquire or retire for value by the acquisition Company or any Subsidiary of Indebtedness in anticipation of satisfying a any Junior Debt or debt ranking pari passu with the Securities prior to any scheduled maturity, scheduled repayment or scheduled sinking fund obligation, principal installment or final maturity, in any case due within one year of the date of acquisition) payment; or (ivv) make any Investment, other than a Permitted Investment, in any Person Restricted Investment (all such payments or any and other actions described set forth in clauses (i) through (iv) above plus the net amount of Restricted Investment being collectively referred to as "RESTRICTED PAYMENTSRestricted Payments") if), unless, at the time of, and after giving effect to, the proposed of such Restricted Payment: (A) an Event of Default shall have occurred and be continuing, (B) except with respect to Investments in Restricted Subsidiaries and dividends on the Common Stock of any Subsidiary Guarantor paid to the Company or any Restricted Subsidiary, the Company could not Incur at least $1.00 of Indebtedness under the first sentence of paragraph (a) of Section 4.03 or (C) the aggregate amount of all Restricted Payments (the amount, if other than in cash, to be determined in good faith by the Board of Directors, whose determination shall be conclusive and evidenced by a Board Resolution) made after the Closing Date (after giving pro forma effect to the proposed Restricted Payment) shall exceed the sum of (1) 50% of the aggregate amount of the Adjusted Consolidated Net Income (or, if the Adjusted Consolidated Net Income is a loss, minus 100% of the amount of such loss) (determined by excluding income resulting from transfers of assets by the Company or a Restricted Subsidiary to an Unrestricted Subsidiary) accrued on a cumulative basis during the period (taken as one accounting period) beginning on the first day of the fiscal quarter immediately following the Closing Date and ending on the last day of the last fiscal quarter preceding the Transaction Date for which reports have been filed pursuant to Section 4.18 plus (2) the aggregate amount of Designated Equity Proceeds received by the Company after the Closing Date, except to the extent such amount of Designated Equity Proceeds is used as a basis to Incur Indebtedness pursuant to clause (i) or (viii) of paragraph (a) under Section 4.03, plus (3) an amount equal to the net reduction in Investments (other than reductions in Permitted Investments) in any Person resulting from payments of interest on Indebtedness, dividends, repayments of loans or advances, or other transfers of assets, in each case to the Company or any Restricted Subsidiary or from the Net Cash Proceeds from the sale of any such Investment (except, in each case, to the extent any such payment or proceeds are included in the calculation of Adjusted Consolidated Net Income), or from redesignations of Unrestricted Subsidiaries as Restricted Subsidiaries (valued in each case as provided in the definition of "Investments"), not to exceed, in each case, the amount of Investments previously made by the Company or any Restricted Subsidiary in such Person or Unrestricted Subsidiary.:

Limitation on Restricted Payments. Declare or pay any dividend (aother than dividends payable solely in common stock of the Person making such dividend) The Company will noton, and will or make any payment on account of, or set apart assets for a sinking or other analogous fund for, the purchase, redemption, defeasance, retirement or other acquisition of, any shares of any class of Capital Stock (including but not permit limited to in respect of any Restricted Subsidiarypreferred Capital Stock outstanding or dividends accumulated thereon on the Closing Date) of the Borrower or any of its Subsidiaries or any warrants or options to purchase any such Capital Stock or any of the Convertible Subordinated Debentures, whether now or hereafter outstanding, or make any other distribution in respect thereof or purchase any thereof, either directly or indirectly, whether in cash or property or in obligations of the Borrower or any Subsidiary, except that the Borrower (a) may make open market purchases of its outstanding common stock in an aggregate amount during the term of this Agreement not to exceed (i) declare $10,000,000, while the Consolidated Leverage Ratio is less than 3.75 to 1.0 but greater than or pay any dividend or make any distribution on or with respect equal to its Capital Stock (other than (x) dividends or distributions payable solely in shares of its Capital Stock (other than Disqualified Stock) or in options, warrants or other rights 2.50 to acquire shares of such Capital Stock 1.0 and (y) pro rata dividends or distributions on Common Stock of Restricted Subsidiaries held by minority stockholders, provided that such dividends do not in the aggregate exceed the minority stockholders' pro rata share of such Restricted Subsidiaries' net income from the first day of the fiscal quarter beginning immediately following the Closing Date) held by Persons other than the Company or any of its Restricted Subsidiaries, (ii) purchase, redeem, retire or otherwise acquire for value any shares of Capital Stock of the Company, any Subsidiary Guarantor or an Unrestricted Subsidiary $25,000,000 (including options, warrants or other rights to acquire such shares of Capital Stock) held by Persons other than the Company and its Wholly Owned Subsidiaries, (iii) make any voluntary or optional principal payment, or voluntary or optional redemption, repurchase, defeasance, or other acquisition or retirement for value, of Indebtedness of the Company that is subordinated in right of payment to the Notes or of any Subsidiary Guarantor that is subordinated to the Subsidiary Guaranties (other than, in each case, the purchase, repurchase or the acquisition of Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in any case due within one year of the date of acquisition) or (iv) make any Investment, other than a Permitted Investment, in any Person (such payments or any other actions described in clauses (i) through (iv) being collectively "RESTRICTED PAYMENTS") if, at the time of, and after giving effect to, the proposed Restricted Payment: (A) an Event of Default shall have occurred and be continuing, (B) except with respect to Investments in Restricted Subsidiaries and dividends on the Common Stock of any Subsidiary Guarantor paid to the Company or any Restricted Subsidiary, the Company could not Incur at least $1.00 of Indebtedness under the first sentence of paragraph (a) of Section 4.03 or (C) the aggregate amount of all Restricted Payments (the amount, if other than in cash, to be determined in good faith by the Board of Directors, whose determination shall be conclusive and evidenced by a Board Resolution) made after the Closing Date (after giving pro forma effect to the proposed Restricted Payment) shall exceed the sum of (1) 50% of the aggregate amount of the Adjusted Consolidated Net Income (or, if the Adjusted Consolidated Net Income is a loss, minus 100% of the amount of such loss) (determined by excluding income resulting from transfers of assets by the Company or a Restricted Subsidiary to an Unrestricted Subsidiary) accrued on a cumulative basis during the period (taken as one accounting period) beginning on the first day of the fiscal quarter immediately following the Closing Date and ending on the last day of the last fiscal quarter preceding the Transaction Date for which reports have been filed pursuant to Section 4.18 plus (2) the aggregate amount of Designated Equity Proceeds received by the Company after the Closing Date, except to the extent such amount of Designated Equity Proceeds is used as a basis to Incur Indebtedness amounts expended pursuant to clause (i)), while the Consolidated Leverage Ratio is less than 2.50 to 1.0, (b) or may (viiii) make scheduled payments of paragraph principal and interest in respect of the Convertible Subordinated Debentures, and (aii) under if permitted by Section 4.037.10, plus redeem the Convertible Subordinated Debentures after at least 90% of the Convertible Subordinated Debentures have been converted and (3c) an amount equal may make cash payments required pursuant to Section 11.1 of the Indenture in connection with conversions of the Convertible Subordinated Debentures. Notwithstanding the foregoing, any Subsidiary of the Borrower may pay dividends and other distributions to the net reduction in Investments (other than reductions in Permitted Investments) in any Person resulting from payments of interest on Indebtedness, dividends, repayments of loans or advances, or other transfers of assets, in each case Borrower and Servicios may pay dividends to the Company or any Restricted Subsidiary or from the Net Cash Proceeds from the sale of any such Investment (except, in each case, to the extent any such payment or proceeds are included in the calculation of Adjusted Consolidated Net Income), or from redesignations of Unrestricted Subsidiaries as Restricted Subsidiaries (valued in each case as provided in the definition of "Investments"), not to exceed, in each case, the amount of Investments previously made by the Company or any Restricted Subsidiary in such Person or Unrestricted Subsidiaryits shareholders.

Limitation on Restricted Payments. (a) The Company will not, --------------------------------- and will not permit any Restricted SubsidiarySubsidiary to, directly or indirectly, to (i) declare or pay any dividend or make any distribution on or with respect to its Capital Stock held by Persons other than the Company or any of its Restricted Subsidiaries (other than (x) dividends or distributions payable solely in shares of its Capital Stock (other than Disqualified Stock) or in options, warrants or other rights to acquire shares of such Capital Stock and (y) pro rata dividends or distributions on Common Stock of Restricted Subsidiaries other than the Obligors held by minority stockholders, provided that such dividends do not in the aggregate exceed the minority stockholders' pro rata share of such Restricted Subsidiaries' net income from the first day of the fiscal quarter beginning immediately following the Closing Date) held by Persons other than the Company or any of its Restricted Subsidiaries), (ii) purchase, redeem, retire or otherwise acquire for value any shares of Capital Stock of (A) the Company, any Subsidiary Guarantor an Obligor or an Unrestricted Subsidiary (including options, warrants or other rights to acquire such shares of Capital Stock) held by Persons any Person (other than the Company and its or a Wholly Owned SubsidiariesRestricted Subsidiary) or (B) any Restricted Subsidiary other than the Obligors (including options, warrants or other rights to acquire such shares of Capital Stock) held by any Affiliate of the Company or any Obligor (other than a Wholly Owned Restricted Subsidiary) or any holder (or any Affiliate of such holder) of 5% or more of the Capital Stock of the Company or any Obligor, (iii) make any voluntary or optional principal payment, or voluntary or optional redemption, repurchase, defeasance, or other acquisition or retirement for value, of Indebtedness of the Company that is subordinated in right of payment to the Notes Guaranty or Indebtedness of any Subsidiary Guarantor an Obligor that is subordinated in right of payment to the Subsidiary Guaranties (other than, in each case, the purchase, repurchase or the acquisition of Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in any case due within one year of the date of acquisition) Notes or (iv) make any Investment, other than a Permitted Investment, in any Person (such payments or any other actions described in clauses (i) through (iv) above being collectively "RESTRICTED PAYMENTSRestricted Payments") if, at the time ---------- -------- of, and after giving effect to, the proposed Restricted Payment: (A) an a Default or Event of Default shall have occurred and be continuing, (B) except with respect to Investments in Restricted Subsidiaries and dividends on the Common Stock of any Subsidiary Guarantor paid to the Company or any Restricted Subsidiary, the Company could not Incur at least $1.00 of Indebtedness under the first sentence of paragraph (a) of Section 4.03 or (C) the aggregate amount of all Restricted Payments (the amount, if other than in cash, to be determined in good faith by the Board of Directors, whose determination shall be conclusive and evidenced by a Board Resolution) made after the Closing Date (after giving pro forma effect to the proposed Restricted Payment) shall exceed the sum of (1) 50the amount by which Consolidated EBITDA exceeds 130% of the aggregate amount of the Adjusted Consolidated Net Income (orInterest Expense, if the Adjusted Consolidated Net Income is a lossin each case, minus 100% of the amount of such loss) (determined by excluding income resulting from transfers of assets by the Company or a Restricted Subsidiary to an Unrestricted Subsidiary) accrued on a cumulative basis during the period (taken as one accounting period) beginning on the first day of the fiscal quarter immediately following the Closing Date and ending on the last day of the last fiscal quarter preceding the Transaction Date for which reports have been filed with the Commission or provided to the Trustee pursuant to Section 4.18 plus (2) the aggregate amount of Designated Equity Net Cash Proceeds received by the Company or an Obligor after the Closing DateDate as a capital contribution (other than a capital contribution by the Company or any Subsidiary of the Company) or from the issuance and sale permitted by this Indenture of its Capital Stock (other than Disqualified Stock) to a Person other than the Company or any Subsidiary of the Company, including an issuance or sale permitted by this Indenture of Indebtedness of the Company or an Obligor for cash subsequent to the Closing Date upon the conversion of such Indebtedness into Capital Stock (other than Disqualified Stock) of the Company or such Obligor, or from the issuance to a Person other than the Company or any Subsidiary of the Company of any options, warrants or other rights to acquire Capital Stock of the Company or an Obligor (in each case, exclusive of any Disqualified Stock or any options, warrants or other rights that are redeemable at the option of the holder, or are required to be redeemed, prior to the Stated Maturity of the Notes), in each case except to the extent such amount of Designated Equity Net Cash Proceeds is are used as a basis to Incur Indebtedness pursuant to outstanding under clause (i) or (viii) of the second paragraph (a) under Section 4.03, plus (3) an amount equal to the net reduction in Investments (other than reductions in Permitted Investments) in any Person resulting from payments of interest on Indebtedness, dividends, repayments of loans or advances, or other transfers of assets, in each case to the Company or any Restricted Subsidiary or from the Net Cash Proceeds from the sale of any such Investment (except, in each case, to the extent any such payment or proceeds are included in the calculation of Adjusted Consolidated Net Income), or from redesignations of Unrestricted Subsidiaries as Restricted Subsidiaries (valued in each case as provided in the definition of "Investments"), not to exceed, in each case, the amount of Investments previously made by the Company or any Restricted Subsidiary in such Person or Unrestricted Subsidiary.. The foregoing provision shall not be violated by reason of: (i) the payment of any dividend within 60 days after the date of declaration thereof if, at said date of declaration, such payment would comply with the foregoing paragraph; (ii) the redemption, repurchase, defeasance or other acquisition or retirement for value of Indebtedness that is subordinated in right of payment to the Guaranty or the Notes including premium, if any, and accrued and unpaid interest, with the proceeds of, or in exchange for, Indebtedness Incurred under clause (iii) of the second paragraph of Section 4.03(a); (iii) the repurchase, redemption or other acquisition of Capital Stock of the Company, an Obligor or an Unrestricted Subsidiary (or options, warrants or other rights to acquire

Limitation on Restricted Payments. (a) The Company will not, and --------------------------------- will not permit any Restricted SubsidiarySubsidiary to, directly or indirectly, to (i) declare or pay any dividend or make any distribution on or with respect to its Capital Stock held by Persons other than the Company or its Restricted Subsidiaries (other than (x) dividends or distributions payable solely in shares of its Capital Stock (other than Disqualified Stock) or in options, warrants or other rights to acquire shares of such Capital Stock and (y) pro rata dividends or distributions on Common Stock of Restricted Subsidiaries held by minority stockholders, provided that such dividends do not in the aggregate exceed the minority stockholders' pro rata share of such Restricted Subsidiaries' net income from the first day of the fiscal quarter beginning immediately following the Closing Date) held by Persons other than the Company or any of its Restricted Subsidiaries), (ii) purchase, redeem, retire or otherwise acquire for value any shares of Capital Stock of (A) the Company, any Subsidiary Guarantor Company or an Unrestricted Subsidiary (including options, warrants or other rights to acquire such shares of Capital Stock) held by Persons any Person or (B) a Restricted Subsidiary (including options, warrants or other rights to acquire such shares of Capital Stock) held by any Affiliate of the Company (other than the Company and its a Wholly Owned SubsidiariesRestricted Subsidiary) or any holder (or any Affiliate of such holder) of 10% or more of the Capital Stock of the Company, (iii) make any voluntary or optional principal payment, or voluntary or optional redemption, repurchase, defeasance, or other acquisition or retirement for value, of Indebtedness of the Company that is subordinated in right of payment to the Notes or of any Subsidiary Guarantor that is subordinated to the Subsidiary Guaranties (other than, in each case, the purchase, repurchase or the acquisition of Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in any case due within one year of the date of acquisition) or (iv) make any Investment, other than a Permitted Investment, in any Person (such payments or any other actions described in clauses (i) through (iv) above being collectively "RESTRICTED PAYMENTSRestricted Payments") if, at the time of, and after giving effect to, the proposed Restricted Payment: (A) an a Default or Event of Default shall have occurred and be continuing, (B) except with respect to Investments in Restricted Subsidiaries and dividends on the Common Stock of any Subsidiary Guarantor paid to the Company or any Restricted Subsidiary, the Company could not Incur at least $1.00 of Indebtedness under the first sentence of paragraph (a) of Section 4.03 4.03(a) or (C) the aggregate amount of all Restricted Payments (the amount, if other than in cash, to be determined in good faith by the Board of Directors, whose determination shall be conclusive and evidenced by a Board Resolution) made after the Closing Date (after giving pro forma effect to the proposed Restricted Payment) June 9, 1997 shall exceed the sum of (1) 50% of the aggregate amount of the Adjusted Consolidated Net Income (or, if the Adjusted Consolidated Net Income is a loss, minus 100% of the amount of such loss) (determined by excluding income resulting from transfers of assets by the Company or a Restricted Subsidiary to an Unrestricted Subsidiary) accrued on a cumulative basis during the period (taken as one accounting period) beginning on the first day of the fiscal quarter immediately following the Closing Date April 1, 1997 and ending on the last day of the last fiscal quarter preceding the Transaction Date for which reports have been filed pursuant to Section 4.18 plus (2) with the aggregate amount of Designated Equity Proceeds received by the Company after the Closing Date, except Commission or provided to the extent such amount of Designated Equity Proceeds is used as a basis to Incur Indebtedness Trustee pursuant to clause (i) or (viii) of paragraph (a) under Section 4.03, plus (3) an amount equal to the net reduction in Investments (other than reductions in Permitted Investments) in any Person resulting from payments of interest on Indebtedness, dividends, repayments of loans or advances, or other transfers of assets, in each case to the Company or any Restricted Subsidiary or from the Net Cash Proceeds from the sale of any such Investment (except, in each case, to the extent any such payment or proceeds are included in the calculation of Adjusted Consolidated Net Income), or from redesignations of Unrestricted Subsidiaries as Restricted Subsidiaries (valued in each case as provided in the definition of "Investments"), not to exceed, in each case, the amount of Investments previously made by the Company or any Restricted Subsidiary in such Person or Unrestricted Subsidiary.to

Limitation on Restricted Payments. (a) The Company will not, and will not permit any Restricted SubsidiarySubsidiary to, directly or indirectly, to indirectly (ia) declare or pay any dividend or make any distribution on or with respect to its Capital Stock (other than (xi) dividends or distributions payable solely in shares of its Capital Stock (other than Disqualified Stock) or in options, warrants or other rights to acquire shares of such Capital Stock Stock, (ii) dividends or distributions payable to the Company or a Restricted Subsidiary, and (yiii) pro rata dividends or distributions on Common Capital Stock of Restricted Subsidiaries held by minority stockholders, provided that such dividends do not in the aggregate exceed the minority stockholders' pro rata share of such Restricted Subsidiaries' net income from the first day of the fiscal quarter beginning immediately following the Closing Date) Date held by Persons other than the Company or any of its Restricted Subsidiaries, ; (iib) purchase, call for redemption or redeem, retire or otherwise acquire for value any shares of Capital Stock of (i) the CompanyCompany (including options, warrants or other rights to acquire such shares of Capital Stock) held by any Subsidiary Guarantor Person or an Unrestricted (ii) a Restricted Subsidiary (including options, warrants or other rights to acquire such shares of Capital Stock) held by Persons any of the Company's Affiliates (other than the Company and its a Wholly Owned Subsidiaries, Restricted Subsidiary) or any holder (iiior any Affiliate of such holder) of 5% or more of the Capital Stock of the Company; (c) make any voluntary or optional principal payment, or voluntary or optional redemption, repurchase, defeasance, or other acquisition or retirement for value, of Indebtedness of the Company that is subordinated in right of payment to the Notes or of any Subsidiary Guarantor that is subordinated Securities prior to the Subsidiary Guaranties (other than, in each case, the purchase, repurchase or the acquisition Stated Maturity of Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in any case due within one year of the date of acquisition) such Indebtedness; or (ivd) make any Investment, other than a Permitted Investment, in any Person (such payments or any other actions described in clauses subclauses (ia) through (ivd) above being collectively "RESTRICTED PAYMENTSRestricted Payments") if, at the time of, and after giving effect to, the proposed Restricted Payment: (Ai) an a Default or Event of Default shall have occurred and be continuing, (Bii) except with respect to Investments in Restricted Subsidiaries and dividends on the Common Stock of any Subsidiary Guarantor paid to the Company or any Restricted Subsidiary, the Company could not Incur at least $1.00 of Indebtedness under the first sentence paragraph of paragraph clause (a) of Section 4.03 1008 or (Ciii) the aggregate amount of all Restricted Payments (the amount, if other than in cash, to be determined in good faith by the Board of Directors, whose determination shall be conclusive and evidenced by a Board Resolution) made after the Closing Date (after giving pro forma effect to the proposed Restricted Payment) shall exceed the sum of (1A) 50% of the aggregate amount of the Adjusted Consolidated Net Income (or, if the Adjusted Consolidated Net Income is a loss, minus 100% of the amount of such loss) (determined by excluding income resulting from transfers of assets by the Company or a Restricted Subsidiary to an Unrestricted Subsidiary) accrued on a cumulative basis during the period (taken as one accounting period) beginning on the first day of the fiscal quarter immediately following the Closing Date and ending on the last day of the last fiscal quarter preceding the Transaction Date for which reports have been filed pursuant to Section 4.18 Date, plus (2B) the aggregate amount of Designated Equity Net Cash Proceeds received by the Company after the Closing DateDate as a capital contribution or from the issuance and sale permitted by the Indenture of the Company's Capital Stock (other than Disqualified Stock) to a Person who is not a Restricted Subsidiary of the Company, except including an issuance or sale permitted by the Indenture of Indebtedness of the Company for cash subsequent to the extent Closing Date upon the conversion of such amount Indebtedness into the Company's Capital Stock (other than Disqualified Stock), or from the issuance to a Person who is not a Restricted Subsidiary of Designated Equity Proceeds is used as a basis the Company of any options, warrants or other rights to Incur Indebtedness pursuant acquire the Company's Capital Stock (in each case, exclusive of any Disqualified Stock or any options, warrants or other rights that are redeemable at the option of the holder, or are required to clause (i) or (viii) be redeemed, prior to the Stated Maturity of paragraph (a) under Section 4.03the Securities), plus (3C) an amount equal to the net reduction in Investments (other than reductions in Permitted Investments) in any Person resulting from payments of interest on Indebtedness, dividends, repayments of loans or advances, or other transfers of assets, in each case to the Company or any Restricted Subsidiary or from the Net Cash Proceeds from the sale or redemption of any such Investment (except, in each case, to the extent any such payment or proceeds are included in the calculation of Adjusted Consolidated Net Income), or from redesignations of Unrestricted Subsidiaries as Restricted Subsidiaries (valued in each case as provided in the definition of "Investments"), not to exceed, in each case, the amount of Investments (and treated as a Restricted Payment) previously made by the Company or any Restricted Subsidiary in such Person or Unrestricted Subsidiary, plus (D) $20 million. The foregoing covenant shall not be violated by reason of (a) the payment of any dividend or redemption of any Capital Stock within 60 days after the related date of declaration or call for redemption if, at said date of declaration or call for redemption, such payment or redemption would comply with the first paragraph of this Section 1009; (b) the redemption, repurchase, defeasance or other acquisition or retirement for value of Indebtedness that is subordinated in right of payment to the Securities, including premium, if any, and accrued interest, with the proceeds of, or in exchange for, Indebtedness Incurred under subclause (iv) of the second paragraph of clause (a) of Section 1008 hereof; (c) the making of any principal payment or the repurchase, redemption, retirement, defeasance or other acquisition for value of Indebtedness which is subordinated in right of payment to the Securities in exchange for, or out of the proceeds of, a substantially concurrent offering of, shares of the Company's Capital Stock (other than Disqualified Stock) or options, warrants or other rights to acquire such Capital Stock, provided that such options, warrants or other rights are not redeemable prior to the Stated Maturity of the Securities; (d) the repurchase, redemption or other acquisition of the Company's Capital Stock or options, warrants or other rights to acquire such Capital Stock in exchange for, or out of the proceeds of a substantially concurrent offering of, shares of the Company's Capital Stock (other than Disqualified Stock) or options, warrants or other rights to acquire such Capital Stock, provided that such options, warrants or other rights are not redeemable prior to the Stated Maturity of the Securities; (e) the repurchase, redemption or other acquisition of shares of Capital Stock of the Company or any Restricted Subsidiary from employees, directors or former directors (or transferees thereof) pursuant to the terms of agreements (including employment agreements) or plans approved by the Board of Directors of the Company or the relevant Restricted Subsidiary, provided that the aggregate amount of such repurchases, redemptions or other acquisitions shall not exceed $2.5 million in any year and $5.0 million prior to the Stated Maturity of the Securities; (f) payments or distributions, to dissenting stockholders pursuant to applicable law or constituent documents (as in effect on the Closing Date or, in the case of the constituent documents of any Restricted Subsidiary acquired after the Closing Date, on the date of such acquisition), or pursuant to or in connection with a consolidation, merger or transfer of assets that complies with the provisions of of Article VIII of this Indenture; or (g) Investments acquired as a capital contribution or in exchange for, or out of the proceeds of a substantially concurrent offering of, the Company's Capital Stock (other than Disqualified Stock); provided that, except in the case of subclauses (a) and (d) of this paragraph of Section 1009, no Default or Event of Default shall have occurred and be continuing or occur as a consequence of the actions or payments set forth therein. Each Restricted Payment permitted pursuant to the second paragraph of this Section 1009 (other than the Restricted Payment referred to in subclause (b) thereof, an exchange of Capital Stock for Capital Stock or Indebtedness referred to in subclause (c) or (d) thereof and an Investment acquired as a capital contribution or in exchange for Capital Stock referred to in subclause (g) thereof), and the Net Cash Proceeds from any issuance of Capital Stock referred to in subclause (c) or (d) of the second paragraph of Section 1009, shall be included in calculating whether the conditions of subclause (iii) of clause (d) of the first paragraph of this Section 1009 have been met with respect to any subsequent Restricted Payments. In the event the proceeds of an issuance of the Company's Capital Stock are used for the redemption, repurchase or other acquisition of the Securities, or Indebtedness that is pari passu with the Securities, then the Net Cash Proceeds of such issuance shall be included in subclause (iii) of clause (d) of the first paragraph of Section 1009 only to the extent such proceeds are not used for such redemption, repurchase or other acquisition of Indebtedness. For purposes of determining compliance with this Section 1009 (a) the amount, if other than in cash, of any Restricted Payment shall be determined in good faith by the Board of Directors, whose determination shall be conclusive and evidenced by a Board Resolution and (b) in the event that a Restricted Payment meets the criteria of more than one of the types of Restricted Payments described in this Section 1009, the Company, in its sole discretion, may order and classify, and from time to time may reclassify, such Restricted Payment if it would have been permitted at the time such Restricted Payment was made and at the time of such reclassification.

Limitation on Restricted Payments. (a) The Company will shall not, and will shall not permit any Restricted SubsidiarySubsidiary to, directly or indirectly, to : (i) declare or pay any dividend or make any distribution on or with in respect to of its Capital Stock (other than including any payment in connection with any merger or consolidation involving the Company) or to the direct or indirect holders of its Capital Stock in their capacities as such (x) except dividends or distributions payable solely in shares of its Capital Stock (other than Disqualified Stock) or in options, warrants or other rights to acquire shares of such purchase its Capital Stock (other than Disqualified Stock and (y) pro rata except dividends or distributions on Common Stock of Restricted Subsidiaries held by minority stockholders, provided that such dividends do not in the aggregate exceed the minority stockholders' pro rata share of such Restricted Subsidiaries' net income from the first day of the fiscal quarter beginning immediately following the Closing Date) held by Persons other than payable to the Company or any of its a Restricted SubsidiariesSubsidiary and, if a Restricted Subsidiary is not wholly owned, to all stockholders on a pro rata basis); (ii) purchase, redeem, retire redeem or otherwise acquire or retire for value any shares of Capital Stock of the Company or of any direct or indirect parent of the Company, any Subsidiary Guarantor or an Unrestricted Subsidiary (including options, warrants or other rights to acquire such shares of Capital Stock) held by Persons other than the Company and its Wholly Owned Subsidiaries, ; (iii) make any voluntary or optional principal payment, or voluntary or optional redemptionpurchase, repurchase, defeasanceredeem, defease or other acquisition otherwise acquire or retirement retire for value, of Indebtedness of the Company that is subordinated in right of payment prior to the Notes scheduled maturity, scheduled repayment or of scheduled sinking fund payment, any Subsidiary Guarantor that is subordinated to the Subsidiary Guaranties Subordinated Obligations (other than, in each case, than the purchase, repurchase or the other acquisition of Indebtedness Subordinated Obligations purchased in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in any each case due within one year of the date of acquisitionacquisition and other than any required or mandatory payments, purchases or acquisitions triggered by events which would trigger the prepayments of the Notes described under Sections 4.16 and 4.17 provided that such required or mandatory payments, purchases or acquisitions (x) are otherwise in accordance with the terms of this Indenture, (y) are made in accordance with the subordination provisions governing such Subordinated Obligations and (z) an offer is made to prepay the Notes in accordance with the terms of this Indenture, and if such offer is accepted, payments shall be made with respect to the Notes being repurchased prior to any payment with respect to such Subordinated Obligations); or (iv) make any Investment, Investment in any Affiliate of the Company other than a Permitted InvestmentRestricted Subsidiary or a Person which will become a Restricted Subsidiary as a result of any such Investment (any such dividend, in any Person (such payments distribution, purchase, redemption, repurchase, defeasance, other acquisition, retirement or any other actions described in clauses (i) through (iv) Investment being collectively herein referred to as a "RESTRICTED PAYMENTSRestricted Payment") if, if at the time of, and after giving effect to, the proposed Company or such Restricted Subsidiary makes such Restricted Payment: (A1) an Event of a Default shall have occurred and be continuing, continuing (Bor would result therefrom); or (2) except with respect to Investments in Restricted Subsidiaries and dividends on the Common Stock of any Subsidiary Guarantor paid to the Company or any Restricted Subsidiary, the Company could would not Incur at least be permitted to issue an additional $1.00 of Indebtedness under the first sentence of paragraph pursuant to clause (a) of under Section 4.03 or (C) the aggregate amount of all Restricted Payments (the amount, if other than in cash, to be determined in good faith by the Board of Directors, whose determination shall be conclusive and evidenced by a Board Resolution) made after the Closing Date (4.13 after giving pro forma effect to the proposed such Restricted Payment; or (3) shall the aggregate amount of such Restricted Payment and all other Restricted Payments since the date on which the Notes were originally issued would exceed the sum of of: (1A) 50% of the aggregate amount of the Adjusted Consolidated Net Income accrued during the period (treated as one accounting period) from the beginning of the fiscal quarter during which the Notes were originally issued to the end of the most recent fiscal quarter for which financial statements are available (or, if the Adjusted in case such Consolidated Net Income is shall be a lossdeficit, minus 100% of the amount of such loss) deficit); (determined by excluding income resulting from transfers of assets by the Company or a Restricted Subsidiary to an Unrestricted Subsidiary) accrued on a cumulative basis during the period (taken as one accounting period) beginning on the first day of the fiscal quarter immediately following the Closing Date and ending on the last day of the last fiscal quarter preceding the Transaction Date for which reports have been filed pursuant to Section 4.18 plus (2B) the aggregate amount of Designated Equity Net Cash Proceeds received by the Company after from the Closing Date, except issue or sale of its Capital Stock (other than Disqualified Stock) subsequent to the extent date on which the Notes were originally issued (other than an issuance or sale to a Subsidiary or an employee stock ownership plan or similar trust in the benefit of employees); (C) the aggregate Net Cash Proceeds received by the Company from the issue or sale of its Capital Stock (other than Disqualified Stock) to an employee stock ownership plan subsequent to the date on which the Notes were originally issued; provided, however, that if such employee stock ownership plan issues any Indebtedness, such aggregate amount shall be limited to an amount equal to any increase in the Consolidated Net Worth of the Company resulting from principal repayments made by such employee stock ownership plan with respect to Indebtedness issued by it to finance the purchase of such Capital Stock; (D) the amount by which Indebtedness of the Company is reduced on the Company's balance sheet upon the conversion or exchange (other than by a Subsidiary) subsequent to the date on which the Notes were originally issued of any Indebtedness of the Company convertible or exchangeable for Capital Stock (other than Disqualified Stock) of the Company (less the amount of Designated Equity Proceeds is used as a basis to Incur Indebtedness pursuant to clause any cash, or other property, distributed by the Company upon such conversion or exchange); and (i) or (viii) of paragraph (a) under Section 4.03, plus (3E) an amount equal to the sum of (i) the net reduction in Investments (other than reductions in Permitted Investments) in any Person Unrestricted Subsidiaries resulting from payments of interest on Indebtednessdividends, dividendsinterest, repayments of loans or advances, advances or Indebtedness or other transfers of assets, in each case to the Company or any Restricted Subsidiary or from Unrestricted Subsidiaries, and (ii) the Net Cash Proceeds from the sale of any such Investment portion (except, in each case, proportionate to the extent any Company's equity interest in such payment or proceeds are included Subsidiary) of the fair market value of the net assets of an Unrestricted Subsidiary at the time such Unrestricted Subsidiary is designated a Restricted Subsidiary (provided such Unrestricted Subsidiary is otherwise eligible to become a Restricted Subsidiary); provided, however, that the foregoing sum in the calculation of Adjusted Consolidated Net Income), or from redesignations of Unrestricted Subsidiaries as Restricted Subsidiaries clause (valued in each case as provided in the definition of "Investments"), E) shall not to exceed, in each casethe case of any Unrestricted Subsidiary, the amount of Investments previously made (and treated as a Restricted Payment) by the Company or any Restricted Subsidiary in such Person or Unrestricted Subsidiary.

Limitation on Restricted Payments. (a) The Company will (i) may not, and will may not permit any Restricted SubsidiarySubsidiary of the Company to, directly or indirectly, to (i) declare or pay any dividend or make any distribution on (including any payment in connection with any merger or with consolidation derived from assets of the Company or any Subsidiary) in respect to of its Capital Stock or to the holders thereof, excluding (other than (xa) any dividends or distributions by the Company payable solely in shares of its Capital Stock (other than Disqualified Redeemable Stock) or in options, warrants or other rights to acquire shares of such its Capital Stock (other than Redeemable Stock), and (yb) in the case of a Subsidiary, dividends or distributions payable to the Company or a Wholly Owned Subsidiary of the Company or pro rata dividends or distributions on Common distributions, (ii) may not, and may not permit any Subsidiary to, purchase, redeem, or otherwise acquire or retire for value (a) any Capital Stock of Restricted Subsidiaries held by minority stockholders, provided that such dividends do not in the aggregate exceed the minority stockholders' pro rata share of such Restricted Subsidiaries' net income from the first day of the fiscal quarter beginning immediately following the Closing Date) held by Persons other than the Company or any of its Restricted Subsidiaries, (ii) purchase, redeem, retire Subsidiary or otherwise acquire for value any shares of Capital Stock Related Person of the Company, Company or (b) any Subsidiary Guarantor or an Unrestricted Subsidiary (including options, warrants or other rights to acquire such shares of Capital Stock) held by Persons other than Stock of the Company and its or any Subsidiary or any Related Person of the Company or any securities convertible or exchangeable into shares of Capital Stock of the Company or any Subsidiary or any Related person of the Company, in each case except, in the case of Capital Stock of a Subsidiary, from the Company or a Wholly Owned SubsidiariesSubsidiary of the Company, and (iii) make may not, and may not permit any voluntary or optional principal paymentSubsidiary to, or voluntary or optional redemptionredeem, repurchase, defeasancedefease or otherwise acquire or retire for value prior to any scheduled maturity, repayment or other acquisition or retirement for value, of sinking fund payment Indebtedness of the Company that which is subordinated subordinate in right of payment to the Notes or Debentures (each of any Subsidiary Guarantor that is subordinated to the Subsidiary Guaranties (other than, in each case, the purchase, repurchase or the acquisition of Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in any case due within one year of the date of acquisition) or (iv) make any Investment, other than a Permitted Investment, in any Person (such payments or any other actions described in clauses (i) through (iviii) being collectively a "RESTRICTED PAYMENTSRestricted Payment") if, at the time of, and after giving effect to, the proposed Restricted Payment: (A1) an a Default or Event of Default shall have occurred and be continuingis continuing or would result from such Restricted Payment, or (B2) except with respect upon giving effect to Investments in such Restricted Subsidiaries and dividends on the Common Stock of any Subsidiary Guarantor paid to the Company or any Restricted SubsidiaryPayment, the Company could not Incur at least $1.00 of Indebtedness under the first sentence of paragraph (a) of Section 4.03 or (C) the aggregate amount of all Restricted Payments (the amountwhich term does not include any Permitted Distributions (as defined below)) from June 30, if other than in cash, to be determined in good faith by the Board of Directors, whose determination shall be conclusive and evidenced by a Board Resolution) made after the Closing Date (after giving pro forma effect to the proposed Restricted Payment) shall exceed 1996 exceeds the sum of of: (1a) 50% of the aggregate amount of the Adjusted Consolidated cumulative Net Income Cash Flow (or, if in the Adjusted Consolidated case Net Income is a lossCash Flow shall be negative, minus 100% less such deficit) of the amount of such loss) (determined by excluding income resulting from transfers of assets by the Company or a Restricted Subsidiary to an Unrestricted Subsidiary) accrued on a cumulative basis during the period (taken as one accounting period) beginning on the first day of the fiscal quarter immediately following the Closing Date and ending on since June 30, 1996 through the last day of the last full fiscal quarter ending immediately preceding the Transaction Date date of such Restricted Payment for which reports have been filed pursuant to Section 4.18 quarterly or annual financial statements are available (taken as a single accounting period); plus (2b) 100% of the aggregate amount of Designated Equity Proceeds net proceeds received by the Company after July 10, 1996, from contributions of capital or the Closing Date, except to the extent such amount of Designated Equity Proceeds is used as a basis to Incur Indebtedness pursuant to clause (i) or (viii) of paragraph (a) under Section 4.03, plus (3) an amount equal to the net reduction in Investments issuance and sale (other than reductions in Permitted Investmentsto a Subsidiary) in any Person resulting from payments of interest on IndebtednessCapital Stock (other than Redeemable Stock) of the Company, dividendsoptions, repayments of loans or advances, warrants or other transfers rights to acquire Capital Stock (other than Redeemable Stock) of assets, in each case the Company and Indebtedness of the Company that has been converted into or exchanged for Capital Stock (other than Redeemable Stock and other than by or from a Subsidiary) of the Company other than Investors Equity (as defined below). Prior to the Company or making of any Restricted Subsidiary Payment, the Company shall deliver to the Holder's a certificate of the President of the Company setting forth the computations by which the determination required by clause (2) above was made and stating that no Default or Event of Default has occurred and is continuing or will result from such Restricted Payment. Notwithstanding the foregoing, the Company shall be entitled to make the following Restricted Payments unless a payment Default described in Section 7.01(a) has occurred and is continuing or would result from the Net Cash Proceeds from the sale making of any such Investment (except, in each case, to the extent any such payment or proceeds are included in the calculation of Adjusted Consolidated Net Income), or from redesignations of Unrestricted Subsidiaries as Restricted Subsidiaries (valued in each case as provided in the definition of "Investments"), not to exceed, in each case, the amount of Investments previously made by the Company or any Restricted Subsidiary in such Person or Unrestricted Subsidiary.Payment:

Limitation on Restricted Payments. (a) The Company will not, and will not permit any of its Restricted SubsidiarySubsidiaries to, directly or indirectly, to : (i) declare or pay any dividend or make any other payment or distribution on account of the Company's or any Restricted Subsidiary's Equity Interests (including, without limitation, any payment in connection with respect to its Capital Stock (any merger or consolidation) other than (x) dividends or distributions (A) paid or payable solely in shares of its Capital Stock Equity Interests (other than Disqualified Stock) or in options, warrants or other rights to acquire shares of such Capital Stock and (y) pro rata dividends or distributions on Common Stock of Restricted Subsidiaries held by minority stockholders, provided that such dividends do not in the aggregate exceed the minority stockholders' pro rata share of such Restricted Subsidiaries' net income from the first day of the fiscal quarter beginning immediately following the Closing DateCompany or (B) held by Persons other than paid or payable to the Company or any Wholly Owned Restricted Subsidiary of its Restricted Subsidiaries, the Company; (ii) purchase, redeem, retire redeem or otherwise acquire or retire for value any shares Equity Interests of Capital Stock the Company or any Affiliate of the Company or any Restricted Subsidiary of the Company (other than any such Equity Interests owned by the Company or any Wholly Owned Restricted Subsidiary of the Company, any Subsidiary Guarantor or an Unrestricted Subsidiary (including options, warrants or other rights to acquire such shares of Capital Stock) held by Persons other than the Company and its Wholly Owned Subsidiaries, ); (iii) make any voluntary principal payment on, or optional principal purchase, redeem, defease or otherwise acquire or retire for value prior to the scheduled maturity, scheduled repayment or scheduled sinking fund payment, any Subordinated Indebtedness (except, if no Default or voluntary Event of Default is continuing or optional would result therefrom, any such payment, purchase, redemption, repurchase, defeasance, defeasance or other acquisition or retirement for value, value made out of Excess Proceeds available for general corporate purposes if (1) such payment or other action is required by the indenture or other agreement or instrument pursuant to which such Subordinated Indebtedness of was issued and (2) the Company that is subordinated in right of payment has purchased all Notes and other senior Indebtedness properly tendered pursuant to the Notes or of any Subsidiary Guarantor that is subordinated to the Subsidiary Guaranties (other than, in each case, the purchase, repurchase or the acquisition of Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in any case due within one year of the date of acquisition) an Asset Sale Offer required under Section 4.10; or (iv) make any Investment, other than a Permitted Investment, in any Person Restricted Investment (all such payments or any and other actions described set forth in clauses (i) through (iv) above being collectively referred to hereinafter as "RESTRICTED PAYMENTSRestricted Payments") if), unless, at the time of, of and after giving effect to, the proposed to such Restricted Payment: (A) an Event of Default shall have occurred and be continuing, (B) except with respect to Investments in Restricted Subsidiaries and dividends on the Common Stock of any Subsidiary Guarantor paid to the Company or any Restricted Subsidiary, the Company could not Incur at least $1.00 of Indebtedness under the first sentence of paragraph (a) of Section 4.03 or (C) the aggregate amount of all Restricted Payments (the amount, if other than in cash, to be determined in good faith by the Board of Directors, whose determination shall be conclusive and evidenced by a Board Resolution) made after the Closing Date (after giving pro forma effect to the proposed Restricted Payment) shall exceed the sum of (1) 50% of the aggregate amount of the Adjusted Consolidated Net Income (or, if the Adjusted Consolidated Net Income is a loss, minus 100% of the amount of such loss) (determined by excluding income resulting from transfers of assets by the Company or a Restricted Subsidiary to an Unrestricted Subsidiary) accrued on a cumulative basis during the period (taken as one accounting period) beginning on the first day of the fiscal quarter immediately following the Closing Date and ending on the last day of the last fiscal quarter preceding the Transaction Date for which reports have been filed pursuant to Section 4.18 plus (2) the aggregate amount of Designated Equity Proceeds received by the Company after the Closing Date, except to the extent such amount of Designated Equity Proceeds is used as a basis to Incur Indebtedness pursuant to clause (i) or (viii) of paragraph (a) under Section 4.03, plus (3) an amount equal to the net reduction in Investments (other than reductions in Permitted Investments) in any Person resulting from payments of interest on Indebtedness, dividends, repayments of loans or advances, or other transfers of assets, in each case to the Company or any Restricted Subsidiary or from the Net Cash Proceeds from the sale of any such Investment (except, in each case, to the extent any such payment or proceeds are included in the calculation of Adjusted Consolidated Net Income), or from redesignations of Unrestricted Subsidiaries as Restricted Subsidiaries (valued in each case as provided in the definition of "Investments"), not to exceed, in each case, the amount of Investments previously made by the Company or any Restricted Subsidiary in such Person or Unrestricted Subsidiary.:

Limitation on Restricted Payments. (a) The Company Borrower will not, and will not permit any of its Restricted SubsidiarySubsidiaries to, declare, pay or make, directly or indirectly, to any Restricted Payment, except: (ia) the Borrower may declare or and pay any dividend or make any distribution on or dividends with respect to its Capital Stock (other than (x) dividends or distributions Equity Interests payable solely in additional shares of its Capital Stock common stock; (other than Disqualified Stockb) or Interests; Restricted Subsidiaries may declare and pay dividends ratably with respect to their Equity (c) option plans the Borrower may make Restricted Payments pursuant to and in options, warrants accordance with stock or other rights to acquire shares of such Capital Stock and (y) pro rata dividends benefit plans for management, employees or distributions on Common Stock of Restricted Subsidiaries held by minority stockholders, provided that such dividends do not in the aggregate exceed the minority stockholders' pro rata share of such Restricted Subsidiaries' net income from the first day independent consultants of the fiscal quarter beginning immediately following the Closing Date) held by Persons other than the Company or any of Borrower and its Restricted Subsidiaries, ; (iid) purchase, redeem, retire or otherwise acquire the Borrower may make Restricted Payments to pay for value any shares of Capital Stock of the Company, any Subsidiary Guarantor or an Unrestricted Subsidiary (including options, warrants or other rights to acquire such shares of Capital Stock) held by Persons other than the Company and its Wholly Owned Subsidiaries, (iii) make any voluntary or optional principal payment, or voluntary or optional redemption, repurchase, defeasance, retirement or other acquisition or retirement for value, value of Indebtedness Equity Interests of the Company that is subordinated in right of payment to the Notes Borrower held by any future, present or of any Subsidiary Guarantor that is subordinated to the Subsidiary Guaranties (other thanformer employee, in each casedirector, the purchase, repurchase manager or the acquisition of Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in any case due within one year consultant of the date Borrower or any of acquisition) its Subsidiaries, or (iv) make their estates, descendants, family, spouse or former spouse pursuant to any Investment, other than a Permitted Investment, in any Person (such payments management equity plan or stock option or phantom equity plan or any other actions described in clauses (i) through (iv) being collectively "RESTRICTED PAYMENTS") ifmanagement or employee benefit plan or agreement, at the time ofor any stock subscription or shareholder agreement; provided that, and after giving effect to, the proposed Restricted Payment: (A) an Event of Default shall have occurred and be continuing, (B) except with respect to Investments non-discretionary purchases, the aggregate Restricted Payments made under this clause (d) (i) prior to the Waiver Finalization Date, do not exceed $300,000 and (ii) after the Waiver Finalization Date, do not exceed in Restricted Subsidiaries and dividends on any calendar year $5.0 million; (e) [reserved]; (f) the Common Stock Borrower may purchase, redeem or otherwise acquire Equity Interests issued by it with the proceeds received from the substantially concurrent issuance of its Equity Interests; (g) the Borrower may repurchase fractional shares of its Equity Interests arising out of stock dividends, splits or combinations, business combinations or conversions of convertible securities; (h) the Borrower or any Subsidiary Guarantor paid may receive or accept the return to the Company Borrower or any Restricted Subsidiary, Subsidiary of Equity Interests of the Company could not Incur at least $1.00 Borrower or any Subsidiary constituting a portion of Indebtedness under the first sentence purchase price consideration in settlement of paragraph indemnification claims; (a) of Section 4.03 or (Ci) the aggregate amount of all Restricted Payments Borrower or any Subsidiary may make payments or distributions to dissenting stockholders pursuant to applicable law; (j) the amountBorrower may repurchase its Equity Interests pursuant to its existing share repurchase program announced on February 4, if 2016 or any other than in cash, to be determined in good faith by the Board of Directors, whose determination shall be conclusive and evidenced by a Board Resolution) made after the Closing Date (after giving pro forma effect to the proposed Restricted Payment) shall exceed the sum of stock repurchase program or plan so long as (1) 50% no Default or Event of the aggregate amount of the Adjusted Consolidated Net Income Default has occurred and is continuing prior to making any such repurchase or would arise after giving effect (or, if the Adjusted Consolidated Net Income is a loss, minus 100% of the amount of such loss) (determined by excluding income resulting from transfers of assets by the Company or a Restricted Subsidiary to an Unrestricted Subsidiary) accrued including giving effect on a cumulative basis during the period (taken as one accounting periodpro forma basis) beginning on the first day of the fiscal quarter immediately following the Closing Date and ending on the last day of the last fiscal quarter preceding the Transaction Date for which reports have been filed pursuant to Section 4.18 plus thereto, (2) the aggregate amount of Designated Equity Proceeds received by the Company after the Closing Date, except to the extent such amount of Designated Equity Proceeds is used as a basis to Incur Indebtedness pursuant to clause (i) or (viii) of paragraph (a) under Section 4.03, plus repurchases does not exceed $70 million and (3) at the time of such repurchase, the Consolidated Total Debt to Consolidated EBITDA Ratio is not greater than 3.50:1.00; (k) the Borrower may make other Restricted Payments not otherwise permitted hereunder in an aggregate principal amount equal to the net reduction in Investments (other than reductions in Permitted Investments) in any Person resulting from payments of interest on Indebtedness, dividends, repayments of loans or advances, or other transfers of assets, in each case to the Company or any Restricted Subsidiary or from the Net Cash Proceeds from the sale of any such Investment (except, in each case, to the extent any such payment or proceeds are included in the calculation of Adjusted Consolidated Net Income), or from redesignations of Unrestricted Subsidiaries as Restricted Subsidiaries (valued in each case as provided in the definition of "Investments"), not to exceed, in each case, the amount of exceed $10.0 million minus (II) any Investments previously made by the Company or any Restricted Subsidiary in such Person or Unrestricted Subsidiary.pursuant to Section 10.6(z); -134-#89847286v15

Limitation on Restricted Payments. (a) The Company will not, and will not permit any Restricted SubsidiarySubsidiary to, directly or indirectly, to (i) declare or pay any dividend or make any distribution on or with respect to its Capital Stock (other than (x) dividends or distributions payable solely in shares of its Capital Stock (other than Disqualified Redeemable Stock) or in options, warrants or other rights to acquire shares of such Capital Stock and (y) pro rata dividends or distributions on Common Stock of Restricted Subsidiaries held by minority stockholders, provided that such dividends do not in the aggregate exceed the minority stockholders' pro rata share of such Restricted Subsidiaries' net income from the first day of the fiscal quarter beginning immediately following the Closing Date) held by Persons other than the Company or any of its Restricted Subsidiaries, (ii) purchase, redeem, retire or otherwise acquire for value any shares of Capital Stock of (A) the Company, any Subsidiary Guarantor Company or an Unrestricted Subsidiary (including options, warrants or other rights to acquire such shares of Capital Stock) held by Persons any Person, or (B) a Restricted Subsidiary (including options, warrants or other rights to acquire such shares of Capital Stock) held by any Affiliate of the Company (other than the Company and its a Wholly Owned SubsidiariesRestricted Subsidiary) or any holder (or any Affiliate of such holder) of 5% or more of the Capital Stock of the Company, (iii) make any voluntary or optional principal payment, or voluntary or optional redemption, repurchase, defeasance, or other acquisition or retirement for value, of Indebtedness of the Company that is subordinated in right of payment to the Notes or of any Subsidiary Guarantor that is subordinated to the Subsidiary Guaranties (other thanNotes, in each case, the purchase, repurchase or the acquisition of Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in any case due within one year of the date of acquisition) or (iv) make any Investment, other than a Permitted Investment, in any Person (such payments or any other actions described in clauses (i) through (iv) being collectively "RESTRICTED PAYMENTSRestricted Payments") if, at the time of, and after giving effect to, the proposed Restricted Payment: (A) an a Default or Event of Default shall have occurred and be continuing, (B) except with respect to Investments in Restricted Subsidiaries and dividends on the Common Stock of any Subsidiary Guarantor paid to the Company or any Restricted Subsidiary, the Company could not Incur at least $1.00 of Indebtedness under the first sentence of paragraph (a) of Section 4.03 4.03(a) or (C) the aggregate amount of expended for all Restricted Payments (the amount, if other than in cash, to be determined in good faith by the Board of Directors, whose determination shall be conclusive and evidenced by a Board Resolution) made after the Closing Date (after giving pro forma effect to the proposed Restricted Payment) shall exceed the sum of (1) 50% of the aggregate amount of the Adjusted Consolidated Net Income (or, if the Adjusted Consolidated Net Income is a loss, minus 100% of the amount of such loss) (determined by excluding income resulting from transfers of assets by the Company or a Restricted Subsidiary to an Unrestricted Subsidiary) accrued on a cumulative basis during the period (taken as one accounting period) beginning on the first day of the fiscal quarter immediately following the Closing Date and ending on the last day of the last fiscal quarter preceding the Transaction Date for which reports have been filed with the Commission or provided to the Trustee pursuant to Section 4.18 plus (2) the aggregate amount of Designated Equity Net Cash Proceeds received by the Company after the Closing Date from the issuance and sale permitted by this Indenture of its Capital Stock (other than Redeemable Stock) to a Person who is not a Subsidiary of the Company, including an issuance or sale permitted by this Indenture of Indebtedness of the Company for cash subsequent to the Closing Date, upon the conversion of such Indebtedness into Capital Stock (other than Redeemable Stock) of the Company, or from the issuance to a Person who is not a Subsidiary of the Company of any options, warrants or other rights to acquire Capital Stock of the Company (in each case, exclusive of any Redeemable Stock or any options, warrants or other rights that are redeemable at the option of the holder, or are required to be redeemed, prior to the Stated Maturity of the Notes), in each case except to the extent such amount of Designated Equity Net Cash Proceeds is are used as a basis to Incur Indebtedness pursuant to clause (i) or (viiixi) of the second paragraph (a) under of Section 4.03, 4.03 plus (3) an amount equal to the net reduction in Investments (other than reductions in Permitted Investments) in any Person resulting from payments of interest on Indebtedness, dividends, repayments of loans or advances, or other transfers of assets, in each case to the Company or any Restricted Subsidiary or from the Net Cash Proceeds from the sale of any such Investment (except, in each case, to the extent any such payment or proceeds are included in the calculation of Adjusted Consolidated Net Income), or from redesignations of Unrestricted Subsidiaries as Restricted Subsidiaries (valued in each case as provided in the definition of "Investments"), not to exceed, in each case, the amount of Investments previously made by the Company or any Restricted Subsidiary in such Person or Unrestricted Subsidiary.. The foregoing provision shall not be violated by reason of:

Limitation on Restricted Payments. (a) The Company will not, and will not permit any Restricted Subsidiary, directly or indirectly, to (i) declare or pay any dividend or make any distribution on or with respect to any class of its Capital Stock (other than (x) dividends or distributions payable solely in shares of its or such Restricted Subsidiary's Capital Stock (other than Disqualified Redeemable Stock) of the same class as such Capital Stock or in options, warrants or other rights to acquire shares of such Capital Stock and (y) pro rata dividends or distributions on Common Stock of Restricted Subsidiaries held by minority stockholders, provided that such dividends do not in the aggregate exceed the minority stockholders' pro rata share of such Restricted Subsidiaries' net income from the first day of the fiscal quarter beginning immediately following the Closing DateStock) held by Persons other than the Company or any of its Restricted Subsidiaries which are Wholly Owned Subsidiaries, (ii) purchase, redeem, retire or otherwise acquire for value any shares of Capital Stock of the Company, any Restricted Subsidiary Guarantor or an any Unrestricted Subsidiary (including options, warrants or other rights to acquire such any shares of such Capital Stock) held by Persons other than the Company and its or another Restricted Subsidiary that is a Wholly Owned SubsidiariesSubsidiary, (iii) make any voluntary or optional principal payment, or voluntary or optional redemption, repurchase, defeasance, defeasance or other acquisition or retirement for value, of Indebtedness of the Company that is expressly subordinated in right of payment to the Notes or of any Subsidiary Guarantor that is subordinated to the Subsidiary Guaranties (other thanSecurities, in each case, the purchase, repurchase or the acquisition of Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in any case due within one year of the date of acquisition) or (iv) make any Investment, Investment in any Affiliate (other than the Company or a Permitted Investment, in any Person Restricted Subsidiary that is a Wholly Owned Subsidiary) (such payments or any other actions described in clauses (i) through (iv) being collectively "RESTRICTED PAYMENTSRestricted Payments") if, unless at the time of, of and after giving effect to, to the proposed Restricted Payment: (Aa) an no Default or Event of Default shall have occurred and be continuing, (Bb) except with respect to Investments in Restricted Subsidiaries and dividends on the Common Stock of any Subsidiary Guarantor paid to the Company or any Restricted Subsidiary, the Company could not Incur at least $1.00 of Indebtedness under the first sentence of paragraph pursuant to clause (ai) of Section 4.03 or 3.03(a) and (Cc) the aggregate amount of expended for all Restricted Payments (the amountamount so expended, if other than in cash, to be determined in good faith by the Board of Directors, whose determination shall be conclusive Directors and evidenced by a Board Resolution) made after July 28, 1993 (together with any amounts paid after such date pursuant to clauses (i), (iv) and (vi) in the Closing Date (after giving pro forma effect to the proposed Restricted Paymentfollowing paragraph) shall not exceed the sum of (1) 50% of the aggregate amount of the Adjusted Consolidated Net Income (or, if the Adjusted Consolidated Net Income is a loss, minus 100% of the amount such amount) of such loss) (determined by excluding income resulting from transfers of assets by the Company or a Restricted Subsidiary to an Unrestricted Subsidiary) accrued on a cumulative basis during the period (taken as one accounting period) beginning on the first day of the fiscal quarter immediately following the Closing Date August 15, 1993 and ending on the last day of the last fiscal quarter preceding the Transaction Date for which reports have been filed pursuant to Section 4.18 plus (2) the aggregate amount net proceeds (including the fair market value of Designated Equity Proceeds noncash proceeds as determined 44 39 in good faith by the Board of Directors, whose determination shall be evidenced by a Board Resolution) received by the Company after from the Closing Dateissuance and sale of its Capital Stock (other than Redeemable Stock) to any Person other than a Subsidiary of the Company, except including an issuance or sale for cash or other property upon the conversion of any Indebtedness of the Company subsequent to July 28, 1993, or from the issuance of any options, warrants or other rights to acquire Capital Stock of the Company (in each case, excluding any Redeemable Stock or any options, warrants or other rights that are redeemable at the option of the holder, or are required to be redeemed, prior to the extent such amount Stated Maturity of Designated Equity Proceeds is used as a basis to Incur Indebtedness pursuant to clause (ithe principal of the Securities) or (viii) of paragraph (a) under Section 4.03, plus (3) an amount equal to the net reduction in Investments (other than reductions in Permitted Investments) in any Person Unrestricted Subsidiaries resulting from payments of principal of or interest on Indebtedness, dividends, repayments of loans or advances, dividends or other transfers of assets, in each case to the Company or any Restricted Subsidiary from any Unrestricted Subsidiary, or from the Net Cash Proceeds from the sale redesignation of any such Investment (except, in each case, to the extent any such payment or proceeds are included in the calculation of Adjusted Consolidated Net Income), or from redesignations of Unrestricted Subsidiaries Subsidiary as a Restricted Subsidiaries Subsidiary (valued in each case as provided in the definition of "Investments"), not to exceed, in each casethe case of any Unrestricted Subsidiary, the amount of Investments previously made by the Company or any Restricted Subsidiary in such Person or Unrestricted Subsidiary.Subsidiary plus (4) $10 million. The foregoing provision shall not be violated by reason of:

Limitation on Restricted Payments. (a) The Company will not, and will not permit any Restricted SubsidiarySubsidiary to, directly or indirectly, to (i) declare or pay any dividend or make any distribution on or with respect to its Capital Stock (other than (x) dividends or distributions payable solely in shares of its Capital Stock (other than Disqualified Stock) or in options, warrants or other rights to acquire shares of such Capital Stock and (y) pro rata dividends or distributions on Common Capital Stock of Restricted Subsidiaries held by minority stockholders, provided that such dividends do not in the aggregate exceed the minority stockholders' pro rata share to holders of such Restricted Subsidiaries' net income from the first day of the fiscal quarter beginning immediately following the Closing DateCapital Stock) held by Persons other than the Company or any of its Restricted Subsidiaries, (ii) purchase, call for redemption or redeem, retire or otherwise acquire for value any shares of Capital Stock of (A) the Company, Company or any Subsidiary Guarantor or an Unrestricted Subsidiary (including options, warrants or other rights to acquire such shares of Capital Stock) held by Persons any Person other than the Company and or any of its Wholly Owned SubsidiariesRestricted Subsidiaries or (B) a Restricted Subsidiary other than a Guarantor (including options, warrants or other rights to acquire such shares of Capital Stock) held by any Affiliate of the Company (other than a Restricted Subsidiary) or any holder of 5% or more of the Common Stock of the Company, (iii) make any voluntary or optional principal payment, or voluntary or optional redemption, repurchase, defeasance, or other voluntary acquisition or retirement for value, of Indebtedness of the Company that is subordinated in right of payment to the Notes or any Indebtedness of any Subsidiary a Guarantor that is subordinated in right of payment to the Subsidiary Guaranties (other than, in each case, the purchase, repurchase or the acquisition of Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in any case due within one year of the date of acquisition) Note Guarantee or (iv) make any Investment, other than a Permitted Investment, in any Person (such payments or any other actions described in in, but not excluded from, clauses (i) through (iv) above being collectively "RESTRICTED PAYMENTSRestricted Payments") if, at the time of, and after giving effect to, the proposed Restricted Payment: (A) an Event of Default shall have occurred and be continuing, (B) except with respect to Investments in Restricted Subsidiaries and dividends on the Common Stock of any Subsidiary Guarantor paid to the Company or any Restricted Subsidiary, the Company could not Incur at least $1.00 of Indebtedness under the first sentence of paragraph (a) of Section 4.03 or (C) the aggregate amount of all Restricted Payments (the amount, if other than in cash, to be determined in good faith by the Board of Directors, whose determination shall be conclusive and evidenced by a Board Resolution) made after the Closing Date (after giving pro forma effect to the proposed Restricted Payment) shall exceed the sum of (1) 50% of the aggregate amount of the Adjusted Consolidated Net Income (or, if the Adjusted Consolidated Net Income is a loss, minus 100% of the amount of such loss) (determined by excluding income resulting from transfers of assets by the Company or a Restricted Subsidiary to an Unrestricted Subsidiary) accrued on a cumulative basis during the period (taken as one accounting period) beginning on the first day of the fiscal quarter immediately following the Closing Date and ending on the last day of the last fiscal quarter preceding the Transaction Date for which reports have been filed pursuant to Section 4.18 plus (2) the aggregate amount of Designated Equity Proceeds received by the Company after the Closing Date, except to the extent such amount of Designated Equity Proceeds is used as a basis to Incur Indebtedness pursuant to clause (i) or (viii) of paragraph (a) under Section 4.03, plus (3) an amount equal to the net reduction in Investments (other than reductions in Permitted Investments) in any Person resulting from payments of interest on Indebtedness, dividends, repayments of loans or advances, or other transfers of assets, in each case to the Company or any Restricted Subsidiary or from the Net Cash Proceeds from the sale of any such Investment (except, in each case, to the extent any such payment or proceeds are included in the calculation of Adjusted Consolidated Net Income), or from redesignations of Unrestricted Subsidiaries as Restricted Subsidiaries (valued in each case as provided in the definition of "Investments"), not to exceed, in each case, the amount of Investments previously made by the Company or any Restricted Subsidiary in such Person or Unrestricted Subsidiary.:

Limitation on Restricted Payments. (a) The Company will not, and will not permit any Restricted SubsidiarySubsidiary to, directly or indirectly, to (i) declare or pay any dividend or make any distribution on or with respect to its Capital Stock (other than (x) dividends or distributions payable solely in shares of its or such Restricted Subsidiary's Capital Stock (other than Disqualified Redeemable Stock) of the same class held by such holders or in options, warrants or other rights to acquire such shares of such Capital Stock and (y) pro rata dividends or distributions on Common Stock of Restricted Subsidiaries held by minority stockholders, provided that such dividends do not in the aggregate exceed the minority stockholders' pro rata share of such Restricted Subsidiaries' net income from the first day of the fiscal quarter beginning immediately following the Closing DateStock) held by Persons other than the Company or any of its Wholly Owned Restricted Subsidiaries, (ii) purchase, redeem, retire or otherwise acquire for value any shares of Capital Stock of (A) the Company, any Subsidiary Guarantor Company or an Unrestricted Subsidiary (including options, warrants or other rights to acquire such shares of Capital Stock) held by Persons any Person or (B) a Restricted Subsidiary of the Company (including options, warrants or other rights to acquire such shares of Capital Stock) held by any Affiliate of the Company (other than the Company and its a Wholly Owned SubsidiariesRestricted Subsidiary) or any holder (or any Affiliate of such holder) of 5% or more of the Capital Stock of the Company, (iii) make any voluntary or optional principal payment, or voluntary or optional redemption, repurchase, defeasance, or other acquisition or retirement for value, of Indebtedness of the Company that is subordinated in right of payment to the Notes or of any Subsidiary Guarantor that is subordinated to the Subsidiary Guaranties (other than, in each case, the purchase, repurchase or the acquisition of Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in any case due within one year of the date of acquisition) or (iv) make any Investment, other than a Permitted Investment, in any Person (such payments or any other actions described in clauses (i) through (iv) being collectively "RESTRICTED PAYMENTSRestricted Payments") if, at the time of, and after giving effect to, the proposed Restricted Payment: (A) an a Default or Event of Default shall have occurred and be continuing, (B) except with respect to Investments in Restricted Subsidiaries and dividends on the Common Stock of any Subsidiary Guarantor paid to the Company or any Restricted Subsidiary, the Company could not Incur at least $1.00 of Indebtedness under the first sentence of paragraph (a) of Section 4.03 or (C) the aggregate amount of expended for all Restricted Payments (the amountamount so expended, if other than in cash, to be determined in good faith by the Board of Directors, whose determination shall be conclusive and evidenced by a Board Resolution) made after the Closing Date (after giving pro forma effect to the proposed Restricted Payment) date of this Indenture shall exceed the sum of (1) 50% of 49 42 the aggregate amount of the Adjusted Consolidated Net Income (or, if the Adjusted Consolidated Net Income is a loss, minus 100% of the amount of such loss) (determined by excluding income resulting from transfers of assets by the Company or a Restricted Subsidiary to an Unrestricted Subsidiary) accrued on a cumulative basis during the period (taken as one accounting period) beginning on the first day of the fiscal quarter immediately following the Closing Date and ending on the last day of the last fiscal quarter preceding the Transaction Date for which reports have been filed pursuant to Section 4.18 plus (2) the aggregate amount of Designated Equity Net Cash Proceeds received by the Company after the Closing DateDate from the issuance and sale permitted by this Indenture of its Capital Stock (other than Redeemable Stock) to a Person who is not a Subsidiary of the Company, except or from the issuance to a Person who is not a Subsidiary of the Company of any options, warrants or other rights to acquire Capital Stock of the Company (in each case, exclusive of any Redeemable Stock or any options, warrants or other rights that are redeemable at the option of the holder, or are required to be redeemed, prior to the extent such amount Stated Maturity of Designated Equity Proceeds is used as a basis to Incur Indebtedness pursuant to clause (ithe Notes) or (viii) of paragraph (a) under Section 4.03, plus (3) an amount equal to the net reduction in Investments (other than reductions in Permitted Investments) in any Person resulting from payments of interest on Indebtedness, dividends, repayments of loans or advances, or other transfers of assets, in each case to the Company or any Restricted Subsidiary or from the Net Cash Proceeds from the sale of any such Investment (except, in each case, to the extent any such payment or proceeds are is included in the calculation of Adjusted Consolidated Net Income), or from redesignations of Unrestricted Subsidiaries as Restricted Subsidiaries (valued in each case as provided in the definition of "Investments"), not to exceed, in each case, exceed the amount of Investments previously made by the Company or and any Restricted Subsidiary in such Person or Unrestricted Subsidiary.Person. The foregoing provision shall not be violated by reason of:

Limitation on Restricted Payments. (a) The Company will Borrower shall not, and will shall not permit any of its Restricted SubsidiarySubsidiaries to, directly or indirectly, to : (i) declare or pay any dividend or make any distribution on account of the Company Borrower’s or any of its Restricted Subsidiaries’ Equity Interests, including any payment made in connection with respect to its Capital Stock any merger or consolidation involving the Company Borrower (other than (x) dividends dividends, payments or distributions (A) payable solely in shares of its Capital Stock Equity Interests (other than Disqualified Stock) of the Company Borrower or to the Company Borrower and its Restricted Subsidiaries; or (B) by a Restricted Subsidiary so long as, in the case of any dividend or distribution payable on or in optionsrespect of any class or series of securities issued by a Restricted Subsidiary other than a Wholly Owned Restricted Subsidiary, warrants the Company Borrower or other rights to acquire shares of such Capital Stock and (y) pro rata dividends or distributions on Common Stock of a Restricted Subsidiaries held by minority stockholders, provided that such dividends do not in the aggregate exceed the minority stockholders' Subsidiary receives at least -116- its pro rata share of such Restricted Subsidiaries' net income from the first day dividend or distribution in accordance with its Equity Interests in such class or series of the fiscal quarter beginning immediately following the Closing Date) held by Persons other than the Company or any of its Restricted Subsidiaries, securities); (ii) purchase, redeem, retire purchase or otherwise acquire or retire for value any shares of Capital Stock Equity Interests of the Company, Company Borrower or any Subsidiary Guarantor other direct or an Unrestricted Subsidiary (including options, warrants or other rights to acquire such shares indirect parent of Capital Stock) held by Persons other than the Company and its Wholly Owned Subsidiaries, Borrower; (iii) make any voluntary principal payment on, or optional principal redeem, repurchase, defease or otherwise acquire or retire for value, in each case prior to any scheduled repayment or scheduled maturity, any Subordinated Indebtedness (other than the payment, or voluntary or optional redemption, repurchase, defeasance, or other acquisition or retirement for value, of Indebtedness of the Company that is subordinated in right of payment to the Notes or of any Subsidiary Guarantor that is subordinated to the Subsidiary Guaranties (other than, in each case, the purchase, repurchase or the acquisition of A) Subordinated Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in any each case due within one year of the date of acquisitionsuch payment, redemption, repurchase, defeasance, acquisition or retirement and (B) Indebtedness permitted under Section 6.1(b)(xi)); or (iv) make any Restricted Investment, other than a Permitted Investment, in any Person ; (all such payments or any and other actions described set forth in clauses (i) through (iv) above, other than any of the exceptions thereto, being collectively "RESTRICTED PAYMENTS") ifreferred to as “Restricted Payments”), unless, at the time of, and after giving effect to, the proposed of such Restricted Payment: (A1) an no Default or Event of Default shall have occurred and be continuingcontinuing or would occur as a consequence thereof; (2) in the case of Restricted Payments described in Sections 6.2(a)(i), (Bii) except with respect and (iii) above, immediately after giving effect to Investments in Restricted Subsidiaries and dividends such transaction on the Common Stock of any Subsidiary Guarantor paid to the Company or any Restricted Subsidiarya pro forma basis, the Company Borrower could not Incur at least $1.00 of additional Indebtedness under the first sentence of paragraph Section 6.1(a); and (a3) of Section 4.03 or (C) such Restricted Payment, together with the aggregate amount of all other Restricted Payments (the amount, if other than in cash, to be determined in good faith made by the Board of Directors, whose determination shall be conclusive Company Borrower and evidenced by a Board Resolution) made its Restricted Subsidiaries after the Closing Date (after giving pro forma effect including Restricted Payments permitted by clauses (b)(i), (b)(ii) (with respect to the proposed payment of dividends on Refunding Capital Stock pursuant to clause (B) thereof only), (b)(vi)(C) and (b)(xvi) of this Section 6.2, but excluding all other Restricted PaymentPayments permitted by clause (b) shall exceed of this Section 6.2), is less than the sum of of, without duplication, (1A) 50% of the aggregate amount of the Adjusted Consolidated Net Income (or, if the Adjusted Consolidated Net Income is a loss, minus 100% of the amount of such loss) (determined by excluding income resulting from transfers of assets by the Company or a Restricted Subsidiary to an Unrestricted Subsidiary) accrued on a cumulative basis during Borrower for the period (taken as one accounting period) beginning on from June 30, 2014 to the first day end of the Company Borrower’s most recently ended fiscal quarter immediately following for which internal financial statements are available at the time of such Restricted Payment (or, in the case such Consolidated Net Income for such period is a deficit, minus 100% of such deficit), plus (B) 100% of the aggregate net proceeds, including cash and the Fair Market Value of assets other than cash, received by the Company Borrower after the Closing Date and ending on from the last day issue or sale of Equity Interests of the last fiscal quarter preceding Company Borrower or any direct or indirect parent of the Transaction Date for which reports have been filed pursuant Company Borrower (excluding (without duplication) Refunding Capital Stock (as defined below), Designated Preferred Stock, Cash Contribution Amount, Excluded Contributions and Disqualified Stock), including Equity Interests issued upon conversion of Indebtedness or upon exercise of warrants or options (other than an issuance or -117- sale to Section 4.18 a Restricted Subsidiary of the Company Borrower or an employee stock ownership plan or trust established by the Company Borrower or any of its Subsidiaries), plus (2C) 100% of the aggregate amount of contributions to the capital of the Company Borrower received in cash and the Fair Market Value of property other than cash after the Closing Date (other than Excluded Contributions, Refunding Capital Stock, Designated Preferred Stock and Disqualified Stock and the Cash Contribution Amount), plus (D) the principal amount of any Indebtedness, or the liquidation preference or maximum fixed repurchase price, as the case may be, of any Disqualified Stock, of the Company Borrower or any Restricted Subsidiary thereof issued after the Closing Date (other than Indebtedness or Disqualified Stock issued to the Company Borrower or an employee stock ownership plan or trust established by the Company Borrower or any Restricted Subsidiary (other than to the extent such employee stock ownership plan or trust has been funded by the Company Borrower or any Restricted Subsidiary) that has been converted into or exchanged for Equity Proceeds Interests in the Company Borrower or any direct or indirect parent of the Company Borrower (other than Disqualified Stock), plus (E) 100% of the aggregate amount received by the Company Borrower or any Restricted Subsidiary in cash and the Fair Market Value marketable securities or other of property other than cash received by the Company Borrower or any Restricted Subsidiary from: (I) the sale or other disposition (other than to the Company Borrower or a Restricted Subsidiary) of Restricted Investments made by the Company Borrower and its Restricted Subsidiaries and from repurchases and redemptions of such Restricted Investments from the Company Borrower and its Restricted Subsidiaries by any Person (other than the Company Borrower or any of its Subsidiaries) and from repayments of loans or advances which constituted Restricted Investments (other than in each case to the extent that the Restricted Investment was made pursuant to clauses (b)(vii) or (b)(x) of this Section 6.2), (II) the sale (other than to the Company Borrower or a Restricted Subsidiary of the Company Borrower) of the Capital Stock of an Unrestricted Subsidiary, or (III) any distribution or dividend from an Unrestricted Subsidiary (to the extent such distribution or dividend is not already included in the calculation of Consolidated Net Income); plus (F) in the event any Unrestricted Subsidiary of the Company Borrower has been redesignated as a Restricted Subsidiary or has been merged or consolidated with or into, or transfers or conveys its assets to, or is liquidated into, the Company Borrower or a Restricted Subsidiary of the Company Borrower, in each case after the Closing Date, except to the extent such amount of Designated Equity Proceeds is used Fair Market Value (as a basis to Incur Indebtedness pursuant to clause (i) or (viii) of paragraph (a) under Section 4.03, plus (3) an amount equal to the net reduction determined in Investments (other than reductions in Permitted Investments) in any Person resulting from payments of interest on Indebtedness, dividends, repayments of loans or advances, or other transfers of assets, in each case to the Company or any Restricted Subsidiary or from the Net Cash Proceeds from the sale of any such Investment (except, in each case, to the extent any such payment or proceeds are included in the calculation of Adjusted Consolidated Net Income), or from redesignations of Unrestricted Subsidiaries as Restricted Subsidiaries (valued in each case as provided in the definition of "Investments"), not to exceed, in each case, the amount of Investments previously made by the Company or any Restricted Subsidiary in such Person or Unrestricted Subsidiary.-118-

Limitation on Restricted Payments. (a) The Company will RAS shall not, and will shall not permit any of its Restricted SubsidiarySubsidiaries, directly or indirectly, to (i) declare or pay any dividend or make any distribution on or with in respect to of its Capital Stock (other than including any payment in connection with any merger or consolidation involving RAS or any of its Restricted Subsidiaries) except (xA) dividends or distributions payable solely in shares of its Capital Stock (other than Disqualified Stock) or in options, warrants or other rights to acquire shares of purchase such Capital Stock and (yB) pro rata dividends or distributions on Common Stock payable to RAS or a Restricted Subsidiary of Restricted Subsidiaries held by minority stockholders, provided that such dividends do not RAS which holds any equity interest in the aggregate exceed paying Restricted Subsidiary (and if the minority stockholders' Restricted Subsidiary paying the dividend or making the distribution is not a Wholly-Owned Subsidiary, to its other holders of Capital Stock on a pro rata share of such Restricted Subsidiaries' net income from the first day of the fiscal quarter beginning immediately following the Closing Date) held by Persons other than the Company or any of its Restricted Subsidiariesbasis), (ii) purchase, redeem, retire or otherwise acquire for value any shares of Capital Stock of the Company, any Subsidiary Guarantor or an Unrestricted Subsidiary (including options, warrants or other rights to acquire such shares of Capital Stock) RAS held by Persons other than the Company and a Wholly-Owned Subsidiary of RAS or any Capital Stock of a Restricted Subsidiary of RAS held by any Affiliate of RAS, other than a Wholly-Owned Subsidiary (in either case, other than in exchange for its Wholly Owned SubsidiariesCapital Stock (other than Disqualified Stock)), (iii) purchase, repurchase, redeem, defease or otherwise acquire or retire for value, prior to scheduled maturity, scheduled repayment or scheduled sinking fund payment, any Subordinated Obligations or (iv) make any voluntary or optional principal paymentInvestment (other than a Permitted Investment) in any Person (any such dividend, or voluntary or optional distribution, purchase, redemption, repurchase, defeasance, other acquisition, retirement or other acquisition or retirement for value, of Indebtedness of the Company that is subordinated in right of payment to the Notes or of any Subsidiary Guarantor that is subordinated to the Subsidiary Guaranties (other than, in each case, the purchase, repurchase or the acquisition of Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in any case due within one year of the date of acquisition) or (iv) make any Investment, other than a Permitted Investment, in any Person (such payments or any other actions Investment as described in preceding clauses (i) through (iv) being collectively referred to as a "RESTRICTED PAYMENTSRestricted Payment") if, ); if at the time of, and after giving effect to, the proposed Partnership or such Restricted Subsidiary makes such Restricted Payment: (A1) an Event of a Default shall have occurred and be continuing, continuing (Bor would result therefrom); or (2) except with respect RAS is not able to Investments in Restricted Subsidiaries and dividends on the Common Stock of any Subsidiary Guarantor paid to the Company or any Restricted Subsidiary, the Company could not Incur at least incur an additional $1.00 of Indebtedness under the first sentence of pursuant to paragraph (a) of under Section 4.03 4.09; or (C3) the aggregate amount of such Restricted Payment and all other Restricted Payments (the amount, if other than in cash, to be determined in good faith by the Board of Directors, whose determination shall be conclusive and evidenced by a Board Resolution) declared or made after the Closing Date (after giving pro forma effect subsequent to the proposed Restricted Payment) shall Issue Date would exceed the sum of (1A) 50% of the aggregate amount of the Adjusted Consolidated Net Income (or, if the Adjusted Consolidated Net Income is a loss, minus 100% of the amount of such loss) (determined by excluding income resulting from transfers of assets by the Company or a Restricted Subsidiary to an Unrestricted Subsidiary) accrued on a cumulative basis during the period (taken treated as one accounting period) beginning on from the first day of the fiscal quarter immediately following beginning on or after the Closing Issue Date and ending on to the last day end of the last most recent fiscal quarter preceding ending prior to the Transaction Date for date of such Restricted Payment as to which reports have been filed pursuant financial results are available (but in no event ending more than 135 days prior to Section 4.18 plus the date of such Restricted Payment) (2or, in case such Consolidated Net Income shall be a deficit, minus 100% of such deficit); (B) the aggregate amount of Designated Equity Proceeds net proceeds received by RAS from the Company after the Closing Date, except to the extent such amount issue or sale of Designated Equity Proceeds is used as a basis to Incur Indebtedness pursuant to clause (i) or (viii) of paragraph (a) under Section 4.03, plus (3) an amount equal to the net reduction in Investments its Capital Stock (other than reductions in Permitted InvestmentsDisqualified Stock) in any Person resulting from payments of interest on Indebtedness, dividends, repayments of loans or advances, or other transfers of assets, in each case capital contributions subsequent to the Company Issue Date (other than net proceeds received from an issuance or sale of such Capital Stock to (x) a Subsidiary of RAS, (y) an employee stock ownership plan or similar trust or (z) management employees of RAS or any Restricted Subsidiary or from the Net Cash Proceeds from the sale of any such Investment RAS (except, in each case, other than sales of Capital Stock (other than Disqualified Stock) to the extent any such payment or proceeds are included in the calculation management employees of Adjusted Consolidated Net IncomeRAS pursuant to bona fide employee stock option plans of RAS), or from redesignations of Unrestricted Subsidiaries as Restricted Subsidiaries (valued in each case as provided in the definition of "Investments"), not to exceed, in each case, the amount of Investments previously made by the Company or any Restricted Subsidiary in such Person or Unrestricted Subsidiary.;

Limitation on Restricted Payments. (a) The Company will shall not, and will shall not permit any Restricted Subsidiary, directly or indirectly, to (i) declare or pay any dividend or make any distribution on or with in respect to of its Capital Stock (other than including any payment to its stockholders in connection with any merger or consolidation involving the Company) except (xA) dividends or distributions payable solely in shares of its Capital Stock (other than Disqualified Stock) or in options, warrants or other rights to acquire shares of such Capital Stock and (yB) pro rata dividends or distributions on Common Stock of Restricted Subsidiaries held by minority stockholders, provided that such dividends do not in the aggregate exceed the minority stockholders' pro rata share of such Restricted Subsidiaries' net income from the first day of the fiscal quarter beginning immediately following the Closing Date) held by Persons other than payable to the Company or any of Restricted Subsidiary (and, if such Restricted Subsidiary is not a Wholly Owned Subsidiary, to its Restricted Subsidiariesother shareholders on no more than a pro rata basis, measured by value), (ii) purchase, redeem, retire or otherwise acquire for value any shares of Capital Stock of 84 the Company, Company or any Restricted Subsidiary Guarantor or an Unrestricted Subsidiary (including options, warrants or other rights to acquire such shares of Capital Stock) held by Persons other than the Company and its Wholly Owned Subsidiariesor another Restricted Subsidiary), (iii) make any voluntary or optional principal payment, or voluntary or optional redemptionpurchase, repurchase, defeasanceredeem, defease or otherwise acquire or retire for value, prior to scheduled maturity, scheduled repayment or scheduled sinking fund payment, any Subordinated Obligations (other than the purchase, repurchase, redemption or other acquisition or retirement for value, of Indebtedness of the Company that is subordinated in right of payment to the Notes or of any Subsidiary Guarantor that is subordinated to the Subsidiary Guaranties (other than, in each case, the purchase, repurchase or the acquisition of Indebtedness Subordinated Obligations in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in any each case due within one year of the date of acquisition) or (iv) make any Investment, Investment (other than a Permitted Investment, ) in any Person (any such payments dividend, distribution, purchase, redemption, repurchase, defeasance, other acquisition, retirement or any other actions described in clauses (i) through (iv) Investment being collectively herein referred to as a "RESTRICTED PAYMENTSRestricted Payment") if, if at the time of, and after giving effect to, the proposed Company or such Restricted Subsidiary makes such Restricted Payment: (A) an Event of a Default shall have occurred and be continuing, continuing (or would result therefrom); (B) except with respect to Investments in Restricted Subsidiaries and dividends on the Common Stock of any Subsidiary Guarantor paid to the Company or any Restricted Subsidiary, the Company could not Incur incur at least an additional $1.00 of Indebtedness under the first sentence of paragraph (a) of the covenant contained in Section 4.03 1010; or (C) the aggregate amount of such Restricted Payment and all other Restricted Payments (the amountamount so expended, if other than in cash, to be determined in good faith by the Company's Board of Directors, whose determination shall be conclusive and evidenced by a resolution of the Company's Board Resolutionof Directors) declared or made after the Closing Date (after giving pro forma effect subsequent to the proposed Restricted Payment) shall date of this Indenture would exceed the sum of of: (1) 50% of the aggregate amount of the Adjusted Consolidated Net Income accrued during the period (treated as one accounting period) from the end of the most recent fiscal quarter ending prior to the Issue Date to the end of the most recent fiscal quarter ending prior to the date of such Restricted Payment for which consolidated financial statements of the Company are available (or, if the Adjusted in case such Consolidated Net Income is shall be a lossdeficit, minus 100% of the amount of such loss) (determined by excluding income resulting from transfers of assets by the Company or a Restricted Subsidiary to an Unrestricted Subsidiary) accrued on a cumulative basis during the period (taken as one accounting period) beginning on the first day of the fiscal quarter immediately following the Closing Date and ending on the last day of the last fiscal quarter preceding the Transaction Date for which reports have been filed pursuant to Section 4.18 plus deficit); (2) the aggregate amount of Designated Equity Net Cash Proceeds received by the Company after from the Closing Dateissuance or sale of its Capital Stock (other than Disqualified Stock) plus the principal amount of convertible securities which have been converted into or exchanged for Capital Stock (other than Disqualified Stock), except in each case, subsequent to the Issue Date (other than an issuance or sale to a Restricted Subsidiary of the Company); provided that in the event such issuance or sale is to an employee stock ownership plan or other trust established by the Company or any of its Subsidiaries for the benefit of their employees, to the extent the purchase by such plan or trust is financed by Indebtedness of such plan or trust and for which the Company is liable as Guarantor or otherwise, such aggregate amount of Designated Equity Net Cash Proceeds is used as a basis shall be limited to Incur Indebtedness pursuant the aggregate amount of principal payments made by such plan or trust with respect to clause (i) or (viii) of paragraph (a) under Section 4.03, plus such Indebtedness); and (3) in the case of the disposition or repayment of any Investment constituting a Restricted Payment (without duplication of any amount deducted in calculating the amount of Investments at any time outstanding included in the amount of Restricted Payments), an amount equal to the net reduction in Investments lesser of (other than reductions in Permitted Investmentsx) in any Person resulting from payments the return of interest on Indebtedness, dividends, repayments capital or similar repayment with respect to such Investment and (y) the initial amount of loans or advances, or other transfers of assetssuch Investment, in each case to the Company or any Restricted Subsidiary or from the Net Cash Proceeds from the sale of any such Investment (except, in each either case, to less the extent any cost of the disposition of such payment or proceeds are included in the calculation of Adjusted Consolidated Net Income), or from redesignations of Unrestricted Subsidiaries as Restricted Subsidiaries (valued in each case as provided in the definition of "Investments"), not to exceed, in each case, the amount of Investments previously made by the Company or any Restricted Subsidiary in such Person or Unrestricted SubsidiaryInvestment.