Common use of Limitation on Restricted Payments Clause in Contracts

Limitation on Restricted Payments. The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly: (i) declare or pay any dividend or make any other payment or distribution on account of the Company’s or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company or its Restricted Subsidiaries) or to the direct or indirect holders of the Company’s or any of its Restricted Subsidiaries’ Equity Interests in their capacity as such (other than dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company or dividends, payments or distributions payable to the Company or a Guarantor, or payable by a Restricted Subsidiary that is not a Guarantor to any Restricted Subsidiary); (ii) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or its Restricted Subsidiaries (other than any such Equity Interests owned by the Company or any Guarantor); (iii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness of the Company or any of its Restricted Subsidiaries that is contractually subordinated to the Notes or any Note Guarantee (excluding any intercompany Indebtedness between or among the Company and any of the Guarantors), except a payment of interest or principal at the Stated Maturity thereof (for purposes of clarity, the Existing Notes will not be deemed to be contractually subordinated to the Notes); or (iv) make any Restricted Investment (all such payments and other actions set forth in clauses (i) through (iv) above being collectively referred to as “Restricted Payments”), unless, at the time of and after giving effect to such Restricted Payment:

Limitation on Restricted Payments. (a) The Company will not, and will not permit any of its Restricted Subsidiaries toSubsidiary, 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 with respect to its Restricted Subsidiaries’ Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company or its Restricted Subsidiaries) or to the direct or indirect holders of the Company’s or any of its Restricted Subsidiaries’ Equity Interests in their capacity as such Capital Stock (other than (x) dividends or distributions payable solely in Equity Interests 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 Company or dividends, payments or distributions payable to fiscal quarter beginning immediately following the Company or a Guarantor, or payable Closing Date) held by a Restricted Subsidiary that is not a Guarantor to any Restricted Subsidiary); (ii) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or its Restricted Subsidiaries (Persons other than any such Equity Interests owned by the Company or any Guarantor); (iii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness of the Company or any of its Restricted Subsidiaries 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 contractually subordinated in right of payment to the Notes or of any Note Guarantee (excluding any intercompany Indebtedness between or among the Company and any of the Guarantors), except a payment of interest or principal at the Stated Maturity thereof (for purposes of clarity, the Existing Notes will not be deemed to be contractually Subsidiary Guarantor that is subordinated to the Notes); 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 Restricted Investment Investment, other than a Permitted Investment, in any Person (all such payments and or any other actions set forth described in clauses (i) through (iv) above being collectively referred to as “Restricted Payments”), unless"RESTRICTED PAYMENTS") if, at the time of of, and after giving effect to such 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. The Company will Borrower shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly: indirectly (ix) declare or pay any dividend or make any other payment or distribution on account of the CompanyBorrower’s or any of its Restricted Subsidiaries’ Subsidiary’s Equity Interests (includingInterests, without limitation, including any payment dividend or distribution payable in connection with any merger merger, amalgamation or consolidation involving the Company or its Restricted Subsidiaries) or to the direct or indirect holders of the Company’s or any of its Restricted Subsidiaries’ Equity Interests in their capacity as such (consolidation, other than (A) dividends or distributions by the Borrower payable in Equity Interests (other than Disqualified Stock) of the Company Borrower or dividends, payments (B) dividends or distributions payable to the Company or a Guarantor, or payable by a Restricted Subsidiary that is not a Guarantor to any Restricted Subsidiary); (ii) purchase, redeem or otherwise acquire or retire for value (including, without limitationso long as, in connection the 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 Borrower or a Restricted Subsidiary receives at least its pro rata share of such dividend or distribution in accordance with any merger or consolidation involving the Company) any its Equity Interests in such class or series of the Company or its Restricted Subsidiaries securities, (other than any such Equity Interests owned by the Company or any Guarantor); (iiiy) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness Equity Interests of the Company Borrower or any of its Restricted Subsidiaries that is contractually subordinated to the Notes direct or any Note Guarantee (excluding any intercompany Indebtedness between or among the Company and any indirect parent of the Guarantors)Borrower, except a payment of interest including in connection with any merger or principal at the Stated Maturity thereof (for purposes of clarityconsolidation, the Existing Notes will not be deemed to be contractually subordinated to the Notes); or (ivz) make any Restricted Investment principal payment on, or redeem, repurchase, defease or otherwise acquire or retire for value in each case, prior to any scheduled repayment, sinking fund payment or maturity, any Junior Indebtedness (other than the purchase, repurchase or other acquisition of Junior Indebtedness purchased in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case due within one year of the date of purchase, repurchase or acquisition) (all such payments and other actions set forth in clauses (ix) through (ivz) above being collectively referred to as “Restricted Payments”), unless, at the time of and after giving effect to such Restricted Paymentother than:

Limitation on Restricted Payments. (a) The Company will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly: , (i) declare or pay any dividend or make any other payment or distribution on account of the Company’s or any of with to its Restricted Subsidiaries’ Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company or its Restricted Subsidiaries) or to the direct or indirect holders of the Company’s or any of its Restricted Subsidiaries’ Equity Interests in their capacity as such Capital Stock (other than (x) dividends any respect or distributions payable solely in Equity Interests shares of its Capital Stock (other than Disqualified Stock) or in options, warrants or other rights to acquire shares of the Company or dividends, payments such Capital Stock and (y) pro rata dividends or distributions payable to the Company or a Guarantor, or payable by a Restricted Subsidiary that is not a Guarantor to any Restricted Subsidiary); (ii) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests on Common Stock of the Company or its Restricted Subsidiaries (held by minority stockholders) held by Persons other than any such Equity Interests owned by the Company or any Guarantor); (iii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness of the Company or any of its Restricted Subsidiaries Subsidiaries, (ii) purchase, redeem, retire or otherwise acquire for value any shares of Capital Stock of (A) the Company or an Unrestricted Subsidiary (including options, warrants or other rights to acquire such shares of Capital Stock) held by 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 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 contractually subordinated in right of to payment the Notes or any Note Guarantee (excluding any intercompany Indebtedness between or among the Company and any of the Guarantors), except a payment of interest or principal at the Stated Maturity thereof (for purposes of clarity, the Existing Notes will not be deemed to be contractually subordinated to the Notes); or (iv) make any Restricted Investment Investment, other than a Permitted Investment, in any Person (all such payments and or any other actions set forth described in clauses (i) through (iv) above being collectively referred to as “"Restricted Payments”), unless") if, at the time of of, and after giving effect to, the proposed Restricted Payment: (A) a Default or Event of Default shall have occurred and be continuing, (B) except in the case of an Investment, the Company could not Incur at least $1.00 of Indebtedness under the first paragraph 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 Effective Date 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 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 Net Cash Proceeds received by the Company after the Effective 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, including an issuance or sale permitted by this Indenture of Indebtedness of the Company for cash subsequent to the Effective 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) 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 Subsidiary 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 Restricted Payment: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 of its Restricted Subsidiaries toSubsidiary, 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 in respect of its Restricted Subsidiaries’ Equity Interests Capital Stock (including, without limitation, including any such payment in connection with any merger or consolidation involving to which the Company or its Restricted SubsidiariesBorrower is a party) or to the direct or indirect holders of the Company’s or any of its Restricted Subsidiaries’ Equity Interests in their capacity as such except (other than x) dividends or distributions payable solely in Equity Interests its Capital Stock (other than Disqualified Stock) of the Company or dividends, payments and (y) dividends or distributions payable to the Company Borrower or a Guarantor, or payable by a any Restricted Subsidiary that is not (and, in the case of any such Restricted Subsidiary making such dividend or distribution, to other holders of its Capital Stock on no more than a Guarantor to any Restricted Subsidiarypro rata basis, measured by value); , (ii) purchase, redeem redeem, retire or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests Capital Stock of the Company Borrower held by Persons other than the Borrower or its a Restricted Subsidiaries Subsidiary (other than any acquisition of Capital Stock deemed to occur upon the exercise of options if such Equity Interests owned by Capital Stock represents a portion of the Company or any Guarantorexercise price thereof); , (iii) make any payment on or with respect tovoluntarily purchase, or purchaserepurchase, 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 any Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case due within one year of the Company date of such purchase, repurchase, redemption, defeasance or any of its Restricted Subsidiaries that is contractually subordinated to the Notes other acquisition or any Note Guarantee (excluding any intercompany Indebtedness between or among the Company and any of the Guarantorsretirement), except a payment of interest or principal at the Stated Maturity thereof (for purposes of clarity, the Existing Notes will not be deemed to be contractually subordinated to the Notes); or (iv) make any Restricted Investment (all other than a Permitted Investment) in any Person (any such payments and dividend, distribution, purchase, repurchase, redemption, defeasance, other actions set forth in clauses (i) through (iv) above acquisition or retirement or Investment being collectively herein referred to as a “Restricted PaymentsPayment”), unless, if at the time of the Borrower or such Restricted Subsidiary makes such Restricted Payment and after giving effect to such Restricted Paymentthereto:

Limitation on Restricted Payments. The Company will shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly: (i) declare or pay any dividend dividend, or make any other payment distribution, of any kind or distribution on account character (whether in cash, property or securities) in respect of the Company’s or any Capital Stock of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company or its any Restricted Subsidiaries) Subsidiary or to the direct or indirect holders of the Company’s or any of its Restricted Subsidiaries’ Equity Interests Holders thereof in their capacity as such such, excluding: (x) any dividends or distributions to the extent payable in shares of the Capital Stock of the Company (other than Redeemable Interests) or in options, warrants or other rights to acquire the Capital Stock of the Company (other than Redeemable Interests), (y) dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company or dividends, payments or distributions payable by a Restricted Subsidiary to the Company or a Guarantoranother Wholly-Owned Restricted Subsidiary, or payable and (z) the payment of pro rata dividends by a Restricted Subsidiary that is not a Guarantor to any Holders of both minority and majority interests in such Restricted Subsidiary); (ii) purchase, redeem or otherwise acquire or retire for value value: (including, without limitation, in connection with any merger or consolidation involving the Companya) any Equity Interests 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), the purchase, redemption, acquisition or retirement by any Restricted Subsidiary of any of its Restricted Subsidiaries (Capital Stock, other than any ownership interests or options, warrants or rights to purchase such Equity Interests Capital Stock or other ownership interests, in each case, owned by the Company or any Guarantora Wholly-Owned Restricted Subsidiary); (iii) make any payment on Investment that is not a Permitted Investment; or with respect to, or purchase, (iv) redeem, defease defease, repurchase, retire or otherwise acquire or retire for value prior to any Indebtedness scheduled maturity, repayment or sinking fund payment, Debt of the Company or any of its Restricted Subsidiaries that is contractually subordinated subordinate in right of payment to the Notes or any Note Guarantee (excluding any intercompany Indebtedness between or among the Company and any each of the Guarantors), except a payment of interest or principal at the Stated Maturity thereof (for purposes of clarity, the Existing Notes will not be deemed to be contractually subordinated to the Notes); or (iv) make any Restricted Investment (all such payments and other actions set forth transactions described in clauses (i) through (iv) above being collectively referred to as a “Restricted PaymentsPayment”), unless, at the time of and after giving effect to such Restricted Paymentif:

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 Subsidiary of its Restricted Subsidiaries either the Company or the Parent Guarantor to, directly or indirectly: , (i) declare or pay any dividend or make any other payment or distribution on account or with respect to its Capital Stock (other than (x) dividends or distributions payable solely in shares of the Company’s or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company or its Restricted Subsidiaries) or to the direct or indirect holders of the CompanyParent Guarantor’s or any of its Restricted Subsidiaries’ Equity Interests in their capacity as such (other than dividends or distributions payable in Equity Interests Capital Stock (other than Disqualified Stock) or in options, warrants or other rights to acquire shares of the Company or dividends, payments such Capital Stock (other than Disqualified Stock) and (y) pro rata dividends or distributions payable to on Common Stock of Restricted Subsidiaries held by minority stockholders) held by Persons other than the Company Company, the Parent Guarantor or a Guarantor, or payable by a Restricted Subsidiary that is not a Guarantor to any Restricted Subsidiary); , (ii) purchase, redeem redeem, retire or otherwise acquire or retire for value any shares of Capital Stock of (includingx) the Parent Guarantor or an Unrestricted Subsidiary (including options, without limitationwarrants or other rights to acquire such shares of Capital Stock) held by any Person or (y) a Restricted Subsidiary (including options, in connection with warrants or other rights to acquire such shares of Capital Stock) held by any merger or consolidation involving the Company) any Equity Interests Affiliate of the Company or its Restricted Subsidiaries Parent Guarantor (other than any such Equity Interests owned by the Company a Wholly Owned Restricted 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 payment on voluntary or with respect tooptional principal payment, or purchasevoluntary or optional redemption, redeemrepurchase, defease defeasance, or otherwise acquire other acquisition or retire retirement for value value, of any Indebtedness of the Company or any of its Restricted Subsidiaries that is contractually subordinated to the Notes or any Note Guarantee (excluding any intercompany Indebtedness between or among the Company and any in right of the Guarantors), except a payment of interest or principal at the Stated Maturity thereof (for purposes of clarity, the Existing Notes will not be deemed to be contractually subordinated to the Notes), the Parent Guarantee or any Subsidiary Guarantee; or (iv) make any Restricted Investment Investment, other than a Permitted Investment, in any Person (all such payments and or any other actions set forth described in clauses (i) through (iv) above being collectively referred to as “Restricted Payments”), unless) if, at the time of of, and after giving effect to such to, the proposed Restricted Payment:: (A) a Default or Event of Default shall have occurred and be continuing, (B) the Parent Guarantor could not Incur at least $1.00 of Indebtedness under clause (i) of Section 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 shall exceed the sum of (1) the amount by which Consolidated EBITDA of the Parent Guarantor exceeds 150% of Consolidated Interest Expense of the Parent Guarantor, in each case, determined 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, plus (2) the aggregate Net Cash Proceeds and the fair market value of all non-cash proceeds received by the Company or the Parent Guarantor after the Existing High Yield Closing 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 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 Net Cash Proceeds and non-cash proceeds are used to Incur Indebtedness pursuant to clause (viii) of Section 4.03(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, 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, the Parent Guarantor 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 Subsidiaries toSubsidiary, 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 in respect of its Restricted Subsidiaries’ Equity Interests Capital Stock (including, without limitation, including any payment in connection with any merger or consolidation involving the Company or its Restricted SubsidiariesCompany) or to the direct or indirect holders of the Company’s or any of its Restricted Subsidiaries’ Equity Interests in their capacity as such except (other than A) dividends or distributions payable in Equity Interests its Capital Stock (other than Disqualified Stock) of the Company or dividends, payments and (B) dividends or distributions payable to the Company or a Guarantoranother Subsidiary (and, or payable by a Restricted if such Subsidiary that is not a Guarantor Wholly-Owned Subsidiary, to any Restricted Subsidiaryits other stockholders on a pro rata basis); , (ii) purchase, redeem redeem, retire or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests Capital Stock of the Company or its Restricted Subsidiaries (any Subsidiary held by Persons other than any such Equity Interests owned by the Company or any Guarantor); another Subsidiary, (iii) make any payment on or with respect topurchase, or purchaserepurchase, redeem, defease or otherwise acquire or retire for value value, prior to scheduled maturity, scheduled repayment or scheduled sinking fund payment, any Subordinated Obligations (other than the purchase, repurchase or other acquisition of Subordinated Obligations purchased in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case due within one year of the date of acquisition) or (iv) make any Investment (other than a Permitted Investment) in any Person (any such dividend, distribution, purchase, redemption, repurchase, defeasance, other acquisition, retirement or Investment being herein referred to as a "Restricted Payment"), if at the time the Company or such Subsidiary makes such Restricted Payment: (1) a Default shall have occurred and be continuing (or would result therefrom); or (2) the Company could not Incur at least an additional $1.00 of Indebtedness pursuant to Section 4.3(a); or (3) the aggregate amount of such Restricted Payment and all other Restricted Payments declared (the amount 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 of Directors) 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 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, 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 other trust established by the Company or any 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 of its Restricted Subsidiaries that is contractually subordinated to cash, or other property, distributed by the Notes Company or any Note Guarantee (excluding any intercompany Indebtedness between Subsidiary upon such conversion or among the Company and any of the Guarantorsexchange), except a payment of interest or principal at the Stated Maturity thereof (for purposes of clarity, the Existing Notes will not be deemed to be contractually subordinated to the Notes); or (iv) make any Restricted Investment (all such payments and other actions set forth in clauses (i) through (iv) above being collectively referred to as “Restricted Payments”), unless, at the time of and after giving effect to such Restricted Payment:.

Limitation on Restricted Payments. (a) The Company will Parent Borrower shall not, and will shall not permit any of its Restricted Subsidiaries toSubsidiary, directly or indirectly: , to (i) declare or pay any dividend or make any other payment distribution or distribution on account of the Company’s or redeem any of its Restricted Subsidiaries’ Equity Interests 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 in respect of its Capital Stock (including any such payment in connection with any merger or consolidation involving to which the Company or its Restricted SubsidiariesParent Borrower is a party) or to the direct or indirect holders of the Company’s or any of its Restricted Subsidiaries’ Equity Interests in their capacity as such except (other than x) dividends or distributions payable solely in Equity Interests its Capital Stock (other than Disqualified Stock) of the Company or dividends, payments and (y) dividends or distributions payable to the Company Parent Borrower or a Guarantor, or payable by a any Restricted Subsidiary that is not (and, in the case of any such Restricted Subsidiary making such dividend or distribution, to other holders of its Capital Stock on no more than a Guarantor to any Restricted Subsidiarypro rata basis, measured by value); , (ii) purchase, redeem redeem, retire or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests Capital Stock of the Company Parent Borrower held by Persons other than the Parent Borrower or its a Restricted Subsidiaries Subsidiary (other than any acquisition of Capital Stock deemed to occur upon the exercise of options if such Equity Interests owned by Capital Stock represents a portion of the Company or any Guarantorexercise price thereof); , (iii) make any pay or prepay principal, interest or otherwise on the Shareholder Loans or Subordinated Debt Funding (other than payment on of interest by increasing the principal amount of such Shareholder Loans or with respect toSubordinated Debt Funding) or otherwise purchase, or purchaserepurchase, redeem, defease or otherwise acquire or retire for value any Indebtedness of the Company value, prior to scheduled maturity, scheduled repayment or any of its Restricted Subsidiaries that is contractually subordinated to the Notes scheduled sinking fund payment, Shareholder Loans or any Note Guarantee (excluding any intercompany Indebtedness between or among the Company and any of the Guarantors)Subordinated Debt Funding, except a payment of interest or principal at the Stated Maturity thereof (for purposes of clarity, the Existing Notes will not be deemed to be contractually subordinated to the Notes); or (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 in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case due within one year of the date of such purchase, repurchase, redemption, defeasance or other acquisition or retirement) or (v) make any Restricted Investment (all other than a Permitted Investment) in any Person (any such payments and dividend, distribution, purchase, repurchase, redemption, defeasance, other actions set forth in clauses (i) through (iv) above acquisition or retirement or Investment being collectively herein referred to as a “Restricted PaymentsPayment”), unless, if at the time of and the Parent Borrower or such Restricted Subsidiary makes such Restricted Payment after giving effect to such Restricted Paymentthereto:

Limitation on Restricted Payments. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, directly or indirectly: (i) declare or pay any dividend or make any other payment or distribution on account of Volume Holdings', the Company’s 's or any of its Restricted Subsidiaries’ ' Equity Interests (includingInterests, without limitation, including any payment made in connection with any merger or consolidation involving the Company or its Restricted Subsidiaries) or to the direct or indirect holders of the Company’s or any of its Restricted Subsidiaries’ Equity Interests in their capacity as such (other than (A) dividends or distributions by the Company payable solely in Equity Interests (other than Disqualified Stock) of the Company or dividends, payments (B) dividends or distributions by a Restricted Subsidiary so long as, in the case of any dividend or distribution payable to on or in respect of any class or series of securities issued by a Restricted Subsidiary other than a Wholly Owned Restricted Subsidiary, the Company or a Guarantor, or payable by a Restricted Subsidiary that is not a Guarantor to any Restricted Subsidiaryreceives at least its pro rata share of such dividend or distribution in accordance with its Equity Interests in such class or series of securities); (ii) purchase, redeem purchase or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of Volume Holdings or the Company or its Restricted Subsidiaries (other than any such Equity Interests owned by the Company or any Guarantor)Company; (iii) make any principal payment on or with respect toon, or purchaseredeem, redeemrepurchase, defease or otherwise acquire or retire for value value, in each case prior to any scheduled repayment or scheduled maturity, any Subordinated Indebtedness (other than the payment, redemption, repurchase, defeasance, acquisition or retirement of (A) Subordinated Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case due within one year of the Company date of such payment, redemption, repurchase, defeasance, acquisition or any retirement and (B) Indebtedness permitted under clauses (vii) and (ix) of its Restricted Subsidiaries that is contractually subordinated to the Notes or any Note Guarantee (excluding any intercompany Indebtedness between or among the Company and any of the GuarantorsSection 4.03(b), except a payment of interest or principal at the Stated Maturity thereof (for purposes of clarity, the Existing Notes will not be deemed to be contractually subordinated to the Notes); or (iv) make any Restricted Investment (all such payments and other actions set forth in clauses (i) through (iv) above being collectively referred to as “"Restricted Payments”"), unless, at the time of and after giving effect to such Restricted Payment:

Limitation on Restricted Payments. (a) The Company will shall not, and will not permit any of shall cause its Restricted Subsidiaries not to, directly or indirectly: , (i) declare or pay any dividend on, or make any other payment or distribution on account to the holders of, any Capital Stock of the Company’s or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company or its Restricted Subsidiaries) or to the direct or indirect holders of the Company’s or any of its Restricted Subsidiaries’ Equity Interests in their capacity as such (other than dividends or distributions payable in Equity Interests Capital Stock of the Company (other than Disqualified Stock) of the Company or dividends, payments or distributions payable to the Company or a Guarantor, or payable by a Restricted Subsidiary that is not a Guarantor to any Restricted Subsidiary); (ii) purchaserepay, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving other than through the Companyissuance of Capital Stock of the Company (excluding Disqualified Stock)) any Equity Interests Capital Stock of 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 (other than any such Equity Interests owned by the Company or any Guarantor)Subsidiaries; (iii) make any payment on or with respect toprepay, or purchaserepay, redeem, defease or otherwise acquire or retire for value (other than through the issuance of Capital Stock of the Company (excluding Disqualified Stock)), prior to any scheduled maturity, scheduled repayment or scheduled sinking fund payment, any Indebtedness of the Company or any of its Restricted Subsidiaries that is contractually subordinated to the Notes or any Note Guarantee (excluding any intercompany Indebtedness between or among the Company and any ranks junior in right of the Guarantors), except a payment of interest or principal at the Stated Maturity thereof (for purposes of clarity, the Existing Notes will not be deemed to be contractually subordinated to the Notes, except as permitted pursuant to Section 5.14(b)(vii); or (iv) make any Investment in any Affiliate of the Company other than (A) an Investment by the Company or any of its Restricted Subsidiaries in the Company or any such 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 (all such payments and other the foregoing actions set forth in clauses (i) through (iv) above being collectively referred to hereinafter as “Restricted Payments”), unless, "RESTRICTED PAYMENTS") if at the time of any such Restricted Payment, and after giving effect thereto on a pro forma basis, (1) a Default or an Event of Default shall have occurred and be continuing, (2) the Consolidated Net Worth of the Company and its Restricted Subsidiaries shall be less than $250,000,000, (3) the Company could not incur at least $1.00 of additional Indebtedness pursuant to Section 5.14(a), or (4) the aggregate amount of all Restricted Payments declared or made after the Initial Issuance Date including such Restricted PaymentPayment (the value of any such payment, if other than cash, shall be the value determined in good faith by the Board of Directors and evidenced by a Board Resolution) shall exceed the sum of:

Limitation on Restricted Payments. The Company will not, and will not cause or permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly: (i) declare or pay any dividend on, or make any other payment or distribution on account to holders of, any shares of the Company’s or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company or its Restricted Subsidiaries) or to the direct or indirect holders of the Company’s or any of its Restricted Subsidiaries’ Equity Interests in their capacity as such Capital Stock (other than dividends or distributions payable solely in Equity Interests (shares of its Qualified Capital Stock or in options, warrants or other than Disqualified rights to acquire shares of such Qualified Capital Stock) of the Company or dividends, payments or distributions payable to the Company or a Guarantor, or payable by a Restricted Subsidiary that is not a Guarantor to any Restricted Subsidiary); (ii) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or its Restricted Subsidiaries (other than any such Equity Interests owned by the Company or any Guarantor); (iii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value (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) or options, warrants or other rights to acquire such Capital Stock; other than, to the extent applicable, as contemplated by 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 or any of its Wholly Owned Restricted Subsidiaries that is contractually subordinated or (b) dividends or distributions made by a Restricted Subsidiary on a pro rata basis to the Notes all stockholders (or other holders of Capital Stock of) of such Restricted Subsidiary, including by ViSalus to its stockholders in accordance with ViSalus’s articles of incorporation); or make any Note Guarantee Investment in any Person (excluding other than any intercompany Indebtedness between or among the Company and Permitted Investments) (any of the Guarantors), except a payment of interest or principal at the Stated Maturity thereof (for purposes of clarity, the Existing Notes will not be deemed to be contractually subordinated to the Notes); or (iv) make any Restricted Investment (all such payments and other foregoing actions set forth described in clauses (i) through (ivv) above being collectively referred to above, other than any such action that is a Permitted Payment (as defined below), collectively, “Restricted Payments”) (the amount of any such Restricted Payment, if other than cash, shall be the Fair Market Value of the assets proposed to be transferred), unless: immediately before and immediately after giving effect to such proposed Restricted Payment on a pro forma basis, at the time no Default or Event of Default shall have occurred and be continuing; immediately before and immediately after giving effect to such Restricted Payment on a pro forma basis, the Company could incur $1.00 of additional Indebtedness (other than Permitted Indebtedness) under the provisions of clause (a) of Section 10.08; and after giving effect to the proposed Restricted Payment:, the aggregate amount of all such Restricted Payments declared or made after the Issue Date and all Designation Amounts does not exceed the sum (the “Restricted Payment Basket”) of: 50% of the aggregate Consolidated Net Income of the Company accrued on a cumulative basis during the period beginning on the first day of the Company’s fiscal quarter beginning after the Issue Date and ending on the last day of the Company’s last fiscal quarter ending prior to the date of the Restricted Payment (or, if such aggregate cumulative Consolidated Net Income shall be a loss, minus 100% of such loss); the aggregate Net Cash Proceeds received after the Issue Date by the Company either (I) as capital contributions in the form of common equity to the Company or (II) from the issuance or sale (other than to any of its Subsidiaries) of Qualified Capital Stock of the Company or any options, warrants or rights to purchase such Qualified Capital Stock of the Company (except, in each case, to the extent such 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 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 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 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 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 (A) shall be in 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 of the date of determination), plus the lesser of (1) the stated amount of any premium or other payment required to be 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 either case, the amount of 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 addition to any other redemption permitted under this Indenture) by the payment of the redemption price therefor (or applicable 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. The Company will Issuer shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly: , (i1) declare or pay any dividend or make any other payment or distribution on account 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) held by Persons other than the Company’s Issuer or any of its Restricted Subsidiaries’ Equity Interests , (including2) purchase, without limitationcall for redemption or redeem, retire or otherwise acquire for value any payment in connection with shares of Capital Stock of (A) the Issuer (including options, warrants or other rights to acquire such shares of Capital Stock) held by any merger Person or consolidation involving the Company (B) a Restricted Subsidiary (including options, warrants or its Restricted Subsidiariesother rights to acquire such shares of Capital Stock) or to the direct or indirect holders held by any Affiliate of the Company’s or any of its Restricted Subsidiaries’ Equity Interests in their capacity as such Issuer (other than dividends a Wholly Owned Restricted Subsidiary) or distributions payable in Equity Interests any holder (other than Disqualified Stockor any Affiliate of such holder) of the Company 10% or dividends, payments or distributions payable to the Company or a Guarantor, or payable by a Restricted Subsidiary that is not a Guarantor to any Restricted Subsidiary); (ii) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests more of the Company or its Restricted Subsidiaries Capital Stock of the Issuer, (other than any such Equity Interests owned by the Company or any Guarantor); (iii3) make any payment on voluntary or with respect tooptional principal payment, or purchasevoluntary or optional redemption, redeemrepurchase, defease defeasance, or otherwise acquire other acquisition or retire retirement for value value, of Indebtedness of the Issuer that is subordinated in right of payment to the Securities or any Indebtedness of the Company or any of its Restricted Subsidiaries a Subsidiary Guarantor that is contractually subordinated in right of payment to the Notes or any a Note Guarantee (excluding any intercompany Indebtedness between or among the Company and any of the Guarantors), except a payment of interest or principal at the Stated Maturity thereof (for purposes of clarity, the Existing Notes will not be deemed to be contractually subordinated to the Notes); or (iv4) make any Restricted Investment Investment, other than a Permitted Investment, in any Person (all such payments and or any other actions set forth described in clauses (i1) through (iv4) above being collectively referred to as “Restricted Payments”), unless) if, at the time of of, and after giving effect to such to, the proposed Restricted Payment:

Limitation on Restricted Payments. The Company will not, and will not permit any of its Restricted Subsidiaries toSubsidiary, 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 class of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company or its Restricted Subsidiaries) or to the direct or indirect holders of the Company’s or any of its Restricted Subsidiaries’ Equity Interests in their capacity as such Capital Stock (other than dividends or distributions payable solely in Equity Interests shares of its or such Restricted Subsidiary's Capital Stock (other than Disqualified Redeemable Stock) of the Company same class as such Capital Stock or dividendsin options, payments warrants or distributions payable other rights to the Company or a Guarantor, or payable acquire shares of such Capital Stock) held by a Restricted Subsidiary that is not a Guarantor to any Restricted Subsidiary); (ii) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or its Restricted Subsidiaries (Persons other than any such Equity Interests owned by the Company or any Guarantor); (iii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness of 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 or any Unrestricted Subsidiary (including options, warrants or other rights to acquire any shares of such Capital Stock) held by Persons other than the Company or another Restricted Subsidiary that is contractually a Wholly Owned Subsidiary, (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 any Note Guarantee (excluding any intercompany Indebtedness between or among the Company and any of the Guarantors)Securities, except a payment of interest or principal at the Stated Maturity thereof (for purposes of clarity, the Existing Notes will not be deemed to be contractually subordinated to the Notes); or (iv) make any Investment in any Affiliate (other than the Company or a 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 Joint Venture (all such payments and or any other actions set forth described in clauses (i) through (ivv) above being collectively referred to as “"Restricted Payments”), unless, ") unless at the time of and after giving effect to such the proposed Restricted Payment:

Limitation on Restricted Payments. The Company will shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly: , (i) declare or pay any dividend dividend, or make any other payment distribution, of any kind or distribution on account character (whether in cash, property or securities) in respect of the Company’s or any Capital Stock of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company or its any Restricted Subsidiaries) Subsidiary or to the direct or indirect holders of the Company’s or any of its Restricted Subsidiaries’ Equity Interests thereof in their capacity as such (other than excluding (a) any dividends or distributions to the extent payable in Equity Interests shares of the Capital Stock of the Company (other than Disqualified StockRedeemable Interests) or in options, warrants or other rights to acquire the Capital Stock of the Company or dividends(other than Redeemable Interests), payments (b) dividends or distributions payable by a Restricted Subsidiary to the Company or a Guarantor, or payable another Wholly Owned Restricted Subsidiary and (c) the payment of pro rata dividends by a Restricted Subsidiary that is not a Guarantor to any holders of both minority and majority interests in such Restricted Subsidiary); , (ii) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Companya) any Equity Interests 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 of any of its Restricted Subsidiaries (Capital Stock, other than any ownership interests or options, warrants or rights to purchase such Equity Interests Capital Stock or other ownership interests, in each case, owned by the Company or any Guarantor); a Wholly Owned Restricted Subsidiary, (iii) make any payment on Investment that is not a Permitted Investment or with respect to, or purchase, (iv) redeem, defease defease, repurchase, retire or otherwise acquire or retire for value prior to any Indebtedness scheduled maturity, repayment or sinking fund payment, Debt of the Company or any of its Restricted Subsidiaries that is contractually subordinated subordinate in right of payment to the Notes or any Note Guarantee (excluding any intercompany Indebtedness between or among the Company and any each of the Guarantors), except a payment of interest or principal at the Stated Maturity thereof (for purposes of clarity, the Existing Notes will not be deemed to be contractually subordinated to the Notes); or (iv) make any Restricted Investment (all such payments and other actions set forth transactions described in clauses Clauses (i) through (iv) above being collectively referred to as “a "Restricted Payments”Payment"), unless, at the time of and after giving effect to such Restricted Paymentif:

Limitation on Restricted Payments. The Company will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly: , (i) declare or pay any dividend or make any other payment or distribution on account of the Company’s or any of with respect to its Restricted Subsidiaries’ Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company or its Restricted Subsidiaries) or to the direct or indirect holders of the Company’s or any of its Restricted Subsidiaries’ Equity Interests in their capacity as such Capital Stock (other than (x) dividends or distributions payable solely in Equity Interests 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 Company or dividends, payments or distributions payable to fiscal quarter beginning immediately following the Company or a Guarantor, or payable Closing Date) held by a Restricted Subsidiary that is not a Guarantor to any Restricted Subsidiary); (ii) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or its Restricted Subsidiaries (Persons other than any such Equity Interests owned by the Company or any Guarantor); (iii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness of the Company or any of its Restricted Subsidiaries Subsidiaries, (ii) purchase, redeem, retire or otherwise acquire for value any shares of Capital Stock of (x) the Company or an Unrestricted Subsidiary (including options, warrants or other rights to acquire such shares of Capital Stock) held by any Person other than the Company or any Wholly Owned Restricted 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 contractually subordinated in right of payment to the Notes (other than the purchase, repurchase or the acquisition of Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in any Note Guarantee (excluding any intercompany Indebtedness between or among the Company and any case due within one year of the Guarantors), except a payment date of interest or principal at the Stated Maturity thereof (for purposes of clarity, the Existing Notes will not be deemed to be contractually subordinated to the Notes); acquisition) or (iv) make any Restricted Investment Investment, other than a Permitted Investment, in any Person (all such payments and or any other actions set forth described in clauses (i) through (iv) above being collectively referred to as “Restricted Payments”), unless, at the time of and after giving effect to such Restricted Payment:clauses

Limitation on Restricted Payments. The Company will shall not, and will not permit any of shall cause its Restricted Subsidiaries not to, directly or indirectly: , (i) declare or pay any dividend on, or make any other payment or distribution on account to the holders of, any Capital Stock of the Company’s or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company or its Restricted Subsidiaries) or to the direct or indirect holders of the Company’s or any of its Restricted Subsidiaries’ Equity Interests in their capacity as such (other than (x) dividends or distributions payable in Equity Interests Capital Stock of the Company (other than Disqualified Stock) or (y) pro rata dividends or distributions on Capital Stock (other than Disqualified Stock) of the Company or dividends, payments or distributions payable to the Company or a Guarantor, or payable by a its Restricted Subsidiary that is not a Guarantor to any Restricted Subsidiary)Subsidiaries; (ii) purchaserepay, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving other than through the Companyissuance of Capital Stock of the Company (excluding Disqualified Stock)) any Equity Interests Capital Stock of the Company or any of its Restricted Subsidiaries, other than any such repayment, redemption, acquisition or retirement of such Capital Stock held by (x) the 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 any such Equity Interests owned by another Restricted Subsidiary) of the Company or any Guarantor)Company; (iii) make any payment on or with respect toprepay, or purchaserepay, redeem, defease or otherwise acquire or retire for value (other than through the issuance of Capital Stock of the Company (excluding Disqualified Stock)), prior to any scheduled maturity, scheduled repayment or scheduled sinking fund payment, any Indebtedness of the Company or any of its Restricted Subsidiaries that is contractually subordinated ranks junior in right of payment to the Notes or any Note Guarantee (excluding any intercompany Indebtedness between or among the Company and any of the Guarantors)Guarantees, as applicable, except a payment of interest or principal at the Stated Maturity thereof (for purposes of clarity, the Existing Notes will not be deemed as permitted pursuant to be contractually subordinated to the NotesSection 5.14(b)(vii); or (iv) make any Investment in any Affiliate of the Company other than (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 Subsidiary in connection with a Qualifying PEMEX Securitization Transaction, or (B) an Investment by the Company or any Restricted Subsidiary consisting of non-cash consideration received in connection with a Qualifying Disposition (all such payments and other the foregoing actions set forth in clauses (i) through (iv) above ), being collectively referred to hereinafter as “Restricted Payments”), unless, ) if at the time of any such Restricted Payment, and after giving effect thereto on a pro forma basis, (1) a Default or an Event of Default shall have occurred and be continuing, (2) on a pro forma basis, the Consolidated Debt Service Coverage Ratio for the Company for the four fiscal quarters immediately preceding such incurrence for which quarterly financial statements are available in accordance with Section 5.08, taken as one period, is greater than 2.0 to 1.0, or (3) the aggregate amount of all Restricted Payments declared or made after the Initial Issuance Date including such Restricted PaymentPayment (the value of any such payment, if other than cash, shall be the value determined in good faith by the Board of Directors and evidenced by a Board Resolution) shall exceed the sum of:

Limitation on Restricted Payments. The Company will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly: , (i) declare or pay any dividend or make any other payment or distribution on account of the Company’s or any of with respect to its Restricted Subsidiaries’ Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company or its Restricted Subsidiaries) or to the direct or indirect holders of the Company’s or any of its Restricted Subsidiaries’ Equity Interests in their capacity as such Capital Stock (other than (x) dividends or distributions payable solely in Equity Interests shares of its Capital Stock (other than Disqualified Stock) or in options, warrants or other rights to acquire shares of the Company or dividends, payments such Capital Stock and (y) dividends or distributions payable to the Company or a Guarantor, or payable by on Capital Stock of a Restricted Subsidiary that is not held by minority interest holders on no more than a Guarantor to any pro rata basis, measured by value and based on all outstanding Capital Stock of such Restricted Subsidiary); (ii) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or its Restricted Subsidiaries (held by Persons other than any such Equity Interests owned by the Company or any Guarantor); (iii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness of the Company or any of its Restricted Subsidiaries Subsidiaries, (ii) purchase, redeem, retire or otherwise acquire for value any shares of Capital Stock of (A) the Company or an Unrestricted Subsidiary (including options, warrants or other rights to acquire such shares of Capital Stock) held by any Person other than the Company or any Wholly Owned Restricted 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 contractually expressly subordinated in right of payment to the Notes or any Note Notes Guarantee (excluding any intercompany Indebtedness between or among the Company and any of the Guarantors), except a payment of interest or principal at the Stated Maturity thereof (for purposes of clarity, the Existing Notes will not be deemed to be contractually subordinated to the Notes); or (iv) make any Restricted Investment Investment, other than a Permitted Investment, in any other Person (all such payments and or any other actions set forth described in clauses (i) through (iv) above being collectively referred to as “"Restricted Payments”), unless") if, at the time of of, and after giving effect to such to, the proposed Restricted Payment: (A) a Default or Event of Default shall have occurred and be continuing, (B) the Company could not Incur at least $1.00 of Indebtedness under the first paragraph 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 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) 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 (2) the aggregate Net Cash Proceeds received by the Company after the Closing Date 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 Net Cash Proceeds are used to Incur Indebtedness pursuant to clause (viii) of the second paragraph under Section 4.03 PLUS (3) an amount equal to the net reduction in Investments (other than reductions in Permitted Investments 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 sale or other disposition that would be included in the calculation of Adjusted Consolidated Net Income 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. 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 of its Restricted Subsidiaries to, directly or indirectly: , (i) declare or pay any dividend or make any other payment or distribution on account of the Company’s corporation's or any of its Restricted Subsidiaries’ Subsidiary's Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company or its Restricted Subsidiariesconsolidation) or to the direct or indirect holders of the Company’s or any of its Restricted Subsidiaries’ Equity Interests in their capacity as such (other than dividends or distributions (A) paid or payable in Equity Interests (other than Disqualified Stock) of the Company corporation or dividends, payments (B) paid or distributions payable to the Company corporation or a Guarantor, or payable by a Restricted any Subsidiary that is not a Guarantor to any Restricted Subsidiary)of the corporation; (ii) purchase, redeem redeem, or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company corporation or its Restricted Subsidiaries any direct or indirect parent of the corporation or other Affiliate of the corporation or any Subsidiary of the corporation (other than any such Equity Interests owned by the Company corporation or any GuarantorSubsidiary of the corporation); (iii) make any principal payment on or with respect toon, or purchase, redeem, defease 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 would result therefrom, any such payment, purchase, redemption, defeasance, or other acquisition or retirement for value 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 or any of its Restricted Subsidiaries that is contractually subordinated Subordinated Notes properly tendered pursuant to the Notes terms thereof or any Note Guarantee (excluding any intercompany Indebtedness between or among 3) upon the Company and any redemption of the Guarantors), except a payment Convertible Preferred Stock in accordance with the terms of interest or principal at the Stated Maturity thereof (for purposes these Articles of clarity, the Existing Notes will not be deemed to be contractually subordinated to the NotesIncorporation); or (iv) make any Restricted Investment (all such payments and other actions set forth in clauses (i) through (iv) above being collectively referred to as “"Restricted Payments”"), unless, at the time of and after giving effect to such Restricted Payment:

Limitation on Restricted Payments. The Company will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly: , (i) declare or pay any dividend or make any other payment or distribution on account of the Company’s or any of with respect to its Restricted Subsidiaries’ Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company or its Restricted Subsidiaries) or to the direct or indirect holders of the Company’s or any of its Restricted Subsidiaries’ Equity Interests in their capacity as such Capital Stock (other than (x) dividends or distributions payable solely in Equity Interests shares of its Capital Stock (other than Disqualified Stock) or in options, warrants or other rights to acquire shares of the Company or dividends, payments such Capital Stock and (y) pro rata dividends or distributions payable to the Company or a Guarantor, or payable by a Restricted Subsidiary that is not a Guarantor to any Restricted Subsidiary); (ii) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests on Common Stock of the Company or its Restricted Subsidiaries (held by minority stockholders) held by Persons other than any such Equity Interests owned by the Company or any Guarantor); (iii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness of the Company or any of its Restricted Subsidiaries Subsidiaries, (ii) purchase, redeem, retire or otherwise acquire for value any shares of Capital Stock of (A) the Company or an Unrestricted Subsidiary (including options, warrants or other rights to acquire such shares of Capital Stock) held by 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 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 contractually subordinated in right of payment to the Notes or any Note Guarantee (excluding any intercompany Indebtedness between or among the Company and any of the Guarantors)other than, except a payment of interest or principal at the Stated Maturity thereof (for purposes of clarityin each case, the Existing Notes will not be deemed to be contractually subordinated to purchase, repurchase or acquisition of Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in any case due within one year after the Notes); date of such purchase, repurchase or acquisition) or (iv) make any Restricted Investment Investment, other than a Permitted Investment, in any Person (all such payments and or any other actions set forth described in clauses (i) through (iv) above being collectively referred to as “"Restricted Payments”), unless") if, at the time of of, and after giving effect to such to, the proposed Restricted Payment:: (A) a Default or Event of Default shall have occurred and be continuing, (B) the Company could not Incur at least $1.00 of Indebtedness under the first paragraph 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 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 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 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 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) plus (3) an amount equal to the net reduction in Investments (other than reductions in Permitted Investments 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 "Investment"), 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 of its Restricted Subsidiaries Subsidiary to, directly or indirectly: , (i) declare or pay any dividend or make any other payment or distribution on account of the Company’s or any of with respect to its Restricted Subsidiaries’ Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company or its Restricted Subsidiaries) or to the direct or indirect holders of the Company’s or any of its Restricted Subsidiaries’ Equity Interests in their capacity as such Capital Stock (other than (x) dividends or distributions payable solely in Equity Interests shares of its Capital Stock (other than Disqualified Stock) or in options, warrants or other rights to acquire shares of the Company or dividends, payments such Capital Stock and (y) pro rata dividends or distributions payable to the Company or a Guarantor, or payable by a Restricted Subsidiary that is not a Guarantor to any Restricted Subsidiary); (ii) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests on Capital Stock of the Company or its Restricted Subsidiaries (held by minority stockholders) held by Persons other than any such Equity Interests owned by the Company or any Guarantor); (iii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness of the Company or any of its Restricted Subsidiaries Subsidiaries, (ii) purchase, redeem, retire or otherwise acquire for value any shares of Capital Stock of (A) the Company or an Unrestricted Subsidiary (including options, warrants or other rights to acquire such shares of Capital Stock) held by 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 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 Restricted 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 contractually subordinated in right of payment to the Notes or any Note Guarantee (excluding any intercompany Indebtedness between or among the Company and any of the Guarantors), except a payment of interest or principal at the Stated Maturity thereof (for purposes of clarity, the Existing Notes will not be deemed to be contractually subordinated to the Notes); or (iv) make any Restricted Investment Investment, other than a Permitted Investment, in any Person (all such payments and or any other actions set forth described in clauses (i) through (iv) above being collectively referred to as “"Restricted Payments”), unless") if, at the time of of, and after giving effect to such to, the proposed Restricted Payment:: (A) a Default or Event of Default shall have occurred and be continuing, (B) the Company could not Incur at least $1.00 of Indebtedness under the first paragraph of subsection (a) of this Section 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 shall exceed the sum of (1) Consolidated 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 Determination Date for which reports have been filed with the Commission or provided to the Trustee pursuant to Section 1020 less two times Consolidated Interest Expense for such period, plus (2) the aggregate Net Cash Proceeds received by the Company after the Closing Date 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 the Indenture of Indebtedness of the Company for cash subsequent to the Closing Date upon the conversion or exchange 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) 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 Consolidated EBITDA), 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. The Company will not, and will not permit any of its Restricted Subsidiaries toSubsidiary, 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 with respect to its Restricted Subsidiaries’ Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company or its Restricted Subsidiaries) or to the direct or indirect holders of the Company’s or any of its Restricted Subsidiaries’ Equity Interests in their capacity as such Capital Stock (other than (x) dividends or distributions payable solely in Equity Interests 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 Company or dividends, payments or distributions payable to fiscal quarter beginning immediately following the Company or a Guarantor, or payable Closing Date) held by a Restricted Subsidiary that is not a Guarantor to any Restricted Subsidiary); (ii) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or its Restricted Subsidiaries (Persons other than any such Equity Interests owned by the Company or any Guarantor); (iii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness of the Company or any of its Restricted Subsidiaries Subsidiaries, (ii) purchase, redeem, retire or otherwise acquire for value any shares of Capital Stock of the Company, any 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 contractually subordinated in right of payment to the Debentures or of any Guarantor that is subordinated to the Notes or any Note Subsidiary Guarantee (excluding 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 intercompany Indebtedness between or among the Company and any case due within one (1) year of the Guarantors), except a payment date of interest or principal at the Stated Maturity thereof (for purposes of clarity, the Existing Notes will not be deemed to be contractually subordinated to the Notes); acquisition) or (iv) make any Restricted Investment Investment, other than a Permitted Investment, in any Person (all such payments and or any other actions set forth described in clauses (i) through (iv) above being collectively referred to as “"Restricted Payments”), unless") if, at the time of of, and after giving effect to, the proposed Restricted Payment: (A) a Potential Event of Default or Event of Default shall have occurred and be continuing, (B) except with respect to Investments and dividends on the Common Stock of any Guarantor, the Company could not Incur at least $1.00 of Indebtedness under the first paragraph of Section 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 shall exceed the sum of (1) fifty percent (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 (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 with the Commission plus (2) the aggregate Net Cash Proceeds received by the Company or any Guarantor after the Closing Date 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 Net Cash Proceeds are used to Incur Indebtedness pursuant to clause (viii) of the second paragraph of Section 13.5, 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 Restricted Payment: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 Subsidiaries toSubsidiary, directly or indirectly: , to (i) declare or pay any dividend dividend, make any distribution on or in respect of its Capital Stock or make any other similar payment (including any payment of Patronage or distribution on account of the Company’s or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company or its Restricted Subsidiariesany Subsidiary of the Company) or to the direct or indirect holders of the Company’s or any of its Restricted Subsidiaries’ Equity Interests in their capacity as such Capital Stock, except (other than 1) dividends or distributions payable solely in Equity Interests its Capital Stock (other than Disqualified Stock or Preferred Stock), (2) of the Company or dividends, payments dividends or distributions payable to the Company or a Guarantor, or payable by a Restricted Subsidiary that is not (and, if such Restricted Subsidiary has shareholders other than the Company or other Restricted Subsidiaries, to its other shareholders on a Guarantor to any Restricted Subsidiary); pro rata basis) and (3) dividends paid in respect of the Capital Securities, (ii) purchase, redeem repurchase, redeem, retire, make any revolvement payment or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests Capital Stock of the Company or its any Restricted Subsidiaries (Subsidiary held by Persons other than any such Equity Interests owned by the Company or any Guarantora Restricted Subsidiary (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); ), (iii) make any payment on or with respect to, or purchase, repurchase, redeem, retire, defease or otherwise acquire for value, prior to scheduled maturity, scheduled repayment or retire scheduled sinking fund payment any Subordinated Obligations or any Indebtedness owed to the trust entity that has issued the Capital Securities (other than the purchase, repurchase, redemption, retirement, defeasance or other acquisition for value any Indebtedness of Subordinated Obligations acquired in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case due within one year of the Company or any date of its Restricted Subsidiaries that is contractually subordinated to the Notes or any Note Guarantee (excluding any intercompany Indebtedness between or among the Company and any of the Guarantors), except a payment of interest or principal at the Stated Maturity thereof (for purposes of clarity, the Existing Notes will not be deemed to be contractually subordinated to the Notes); acquisition) or (iv) make any Restricted Investment (all such payments and other actions set forth than a Permitted Investment) in clauses any Person (any dividend, distribution, payment, purchase, redemption, repurchase, defeasance, retirement, other acquisition or Investment described in the foregoing items (i), (ii), (iii) through and (iv) above being collectively herein referred to as “a "Restricted Payments”), unless, Payment") if at the time of and after giving effect to the Company or such Restricted Subsidiary makes such Restricted Payment:

Limitation on Restricted Payments. The Company will not, and will not permit any of its Restricted Subsidiaries Subsidiary (including the Guarantor) to, directly or indirectly: , (i) declare or pay any dividend or make any other payment or distribution on account of the Company’s or any of with respect to its Restricted Subsidiaries’ Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving Capital Stock held by Persons other than the Company or its any Restricted Subsidiaries) or to the direct or indirect holders of the Company’s or any of its Restricted Subsidiaries’ Equity Interests in their capacity as such Subsidiary (other than (x) dividends or distributions payable solely in Equity Interests 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 the Company or dividends, payments such Capital Stock and (y) pro rata dividends or distributions payable on Common Stock of Restricted Subsidiaries; provided that such payments made to Persons other than the Company or a Guarantor, or payable by a Restricted Subsidiary that is not a Guarantor to any Restricted Subsidiaryshall be included in calculating whether the conditions of clause (C) of this first paragraph of Section 4.04 have been met); , (ii) purchase, redeem redeem, retire or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests shares of Capital Stock of the Company or its Restricted Subsidiaries the Guarantor (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 or any Guarantor); (iii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness of the Company or any of its Wholly-Owned Restricted Subsidiaries 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 contractually subordinated in right of payment to the Securities or of the Guarantor that is subordinated to the Notes or any Note Security Guarantee (excluding any intercompany Indebtedness between or among the Company and any of the Guarantors), except a payment of interest or principal at the Stated Maturity thereof (for purposes of clarity, the Existing Notes will not be deemed to be contractually subordinated to the Notes); or (iv) make any Restricted Investment Investment, other than a Permitted Investment, in any Person (all such payments and or any other actions set forth described in clauses (i) through (iv) above being collectively referred to as “Restricted Payments”), unless) if, at the time of of, and after giving effect to, the proposed Restricted Payment: (A) a Default or Event of Default shall have occurred and be continuing, (B) the Company could not Incur at least $1.00 of Indebtedness under the first paragraph 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 evidenced by a Board Resolution) made after the Closing Date 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 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 Net Cash Proceeds received by the Company after the Closing Date 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 Net Cash Proceeds are used to Incur Indebtedness pursuant to clause (viii) of the second paragraph under Section 4.03, plus (3) an amount equal to the net reduction in 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. The Company will not, and will not permit any of its Restricted Subsidiaries toSubsidiary, 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 with respect to its Restricted Subsidiaries’ Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company or its Restricted Subsidiaries) or to the direct or indirect holders of the Company’s or any of its Restricted Subsidiaries’ Equity Interests in their capacity as such Capital Stock (other than (x) dividends or distributions payable solely in Equity Interests 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 Company or dividends, payments or distributions payable to fiscal quarter beginning immediately following the Company or a Guarantor, or payable Closing Date) held by a Restricted Subsidiary that is not a Guarantor to any Restricted Subsidiary); (ii) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or its Restricted Subsidiaries (Persons other than any such Equity Interests owned by the Company or any Guarantor); (iii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness of the Company or any of its Restricted Subsidiaries Subsidiaries, (ii) purchase, redeem, retire or otherwise acquire for value any shares of Capital Stock of the Company, any 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 contractually subordinated in right of payment to the Notes or of any Guarantor that is subordinated to the Note Guarantee (excluding 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 intercompany Indebtedness between or among the Company and any case due within one year of the Guarantors), except a payment date of interest or principal at the Stated Maturity thereof (for purposes of clarity, the Existing Notes will not be deemed to be contractually subordinated to the Notes); acquisition) or (iv) make any Restricted Investment Investment, other than a Permitted Investment, in any Person (all such payments and or any other actions set forth described in clauses (i) through (iv) above being collectively referred to as “"Restricted Payments”), unless") if, at the time of of, and after giving effect to such to, the proposed Restricted Payment: (A) a Default or Event of Default shall have occurred and be continuing, (B) except with respect to Investments and dividends on the Common Stock of any Guarantor, the Company could not Incur at least $1.00 of Indebtedness under the first paragraph 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 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 plus (2) the aggregate Net Cash Proceeds received by the Company or any Guarantor after the Closing Date 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 Net Cash Proceeds are used to Incur Indebtedness pursuant to clause (viii) of the second paragraph 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 shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly: , (i) declare or pay any dividend or make any other payment or distribution on account of the Company’s or any in respect of its Restricted Subsidiaries’ Equity Interests Capital Stock (including, without limitation, including any payment in connection with any merger or consolidation involving the Company or its Restricted SubsidiariesCompany) or to the direct or indirect holders of the Company’s or any of its Restricted Subsidiaries’ Equity Interests Capital Stock in their capacity capacities as such (other than except dividends or distributions payable solely in Equity Interests Capital Stock (other than Disqualified Stock) of the Company or dividendsin options, payments warrants or other rights to purchase its Capital Stock (other than Disqualified Stock) and except dividends or distributions payable to the Company or a Guarantor, or payable by a any Restricted Subsidiary that is not a Guarantor to (and, if the Restricted Subsidiary making such dividends or distributions has any stockholders other than the Company or another Restricted Subsidiary, to such stockholders on no more than a pro rata basis, measured by value); ), (ii) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests Capital Stock of the Company or its Restricted Subsidiaries (other than any such Equity Interests owned by Affiliate of the Company or any Guarantor); Company, (iii) make any payment on or with respect topurchase, or purchaserepurchase, redeem, defease or otherwise acquire or retire for value value, prior to scheduled maturity, scheduled repayment or scheduled sinking fund payment, any Indebtedness of Subordinated Obligations (other than (A) from the Company or any a Restricted Subsidiary or (B) the purchase, repurchase, redemption, defeasance or other acquisition or retirement of its Restricted Subsidiaries that is contractually subordinated to the Notes Subordinated Obligations purchased in anticipation of satisfying a sinking fund obligation, principal installment or any Note Guarantee (excluding any intercompany Indebtedness between or among the Company and any final maturity, in each case due within one year of the Guarantors)date of such purchase, except a payment of interest repurchase, redemption, defeasance or principal at the Stated Maturity thereof (for purposes of clarity, the Existing Notes will not be deemed to be contractually subordinated to the Notes); other acquisition or retirement or (iv) make any Restricted Investment (all any such payments and dividend, distribution, purchase, redemption, repurchase, defeasance, other actions set forth in clauses (i) through (iv) above acquisition, retirement or Restricted Investment being collectively herein referred to as a “Restricted PaymentsPayment”), unless, ) if at the time of and after giving effect to the Company or such Restricted Subsidiary makes such Restricted Payment:

Limitation on Restricted Payments. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly: , (i) declare or pay any dividend or make any other payment or distribution on account of the Company’s 's or any of its Restricted Subsidiaries’ Subsidiary's Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company or its Restricted Subsidiariesconsolidation) or to the direct or indirect holders of the Company’s or any of its Restricted Subsidiaries’ Equity Interests in their capacity as such (other than dividends or distributions (A) paid or payable in Equity Interests (other than Disqualified Stock) of the Company or dividends, payments (B) paid or distributions payable to the Company or a Guarantor, or payable by a Restricted any Subsidiary that is not a Guarantor to any Restricted Subsidiary)of the Company; (ii) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or its Restricted Subsidiaries any direct or indirect parent of the Company or 19 124 other Affiliate of the Company or any Subsidiary of the Company (other than any such Equity Interests owned by the Company or any GuarantorSubsidiary 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 principal payment on or with respect toon, or 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 Event of Default is continuing or would result therefrom, any such payment, purchase, redemption, defeasance or other acquisition or retirement for value 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 was issued and (2) the Company or any has purchased all Notes properly tendered pursuant to Section 4.1 resulting from such Change of its Restricted Subsidiaries that is contractually subordinated to the Notes or any Note Guarantee (excluding any intercompany Indebtedness between or among the Company and any of the Guarantors), except a payment of interest or principal at the Stated Maturity thereof (for purposes of clarity, the Existing Notes will not be deemed to be contractually subordinated to the NotesControl); or (iv) make any Restricted Investment (all such payments and other actions set forth in clauses (i) through (iv) above being collectively referred to as “"Restricted Payments”"), unless, at the time of and after giving effect to such Restricted Payment:

Limitation on Restricted Payments. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries toSubsidiaries, 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 in respect of its Restricted Subsidiaries’ Equity Interests Capital Stock (including, without limitation, including any payment in connection with any merger or consolidation involving the Company or its Restricted Subsidiaries) or to the direct or indirect holders of the Company’s or any of its Restricted Subsidiaries’ Equity Interests in their capacity as such ) except (other than A) dividends or distributions payable in Equity Interests its Capital Stock (other than Disqualified Stock) of the Company or dividendsin options, payments warrants or other rights to purchase such Capital Stock and (B) dividends or distributions payable to the Company or a GuarantorSubsidiary of the Company (and, or payable by a Restricted if such Subsidiary that is not a Guarantor Wholly Owned Subsidiary, to any Restricted Subsidiaryits other stockholders on a pro rata basis or on a basis no more favorable to such other stockholders); , (ii) purchase, redeem redeem, retire or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving Capital Stock of the Company) any Equity Interests Company held by Persons other than a Subsidiary of the Company 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 Restricted Subsidiaries Capital Stock (other than any such Equity Interests owned by the Company or any GuarantorDisqualified Stock); ), (iii) make any payment on or with respect topurchase, or purchaserepurchase, redeem, defease or otherwise acquire or retire for value value, prior to scheduled maturity, scheduled repayment or scheduled sinking fund payment, any Subordinated Obligations (other than the purchase, repurchase or other acquisition of Subordinated Obligations purchased in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case due within one year of the date of acquisition) or (iv) make any Investment (other than a Permitted Investment) in any Person (any such dividend, distribution, purchase, redemption, repurchase, defeasance, other acquisition, retirement or Investment being herein referred to as a "Restricted Payment"), if at the time the Company or such Subsidiary makes such Restricted Payment: (1) a Default or Event of Default shall have occurred and be continuing (or would result therefrom); or (2) the Company is not able to incur an additional $1.00 of Indebtedness pursuant to Section 4.3(a); 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 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 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 or similar trust subsequent to the Issue Date; provided, however, that if such plan or trust Incurs any Indebtedness of to or Guaranteed by the Company or any of its Restricted Subsidiaries that 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 contractually subordinated reduced on the Company's balance sheet upon the conversion or exchange (other than by a Subsidiary of the Company) subsequent to the Notes 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); and (E) the amount equal to the net reduction in Investments (other than Permitted Investments) made by the Company or any Note Guarantee (excluding of its Subsidiaries in any intercompany Indebtedness between Person resulting from repurchases or among 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 and or any Subsidiary of the Guarantors)Company; provided, except a payment however, that no amount shall be included under this clause (E) of interest or principal at the Stated Maturity thereof (for purposes of clarity, the Existing Notes will not be deemed to be contractually subordinated this Section 4.4(a) to the Notes); or (iv) make any Restricted Investment (all such payments and other actions set forth extent it is already included in clauses (i) through (iv) above being collectively referred to as “Restricted Payments”), unless, at the time of and after giving effect to such Restricted Payment:Consolidated Net Income.

Limitation on Restricted Payments. The Company will not, --------------------------------- and will not permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly: , (i) declare or pay any dividend or make any other payment or distribution on account of the Company’s or any of with respect to its Restricted Subsidiaries’ Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company or its Restricted Subsidiaries) or to the direct or indirect holders of the Company’s or any of its Restricted Subsidiaries’ Equity Interests in their capacity as such Capital Stock (other than (x) dividends or distributions payable solely in Equity Interests 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 Company or dividends, payments or distributions payable to fiscal quarter beginning immediately following the Company or a Guarantor, or payable Closing Date) held by a Restricted Subsidiary that is not a Guarantor to any Restricted Subsidiary); (ii) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or its Restricted Subsidiaries (Persons other than any such Equity Interests owned by the Company or any Guarantor); (iii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness of the Company or any of its Restricted Subsidiaries Subsidiaries, (ii) purchase, redeem, retire or otherwise acquire for value any shares of Capital Stock of (A) the Company or an Unrestricted Subsidiary (including options, warrants or other rights to acquire such shares of Capital Stock) held by 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 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 contractually subordinated in right of payment to the Notes or any Note Guarantee (excluding any intercompany Indebtedness between or among the Company and any of the Guarantors)other than, except a payment of interest or principal at the Stated Maturity thereof (for purposes of clarityin each case, the Existing Notes will not be deemed to be contractually subordinated to purchase, repurchase or acquisition of Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in any case due within one year after the Notes); date of such purchase, repurchase or acquisition) or (iv) make any Restricted Investment Investment, other than a Permitted Investment, in any Person (all such payments and or any other actions set forth described in clauses (i) through (iv) above being collectively referred to as “"Restricted Payments”), unless") if, at the time of of, and after giving effect to such to, the proposed Restricted Payment:: (A) a Default or Event of Default shall have occurred and be continuing, (B) the Company could not Incur at least $1.00 of Indebtedness under the first paragraph of Section 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 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) (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 4.17 plus (2) the aggregate Net Cash Proceeds received by the Company after the Closing Date 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 Net Cash Proceeds are used to Incur Indebtedness pursuant to clause (viii) of the second paragraph of Section 4.03(a), plus (3) an amount equal to the net reduction in Investments (other than reductions in Permitted Investments 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 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. The Company WCI will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly: , (i) declare or pay any dividend or make any other payment or distribution on account of the Company’s or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company or its Restricted Subsidiaries) or to the direct or indirect holders of the Company’s or any of its Restricted Subsidiaries’ Equity Interests in their capacity as such Capital Stock (other than dividends or distributions payable solely in Equity Interests 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 the Company Capital Stock) other than such Capital Stock held by WCI or dividends, payments any of its Restricted Subsidiaries (and other than pro rata dividends or distributions payable to the Company or a Guarantor, or payable by a on Common Stock of Restricted Subsidiary that is not a Guarantor to any Restricted SubsidiarySubsidiaries); (ii) purchaserepurchase, redeem redeem, retire or otherwise acquire or retire for value any shares of Capital Stock of WCI (includingincluding options, without limitation, in connection with any merger warrants or consolidation involving the Companyother rights to acquire such shares of Capital Stock) any Equity Interests of the Company or its Restricted Subsidiaries (held by Persons other than any such Equity Interests owned by the Company or any Guarantor)Wholly Owned Restricted Subsidiaries of WCI; (iii) make any payment on voluntary or with respect tooptional principal payment, or purchasevoluntary or optional redemption, redeemrepurchase, defease defeasance, or otherwise acquire other acquisition or retire retirement for value any value, of Indebtedness of the Company or any of its Restricted Subsidiaries WCI that is contractually subordinated in right of payment to the Notes or any Equipment Note Guarantee (excluding any intercompany Indebtedness between or among the Company and any of the Guarantors), except a payment of interest or principal at the Stated Maturity thereof (for purposes of clarity, the Existing Notes will not be deemed to be contractually subordinated to the Notes)Guarantee; or (iv) make any Restricted Investment Investment, other than a Permitted Investment, in any Person (all such payments and or any other actions set forth described in clauses (i) through (iv) above being collectively referred to as “"Restricted Payments”), unless") if, at the time of of, and after giving effect to such to, the proposed Restricted Payment: (A) a Default or Event of Default shall have occurred and be continuing, (B) except with respect to any Investment (other than an Investment consisting of the designation of a Restricted Subsidiary as an Unrestricted Subsidiary), WCI could not Incur at least $1.00 of Indebtedness under the first paragraph of Section 4.03 or (C) the aggregate amount expended for all Restricted Payments (the amount 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) after the Closing Date 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 such amount) (determined by excluding income resulting from transfers of assets by 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 Net Cash Proceeds received by WCI 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 WCI, 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 Stated Maturity of the Securities) plus (3) an amount equal to the net reduction in Investments (other than reductions in Permitted Investments 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 WCI or any Restricted Subsidiary (except to the extent any such payment 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 the amount of Investments previously made by WCI and its Restricted Subsidiaries in such Person. The foregoing provision shall not be violated by reason of:

Limitation on Restricted Payments. (a) The Company will not, and will not permit any of its Restricted Subsidiaries toSubsidiaries, 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 in respect of its Restricted Subsidiaries’ Equity Interests Capital Stock (including, without limitation, including any payment in connection with any merger or consolidation involving the Company or its Restricted Subsidiaries) or to the direct or indirect holders of the Company’s or any of its Restricted Subsidiaries’ Equity Interests in their capacity as such ) except (other than A) dividends or distributions payable in Equity Interests its Capital Stock (other than Disqualified Stock) of the Company or dividendsin options, payments warrants or other rights to purchase such Capital Stock and (B) dividends or distributions payable to the Company or a Guarantor, or payable by a Restricted Subsidiary that of the Company (and if such Restricted Subsidiary is not a Guarantor Wholly-Owned Subsidiary, to any Restricted Subsidiaryits other holders of Capital Stock on a pro rata basis); , (ii) purchase, redeem redeem, retire or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving Capital Stock of the Company) any Equity Interests Company held by Persons other than a Restricted Subsidiary of the Company 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 Restricted Subsidiaries Capital Stock (other than any such Equity Interests owned by the Company or any GuarantorDisqualified Stock); ), (iii) make any payment on or with respect topurchase, or purchaserepurchase, redeem, defease or otherwise acquire or retire for value value, prior to scheduled maturity, scheduled repayment or scheduled sinking fund payment, any Indebtedness Subordinated Obligations (other than the purchase, repurchase or other acquisition of Subordinated Obligations purchased in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case due within one year of the Company date of purchase, repurchase or any of its Restricted Subsidiaries that is contractually subordinated to the Notes or any Note Guarantee (excluding any intercompany Indebtedness between or among the Company and any of the Guarantors), except a payment of interest or principal at the Stated Maturity thereof (for purposes of clarity, the Existing Notes will not be deemed to be contractually subordinated to the Notes); acquisition) or (iv) make any Restricted Investment (all other than a Permitted Investment) in any Person (any such payments and dividend, distribution, purchase, redemption, repurchase, defeasance, other actions set forth acquisition, retirement or Investment being herein referred to in clauses (i) through (iv) above being collectively referred to as “Restricted Payments”a "RESTRICTED PAYMENT"), unless, if at the time of and after giving effect to the Company or such Restricted Subsidiary makes such Restricted Payment:: (1) a Default or Event of Default shall have occurred and be continuing (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) 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 to the extent (x) used to redeem Securities or (y) 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); and (D) the amount equal to the net reduction in Investments (other than Permitted Investments) made by the Company or any of its Restricted Subsidiaries in any Person resulting from (i) 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 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 (ii) the redesignation of Unrestricted Subsidiaries as Restricted Subsidiaries (valued in each case as provided in the definition of "Investment") not to exceed, in the case of any Unrestricted Subsidiary, the amount of Investments (excluding Permitted Investments) previously made by the Company or any Restricted Subsidiary in such 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. The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, directly or indirectly: (i) declare or pay any dividend or make any other payment or distribution on account of the Company’s 's or any of its Restricted Subsidiaries’ ' Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company or its Restricted Subsidiariesother than: (1) or to the direct or indirect holders of the Company’s or any of its Restricted Subsidiaries’ Equity Interests in their capacity as such (other than dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company or dividends, payments Company; (2) dividends or distributions payable by a Restricted Subsidiary of the Company, provided that to the extent that a portion of such dividend or distribution is paid to a holder of Equity Interests of a Restricted Subsidiary other than the Company or a GuarantorRestricted Subsidiary, such portion of such dividend or payable by a Restricted Subsidiary that distribution is not a Guarantor to any greater than such holder's PRO RATA aggregate common equity interest in such Restricted 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 or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or its any Restricted Subsidiaries Subsidiary or other Affiliate of the Company (other than (A) any such Equity Interests owned by the Company or any GuarantorRestricted Subsidiary of the Company, (B) any Existing Preferred OP Units and (C) any Preferred OP Units issued in compliance with Section 4.9 hereof); (iii) make any payment on or with respect to, or purchase, redeem, defease redeem or otherwise acquire or retire for value any Indebtedness of the Company or any of its Restricted Subsidiaries Subsidiary that is contractually subordinated or junior in right of payment, by its terms, to the Notes or any Note Guarantee (excluding any intercompany Indebtedness between thereof prior to the scheduled final maturity or among the Company and any of the Guarantors), except a sinking fund payment dates for payment of principal and interest in accordance with the original documentation for such subordinated or principal at the Stated Maturity thereof (for purposes of clarity, the Existing Notes will not be deemed to be contractually subordinated to the Notes)junior Indebtedness; or (iv) make any Restricted Investment (all such payments and other actions set forth in clauses (i) through (iv) above being collectively referred to as “Restricted Payments”"RESTRICTED PAYMENTS"), unless, at the time of and after giving effect to such Restricted Payment:

Limitation on Restricted Payments. The Company will not, and any Guarantor or Restricted Subsidiary will not permit any of its Restricted Subsidiaries to, directly or indirectly: indirectly (ia) declare or pay any dividend or make any payment, distribution or return of capital, other payment than, in the case of a Guarantor or distribution Restricted Subsidiary, to the Company or any other Guarantor or Restricted Subsidiary, (x) on account of the Company’s or any of its Guarantor’s or Restricted Subsidiaries’ Equity Interests Subsidiary’s Capital Stock or (including, without limitation, any payment in connection with any merger or consolidation involving the Company or its Restricted Subsidiariesy) or to the direct or indirect holders of the Company’s or any of its Guarantor’s or Restricted Subsidiaries’ Equity Interests Subsidiary’s Capital Stock in their capacity as such holders or (other than dividends or distributions payable in Equity Interests (other than Disqualified Stockb) of the Company or dividends, payments or distributions payable to the Company or a Guarantor, or payable by a Restricted Subsidiary that is not a Guarantor to any Restricted Subsidiary); (ii) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or its Restricted Subsidiaries (other than any such Equity Interests owned by the Company or any Guarantor); (iii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Subordinated Indebtedness (it being understood that payments of regularly scheduled principal and interest shall be permitted and the PEAK6 Debt may be redeemed in connection with a Qualified Public Company Event) or Capital Stock of the Company or any Guarantor or Restricted Subsidiary held by Persons (other than repurchases of its stock from former employees, officers, directors, consultants or other persons performing services for the Company or any Guarantor or Restricted Subsidiaries that is contractually subordinated Subsidiary pursuant to the Notes terms of stock repurchase plans, employee restricted stock agreements or similar agreements under which the Company or any Note Guarantee (excluding any intercompany Indebtedness between Guarantor or among Restricted Subsidiary has the option to repurchase such shares upon the occurrence of certain events, such as the termination of employment or service, or pursuant to a right of first refusal in an amount not to exceed $500,000 of the Capital Stock of the Company and or Guarantor or Restricted Subsidiary then-outstanding in any of the Guarantors), except a payment of interest or principal at the Stated Maturity thereof fiscal year) (for purposes of clarity, the Existing Notes will not be deemed to be contractually subordinated to the Notes); or (iv) make any Restricted Investment (all such payments as described in parts (a) and other actions set forth in clauses (ib) through (iv) above being collectively referred to as hereof, “Restricted Payments”), unless, at the time of and after giving effect to such Restricted Payment:.

Limitation on Restricted Payments. (a) The Company will shall not, and will shall not permit any Subsidiary of its Restricted Subsidiaries the Company (other than a Non-Recourse Subsidiary) to, directly or indirectly: , (i) declare or pay any dividend or make any other payment or distribution on account of the Company’s or any in respect of its Restricted Subsidiaries’ Equity Interests Capital Stock (including, without limitation, including any payment in connection with any merger or consolidation involving the Company or its Restricted SubsidiariesCompany) or to the direct or indirect holders of the Company’s or any of its Restricted Subsidiaries’ Equity Interests in their capacity as such Capital Stock (other than except dividends or distributions payable solely in Equity Interests (its Non-Convertible Capital Stock or in options, warrants or other than Disqualified Stock) of the Company or dividends, payments rights to purchase its Non-Convertible Capital Stock and except dividends or distributions payable to the Company or a GuarantorSubsidiary of the Company and, or payable by if a Restricted Subsidiary that of the Company is not wholly owned, to its equity holders as a Guarantor to any Restricted Subsidiarywhole, in accordance with their holdings); , (ii) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving Capital Stock of the Company) any Equity Interests of the Company or its Restricted Subsidiaries (other than any such Equity Interests owned by the Company or any Guarantor); , (iii) make any payment on or with respect topurchase, or purchaserepurchase, redeem, defease or otherwise acquire or retire for value prior to any Indebtedness scheduled maturity, scheduled repayment or scheduled sinking fund payment, the principal amount of any Subordinated Obligations, other than (x) Subordinated Obligations with respect to Debt permitted under Section 4.09(b)(3) hereof or (y) the purchase, repurchase, redemption, defeasance, other acquisition or redemption for value of the principal amount of any Subordinated Obligations (other than Non-Contributed Existing Subordinated Loans) in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case due within one year of the date of purchase, repurchase, redemption or acquisition, (iv) purchase, repurchase, redeem, defease or otherwise acquire or retire for value at any time (including at scheduled maturity) the principal amount of any Non-Contributed Existing Subordinated Loan, or (v) make any Investment, other than a Permitted Investment (any such dividend, distribution, purchase, redemption, repurchase, defeasance, other acquisition, retirement or Investment being herein referred to as a “Restricted Payment”), if at the time the Company or any of its such Subsidiary makes such Restricted Subsidiaries that is contractually subordinated to the Notes or any Note Guarantee (excluding any intercompany Indebtedness between or among the Company and any of the Guarantors), except a payment of interest or principal at the Stated Maturity thereof (for purposes of clarity, the Existing Notes will not be deemed to be contractually subordinated to the Notes); or (iv) make any Restricted Investment (all such payments and other actions set forth in clauses (i) through (iv) above being collectively referred to as “Restricted Payments”), unless, at the time of Payment and after giving effect to thereto (the Fair Market Value of any such Restricted Payment:, if other than in cash, shall be determined in accordance with the provisions herein):

Limitation on Restricted Payments. The Company will and the Parent shall not, and will shall not permit any of its their respective Restricted Subsidiaries to, directly or indirectly: (i) declare or pay any dividend or make any other payment or distribution on account of the Company’s 's, the Parent's or any of its their respective Restricted Subsidiaries’ ' Equity Interests Interests, other than: (including, without limitation, any payment in connection with any merger or consolidation involving the Company or its Restricted Subsidiaries1) or to the direct or indirect holders of the Company’s or any of its Restricted Subsidiaries’ Equity Interests in their capacity as such (other than dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company or dividends, payments the Parent; (2) dividends or distributions payable to the Company or a Guarantor, or payable by a Restricted Subsidiary of the Company or the Parent (other than the Company), provided that to the extent that a portion of such dividend or distribution is paid to a holder of Equity Interests of a Restricted Subsidiary other than the Company, the Parent or a Restricted Subsidiary of the Company or the Parent, such portion of such dividend or distribution is not a Guarantor to any greater than such holder's pro rata aggregate common equity interest in such Restricted Subsidiary); and (3) dividends or distributions payable on Existing Preferred OP Units and Preferred OP Units issued in compliance with Section 4.9 hereof; (ii) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company, the Parent or any Restricted Subsidiary of the Company or its Restricted Subsidiaries (the Parent or other Affiliate of the Company or the Parent, other than (A) any such Equity Interests owned by the Company, the Parent or any Restricted Subsidiary of the Company or the Parent; (B) any Guarantor)Existing Preferred OP Units and (C) any Preferred OP Units issued in compliance with Section 4.9 hereof; (iii) make any payment on or with respect to, or purchase, redeem, defease redeem or otherwise acquire or retire for value any Indebtedness of the Company, the Parent or any Restricted Subsidiary of the Company or any of its Restricted Subsidiaries the Parent that is contractually subordinated or junior in right of payment, by its terms, to the Notes or any Note Guarantee (excluding any intercompany Indebtedness between thereof prior to the scheduled final maturity or among the Company and any of the Guarantors), except a sinking fund payment dates for payment of principal and interest in accordance with the original documentation for such subordinated or principal at the Stated Maturity thereof (for purposes of clarity, the Existing Notes will not be deemed to be contractually subordinated to the Notes)junior Indebtedness; or (iv) make any Restricted Investment (all such payments and other actions set forth in clauses (i) through (iv) above being collectively referred to as “"Restricted Payments”"), unless, at the time of and after giving effect to such Restricted Payment:

Limitation on Restricted Payments. The Company will shall not, and will shall not cause or permit any of its Restricted Subsidiaries to, directly or indirectly: , (ia) declare or pay any dividend or make any other payment or distribution on account of the Company’s or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company or its Restricted Subsidiaries) or to the direct or indirect holders of the Company’s or any of its Restricted Subsidiaries’ Equity Interests in their capacity as such (other than dividends or distributions payable solely in Equity Interests (other than Disqualified StockQualified Capital Stock of the Company) on or in respect of shares of the Capital Stock of the Company or dividendsany of its Restricted Subsidiaries, payments or distributions payable to the Company or a Guarantor, or payable by a Restricted Subsidiary that is not a Guarantor to any Restricted Subsidiary); (iib) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or its Restricted Subsidiaries (other than any such Equity Interests owned by the Company or any Guarantor); (iii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness Capital Stock of the Company or any of its Restricted Subsidiaries or any warrants, rights or options to purchase or acquire shares of any class of such Capital Stock, other than (i) the exchange of such Capital Stock or any warrants, rights or options to acquire shares of any class of such Capital Stock for Qualified Capital Stock of the Issuer or warrants, rights or options to acquire Qualified Capital Stock of the Company or (ii) in the case of any purchase, redemption or other acquisition or retirement for value of Disqualified Capital Stock or any warrants, rights or options to purchase or acquire shares of any class of such Disqualified Capital Stock, for Capital Stock or warrants, rights or options to acquire Capital Stock of the Company; provided that if such Capital Stock is Disqualified Capital Stock, such Disqualified Capital Stock does not have a liquidation preference greater than the liquidation preference of the Disqualified Capital Stock being purchased, redeemed or acquired or retired or contain provisions pursuant to which such Disqualified Capital Stock matures or is mandatorily redeemable or is redeemable at the sole option of the holder thereof, in whole or in part, prior to the Disqualified Capital Stock being purchased, redeemed or acquired or retired, (c) make any principal payment on, purchase, decrease, redeem, prepay or otherwise acquire or retire or decrease for value, prior to any scheduled final maturity, scheduled repayment or scheduled sinking fund payment, any Indebtedness that is contractually subordinated subordinate or junior in right of payment to the Notes or any Note Guarantee (excluding any intercompany Indebtedness between or among the Company and any of Guarantees as the Guarantors), except a payment of interest or principal at the Stated Maturity thereof (for purposes of clarity, the Existing Notes will not case may be deemed to be contractually subordinated to the Notes); or (ivd) make any Restricted Investment (all such payments and other than Permitted Investments) (each of the foregoing actions set forth in clauses (ia), (b), (c) through and (ivd) above being collectively referred to as “a "Restricted Payments”Payment"), unless, if at the time of and such Restricted Payment or immediately after giving effect thereto, (i) a Default or an Event of Default shall have occurred and be continuing or (ii) the Company is not able to incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) in compliance with Section 4.12 or (iii) the aggregate amount of Restricted Payments (including such proposed Restricted Payment) made subsequent to the Issue Date (the amount expended for such purposes if other than in cash, being the Fair Market Value of such property) shall exceed the sum of: (x) 50% of the cumulative Consolidated Net Income (or if cumulative Consolidated Net Income shall be a loss, minus 100% of such loss) of the Company earned subsequent to June 30, 1997 and on or prior to the date the Restricted Payment occurs (the "Reference Date") (treating for such purposes such period as a single accounting period); plus (y) 100% of the aggregate net cash proceeds received by the Company (including the Fair Market Value of marketable securities) from any Person (other than a Restricted Subsidiary of the Company) from the issue and sale subsequent to the Issue Date and on or prior to the Reference Date of Qualified Capital Stock of the Company (including pursuant to a capital contribution and excluding any Qualified Capital Stock issued upon conversion of the Company's outstanding 7 1/4% Convertible Subordinated Debentures due 2007 (the "Debentures") and any Qualified Capital Stock issued pursuant to clause (b) of this paragraph); plus (z) without duplication of any amounts included in clause (iii) (y) above, an amount equal to the net reduction in Investments in Unrestricted Subsidiaries resulting from dividends, interest payments, repayments of loans or advances, or other transfers of cash, in each case to the Company or to any Wholly Owned Restricted Subsidiary of the Company from Unrestricted Subsidiaries (but without duplication of any such amount included in calculating cumulative Consolidated Net Income of the Issuer), or from redesignation of Unrestricted Subsidiaries as Restricted Subsidiaries (in each case valued as provided in the definition of "Investments"), not to exceed, in the case of any Unrestricted Subsidiary, the amount of Investments previously made by the Company or any Restricted Subsidiary in such Unrestricted Subsidiary and which was treated as a Restricted Payment under this Indenture. Notwithstanding the foregoing, the provisions set forth in the immediately preceding paragraph shall not prohibit: (1) the payment of any dividend within 60 days after the date of declaration of such dividend if the dividend would have been permitted on the date of declaration; (2) if no Default or Event of Default shall have occurred and be continuing, the payment, purchase, defeasance, redemption, prepayment, acquisition or retirement or decrease of any shares of Capital Stock of the Company, either (i) solely in exchange for shares of Qualified Capital Stock of the Company or (ii) through the application of net proceeds of a substantially concurrent sale for cash (other than to a Restricted Subsidiary of the Company) of shares of Qualified Capital Stock of the Company; (3) if no Default or Event of Default shall have occurred and be continuing, the payment, purchase, defeasance, redemption, prepayment, acquisition or retirement or decrease of any Indebtedness of the Issuer that is subordinate or junior in right of payment to the Notes either (i) solely in exchange for shares of Qualified Capital Stock of the Company or Indebtedness that is subordinated or junior in right of payment to the Notes and has a Weighted Average Life to Maturity and final maturity not sooner than the Weighted Average Life to Maturity and final maturity prior to such exchange, or (ii) through the application of net proceeds of a substantially concurrent sale for cash (other than to a Restricted Subsidiary of the Company) of (A) shares of Qualified Capital Stock of the Company or (B) Refinancing Indebtedness; (4) if no Default or Event of Default shall have occurred and be continuing, repurchases by the Company of Common Stock of the Company from employees of the Company or any of its Subsidiaries or their authorized representatives upon the death, disability or termination of employment of such employees, in an aggregate amount not to exceed the sum of (x) $2 million in any calendar year and (y) proceeds received by the Company or any of its Subsidiaries in connection with any "key-man" life insurance policies which are used to make such repurchases; and provided that the cancellation of Indebtedness owing to the Company from members of management of the Company in connection with a repurchase of Common Stock of the Company pursuant to this clause 4 will not be deemed to constitute a Restricted Payment under this Indenture; (5) repurchases of Capital Stock deemed to occur upon the exercise of stock options if such Capital Stock represents a portion of the exercise price thereof; (6) if no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof, other Restricted Payments in an aggregate amount not to exceed $15 million (including, with respect to Investments (other than Permitted Investments), amounts then outstanding); and (7) any payments made in respect of Capital Stock of a Restricted Subsidiary paid to minority holders thereof in connection with pro rata distributions on such Capital Stock to the Company or a Wholly Owned Restricted Subsidiary of the Company. In determining the aggregate amount of Restricted Payments made subsequent to the Issue Date in accordance with clause (iii) of the immediately preceding paragraph, amounts expended pursuant to clauses (1) (to the extent the declaration thereof has not previously been included in such aggregate amount), (2)(ii), (4) and (6) shall be included in such calculation. Not later than the date of making any Restricted Payment:, the Company shall deliver to the Trustee an Officers' Certificate stating that such Restricted Payment complies with this Indenture and setting forth in reasonable detail the basis upon which the required calculations were computed, which calculations may be based upon the Company's latest available internal quarterly financial statements.

Limitation on Restricted Payments. The Company will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly: , (i) declare or pay any dividend or make any other payment or distribution on account of the Company’s or any of with respect to its Restricted Subsidiaries’ Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company or its Restricted Subsidiaries) or to the direct or indirect holders of the Company’s or any of its Restricted Subsidiaries’ Equity Interests in their capacity as such Capital Stock (other than (x) dividends or distributions payable solely in Equity Interests shares of its Capital Stock (other than Disqualified Stock) or in options, warrants or other rights to acquire shares of the Company or dividends, payments such Capital Stock and (y) pro rata dividends or distributions payable to the Company or a Guarantor, or payable by a Restricted Subsidiary that is not a Guarantor to any Restricted Subsidiary); (ii) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests on Common Stock of the Company or its Restricted Subsidiaries (held by minority stockholders) held by Persons other than any such Equity Interests owned by the Company or any Guarantor); (iii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness of the Company or any of its Restricted Subsidiaries Subsidiaries, (ii) purchase, redeem, retire or otherwise acquire for value any shares of Capital Stock of (A) the Company or an Unrestricted Subsidiary (including options, warrants or other rights to acquire such shares of Capital Stock) held by 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 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 contractually subordinated in right of payment to the Notes or any Note Guarantee (excluding any intercompany Indebtedness between or among the Company and any of the Guarantors), except a payment of interest or principal at the Stated Maturity thereof (for purposes of clarity, the Existing Notes will not be deemed to be contractually subordinated to the Notes); or (iv) make any Restricted Investment Investment, other than a Permitted Investment, in any Person (all such payments and or any other actions set forth described in clauses (i) through (iv) above being collectively referred to as “being, collectively, "Restricted Payments”), unless") if, at the time of of, and after giving effect to such to, the proposed Restricted Payment: (A) a Default or Event of Default shall have occurred and be continuing, (B) the Company could not Incur at least $1.00 of Indebtedness under the first paragraph of Section 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 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 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 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 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) 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 EXHIBIT 4.17 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 plus (4) $10Emillion. The foregoing provision shall not be violated by reason of:

Limitation on Restricted Payments. [ADD: Intentionally Omitted.] [DELETE: The Company will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly: , (i) declare or pay any dividend or make any other payment or distribution on account of the Company’s or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company or its Restricted Subsidiaries) or to the direct or indirect holders of the Company’s or any of its Restricted Subsidiaries’ Equity Interests in their capacity as such Capital Stock (other than dividends or distributions payable solely in Equity Interests shares of its or such Subsidiary's Capital Stock (other than Disqualified Redeemable Stock) of the Company same class held by such holders or dividendsin options, payments warrants or distributions payable other rights to acquire such shares of Capital Stock) held by Persons other than the Company or a Guarantor, or payable by a Restricted Subsidiary that is not a Guarantor to any another Restricted Subsidiary); , (ii) purchase, redeem redeem, retire or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving shares of Capital Stock of the Company, any Restricted Subsidiary or any Unrestricted Subsidiary (including options, warrants or other rights to acquire such shares of Capital Stock) any Equity Interests of held by Persons other than the Company or its another Restricted Subsidiaries (other than any such Equity Interests owned by the Company or any Guarantor); Subsidiary, (iii) make any payment on voluntary or with respect tooptional principal payment, or purchasevoluntary or optional redemption, redeemrepurchase, defease defeasance, or otherwise acquire other acquisition or retire retirement for value any value, of Indebtedness of the Company or any of its Restricted Subsidiaries that is contractually subordinated in right of payment to the Notes or any Note Guarantee (excluding any intercompany Indebtedness between or among the Company and any of the Guarantors)Securities, except a payment of interest or principal at the Stated Maturity thereof (for purposes of clarity, the Existing Notes will not be deemed to be contractually subordinated to the Notes); or (iv) make any Restricted Investment in any Unrestricted Subsidiary (all such payments and or any other actions set forth described in clauses (i) through (iv) above being collectively referred to as “"Restricted Payments”), unless") if, at the time of of, and after giving effect to, the proposed Restricted Payment: (A) a Default or Event of Default shall have occurred and be continuing, (B) the Company could not Incur at least $1.00 of Indebtedness under the first paragraph of Section 3.03 or (C) the aggregate amount expended for all Restricted Payments (the amount 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) after the date of this Indenture 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 such amount) of the Company (determined by excluding income resulting from the transfers of assets received by the Company or a Restricted Subsidiary from an Unrestricted Subsidiary) accrued on a cumulative basis during the period (taken as one accounting period) beginning on April 1, 1994 and ending on the last day of the last fiscal quarter preceding the Transaction Date plus (2) the aggregate net proceeds (including the fair market value of non-cash proceeds as determined in good faith by the Board of Directors whose determination shall be conclusive and evidenced by a Board Resolution) received by the Company from the issuance and sale permitted by this Indenture of its Capital Stock (not including Redeemable Stock) to a Person who is not a Subsidiary of the Company, including an issuance or sale permitted by this Indenture for cash or other property upon the conversion of any Indebtedness of the Company subsequent to the Closing Date, or from the issuance 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 Securities) plus (3) an amount equal to the net reduction in Investments in Unrestricted Subsidiaries 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 from Unrestricted Subsidiaries, or from redesignations of Unrestricted Subsidiaries as Restricted Subsidiaries (valued in each case as provided in the definition of "Investments"), not to exceed in the case of any Unrestricted Subsidiary the amount of Investments previously made by the Company or any Restricted Subsidiary in such Unrestricted Subsidiary plus (4) $75 million. The foregoing provision shall not take into account, and shall not be violated by reason of: (i) the payment of any dividend within 60 days after the date of declaration thereof if, at such date of declaration, such payment would comply with the foregoing provision; (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, with the proceeds of A-18 Indebtedness Incurred under the first paragraph of Section 3.03 or clause (iv) or (x) of the second paragraph of Section 3.03; (iii) the payment of dividends on the Capital Stock of the Company, following any issuance of the Capital Stock of the Company, of up to 6% per annum of the net proceeds received by the Company in such issuance of the Capital Stock of the Company; (iv) the repurchase of shares of, or options to purchase shares of, Common Stock of the Company or any of its Subsidiaries from employees, former employees, directors or former directors of the Company or any of its Subsidiaries (or permitted transferees of such employees, former employees, directors or former directors) pursuant to the terms of the form of agreements or plans (or amendments thereto) under which such Persons purchase or sell, or are granted the option to purchase or sell, shares of such Common Stock; (v) the repurchase, redemption or other acquisition of Capital Stock of the Company 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); (vi) the acquisition of Indebtedness of the Company that 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 Capital Stock of the Company (other than Redeemable Stock); (vii) payments or distributions pursuant to or in connection with a consolidation, merger or transfer of assets that complies with Section 4.01 of this Indenture; (viii) the purchase, redemption, acquisition, cancellation or other retirement for a nominal value per right (as determined in good faith by the Board of Directors) of any rights granted to all the holders of Common Stock of the Company pursuant to any shareholders' rights plan (i.e., a "poison pill") adopted for the purpose (determined in good faith by the Board of Directors) of protecting shareholders from unfair takeover tactics; provided that any such purchase, redemption, acquisition, cancellation or other retirement of such rights shall not be for the purpose of evading the limitations of this Section 3.04 (all as determined in good faith by the Board of Directors); (ix) the purchase of shares of Capital Stock of the Company or any Restricted Subsidiary for the purpose of contributing such shares to the Plans, or permitting the Plans to make payments to participants therein in cash rather than shares of Capital Stock of the Company or such Restricted Payment:Subsidiary; provided that such purchases do not in any one fiscal year of the Company exceed an aggregate amount of $30 million; or (x) the purchase of subordinated Indebtedness pursuant to an "excess proceeds offer" or similar offer after the Company has complied with Section 3.09; and provided that, in the case of clauses (ii) through (iv) and (vi), no Default or Event of Default shall have occurred and be continuing or shall occur as a consequence thereof.] SECTION 3.05. Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. [ADD: Intentionally Omitted.] [DELETE: The Company will not, and will not permit any Restricted Subsidiary (other than a Foreign Subsidiary) to, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to (i) pay dividends or make any other distributions permitted by applicable law on any Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary, (ii) pay any Indebtedness owed to the Company or any other Restricted Subsidiary, (iii) make loans or advances to the Company or any other Restricted Subsidiary or (iv) transfer, subject to certain exceptions, any of its property or assets to the Company or any other Restricted Subsidiary. The foregoing provision shall not restrict or prohibit any encumbrances or restrictions existing: (i) in the Bank Credit Agreement, the 1993 Term Loan Agreement, the Senior Secured Notes (including any agreement pursuant to which the Senior Secured Notes were issued) or any other agreements in effect on the Closing Date, including extensions, refinancings, renewals or replacements thereof; provided that the encumbrances and restrictions in any such extensions, refinancings, renewals or replacements are no less A-19 favorable in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced; (ii) under any other agreement providing for the Incurrence of Indebtedness; provided that the encumbrances and restrictions in any such agreement are no less favorable in any material respect to the Holders than those encumbrances and restrictions contained in the Bank Credit Agreement, the Senior Secured Notes (including any agreement pursuant to which the Senior Secured Notes were issued) or the 1993 Term Loan Agreement as of the Closing Date; (iii) under or by reason of applicable law; (iv) with respect to any Person or the property or assets of such Person acquired by the Company or any Restricted Subsidiary and existing at the time of such acquisition, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Person or the property or assets of such Person so acquired;

Limitation on Restricted Payments. The Company will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly: , (i) declare or pay any dividend or make any other payment or distribution on account of the Company’s or any of with respect to its Restricted Subsidiaries’ Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company or its Restricted Subsidiaries) or to the direct or indirect holders of the Company’s or any of its Restricted Subsidiaries’ Equity Interests in their capacity as such Capital Stock (other than (x) dividends or distributions payable solely in Equity Interests 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 Company or dividends, payments or distributions payable to fiscal quarter beginning immediately following the Company or a Guarantor, or payable Closing Date) held by a Restricted Subsidiary that is not a Guarantor to any Restricted Subsidiary); (ii) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or its Restricted Subsidiaries (Persons other than any such Equity Interests owned by the Company or any Guarantor); (iii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness of the Company or any of its Restricted Subsidiaries Subsidiaries, (ii) purchase, redeem, retire or otherwise acquire for value any shares of Capital Stock of (A) the Company or an Unrestricted Subsidiary (including options, warrants or other rights to acquire such shares of Capital Stock) held by 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 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 contractually subordinated in right of payment to the Notes or any Note Guarantee (excluding any intercompany Indebtedness between or among the Company and any of the Guarantors)other than, except a payment of interest or principal at the Stated Maturity thereof (for purposes of clarityin each case, the Existing Notes will not be deemed to be contractually subordinated to purchase, repurchase or acquisition of Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in any case due within one year after the Notes); date of such purchase, repurchase or acquisition) or (iv) make any Restricted Investment Investment, other than a Permitted Investment, in any Person (all such payments and or any other actions set forth described in clauses (i) through (iv) above being collectively referred to as “"Restricted Payments”), unless") if, at the time of of, and after giving effect to such to, the proposed Restricted Payment: (A) a Default or Event of Default shall have occurred and be continuing, (B) the Company could not Incur at least $1.00 of Indebtedness under the first paragraph 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 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) (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 4.17 plus (2) the aggregate Net Cash Proceeds received by the Company after the Closing Date 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 Net Cash Proceeds are used to Incur Indebtedness pursuant to clause (viii) of the second paragraph of Section 4.03, plus (3) an amount equal to the net reduction in Investments (other than reductions in Permitted Investments 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 is included in the calculation of Adjusted Consolidated Net Income), or from redesignations of Unrestricted Subsidiaries as Restricted Subsidiaries (valued in such 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 shall not, and will shall not permit any of its Restricted Subsidiaries toSubsidiaries, 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 in respect of its Restricted Subsidiaries’ Equity Interests Capital Stock (including, without limitation, including any payment in connection with any merger or consolidation involving the Company or its Restricted Subsidiaries) or to the direct or indirect holders of the Company’s or any of its Restricted Subsidiaries’ Equity Interests in their capacity as such ) except (other than A) dividends or distributions payable in Equity Interests its Capital Stock (other than Disqualified Stock) of the Company or dividendsin options, payments warrants or other rights to purchase such Capital Stock, and (B) dividends or distributions payable to the Company or a Guarantor, or payable any of its Restricted Subsidiaries by a any of its Subsidiaries (and if the Restricted Subsidiary that paying the dividend or making the distribution is not a Guarantor Wholly-Owned Subsidiary, to any Restricted Subsidiaryits other holders of Capital Stock on a pro rata basis); , (ii) purchase, redeem redeem, retire or otherwise acquire or retire for value any Capital Stock of the Company held by Persons other than a Wholly- Owned Subsidiary of the Company (including, without limitation, other than in connection with exchange for Capital Stock of the Company (other than Disqualified Stock)) or any merger or consolidation involving Capital Stock of a Restricted Subsidiary held by any Affiliate of the Company) any Equity Interests , other than a Wholly-Owned Subsidiary (other than in exchange for Capital Stock of the Company or its Restricted Subsidiaries such Subsidiary (other than any such Equity Interests owned by the Company or any GuarantorDisqualified Stock); ), (iii) make any payment on or with respect topurchase, or purchaserepurchase, redeem, defease or otherwise acquire or retire for value value, prior to scheduled maturity, scheduled repayment or scheduled sinking fund payment, any Indebtedness Subordinated Obligations (other than the purchase, repurchase or other acquisition of Subordinated Obligations purchased in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case due within one year of the Company date of purchase, repurchase or any of its Restricted Subsidiaries that is contractually subordinated to the Notes or any Note Guarantee (excluding any intercompany Indebtedness between or among the Company and any of the Guarantors), except a payment of interest or principal at the Stated Maturity thereof (for purposes of clarity, the Existing Notes will not be deemed to be contractually subordinated to the Notes); acquisition) or (iv) make any Restricted Investment (all other than a Permitted Investment) in any Person (any such payments and dividend, distribution, purchase, redemption, repurchase, defeasance, other actions set forth acquisition, retirement or Investment as described in preceding clauses (i) through (iv) above being collectively referred to as “a "Restricted Payments”Payment"), unless, ; if at the time of and after giving effect to the Company or such Restricted Subsidiary makes such Restricted Payment:

Limitation on Restricted Payments. 8.1.3. The Company will not, and will not permit any of its Restricted Subsidiaries toSubsidiary, 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 in respect of its Restricted Subsidiaries’ Equity Interests Capital Stock, as applicable, (including, without limitation, including any payment in connection with any merger or consolidation involving the Company or its Restricted Subsidiaries) or to the direct or indirect holders of the Company’s or any of its Restricted Subsidiaries’ Equity Interests in their capacity as such except: (other than x) dividends or distributions payable solely in Equity Interests Capital Stock of the Company, as applicable, (other than Disqualified Stock) or in options, warrants or other rights to purchase such Capital Stock of the Company or dividends, payments and (y) dividends or distributions payable to the Company or a Guarantor, or payable by a Restricted Subsidiary that of the Company (and, if such Restricted Subsidiary is not directly or indirectly owned 100% by the Company, to its other common stockholders on a Guarantor to any Restricted Subsidiarypro rata basis); , (ii) purchase, redeem redeem, retire or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving of the Company) any Equity Interests Capital Stock of the Company or its Restricted Subsidiaries (held by Persons other than any such Equity Interests owned by the Company or any Guarantor); a Restricted Subsidiary of the Company, (iii) make any payment on or with respect to, or purchase, repurchase, redeem, prepay interest, defease or otherwise acquire or retire for value 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 its Restricted 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 value of Junior Lien Collateral Indebtedness, Senior Unsecured Pari Passu Indebtedness, Subordinated Indebtedness or Guarantor Subordinated Indebtedness purchased in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in 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 contractually subordinated to the Notes or any Note Guarantee (excluding any intercompany Indebtedness between or among Guaranteed by the Company and any or (e) repayments following the occurrence of the Guarantors), except a payment default or event of interest default under an indenture or principal at the Stated Maturity thereof (for purposes of clarity, the Existing Notes will not be deemed other agreement relating to be contractually subordinated to the Notes); Indebtedness) or (iv) make any Restricted Investment in any Person (all any such payments and dividend, distribution, purchase, redemption, repurchase, defeasance, other actions set forth acquisition, retirement or Investment referred to in clauses (i) through (iv) above being collectively herein referred to as a “Restricted PaymentsPayment”), unless, ) if at the time of and after giving effect to the Company or such Restricted Subsidiary makes such Restricted Payment:: (1) a Default shall have occurred and be continuing (or would result from the Restricted Payment); (2) the Company could not Incur at least an additional $1.00 of Indebtedness under paragraph (a) of Section 3.3; or (3) the aggregate amount of such Restricted Payment and all other Restricted Payments (the amount 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 of Directors) declared or made subsequent to August 4, 2004 would exceed the sum of: (A) $300.0 million; (B) 50% of the 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, in case such Consolidated Net Income shall be a deficit, minus 100% of such deficit); (C) 100% of the aggregate Net Cash Proceeds received by the Company from the issuance or sale of its Capital Stock (other than Disqualified Stock) or other cash capital contributions subsequent to August 4, 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 plan or trust is financed by Indebtedness of 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 received by the Company from the issuance and sale of its Capital Stock (other than Disqualified Stock) or other cash capital contributions to the extent applied to redeem Indebtedness (including the Securities) pursuant to 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 (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 of the Company (other than Disqualified Stock) (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 since August 4, 2004 in Unrestricted Subsidiaries resulting from (i) repayments of loans or advances or other transfers of assets to the Company or any Restricted Subsidiary from Unrestricted Subsidiaries or (ii) the redesignation of Unrestricted Subsidiaries as Restricted Subsidiaries (valued in each case as provided in the definition of “Investment”) not to exceed, in the case of any Unrestricted Subsidiary, the amount of Investments previously made by the Company or any Restricted Subsidiary in such 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. The Company will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly: , (i) declare or pay any dividend or make any other payment or distribution on account of the Company’s or any of with respect to its Restricted Subsidiaries’ Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company or its Restricted Subsidiaries) or to the direct or indirect holders of the Company’s or any of its Restricted Subsidiaries’ Equity Interests in their capacity as such Capital Stock (other than (x) dividends or distributions payable solely in Equity Interests 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 Company or dividends, payments or distributions payable to fiscal quarter beginning immediately following the Company or a Guarantor, or payable Closing Date) held by a Restricted Subsidiary that is not a Guarantor to any Restricted Subsidiary); (ii) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or its Restricted Subsidiaries (Persons other than any such Equity Interests owned by the Company or any Guarantor); (iii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness of the Company or any of its Restricted Subsidiaries Subsidiaries, (ii) purchase, redeem, retire or otherwise acquire for value any shares of Capital Stock of (A) the Company or an Unrestricted Subsidiary (including options, warrants or other rights to acquire such shares of Capital Stock) held by 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 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 contractually subordinated in right of payment to the Notes or any Note Guarantee (excluding any intercompany Indebtedness between or among the Company and any of the Guarantors), except a payment of interest or principal at the Stated Maturity thereof (for purposes of clarity, the Existing Notes will not be deemed to be contractually subordinated to the Notes); or (iv) make any Restricted Investment Investment, other than a Permitted Investment, in any Person (all such payments and or any other actions set forth described in clauses (i) through (iv) above being collectively referred to as “"Restricted Payments”), unless") if, at the time of of, and after giving effect to such to, the proposed Restricted Payment:; (A) a Default or Event of Default shall have occurred and be continuing, (B) the Company could not Incur at least $1.00 of Indebtedness under the first paragraph of Section 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 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 4.7 PLUS (2) the aggregate Net Cash Proceeds received by the Company after the Closing Date 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 Net Cash Proceeds are used to Incur Indebtedness pursuant to clause (vii) of the second paragraph of Section 4.8(a), PLUS (3) an amount equal to the net reduction in Investments (other than reductions in Permitted Investments 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 (except, in each case, to the extent any such payment or proceeds 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. The Company will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly: , (i) declare or pay any dividend or make any other payment or distribution on account of the Company’s or any of with respect to its Restricted Subsidiaries’ Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company or its Restricted Subsidiaries) or to the direct or indirect holders of the Company’s or any of its Restricted Subsidiaries’ Equity Interests in their capacity as such Capital Stock (other than (x) dividends or distributions payable solely in Equity Interests shares of its Capital Stock (other than Disqualified Redeemable Stock) or in options, warrants or other rights to acquire shares of the Company or dividends, payments such Capital Stock and (y) pro rata dividends or distributions payable to the Company or a Guarantor, or payable by a Restricted Subsidiary that is not a Guarantor to any Restricted Subsidiary); (ii) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests on Common Stock of the Company or its Restricted Subsidiaries (held by minority stockholders) held by Persons other than any such Equity Interests owned by the Company or any Guarantor); (iii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness of the Company or any of its Restricted Subsidiaries Subsidiaries, (ii) purchase, redeem, retire or otherwise acquire for value any shares of Capital Stock of (A) the Company or an Unrestricted Subsidiary (including options, warrants or other rights to acquire such shares of Capital Stock) held by 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 a Wholly Owned Restricted 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 contractually subordinated in right of payment to the Notes (other than the purchase, repurchase or the acquisition of Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in any Note Guarantee (excluding any intercompany Indebtedness between or among the Company and any case due within one year of the Guarantors), except a payment date of interest or principal at the Stated Maturity thereof (for purposes of clarity, the Existing Notes will not be deemed to be contractually subordinated to the Notes); acquisition) or (iv) make any Restricted Investment Investment, other than a Permitted Investment, in any Person (all such payments and or any other actions set forth described in clauses (i) through (iv) above being collectively referred to as “Restricted Payments”), unless) if, at the time of of, and after giving effect to, the proposed Restricted Payment: (A) a Default or Event of Default shall have occurred and be continuing, (B) the Company could not Incur at least $1.00 of Indebtedness under the first paragraph 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 shall exceed the sum of (1) the remainder of (x) the aggregate amount of the Consolidated EBITDA (or, if the Consolidated 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 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 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 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, 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) 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 Payment: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. The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly: (i) declare Declare or pay any dividend (other than dividends payable solely in common stock of the Person making such dividend) on, 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 limited to in respect of any preferred 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, 1997 Convertible Subordinated Notes, the Put Facility or the Senior Subordinated Notes, whether now or hereafter outstanding, or make any other payment distribution in respect thereof or distribution on account purchase any thereof, either directly or indirectly, whether in cash or property or in obligations of the Company’s Borrower or any Subsidiary, except that the Borrower (a) may make open market purchases of its Restricted Subsidiaries’ outstanding common stock in an aggregate amount during the term of this Agreement not to exceed $10,000,000, after the occurrence of the Minimum Equity Interests Event, (includingb) may (i) make scheduled payments of interest in respect of the Convertible Subordinated Debentures, without limitationthe 1997 Convertible Subordinated Notes, any payment the Put Facility and the Senior Subordinated Notes and may make prepayments of the Put Facility to the extent provided in this Agreement, and (ii) if permitted by Section 7.10, repurchase, redeem or defease the Convertible Subordinated Debentures after at least 90% of the Convertible Subordinated Debentures have been converted or repurchase, redeem or defease the 1997 Convertible Subordinated Notes after at least 90% of the 1997 Convertible Subordinated Notes have been converted and (c) may make cash payments required pursuant to Sections 11.1 and 11.3 of the Indenture in connection with any merger or consolidation involving the Company or its Restricted Subsidiaries) or to the direct or indirect holders conversions of the Company’s Convertible Subordinated Debentures or any of its Restricted Subsidiaries’ Equity Interests in their capacity as such (other than dividends or distributions payable in Equity Interests (other than Disqualified Stock) Section 10.3 of the Company or dividends1997 Indenture in connection with conversions of the 1997 Convertible Subordinated Notes, payments or distributions payable to provided that (i) no more than 40% of the Company or a Guarantor, or payable by a Restricted Subsidiary that is not a Guarantor aggregate consideration to any Restricted Subsidiary); holder of the 1997 Convertible Subordinated Notes upon conversion thereof may be in cash, (ii) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or its Restricted Subsidiaries (other than any such Equity Interests owned by the Company or any Guarantor); (iii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness of the Company or any of its Restricted Subsidiaries that is contractually subordinated to the Notes or any Note Guarantee (excluding any intercompany Indebtedness between or among the Company and any of the Guarantors), except a payment of interest or principal at the Stated Maturity thereof (for purposes of clarity, the Existing Notes will not be deemed to be contractually subordinated to the Notes); or (iv) make any Restricted Investment (all such payments and other actions set forth in clauses (i) through (iv) above being collectively referred to as “Restricted Payments”), unless, at the time of and after giving effect to such Restricted Payment:payment and conversion, no Default or Event of Default shall be continuing and (iii) after giving pro forma effect to such payment and conversion as if it had occurred on the last day of the most recently ended fiscal quarter, the Consolidated Leverage Ratio would not exceed 2.50 to 1.00. Notwithstanding the foregoing, any Subsidiary of the Borrower may pay dividends and other distributions to the Borrower and Servicios may pay dividends to its shareholders.

Limitation on Restricted Payments. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries toSubsidiary, 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 in respect of its Restricted Subsidiaries’ Equity Interests Capital Stock (including, without limitation, including any payment in connection with any merger or consolidation involving the Company or to its Restricted Subsidiaries) or to the direct or indirect holders of the Company’s or any of its Restricted Subsidiaries’ Equity Interests in their capacity as such (other than dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company or dividends, payments or distributions payable to the Company or a Guarantor, or payable by a Restricted Subsidiary that is not a Guarantor to any Restricted Subsidiary); (ii) purchase, redeem or otherwise acquire or retire for value (including, without limitation, stockholders in connection with any merger or consolidation involving the Company) except (A) dividends or distributions payable solely in its Capital Stock (other than Disqualified Stock) and (B) dividends or distributions payable to the Company or any Equity Interests Restricted Subsidiary (and, if such Restricted Subsidiary is not a Wholly Owned Subsidiary, to its other shareholders on no more than a pro rata basis, measured by value), (ii) purchase, redeem, retire or otherwise acquire for value any Capital Stock of the Company or its any Restricted Subsidiaries (Subsidiary held by Persons other than any such Equity Interests owned by the Company or any Guarantor); another Restricted Subsidiary, (iii) make any payment on or with respect topurchase, or purchaserepurchase, redeem, defease or otherwise acquire or retire for value value, prior to scheduled maturity, scheduled repayment or scheduled sinking fund payment, any Indebtedness Subordinated Obligations (other than the purchase, repurchase, redemption or other acquisition of Subordinated Obligations in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case due within one year of the Company or any date of its Restricted Subsidiaries that is contractually subordinated to the Notes or any Note Guarantee (excluding any intercompany Indebtedness between or among the Company and any of the Guarantors), except a payment of interest or principal at the Stated Maturity thereof (for purposes of clarity, the Existing Notes will not be deemed to be contractually subordinated to the Notes); acquisition) or (iv) make any Restricted Investment (all other than a Permitted Investment) in any Person (any such payments and dividend, distribution, purchase, redemption, repurchase, defeasance, other actions set forth in clauses (i) through (iv) above acquisition, retirement or Investment being collectively herein referred to as “a "Restricted Payments”), unless, Payment") if at the time of and after giving effect to the Company or such Restricted Subsidiary makes such Restricted Payment:: (A) a Default shall have occurred and be continuing (or would result therefrom); (B) the Company could not incur at least an additional $1.00 of Indebtedness under paragraph (a) of the covenant contained in Section 1010; or (C) the aggregate amount of such Restricted Payment and all other Restricted Payments (the amount so expended, if other

Limitation on Restricted Payments. The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly: (i) declare Declare or pay any dividend (other than dividends payable solely in common stock of the Person making such dividend) on, 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 limited to in respect of any preferred 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 payment distribution in respect thereof or distribution on account purchase any thereof, either directly or indirectly, whether in cash or property or in obligations of the Company’s Borrower or any Subsidiary, except that the Borrower (a) may make open market purchases of its Restricted Subsidiaries’ Equity Interests outstanding common stock in an aggregate amount during the term of this Agreement not to exceed (includingi) $10,000,000, without limitationwhile the Consolidated Leverage Ratio is less than 3.75 to 1.0 but greater than or equal to 2.50 to 1.0 and (ii) $25,000,000 (including any amounts expended pursuant to clause (i)), any payment while the Consolidated Leverage Ratio is less than 2.50 to 1.0, (b) may (i) make scheduled payments of principal and interest in respect of the Convertible Subordinated Debentures, 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 and (c) 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 merger or consolidation involving Subsidiary of the Company or its Restricted Subsidiaries) or Borrower may pay dividends and other distributions to the direct or indirect holders of the Company’s or any of Borrower and Servicios may pay dividends to its Restricted Subsidiaries’ Equity Interests in their capacity as such (other than dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company or dividends, payments or distributions payable to the Company or a Guarantor, or payable by a Restricted Subsidiary that is not a Guarantor to any Restricted Subsidiary); (ii) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or its Restricted Subsidiaries (other than any such Equity Interests owned by the Company or any Guarantor); (iii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness of the Company or any of its Restricted Subsidiaries that is contractually subordinated to the Notes or any Note Guarantee (excluding any intercompany Indebtedness between or among the Company and any of the Guarantors), except a payment of interest or principal at the Stated Maturity thereof (for purposes of clarity, the Existing Notes will not be deemed to be contractually subordinated to the Notes); or (iv) make any Restricted Investment (all such payments and other actions set forth in clauses (i) through (iv) above being collectively referred to as “Restricted Payments”), unless, at the time of and after giving effect to such Restricted Payment:shareholders.

Limitation on Restricted Payments. The Company will not, and will not cause or permit any of its Restricted Subsidiaries to, directly or indirectly: , (ia) declare or pay any dividend or make any other payment or distribution on account of the Company’s or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company or its Restricted Subsidiaries) or to the direct or indirect holders of the Company’s or any of its Restricted Subsidiaries’ Equity Interests in their capacity as such (other than dividends or distributions payable in Equity Interests (Qualified Capital Stock of the Company) on or in respect of shares of the Company's or its Subsidiaries' Capital Stock to holders of such Capital Stock, other than Disqualified Stock) of the Company or dividends, payments dividends or distributions payable to the Company or a Guarantorits Wholly Owned Subsidiaries, or payable by a Restricted Subsidiary that is not a Guarantor to any Restricted Subsidiary); which shall be permitted (iib) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests Capital Stock of the Company or its Restricted Subsidiaries (or any warrants, rights or options to purchase or acquire shares of any class of such Capital Stock, other than any such Equity Interests owned by from the Company or any Guarantor); a Wholly Owned Subsidiary of the Company, which shall be permitted (iiic) make any principal payment on or with respect toon, or purchase, defease, redeem, defease prepay, decrease or otherwise acquire or retire for value value, prior to any scheduled final maturity, scheduled repayment or scheduled sinking fund payment, any Indebtedness of the Company or its Subsidiaries that is subordinate or junior in right of payment to the Securities; (d) make any payment on, repurchase, redeem or refinance any securities ranking in parity with the New Preferred Stock or the Securities prior to any scheduled final maturity, scheduled repayment, scheduled sinking fund payment, or scheduled interest payment, unless such payment, repurchase, redemption or refinancing is made PRO RATA for the New Preferred Stock or the Securities, as applicable (PROVIDED, that the foregoing clause (d) shall not preclude refinancings permitted under subparagraphs (x) or (xi) of the definition of "Permitted Indebtedness" or any payments with respect to, or repurchases or redemptions of, any Indebtedness permitted under any of subparagraphs (iv), (v), (vi), (vii), (viii), (ix) or (xii) of the definition of "Permitted Indebtedness" (solely at stated maturity with respect to redemptions of Indebtedness under subparagraph (xii)); or (e) make any Investment (other than Permitted Investments) (each of the foregoing actions set forth in clauses (a), (b), (c), (d) and (e) being referred to as a "Restricted Payment"). Notwithstanding the foregoing, the provisions set forth in the immediately preceding paragraph do not prohibit (1) if no Default or Event of Default shall have occurred and be continuing, the acquisition of any Indebtedness of the Company that is subordinate or junior in right of payment to the Securities either (A) solely in exchange for shares of Qualified Capital Stock of the Company or (B) solely, if and to the extent that the Indebtedness being Refinanced is then due and payable, Refinancing Indebtedness that complies with clause (x) of the definition of Permitted Indebtedness; (2) so long as no Default or Event of Default shall have occurred and be continuing, the payment of cash dividends on the New Preferred Stock commencing with the first payment due on September 15, 2003; (3) so long as no Default or Event of Default shall have occurred and be continuing, the repurchase of Series B Preferred Stock, Series B-1 Preferred Stock and Series A Preferred Stock after a Change of Control; PROVIDED that the Company has completed the Change of Control Offer on the Securities; (4) if no Default or Event of Default shall have occurred and be continuing, the acquisition of any shares of Capital Stock of the Company, solely in exchange for shares of Qualified Capital Stock of the Company; and (5) so long as no Default or Event of Default shall have occurred and be continuing, repurchases by the Company of Capital Stock of the Company from employees of the Company or any of its Subsidiaries or their authorized representatives upon the death, disability or termination of employment of such employees or pursuant to a written contract or plan, in an aggregate amount not to exceed $300,000 in the aggregate. Not later than the date of making any Restricted Subsidiaries that is contractually subordinated Payment, the Company shall deliver to the Notes or any Note Guarantee (excluding any intercompany Indebtedness between or among the Company and any of the Guarantors), except a payment of interest or principal at the Stated Maturity thereof (for purposes of clarity, the Existing Notes will not be deemed to be contractually subordinated to the Notes); or (iv) make any Restricted Investment (all such payments and other actions set forth in clauses (i) through (iv) above being collectively referred to as “Restricted Payments”), unless, at the time of and after giving effect to Trustee an Officers' Certificate stating that such Restricted Payment:Payment complies with this Indenture.

Limitation on Restricted Payments. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries toSubsidiary, 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 in respect of its Restricted Subsidiaries’ Equity Interests Capital Stock (including, without limitation, including any payment in connection with any merger or consolidation involving the Company or to its Restricted Subsidiaries) or to the direct or indirect holders of the Company’s or any of its Restricted Subsidiaries’ Equity Interests in their capacity as such (other than dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company or dividends, payments or distributions payable to the Company or a Guarantor, or payable by a Restricted Subsidiary that is not a Guarantor to any Restricted Subsidiary); (ii) purchase, redeem or otherwise acquire or retire for value (including, without limitation, stockholders in connection with any merger or consolidation involving the Company) any Equity Interests of the Company except (A) dividends or distributions payable solely in its Restricted Subsidiaries Capital Stock (other than any such Equity Interests owned by Disqualified Stock) and (B) dividends or distributions payable to the Company or any GuarantorRestricted Subsidiary (and, if such Restricted Subsidiary is not a Wholly Owned Subsidiary, to its other shareholders on no more than a pro rata basis, measured by value); , (ii) purchase, redeem, retire or otherwise acquire for value any Capital Stock of 84 the Company or any Restricted Subsidiary held by Persons other than the Company or another Restricted Subsidiary), (iii) make any payment on or with respect topurchase, or purchaserepurchase, redeem, defease or otherwise acquire or retire for value value, prior to scheduled maturity, scheduled repayment or scheduled sinking fund payment, any Subordinated Obligations (other than the purchase, repurchase, redemption or other acquisition of Subordinated Obligations in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case due within one year of the date of acquisition) or (iv) make any Investment (other than a Permitted Investment) in any Person (any such dividend, distribution, purchase, redemption, repurchase, defeasance, other acquisition, retirement or Investment being herein referred to as a "Restricted Payment") if at the time the Company or such Restricted Subsidiary makes such Restricted Payment: (A) a Default shall have occurred and be continuing (or would result therefrom); (B) the Company could not incur at least an additional $1.00 of Indebtedness under the first paragraph (a) of the covenant contained in Section 1010; or (C) the aggregate amount of such Restricted Payment and all other Restricted Payments (the amount 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 of Directors) declared or made subsequent to the date of this Indenture would exceed the sum of: (1) 50% of the 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, in case such Consolidated Net Income shall be a deficit, minus 100% of such deficit); (2) the aggregate Net Cash Proceeds received by the Company from the issuance 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), 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 Restricted Subsidiaries that is contractually subordinated for the benefit of their employees, to the Notes extent the purchase by such plan or any Note Guarantee (excluding any intercompany trust is financed by Indebtedness between of such plan or among trust and for which the Company is liable as Guarantor or otherwise, such aggregate amount of Net Cash Proceeds shall be limited to the aggregate amount of principal payments made by such plan or trust with respect to such Indebtedness); and any (3) in the case of the Guarantorsdisposition 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), except a payment of interest or principal at the Stated Maturity thereof (for purposes of clarity, the Existing Notes will not be deemed to be contractually subordinated an amount equal to the Notes); lesser of (x) the return of capital or (iv) make any Restricted Investment (all such payments and other actions set forth in clauses (i) through (iv) above being collectively referred to as “Restricted Payments”), unless, at the time of and after giving effect similar repayment with respect to such Restricted Payment:Investment and (y) the initial amount of such Investment, in either case, less the cost of the disposition of such Investment.

Limitation on Restricted Payments. The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, directly or indirectly: (i) declare or pay any dividend or make any other payment or distribution on account of the Company’s 's or any of its Restricted Subsidiaries’ ' Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company or its Restricted Subsidiariesother than: (1) or to the direct or indirect holders of the Company’s or any of its Restricted Subsidiaries’ Equity Interests in their capacity as such (other than dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company or dividends, payments Company; (2) dividends or distributions payable by a Restricted Subsidiary of the Company, provided that to the extent that a portion of such dividend or distribution is paid to a holder of Equity Interests of a Restricted Subsidiary other than the Company or a GuarantorRestricted Subsidiary, such portion of such dividend or payable by a Restricted Subsidiary that distribution is not a Guarantor to any greater than such holder's pro rata aggregate common equity interest in such Restricted 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 or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or its any Restricted Subsidiaries Subsidiary or other Affiliate of the Company (other than (A) any such Equity Interests owned by the Company or any GuarantorRestricted Subsidiary of the Company, (B) any Existing Preferred OP Units and (C) any Preferred OP Units issued in compliance with Section 4.9 hereof); (iii) make any payment on or with respect to, or purchase, redeem, defease redeem or otherwise acquire or retire for value any Indebtedness of the Company or any of its Restricted Subsidiaries Subsidiary that is contractually subordinated or junior in right of payment, by its terms, to the Notes or any Note Guarantee (excluding any intercompany Indebtedness between thereof prior to the scheduled final maturity or among the Company and any of the Guarantors), except a sinking fund payment dates for payment of principal and interest in accordance with the original documentation for such subordinated or principal at the Stated Maturity thereof (for purposes of clarity, the Existing Notes will not be deemed to be contractually subordinated to the Notes)junior Indebtedness; or (iv) make any Restricted Investment (all such payments and other actions set forth in clauses (i) through (iv) above being collectively referred to as “"Restricted Payments”"), unless, at the time of and after giving effect to such Restricted Payment:

Limitation on Restricted Payments. The Company will (a) RAS shall not, and will shall not permit any of its Restricted Subsidiaries toSubsidiaries, 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 in respect of its Restricted Subsidiaries’ Equity Interests Capital Stock (including, without limitation, including any payment in connection with any merger or consolidation involving the Company or its Restricted Subsidiaries) or to the direct or indirect holders of the Company’s RAS or any of its Restricted Subsidiaries’ Equity Interests in their capacity as such ) except (other than A) dividends or distributions payable in Equity Interests its Capital Stock (other than Disqualified Stock) of the Company or dividendsin options, payments warrants or other rights to purchase such Capital Stock and (B) dividends or distributions payable to the Company RAS or a Guarantor, or payable by a Restricted Subsidiary that of RAS which holds any equity interest in the paying Restricted Subsidiary (and if the Restricted Subsidiary paying the dividend or making the distribution is not a Guarantor Wholly-Owned Subsidiary, to any Restricted Subsidiaryits other holders of Capital Stock on a pro rata basis); , (ii) purchase, redeem redeem, retire or otherwise acquire or retire for value any Capital Stock of RAS held by Persons other than 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 (includingin either case, without limitation, other than in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or exchange for its Restricted Subsidiaries Capital Stock (other than any such Equity Interests owned by the Company or any GuarantorDisqualified Stock); ), (iii) make any payment on or with respect topurchase, or purchaserepurchase, redeem, defease or otherwise acquire or retire for value value, prior to scheduled maturity, scheduled repayment or scheduled sinking fund payment, any Indebtedness of the Company or any of its Restricted Subsidiaries that is contractually subordinated to the Notes or any Note Guarantee (excluding any intercompany Indebtedness between or among the Company and any of the Guarantors), except a payment of interest or principal at the Stated Maturity thereof (for purposes of clarity, the Existing Notes will not be deemed to be contractually subordinated to the Notes); Subordinated Obligations or (iv) make any Restricted Investment (all other than a Permitted Investment) in any Person (any such payments and dividend, distribution, purchase, redemption, repurchase, defeasance, other actions set forth acquisition, retirement or Investment as described in preceding clauses (i) through (iv) above being collectively referred to as “a "Restricted Payments”Payment"), unless, ; if at the time of and after giving effect to the Partnership or such Restricted Subsidiary makes such Restricted Payment:: (1) a Default shall have occurred and be continuing (or would result therefrom); or (2) RAS is not able to incur an additional $1.00 of Indebtedness pursuant to paragraph (a) under Section 4.09; 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 the Consolidated Net Income accrued during the period (treated as one accounting period) from the first day of the fiscal quarter beginning on or after 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 proceeds received by RAS 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 (x) a Subsidiary of RAS, (y) an employee stock ownership plan or similar trust or (z) management employees of RAS or any Subsidiary of RAS (other than sales of Capital Stock (other than Disqualified Stock) to management employees of RAS pursuant to bona fide employee stock option plans of RAS);

Limitation on Restricted Payments. The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly: (i) declare Declare or pay any dividend (other than dividends payable solely in common stock of the Person making such dividend) on, 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 limited to in respect of any preferred 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 payment distribution in respect thereof or distribution on account purchase any thereof, either directly or indirectly, whether in cash or property or in obligations of the Company’s Borrower or any Subsidiary, except that the Borrower (a) may make open market purchases of its Restricted Subsidiaries’ Equity Interests outstanding common stock in an aggregate amount during the term of this Agreement not to exceed (includingi) $10,000,000, without limitationwhile the Consolidated Leverage Ratio is less than 3.75 to 1.0 but greater than or equal to 2.50 to 1.0 and (ii) $25,000,000 (including any amounts expended pursuant to clause (i)), any payment 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 cash payments required pursuant to Sections 11.1 and 11.3 of the Indenture in connection with any merger conversions of the Convertible Subordinated Debentures or consolidation involving Section 10.3 of the Company or 1997 Indenture in connection with conversions of the 1997 Convertible Subordinated Notes and, (d) if the Borrower is not yet authorized to issue a sufficient number of shares of its Restricted Subsidiaries) or common stock to allow conversion into common stock of all 1997 Convertible Subordinated Notes, the direct or indirect Borrower may make cash payments to holders of the Company’s or any of its Restricted Subsidiaries’ Equity Interests 1997 Convertible Subordinated Notes in their capacity as such connection with the conversion thereof, provided that (other i) no more than dividends or distributions payable in Equity Interests (other than Disqualified Stock) 40% of the Company or dividends, payments or distributions payable to the Company or a Guarantor, or payable by a Restricted Subsidiary that is not a Guarantor aggregate consideration to any Restricted Subsidiary); holder of the 1997 Convertible Subordinated Notes upon conversion thereof may be in cash, (ii) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or its Restricted Subsidiaries (other than any such Equity Interests owned by the Company or any Guarantor); (iii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness of the Company or any of its Restricted Subsidiaries that is contractually subordinated to the Notes or any Note Guarantee (excluding any intercompany Indebtedness between or among the Company and any of the Guarantors), except a payment of interest or principal at the Stated Maturity thereof (for purposes of clarity, the Existing Notes will not be deemed to be contractually subordinated to the Notes); or (iv) make any Restricted Investment (all such payments and other actions set forth in clauses (i) through (iv) above being collectively referred to as “Restricted Payments”), unless, at the time of and after giving effect to such Restricted Payment:payment and conversion, no Default or Event of Default shall be continuing and (iii) after giving pro forma effect to such payment and conversion as if it had occurred on the last day of the most recently ended fiscal quarter, the Consolidated Leverage Ratio would not exceed 2.50 to 1.00. Notwithstanding the foregoing, any Subsidiary of the Borrower may pay dividends and other distributions to the Borrower and Servicios may pay dividends to its shareholders.

Limitation on Restricted Payments. The Company will shall not, and will shall not permit any of its Restricted Subsidiaries toSubsidiaries, directly or indirectly, to: (i) declare or pay any dividend or make any distribution (whether made in cash, securities or other payment property) on or distribution on account in respect of the Company’s its or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, including any payment in connection with any merger or consolidation involving the Company or its Restricted Subsidiaries) or to the direct or indirect holders of the Company’s or any of its Restricted Subsidiaries’ Equity Interests in their capacity as such () other than than: dividends or distributions payable solely in Equity Interests of the Company (other than Disqualified Stock) of the Company or dividends, payments ); and dividends or distributions by a Restricted Subsidiary, so long as, in the case of any dividend or distribution payable to the Company on or a Guarantor, or payable in respect of any Capital Stock issued by a Restricted Subsidiary that is not a Guarantor to any Wholly Owned Subsidiary, the Company or the Restricted Subsidiary)Subsidiary holding such Capital Stock receives at least its pro rata share of such dividend or distribution; (ii) purchase, redeem redeem, retire or otherwise acquire or retire for value (includingvalue, without limitation, including in connection with any merger or consolidation involving the Company) consolidation, any Equity Interests of the Company or its Restricted Subsidiaries (any direct or indirect parent company of the Company held by Persons other than any such Equity Interests owned by the Company or any Guarantor)a Restricted Subsidiary; (iii) make any principal payment on or with respect toon, or purchase, repurchase, redeem, defease or otherwise acquire or retire for value value, prior to any scheduled repayment, scheduled sinking fund payment or scheduled maturity, any Subordinated Obligations or Guarantor Subordinated Obligations, other than: Indebtedness of the Company owing to and held by any Restricted Subsidiary or Indebtedness of a Restricted Subsidiary owing to and held by the Company or any other Restricted Subsidiary; or the purchase, repurchase, redemption, defeasance or other acquisition or retirement of its Restricted Subsidiaries that is contractually subordinated to the Notes Subordinated Obligations or any Note Guarantee (excluding any intercompany Indebtedness between Guarantor Subordinated Obligations purchased in anticipation of satisfying a sinking fund obligation, principal installment or among the Company and any final maturity, in each case due within one year of the Guarantors)date of purchase, except a payment of interest repurchase, redemption, defeasance or principal at the Stated Maturity thereof (for purposes of clarity, the Existing Notes will not be deemed to be contractually subordinated to the Notes)other acquisition or retirement; or (iv) make any Restricted Investment (all such payments and other actions set forth referred to in clauses (i1) through (iv4) above being collectively (other than any exception thereto) shall be referred to as a “Restricted PaymentsPayment”), unless, at the time of and after giving effect to such Restricted Payment:: no Default shall have occurred and be continuing (or would result therefrom); immediately after giving effect to such transaction on a pro forma basis, the Company could Incur $1.00 of additional Indebtedness under Section 4.09(a); and the aggregate amount of such Restricted Payment and all other Restricted Payments declared or made subsequent to the Issue Date (including Restricted Payments made pursuant to clauses (6), (7), (11), (12) and (14) of Section 4.08(b) but excluding all other Restricted Payments permitted by Section 4.08(b)) would not exceed the sum of (without duplication):

Limitation on Restricted Payments. [ADD: Intentionally Omitted.] [DELETE: The Company will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly: , (i) declare or pay any dividend or make any other payment or distribution on account of the Company’s or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company or its Restricted Subsidiaries) or to the direct or indirect holders of the Company’s or any of its Restricted Subsidiaries’ Equity Interests in their capacity as such Capital Stock (other than dividends or distributions payable solely in Equity Interests shares of its or such Subsidiary's Capital Stock (other than Disqualified Redeemable Stock) of the Company same class held by such holders or dividendsin options, payments warrants or distributions payable other rights to acquire such shares of Capital Stock) held by Persons other than the Company or a Guarantor, or payable by a Restricted Subsidiary that is not a Guarantor to any another Restricted Subsidiary); , (ii) purchase, redeem redeem, retire or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving shares of Capital Stock of the Company, any Restricted Subsidiary or any Unrestricted Subsidiary (including options, warrants or other rights to acquire such shares of Capital Stock) any Equity Interests of held by Persons other than the Company or its another Restricted Subsidiaries (other than any such Equity Interests owned by the Company or any Guarantor); Subsidiary, (iii) make any payment on voluntary or with respect tooptional principal payment, or purchasevoluntary or optional redemption, redeemrepurchase, defease defeasance, or otherwise acquire other acquisition or retire retirement for value any value, of Indebtedness of the Company or any of its Restricted Subsidiaries that is contractually subordinated in right of payment to the Notes or any Note Guarantee (excluding any intercompany Indebtedness between or among the Company and any of the Guarantors)Securities, except a payment of interest or principal at the Stated Maturity thereof (for purposes of clarity, the Existing Notes will not be deemed to be contractually subordinated to the Notes); or (iv) make any Restricted Investment in any Unrestricted Subsidiary (all such payments and or any other actions set forth described in clauses (i) through (iv) above being collectively referred to as “"Restricted Payments”), unless") if, at the time of of, and after giving effect to such to, the proposed Restricted Payment:: (A) a Default or Event of Default shall have occurred and be continuing, (B) the Company could not Incur at least $1.00 of Indebtedness under the first paragraph of Section 3.03 or (C) the aggregate amount A-4 expended for all Restricted Payments (the amount 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) after the date of this Indenture 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 such amount) of the Company (determined by excluding income resulting from the transfers of assets received by the Company or a Restricted Subsidiary from an Unrestricted Subsidiary) accrued on a cumulative basis during the period (taken as one accounting period) beginning on April 1, 1994 and ending on the last day of the last fiscal quarter preceding the Transaction Date plus (2) the aggregate net proceeds (including the fair market value of non-cash proceeds as determined in good faith by the Board of Directors, whose determination shall be conclusive and evidenced by a Board Resolution) received by the Company from the issuance and sale permitted by this Indenture of its Capital Stock (not including Redeemable Stock) to a Person who is not a Subsidiary of the Company, including an issuance or sale permitted by this Indenture for cash or other property upon the conversion of any Indebtedness of the Company subsequent to the Closing Date, or from the issuance 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 Securities) plus (3) an amount equal to the net reduction in Investments in Unrestricted Subsidiaries 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 from Unrestricted Subsidiaries, or from redesignations of Unrestricted Subsidiaries as Restricted Subsidiaries (valued in each case as provided in the definition of "Investments"), not to exceed in the case of any Unrestricted Subsidiary the amount of Investments previously made by the Company or any Restricted Subsidiary in such Unrestricted Subsidiary plus (4) $75 million. The foregoing provision shall not take into account, and shall not be violated by reason of: (i) the payment of any dividend within 60 days after the date of declaration thereof if, at such date of declaration, such payment would comply with the foregoing provision; (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, with the proceeds of Indebtedness Incurred under the first paragraph of Section 3.03 or clause (iv) or (x) of the second paragraph of Section 3.03; (iii) the payment of dividends on the Capital Stock of the Company, following any issuance of the Capital Stock of the Company, of up to 6% per annum of the net proceeds received by the Company in such issuance of the Capital Stock of the Company; (iv) the repurchase of shares of, or options to purchase shares of, Common Stock of the Company or any of its Subsidiaries from employees, former employees, directors or former directors of the Company or any of its Subsidiaries (or permitted transferees of such employees, former employees, directors or former directors) pursuant to the terms of the form of agreements or plans (or amendments thereto) under which such Persons purchase or sell, or are granted the option to purchase or sell, shares of such Common Stock; (v) the repurchase, redemption or other acquisition of Capital Stock of the Company 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); (vi) the acquisition of Indebtedness of the Company that 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 Capital Stock of the Company (other than Redeemable Stock); (vii) payments or distributions pursuant to or in connection with a consolidation, merger or transfer of assets that complies with Section 4.01 of this Indenture; (viii) the purchase, redemption, acquisition, cancellation or other retirement for a nominal value per right (as determined in good faith by the Board of Directors) of any rights granted to all the holders of Common Stock of the Company pursuant to any shareholders' rights plan (i.e., a "poison pill") adopted for the purpose (determined in good faith by the Board of Directors) of protecting shareholders from unfair takeover tactics; provided that any such purchase, redemption, acquisition, cancellation or other retirement A-5 Nothing contained in this Section 3.05 shall prevent the Company or any Restricted Subsidiary from (1) entering into any agreement permitting the incurrence of Liens otherwise permitted in Section 3.08 or (2) restricting the sale or other disposition of property or assets of the Company or any of its Subsidiaries that secure Indebtedness of the Company or any of its Subsidiaries].

Limitation on Restricted Payments. The Company will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly: , (i) declare or pay any dividend or make any other payment or distribution on account of the Company’s or any of with respect to its Restricted Subsidiaries’ Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company or its Restricted Subsidiaries) or to the direct or indirect holders of the Company’s or any of its Restricted Subsidiaries’ Equity Interests in their capacity as such Capital Stock (other than (x) dividends or distributions payable solely in Equity Interests 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 Company or dividends, payments or distributions payable to fiscal quarter beginning immediately following the Company or a Guarantor, or payable Closing Date) held by a Restricted Subsidiary that is not a Guarantor to any Restricted Subsidiary); (ii) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or its Restricted Subsidiaries (Persons other than any such Equity Interests owned by the Company or any Guarantor); (iii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness of the Company or any of its Restricted Subsidiaries Subsidiaries, (ii) purchase, redeem, retire or otherwise acquire for value any shares of Capital Stock of (A) the Company or an Unrestricted Subsidiary (including options, warrants or other rights to acquire such shares of Capital Stock) held by 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 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 contractually subordinated in right of payment to the Notes or any Note Guarantee (excluding any intercompany Indebtedness between or among the Company and any of the Guarantors)other than, except a payment of interest or principal at the Stated Maturity thereof (for purposes of clarityin each case, the Existing Notes will not be deemed to be contractually subordinated to purchase, repurchase or acquisition of Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in any case due within one year after the Notes); date of such purchase, repurchase or acquisition) or (iv) make any Restricted Investment Investment, other than a Permitted Investment, in any Person (all such payments and or any other actions set forth described in clauses (i) through (iv) above being collectively referred to as “"Restricted Payments”), unless") if, at the time of of, and after giving effect to such to, the proposed Restricted Payment:: (A) a Default or Event of Default shall have occurred and be continuing, (B) the Company could not Incur at least $1.00 of Indebtedness under the first paragraph of Section 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 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) (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 4.17 plus (2) the aggregate Net Cash Proceeds received by the Company after the Closing Date 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 Net Cash Proceeds are used to Incur Indebtedness pursuant to clause (viii) of the second paragraph of Section 4.03(a), plus (3) an amount equal to the net reduction in Investments (other than reductions in Permitted Investments 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 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. The Company will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly: , (i) declare or pay any dividend or make any other payment or distribution on account of the Company’s or any of with respect to its Restricted Subsidiaries’ Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company or its Restricted Subsidiaries) or to the direct or indirect holders of the Company’s or any of its Restricted Subsidiaries’ Equity Interests in their capacity as such Capital Stock (other than (x) dividends or distributions payable solely in Equity Interests 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 Subsidiaries held by minority stockholders, provided that such dividends do not in the aggregate exceed the minority stockholders' pro rata share of such Subsidiaries' cumulative net income from the first day of the Company or dividendsfiscal quarter beginning immediately following the Issue Date), payments or distributions payable to the Company or a Guarantor, or payable by a Restricted Subsidiary that is not a Guarantor to any Restricted Subsidiary); (ii) purchase, redeem redeem, retire or otherwise acquire or retire for value any shares of Capital Stock of (includingA) the Company (including options, without limitationwarrants or other rights to acquire such shares of Capital Stock) held by any Person or (B) a Subsidiary (including options, in connection with warrants or other rights to acquire such shares of Capital Stock) held by any merger or consolidation involving the Company) any Equity Interests Affiliate of the Company or its Restricted Subsidiaries (other than any such Equity Interests owned by the Company a Wholly Owned Subsidiary) or any Guarantor); holder (or any Affiliate of such holder) of 5% or more of the Capital Stock of the Company, (iii) make any payment on voluntary or with respect tooptional principal payment, or purchasevoluntary or optional redemption, redeemrepurchase, defease defeasance, or otherwise acquire other acquisition or retire retirement for value any value, of Indebtedness of the Company or any of its Restricted Subsidiaries that is contractually subordinated in right of payment to the Notes (other than the purchase, repurchase or the acquisition of Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in any Note Guarantee (excluding any intercompany Indebtedness between or among the Company and any case due within one year of the Guarantors), except a payment date of interest or principal at the Stated Maturity thereof (for purposes of clarity, the Existing Notes will not be deemed to be contractually subordinated to the Notes); acquisition) or (iv) make any Restricted Investment Investment, other than a Permitted Investment, in any Person (all such payments and or any other actions set forth described in clauses (i) through (iv) above being collectively referred to as “"Restricted Payments”), unless") if, at the time of of, and after giving effect to such to, the proposed Restricted Payment:: (A) a Default or Event of Default shall have occurred and be continuing or (B) 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 Issue Date 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 Subsidiary to 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 Issue Date and ending on the last day of the last fiscal quarter preceding the Transaction Date for which reports have been made available to the holders of the Notes plus (2) the aggregate Net Cash Proceeds received by the Company after the Issue Date (exclusive of any Net Cash Proceeds realized by the Company from the Recapitalization Transaction, 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 Maturity Date) 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 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), not to exceed, in each case, the amount of Investments previously made by the Company or any Subsidiary in such Person.

Limitation on Restricted Payments. (a) --------------------------------- The Company will shall not, and will shall not permit any of its Restricted Subsidiaries toSubsidiary, 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 in respect of its Restricted Subsidiaries’ Equity Interests Capital Stock (including, without limitation, including any payment in connection with any merger or consolidation involving the Company or its Restricted SubsidiariesCompany) or to the direct or indirect holders of the Company’s or any of its Restricted Subsidiaries’ Equity Interests in their capacity as such (other than except dividends or distributions payable solely in Equity Interests its Capital Stock (other than Disqualified Stock) of the Company or dividendsin options, payments warrants or other rights to purchase such Capital Stock and except dividends or distributions payable to the Company or a Guarantor, or payable by a another Restricted Subsidiary that (and, if such Restricted Subsidiary is not a Guarantor Wholly owned Subsidiary, to any Restricted its other shareholders on a pro rata basis or, with respect solely to each of the Co-Venture Partnerships, or their successors, in such proportion and in such order of priority as may be provided for in the respective agreements in effect from time to time between the Company (or the applicable Co-Venture Subsidiary) and the limited partner or partners of such Co- Venture Partnership relating to the theme park owned as of the Issue Date by the applicable Co-Venture Partnership); , (ii) purchase, redeem redeem, retire or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests Capital Stock of the Company or its any Restricted Subsidiaries (Subsidiary held by Persons other than any such Equity Interests owned by the Company or any Guarantor); another Restricted Subsidiary, (iii) make any payment on or with respect topurchase, or purchaserepurchase, redeem, defease or otherwise acquire or retire for value value, prior to scheduled maturity,.scheduled repayment or scheduled sinking fund payment any Indebtedness Subordinated Obligations (other than the purchase, repurchase or other acquisition of Subordinated Obligations purchased in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case due with'-@n one year of the Company or any date of its Restricted Subsidiaries that is contractually subordinated to the Notes or any Note Guarantee (excluding any intercompany Indebtedness between or among the Company and any of the Guarantors), except a payment of interest or principal at the Stated Maturity thereof (for purposes of clarity, the Existing Notes will not be deemed to be contractually subordinated to the Notes); acquisition) or (iv) make any Restricted Investment (all other than a Permitted Investment) in any Person (any such payments and dividend, distribution, purchase, redemption, repurchase, defeasance, other actions set forth in clauses (i) through (iv) above acquisition, retirement or Investment being collectively herein referred to as “a "Restricted Payments”), unless, Payment") if at the time of and after giving effect to the Company or such Restricted Subsidiary makes such Restricted Payment:

Limitation on Restricted Payments. (a) The Company will Parent Borrower shall not, and will shall not permit any of its Restricted Subsidiaries toSubsidiary, 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 in respect of its Restricted Subsidiaries’ Equity Interests Capital Stock (including, without limitation, including any such payment in connection with any merger or consolidation involving to which the Company or its Restricted SubsidiariesParent Borrower is a party) or to the direct or indirect holders of the Company’s or any of its Restricted Subsidiaries’ Equity Interests in their capacity as such except (other than x) dividends or distributions payable solely in Equity Interests its Capital Stock (other than Disqualified Stock) of the Company or dividends, payments and (y) dividends or distributions payable to the Company Parent Borrower or a Guarantor, or payable by a any Restricted Subsidiary that is not (and, in the case of any such Restricted Subsidiary making such dividend or distribution, to other holders of its Capital Stock on no more than a Guarantor to any Restricted Subsidiarypro rata basis, measured by value); , (ii) purchase, redeem redeem, retire or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests Capital Stock of the Company Parent Borrower held by Persons other than the Parent Borrower or its a Restricted Subsidiaries Subsidiary (other than any acquisition of Capital Stock deemed to occur upon the exercise of options if such Equity Interests owned by Capital Stock represents a portion of the Company or any Guarantorexercise price thereof); , (iii) make any payment on or with respect tovoluntarily purchase, or purchaserepurchase, redeem, defease or otherwise voluntarily acquire or retire for value, prior to scheduled maturity, scheduled repayment or scheduled sinking fund payment, any Subordinated Obligations (other than Subordinated Obligations owed to a Restricted Subsidiary and other than a purchase, repurchase, redemption, defeasance or other acquisition or retirement for value any Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case due within one year of the Company date of such purchase, repurchase, redemption, defeasance or any of its Restricted Subsidiaries that is contractually subordinated to the Notes other acquisition or any Note Guarantee (excluding any intercompany Indebtedness between or among the Company and any of the Guarantorsretirement), except a payment of interest or principal at the Stated Maturity thereof (for purposes of clarity, the Existing Notes will not be deemed to be contractually subordinated to the Notes); or (iv) make any cash dividend or cash redemption payments to or in respect of the any Closing Date Preferred Stock (any such cash dividend or cash redemption payment described in this clause (iv), a “Preferred Stock Restricted Payment”) or (v) make any Investment (all other than a Permitted Investment) in any Person (any such payments and dividend, distribution, purchase, repurchase, redemption, defeasance, other actions set forth in clauses (i) through (iv) above acquisition or retirement or Investment being collectively herein referred to as a “Restricted PaymentsPayment”), unless, at the time of and after giving effect to such Restricted Payment:.

Limitation on Restricted Payments. The Company will not, and any Guarantor or Restricted Subsidiary will not permit any of its Restricted Subsidiaries to, directly or indirectly: , without the prior written consent of the Holders of a Minimum Principal Amount, (ia) declare or pay any dividend or make any payment, distribution or return of capital (whether in cash, securities or other payment property) with respect to any Capital Stock of the Company, any Guarantor or distribution any Restricted Subsidiary, including any sinking fund or similar deposit, on account of the Company’s purchase, redemption, retirement, defeasance, acquisition, cancellation or termination of any such Capital Stock, or on account of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company or its Restricted Subsidiaries) or return of capital to the direct or indirect holders of the Company’s or any of its Restricted Subsidiaries’ Equity Interests in their capacity as such (other than dividends or distributions payable in Equity Interests (other than Disqualified Capital Stock) of the Company or dividends, payments or distributions payable to the Company or a Guarantor, or payable by a Restricted Subsidiary that is not a Guarantor to any Restricted Subsidiary); (iib) purchase, redeem or redeem, defease, otherwise acquire or retire for value (includingvalue, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or its Restricted Subsidiaries (other than any such Equity Interests owned by the Company or any Guarantor); (iii) make any payment on or with respect to, any Subordinated Indebtedness (it being understood that regularly scheduled interest payments with respect to Subordinated Indebtedness (other than Indebtedness under the SIS Documents) shall be permitted so long as not prohibited by the subordination terms thereof and no Default or purchase, redeem, defease Event of Default has occurred and is continuing) or otherwise acquire or retire for value any Indebtedness Capital Stock of the Company or any of its Guarantor or Restricted Subsidiaries that is contractually subordinated to the Notes or any Note Guarantee Subsidiary held by Persons (excluding any intercompany Indebtedness between or among the Company and any of the Guarantors), except a payment of interest or principal at the Stated Maturity thereof (for purposes of clarity, the Existing Notes will not be deemed to be contractually subordinated to the Notes); or (iv) make any Restricted Investment (all such payments as described in parts (a) and other actions set forth in clauses (ib) through (iv) above being collectively referred to as hereof, “Restricted Payments”); provided that (i) repurchases of stock from former employees, unlessofficers, at directors, consultants or other persons performing services for the time Company or any Guarantor or Restricted Subsidiary pursuant to the terms of and after giving effect stock repurchase plans, employee restricted stock agreements or similar agreements under which the Company or any Guarantor or Restricted Subsidiary has the option to repurchase such Restricted Payment:shares upon the occurrence of certain events, such as the termination of employment or service, or pursuant to a right of first refusal in an amount not to exceed 5% of the

Limitation on Restricted Payments. The Company will not, --------------------------------- and will not permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly: , (i) declare or pay any dividend or make any other payment or distribution on account of the Company’s or any of with respect to its Restricted Subsidiaries’ Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company or its Restricted Subsidiaries) or to the direct or indirect holders of the Company’s or any of its Restricted Subsidiaries’ Equity Interests in their capacity as such Capital Stock (other than (x) dividends or distributions payable solely in Equity Interests shares of its Capital Stock (other than Disqualified Stock) or in options, warrants or other rights to acquire shares of the Company or dividends, payments such Capital Stock and (y) pro rata dividends or distributions payable to the Company or a Guarantor, or payable by a Restricted Subsidiary that is not a Guarantor to any Restricted Subsidiary); (ii) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests on Common Stock of the Company or its Restricted Subsidiaries (held by minority stockholders) held by Persons other than any such Equity Interests owned by the Company or any Guarantor); (iii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness of the Company or any of its Restricted Subsidiaries Subsidiaries, (ii) purchase, redeem, retire or otherwise acquire for value any shares of Capital Stock of (A) the Company or an Unrestricted Subsidiary (including options, warrants or other rights to acquire such shares of Capital Stock) held by 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 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 contractually subordinated in right of payment to the Notes or any Note Guarantee (excluding any intercompany Indebtedness between or among the Company and any of the Guarantors), except a payment of interest or principal at the Stated Maturity thereof (for purposes of clarity, the Existing Notes will not be deemed to be contractually subordinated to the Notes); or (iv) make any Restricted Investment Investment, other than a Permitted Investment, in any Person (all such payments and or any other actions set forth described in clauses (i) through (iv) above being collectively referred to as “"Restricted ---------- Payments”), unless") if, at the time of of, and after giving effect to such to, the proposed -------- Restricted Payment:: (A) a Default or Event of Default shall have occurred and be continuing, (B) the Company could not Incur at least $1.00 of Indebtedness under the first paragraph 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 shall exceed the sum of (1) the aggregate amount of the Consolidated EBITDA (or, if Consolidated EBITDA is negative, minus the amount by which Consolidated EBITDA is less than zero) 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 4.16 plus (2) the aggregate 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 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 Net Cash Proceeds are used to Incur Indebtedness pursuant to clause (viii) of the second paragraph of Section 4.03(a) 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) The Company will Issuers shall not, and will shall not permit any of its their Restricted Subsidiaries toSubsidiaries, 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 in respect of its Restricted Subsidiaries’ Equity Interests Capital Stock (including, without limitation, including any payment in connection with any merger or consolidation involving the Company or its Restricted Subsidiaries) or to the direct or indirect holders of the Company’s an Issuer or any of its Restricted Subsidiaries’ Equity Interests in their capacity as such ) except (other than A) dividends or distributions payable in Equity Interests its Capital Stock (other than Disqualified Stock) of the Company or dividendsin options, payments warrants or other rights to purchase such Capital Stock and (B) dividends or distributions payable to the Company an Issuer or a Guarantor, or payable by a Restricted Subsidiary that of an Issuer which holds any equity interest in the paying Restricted Subsidiary (and if the Restricted Subsidiary paying the dividend or making the distribution is not a Guarantor Wholly-Owned Subsidiary, to any Restricted Subsidiaryits other holders of Capital Stock on a pro rata basis); , (ii) purchase, redeem redeem, retire or otherwise acquire or retire for value any Capital Stock of an Issuer held by Persons other than a Wholly-Owned Subsidiary of an Issuer or any Capital Stock of a Restricted Subsidiary of an Issuer held by any Affiliate of such Issuer, other than a Wholly-Owned Subsidiary (includingin either case, without limitation, other than in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or exchange for its Restricted Subsidiaries Capital Stock (other than any such Equity Interests owned by the Company or any GuarantorDisqualified Stock); ), (iii) make any payment on or with respect topurchase, or purchaserepurchase, redeem, defease or otherwise acquire or retire for value value, prior to scheduled maturity, scheduled repayment or scheduled sinking fund payment, any Indebtedness Subordinated Obligations (other than the purchase, repurchase or other acquisition of Subordinated Obligations purchased in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case due within one year of the Company date of purchase, repurchase or any of its Restricted Subsidiaries that is contractually subordinated to the Notes or any Note Guarantee (excluding any intercompany Indebtedness between or among the Company and any of the Guarantorsacquisition), except a payment of interest or principal at the Stated Maturity thereof (for purposes of clarity, the Existing Notes will not be deemed to be contractually subordinated to the Notes); or (iv) make any Restricted Investment (all other than a Permitted Investment) in any Person, (v) make any payment under any Performance Compensation Agreement or (vi) make any payment to Xxxx X. Xxxxx (including under a Performance Compensation Agreement or in his capacity as an employee of the Issuer or any Subsidiary) except for reimbursement for advances or other out-of-pocket costs and expenses incurred in the ordinary course of business (any such payments and dividend, distribution, purchase, redemption, repurchase, defeasance, other actions set forth acquisition, retirement, Investment or payment as described in preceding clauses (i) through (ivvi) above being collectively referred to as “a "Restricted Payments”Payment"), unless, ; if at the time of and after giving effect to the Issuer or such Restricted Subsidiary makes such Restricted Payment:

Limitation on Restricted Payments. The Company Lodgian will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly: , (i1) declare or pay any dividend or make any other payment or distribution on account of the Company’s or any of with respect to its Restricted Subsidiaries’ Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company or its Restricted Subsidiaries) or to the direct or indirect holders of the Company’s or any of its Restricted Subsidiaries’ Equity Interests in their capacity as such Capital Stock (other than dividends or distributions payable solely in Equity Interests shares of its Capital Stock (other than Disqualified Stock) or in options, warrants or other rights to acquire shares of the Company or dividends, payments or distributions payable to the Company or a Guarantor, or payable such Capital Stock) held by a Restricted Subsidiary that is not a Guarantor to any Restricted Subsidiary); (ii) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or its Restricted Subsidiaries (Persons other than any such Equity Interests owned by the Company or any Guarantor); (iii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness of the Company Lodgian or any of its Restricted Subsidiaries or make any payment on the Convertible Debentures or the CRESTS (including payments pursuant to the Lodgian Capital Trust Guarantee), (2) 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 (including options, warrants or other rights to acquire such shares of Capital Stock) held by any Person or (B) a Restricted Subsidiary other than the Company 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 Restricted Subsidiary) or any holder (or any Affiliate of such holder) of 5% or more of the Capital Stock of Lodgian, (3) 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 contractually subordinated in right of payment to the Notes or any Indebtedness of Lodgian or a Subsidiary Guarantor that is subordinated in right of payment to a Note Guarantee (excluding any intercompany Indebtedness between or among the Company and any of the Guarantors), except a payment of interest or principal at the Stated Maturity thereof (for purposes of clarity, the Existing Notes will not be deemed to be contractually subordinated to the Notes); or (iv4) make any Restricted Investment Investment, other than a Permitted Investment, in any Person (all such payments and or any other actions set forth described in clauses (i1) through (iv4) above being collectively referred to as “"Restricted Payments”), unless") if, at the time of of, and after giving effect to such to, the proposed Restricted Payment:

Limitation on Restricted Payments. (a) The Company will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly: , (i) declare or pay any dividend or make any other payment or distribution on account of the Company’s or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company or its Restricted Subsidiaries) or to the direct or indirect holders of the Company’s or any of its Restricted Subsidiaries’ Equity Interests in their capacity as such (other than dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company or dividends, payments or distributions payable to the Company or a Guarantor, or payable by a Restricted Subsidiary that is not a Guarantor to any Restricted Subsidiary); (ii) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or its Restricted Subsidiaries (other than any such Equity Interests owned by the Company or any Guarantor); (iii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness of 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 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), (ii) purchase, redeem, retire or otherwise acquire for value any shares of Capital Stock of (x) the Company or an Unrestricted Subsidiary (including options, warrants or other rights to acquire such shares of Capital Stock) held by any Person (other than the Company or a Wholly Owned Restricted 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 contractually subordinated in right of payment to the Notes or any Note a Subsidiary Guarantee (excluding any intercompany Indebtedness between or among the Company and any of the Guarantors), except a payment of interest or principal at the Stated Maturity thereof (for purposes of clarity, the Existing Notes will not be deemed to be contractually subordinated to the Notes); or (iv) make any Restricted Investment (all 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 and or any other actions set forth described in clauses (i) through (iv) above being collectively referred to as “"Restricted Payments”), unless") if, at the time of of, and after giving effect to such to, the proposed Restricted Payment:

Limitation on Restricted Payments. The Company will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly: , (i) declare or pay any dividend or make any other payment or distribution on account of the Company’s or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company or its Restricted Subsidiaries) or to the direct or indirect holders of the Company’s or any of its Restricted Subsidiaries’ Equity Interests in their capacity as such Capital Stock (other than dividends or distributions payable solely in Equity Interests shares of its or such Restricted Subsidiary's Capital Stock (other than Disqualified Redeemable Stock) of the Company same class held by such holders or dividendsin options, payments warrants or distributions payable other rights to the Company or a Guarantor, or payable acquire such shares of Capital Stock) held by a Restricted Subsidiary that is not a Guarantor to any Restricted Subsidiary); (ii) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or its Restricted Subsidiaries (Persons other than any such Equity Interests owned by the Company or any Guarantor); (iii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness of the Company or any of its Wholly Owned Restricted Subsidiaries Subsidiaries, (ii) purchase, redeem, retire or otherwise acquire for value any shares of Capital Stock of (A) the Company or an Unrestricted Subsidiary (including options, warrants or other rights to acquire such shares of Capital Stock) held by 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 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 contractually subordinated in right of payment to the Notes or any Note Guarantee (excluding any intercompany Indebtedness between or among the Company and any of the Guarantors), except a payment of interest or principal at the Stated Maturity thereof (for purposes of clarity, the Existing Notes will not be deemed to be contractually subordinated to the Notes); or (iv) make any Restricted Investment Investment, other than a Permitted Investment, in any Person (all such payments and or any other actions set forth described in clauses (i) through (iv) above being collectively referred to as “"Restricted Payments”), unless") if, at the time of of, and after giving effect to such to, the proposed Restricted Payment: (A) a Default or Event of Default shall have occurred and be continuing, (B) the Company could not Incur at least $1.00 of Indebtedness under the first paragraph of Section 4.03 or (C) the aggregate amount expended for all Restricted Payments (the amount 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) after the 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 plus (2) the aggregate 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, 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) 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 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 the amount of Investments previously made by the Company and any Restricted Subsidiary in such 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 Subsidiaries to, directly or indirectly: (i) declare or pay any dividend or make any other payment or distribution on account of the CompanyCompany Borrower’s or any of its Restricted Subsidiaries’ Equity Interests (includingInterests, without limitation, including any payment made in connection with any merger or consolidation involving the Company or its Restricted Subsidiaries) or to the direct or indirect holders of the Company’s or any of its Restricted Subsidiaries’ Equity Interests in their capacity as such Borrower (other than dividends dividends, payments or distributions (A) payable solely in Equity Interests (other than Disqualified Stock) of the Company Borrower or dividends, payments or distributions payable to the Company Borrower and its Restricted Subsidiaries; or a Guarantor, or payable (B) by a Restricted Subsidiary that is not so long as, in the case of any dividend or distribution payable on or in respect of any class or series of securities issued by a Guarantor to any Restricted Subsidiary other than a Wholly Owned Restricted Subsidiary, the Company Borrower or a Restricted Subsidiary receives at least -116- its pro rata share of such dividend or distribution in accordance with its Equity Interests in such class or series of securities); (ii) purchase, redeem purchase or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company Borrower or its Restricted Subsidiaries (any other than any such Equity Interests owned by direct or indirect parent of the Company or any Guarantor)Borrower; (iii) make any principal payment on or with respect toon, or purchaseredeem, redeemrepurchase, defease or otherwise acquire or retire for value value, in each case prior to any scheduled repayment or scheduled maturity, any Subordinated Indebtedness (other than the payment, redemption, repurchase, defeasance, acquisition or retirement of (A) Subordinated Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case due within one year of the Company date of such payment, redemption, repurchase, defeasance, acquisition or any of its Restricted Subsidiaries that is contractually subordinated to the Notes or any Note Guarantee retirement and (excluding any intercompany B) Indebtedness between or among the Company and any of the Guarantorspermitted under Section 6.1(b)(xi), except a payment of interest or principal at the Stated Maturity thereof (for purposes of clarity, the Existing Notes will not be deemed to be contractually subordinated to the Notes); or (iv) make any Restricted Investment Investment; (all such payments and other actions set forth in clauses (i) through (iv) above above, other than any of the exceptions thereto, being collectively referred to as “Restricted Payments”), unless, at the time of such Restricted Payment: (1) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof; (2) in the case of Restricted Payments described in Sections 6.2(a)(i), (ii) and (iii) above, immediately after giving effect to such transaction on a pro forma basis, the Company Borrower could Incur $1.00 of additional Indebtedness under Section 6.1(a); and (3) such Restricted Payment:, together with the aggregate amount of all other Restricted Payments made by the Company Borrower and its Restricted Subsidiaries after the Closing Date (including Restricted Payments permitted by clauses (b)(i), (b)(ii) (with respect to the 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 Payments permitted by clause (b) of this Section 6.2), is less than the sum of, without duplication, (A) 50% of the Consolidated Net Income of the Company Borrower for the period (taken as one accounting period) from June 30, 2014 to the end of the Company Borrower’s most recently ended fiscal quarter 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 from the issue or sale of Equity Interests of the Company Borrower or any direct or indirect parent of the 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 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 (C) 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 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, the Fair Market Value (as determined in -118-

Limitation on Restricted Payments. The Company will not, and any Guarantor or Restricted Subsidiary will not permit any of its Restricted Subsidiaries to, directly or indirectly: , without the prior written consent of the Holders of a Minimum Principal Amount, (ia) declare or pay any dividend or make any payment, distribution or return of capital (whether in cash, securities or other payment property) with respect to any Capital Stock of the Company, any Guarantor or distribution any Restricted Subsidiary, including any sinking fund or similar deposit, on account of the Company’s purchase, redemption, retirement, defeasance, acquisition, cancellation or termination of any such Capital Stock, or on account of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company or its Restricted Subsidiaries) or return of capital to the direct or indirect holders of the Company’s or any of its Restricted Subsidiaries’ Equity Interests in their capacity as such (other than dividends or distributions payable in Equity Interests (other than Disqualified Capital Stock) of the Company or dividends, payments or distributions payable to the Company or a Guarantor, or payable by a Restricted Subsidiary that is not a Guarantor to any Restricted Subsidiary); (iib) purchase, redeem or redeem, defease, otherwise acquire or retire for value (includingvalue, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or its Restricted Subsidiaries (other than any such Equity Interests owned by the Company or any Guarantor); (iii) make any payment on or with respect to, any Subordinated Indebtedness (it being understood that regularly scheduled interest payments with respect to Subordinated Indebtedness (other than Indebtedness under the SIS Documents) shall be permitted so long as not prohibited by the subordination terms thereof and no Default or purchase, redeem, defease Event of Default has occurred and is continuing) or otherwise acquire or retire for value any Indebtedness Capital Stock of the Company or any of its Guarantor or Restricted Subsidiaries that is contractually subordinated to the Notes or any Note Guarantee Subsidiary held by Persons (excluding any intercompany Indebtedness between or among the Company and any of the Guarantors), except a payment of interest or principal at the Stated Maturity thereof (for purposes of clarity, the Existing Notes will not be deemed to be contractually subordinated to the Notes); or (iv) make any Restricted Investment (all such payments as described in parts (a) and other actions set forth in clauses (ib) through (iv) above being collectively referred to as hereof, “Restricted Payments”); provided that (i) repurchases of stock from former employees, unlessofficers, at directors, consultants or other persons performing services for the time Company or any Guarantor or Restricted Subsidiary pursuant to the terms of stock repurchase plans, employee restricted stock agreements or similar agreements under which the Company or any Guarantor or Restricted Subsidiary has the option to repurchase such shares upon the occurrence of certain events, such as the termination of employment or service, or pursuant to a right of first refusal in an amount not to exceed 5% of the Capital Stock of the Company or Guarantor or Restricted Subsidiary then-outstanding in any fiscal year, (ii) Subsidiaries of the Company may declare and after giving effect pay dividends ratably with respect to such Restricted Payment:their Capital Stock and (iii) the Company may declare and pay dividends to Parent. Section 4.17

Limitation on Restricted Payments. The Company will shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly: , (i) declare or pay any dividend or make any other payment or distribution on account of the Company’s or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company or its Restricted Subsidiaries) or to the direct or indirect holders of the Company’s or any of its Restricted Subsidiaries’ Equity Interests in their capacity as such (other than dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company or dividends, payments or distributions payable to the Company or a Guarantor, or payable by a Restricted Subsidiary that is not a Guarantor to any Restricted Subsidiary); (ii) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or its Restricted Subsidiaries (other than any such Equity Interests owned by the Company or any Guarantor); (iii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness of to its Capital Stock held by Persons other than the Company or any of its Restricted Subsidiaries (other than 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 other than pro rata dividends or distributions on Common Stock of Restricted Subsidiaries other than the Guarantor), (ii) purchase, redeem, retire or otherwise acquire for value any shares of Capital Stock of the Company or the Guarantor (including options, warrants or other rights 49 42 to acquire such shares of Capital Stock) held by Persons other than the Company or any of its 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 contractually subordinated in right of payment to the Securities or of the Guarantor that is subordinated to the Notes or any Note Security Guarantee (excluding any intercompany Indebtedness between or among the Company and any of the Guarantors), except a payment of interest or principal at the Stated Maturity thereof (for purposes of clarity, the Existing Notes will not be deemed to be contractually subordinated to the Notes); or (iv) make any Restricted Investment Investment, other than a Permitted Investment, in any Person (all such payments and or any other actions set forth described in clauses (i) through (iv) above being collectively referred to as “"Restricted Payments”), unless") if, at the time of of, and after giving effect to such to, the proposed Restricted Payment:: (A) a Default or Event of Default shall have occurred and be continuing; (B) except with respect to Investments and dividends on the Common Stock of the Guarantor, the Company could not Incur at least $1.00 of Indebtedness under the first paragraph of Section 4.03; or (C) the aggregate amount of all Restricted Payments after the Closing Date 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 such amount) (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 sent to Holders pursuant to Section 4.19 plus (2) the aggregate Net Cash Proceeds received by the Company or the Guarantor after the Closing 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 or the Guarantor, or from the issuance to a Person who is not a Subsidiary of the Company or the Guarantor 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 the Stated Maturity of the Securities), less the amount invested in the Company pursuant to clause (iii) of the definition of "Change of Control" plus (3) an amount equal to the net reduction in Investments (other than Permitted Investments) made pursuant to this first paragraph of 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 (except to the extent any such payment 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 the amount of Investments previously made by the Company and any Restricted Subsidiary in such Person. 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 Section 4.03; (iii) the declaration or payment of dividends on the Common Stock of the 50 43

Limitation on Restricted Payments. The Company JLL will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly: , (i) declare or pay any dividend or make any other payment or distribution on account or with respect to its Capital Stock (other than (x) dividends or distributions payable solely in shares of the Company’s 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 Capital Stock of Restricted Subsidiaries held by minority stockholders) held by persons other than JLL or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company or its Restricted Subsidiaries) or to the direct or indirect holders of the Company’s or any of its Restricted Subsidiaries’ Equity Interests in their capacity as such (other than dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company or dividends, payments or distributions payable to the Company or a Guarantor, or payable by a Restricted Subsidiary that is not a Guarantor to any Restricted Subsidiary); (ii) purchase, redeem redeem, retire or otherwise acquire or retire for value any shares of Capital Stock of (includingA) JLL, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or its Restricted Subsidiaries (other than any such Equity Interests owned by the Company or any Guarantor (including options, warrants or other rights to acquire such shares of Capital Stock) held by any person other than the Company or any other Guarantor 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 JLL (other than a Wholly Owned Restricted Subsidiary) or any holder of more than 5% of the Capital Stock of JLL, (iii) make any payment on voluntary or with respect tooptional principal payment, or purchasevoluntary or optional redemption, redeemrepurchase, defease defeasance, or otherwise acquire other acquisition or retire retirement for value value, of Indebtedness of any Guarantor that is subordinated in right of payment to its Note Guarantee or Indebtedness of the Company or any of its Restricted Subsidiaries that is contractually subordinated subordinate in right of payment to the Notes or any Note Guarantee (excluding any intercompany Indebtedness between or among the Company and any of the Guarantors), except a payment of interest or principal at the Stated Maturity thereof (for purposes of clarity, the Existing Notes will not be deemed to be contractually subordinated to the Notes); or (iv) make any Restricted Investment Investment, other than a Permitted Investment, in any person (all such payments and or any other actions set forth described in clauses (i) through (iv) above being collectively referred to as “"Restricted Payments”), unless") if, at the time of of, and after giving effect to such to, the proposed Restricted Payment:

Limitation on Restricted Payments. The Company will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly: , (i) declare or pay any dividend or make any other payment or distribution on account of the Company’s or any of with respect to its Restricted Subsidiaries’ Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company or its Restricted Subsidiaries) or to the direct or indirect holders of the Company’s or any of its Restricted Subsidiaries’ Equity Interests in their capacity as such Capital Stock (other than (x) dividends or distributions payable solely in Equity Interests shares of its Capital Stock (other than Disqualified Redeemable Stock) or in options, warrants or other rights to acquire shares of the Company or dividends, payments such Capital Stock and (y) pro rata dividends or distributions payable to the Company or a Guarantor, or payable by a Restricted Subsidiary that is not a Guarantor to any Restricted Subsidiary); (ii) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests on Common Stock of the Company or its Restricted Subsidiaries (held by minority stockholders) held by Persons other than any such Equity Interests owned by the Company or any Guarantor); (iii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness of the Company or any of its Restricted Subsidiaries Subsidiaries, (ii) purchase, redeem, retire or otherwise acquire for value any shares of Capital Stock of (A) the Company or an Unrestricted Subsidiary (including options, warrants or other rights to acquire such shares of Capital Stock) held by 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 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 contractually subordinated to the Notes or any Note Guarantee (excluding any intercompany Indebtedness between or among the Company and any in right of the Guarantors), except a payment of interest or principal at the Stated Maturity thereof (for purposes of clarity, the Existing Notes will not be deemed to be contractually subordinated to the Notes); , or (iv) make any Restricted Investment Investment, other than a Permitted Investment, in any Person (all such payments and or any other actions set forth described in clauses (i) through (iv) above being collectively referred to as “"Restricted Payments”), unless") if, at the time of of, and after giving effect to such to, the proposed Restricted Payment: (A) a Default or Event of Default shall have occurred and be continuing, (B) the Company could not Incur at least $1.00 of Indebtedness under the first paragraph of Section 4.03(a) or (C) the aggregate amount 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 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 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 Net Cash Proceeds are used to Incur Indebtedness pursuant to clause (xi) of the second paragraph of 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. The Company Borrower will not, and will not permit any of its Restricted Subsidiaries to, declare, pay or make, directly or indirectly, any Restricted Payment, except: (ia) the Borrower may declare and pay dividends with respect to its Equity Interests payable solely in additional shares of its common stock; (b) 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 accordance with stock or pay any dividend other benefit plans for management, employees or make any other payment or distribution on account independent consultants of the Company’s Borrower and its Restricted Subsidiaries; (d) the Borrower may make Restricted Payments to pay for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Borrower held by any future, present or former employee, director, manager or consultant of the Borrower or any of its Subsidiaries, or their estates, descendants, family, spouse or former spouse pursuant to any management equity plan or stock option or phantom equity plan or any other management or employee benefit plan or agreement, or any stock subscription or shareholder agreement; provided that, except with respect to non-discretionary purchases, the aggregate Restricted Subsidiaries’ Equity Interests Payments made under this clause (including, without limitation, any payment in connection with any merger or consolidation involving the Company or its Restricted Subsidiariesd) or (i) prior to the direct or indirect holders of the Company’s or any of its Restricted Subsidiaries’ Equity Interests in their capacity as such (other than dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company or dividendsWaiver Finalization Date, payments or distributions payable to the Company or a Guarantor, or payable by a Restricted Subsidiary that is do not a Guarantor to any Restricted Subsidiary); exceed $300,000 and (ii) after the Waiver Finalization Date, do not exceed in any calendar year $5.0 million; (e) [reserved]; (f) the 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 retire for value combinations, business combinations or conversions of convertible securities; (including, without limitation, in connection with h) the Borrower or any merger Subsidiary may receive or consolidation involving accept the Company) return to the Borrower or any Restricted Subsidiary of Equity Interests of the Company or its Restricted Subsidiaries (other than any such Equity Interests owned by the Company Borrower or any Guarantor); (iii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness Subsidiary constituting a portion of the Company or any purchase price consideration in settlement of its Restricted Subsidiaries that is contractually subordinated to the Notes or any Note Guarantee (excluding any intercompany Indebtedness between or among the Company and any of the Guarantors), except a payment of interest or principal at the Stated Maturity thereof (for purposes of clarity, the Existing Notes will not be deemed to be contractually subordinated to the Notes)indemnification claims; or (iv) make any Restricted Investment (all such payments and other actions set forth in clauses (i) through the Borrower or any Subsidiary may make payments or distributions to dissenting stockholders pursuant to applicable law; (ivj) above being collectively referred the Borrower may repurchase its Equity Interests pursuant to its existing share repurchase program announced on February 4, 2016 or any other stock repurchase program or plan so long as “Restricted Payments”)(1) no Default or Event of Default has occurred and is continuing prior to making any such repurchase or would arise after giving effect (including giving effect on a pro forma basis) thereto, unless, (2) the aggregate amount of such repurchases does not exceed $70 million and (3) at the time of and after giving effect such repurchase, the Consolidated Total Debt to such Consolidated EBITDA Ratio is not greater than 3.50:1.00; (k) the Borrower may make other Restricted Payment:Payments not otherwise permitted hereunder in an aggregate principal amount not to exceed $10.0 million minus (II) any Investments pursuant to Section 10.6(z); -134-#89847286v15

Limitation on Restricted Payments. The Company Guarantor will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly: , (i) declare or pay any dividend or make any other payment or distribution on account of or with respect to its Capital Stock held by Persons other than the Company’s Guarantor or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company or its Restricted Subsidiaries) or to the direct or indirect holders of the Company’s or any of its Restricted Subsidiaries’ Equity Interests in their capacity as such Subsidiary (other than (x) dividends or distributions payable solely in Equity Interests 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 the Company or dividends, payments such Capital Stock and (y) pro rata dividends or distributions payable on Common Stock of Restricted Subsidiaries; provided that such payments made to Persons other than the Company Guarantor or a Guarantor, or payable by a Restricted Subsidiary that is not a Guarantor to any Restricted Subsidiaryshall be included in calculating whether the conditions of clause (C) of this first paragraph of Subsection 11(b)(2) have been met); , (ii) purchase, redeem redeem, retire or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests shares of Capital Stock of the Company Guarantor (including options, warrants or its Restricted Subsidiaries (other rights to acquire such shares of Capital Stock) held by Persons other than any such Equity Interests owned by the Company Guarantor or any Guarantor); of its Wholly-Owned Restricted Subsidiaries, (iii) make any payment on voluntary or with respect tooptional principal payment, or purchasevoluntary or optional redemption, redeemrepurchase, defease defeasance, or otherwise acquire other acquisition or retire retirement for value any value, of Indebtedness of the Company or any of its Restricted Subsidiaries Guarantor that is contractually subordinated in right of payment to the Notes or any Note Guarantee (excluding any intercompany Indebtedness between or among the Company and any of the Guarantors), except a payment of interest or principal at the Stated Maturity thereof (for purposes of clarity, the Existing Notes will not be deemed to be contractually subordinated to the Notes); Securities or (iv) make any Restricted Investment Guarantor Investment, other than a Permitted Guarantor Investment, in any Person (all such payments and or any other actions set forth described in clauses (i) through (iv) above being collectively referred to as “Restricted Payments”), unless"RESTRICTED PAYMENTS") if, at the time of of, and after giving effect to such to, the proposed Restricted Payment:: (A) a Default or Event of Default shall have occurred and be continuing, (B) the Guarantor could not Incur at least $1.00 of Indebtedness under the fast paragraph of Subsection 11(b)(1) 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 evidenced by a Board Resolution) made after the Closing Date 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 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 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 sent to the Administrative Agent pursuant to Section 8.1(a)(2) of the Financing Agreement plus (2) the aggregate Net Cash Proceeds received by the Guarantor after the Closing Date 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 Guarantor, including an issuance or sale permitted by this Guarantee of Indebtedness of the Guarantor for cash subsequent to the Closing Date upon the conversion of such Indebtedness into Capital Stock (other than Disqualified Stock) 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 Guarantor (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 the Maturity Date), in each case except to the extent such Net Cash Proceeds are used to Incur Indebtedness pursuant to clause (viii) of the second paragraph under Subsection 11(b)(1), plus (3) an amount equal to the net reduction in Guarantor Investments made pursuant to this first paragraph of this Subsection 11(b)(2) 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 Guarantor or any Restricted Subsidiary or from the Net Cash Proceeds from the sale of any such Guarantor 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 "GUARANTOR INVESTMENTS"), not to exceed, in each case, the amount of Guarantor Investments previously made and treated as Restricted Payments by the Guarantor or any Restricted Subsidiary in such Person or Unrestricted Subsidiary.

Limitation on Restricted Payments. The Company will (i) may not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly: (i) , declare or pay any dividend dividend, or make any other payment or distribution on account of the Company’s or any distribution, in respect of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company or its Restricted Subsidiaries) Capital Stock or to the direct or indirect holders of the Company’s or any of its Restricted Subsidiaries’ Equity Interests thereof (in their capacity as such (other than such), excluding any dividends or distributions payable solely in Equity Interests shares of its Capital Stock (other than Disqualified Stock) or in options, warrants or other rights to acquire 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 (a) any Capital Stock of the Company or any 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 Related Person of the Company or any securities convertible or exchangeable -71- into shares of Capital Stock of the Company or any Related Person of the Company; (iii) 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 (iv) may not, and may not permit any Restricted Subsidiary to, redeem, defease, repurchase, retire or otherwise acquire or retire for value, prior to any scheduled maturity, repayment or sinking fund payment, Debt of the Company which is subordinate in right of payment to the Securities (each of clauses (i) through (iv) being a "Restricted Payment") if: (1) a Default or an Event of Default shall have occurred and is continuing; or (2) upon giving effect to such Restricted Payment, the Company could not Incur at least $1.00 of additional Debt pursuant to the provisions of the first paragraph of Section 1007; or (3) upon giving effect to such Restricted Payment, the aggregate of all Restricted Payments from the Preferred Issue Date exceeds the sum of: (a) 50% of cumulative Consolidated Net Income (or, in the case Consolidated Net Income shall be negative, less 100% of such deficit) since the end of the last full fiscal quarter prior to the Preferred Issue Date through the last day of the last full fiscal quarter ending immediately preceding the date of such Restricted Payment; plus (b) $5 million; plus (c) 100% of the net reduction in Investments in any Unrestricted Subsidiary resulting from payments of interest on Debt, dividends, repayments of loans or advances, or other transfers of assets, in each case to the Company or any Restricted Subsidiary of the Company from such Unrestricted Subsidiary (except to the extent that any such payment is included in the calculation of Consolidated Net Income) or from redesignations of Unrestricted Subsidiaries as Restricted Subsidiaries; provided that the amount included in this clause (c) shall not 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 the Preferred Issue Date, 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), 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 dividends, payments or distributions payable to options on Capital Stock (other than Disqualified Stock) of the Company or a Guarantor, or payable 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 that is not a Guarantor to Subsidiary) of the Company after the Preferred Issue Date. Notwithstanding the foregoing, the Company may (i) pay any Restricted Subsidiary)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) purchase, redeem repurchase any shares of its Common Equity or otherwise options to acquire its Common Equity from Persons who were formerly officers or retire for value (including, without limitation, in connection with any merger or consolidation involving employees of the Company, provided that the aggregate amount of all such repurchases made pursuant to this clause (ii) any Equity Interests of shall not exceed $2 million, plus the Company or its Restricted Subsidiaries (other than any such Equity Interests owned aggregate cash proceeds received by the Company since the date of this Indenture from issuances of its Common Equity or any Guarantor); (iii) make any payment on or with respect tooptions to acquire its Common Equity to members, or purchaseofficers, redeem, defease or otherwise acquire or retire for value any Indebtedness managers and employees of the Company or any of its Restricted Subsidiaries that is contractually subordinated to the Notes or any Note Guarantee Subsidiaries; (excluding any intercompany Indebtedness between or among iii) the Company and its Restricted Subsidiaries may refinance any of the Guarantors), except a payment of interest or principal at the Stated Maturity thereof (for purposes of clarity, the Existing Notes will not be deemed to be contractually subordinated to the Notes); or Debt otherwise permitted by clause (iv) make any Restricted Investment (all such payments of the second paragraph of Section 1007; and other actions set forth in clauses (i) through (iv) above being collectively referred the Company and its Restricted Subsidiaries may retire or repurchase any Capital Stock of the Company or of any Restricted Subsidiary of the Company in exchange for, or out of the proceeds of the substantially concurrent sale (other than to as “a Restricted Payments”)Subsidiary of the Company) of, unlessCapital Stock (other than Disqualified Stock) of the Company. If the Company makes a Restricted Payment which, at the time of and after giving effect to the making of such Restricted Payment:, would in the good faith determination of the Company be permitted under this Indenture, such 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.

Limitation on Restricted Payments. The Company (i) will not, directly or indirectly, declare or pay any dividend, or make any distribution, of any kind or character (whether in cash, property or securities) in respect of any class of its Capital Stock or to the holders of any class of its Capital Stock (other than dividends or distributions payable solely in shares of its Capital Stock or in options, warrants or other rights to acquire its Capital Stock), (ii) will not, and will not permit any Subsidiary of its Restricted Subsidiaries the Company to, directly or indirectly: (i) declare or pay any dividend or make any other payment or distribution on account of the Company’s or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company or its Restricted Subsidiaries) or to the direct or indirect holders of the Company’s or any of its Restricted Subsidiaries’ Equity Interests in their capacity as such (other than dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company or dividends, payments or distributions payable to the Company or a Guarantor, or payable by a Restricted Subsidiary that is not a Guarantor to any Restricted Subsidiary); (ii) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Companya) any Equity Interests Capital Stock of the Company or its Restricted Subsidiaries any 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 Related Person of the Company other than any such Equity Interests owned by purchase, redemption, acquisition or retirement in which all of the value resulting therefrom is paid to the Company or any Guarantor); a Wholly-Owned Subsidiary, (iii) make will not make, or permit any Subsidiary of the Company to make, any Investment in, or payment on a Guarantee of any obligation of, any Affiliate or with respect any Related Person, other than the Company, a Wholly-Owned Subsidiary of the Company or a Person which is a Subsidiary after such Investment, (iv) will not, and will not permit any Subsidiary of the Company to, or purchase, redeem, defease (including, but not limited to, legal or covenant defeasance), repurchase (including pursuant to any provision for repayment at the option of the holder thereof), retire or otherwise acquire or retire for value prior to any Indebtedness scheduled maturity, mandatory repayment or mandatory sinking fund payment, Debt (other than the Notes) which is subordinate in right of the Company or any of its Restricted Subsidiaries that is contractually subordinated payment to the Notes or the Guarantee, and (v) will not, and will not permit any Note Guarantee (excluding any intercompany Indebtedness between or among Subsidiary of the Company and any of the Guarantors)to, except a payment of interest or principal at the Stated Maturity thereof (for purposes of clarity, the Existing Notes will not be deemed to be contractually subordinated to the Notes); or (iv) make any Restricted Investment in any Unrestricted Subsidiary (all such payments and other actions set forth the transactions described in clauses Clauses (i) through (ivv) above being collectively referred to herein as “Restricted Payments”), unless, if at the time of and after giving effect to such Restricted Paymentthereof:

Limitation on Restricted Payments. (A) The Company will not, and the Company will not permit any of its Restricted Subsidiaries to, directly or indirectly: (i) declare or pay any dividend or make any other payment or distribution (a) on account of the Company’s or any of its Restricted Subsidiaries’ Equity Interests Capital Stock (including, without limitation, including any payment made in connection with any merger or consolidation involving the Company or any of its Restricted Subsidiaries) or (b) to the direct or indirect holders of the Company’s or any of its Restricted Subsidiaries’ Equity Interests Capital Stock in their capacity as such (holders, other than (x) dividends or distributions by the Company payable solely in Equity Interests Capital Stock (other than Disqualified Stock) of the Company or dividends, payments (y) dividends or distributions payable by the Company or any of its Subsidiaries to the Company or a Guarantor, another Subsidiary (and in the case of any dividend or distribution payable on or in respect of any class or series of securities issued by a Restricted Subsidiary that is not other than a Guarantor to any Restricted Wholly-Owned Subsidiary, the Company or such Subsidiary receives at least its pro rata share of such dividend or distribution in accordance with its Capital Stock in such class or series of securities); (ii) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or its Restricted Subsidiaries (other than any such Equity Interests owned by the Company or any Guarantor); (iii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value (including any Indebtedness of payment made in connection with any merger or consolidation involving the Company or any of its Restricted Subsidiaries) any Capital Stock of the Company or any Subsidiary held by Persons other than the Company or any Subsidiary; (iii) purchase, repay, prepay, repurchase, redeem, defease, acquire or retire for value any Indebtedness of the Company and its Subsidiaries that is contractually subordinated junior in right of payment or lien priority to the Notes (including the Second Lien Indebtedness) or any Note Guarantee the Existing Convertible Notes (excluding any intercompany Indebtedness between or among the Company and any of the GuarantorsPermitted Refinancing Indebtedness in respect thereof), except a in each case any payment of interest or principal at the Stated Maturity thereof (for purposes of clarity, the Existing Notes will not be deemed to be contractually subordinated to the Notes)stated maturity thereof; or (iv) make any Restricted Investment other than a Permitted Investment, (all such payments and other actions set forth in clauses (i) through (iv) above being collectively referred to as “Restricted Payments”). (B) Notwithstanding anything to the contrary contain herein, unlessthe provisions of this Section 3.11 will not prohibit: (i) the payment of any dividend or distribution or consummation of any redemption within sixty (60) days after the date of declaration thereof or the giving of a redemption notice related thereto, if at the time date of declaration or notice such payment would have complied with any other provision of this Section 3.11; - 53 - (ii) cashless repurchases of Capital Stock deemed to occur upon the exercise of stock options, warrants or other securities convertible into or exercisable or exchangeable for Capital Stock if such Capital Stock represents a portion of the exercise, conversion or exchange price thereof; (iii) any purchase, repurchase, redemption, defeasance or other acquisition or retirement for value of the Indebtedness of the Company or any Subsidiary junior to the Notes upon a Change of Control or Asset Sale or analogous construct contained in the instrument pursuant to which such Indebtedness or Disqualified Stock was issued pursuant to a provision no more favorable, including purchase price, to the holders thereof than the provisions set forth under Section 3.12 and Section 3.17, as applicable, but only if the Company or such Subsidiary has first complied with its obligations under Section 3.12 and Section 3.17, as applicable; (iv) each Subsidiary may make Restricted Payments to the Company or another Subsidiary which is the immediate parent of the Subsidiary making such Restricted Payment; (v) repurchases of Capital Stock deemed to occur (a) upon the exercise or conversion of stock options, warrants, convertible notes or similar rights to acquire Capital Stock to the extent that such Capital Stock represents all or a portion of the exercise, exchange or conversion price of those stock options, warrants, convertible notes or similar rights, or (b) upon the withholding of a portion of Capital Stock granted or awarded to a current or former director, officer, employee, manager or director of the Company or any of its Subsidiaries (or consultant or advisor or any spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees of any of the foregoing) solely to the extent necessary to pay for the taxes payable by such Person upon such grant or award (or upon the vesting thereof); (vi) a Restricted Payment to pay for the repurchase, retirement or other acquisition for value of Capital Stock of the Company (a) held by any future, present or former employee, director, officer or consultant of the Company or any other Subsidiary upon such Person’s death, disability, retirement or termination of employment and (b) pursuant to and accordance with any management equity plan or stock option plan or any other management or employee benefit plan or other agreement or arrangement; provided, however, that the aggregate Restricted Payments made under this clause (vi)(b) do not exceed $2,500,000 in any calendar year; (vii) the making of any Restricted Payment using, in exchange for, or out of or with the net cash proceeds from the substantially concurrent contribution to the common equity of the Company or from the substantially concurrent sale (other than to a Subsidiary) of, Capital Stock (other than Disqualified Stock) of the Company to the extent such proceeds are not otherwise applied to the making of Restricted Payments pursuant to this Section 3.11; (viii) any non Wholly-Owned Subsidiary may make Restricted Payments (which may be in cash) to its shareholders, members or partners generally, so long as the Company - 54 - or the Subsidiary which owns the Capital Stock in the Subsidiary making such Restricted Payment receives at least its pro rata share thereof (based upon its relative holding of the Capital Stock in the Subsidiary making such Restricted Payment and taking into account the relative preferences, if any, of the various classes of Capital Stock of such Subsidiary); (ix) the payment of cash in lieu of the issuance of fractional shares of Capital Stock in connection with any dividend or split of, or upon exercise, conversion or exchange of warrants, options or other securities exercisable or convertible into, or exchangeable for Capital Stock of the Company or in connection with the issuance of any dividend otherwise permitted to be made under this Section 3.11; (x) (a) any conversion of the Second Lien Indebtedness to Capital Stock of the Company in accordance with the Second Lien Indenture, and (b) the payment (either in cash or by converting such cash amount into additional Capital Stock of the Company) of any Make-Whole Amount under and as defined in the Second Lien Indenture, or any other amount that may become due in connection with any conversion of the Second Lien Indebtedness (other than in respect of the Conversion Consideration due thereon under and as defined in the Second Lien Indenture); provided that any such cash payment shall be subject to no Default or Event of Default and pro forma compliance with Section 3.16 after giving effect to such cash payment; (xi) the repurchase, redemption, defeasance or other acquisition or retirement for value of the Existing Convertible Notes in exchange for, or with the net proceeds from, a substantially concurrent incurrence of Permitted Refinancing Indebtedness or of Second Lien Indebtedness, in each case, as permitted under Section 3.09; (xii) payments or distributions to dissenting stockholders pursuant to applicable law, pursuant to or in connection with a consolidation, amalgamation, merger or transfer of all or substantially all of the assets of the Company and its Subsidiaries, taken as a whole, that complies with Section 6.01; provided that as a result of such consolidation, amalgamation, merger or transfer of assets, the Company shall have made a Change of Control Offer (if required by this Indenture) and that all Notes tendered by Holders in connection with such Change of Control Offer have been repurchased, redeemed or acquired for value; and (xiii) other Restricted Payment:Payments in an amount not to exceed $2,500,000 in the aggregate. (C) For purposes of determining compliance with this Section 3.11, if any Restricted Payment (or portion thereof) would be permitted pursuant to one or more provisions described above, the Company may divide and classify such Restricted Payment in any manner that complies with this covenant and may later divide and classify any such Restricted Payment so long as the Restricted Payment (as so divided and/or reclassified) would be permitted to be made in reliance on the applicable exception as of the date of such reclassification. - 55 - (D) Notwithstanding the foregoing or anything else contained in this Indenture, no Disposition of Material Intellectual Property to a Person other than a Note Party shall be permitted other than a Disposition constituting a Permitted IP License. Section 3.12.

Limitation on Restricted Payments. The Company will and the Parent shall not, and will shall not permit any of its their respective Restricted Subsidiaries to, directly or indirectly: (i) declare or pay any dividend or make any other payment or distribution on account of the Company’s 's, the Parent's or any of its their respective Restricted Subsidiaries’ ' Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company or its Restricted Subsidiariesother than: (1) or to the direct or indirect holders of the Company’s or any of its Restricted Subsidiaries’ Equity Interests in their capacity as such (other than dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company or dividends, payments the Parent; (2) dividends or distributions payable to the Company or a Guarantor, or payable by a Restricted Subsidiary of the Company or the Parent (other than the Company), provided that to the extent that a portion of such dividend or distribution is paid to a holder of Equity Interests of a Restricted Subsidiary other than the Company, the Parent or a Restricted Subsidiary of the Company or the Parent, such portion of such dividend or distribution is not a Guarantor to any greater than such holder's pro rata aggregate common equity interest in such Restricted Subsidiary; and (3) dividends or distributions payable on Existing Preferred OP Units and Preferred OP Units issued in compliance with Section 4.9 hereof); (ii) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company, the Parent or any Restricted Subsidiary of the Company or its Restricted Subsidiaries the Parent or other Affiliate of the Company or the Parent (other than (A) any such Equity Interests owned by the Company, the Parent or any Restricted Subsidiary of the Company or the Parent, (B) any GuarantorExisting Preferred OP Units and (C) any Preferred OP Units issued in compliance with Section 4.9 hereof); (iii) make any payment on or with respect to, or purchase, redeem, defease redeem or otherwise acquire or retire for value any Indebtedness of the Company, the Parent or any Restricted Subsidiary of the Company or any of its Restricted Subsidiaries the Parent that is contractually subordinated or junior in right of payment, by its terms, to the Notes or any Note Guarantee (excluding any intercompany Indebtedness between thereof prior to the scheduled final maturity or among the Company and any of the Guarantors), except a sinking fund payment dates for payment of principal and interest in accordance with the original documentation for such subordinated or principal at the Stated Maturity thereof (for purposes of clarity, the Existing Notes will not be deemed to be contractually subordinated to the Notes)junior Indebtedness; or (iv) make any Restricted Investment (all such payments and other actions set forth in clauses (i) through (iv) above being collectively referred to as “"Restricted Payments”"), unless, at the time of and after giving effect to such Restricted Payment:

Limitation on Restricted Payments. (a) The Company will not, and will not cause or permit any of its the Restricted Subsidiaries to, directly or indirectly: (i) declare or pay any dividend or make any other payment or distribution on account or in respect of the Company’s or any shares of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company or its Restricted Subsidiaries) or Capital Stock to the direct or indirect holders of the Company’s or any of its Restricted Subsidiaries’ Equity Interests in their capacity as such (Capital Stock, other than (x) dividends or distributions payable in Equity Interests (other than Disqualified Stock) Qualified Capital Stock of the Company or dividends, payments and (y) dividends or distributions by a Restricted Subsidiary so long as, in the case of any dividend or distribution payable to in respect of any class or series of securities issued by a Restricted Subsidiary other than a Wholly Owned Restricted Subsidiary, the Company or a Guarantor, or payable by a Restricted Subsidiary that is not a Guarantor to any Restricted Subsidiary)receives at least its pro rata share of such dividend or distribution in accordance with its Equity Interests in such class or series of securities; (ii) subject to the last two paragraphs of this Section 409, purchase, redeem or otherwise acquire or retire for value any Equity Interests (includingother than, without limitationwith respect to the Company, any Permitted Convertible Indebtedness, any Permitted Bond Hedge Transactions or any Permitted Warrant Transactions) of the Company including in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or its Restricted Subsidiaries (other than any such Equity Interests owned by the Company or any Guarantor)consolidation; (iii) make any principal payment on or with respect toon, or purchase, redeem, defease defease, retire or otherwise acquire for value, prior to any scheduled principal payment, sinking fund or retire for value maturity, any Subordinated Indebtedness of the Company or any Restricted Subsidiary (other than the principal payment on, or the purchase, redemption, defeasance, retirement or other acquisition for value of, Subordinated Indebtedness made in satisfaction of its Restricted Subsidiaries that is contractually subordinated to the Notes or any Note Guarantee (excluding any intercompany Indebtedness between anticipation of satisfying a sinking fund obligation, principal installment or among the Company and any final maturity within one year of the Guarantors)due date of such obligation, except a payment of interest installment or principal at the Stated Maturity thereof (for purposes of clarity, the Existing Notes will not be deemed to be contractually subordinated to the Notesfinal maturity); or (iv) make any Restricted Investment (all such payments and other than Permitted Investments) (each of the foregoing actions set forth in clauses (i), (ii), (iii) through and (iv) above being collectively referred to as a “Restricted PaymentsPayment”), unless, if at the time of and such Restricted Payment or immediately after giving effect to such Restricted Paymentthereto:

Limitation on Restricted Payments. The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly: (i) declare or pay any dividend or make any other payment or distribution Distribution on account of the Company’s 's or any of its Restricted Subsidiaries’ ' Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company or its Restricted Subsidiaries) or to the direct or indirect holders of the Company’s or any of its Restricted Subsidiaries’ Equity Interests in their capacity as such (other than dividends or distributions Distributions payable in Equity Interests (other than Disqualified Stock) Stock of the Company or dividends, payments dividends or distributions Distributions payable to the Company or or, in the case of a Subsidiary, from such Subsidiary to any Wholly Owned Subsidiary of the Company that is a Guarantor, or payable by a Restricted Subsidiary that is not a Guarantor to any Restricted Subsidiary); (ii) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or its Restricted Subsidiaries any Subsidiary or other Affiliate of the Company (other than any such Equity Interests owned by the Company or any Wholly Owned Subsidiary of the Company that is a Guarantor); (iii) make any payment on or with respect to, or purchase, redeem, defease redeem or otherwise acquire or retire for value any Indebtedness of that is pari passu with or subordinated to the Securities (other than the Securities 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 Company or any Subsidiary of its Restricted Subsidiaries that is contractually subordinated any Junior Debt or debt ranking pari passu with the Securities prior to the Notes any scheduled maturity, scheduled repayment or any Note Guarantee (excluding any intercompany Indebtedness between or among the Company and any of the Guarantors), except a payment of interest or principal at the Stated Maturity thereof (for purposes of clarity, the Existing Notes will not be deemed to be contractually subordinated to the Notes)scheduled sinking fund payment; or (ivv) make any Restricted Investment (all such payments and other actions set forth in clauses (i) through (iv) above plus the net amount of Restricted Investment being collectively referred to as “"Restricted Payments”"), unless, at the time of and after giving effect to such Restricted Payment:

Limitation on Restricted Payments. (a) The Company will not, and will not permit any of its Restricted Subsidiaries toSubsidiary, 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 with respect to its Restricted Subsidiaries’ Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company or its Restricted Subsidiaries) or to the direct or indirect holders of the Company’s or any of its Restricted Subsidiaries’ Equity Interests in their capacity as such Capital Stock (other than (x) dividends or distributions payable solely in Equity Interests shares of its Capital Stock (other than Disqualified Stock) or in options, warrants or other rights to 26 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 Company or dividends, payments or distributions payable to fiscal quarter beginning immediately following the Company or a Guarantor, or payable Closing Date) held by a Restricted Subsidiary that is not a Guarantor to any Restricted Subsidiary); (ii) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or its Restricted Subsidiaries (Persons other than any such Equity Interests owned by the Company or any Guarantor); (iii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness of the Company or any of its Restricted Subsidiaries 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 contractually subordinated in right of payment to the Notes or of any Note Guarantee (excluding any intercompany Indebtedness between or among the Company and any of the Guarantors), except a payment of interest or principal at the Stated Maturity thereof (for purposes of clarity, the Existing Notes will not be deemed to be contractually Subsidiary Guarantor that is subordinated to the Notes); 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 Restricted Investment Investment, other than a Permitted Investment, in any Person (all such payments and or any other actions set forth described in clauses (i) through (iv) above being collectively referred to as “Restricted Payments”), unless"RESTRICTED PAYMENTS") if, at the time of of, and after giving effect to such 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. The Company So long as any of the Securities are outstanding, Holdings will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly: , (i) declare or pay any dividend or make any other payment or distribution on account of the Company’s or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company or its Restricted Subsidiaries) or to the direct or indirect holders of the Company’s or any of its Restricted Subsidiaries’ Equity Interests in their capacity as such capital stock (other than dividends or distributions payable solely in Equity Interests shares of its or such Restricted Subsidiary's capital stock (other than Disqualified Redeemable Stock) of the Company same class held by such holders or dividendsin options, payments warrants or distributions payable other rights to the Company acquire such shares of capital stock) held by Persons other than Holdings or a Guarantor, or payable by a Restricted Subsidiary that is not a Guarantor to any another Restricted Subsidiary); , (ii) purchase, redeem redeem, retire or otherwise acquire for value, any shares of capital stock of Holdings, any Restricted Subsidiary or retire for value any Unrestricted Subsidiary (includingincluding options, without limitation, in connection with any merger warrants or consolidation involving the Companyother rights to acquire such shares of capital stock) any Equity Interests of the Company or its Restricted Subsidiaries (held by Persons other than any such Equity Interests owned by the Company Holdings or any Guarantor); another Restricted Subsidiary, (iii) make any payment on voluntary or with respect tooptional principal payment, or purchasevoluntary or optional redemption, redeemrepurchase, defease defeasance or otherwise acquire other acquisition or retire retirement for value any value, of Indebtedness of the Company or any of its Restricted Subsidiaries Holdings that is contractually subordinated in right of payment to the Notes or any Note Guarantee (excluding any intercompany Indebtedness between or among the Company and any of the Guarantors), except a payment of interest or principal at the Stated Maturity thereof (for purposes of clarity, the Existing Notes will not be deemed to be contractually subordinated to the Notes); Securities or (iv) make any Investment in any Affiliate (other than Holdings or a Restricted Investment Subsidiary) or Unrestricted Subsidiary (all such payments and or any other actions set forth described in clauses (i) through (iv) above being collectively referred to as “"Restricted Payments”), unless, ") if at the time of and after giving effect to such the proposed Restricted Payment: (A) an Event of Default or event that, after the giving of notice or lapse of time or both, would become an Event of Default shall have occurred and be continuing, (B) Holdings (in the case Holdings or its Restricted Subsidiaries will make the Restricted Payment) could not Incur at least $1.00 of Indebtedness under the first paragraph in Section 4.3(a) of this Indenture or Silgan (in the case Silgan or its Restricted Subsidiaries will make the Restricted Payment) could not Incur at least $1.00 of Indebtedness under clause (i) of Section 4.3(b) of this Indenture or (C) the aggregate amount expended for all Restricted Payments (the amount 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) after the date hereof (other than any Restricted Payments described in clauses (ii) and (iii) of the second paragraph of this Section 4.4) shall exceed the sum of (1) 50% of the aggregate amount of Adjusted Consolidated Net Income (or, if Adjusted Consolidated Net Income is a loss, minus 100% of such amount) of Holdings (determined by excluding income resulting from the transfers of assets received by Holdings or a Restricted Subsidiary from an Unrestricted Subsidiary) accrued on a cumulative basis during the period (taken as one accounting period) beginning on the first day of the month immediately following the date hereof and ending on the last day of the last fiscal quarter preceding the Transaction Date plus (2) the aggregate net proceeds received by Holdings from the issuance and sale of capital stock of Holdings (other than Redeemable Stock) to any Person other than a Subsidiary of Holdings, including an issuance or sale permitted by the Indenture for cash or other property upon the conversion of any Indebtedness of Holdings subsequent to the date hereof, or from the issuance of any options, warrants or other rights to acquire capital stock of Holdings (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 Securities) plus (3) an amount equal to the net reduction in Investments in Unrestricted Subsidiaries resulting from payments of interest on Indebtedness, dividends, repayments of loans or advances, or other transfers of assets, in each case to Holdings or any Restricted Subsidiary from Unrestricted Subsidiaries, or from redesignations of Unrestricted Subsidiaries as Restricted Subsidiaries (valued in each case as provided in the definition of "Investments"), not to exceed in the case of any Unrestricted Subsidiary the amount of Investments previously made by Holdings or any Restricted Subsidiary in such Unrestricted Subsidiary plus (4) $25 million. The foregoing provision shall not be violated by reason of:

Limitation on Restricted Payments. The Company will (a) Holding shall --------------------------------- not, and will shall not permit any Subsidiary of its Restricted Subsidiaries Holding to, directly or indirectly: , (i) declare or pay any dividend or make any other payment or distribution on account of or in respect of, or make any distribution to the Company’s or any of its Restricted Subsidiaries’ holders of, Equity Interests of Holding (including, without limitation, any payment in connection with any merger or consolidation involving the Company or its Restricted Subsidiaries) or to the direct or indirect holders of the Company’s or any of its Restricted Subsidiaries’ Equity Interests in their capacity as such (other than except dividends or distributions payable solely in its Non-Convertible Equity Interests (or in options, warrants or other than Disqualified Stock) of the Company or dividends, payments rights to acquire its Non-Convertible Equity Interests and except dividends or distributions payable to the Company or a Guarantor, or payable by a Restricted Subsidiary that is not a Wholly Owned Guarantor to any Restricted Subsidiary); , (ii) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company Holding, (iii) declare or its Restricted Subsidiaries pay any dividend or make any distribution on or in respect of, or make any distribution to holders of, Equity Interests of any Subsidiary of Holding (other than with respect to any such Equity Interests owned held by the Company Holding, AK Steel, any Wholly Owned Guarantor Subsidiary or any Guarantor); (iiiWholly Owned Non-Recourse Subsidiary) make any payment on or with respect to, or purchase, redeem or otherwise acquire or retire for value any Equity Interests of any Subsidiary of Holding (other than such Equity Interests held by Holding, AK Steel, any Wholly Owned Guarantor Subsidiary or any Wholly Owned Non-Recourse Subsidiary), (iv) purchase, repurchase, redeem, defease or otherwise acquire or retire for value value, prior to scheduled maturity, scheduled repayment or scheduled sinking fund payment, any Indebtedness Subordinated Obligations (other than the purchase, repurchase or other acquisition of Subordinated Obligations purchased in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case due within one year of the Company or any date of its Restricted Subsidiaries that is contractually subordinated to the Notes or any Note Guarantee (excluding any intercompany Indebtedness between or among the Company and any of the Guarantorsacquisition), except a payment of interest or principal at the Stated Maturity thereof (for purposes of clarity, the Existing Notes will not be deemed to be contractually subordinated to the Notes); or (ivv) make any Restricted Investment other than Permitted Investments (all any such payments and dividend, distribution, purchase, redemption, repurchase, defeasance, other actions set forth in clauses (i) through (iv) above acquisition, retirement or Investment being collectively herein referred to as “Restricted Payments”), unless, at the time of and after giving effect to such a "Restricted Payment:") if: ------------------

Limitation on Restricted Payments. The Company will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly: indirectly (ia) declare or pay any dividend or make any other payment or distribution on account of the Company’s or any of with respect to its Restricted Subsidiaries’ Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company or its Restricted Subsidiaries) or to the direct or indirect holders of the Company’s or any of its Restricted Subsidiaries’ Equity Interests in their capacity as such (Capital Stock other than (i) dividends or distributions payable solely in Equity Interests shares of its Capital Stock (other than Disqualified Stock) or in options, warrants or other rights to acquire shares of the Company or dividendssuch Capital Stock, payments (ii) dividends or distributions payable to the Company or a Guarantor, or payable by a Restricted Subsidiary that is not a Guarantor to any Restricted Subsidiary); (ii) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or its Restricted Subsidiaries (other than any such Equity Interests owned by the Company or any Guarantor); and (iii) make any payment pro rata dividends or distributions on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness 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 that is contractually subordinated to the Notes Subsidiaries; (b) purchase, call for redemption or redeem, retire or otherwise acquire for value any Note Guarantee shares of Capital Stock of (excluding any intercompany Indebtedness between or among i) the Company and (including options, warrants or other rights to acquire such shares of Capital Stock) held by any Person or (ii) a Restricted Subsidiary (including options, warrants or other rights to acquire such shares of Capital Stock) held by any of the Guarantors)Company's Affiliates (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; (c) make any voluntary or optional principal payment, except a 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 of interest or principal at to the Securities prior to the Stated Maturity thereof (for purposes of clarity, the Existing Notes will not be deemed to be contractually subordinated to the Notes)such Indebtedness; or (ivd) make any Restricted Investment Investment, other than a Permitted Investment, in any Person (all such payments and or any other actions set forth described in clauses subclauses (ia) through (ivd) above being collectively referred to as “"Restricted Payments”), unless") if, at the time of of, and after giving effect to such to, the proposed Restricted Payment:: (i) a Default or Event of Default shall have occurred and be continuing, (ii) the Company could not Incur at least $1.00 of Indebtedness under the first paragraph of clause (a) of Section 1008 or (iii) the aggregate amount of all Restricted Payments made after the Closing Date shall exceed the sum of (A) 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, plus (B) the aggregate Net Cash Proceeds received by the Company after the Closing Date as a capital contribution or from the issuance and sale permitted by this Indenture of the Company's 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 the Company's Capital Stock (other than Disqualified Stock), 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 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 be redeemed, prior to the Stated Maturity of the Securities), plus (C) 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. 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 such 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; (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 Section 8.01 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 this 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 this 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

Limitation on Restricted Payments. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly: (i) declare , take any of the following actions:(i)declare, pay or pay set apart any funds for the payment of any dividend on, or make any other payment or distribution on account to holders of, any Capital Stock of the Company’s or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company or its Restricted Subsidiaries) or to the direct or indirect holders of the Company’s or any of its Restricted Subsidiaries’ Equity Interests in their capacity as such (other than dividends or distributions to the extent payable in Equity Interests (Qualified Capital Stock or in options, warrants or other than Disqualified Stock) rights to acquire such shares of Qualified Capital Stock of the Company or dividends, payments or distributions payable to the Company or a Guarantor, or payable by a Restricted Subsidiary that is not a Guarantor to any Restricted SubsidiaryCompany); (ii) purchaseii)repurchase, redeem or otherwise acquire or retire for value (includingvalue, without limitationdirectly or indirectly, in connection with any merger or consolidation involving the Company) any Equity Interests Capital Stock of the Company or its any Restricted Subsidiaries Subsidiary of the Company (other than shares of Capital Stock of any Wholly Owned Restricted Subsidiary) or any options, warrants or other rights to acquire such Equity Interests shares of Capital Stock;(iii) declare, pay or set apart any funds for the payment of any dividend on, or make any distribution on any shares of Capital Stock of any Restricted Subsidiary to any Person (other than with respect to any shares of Capital Stock held by the Company or any Wholly Owned Restricted Subsidiary and other than pro rata dividends or distributions on a class of Capital Stock of any Restricted Subsidiary the majority of which is owned by the Company or any Guarantor)a Wholly Owned Restricted Subsidiary; provided that no Restricted Subsidiary shall declare or pay such pro rata dividend or distribution on its Capital Stock (iiiother than to the Company or a Wholly Owned Restricted Subsidiary) at a time when it has outstanding Debt owed to the Company or a Wholly Owned Restricted Subsidiary);(iv) make any principal payment on or with respect toon, or purchaserepurchase, redeem, defease or otherwise acquire or retire for value value, prior to any Indebtedness of the Company scheduled principal payment, sinking fund payment or maturity, any of its Restricted Subsidiaries that is contractually subordinated to the Notes or any Note Guarantee (excluding any intercompany Indebtedness between or among the Company and any of the Guarantors), except a payment of interest or principal at the Stated Maturity thereof (for purposes of clarity, the Existing Notes will not be deemed to be contractually subordinated to the Notes)Subordinated Indebtedness; or (ivor(v) make any Restricted Investment (all such payments and in any Person, including an Unrestricted Subsidiary, other than a Permitted Investment;(each of the foregoing actions set forth described in clauses (i) through (ivv) above being collectively above, other than any such action that is a Permitted Payment (as defined below), is referred to herein as “a "Restricted Payments”Payment"), unless, at the time of and unless immediately after giving effect to the proposed Restricted Payment (the amount of any such Restricted Payment:, if other than cash, as determined in good faith by the Board of Directors of the Company, whose determination shall be conclusive and evidenced by a Board Resolution), (1) no Default or Event of Default shall have occurred and be continuing, (2) the Company could incur at least $1.00 of additional Debt (other than Permitted Indebtedness) pursuant to Section 5.02 hereof; and (3) the aggregate amount of all such Restricted Payments by the Company and its Restricted Subsidiaries declared or made after the Issue Date does not exceed the sum of:(A) (i) so long as the Company maintains its status as a REIT under the Internal Revenue Code of 1986, as amended (the "Code"), 100 percent of the "real estate investment trust taxable income" of the Company as determined under Section 857(b)(2) of the Code or any successor provision computed prior to taking into account any deductions allowed pursuant to Section 857(b)(2) of

Limitation on Restricted Payments. (a) The Company will shall --------------------------------- not, and will shall not permit any of its Restricted Subsidiaries toSubsidiary, 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 in respect of its Restricted Subsidiaries’ Equity Interests Capital Stock (including, without limitation, including any payment in connection with any merger or consolidation involving the Company or its Restricted Subsidiaries) or to the direct or indirect holders any Subsidiary of the Company’s or any ) to the holders of its Restricted Subsidiaries’ Equity Interests Capital Stock in their capacity as such such, except (other than x) dividends or distributions payable solely in Equity Interests its Capital Stock (other than Disqualified Stock or, in the case of a Subsidiary, Preferred Stock) of the Company or dividends, payments and (y) dividends or distributions payable to the Company or a Guarantor, or payable by a Restricted Subsidiary that is not (and, if such Restricted Subsidiary has shareholders or equity owners other than the Company or other Restricted Subsidiaries, to its other shareholders or equity owners on a Guarantor to any Restricted Subsidiarypro rata basis); , (ii) purchase, redeem repurchase, redeem, retire or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests Capital Stock of the Company or its any Restricted Subsidiaries (Subsidiary held by Persons other than any such Equity Interests owned by the Company or any Guarantor); a Restricted Subsidiary, (iii) make any payment on or with respect to, or purchase, repurchase, redeem, retire, defease or otherwise acquire for value, prior to scheduled maturity, scheduled repayment or retire scheduled sinking fund payment any Subordinated Obligations (other than the purchase, repurchase, redemption, retirement, defeasance or other acquisition for value any Indebtedness of Subordinated Obligations acquired in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case due within one year of the Company or any date of its Restricted Subsidiaries that is contractually subordinated to the Notes or any Note Guarantee (excluding any intercompany Indebtedness between or among the Company and any of the Guarantors), except a payment of interest or principal at the Stated Maturity thereof (for purposes of clarity, the Existing Notes will not be deemed to be contractually subordinated to the Notes); acquisition) or (iv) make any Restricted Investment (all other than a Permitted Investment) in any Person, (any such payments and dividend, distribution, payment, purchase, redemption, repurchase, defeasance, other actions set forth acquisition, retirement or Investment (other than the exceptions thereto listed in clauses (iSection 4.04(b)) through (iv) above being collectively herein referred to as “a "Restricted Payments”), unless, Payment") if at the time of and after giving effect to the Company or such Restricted Subsidiary makes such Restricted Payment:

Limitation on Restricted Payments. The Company will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly: , (i) declare or pay any dividend or make any other payment or distribution on account of the Company’s or any of with respect to its Restricted Subsidiaries’ Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company or its Restricted Subsidiaries) or to the direct or indirect holders of the Company’s or any of its Restricted Subsidiaries’ Equity Interests in their capacity as such Capital Stock (other than (x) dividends or distributions payable solely in Equity Interests shares of its Capital Stock (other than Disqualified Stock) or in options, warrants or other rights to acquire shares of the Company or dividends, payments such Capital Stock and (y) PRO RATA dividends or distributions payable to the Company or a Guarantor, or payable by a Restricted Subsidiary that is not a Guarantor to any Restricted Subsidiary); (ii) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests on Common Stock of the Company or its Restricted Subsidiaries (held by minority stockholders) held by Persons other than any such Equity Interests owned by the Company or any Guarantor); (iii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness of the Company or any of its Restricted Subsidiaries Subsidiaries, (ii) purchase, redeem, retire or otherwise acquire for value any shares of Capital Stock of (A) the Company or an Unrestricted Subsidiary (including options, warrants or other rights to acquire such shares of Capital Stock) held by 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 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 contractually subordinated in right of payment to the Notes or any Note Guarantee (excluding any intercompany Indebtedness between or among the Company and any of the Guarantors), except a payment of interest or principal at the Stated Maturity thereof (for purposes of clarity, the Existing Notes will not be deemed to be contractually subordinated to the Notes); or (iv) make any Restricted Investment Investment, other than a Permitted Investment, in any Person (all such payments and or any other actions set forth described in clauses (i) through (iv) above being collectively referred to as “"Restricted Payments”), unless") if, at the time of of, and after giving effect to such to, the proposed Restricted Payment: (A) a Default or Event of Default shall have occurred and be continuing, (B) the Company could not Incur at least $1.00 of Indebtedness under the first paragraph 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 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 PLUS (2) the aggregate Net Cash Proceeds received by the Company after the Closing Date 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 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 Net Cash Proceeds are used to Incur Indebtedness pursuant to clause (viii) of the second paragraph 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 shall not, and will shall not permit any of its Restricted Subsidiaries to, directly or indirectly: (i) declare or pay any dividend or make any other payment or distribution on account of the Company’s 's or any of its Restricted Subsidiaries’ ' Equity Interests (includingInterests, without limitation, including any payment made in connection with any merger or consolidation involving the Company or its Restricted Subsidiaries) or to the direct or indirect holders of the Company’s or any of its Restricted Subsidiaries’ Equity Interests in their capacity as such (other than (A) dividends or distributions by the Company payable in Equity Interests (other than Disqualified Stock) of the Company or dividends, payments (B) dividends or distributions by a Restricted Subsidiary so long as, in the case of any dividend or distribution payable to on or in respect of any class or series of securities issued by a Restricted Subsidiary other than a Wholly Owned Restricted Subsidiary, the Company or a Guarantor, or payable by a Restricted Subsidiary that is not a Guarantor to any Restricted Subsidiaryreceives at least its pro rata share of such dividend or distribution in accordance with its Equity Interests in such class or series of securities); (ii) purchase, redeem purchase or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or its any Restricted Subsidiaries Subsidiary (other than any the purchase or other acquisition for value of such Equity Interests owned held by the Company or any Guarantoranother Restricted Subsidiary (and, if such Restricted Subsidiary has stockholders other than the Company or other Restricted Subsidiaries, Equity Interests held by such other stockholders on a pro rata basis)); (iii) make any principal payment on or with respect toon, or purchaseredeem, redeemrepurchase, defease or otherwise acquire or retire for value value, in each case prior to any scheduled repayment or scheduled maturity, any Subordinated Indebtedness (other than the payment, redemption, repurchase, defeasance, acquisition or retirement of Subordinated Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case due within one year of the Company date of such payment, redemption, repurchase, defeasance, acquisition or any of its Restricted Subsidiaries that is contractually subordinated to the Notes or any Note Guarantee (excluding any intercompany Indebtedness between or among the Company and any of the Guarantors), except a payment of interest or principal at the Stated Maturity thereof (for purposes of clarity, the Existing Notes will not be deemed to be contractually subordinated to the Notesretirement); or (iv) make any Restricted Investment (all such payments and other actions set forth in clauses (i) through (iv) above being collectively referred to as “"Restricted Payments”"), unless, at the time of and after giving effect to such Restricted Payment:

Limitation on Restricted Payments. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries toSubsidiary, 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 in respect of its Restricted Subsidiaries’ Equity Interests Capital Stock (including, without limitation, including any such payment in connection with any merger or consolidation involving to which the Company or its Restricted Subsidiariesis a party) or to the direct or indirect holders of the Company’s or any of its Restricted Subsidiaries’ Equity Interests in their capacity as such except (other than x) dividends or distributions payable solely in Equity Interests its Capital Stock (other than Disqualified Stock) of the Company or dividends, payments and (y) dividends or distributions payable to the Company or a Guarantor, or payable by a any Restricted Subsidiary that is not (and, in the case of any such Restricted Subsidiary making such dividend or distribution, to other holders of its Capital Stock on no more than a Guarantor to any Restricted Subsidiarypro rata basis, measured by value); , (ii) purchase, redeem redeem, retire or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests Capital Stock of the Company held by Persons other than the Company or its a Restricted Subsidiaries Subsidiary (other than any acquisition of Capital Stock deemed to occur upon the exercise of options if such Equity Interests owned by Capital Stock represents a portion of the Company or any Guarantorexercise price thereof); , (iii) make any payment on or with respect tovoluntarily purchase, or purchaserepurchase, redeem, defease or otherwise voluntarily acquire or retire for value, prior to scheduled maturity, scheduled repayment or scheduled sinking fund payment, any Subordinated Obligations (other than a purchase, repurchase, redemption, defeasance or other acquisition or retirement for value any Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case due within one year of the Company date of such purchase, repurchase, redemption, defeasance or any of its Restricted Subsidiaries that is contractually subordinated to the Notes other acquisition or any Note Guarantee (excluding any intercompany Indebtedness between or among the Company and any of the Guarantors), except a payment of interest or principal at the Stated Maturity thereof (for purposes of clarity, the Existing Notes will not be deemed to be contractually subordinated to the Notes); retirement) or (iv) make any Restricted Investment (other than a Permitted Investment) in any Person (any such dividend, distribution, purchase, repurchase, redemption, defeasance, other acquisition or retirement or Investment being herein referred to as a “Restricted Payment”), if at the time the Company or such Restricted Subsidiary makes such Restricted Payment after giving effect thereto: (1) [reserved]; (2) [reserved]; or (3) the aggregate amount of such Restricted Payment and all other Restricted Payments (the amount so expended, if other than in cash, to be as determined in good faith by the Board of Directors, whose determination shall be conclusive and evidenced by a resolution of the Board of Directors) declared or made subsequent to the Issue Date and then outstanding would exceed, without duplication, the sum of: (A) (x) an amount equal to the amount available as of the Issue Date for making Restricted Payments pursuant to Section 409(a)(3) of the Existing 2029 Notes Indenture plus (y) 50.0% of the Consolidated Net Income accrued during the period (treated as one accounting period) beginning on the first day of the Fiscal Quarter of the Company in which the Issue Date occursoccurred to the 110 1010271152v11010271152_5.doc end of the most recent Fiscal Quarter ending prior to the date of such payments Restricted Payment for which consolidated financial statements of the Company (or, any Parent whose financial statements satisfy the Company’s reporting obligations under Section 405) are available (or, in case such Consolidated Net Income shall be a negative number, 100.0% of such negative number); (B) the aggregate Net Cash Proceeds and the fair value (as determined in good faith by the Company, which determination shall be conclusive) of property or assets received (x) by the Company as capital contributions to the Company after the Issue Date or from the issuance or sale (other actions set forth than to a Restricted Subsidiary) of its Capital Stock (other than Disqualified Stock) after the Issue Date (other than Excluded Contributions and Contribution Amounts) or (y) by the Company or any Restricted Subsidiary from the Incurrence by the Company or any Restricted Subsidiary after the Issue Date of Indebtedness that shall have been converted into or exchanged for Capital Stock of the Company (other than Disqualified Stock) or Capital Stock of any Parent or IPO Vehicle, plus the amount of any cash and the fair value (as determined in clauses good faith by the Company, which determination shall be conclusive) of any property or assets, received by the Company or any Restricted Subsidiary upon such conversion or exchange; (C) (i) through the aggregate amount of cash and the fair value (ivas determined in good faith by the Company, which determination shall be conclusive) above being collectively referred of any property or assets received after the Issue Date from dividends, distributions, interest payments, return of capital, repayments of Investments or other transfers of assets to the Company or any Restricted Subsidiary from any Unrestricted Subsidiary after the Issue Date, including dividends or other distributions related to dividends or other distributions made pursuant to Section 409(b)(x), plus (ii) the aggregate amount resulting from the redesignation after the Issue Date of any Unrestricted Subsidiary as a Restricted Subsidiary (valued in each case as provided in the definition of “Investment”); and (D) in the case of any disposition or repayment of any Investment constituting a Restricted Payment after the Issue Date (without duplication of any amount deducted in calculating the amount of Investments at any time outstanding included in the amount of Restricted Payments”), unlessthe aggregate amount of cash and the fair value (as determined in good faith by the Company, at which determination shall be conclusive) of any property or assets received by the time Company or a Restricted Subsidiary after the Issue Date with respect to all such dispositions and repayments.; and (E) the greater of $452.0 million and after giving effect to such Restricted Payment:50.0% of Four Quarter Consolidated EBITDA. 111 1010271152v11010271152_5.doc

Limitation on Restricted Payments. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly: (i) declare or pay any dividend or make any other payment or distribution on account of the Company’s or any in respect of its Restricted Subsidiaries’ Equity Interests Capital Stock (including, without limitation, including any payment in connection with any merger or consolidation involving the Company or its Restricted SubsidiariesCompany) or to the direct or indirect holders of the Company’s or any of its Restricted Subsidiaries’ Equity Interests Capital Stock in their capacity capacities as such (other than except dividends or distributions payable solely in Equity Interests Capital Stock (other than Disqualified Stock) of the Company or dividendsin options, payments warrants or other rights to purchase its Capital Stock (other than Disqualified Stock and except dividends or distributions payable to the Company or a GuarantorRestricted Subsidiary and, or payable by if a Restricted Subsidiary that is not wholly owned, to all stockholders on a Guarantor to any Restricted Subsidiarypro rata basis); (ii) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests Capital Stock of the Company or its Restricted Subsidiaries (other than of any such Equity Interests owned by direct or indirect parent of the Company or any Guarantor)Company; (iii) make any payment on or with respect topurchase, or purchaserepurchase, redeem, defease or otherwise acquire or retire for value value, prior to scheduled maturity, scheduled repayment or scheduled sinking fund payment, any Indebtedness Subordinated Obligations (other than the purchase, repurchase or other acquisition of Subordinated Obligations purchased in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case due within one year of the Company date of acquisition and other than any required or any mandatory payments, purchases or acquisitions triggered by events which would trigger the prepayments of its Restricted Subsidiaries 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 contractually subordinated 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 or being repurchased prior to any Note Guarantee (excluding any intercompany Indebtedness between or among the Company and any of the Guarantors), except a payment of interest or principal at the Stated Maturity thereof (for purposes of clarity, the Existing Notes will not be deemed with respect to be contractually subordinated to the Notessuch Subordinated Obligations); or (iv) make any Investment in any Affiliate of the Company other than a Restricted Subsidiary or a Person which will become a Restricted Subsidiary as a result of any such Investment (all any such payments and dividend, distribution, purchase, redemption, repurchase, defeasance, other actions set forth in clauses (i) through (iv) above acquisition, retirement or Investment being collectively herein referred to as “a "Restricted Payments”), unless, Payment") if at the time the Company or such Restricted Subsidiary makes such Restricted Payment: (1) a Default shall have occurred and be continuing (or would result therefrom); or (2) the Company would not be permitted to issue an additional $1.00 of and Indebtedness pursuant to clause (a) under Section 4.13 after giving pro forma effect to such Restricted Payment:; or (3) 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: (A) 50% of the 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, 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) subsequent to the 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 any cash, or other property, distributed by the Company upon such conversion or exchange); and (E) an amount equal to the sum of (i) the net reduction in Investments in Unrestricted Subsidiaries resulting from dividends, interest, repayments of loans or advances or Indebtedness or other transfers of assets, in each case to the Company or any Restricted Subsidiary from Unrestricted Subsidiaries, and (ii) the portion (proportionate to the Company's equity interest in such 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 clause (E) shall not exceed, in the 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 Unrestricted Subsidiary.

Limitation on Restricted Payments. (a) The Company will Parent Borrower shall not, and will shall not permit any of its Restricted Subsidiaries toSubsidiary, 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 in respect of its Restricted Subsidiaries’ Equity Interests Capital Stock (including, without limitation, including any such payment in connection with any merger or consolidation involving to which the Company or its Restricted SubsidiariesParent Borrower is a party) or to the direct or indirect holders of the Company’s or any of its Restricted Subsidiaries’ Equity Interests in their capacity as such except (other than x) dividends or distributions payable solely in Equity Interests its Capital Stock (other than Disqualified Stock) of the Company or dividends, payments and (y) dividends or distributions payable to the Company Parent Borrower or a Guarantor, or payable by a any Restricted Subsidiary that is not (and, in the case of any such Restricted Subsidiary making such dividend or distribution, to other holders of its Capital Stock on no more than a Guarantor to any Restricted Subsidiarypro rata basis, measured by value); , (ii) purchase, redeem redeem, retire or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests Capital Stock of the Company Parent Borrower held by Persons other than the Parent Borrower or its a Restricted Subsidiaries Subsidiary (other than any acquisition of Capital Stock deemed to occur upon the exercise of options if such Equity Interests owned by Capital Stock represents a portion of the Company or any Guarantorexercise price thereof); , (iii) make any payment on or with respect tovoluntarily purchase, or purchaserepurchase, redeem, defease or otherwise voluntarily acquire or retire for value, prior to scheduled maturity, scheduled repayment or scheduled sinking fund payment, any Subordinated Obligations (other than Subordinated Obligations owed to a Restricted Subsidiary and other than a purchase, repurchase, redemption, defeasance or other acquisition or retirement for value any Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case due within one year of the Company date of such purchase, repurchase, redemption, defeasance or any of its Restricted Subsidiaries that is contractually subordinated to the Notes other acquisition or any Note Guarantee (excluding any intercompany Indebtedness between or among the Company and any of the Guarantorsretirement), except a payment of interest or principal at the Stated Maturity thereof (for purposes of clarity, the Existing Notes will not be deemed to be contractually subordinated to the Notes); or (iv) make any cash dividend or cash redemption payments to or in respect of the Closing Date Preferred Stock (any such cash dividend or cash redemption payment described in this clause (iv), a “Preferred Stock Restricted Payment”) or (v) make any Investment (all other than a Permitted Investment) in any Person (any such payments and dividend, distribution, purchase, repurchase, redemption, defeasance, other actions set forth in clauses (i) through (iv) above acquisition or retirement or Investment being collectively herein referred to as a “Restricted PaymentsPayment”), unless, at the time of and after giving effect to such Restricted Payment:.

Limitation on Restricted Payments. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries toSubsidiary, 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 with respect to its Restricted Subsidiaries’ Equity Interests Capital Stock (including, without limitation, including any payment in connection with any merger or consolidation involving the Company or to its Restricted Subsidiaries) or to the direct or indirect holders of the Company’s or any of its Restricted Subsidiaries’ Equity Interests in their capacity as such (other than dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company or dividends, payments or distributions payable to the Company or a Guarantor, or payable by a Restricted Subsidiary that is not a Guarantor to any Restricted Subsidiary); (ii) purchase, redeem or otherwise acquire or retire for value (including, without limitation, stockholders in connection with any merger or consolidation involving the Company) except (A) dividends or distributions payable solely in its Capital Stock (other than Disqualified Stock) and (B) dividends or distributions payable to the Company or any Equity Interests Restricted Subsidiary (and, if such Restricted Subsidiary is not a Wholly Owned Subsidiary, to its other shareholders on no more than a pro rata basis, measured by value), (ii) purchase, redeem, retire or otherwise acquire for value any Capital Stock of the Company or its any Restricted Subsidiaries (Subsidiary held by Persons other than any such Equity Interests owned by the Company or any Guarantor); another Restricted Subsidiary, (iii) make any payment on or with respect topurchase, or purchaserepurchase, redeem, defease or otherwise acquire or retire for value value, prior to scheduled maturity, scheduled repayment or scheduled sinking fund payment, any Subordinated Obligations (other than the purchase, repurchase, redemption or other acquisition of Subordinated Obligations in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case due within one year of the date of acquisition) or (iv) make any Investment (other than a Permitted Investment) in any Person (any such dividend, distribution, purchase, redemption, repurchase, defeasance, other acquisition, retirement or Investment being herein referred to as a "Restricted Payment") if at the time the Company or such Restricted Subsidiary makes such Restricted Payment: (A) a Default shall have occurred and be continuing (or would result therefrom); (B) the Company could not incur at least an additional $1.00 of Indebtedness under paragraph (a) of the covenant contained in Section 1010; or (C) the aggregate amount of such Restricted Payment and all other Restricted Payments (the amount 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 of Directors) declared or made subsequent to the date of this Indenture would exceed the sum of: (1) 50% of the 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 date of the Existing Indenture 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, in case such Consolidated Net Income shall be a deficit, minus 100% of such deficit); (2) the aggregate Net Cash Proceeds received by the Company from the issuance or sale of its Capital Stock (other than Disqualified Stock) subsequent to the date of the Existing Indenture (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 Restricted Subsidiaries that is contractually subordinated for the benefit of their employees, to the Notes extent the purchase by such plan or any Note Guarantee (excluding any intercompany trust is financed by Indebtedness between of such plan or among trust and for which the Company is liable as a guarantor or otherwise, such aggregate amount of Net Cash Proceeds shall be limited to the aggregate amount of principal payments made by such plan or trust with respect to such Indebtedness); and any (3) in the case of the Guarantorsdisposition 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), except a payment of interest or principal at the Stated Maturity thereof (for purposes of clarity, the Existing Notes will not be deemed to be contractually subordinated an amount equal to the Notes); lesser of (x) the return of capital or (iv) make any Restricted Investment (all such payments and other actions set forth in clauses (i) through (iv) above being collectively referred to as “Restricted Payments”), unless, at the time of and after giving effect similar repayment with respect to such Restricted Payment:Investment and (y) the initial amount of such Investment, in either case, less the cost of the disposition of such Investment.

Limitation on Restricted Payments. The Company will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly: , (i) declare or pay any dividend or make any other payment or distribution on account of the Company’s or any of with respect to its Restricted Subsidiaries’ Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company or its Restricted Subsidiaries) or to the direct or indirect holders of the Company’s or any of its Restricted Subsidiaries’ Equity Interests in their capacity as such Capital Stock (other than (x) dividends or distributions payable solely in Equity Interests shares of its Capital Stock (other than Disqualified Stock) or in options, warrants or other rights to acquire shares of the Company or dividends, payments such Capital Stock and (y) pro rata dividends or distributions payable to the Company or a Guarantor, or payable by a Restricted Subsidiary that is not a Guarantor to any Restricted Subsidiary); (ii) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests on Common Stock of the Company or its Restricted Subsidiaries (held by minority stockholders) held by Persons other than any such Equity Interests owned by the Company or any Guarantor); (iii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness of the Company or any of its Restricted Subsidiaries Subsidiaries, (ii) purchase, redeem, retire or otherwise acquire for value any shares of Capital Stock of (x) the Company or an Unrestricted Subsidiary (including options, warrants or other rights to acquire such shares of Capital Stock) held by any Person other than the Company or any Wholly Owned Restricted 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 that is contractually subordinated in right of payment to the Notes (other than the purchase, repurchase or the acquisition of Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in any Note Guarantee (excluding any intercompany Indebtedness between or among the Company and any case due within one year of the Guarantors), except a payment date of interest or principal at the Stated Maturity thereof (for purposes of clarity, the Existing Notes will not be deemed to be contractually subordinated to the Notes); acquisition) or (iv) make any Restricted Investment Investment, other than a Permitted Investment, in any Person (all such payments and or any other actions set forth described in clauses (i) through (iv) above being collectively referred to as “"Restricted Payments”), unless") if, at the time of of, and after giving effect to such to, the proposed Restricted Payment: (A) a Default or Event of Default shall have occurred and be continuing, (B) except with respect to Investments, the Company could not Incur at least $1.00 of Indebtedness under the first paragraph 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 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 amounts referred to in clause (3) below)) 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 pursuant to Section 4.17 plus (2) (A) the aggregate Net Cash Proceeds received by the Company after the Closing Date 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, 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 the Stated Maturity of the Notes), (B) the aggregate Net Cash Proceeds received after the Closing Date by the Company from the issuance or sale (other than to a Subsidiary of the Company) of debt securities or shares of Disqualified Stock that have been converted into or exchanged for Common Stock of the Company, together with the aggregate cash received by the Company at the time of such conversion or exchange, in each case except to the extent such Net Cash Proceeds are used to Incur Indebtedness pursuant to clause (viii) of the second paragraph of part (a) of Section 4.03 and (C) the amount by which Indebtedness of the Company and its Restricted Subsidiaries is reduced upon the conversion or exchange subsequent to the Closing Date of any Indebtedness which is convertible into or exchangeable for Capital Stock (other than Disqualified Stock) of the Company 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. The Company will not, and will shall not permit any of its Restricted Subsidiaries to, directly or indirectly: , (i) declare or pay any dividend dividend, or make any other payment distribution, of any kind or distribution on account of the Company’s character (whether in cash, property or any securities) in respect of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company or its Restricted Subsidiaries) Capital Stock or to the direct or indirect holders of the Company’s or any of its Restricted Subsidiaries’ Equity Interests thereof in their capacity as such (other than excluding the Spin-Off Payments and any dividends or distributions payable solely in Equity Interests shares of its Capital Stock (other than Disqualified StockRedeemable Interests) of the Company or dividendsin options, payments warrants or distributions payable other rights to the Company or a Guarantoracquire its Capital Stock (other than Redeemable Interests)), or payable by a Restricted Subsidiary that is not a Guarantor to any Restricted Subsidiary); (ii) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or its Restricted Subsidiaries (other than any such Equity Interests owned by the Company or any Guarantor); (iii) make any payment on or with respect tovalue, or permit any Restricted Subsidiary to purchase, redeem, defease redeem or otherwise acquire or retire for value (a) any Indebtedness 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 (other than any such acquisition which results in such Subsidiary, Affiliate or Related Person becoming a Restricted Subsidiary) 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 the redemption or repurchase by any Restricted Subsidiary of any of its Capital Stock, other ownership interests or options, warrants or rights to purchase such Capital Stock or other ownership interests, in each case, owned by the Company or a Wholly Owned Restricted Subsidiaries Subsidiary and any such acquisition that is contractually subordinated results in such Subsidiary, Affiliate or Related Person becoming a Restricted Subsidiary), (iii) permit any Restricted Subsidiary to declare or pay any dividend, or make any distribution, of any kind or character (whether in cash, property or securities) in respect of the Capital Stock of or other ownership interests in such Restricted Subsidiary or to the Notes holders of such Restricted Subsidiary's Capital Stock or any Note Guarantee other ownership interests (excluding any intercompany Indebtedness between dividends or among distributions payable solely in shares of Capital Stock of or other ownership interests in such Restricted Subsidiary (other than Redeemable Interests) or in options, warrants or rights to acquire Capital Stock of or other ownership interests in such Restricted Subsidiary (other than Redeemable Interests)) other than (A) the payment by any Restricted Subsidiary of dividends or other distributions to the Company and any of or a Wholly Owned Restricted Subsidiary, or (B) the Guarantors), except a payment of interest pro rata dividends to holders of both minority and majority interests in the Capital Stock or principal at the Stated Maturity thereof (for purposes other ownership interests of clarityany such Restricted Subsidiary, the Existing Notes will not be deemed to be contractually subordinated to the Notes); or (iv) make make, or permit any Restricted Subsidiary to make, any Investment in any Person that is not a Permitted Investment or (all such payments and v) redeem, defease, repurchase, retire or otherwise acquire or retire for value prior to any scheduled maturity, repayment or sinking fund payment, Debt of the Company (other actions set forth than the Securities) that is Pari Passu with or subordinate in clauses right of payment to the Securities (each of the transactions described in Clauses (i) through (ivv) above being collectively referred to as “a "Restricted Payments”Payment"), unless, at the time of and after giving effect to such Restricted Paymentif:

Limitation on Restricted Payments. The Company will not, --------------------------------- and will not permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly: , (i) declare or pay any dividend or make any other payment or distribution on account of the Company’s or any of with respect to its Restricted Subsidiaries’ Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company or its Restricted Subsidiaries) or to the direct or indirect holders of the Company’s or any of its Restricted Subsidiaries’ Equity Interests in their capacity as such Capital Stock (other than (x) dividends or distributions payable solely in Equity Interests shares of its Capital Stock (other than Disqualified Stock) or in options, warrants or other rights to acquire shares of the Company or dividends, payments such Capital Stock and (y) pro rata dividends or distributions payable to the Company or a Guarantor, or payable by a Restricted Subsidiary that is not a Guarantor to any Restricted Subsidiary); (ii) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests on Common Stock of the Company or its Restricted Subsidiaries (held by minority stockholders) held by Persons other than any such Equity Interests owned by the Company or any Guarantor); (iii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness of the Company or any of its Restricted Subsidiaries Subsidiaries, (ii) purchase, redeem, retire or otherwise acquire for value any shares of Capital Stock of (A) the Company or an Unrestricted Subsidiary (including options, warrants or other rights to acquire such shares of Capital Stock) held by 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 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 contractually subordinated in right of payment to the Notes or any Note Guarantee (excluding any intercompany Indebtedness between or among the Company and any of the Guarantors), except a payment of interest or principal at the Stated Maturity thereof (for purposes of clarity, the Existing Notes will not be deemed to be contractually subordinated to the Notes); or (iv) make any Restricted Investment Investment, other than a Permitted Investment, in any Person (all such payments and or any other actions set forth described in clauses (i) through (iv) above being collectively referred to as “"Restricted Payments”), unless") if, at the time of of, and after giving effect to such to, the proposed Restricted Payment:: (A) a Default or Event of Default shall have occurred and be continuing, (B) the Company could not Incur at least $1.00 of Indebtedness under the first paragraph of Section 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 shall exceed the sum of (1) the aggregate amount of the Consolidated EBITDA (or, if Consolidated EBITDA is negative, minus the amount by which Consolidated EBITDA is less than zero) 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 4.16 plus (2) the aggregate 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 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 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 Net Cash Proceeds are used to Incur Indebtedness pursuant to clause (viii) of the second paragraph of Section 4.03(a), 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 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 such 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, 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

Limitation on Restricted Payments. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, to directly or indirectly: (i) declare or pay any dividend or make any other payment or distribution on account of the Company’s 's or any of its Restricted Subsidiaries’ ' Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company or its Restricted SubsidiariesCompany) or to the direct or indirect holders of the Company’s or any of its Restricted Subsidiaries’ Equity Interests in their capacity as such (other than dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company or dividends, payments dividends or distributions payable to the Company or a Guarantorany Subsidiary of the Company (and, or payable by a Restricted if such Subsidiary that is not a Guarantor Wholly Owned Subsidiary, to any Restricted Subsidiaryits other shareholders on a pro rata basis); ), (ii) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or its Restricted Subsidiaries any Subsidiary of the Company (other than any such Equity Interests owned by the Company or any Wholly Owned Subsidiary of the Company that is a Subsidiary Guarantor); , (iii) make any principal payment on or with respect toon, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness of the Company or any of its Restricted Subsidiaries that is contractually subordinated to the Notes or any Note Guarantee (excluding any intercompany Indebtedness between or among the Company and any of the Guarantors), except a payment of interest or principal at the Stated Maturity thereof (for purposes of clarity, the Existing Notes will not be deemed to be contractually subordinated to the 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 any of the foregoing with respect to such Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case, due within one year of the date of such 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 Restricted Investment (all such payments and other actions set forth in clauses (i) through (iv) above being collectively referred to as “"Restricted Payments”"), unless, at the time of and after giving effect to such Restricted Payment:

Limitation on Restricted Payments. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, directly or indirectly: (i1) declare or pay any dividend or make any other payment or distribution on account of the Company’s 's or any of its Restricted Subsidiaries’ ' Equity Interests (including, without limitation, any payment dividend or distribution in connection with any merger or consolidation involving the Company (other than dividends or distributions by a Restricted Subsidiary so long as, in the 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 Company or a Restricted Subsidiary receives at least its Restricted Subsidiaries) PRO RATA share of such dividend or distribution in accordance with its Equity Interests in such class or series of securities), or to the direct or indirect holders of the Company’s 's or any of its Restricted Subsidiaries’ ' Equity Interests in their capacity as such (other than dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company or dividends, payments or distributions payable to the Company or a Guarantor, or payable by a Restricted Subsidiary that is not a Guarantor to any Restricted SubsidiaryCompany); (ii2) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or its Restricted Subsidiaries (other than any such Equity Interests owned by direct or indirect parent of the Company or any Guarantor)Company; (iii3) make any principal payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness of the Company or any of its Restricted Subsidiaries that is contractually subordinated to the Notes or any Note Guarantee (excluding any intercompany Indebtedness between or among the Company and any of the Guarantors)Subordinated Indebtedness, except a scheduled repayment of principal or a payment of principal at Stated Maturity; (3) make any payment of interest or principal at the Stated Maturity thereof (for purposes of clarity, the Existing Notes will not be deemed on Subordinated Indebtedness issued pursuant to be contractually subordinated to the NotesSection 4.4(k); or (iv5) make any Restricted Investment (all such payments and other actions set forth in clauses (i1) through (iv5) above being collectively referred to as “Restricted Payments”"RESTRICTED PAYMENTS"), unless, at the time of and after giving effect to such Restricted Payment: