Common use of Restricted Payments Clause in Contracts

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 or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company or any of 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 and other than dividends or distributions payable to the Company or a 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 any direct or indirect parent of the Company; (iii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Subordinated Indebtedness, except a payment of interest or principal at the Stated Maturity thereof; or (iv) make any Restricted Investment (all such payments and other actions set forth in these 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: (i) no Default or Event of Default has occurred and is continuing or would occur as a consequence of such Restricted Payment; (ii) the Company would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 5.7 hereof; and (iii) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries since the Issue Date (excluding Restricted Payments permitted by clauses (ii), (iii), (iv), (v), (vi), (vii), (viii) and (xi) of paragraph (b) of this Section 5.5), is less than the sum, without duplication, of: (1) 50% of the Consolidated Net Income of the Company for the period (taken as one accounting period) from the beginning of the fiscal quarter during which the Issue Date occurs to the end of the Company’s most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit); plus (2) 100% of (A)(i) the aggregate net cash proceeds and (ii) the Fair Market Value of (x) marketable securities (other than marketable securities of the Company), (y) Capital Stock of a Person (other than the Company or an Affiliate of the Company) engaged in a Permitted Business and (z) other assets used in any Permitted Business, in the case of clauses (i) and (ii), received by the Company since the Issue Date as a contribution to its common equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified Stock) or from the issue or sale of convertible or exchangeable Disqualified Stock or convertible or exchangeable debt securities of the Company that have been converted into or exchanged for such Equity Interests (other than Equity Interests (or Disqualified Stock or debt securities) sold to a Subsidiary of the Company), (B) the amount by which Indebtedness of the Company or any Restricted Subsidiary is reduced on the Company’s consolidated balance sheet upon the conversion or exchange after the Issue Date of any such Indebtedness into or for Equity Interests (other than Disqualified Stock) of the Company, and (C) the aggregate net cash proceeds, if any, received by the Company or any of its Restricted Subsidiaries upon any conversion or exchange described in clause (1) or (2) above; plus (3) with respect to Restricted Investments made by the Company and its Restricted Subsidiaries after the Issue Date, an amount equal to the sum of (A) the net reduction in such Restricted Investments in any Person resulting from (i) repayments of loans or advances, or other transfers of assets, in each case to the Company or any Restricted Subsidiary, (ii) other repurchases, repayments or redemptions of such Restricted Investments, (iii) the sale of any such Restricted Investment or (iv) the release of any Guarantee (except to the extent any amounts are paid under such Guarantee) plus (B) all amounts representing the return of capital (excluding dividends and distributions) to the Company or any Restricted Subsidiary in respect of such Restricted Investment plus (C) with respect to any Unrestricted Subsidiary that the Board of Directors of the Company redesignates as a Restricted Subsidiary, the Fair Market Value of the Investment in such Subsidiary held by the Company or any of its Restricted Subsidiaries at the time of such redesignation. (b) The provisions of Section 5.5(a) hereof will not prohibit: (i) the payment of any dividend or the consummation of any irrevocable redemption within 60 days after the date of declaration of the dividend or giving of the redemption notice, as the case may be, if at the date of declaration or notice, the dividend or redemption payment would have complied with the provisions of this Agreement and the Notes; (ii) the making of any Restricted Payment in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Subsidiary of the Company) of, Equity Interests of the Company (other than Disqualified Stock) or from the substantially concurrent contribution (other than by a Subsidiary of the Company) of capital to the Company in respect of its Equity Interests (other than Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such Restricted Payment will be excluded from clause (iii)(2) of Section 5.5(a) hereof; (iii) the repurchase, redemption, defeasance or other acquisition or retirement for value of Subordinated Indebtedness (including the payment of any required premium and any fees and expenses incurred in connection with such repurchase, redemption, defeasance or other acquisition) with the net cash proceeds from a substantially concurrent incurrence of Permitted Refinancing Indebtedness; provided that the amount of any such net cash proceeds that are utilized for any such Restricted Payment will be excluded from clause (iii)(2) of Section 5.5(a) hereof; (iv) the payment of any dividend (or, in the case of any partnership or limited liability company, any similar distribution) by a Restricted Subsidiary of the Company to the holders of the Equity Interests (other than Disqualified Stock) of such Restricted Subsidiary; provided that such dividend or similar distribution is paid to all holders of such Equity Interests on a pro rata basis based on their respective holdings of such Equity Interests; (v) the payment of any dividend on the EB-5 Preferred Stock; (vi) the repurchase, redemption or other acquisition or retirement of Equity Interests deemed to occur upon the exercise or exchange of stock options, warrants or other similar rights to the extent such Equity Interests represent a portion of the exercise or exchange price of those stock options, and the repurchase, redemption or other acquisition or retirement of Equity Interests made in lieu of withholding taxes resulting from the exercise or exchange of stock options, warrants or other similar rights; (vii) so long as no Default has occurred and is continuing or would be caused thereby, the declaration and payment of regularly scheduled or accrued dividends to holders of any class or series of Disqualified Stock of the Company or any Restricted Subsidiary of the Company or any class or series of preferred stock of a Restricted Subsidiary of the Company, in each case issued on or after the Issue Date in accordance with the Fixed Charge Coverage Ratio test described in Section 5.7 hereof; (viii) payments to fund the purchase by the Company of fractional shares arising out of stock dividends, splits or combination or business combinations; (ix) the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company held by any of the Company’s (or any of its Restricted Subsidiaries’) current or former directors or employees; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may not exceed the Fair Market Value thereof and furthermore may not exceed, in any twelve-month period since the Issue Date, $0.5 million (with unused amounts (with respect to the $0.5 million limit referred to above) in any 12-month period after such date being permitted to be carried over into succeeding 12-month periods); provided, further, that the amounts in any such 12-month period may be increased by an amount not to exceed (1) the cash proceeds received by the Company or any of its Restricted Subsidiaries from the sale of the Company’s Equity Interests (other than Disqualified Stock) to any such directors or employees that occurs after the Issue Date (provided that the amount of such cash proceeds utilized for any such repurchase, retirement or other acquisition or retirement will not increase the amount available for Restricted Payments under clause (iii) of the immediately preceding paragraph and to the extent such proceeds have not otherwise been applied to the payment of Restricted Payments) plus (2) the cash proceeds of key man life insurance policies received by the Company and its Restricted Subsidiaries after the Issue Date; (x) the purchase or redemption of any Acquired Subordinated Indebtedness of the Company or any of its Restricted Subsidiaries, by application of (i) cash provided from operations in the ordinary course of business or (ii) proceeds from borrowings under the revolving portion of any Credit Facility (so long as within 30 days prior to such purchase or redemption, a corresponding amount of borrowings under the revolving portion of such Credit Facility was repaid from cash provided from operations in the ordinary course of business); provided, in any such case, that the Company is able to incur an additional $1.00 of Indebtedness pursuant to Section 5.5(a) hereof after giving effect to such purchase or redemption; provided, further, that this clause (x) shall not permit the application of any proceeds from any other borrowings under any Credit Facility to effect any such purchase or redemption; and (xi) so long as no Default has occurred and is continuing or would be caused thereby, other Restricted Payments in an aggregate amount not to exceed $5.0 million since the Issue Date. The amount of all Restricted Payments (other than cash) shall be the Fair Market Value on the date of such Restricted Payment of the asset(s) or securities proposed to be paid, transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to such Restricted Payment. The Fair Market Value of any cash Restricted Payment shall be its face amount, and the Fair Market Value of any non-cash Restricted Payment exceeding $5.0 million shall be determined conclusively by two senior officers of the Company acting in good faith whose conclusions with respect thereto shall be set forth in an Officers’ Certificate delivered to the Holders; provided, however, that if the Fair Market Value of any non-cash Restricted Payment exceeds $10.0 million, such Fair Market Value shall be determined conclusively by the Board of Directors of the Company and set forth in a board resolution, and a certified copy of such board resolution shall be delivered to the Holders. For purposes of determining compliance with this Section 5.5, in the event that a Restricted Payment meets the criteria of more than one of the exceptions described in (i) through (xi) above or is entitled to be made pursuant to Section 5.5(a) hereof, the Company shall, in its sole discretion, classify such Restricted Payment, or later classify, reclassify or re-divide all or a portion of such Restricted Payment, in any manner that complies with this Section 5.5.

Restricted Payments. (a) The Company will not, and will not permit any of its Restricted Subsidiaries toDeclare or make, directly or indirectly, any Restricted Payment, except that: (a) each Restricted Subsidiary of a Loan Party may make Restricted Payments to any Loan Party; (b) each Restricted Subsidiary of a Loan Party which is not a Loan Party may make Restricted Payments to another Restricted Subsidiary that is not a Loan Party; (c) Loan Parties and their Restricted Subsidiaries may make Restricted Payments permitted by Sections 7.02 or 7.04; (d) the ▇▇▇▇▇ Group may, and may make a Restricted Payment to, repurchase Equity Interests of the Parent or ▇▇▇▇▇ Investor held by a current or former employee, officer or director of any of the ▇▇▇▇▇ Group upon the termination, retirement or death of any such employee, officer or director, provided that, as to any such repurchase, each of the following conditions is satisfied: (i) declare or pay any dividend or make any other payment or distribution on account as of the Company’s date of the payment for such repurchase and after giving effect thereto, no Dominion Trigger Event shall exist or have occurred and be continuing, (ii) such repurchase shall be paid with funds legally available therefor, and (iii) the aggregate amount of all payments for such repurchases in any Fiscal Year shall not exceed $15,000,000 plus amounts of such repurchases permitted to have been made in prior Fiscal Years but not made, up to a maximum carry forward amount in any Fiscal Year of $10,000,000; plus the Net Proceeds received by the Parent or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving Subsidiaries from the Company or any sale of 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 and other than dividends or distributions payable to the Company or a 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 Parent or any direct or indirect parent of the Company; Parent (iiito the extent contributed to the Parent) make to members of management, directors or consultants of the Parent or any payment on or with respect toof its Subsidiaries, or purchaseany direct or indirect parent of the Parent that occurs after the Second Restatement Effective Date other than proceeds of a Cure Amount; plus the Net Proceeds of key man life insurance policies received by the Parent or any other direct or indirect parent of the Parent (in each case, redeem, defease or otherwise acquire or retire for value any Subordinated Indebtedness, except a payment to the extent contributed to the Parent) and their Subsidiaries after the Second Restatement Effective Date; less the amount of interest or principal at the Stated Maturity thereof; or (iv) make any Restricted Investment (all such payments and other actions set forth in these 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: (i) no Default or Event of Default has occurred and is continuing or would occur as a consequence of such Restricted Payment; (ii) the Company would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been Payments previously made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 5.7 hereof; and (iii) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries since the Issue Date (excluding Restricted Payments permitted by clauses (ii), (iii), (iv), (v), (vi), (vii), (viii) and (xi) of paragraph (b) of this Section 5.5), is less than the sum, without duplication, of: (1) 50% of the Consolidated Net Income of the Company for the period (taken as one accounting period) from the beginning of the fiscal quarter during which the Issue Date occurs to the end of the Company’s most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit); plus (2) 100% of (A)(i) the aggregate net cash proceeds and (ii) the Fair Market Value of (x) marketable securities (other than marketable securities of the Company), (y) Capital Stock of a Person (other than the Company or an Affiliate of the Company) engaged described in a Permitted Business and (z) other assets used in any Permitted Business, in the case of clauses (i) and (ii) of this Section 7.06(d); (provided that cancellation of Indebtedness owing to the Parent or any Restricted Subsidiary from members of management, received by directors, employees or consultants of the Company since the Issue Date as Parent, or any direct or indirect parent company or Restricted Subsidiaries in connection with a contribution to its common equity capital or from the issue or sale repurchase of Equity Interests pursuant to this clause (d) of the Company Parent or any direct or indirect parent company will not be deemed to constitute a Restricted Payment); (other than Disqualified Stocke) or from if the issue or sale of convertible or exchangeable Disqualified Stock or convertible or exchangeable debt securities Payment Conditions are satisfied, the ▇▇▇▇▇ Group may make Restricted Payments to the equity holders of the Company that have been converted into Parent; (f) the Parent and its Subsidiaries may declare and make dividend payments or exchanged for such other Restricted Payments payable (i) solely in Equity Interests (other than Equity Interests (or Disqualified Stock not otherwise permitted by Section 7.03) of such Person, or debt securities(ii) sold to with the proceeds of a Subsidiary of substantially concurrent contribution to, or the Company)issuance or other sale of, (B) the amount by which Indebtedness of the Company or any Restricted Subsidiary is reduced on the Company’s consolidated balance sheet upon the conversion or exchange after the Issue Date of any such Indebtedness into or for Equity Interests (other than Disqualified Stock) of the Company, and Parent or any direct or indirect parent thereof (Cto the extent contributed to a Borrower); (g) the aggregate net cash proceeds, if any, received by the Company or any of its Restricted Subsidiaries upon any conversion or exchange described in clause (1) or (2) above; plus (3) with respect to Restricted Investments made by the Company Parent and its Restricted Subsidiaries after may make repurchases of Equity Interests in the Issue Date, an amount equal to the sum of (A) the net reduction in such Restricted Investments Parent or in any Person resulting from (i) repayments of loans other direct or advances, or other transfers of assets, in each case to the Company or any Restricted Subsidiary, (ii) other repurchases, repayments or redemptions of such Restricted Investments, (iii) the sale of any such Restricted Investment or (iv) the release of any Guarantee (except to the extent any amounts are paid under such Guarantee) plus (B) all amounts representing the return of capital (excluding dividends and distributions) to the Company indirect parent thereof or any Restricted Subsidiary in respect of such Restricted Investment plus (C) with respect to any Unrestricted Subsidiary that the Board of Directors of the Company redesignates as a Restricted Subsidiary, the Fair Market Value of the Investment in such Subsidiary held by the Company or any of its Restricted Subsidiaries at the time of such redesignation. (b) The provisions of Section 5.5(a) hereof will not prohibit: (i) the payment of any dividend or the consummation of any irrevocable redemption within 60 days after the date of declaration of the dividend or giving of the redemption notice, as the case may be, if at the date of declaration or notice, the dividend or redemption payment would have complied with the provisions of this Agreement and the Notes; (ii) the making of any Restricted Payment in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Subsidiary of the Company) of, Equity Interests of the Company (other than Disqualified Stock) or from the substantially concurrent contribution (other than by a Subsidiary of the Company) of capital to the Company in respect of its Equity Interests (other than Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such Restricted Payment will be excluded from clause (iii)(2) of Section 5.5(a) hereof; (iii) the repurchase, redemption, defeasance or other acquisition or retirement for value of Subordinated Indebtedness (including the payment of any required premium and any fees and expenses incurred in connection with such repurchase, redemption, defeasance or other acquisition) with the net cash proceeds from a substantially concurrent incurrence of Permitted Refinancing Indebtedness; provided that the amount of any such net cash proceeds that are utilized for any such Restricted Payment will be excluded from clause (iii)(2) of Section 5.5(a) hereof; (iv) the payment of any dividend (or, in the case of any partnership or limited liability company, any similar distribution) by a Restricted Subsidiary of the Company to the holders of the Equity Interests (other than Disqualified Stock) of such Restricted Subsidiary; provided that such dividend or similar distribution is paid to all holders of such Equity Interests on a pro rata basis based on their respective holdings of such Equity Interests; (v) the payment of any dividend on the EB-5 Preferred Stock; (vi) the repurchase, redemption or other acquisition or retirement of Equity Interests Parent deemed to occur upon the exercise or exchange of stock options, options or warrants or other similar rights to the extent if such Equity Interests represent a portion of the exercise or exchange price of those stock optionssuch options or warrants; (h) Restricted Payments made with the proceeds of substantially concurrent Excluded Contributions; (i) the distribution, and the repurchaseas a dividend or otherwise, redemption or other acquisition or retirement of shares of Equity Interests made in lieu of withholding taxes resulting from of, or Indebtedness owed to the exercise Parent or exchange of stock options, warrants or other similar rights; (vii) so long as no Default has occurred and is continuing or would be caused thereby, the declaration and payment of regularly scheduled or accrued dividends to holders of any class or series of Disqualified Stock of the Company or any Restricted Subsidiary of the Company or any class or series of preferred stock of a Restricted Subsidiary of the CompanyParent by, in each case issued on Unrestricted Subsidiaries or after the Issue Date in accordance with the Fixed Charge Coverage Ratio test described in Section 5.7 hereofExcluded Property; (viii) payments to fund the purchase by the Company of fractional shares arising out of stock dividends, splits or combination or business combinations; (ixj) the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company held by any of the Company’s (or any of its Restricted Subsidiaries’) current or former directors or employees; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may not exceed the Fair Market Value thereof and furthermore may not exceed, in any twelve-month period since the Issue Date, $0.5 million (with unused amounts (with respect to the $0.5 million limit referred to above) in any 12-month period after such date being permitted to be carried over into succeeding 12-month periods); provided, further, that the amounts in any such 12-month period may be increased by an amount not to exceed (1) the cash proceeds received by the Company or any of its Restricted Subsidiaries from the sale of the Company’s Equity Interests (other than Disqualified Stock) to any such directors or employees that occurs after the Issue Date (provided that the amount of such cash proceeds utilized for any such repurchase, retirement or other acquisition or retirement will not increase the amount available for Restricted Payments under clause (iii) of the immediately preceding paragraph and to the extent such proceeds have not otherwise been applied to the payment of Restricted Payments) plus (2) the cash proceeds of key man life insurance policies received by the Company Parent and its Restricted Subsidiaries after may pay customary and reasonable out of pocket fees, commissions, expenses and other amounts, in each case, to the Issue Dateextent payable by the Parent under the Parent Stockholders’ Agreement as in effect as of January 20, 2017; (xk) Restricted Payments in the purchase or redemption aggregate amount in any four consecutive Fiscal Quarter period not to exceed $50,000,000; provided, that, to the extent Consolidated EBITDA at the end of any Acquired Subordinated Indebtedness of the Company Measurement Period equals or any of its Restricted Subsidiariesexceeds $700,000,000, by application of (i) cash provided from operations in the ordinary course of business or (ii) proceeds from borrowings under the revolving portion of any Credit Facility (such amount shall increase to $100,000,000 for so long as within 30 days prior Consolidated EBITDA continues to such purchase equal or redemption, a corresponding amount of borrowings under exceed $700,000,000 at the revolving portion of such Credit Facility was repaid from cash provided from operations in the ordinary course of business); provided, in any such case, that the Company is able to incur an additional $1.00 of Indebtedness pursuant to Section 5.5(a) hereof after giving effect to such purchase or redemption; provided, further, that this clause (x) shall not permit the application end of any proceeds from any other borrowings under any Credit Facility to effect any such purchase or redemptionsubsequent Measurement Period; and (xil) so long as no Default has occurred and is continuing or would be caused thereby, other Restricted Payments in an aggregate amount not to exceed $5.0 million since the Issue Date. The amount of all Restricted Payments (other than cash) shall be the Fair Market Value on within 60 days after the date of the declaration or agreement in respect thereof, if, at the time of such declaration or agreement, such Restricted Payment of the asset(s) or securities proposed to be paid, transferred or issued by the Company or such Restricted Subsidiary, as the case may be, would have been permissible pursuant to such Restricted Payment. The Fair Market Value any of any cash Restricted Payment shall be its face amount, and the Fair Market Value of any non-cash Restricted Payment exceeding $5.0 million shall be determined conclusively by two senior officers of the Company acting in good faith whose conclusions with respect thereto shall be set forth in an Officers’ Certificate delivered to the Holders; provided, however, that if the Fair Market Value of any non-cash Restricted Payment exceeds $10.0 million, such Fair Market Value shall be determined conclusively by the Board of Directors of the Company and set forth in a board resolution, and a certified copy of such board resolution shall be delivered to the Holders. For purposes of determining compliance with this Section 5.5, in the event that a Restricted Payment meets the criteria of more than one of the exceptions described in clauses (ia) through (xik) above or is entitled to be made pursuant to Section 5.5(a) hereof, the Company shall, in its sole discretion, classify such Restricted Payment, or later classify, reclassify or re-divide all or a portion of such Restricted Payment, in any manner that complies with this Section 5.5above.

Restricted Payments. (a) The Company Loral Space 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 Loral Space's or any of its Restricted Subsidiaries’ ' Equity Interests (including, without limitation, any distribution, dividend or payment in connection with any merger or consolidation involving the Company Loral Space or any of its Restricted Subsidiaries) or to the direct or indirect holders of the Company’s Loral Space'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 and other than dividends Loral Space or distributions payable to the Company Loral Space or a Restricted Subsidiary of the Companyor Loral Space); (ii2) purchase, redeem or otherwise acquire or retire for value (including including, without limitation, in connection with any merger or consolidation involving the CompanyLoral Space) any Equity Interests of the Company Loral Space, any Restricted Subsidiary of Loral Space or any direct or indirect parent of the CompanyLoral Space; (iii3) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness that is junior in right of payment to this Guaranty of the Subordinated IndebtednessNotes, except a the scheduled payment of interest or principal at the Stated Maturity thereof; or (iv4) make any Restricted Investment (all such payments and other actions set forth in these clauses (i1) through (iv4) above being collectively referred to as “"Restricted Payments”"), unless, at the time of and after giving effect to such Restricted Payment: (i1) no Loral Space Default or Event of Default has Loral Space shall have occurred and is be continuing or would occur as a consequence of such Restricted Payment;thereof; and (ii2) the Company Loral Space would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio either test set forth in the proviso to paragraph (a) of Section 5.7 hereof4.05; and (iii3) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company Loral Space and its Restricted Subsidiaries since after the Issue Date (excluding Restricted Payments permitted by clauses (ii2), (iii3), (iv), (v), (vi), (vii), (viii4) and (xi6) of paragraph (b) of this Section 5.5), 4.04) is less than the sum, without duplication, of: (1A) 50% of the Consolidated Net Income of the Company Loral Space for the period (taken as one accounting period) from the beginning of the first fiscal quarter during which commencing after the Issue Date occurs to the end of the Company’s Loral Space's most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit); plus (2B) 100% of (A)(i) the aggregate net cash proceeds and (ii) the Fair Market Value of (x) marketable securities (other than marketable securities of the Company), (y) Capital Stock of a Person (other than the Company or an Affiliate of the Company) engaged in a Permitted Business and (z) other assets used in any Permitted Business, in the case of clauses (i) and (ii), received by the Company Loral Space since the Issue Date as a contribution to its common equity capital or from the issue or sale of Equity Interests of the Company Loral Space (other than Disqualified Stock) or from the issue or sale of convertible or exchangeable Disqualified Stock or convertible or exchangeable debt securities of the Company Loral Space that have been converted into or exchanged for such Equity Interests (other than Equity Interests (or Disqualified Stock or convertible debt securities) sold to a Subsidiary of the CompanyLoral Space), (B) except to the extent such net cash proceeds are used to increase the amount by which Indebtedness of dividends on Preferred Stock of Loral Space or the amount of Restricted Investments that may be made pursuant to clause (7) of paragraph (b) of this Section 4.04; plus (C) 100% of the Company fair market value (as determined by the Board of Directors and evidenced by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the Holders of the Subordinated Notes) of assets used or any Restricted Subsidiary is reduced on the Company’s consolidated balance sheet upon the conversion or exchange after useful in a Permitted Business received by Loral Space since the Issue Date as a contribution to its common equity capital or from the issue or sale of any such Indebtedness into or for Equity Interests of Loral Space (other than Disqualified Stock) of the Company, and (C) the aggregate net cash proceeds, if any, received by the Company or any of its Restricted Subsidiaries upon any conversion or exchange described in clause (1) or (2) above); plus (3D) to the extent not already included in Consolidated Net Income of Loral Space for such period, if any Restricted Investment that was made by Loral Space or any Restricted Subsidiary after the Issue Date is sold for cash or otherwise liquidated or repaid for cash, the lesser of 18 (i) the cash return of capital with respect to such Restricted Investments made Investment (less the cost of disposition, if any) and (ii) the initial amount of such Restricted Investment or designated amount of Unrestricted Subsidiary; plus (E) to the extent that any Unrestricted Subsidiary is designated by the Company and its Loral Space as a Restricted Subsidiaries Subsidiary after the Issue Date, an amount equal to the sum lesser of (Ai) the net reduction in such Restricted Investments in any Person resulting from (i) repayments book value of loans or advances, or other transfers of assets, in each case to the Company or any Restricted Subsidiary, (ii) other repurchases, repayments or redemptions of such Restricted Investments, (iii) the sale of any such Restricted Investment or (iv) the release of any Guarantee (except to the extent any amounts are paid under such Guarantee) plus (B) all amounts representing the return of capital (excluding dividends and distributions) to the Company or any Restricted Subsidiary in respect of such Restricted Investment plus (C) with respect to any Unrestricted Subsidiary that the Board of Directors of the Company redesignates as a Restricted Subsidiary, the Fair Market Value of the Loral Space's Investment in such Unrestricted Subsidiary held by the Company or any of its Restricted Subsidiaries at the time of such redesignation. (b) The provisions of Section 5.5(a) hereof will not prohibit: (i) the payment of any dividend or the consummation of any irrevocable redemption within 60 days after the date of declaration of the dividend or giving of the redemption notice, as the case may be, if at the date of declaration or notice, the dividend or redemption payment would have complied with the provisions of this Agreement designation and the Notes; (ii) the making of any Restricted Payment in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Subsidiary of the Company) of, Equity Interests of the Company (other than Disqualified Stock) or from the substantially concurrent contribution (other than by a Subsidiary of the Company) of capital to the Company in respect of its Equity Interests (other than Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such Restricted Payment will be excluded from clause (iii)(2) of Section 5.5(a) hereof; (iii) the repurchase, redemption, defeasance or other acquisition or retirement for fair market value of Subordinated Indebtedness (including Loral Space's Investment in such Unrestricted Subsidiary at the payment of any required premium and any fees and expenses incurred in connection with such repurchase, redemption, defeasance or other acquisition) with the net cash proceeds from a substantially concurrent incurrence of Permitted Refinancing Indebtedness; provided that the amount of any such net cash proceeds that are utilized for any such Restricted Payment will be excluded from clause (iii)(2) of Section 5.5(a) hereof; (iv) the payment of any dividend (or, in the case of any partnership or limited liability company, any similar distribution) by a Restricted Subsidiary of the Company to the holders of the Equity Interests (other than Disqualified Stock) time of such Restricted Subsidiary; provided that such dividend or similar distribution is paid to all holders of such Equity Interests on a pro rata basis based on their respective holdings of such Equity Interests; (v) the payment of any dividend on the EB-5 Preferred Stock; (vi) the repurchase, redemption or other acquisition or retirement of Equity Interests deemed to occur upon the exercise or exchange of stock options, warrants or other similar rights to the extent such Equity Interests represent a portion of the exercise or exchange price of those stock options, and the repurchase, redemption or other acquisition or retirement of Equity Interests made in lieu of withholding taxes resulting from the exercise or exchange of stock options, warrants or other similar rights; (vii) so long as no Default has occurred and is continuing or would be caused thereby, the declaration and payment of regularly scheduled or accrued dividends to holders of any class or series of Disqualified Stock of the Company or any Restricted Subsidiary of the Company or any class or series of preferred stock of a Restricted Subsidiary of the Company, in each case issued on or after the Issue Date in accordance with the Fixed Charge Coverage Ratio test described in Section 5.7 hereof; (viii) payments to fund the purchase by the Company of fractional shares arising out of stock dividends, splits or combination or business combinations; (ix) the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company held by any of the Company’s (or any of its Restricted Subsidiaries’) current or former directors or employees; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may not exceed the Fair Market Value thereof and furthermore may not exceed, in any twelve-month period since the Issue Date, $0.5 million (with unused amounts (with respect to the $0.5 million limit referred to above) in any 12-month period after such date being permitted to be carried over into succeeding 12-month periods); provided, further, that the amounts in any such 12-month period may be increased by an amount not to exceed (1) the cash proceeds received by the Company or any of its Restricted Subsidiaries from the sale of the Company’s Equity Interests (other than Disqualified Stock) to any such directors or employees that occurs after the Issue Date (provided that the amount of such cash proceeds utilized for any such repurchase, retirement or other acquisition or retirement will not increase the amount available for Restricted Payments under clause (iii) of the immediately preceding paragraph and to the extent such proceeds have not otherwise been applied to the payment of Restricted Payments) plus (2) the cash proceeds of key man life insurance policies received by the Company and its Restricted Subsidiaries after the Issue Date; (x) the purchase or redemption of any Acquired Subordinated Indebtedness of the Company or any of its Restricted Subsidiaries, by application of (i) cash provided from operations in the ordinary course of business or (ii) proceeds from borrowings under the revolving portion of any Credit Facility (so long as within 30 days prior to such purchase or redemption, a corresponding amount of borrowings under the revolving portion of such Credit Facility was repaid from cash provided from operations in the ordinary course of business); provided, in any such case, that the Company is able to incur an additional $1.00 of Indebtedness pursuant to Section 5.5(a) hereof after giving effect to such purchase or redemption; provided, further, that this clause (x) shall not permit the application of any proceeds from any other borrowings under any Credit Facility to effect any such purchase or redemption; and (xi) so long as no Default has occurred and is continuing or would be caused thereby, other Restricted Payments in an aggregate amount not to exceed $5.0 million since the Issue Date. The amount of all Restricted Payments (other than cash) shall be the Fair Market Value on the date of such Restricted Payment of the asset(s) or securities proposed to be paid, transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to such Restricted Payment. The Fair Market Value of any cash Restricted Payment shall be its face amount, and the Fair Market Value of any non-cash Restricted Payment exceeding $5.0 million shall be determined conclusively by two senior officers of the Company acting in good faith whose conclusions with respect thereto shall be set forth in an Officers’ Certificate delivered to the Holders; provided, however, that if the Fair Market Value of any non-cash Restricted Payment exceeds $10.0 million, such Fair Market Value shall be determined conclusively by the Board of Directors of the Company and set forth in a board resolution, and a certified copy of such board resolution shall be delivered to the Holders. For purposes of determining compliance with this Section 5.5, in the event that a Restricted Payment meets the criteria of more than one of the exceptions described in (i) through (xi) above or is entitled to be made pursuant to Section 5.5(a) hereof, the Company shall, in its sole discretion, classify such Restricted Payment, or later classify, reclassify or re-divide all or a portion of such Restricted Payment, in any manner that complies with this Section 5.5designation.

Restricted Payments. (a) The Company will notNone of the Covenant Parties shall, and will not nor shall any Covenant Party permit any of its Restricted Subsidiaries to, directly or indirectly, declare or make, directly or indirectly, any Restricted Payment, except: (ia) declare or pay each Restricted Subsidiary may make Restricted Payments to any dividend or make any other payment or distribution on account of the Company’s or any of its Restricted Subsidiaries’ Equity Interests (includingCovenant Party, without limitation, any payment in connection with any merger or consolidation involving the Company or any of 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 and other than dividends or distributions payable to the Company or a 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 any direct or indirect parent of the Company; (iii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Subordinated Indebtedness, except a payment of interest or principal at the Stated Maturity thereof; or (iv) make any Restricted Investment (all such payments and other actions set forth in these 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: (i) no Default or Event of Default has occurred and is continuing or would occur as a consequence of such Restricted Payment; (ii) the Company would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 5.7 hereof; and (iii) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries since the Issue Date of any Covenant Parties (excluding Restricted Payments permitted by clauses (ii), (iii), (iv), (v), (vi), (vii), (viii) and (xi) of paragraph (b) of this Section 5.5), is less than the sum, without duplication, of: (1) 50% of the Consolidated Net Income of the Company for the period (taken as one accounting period) from the beginning of the fiscal quarter during which the Issue Date occurs to the end of the Company’s most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit); plus (2) 100% of (A)(i) the aggregate net cash proceeds and (ii) the Fair Market Value of (x) marketable securities (other than marketable securities of the Company), (y) Capital Stock of a Person (other than the Company or an Affiliate of the Company) engaged in a Permitted Business and (z) other assets used in any Permitted Businessand, in the case of clauses (i) a Restricted Payment by a non-wholly owned Restricted Subsidiary, to any Covenant Party and (ii), received by the Company since the Issue Date as a contribution any other Restricted Subsidiary and to its common equity capital or from the issue or sale each other owner of Equity Interests of the Company (other than Disqualified Stock) or from the issue or sale of convertible or exchangeable Disqualified Stock or convertible or exchangeable debt securities such Restricted Subsidiary based on their relative ownership interests of the Company that have been converted into or exchanged for such relevant class of Equity Interests (other than Equity Interests (or Disqualified Stock or debt securities) sold to a Subsidiary of the CompanyInterests), (B) the amount by which Indebtedness of the Company or any Restricted Subsidiary is reduced on the Company’s consolidated balance sheet upon the conversion or exchange after the Issue Date of any such Indebtedness into or for Equity Interests (other than Disqualified Stock) of the Company, and (C) the aggregate net cash proceeds, if any, received by the Company or any of its Restricted Subsidiaries upon any conversion or exchange described in clause (1) or (2) above; plus (3) with respect to Restricted Investments made by the Company and its Restricted Subsidiaries after the Issue Date, an amount equal to the sum of (A) the net reduction in such Restricted Investments in any Person resulting from (i) repayments of loans or advances, or other transfers of assets, in each case to the Company or any Restricted Subsidiary, (ii) other repurchases, repayments or redemptions of such Restricted Investments, (iii) the sale of any such Restricted Investment or (iv) the release of any Guarantee (except to the extent any amounts are paid under such Guarantee) plus (B) all amounts representing the return of capital (excluding dividends and distributions) to the Company or any Restricted Subsidiary in respect of such Restricted Investment plus (C) with respect to any Unrestricted Subsidiary that the Board of Directors of the Company redesignates as a Restricted Subsidiary, the Fair Market Value of the Investment in such Subsidiary held by the Company or any of its Restricted Subsidiaries at the time of such redesignation.; (b) The provisions of Section 5.5(a) hereof will not prohibit: (i) the payment of any Covenant Party and each Restricted Subsidiary may declare and make dividend or the consummation of any irrevocable redemption within 60 days after the date of declaration of the dividend or giving of the redemption notice, as the case may be, if at the date of declaration or notice, the dividend or redemption payment would have complied with the provisions of this Agreement and the Notes; (ii) the making of any Restricted Payment in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Subsidiary of the Company) of, Equity Interests of the Company (other than Disqualified Stock) or from the substantially concurrent contribution (other than by a Subsidiary of the Company) of capital to the Company in respect of its Equity Interests (other than Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such Restricted Payment will be excluded from clause (iii)(2) of Section 5.5(a) hereof; (iii) the repurchase, redemption, defeasance payments or other acquisition or retirement for value of Subordinated Indebtedness (including the payment of any required premium and any fees and expenses incurred Restricted Payments payable solely in connection with such repurchase, redemption, defeasance or other acquisition) with the net cash proceeds from a substantially concurrent incurrence of Permitted Refinancing Indebtedness; provided that the amount of any such net cash proceeds that are utilized for any such Restricted Payment will be excluded from clause (iii)(2) of Section 5.5(a) hereof; (iv) the payment of any dividend (or, in the case of any partnership or limited liability company, any similar distribution) by a Restricted Subsidiary of the Company to the holders of the Equity Interests (other than Disqualified StockEquity Interests not otherwise permitted by Section 7.03) of such Restricted Subsidiary; provided that such dividend or similar distribution is paid to all holders of such Equity Interests on a pro rata basis based on their respective holdings of such Equity InterestsPerson; (vc) any Restricted Payments as part of or in connection with the payment Transaction (or the unwinding of any dividend on intercompany transaction put in place prior to the EB-5 Preferred StockClosing Date or as part of or in connection with the Transaction); (vid) so long as no Default shall have occurred and be continuing or would result therefrom, from and after the repurchasedate N▇▇▇▇▇▇ delivers an irrevocable written notice to the Administrative Agent stating that Restricted Payments will be made to fund cash interest payments required to be made by the Company (the “Company Restricted Payments Election”), redemption such Restricted Payments may be made; (e) to the extent constituting Restricted Payments, any Covenant Party and its Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 7.04 or 7.08 other acquisition than Section 7.08(f) or retirement 7.08(l); (f) repurchases of Equity Interests in any Covenant Party or any Restricted Subsidiary of a Covenant Party deemed to occur upon the exercise or exchange of stock options, options or warrants or other similar rights to the extent if such Equity Interests represent a portion of the exercise or exchange price of those stock options, and such options or warrants; (g) each of the Covenant Parties may pay (or make Restricted Payments to allow the Company or any other direct or indirect parent of the Covenant Parties to pay) for the repurchase, redemption retirement or other acquisition or retirement for value of Equity Interests made in lieu of withholding taxes resulting from such Covenant Party (or of the exercise Company or exchange any other such parent of such Covenant Party) by any future, present or former employee or director of such Covenant Party (or the Company or any other direct or indirect parent of such Covenant Party) or any of its Subsidiaries pursuant to any employee or director equity plan, employee or director stock options, warrants option plan or any other similar rightsemployee or director benefit plan or any agreement (including any stock subscription or shareholder agreement) with any employee or director of such Covenant Party (or the Company or any other direct or indirect parent of such Covenant Party) or any of its Restricted Subsidiaries; (viih) the Covenant Parties may make Restricted Payments following the Fourth A&R Effective Date in an aggregate amount equal to (x) $250,000,000, plus, if the Total Leverage Ratio calculated on a Pro Forma Basis is less than or equal to 7.00 to 1.00, (y) the portion, if any, of the Cumulative Credit on such date that N▇▇▇▇▇▇ elects to apply to this paragraph, such election to be specified in a written notice of a Responsible Officer of N▇▇▇▇▇▇ calculating in reasonable detail the amount of Cumulative Credit immediately prior to such election and the amount thereof elected to be so long as applied; provided, that with respect to any Restricted Payment made pursuant to clause (y) above, no Default has occurred and is continuing or would be caused thereby, result therefrom; (i) the declaration Covenant Parties and payment of regularly scheduled or accrued dividends the Restricted Subsidiaries may make Restricted Payments to holders of any class or series of Disqualified Stock of the Company or any Restricted Subsidiary other direct or indirect parent of the Company or any class or series of preferred stock of a Restricted Subsidiary of the Company, in each case issued on or after the Issue Date in accordance with the Fixed Charge Coverage Ratio test described in Section 5.7 hereof;Covenant Parties: (viii) payments to fund the purchase by the Company of fractional shares arising out of stock dividends, splits or combination or business combinations; (ix) the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company held by any of the Company’s (or any of its Restricted Subsidiaries’) current or former directors or employees; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may not exceed the Fair Market Value thereof and furthermore may not exceed, in any twelve-month period since the Issue Date, $0.5 million (with unused amounts (with respect to the $0.5 million limit referred to above) in any 12-month period after such date being permitted to be carried over into succeeding 12-month periods); provided, further, that the amounts in any such 12-month period may be increased by an amount not to exceed (1) the cash proceeds received by the Company or any of its Restricted Subsidiaries from the sale of the Company’s Equity Interests (other than Disqualified Stock) to any such directors or employees that occurs after the Issue Date (provided that the amount of such cash proceeds utilized for any such repurchase, retirement or other acquisition or retirement will not increase the amount available for Restricted Payments under clause (iii) of the immediately preceding paragraph and to the extent such proceeds have not otherwise been applied to the payment of Restricted Payments) plus (2) the cash proceeds of key man life insurance policies received by the Company and its Restricted Subsidiaries after the Issue Date; (x) the purchase or redemption of any Acquired Subordinated Indebtedness of the Company or any of its Restricted Subsidiaries, by application of (i) cash provided from operations to pay its operating expenses incurred in the ordinary course of business or and other corporate overhead costs and expenses (ii) proceeds from borrowings under the revolving portion of any Credit Facility (so long as within 30 days prior to such purchase or redemptionincluding administrative, a corresponding amount of borrowings under the revolving portion of such Credit Facility was repaid from cash legal, accounting and similar expenses provided from operations by third parties), which are reasonable and customary and incurred in the ordinary course of business)business and attributable to the ownership or operations of the Covenant Parties and their Restricted Subsidiaries so long as allocable to such entity in accordance with GAAP, Transaction Expenses and any reasonable and customary indemnification claims made by directors or officers of such parent attributable to the ownership or operations of the Covenant Parties and their Restricted Subsidiaries; (ii) the proceeds of which shall be used by such parent to pay franchise taxes and other fees, taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate existence; (iii) to pay federal, foreign, state and local income taxes; providedprovided that, for each fiscal year, the amount of such payments made in any respect of such case, fiscal year shall not exceed the amount that the Company is able and the Restricted Subsidiaries would be required to incur an additional $1.00 pay in respect of Indebtedness pursuant to Section 5.5(a) hereof after giving effect federal, foreign, state and local income taxes if such entities were corporations paying taxes separately from any parent entity at the highest combined applicable federal, foreign, state and local tax rate for such fiscal year (it being understood and agreed that if any Covenant Party or Restricted Subsidiary pays any such federal, foreign, state or local income taxes directly to such purchase or redemption; providedtaxing authority, further, that this clause (x) shall not permit the application of any proceeds from any other borrowings under any Credit Facility to effect any such purchase or redemption; and (xi) so long as no Default has occurred and is continuing or would be caused thereby, other Restricted Payments in an aggregate amount not to exceed $5.0 million since the Issue Date. The amount of all Restricted Payments (other than cash) shall be the Fair Market Value on the date of such Restricted Payment of the asset(s) or securities proposed to be paid, transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to such Restricted Payment. The Fair Market Value of any cash Restricted Payment shall be its face amount, and the Fair Market Value of any non-cash Restricted Payment exceeding $5.0 million shall be determined conclusively by two senior officers of the Company acting in good faith whose conclusions with respect thereto shall be set forth in an Officers’ Certificate delivered to the Holders; provided, however, that if the Fair Market Value of any non-cash Restricted Payment exceeds $10.0 million, such Fair Market Value shall be determined conclusively by the Board of Directors of the Company and set forth in a board resolution, and a certified copy of such board resolution shall be delivered to the Holders. For purposes of determining compliance with this Section 5.5, in the event that a Restricted Payment meets the criteria in duplication of more than one of the exceptions described in such amount shall not be permitted to be made pursuant to this clause (iiii)); (iv) through (xi) above or is entitled to finance any Investment that would be permitted to be made pursuant to Section 5.5(a7.02 if such parent were subject to such section; provided that (A) hereofsuch Restricted Payment shall be made substantially concurrently with the closing of such Investment and (B) such parent shall, immediately following the closing thereof, cause (1) all property acquired (whether assets or Equity Interests) to be contributed to the Covenant Parties or the Restricted Subsidiaries or (2) the merger (to the extent permitted in Section 7.04) of the Person formed or acquired into the Company shallor its Restricted Subsidiaries in order to consummate such Permitted Acquisition or Investment, in its sole discretioneach case, classify in accordance with the requirements of Section 6.11; (v) the proceeds of which shall be used by such parent to pay fees and expenses (other than to Affiliates) related to any unsuccessful equity or debt offering or to any merger or acquisition transaction permitted by this Agreement; (vi) the proceeds of which shall be used to repurchase, redeem, retire or otherwise acquire the 7% preference shares of the Company in existence on the Closing Date (at a per share price of no more than the face amount of such shares); (j) any Restricted Payment of the proceeds of Indebtedness incurred to refinance Indebtedness outstanding pursuant to Section 7.03(b)(i) and to pay accrued and unpaid interest, premium, fee and expenses related thereto; (k) after a Qualified IPO, (i) any Restricted Payment to the Company or any other direct or indirect parent of the Covenant Parties to pay listing fees and other costs and expenses attributable to being a publicly traded company which are reasonable and customary and (ii) Restricted Payments of up to 6% per annum of the net proceeds received by (or contributed to) the Covenant Parties and their Restricted Subsidiaries from such Qualified IPO; (l) the non-cash forgiveness, cancellation, termination or disposition of the Transactions Intercompany Obligations; (m) any Restricted Payment caused by granting the Ratable Security of EMTNs; and (n) other Restricted Payments, so long as at the time of making any such Restricted Payment, the Total Leverage Ratio calculated on a Pro Forma Basis is less than or later classify, reclassify or re-divide all or a portion of such Restricted Payment, in any manner that complies with this Section 5.5equal to 4.25 to 1.00.

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 or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any payment Except as otherwise provided in connection with any merger or consolidation involving the Company or any of 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 and other than dividends or distributions payable to the Company or a 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 any direct or indirect parent of the Company; (iii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Subordinated Indebtedness, except a payment of interest or principal at the Stated Maturity thereof; or (iv) make any Restricted Investment (all such payments and other actions set forth in these 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: (i) no Default or Event of Default has occurred and is continuing or would occur as a consequence of such Restricted Payment; (ii) the Company would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 5.7 hereof; and (iii) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries since the Issue Date (excluding Restricted Payments permitted by clauses (iib), (iiic), (ivd), (v), e) or (vi), (vii), (viii) and (xi) of paragraph (bf) of this Section 5.55.04 or as contemplated and permitted by Section 2.06(a), is less than the sumCredit Parties will not directly or indirectly declare, without duplicationorder, of: (1) 50% of the Consolidated Net Income of the Company for the period (taken as one accounting period) from the beginning of the fiscal quarter during which the Issue Date occurs to the end of the Company’s most recently ended fiscal quarter for which internal financial statements are available at the time of such pay or make any Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit); plus (2) 100% of (A)(i) or set aside any sum or property therefor without the aggregate net cash proceeds and (ii) the Fair Market Value of (x) marketable securities (other than marketable securities of the Company), (y) Capital Stock of a Person (other than the Company or an Affiliate of the Company) engaged in a Permitted Business and (z) other assets used in any Permitted Business, in the case of clauses (i) and (ii), received by the Company since the Issue Date as a contribution to its common equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified Stock) or from the issue or sale of convertible or exchangeable Disqualified Stock or convertible or exchangeable debt securities of the Company that have been converted into or exchanged for such Equity Interests (other than Equity Interests (or Disqualified Stock or debt securities) sold to a Subsidiary of the Company), (B) the amount by which Indebtedness of the Company or any Restricted Subsidiary is reduced on the CompanyAdministrative Agent’s consolidated balance sheet upon the conversion or exchange after the Issue Date of any such Indebtedness into or for Equity Interests (other than Disqualified Stock) of the Company, and (C) the aggregate net cash proceeds, if any, received by the Company or any of its Restricted Subsidiaries upon any conversion or exchange described in clause (1) or (2) above; plus (3) with respect to Restricted Investments made by the Company and its Restricted Subsidiaries after the Issue Date, an amount equal to the sum of (A) the net reduction in such Restricted Investments in any Person resulting from (i) repayments of loans or advances, or other transfers of assets, in each case to the Company or any Restricted Subsidiary, (ii) other repurchases, repayments or redemptions of such Restricted Investments, (iii) the sale of any such Restricted Investment or (iv) the release of any Guarantee (except to the extent any amounts are paid under such Guarantee) plus (B) all amounts representing the return of capital (excluding dividends and distributions) to the Company or any Restricted Subsidiary in respect of such Restricted Investment plus (C) with respect to any Unrestricted Subsidiary that the Board of Directors of the Company redesignates as a Restricted Subsidiary, the Fair Market Value of the Investment in such Subsidiary held by the Company or any of its Restricted Subsidiaries at the time of such redesignationprior written consent. (b) The provisions Unless an Event of Section 5.5(a) hereof will not prohibit: (i) the payment of any dividend or the consummation of any irrevocable redemption within 60 days after the date of declaration of the dividend or giving of the redemption notice, as the case may be, if at the date of declaration or notice, the dividend or redemption payment would Default shall have complied with the provisions of this Agreement and the Notes; (ii) the making of any Restricted Payment in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Subsidiary of the Company) of, Equity Interests of the Company (other than Disqualified Stock) or from the substantially concurrent contribution (other than by a Subsidiary of the Company) of capital to the Company in respect of its Equity Interests (other than Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such Restricted Payment will be excluded from clause (iii)(2) of Section 5.5(a) hereof; (iii) the repurchase, redemption, defeasance or other acquisition or retirement for value of Subordinated Indebtedness (including the payment of any required premium and any fees and expenses incurred in connection with such repurchase, redemption, defeasance or other acquisition) with the net cash proceeds from a substantially concurrent incurrence of Permitted Refinancing Indebtedness; provided that the amount of any such net cash proceeds that are utilized for any such Restricted Payment will be excluded from clause (iii)(2) of Section 5.5(a) hereof; (iv) the payment of any dividend (or, in the case of any partnership or limited liability company, any similar distribution) by a Restricted Subsidiary of the Company to the holders of the Equity Interests (other than Disqualified Stock) of such Restricted Subsidiary; provided that such dividend or similar distribution is paid to all holders of such Equity Interests on a pro rata basis based on their respective holdings of such Equity Interests; (v) the payment of any dividend on the EB-5 Preferred Stock; (vi) the repurchase, redemption or other acquisition or retirement of Equity Interests deemed to occur upon the exercise or exchange of stock options, warrants or other similar rights to the extent such Equity Interests represent a portion of the exercise or exchange price of those stock options, and the repurchase, redemption or other acquisition or retirement of Equity Interests made in lieu of withholding taxes resulting from the exercise or exchange of stock options, warrants or other similar rights; (vii) so long as no Default has occurred and is be continuing or would be caused therebyresult from such proposed Restricted Payment, the declaration and payment of regularly scheduled or accrued dividends to holders of any class or series of Disqualified Stock of the Company or any Restricted Subsidiary of the Company or any class or series of preferred stock of a Restricted Subsidiary of the Company, in each case issued on or after the Issue Date in accordance with the Fixed Charge Coverage Ratio test described in Section 5.7 hereof; (viii) payments to fund the purchase by the Company of fractional shares arising out of stock dividends, splits or combination or business combinations; (ix) the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company held by any of the Company’s (or any of its Restricted Subsidiaries’) current or former directors or employees; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests Credit Party may not exceed the Fair Market Value thereof and furthermore may not exceed, in any twelve-month period since the Issue Date, $0.5 million (with unused amounts (with respect to the $0.5 million limit referred to above) in any 12-month period after such date being permitted to be carried over into succeeding 12-month periods); provided, further, that the amounts in any such 12-month period may be increased by an amount not to exceed (1) the cash proceeds received by the Company or any of its Restricted Subsidiaries from the sale of the Company’s Equity Interests (other than Disqualified Stock) to any such directors or employees that occurs after the Issue Date (provided that the amount of such cash proceeds utilized for any such repurchase, retirement or other acquisition or retirement will not increase the amount available for Restricted Payments under clause (iii) of the immediately preceding paragraph and to the extent such proceeds have not otherwise been applied to the payment of Restricted Payments) plus (2) the cash proceeds of key man life insurance policies received by the Company and its Restricted Subsidiaries after the Issue Date; (x) the purchase or redemption of any Acquired Subordinated Indebtedness of the Company or any of its Restricted Subsidiaries, by application of (i) cash provided from operations in the ordinary course of business or (ii) proceeds from borrowings under the revolving portion make Restricted Payments consisting of any Credit Facility (so long as within 30 days prior Tax Distributions to such purchase or redemption, a corresponding amount of borrowings under the revolving portion of such Credit Facility was repaid from cash provided from operations in the ordinary course of business); provided, in any such case, that the Company is able to incur an additional $1.00 of Indebtedness pursuant to Section 5.5(a) hereof after giving effect to such purchase or redemption; provided, further, that this clause (x) shall not permit the application of any proceeds from any other borrowings under any Credit Facility to effect any such purchase or redemption; andits Equityholders. (xic) so So long as no Default has shall have occurred and is be continuing or would be caused therebyresult therefrom, other Restricted Payments any Credit Party may purchase Equity Interests, warrants, rights or options to acquire such Equity Interests from employees of such Credit Party and its Subsidiaries in connection with the termination of their employment in an aggregate amount not to exceed $5.0 million since 250,000 in the Issue Date. The amount of all Restricted Payments aggregate during any Fiscal Year. (d) Commencing in Fiscal Year 2012, after the prepayment required pursuant to Section 2.03(b)(ii) for the preceding Fiscal Year, the Credit Parties may pay cash dividends and distributions (other than cashmanagement or similar fees) shall be the Fair Market Value on the date of such Restricted Payment of the asset(s) or securities proposed to be paidits Equityholder(s), transferred or issued by the Company or such Restricted Subsidiary, so long as the case may be, pursuant to such Restricted Payment. The Fair Market Value of any cash Restricted Payment shall be its face amount, and the Fair Market Value of any non-cash Restricted Payment exceeding $5.0 million shall be determined conclusively by two senior officers of the Company acting in good faith whose conclusions with respect thereto shall be set forth in an Officers’ Certificate delivered to the Holders; provided, however, that if the Fair Market Value of any non-cash Restricted Payment exceeds $10.0 million, such Fair Market Value shall be determined conclusively by the Board of Directors of the Company and set forth in a board resolution, and a certified copy of such board resolution shall be delivered to the Holders. For purposes of determining compliance with this Section 5.5, in the event that a Restricted Payment meets the criteria of more than one of the exceptions described in (i) through no Default shall have occurred and be continuing or would result therefrom, (xiii) above the Consolidated Leverage Ratio (on a pro forma basis after giving effect to all such dividends or distributions) is entitled less than 3.25 to 1.00, (iii) the Administrative Agent shall have received all financial statements and other information then required to be delivered pursuant to Section 6.05(a), (b), (c) and (f) for the most recently ended Fiscal Year and Fiscal Quarter, and (iv) the aggregate amount of such cash dividends and distributions shall not exceed an amount equal to (x) Excess Cash Flow for the preceding Fiscal Year minus (y) the amount of the prepayment required to be made pursuant to Section 5.5(a2.03(b)(ii) hereofin respect of such Excess Cash Flow; provided, that to the extent such dividends or distributions are not permitted to be paid under this Section 5.04(d) due to the occurrence and continuance of a Default, such dividends or distributions shall accrue until such dividends or distributions are permitted to be paid under this Section 5.04(d), and such maximum amount for such Fiscal Year referred to above shall be increased dollar-for-dollar by the amount of such unpaid dividends or distributions. (e) So long as no Default shall have occurred and be continuing or would result therefrom, the Company shallCredit Parties may pay (i) the Specified Dividend on the Closing Date and (ii) Permitted Management Fees in each Fiscal Year to the extent permitted by the Management Fee Subordination Agreement after first paying the mandatory prepayment, if any, required by Section 2.03(b)(ii) which is payable in its sole discretionsuch Fiscal Year. (f) In addition to any other Restricted Payments permitted under Section 5.04(d), classify the Credit Parties may make distributions (other than management or similar fees) to their Equityholder(s), so long as (i) no Default shall have occurred and be continuing or would result therefrom, (ii) the Consolidated Leverage Ratio (on a pro forma basis after giving effect to all such Restricted Paymentdividends or distributions) is less than 3.25 to 1.00, or later classify, reclassify or re-divide all or a portion (iii) the aggregate amount of such Restricted Paymentcash dividends and distributions shall not exceed $5,000,000 in the aggregate, in and (iv) immediately before and immediately after giving pro forma effect to any manner that complies such dividend or distribution, the amount then available to be drawn under the Revolving Credit Loans, together with this Section 5.5free cash on hand of the Credit Parties, shall be at least equal to $5,000,000.

Restricted Payments. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly: (i1) declare or pay (without duplication) any dividend dividend, or make any other payment or distribution distribution, on account of the Company’s 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 any of 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 and other than dividends or distributions payable to the Company or a Restricted Subsidiary of the Company); (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 any direct or indirect parent of the Company; (iii3) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Subordinated IndebtednessIndebtedness (excluding any intercompany Indebtedness between or among the Company and any of its Restricted Subsidiaries), except a payment of interest or principal at the Stated Maturity thereof; or (iv4) make any Restricted Investment (all such payments and other actions set forth in these clauses (i1) through (iv4) above being collectively referred to as “Restricted Payments”), unless, at the time of and after giving effect to such Restricted Payment: (i1) no Default or Event of Default has occurred and is continuing or would occur as a consequence of such Restricted Payment; (ii2) the Company would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Debt to Cash Flow Ratio test set forth in Section 5.7 4.09(a) hereof; and (iii3) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries since November 3, 2006 (or, if the Issue Date Merger has been consummated, solely since the Closing Date) (excluding Restricted Payments permitted by clauses (ii2), (iii3), (iv4), (v5), (vi6), (vii7), (viii8), (9) and (xi15) (and, if the Merger has been consummated, also by clauses (11), (12), (13) and (14)) of paragraph (b) of this Section 5.54.07), is less than the sum, without duplication, duplication of: (1A) 50100% of the Consolidated Net Income Cash Flow of the Company for the period (taken as one accounting period) from the beginning of the Company’s fiscal quarter during which commencing January 1, 2007 (or, if the Issue Date occurs Merger has been consummated, from and after the Closing Date) to the end of the Company’s most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficitPayment, less 100% the product of such deficit)1.5 times the Company’s Consolidated Interest Expense, solely to the Closing Date, for the same period, and the product of 1.4 times the Company’s Consolidated Interest Expense, solely from and after the Closing Date, for the same period; plus (2B) 100% of (A)(i) the aggregate net cash proceeds and (ii) proceeds, and, if the Merger has been consummated, the Fair Market Value of (x) marketable securities (any property other than marketable securities of the Company), (y) Capital Stock of a Person (other than the Company or an Affiliate of the Company) engaged in a Permitted Business and (z) other assets used in any Permitted Businesscash, in the each case of clauses (i) and (ii), received by the Company since after November 3, 2006 (or, if the Issue Date Merger has been consummated, after the Closing Date) as a contribution to its common equity capital (other than any such contribution resulting, or deemed to result, from the Merger) or from the issue or sale of Equity Interests of the Company (other than Disqualified Stock) or from the issue or sale of convertible or exchangeable Disqualified Stock or convertible or exchangeable debt securities of the Company that have been converted into or exchanged for such Equity Interests (other than Equity Interests (or Disqualified Stock or debt securities) sold to a Subsidiary of the Company), (B) the amount by which Indebtedness of the Company or any Restricted Subsidiary is reduced on the Company’s consolidated balance sheet upon the conversion or exchange after the Issue Date of any such Indebtedness into or for Equity Interests (other than Disqualified Stock) of the Company, and (C) the aggregate net cash proceeds, if any, received by the Company or any of its Restricted Subsidiaries upon any conversion or exchange described in clause (1) or (2) above; plus (C) to the extent that any Restricted Investment that was made after November 3) with respect to Restricted Investments made by , 2006 is sold for cash or Cash Equivalents, or otherwise is liquidated or repaid for cash or Cash Equivalents (if the Company and its Restricted Subsidiaries Merger has been consummated, after the Issue Closing Date), an amount equal to the sum of such cash and Cash Equivalents; plus (AD) the net reduction in such Restricted Investments in any Person resulting from (i) repayments of loans or advances, or other transfers of assets, in each case to the Company or any Restricted Subsidiary, (ii) other repurchases, repayments or redemptions of such Restricted Investments, (iii) the sale of any such Restricted Investment or (iv) the release of any Guarantee (except to the extent any amounts are paid under such Guarantee) plus (B) all amounts representing the return of capital (excluding dividends and distributions) to the Company or any Restricted Subsidiary in respect of such Restricted Investment plus (C) with respect to that any Unrestricted Subsidiary that the Board of Directors of the Company redesignates designated as such after November 3, 2006 is redesignated as a Restricted SubsidiarySubsidiary after November 3, 2006 (or, if the Merger has been consummated, after the Closing Date), the Fair Market Value of the Company’s Investment in such Subsidiary held as of the date of such redesignation, other than to the extent such Investment constituted a Permitted Investment; plus (E) 100% of any cash dividends or cash distributions, and if the Merger has been consummated, the Fair Market Value of any property other than cash, in each case actually received directly or indirectly by the Company or a Restricted Subsidiary of the Company that is a Guarantor after November 3, 2006 (or, if the Merger has been consummated, after the Closing Date) from an Unrestricted Subsidiary of the Company, in each case, to the extent that such dividends, cash distributions or other property were not otherwise included in the Consolidated Net Income of the Company for such period and other than to the extent such Investment constituted a Permitted Investment; minus (F) the aggregate amount of any Net Equity Proceeds taken into account for purposes of its Restricted Subsidiaries Incurring Indebtedness pursuant to clause (14) of the definition of “Permitted Debt” set forth in Section 4.09(b) hereof (if the Merger has been consummated, after the Closing Date); plus (G) if the Merger has been consummated, the amount that would be calculated immediately prior to the consummation of the Merger on the Closing Date pursuant to clause (3) of the second paragraph of Section 4.07(a) of the Supplemental Indenture as in effect immediately prior to the Restatement Date (provided, that any calculation of cumulative Consolidated Cash Flow and Consolidated Interest Expense in sub-clause (A) of such clause (3) shall include (x) the Company’s last fiscal quarter ending prior to the Closing Date, and (y) the period from the beginning of the Company’s fiscal quarter during which the Closing Date occurs to the Closing Date, in each case, if internal financial statements are available for such period at the time of such redesignationcalculation, even if they are not available immediately prior to the consummation of the Merger on the Closing Date). (b) The So long as no Default has occurred and is continuing or would be caused thereby, the provisions of Section 5.5(a4.07(a) hereof will not prohibit: (i1) the payment of any dividend or the consummation of any irrevocable redemption within 60 days after the date of declaration of the dividend or giving of the redemption noticenotices, as the case may be, if at the date of declaration or notice, the dividend or redemption payment would have complied with the provisions of this Agreement and the NotesSupplemental Indenture; (ii2) the making of any Restricted Payment in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Subsidiary of the Company) of, Equity Interests of the Company (other than Disqualified Stock) or from the substantially concurrent contribution (other than by a Subsidiary of the Company) of common equity capital to the Company in respect of its Equity Interests (other than Disqualified Stock)Company; provided that the amount of any such net cash proceeds that are utilized for any such Restricted Payment will be excluded from clause (iii)(23)(B) of Section 5.5(a4.07(a) hereof, provided further that any Net Equity Proceeds (x) used for making a Restricted Investment pursuant to clause (10) of this Section 4.07(b) or (y) taken into account for purposes of incurring Indebtedness pursuant to clause (14) of the definition of “Permitted Debt” set forth in Section 4.09(b) hereof, may not also be used to make a Restricted Payment pursuant to this clause (2); (iii3) the repurchase, redemption, defeasance or other acquisition or retirement for value of Subordinated Indebtedness (including of the payment of Company or any required premium and any fees and expenses incurred in connection with such repurchase, redemption, defeasance or other acquisition) Subsidiary Guarantor with the net cash proceeds from a substantially concurrent incurrence of Permitted Refinancing Indebtedness; provided that the amount of any such net cash proceeds that are utilized for any such Restricted Payment will be excluded from clause (iii)(2) of Section 5.5(a) hereof; (iv4) the payment of any dividend (or, in the case of any partnership or limited liability company, any similar distribution) by a Restricted Subsidiary of the Company to the holders of the Equity Interests (other than Disqualified Stock) of such Restricted Subsidiary; provided that such dividend or similar distribution is paid to all holders of such its Equity Interests on a pro rata basis based on their respective holdings of such Equity Interestsbasis; (v5) the payment repurchase, redemption or other acquisition or retirement for value of any dividend on Equity Interests of Parent, HoldCo, the EB-5 Preferred StockCompany, any Restricted Subsidiary of the Company or any direct or indirect parent of the Company held by any current or former officer, director, employee or consultant of Parent, HoldCo, the Company or any of its Restricted Subsidiaries pursuant to any equity subscription agreement, stock option agreement, shareholders’ agreement or similar agreement; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may not exceed an amount equal to $20.0 million in any twelve-month period (or, if the Merger is consummated, an amount equal to $50.0 million in any fiscal year); provided further, that such amount in any twelve-month period or fiscal year, as applicable, may be increased by an amount equal to (a) the net cash proceeds from the sale of Equity Interests of Parent to current or former members of management, directors, consultants or employees that occurs after the Reference Date plus (b) the net cash proceeds of key man life insurance policies received by Parent or its Restricted Subsidiaries (or, if the Merger has been consummated, by Parent, Company or its Restricted Subsidiaries) after the Reference Date; provided further, that such amount in any twelve-month period or fiscal year, as applicable, shall be reduced by the amount of Indebtedness incurred in such twelve-month period or fiscal year pursuant to clause (22) of Section 4.09(b) hereof; (vi6) the repurchase, redemption or other acquisition or retirement of Equity Interests deemed to occur upon the exercise or exchange of stock options, warrants or other similar rights to the extent such Equity Interests represent a portion of the exercise or exchange price of those stock options, warrants or other similar rights, and the repurchase, redemption or other acquisition or retirement of Equity Interests made in lieu of withholding taxes resulting from the vesting, exercise or exchange of stock options, warrants or other similar rights; (vii7) so long as no Default has occurred and is continuing or would be caused thereby, the declaration and payment of regularly scheduled or accrued dividends to holders of any class or series of Disqualified Stock of the Company or any Restricted Subsidiary of the Company or any class or series of preferred stock of a Restricted Subsidiary of the Company, in each case issued on or after the Issue Date date of this Supplemental Indenture in accordance with the Fixed Charge Coverage Debt to Cash Flow Ratio test described in Section 5.7 4.09(a) hereof; (viii) payments 8) Permitted Payments to fund the purchase by the Company of fractional shares arising out of stock dividends, splits or combination or business combinationsParent; (ix9) the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of Parent to the extent necessary to comply with law or to prevent the loss or secure the renewal or reinstatement of any FCC License held by the Company or any of its Subsidiaries; (10) Restricted Subsidiary Investments in an amount equal to 100% of the Company held by aggregate amount of any Net Equity Proceeds, less the aggregate amount of any Net Equity Proceeds (x) used for making a Restricted Payment pursuant to clause (2) of this Section 4.07(b) or (y) taken into account for purposes of incurring Indebtedness pursuant to clause (14) of the Company’s definition of “Permitted Debt” set forth in Section 4.09(b) hereof; (11) if the Merger has been consummated, payments made to DT or its Subsidiaries from the proceeds of the Towers Transaction; (12) if the Merger has been consummated, the repurchase, redemption or other acquisition or retirement for value of any Subordinated Indebtedness pursuant to provisions similar to those of its Restricted Subsidiaries’) current or former directors or employeesSection 4.15 and Section 4.10; provided that all Notes tendered by the aggregate price paid for all such Holders of the Notes in connection with a Change of Control Offer or Asset Sale Offer, as applicable, have been repurchased, redeemedredeemed or otherwise acquired for value; (13) on and after the “Closing Date” (as defined in the Business Combination Agreement), acquired or retired Equity Interests may not exceed Restricted Payments in connection with the Fair Market Value thereof and furthermore may not exceed“Cash Payment”, as defined in the Business Combination Agreement, in any twelve-month period since the Issue Date, $0.5 million (with unused amounts (with respect to the $0.5 million limit referred to above) in any 12-month period after such date being permitted to be carried over into succeeding 12-month periods); provided, further, that the amounts in any such 12-month period may be increased by an aggregate amount not to exceed $1.5 billion; (114) if the Merger has been consummated, the making of cash payments in connection with any conversion of Convertible Debt in an aggregate amount since the Closing Date not to exceed the sum of (a) the cash proceeds principal amount of such Convertible Debt plus (b) any payments received by the Company or any of its Restricted Subsidiaries from the sale of the Company’s Equity Interests (other than Disqualified Stock) to any such directors or employees that occurs after the Issue Date (provided that the amount of such cash proceeds utilized for any such repurchase, retirement or other acquisition or retirement will not increase the amount available for Restricted Payments under clause (iii) of the immediately preceding paragraph and pursuant to the extent such proceeds have not otherwise been applied to the payment of Restricted Payments) plus (2) the cash proceeds of key man life insurance policies received by the Company and its Restricted Subsidiaries after the Issue Date; (x) the purchase exercise, settlement or redemption termination of any Acquired Subordinated Indebtedness of the Company or any of its Restricted Subsidiaries, by application of (i) cash provided from operations in the ordinary course of business or (ii) proceeds from borrowings under the revolving portion of any Credit Facility (so long as within 30 days prior to such purchase or redemption, a corresponding amount of borrowings under the revolving portion of such Credit Facility was repaid from cash provided from operations in the ordinary course of business); provided, in any such case, that the Company is able to incur an additional $1.00 of Indebtedness pursuant to Section 5.5(a) hereof after giving effect to such purchase or redemption; provided, further, that this clause (x) shall not permit the application of any proceeds from any other borrowings under any Credit Facility to effect any such purchase or redemptionrelated Permitted Bond Hedge Transactions; and (xi15) so long as no Default has occurred and is continuing or would be caused thereby, other Restricted Payments in an aggregate amount since the date of this Supplemental Indenture not to exceed $5.0 75.0 million (or, if the Merger has been consummated, in an aggregate amount since the Issue DateClosing Date not to exceed $375.0 million). The amount of all Restricted Payments (other than cash) shall will be the Fair Market Value on the date of such the Restricted Payment of the asset(s) or securities proposed to be paid, transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to such the Restricted Payment. The Fair Market Value If the Merger has not been consummated, the determination of any cash Restricted Payment shall be its face amount, and the Fair Market Value of any non-cash Restricted Payment exceeding $5.0 million shall assets or securities that are required to be determined conclusively valued by two senior officers of the Company acting this Section 4.07 will be delivered in good faith whose conclusions with respect thereto shall be set forth in an Officers’ Certificate delivered writing to the Holders; provided, however, that Trustee if the Fair Market Value of any non-cash Restricted Payment such assets or securities exceeds $10.0 million50.0 million (excluding Restricted Payments permitted by clauses (2), such Fair Market Value shall be determined conclusively by the Board (3), (6) and (9) of Directors of the Company and set forth in a board resolution, and a certified copy of such board resolution shall be delivered to the Holders. For purposes of determining compliance with this Section 5.5, in the event that a Restricted Payment meets the criteria of more than one of the exceptions described in (i) through (xi) above or is entitled to be made pursuant to Section 5.5(a) hereof, the Company shall, in its sole discretion, classify such Restricted Payment, or later classify, reclassify or re-divide all or a portion of such Restricted Payment, in any manner that complies with this Section 5.54.07(b)).

Restricted Payments. (a) The Company will not, and will 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 in connection with any merger or consolidation involving the Company or any of its Restricted Subsidiaries) 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 and other than dividends or distributions payable to the Company or a any Restricted Subsidiary of the CompanySubsidiary); (ii2) purchase, redeem or otherwise acquire or retire for value (including including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or any direct or indirect parent of the Company held by a Person other than the Company or a Restricted Subsidiary of the Company; (iii3) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value value, any Subordinated IndebtednessIndebtedness that is subordinated by its terms in right of payment to the Notes, except a payment payments of interest or principal at the Stated Maturity thereof; or (iv4) make any Restricted Investment (all such payments and other actions set forth in these clauses (i1) through (iv4) above being collectively referred to as “"Restricted Payments”"), unless, at the time of and after giving effect to such Restricted Payment: (i5) no Default or Event of Default has occurred and is continuing or would occur as a consequence of such Restricted Payment; (ii6) the Company would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-four quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to under the Fixed Charge Consolidated Coverage Ratio test set forth in Section 5.7 hereofTest; and (iii7) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries since after the Issue Date (excluding Restricted Payments permitted by clauses (ii2), (iii3), (iv4), (v5), (vi6), (vii7), (viii8), (9), (10), (11) (other than payments with respect to Equity Interests of the Company or any of its Restricted Subsidiaries), (12) and (xi13) of paragraph (b) of this Section 5.53.6(b)), is less than the sum, without duplication, of: (1A) 50% of the aggregate Consolidated Net Income of the Company (or, in the event such Consolidated Net Income shall be a deficit, minus 100% of such deficit) accrued for the period (beginning on the Issue Date and ending on the last day of the Company's most recent fiscal quarter for which financial information is available to the Company ending prior to the date of such proposed Restricted Payment, taken as one accounting period) from the beginning of the fiscal quarter during which the Issue Date occurs to the end of the Company’s most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit); plus (2B) 100% of (A)(i) the aggregate net cash proceeds and (ii) the Fair Market Value of (x) marketable securities (other than marketable securities of the Company), (y) Capital Stock of a Person (other than the Company or an Affiliate of the Company) engaged in a Permitted Business and (z) other assets used in any Permitted Business, in the case of clauses (i) and (ii), received by the Company since the Issue Date as a contribution to its common equity capital or (x) from the issue or sale of Equity Interests of the Company (other than Disqualified Stock) or from the issue or sale of convertible or exchangeable Disqualified Stock or convertible debt or exchangeable debt other securities of the Company that have been converted into or exchanged for such Equity Interests (other than (i) Equity Interests (or Disqualified Stock or convertible or exchangeable debt or other securities) sold to a Subsidiary of the CompanyCompany or any employee stock ownership plan or other trust established by the Company or any of its Subsidiaries for the benefit of its employees to the extent that the purchase by such plan or trust is financed by Indebtedness of such plan or trust owed to the Company or any of its Subsidiaries or Indebtedness guaranteed by the Company or any of its Subsidiaries, and (ii) Disqualified Stock or convertible or exchangeable debt or other securities that have been converted into or exchanged for Disqualified Stock), and (By) as capital contributions from its shareholders, plus (C) to the extent that any Unrestricted Subsidiary is redesignated as a Restricted Subsidiary after the Issue Date, the fair market value of such Subsidiary, as determined by the Board of Directors, as of the date of such redesignation, plus (D) the sum of (i) the aggregate amount by which in cash returned to the Company or any of its Restricted Subsidiaries and (ii) the aggregate principal amount of Indebtedness of the Company or any of its Restricted Subsidiary is reduced on the Company’s consolidated balance sheet upon the conversion or exchange Subsidiaries cancelled, in each case with respect to Restricted Investments made after the Issue Date whether through interest payments, principal payments, dividends, or other distributions or the forgiveness or cancellation of any such Indebtedness into or for Equity Interests Indebtedness, plus (other than Disqualified Stock) of the Company, and (CE) the aggregate net cash proceeds, if any, proceeds received by the Company or any of its Restricted Subsidiaries upon from the disposition or sale (other than to a Restricted Subsidiary), or liquidation, retirement or redemption of all or any conversion or exchange described in clause (1) or (2) above; plus (3) with respect to portion of Restricted Investments made by the Company and its Restricted Subsidiaries after the Issue Date, an amount equal to the sum of plus (AF) the net reduction in such Restricted Investments in any Person Unrestricted Subsidiaries resulting from (i) payments of dividends, repayments of the principal of loans or advances, advances or other transfers of assets, in each case assets from Unrestricted Subsidiaries to the Company or any of its Restricted SubsidiarySubsidiaries, plus (iiG) other repurchases, repayments or redemptions of such Restricted Investments, (iii) in the sale of any such Restricted Investment or (iv) the release of any Guarantee (except to the extent any amounts are paid under such Guarantee) plus (B) all amounts representing the return of capital (excluding dividends and distributions) to the Company or any Restricted Subsidiary in respect of such Restricted Investment plus (C) with respect to any Unrestricted Subsidiary event that the Board of Directors of the Company redesignates as a Restricted Subsidiary, the Fair Market Value of the Investment in such Subsidiary held by the Company or any of its Restricted Subsidiaries at makes any Investment in a Person that, as a result of or in connection with such Restricted Investment, becomes a Restricted Subsidiary, an amount equal to such portion of the time Company's or any of its Restricted Subsidiaries' existing Investments in such redesignationPerson that was previously treated as a Restricted Payment. (b) The provisions of Section 5.5(a3.6(a) hereof will not prohibit: (i1) the payment of any dividend or the consummation of any irrevocable redemption within 60 days after the date of declaration of the dividend or giving of the redemption notice, as the case may bedividend, if at the date of declaration or notice, the dividend or redemption payment would have complied with the provisions of this Agreement and Indenture; provided, however, that any such dividend will be included in the Notescalculation of the amount of Restricted Payments (without duplication for declaration); (ii2) the making of any Restricted Payment Investment or the payment on or with respect to or, the redemption, repurchase, retirement, defeasance or other acquisition of any subordinated Indebtedness of the Company or any of its Restricted Subsidiaries or of any Equity Interests of the Company in exchange for, or out of the net cash proceeds of the substantially concurrent sale of, Equity Interests of the Company (other than (i) Disqualified Stock and (ii) Equity Interests issued or sold to a Restricted Subsidiary of the Company or to any employee stock ownership plan or other trust established by the Company or any of its Subsidiaries for the benefit of its employees to the extent that the purchase by such plan or trust is financed by Indebtedness of such plan or trust owed to the Company or any of its Subsidiaries or Indebtedness guaranteed by the Company or any of its Subsidiaries) or out of the net cash proceeds of substantially concurrent capital contributions made to the Company; provided that the amount of any such net cash proceeds that are utilized for any such Restricted Investment, redemption, repurchase, retirement, defeasance or other acquisition will be excluded from clause (7)(B) of Section 3.6(a); (3) the defeasance (whether legally or as to covenants only), redemption, repurchase or other acquisition of subordinated Indebtedness of the Company or any of its Restricted Subsidiaries or Disqualified Stock of the Company with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness; (4) the declaration and payment of any dividend by a Restricted Subsidiary of the Company to the holders of such Restricted Subsidiary's Equity Interests on a pro rata basis; (5) the retirement of any shares of Disqualified Stock of the Company by conversion into, or by exchange for, shares of Disqualified Stock of the Company, or out of the net cash proceeds of the substantially concurrent sale (other than to a Subsidiary of the Company) of, Equity Interests of the Company (other than Disqualified Stock) or from the substantially concurrent contribution (other than by a Restricted Subsidiary of the Company) of capital to other shares of Disqualified Stock of the Company in respect of its Equity Interests (other than Disqualified Stock)Company; provided that the amount Disqualified Stock of the Company that replaces the retired shares of Disqualified Stock of the Company shall not require the direct or indirect payment of any such net cash proceeds that are utilized for any such Restricted Payment will be excluded from clause (iii)(2) liquidation preference earlier in time than the final Stated Maturity of Section 5.5(a) hereofthe retired shares of Disqualified Stock of the Company; (iii6) payments required to be made or otherwise contemplated pursuant to the repurchase, redemption, defeasance or other acquisition or retirement for value Plan of Subordinated Indebtedness (including the payment of any required premium and any fees and expenses incurred in connection with such repurchase, redemption, defeasance or other acquisition) with the net cash proceeds from a substantially concurrent incurrence of Permitted Refinancing Indebtedness; provided that the amount of any such net cash proceeds that are utilized for any such Restricted Payment will be excluded from clause (iii)(2) of Section 5.5(a) hereofReorganization; (iv7) the payment of any dividend (or, in the case of any partnership or limited liability company, any similar distribution) by a Restricted Subsidiary of the Company payments required to be made pursuant to the holders of CPIH Reimbursement Agreement, the Equity Interests (other than Disqualified Stock) of such Restricted Subsidiary; provided that such dividend Corporate Services Reimbursement Agreement or similar distribution is paid to all holders of such Equity Interests on a pro rata basis based on their respective holdings of such Equity InterestsTax Sharing Agreement; (v) 8) payments in respect of the payment limited partnership interests in Covanta Onondaga Limited Partnership and Covanta Huntington Limited Partnership pursuant to the limited partnership agreements of any dividend such entities as in effect on the EB-5 Preferred StockIssue Date and as amended, modified or extended on terms not materially less favorable to the Company and its Restricted Subsidiaries, taken as a whole; (vi9) the repurchase, redemption or other acquisition or retirement repurchases of Equity Interests deemed to occur upon the exercise or exchange of stock options, warrants or other similar rights to the extent options if such Equity Interests represent a portion of the exercise or exchange price of those stock options, and the repurchase, redemption or other acquisition or retirement of Equity Interests made in lieu of withholding taxes resulting from the exercise or exchange of stock options, warrants or other similar rightsthereof; (vii10) so long as no Default has occurred payments in satisfaction of earn-out and is continuing or deferred purchase price obligations pursuant to agreements relating to the acquisition of any Person which, following such acquisition, would be caused thereby, the declaration and payment of regularly scheduled or accrued dividends to holders of any class or series of Disqualified Stock of the Company or any Restricted Subsidiary of the Company or any class or series of preferred stock of a Restricted Subsidiary of the Company; (11) any Restricted Payments made pursuant to any employee benefit plan, arrangement or perquisite (including plans, arrangements or perquisites for the benefit of directors) or employment agreements or other compensation arrangements, in each case issued on or after as approved by the Issue Date Board of Directors in accordance with the Fixed Charge Coverage Ratio test described in Section 5.7 hereofits good faith judgment; (viii) payments to fund the purchase by the Company of fractional shares arising out of stock dividends, splits or combination or business combinations; (ix12) the repurchasedistribution, redemption as a dividend or other acquisition or retirement for value otherwise, of any Equity Interests of of, or Indebtedness owed to the Company or any a Restricted Subsidiary of the Company held by by, any Unrestricted Subsidiary of the Company’s ; (13) payments or distributions to dissenting stockholders pursuant to applicable law or pursuant to or in connection with a consolidation, merger or transfer of assets that complies with Section 5.1; (14) any of its Restricted Subsidiaries’) current or former directors or employees; provided that the aggregate price paid for all such repurchasedpurchase, redeemed, acquired or retired Equity Interests may not exceed the Fair Market Value thereof and furthermore may not exceed, in any twelve-month period since the Issue Date, $0.5 million (with unused amounts (with respect to the $0.5 million limit referred to above) in any 12-month period after such date being permitted to be carried over into succeeding 12-month periods); provided, further, that the amounts in any such 12-month period may be increased by an amount not to exceed (1) the cash proceeds received by the Company or any of its Restricted Subsidiaries from the sale of the Company’s Equity Interests (other than Disqualified Stock) to any such directors or employees that occurs after the Issue Date (provided that the amount of such cash proceeds utilized for any such repurchaseredemption, retirement or other acquisition or retirement will not increase the amount available for Restricted Payments under clause (iii) value of the immediately preceding paragraph and any subordinated Indebtedness pursuant to the extent such proceeds have not otherwise been applied to the payment of Restricted Payments) plus (2) the cash proceeds of key man life insurance policies received by the Company and its Restricted Subsidiaries after the Issue Date; (x) the purchase or redemption of any Acquired Subordinated Indebtedness of the Company or any of its Restricted Subsidiaries, by application of (i) cash provided from operations in the ordinary course of business or (ii) proceeds from borrowings under the revolving portion of any Credit Facility (so long as within 30 days prior to such purchase or redemption, a corresponding amount of borrowings under the revolving portion provisions of such Credit Facility was repaid from cash Indebtedness relating to a change of control or sale of assets; provided from operations in the ordinary course of business); provided, in any such case, that the Company is able shall have complied with any requirement to incur an additional $1.00 make a Change of Indebtedness pursuant to Section 5.5(a) hereof after giving effect to Control Offer or Asset Sale Offer, as the case may be, in connection with such purchase change of control or redemption; provided, further, that this clause (x) shall not permit the application sale of any proceeds from any other borrowings under any Credit Facility to effect any such purchase or redemptionassets; and (xi15) so long as no Default has occurred and is continuing or would be caused thereby, other Restricted Payments in an aggregate amount not to exceed $5.0 million since the Issue Date. 10.0 million. (c) The amount of all Restricted Payments (other than cash) shall will be the Fair Market Value fair market value on the date of such the Restricted Payment of the asset(s) assets or securities proposed to be paid, transferred or issued by the Company or such any Restricted Subsidiary, as the case may be, pursuant to such the Restricted Payment. The Fair Market Value fair market value of any cash Restricted Payment shall assets or securities that are required to be its face amountvalued by this covenant will be determined, and the Fair Market Value of any non-cash Restricted Payment exceeding $5.0 million shall be determined conclusively by two senior officers of the Company acting in good faith whose conclusions with respect thereto shall be set forth in an Officers’ Certificate delivered to the Holders; providedfaith, however, that if the Fair Market Value of any non-cash Restricted Payment exceeds $10.0 million, such Fair Market Value shall be determined conclusively by the Board of Directors Directors. The Board of Directors' determination must be based upon an opinion or appraisal issued by an accounting, appraisal or investment banking firm of national standing if the fair market value exceeds $15.0 million and if the Restricted Payment is to be made to an Affiliate of the Company and set forth in a board resolution, and a certified copy of such board resolution shall be delivered or to the Holdersholders of or in respect of any Equity Interest. For purposes Not later than the date of determining compliance with this Section 5.5, in the event that a making any Restricted Payment meets the criteria of more than one of the exceptions described in (i) through (xi) above or is entitled to be made pursuant to Section 5.5(a) hereofhaving a fair market value exceeding $15.0 million, the Company shallwill deliver to the Trustee an Officer's Certificate stating that such Restricted Payment is permitted and setting forth the basis upon which the calculations required by this Section 3.6 (c) were computed, together with a copy of the fairness opinion or appraisal required by this Indenture. In determining whether any Restricted Payment is permitted by the covenant described above, the Company may in its sole discretion, classify such Restricted Payment, or later classify, reclassify or re-divide discretion allocate all or a any portion of such Restricted PaymentPayment among the categories described in the immediately preceding paragraph or among such categories and the types of Restricted Payments described in the first paragraph under the "Restricted Payments" heading above; provided that at the time of such allocation, in any manner that complies with this Section 5.5all such Restricted Payments, or allocated portions thereof, would be permitted under the various provisions of the covenant described above.

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 in connection with any merger or consolidation involving the Company or any of its Restricted Subsidiaries) 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 and other than dividends or distributions payable to the Company or a Restricted Subsidiary of the Company); (ii2) purchase, redeem or otherwise acquire or retire for value (including including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or any direct or indirect parent of the Company; (iii3) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Subordinated IndebtednessIndebtedness that is subordinated to the Notes or the Subsidiary Guarantees, except a payment of interest or principal at the Stated Maturity thereof; or (iv4) make any Restricted Investment (all such payments and other actions set forth in these clauses (i1) through (iv4) above being collectively referred to as “"Restricted Payments”"), unless, at the time of and after giving effect to such Restricted Payment: (i1) no Default or Event of Default has occurred and is continuing or would occur as a consequence of such Restricted Payment;; and (ii2) the Company would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 5.7 4.09 hereof; and (iii3) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries since after the Issue Date date of this Indenture (excluding Restricted Payments permitted by clauses (ii2), (iii3), (iv4), (v6), (vi), (vii), (viii7) and (xi8) of Section 4.07(b) of paragraph (b) of this Section 5.5hereof), is less than the sum, without duplication, of: (1a) 50% of the Consolidated Net Income of the Company for the period (taken as one accounting period) from the beginning of the first fiscal quarter during which commencing after the Issue Date occurs date of this Indenture to the end of the Company’s 's most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit); , plus (2b) 100% of (A)(i) the aggregate net cash proceeds and (ii) the Fair Market Value of (x) marketable securities (other than marketable securities of the Company), (y) Capital Stock of a Person (other than the Company or an Affiliate of the Company) engaged in a Permitted Business and (z) other assets used in any Permitted Business, in the case of clauses (i) and (ii), received by the Company since the Issue Date date of this Indenture as a contribution to its common equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified Stock) or from the issue or sale of convertible or exchangeable Disqualified Stock or convertible or exchangeable debt securities of the Company that have been converted into or exchanged for such Equity Interests (other than Equity Interests (or Disqualified Stock or debt securities) sold to a Subsidiary of the Company), plus (Bc) to the extent that any Restricted Investment that was made after the date of this Indenture is sold for cash or otherwise liquidated or repaid for cash, the lesser of (i) the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any) and (ii) the initial amount by which Indebtedness of such Restricted Investment, plus (d) to the extent that any of the Company or any Unrestricted Subsidiaries is redesignated as a Restricted Subsidiary is reduced on the Company’s consolidated balance sheet upon the conversion or exchange after the Issue Date date of any such Indebtedness into or for Equity Interests (other than Disqualified Stock) this Indenture, the fair market value of the Company, and (C) the aggregate net cash proceeds, if any, received by the Company or any of its Restricted Subsidiaries upon any conversion or exchange described in clause (1) or (2) above; plus (3) with respect to Restricted Investments made by the Company and its Restricted Subsidiaries after the Issue Date, an amount equal to the sum of (A) the net reduction in such Restricted Investments in any Person resulting from (i) repayments of loans or advances, or other transfers of assets, in each case to the Company or any Restricted Subsidiary, (ii) other repurchases, repayments or redemptions of such Restricted Investments, (iii) the sale of any such Restricted Investment or (iv) the release of any Guarantee (except to the extent any amounts are paid under such Guarantee) plus (B) all amounts representing the return of capital (excluding dividends and distributions) to the Company or any Restricted Subsidiary in respect of such Restricted Investment plus (C) with respect to any Unrestricted Subsidiary that the Board of Directors of the Company redesignates as a Restricted Subsidiary, the Fair Market Value of the 's Investment in such Subsidiary held by as of the Company or any of its Restricted Subsidiaries at the time date of such redesignation. (b) The provisions of Section 5.5(a) hereof will not prohibit: (i) the payment of any dividend or the consummation of any irrevocable redemption within 60 days after the date of declaration of the dividend or giving of the redemption notice, as the case may be, if at the date of declaration or notice, the dividend or redemption payment would have complied with the provisions of this Agreement and the Notes; (ii) the making of any Restricted Payment in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Subsidiary of the Company) of, Equity Interests of the Company (other than Disqualified Stock) or from the substantially concurrent contribution (other than by a Subsidiary of the Company) of capital to the Company in respect of its Equity Interests (other than Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such Restricted Payment will be excluded from clause (iii)(2) of Section 5.5(a) hereof; (iii) the repurchase, redemption, defeasance or other acquisition or retirement for value of Subordinated Indebtedness (including the payment of any required premium and any fees and expenses incurred in connection with such repurchase, redemption, defeasance or other acquisition) with the net cash proceeds from a substantially concurrent incurrence of Permitted Refinancing Indebtedness; provided that the amount of any such net cash proceeds that are utilized for any such Restricted Payment will be excluded from clause (iii)(2) of Section 5.5(a) hereof; (iv) the payment of any dividend (or, in the case of any partnership or limited liability company, any similar distribution) by a Restricted Subsidiary of the Company to the holders of the Equity Interests (other than Disqualified Stock) of such Restricted Subsidiary; provided that such dividend or similar distribution is paid to all holders of such Equity Interests on a pro rata basis based on their respective holdings of such Equity Interests; (v) the payment of any dividend on the EB-5 Preferred Stock; (vi) the repurchase, redemption or other acquisition or retirement of Equity Interests deemed to occur upon the exercise or exchange of stock options, warrants or other similar rights to the extent such Equity Interests represent a portion of the exercise or exchange price of those stock options, and the repurchase, redemption or other acquisition or retirement of Equity Interests made in lieu of withholding taxes resulting from the exercise or exchange of stock options, warrants or other similar rights; (vii) so long as no Default has occurred and is continuing or would be caused thereby, the declaration and payment of regularly scheduled or accrued dividends to holders of any class or series of Disqualified Stock of the Company or any Restricted Subsidiary of the Company or any class or series of preferred stock of a Restricted Subsidiary of the Company, in each case issued on or after the Issue Date in accordance with the Fixed Charge Coverage Ratio test described in Section 5.7 hereof; (viii) payments to fund the purchase by the Company of fractional shares arising out of stock dividends, splits or combination or business combinations; (ix) the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company held by any of the Company’s (or any of its Restricted Subsidiaries’) current or former directors or employees; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may not exceed the Fair Market Value thereof and furthermore may not exceed, in any twelve-month period since the Issue Date, $0.5 million (with unused amounts (with respect to the $0.5 million limit referred to above) in any 12-month period after such date being permitted to be carried over into succeeding 12-month periods); provided, further, that the amounts in any such 12-month period may be increased by an amount not to exceed (1) the cash proceeds received by the Company or any of its Restricted Subsidiaries from the sale of the Company’s Equity Interests (other than Disqualified Stock) to any such directors or employees that occurs after the Issue Date (provided that the amount of such cash proceeds utilized for any such repurchase, retirement or other acquisition or retirement will not increase the amount available for Restricted Payments under clause (iii) of the immediately preceding paragraph and to the extent such proceeds have not otherwise been applied to the payment of Restricted Payments) plus (2) the cash proceeds of key man life insurance policies received by the Company and its Restricted Subsidiaries after the Issue Date; (x) the purchase or redemption of any Acquired Subordinated Indebtedness of the Company or any of its Restricted Subsidiaries, by application of (i) cash provided from operations in the ordinary course of business or (ii) proceeds from borrowings under the revolving portion of any Credit Facility (so long as within 30 days prior to such purchase or redemption, a corresponding amount of borrowings under the revolving portion of such Credit Facility was repaid from cash provided from operations in the ordinary course of business); provided, in any such case, that the Company is able to incur an additional $1.00 of Indebtedness pursuant to Section 5.5(a) hereof after giving effect to such purchase or redemption; provided, further, that this clause (x) shall not permit the application of any proceeds from any other borrowings under any Credit Facility to effect any such purchase or redemption; and (xi) so long as no Default has occurred and is continuing or would be caused thereby, other Restricted Payments in an aggregate amount not to exceed $5.0 million since the Issue Date. The amount of all Restricted Payments (other than cash) shall be the Fair Market Value on the date of such Restricted Payment of the asset(s) or securities proposed to be paid, transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to such Restricted Payment. The Fair Market Value of any cash Restricted Payment shall be its face amount, and the Fair Market Value of any non-cash Restricted Payment exceeding $5.0 million shall be determined conclusively by two senior officers of the Company acting in good faith whose conclusions with respect thereto shall be set forth in an Officers’ Certificate delivered to the Holders; provided, however, that if the Fair Market Value of any non-cash Restricted Payment exceeds $10.0 million, such Fair Market Value shall be determined conclusively by the Board of Directors of the Company and set forth in a board resolution, and a certified copy of such board resolution shall be delivered to the Holders. For purposes of determining compliance with this Section 5.5, in the event that a Restricted Payment meets the criteria of more than one of the exceptions described in (i) through (xi) above or is entitled to be made pursuant to Section 5.5(a) hereof, the Company shall, in its sole discretion, classify such Restricted Payment, or later classify, reclassify or re-divide all or a portion of such Restricted Payment, in any manner that complies with this Section 5.5.

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 (including, without limitation, any payment in connection with any merger or consolidation involving the Company or any of its Restricted SubsidiariesCompany) 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 and other than dividends or distributions payable to the Company or a Company), provided that each Restricted Subsidiary of the Company); Company will be permitted to declare and pay dividends to the holders of such Restricted Subsidiary's common Equity Interests on a pro rata basis; (ii) purchase, redeem or otherwise acquire or retire for value (including including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company, any Restricted Subsidiary of the Company or any direct Affiliate of the Company (other than any such Equity Interests owned by the Company or indirect parent any Restricted Subsidiary of the Company; ); (iii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value value, any Subordinated IndebtednessIndebtedness that is subordinated to the Senior Notes, except (x) a payment of interest or principal at the Stated Maturity thereofor (y) pursuant to a change of control provision applicable to such subordinated Indebtedness, provided that the Company has complied with the terms of Section 4.15 hereof and has paid, or has made adequate provision in the reasonable judgment of the Board of Directors for the payment of, the Senior Notes that have been or may be tendered in response to a Change of Control Offer; or or (iv) make any Restricted Investment (all such payments and other actions set forth in these 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: (ia) no Default or Event of Default has shall have occurred and is be continuing or would occur as a consequence of such Restricted Payment;thereof; and (iib) the Company would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 5.7 4.09 hereof; and (iiic) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries since after the Issue Date date of this Indenture (including all Restricted Payments permitted by the next succeeding paragraph but excluding Restricted Payments permitted by clauses (ii), (iii), (iv), (v), (vi), (vii), (viii) and (xivi) of paragraph (b) of this Section 5.5the next succeeding paragraph), is less than the sum, without duplication, of: sum of (1i) 50% of the Consolidated Net Income of the Company for the period (taken as one accounting period) from the beginning of the first fiscal quarter during which commencing after the Issue Date occurs date of this Indenture to the end of the Company’s 's most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit); plus , plus (2ii) 100% of (A)(i) the aggregate net cash proceeds and (ii) the Fair Market Value of (x) marketable securities (other than marketable securities of the Company), (y) Capital Stock of a Person (other than the Company or an Affiliate of the Company) engaged in a Permitted Business and (z) other assets used in any Permitted Business, in the case of clauses (i) and (ii), received by the Company since the Issue Date as a contribution to its common equity capital or from the issue or sale since the date of this Indenture of Equity Interests of the Company (other than Disqualified Stock) or from the issue or sale of convertible or exchangeable Disqualified Stock or convertible or exchangeable debt securities of the Company that have been converted into or exchanged for such Equity Interests (other than Equity Interests (or Disqualified Stock or convertible debt securities) sold to a Subsidiary of the CompanyCompany and other than Disqualified Stock or convertible debt securities that have been converted into Disqualified Stock), plus (iii) to the extent that any Restricted Investment that was made after the date of this Indenture is sold for cash or otherwise liquidated or repaid for cash, the lesser of (A) the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any) and (B) the initial amount by which Indebtedness of the Company or any such Restricted Subsidiary is reduced on the Company’s consolidated balance sheet upon the conversion or exchange after the Issue Date of any such Indebtedness into or for Equity Interests (other than Disqualified Stock) of the Company, Investment and (C) the aggregate net cash proceeds, if any, received by the Company or any amount resulting from redesignations of its Unrestricted Subsidiaries as Restricted Subsidiaries upon any conversion or exchange described (in clause (1each case, such amount to be valued as provided in the second succeeding paragraph) or (2) above; plus (3) with respect not to Restricted exceed the amount of Investments previously made by the Company and its Restricted Subsidiaries after the Issue Date, an amount equal to the sum of (A) the net reduction in such Restricted Investments in any Person resulting from (i) repayments of loans or advances, or other transfers of assets, in each case to the Company or any Restricted Subsidiary, (ii) other repurchases, repayments or redemptions of such Restricted Investments, (iii) the sale of any such Restricted Investment or (iv) the release of any Guarantee (except to the extent any amounts are paid under such Guarantee) plus (B) all amounts representing the return of capital (excluding dividends and distributions) to the Company or any Restricted Subsidiary in respect of such Restricted Investment plus (C) with respect to any Unrestricted Subsidiary that the Board of Directors of the Company redesignates and which was treated as a Restricted Subsidiary, the Fair Market Value of the Investment in such Subsidiary held by the Company or any of its Restricted Subsidiaries at the time of such redesignation. (b) Payment under this Indenture. The foregoing provisions of Section 5.5(a) hereof will shall not prohibit: prohibit (i) the payment of any dividend or the consummation of any irrevocable redemption within 60 days after the date of declaration of the dividend or giving of the redemption notice, as the case may bethereof, if at the said date of declaration or notice, the dividend or redemption such payment would have complied with the provisions of this Agreement and the Notes; Indenture; (ii) the making redemption, repurchase, retirement, defeasance or other acquisition of any Restricted Payment subordinated Indebtedness or Equity Interests of the Company in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Restricted Subsidiary of the Company) of, other Equity Interests of the Company (other than Disqualified Stock) or from the substantially concurrent contribution (other than by a Subsidiary of the Company) of capital to the Company in respect of its Equity Interests (other than any Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such Restricted Payment will redemption, repurchase, retirement, defeasance or other acquisition shall be excluded from clause (iii)(2c)(ii) of Section 5.5(a) hereof; the preceding paragraph; (iii) the repurchasedefeasance, redemption, defeasance repurchase or other acquisition of pari passu or retirement for value of Subordinated subordinated Indebtedness (including the payment of any required premium and any fees and expenses incurred in connection with such repurchase, redemption, defeasance or other acquisition) with the net cash proceeds from a substantially concurrent an incurrence of Permitted Refinancing Indebtedness; provided that the amount of any such net cash proceeds that are utilized for any such Restricted Payment will be excluded from clause (iii)(2) of Section 5.5(a) hereof; (iv) the payment of any dividend (or, in the case of any partnership or limited liability company, any similar distribution) by a Restricted Subsidiary of the Company to the holders of the Equity Interests (other than Disqualified Stock) of such Restricted Subsidiary; provided that such dividend or similar distribution is paid to all holders of such Equity Interests on a pro rata basis based on their respective holdings of such Equity Interests; (v) the payment of any dividend on the EB-5 Preferred Stock; (vi) the repurchase, redemption or other acquisition or retirement of Equity Interests deemed to occur upon the exercise or exchange of stock options, warrants or other similar rights to the extent such Equity Interests represent a portion of the exercise or exchange price of those stock options, and the repurchase, redemption or other acquisition or retirement of Equity Interests made in lieu of withholding taxes resulting from the exercise or exchange of stock options, warrants or other similar rights; (vii) so long as no Default has occurred and is continuing or would be caused thereby, the declaration and payment of regularly scheduled or accrued dividends to holders of any class or series of Disqualified Stock of the Company or any Restricted Subsidiary of the Company or any class or series of preferred stock of a Restricted Subsidiary of the Company, in each case issued on or after the Issue Date in accordance with the Fixed Charge Coverage Ratio test described in Section 5.7 hereof; (viii) payments to fund the purchase by the Company of fractional shares arising out of stock dividends, splits or combination or business combinations; (ix) the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company held by any member of the Company’s 's (or any of its Restricted Subsidiaries’') current management, employees or former directors consultants pursuant to any management, employee or employeesconsultant equity subscription agreement or stock option agreement; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may shall not exceed the Fair Market Value thereof and furthermore may not exceed, $500,000 in any twelve-month period since the Issue Date, $0.5 million (with unused amounts (with respect to the $0.5 million limit referred to above) in any 12-month period and no Default or Event of Default shall have occurred and be continuing immediately after such date being permitted to be carried over into succeeding 12-month periods)transaction; provided, further, that the amounts (v) cash payments in any such 12-month period may be increased by an amount not to exceed (1) the cash proceeds received by the Company or any lieu of its Restricted Subsidiaries from the sale of the Company’s Equity Interests (other than Disqualified Stock) to any such directors or employees that occurs after the Issue Date (provided that the amount of such cash proceeds utilized for any such repurchase, retirement or other acquisition or retirement will not increase the amount available for Restricted Payments under clause (iii) of the immediately preceding paragraph and to the extent such proceeds have not otherwise been applied to the payment of Restricted Payments) plus (2) the cash proceeds of key man life insurance policies received by the Company and its Restricted Subsidiaries after the Issue Date; (x) the purchase or redemption of any Acquired Subordinated Indebtedness fractional shares issuable as dividends on preferred securities of the Company or any of its Restricted Subsidiaries; provided that such cash payments shall not exceed $50,000 in the aggregate in any twelve-month period and no Default or Event of Default shall have occurred and be continuing immediately after such transaction; and (vi) payments pursuant to the Varsity Merger Documents. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default; provided that in no event shall the business currently operated by ▇▇▇▇▇▇▇, Inc. and Varsity be transferred to or held by application an Unrestricted Subsidiary. For purposes of making such determination, all outstanding Investments by the Company and its Restricted Subsidiaries (except to the extent repaid in cash) in the Subsidiary so designated shall be deemed to be Restricted Payments at the time of such designation and shall reduce the amount available for Restricted Payments under the first paragraph of this Section 4.07 hereof. All such outstanding Investments shall be deemed to constitute Investments in an amount equal to the greatest of (ix) cash provided from operations in the ordinary course of business or (ii) proceeds from borrowings under the revolving portion of any Credit Facility (so long as within 30 days prior to such purchase or redemption, a corresponding amount of borrowings under the revolving portion net book value of such Credit Facility was repaid from cash provided from operations in Investments at the ordinary course time of business); provided, in any such case, that designation and (y) the Company is able fair market value of such Investments at the time of such designation. Such designation shall only be permitted if such Restricted Payment would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. Any such designation by the Board of Directors shall be evidenced to incur an additional $1.00 the Trustee by filing with the Trustee a certified copy of Indebtedness pursuant to Section 5.5(a) hereof after the Board Resolution giving effect to such purchase designation and an Officers' Certificate certifying that such designation complied with the foregoing conditions and was permitted by the provisions of Section 4.07. If, at any time, any Unrestricted Subsidiary would fail to meet the foregoing requirements as an Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary of the Company as of such date (and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09 hereof the Company shall be in default of such covenant). The Board of Directors of the Company may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided that such designation shall be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of the Company of any outstanding Indebtedness of such Unrestricted Subsidiary and such designation shall only be permitted if (i) such Indebtedness is permitted under Section 4.09 hereof calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period, and (ii) no Default or redemption; provided, further, that this Event of Default would be in existence following such designation. In computing the Consolidated Net Income of the Company under the foregoing clause (xc)(i), (i) the Company may use audited financial statements for the portions of the relevant period for which audited financial statements are available on the date of determination and unaudited financial statements and other current financial data based on the books and records of the Company for the remaining portion of such period and (ii) the Company shall not permit be permitted to rely in good faith on the application financial statements and other financial data derived from its books and records that are available on the date of determination. If the Company makes a Restricted Payment that, at the time of the making of such Restricted Payment, would in the good faith determination of the Company be permitted under the requirements of this Indenture, such Restricted Payment shall be deemed to have been made in compliance with this Indenture notwithstanding any proceeds from subsequent adjustments made in good faith to the Company's financial statements affecting Consolidated Net Income of the Company for any other borrowings under any Credit Facility to effect any such purchase or redemption; and (xi) so long as no Default has occurred and is continuing or would be caused thereby, other Restricted Payments in an aggregate amount not to exceed $5.0 million since the Issue Dateperiod. The amount of all Restricted Payments (other than cash) shall be the Fair Market Value fair market value on the date of such the Restricted Payment of the asset(s) or securities proposed to be paid, transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to such the Restricted Payment. The Fair Market Value of any cash Restricted Payment shall be its face amount, and the Fair Market Value fair market value of any non-cash Restricted Payment exceeding $5.0 million shall be determined conclusively by two senior officers the Board of the Company acting in good faith Directors whose conclusions resolution with respect thereto shall be set forth in an Officers’ Certificate delivered to the Holders; providedTrustee, howeversuch determination to be based upon an opinion or appraisal issued by an accounting, that appraisal or investment banking firm of national standing if the Fair Market Value of any non-cash Restricted Payment such fair market value exceeds $10.0 5.0 million, such Fair Market Value shall be determined conclusively by . Not later than the Board date of Directors of the Company and set forth in a board resolution, and a certified copy of such board resolution shall be delivered to the Holders. For purposes of determining compliance with this Section 5.5, in the event that a making any Restricted Payment meets the criteria of more than one of the exceptions described in (i) through (xi) above or is entitled to be made pursuant to Section 5.5(a) hereofPayment, the Company shall, in its sole discretion, classify shall deliver to the Trustee an Officers' Certificate stating that such Restricted Payment, or later classify, reclassify or re-divide all or a portion of such Restricted Payment, in any manner that complies with Payment is permitted and setting forth the basis upon which the calculations required by this Section 5.54.07 hereof were computed, together with a copy of any fairness opinion or appraisal required by this Indenture.

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’ Subsidiary's, Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company or any of its Restricted SubsidiariesSubsidiary) or to the direct or indirect holders of the Company’s 's or any of its Restricted Subsidiaries’ Subsidiary's Equity Interests in their capacity as such (other than dividends or distributions (i) payable in Equity Interests (other than Disqualified Stock) of the Company and other than dividends or distributions (ii) payable to the Company or and/or a Restricted Subsidiary of the Company); (ii2) purchase, redeem or otherwise acquire or retire for value (including including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or any direct or indirect parent of the Company; (iii3) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Subordinated IndebtednessIndebtedness that is expressly subordinated to the Notes or the Note Guarantees, except a payment of interest or principal at the Stated Maturity thereofthereof or a payment of principal or interest on Indebtedness owed to the Company or any of its Restricted Subsidiaries; or (iv4) make any Restricted Investment (all such payments and other actions set forth in these clauses (i1) through (iv4) above being collectively referred to as “"Restricted Payments”"), unless, at the time of and after giving effect to such Restricted Payment: (i1) no Default or Event of Default has occurred and is continuing or would occur as a consequence of such Restricted Payment;; and (ii2) the Company would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 5.7 4.09 hereof; and (iii3) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries since the Issue Date after May 3, 2002 (excluding Restricted Payments permitted by clauses (ii2), (iii3), (iv4), (v5), (vi7), (vii), (viii) 8) and (xi9) of paragraph (b) of this Section 5.5the next succeeding paragraph), is less than the sum, without duplication, of: (1a) 50% of the Consolidated Net Income After Preferred Cash Dividend of the Company Company, for the period (taken as one accounting period) from the beginning of the first fiscal quarter during which the Issue Date occurs commencing after May 3, 2002 to the end of the Company’s 's most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit); , plus (2b) 100% of (A)(i) the aggregate net cash proceeds and (ii) the Fair Market Value of (x) marketable securities (other than marketable securities of the Company), (y) Capital Stock of a Person (other than the Company or an Affiliate of the Company) engaged in a Permitted Business and (z) other assets used in any Permitted Business, in the case of clauses (i) and (ii), received by the Company since the Issue Date May 3, 2002 as a contribution to its common equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified Stock) or from the issue or sale of convertible or exchangeable Disqualified Stock or convertible or exchangeable debt securities of the Company that have been converted into or exchanged for such Equity Interests (other than Equity Interests (or Disqualified Stock or debt securities) sold to a Subsidiary of the Company), plus (Bc) to the extent that any Restricted Investment (other than a Restricted Investment permitted by clause (5) of the next succeeding paragraph) that was made after May 3, 2002 is sold for cash or otherwise liquidated or repaid for cash, the lesser of (i) the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any) and (ii) the initial amount by which Indebtedness of such Restricted Investment, plus (d) to the extent that any Unrestricted Subsidiary of the Company or any is redesignated as a Restricted Subsidiary is reduced on after May 3, 2002, the Company’s consolidated balance sheet upon lesser of (i) the conversion or exchange after the Issue Date of any such Indebtedness into or for Equity Interests (other than Disqualified Stock) fair market value of the Company, and (C) the aggregate net cash proceeds, if any, received by the Company or any of its Restricted Subsidiaries upon any conversion or exchange described in clause (1) or (2) above; plus (3) with respect to Restricted Investments made by the Company and its Restricted Subsidiaries after the Issue Date, an amount equal to the sum of (A) the net reduction in such Restricted Investments in any Person resulting from (i) repayments of loans or advances, or other transfers of assets, in each case to the Company or any Restricted Subsidiary, (ii) other repurchases, repayments or redemptions of such Restricted Investments, (iii) the sale of any such Restricted Investment or (iv) the release of any Guarantee (except to the extent any amounts are paid under such Guarantee) plus (B) all amounts representing the return of capital (excluding dividends and distributions) to the Company or any Restricted Subsidiary in respect of such Restricted Investment plus (C) with respect to any Unrestricted Subsidiary that the Board of Directors of the Company redesignates as a Restricted Subsidiary, the Fair Market Value of the 's Investment in such Subsidiary held by as of the Company or any of its Restricted Subsidiaries at the time date of such redesignation.redesignation or (ii) such fair market value as of the date on which such Subsidiary was originally designated as an Unrestricted Subsidiary, plus (be) The $10.0 million. So long as no Default has occurred and is continuing or would be caused thereby, the preceding provisions of Section 5.5(a) hereof will shall not prohibit: (i1) the payment of any dividend or the consummation of any irrevocable redemption within 60 days after the date of declaration of the dividend or giving of the redemption notice, as the case may bedividend, if at the date of declaration or notice, the dividend or redemption payment would have complied with the provisions of this Agreement and the NotesIndenture; (ii2) the making redemption, repurchase, retirement, defeasance or other acquisition of any Restricted Payment subordinated Indebtedness of the Company or any Guarantor or of any Equity Interests of the Company in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Subsidiary of the Company) of, Equity Interests of the Company (other than Disqualified Stock) or from the substantially concurrent contribution (other than by a Subsidiary of the Company) of capital to the Company in respect of its Equity Interests (other than Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such Restricted Payment will redemption, repurchase, retirement, defeasance or other acquisition shall be excluded from clause (iii)(23)(b) of Section 5.5(a) hereofthe preceding paragraph; (iii3) the repurchasedefeasance, redemption, defeasance repurchase or other acquisition of subordinated Indebtedness of the Company or retirement for value of Subordinated Indebtedness (including the payment of any required premium and any fees and expenses incurred in connection with such repurchase, redemption, defeasance or other acquisition) Guarantor with the net cash proceeds from a substantially concurrent an incurrence of Permitted Refinancing Indebtedness; provided that the amount of any such net cash proceeds that are utilized for any such Restricted Payment will be excluded from clause (iii)(2) of Section 5.5(a) hereof; (iv4) the payment of any dividend (or, in the case of any partnership or limited liability company, any similar distribution) by a Restricted Subsidiary of the Company to the holders of the Equity Interests (other than Disqualified Stock) of such Restricted Subsidiary; provided that such dividend or similar distribution is paid to all holders of such its Equity Interests on a pro rata basis based on their respective holdings of such Equity Interestsbasis; (v5) (a) the payment of any dividend on the EB-5 Preferred Stock; (vi) the repurchasepurchase, redemption or other acquisition acquisition, cancellation or retirement for value of Equity Interests deemed to occur upon the exercise Capital Stock, or exchange of stock options, warrants warrants, equity appreciation rights or other similar rights to the extent such Equity Interests represent a portion of the exercise purchase or exchange price of those stock options, and the repurchase, redemption or other acquisition or retirement of Equity Interests made in lieu of withholding taxes resulting from the exercise or exchange of stock options, warrants or other similar rights; (vii) so long as no Default has occurred and is continuing or would be caused thereby, the declaration and payment of regularly scheduled or accrued dividends to holders of any class or series of Disqualified acquire Capital Stock of the Company or any Restricted Subsidiary of the Company or any class or series of preferred stock of a Restricted Subsidiary of the Company, in each case issued on or after the Issue Date in accordance with the Fixed Charge Coverage Ratio test described in Section 5.7 hereof; (viii) payments to fund the purchase by the Company of fractional shares arising out of stock dividends, splits or combination or business combinations; (ix) the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Restricted Subsidiary parent of the Company held by any existing or former employees of the Company’s (Company or any Subsidiary of its Restricted Subsidiaries’) current the Company or former directors their assigns, estates or heirs, in each case in connection with the repurchase provisions under employee stock option or stock purchase agreements or other agreements to compensate management employees; provided that such redemptions or repurchases pursuant to this clause will not exceed $2.5 million in the aggregate price paid during any calendar year and $10.0 million in the aggregate for all such repurchased, redeemed, acquired or retired Equity Interests may not exceed the Fair Market Value thereof redemptions and furthermore may not exceed, in any twelve-month period since the Issue Date, $0.5 million (with unused amounts (with respect to the $0.5 million limit referred to above) in any 12-month period after such date being permitted to be carried over into succeeding 12-month periods)repurchases; provided, provided further, that the Company may carry-forward and make in a subsequent calendar year, in addition to the amounts permitted for such calendar year, the amount of such redemptions or repurchases permitted to have been made but not made in any preceding calendar year; provided further that such 12-month period amount in any calendar year may be increased by an amount not to exceed (1i) the cash proceeds received by from the sale of Capital Stock of the Company to existing or former employees of the Company or any Subsidiary of its Restricted Subsidiaries the Company after the date the Notes are originally issued (to the extent the cash proceeds from the sale of the Company’s Equity Interests (other than Disqualified Stock) to any such directors or employees that occurs after the Issue Date (provided that the amount of such cash proceeds utilized for any such repurchase, retirement or other acquisition or retirement will not increase the amount available for Restricted Payments under clause (iii) of the immediately preceding paragraph and to the extent such proceeds Capital Stock have not otherwise been applied to the payment of Restricted PaymentsPayments by virtue of clause (3)(b) of the preceding paragraph) plus (2ii) the cash proceeds of key man life insurance policies received by the Company and its Restricted Subsidiaries after the date the Notes are originally issued less (iii) the amount of any Restricted Payments previously made pursuant to clause (i) and (ii) of this clause (5)(a); and (b) loans or advances to employees or directors of the Company or any Subsidiary of the Company the proceeds of which are used to purchase Capital Stock of the Company, in an aggregate amount not in excess of $10.0 million at any one time outstanding; (6) the declaration and payment by the Company of a dividend consisting of Qualified Trust Preferred Stock with a fair market value that is not greater than is necessary in order to preserve the Company's eligibility to elect Real Estate Investment Trust status with respect to its 1999 taxable year; (7) the repurchase, redemption or other acquisition or retirement for value of up to $130.0 million in liquidation preference of the Series B Preferred Stock if the Company would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 4.09 hereof; (8) repurchases of Equity Interests of the Company deemed to occur upon the exercise of stock options if such Equity Interests represent a portion of the exercise price thereof; (9) the declaration and payment of dividends on the Company's Series A Preferred Stock and Series B Preferred Stock in accordance with terms of the Series A Preferred Stock and Series B Preferred Stock as in effect on the Issue Date; (x10) the purchase or redemption of any Acquired Subordinated Indebtedness payment of the liquidation preference of and all accrued and unpaid interest on 100% of issued and outstanding shares of the Company's Series A Preferred Stock in accordance with the terms of the Series A Preferred Stock as in effect on the Issue Date and the notice of redemption to be given by CCA on the Issue Date; (11) the redemption pursuant to their terms of all MDP Notes or PMI Notes that remain outstanding on the applicable redemption date after the Company or any sends notice of its Restricted Subsidiariessuch redemption to the holders of such notes, by application of provided that (i) cash provided from operations in the ordinary course Company converts all MDP Notes and PMI Notes pursuant to their terms upon the proper request of business or a holder of such notes and (ii) the fair market value of the common stock received upon such conversion (measured as of the date the notice of redemption is given) is not less than one and one half times the proceeds such holder would receive pursuant to such redemption; (12) the repurchase, redemption or other acquisition or retirement for value of the shares of Series A Preferred Stock issued and outstanding on the Issue Date with the net proceeds from borrowings under the revolving portion issuance by a Qualified Trust of any Credit Facility (so long as within 30 days prior to such purchase or redemption, a corresponding amount of borrowings under the revolving portion of such Credit Facility was repaid from cash provided from operations in the ordinary course of business); provided, in any such case, that the Company is able to incur an additional $1.00 of Indebtedness pursuant to Section 5.5(a) hereof after giving effect to such purchase or redemption; provided, further, that this clause (x) shall not permit the application of any proceeds from any other borrowings under any Credit Facility to effect any such purchase or redemptionQualified Trust Preferred Stock; and (xi13) so long as no Default has occurred and is continuing or would be caused thereby, other Restricted Payments not otherwise permitted in an aggregate amount not to exceed $5.0 million since the Issue Date25.0 million. The amount of all Restricted Payments (other than cash) shall be the Fair Market Value fair market value on the date of such the Restricted Payment of the asset(s) or securities proposed to be paid, transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to such the Restricted Payment. The Fair Market Value fair market value of any cash Restricted Payment shall assets or securities that are required to be its face amount, and the Fair Market Value of any non-cash Restricted Payment exceeding $5.0 million valued by this Section 4.07 shall be determined conclusively by two senior officers the Board of the Company acting in good faith Directors whose conclusions resolution with respect thereto shall be set forth in an Officers’ Certificate delivered to the Holders; providedTrustee. The Board of Directors' determination must be based upon an opinion or appraisal issued by an accounting, however, that appraisal or investment banking firm of national standing if the Fair Market Value of fair market value exceeds $15.0 million. Except with respect to any non-cash Restricted Payment exceeds $10.0 million, such Fair Market Value shall be determined conclusively by the Board of Directors permitted pursuant to clauses (1)-(13) of the Company and set forth immediately preceding paragraph, not later than 10 days following the end of the fiscal quarter in a board resolution, and a certified copy of which such board resolution shall be delivered to the Holders. For purposes of determining compliance with this Section 5.5, in the event that a Restricted Payment meets the criteria of more than one of the exceptions described in (i) through (xi) above or is entitled to be made pursuant to Section 5.5(a) hereofwas made, the Company shall, in its sole discretion, classify shall deliver to the Trustee an Officers' Certificate stating that such Restricted Payment, or later classify, reclassify or re-divide all or a portion of such Restricted Payment, in any manner that complies with Payment is permitted and setting forth the basis upon which the calculations required by this Section 5.54.07 were computed, together with a copy of any fairness opinion or appraisal required by this Indenture.

Restricted Payments. (a) The Company will Ventas, Inc. 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 of the Company’s Ventas, Inc.'s or any of its Restricted Subsidiaries’ ' Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company Ventas, Inc. or any of its Restricted Subsidiaries) or to the direct or indirect holders of the Company’s Ventas, Inc.'s or any of its Restricted Subsidiaries’ ' Equity Interests in their capacity as such (other than dividends or distributions payable (a) in Equity Interests (other than Disqualified Stock) of the Company and other than dividends Ventas, Inc. or distributions payable (b) to the Company Ventas, Inc. or a any of its Restricted Subsidiary of the CompanySubsidiaries); (ii2) purchase, redeem or otherwise acquire or retire for value (including including, without limitation, in connection with any merger or consolidation involving the CompanyPartnership) any Equity Interests of (a) the Company Partnership or any direct or indirect parent of the CompanyPartnership or (b) any Restricted Subsidiary, including a Permitted Joint Venture (in either case other than Equity Interests owned by Ventas, Inc. or any of its Restricted Subsidiaries); (iii3) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Subordinated IndebtednessDebt, except a payment of interest or principal at the Stated Maturity stated maturity thereof; or (iv4) make any Restricted Investment (all such payments and other actions set forth in these clauses (i1) through (iv4) above being collectively referred to as “"Restricted Payments”"), unless, at the time of and after giving effect to such Restricted Payment: (1) no Default shall have occurred and be continuing; (2) Ventas, Inc. and its Restricted Subsidiaries could incur at least $1.00 of Debt (other than Permitted Debt) under the terms of the Indenture; and (3) the aggregate sum of all Restricted Payments made after the date hereof, excluding Restricted Payments made pursuant to the following paragraph, shall not exceed the sum of: (A) 95% of our aggregate cumulative Funds from Operations accrued on a cumulative basis from the date of the beginning of the fiscal quarter which includes the date of the Indenture; (B) the aggregate proceeds or values received after the date of the Indenture from the issuance or sale of Ventas, Inc.'s or the Partnership's Equity Interests (other than Disqualified Stock and Equity Interests sold to a Subsidiary of Ventas, Inc.), net of underwriting discounts, commissions, legal fees and similar offering expenses; (C) any dividends or other distributions received by Ventas, Inc. or any of its Restricted Subsidiaries after the date of the Indenture from an Unrestricted Subsidiary of Ventas, Inc., to the extent that such dividends were not otherwise included in Earnings From Operations of Ventas, Inc. for such period, plus (D) to the extent that any Unrestricted Subsidiary of Ventas, Inc. is redesignated as a Restricted Subsidiary after the date of the Indenture, the lesser of (i) the Fair Market Value of Ventas, Inc.'s Investment in such Subsidiary as of the date of such redesignation or (ii) such Fair Market Value as of the date on which such Subsidiary was originally designated as an Unrestricted Subsidiary. (b) Notwithstanding the foregoing, the limitations on Restricted Payments described in Section 4.07(a) shall not apply to the following: (1) any distribution or other action which is necessary to maintain Ventas Inc.'s status as a REIT under the Code, if the aggregate principal amount of outstanding Debt of Ventas, Inc. and its Restricted Subsidiaries on a consolidated basis determined in accordance with GAAP is less than 60% of Adjusted Total Assets; (2) any distribution payable in Ventas, Inc.'s Equity Interests (other than Disqualified Stock); (3) so long as the Partnership is a partnership and no Default or Event of Default has occurred and is continuing or would occur as a consequence of such Restricted Payment; (ii) under the Company wouldIndenture, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning distributions to partners of the applicable four-quarter periodPartnership in an amount, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 5.7 hereof; and (iii) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries since the Issue Date (excluding Restricted Payments permitted by clauses (ii), (iii), (iv), (v), (vi), (vii), (viii) and (xi) of paragraph (b) of this Section 5.5), is less than the sum, without duplication, of: (1) 50% of the Consolidated Net Income of the Company for the period (taken as one accounting period) from the beginning of the fiscal quarter during which the Issue Date occurs to the end of the Company’s most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit); plus (2) 100% of (A)(i) the aggregate net cash proceeds and (ii) the Fair Market Value of (x) marketable securities (other than marketable securities of the Company), (y) Capital Stock of a Person (other than the Company or an Affiliate of the Company) engaged in a Permitted Business and (z) other assets used in any Permitted Business, in the case of clauses (i) and (ii), received by the Company since the Issue Date as a contribution to its common equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified Stock) or from the issue or sale of convertible or exchangeable Disqualified Stock or convertible or exchangeable debt securities of the Company that have been converted into or exchanged for such Equity Interests (other than Equity Interests (or Disqualified Stock or debt securities) sold to a Subsidiary of the Company), (B) the amount by which Indebtedness of the Company or any Restricted Subsidiary is reduced on the Company’s consolidated balance sheet upon the conversion or exchange after the Issue Date of any such Indebtedness into or for Equity Interests (other than Disqualified Stock) of the Company, and (C) the aggregate net cash proceeds, if any, received by the Company or any of its Restricted Subsidiaries upon any conversion or exchange described in clause (1) or (2) above; plus (3) with respect to Restricted Investments made by the Company and its Restricted Subsidiaries after the Issue Date, an amount equal to the sum of (A) the net reduction in such Restricted Investments in any Person resulting from (i) repayments of loans or advances, or other transfers of assets, in each case to the Company or any Restricted Subsidiary, (ii) other repurchases, repayments or redemptions of such Restricted Investments, (iii) the sale of any such Restricted Investment or (iv) the release of any Guarantee (except to the extent any amounts are paid under such Guarantee) plus (B) all amounts representing the return of capital (excluding dividends and distributions) to the Company or any Restricted Subsidiary in respect of such Restricted Investment plus (C) with respect to any Unrestricted Subsidiary that period after April 1, 2002, not to exceed the Board of Directors of the Company redesignates as a Restricted Subsidiary, the Fair Market Value of the Investment in Tax Amount for such Subsidiary held by the Company or any of its Restricted Subsidiaries at the time of such redesignation. (b) The provisions of Section 5.5(a) hereof will not prohibit: (i) the payment of any dividend or the consummation of any irrevocable redemption within 60 days after the date of declaration of the dividend or giving of the redemption notice, as the case may be, if at the date of declaration or notice, the dividend or redemption payment would have complied with the provisions of this Agreement and the Notesperiod; (ii4) the making redemption, repurchase or other acquisition or retirement of any Restricted Payment Equity Interests in exchange for, or out of the net cash proceeds of the a substantially concurrent issue and sale of, Capital Stock to any person (other than to a Subsidiary of the Company) ofVentas, Equity Interests of the Company (other than Disqualified Stock) or from the substantially concurrent contribution (other than by a Subsidiary of the Company) of capital to the Company in respect of its Equity Interests (other than Disqualified StockInc.); provided provided, however, that the amount of any such net cash proceeds that are utilized for any such Restricted Payment will be excluded from clause (iii)(2) of Section 5.5(a) hereof4.07(a)(3)(B); (iii5) the repurchase, any redemption, defeasance or other acquisition or retirement for value of Subordinated Indebtedness (including the payment of any required premium and any fees and expenses incurred in connection with such repurchase, redemption, defeasance or other acquisition) with the net cash proceeds from a substantially concurrent incurrence of Permitted Refinancing Indebtedness; provided that the amount of any such net cash proceeds that are utilized for any such Restricted Payment will be excluded from clause (iii)(2) of Section 5.5(a) hereof; (iv) the payment of any dividend (or, in the case of any partnership or limited liability company, any similar distribution) by a Restricted Subsidiary of the Company to the holders of the Equity Interests (other than Disqualified Stock) of such Restricted Subsidiary; provided that such dividend or similar distribution is paid to all holders of such Equity Interests on a pro rata basis based on their respective holdings of such Equity Interests; (v) the payment of any dividend on the EB-5 Preferred Stock; (vi) the repurchase, redemption repurchase or other acquisition or retirement of Equity Interests Subordinated Debt in exchange for, or out of the net cash proceeds of (a) a substantially concurrent issue and sale of, Capital Stock to any person (other than to a Restricted Subsidiary of Ventas, Inc.); provided, however, that any such net cash proceeds are excluded from Section 4.07(b)(4) and not used under Section 4.07(a)(3)(B) or (b) Permitted Refinancing Debt; (6) repurchases of Capital Stock deemed to occur upon the exercise or exchange of stock options, warrants or other similar rights to the extent options if such Equity Interests represent Capital Stock represents a portion of the exercise price thereof and repurchases of Capital Stock deemed to occur upon the withholding of a portion of the Capital Stock granted or exchange price awarded to an employee to pay for the taxes payable by such employee upon such grant or award; (7) pro rata dividends and other distributions on the Capital Stock of those stock optionsany Restricted Subsidiary by such Restricted Subsidiary to a Person other than Ventas, and Inc. or any of its Restricted Subsidiaries; (8) the repurchaseredemption, redemption repurchase or other acquisition or retirement of Equity Interests made in lieu of withholding taxes resulting from the exercise or exchange of stock options, warrants or other similar rights; (vii) so long as no Default has occurred and is continuing or would be caused thereby, the declaration and payment of regularly scheduled or accrued dividends to holders of any class or series of Disqualified Capital Stock of the Company Ventas, Inc. or any Restricted Subsidiary from any director, officer or employee of the Company or any class or series of preferred stock of a Restricted Subsidiary of the CompanyVentas, in each case issued on or after the Issue Date in accordance with the Fixed Charge Coverage Ratio test described in Section 5.7 hereof; (viii) payments to fund the purchase by the Company of fractional shares arising out of stock dividends, splits or combination or business combinations; (ix) the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company Inc. or any Restricted Subsidiary Subsidiary, or from such person's estate, (a) pursuant to any agreement with such director, officer or employee or (b) upon the death or termination of the Company held by any directorship or employment of the Company’s such person, in an aggregate amount under this clause (or any of its Restricted Subsidiaries’) current or former directors or employees; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may 8) not to exceed the Fair Market Value thereof and furthermore may not exceed, $1.5 million in any twelve-month period since the Issue Date, $0.5 million (with unused amounts (with respect to the $0.5 million limit referred to above) in any 12-month period after such date being permitted to be carried over into succeeding 12-month periods); provided, further, that the amounts in any such 12-month period may be increased by an amount not to exceed (1) the cash proceeds received by the Company or any of its Restricted Subsidiaries from the sale of the Company’s Equity Interests (other than Disqualified Stock) to any such directors or employees that occurs after the Issue Date (provided that the amount of such cash proceeds utilized for any such repurchase, retirement or other acquisition or retirement will not increase the amount available for Restricted Payments under clause (iii) of the immediately preceding paragraph and to the extent such proceeds have not otherwise been applied to the payment of Restricted Payments) plus (2) the cash proceeds of key man life insurance policies received by the Company and its Restricted Subsidiaries after the Issue Dateperiod; (x9) the purchase forgiveness of loans to current or redemption former officers or directors of any Acquired Subordinated Indebtedness of the Company or any of its Restricted SubsidiariesVentas, by application of (i) cash provided from operations in the ordinary course of business or (ii) proceeds from borrowings under the revolving portion of any Credit Facility (so long as within 30 days prior to such purchase or redemption, a corresponding amount of borrowings under the revolving portion of such Credit Facility was repaid from cash provided from operations in the ordinary course of business); provided, in any such case, that the Company is able to incur an additional $1.00 of Indebtedness pursuant to Section 5.5(a) hereof after giving effect to such purchase or redemption; provided, further, that this clause (x) shall not permit the application of any proceeds from any other borrowings under any Credit Facility to effect any such purchase or redemption; and (xi) so long as no Default has occurred and is continuing or would be caused thereby, other Restricted Payments Inc. in an aggregate principal amount not to exceed $5.0 million since the Issue Date. The amount of all Restricted Payments (other than cash) shall be the Fair Market Value on the date of such Restricted Payment the Indenture of the asset(s) or securities proposed up to be paid, transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to such Restricted Payment. The Fair Market Value of any cash Restricted Payment shall be its face amount, and the Fair Market Value of any non-cash Restricted Payment exceeding $5.0 million shall be determined conclusively by two senior officers of the Company acting in good faith whose conclusions with respect thereto shall be set forth in an Officers’ Certificate delivered to the Holders; provided, however, that if the Fair Market Value of any non-cash Restricted Payment exceeds $10.0 million, such Fair Market Value shall be determined conclusively by the Board of Directors of the Company and set forth in a board resolution, and a certified copy of such board resolution shall be delivered to the Holders. For purposes of determining compliance with this Section 5.5, in the event that a Restricted Payment meets the criteria of more than one of the exceptions described in (i) through (xi) above or is entitled to be made pursuant to Section 5.5(a) hereof, the Company shall, in its sole discretion, classify such Restricted Payment, or later classify, reclassify or re-divide all or a portion of such Restricted Payment, in any manner that complies with this Section 5.5.; and

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 in connection with any merger or consolidation involving the Company or any of its Restricted Subsidiaries) 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 and other than dividends or distributions payable to the Company or a Restricted Subsidiary of the Company); (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 any direct or indirect parent of the CompanyCompany (other than any such Equity Interests owned by the Company or any of its Restricted Subsidiaries); (iii3) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Subordinated IndebtednessIndebtedness that is subordinated to the Notes, except a payment of interest or principal at the Stated Maturity thereofMaturity; or (iv4) make any Restricted Investment Investment, (all such payments and other actions set forth in these clauses (i1) through (iv4) above being collectively referred to as “''Restricted Payments”''), unless, at the time of and after giving effect to such Restricted Payment: (i1) no Default or Event of Default has occurred and is continuing or would occur as a consequence of such the Restricted Payment;; and (ii2) the Company would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, would have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Debt to Adjusted Consolidated Cash Flow Ratio test set forth in the first paragraph of Section 5.7 4.09 hereof; provided that the Company and its Restricted Subsidiaries shall not be required to comply with this clause (2) in order to make any Restricted Investment; and (iii3) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries since after the Issue Date date hereof (excluding Restricted Payments permitted by clauses (ii2), (iii), (iv), (v), (vi), (vii), (viii3) and (xi4) of the paragraph (b) of this Section 5.5exceptions below), is less than the sum, without duplication, of: (1a) 50100% of the Consolidated Net Income Cash Flow of the Company for the period (taken as one accounting period) from the beginning of the fiscal quarter during which the Issue Date occurs this Indenture is executed to the end of the Company’s 's most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such the Consolidated Net Income Cash Flow for such period is a deficit, less 100% of such the deficit), less 1.75 times the Consolidated Interest Expense of the Company since the beginning of the fiscal quarter during which this Indenture is executed; plus (2b) 100% of (A)(i) the aggregate net cash proceeds and (ii) the Fair Market Value of (x) marketable securities (other than marketable securities of the Company), (y) Capital Stock of a Person (other than the Company or an Affiliate of the Company) engaged in a Permitted Business and (z) other assets used in any Permitted Business, in the case of clauses (i) and (ii), received by the Company since the Issue Date beginning of the fiscal quarter during which this Indenture is executed as a contribution to its common equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified StockStock and except to the extent such net cash proceeds are used to incur new Indebtedness outstanding pursuant to clause (11) of the second paragraph of Section 4.09 hereof) or from the issue or sale of convertible or exchangeable Disqualified Stock or convertible or exchangeable debt securities of the Company that have been converted into or exchanged for such Equity Interests (other than Equity Interests (or Disqualified Stock or convertible debt securities) sold to a Subsidiary of the CompanyCompany and other than Disqualified Stock or convertible debt securities that have been converted into Disqualified Stock); plus (c) to the extent that any Restricted Investment that was made after the date hereof is sold for cash or otherwise liquidated or repaid for cash, the lesser of: (A) the cash return of capital with respect to the Restricted Investment (less the cost of disposition, if any), and (B) the initial amount by which Indebtedness of the Company or any Restricted Subsidiary is reduced on the Company’s consolidated balance sheet upon the conversion or exchange after the Issue Date of any such Indebtedness into or for Equity Interests (other than Disqualified Stock) of the Company, and (C) the aggregate net cash proceeds, if any, received by the Company or any of its Restricted Subsidiaries upon any conversion or exchange described in clause (1) or (2) aboveInvestment; plus (3d) with respect to Restricted Investments made by the extent that any Unrestricted Subsidiary of the Company and all of its Subsidiaries are designated as Restricted Subsidiaries after the Issue Datedate hereof, an amount equal to the sum of lesser of: (A) the net reduction in such Restricted Investments in any Person resulting from (i) repayments of loans or advances, or other transfers of assets, in each case to the Company or any Restricted Subsidiary, (ii) other repurchases, repayments or redemptions of such Restricted Investments, (iii) the sale of any such Restricted Investment or (iv) the release of any Guarantee (except to the extent any amounts are paid under such Guarantee) plus (B) all amounts representing the return of capital (excluding dividends and distributions) to the Company or any Restricted Subsidiary in respect of such Restricted Investment plus (C) with respect to any Unrestricted Subsidiary that the Board of Directors of the Company redesignates as a Restricted Subsidiary, the Fair Market Value of the Investment in such Subsidiary held by the Company or any of its Restricted Subsidiaries at the time of such redesignation. (b) The provisions of Section 5.5(a) hereof will not prohibit: (i) the payment of any dividend or the consummation of any irrevocable redemption within 60 days after the date of declaration of the dividend or giving of the redemption notice, as the case may be, if at the date of declaration or notice, the dividend or redemption payment would have complied with the provisions of this Agreement and the Notes; (ii) the making of any Restricted Payment in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Subsidiary fair market value of the Company) of, Equity Interests 's Investments in such Subsidiaries as of the Company (other than Disqualified Stock) or from the substantially concurrent contribution (other than by a Subsidiary of the Company) of capital to the Company in respect of its Equity Interests (other than Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such Restricted Payment will be excluded from clause (iii)(2) of Section 5.5(a) hereof; (iii) the repurchase, redemption, defeasance or other acquisition or retirement for value of Subordinated Indebtedness (including the payment of any required premium and any fees and expenses incurred in connection with such repurchase, redemption, defeasance or other acquisition) with the net cash proceeds from a substantially concurrent incurrence of Permitted Refinancing Indebtedness; provided that the amount of any such net cash proceeds that are utilized for any such Restricted Payment will be excluded from clause (iii)(2) of Section 5.5(a) hereof; (iv) the payment of any dividend (or, in the case of any partnership or limited liability company, any similar distribution) by a Restricted Subsidiary of the Company to the holders of the Equity Interests (other than Disqualified Stock) of such Restricted Subsidiary; provided that such dividend or similar distribution is paid to all holders of such Equity Interests on a pro rata basis based on their respective holdings of such Equity Interests; (v) the payment of any dividend on the EB-5 Preferred Stock; (vi) the repurchase, redemption or other acquisition or retirement of Equity Interests deemed to occur upon the exercise or exchange of stock options, warrants or other similar rights to the extent such Equity Interests represent a portion of the exercise or exchange price of those stock options, and the repurchase, redemption or other acquisition or retirement of Equity Interests made in lieu of withholding taxes resulting from the exercise or exchange of stock options, warrants or other similar rights; (vii) so long as no Default has occurred and is continuing or would be caused thereby, the declaration and payment of regularly scheduled or accrued dividends to holders of any class or series of Disqualified Stock of the Company or any Restricted Subsidiary of the Company or any class or series of preferred stock of a Restricted Subsidiary of the Company, in each case issued on or after the Issue Date in accordance with the Fixed Charge Coverage Ratio test described in Section 5.7 hereof; (viii) payments to fund the purchase by the Company of fractional shares arising out of stock dividends, splits or combination or business combinations; (ix) the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company held by any of the Company’s (or any of its Restricted Subsidiaries’) current or former directors or employees; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may not exceed the Fair Market Value thereof and furthermore may not exceed, in any twelve-month period since the Issue Date, $0.5 million (with unused amounts (with respect to the $0.5 million limit referred to above) in any 12-month period after such date being permitted to be carried over into succeeding 12-month periods); provided, further, that the amounts in any such 12-month period may be increased by an amount not to exceed (1) the cash proceeds received by the Company or any of its Restricted Subsidiaries from the sale of the Company’s Equity Interests (other than Disqualified Stock) to any such directors or employees that occurs after the Issue Date (provided that the amount of such cash proceeds utilized for any such repurchase, retirement or other acquisition or retirement will not increase the amount available for Restricted Payments under clause (iii) of the immediately preceding paragraph and to the extent such proceeds have not otherwise been applied to the payment of Restricted Payments) plus (2) the cash proceeds of key man life insurance policies received by the Company and its Restricted Subsidiaries after the Issue Date; (x) the purchase or redemption of any Acquired Subordinated Indebtedness of the Company or any of its Restricted Subsidiaries, by application of (i) cash provided from operations in the ordinary course of business or (ii) proceeds from borrowings under the revolving portion of any Credit Facility (so long as within 30 days prior to such purchase or redemption, a corresponding amount of borrowings under the revolving portion of such Credit Facility was repaid from cash provided from operations in the ordinary course of business); provided, in any such case, that the Company is able to incur an additional $1.00 of Indebtedness pursuant to Section 5.5(a) hereof after giving effect to such purchase or redemption; provided, further, that this clause (x) shall not permit the application of any proceeds from any other borrowings under any Credit Facility to effect any such purchase or redemption; and (xi) so long as no Default has occurred and is continuing or would be caused thereby, other Restricted Payments in an aggregate amount not to exceed $5.0 million since the Issue Date. The amount of all Restricted Payments (other than cash) shall be the Fair Market Value on the date of such Restricted Payment of designation; or (B) the asset(s) or securities proposed to be paid, transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to such Restricted Payment. The Fair Market Value of any cash Restricted Payment shall be its face amount, and the Fair Market Value of any non-cash Restricted Payment exceeding $5.0 million shall be determined conclusively by two senior officers of the Company acting in good faith whose conclusions with respect thereto shall be set forth in an Officers’ Certificate delivered to the Holders; provided, however, that if the Fair Market Value of any non-cash Restricted Payment exceeds $10.0 million, such Fair Market Value shall be determined conclusively by the Board of Directors of the Company and set forth in a board resolution, and a certified copy of such board resolution shall be delivered to the Holders. For purposes of determining compliance with this Section 5.5, in the event that a Restricted Payment meets the criteria of more than one of the exceptions described in (i) through (xi) above or is entitled to be made pursuant to Section 5.5(a) hereof, the Company shall, in its sole discretion, classify such Restricted Payment, or later classify, reclassify or re-divide all or a portion of such Restricted Payment, in any manner that complies with this Section 5.5.sum of:

Restricted Payments. (a) The Company will not, and will not permit any of its Restricted Subsidiaries toDeclare or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, or issue or sell any Equity Interests or accept any capital contributions, except that: (a) each Restricted Subsidiary may make Restricted Payments to any Loan Party and any other Person that owns a direct Equity Interest in such Restricted Subsidiary, either (i) declare or pay any dividend or make any other payment or distribution on account ratably according to their respective holdings of the Company’s type of Equity Interest in respect of which such Restricted Payment is being made or any (ii) on a non-pro rata basis either (A) where required by Organization Documents or agreements existing as of its Restricted Subsidiaries’ Equity Interests the Closing Date or (including, without limitation, any payment in connection with any merger or consolidation involving B) where the aggregate amount of all distributions to Persons other than the Company or a Restricted Subsidiary that are in excess of the pro rata share of such Restricted Payments that would otherwise be owing to such Persons does not exceed $25,000,000 in the aggregate during the term of the Facilities, so long as no Default shall have occurred and be continuing at the time of any of its Restricted Subsidiariesaction described in this clause (a) or to would result therefrom; (b) the direct Company and each Restricted Subsidiary may declare and make dividend payments 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 Stock) of such Person, so long as no Default shall have occurred and be continuing at the time of any action described in this clause (b) or would result therefrom; (c) the Company and other than dividends or distributions payable to the Company or a each Restricted Subsidiary of the Company); (ii) may purchase, redeem or otherwise acquire or retire for value (including without limitation, in connection with any merger or consolidation involving the Company) any its Equity Interests of the Company or any direct or indirect parent of the Company; (iii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Subordinated Indebtedness, except a payment of interest or principal at the Stated Maturity thereof; or (iv) make any Restricted Investment (all such payments and other actions set forth in these 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: (i) no Default or Event of Default has occurred and is continuing or would occur as a consequence of such Restricted Payment; (ii) the Company would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 5.7 hereof; and (iii) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries since the Issue Date (excluding Restricted Payments permitted by clauses (ii), (iii), (iv), (v), (vi), (vii), (viii) and (xi) of paragraph (b) of this Section 5.5), is less than the sum, without duplication, of: (1) 50% of the Consolidated Net Income of the Company for the period (taken as one accounting period) from the beginning of the fiscal quarter during which the Issue Date occurs to the end of the Company’s most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit); plus (2) 100% of (A)(i) the aggregate net cash proceeds and (ii) the Fair Market Value of (x) marketable securities (other than marketable securities of the Company), (y) Capital Stock of a Person (other than the Company or an Affiliate of the Company) engaged in a Permitted Business and (z) other assets used in any Permitted Business, in the case of clauses (i) and (ii), received by the Company since the Issue Date as a contribution to its common equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified Stock) or from the issue or sale of convertible or exchangeable Disqualified Stock or convertible or exchangeable debt securities of the Company that have been converted into or exchanged for such Equity Interests (other than Equity Interests (or Disqualified Stock or debt securities) sold to a Subsidiary of the Company), (B) the amount by which Indebtedness of the Company or any Restricted Subsidiary is reduced on the Company’s consolidated balance sheet upon the conversion or exchange after the Issue Date of any such Indebtedness into or for Equity Interests (other than Disqualified Stock) of the Company, and (C) the aggregate net cash proceeds, if any, received by the Company or any of its Restricted Subsidiaries upon any conversion or exchange described in clause (1) or (2) above; plus (3) with respect to Restricted Investments made by the Company and its Restricted Subsidiaries after the Issue Date, an amount equal to the sum of (A) the net reduction in such Restricted Investments in any Person resulting from (i) repayments of loans or advances, or other transfers of assets, in each case to the Company or any Restricted Subsidiary, (ii) other repurchases, repayments or redemptions of such Restricted Investments, (iii) the sale of any such Restricted Investment or (iv) the release of any Guarantee (except to the extent any amounts are paid under such Guarantee) plus (B) all amounts representing the return of capital (excluding dividends and distributions) to the Company or any Restricted Subsidiary in respect of such Restricted Investment plus (C) with respect to any Unrestricted Subsidiary that the Board of Directors of the Company redesignates as a Restricted Subsidiary, the Fair Market Value of the Investment in such Subsidiary held by the Company or any of its Restricted Subsidiaries at the time of such redesignation. (b) The provisions of Section 5.5(a) hereof will not prohibit: (i) the payment of any dividend or the consummation of any irrevocable redemption within 60 days after the date of declaration of the dividend or giving of the redemption notice, as the case may be, if at the date of declaration or notice, the dividend or redemption payment would have complied with the provisions of this Agreement and the Notes; (ii) the making of any Restricted Payment in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Subsidiary of the Company) of, Equity Interests of the Company (other than Disqualified Stock) or from the substantially concurrent contribution (other than by a Subsidiary issue of the Company) of capital to the Company in respect of its new Equity Interests (other than Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such Restricted Payment will be excluded from clause (iii)(2) of Section 5.5(a) hereof; (iii) the repurchase, redemption, defeasance or other acquisition or retirement for value of Subordinated Indebtedness (including the payment of any required premium and any fees and expenses incurred in connection with such repurchase, redemption, defeasance or other acquisition) with the net cash proceeds from a substantially concurrent incurrence of Permitted Refinancing Indebtedness; provided that the amount of any such net cash proceeds that are utilized for any such Restricted Payment will be excluded from clause (iii)(2) of Section 5.5(a) hereof; (iv) the payment of any dividend (or, in the case of any partnership or limited liability company, any similar distribution) by a Restricted Subsidiary of the Company to the holders of the Equity Interests (other than Disqualified Stock) of such Restricted Subsidiary; provided that such dividend or similar distribution is paid to all holders of such Equity Interests on a pro rata basis based on their respective holdings of such Equity Interests; (v) the payment of any dividend on the EB-5 Preferred Stock; (vi) the repurchase, redemption or other acquisition or retirement of Equity Interests deemed to occur upon the exercise or exchange of stock options, warrants or other similar rights to the extent such Equity Interests represent a portion of the exercise or exchange price of those stock options, and the repurchase, redemption or other acquisition or retirement of Equity Interests made in lieu of withholding taxes resulting from the exercise or exchange of stock options, warrants or other similar rights; (vii) so long as no Default has shall have occurred and is be continuing at the time of any action described in this clause (c) or would be caused thereby, the declaration and payment of regularly scheduled or accrued dividends to holders of any class or series of Disqualified Stock of the Company or any Restricted Subsidiary of the Company or any class or series of preferred stock of a Restricted Subsidiary of the Company, in each case issued on or after the Issue Date in accordance with the Fixed Charge Coverage Ratio test described in Section 5.7 hereofresult therefrom; (viiid) payments each Restricted Subsidiary may declare and make Restricted Payments to fund the purchase by the Company of fractional shares arising out of stock dividends, splits or combination or business combinations; (ix) the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of so that the Company may pay any Taxes which are due and payable by or any Restricted Subsidiary of the Company held by any of the Company’s (or any of its Restricted Subsidiaries’) current or former directors or employees; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may not exceed the Fair Market Value thereof and furthermore may not exceed, in any twelve-month period since the Issue Date, $0.5 million (with unused amounts (with respect to the $0.5 million limit referred to aboveRestricted Subsidiaries; (e) in any 12-month period after such date being permitted to be carried over into succeeding 12-month periods); provided, further, that the amounts in any such 12-month period may be increased by an amount not to exceed (1) the cash proceeds received by the Company or any of its Restricted Subsidiaries from the sale of the Company’s Equity Interests (other than Disqualified Stock) to any such directors or employees that occurs after the Issue Date (provided that the amount of such cash proceeds utilized for any such repurchase, retirement or other acquisition or retirement will not increase the amount available for Restricted Payments under clause (iii) of the immediately preceding paragraph and to the extent such proceeds have not otherwise been applied to the payment of Restricted Payments) plus (2) the cash proceeds of key man life insurance policies received by the Company and its Restricted Subsidiaries may make other Restricted Payments so long as (i) the aggregate amount of Restricted Payments made during the term of this Agreement pursuant to this clause (e) is not in excess of the Cumulative Available Amount that is Not Otherwise Applied, (ii) after giving pro forma effect thereto (including any incurrence and/or repayment of Indebtedness in connection therewith), the Issue DateConsolidated Leverage Ratio is at least 0.50 less than the then applicable Consolidated Leverage Ratio pursuant to Section 7.11(b) as of the last day of the most recent fiscal quarter or year for which financial statements have been delivered pursuant to Section 6.01 (or, prior to the first delivery thereof, the financial statements described in Section 5.05(b)), (iii) both immediately before and after giving pro forma effect thereto, no Default shall have occurred and be continuing or would result therefrom, and (iv) no later than three Business Days (or such shorter period as agreed upon by the Administrative Agent) prior to such Restricted Payment, the Company shall have delivered to the Administrative Agent a certificate setting forth the calculations demonstrating, in reasonable detail, compliance with the foregoing clause (ii); (xf) the purchase or redemption of any Acquired Subordinated Indebtedness of the Company or any of and its Restricted Subsidiaries, by application of (i) cash provided from operations in the ordinary course of business or (ii) proceeds from borrowings under the revolving portion of any Credit Facility (so long as within 30 days prior to such purchase or redemption, a corresponding amount of borrowings under the revolving portion of such Credit Facility was repaid from cash provided from operations in the ordinary course of business); provided, in any such case, that the Company is able to incur an additional $1.00 of Indebtedness pursuant to Section 5.5(a) hereof after giving effect to such purchase or redemption; provided, further, that this clause (x) shall not permit the application of any proceeds from any Subsidiaries may make other borrowings under any Credit Facility to effect any such purchase or redemption; and (xi) Restricted Payments so long as no Default has shall have occurred and is be continuing at the time of any action described below or would be caused therebyresult therefrom and, other Restricted Payments after giving pro forma effect thereto (including any incurrence and/or repayment of Indebtedness in an aggregate amount not connection therewith), the Consolidated Leverage Ratio is less than or equal to exceed $5.0 million since the Issue Date. The amount of all Restricted Payments (other than cash) shall be the Fair Market Value on the date of such Restricted Payment 3.00 to 1.00 as of the asset(slast day of the most recent fiscal quarter or year for which financial statements have been delivered pursuant to Section 6.01 (or, prior to the first delivery thereof, the financial statements described in Section 5.05(b)); (g) or securities proposed a Restricted Subsidiary may issue Equity Interests to be paid, transferred or issued the extent constituting a Disposition permitted by Section 7.05; and (h) the Company or such Restricted Subsidiary, as the case may be, pursuant to such Restricted Payment. The Fair Market Value of any cash Restricted Payment shall be its face amount, and the Fair Market Value of any non-cash Restricted Payment exceeding $5.0 million shall be determined conclusively by two senior officers of the Company acting in good faith whose conclusions with respect thereto shall be set forth in an Officers’ Certificate delivered to the Holders; provided, however, that if the Fair Market Value of any non-cash Restricted Payment exceeds $10.0 million, such Fair Market Value shall be determined conclusively by the Board of Directors purchase Equity Interests of the Company and set forth in a board resolutionany warrants or other rights with respect to Equity Interests of the Company from its employees, officers and a certified copy of such board resolution shall be delivered directors by net exercise, pursuant to the Holders. For purposes terms of determining compliance with this Section 5.5any employee stock option, in the event that a Restricted Payment meets the criteria of more than one of the exceptions described in (i) through (xi) above restricted stock or is entitled to be made pursuant to Section 5.5(a) hereof, the Company shall, in its sole discretion, classify such Restricted Payment, or later classify, reclassify or re-divide all or a portion of such Restricted Payment, in any manner that complies with this Section 5.5incentive stock plan.

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 in connection with any merger or consolidation involving the Company or any of its Restricted Subsidiaries) 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 and other than dividends or distributions payable to the Company or a Guarantor or, in the case of a Restricted Subsidiary of that is not a Guarantor, to the CompanyCompany or any Restricted Subsidiary); (ii2) purchase, redeem or otherwise acquire or retire for value (including including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or any direct or indirect parent of the Company held by a Person other than the Company or a Restricted Subsidiary of the Company; (iii3) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value value, any Subordinated IndebtednessIndebtedness that is subordinated by its terms in right of payment to the Notes or the Subsidiary Guarantees, except a payment payments of interest or principal at the Stated Maturity thereof; or (iv4) make any Restricted Investment (all such payments and other actions set forth in these clauses (i1) through (iv4) above being collectively referred to as “"Restricted Payments”"), unless, at the time of and after giving effect to such Restricted Payment: (i5) no Default or Event of Default has occurred and is continuing or would occur as a consequence of such Restricted Payment; (ii6) the Company would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-four quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Consolidated Coverage Ratio test set forth in Section 5.7 hereof4.09(a); and (iii7) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries since after the Issue Date (excluding Restricted Payments permitted by clauses (ii2), (iii3), (iv4), (v5), (vi6), (vii7), (viii8), (9), (10), (11) (other than payments with respect to Equity Interests of the Company or any of its Restricted Subsidiaries), (12) and (xi13) of paragraph (b) of this Section 5.54.07(b)), is less than the sum, without duplication, of: (1A) 50% of the aggregate Consolidated Net Income of the Company (or, in the event such Consolidated Net Income shall be a deficit, minus 100% of such deficit) accrued for the period (beginning on the Issue Date and ending on the last day of the Company's most recent fiscal quarter for which financial information is available to the Company ending prior to the date of such proposed Restricted Payment, taken as one accounting period) from the beginning of the fiscal quarter during which the Issue Date occurs to the end of the Company’s most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit); plus (2B) 100% of (A)(i) the aggregate net cash proceeds and (ii) the Fair Market Value of (x) marketable securities (other than marketable securities of the Company), (y) Capital Stock of a Person (other than the Company or an Affiliate of the Company) engaged in a Permitted Business and (z) other assets used in any Permitted Business, in the case of clauses (i) and (ii), received by the Company since the Issue Date as a contribution to its common equity capital or (x) from the issue or sale of Equity Interests of the Company (other than Disqualified Stock) or from the issue or sale of convertible or exchangeable Disqualified Stock or convertible debt or exchangeable debt other securities of the Company that have been converted into or exchanged for such Equity Interests (other than (i) Equity Interests (or Disqualified Stock or convertible or exchangeable debt or other securities) sold to a Subsidiary of the CompanyCompany or any employee stock ownership plan or other trust established by the Company or any of its Subsidiaries for the benefit of its employees to the extent that the purchase by such plan or trust is financed by Indebtedness of such plan or trust owed to the Company or any of its Subsidiaries or Indebtedness Guaranteed by the Company or any of its Subsidiaries, and (ii) Disqualified Stock or convertible or exchangeable debt or other securities that have been converted into or exchanged for Disqualified Stock), and (By) as capital contributions from its shareholders, plus (C) to the extent that any Unrestricted Subsidiary is redesignated as a Restricted Subsidiary after the Issue Date, the fair market value of such Subsidiary, as determined by the Board of Directors, as of the date of such redesignation, plus (D) the sum of (i) the aggregate amount by which in cash returned to the Company or any of its Restricted Subsidiaries and (ii) the aggregate principal amount of Indebtedness of the Company or any of its Restricted Subsidiary is reduced on the Company’s consolidated balance sheet upon the conversion or exchange Subsidiaries cancelled, in each case with respect to Restricted Investments made after the Issue Date whether through interest payments, principal payments, dividends, or other distributions or the forgiveness or cancellation of any such Indebtedness into or for Equity Interests Indebtedness, plus (other than Disqualified Stock) of the Company, and (CE) the aggregate net cash proceeds, if any, proceeds received by the Company or any of its Restricted Subsidiaries upon from the disposition or sale (other than to a Restricted Subsidiary), or liquidation, retirement or redemption of all or any conversion or exchange described in clause (1) or (2) above; plus (3) with respect to portion of Restricted Investments made by the Company and its Restricted Subsidiaries after the Issue Date, an amount equal to the sum of plus (AF) the net reduction in such Restricted Investments in any Person Unrestricted Subsidiaries resulting from (i) payments of dividends, repayments of the principal of loans or advances, advances or other transfers of assets, in each case assets from Unrestricted Subsidiaries to the Company or any of its Restricted SubsidiarySubsidiaries, plus (iiG) other repurchases, repayments or redemptions of such Restricted Investments, (iii) in the sale of any such Restricted Investment or (iv) the release of any Guarantee (except to the extent any amounts are paid under such Guarantee) plus (B) all amounts representing the return of capital (excluding dividends and distributions) to the Company or any Restricted Subsidiary in respect of such Restricted Investment plus (C) with respect to any Unrestricted Subsidiary event that the Board of Directors of the Company redesignates as a Restricted Subsidiary, the Fair Market Value of the Investment in such Subsidiary held by the Company or any of its Restricted Subsidiaries at makes any Investment in a Person that, as a result of or in connection with such Restricted Investment, becomes a Restricted Subsidiary, an amount equal to such portion of the time Company's or any of its Restricted Subsidiaries' existing Investments in such redesignationPerson that was previously treated as a Restricted Payment. (b) The provisions of Section 5.5(a4.07(a) hereof will not prohibit: (i1) the payment of any dividend or the consummation of any irrevocable redemption within 60 days after the date of declaration of the dividend or giving of the redemption notice, as the case may bedividend, if at the date of declaration or notice, the dividend or redemption payment would have complied with the provisions of this Agreement and Indenture; provided, however, that any such dividend will be included in the Notescalculation of the amount of Restricted Payments (without duplication for declaration); (ii2) the making of any Restricted Payment Investment or the payment on or with respect to or, the redemption, repurchase, retirement, defeasance or other acquisition of any subordinated Indebtedness of the Company or any of its Restricted Subsidiaries or of any Equity Interests of the Company in exchange for, or out of the net cash proceeds of the substantially concurrent sale of, Equity Interests of the Company (other than (i) Disqualified Stock and (ii) Equity Interests issued or sold to a Restricted Subsidiary of the Company or to any employee stock ownership plan or other trust established by the Company or any of its Subsidiaries for the benefit of its employees to the extent that the purchase by such plan or trust is financed by Indebtedness of such plan or trust owed to the Company or any of its Subsidiaries or Indebtedness Guaranteed by the Company or any of its Subsidiaries) or out of the net cash proceeds of substantially concurrent capital contributions made to the Company; provided that the amount of any such net cash proceeds that are utilized for any such Restricted Investment redemption, repurchase, retirement, defeasance or other acquisition will be excluded from clause (7)(B) of Section 4.07(a); (3) the defeasance (whether legally or as to covenants only), redemption, repurchase or other acquisition of subordinated Indebtedness of the Company or any of its Restricted Subsidiaries or Disqualified Stock of the Company with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness; (4) the declaration and payment of any dividend by a Restricted Subsidiary of the Company to the holders of such Restricted Subsidiary's Equity Interests on a pro rata basis; (5) the retirement of any shares of Disqualified Stock of the Company by conversion into, or by exchange for, shares of Disqualified Stock of the Company, or out of the net cash proceeds of the substantially concurrent sale (other than to a Subsidiary of the Company) of, Equity Interests of the Company (other than Disqualified Stock) or from the substantially concurrent contribution (other than by a Restricted Subsidiary of the Company) of capital to other shares of Disqualified Stock of the Company in respect of its Equity Interests (other than Disqualified Stock)Company; provided that the amount Disqualified Stock of the Company that replaces the retired shares of Disqualified Stock of the Company shall not require the direct or indirect payment of any such net cash proceeds that are utilized for any such Restricted Payment will be excluded from clause (iii)(2) liquidation preference earlier in time than the final stated maturity of Section 5.5(a) hereofthe retired shares of Disqualified Stock of the Company; (iii6) payments required to be made or otherwise contemplated pursuant to the repurchase, redemption, defeasance or other acquisition or retirement for value Plan of Subordinated Indebtedness (including the payment of any required premium and any fees and expenses incurred in connection with such repurchase, redemption, defeasance or other acquisition) with the net cash proceeds from a substantially concurrent incurrence of Permitted Refinancing Indebtedness; provided that the amount of any such net cash proceeds that are utilized for any such Restricted Payment will be excluded from clause (iii)(2) of Section 5.5(a) hereofReorganization; (iv7) the payment of any dividend (or, in the case of any partnership or limited liability company, any similar distribution) by a Restricted Subsidiary of the Company payments required to be made pursuant to the holders of CPIH Reimbursement Agreement, the Equity Interests (other than Disqualified Stock) of such Restricted Subsidiary; provided that such dividend Corporate Services Reimbursement Agreement or similar distribution is paid to all holders of such Equity Interests on a pro rata basis based on their respective holdings of such Equity Intereststhe Tax Sharing Agreement; (v) 8) payments in respect of the payment limited partnership interests in Covanta Onondaga Limited Partnership and Covanta Huntington Limited Partnership pursuant to the limited partnership agreements of any dividend such entities as in effect on the EB-5 Preferred StockIssue Date and as amended, modified or extended on terms not materially less favorable to the Company and its Restricted Subsidiaries, taken as a whole; (vi9) the repurchase, redemption or other acquisition or retirement repurchases of Equity Interests deemed to occur upon the exercise or exchange of stock options, warrants or other similar rights to the extent options if such Equity Interests represent a portion of the exercise or exchange price of those stock options, and the repurchase, redemption or other acquisition or retirement of Equity Interests made in lieu of withholding taxes resulting from the exercise or exchange of stock options, warrants or other similar rightsthereof; (vii10) so long as no Default has occurred payments in satisfaction of earn-out and is continuing or deferred purchase price obligations pursuant to agreements relating to the acquisition of any Person which, following such acquisition, would be caused thereby, the declaration and payment of regularly scheduled or accrued dividends to holders of any class or series of Disqualified Stock of the Company or any Restricted Subsidiary of the Company or any class or series of preferred stock of a Restricted Subsidiary of the Company; (11) any Restricted Payments made pursuant to any employee benefit plan, arrangement or perquisite (including plans, arrangements or perquisites for the benefit of directors) or employment agreements or other compensation arrangements, in each case issued on or after as approved by the Issue Date Board of Directors in accordance with the Fixed Charge Coverage Ratio test described in Section 5.7 hereofits good faith judgment; (viii) payments to fund the purchase by the Company of fractional shares arising out of stock dividends, splits or combination or business combinations; (ix12) the repurchasedistribution, redemption as a dividend or other acquisition or retirement for value otherwise, of any Equity Interests of of, or Indebtedness owed to the Company or any a Restricted Subsidiary of the Company held by by, any Unrestricted Subsidiary of the Company’s ; (13) payments or distributions to dissenting stockholders pursuant to applicable law or pursuant to or in connection with a consolidation, merger or transfer of assets that complies with Section 5.01; (14) any of its Restricted Subsidiaries’) current or former directors or employees; provided that the aggregate price paid for all such repurchasedpurchase, redeemed, acquired or retired Equity Interests may not exceed the Fair Market Value thereof and furthermore may not exceed, in any twelve-month period since the Issue Date, $0.5 million (with unused amounts (with respect to the $0.5 million limit referred to above) in any 12-month period after such date being permitted to be carried over into succeeding 12-month periods); provided, further, that the amounts in any such 12-month period may be increased by an amount not to exceed (1) the cash proceeds received by the Company or any of its Restricted Subsidiaries from the sale of the Company’s Equity Interests (other than Disqualified Stock) to any such directors or employees that occurs after the Issue Date (provided that the amount of such cash proceeds utilized for any such repurchaseredemption, retirement or other acquisition or retirement will not increase the amount available for Restricted Payments under clause (iii) value of the immediately preceding paragraph and any subordinated Indebtedness pursuant to the extent such proceeds have not otherwise been applied to the payment of Restricted Payments) plus (2) the cash proceeds of key man life insurance policies received by the Company and its Restricted Subsidiaries after the Issue Date; (x) the purchase or redemption of any Acquired Subordinated Indebtedness of the Company or any of its Restricted Subsidiaries, by application of (i) cash provided from operations in the ordinary course of business or (ii) proceeds from borrowings under the revolving portion of any Credit Facility (so long as within 30 days prior to such purchase or redemption, a corresponding amount of borrowings under the revolving portion provisions of such Credit Facility was repaid from cash Indebtedness relating to a change of control or sale of assets; provided from operations in the ordinary course of business); provided, in any such case, that the Company is able shall have complied with any requirement to incur an additional $1.00 make a Change of Indebtedness pursuant to Section 5.5(a) hereof after giving effect to Control Offer or Asset Sale Offer, as the case may be, in connection with such purchase change of control or redemption; provided, further, that this clause (x) shall not permit the application sale of any proceeds from any other borrowings under any Credit Facility to effect any such purchase or redemptionassets; and (xi15) so long as no Default has occurred and is continuing or would be caused thereby, other Restricted Payments in an aggregate amount not to exceed $5.0 million since the Issue Date. 10.0 million. (c) The amount of all Restricted Payments (other than cash) shall be the Fair Market Value fair market value on the date of such the Restricted Payment of the asset(s) assets or securities proposed to be paid, transferred or issued by the Company or such any Restricted Subsidiary, as the case may be, pursuant to such the Restricted Payment. The Fair Market Value fair market value of any cash Restricted Payment assets or securities that are required to be valued by this covenant shall be its face amountdetermined, and the Fair Market Value of any non-cash Restricted Payment exceeding $5.0 million shall be determined conclusively by two senior officers of the Company acting in good faith whose conclusions with respect thereto shall be set forth in an Officers’ Certificate delivered to the Holders; providedfaith, however, that if the Fair Market Value of any non-cash Restricted Payment exceeds $10.0 million, such Fair Market Value shall be determined conclusively by the Board of Directors Directors. The Board of Directors' determination must be based upon an opinion or appraisal issued by an accounting, appraisal or investment banking firm of national standing if the fair market value exceeds $15.0 million and if the Restricted Payment is to be made to an Affiliate of the Company and set forth in a board resolution, and a certified copy of such board resolution shall be delivered or to the Holdersholders of or in respect of any Equity Interest. For purposes Not later than the date of determining compliance with this Section 5.5, in the event that a making any Restricted Payment meets the criteria of more than one of the exceptions described in (i) through (xi) above or is entitled to be made pursuant to Section 5.5(a) hereofhaving a fair market value exceeding $15.0 million, the Company shallshall deliver to the Trustee an Officer's Certificate stating that such Restricted Payment is permitted and setting forth the basis upon which the calculations required by this Section 4.07(c) were computed, together with a copy of the fairness opinion or appraisal required by this Indenture. In determining whether any Restricted Payment is permitted by the covenant described above, the Company may in its sole discretion, classify such Restricted Payment, or later classify, reclassify or re-divide discretion allocate all or a any portion of such Restricted PaymentPayment among the categories described in the immediately preceding paragraph or among such categories and the types of Restricted Payments described in the first paragraph under the "Restricted Payments" heading above; provided that at the time of such allocation, in any manner that complies with this Section 5.5all such Restricted Payments, or allocated portions thereof, would be permitted under the various provisions of the covenant described above.

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 of its Restricted Subsidiaries’ Subsidiary’s Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company or any of its Restricted SubsidiariesSubsidiary) or to the direct or indirect holders of the Company’s or any of its Restricted Subsidiaries’ Subsidiary’s Equity Interests in their capacity as such (other than dividends or distributions payable (A) in Equity Interests (other than Disqualified Stock) of the Company and other than dividends or distributions payable (B) to the Company or a Restricted Subsidiary of the Company); (ii) purchase, redeem or otherwise acquire or retire for value (including including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or any direct or indirect parent of the Company; (iii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Subordinated Indebtedness(x) unsecured Indebtedness or (y) Indebtedness that is expressly subordinated to the Notes or any Note Guarantee (including, for the avoidance of doubt, any Indebtedness that is secured by a Lien on the Collateral that is junior in priority to the Lien granted to the Secured Lien Collateral Trustee) (clauses (x) and (y) above collectively being referred to as “Specified Junior Debt”), except (A) a payment of interest or principal to the Company or any Restricted Subsidiary or (B) any payment made at the Stated Maturity thereofthereof (or any payment, purchase or other acquisition, in anticipation of satisfying a sinking fund obligation, principal installment or final maturity due within one year); or (iv) make any Restricted Investment (all such payments and other actions set forth in these 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: (i) no Default or Event of Default has occurred and is continuing or would occur as a consequence of such Restricted Payment; (ii) the Company would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 5.7 hereof; and (iii) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries since the Issue Date (excluding Restricted Payments permitted by clauses (ii), (iii), (iv), (v), (vi), (vii), (viii) and (xi) of paragraph (b) of this Section 5.5), is less than the sum, without duplication, of: (1) 50% of the Consolidated Net Income of the Company for the period (taken as one accounting period) from the beginning of the fiscal quarter during which the Issue Date occurs to the end of the Company’s most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit); plus (2) 100% of (A)(i) the aggregate net cash proceeds and (ii) the Fair Market Value of (x) marketable securities (other than marketable securities of the Company), (y) Capital Stock of a Person (other than the Company or an Affiliate of the Company) engaged in a Permitted Business and (z) other assets used in any Permitted Business, in the case of clauses (i) and (ii), received by the Company since the Issue Date as a contribution to its common equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified Stock) or from the issue or sale of convertible or exchangeable Disqualified Stock or convertible or exchangeable debt securities of the Company that have been converted into or exchanged for such Equity Interests (other than Equity Interests (or Disqualified Stock or debt securities) sold to a Subsidiary of the Company), (B) the amount by which Indebtedness of the Company or any Restricted Subsidiary is reduced on the Company’s consolidated balance sheet upon the conversion or exchange after the Issue Date of any such Indebtedness into or for Equity Interests (other than Disqualified Stock) of the Company, and (C) the aggregate net cash proceeds, if any, received by the Company or any of its Restricted Subsidiaries upon any conversion or exchange described in clause (1) or (2) above; plus (3) with respect to Restricted Investments made by the Company and its Restricted Subsidiaries after the Issue Date, an amount equal to the sum of (A) the net reduction in such Restricted Investments in any Person resulting from (i) repayments of loans or advances, or other transfers of assets, in each case to the Company or any Restricted Subsidiary, (ii) other repurchases, repayments or redemptions of such Restricted Investments, (iii) the sale of any such Restricted Investment or (iv) the release of any Guarantee (except to the extent any amounts are paid under such Guarantee) plus (B) all amounts representing the return of capital (excluding dividends and distributions) to the Company or any Restricted Subsidiary in respect of such Restricted Investment plus (C) with respect to any Unrestricted Subsidiary that the Board of Directors of the Company redesignates as a Restricted Subsidiary, the Fair Market Value of the Investment in such Subsidiary held by the Company or any of its Restricted Subsidiaries at the time of such redesignation. (b) The provisions of Section 5.5(a) hereof will not prohibit: (i) the payment of any dividend or the consummation of any irrevocable redemption within 60 days after the date of declaration of the dividend or giving of the redemption notice, as the case may be, if at the date of declaration or notice, the dividend or redemption payment would have complied with the provisions of this Agreement and the Notes; (ii) the making of any Restricted Payment in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Subsidiary of the Company) of, Equity Interests of the Company (other than Disqualified Stock) or from the substantially concurrent contribution (other than by a Subsidiary of the Company) of capital to the Company in respect of its Equity Interests (other than Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such Restricted Payment will be excluded from clause (iii)(2) of Section 5.5(a) hereof; (iii) the repurchase, redemption, defeasance or other acquisition or retirement for value of Subordinated Indebtedness (including the payment of any required premium and any fees and expenses incurred in connection with such repurchase, redemption, defeasance or other acquisition) with the net cash proceeds from a substantially concurrent incurrence of Permitted Refinancing Indebtedness; provided that the amount of any such net cash proceeds that are utilized for any such Restricted Payment will be excluded from clause (iii)(2) of Section 5.5(a) hereof; (iv) the payment of any dividend (or, in the case of any partnership or limited liability company, any similar distribution) by a Restricted Subsidiary of the Company to the holders of the Equity Interests (other than Disqualified Stock) of such Restricted Subsidiary; provided that such dividend or similar distribution is paid to all holders of such Equity Interests on a pro rata basis based on their respective holdings of such Equity Interests; (v) the payment of any dividend on the EB-5 Preferred Stock; (vi) the repurchase, redemption or other acquisition or retirement of Equity Interests deemed to occur upon the exercise or exchange of stock options, warrants or other similar rights to the extent such Equity Interests represent a portion of the exercise or exchange price of those stock options, and the repurchase, redemption or other acquisition or retirement of Equity Interests made in lieu of withholding taxes resulting from the exercise or exchange of stock options, warrants or other similar rights; (vii) so long as no Default has occurred and is continuing or would be caused thereby, the declaration and payment of regularly scheduled or accrued dividends to holders of any class or series of Disqualified Stock of the Company or any Restricted Subsidiary of the Company or any class or series of preferred stock of a Restricted Subsidiary of the Company, in each case issued on or after the Issue Date in accordance with the Fixed Charge Coverage Ratio test described in Section 5.7 hereof; (viii) payments to fund the purchase by the Company of fractional shares arising out of stock dividends, splits or combination or business combinations; (ix) the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company held by any of the Company’s (or any of its Restricted Subsidiaries’) current or former directors or employees; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may not exceed the Fair Market Value thereof and furthermore may not exceed, in any twelve-month period since the Issue Date, $0.5 million (with unused amounts (with respect to the $0.5 million limit referred to above) in any 12-month period after such date being permitted to be carried over into succeeding 12-month periods); provided, further, that the amounts in any such 12-month period may be increased by an amount not to exceed (1) the cash proceeds received by the Company or any of its Restricted Subsidiaries from the sale of the Company’s Equity Interests (other than Disqualified Stock) to any such directors or employees that occurs after the Issue Date (provided that the amount of such cash proceeds utilized for any such repurchase, retirement or other acquisition or retirement will not increase the amount available for Restricted Payments under clause (iii) of the immediately preceding paragraph and to the extent such proceeds have not otherwise been applied to the payment of Restricted Payments) plus (2) the cash proceeds of key man life insurance policies received by the Company and its Restricted Subsidiaries after the Issue Date; (x) the purchase or redemption of any Acquired Subordinated Indebtedness of the Company or any of its Restricted Subsidiaries, by application of (i) cash provided from operations in the ordinary course of business or (ii) proceeds from borrowings under the revolving portion of any Credit Facility (so long as within 30 days prior to such purchase or redemption, a corresponding amount of borrowings under the revolving portion of such Credit Facility was repaid from cash provided from operations in the ordinary course of business); provided, in any such case, that the Company is able to incur an additional $1.00 of Indebtedness pursuant to Section 5.5(a) hereof after giving effect to such purchase or redemption; provided, further, that this clause (x) shall not permit the application of any proceeds from any other borrowings under any Credit Facility to effect any such purchase or redemption; and (xi) so long as no Default has occurred and is continuing or would be caused thereby, other Restricted Payments in an aggregate amount not to exceed $5.0 million since the Issue Date. The amount of all Restricted Payments (other than cash) shall be the Fair Market Value on the date of such Restricted Payment of the asset(s) or securities proposed to be paid, transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to such Restricted Payment. The Fair Market Value of any cash Restricted Payment shall be its face amount, and the Fair Market Value of any non-cash Restricted Payment exceeding $5.0 million shall be determined conclusively by two senior officers of the Company acting in good faith whose conclusions with respect thereto shall be set forth in an Officers’ Certificate delivered to the Holders; provided, however, that if the Fair Market Value of any non-cash Restricted Payment exceeds $10.0 million, such Fair Market Value shall be determined conclusively by the Board of Directors of the Company and set forth in a board resolution, and a certified copy of such board resolution shall be delivered to the Holders. For purposes of determining compliance with this Section 5.5, in the event that a Restricted Payment meets the criteria of more than one of the exceptions described in (i) through (xi) above or is entitled to be made pursuant to Section 5.5(a) hereof, the Company shall, in its sole discretion, classify such Restricted Payment, or later classify, reclassify or re-divide all or a portion of such Restricted Payment, in any manner that complies with this Section 5.5.

Restricted Payments. (a) The Company will SPV Parties shall 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 Companyany SPV Party’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 any of its Restricted Subsidiariesconsolidation) or to the direct or indirect holders of the Companyany SPV Party’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 and other than dividends or distributions payable to the Company or a Restricted Subsidiary of the Company)such; (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 any direct or indirect parent of the Company;SPV Party; or (iii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Subordinated Indebtedness, except a payment of interest or principal at Indebtedness other than the Stated Maturity thereofPriority Lien Debt; or (iv) make any Restricted Investment Investment, (all such payments and other actions set forth in these clauses (i) through (iv) above being collectively referred to as “Restricted Payments”), unless, at the time of and after giving effect to such Restricted Paymentother than solely with respect to: (1) Restricted Payments (including the making of any intercompany loans, any payments in respect of intercompany debt or Junior Lien Debt or any payments with respect to Indebtedness in the nature of an “AHYDO catch up” payment with respect to any Indebtedness that constitutes an applicable high yield discount obligation) with amounts released to Loyalty Co under Section 2.10(b)(xi) of this Agreement or pursuant to Section 2.11 of the Collateral Agency and Accounts Agreement; and (2) (i) the distribution of the proceeds of the Term Loans and the notes under the Indenture from Loyalty Co to HoldCo 3, (ii) the subsequent distribution of the proceeds of the Term Loans and the notes under the Indenture from HoldCo 3 to HoldCo 2, and (iii) the making of the Delta Intercompany Loan, in each case, on the Closing Date; provided that notwithstanding anything to the contrary in this Agreement, other than funds released to Loyalty Co pursuant to clause (vi) of the priority of payments in Section 7.01, no Default or SPV Party shall be permitted to make any Restricted Payment at any time when an Event of Default has occurred and is continuing or would occur as a consequence of such Restricted Payment; (ii) the Company would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 5.7 hereof; and (iii) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries since the Issue Date (excluding Restricted Payments permitted by clauses (ii), (iii), (iv), (v), (vi), (vii), (viii) and (xi) of paragraph (b) of this Section 5.5), is less than the sum, without duplication, of: (1) 50% of the Consolidated Net Income of the Company for the period (taken as one accounting period) from the beginning of the fiscal quarter during which the Issue Date occurs to the end of the Company’s most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit); plus (2) 100% of (A)(i) the aggregate net cash proceeds and (ii) the Fair Market Value of (x) marketable securities (other than marketable securities of the Company), (y) Capital Stock of a Person (other than the Company or an Affiliate of the Company) engaged in a Permitted Business and (z) other assets used in any Permitted Business, in the case of clauses (i) and (ii), received by the Company since the Issue Date as a contribution to its common equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified Stock) or from the issue or sale of convertible or exchangeable Disqualified Stock or convertible or exchangeable debt securities of the Company that have been converted into or exchanged for such Equity Interests (other than Equity Interests (or Disqualified Stock or debt securities) sold to a Subsidiary of the Company), (B) the amount by which Indebtedness of the Company or any Restricted Subsidiary is reduced on the Company’s consolidated balance sheet upon the conversion or exchange after the Issue Date of any such Indebtedness into or for Equity Interests (other than Disqualified Stock) of the Company, and (C) the aggregate net cash proceeds, if any, received by the Company or any of its Restricted Subsidiaries upon any conversion or exchange described in clause (1) or (2) above; plus (3) with respect to Restricted Investments made by the Company and its Restricted Subsidiaries after the Issue Date, an amount equal to the sum of (A) the net reduction in such Restricted Investments in any Person resulting from (i) repayments of loans or advances, or other transfers of assets, in each case to the Company or any Restricted Subsidiary, (ii) other repurchases, repayments or redemptions of such Restricted Investments, (iii) the sale of any such Restricted Investment or (iv) the release of any Guarantee (except to the extent any amounts are paid under such Guarantee) plus (B) all amounts representing the return of capital (excluding dividends and distributions) to the Company or any Restricted Subsidiary in respect of such Restricted Investment plus (C) with respect to any Unrestricted Subsidiary that the Board of Directors of the Company redesignates as a Restricted Subsidiary, the Fair Market Value of the Investment in such Subsidiary held by the Company or any of its Restricted Subsidiaries at the time of such redesignationcontinuing. (b) The provisions of Section 5.5(a) hereof will not prohibit: (i) the payment of any dividend or the consummation of any irrevocable redemption within 60 days after the date of declaration of the dividend or giving of the redemption notice, as the case may be, if at the date of declaration or notice, the dividend or redemption payment would have complied with the provisions of this Agreement and the Notes; (ii) the making of any Restricted Payment in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Subsidiary of the Company) of, Equity Interests of the Company (other than Disqualified Stock) or from the substantially concurrent contribution (other than by a Subsidiary of the Company) of capital to the Company in respect of its Equity Interests (other than Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such Restricted Payment will be excluded from clause (iii)(2) of Section 5.5(a) hereof; (iii) the repurchase, redemption, defeasance or other acquisition or retirement for value of Subordinated Indebtedness (including the payment of any required premium and any fees and expenses incurred in connection with such repurchase, redemption, defeasance or other acquisition) with the net cash proceeds from a substantially concurrent incurrence of Permitted Refinancing Indebtedness; provided that the amount of any such net cash proceeds that are utilized for any such Restricted Payment will be excluded from clause (iii)(2) of Section 5.5(a) hereof; (iv) the payment of any dividend (or, in the case of any partnership or limited liability company, any similar distribution) by a Restricted Subsidiary of the Company to the holders of the Equity Interests (other than Disqualified Stock) of such Restricted Subsidiary; provided that such dividend or similar distribution is paid to all holders of such Equity Interests on a pro rata basis based on their respective holdings of such Equity Interests; (v) the payment of any dividend on the EB-5 Preferred Stock; (vi) the repurchase, redemption or other acquisition or retirement of Equity Interests deemed to occur upon the exercise or exchange of stock options, warrants or other similar rights to the extent such Equity Interests represent a portion of the exercise or exchange price of those stock options, and the repurchase, redemption or other acquisition or retirement of Equity Interests made in lieu of withholding taxes resulting from the exercise or exchange of stock options, warrants or other similar rights; (vii) so long as no Default has occurred and is continuing or would be caused thereby, the declaration and payment of regularly scheduled or accrued dividends to holders of any class or series of Disqualified Stock of the Company or any Restricted Subsidiary of the Company or any class or series of preferred stock of a Restricted Subsidiary of the Company, in each case issued on or after the Issue Date in accordance with the Fixed Charge Coverage Ratio test described in Section 5.7 hereof; (viii) payments to fund the purchase by the Company of fractional shares arising out of stock dividends, splits or combination or business combinations; (ix) the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company held by any of the Company’s (or any of its Restricted Subsidiaries’) current or former directors or employees; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may not exceed the Fair Market Value thereof and furthermore may not exceed, in any twelve-month period since the Issue Date, $0.5 million (with unused amounts (with respect to the $0.5 million limit referred to above) in any 12-month period after such date being permitted to be carried over into succeeding 12-month periods); provided, further, that the amounts in any such 12-month period may be increased by an amount not to exceed (1) the cash proceeds received by the Company or any of its Restricted Subsidiaries from the sale of the Company’s Equity Interests (other than Disqualified Stock) to any such directors or employees that occurs after the Issue Date (provided that the amount of such cash proceeds utilized for any such repurchase, retirement or other acquisition or retirement will not increase the amount available for Restricted Payments under clause (iii) of the immediately preceding paragraph and to the extent such proceeds have not otherwise been applied to the payment of Restricted Payments) plus (2) the cash proceeds of key man life insurance policies received by the Company and its Restricted Subsidiaries after the Issue Date; (x) the purchase or redemption of any Acquired Subordinated Indebtedness of the Company or any of its Restricted Subsidiaries, by application of (i) cash provided from operations in the ordinary course of business or (ii) proceeds from borrowings under the revolving portion of any Credit Facility (so long as within 30 days prior to such purchase or redemption, a corresponding amount of borrowings under the revolving portion of such Credit Facility was repaid from cash provided from operations in the ordinary course of business); provided, in any such case, that the Company is able to incur an additional $1.00 of Indebtedness pursuant to Section 5.5(a) hereof after giving effect to such purchase or redemption; provided, further, that this clause (x) shall not permit the application of any proceeds from any other borrowings under any Credit Facility to effect any such purchase or redemption; and (xi) so long as no Default has occurred and is continuing or would be caused thereby, other Restricted Payments in an aggregate amount not to exceed $5.0 million since the Issue Date. The amount of all Restricted Payments (other than cash) shall be the Fair Market Value on the date of such Restricted Payment of the asset(s) or securities proposed to be paid, transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to such Restricted Payment. The Fair Market Value of any cash Restricted Payment shall be its face amount, and the Fair Market Value of any non-cash Restricted Payment exceeding $5.0 million shall be determined conclusively by two senior officers of the Company acting in good faith whose conclusions with respect thereto shall be set forth in an Officers’ Certificate delivered to the Holders; provided, however, that if the Fair Market Value of any non-cash Restricted Payment exceeds $10.0 million, such Fair Market Value shall be determined conclusively by the Board of Directors of the Company and set forth in a board resolution, and a certified copy of such board resolution shall be delivered to the Holders. For purposes of determining compliance with this Section 5.5, in the event that a Restricted Payment meets the criteria of more than one of the exceptions described in (i) through (xi) above or is entitled to be made pursuant to Section 5.5(a) hereof, the Company shall, in its sole discretion, classify such Restricted Payment, or later classify, reclassify or re-divide all or a portion of such Restricted Payment, in any manner that complies with this Section 5.5.

Restricted Payments. (a) The Company 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 its Restricted Subsidiaries’ Subsidiary’s Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company or any of its Restricted SubsidiariesSubsidiary) or to the direct or indirect holders of the Company’s or any of its Restricted Subsidiaries’ Subsidiary’s Equity Interests in their capacity as such (other than dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company such Person and other than dividends or distributions payable to the Company or a any Restricted Subsidiary of the CompanySubsidiary); (ii2) purchaserepurchase, redeem or otherwise acquire or retire for value (including including, without limitation, in connection with any merger or consolidation involving the Companyconsolidation) any Equity Interests of the Company or any direct or indirect parent of the Company; (iii3) make any payment on or with respect to, or purchaserepurchase, redeem, defease or otherwise acquire or retire for value any Subordinated IndebtednessIndebtedness of the Company or any Subsidiary Guarantor (excluding any intercompany Indebtedness between or among the Company and any Restricted Subsidiary), except a payment of interest or principal at or within 90 days of the Stated Maturity thereof; or (iv4) make any Restricted Investment Investment; (all such payments and other actions set forth in these clauses (i1) through (iv4) above being collectively referred to as “Restricted Payments”), unless, at the time of and after giving effect to such Restricted Payment: (i) no Default or Event of Default has occurred and is continuing or would occur as a consequence of such Restricted Payment; (ii) the Company would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 5.7 hereof; and (iii) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries since the Issue Date (excluding Restricted Payments permitted by clauses (ii), (iii), (iv), (v), (vi), (vii), (viii) and (xi) of paragraph (b) of this Section 5.5), is less than the sum, without duplication, of: (1) 50% of the Consolidated Net Income of the Company for the period (taken as one accounting period) from the beginning of the fiscal quarter during which the Issue Date occurs to the end of the Company’s most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit); plus (2) 100% of (A)(i) the aggregate net cash proceeds and (ii) the Fair Market Value of (x) marketable securities (other than marketable securities of the Company), (y) Capital Stock of a Person (other than the Company or an Affiliate of the Company) engaged in a Permitted Business and (z) other assets used in any Permitted Business, in the case of clauses (i) and (ii), received by the Company since the Issue Date as a contribution to its common equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified Stock) or from the issue or sale of convertible or exchangeable Disqualified Stock or convertible or exchangeable debt securities of the Company that have been converted into or exchanged for such Equity Interests (other than Equity Interests (or Disqualified Stock or debt securities) sold to a Subsidiary of the Company), (B) the amount by which Indebtedness of the Company or any Restricted Subsidiary is reduced on the Company’s consolidated balance sheet upon the conversion or exchange after the Issue Date of any such Indebtedness into or for Equity Interests (other than Disqualified Stock) of the Company, and (C) the aggregate net cash proceeds, if any, received by the Company or any of its Restricted Subsidiaries upon any conversion or exchange described in clause (1) or (2) above; plus (3) with respect to Restricted Investments made by the Company and its Restricted Subsidiaries after the Issue Date, an amount equal to the sum of (A) the net reduction in such Restricted Investments in any Person resulting from (i) repayments of loans or advances, or other transfers of assets, in each case to the Company or any Restricted Subsidiary, (ii) other repurchases, repayments or redemptions of such Restricted Investments, (iii) the sale of any such Restricted Investment or (iv) the release of any Guarantee (except to the extent any amounts are paid under such Guarantee) plus (B) all amounts representing the return of capital (excluding dividends and distributions) to the Company or any Restricted Subsidiary in respect of such Restricted Investment plus (C) with respect to any Unrestricted Subsidiary that the Board of Directors of the Company redesignates as a Restricted Subsidiary, the Fair Market Value of the Investment in such Subsidiary held by the Company or any of its Restricted Subsidiaries at the time of such redesignation. (b) The provisions of Section 5.5(a4.04(a) hereof will shall not prohibit: (i1) the payment of any dividend or the consummation of any irrevocable redemption within 60 days after the date of declaration of the dividend or giving of the redemption notice, as the case may bedividend, if at the date of declaration or notice, the dividend or redemption payment would have complied with the provisions of this Agreement and the NotesIndenture; (ii2) the making of any Restricted Payment in exchange for, or out irrevocable redemption of the net cash proceeds of the substantially concurrent sale (other than to a Subsidiary of the Company) of, Equity Interests of the Company (other than Disqualified Stock) or from the substantially concurrent contribution (other than by a Subsidiary of the Company) of capital to the Company in respect of its Equity Interests (other than Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such Restricted Payment will be excluded from clause (iii)(2) of Section 5.5(a) hereof; (iii) the repurchase, redemption, defeasance or other acquisition or retirement for value of Subordinated Indebtedness (including the payment of any required premium and any fees and expenses incurred in connection with such repurchase, redemption, defeasance or other acquisition) with the net cash proceeds from a substantially concurrent incurrence of Permitted Refinancing Indebtedness; provided that the amount of any such net cash proceeds that are utilized for any such Restricted Payment will be excluded from clause (iii)(2) of Section 5.5(a) hereof; (iv) the payment of any dividend (or, in the case of any partnership or limited liability company, any similar distribution) by a Restricted Subsidiary of the Company to the holders of the Equity Interests (other than Disqualified Stock) of such Restricted Subsidiary; provided that such dividend or similar distribution is paid to all holders of such Equity Interests on a pro rata basis based on their respective holdings of such Equity Interests; (v) the payment of any dividend on the EB-5 Preferred Stock; (vi) the repurchase, redemption or other acquisition or retirement of Equity Interests deemed to occur upon the exercise or exchange of stock options, warrants or other similar rights to the extent such Equity Interests represent a portion of the exercise or exchange price of those stock options, and the repurchase, redemption or other acquisition or retirement of Equity Interests Securities made in lieu of withholding taxes resulting from the exercise or exchange of stock options, warrants or other similar rights; (vii) so long as no Default has occurred and is continuing or would be caused thereby, the declaration and payment of regularly scheduled or accrued dividends to holders of any class or series of Disqualified Stock of the Company or any Restricted Subsidiary of the Company or any class or series of preferred stock of a Restricted Subsidiary of the Company, in each case issued on or after the Issue Date in accordance with the Fixed Charge Coverage Ratio test described in Section 5.7 hereofterms of this Indenture; (viii3) the payments of required tax distributions made pursuant to fund the purchase by the Company of fractional shares arising out of stock dividends, splits or combination or business combinationsPartnership Agreement; (ix4) the repayment of intercompany debt among the Company and any Restricted Subsidiaries that was permitted to be incurred under this Indenture; (5) the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Restricted Subsidiary Subsidiary, whether upon the exercise or conversion of stock appreciation rights, restricted stock, unit options, restricted units, phantom units, warrants, incentives, rights to acquire Equity Interests or other derivative securities of such Equity Interests or otherwise, held by any current or former officer, director, member of management, consultant or employee (or their transferees, estates or beneficiaries under their estates) of the Company held by any of the Company’s (or any of its Restricted Subsidiaries’) current Subsidiary pursuant to any equity subscription agreement, stock option agreement, shareholders’ agreement, employment agreement or former directors or employeessimilar agreement; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may not exceed the Fair Market Value thereof and furthermore may not exceed, $2.0 million in any consecutive twelve-month period since period; (6) the Issue Daterepurchase of Equity Interests deemed to occur upon the exercise or conversion of stock appreciation rights, $0.5 million (with unused amounts (with respect restricted stock, unit options, restricted units, phantom units, warrants, incentives, rights to acquire Equity Interests or other derivative securities of such Equity Interests to the $0.5 million limit referred to aboveextent such Equity Interests represent a portion of the exercise price thereof and any repurchase or other acquisition of any of the foregoing made in lieu of withholding taxes in connection therewith; (7) in any 12-month period after such date being permitted to be carried over into succeeding 12-month periods); providedpayments of cash, furtherdividends, that the amounts in any such 12-month period may be increased by an amount not to exceed (1) the cash proceeds received distributions, advances or other Restricted Payments by the Company or any Restricted Subsidiary to allow the payment of its Restricted Subsidiaries from the sale cash in lieu of the Company’s Equity Interests issuance of fractional shares upon (other than Disqualified Stocka) to the exercise of options or warrants or (b) the conversion or exchange of Capital Stock of any such directors or employees that occurs after Person; (8) the Issue Date (provided that the amount of such cash proceeds utilized for any such repayment, redemption, repurchase, retirement defeasance or other acquisition or retirement will for value of any subordinated Indebtedness, Disqualified Stock or Preferred Stock at a purchase price not increase the amount available for Restricted Payments under clause greater than (iiia) 101% of the immediately preceding paragraph and principal amount thereof or liquidation preference in the event of a change of control pursuant to a provision no more favorable to the extent such proceeds have not otherwise been applied to holders than Section 4.09, (b) 100% of the payment principal amount thereof or liquidation preference in the event of Restricted Payments) plus an Asset Sale and (2c) the cash proceeds applicable percentage set forth in the definition of key man life insurance policies received “Majority Asset Sale Premium” of the principal amount thereof or liquidation preference in the event of a Majority Asset Sale, in each case plus accrued and unpaid interest thereon, in connection with any Change of Control Offer, Asset Sale Offer or Majority Asset Sale Offer required by the terms of such Indebtedness, Disqualified Stock or Preferred Stock, but only if: (i) in the case of a Change of Control, the Company has complied with and satisfied its Restricted Subsidiaries after the Issue Dateobligations as described in Section 4.09; (xii) in the purchase or redemption case of any Acquired Subordinated Indebtedness of an Asset Sale, the Company or any of has complied with and satisfied its Restricted Subsidiaries, by application of (i) cash provided from operations obligations as described in the ordinary course of business or (ii) proceeds from borrowings under the revolving portion of any Credit Facility (so long as within 30 days prior to such purchase or redemption, a corresponding amount of borrowings under the revolving portion of such Credit Facility was repaid from cash provided from operations in the ordinary course of business); provided, in any such case, that the Company is able to incur an additional $1.00 of Indebtedness pursuant to Section 5.5(a) hereof after giving effect to such purchase or redemption; provided, further, that this clause (x) shall not permit the application of any proceeds from any other borrowings under any Credit Facility to effect any such purchase or redemption4.07; and (xiiii) in the case of an Majority Asset Sale, the Company has complied with and satisfied its obligations as described in Section 4.18; and (9) so long as no Default or Event of Default has occurred and is continuing or would be caused therebyoccur as a consequence thereof, other Restricted Payments in an aggregate amount not to exceed $5.0 10.0 million since the Issue Date. date of this Indenture. (c) The amount of all Restricted Payments (other than cash) shall will be the Fair Market Value on the date of such the Restricted Payment (or, in the case of a dividend, on the date of declaration) of the asset(s) or securities proposed to be paid, transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to such the Restricted Payment. The Fair Market Value of any cash Restricted Payment shall assets or securities that are required to be its face amountvalued by this Section 4.04 will be determined, and the Fair Market Value of any non-cash Restricted Payment exceeding $5.0 million shall be determined conclusively by two senior officers management of the Company acting in good faith whose conclusions with respect thereto shall be set forth in an Officers’ Certificate delivered to the Holders; provided, however, that if the Fair Market Value case of any non-cash Restricted Payment exceeds amounts less than $10.0 million, such Fair Market Value shall be determined conclusively million and by the Board of Directors of the Company and set forth in a board resolution, and a certified copy the case of such board resolution shall be delivered to the Holders. amounts in excess thereof. (d) For purposes of determining compliance with this Section 5.54.04, in the event that a Restricted Payment meets the criteria of more than one of the exceptions categories of Restricted Payments described in clauses (i1) through (xi9) above of Section 4.04(b) or is entitled to be made pursuant to Section 5.5(a) hereofas a Permitted Investment, the Company shall, shall be permitted to classify (or later reclassify in its sole discretion, classify ) such Restricted Payment, Payment or later classify, reclassify or re-divide all or a portion of such Restricted Payment, Permitted Investment in any manner that complies with this Section 5.54.04.

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 or any of its Restricted Subsidiaries’ 's Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company or any of its Restricted SubsidiariesCompany) or to the direct or indirect holders of the Company’s or any of its Restricted Subsidiaries’ 's Equity Interests in their capacity as such (other than dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company and other than dividends or distributions payable to the Company or a Restricted Subsidiary of the Company); (ii2) purchase, redeem or otherwise acquire or retire for value (including including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or any direct or indirect parent of the Company; (iii3) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Subordinated IndebtednessIndebtedness that is subordinated to the Notes or the Subsidiary Guarantee, except a payment of interest or principal at the Stated Maturity thereof (other than (x) intercompany Indebtedness permitted under Section 4.09(b)(7) hereof and (y) the purchase, repurchase or other acquisition of subordinated Indebtedness purchased in anticipation of satisfying a payment of principal at the Stated Maturity thereof, in each case within one year of such Stated Maturity); or (iv4) make any Restricted Investment (all such payments and other actions set forth in these clauses (i1) through (iv4) above being collectively referred to as “"Restricted Payments”"), unless, at the time of and after giving effect to such Restricted Payment: (i1) no Default or Event of Default has occurred and is continuing or would occur as a consequence of such Restricted Paymentcontinuing; (ii2) the Company would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to could incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 5.7 4.09(a) hereof; and (iii3) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries since after the Issue Date date of this Indenture (excluding Restricted Payments permitted by clauses (ii2), (iii3), (iv4), (v5), (vi6), (vii7), (viii) 8) and (xi9) of paragraph (bSection 4.07(b) of this Section 5.5hereof), is less than the sum, without duplication, of: (1A) 50% of the Consolidated Net Income of the Company for the period (taken as one accounting period) from the beginning of the fiscal quarter during in which the Issue Date occurs Initial Notes are issued to the end of the Company’s 's most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit); , provided that for the purposes of this clause (A), in the event of a Permitted Spin-Off Transaction, Consolidated Net Income shall thereafter be calculated on a pro forma basis, as if such Permitted Spin-Off Transaction had been consummated on the date of this Indenture, plus (2B) 100% of (A)(i) the aggregate net cash proceeds and (ii) the Fair Market Value of (x) marketable securities (other than marketable securities of the Company), (y) Capital Stock of a Person (other than the Company or an Affiliate of the Company) engaged in a Permitted Business and (z) other assets used in any Permitted Business, in the case of clauses (i) and (ii), received by the Company since the Issue Date date of this Indenture (i) as a contribution to its common equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified Stock) or (ii) from the issue or sale of convertible or exchangeable Disqualified Stock or convertible or exchangeable debt securities of the Company that have been converted upon conversion into or exchanged exchange for such Equity Interests (other than Equity Interests (or Disqualified Stock or debt securities) sold to a Subsidiary of the Company), plus (BC) the amount by which Indebtedness 100% of the Company or any Restricted Subsidiary is reduced on fair market value as of the Company’s consolidated balance sheet upon the conversion or exchange after the Issue Date date of issuance of any such Indebtedness into or for Equity Interests (other than Disqualified Stock) of issued by the Company, and (C) Company as consideration for the aggregate net cash proceeds, if any, received purchase by the Company or any of its Restricted Subsidiaries upon any conversion of all or exchange described in clause substantially all of the assets of, or a majority of the Voting Stock of, another Permitted Business (1) including by means of a merger, consolidation or (2) above; other business combination permitted under this Indenture), plus (3D) to the extent that any Restricted Investment that was made after the date of this Indenture is sold for cash or otherwise liquidated or repaid for cash, the lesser of (i) the cash return of capital with respect to such Restricted Investments made by Investment (less the cost of disposition, if any) and (ii) the initial amount of such Restricted Investment, plus (E) to the extent that any Unrestricted Subsidiary of the Company and its is redesignated as a Restricted Subsidiaries Subsidiary after the Issue Datedate of this Indenture, an amount equal to the sum lesser of (A) the net reduction in such Restricted Investments in any Person resulting from (i) repayments of loans or advances, or other transfers of assets, in each case to the Company or any Restricted Subsidiary, (ii) other repurchases, repayments or redemptions of such Restricted Investments, (iii) the sale of any such Restricted Investment or (iv) the release of any Guarantee (except to the extent any amounts are paid under such Guarantee) plus (B) all amounts representing the return of capital (excluding dividends and distributions) to the Company or any Restricted Subsidiary in respect of such Restricted Investment plus (C) with respect to any Unrestricted Subsidiary that the Board of Directors fair market value of the Company redesignates as a Restricted Subsidiary, the Fair Market Value of the Company's Investment in such Subsidiary held by as of the Company or any of its Restricted Subsidiaries at the time date of such redesignationredesignation or (ii) such fair market value as of the date on which such Subsidiary was originally designated as an Unrestricted Subsidiary. (b) The provisions of Section 5.5(a4.07 (a) hereof will not prohibit: (i1) the payment of any dividend or the consummation of any irrevocable redemption within 60 days after the date of declaration of the dividend or giving of the redemption notice, as the case may bedividend, if at the date of declaration or notice, the dividend or redemption payment would have complied with the provisions of this Agreement and the NotesIndenture; (ii2) any Restricted Payments required to complete a Permitted Spin-Off Transaction; (3) the making redemption, repurchase, retirement, defeasance or other acquisition of any subordinated Indebtedness of the Company or any Restricted Payment Subsidiary or of any Equity Interests of the Company in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Restricted Subsidiary of the Company) of, Equity Interests of the Company (other than Disqualified Stock) or from the substantially concurrent contribution (other than by a Subsidiary of the Company) of capital to the Company in respect of its Equity Interests (other than Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such Restricted Payment will redemption, repurchase, retirement, defeasance or other acquisition shall be excluded from clause (iii)(2) of Section 5.5(a4.07(a)(3)(B) hereof; (iii4) the repurchasedefeasance, redemption, defeasance repurchase or other acquisition or retirement for value of Subordinated subordinated Indebtedness (including the payment of any required premium and any fees and expenses incurred in connection with such repurchase, redemption, defeasance or other acquisition) with the net cash proceeds from a substantially concurrent incurrence of Permitted Refinancing Indebtedness; provided that the amount of any such net cash proceeds that are utilized for any such Restricted Payment will be excluded from clause (iii)(2) of Section 5.5(a) hereof; (iv) the payment of any dividend (or, in the case of any partnership or limited liability company, any similar distribution) by a Restricted Subsidiary of the Company to the holders of the Equity Interests (other than Disqualified Stock) of such Restricted Subsidiary; provided that such dividend or similar distribution is paid to all holders of such Equity Interests on a pro rata basis based on their respective holdings of such Equity Interests; (v) the payment of any dividend on the EB-5 Preferred Stock; (vi) the repurchase, redemption or other acquisition or retirement of Equity Interests deemed to occur upon the exercise or exchange of stock options, warrants or other similar rights to the extent such Equity Interests represent a portion of the exercise or exchange price of those stock options, and the repurchase, redemption or other acquisition or retirement of Equity Interests made in lieu of withholding taxes resulting from the exercise or exchange of stock options, warrants or other similar rights; (vii) so long as no Default has occurred and is continuing or would be caused thereby, the declaration and payment of regularly scheduled or accrued dividends to holders of any class or series of Disqualified Stock of the Company or any Restricted Subsidiary of the Company or any class or series of preferred stock of a Restricted Subsidiary of the Company, in each case issued on or after the Issue Date in accordance with the Fixed Charge Coverage Ratio test described in Section 5.7 hereofnet cash proceeds from an incurrence of Permitted Refinancing Indebtedness; (viii5) payments to fund the purchase by the Company so long as no Default or Event of fractional shares arising out of stock dividendsDefault shall have occurred and be continuing, splits or combination or business combinations; (ix) the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company held by any from employees, former employees, directors or former directors of the Company’s (Company or any of its Restricted Subsidiaries’) current Subsidiaries or their authorized representatives upon the death, disability or termination of the employment of such employees or former directors employees or employeestermination of the term of such director or former director; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may not exceed the Fair Market Value thereof and furthermore may not exceed, $25.0 million in any twelve-month period since the Issue Date, $0.5 million (with unused amounts (with respect to the $0.5 million limit referred to above) period; provided further that such amount in any 12-month period after such date being permitted to be carried over into succeeding 12-month periods); provided, further, that the amounts in any such 12-month period calendar year may be increased by an amount not to exceed (1) the cash proceeds received by the Company or any of its Restricted Subsidiaries from the sale of the Company’s Equity Interests (other than Disqualified Stock) to any such directors or employees that occurs after the Issue Date (provided that the amount of such cash proceeds utilized for any such repurchase, retirement or other acquisition or retirement will not increase the amount available for Restricted Payments under clause (iii) of the immediately preceding paragraph and to the extent such proceeds have not otherwise been applied to the payment of Restricted Payments) plus (2) the cash proceeds of key man life insurance policies received by the Company and its Restricted Subsidiaries after the Issue Datedate of this Indenture less the amount of any Restricted Payments previously made pursuant to this proviso; (x6) repurchases of Equity Interests deemed to occur upon (i) the purchase exercise of stock options if such Equity Interests represent a portion of the exercise price thereof and (ii) the withholding of a portion of the Equity Interests granted or redemption awarded to an employee to pay taxes associated therewith; (7) the declaration and payment of dividends to holders of any Acquired Subordinated Indebtedness class or series of Disqualified Stock of the Company or any of its Restricted Subsidiaries, by application of (i) cash provided from operations issued in accordance with Section 4.09 hereof to the extent such dividends are included in the ordinary course definition of business or Fixed Charges; (ii) proceeds from borrowings under the revolving portion of any Credit Facility (8) so long as within 30 days no Default or Event of Default shall have occurred and be continuing, the declaration and payment of dividends to holders of the Company's common stock in respect of any fiscal quarter ending on or prior to March 31, 2005; provided that any such purchase or redemption, a corresponding amount of borrowings under the revolving portion of such Credit Facility was repaid from cash provided from operations in the ordinary course of business); provided, dividends declared and paid pursuant to this clause (8) shall not exceed $35.0 million in any such case, that the Company is able to incur an additional $1.00 of Indebtedness pursuant to Section 5.5(a) hereof after giving effect to such purchase or redemptionfiscal quarter; provided, further, that this clause (x) shall not permit the application of any proceeds from any other borrowings under any Credit Facility to effect any such purchase or redemption; andor (xi9) so long as no Default has or Event of Default shall have occurred and is continuing or would be caused therebycontinuing, other Restricted Payments in an aggregate amount amount, when taken together with all other Restricted Payments made pursuant to this clause (9), not to exceed $5.0 million since the Issue Date. 200.0 million. (c) The amount of all Restricted Payments (other than cash) shall will be the Fair Market Value fair market value on the date of such the Restricted Payment of the asset(s) or securities proposed to be paid, transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to such the Restricted Payment. The Fair Market Value fair market value of any cash Restricted Payment shall assets or securities that are required to be its face amount, and the Fair Market Value of any non-cash Restricted Payment exceeding $5.0 million shall valued by this Section 4.07 will be determined conclusively by two senior officers of the Company acting in good faith whose conclusions with respect thereto shall be set forth in an Officers’ Certificate delivered to the Holders; provided, however, that if the Fair Market Value of any non-cash Restricted Payment exceeds $10.0 million, such Fair Market Value shall be determined conclusively by the Board of Directors of the Company whose resolution with respect thereto will be final and set forth in a board resolution, binding and a certified copy of such board resolution shall will be delivered to the Holders. For purposes of determining compliance with this Section 5.5, in the event that a Restricted Payment meets the criteria of more than one of the exceptions described in (i) through (xi) above or is entitled to be made pursuant to Section 5.5(a) hereof, the Company shall, in its sole discretion, classify such Restricted Payment, or later classify, reclassify or re-divide all or a portion of such Restricted Payment, in any manner that complies with this Section 5.5Trustee.

Restricted Payments. (a) The Company Borrower will not, and will not cause or permit any of its Restricted Subsidiaries Subsidiary 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 any of 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 Borrower) on or in respect of shares of the Borrower's Qualified Capital Stock to holders of such Capital Stock, (b) redeem any Capital Stock of the Borrower or any warrants, rights or options to purchase or acquire shares of any class of such Capital Stock or (c) make any Investment (other than Disqualified StockPermitted Investments) (each of the Company and other than dividends or distributions payable to the Company or a 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 any direct or indirect parent of the Company; (iii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Subordinated Indebtedness, except a payment of interest or principal at the Stated Maturity thereof; or (iv) make any Restricted Investment (all such payments and other foregoing actions set forth in these clauses (ia), (b) through and (ivc) above being collectively referred to as “a "Restricted Payments”Payment"), unless, at the time of and after giving effect to such Restricted Payment: (i) no Default or Event of Default has occurred and is continuing or would occur as a consequence of such Restricted Payment; (ii) the Company would, if at the time of such Restricted Payment and or immediately after giving pro forma effect thereto as if such Restricted Payment had been made at thereto, (i) a Default shall have occurred and be continuing or (ii) the beginning of the applicable four-quarter period, have been permitted Borrower is not able to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in paragraph (xvii) of Section 5.7 hereof; and 6.01 or (iii) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its (including such proposed Restricted Subsidiaries since the Issue Date (Payment but excluding Restricted Payments permitted by clauses pursuant to clause (ii2), (iii3), (iv5), (v6), (vi7), (vii8), (9), (viii10), (11), (12), (13) and or (xi14) of paragraph the next paragraph) made subsequent to the January 1, 1999 shall exceed the sum (bthe "Basket") of this Section 5.5), is less than the sum, (without duplication, of: ): (1v) 50% of the cumulative Consolidated Net Income of the Company for the period (taken as one accounting period) from the beginning of the fiscal quarter during which the Issue Date occurs to the end of the Company’s most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, or if such cumulative Consolidated Net Income for such period is shall be a deficitloss, less minus 100% of such deficitloss) of the Borrower earned subsequent to January 1, 1999 and on or prior to the date the Restricted Payment occurs (the "Reference Date") (treating such period as a single accounting period); plus plus (2x) 100% of (A)(i) the aggregate net cash proceeds and (ii) received by the Fair Market Value of (x) marketable securities (other than marketable securities of the Company), (y) Capital Stock of a Borrower from any Person (other than the Company or an Affiliate of the Company) engaged in a Permitted Business and (z) other assets used in any Permitted Business, in the case of clauses (i) and (ii), received by the Company since the Issue Date as a contribution to its common equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified Stock) or from the issue or sale of convertible or exchangeable Disqualified Stock or convertible or exchangeable debt securities of the Company that have been converted into or exchanged for such Equity Interests (other than Equity Interests (or Disqualified Stock or debt securities) sold to a Subsidiary of the Company), (BBorrower) from the amount by which Indebtedness issuance and sale subsequent to the Borrowing Date and on or prior to the Reference Date of Qualified Capital Stock of the Company or any Restricted Subsidiary is reduced on the Company’s consolidated balance sheet upon the conversion or exchange after the Issue Date Borrower; plus (y) without duplication of any such Indebtedness into or for Equity Interests amounts included in clause (other than Disqualified Stockiii)(w) above, 100% of the Company, and (C) the aggregate net cash proceeds, if any, proceeds of any equity contribution (other than from a Subsidiary of the Borrower) received by the Company or Borrower from a holder of the Borrower's Capital Stock; and plus (z) without duplication of any amounts included in the calculation of its Restricted Subsidiaries upon any conversion or exchange described in clause Consolidated Net Income, the sum of (1) or to the extent any Investment (2other than a Permitted Investment) above; plus (3) with respect to Restricted Investments that was made by the Company and its Restricted Subsidiaries after the Issue DateBorrowing Date is sold for cash or otherwise liquidated or repaid for cash, an amount equal to the sum lesser of (A) the net reduction in cash received with respect to such Restricted Investments in any Person resulting from (i) repayments of loans sale, liquidation or advances, or other transfers of assets, in each case to the Company or any Restricted Subsidiary, (ii) other repurchases, repayments or redemptions repayment of such Restricted Investments, Investment (iii) less the sale cost of any such Restricted Investment sale, liquidation or (ivrepayment, if any) the release of any Guarantee (except to the extent any amounts are paid under such Guarantee) plus and (B) all amounts representing the return of capital (excluding dividends and distributions) to the Company or any Restricted Subsidiary in respect initial amount of such Restricted Investment plus (C) with respect to any Unrestricted Subsidiary that the Board of Directors of the Company redesignates included as a Restricted SubsidiaryPayment and (2) upon redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary (other than a Subsidiary that is an Unrestricted Subsidiary on the Borrowing Date), the Fair Market Value lesser of (A) the fair market value of the net assets of such Subsidiary upon its redesignation as a Restricted Subsidiary and (B) the Investment made in such Subsidiary held by the Company or any of its that is treated as a Restricted Subsidiaries at the time of such redesignationPayment. (b) The Notwithstanding the foregoing, the provisions of Section 5.5(a) hereof set forth in the immediately preceding paragraph will not prohibit: (i1) the payment of any dividend or the consummation of any irrevocable redemption within 60 days after the date of declaration of such dividend if the dividend or giving of the redemption notice, as the case may be, if at would have been permitted on the date of declaration or notice, the dividend or redemption payment would have complied with the provisions of this Agreement and the Notesdeclaration; (2) the acquisition of any shares of Capital Stock of the Borrower, either (i) solely in exchange for shares of Qualified Capital Stock of the Borrower or (ii) through the making application of any Restricted Payment in exchange for, or out of the net cash proceeds of the a substantially concurrent sale for cash (other than to a Subsidiary of the CompanyBorrower) of, Equity Interests of shares of Qualified Capital Stock of the Company Borrower; provided, however, that no transaction pursuant to this clause (other than Disqualified 2) shall increase the Basket; (3) the repurchase of shares of Superior Preferred Stock) or from the substantially concurrent contribution (other than by a Subsidiary of the Company) of capital to the Company in respect of its Equity Interests (other than Disqualified Stock); , provided that the amount only consideration to be paid in connection therewith shall be shares of any such net cash proceeds (x) Parent Common Stock and/or (y) preferred stock of the Parent having terms identical, in all material respects, to the Superior Preferred Stock (including as to dividend rate and liquidation preferences) except that are utilized for any such Restricted Payment will the issuer thereof shall be excluded from clause (iii)(2) of Section 5.5(a) hereofthe Parent; (iii) the repurchase, redemption, defeasance or other acquisition or retirement for value of Subordinated Indebtedness (including the payment of any required premium and any fees and expenses incurred in connection with such repurchase, redemption, defeasance or other acquisition) with the net cash proceeds from a substantially concurrent incurrence of Permitted Refinancing Indebtedness; provided that the amount of any such net cash proceeds that are utilized for any such Restricted Payment will be excluded from clause (iii)(2) of Section 5.5(a) hereof; (iv) the payment of any dividend (or, in the case of any partnership or limited liability company, any similar distribution) by a Restricted Subsidiary of the Company to the holders of the Equity Interests (other than Disqualified Stock) of such Restricted Subsidiary; provided that such dividend or similar distribution is paid to all holders of such Equity Interests on a pro rata basis based on their respective holdings of such Equity Interests; (v) the payment of any dividend on the EB-5 Preferred Stock; (vi) the repurchase, redemption or other acquisition or retirement of Equity Interests deemed to occur upon the exercise or exchange of stock options, warrants or other similar rights to the extent such Equity Interests represent a portion of the exercise or exchange price of those stock options, and the repurchase, redemption or other acquisition or retirement of Equity Interests made in lieu of withholding taxes resulting from the exercise or exchange of stock options, warrants or other similar rights; (vii4) so long as no Default has or Event of Default shall have occurred and is be continuing or would be caused therebyresult therefrom, dividends paid by the declaration and Borrower to the Parent so long as the proceeds thereof are used at the time of such dividend payment of regularly scheduled or accrued dividends by the Parent to holders of any class or series of Disqualified Stock of the Company or any Restricted Subsidiary of the Company or any class or series of preferred stock of pay a Restricted Subsidiary of the Company, in each case issued dividend on or after repurchase Parent Common Stock; provided, however, that the Issue Date Borrower is permitted to pay such dividend to the Parent under the Senior Secured Credit Agreement (as in accordance with effect on the Fixed Charge Coverage Ratio test described in Section 5.7 hereofBorrowing Date); (viii5) payments to fund Investments in Foreign Subsidiaries by other Foreign Subsidiaries (other than the purchase by the Company of fractional shares arising out of stock dividends, splits or combination or business combinationsIsraeli Subsidiaries); (ix6) the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company held dividends paid by any of the Company’s (or any of its Restricted Subsidiaries’) current or former directors or employees; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may not exceed the Fair Market Value thereof and furthermore may not exceed, in any twelve-month period since the Issue Date, $0.5 million (with unused amounts (with respect Borrower to the $0.5 million limit referred to above) in any 12-month period after such date being permitted to be carried over into succeeding 12-month periods); provided, further, that the amounts in any such 12-month period may be increased by an amount not to exceed (1) the cash proceeds received by the Company or any of its Restricted Subsidiaries from the sale of the Company’s Equity Interests (other than Disqualified Stock) to any such directors or employees that occurs after the Issue Date (provided that the amount of such cash proceeds utilized for any such repurchase, retirement or other acquisition or retirement will not increase the amount available for Restricted Payments under clause (iii) of the immediately preceding paragraph and to the extent such proceeds have not otherwise been applied to the payment of Restricted Payments) plus (2) the cash proceeds of key man life insurance policies received by the Company and its Restricted Subsidiaries after the Issue Date; (x) the purchase or redemption of any Acquired Subordinated Indebtedness of the Company or any of its Restricted Subsidiaries, by application of (i) cash provided from operations in the ordinary course of business or (ii) proceeds from borrowings under the revolving portion of any Credit Facility (so long as within 30 days prior to such purchase or redemption, a corresponding amount of borrowings under the revolving portion of such Credit Facility was repaid from cash provided from operations in the ordinary course of business); provided, in any such case, that the Company is able to incur an additional $1.00 of Indebtedness pursuant to Section 5.5(a) hereof after giving effect to such purchase or redemption; provided, further, that this clause (x) shall not permit the application of any proceeds from any other borrowings under any Credit Facility to effect any such purchase or redemption; and (xi) so long as no Default has occurred and is continuing or would be caused thereby, other Restricted Payments Parent in an aggregate amount not to exceed $5.0 25.0 million since so long as the Issue Date. The amount Parent substantially contemporaneously uses the proceeds thereof to purchase shares of all Restricted Payments (Parent Common Stock from Persons other than cash) shall be the Fair Market Value on the date of such Restricted Payment Affiliates of the asset(s) or securities proposed to be paid, transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to such Restricted Payment. The Fair Market Value of any cash Restricted Payment shall be its face amount, and the Fair Market Value of any non-cash Restricted Payment exceeding $5.0 million shall be determined conclusively by two senior officers of the Company acting in good faith whose conclusions with respect thereto shall be set forth in an Officers’ Certificate delivered to the HoldersBorrower; provided, however, that if such dividends are paid by Borrower prior to March 31, 2000; (7) Investments by the Fair Market Value Borrower or any Restricted Subsidiary that is a Guarantor constituting vendor financing provided to support the local operations of the Israeli Subsidiaries in amount not to exceed $60.0 million outstanding at any time; (8) Investments in the Mexican Subsidiaries to fund their development of certain manufacturing facilities in Mexico in an aggregate amount not to exceed $80.0 million; provided that until January 31, 2001, the amount of such Investments shall not exceed $40.0 million in the aggregate; and provided, further, that such amount will either be funded (A) through Indebtedness incurred by the Mexican Subsidiaries or (B) through intercompany loans made by the Borrower, on terms satisfactory to the Administrative Agent, provided that (i) such intercompany loans shall be secured, on terms reasonably acceptable to the Administrative Agent, by all of the assets of the Mexican Subsidiaries, including those contemplated to be built or constructed, and (ii) the Mexican Subsidiaries shall become Guarantors (it being understood that the Guarantee of the Mexican Subsidiaries shall be subject to release pursuant to Section 12.08) or (C) through the investment of up to $16.0 million of equity or other similar contributions or (D) through a combination of (A), (B) and (C); (9) Investments in Cables of Zion constituting the outstanding equity interests of Cables of Zion that are not held by the Borrower or any Subsidiary on the Borrowing Date; provided that the aggregate consideration therefor does not exceed $25.0 million; (10) so long as no Default or Event of Default shall have occurred or be continuing or would result therefrom, dividends paid by the Borrower to the Parent not earlier than the second Business Day prior to the due date of any non-cash Restricted Payment exceeds $10.0 million, scheduled interest payment on the Debentures so long as the proceeds thereof are actually used at the time of such Fair Market Value shall be determined conclusively dividend payment by the Board Parent to pay, on the scheduled quarterly interest payment date, interest accrued on the Debentures; (11) dividends paid by the Borrower to the Parent (x) so long as the proceeds thereof are used at the time of Directors such dividend payment by the Parent to pay expenses for administrative, legal and accounting services provided by third parties that are reasonable and customary and incurred in the ordinary course of business by a publicly traded company for such professional services or to pay franchise and similar costs and (y) in an amount not to exceed the "additional amount" for any four consecutive fiscal quarters provided that such amount is used at the time of such dividend payment to pay actual expenses of the Company Parent (including employment expenses) and set forth in a board resolution, and a certified copy the "additional amount" is otherwise treated as an operating expense of such board resolution shall be delivered to the Holders. For Borrower for purposes of determining compliance with this Section 5.5, in the event that a Restricted Payment meets financial covenants contained herein; "additional amount" for any such period shall mean an amount not to exceed the criteria sum of more than one of the exceptions described in (i) through $2.5 million and (xiii) above or that portion of the fee permitted to be paid by Section 6.08(b)(vi) in such period that is entitled not actually paid; (12) dividends paid by the Borrower to the Parent so long as the proceeds thereof are used at the time of such dividend payment by the Parent to make the payments permitted to be made by the Borrower pursuant to Section 5.5(aand in accordance with Sections 6.08(b)(v) hereofand (vi); (13) the performance by the Borrower and the Restricted Subsidiaries of their obligations under the Essex Funding Agreement or similar obligations under a Receivables Financing Agreement; (14) Investments in the Norwegian Subsidiaries to fund the acquisition of the Norsk Kabel Assets in an amount not to exceed $45.0 million; provided, that such amount will either be funded (A) through Indebtedness incurred by the Norwegian Subsidiaries or (B) through intercompany loans made by the Borrower, on terms satisfactory to the Administrative Agent, provided that such intercompany loans shall be secured, on terms reasonably acceptable to the Administrative Agent, by all of the assets of the Norwegian Subsidiaries, including those contemplated to be built or constructed, or (C) through the investment of equity or other similar contributions or (D) through a combination of (A), (B) and (C); and (15) so long as no Default shall have occurred or be continuing or would result therefrom, the Company shallBorrower and its Restricted Subsidiaries that are Guarantors may make new or additional cash Investments (including, without limitation, the Investments contemplated by Section 6.01(xv)) in its sole discretionan amount not to exceed $25.0 million outstanding at any one time (giving effect to any repayments in cash, classify but without giving effect to any distributions or profits thereon, write-downs or non-cash payments). (c) Not later than 50 days after the end of any fiscal quarter (100 days in the case of the last fiscal quarter of the fiscal year) during which any Restricted Payment in excess of $10.0 million is made, the Borrower shall deliver to the Administrative Agent an Officers' Certificate stating that all Restricted Payments made during such Restricted Paymentfiscal quarter were permitted and setting forth the basis upon which the calculations required by this covenant were computed, together with a copy of any opinion or later classify, reclassify or re-divide all or a portion of such Restricted Payment, in any manner that complies with appraisal required by this Section 5.5Agreement.

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 or any of its Restricted Subsidiaries’ 's Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company or any of its Restricted Subsidiaries) or to the direct or indirect holders of the Company’s or any of its Restricted Subsidiaries’ 's Equity Interests in their capacity as such (other than dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company and other than dividends or distributions payable to the Company or a Restricted Subsidiary of the Company); (ii) purchase, redeem or otherwise acquire or retire for value (including including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or any direct or indirect parent of the Company (other than any such Equity Interests owned by the Company or any Restricted Subsidiary of the Company); (iii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Subordinated IndebtednessIndebtedness that is subordinated to the Notes or the Subsidiary Guarantees, except a payment of interest or principal at the Stated Maturity thereof; or (iv) make any Restricted Investment (all such payments and other actions set forth in these 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: (i) no Default or Event of Default has shall have occurred and is be continuing or would occur as a consequence of such Restricted Paymentthereof; (ii) the Company would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable fourFour-quarter periodQuarter Period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 5.7 4.09 hereof; and (iii) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries since the Issue Date after December 29, 2002 (excluding Restricted Payments permitted by clauses (ii), (iii), (iv), (v), (vi), (vii), (viii), (ix) and (xi) of paragraph (b) of this Section 5.5the next succeeding paragraph), is less than the sum, without duplication, of: (1A) 50% of the Consolidated Net Income of the Company for the period (taken as one accounting period) from the beginning of the first fiscal quarter during which the Issue Date occurs commencing after December 29, 2002 to the end of the Company’s 's most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit); , plus (2B) 100% of (A)(i) the aggregate net cash proceeds and (ii) the Fair Market Value of (x) marketable securities (other than marketable securities of the Company), (y) Capital Stock of a Person (other than the Company or an Affiliate of the Company) engaged in a Permitted Business and (z) other assets used in any Permitted Business, in the case of clauses (i) and (ii), received by the Company (other than from a Restricted Subsidiary) since the Issue Date December 29, 2002 as a contribution to its common equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified Stock) or from the issue or sale of convertible or exchangeable Disqualified Stock or convertible or exchangeable debt securities of the Company that have been converted into or exchanged for such Equity Interests (other than Equity Interests (or Disqualified Stock or debt securities) sold to a Subsidiary of the Company), (B) the amount by which Indebtedness of the Company or any Restricted Subsidiary is reduced on the Company’s consolidated balance sheet upon the conversion or exchange after the Issue Date of any such Indebtedness into or for Equity Interests (other than Disqualified Stock) of the Company, and plus (C) to the aggregate net extent that any Restricted Investment that was made after December 29, 2002 is sold for cash proceedsor otherwise liquidated or repaid for cash, the lesser of (i) the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any, received by the Company or any of its Restricted Subsidiaries upon any conversion or exchange described in clause (1) or (2) above; plus (3) with respect to Restricted Investments made by the Company and its Restricted Subsidiaries after the Issue Date, an amount equal to the sum of (A) the net reduction in such Restricted Investments in any Person resulting from (i) repayments of loans or advances, or other transfers of assets, in each case to the Company or any Restricted Subsidiary, (ii) other repurchases, repayments or redemptions the initial amount of such Restricted Investments, (iii) the sale of any such Restricted Investment or (iv) the release of any Guarantee (except to the extent any amounts are paid under such Guarantee) plus (B) all amounts representing the return of capital (excluding dividends and distributions) to the Company or any Restricted Subsidiary in respect of such Restricted Investment plus (C) with respect to any Unrestricted Subsidiary that the Board of Directors of the Company redesignates as a Restricted Subsidiary, the Fair Market Value of the Investment in such Subsidiary held by the Company or any of its Restricted Subsidiaries at the time of such redesignation. (b) Investment. The preceding provisions of Section 5.5(a) hereof will not prohibit: (i) the payment of any dividend or the consummation of any irrevocable redemption within 60 days after the date of declaration of the dividend or giving of the redemption notice, as the case may be, if at the date of declaration or notice, the dividend or redemption payment would have complied with the provisions of this Agreement and the Notes; (ii) the making of any Restricted Payment in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Subsidiary of the Company) of, Equity Interests of the Company (other than Disqualified Stock) or from the substantially concurrent contribution (other than by a Subsidiary of the Company) of capital to the Company in respect of its Equity Interests (other than Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such Restricted Payment will be excluded from clause (iii)(2) of Section 5.5(a) hereof; (iii) the repurchase, redemption, defeasance or other acquisition or retirement for value of Subordinated Indebtedness (including the payment of any required premium and any fees and expenses incurred in connection with such repurchase, redemption, defeasance or other acquisition) with the net cash proceeds from a substantially concurrent incurrence of Permitted Refinancing Indebtedness; provided that the amount of any such net cash proceeds that are utilized for any such Restricted Payment will be excluded from clause (iii)(2) of Section 5.5(a) hereof; (iv) the payment of any dividend (or, in the case of any partnership or limited liability company, any similar distribution) by a Restricted Subsidiary of the Company to the holders of the Equity Interests (other than Disqualified Stock) of such Restricted Subsidiary; provided that such dividend or similar distribution is paid to all holders of such Equity Interests on a pro rata basis based on their respective holdings of such Equity Interests; (v) the payment of any dividend on the EB-5 Preferred Stock; (vi) the repurchase, redemption or other acquisition or retirement of Equity Interests deemed to occur upon the exercise or exchange of stock options, warrants or other similar rights to the extent such Equity Interests represent a portion of the exercise or exchange price of those stock options, and the repurchase, redemption or other acquisition or retirement of Equity Interests made in lieu of withholding taxes resulting from the exercise or exchange of stock options, warrants or other similar rights; (vii) so long as no Default has occurred and is continuing or would be caused thereby, the declaration and payment of regularly scheduled or accrued dividends to holders of any class or series of Disqualified Stock of the Company or any Restricted Subsidiary of the Company or any class or series of preferred stock of a Restricted Subsidiary of the Company, in each case issued on or after the Issue Date in accordance with the Fixed Charge Coverage Ratio test described in Section 5.7 hereof; (viii) payments to fund the purchase by the Company of fractional shares arising out of stock dividends, splits or combination or business combinations; (ix) the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company held by any of the Company’s (or any of its Restricted Subsidiaries’) current or former directors or employees; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may not exceed the Fair Market Value thereof and furthermore may not exceed, in any twelve-month period since the Issue Date, $0.5 million (with unused amounts (with respect to the $0.5 million limit referred to above) in any 12-month period after such date being permitted to be carried over into succeeding 12-month periods); provided, further, that the amounts in any such 12-month period may be increased by an amount not to exceed (1) the cash proceeds received by the Company or any of its Restricted Subsidiaries from the sale of the Company’s Equity Interests (other than Disqualified Stock) to any such directors or employees that occurs after the Issue Date (provided that the amount of such cash proceeds utilized for any such repurchase, retirement or other acquisition or retirement will not increase the amount available for Restricted Payments under clause (iii) of the immediately preceding paragraph and to the extent such proceeds have not otherwise been applied to the payment of Restricted Payments) plus (2) the cash proceeds of key man life insurance policies received by the Company and its Restricted Subsidiaries after the Issue Date; (x) the purchase or redemption of any Acquired Subordinated Indebtedness of the Company or any of its Restricted Subsidiaries, by application of (i) cash provided from operations in the ordinary course of business or (ii) proceeds from borrowings under the revolving portion of any Credit Facility (so long as within 30 days prior to such purchase or redemption, a corresponding amount of borrowings under the revolving portion of such Credit Facility was repaid from cash provided from operations in the ordinary course of business); provided, in any such case, that the Company is able to incur an additional $1.00 of Indebtedness pursuant to Section 5.5(a) hereof after giving effect to such purchase or redemption; provided, further, that this clause (x) shall not permit the application of any proceeds from any other borrowings under any Credit Facility to effect any such purchase or redemption; and (xi) so long as no Default has occurred and is continuing or would be caused thereby, other Restricted Payments in an aggregate amount not to exceed $5.0 million since the Issue Date. The amount of all Restricted Payments (other than cash) shall be the Fair Market Value on the date of such Restricted Payment of the asset(s) or securities proposed to be paid, transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to such Restricted Payment. The Fair Market Value of any cash Restricted Payment shall be its face amount, and the Fair Market Value of any non-cash Restricted Payment exceeding $5.0 million shall be determined conclusively by two senior officers of the Company acting in good faith whose conclusions with respect thereto shall be set forth in an Officers’ Certificate delivered to the Holders; provided, however, that if the Fair Market Value of any non-cash Restricted Payment exceeds $10.0 million, such Fair Market Value shall be determined conclusively by the Board of Directors of the Company and set forth in a board resolution, and a certified copy of such board resolution shall be delivered to the Holders. For purposes of determining compliance with this Section 5.5, in the event that a Restricted Payment meets the criteria of more than one of the exceptions described in (i) through (xi) above or is entitled to be made pursuant to Section 5.5(a) hereof, the Company shall, in its sole discretion, classify such Restricted Payment, or later classify, reclassify or re-divide all or a portion of such Restricted Payment, in any manner that complies with this Section 5.5.

Restricted Payments. (a) The Company will notAt any time that Essent fails to maintain an Investment Grade Rating, and will not permit any of its Restricted Subsidiaries to, directly or indirectly: (i) 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 Capital Stock of any Group Member, whether now or hereafter outstanding, or make any other payment distribution in respect thereof, either directly or distribution on account indirectly, whether in cash or property or in obligations of the Company’s or any of its Restricted Subsidiaries’ Equity Interests Group Member (includingcollectively, without limitation, any payment in connection with any merger or consolidation involving the Company or any of 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 and other than dividends or distributions payable to the Company or a 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 any direct or indirect parent of the Company; (iii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Subordinated Indebtedness, except a payment of interest or principal at the Stated Maturity thereof; or (iv) make any Restricted Investment (all such payments and other actions set forth in these clauses (i) through (iv) above being collectively referred to as “Restricted Payments”), unless, at the time of and after giving effect to such Restricted Paymentexcept that: (ia) any Subsidiary may make Restricted Payments ratably to the holders of its Capital Stock; (b) Essent may declare and pay dividends with respect to its Capital Stock payable solely in additional shares of its Capital Stock (other than Disqualified Capital Stock); (c) Essent may make Restricted Payments in the form of (x) equity pursuant to and in accordance with stock option plans or other benefit plans for management or employees of Essent and its Subsidiaries and (y) the cashless purchase of shares of its Capital Stock awarded under such plans from such employees to offset tax liabilities and the payment of any taxes associated with the vesting of such shares; (d) the payment by Essent of any dividend within 60 days after the date of declaration thereof, if on the date of declaration such payment would have complied with the provisions of this Section 6.7; and (e) so long as no Default or Event of Default has shall have occurred and is be continuing or would occur as a consequence of such result therefrom, Essent may make other Restricted Payment; (ii) the Company wouldPayments; provided, that at the time of making any such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 5.7 hereof; and (iii) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries since the Issue Date (excluding Restricted Payments permitted by clauses (ii), (iii), (iv), (v), (vi), (vii), (viii) and (xi) of paragraph (b) of this Section 5.5), is less than the sum, without duplication, of: (1) 50% of the Consolidated Net Income of the Company for the period (taken as one accounting period) from the beginning of the fiscal quarter during which the Issue Date occurs to the end of the Company’s most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit); plus (2) 100% of (A)(i) the aggregate net cash proceeds and (ii) the Fair Market Value of (x) marketable securities (other than marketable securities of the Company), (y) Capital Stock of a Person (other than the Company or an Affiliate of the Company) engaged in a Permitted Business and (z) other assets used in any Permitted Business, in the case of clauses (i) and (ii), received by the Company since the Issue Date as a contribution to its common equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified Stock) or from the issue or sale of convertible or exchangeable Disqualified Stock or convertible or exchangeable debt securities of the Company that have been converted into or exchanged for such Equity Interests (other than Equity Interests (or Disqualified Stock or debt securities) sold to a Subsidiary of the Company), (B) the amount by which Indebtedness of the Company or any Restricted Subsidiary is reduced on the Company’s consolidated balance sheet upon the conversion or exchange after the Issue Date of any such Indebtedness into or for Equity Interests (other than Disqualified Stock) of the Company, and (C) the aggregate net cash proceeds, if any, received by the Company or any of its Restricted Subsidiaries upon any conversion or exchange described in clause (1) or (2) above; plus (3) with respect to Restricted Investments made by the Company and its Restricted Subsidiaries after the Issue Date, an amount equal to the sum of (A) the net reduction in such Restricted Investments in any Person resulting from (i) repayments of loans or advances, or other transfers of assets, in each case to the Company or any Restricted Subsidiary, (ii) other repurchases, repayments or redemptions of such Restricted Investments, (iii) the sale of any such Restricted Investment or (iv) the release of any Guarantee (except to the extent any amounts are paid under such Guarantee) plus (B) all amounts representing the return of capital (excluding dividends and distributions) to the Company or any Restricted Subsidiary in respect of such Restricted Investment plus (C) with respect to any Unrestricted Subsidiary that the Board of Directors of the Company redesignates as a Restricted Subsidiary, the Fair Market Value of the Investment in such Subsidiary held by the Company or any of its Restricted Subsidiaries at the time of such redesignation. (b) The provisions of Section 5.5(a) hereof will not prohibit: (i) the payment of any dividend or the consummation of any irrevocable redemption within 60 days after the date of declaration of the dividend or giving of the redemption notice, as the case may be, if at the date of declaration or notice, the dividend or redemption payment would have complied with the provisions of this Agreement and the Notes; (ii) the making of any Restricted Payment in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Subsidiary of the Company) of, Equity Interests of the Company (other than Disqualified Stock) or from the substantially concurrent contribution (other than by a Subsidiary of the Company) of capital to the Company in respect of its Equity Interests (other than Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such Restricted Payment will be excluded from clause (iii)(2) of Section 5.5(a) hereof; (iii) the repurchase, redemption, defeasance or other acquisition or retirement for value of Subordinated Indebtedness (including the payment of any required premium and any fees and expenses incurred in connection with such repurchase, redemption, defeasance or other acquisition) with the net cash proceeds from a substantially concurrent incurrence of Permitted Refinancing Indebtedness; provided that the amount of any such net cash proceeds that are utilized for any such Restricted Payment will be excluded from clause (iii)(2) of Section 5.5(a) hereof; (iv) the payment of any dividend (or, in the case of any partnership or limited liability company, any similar distribution) by a Restricted Subsidiary of the Company to the holders of the Equity Interests (other than Disqualified Stock) of such Restricted Subsidiary; provided that such dividend or similar distribution is paid to all holders of such Equity Interests on a pro rata basis based on their respective holdings of such Equity Interests; (v) the payment of any dividend on the EB-5 Preferred Stock; (vi) the repurchase, redemption or other acquisition or retirement of Equity Interests deemed to occur upon the exercise or exchange of stock options, warrants or other similar rights to the extent such Equity Interests represent a portion of the exercise or exchange price of those stock options, and the repurchase, redemption or other acquisition or retirement of Equity Interests made in lieu of withholding taxes resulting from the exercise or exchange of stock options, warrants or other similar rights; (vii) so long as no Default has occurred and is continuing or would be caused thereby, the declaration and payment of regularly scheduled or accrued dividends to holders of any class or series of Disqualified Stock of the Company or any Restricted Subsidiary of the Company or any class or series of preferred stock of a Restricted Subsidiary of the Company, in each case issued on or after the Issue Date in accordance with the Fixed Charge Coverage Ratio test described in Section 5.7 hereof; (viii) payments to fund the purchase by the Company of fractional shares arising out of stock dividends, splits or combination or business combinations; (ix) the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company held by any of the Company’s (or any of its Restricted Subsidiaries’) current or former directors or employees; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may not exceed the Fair Market Value thereof and furthermore may not exceed, in any twelve-month period since the Issue Date, $0.5 million (with unused amounts (with respect to the $0.5 million limit referred to above) in any 12-month period after such date being permitted to be carried over into succeeding 12-month periods); provided, further, that the amounts in any such 12-month period may be increased by an amount not to exceed (1) the cash proceeds received by the Company or any of its Restricted Subsidiaries from the sale of the Company’s Equity Interests (other than Disqualified Stock) to any such directors or employees that occurs after the Issue Date (provided that the amount of such cash proceeds utilized for any such repurchase, retirement or other acquisition or retirement will not increase the amount available for Restricted Payments under clause (iii) of the immediately preceding paragraph and to the extent such proceeds have not otherwise been applied to the payment of Restricted Payments) plus (2) the cash proceeds of key man life insurance policies received by the Company and its Restricted Subsidiaries after the Issue Date; (x) the purchase or redemption of any Acquired Subordinated Indebtedness of the Company or any of its Restricted Subsidiaries, by application of (i) cash provided from operations in the ordinary course of business or (ii) proceeds from borrowings under the revolving portion of any Credit Facility (so long as within 30 days prior to such purchase or redemption, a corresponding amount of borrowings under the revolving portion of such Credit Facility was repaid from cash provided from operations in the ordinary course of business); provided, in any such case, that the Company is able to incur an additional $1.00 of Indebtedness pursuant to Section 5.5(a) hereof after giving effect to such purchase or redemption; provided, further, that this clause (x) shall not permit the application of any proceeds from any other borrowings under any Credit Facility to effect any such purchase or redemption; and (xi) so long as no Default has occurred and is continuing or would be caused thereby, other Restricted Payments in an aggregate amount not to exceed $5.0 million since the Issue Date. The amount of all Restricted Payments (other than cash) shall be the Fair Market Value on the date of such Restricted Payment of the asset(s) or securities proposed to be paid, transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to such Restricted Payment. The Fair Market Value of any cash Restricted Payment Payments, the Borrowers shall be its face amount, and the Fair Market Value of any non-cash Restricted Payment exceeding $5.0 million shall be determined conclusively by two senior officers of the Company acting in good faith whose conclusions with respect thereto shall be set forth in an Officers’ Certificate delivered to the Holders; provided, however, that if the Fair Market Value of any non-cash Restricted Payment exceeds $10.0 million, such Fair Market Value shall be determined conclusively by the Board of Directors of the Company and set forth in a board resolution, and a certified copy of such board resolution shall be delivered to the Holders. For purposes of determining compliance with this the requirements of Section 5.5, in the event that a Restricted Payment meets the criteria of more than one of the exceptions described in (i) through (xi) above or is entitled to be made pursuant to Section 5.5(a) hereof, the Company shall, in its sole discretion, classify such Restricted Payment, or later classify, reclassify or re-divide all or a portion of such Restricted Payment, in any manner that complies with this Section 5.56.1.

Restricted Payments. (a) The Company Issuers will not, and will not permit any of its their Restricted Subsidiaries to, directly or indirectly: (i1) declare or pay any dividend or make any other payment or distribution on account of the Companyany Issuer’s or any of its their Restricted Subsidiaries’ Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company an Issuer or any of its Restricted Subsidiaries) or to the direct or indirect holders of the Company’s Issuers’ or any of its their 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 an Issuer and other than dividends or distributions payable to the Company an Issuer or a Restricted Subsidiary of the Companyan Issuer); (ii2) purchase, redeem redeem, defease or otherwise acquire or retire for value (including including, without limitation, in connection with any merger or consolidation involving the Companyan Issuer) any Equity Interests of the Company an Issuer or any direct or indirect parent of the Companyan Issuer (other than Equity Interests owned by an Issuer or a Restricted Subsidiary); (iii3) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value value, any Subordinated IndebtednessIndebtedness of an Issuer or any Guarantor that is contractually subordinated to the Notes or to any Note Guarantee (excluding any intercompany Indebtedness between or among the Issuers and any of their Restricted Subsidiaries), except a payment of interest or principal at or within one year of the Stated Maturity thereof; or (iv4) make any Restricted Investment Investment; (all such payments and other actions set forth in these clauses (i1) through (iv4) above being collectively referred to as “Restricted Payments”), unless, at the time of and after giving effect to such Restricted Payment: (i1) no Default or Event of Default has occurred and is continuing or would occur as a consequence of such Restricted Payment; (ii2) the Company Issuers would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 5.7 hereof4.09(a); and (iii3) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company Issuers and its their Restricted Subsidiaries since the Issue Date (excluding Restricted Payments permitted by clauses (iiSection 4.07(b)(2), (iii3), (iv4), (v6), (vi7), (vii)8), (viii10) and (xi) of paragraph (b) of this Section 5.511), is less than the sum, without duplication, of: (1A) 50100% of the Consolidated Net Income Cash Flow (or if Consolidated Cash Flow shall be a deficit, minus 100% of the Company such deficit) for the period (taken as one accounting period) from the beginning of the fiscal quarter during which the Issue Date occurs January 1, 2013 to the end of the Company’s Issuers’ most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficitPayment, less 100% the product of such deficit)2.0 times the Issuers’ consolidated interest expense determined in accordance with GAAP for the same period; plus (2B) 100% of (A)(i) the aggregate net cash proceeds and (ii) the Fair Market Value fair market value of (x) marketable securities (and other than marketable securities of the Company), (y) Capital Stock of a Person (other than the Company or an Affiliate of the Company) engaged in a Permitted Business and (z) other assets used in any Permitted Business, in the case of clauses (i) and (ii), property received by the Company an Issuer since the Issue Date as a contribution to its common equity capital or from the issue or sale of Equity Interests of the Company an Issuer (other than Disqualified Stock) or from the issue or sale of convertible or exchangeable Disqualified Stock or convertible or exchangeable debt securities of the Company an Issuer that have been converted into or exchanged for such Equity Interests (other than contributions from and Equity Interests (or Disqualified Stock or debt securities) sold to a Subsidiary of an Issuer); plus (C) to the Company), (B) the amount by which Indebtedness of the Company or extent that any Restricted Subsidiary is reduced on the Company’s consolidated balance sheet upon the conversion or exchange Investment that was made after the Issue Date is sold for cash or otherwise liquidated or repaid for cash, the lesser of any such Indebtedness into or for Equity Interests (other than Disqualified Stock) of the Company, and (Ci) the aggregate net cash proceedsreturn of capital with respect to such Restricted Investment (less the cost of disposition, if any, received by ) and (ii) the Company or any initial amount of its such Restricted Subsidiaries upon any conversion or exchange described in clause (1) or (2) aboveInvestment; plus (3D) with respect to the extent that any Unrestricted Subsidiary of the Issuers designated as such after the Issue Date is redesignated as a Restricted Investments made by the Company and its Restricted Subsidiaries Subsidiary after the Issue Date, an amount equal to the sum lesser of (A) the net reduction in such Restricted Investments in any Person resulting from (i) repayments of loans or advances, or other transfers of assets, in each case to the Company or any Restricted Subsidiary, (ii) other repurchases, repayments or redemptions of such Restricted Investments, (iii) the sale of any such Restricted Investment or (iv) the release of any Guarantee (except to the extent any amounts are paid under such Guarantee) plus (B) all amounts representing the return of capital (excluding dividends and distributions) to the Company or any Restricted Subsidiary in respect of such Restricted Investment plus (C) with respect to any Unrestricted Subsidiary that the Board of Directors of the Company redesignates as a Restricted Subsidiary, the Fair Market Value of the Issuers’ Investment in such Subsidiary held by as of the Company or any of its Restricted Subsidiaries at the time date of such redesignationredesignation or (ii) such Fair Market Value as of the date on which such Subsidiary was originally designated as an Unrestricted Subsidiary after the Issue Date. (b) The provisions of Section 5.5(a4.07(a) hereof will not prohibit: (i1) the payment of any dividend or the consummation of any irrevocable redemption within 60 days after the date of declaration of the dividend or giving of the redemption notice, as the case may be, if at the date of declaration or notice, the dividend or redemption payment would have complied with the provisions of this Agreement and the NotesIndenture; (ii2) the making of any Restricted Payment in exchange for, or out of the net cash proceeds of the substantially concurrent issuance or sale (other than to a Subsidiary of the Companyan Issuer) of, Equity Interests of the Company an Issuer (other than Disqualified Stock) or from the substantially concurrent contribution (other than by a Subsidiary of the Company) of capital to the Company in respect common equity capital of its Equity Interests (other than Disqualified Stock)Holdings; provided that the amount of any such net cash proceeds that are utilized for any such Restricted Payment will be excluded from clause (iii)(23)(B) of Section 5.5(a) hereof4.07(a); (iii3) the repurchase, redemption, defeasance or other acquisition or retirement for value of Subordinated Indebtedness (including the payment of any required premium and Issuer or any fees and expenses incurred Guarantor that is contractually subordinated to the Notes or to any Note Guarantee in connection with such repurchaseexchange for, redemption, defeasance or other acquisition) with the net cash proceeds from a substantially concurrent incurrence of Permitted Refinancing Indebtedness; provided that the amount of any such net cash proceeds that are utilized for any such Restricted Payment will be excluded from clause (iii)(2) of Section 5.5(a) hereof; (iv4) the payment of any dividend (or, in the case of any partnership or limited liability company, any similar distribution) by a Restricted Subsidiary of the Company an Issuer to the holders of the Equity Interests (other than Disqualified Stock) of such Restricted Subsidiary; provided that such dividend or similar distribution is paid to all holders of such its Equity Interests on a pro rata basis based on their respective holdings of such Equity Interestsbasis; (v) the payment of any dividend on the EB-5 Preferred Stock; (vi) the repurchase, redemption or other acquisition or retirement of Equity Interests deemed to occur upon the exercise or exchange of stock options, warrants or other similar rights to the extent such Equity Interests represent a portion of the exercise or exchange price of those stock options, and the repurchase, redemption or other acquisition or retirement of Equity Interests made in lieu of withholding taxes resulting from the exercise or exchange of stock options, warrants or other similar rights; (vii) so long as no Default has occurred and is continuing or would be caused thereby, the declaration and payment of regularly scheduled or accrued dividends to holders of any class or series of Disqualified Stock of the Company or any Restricted Subsidiary of the Company or any class or series of preferred stock of a Restricted Subsidiary of the Company, in each case issued on or after the Issue Date in accordance with the Fixed Charge Coverage Ratio test described in Section 5.7 hereof; (viii) payments to fund the purchase by the Company of fractional shares arising out of stock dividends, splits or combination or business combinations; (ix5) the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company an Issuer or any Restricted Subsidiary of the Company an Issuer held by any current or former officer, director or employee (or a permitted transferee therefrom) of the Company’s (an Issuer or any of its Restricted Subsidiaries’) current Subsidiaries pursuant to any equity subscription agreement, stock option agreement, shareholders’ agreement or former directors or employeessimilar agreement; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests (excluding amounts representing the cancellation of Indebtedness owed to an Issuer or a Restricted Subsidiary in connection with a repurchase of Equity Interests of an Issuer or a Restricted Subsidiary or funded by “key-man” life insurance policies) may not exceed the Fair Market Value thereof and furthermore may not exceed, $2.0 million in any twelve-month period since the Issue Date, $0.5 million (with unused amounts (with respect to the $0.5 million limit referred to above) in any 12-month period after such date being permitted to be carried over into succeeding 12-month periods); provided, further, that the amounts in any such 12-month period may be increased by an amount not to exceed (1) the cash proceeds received by the Company or any of its Restricted Subsidiaries from the sale of the Company’s Equity Interests (other than Disqualified Stock) to any such directors or employees that occurs after the Issue Date (provided that the amount of such cash proceeds utilized for any such repurchase, retirement or other acquisition or retirement will not increase the amount available for Restricted Payments under clause (iii) of the immediately preceding paragraph and to the extent such proceeds have not otherwise been applied to the payment of Restricted Payments) plus (2) the cash proceeds of key man life insurance policies received by the Company and its Restricted Subsidiaries after the Issue Dateperiod; (x6) the purchase or redemption repurchases, redemptions and other acquisitions and retirements of any Acquired Subordinated Indebtedness Capital Stock deemed to occur upon exercise of the Company or any of its Restricted Subsidiaries, by application of (i) cash provided from operations in the ordinary course of business or (ii) proceeds from borrowings under the revolving portion of any Credit Facility (so long as within 30 days prior to stock options if such purchase or redemption, a corresponding amount of borrowings under the revolving portion of such Credit Facility was repaid from cash provided from operations in the ordinary course of business); provided, in any such case, that the Company is able to incur an additional $1.00 of Indebtedness pursuant to Section 5.5(a) hereof after giving effect to such purchase or redemption; provided, further, that this clause (x) shall not permit the application of any proceeds from any other borrowings under any Credit Facility to effect any such purchase or redemption; and (xi) so long as no Default has occurred and is continuing or would be caused thereby, other Restricted Payments in an aggregate amount not to exceed $5.0 million since the Issue Date. The amount of all Restricted Payments (other than cash) shall be the Fair Market Value on the date of such Restricted Payment of the asset(s) or securities proposed to be paid, transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to such Restricted Payment. The Fair Market Value of any cash Restricted Payment shall be its face amount, and the Fair Market Value of any non-cash Restricted Payment exceeding $5.0 million shall be determined conclusively by two senior officers of the Company acting in good faith whose conclusions with respect thereto shall be set forth in an Officers’ Certificate delivered to the Holders; provided, however, that if the Fair Market Value of any non-cash Restricted Payment exceeds $10.0 million, such Fair Market Value shall be determined conclusively by the Board of Directors of the Company and set forth in a board resolution, and a certified copy of such board resolution shall be delivered to the Holders. For purposes of determining compliance with this Section 5.5, in the event that a Restricted Payment meets the criteria of more than one of the exceptions described in (i) through (xi) above or is entitled to be made pursuant to Section 5.5(a) hereof, the Company shall, in its sole discretion, classify such Restricted Payment, or later classify, reclassify or re-divide all or Capital Stock represents a portion of the exercise price of such Restricted Paymentoptions, and repurchases, redemptions and other acquisitions and retirements of Capital Stock made in lieu of withholding taxes in connection with any manner that complies with this Section 5.5.exercise or exchange of stock options;

Restricted Payments. (a) The Parent and the Company will not, and will not permit any of its their respective Restricted Subsidiaries to, directly or indirectly: (i1) declare or pay any dividend or make any other payment or distribution on account of the Parent’s, the Company’s or any of its their respective Restricted Subsidiaries’ Equity Interests (including, without limitation, any payment in connection with any merger merger, amalgamation or consolidation involving the Parent, the Company or any of its their Restricted Subsidiaries) or to the direct or indirect holders of the Parent’s, the Company’s or any of its their respective 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 and other than dividends or distributions payable to the Company or a Restricted Subsidiary of the CompanyGuarantor); (ii2) purchase, redeem or otherwise acquire or retire for value (including including, without limitation, in connection with any merger merger, amalgamation or consolidation involving the Company) any Equity Interests of the Company Parent, the Company, or any other direct or indirect parent of the Company; (iii3) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value value, any Subordinated IndebtednessIndebtedness of the Company or any Guarantor that is contractually subordinated to the Notes or to any Note Guarantee (excluding any intercompany Indebtedness between or among the Parent, the Company and any of its Restricted Subsidiaries), except a payment of interest thereon or principal at the Stated Maturity thereofrelated to such payment of interest or principal; or (iv4) make any Restricted Investment (all such payments and other actions set forth in these clauses (i1) through (iv4) above being collectively referred to as “Restricted Payments”), unless, at the time of and after giving effect to such Restricted Payment: (i1) no Default or Event of Default has occurred and is continuing or would occur as a consequence of such Restricted Payment; (ii2) the Company Parent would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 5.7 hereofTest; and (iii3) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Parent, the Company and its their Restricted Subsidiaries since the Issue Date date of this Indenture (excluding Restricted Payments permitted by clauses (ii2), (iii3), (iv4), (v6), (vi), (vii), (viii) and (xi7) of paragraph (b) of this Section 5.54.07), is less than the sum, without duplication, of: (1A) 50% of the Consolidated Net Income of the Company Parent for the period (taken as one accounting period) from the beginning of the fiscal quarter during which the Issue Date occurs ended March 31, 2012 to the end of the CompanyParent’s most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit); plus (2B) 100% of (A)(i) the aggregate net cash proceeds and (ii) the Fair Market Value of (x) marketable securities (other than marketable securities of the Company), (y) Capital Stock of a Person (other than the Company or an Affiliate of the Company) engaged in a Permitted Business and (z) other assets used in any Permitted Business, in the case of clauses (i) and (ii), received by the Parent or the Company since the Issue Date date of this Indenture as a contribution to its common equity capital or or, in the case of the Parent, from the issue or sale of Equity Interests of the Company Parent (other than Disqualified Stock) or from the issue or sale of convertible or exchangeable Disqualified Stock or convertible or exchangeable debt securities of the Company Parent that have been converted into or exchanged for such Equity Interests (other than Equity Interests (or Disqualified Stock or debt securities) sold to a Subsidiary of the CompanyParent), (B) the amount by which Indebtedness of the Company or any Restricted Subsidiary is reduced on the Company’s consolidated balance sheet upon the conversion or exchange after the Issue Date of any such Indebtedness into or for Equity Interests (other than Disqualified Stock) of the Company, and (C) the aggregate net cash proceeds, if any, received by the Company or any of its Restricted Subsidiaries upon any conversion or exchange described in clause (1) or (2) above; plus (3C) to the extent that any Restricted Investment that was made after the date of this Indenture is sold for cash or otherwise liquidated or repaid for cash, the lesser of (i) the cash return of capital with respect to such Restricted Investments made by Investment (less the cost of disposition, if any) and (ii) the initial amount of such Restricted Investment; plus (D) to the extent that any Unrestricted Subsidiary of the Parent or the Company and its Restricted Subsidiaries designated as such after the Issue Datedate of this Indenture is redesignated as a Restricted Subsidiary after the date of this Indenture, an amount equal to the sum lesser of (A) the net reduction in such Restricted Investments in any Person resulting from (i) repayments of loans or advances, or other transfers of assets, in each case to the Company or any Restricted Subsidiary, (ii) other repurchases, repayments or redemptions of such Restricted Investments, (iii) the sale of any such Restricted Investment or (iv) the release of any Guarantee (except to the extent any amounts are paid under such Guarantee) plus (B) all amounts representing the return of capital (excluding dividends and distributions) to the Company or any Restricted Subsidiary in respect of such Restricted Investment plus (C) with respect to any Unrestricted Subsidiary that the Board of Directors of the Company redesignates as a Restricted Subsidiary, the Fair Market Value of the Parent’s (direct or indirect) Investment in such Subsidiary held as of the date of such redesignation or (ii) such Fair Market Value as of the date on which such Subsidiary was originally designated as an Unrestricted Subsidiary after the date of this Indenture; plus (E) 50% of any dividends received by the Parent, the Company or any a Wholly-Owned Restricted Subsidiary of its Restricted Subsidiaries at the time Parent that is a Guarantor after the date of this Indenture from an Unrestricted Subsidiary, to the extent that such redesignationdividends were not otherwise included in the Consolidated Net Income of the Parent for such period. (b) The So long as no Default has occurred and is continuing or would be caused thereby, the provisions of Section 5.5(a4.07(a) hereof will not prohibit: (i1) the payment of any dividend or the consummation of any irrevocable redemption within 60 days after the date of declaration of the dividend or giving of the redemption notice, as the case may be, if at the date of declaration or notice, the dividend or redemption payment would have complied with the provisions of this Agreement and the NotesIndenture; (ii2) the making of any Restricted Payment in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Subsidiary of the CompanyParent) of, Equity Interests of the Parent or the Company (other than Disqualified Stock) or from the substantially concurrent contribution (other than by a Subsidiary of the Company) of common equity capital to the Company in respect of its Equity Interests (other than Disqualified Stock)Parent; provided that provided, that, the amount of any such net cash proceeds that are utilized for any such Restricted Payment will be excluded from clause (iii)(23)(B) of Section 5.5(a) 4.07 hereof; (iii3) the repurchase, redemption, defeasance or other acquisition or retirement for value of Subordinated Indebtedness (including of the payment of Company or any required premium and Guarantor that is contractually subordinated to the Notes or to any fees and expenses incurred in connection with such repurchase, redemption, defeasance or other acquisition) Note Guarantee with the net cash proceeds from a substantially concurrent incurrence of Permitted Refinancing Indebtedness; provided that the amount of any such net cash proceeds that are utilized for any such Restricted Payment will be excluded from clause (iii)(2) of Section 5.5(a) hereof; (iv4) the payment of any dividend (or, in the case of any partnership or limited liability company, any similar distribution) by a Restricted Subsidiary of the Company Parent to the holders of the Equity Interests (other than Disqualified Stock) of such Restricted Subsidiary; provided that such dividend or similar distribution is paid to all holders of such its Equity Interests on a pro rata basis based on their respective holdings of such Equity Interestsbasis; (v) the payment of any dividend on the EB-5 Preferred Stock; (vi5) the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Parent, the Company or any of the Restricted Subsidiaries held by any current or former officer, director or employee of the Parent, the Company or any of their Restricted Subsidiaries pursuant to any equity subscription agreement, stock option agreement, shareholders’ agreement or similar agreement; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may not exceed $3.0 million in any twelve-month period; (6) the repurchase of Equity Interests deemed to occur upon the exercise or exchange of stock options, warrants or other similar rights options to the extent such Equity Interests represent a portion of the exercise or exchange price of those stock options, and the repurchase, redemption or other acquisition or retirement of Equity Interests made in lieu of withholding taxes resulting from the exercise or exchange of stock options, warrants or other similar rights; (vii7) so long as no Default has occurred and is continuing or would be caused thereby, the declaration and payment of regularly scheduled or accrued dividends to holders of any class or series of Disqualified Stock of the Company or any Restricted Subsidiary of Parent, the Company or any class or series of preferred stock of a their Restricted Subsidiary of the Company, in each case Subsidiaries issued on or after the Issue Date date of this Indenture in accordance with the Fixed Charge Coverage Ratio test described in Section 5.7 hereofTest; (viii) payments to fund the purchase by the Company of fractional shares arising out of stock dividends8) any purchase, splits or combination or business combinations; (ix) the repurchase, redemption redemption, defeasance or other acquisition or retirement for value of any Equity Interests Subordinated Obligation of the Company or any Restricted Subsidiary (A) at a purchase price not greater than 101% of the Company held by any principal amount thereof in the event of a Change of Control in accordance with provisions similar to Section 4.15 hereof or (B) at a purchase price not greater than 100% of the Company’s (or any of its Restricted Subsidiaries’) current or former directors or employeesprincipal amount thereof in accordance with provisions similar to Section 4.10 hereof; provided that that, prior to or simultaneously with such purchase, repurchase, redemption, defeasance or other acquisition or retirement, the aggregate price paid for all such repurchasedCompany has made the Change of Control Offer or Asset Sale Offer, redeemedas applicable, acquired as provided in Section 4.15 or retired Equity Interests may not exceed the Fair Market Value thereof and furthermore may not exceed, in any twelve-month period since the Issue Date, $0.5 million (with unused amounts (Section 4.10 with respect to the $0.5 million limit referred to above) in any 12-month period after such date being permitted to be carried over into succeeding 12-month periods); provided, further, that Notes and has completed the amounts in any such 12-month period may be increased by an amount not to exceed (1) the cash proceeds received by the Company or any of its Restricted Subsidiaries from the sale of the Company’s Equity Interests (other than Disqualified Stock) to any such directors or employees that occurs after the Issue Date (provided that the amount of such cash proceeds utilized for any such repurchase, retirement or other acquisition or retirement will not increase the amount available for Restricted Payments under clause (iii) of the immediately preceding paragraph and to the extent such proceeds have not otherwise been applied to the payment of Restricted Payments) plus (2) the cash proceeds of key man life insurance policies received by the Company and its Restricted Subsidiaries after the Issue Date; (x) the purchase repurchase or redemption of any Acquired Subordinated Indebtedness all Notes validly tendered for payment in connection with such Change of the Company Control Offer or any of its Restricted Subsidiaries, by application of (i) cash provided from operations in the ordinary course of business or (ii) proceeds from borrowings under the revolving portion of any Credit Facility (so long as within 30 days prior to such purchase or redemption, a corresponding amount of borrowings under the revolving portion of such Credit Facility was repaid from cash provided from operations in the ordinary course of business); provided, in any such case, that the Company is able to incur an additional $1.00 of Indebtedness pursuant to Section 5.5(a) hereof after giving effect to such purchase or redemption; provided, further, that this clause (x) shall not permit the application of any proceeds from any other borrowings under any Credit Facility to effect any such purchase or redemptionAsset Sale Offer; and (xi9) so long as no Default has occurred and is continuing or would be caused thereby, other Restricted Payments in an aggregate amount not to exceed $5.0 25.0 million since the Issue Datedate of this Indenture. The amount of all Restricted Payments (other than cash) shall will be the Fair Market Value on the date of such the Restricted Payment of the asset(s) or securities proposed to be paid, transferred or issued by the Parent, the Company or such Restricted Subsidiary, as the case may be, pursuant to such the Restricted Payment. The Fair Market Value of any cash Restricted Payment shall assets or securities that are required to be its face amount, and the Fair Market Value of any non-cash Restricted Payment exceeding $5.0 million shall valued by this Section 4.07 will be determined conclusively by two senior officers of the Company acting in good faith whose conclusions with respect thereto shall be set forth in an Officers’ Certificate delivered to the Holders; provided, however, that if the Fair Market Value of any non-cash Restricted Payment exceeds $10.0 million, such Fair Market Value shall be determined conclusively by the Board of Directors of the Company and set forth in a board resolution, and a certified copy of such board Parent whose resolution shall with respect thereto will be delivered to the HoldersTrustee. For purposes The Board of determining compliance with this Section 5.5Directors’ determination must be based upon an opinion or appraisal issued by an accounting, in appraisal or investment banking firm of national standing if the event that a Restricted Payment meets the criteria of more than one of the exceptions described in (i) through (xi) above or is entitled to be made pursuant to Section 5.5(a) hereof, the Company shall, in its sole discretion, classify such Restricted Payment, or later classify, reclassify or re-divide all or a portion of such Restricted Payment, in any manner that complies with this Section 5.5Fair Market Value exceeds $10.0 million.

Restricted Payments. (a) The Company will not, and will not permit any of its the Restricted Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly: (i) declare or pay , any dividend on any class of its stock, or make any other payment or distribution on account of of, or set apart assets for a sinking or other analogous fund for, the Company’s purchase, redemption, retirement, defeasance or any of its Restricted Subsidiaries’ Equity Interests (including, without limitationother acquisition of, any payment in connection with any merger shares of common stock or consolidation involving the Company or any of its Restricted Subsidiaries) or Indebtedness subordinated 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 and other than dividends or distributions payable to the Company or a 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 Obligations of the Company or any direct options, warrants, or indirect parent of the Company;other rights to purchase such common stock or such Indebtedness, whether now or hereafter outstanding (each, a “Restricted Payment”), except: (iiia) the Company and such Restricted Subsidiaries may make any payment on or with respect toRestricted Payments, or purchase, redeem, defease or otherwise acquire or retire for value any Subordinated Indebtedness, except a payment of interest or principal at the Stated Maturity thereof; or (iv) make any Restricted Investment (all such payments and other actions set forth in these clauses if (i) through (iv) above being collectively referred to as “Restricted Payments”), unless, at the time of both before and after giving effect to such Restricted Payment no Default shall have occurred or be continuing and (ii) after giving pro forma effect to such Restricted Payment:, the Company’s Total Leverage Ratio is less than or equal to 3.00 to 1.00; (b) if after giving pro forma effect to a Restricted Payment, the Company’s Leverage Ratio is greater than to 3.00 to 1.00, the Company and such Restricted Subsidiaries may make the following Restricted Payments: (1) dividends payable by the Company solely in shares of any class of its common stock, (2) Restricted Payments made by any such Restricted Subsidiary to the Company or to another Restricted Subsidiary Loan Party, (3) dividends paid by any such Restricted Subsidiary to Company or to another such Restricted Subsidiary that is its direct parent and (4) cash dividends paid on, and cash redemptions of, the common stock of the Company provided, that (i) no Default or Event of Default has occurred and is continuing at the time such dividend is paid or would occur as a consequence of such Restricted Payment; redemption is made, and (ii) the Company would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 5.7 hereof; and (iii) such Restricted Payment, together with the aggregate amount of all other such Restricted Payments made by the Company and its Restricted Subsidiaries since the Issue Date (excluding Restricted Payments permitted by clauses (ii), (iii), (iv), (v), (vi), (vii), (viii) and (xi) of paragraph (b) of this Section 5.5), is less than the sum, without duplication, of: (1) 50% of the Consolidated Net Income of the Company for the period (taken as one accounting period) from the beginning of the fiscal quarter during which the Issue Date occurs to the end of the Company’s most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit); plus (2) 100% of (A)(i) the aggregate net cash proceeds and (ii) the Fair Market Value of (x) marketable securities (other than marketable securities of the Company), (y) Capital Stock of a Person (other than the Company or an Affiliate of the Company) engaged in a Permitted Business and (z) other assets used in any Permitted Business, in the case of clauses (i) and (ii), received by the Company since the Issue Date as a contribution to its common equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified Stock) or from the issue or sale of convertible or exchangeable Disqualified Stock or convertible or exchangeable debt securities of the Company that have been converted into or exchanged for such Equity Interests (other than Equity Interests (or Disqualified Stock or debt securities) sold to a Subsidiary of the Company), (B) the amount by which Indebtedness of the Company or any Restricted Subsidiary is reduced on the Company’s consolidated balance sheet upon the conversion or exchange after the Issue Date of any such Indebtedness into or for Equity Interests (other than Disqualified Stock) of the Company, and (C) the aggregate net cash proceeds, if any, received by the Company or any of its Restricted Subsidiaries upon any conversion or exchange described in clause (1) or (2) above; plus (3) with respect to Restricted Investments made by the Company and its Restricted Subsidiaries after the Issue Date, an amount equal to does not exceed the sum of (A) $100,000,000 during the net reduction in such Restricted Investments in any Person resulting from (i) repayments term of loans or advances, or other transfers of assets, in each case to the Company or any Restricted Subsidiary, (ii) other repurchases, repayments or redemptions of such Restricted Investments, (iii) the sale of any such Restricted Investment or (iv) the release of any Guarantee (except to the extent any amounts are paid under such Guarantee) this Agreement plus (B) all amounts representing fifty percent (50%) of Consolidated Net Income (if greater than $0) earned year to date as of the return of capital most recently ended fiscal quarter, and further, provided, if such Restricted Payments in any fiscal year are less than hereby permitted for such fiscal year, the excess permitted amount for such fiscal year may be carried forward to any succeeding fiscal period; (excluding dividends and distributionsc) each such Restricted Subsidiary may make Restricted Payments to the Company or Company, the Subsidiary Guarantors and any Restricted Subsidiary other Person that owns an equity interest in respect of such Restricted Investment plus (C) with respect to any Unrestricted Subsidiary that the Board of Directors of the Company redesignates as a Restricted Subsidiary, the Fair Market Value of the Investment in such Subsidiary held by the Company or any of its Restricted Subsidiaries at the time of such redesignation. (b) The provisions of Section 5.5(a) hereof will not prohibit: (i) the payment of any dividend or the consummation of any irrevocable redemption within 60 days after the date of declaration of the dividend or giving of the redemption notice, as the case may be, if at the date of declaration or notice, the dividend or redemption payment would have complied with the provisions of this Agreement and the Notes; (ii) the making of any Restricted Payment in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than ratably according to a Subsidiary of the Company) of, Equity Interests of the Company (other than Disqualified Stock) or from the substantially concurrent contribution (other than by a Subsidiary of the Company) of capital to the Company in respect of its Equity Interests (other than Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such Restricted Payment will be excluded from clause (iii)(2) of Section 5.5(a) hereof; (iii) the repurchase, redemption, defeasance or other acquisition or retirement for value of Subordinated Indebtedness (including the payment of any required premium and any fees and expenses incurred in connection with such repurchase, redemption, defeasance or other acquisition) with the net cash proceeds from a substantially concurrent incurrence of Permitted Refinancing Indebtedness; provided that the amount of any such net cash proceeds that are utilized for any such Restricted Payment will be excluded from clause (iii)(2) of Section 5.5(a) hereof; (iv) the payment of any dividend (or, in the case of any partnership or limited liability company, any similar distribution) by a Restricted Subsidiary of the Company to the holders of the Equity Interests (other than Disqualified Stock) of such Restricted Subsidiary; provided that such dividend or similar distribution is paid to all holders of such Equity Interests on a pro rata basis based on their respective holdings of the type of equity interest in respect of which such Equity Interests; (v) the payment of any dividend on the EB-5 Preferred Stock; (vi) the repurchase, redemption or other acquisition or retirement of Equity Interests deemed to occur upon the exercise or exchange of stock options, warrants or other similar rights to the extent such Equity Interests represent a portion of the exercise or exchange price of those stock options, and the repurchase, redemption or other acquisition or retirement of Equity Interests made in lieu of withholding taxes resulting from the exercise or exchange of stock options, warrants or other similar rights; (vii) so long as no Default has occurred and Restricted Payment is continuing or would be caused thereby, the declaration and payment of regularly scheduled or accrued dividends to holders of any class or series of Disqualified Stock of the Company or any Restricted Subsidiary of the Company or any class or series of preferred stock of a Restricted Subsidiary of the Company, in each case issued on or after the Issue Date in accordance with the Fixed Charge Coverage Ratio test described in Section 5.7 hereof; (viii) payments to fund the purchase by the Company of fractional shares arising out of stock dividends, splits or combination or business combinations; (ix) the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company held by any of the Company’s (or any of its Restricted Subsidiaries’) current or former directors or employees; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may not exceed the Fair Market Value thereof and furthermore may not exceed, in any twelve-month period since the Issue Date, $0.5 million (with unused amounts (with respect to the $0.5 million limit referred to above) in any 12-month period after such date being permitted to be carried over into succeeding 12-month periods); provided, further, that the amounts in any such 12-month period may be increased by an amount not to exceed (1) the cash proceeds received by the Company or any of its Restricted Subsidiaries from the sale of the Company’s Equity Interests (other than Disqualified Stock) to any such directors or employees that occurs after the Issue Date (provided that the amount of such cash proceeds utilized for any such repurchase, retirement or other acquisition or retirement will not increase the amount available for Restricted Payments under clause (iii) of the immediately preceding paragraph and to the extent such proceeds have not otherwise been applied to the payment of Restricted Payments) plus (2) the cash proceeds of key man life insurance policies received by the Company and its Restricted Subsidiaries after the Issue Date; (x) the purchase or redemption of any Acquired Subordinated Indebtedness of the Company or any of its Restricted Subsidiaries, by application of (i) cash provided from operations in the ordinary course of business or (ii) proceeds from borrowings under the revolving portion of any Credit Facility (so long as within 30 days prior to such purchase or redemption, a corresponding amount of borrowings under the revolving portion of such Credit Facility was repaid from cash provided from operations in the ordinary course of business); provided, in any such case, that the Company is able to incur an additional $1.00 of Indebtedness pursuant to Section 5.5(a) hereof after giving effect to such purchase or redemption; provided, further, that this clause (x) shall not permit the application of any proceeds from any other borrowings under any Credit Facility to effect any such purchase or redemptionmade; and (xid) so long as no Default has occurred and is continuing or would be caused thereby, other Restricted Payments in an aggregate amount not to exceed $5.0 million since the Issue Date. The amount of all Restricted Payments (other than cash) shall be the Fair Market Value on the date of such Restricted Payment of the asset(s) or securities proposed to be paid, transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to such Restricted Payment. The Fair Market Value of any cash Restricted Payment shall be its face amount, and the Fair Market Value of any non-cash Restricted Payment exceeding $5.0 million shall be determined conclusively by two senior officers of the Company acting in good faith whose conclusions with respect thereto shall be set forth in an Officers’ Certificate delivered to the Holders; provided, however, that if the Fair Market Value of any non-cash Restricted Payment exceeds $10.0 million, such Fair Market Value shall be determined conclusively by the Board of Directors of the Company and set forth in a board resolution, and a certified copy of such board resolution shall be delivered to the Holders. For purposes of determining compliance with this Section 5.5, in the event that a Restricted Payment meets the criteria of more than one of the exceptions described in (i) through (xi) above or is entitled to be made pursuant to Section 5.5(a) hereof, the Company shallmay, in its sole discretion, classify pay the Special Dividend so long as at the time of paying the Special Dividend the Company demonstrates to the reasonable satisfaction of the Administrative Agent that prior to, and immediately after giving effect (including effect on a pro forma basis) to, the payment of the Special Dividend (i) the aggregate amount of the Available Revolving Commitments of the Lenders at such Restricted Paymenttime is equal to or greater than an amount equal to 15% of the Revolving Credit Availability at such time and, if the Company were to borrow an amount equal to 15% of the Aggregate Commitment at such time, the Total Leverage Ratio (giving pro forma effect to such theoretical borrowing) would be equal to or later classify, reclassify less than 4.00 to 1.00 and (ii) no Default shall have occurred or re-divide all or a portion of such Restricted Payment, in any manner that complies with this Section 5.5be continuing.

Restricted Payments. (a) The From and after the date hereof 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 any of its Restricted Subsidiaries) 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 and other than dividends or distributions payable to the Company or a 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 any direct or indirect parent of the Company; ; (iii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Subordinated IndebtednessIndebtedness that is PARI PASSU with or subordinated to the Notes (other than the Notes and the 2003 Notes), except a payment of interest or principal at the Stated Maturity thereofMaturity; or or (iv) make any Restricted Investment (all such payments and other actions set forth in these 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: (ia) no Default or Event of Default has shall have occurred and is be continuing or would occur as a consequence of such Restricted Payment;thereof; and (iib) the Company would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Cash Flow Coverage Ratio test set forth in the first paragraph of Section 5.7 4.09 hereof; and (iiic) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries since after the Issue Date date of the Indenture (excluding Restricted Payments permitted by clauses (ii), (iii), (iv), (v), (vi), (vii), (viii) and (xiiii) of paragraph (b) of this Section 5.5the next succeeding paragraph), is less than the sum, without duplication, of: sum of (1i) 50% of the Consolidated Net Income of the Company for the period (taken as one accounting period) from the beginning of the first fiscal quarter during which commencing after the Issue Date occurs date of the Indenture to the end of the Company’s 's most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit); plus , plus (2ii) 100% of (A)(i) the aggregate net cash proceeds and (ii) the Fair Market Value of (x) marketable securities (other than marketable securities of the Company), (y) Capital Stock of a Person (other than the Company or an Affiliate of the Company) engaged in a Permitted Business and (z) other assets used in any Permitted Business, in the case of clauses (i) and (ii), received by the Company since the Issue Date as a contribution to its common equity capital or from the issue or sale since the date of the Indenture of Equity Interests of the Company or MSC (other than Disqualified Stock) or from the issue or sale of convertible or exchangeable Disqualified Stock or convertible or exchangeable debt securities of the Company or MSC that have been converted into or exchanged for such Equity Interests (other than Equity Interests (or Disqualified Stock or convertible debt securities) sold to a Subsidiary of the CompanyCompany and other than Disqualified Stock or convertible debt securities that have been converted into Disqualified Stock), plus (iii) to the extent that any Restricted Investment that was made after the date of the Indenture is sold for cash or otherwise liquidated or repaid for cash, the lesser of (A) the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any) and (B) the initial amount of such Restricted Investment plus (iv) if any Unrestricted Subsidiary (A) is redesignated as a Restricted Subsidiary, the fair market value of such redesignated Subsidiary (as determined in good faith by which Indebtedness the Board of Directors) as of the Company date of its redesignation or (B) pays any Restricted Subsidiary is reduced on the Company’s consolidated balance sheet upon the conversion cash dividends or exchange after the Issue Date of any such Indebtedness into or for Equity Interests (other than Disqualified Stock) of the Company, and (C) the aggregate net cash proceeds, if any, received by distributions to the Company or any of its Restricted Subsidiaries upon any conversion or exchange described in clause (1) or (2) above; plus (3) with respect to Restricted Investments made by the Company and its Restricted Subsidiaries after the Issue DateSubsidiaries, an amount equal to the sum of (A) the net reduction in such Restricted Investments in any Person resulting from (i) repayments of loans or advances, or other transfers of assets, in each case to the Company or any Restricted Subsidiary, (ii) other repurchases, repayments or redemptions of such Restricted Investments, (iii) the sale 50% of any such Restricted Investment cash dividends or (iv) cash distributions made after the release of any Guarantee (except to the extent any amounts are paid under such Guarantee) plus (B) all amounts representing the return of capital (excluding dividends and distributions) to the Company or any Restricted Subsidiary in respect of such Restricted Investment plus (C) with respect to any Unrestricted Subsidiary that the Board of Directors date of the Company redesignates as a Restricted Subsidiary, the Fair Market Value of the Investment in such Subsidiary held by the Company or any of its Restricted Subsidiaries at the time of such redesignation. (b) Indenture. The foregoing provisions of Section 5.5(a) hereof will shall not prohibit: prohibit (i) the payment of any dividend or the consummation of any irrevocable redemption within 60 days after the date of declaration of the dividend or giving of the redemption notice, as the case may bethereof, if at the said date of declaration or notice, the dividend or redemption such payment would have complied with the provisions of this Agreement and the Notes; Indenture; (ii) the making redemption, repurchase, retirement, defeasance or other acquisition of any Restricted Payment PARI PASSU or subordinated Indebtedness or Equity Interests of the Company or MSC in exchange for, or out of the net cash proceeds of the substantially concurrent sale or issuance (other than to a Restricted Subsidiary of the Company) of, other Equity Interests of the Company or MSC (other than Disqualified Stock) or from the substantially concurrent contribution (other than by a Subsidiary of the Company) of capital to the Company in respect of its Equity Interests (other than any Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such Restricted Payment will redemption, repurchase, retirement, defeasance or other acquisition shall be excluded from clause (iii)(2c) (ii) of Section 5.5(a) hereof; the preceding paragraph; (iii) the repurchasedefeasance, redemption, defeasance repurchase or other acquisition of PARI PASSU or retirement for value of Subordinated subordinated Indebtedness (including the payment of any required premium and any fees and expenses incurred in connection with such repurchase, redemption, defeasance or other acquisition) with the net cash proceeds from a substantially concurrent an incurrence of Permitted Refinancing Indebtedness; provided that the amount of any such net cash proceeds that are utilized for any such Restricted Payment will be excluded from clause (iii)(2) of Section 5.5(a) hereof; (iv) the payment of any dividend (or, in the case of any partnership or limited liability company, any similar distribution) by a Restricted Subsidiary of the Company to the holders of the Equity Interests (other than Disqualified Stock) of such Restricted Subsidiary; provided that such dividend or similar distribution is paid to all holders of such its Equity Interests on a pro rata basis based on their respective holdings of such Equity Interests; basis; (v) the payment any repurchase of any dividend on the EB-5 Preferred Stock; (vi) the repurchase, redemption or other acquisition or retirement of Equity Interests deemed to occur upon the exercise or exchange of stock options, warrants or other similar rights to the extent such Equity Interests represent a portion of the exercise or exchange price of those stock options, and the repurchase, redemption or other acquisition or retirement of Equity Interests made in lieu of withholding taxes resulting from the exercise or exchange of stock options, warrants or other similar rights; (vii) so long as no Default has occurred and is continuing or would be caused thereby, the declaration and payment of regularly scheduled or accrued dividends to holders of any class or series of Disqualified Stock of the Company or any Restricted Subsidiary of the Company or any class or series of preferred stock of a Restricted Subsidiary of the Company, in each case issued on or after the Issue Date in accordance with the Fixed Charge Coverage Ratio test described in Section 5.7 hereof; (viii) payments to fund the purchase by the Company of fractional shares arising out of stock dividends, splits or combination or business combinations; (ix) the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Restricted Subsidiary MSC from present and former employees and directors of the Company held by any of the Company’s (or any of its Restricted Subsidiaries’) current Subsidiaries or former directors or employees; provided that the MSC in an aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may not exceed the Fair Market Value thereof and furthermore may not exceed, in any twelve-month period since the Issue Date, $0.5 million (with unused amounts (with respect to the $0.5 million limit referred to above) in any 12-month period after such date being permitted to be carried over into succeeding 12-month periods); provided, further, that the amounts in any such 12-month period may be increased by an amount not to exceed $5 million; (1vi) the cash proceeds received by the Company or any of its Restricted Subsidiaries from the sale of the Company’s Equity Interests (other than Disqualified Stock) to any such directors or employees that occurs after the Issue Date (provided that the amount of such cash proceeds utilized for any such repurchase, retirement or other acquisition or retirement will not increase the amount available for Restricted Payments under clause (iii) of the immediately preceding paragraph and to the extent such proceeds have not otherwise been applied to the payment of Restricted Payments) plus (2) the cash proceeds of key man life insurance policies received by the Company and its Restricted Subsidiaries after the Issue Date; (x) the purchase or redemption of any Acquired Subordinated Indebtedness of the Company or any of its Restricted Subsidiaries, by application of (i) cash provided from operations in the ordinary course of business Permitted Investments; or (iivii) proceeds from borrowings under the revolving portion of any Credit Facility (so long as within 30 days prior to such purchase or redemption, a corresponding amount of borrowings under the revolving portion of such Credit Facility was repaid from cash provided from operations in the ordinary course of business); provided, in any such case, that the Company is able to incur an additional $1.00 of Indebtedness pursuant to Section 5.5(a) hereof after giving effect to such purchase or redemption; provided, further, that this clause (x) shall not permit the application of any proceeds from any other borrowings under any Credit Facility to effect any such purchase or redemption; and (xi) so long as no Default has occurred and is continuing or would be caused thereby, other Restricted Payments in an aggregate amount not to exceed $5.0 million since 5 million. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default. For purposes of making such determination, all outstanding Investments by the Issue DateCompany and its Restricted Subsidiaries (except to the extent repaid in cash) in the Subsidiary so designated will be deemed to be Restricted Payments at the time of such designation and will reduce the amount available for Restricted Payments under the first paragraph of this covenant. All such outstanding Investments will be deemed to constitute Investments in an amount equal to the fair market value of such Investments at the time of such designation (as determined in good faith by the Board of Directors). Such designation shall only be permitted if such Restricted Payment would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. The amount of all Restricted Payments (other than cash) shall be the Fair Market Value fair market value on the date of such the Restricted Payment of the asset(s) or securities proposed to be paid, transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to such the Restricted Payment. The Fair Market Value of any cash Restricted Payment shall be its face amount, and the Fair Market Value fair market value of any non-cash Restricted Payment exceeding $5.0 million shall be determined conclusively by two senior officers of the Company acting in good faith by the Board of Directors whose conclusions resolution with respect thereto shall be set forth in an Officers’ Certificate delivered to the Holders; providedTrustee, howeversuch determination to be based upon an opinion or appraisal issued by an accounting, that appraisal or investment banking firm of national standing if the Fair Market Value of any non-cash Restricted Payment such fair market value exceeds $10.0 million, such Fair Market Value shall be determined conclusively by . Not later than the Board date of Directors of the Company and set forth in a board resolution, and a certified copy of such board resolution shall be delivered to the Holders. For purposes of determining compliance with this Section 5.5, in the event that a making any Restricted Payment meets the criteria of more than one of the exceptions described in (i) through (xi) above or is entitled to be made pursuant to Section 5.5(a) hereofPayment, the Company shall, in its sole discretion, classify shall deliver to the Trustee an Officers' Certificate stating that such Restricted PaymentPayment is permitted and setting forth the basis upon which the calculations required by this covenant were computed, together with a copy of any fairness opinion or later classify, reclassify or re-divide all or a portion of such Restricted Payment, in any manner that complies with this Section 5.5appraisal required by the Indenture.

Restricted Payments. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, declare or make, or agree to pay or make, 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 Restricted Payment, except (a) the Company or any Subsidiary may declare and pay dividends or other distributions with respect to its Equity Interests payable solely in additional shares of its Restricted Subsidiaries) or to the direct or indirect holders of the Company’s or any of its Restricted Subsidiaries’ Qualified Equity Interests or options to purchase Qualified Equity Interests; (b) Subsidiaries may declare and make Restricted Payments ratably with respect to their Equity Interests; (c) the Company may make Restricted Payments pursuant to and in their capacity as such (accordance with stock option plans or other than dividends benefit plans for present or distributions payable in Equity Interests (other than Disqualified Stock) former officers, directors, consultants or employees of the Company and its Subsidiaries in an amount not to exceed $10,000,000 in any fiscal year (with any unused amount of such base amount available for use in the next succeeding fiscal year); (d) to the extent constituting Restricted Payments, the Company and the Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 6.03 or 6.07 (other than dividends or distributions payable to the Company or a Restricted Subsidiary Section 6.07(a)); (e) repurchases 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 in the Company or any direct Subsidiary deemed to occur upon exercise of stock options or indirect parent warrants if such Equity Interests represent a portion of the Company; exercise price of such options or warrants; (iiif) make the Company may cancel a portion of any payment on or equity compensation award in connection with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Subordinated Indebtedness, except a the payment of interest withholding taxes by the Company and its Subsidiaries thereon on behalf of employees and directors of the Company and its Subsidiaries, (g) the Company may make other Restricted Payments in an aggregate amount not to exceed the sum of (x) $20,000,000 less the aggregate principal amount of Specified Indebtedness repurchased or principal at the Stated Maturity thereof; or (iv) make any Restricted Investment (all such payments and other actions set forth in these clauses (i) through (iv) above being collectively referred prepaid pursuant to as “Restricted Payments”Section 6.06(a)(iv)(A), unless, at plus (y) the time of and after giving effect to such Available Amount; provided that the Company may only make the Restricted Payment: Payments permitted under the foregoing clause (ig) so long as (A) no Default or Event of Default has occurred and is continuing or would occur as a consequence of such Restricted Payment; (ii) the Company would, at the time of arise after giving effect to such Restricted Payment and (B) after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 5.7 hereof; and (iii) such Restricted Payment, together the Company would be in compliance with Section 6.09; (h) the payment of cash in lieu of the issuance of fractional shares in connection with the aggregate amount exercise of all warrants, options or other Restricted Payments made by the Company and its Restricted Subsidiaries since the Issue Date (excluding Restricted Payments permitted by clauses (ii), (iii), (iv), (v), (vi), (vii), (viii) and (xi) of paragraph (b) of this Section 5.5), is less than the sum, without duplication, of: (1) 50% of the Consolidated Net Income of the Company securities convertible into or exercisable for the period (taken as one accounting period) from the beginning of the fiscal quarter during which the Issue Date occurs to the end of the Company’s most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit); plus (2) 100% of (A)(i) the aggregate net cash proceeds and (ii) the Fair Market Value of (x) marketable securities (other than marketable securities of the Company), (y) Capital Stock of a Person (other than the Company or an Affiliate of the Company) engaged in a Permitted Business and (z) other assets used in any Permitted Business, in the case of clauses (i) and (ii), received by the Company since the Issue Date as a contribution to its common equity capital or from the issue or sale of Qualified Equity Interests of the Company (other than Disqualified Stock) or from the issue or sale of convertible or exchangeable Disqualified Stock or convertible or exchangeable debt securities of the Company that have been converted into or exchanged for such Equity Interests (other than Equity Interests (or Disqualified Stock or debt securities) sold to a Subsidiary of the Company), (B) the amount by which Indebtedness of the Company or any Restricted Subsidiary is reduced on the Company’s consolidated balance sheet upon the conversion or exchange after the Issue Date of any such Indebtedness into or for Equity Interests (other than Disqualified Stock) of the Company, and (C) the aggregate net cash proceeds, if any, received by the Company or any of its Restricted Subsidiaries upon any conversion or exchange described in clause (1) or (2) above; plus (3) with respect to Restricted Investments made by the Company and its Restricted Subsidiaries after the Issue Date, an amount equal to the sum of (A) the net reduction in such Restricted Investments in any Person resulting from (i) repayments of loans or advances, or other transfers of assets, in each case to the Company or any Restricted Subsidiary, (ii) other repurchases, repayments or redemptions of such Restricted Investments, (iii) the sale of any such Restricted Investment or (iv) the release of any Guarantee (except to the extent any amounts are paid under such Guarantee) plus (B) all amounts representing the return of capital (excluding dividends and distributions) to the Company or any Restricted Subsidiary in respect of such Restricted Investment plus (C) with respect to any Unrestricted Subsidiary that the Board of Directors of the Company redesignates as a Restricted Subsidiary, the Fair Market Value of the Investment in such Subsidiary held by the Company or any of its Restricted Subsidiaries at the time of such redesignation. (b) The provisions of Section 5.5(a) hereof will not prohibit: (i) the payment of any dividend or the consummation of any irrevocable redemption within 60 days after the date of declaration of the dividend or giving of the redemption notice, as the case Company may be, if at the date of declaration or notice, the dividend or redemption payment would have complied with the provisions of this Agreement and the Notes; (ii) the making of any Restricted Payment in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Subsidiary of the Company) of, Equity Interests of the Company (other than Disqualified Stock) or from the substantially concurrent contribution (other than by a Subsidiary of the Company) of capital to the Company in respect of its Equity Interests (other than Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such Restricted Payment will be excluded from clause (iii)(2) of Section 5.5(a) hereof; (iii) the repurchase, redemption, defeasance or other acquisition or retirement for value of Subordinated Indebtedness (including the payment of any required premium and any fees and expenses incurred in connection with such repurchase, redemption, defeasance or other acquisition) with the net cash proceeds from a substantially concurrent incurrence of Permitted Refinancing Indebtedness; provided that the amount of any such net cash proceeds that are utilized for any such Restricted Payment will be excluded from clause (iii)(2) of Section 5.5(a) hereof; (iv) the payment of any dividend (or, in the case of any partnership or limited liability company, any similar distribution) by a Restricted Subsidiary of the Company to the holders of the Equity Interests (other than Disqualified Stock) of such Restricted Subsidiary; provided that such dividend or similar distribution is paid to all holders of such Equity Interests on a pro rata basis based on their respective holdings of such Equity Interests; (v) the payment of any dividend on the EB-5 Preferred Stock; (vi) the repurchase, redemption or other acquisition or retirement of Equity Interests deemed to occur upon the exercise or exchange of stock options, warrants or other similar distribute rights to the extent such Equity Interests represent a portion of the exercise or exchange price of those stock options, and the repurchase, redemption or other acquisition or retirement of Equity Interests made in lieu of withholding taxes resulting from the exercise or exchange of stock options, warrants or other similar rights; (vii) so long as no Default has occurred and is continuing or would be caused thereby, the declaration and payment of regularly scheduled or accrued dividends to holders of any class or series of Disqualified Stock of the Company or any Restricted Subsidiary of the Company or any class or series of preferred stock of a Restricted Subsidiary of the Company, in each case issued on or after the Issue Date in accordance with the Fixed Charge Coverage Ratio test described in Section 5.7 hereof; (viii) payments to fund the purchase by the Company of fractional shares arising out of stock dividends, splits or combination or business combinations; (ix) the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company held by any of the Company’s (or any of its Restricted Subsidiaries’) current or former directors or employees; provided that common stock pursuant to a customary shareholder rights plan and the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may not exceed the Fair Market Value thereof and furthermore may not exceed, in any twelve-month period since the Issue Date, $0.5 million (with unused amounts (with respect to the $0.5 million limit referred to above) in any 12-month period after such date being permitted to be carried over into succeeding 12-month periods); provided, further, that the amounts in any such 12-month period may be increased by an amount not to exceed (1) the cash proceeds received by the Company or any of its Restricted Subsidiaries from the sale of the Company’s Equity Interests (other than Disqualified Stock) to any such directors or employees that occurs after the Issue Date (provided that the amount redemption of such cash proceeds utilized rights for any such repurchase, retirement or other acquisition or retirement will not increase the amount available for Restricted Payments under clause (iii) of the immediately preceding paragraph and to the extent such proceeds have not otherwise been applied to the payment of Restricted Payments) plus (2) the cash proceeds of key man life insurance policies received by the Company and its Restricted Subsidiaries after the Issue Date; (x) the purchase or redemption of any Acquired Subordinated Indebtedness of the Company or any of its Restricted Subsidiaries, by application of (i) cash provided from operations in the ordinary course of business or (ii) proceeds from borrowings under the revolving portion of any Credit Facility (so long as within 30 days prior to such purchase or redemption, a corresponding amount of borrowings under the revolving portion of such Credit Facility was repaid from cash provided from operations in the ordinary course of business); provided, in any such case, that the Company is able to incur an additional $1.00 of Indebtedness pursuant to Section 5.5(a) hereof after giving effect to such purchase or redemption; provided, further, that this clause (x) shall not permit the application of any proceeds from any other borrowings under any Credit Facility to effect any such purchase or redemption; and (xi) so long as no Default has occurred and is continuing or would be caused thereby, other Restricted Payments in an aggregate amount not to exceed $5.0 million since the Issue Date. The amount of all Restricted Payments (other than cash) shall be the Fair Market Value on the date of such Restricted Payment of the asset(s) or securities proposed to be paid, transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to such Restricted Payment. The Fair Market Value of any cash Restricted Payment shall be its face amount, and the Fair Market Value of any non-cash Restricted Payment exceeding $5.0 million shall be determined conclusively by two senior officers of the Company acting in good faith whose conclusions with respect thereto shall be set forth in an Officers’ Certificate delivered to the Holders; provided, however, that if the Fair Market Value of any non-cash Restricted Payment exceeds $10.0 million, such Fair Market Value shall be determined conclusively by the Board of Directors of the Company and set forth in a board resolution, and a certified copy of such board resolution shall be delivered to the Holders. For purposes of determining compliance with this Section 5.5, in the event that a Restricted Payment meets the criteria of more than one of the exceptions described in (i) through (xi) above or is entitled to be made pursuant to Section 5.5(a) hereof, the Company shall, in its sole discretion, classify such Restricted Payment, or later classify, reclassify or re-divide all or a portion of such Restricted Payment, in any manner that complies with this Section 5.5nominal consideration.

Restricted Payments. (a) The Company will not, and will not permit any of its Restricted Subsidiaries toDeclare or make, directly or indirectly, any Restricted Payment or Restricted Purchase, or incur any obligation (contingent or otherwise) to do so, except that: (ia) the Borrower may, during any taxable year, declare or pay any dividend or make any other payment or distribution on account Restricted Payments if the Borrower’s Consolidated Leverage Ratio, as 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 any of its Restricted Subsidiaries) or to the direct or indirect holders end 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 and other than dividends or distributions payable to the Company or a 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 any direct or indirect parent of the Company; (iii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Subordinated Indebtedness, except a payment of interest or principal at the Stated Maturity thereof; or (iv) make any Restricted Investment (all such payments and other actions set forth in these 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: (i) no Default or Event of Default has occurred and is continuing or would occur as a consequence of such Restricted Payment; (ii) the Company would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 5.7 hereof; and (iii) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries since the Issue Date (excluding Restricted Payments permitted by clauses (ii), (iii), (iv), (v), (vi), (vii), (viii) and (xi) of paragraph (b) of this Section 5.5)preceding taxable year, is less than the sum, without duplication, of: (1) 50% of the Consolidated Net Income of the Company for the period (taken as one accounting period) from the beginning of the fiscal quarter during which the Issue Date occurs to the end of the Company’s most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit); plus (2) 100% of (A)(i) the aggregate net cash proceeds and (ii) the Fair Market Value of (x) marketable securities (other than marketable securities of the Company), (y) Capital Stock of a Person (other than the Company or an Affiliate of the Company) engaged in a Permitted Business and (z) other assets used in any Permitted Business, in the case of clauses (i) and (ii), received by the Company since the Issue Date as a contribution to its common equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified Stock) or from the issue or sale of convertible or exchangeable Disqualified Stock or convertible or exchangeable debt securities of the Company that have been converted into or exchanged for such Equity Interests (other than Equity Interests (or Disqualified Stock or debt securities) sold to a Subsidiary of the Company), (B) the amount by which Indebtedness of the Company or any Restricted Subsidiary is reduced on the Company’s consolidated balance sheet upon the conversion or exchange after the Issue Date of any such Indebtedness into or for Equity Interests (other than Disqualified Stock) of the Company, and (C) the aggregate net cash proceeds, if any, received by the Company or any of its Restricted Subsidiaries upon any conversion or exchange described in clause (1) or (2) above; plus (3) with respect to Restricted Investments made by the Company and its Restricted Subsidiaries after the Issue Date, an amount equal to the sum of (A) the net reduction in such Restricted Investments in any Person resulting from (i) repayments of loans or advances, or other transfers of assets, in each case 0.60 to the Company or any Restricted Subsidiary, (ii) other repurchases, repayments or redemptions of such Restricted Investments, (iii) the sale of any such Restricted Investment or (iv) the release of any Guarantee (except to the extent any amounts are paid under such Guarantee) plus (B) all amounts representing the return of capital (excluding dividends and distributions) to the Company or any Restricted Subsidiary in respect of such Restricted Investment plus (C) with respect to any Unrestricted Subsidiary that the Board of Directors of the Company redesignates as a Restricted Subsidiary, the Fair Market Value of the Investment in such Subsidiary held by the Company or any of its Restricted Subsidiaries at the time of such redesignation. (b) The provisions of Section 5.5(a) hereof will not prohibit: (i) the payment of any dividend or the consummation of any irrevocable redemption within 60 days after the date of declaration of the dividend or giving of the redemption notice, as the case may be, if at the date of declaration or notice, the dividend or redemption payment would have complied with the provisions of this Agreement and the Notes; (ii) the making of any Restricted Payment in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Subsidiary of the Company) of, Equity Interests of the Company (other than Disqualified Stock) or from the substantially concurrent contribution (other than by a Subsidiary of the Company) of capital to the Company in respect of its Equity Interests (other than Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such Restricted Payment will be excluded from clause (iii)(2) of Section 5.5(a) hereof; (iii) the repurchase, redemption, defeasance or other acquisition or retirement for value of Subordinated Indebtedness (including the payment of any required premium and any fees and expenses incurred in connection with such repurchase, redemption, defeasance or other acquisition) with the net cash proceeds from a substantially concurrent incurrence of Permitted Refinancing Indebtedness; provided that the amount of any such net cash proceeds that are utilized for any such Restricted Payment will be excluded from clause (iii)(2) of Section 5.5(a) hereof; (iv) the payment of any dividend (or, in the case of any partnership or limited liability company, any similar distribution) by a Restricted Subsidiary of the Company to the holders of the Equity Interests (other than Disqualified Stock) of such Restricted Subsidiary; provided that such dividend or similar distribution is paid to all holders of such Equity Interests on a pro rata basis based on their respective holdings of such Equity Interests; (v) the payment of any dividend on the EB-5 Preferred Stock; (vi) the repurchase, redemption or other acquisition or retirement of Equity Interests deemed to occur upon the exercise or exchange of stock options, warrants or other similar rights to the extent such Equity Interests represent a portion of the exercise or exchange price of those stock options, and the repurchase, redemption or other acquisition or retirement of Equity Interests made in lieu of withholding taxes resulting from the exercise or exchange of stock options, warrants or other similar rights; (vii) so long as no Default has occurred and is continuing or would be caused thereby, the declaration and payment of regularly scheduled or accrued dividends to holders of any class or series of Disqualified Stock of the Company or any Restricted Subsidiary of the Company or any class or series of preferred stock of a Restricted Subsidiary of the Company, in each case issued on or after the Issue Date in accordance with the Fixed Charge Coverage Ratio test described in Section 5.7 hereof; (viii) payments to fund the purchase by the Company of fractional shares arising out of stock dividends, splits or combination or business combinations; (ix) the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company held by any of the Company’s (or any of its Restricted Subsidiaries’) current or former directors or employees; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may not exceed the Fair Market Value thereof and furthermore may not exceed, in any twelve-month period since the Issue Date, $0.5 million (with unused amounts (with respect to the $0.5 million limit referred to above) in any 12-month period after such date being permitted to be carried over into succeeding 12-month periods); provided, further, that the amounts in any such 12-month period may be increased by an amount not to exceed (1) the cash proceeds received by the Company or any of its Restricted Subsidiaries from the sale of the Company’s Equity Interests (other than Disqualified Stock) to any such directors or employees that occurs after the Issue Date (provided that the amount of such cash proceeds utilized for any such repurchase, retirement or other acquisition or retirement will not increase the amount available for Restricted Payments under clause (iii) of the immediately preceding paragraph and to the extent such proceeds have not otherwise been applied to the payment of Restricted Payments) plus (2) the cash proceeds of key man life insurance policies received by the Company and its Restricted Subsidiaries after the Issue Date; (x) the purchase or redemption of any Acquired Subordinated Indebtedness of the Company or any of its Restricted Subsidiaries, by application of (i) cash provided from operations in the ordinary course of business or (ii) proceeds from borrowings under the revolving portion of any Credit Facility (so long as within 30 days prior to such purchase or redemption, a corresponding amount of borrowings under the revolving portion of such Credit Facility was repaid from cash provided from operations in the ordinary course of business); provided, in any such case, that the Company is able to incur an additional $1.00 of Indebtedness pursuant to Section 5.5(a) hereof after giving effect to such purchase or redemption; provided, further, that this clause (x) shall not permit the application of any proceeds from any other borrowings under any Credit Facility to effect any such purchase or redemption; and (xi) so long as no Default has occurred and is continuing or would be caused thereby, other Restricted Payments in an aggregate amount not to exceed $5.0 million since the Issue Date. The amount of all Restricted Payments (other than cash) shall be the Fair Market Value on the date of such Restricted Payment of the asset(s) or securities proposed to be paid, transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to such Restricted Payment. The Fair Market Value of any cash Restricted Payment shall be its face amount, and the Fair Market Value of any non-cash Restricted Payment exceeding $5.0 million shall be determined conclusively by two senior officers of the Company acting in good faith whose conclusions with respect thereto shall be set forth in an Officers’ Certificate delivered to the Holders1.00; provided, however, that if the Fair Market Value Borrower’s Consolidated Leverage Ratio is greater than 0.60 to 1.00 as of the end of any non-taxable year, the Borrower may, during the next taxable year, only declare or make Restricted Payments in an amount not to exceed the minimum amount required to maintain REIT status; (b) the Consolidated Entities may make Restricted Payments to the Borrower and to any other Consolidated Entities; (c) the Borrower and the Consolidated Entities may make cash Restricted Payment exceeds $10.0 million, distributions to their respective shareholders or other owners for capital gains resulting from certain assets sales to the extent necessary to avoid payment of taxes on such Fair Market Value shall be determined conclusively by the Board of Directors asset sales imposed under Sections 857(b)(3) and 4981 of the Company and set forth in a board resolutionCode; (d) any Consolidated Entity (other than the Borrower) may make payments to any partner, and a certified copy member or shareholder of such board resolution shall be delivered to the Holders. For purposes of determining compliance with this Section 5.5, in the event that a Restricted Payment meets the criteria of more than one of the exceptions described in (i) through (xi) above or is entitled Person required to be made pursuant to Section 5.5(aany contractual obligations of such Person or the Organization Documents of such Person (other than distributions to the equity holders of the Borrower in their capacity as such); and (e) hereofso long as there does not exist at such time and would not be caused thereby, (i) an Event of Default under this Agreement, or (ii) any other Event of Default which has not been cured or waived by the Required Lenders within a period of ninety (90) days from the date that the Borrower knew or should have known of such Event of Default, the Company shall, in its sole discretion, classify such Borrower may make Restricted Payment, or later classify, reclassify or re-divide all or a portion of such Restricted Payment, in any manner that complies with this Section 5.5Purchases.

Restricted Payments. (a) The Company Constituent Companies will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, declare or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except: (ia) declare or pay any dividend or each Subsidiary of the Issuer may make Restricted Payments to the Issuer and any other payment or distribution on account Person that owns an Equity Interest in such Subsidiary, ratably according to their respective holdings of the Company’s or any type of its Equity Interest in respect of which such Restricted Subsidiaries’ Equity Interests Payment is being made; (including, without limitation, any payment in connection with any merger or consolidation involving the b) either Constituent Company or any Subsidiary may declare and make dividend payments or other distributions, and may make other Restricted Payments, in each case, payable solely in the common stock or other common Equity Interests of its Restricted Subsidiaries) such Person 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 and other than dividends or distributions payable to the Company or a Restricted Subsidiary of the Company)Parent Guarantor; (iic) so long as no Default or Event of Default shall have occurred and be continuing at the time thereof or would result therefrom, either Constituent Company or any Subsidiary may purchase, redeem or otherwise acquire Equity Interests issued by it with the proceeds received from an issue of new shares of its common stock or retire other Equity Interests within 90 days before such Restricted Payment; (d) the Issuer may make Restricted Payments to the Parent Guarantor and, to the extent corresponding distributions to other holders of its Equity Interests are required by its Organizational Documents, to such other holders of Equity Interests, in amounts sufficient to permit the Parent Guarantor to make, and the Parent Guarantor may make, Restricted Payments, for value any 12-month period, not to exceed an amount equal to the greater of: (including without limitation1) (i) 95% multiplied by (ii) Funds From Operations for such period and (2) the aggregate amount of Restricted Payments required to be made by the Parent Guarantor in order for it to (i) maintain its status as a REIT and (ii) avoid the payment of federal or state income or excise tax; provided that to the extent a Default or Event of Default shall have occurred and be continuing or would result from the making of such Restricted Payment by the Parent Guarantor (other than a Default or Event of Default specified in Section 11(g) or Section 11(h) or a Default or an Event of Default that has resulted in the Required Holders exercising their remedies under Section 12, in which case no Restricted Payments otherwise permitted under this clause (d) may be made), the Issuer may only make Restricted Payments to the Parent Guarantor and, to the extent corresponding distributions to other holders of its Equity Interests are required by its Organizational Documents, to such other holders of Equity Interests, in amounts sufficient to permit the Parent Guarantor to make, and the Parent Guarantor may make, Restricted Payments in the minimum amount required in order for the Parent Guarantor to (A) maintain its status as a REIT and (B) avoid the payment of federal or state income or excise tax; (e) either Constituent Company or any Subsidiary may make non-cash Restricted Payments in connection with any merger employee, trustee and director stock option plans or consolidation involving the Company) any Equity Interests of the Company or any direct or indirect parent of the Company;similar employee, trustee and director incentive arrangements; and (iiif) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Subordinated Indebtedness, except a payment of interest or principal at the Stated Maturity thereof; or (iv) make any Restricted Investment (all such payments and other actions set forth in these clauses (i) through (iv) above being collectively referred to so long as “Restricted Payments”), unless, at the time of and after giving effect to such Restricted Payment: (i) no Default or Event of Default has shall have occurred and is be continuing or would occur as a consequence of such Restricted Payment; (ii) the Company would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter periodthereof or would result therefrom, have been permitted with respect to incur at least $1.00 of additional Indebtedness an equity award granted pursuant to the Fixed Charge Coverage Ratio test set forth in Section 5.7 hereof; and (iii) such Restricted Paymentan equity incentive compensation plan to any current or former director, together with the aggregate amount of all employee, independent contractor or other Restricted Payments made by the Company and its Restricted Subsidiaries since the Issue Date (excluding Restricted Payments permitted by clauses (ii), (iii), (iv), (v), (vi), (vii), (viii) and (xi) of paragraph (b) of this Section 5.5), is less than the sum, without duplication, of: (1) 50% of the Consolidated Net Income of the Company for the period (taken as one accounting period) from the beginning of the fiscal quarter during which the Issue Date occurs to the end of the Company’s most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit); plus (2) 100% of (A)(i) the aggregate net cash proceeds and (ii) the Fair Market Value of (x) marketable securities (other than marketable securities of the Company), (y) Capital Stock of a Person (other than the Company or an Affiliate of the Company) engaged in a Permitted Business and (z) other assets used in any Permitted Businessservice provider, in the case each case, of clauses (i) and (ii), received by the Company since the Issue Date as a contribution to its common equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified Stock) or from the issue or sale of convertible or exchangeable Disqualified Stock or convertible or exchangeable debt securities of the Company that have been converted into or exchanged for such Equity Interests (other than Equity Interests (or Disqualified Stock or debt securities) sold to a Subsidiary of the Company), (B) the amount by which Indebtedness of the either Constituent Company or any Restricted Subsidiary is reduced on the Company’s consolidated balance sheet upon the conversion or exchange after the Issue Date of any such Indebtedness into or for Equity Interests (other than Disqualified Stock) of the Company, and (C) the aggregate net cash proceeds, if any, received by the Company or any of its Restricted Subsidiaries upon any conversion or exchange described in clause (1) or (2) above; plus (3) with respect to Restricted Investments made by the Company and its Restricted Subsidiaries after the Issue Date, an amount equal to the sum of (A) the net reduction in such Restricted Investments in any Person resulting from (i) repayments of loans or advances, or other transfers of assets, in each case to the Company or any Restricted Subsidiary, (ii) other repurchases, repayments or redemptions of such Restricted Investments, (iii) the sale of any such Restricted Investment or (iv) the release of any Guarantee (except to the extent any amounts are paid under such Guarantee) plus (B) all amounts representing the return of capital (excluding dividends and distributions) to the Company or any Restricted Subsidiary in respect of such Restricted Investment plus (C) with respect to any Unrestricted Subsidiary that the Board of Directors of the Company redesignates as a Restricted Subsidiary, the Fair Market Value of the Investment in such Subsidiary held by the Company or any of its Restricted Subsidiaries at the time of such redesignation. (b) The provisions of Section 5.5(a) hereof will not prohibit: (i) the payment of any dividend or the consummation of any irrevocable redemption within 60 days after the date of declaration of the dividend or giving of the redemption notice, as the case may be, if at the date of declaration or notice, the dividend or redemption payment would have complied with the provisions of this Agreement and the Notes; (ii) the making of any Restricted Payment in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Subsidiary of the Company) of, Equity Interests of the Company (other than Disqualified Stock) or from the substantially concurrent contribution (other than by a Subsidiary of the Company) of capital to the Company in respect of its Equity Interests (other than Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such Restricted Payment will be excluded from clause (iii)(2) of Section 5.5(a) hereof; (iii) the repurchase, redemption, defeasance or other acquisition or retirement for value of Subordinated Indebtedness (including the payment of any required premium and any fees and expenses incurred in connection with such repurchase, redemption, defeasance or other acquisition) with the net cash proceeds from a substantially concurrent incurrence of Permitted Refinancing Indebtedness; provided that the amount of any such net cash proceeds that are utilized for any such Restricted Payment will be excluded from clause (iii)(2) of Section 5.5(a) hereof; (iv) the payment of any dividend (or, in the case of any partnership or limited liability company, any similar distribution) by a Restricted Subsidiary of the Company to the holders of the Equity Interests (other than Disqualified Stock) of such Restricted Subsidiary; provided that such dividend or similar distribution is paid to all holders of such Equity Interests on a pro rata basis based on their respective holdings of such Equity Interests; (v) the payment of any dividend on the EB-5 Preferred Stock; (vi) the repurchase, redemption or other acquisition or retirement of Equity Interests deemed to occur upon the exercise or exchange of stock options, warrants or other similar rights to the extent such Equity Interests represent a portion of the exercise or exchange price of those stock options, and the repurchase, redemption or other acquisition or retirement of Equity Interests made in lieu of withholding taxes resulting from the exercise or exchange of stock options, warrants or other similar rights; (vii) so long as no Default has occurred and is continuing or would be caused thereby, the declaration and payment of regularly scheduled or accrued dividends to holders of any class or series of Disqualified Stock of the Company or any Restricted Subsidiary of the Company or any class or series of preferred stock of a Restricted Subsidiary of the Company, in each case issued on or after the Issue Date in accordance with the Fixed Charge Coverage Ratio test described in Section 5.7 hereof; (viii) payments to fund the purchase by the Company of fractional shares arising out of stock dividends, splits or combination or business combinations; (ix) the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company held by any of the Company’s (or any of its Restricted Subsidiaries’) current or former directors or employees; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may not exceed the Fair Market Value thereof and furthermore may not exceed, in any twelve-month period since the Issue Date, $0.5 million (with unused amounts (with respect to the $0.5 million limit referred to above) in any 12-month period after such date being permitted to be carried over into succeeding 12-month periods); provided, further, that the amounts in any such 12-month period may be increased by an amount not to exceed (1) the cash proceeds received by the Company or any withholding of its Restricted Subsidiaries from the sale of the Company’s Equity Interests (other than Disqualified Stock) to satisfy any such directors applicable withholding tax obligations and/or exercise or employees that occurs after the Issue Date (provided that the amount of such cash proceeds utilized for any such repurchasepurchase price, retirement or other acquisition or retirement will not increase the amount available for Restricted Payments under clause (iii) of the immediately preceding paragraph and to the extent such proceeds have not otherwise been applied to the payment of Restricted Payments) plus (2) the cash proceeds repurchase or acquisition by either Constituent Company of key man life insurance policies received by the Company and its Restricted Subsidiaries after the Issue Date; such entity’s Equity Interests or (x3) the purchase grant, award, modification or redemption payment of any Acquired Subordinated Indebtedness of the Company or any of its Restricted Subsidiaries, by application of (i) cash provided from operations in the ordinary course of business or (ii) proceeds from borrowings under the revolving portion of any Credit Facility (so long as within 30 days prior to such purchase or redemption, a corresponding amount of borrowings under the revolving portion of such Credit Facility was repaid from cash provided from operations in the ordinary course of business); provided, in any such case, that the Company is able to incur an additional $1.00 of Indebtedness pursuant to Section 5.5(a) hereof after giving effect to such purchase or redemption; provided, further, that this clause (x) shall not permit the application of any proceeds from any other borrowings under any Credit Facility to effect any such purchase or redemption; and (xi) so long as no Default has occurred and is continuing or would be caused thereby, other Restricted Payments in an aggregate amount not to exceed $5.0 million since the Issue Date. The amount of all Restricted Payments (other than cash) shall be the Fair Market Value on the date of such Restricted Payment of the asset(s) or securities proposed to be paid, transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to such Restricted Payment. The Fair Market Value of any cash Restricted Payment shall be its face amount, and the Fair Market Value of any non-cash Restricted Payment exceeding $5.0 million shall be determined conclusively by two senior officers of the Company acting in good faith whose conclusions with respect thereto shall be set forth in an Officers’ Certificate delivered to the Holders; provided, however, that if the Fair Market Value of any non-cash Restricted Payment exceeds $10.0 million, such Fair Market Value shall be determined conclusively by the Board of Directors of the Company and set forth in a board resolution, and a certified copy of such board resolution shall be delivered to the Holders. For purposes of determining compliance with this Section 5.5, in the event that a Restricted Payment meets the criteria of more than one of the exceptions described in (i) through (xi) above or is entitled to be made pursuant to Section 5.5(a) hereof, the Company shall, in its sole discretion, classify such Restricted Payment, or later classify, reclassify or re-divide all or a portion of such Restricted Payment, in any manner that complies with this Section 5.5equity award.

Restricted Payments. (a) The Company will not, and will 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 or any of its Restricted Subsidiaries’ outstanding Equity Interests (including, without limitation, including any payment in connection with any merger or consolidation involving the Company or any of 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 distributions or dividends or distributions payable in Equity Interests (other than Interests, excluding Disqualified Stock) Equity, of the Company and other than distributions or dividends or distributions payable to the Company or a Restricted Subsidiary of the CompanySubsidiary); (ii2) purchaserepurchase, 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 Company, any direct or indirect parent of the Company or any of the Restricted Subsidiaries of the Company; (iii3) make any principal payment on or with respect to, or purchaserepurchase, redeem, defease or otherwise acquire or retire for value any Subordinated IndebtednessIndebtedness of the Company or any Guarantor that is contractually subordinated to the Notes or to any Subsidiary Guarantee (excluding intercompany Indebtedness between or among the Company and any of its Restricted Subsidiaries), except a payment any payment, repurchase, redemption, defeasance or other acquisition or retirement thereof within one year of interest or principal at the its Stated Maturity thereofMaturity; or (iv4) make any Restricted Investment (all such payments and other actions set forth in these clauses (i1) through (iv4) above being collectively referred to as “Restricted Payments”), unless, at the time of and immediately after giving effect to such Restricted Payment: (i) , no Default (except a Reporting Default) or Event of Default has occurred and is continuing or would occur as a consequence of such Restricted Payment;Payment and either: (iiI) if the Company would, Fixed Charge Coverage Ratio for the Company’s most recently ended four full fiscal quarters for which quarterly or annual financial statements have been delivered as provided in Section 4.03 at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter periodis not less than 1.75 to 1.0, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 5.7 hereof; and (iii) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries since the Issue Date (excluding Restricted Payments permitted by clauses (ii2), (iii3), (iv4) (to the extent, in the case of clause (4), payments are made to the Company or a Restricted Subsidiary), (v5), (vi6), (vii7), (viii) 8) and (xi9) of paragraph (bthe next succeeding paragraph) of this Section 5.5)during the quarter in which such Restricted Payment is made, is less than the sum, without duplication, of: (1a) 50% of the Consolidated Net Income of the Company for the period (taken as one accounting period) from the beginning of the fiscal quarter during which the Issue Date occurs Available Cash with respect to the end of the Company’s most recently ended preceding fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit)quarter; plus (2b) 100% of (A)(i) the aggregate net cash proceeds and (ii) the Fair Market Value of (x) marketable securities (other than marketable securities of the Company), (y) Capital Stock of a Person (other than received by the Company (including the fair market value of any Permitted Business or an Affiliate of the Company) engaged long-term assets that are used or useful in a Permitted Business and (z) other assets used to the extent acquired in any Permitted Business, in the case consideration of clauses (i) and (ii), received by Equity Interests of the Company (other than Disqualified Equity)) since the Issue Date May 23, 2017 as a contribution to its common equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified StockEquity) or from the issue or sale of convertible or exchangeable Disqualified Stock Equity or convertible or exchangeable debt securities of the Company that have been converted into or exchanged for such Equity Interests (other than Equity Interests (or Disqualified Stock Equity or debt securities) sold to a Subsidiary of the Company), (B) the amount by which Indebtedness of the Company or any Restricted Subsidiary is reduced on the Company’s consolidated balance sheet upon the conversion or exchange after the Issue Date of any such Indebtedness into or for Equity Interests (other than Disqualified Stock) of the Company, and (C) the aggregate net cash proceeds, if any, received by the Company or any of its Restricted Subsidiaries upon any conversion or exchange described in clause (1) or (2) above; plus (3c) to the extent that any Restricted Investment that was made after May 23, 2017 is sold for cash or Cash Equivalents or otherwise liquidated or repaid for cash or Cash Equivalents, the return of capital with respect to such Restricted Investments made by Investment (less the Company and its Restricted Subsidiaries after the Issue Datecost of disposition, an amount equal to the sum of if any); plus (Ad) the net reduction in such Restricted Investments in any Person since May 23, 2017 resulting from (i) dividends, repayments of loans or advances, or other transfers of assets, in each case to the Company or any Restricted Subsidiary, (ii) other repurchases, repayments or redemptions of such Restricted Investments, (iii) the sale of any such Restricted Investment or (iv) the release of any Guarantee (except to the extent any amounts are paid under such Guarantee) plus (B) all amounts representing the return of capital (excluding dividends and distributions) to the Company or any Restricted Subsidiary in respect of such Restricted Investment plus (C) with respect to any Unrestricted Subsidiary that the Board of Directors of the Company redesignates as a Restricted Subsidiary, the Fair Market Value of the Investment in such Subsidiary held by the Company or any of its Restricted Subsidiaries from any Person (including Unrestricted Subsidiaries) or from redesignations of Unrestricted Subsidiaries as Restricted Subsidiaries, to the extent such amounts have not been included in Available Cash for any period commencing on or after May 23, 2017 (items (b), (c) and (d) being referred to as “Incremental Funds”); minus (e) the aggregate amount of Incremental Funds previously expended since May 23, 2017 pursuant to this clause (I) and clause (II) below; or (II) if the Fixed Charge Coverage Ratio for the Company’s most recently ended four full fiscal quarters for which quarterly or annual financial statements have been delivered as provided in Section 4.03 at the time of such redesignation.Restricted Payment is less than 1.75 to 1.0, such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries (excluding Restricted Payments permitted by clauses (2), (3), (4) (to the extent, in the case of clause (4), payments are made to the Company or a Restricted Subsidiary), (5), (6), (7), (8) and (9) of the next succeeding paragraph) during the quarter in which such Restricted Payment is made (such Restricted Payments for purposes of this clause (II) meaning only distributions on common units, preferred units, incentive distribution rights or other Capital Stock of the Company, plus the related distribution on the general partner interest), is less than the sum, without duplication, of: (a) $175.0 million less the aggregate amount of all prior Restricted Payments made by the Company and its Restricted Subsidiaries pursuant to this clause (II)(a) during the period since May 23, 2017; plus (b) Incremental Funds to the extent not previously expended since May 23, 2017 pursuant to this clause (II) or clause (I) above. The preceding provisions of this Section 5.5(a) hereof 4.07 will not prohibit: (i1) the payment of any dividend or the consummation of any irrevocable redemption distribution within 60 days after the date of declaration of the dividend or giving of the redemption notice, as the case may beits declaration, if at the date of declaration or notice, the dividend or redemption payment would have complied with the provisions of this Agreement and the NotesIndenture; (ii2) the making repayment, repurchase, redemption, defeasance or other acquisition or retirement for value of subordinated Indebtedness of the Company or any Guarantor or of any Equity Interests of the Company or any of its Restricted Payment Subsidiaries in exchange for, or out of the net cash proceeds of, a substantially concurrent (a) capital contribution to the Company from any Person (other than a Restricted Subsidiary of the substantially concurrent Company) or (b) issuance or sale (other than to a Subsidiary of the Company) of, Equity Interests of the Company (other than Disqualified Stock) or from the substantially concurrent contribution (other than by a Restricted Subsidiary of the Company) of capital to the Company in respect of its Equity Interests (of the Company, with a sale being deemed substantially concurrent if such repurchase, redemption, defeasance or other acquisition or retirement for value occurs not more than Disqualified Stock)120 days after such sale; provided that proceeds from sale of Disqualified Equity may only be used to repurchase, redeem, defease or otherwise acquire or retire for value subordinated Indebtedness or Disqualified Equity; provided, further that the amount of any such net cash proceeds that are utilized for any such Restricted Payment repurchase, redemption, defeasance or other acquisition or retirement for value will be excluded (or deducted, if included) from clause (iii)(2) the calculation of Section 5.5(a) hereofAvailable Cash and Incremental Funds; (iii3) the repayment, repurchase, redemption, defeasance or other acquisition or retirement for value of Subordinated any subordinated Indebtedness (including of the payment of Company or any required premium and any fees and expenses incurred in connection with such repurchase, redemption, defeasance or other acquisition) Guarantor with the net cash proceeds from a substantially concurrent an incurrence of of, or in exchange for, Permitted Refinancing Indebtedness; provided that the amount of any such net cash proceeds that are utilized for any such Restricted Payment will be excluded from clause (iii)(2) of Section 5.5(a) hereof; (iv4) the payment of any distribution or dividend (or, in the case of any partnership or limited liability company, any similar distribution) by a Restricted Subsidiary of the Company to the holders of the Equity Interests (other than Disqualified Stock) of such Restricted Subsidiary; provided that such dividend or similar distribution is paid to all holders of such its Equity Interests on a pro rata basis based or on their respective holdings of such Equity Interestsa basis more favorable to the Company or a Restricted Subsidiary; (v) the payment of any dividend on the EB-5 Preferred Stock; (vi) the repurchase, redemption or other acquisition or retirement of Equity Interests deemed to occur upon the exercise or exchange of stock options, warrants or other similar rights to the extent such Equity Interests represent a portion of the exercise or exchange price of those stock options, and the repurchase, redemption or other acquisition or retirement of Equity Interests made in lieu of withholding taxes resulting from the exercise or exchange of stock options, warrants or other similar rights; (vii) so long as no Default has occurred and is continuing or would be caused thereby, the declaration and payment of regularly scheduled or accrued dividends to holders of any class or series of Disqualified Stock of the Company or any Restricted Subsidiary of the Company or any class or series of preferred stock of a Restricted Subsidiary of the Company, in each case issued on or after the Issue Date in accordance with the Fixed Charge Coverage Ratio test described in Section 5.7 hereof; (viii) payments to fund the purchase by the Company of fractional shares arising out of stock dividends, splits or combination or business combinations; (ix5) the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company or any direct or indirect parent company of the Company held by any of the Company’s (or any of its Restricted Subsidiaries’) current or former directors officer, director or employeesemployee of the Company or any Affiliate of the Company pursuant to any equity subscription agreement or plan, stock or unit option agreement, shareholders’ agreement or similar agreement; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may not exceed the Fair Market Value thereof and furthermore may not exceed, $5.0 million in any twelve-month period since the Issue Date, $0.5 million calendar year (with unused amounts (with respect to the $0.5 million limit referred to above) in any 12-month period after such date being permitted calendar year to be carried over into succeeding 12-month periods)forward to successive calendar years and added to such amount) plus $20.0 million; provided, further, provided further that the amounts such amount in any such 12-month period calendar year may be increased by an amount not to exceed (1a) the cash proceeds received by the Company or any of its Restricted Subsidiaries from the sale of the Company’s Equity Interests (other than Disqualified Stock) of the Company to any such members of management or directors of the Company or employees its Affiliates that occurs after the Issue Date (provided that the amount of such cash proceeds utilized for any such repurchase, retirement or other acquisition or retirement will not increase the amount available for Restricted Payments under clause (iii) of the immediately preceding paragraph and to the extent the cash proceeds from the sale of such proceeds Equity Interests have not otherwise been applied to the payment of Restricted PaymentsPayments by virtue of clauses (I)(e) or (II)(b) of the preceding paragraph), plus (2b) the cash proceeds of key man life insurance policies received by the Company and or any of its Restricted Subsidiaries after the Issue Date; (x) the purchase or redemption of any Acquired Subordinated Indebtedness of the Company or any of its Restricted Subsidiaries, by application of (i) cash provided from operations in the ordinary course of business or (ii) proceeds from borrowings under the revolving portion of any Credit Facility (so long as within 30 days prior to such purchase or redemption, a corresponding amount of borrowings under the revolving portion of such Credit Facility was repaid from cash provided from operations in the ordinary course of business); provided, in any such case, that the Company is able to incur an additional $1.00 of Indebtedness pursuant to Section 5.5(a) hereof after giving effect to such purchase or redemption; provided, further, that this clause (x) shall not permit the application of any proceeds from any other borrowings under any Credit Facility to effect any such purchase or redemption; and (xi6) so long as no Default (except a Reporting Default) has occurred and is continuing or would be caused thereby, the declaration and payments of dividends on Disqualified Equity issued pursuant to Section 4.09; (7) repurchases of Capital Stock deemed to occur upon exercise of stock options, warrants or other convertible securities if such Capital Stock represents a portion of the exercise price of such options, warrants or other convertible securities, and any repurchase of Capital Stock made in lieu of withholding taxes in connection with any exercise or exchange of stock options, warrants or other convertible securities or vesting or payment of equity participation units or similar awards; (8) the repayment, repurchase, redemption, defeasance or other acquisition or retirement for value of any subordinated Indebtedness pursuant to provisions similar to those in Section 4.15 and Section 4.10; provided that prior to such repayment, repurchase, redemption, defeasance or other acquisition or retirement for value the Company (or a third party to the extent permitted by this Indenture) shall have made a Change of Control Offer or Asset Sale Offer, as the case may be, with respect to the Notes and shall have repurchased all Notes validly tendered and not withdrawn in connection with such Change of Control or Asset Sale Offer; (9) cash payments in lieu of the issuance of fractional shares of Capital Stock in connection with any dividend, split or combination thereof or the exercise of warrants, options or other securities convertible into or exchangeable for Capital Stock of the Company; or (10) Restricted Payments that consist of the Refinery Related Assets in an aggregate amount any transfer to Delek US or its Subsidiaries so long as after giving pro forma effect thereto the Total Leverage Ratio does not exceed 4.00 to exceed $5.0 million since the Issue Date1.00. The amount of all Restricted Payments (other than cash) shall will be the Fair Market Value fair market value on the date of such Restricted Payment of the asset(s) or securities are proposed to be paid, transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to such the Restricted Payment. The Fair Market Value of any cash Restricted Payment shall be its face amount, and except that the Fair Market Value fair market value of any non-cash Restricted Payment exceeding $5.0 million shall dividend or distribution made within 60 days after the date of declaration will be determined conclusively by two senior officers as of the Company acting in good faith whose conclusions with respect thereto shall be set forth in an Officers’ Certificate delivered to the Holders; provided, however, that if the Fair Market Value such date. The fair market value of any non-cash Restricted Payment exceeds $10.0 million, such Fair Market Value shall assets or securities that are required to be valued by this Section 4.07 will be determined conclusively by in the Board manner specified in the definition of Directors of the Company and set forth in a board resolution, and a certified copy of such board resolution shall be delivered to the Holdersthat term. For the purposes of determining compliance with this Section 5.54.07, in the event that (x) if a Restricted Payment meets the criteria of more than one of the exceptions categories of Restricted Payments described in the preceding clauses (i) through (xi) above or is entitled to be made pursuant to Section 5.5(a) hereof1)-(9), the Company shall, will be permitted to classify (or reclassify in whole or in part in its sole discretion, classify ) such Restricted Payment, or later classify, reclassify or re-divide all or a portion of such Restricted Payment, Payment in any manner that complies with this Section 5.54.07 and (y) in the event that a Restricted Payment is made pursuant to clause (I) or (II) of the first paragraph of this Section 4.07, the Company will be permitted to classify (or reclassify in whole or in part in its sole discretion) whether all or any portion thereof is being made with Incremental Funds.

Restricted Payments. (a) The Company will not, and will not permit any of its Restricted Subsidiaries toDeclare or make, 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 any of 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 and other than dividends or distributions payable to the Company or a 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 any direct or indirect parent of the Company; (iii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Subordinated Indebtedness, except a payment of interest or principal at the Stated Maturity thereof; or (iv) make any Restricted Investment (all such payments and other actions set forth in these clauses (i) through (iv) above being collectively referred to as “Restricted Payments”), Payment unless, at the time of and immediately after giving effect to such Restricted Payment: (i) no Default or Event of Default has occurred and is continuing or would occur as a consequence of such Restricted Payment; (ii) the Company would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 5.7 hereof; and (iii) such Restricted Payment, together with the aggregate amount of all other Restricted Payments (including the fair market value of any non-cash amount) made by the Company Borrower and its the Restricted Subsidiaries since after the Issue Closing Date (excluding including Restricted Payments permitted by clauses (iiSections 7.06(b)(i), (iiiii) (with respect to the payment of dividends on Refunding Capital Stock pursuant to clause (c) thereof), (iv), (v), (vi), (vii), (viiivi)(C) and (xiix), but excluding all other Restricted Payments permitted by Section 7.06(b) (and for the avoidance of paragraph (b) of this Section 5.5doubt, all other Permitted Investments)), is less than the sum, without duplication, of: (1) 50% of the Consolidated Net Income of the Company for the period (taken as one accounting period) from the beginning of the fiscal quarter during which the Issue Date occurs Available Amount at such time; provided to the end of the Company’s most recently ended fiscal quarter for which internal financial statements are available at the time of extent such Restricted Payment is to be made out of amounts under clause (or, if such Consolidated Net Income for such period is a deficit, less 100% b) of such deficit); plus (2) 100% the definition of (A)(i) the aggregate net cash proceeds and (ii) the Fair Market Value of “Available Amount,” (x) marketable securities (other than marketable securities no Event of the Company), Default shall have occurred and be continuing or would occur as a consequence thereof and (y) Capital Stock at least $1.00 of a Person (other than the Company or an Affiliate of the Company) engaged in a Permitted Business and (z) other assets used in any Permitted Business, in the case of clauses (i) and (ii), received by the Company since the Issue Date as a contribution Ratio Debt would be permitted to its common equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified Stock) or from the issue or sale of convertible or exchangeable Disqualified Stock or convertible or exchangeable debt securities of the Company that have been converted into or exchanged for such Equity Interests (other than Equity Interests (or Disqualified Stock or debt securities) sold to a Subsidiary of the Company), (B) the amount by which Indebtedness of the Company or any Restricted Subsidiary is reduced on the Company’s consolidated balance sheet upon the conversion or exchange after the Issue Date of any such Indebtedness into or for Equity Interests (other than Disqualified Stock) of the Company, and (C) the aggregate net cash proceeds, if any, received by the Company or any of its Restricted Subsidiaries upon any conversion or exchange described in clause (1) or (2) above; plus (3) with respect to Restricted Investments made by the Company and its Restricted Subsidiaries after the Issue Date, an amount equal to the sum of (A) the net reduction in such Restricted Investments in any Person resulting from (i) repayments of loans or advances, or other transfers of assets, in each case to the Company or any Restricted Subsidiary, (ii) other repurchases, repayments or redemptions of such Restricted Investments, (iii) the sale of any such Restricted Investment or (iv) the release of any Guarantee (except to the extent any amounts are paid under such Guarantee) plus (B) all amounts representing the return of capital (excluding dividends and distributions) to the Company or any Restricted Subsidiary in respect of such Restricted Investment plus (C) with respect to any Unrestricted Subsidiary that the Board of Directors of the Company redesignates as a Restricted Subsidiary, the Fair Market Value of the Investment in such Subsidiary held by the Company or any of its Restricted Subsidiaries at the time of such redesignationbe incurred. (b) The provisions of Section 5.5(a7.06 (a) hereof will not prohibit: (i) the payment of any dividend or other distribution or the consummation of any irrevocable redemption within 60 days after the date of declaration of the dividend or other distribution or giving of the redemption notice, as the case may be, if at the date of declaration or notice, the dividend or other distribution or redemption payment would have complied with the provisions of this Agreement and the NotesSection 7.06; (iia) the making redemption, repurchase, retirement or other acquisition of any Restricted Payment Equity Interest, including any accrued and unpaid dividends thereon (“Treasury Capital Stock”), or Subordinated Indebtedness, of any Loan Party or any Equity Interest of any Parent Entity of the Borrower, in exchange for, or out of the net cash proceeds of of, the substantially concurrent sale or issuance (other than to a Subsidiary of the CompanyRestricted Subsidiary) of, Equity Interests of the Company Borrower or any Parent Entity thereof to the extent contributed to the Borrower (in each case, other than any Disqualified Stock) (“Refunding Capital Stock”), (b) the declaration and payment of dividends on Treasury Capital Stock out of the proceeds of the substantially concurrent sale or issuance (other than Disqualified to a Restricted Subsidiary of the Borrower or to an employee stock ownership plan or any trust established by the Borrower or any of its Restricted Subsidiaries) of Refunding Capital Stock, and (c) or from if immediately prior to the substantially concurrent contribution retirement of Treasury Capital Stock, the declaration and payment of dividends thereon was permitted under clause (vi) of this Section 7.06(b), the declaration and payment of dividends on the Refunding Capital Stock (other than by a Subsidiary Refunding Capital Stock the proceeds of which were used to redeem, repurchase, retire or otherwise acquire any Equity Interests of any Parent Entity of the CompanyBorrower) of capital to in an aggregate amount per year no greater than the Company in respect of its Equity Interests (other than Disqualified Stock); provided that the aggregate amount of any dividends per annum that were declarable and payable on such net cash proceeds that are utilized for any Treasury Capital Stock immediately prior to such Restricted Payment will be excluded from clause (iii)(2) of Section 5.5(a) hereofretirement; (iii) the repurchasedefeasance, redemption, defeasance repurchase, exchange or other acquisition or retirement of (1) Junior Financing of the Borrower or a Subsidiary Guarantor made by exchange for, or out of the proceeds of a sale made within 90 days of, new Indebtedness of the Borrower or a Subsidiary Guarantor or (2) Disqualified Stock made by exchange for, or out of the proceeds of a sale made within 90 days of, Disqualified Stock of the Borrower or a Subsidiary Guarantor that, in each case, is incurred in compliance with Section 7.03; (iv) a Restricted Payment to pay for the repurchase, retirement or other acquisition or retirement for value of Subordinated Indebtedness (including the payment of any required premium and any fees and expenses incurred in connection with such repurchase, redemption, defeasance or other acquisition) with the net cash proceeds from a substantially concurrent incurrence of Permitted Refinancing Indebtedness; provided that the amount of any such net cash proceeds that are utilized for any such Restricted Payment will be excluded from clause (iii)(2) of Section 5.5(a) hereof; (iv) the payment of any dividend (or, in the case of any partnership or limited liability company, any similar distribution) by a Restricted Subsidiary of the Company to the holders of the Equity Interests (other than Disqualified Stock) of the Borrower or any Parent Entity thereof held by any future, present or former employee, director, officer, manager or consultant (or their respective Controlled Investment Affiliates or Immediate Family Members) of the Borrower, any of its Subsidiaries or any of its Parent Entities pursuant to any management equity plan or stock option plan or any other management or employee benefit plan or agreement, or any equity subscription or equity holder agreement (including, for the avoidance of doubt, any principal and interest payable on any notes issued by the Borrower or any Parent Entity thereof in connection with such Restricted Subsidiaryrepurchase, retirement or other acquisition), including any Equity Interest rolled over by management of the Borrower or any Parent Entity thereof in connection with the Transactions; provided that such dividend the aggregate amount of Restricted Payments made under this Section 7.06(b)(iv) does not exceed $10,000,000 in any fiscal year (which amount shall be increased to $20,000,000 following the consummation of a Qualifying IPO) (with unused amounts in any fiscal year being carried over to the succeeding fiscal years); provided, further, that each of the amounts in any fiscal year under this clause may be increased by an amount not to exceed: (A) the cash proceeds from the sale of Equity Interests (other than Disqualified Stock) of the Borrower and, to the extent contributed to the Borrower, the cash proceeds from the sale of Equity Interests of any Parent Entity of the Borrower, in each case to any future, present or similar distribution is paid former employees, directors, officers, managers, or consultants (or their respective Controlled Investment Affiliates or Immediate Family Members) of the Borrower, any of its Subsidiaries or any of its Parent Entities that occurs after the Closing Date, to all holders the extent the cash proceeds from the sale of such Equity Interests on are excluded from the calculation of the Available Amount; plus (B) the cash proceeds of life insurance policies received by the Borrower, the Restricted Subsidiaries or, to the extent such proceeds are contributed to a pro rata basis based on Loan Party, any Parent Entity of the Borrower, in each case, after the Closing Date; less (C) the amount of any Restricted Payments previously made with the cash proceeds described in clauses (A) and (B) of this clause (iv); and provided, further, that cancellation of Indebtedness owing to the Borrower or any Restricted Subsidiary from any future, present or former employees, directors, officers, managers, or consultants (or their respective holdings Controlled Investment Affiliates or Immediate Family Members) of such the Borrower, any Parent Entity of the Borrower or any Restricted Subsidiary in connection with a repurchase of Equity InterestsInterests of the Borrower or any Parent Entities thereof will not be deemed to constitute a Restricted Payment for purposes of this Section 7.06 or any other provision of this Agreement; (v) the payment of any dividend on the EB-5 Preferred Stock; (vi) the repurchase, redemption or other acquisition or retirement of Equity Interests deemed to occur upon the exercise or exchange of stock options, warrants or other similar rights to the extent such Equity Interests represent a portion of the exercise or exchange price of those stock options, and the repurchase, redemption or other acquisition or retirement of Equity Interests made in lieu of withholding taxes resulting from the exercise or exchange of stock options, warrants or other similar rights; (vii) so long as no Default has occurred and is continuing or would be caused thereby, the declaration and payment of regularly scheduled dividends or accrued dividends distributions to holders of any class or series of Disqualified Stock of the Company Borrower or any Restricted Subsidiary of the Company issued in accordance with Section 7.03 or any class or series of preferred stock Preferred Stock of a any Restricted Subsidiary to the extent such dividends or distributions are included in the definition of the Company, in each case issued on or after the Issue Date in accordance with the “Fixed Charge Coverage Ratio test described in Section 5.7 hereofCharges”; (viiivi) payments to fund the purchase by the Company of fractional shares arising out of stock dividends, splits or combination or business combinations; (ixA) the repurchase, redemption declaration and payment of dividends or other acquisition or retirement for value distributions to holders of any Equity Interests class or series of the Company or any Restricted Subsidiary of the Company held by any of the Company’s (or any of its Restricted Subsidiaries’) current or former directors or employees; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may not exceed the Fair Market Value thereof and furthermore may not exceed, in any twelve-month period since the Issue Date, $0.5 million (with unused amounts (with respect to the $0.5 million limit referred to above) in any 12-month period after such date being permitted to be carried over into succeeding 12-month periods); provided, further, that the amounts in any such 12-month period may be increased by an amount not to exceed (1) the cash proceeds received by the Company or any of its Restricted Subsidiaries from the sale of the Company’s Equity Interests Designated Preferred Stock (other than Disqualified Stock) to any such directors or employees that occurs after the Issue Date (provided that the amount of such cash proceeds utilized for any such repurchase, retirement or other acquisition or retirement will not increase the amount available for Restricted Payments under clause (iii) of the immediately preceding paragraph and to the extent such proceeds have not otherwise been applied to the payment of Restricted Payments) plus (2) the cash proceeds of key man life insurance policies received by the Company and its Restricted Subsidiaries after the Issue Date; (x) the purchase or redemption of any Acquired Subordinated Indebtedness of the Company or any of its Restricted Subsidiaries, by application of (i) cash provided from operations in the ordinary course of business or (ii) proceeds from borrowings under the revolving portion of any Credit Facility (so long as within 30 days prior to such purchase or redemption, a corresponding amount of borrowings under the revolving portion of such Credit Facility was repaid from cash provided from operations in the ordinary course of business); provided, in any such case, that the Company is able to incur an additional $1.00 of Indebtedness pursuant to Section 5.5(a) hereof after giving effect to such purchase or redemption; provided, further, that this clause (x) shall not permit the application of any proceeds from any other borrowings under any Credit Facility to effect any such purchase or redemption; and (xi) so long as no Default has occurred and is continuing or would be caused thereby, other Restricted Payments in an aggregate amount not to exceed $5.0 million since the Issue Date. The amount of all Restricted Payments (other than cash) shall be the Fair Market Value on the date of such Restricted Payment of the asset(s) or securities proposed to be paid, transferred or issued by the Company or such Restricted Subsidiary, as Borrower after the case may be, pursuant to such Restricted Payment. The Fair Market Value of any cash Restricted Payment shall be its face amount, and the Fair Market Value of any non-cash Restricted Payment exceeding $5.0 million shall be determined conclusively by two senior officers of the Company acting in good faith whose conclusions with respect thereto shall be set forth in an Officers’ Certificate delivered to the Holders; provided, however, that if the Fair Market Value of any non-cash Restricted Payment exceeds $10.0 million, such Fair Market Value shall be determined conclusively by the Board of Directors of the Company and set forth in a board resolution, and a certified copy of such board resolution shall be delivered to the Holders. For purposes of determining compliance with this Section 5.5, in the event that a Restricted Payment meets the criteria of more than one of the exceptions described in (i) through (xi) above or is entitled to be made pursuant to Section 5.5(a) hereof, the Company shall, in its sole discretion, classify such Restricted Payment, or later classify, reclassify or re-divide all or a portion of such Restricted Payment, in any manner that complies with this Section 5.5.Closing Date;

Restricted Payments. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, directly Directly or indirectly: (i) declare or pay any dividend or make any other payment distribution (by reduction of capital or distribution on account of the Company’s otherwise), whether in cash, property, securities or a combination thereof, with respect to any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company or any of 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) dividends and distributions on Equity Interests payable solely by the issuance of additional shares of Equity Interests of the Company and other than person paying such dividends or distributions payable to the Company distributions) or a directly or indirectly redeem, purchase, retire or otherwise acquire for value (or permit any Restricted Subsidiary to purchase or acquire) any shares of the Company);any class of its Equity Interests or set aside any amount for any such purpose: (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 any direct or indirect parent of the Company; (iii) make any principal payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value value, any Subordinated IndebtednessIndebtedness of the Borrower or any Subsidiary Guarantor (excluding the purchase, repurchase or other acquisition of 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), except a payment of interest or principal at the Stated Maturity thereof; or (iviii) make any Restricted Investment not permitted by Section 6.01; (all such payments and other actions set forth in these clauses (i) through (iviii) above being collectively referred to as “Restricted Payments”), unless, at the time of and after giving effect to such Restricted Payment: (iA) no Default or Event of Default has occurred and is continuing or would occur as a consequence of such Restricted Payment; (iiB) the Company would, at the time of after giving effect to such Restricted Payment and after giving pro forma effect thereto on a Pro Forma Basis as if such Restricted Payment had been made at occurred on the beginning first day of the applicable four-quarter period, most recent period of four consecutive fiscal quarters for which financial statements have been permitted to incur at least $1.00 of additional Indebtedness delivered pursuant to Section 5.04(a) or (b), the Fixed Charge Coverage Ratio test set forth Borrower shall be in Section 5.7 hereofcompliance with Sections 6.10 and 6.11; and (iiiC) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company Borrower and its Restricted Subsidiaries since the Issue Third Amendment Effective Date (excluding Restricted Payments permitted by pursuant to clauses (iii), (iii), (iv), (v), (vi), (vii), (viiiii) and (xiiii) of the next succeeding paragraph (b) of this Section 5.5), is less than the sum, without duplication, of: (1) 50% of the Consolidated Net Income of the Company Borrower for the period (taken as one accounting period) from the beginning of the fiscal quarter during which the Issue Date occurs July 1, 2011 to the end of the CompanyBorrower’s most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment have been delivered pursuant to Section 5.04(a) or (b) (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit); plus (2) 100% of (A)(i) Equity Issuance Proceeds, to the aggregate net cash proceeds and (ii) the Fair Market Value of (x) marketable securities (other than marketable securities of the Company), (y) Capital Stock of a Person (other than the Company or an Affiliate of the Company) engaged in a Permitted Business and (z) other assets used in any Permitted Business, in the case of clauses (i) and (ii), received by the Company since the Issue Date as a contribution to its common equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified Stock) or from the issue or sale of convertible or exchangeable Disqualified Stock or convertible or exchangeable debt securities of the Company that have been converted into or exchanged for extent such Equity Interests (other than Equity Interests (or Disqualified Stock or debt securities) sold Issuance Proceeds are not utilized to a Subsidiary of the Companymake Investments pursuant to Section 6.01(e), (B) the amount by which Indebtedness of the Company or any Restricted Subsidiary is reduced on the Company’s consolidated balance sheet upon the conversion or exchange after the Issue Date of any such Indebtedness into or for Equity Interests (other than Disqualified Stock) of the Company, and (C) the aggregate net cash proceeds, if any, received by the Company or any of its Restricted Subsidiaries upon any conversion or exchange described in clause (1) or (2) above; plus (3) with respect to Restricted Investments made by the Company and its Restricted Subsidiaries after the Issue Date, an amount equal to the sum of (A) the net reduction in such Restricted Investments in any Person resulting from (i) repayments of loans or advances, or other transfers of assets, in each case to the Company or any Restricted Subsidiary, (ii) other repurchases, repayments or redemptions of such Restricted Investments, (iii) the sale of any such Restricted Investment or (iv) the release of any Guarantee (except to the extent that any amounts are paid under such GuaranteeRestricted Investment that was made after the Third Amendment Effective Date is sold for cash or otherwise liquidated or repaid for cash, 100% of the aggregate amount received (in each case, capped at the size of the initial Restricted Investment) plus in cash and the Fair Market Value of assets other than cash received; plus (B) all amounts representing the return of capital (excluding dividends and distributions4) to the Company or any Restricted Subsidiary in respect of such Restricted Investment plus (C) with respect to extent that any Unrestricted Subsidiary that the Board of Directors of the Company redesignates Borrower designated as such after the Third Amendment Effective Date is redesignated as a Restricted SubsidiarySubsidiary after the Third Amendment Effective Date or has been merged into, consolidated or amalgamated with or into, or transfers or conveys its assets to, the Borrower or a Restricted Subsidiary of the Borrower, 100% of the Fair Market Value of the Borrower’s Investment in such Subsidiary held by as of the Company or any of its Restricted Subsidiaries at the time date of such redesignation, combination or transfer (or of the assets transferred or conveyed, as applicable) after deducting any Indebtedness associated with the Unrestricted Subsidiary so designated or combined or any Indebtedness associated with the assets so transferred or conveyed; plus (5) 100% of any dividends or distributions received by the Borrower or a Restricted Subsidiary of the Borrower after the Third Amendment Effective Date from an Unrestricted Subsidiary of the Borrower, to the extent that such dividends or distributions were not otherwise included in the Consolidated Net Income of the Borrower for such period. (b) The preceding provisions of Section 5.5(a) hereof will not prohibit: (i) Restricted Payments in an amount not to exceed $35 million in 2011 and not to exceed $75 million in any calendar year thereafter (with unused amounts in any calendar year being permitted to be carried over for the two succeeding calendar years); (ii) other Restricted Payments in an aggregate amount not to exceed $400 million since the Third Amendment Effective Date; (iii) the payment of any dividend or distribution or the consummation of any irrevocable redemption within 60 sixty (60) days after the date of declaration of the dividend or distribution or giving of the redemption notice, as the case may be, if if, at the date of declaration or notice, the dividend dividend, distribution or redemption payment would have complied with the provisions of this Agreement and the NotesAgreement; (iiiv) the making of any Restricted Payment in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Subsidiary of the CompanyBorrower) of, Equity Interests of the Company (other than Disqualified Stock) Borrower or from the substantially concurrent contribution (other than by a Subsidiary of the Company) of common equity capital to the Company in respect of its Equity Interests (other than Disqualified Stock)Borrower; provided that the amount of any such net cash proceeds that are utilized for any such Restricted Payment will be excluded from clause (iii)(2) of Section 5.5(a) hereof; (iii) the repurchase, redemption, defeasance or other acquisition or retirement for value of Subordinated Indebtedness (including the payment of any required premium and any fees and expenses incurred in connection with such repurchase, redemption, defeasance or other acquisition) with the net cash proceeds from a substantially concurrent incurrence of Permitted Refinancing Indebtedness; provided that the amount of any such net cash proceeds that are utilized for any such Restricted Payment will be excluded from clause (iii)(2) of Section 5.5(a) hereof; (iv) the payment of any dividend (or, in the case of any partnership or limited liability company, any similar distribution) by a Restricted Subsidiary of the Company to the holders of the Equity Interests (other than Disqualified Stock) of such Restricted Subsidiary; provided that such dividend or similar distribution is paid to all holders of such Equity Interests on a pro rata basis based on their respective holdings of such Equity Interests6.06(a)(C)(2); (v) the payment of any dividend on the EB-5 Preferred Stock; (vi) the repurchase, redemption or other acquisition or retirement of Equity Interests deemed to occur upon the exercise or exchange of stock options, warrants or other similar rights to the extent such Equity Interests represent a portion of the exercise or exchange price of those stock options, and the repurchase, redemption or other acquisition or retirement of Equity Interests made in lieu of withholding taxes resulting from the exercise or exchange of stock options, warrants or other similar rights; (vii) so long as no Default has occurred and is continuing or would be caused thereby, the declaration and payment of regularly scheduled or accrued dividends to holders of any class or series of Disqualified Stock of the Company or any Restricted Subsidiary of the Company or any class or series of preferred stock of a Restricted Subsidiary of the Company, in each case issued on or after the Issue Date in accordance with the Fixed Charge Coverage Ratio test described in Section 5.7 hereof; (viii) payments to fund the purchase by the Company of fractional shares arising out of stock dividends, splits or combination or business combinations; (ix) the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company Borrower or any Restricted Subsidiary of the Company Borrower held by any of the Company’s (or any of its Restricted Subsidiaries’) current or former directors officer, director, consultant or employees; provided that employee of the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may not exceed the Fair Market Value thereof and furthermore may not exceed, in any twelve-month period since the Issue Date, $0.5 million (with unused amounts (with respect to the $0.5 million limit referred to above) in any 12-month period after such date being permitted to be carried over into succeeding 12-month periods); provided, further, that the amounts in any such 12-month period may be increased by an amount not to exceed (1) the cash proceeds received by the Company Borrower or any of its Restricted Subsidiaries from or any Plan; (vi) the sale repurchase of Equity Interests deemed to occur upon the exercise of stock options to the extent such Equity Interests represent a portion of the Company’s exercise price of those stock options; (vii) any Restricted Payment made by a Restricted Subsidiary of the Borrower to the holders of its Equity Interests on a pro rata basis; (other than Disqualified Stockviii) to any such directors or employees that occurs after Restricted Payments arising as a result of Permitted Receivables Financings; (ix) the Issue Date (provided that the amount of such cash proceeds utilized for any such repurchase, retirement redemption, defeasance or other acquisition or retirement will not increase the amount available for Restricted Payments under clause (iii) value of Subordinated Indebtedness of the immediately preceding paragraph and to Borrower or any Restricted Subsidiary with the extent such proceeds have not otherwise been applied to the payment of Restricted Payments) plus (2) the net cash proceeds from a substantially concurrent incurrence of key man life insurance policies received by the Company and its Restricted Subsidiaries after the Issue Date;Permitted Refinancing Indebtedness; and (x) any payments made or to be made in connection with the purchase or redemption of any Acquired Subordinated Indebtedness consummation of the Company or any of its Restricted Subsidiaries, by application of (i) cash provided from operations in the ordinary course of business or (ii) proceeds from borrowings under the revolving portion of any Credit Facility (so long as within 30 days prior to such purchase or redemption, a corresponding amount of borrowings under the revolving portion of such Credit Facility was repaid from cash provided from operations in the ordinary course of business); provided, in any such case, that the Company is able to incur an additional $1.00 of Indebtedness pursuant to Section 5.5(a) hereof after giving effect to such purchase or redemption; provided, further, that this clause (x) shall not permit the application of any proceeds from any other borrowings under any Credit Facility to effect any such purchase or redemption; and (xi) so long as no Default has occurred and is continuing or would be caused thereby, other Restricted Payments in an aggregate amount not to exceed $5.0 million since the Issue DateTransactions. The amount of all Restricted Payments (other than cash) shall will be the Fair Market Value on the date of such the Restricted Payment of the asset(s) or securities proposed to be paid, transferred or issued by the Company Borrower or such Restricted Subsidiary, as the case may be, pursuant to such the Restricted Payment. The Fair Market Value of any cash Restricted Payment shall be its face amount, and the Fair Market Value of any non-cash Restricted Payment exceeding $5.0 million shall be determined conclusively by two senior officers of the Company acting in good faith whose conclusions with respect thereto shall be set forth in an Officers’ Certificate delivered to the Holders; provided, however, that if the Fair Market Value of any non-cash Restricted Payment exceeds $10.0 million, such Fair Market Value shall be determined conclusively by the Board of Directors of the Company and set forth in a board resolution, and a certified copy of such board resolution shall be delivered to the Holders. For purposes of determining compliance with this Section 5.5, in the event that a Restricted Payment meets the criteria of more than one of the exceptions described in (i) through (xi) above or is entitled to be made pursuant to Section 5.5(a) hereof, the Company shall, in its sole discretion, classify such Restricted Payment, or later classify, reclassify or re-divide all or a portion of such Restricted Payment, in any manner that complies with this Section 5.5.

Restricted Payments. (a) The Company will not, and will 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 or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company or any of 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 (such, in each case other than dividends or distributions payable declared or paid in Equity Interests (other than Disqualified Stock) of the Company and other than dividends or distributions payable declared or paid to the Company or a any of its Restricted Subsidiary of the Company)Subsidiaries; (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 (other than any direct or indirect parent such Equity Interests owned by a Restricted Subsidiary of the Company); (iii3) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value value, any Subordinated IndebtednessObligation, except a payment of interest or principal at the its Stated Maturity thereofMaturity; or (iv4) make any Restricted Investment other than a Permitted Investment (all such payments and other actions set forth in these clauses (i1) through (iv3) above and this clause (4) being collectively referred to as “Restricted Payments”), unless, unless at the time of and after giving effect to such Restricted Payment: (iA) no Default or Event of Default has shall have occurred and is continuing or would occur as a consequence of such Restricted Payment;be continuing; and (iiB) the Company would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 5.7 hereof4.03(a); and (iiiC) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and or any of its Restricted Subsidiaries since after the Issue Date (excluding Restricted Payments permitted by clauses clause (ii2), (iii3), (iv4), (v5), (vi6), (vii8), (9), (viii10), (11) and or (xi12) of paragraph (b) of this Section 5.54.04(b)), is less than the sum, without duplication, sum of: (1i) 50% of the Consolidated Net Income of the Company for the period (taken as one accounting period) from the beginning of the fiscal quarter during which the Issue Date occurs to the end of the Company’s most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficitloss, less 100% of such deficitloss); , plus (2ii) 100% of (A)(i) the aggregate net cash proceeds and (ii) other than Designated Proceeds), or the Fair Market Value of (x) marketable securities (assets or property other than marketable securities of the Company), (y) Capital Stock of a Person (other than the Company or an Affiliate of the Company) engaged in a Permitted Business and (z) other assets used in any Permitted Business, in the case of clauses (i) and (ii)cash, received by the Company from the issue or sale, in either case, since the Issue Date as a contribution to its common equity capital or from the issue or sale of (I) Equity Interests of the Company (other than Disqualified Stock), or (II) or from the issue or sale of convertible or exchangeable Disqualified Stock or convertible or exchangeable debt securities of the Company that have been converted into into, or exchanged for for, such Equity Interests (Interests, together with the aggregate cash received at the time of such conversion or exchange, other than Equity Interests (or Disqualified Stock or convertible or exchangeable debt securities) sold to a Restricted Subsidiary of the Company)Company and other than Disqualified Stock or debt securities that have been converted into or exchanged for Disqualified Stock, plus (Biii) in case any Unrestricted Subsidiary has been redesignated a Restricted Subsidiary pursuant to the amount by which Indebtedness terms of Section 4.09(a) or has been merged or consolidated with or into, or transfers or otherwise disposes of all of substantially all of its properties or assets to or is liquidated into, the Company or any a Restricted Subsidiary is reduced on Subsidiary, the Company’s consolidated balance sheet upon lesser of, at the conversion date of such redesignation, merger, consolidation, transfer, disposition or exchange after liquidation (I) the Issue Date of any such Indebtedness into or for Equity Interests book value (other than Disqualified Stockdetermined in accordance with GAAP) of the Company, and (C) the aggregate net cash proceeds, if any, received by the Company or any of its Restricted Subsidiaries upon any conversion or exchange described in clause (1) or (2) above; plus (3) with respect to Restricted Investments made by the Company and its Restricted Subsidiaries in such Unrestricted Subsidiary (or of the properties or assets disposed of, as applicable) and (II) the Fair Market Value of such Investment in such Unrestricted Subsidiary, in each case after deducting any Indebtedness of such Unrestricted Subsidiary, plus (iv) to the extent not already included in Consolidated Net Income for such period, (I) if any Restricted Investment that was made by the Company or any Restricted Subsidiary after the Issue DateDate is sold for cash or otherwise liquidated or repaid for cash, an amount equal the cash return of capital with respect to the sum of such Restricted Investment resulting from such sale, liquidation or repayment (Aless any out-of-pocket costs incurred in connection with any such sale) and (II) the net reduction in such Restricted Investments in any Person Investment resulting from (i) payments of interest, dividends, principal repayments and other transfers and distributions of loans or advancescash, assets or other transfers of assetsproperty, in each case an amount not to exceed the Company or any Restricted Subsidiary, (ii) other repurchases, repayments or redemptions aggregate amount of such Restricted Investments, (iii) the sale of any such Restricted Investment or (iv) the release of any Guarantee (except to the extent any amounts are paid under such Guarantee) plus (B) all amounts representing the return of capital (excluding dividends and distributions) to the Company or any Restricted Subsidiary in respect of such Restricted Investment plus (C) with respect to any Unrestricted Subsidiary that the Board of Directors of the Company redesignates as a Restricted Subsidiary, the Fair Market Value of the Investment in such Subsidiary held by the Company or any of its Restricted Subsidiaries at the time of such redesignationInvestment. (b) The provisions of Section 5.5(a4.04(a) hereof will shall not prohibit: (i1) the payment of any dividend or the consummation of any an irrevocable redemption of Subordinated Obligations within 60 days after the date of the declaration of the such dividend or giving the delivery of the redemption noticeirrevocable notice of redemption, as the case may be, if at the date of the declaration or noticethe date on which such irrevocable notice is delivered, the such dividend or redemption payment would have complied with the provisions of this Agreement and the NotesSupplemental Indenture; (ii2) the making of any Restricted Payment Payments described in exchange for, clause (2) or (3) of Section 4.04(a) out of the net cash proceeds (other than Designated Proceeds) of the substantially concurrent sale or issuance (a sale or issuance will be deemed substantially concurrent if such Restricted Payment occurs not more than 45 days after such sale or issuance) (other than to a Restricted Subsidiary of the Company) of, of Equity Interests of the Company (other than Disqualified Stock) or from the substantially concurrent contribution (other than by a Subsidiary of the Company) of capital to the Company in respect of its Equity Interests (other than any Disqualified Stock); , provided that the amount of any such net cash proceeds that are utilized for any such Restricted Payment will shall be excluded from clause (iii)(2C)(ii) of Section 5.5(a) hereof4.04(a)(4); (iii3) the repurchasemaking of any principal payment on, or the defeasance, redemption, defeasance repurchase or other acquisition or retirement for value of of, prior to its Stated Maturity, any Subordinated Indebtedness (including the payment of any required premium and any fees and expenses incurred in connection with such repurchase, redemption, defeasance or other acquisition) Obligation with the net cash proceeds from a substantially concurrent an incurrence of of, or in exchange for the issuance of, Permitted Refinancing Indebtedness; provided that the amount of any such net cash proceeds that are utilized for any such Restricted Payment will be excluded from clause (iii)(2) of Section 5.5(a) hereof; (iv4) the payment of any dividend (or, in the case of any partnership or limited liability company, any similar distribution) distribution by a Restricted Subsidiary of the Company to the holders of the its Equity Interests (other than Disqualified Stock) of such Restricted Subsidiary; provided that such dividend or similar distribution is paid to all holders of such Equity Interests on a pro rata basis based on their respective holdings of such Equity Interests; (v) and the payment of any dividend on or distribution by the EB-5 Preferred Stock; (vi) the repurchase, redemption or other acquisition or retirement of Equity Interests deemed to occur upon the exercise or exchange of stock options, warrants or other similar rights Company to the extent such Equity Interests represent a portion of the exercise or exchange price of those stock options, and the repurchase, redemption or other acquisition or retirement of Equity Interests made in lieu of withholding taxes resulting from the exercise or exchange of stock options, warrants or other similar rights; (vii) so long as no Default has occurred and is continuing or would be caused thereby, the declaration and payment of regularly scheduled or accrued dividends to holders of any class or series of its Disqualified Stock, provided that such Disqualified Stock of the Company or any Restricted Subsidiary of the Company or any class or series of preferred stock of a Restricted Subsidiary of the Company, in each case is issued on or after the Issue Date in accordance with the Fixed Charge Coverage Ratio test described in Section 5.7 hereof4.03(a); (viii5) payments to fund (A) the purchase by acquisition in open-market purchases of our common stock of the Company for matching contributions to its employee stock purchase and deferred compensation plans in the ordinary course of fractional shares arising out of stock dividends, splits business or combination or business combinations; (ixB) the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company held by any current or former officer, employee, consultant or director of the Company’s Company (or any of its Restricted Subsidiaries’) current pursuant to the terms of agreements (including employment agreements) and plans approved by the Company’s Board of Directors, including any management equity plan or former directors stock option plan or employees; provided any other management or employee benefit plan, agreement or trust, provided, however, that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may pursuant to this clause (5) shall not exceed the Fair Market Value thereof and furthermore may not exceed, sum of (x) $15 million in any twelve-month period since the Issue Date, $0.5 million (with unused amounts (with respect to the $0.5 million limit referred to above) in any 12-month period after such date being permitted to be carried over into succeeding 12the following twelve-month periodsperiod); provided, further, that the amounts in any such 12-month period may be increased by an amount not to exceed (1y) the cash aggregate net proceeds received by the Company or any of its Restricted Subsidiaries during such twelve-month period from the sale issuance of the Company’s such Equity Interests (other than Disqualified Stock) pursuant to any such directors agreements or employees that occurs after the Issue Date plans and (provided that the amount of such cash proceeds utilized for any such repurchase, retirement or other acquisition or retirement will not increase the amount available for Restricted Payments under clause (iii) of the immediately preceding paragraph and to the extent such proceeds have not otherwise been applied to the payment of Restricted Payments) plus (2z) the net cash proceeds of key man life insurance policies received by the Company and or its Restricted Subsidiaries after the Issue Date; (x6) (A) in connection with an acquisition by the Company or any Restricted Subsidiary, the return of Equity Interests constituting a portion of the purchase consideration in settlement of indemnification claims or (B) repurchases of Equity Interests deemed to occur upon the cashless exercise of stock options; (7) repurchases of Subordinated Obligations at a purchase price not greater than (A) 101% of the principal amount (or accreted value, if applicable) of such Subordinated Obligations and accrued and unpaid interest thereon in the event of a Change of Control or (B) 100% of the principal amount (or accreted value, if applicable) of such Subordinated Obligations and accrued and unpaid interest thereon in the event of an Asset Sale, in connection with any change in control offer or asset sale offer required by the terms of such Subordinated Indebtedness, but only if: (A) in the case of a Change of Control, the Company has first complied with and fully satisfied its obligations under Section 4.12; or (B) in the case of an Asset Sale, the Company has complied with and fully satisfied its obligations in accordance with Section 4.07; (8) the payment of reasonable and customary directors’ fees to the members of the Company’s Board of Directors, provided that such fees are consistent with past practice or current requirements; (9) the purchase by the Company of fractional shares arising out of stock dividends, splits or redemption combinations or business combinations; (10) the declaration and payment of any Acquired Subordinated Indebtedness dividends on mandatorily convertible preferred stock of the Company (other than Disqualified Stock) issued after the Issue Date in an aggregate amount not to exceed the amount of Designated Proceeds; (11) Restricted Payments consisting of dividends or other distributions on the common stock of the Company or any purchases of its Restricted Subsidiaries, by application of (i) cash provided from operations common stock in the ordinary course of business or (ii) proceeds from borrowings under the revolving portion of any Credit Facility (so long as within 30 days prior to such purchase or redemption, a corresponding an aggregate amount of borrowings under up to $200 million since the revolving portion of such Credit Facility was repaid from cash provided from operations in the ordinary course of business); provided, in any such case, that the Company is able to incur an additional $1.00 of Indebtedness pursuant to Section 5.5(a) hereof after giving effect to such purchase or redemption; provided, further, that this clause (x) shall not permit the application of any proceeds from any other borrowings under any Credit Facility to effect any such purchase or redemptionIssue Date; and (xi12) so long as no Default has occurred and is continuing or would be caused thereby, other Restricted Payments in an aggregate amount since the Issue Date not to exceed the greater of (A) $5.0 40 million since and (B) 3.0% of Consolidated Tangible Assets as of the Issue Datedate of making any such Restricted Payment; provided, further, that, with respect to clauses (2), (3), (5), (6), (7), (8), (10), (11) and (12) of this Section 4.04(b), no Default or Event of Default shall have occurred and be continuing. (c) In determining whether any Restricted Payment is permitted by this Section 4.04, the Company may allocate or reallocate all or any portion of such Restricted Payment among clauses (1) through (12) of Section 4.04(b) or among such clauses and Section 4.04(a), provided that at the time of such allocation or reallocation, all such Restricted Payments, or allocated portions thereof, would be permitted under the various provisions of one or more of clauses (1) through (12) of Section 4.04(b) and Section 4.04(a). The amount of all Restricted Payments (other than cash) shall be the Fair Market Value on the date of the transfer, incurrence or issuance of such Restricted Payment of the asset(s) or securities proposed to be paid, transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to such Restricted Payment. The Fair Market Value of any cash Restricted Payment shall be its face amount, and the Fair Market Value of any non-cash Restricted Payment exceeding $5.0 million shall be determined conclusively by two senior officers of the Company acting in good faith whose conclusions with respect thereto shall be set forth in an Officers’ Certificate delivered to the Holders; provided, however, that if the Fair Market Value of any non-cash Restricted Payment exceeds $10.0 million, such Fair Market Value shall be determined conclusively by the Board of Directors of the Company and set forth in a board resolution, and a certified copy of such board resolution shall be delivered to the Holders. For purposes of determining compliance with this Section 5.5, in the event that a Restricted Payment meets the criteria of more than one of the exceptions described in (i) through (xi) above or is entitled to be made pursuant to Section 5.5(a) hereof, the Company shall, in its sole discretion, classify such Restricted Payment, or later classify, reclassify or re-divide all or a portion of such Restricted Payment, in any manner that complies with this Section 5.5.

Restricted Payments. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly: (i1) declare or pay (without duplication) any dividend dividend, or make any other payment or distribution distribution, on account of the Company’s 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 any of 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 and other than dividends or distributions payable to the Company or a Restricted Subsidiary of the Company); (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 any direct or indirect parent of the Company; (iii3) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Subordinated IndebtednessIndebtedness (excluding any intercompany Indebtedness between or among the Company and any of its Restricted Subsidiaries), except a payment of interest or principal at the Stated Maturity thereof; or (iv4) make any Restricted Investment (all such payments and other actions set forth in these clauses (i1) through (iv4) above being collectively referred to as “Restricted Payments”), unless, at the time of and after giving effect to such Restricted Payment: (i1) no Default or Event of Default has occurred and is continuing or would occur as a consequence of such Restricted Payment; (ii2) the Company would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Debt to Cash Flow Ratio test set forth in Section 5.7 4.09(a) hereof; and (iii3) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries since the Issue Date November 3, 2006 (excluding Restricted Payments permitted by clauses (ii2), (iii3), (iv4), (v5), (vi6), (vii7), (viii8), (9) and (xi12) of paragraph (b) of this Section 5.54.07), is less than the sum, without duplication, of: (1A) 50100% of the Company’s Consolidated Net Income of the Company Cash Flow for the period (taken as one accounting period) from the beginning of the fiscal quarter during which the Issue Date occurs January 1, 2007 to the end of the Company’s most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficitPayment, less 100% the product of such deficit)1.5 times the Company’s Consolidated Interest Expense for the same period; plus (2B) 100% of (A)(i) the aggregate net cash proceeds and (ii) the Fair Market Value of (x) marketable securities (other than marketable securities of the Company), (y) Capital Stock of a Person (other than the Company or an Affiliate of the Company) engaged in a Permitted Business and (z) other assets used in any Permitted Business, in the case of clauses (i) and (ii), received by the Company since the Issue Date after November 3, 2006 as a contribution to its common equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified Stock) or from the issue or sale of convertible or exchangeable Disqualified Stock or convertible or exchangeable debt securities of the Company that have been converted into or exchanged for such Equity Interests (other than Equity Interests (or Disqualified Stock or debt securities) sold to a Subsidiary of the Company), (B) the amount by which Indebtedness of the Company or any Restricted Subsidiary is reduced on the Company’s consolidated balance sheet upon the conversion or exchange after the Issue Date of any such Indebtedness into or for Equity Interests (other than Disqualified Stock) of the Company, and (C) the aggregate net cash proceeds, if any, received by the Company or any of its Restricted Subsidiaries upon any conversion or exchange described in clause (1) or (2) above; plus (C) to the extent that any Restricted Investment that was made after November 3) with respect to Restricted Investments made by the Company and its Restricted Subsidiaries after the Issue Date, 2006 is sold for cash or Cash Equivalents, or otherwise is liquidated or repaid for cash or Cash Equivalents, an amount equal to the sum of such cash and Cash Equivalents; plus (AD) the net reduction in such Restricted Investments in any Person resulting from (i) repayments of loans or advances, or other transfers of assets, in each case to the Company or any Restricted Subsidiary, (ii) other repurchases, repayments or redemptions of such Restricted Investments, (iii) the sale of any such Restricted Investment or (iv) the release of any Guarantee (except to the extent any amounts are paid under such Guarantee) plus (B) all amounts representing the return of capital (excluding dividends and distributions) to the Company or any Restricted Subsidiary in respect of such Restricted Investment plus (C) with respect to that any Unrestricted Subsidiary that the Board of Directors of the Company redesignates designated as such after November 3, 2006 is redesignated as a Restricted SubsidiarySubsidiary after November 3, 2006, the Fair Market Value of the Company’s Investment in such Subsidiary held as of the date of such redesignation, other than to the extent such Investment constituted a Permitted Investment; plus (E) 100% of any cash dividends or cash distributions actually received directly or indirectly by the Company or a Restricted Subsidiary of the Company that is a Guarantor after November 3, 2006 from an Unrestricted Subsidiary of the Company, in each case, to the extent that such dividends, cash distributions or other property were not otherwise included in the Consolidated Net Income of the Company for such period and other than to the extent such Investment constituted a Permitted Investment; minus (F) the aggregate amount of any Net Equity Proceeds taken into account for purposes of its Restricted Subsidiaries at incurring Indebtedness pursuant to clause (14) of the time definition of such redesignation“Permitted Debt” set forth in Section 4.09(b) hereof. (b) The So long as no Default has occurred and is continuing or would be caused thereby, the provisions of Section 5.5(a4.07(a) hereof will not prohibit: (i1) the payment of any dividend or the consummation of any irrevocable redemption within 60 days after the date of declaration of the dividend or giving of the redemption notice, as the case may be, if at the date of declaration or notice, the dividend or redemption payment would have complied with the provisions of this Agreement and the NotesIndenture; (ii2) the making of any Restricted Payment in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Subsidiary of the Company) of, Equity Interests of the Company (other than Disqualified Stock) or from the substantially concurrent contribution (other than by a Subsidiary of the Company) of common equity capital to the Company in respect of its Equity Interests (other than Disqualified Stock)Company; provided that the amount of any such net cash proceeds that are utilized for any such Restricted Payment will be excluded from clause (iii)(23)(B) of Section 5.5(a4.07(a) hereof; provided further that any Net Equity Proceeds (x) used for making a Restricted Investment pursuant to clause (10) of this Section 4.07(b) or (y) taken into account for purposes of incurring Indebtedness pursuant to clause (14) of the definition of “Permitted Debt” set forth in Section 4.09(b) hereof may not also be used to make a Restricted Payment pursuant to this clause (2); (iii3) the repurchase, redemption, defeasance or other acquisition or retirement for value of Subordinated Indebtedness (including of the payment of Company or any required premium and any fees and expenses incurred in connection with such repurchase, redemption, defeasance or other acquisition) Subsidiary Guarantor with the net cash proceeds from a substantially concurrent incurrence of Permitted Refinancing Indebtedness; provided that the amount of any such net cash proceeds that are utilized for any such Restricted Payment will be excluded from clause (iii)(2) of Section 5.5(a) hereof; (iv4) the payment of any dividend (or, in the case of any partnership or limited liability company, any similar distribution) by a Restricted Subsidiary of the Company to the holders of the Equity Interests (other than Disqualified Stock) of such Restricted Subsidiary; provided that such dividend or similar distribution is paid to all holders of such its Equity Interests on a pro rata basis based on their respective holdings of such Equity Interestsbasis; (v5) the payment repurchase, redemption or other acquisition or retirement for value of any dividend on Equity Interests of Parent, HoldCo, the EB-5 Preferred StockCompany, any Restricted Subsidiary of the Company or any direct or indirect parent of the Company held by any current or former officer, director, employee or consultant of Parent, HoldCo, the Company or any of its Restricted Subsidiaries pursuant to any equity subscription agreement, stock option agreement, shareholders’ agreement or similar agreement; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may not exceed an amount equal to $20.0 million in any twelve-month period; provided further, that such amount in any twelve-month period may be increased by an amount equal to (a) the net cash proceeds contributed to the Company from the sale of Equity Interests of Parent to current or former members of management, directors, consultants or employees that occurs after the Issue Date plus (b) the net cash proceeds of key man life insurance policies received by Parent or its Restricted Subsidiaries after the Issue Date; provided further, that such amount in any twelve month period shall be reduced by the amount of Indebtedness incurred in such twelve-month period pursuant to clause (22) of Section 4.09(b) hereof; (vi6) the repurchase, redemption or other acquisition or retirement of Equity Interests deemed to occur upon the exercise or exchange of stock options, warrants or other similar rights to the extent such Equity Interests represent a portion of the exercise or exchange price of those stock options, warrants or other similar rights, and the repurchase, redemption or other acquisition or retirement of Equity Interests made in lieu of withholding taxes resulting from the vesting, exercise or exchange of stock options, warrants or other similar rights; (vii7) so long as no Default has occurred and is continuing or would be caused thereby, the declaration and payment of regularly scheduled or accrued dividends to holders of any class or series of Disqualified Stock of the Company or any Restricted Subsidiary of the Company or any class or series of preferred stock of a Restricted Subsidiary of the Company, in each case issued on or after the Issue Date in accordance with the Fixed Charge Coverage Debt to Cash Flow Ratio test described in Section 5.7 4.09(a) hereof; (viii) payments 8) Permitted Payments to fund the purchase by the Company of fractional shares arising out of stock dividends, splits or combination or business combinationsParent; (ix9) the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company held by any of the Company’s (or any of its Restricted Subsidiaries’) current or former directors or employees; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may not exceed the Fair Market Value thereof and furthermore may not exceed, in any twelve-month period since the Issue Date, $0.5 million (with unused amounts (with respect Parent to the $0.5 million limit referred extent necessary to above) in comply with law or to prevent the loss or secure the renewal or reinstatement of any 12-month period after such date being permitted to be carried over into succeeding 12-month periods); provided, further, that the amounts in any such 12-month period may be increased by an amount not to exceed (1) the cash proceeds received FCC License held by the Company or any of its Subsidiaries; (10) Restricted Subsidiaries from the sale Investments in an amount equal to 100% of the Company’s Equity Interests (other than Disqualified Stock) to any such directors or employees that occurs after the Issue Date (provided that the aggregate amount of such cash proceeds utilized any Net Equity Proceeds, less the aggregate amount of any Net Equity Proceeds (x) used for any such repurchase, retirement or other acquisition or retirement will not increase the amount available for making a Restricted Payments under Payment pursuant to clause (iii2) of this Section 4.07(b) or (y) taken into account for purposes of incurring Indebtedness pursuant to clause (14) of the immediately preceding paragraph and to the extent such proceeds have not otherwise been applied to the payment definition of Restricted Payments“Permitted Debt” set forth in Section 4.09(b) plus (2) the cash proceeds of key man life insurance policies received by the Company and its Restricted Subsidiaries after the Issue Datehereof; (x11) on and after the purchase or redemption of any Acquired Subordinated Indebtedness of the Company or any of its Restricted Subsidiaries, by application of “Closing Date” (i) cash provided from operations as defined in the ordinary course of business or (ii) proceeds from borrowings under Business Combination Agreement), Restricted Payments in connection with the revolving portion of any Credit Facility (so long “Cash Payment”, as within 30 days prior to such purchase or redemption, a corresponding amount of borrowings under the revolving portion of such Credit Facility was repaid from cash provided from operations defined in the ordinary course of business); providedBusiness Combination Agreement, in any such case, that the Company is able to incur an additional $1.00 of Indebtedness pursuant to Section 5.5(a) hereof after giving effect to such purchase or redemption; provided, further, that this clause (x) shall not permit the application of any proceeds from any other borrowings under any Credit Facility to effect any such purchase or redemption; and (xi) so long as no Default has occurred and is continuing or would be caused thereby, other Restricted Payments in an aggregate amount not to exceed $5.0 million 1.5 billion; and (12) other Restricted Payments in an aggregate amount since the Issue DateDate not to exceed $75.0 million. The amount of all Restricted Payments (other than cash) shall will be the Fair Market Value on the date of such the Restricted Payment of the asset(s) or securities proposed to be paid, transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to such the Restricted Payment. The Fair Market Value determination of any cash Restricted Payment shall be its face amount, and the Fair Market Value of any non-cash Restricted Payment exceeding $5.0 million shall assets or securities that are required to be determined conclusively valued by two senior officers of this Section 4.07 will be delivered in writing to the Company acting in good faith whose conclusions with respect thereto shall be set forth Trustee in an Officers’ Certificate delivered to the Holders; provided, however, that if the Fair Market Value of any non-cash Restricted Payment such assets or securities exceeds $10.0 million50.0 million (excluding Restricted Payments permitted by clauses (2), such Fair Market Value shall be determined conclusively by the Board (3), (6) and (9) of Directors of the Company and set forth in a board resolution, and a certified copy of such board resolution shall be delivered to the Holders. For purposes of determining compliance with this Section 5.5, in the event that a Restricted Payment meets the criteria of more than one of the exceptions described in (i) through (xi) above or is entitled to be made pursuant to Section 5.5(a4.07(b) hereof, the Company shall, in its sole discretion, classify such Restricted Payment, or later classify, reclassify or re-divide all or a portion of such Restricted Payment, in any manner that complies with this Section 5.5).

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 in connection with any merger or consolidation involving the Company or any of its Restricted Subsidiaries) 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 and other than dividends or distributions payable to the Company or a Restricted Subsidiary of the Company); (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 any direct or indirect parent of the CompanyCompany (other than any such Equity Interests owned by the Company or any of its Restricted Subsidiaries); (iii3) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Subordinated IndebtednessIndebtedness that is subordinated to the Notes, except a payment of interest or principal at the Stated Maturity thereofMaturity; or (iv4) make any Restricted Investment Investment, (all such payments and other actions set forth in these clauses (i1) through (iv4) above being collectively referred to as “"Restricted Payments”"), unless, at the time of and after giving effect to such Restricted Payment: (i1) no Default or Event of Default has occurred and is continuing or would occur as a consequence of such the Restricted Payment;; and (ii2) the Company would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, would have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Debt to Adjusted Consolidated Cash Flow Ratio test set forth in the first paragraph of Section 5.7 4.09 hereof; provided that the Company and its Restricted Subsidiaries shall not be required to comply with this clause (2) in order to make any Restricted Investment; and (iii3) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries since after the Issue Date date hereof (excluding Restricted Payments permitted by clauses (ii2), (iii), (iv), (v), (vi), (vii), (viii3) and (xi4) of the paragraph (b) of this Section 5.5exceptions below), is less than the sum, without duplication, of: (1a) 50100% of the Consolidated Net Income Cash Flow of the Company for the period (taken as one accounting period) from the beginning of the fiscal quarter during which the Issue Date occurs this Indenture is executed to the end of the Company’s 's most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such the Consolidated Net Income Cash Flow for such period is a deficit, less 100% of such the deficit), less 1.75 times the Consolidated Interest Expense of the Company since the beginning of the fiscal quarter during which this Indenture is executed; plus (2b) 100% of (A)(i) the aggregate net cash proceeds and (ii) the Fair Market Value of (x) marketable securities (other than marketable securities of the Company), (y) Capital Stock of a Person (other than the Company or an Affiliate of the Company) engaged in a Permitted Business and (z) other assets used in any Permitted Business, in the case of clauses (i) and (ii), received by the Company since the Issue Date beginning of the fiscal quarter during which this Indenture is executed as a contribution to its common equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified StockStock and except to the extent such net cash proceeds are used to incur new Indebtedness outstanding pursuant to clause (11) of the second paragraph of Section 4.09 hereof) or from the issue or sale of convertible or exchangeable Disqualified Stock or convertible or exchangeable debt securities of the Company that have been converted into or exchanged for such Equity Interests (other than Equity Interests (or Disqualified Stock or convertible debt securities) sold to a Subsidiary of the CompanyCompany and other than Disqualified Stock or convertible debt securities that have been converted into Disqualified Stock); plus (c) to the extent that any Restricted Investment that was made after the date hereof is sold for cash or otherwise liquidated or repaid for cash, the lesser of: (A) the cash return of capital with respect to the Restricted Investment (less the cost of disposition, if any), and (B) the initial amount by which Indebtedness of the Company or any Restricted Subsidiary is reduced on the Company’s consolidated balance sheet upon the conversion or exchange after the Issue Date of any such Indebtedness into or for Equity Interests (other than Disqualified Stock) of the Company, and (C) the aggregate net cash proceeds, if any, received by the Company or any of its Restricted Subsidiaries upon any conversion or exchange described in clause (1) or (2) aboveInvestment; plus (3d) with respect to Restricted Investments made by the extent that any Unrestricted Subsidiary of the Company and all of its Subsidiaries are designated as Restricted Subsidiaries after the Issue Datedate hereof, an amount equal to the sum of lesser of: (A) the net reduction in such Restricted Investments in any Person resulting from (i) repayments of loans or advances, or other transfers of assets, in each case to the Company or any Restricted Subsidiary, (ii) other repurchases, repayments or redemptions of such Restricted Investments, (iii) the sale of any such Restricted Investment or (iv) the release of any Guarantee (except to the extent any amounts are paid under such Guarantee) plus (B) all amounts representing the return of capital (excluding dividends and distributions) to the Company or any Restricted Subsidiary in respect of such Restricted Investment plus (C) with respect to any Unrestricted Subsidiary that the Board of Directors of the Company redesignates as a Restricted Subsidiary, the Fair Market Value of the Investment in such Subsidiary held by the Company or any of its Restricted Subsidiaries at the time of such redesignation. (b) The provisions of Section 5.5(a) hereof will not prohibit: (i) the payment of any dividend or the consummation of any irrevocable redemption within 60 days after the date of declaration of the dividend or giving of the redemption notice, as the case may be, if at the date of declaration or notice, the dividend or redemption payment would have complied with the provisions of this Agreement and the Notes; (ii) the making of any Restricted Payment in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Subsidiary fair market value of the Company) of, Equity Interests 's Investments in such Subsidiaries as of the Company (other than Disqualified Stock) or from the substantially concurrent contribution (other than by a Subsidiary of the Company) of capital to the Company in respect of its Equity Interests (other than Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such Restricted Payment will be excluded from clause (iii)(2) of Section 5.5(a) hereof; (iii) the repurchase, redemption, defeasance or other acquisition or retirement for value of Subordinated Indebtedness (including the payment of any required premium and any fees and expenses incurred in connection with such repurchase, redemption, defeasance or other acquisition) with the net cash proceeds from a substantially concurrent incurrence of Permitted Refinancing Indebtedness; provided that the amount of any such net cash proceeds that are utilized for any such Restricted Payment will be excluded from clause (iii)(2) of Section 5.5(a) hereof; (iv) the payment of any dividend (or, in the case of any partnership or limited liability company, any similar distribution) by a Restricted Subsidiary of the Company to the holders of the Equity Interests (other than Disqualified Stock) of such Restricted Subsidiary; provided that such dividend or similar distribution is paid to all holders of such Equity Interests on a pro rata basis based on their respective holdings of such Equity Interests; (v) the payment of any dividend on the EB-5 Preferred Stock; (vi) the repurchase, redemption or other acquisition or retirement of Equity Interests deemed to occur upon the exercise or exchange of stock options, warrants or other similar rights to the extent such Equity Interests represent a portion of the exercise or exchange price of those stock options, and the repurchase, redemption or other acquisition or retirement of Equity Interests made in lieu of withholding taxes resulting from the exercise or exchange of stock options, warrants or other similar rights; (vii) so long as no Default has occurred and is continuing or would be caused thereby, the declaration and payment of regularly scheduled or accrued dividends to holders of any class or series of Disqualified Stock of the Company or any Restricted Subsidiary of the Company or any class or series of preferred stock of a Restricted Subsidiary of the Company, in each case issued on or after the Issue Date in accordance with the Fixed Charge Coverage Ratio test described in Section 5.7 hereof; (viii) payments to fund the purchase by the Company of fractional shares arising out of stock dividends, splits or combination or business combinations; (ix) the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company held by any of the Company’s (or any of its Restricted Subsidiaries’) current or former directors or employees; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may not exceed the Fair Market Value thereof and furthermore may not exceed, in any twelve-month period since the Issue Date, $0.5 million (with unused amounts (with respect to the $0.5 million limit referred to above) in any 12-month period after such date being permitted to be carried over into succeeding 12-month periods); provided, further, that the amounts in any such 12-month period may be increased by an amount not to exceed (1) the cash proceeds received by the Company or any of its Restricted Subsidiaries from the sale of the Company’s Equity Interests (other than Disqualified Stock) to any such directors or employees that occurs after the Issue Date (provided that the amount of such cash proceeds utilized for any such repurchase, retirement or other acquisition or retirement will not increase the amount available for Restricted Payments under clause (iii) of the immediately preceding paragraph and to the extent such proceeds have not otherwise been applied to the payment of Restricted Payments) plus (2) the cash proceeds of key man life insurance policies received by the Company and its Restricted Subsidiaries after the Issue Date; (x) the purchase or redemption of any Acquired Subordinated Indebtedness of the Company or any of its Restricted Subsidiaries, by application of (i) cash provided from operations in the ordinary course of business or (ii) proceeds from borrowings under the revolving portion of any Credit Facility (so long as within 30 days prior to such purchase or redemption, a corresponding amount of borrowings under the revolving portion of such Credit Facility was repaid from cash provided from operations in the ordinary course of business); provided, in any such case, that the Company is able to incur an additional $1.00 of Indebtedness pursuant to Section 5.5(a) hereof after giving effect to such purchase or redemption; provided, further, that this clause (x) shall not permit the application of any proceeds from any other borrowings under any Credit Facility to effect any such purchase or redemption; and (xi) so long as no Default has occurred and is continuing or would be caused thereby, other Restricted Payments in an aggregate amount not to exceed $5.0 million since the Issue Date. The amount of all Restricted Payments (other than cash) shall be the Fair Market Value on the date of such Restricted Payment of designation; or (B) the asset(s) or securities proposed to be paid, transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to such Restricted Payment. The Fair Market Value of any cash Restricted Payment shall be its face amount, and the Fair Market Value of any non-cash Restricted Payment exceeding $5.0 million shall be determined conclusively by two senior officers of the Company acting in good faith whose conclusions with respect thereto shall be set forth in an Officers’ Certificate delivered to the Holders; provided, however, that if the Fair Market Value of any non-cash Restricted Payment exceeds $10.0 million, such Fair Market Value shall be determined conclusively by the Board of Directors of the Company and set forth in a board resolution, and a certified copy of such board resolution shall be delivered to the Holders. For purposes of determining compliance with this Section 5.5, in the event that a Restricted Payment meets the criteria of more than one of the exceptions described in (i) through (xi) above or is entitled to be made pursuant to Section 5.5(a) hereof, the Company shall, in its sole discretion, classify such Restricted Payment, or later classify, reclassify or re-divide all or a portion of such Restricted Payment, in any manner that complies with this Section 5.5.sum of:

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 in connection with any merger or consolidation involving the Company or any of its Restricted Subsidiaries) 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 and other than dividends or distributions payable to the Company or a Restricted Subsidiary of the Company); (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 any direct or indirect parent of the CompanyCompany (other than any such Equity Interests owned by the Company or any of its Restricted Subsidiaries); (iii3) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Subordinated IndebtednessIndebtedness that is subordinated to the Notes, except a payment of interest or principal at the Stated Maturity thereofMaturity; or (iv4) make any Restricted Investment Investment, (all such payments and other actions set forth in these clauses (i1) through (iv4) above above, including those occuring since the date of the Senior Discount Note Indenture, being collectively referred to as “"Restricted Payments”"), unless, at the time of and after giving effect to such Restricted Payment: (i1) no Default or Event of Default has occurred and is continuing or would occur as a consequence of such the Restricted Payment;; and (ii2) the Company would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, would have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Debt to Adjusted Consolidated Cash Flow Ratio test set forth in the first paragraph of Section 5.7 4.09 hereof; provided that the Company and its Restricted Subsidiaries shall not be required to comply with this clause (2) in order to make any Restricted Investment; and (iii3) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries since after the Issue Date date of the Senior Discount Note Indenture (excluding Restricted Payments permitted by clauses (ii2), (iii), (iv), (v), (vi), (vii), (viii3) and (xi4) of the paragraph (b) of this Section 5.5exceptions below), is less than the sum, without duplication, of: (1a) 50100% of the Consolidated Net Income Cash Flow of the Company for the period (taken as one accounting period) from the beginning of the fiscal quarter during which the Issue Date occurs Senior Discount Note Indenture was executed to the end of the Company’s 's most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such the Consolidated Net Income Cash Flow for such period is a deficit, less 100% of such the deficit), less 1.75 times the Consolidated Interest Expense of the Company since the beginning of the fiscal quarter during which the Senior Discount Note Indenture was executed; plus (2b) 100% of (A)(i) the aggregate net cash proceeds and (ii) the Fair Market Value of (x) marketable securities (other than marketable securities of the Company), (y) Capital Stock of a Person (other than the Company or an Affiliate of the Company) engaged in a Permitted Business and (z) other assets used in any Permitted Business, in the case of clauses (i) and (ii), received by the Company since the Issue Date beginning of the fiscal quarter during which the Senior Discount Note Indenture was executed as a contribution to its common equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified StockStock and except to the extent such net cash proceeds are used to incur new Indebtedness outstanding pursuant to clause (11) of the second paragraph of Section 4.09 hereof) or from the issue or sale of convertible or exchangeable Disqualified Stock or convertible or exchangeable debt securities of the Company that have been converted into or exchanged for such Equity Interests (other than Equity Interests (or Disqualified Stock or convertible debt securities) sold to a Subsidiary of the Company), (B) the amount by which Indebtedness of the Company or any Restricted Subsidiary is reduced on the Company’s consolidated balance sheet upon the conversion or exchange after the Issue Date of any such Indebtedness into or for Equity Interests (and other than Disqualified Stock or convertible debt securities that have been converted into Disqualified Stock) of the Company, and (C) the aggregate net cash proceeds, if any, received by the Company or any of its Restricted Subsidiaries upon any conversion or exchange described in clause (1) or (2) above); plus (3c) with respect to Restricted Investments made by the Company and its Restricted Subsidiaries after the Issue Date, an amount equal to the sum of (A) the net reduction in such Restricted Investments in any Person resulting from (i) repayments of loans or advances, or other transfers of assets, in each case to the Company or any Restricted Subsidiary, (ii) other repurchases, repayments or redemptions of such Restricted Investments, (iii) the sale of any such Restricted Investment or (iv) the release of any Guarantee (except to the extent any amounts are paid under such Guarantee) plus (B) all amounts representing the return of capital (excluding dividends and distributions) to the Company or that any Restricted Subsidiary in respect of such Restricted Investment plus (C) with respect to any Unrestricted Subsidiary that the Board of Directors of the Company redesignates as a Restricted Subsidiary, the Fair Market Value of the Investment in such Subsidiary held by the Company or any of its Restricted Subsidiaries at the time of such redesignation. (b) The provisions of Section 5.5(a) hereof will not prohibit: (i) the payment of any dividend or the consummation of any irrevocable redemption within 60 days was made after the date of declaration of the dividend Senior Discount Note Indenture is sold for cash or giving of the redemption notice, as the case may be, if at the date of declaration otherwise liquidated or noticerepaid for cash, the dividend or redemption payment would have complied with the provisions of this Agreement and the Notes; (ii) the making of any Restricted Payment in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Subsidiary of the Company) lesser of, Equity Interests of the Company (other than Disqualified Stock) or from the substantially concurrent contribution (other than by a Subsidiary of the Company) of capital to the Company in respect of its Equity Interests (other than Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such Restricted Payment will be excluded from clause (iii)(2) of Section 5.5(a) hereof; (iii) the repurchase, redemption, defeasance or other acquisition or retirement for value of Subordinated Indebtedness (including the payment of any required premium and any fees and expenses incurred in connection with such repurchase, redemption, defeasance or other acquisition) with the net cash proceeds from a substantially concurrent incurrence of Permitted Refinancing Indebtedness; provided that the amount of any such net cash proceeds that are utilized for any such Restricted Payment will be excluded from clause (iii)(2) of Section 5.5(a) hereof; (iv) the payment of any dividend (or, in the case of any partnership or limited liability company, any similar distribution) by a Restricted Subsidiary of the Company to the holders of the Equity Interests (other than Disqualified Stock) of such Restricted Subsidiary; provided that such dividend or similar distribution is paid to all holders of such Equity Interests on a pro rata basis based on their respective holdings of such Equity Interests; (v) the payment of any dividend on the EB-5 Preferred Stock; (vi) the repurchase, redemption or other acquisition or retirement of Equity Interests deemed to occur upon the exercise or exchange of stock options, warrants or other similar rights to the extent such Equity Interests represent a portion of the exercise or exchange price of those stock options, and the repurchase, redemption or other acquisition or retirement of Equity Interests made in lieu of withholding taxes resulting from the exercise or exchange of stock options, warrants or other similar rights; (vii) so long as no Default has occurred and is continuing or would be caused thereby, the declaration and payment of regularly scheduled or accrued dividends to holders of any class or series of Disqualified Stock of the Company or any Restricted Subsidiary of the Company or any class or series of preferred stock of a Restricted Subsidiary of the Company, in each case issued on or after the Issue Date in accordance with the Fixed Charge Coverage Ratio test described in Section 5.7 hereof; (viii) payments to fund the purchase by the Company of fractional shares arising out of stock dividends, splits or combination or business combinations; (ix) the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company held by any of the Company’s (or any of its Restricted Subsidiaries’) current or former directors or employees; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may not exceed the Fair Market Value thereof and furthermore may not exceed, in any twelve-month period since the Issue Date, $0.5 million (with unused amounts (with respect to the $0.5 million limit referred to above) in any 12-month period after such date being permitted to be carried over into succeeding 12-month periods); provided, further, that the amounts in any such 12-month period may be increased by an amount not to exceed (1) the cash proceeds received by the Company or any of its Restricted Subsidiaries from the sale of the Company’s Equity Interests (other than Disqualified Stock) to any such directors or employees that occurs after the Issue Date (provided that the amount of such cash proceeds utilized for any such repurchase, retirement or other acquisition or retirement will not increase the amount available for Restricted Payments under clause (iii) of the immediately preceding paragraph and to the extent such proceeds have not otherwise been applied to the payment of Restricted Payments) plus (2) the cash proceeds of key man life insurance policies received by the Company and its Restricted Subsidiaries after the Issue Date; (x) the purchase or redemption of any Acquired Subordinated Indebtedness of the Company or any of its Restricted Subsidiaries, by application of (i) cash provided from operations in the ordinary course of business or (ii) proceeds from borrowings under the revolving portion of any Credit Facility (so long as within 30 days prior to such purchase or redemption, a corresponding amount of borrowings under the revolving portion of such Credit Facility was repaid from cash provided from operations in the ordinary course of business); provided, in any such case, that the Company is able to incur an additional $1.00 of Indebtedness pursuant to Section 5.5(a) hereof after giving effect to such purchase or redemption; provided, further, that this clause (x) shall not permit the application of any proceeds from any other borrowings under any Credit Facility to effect any such purchase or redemption; and (xi) so long as no Default has occurred and is continuing or would be caused thereby, other Restricted Payments in an aggregate amount not to exceed $5.0 million since the Issue Date. The amount of all Restricted Payments (other than cash) shall be the Fair Market Value on the date of such Restricted Payment of the asset(s) or securities proposed to be paid, transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to such Restricted Payment. The Fair Market Value of any cash Restricted Payment shall be its face amount, and the Fair Market Value of any non-cash Restricted Payment exceeding $5.0 million shall be determined conclusively by two senior officers of the Company acting in good faith whose conclusions with respect thereto shall be set forth in an Officers’ Certificate delivered to the Holders; provided, however, that if the Fair Market Value of any non-cash Restricted Payment exceeds $10.0 million, such Fair Market Value shall be determined conclusively by the Board of Directors of the Company and set forth in a board resolution, and a certified copy of such board resolution shall be delivered to the Holders. For purposes of determining compliance with this Section 5.5, in the event that a Restricted Payment meets the criteria of more than one of the exceptions described in (i) through (xi) above or is entitled to be made pursuant to Section 5.5(a) hereof, the Company shall, in its sole discretion, classify such Restricted Payment, or later classify, reclassify or re-divide all or a portion of such Restricted Payment, in any manner that complies with this Section 5.5.:

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 in connection with any merger or consolidation involving the Company or any of 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 and other than or such Restricted Subsidiary or dividends or distributions payable to the Company or a any Restricted Subsidiary of the CompanySubsidiary); (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 any direct Restricted Subsidiary or indirect parent other Affiliate of the CompanyCompany (other than any such Equity Interests owned by the Company or any Restricted Subsidiary); (iii3) make any payment on or with respect to, or purchase, redeem, defease redeem or otherwise acquire or retire prior to scheduled maturity for value any Subordinated Indebtedness, except a Indebtedness that is subordinated in right of payment of interest or principal at to the Stated Maturity thereofNotes; or (iv4) make any Restricted Investment other than a Permitted Investment (all such payments and other actions set forth in these clauses (i1) through (iv4) above being collectively referred to as “Restricted Payments”"RESTRICTED PAYMENTS"), ; unless, at the time of and after giving effect to such Restricted Payment: (i) no Default or Event of Default has shall have occurred and is be continuing or would occur as a consequence of such Restricted Payment;thereof; and (ii) the Company would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter periodthereto, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 5.7 hereof4.9 of the Indenture; and (iii) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries since after the Issue 1996 Indenture Date (excluding Restricted Payments permitted by clauses (ii), (iii), (iv), (v), (vi), (vii), (viii) and (xi) of paragraph (b) of this Section 5.5), is less than (x) the sum, without duplication, of: (1) 50% cumulative EBITDA of the Company, minus 1.75 times the cumulative Consolidated Net Income Interest Expense of the Company Company, in each case for the period (taken as one accounting period) from the beginning of the fiscal quarter during which the Issue Date occurs June 30, 1996, to the end of the Company’s 's most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment Payment, plus (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit); plus (2) 100% of (A)(iy) the aggregate net cash proceeds and (ii) the Fair Market Value of (x) marketable securities (other than marketable securities of the Company), (y) Capital Stock of a Person (other than the Company or an Affiliate of the Company) engaged in a Permitted Business and (z) other assets used in any Permitted Business, in the case of clauses (i) and (ii), Equity Proceeds received by the Company from the issuance or sale since the Issue 1996 Indenture Date as a contribution to its common equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified Stock) or from the issue or sale of convertible or exchangeable Disqualified Stock or convertible or exchangeable debt securities of the Company that have been converted into or exchanged for such Equity Interests (other than Equity Interests (or convertible debt securities sold to a Restricted Subsidiary of the Company and other than Disqualified Stock or debt securities) sold to a Subsidiary of the Companysecurities that have been converted into Disqualified Stock), (B) the amount by which Indebtedness of the Company or any Restricted Subsidiary is reduced on the Company’s consolidated balance sheet upon the conversion or exchange after the Issue Date of any such Indebtedness into or for Equity Interests (other than Disqualified Stock) of the Company, and (C) the aggregate net cash proceeds, if any, received by the Company or any of its Restricted Subsidiaries upon any conversion or exchange described in clause (1) or (2) above; plus (3) with respect to Restricted Investments made by the Company and its Restricted Subsidiaries after the Issue Date, an amount equal to the sum of (A) the net reduction in such Restricted Investments in any Person resulting from (i) repayments of loans or advances, or other transfers of assets, in each case to the Company or any Restricted Subsidiary, (ii) other repurchases, repayments or redemptions of such Restricted Investments, (iii) the sale of any such Restricted Investment or (iv) the release of any Guarantee (except to the extent any amounts are paid under such Guarantee) plus (Bz) all amounts representing the return of capital (excluding dividends and distributions) to the Company or any Restricted Subsidiary in respect of such Restricted Investment plus (C) with respect to any Unrestricted Subsidiary that the Board of Directors of the Company redesignates as a Restricted Subsidiary, the Fair Market Value of the Investment in such Subsidiary held by the Company or any of its Restricted Subsidiaries at the time of such redesignation. (b) $2.0 million. The foregoing provisions of Section 5.5(a) hereof will not prohibit: (i1) the payment of any dividend or the consummation of any irrevocable redemption within 60 days after the date of declaration of the dividend or giving of the redemption notice, as the case may bethereof, if at the said date of declaration or notice, the dividend or redemption such payment would have complied with the provisions of this Agreement and the NotesIndenture; (ii2) the making of any Restricted Payment in exchange forredemption, or out of the net cash proceeds of the substantially concurrent sale (other than to a Subsidiary of the Company) of, Equity Interests of the Company (other than Disqualified Stock) or from the substantially concurrent contribution (other than by a Subsidiary of the Company) of capital to the Company in respect of its Equity Interests (other than Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such Restricted Payment will be excluded from clause (iii)(2) of Section 5.5(a) hereof; (iii) the repurchase, redemption, defeasance or other acquisition or retirement for value of Subordinated Indebtedness (including the payment of any required premium and any fees and expenses incurred in connection with such repurchase, redemption, defeasance or other acquisition) with the net cash proceeds from a substantially concurrent incurrence of Permitted Refinancing Indebtedness; provided that the amount of any such net cash proceeds that are utilized for any such Restricted Payment will be excluded from clause (iii)(2) of Section 5.5(a) hereof; (iv) the payment of any dividend (or, in the case of any partnership or limited liability company, any similar distribution) by a Restricted Subsidiary of the Company to the holders of the Equity Interests (other than Disqualified Stock) of such Restricted Subsidiary; provided that such dividend or similar distribution is paid to all holders of such Equity Interests on a pro rata basis based on their respective holdings of such Equity Interests; (v) the payment of any dividend on the EB-5 Preferred Stock; (vi) the repurchase, redemption or other acquisition or retirement of Equity Interests deemed to occur upon the exercise or exchange of stock options, warrants or other similar rights to the extent such Equity Interests represent a portion of the exercise or exchange price of those stock options, and the repurchase, redemption or other acquisition or retirement of Equity Interests made in lieu of withholding taxes resulting from the exercise or exchange of stock options, warrants or other similar rights; (vii) so long as no Default has occurred and is continuing or would be caused thereby, the declaration and payment of regularly scheduled or accrued dividends to holders of any class or series of Disqualified Stock of the Company or any Restricted Subsidiary of the Company or any class or series of preferred stock of a Restricted Subsidiary of the Company, in each case issued on or after the Issue Date in accordance with the Fixed Charge Coverage Ratio test described in Section 5.7 hereof; (viii) payments to fund the purchase by the Company of fractional shares arising out of stock dividends, splits or combination or business combinations; (ix) the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company in exchange for, or any with the net cash proceeds of, the substantially concurrent sale (other than to a Restricted Subsidiary of the Company held by any Company) of other Equity Interests of the Company’s (or any of its Restricted Subsidiaries’) current or former directors or employees; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may not exceed the Fair Market Value thereof and furthermore may not exceed, in any twelve-month period since the Issue Date, $0.5 million (with unused amounts (with respect to the $0.5 million limit referred to above) in any 12-month period after such date being permitted to be carried over into succeeding 12-month periods); provided, further, that the amounts in any such 12-month period may be increased by an amount not to exceed (1) the cash proceeds received by the Company or any of its Restricted Subsidiaries from the sale of the Company’s Equity Interests (other than any Disqualified Stock); (3) to any such directors or employees that occurs after the Issue Date (provided that the amount of such cash proceeds utilized for any such defeasance, redemption, repurchase, retirement or other acquisition or retirement will for value of Indebtedness that is subordinated in right of payment to the Notes in exchange for, or with the net cash proceeds of, a substantially concurrent issuance and sale (other than to a Restricted Subsidiary of the Company) of Equity Interests of the Company (other than Disqualified Stock); (4) the defeasance, redemption, repurchase, retirement or other acquisition or retirement for value of Indebtedness that is subordinated in right of payment to the Notes in exchange for, or with the net cash proceeds of, a substantially concurrent issue and sale (other than to the Company or any of its Restricted Subsidiaries) of Refinancing Indebtedness; (5) the repurchase of any Indebtedness subordinated in right of payment to the Notes at a purchase price not increase greater than 101% of the principal amount of such Indebtedness in the event of a Change of Control in accordance with provisions similar to the covenant set forth in Section 4.18 of the Indenture, provided that prior to or contemporaneously with such repurchase the Company has made the Change of Control Offer as provided in such covenant with respect to the Notes and has repurchased all Notes validly tendered for payment in connection with such Change of Control Offer; and (6) additional payments to current or former employees or directors of the Company for repurchases of stock, stock options or other equity interests, provided that the aggregate amount of all such payments under this clause (6) does not exceed $0.5 million in any year and $2.0 million in the aggregate. The Restricted Payments described in clauses (2), (3), (5) and (6) of the immediately preceding paragraph shall be Restricted Payments that shall be permitted to be taken in accordance with such paragraph but shall reduce the amount that would otherwise be available for Restricted Payments under clause (iii) of the first paragraph of this Section, and the Restricted Payments described in clauses (1) and (4) of the immediately preceding paragraph shall be Restricted Payments that shall be permitted to be taken in accordance with such paragraph and shall not reduce the amount that would otherwise be available for Restricted Payments under clause (iii) of the first paragraph of this Section. If an Investment results in the making of a Restricted Payment, the aggregate amount of all Restricted Payments deemed to have been made as calculated under the foregoing provision shall be reduced by the amount of any net reduction in such Investment (resulting from the payment of interest or dividends, loan repayment, transfer of assets or otherwise) to the extent such proceeds have net reduction is not otherwise been applied to included in the payment Company's EBITDA; PROVIDED, HOWEVER, that the total amount by which the aggregate amount of all Restricted Payments) plus Payments may be reduced may not exceed the lesser of (2a) the cash proceeds of key man life insurance policies received by the Company and its Restricted Subsidiaries after the Issue Date; in connection with such net reduction and (xb) the purchase or redemption of any Acquired Subordinated Indebtedness of the Company or any of its Restricted Subsidiaries, by application of (i) cash provided from operations in the ordinary course of business or (ii) proceeds from borrowings under the revolving portion of any Credit Facility (so long as within 30 days prior to such purchase or redemption, a corresponding initial amount of borrowings under such Investment. If the revolving portion of such Credit Facility was repaid from cash provided from operations in the ordinary course of business); provided, in any such case, that the Company is able to incur an additional $1.00 of Indebtedness pursuant to Section 5.5(a) hereof after giving effect to such purchase or redemption; provided, further, that this clause (x) shall not permit the application of any proceeds from any other borrowings under any Credit Facility to effect any such purchase or redemption; and (xi) so long as no Default has occurred and is continuing or would be caused thereby, other Restricted Payments in an aggregate amount not to exceed $5.0 million since the Issue Date. The amount of all Restricted Payments (calculated under the foregoing provision includes an Investment in an Unrestricted Subsidiary or other than cash) shall be the Fair Market Value on the date of such Restricted Payment of the asset(s) or securities proposed to be paid, transferred or issued by the Company or such Person that thereafter becomes a Restricted Subsidiary, such Investment will no longer be counted as a Restricted Payment for purposes of calculating the case may be, pursuant to aggregate amount of Restricted Payments. For the purpose of making any calculations under the Indenture: (1) an Investment shall include the fair market value of the net assets of any Restricted Subsidiary at the time that such Restricted Payment. The Fair Market Value Subsidiary is designated an Unrestricted Subsidiary and shall exclude the fair market value of the net assets of any cash Unrestricted Subsidiary that is designated as a Restricted Payment Subsidiary; (2) any property transferred to or from an Unrestricted Subsidiary shall be its face amountvalued at fair market value at the time of such transfer, and provided that, in each case, the Fair Market Value fair market value of any non-cash Restricted Payment exceeding $5.0 million shall be an asset or property is as determined conclusively by two senior officers of the Company acting in good faith whose conclusions with respect thereto shall be set forth in an Officers’ Certificate delivered to the Holders; provided, however, that if the Fair Market Value of any non-cash Restricted Payment exceeds $10.0 million, such Fair Market Value shall be determined conclusively by the Board of Directors in good faith; and (3) subject to the foregoing, the amount of any Restricted Payment, if other than cash, shall be determined by the Board of Directors, whose good faith determination shall be conclusive. The Board of Directors may designate a Restricted Subsidiary to be an Unrestricted Subsidiary in compliance with the Section 4.15 of the Indenture. Upon such designation, all outstanding Investments by the Company and set forth its Restricted Subsidiaries (except to the extent repaid in a board resolution, and a certified copy cash) in the Subsidiary so designated will be deemed to be Restricted Payments made at the time of such board resolution shall designation and will reduce the amount available for Restricted Payments under the first paragraph of this covenant. Such designation will only be delivered to the Holders. For purposes of determining compliance with this Section 5.5, in the event that a permitted if such Restricted Payment would be permitted at such time and if such Restricted Subsidiary otherwise meets the criteria definition of more than one of the exceptions described in an Unrestricted Subsidiary. (ib) through (xi) above or is entitled to be made pursuant to Section 5.5(a) hereof, the Company shall, in its sole discretion, classify such Restricted Payment, or later classify, reclassify or re-divide all or a portion of such Restricted Payment, in any manner that complies with this Section 5.5INCURRENCE OF INDEBTEDNESS AND ISSUANCE OF PREFERRED STOCK.

Restricted Payments. (a) 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 any of 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 (i) dividends or distributions payable in Equity Interests (other than Disqualified Stock) Qualified Capital Stock of the Company and (ii) in the case of Restricted Subsidiaries, dividends or distributions to the Company or any other than Restricted Subsidiary and pro rata dividends or distributions payable to the Company or a Restricted Subsidiary other holders of the Company)same class of Capital Stock of such Restricted Subsidiary) on or in respect of shares of its Capital Stock to holders of such Capital Stock; (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 any direct warrants, rights or indirect parent options to purchase or acquire shares of the Companyany class of such Capital Stock; (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 Subordinated scheduled final maturity, scheduled repayment or scheduled sinking fund payment, any Indebtedness of the Company or the Guarantors that is subordinate or junior in right of payment (but, for the avoidance of doubt, not any such Indebtedness that is subordinate or junior solely because of any Liens arising or created in respect of such Indebtedness, except a payment of interest ) to the Securities or principal at the Stated Maturity thereofGuarantees; (d) make any Investment (other than Permitted Investments); or (ive) make any payments on account of the Intercompany Agreements in respect of Restricted Investment Corporate Services Fees, (all such payments and other each of the foregoing actions set forth in these clauses (ia), (b), (c), (d) through and (ive) above being collectively referred to as a “Restricted PaymentsPayment”), unless, at the time of and after giving effect to such Restricted Payment: (i) no Default or Event of Default has occurred and is continuing or would occur as a consequence of such Restricted Payment; (ii) the Company would, if at the time of such Restricted Payment and or immediately after giving pro forma effect thereto as if such Restricted Payment had been made at thereto: (1) a Default or an Event of Default shall have occurred and be continuing; (2) the beginning of the applicable four-quarter period, have been permitted Company is not able to incur at least $£1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Consolidated Leverage Ratio test set forth in Section 5.7 hereof4.10(a); andor (iii3) such Restricted Payment, together with the aggregate amount of all other Restricted Payments (including such proposed Restricted Payment) made by the Company and its Restricted Subsidiaries since after the Issue Date (excluding Restricted Payments permitted by clauses (ii), (iii), (iv), (v), (vi), (vii), (viii) and (xi) of paragraph (b) of this Section 5.5), is less than the sum, without duplication, of: (1) 50% of the Consolidated Net Income of the Company amount expended for the period (taken as one accounting period) from the beginning of the fiscal quarter during which the Issue Date occurs to the end of the Company’s most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (orpurpose, if such Consolidated Net Income for such period is a deficitother than in cash, less 100% of such deficit); plus (2) 100% of (A)(i) the aggregate net cash proceeds and (ii) being the Fair Market Value of (x) marketable securities (other than marketable securities of the Company), (y) Capital Stock of a Person (other than the Company or an Affiliate of the Company) engaged in a Permitted Business such property as determined reasonably and (z) other assets used in any Permitted Business, in the case of clauses (i) and (ii), received by the Company since the Issue Date as a contribution to its common equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified Stock) or from the issue or sale of convertible or exchangeable Disqualified Stock or convertible or exchangeable debt securities of the Company that have been converted into or exchanged for such Equity Interests (other than Equity Interests (or Disqualified Stock or debt securities) sold to a Subsidiary of the Company), (B) the amount by which Indebtedness of the Company or any Restricted Subsidiary is reduced on the Company’s consolidated balance sheet upon the conversion or exchange after the Issue Date of any such Indebtedness into or for Equity Interests (other than Disqualified Stock) of the Company, and (C) the aggregate net cash proceeds, if any, received by the Company or any of its Restricted Subsidiaries upon any conversion or exchange described in clause (1) or (2) above; plus (3) with respect to Restricted Investments made by the Company and its Restricted Subsidiaries after the Issue Date, an amount equal to the sum of (A) the net reduction in such Restricted Investments in any Person resulting from (i) repayments of loans or advances, or other transfers of assets, in each case to the Company or any Restricted Subsidiary, (ii) other repurchases, repayments or redemptions of such Restricted Investments, (iii) the sale of any such Restricted Investment or (iv) the release of any Guarantee (except to the extent any amounts are paid under such Guarantee) plus (B) all amounts representing the return of capital (excluding dividends and distributions) to the Company or any Restricted Subsidiary in respect of such Restricted Investment plus (C) with respect to any Unrestricted Subsidiary that the Board of Directors of the Company redesignates as a Restricted Subsidiary, the Fair Market Value of the Investment in such Subsidiary held by the Company or any of its Restricted Subsidiaries at the time of such redesignation. (b) The provisions of Section 5.5(a) hereof will not prohibit: (i) the payment of any dividend or the consummation of any irrevocable redemption within 60 days after the date of declaration of the dividend or giving of the redemption notice, as the case may be, if at the date of declaration or notice, the dividend or redemption payment would have complied with the provisions of this Agreement and the Notes; (ii) the making of any Restricted Payment in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Subsidiary of the Company) of, Equity Interests of the Company (other than Disqualified Stock) or from the substantially concurrent contribution (other than by a Subsidiary of the Company) of capital to the Company in respect of its Equity Interests (other than Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such Restricted Payment will be excluded from clause (iii)(2) of Section 5.5(a) hereof; (iii) the repurchase, redemption, defeasance or other acquisition or retirement for value of Subordinated Indebtedness (including the payment of any required premium and any fees and expenses incurred in connection with such repurchase, redemption, defeasance or other acquisition) with the net cash proceeds from a substantially concurrent incurrence of Permitted Refinancing Indebtedness; provided that the amount of any such net cash proceeds that are utilized for any such Restricted Payment will be excluded from clause (iii)(2) of Section 5.5(a) hereof; (iv) the payment of any dividend (or, in the case of any partnership or limited liability company, any similar distribution) by a Restricted Subsidiary of the Company to the holders of the Equity Interests (other than Disqualified Stock) of such Restricted Subsidiary; provided that such dividend or similar distribution is paid to all holders of such Equity Interests on a pro rata basis based on their respective holdings of such Equity Interests; (v) the payment of any dividend on the EB-5 Preferred Stock; (vi) the repurchase, redemption or other acquisition or retirement of Equity Interests deemed to occur upon the exercise or exchange of stock options, warrants or other similar rights to the extent such Equity Interests represent a portion of the exercise or exchange price of those stock options, and the repurchase, redemption or other acquisition or retirement of Equity Interests made in lieu of withholding taxes resulting from the exercise or exchange of stock options, warrants or other similar rights; (vii) so long as no Default has occurred and is continuing or would be caused thereby, the declaration and payment of regularly scheduled or accrued dividends to holders of any class or series of Disqualified Stock of the Company or any Restricted Subsidiary of the Company or any class or series of preferred stock of a Restricted Subsidiary of the Company, in each case issued on or after the Issue Date in accordance with the Fixed Charge Coverage Ratio test described in Section 5.7 hereof; (viii) payments to fund the purchase by the Company of fractional shares arising out of stock dividends, splits or combination or business combinations; (ix) the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company held by any of the Company’s (or any of its Restricted Subsidiaries’) current or former directors or employees; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may not exceed the Fair Market Value thereof and furthermore may not exceed, in any twelve-month period since the Issue Date, $0.5 million (with unused amounts (with respect to the $0.5 million limit referred to above) in any 12-month period after such date being permitted to be carried over into succeeding 12-month periods); provided, further, that the amounts in any such 12-month period may be increased by an amount not to exceed (1) the cash proceeds received by the Company or any of its Restricted Subsidiaries from the sale of the Company’s Equity Interests (other than Disqualified Stock) to any such directors or employees that occurs after the Issue Date (provided that the amount of such cash proceeds utilized for any such repurchase, retirement or other acquisition or retirement will not increase the amount available for Restricted Payments under clause (iii) of the immediately preceding paragraph and to the extent such proceeds have not otherwise been applied to the payment of Restricted Payments) plus (2) the cash proceeds of key man life insurance policies received by the Company and its Restricted Subsidiaries after the Issue Date; (x) the purchase or redemption of any Acquired Subordinated Indebtedness of the Company or any of its Restricted Subsidiaries, by application of (i) cash provided from operations in the ordinary course of business or (ii) proceeds from borrowings under the revolving portion of any Credit Facility (so long as within 30 days prior to such purchase or redemption, a corresponding amount of borrowings under the revolving portion of such Credit Facility was repaid from cash provided from operations in the ordinary course of business); provided, in any such case, that the Company is able to incur an additional $1.00 of Indebtedness pursuant to Section 5.5(a) hereof after giving effect to such purchase or redemption; provided, further, that this clause (x) shall not permit the application of any proceeds from any other borrowings under any Credit Facility to effect any such purchase or redemption; and (xi) so long as no Default has occurred and is continuing or would be caused thereby, other Restricted Payments in an aggregate amount not to exceed $5.0 million since the Issue Date. The amount of all Restricted Payments (other than cash) shall be the Fair Market Value on the date of such Restricted Payment of the asset(s) or securities proposed to be paid, transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to such Restricted Payment. The Fair Market Value of any cash Restricted Payment shall be its face amount, and the Fair Market Value of any non-cash Restricted Payment exceeding $5.0 million shall be determined conclusively by two senior officers of the Company acting in good faith whose conclusions with respect thereto shall be set forth in an Officers’ Certificate delivered to the Holders; provided, however, that if the Fair Market Value of any non-cash Restricted Payment exceeds $10.0 million, such Fair Market Value shall be determined conclusively by the Board of Directors of the Company and set forth in a board resolution, and a certified copy of such board resolution Company) shall be delivered to exceed the Holders. For purposes of determining compliance with this Section 5.5, in the event that a Restricted Payment meets the criteria of more than one of the exceptions described in (i) through (xi) above or is entitled to be made pursuant to Section 5.5(a) hereof, the Company shall, in its sole discretion, classify such Restricted Payment, or later classify, reclassify or re-divide all or a portion of such Restricted Payment, in any manner that complies with this Section 5.5.sum of:

Restricted Payments. (a) The Company will Issuer 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 CompanyIssuer’s or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company Issuer or any of its Restricted Subsidiaries) or to the direct or indirect holders of the CompanyIssuer’s or any of its Restricted Subsidiaries’ Equity Interests in their capacity as such (other than dividends (A) dividends, distributions or distributions payments payable in Qualifying Equity Interests (other than Disqualified Stock) or, in the case of preferred stock of the Company Issuer, an increase in the liquidation value thereof and other than dividends (B) dividends, distributions or distributions payments payable to the Company Issuer or a Restricted Subsidiary of the CompanyIssuer); (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 any direct or indirect parent of the CompanyIssuer; (iii3) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value (collectively for purposes of this clause (3), a “purchase”) any Subordinated IndebtednessIndebtedness of the Issuer or the Guarantor that is contractually subordinated to the Notes or the Note Guarantee (excluding any intercompany Indebtedness between or among the Issuer and any of its Restricted Subsidiaries), except a any scheduled payment of interest or principal at and any purchase within two years of the Stated Scheduled Maturity thereof; or (iv4) make any Restricted Investment (all such payments and other actions set forth in these clauses (i1) through (iv4) above being collectively referred to as “Restricted Payments”), unless, at the time of and after giving effect to such Restricted Payment: (i) no Default or Event of Default has occurred and is continuing or would occur as a consequence of such Restricted Paymentcontinuing; (ii) the Company Issuer would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 5.7 4.3(a) hereof; and (iii) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company Issuer and its Restricted Subsidiaries since the Issue Closing Date (excluding Restricted Payments permitted by clauses (ii), 2) through (iii), (iv), (v), (vi), (vii), (viii) and (xi20) of paragraph (bSection 4.2(b) of this Section 5.5), hereof) is less than the sum, without duplication, of: (1A) 50% of the Consolidated Net Income of the Company Issuer for the period (taken as one accounting period) from the beginning of the fiscal quarter during which the Issue Date occurs July 1, 2011, to the end of the CompanyIssuer’s most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit); plus (2B) 100% of (A)(i) the aggregate net cash proceeds and (ii) the Fair Market Value of (x) marketable securities (other than marketable securities of the Company), (y) Capital Stock of a Person (other than the Company or an Affiliate of the Company) engaged in a Permitted Business and (z) other assets used in any Permitted Business, in the case of clauses (i) and (ii), non-cash consideration received by the Company Issuer since the Issue Date May 7, 2013 as a contribution to its common equity capital or from the issue or sale of Qualifying Equity Interests of the Company (other than Disqualified StockQualifying Equity Interests sold to a Subsidiary of the Issuer and excluding Excluded Contributions); plus (C) 100% of the aggregate net cash proceeds and the Fair Market Value of non-cash consideration received by the Issuer or a Restricted Subsidiary of the Issuer from the issue or sale of convertible or exchangeable Disqualified Stock of the Issuer or a Restricted Subsidiary of the Issuer or convertible or exchangeable debt securities of the Company Issuer or a Restricted Subsidiary of the Issuer (regardless of when issued or sold) or in connection with the conversion or exchange thereof, in each case that have been converted into or exchanged since May 7, 2013 for such Qualifying Equity Interests (other than Qualifying Equity Interests (and convertible or exchangeable Disqualified Stock or debt securities) securities sold to a Subsidiary of the CompanyIssuer), (B) the amount by which Indebtedness of the Company or any Restricted Subsidiary is reduced on the Company’s consolidated balance sheet upon the conversion or exchange after the Issue Date of any such Indebtedness into or for Equity Interests (other than Disqualified Stock) of the Company, and (C) the aggregate net cash proceeds, if any, received by the Company or any of its Restricted Subsidiaries upon any conversion or exchange described in clause (1) or (2) above; plus (3D) with respect to Restricted Investments made by the Company and its Restricted Subsidiaries after the Issue Date, an amount equal to the sum extent that any Restricted Investment that was made after May 7, 2013 (other than in reliance on clause (16) of (ASection 4.2(b) the net reduction in such Restricted Investments in any Person resulting from hereof) is (i) repayments of loans sold for cash or advancesotherwise cancelled, liquidated or other transfers of assets, in each case to the Company repaid for cash or any Restricted Subsidiary, (ii) other repurchases, repayments or redemptions of such Restricted Investments, (iii) the sale of any such Restricted Investment or (iv) the release of any Guarantee (except to the extent any amounts are paid under such Guarantee) plus (B) all amounts representing the return of capital (excluding dividends and distributions) to the Company or any made in an entity that subsequently becomes a Restricted Subsidiary in respect of the Issuer, the initial amount of such Restricted Investment plus (Cor, if less, the amount of cash received upon repayment or sale); plus (E) with respect to the extent that any Unrestricted Subsidiary that the Board of Directors of the Company redesignates Issuer designated as such after the Closing Date is redesignated as a Restricted SubsidiarySubsidiary after the Closing Date, the lesser of (i) the Fair Market Value of the Issuer’s Restricted Investment in such Subsidiary held (made other than in reliance on clause (16) of Section 4.2(b) hereof) as of the date of such redesignation or (ii) such Fair Market Value as of the date on which such Subsidiary was originally designated as an Unrestricted Subsidiary after the Closing Date; plus (F) 100% of any dividends received in cash by the Company Issuer or any a Restricted Subsidiary of its Restricted Subsidiaries at the time Issuer after May 7, 2013 from an Unrestricted Subsidiary of the Issuer, to the extent that such redesignationdividends were not otherwise included in the Consolidated Net Income of the Issuer for such period. (b) The provisions of Section 5.5(a4.2(a) hereof will not prohibit: (i1) the payment of any dividend or distribution or the consummation of any irrevocable redemption within 60 days after the date of declaration of the dividend or distribution or giving of the redemption notice, as the case may be, if at the date of declaration or notice, the dividend or redemption payment would have complied with the provisions of this Agreement and the NotesIndenture; (ii2) the making of any Restricted Payment in exchange for, or out of or with the net cash proceeds of the substantially concurrent sale (other than to a Subsidiary of the CompanyIssuer) of, Qualifying Equity Interests of the Company (other than Disqualified Stock) or from the substantially concurrent contribution (other than by a Subsidiary of the Company) of common equity capital to the Company in respect of its Equity Interests (other than Disqualified Stock)Issuer; provided that the amount of any such net cash proceeds that are utilized for any such Restricted Payment will not be excluded from clause (iii)(2) considered to be net proceeds of Qualifying Equity Interests for purposes of Section 5.5(a4.2(a)(iii)(B) hereofhereof and will not be considered to be Excluded Contributions; (iii) the repurchase, redemption, defeasance or other acquisition or retirement for value of Subordinated Indebtedness (including the payment of any required premium and any fees and expenses incurred in connection with such repurchase, redemption, defeasance or other acquisition) with the net cash proceeds from a substantially concurrent incurrence of Permitted Refinancing Indebtedness; provided that the amount of any such net cash proceeds that are utilized for any such Restricted Payment will be excluded from clause (iii)(2) of Section 5.5(a) hereof; (iv3) the payment of any dividend (or, in the case of any partnership or limited liability company, any similar distribution) ), distribution or payment by a Restricted Subsidiary of the Company Issuer to the holders of the Equity Interests (other than Disqualified Stock) of such Restricted Subsidiary; provided that such dividend or similar distribution is paid to all holders of such its Equity Interests on a pro rata basis based on their respective holdings of such Equity Interestsbasis; (v) the payment of any dividend on the EB-5 Preferred Stock; (vi4) the repurchase, redemption redemption, defeasance or other acquisition or retirement for value of Equity Interests deemed to occur upon Indebtedness of the exercise Issuer or exchange of stock options, warrants or other similar rights the Guarantor that is contractually subordinated to the extent such Equity Interests represent a portion Notes or to the Note Guarantee with the net cash proceeds from an incurrence of the exercise or exchange price of those stock options, and the repurchase, redemption or other acquisition or retirement of Equity Interests made in lieu of withholding taxes resulting from the exercise or exchange of stock options, warrants or other similar rightsPermitted Refinancing Indebtedness; (vii) so long as no Default has occurred and is continuing or would be caused thereby, the declaration and payment of regularly scheduled or accrued dividends to holders of any class or series of Disqualified Stock of the Company or any Restricted Subsidiary of the Company or any class or series of preferred stock of a Restricted Subsidiary of the Company, in each case issued on or after the Issue Date in accordance with the Fixed Charge Coverage Ratio test described in Section 5.7 hereof; (viii) payments to fund the purchase by the Company of fractional shares arising out of stock dividends, splits or combination or business combinations; (ix5) the repurchase, redemption or other redemption, acquisition or retirement for value of any Equity Interests of the Company Issuer or any Restricted Subsidiary of the Company Issuer held by any current or former officer, director, consultant or employee (or their estates or beneficiaries of their estates) of the Company’s (Issuer or any of its Restricted Subsidiaries’) current Subsidiaries pursuant to any management equity plan or former directors equity subscription agreement, stock option agreement, shareholders’ agreement or employeessimilar agreement; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may shall not exceed the Fair Market Value thereof and furthermore may not exceed, $50.0 million in any twelve-month period since the Issue Date, $0.5 million (with unused amounts (with respect except to the extent such repurchase, redemption, acquisition or retirement is in connection with (x) the acquisition of a Permitted Business or merger, consolidation or amalgamation otherwise permitted by the Indenture and in such case the aggregate price paid by the Issuer and its Restricted Subsidiaries shall not exceed $0.5 100.0 million limit referred to abovein connection with such acquisition of a Permitted Business or merger, consolidation or amalgamation or (y) the Continental/UAL Merger, in any 12-month period after such date being permitted to which case no dollar limitation shall be carried over into succeeding 12-month periodsapplicable); provided, provided further, that the amounts in any such 12-month period may be increased by an amount not to exceed (1) the cash proceeds received by the Company Issuer or any of its Restricted Subsidiaries from may carry over and make in subsequent twelve-month periods, in addition to the sale amounts permitted for such twelve-month period, up to $25.0 million of the Company’s Equity Interests (other than Disqualified Stock) to any such directors or employees that occurs after the Issue Date (provided that the amount of such cash proceeds utilized for any such repurchase, retirement or other acquisition or retirement will not increase the amount available for Restricted Payments unutilized capacity under this clause (iii5) of attributable to the immediately preceding paragraph and twelve-month period; (6) the repurchase of Equity Interests or other securities deemed to occur upon (A) the exercise of stock options, warrants or other securities convertible or exchangeable into Equity Interests or any other securities, to the extent such proceeds have not otherwise been applied to Equity Interests or other securities represent a portion of the payment exercise price of Restricted Payments) plus those stock options, warrants or other securities convertible or exchangeable into Equity Interests or any other securities or (2B) the cash proceeds withholding of key man life insurance policies received by a portion of Equity Interests issued to employees and other participants under an equity compensation program of the Company and Issuer or its Restricted Subsidiaries after the Issue Dateto cover withholding tax obligations of such persons in respect of such issuance; (x) the purchase or redemption of any Acquired Subordinated Indebtedness of the Company or any of its Restricted Subsidiaries, by application of (i) cash provided from operations in the ordinary course of business or (ii) proceeds from borrowings under the revolving portion of any Credit Facility (so long as within 30 days prior to such purchase or redemption, a corresponding amount of borrowings under the revolving portion of such Credit Facility was repaid from cash provided from operations in the ordinary course of business); provided, in any such case, that the Company is able to incur an additional $1.00 of Indebtedness pursuant to Section 5.5(a) hereof after giving effect to such purchase or redemption; provided, further, that this clause (x) shall not permit the application of any proceeds from any other borrowings under any Credit Facility to effect any such purchase or redemption; and (xi7) so long as no Default has occurred and is continuing continuing, the declaration and payment of regularly scheduled or accrued dividends, distributions or payments to holders of any class or series of Disqualified Stock or subordinated debt of the Issuer or any preferred stock of any Restricted Subsidiary of the Issuer in each case either outstanding on the Closing Date or issued on or after the Closing Date in accordance with Section 4.3 hereof; (8) payments of cash, dividends, distributions, advances, common stock or other Restricted Payments by the Issuer or any of its Restricted Subsidiaries to allow the payment of cash in lieu of the issuance of fractional shares upon (A) the exercise of options or warrants, (B) the conversion or exchange of Capital Stock of any such Person or (C) the conversion or exchange of Indebtedness or hybrid securities into Capital Stock of any such Person; (9) the declaration and payment of dividends to holders of any class or series of Disqualified Stock of the Issuer or any Disqualified Stock or preferred stock of any Restricted Subsidiary of the Issuer to the extent such dividends are included in the definition of “Fixed Charges” for such Person; (10) in the event of a Change of Control, and if no Default shall have occurred and be continuing, the payment, purchase, redemption, defeasance or other acquisition or retirement of any subordinated Indebtedness of the Issuer or the Guarantor, in each case, at a purchase price not greater than 101% of the principal amount of such subordinated Indebtedness, plus any accrued and unpaid interest thereon; provided, however, that prior to such payment, purchase, redemption, defeasance or other acquisition or retirement, the Issuer or the Guarantor (or a third party to the extent permitted by the Indenture) has made a Change of Control Offer as a result of such Change of Control (it being agreed that the Issuer or the Guarantor may pay, purchase, redeem, defease or otherwise acquire or retire such subordinated Indebtedness even if the purchase price exceeds 101% of the principal amount of such subordinated Indebtedness; provided that the amount paid in excess of 101% of such principal amount is otherwise permitted under the Restricted Payments covenant); (11) Restricted Payments made with Excluded Contributions; (12) the distribution, as a dividend or otherwise, of shares of Capital Stock of, or Indebtedness owed to the Issuer or any of its Restricted Subsidiaries by, any Unrestricted Subsidiary; (13) the distribution or dividend of assets or Capital Stock of any Person in connection with any full or partial “spin-off” of a Subsidiary or similar transactions; provided that (i) the Issuer would, on the date of such distribution after giving pro forma effect thereto as if the same had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.3(a) hereof, (ii) such pro forma Fixed Charge Coverage Ratio referred to in the preceding clause (i) would be caused therebygreater than or equal to such Fixed Charge Coverage Ratio immediately prior to such transaction or (iii) if such Subsidiary is not the Guarantor, no Default has occurred and is continuing; (14) the distribution or dividend of assets or Capital Stock of any Person in connection with any full or partial “spin-off” of a Subsidiary or similar transactions having an aggregate Fair Market Value not to exceed $500.0 million since the Closing Date; (15) so long as no Default has occurred and is continuing, other Restricted Payments in an aggregate amount not to exceed $5.0 million since 1.0 billion, such aggregate amount to be calculated from the Issue Closing Date. The amount ; (16) so long as no Default has occurred and is continuing, any Restricted Investment by the Issuer and/or any Restricted Subsidiary of all the Issuer; (17) the payment of any amounts in respect of any restricted stock units or other instruments or rights whose value is based in whole or in part on the value of any Equity Interests issued to any directors, officers or employees of the Issuer or any Restricted Subsidiary of the Issuer; (18) so long as no Default has occurred and is continuing, Restricted Payments (other than i) made to purchase or redeem Equity Interests of Issuer or (ii) consisting of payments in respect of any Indebtedness (whether for purchase or prepayment thereof or otherwise); (19) any Restricted Payment so long as both before and after giving effect to such Restricted Payment, Issuer and its Restricted Subsidiaries have Liquidity in the aggregate of at least $2.2 billion; and (20) Restricted Payments in an aggregate amount which do not exceed 5.0% of the Consolidated Tangible Assets of Issuer and its Restricted Subsidiaries (calculated at the time of such Restricted Payment). (c) In the case of any Restricted Payment that is not cash) shall , the amount of such non-cash Restricted Payment will be the Fair Market Value on the date of such the Restricted Payment of the asset(s) or securities proposed to be paid, transferred or issued by the Company Issuer or such Restricted SubsidiarySubsidiary of the Issuer, as the case may be, pursuant to such the Restricted Payment. The Fair Market Value of any cash Restricted Payment shall be its face amount, and the Fair Market Value of any non-cash Restricted Payment exceeding $5.0 million shall be determined conclusively by two senior officers of the Company acting in good faith whose conclusions with respect thereto shall be set forth in an Officers’ Certificate delivered to the Holders; provided, however, that if the Fair Market Value of any non-cash Restricted Payment exceeds $10.0 million, such Fair Market Value shall be determined conclusively by the Board of Directors of the Company and set forth in a board resolution, and a certified copy of such board resolution shall be delivered to the Holders. . (d) For purposes of determining compliance with this Section 5.54.2, in the event that if a proposed Restricted Payment (or portion thereof) meets the criteria of more than one of the exceptions described categories of Restricted Payments set forth in clauses (i1) through (xi20) above of Section 4.2(b) hereof, or is entitled to be made pursuant to Section 5.5(a4.2(a) hereof, the Company shall, in Issuer will be entitled to classify on the date of its sole discretion, classify payment or later reclassify such Restricted Payment, Payment (or later classify, reclassify or re-divide all or a portion of such Restricted Payment, thereof) in any manner that complies with this Section 5.54.2. (e) For the avoidance of doubt, the following shall not constitute Restricted Payments and therefore will not be subject to any of the restrictions set forth in this Section 4.2: (1) the payment on or with respect to, or purchase, redemption, defeasance or other acquisition or retirement for value of any Indebtedness of the Issuer or any Restricted Subsidiary of the Issuer that is not contractually subordinated to the Notes and the Note Guarantee; (2) the payment of regularly scheduled amounts in respect of, and the issuance of common stock of the Issuer upon conversion of, the 6% Convertible Preferred Securities, Term Income Deferred Equity Securities (TIDES)SM issued by Continental Airlines Finance Trust II or the underlying 6% Convertible Junior Subordinated Debentures due 2030 issued by Continental; and (3) the conversion of the Capital Stock of the Issuer or the Guarantor pursuant to the Airline/Parent Merger. (f) Notwithstanding anything in this Indenture to the contrary, if a Restricted Payment is made at a time when a Default has occurred and is continuing and such Default is subsequently cured, the Default or Event of Default arising from the making of such Restricted Payment during the existence of such Default shall simultaneously be deemed cured.