Common use of million Clause in Contracts

million. The foregoing provisions will not prohibit (i) the payment of any dividend within 60 days after the date of declaration thereof, if at the date of declaration thereof such payment would have complied with the provisions of this Indenture; (ii)(A) the retirement of any Equity Interests of the Company (the "Retired Equity Interests") either in exchange for or out of the net proceeds of the substantially concurrent sale (other than to a Restricted Subsidiary) of other Equity Interests of the Company (the "Refunding Equity Interests") other than any Redeemable Stock and (B) if the Retired Equity Interest consti- tuted Qualified Preferred Stock, the declaration and payment of dividends on the Refunding Equity Interest in an aggregate amount per year no greater than the aggregate amount of dividends per year that was declarable and payable on such Retired Equity Interest immediately prior to such retirement to the extent such Refunding Equity Interest is designated to be Qualified Preferred Stock by the Company at the time of its issuance; (iii) the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company issued to employees, officers or directors of the Company and its Subsidiaries pursuant to agreements containing provisions for the repurchase of such Equity Interests upon death, disability or termination of employment or directorship of such Persons, or in accordance with the Company's xxxxxxx xxxxxxx policy, not to exceed $5.0 million in any fiscal year PLUS the aggregate cash proceeds from any reissuance during such fiscal year of Equity Interests by the Company to employees, officers or directors of the Company and its Subsidiaries PLUS the aggregate cash proceeds from any payments on life insurance policies with respect to any employees, officers or directors of the Company and its Subsidiaries which proceeds are used to purchase the Equity Interests of the Company held by any such employees, officers or directors; (iv) the declaration and payment of dividends to holders of any class or series of the Company's preferred stock issued after the Issue Date (including, without limitation, the declaration and payment of dividends on Refunding Equity Interests in excess of the dividends declarable and payable thereon pursuant to clause (ii) of this paragraph); PROVIDED that at the time of such issuance the Company's Fixed Charge Coverage Ratio for the four full fiscal quarters ending immediately prior to the date of such issuance would have been at least 1.25 to 1, determined on a PRO FORMA basis as if such issuance was at the beginning of such four-quarter period, and at the time of issuance, such preferred stock is designated by the Company to be Qualified Preferred Stock; and (v) an Investment in any Unrestricted Subsidiary either in exchange for Equity Interests of the Company (other than Redeemable Stock) or out of the proceeds of the sale (other than to a Restricted Subsidiary) of Equity Interests of the Company (other than Redeemable Stock) received by the Company not more than 12 months prior to the date of such Investment (to the extent such sale of Equity Interests has not previously been included in any calculation under clause (c) above for purposes of permitting a Restricted Payment); PROVIDED that, in the cases of clauses (iii) (other than with respect to the repurchase of Equity Interests with insurance proceeds), (iv) and (v), no Default or Event of Default shall have occurred and be continuing at the -44- time of such Restricted Payment or shall occur immediately after giving effect thereto. In determining the aggregate amount expended for Restricted Payments in accordance with clause (c) above, (1) no amounts expended under clause (iii) (only with respect to the use of insurance proceeds to repurchase Equity Interests) of the immediately preceding paragraph shall be included and (2) 100% of the amounts expended under clauses (i), (ii), (iii) (other than with respect to the repurchase of Equity Interests with insurance proceeds), (iv) and (v) of the immediately preceding paragraph shall be included.

million. The foregoing provisions will not prohibit (ia) the payment of any dividend within 60 days after the date of declaration thereof, if at the said date of declaration thereof such payment would have complied with the provisions of this Indenture, the Series A/B Indenture, the Series D Indenture and the Series F Indenture; (ii)(Ab) the retirement redemption, repurchase, retirement, defeasance or other acquisition of any subordinated Indebtedness or Equity Interests of the Company (the "Retired Equity Interests") either in exchange for for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Restricted SubsidiarySubsidiary of the Company) of of, other Equity Interests of the Company (the "Refunding Equity Interests") other than any Redeemable Stock and Disqualified Stock), provided that the amount of any such net cash proceeds that are utilized for any such redemption, repurchase, retirement, defeasance or other acquisition shall be excluded from clause (Biii)(B) if of the Retired Equity Interest consti- tuted Qualified Preferred Stockpreceding paragraph; (c) the defeasance, redemption, repurchase, retirement or other acquisition of subordinated Indebtedness with the declaration and net cash proceeds from an incurrence of, or in exchange for, Permitted Refinancing Indebtedness; (d) the payment of dividends on any dividend or distribution by a Restricted Subsidiary of the Refunding Equity Interest in an aggregate amount per year no greater than the aggregate amount of dividends per year that was declarable and payable on such Retired Equity Interest immediately prior to such retirement Company to the extent such Refunding Equity Interest is designated to be Qualified Preferred Stock by the Company at the time of its issuanceor any Wholly Owned Restricted Subsidiary; (iiie) so long as no Default or Event of Default shall have occurred and be continuing, the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company issued to employees, officers or directors of the Company and its Subsidiaries pursuant to agreements containing provisions for the repurchase of such Equity Interests upon death, disability or termination of employment or directorship of such Persons, or in accordance with the Company's xxxxxxx xxxxxxx policy, not to exceed $5.0 million in any fiscal year PLUS the aggregate cash proceeds from any reissuance during such fiscal year of Equity Interests by the Company to employees, officers or directors of the Company and its Subsidiaries PLUS the aggregate cash proceeds from any payments on life insurance policies with respect to any employees, officers or directors of the Company and its Subsidiaries which proceeds are used to purchase the Equity Interests of the Company held by any such employees, officers or directors; (iv) the declaration and payment of dividends to holders of any class or series employee of the Company's preferred stock issued after or any of its Restricted Subsidiaries, provided that the Issue Date (includingaggregate price paid for all such repurchased, without limitationredeemed, the declaration and payment of dividends on Refunding acquired or retired Equity Interests shall not exceed $500,000 in excess of the dividends declarable and payable thereon pursuant to clause (ii) of this paragraph); PROVIDED that at the time of such issuance the Company's Fixed Charge Coverage Ratio for the four full fiscal quarters ending immediately prior to the date of such issuance would have been at least 1.25 to 1, determined on a PRO FORMA basis as if such issuance was at the beginning of such four-quarter period, and at the time of issuance, such preferred stock is designated by the Company to be Qualified Preferred Stockany calendar year; and (vf) an Investment in any Unrestricted Subsidiary either in exchange for Equity Interests of the Company (other than Redeemable Stock) or out of the proceeds of the sale (other than to a Restricted Subsidiary) acquisition of Equity Interests of the Company (other than Redeemable Stock) received in connection with the exercise of stock options or stock appreciation rights by way of cashless exercise or in connection with the satisfaction of withholding tax obligations. 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 Company not more than 12 months prior to the date of such Investment 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 sale designation. All such outstanding Investments will be deemed to constitute Investments in an amount equal to the greater of Equity Interests has not previously been included in (a) the net book value of such Investments at the time of such designation and (b) the 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. The Board of Directors of the Company may at any calculation under clause (c) above for purposes of permitting time designate any Unrestricted Subsidiary to be a Restricted Payment); PROVIDED thatSubsidiary, in provided that such designation shall be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of the cases Company of clauses any outstanding Indebtedness of such Unrestricted Subsidiary and such designation shall only be permitted if (iiia) (other than with respect to such Indebtedness is permitted under Section 4.09 hereof, calculated on a pro forma basis as if such designation had occurred at the repurchase beginning of Equity Interests with insurance proceeds)the four-quarter reference period, (iv) and (v), b) no Default or Event of Default would be in existence following such designation. Any designation of a Subsidiary as an Unrestricted Subsidiary shall have occurred be evidenced to the Trustee by filing with the Trustee a certified copy of a resolution of the Board of Directors giving effect to such designation and an Officers' Certificate certifying that such designation complied with the terms of the definition of Unrestricted Subsidiary set forth in this Indenture and with this Section 4.07. The amount of all Restricted Payments (other than cash) shall be continuing at the -44- time fair market value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall be determined in the manner contemplated by the definition of the term "fair market value," and the results of such determination shall be evidenced by an Officers' Certificate delivered to the Trustee. Not later than the date of making any Restricted Payment, the Company shall deliver to the Trustee an Officers' Certificate stating that such Restricted Payment or shall occur immediately after giving effect thereto. In determining is permitted and setting forth the aggregate amount expended for Restricted Payments in accordance with clause (c) above, (1) no amounts expended under clause (iii) (only with respect to basis upon which the use of insurance proceeds to repurchase Equity Interests) of the immediately preceding paragraph shall be included and (2) 100% of the amounts expended under clauses (i), (ii), (iii) (other than with respect to the repurchase of Equity Interests with insurance proceeds), (iv) and (v) of the immediately preceding paragraph shall be includedcalculations required by this Section 4.07 were computed.

million. The foregoing provisions will not prohibit (i) the payment of any dividend within 60 days after the date of declaration thereof, if at the said date of declaration thereof such payment would have complied with the provisions of this Indenture; (ii)(Aii) the retirement redemption, repurchase, retirement, defeasance or other acquisition of any subordinated Indebtedness or Equity Interests of the Company (the "Retired Equity Interests") either in exchange for for, or out of the net cash proceeds of (x) the substantially concurrent sale (other than to a Restricted SubsidiarySubsidiary of the Company) of of, other Equity Interests of the Company (the "Refunding Equity Interests") other than any Redeemable Stock and Disqualified Stock) or (By) if a substantially concurrent contribution of cash to the Retired Equity Interest consti- tuted Qualified Preferred Stock, common equity of the declaration and payment of dividends on Company; provided that the Refunding Equity Interest in an aggregate amount per year no greater than the aggregate amount of dividends per year any such net cash proceeds that was declarable and payable on are utilized for any such Retired Equity Interest immediately prior to such retirement to redemption, repurchase, retirement, defeasance or other acquisition shall be excluded from clause (c) (ii) of the extent such Refunding Equity Interest is designated to be Qualified Preferred Stock by the Company at the time of its issuancepreceding paragraph; (iii) the defeasance, redemption, repurchase or other acquisition of subordinated Indebtedness with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness; (iv) the payment of any dividend by a Restricted Subsidiary of the Company to the holders of its common Equity Interests on a pro rata basis; and (v) the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company issued to employees, officers or directors of the Company and its Subsidiaries pursuant to agreements containing provisions for the repurchase of such Equity Interests upon death, disability or termination of employment or directorship of such Persons, or in accordance with the Company's xxxxxxx xxxxxxx policy, not to exceed $5.0 million in any fiscal year PLUS the aggregate cash proceeds from any reissuance during such fiscal year of Equity Interests by the Company to employees, officers or directors of the Company and its Subsidiaries PLUS the aggregate cash proceeds from any payments on life insurance policies with respect to any employees, officers or directors of the Company and its Subsidiaries which proceeds are used to purchase the Equity Interests of the Company held by any such employees, officers or directors; (iv) the declaration and payment of dividends to holders of any class or series member of the Company's preferred stock issued after (or any of its Restricted Subsidiaries') management (or any estate, heir or legatee of any such member); provided that the Issue Date (includingaggregate price paid for all such purchased, without limitationredeemed, the declaration and payment of dividends on Refunding acquired or retired Equity Interests in excess of the dividends declarable and payable thereon pursuant to clause (ii) of this paragraph); PROVIDED that at the time of such issuance the Company's Fixed Charge Coverage Ratio for the four full fiscal quarters ending immediately prior to the date of such issuance would have been at least 1.25 to 1, determined on a PRO FORMA basis as if such issuance was at the beginning of such four-quarter period, and at the time of issuance, such preferred stock is designated by the Company to be Qualified Preferred Stock; and (v) an Investment shall not exceed $250,000 in any Unrestricted Subsidiary either in exchange for Equity Interests of the Company (other than Redeemable Stock) or out of the proceeds of the sale (other than to a Restricted Subsidiary) of Equity Interests of the Company (other than Redeemable Stock) received by the Company not more than 12 months prior to the date of such Investment (to the extent such sale of Equity Interests has not previously been included in any calculation under clause (c) above for purposes of permitting a Restricted Payment); PROVIDED that, in the cases of clauses (iii) (other than with respect to the repurchase of Equity Interests with insurance proceeds), (iv) twelve-month period and (v), no Default or Event of Default shall have occurred and be continuing immediately after such transaction. 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 Company and its Restricted Subsidiaries (except to the extent repaid in cash) in the Subsidiary so designated will be deemed to be Restricted Payments or, at the -44- election of the Company Permitted Investments (if in compliance with such definition) at the time of such designation and will reduce the amount available for Restricted Payments under the first paragraph of this covenant or Permitted Investments as applicable. 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. Such designation will only be permitted if such Restricted Payment or shall occur immediately after giving effect theretoPermitted Investments, as applicable, would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. In determining the aggregate The amount expended for of all Restricted Payments in accordance with clause (c) above, (1) no amounts expended under clause (iii) (only with respect to the use of insurance proceeds to repurchase Equity Interests) of the immediately preceding paragraph shall be included and (2) 100% of the amounts expended under clauses (i), (ii), (iii) (other than cash) shall be the fair market value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall be determined by the Board of Directors whose resolution with respect thereto shall be delivered to the repurchase Trustee, such determination to be based upon an opinion or appraisal issued by an accounting, appraisal or investment banking firm of Equity Interests national standing if such fair market value exceeds $5.0 million. Not later than the date of making any Restricted Payment, the Company shall deliver to the Trustee an Officers' Certificate stating that such Restricted Payment is permitted and setting forth the basis upon which the calculations required by this Section 4.07 were computed, together with insurance proceeds), (iv) and (v) a copy of the immediately preceding paragraph shall be includedany fairness opinion or appraisal required by this Indenture.

million. The foregoing preceding provisions will shall not prohibit prohibit: (i) the payment of any dividend within 60 days after the date of declaration thereof, if at the date of declaration thereof declaration, such payment would have complied with the provisions of this Indenture; (ii)(Aii) the retirement redemption, repurchase, retirement, defeasance or other acquisition of any subordinated Indebtedness of the Company or any Guarantor or of any Equity Interests of the Company (the "Retired Equity Interests") either in exchange for for, or out of the net cash proceeds of the substantially concurrent sale sale, issuance of or contribution for, (other than to a Restricted Subsidiary) Subsidiary of other the Company), Equity Interests of the Company (the "Refunding Equity Interests") other than any Redeemable Stock and (B) if Disqualified Stock); provided that the Retired Equity Interest consti- tuted Qualified Preferred Stock, the declaration and payment of dividends on the Refunding Equity Interest in an aggregate amount per year no greater than the aggregate amount of dividends per year any such net cash proceeds that was declarable and payable on are utilized for any such Retired Equity Interest immediately prior to such retirement to payment, redemption, repurchase, retirement, defeasance, other acquisition or dividend or distribution shall be excluded from clause (c) of the extent such Refunding Equity Interest is designated to be Qualified Preferred Stock by the Company at the time of its issuancepreceding paragraph; (iii) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the defeasance, redemption, repurchase or other acquisition of subordinated Indebtedness with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness; (iv) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the payment of any dividend or distribution by a Restricted Subsidiary of the Company to the holders of its common Equity Interests on a pro rata basis; (v) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company issued to employees, officers or directors of the Company and its Subsidiaries pursuant to agreements containing provisions for the repurchase of such Equity Interests upon death, disability or termination of employment or directorship of such Persons, or in accordance with the Company's xxxxxxx xxxxxxx policy, not to exceed $5.0 million in any fiscal year PLUS the aggregate cash proceeds from any reissuance during such fiscal year of Equity Interests by the Company to employees, officers or directors of the Company and its Subsidiaries PLUS the aggregate cash proceeds from any payments on life insurance policies with respect to any employees, officers or directors of the Company and its Subsidiaries which proceeds are used to purchase the Equity Interests Restricted Subsidiary of the Company held by any such employeespresent, officers former or directors; (iv) the declaration and payment of dividends to holders of any class future employee, director or series Consultant of the Company's preferred stock issued after the Issue Date (including, without limitation, the declaration and payment or any of dividends on Refunding Equity Interests in excess its Restricted Subsidiaries or any parent of the dividends declarable and payable thereon Company) pursuant to clause (ii) any management equity subscription agreement or stock option agreement in effect as of this paragraph); PROVIDED that at the time of such issuance the Company's Fixed Charge Coverage Ratio for the four full fiscal quarters ending immediately prior to the date of this Indenture or any other similar agreement; provided that the aggregate price paid for all such issuance would have been at least 1.25 repurchased, redeemed, acquired or retired Equity Interests shall not exceed $2.0 million in any twelve-month period (with unused amounts in any calendar year being carried over to 1succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $4.0 million in any calendar year); provided that such amount in any calendar year may be increased by an amount not to exceed (A) the cash proceeds from the sale of Equity Interests of the Company, determined on a PRO FORMA basis as if such issuance was at any parent of the beginning Company or any of its Restricted Subsidiaries to present, former or future directors, Consultants or employees of the Company, its Restricted Subsidiaries or any parent of the Company that occurred since February 20, 2001 (to the extent the cash proceeds from the sale of such four-quarter periodEquity Interest have not otherwise been included in clause (c) of the immediately preceding paragraph), and at plus (B) the time cash proceeds of issuance, such preferred stock is designated key man life insurance policies received by the Company, its Restricted Subsidiaries or any parent of the Company to be Qualified Preferred Stocksince February 20, 2001; and (v) an Investment in provided that cancellation of Indebtedness owing to the Company from present, former or future directors, Consultants, or employees of the Company, any Unrestricted Subsidiary either in exchange for of its Restricted Subsidiaries or any parent of the Company the proceeds of which were used solely to purchase Equity Interests of the Company (other than Redeemable Stock) or out of the proceeds of the sale (other than will not be deemed to constitute a Restricted Subsidiary) Payment so long as the value of such Equity Interests of the Company (other than Redeemable Stock) received by the Company issued did not more than 12 months prior to the date of such Investment (to the extent such sale of Equity Interests has not previously been included in any calculation under increase clause (c) above for purposes of permitting a Restricted Payment)the preceding paragraph; PROVIDED that, in the cases of clauses (iiivi) (other than with respect to the repurchase of Equity Interests with insurance proceeds), (iv) and (v), so long as no Default or Event of Default shall have has occurred and is continuing or would be continuing caused thereby, Restricted Investments made after the date of this Indenture having an aggregate Fair Market Value, taken together with all other Investments made pursuant to this clause (vi) and, without duplication, Investments made pursuant to the this clause (vi) and, without duplication, Investments made pursuant to the comparable clause of the indentures relating to the Existing Notes that are at that time outstanding (without giving effect to any write-up, write-off or write-down), not to exceed 5% of the Company's Consolidated Tangible Assets as of the end of the fiscal quarter most recently completed (with Fair Market Value of each Investment being measured at the -44- time made and without giving effect to subsequent changes in value); (vii) repurchases of Equity Interests deemed to occur upon exercise of stock options if such Equity Interests represent a portion of the exercise price of such options; (viii) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the payment of dividends on the Company's Capital Stock of up to 6% per annum of the net proceeds received by the Company in its March, 2002 initial public offering; (ix) Investments in Unrestricted Subsidiaries that are made with Excluded Contributions; (x) non-cash Investments in Unrestricted Subsidiaries in the form of administrative, financial, accounting, management, or other similar services (together with a non-cash allocation of corporate overhead), in each case in the ordinary course of business; (xi) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the payment of dividends on Disqualified Stock which is issued in accordance with Section 4.09 hereof; and (xii) transactions contemplated by the offering memorandum dated September 24, 2003 in connection with the issuance of the Notes under the caption "Use of Proceeds". The amount of all Restricted Payments (other than cash) shall be the Fair Market Value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued to or by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment; provided that, notwithstanding the other provisions of this Indenture, with respect to this covenant, an MAI appraiser, accounting firm or valuation firm with experience in such valuation and not affiliated with the Company shall be required if the fair market value of such Restricted Payment or Restricted Payments for any series of transactions exceeds $2.0 million. At least quarterly, the Company shall occur immediately after giving effect theretodeliver to the Trustee an Officers' Certificate stating that all Restricted Payments during such quarter were permitted and setting forth the basis upon which the calculations required by this Section 4.07 were computed, together with a copy of any fairness opinion or appraisal required by this Indenture. If a Guarantee constituted a Restricted Investment at the time made, then the payment under such Guarantee shall not constitute an additional Restricted Investment. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default or an Event of Default. In determining the aggregate event of any such designation, all outstanding Investments owned by the Company and its Restricted Subsidiaries in the Subsidiary so designated shall be deemed to be an Investment made as of the time of such designation and shall reduce the amount expended available for Restricted Payments under the first paragraph of this Section 4.07 or Permitted Investments, as applicable. All such outstanding Investments shall be deemed to constitute Restricted Investments in accordance an amount equal to the 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. The Board of Directors may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if such redesignation would not cause a Default or an Event of Default. Any such designation by the Board of Directors shall be evidenced to the Trustee by filing with clause the Trustee a certified copy of the board resolution giving effect to such designation and an Officers' Certificate certifying that such designation complied with the foregoing conditions and was permitted by this Section 4.07. If, at any time, any Unrestricted Subsidiary would fail to meet the definition of 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 (cand, 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 Section 4.09 hereof). 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 (a) abovesuch 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 (1b) no amounts expended under clause (iii) (only with respect to the use Default or Event of insurance proceeds to repurchase Equity Interests) of the immediately preceding paragraph shall Default would be included and (2) 100% of the amounts expended under clauses (i), (ii), (iii) (other than with respect to the repurchase of Equity Interests with insurance proceeds), (iv) and (v) of the immediately preceding paragraph shall be includedin existence following such designation.

million. The foregoing provisions will not prohibit (i) the payment of any dividend within 60 days after the date of declaration thereof, if at the said date of declaration thereof such payment would have complied with the provisions of this the Indenture; (ii)(Aii) the retirement redemption, repurchase, retirement, defeasance or other acquisition of any subordinated Indebtedness or Equity Interests of the Company (the "Retired Equity Interests") either or any Guarantor in exchange for for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Restricted SubsidiarySubsidiary of the Company) of of, other Equity Interests of the Company (the "Refunding Equity Interests") other than any Redeemable Stock and (B) if Disqualified Stock); provided that the Retired Equity Interest consti- tuted Qualified Preferred Stock, the declaration and payment of dividends on the Refunding Equity Interest in an aggregate amount per year no greater than the aggregate amount of dividends per year any such net cash proceeds that was declarable and payable on are utilized for any such Retired Equity Interest immediately prior to such retirement to redemption, repurchase, retirement, defeasance or other acquisition shall be excluded from clause (c) (ii) of the extent such Refunding Equity Interest is designated to be Qualified Preferred Stock by the Company at the time of its issuancepreceding paragraph; (iii) the defeasance, redemption, repurchase, retirement or other acquisition of subordinated Indebtedness in exchange for, or with the net cash proceeds from, an incurrence of Permitted Refinancing Indebtedness; (iv) the payment of any dividend (or the making of a similar distribution or redemption) by a Restricted Subsidiary of the Company to the holders of its common Equity Interests on a pro rata basis; (v) so long as no Default or Event of Default shall have occurred and is continuing, the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company, Holdings or any Restricted Subsidiary of the Company, held by any member of the Company's (or any of its Subsidiaries') management, employees or consultants pursuant to any management, employee or consultant equity subscription agreement or stock option agreement in effect as of the date of the Indenture; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall not exceed the sum of (A) $10.0 million and (B) the aggregate cash proceeds received by the Company issued from any reissuance of Equity Interests by Holdings or the Company to employees, officers or directors members of management of the Company and its Restricted Subsidiaries pursuant (provided that the cash proceeds referred to agreements containing provisions for in this clause (B) shall be excluded from clause (c)(ii), of the repurchase preceding paragraph); (vi) payments required to be made under the Tax Sharing Agreement; (vii) distributions made by the Company on the date hereof, the proceeds of such Equity Interests upon death, disability which are utilized solely to consummate the Recapitalization; (viii) the payment of dividends or termination the making of employment loans or directorship of such Persons, or in accordance with advances by the Company's xxxxxxx xxxxxxx policy, Company to Holdings not to exceed $5.0 1.5 million in any fiscal year PLUS the aggregate cash proceeds from any reissuance during such fiscal year of Equity Interests for costs and expenses incurred by the Company to employees, officers Holdings in its capacity as a holding company or directors for services rendered by Holdings on behalf of the Company and its Subsidiaries PLUS the aggregate cash proceeds from any payments on life insurance policies with respect to any employees, officers or directors of the Company and its Subsidiaries which proceeds are used to purchase the Equity Interests of the Company held by any such employees, officers or directorsCompany; (ivix) so long as no Default or Event of Default has occurred and is continuing, the declaration and payment of dividends to holders of any class or series of Disqualified Stock of the Company's preferred stock Company or any Guarantor issued after the Issue Date date hereof in accordance with Section 4.09; (including, without limitation, the declaration and payment of dividends on Refunding Equity Interests in excess of the dividends declarable and payable thereon pursuant to clause x) so long as (iiA) of this paragraph); PROVIDED that at the time of such issuance the Company's Fixed Charge Coverage Ratio for the four full fiscal quarters ending immediately prior to the date of such issuance would have been at least 1.25 to 1, determined on a PRO FORMA basis as if such issuance was at the beginning of such four-quarter period, and at the time of issuance, such preferred stock is designated by the Company to be Qualified Preferred Stock; and (v) an Investment in any Unrestricted Subsidiary either in exchange for Equity Interests of the Company (other than Redeemable Stock) or out of the proceeds of the sale (other than to a Restricted Subsidiary) of Equity Interests of the Company (other than Redeemable Stock) received by the Company not more than 12 months prior to the date of such Investment (to the extent such sale of Equity Interests has not previously been included in any calculation under clause (c) above for purposes of permitting a Restricted Payment); PROVIDED that, in the cases of clauses (iii) (other than with respect to the repurchase of Equity Interests with insurance proceeds), (iv) and (v), no Default or Event of Default shall have has occurred and be is continuing at the -44- time of such Restricted Payment or shall occur and (B) immediately before and immediately after giving effect thereto, the Company would 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 described under Section 4.09, from and after October 15, 2002, payments of cash dividends to Holdings in an amount sufficient to enable Holdings to make payments of interest required to be made in respect of the Senior Discount Debentures in accordance with the terms thereof in effect on the date of the Indenture, provided such interest payments are made with the proceeds of such dividends; and (xi) the payment of dividends by the Company to Holdings of not more than 20% of the net proceeds from any sale of all or substantially all of the Capital Stock or assets of the Company's Popular Club Plan business or Xxxxxxxx & Xxxxx business (as each such business is constituted on the Issue Date), provided that such dividends shall only be permitted to the extent that Holdings immediately utilizes the proceeds thereof to repay, redeem, repurchase or otherwise retire outstanding Senior Discount Debentures. In determining The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default or an Event of Default. For purposes of making such determination, all outstanding Investments by the aggregate Company 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 expended available for Restricted Payments under the first paragraph of this covenant. All such outstanding Investments will be deemed to constitute Investments in accordance with clause (c) above, (1) no amounts expended under clause (iii) (only with respect an amount equal to the use greater of insurance proceeds to repurchase Equity Interests(i) the net book value of such Investments at the immediately preceding paragraph shall be included time of such designation and (2ii) 100% the fair market value of such Investments at the amounts expended under clauses time of such designation. Such designation will 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 (i), (ii), (iii) all Restricted Payments (other than cash) shall be the fair market value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment and (ii) Qualified Proceeds (other than cash) shall be the fair market value on the date of receipt thereof by the Company of such Qualified Proceeds. The fair market value of any non-cash Restricted Payment and Qualified Proceeds shall be determined by the Board of Directors whose resolution with respect thereto shall be delivered to the repurchase Trustee, such determination to be based upon an opinion or appraisal issued by an accounting, appraisal or investment banking firm of Equity Interests national standing if such fair market value exceeds $10.0 million. Not later than the date of making any Restricted Payment, the Company shall deliver to the Trustee an Officers' Certificate stating that such Restricted Payment is permitted and setting forth the basis upon which the calculations required by Section 4.07 were computed, together with insurance proceeds), (iv) and (v) a copy of the immediately preceding paragraph shall be includedany fairness opinion or appraisal required by this Indenture.

million. The foregoing provisions will not prohibit (i) the payment of any dividend within 60 days after the date of declaration thereof, if at the date of declaration thereof such payment would have complied with the provisions of this Indenture; (ii)(A) the retirement of any Equity Interests of the Company (the "Retired Equity Interests") either in exchange for or out of the net proceeds of the substantially concurrent sale (other than to a Restricted Subsidiary) of other Equity Interests of the Company (the "Refunding Equity Interests") other than any Redeemable Stock and (B) if the Retired Equity Interest consti- tuted constituted Qualified Preferred Stock, the declaration and payment of dividends on the Refunding Equity Interest in an aggregate amount per year no greater than the aggregate amount of dividends per year that was declarable and payable on such Retired Equity Interest immediately prior to such retirement to the extent such Refunding Equity Interest is designated to be Qualified Preferred Stock by the Company at the time of its issuance; (iii) the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company issued to employees, officers or directors of the Company and its Subsidiaries pursuant to agreements containing provisions for the repurchase of such Equity Interests upon death, disability or termination of employment or directorship of such Persons, or in accordance with the Company's xxxxxxx xxxxxxx policy, not to exceed $5.0 million in any fiscal year PLUS plus the aggregate cash proceeds from any reissuance during such fiscal year of Equity Interests by the Company to employees, officers or directors of the Company and its Subsidiaries PLUS plus the aggregate cash proceeds from any payments on life insurance policies with respect to any employees, officers or directors of the Company and its Subsidiaries which proceeds are used to purchase the Equity Interests of the Company held by any such employees, officers or directors; (iv) the declaration and payment of dividends to holders of any class or series of the Company's preferred stock issued after the Issue Date (including, without limitation, the declaration and payment of dividends on Refunding Equity Interests in excess of the dividends declarable and payable thereon pursuant to clause (ii) of this paragraph); PROVIDED provided that at the time of such issuance the Company's Fixed Charge Coverage Ratio for the four full fiscal quarters ending immediately prior to the date of such issuance would have been at least 1.25 to 1, determined on a PRO FORMA pro forma basis as if such issuance was at the beginning of such four-quarter period, and at the time of issuance, such preferred stock is designated by the Company to be Qualified Preferred Stock; and (v) an Investment in any Unrestricted Subsidiary either in exchange for Equity Interests of the Company (other than Redeemable Stock) or out of the proceeds of the sale (other than to a Restricted Subsidiary) of Equity Interests of the Company (other than Redeemable Stock) received by the Company not more than 12 months prior to the date of such Investment (to the extent such sale of Equity Interests has not previously been included in any calculation under clause (c) above for purposes of permitting a Restricted Payment); PROVIDED provided that, in the cases of clauses (iii) (other than with respect to the repurchase of Equity Interests with insurance proceeds), (iv) and (v), no Default or Event of Default shall have occurred and be continuing at the -44- time of such Restricted Payment or shall occur immediately after giving effect thereto. In determining the aggregate amount expended for Restricted Payments in accordance with clause (c) above, (1) no amounts expended under clause (iii) (only with respect to the use of insurance proceeds to repurchase Equity Interests) of the immediately preceding paragraph shall be included and (2) 100% of the amounts expended under clauses (i), (ii), (iii) (other than with respect to the repurchase of Equity Interests with insurance proceeds), (iv) and (v) of the immediately preceding paragraph shall be included.

million. The foregoing provisions will not prohibit (i) the payment of any dividend within 60 days after the date of declaration thereof, if at the said date of declaration thereof such payment would have complied with the provisions of this Indenturehereof; (ii)(Aii) the retirement redemption, repurchase, retirement, defeasance or other acquisition of any subordinated Indebtedness or Equity Interests of the Company (the "Retired Equity Interests") either in exchange for for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Restricted SubsidiarySubsidiary of the Company) of of, other Equity Interests of the Company (the "Refunding Equity Interests") other than any Redeemable Stock and (B) if Disqualified Stock); provided that the Retired Equity Interest consti- tuted Qualified Preferred Stock, the declaration and payment of dividends on the Refunding Equity Interest in an aggregate amount per year no greater than the aggregate amount of dividends per year any such net cash proceeds that was declarable and payable on are utilized for any such Retired Equity Interest immediately prior to such retirement to redemption, repurchase, retirement, defeasance or other acquisition shall be excluded from clause (c)(ii) of the extent such Refunding Equity Interest is designated to be Qualified Preferred Stock by the Company at the time of its issuancepreceding paragraph; (iii) the defeasance, redemption, repurchase, retirement or other acquisition of subordinated Indebtedness in exchange for, or with the net cash proceeds from, an incurrence of Permitted Refinancing Indebtedness; (iv) the payment of any dividend (or the making of a similar distribution or redemption) by a Restricted Subsidiary of the Company to the holders of its common Equity Interests on a pro rata basis; (v) so long as no Default or Event of Default shall have occurred and is continuing, the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company issued to employeesCompany, officers or directors any Restricted Subsidiary of the Company and its Subsidiaries pursuant to agreements containing provisions for the repurchase Company, held by any member of such Equity Interests upon death, disability or termination of employment or directorship of such Persons, or in accordance with the Company's xxxxxxx xxxxxxx policy(or any of its Restricted Subsidiaries') management, employees or consultants pursuant to any management, employee or consultant equity subscription agreement or stock option agreement in effect as of the date hereof; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall not to exceed the sum of (A) $5.0 10.0 million in any fiscal year PLUS and (B) the aggregate cash proceeds received by the Company from any reissuance during such fiscal year of Equity Interests by the Company to employees, officers or directors members of management of the Company and its Restricted Subsidiaries PLUS (provided that the aggregate cash proceeds referred to in this clause (B) shall be excluded from any payments on life insurance policies with respect to any employeesclause (c)(ii), officers or directors of the Company and its Subsidiaries which proceeds are used to purchase the Equity Interests of preceding paragraph); (vi) distributions made by the Company held by any such employeeson the date hereof, officers the proceeds of which are utilized solely to consummate the Recapitalization; and (vii) so long as no Default or directors; (iv) Event of Default has occurred and is continuing, the declaration and payment of dividends to holders of any class or series of Disqualified Stock of the Company's preferred stock Company issued after the Issue Date date hereof in accordance with Section 4.09. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default or an Event of Default. For purposes of making such determination, all outstanding Investments by the Company and its Restricted Subsidiaries (including, without limitation, except to the declaration and payment of dividends on Refunding Equity Interests extent repaid in excess of cash) in the dividends declarable and payable thereon pursuant Subsidiary so designated will be deemed to clause (ii) of this paragraph); PROVIDED that be Restricted Payments at the time of such issuance designation and will reduce the Company's Fixed Charge Coverage Ratio amount available for Restricted Payments under the four full fiscal quarters ending immediately prior first paragraph of this covenant. All such outstanding Investments will be deemed to constitute Investments in an amount equal to the date greater of (i) the net book value of such issuance would have been at least 1.25 to 1, determined on a PRO FORMA basis as if such issuance was at the beginning of such four-quarter period, and Investments at the time of issuance, such preferred stock is designated designation and (ii) the fair market value of such Investments at the time of such designation. Such designation will 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 (i) all Restricted Payments (other than cash) shall be the fair market value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to be Qualified Preferred Stock; the Restricted Payment and (vii) an Investment in any Unrestricted Subsidiary either in exchange for Equity Interests of the Company Qualified Proceeds (other than Redeemable Stockcash) or out shall be the fair market value on the date of the proceeds of the sale (other than to a Restricted Subsidiary) of Equity Interests of the Company (other than Redeemable Stock) received receipt thereof by the Company not more of such Qualified Proceeds. The fair market value of any non-cash Restricted Payment and Qualified Proceeds shall be determined by the Board of Directors whose resolution with respect thereto shall be delivered to the Trustee, such determination to be based upon an opinion or appraisal issued by an accounting, appraisal or investment banking firm of national standing if such fair market value exceeds $10.0 million. Not later than 12 months prior to the date of such Investment (making any Restricted Payment, the Company shall deliver to the extent such sale of Equity Interests has not previously been included in any calculation under clause (c) above for purposes of permitting a Restricted Payment); PROVIDED that, in the cases of clauses (iii) (other than with respect to the repurchase of Equity Interests with insurance proceeds), (iv) and (v), no Default or Event of Default shall have occurred and be continuing at the -44- time of Trustee an Officers' Certificate stating that such Restricted Payment is permitted and setting forth the basis upon which the calculations required by Section 4.07 were computed, together with a copy of any fairness opinion or shall occur immediately after giving effect thereto. In determining the aggregate amount expended for Restricted Payments in accordance with clause (c) above, (1) no amounts expended under clause (iii) (only with respect to the use of insurance proceeds to repurchase Equity Interests) of the immediately preceding paragraph shall be included and (2) 100% of the amounts expended under clauses (i), (ii), (iii) (other than with respect to the repurchase of Equity Interests with insurance proceeds), (iv) and (v) of the immediately preceding paragraph shall be includedappraisal required by this Indenture.

million. The foregoing provisions will not prohibit (ia) the payment of any dividend within 60 days after the date of declaration thereof, if at the said date of declaration thereof such payment would have complied with the provisions of this Indenture and the Series A/B Indenture; (ii)(Ab) the retirement redemption, repurchase, retirement, defeasance or other acquisition of any subordinated Indebtedness or Equity Interests of the Company (the "Retired Equity Interests") either in exchange for for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Restricted SubsidiarySubsidiary of the Company) of of, other Equity Interests of the Company (the "Refunding Equity Interests") other than any Redeemable Stock and Disqualified Stock), provided that the amount of any such net cash proceeds that are utilized for any such redemption, repurchase, retirement, defeasance or other acquisition shall be excluded from clause (Biii)(B) if of the Retired Equity Interest consti- tuted Qualified Preferred Stockpreceding paragraph; (c) the defeasance, redemption, repurchase, retirement or other acquisition of subordinated Indebtedness with the declaration and net cash proceeds from an incurrence of, or in exchange for, Permitted Refinancing Indebtedness; (d) the payment of dividends on any dividend or distribution by a Restricted Subsidiary of the Refunding Equity Interest in an aggregate amount per year no greater than the aggregate amount of dividends per year that was declarable and payable on such Retired Equity Interest immediately prior to such retirement Company to the extent such Refunding Equity Interest is designated to be Qualified Preferred Stock by the Company at the time of its issuanceor any Wholly Owned Restricted Subsidiary; (iiie) so long as no Default or Event of Default shall have occurred and be continuing, the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company issued to employees, officers or directors of the Company and its Subsidiaries pursuant to agreements containing provisions for the repurchase of such Equity Interests upon death, disability or termination of employment or directorship of such Persons, or in accordance with the Company's xxxxxxx xxxxxxx policy, not to exceed $5.0 million in any fiscal year PLUS the aggregate cash proceeds from any reissuance during such fiscal year of Equity Interests by the Company to employees, officers or directors of the Company and its Subsidiaries PLUS the aggregate cash proceeds from any payments on life insurance policies with respect to any employees, officers or directors of the Company and its Subsidiaries which proceeds are used to purchase the Equity Interests of the Company held by any such employees, officers or directors; (iv) the declaration and payment of dividends to holders of any class or series employee of the Company's preferred stock issued after or any of its Restricted Subsidiaries, provided that the Issue Date (includingaggregate price paid for all such repurchased, without limitationredeemed, the declaration and payment of dividends on Refunding acquired or retired Equity Interests shall not exceed $500,000 in excess of the dividends declarable and payable thereon pursuant to clause (ii) of this paragraph); PROVIDED that at the time of such issuance the Company's Fixed Charge Coverage Ratio for the four full fiscal quarters ending immediately prior to the date of such issuance would have been at least 1.25 to 1, determined on a PRO FORMA basis as if such issuance was at the beginning of such four-quarter period, and at the time of issuance, such preferred stock is designated by the Company to be Qualified Preferred Stockany calendar year; and (vf) an Investment in any Unrestricted Subsidiary either in exchange for Equity Interests of the Company (other than Redeemable Stock) or out of the proceeds of the sale (other than to a Restricted Subsidiary) acquisition of Equity Interests of the Company (other than Redeemable Stock) received in connection with the exercise of stock options or stock appreciation rights by way of cashless exercise or in connection with the satisfaction of withholding tax obligations. 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 Company not more than 12 months prior to the date of such Investment 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 sale designation. All such outstanding Investments will be deemed to constitute Investments in an amount equal to the greater of Equity Interests has not previously been included in (a) the net book value of such Investments at the time of such designation and (b) the 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. The Board of Directors of the Company may at any calculation under clause (c) above for purposes of permitting time designate any Unrestricted Subsidiary to be a Restricted Payment); PROVIDED thatSubsidiary, in provided that such designation shall be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of the cases Company of clauses any outstanding Indebtedness of such Unrestricted Subsidiary and such designation shall only be permitted if (iiia) (other than with respect to such Indebtedness is permitted under Section 4.09 hereof, calculated on a pro forma basis as if such designation had occurred at the repurchase beginning of Equity Interests with insurance proceeds)the four-quarter reference period, (iv) and (v), b) no Default or Event of Default would be in existence following such designation. Any designation of a Subsidiary as an Unrestricted Subsidiary shall have occurred be evidenced to the Trustee by filing with the Trustee a certified copy of a resolution of the Board of Directors giving effect to such designation and an Officers' Certificate certifying that such designation complied with the terms of the definition of Unrestricted Subsidiary set forth in this Indenture and with this Section 4.07. The amount of all Restricted Payments (other than cash) shall be continuing at the -44- time fair market value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall be determined in the manner contemplated by the definition of the term "fair market value," and the results of such determination shall be evidenced by an Officers' Certificate delivered to the Trustee. Not later than the date of making any Restricted Payment, the Company shall deliver to the Trustee an Officers' Certificate stating that such Restricted Payment or shall occur immediately after giving effect thereto. In determining is permitted and setting forth the aggregate amount expended for Restricted Payments in accordance with clause (c) above, (1) no amounts expended under clause (iii) (only with respect to basis upon which the use of insurance proceeds to repurchase Equity Interests) of the immediately preceding paragraph shall be included and (2) 100% of the amounts expended under clauses (i), (ii), (iii) (other than with respect to the repurchase of Equity Interests with insurance proceeds), (iv) and (v) of the immediately preceding paragraph shall be includedcalculations required by this Section 4.07 were computed.

million. The foregoing provisions will shall not prohibit (i) the payment of any dividend within 60 days after the date of declaration thereof, if at the said date of declaration thereof such payment would have complied with the provisions of this Indenture; : (ii)(Aii) the retirement redemption, repurchase, retirement, defeasance or other acquisition of any pari passu or subordinated Indebtedness or Equity Interests of the Company (the "Retired Equity Interests") either in exchange for for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Restricted SubsidiarySubsidiary of the Company) of of, other Equity Interests of the Company (the "Refunding Equity Interests") other than any Redeemable Stock and (B) if Disqualified Stock); provided that the Retired Equity Interest consti- tuted Qualified Preferred Stock, the declaration and payment of dividends on the Refunding Equity Interest in an aggregate amount per year no greater than the aggregate amount of dividends per year any such net cash proceeds that was declarable and payable on are utilized for any such Retired Equity Interest immediately prior to such retirement to redemption, repurchase, retirement, defeasance or other acquisition shall be excluded from clause (c) (ii) of the extent such Refunding Equity Interest is designated to be Qualified Preferred Stock by the Company at the time of its issuancepreceding paragraph; (iii) the defeasance, redemption, repurchase or other acquisition of pari passu or subordinated Indebtedness with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness; (iv) the payment of any dividend by a Restricted Subsidiary of the Company to the holders of its common Equity Interests on a pro rata basis; (v) the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company issued to employees, officers or directors of the Company and its Subsidiaries pursuant to agreements containing provisions for the repurchase of such Equity Interests upon death, disability or termination of employment or directorship of such Persons, or in accordance with the Company's xxxxxxx xxxxxxx policy, not to exceed $5.0 million in any fiscal year PLUS the aggregate cash proceeds from any reissuance during such fiscal year of Equity Interests by the Company to employees, officers or directors of the Company and its Subsidiaries PLUS the aggregate cash proceeds from any payments on life insurance policies with respect to any employees, officers or directors of the Company and its Subsidiaries which proceeds are used to purchase the Equity Interests Restricted Subsidiary of the Company held by any such employees, officers or directors; (iv) the declaration and payment of dividends to holders of any class or series member of the Company's preferred (or any of its Restricted Subsidiaries') management pursuant to any management equity subscription agreement or stock issued option agreement in effect as of the date of this Indenture; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall not exceed $5.0 million in the aggregate since the Issue Date; (vi) the repurchase of the Harvard Warrant required pursuant to agreements in effect on the Issue Date (as in effect on such date), provided that the consideration paid by the Company shall consist solely of Harvard Notes; (vii) the purchase of common stock held by management of the Company required pursuant to the Shareholders' Agreement, provided that the consideration paid by the Company shall consist solely of Management Notes; and (viii) the payment on or after the Issue Date (including, without limitation, the declaration and payment of dividends on Refunding Equity Interests in excess respect of the dividends declarable Company's common stock in an aggregate amount not exceeding $6.0 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 Company and payable thereon pursuant its Restricted Subsidiaries (except to clause (iithe extent repaid in cash) of this paragraph); PROVIDED that in the Subsidiary so designated shall be deemed to be Restricted Payments at the time of such issuance designation and shall reduce the Company's Fixed Charge Coverage Ratio amount available for Restricted Payments under the four full fiscal quarters ending immediately prior first paragraph of this covenant. All such outstanding Investments shall be deemed to constitute Investments in an amount equal to the date fair market value of such issuance would have been at least 1.25 to 1, determined on a PRO FORMA basis as if such issuance was at the beginning of such four-quarter period, and Investments at the time of issuance, such preferred stock is designated designation. Such designation shall only be permitted if such Restricted Payment would be permitted at such time 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 on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall be determined by the Board of Directors whose resolution with respect thereto shall be delivered to the Trustee, such determination to be Qualified Preferred Stock; and (v) based upon an Investment in any Unrestricted Subsidiary either in exchange for Equity Interests opinion or appraisal issued by an accounting, appraisal or investment banking firm of the Company (other national standing if such fair market value exceeds $1.0 million. Not later than Redeemable Stock) or out of the proceeds of the sale (other than to a Restricted Subsidiary) of Equity Interests of the Company (other than Redeemable Stock) received by the Company not more than 12 months prior to the date of such Investment making any Restricted Payment (to the extent such sale of Equity Interests has not previously been included in any calculation under clause (c) above for purposes of permitting a Restricted Payment); PROVIDED that, in the cases of clauses (iii) (other than except with respect to the repurchase of Equity Interests with insurance proceedsa payment on a Management Note, for which 15 days notice shall be required), (iv) and (v), no Default or Event of Default the Company shall have occurred and be continuing at deliver to the -44- time of Trustee an Officers' Certificate stating that such Restricted Payment is permitted and setting forth the basis upon which the calculations required by this Section 4.07 were computed, together with a copy of any fairness opinion or shall occur immediately after giving effect thereto. In determining the aggregate amount expended for Restricted Payments in accordance with clause (c) above, (1) no amounts expended under clause (iii) (only with respect to the use of insurance proceeds to repurchase Equity Interests) of the immediately preceding paragraph shall be included and (2) 100% of the amounts expended under clauses (i), (ii), (iii) (other than with respect to the repurchase of Equity Interests with insurance proceeds), (iv) and (v) of the immediately preceding paragraph shall be includedappraisal required by this Indenture.

million. The foregoing provisions will shall not prohibit (i) the payment of any dividend within 60 days after the date of declaration thereof, if at the said date of declaration thereof such payment would have complied with the provisions of this Indenture; (ii)(Aii) the retirement redemption, repurchase, retirement, defeasance or other acquisition of any Pari Passu Indebtedness or subordinated Indebtedness or Equity Interests of the Company (the "Retired Equity Interests") either in exchange for for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Restricted SubsidiarySubsidiary of the Company) of of, other Equity Interests of or a capital contribution to the Company (the "Refunding Equity Interests") other than any Redeemable Stock and (B) if Disqualified Stock); provided that the Retired Equity Interest consti- tuted Qualified Preferred Stock, the declaration and payment of dividends on the Refunding Equity Interest in an aggregate amount per year no greater than the aggregate amount of dividends per year any such net cash proceeds that was declarable and payable on are utilized for any such Retired Equity Interest immediately prior to such retirement to redemption, repurchase, retirement, defeasance or other acquisition shall be excluded from clause (c) (ii) of the extent such Refunding Equity Interest is designated to be Qualified Preferred Stock by the Company at the time of its issuancepreceding paragraph; (iii) the defeasance, redemption, repurchase or other acquisition of Pari Passu Indebtedness or subordinated Indebtedness made by an exchange for, or with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness; (iv) the payment of any dividend by a Restricted Subsidiary of the Company to the holders of its Equity Interests on a pro rata basis; (v) the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company issued to employees, officers or directors of the Company and its Subsidiaries pursuant to agreements containing provisions for the repurchase of such Equity Interests upon death, disability or termination of employment or directorship of such Persons, or in accordance with the Company's xxxxxxx xxxxxxx policy, not to exceed $5.0 million in any fiscal year PLUS the aggregate cash proceeds from any reissuance during such fiscal year of Equity Interests by the Company to employees, officers or directors of the Company and its Subsidiaries PLUS the aggregate cash proceeds from any payments on life insurance policies with respect to any employees, officers or directors of the Company and its Subsidiaries which proceeds are used to purchase the Equity Interests Subsidiary of the Company held by any such employees, officers or directors; (iv) the declaration and payment of dividends to holders of any class or series of the Company's preferred stock issued after the Issue Date (including, without limitation, the declaration and payment of dividends on Refunding Equity Interests in excess of the dividends declarable and payable thereon Management Investor pursuant to clause (ii) any management equity subscription agreement or stock option agreement in effect as of this paragraph); PROVIDED that at the time of such issuance the Company's Fixed Charge Coverage Ratio for the four full fiscal quarters ending immediately prior to the date of this Indenture; provided that the aggregate price paid for all such issuance would have been at least 1.25 to 1repurchased, determined on a PRO FORMA basis as if such issuance was at the beginning of such fourredeemed, acquired or retired Equity Interests shall not exceed $750,000 in any twelve-quarter period, and at the time of issuance, such preferred stock is designated month period (which amount shall be increased by the Company to be Qualified Preferred Stock; and (v) an Investment in amount of any Unrestricted Subsidiary either in exchange for net cash proceeds received from the sale after the date of this Indenture of Equity Interests of the Company (other than Redeemable Disqualified Stock) or out of the proceeds of the sale (other than to a Restricted Subsidiary) of Equity Interests of the Company (other than Redeemable Stock) received by the Company any Management Investor that have not more than 12 months prior otherwise been applied to the date payment of such Investment (x) Restricted Payments pursuant to the extent such sale terms of Equity Interests has not previously been included in any calculation under clause (c) above of the preceding paragraph or (y) the aggregate price for purposes of permitting a Restricted Payment); PROVIDED thatall repurchased, in the cases of clauses (iii) (other than with respect redeemed, acquired or retired Equity Interests pursuant to the repurchase terms of Equity Interests with insurance proceeds), this clause (ivv) exceeding $750,000 in any twelve month period) and (v), no Default or Event of Default shall have occurred and be continuing immediately after such transaction; and (vi) the purchase of Equity Interests in the Company pursuant to the Merger Agreement. 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 operated on the date of this Indenture by any Guarantor existing on the date of this Indenture be transferred to or held by 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 -44- time of such Restricted Payment or designation and shall occur immediately after giving effect thereto. In determining reduce the aggregate amount expended available for Restricted Payments under the first paragraph of this Section 4.07. All such outstanding Investments shall be deemed to constitute Investments in accordance with clause (c) above, (1) no amounts expended under clause (iii) (only with respect an amount equal to the use fair market value of insurance proceeds to repurchase Equity Interests) 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 immediately preceding paragraph shall be included and (2) 100% definition of the amounts expended under clauses (i), (ii), (iii) an Unrestricted Subsidiary. The amount of all Restricted Payments (other than with respect cash) shall be the fair market value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to the repurchase Restricted Payment. The fair market value of Equity Interests with insurance proceeds), (iv) and (v) any non-cash Restricted Payment shall be determined in good faith by the Board of Directors of the immediately preceding paragraph Company and evidenced by a Board Resolution, such determination to be based upon an opinion or appraisal issued by an accounting, appraisal or investment banking firm of national standing if such fair market value exceeds $3.0 million. Not later than the date of making any Restricted Payment, the Company shall be includeddeliver to the Trustee an Officers' Certificate stating that such Restricted Payment is permitted and setting forth the basis upon which the calculations required by this Section 4.07 were computed, together with a copy of any fairness opinion or appraisal required by this Indenture.

million. The foregoing provisions will not prohibit any of the following: (ia) the payment of any dividend within 60 days after the date of declaration thereof, if at the said date of declaration thereof such payment would have complied with the provisions of this Indenture; (ii)(Ab) the retirement redemption, repurchase, retirement, defeasance or other acquisition of any subordinated Indebtedness or Equity Interests of the Company (the "Retired Equity Interests") either in exchange for for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Restricted SubsidiarySubsidiary of the Company) of of, other Equity Interests of the Company (the "Refunding Equity Interests") other than any Redeemable Stock and Disqualified Stock), provided that the amount of any such net cash proceeds that are utilized for any such redemption, repurchase, retirement, defeasance or other acquisition shall be excluded from clause (Biii)(B) if of the Retired Equity Interest consti- tuted Qualified Preferred Stockpreceding paragraph; (c) the defeasance, redemption, repurchase, retirement or other acquisition of subordinated Indebtedness with the declaration and net cash proceeds from an incurrence of, or in exchange for, Permitted Refinancing Indebtedness; (d) the payment of dividends on any dividend or distribution by a Restricted Subsidiary of the Refunding Equity Interest in an aggregate amount per year no greater than the aggregate amount of dividends per year that was declarable and payable on such Retired Equity Interest immediately prior to such retirement Company to the extent such Refunding Equity Interest is designated to be Qualified Preferred Stock by the Company at the time holders of its issuancecommon Equity Interests on a pro rata basis; (iiie) so long as no Default or Event of Default shall have occurred and be continuing, the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company issued to employees, officers or directors held by any employee of the Company and or any of its Subsidiaries pursuant to agreements containing provisions Restricted Subsidiaries, provided that the aggregate price paid for the repurchase of all such repurchased, redeemed, acquired or retired Equity Interests upon death, disability or termination of employment or directorship of such Persons, or in accordance with the Company's xxxxxxx xxxxxxx policy, shall not to exceed $5.0 1.0 million in any fiscal year PLUS the aggregate cash proceeds from any reissuance during such fiscal year of Equity Interests by the Company to employees, officers or directors of the Company and its Subsidiaries PLUS the aggregate cash proceeds from any payments on life insurance policies with respect to any employees, officers or directors of the Company and its Subsidiaries which proceeds are used to purchase the Equity Interests of the Company held by any such employees, officers or directors; (iv) the declaration and payment of dividends to holders of any class or series of the Company's preferred stock issued after the Issue Date (including, without limitation, the declaration and payment of dividends on Refunding Equity Interests in excess of the dividends declarable and payable thereon pursuant to clause (ii) of this paragraph); PROVIDED that at the time of such issuance the Company's Fixed Charge Coverage Ratio for the four full fiscal quarters ending immediately prior to the date of such issuance would have been at least 1.25 to 1, determined on a PRO FORMA basis as if such issuance was at the beginning of such four-quarter period, and at the time of issuance, such preferred stock is designated by the Company to be Qualified Preferred Stockcalendar year; and (vf) an Investment in any Unrestricted Subsidiary either in exchange for Equity Interests of the Company (other than Redeemable Stock) or out of the proceeds of the sale (other than to a Restricted Subsidiary) acquisition of Equity Interests of the Company (other than Redeemable Stock) received in connection with the exercise of stock options or stock appreciation rights by way of cashless exercise or in connection with the Company not more than 12 months prior to the date satisfaction of such Investment (to the extent such sale of Equity Interests has not previously been included in any calculation under clause (c) above for purposes of permitting a Restricted Payment); PROVIDED that, in the cases of clauses (iii) (other than with respect to the repurchase of Equity Interests with insurance proceeds), (iv) and (v), no Default or Event of Default shall have occurred and be continuing at the -44- time of such Restricted Payment or shall occur immediately after giving effect theretowithholding tax obligations. In determining the aggregate amount expended for of Restricted Payments made subsequent to the Issue Date in accordance with clause (c) above, (1) no amounts expended under clause (iii) (only with respect to the use of insurance proceeds to repurchase Equity Interests) of the immediately preceding paragraph, amounts expended pursuant to clauses (b), (c), (d) and (f) of this paragraph shall be excluded from the calculation and amounts expended pursuant to clauses (a) and (e) of this paragraph shall be included in the calculation. 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 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. All such outstanding Investments will be deemed to constitute Investments in an amount equal to the greater of (a) the net book value of such Investments at the time of such designation and (2b) 100% the 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. The Board of Directors of the amounts expended 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 (a) such Indebtedness is permitted under clauses 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 (i), (ii), (iiib) no Default or Event of Default would be in existence following such designation. Any designation of a Subsidiary as an Unrestricted Subsidiary shall be evidenced to the Trustee by filing with the Trustee a certified copy of a resolution of the Board of Directors giving effect to such designation and an Officers' Certificate certifying that such designation complied with the terms of the definition of Unrestricted Subsidiary set forth in this Indenture and with this Section 4.07. The amount of all Restricted Payments (other than cash) shall be the fair market value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall be determined in the manner contemplated by the definition of the term "fair market value," and the results of such determination shall be evidenced by an Officers' Certificate delivered to the Trustee. Not later than the date of making any Restricted Payment, the Company shall deliver to the Trustee an Officers' Certificate stating that such Restricted Payment is permitted and setting forth the basis upon which the calculations required by this Section 4.07 were computed; provided, however, with respect to any planned purchase or redemption by the repurchase Company of its Equity Interests, the Company may, in advance of any such purchase or redemption, deliver to the Trustee a single Officers' Certificate that otherwise complies with requirements set forth above stating (i) the maximum aggregate amount of Equity Interests with insurance proceeds), (iv) to be purchased or redeemed and (vii) of the immediately preceding paragraph shall be includedperiod over which such purchases or redemptions will occur.

million. The foregoing provisions will not prohibit (ia) the payment of any dividend within 60 days after the date of declaration thereof, if at the said date of declaration thereof such payment would have complied with the provisions of this Indenture, the Series A/B Indenture and the Series C/D Indenture; (ii)(Ab) the retirement redemption, repurchase, retirement, defeasance or other acquisition of any subordinated Indebtedness or Equity Interests of the Company (the "Retired Equity Interests") either in exchange for for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Restricted SubsidiarySubsidiary of the Company) of of, other Equity Interests of the Company (the "Refunding Equity Interests") other than any Redeemable Stock and Disqualified Stock), provided that the amount of any such net cash proceeds that are utilized for any such redemption, repurchase, retirement, defeasance or other acquisition shall be excluded from clause (Biii)(B) if of the Retired Equity Interest consti- tuted Qualified Preferred Stockpreceding paragraph; (c) the defeasance, redemption, repurchase, retirement or other acquisition of subordinated Indebtedness with the declaration and net cash proceeds from an incurrence of, or in exchange for, Permitted Refinancing Indebtedness; (d) the payment of dividends on any dividend or distribution by a Restricted Subsidiary of the Refunding Equity Interest in an aggregate amount per year no greater than the aggregate amount of dividends per year that was declarable and payable on such Retired Equity Interest immediately prior to such retirement Company to the extent such Refunding Equity Interest is designated to be Qualified Preferred Stock by the Company at the time of its issuanceor any Wholly Owned Restricted Subsidiary; (iiie) so long as no Default or Event of Default shall have occurred and be continuing, the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company issued to employees, officers or directors of the Company and its Subsidiaries pursuant to agreements containing provisions for the repurchase of such Equity Interests upon death, disability or termination of employment or directorship of such Persons, or in accordance with the Company's xxxxxxx xxxxxxx policy, not to exceed $5.0 million in any fiscal year PLUS the aggregate cash proceeds from any reissuance during such fiscal year of Equity Interests by the Company to employees, officers or directors of the Company and its Subsidiaries PLUS the aggregate cash proceeds from any payments on life insurance policies with respect to any employees, officers or directors of the Company and its Subsidiaries which proceeds are used to purchase the Equity Interests of the Company held by any such employees, officers or directors; (iv) the declaration and payment of dividends to holders of any class or series employee of the Company's preferred stock issued after or any of its Restricted Subsidiaries, provided that the Issue Date (includingaggregate price paid for all such repurchased, without limitationredeemed, the declaration and payment of dividends on Refunding acquired or retired Equity Interests shall not exceed $500,000 in excess of the dividends declarable and payable thereon pursuant to clause (ii) of this paragraph); PROVIDED that at the time of such issuance the Company's Fixed Charge Coverage Ratio for the four full fiscal quarters ending immediately prior to the date of such issuance would have been at least 1.25 to 1, determined on a PRO FORMA basis as if such issuance was at the beginning of such four-quarter period, and at the time of issuance, such preferred stock is designated by the Company to be Qualified Preferred Stockany calendar year; and (vf) an Investment in any Unrestricted Subsidiary either in exchange for Equity Interests of the Company (other than Redeemable Stock) or out of the proceeds of the sale (other than to a Restricted Subsidiary) acquisition of Equity Interests of the Company (other than Redeemable Stock) received in connection with the exercise of stock options or stock appreciation rights by way of cashless exercise or in connection with the satisfaction of withholding tax obligations. 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 Company not more than 12 months prior to the date of such Investment 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 sale designation. All such outstanding Investments will be deemed to constitute Investments in an amount equal to the greater of Equity Interests has not previously been included in (a) the net book value of such Investments at the time of such designation and (b) the 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. The Board of Directors of the Company may at any calculation under clause (c) above for purposes of permitting time designate any Unrestricted Subsidiary to be a Restricted Payment); PROVIDED thatSubsidiary, in provided that such designation shall be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of the cases Company of clauses any outstanding Indebtedness of such Unrestricted Subsidiary and such designation shall only be permitted if (iiia) (other than with respect to such Indebtedness is permitted under Section 4.09 hereof, calculated on a pro forma basis as if such designation had occurred at the repurchase beginning of Equity Interests with insurance proceeds)the four-quarter reference period, (iv) and (v), b) no Default or Event of Default would be in existence following such designation. Any designation of a Subsidiary as an Unrestricted Subsidiary shall have occurred be evidenced to the Trustee by filing with the Trustee a certified copy of a resolution of the Board of Directors giving effect to such designation and an Officers' Certificate certifying that such designation complied with the terms of the definition of Unrestricted Subsidiary set forth in this Indenture and with this Section 4.07. The amount of all Restricted Payments (other than cash) shall be continuing at the -44- time fair market value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall be determined in the manner contemplated by the definition of the term "fair market value," and the results of such determination shall be evidenced by an Officers' Certificate delivered to the Trustee. Not later than the date of making any Restricted Payment, the Company shall deliver to the Trustee an Officers' Certificate stating that such Restricted Payment or shall occur immediately after giving effect thereto. In determining is permitted and setting forth the aggregate amount expended for Restricted Payments in accordance with clause (c) above, (1) no amounts expended under clause (iii) (only with respect to basis upon which the use of insurance proceeds to repurchase Equity Interests) of the immediately preceding paragraph shall be included and (2) 100% of the amounts expended under clauses (i), (ii), (iii) (other than with respect to the repurchase of Equity Interests with insurance proceeds), (iv) and (v) of the immediately preceding paragraph shall be includedcalculations required by this Section 4.07 were computed.

million. The foregoing provisions will not prohibit any of the following: (ia) the payment of any dividend within 60 days after the date of declaration thereof, if at the said date of declaration thereof such payment would have complied with the provisions of this Indenture; (ii)(Ab) the retirement redemption, repurchase, retirement, defeasance or other acquisition of any subordinated Indebtedness or Equity Interests of the Company (the "Retired Equity Interests") either in exchange for for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Restricted SubsidiarySubsidiary of the Company) of of, other Equity Interests of the Company (the "Refunding Equity Interests") other than any Redeemable Stock and Disqualified Stock), provided that the amount of any such net cash proceeds that are utilized for any such redemption, repurchase, retirement, defeasance or other acquisition shall be excluded from clause (Biii)(B) if of the Retired Equity Interest consti- tuted Qualified Preferred Stockpreceding paragraph; (c) the defeasance, redemption, repurchase, retirement or other acquisition of subordinated Indebtedness with the declaration and net cash proceeds from an incurrence of, or in exchange for, Permitted Refinancing Indebtedness; (d) the payment of dividends on any dividend or distribution by a Restricted Subsidiary of the Refunding Equity Interest in an aggregate amount per year no greater than the aggregate amount of dividends per year that was declarable and payable on such Retired Equity Interest immediately prior to such retirement Company to the extent such Refunding Equity Interest is designated to be Qualified Preferred Stock by Company or any Wholly Owned Restricted Subsidiary of the Company at the time of its issuanceCompany; (iiie) so long as no Default or Event of Default shall have occurred and be continuing, the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company issued to employees, officers or directors of the Company and its Subsidiaries pursuant to agreements containing provisions for the repurchase of such Equity Interests upon death, disability or termination of employment or directorship of such Persons, or in accordance with the Company's xxxxxxx xxxxxxx policy, not to exceed $5.0 million in any fiscal year PLUS the aggregate cash proceeds from any reissuance during such fiscal year of Equity Interests by the Company to employees, officers or directors of the Company and its Subsidiaries PLUS the aggregate cash proceeds from any payments on life insurance policies with respect to any employees, officers or directors of the Company and its Subsidiaries which proceeds are used to purchase the Equity Interests of the Company held by any such employees, officers or directors; (iv) the declaration and payment of dividends to holders of any class or series employee of the Company's preferred stock issued after or any of its Restricted Subsidiaries, provided that the Issue Date (includingaggregate price paid for all such repurchased, without limitationredeemed, the declaration and payment of dividends on Refunding acquired or retired Equity Interests shall not exceed $500,000 (or the equivalent thereof in excess of the dividends declarable and payable thereon pursuant to clause (iiany other currency or currency unit) of this paragraph); PROVIDED that at the time of such issuance the Company's Fixed Charge Coverage Ratio for the four full fiscal quarters ending immediately prior to the date of such issuance would have been at least 1.25 to 1, determined on a PRO FORMA basis as if such issuance was at the beginning of such four-quarter period, and at the time of issuance, such preferred stock is designated by the Company to be Qualified Preferred Stockin any calendar year; and (vf) an Investment in any Unrestricted Subsidiary either in exchange for Equity Interests of the Company (other than Redeemable Stock) or out of the proceeds of the sale (other than to a Restricted Subsidiary) acquisition of Equity Interests of the Company (other than Redeemable Stock) received in connection with the exercise of stock options or stock appreciation rights by way of cashless exercise or in connection with the satisfaction of withholding tax obligations. 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 Company not more than 12 months prior to the date of such Investment 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 sale designation. All such outstanding Investments will be deemed to constitute Investments in an amount equal to the fair market value of Equity Interests has not previously been included in 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. The Board of Directors of the Company may at any calculation under clause (c) above for purposes of permitting time designate any Unrestricted Subsidiary to be a Restricted Payment); PROVIDED thatSubsidiary, in provided that such designation shall be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of the cases Company of clauses any outstanding Indebtedness of such Unrestricted Subsidiary and such designation shall only be permitted if (iiia) (other than with respect to such Indebtedness is permitted under Section 4.09 hereof, calculated on a pro forma basis as if such designation had occurred at the repurchase beginning of Equity Interests with insurance proceeds)the four-quarter reference period, (iv) and (v), b) no Default or Event of Default would be in existence following such designation. Any designation of a Subsidiary as an Unrestricted Subsidiary shall have occurred be evidenced to the Trustee by filing with the Trustee a certified copy of a resolution of the Board of Directors giving effect to such designation and an Officers' Certificate certifying that such designation complied with the terms of the definition of Unrestricted Subsidiary set forth in this Indenture and with this Section 4.07. The amount of all Restricted Payments (other than cash) shall be continuing at the -44- time fair market value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall be determined in the manner contemplated by the definition of the term "fair market value," and the results of such determination shall be evidenced by an Officers' Certificate delivered to the Trustee. Not later than five Business Days following the date of making any Restricted Payment, the Company shall deliver to the Trustee an Officers' Certificate stating that such Restricted Payment or shall occur immediately after giving effect thereto. In determining is permitted and setting forth the aggregate amount expended for Restricted Payments in accordance with clause (c) above, (1) no amounts expended under clause (iii) (only with respect to basis upon which the use of insurance proceeds to repurchase Equity Interests) of the immediately preceding paragraph shall be included and (2) 100% of the amounts expended under clauses (i), (ii), (iii) (other than with respect to the repurchase of Equity Interests with insurance proceeds), (iv) and (v) of the immediately preceding paragraph shall be includedcalculations required by this Section 4.07 were computed.

million. The foregoing preceding provisions will shall not prohibit prohibit: (i) the payment of any dividend within 60 days after the date of declaration thereof, if at the date of declaration thereof declaration, such payment would have complied with the provisions of this Indenture; (ii)(Aii) the retirement redemption, repurchase, retirement, defeasance or other acquisition of any subordinated Indebtedness of the Company or any Guarantor or of any Equity Interests of the Company (the "Retired Equity Interests") either in exchange for for, or out of the net cash proceeds of the substantially concurrent sale sale, issuance of or contribution for, (other than to a Restricted Subsidiary) Subsidiary of other the Company), Equity Interests of the Company (the "Refunding Equity Interests") other than any Redeemable Stock and (B) if Disqualified Stock); provided that the Retired Equity Interest consti- tuted Qualified Preferred Stock, the declaration and payment of dividends on the Refunding Equity Interest in an aggregate amount per year no greater than the aggregate amount of dividends per year any such net cash proceeds that was declarable and payable on are utilized for any such Retired Equity Interest immediately prior to such retirement to payment, redemption, repurchase, retirement, defeasance, other acquisition or dividend or distribution shall be excluded from clause (c) of the extent such Refunding Equity Interest is designated to be Qualified Preferred Stock by the Company at the time of its issuancepreceding paragraph; (iii) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the defeasance, redemption, repurchase or other acquisition of subordinated Indebtedness with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness; (iv) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the payment of any dividend or distribution by a Restricted Subsidiary of the Company to the holders of its common Equity Interests on a pro rata basis; (v) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company issued to employees, officers or directors of the Company and its Subsidiaries pursuant to agreements containing provisions for the repurchase of such Equity Interests upon death, disability or termination of employment or directorship of such Persons, or in accordance with the Company's xxxxxxx xxxxxxx policy, not to exceed $5.0 million in any fiscal year PLUS the aggregate cash proceeds from any reissuance during such fiscal year of Equity Interests by the Company to employees, officers or directors of the Company and its Subsidiaries PLUS the aggregate cash proceeds from any payments on life insurance policies with respect to any employees, officers or directors of the Company and its Subsidiaries which proceeds are used to purchase the Equity Interests Restricted Subsidiary of the Company held by any such employeespresent, officers former or directors; (iv) the declaration and payment of dividends to holders of any class future employee, director or series Consultant of the Company's preferred stock issued after the Issue Date (including, without limitation, the declaration and payment or any of dividends on Refunding Equity Interests in excess its Restricted Subsidiaries or any parent of the dividends declarable and payable thereon Company) pursuant to clause (ii) any management equity subscription agreement or stock option agreement in effect as of this paragraph); PROVIDED that at the time of such issuance the Company's Fixed Charge Coverage Ratio for the four full fiscal quarters ending immediately prior to the date of this Indenture or any other similar agreement; provided that the aggregate price paid for all such issuance would have been at least 1.25 repurchased, redeemed, acquired or retired Equity Interests shall not exceed $2.0 million in any twelve-month period (with unused amounts in any calendar year being carried over to 1succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $4.0 million in any calendar year); provided that such amount in any calendar year may be increased by an amount not to exceed (A) the cash proceeds from the sale of Equity Interests of the Company, determined on a PRO FORMA basis as if such issuance was at any parent of the beginning Company or any of its Restricted Subsidiaries to present, former or future directors, Consultants or employees of the Company, its Restricted Subsidiaries or any parent of the Company that occurred since February 20, 2001 (to the extent the cash proceeds from the sale of such four-quarter periodEquity Interest have not otherwise been included in clause (c) of the immediately preceding paragraph), and at plus (B) the time cash proceeds of issuance, such preferred stock is designated key man life insurance policies received by the Company, its Restricted Subsidiaries or any parent of the Company to be Qualified Preferred Stocksince February 20, 2001; and (v) an Investment in provided that cancellation of Indebtedness owing to the Company from present, former or future directors, Consultants, or employees of the Company, any Unrestricted Subsidiary either in exchange for of its Restricted Subsidiaries or any parent of the Company the proceeds of which were used solely to purchase Equity Interests of the Company (other than Redeemable Stock) or out of the proceeds of the sale (other than will not be deemed to constitute a Restricted Subsidiary) Payment so long as the value of such Equity Interests of the Company (other than Redeemable Stock) received by the Company issued did not more than 12 months prior to the date of such Investment (to the extent such sale of Equity Interests has not previously been included in any calculation under increase clause (c) above for purposes of permitting a Restricted Payment)the preceding paragraph; PROVIDED that, in the cases of clauses (iiivi) (other than with respect to the repurchase of Equity Interests with insurance proceeds), (iv) and (v), so long as no Default or Event of Default shall have has occurred and is continuing or would be continuing caused thereby, Restricted Investments made after the date of this Indenture having an aggregate Fair Market Value, taken together with all other Investments made pursuant to this clause (vi) and, without duplication, Investments made pursuant to the this clause (vi) of the Existing Indenture that are at that time outstanding (without giving effect to any write-up, write-off or write-down), not to exceed 5% of the Company's Consolidated Tangible Assets as of the end of the fiscal quarter most recently completed (with Fair Market Value of each Investment being measured at the -44- time made and without giving effect to subsequent changes in value); (vii) repurchases of Equity Interests deemed to occur upon exercise of stock options if such Equity Interests represent a portion of the exercise price of such options; (viii) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the payment of dividends on the Company's Capital Stock of up to 6% per annum of the net proceeds received by the Company in its March, 2002 initial public offering; (ix) Investments in Unrestricted Subsidiaries that are made with Excluded Contributions; (x) non-cash Investments in Unrestricted Subsidiaries in the form of administrative, financial, accounting, management, or other similar services (together with a non-cash allocation of corporate overhead), in each case in the ordinary course of business; (xi) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the payment of dividends on Disqualified Stock which is issued in accordance with Section 4.09 hereof; and (xii) transactions contemplated by the offering memorandum of even date herewith in connection with the issuance of the Notes under the caption "Use of Proceeds". The amount of all Restricted Payments (other than cash) shall be the Fair Market Value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued to or by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment; provided that, notwithstanding the other provisions of this Indenture, with respect to this covenant, an MAI appraiser, accounting firm or valuation firm with experience in such valuation and not affiliated with the Company shall be required if the fair market value of such Restricted Payment or Restricted Payments for any series of transactions exceeds $2.0 million. At least quarterly, the Company shall occur immediately after giving effect theretodeliver to the Trustee an Officers' Certificate stating that all Restricted Payments during such quarter were permitted and setting forth the basis upon which the calculations required by this Section 4.07 were computed, together with a copy of any fairness opinion or appraisal required by this Indenture. If a Guarantee constituted a Restricted Investment at the time made, then the payment under such Guarantee shall not constitute an additional Restricted Investment. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default or an Event of Default. In determining the aggregate event of any such designation, all outstanding Investments owned by the Company and its Restricted Subsidiaries in the Subsidiary so designated shall be deemed to be an Investment made as of the time of such designation and shall reduce the amount expended available for Restricted Payments under the first paragraph of this Section 4.07 or Permitted Investments, as applicable. All such outstanding Investments shall be deemed to constitute Restricted Investments in accordance an amount equal to the 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. The Board of Directors may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if such redesignation would not cause a Default or an Event of Default. Any such designation by the Board of Directors shall be evidenced to the Trustee by filing with clause the Trustee a certified copy of the board resolution giving effect to such designation and an Officers' Certificate certifying that such designation complied with the foregoing conditions and was permitted by this Section 4.07. If, at any time, any Unrestricted Subsidiary would fail to meet the definition of 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 (cand, 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 Section 4.09 hereof). 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 (a) abovesuch 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 (1b) no amounts expended under clause (iii) (only with respect to the use Default or Event of insurance proceeds to repurchase Equity Interests) of the immediately preceding paragraph shall Default would be included and (2) 100% of the amounts expended under clauses (i), (ii), (iii) (other than with respect to the repurchase of Equity Interests with insurance proceeds), (iv) and (v) of the immediately preceding paragraph shall be includedin existence following such designation.