Common use of Incurrence of Indebtedness and Issuance of Disqualified Stock Clause in Contracts

Incurrence of Indebtedness and Issuance of Disqualified Stock. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwise, with respect to (collectively, “incur” or an “incurrence”) any Indebtedness (including, without limitation, any Acquired Indebtedness) and that the Company will not issue any Disqualified Stock and will not permit any of its Restricted Subsidiaries to issue any shares of preferred stock or Disqualified Stock; provided, however, that the Company or any Guarantor may incur Indebtedness or issue Disqualified Stock, and any Restricted Subsidiary may incur Acquired Indebtedness, in each case if the Consolidated Interest Coverage Ratio for the Company’s most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date on which such additional Indebtedness is incurred or such Disqualified Stock is issued would have been at least 3.00 to 1.00, determined on a pro forma basis (including a pro forma application of the net proceeds therefrom), as if the additional Indebtedness or Disqualified Stock had been issued or incurred, as the case may be, at the beginning of such four-quarter period. The foregoing provisions shall not apply to the incurrence by the Company or any of its Restricted Subsidiaries of any of the following Indebtedness:

Incurrence of Indebtedness and Issuance of Disqualified Stock. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwise, with respect to (collectively, “incur” or an “incurrence”) any Indebtedness (includingincluding Acquired Debt), without limitation, any Acquired Indebtedness) and that the Company will not issue any Disqualified Stock and will not permit any of its Restricted Subsidiaries to issue any shares of preferred stock or Disqualified Stockstock; provided, however, that the Company or any Guarantor may incur Indebtedness or issue Disqualified Stock, and any Restricted Subsidiary may incur Indebtedness (including Acquired IndebtednessDebt) or issue Disqualified Stock or preferred stock, in each case if the Consolidated Interest Fixed Charge Coverage Ratio for the Company’s most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date on which such additional Indebtedness is incurred or such Disqualified Stock or such preferred stock is issued issued, as the case may be, would have been at least 3.00 2.0 to 1.001.0, determined on a pro forma basis (including a pro forma application of the net proceeds therefrom), as if the additional Indebtedness had been incurred or the Disqualified Stock or the preferred stock had been issued or incurredissued, as the case may be, at the beginning of such four-quarter period. The foregoing provisions ; provided, further, that the aggregate principal amount of Indebtedness incurred by Restricted Subsidiaries that are not Subsidiary Guarantors pursuant to this paragraph shall not apply to the incurrence by the Company or any of its Restricted Subsidiaries of any of the following Indebtedness:exceed $10.0 million.

Incurrence of Indebtedness and Issuance of Disqualified Stock. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwise, with respect to (collectively, “incur” or an “incurrence”) any Indebtedness (including, without limitation, any Acquired Indebtedness) and that the Company will shall not issue any Disqualified Stock and will shall not permit any of its Restricted Subsidiaries to issue any shares of preferred stock or Disqualified Stock; provided, however, that the Company or any Guarantor and its Restricted Subsidiaries may incur Indebtedness or Indebtedness, and the Company may issue Disqualified Stock, and any Restricted Subsidiary may incur Acquired Indebtedness, in each case if the Consolidated Interest Coverage Ratio for the Company’s most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date on which such additional Indebtedness is incurred or such Disqualified Stock is issued would have been at least 3.00 2.0 to 1.001.0 at the time such additional Indebtedness is incurred or such Disqualified Stock is issued (such time being called the “Incurrence Time”), in each case as determined on a pro forma basis (including a pro forma application of the net proceeds therefrom), as if the additional Indebtedness or Disqualified Stock had been issued or incurred, as the case may be, at the beginning of such four-quarter period. The foregoing provisions shall not apply to the incurrence by the Company or any of its Restricted Subsidiaries of any of the following Indebtedness:

Incurrence of Indebtedness and Issuance of Disqualified Stock. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwise, with respect to (collectively, “incur” or an “incurrence”) any Indebtedness (includingincluding Acquired Debt), without limitationother than Permitted Debt, any Acquired Indebtedness) and that the Company will shall not issue any Disqualified Stock issue, and will shall not permit any of its Restricted Subsidiaries to issue issue, any shares of preferred stock or Disqualified Stock; provided, however, that the Company or any Guarantor may incur Indebtedness or issue Disqualified Stock, and any Restricted Subsidiary may incur Indebtedness (including Acquired Indebtedness, in each case Debt) or issue shares of Disqualified Stock if the Consolidated Interest Company’s Fixed Charge Coverage Ratio for the Company’s most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date on which such additional Indebtedness is incurred or such Disqualified Stock is issued would have been at least 3.00 2 to 1.001, determined on a pro forma basis (including a pro forma application of the net proceeds therefrom), as if the such additional Indebtedness had been incurred, or such Disqualified Stock had been issued or incurredissued, as the case may be, at the beginning of such four-quarter period. The foregoing provisions shall not apply to the incurrence by the Company or any of its Restricted Subsidiaries of any of the following Indebtedness:.

Incurrence of Indebtedness and Issuance of Disqualified Stock. The Company Partnership shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwise, with respect to (collectively, “incur” or an “incurrence”) any Indebtedness (includingincluding Acquired Debt), without limitation, any Acquired Indebtedness) and that the Company will Partnership shall not issue any Disqualified Stock and the Partnership will not permit any of its Restricted Subsidiaries to issue any shares of preferred stock or Disqualified Preferred Stock; provided, however, that if no Default or Event of Default shall have occurred and be continuing at the Company time or any Guarantor as a consequence of the incurrence of this Indebtedness, the Partnership may incur Indebtedness (including Acquired Debt) or the Partnership may issue shares of Disqualified Stock, and any Restricted Subsidiary may incur Acquired Indebtedness, in each case if (x) the Consolidated Interest Fixed Charge Coverage Ratio for the CompanyPartnership’s most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date on which such that additional Indebtedness is incurred or such Disqualified Stock is issued incurred, would have been at least 3.00 2.0 to 1.001, determined on a pro pro-forma basis (including a pro pro-forma application of the net proceeds therefrom), as if the additional Indebtedness had been incurred or the Disqualified Stock had been issued or incurredissued, as the case may be, at the beginning of such the four-quarter periodperiod and (y) no Default or Event of Default shall have occurred and be continuing at the time of or would occur after giving pro forma effect to such incurrence or issuance and the application of proceeds therefrom. The foregoing provisions first paragraph of this Section 4.09 shall not apply to prohibit the incurrence by the Company or any of its Restricted Subsidiaries of any of the following Indebtedness:(collectively, “Permitted Debt”):

Incurrence of Indebtedness and Issuance of Disqualified Stock. The Company shall will not, and shall will not permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwise, with respect to (collectively, “incur” or an “incurrence”) any Indebtedness (includingincluding Acquired Debt), without limitationother than Permitted Debt, any Acquired Indebtedness) and that the Company will shall not issue any Disqualified Stock Stock, and will shall not permit any of its Restricted Subsidiaries to issue any shares of preferred stock or any Disqualified Stock; provided, however, that the Company or any Guarantor may incur Indebtedness (including Acquired Debt) or issue shares of Disqualified Stock, Stock and any Restricted Subsidiary Guarantor may incur Acquired Indebtedness, in each case issue preferred stock if the Consolidated Interest Company’s Fixed Charge Coverage Ratio for the Company’s most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date on which such additional Indebtedness is incurred or such Disqualified Stock or preferred stock is issued would have been at least 3.00 2.0 to 1.001.0, determined on a pro forma basis (including a pro forma application of the net proceeds therefrom), as if the such additional Indebtedness had been incurred, or such Disqualified Stock or preferred stock had been issued or incurredissued, as the case may be, at the beginning of such four-quarter period. The foregoing provisions of the first paragraph of this Section 4.09 shall not apply to the incurrence by the Company or any of its Restricted Subsidiaries of any of the following Indebtedness:items of Indebtedness (collectively, “Permitted Debt”):

Incurrence of Indebtedness and Issuance of Disqualified Stock. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwise, with respect to (collectively, “incur” or an “incurrence”) any Indebtedness (including, without limitation, any Acquired Indebtedness) and that the Company will not issue any Disqualified Stock and will not permit any of its Restricted Subsidiaries to issue any shares of preferred stock or Disqualified Stock; provided, however, that the Company or any Guarantor may incur Indebtedness or issue Disqualified Stock, and any Restricted Subsidiary may incur Acquired Indebtedness, in each case if the Consolidated Interest Coverage Ratio for the Company’s most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date on which such additional Indebtedness is incurred or such Disqualified Stock is issued would have been at least 3.00 3.0 to 1.001.0, determined on a pro forma basis (including a pro forma application of the net proceeds therefrom), as if the additional Indebtedness or Disqualified Stock had been issued or incurred, as the case may be, at the beginning of such four-quarter period. The foregoing provisions shall not apply to the incurrence by the Company or any of its Restricted Subsidiaries of any of the following Indebtedness:

Incurrence of Indebtedness and Issuance of Disqualified Stock. The Company shall will not, and shall will not permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwise, with respect to (collectively, “incur” or an “incurrence”) any Indebtedness (includingincluding Acquired Debt), without limitation, any Acquired Indebtedness) and that the Company will not issue any Disqualified Stock and will not permit any of its Restricted Subsidiaries to issue any shares of preferred stock or Disqualified Stockstock; provided, however, that the Company may incur Indebtedness (including Acquired Debt) or any Guarantor issue shares of Disqualified Stock and the Company’s Restricted Subsidiaries may incur Indebtedness or issue Disqualified Stock, and any Restricted Subsidiary may incur Acquired Indebtedness, in each case shares of preferred stock if the Consolidated Interest Fixed Charge Coverage Ratio for the Company’s most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date on which such the additional Indebtedness is incurred or such the Disqualified Stock or preferred stock is issued would have been at least 3.00 2.0 to 1.001, determined on a pro forma basis (including a pro forma application of the net proceeds therefrom), as if the additional Indebtedness had been incurred, or the Disqualified Stock or preferred stock had been issued or incurredissued, as the case may be, at the beginning of such four-quarter period; provided that the maximum principal amount of Indebtedness (including Acquired Debt), Disqualified Stock and preferred stock that may be incurred or issued, as applicable, pursuant to this paragraph by Restricted Subsidiaries that are not Guarantors shall not exceed $50.0 million at any time outstanding. The foregoing provisions shall of the first paragraph of this Section 4.09 will not apply to the incurrence by the Company or any of its Restricted Subsidiaries of any of the following Indebtedness:items of Indebtedness (collectively, “Permitted Debt”):

Incurrence of Indebtedness and Issuance of Disqualified Stock. The Company and any Guarantor shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwise, with respect to (collectively, “incur” or an “incurrence”) any Indebtedness (includingIndebtedness, without limitation, any Acquired Indebtedness) and that the Company will and any Guarantor shall not issue any Disqualified Stock Stock; provided however, that, (I) the Company and will not permit any of its Restricted Subsidiaries to Guarantor may incur Permitted Indebtedness or issue any shares of preferred stock or Permitted Disqualified Stock; provided, however(II) prior to the consummation of a Qualified Public Company Event, the Company and any Guarantor may incur Subordinated Indebtedness that (i) has a stated maturity date that is, and shall only be redeemed or repurchased, no earlier than the 91st day following the Maturity Date, and (ii) if secured by any Lien (other than a Permitted Lien (excluding clause (b) under such definition)) on any assets of the Company or any Guarantor, such Lien shall rank junior in priority to Liens on such assets of the Company or Guarantor securing the Notes and (III) following the consummation of a Qualified Public Company Event, (x) Indebtedness previously incurred pursuant to clause (II) of this proviso may rank pari passu in right of payment with the Notes, (y) the Company and any Guarantor may incur additional Subordinated Indebtedness or issue Disqualified Stockin accordance with clause (II), and (z) the Company and any Restricted Subsidiary Guarantor may incur Acquired IndebtednessPari Passu Obligations; provided further, in each case that, if the Consolidated Interest Coverage Ratio for the Company’s most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date following a Qualified Public Company Event, any such Indebtedness permitted to be incurred under this clause (III)(z) is secured by any Lien (other than a Permitted Lien (excluding clause (b) under such definition)) on which such additional Indebtedness is incurred or such Disqualified Stock is issued would have been at least 3.00 to 1.00, determined on a pro forma basis (including a pro forma application any assets of the net proceeds therefrom), as if the additional Indebtedness or Disqualified Stock had been issued or incurred, as the case may be, at the beginning of such four-quarter period. The foregoing provisions shall not apply to the incurrence by the Company or any of its Restricted Subsidiaries of any Guarantor, the Company and such Guarantor, as applicable, shall substantially contemporaneously create or permit such Lien to secure equally and ratably the Obligations in respect of the following Indebtedness:Notes, except that no such equal and ratable Lien shall be required if the aggregate amount of Indebtedness so secured does not exceed $2.5 million.

Incurrence of Indebtedness and Issuance of Disqualified Stock. The Company Holdings (A) shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwiseotherwise (collectively, "incur"), with respect to (collectively, “incur” or an “incurrence”) any Indebtedness (including, without limitation, any including Acquired IndebtednessDebt) and that the Company will (B) shall not issue any Disqualified Stock and will shall not permit any of its Restricted Subsidiaries to issue any shares of preferred stock or Disqualified Stock; provided, however, that the Company Issuers may incur Indebtedness (including Acquired Debt) or any Guarantor issue shares of Disqualified Stock and Holdings' Subsidiaries may incur Indebtedness or issue Disqualified Stock, and any Restricted Subsidiary may incur Acquired Indebtedness, in each case preferred equity if the Consolidated Interest Fixed Charge Coverage Ratio for the Company’s Holdings' most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date on which such additional Indebtedness is incurred or such Disqualified Stock is issued would have been at least 3.00 1.75 to 1.001.0, determined on a pro forma basis (including a pro forma application of the net proceeds therefrom), as if the additional Indebtedness had been incurred, or the Disqualified Stock had been issued or incurredissued, as the case may be, at the beginning of such four-quarter period. The foregoing provisions of the first paragraph of this Section 4.09 shall not apply to the incurrence by the Company or any of its Restricted Subsidiaries of any of the following Indebtedness:items of Indebtedness (collectively, "Permitted Debt"):

Incurrence of Indebtedness and Issuance of Disqualified Stock. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwise, with respect to (collectively, “"incur” " or an “"incurrence”") any Indebtedness (including, without limitation, any Acquired Indebtedness) other than Permitted Indebtedness and that the Company will not issue any Disqualified Stock and will not permit any of its Restricted Subsidiaries to issue any shares of preferred stock or Disqualified Stock; provided, however, that the Company or any Subsidiary Guarantor may incur Indebtedness or Indebtedness, and the Company may issue Disqualified Stock, and any Restricted Subsidiary may incur Acquired Indebtedness, in each case if the Consolidated Interest Coverage Ratio for the Company’s 's most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date on which such additional Indebtedness is incurred or such Disqualified Stock is issued would have been at least 3.00 2.0 to 1.001.0, determined on a pro forma basis (including a pro forma application of the net proceeds therefrom), as if the additional Indebtedness or Disqualified Stock had been issued or incurred, as the case may be, incurred at the beginning of such four-quarter period. The foregoing provisions Company shall not apply incur any Indebtedness (including Permitted Indebtedness) if that Indebtedness is contractually subordinated in right of payment to any other Indebtedness of the Company, unless such Indebtedness is also contractually subordinated in right of payment to the incurrence by Notes on substantially identical terms; provided, however, that no Indebtedness of the Company will be deemed to be contractually subordinated in right of payment to any other Indebtedness of the Company solely by virtue of being unsecured. For purposes of determining compliance with this Section 4.09, in the event that an item of proposed Indebtedness meets the criteria of more than one of the categories contained in clauses (a) through (m) of the definition of "Permitted Indebtedness," or any is entitled to be incurred pursuant to the first paragraph of this Section 4.09, the Company shall be permitted to classify such item of Indebtedness on the date of its Restricted Subsidiaries incurrence, or later reclassify all or a portion of such item of Indebtedness, in any of the following Indebtedness:manner that complies with this Section 4.09.

Incurrence of Indebtedness and Issuance of Disqualified Stock. The Company Partnership shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwise, with respect to (collectively, “incur” or an “incurrence”) any Indebtedness (includingincluding Acquired Debt), without limitation, any Acquired Indebtedness) and that the Company will Partnership shall not issue any Disqualified Stock and will not permit any of its Restricted Subsidiaries to issue any shares of preferred stock or Disqualified Preferred Stock; provided, however, that if no Default or Event of Default shall have occurred and be continuing at the Company time or any Guarantor as a consequence of the incurrence of this Indebtedness, the Partnership may incur Indebtedness (including Acquired Debt) or the Partnership may issue shares of Disqualified Stock, and any Restricted Subsidiary may incur Acquired Indebtedness, in each case if (x) the Consolidated Interest Fixed Charge Coverage Ratio for the CompanyPartnership’s most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date on which such that additional Indebtedness is incurred or such Disqualified Stock is issued incurred, would have been at least 3.00 2.0 to 1.001, determined on a pro pro-forma basis (including a pro pro-forma application of the net proceeds therefrom), as if the additional Indebtedness had been incurred or the Disqualified Stock had been issued or incurredissued, as the case may be, at the beginning of such the four-quarter periodperiod and (y) no Default or Event of Default shall have occurred and be continuing at the time of or would occur after giving pro forma effect to such incurrence or issuance and the application of proceeds therefrom. The foregoing provisions first paragraph of this Section 4.09 shall not apply to prohibit the incurrence by the Company or any of its Restricted Subsidiaries of any of the following Indebtedness:(collectively, “Permitted Debt”):

Incurrence of Indebtedness and Issuance of Disqualified Stock. (a) The Company shall Issuer will not, and shall will not permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwise, with respect to (collectivelyin any such case, “incur” or an “incurrence”) any Indebtedness (includingIndebtedness, without limitation, any Acquired Indebtedness) and that the Company Issuer will not issue any shares of Disqualified Stock and will not or permit any of its Restricted Subsidiaries to issue any shares of Disqualified Stock or preferred stock or Disqualified Stockstock; provided, however, that the Company or any Guarantor Issuer may incur Indebtedness or issue shares of Disqualified StockStock (in each case, including Acquired Indebtedness) and any Restricted Subsidiary may incur Indebtedness (in each case, including Acquired Indebtedness) or issue shares of Disqualified Stock or preferred stock, in each case if immediately after and giving effect thereto, the Consolidated Interest Fixed Charge Coverage Ratio for the CompanyIssuer’s most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date on which such additional Indebtedness is incurred or such Disqualified Stock or preferred stock is issued would have been at least 3.00 not less than 2.0 to 1.001.0, determined on a pro forma basis (including a pro forma application of the net proceeds therefrom), as if the additional Indebtedness had been incurred, or such Disqualified Stock or preferred stock had been issued or incurredissued, as the case may be, at the beginning of such four-four quarter period. The foregoing provisions shall not apply to the incurrence by the Company or any of its ; provided that Restricted Subsidiaries of any that are not Guarantors may not incur Indebtedness or issue Disqualified Stock or preferred stock if, after giving pro forma effect to such incurrence or issuance (including a pro forma application of the following Indebtedness:net proceeds therefrom) the amount of Indebtedness of Restricted Subsidiaries that are not Guarantors that would be outstanding pursuant to this clause (a) would exceed aggregate the greater of (i) $30.0 million and (ii) 1.5% of Total Assets in the aggregate.

Incurrence of Indebtedness and Issuance of Disqualified Stock. The Company Enterprise shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwise, with respect to (collectively, “incur” or an “incurrence”"INCUR") any Indebtedness (includingincluding Acquired Debt), without limitation, any Acquired Indebtedness) and that the Company will Enterprise and its Subsidiaries shall not issue any Disqualified Stock and will shall not permit any of its Restricted Subsidiaries to issue any shares of preferred stock or Disqualified Stockequity; providedPROVIDED, howeverHOWEVER, that if no Default or Event of Default shall have occurred and be continuing at the Company time or any Guarantor as a consequence of the incurrence of this Indebtedness, the Enterprise may incur Indebtedness (including Acquired Debt) or issue shares of Disqualified Stock, and any Restricted Subsidiary may incur Acquired Indebtedness, in each case if the Consolidated Interest Fixed Charge Coverage Ratio for the Company’s Enterprise's most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date on which such additional Indebtedness is incurred or such Disqualified Stock is issued incurred, would have been at least 3.00 2.5 to 1.001 if such Indebtedness is incurred prior to December 31, 2003 and 3.0 to 1 thereafter, in each case determined on a pro pro-forma basis (including a pro pro-forma application of the net proceeds therefrom), as if the additional Indebtedness had been incurred or the Disqualified Stock had been issued or incurredissued, as the case may be, at the beginning of such the four-quarter period. The foregoing provisions Notwithstanding the foregoing, the Enterprise shall not apply issue any Disqualified Stock or any type of Capital Stock that would cause the Enterprise not to be lawfully conducting gaming operations in compliance with IGRA. The first paragraph of this Section 4.09 shall not prohibit the incurrence by the Company or any of its Restricted Subsidiaries of any of the following Indebtedness(collectively, "PERMITTED DEBT"), so long as at the time of incurrence, no Default or Event of Default has occurred and is continuing or would be caused thereby:

Incurrence of Indebtedness and Issuance of Disqualified Stock. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, issue, assume, guarantee guaranty or otherwise become directly or indirectly liable, contingently or otherwise, liable with respect to (collectively, “"incur” or " and correlatively, an “"incurrence”" of) any Indebtedness (including, without limitation, any including Acquired IndebtednessDebt) and that the Company will shall not issue any Disqualified Stock any, and will shall not permit any of its Restricted Subsidiaries to issue any any, shares of preferred stock or Disqualified Stock; providedPROVIDED, howeverHOWEVER, that the Company or any Guarantor may incur Indebtedness or issue shares of Disqualified Stock, and any Restricted Subsidiary may incur Acquired Indebtedness, in each case Stock if the Consolidated Interest Fixed Charge Coverage Ratio for the Company’s 's most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date on which such additional Indebtedness is incurred or such Disqualified Stock is issued would have been at least 3.00 2.00 to 1.001 if such Indebtedness is incurred or such Disqualified Stock is issued on or before April 15, 1996 or at least 2.25 to 1 if such Indebtedness is incurred or such Disqualified Stock is issued after April 15, 1996, determined on a pro forma basis (including a pro forma application of the net proceeds therefrom and including the earnings of any business acquired by the Company with the proceeds therefrom), as if the additional Indebtedness had been incurred, or the Disqualified Stock had been issued or incurredissued, as the case may be, at the beginning of such four-quarter period; PROVIDED, HOWEVER, that until April 15, 1996, the Company may incur Indebtedness that is PARI PASSU in right of payment with the Notes pursuant to the foregoing Fixed Charge Coverage Ratio test only if the net proceeds thereof are used for capital expenditures (including Capital Lease Obligations), acquisitions of businesses and Permitted Investments. In addition, each of the following Indebtedness shall be subordinated in right of payment to the Notes or the Note Guarantees, as the case may be, at least to the same extent as the Notes are subordinated to Senior Indebtedness: (A) all Indebtedness that does not provide for all interest payments to be made in cash; (B) all Indebtedness of the Company to any of its Subsidiaries; (C) any Indebtedness of the Company and its Subsidiaries if at the time of incurrence thereof, Indebtedness of the Company and the Guarantors that is PARI PASSU in right of payment to the Notes and the Note Guarantees (including, on a pro forma basis, the Indebtedness to be incurred) exceeds $100 million; and (D) all obligations under the 1994 BPC Holding Corporation Extraordinary Bonus Award Plan. The foregoing provisions limitations shall not apply to (a) revolving credit Indebtedness and letters of credit pursuant to the New Revolving Credit Facility in an aggregate principal amount not to exceed at any one time outstanding the greater of (i) $28 million in principal amount (with letters of credit being deemed to have a principal amount equal to the maximum potential liability of the Company thereunder), less the aggregate amount of all repayments after the Issuance Date that permanently reduce the commitment under the New Revolving Credit Facility, and (ii) the Borrowing Base; (b) the Existing Indebtedness; (c) the Notes or any Note Guarantee; (d) the incurrence by the Company of Refinancing Indebtedness; PROVIDED, HOWEVER, that such Refinancing Indebtedness is a Permitted Refinancing; (e) Indebtedness between or among the Company and any of its Wholly Owned Subsidiaries that are Guarantors; (f) Indebtedness from the Company to Holding PROVIDED that the advances evidenced by such Indebtedness are permitted under Section 4.07 hereof; (g) Hedging Obligations that are incurred for the purpose of fixing or hedging interest rate risk with respect to any floating rate Indebtedness that is permitted by the terms of this Indenture to be outstanding; and (h) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness (in addition to Indebtedness permitted by any other clause of this paragraph) in an aggregate principal amount at any time outstanding not to exceed the following Indebtedness:sum of $1 million at any one time. Notwithstanding anything to the contrary, the Company and its Subsidiaries shall not be permitted to incur any additional Senior Indebtedness unless it is secured.

Incurrence of Indebtedness and Issuance of Disqualified Stock. The Company shall will not, and shall will not permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwise, with respect to (collectively, “incur” or an “incurrence”) any Indebtedness (includingincluding Acquired Debt), without limitation, any Acquired Indebtedness) and that the Company will not issue any Disqualified Stock and will not permit any of its Restricted Subsidiaries to issue any shares of preferred stock or Disqualified Stockstock; provided, however, that the Company may incur Indebtedness (including Acquired Debt) or any Guarantor issue shares of Disqualified Stock and the Company’s Restricted Subsidiaries may incur Indebtedness or issue Disqualified Stock, and any Restricted Subsidiary may incur Acquired Indebtedness, in each case shares of preferred stock if the Consolidated Interest Fixed Charge Coverage Ratio for the Company’s most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date on which such the additional Indebtedness is incurred or such the Disqualified Stock or preferred stock is issued would have been at least 3.00 2.0 to 1.001, determined on a pro forma basis (including a pro forma application of the net proceeds therefrom), as if the additional Indebtedness had been incurred, or the Disqualified Stock or preferred stock had been issued or incurredissued, as the case may be, at the beginning of such four-quarter period; provided that the maximum principal amount of Indebtedness (including Acquired Debt), Disqualified Stock and preferred stock that may be incurred or issued, as applicable, pursuant to this paragraph by Restricted Subsidiaries that are not Guarantors shall not exceed $50.0 million. The foregoing provisions shall of the first paragraph of this Section 4.09 will not apply to the incurrence by the Company or any of its Restricted Subsidiaries of any of the following Indebtedness:items of Indebtedness (collectively, “Permitted Debt”):

Incurrence of Indebtedness and Issuance of Disqualified Stock. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwise, with respect to (collectively, “"incur” or an “incurrence”") any Indebtedness (including, without limitation, any including Acquired Indebtedness) and that the Company will not issue any Disqualified Stock shall not, and will shall not permit any of its Restricted Subsidiaries to to, issue any shares of preferred stock or Disqualified Stock; provided, however, that the Company or any Guarantor and the Subsidiary Guarantors may incur Indebtedness or issue Disqualified Stock, and any Restricted Subsidiary may incur (including Acquired Indebtedness, in each case ) and the Company and the Subsidiary Guarantors may issue shares of Disqualified Stock if (A) the Consolidated Interest Fixed Charge Coverage Ratio for the Company’s 's most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date on which such additional Indebtedness is incurred or such Disqualified Stock is issued would have been at least 3.00 2.5 to 1.001, determined on a pro forma basis (including a pro forma application of the net proceeds therefromtherefrom and the acquisitions in connection therewith), as if the additional Indebtedness had been incurred, or the Disqualified Stock had been issued or incurredissued, as the case may be, at the beginning of such four-quarter period, and (B) no Default or Event of Default shall have occurred and be continuing at the time or as a consequence of the incurrence of such Indebtedness or the issuance of such Disqualified Stock. The foregoing provisions of the first paragraph of this covenant shall not apply to the incurrence by the Company or any of its Restricted Subsidiaries of any of the following Indebtedness:items of Indebtedness (collectively, "Permitted Debt"):

Incurrence of Indebtedness and Issuance of Disqualified Stock. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwise, with respect to (collectively, “incur” or an “incurrence”) any Indebtedness (including, without limitation, any Acquired Indebtedness) and that the Company will not issue any Disqualified Stock and will not permit any of its Restricted Subsidiaries to issue any shares of preferred stock or Disqualified Stockstock; provided, however, that the Company or any Guarantor may incur Indebtedness or issue Disqualified Stock, and any Restricted Subsidiary may incur Acquired Indebtedness, in each case if the Consolidated Interest Coverage Ratio for the Company’s most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date on which such additional Indebtedness is incurred or such Disqualified Stock is issued would have been at least 3.00 3.0 to 1.001.0, determined on a pro forma basis (including a pro forma application of the net proceeds therefrom), as if the additional Indebtedness or Disqualified Stock had been issued or incurred, as the case may be, at the beginning of such four-quarter period. The foregoing provisions shall not apply to the incurrence by the Company or any of its Restricted Subsidiaries of any of the following Indebtedness:

Incurrence of Indebtedness and Issuance of Disqualified Stock. The Company Grove Investors shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwise, with respect to (collectively, “incur” or an “incurrence”"INCUR") any Indebtedness (including, without limitation, any including Acquired IndebtednessDebt) and that the Company will Grove Investors shall not issue any Disqualified Stock and will shall not permit any of its Restricted Subsidiaries to issue any shares of preferred stock or Disqualified Stock; providedPROVIDED, howeverHOWEVER, that the Company Issuers may incur Indebtedness (including Acquired Debt) or any Guarantor issue shares of Disqualified Stock and Grove Investors' Subsidiaries may incur Indebtedness or issue Disqualified Stock, and any Restricted Subsidiary may incur Acquired Indebtedness, in each case preferred equity if the Consolidated Interest Fixed Charge Coverage Ratio for the Company’s Grove Investors' most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date on which such additional Indebtedness is incurred or such Disqualified Stock is issued would have been at least 3.00 1.75 to 1.001, determined on a pro forma basis (including a pro forma application of the net proceeds therefrom), as if the additional Indebtedness had been incurred, or the Disqualified Stock had been issued or incurredissued, as the case may be, at the beginning of such four-four quarter period. The foregoing provisions of the first paragraph of this Section 4.09 shall not apply to the incurrence by the Company or any of its Restricted Subsidiaries of any of the following Indebtedness:items of Indebtedness (collectively, "PERMITTED DEBT"):

Incurrence of Indebtedness and Issuance of Disqualified Stock. The Company shall will not, and shall will not permit any of its Restricted Subsidiaries Subsidiary to, and Astor Holdings II will not, directly or indirectly, create, incur, issue, assume, guarantee Guarantee or otherwise become directly or indirectly liable, contingently or otherwise, liable with respect to (collectively, “"incur” or an “incurrence”") any Indebtedness (including, without limitation, any Acquired Indebtednessincluding as a result of an acquisition) and that the Company will not issue any Disqualified Stock and will not permit any of its Restricted Subsidiaries to issue any shares of preferred stock or Disqualified Stock; provided, however, PROVIDED that the Company or any Guarantor and the Subsidiary Guarantors may incur Indebtedness or issue shares of Disqualified StockStock if (i) no Default or Event of Default shall have occurred and be continuing at the time of, or would occur after giving effect on a pro forma basis to, such incurrence of Indebtedness or issuance of Disqualified Stock and any Restricted Subsidiary may incur Acquired Indebtedness, in each case if (ii) the Consolidated Interest Fixed Charge Coverage Ratio for the Company’s Astor Holdings II's most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date on which such additional Indebtedness is incurred or such Disqualified Stock is issued would have been at least 3.00 (x) 2.0 to 1.001 if such incurrence or issuance occurs on or before October 8, 1998 or (y) 2.25 to 1 if such incurrence or issuance occurs at any time thereafter, in each case determined on a pro forma basis (including a pro forma application of the net proceeds therefrom), ) as if the additional Indebtedness had been incurred or the Disqualified Stock had been issued or incurredissued, as the case may be, at the beginning of such four-quarter period. The foregoing provisions shall not apply to the incurrence by the Company or any of its Restricted Subsidiaries of any of the following Indebtedness:.

Incurrence of Indebtedness and Issuance of Disqualified Stock. (a) The Company and its Subsidiaries shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, indirectly create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwise, with respect to liable for the payment of (collectively, “"incur” or an “" and, correlatively, "incurred" and "incurrence”") any Indebtedness (including, without limitation, any Acquired IndebtednessDebt) and that the Company will not or issue any Disqualified Stock and will not permit any of its Restricted Subsidiaries to issue any shares of preferred stock or Disqualified Stock; provided, however, that the Company or and/or any Guarantor of its Subsidiaries may incur Indebtedness (including, without limitation, Acquired Debt) or issue shares of Disqualified Stock if, after giving effect to the incurrence of such Indebtedness or the issuance of such Disqualified Stock, and any Restricted Subsidiary may incur Acquired Indebtedness, in each case if the Consolidated Interest Coverage Cash Flow Leverage Ratio for the Company’s 's most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date of such incurrence or issuance: (x) does not exceed 5.5 to 1 if such incurrence or issuance occurs on which or prior to June 1, 1999; and (y) does not exceed 5.0 to 1 if such additional Indebtedness is incurred incurrence or such Disqualified Stock is issued would have been at least 3.00 to 1.00issuance occurs after June 1, 1999, in each case, determined on a pro forma basis (including a pro forma application of the net proceeds therefrom), as if the additional Indebtedness had been incurred, or the Disqualified Stock had been issued or incurredissued, as the case may be, at the beginning of such four-quarter period. The foregoing provisions shall not apply If the Company incurs any Indebtedness or issues or redeems any Preferred Stock subsequent to the incurrence by the Company or any of its Restricted Subsidiaries of any commencement of the following period for which such ratio is being calculated but prior to the event for which the calculation of the ratio is made, then the ratio will be calculated giving pro forma effect to any such incurrence of Indebtedness:, or such issuance or redemption of Preferred Stock, as if the same had occurred at the beginning of the applicable period. In making such calculation on a pro forma basis, interest attributable to Indebtedness bearing a floating interest rate shall be computed as if the rate in effect on the date of computation had been the applicable rate for the entire period.

Incurrence of Indebtedness and Issuance of Disqualified Stock. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwise, with respect to (collectively, “"incur” or an “incurrence”") any Indebtedness (including, without limitation, any including Acquired IndebtednessDebt) and that the Company will not or issue any Disqualified Stock and will not permit any of its Restricted Subsidiaries to issue any shares of preferred stock or Disqualified Stock; provided, however, that the Company or any Guarantor may incur Indebtedness (including Acquired Debt) or issue shares of Disqualified StockStock if the Company's Debt to Cash Flow Ratio is greater than zero and less than or equal to (a) 5.0 to 1, if such incurrence is on or prior to June 1, 2001, and any Restricted Subsidiary may incur Acquired Indebtedness(b) 4.5 to 1, if such incurrence of issuance is after June 1, 2001, in each case determined on a pro forma basis (including a pro forma application of the net proceeds therefrom) as if the Consolidated Interest Coverage Ratio for additional Indebtedness had been incurred at the beginning of the Company’s 's most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date on which such additional Indebtedness is incurred incurred. Notwithstanding the foregoing, neither the Company nor any of its Restricted Subsidiaries shall incur any Indebtedness that is contractually subordinated in right of payment to any other Indebtedness of the Company or such Disqualified Stock Restricted Subsidiary unless such Indebtedness is issued would have been at least 3.00 also contractually subordinated in right of payment to 1.00the Notes on substantially identical terms; provided, determined on a pro forma basis (including a pro forma application however, that no Indebtedness of the net proceeds therefrom), as if Company or any Restricted Subsidiary shall be deemed to be contractually subordinated in right of payment to any other Indebtedness of the additional Indebtedness Company or Disqualified Stock had been issued or incurred, as the case may be, at the beginning such Restricted Subsidiary solely by virtue of such four-quarter periodbeing unsecured. The foregoing provisions of the first paragraph of this Section 4.09 shall not apply to the incurrence by the Company or any of its Restricted Subsidiaries of any of the following Indebtedness:items of Indebtedness (collectively, "Permitted Debt"):

Incurrence of Indebtedness and Issuance of Disqualified Stock. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwise, with respect to (collectively, “"incur” or an “incurrence”") any Indebtedness (including, without limitation, any including Acquired IndebtednessDebt) and that the Company will shall not issue any Disqualified Stock and will shall not permit any of its Restricted Subsidiaries to issue any shares of preferred stock or Disqualified Stockstock; provided, however, that the Company Issuers may incur Indebtedness (including Acquired Debt) or any Guarantor issue shares of Disqualified Stock and the Company's Subsidiaries may incur Indebtedness or issue Disqualified Stock, and any Restricted Subsidiary may incur Acquired Indebtedness, in each case preferred equity if the Consolidated Interest Fixed Charge Coverage Ratio for the Company’s 's most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date on which such additional Indebtedness is incurred or such Disqualified Stock is issued would have been at least 3.00 2.0 to 1.001, determined on a pro forma basis (including a pro forma application of the net proceeds therefrom), as if the additional Indebtedness had been incurred, or the Disqualified Stock had been issued or incurredissued, as the case may be, at the beginning of such four-four quarter period. The foregoing provisions of the first paragraph of this Section 4.09 shall not apply to the incurrence by the Company or any of its Restricted Subsidiaries of any of the following Indebtedness:items of Indebtedness (collectively, "Permitted Debt"):

Incurrence of Indebtedness and Issuance of Disqualified Stock. The Company shall not, and shall not permit any Restricted Subsidiary of its the Company, Restricted Subsidiaries Affiliate or Restricted Subsidiary of a Restricted Affiliate to, directly or indirectly, create, incur, issue, assume, guarantee guaranty or otherwise become directly or indirectly liable, contingently or otherwise, liable with respect to (collectively, “"incur” or an “incurrence”") any Indebtedness (including, without limitation, any including Acquired IndebtednessDebt) and that the Company will not issue any Disqualified Stock and will not permit any Restricted Subsidiary of its the Company, Restricted Subsidiaries Affiliate or Restricted Subsidiary of a Restricted Affiliate to issue any shares of preferred stock or Disqualified Stockstock; provided, however, that the Company or any Guarantor may incur Indebtedness (including Acquired Debt), or issue shares of Disqualified Stock, and any Restricted Subsidiary may incur Acquired Indebtedness, in each case if the Consolidated Interest Coverage Ratio for if: (i) the Company’s most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date on which such additional Indebtedness 's Consolidated Debt to Consolidated Cash Flow Ratio is incurred or such Disqualified Stock is issued would have been at least 3.00 less than 6.0 to 1.001, determined on a pro forma basis (including a pro forma application of the net proceeds therefrom), as if the additional Indebtedness had been incurred, or the Disqualified Stock had been issued or incurredissued, as the case may be, at the beginning of the applicable four quarter period; or (ii) the Company's Consolidated Debt does not exceed 30% of the Company's Total Market Capitalization, calculated as of the date of incurrence or issuance and on a pro forma basis after giving effect to such incurrence or issuance (including a pro forma application of the net proceeds therefrom). The provisions of the foregoing paragraph will not apply to (a) Existing Indebtedness; (b) commitments existing as of the date hereof by the Company and its Subsidiaries relating to capital contributions to Omnitel or OPI (including the funding commitments under OPI's performance bond); (c) the Notes; (d) the Convertible Subordinated Notes; (e) intercompany Indebtedness between or among the Company and a Wholly Owned Restricted Subsidiary of the Company to the extent permitted by the other provisions of this Indenture; (f) the incurrence by the Company, a Restricted Subsidiary of the Company, a Restricted Affiliate or a Restricted Subsidiary of a Restricted Affiliate of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, redeem, defease or refund other Indebtedness of the Company, a Restricted Subsidiary of the Company, a Restricted Affiliate or a Restricted Subsidiary of a Restricted Affiliate; (g) the incurrence by a Restricted Subsidiary of the Company, a Restricted Affiliate or a Restricted Subsidiary of a Restricted Affiliate of Project Financing, provided that no single Restricted Subsidiary (together with its consolidated Restricted Subsidiaries and its Restricted Affiliates) and no single Restricted Affiliate (together with its consolidated Restricted Subsidiaries and its Restricted Affiliates), pro forma for such incurrence and the application of the net proceeds therefrom, may, on the date of such incurrence, have an aggregate principal amount of Project Financing outstanding, determined without duplication, that exceeds the greater of (1) 5.0x the Consolidated Cash Flow of such Restricted Subsidiary or Restricted Affiliate for the most recently completed four full fiscal quarters for which internal financial statements are available as of the date of such incurrence (calculated on a pro forma basis as if such Project Financing had been incurred and the proceeds therefrom applied at the beginning of the applicable four-quarter period. The foregoing provisions shall not apply to ) or (2) 200% of the Consolidated Invested Equity Capital of such Restricted Subsidiary or Restricted Affiliate at such time; (h) the incurrence by the Company of Subordinated Indebtedness in an aggregate principal amount (or accreted value, as applicable) at any one time outstanding (with each issue measured as of the date of its incurrence and without giving effect to subsequent accretion) not to exceed $20 million (or the equivalent amount in one or more foreign currencies); (i) Guarantees by the Company or a Restricted Subsidiary of the Company of up to $10 million in principal amount of Project Financing of the Company's Restricted Subsidiaries, Restricted Affiliates or Restricted Subsidiaries of its Restricted Affiliates at any one time outstanding and related accrued interest; (j) to the extent an Investment is permitted to be made by the Company or a Restricted Subsidiary of the Company, Restricted Affiliate or Restricted Subsidiary of a Restricted Affiliate under Section 4.07 hereof, Guarantees by the Company or such Restricted Subsidiary of the Company, Restricted Affiliate or Restricted Subsidiary of a Restricted Affiliate of its obligation to make such Investment; (k) the incurrence by the Company of additional Subordinated Indebtedness in an aggregate principal amount (or accreted value, as applicable) at any one time outstanding (with each issue measured at the date of its incurrence and without giving affect to subsequent accretion) not to exceed two times the amount (or the equivalent amount in one or more foreign currencies) of Equity Offering Proceeds that have been received by the Company since the date hereof and not used to fund Restricted Payments; (l) Non-Recourse Pledges in connection with Project Financings; (m) Hedging Obligations so long as such obligations relate to, and do not have a notional amount greater than, obligations permitted hereunder in respect of Indebtedness or commitments to make Investments; (n) any Indebtedness outstanding from time to time under a Credit Facility; provided, the aggregate amount of such Indebtedness outstanding at any one time shall not exceed $25 million; (o) Purchase Money Debt, provided the aggregate amount of such Indebtedness outstanding at any time shall not exceed $25 million; (p) additional Indebtedness of the Company or its Restricted Subsidiaries, Restricted Affiliates or Restricted Subsidiaries of Restricted Affiliates, in an aggregate principal amount (or accreted value, as applicable) not to exceed $20 million at any one time outstanding; (q) additional Indebtedness (other than Subordinated Indebtedness) of the Company or its Restricted Subsidiaries, Restricted Affiliates or Restricted Subsidiaries of Restricted Affiliates, in an aggregate principal amount (or accreted value, as applicable) not to exceed the excess, if any, of (1) the amount of Implied POP Senior Indebtedness less (2) $240 million; and (r) additional Subordinated Indebtedness in an aggregate principal amount (or accreted value, as applicable) not to exceed the excess, if any, of (1) the amount of Implied POP Subordinated Indebtedness less (2) $75 million. The Board of Directors may designate a Restricted Subsidiary of the Company or of a Restricted Affiliate to be an Unrestricted Subsidiary and may designate a Restricted Affiliate to be an Unrestricted Affiliate if no Default or Event of Default shall have occurred and be continuing, and if, after giving pro forma effect to such designation, the Company would have been permitted to make at least $1.00 of additional Investments pursuant to clause (f) of the definition of Permitted Investments. Upon the designation of any Restricted Subsidiary as an Unrestricted Subsidiary, or the designation of any Restricted Affiliate as an Unrestricted Affiliate, all previous Investments by the Company and the Company's Pro Rata Portion of any Investments by any of its Restricted Subsidiaries or Restricted Affiliates in such Restricted Subsidiary or Restricted Affiliate (in all other cases) will be deemed to constitute an Investment made on the date of any such designation in an Unrestricted Subsidiary or Unrestricted Affiliate, as applicable, in an amount equal to the greatest of (x) the following Indebtedness:aggregate original fair market value of such Investments (or the Company's Pro Rata Portion thereof, as applicable) as determined in good faith by the Company's Board of Directors, (y) the net book value of such Investments at the time of such designation (or the Company's Pro Rata Portion thereof, as applicable), and (z) the fair market value of such Investments at the time of such designation (or the Company's Pro Rata Portion thereof, as applicable) as determined in good faith by the Company's Board of Directors. Such designation will only be permitted if such Investment (or the Company's Pro Rata Portion thereof, as applicable) would be permitted at such time by the terms under Section 4.07 hereof and if such Restricted Subsidiary or Restricted Affiliate otherwise meets the definition of an Unrestricted Subsidiary or an Unrestricted Affiliate, as applicable, and has no Indebtedness other than Non-Recourse Debt with respect to the Company and its Restricted Subsidiaries, its Restricted Affiliates and Restricted Subsidiaries of Restricted Affiliates.

Incurrence of Indebtedness and Issuance of Disqualified Stock. The Company Parent shall not, and shall not permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwise, with respect to (collectively, “incur” or an “incurrence”) any Indebtedness (including, without limitation, any Acquired Indebtedness) and that the Company will Parent shall not issue any Disqualified Stock and will shall not permit any of its Restricted Subsidiaries Subsidiary to issue any shares of preferred stock or Disqualified Stock; provided, however, that the Company Parent or any Guarantor may incur Indebtedness or issue Disqualified Stock, and any Restricted Subsidiary may incur Acquired Indebtedness, in each case if the Consolidated Interest Coverage Ratio for the CompanyParent’s most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date on which such additional Indebtedness is incurred or such Disqualified Stock is issued would have been at least 3.00 to 1.00, determined on a pro forma basis (including a pro forma application of the net proceeds therefrom), as if the additional Indebtedness or Disqualified Stock had been issued or incurred, as the case may be, at the beginning of such four-quarter period. The foregoing provisions shall not apply to the incurrence by the Company Parent or any of its Restricted Subsidiaries Subsidiary of any of the following Indebtedness:

Incurrence of Indebtedness and Issuance of Disqualified Stock. (a) The Company shall Issuer will not, and shall will not permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwise, with respect to (collectively, “incur” or and collectively, an “incurrence”) with respect to any Indebtedness (including, without limitation, any including Acquired IndebtednessIndebtedness and Attributable Debt) and that the Company Issuer will not issue any shares of Disqualified Stock and will not permit any of its Restricted Subsidiaries Subsidiary to issue any shares of Disqualified Stock or preferred stock or Disqualified Stockstock; provided, however, that the Company or any Guarantor Issuer may incur Indebtedness (including Acquired Indebtedness) or issue shares of Disqualified Stock, and any Restricted Subsidiary may incur Indebtedness (including Acquired IndebtednessIndebtedness or Attributable Debt), in each case issue shares of Disqualified Stock and issue shares of preferred stock, if the Consolidated Interest Fixed Charge Coverage Ratio for the CompanyIssuer’s most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date on which such additional Indebtedness is incurred or such Disqualified Stock or preferred stock is issued would have been at least 3.00 2.00 to 1.00l.00, determined on a pro forma basis (including a pro forma application of the net proceeds therefrom), as if the additional Indebtedness had been incurred, or the Disqualified Stock or preferred stock had been issued or incurredissued, as the case may be, and the application of proceeds therefrom had occurred at the beginning of such four-quarter period. The ; provided, further, that the amount of Indebtedness (other than Acquired Indebtedness), Disqualified Stock and preferred stock that may be incurred pursuant to the foregoing provisions by Restricted Subsidiaries (other than Foreign Subsidiaries) that are not Guarantors shall not apply to the incurrence by the Company or exceed $30.0 million at any of its Restricted Subsidiaries of any of the following Indebtedness:one time outstanding.

Incurrence of Indebtedness and Issuance of Disqualified Stock. The Company shall (a) Texas Genco LLC will not, and shall will not permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwise, with respect to (collectively, “incur” or and collectively, an “incurrence”) with respect to any Indebtedness (including, without limitation, any including Acquired Indebtedness) and that the Company Texas Genco LLC will not issue any shares of Disqualified Stock and will not permit any of its Restricted Subsidiaries Subsidiary to issue any shares of Disqualified Stock or preferred stock or Disqualified Stockstock; provided, however, that the Company or any Guarantor Texas Genco LLC may incur Indebtedness (including Acquired Indebtedness) or issue shares of Disqualified Stock, and any Restricted Subsidiary may incur Indebtedness (including Acquired Indebtedness), in each case issue shares of Disqualified Stock and issue shares of preferred stock, if the Consolidated Interest Fixed Charge Coverage Ratio for the CompanyTexas Genco LLC’s most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date on which such additional Indebtedness is incurred or such Disqualified Stock or preferred stock is issued would have been at least 3.00 2.00 to 1.00, determined on a pro forma basis (including a pro forma application of the net proceeds therefrom), as if the additional Indebtedness had been incurred, or the Disqualified Stock or preferred stock had been issued or incurredissued, as the case may be, and the application of proceeds therefrom had occurred at the beginning of such four-quarter period. The ; provided, that the amount of Indebtedness (other than Acquired Indebtedness), Disqualified Stock and preferred stock that may be incurred pursuant to the foregoing provisions by Restricted Subsidiaries that are not Guarantors shall not apply to the incurrence by the Company or exceed $100.0 million at any of its Restricted Subsidiaries of any of the following Indebtedness:one time outstanding.

Incurrence of Indebtedness and Issuance of Disqualified Stock. The Company shall will not, and shall will not permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwise, with respect to (collectively, “incur” or an “incurrence”) any Indebtedness (including, without limitation, any including Acquired Indebtedness) and that the Company will not issue any Disqualified Stock not, and will not permit any of its Restricted Subsidiaries to issue any shares of Disqualified Stock and will not permit any of its Restricted Subsidiaries to issue preferred stock or Disqualified Stockstock; provided, however, that the Company or and any Guarantor Restricted Subsidiary may incur Indebtedness (including Acquired Indebtedness) or issue shares of Disqualified Stock, and any Restricted Subsidiary may incur Acquired Indebtedness, in each case if the Consolidated Interest Fixed Charge Coverage Ratio for the Company’s most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date on which such additional Indebtedness is incurred or such Disqualified Stock is issued would have been at least 3.00 1.5 to 1.001, determined on a pro forma basis (including a pro forma application of the net proceeds therefrom), as if the additional Indebtedness had been incurred, or the Disqualified Stock had been issued or incurredissued, as the case may be, at the beginning of such four-quarter period. The foregoing provisions shall of the first paragraph of this covenant will not apply to the incurrence by the Company or any of its Restricted Subsidiaries of any of the following Indebtedness:items of Indebtedness (collectively, “Permitted Debt”):

Incurrence of Indebtedness and Issuance of Disqualified Stock. 26 The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, indirectly create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwise, liable with respect to (collectively, “"incur” or an “incurrence”") any Indebtedness (including, without limitation, any including Acquired IndebtednessDebt) and that the Company will and the Restricted Subsidiaries shall not issue any Disqualified Stock and will not permit any of its Restricted Subsidiaries to issue any shares of preferred stock or Disqualified Stock; provided, however, that the Company or any Guarantor and the Restricted Subsidiaries may incur Indebtedness or issue shares of Disqualified Stock, and any Restricted Subsidiary may incur Acquired Indebtedness, in each case Stock if the Consolidated Interest Fixed Charge Coverage Ratio for the Company’s 's most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date on which such additional Indebtedness is incurred or such Disqualified Stock is issued would have been at least 3.00 to 1.00issued, in each case determined on a pro forma basis (including a pro forma application of the net proceeds therefrom), ) as if the additional Indebtedness had been incurred, or the Disqualified Stock had been issued or incurredissued, as the case may be, at the beginning of such four-quarter period, would have been at least (i) 1.25 to 1 for an incurrence or issuance occurring on or before _______, 1998 [fourth full fiscal quarter], or (ii) 1.50 to 1 for an incurrence or issuance occurring after _____________, 1998 and on or before _______, 1998 [sixth full fiscal quarter], or (iii) 1.75 to 1 for an incurrence or issuance occurring after _____________, 1998 and on or before _______, 1999 [eighth full fiscal quarter], or (iv) 2.0 to 1 for an incurrence or issuance occurring at any time thereafter or, solely in the case of an incurrence of Indebtedness or an issuance of Disqualified Stock on or before _______, 1999 [eighth full fiscal quarter], the Fixed Charge Coverage Ratio for the Company's most recently ended full fiscal quarter for which internal financial statements are available immediately preceding the date on which such additional Indebtedness is incurred or such Disqualified Stock is issued, in each case determined on a pro forma basis (including a pro forma application of the net proceeds therefrom) as if the additional Indebtedness had been incurred, or the Disqualified Stock had been issued, as the case may be, at the beginning of such quarter, would have been at least 2.0 to 1. The foregoing provisions of the first paragraph of this covenant shall not apply to the incurrence of any of the following items of Indebtedness: (i) the incurrence by the Company of Indebtedness under revolving credit facilities and the issuance and creation of letters of credit and banker's acceptances thereunder (with letters of credit and banker's acceptances being deemed to have a principal amount equal to the face amount thereof) up to an aggregate amount equal to the greater of (y) $50.0 million or (z) the Borrowing Base; (ii) the incurrence by the Company of Indebtedness represented by the Notes and the Subsidiary Guarantees; (iii) Indebtedness (including Capital Lease Obligations) incurred by the Company or any of its Restricted Subsidiaries to finance the purchase, lease or improvement of property (real or personal) or equipment (whether through the direct purchase of assets or the Capital Stock of any Person owning such assets) in an aggregate principal amount which, when aggregated with the principal amount of all other Indebtedness then outstanding and incurred pursuant to this clause (together with any Refinancing Indebtedness with respect thereto), does not exceed $10.0 million; (iv) Indebtedness incurred by the Company or any of its Restricted Subsidiaries constituting reimbursement obligations with respect to letters of credit issued in the ordinary course of business, including without limitation letters of credit in respect of workers' compensation claims or self-insurance, or similar reimbursement obligations regarding workers' compensation claims; provided, however, that upon the drawing of such letters of credit or the incurrence of such Indebtedness, such obligations are reimbursed within 30 days following such drawing or incurrence; (v) Indebtedness arising from agreements of the Company or a Restricted Subsidiary providing for indemnification, adjustment of purchase price or similar obligations, in each case incurred or assumed in connection with the disposition of any business, assets or a Subsidiary, other than guarantees of Indebtedness incurred by any Person acquiring all or any portion of such business, assets or a Subsidiary for the purpose of financing such acquisition; provided, however, that (A) such Indebtedness is not reflected on the balance sheet of the Company or any Restricted Subsidiary (contingent obligations referred to in a footnote to financial statements and not otherwise reflected on the balance sheet will not be deemed to be reflected on such balance sheet for purposes of this clause (A)) and (B) the maximum assumable liability in respect of all such Indebtedness shall at no time exceed the gross proceeds, including non-cash proceeds (the fair market value of which shall be measured at the time received and without giving effect 27 to any subsequent changes in value) actually received by the Company and its Restricted Subsidiaries in connection with such disposition; (vi) the incurrence by the Company or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to refund, refinance or replace, Indebtedness that was permitted by this Indenture to be incurred; (vii) the incurrence by the Company or any of its Restricted Subsidiaries of intercompany Indebtedness between or among the Company and any of its Wholly Owned Restricted Subsidiaries; provided, however, that (A) if the Company is the obligor on such Indebtedness, such Indebtedness is expressly subordinated to the prior payment in full in cash of all Obligations with respect to the Notes and (B)(1) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than the Company or a Wholly Owned Restricted Subsidiary and (2) any sale or other transfer of any such Indebtedness to a Person that is not either the Company or a Wholly Owned Restricted Subsidiary shall be deemed, in each case, to constitute an incurrence of such Indebtedness by the Company or such Restricted Subsidiary, as the case may be; (viii) Hedging Obligations that are incurred in the ordinary course of business (A) for the purpose of fixing or hedging interest rate risk with respect to any Indebtedness that is permitted by the terms of this Indenture to be outstanding or (B) for the purpose of fixing or hedging currently exchange rate risk with respect to any currency exchanges; (ix) the guarantee by the Company or any of the following Indebtedness:Subsidiary Guarantors of Indebtedness of the Company or a Restricted Subsidiary of the Company that was permitted to be incurred by another provision of this covenant; (x) the incurrence by the Company's Unrestricted Subsidiaries of Non-Recourse Debt, provided, however, that if any such Indebtedness ceases to be Non-Recourse Debt of an Unrestricted Subsidiary, such event shall be deemed to constitute an incurrence of Indebtedness by a Restricted Subsidiary of the Company; and (xi) additional Indebtedness in an aggregate amount outstanding not to exceed $_____ at any time. For purposes of determining compliance with this covenant, in the event that an item of Indebtedness meets the criteria of more than one of the categories described in clauses (i) through (x) above or is entitled to be incurred pursuant to the first paragraph of this covenant, the Company shall, in its sole discretion, classify such item of Indebtedness in any manner that complies with this covenant and such item of Indebtedness will be treated as having been incurred pursuant to only one of such clauses or pursuant to the first paragraph hereof. Accrual of interest of the accretion of accreted value will not be deemed to be an incurrence of Indebtedness for purposes of this covenant.

Incurrence of Indebtedness and Issuance of Disqualified Stock. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwise, with respect to (collectively, “"incur” " or an “"incurrence”") any Indebtedness (including, without limitation, any Acquired Indebtedness) and that the Company will not issue any Disqualified Stock and will not permit any of its Restricted Subsidiaries to issue any shares of preferred stock or Disqualified Stockstock; provided, however, that the Company or any Guarantor and its Restricted Subsidiaries may incur Indebtedness or Indebtedness, and the Company may issue Disqualified Stock, and any Restricted Subsidiary may incur Acquired Indebtedness, in each case if the Consolidated Interest Coverage Ratio for the Company’s 's most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date on which such additional Indebtedness is incurred or such Disqualified Stock is issued would have been at least 3.00 2.0 to 1.001, determined on a pro forma basis (including a pro forma application of the net proceeds therefrom), as if the additional Indebtedness or Disqualified Stock had been issued or incurred, as the case may be, at the beginning of such four-quarter period. The foregoing provisions shall not apply to the incurrence by the Company or any of its Restricted Subsidiaries of any of the following Indebtedness:

Incurrence of Indebtedness and Issuance of Disqualified Stock. (a) The Company shall Issuer will not, and shall will not permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwise, with respect to (collectivelyin any such case, “incur” or an “incurrence”) any Indebtedness (includingIndebtedness, without limitation, any Acquired Indebtedness) and that the Company Issuer will not issue any shares of Disqualified Stock and will not or permit any of its Restricted Subsidiaries to issue any shares of Disqualified Stock or preferred stock or Disqualified Stockstock; provided, however, that the Company or any Guarantor Issuer may incur Indebtedness or issue shares of Disqualified StockStock (in each case, including Acquired Indebtedness) and any Restricted Subsidiary may incur Indebtedness (in each case, including Acquired Indebtedness) or issue shares of Disqualified Stock or preferred stock, in each case if immediately after and giving effect thereto, the Consolidated Interest Fixed Charge Coverage Ratio for the CompanyIssuer’s most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date on which such additional Indebtedness is incurred or such Disqualified Stock or preferred stock is issued would have been at least 3.00 not less than 2.0 to 1.001.0, determined on a pro forma basis (including a pro forma application of the net proceeds therefrom), as if the additional Indebtedness had been incurred, or such Disqualified Stock or preferred stock had been issued or incurredissued, as the case may be, at the beginning of such four-four quarter period. The foregoing provisions shall not apply to the incurrence by the Company or any of its ; provided that Restricted Subsidiaries of any that are not Guarantors may not incur Indebtedness or issue Disqualified Stock or preferred stock if, after giving pro forma effect to such incurrence or issuance (including a pro forma application of the following Indebtedness:net proceeds therefrom) the amount of Indebtedness of Restricted Subsidiaries that are not Guarantors that would be outstanding pursuant to this clause (a) would exceed in aggregate the greater of (i) $45.0 million and (ii) 1.5% of Total Assets.

Incurrence of Indebtedness and Issuance of Disqualified Stock. The Company and any Guarantor or Restricted Subsidiary shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwise, with respect to (collectively, “incur” or an “incurrence”) any Indebtedness (includingIndebtedness, without limitation, any Acquired Indebtedness) and that the Company will and any Guarantor or Restricted Subsidiary shall not issue any Disqualified Stock and will not permit any of its Restricted Subsidiaries to issue any shares of preferred stock or Disqualified Stock; provided, provided however, that (I) the Company and any Guarantor or Restricted Subsidiary may incur Permitted Indebtedness or issue Permitted Disqualified Stock and (II) the Company and any Guarantor or Restricted Subsidiary may incur Subordinated Indebtedness that (i) has a stated maturity date that is, and shall only be redeemed or repurchased, no earlier than the 181st day following the Maturity Date, (ii) if secured by any Lien (other than a Permitted Lien (excluding clause (b) under such definition) on any assets of the Company or any Guarantor may incur Indebtedness or issue Disqualified StockRestricted Subsidiary, and any Restricted Subsidiary may incur Acquired Indebtedness, such Lien shall rank junior in each case if the Consolidated Interest Coverage Ratio for the Company’s most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date priority to Liens on which such additional Indebtedness is incurred or such Disqualified Stock is issued would have been at least 3.00 to 1.00, determined on a pro forma basis (including a pro forma application assets of the net proceeds therefrom), as if the additional Indebtedness or Disqualified Stock had been issued or incurred, as the case may be, at the beginning of such four-quarter period. The foregoing provisions shall not apply to the incurrence by the Company or Guarantor securing the Notes and (ii) provided that no Subordinated Indebtedness may be amended in any manner that is materially adverse to the Holders; provided, further, that, the B/D Subsidiaries shall be able to incur Indebtedness in the ordinary course of its Restricted Subsidiaries of any of the following Indebtedness:business or as needed to meet regulatory or clearing house deposit obligations and/or to support customer trading and settlement activity.

Incurrence of Indebtedness and Issuance of Disqualified Stock. (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries toshall not, directly or indirectly, (i) create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwise, with respect to liable for the payment of (collectively, “"incur” or an “" and, correlatively, "incurred" and "incurrence”") any Indebtedness (including, without limitation, any Acquired IndebtednessDebt) and that the Company will not or (ii) issue any Disqualified Stock and will not permit any of its Restricted Subsidiaries to issue any shares of preferred stock or Disqualified Stock; provided, however, that the Company or and/or any Guarantor of its Restricted Subsidiaries may incur Indebtedness (including, without limitation, Acquired Debt) or issue shares of Disqualified Stock if, after giving effect to the incurrence of such Indebtedness or the issuance of such Disqualified Stock, and any Restricted Subsidiary may incur Acquired Indebtedness, in each case if the Consolidated Interest Coverage Cash Flow Leverage Ratio for the Company’s most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date on which such additional Indebtedness is incurred or such Disqualified Stock is issued would have been at least 3.00 to 1.00, determined on a pro forma basis (including a pro forma application of the net proceeds therefrom), as if the additional Indebtedness had been incurred, or the Disqualified Stock had been issued or incurred, as the case may be, at the beginning of the period used to calculate the Consolidated Cash Flow Leverage Ratio, does not exceed 6.0 to 1. If the Company incurs any Indebtedness or issues or redeems any Preferred Stock subsequent to the commencement of the period for which such four-quarter ratio is being calculated but prior to the event for which the calculation of the ratio is made, then the ratio will be calculated giving pro forma effect to any such incurrence of Indebtedness, or such issuance or redemption of Preferred Stock, as if the same had occurred at the beginning of the applicable period. The foregoing provisions In making such calculation on a pro forma basis, interest attributable to Indebtedness bearing a floating interest rate shall not apply to be computed as if the incurrence by rate in effect on the Company or any date of its Restricted Subsidiaries of any of computation had been the following Indebtedness:applicable rate for the entire period.