Common use of Incurrence of Indebtedness Clause in Contracts

Incurrence of Indebtedness. (i) So long as this Note is outstanding, the Company shall not, and the Company shall not permit any of its Subsidiaries to, directly or indirectly, incur or guarantee or assume any Indebtedness other than (x) Permitted Indebtedness and (y) any additional Indebtedness (other than Indebtedness described in clause (iv) of the definition of “Permitted Indebtedness”) that (1) either (A) does not contain any issuances of any equity securities of the Company or any of its Subsidiaries (other than the Warrants) in the event that, as of the applicable time of determination, the Company shall have not yet obtained the Stockholder Approval (as defined in the Exchange Agreement), or (B) does not contain any material equity component in the event that, as of the applicable time of determination, the Company shall have, on or prior to such time, obtained the Stockholder Approval, and (2) the ratio of Consolidated Funded Indebtedness of the Company and its Subsidiaries to TTM EBITDA of the Company and its Subsidiaries for the twelve month period most recently ended (as measured as of the end of the most recently completed fiscal quarter) does not exceed 3.50 to 1.00 (both immediately prior to the incurrence, guarantee or assumption of such additional Indebtedness and immediately after giving effect thereto). For the avoidance of doubt, this Note and the Other Notes shall not be included in the incurred indebtedness calculation of clause Section 13(b)(i)(y) above. (ii) For purposes of this Section 13(b), “Consolidated Funded Indebtedness” and “TTM EBITDA” shall have the meanings set forth in Section 29 hereof.

Incurrence of Indebtedness. (i) So long as this Note is outstanding, the Company The Issuer shall not, and the Company shall not permit any of its Restricted Subsidiaries to, directly or indirectly, incur create, incur, issue, assume, guaranty or guarantee otherwise become directly or assume any Indebtedness other than indirectly liable, contingently or otherwise, with respect to (x) Permitted Indebtedness and (ycollectively "incur") any additional Indebtedness (other than Indebtedness described in clause (iv) of Indebtedness, and the definition of “Permitted Indebtedness”) that (1) either (A) does Issuer shall not, and shall not contain any issuances of any equity securities of the Company or permit any of its Restricted Subsidiaries to, issue any Disqualified Stock; provided, however, that the Issuer and its Restricted Subsidiaries may incur Indebtedness (other than the Warrants) and such Indebtedness may be incurred pursuant to this paragraph without regard, in the event thatcase of any particular category of Indebtedness, as to any limitation set forth with respect to Indebtedness of such category in any of items (i) through (xviii) set forth below in this Section 4.09) or issue shares of Disqualified Stock if: (i) no Default or Event of Default shall have occurred and be continuing at the time of or after giving effect to such incurrence or issuance; and (ii) after giving effect to such incurrence or issuance, the Ratio of Cash Flow to Fixed Charges of the applicable time of determination, the Company shall have Issuer would not yet obtained the Stockholder Approval be less than 1.5:1 (as defined in the Exchange Agreement), or (B) does not contain any material equity component in the event that, as of the applicable time of determination, the Company shall have, calculated on or prior a pro forma basis to include such time, obtained the Stockholder Approval, Indebtedness and (2) the ratio of Consolidated Funded Indebtedness of the Company and its Subsidiaries to TTM EBITDA of the Company and its Subsidiaries for the twelve month period most recently ended (as measured related cash flows as of the end of the most recently completed recent fiscal quarter) does not exceed 3.50 quarter of the Issuer with respect to 1.00 (both immediately prior which financial statements of the Issuer have been furnished to the incurrenceTrustee pursuant to Section 4.03 hereof.) The provisions of the first paragraph of this Section 4.09 will not apply to the incurrence of any of the following items of Indebtedness (collectively "Permitted Debt"): (i) the incurrence by the Issuer or any of its Restricted Subsidiaries of Indebtedness under one or more New Credit Facilities, guarantee or assumption of such additional Indebtedness and immediately after giving effect thereto). For the avoidance of doubt, this Note and the Other Notes shall issuance of letters of credit thereunder from time to time, in an aggregate principal or stated amount outstanding at any time not be included in the incurred indebtedness calculation of clause Section 13(b)(i)(y) above.to exceed $60 million; (ii) the incurrence by the Issuer or any of its Restricted Subsidiaries of Existing Indebtedness; (iii) the incurrence by the Issuer or any of its Restricted Subsidiaries of Indebtedness pursuant to the terms and provisions, or in connection with the implementation, of the Plan; (iv) the incurrence by the Issuer of Indebtedness represented by the Notes and the Tranche B Notes; (v) the incurrence of Non-Recourse Debt by any Operating Company or Investment Vehicle; (vi) Permitted Sale/Leaseback Transactions; (vii) the incurrence by the Issuer or any of its Restricted Subsidiaries of Lease Obligations under leases for equipment or other personal property not to exceed $10 million in aggregate principal or stated amount outstanding at any time; (viii) the incurrence by the Issuer or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness; (ix) Indebtedness incurred by the Issuer or any of its Restricted Subsidiaries in respect of surety bonds, performance or bid bonds or letters of credit issued in the ordinary course of business, including, without limitation, those in respect of workers' compensation claims or self-insurance, in an aggregate amount outstanding at any time not to exceed $25 million; (x) the incurrence by the Issuer or any of its Restricted Subsidiaries of intercompany Indebtedness between or among the Issuer and any of its Restricted Subsidiaries (subject to the provisions of clauses (i) and (ii) of item (a) of the definition of the term "Permitted Investments" herein), provided that such Indebtedness is expressly subordinated to the prior payment in full in cash of all Obligations with respect to the Notes; (xi) the Guaranty by the Issuer or any of its Restricted Subsidiaries of Indebtedness of the Issuer or a Restricted Subsidiary of the Issuer (other than a Guaranty by the Issuer of Indebtedness of an Operating Company or an Investment Vehicle or a Guaranty by a Restricted Subsidiary of Indebtedness of an Operating Company or an Investment Vehicle that is not a member of the same Operating Company Group as the guaranteeing Subsidiary) that was permitted by this Indenture to be incurred; (xii) Indebtedness of any Restricted Subsidiary of the Issuer existing at the time such Person becomes a Restricted Subsidiary of the Issuer (except for any such Indebtedness incurred in contemplation of or to finance the acquisition of such Subsidiary); (xiii) Indebtedness under any Swap; (xiv) the incurrence by the Issuer or any of its Restricted Subsidiaries of Indebtedness under short-term overdraft lines of credit or similar arrangements entered into in the ordinary course of business, in each case associated with the Issuer's cash management program; (xv) the incurrence by Service Companies of Indebtedness in respect of credit card obligations or services incurred in the ordinary course of business; (xvi) the incurrence by an IPP Entity, or by any other Restricted Subsidiary of the Issuer that is the seller of Equity Interests of any such IPP Entity, in each case pursuant to or in connection with an IPP Sale Agreement, of Indebtedness which (A) is provided for in such Agreement or (B) the Board of Directors has determined is necessary or appropriate for the purpose of effectuating such Asset Sale; (xvii) the incurrence by the Issuer or any of its Restricted Subsidiaries of Indebtedness to finance insurance premiums; and (xviii) the incurrence by the Issuer or any of its Restricted Subsidiaries of additional Indebtedness, in an aggregate principal amount (or accreted value, if applicable) at any time outstanding not to exceed $5 million. For purposes of determining compliance with this Section 13(b)4.09, “Consolidated Funded Indebtedness” and “TTM EBITDA” shall have if an item of Indebtedness meets the meanings set forth criteria of more than one of the categories of Permitted Debt described in Section 29 hereof.clauses (i) through (xviii) above or is entitled to be incurred pursuant to the first paragraph of this

Incurrence of Indebtedness. (ia) So long as this Note is outstanding, the The Company shall will not, and the Company shall will not permit any of its Subsidiaries Subsidiary to, directly or indirectly, incur or create, incur, issue, assume, guarantee or assume any Indebtedness other than otherwise become directly or indirectly liable, contingently or otherwise, with respect to (x) Permitted Indebtedness and (ycollectively, "INCUR") any additional Indebtedness (other than Indebtedness described in clause (iv) of the definition of “Permitted Indebtedness”) ; PROVIDED, HOWEVER, that (1) either (A) does not contain any issuances of any equity securities of the Company or any of its Subsidiaries Guarantor may incur Indebtedness if: (other than the Warrantsi) such Indebtedness is unsecured and expressly subordinated in the event that, as of the applicable time of determination, the Company shall have not yet obtained the Stockholder Approval (as defined in the Exchange Agreement), or (B) does not contain any material equity component in the event that, as of the applicable time of determination, the Company shall have, on or prior to such time, obtained the Stockholder Approval, and (2) the ratio of Consolidated Funded Indebtedness of the Company and its Subsidiaries to TTM EBITDA of the Company and its Subsidiaries for the twelve month period most recently ended (as measured as of the end of the most recently completed fiscal quarter) does not exceed 3.50 to 1.00 (both immediately prior writing to the incurrence, guarantee or assumption prior payment in full in cash of such additional Indebtedness and immediately after giving effect thereto). For the avoidance of doubt, this Note and the Other Notes shall not be included in the incurred indebtedness calculation of clause Section 13(b)(i)(y) above.all Securities; and (ii) For purposes the final maturity date of this such Indebtedness is at least 91 days after the final maturity date of the Securities; and (b) The provisions of Section 13(b8.15(a) will not apply to the issuance or incurrence of any of the following Indebtedness: (i) the incurrence by the Company and any Guarantor of the Indebtedness listed on Schedule 8.15 hereto; (ii) the incurrence by the Company and any Guarantor of Indebtedness of the type described in Section 8.04(2); and (iii) the incurrence by the Company or any Guarantor of Indebtedness that is payable to the Company or any Guarantor and is evidenced by an intercompany note 37 which has been pledged to secure the Secured Obligations pursuant to the Collateral Documents to the extent required by the terms of the Collateral Documents. (c) Notwithstanding the provisions of Section 8.15(a), “Consolidated Funded Indebtedness” after the Company has paid or redeemed at least $15,000,000 of the principal amount of the Series A Notes pursuant to Section 3.05(a), 3.05(c) or 3.06(b), the Company may issue additional series of Securities under this Indenture provided that any such additional series: (i) shall rank pari passu in priority and “TTM EBITDA” right of payment with the Series A Notes, the Series B Notes, the Series C Notes and all other series of Securities issued hereunder; (ii) shall have not contain terms more favorable in any respect to the meanings set forth holders of such series than the terms of the Series A Notes, including but not limited to earlier maturity date, liquidation preference, redemption payment amount, frequency of interest payments, additional guarantors, additional collateral or other credit support (except as permitted in Section 29 hereof(iii) below); and (iii) shall not accrue interest at a rate higher than ten percent (10%) per annum, provided, however, that the Company may issue additional series of Securities with an interest rate higher than ten percent (10%) per annum if the Company increases the interest rate payable on the Series A Notes to such higher interest rate.

Incurrence of Indebtedness. (i) So long as this Note is outstanding, the Company The Issuer shall not, and the Company shall not permit any of its Restricted Subsidiaries to, directly or indirectly, incur create, incur, issue, assume, guaranty or guarantee otherwise become directly or assume any Indebtedness other than indirectly liable, contingently or otherwise, with respect to (x) Permitted Indebtedness and (ycollectively "incur") any additional Indebtedness (other than Indebtedness described in clause (iv) of Indebtedness, and the definition of “Permitted Indebtedness”) that (1) either (A) does Issuer shall not, and shall not contain any issuances of any equity securities of the Company or permit any of its Restricted Subsidiaries to, issue any Disqualified Stock; provided, however, that the Issuer and its Restricted Subsidiaries may incur Indebtedness (other than the Warrants) and such Indebtedness may be incurred pursuant to this paragraph without regard, in the event thatcase of any particular category of Indebtedness, as to any limitation set forth with respect to Indebtedness of such category in any of items (i) through (xviii) set forth below in this Section 4.09) or issue shares of Disqualified Stock if: (i) no Default or Event of Default shall have occurred and be continuing at the time of or after giving effect to such incurrence or issuance; and (ii) after giving effect to such incurrence or issuance, the Ratio of Cash Flow to Fixed Charges of the applicable time of determination, the Company shall have Issuer would not yet obtained the Stockholder Approval be less than 1.5:1 (as defined in the Exchange Agreement), or (B) does not contain any material equity component in the event that, as of the applicable time of determination, the Company shall have, calculated on or prior a pro forma basis to include such time, obtained the Stockholder Approval, Indebtedness and (2) the ratio of Consolidated Funded Indebtedness of the Company and its Subsidiaries to TTM EBITDA of the Company and its Subsidiaries for the twelve month period most recently ended (as measured related cash flows as of the end of the most recently completed recent fiscal quarter) does not exceed 3.50 quarter of the Issuer with respect to 1.00 (both immediately prior which financial statements of the Issuer have been furnished to the incurrenceTrustee pursuant to Section 4.03 hereof.) The provisions of the first paragraph of this Section 4.09 will not apply to the incurrence of any of the following items of Indebtedness (collectively "Permitted Debt"): (i) the incurrence by the Issuer or any of its Restricted Subsidiaries of Indebtedness under one or more New Credit Facilities, guarantee or assumption of such additional Indebtedness and immediately after giving effect thereto). For the avoidance of doubt, this Note and the Other Notes shall issuance of letters of credit thereunder from time to time, in an aggregate principal or stated amount outstanding at any time not be included in the incurred indebtedness calculation of clause Section 13(b)(i)(y) above.to exceed $60 million; (ii) the incurrence by the Issuer or any of its Restricted Subsidiaries of Existing Indebtedness; (iii) the incurrence by the Issuer or any of its Restricted Subsidiaries of Indebtedness pursuant to the terms and provisions, or in connection with the implementation, of the Plan; (iv) the incurrence by the Issuer of Indebtedness represented by the Notes and the Tranche A Notes; (v) the incurrence of Non-Recourse Debt by any Operating Company or Investment Vehicle; (vi) Permitted Sale/Leaseback Transactions; (vii) the incurrence by the Issuer or any of its Restricted Subsidiaries of Lease Obligations under leases for equipment or other personal property not to exceed $10 million in aggregate principal or stated amount outstanding at any time; (viii) the incurrence by the Issuer or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness; (ix) Indebtedness incurred by the Issuer or any of its Restricted Subsidiaries in respect of surety bonds, performance or bid bonds or letters of credit issued in the ordinary course of business, including, without limitation, those in respect of workers' compensation claims or self-insurance, in an aggregate amount outstanding at any time not to exceed $25 million; (x) the incurrence by the Issuer or any of its Restricted Subsidiaries of intercompany Indebtedness between or among the Issuer and any of its Restricted Subsidiaries (subject to the provisions of clauses (i) and (ii) of item (a) of the definition of the term "Permitted Investments" herein), provided that such Indebtedness is expressly subordinated to the prior payment in full in cash of all Obligations with respect to the Notes; (xi) the Guaranty by the Issuer or any of its Restricted Subsidiaries of Indebtedness of the Issuer or a Restricted Subsidiary of the Issuer (other than a Guaranty by the Issuer of Indebtedness of an Operating Company or an Investment Vehicle or a Guaranty by a Restricted Subsidiary of Indebtedness of an Operating Company or an Investment Vehicle that is not a member of the same Operating Company Group as the guaranteeing Subsidiary) that was permitted by this Indenture to be incurred; (xii) Indebtedness of any Restricted Subsidiary of the Issuer existing at the time such Person becomes a Restricted Subsidiary of the Issuer (except for any such Indebtedness incurred in contemplation of or to finance the acquisition of such Subsidiary); (xiii) Indebtedness under any Swap; (xiv) the incurrence by the Issuer or any of its Restricted Subsidiaries of Indebtedness under short-term overdraft lines of credit or similar arrangements entered into in the ordinary course of business, in each case associated with the Issuer's cash management program; (xv) the incurrence by Service Companies of Indebtedness in respect of credit card obligations or services incurred in the ordinary course of business; (xvi) the incurrence by an IPP Entity, or by any other Restricted Subsidiary of the Issuer that is the seller of Equity Interests of any such IPP Entity, in each case pursuant to or in connection with an IPP Sale Agreement, of Indebtedness which the Board of Directors has determined is necessary or appropriate for the purpose of effectuating such Asset Sale; (xvii) the incurrence by the Issuer or any of its Restricted Subsidiaries of Indebtedness to finance insurance premiums; and (xviii) the incurrence by the Issuer or any of its Restricted Subsidiaries of additional Indebtedness, in an aggregate principal amount (or accreted value, if applicable) at any time outstanding not to exceed $5 million. For purposes of determining compliance with this Section 13(b)4.09, “Consolidated Funded Indebtedness” and “TTM EBITDA” shall have if an item of Indebtedness meets the meanings set forth criteria of more than one of the categories of Permitted Debt described in Section 29 hereof.clauses (i) through (xviii) above or is entitled to be incurred pursuant to the first paragraph of this

Incurrence of Indebtedness. (ia) So long as this Note is outstanding, the The Company shall will not, and the Company shall will not permit any of its Restricted Subsidiaries to, directly or indirectly, incur or create, incur, issue, assume, guarantee or assume otherwise become directly or indirectly liable, contingently or otherwise, with respect to (collectively, “incur”) any Indebtedness other than (xincluding Acquired Debt); provided, however, that the Company and any Guarantor may incur Indebtedness (including Acquired Debt), if the 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 would have been at least 2.0 to 1, determined on a pro forma basis (including a pro forma application of the Net Cash Proceeds therefrom), as if the additional Indebtedness had been incurred at the beginning of such four-quarter period. (b) The foregoing paragraph (a) of this Section 4.3 will not prohibit the incurrence of any of the following items of Indebtedness (collectively, “Permitted Indebtedness”): (1) the incurrence by the Company and any Guarantor of Indebtedness under one or more Credit Facilities; provided that (a) with respect to Priority Lien Debt or Parity Lien Debt incurred under this clause (1)(a), the aggregate principal amount of all such Indebtedness outstanding at any time (with outstanding letters of credit being deemed to have a principal amount equal to the stated amount thereof) does not exceed the greater of (i) $950.0 million, (ii) the Borrowing Base in effect at the time of incurrence if incurred under the Credit Agreement, and (yiii) 30.0% of Modified ACNTA at the time of incurrence, and (b) with respect to all other Indebtedness under Credit Facilities incurred under this clause (1)(b), the aggregate principal amount of all such Indebtedness outstanding at any additional time does not exceed the greater of (i) $750.0 million and (ii) 30.0% of ACNTA as of the date of such incurrence; (2) the incurrence by the Company and its Restricted Subsidiaries of Existing Indebtedness (other than Indebtedness described in under clause (iv1), (3) or (6) of this paragraph (b)); (3) the definition incurrence by the Company and the Guarantors of “Permitted Indebtedness”Indebtedness represented by (a) that the Initial Securities and the Subsidiary Guarantees, or (1b) either other Parity Lien Debt (Aincluding Additional Securities) does in an aggregate amount at any time outstanding (together, with any Indebtedness incurred to refinance the foregoing) not contain to exceed $150.0 million less the principal amount of the Initial Securities; (4) the incurrence by the Company or any issuances of its Restricted Subsidiaries of Indebtedness represented by Capital Lease Obligations, mortgage financings, industrial revenue bonds, purchase money obligations or other Indebtedness or preferred stock, or synthetic lease obligations, in each case, incurred for the purpose of financing all or any equity securities part of the purchase price or cost of design, development, construction, installation or improvement of property (real or personal and including Capital Stock), plant or equipment used in the business of the Company or any of its Restricted Subsidiaries (in each case, whether through the direct purchase of such assets or the Equity Interests of any Person owning such assets), in an aggregate principal amount, taken together with Permitted Refinancing Indebtedness in respect thereof, not to exceed $50.0 million at any time outstanding; (5) the incurrence by the Company or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the Net Cash Proceeds of which are used to refund, refinance or replace, Indebtedness (other than intercompany Indebtedness) that was permitted by this Indenture to be incurred under paragraph (a) of this Section 4.3 covenant or clause (2), (3), (4) or (13) or this clause (5) of this paragraph (b); (6) the Warrantsincurrence by the Company or any of its Restricted Subsidiaries of intercompany Indebtedness between or among the Company and any of its Restricted Subsidiaries; provided, however, that: (A) (i) if the Company is the obligor on such Indebtedness, such Indebtedness must be expressly subordinated to the prior payment in full in cash of all obligations with respect to the Securities, and (ii) if a Guarantor is the obligor of such Indebtedness, such Indebtedness must be expressly subordinated to the prior payment in full in cash of all obligations of such Guarantor with respect to its Subsidiary Guarantee, and (B) (i) 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 Restricted Subsidiary thereof and (ii) any sale or other transfer of any such Indebtedness to a Person that is not either the Company or a Restricted Subsidiary thereof, 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, that was not permitted by this clause; (7) in-kind obligations relating to net oil and natural gas balancing positions arising in the ordinary course of business; (8) the accrual of interest accretion or amortization of original issue discount, the payment of interest on any Indebtedness in the form of additional Indebtedness with the same terms, and the payment of dividends on Disqualified Stock, in the form of additional shares of the same class of Disqualified Stock; (9) any obligations in respect of completion bonds, performance bonds, bid bonds, appeal bonds, surety bonds, bankers acceptances, letters of credit, insurance obligations or bonds and other similar bonds and obligations incurred by the Company or any Restricted Subsidiary in the ordinary course of business and any Guarantees or letters of credit functioning as or supporting any of the foregoing bonds or obligations; (10) any obligation (including deferred premiums) under Interest Rate Agreements, Currency Agreements and Commodity Agreements; provided, that such Interest Rate Agreements, Currency Agreements and Commodity Agreements are related to business transactions of the Company or its Restricted Subsidiaries and are entered into for bona fide hedging purposes of the Company or its Restricted Subsidiaries (as determined in good faith by the Board of Directors or senior management of the Company); (11) any obligation arising from agreements of the Company or a Restricted Subsidiary providing for indemnification, Guarantee, adjustment of purchase price, holdback, contingency payment obligation based on the performance of the acquired or disposed asset or similar obligations, in each case, incurred or assumed in connection with the acquisition or disposition of any business, asset or Capital Stock of a Restricted Subsidiary; (12) any obligation arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business, provided, however, that such Indebtedness is extinguished within five Business Days of incurrence; (13) the incurrence by the Company or any of its Restricted Subsidiaries of Permitted Acquisition Indebtedness; (14) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness arising from Guarantees of Indebtedness of joint ventures at any time outstanding not to exceed the greater of $50.0 million and 2.0% of ACNTA determined as of the date of incurrence of such Indebtedness after giving pro forma effect to such incurrence and the application of proceeds thereof; and (15) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness in addition to Indebtedness permitted by clauses (1) through (14) above of this paragraph (b) or the first paragraph (a) of this Section 4.3 above in an aggregate principal amount (or accreted value, as applicable) at any time outstanding not to exceed the greater of (a) $50.0 million and (b) 2.0% of the Company’s ACNTA, determined as of the date of incurrence of such Indebtedness after giving effect to such incurrence and the application of the proceeds therefrom. (c) For purposes of determining compliance with this Section 4.3: (1) in the event that, as that an item of proposed Indebtedness meets the criteria of more than one of the applicable time categories of determinationPermitted Indebtedness described in clauses (1) through (15) of paragraph (b) above, or is entitled to be incurred pursuant to paragraph (a) of this Section 4.3, the Company shall have not yet obtained will be permitted to classify such item of Indebtedness (or any portion thereof) on the Stockholder Approval (as defined in the Exchange Agreement)date of its incurrence and, or (B) does not contain any material equity component in the event that, as of the applicable time of determination, the Company shall have, on or prior subject to such time, obtained the Stockholder Approval, and clause (2) below may later reclassify such item of Indebtedness (or any portion thereof), in any manner that complies with this covenant, and only be required to include the ratio amount and type of Consolidated Funded such Indebtedness in one of such clauses or may include the amount and type of such Indebtedness partially in one such clause and partially in one or more other such clauses; (2) all Indebtedness outstanding on the date of this Indenture under the Credit Agreement shall be deemed incurred under clause (1) of paragraph (b) of this Section 4.3 and may not be reclassified; (3) Guarantees of, or obligations in respect of letters of credit relating to, Indebtedness which is otherwise included in the determination of a particular amount of Indebtedness shall not be included; (4) if obligations in respect of letters of credit are incurred pursuant to the Credit Facility and are being treated as incurred pursuant to paragraph (b)(1) above and the letters of credit relate to other Indebtedness, then such other Indebtedness shall not be included; (5) the amount of Indebtedness issued at a price that is less than the principal amount thereof will be equal to the amount of the liability in respect thereof determined in accordance with GAAP; and (6) Indebtedness of any Person existing at the time such Person becomes a Restricted Subsidiary shall be deemed to have been incurred by the Company and the Restricted Subsidiary at the time such Person becomes a Restricted Subsidiary; and (7) the accrual of interest or dividends, the accretion or amortization of original issue discount, the payment of interest on any Indebtedness in the form of additional Indebtedness with the same terms, the reclassification of preferred equity as Indebtedness due to a change in accounting principles, the payment of dividends on Disqualified Stock or preferred equity in the form of additional shares of the same class of Disqualified Stock or preferred equity will not be deemed to be an incurrence of Indebtedness or an issuance of Disqualified Stock or preferred equity for purposes of this covenant; provided, in each such case (other than preferred stock that is not Disqualified Stock), that the amount of any such accrual, accretion or payment is included in Fixed Charges of the Company and its Subsidiaries to TTM EBITDA of the Company and its Subsidiaries for the twelve month period most recently ended (as measured as of the end of the most recently completed fiscal quarter) does not exceed 3.50 to 1.00 (both immediately prior to the incurrence, guarantee or assumption of such additional Indebtedness and immediately after giving effect thereto). For the avoidance of doubt, this Note and the Other Notes shall not be included in the incurred indebtedness calculation of clause Section 13(b)(i)(y) aboveaccrued. (iid) For purposes of determining compliance with any U.S. dollar-denominated restriction on the incurrence of Indebtedness, the U.S. dollar-equivalent principal amount of Indebtedness denominated in a foreign currency shall be calculated based on the relevant currency exchange rate in effect on the date such Indebtedness was incurred, in the case of term Indebtedness, or first committed, in the case of revolving credit Indebtedness; provided that if such Indebtedness is incurred to refinance other Indebtedness denominated in a foreign currency, and such refinancing would cause the applicable U.S. dollar-dominated restriction to be exceeded if calculated at the relevant currency exchange rate in effect on the date of such refinancing, such U.S. dollar-dominated restriction shall be deemed not to have been exceeded so long as the principal amount of such refinancing Indebtedness does not exceed the principal amount of such Indebtedness being refinanced. Notwithstanding any other provision of this Section 13(b)covenant, “Consolidated Funded the maximum amount of Indebtedness that the Company may incur pursuant to this covenant shall not be deemed to be exceeded solely as a result of fluctuations in the exchange rate of currencies. The principal amount of any Permitted Refinancing Indebtedness” and “TTM EBITDA” , if incurred in a different currency from the Indebtedness being refinanced, shall have be calculated based on the meanings set forth currency exchange rate applicable to the currencies in Section 29 hereofwhich such Permitted Refinancing Indebtedness is denominated that is in effect on the date of such refinancing.

Incurrence of Indebtedness. (i) So long as this Note is outstanding, the Company The Issuer shall not, and the Company shall not permit any of its Restricted Subsidiaries to, directly or indirectly, incur create, incur, issue, assume, guaranty or guarantee otherwise become directly or assume any Indebtedness other than indirectly liable, contingently or otherwise, with respect to (x) Permitted Indebtedness and (ycollectively "incur") any additional Indebtedness (other than Indebtedness described in clause (iv) of Indebtedness, and the definition of “Permitted Indebtedness”) that (1) either (A) does Issuer shall not, and shall not contain any issuances of any equity securities of the Company or permit any of its Restricted Subsidiaries to, issue any Disqualified Stock; provided, however, that the Issuer and its Restricted Subsidiaries may incur Indebtedness (other than the Warrants) and such Indebtedness may be incurred pursuant to this paragraph without regard, in the event thatcase of any particular category of Indebtedness, as to any limitation set forth with respect to Indebtedness of such category in any of items (i) through (xviii) set forth below in this Section 4.09) or issue shares of Disqualified Stock if: (i) no Default or Event of Default shall have occurred and be continuing at the time of or after giving effect to such incurrence or issuance; and (ii) after giving effect to such incurrence or issuance, the Ratio of Cash Flow to Fixed Charges of the applicable time of determination, the Company shall have Issuer would not yet obtained the Stockholder Approval be less than 1.5:1 (as defined in the Exchange Agreement), or (B) does not contain any material equity component in the event that, as of the applicable time of determination, the Company shall have, calculated on or prior a pro forma basis to include such time, obtained the Stockholder Approval, Indebtedness and (2) the ratio of Consolidated Funded Indebtedness of the Company and its Subsidiaries to TTM EBITDA of the Company and its Subsidiaries for the twelve month period most recently ended (as measured related cash flows as of the end of the most recently completed recent fiscal quarter) does not exceed 3.50 quarter of the Issuer with respect to 1.00 (both immediately prior which financial statements of the Issuer have been furnished to the incurrenceTrustee pursuant to Section 4.03 hereof.) The provisions of the first paragraph of this Section 4.09 will not apply to the incurrence of any of the following items of Indebtedness (collectively "Permitted Debt"): (i) the incurrence by the Issuer or any of its Restricted Subsidiaries of Indebtedness under one or more New Credit Facilities, guarantee or assumption of such additional Indebtedness and immediately after giving effect thereto). For the avoidance of doubt, this Note and the Other Notes shall issuance of letters of credit thereunder from time to time, in an aggregate principal or stated amount outstanding at any time not be included in the incurred indebtedness calculation of clause Section 13(b)(i)(y) above.to exceed $60 million; (ii) the incurrence by the Issuer or any of its Restricted Subsidiaries of Existing Indebtedness; (iii) the incurrence by the Issuer or any of its Restricted Subsidiaries of Indebtedness pursuant to the terms and provisions, or in connection with the implementation, of the Plan; (iv) the incurrence by the Issuer of Indebtedness represented by the Notes and the Tranche B Notes; (v) the incurrence of Non-Recourse Debt by any Operating Company or Investment Vehicle; (vi) Permitted Sale/Leaseback Transactions; (vii) the incurrence by the Issuer or any of its Restricted Subsidiaries of Lease Obligations under leases for equipment or other personal property not to exceed $10 million in aggregate principal or stated amount outstanding at any time; (viii) the incurrence by the Issuer or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness; (ix) Indebtedness incurred by the Issuer or any of its Restricted Subsidiaries in respect of surety bonds, performance or bid bonds or letters of credit issued in the ordinary course of business, including, without limitation, those in respect of workers' compensation claims or self-insurance, in an aggregate amount outstanding at any time not to exceed $25 million; (x) the incurrence by the Issuer or any of its Restricted Subsidiaries of intercompany Indebtedness between or among the Issuer and any of its Restricted Subsidiaries (subject to the provisions of clauses (i) and (ii) of item (a) of the definition of the term "Permitted Investments" herein), provided that such Indebtedness is expressly subordinated to the prior payment in full in cash of all Obligations with respect to the Notes; (xi) the Guaranty by the Issuer or any of its Restricted Subsidiaries of Indebtedness of the Issuer or a Restricted Subsidiary of the Issuer (other than a Guaranty by the Issuer of Indebtedness of an Operating Company or an Investment Vehicle or a Guaranty by a Restricted Subsidiary of Indebtedness of an Operating Company or an Investment Vehicle that is not a member of the same Operating Company Group as the guaranteeing Subsidiary) that was permitted by this Indenture to be incurred; (xii) Indebtedness of any Restricted Subsidiary of the Issuer existing at the time such Person becomes a Restricted Subsidiary of the Issuer (except for any such Indebtedness incurred in contemplation of or to finance the acquisition of such Subsidiary); (xiii) Indebtedness under any Swap; (xiv) the incurrence by the Issuer or any of its Restricted Subsidiaries of Indebtedness under short-term overdraft lines of credit or similar arrangements entered into in the ordinary course of business, in each case associated with the Issuer's cash management program; (xv) the incurrence by Service Companies of Indebtedness in respect of credit card obligations or services incurred in the ordinary course of business; (xvi) the incurrence by an IPP Entity, or by any other Restricted Subsidiary of the Issuer that is the seller of Equity Interests of any such IPP Entity, in each case pursuant to or in connection with an IPP Sale Agreement, of Indebtedness which the Board of Directors has determined is necessary or appropriate for the purpose of effectuating such Asset Sale; (xvii) the incurrence by the Issuer or any of its Restricted Subsidiaries of Indebtedness to finance insurance premiums; and (xviii) the incurrence by the Issuer or any of its Restricted Subsidiaries of additional Indebtedness, in an aggregate principal amount (or accreted value, if applicable) at any time outstanding not to exceed $5 million. (xix) For purposes of determining compliance with this Section 4.09, if an item of Indebtedness meets the criteria of more than one of the categories of Permitted Debt described in clauses (i) through (xviii) above or is entitled to be incurred pursuant to the first paragraph of this Section 4.09, the Issuer may, in its sole discretion, classify such item of Indebtedness in any manner that complies with this Section 4.09, and such item of Indebtedness will be treated as having been incurred pursuant to one or more of such clauses and/or pursuant to the first paragraph hereof in accordance with such classification. Neither the accrual of interest, nor the accretion of accreted value, will be deemed to be an incurrence of Indebtedness for purposes of this Section 13(b), “Consolidated Funded Indebtedness” and “TTM EBITDA” shall have the meanings set forth in Section 29 hereof4.09.

Incurrence of Indebtedness. (ia) So long as this Note is outstanding, the The Parent Company shall not, and the Company shall not permit any of its Restricted Subsidiaries to, directly or indirectly, incur or create, incur, issue, assume, guarantee or assume otherwise become directly or indirectly liable, contingently or otherwise, with respect to (collectively, “incur”) any Indebtedness other than (x) Permitted including Acquired Debt); provided, however, that the Parent Company and any Restricted Subsidiary may incur Indebtedness and (y) any including Acquired Debt), if the Fixed Charge Coverage Ratio of the Parent Company for the Parent 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 would have been at least 2 to 1, determined on a pro forma basis (including a pro forma application of the net proceeds therefrom), as if the additional Indebtedness had been incurred at the beginning of such four-quarter period. (b) Section 4.09(a) shall not prohibit the incurrence of any of the following items of Indebtedness (collectively, “Permitted Debt”): (i) the incurrence by the Parent Company and any Restricted Subsidiary of Indebtedness under the ABL Facility (including amounts outstanding on the Issue Date), other than Senior Priority Obligations (excluding Indebtedness described in represented by the Senior Priority Notes and the related Guarantees permitted by clause (iviii) below) or Permitted Additional Pari Passu Obligations; provided that the aggregate principal amount of all Indebtedness permitted by this clause (i) at any one time outstanding does not exceed $250 million less any repayments actually made thereunder with the Net Proceeds of Asset Sales in accordance with clause (b) of the definition second paragraph of “Permitted Indebtedness”) that Section 4.07; (1) either (A) does not contain any issuances of any equity securities of the Company or any of its Subsidiaries (other than the Warrants) in the event that, as of the applicable time of determination, the Company shall have not yet obtained the Stockholder Approval (as defined in the Exchange Agreement), or (B) does not contain any material equity component in the event that, as of the applicable time of determination, the Company shall have, on or prior to such time, obtained the Stockholder Approval, and (2ii) the ratio of Consolidated Funded Indebtedness of incurrence by the Parent Company and its Restricted Subsidiaries to TTM EBITDA of Existing Indebtedness (excluding amounts outstanding under the Company and its Subsidiaries for ABL Facility at the twelve month period most recently ended (as measured as of the end of the most recently completed fiscal quarter) does not exceed 3.50 to 1.00 (both immediately prior to the incurrence, guarantee or assumption of such additional Indebtedness and immediately after giving effect theretoIssue Date). For the avoidance of doubt, this Note and the Other Notes shall not be included in the incurred indebtedness calculation of clause Section 13(b)(i)(y) above. (ii) For purposes of this Section 13(b), “Consolidated Funded Indebtedness” and “TTM EBITDA” shall have the meanings set forth in Section 29 hereof.;

Incurrence of Indebtedness. (ia) So long as this Note is outstanding, the The Company shall not, and the Company shall not permit any of its Subsidiaries to, directly or indirectly, incur create, incur, assume, guarantee, or guarantee otherwise become directly or assume indirectly liable with respect to, any Indebtedness other than (x) Permitted Indebtedness and (y) any additional Indebtedness (other than Indebtedness described in clause (iv) of Indebtedness, unless on the definition of “Permitted Indebtedness”) that (1) either (A) does not contain any issuances of any equity securities of date the Company or such Subsidiary becomes liable with respect to any of its Subsidiaries (other than the Warrants) in the event that, as of the applicable time of determination, the Company shall have not yet obtained the Stockholder Approval (as defined in the Exchange Agreement), or (B) does not contain any material equity component in the event that, as of the applicable time of determination, the Company shall have, on or prior to such time, obtained the Stockholder Approval, and (2) the ratio of Consolidated Funded Indebtedness of the Company and its Subsidiaries to TTM EBITDA of the Company and its Subsidiaries for the twelve month period most recently ended (as measured as of the end of the most recently completed fiscal quarter) does not exceed 3.50 to 1.00 (both immediately prior to the incurrence, guarantee or assumption of such additional Indebtedness and immediately after giving effect thereto). For the avoidance of doubt, this Note thereto and the Other Notes shall not be included in the incurred indebtedness calculation concurrent retirement of clause Section 13(b)(i)(yany other Indebtedness: (i) above.no Default or Event of Default exists; (ii) (x) at any time from the date hereof until September 30, 2004, the ratio of Consolidated Long Term Debt to Consolidated Total Capitalization does not exceed 0.67 to 1.00, and (y) at any time on or after September 30, 2004, the ratio of Consolidated Long Term Debt to Consolidated Total Capitalization does not exceed 0.65 to 1.00; and (iii) the Interest Coverage Ratio for the period of four consecutive fiscal quarters ending on, or most recently ended prior to, such date (or, with respect to any Indebtedness for which the Company or such Subsidiary becomes liable on or before September 30, 2004, the period from the date hereof to such date) is not less than 2.50 to 1.00; provided; nothing in this Section 10.5(a) shall prevent the Company or its Subsidiaries from creating, incurring, assuming, guaranteeing, or otherwise becoming directly or indirectly liable with respect to Current Debt and Permitted Reimbursement Obligations in an aggregate amount not to exceed $5,000,000 or such greater amount as would be permitted in accordance with clauses (ii) and (iii) of this Section 10.5(a); and provided; nothing in this Section 10.5(a) shall prevent any extension, renewal or refinancing of any Indebtedness of the Company or its Subsidiaries, provided that the principal amount of such Indebtedness outstanding immediately before giving effect to such extension, renewal or refunding is not increased and no Default or Event of Default exists at the time of such extension, renewal or refunding. (b) For the purposes of this Section 13(b)10.5: (i) any Person becoming a Subsidiary after the date hereof shall be deemed, “Consolidated Funded at the time it becomes a Subsidiary, to have incurred all of its then outstanding Indebtedness and pro forma effect shall be given to the earnings of such Person; and (ii) upon the creation, incurrence or assumption of any Indebtedness” , any other Indebtedness shall be deemed to be retired concurrently with such action if (A) such other Indebtedness is retired with the proceeds of such Indebtedness and “TTM EBITDA” shall have the meanings set forth in Section 29 hereof(B) such other Indebtedness is retired within 60 days of such action.

Incurrence of Indebtedness. (i) So long as this Note is outstanding, the Company The Issuer shall not, and the Company shall not permit any of its Restricted Subsidiaries to, directly or indirectly, incur create, incur, issue, assume, guaranty or guarantee otherwise become directly or assume any Indebtedness other than indirectly liable, contingently or otherwise, with respect to (x) Permitted Indebtedness and (ycollectively "incur") any additional Indebtedness (other than Indebtedness described in clause (iv) of Indebtedness, and the definition of “Permitted Indebtedness”) that (1) either (A) does Issuer shall not, and shall not contain any issuances of any equity securities of the Company or permit any of its Restricted Subsidiaries to, issue any Disqualified Stock; provided, however, that the Issuer and its Restricted Subsidiaries may incur Indebtedness (other than the Warrants) and such Indebtedness may be incurred pursuant to this paragraph without regard, in the event thatcase of any particular category of Indebtedness, as to any limitation set forth with respect to Indebtedness of such category in any of items (i) through (xviii) set forth below in this Section 4.09) or issue shares of Disqualified Stock if: (i) no Default or Event of Default shall have occurred and be continuing at the time of or after giving effect to such incurrence or issuance; and (ii) after giving effect to such incurrence or issuance, the Ratio of Cash Flow to Fixed Charges of the applicable time of determination, the Company shall have Issuer would not yet obtained the Stockholder Approval be less than 1.5:1 (as defined in the Exchange Agreement), or (B) does not contain any material equity component in the event that, as of the applicable time of determination, the Company shall have, calculated on or prior a pro forma basis to include such time, obtained the Stockholder Approval, Indebtedness and (2) the ratio of Consolidated Funded Indebtedness of the Company and its Subsidiaries to TTM EBITDA of the Company and its Subsidiaries for the twelve month period most recently ended (as measured related cash flows as of the end of the most recently completed recent fiscal quarter) does not exceed 3.50 quarter of the Issuer with respect to 1.00 (both immediately prior which financial statements of the Issuer have been furnished to the incurrenceTrustee pursuant to Section 4.03 hereof.) The provisions of the first paragraph of this Section 4.09 will not apply to the incurrence of any of the following items of Indebtedness (collectively "Permitted Debt"): (i) the incurrence by the Issuer or any of its Restricted Subsidiaries of Indebtedness under one or more New Credit Facilities, guarantee or assumption of such additional Indebtedness and immediately after giving effect thereto). For the avoidance of doubt, this Note and the Other Notes shall issuance of letters of credit thereunder from time to time, in an aggregate principal or stated amount outstanding at any time not be included in the incurred indebtedness calculation of clause Section 13(b)(i)(y) above.to exceed $60 million; (ii) the incurrence by the Issuer or any of its Restricted Subsidiaries of Existing Indebtedness; (iii) the incurrence by the Issuer or any of its Restricted Subsidiaries of Indebtedness pursuant to the terms and provisions, or in connection with the implementation, of the Plan; (iv) the incurrence by the Issuer of Indebtedness represented by the Notes and the Tranche A Notes; (v) the incurrence of Non-Recourse Debt by any Operating Company or Investment Vehicle; (vi) Permitted Sale/Leaseback Transactions; (vii) the incurrence by the Issuer or any of its Restricted Subsidiaries of Lease Obligations under leases for equipment or other personal property not to exceed $10 million in aggregate principal or stated amount outstanding at any time; (viii) the incurrence by the Issuer or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness; (ix) Indebtedness incurred by the Issuer or any of its Restricted Subsidiaries in respect of surety bonds, performance or bid bonds or letters of credit issued in the ordinary course of business, including, without limitation, those in respect of workers' compensation claims or self-insurance, in an aggregate amount outstanding at any time not to exceed $25 million; (x) the incurrence by the Issuer or any of its Restricted Subsidiaries of intercompany Indebtedness between or among the Issuer and any of its Restricted Subsidiaries (subject to the provisions of clauses (i) and (ii) of item (a) of the definition of the term "Permitted Investments" herein), provided that such Indebtedness is expressly subordinated to the prior payment in full in cash of all Obligations with respect to the Notes; (xi) the Guaranty by the Issuer or any of its Restricted Subsidiaries of Indebtedness of the Issuer or a Restricted Subsidiary of the Issuer (other than a Guaranty by the Issuer of Indebtedness of an Operating Company or an Investment Vehicle or a Guaranty by a Restricted Subsidiary of Indebtedness of an Operating Company or an Investment Vehicle that is not a member of the same Operating Company Group as the guaranteeing Subsidiary) that was permitted by this Indenture to be incurred; (xii) Indebtedness of any Restricted Subsidiary of the Issuer existing at the time such Person becomes a Restricted Subsidiary of the Issuer (except for any such Indebtedness incurred in contemplation of or to finance the acquisition of such Subsidiary); (xiii) Indebtedness under any Swap; (xiv) the incurrence by the Issuer or any of its Restricted Subsidiaries of Indebtedness under short-term overdraft lines of credit or similar arrangements entered into in the ordinary course of business, in each case associated with the Issuer's cash management program; (xv) the incurrence by Service Companies of Indebtedness in respect of credit card obligations or services incurred in the ordinary course of business; (xvi) the incurrence by an IPP Entity, or by any other Restricted Subsidiary of the Issuer that is the seller of Equity Interests of any such IPP Entity, in each case pursuant to or in connection with an IPP Sale Agreement, of Indebtedness which (A) is provided for in such Agreement or (B) the Board of Directors has determined is necessary or appropriate for the purpose of effectuating such Asset Sale; (xvii) the incurrence by the Issuer or any of its Restricted Subsidiaries of Indebtedness to finance insurance premiums; and (xviii) the incurrence by the Issuer or any of its Restricted Subsidiaries of additional Indebtedness, in an aggregate principal amount (or accreted value, if applicable) at any time outstanding not to exceed $5 million. For purposes of determining compliance with this Section 13(b)4.09, “Consolidated Funded Indebtedness” and “TTM EBITDA” shall have if an item of Indebtedness meets the meanings set forth criteria of more than one of the categories of Permitted Debt described in Section 29 hereof.clauses (i) through (xviii) above or is entitled to be incurred pursuant to the first paragraph of this

Incurrence of Indebtedness. (ia) So long as this Note is outstanding, the The Company shall not, and the Company shall not permit any of its Restricted Subsidiaries to, directly or indirectly, incur or create, incur, issue, assume, guarantee or assume any Indebtedness other than otherwise become directly or indirectly liable, contingently or otherwise, with respect to (x) Permitted Indebtedness and (ycollectively, "INCUR") any Indebtedness; PROVIDED, HOWEVER, that the Company and its Restricted Subsidiaries may incur Indebtedness if: (i) the Interest Coverage Ratio for the Company's most recently ended four full fiscal quarters for which internal financial statements are available (or, if internal financial statements for at least four full fiscal quarters since the Issue Date are not available, then the Interest Coverage Ratio shall be calculated with respect to the one, two or three, as appropriate, full fiscal quarters since the Issue Date for which internal financial statements are available) immediately preceding the date on which such additional Indebtedness is incurred would have been at least 1.5 to 1, determined on a pro forma basis (including a pro forma application of the net proceeds therefrom), as if the additional Indebtedness had been incurred at the beginning of such four-quarter period (or shorter period, as appropriate); and (ii) either: (A) such additional Indebtedness (1) has no Stated Maturity of principal until on or after the final Stated Maturity of the Series B Notes, and (2) is not by its terms subject to voluntary prepayment, redemption or call at the option of the Company on or prior to such date; or (B) such additional Indebtedness (1) has no Stated Maturity of principal other than at its final Stated Maturity date, (2) has a final Stated Maturity date not more than two years after its issuance date, and (3) was incurred for the purpose of financing all or any part of the purchase price or carrying cost of CMBS, RMBS, other Trading Assets or other income-producing assets. (b) The provisions of subsection (a) above will not apply to the incurrence of any of the following items of Indebtedness described in clause (collectively, "PERMITTED DEBT"): (i) the incurrence by the Company and its Restricted Subsidiaries of Indebtedness (including letters of credit, with letters of credit being deemed to have a principal amount equal to the maximum potential liability of the Company and its Restricted Subsidiaries thereunder) under the Senior Credit Facility; provided that the aggregate principal amount of all Indebtedness (including letters of credit) outstanding under the Senior Credit Facility after giving effect to such incurrence does not exceed an amount equal to $25.0 million less the aggregate amount of all Net Proceeds of Asset Sales applied to permanently repay any such Senior Credit Facility Indebtedness pursuant to Section 4.10 hereof; (ii) the incurrence by the Company and its Restricted Subsidiaries of the Existing Indebtedness; (iii) the incurrence by the Company of Indebtedness represented by the Notes; (iv) of the definition of “Permitted Indebtedness”) that (1) either (A) does not contain any issuances of any equity securities of incurrence by the Company or any of its Restricted Subsidiaries (other than of Indebtedness represented by Capital Lease Obligations or incurred in similar types of transactions, in each case incurred for the Warrants) purpose of financing all or any part of the purchase price or cost of construction or improvement of property, plant or equipment used in the event that, as business of the applicable Company or such Subsidiary, in an aggregate principal amount not to exceed $400,000 at any time outstanding; (v) so long as no Default or Event of determinationDefault is then continuing, the Company shall have not yet obtained the Stockholder Approval (as defined in the Exchange Agreement), or (B) does not contain any material equity component in the event that, as of the applicable time of determination, incurrence by the Company shall have, on or prior to such time, obtained the Stockholder Approval, and any of its Restricted Subsidiaries of Non-Recourse Debt or Match Funded Indebtedness; (2vi) the ratio guarantee by the Company or any Restricted Subsidiary of Consolidated Funded Indebtedness of the Company and its Subsidiaries or a Restricted Subsidiary that was permitted to TTM EBITDA be incurred by another provision of this Section 4.09; (vii) Indebtedness arising from agreements of the Company or a Restricted Subsidiary providing for indemnification, adjustment of purchase price, assumption or guarantee of nonrecourse liabilities and similar obligations incurred or assumed in connection with the acquisition or disposition of any Restricted Subsidiary or other assets; (viii) the incurrence by the Company or any of its Restricted Subsidiaries for of intercompany Indebtedness between or among the twelve month period most recently ended Company and any of its Restricted Subsidiaries; provided, however, that (as measured as A) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than the end Company or a Restricted Subsidiary thereof and (B) any sale or other transfer of any such Indebtedness to a Person that is not either the most recently completed fiscal quarter) does not exceed 3.50 Company or a Restricted Subsidiary thereof shall be deemed, in each case, to 1.00 (both immediately prior to the incurrence, guarantee or assumption constitute an incurrence of such additional Indebtedness and immediately after giving effect theretoby the Company or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (viii). For ; and (ix) the avoidance incurrence by the Company or any of doubtits Restricted Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to refund, refinance or replace Indebtedness that is either Existing Indebtedness or was permitted by this Note and the Other Notes shall not Indenture to be included in the incurred indebtedness calculation under subsection (a) hereof or clauses (ii), (iii), (iv), (v), (vi), (vii) or (ix) of clause Section 13(b)(i)(y) abovethis subsection (b). (iic) For purposes of determining compliance with this Section 13(b)covenant, “Consolidated Funded Indebtedness” in the event that an item of Indebtedness meets the criteria of more than one of the categories of Permitted Debt described in subsection (b) above or is entitled to be incurred pursuant to subsection (a) above, the Company may classify, and “TTM EBITDA” from time to time re-classify, such item of Indebtedness in any manner that complies with this covenant. Accrual of interest, accretion or amortization of original issue discount, and the payment of interest on any Indebtedness in the form of additional Indebtedness with the same terms will not be deemed to be an incurrence of Indebtedness for purposes of this covenant, but such items shall have not, by virtue of this sentence, be excluded from the meanings set forth scope of the Indebtedness described in Section 29 hereofthe definition of the term "Interest Expense."

Incurrence of Indebtedness. (ia) So long as this Note is outstanding, the Company The Issuer shall not, and the Company shall not permit any of its Subsidiaries to, directly or indirectly, incur create, incur, assume, guaranty or guarantee otherwise become or assume remain directly or indirectly liable with respect to any Indebtedness other than or Contingent Obligations except for the following (x) Permitted Indebtedness and (y) any additional Indebtedness (other than Indebtedness described in clause (iv) of the definition of collectively, “Permitted Indebtedness”) that ): (1) either (A) does not contain any issuances of any equity securities the incurrence by the Issuer and its Subsidiaries of the Company Indebtedness represented by the Notes and the Note Guarantees to be issued on the date hereof; (i) unsecured trade payables not evidenced by a note and arising out of purchases of goods or services in the ordinary course of business and (ii) Indebtedness incurred in the financing of equipment or other personal property used at any Property in the ordinary course of business, provided that (a) each such trade payable is payable not later than ninety (90) days after the original invoice date and is not overdue by more than thirty (30) days and (b) the aggregate amount of such trade payables and Indebtedness relating to financing of equipment and personal property or otherwise referred to in clauses (i) and (ii) above outstanding does not, at any time, exceed $80,000,000 in the aggregate with respect to the Issuer and its Subsidiaries Subsidiaries; and (other 3) the (i) incurrence of unsecured Indebtedness and (ii) issuance of Additional Notes (and the related Note Guarantees) by the Issuer under this Indenture; provided that the Issuer’s Debt to Net Cash Flow Ratio at the time of the incurrence of such unsecured Indebtedness or issuance of such Additional Notes, as the case may be, after giving pro forma effect to such incurrence or issuance as of such date and to the use of proceeds from such incurrence or issuance, as if the same had occurred at the beginning of the most recently ended four full fiscal quarter period for which internal Financial Statements of the Issuer are available, would have been no greater than the Warrants4.5 to 1. (b) For purposes of determining compliance with this Section 4.09, in the event thatthat an item of proposed Indebtedness meets the criteria of more than one of the categories of Permitted Indebtedness described in clauses (1) through (3) above, the Issuer will be permitted to classify such item of Indebtedness on the date of its incurrence, or later reclassify all or a portion of such item of Indebtedness, in any manner that complies with this Section 4.09. Accrual of original issue discount shall not be deemed to be an incurrence of Indebtedness. (c) The amount of any Indebtedness outstanding as of any date will be: (1) the applicable time accreted value of determinationthe Indebtedness, the Company shall have not yet obtained the Stockholder Approval (as defined in the Exchange Agreement), or (B) does not contain case of any material equity component in the event that, as of the applicable time of determination, the Company shall have, on or prior to such time, obtained the Stockholder Approval, and Indebtedness issued with original issue discount; and (2) the ratio of Consolidated Funded Indebtedness principal amount of the Company and its Subsidiaries to TTM EBITDA of the Company and its Subsidiaries for the twelve month period most recently ended (as measured as of the end of the most recently completed fiscal quarter) does not exceed 3.50 to 1.00 (both immediately prior to the incurrenceIndebtedness, guarantee or assumption of such additional Indebtedness and immediately after giving effect thereto). For the avoidance of doubt, this Note and the Other Notes shall not be included in the incurred indebtedness calculation case of clause Section 13(b)(i)(y) aboveany other Indebtedness. (ii) For purposes of this Section 13(b), “Consolidated Funded Indebtedness” and “TTM EBITDA” shall have the meanings set forth in Section 29 hereof.

Incurrence of Indebtedness. (ia) So long as this Note is outstanding, the Company The Authority shall not, and the Company shall not permit any of its Subsidiaries to, directly or indirectly, incur or create, incur, issue, assume, guarantee or assume otherwise become directly or indirectly liable, contingently or otherwise, with respect to (collectively, "incur") any Indebtedness; provided, however, that the Authority may incur Indebtedness other if: (1) the Fixed Charge Coverage Ratio for the Authority'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 would have been at least 2.5 to 1.0, determined on a pro forma basis (including a pro forma application of the net proceeds therefrom), as if the additional Indebtedness had been incurred at the beginning of such four-quarter period; and (2) the Indebtedness is expressly subordinated in right of payment to the Notes; provided, however, that this clause (2) shall apply only to Indebtedness to be incurred under this Section 4.08(a) to the extent that such incurrence will cause the aggregate amount of Indebtedness incurred and still outstanding under this Section 4.08(a) immediately after such incurrence to be in excess of $25.0 million; and (3) the Weighted Average Life to Maturity of the Indebtedness is greater than the remaining Weighted Average Life to Maturity of the Notes. (b) The provisions of Section 4.08(a) will not prohibit the incurrence of any of the following items of Indebtedness (collectively, "Permitted Debt"): (1) the incurrence by the Authority of (i) Indebtedness represented by (x) Permitted Indebtedness the Initial Notes and the Exchange Notes and (y) the Senior Subordinated PIK Notes, (ii) its obligations arising under the Collateral Documents to the extent such obligations would represent Indebtedness and (iii) Indebtedness incurred from time to time pursuant to the Subordinated PIK Notes, the Manager Repayment Note, the Manager Agreement or the Letter of Credit Note; (2) the incurrence by the Authority of letters of credit and related reimbursement agreements, bankers acceptances and performance completion bonds (with letters of credit being deemed to have a principal amount equal to the maximum potential liability of the Authority under the related reimbursement or other similar agreement) in an aggregate principal amount not to exceed $2.0 million at any additional Indebtedness (other than Indebtedness described in one time outstanding under this clause (iv2); (3) the incurrence by the Authority of Indebtedness represented by Purchase Money Indebtedness or Capital Lease Obligations incurred in connection with the purchase or capital lease of furniture, fixtures and equipment in an aggregate principal amount or accreted value, as applicable, including all Permitted Refinancing Indebtedness incurred to extend, refinance, renew, replace, defease or refund any Indebtedness incurred pursuant to this clause (3), not to exceed $25.0 million at any time outstanding under this clause (3); provided, that such incurrence does not cause the aggregate amount of Indebtedness outstanding pursuant to this clause (3) and clause (4) of this Section 4.08(b) to exceed $25.0 million; (4) the definition incurrence by the Authority of “any Indebtedness in an aggregate principal amount, or accreted value, as applicable, including all Permitted Indebtedness”Refinancing Indebtedness incurred to extend, refinance, renew, replace, defease or refund any Indebtedness incurred pursuant to this clause (4), not to exceed $5.0 million at any time outstanding under this clause (4); provided, that such incurrence does not cause the aggregate amount of Indebtedness outstanding pursuant to this clause (4) and clause (3) of this Section 4.08(b) to exceed $25.0 million; (5) the incurrence by the Authority of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, defease or refund Indebtedness that was permitted to be incurred under Section 4.08(a) hereof, clause (1), (3) either or (A4) does not contain any issuances of any equity securities this Section 4.08(b) or this clause (5); and (6) the incurrence by the Authority of the Company or any of its Subsidiaries Indebtedness represented by loans from Holdings (other than the WarrantsSubordinated PIK Note); provided, that (A) the payment of principal, interest and premium, if any, on such Indebtedness is expressly subordinate in right of payment to the event that, as of the applicable time of determinationNotes, the Company shall have not yet obtained Senior Subordinated PIK Notes and the Stockholder Approval (as defined in the Exchange Agreement)Manager Repayment Note, or (B) does the maturity date of such Indebtedness occurs after September 14, 2009 and (C) Holdings is not contain entitled to receive any material equity component in the event that, as payment on such Indebtedness until all of the applicable time of determinationAuthority's obligations to the Holders with respect to the Notes, the Company Senior Subordinated PIK Notes and the Manager Repayment Note shall have, on or prior have been paid in full. (c) The Authority shall not incur any Indebtedness (including Permitted Debt) that is contractually subordinated in right of payment to such time, obtained the Stockholder Approval, and (2) the ratio of Consolidated Funded any other Indebtedness of the Company and its Subsidiaries Authority unless such Indebtedness is also contractually subordinated in right of payment to TTM EBITDA the Notes on substantially identical terms; provided, however, that no Indebtedness of the Company and its Subsidiaries for the twelve month period most recently ended (as measured as Authority shall be deemed to be contractually subordinated in right of payment to any other Indebtedness of the end Authority solely by virtue of the most recently completed fiscal quarter) does not exceed 3.50 to 1.00 (both immediately prior to the incurrence, guarantee or assumption of such additional Indebtedness and immediately after giving effect thereto). For the avoidance of doubt, this Note and the Other Notes shall not be included in the incurred indebtedness calculation of clause Section 13(b)(i)(y) abovebeing unsecured. (iid) For purposes of determining compliance with this Section 13(b)4.08, “Consolidated Funded in the event that an item of proposed Indebtedness meets the criteria of more than one of the categories of Permitted Debt described in clauses (1) through (6) of Section 4.08(b) hereof, or is entitled to be incurred pursuant to Section 4.08(a) hereof, the Authority shall be permitted to classify such item of Indebtedness on the date of its incurrence, or later reclassify all or a portion of such item of Indebtedness” and “TTM EBITDA” shall have the meanings set forth , in any manner that complies with this Section 29 hereof4.08.

Incurrence of Indebtedness. (ia) So long as this Note is outstanding, the The Company shall not, and the Company shall not permit any of its Restricted Subsidiaries to, directly or indirectly, incur or create, incur, issue, assume, guarantee or assume any Indebtedness other than otherwise become directly or indirectly liable, contingently or otherwise, with respect to (x) Permitted Indebtedness and (ycollectively, "INCUR") any Indebtedness; PROVIDED, HOWEVER, that the Company and its Restricted Subsidiaries may incur Indebtedness if: (i) the Interest Coverage Ratio for the Company's most recently ended four full fiscal quarters for which internal financial statements are available (or, if internal financial statements for at least four full fiscal quarters since the Issue Date are not available, then the Interest Coverage Ratio shall be calculated with respect to the one, two or three, as appropriate, full fiscal quarters since the Issue Date for which internal financial statements are available) immediately preceding the date on which such additional Indebtedness is incurred would have been at least 1.5 to 1, determined on a pro forma basis (including a pro forma application of the net proceeds therefrom), as if the additional Indebtedness had been incurred at the beginning of such four-quarter period (or shorter period, as appropriate); and (ii) either: (A) such additional Indebtedness (1) has no Stated Maturity of principal until on or after the final Stated Maturity of the Notes, and (2) is not by its terms subject to voluntary prepayment, redemption or call at the option of the Company on or prior to such date; or (B) such additional Indebtedness (1) has no Stated Maturity of principal other than at its final Stated Maturity date, (2) has a final Stated Maturity date not more than two years after its issuance date, and (3) was incurred for the purpose of financing all or any part of the purchase price or carrying cost of CMBS, RMBS, other Trading Assets or other income-producing assets. (b) The provisions of subsection (a) above will not apply to the incurrence of any of the following items of Indebtedness described in clause (collectively, "PERMITTED DEBT"): (i) the incurrence by the Company and its Restricted Subsidiaries of Indebtedness (including letters of credit, with letters of credit being deemed to have a principal amount equal to the maximum potential liability of the Company and its Restricted Subsidiaries thereunder) under the Senior Credit Facility; provided that the aggregate principal amount of all Indebtedness (including letters of credit) outstanding under the Senior Credit Facility after giving effect to such incurrence does not exceed an amount equal to $25.0 million less the aggregate amount of all Net Proceeds of Asset Sales applied to permanently repay any such Senior Credit Facility Indebtedness pursuant to Section 4.10 hereof; (ii) the incurrence by the Company and its Restricted Subsidiaries of the Existing Indebtedness; (iii) the incurrence by the Company of Indebtedness represented by the Notes; (iv) of the definition of “Permitted Indebtedness”) that (1) either (A) does not contain any issuances of any equity securities of incurrence by the Company or any of its Restricted Subsidiaries (other than of Indebtedness represented by Capital Lease Obligations or incurred in similar types of transactions, in each case incurred for the Warrants) purpose of financing all or any part of the purchase price or cost of construction or improvement of property, plant or equipment used in the event that, as business of the applicable Company or such Subsidiary, in an aggregate principal amount not to exceed $400,000 at any time outstanding; (v) so long as no Default or Event of determinationDefault is then continuing, the Company shall have not yet obtained the Stockholder Approval (as defined in the Exchange Agreement), or (B) does not contain any material equity component in the event that, as of the applicable time of determination, incurrence by the Company shall have, on or prior to such time, obtained the Stockholder Approval, and any of its Restricted Subsidiaries of Non-Recourse Debt or Match Funded Indebtedness; (2vi) the ratio guarantee by the Company or any Restricted Subsidiary of Consolidated Funded Indebtedness of the Company and its Subsidiaries or a Restricted Subsidiary that was permitted to TTM EBITDA be incurred by another provision of this Section 4.09; (vii) Indebtedness arising from agreements of the Company or a Restricted Subsidiary providing for indemnification, adjustment of purchase price, assumption or guarantee of nonrecourse liabilities and similar obligations incurred or assumed in connection with the acquisition or disposition of any Restricted Subsidiary or other assets; (viii) the incurrence by the Company or any of its Restricted Subsidiaries for of intercompany Indebtedness between or among the twelve month period most recently ended Company and any of its Restricted Subsidiaries; provided, however, that (as measured as A) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than the end Company or a Restricted Subsidiary thereof and (B) any sale or other transfer of any such Indebtedness to a Person that is not either the most recently completed fiscal quarter) does not exceed 3.50 Company or a Restricted Subsidiary thereof shall be deemed, in each case, to 1.00 (both immediately prior to the incurrence, guarantee or assumption constitute an incurrence of such additional Indebtedness and immediately after giving effect theretoby the Company or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (viii). For ; and (ix) the avoidance incurrence by the Company or any of doubtits Restricted Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to refund, refinance or replace Indebtedness that is either Existing Indebtedness or was permitted by this Note and the Other Notes shall not Indenture to be included in the incurred indebtedness calculation under subsection (a) hereof or clauses (ii), (iii), (iv), (v), (vi), (vii) or (ix) of clause Section 13(b)(i)(y) abovethis subsection (b). (iic) For purposes of determining compliance with this Section 13(b)covenant, “Consolidated Funded Indebtedness” in the event that an item of Indebtedness meets the criteria of more than one of the categories of Permitted Debt described in subsection (b) above or is entitled to be incurred pursuant to subsection (a) above, the Company may classify, and “TTM EBITDA” from time to time re-classify, such item of Indebtedness in any manner that complies with this covenant. Accrual of interest, accretion or amortization of original issue discount, and the payment of interest on any Indebtedness in the form of additional Indebtedness with the same terms will not be deemed to be an incurrence of Indebtedness for purposes of this covenant, but such items shall have not, by virtue of this sentence, be excluded from the meanings set forth scope of the Indebtedness described in Section 29 hereofthe definition of the term "Interest Expense."

Incurrence of Indebtedness. (ia) So long as this Note is outstanding, the The Company shall will not, and the Company shall not or permit any of its Subsidiaries Subsidiary to, directly or indirectly, incur or create, incur, issue, assume, guarantee or assume any Indebtedness other than otherwise become directly or indirectly liable, contingently or otherwise, with respect to (x) Permitted Indebtedness and (ycollectively, "INCUR") any additional Indebtedness (other than Indebtedness described in clause (iv) of the definition of “Permitted Indebtedness”) indebtedness; PROVIDED, HOWEVER, that (1) either (A) does not contain any issuances of any equity securities of the Company or any of its Subsidiaries Subsidiary may incur indebtedness if: (other than the Warrantsi) in the event that, as of the applicable time of determination, the Company shall have not yet obtained the Stockholder Approval (as defined in the Exchange Agreement), or (B) does not contain any material equity component in the event that, as of the applicable time of determination, the Company shall have, on or prior to such time, obtained the Stockholder Approval, indebtedness is unsecured and (2) the ratio of Consolidated Funded Indebtedness of the Company and its Subsidiaries to TTM EBITDA of the Company and its Subsidiaries for the twelve month period most recently ended (as measured as of the end of the most recently completed fiscal quarter) does not exceed 3.50 to 1.00 (both immediately prior subordinated to the incurrence, guarantee or assumption prior payment in full in cash of such additional Indebtedness and immediately after giving effect thereto). For the avoidance of doubt, this Note and the Other Notes shall not be included in the incurred indebtedness calculation of clause Section 13(b)(i)(y) above.all Securities; and (ii) For purposes the final maturity date of this such indebtedness is at least 91 days after the final maturity date of the Securities; and (b) The provisions of Section 13(b8.15(a) will not apply to the issuance or incurrence of any of the following indebtedness: (i) the incurrence by the Company and any Guarantor of the indebtedness listed on Schedule 8.15 hereto; and (ii) the incurrence by the Company and any Guarantor of the indebtedness pursuant to Section 8.04(2) and 8.04(13) and 8.04(13). [(c) Notwithstanding the provisions of Section 8.15(a), “Consolidated Funded Indebtedness” after the Company has paid or redeemed at least $15,000,000 of the principal amount of the Series A Notes, the 33 Company may issue additional series of Securities under this Indenture provided that any such additional series: (i) shall rank pari passu in priority and “TTM EBITDA” right of payment with the Series A Notes, the Series B Notes, the Series C Notes and all other series of securities issued hereunder; (ii) shall have not contain terms more favorable in any respect to the meanings set forth holders of such series than the terms of the Series A Notes, including but not limited to earlier maturity date, liquidation preference, redemption payment amount, frequency of interest payments and security (except as permitted in Section 29 hereof(iii) below); (iii) shall not accrue interest at a rate higher than ten percent (10%) per annum, provided, however, that the Company may issue additional series of Securities with an interest rate of higher than ten percent (10%) per annum if the Company increases the interest rate payable on the Series A Notes to such higher interest rate.]

Incurrence of Indebtedness. (i) So long as this Note Unless and until the aggregate Principal Amount of Securities outstanding is outstandingless than $10.0 million, the Company shall not, and the Company shall not permit any of its Subsidiaries to, directly or indirectly, incur create, incur, issue, assume, guaranty or guarantee otherwise become directly or assume indirectly liable, contingently or otherwise, with respect to (collectively, ‘‘incur’’) any Indebtedness other that is senior to or pari passu with the Securities without the prior consent of Holders of not less than a majority in aggregate Principal Amount of the Securities then outstanding. However, the foregoing limitation shall not limit (xi) Permitted the incurrence by the Company of Indebtedness represented by mortgage financings or purchase money obligations, in each case incurred for the purpose of financing all or any part of the purchase price or cost of construction or improvement of property used in the business of the Company and related fees and expenses, (ii) Indebtedness incurred to finance accounts receivable or inventory not to exceed the greater of (a) $5.0 million and (yb) the Borrowing Base (as defined below), in each case at any additional one time outstanding, (iii) the incurrence by the Company of Indebtedness (other than Indebtedness described in clause represented by the Securities or (iv) the incurrence by the Company of additional Indebtedness in an aggregate Principal Amount (or accreted value, as applicable) not to exceed $15.0 million at any one time outstanding. Notwithstanding any other provision of this Indenture, solely for the definition purposes of “Permitted this Section 4.15, the term ‘‘Indebtedness”) that (1) either (A) does not contain ’’ shall mean any issuances of any equity securities indebtedness of the Company or any of its Subsidiaries (other than the Warrants) in the event thatrespect of borrowed money, whether or not evidenced by bonds, notes, debentures or similar instruments. ‘‘Borrowing Base’’ means, as of any date, an amount equal to: (1) 85% of the applicable time face amount of determination, all accounts receivable owned by the Company shall have not yet obtained the Stockholder Approval (as defined in the Exchange Agreement), or (B) does not contain any material equity component in the event that, as of the applicable time of determination, the Company shall have, on or prior to such time, obtained the Stockholder Approval, and (2) the ratio of Consolidated Funded Indebtedness of the Company and its Subsidiaries to TTM EBITDA of the Company and its Subsidiaries for the twelve month period most recently ended (as measured as of the end of the most recently completed recent fiscal quarter) does quarter preceding such date that were not exceed 3.50 to 1.00 (both immediately prior to the incurrence, guarantee or assumption of such additional Indebtedness and immediately after giving effect thereto). For the avoidance of doubt, this Note and the Other Notes shall not be included in the incurred indebtedness calculation of clause Section 13(b)(i)(y) above.more than 90 days past due; plus (ii2) For purposes 50% of the book value of all inventory, net of reserves, owned by the Company as of the end of the most recent fiscal quarter preceding such date. Solely for the purpose of this Section 13(b)4.15, Indebtedness of Subsidiaries will be deemed to be “Consolidated Funded Indebtednesssenior” and “TTM EBITDA” shall have unless it is specifically by its terms made subordinated to the meanings set forth in Section 29 hereofSecurities.