Common use of Limitation on Restricted Payments Clause in Contracts

Limitation on Restricted Payments. (a) The Borrower shall not, and shall not permit any Restricted Subsidiary, directly or indirectly, to (i) declare or pay any dividend or make any distribution on or in respect of its Capital Stock (including any such payment in connection with any merger or consolidation to which the Borrower is a party) except (x) dividends or distributions payable solely in its Capital Stock (other than Disqualified Stock) and (y) dividends or distributions payable to the Borrower or any Restricted Subsidiary (and, in the case of any such Restricted Subsidiary making such dividend or distribution, to other holders of its Capital Stock on no more than a pro rata basis, measured by value), (ii) purchase, redeem, retire or otherwise acquire for value any Capital Stock of the Borrower held by Persons other than the Borrower or a Restricted Subsidiary (other than any acquisition of Capital Stock deemed to occur upon the exercise of options if such Capital Stock represents a portion of the exercise price thereof), (iii) voluntarily purchase, repurchase, redeem, defease or otherwise voluntarily acquire or retire for value, prior to scheduled maturity, scheduled repayment or scheduled sinking fund payment, any Junior Debt (other than a purchase, repurchase, redemption, defeasance or other acquisition or retirement for value in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case due within one year of the date of such purchase, repurchase, redemption, defeasance or other acquisition or retirement), or (iv) make any Investment (other than a Permitted Investment) in any Person (any such dividend, distribution, purchase, repurchase, redemption, defeasance, other acquisition or retirement or Investment being herein referred to as a “Restricted Payment”), if at the time the Borrower or such Restricted Subsidiary makes such Restricted Payment after giving effect thereto:

Limitation on Restricted Payments. (a) The Borrower shall Company will not, and shall will not permit any Restricted Subsidiary, directly or indirectly, to (i) declare or pay any dividend or make any distribution on or in with respect of to its Capital Stock (including any such payment in connection with any merger or consolidation to which the Borrower is a party) except other than (x) dividends or distributions payable solely in shares of its Capital Stock (other than Disqualified Stock) or in options, warrants or other rights to acquire shares of such Capital Stock and (y) pro rata dividends or distributions payable to on Common Stock of Restricted Subsidiaries held by minority stockholders, provided that such dividends do not in the Borrower aggregate exceed the minority stockholders' pro rata share of such Restricted Subsidiaries' net income from the first day of the fiscal quarter beginning immediately following the Closing Date) held by Persons other than the Company or any Restricted Subsidiary (and, in the case of any such Restricted Subsidiary making such dividend or distribution, to other holders of its Capital Stock on no more than a pro rata basis, measured by value)Restricted Subsidiaries, (ii) purchase, redeem, retire or otherwise acquire for value any shares of Capital Stock of the Borrower Company, any Subsidiary Guarantor or an Unrestricted Subsidiary (including options, warrants or other rights to acquire such shares of Capital Stock) held by Persons other than the Borrower or a Restricted Subsidiary (other than any acquisition of Capital Stock deemed to occur upon the exercise of options if such Capital Stock represents a portion of the exercise price thereof)Company and its Wholly Owned Subsidiaries, (iii) voluntarily purchasemake any voluntary or optional principal payment, or voluntary or optional redemption, repurchase, redeemdefeasance, defease or otherwise voluntarily acquire or retire for value, prior to scheduled maturity, scheduled repayment or scheduled sinking fund payment, any Junior Debt (other than a purchase, repurchase, redemption, defeasance or other acquisition or retirement for value value, of Indebtedness of the Company that is subordinated in right of payment to the Notes or of any Subsidiary Guarantor that is subordinated to the Subsidiary Guaranties (other than, in each case, the purchase, repurchase or the acquisition of Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each any case due within one year of the date of such purchase, repurchase, redemption, defeasance or other acquisition or retirement), acquisition) or (iv) make any Investment (Investment, other than a Permitted Investment, in any Person (such payments or any other actions described in clauses (i) through (iv) being collectively "RESTRICTED PAYMENTS") if, at the time of, and after giving effect to, the proposed Restricted Payment: (A) an Event of Default shall have occurred and be continuing, (B) except with respect to Investments in Restricted Subsidiaries and dividends on the Common Stock of any Subsidiary Guarantor paid to the Company or any Restricted Subsidiary, the Company could not Incur at least $1.00 of Indebtedness under the first sentence of paragraph (a) of Section 4.03 or (C) the aggregate amount of all Restricted Payments (the amount, if other than in cash, to be determined in good faith by the Board of Directors, whose determination shall be conclusive and evidenced by a Board Resolution) made after the Closing Date (after giving pro forma effect to the proposed Restricted Payment) shall exceed the sum of (1) 50% of the aggregate amount of the Adjusted Consolidated Net Income (or, if the Adjusted Consolidated Net Income is a loss, minus 100% of the amount of such loss) (determined by excluding income resulting from transfers of assets by the Company or a Restricted Subsidiary to an Unrestricted Subsidiary) accrued on a cumulative basis during the period (taken as one accounting period) beginning on the first day of the fiscal quarter immediately following the Closing Date and ending on the last day of the last fiscal quarter preceding the Transaction Date for which reports have been filed pursuant to Section 4.18 plus (2) the aggregate amount of Designated Equity Proceeds received by the Company after the Closing Date, except to the extent such amount of Designated Equity Proceeds is used as a basis to Incur Indebtedness pursuant to clause (i) or (viii) of paragraph (a) under Section 4.03, plus (3) an amount equal to the net reduction in Investments (other than reductions in Permitted Investments) in any Person (resulting from payments of interest on Indebtedness, dividends, repayments of loans or advances, or other transfers of assets, in each case to the Company or any Restricted Subsidiary or from the Net Cash Proceeds from the sale of any such dividendInvestment (except, distributionin each case, purchase, repurchase, redemption, defeasance, other acquisition to the extent any such payment or retirement or Investment being herein referred to as a “Restricted Payment”proceeds are included in the calculation of Adjusted Consolidated Net Income), if at or from redesignations of Unrestricted Subsidiaries as Restricted Subsidiaries (valued in each case as provided in the time definition of "Investments"), not to exceed, in each case, the Borrower amount of Investments previously made by the Company or such any Restricted Subsidiary makes in such Restricted Payment after giving effect thereto:Person or Unrestricted Subsidiary.

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

Limitation on Restricted Payments. (a) The Borrower shall not, and shall not permit any Restricted SubsidiarySubsidiary to, directly or indirectly, to indirectly (ix) declare or pay any dividend or make any distribution on account of the Borrower’s or any Restricted Subsidiary’s Equity Interests, including any dividend or distribution payable in connection with any merger, amalgamation or consolidation, other than (A) dividends or distributions by the Borrower payable in Equity Interests (other than Disqualified Stock) of the Borrower or (B) dividends or distributions by a Restricted Subsidiary so long as, in the case of any dividend or distribution payable on or in respect of any class or series of securities issued by a Restricted Subsidiary other than a Wholly-Owned Subsidiary, the Borrower or a Restricted Subsidiary receives at least its Capital Stock pro rata share of such dividend or distribution in accordance with its Equity Interests in such class or series of securities, (y) purchase, redeem, defease or otherwise acquire or retire for value any Equity Interests of the Borrower or any direct or indirect parent of the Borrower, including any such payment in connection with any merger or consolidation to which the Borrower is a partyconsolidation, or (z) except (x) dividends make any principal payment on, or distributions payable solely in its Capital Stock (other than Disqualified Stock) and (y) dividends or distributions payable to the Borrower or any Restricted Subsidiary (and, in the case of any such Restricted Subsidiary making such dividend or distribution, to other holders of its Capital Stock on no more than a pro rata basis, measured by value), (ii) purchase, redeem, retire or otherwise acquire for value any Capital Stock of the Borrower held by Persons other than the Borrower or a Restricted Subsidiary (other than any acquisition of Capital Stock deemed to occur upon the exercise of options if such Capital Stock represents a portion of the exercise price thereof), (iii) voluntarily purchase, repurchase, redeem, defease or otherwise voluntarily acquire or retire for valuevalue in each case, prior to any scheduled maturityrepayment, scheduled repayment or scheduled sinking fund paymentpayment or maturity, any Junior Debt Indebtedness (other than a the purchase, repurchase, redemption, defeasance repurchase or other acquisition or retirement for value of Junior Indebtedness purchased in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case due within one year of the date of such purchase, repurchase, redemption, defeasance repurchase or acquisition) (all such payments and other acquisition or retirement), or actions set forth in clauses (ivx) make any Investment through (other than a Permitted Investmentz) in any Person (any such dividend, distribution, purchase, repurchase, redemption, defeasance, other acquisition or retirement or Investment above being herein collectively referred to as a “Restricted PaymentPayments”), if at the time the Borrower or such Restricted Subsidiary makes such Restricted Payment after giving effect theretoother than:

Limitation on Restricted Payments. (a) The Borrower shall Company will not, and shall will not permit any Restricted SubsidiarySubsidiary to, directly or indirectly, to (i) declare or pay any dividend or make any distribution on or in respect of with to its Capital Stock (including any such payment in connection with any merger or consolidation to which the Borrower is a party) except other than (x) dividends any respect or distributions payable solely in shares of its Capital Stock (other than Disqualified Stock) or in options, warrants or other rights to acquire shares of such Capital Stock and (y) pro rata dividends or distributions payable to on Common Stock of Restricted Subsidiaries held by minority stockholders) held by Persons other than the Borrower Company or any Restricted Subsidiary (and, in the case of any such Restricted Subsidiary making such dividend or distribution, to other holders of its Capital Stock on no more than a pro rata basis, measured by value)Restricted Subsidiaries, (ii) purchase, redeem, retire or otherwise acquire for value any shares of Capital Stock of (A) the Company or an Unrestricted Subsidiary (including options, warrants or other rights to acquire such shares of Capital Stock) held by any Person or (B) a Restricted Subsidiary (including options, warrants or other rights to acquire such shares of Capital Stock) held by any Affiliate of the Company (other than a Wholly Owned Restricted Subsidiary) or any holder (or any Affiliate of such holder) of 5% or more of the Capital Stock of the Borrower held by Persons other than the Borrower or a Restricted Subsidiary (other than any acquisition of Capital Stock deemed to occur upon the exercise of options if such Capital Stock represents a portion of the exercise price thereof)Company, (iii) voluntarily purchasemake any voluntary or optional principal payment, or voluntary or optional redemption, repurchase, redeemdefeasance, defease or otherwise voluntarily acquire or retire for value, prior to scheduled maturity, scheduled repayment or scheduled sinking fund payment, any Junior Debt (other than a purchase, repurchase, redemption, defeasance or other acquisition or retirement for value in anticipation value, of satisfying a sinking fund obligation, principal installment or final maturity, in each case due within one year Indebtedness of the date Company that is subordinated in right of such purchase, repurchase, redemption, defeasance or other acquisition or retirement), to payment the Notes or (iv) make any Investment (Investment, other than a Permitted Investment, in any Person (such payments or any other actions described in clauses (i) through (iv) above being collectively "Restricted Payments") if, at the time of, and after giving effect to, the proposed Restricted Payment: (A) a Default or Event of Default shall have occurred and be continuing, (B) except in the case of an Investment, the Company could not Incur at least $1.00 of Indebtedness under the first paragraph of Section 4.03 or (C) the aggregate amount of all Restricted Payments (the amount, if other than in cash, to be determined in good faith by the Board of Directors, whose determination shall be conclusive and evidenced by a Board Resolution; provided that Restricted Payments, to the extent made solely in Capital Stock other than Disqualified Stock, shall for purposes of this clause (C) be deemed to be in an amount equal to zero) made after the Effective Date shall exceed the sum of (1) 50% of the aggregate amount of the Adjusted Consolidated Net Income (or, if the Adjusted Consolidated Net Income is a loss, minus 100% of the amount of such loss) (determined by excluding income resulting from transfers of assets by the Company or a Restricted Subsidiary to an Unrestricted Subsidiary) accrued on a cumulative basis during the period (taken as one accounting period) beginning on the first day of the fiscal quarter immediately following the Effective Date and ending on the last day of the last fiscal quarter preceding the Transaction Date for which reports have been filed with the Commission or provided to the Trustee pursuant to Section 4.18 plus (2) the aggregate Net Cash Proceeds received by the Company after the Effective Date from the issuance and sale permitted by this Indenture of its Capital Stock (other than Disqualified Stock) to a Person who is not a Subsidiary of the Company, including an issuance or sale permitted by this Indenture of Indebtedness of the Company for cash subsequent to the Effective Date upon the conversion of such indebtedness into Capital Stock (other than Disqualified Stock) of the Company, or from the issuance to a Person who is not a Subsidiary of the Company of any options, warrants or other rights to acquire Capital Stock of the Company (in each case, exclusive of any Disqualified Stock or any options, warrants or other rights that are redeemable at the option of the holder, or are required to be redeemed, prior to the Stated Maturity of the Notes) plus (3) an amount equal to the net reduction in outstanding Investments (other than reductions in outstanding Permitted Investments) in any Person (resulting from payments of interest on Indebtedness, dividends, repayments of loans or advances, or other payments transfers of assets, in each case to the Company or any Restricted Subsidiary or from the Net Cash Proceeds from the sale of any such dividendInvestment (except, distributionin each case, purchase, repurchase, redemption, defeasance, other acquisition to the extent any such payment or retirement or Investment being herein referred to as a “Restricted Payment”proceeds are included in the calculation of Adjusted Consolidated Net Income), if or from redesignations of Unrestricted Subsidiaries as Restricted Subsidiaries (valued in each case as provided in the definition of "Investments"), not to exceed, in each case, the amount of Investments previously made by the Company or any Restricted Subsidiary in such Person or Unrestricted Subsidiary plus (4) $2 million. The amount of any Investment "outstanding" at any time shall be deemed to be equal to the amount of such Investment on the date made, less the return of capital to the Company and its Restricted Subsidiaries with respect to such Investment (up to the amount of such Investment on the date made). Notwithstanding anything herein to the contrary, Investments made through the transfer of equipment shall be valued at the book value at the time the Borrower or of Investment with respect to such Restricted Subsidiary makes such Restricted Payment after giving effect thereto:equipment.

Limitation on Restricted Payments. (a) The Borrower shall not, and shall not permit any Restricted Subsidiary, directly or indirectly, to (i) declare or pay any dividend or make any distribution on or in respect of its Capital Stock (including any such payment in connection with any merger or consolidation to which the Borrower is a party) except (x) dividends or distributions payable solely in its Capital Stock (other than Disqualified Stock) and (y) dividends or distributions payable to the Borrower or any Restricted Subsidiary (and, in the case of any such Restricted Subsidiary making such dividend or distribution, to other holders of its Capital Stock on no more than a pro rata basis, measured by value), (ii) purchase, redeem, retire or otherwise acquire for value any Capital Stock of the Borrower held by Persons other than the Borrower or a Restricted Subsidiary (other than any acquisition of Capital Stock deemed to occur upon the exercise of options if such Capital Stock represents a portion of the exercise price thereof), (iii) voluntarily purchase, repurchase, redeem, defease or otherwise voluntarily acquire or retire for value, prior to scheduled maturity, scheduled repayment or scheduled sinking fund payment, any Junior Debt (other than a purchase, repurchase, redemption, defeasance or other acquisition or retirement for value in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case due within one year of the date of such purchase, repurchase, redemption, defeasance or other acquisition or retirement), or (iv) make any Investment (other than a Permitted Investment) in any Person (any such dividend, distribution, purchase, repurchase, redemption, defeasance, other acquisition or retirement or Investment being herein referred to as a “Restricted Payment”), if at the time the Borrower or such Restricted Subsidiary makes such Restricted Payment and after giving effect thereto:

Limitation on Restricted Payments. (a) The Borrower Company shall not, and shall not permit any Restricted Subsidiary, directly or indirectly, to (i) declare or pay any dividend or make any distribution on or in respect of its Capital Stock (including any such payment in connection with any merger or consolidation to which involving the Borrower is a partyCompany) except (xA) dividends or distributions payable solely in its Capital Stock (other than Disqualified Stock) and (yB) dividends or distributions payable to the Borrower Company or any Restricted another Subsidiary (and, in the case of any if such Restricted Subsidiary making such dividend or distributionis not a Wholly-Owned Subsidiary, to its other holders of its Capital Stock stockholders on no more than a pro rata basis, measured by value), (ii) purchase, redeem, retire or otherwise acquire for value any Capital Stock of the Borrower Company or any Subsidiary held by Persons other than the Borrower Company or a Restricted Subsidiary (other than any acquisition of Capital Stock deemed to occur upon the exercise of options if such Capital Stock represents a portion of the exercise price thereof)another Subsidiary, (iii) voluntarily purchase, repurchase, redeem, defease or otherwise voluntarily acquire or retire for value, prior to scheduled maturity, scheduled repayment or scheduled sinking fund payment, any Junior Debt Subordinated Obligations (other than a the purchase, repurchase, redemption, defeasance repurchase or other acquisition or retirement for value of Subordinated Obligations purchased in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case due within one year of the date of such purchase, repurchase, redemption, defeasance or other acquisition or retirement), acquisition) or (iv) make any Investment (other than a Permitted Investment) in any Person (any such dividend, distribution, purchase, redemption, repurchase, redemption, defeasance, other acquisition or acquisition, retirement or Investment being herein referred to as a “"Restricted Payment”"), if at the time the Borrower Company or such Restricted Subsidiary makes such Restricted Payment: (1) a Default shall have occurred and be continuing (or would result therefrom); or (2) the Company could not Incur at least an additional $1.00 of Indebtedness pursuant to Section 4.3(a); or (3) the aggregate amount of such Restricted Payment after giving effect thereto:and all other Restricted Payments declared (the amount so expended, if other than in cash, to be determined in good faith by the Board of Directors, whose determination shall be conclusive and evidenced by a resolution of the Board of Directors) or made subsequent to the Issue Date would exceed the sum of: (A) 50% of the Consolidated Net Income accrued during the period (treated as one accounting period) from the Issue Date to the end of the most recent fiscal quarter ending prior to the date of such Restricted Payment as to which financial results are available (but in no event more than 135 days prior to the date of such Restricted Payment) (or, in case such Consolidated Net Income shall be a deficit, minus 100% of such deficit); (B) the aggregate Net Cash Proceeds received by the Company from the issue or sale of its Capital Stock (other than Disqualified Stock) or other cash contributions to its capital subsequent to the Issue Date (other than an issuance or sale to a Subsidiary of the Company or an employee stock ownership plan or other trust established by the Company or any of its Subsidiaries); (C) aggregate Net Cash Proceeds from issue or sale of its Capital Stock to an employee stock ownership plan or similar trust, provided, however, that if such plan or trust Incurs any Indebtedness to or Guaranteed by the Company to finance the acquisition of such Capital Stock, such aggregate amount shall be limited to any increase in the Consolidated Net Worth of the Company resulting from principal repayments made by such plan or trust with respect to Indebtedness Incurred by it to finance the purchase of such Capital Stock; and (D) the amount by which Indebtedness of the Company or its Subsidiaries is reduced on the Company's balance sheet upon the conversion or exchange (other than by a Subsidiary) subsequent to the Issue Date of any Indebtedness of the Company or its Subsidiaries convertible or exchangeable for Capital Stock (other than Disqualified Stock) of the Company (less the amount of any cash, or other property, distributed by the Company or any Subsidiary upon such conversion or exchange).

Limitation on Restricted Payments. (a) The Borrower Company and the Parent Guarantor jointly and severally agree that the Company and the Parent Guarantor shall not, and shall not permit any Restricted SubsidiarySubsidiary of either the Company or the Parent Guarantor to, directly or indirectly, to (i) declare or pay any dividend or make any distribution on or in with respect of to its Capital Stock (including any such payment in connection with any merger or consolidation to which the Borrower is a party) except other than (x) dividends or distributions payable solely in its shares of the Company’s or the Parent Guarantor’s Capital Stock (other than Disqualified Stock) or in options, warrants or other rights to acquire shares of such Capital Stock (other than Disqualified Stock) and (y) pro rata dividends or distributions payable to on Common Stock of Restricted Subsidiaries held by minority stockholders) held by Persons other than the Borrower Company, the Parent Guarantor or any Restricted Subsidiary (and, in the case of any such Restricted Subsidiary making such dividend or distribution, to other holders of its Capital Stock on no more than a pro rata basis, measured by value)Subsidiary, (ii) purchase, redeem, retire or otherwise acquire for value any shares of Capital Stock of (x) the Parent Guarantor or an Unrestricted Subsidiary (including options, warrants or other rights to acquire such shares of Capital Stock) held by any Person or (y) a Restricted Subsidiary (including options, warrants or other rights to acquire such shares of Capital Stock) held by any Affiliate of the Parent Guarantor (other than a Wholly Owned Restricted Subsidiary) or any holder (or any Affiliate of such holder) of 5% or more of the Capital Stock of the Borrower held by Persons other than the Borrower or a Restricted Subsidiary (other than any acquisition of Capital Stock deemed to occur upon the exercise of options if such Capital Stock represents a portion of the exercise price thereof)Parent Guarantor, (iii) voluntarily purchasemake any voluntary or optional principal payment, or voluntary or optional redemption, repurchase, redeemdefeasance, defease or otherwise voluntarily acquire or retire for value, prior to scheduled maturity, scheduled repayment or scheduled sinking fund payment, any Junior Debt (other than a purchase, repurchase, redemption, defeasance or other acquisition or retirement for value value, of any Indebtedness that is subordinated in anticipation right of satisfying a sinking fund obligationpayment to the Notes, principal installment the Parent Guarantee or final maturity, in each case due within one year of the date of such purchase, repurchase, redemption, defeasance or other acquisition or retirement), any Subsidiary Guarantee; or (iv) make any Investment (Investment, other than a Permitted Investment, in any Person (such payments or any other actions described in clauses (i) through (iv) above being collectively referred to as “Restricted Payments”) if, at the time of, and after giving effect to, the proposed Restricted Payment: (A) a Default or Event of Default shall have occurred and be continuing, (B) the Parent Guarantor could not Incur at least $1.00 of Indebtedness under clause (i) of Section 4.03(a) or (C) the aggregate amount of all Restricted Payments (the amount, if other than in cash, to be determined in good faith by the Board of Directors, whose determination shall be conclusive and evidenced by a Board Resolution) made after the Existing High Yield Closing Date shall exceed the sum of (1) the amount by which Consolidated EBITDA of the Parent Guarantor exceeds 150% of Consolidated Interest Expense of the Parent Guarantor, in each case, determined on a cumulative basis during the period (taken as one accounting period) beginning on the first day of the fiscal quarter immediately following the Existing High Yield Closing Date and ending on the last day of the last fiscal quarter preceding the Transaction Date for which reports have been filed with the Commission or provided to the Trustee pursuant to Section 4.18, plus (2) the aggregate Net Cash Proceeds and the fair market value of all non-cash proceeds received by the Company or the Parent Guarantor after the Existing High Yield Closing Date from the issuance and sale permitted by this Indenture of its Capital Stock (other than Disqualified Stock) to a Person who is not a Subsidiary of the Company or the Parent Guarantor, including an issuance or sale permitted by this Indenture of Indebtedness of the Company or the Parent Guarantor for cash subsequent to the Existing High Yield Closing Date upon the conversion of such Indebtedness into Capital Stock (other than Disqualified Stock) of the Company or the Parent Guarantor, or from the issuance to a Person who is not a Subsidiary of the Company or the Parent Guarantor of any options, warrants or other rights to acquire Capital Stock of the Company or the Parent Guarantor (in each case, exclusive of any Disqualified Stock or any options, warrants or other rights that are redeemable at the option of the holder, or are required to be redeemed, prior to the Stated Maturity of the Notes), in each case except to the extent such Net Cash Proceeds and non-cash proceeds are used to Incur Indebtedness pursuant to clause (viii) of Section 4.03(b), plus (3) an amount equal to the net reduction in Investments (other than reductions in Permitted Investments) in any Person (resulting from payments of interest on Indebtedness, dividends, repayments of loans or advances, or other transfers of assets, in each case to the Company, the Parent Guarantor or any Restricted Subsidiary or from the Net Cash Proceeds from the sale of any such dividendInvestment (except, distributionin each case, purchaseto the extent any such payment or proceeds are included in the calculation of Adjusted Consolidated Net Income), repurchase, redemption, defeasance, other acquisition or retirement or Investment being herein referred to from redesignations of Unrestricted Subsidiaries as a Restricted Subsidiaries (valued in each case as provided in the definition of “Restricted PaymentInvestments”), if at not to exceed, in each case, the time amount of Investments previously made by the Borrower Company, the Parent Guarantor or such any Restricted Subsidiary makes in such Restricted Payment after giving effect thereto:Person or Unrestricted Subsidiary.

Limitation on Restricted Payments. (a) The Borrower Company shall not, and shall not permit any Restricted SubsidiarySubsidiary to, directly or indirectly, to : (i) declare or pay any dividend dividend, or make any distribution on distribution, of any kind or character (whether in cash, property or securities) in respect of its the Capital Stock (including of the Company or any such payment Restricted Subsidiary or to the Holders thereof in connection with any merger or consolidation to which the Borrower is a party) except their capacity as such, excluding: (x) any dividends or distributions to the extent payable solely in its shares of the Capital Stock of the Company (other than Disqualified StockRedeemable Interests) and or in options, warrants or other rights to acquire the Capital Stock of the Company (other than Redeemable Interests), (y) dividends or distributions payable by a Restricted Subsidiary to the Borrower Company or any another Wholly-Owned Restricted Subsidiary, and (z) the payment of pro rata dividends by a Restricted Subsidiary (and, to Holders of both minority and majority interests in the case of any such Restricted Subsidiary making such dividend or distribution, to other holders of its Capital Stock on no more than a pro rata basis, measured by valueSubsidiary), ; (ii) purchase, redeem or otherwise acquire or retire for value: (a) any Capital Stock of the Company or any Capital Stock of or other ownership interests in any Subsidiary or any Affiliate or Related Person of the Company, or (b) any options, warrants or rights to purchase or acquire shares of Capital Stock of the Company or any Capital Stock of or other ownership interests in any Subsidiary or any Affiliate or Related Person of the Company (excluding, in each case of (a) and (b), the purchase, redemption, acquisition or retirement by any Restricted Subsidiary of any of its Capital Stock, other ownership interests or options, warrants or rights to purchase such Capital Stock or other ownership interests, in each case, owned by the Company or a Wholly-Owned Restricted Subsidiary); (iii) make any Investment that is not a Permitted Investment; or (iv) redeem, defease, repurchase, retire or otherwise acquire for value any Capital Stock of the Borrower held by Persons other than the Borrower or a Restricted Subsidiary (other than any acquisition of Capital Stock deemed to occur upon the exercise of options if such Capital Stock represents a portion of the exercise price thereof), (iii) voluntarily purchase, repurchase, redeem, defease or otherwise voluntarily acquire or retire for value, value prior to any scheduled maturity, scheduled repayment or scheduled sinking fund payment, any Junior Debt (other than a purchase, repurchase, redemption, defeasance or other acquisition or retirement for value in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case due within one year of the date Company that is subordinate in right of such purchase, repurchase, redemption, defeasance or other acquisition or retirement), or payment to the Notes (each of the transactions described in clauses (i) through (iv) make any Investment (other than a Permitted Investment) in any Person (any such dividend, distribution, purchase, repurchase, redemption, defeasance, other acquisition or retirement or Investment being herein referred to as a “Restricted Payment”), if at the time the Borrower or such Restricted Subsidiary makes such Restricted Payment after giving effect theretoif:

Limitation on Restricted Payments. (a) The Borrower shall Company will not, and shall will not permit any Restricted SubsidiarySubsidiary to, directly or indirectly, to (i) declare or pay any dividend or make any distribution on or in with respect of to its Capital Stock (including any such payment in connection with any merger or consolidation to which the Borrower is a party) except other than (x) dividends or distributions payable solely in shares of its Capital Stock (other than Disqualified Stock) or in options, warrants or other rights to acquire shares of such Capital Stock and (y) pro rata dividends or distributions payable to on Capital Stock of Restricted Subsidiaries held by minority stockholders) held by Persons other than the Borrower Company or any Restricted Subsidiary (and, in the case of any such Restricted Subsidiary making such dividend or distribution, to other holders of its Capital Stock on no more than a pro rata basis, measured by value)Restricted Subsidiaries, (ii) purchase, redeem, retire or otherwise acquire for value any shares of Capital Stock of (A) the Company or an Unrestricted Subsidiary (including options, warrants or other rights to acquire such shares of Capital Stock) held by any Person (other than with respect to the Capital Stock of an Unrestricted Subsidiary, Permitted Investments) or (B) a Restricted Subsidiary (including options, warrants or other rights to acquire such shares of Capital Stock) held by any Affiliate of the Company (other than a Wholly Owned Restricted Subsidiary or a Restricted Subsidiary in which no Affiliate of the Company (other than the Company or any Restricted Subsidiary) or holder of 5% or more of the aggregate value of the Capital Stock of the Borrower held by Persons Company has an interest) or any holder (or any Affiliate (other than the Borrower a Wholly Owned Restricted Subsidiary or a Restricted Subsidiary in which no Affiliate of the Company (other than the Company or any acquisition Restricted Subsidiary) or holder of 5% or more of the aggregate value of the Capital Stock deemed to occur upon of the exercise Company has an interest) of options if such holder) of 5% or more of the aggregate value of the Capital Stock represents a portion of the exercise price thereof)Company, (iii) voluntarily purchasemake any voluntary or optional principal payment, or voluntary or optional redemption, repurchase, redeemdefeasance, defease or otherwise voluntarily acquire or retire for value, prior to scheduled maturity, scheduled repayment or scheduled sinking fund payment, any Junior Debt (other than a purchase, repurchase, redemption, defeasance or other acquisition or retirement for value in anticipation value, of satisfying a sinking fund obligation, principal installment or final maturity, in each case due within one year Indebtedness of the date Company that is subordinated in right of such purchase, repurchase, redemption, defeasance or other acquisition or retirement), payment to the Notes or (iv) make any Investment (Investment, other than a Permitted Investment, in any Person (such payments or any other actions described in clauses (i) through (iv) above being collectively "Restricted Payments") if, at the time of, and after giving effect to, the proposed Restricted Payment: (A) a Default or Event of Default shall have occurred and be continuing, (B) the Company could not Incur at least $1.00 of Indebtedness under the first paragraph of subsection (a) of this Section 1008 or (C) the aggregate amount of all Restricted Payments (the amount, if other than in cash, to be determined in good faith by the Board of Directors, whose determination shall be conclusive and evidenced by a Board Resolution) made after the Closing Date shall exceed the sum of (1) Consolidated EBITDA accrued on a cumulative basis during the period (taken as one accounting period) beginning on the first day of the fiscal quarter immediately following the Closing Date and ending on the last day of the last fiscal quarter preceding the Determination Date for which reports have been filed with the Commission or provided to the Trustee pursuant to Section 1020 less two times Consolidated Interest Expense for such period, plus (2) the aggregate Net Cash Proceeds received by the Company after the Closing Date as a capital contribution or from the issuance and sale of its Capital Stock (other than Disqualified Stock) to a Person who is not a Subsidiary of the Company, including an issuance or sale permitted by the Indenture of Indebtedness of the Company for cash subsequent to the Closing Date upon the conversion or exchange of such Indebtedness into Capital Stock (other than Disqualified Stock) of the Company, or from the issuance to a Person who is not a Subsidiary of the Company of any options, warrants or other rights to acquire Capital Stock of the Company (in each case, exclusive of any Disqualified Stock or any options, warrants or other rights that are redeemable at the option of the holder, or are required to be redeemed, prior to the Stated Maturity of the Notes) plus (3) an amount equal to the net reduction in Investments (other than reductions in Permitted Investments) in any Person (resulting from payments of interest on Indebtedness, dividends, repayments of loans or advances, or other transfers of assets, in each case to the Company or any Restricted Subsidiary or from the Net Cash Proceeds from the sale of any such dividendInvestment (except, distributionin each case, purchase, repurchase, redemption, defeasance, other acquisition to the extent any such payment or retirement or Investment being herein referred to as a “Restricted Payment”proceeds are included in the calculation of Consolidated EBITDA), if at or from redesignations of Unrestricted Subsidiaries as Restricted Subsidiaries (valued in each case as provided in the time definition of "Investments"), not to exceed, in each case, the Borrower amount of Investments previously made by the Company or such any Restricted Subsidiary makes in such Restricted Payment after giving effect thereto:Person or Unrestricted Subsidiary.

Limitation on Restricted Payments. (a) The Borrower shall Company will not, and shall will not permit any Restricted SubsidiarySubsidiary (including the Guarantor) to, directly or indirectly, to (i) declare or pay any dividend or make any distribution on or in with respect of to its Capital Stock held by Persons other than the Company or any Restricted Subsidiary (including any such payment in connection with any merger or consolidation to which the Borrower is a party) except other than (x) dividends or distributions payable solely in shares of its or such Restricted Subsidiary’s Capital Stock (other than Disqualified Stock) or in options, warrants or other rights to acquire shares of such Capital Stock and (y) pro rata dividends or distributions payable on Common Stock of Restricted Subsidiaries; provided that such payments made to Persons other than the Borrower Company or any a Restricted Subsidiary shall be included in calculating whether the conditions of clause (and, in the case C) of any such Restricted Subsidiary making such dividend or distribution, to other holders this first paragraph of its Capital Stock on no more than a pro rata basis, measured by valueSection 4.04 have been met), (ii) purchase, redeem, retire or otherwise acquire for value any shares of Capital Stock of the Borrower Company or the Guarantor (including options, warrants or other rights to acquire such shares of Capital Stock) held by Persons other than the Borrower Company or any of its Wholly-Owned Restricted Subsidiaries, (iii) make any voluntary or optional principal payment, or voluntary or optional redemption, repurchase, defeasance, or other acquisition or retirement for value, of Indebtedness of the Company that is subordinated in right of payment to the Securities or of the Guarantor that is subordinated to the Security Guarantee or (iv) make any Investment, other than a Permitted Investment, in any Person (such payments or any other actions described in clauses (i) through (iv) above being collectively “Restricted Payments”) if, at the time of, and after giving effect to, the proposed Restricted Payment: (A) a Default or Event of Default shall have occurred and be continuing, (B) the Company could not Incur at least $1.00 of Indebtedness under the first paragraph of Section 4.03 or (C) the aggregate amount of all Restricted Payments (the amount, if other than in cash, to be determined in good faith by the Board of Directors, whose determination shall be evidenced by a Board Resolution) made after the Closing Date shall exceed the sum of (1) 50% of the aggregate amount of the Adjusted Consolidated Net Income (or, if the Adjusted Consolidated Net Income is a loss, minus 100% of the amount of such loss) (determined by excluding income resulting from transfers of assets by the Company or a Restricted Subsidiary to an Unrestricted Subsidiary) accrued on a cumulative basis during the period (taken as one accounting period) beginning on the first day of the fiscal quarter commencing after the Closing Date and ending on the last day of the last fiscal quarter preceding the Transaction Date for which reports have been filed with the Commission or provided to the Trustee pursuant to Section 4.18 plus (2) the aggregate Net Cash Proceeds received by the Company after the Closing Date as a capital contribution or from the issuance and sale of its Capital Stock (other than any acquisition Disqualified Stock) to a Person who is not a Subsidiary of the Company, including an issuance or sale permitted by this Indenture of Indebtedness of the Company for cash subsequent to the Closing Date upon the conversion of such Indebtedness into Capital Stock deemed (other than Disqualified Stock) of the Company, or from the issuance to occur upon a Person who is not a Subsidiary of the exercise Company of options if such any options, warrants or other rights to acquire Capital Stock represents a portion of the exercise price thereof)Company (in each case, (iii) voluntarily purchaseexclusive of any convertible indebtedness, repurchaseDisqualified Stock or any options, redeemwarrants or other rights that are redeemable at the option of the holder, defease or otherwise voluntarily acquire or retire for valueare required to be redeemed, prior to scheduled maturityFinal Maturity), scheduled repayment in each case except to the extent such Net Cash Proceeds are used to Incur Indebtedness pursuant to clause (viii) of the second paragraph under Section 4.03, plus (3) an amount equal to the net reduction in Investments made pursuant to this first paragraph of this Section 4.04 in any Person resulting from payments of interest on Indebtedness, dividends, repayments of loans or scheduled sinking fund paymentadvances, or other transfers of assets, in each case to the Company or any Junior Debt Restricted Subsidiary or from the Net Cash Proceeds from the sale of any such Investment (other than a purchaseexcept, in each case, to the extent any such payment or proceeds are included in the calculation of Adjusted Consolidated Net Income), or from redesignations of Unrestricted Subsidiaries as Restricted Subsidiaries (valued in each case as provided in the definition of “Investments”), not to exceed, in each case, the amount of Investments previously made and treated as Restricted Payments by the Company or any Restricted Subsidiary in such Person or Unrestricted Subsidiary. The foregoing provision shall not be violated by reason of: (i) the payment of any dividend within 60 days after the date of declaration thereof if, at said date of declaration, such payment would comply with the foregoing paragraph; (ii) the redemption, repurchase, redemption, defeasance or other acquisition or retirement for value of Indebtedness that is subordinated in anticipation right of satisfying a sinking fund obligationpayment to the Securities including premium, principal installment if any, and accrued and unpaid interest, with the proceeds of, or final maturityin exchange for, in each case due within one year Indebtedness Incurred under clause (iii) of the date second paragraph of part (a) of Section 4.03; (iii) the repurchase, redemption or other acquisition of Capital Stock of the Company or any Restricted Subsidiary (or options, warrants or other rights to acquire such purchaseCapital Stock) in exchange for, or out of the Net Cash Proceeds of a capital contribution or a substantially concurrent offering of, shares of Capital Stock (other than Disqualified Stock) of the Company (or options, warrants or other rights to acquire such Capital Stock); provided that the Net Cash Proceeds from such sale or such capital contribution (to the extent so used for such Restricted Payment) shall be excluded from the calculation of the amounts under clause (2) of the previous paragraph; (iv) the making of any principal payment or the repurchase, redemption, 44 retirement, defeasance or other acquisition for value of Indebtedness of the Company that is subordinated in right of payment to the Securities in exchange for, or retirementout of the Net Cash Proceeds of a capital contribution or a substantially concurrent offering of, shares of the Capital Stock (other than Disqualified Stock) of the Company (or options, warrants or other rights to acquire such Capital Stock); provided, however, that the Net Cash Proceeds from such sale or such capital contribution (to the extent so used for such Restricted Payment) shall be excluded from the calculation of the amounts under clause (2) of the previous paragraph; (v) payments or distributions, to dissenting stockholders pursuant to applicable law, pursuant to or in connection with a consolidation, merger or transfer of assets that complies with Article Five; (vi) Investments in Unrestricted Subsidiaries not to exceed, at any one time outstanding, $5 million; or (vii) Investments acquired in exchange for Capital Stock (other than Disqualified Stock) of the Company or with the Net Cash Proceeds of such Capital Stock; provided that such proceeds are so applied within 90 days of receipt thereof; provided that the Net Cash Proceeds from such sale or such capital contribution (to the extent so used for such Restricted Payment) shall be excluded from the calculation of the amounts under clause (2) of the previous paragraph; (viii) the payment of cash to (A) the holders of warrants issued pursuant to the Plan upon exercise of such warrants and (B) the holders of Securities or the Series B Notes upon conversion of the Securities or the Series B Notes, in each case in lieu of fractional shares of the Company’s Common Stock and (ix) other Restricted Payments in an aggregate amount not to exceed $10 million; provided that, except in the case of clause (i), no Default or Event of Default shall have occurred and be continuing or occur as a consequence of the actions or payments set forth therein. The value of any Restricted Payment made other than in cash shall be the fair market value thereof. The amount of any Investment “outstanding” at any time shall be deemed to be equal to the amount of such Investment on the date made, less the return of capital to the Company and its Restricted Subsidiaries with respect to such Investment (up to the amount of such Investment). Each Restricted Payment permitted pursuant to the preceding paragraph (other than the Restricted Payment referred to in clause (ii) thereof, an exchange of Capital Stock for Capital Stock or Indebtedness referred to in clause (iv) make thereof and an Investment referred to in clause (vi) thereof), and the Net Cash Proceeds from any Investment capital contribution or any issuance of Capital Stock referred to in clauses (other than a Permitted Investmentiv) and (vii), shall be included in calculating whether the conditions of clause (C) of the first paragraph of this Section 4.04 have been met with respect to any Person (any such dividend, distribution, purchase, repurchase, subsequent Restricted Payments. If the proceeds of an issuance of Capital Stock of the Company are used for the redemption, defeasance, repurchase or other acquisition of the Securities, or retirement Indebtedness that is pari passu with the Securities, then the Net Cash Proceeds of such issuance shall be included in clause (C) of the first paragraph of this Section 4.04 only to the extent such proceeds are not used for such redemption, repurchase or Investment being herein referred to as other acquisition of Indebtedness. For purposes of determining compliance with this Section 4.04, in the event that a “Restricted Payment”)Payment meets the criteria of more than one of the types of Restricted Payments described in clauses (i) through (x) of the preceding paragraph, if at the time the Borrower or such Restricted Subsidiary makes Company, in its sole discretion, shall classify such Restricted Payment after giving effect thereto:and only be required to include the amount and type of such Restricted Payment in one of such clauses.

Limitation on Restricted Payments. (a) The Borrower Company shall not, and shall not permit any Restricted SubsidiarySubsidiary to, directly or indirectly, to (i) declare or pay any dividend or make any distribution on or in respect of its Capital Stock (including any such payment in connection with any merger or consolidation involving the Company) or to which the Borrower is a party) direct or indirect holders of its Capital Stock in their capacities as such (except (x) dividends or distributions payable solely in Capital Stock (other than Disqualified Stock) or in options, warrants or other rights to purchase its Capital Stock (other than Disqualified Stock) and (y) except dividends or distributions payable to the Borrower Company or any Restricted Subsidiary (and, in if the case of any such Restricted Subsidiary making such dividend dividends or distributiondistributions has any stockholders other than the Company or another Restricted Subsidiary, to other holders of its Capital Stock such stockholders on no more than a pro rata basis, measured by value)), (ii) purchase, redeem, retire redeem or otherwise acquire or retire for value any Capital Stock of the Borrower held by Persons other than the Borrower Company or a Restricted Subsidiary (other than any acquisition of Capital Stock deemed to occur upon the exercise of options if such Capital Stock represents a portion Affiliate of the exercise price thereof)Company, (iii) voluntarily purchase, repurchase, redeem, defease or otherwise voluntarily acquire or retire for value, prior to scheduled maturity, scheduled repayment or scheduled sinking fund payment, any Junior Debt Subordinated Obligations (other than (A) from the Company or a Restricted Subsidiary or (B) the purchase, repurchase, redemption, defeasance or other acquisition or retirement for value of Subordinated Obligations purchased in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case due within one year of the date of such purchase, repurchase, redemption, defeasance or other acquisition or retirement), retirement or (iv) make any Restricted Investment (other than a Permitted Investment) in any Person (any such dividend, distribution, purchase, redemption, repurchase, redemption, defeasance, other acquisition or acquisition, retirement or Restricted Investment being herein referred to as a “Restricted Payment”), ) if at the time the Borrower Company or such Restricted Subsidiary makes such Restricted Payment after giving effect theretoPayment:

Limitation on Restricted Payments. (a) The Borrower shall Company will not, and shall will not permit any Restricted Subsidiaryof its Subsidiaries to, directly or indirectly, to (i) declare or pay any dividend or make any other payment or distribution on account of the Company's or in respect any of its Capital Stock Subsidiary's Equity Interests (including including, without limitation, any such payment in connection with any merger or consolidation to which the Borrower is a partyconsolidation) except (x) other than dividends or distributions (A) paid or payable solely in its Capital Stock Equity Interests (other than Disqualified Stock) and of the Company or (yB) dividends paid or distributions payable to the Borrower Company or any Restricted Subsidiary (and, in of the case of any such Restricted Subsidiary making such dividend or distribution, to other holders of its Capital Stock on no more than a pro rata basis, measured by value), Company; (ii) purchase, redeem, retire redeem or otherwise acquire or retire for value any Capital Stock Equity Interests of the Borrower held by Persons Company or any direct or indirect parent of the Company or 19 124 other than Affiliate of the Borrower Company or a Restricted any Subsidiary of the Company (other than any acquisition of Capital Stock deemed to occur upon such Equity Interests owned by the exercise of options if such Capital Stock represents a portion Company or any Subsidiary of the exercise price thereofCompany or upon redemption of the Series A Voting Preferred Stock or the Series B Nonvoting Preferred Stock in accordance with the terms of the Amendment), ; (iii) voluntarily make any principal payment on, or purchase, repurchase, redeem, defease or otherwise voluntarily acquire or retire for value, value prior to the scheduled maturity, scheduled repayment or scheduled sinking fund payment, any Junior Debt Subordinated Indebtedness (other than a except, if no Default or Event of Default is continuing or would result therefrom, any such payment, purchase, repurchase, redemption, defeasance or other acquisition or retirement for value in anticipation made (A) out of satisfying a sinking fund obligation, principal installment or final maturity, in each case due within one year of the date of Excess Proceeds available for general corporate purposes if such purchase, repurchase, redemption, defeasance payment or other acquisition action is required by the indenture or retirementother agreement or instrument pursuant to which such Subordinated Indebtedness was issued, or (B) upon the occurrence of a Change of Control if (1) such payment or other action is required by the indenture or other agreement or instrument pursuant to which such Subordinated Indebtedness was issued and (2) the Company has purchased all Notes properly tendered pursuant to Section 4.1 resulting from such Change of Control), ; or (iv) make any Restricted Investment (all such payments and other than a Permitted Investmentactions set forth in clauses (i) in any Person through (any such dividend, distribution, purchase, repurchase, redemption, defeasance, other acquisition or retirement or Investment iv) above being herein collectively referred to as a “"Restricted Payment”Payments"), if unless, at the time the Borrower or such Restricted Subsidiary makes such Restricted Payment of and after giving effect theretoto such Restricted Payment:

Limitation on Restricted Payments. (a) The Borrower shall Company will not, and shall will not permit any Restricted SubsidiarySubsidiary to, directly or indirectly, to (i) declare or pay any dividend or make any distribution on or in with respect of to its Capital Stock (including any such payment in connection with any merger or consolidation to which the Borrower is a party) except other than (x) dividends or distributions payable solely in shares of its Capital Stock (other than Disqualified Stock) or in options, warrants or other rights to acquire shares of such Capital Stock and (y) dividends or distributions payable to the Borrower or any on Capital Stock of a Restricted Subsidiary (and, in the case of any such Restricted Subsidiary making such dividend or distribution, to other held by minority interest holders of its Capital Stock on no more than a pro rata basis, measured by value)value and based on all outstanding Capital Stock of such Restricted Subsidiary) held by Persons other than the Company or any of its Restricted Subsidiaries, (ii) purchase, redeem, retire or otherwise acquire for value any shares of Capital Stock of (A) the Company or an Unrestricted Subsidiary (including options, warrants or other rights to acquire such shares of Capital Stock) held by any Person other than the Company or any Wholly Owned Restricted Subsidiary or (B) a Restricted Subsidiary (including options, warrants or other rights to acquire such shares of Capital Stock) held by any Affiliate of the Company (other than a Wholly Owned Restricted Subsidiary) or any holder (or any Affiliate of such holder) of 5% or more of the Capital Stock of the Borrower held by Persons other than the Borrower or a Restricted Subsidiary (other than any acquisition of Capital Stock deemed to occur upon the exercise of options if such Capital Stock represents a portion of the exercise price thereof)Company, (iii) voluntarily purchasemake any voluntary or optional principal payment, or voluntary or optional redemption, repurchase, redeemdefeasance, defease or otherwise voluntarily acquire or retire for value, prior to scheduled maturity, scheduled repayment or scheduled sinking fund payment, any Junior Debt (other than a purchase, repurchase, redemption, defeasance or other acquisition or retirement for value in anticipation value, of satisfying a sinking fund obligation, principal installment or final maturity, in each case due within one year Indebtedness of the date Company that is expressly subordinated in right of such purchase, repurchase, redemption, defeasance payment to the Notes or other acquisition or retirement), any Notes Guarantee or (iv) make any Investment (Investment, other than a Permitted Investment, in any other Person (such payments or any other actions described in clauses (i) through (iv) above being collectively "Restricted Payments") if, at the time of, and after giving effect to, the proposed Restricted Payment: (A) a Default or Event of Default shall have occurred and be continuing, (B) the Company could not Incur at least $1.00 of Indebtedness under the first paragraph of Section 4.03 or (C) the aggregate amount of all Restricted Payments (the amount, if other than in cash, to be determined in good faith by the Board of Directors, whose determination shall be conclusive and evidenced by a Board Resolution) made after the Closing Date shall exceed the sum of (1) 50% of the aggregate amount of the Adjusted Consolidated Net Income (or, if the Adjusted Consolidated Net Income is a loss, minus 100% of the amount of such loss) accrued on a cumulative basis during the period (taken as one accounting period) beginning on the first day of the fiscal quarter beginning immediately following the Closing Date and ending on the last day of the last fiscal quarter preceding the Transaction Date for which reports have been filed with the Commission or provided to the Trustee pursuant to Section 4.18 PLUS (2) the aggregate Net Cash Proceeds received by the Company after the Closing Date as a capital contribution or from the issuance and sale permitted by this Indenture of its Capital Stock (other than Disqualified Stock) to a Person who is not a Subsidiary of the Company, including the proceeds of an issuance or sale permitted by this Indenture of Indebtedness of the Company for cash subsequent to the Closing Date upon the conversion of such Indebtedness into Capital Stock (other than Disqualified Stock) of the Company, or from the issuance to a Person who is not a Subsidiary of the Company of any options, warrants or other rights to acquire Capital Stock of the Company (in each case, exclusive of any Disqualified Stock or any options, warrants or other rights that are redeemable at the option of the holder, or are required to be redeemed, prior to the Stated Maturity of the Notes), in each case except to the extent such Net Cash Proceeds are used to Incur Indebtedness pursuant to clause (viii) of the second paragraph under Section 4.03 PLUS (3) an amount equal to the net reduction in Investments (other than reductions in Permitted Investments and Investments under clause (vi), (viii) or (xii) of the second paragraph of this Section 4.04) in any Person (resulting from payments of interest on Indebtedness, dividends, distributions, repayments of loans or advances, or other transfers of assets, in each case to the Company or any Restricted Subsidiary or from the Net Cash Proceeds from the sale or other disposition of any such dividendInvestment (except, distributionin each case, purchase, repurchase, redemption, defeasance, to the extent of any gain on such sale or other acquisition or retirement or Investment being herein referred to as a “Restricted Payment”disposition that would be included in the calculation of Adjusted Consolidated Net Income for purposes of clause (C)(1) above), if at or from redesignations of Unrestricted Subsidiaries as Restricted Subsidiaries (valued in each case as provided in the time definition of "Investments"), not to exceed, in each case, the Borrower amount of Investments previously made by the Company or such any Restricted Subsidiary makes in such Restricted Payment after giving effect theretoPerson or Unrestricted Subsidiary. The foregoing provision shall not be violated by reason of:

Limitation on Restricted Payments. (a) The Borrower shall Company will not, and shall will not permit any of its Restricted SubsidiarySubsidiaries, directly or indirectly, to (i) declare or pay any dividend or make any distribution on or in respect of its Capital Stock (including any such payment in connection with any merger or consolidation to which involving the Borrower is a partyCompany or any of its Restricted Subsidiaries) except (xA) dividends or distributions payable solely in its Capital Stock (other than Disqualified Stock) or in options, warrants or other rights to purchase such Capital Stock and (yB) dividends or distributions payable to the Borrower Company or any a Restricted Subsidiary of the Company (and, in the case of any and if such Restricted Subsidiary making such dividend or distributionis not a Wholly-Owned Subsidiary, to its other holders of its Capital Stock on no more than a pro rata basis, measured by value), (ii) purchase, redeem, retire or otherwise acquire for value any Capital Stock of the Borrower Company held by Persons other than the Borrower or a Restricted Subsidiary of the Company or any Capital Stock of a Restricted Subsidiary of the Company held by any Affiliate of the Company, other than another Restricted Subsidiary (in either case, other than in exchange for its Capital Stock (other than any acquisition of Capital Stock deemed to occur upon the exercise of options if such Capital Stock represents a portion of the exercise price thereofDisqualified Stock)), (iii) voluntarily purchase, repurchase, redeem, defease or otherwise voluntarily acquire or retire for value, prior to scheduled maturity, scheduled repayment or scheduled sinking fund payment, any Junior Debt Subordinated Obligations (other than a the purchase, repurchase, redemption, defeasance repurchase or other acquisition or retirement for value of Subordinated Obligations purchased in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case due within one year of the date of such purchase, repurchase, redemption, defeasance repurchase or other acquisition or retirement), acquisition) or (iv) make any Investment (other than a Permitted Investment) in any Person (any such dividend, distribution, purchase, redemption, repurchase, redemption, defeasance, other acquisition or acquisition, retirement or Investment being herein referred to in clauses (i) through (iv) as a “Restricted Payment”"RESTRICTED PAYMENT"), if at the time the Borrower Company or such Restricted Subsidiary makes such Restricted Payment: (1) a Default or Event of Default shall have occurred and be continuing (or would result therefrom); or (2) the Company and its Restricted Subsidiaries could not Incur an additional $1.00 of Indebtedness pursuant to paragraph (a) under SECTION 3.3; or (3) the aggregate amount of such Restricted Payment after giving effect thereto:and all other Restricted Payments declared or made subsequent to the Issue Date would exceed the sum of: (A) 50% of Consolidated Net Income accrued during the period (treated as one accounting period) from the Issue Date to the end of the most recent fiscal quarter ending prior to the date of such Restricted Payment as to which financial results are available (or, in case such Consolidated Net Income is a deficit, minus 100% of such deficit); (B) the aggregate Net Cash Proceeds received by the Company from the issue or sale of its Capital Stock (other than Disqualified Stock) or other capital contributions subsequent to the Issue Date (other than net proceeds to the extent (x) used to redeem Securities or (y) received from an issuance or sale of such Capital Stock to a Subsidiary of the Company or an employee stock ownership plan or similar trust to the extent such sale to an employee stock ownership plan or similar trust is financed by loans from or guaranteed by the Company or any Restricted Subsidiary unless such loans have been repaid with cash on or prior to the date of determination); (C) the amount by which Indebtedness of the Company is reduced on the Company's balance sheet upon the conversion or exchange (other than by a Subsidiary of the Company) subsequent to the Issue Date of any Indebtedness of the Company convertible or exchangeable for Capital Stock of the Company (less the amount of any cash, or other property, distributed by the Company upon such conversion or exchange); and (D) the amount equal to the net reduction in Investments (other than Permitted Investments) made by the Company or any of its Restricted Subsidiaries in any Person resulting from (i) repurchases or redemptions of such Investments by such Person, proceeds realized upon the sale of such Investment to an unaffiliated purchaser, repayments of loans or advances or other transfers of assets as a return of capital or similar payment (excluding by way of dividend or distribution) by such Person to the Company or any Restricted Subsidiary of the Company or (ii) the redesignation of Unrestricted Subsidiaries as Restricted Subsidiaries (valued in each case as provided in the definition of "Investment") not to exceed, in the case of any Unrestricted Subsidiary, the amount of Investments (excluding Permitted Investments) previously made by the Company or any Restricted Subsidiary in such Unrestricted Subsidiary, which amount was included in the calculation of the amount of Restricted Payments; PROVIDED, HOWEVER, that no amount will be included under this clause (D) to the extent it is already included in Consolidated Net Income.

Limitation on Restricted Payments. (a) The Borrower shall Company will not, and shall will not cause or permit any Restricted SubsidiarySubsidiary to, directly or indirectly: declare or pay any dividend on, or make any distribution to holders of, any shares of the Company’s Capital Stock (other than dividends or distributions payable solely in shares of its Qualified Capital Stock or in options, warrants or other rights to acquire shares of such Qualified Capital Stock); purchase, redeem, defease or otherwise acquire or retire for value (except for redemptions payable in shares of the Company’s Qualified Capital Stock or in options, warrants or other rights to acquire shares of such Qualified Capital Stock), directly or indirectly, the Company’s Capital Stock or any Capital Stock of any Affiliate of the Company (other than Capital Stock of any Wholly Owned Restricted Subsidiary of the Company) or options, warrants or other rights to (i) acquire such Capital Stock; other than, to the extent applicable, as contemplated by any applicable intercompany note substantially in the form of Annex A hereto, make any principal payment on, or repurchase, redeem, defease, retire or otherwise acquire for value, prior to any scheduled principal payment, sinking fund payment or maturity, any Subordinated Indebtedness or any Indebtedness evidenced by the ViSalus Promissory Notes; declare or pay any dividend or distribution on any Capital Stock of any Restricted Subsidiary to any Person (other than (a) to the Company or any of its Wholly Owned Restricted Subsidiaries or (b) dividends or distributions made by a Restricted Subsidiary on a pro rata basis to all stockholders (or other holders of Capital Stock of) of such Restricted Subsidiary, including by ViSalus to its stockholders in accordance with ViSalus’s articles of incorporation); or make any distribution Investment in any Person (other than any Permitted Investments) (any of the foregoing actions described in clauses (i) through (v) above, other than any such action that is a Permitted Payment (as defined below), collectively, “Restricted Payments”) (the amount of any such Restricted Payment, if other than cash, shall be the Fair Market Value of the assets proposed to be transferred), unless: immediately before and immediately after giving effect to such proposed Restricted Payment on a pro forma basis, no Default or Event of Default shall have occurred and be continuing; immediately before and immediately after giving effect to such Restricted Payment on a pro forma basis, the Company could incur $1.00 of additional Indebtedness (other than Permitted Indebtedness) under the provisions of clause (a) of Section 10.08; and after giving effect to the proposed Restricted Payment, the aggregate amount of all such Restricted Payments declared or made after the Issue Date and all Designation Amounts does not exceed the sum (the “Restricted Payment Basket”) of: 50% of the aggregate Consolidated Net Income of the Company accrued on a cumulative basis during the period beginning on the first day of the Company’s fiscal quarter beginning after the Issue Date and ending on the last day of the Company’s last fiscal quarter ending prior to the date of the Restricted Payment (or, if such aggregate cumulative Consolidated Net Income shall be a loss, minus 100% of such loss); the aggregate Net Cash Proceeds received after the Issue Date by the Company either (I) as capital contributions in respect the form of common equity to the Company or (II) from the issuance or sale (other than to any of its Subsidiaries) of Qualified Capital Stock of the Company or any options, warrants or rights to purchase such Qualified Capital Stock of the Company (except, in each case, to the extent such proceeds are used to purchase, redeem or otherwise retire Capital Stock or Subordinated Indebtedness as set forth below in clause (ii) or (iii) of paragraph (b) below) (and excluding the Net Cash Proceeds from the issuance of Qualified Capital Stock financed, directly or indirectly, using funds borrowed from the Company or any Subsidiary until and to the extent such borrowing is repaid); the aggregate Net Cash Proceeds received after the Issue Date by the Company (other than from any of its Subsidiaries) upon the exercise of any options, warrants or rights to purchase Qualified Capital Stock of the Company (and excluding the Net Cash Proceeds from the exercise of any options, warrants or rights to purchase Qualified Capital Stock financed, directly or indirectly, using funds borrowed from the Company or any Subsidiary until and to the extent such borrowing is repaid); the aggregate Net Cash Proceeds received after the Issue Date by the Company from the conversion or exchange, if any, of debt securities or Disqualified Capital Stock of the Company or its Restricted Subsidiaries into or for Qualified Capital Stock of the Company plus, to the extent such debt securities or Disqualified Capital Stock were issued after the Issue Date, the aggregate of Net Cash Proceeds from their original issuance (and excluding the Net Cash Proceeds from the conversion or exchange of debt securities or Disqualified Capital Stock financed, directly or indirectly, using funds borrowed from the Company or any Subsidiary until and to the extent such borrowing is repaid); in the case of the disposition or repayment of any Investment constituting a Restricted Payment made after the Issue Date, an amount (to the extent not already included in Consolidated Net Income) equal to the cash return of capital with respect to such Investment, less the cost of the disposition of such Investment and net of taxes; and in the case of the designation of an Unrestricted Subsidiary as a Restricted Subsidiary (as long as the designation of such Subsidiary as an Unrestricted Subsidiary was deemed a Restricted Payment), the Fair Market Value of the Company’s interest in such Subsidiary; provided that such amount shall not in any case exceed the amount of the Restricted Payment deemed made at the time the Subsidiary was designated as an Unrestricted Subsidiary; provided that Restricted Payments for (I) the repurchase, retirement or other acquisition or retirement for value of the Company’s Capital Stock (but not ViSalus’s Capital Stock) and/or (II) the payment of cash dividends on the Company’s Capital Stock (but not ViSalus’s Capital Stock) shall only be made (x) if and to the extent there are any unused amounts available under the Restricted Payments Basket at the time of such Restricted Payment (and any such Restricted Payment shall be counted as a usage of the Restricted Payment Basket), (y) if the Company and its Restricted Subsidiaries have no less than $50.0 million of unrestricted cash, cash equivalents and short term investments on their consolidated balance sheet as of the most recently ended fiscal quarter prior to any such Restricted Payment and without giving effect to such Restricted Payment and (z) if the aggregate amount of Restricted Payments made under clauses (I) and (II) of this proviso shall not exceed in any fiscal year $12.5 million (with unused amounts in any fiscal year being carried over to succeeding fiscal years); Notwithstanding the foregoing, and in the case of clauses (ii) through (iv) and (vi) and (vii) below, so long as no Default or Event of Default is continuing or would arise therefrom, the foregoing provisions shall not prohibit the following actions (each of clauses (i) through (vii) being referred to as a “Permitted Payment”), but subject to the first proviso in clause (c) of this Section 10.09: the payment of any dividend within 75 days after the date of declaration thereof, if at such date of declaration such payment was permitted by the provisions of this Indenture, including paragraph (a) of this Section, and such payment shall have been deemed to have been paid on such date of declaration and shall not have been deemed a “Permitted Payment” for purposes of the calculation required by paragraph (a) of this Section 10.09; the repurchase, redemption, or other acquisition or retirement for value of any shares of any class of Capital Stock of the Company in exchange for (including any such payment exchange pursuant to the exercise of a conversion right or privilege in connection with any merger which cash is paid in lieu of the issuance of fractional shares), or consolidation out of the Net Cash Proceeds of a substantially concurrent issuance and sale for cash (other than to which the Borrower is a partySubsidiary) except (x) dividends or distributions payable solely in its of, other shares of Qualified Capital Stock of the Company; provided that the Net Cash Proceeds from the issuance of such shares of Qualified Capital Stock are excluded from clause (3)(B) of paragraph (a) of this Section 10.09; the repurchase, redemption, defeasance, retirement or acquisition for value or payment of principal of any Subordinated Indebtedness in exchange for, or in an amount not in excess of the Net Cash Proceeds of, a substantially concurrent issuance and sale for cash (other than to any Subsidiary of the Company) of any Qualified Capital Stock of the Company; provided that the Net Cash Proceeds from the issuance of such shares of Qualified Capital Stock are excluded from clause (3)(B) of paragraph (a) of this Section 10.09; the repurchase, redemption, defeasance, retirement, refinancing, acquisition for value or payment of principal of any Subordinated Indebtedness (other than Disqualified Capital Stock) (as used in this subclause, a “refinancing”) through the substantially concurrent issuance of new Subordinated Indebtedness of the Company; provided that any such new Subordinated Indebtedness (A) shall be in a principal amount that does not exceed the principal amount so refinanced (or, if such Subordinated Indebtedness provides for an amount less than the principal amount thereof to be due and payable upon a declaration of acceleration thereof, then such lesser amount as of the date of determination), plus the lesser of (1) the stated amount of any premium or other payment required to be paid in connection with such a refinancing pursuant to the terms of the Indebtedness being refinanced or (2) the amount of premium or other payment actually paid at such time to refinance the Indebtedness, plus, in either case, the amount of expenses of the Company incurred in connection with such refinancing; (B) has an Average Life to Stated Maturity greater than the remaining Average Life to Stated Maturity of the Securities; (C) has a Stated Maturity for its final scheduled principal payment later than the Stated Maturity for the final scheduled principal payment of the Securities; and (yD) dividends or distributions payable is expressly subordinated in right of payment to the Borrower or any Restricted Subsidiary (and, in Securities at least to the case of any such Restricted Subsidiary making such dividend or distribution, same extent as the Subordinated Indebtedness to other holders of its Capital Stock on no more than a pro rata basis, measured by value), (ii) purchase, redeem, retire or otherwise acquire for value any Capital Stock of be refinanced; [Intentionally Omitted];the ViSalus Recapitalization; the Borrower held by Persons other than the Borrower or a Restricted Subsidiary (other than any acquisition Blyth October 2013 Dividend; and repurchases of Capital Stock and all warrants, options or other rights to acquire Capital Stock, deemed to occur upon the exercise of options any options, warrants, convertible securities, or settlement of any restricted stock or restricted stock units, if such the Capital Stock represents a portion of the exercise price of such options, warrants, convertible securities, restricted stock or restricted stock units and repurchases of Capital Stock deemed to occur upon the withholding of a portion of the Capital Stock granted or awarded to any employee to pay for taxes payable by such employee upon such grant or award, or the vesting of such grant or award; Notwithstanding the foregoing, (i) ViSalus (or the Company, pursuant to its guarantee of the applicable obligation of ViSalus) may effect the ViSalus Redemption on or after December 31, 2017; provided that, notwithstanding anything to the contrary in this Section 10.09, and for the avoidance of doubt, the Company will not, and will not cause or permit any Restricted Subsidiary to, directly or indirectly effect the ViSalus Redemption prior to December 31, 2017, (ii) ViSalus may redeem its Capital Stock (in addition to any other redemption permitted under this Indenture) by the payment of the redemption price therefor (or applicable portion thereof), ) with the issuance of the ViSalus Promissory Notes which qualify as Permitted Indebtedness under clause (xii) of the definition thereof and (iii) voluntarily purchaseVesting Retention Transactions may be consummated; provided, repurchasefurther, redeemhowever, defease or otherwise voluntarily acquire or retire for value, prior to scheduled maturity, scheduled repayment or scheduled sinking fund payment, any Junior Debt (other than a purchase, repurchase, redemption, defeasance or other acquisition or retirement for value in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case due within one year of the date of such purchase, repurchase, redemption, defeasance or other acquisition or retirementthat it is understood that neither this Section 10.09(c), or (ivnor the reference in Section 10.01(b) make any Investment (other than a Permitted Investment) in any Person (any such dividend, distribution, purchase, repurchase, redemption, defeasance, other acquisition or retirement or Investment being herein referred to as a “Restricted Payment”the first proviso of this Section 10.01(c), if at shall, or shall be interpreted to, prevent the time the Borrower or such Restricted Subsidiary makes such Restricted Payment after giving effect thereto:Visalus Recapitalization.

Limitation on Restricted Payments. (a) The Borrower Company shall not, and shall not permit any Restricted SubsidiarySubsidiary to, directly or indirectly, to (i) declare or pay any dividend dividend, or make any distribution on distribution, of any kind or character (whether in cash, property or securities) in respect of its the Capital Stock of the Company or any Restricted Subsidiary or to the holders thereof in their capacity as such (including excluding (a) any such payment dividends or distributions to the extent payable in connection with any merger shares of the Capital Stock of the Company (other than Redeemable Interests) or consolidation in options, warrants or other rights to which acquire the Borrower is a party) except Capital Stock of the Company (xother than Redeemable Interests), (b) dividends or distributions payable solely in its Capital Stock (other than Disqualified Stock) by a Restricted Subsidiary to the Company or another Wholly Owned Restricted Subsidiary and (yc) the payment of pro rata dividends or distributions payable to the Borrower or any by a Restricted Subsidiary (and, to holders of both minority and majority interests in the case of any such Restricted Subsidiary making such dividend or distribution, to other holders of its Capital Stock on no more than a pro rata basis, measured by valueSubsidiary), (ii) purchase, redeem or otherwise acquire or retire for value (a) any Capital Stock of the Company or any Capital Stock of or other ownership interests in any Subsidiary or any Affiliate or Related Person of the Company or (b) any options, warrants or rights to purchase or acquire shares of Capital Stock of the Company or any Capital Stock of or other ownership interests in any Subsidiary or any Affiliate or Related Person of the Company, excluding, in each case of (a) and (b) of this clause (ii), the purchase, redemption, acquisition or retirement by any Restricted Subsidiary of any of its Capital Stock, other ownership interests or options, warrants or rights to purchase such Capital Stock or other ownership interests, in each case, owned by the Company or a Wholly Owned Restricted Subsidiary, (iii) make any Investment that is not a Permitted Investment or (iv) redeem, defease, repurchase, retire or otherwise acquire for value any Capital Stock of the Borrower held by Persons other than the Borrower or a Restricted Subsidiary (other than any acquisition of Capital Stock deemed to occur upon the exercise of options if such Capital Stock represents a portion of the exercise price thereof), (iii) voluntarily purchase, repurchase, redeem, defease or otherwise voluntarily acquire or retire for value, value prior to any scheduled maturity, scheduled repayment or scheduled sinking fund payment, any Junior Debt (other than a purchase, repurchase, redemption, defeasance or other acquisition or retirement for value in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case due within one year of the date Company that is subordinate in right of such purchase, repurchase, redemption, defeasance or other acquisition or retirement), or payment to the Notes (each of the transactions described in Clauses (i) through (iv) make any Investment (other than being a Permitted Investment) in any Person (any such dividend, distribution, purchase, repurchase, redemption, defeasance, other acquisition or retirement or Investment being herein referred to as a “"Restricted Payment”"), if at the time the Borrower or such Restricted Subsidiary makes such Restricted Payment after giving effect theretoif:

Limitation on Restricted Payments. (a) The Borrower shall Company will not, and shall will not permit any of its Restricted SubsidiarySubsidiaries, directly or indirectly, to (i) declare or pay any dividend or make any distribution on or in respect of its Capital Stock (including any such payment in connection with any merger or consolidation to which involving the Borrower is a partyCompany or any of its Restricted Subsidiaries) except (xA) dividends or distributions payable solely in its Capital Stock of the Company (other than Disqualified Stock) or in options, warrants or other rights to purchase such Capital Stock; and (yB) dividends or distributions payable to the Borrower Company or any a Restricted Subsidiary (and, in the case of any and if such Restricted Subsidiary making such dividend or distributionis not a Wholly-Owned Subsidiary, to its other holders of its common Capital Stock on no more than a pro rata basis, measured by value), ; (ii) purchase, redeem, retire or otherwise acquire for value any Capital Stock of the Borrower Company or any direct or indirect parent of the Company held by Persons other than the Borrower Company or a Restricted Subsidiary (other than any acquisition of in exchange for Capital Stock deemed to occur upon the exercise of options if such Capital Stock represents a portion of the exercise price thereofCompany (other than Disqualified Stock), ); (iii) voluntarily purchase, repurchase, redeem, defease or otherwise voluntarily acquire or retire for value, prior to scheduled maturity, scheduled repayment or scheduled sinking fund payment, any Junior Debt Subordinated Obligations or Guarantor Subordinated Obligations (other than a the purchase, repurchase, redemption, defeasance repurchase or other acquisition of Subordinated Obligations or retirement for value Guarantor Subordinated Obligations purchased in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case due within one year of the date of such purchase, repurchase, redemption, defeasance repurchase or other acquisition or retirementacquisition), ; or (iv) make any Restricted Investment (other than a Permitted Investment) in any Person Person; (any such dividend, distribution, purchase, redemption, repurchase, redemption, defeasance, other acquisition or acquisition, retirement or Restricted Investment being herein referred to in clauses (i) through (iv) shall be referred to herein as a “Restricted Payment”), if at the time the Borrower Company or such Restricted Subsidiary makes such Restricted Payment after giving effect theretoPayment:

Limitation on Restricted Payments. (a) The Borrower Issuer shall not, and shall not permit any Restricted SubsidiarySubsidiary to, directly or indirectly, to (i1) declare or pay any dividend or make any distribution on or in with respect of to its Capital Stock (including any such payment in connection with any merger or consolidation to which the Borrower is a party) except other than (x) dividends or distributions payable solely in shares of its Capital Stock (other than Disqualified Stock) or in options, warrants or other rights to acquire shares of such Capital Stock and (y) pro rata dividends or distributions payable to on common stock of Restricted Subsidiaries held by minority stockholders) held by Persons other than the Borrower Issuer or any Restricted Subsidiary (and, in the case of any such Restricted Subsidiary making such dividend or distribution, to other holders of its Capital Stock on no more than a pro rata basis, measured by value)Restricted Subsidiaries, (ii2) purchase, call for redemption or redeem, retire or otherwise acquire for value any shares of Capital Stock of (A) the Issuer (including options, warrants or other rights to acquire such shares of Capital Stock) held by any Person or (B) a Restricted Subsidiary (including options, warrants or other rights to acquire such shares of Capital Stock) held by any Affiliate of the Issuer (other than a Wholly Owned Restricted Subsidiary) or any holder (or any Affiliate of such holder) of 10% or more of the Capital Stock of the Borrower held by Persons other than the Borrower or a Restricted Subsidiary (other than any acquisition of Capital Stock deemed to occur upon the exercise of options if such Capital Stock represents a portion of the exercise price thereof)Issuer, (iii3) voluntarily purchasemake any voluntary or optional principal payment, or voluntary or optional redemption, repurchase, redeemdefeasance, defease or otherwise voluntarily acquire or retire for value, prior to scheduled maturity, scheduled repayment or scheduled sinking fund payment, any Junior Debt (other than a purchase, repurchase, redemption, defeasance or other acquisition or retirement for value in anticipation value, of satisfying a sinking fund obligation, principal installment or final maturity, in each case due within one year Indebtedness of the date Issuer that is subordinated in right of such purchase, repurchase, redemption, defeasance payment to the Securities or other acquisition or retirement), any Indebtedness of a Subsidiary Guarantor that is subordinated in right of payment to a Note Guarantee or (iv4) make any Investment (Investment, other than a Permitted Investment) , in any Person (such payments or any such dividend, distribution, purchase, repurchase, redemption, defeasance, other acquisition or retirement or Investment actions described in clauses (1) through (4) above being herein referred to as a collectively “Restricted PaymentPayments”)) if, if at the time the Borrower or such Restricted Subsidiary makes such Restricted Payment of, and after giving effect theretoto, the proposed Restricted Payment:

Limitation on Restricted Payments. (a) The Parent Borrower shall not, and shall not permit any Restricted Subsidiary, directly or indirectly, to (i) declare or pay any dividend or make any distribution or redeem any of its share capital, share premium reserve or special reserve (including, without limitation, the account 115 of the Luxembourg standard chart of accounts (plan comptable)) on or in respect of its Capital Stock (including any such payment in connection with any merger or consolidation to which the Parent Borrower is a party) except (x) dividends or distributions payable solely in its Capital Stock (other than Disqualified Stock) and (y) dividends or distributions payable to the Parent Borrower or any Restricted Subsidiary (and, in the case of any such Restricted Subsidiary making such dividend or distribution, to other holders of its Capital Stock on no more than a pro rata basis, measured by value), (ii) purchase, redeem, retire or otherwise acquire for value any Capital Stock of the Parent Borrower held by Persons other than the Parent Borrower or a Restricted Subsidiary (other than any acquisition of Capital Stock deemed to occur upon the exercise of options if such Capital Stock represents a portion of the exercise price thereof), (iii) pay or prepay principal, interest or otherwise on the Shareholder Loans or Subordinated Debt Funding (other than payment of interest by increasing the principal amount of such Shareholder Loans or Subordinated Debt Funding) or otherwise purchase, repurchase, redeem, defease or otherwise acquire or retire for value, prior to scheduled maturity, scheduled repayment or scheduled sinking fund payment, Shareholder Loans or Subordinated Debt Funding, (iv) voluntarily purchase, repurchase, redeem, defease or otherwise voluntarily acquire or retire for value, prior to scheduled maturity, scheduled repayment or scheduled sinking fund payment, any Junior Debt (other than a purchase, repurchase, redemption, defeasance or other acquisition or retirement for value in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case due within one year of the date of such purchase, repurchase, redemption, defeasance or other acquisition or retirement), ) or (ivv) make any Investment (other than a Permitted Investment) in any Person (any such dividend, distribution, purchase, repurchase, redemption, defeasance, other acquisition or retirement or Investment being herein referred to as a “Restricted Payment”), if at the time the Parent Borrower or such Restricted Subsidiary makes such Restricted Payment after giving effect thereto:

Limitation on Restricted Payments. (a) The Borrower Company shall not, and shall not permit any Restricted Subsidiary, directly or indirectly, to (i) declare or pay any dividend or dividend, make any distribution on or in respect of its Capital Stock or make any similar payment (including any such payment of Patronage or any payment in connection with any merger or consolidation involving the Company or any Subsidiary of the Company) to which the Borrower is a party) direct or indirect holders of its Capital Stock, except (x1) dividends or distributions payable solely in its Capital Stock (other than Disqualified Stock or Preferred Stock) and ), (y2) dividends or distributions payable to the Borrower Company or any a Restricted Subsidiary (and, in the case of any if such Restricted Subsidiary making such dividend has shareholders other than the Company or distributionother Restricted Subsidiaries, to its other holders of its Capital Stock shareholders on no more than a pro rata basis, measured by value)) and (3) dividends paid in respect of the Capital Securities, (ii) purchase, repurchase, redeem, retire retire, make any revolvement payment or otherwise acquire for value any Capital Stock of the Borrower Company or any Restricted Subsidiary held by Persons other than the Borrower Company or a Restricted Subsidiary (other than any acquisition of Capital Stock it being understood that amounts owed from Members that can be offset against Patronage payable to such Members shall be deemed not to occur upon the exercise of options if such Capital Stock represents a portion of the exercise price thereofbe covered by this clause (ii)), (iii) voluntarily purchase, repurchase, redeem, retire, defease or otherwise voluntarily acquire or retire for value, prior to scheduled maturity, scheduled repayment or scheduled sinking fund payment, payment any Junior Debt Subordinated Obligations or any Indebtedness owed to the trust entity that has issued the Capital Securities (other than a the purchase, repurchase, redemption, retirement, defeasance or other acquisition or retirement for value of Subordinated Obligations acquired in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case due within one year of the date of such purchase, repurchase, redemption, defeasance or other acquisition or retirement), acquisition) or (iv) make any Investment (other than a Permitted Investment) in any Person (any such dividend, distribution, payment, purchase, redemption, repurchase, redemptiondefeasance, defeasanceretirement, other acquisition or retirement or Investment described in the foregoing items (i), (ii), (iii) and (iv) being herein referred to as a “"Restricted Payment”), ") if at the time the Borrower Company or such Restricted Subsidiary makes such Restricted Payment after giving effect theretoPayment:

Limitation on Restricted Payments. (a) The Borrower shall WCI will not, and shall will not permit any Restricted SubsidiarySubsidiary to, directly or indirectly, to (i) declare or pay any dividend or make any distribution on or in respect of its Capital Stock (including any such payment in connection with any merger or consolidation to which the Borrower is a party) except (x) other than dividends or distributions payable solely in shares of its or such Restricted Subsidiary's Capital Stock (other than Disqualified Redeemable Stock) held by such holders or in options, warrants or other rights to acquire such shares of Capital Stock) other than such Capital Stock held by WCI or any of its Restricted Subsidiaries (and (y) other than pro rata dividends or distributions payable to the Borrower or any on Common Stock of Restricted Subsidiary (and, in the case of any such Restricted Subsidiary making such dividend or distribution, to other holders of its Capital Stock on no more than a pro rata basis, measured by valueSubsidiaries), ; (ii) purchaserepurchase, redeem, retire or otherwise acquire for value any shares of Capital Stock of the Borrower WCI (including options, warrants or other rights to acquire such shares of Capital Stock) held by Persons other than the Borrower or a any Wholly Owned Restricted Subsidiary (other than any acquisition Subsidiaries of Capital Stock deemed to occur upon the exercise of options if such Capital Stock represents a portion of the exercise price thereof), WCI; (iii) voluntarily purchasemake any voluntary or optional principal payment, or voluntary or optional redemption, repurchase, redeemdefeasance, defease or otherwise voluntarily acquire or retire for value, prior to scheduled maturity, scheduled repayment or scheduled sinking fund payment, any Junior Debt (other than a purchase, repurchase, redemption, defeasance or other acquisition or retirement for value value, of Indebtedness of WCI that is subordinated in anticipation right of satisfying a sinking fund obligation, principal installment or final maturity, in each case due within one year of payment to the date of such purchase, repurchase, redemption, defeasance or other acquisition or retirement), Equipment Note Guarantee; or (iv) make any Investment (Investment, other than a Permitted Investment, in any Person (such payments or any other actions described in clauses (i) through (iv) being collectively "Restricted Payments") if, at the time of, and after giving effect to, the proposed Restricted Payment: (A) a Default or Event of Default shall have occurred and be continuing, (B) except with respect to any Investment (other than an Investment consisting of the designation of a Restricted Subsidiary as an Unrestricted Subsidiary), WCI could not Incur at least $1.00 of Indebtedness under the first paragraph of Section 4.03 or (C) the aggregate amount expended for all Restricted Payments (the amount so expended, if other than in cash, to be determined in good faith by the Board of Directors, whose determination shall be conclusive and evidenced by a Board Resolution) after the Closing Date shall exceed the sum of (1) 50% of the aggregate amount of the Adjusted Consolidated Net Income (or, if the Adjusted Consolidated Net Income is a loss, minus 100% of such amount) (determined by excluding income resulting from transfers of assets by WCI or a Restricted Subsidiary to an Unrestricted Subsidiary) accrued on a cumulative basis during the period (taken as one accounting period) beginning on the first day of the fiscal quarter immediately following the Closing Date and ending on the last day of the last fiscal quarter preceding the Transaction Date for which reports have been filed pursuant to Section 4.18 plus (2) the aggregate Net Cash Proceeds received by WCI after the Closing Date from the issuance and sale permitted by this Indenture of its Capital Stock (other than Redeemable Stock) to a Person who is not a Subsidiary of WCI, or from the issuance to a Person who is not a Subsidiary of WCI of any options, warrants or other rights to acquire Capital Stock of WCI (in each case, exclusive of any convertible Indebtedness, Redeemable Stock or any options, warrants or other rights that are redeemable at the option of the Holder, or are required to be redeemed, prior to the Stated Maturity of the Securities) plus (3) an amount equal to the net reduction in Investments (other than reductions in Permitted Investments and other than reductions in Investments made pursuant to clauses (vi) or (vii) of the second paragraph of this Section 4.04) in any Person resulting from payments of interest on Indebtedness, dividends, repayments of loans or advances, or other transfers of assets, in each case to WCI or any Restricted Subsidiary (except to the extent any such dividend, distribution, purchase, repurchase, redemption, defeasance, other acquisition or retirement or Investment being herein referred to as a “Restricted Payment”payment is included in the calculation of Adjusted Consolidated Net Income), if at or from redesignations of Unrestricted Subsidiaries as Restricted Subsidiaries (valued in each case as provided in the time definition of "Investments"), not to exceed the Borrower or amount of Investments previously made by WCI and its Restricted Subsidiaries in such Restricted Subsidiary makes such Restricted Payment after giving effect theretoPerson. The foregoing provision shall not be violated by reason of:

Limitation on Restricted Payments. No Indenture Obligor will, nor will it cause, permit or suffer any of its Obligor Subsidiaries to, (a) The Borrower shall not, and shall not permit any Restricted Subsidiary, directly or indirectly, to (i) declare or pay any dividend dividends or make any distribution other distributions (including through mergers, liquidations or other transactions but excluding, for the avoidance of doubt, the issuance of New Common Stock pursuant to the Plan of Reorganization) on or in respect any class of its Capital Stock (including of any such payment in connection with any merger Indenture Obligor or consolidation to which the Borrower is a party) except (x) dividends or distributions payable solely in its Capital Stock Obligor Subsidiaries (other than Disqualified Stock) and (y) dividends or distributions payable to PCI or by a Wholly-Owned Subsidiary of PCI or of the Borrower or any Restricted Subsidiary (and, in the case of any such Restricted Subsidiary making such dividend or distribution, to other holders Company on account of its Capital Stock held by PCI or the Company or another Subsidiary of PCI or the Company or payable or paid in shares of Capital Stock of the Company other than preferred stock or redeemable stock), (b) make any payment on no more account of, or set apart money for a sinking or other analogous fund for, the purchase, redemption or other retirement of such Capital Stock, (c) purchase, defease, redeem or otherwise retire any Subordinated Indebtedness (other than a pro rata basiswith the proceeds of the issuance of Capital Stock of PCI which is permitted to be issued pursuant to the terms of this Indenture or with the proceeds of Subordinated Indebtedness which is permitted to be incurred pursuant to the terms of this Indenture), measured by valueor (d) make any Investment, either directly or indirectly, whether in cash or property or in obligations of any Indenture Obligor or its Obligor Subsidiaries (all of the foregoing being called "Restricted Payments"). Notwithstanding the foregoing, any Obligor may make (i) Permitted Issuances, (ii) purchase, redeem, retire or otherwise acquire for value any Capital Stock of Restricted Payments made pursuant to the Borrower held by Persons other than the Borrower or a Restricted Subsidiary (other than any acquisition of Capital Stock deemed to occur upon the exercise of options if such Capital Stock represents a portion of the exercise price thereof)Transaction Documents, (iii) voluntarily purchasePermitted Investments, repurchase, redeem, defease or otherwise voluntarily acquire or retire for value, prior to scheduled maturity, scheduled repayment or scheduled sinking fund payment, any Junior Debt (other than a purchase, repurchase, redemption, defeasance or other acquisition or retirement for value in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case due within one year of the date of such purchase, repurchase, redemption, defeasance or other acquisition or retirement), or and (iv) make any Investment (other than a Permitted Investment) in any Person (any such dividend, distribution, purchase, repurchase, redemption, defeasance, other acquisition or retirement or Investment being herein referred regularly scheduled payments on Subordinated Indebtedness which is permitted to as a “Restricted Payment”), if at be incurred pursuant to the time the Borrower or such Restricted Subsidiary makes such Restricted Payment after giving effect thereto:terms of this Indenture.

Limitation on Restricted Payments. (a) The Borrower shall Company will not, and shall will not permit any Restricted SubsidiarySubsidiary to, directly or indirectly, to (i) declare or pay any dividend or make any distribution on or in with respect of to its Capital Stock (including any such payment in connection with any merger or consolidation to which the Borrower is a party) except other than (x) dividends or distributions payable solely in shares of its Capital Stock (other than Disqualified Stock) or in options, warrants or other rights to acquire shares of such Capital Stock and (y) pro rata dividends or distributions payable to on Common Stock of Restricted Subsidiaries held by minority stockholders) held by Persons other than the Borrower Company or any Restricted Subsidiary (and, in the case of any such Restricted Subsidiary making such dividend or distribution, to other holders of its Capital Stock on no more than a pro rata basis, measured by value)Restricted Subsidiaries, (ii) purchase, redeem, retire or otherwise acquire for value any shares of Capital Stock of (A) the Company or an Unrestricted Subsidiary (including options, warrants or other rights to acquire such shares of Capital Stock) held by any Person or (B) a Restricted Subsidiary (including options, warrants or other rights to acquire such shares of Capital Stock) held by any Affiliate of the Company (other than a Wholly Owned Restricted Subsidiary) or any holder (or any Affiliate of such holder) of 5% or more of the Capital Stock of the Borrower held by Persons other than the Borrower or a Restricted Subsidiary (other than any acquisition of Capital Stock deemed to occur upon the exercise of options if such Capital Stock represents a portion of the exercise price thereof)Company, (iii) voluntarily purchasemake any voluntary or optional principal payment, or voluntary or optional redemption, repurchase, redeemdefeasance, defease or otherwise voluntarily acquire or retire for value, prior to scheduled maturity, scheduled repayment or scheduled sinking fund payment, any Junior Debt (other than a purchase, repurchase, redemption, defeasance or other acquisition or retirement for value value, of Indebtedness of the Company that is subordinated in right of payment to the Notes (other than, in each case, the purchase, repurchase or acquisition of Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each any case due within one year of after the date of such purchase, repurchase or acquisition) or (iv) make any Investment, other than a Permitted Investment, in any Person (such payments or any other actions described in clauses (i) through (iv) above being collectively "Restricted Payments") if, at the time of, and after giving effect to, the proposed Restricted Payment: (A) a Default or Event of Default shall have occurred and be continuing, (B) the Company could not Incur at least $1.00 of Indebtedness under the first paragraph of Section 4.03 or (C) the aggregate amount of all Restricted Payments (the amount, if other than in cash, to be determined in good faith by the Board of Directors, whose determination shall be conclusive and evidenced by a Board Resolution) made after the Closing Date shall exceed the sum of (1) 50% of the aggregate amount of the Adjusted Consolidated Net Income (or, if the Adjusted Consolidated Net Income is a loss, minus 100% of the amount of such loss) (determined by excluding income resulting from transfers of assets by the Company or a Restricted Subsidiary to an Unrestricted Subsidiary) accrued on a cumulative basis during the period (taken as one accounting period) beginning on the first day of the fiscal quarter immediately following the Closing Date and ending on the last day of the last fiscal quarter preceding the Transaction Date for which reports have been filed with the Commission or provided to the Trustee pursuant to Section 4.18 plus (2) the aggregate Net Cash Proceeds received by the Company after the Closing Date from the issuance and sale permitted by this Indenture of its Capital Stock (other than Disqualified Stock) to a Person who is not a Subsidiary of the Company, including an issuance or sale permitted by this Indenture of Indebtedness of the Company for cash subsequent to the Closing Date upon the conversion of such Indebtedness into Capital Stock (other than Disqualified Stock) of the Company, or from the issuance to a Person who is not a Subsidiary of the Company of any options, warrants or other rights to acquire Capital Stock of the Company (in each case, exclusive of any Disqualified Stock or any options, warrants or other rights that are redeemable at the option of the holder, or are required to be redeemed, prior to the Stated Maturity of the Notes) plus (3) an amount equal to the net reduction in Investments (other than reductions in Permitted Investments and Investments made pursuant to clause (vi), (ix) or (x) of the following paragraph) in any Person resulting from payments of interest on Indebtedness, dividends, repayments of loans or advances, or other transfers of assets, in each case to the Company or any Restricted Subsidiary or from the Net Cash Proceeds from the sale of any such Investment (except, in each case, to the extent any such payment or proceeds are included in the calculation of Adjusted Consolidated Net Income), or from redesignations of Unrestricted Subsidiaries as Restricted Subsidiaries (valued in each case as provided in the definition of "Investment"), not to exceed, in each case, the amount of Investments previously made by the Company or any Restricted Subsidiary in such Person or Unrestricted Subsidiary. The foregoing provision shall not be violated by reason of: (i) the payment of any dividend within 60 days after the date of declaration thereof if, at said date of declaration, such payment would comply with the foregoing paragraph; (ii) the redemption, repurchase, redemption, defeasance or other acquisition or retirement)retirement for value of Indebtedness that is subordinated in right of payment to the Notes including premium, if any, and accrued and unpaid interest, with the proceeds of, or in exchange for, Indebtedness Incurred under clause (iii) of the second paragraph of Section 4.03(a); (iii) the repurchase, redemption or other acquisition of Capital Stock of the Company or an Unrestricted Subsidiary (or options, warrants or other rights to acquire such Capital Stock) in exchange for, or out of the proceeds of a substantially concurrent offering of, shares of Capital Stock (other than Disqualified Stock) of the Company (or options, warrants or other rights to acquire such Capital Stock); (iv) make the making of any Investment (other than a Permitted Investment) in any Person (any such dividend, distribution, purchase, principal payment or the repurchase, redemption, defeasance, other acquisition or retirement or Investment being herein referred to as a “Restricted Payment”), if at the time the Borrower or such Restricted Subsidiary makes such Restricted Payment after giving effect thereto:,

Limitation on Restricted Payments. (a) The Borrower Company shall not, and shall cause its Restricted Subsidiaries not permit any Restricted Subsidiaryto, directly or indirectly, to (i) declare or pay any dividend on, or make any distribution on or in respect of its to the holders of, any Capital Stock (including any such payment in connection with any merger or consolidation to which of the Borrower is a party) except Company, other than (x) dividends or distributions payable solely in its Capital Stock of the Company (other than Disqualified Stock) or (y) pro rata dividends or distributions on Capital Stock (other than Disqualified Stock) and (y) dividends or distributions payable to the Borrower or any Restricted Subsidiary (and, in the case of any such Restricted Subsidiary making such dividend or distribution, to other holders of its Capital Stock on no more than a pro rata basis, measured by value), Restricted Subsidiaries; (ii) purchaserepay, redeem, retire redeem or otherwise acquire or retire for value (other than through the issuance of Capital Stock of the Company (excluding Disqualified Stock)) any Capital Stock of the Borrower Company or any of its Restricted Subsidiaries, other than any such repayment, redemption, acquisition or retirement of such Capital Stock held by Persons other than (x) the Borrower Company or its Restricted Subsidiaries or (y) in the case of Capital Stock of a Restricted Subsidiary of the Company, any Person that is not an Affiliate (other than any acquisition of Capital Stock deemed to occur upon the exercise of options if such Capital Stock represents a portion another Restricted Subsidiary) of the exercise price thereof), Company; (iii) voluntarily purchaseprepay, repurchaserepay, redeem, defease or otherwise voluntarily acquire or retire for valuevalue (other than through the issuance of Capital Stock of the Company (excluding Disqualified Stock)), prior to any scheduled maturity, scheduled repayment or scheduled sinking fund payment, any Junior Debt (other than a purchase, repurchase, redemption, defeasance or other acquisition or retirement for value in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case due within one year Indebtedness of the date Company or any of such purchaseits Restricted Subsidiaries that ranks junior in right of payment to the Notes or the Guarantees, repurchaseas applicable, redemption, defeasance or other acquisition or retirementexcept as permitted pursuant to Section 5.14(b)(vii), ; or (iv) make any Investment (in any Affiliate of the Company other than a Permitted Investment(A) an Investment by the Company or any of its Restricted Subsidiaries in the Company or any such Restricted Subsidiaries or in TFM, or in any Person Subsidiary in connection with a Qualifying PEMEX Securitization Transaction, or (B) an Investment by the Company or any such dividendRestricted Subsidiary consisting of non-cash consideration received in connection with a Qualifying Disposition (the foregoing actions set forth in clauses (i) through (iv), distribution, purchase, repurchase, redemption, defeasance, other acquisition or retirement or Investment being herein referred to hereinafter as a “Restricted PaymentPayments”), ) if at the time the Borrower or of any such Restricted Subsidiary makes Payment, and after giving effect thereto on a pro forma basis, (1) a Default or an Event of Default shall have occurred and be continuing, (2) on a pro forma basis, the Consolidated Debt Service Coverage Ratio for the Company for the four fiscal quarters immediately preceding such incurrence for which quarterly financial statements are available in accordance with Section 5.08, taken as one period, is greater than 2.0 to 1.0, or (3) the aggregate amount of all Restricted Payments declared or made after the Initial Issuance Date including such Restricted Payment after giving effect thereto(the value of any such payment, if other than cash, shall be the value determined in good faith by the Board of Directors and evidenced by a Board Resolution) shall exceed the sum of:

Limitation on Restricted Payments. (a) The Borrower shall Company will not, and shall will not permit any Restricted Subsidiary, directly or indirectly, to (i) declare or pay any dividend or make any distribution on or in with respect of to its Capital Stock (including any such payment in connection with any merger or consolidation to which the Borrower is a party) except other than (x) dividends or distributions payable solely in shares of its Capital Stock (other than Disqualified Stock) or in options, warrants or other rights to acquire shares of such Capital Stock and (y) pro rata dividends or distributions payable to on Common Stock of Restricted Subsidiaries held by minority stockholders, provided that such dividends do not in the Borrower aggregate exceed the minority stockholders' pro rata share of such Restricted Subsidiaries' net income from the first day of the fiscal quarter beginning immediately following the Closing Date) held by Persons other than the Company or any Restricted Subsidiary (and, in the case of any such Restricted Subsidiary making such dividend or distribution, to other holders of its Capital Stock on no more than a pro rata basis, measured by value)Restricted Subsidiaries, (ii) purchase, redeem, retire or otherwise acquire for value any shares of Capital Stock of the Borrower Company, any Guarantor or an Unrestricted Subsidiary (including options, warrants or other rights to acquire such shares of Capital Stock) held by Persons other than the Borrower or a Restricted Subsidiary (other than any acquisition of Capital Stock deemed to occur upon the exercise of options if such Capital Stock represents a portion of the exercise price thereof)Company and its Wholly Owned Subsidiaries, (iii) voluntarily purchasemake any voluntary or optional principal payment, or voluntary or optional redemption, repurchase, redeemdefeasance, defease or otherwise voluntarily acquire or retire for value, prior to scheduled maturity, scheduled repayment or scheduled sinking fund payment, any Junior Debt (other than a purchase, repurchase, redemption, defeasance or other acquisition or retirement for value value, of Indebtedness of the Company that is subordinated in right of payment to the Notes or of any Guarantor that is subordinated to the Note Guarantee (other than, in each case, the purchase, repurchase or the acquisition of Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each any case due within one year of the date of such purchase, repurchase, redemption, defeasance or other acquisition or retirement), acquisition) or (iv) make any Investment (Investment, other than a Permitted Investment, in any Person (such payments or any other actions described in clauses (i) through (iv) being collectively "Restricted Payments") if, at the time of, and after giving effect to, the proposed Restricted Payment: (A) a Default or Event of Default shall have occurred and be continuing, (B) except with respect to Investments and dividends on the Common Stock of any Guarantor, the Company could not Incur at least $1.00 of Indebtedness under the first paragraph of Section 4.03 or (C) the aggregate amount of all Restricted Payments (the amount, if other than in cash, to be determined in good faith by the Board of Directors, whose determination shall be conclusive and evidenced by a Board Resolution) made after the Closing Date shall exceed the sum of (1) 50% of the aggregate amount of the Adjusted Consolidated Net Income (or, if the Adjusted Consolidated Net Income is a loss, minus 100% of the amount of such loss) (determined by excluding income resulting from transfers of assets by the Company or a Restricted Subsidiary to an Unrestricted Subsidiary) accrued on a cumulative basis during the period (taken as one accounting period) beginning on the first day of the fiscal quarter immediately following the Closing Date and ending on the last day of the last fiscal quarter preceding the Transaction Date for which reports have been filed pursuant to plus (2) the aggregate Net Cash Proceeds received by the Company or any Guarantor after the Closing Date from the issuance and sale permitted by the Indentures of its Capital Stock (other than Disqualified Stock) to a Person who is not a Subsidiary of the Company or any Guarantor or from the issuance to a Person who is not a Subsidiary of the Company or any Guarantor of any options, warrants or other rights to acquire Capital Stock of the Company (in each case, exclusive of any Disqualified Stock or any options, warrants or other rights that are redeemable at the option of the holder, or are required to be redeemed, prior to the Stated Maturity of the Notes), in each case except to the extent such Net Cash Proceeds are used to Incur Indebtedness pursuant to clause (viii) of the second paragraph under Section 4.03, plus (3) an amount equal to the net reduction in Investments (other than reductions in Permitted Investments) in any Person (resulting from payments of interest on Indebtedness, dividends, repayments of loans or advances, or other transfers of assets, in each case to the Company or any Restricted Subsidiary or from the Net Cash Proceeds from the sale of any such dividendInvestment (except, distributionin each case, purchase, repurchase, redemption, defeasance, other acquisition to the extent any such payment or retirement or Investment being herein referred to as a “Restricted Payment”proceeds are included in the calculation of Adjusted Consolidated Net Income), if at or from redesignations of Unrestricted Subsidiaries as Restricted Subsidiaries (valued in each case as provided in the time definition of "Investments"), not to exceed, in each case, the Borrower amount of Investments previously made by the Company or such any Restricted Subsidiary makes in such Restricted Payment after giving effect theretoPerson or Unrestricted Subsidiary. The foregoing provision shall not be violated by reason of:

Limitation on Restricted Payments. (a) The Borrower Company shall not, and shall not permit any of its Restricted SubsidiarySubsidiaries to, directly or indirectly, to : (i) declare or pay any dividend or make any distribution on account of Volume Holdings', the Company's or in respect any of its Capital Stock (Restricted Subsidiaries' Equity Interests, including any such payment made in connection with any merger or consolidation to which involving the Borrower is a party) except Company (xother than (A) dividends or distributions by the Company payable solely in its Capital Stock Equity Interests (other than Disqualified Stock) and of the Company or (yB) dividends or distributions payable to the Borrower or any by a Restricted Subsidiary (andso long as, in the case of any such dividend or distribution payable on or in respect of any class or series of securities issued by a Restricted Subsidiary making such dividend or distribution, to other holders of its Capital Stock on no more than a pro rata basisWholly Owned Restricted Subsidiary, measured by value), (ii) purchase, redeem, retire or otherwise acquire for value any Capital Stock of the Borrower held by Persons other than the Borrower Company or a Restricted Subsidiary receives at least its pro rata share of such dividend or distribution in accordance with its Equity Interests in such class or series of securities); (other than ii) purchase or otherwise acquire or retire for value any acquisition Equity Interests of Capital Stock deemed to occur upon Volume Holdings or the exercise of options if such Capital Stock represents a portion of the exercise price thereof), Company; (iii) voluntarily purchasemake any principal payment on, or redeem, repurchase, redeem, defease or otherwise voluntarily acquire or retire for value, in each case prior to scheduled maturity, any scheduled repayment or scheduled sinking fund paymentmaturity, any Junior Debt Subordinated Indebtedness (other than a purchasethe payment, redemption, repurchase, redemptiondefeasance, defeasance or other acquisition or retirement for value of (A) Subordinated Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case due within one year of the date of such purchasepayment, redemption, repurchase, redemptiondefeasance, defeasance or other acquisition or retirementretirement and (B) Indebtedness permitted under clauses (vii) and (ix) of Section 4.03(b), ); or (iv) make any Restricted Investment (all such payments and other than a Permitted Investmentactions set forth in clauses (i) in any Person through (any such dividend, distribution, purchase, repurchase, redemption, defeasance, other acquisition or retirement or Investment iv) above being herein collectively referred to as a “"Restricted Payment”Payments"), if unless, at the time the Borrower or of such Restricted Subsidiary makes such Restricted Payment after giving effect theretoPayment:

Limitation on Restricted Payments. (a) The Borrower Company shall not, and shall not permit any of its Restricted SubsidiarySubsidiaries, directly or indirectly, to (i1) declare or pay any dividend or make any distribution (whether made in cash, securities or other property) on or in respect of its Capital Stock (including any such payment in connection with any merger or consolidation to which involving the Borrower is a partyCompany or any of its Restricted Subsidiaries) except except: (xA) dividends or distributions payable solely in its Capital Stock of the Company (other than Disqualified Stock) or in options, warrants or other rights to purchase such Capital Stock of the Company; and (yB) dividends or distributions payable to the Borrower Company or any a Restricted Subsidiary (and, in the case of any and if such Restricted Subsidiary making such dividend or distributionis not a Wholly-Owned Subsidiary, to its other holders of its common Capital Stock on no more than a pro rata basis, measured by value), ; (ii2) purchase, redeem, retire or otherwise acquire for value any Capital Stock of the Borrower Company or any direct or indirect parent of the Company held by Persons other than the Borrower Company or a Restricted Subsidiary (other than any acquisition of in exchange for Capital Stock deemed to occur upon the exercise of options if such Capital Stock represents a portion of the exercise price thereofCompany (other than Disqualified Stock), ); (iii3) voluntarily purchase, repurchase, redeem, defease or otherwise voluntarily acquire or retire for value, prior to scheduled maturity, scheduled repayment or scheduled sinking fund payment, any Junior Debt Subordinated Obligations or Guarantor Subordinated Obligations (other than a the purchase, repurchase, redemption, defeasance or other acquisition or retirement for value of Subordinated Obligations or Guarantor Subordinated Obligations purchased in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case due within one year of the date of such purchase, repurchase, redemption, defeasance or other acquisition or retirement), ; or (iv4) make any Restricted Investment (other than a Permitted Investment) in any Person Person; (any such dividend, distribution, purchase, redemption, repurchase, redemption, defeasance, other acquisition or acquisition, retirement or Restricted Investment being herein referred to in clauses (1) through (4) of this Section 3.5(a) shall be referred to herein as a “"Restricted Payment”"), if at the time the Borrower Company or such Restricted Subsidiary makes such Restricted Payment Payment: (a) a Default shall have occurred and be continuing (or would result therefrom); or (b) the Company is not able to Incur an additional $1.00 of Indebtedness pursuant to Section 3.3(a) after giving effect thereto:effect, on a pro forma basis, to such Restricted Payment; or (c) the aggregate amount of such Restricted Payment and all other Restricted Payments declared or made subsequent to the Issue Date would exceed the sum of: (i) 50% of Consolidated Net Income for the period (treated as one accounting period) from the first day of the quarter in which the Issue Date occurs to the end of the most recent fiscal quarter ending prior to the date of such Restricted Payment for which financial statements are in existence (or, in case such Consolidated Net Income is a deficit, minus 100% of such deficit); (ii) 100% of the aggregate Net Cash Proceeds received by the Company from the issue or sale of its Capital Stock (other than Disqualified Stock) or other capital contributions subsequent to the Issue Date (other than Net Cash Proceeds received from an issuance or sale of such Capital Stock to a Subsidiary of the Company or an employee stock ownership plan, option plan or similar trust to the extent such sale to an employee stock ownership plan or similar trust is financed by loans from or Guaranteed by the Company or any Restricted Subsidiary unless such loans have been repaid with cash on or prior to the date of determination); (iii) the amount by which Indebtedness of the Company or its Restricted Subsidiaries is reduced on the Company's balance sheet upon the conversion or exchange (other than by a Subsidiary of the Company) subsequent to the Issue Date of any Indebtedness of the Company or its Restricted Subsidiaries convertible or exchangeable for Capital Stock (other than Disqualified Stock) of the Company (less the amount of any cash, or the fair market value of any other property, distributed by the Company upon such conversion or exchange); and (iv) the amount equal to the net reduction in Restricted Investments made by the Company or any of its Restricted Subsidiaries in any Person resulting from: (A) repurchases or redemptions of such Restricted Investments by such Person, proceeds realized upon the sale of such Restricted Investment to an unaffiliated purchaser, repayments of loans or advances or other transfers of assets (including by way of dividend or distribution) by such Person to the Company or any Restricted Subsidiary; or (B) the redesignation of Unrestricted Subsidiaries as Restricted Subsidiaries (valued in each case as provided in the definition of "Investment") not to exceed, in the case of any Unrestricted Subsidiary, the amount of Investments previously made by the Company or any Restricted Subsidiary in such Unrestricted Subsidiary, which amount in each case under this clause (iv) was included in the calculation of the amount of Restricted Payments; provided, however, that no amount will be included under this clause (iv) to the extent it is already included in Consolidated Net Income.

Limitation on Restricted Payments. (a) The Borrower shall Company will not, and shall will not permit any Restricted SubsidiarySubsidiary to, directly or indirectly, to (i) declare or pay any dividend or make any distribution on or in with respect of to its Capital Stock (including any such payment in connection with any merger or consolidation to which the Borrower is a party) except other than (x) dividends or distributions payable solely in shares of its Capital Stock (other than Disqualified Stock) or in options, warrants or other rights to acquire shares of such Capital Stock and (y) pro rata dividends or distributions payable to on Common Stock of Restricted Subsidiaries held by minority stockholders; PROVIDED that such dividends do not in the Borrower aggregate exceed the minority stockholders' pro rata share of such Restricted Subsidiaries' net income from the first day of the fiscal quarter beginning immediately following the Closing Date) held by Persons other than the Company or any Restricted Subsidiary (and, in the case of any such Restricted Subsidiary making such dividend or distribution, to other holders of its Capital Stock on no more than a pro rata basis, measured by value)Restricted Subsidiaries, (ii) purchase, redeem, retire or otherwise acquire for value any shares of Capital Stock of (x) the Company or an Unrestricted Subsidiary (including options, warrants or other rights to acquire such shares of Capital Stock) held by any Person other than the Company or any Wholly Owned Restricted Subsidiary or (y) a Restricted Subsidiary (including options, warrants or other rights to acquire such shares of Capital Stock) held by any Affiliate of the Company (other than a Wholly Owned Restricted Subsidiary) or any holder (or any Affiliate of such holder) of 5% or more of the Capital Stock of the Borrower held by Persons other than the Borrower or a Restricted Subsidiary (other than any acquisition of Capital Stock deemed to occur upon the exercise of options if such Capital Stock represents a portion of the exercise price thereof)Company, (iii) voluntarily purchasemake any voluntary or optional principal payment, or voluntary or optional redemption, repurchase, redeemdefeasance, defease or otherwise voluntarily acquire or retire for value, prior to scheduled maturity, scheduled repayment or scheduled sinking fund payment, any Junior Debt (other than a purchase, repurchase, redemption, defeasance or other acquisition or retirement for value value, of Indebtedness of the Company (other than Indebtedness outstanding on the Closing Date) that is subordinated in right of payment to the Notes (other than the purchase, repurchase or the acquisition of Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each any case due within one year of the date of such purchase, repurchase, redemption, defeasance or other acquisition or retirement), acquisition) or (iv) make any Investment (Investment, other than a Permitted Investment) , in any Person (such payments or any such dividend, distribution, purchase, repurchase, redemption, defeasance, other acquisition or retirement or Investment being herein referred to as a “Restricted Payment”), if at the time the Borrower or such Restricted Subsidiary makes such Restricted Payment after giving effect thereto:actions described in clauses

Limitation on Restricted Payments. (a) The Borrower Company shall not, and shall cause its Restricted Subsidiaries not permit any Restricted Subsidiaryto, directly or indirectly, to (i) declare or pay any dividend on, or make any distribution on or in respect of its to the holders of, any Capital Stock (including any such payment in connection with any merger or consolidation to which of the Borrower is a party) except (x) Company, other than dividends or distributions payable solely in its Capital Stock of the Company (other than Disqualified Stock) and (y) dividends or distributions payable to the Borrower or any Restricted Subsidiary (and, in the case of any such Restricted Subsidiary making such dividend or distribution, to other holders of its Capital Stock on no more than a pro rata basis, measured by value), ; (ii) purchaserepay, redeem, retire redeem or otherwise acquire or retire for value (other than through the issuance of Capital Stock of the Company (excluding Disqualified Stock)) any Capital Stock of the Borrower held by Persons other than the Borrower Company or a any of its Restricted Subsidiary (Subsidiaries, other than any such repayment, redemption, acquisition or retirement of Capital Stock deemed to occur upon the exercise of options if such Capital Stock represents a portion of held by the exercise price thereof), Company or its Restricted Subsidiaries; (iii) voluntarily purchaseprepay, repurchaserepay, redeem, defease or otherwise voluntarily acquire or retire for valuevalue (other than through the issuance of Capital Stock of the Company (excluding Disqualified Stock)), prior to any scheduled maturity, scheduled repayment or scheduled sinking fund payment, any Junior Debt (other than a purchase, repurchase, redemption, defeasance or other acquisition or retirement for value in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case due within one year Indebtedness of the date Company or any of such purchaseits Restricted Subsidiaries that ranks junior in right of payment to the Notes, repurchase, redemption, defeasance or other acquisition or retirementexcept as permitted pursuant to Section 5.14(b)(vii), ; or (iv) make any Investment (in any Affiliate of the Company other than a Permitted Investment(A) an Investment by the Company or any of its Restricted Subsidiaries in any Person (the Company or any such dividendRestricted Subsidiaries or in TFM or any other Affiliate that is bidding for or has obtained concessions or railroad assets from the Mexican government with respect to the ownership or operation of railroads in Mexico, distributionor (B) an Investment by the Company or any Restricted Subsidiary arising as a result of, purchaseor in connection with, repurchase, redemption, defeasance, other acquisition or retirement or Investment a Qualifying Disposition (the foregoing actions set forth in clauses (i) through (iv) being herein referred to hereinafter as a “Restricted Payment”), "RESTRICTED PAYMENTS") if at the time the Borrower or of any such Restricted Subsidiary makes Payment, and after giving effect thereto on a pro forma basis, (1) a Default or an Event of Default shall have occurred and be continuing, (2) the Consolidated Net Worth of the Company and its Restricted Subsidiaries shall be less than $250,000,000, (3) the Company could not incur at least $1.00 of additional Indebtedness pursuant to Section 5.14(a), or (4) the aggregate amount of all Restricted Payments declared or made after the Initial Issuance Date including such Restricted Payment after giving effect thereto(the value of any such payment, if other than cash, shall be the value determined in good faith by the Board of Directors and evidenced by a Board Resolution) shall exceed the sum of:

Limitation on Restricted Payments. (a) The Borrower shall Company will not, --------------------------------- and shall will not permit any Restricted SubsidiarySubsidiary to, directly or indirectly, to (i) declare or pay any dividend or make any distribution on or in with respect of to its Capital Stock (including any such payment in connection with any merger or consolidation to which the Borrower is a party) except other than (x) dividends or distributions payable solely in shares of its Capital Stock (other than Disqualified Redeemable Stock) or in options, warrants or other rights to acquire shares of such Capital Stock and (y) pro rata dividends or distributions payable to on Common Stock of Restricted Subsidiaries held by minority stockholders, provided that such dividends do not in the Borrower aggregate exceed the minority stockholders' pro rata share of such Restricted Subsidiaries' net income from the first day of the fiscal quarter beginning immediately following the Closing Date) held by Persons other than the Company or any Restricted Subsidiary (and, in the case of any such Restricted Subsidiary making such dividend or distribution, to other holders of its Capital Stock on no more than a pro rata basis, measured by value)Restricted Subsidiaries, (ii) purchase, redeem, retire or otherwise acquire for value any shares of Capital Stock of (A) the Company or an Unrestricted Subsidiary (including options, warrants or other rights to acquire such shares of Capital Stock) held by any Person or (B) a Restricted Subsidiary (including options, warrants or other rights to acquire such shares of Capital Stock) held by any Affiliate of the Company (other than a Wholly Owned Restricted Subsidiary) or any holder (or any Affiliate of such holder) of 5% or more of the Capital Stock of the Borrower held by Persons other than the Borrower or a Restricted Subsidiary (other than any acquisition of Capital Stock deemed to occur upon the exercise of options if such Capital Stock represents a portion of the exercise price thereof)Company, (iii) voluntarily purchasemake any voluntary or optional principal payment, or voluntary or optional redemption, repurchase, redeemdefeasance, defease or otherwise voluntarily acquire or retire for value, prior to scheduled maturity, scheduled repayment or scheduled sinking fund payment, any Junior Debt (other than a purchase, repurchase, redemption, defeasance or other acquisition or retirement for value value, of Indebtedness of the Company that is subordinated in right of payment to the Notes (other than, in each case, the purchase, repurchase or acquisition of Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each any case due within one year of after the date of such purchase, repurchase, redemption, defeasance repurchase or other acquisition or retirement), acquisition) or (iv) make any Investment (Investment, other than a Permitted Investment, in any Person (such payments or any other actions described in clauses (i) through (iv) above being collectively "Restricted Payments") if, at the time of, and after giving effect to, the proposed Restricted Payment: (A) a Default or Event of Default shall have occurred and be continuing, (B) the Company could not Incur at least $1.00 of Indebtedness under the first paragraph of Section 4.03(a) or (C) the aggregate amount of all Restricted Payments (the amount, if other than in cash, to be determined in good faith by the Board of Directors, whose determination shall be conclusive and evidenced by a Board Resolution) made after the Closing Date shall exceed the sum of (1) 50% of the aggregate amount of the Adjusted Consolidated Net Income (or, if the Adjusted Consolidated Net Income is a loss, minus 100% of the amount of such loss) (excluding, for purposes of such computation, income resulting from transfers of assets by the Company or a Restricted Subsidiary to an Unrestricted Subsidiary) accrued on a cumulative basis during the period (taken as one accounting period) beginning on the first day of the fiscal quarter immediately following the Closing Date and ending on the last day of the last fiscal quarter preceding the Transaction Date for which reports have been filed with the Commission or provided to the Trustee pursuant to Section 4.17 plus (2) the aggregate Net Cash Proceeds received by the Company after the Closing Date from a capital contribution or the issuance and sale permitted by this Indenture to a Person who is not a Subsidiary of the Company of (a) its Capital Stock (other than Redeemable Stock), (b) any options, warrants or other rights to acquire Capital Stock of the Company (in each case, exclusive of any Redeemable Stock or any options, warrants or other rights that are redeemable at the option of the holder, or are required to be redeemed, prior to the Stated Maturity of the Notes) and (c) Indebtedness of the Company that has been exchanged for or converted into Capital Stock of the Company (other than Redeemable Stock), in each case except to the extent such Net Cash Proceeds are used to Incur Indebtedness pursuant to clause (viii) of the second paragraph of Section 4.03(a), plus (3) an amount equal to the net reduction in Investments (other than reductions in Permitted Investments and reductions in Investments made pursuant to clause (vi) of the second paragraph of this Section 4.04) in any Person (resulting from payments of interest on Indebtedness, dividends, repayments of loans or advances, or other transfers of assets, in each case to the Company or any Restricted Subsidiary or from the Net Cash Proceeds from the sale of any such dividendInvestment (except, distributionin each case, purchase, repurchase, redemption, defeasance, other acquisition to the extent any such payment or retirement or Investment being herein referred to as a “Restricted Payment”proceeds is included in the calculation of Adjusted Consolidated Net Income), if at or from redesignations of Unrestricted Subsidiaries as Restricted Subsidiaries (valued in each case as provided in the time definition of "Investments"), not to exceed, in each case, the Borrower amount of Investments previously made by the Company or such any Restricted Subsidiary makes in such Restricted Payment after giving effect thereto:Person or Unrestricted Subsidiary.

Limitation on Restricted Payments. (a) The Borrower Company shall not, and shall not permit any of its Restricted SubsidiarySubsidiaries, directly or indirectly, to (i) declare or pay any dividend or make any distribution on or in respect of its Capital Stock (including any such payment in connection with any merger or consolidation to which involving the Borrower is a partyCompany or any of its Restricted Subsidiaries) except (xA) dividends or distributions payable solely in its Capital Stock (other than Disqualified Stock) or in options, warrants or other rights to purchase such Capital Stock and (yB) dividends or distributions payable to the Borrower Company or any a Restricted Subsidiary of the Company (and, in the case of any and if such Restricted Subsidiary making such dividend or distributionis not a Wholly-Owned Subsidiary, to its other holders of its Capital Stock on no more than a pro rata basis, measured by value), (ii) purchase, redeem, retire or otherwise acquire for value any Capital Stock of the Borrower Company held by Persons other than the Borrower or a Restricted Subsidiary of the Company or any Capital Stock of a Restricted Subsidiary of the Company held by any Affiliate of the Company, other than another Restricted Subsidiary (in either case, other than in exchange for its Capital Stock (other than any acquisition of Capital Stock deemed to occur upon the exercise of options if such Capital Stock represents a portion of the exercise price thereofDisqualified Stock)), (iii) voluntarily purchase, repurchase, redeem, defease or otherwise voluntarily acquire or retire for value, prior to scheduled maturity, scheduled repayment or scheduled sinking fund payment, any Junior Debt Subordinated Obligations (other than a the purchase, repurchase, redemption, defeasance repurchase or other acquisition or retirement for value of Subordinated Obligations purchased in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case due within one year of the date of such purchase, repurchase, redemption, defeasance repurchase or other acquisition or retirement), acquisition) or (iv) make any Investment (other than a Permitted Investment) in any Person (any such dividend, distribution, purchase, redemption, repurchase, redemption, defeasance, other acquisition or acquisition, retirement or Investment being herein referred to in clauses (i) through (iv) as a “"Restricted Payment”"), if at the time the Borrower Company or such Restricted Subsidiary makes such Restricted Payment: (1) a Default shall have occurred and be continuing (or would result therefrom); or (2) the Company shall not be able to incur an additional $1.00 of Indebtedness pursuant to paragraph (a) under Section 3.3 of this Indenture; or (3) the aggregate amount of such Restricted Payments and all other Restricted Payments declared or made subsequent to the Issue Date would exceed the sum of: (A) 50% of the Consolidated Net Income accrued during the period (treated as one accounting period) from the first day of the quarter in which the Issue Date occurs to the end of the most recent fiscal quarter ending prior to the date of such Restricted Payment after giving effect thereto:as to which financial results are available (or, in case such 48 42 Consolidated Net Income shall be a deficit, minus 100% of such deficit); (B) the aggregate Net Cash Proceeds received by the Company from the issue or sale of its Capital Stock (other than Disqualified Stock) or other capital contributions subsequent to the Issue Date (other than net proceeds received from an issuance or sale of such Capital Stock to a Subsidiary of the Company or an employee stock ownership plan or similar trust to the extent such sale to an employee stock ownership plan or similar trust is financed by loans from or guaranteed by the Company or any Restricted Subsidiary unless such loans have been repaid with cash on or prior to the date of determination); (C) the amount by which Indebtedness of the Company is reduced on the Company's balance sheet upon the conversion or exchange (other than by a Subsidiary of the Company) subsequent to the Issue Date of any Indebtedness of the Company convertible or exchangeable for Capital Stock of the Company (less the amount of any cash, or other property, distributed by the Company upon such conversion or exchange); (D) the amount equal to the net reduction in Investments made by the Company or any of its Restricted Subsidiaries in any Person resulting from (i) repurchases or redemptions of such Investments by such Person, proceeds realized upon the sale of such Investment to an unaffiliated purchaser, repayments of loans or advances or other transfers of assets (including by way of dividend or distribution) by such Person to the Company or any Restricted Subsidiary of the Company or (ii) the redesignation of Unrestricted Subsidiaries as Restricted Subsidiaries (valued in each case as provided in the definition of "Investment") not to exceed, in the case of any Unrestricted Subsidiary, the amount of Investments previously made by the Company or any Restricted Subsidiary in such Unrestricted Subsidiary, which amount was included in the calculation of the amount of Restricted Payments; provided, however, that no amount shall be included under this clause (D) to the extent it is already included in Consolidated Net Income and (E) until December 31, 1999, $1 million (reduced on a dollar for dollar basis by the sum of the amounts described in (A), (B), (C) and (D)). For purposes of this covenant, the amount of any Restricted Payments, if other than in cash, shall be determined in good faith by the Board of Directors as evidenced by a certificate filed with the Trustee, except that in the event the value of any non-cash consideration shall be $5 million or more, the value shall be as determined in writing by an Independent Appraiser.

Limitation on Restricted Payments. (a) The Borrower shall Company will not, and shall will not permit any Restricted Subsidiary, directly or indirectly, to (i) declare or pay any dividend or make any distribution on or in with respect of to its Capital Stock (including any such payment in connection with any merger or consolidation to which the Borrower is a party) except other than (x) dividends or distributions payable solely in shares of its Capital Stock (other than Disqualified Stock) or in options, warrants or other rights to acquire shares of such Capital Stock and (y) pro rata dividends or distributions payable to on Common Stock of Restricted Subsidiaries held by minority stockholders, provided that such dividends do not in the Borrower aggregate exceed the minority stockholders' pro rata share of such Restricted Subsidiaries' net income from the first day of the fiscal quarter beginning immediately following the Closing Date) held by Persons other than the Company or any Restricted Subsidiary (and, in the case of any such Restricted Subsidiary making such dividend or distribution, to other holders of its Capital Stock on no more than a pro rata basis, measured by value)Restricted Subsidiaries, (ii) purchase, redeem, retire or otherwise acquire for value any shares of Capital Stock of the Borrower Company, any Guarantor or an Unrestricted Subsidiary (including options, warrants or other rights to acquire such shares of Capital Stock) held by Persons other than the Borrower or a Restricted Subsidiary (other than any acquisition of Capital Stock deemed to occur upon the exercise of options if such Capital Stock represents a portion of the exercise price thereof)Company and its Wholly Owned Subsidiaries, (iii) voluntarily purchasemake any voluntary or optional principal payment, or voluntary or optional redemption, repurchase, redeemdefeasance, defease or otherwise voluntarily acquire or retire for value, prior to scheduled maturity, scheduled repayment or scheduled sinking fund payment, any Junior Debt (other than a purchase, repurchase, redemption, defeasance or other acquisition or retirement for value value, of Indebtedness of the Company that is subordinated in right of payment to the Debentures or of any Guarantor that is subordinated to the Subsidiary Guarantee (other than, in each case, the purchase, repurchase or the acquisition of Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each any case due within one (1) year of the date of acquisition) or (iv) make any Investment, other than a Permitted Investment, in any Person (such purchasepayments or any other actions described in clauses (i) through (iv) being collectively "Restricted Payments") if, at the time of, and after giving effect to, the proposed Restricted Payment: (A) a Potential Event of Default or Event of Default shall have occurred and be continuing, (B) except with respect to Investments and dividends on the Common Stock of any Guarantor, the Company could not Incur at least $1.00 of Indebtedness under the first paragraph of Section 13.5 or (C) the aggregate amount of all Restricted Payments (the amount, if other than in cash, to be determined in good faith by the Board of Directors, whose determination shall be conclusive and evidenced by a Board Resolution) made after the Closing Date shall exceed the sum of (1) fifty percent (50%) of the aggregate amount of the Adjusted Consolidated Net Income (or if the Adjusted Consolidated Net Income is a loss, minus 100% of the amount of such loss) (determined by excluding income resulting from transfers of assets by the Company or a Restricted Subsidiary to an Unrestricted Subsidiary) accrued on a cumulative basis during the period (taken as one (1) accounting period) beginning on the first day of the fiscal quarter immediately following the Closing Date and ending on the last day of the last fiscal quarter preceding the Transaction Date for which reports have been filed with the Commission plus (2) the aggregate Net Cash Proceeds received by the Company or any Guarantor after the Closing Date from the issuance and sale permitted by this Agreement of its Capital Stock (other than Disqualified Stock) to a Person who is not a Subsidiary of the Company or any Guarantor or from the issuance to a Person who is not a Subsidiary of the Company or any Guarantor of any options, warrants or other rights to acquire Capital Stock of the Company (in each case, exclusive of any Disqualified Stock or any options, warrants or other rights that are redeemable at the option of the holder, or are required to be redeemed, prior to the Stated Maturity of the Debentures), in each case except to the extent such Net Cash Proceeds are used to Incur Indebtedness pursuant to clause (viii) of the second paragraph of Section 13.5, plus (3) an amount equal to the net reduction in Investments (other than reductions in Permitted Investments) in any Person resulting from payments of interest on Indebtedness, dividends, repayments of loans or advances, or other transfers of assets, in each case to the Company or any Restricted Subsidiary or from the Net Cash Proceeds from the sale of any such Investment (except, in each case, to the extent any such payment or proceeds are included in the calculation of Adjusted Consolidated Net Income), or from redesignations of Unrestricted Subsidiaries as Restricted Subsidiaries (valued in each case as provided in the definition of "Investments"), not to exceed, in each case, the amount of Investments previously made by the Company or any Restricted Subsidiary in such Person or Unrestricted Subsidiary. The foregoing provision shall not be violated by reason of: (i) the payment of any dividend within sixty (60) days after the date of declaration thereof if, at said date of declaration, such payment would comply with the foregoing paragraph; (ii) the redemption, repurchase, redemption, defeasance or other acquisition or retirement for value of Indebtedness that is subordinated in right of payment to the Debentures including premium, if any, and accrued and unpaid interest, with the proceeds of, or in exchange for, Indebtedness Incurred under clause (iii) of the second paragraph of part (a) of Section 13.5; (iii) the repurchase, redemption or other acquisition of Capital Stock of the Company (or options, warrants or other rights to acquire such Capital Stock) in exchange for, or out of the proceeds of a substantially concurrent offering of, shares of Capital Stock (other than Disqualified Stock) of the Company; (iv) the making of any principal payment or the repurchase, redemption, retirement, defeasance or other acquisition for value of Indebtedness of the Company which is subordinated in right of payment to the Debentures in exchange for, or out of the proceeds of, a substantially concurrent offering of, shares of the Capital Stock of the Company (other than Disqualified Stock); (v) payments or distributions, to dissenting stockholders pursuant to applicable law, pursuant to or in connection with a consolidation, merger or transfer of assets that complies with the provisions of this Agreement applicable to mergers, consolidations and transfers of all or substantially all of the property and assets of the Company; (vi) the repurchase, redemption or other acquisition of (A) shares of Series A Preferred Stock or Series B Preferred Stock which were outstanding on the Closing Date and (B) shares of Preferred Stock pursuant to options that were outstanding on the Closing Date, in exchange for, or out of the proceeds of, an issuance of Indebtedness Incurred under clause (iii) of the second paragraph of part (a) of Section 13.5; (vii) Investments, to the extent the amount invested consists solely of Net Cash Proceeds received by the Company or any Guarantor within six months of the making of such Investment, from the issuance and sale permitted by this Agreement of its Capital Stock (other than Disqualified Stock) to a Person who is not a Subsidiary of the Company or any Guarantor; (viii) Investments, the sum of which does not exceed $5 million at any one time outstanding; (ix) cash payments, not to exceed $3 million, in lieu of the issuance of fractional shares of Capital Stock of the Company upon the exercise of any warrants to buy, or upon the conversion of any securities convertible into, Capital Stock of the Company or (x) the purchase, redemption, retirement or other acquisition for value of the warrants issued to the holders of the Senior Notes in connection with their acquisition of the Senior Notes pursuant to a repurchase offer provided for in the warrant agreement, dated as of January 31, 1997, between the Company and Bankers Trust Company as warrant agent; provided that, except in the case of clauses (i) and (iii), no Potential Event of Default or Event of Default shall have occurred and be continuing or occur as a consequence of the actions or payments set forth therein. Each Restricted Payment permitted pursuant to the preceding paragraph (other than the Restricted Payment referred to in clause (ii) thereof and an exchange of Capital Stock for Capital Stock or Indebtedness referred to in clause (iii) or (iv) make thereof) and the Net Cash Proceeds from any issuance of Capital Stock referred to in clauses (iii) and (iv) shall be included in calculating whether the conditions of clause (C) of the first paragraph of this Section 13.6 have been met with respect to any subsequent Restricted Payments. In the event the proceeds of an issuance of Capital Stock of the Company are used for the redemption, repurchase or other acquisition of the Debentures, or Indebtedness that is pari passu with the Debentures, then the Net Cash Proceeds of such issuance shall be included in clause (C) of the first paragraph of this Section 13.6 only to the extent such proceeds are not, within six months, used for such redemption, repurchase or other acquisition of Indebtedness. Any Restricted Payments made other than in cash shall be valued at fair market value. The amount of any Investment "outstanding" at any time shall be deemed to be equal to the amount of such Investment on the date made, less the return of capital to the Company and its Restricted Subsidiaries with respect to such Investment (other than a Permitted Investment) in any Person (any up to the amount of such dividend, distribution, purchase, repurchase, redemption, defeasance, other acquisition or retirement or Investment being herein referred to as a “Restricted Payment”on the date made), if at the time the Borrower or such Restricted Subsidiary makes such Restricted Payment after giving effect thereto:.

Limitation on Restricted Payments. (a) The Borrower shall a. For so long as any shares of Convertible Preferred Stock are issued and outstanding, the corporation will not, and shall will not permit any Restricted Subsidiaryof its Subsidiaries to, directly or indirectly, to (i) declare or pay any dividend or make any other payment or distribution on account of the corporation's or in respect any of its Capital Stock Subsidiary's Equity Interests (including including, without limitation, any such payment in connection with any merger or consolidation to which the Borrower is a partyconsolidation) except (x) other than dividends or distributions (A) paid or payable solely in its Capital Stock Equity Interests (other than Disqualified Stock) and of the corporation or (yB) dividends paid or distributions payable to the Borrower corporation or any Restricted Subsidiary (and, in of the case of any such Restricted Subsidiary making such dividend or distribution, to other holders of its Capital Stock on no more than a pro rata basis, measured by value), corporation; (ii) purchase, redeem, retire or otherwise acquire or retire for value any Capital Stock Equity Interests of the Borrower held by Persons corporation or any direct or indirect parent of the corporation or other than Affiliate of the Borrower corporation or a Restricted any Subsidiary of the corporation (other than any acquisition of Capital Stock deemed to occur upon such Equity Interests owned by the exercise of options if such Capital Stock represents a portion corporation or any Subsidiary of the exercise price thereofcorporation), ; (iii) voluntarily make any principal payment on, or purchase, repurchase, redeem, defease defease, or otherwise voluntarily acquire or retire for value, value prior to the scheduled maturity, scheduled repayment repayment, or scheduled sinking fund payment, any Junior Debt Subordinated Indebtedness (other than a except, if no Voting Rights Triggering Event is continuing or would result therefrom, any such payment, purchase, repurchase, redemption, defeasance defeasance, or other acquisition or retirement for value in anticipation made (A) out of satisfying Excess Proceeds available for general corporate purposes if such payment or other action is required by the indenture or other agreement or instrument pursuant to which such Subordinated Indebtedness was issued, (B) upon the occurrence of a sinking fund obligation, principal installment Change of Control if (1) such payment or final maturity, in each case due within one year other action is required by the indenture or other agreement or instrument pursuant to which such Subordinated Indebtedness was issued and (2) the corporation has purchased all of the date Subordinated Notes properly tendered pursuant to the terms thereof or (3) upon the redemption of such purchase, repurchase, redemption, defeasance or other acquisition or retirementthe Convertible Preferred Stock in accordance with the terms of these Articles of Incorporation), ; or (iv) make any Restricted Investment (all such payments and other than a Permitted Investmentactions set forth in clauses (i) in any Person through (any such dividend, distribution, purchase, repurchase, redemption, defeasance, other acquisition or retirement or Investment iv) above being herein collectively referred to as a “"Restricted Payment”Payments"), if unless, at the time the Borrower or such Restricted Subsidiary makes such Restricted Payment of and after giving effect theretoto such Restricted Payment:

Limitation on Restricted Payments. (a) The Borrower shall Company will not, and shall will not permit any Restricted Subsidiary, directly or indirectly, to (i) declare or pay any dividend or make any distribution on or in respect any class of its Capital Stock (including any such payment in connection with any merger or consolidation to which the Borrower is a party) except (x) other than dividends or distributions payable solely in shares of its or such Restricted Subsidiary's Capital Stock (other than Disqualified Redeemable Stock) and (yof the same class as such Capital Stock or in options, warrants or other rights to acquire shares of such Capital Stock) dividends or distributions payable to held by Persons other than the Borrower Company or any Restricted Subsidiary (and, in the case of any such Restricted Subsidiary making such dividend or distribution, to other holders of its Capital Stock on no more than a pro rata basis, measured by value)Restricted Subsidiaries which are Wholly Owned Subsidiaries, (ii) purchase, redeem, retire or otherwise acquire for value any shares of Capital Stock of the Borrower Company, any Restricted Subsidiary or any Unrestricted Subsidiary (including options, warrants or other rights to acquire any shares of such Capital Stock) held by Persons other than the Borrower Company or a another Restricted Subsidiary (other than any acquisition of Capital Stock deemed to occur upon the exercise of options if such Capital Stock represents that is a portion of the exercise price thereof)Wholly Owned Subsidiary, (iii) voluntarily purchasemake any voluntary or optional principal payment, or voluntary or optional redemption, repurchase, redeem, defease or otherwise voluntarily acquire or retire for value, prior to scheduled maturity, scheduled repayment or scheduled sinking fund payment, any Junior Debt (other than a purchase, repurchase, redemption, defeasance or other acquisition or retirement for value in anticipation value, of satisfying a sinking fund obligation, principal installment or final maturity, in each case due within one year Indebtedness of the date Company that is expressly subordinated in right of such purchasepayment to the Securities, repurchase, redemption, defeasance or other acquisition or retirement), or (iv) make any Investment in any Affiliate (other than the Company or a Permitted Restricted Subsidiary that is a Ninety-Five Percent Owned Subsidiary, including any Person that becomes such a Restricted Subsidiary by virtue of such Investment) or (v) make any Investment in any Person Joint Venture (such payments or any such dividend, distribution, purchase, repurchase, redemption, defeasance, other acquisition or retirement or Investment actions described in clauses (i) through (v) being herein referred to as a “collectively "Restricted Payment”), if Payments") unless at the time the Borrower or such Restricted Subsidiary makes such Restricted Payment of and after giving effect theretoto the proposed Restricted Payment:

Limitation on Restricted Payments. The Guarantor (ai) The Borrower shall may not, and shall will not permit any Restricted Subsidiary, directly or indirectly, to (i) declare or pay any dividend dividend, or make any distribution on or distribution, in respect of its Capital Stock (including any such payment in connection with any merger or consolidation to which the Borrower is a party) except holders thereof, excluding (x) any dividends or distributions payable solely in shares of its Capital Stock (other than Disqualified Stock) and or in options, warrants or other rights to acquire its Capital Stock (other than Disqualified Stock), (y) any dividends or distributions payable paid to the Borrower Guarantor or any a Restricted Subsidiary Subsidiary, or (and, in the case of any such Restricted Subsidiary making such dividend or distribution, to other holders of its Capital Stock on no more than a z) pro rata basis, measured by value)dividends paid on shares of Common Stock of Restricted Subsidiaries, (ii) may not, and may not permit any Restricted Subsidiary to, purchase, redeem, or otherwise retire or otherwise acquire for value (a) any Capital Stock of the Borrower held by Persons other than Guarantor or any Related Person of the Borrower or a Restricted Subsidiary Guarantor (other than a permitted refinancing) or (b) any acquisition options, warrants or rights to purchase or acquire shares of Capital Stock deemed to occur upon of the exercise Guarantor or any Related Person of options if such the Guarantor or any securities convertible or exchangeable into shares of Capital Stock represents a portion of the exercise price thereofGuarantor or any Related Person of the Guarantor (other than a permitted refinancing), (iii) voluntarily purchasemay not make, or permit any Restricted Subsidiary to make, any Investment, except for Permitted Investments, and (iv) may not, and may not permit any Restricted Subsidiary to, redeem, defease, repurchase, redeem, defease retire or otherwise voluntarily acquire or retire for value, prior to any scheduled maturity, scheduled repayment or scheduled sinking fund payment, any Junior Debt of the Guarantor or the Issuer which is subordinate in right of payment to the Securities or the Securities Guarantee (each of clauses (i) through (iv) being a "Restricted Payment") if: (1) an Event of Default, or an event that with the passing of time or the giving of notice, or both, would constitute an Event of Default, shall have occurred and be continuing, or (2) except with respect to Investments, upon giving effect to such Restricted Payment, the Guarantor could not Incur at least $1.00 of additional Debt pursuant to the first paragraph of Section 10.08, or (3) upon giving effect to such Restricted Payment, the aggregate of all Restricted Payments from the date hereof exceeds the sum of: (a)(x) Consolidated Cash Flow Available for Fixed Charges since the end of the last full fiscal quarter prior to the date hereof through the last day of the last full fiscal quarter ending immediately preceding the date of such Restricted Payment (the "Calculation Period") minus (y) 1.5 times Consolidated Interest Expense for the Calculation Period plus (b) an amount equal to the net reduction in Investments (other than a purchasereductions in Permitted Investments) in any Person resulting from payments of interest on Debt, repurchasedividends, redemptionrepayments of loans or advances, defeasance or other acquisition or retirement for value in anticipation transfers of satisfying a sinking fund obligation, principal installment or final maturityassets, in each case due within one year to the Guarantor or any Restricted Subsidiary or from the Net Cash Proceeds from the sale of any such Investment (except, in each case, to the extent any such payment or proceeds are included in the calculation of Consolidated Cash Flow Available for Fixed Charges for the Calculation Period), or from redesignations of Unrestricted Subsidiaries as Restricted Subsidiaries (valued in each case as provided in the definition of Investment), not to exceed, in each case, the amount of Investments previously made by the Guarantor or any Restricted Subsidiary in such Person or Unrestricted Subsidiary plus (c) an amount equal to the aggregate net proceeds received after the date hereof, including the fair market value of property other than cash (determined in good faith by the Board of Directors as evidenced by a resolution of the Board of Directors filed with the Trustee), as capital contributions to the Guarantor or from the issuance (other than to a Subsidiary) of Capital Stock (other than Disqualified Stock) of the Guarantor and warrants, rights or options on Capital Stock (other than Disqualified Stock) of the Guarantor and the principal amount at maturity of Debt of the Guarantor or any Restricted Subsidiary that has been converted into Capital Stock (other than Disqualified Stock and other than by a Subsidiary) of the Guarantor after the date hereof plus (d) $30 million. Notwithstanding the foregoing, (i) the Guarantor may pay any dividend on Capital Stock of any class of the Guarantor within 60 days after the declaration thereof if, on the date when the dividend was declared, the Guarantor could have paid such dividend in accordance with the foregoing provisions, (ii) the Guarantor may make acquisitions of a minority equity interest in entities engaged in the Telecommunications Business; provided that (A) the acquisition of a majority equity interest in such entities is not then permitted or practicable under applicable law without regulatory consent or change of law, (B) the Board of Directors of the Guarantor determines in good faith that there is a substantial probability that such approval or change of law will be obtained, (C) the Guarantor or one of its Restricted Subsidiaries has the right to acquire Capital Stock representing a majority of the voting power of the Voting Stock of such purchaseentity upon receipt of regulatory consent or change of law and does acquire such Voting Stock reasonably promptly upon receipt of such consent or change of law and (D) in the event that such consent or change of law has not been obtained within 18 months of funding such Investment, the Guarantor or one of its Restricted Subsidiaries has the right to sell such minority equity interest to the Person from whom it acquired such interest, for consideration consisting of the consideration originally paid by the Guarantor and its Restricted Subsidiaries for such minority equity interest; (iii) the Guarantor may repurchase any shares of its Common Stock or options to acquire its Common Stock from Persons who were formerly directors, officers or employees of the Guarantor or any of its Subsidiaries, provided that the aggregate amount of all such repurchases made pursuant to this clause (iii) shall not exceed $6 million, plus the aggregate cash proceeds received by the Guarantor since the date hereof from issuances of its Common Stock or options to acquire its Common Stock to directors, officers and employees of the Guarantor or any of its Subsidiaries, (v) the Guarantor or a Restricted Subsidiary may redeem, defease, repurchase, redemptionretire or otherwise acquire or retire for value Debt of the Guarantor or the Issuer which is subordinated in right of payment to the Securities or the Security Guarantees, defeasance or other acquisition or retirement)as the case may be, in exchange for, or (iv) make any Investment out of the proceeds of a substantially concurrent sale (other than to a Permitted InvestmentSubsidiary) of, Capital Stock (other than Disqualified Stock of the Guarantor) or in a refinancing that satisfies the requirements of clause (iii) of the second paragraph of Section 10.08 and (vi) the Guarantor and its Subsidiaries may retire or repurchase any Person Capital Stock of the Guarantor or of any Subsidiary of the Guarantor in exchange for, or out of the proceeds of the substantially concurrent sale (other than to a Subsidiary of the Guarantor) of, Capital Stock (other than Disqualified Stock) of the Guarantor or any such dividend, distribution, purchase, repurchase, redemption, defeasance, other acquisition or retirement or Investment being herein referred to as a “Restricted Payment”), if at the time the Borrower or such Restricted Subsidiary makes such Restricted Payment after giving effect thereto:Subsidiary.

Limitation on Restricted Payments. (a) The Borrower shall Company will not, and shall will not permit any Restricted SubsidiarySubsidiary to, directly or indirectly, to (i) declare or pay any dividend or make any distribution on or in with respect of to its Capital Stock (including any such payment in connection with any merger or consolidation to which the Borrower is a party) except other than (x) dividends or distributions payable solely in shares of its Capital Stock (other than Disqualified Stock) or in options, warrants or other rights to acquire shares of such Capital Stock and (y) pro rata dividends or distributions payable to on Common Stock of Restricted Subsidiaries held by minority stockholders) held by Persons other than the Borrower Company or any Restricted Subsidiary (and, in the case of any such Restricted Subsidiary making such dividend or distribution, to other holders of its Capital Stock on no more than a pro rata basis, measured by value)Restricted Subsidiaries, (ii) purchase, redeem, retire or otherwise acquire for value any shares of Capital Stock of (A) the Company or an Unrestricted Subsidiary (including options, warrants or other rights to acquire such shares of Capital Stock) held by any Person or (B) a Restricted Subsidiary (including options, warrants or other rights to acquire such shares of Capital Stock) held by any Affiliate of the Company (other than a Wholly Owned Restricted Subsidiary) or any holder (or any Affiliate of such holder) of 5% or more of the Capital Stock of the Borrower held by Persons other than the Borrower or a Restricted Subsidiary (other than any acquisition of Capital Stock deemed to occur upon the exercise of options if such Capital Stock represents a portion of the exercise price thereof)Company, (iii) voluntarily purchasemake any voluntary or optional principal payment, or voluntary or optional redemption, repurchase, redeemdefeasance, defease or otherwise voluntarily acquire or retire for value, prior to scheduled maturity, scheduled repayment or scheduled sinking fund payment, any Junior Debt (other than a purchase, repurchase, redemption, defeasance or other acquisition or retirement for value in anticipation value, of satisfying a sinking fund obligation, principal installment or final maturity, in each case due within one year Indebtedness of the date Company that is subordinated in right of such purchase, repurchase, redemption, defeasance or other acquisition or retirement), payment to the Notes or (iv) make any Investment (Investment, other than a Permitted Investment, in any Person (such payments or any other actions described in clauses (i) through (iv) above being, collectively, "Restricted Payments") if, at the time of, and after giving effect to, the proposed Restricted Payment: (A) a Default or Event of Default shall have occurred and be continuing, (B) the Company could not Incur at least $1.00 of Indebtedness under the first paragraph of Section 4.03(a) or (C) the aggregate amount of all Restricted Payments (the amount, if other than in cash, to be determined in good faith by the Board of Directors, whose determination shall be conclusive and evidenced by a Board Resolution) made after the Closing Date shall exceed the sum of (1) 50% of the aggregate amount of the Adjusted Consolidated Net Income (or, if the Adjusted Consolidated Net Income is a loss, minus 100% of the amount of such loss) (determined by excluding income resulting from transfers of assets by the Company or a Restricted Subsidiary to an Unrestricted Subsidiary) accrued on a cumulative basis during the period (taken as one accounting period) beginning on the first day of the fiscal quarter immediately following the Closing Date and ending on the last day of the last fiscal quarter preceding the Transaction Date for which reports have been filed with the Commission or provided to the Trustee pursuant to Section 4.18 plus (2) the aggregate Net Cash Proceeds received by the Company after the Closing Date from the issuance and sale permitted by this Indenture of its Capital Stock (other than Disqualified Stock) to a Person who is not a Subsidiary of the Company, including an issuance or sale permitted by this Indenture of Indebtedness of the Company for cash subsequent to the Closing Date upon the conversion of such Indebtedness into Capital Stock (other than Disqualified Stock) of the Company, or from the issuance to a Person who is not a Subsidiary of the Company of any options, warrants or other rights to acquire Capital Stock of the Company (in each case, exclusive of any Disqualified Stock or any options, warrants or other rights that are redeemable at the option of the holder, or are required to be redeemed, prior to the Stated Maturity of the Notes) plus (3) an amount equal to the net reduction in Investments (other than reductions in Permitted Investments) in any Person (resulting from payments of interest on Indebtedness, dividends, repayments of loans or advances, or other transfers of assets, in each case to the Company or any Restricted Subsidiary or from the Net Cash Proceeds from the sale of any such dividendInvestment (except, distributionin each case, purchase, repurchase, redemption, defeasance, other acquisition to the extent any such payment or retirement or Investment being herein referred to as a “Restricted Payment”proceeds are included in the calculation of Adjusted Consolidated Net Income), if at or EXHIBIT 4.17 from redesignations of Unrestricted Subsidiaries as Restricted Subsidiaries (valued in each case as provided in the time definition of "Investments"), not to exceed, in each case, the Borrower amount of Investments previously made by the Company or such any Restricted Subsidiary makes in such Restricted Payment after giving effect theretoPerson or Unrestricted Subsidiary plus (4) $10Emillion. The foregoing provision shall not be violated by reason of:

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

Limitation on Restricted Payments. (a) The Company Borrower shall not, and shall not permit any of its Restricted SubsidiarySubsidiaries to, directly or indirectly, to : (i) declare or pay any dividend or make any distribution on account of the Company Borrower’s or in respect any of its Capital Stock (Restricted Subsidiaries’ Equity Interests, including any such payment made in connection with any merger or consolidation to which involving the Company Borrower is a party) except (x) dividends other than dividends, payments or distributions (A) payable solely in its Capital Stock Equity Interests (other than Disqualified Stock) and (y) dividends of the Company Borrower or distributions payable to the Company Borrower and its Restricted Subsidiaries; or any (B) by a Restricted Subsidiary (andso long as, in the case of any such dividend or distribution payable on or in respect of any class or series of securities issued by a Restricted Subsidiary making such dividend or distribution, to other holders of its Capital Stock on no more than a pro rata basisWholly Owned Restricted Subsidiary, measured by value), (ii) purchase, redeem, retire or otherwise acquire for value any Capital Stock of the Borrower held by Persons other than the Company Borrower or a Restricted Subsidiary receives at least -116- its pro rata share of such dividend or distribution in accordance with its Equity Interests in such class or series of securities); (other than ii) purchase or otherwise acquire or retire for value any acquisition of Capital Stock deemed to occur upon the exercise of options if such Capital Stock represents a portion Equity Interests of the exercise price thereof), Company Borrower or any other direct or indirect parent of the Company Borrower; (iii) voluntarily purchasemake any principal payment on, or redeem, repurchase, redeem, defease or otherwise voluntarily acquire or retire for value, in each case prior to scheduled maturity, any scheduled repayment or scheduled sinking fund paymentmaturity, any Junior Debt Subordinated Indebtedness (other than a purchasethe payment, redemption, repurchase, redemptiondefeasance, defeasance or other acquisition or retirement for value of (A) Subordinated Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case due within one year of the date of such purchasepayment, redemption, repurchase, redemptiondefeasance, defeasance or other acquisition or retirementretirement and (B) Indebtedness permitted under Section 6.1(b)(xi), ); or (iv) make any Investment Restricted Investment; (all such payments and other actions set forth in clauses (i) through (iv) above, other than any of the exceptions thereto, being collectively referred to as “Restricted Payments”), unless, at the time of such Restricted Payment: (1) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof; (2) in the case of Restricted Payments described in Sections 6.2(a)(i), (ii) and (iii) above, immediately after giving effect to such transaction on a pro forma basis, the Company Borrower could Incur $1.00 of additional Indebtedness under Section 6.1(a); and (3) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company Borrower and its Restricted Subsidiaries after the Closing Date (including Restricted Payments permitted by clauses (b)(i), (b)(ii) (with respect to the payment of dividends on Refunding Capital Stock pursuant to clause (B) thereof only), (b)(vi)(C) and (b)(xvi) of this Section 6.2, but excluding all other Restricted Payments permitted by clause (b) of this Section 6.2), is less than the sum of, without duplication, (A) 50% of the Consolidated Net Income of the Company Borrower for the period (taken as one accounting period) from June 30, 2014 to the end of the Company Borrower’s most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, in the case such Consolidated Net Income for such period is a deficit, minus 100% of such deficit), plus (B) 100% of the aggregate net proceeds, including cash and the Fair Market Value of assets other than cash, received by the Company Borrower after the Closing Date from the issue or sale of Equity Interests of the Company Borrower or any direct or indirect parent of the Company Borrower (excluding (without duplication) Refunding Capital Stock (as defined below), Designated Preferred Stock, Cash Contribution Amount, Excluded Contributions and Disqualified Stock), including Equity Interests issued upon conversion of Indebtedness or upon exercise of warrants or options (other than an issuance or -117- sale to a Permitted InvestmentRestricted Subsidiary of the Company Borrower or an employee stock ownership plan or trust established by the Company Borrower or any of its Subsidiaries), plus (C) 100% of the aggregate amount of contributions to the capital of the Company Borrower received in cash and the Fair Market Value of property other than cash after the Closing Date (other than Excluded Contributions, Refunding Capital Stock, Designated Preferred Stock and Disqualified Stock and the Cash Contribution Amount), plus (D) the principal amount of any Indebtedness, or the liquidation preference or maximum fixed repurchase price, as the case may be, of any Disqualified Stock, of the Company Borrower or any Restricted Subsidiary thereof issued after the Closing Date (other than Indebtedness or Disqualified Stock issued to the Company Borrower or an employee stock ownership plan or trust established by the Company Borrower or any Restricted Subsidiary (other than to the extent such employee stock ownership plan or trust has been funded by the Company Borrower or any Restricted Subsidiary) that has been converted into or exchanged for Equity Interests in the Company Borrower or any direct or indirect parent of the Company Borrower (other than Disqualified Stock), plus (E) 100% of the aggregate amount received by the Company Borrower or any Restricted Subsidiary in cash and the Fair Market Value marketable securities or other of property other than cash received by the Company Borrower or any Restricted Subsidiary from: (I) the sale or other disposition (other than to the Company Borrower or a Restricted Subsidiary) of Restricted Investments made by the Company Borrower and its Restricted Subsidiaries and from repurchases and redemptions of such Restricted Investments from the Company Borrower and its Restricted Subsidiaries by any Person (other than the Company Borrower or any of its Subsidiaries) and from repayments of loans or advances which constituted Restricted Investments (other than in each case to the extent that the Restricted Investment was made pursuant to clauses (b)(vii) or (b)(x) of this Section 6.2), (II) the sale (other than to the Company Borrower or a Restricted Subsidiary of the Company Borrower) of the Capital Stock of an Unrestricted Subsidiary, or (III) any distribution or dividend from an Unrestricted Subsidiary (to the extent such dividend, distribution, purchase, repurchase, redemption, defeasance, other acquisition distribution or retirement or Investment being herein referred to dividend is not already included in the calculation of Consolidated Net Income); plus (F) in the event any Unrestricted Subsidiary of the Company Borrower has been redesignated as a “Restricted Payment”)Subsidiary or has been merged or consolidated with or into, if at or transfers or conveys its assets to, or is liquidated into, the time the Company Borrower or such a Restricted Subsidiary makes such Restricted Payment of the Company Borrower, in each case after giving effect thereto:the Closing Date, the Fair Market Value (as determined in -118-

Limitation on Restricted Payments. (a) The Borrower shall Company will not, and shall will not permit any Restricted SubsidiarySubsidiary to, directly or indirectly, to (i) declare or pay any dividend or make any distribution on or in with respect of to its Capital Stock (including any such payment in connection with any merger or consolidation to which the Borrower is a party) except other than (x) dividends or distributions payable solely in shares of its Capital Stock (other than Disqualified Stock) or in options, warrants or other rights to acquire shares of such Capital Stock and (y) pro rata dividends or distributions payable to on Common Stock of Restricted Subsidiaries held by minority stockholders, provided that such dividends do not in the Borrower aggregate exceed the minority stockholders' pro rata share of such Restricted Subsidiaries' net income from the first day of the fiscal quarter beginning immediately following the Closing Date) held by Persons other than the Company or any Restricted Subsidiary (and, in the case of any such Restricted Subsidiary making such dividend or distribution, to other holders of its Capital Stock on no more than a pro rata basis, measured by value)Restricted Subsidiaries, (ii) purchase, redeem, retire or otherwise acquire for value any shares of Capital Stock of (A) the Company or an Unrestricted Subsidiary (including options, warrants or other rights to acquire such shares of Capital Stock) held by any Person or (B) a Restricted Subsidiary (including options, warrants or other rights to acquire such shares of Capital Stock) held by any Affiliate of the Company (other than a Wholly Owned Restricted Subsidiary) or any holder (or any Affiliate of such holder) of 5% or more of the Capital Stock of the Borrower held by Persons Company, (iii) make any voluntary or optional principal payment, or voluntary or optional redemption, repurchase, defeasance, or other acquisition or retirement for value, of Indebtedness of the Company that is subordinated in right of payment to the Notes or (iv) make any Investment, other than a Permitted Investment, in any Person (such payments or any other actions described in clauses (i) through (iv) being collectively "Restricted Payments") if, at the Borrower time of, and after giving effect to, the proposed Restricted Payment: (A) a Default or Event of Default shall have occurred and be continuing, (B) except with respect to an Investment, the Company could not Incur at least $1.00 of Indebtedness under the first paragraph of Section 4.03(a) or (C) the aggregate amount of all Restricted Payments (the amount, if other than in cash, to be determined in good faith by the Board of Directors, whose determination shall be conclusive and evidenced by a Board Resolution) made after the Closing Date shall exceed the sum of (1) 50% of the aggregate amount of the Adjusted Consolidated Net Income (or, if the Adjusted Consolidated Net Income is a loss, minus 100% of the amount of such loss) (determined by excluding income resulting from transfers of assets by the Company or a Restricted Subsidiary to an Unrestricted Subsidiary) accrued on a cumulative basis during the period (taken as one accounting period) beginning on the first day of the fiscal quarter immediately following the Closing Date and ending on the last day of the last fiscal quarter preceding the Transaction Date for which reports have been filed pursuant to Section 4.17 plus (2) the aggregate Net Cash Proceeds received by the Company after the Closing Date from the issuance and sale permitted by this Indenture of its Capital Stock (other than Disqualified Stock) to a Person who is not a Subsidiary of the Company (except to the extent such Net Cash Proceeds are used to Incur Indebtedness pursuant to clause (viii) under Section 4.03) or from the issuance to a Person who is not a Subsidiary of the Company of any acquisition of options, warrants or other rights to acquire Capital Stock deemed to occur upon the exercise of options if such Capital Stock represents a portion of the exercise price thereof)Company (in each case, (iii) voluntarily purchaseexclusive of any Disqualified Stock or any options, repurchasewarrants or other rights that are redeemable at the option of the holder, redeem, defease or otherwise voluntarily acquire or retire for valueare required to be redeemed, prior to scheduled maturity, scheduled repayment or scheduled sinking fund payment, any Junior Debt the Stated Maturity of the Notes) plus (3) an amount equal to the net reduction in Investments (other than a purchasereductions in Permitted Investments) in any Person resulting from payments of interest on Indebtedness, dividends, repayments of loans or advances, or other transfers of assets, in each case to the Company or any Restricted Subsidiary or from the Net Cash Proceeds from the sale of any such Investment (except, in each case, to the extent any such payment or proceeds are included in the calculation of Adjusted Consolidated Net Income), or from redesignations of Unrestricted Subsidiaries as Restricted Subsidiaries (valued in each case as provided in the definition of "Investments"), not to exceed, in each case, the amount of Investments previously made by the Company or any Restricted Subsidiary in such Person or Unrestricted Subsidiary. The foregoing provision shall not be violated by reason of: (i) the payment of any dividend within 60 days after the date of declaration thereof if, at said date of declaration, such payment would comply with the foregoing paragraph; (ii) the redemption, repurchase, redemption, defeasance or other acquisition or retirement for value of Indebtedness that is subordinated in anticipation right of satisfying a sinking fund obligation, principal installment or final maturity, in each case due within one year of the date of such purchase, repurchase, redemption, defeasance or other acquisition or retirement), or (iv) make any Investment (other than a Permitted Investment) in any Person (any such dividend, distribution, purchase, repurchase, redemption, defeasance, other acquisition or retirement or Investment being herein referred payment to as a “Restricted Payment”), if at the time the Borrower or such Restricted Subsidiary makes such Restricted Payment after giving effect thereto:the

Limitation on Restricted Payments. (a) The Borrower Company shall not, and shall not permit any Restricted SubsidiarySubsidiary to, directly or indirectly, to : (i) declare or pay any dividend or make any distribution on or in with respect of to its Capital Stock (including any such payment in connection with any merger or consolidation to which the Borrower is a party) except other than (x) dividends or distributions payable solely in shares of its Capital Stock (other than Disqualified Stock) or in options, warrants or other rights to acquire shares of such Capital Stock and (y) pro rata dividends or distributions payable to on Common Stock of Restricted Subsidiaries held by minority stockholders) held by Persons other than the Borrower Company or any Restricted Subsidiary (and, in the case of any such Restricted Subsidiary making such dividend or distribution, to other holders of its Capital Stock on no more than a pro rata basis, measured by value)Restricted Subsidiaries, (ii) purchase, redeem, retire or otherwise acquire for value any shares of Capital Stock of (A) the Company or an Unrestricted Subsidiary (including options, warrants or other rights to acquire such shares of Capital Stock) held by any Person or (B) a Restricted Subsidiary (including options, warrants or other rights to acquire such shares of Capital Stock) held by any Affiliate of the Company (other than a Wholly Owned Restricted Subsidiary) or any holder (or any Affiliate of such holder) of 5% or more of the Capital Stock of the Borrower held by Persons other than the Borrower or a Restricted Subsidiary (other than any acquisition of Capital Stock deemed to occur upon the exercise of options if such Capital Stock represents a portion of the exercise price thereof)Company, (iii) voluntarily purchasemake any voluntary or optional principal payment, or voluntary or optional redemption, repurchase, redeemdefeasance, defease or otherwise voluntarily acquire or retire for value, prior to scheduled maturity, scheduled repayment or scheduled sinking fund payment, any Junior Debt (other than a purchase, repurchase, redemption, defeasance or other acquisition or retirement for value in anticipation value, of satisfying a sinking fund obligation, principal installment or final maturity, in each case due within one year Indebtedness of the date Company that is subordinated in right of such purchase, repurchase, redemption, defeasance or other acquisition or retirement), payment to the Notes or (iv) make any Investment (Investment, other than a Permitted Investment, in any Person (such payments or any other actions described in clauses (i) through (iv) above being collectively "Restricted Payments") if, at the time of, and after giving effect to, the proposed Restricted Payment: (A) a Default or Event of Default shall have occurred and be continuing, (B) the Company could not Incur at least $1.00 of Indebtedness under the first paragraph of Section 4.03(a) or (C) the aggregate amount of all Restricted Payments (the amount, if other than in cash, to be determined in good faith by the Board of Directors, whose determination shall be conclusive and evidenced by a Board Resolution) made after the Closing Date shall exceed the sum of: (1) 50% of the aggregate amount of the Adjusted Consolidated Net Income (or, if the Adjusted Consolidated Net Income is a loss, minus 100% of the amount of such loss) (determined by excluding income resulting from transfers of assets by the Company or a Restricted Subsidiary to an Unrestricted Subsidiary) accrued on a cumulative basis during the period (taken as one accounting period) beginning on the first day of the fiscal quarter immediately following the Closing Date and ending on the last day of the last fiscal quarter preceding the Transaction Date for which reports have been filed with the Commission, plus (2) the aggregate Net Cash Proceeds received by the Company after the Closing Date from the issuance and sale permitted by this Indenture of its Capital Stock (other than Disqualified Stock) to a Person who is not a Subsidiary of the Company, including an issuance or sale permitted by this Indenture of Indebtedness of the Company for cash subsequent to the Closing Date upon the conversion of such Indebtedness into Capital Stock (other than Disqualified Stock) of the Company, or from the issuance to a Person who is not a Subsidiary of the Company of any options, warrants or other rights to acquire Capital Stock of the Company (in each case, exclusive of any Disqualified Stock or any options, warrants or other rights that are redeemable at the option of the holder, or are required to be redeemed, prior to the Stated Maturity of the Notes), in each case except to the extent such Net Cash Proceeds are used to Incur Indebtedness pursuant to clause (vii) of the second paragraph under Section 4.03(a), plus (3) an amount equal to the net reduction in Investments (other than reductions in Permitted Investments) in any Person (resulting from payments of interest on Indebtedness, dividends, repayments of loans or advances, or other transfers of assets, in each case to the Company or any Restricted Subsidiary or from the Net Cash Proceeds from the sale of any such dividendInvestment (except, distributionin each case, purchase, repurchase, redemption, defeasance, other acquisition to the extent any such payment or retirement or Investment being herein referred to as a “Restricted Payment”proceeds are included in the calculation of Adjusted Consolidated Net Income), if at or from redesignations of Unrestricted Subsidiaries as Restricted Subsidiaries (valued in each case as provided in the time definition of "Investments"), not to exceed, in each case, the Borrower amount of Investments previously made by the Company or such any Restricted Subsidiary makes in such Restricted Payment after giving effect theretoPerson or Unrestricted Subsidiary. The foregoing provision shall not be violated by reason of:

Limitation on Restricted Payments. (a) The Borrower shall not, Holding will not and shall will not permit any Restricted SubsidiarySubsidiary of Holding to, directly or indirectly, to (i) declare or pay any dividend or make any distribution on or in respect of, or make any distribution to the holders of, Equity Interests of its Capital Stock Holding (including any such payment in connection with any merger or consolidation to which the Borrower is a party) except (x) dividends or distributions payable solely in its Capital Stock (Non-Convertible Equity Interests or in options, warrants or other than Disqualified Stock) rights to acquire its Non-Convertible Equity Interests and (y) except dividends or distributions payable to the Borrower Company or any Restricted Subsidiary (and, in the case of any such Restricted Subsidiary making such dividend or distribution, to other holders of its Capital Stock on no more than a pro rata basis, measured by valueWholly-Owned Guarantor Subsidiary), (ii) purchase, redeem, retire redeem or otherwise acquire or retire for value any Capital Stock Equity Interests of the Borrower held by Persons other than the Borrower or a Restricted Subsidiary (other than any acquisition of Capital Stock deemed to occur upon the exercise of options if such Capital Stock represents a portion of the exercise price thereof)Holding, (iii) voluntarily declare or pay any dividend or make any distribution on or in respect of, or make any distribution to holders of, Equity Interests of any Subsidiary of Holding (other than with respect to any such Equity Interests held by Holding or a Wholly-Owned Guarantor Subsidiary), (iv) purchase, repurchase, redeem, defease or otherwise voluntarily acquire or retire for value, prior to scheduled maturity, scheduled repayment or scheduled sinking fund payment, any Junior Debt Subordinated Obligations (other than a the purchase, repurchase, redemption, defeasance repurchase or other acquisition or retirement for value of Subordinated Obligations purchased in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case due within one year of the date of such purchase, repurchase, redemption, defeasance or other acquisition or retirementacquisition), or (ivv) make any Investment (other than a Permitted Investment) in any Person Investments (any such dividend, distribution, purchase, redemption, repurchase, redemption, defeasance, other acquisition or acquisition, retirement or Investment being herein referred is called a "RESTRICTED PAYMENT") unless upon giving effect to as a “such Restricted Payment”), if at the time the Borrower or such Restricted Subsidiary makes such Restricted Payment after giving effect thereto:

Limitation on Restricted Payments. (a) The Borrower shall Guarantor will not, and shall will not permit any Restricted SubsidiarySubsidiary to, directly or indirectly, to (i) declare or pay any dividend or make any distribution on or in with respect of to its Capital Stock held by Persons other than the Guarantor or any Restricted Subsidiary (including any such payment in connection with any merger or consolidation to which the Borrower is a party) except other than (x) dividends or distributions payable solely in shares of its or such Restricted Subsidiary's Capital Stock (other than Disqualified Stock) or in options, warrants or other rights to acquire shares of such Capital Stock and (y) pro rata dividends or distributions payable on Common Stock of Restricted Subsidiaries; provided that such payments made to Persons other than the Borrower Guarantor or any a Restricted Subsidiary shall be included in calculating whether the conditions of clause (and, in the case C) of any such Restricted Subsidiary making such dividend or distribution, to other holders this first paragraph of its Capital Stock on no more than a pro rata basis, measured by valueSubsection 11(b)(2) have been met), (ii) purchase, redeem, retire or otherwise acquire for value any shares of Capital Stock of the Borrower Guarantor (including options, warrants or other rights to acquire such shares of Capital Stock) held by Persons other than the Borrower Guarantor or any of its Wholly-Owned Restricted Subsidiaries, (iii) make any voluntary or optional principal payment, or voluntary or optional redemption, repurchase, defeasance, or other acquisition or retirement for value, of Indebtedness of the Guarantor that is subordinated in right of payment to the Securities or (iv) make any Guarantor Investment, other than a Permitted Guarantor Investment, in any Person (such payments or any other actions described in clauses (i) through (iv) above being collectively "RESTRICTED PAYMENTS") if, at the time of, and after giving effect to, the proposed Restricted Payment: (A) a Default or Event of Default shall have occurred and be continuing, (B) the Guarantor could not Incur at least $1.00 of Indebtedness under the first paragraph of Subsection 11(b)(1) or (C) the aggregate amount of all Restricted Payments (the amount, if other than in cash, to be determined in good faith by the Board of Directors, whose determination shall be evidenced by a Board Resolution) made after the Closing Date shall exceed the sum of (1) 50% of the aggregate amount of the Adjusted Consolidated Net Income (or, if the Adjusted Consolidated Net Income is a loss, minus 100% of the amount of such loss) (determined by excluding income resulting from transfers of assets by the Guarantor or a Restricted Subsidiary to an Unrestricted Subsidiary) accrued on a cumulative basis during the period (taken as one accounting period) beginning on the first day of the fiscal quarter commencing after the Closing Date and ending on the last day of the last fiscal quarter preceding the Transaction Date for which reports have been sent to the Administrative Agent pursuant to Section 8.1(a)(2) of the Financing Agreement plus (2) the aggregate Net Cash Proceeds received by the Guarantor after the Closing Date as a capital contribution or from the issuance and sale of its Capital Stock (other than any acquisition Disqualified Stock) to a Person who is not a Subsidiary of the Guarantor, including an issuance or sale permitted by this Guarantee of Indebtedness of the Guarantor for cash subsequent to the Closing Date upon the conversion of such Indebtedness into Capital Stock deemed (other than Disqualified Stock) of the Guarantor, or from the issuance to occur upon a Person who is not a Subsidiary of the exercise Guarantor of options if such any options, warrants or other rights to acquire Capital Stock represents a portion of the exercise price thereof)Guarantor (in each case, (iii) voluntarily purchaseexclusive of any convertible indebtedness, repurchaseDisqualified Stock or any options, redeemwarrants or other rights that are redeemable at the option of the holder, defease or otherwise voluntarily acquire or retire for valueare required to be redeemed, prior to scheduled maturitythe Maturity Date), scheduled repayment in each case except to the extent such Net Cash Proceeds are used to Incur Indebtedness pursuant to clause (viii) of the second paragraph under Subsection 11(b)(1), plus (3) an amount equal to the net reduction in Guarantor Investments made pursuant to this first paragraph of this Subsection 11(b)(2) in any Person resulting from payments of interest on Indebtedness, dividends, repayments of loans or scheduled sinking fund paymentadvances, or other transfers of assets, in each case to the Guarantor or any Junior Debt Restricted Subsidiary or from the Net Cash Proceeds from the sale of any such Guarantor Investment (other than a purchaseexcept, in each case, to the extent any such payment or proceeds are included in the calculation of Adjusted Consolidated Net Income), or from redesignations of Unrestricted Subsidiaries as Restricted Subsidiaries (valued in each case as provided in the definition of "GUARANTOR INVESTMENTS"), not to exceed, in each case, the amount of Guarantor Investments previously made and treated as Restricted Payments by the Guarantor or any Restricted Subsidiary in such Person or Unrestricted Subsidiary. The foregoing provision shall not be violated by reason of: (i) the payment of any dividend within 60 days after the date of declaration thereof if, at said date of declaration, such payment would comply with the foregoing paragraph; (ii) the redemption, repurchase, redemption, defeasance or other acquisition or retirement for value of Indebtedness that is subordinated in anticipation right of satisfying a sinking fund obligationpayment to the Securities including premium, principal installment if any, and accrued and unpaid interest, with the proceeds of, or final maturityin exchange for, in each case due within one year Indebtedness Incurred under clause (iii) of the date second paragraph of part (a) of Subsection 11(b)(1); (iii) the repurchase, redemption or other acquisition of Capital Stock of the Guarantor or any Restricted Subsidiary (or options, warrants or other rights to acquire such purchaseCapital Stock) in exchange for, or out of the Net Cash Proceeds of a capital contribution or a substantially concurrent offering of, shares of Capital Stock (other than Disqualified Stock) of the Guarantor (or options, warrants or other rights to acquire such Capital Stock); provided, however, that the Net Cash proceeds from such sale or such capital contribution (to the extent so used for such Restricted Payment) shall be excluded from the calculation of the amounts under clause (2) of the previous paragraph; (iv) the making of any principal payment or the repurchase, redemption, retirement, defeasance or other acquisition for value of Indebtedness of the Guarantor that is subordinated in right of payment to the Term Loans in exchange for, or retirementout of the Net Cash Proceeds of a capital contribution or a substantially concurrent offering of, shares of the Capital Stock (other than Disqualified Stock) of the Guarantor (or options, warrants or other rights to acquire such Capital Stock); provided, however, that the Net Cash Proceeds from such sale or such capital contribution (to the extent so used for such Restricted Payment) shall be excluded from the calculation of the amounts under clause (2) of the previous paragraph; (v) payments or distributions, to dissenting stockholders pursuant to Applicable Law, pursuant to or in connection with a consolidation, merger or transfer of assets that complies with Article Five of either of the Indentures; (vi) Guarantor Investments in Unrestrict5ed Subsidiaries not to exceed, at any one time outstanding, $5 million; or (vii) Guarantor Investments acquired in exchange for Capital Stock (other than Disqualified Stock) of the Guarantor or with the Net Cash Proceeds of such Capital Stock; provided that such proceeds are so applied within 90 days of receipt thereof; provided that the Net Cash Proceeds from such sale or such capital contribution (to the extent so used for such Restricted Payments) shall be excluded from the calculation of the amounts under clause (2) of the previous paragraph; (viii) the payment of cash to (A) the holders of warrants issued pursuant to the Plan upon exercise of such warrants and (B) the holders of Securities upon conversion of the Securities in lieu of fractional shares of the Guarantor's Common Stock and (ix) other Restricted Payments in an aggregate amount not to exceed $10 million; provided that, except in the case of clause (i), no Default or Event of Default shall have occurred and be continuing or occur as a consequence of the actions or payments set forth therein. The value of any Restricted Payment made other than in cash shall be the fair market value thereof. The amount of any Guarantor Investment "outstanding" at any time shall be deemed to be equal to the amount of such Guarantor Investment on the date made, less the return of capital to the Guarantor and its Restricted Subsidiaries with respect to such Guarantor Investment (up to the amount of such Guarantor Investment). Each Restricted Payment permitted pursuant to the preceding paragraph (other than the Restricted Payment referred to in clause (ii) thereof, an exchange of Capital Stock for Capital Stock or Indebtedness referred to in clause (iv) make thereof and an Guarantor Investment referred to in Clause (vi) thereof), and the Net Cash Proceeds from any Investment capital contribution or any issuance of Capital Stock referred to in clauses (other than a Permitted Investmentiv) and (vii), shall be included in calculating whether the conditions of clause (C) of the first paragraph of this Subsection 11(b)(2) have been met with respect to any Person (any such dividendsubsequent Restricted Payments. If the proceeds of an issuance of Capital Stock of the Guarantor are used for the prepayment of the Term Loans, distribution, purchase, repurchase, the redemption, defeasance, repurchase or other acquisition of the Securities, or retirement Indebtedness that is pari passu with the Securities, then the Net Cash Proceeds of such issuance shall be included in clause (C) of the first paragraph of this Subsection 11(b)(2) only to the extent such proceeds are not used for such redemption, repurchase or Investment being herein referred to as a “Restricted Payment”other acquisition of Indebtedness. For purposes of determining compliance with this Subsection 11(b)(2), if at in the time event that a Restricted Payment meets the Borrower or such criteria of more than one of the types of Restricted Subsidiary makes Payments described in clauses (i) through (x) of the preceding paragraph, the Guarantor, in its sole discretion, shall classify such Restricted Payment after giving effect thereto:and only be required to include the amount and type of such Restricted Payment in one of such clauses.

Limitation on Restricted Payments. (a) The Borrower shall not, and shall not permit any Restricted SubsidiarySubsidiary to, directly or indirectly, to indirectly (iw) declare or pay any dividend or make any distribution on account of the Borrower's or in respect of its Capital Stock (any Restricted Subsidiary's Equity Interests, including any such payment dividend or distribution payable in connection with any merger or consolidation to which the Borrower is a party) except consolidation, other than (xA) dividends or distributions by the Borrower payable solely in its Capital Stock Equity Interests (other than Disqualified Stock) and of the Borrower or (yB) dividends or distributions by a Restricted Subsidiary so long as, in the case of any dividend or distribution payable on or in respect of any class or series of securities issued by a Restricted Subsidiary other than a Wholly-Owned Subsidiary, the Borrower or a Restricted Subsidiary receives at least its pro rata share of such dividend or distribution in accordance with its Equity Interests in such class or series of securities, (x) purchase, redeem, defease or otherwise acquire or retire for value any Equity Interests of the Borrower or any direct or indirect parent of the Borrower, including in connection with any merger or consolidation, (y) make any principal payment on, or redeem, repurchase, defease or otherwise acquire or retire for value in each case, prior to any scheduled repayment, sinking fund payment or maturity, any Subordinated Indebtedness other than (A) Indebtedness permitted under clauses (ix), (x) and (xxiv) of Section 6.01(b) or (B) the purchase, repurchase or other acquisition of Subordinated Indebtedness of the Borrower or any Restricted Subsidiary (and, in the case of any such Restricted Subsidiary making such dividend or distribution, to other holders of its Capital Stock on no more than a pro rata basis, measured by value), (ii) purchase, redeem, retire or otherwise acquire for value any Capital Stock of the Borrower held by Persons other than the Borrower or a Restricted Subsidiary (other than any acquisition of Capital Stock deemed to occur upon the exercise of options if such Capital Stock represents a portion of the exercise price thereof), (iii) voluntarily purchase, repurchase, redeem, defease or otherwise voluntarily acquire or retire for value, prior to scheduled maturity, scheduled repayment or scheduled sinking fund payment, any Junior Debt (other than a purchase, repurchase, redemption, defeasance or other acquisition or retirement for value purchased in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case due within one year of the date of such purchase, repurchase, redemption, defeasance repurchase or other acquisition or retirement), or (ivz) make any Restricted Investment (all such payments and other than a Permitted Investmentactions set forth in clauses (w) in any Person through (any such dividend, distribution, purchase, repurchase, redemption, defeasance, other acquisition or retirement or Investment z) above being herein collectively referred to as a “Restricted PaymentPayments”), if unless, at the time the Borrower or of such Restricted Subsidiary makes such Restricted Payment after giving effect theretoPayment:

Limitation on Restricted Payments. (a) The Borrower shall Company will not, and shall will not permit any Restricted SubsidiarySubsidiary to, directly or indirectly, to (i) declare or pay any dividend or make any distribution on or in with respect of to its Capital Stock (including any such payment in connection with any merger or consolidation to which the Borrower is a party) except other than (x) dividends or distributions payable solely in shares of its Capital Stock (other than Disqualified Stock) or in options, warrants or other rights to acquire shares of such Capital Stock and (y) pro rata dividends or distributions payable to on Common Stock of Restricted Subsidiaries held by minority stockholders) held by Persons other than the Borrower Company or any Restricted Subsidiary (and, in the case of any such Restricted Subsidiary making such dividend or distribution, to other holders of its Capital Stock on no more than a pro rata basis, measured by value)Restricted Subsidiaries, (ii) purchase, redeem, retire or otherwise acquire for value any shares of Capital Stock of (x) the Company or an Unrestricted Subsidiary (including options, warrants or other rights to acquire such shares of Capital Stock) held by any Person other than the Company or any Wholly Owned Restricted Subsidiary or (y) a Restricted Subsidiary (including options, warrants or other rights to acquire such shares of Capital Stock) held by any Affiliate of the Company (other than a Wholly Owned Restricted Subsidiary) or any holder (or any Affiliate of such holder) of 5% or more of the Capital Stock of the Borrower held by Persons other than the Borrower or a Restricted Subsidiary (other than any acquisition of Capital Stock deemed to occur upon the exercise of options if such Capital Stock represents a portion of the exercise price thereof)Company, (iii) voluntarily purchasemake any voluntary or optional principal payment, or voluntary or optional redemption, repurchase, redeemdefeasance, defease or otherwise voluntarily acquire or retire for value, prior to scheduled maturity, scheduled repayment or scheduled sinking fund payment, any Junior Debt (other than a purchase, repurchase, redemption, defeasance or other acquisition or retirement for value value, of Indebtedness of the Company that is subordinated in right of payment to the Notes (other than the purchase, repurchase or the acquisition of Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each any case due within one year of the date of such purchase, repurchase, redemption, defeasance or other acquisition or retirement), acquisition) or (iv) make any Investment (Investment, other than a Permitted Investment, in any Person (such payments or any other actions described in clauses (i) through (iv) above being collectively "Restricted Payments") if, at the time of, and after giving effect to, the proposed Restricted Payment: (A) a Default or Event of Default shall have occurred and be continuing, (B) except with respect to Investments, the Company could not Incur at least $1.00 of Indebtedness under the first paragraph of Section 4.03 or (C) the aggregate amount of all Restricted Payments (the amount, if other than in cash, to be determined in good faith by the Board of Directors, whose determination shall be conclusive and evidenced by a Board Resolution) made after the Closing Date shall exceed the sum of (1) 50% of the aggregate amount of the Adjusted Consolidated Net Income (or, if the Adjusted Consolidated Net Income is a loss, minus 100% of the amount of such loss (determined by excluding amounts referred to in clause (3) below)) accrued on a cumulative basis during the period (taken as one accounting period) beginning on the first day of the fiscal quarter immediately following the Closing Date and ending on the last day of the last fiscal quarter preceding the Transaction Date for which reports have been filed with the Commission pursuant to Section 4.17 plus (2) (A) the aggregate Net Cash Proceeds received by the Company after the Closing Date as a capital contribution or from the issuance and sale permitted by this Indenture of its Capital Stock (other than Disqualified Stock) to a Person who is not a Subsidiary of the Company, or from the issuance to a Person who is not a Subsidiary of the Company of any options, warrants or other rights to acquire Capital Stock of the Company (in each case, exclusive of any convertible Indebtedness, Disqualified Stock or any options, warrants or other rights that are redeemable at the option of the holder, or are required to be redeemed, prior to the Stated Maturity of the Notes), (B) the aggregate Net Cash Proceeds received after the Closing Date by the Company from the issuance or sale (other than to a Subsidiary of the Company) of debt securities or shares of Disqualified Stock that have been converted into or exchanged for Common Stock of the Company, together with the aggregate cash received by the Company at the time of such conversion or exchange, in each case except to the extent such Net Cash Proceeds are used to Incur Indebtedness pursuant to clause (viii) of the second paragraph of part (a) of Section 4.03 and (C) the amount by which Indebtedness of the Company and its Restricted Subsidiaries is reduced upon the conversion or exchange subsequent to the Closing Date of any Indebtedness which is convertible into or exchangeable for Capital Stock (other than Disqualified Stock) of the Company plus (3) an amount equal to the net reduction in Investments (other than reductions in Permitted Investments) in any Person (resulting from payments of interest on Indebtedness, dividends, repayments of loans or advances, or other transfers of assets, in each case to the Company or any Restricted Subsidiary or from the Net Cash Proceeds from the sale of any such dividendInvestment (except, distributionin each case, purchase, repurchase, redemption, defeasance, other acquisition to the extent any such payment or retirement or Investment being herein referred to as a “Restricted Payment”proceeds are included in the calculation of Adjusted Consolidated Net Income), if at or from redesignations of Unrestricted Subsidiaries as Restricted Subsidiaries (valued in each case as provided in the time definition of "Investments"), not to exceed, in each case, the Borrower amount of Investments previously made by the Company or such any Restricted Subsidiary makes in such Restricted Payment after giving effect theretoPerson or Unrestricted Subsidiary. The foregoing provision shall not be violated by reason of:

Limitation on Restricted Payments. (a) The Borrower Company shall not, and shall not permit any Restricted Subsidiary, directly or indirectly, to (i) declare or pay any dividend or make any distribution on or in with respect of to its Capital Stock (including any such payment to its stockholders in connection with any merger or consolidation to which involving the Borrower is a partyCompany) except (xA) dividends or distributions payable solely in its Capital Stock (other than Disqualified Stock) and (yB) dividends or distributions payable to the Borrower Company or any Restricted Subsidiary (and, in the case of any if such Restricted Subsidiary making such dividend or distributionis not a Wholly Owned Subsidiary, to its other holders of its Capital Stock shareholders on no more than a pro rata basis, measured by value), (ii) purchase, redeem, retire or otherwise acquire for value any Capital Stock of the Borrower Company or any Restricted Subsidiary held by Persons other than the Borrower Company or a another Restricted Subsidiary (other than any acquisition of Capital Stock deemed to occur upon the exercise of options if such Capital Stock represents a portion of the exercise price thereof)Subsidiary, (iii) voluntarily purchase, repurchase, redeem, defease or otherwise voluntarily acquire or retire for value, prior to scheduled maturity, scheduled repayment or scheduled sinking fund payment, any Junior Debt Subordinated Obligations (other than a the purchase, repurchase, redemption, defeasance redemption or other acquisition or retirement for value of Subordinated Obligations in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case due within one year of the date of such purchase, repurchase, redemption, defeasance or other acquisition or retirement), acquisition) or (iv) make any Investment (other than a Permitted Investment) in any Person (any such dividend, distribution, purchase, redemption, repurchase, redemption, defeasance, other acquisition or acquisition, retirement or Investment being herein referred to as a “"Restricted Payment”), ") if at the time the Borrower Company or such Restricted Subsidiary makes such Restricted Payment: (A) a Default shall have occurred and be continuing (or would result therefrom); (B) the Company could not incur at least an additional $1.00 of Indebtedness under paragraph (a) of the covenant contained in Section 1010; or (C) the aggregate amount of such Restricted Payment after giving effect thereto:and all other Restricted Payments (the amount so expended, if other than in cash, to be determined in good faith by the Company's Board of Directors, whose determination shall be conclusive and evidenced by a resolution of the Company's Board of Directors) declared or made subsequent to the date of this Indenture would exceed the sum of: (1) 50% of the Consolidated Net Income accrued during the period (treated as one accounting period) from the end of the most recent fiscal quarter ending prior to the date of the Existing Indenture to the end of the most recent fiscal quarter ending prior to the date of such Restricted Payment for which consolidated financial statements of the Company are available (or, in case such Consolidated Net Income shall be a deficit, minus 100% of such deficit); (2) the aggregate Net Cash Proceeds received by the Company from the issuance or sale of its Capital Stock (other than Disqualified Stock) subsequent to the date of the Existing Indenture (other than an issuance or sale to a Restricted Subsidiary of the Company); provided that in the event such issuance or sale is to an employee stock ownership plan or other trust established by the Company or any of its Subsidiaries for the benefit of their employees, to the extent the purchase by such plan or trust is financed by Indebtedness of such plan or trust and for which the Company is liable as a guarantor or otherwise, such aggregate amount of Net Cash Proceeds shall be limited to the aggregate amount of principal payments made by such plan or trust with respect to such Indebtedness); and (3) in the case of the disposition or repayment of any Investment constituting a Restricted Payment (without duplication of any amount deducted in calculating the amount of Investments at any time outstanding included in the amount of Restricted Payments), an amount equal to the lesser of (x) the return of capital or similar repayment with respect to such Investment and (y) the initial amount of such Investment, in either case, less the cost of the disposition of such Investment.

Limitation on Restricted Payments. (a) The Borrower shall Company will not, and shall will not permit any Restricted SubsidiarySubsidiary to, directly or indirectly, to (i) declare or pay any dividend or make any distribution on or in with respect of to its Capital Stock (including any such payment in connection with any merger or consolidation to which the Borrower is a party) except other than (x) dividends or distributions payable solely in shares of its Capital Stock (other than Disqualified Stock) or in options, warrants or other rights to acquire shares of such Capital Stock and (y) pro rata dividends or distributions payable to the Borrower on common stock or any other equity interests (other than preferred stock) of Restricted Subsidiary (and, in Subsidiaries held by minority stockholders) held by Persons other than the case of Company or any such Restricted Subsidiary making such dividend or distribution, to other holders of its Capital Stock on no more than a pro rata basis, measured by value)Restricted Subsidiaries, (ii) purchase, redeem, retire or otherwise acquire for value any shares of Capital Stock of (A) the Company or an Unrestricted Subsidiary (including options, warrants or other rights to acquire such shares of Capital Stock) held by any Person or (B) a Restricted Subsidiary (including options, warrants or other rights to acquire such shares of Capital Stock) held by any Affiliate of the Company (other than a Restricted Subsidiary) or any holder (or any Affiliate of such holder) of 5% or more of the Capital Stock of the Borrower held by Persons other than the Borrower or a Restricted Subsidiary (other than any acquisition of Capital Stock deemed to occur upon the exercise of options if such Capital Stock represents a portion of the exercise price thereof)Company, (iii) voluntarily purchasemake any voluntary or optional principal payment, or voluntary or optional redemption, repurchase, redeemdefeasance, defease or otherwise voluntarily acquire or retire for value, prior to scheduled maturity, scheduled repayment or scheduled sinking fund payment, any Junior Debt (other than a purchase, repurchase, redemption, defeasance or other acquisition or retirement for value in anticipation value, of satisfying a sinking fund obligation, principal installment or final maturity, in each case due within one year Indebtedness of the date Company that is subordinated in right of such purchase, repurchase, redemption, defeasance payment to the Parent Guarantee or other acquisition or retirement), of Indebtedness of the Issuer that is subordinated in right of payment to the Notes or (iv) make any Investment (Investment, other than a Permitted Investment) , in any other Person (such payments or any such dividendother actions described in clauses (i) through (iv) above being collectively "RESTRICTED PAYMENTS") if, distribution, purchase, repurchase, redemption, defeasance, other acquisition or retirement or Investment being herein referred to as a “Restricted Payment”), if at the time the Borrower or such Restricted Subsidiary makes such Restricted Payment of, and after giving effect theretoto, the proposed Restricted Payment:

Limitation on Restricted Payments. The Company (ai) The Borrower shall may not, and shall not permit any Restricted Subsidiary, directly or indirectly, to (i) declare or pay any dividend dividend, or make any distribution on or distribution, in respect of its Capital Stock or to the holders thereof (including in their capacity as such), excluding any such payment in connection with any merger or consolidation to which the Borrower is a party) except (x) dividends or distributions payable solely in shares of its Capital Stock (other than Disqualified Stock) or in options, warrants or other rights to acquire its Capital Stock (other than Disqualified Stock); (ii) may not, and (y) dividends or distributions payable to the Borrower or may not permit any Restricted Subsidiary (andto, in the case of any such Restricted Subsidiary making such dividend or distribution, to other holders of its Capital Stock on no more than a pro rata basis, measured by value), (ii) purchase, redeem, or otherwise retire or otherwise acquire for value (a) any Capital Stock of the Borrower held by Persons Company or any Related Person of the Company; or (b) any options, warrants or rights to purchase or acquire shares of Capital Stock of the Company or any Related Person of the Company or any securities convertible or exchangeable into shares of Capital Stock of the Company or any Related Person of the Company; (iii) may not make, or permit any Restricted Subsidiary to make, any Investment in, or payment on a Guarantee of any obligation of, any Person, other than the Borrower Company or a Restricted Subsidiary (other than any acquisition of Capital Stock deemed to occur upon the exercise of options if such Capital Stock represents a portion of the exercise price thereof)Company, except for Permitted Investments; and (iiiiv) voluntarily purchasemay not, and may not permit any Restricted Subsidiary to, redeem, defease, repurchase, redeem, defease retire or otherwise voluntarily acquire or retire for value, prior to any scheduled maturity, scheduled repayment or scheduled sinking fund payment, Debt of the Company which is subordinate in right of payment to the Securities (each of clauses (i) through (iv) being a "Restricted Payment") if: (1) a Default or an Event of Default shall have occurred and is continuing; or (2) upon giving effect to such Restricted Payment, the Company could not Incur at least $1.00 of additional Debt pursuant to the provisions of the first paragraph of Section 1007; or (3) upon giving effect to such Restricted Payment, the aggregate of all Restricted Payments from April 25, 1996 exceeds the sum of: (a) 50% of cumulative Consolidated Net Income (or, in the case Consolidated Net Income shall be negative, less 100% of such deficit) since the end of the last full fiscal quarter prior to April 25, 1996 through the last day of the last full fiscal quarter ending immediately preceding the date of such Restricted Payment; plus (b) $5 million; plus (c) 100% of the net reduction in Investments in any Junior Debt (other than a purchaseUnrestricted Subsidiary resulting from payments of interest on Debt, repurchasedividends, redemptionrepayments of loans or advances, defeasance or other acquisition or retirement for value in anticipation transfers of satisfying a sinking fund obligation, principal installment or final maturityassets, in each case due within one year to the Company or any Restricted Subsidiary of the Company from such Unrestricted Subsidiary (except to the extent that any such payment is included in the calculation of Consolidated Net Income) or from redesignations of Unrestricted Subsidiaries as Restricted Subsidiaries; PROVIDED that the amount included in this clause (c) shall not exceed the amount of Investments previously made by the Company and its Restricted Subsidiaries in such Unrestricted Subsidiary; PROVIDED, FURTHER, that the Company or a Restricted Subsidiary of the Company may make any Restricted Payment with the aggregate net proceeds received after April 25, 1996, including the fair value of property other than cash (determined in good faith by the Board of Directors, as conclusively evidenced by a Board Resolution filed with the Trustee), as capital contributions to the Company or from the issuance (other than to a Restricted Subsidiary) of Capital Stock (other than Disqualified Stock) of the Company and warrants, rights or options on Capital Stock (other than Disqualified Stock) of the Company and the principal amount of Debt of the Company that has been converted into Capital Stock (other than Disqualified Stock and other than by a Restricted Subsidiary) of the Company after April 25, 1996. Notwithstanding the foregoing, the Company may (i) pay any dividend on Capital Stock of any class within 60 days after the declaration thereof if, on the date when the dividend was declared, the Company could have paid such dividend in accordance with the foregoing provisions; (ii) repurchase any shares of its Common Equity or options to acquire its Common Equity from Persons who were formerly officers or employees of the Company, PROVIDED that the aggregate amount of all such repurchases made pursuant to this clause (ii) shall not exceed $2 million, plus the aggregate cash proceeds received by the Company since April 25, 1996 from issuances of its Common Equity or options to acquire its Common Equity to members, officers, managers, directors and employees of the Company or any of its Subsidiaries; (iii) the Company and its Restricted Subsidiaries may refinance any Debt otherwise permitted by clause (iv) of the second paragraph of Section 1007; and (iv) the Company and its Restricted Subsidiaries may retire or repurchase any Capital Stock or Subordinated Debt of the Company in exchange for, or out of the proceeds of the substantially concurrent sale (other than to a Restricted Subsidiary of the Company) of, Capital Stock (other than Disqualified Stock) of the Company. If the Company makes a Restricted Payment which, at the time of the making of such purchaseRestricted Payment, repurchasewould in the good faith determination of the Company be permitted under this Indenture, redemptionsuch Restricted Payment shall be deemed to have been made in compliance with this Indenture notwithstanding any subsequent adjustments made in good faith to the Company financial statements affecting Consolidated Net Income for any period. In determining the aggregate amount expended or available for Restricted Payments in accordance with clause (3) of the first paragraph above, defeasance or other acquisition or retirement), (1) no amounts expended under clauses (iii) or (iv) make any Investment of the immediately preceding paragraph shall be included, (other than a Permitted Investment2) 100% of the amounts expended under clauses (i) and (ii) of the immediately preceding paragraph shall be included, and (3) no amount shall be credited in any Person respect of issuances of Capital Stock in transactions under clause (any such dividend, distribution, purchase, repurchase, redemption, defeasance, other acquisition or retirement or Investment being herein referred to as a “Restricted Payment”), if at iv) of the time the Borrower or such Restricted Subsidiary makes such Restricted Payment after giving effect thereto:immediately preceding paragraph.

Limitation on Restricted Payments. (a) The Borrower Company shall not, and shall not permit any of its Restricted SubsidiarySubsidiaries, directly or indirectly, to (i) declare or pay any dividend or make any distribution on or in respect of its Capital Stock (including any such payment in connection with any merger or consolidation to which involving the Borrower is a partyCompany or any of its Restricted Subsidiaries) except (xA) dividends or distributions payable solely in its Capital Stock (other than Disqualified Stock) or in options, warrants or other rights to purchase such Capital Stock, and (yB) dividends or distributions payable to the Borrower Company or any of its Restricted Subsidiaries by any of its Subsidiaries (and if the Subsidiary (and, in paying the case of any such Restricted Subsidiary making such dividend or distributionmaking the distribution is not a Wholly-Owned Subsidiary, to its other holders of its Capital Stock on no more than a pro rata basis, measured by value), (ii) purchase, redeem, retire or otherwise acquire for value any Capital Stock of the Borrower Company held by Persons other than a Wholly-Owned Subsidiary of the Borrower Company or any Capital Stock of a Restricted Subsidiary of the Company held by any Affiliate of the Company, other than a Wholly-Owned Subsidiary (in either case, other than in exchange for its Capital Stock (other than any acquisition of Capital Stock deemed to occur upon the exercise of options if such Capital Stock represents a portion of the exercise price thereofDisqualified Stock)), (iii) voluntarily purchase, repurchase, redeem, defease or otherwise voluntarily acquire or retire for value, prior to scheduled maturity, scheduled repayment or scheduled sinking fund payment, any Junior Debt Subordinated Obligations (other than a the purchase, repurchase, redemption, defeasance repurchase or other acquisition or retirement for value of Subordinated Obligations purchased in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case due within one year of the date of such purchase, repurchase, redemption, defeasance repurchase or other acquisition or retirement), acquisition) or (iv) make any Investment (other than a Permitted Investment) in any Person (any such dividend, distribution, purchase, redemption, repurchase, redemption, defeasance, other acquisition or acquisition, retirement or Investment as described in preceding clauses (i) through (iv) being herein referred to as a “"Restricted Payment”"), ; if at the time the Borrower Company or such Restricted Subsidiary makes such Restricted Payment after giving effect theretoPayment:

Limitation on Restricted Payments. (a) The Borrower shall So long as any of the Securities are outstanding, Holdings will not, and shall will not permit any Restricted SubsidiarySubsidiary to, directly or indirectly, to (i) declare or pay any dividend or make any distribution on or in respect of its Capital Stock capital stock (including any such payment in connection with any merger or consolidation to which the Borrower is a party) except (x) other than dividends or distributions payable solely in shares of its Capital Stock or such Restricted Subsidiary's capital stock (other than Disqualified Redeemable Stock) and (yof the same class held by such holders or in options, warrants or other rights to acquire such shares of capital stock) dividends held by Persons other than Holdings or distributions payable to the Borrower or any another Restricted Subsidiary (and, in the case of any such Restricted Subsidiary making such dividend or distribution, to other holders of its Capital Stock on no more than a pro rata basis, measured by value)Subsidiary, (ii) purchase, redeem, retire or otherwise acquire for value value, any Capital Stock shares of the Borrower capital stock of Holdings, any Restricted Subsidiary or any Unrestricted Subsidiary (including options, warrants or other rights to acquire such shares of capital stock) held by Persons other than the Borrower Holdings or a another Restricted Subsidiary (other than any acquisition of Capital Stock deemed to occur upon the exercise of options if such Capital Stock represents a portion of the exercise price thereof)Subsidiary, (iii) voluntarily purchasemake any voluntary or optional principal payment, or voluntary or optional redemption, repurchase, redeem, defease or otherwise voluntarily acquire or retire for value, prior to scheduled maturity, scheduled repayment or scheduled sinking fund payment, any Junior Debt (other than a purchase, repurchase, redemption, defeasance or other acquisition or retirement for value value, of Indebtedness of Holdings that is subordinated in anticipation right of satisfying a sinking fund obligation, principal installment or final maturity, in each case due within one year of payment to the date of such purchase, repurchase, redemption, defeasance or other acquisition or retirement), Securities or (iv) make any Investment in any Affiliate (other than Holdings or a Permitted InvestmentRestricted Subsidiary) or Unrestricted Subsidiary (such payments or any other actions described in any Person clauses (any such dividend, distribution, purchase, repurchase, redemption, defeasance, other acquisition or retirement or Investment i) through (iv) being herein referred to as a “collectively "Restricted Payment”), Payments") if at the time the Borrower or such Restricted Subsidiary makes such Restricted Payment of and after giving effect theretoto the proposed Restricted Payment: (A) an Event of Default or event that, after the giving of notice or lapse of time or both, would become an Event of Default shall have occurred and be continuing, (B) Holdings (in the case Holdings or its Restricted Subsidiaries will make the Restricted Payment) could not Incur at least $1.00 of Indebtedness under the first paragraph in Section 4.3(a) of this Indenture or Silgan (in the case Silgan or its Restricted Subsidiaries will make the Restricted Payment) could not Incur at least $1.00 of Indebtedness under clause (i) of Section 4.3(b) of this Indenture or (C) the aggregate amount expended for all Restricted Payments (the amount so expended, if other than in cash, to be determined in good faith by the Board of Directors, whose determination shall be conclusive and evidenced by a Board Resolution) after the date hereof (other than any Restricted Payments described in clauses (ii) and (iii) of the second paragraph of this Section 4.4) shall exceed the sum of (1) 50% of the aggregate amount of Adjusted Consolidated Net Income (or, if Adjusted Consolidated Net Income is a loss, minus 100% of such amount) of Holdings (determined by excluding income resulting from the transfers of assets received by Holdings or a Restricted Subsidiary from an Unrestricted Subsidiary) accrued on a cumulative basis during the period (taken as one accounting period) beginning on the first day of the month immediately following the date hereof and ending on the last day of the last fiscal quarter preceding the Transaction Date plus (2) the aggregate net proceeds received by Holdings from the issuance and sale of capital stock of Holdings (other than Redeemable Stock) to any Person other than a Subsidiary of Holdings, including an issuance or sale permitted by the Indenture for cash or other property upon the conversion of any Indebtedness of Holdings subsequent to the date hereof, or from the issuance of any options, warrants or other rights to acquire capital stock of Holdings (in each case, exclusive of any Redeemable Stock or any options, warrants or other rights that are redeemable at the option of the holder, or are required to be redeemed, prior to the Stated Maturity of the Securities) plus (3) an amount equal to the net reduction in Investments in Unrestricted Subsidiaries resulting from payments of interest on Indebtedness, dividends, repayments of loans or advances, or other transfers of assets, in each case to Holdings or any Restricted Subsidiary from Unrestricted Subsidiaries, or from redesignations of Unrestricted Subsidiaries as Restricted Subsidiaries (valued in each case as provided in the definition of "Investments"), not to exceed in the case of any Unrestricted Subsidiary the amount of Investments previously made by Holdings or any Restricted Subsidiary in such Unrestricted Subsidiary plus (4) $25 million. The foregoing provision shall not be violated by reason of:

Limitation on Restricted Payments. (a) The Borrower Holding shall --------------------------------- not, and shall not permit any Restricted SubsidiarySubsidiary of Holding to, directly or indirectly, to (i) declare or pay any dividend or make any distribution on or in respect of, or make any distribution to the holders of, Equity Interests of its Capital Stock Holding (including any such payment in connection with any merger or consolidation to which the Borrower is a party) except (x) dividends or distributions payable solely in its Capital Stock (Non-Convertible Equity Interests or in options, warrants or other than Disqualified Stock) rights to acquire its Non-Convertible Equity Interests and (y) except dividends or distributions payable to the Borrower or any Restricted Subsidiary (and, in the case of any such Restricted Subsidiary making such dividend or distribution, to other holders of its Capital Stock on no more than a pro rata basis, measured by valueWholly Owned Guarantor Subsidiary), (ii) purchase, redeem, retire redeem or otherwise acquire or retire for value any Capital Stock Equity Interests of the Borrower held by Persons other than the Borrower or a Restricted Subsidiary (other than any acquisition of Capital Stock deemed to occur upon the exercise of options if such Capital Stock represents a portion of the exercise price thereof)Holding, (iii) voluntarily declare or pay any dividend or make any distribution on or in respect of, or make any distribution to holders of, Equity Interests of any Subsidiary of Holding (other than with respect to any such Equity Interests held by Holding, AK Steel, any Wholly Owned Guarantor Subsidiary or any Wholly Owned Non-Recourse Subsidiary) or purchase, redeem or otherwise acquire or retire for value any Equity Interests of any Subsidiary of Holding (other than such Equity Interests held by Holding, AK Steel, any Wholly Owned Guarantor Subsidiary or any Wholly Owned Non-Recourse Subsidiary), (iv) purchase, repurchase, redeem, defease or otherwise voluntarily acquire or retire for value, prior to scheduled maturity, scheduled repayment or scheduled sinking fund payment, any Junior Debt Subordinated Obligations (other than a the purchase, repurchase, redemption, defeasance repurchase or other acquisition or retirement for value of Subordinated Obligations purchased in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case due within one year of the date of such purchase, repurchase, redemption, defeasance or other acquisition or retirementacquisition), or (ivv) make any Investment (other than a Permitted Investment) in any Person Investments (any such dividend, distribution, purchase, redemption, repurchase, redemption, defeasance, other acquisition or acquisition, retirement or Investment being herein referred to as a “"Restricted Payment”), if at the time the Borrower or such Restricted Subsidiary makes such Restricted Payment after giving effect thereto:") if: ------------------

Limitation on Restricted Payments. (a) The Parent Borrower shall not, and shall not permit any Restricted Subsidiary, directly or indirectly, to (i) declare or pay any dividend or make any distribution on or in respect of its Capital Stock (including any such payment in connection with any merger or consolidation to which the Parent Borrower is a party) except (x) dividends or distributions payable solely in its Capital Stock (other than Disqualified Stock) and (y) dividends or distributions payable to the Parent Borrower or any Restricted Subsidiary (and, in the case of any such Restricted Subsidiary making such dividend or distribution, to other holders of its Capital Stock on no more than a pro rata basis, measured by value), (ii) purchase, redeem, retire or otherwise acquire for value any Capital Stock of the Parent Borrower held by Persons other than the Parent Borrower or a Restricted Subsidiary (other than any acquisition of Capital Stock deemed to occur upon the exercise of options if such Capital Stock represents a portion of the exercise price thereof), (iii) voluntarily purchase, repurchase, redeem, defease or otherwise voluntarily acquire or retire for value, prior to scheduled maturity, scheduled repayment or scheduled sinking fund payment, any Junior Debt Subordinated Obligations (other than Subordinated Obligations owed to a Restricted Subsidiary and other than a purchase, repurchase, redemption, defeasance or other acquisition or retirement for value in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case due within one year of the date of such purchase, repurchase, redemption, defeasance or other acquisition or retirement), (iv) make any cash dividend or cash redemption payments to or in respect of the any Preferred Stock (any such cash dividend or cash redemption payment described in this clause (iv), a “Preferred Stock Restricted Payment”) or (ivv) make any Investment (other than a Permitted Investment) in any Person (any such dividend, distribution, purchase, repurchase, redemption, defeasance, other acquisition or retirement or Investment being herein referred to as a “Restricted Payment”), if at the time the Borrower or such Restricted Subsidiary makes such Restricted Payment after giving effect thereto:.

Limitation on Restricted Payments. (a) The Borrower shall Company will not, and shall will not permit any of its Restricted SubsidiarySubsidiaries, directly or indirectly, to to: (i) declare or pay any dividend or make any distribution on or in respect of its Capital Stock (including any such payment in connection with any merger or consolidation to which involving the Borrower is a partyCompany or any of its Restricted Subsidiaries) except except: (xA) dividends or distributions payable solely in its Capital Stock of the Company (other than Disqualified Stock) or in options, warrants or other rights to purchase such Capital Stock of the Company; and (yB) dividends or distributions payable to the Borrower Company or any a Restricted Subsidiary of the Company (and, in the case of any and if such Restricted Subsidiary making such dividend or distributionis not a Wholly-Owned Subsidiary, to its other holders of its common Capital Stock on no more than a pro rata basis, measured by value), ; (ii) purchase, redeem, retire or otherwise acquire for value any Capital Stock of the Borrower Company or any direct or indirect parent of the Company held by Persons other than the Borrower Company or a Restricted Subsidiary of the Company (other than any acquisition of in exchange for Capital Stock deemed to occur upon the exercise of options if such Capital Stock represents a portion of the exercise price thereofCompany (other than Disqualified Stock), ); (iii) voluntarily purchase, repurchase, redeem, defease or otherwise voluntarily acquire or retire for value, prior to scheduled maturity, scheduled repayment or scheduled sinking fund payment, any Junior Debt Subordinated Obligations or Guarantor Subordinated Obligations (other than a the purchase, repurchase, redemption, defeasance repurchase or other acquisition of Subordinated Obligations or retirement for value Guarantor Subordinated Obligations purchased in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case due within one year of the date of such purchase, repurchase, redemption, defeasance repurchase or other acquisition or retirementacquisition), ; or (iv) make any Restricted Investment (other than a Permitted Investment) in any Person Person; (any such dividend, distribution, purchase, redemption, repurchase, redemption, defeasance, other acquisition or acquisition, retirement or Restricted Investment being herein referred to in clauses (i) through (iv) shall be referred to herein as a “Restricted Payment”"RESTRICTED PAYMENT"), if at the time the Borrower Company or such Restricted Subsidiary makes such Restricted Payment after giving effect theretoPayment:

Limitation on Restricted Payments. (a) The Borrower shall Guarantor will not, and shall will not permit any Restricted Subsidiary, directly or indirectly, to (i) declare or pay any dividend or make any distribution on or in with respect of to its Capital Stock (including any such payment in connection with any merger or consolidation to which the Borrower is a party) except other than (x) dividends or distributions payable solely in shares of its Capital Stock (other than Disqualified Stock) or in options, warrants or other rights to acquire shares of such Capital Stock and (y) pro rata dividends or distributions payable to on Common Stock of Restricted Subsidiaries held by minority stockholders, provided that such dividends do not in the Borrower aggregate exceed the minority stockholders' pro rata share of such Restricted Subsidiaries' net income from the first day of the fiscal quarter beginning immediately following the Closing Date) held by Persons other than the Guarantor or any Restricted Subsidiary (and, in the case of any such Restricted Subsidiary making such dividend or distribution, to other holders of its Capital Stock on no more than a pro rata basis, measured by value)Restricted Subsidiaries, (ii) purchase, redeem, retire or otherwise acquire for value any shares of Capital Stock of (A) the Guarantor or the Issuer, any Person that has sold Capital Stock which allows the Issuer or the Guarantor or such Person to Incur Indebtedness under clause (viii) of the second paragraph of Section 4.03 above or an Unrestricted Subsidiary (including options, warrants or other rights to acquire such shares of Capital Stock) held by any Person or (B) a Restricted Subsidiary (including options, warrants or other rights to acquire such shares of Capital Stock) held by any Affiliate of the Guarantor (other than a Wholly Owned Restricted Subsidiary) or any holder (or any Affiliate of such holder) of 5% or more of the Capital Stock of the Borrower held by Persons other than the Borrower or a Restricted Subsidiary (other than any acquisition of Capital Stock deemed to occur upon the exercise of options if such Capital Stock represents a portion of the exercise price thereof)Guarantor, (iii) voluntarily purchasemake any voluntary or optional principal payment, or voluntary or optional redemption, repurchase, redeemdefeasance, defease or otherwise voluntarily acquire or retire for value, prior to scheduled maturity, scheduled repayment or scheduled sinking fund payment, any Junior Debt (other than a purchase, repurchase, redemption, defeasance or other acquisition or retirement for value value, prior to the scheduled maturity, of Indebtedness of the Guarantor or the Issuer that is subordinated in right of payment to the Notes or the Note Guarantee (other than the purchase, repurchase or the acquisition of Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each any case due within one year of the date of acquisition) or (iv) make any Investment, other than a Permitted Investment, in any Person (such purchasepayments or any other actions described in clauses (i) through (iv) being collectively "Restricted Payments") if at the time of, and after giving effect to, the proposed Restricted Payment: (A) a Default or Event of Default shall have occurred and be continuing, (B) except with respect to Investments, the Guarantor could not Incur at least $1.00 of Indebtedness under the first paragraph of Section 4.03 above or (C) the aggregate amount of all Restricted Payments (the amount, if other than in cash, to be determined in good faith by the Board of Directors, whose determination shall be conclusive and evidenced by a Board Resolution) made after the Closing Date shall exceed the sum of (1) 50% of the aggregate amount of the Adjusted Consolidated Net Income (or, if the Adjusted Consolidated Net Income is a loss, minus 100% of the amount of such loss) (determined by excluding income resulting from transfers of assets by the Guarantor or a Restricted Subsidiary to an Unrestricted Subsidiary) accrued on a cumulative basis during the period (taken as one accounting period) beginning on the first day of the fiscal quarter immediately following the Closing Date and ending on the last day of the last fiscal quarter preceding the Transaction Date for which reports have been filed pursuant to Section 4.19 below plus (2) the aggregate Net Cash Proceeds received by the Guarantor or the Issuer after the Closing Date from the issuance and sale permitted by the Indenture of Capital Stock of the Guarantor or the Issuer (other than Disqualified Stock), to a Person who is not a Subsidiary of the Guarantor or from the issuance to a Person who is not a Subsidiary of the Guarantor of any options, warrants or other rights to acquire Capital Stock of the Issuer or the Guarantor (in each case, exclusive of any Disqualified Stock or any options, warrants or other rights that are redeemable at the option of the holder, or are required to be redeemed, prior to the Stated Maturity of the Notes) plus (3) an amount equal to the net reduction in Investments (other than reductions in Permitted Investments) in any Person resulting from payments of interest on Indebtedness, dividends, repayments of loans or advances, or other transfers of assets, in each case to the Guarantor or any Restricted Subsidiary or from the Net Cash Proceeds from the sale of any such Investment (except, in each case, to the extent any such payment or proceeds are included in the calculation of Adjusted Consolidated Net Income), or from redesignations of Unrestricted Subsidiaries as Restricted Subsidiaries (valued in each case as provided in the definition of "Investments"), not to exceed, in each case, the amount of Investments previously made by the Guarantor or any Restricted Subsidiary in such Person or Unrestricted Subsidiary. The foregoing provision shall not be violated by reason of: (i) the payment of any dividend within 60 days after the date of declaration thereof if, at said date of declaration, such payment would comply with the foregoing paragraph; (ii) the redemption, repurchase, redemption, defeasance or other acquisition or retirement)retirement for value of Indebtedness that is subordinated in right of payment to the Notes or the Note Guarantee, including premium, if any, and accrued and unpaid interest, with the proceeds of, or in exchange for, Indebtedness Incurred under clause (iii) of the second paragraph of part (a) of Section 4.03 above; (iii) the repurchase, redemption or other acquisition of Capital Stock of the Guarantor or the Issuer (or options, warrants or other rights to acquire such Capital Stock) in exchange for, or out of the proceeds of a substantially concurrent offering of, shares of Capital Stock (other than Disqualified Stock) of the Guarantor or the Issuer; (iv) make the making of any Investment (other than a Permitted Investment) in any Person (any such dividend, distribution, purchase, principal payment or the repurchase, redemption, defeasanceretirement, defeasance or other acquisition for value of Indebtedness of the Guarantor or retirement the Issuer which is subordinated in right of payment to the Notes or Investment being herein referred the Note Guarantee, as the case may be, in exchange for, or out of the proceeds of, a substantially concurrent offering of, shares of the Capital Stock of the Guarantor or the Issuer (other than Disqualified Stock); (v) the declaration or payment of dividends on the Common Stock of the Guarantor or the Issuer following a Public Equity Offering of such Common Stock, of up to 6% per annum of the Net Cash Proceeds received by the Guarantor or the Issuer, as the case may be, in such Public Equity Offering; (vi) payments or distributions, to dissenting stockholders pursuant to applicable law, pursuant to or in connection with a “Restricted Payment”consolidation, merger or transfer of assets that complies with the provisions of the Indenture applicable to mergers, consolidations and transfers of all or substantially all of the property and assets of the Guarantor; (vii) any Investments described in clause (A), if at (B) or (C) below, provided that the time the Borrower or sum of such Restricted Subsidiary makes such Restricted Payment after giving effect thereto:Investments does not exceed $25

Limitation on Restricted Payments. The Company (ai) The Borrower shall may not, and shall not permit any Restricted Subsidiary, directly or indirectly, to (i) declare or pay any dividend dividend, or make any distribution on or distribution, in respect of its Capital Stock or to the holders thereof (including in their capacity as such), excluding any such payment in connection with any merger or consolidation to which the Borrower is a party) except (x) dividends or distributions payable solely in shares of its Capital Stock (other than Disqualified Stock) or in options, warrants or other rights to acquire its Capital Stock (other than Disqualified Stock); (ii) may not, and (y) dividends or distributions payable to the Borrower or may not permit any Restricted Subsidiary (andto, in the case of any such Restricted Subsidiary making such dividend or distribution, to other holders of its Capital Stock on no more than a pro rata basis, measured by value), (ii) purchase, redeem, or otherwise retire or otherwise acquire for value (a) any Capital Stock of the Borrower held by Persons Company or any Related Person of the Company; or (b) any options, warrants or rights to purchase or acquire shares of Capital Stock of the Company or any Related Person of the Company or any securities convertible or exchangeable -71- into shares of Capital Stock of the Company or any Related Person of the Company; (iii) may not make, or permit any Restricted Subsidiary to make, any Investment in, or payment on a Guarantee of any obligation of, any Person, other than the Borrower Company or a Restricted Subsidiary (other than any acquisition of Capital Stock deemed to occur upon the exercise of options if such Capital Stock represents a portion of the exercise price thereof)Company, except for Permitted Investments; and (iiiiv) voluntarily purchasemay not, and may not permit any Restricted Subsidiary to, redeem, defease, repurchase, redeem, defease retire or otherwise voluntarily acquire or retire for value, prior to any scheduled maturity, scheduled repayment or scheduled sinking fund payment, Debt of the Company which is subordinate in right of payment to the Securities (each of clauses (i) through (iv) being a "Restricted Payment") if: (1) a Default or an Event of Default shall have occurred and is continuing; or (2) upon giving effect to such Restricted Payment, the Company could not Incur at least $1.00 of additional Debt pursuant to the provisions of the first paragraph of Section 1007; or (3) upon giving effect to such Restricted Payment, the aggregate of all Restricted Payments from the Preferred Issue Date exceeds the sum of: (a) 50% of cumulative Consolidated Net Income (or, in the case Consolidated Net Income shall be negative, less 100% of such deficit) since the end of the last full fiscal quarter prior to the Preferred Issue Date through the last day of the last full fiscal quarter ending immediately preceding the date of such Restricted Payment; plus (b) $5 million; plus (c) 100% of the net reduction in Investments in any Junior Debt (other than a purchaseUnrestricted Subsidiary resulting from payments of interest on Debt, repurchasedividends, redemptionrepayments of loans or advances, defeasance or other acquisition or retirement for value in anticipation transfers of satisfying a sinking fund obligation, principal installment or final maturityassets, in each case due to the Company or any Restricted Subsidiary of the Company from such Unrestricted Subsidiary (except to the extent that any such payment is included in the calculation of Consolidated Net Income) or from redesignations of Unrestricted Subsidiaries as Restricted Subsidiaries; provided that the amount included in this clause (c) shall not exceed the amount of Investments previously made by the Company and its Restricted Subsidiaries in such Unrestricted Subsidiary; provided, further, that the Company or a Restricted Subsidiary of the Company may make any Restricted Payment with the aggregate net proceeds received after the Preferred Issue Date, including the fair value of property other than cash (determined in good faith by the Board of Directors, as conclusively evidenced by a Board Resolution), as capital contributions to the Company or from the issuance (other than to a Restricted Subsidiary) of Capital Stock (other than Disqualified Stock) of the Company and warrants, rights or options on Capital Stock (other than Disqualified Stock) of the Company and the principal amount of Debt of the Company that has been converted into Capital Stock (other than Disqualified Stock and other than by a Restricted Subsidiary) of the Company after the Preferred Issue Date. Notwithstanding the foregoing, the Company may (i) pay any dividend on Capital Stock of any class within one year 60 days after the declaration thereof if, on the date when the dividend was declared, the Company could have paid such dividend in accordance with the foregoing provisions; (ii) repurchase any shares of its Common Equity or options to acquire its Common Equity from Persons who were formerly officers or employees of the Company, provided that the aggregate amount of all such repurchases made pursuant to this clause (ii) shall not exceed $2 million, plus the aggregate cash proceeds received by the Company since the date of such purchasethis Indenture from issuances of its Common Equity or options to acquire its Common Equity to members, repurchaseofficers, redemption, defeasance managers and employees of the Company or other acquisition or retirement), or any of its Subsidiaries; (iii) the Company and its Restricted Subsidiaries may refinance any Debt otherwise permitted by clause (iv) make of the second paragraph of Section 1007; and (iv) the Company and its Restricted Subsidiaries may retire or repurchase any Investment Capital Stock of the Company or of any Restricted Subsidiary of the Company in exchange for, or out of the proceeds of the substantially concurrent sale (other than to a Permitted InvestmentRestricted Subsidiary of the Company) in any Person of, Capital Stock (any such dividendother than Disqualified Stock) of the Company. If the Company makes a Restricted Payment which, distribution, purchase, repurchase, redemption, defeasance, other acquisition or retirement or Investment being herein referred to as a “Restricted Payment”), if at the time of the Borrower or making of such Restricted Subsidiary makes Payment, would in the good faith determination of the Company be permitted under this Indenture, such Restricted Payment after giving effect thereto:shall be deemed to have been made in compliance with this Indenture notwithstanding any subsequent adjustments made in good faith to the Company financial statements affecting Consolidated Net Income for any period.

Limitation on Restricted Payments. (a) The Borrower shall Company will not, and shall will not permit any Restricted SubsidiarySubsidiary of the Company to, directly or indirectly, to (i) declare or pay any dividend or make any distribution on or in respect of its Capital Stock (including any such payment in connection with any merger or consolidation to which the Borrower is a party) except (x) other than dividends or distributions payable solely in shares of its or such Subsidiary's Capital Stock (other than Disqualified Redeemable Stock) of the same relative priority in liquidation and (ywith respect to dividends held by such holders or in options, warrants or other rights to acquire such shares of Capital Stock) dividends held by Persons other than the Company or distributions payable to a Subsidiary of the Borrower or any Restricted Subsidiary (and, in the case of any such Restricted Subsidiary making such dividend or distribution, to other holders of its Capital Stock on no more than a pro rata basis, measured by value)Company, (ii) purchase, redeem, retire or otherwise acquire for value any shares of Capital Stock of the Borrower Company or any Subsidiary of the Company (including options, warrants or other rights to acquire such shares of Capital Stock) held by Persons other than the Borrower Company or a Restricted Substantially-Owned Subsidiary of the Company other than in exchange for shares of Capital Stock of the Company (other than any acquisition Redeemable Stock) or options, warrants or other rights to acquire such shares of Capital Stock deemed to occur upon the exercise of options if such Capital Stock represents a portion of the exercise price thereof)Stock, (iii) voluntarily purchasemake any voluntary or optional principal payment, or voluntary or optional redemption, repurchase, redeemdefeasance, defease or otherwise voluntarily acquire or retire for value, prior to scheduled maturity, scheduled repayment or scheduled sinking fund payment, any Junior Debt (other than a purchase, repurchase, redemption, defeasance or other acquisition or retirement for value in anticipation value, of satisfying a sinking fund obligation, principal installment or final maturity, in each case due within one year Indebtedness of the date Company or any Subsidiary of such purchase, repurchase, redemption, defeasance the Company that is subordinated in right of payment to the Securities other than pursuant to clause (viii) of the second paragraph of Section 1008 or other acquisition or retirement)clause (ii)(h) of Section 1011, or (iv) make any Investment in any Affiliate of the Company or any Subsidiary of the Company, except to the extent that the consideration used to make such Investment consists of Capital Stock (other than Redeemable Stock) of the Company (such payments or any other actions described in clauses (i) through (iv) being collectively "Restricted Payments"), if, at the time of, and after giving effect to, the proposed Restricted Payment: (1) an Event of Default or event that, after notice or passage of time or both would become an Event of Default, will have occurred and be continuing, (2) the Company could not Incur at least $1.00 of Indebtedness under the first paragraph of Section 1008 or (3) the aggregate amount expended for all Restricted Payments (the amount so expended, if other than in cash, to be determined in good faith by the Board of Directors, whose determination will be conclusive and evidenced by a Board Resolution) after the date hereof will exceed the sum of (X) 50% of the aggregate amount of the Adjusted Consolidated Net Income (or, if the Adjusted Consolidated Net Income is a loss, minus 100% of such amount) of the Company accrued on a cumulative basis during the period (taken as one accounting period) beginning on July 1, 1996 and ending on the last day of the last fiscal quarter preceding the Transaction Date plus (Y) the aggregate net proceeds (including the fair market value of non-cash proceeds as determined in good faith by the Board of Directors, whose determination will be conclusive and evidenced by a Board Resolution) received by the Company from the issuance and sale of its Capital Stock (not including Redeemable Stock) to a Person who is not a Subsidiary of the Company, including an issuance or sale permitted by this Indenture for cash or other property upon the conversion of any Indebtedness of the Company subsequent to the Issue Date, or from the issuance of any options, warrants or other rights to acquire Capital Stock of the Company (in each case, exclusive of any Redeemable Stock or any options, warrants or other rights that are redeemable at the option of the holder, or are required to be redeemed, prior to the Stated Maturity of the Securities and exclusive of any issuance of Capital Stock to an Affiliate as contemplated by (iv) above if such Person is an Affiliate by virtue of clause (i) of the definition of "Affiliate"), plus (Z) $10 million. The foregoing provision will not take into account, and will not be violated by reason of, (i) an Investment by the Company in a Substantially-Owned Subsidiary of the Company or by any Subsidiary of the Company in the Company or a Subsidiary of the Company or an Investment by the Company or any Subsidiary of the Company in any Affiliate that becomes a Subsidiary of the Company or any of its Subsidiaries as a result of such Investment (other than a Permitted InvestmentPerson that is an Affiliate by virtue of clause (i) of the definition of "Affiliate"); (ii) the purchase of up to 20,000 Series A Shares of the Company in any Person consecutive 12-month period by the Company, provided such Series A Shares of the Company are contributed to the Company's Employee Stock Option Trust; (any such dividendiii) payments to purchase shares of Capital Stock of Grupo Industrial Atenquique, distribution, S.A. de C.V. outstanding on the Issue Date and not owned directly or indirectly by the Company; (iv) payments pursuant to the purchase, repurchase, redemption, defeasance, redemption or other acquisition for value of any shares of Capital Stock of the Company solely out of the proceeds of the concurrent sale (other than to a Subsidiary of the Company) of shares of Capital Stock of the Company (other than Redeemable Stock); (v) payments of pro rata dividends to holders of minority interests in Subsidiaries of the Company; (vi) Permitted Business Investments not otherwise permitted by clause (i) above, provided that the aggregate amount of such Permitted Business Investment does not exceed $5 million in any 12-month period; or retirement or Investment being herein referred (vii) the payment of any dividend within 60 days after the date of declaration thereof, provided, however, that any amounts paid pursuant to clause (vii) will thereafter be considered as a “Restricted Payment”), if at Payments paid pursuant to clause (3) of the time the Borrower or such Restricted Subsidiary makes such Restricted Payment after giving effect thereto:preceding paragraph.

Limitation on Restricted Payments. (a) The Borrower shall Company will not, and shall will not permit any Restricted SubsidiarySubsidiary to, directly or indirectly, to (i) declare or pay any dividend or make any distribution on or in with respect of to its Capital Stock (including any such payment in connection with any merger or consolidation to which the Borrower is a party) except other than (x) dividends or distributions payable solely in shares of its Capital Stock (other than Disqualified Stock) or in options, warrants or other rights to acquire shares of such Capital Stock and (y) pro rata dividends or distributions payable on Capital Stock of Restricted Subsidiaries to holders of such Capital Stock) held by Persons other than the Borrower Company or any Restricted Subsidiary (and, in the case of any such Restricted Subsidiary making such dividend or distribution, to other holders of its Capital Stock on no more than a pro rata basis, measured by value)Restricted Subsidiaries, (ii) purchase, call for redemption or redeem, retire or otherwise acquire for value any shares of Capital Stock of (A) the Borrower Company or any Guarantor (including options, warrants or other rights to acquire such shares of Capital Stock) held by Persons any Person other than the Borrower Company or any of its Restricted Subsidiaries or (B) a Restricted Subsidiary other than a Guarantor (including options, warrants or other rights to acquire such shares of Capital Stock) held by any Affiliate of the Company (other than a Restricted Subsidiary) or any acquisition holder of Capital Stock deemed to occur upon the exercise of options if such Capital Stock represents a portion 5% or more of the exercise price thereof)Common Stock of the Company, (iii) voluntarily purchasemake any voluntary or optional principal payment, or voluntary or optional redemption, repurchase, redeemdefeasance, defease or otherwise voluntarily acquire or retire for value, prior to scheduled maturity, scheduled repayment or scheduled sinking fund payment, any Junior Debt (other than a purchase, repurchase, redemption, defeasance or other voluntary acquisition or retirement for value in anticipation value, of satisfying a sinking fund obligation, principal installment or final maturity, in each case due within one year Indebtedness of the date Company that is subordinated in right of such purchase, repurchase, redemption, defeasance payment to the Notes or other acquisition or retirement), any Indebtedness of a Guarantor that is subordinated in right of payment to a Note Guarantee or (iv) make any Investment (Investment, other than a Permitted Investment) , in any Person (such payments or any such dividendother actions described in, distributionbut not excluded from, purchaseclauses (i) through (iv) above being collectively "Restricted Payments") if, repurchase, redemption, defeasance, other acquisition or retirement or Investment being herein referred to as a “Restricted Payment”), if at the time the Borrower or such Restricted Subsidiary makes such Restricted Payment of, and after giving effect theretoto, the proposed Restricted Payment:

Limitation on Restricted Payments. (a) The Borrower shall not, and Company shall not permit any Restricted Subsidiary, directly or indirectly, to (i) declare or pay any dividend dividend, or make any distribution on distribution, of any kind or character (whether in cash, property or securities) in respect of its Capital Stock or to the holders thereof in their capacity as such (including excluding the Spin-Off Payments and any such payment in connection with any merger or consolidation to which the Borrower is a party) except (x) dividends or distributions payable solely in shares of its Capital Stock (other than Disqualified StockRedeemable Interests) and (y) dividends or distributions payable in options, warrants or other rights to the Borrower or any Restricted Subsidiary (and, in the case of any such Restricted Subsidiary making such dividend or distribution, to other holders of acquire its Capital Stock on no more (other than a pro rata basis, measured by valueRedeemable Interests)), (ii) purchase, redeem, retire redeem or otherwise acquire for value any Capital Stock of the Borrower held by Persons other than the Borrower or a Restricted Subsidiary (other than any acquisition of Capital Stock deemed to occur upon the exercise of options if such Capital Stock represents a portion of the exercise price thereof), (iii) voluntarily purchase, repurchase, redeem, defease or otherwise voluntarily acquire or retire for value, or permit any Restricted Subsidiary to purchase, redeem or otherwise acquire or retire for value (a) any Capital Stock of the Company or any Capital Stock of or other ownership interests in any Subsidiary or any Affiliate or Related Person of the Company (other than any such acquisition which results in such Subsidiary, Affiliate or Related Person becoming a Restricted Subsidiary) or (b) any options, warrants or rights to purchase or acquire shares of Capital Stock of the Company or any Capital Stock of or other ownership interests in any Subsidiary or any Affiliate or Related Person of the Company (excluding the redemption or repurchase by any Restricted Subsidiary of any of its Capital Stock, other ownership interests or options, warrants or rights to purchase such Capital Stock or other ownership interests, in each case, owned by the Company or a Wholly Owned Restricted Subsidiary and any such acquisition that results in such Subsidiary, Affiliate or Related Person becoming a Restricted Subsidiary), (iii) permit any Restricted Subsidiary to declare or pay any dividend, or make any distribution, of any kind or character (whether in cash, property or securities) in respect of the Capital Stock of or other ownership interests in such Restricted Subsidiary or to the holders of such Restricted Subsidiary's Capital Stock or other ownership interests (excluding any dividends or distributions payable solely in shares of Capital Stock of or other ownership interests in such Restricted Subsidiary (other than Redeemable Interests) or in options, warrants or rights to acquire Capital Stock of or other ownership interests in such Restricted Subsidiary (other than Redeemable Interests)) other than (A) the payment by any Restricted Subsidiary of dividends or other distributions to the Company or a Wholly Owned Restricted Subsidiary, or (B) the payment of pro rata dividends to holders of both minority and majority interests in the Capital Stock or other ownership interests of any such Restricted Subsidiary, (iv) make, or permit any Restricted Subsidiary to make, any Investment in any Person that is not a Permitted Investment or (v) redeem, defease, repurchase, retire or otherwise acquire or retire for value prior to any scheduled maturity, scheduled repayment or scheduled sinking fund payment, any Junior Debt of the Company (other than a purchase, repurchase, redemption, defeasance the Securities) that is Pari Passu with or other acquisition or retirement for value subordinate in anticipation right of satisfying a sinking fund obligation, principal installment or final maturity, in payment to the Securities (each case due within one year of the date of such purchase, repurchase, redemption, defeasance or other acquisition or retirementtransactions described in Clauses (i) through (v) being a "Restricted Payment"), or (iv) make any Investment (other than a Permitted Investment) in any Person (any such dividend, distribution, purchase, repurchase, redemption, defeasance, other acquisition or retirement or Investment being herein referred to as a “Restricted Payment”), if at the time the Borrower or such Restricted Subsidiary makes such Restricted Payment after giving effect theretoif:

Limitation on Restricted Payments. (a) The Borrower shall will not, and shall will not permit any Restricted SubsidiarySubsidiary to, directly or indirectly, to : (i) declare or pay any dividend or make any distribution on account of the Borrower's or in respect of its Capital Stock (any Restricted Subsidiary's Equity Interests, including any such payment dividend or distribution payable in connection with any merger or consolidation to which the Borrower is a party) except (xother than (A) dividends or distributions by the Borrower payable solely in its Capital Stock Equity Interests (other than Disqualified Stock) and of the Borrower or in options, warrants or other rights to purchase such Equity Interests or (yB) dividends or distributions payable to the Borrower or any by a Restricted Subsidiary (andso long as, in the case of any such dividend or distribution payable on or in respect of any class or series of securities issued by a Subsidiary other than a Wholly Owned Subsidiary, the Borrower or a Restricted Subsidiary making receives at least its pro rata share of such dividend or distribution, to other holders distribution in accordance with its Equity Interests in such class or series of its Capital Stock on no more than a pro rata basis, measured by valuesecurities), ; (ii) purchase, redeem, retire defease or otherwise acquire or retire for value any Capital Stock Equity Interests of the Borrower held by Persons other than the Borrower or a Restricted Subsidiary (other than any acquisition of Capital Stock deemed to occur upon the exercise of options if such Capital Stock represents a portion direct or indirect parent of the exercise price thereof)Borrower, including in connection with any merger or consolidation; (iii) voluntarily purchasemake any principal payment on, or redeem, repurchase, redeem, defease or otherwise voluntarily acquire or retire for valuevalue in each case, prior to any scheduled repayment, sinking fund payment or maturity, scheduled repayment or scheduled sinking fund payment, any Junior Debt Subordinated Indebtedness (other than a (x) Indebtedness permitted under clauses (b)(vii) and (b)(viii) of Section 10.3 or (y) the purchase, repurchase, redemption, defeasance repurchase or other acquisition or retirement for value of Subordinated Indebtedness purchased in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case due within one year of the date of such purchase, repurchase, redemption, defeasance repurchase or other acquisition or retirementacquisition), ; or (iv) make any Restricted Investment (all such payments and other than a Permitted Investmentactions set forth in clauses (i) in any Person through (any such dividend, distribution, purchase, repurchase, redemption, defeasance, other acquisition or retirement or Investment iv) above being herein collectively referred to as a “"Restricted Payment”), if Payments") unless at the time the Borrower or of such Restricted Subsidiary makes such Restricted Payment after giving effect theretoPayment:

Limitation on Restricted Payments. No Indenture Obligor will, nor will it cause, permit or suffer any of its Obligor Subsidiaries to, (a) The Borrower shall not, and shall not permit any Restricted Subsidiary, directly or indirectly, to (i) declare or pay any dividend dividends or make any distribution other distributions (including through mergers, liquidations or other transactions but excluding, for the avoidance of doubt, the issuance of New Common Stock pursuant to the Plan of Reorganization) on any class of Capital Stock of any Indenture Obligor or in respect its Obligor Subsidiaries (other than dividends or distributions payable or paid by a Wholly-Owned Subsidiary of PCI or of the Company on account of its Capital Stock (including any such payment held by PCI or the Company or another Subsidiary of PCI or the Company or payable or paid in connection with any merger or consolidation to which the Borrower is a party) except (x) dividends or distributions payable solely in its shares of Capital Stock of the Company other than preferred stock or redeemable stock), (b) make any payment on account of, or set apart money for a sinking or other analogous fund for, the purchase, redemption or other retirement of such Capital Stock, (c) purchase, defease, redeem or otherwise retire any Subordinated Indebtedness (other than Disqualified Stock) and (y) dividends or distributions payable with the proceeds of the issuance of Capital Stock of PCI which is permitted to be issued pursuant to the Borrower terms of this Indenture or with the proceeds of Subordinated Indebtedness which is permitted to be incurred pursuant to the terms of this Indenture), or (d) make any Restricted Subsidiary (andInvestment, either directly or indirectly, whether in the case cash or property or in obligations of any such Indenture Obligor or its Obligor Subsidiaries (all of the foregoing being called "Restricted Subsidiary making such dividend or distributionPayments"). Notwithstanding the foregoing, to other holders of its Capital Stock on no more than a pro rata basis, measured by value)any Obligor may make (i) Permitted Issuances, (ii) purchase, redeem, retire or otherwise acquire for value any Capital Stock of Restricted Payments made pursuant to the Borrower held by Persons other than the Borrower or a Restricted Subsidiary (other than any acquisition of Capital Stock deemed to occur upon the exercise of options if such Capital Stock represents a portion of the exercise price thereof)Transaction Documents, (iii) voluntarily purchasePermitted Investments, repurchase, redeem, defease or otherwise voluntarily acquire or retire for value, prior to scheduled maturity, scheduled repayment or scheduled sinking fund payment, any Junior Debt (other than a purchase, repurchase, redemption, defeasance or other acquisition or retirement for value in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case due within one year of the date of such purchase, repurchase, redemption, defeasance or other acquisition or retirement), or and (iv) make any Investment (other than a Permitted Investment) in any Person (any such dividend, distribution, purchase, repurchase, redemption, defeasance, other acquisition or retirement or Investment being herein referred regularly scheduled payments on Subordinated Indebtedness which is permitted to as a “Restricted Payment”), if at be incurred pursuant to the time the Borrower or such Restricted Subsidiary makes such Restricted Payment after giving effect thereto:terms of this Indenture.

Limitation on Restricted Payments. (a) The Borrower Company shall not, and shall not permit any of its Restricted SubsidiarySubsidiaries to, directly or indirectly, to : (i) declare or pay any dividend or make any distribution on account of the Company's or in respect any of its Capital Stock Restricted Subsidiaries' Equity Interests (including any such payment in connection with any merger or consolidation to which the Borrower is a party) except other than: (x1) dividends or distributions payable solely in its Capital Stock Equity Interests (other than Disqualified Stock) of the Company; (2) dividends or distributions by a Restricted Subsidiary of the Company, provided that to the extent that a portion of such dividend or distribution is paid to a holder of Equity Interests of a Restricted Subsidiary other than the Company or a Restricted Subsidiary, such portion of such dividend or distribution is not greater than such holder's pro rata aggregate common equity interest in such Restricted Subsidiary; and (y3) dividends or distributions payable to the Borrower or any Restricted Subsidiary (and, on Existing Preferred OP Units and Preferred OP Units issued in the case of any such Restricted Subsidiary making such dividend or distribution, to other holders of its Capital Stock on no more than a pro rata basis, measured by valuecompliance with Section 4.09 hereof), ; (ii) purchase, redeem, retire redeem or otherwise acquire for value any Capital Stock of the Borrower held by Persons other than the Borrower or a Restricted Subsidiary (other than any acquisition of Capital Stock deemed to occur upon the exercise of options if such Capital Stock represents a portion of the exercise price thereof), (iii) voluntarily purchase, repurchase, redeem, defease or otherwise voluntarily acquire or retire for value, prior to scheduled maturity, scheduled repayment value any Equity Interests of the Company or scheduled sinking fund payment, any Junior Debt Restricted Subsidiary or other Affiliate of the Company (other than a (A) any Equity Interests owned by the Company or any Restricted Subsidiary of the Company, (B) any Existing Preferred OP Units and (C) any Preferred OP Units issued in compliance with Section 4.9 hereof); (iii) purchase, repurchase, redemption, defeasance redeem or other acquisition otherwise acquire or retirement retire for value any Indebtedness of the Company or any Restricted Subsidiary that is subordinated or junior in anticipation right of satisfying a payment, by its terms, to the Notes or any Guarantee thereof prior to the scheduled final maturity or sinking fund obligation, payment dates for payment of principal installment and interest in accordance with the original documentation for such subordinated or final maturity, in each case due within one year of the date of such purchase, repurchase, redemption, defeasance or other acquisition or retirement), junior Indebtedness; or (iv) make any Investment (all such payments and other than a Permitted Investmentactions set forth in clauses (i) in any Person through (any such dividend, distribution, purchase, repurchase, redemption, defeasance, other acquisition or retirement or Investment iv) above being herein collectively referred to as a “"Restricted Payment”Payments"), if unless, at the time the Borrower or of such Restricted Subsidiary makes such Restricted Payment after giving effect theretoPayment:

Limitation on Restricted Payments. (a) The Borrower Company shall not, and shall not permit any of its Restricted SubsidiarySubsidiaries, directly or indirectly, to (i) to: declare or pay any dividend or make any distribution (whether made in cash, securities or other property) on or in respect of its Capital Stock or any of its Restricted Subsidiaries’ Equity Interests (including any such payment in connection with any merger or consolidation to which involving the Borrower is a partyCompany or any of its Restricted Subsidiaries) except (x) other than: dividends or distributions payable solely in its Capital Stock Equity Interests of the Company (other than Disqualified Stock) ); and (y) dividends or distributions payable to the Borrower or any by a Restricted Subsidiary (andSubsidiary, so long as, in the case of any such dividend or distribution payable on or in respect of any Capital Stock issued by a Restricted Subsidiary making that is not a Wholly Owned Subsidiary, the Company or the Restricted Subsidiary holding such Capital Stock receives at least its pro rata share of such dividend or distribution, to other holders of its Capital Stock on no more than a pro rata basis, measured by value), (ii) ; purchase, redeem, retire or otherwise acquire for value value, including in connection with any Capital Stock merger or consolidation, any Equity Interests of the Borrower Company or any direct or indirect parent company of the Company held by Persons other than the Borrower Company or a Restricted Subsidiary (other than Subsidiary; make any acquisition of Capital Stock deemed to occur upon the exercise of options if such Capital Stock represents a portion of the exercise price thereof)principal payment on, (iii) voluntarily or purchase, repurchase, redeem, defease or otherwise voluntarily acquire or retire for value, prior to any scheduled repayment, scheduled sinking fund payment or scheduled maturity, scheduled repayment any Subordinated Obligations or scheduled sinking fund paymentGuarantor Subordinated Obligations, other than: Indebtedness of the Company owing to and held by any Junior Debt (Restricted Subsidiary or Indebtedness of a Restricted Subsidiary owing to and held by the Company or any other than a Restricted Subsidiary; or the purchase, repurchase, redemption, defeasance or other acquisition or retirement for value of Subordinated Obligations or Guarantor Subordinated Obligations purchased in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case due within one year of the date of such purchase, repurchase, redemption, defeasance or other acquisition or retirement), ; or (iv) make any Restricted Investment (all such payments and other actions referred to in clauses (1) through (4) above (other than a Permitted Investmentany exception thereto) in any Person (any such dividend, distribution, purchase, repurchase, redemption, defeasance, other acquisition or retirement or Investment being herein shall be referred to as a “Restricted Payment”), if unless, at the time the Borrower or of and after giving effect to such Restricted Subsidiary makes Payment: no Default shall have occurred and be continuing (or would result therefrom); immediately after giving effect to such transaction on a pro forma basis, the Company could Incur $1.00 of additional Indebtedness under Section 4.09(a); and the aggregate amount of such Restricted Payment after giving effect thereto:and all other Restricted Payments declared or made subsequent to the Issue Date (including Restricted Payments made pursuant to clauses (6), (7), (11), (12) and (14) of Section 4.08(b) but excluding all other Restricted Payments permitted by Section 4.08(b)) would not exceed the sum of (without duplication):

Limitation on Restricted Payments. (a) The Borrower shall Company will not, --------------------------------- and shall will not permit any Restricted SubsidiarySubsidiary to, directly or indirectly, to (i) declare or pay any dividend or make any distribution on or in with respect of to its Capital Stock (including any such payment in connection with any merger or consolidation to which the Borrower is a party) except other than (x) dividends or distributions payable solely in shares of its Capital Stock (other than Disqualified Stock) or in options, warrants or other rights to acquire shares of such Capital Stock and (y) pro rata dividends or distributions payable to on Common Stock of Restricted Subsidiaries held by minority stockholders) held by Persons other than the Borrower Company or any Restricted Subsidiary (and, in the case of any such Restricted Subsidiary making such dividend or distribution, to other holders of its Capital Stock on no more than a pro rata basis, measured by value)Restricted Subsidiaries, (ii) purchase, redeem, retire or otherwise acquire for value any shares of Capital Stock of (A) the Company or an Unrestricted Subsidiary (including options, warrants or other rights to acquire such shares of Capital Stock) held by any Person or (B) a Restricted Subsidiary (including options, warrants or other rights to acquire such shares of Capital Stock) held by any Affiliate of the Company (other than a Wholly Owned Restricted Subsidiary) or any holder (or any Affiliate of such holder) of 5% or more of the Capital Stock of the Borrower held by Persons other than the Borrower or a Restricted Subsidiary (other than any acquisition of Capital Stock deemed to occur upon the exercise of options if such Capital Stock represents a portion of the exercise price thereof)Company, (iii) voluntarily purchasemake any voluntary or optional principal payment, or voluntary or optional redemption, repurchase, redeemdefeasance, defease or otherwise voluntarily acquire other acquisition or retire retirement for value, prior of Indebtedness of the Company that is subordinated in right of payment to scheduled maturitythe Notes or (iv) make any Investment, scheduled repayment other than a Permitted Investment, in any Person (such payments or scheduled sinking fund paymentany other actions described in clauses (i) through (iv) above being collectively "Restricted Payments") if, any Junior Debt at the time of, and after giving effect to, the proposed Restricted Payment: (A) a Default or Event of Default shall have occurred and be continuing, (B) the Company could not Incur at least $1.00 of Indebtedness under the first paragraph of Section 4.03(a) or (C) the aggregate amount of all Restricted Payments (the amount, if other than in cash, to be determined in good faith by the Board of Directors, whose determination shall be conclusive and evidenced by a Board Resolution) made after the Closing Date shall exceed the sum of (1) the aggregate amount of the Consolidated EBITDA (or, if Consolidated EBITDA is negative, minus the amount by which Consolidated EBITDA is less than zero) less 1.5 times Consolidated Interest Expense, in each case accrued on a cumulative basis during the period (taken as one accounting period) beginning on the first day of the fiscal quarter immediately following the Closing Date and ending on the last day of the last fiscal quarter preceding the Transaction Date for which reports have been filed with the Commission or provided to the Trustee pursuant to Section 4.16 plus (2) the aggregate Net Cash Proceeds received by the Company after the Closing Date from the issuance and sale permitted by this Indenture of its Capital Stock (other than Disqualified Stock) to a purchasePerson who is not a Subsidiary of the Company, including an issuance or sale permitted by this Indenture of Indebtedness of the Company for cash subsequent to the Closing Date upon the conversion of such Indebtedness into Capital Stock (other than Disqualified Stock) of the Company, or from the issuance to a Person who is not a Subsidiary of the Company of any options, warrants or other rights to acquire Capital Stock of the Company (in each case, exclusive of any Disqualified Stock or any options, warrants or other rights that are redeemable at the option of the holder, or are required to be redeemed, prior to the Stated Maturity of the Notes), in each case except to the extent such Net Cash Proceeds are used to Incur Indebtedness pursuant to clause (viii) of the second paragraph of Section 4.03(a), plus (3) an amount equal to the net reduction in Investments (other than reductions in Permitted Investments) in any Person resulting from payments of interest on Indebtedness, dividends, distributions, repayments of loans or advances, or other transfers of assets, in each case to the Company or any Restricted Subsidiary or from the Net Cash Proceeds from the sale of any such Investment (except, in each case, to the extent any such payment or proceeds is included in the calculation of Adjusted Consolidated Net Income), or from redesignations of Unrestricted Subsidiaries as Restricted Subsidiaries (valued in each case as provided in the definition of "Investments"), not to exceed, in each case, the amount of Investments previously made by the Company or any Restricted Subsidiary in such Person or Unrestricted Subsidiary. The foregoing provision shall not be violated by reason of: (i) the payment of any dividend within 60 days after the date of declaration thereof if, at such date of declaration, such payment would comply with the foregoing paragraph; (ii) the redemption, repurchase, redemption, defeasance or other acquisition or retirement for value of Indebtedness that is subordinated in anticipation right of satisfying a sinking fund obligationpayment to the Notes, principal installment including premium, if any, and accrued and unpaid interest, with the proceeds of, or final maturityin exchange for, in each case due within one year Indebtedness Incurred under clause (iii) of the date second paragraph of Section 4.03(a); (iii) the repurchase, redemption or other acquisition of Capital Stock of the Company or an Unrestricted Subsidiary (or options, warrants or other rights to acquire such purchaseCapital Stock) in exchange for, or out of the proceeds of a substantially concurrent offering of, shares of Capital Stock (other than Disqualified Stock) of the Company (or options, warrants or other rights to acquire such Capital Stock); (iv) the making of any principal payment or the repurchase, redemption, retirement, defeasance or other acquisition or retirement)for value of Indebtedness of the Company which is subordinated in right of payment to the Notes in exchange for, or (iv) make any Investment out of the proceeds of a substantially concurrent offering of shares of, the Capital Stock (other than a Permitted InvestmentDisqualified Stock) in any Person of the Company (any or options, warrants or other rights to acquire such dividend, distribution, purchase, repurchase, redemption, defeasance, other acquisition Capital Stock); (v) payments or retirement or Investment being herein referred distributions to as a “Restricted Payment”), if at the time the Borrower or such Restricted Subsidiary makes such Restricted Payment after giving effect thereto:dissenting

Limitation on Restricted Payments. (a) The Borrower RAS shall not, and shall not permit any of its Restricted SubsidiarySubsidiaries, directly or indirectly, to (i) declare or pay any dividend or make any distribution on or in respect of its Capital Stock (including any such payment in connection with any merger or consolidation to which the Borrower is a partyinvolving RAS or any of its Restricted Subsidiaries) except (xA) dividends or distributions payable solely in its Capital Stock (other than Disqualified Stock) or in options, warrants or other rights to purchase such Capital Stock and (yB) dividends or distributions payable to RAS or a Restricted Subsidiary of RAS which holds any equity interest in the Borrower or any paying Restricted Subsidiary (and, in and if the case of any such Restricted Subsidiary making such paying the dividend or distributionmaking the distribution is not a Wholly-Owned Subsidiary, to its other holders of its Capital Stock on no more than a pro rata basis, measured by value), (ii) purchase, redeem, retire or otherwise acquire for value any Capital Stock of the Borrower RAS held by Persons other than the Borrower a Wholly-Owned Subsidiary of RAS or any Capital Stock of a Restricted Subsidiary of RAS held by any Affiliate of RAS, other than a Wholly-Owned Subsidiary (in either case, other than in exchange for its Capital Stock (other than any acquisition of Capital Stock deemed to occur upon the exercise of options if such Capital Stock represents a portion of the exercise price thereofDisqualified Stock)), (iii) voluntarily purchase, repurchase, redeem, defease or otherwise voluntarily acquire or retire for value, prior to scheduled maturity, scheduled repayment or scheduled sinking fund payment, any Junior Debt (other than a purchase, repurchase, redemption, defeasance or other acquisition or retirement for value in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case due within one year of the date of such purchase, repurchase, redemption, defeasance or other acquisition or retirement), Subordinated Obligations or (iv) make any Investment (other than a Permitted Investment) in any Person (any such dividend, distribution, purchase, redemption, repurchase, redemption, defeasance, other acquisition or acquisition, retirement or Investment as described in preceding clauses (i) through (iv) being herein referred to as a “"Restricted Payment”"), ; if at the time the Borrower Partnership or such Restricted Subsidiary makes such Restricted Payment: (1) a Default shall have occurred and be continuing (or would result therefrom); or (2) RAS is not able to incur an additional $1.00 of Indebtedness pursuant to paragraph (a) under Section 4.09; or (3) the aggregate amount of such Restricted Payment and all other Restricted Payments declared or made subsequent to the Issue Date would exceed the sum of (A) 50% of the Consolidated Net Income accrued during the period (treated as one accounting period) from the first day of the fiscal quarter beginning on or after giving effect thereto:the Issue Date to the end of the most recent fiscal quarter ending prior to the date of such Restricted Payment as to which financial results are available (but in no event ending more than 135 days prior to the date of such Restricted Payment) (or, in case such Consolidated Net Income shall be a deficit, minus 100% of such deficit); (B) the aggregate net proceeds received by RAS from the issue or sale of its Capital Stock (other than Disqualified Stock) or other capital contributions subsequent to the Issue Date (other than net proceeds received from an issuance or sale of such Capital Stock to (x) a Subsidiary of RAS, (y) an employee stock ownership plan or similar trust or (z) management employees of RAS or any Subsidiary of RAS (other than sales of Capital Stock (other than Disqualified Stock) to management employees of RAS pursuant to bona fide employee stock option plans of RAS);

Limitation on Restricted Payments. (a) --------------------------------- The Borrower Company shall not, and shall not permit any Restricted Subsidiary, directly or indirectly, to (i) declare or pay any dividend or make any distribution on or in respect of its Capital Stock (including any such payment in connection with any merger or consolidation to which involving the Borrower is a partyCompany) except (x) dividends or distributions payable solely in its Capital Stock (other than Disqualified Stock) or in options, warrants or other rights to purchase such Capital Stock and (y) except dividends or distributions payable to the Borrower Company or any another Restricted Subsidiary (and, in the case of any if such Restricted Subsidiary making such dividend or distributionis not a Wholly owned Subsidiary, to its other holders of its Capital Stock shareholders on no more than a pro rata basisbasis or, measured with respect solely to each of the Co-Venture Partnerships, or their successors, in such proportion and in such order of priority as may be provided for in the respective agreements in effect from time to time between the Company (or the applicable Co-Venture Subsidiary) and the limited partner or partners of such Co- Venture Partnership relating to the theme park owned as of the Issue Date by valuethe applicable Co-Venture Partnership), (ii) purchase, redeem, retire or otherwise acquire for value any Capital Stock of the Borrower Company or any Restricted Subsidiary held by Persons other than the Borrower Company or a another Restricted Subsidiary (other than any acquisition of Capital Stock deemed to occur upon the exercise of options if such Capital Stock represents a portion of the exercise price thereof)Subsidiary, (iii) voluntarily purchase, repurchase, redeem, defease or otherwise voluntarily acquire or retire for value, prior to scheduled maturity, scheduled maturity,.scheduled repayment or scheduled sinking fund payment, payment any Junior Debt Subordinated Obligations (other than a the purchase, repurchase, redemption, defeasance repurchase or other acquisition or retirement for value of Subordinated Obligations purchased in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case due within with'-@n one year of the date of such purchase, repurchase, redemption, defeasance or other acquisition or retirement), acquisition) or (iv) make any Investment (other than a Permitted Investment) in any Person (any such dividend, distribution, purchase, redemption, repurchase, redemption, defeasance, other acquisition or acquisition, retirement or Investment being herein referred to as a “"Restricted Payment”), ") if at the time the Borrower Company or such Restricted Subsidiary makes such Restricted Payment after giving effect theretoPayment:

Limitation on Restricted Payments. (a) The Borrower shall not, and shall not permit any Restricted Subsidiary, directly or indirectly, to (i) declare Declare or pay any dividend (other than dividends payable solely in common stock of the Person making such dividend) on, or make any distribution payment on account of, or in respect of its Capital Stock (including any such payment in connection with any merger or consolidation to which the Borrower is set apart assets for a party) except (x) dividends or distributions payable solely in its Capital Stock (other than Disqualified Stock) and (y) dividends or distributions payable to the Borrower or any Restricted Subsidiary (and, in the case of any such Restricted Subsidiary making such dividend or distribution, to other holders of its Capital Stock on no more than a pro rata basis, measured by value), (ii) purchase, redeem, retire or otherwise acquire for value any Capital Stock of the Borrower held by Persons other than the Borrower or a Restricted Subsidiary (other than any acquisition of Capital Stock deemed to occur upon the exercise of options if such Capital Stock represents a portion of the exercise price thereof), (iii) voluntarily purchase, repurchase, redeem, defease or otherwise voluntarily acquire or retire for value, prior to scheduled maturity, scheduled repayment or scheduled sinking fund payment, any Junior Debt (other than a purchase, repurchase, redemption, defeasance or other acquisition or retirement for value in anticipation of satisfying a sinking analogous fund obligationfor, principal installment or final maturity, in each case due within one year of the date of such purchase, repurchase, redemption, defeasance or other acquisition or retirement), or (iv) make any Investment (other than a Permitted Investment) in any Person (any such dividend, distribution, purchase, repurchase, redemption, defeasance, retirement or other acquisition of, any shares of any class of Capital Stock (including but not limited to in respect of any preferred Capital Stock outstanding or retirement or Investment being herein referred to as a “Restricted Payment”), if at dividends accumulated thereon on the time Closing Date) of the Borrower or any of its Subsidiaries or any warrants or options to purchase any such Restricted Subsidiary makes such Restricted Payment Capital Stock or any of the Convertible Subordinated Debentures, 1997 Convertible Subordinated Notes, the Put Facility or the Senior Subordinated Notes, whether now or hereafter outstanding, or make any other distribution in respect thereof or purchase any thereof, either directly or indirectly, whether in cash or property or in obligations of the Borrower or any Subsidiary, except that the Borrower (a) may make open market purchases of its outstanding common stock in an aggregate amount during the term of this Agreement not to exceed $10,000,000, after the occurrence of the Minimum Equity Event, (b) may (i) make scheduled payments of interest in respect of the Convertible Subordinated Debentures, the 1997 Convertible Subordinated Notes, the Put Facility and the Senior Subordinated Notes and may make prepayments of the Put Facility to the extent provided in this Agreement, and (ii) if permitted by Section 7.10, repurchase, redeem or defease the Convertible Subordinated Debentures after at least 90% of the Convertible Subordinated Debentures have been converted or repurchase, redeem or defease the 1997 Convertible Subordinated Notes after at least 90% of the 1997 Convertible Subordinated Notes have been converted and (c) may make cash payments required pursuant to Sections 11.1 and 11.3 of the Indenture in connection with conversions of the Convertible Subordinated Debentures or Section 10.3 of the 1997 Indenture in connection with conversions of the 1997 Convertible Subordinated Notes, provided that (i) no more than 40% of the aggregate consideration to any holder of the 1997 Convertible Subordinated Notes upon conversion thereof may be in cash, (ii) after giving effect thereto:to such payment and conversion, no Default or Event of Default shall be continuing and (iii) after giving pro forma effect to such payment and conversion as if it had occurred on the last day of the most recently ended fiscal quarter, the Consolidated Leverage Ratio would not exceed 2.50 to 1.00. Notwithstanding the foregoing, any Subsidiary of the Borrower may pay dividends and other distributions to the Borrower and Servicios may pay dividends to its shareholders.

Limitation on Restricted Payments. (a) The Borrower shall Company will not, and shall will not permit any Restricted Subsidiary, directly or indirectly, to (i) declare or pay any dividend or make any distribution on or in with respect of to its Capital Stock (including any such payment in connection with any merger or consolidation to which the Borrower is a party) except other than (x) dividends or distributions payable solely in shares of its Capital Stock (other than Disqualified Stock) or in options, warrants or other rights to acquire shares of such Capital Stock and (y) pro rata dividends or distributions payable to on Common Stock of Restricted Subsidiaries held by other stockholders) held by Persons other than the Borrower Company or any Restricted Subsidiary (and, in the case of any such Restricted Subsidiary making such dividend or distribution, to other holders of its Capital Stock on no more than a pro rata basis, measured by value)Restricted Subsidiaries, (ii) purchase, redeem, retire or otherwise acquire for value any shares of Capital Stock of (A) the Company or an Unrestricted Subsidiary (including options, warrants or other rights to acquire such shares of Capital Stock) held by any Person or (B) a Restricted Subsidiary (including options, warrants or other rights to acquire such shares of Capital Stock) held by any Affiliate of the Company (other than a Wholly Owned Restricted Subsidiary) or any holder (or any Affiliate of such holder) of 5% or more of the Capital Stock of the Borrower held by Persons other than the Borrower or a Restricted Subsidiary (other than any acquisition of Capital Stock deemed to occur upon the exercise of options if such Capital Stock represents a portion of the exercise price thereof)Company, (iii) voluntarily purchasemake any voluntary or optional principal payment, or voluntary or optional redemption, repurchase, redeemdefeasance, defease or otherwise voluntarily acquire or retire for value, prior to scheduled maturity, scheduled repayment or scheduled sinking fund payment, any Junior Debt (other than a purchase, repurchase, redemption, defeasance or other acquisition or retirement for value value, prior to the scheduled maturity, of Indebtedness of the Company that is subordinated in right of payment to the Notes (other than the purchase, repurchase or the acquisition of Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each any case due within one year of the date of acquisition) or (iv) make any Investment, other than a Permitted Investment, in any Person (such purchasepayments or any other actions described in clauses (i) through (iv) being collectively "Restricted Payments") if, at 42 36 the time of, and after giving effect to, the proposed Restricted Payment: (A) a Default or Event of Default shall have occurred and be continuing, (B) except with respect to Investments, the Company could not Incur at least $1.00 of Indebtedness under the first paragraph of Section 4.02 or (C) the aggregate amount of all Restricted Payments (the amount, if other than in cash, to be determined in good faith by the Board of Directors, whose determination shall be conclusive and evidenced by a Board Resolution) made after the Closing Date, plus the outstanding amount of all Permitted Investments permitted pursuant to the second proviso of clause (i) of the definition of Permitted Investment, shall exceed the sum of (1) 50% of the aggregate amount of the Adjusted Consolidated Net Income (or, if the Adjusted Consolidated Net Income is a loss, minus 100% of the amount of such loss) (determined by excluding income resulting from transfers of assets by the Company or a Restricted Subsidiary to an Unrestricted Subsidiary) accrued on a cumulative basis during the period (taken as one accounting period) beginning on the first day of the fiscal quarter immediately following the Closing Date and ending on the last day of the last fiscal quarter preceding the Transaction Date for which reports have been filed pursuant to Section 4.17 plus (2) the aggregate Net Cash Proceeds received by the Company after the Closing Date from the issuance and sale permitted by this Indenture of Capital Stock of the Company (other than Disqualified Stock), to a Person who is not a Subsidiary of the Company or from the issuance to a Person who is not a Subsidiary of the Company of any options, warrants or other rights to acquire Capital Stock of the Company (in each case, exclusive of any Disqualified Stock or any options, warrants or other rights that are redeemable at the option of the holder, or are required to be redeemed, prior to the Stated Maturity of the Notes) plus (3) an amount equal to the net reduction in Investments (other than reductions in Permitted Investments except for Permitted Investments permitted pursuant to the second proviso of clause (i) in the definition of Permitted Investment) in any Person resulting from payments of interest on Indebtedness, dividends, repayments of loans or advances, or other transfers of assets, in each case to the Company or any Restricted Subsidiary or from the Net Cash Proceeds from the sale of any such Investment (except, in each case, to the extent any such payment or proceeds are included in the calculation of Adjusted Consolidated Net Income), or from redesignations of Unrestricted Subsidiaries as Restricted Subsidiaries (valued in each case as provided in the definition of "Investments"), not to exceed, in each case, the amount of Investments previously made by the Company or any Restricted Subsidiary in such Person or Unrestricted Subsidiary. The foregoing provision shall not be violated by reason of: (i) the payment of any dividend within 60 days after the date of declaration thereof if, at said date of declaration, such payment would comply with the foregoing paragraph; (ii) the redemption, repurchase, redemption, defeasance or other acquisition or retirement)retirement for value of Indebtedness that is subordinated in right of payment to the Notes, including premium, if any, and accrued and unpaid interest, with the proceeds of, or in exchange for, Indebtedness Incurred under clause (iviii) make any Investment of the second paragraph of part (other than a Permitted Investmenta) in any Person of Section 4.02; (any such dividend, distribution, purchase, iii) the repurchase, redemption, defeasance, redemption or other acquisition of Capital Stock of the Company (or retirement options, warrants or Investment being herein referred other rights to as a “Restricted Payment”), if at the time the Borrower or such Restricted Subsidiary makes such Restricted Payment after giving effect thereto:43 37

Limitation on Restricted Payments. (a) The Borrower shall Company will not, and shall will not permit any Restricted SubsidiarySubsidiary to, directly or indirectly, to (i) declare or pay any dividend or make any distribution on or in respect of its Capital Stock (including any such payment in connection with any merger or consolidation to which the Borrower is a party) except other than (xA) dividends or distributions payable solely in shares of its Capital Stock (other than Disqualified Redeemable Stock) or in options, warrants or other rights to acquire shares of such Capital Stock and (yB) pro rata dividends or distributions payable to on Common Stock of Restricted Subsidiaries held by minority stockholders, provided that such dividends do not in the Borrower aggregate exceed the minority stockholders' pro rata share of such Restricted Subsidiaries' net income from the first day of the fiscal quarter beginning immediately following the Closing Date) held by Persons other than the Company or any Restricted Subsidiary (and, in the case of any such Restricted Subsidiary making such dividend or distribution, to other holders of its Capital Stock on no more than a pro rata basis, measured by value)Wholly Owned Restricted Subsidiaries, (ii) purchase, redeem, retire or otherwise acquire for value any shares of Capital Stock of (x) the Company or an Unrestricted Subsidiary (including options, warrants or other rights to acquire such shares of Capital Stock) held by any Person or (y) a Restricted Subsidiary (including options, warrants or other rights to acquire such shares of Capital Stock) held by any Affiliate of the Company (other than a Wholly Owned Restricted Subsidiary) or any holder (or any Affiliate of such holder) of 5% or more of the Capital Stock of the Borrower held by Persons other than the Borrower or a Restricted Subsidiary (other than any acquisition of Capital Stock deemed to occur upon the exercise of options if such Capital Stock represents a portion of the exercise price thereof)Company, (iii) voluntarily purchasemake any voluntary or optional principal payment, or voluntary or optional redemption, repurchase, redeemdefeasance, defease or otherwise voluntarily acquire or retire for value, prior to scheduled maturity, scheduled repayment or scheduled sinking fund payment, any Junior Debt (other than a purchase, repurchase, redemption, defeasance or other acquisition or retirement for value value, of Indebtedness of the Company that is subordinated in right -38- 42 of payment to the Notes (other than the purchase, repurchase or the acquisition of Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each any case due within one year of the date of such purchase, repurchase, redemption, defeasance or other acquisition or retirement), acquisition) or (iv) make any Investment (Investment, other than a Permitted Investment, in any Person (such payments or any other actions described in clauses (i) through (iv) of this paragraph (a) being collectively "Restricted Payments") if, at the time of, and after giving effect to, the proposed Restricted Payment: (A) a Default or Event of Default shall have occurred and be continuing, (B) the Company could not Incur at least $1.00 of Indebtedness under Section 4.03(a) or (C) the aggregate amount of all Restricted Payments (the amount, if other than in cash, to be determined in good faith by the Board of Directors, whose determination shall be conclusive and evidenced by a Board Resolution) made after the Closing Date shall exceed the sum of (1) 50% of the aggregate amount of the Adjusted Consolidated Net Income (or, if the Adjusted Consolidated Net Income is a loss, minus 100% of the amount of such loss) (determined by excluding income resulting from transfers of assets by the Company or a Restricted Subsidiary to an Unrestricted Subsidiary) accrued on a cumulative basis during the period (taken as one accounting period) beginning on the first day of the fiscal quarter immediately following the Closing Date and ending on the last day of the last fiscal quarter preceding the Transaction Date for which reports have been filed pursuant to Section 4.19, (2) the aggregate Net Cash Proceeds received by the Company after the Closing Date from the issuance and sale permitted by this Indenture of its Capital Stock (other than Redeemable Stock) to a Person who is not a Subsidiary of the Company, including an issuance or sale permitted by this Indenture of Indebtedness of the Company for cash subsequent to the Closing Date upon the conversion of such Indebtedness into Capital Stock (other than Redeemable Stock) of the Company, or from the issuance to a Person who is not a Subsidiary of the Company of any options, warrants or other rights to acquire Capital Stock of the Company (in each case, exclusive of any Redeemable Stock or any options, warrants or other rights that are redeemable at the option of the holder, or are required to be redeemed, prior to the Stated Maturity of the Notes), (3) an amount equal to the net reduction in Investments (other than reductions in Permitted Investments) in any Person (resulting from payments of interest on Indebtedness, dividends, repayments of loans or advances, or other transfers of assets, in each case to the Company or any Restricted Subsidiary or from the Net Cash Proceeds from the sale of any such dividendInvestment (except, distributionin each case, purchase, repurchase, redemption, defeasance, other acquisition to the extent any such payment or retirement or Investment being herein referred to as a “Restricted Payment”proceeds are included in the calculation of Adjusted Consolidated Net Income), if at or from redesignations of Unrestricted Subsidiaries as Restricted Subsidiaries (valued in each case as provided in the time definition of "Investments"), not to exceed, in each case, the Borrower amount of Investments previously made by the Company or such any Restricted Subsidiary makes in such Restricted Payment after giving effect thereto:Person or Unrestricted Subsidiary and (4) $25 million.

Limitation on Restricted Payments. (a) The Borrower shall not, Company and shall any Guarantor or Restricted Subsidiary will not permit any Restricted Subsidiary, directly or indirectly, to without the prior written consent of the Holders of a Minimum Principal Amount, (ia) declare or pay any dividend or make any payment, distribution on or return of capital (whether in cash, securities or other property) with respect of its to any Capital Stock (including of the Company, any such payment in connection with any merger or consolidation to which the Borrower is a party) except (x) dividends or distributions payable solely in its Capital Stock (other than Disqualified Stock) and (y) dividends or distributions payable to the Borrower Guarantor or any Restricted Subsidiary (andSubsidiary, in including any sinking fund or similar deposit, on account of the case purchase, redemption, retirement, defeasance, acquisition, cancellation or termination of any such Restricted Subsidiary making such dividend Capital Stock, or distribution, on account of any return of capital to other the holders of its any such Capital Stock on no more than a pro rata basisStock, measured by value), or (iib) purchase, redeem, retire or defease, otherwise acquire for value any Capital Stock of the Borrower held by Persons other than the Borrower or a Restricted Subsidiary (other than any acquisition of Capital Stock deemed to occur upon the exercise of options if such Capital Stock represents a portion of the exercise price thereof), (iii) voluntarily purchase, repurchase, redeem, defease or otherwise voluntarily acquire or retire for value, prior to scheduled maturity, scheduled repayment or scheduled sinking fund paymentmake any payment with respect to, any Junior Debt Subordinated Indebtedness (it being understood that regularly scheduled interest payments with respect to Subordinated Indebtedness (other than a purchaseIndebtedness under the SIS Documents) shall be permitted so long as not prohibited by the subordination terms thereof and no Default or Event of Default has occurred and is continuing) or Capital Stock of the Company or any Guarantor or Restricted Subsidiary held by Persons (such payments as described in parts (a) and (b) hereof, repurchase“Restricted Payments”); provided that (i) repurchases of stock from former employees, redemptionofficers, defeasance directors, consultants or other acquisition persons performing services for the Company or retirement for value any Guarantor or Restricted Subsidiary pursuant to the terms of stock repurchase plans, employee restricted stock agreements or similar agreements under which the Company or any Guarantor or Restricted Subsidiary has the option to repurchase such shares upon the occurrence of certain events, such as the termination of employment or service, or pursuant to a right of first refusal in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case due within one year an amount not to exceed 5% of the date Capital Stock of such purchase, repurchase, redemption, defeasance the Company or other acquisition Guarantor or retirement), or (iv) make any Investment (other than a Permitted Investment) Restricted Subsidiary then-outstanding in any Person fiscal year, (any such dividend, distribution, purchase, repurchase, redemption, defeasance, other acquisition or retirement or Investment being herein referred ii) Subsidiaries of the Company may declare and pay dividends ratably with respect to as a “Restricted Payment”), if at their Capital Stock and (iii) the time the Borrower or such Restricted Subsidiary makes such Restricted Payment after giving effect thereto:Company may declare and pay dividends to Parent. Section 4.17

Limitation on Restricted Payments. (a) The Borrower shall Company will not, and shall will not permit any Restricted Subsidiary, directly or indirectly, to (i) declare or pay any dividend or make any distribution on or in respect any class of its Capital Stock (including any such payment in connection with any merger or consolidation to which the Borrower is a party) except (x) other than dividends or distributions payable solely in shares of its or such Restricted Subsidiary's Capital Stock (other than Disqualified Redeemable Stock) and (yof the same class as such Capital Stock or in options, warrants or other rights to acquire shares of such Capital Stock) dividends or distributions payable to held by Persons other than the Borrower Company or any Restricted Subsidiary (and, in the case of any such Restricted Subsidiary making such dividend or distribution, to other holders of its Capital Stock on no more than a pro rata basis, measured by value)Restricted Subsidiaries which are Wholly Owned Subsidiaries, (ii) purchase, redeem, retire or otherwise acquire for value any shares of Capital Stock of the Borrower Company, any Restricted Subsidiary or any Unrestricted Subsidiary (including options, warrants or other rights to acquire any shares of such Capital Stock) held by Persons other than the Borrower Company or a another Restricted Subsidiary (other than any acquisition of Capital Stock deemed to occur upon the exercise of options if such Capital Stock represents that is a portion of the exercise price thereof)Wholly Owned Subsidiary, (iii) voluntarily purchasemake any voluntary or optional principal payment, or voluntary or optional redemption, repurchase, redeem, defease or otherwise voluntarily acquire or retire for value, prior to scheduled maturity, scheduled repayment or scheduled sinking fund payment, any Junior Debt (other than a purchase, repurchase, redemption, defeasance or other acquisition or retirement for value in anticipation value, of satisfying a sinking fund obligation, principal installment or final maturity, in each case due within one year Indebtedness of the date Company that is expressly subordinated in right of such purchase, repurchase, redemption, defeasance or other acquisition or retirement)payment to the Securities, or (iv) make any Investment in any Affiliate (other than the Company or a Permitted InvestmentRestricted Subsidiary that is a Wholly Owned Subsidiary) (such payments or any other actions described in any Person clauses (any such dividend, distribution, purchase, repurchase, redemption, defeasance, other acquisition or retirement or Investment i) through (iv) being herein referred to as a “collectively "Restricted Payment”), if Payments") unless at the time the Borrower or such Restricted Subsidiary makes such Restricted Payment of and after giving effect theretoto the proposed Restricted Payment: (a) no Default or Event of Default shall have occurred and be continuing, (b) the Company could Incur at least $1.00 of Indebtedness pursuant to clause (i) of Section 3.03(a) and (c) the aggregate amount expended for all Restricted Payments (the amount so expended, if other than in cash, to be determined in good faith by the Board of Directors and evidenced by a Board Resolution) after July 28, 1993 (together with any amounts paid after such date pursuant to clauses (i), (iv) and (vi) in the following paragraph) shall not exceed the sum of (1) 50% of the aggregate amount of Adjusted Consolidated Net Income (or, if the Adjusted Consolidated Net Income is a loss, minus 100% of such amount) of the Company accrued on a cumulative basis during the period (taken as one accounting period) beginning on August 15, 1993 and ending on the last day of the last fiscal quarter preceding the Transaction Date plus (2) the aggregate net proceeds (including the fair market value of noncash proceeds as determined 44 39 in good faith by the Board of Directors, whose determination shall be evidenced by a Board Resolution) received by the Company from the issuance and sale of its Capital Stock (other than Redeemable Stock) to any Person other than a Subsidiary of the Company, including an issuance or sale for cash or other property upon the conversion of any Indebtedness of the Company subsequent to July 28, 1993, or from the issuance of any options, warrants or other rights to acquire Capital Stock of the Company (in each case, excluding any Redeemable Stock or any options, warrants or other rights that are redeemable at the option of the holder, or are required to be redeemed, prior to the Stated Maturity of the principal of the Securities) plus (3) an amount equal to the net reduction in Investments in Unrestricted Subsidiaries resulting from payments of principal of or interest on Indebtedness, dividends or other transfers of assets, in each case to the Company or any Restricted Subsidiary from any Unrestricted Subsidiary, or from the redesignation of any Unrestricted Subsidiary as a Restricted Subsidiary (valued in each case as provided in the definition of "Investments"), not to exceed, in the case of any Unrestricted Subsidiary, the amount of Investments previously made by the Company or any Restricted Subsidiary in such Unrestricted Subsidiary plus (4) $10 million. The foregoing provision shall not be violated by reason of:

Limitation on Restricted Payments. (a) The Borrower Company shall --------------------------------- not, and shall not permit any Restricted Subsidiary, directly or indirectly, to (i) declare or pay any dividend or make any distribution on or in respect of its Capital Stock (including any such payment in connection with any merger or consolidation involving the Company or any Subsidiary of the Company) to which the Borrower is a party) holders of its Capital Stock in their capacity as such, except (x) dividends or distributions payable solely in its Capital Stock (other than Disqualified Stock or, in the case of a Subsidiary, Preferred Stock) and (y) dividends or distributions payable to the Borrower Company or any a Restricted Subsidiary (and, in the case of any if such Restricted Subsidiary making such dividend has shareholders or distributionequity owners other than the Company or other Restricted Subsidiaries, to its other holders of its Capital Stock shareholders or equity owners on no more than a pro rata basis, measured by value), (ii) purchase, repurchase, redeem, retire or otherwise acquire for value any Capital Stock of the Borrower Company or any Restricted Subsidiary held by Persons other than the Borrower Company or a Restricted Subsidiary (other than any acquisition of Capital Stock deemed to occur upon the exercise of options if such Capital Stock represents a portion of the exercise price thereof)Subsidiary, (iii) voluntarily purchase, repurchase, redeem, retire, defease or otherwise voluntarily acquire or retire for value, prior to scheduled maturity, scheduled repayment or scheduled sinking fund payment, payment any Junior Debt Subordinated Obligations (other than a the purchase, repurchase, redemption, retirement, defeasance or other acquisition or retirement for value of Subordinated Obligations acquired in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case due within one year of the date of such purchase, repurchase, redemption, defeasance or other acquisition or retirement), acquisition) or (iv) make any Investment (other than a Permitted Investment) in any Person Person, (any such dividend, distribution, payment, purchase, redemption, repurchase, redemption, defeasance, other acquisition or acquisition, retirement or Investment (other than the exceptions thereto listed in Section 4.04(b)) being herein referred to as a “"Restricted Payment”), ") if at the time the Borrower Company or such Restricted Subsidiary makes such Restricted Payment after giving effect theretoPayment:

Limitation on Restricted Payments. (a) The Borrower shall Company will not, and shall will not permit any Restricted Subsidiary, directly or indirectly, to (i) declare or pay any dividend or make any distribution on or in with respect of to its Capital Stock (including any such payment in connection with any merger or consolidation to which the Borrower is a party) except other than (x) dividends or distributions payable solely in shares of its Capital Stock (other than Disqualified Stock) or in options, warrants or other rights to 26 acquire shares of such Capital Stock and (y) pro rata dividends or distributions payable to on Common Stock of Restricted Subsidiaries held by minority stockholders, provided that such dividends do not in the Borrower aggregate exceed the minority stockholders' pro rata share of such Restricted Subsidiaries' net income from the first day of the fiscal quarter beginning immediately following the Closing Date) held by Persons other than the Company or any Restricted Subsidiary (and, in the case of any such Restricted Subsidiary making such dividend or distribution, to other holders of its Capital Stock on no more than a pro rata basis, measured by value)Restricted Subsidiaries, (ii) purchase, redeem, retire or otherwise acquire for value any shares of Capital Stock of the Borrower Company, any Subsidiary Guarantor or an Unrestricted Subsidiary (including options, warrants or other rights to acquire such shares of Capital Stock) held by Persons other than the Borrower or a Restricted Subsidiary (other than any acquisition of Capital Stock deemed to occur upon the exercise of options if such Capital Stock represents a portion of the exercise price thereof)Company and its Wholly Owned Subsidiaries, (iii) voluntarily purchasemake any voluntary or optional principal payment, or voluntary or optional redemption, repurchase, redeemdefeasance, defease or otherwise voluntarily acquire or retire for value, prior to scheduled maturity, scheduled repayment or scheduled sinking fund payment, any Junior Debt (other than a purchase, repurchase, redemption, defeasance or other acquisition or retirement for value value, of Indebtedness of the Company that is subordinated in right of payment to the Notes or of any Subsidiary Guarantor that is subordinated to the Subsidiary Guaranties (other than, in each case, the purchase, repurchase or the acquisition of Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each any case due within one year of the date of such purchase, repurchase, redemption, defeasance or other acquisition or retirement), acquisition) or (iv) make any Investment (Investment, other than a Permitted Investment, in any Person (such payments or any other actions described in clauses (i) through (iv) being collectively "RESTRICTED PAYMENTS") if, at the time of, and after giving effect to, the proposed Restricted Payment: (A) an Event of Default shall have occurred and be continuing, (B) except with respect to Investments in Restricted Subsidiaries and dividends on the Common Stock of any Subsidiary Guarantor paid to the Company or any Restricted Subsidiary, the Company could not Incur at least $1.00 of Indebtedness under the first sentence of paragraph (a) of Section 4.03 or (C) the aggregate amount of all Restricted Payments (the amount, if other than in cash, to be determined in good faith by the Board of Directors, whose determination shall be conclusive and evidenced by a Board Resolution) made after the Closing Date (after giving pro forma effect to the proposed Restricted Payment) shall exceed the sum of (1) 50% of the aggregate amount of the Adjusted Consolidated Net Income (or, if the Adjusted Consolidated Net Income is a loss, minus 100% of the amount of such loss) (determined by excluding income resulting from transfers of assets by the Company or a Restricted Subsidiary to an Unrestricted Subsidiary) accrued on a cumulative basis during the period (taken as one accounting period) beginning on the first day of the fiscal quarter immediately following the Closing Date and ending on the last day of the last fiscal quarter preceding the Transaction Date for which reports have been filed pursuant to Section 4.18 plus (2) the aggregate amount of Designated Equity Proceeds received by the Company after the Closing Date, except to the extent such amount of Designated Equity Proceeds is used as a basis to Incur Indebtedness pursuant to clause (i) or (viii) of paragraph (a) under Section 4.03, plus (3) an amount equal to the net reduction in Investments (other than reductions in Permitted Investments) in any Person (resulting from payments of interest on Indebtedness, dividends, repayments of loans or advances, or other transfers of assets, in each case to the Company or any Restricted Subsidiary or from the Net Cash Proceeds from the sale of any such dividendInvestment (except, distributionin each case, purchase, repurchase, redemption, defeasance, other acquisition to the extent any such payment or retirement or Investment being herein referred to as a “Restricted Payment”proceeds are included in the calculation of Adjusted Consolidated Net Income), if at or from redesignations of Unrestricted Subsidiaries as Restricted Subsidiaries (valued in each case as provided in the time definition of "Investments"), not to exceed, in each case, the Borrower amount of Investments previously made by the Company or such any Restricted Subsidiary makes in such Restricted Payment after giving effect thereto:Person or Unrestricted Subsidiary.

Limitation on Restricted Payments. (a) The Borrower Company shall not, and shall not permit any Restricted Subsidiary, directly or indirectly, to (i) declare or pay any dividend or make any distribution on or in respect of its Capital Stock (including any such payment to its stockholders in connection with any merger or consolidation to which involving the Borrower is a partyCompany) except (xA) dividends or distributions payable solely in its Capital Stock (other than Disqualified Stock) and (yB) dividends or distributions payable to the Borrower Company or any Restricted Subsidiary (and, in the case of any if such Restricted Subsidiary making such dividend or distributionis not a Wholly Owned Subsidiary, to its other holders of its Capital Stock shareholders on no more than a pro rata basis, measured by value), (ii) purchase, redeem, retire or otherwise acquire for value any Capital Stock of the Borrower Company or any Restricted Subsidiary held by Persons other than the Borrower Company or a another Restricted Subsidiary (other than any acquisition of Capital Stock deemed to occur upon the exercise of options if such Capital Stock represents a portion of the exercise price thereof)Subsidiary, (iii) voluntarily purchase, repurchase, redeem, defease or otherwise voluntarily acquire or retire for value, prior to scheduled maturity, scheduled repayment or scheduled sinking fund payment, any Junior Debt Subordinated Obligations (other than a the purchase, repurchase, redemption, defeasance redemption or other acquisition or retirement for value of Subordinated Obligations in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case due within one year of the date of such purchase, repurchase, redemption, defeasance or other acquisition or retirement), acquisition) or (iv) make any Investment (other than a Permitted Investment) in any Person (any such dividend, distribution, purchase, redemption, repurchase, redemption, defeasance, other acquisition or acquisition, retirement or Investment being herein referred to as a “"Restricted Payment”), ") if at the time the Borrower Company or such Restricted Subsidiary makes such Restricted Payment: (A) a Default shall have occurred and be continuing (or would result therefrom); (B) the Company could not incur at least an additional $1.00 of Indebtedness under paragraph (a) of the covenant contained in Section 1010; or (C) the aggregate amount of such Restricted Payment after giving effect thereto:and all other Restricted Payments (the amount so expended, if other

Limitation on Restricted Payments. (a) [ADD: Intentionally Omitted.] [DELETE: The Borrower shall Company will not, and shall will not permit any Restricted SubsidiarySubsidiary to, directly or indirectly, to (i) declare or pay any dividend or make any distribution on or in respect of its Capital Stock (including any such payment in connection with any merger or consolidation to which the Borrower is a party) except (x) other than dividends or distributions payable solely in shares of its or such Subsidiary's Capital Stock (other than Disqualified Redeemable Stock) and (yof the same class held by such holders or in options, warrants or other rights to acquire such shares of Capital Stock) dividends held by Persons other than the Company or distributions payable to the Borrower or any another Restricted Subsidiary (and, in the case of any such Restricted Subsidiary making such dividend or distribution, to other holders of its Capital Stock on no more than a pro rata basis, measured by value)Subsidiary, (ii) purchase, redeem, retire or otherwise acquire for value any shares of Capital Stock of the Borrower Company, any Restricted Subsidiary or any Unrestricted Subsidiary (including options, warrants or other rights to acquire such shares of Capital Stock) held by Persons other than the Borrower Company or another Restricted Subsidiary, (iii) make any voluntary or optional principal payment, or voluntary or optional redemption, repurchase, defeasance, or other acquisition or retirement for value, of Indebtedness of the Company that is subordinated in right of payment to the Securities, or (iv) make any Investment in any Unrestricted Subsidiary (such payments or any other actions described in clauses (i) through (iv) being collectively "Restricted Payments") if, at the time of, and after giving effect to, the proposed Restricted Payment: (A) a Default or Event of Default shall have occurred and be continuing, (B) the Company could not Incur at least $1.00 of Indebtedness under the first paragraph of Section 3.03 or (C) the aggregate amount A-4 expended for all Restricted Payments (the amount so expended, if other than in cash, to be determined in good faith by the Board of Directors, whose determination shall be conclusive and evidenced by a Board Resolution) after the date of this Indenture shall exceed the sum of (1) 50% of the aggregate amount of the Adjusted Consolidated Net Income (or, if the Adjusted Consolidated Net Income is a loss, minus 100% of such amount) of the Company (determined by excluding income resulting from the transfers of assets received by the Company or a Restricted Subsidiary from an Unrestricted Subsidiary) accrued on a cumulative basis during the period (other than any acquisition taken as one accounting period) beginning on April 1, 1994 and ending on the last day of the last fiscal quarter preceding the Transaction Date plus (2) the aggregate net proceeds (including the fair market value of non-cash proceeds as determined in good faith by the Board of Directors, whose determination shall be conclusive and evidenced by a Board Resolution) received by the Company from the issuance and sale permitted by this Indenture of its Capital Stock deemed (not including Redeemable Stock) to occur a Person who is not a Subsidiary of the Company, including an issuance or sale permitted by this Indenture for cash or other property upon the exercise conversion of options if such any Indebtedness of the Company subsequent to the Closing Date, or from the issuance of any options, warrants or other rights to acquire Capital Stock represents a portion of the exercise price thereof)Company (in each case, (iii) voluntarily purchaseexclusive of any Redeemable Stock or any options, repurchasewarrants or other rights that are redeemable at the option of the holder, redeem, defease or otherwise voluntarily acquire or retire for valueare required to be redeemed, prior to scheduled maturitythe Stated Maturity of the Securities) plus (3) an amount equal to the net reduction in Investments in Unrestricted Subsidiaries resulting from payments of interest on Indebtedness, scheduled repayment dividends, repayments of loans or scheduled sinking fund paymentadvances, or other transfers of assets, in each case to the Company or any Junior Debt Restricted Subsidiary from Unrestricted Subsidiaries, or from redesignations of Unrestricted Subsidiaries as Restricted Subsidiaries (other than a purchasevalued in each case as provided in the definition of "Investments"), not to exceed in the case of any Unrestricted Subsidiary the amount of Investments previously made by the Company or any Restricted Subsidiary in such Unrestricted Subsidiary plus (4) $75 million. The foregoing provision shall not take into account, and shall not be violated by reason of: (i) the payment of any dividend within 60 days after the date of declaration thereof if, at such date of declaration, such payment would comply with the foregoing provision; (ii) the redemption, repurchase, redemption, defeasance or other acquisition or retirement for value of Indebtedness that is subordinated in anticipation right of satisfying a sinking fund obligationpayment to the Securities, principal installment including premium, if any, with the proceeds of Indebtedness Incurred under the first paragraph of Section 3.03 or final maturity, in each case due within one year clause (iv) or (x) of the date second paragraph of Section 3.03; (iii) the payment of dividends on the Capital Stock of the Company, following any issuance of the Capital Stock of the Company, of up to 6% per annum of the net proceeds received by the Company in such issuance of the Capital Stock of the Company; (iv) the repurchase of shares of, or options to purchase shares of, Common Stock of the Company or any of its Subsidiaries from employees, former employees, directors or former directors of the Company or any of its Subsidiaries (or permitted transferees of such employees, former employees, directors or former directors) pursuant to the terms of the form of agreements or plans (or amendments thereto) under which such Persons purchase or sell, or are granted the option to purchase or sell, shares of such Common Stock; (v) the repurchase, redemption or other acquisition of Capital Stock of the Company in exchange for, or out of the proceeds of a substantially concurrent offering of, shares of Capital Stock of the Company (other than Redeemable Stock); (vi) the acquisition of Indebtedness of the Company that is subordinated in right of payment to the Securities in exchange for, or out of the proceeds of a substantially concurrent offering of, shares of the Capital Stock of the Company (other than Redeemable Stock); (vii) payments or distributions pursuant to or in connection with a consolidation, merger or transfer of assets that complies with Section 4.01 of this Indenture; (viii) the purchase, redemption, acquisition, cancellation or other retirement for a nominal value per right (as determined in good faith by the Board of Directors) of any rights granted to all the holders of Common Stock of the Company pursuant to any shareholders' rights plan (i.e., a "poison pill") adopted for the purpose (determined in good faith by the Board of Directors) of protecting shareholders from unfair takeover tactics; provided that any such purchase, repurchase, redemption, defeasance acquisition, cancellation or other acquisition retirement A-5 Nothing contained in this Section 3.05 shall prevent the Company or retirement), any Restricted Subsidiary from (1) entering into any agreement permitting the incurrence of Liens otherwise permitted in Section 3.08 or (iv2) make restricting the sale or other disposition of property or assets of the Company or any Investment (other than a Permitted Investment) in of its Subsidiaries that secure Indebtedness of the Company or any Person (any such dividend, distribution, purchase, repurchase, redemption, defeasance, other acquisition or retirement or Investment being herein referred to as a “Restricted Payment”), if at the time the Borrower or such Restricted Subsidiary makes such Restricted Payment after giving effect thereto:of its Subsidiaries].

Limitation on Restricted Payments. (a) The Borrower Parent shall not, and shall not permit any Restricted SubsidiarySubsidiary to, directly or indirectly, to (i1) declare or pay any dividend or make any distribution on or in with respect of to its Capital Stock (including any such payment in connection with any merger or consolidation to which the Borrower is a party) except other than (x) dividends or distributions payable solely in shares of its Capital Stock (other than Disqualified Stock) or in options, warrants or other rights to acquire shares of such Capital Stock and (y) pro rata dividends or distributions payable to on common stock of Restricted Subsidiaries held by minority stockholders) held by Persons other than the Borrower Parent or any Restricted Subsidiary (and, in the case of any such Restricted Subsidiary making such dividend or distribution, to other holders of its Capital Stock on no more than a pro rata basis, measured by value)Restricted Subsidiaries, (ii2) purchase, call for redemption or redeem, retire or otherwise acquire for value any shares of Capital Stock (including options, warrants or other rights to acquire such shares of Capital Stock) of (A) the Borrower Parent, either Issuer or any Subsidiary Guarantor held by Persons other than the Borrower any Person or (B) a Restricted Subsidiary (other than an Issuer or a Subsidiary Guarantor) held by any acquisition of Capital Stock deemed to occur upon the exercise of options if such Capital Stock represents a portion Affiliate of the exercise price thereof), (iii) voluntarily purchase, repurchase, redeem, defease or otherwise voluntarily acquire or retire for value, prior to scheduled maturity, scheduled repayment or scheduled sinking fund payment, any Junior Debt Parent (other than a purchaseWholly Owned Restricted Subsidiary) or any holder (or any Affiliate of such holder) of 5% or more of the Capital Stock of the Parent, (3) make any voluntary or optional principal payment, or voluntary or optional redemption, repurchase, redemptiondefeasance, defeasance or other acquisition or retirement for value value, of Indebtedness of either Issuer that is subordinated in anticipation right of satisfying payment to the Securities or any Indebtedness of the Parent or a sinking fund obligation, principal installment or final maturity, Subsidiary Guarantor that is subordinated in right of payment to the relevant Note Guarantee (in each case due within one year of case, other than intercompany Indebtedness owed to the date of such purchaseParent, repurchase, redemption, defeasance either Issuer or other acquisition or retirement), any Subsidiary Guarantor) or (iv4) make any Investment (Investment, other than a Permitted Investment) , in any Person (such payments or any such dividend, distribution, purchase, repurchase, redemption, defeasance, other acquisition or retirement or Investment actions described in clauses (1) through (4) above being herein referred to as a collectively “Restricted PaymentPayments”)) if, if at the time the Borrower or such Restricted Subsidiary makes such Restricted Payment of, and after giving effect theretoto, the proposed Restricted Payment:

Limitation on Restricted Payments. (a) The Borrower shall Company will not, and shall will not permit any Restricted Subsidiary, of its Subsidiaries to directly or indirectly, to : (i) declare or pay any dividend or make any distribution on account of the Company's or in respect any of its Capital Stock Subsidiaries' Equity Interests (including including, without limitation, any such payment in connection with any merger or consolidation to which involving the Borrower is a partyCompany) except (x) other than dividends or distributions payable solely in its Capital Stock Equity Interests (other than Disqualified Stock) and (y) of the Company or dividends or distributions payable to the Borrower Company or any Restricted Subsidiary of the Company (and, in the case of any if such Restricted Subsidiary making such dividend or distributionis not a Wholly Owned Subsidiary, to its other holders of its Capital Stock shareholders on no more than a pro rata basis, measured by value)), (ii) purchase, redeem, retire redeem or otherwise acquire or retire for value any Capital Stock Equity Interests of the Borrower held by Persons other than Company or any Subsidiary of the Borrower or a Restricted Subsidiary Company (other than any acquisition of Capital Stock deemed to occur upon such Equity Interests owned by the exercise of options if such Capital Stock represents a portion Company or any Wholly Owned Subsidiary of the exercise price thereofCompany that is a Subsidiary Guarantor), (iii) voluntarily make any principal payment on, or purchase, repurchase, redeem, defease or otherwise voluntarily acquire or retire for valuevalue any Indebtedness that is subordinated to the Notes, prior to scheduled maturity, or applicable scheduled repayment or scheduled sinking fund payment, any Junior Debt payment date with respect thereto and in the applicable amounts so required (other than a purchase, repurchase, redemption, defeasance or other acquisition or retirement for value any of the foregoing with respect to such Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case case, due within one year of the date of such purchase, repurchase, redemption, defeasance or other acquisition or retirementtransaction and in the applicable amounts so required), other than through the purchase or acquisition by the Company of Indebtedness through the issuance in exchange therefor of Equity Interests (other than Disqualified Stock) or (iv) make any Restricted Investment (all such payments and other than a Permitted Investmentactions set forth in clauses (i) in any Person through (any such dividend, distribution, purchase, repurchase, redemption, defeasance, other acquisition or retirement or Investment iv) above being herein collectively referred to as a “"Restricted Payment”Payments"), if unless, at the time the Borrower or such Restricted Subsidiary makes such Restricted Payment of and after giving effect theretoto such Restricted Payment:

Limitation on Restricted Payments. (a) The Borrower shall Company will not, and shall will not permit any Restricted SubsidiarySubsidiary to, directly or indirectly, to (i) declare or pay any dividend or make any distribution on or in with respect of to its Capital Stock (including any such payment in connection with any merger or consolidation to which the Borrower is a party) except other than (x) dividends or distributions payable solely in shares of its Capital Stock (other than Disqualified Redeemable Stock) or in options, warrants or other rights to acquire shares of such Capital Stock and (y) pro rata dividends or distributions payable to on Common Stock of Restricted Subsidiaries held by minority stockholders) held by Persons other than the Borrower Company or any Restricted Subsidiary (and, in the case of any such Restricted Subsidiary making such dividend or distribution, to other holders of its Capital Stock on no more than a pro rata basis, measured by value)Restricted Subsidiaries, (ii) purchase, redeem, retire or otherwise acquire for value any shares of Capital Stock of (A) the Company or an Unrestricted Subsidiary (including options, warrants or other rights to acquire such shares of Capital Stock) held by any Person, or (B) a Restricted Subsidiary (including options, warrants or other rights to acquire such shares of Capital Stock) held by any Affiliate of the Company (other than a Wholly Owned Restricted Subsidiary) or any holder (or any Affiliate of such holder) of 5% or more of the Capital Stock of the Borrower held by Persons other than the Borrower or a Restricted Subsidiary (other than any acquisition of Capital Stock deemed to occur upon the exercise of options if such Capital Stock represents a portion of the exercise price thereof)Company, (iii) voluntarily purchasemake any voluntary or optional principal payment, or voluntary or optional redemption, repurchase, redeemdefeasance, defease or otherwise voluntarily acquire or retire for value, prior to scheduled maturity, scheduled repayment or scheduled sinking fund payment, any Junior Debt (other than a purchase, repurchase, redemption, defeasance or other acquisition or retirement for value in anticipation value, of satisfying a sinking fund obligation, principal installment or final maturity, in each case due within one year Indebtedness of the date Company that is subordinated in right of such purchase, repurchase, redemption, defeasance or other acquisition or retirement)payment to the Notes, or (iv) make any Investment (Investment, other than a Permitted Investment, in any Person (such payments or any other actions described in clauses (i) through (iv) being collectively "Restricted Payments") if, at the time of, and after giving effect to, the proposed Restricted Payment: (A) a Default or Event of Default shall have occurred and be continuing, (B) the Company could not Incur at least $1.00 of Indebtedness under the first paragraph of Section 4.03(a) or (C) the aggregate amount expended for all Restricted Payments (the amount, if other than in cash, to be determined in good faith by the Board of Directors, whose determination shall be conclusive and evidenced by a Board Resolution) made after the Closing Date shall exceed the sum of (1) 50% of the aggregate amount of the Adjusted Consolidated Net Income (or, if the Adjusted Consolidated Net Income is a loss, minus 100% of the amount of such loss) (determined by excluding income resulting from transfers of assets by the Company or a Restricted Subsidiary to an Unrestricted Subsidiary) accrued on a cumulative basis during the period (taken as one accounting period) beginning on the first day of the fiscal quarter immediately following the Closing Date and ending on the last day of the last fiscal quarter preceding the Transaction Date for which reports have been filed with the Commission or provided to the Trustee pursuant to Section 4.18 plus (2) the aggregate Net Cash Proceeds received by the Company after the Closing Date from the issuance and sale permitted by this Indenture of its Capital Stock (other than Redeemable Stock) to a Person who is not a Subsidiary of the Company, including an issuance or sale permitted by this Indenture of Indebtedness of the Company for cash subsequent to the Closing Date, upon the conversion of such Indebtedness into Capital Stock (other than Redeemable Stock) of the Company, or from the issuance to a Person who is not a Subsidiary of the Company of any options, warrants or other rights to acquire Capital Stock of the Company (in each case, exclusive of any Redeemable Stock or any options, warrants or other rights that are redeemable at the option of the holder, or are required to be redeemed, prior to the Stated Maturity of the Notes), in each case except to the extent such Net Cash Proceeds are used to Incur Indebtedness pursuant to clause (xi) of the second paragraph of Section 4.03 plus (3) an amount equal to the net reduction in Investments (other than reductions in Permitted Investments) in any Person (resulting from payments of interest on Indebtedness, dividends, repayments of loans or advances, or other transfers of assets, in each case to the Company or any Restricted Subsidiary or from the Net Cash Proceeds from the sale of any such dividendInvestment (except, distributionin each case, purchase, repurchase, redemption, defeasance, other acquisition to the extent any such payment or retirement or Investment being herein referred to as a “Restricted Payment”proceeds are included in the calculation of Adjusted Consolidated Net Income), if at or from redesignations of Unrestricted Subsidiaries as Restricted Subsidiaries (valued in each case as provided in the time definition of "Investments"), not to exceed, in each case, the Borrower amount of Investments previously made by the Company or such any Restricted Subsidiary makes in such Restricted Payment after giving effect theretoPerson or Unrestricted Subsidiary. The foregoing provision shall not be violated by reason of:

Limitation on Restricted Payments. (aA) The Borrower shall Company will not, and shall the Company will not permit any Restricted Subsidiary, directly or indirectly, to of its Subsidiaries to: (i) declare or pay any dividend or make any payment or distribution (a) on account of the Company’s or in respect any of its Subsidiaries’ Capital Stock (including any such payment made in connection with any merger or consolidation involving the Company or any of its Subsidiaries) or (b) to which the Borrower is a party) except direct or indirect holders of the Company’s or any of its Subsidiaries’ Capital Stock in their capacity as holders, other than (x) dividends or distributions by the Company payable solely in its Capital Stock (other than Disqualified Stock) and of the Company or (y) dividends or distributions payable by the Company or any of its Subsidiaries to the Borrower Company or any Restricted another Subsidiary (and, and in the case of any dividend or distribution payable on or in respect of any class or series of securities issued by a Subsidiary other than a Wholly-Owned Subsidiary, the Company or such Restricted Subsidiary making receives at least its pro rata share of such dividend or distribution, to other holders of distribution in accordance with its Capital Stock on no more than a pro rata basis, measured by valuein such class or series of securities), ; (ii) purchase, redeem, retire defease or otherwise acquire or retire for value (including any payment made in connection with any merger or consolidation involving the Company or any of its Subsidiaries) any Capital Stock of the Borrower Company or any Subsidiary held by Persons other than the Borrower Company or a Restricted Subsidiary any Subsidiary; - 61 - (iii) purchase, repay, prepay, repurchase, redeem, defease, acquire or retire for value any Indebtedness of the Company and its Subsidiaries junior in right of payment or lien priority to the Notes or the Existing Convertible Notes (and any Permitted Refinancing Indebtedness in respect thereof), except in each case any payment of principal at the stated maturity thereof; or (iv) make any Investment other than a Permitted Investment, (all such payments and other actions set forth in clauses (i) through (iv) above being collectively referred to as “Restricted Payments”). (B) Notwithstanding anything to the contrary contain herein, the provisions of this Section 3.11 will not prohibit: (i) the payment of any acquisition dividend or distribution or consummation of any redemption within sixty (60) days after the date of declaration thereof or the giving of a redemption notice related thereto, if at the date of declaration or notice such payment would have complied with any other provision of this Section 3.11; (ii) cashless repurchases of Capital Stock deemed to occur upon the exercise of options stock options, warrants or other securities convertible into or exercisable or exchangeable for Capital Stock if such Capital Stock represents a portion of the exercise exercise, conversion or exchange price thereof), ; (iii) voluntarily purchase, repurchase, redeem, defease or otherwise voluntarily acquire or retire for value, prior to scheduled maturity, scheduled repayment or scheduled sinking fund payment, any Junior Debt (other than a purchase, repurchase, redemption, defeasance or other acquisition or retirement for value of the Indebtedness of the Company or any Subsidiary junior to the Notes upon a Fundamental Change or Asset Sale or analogous construct contained in anticipation the instrument pursuant to which such Indebtedness or Disqualified Stock was issued pursuant to a provision no more favorable, including purchase price, to the holders thereof than the provisions set forth under Section 3.12 and Section 4.02, as applicable, but only if the Company or such Subsidiary has first complied with its obligations under Section 3.12 and Section 4.02, as applicable; (iv) each Subsidiary may make Restricted Payments to the Company or another Subsidiary which is the immediate parent of satisfying the Subsidiary making such Restricted Payment; (v) repurchases of Capital Stock deemed to occur (a) upon the exercise or conversion of stock options, warrants, convertible notes or similar rights to acquire Capital Stock to the extent that such Capital Stock represents all or a sinking fund obligationportion of the exercise, principal installment exchange or final maturityconversion price of those stock options, warrants, convertible notes or similar rights, or (b) upon the withholding of a portion of Capital Stock granted or awarded to a current or former director, officer, employee, manager or director of the Company or any of its Subsidiaries (or consultant or advisor or any spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees of any of the foregoing) solely to the extent necessary to pay for the taxes payable by such Person upon such grant or award (or upon the vesting thereof); - 62 - (vi) a Restricted Payment to pay for the repurchase, retirement or other acquisition for value of Capital Stock of the Company (a) held by any future, present or former employee, director, officer or consultant of the Company or any other Subsidiary upon such Person’s death, disability, retirement or termination of employment and (b) pursuant to and accordance with any management equity plan or stock option plan or any other management or employee benefit plan or other agreement or arrangement; provided, however, that the aggregate Restricted Payments made under this clause (vi)(b) do not exceed $2,750,000 in any calendar year; (vii) the making of any Restricted Payment using, in each case due within one year exchange for, or out of or with the net cash proceeds from the substantially concurrent contribution to the common equity of the date Company or from the substantially concurrent sale (other than to a Subsidiary) of, Capital Stock (other than Disqualified Stock) of the Company to the extent such proceeds are not otherwise applied to the making of Restricted Payments pursuant to this Section 3.11; (viii) any non Wholly-Owned Subsidiary may make Restricted Payments (which may be in cash) to its shareholders, members or partners generally, so long as the Company or the Subsidiary which owns the Capital Stock in the Subsidiary making such Restricted Payment receives at least its pro rata share thereof (based upon its relative holding of the Capital Stock in the Subsidiary making such Restricted Payment and taking into account the relative preferences, if any, of the various classes of Capital Stock of such purchaseSubsidiary); (ix) the payment of cash in lieu of the issuance of fractional shares of Capital Stock in connection with any dividend or split of, or upon exercise, conversion or exchange of warrants, options or other securities exercisable or convertible into, or exchangeable for Capital Stock of the Company or in connection with the issuance of any dividend otherwise permitted to be made under this Section 3.11; (x) (a) any conversion of the Notes to Capital Stock of the Company in accordance with this Indenture, and (b) the payment (either in cash or by converting such cash amount into additional Capital Stock of the Company) of any Make-Whole Premium, or any other amount that may become due in connection with any conversion of the Notes; provided that any such cash payment shall be subject to no Default or Event of Default and pro forma compliance with Section 3.16 after giving effect to such cash payment; (xi) the repurchase, redemption, defeasance or other acquisition or retirement)retirement for value of the Existing Convertible Notes in exchange for, or with the net proceeds from a substantially concurrent incurrence of Permitted Refinancing Indebtedness or of Series 2 Notes issued after the date of this Indenture, in each case, as permitted under Section 3.09; (ivxii) make any Investment (other than payments or distributions to dissenting stockholders pursuant to applicable law, pursuant to or in connection with a Permitted Investment) in any Person (any such dividendconsolidation, distributionamalgamation, purchasemerger or transfer of all or substantially all of the assets of the Company and its Subsidiaries, repurchase, redemption, defeasance, other acquisition or retirement or Investment being herein referred to taken as a “Restricted Payment”)whole, if at that complies with Section 6.01; provided that as a result of such consolidation, amalgamation, merger or transfer of assets, the time the Borrower or such Restricted Subsidiary makes such Restricted Payment after giving effect thereto:Company shall comply with Section 4.02; and

Limitation on Restricted Payments. (a) The Borrower shall Each of the Guarantor and the Company will not, and shall will not permit any Restricted SubsidiarySubsidiary to, directly or indirectly, to (i) declare or pay any dividend or make any distribution on or in with respect of to its Capital Stock (including any such payment in connection with any merger or consolidation to which the Borrower is a party) except other than (x) dividends or distributions payable solely in shares of its Capital Stock (other than Disqualified Stock) or in options, warrants or other rights to acquire shares of such Capital Stock and (y) pro rata dividends or distributions payable to on Common Stock of Restricted Subsidiaries (other than the Borrower Company) held by minority stockholders, provided that such dividends do not in the aggregate exceed the minority stockholders’ pro rata share of such Restricted Subsidiaries’ net income from the first day of the fiscal quarter beginning immediately following the Closing Date) held by Persons other than the Guarantor or any Restricted Subsidiary (and, in the case of any such Restricted Subsidiary making such dividend or distribution, to other holders of its Capital Stock on no more than a pro rata basis, measured by value)Restricted Subsidiaries, (ii) purchase, redeem, retire or otherwise acquire for value any shares of Capital Stock of (A) the Company, the Guarantor or an Unrestricted Subsidiary (including options, warrants or other rights to acquire such shares of Capital Stock) held by any Person or (B) a Restricted Subsidiary (including options, warrants or other rights to acquire such shares of Capital Stock) held by any Affiliate of the Guarantor (other than a Wholly Owned Restricted Subsidiary) or any holder (or any Affiliate of such holder) of 5% or more of the Capital Stock of the Borrower held by Persons other than Company or the Borrower or a Restricted Subsidiary (other than any acquisition of Capital Stock deemed to occur upon the exercise of options if such Capital Stock represents a portion of the exercise price thereof)Guarantor, (iii) voluntarily purchasemake any voluntary or optional principal payment, or voluntary or optional redemption, repurchase, redeemdefeasance, defease or otherwise voluntarily acquire or retire for value, prior to scheduled maturity, scheduled repayment or scheduled sinking fund payment, any Junior Debt (other than a purchase, repurchase, redemption, defeasance or other acquisition or retirement for value in anticipation value, of satisfying a sinking fund obligation, principal installment or final maturity, in each case due within one year Indebtedness of the date Company or the Guarantor that is subordinated in right of such purchasepayment to the Securities or to the Securities Guarantees, repurchase, redemption, defeasance or other acquisition or retirement), as the case may be or (iv) make any Investment (Investment, other than a Permitted Investment, in any Person (such payments or any other actions described in clauses (i) through (iv) above being collectively “Restricted Payments”) if, at the time of, and after giving effect to, the proposed Restricted Payment; (A) a Default or Event of Default shall have occurred and be continuing, (B) the Guarantor could not Incur at least $1.00 of Indebtedness under the first paragraph of Section 4.03 or (C) the aggregate amount of all Restricted Payments (the amount, if other than in cash, to be determined in good faith by the Board of Directors of the Guarantor, whose determination shall be conclusive and evidenced by a Board Resolution) made after the Closing Date shall exceed the sum of (1) 50% of the aggregate amount of the Adjusted Consolidated Net Income (or, if the Adjusted Consolidated Net Income is a loss, minus 100% of the amount of such loss) (determined by excluding income resulting from transfers of assets by the Guarantor or a Restricted Subsidiary to an Unrestricted Subsidiary) accrued on a cumulative basis during the period (taken as one accounting period) beginning on the first day of the fiscal quarter beginning immediately following the Closing Date and ending on the last day of the last fiscal quarter preceding the Transaction Date for which reports have been filed or provided to the Trustee pursuant to Section 4.18 plus (2) the aggregate Net Cash Proceeds received by the Company or the Guarantor after the Acquisition Date from a capital contribution or the issuance and sale (other than pursuant to the Capital Contribution Agreement) permitted by this Indenture of Capital Stock of the Company or the Guarantor (other than Disqualified Stock) to a Person who is not a Subsidiary of the Company or the Guarantor, including an issuance or sale permitted by this Indenture of Indebtedness of the Company or the Guarantor for cash subsequent to the Closing Date upon the conversion of such Indebtedness into Capital Stock (other than Disqualified Stock) of the Company or the Guarantor, or from the issuance to a Person who is not a Subsidiary of the Company or the Guarantor of any options, warrants or other rights to acquire Capital Stock of the Company or the Guarantor (in each case, exclusive of any Disqualified Stock or any options, warrants or other rights that are redeemable at the option of the holder, or are required to be redeemed, prior to the Stated Maturity of the Securities) plus (3) an amount equal to the net reduction in Investments (other than reductions in Permitted Investments) in any Person (resulting from payments of interest on Indebtedness, dividends, repayments of loans or advances, or other transfers of assets, in each case to the Guarantor or any Restricted Subsidiary or from the Net Cash Proceeds from the sale of any such dividendInvestment (except, distributionin each case, purchaseto the extent any such payment or proceeds are included in the calculation of Adjusted Consolidated Net Income), or from redesignations of Unrestricted Subsidiaries as Restricted Subsidiaries (valued in each case as provided in the definition of “Investments”), not to exceed, in each case, the amount of Investments previously made by the Company or any Restricted Subsidiary in such Person or Unrestricted Subsidiary. The foregoing provision shall not be violated by reason of: (i) the payment of any dividend within 60 days after the date of declaration thereof if, at said date of declaration, such payment would comply with the foregoing paragraph; (ii) the redemption, repurchase, retirement, defeasance or other acquisition for value of Indebtedness of the Company or the Guarantor that is subordinated in right of payment to the Securities or the Securities Guarantees, as the case may be, including premium, if any, and accrued and unpaid interest, with the proceeds of, or in exchange for, Indebtedness Incurred under clause (iii) of the second paragraph of part (a) of Section 4.03; (iii) the repurchase, redemption or other acquisition of Capital Stock of the Company or the Guarantor (or options, warrants or other rights to acquire such Capital Stock) in exchange for or out of the proceeds of a substantially concurrent offering of, shares of Capital Stock (or options, warrants or other rights to acquire such Capital Stock) (other than Disqualified Stock) of the Company or the Guarantor (other than pursuant to the Capital Contribution Agreement); (iv) the making of any principal payment or the repurchase, redemption, defeasanceretirement, defeasance or other acquisition for value of Indebtedness of the Company or retirement the Guarantor which is subordinated in right of payment to the Securities or Investment being herein referred the Securities Guarantees, as the case may be in exchange for, or out of the proceeds of, a substantially concurrent offering (other than pursuant to the Capital Contribution Agreement) of, shares of the Capital Stock (other than Disqualified Stock) of the Company or the Guarantor (or options, warrants or other rights to acquire such Capital Stock); (v) payments or distributions to dissenting stockholders pursuant to applicable law, pursuant to or in connection with a consolidation, merger or transfer of assets that complies with the provisions of this Indenture applicable to mergers, consolidations and transfers of all or substantially all of the property and assets of the Company or the Guarantor; (vi) the declaration or payment of dividends on the Common Stock of the Guarantor or the Company following a Public Equity Offering of such Common Stock, of up to 6% per annum of the Net Cash Proceeds received by the Guarantor or the Company in such Public Equity Offering; (vii) Investments acquired as a “Restricted Payment”), capital contribution or in exchange for Capital Stock (other than Disqualified Stock) of the Guarantor or the Company; (viii) (A) the repurchase by the Guarantor or the Company of Capital Stock of the Company from Mexico if at the time the Borrower or such Restricted Subsidiary makes such Restricted Payment after giving effect thereto:to such repurchase and any Indebtedness Incurred to fund such repurchase the Interest Coverage Ratio would be greater than 4.0:1 and (B) the repurchase of Capital Stock of the Guarantor or the Company from Mexico, to the extent that the consideration paid to Mexico does not exceed the amount of value added taxes refunded to the Company or the Guarantor as a result of matters pending on the Closing Date with respect to such value added taxes and (C) the declaration and payment of dividends in order to effect subclauses (A) or (B) of this clause (viii); and (ix) the declaration and payment of dividends to the Guarantor in an amount not to exceed the Guarantor’s operating expenses, corporate overhead costs and expenses and taxes; provided that the amount so dividended is actually used for such purpose; and the declaration and payment of pro rata dividends or distributions on Common Stock of the Company held by minority stockholders paid in connection with dividends to the Guarantor permitted by this clause (ix), provided that such dividends do not in the aggregate exceed the minority stockholders’ pro rata share of the Company’s net income from the first day of the fiscal quarter beginning immediately following the Closing Date, provided that, except in the case of clauses (i) and (iii), no Default or Event of Default shall have occurred and be continuing or occur as a consequence of the actions or payments set forth herein. Each Restricted Payment permitted pursuant to the preceding paragraph (other than the Restricted Payment referred to in clause (ii) thereof, an exchange of Capital Stock for Capital Stock or Indebtedness referred to in clause (iii) or (iv) thereof, an Investment referred to in clause (vii) thereof, a repurchase of Capital Stock referred to in clause

Limitation on Restricted Payments. (a) The Borrower shall GST will not, and shall will not permit any Restricted SubsidiarySubsidiary to, directly or indirectly, to (i) declare or pay any dividend or make any distribution on or in respect of its Capital Stock (including any such payment in connection with any merger or consolidation to which the Borrower is a party) except (x) other than dividends or distributions payable solely in shares of its or such Restricted Subsidiary's Capital Stock (other than Disqualified Redeemable Stock) of the same class held by such holders or in options, warrants or other rights to acquire such shares of Capital Stock) held by Persons other than GST or any of its Restricted Subsidiaries (and (y) other than pro rata dividends or distributions payable to the Borrower or any on Common Stock of Restricted Subsidiary (and, in the case of any such Restricted Subsidiary making such dividend or distribution, to other holders of its Capital Stock on no more than a pro rata basis, measured by valueSubsidiaries), (ii) purchase, redeem, retire or otherwise acquire for value any shares of Capital Stock of the Borrower GST (including options, warrants or other rights to acquire such shares of Capital Stock) held by Persons other than the Borrower or a any Wholly Owned Restricted Subsidiary (other than any acquisition Subsidiaries of Capital Stock deemed to occur upon the exercise of options if such Capital Stock represents a portion of the exercise price thereof)GST, (iii) voluntarily purchasemake any voluntary or optional principal payment, or voluntary or optional redemption, repurchase, redeemdefeasance, defease or otherwise voluntarily acquire or retire for value, prior to scheduled maturity, scheduled repayment or scheduled sinking fund payment, any Junior Debt (other than a purchase, repurchase, redemption, defeasance or other acquisition or retirement for value value, of Indebtedness of GST USA or GST that is subordinated in anticipation right of satisfying a sinking fund obligationpayment to the Securities or the Security Guarantee, principal installment or final maturity, in each as the case due within one year of the date of such purchase, repurchase, redemption, defeasance or other acquisition or retirement)may be, or (iv) make any Investment (Investment, other than a Permitted Investment, in any Person (such payments or any other actions described in clauses (i) through (iv) being collectively "RESTRICTED PAYMENTS") if, at the time of, and after giving effect to, the proposed Restricted Payment: (A) a Default or Event of Default shall have occurred and be continuing, (B) GST could not Incur at least $1.00 of Indebtedness under the first paragraph of Section 4.03 or (C) the aggregate amount of all Restricted Payments (the amount, if other than in cash, to be determined in good faith by the Board of Directors, whose determination shall be conclusive and evidenced by a Board Resolution) made after the Closing Date shall exceed the sum of (1) 50% of the aggregate amount of the Adjusted Consolidated Net Income (or, if the Adjusted Consolidated Net Income is a loss, minus 100% of such amount) (determined by excluding income resulting from transfers of assets by GST or a Restricted Subsidiary to an Unrestricted Subsidiary) accrued on a cumulative basis during the period (taken as one accounting period) beginning on the first day of the fiscal quarter immediately following the Closing Date and ending on the last day of the last fiscal quarter preceding the Transaction Date for which reports have been filed pursuant to Section 4.20 plus (2) the aggregate Net Cash Proceeds received by GST after the Closing Date from the issuance and sale permitted by this Indenture of its Capital Stock (other than Redeemable Stock) to a Person who is not a Subsidiary of GST, or from the issuance to a Person who is not a Subsidiary of GST of any options, warrants or other rights to acquire Capital Stock of GST (in each case, exclusive of any Redeemable Stock or any options, warrants or other rights that are redeemable at the option of the holder, or are required to be redeemed, prior to the Stated Maturity of the Securities), in each case except to the extent such Net Cash Proceeds are used to Incur Indebtedness pursuant to clause (v) of the second paragraph of Section 4.03, plus (3) an amount equal to the net reduction in Investments (other than reductions in Permitted Investments and reductions in Investments made pursuant to clause (vi) of the second paragraph of this Section 4.04) in any Person resulting from payments of interest on Indebtedness, dividends, repayments of loans or advances, or other transfers of assets, in each case to GST or any Restricted Subsidiary (except to the extent any such dividend, distribution, purchase, repurchase, redemption, defeasance, other acquisition or retirement or Investment being herein referred to as a “Restricted Payment”payment is included in the calculation of Adjusted Consolidated Net Income), if at or from redesignations of Unrestricted Subsidiaries as Restricted Subsidiaries (valued in each case as provided in the time definition of "Investments"), not to exceed the Borrower or amount of Investments previously made by GST and its Restricted Subsidiaries in such Restricted Subsidiary makes such Restricted Payment after giving effect theretoPerson. The foregoing provision shall not be violated by reason of:

Limitation on Restricted Payments. (a) The Borrower Company shall not, and shall not permit any of its Restricted SubsidiarySubsidiaries to, directly or indirectly, to : (i1) declare or pay any dividend or make any other payment or distribution on account of the Company’s or in respect any of its Capital Stock (including Restricted Subsidiaries’ Equity Interests including, without limitation, any such payment dividend or distribution in connection with any merger or consolidation involving the Company (other than dividends or distributions by a Restricted Subsidiary so long as, in the case of any dividend or distribution payable on or in respect of any class or series of securities issued by a Restricted Subsidiary other than a Wholly Owned Restricted Subsidiary, the Company or a Restricted Subsidiary receives at least its pro rata share of such dividend or distribution in accordance with its Equity Interests in such class or series of securities), or to which the Borrower is a party) except direct or indirect holders of the Company’s or any of its Restricted Subsidiaries’ Equity Interests in their capacity as such (x) other than dividends or distributions payable solely in its Capital Stock Equity Interests (other than Disqualified Stock) and of the Company); (y) dividends or distributions payable to the Borrower or any Restricted Subsidiary (and, in the case of any such Restricted Subsidiary making such dividend or distribution, to other holders of its Capital Stock on no more than a pro rata basis, measured by value), (ii2) purchase, redeem, retire redeem or otherwise acquire or retire for value (including, without limitation, in connection with any Capital Stock merger or consolidation involving the Company) any Equity Interests of the Borrower held by Persons other than the Borrower Company or a Restricted Subsidiary (other than any acquisition of Capital Stock deemed to occur upon the exercise of options if such Capital Stock represents a portion direct or indirect parent of the exercise price thereof)Company; (3) make any principal payment on or with respect to, (iii) voluntarily or purchase, repurchase, redeem, defease or otherwise voluntarily acquire or retire for valuevalue any Subordinated Indebtedness, prior to scheduled maturity, except a scheduled repayment of principal or scheduled sinking fund payment, any Junior Debt a payment of principal at Stated Maturity; (other than a purchase, repurchase, redemption, defeasance or other acquisition or retirement for value in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case due within one year of the date of such purchase, repurchase, redemption, defeasance or other acquisition or retirement), or (iv4) make any payment of interest on Subordinated Indebtedness issued pursuant to Section 4.4(b)(xi); or (5) make any Restricted Investment (all such payments and other than a Permitted Investmentactions set forth in clauses (1) in any Person through (any such dividend, distribution, purchase, repurchase, redemption, defeasance, other acquisition or retirement or Investment 5) above being herein collectively referred to as a “Restricted PaymentRESTRICTED PAYMENTS”), if unless, at the time the Borrower or such Restricted Subsidiary makes such Restricted Payment of and after giving effect theretoto such Restricted Payment:

Limitation on Restricted Payments. The Company (ai) The Borrower shall not, and shall not permit any Restricted Subsidiary, directly or indirectly, to (i) declare or pay any dividend or make any distribution on or in respect of any class of its Capital Stock or to the holders thereof (including any such payment in connection with any pursuant to a merger or consolidation to which of the Borrower is a partyCompany, but excluding (a) except (x) any dividends or distributions payable solely in shares of its Capital Stock (other than Disqualified Stock) or in options, warrants or other rights to acquire its Capital Stock (other than Disqualified Stock) and (yb) dividends in accordance with the terms of the Convertible Preferred Stock or distributions payable to 12 3/4% Cumulative Exchangeable Preferred Stock, as such terms exist on the Borrower or any Restricted Subsidiary (and, in the case date of any such Restricted Subsidiary making such dividend or distribution, to other holders of its Capital Stock on no more than a pro rata basis, measured by valuethis Indenture), (ii) shall not, and shall not permit any Subsidiary of the Company, directly or indirectly, to purchase, redeem or otherwise acquire or retire for value (a) any Capital Stock of the Company or (b) any options, warrants or rights to purchase or acquire shares of Capital Stock of the Company (in the case of either (a) or (b) other than in exchange for the Company's Capital Stock (other than Disqualified Stock) or options, warrants or other rights to purchase the Company's Capital Stock (other than Disqualified Stock)), (iii) shall not make, or permit any Subsidiary of the Company to make, any loan, advance, capital contribution to or Investment in, or payment on a Guarantee of any obligation of, any Affiliate, other than the Company or a Wholly Owned Subsidiary, (iv) shall not, and shall not permit any Subsidiary of the Company to, redeem, defease, repurchase, retire or otherwise acquire for value any Capital Stock of the Borrower held by Persons other than the Borrower or a Restricted Subsidiary (other than any acquisition of Capital Stock deemed to occur upon the exercise of options if such Capital Stock represents a portion of the exercise price thereof), (iii) voluntarily purchase, repurchase, redeem, defease or otherwise voluntarily acquire or retire for value, value prior to any scheduled maturity, scheduled repayment or scheduled sinking fund payment, any Junior Debt of the Company which is subordinated in right of payment to the Securities (other than a purchasein exchange for the Company's Capital Stock (other than Disqualified Stock) or options, repurchase, redemption, defeasance warrants or other acquisition or retirement for value in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case due within one year of rights to purchase the date of such purchase, repurchase, redemption, defeasance or Company's Capital Stock (other acquisition or retirementthan Disquali- fied Stock)), or and (ivv) may not make any Investment (other than a Permitted Investment) in any Person Subsidiary that is subject to an encumbrance or restriction prohibited under Section 1011 or any Investments in any Unrestricted Subsidiary (any such dividend, distribution, purchase, repurchase, redemption, defeasance, other acquisition or retirement or Investment the transactions described in Clauses (i) through (v) being herein referred to herein as a “"Restricted Payment”Payments"), if at the time the Borrower or such Restricted Subsidiary makes such Restricted Payment after giving effect theretothereof:

Limitation on Restricted Payments. The Company (ai) The Borrower shall may not, and shall may not permit any Restricted SubsidiarySubsidiary of the Company to, directly or indirectly, to (i) declare or pay any dividend or make any distribution on or in respect of its Capital Stock (including any such payment in connection with any merger or consolidation derived from assets of the Company or any Subsidiary) in respect of its Capital Stock or to which the Borrower is a partyholders thereof, excluding (a) except (x) any dividends or distributions by the Company payable solely in shares of its Capital Stock (other than Disqualified Redeemable Stock) or in options, warrants or other rights to acquire its Capital Stock (other than Redeemable Stock), and (yb) in the case of a Subsidiary, dividends or distributions payable to the Borrower Company or a Wholly Owned Subsidiary of the Company or pro rata dividends or distributions, (ii) may not, and may not permit any Subsidiary to, purchase, redeem, or otherwise acquire or retire for value (a) any Capital Stock of the Company or any Restricted Subsidiary or any Related Person of the Company or (andb) any options, warrants or other rights to acquire shares of Capital Stock of the Company or any Subsidiary or any Related Person of the Company or any securities convertible or exchangeable into shares of Capital Stock of the Company or any Subsidiary or any Related person of the Company, in each case except, in the case of any such Restricted Subsidiary making such dividend or distribution, to other holders of its Capital Stock on no more than of a pro rata basisSubsidiary, measured by value)from the Company or a Wholly Owned Subsidiary of the Company, and (iiiii) purchasemay not, and may not permit any Subsidiary to, redeem, retire or otherwise acquire for value any Capital Stock of the Borrower held by Persons other than the Borrower or a Restricted Subsidiary (other than any acquisition of Capital Stock deemed to occur upon the exercise of options if such Capital Stock represents a portion of the exercise price thereof), (iii) voluntarily purchase, repurchase, redeem, defease or otherwise voluntarily acquire or retire for value, value prior to any scheduled maturity, scheduled repayment or scheduled sinking fund paymentpayment Indebtedness of the Company which is subordinate in right of payment to the Debentures (each of clauses (i) through (iii) being a "Restricted Payment") if: (1) a Default or Event of Default shall have occurred and is continuing or would result from such Restricted Payment, or (2) upon giving effect to such Restricted Payment, the aggregate of all Restricted Payments (which term does not include any Junior Debt Permitted Distributions (other than a purchaseas defined below)) from June 30, repurchase, redemption, defeasance or other acquisition or retirement for value in anticipation of satisfying a sinking fund obligation, principal installment or final maturity1996 exceeds the sum of: (a) cumulative Net Cash Flow (or, in each the case due within one year Net Cash Flow shall be negative, less such deficit) of the Company since June 30, 1996 through the last day of the last full fiscal quarter ending immediately preceding the date of such purchaseRestricted Payment for which quarterly or annual financial statements are available (taken as a single accounting period); plus (b) 100% of the aggregate net proceeds received by the Company after July 10, repurchase1996, redemption, defeasance from contributions of capital or other acquisition or retirement), or (iv) make any Investment the issuance and sale (other than to a Permitted InvestmentSubsidiary) in of Capital Stock (other than Redeemable Stock) of the Company, options, warrants or other rights to acquire Capital Stock (other than Redeemable Stock) of the Company and Indebtedness of the Company that has been converted into or exchanged for Capital Stock (other than Redeemable Stock and other than by or from a Subsidiary) of the Company other than Investors Equity (as defined below). Prior to the making of any Person (any such dividend, distribution, purchase, repurchase, redemption, defeasance, other acquisition or retirement or Investment being herein referred to as a “Restricted Payment”), if at the time Company shall deliver to the Borrower Holder's a certificate of the President of the Company setting forth the computations by which the determination required by clause (2) above was made and stating that no Default or Event of Default has occurred and is continuing or will result from such Restricted Subsidiary makes Payment. Notwithstanding the foregoing, the Company shall be entitled to make the following Restricted Payments unless a payment Default described in Section 7.01(a) has occurred and is continuing or would result from the making of such Restricted Payment after giving effect theretoPayment:

Limitation on Restricted Payments. (a) The Borrower shall Company will not, and shall will not permit any of its Restricted SubsidiarySubsidiaries to, directly or indirectly, to : (i) declare or pay any dividend or make any other payment or distribution on account of the Company's or in respect of its Capital Stock any Restricted Subsidiary's Equity Interests (including including, without limitation, any such payment in connection with any merger or consolidation to which the Borrower is a partyconsolidation) except (x) other than dividends or distributions (A) paid or payable solely in its Capital Stock Equity Interests (other than Disqualified Stock) and of the Company or (yB) dividends paid or distributions payable to the Borrower Company or any Wholly Owned Restricted Subsidiary (and, in of the case of any such Restricted Subsidiary making such dividend or distribution, to other holders of its Capital Stock on no more than a pro rata basis, measured by value), Company; (ii) purchase, redeem, retire redeem or otherwise acquire or retire for value any Capital Stock Equity Interests of the Borrower held by Persons other than Company or any Affiliate of the Borrower Company or a any Restricted Subsidiary of the Company (other than any acquisition of Capital Stock deemed to occur upon such Equity Interests owned by the exercise of options if such Capital Stock represents a portion Company or any Wholly Owned Restricted Subsidiary of the exercise price thereofCompany), ; (iii) voluntarily make any principal payment on, or purchase, repurchase, redeem, defease or otherwise voluntarily acquire or retire for value, value prior to the scheduled maturity, scheduled repayment or scheduled sinking fund payment, any Junior Debt Subordinated Indebtedness (other than a except, if no Default or Event of Default is continuing or would result therefrom, any such payment, purchase, repurchase, redemption, defeasance or other acquisition or retirement for value in anticipation made out of satisfying a sinking fund obligation, principal installment or final maturity, in each case due within one year of the date of Excess Proceeds available for general corporate purposes if (1) such purchase, repurchase, redemption, defeasance payment or other acquisition action is required by the indenture or retirement), other agreement or instrument pursuant to which such Subordinated Indebtedness was issued and (2) the Company has purchased all Notes and other senior Indebtedness properly tendered pursuant to an Asset Sale Offer required under Section 4.10; or (iv) make any Restricted Investment (all such payments and other than a Permitted Investmentactions set forth in clauses (i) in any Person through (any such dividend, distribution, purchase, repurchase, redemption, defeasance, other acquisition or retirement or Investment iv) above being herein collectively referred to hereinafter as a “"Restricted Payment”Payments"), if unless, at the time the Borrower or such Restricted Subsidiary makes such Restricted Payment of and after giving effect theretoto such Restricted Payment:

Limitation on Restricted Payments. (a) The Borrower shall Company will --------------------------------- not, and shall will not permit any Restricted SubsidiarySubsidiary to, directly or indirectly, to (i) declare or pay any dividend or make any distribution on or in with respect of to its Capital Stock (including any such payment in connection with any merger or consolidation to which the Borrower is a party) except other than (x) dividends or distributions payable solely in shares of its Capital Stock (other than Disqualified Stock) or in options, warrants or other rights to acquire shares of such Capital Stock and (y) pro rata dividends or distributions payable to on Common Stock of Restricted Subsidiaries held by minority stockholders, provided that such dividends do not in the Borrower aggregate exceed the minority stockholders' pro rata share of such Restricted Subsidiaries' net income from the first day of the fiscal quarter beginning immediately following the Closing Date) held by Persons other than the Company or any Restricted Subsidiary (and, in the case of any such Restricted Subsidiary making such dividend or distribution, to other holders of its Capital Stock on no more than a pro rata basis, measured by value)Restricted Subsidiaries, (ii) purchase, redeem, retire or otherwise acquire for value any shares of Capital Stock of (A) the Company or an Unrestricted Subsidiary (including options, warrants or other rights to acquire such shares of Capital Stock) held by any Person or (B) a Restricted Subsidiary (including options, warrants or other rights to acquire such shares of Capital Stock) held by any Affiliate of the Company (other than a Wholly Owned Restricted Subsidiary) or any holder (or any Affiliate of such holder) of 5% or more of the Capital Stock of the Borrower held by Persons other than the Borrower or a Restricted Subsidiary (other than any acquisition of Capital Stock deemed to occur upon the exercise of options if such Capital Stock represents a portion of the exercise price thereof)Company, (iii) voluntarily purchasemake any voluntary or optional principal payment, or voluntary or optional redemption, repurchase, redeemdefeasance, defease or otherwise voluntarily acquire or retire for value, prior to scheduled maturity, scheduled repayment or scheduled sinking fund payment, any Junior Debt (other than a purchase, repurchase, redemption, defeasance or other acquisition or retirement for value in anticipation value, of satisfying a sinking fund obligation, principal installment or final maturity, in each case due within one year Indebtedness of the date Company that is subordinated in right of such purchase, repurchase, redemption, defeasance or other acquisition or retirement), payment to the Debentures or (iv) make any Investment (Investment, other than a Permitted Investment) , in any Person (such payments or any such dividendother actions described in clauses (i) through (iv) above being collectively "Restricted Payments") if, distribution, purchase, repurchase, redemption, defeasance, other acquisition or retirement or Investment being herein referred to as a “Restricted Payment”), if at the time the Borrower or such Restricted Subsidiary makes such Restricted Payment of, and after giving effect thereto:to, the proposed Restricted Payment: (A) a Default or Event of Default shall have occurred and be continuing, (B) the Company could not Incur at least $1.00 of Indebtedness under the first paragraph of Section

Limitation on Restricted Payments. (a) The Borrower shall Company will not, and shall will not permit any Restricted SubsidiarySubsidiary to, directly or indirectly, to (i) declare or pay any dividend or make any distribution on or in respect of its Capital Stock (including any such payment in connection with any merger or consolidation to which the Borrower is a party) except (x) other than dividends or distributions payable solely in shares of its or such Restricted Subsidiary's Capital Stock (other than Disqualified Redeemable Stock) and (yof the same class held by such holders or in options, warrants or other rights to acquire such shares of Capital Stock) dividends or distributions payable to held by Persons other than the Borrower Company or any Restricted Subsidiary (and, in the case of any such Restricted Subsidiary making such dividend or distribution, to other holders of its Capital Stock on no more than a pro rata basis, measured by value)Wholly Owned Restricted Subsidiaries, (ii) purchase, redeem, retire or otherwise acquire for value any shares of Capital Stock of (A) the Company or an Unrestricted Subsidiary (including options, warrants or other rights to acquire such shares of Capital Stock) held by any Person or (B) a Restricted Subsidiary of the Company (including options, warrants or other rights to acquire such shares of Capital Stock) held by any Affiliate of the Company (other than a Wholly Owned Restricted Subsidiary) or any holder (or any Affiliate of such holder) of 5% or more of the Capital Stock of the Borrower held by Persons other than the Borrower or a Restricted Subsidiary (other than any acquisition of Capital Stock deemed to occur upon the exercise of options if such Capital Stock represents a portion of the exercise price thereof)Company, (iii) voluntarily purchasemake any voluntary or optional principal payment, or voluntary or optional redemption, repurchase, redeemdefeasance, defease or otherwise voluntarily acquire or retire for value, prior to scheduled maturity, scheduled repayment or scheduled sinking fund payment, any Junior Debt (other than a purchase, repurchase, redemption, defeasance or other acquisition or retirement for value in anticipation value, of satisfying a sinking fund obligation, principal installment or final maturity, in each case due within one year Indebtedness of the date Company that is subordinated in right of such purchase, repurchase, redemption, defeasance or other acquisition or retirement), payment to the Notes or (iv) make any Investment (Investment, other than a Permitted Investment, in any Person (such payments or any other actions described in clauses (i) through (iv) being collectively "Restricted Payments") if, at the time of, and after giving effect to, the proposed Restricted Payment: (A) a Default or Event of Default shall have occurred and be continuing, (B) the Company could not Incur at least $1.00 of Indebtedness under the first paragraph of Section 4.03 or (C) the aggregate amount expended for all Restricted Payments (the amount so expended, if other than in cash, to be determined in good faith by the Board of Directors, whose determination shall be conclusive and evidenced by a Board Resolution) after the date of this Indenture shall exceed the sum of (1) 50% of 49 42 the aggregate amount of the Adjusted Consolidated Net Income (or, if the Adjusted Consolidated Net Income is a loss, minus 100% of the amount of such loss) (determined by excluding income resulting from transfers of assets by the Company or a Restricted Subsidiary to an Unrestricted Subsidiary) accrued on a cumulative basis during the period (taken as one accounting period) beginning on the first day of the fiscal quarter immediately following the Closing Date and ending on the last day of the last fiscal quarter preceding the Transaction Date plus (2) the aggregate Net Cash Proceeds received by the Company after the Closing Date from the issuance and sale permitted by this Indenture of its Capital Stock (other than Redeemable Stock) to a Person who is not a Subsidiary of the Company, or from the issuance to a Person who is not a Subsidiary of the Company of any options, warrants or other rights to acquire Capital Stock of the Company (in each case, exclusive of any Redeemable Stock or any options, warrants or other rights that are redeemable at the option of the holder, or are required to be redeemed, prior to the Stated Maturity of the Notes) plus (3) an amount equal to the net reduction in Investments (other than reductions in Permitted Investments) in any Person (resulting from payments of interest on Indebtedness, dividends, repayments of loans or advances, or other transfers of assets, in each case to the Company or any Restricted Subsidiary or from the Net Cash Proceeds from the sale of any such dividendInvestment (except, distributionin each case, purchase, repurchase, redemption, defeasance, other acquisition to the extent any such payment or retirement or Investment being herein referred to as a “Restricted Payment”proceeds is included in the calculation of Adjusted Consolidated Net Income), if at or from redesignations of Unrestricted Subsidiaries as Restricted Subsidiaries (valued in each case as provided in the time definition of "Investments"), not to exceed the Borrower or such amount of Investments previously made by the Company and any Restricted Subsidiary makes in such Restricted Payment after giving effect theretoPerson. The foregoing provision shall not be violated by reason of:

Limitation on Restricted Payments. (a) The Borrower Company shall not, and shall not permit any Restricted SubsidiarySubsidiary to, directly or indirectly, to (i) declare or pay any dividend or make any distribution on or in with respect of to its Capital Stock held by Persons other than the Company or any of its Restricted Subsidiaries (including any such payment in connection with any merger or consolidation to which the Borrower is a party) except (x) other than dividends or distributions payable solely in shares of its or such Restricted Subsidiary's Capital Stock (other than Disqualified Stock) or in options, warrants or other rights to acquire shares of such Capital Stock and (y) other than pro rata dividends or distributions payable to on Common Stock of Restricted Subsidiaries other than the Borrower or any Restricted Subsidiary (and, in the case of any such Restricted Subsidiary making such dividend or distribution, to other holders of its Capital Stock on no more than a pro rata basis, measured by valueGuarantor), (ii) purchase, redeem, retire or otherwise acquire for value any shares of Capital Stock of the Borrower Company or the Guarantor (including options, warrants or other rights 49 42 to acquire such shares of Capital Stock) held by Persons other than the Borrower Company or any of its Wholly Owned Restricted Subsidiaries, (iii) make any voluntary or optional principal payment, or voluntary or optional redemption, repurchase, defeasance, or other acquisition or retirement for value, of Indebtedness of the Company that is subordinated in right of payment to the Securities or of the Guarantor that is subordinated to the Security Guarantee or (iv) make any Investment, other than a Permitted Investment, in any Person (such payments or any other actions described in clauses (i) through (iv) being collectively "Restricted Payments") if, at the time of, and after giving effect to, the proposed Restricted Payment: (A) a Default or Event of Default shall have occurred and be continuing; (B) except with respect to Investments and dividends on the Common Stock of the Guarantor, the Company could not Incur at least $1.00 of Indebtedness under the first paragraph of Section 4.03; or (C) the aggregate amount of all Restricted Payments after the Closing Date shall exceed the sum of (1) 50% of the aggregate amount of the Adjusted Consolidated Net Income (or, if the Adjusted Consolidated Net Income is a loss, minus 100% of such amount) (determined by excluding income resulting from transfers of assets by the Company or a Restricted Subsidiary to an Unrestricted Subsidiary) accrued on a cumulative basis during the period (taken as one accounting period) beginning on the first day of the fiscal quarter immediately following the Closing Date and ending on the last day of the last fiscal quarter preceding the Transaction Date for which reports have been sent to Holders pursuant to Section 4.19 plus (2) the aggregate Net Cash Proceeds received by the Company or the Guarantor after the Closing Date from the issuance and sale permitted by this Indenture of its Capital Stock (other than Disqualified Stock) to a Person who is not a Subsidiary of the Company or the Guarantor, or from the issuance to a Person who is not a Subsidiary of the Company or the Guarantor of any acquisition of options, warrants or other rights to acquire Capital Stock deemed to occur upon the exercise of options if such Capital Stock represents a portion of the exercise price thereofCompany (in each case, exclusive of any convertible Indebtedness, Disqualified Stock or any options, warrants or other rights that are redeemable at the option of the holder, or are required to be redeemed, prior to the Stated Maturity of the Securities), less the amount invested in the Company pursuant to clause (iii) voluntarily purchase, repurchase, redeem, defease or otherwise voluntarily acquire or retire for value, prior of the definition of "Change of Control" plus (3) an amount equal to scheduled maturity, scheduled repayment or scheduled sinking fund payment, any Junior Debt the net reduction in Investments (other than a purchasePermitted Investments) made pursuant to this first paragraph of Section 4.04 in any Person resulting from payments of interest on Indebtedness, dividends, repayments of loans or advances, or other transfers of assets, in each case to the Company or any Restricted Subsidiary (except to the extent any such payment is included in the calculation of Adjusted Consolidated Net Income), or from redesignations of Unrestricted Subsidiaries as Restricted Subsidiaries (valued in each case as provided in the definition of "Investments"), not to exceed the amount of Investments previously made by the Company and any Restricted Subsidiary in such Person. The foregoing provision shall not be violated by reason of: (i) the payment of any dividend within 60 days after the date of declaration thereof if, at said date of declaration, such payment would comply with the foregoing paragraph; (ii) the redemption, repurchase, redemption, defeasance or other acquisition or retirement for value of Indebtedness that is subordinated in anticipation right of satisfying a sinking fund obligationpayment to the Securities including premium, principal installment if any, and accrued and unpaid interest, with the proceeds of, or final maturityin exchange for, in each case due within one year Indebtedness Incurred under clause (iii) of the date second paragraph of such purchase, repurchase, redemption, defeasance Section 4.03; (iii) the declaration or other acquisition or retirement), or (iv) make any Investment (other than a Permitted Investment) in any Person (any such dividend, distribution, purchase, repurchase, redemption, defeasance, other acquisition or retirement or Investment being herein referred to as a “Restricted Payment”), if at payment of dividends on the time Common Stock of the Borrower or such Restricted Subsidiary makes such Restricted Payment after giving effect thereto:50 43

Limitation on Restricted Payments. The Company (ai) The Borrower shall will not, and shall not permit any Restricted Subsidiary, directly or indirectly, to (i) declare or pay any dividend dividend, or make any distribution on distribution, of any kind or character (whether in cash, property or securities) in respect of any class of its Capital Stock or to the holders of any class of its Capital Stock (including any such payment in connection with any merger or consolidation to which the Borrower is a party) except (x) other than dividends or distributions payable solely in its Capital Stock (other than Disqualified Stock) and (y) dividends or distributions payable to the Borrower or any Restricted Subsidiary (and, in the case of any such Restricted Subsidiary making such dividend or distribution, to other holders shares of its Capital Stock on no more than a pro rata basisor in options, measured by valuewarrants or other rights to acquire its Capital Stock), (ii) will not, and will not permit any Subsidiary of the Company to, directly or indirectly, purchase, redeem or otherwise acquire or retire for value (a) any Capital Stock of the Company or any Related Person of the Company or (b) any options, warrants or rights to purchase or acquire shares of Capital Stock of the Company or any Related Person of the Company other than any such purchase, redemption, acquisition or retirement in which all of the value resulting therefrom is paid to the Company or a Wholly-Owned Subsidiary, (iii) will not make, or permit any Subsidiary of the Company to make, any Investment in, or payment on a Guarantee of any obligation of, any Affiliate or any Related Person, other than the Company, a Wholly-Owned Subsidiary of the Company or a Person which is a Subsidiary after such Investment, (iv) will not, and will not permit any Subsidiary of the Company to, redeem, defease (including, but not limited to, legal or covenant defeasance), repurchase (including pursuant to any provision for repayment at the option of the holder thereof), retire or otherwise acquire for value any Capital Stock of the Borrower held by Persons other than the Borrower or a Restricted Subsidiary (other than any acquisition of Capital Stock deemed to occur upon the exercise of options if such Capital Stock represents a portion of the exercise price thereof), (iii) voluntarily purchase, repurchase, redeem, defease or otherwise voluntarily acquire or retire for value, value prior to any scheduled maturity, scheduled mandatory repayment or scheduled mandatory sinking fund payment, any Junior Debt (other than a purchasethe Notes) which is subordinate in right of payment to the Notes or the Guarantee, repurchaseand (v) will not, redemption, defeasance or other acquisition or retirement for value in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case due within one year and will not permit any Subsidiary of the date of such purchaseCompany to, repurchase, redemption, defeasance or other acquisition or retirement), or (iv) make any Investment (other than a Permitted Investment) in any Person Unrestricted Subsidiary (any such dividend, distribution, purchase, repurchase, redemption, defeasance, other acquisition or retirement or Investment the transactions described in Clauses (i) through (v) above being herein referred to herein as a “Restricted PaymentPayments”), if at the time the Borrower or such Restricted Subsidiary makes such Restricted Payment after giving effect theretothereof: