Common use of million Clause in Contracts

million. The foregoing provisions will not prohibit (i) the payment of any dividend within 60 days after the date of declaration thereof, if at said date of declaration such payment would have complied with the provisions of this Indenture; (ii) the redemption, repurchase, retirement, defeasance or other acquisition of any subordinated Indebtedness or Equity Interests of the Company in exchange for, or out of the net cash proceeds of (x) the substantially concurrent sale (other than to a Restricted Subsidiary of the Company) of, other Equity Interests of the Company (other than any Disqualified Stock) or (y) a substantially concurrent contribution of cash to the common equity of the Company; provided that the amount of any such net cash proceeds that are utilized for any such redemption, repurchase, retirement, defeasance or other acquisition shall be excluded from clause (c) (ii) of the preceding paragraph; (iii) the defeasance, redemption, repurchase or other acquisition of subordinated Indebtedness with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness; (iv) the payment of any dividend by a Restricted Subsidiary of the Company to the holders of its common Equity Interests on a pro rata basis; and (v) the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company held by any member of the Company's (or any of its Restricted Subsidiaries') management (or any estate, heir or legatee of any such member); provided that the aggregate price paid for all such purchased, redeemed, acquired or retired Equity Interests shall not exceed $250,000 in any twelve-month period and no Default or Event of Default shall have occurred and be continuing immediately after such transaction. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default. For purposes of making such determination, all outstanding Investments by the Company and its Restricted Subsidiaries (except to the extent repaid in cash) in the Subsidiary so designated will be deemed to be Restricted Payments or, at the election of the Company Permitted Investments (if in compliance with such definition) at the time of such designation and will reduce the amount available for Restricted Payments under the first paragraph of this covenant or Permitted Investments as applicable. All such outstanding Investments will be deemed to constitute Investments in an amount equal to the fair market value of such Investments at the time of such designation. Such designation will only be permitted if such Restricted Payment or Permitted Investments, as applicable, would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. The amount of all Restricted Payments (other than cash) shall be the fair market value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall be determined by the Board of Directors whose resolution with respect thereto shall be delivered to the Trustee, such determination to be based upon an opinion or appraisal issued by an accounting, appraisal or investment banking firm of national standing if such fair market value exceeds $5.0 million. Not later than the date of making any Restricted Payment, the Company shall deliver to the Trustee an Officers' Certificate stating that such Restricted Payment is permitted and setting forth the basis upon which the calculations required by this Section 4.07 were computed, together with a copy of any fairness opinion or appraisal required by this Indenture.

million. The foregoing preceding provisions will shall not prohibit prohibit: (i) the payment of any dividend within 60 days after the date of declaration thereof, if at said date of declaration declaration, such payment would have complied with the provisions of this Indenture; (ii) the redemption, repurchase, retirement, defeasance or other acquisition of any subordinated Indebtedness of the Company or any Guarantor or of any Equity Interests of the Company in exchange for, or out of the net cash proceeds of (x) the substantially concurrent sale sale, issuance of or contribution for, (other than to a Restricted Subsidiary of the Company) of), other Equity Interests of the Company (other than any Disqualified Stock) or (y) a substantially concurrent contribution of cash to the common equity of the Company); provided that the amount of any such net cash proceeds that are utilized for any such payment, redemption, repurchase, retirement, defeasance or defeasance, other acquisition or dividend or distribution shall be excluded from clause (c) (ii) of the preceding paragraph; (iii) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the defeasance, redemption, repurchase or other acquisition of subordinated Indebtedness with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness; (iv) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the payment of any dividend or distribution by a Restricted Subsidiary of the Company to the holders of its common Equity Interests on a pro rata basis; and (v) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company held by any member present, former or future employee, director or Consultant of the Company's (or any of its Restricted Subsidiaries') management (Subsidiaries or any estate, heir parent of the Company) pursuant to any management equity subscription agreement or legatee stock option agreement in effect as of the date of this Indenture or any such member)other similar agreement; provided that the aggregate price paid for all such purchasedrepurchased, redeemed, acquired or retired Equity Interests shall not exceed $250,000 2.0 million in any twelve-month period (with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $4.0 million in any calendar year); provided that such amount in any calendar year may be increased by an amount not to exceed (A) the cash proceeds from the sale of Equity Interests of the Company, any parent of the Company or any of its Restricted Subsidiaries to present, former or future directors, Consultants or employees of the Company, its Restricted Subsidiaries or any parent of the Company that occurred since February 20, 2001 (to the extent the cash proceeds from the sale of such Equity Interest have not otherwise been included in clause (c) of the immediately preceding paragraph), plus (B) the cash proceeds of key man life insurance policies received by the Company, its Restricted Subsidiaries or any parent of the Company since February 20, 2001; and provided that cancellation of Indebtedness owing to the Company from present, former or future directors, Consultants, or employees of the Company, any of its Restricted Subsidiaries or any parent of the Company the proceeds of which were used solely to purchase Equity Interests of the Company will not be deemed to constitute a Restricted Payment so long as the value of such Equity Interests issued did not increase clause (c) of the preceding paragraph; (vi) so long as no Default or Event of Default shall have has occurred and is continuing or would be continuing immediately caused thereby, Restricted Investments made after such transaction. The Board the date of Directors may designate this Indenture having an aggregate Fair Market Value, taken together with all other Investments made pursuant to this clause (vi) and, without duplication, Investments made pursuant to the this clause (vi) and, without duplication, Investments made pursuant to the comparable clause of the indentures relating to the Existing Notes that are at that time outstanding (without giving effect to any Restricted Subsidiary write-up, write-off or write-down), not to be an Unrestricted Subsidiary exceed 5% of the Company's Consolidated Tangible Assets as of the end of the fiscal quarter most recently completed (with Fair Market Value of each Investment being measured at the time made and without giving effect to subsequent changes in value); (vii) repurchases of Equity Interests deemed to occur upon exercise of stock options if such designation Equity Interests represent a portion of the exercise price of such options; (viii) so long as no Default or Event of Default has occurred and is continuing or would not cause a Default. For purposes be caused thereby, the payment of making such determination, all outstanding Investments dividends on the Company's Capital Stock of up to 6% per annum of the net proceeds received by the Company and in its Restricted March, 2002 initial public offering; (ix) Investments in Unrestricted Subsidiaries that are made with Excluded Contributions; (except to the extent repaid x) non-cash Investments in cash) Unrestricted Subsidiaries in the Subsidiary form of administrative, financial, accounting, management, or other similar services (together with a non-cash allocation of corporate overhead), in each case in the ordinary course of business; (xi) so designated will long as no Default or Event of Default has occurred and is continuing or would be deemed to be Restricted Payments orcaused thereby, at the election payment of dividends on Disqualified Stock which is issued in accordance with Section 4.09 hereof; and (xii) transactions contemplated by the offering memorandum dated September 24, 2003 in connection with the issuance of the Company Permitted Investments (if in compliance with such definition) at the time of such designation and will reduce the amount available for Restricted Payments Notes under the first paragraph caption "Use of this covenant or Permitted Investments as applicable. All such outstanding Investments will be deemed to constitute Investments in an amount equal to the fair market value of such Investments at the time of such designation. Such designation will only be permitted if such Restricted Payment or Permitted Investments, as applicable, would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted SubsidiaryProceeds". The amount of all Restricted Payments (other than cash) shall be the fair market value Fair Market Value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued to or by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. The ; provided that, notwithstanding the other provisions of this Indenture, with respect to this covenant, an MAI appraiser, accounting firm or valuation firm with experience in such valuation and not affiliated with the Company shall be required if the fair market value of any non-cash such Restricted Payment shall be determined by the Board or Restricted Payments for any series of Directors whose resolution with respect thereto shall be delivered to the Trustee, such determination to be based upon an opinion or appraisal issued by an accounting, appraisal or investment banking firm of national standing if such fair market value transactions exceeds $5.0 2.0 million. Not later than the date of making any Restricted PaymentAt least quarterly, the Company shall deliver to the Trustee an Officers' Certificate stating that all Restricted Payments during such Restricted Payment is quarter were permitted and setting forth the basis upon which the calculations required by this Section 4.07 were computed, together with a copy of any fairness opinion or appraisal required by this Indenture. If a Guarantee constituted a Restricted Investment at the time made, then the payment under such Guarantee shall not constitute an additional Restricted Investment. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default or an Event of Default. In the event of any such designation, all outstanding Investments owned by the Company and its Restricted Subsidiaries in the Subsidiary so designated shall be deemed to be an Investment made as of the time of such designation and shall reduce the amount available for Restricted Payments under the first paragraph of this Section 4.07 or Permitted Investments, as applicable. All such outstanding Investments shall be deemed to constitute Restricted Investments in an amount equal to the fair market value of such Investments at the time of such designation. Such designation shall only be permitted if such Restricted Payment would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if such redesignation would not cause a Default or an Event of Default. Any such designation by the Board of Directors shall be evidenced to the Trustee by filing with the Trustee a certified copy of the board resolution giving effect to such designation and an Officers' Certificate certifying that such designation complied with the foregoing conditions and was permitted by this Section 4.07. If, at any time, any Unrestricted Subsidiary would fail to meet the definition of an Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary of the Company as of such date (and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09 hereof, the Company shall be in default of Section 4.09 hereof). The Board of Directors of the Company may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided that such designation shall be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of the Company of any outstanding Indebtedness of such Unrestricted Subsidiary and such designation shall only be permitted if (a) such Indebtedness is permitted under Section 4.09 hereof, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period, and (b) no Default or Event of Default would be in existence following such designation.

million. The foregoing provisions will not prohibit (i) the payment of any dividend within 60 days after the date of declaration thereof, if at said date of declaration such payment would have complied with the provisions of this Indenture; (ii) the redemption, repurchase, retirement, defeasance or other acquisition of any subordinated Indebtedness or Equity Interests of the Company or any Guarantor in exchange for, or out of the net cash proceeds of (x) the substantially concurrent sale (other than to a Restricted Subsidiary of the Company) of, other Equity Interests of the Company (other than any Disqualified Stock) or (y) a substantially concurrent contribution of cash to the common equity of the Company); provided that the amount of any such net cash proceeds that are utilized for any such redemption, repurchase, retirement, defeasance or other acquisition shall be excluded from clause (c) (iic)(ii) of the preceding paragraph; (iii) the defeasance, redemption, repurchase repurchase, retirement or other acquisition of subordinated Indebtedness in exchange for, or with the net cash proceeds from from, an incurrence of Permitted Refinancing Indebtedness; (iv) the payment of any dividend (or the making of a similar distribution or redemption) by a Restricted Subsidiary of the Company to the holders of its common Equity Interests on a pro rata basis; and (v) so long as no Default or Event of Default shall have occurred and is continuing, the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company Company, Holdings or any Restricted Subsidiary of the Company, held by any member of the Company's (or any of its Restricted Subsidiaries') management (management, employees or consultants pursuant to any estatemanagement, heir employee or legatee consultant equity subscription agreement or stock option agreement in effect as of any such member)the date hereof; provided that the aggregate price paid for all such purchasedrepurchased, redeemed, acquired or retired Equity Interests shall not exceed (1) $250,000 1.5 million in any twelve-month period and (2) in the aggregate, the sum of (A) $7.0 million and (B) the aggregate cash proceeds received by the Company from any reissuance of Equity Interests by Holdings or the Company to members of management of the Company and its Subsidiaries (provided that the cash proceeds referred to in this clause (B) shall be excluded from clause (c)(ii) of the preceding paragraph); (vi) payments required to be made under the Tax Sharing Agreement; (vii) distributions made by the Company on the date hereof, the proceeds of which are utilized solely to consummate the Recapitalization; (viii) the payment of dividends or the making of loans or advances by the Company to Holdings not to exceed $1.5 million in any fiscal year for costs and expenses incurred by Holdings in its capacity as a holding company or for services rendered by Holdings on behalf of the Company; (ix) so long as no Default or Event of Default shall have has occurred and be is continuing, the declaration and payment of dividends to holders of any class or series of Disqualified Stock of the Company or any Guarantor issued after the date hereof in accordance with Section 4.09; and (x) so long as (A) no Default or Event of Default has occurred and is continuing and (B) immediately before and immediately after giving effect thereto, the Company would have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the first paragraph described under Section 4.09, (I) from and after April 15, 2003, payments of cash dividends to Holdings in an amount sufficient to enable Holdings to make payments of interest required to be made in respect of the Holdings Senior Discount Debentures in accordance with the terms thereof in effect on the date hereof, provided that such transactioninterest payments are made with the proceeds of such dividends, and (II) a $16.0 million cash dividend that the Company shall be entitled to declare and pay to Holdings on April 15, 2003 to enable Holdings to redeem $33.2 million aggregate principal amount at maturity of the Holdings Senior Discount Debentures as required by the terms of the Holdings Senior Discount Debentures in accordance with such terms in effect on the date hereof, provided that such redemption is made with the proceeds of such dividend. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default or an Event of Default. For purposes of making such determination, all outstanding Investments by the Company and its Restricted Subsidiaries (except to the extent repaid in cash) in the Subsidiary so designated will be deemed to be Restricted Payments or, at the election of the Company Permitted Investments (if in compliance with such definition) at the time of such designation and will reduce the amount available for Restricted Payments under the first paragraph of this covenant or Permitted Investments as applicablecovenant. All such outstanding Investments will be deemed to constitute Investments in an amount equal to the greater of (i) the net book value of such Investments at the time of such designation and (ii) the fair market value of such Investments at the time of such designation. Such designation will only be permitted if such Restricted Payment or Permitted Investments, as applicable, would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. The amount of all (i) Restricted Payments (other than cash) shall be the fair market value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted PaymentPayment and (ii) Qualified Proceeds (other than cash) shall be the fair market value on the date of receipt thereof by the Company of such Qualified Proceeds. The fair market value of any non-cash Restricted Payment and Qualified Proceeds shall be determined by the Board of Directors whose resolution with respect thereto shall be delivered to the Trustee, such determination to be based upon an opinion or appraisal issued by an accounting, appraisal or investment banking firm of national standing standing, if such fair market value exceeds $5.0 10.0 million. Not later than the date of making any Restricted Payment, the Company shall deliver to the Trustee an Officers' Certificate stating that such Restricted Payment is permitted and setting forth the basis upon which the calculations required by this Section 4.07 were computed, together with a copy of any fairness opinion or appraisal required by this Indenture.

million. The foregoing provisions will not prohibit (ia) the payment of any dividend within 60 days after the date of declaration thereof, if at said date of declaration such payment would have complied with the provisions of this Indenture, the Series A/B Indenture, the Series D Indenture and the Series F Indenture; (iib) the redemption, repurchase, retirement, defeasance or other acquisition of any subordinated Indebtedness or Equity Interests of the Company in exchange for, or out of the net cash proceeds of (x) the substantially concurrent sale (other than to a Restricted Subsidiary of the Company) of, other Equity Interests of the Company (other than any Disqualified Stock) or (y) a substantially concurrent contribution of cash to the common equity of the Company; ), provided that the amount of any such net cash proceeds that are utilized for any such redemption, repurchase, retirement, defeasance or other acquisition shall be excluded from clause (c) (iiiii)(B) of the preceding paragraph; (iiic) the defeasance, redemption, repurchase repurchase, retirement or other acquisition of subordinated Indebtedness with the net cash proceeds from an incurrence of of, or in exchange for, Permitted Refinancing Indebtedness; (ivd) the payment of any dividend or distribution by a Restricted Subsidiary of the Company to the holders to the Company or any Wholly Owned Restricted Subsidiary; (e) so long as no Default or Event of its common Equity Interests on a pro rata basis; Default shall have occurred and (v) be continuing, the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company held by any member employee of the Company's (or any of its Restricted Subsidiaries') management (or any estate, heir or legatee of any such member); provided that the aggregate price paid for all such purchasedrepurchased, redeemed, acquired or retired Equity Interests shall not exceed $250,000 500,000 in any twelve-month period calendar year; and no Default (f) the acquisition of Equity Interests of the Company in connection with the exercise of stock options or Event stock appreciation rights by way of Default shall have occurred and be continuing immediately after such transactioncashless exercise or in connection with the satisfaction of withholding tax obligations. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default. For purposes of making such determination, all outstanding Investments by the Company and its Restricted Subsidiaries (except to the extent repaid in cash) in the Subsidiary so designated will shall be deemed to be Restricted Payments or, at the election of the Company Permitted Investments (if in compliance with such definition) at the time of such designation and will reduce the amount available for Restricted Payments under the first paragraph of this covenant or Permitted Investments as applicabledesignation. All such outstanding Investments will be deemed to constitute Investments in an amount equal to the greater of (a) the net book value of such Investments at the time of such designation and (b) the fair market value of such Investments at the time of such designation. Such designation will shall only be permitted if such Restricted Payment or Permitted Investments, as applicable, would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors of the Company may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary, provided that such designation shall be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of the Company of any outstanding Indebtedness of such Unrestricted Subsidiary and such designation shall only be permitted if (a) such Indebtedness is permitted under Section 4.09 hereof, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period, and (b) no Default or Event of Default would be in existence following such designation. Any designation of a Subsidiary as an Unrestricted Subsidiary shall be evidenced to the Trustee by filing with the Trustee a certified copy of a resolution of the Board of Directors giving effect to such designation and an Officers' Certificate certifying that such designation complied with the terms of the definition of Unrestricted Subsidiary set forth in this Indenture and with this Section 4.07. The amount of all Restricted Payments (other than cash) shall be the fair market value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall be determined in the manner contemplated by the Board definition of Directors whose resolution with respect thereto the term "fair market value," and the results of such determination shall be evidenced by an Officers' Certificate delivered to the Trustee, such determination to be based upon an opinion or appraisal issued by an accounting, appraisal or investment banking firm of national standing if such fair market value exceeds $5.0 million. Not later than the date of making any Restricted Payment, the Company shall deliver to the Trustee an Officers' Certificate stating that such Restricted Payment is permitted and setting forth the basis upon which the calculations required by this Section 4.07 were computed, together with a copy of any fairness opinion or appraisal required by this Indenture.

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

million. The foregoing provisions will shall not prohibit (i1) the payment of any dividend within 60 days after the date of declaration thereof, if at said date of declaration such payment would have complied with the provisions of this Indenture; (ii2) the redemption, repurchase, retirement, defeasance retirement or other acquisition of any Equity Interests or subordinated Indebtedness or Equity Interests of the Company in exchange for, or out of the net cash proceeds of (x) of, the substantially concurrent sale (other than to a Restricted Subsidiary of the Company) of, of other Equity Interests of the Company (other than any Disqualified Stock) or (y) a substantially concurrent contribution of cash to the common equity of the Company); provided that the amount of any such net cash proceeds that are utilized for any such redemption, repurchase, retirement, defeasance retirement or other acquisition shall be excluded from clause (c) (iiC)(ii) of the preceding paragraph; (iii3) the defeasance, redemption, redemption or repurchase or other acquisition of subordinated Indebtedness with the net cash proceeds from an incurrence of a substantially concurrent issuance of Permitted Refinancing IndebtednessDebt in accordance with the provisions of Section 4.09 hereof; (iv4) the payment of any dividend by a Restricted Subsidiary of the Company of advances under the Split Dollar Agreement in an amount not to the holders of its common Equity Interests on a pro rata basis; and (v) the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company held by any member of the Company's (or any of its Restricted Subsidiaries') management (or any estate, heir or legatee of any such member); provided that the aggregate price paid for all such purchased, redeemed, acquired or retired Equity Interests shall not exceed $250,000 in any twelvefour-month period and no Default quarter period; (5) the repurchase or Event redemption from employees of Default shall have occurred and be continuing immediately after such transaction. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default. For purposes of making such determination, all outstanding Investments by the Company and its Restricted Subsidiaries (except to other than the extent repaid in cashPrincipal) in the Subsidiary so designated will be deemed to be Restricted Payments or, at the election of Capital Stock of the Company Permitted Investments (if in compliance with such definition) at the time of such designation and will reduce the amount available for Restricted Payments under the first paragraph of this covenant or Permitted Investments as applicable. All such outstanding Investments will be deemed to constitute Investments in an amount equal not to the fair market value exceed an aggregate of such Investments at the time of such designation. Such designation will only be permitted if such Restricted Payment or Permitted Investments, as applicable, would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. The amount of all Restricted Payments (other than cash) shall be the fair market value on $5.0 million since the date of this Indenture; (6) the Restricted Payment payment of dividends on the Series A or Series B Preferred Stock in accordance with the terms thereof as in effect on the Closing Date; provided, however, that cash dividends may not be paid on the Series A or Series B Preferred Stock pursuant to this clause (6) prior to July 1, 2002; (7) the issuance of Subordinated Exchange Notes in exchange for shares of the asset(s) Series A or securities proposed to be transferred or issued Series B Preferred Stock; provided that such issuance is permitted by Section 4.09 hereof; (8) in the event that the Company elects to issue Subordinated Exchange Notes in exchange for Series A or such Restricted SubsidiarySeries B Preferred Stock, as cash payments made in lieu of the case may beissuance of Subordinated Exchange Notes having a face amount less than $1,000 and any cash payments representing accrued and unpaid dividends in respect thereof, pursuant not to exceed $100,000 in the Restricted Payment. The fair market value of aggregate in any non-cash Restricted Payment shall be determined by the Board of Directors whose resolution with respect thereto shall be delivered to the Trustee, such determination to be based upon an opinion or appraisal issued by an accounting, appraisal or investment banking firm of national standing if such fair market value exceeds $5.0 million. Not later than the date of making any Restricted Payment, the Company shall deliver to the Trustee an Officers' Certificate stating that such Restricted Payment is permitted and setting forth the basis upon which the calculations required by this Section 4.07 were computed, together with a copy of any fairness opinion or appraisal required by this Indenture.fiscal year; and

million. The foregoing provisions will not prohibit (iA) the payment of any dividend within 60 days after the date of declaration thereof, if at said date of declaration such payment would have complied with the provisions of this Indenture; (iiB) the redemption, repurchase, retirement, defeasance retirement or other acquisition or retirement for value of any subordinated Indebtedness or Equity Interests of the Company in exchange for, or out of with the net cash proceeds of (x) of, the substantially concurrent sale (other than to a Restricted Subsidiary of the Company) of, of other Equity Interests of the Company (other than any Disqualified Stock) or (y) a substantially concurrent contribution of cash to the common equity of the Company; provided that the amount of any such net cash proceeds that are utilized for any such redemption, repurchase, retirement, defeasance or other acquisition shall be excluded from clause (c) (ii) of the preceding paragraph); (iiiC) the defeasance, redemption, repurchase or other acquisition of subordinated Indebtedness with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness; (iv) the payment of any dividend by a Restricted Subsidiary of the Company to the holders of its common Equity Interests on a pro rata basis; and (v) the repurchase, redemption retirement or other acquisition or retirement for value of any Indebtedness that is subordinated or pari passu in right of payment to the Notes in exchange for, or with the net cash proceeds of, a substantially concurrent issuance and sale (other than to a Restricted Subsidiary of the Company) of Equity Interests of the Company held by any member (other than Disqualified Stock); (D) the defeasance, redemption, repurchase, retirement or other acquisition or retirement for value of Indebtedness that is subordinated or pari passu in right of payment to the Company's Notes in exchange for, or with the net cash proceeds of, a substantially concurrent issue and sale (other than to the Company or any of its Restricted Subsidiaries') management of Refinancing Indebtedness; (or any estate, heir or legatee E) the repurchase of any Indebtedness subordinated or pari passu in right of payment to the Notes at a purchase price not greater than 101% of the principal amount of such member)Indebtedness in the event of a Change of Control in accordance with provisions similar to the covenant set forth in Section 4.14 hereof, provided that prior to or contemporaneously with such repurchase the Company has made the Change of Control Offer as provided in such covenant with respect to the Notes and has repurchased all Notes validly tendered for payment in connection with such Change of Control Offer; and (F) additional payments to current or former employees or directors of the Company for repurchases of stock, stock options or other equity interests, provided that the aggregate price paid for amount of all such purchased, redeemed, acquired or retired Equity Interests shall payments under this clause (F) does not exceed $250,000 500,000 in any twelve-month period year and $2.0 million in the aggregate. The Restricted Payments described in clauses (B), (C), (E) and (F) of the immediately preceding paragraph will be Restricted Payments that will be permitted to be taken in accordance with such paragraph but will reduce the amount that would otherwise be available for Restricted Payments under clause (iii) of the first paragraph of this section, and the Restricted Payments described in clauses (A) and (D) of the immediately preceding paragraph will be Restricted Payments that will be permitted to be taken in accordance with such paragraph and will not reduce the amount that would otherwise be available for Restricted Payments under clause (iii) of the first paragraph of this section. If an Investment results in the making of a Restricted Payment, the aggregate amount of all Restricted Payments deemed to have been made as calculated under the foregoing provision will be reduced by the amount of any net reduction in such Investment (resulting from the payment of interest or dividends, loan repayment, transfer of assets or otherwise) to the extent such net reduction is not included in the Company's EBITDA; provided, however, that the total amount by which the aggregate amount of all Restricted Payments may be reduced may not exceed the lesser of (a) the cash proceeds received by the Company and its Restricted Subsidiaries in connection with such net reduction and (b) the initial amount of such Investment. If the aggregate amount of all Restricted Payments calculated under the foregoing provision includes an Investment in an Unrestricted Subsidiary or other Person that thereafter becomes a Restricted Subsidiary, such Investment will no Default longer be counted as a Restricted Payment for purposes of calculating the aggregate amount of Restricted Payments. For the purpose of making any calculations under this Indenture, (a) an Investment will include the fair market value of the net assets of any Restricted Subsidiary at the time that such Restricted Subsidiary is designated an Unrestricted Subsidiary and will exclude the fair market value of the net assets of any Unrestricted Subsidiary that is designated as a Restricted Subsidiary, (b) any property transferred to or Event from an Unrestricted Subsidiary will be valued at fair market value at the time of Default shall have occurred such transfer, provided that, in each case, the fair market value of an asset or property is as determined by the Board of Directors in good faith, and (c) subject to the foregoing, the amount of any Restricted Payment, if other than cash, will be continuing immediately after such transactiondetermined by the Board of Directors, whose good faith determination will be conclusive. The Board of Directors may designate any a Restricted Subsidiary to be an Unrestricted Subsidiary if in compliance with Section 4.17 hereof. Upon such designation would not cause a Default. For purposes of making such determinationdesignation, all outstanding Investments by the Company and its Restricted Subsidiaries (except to the extent repaid in cash) in the Subsidiary so designated will be deemed to be Restricted Payments or, at the election of the Company Permitted Investments (if in compliance with such definition) made at the time of such designation and will reduce the amount available for Restricted Payments under the first paragraph of this covenant or Permitted Investments as applicable. All such outstanding Investments will be deemed to constitute Investments in an amount equal to the fair market value of such Investments at the time of such designationSection 4.07. Such designation will only be permitted if such Restricted Payment or Permitted Investments, as applicable, would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. The amount of all Restricted Payments (other than cash) shall be the fair market value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall be determined by the Board of Directors whose resolution with respect thereto shall be delivered to the Trustee, such determination to be based upon an opinion or appraisal issued by an accounting, appraisal or investment banking firm of national standing if such fair market value exceeds $5.0 million. Not later than the date of making any Restricted Payment, the Company shall deliver to the Trustee an Officers' Certificate stating that such Restricted Payment is permitted and setting forth the basis upon which the calculations required by this Section 4.07 were computed, together with a copy of any fairness opinion or appraisal required by this Indenture.

million. The foregoing provisions will shall not prohibit (i) the payment of any dividend within 60 days after the date of declaration thereof, if at said date of declaration such payment would have complied with the provisions of this Indenture; (ii) the redemption, repurchase, retirement, defeasance or other acquisition of any pari passu or subordinated Indebtedness or Equity Interests of the Company in exchange for, or out of the net cash proceeds of (x) the substantially concurrent sale (other than to a Restricted Subsidiary of the Company) of, other Equity Interests of the Company (other than any Disqualified Stock) or (y) a substantially concurrent contribution of cash to the common equity of the Company); provided that the amount of any such net cash proceeds that are utilized for any such redemption, repurchase, retirement, defeasance or other acquisition shall be excluded from clause (c) (iic)(ii) of the preceding paragraph; (iii) the defeasance, redemption, repurchase or other acquisition of pari passu or subordinated Indebtedness with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness; (iv) the payment of any dividend by a Restricted Subsidiary of the Company to the holders of its common Equity Interests on a pro rata basis; and (v) the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company held by any member of the Company's (or any of its Restricted Subsidiaries') management (pursuant to any management equity subscription agreement or any estate, heir or legatee of any such member)stock option agreement; provided that the aggregate price paid for all such purchasedrepurchased, redeemed, acquired or retired Equity Interests shall not exceed $250,000 500,000 in any twelve-month period and no Default or Event of Default shall have occurred and be continuing immediately after such transaction. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default. For purposes of making such determination, all outstanding Investments by the Company and its Restricted Subsidiaries (except to the extent repaid in cash) in the Subsidiary so designated will shall be deemed to be Restricted Payments or, at the election of the Company Permitted Investments (if in compliance with such definition) at the time of such designation and will shall reduce the amount available for Restricted Payments under the first paragraph of this covenant or Permitted Investments as applicablecovenant. All such outstanding Investments will shall be deemed to constitute Investments in an amount equal to the fair market value of such Investments at the time of such designation. Such designation will shall only be permitted if such Restricted Payment or Permitted Investments, as applicable, would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. The amount of all Restricted Payments (other than cash) shall be the fair market value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall be determined by the Board of Directors whose resolution with respect thereto shall be delivered to the Trustee, such determination to be based upon an opinion or appraisal issued by an accounting, appraisal or investment banking firm of national standing if such fair market value exceeds $5.0 10.0 million. Not later than the date of making any Restricted Payment, the Company shall deliver to the Trustee an Officers' Certificate stating that such Restricted Payment is permitted and setting forth the basis upon which the calculations required by this Section 4.07 were computed, together with a copy of any fairness opinion or appraisal required by this Indenture.

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

million. The foregoing provisions will shall not prohibit (i) the payment of any dividend within 60 days after the date of declaration thereof, if at said date of declaration such payment would have complied with the provisions of this Indenture; (ii) the redemption, repurchase, retirement, defeasance or other acquisition of any Pari Passu Indebtedness or subordinated Indebtedness or Equity Interests of the Company in exchange for, or out of the net cash proceeds of (x) the substantially concurrent sale (other than to a Restricted Subsidiary of the Company) of, other Equity Interests of or a capital contribution to the Company (other than any Disqualified Stock) or (y) a substantially concurrent contribution of cash to the common equity of the Company); provided that the amount of any such net cash proceeds that are utilized for any such redemption, repurchase, retirement, defeasance or other acquisition shall be excluded from clause (c) (ii) of the preceding paragraph; (iii) the defeasance, redemption, repurchase or other acquisition of Pari Passu Indebtedness or subordinated Indebtedness made by an exchange for, or with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness; (iv) the payment of any dividend by a Restricted Subsidiary of the Company to the holders of its common Equity Interests on a pro rata basis; and (v) the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Subsidiary of the Company held by any member Management Investor pursuant to any management equity subscription agreement or stock option agreement in effect as of the Company's (or any date of its Restricted Subsidiaries') management (or any estate, heir or legatee of any such member)this Indenture; provided that the aggregate price paid for all such purchasedrepurchased, redeemed, acquired or retired Equity Interests shall not exceed $250,000 750,000 in any twelve-month period (which amount shall be increased by the amount of any net cash proceeds received from the sale after the date of this Indenture of Equity Interests (other than Disqualified Stock) to any Management Investor that have not otherwise been applied to the payment of (x) Restricted Payments pursuant to the terms of clause (c) of the preceding paragraph or (y) the aggregate price for all repurchased, redeemed, acquired or retired Equity Interests pursuant to the terms of this clause (v) exceeding $750,000 in any twelve month period) and no Default or Event of Default shall have occurred and be continuing immediately after such transaction; and (vi) the purchase of Equity Interests in the Company pursuant to the Merger Agreement. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default; provided that in no event shall the business operated on the date of this Indenture by any Guarantor existing on the date of this Indenture be transferred to or held by an Unrestricted Subsidiary. For purposes of making such determination, all outstanding Investments by the Company and its Restricted Subsidiaries (except to the extent repaid in cash) in the Subsidiary so designated will shall be deemed to be Restricted Payments or, at the election of the Company Permitted Investments (if in compliance with such definition) at the time of such designation and will shall reduce the amount available for Restricted Payments under the first paragraph of this covenant or Permitted Investments as applicableSection 4.07. All such outstanding Investments will shall be deemed to constitute Investments in an amount equal to the fair market value of such Investments at the time of such designation. Such designation will shall only be permitted if such Restricted Payment or Permitted Investments, as applicable, would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. The amount of all Restricted Payments (other than cash) shall be the fair market value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall be determined in good faith by the Board of Directors whose resolution with respect thereto shall be delivered to of the TrusteeCompany and evidenced by a Board Resolution, such determination to be based upon an opinion or appraisal issued by an accounting, appraisal or investment banking firm of national standing if such fair market value exceeds $5.0 3.0 million. Not later than the date of making any Restricted Payment, the Company shall deliver to the Trustee an Officers' Certificate stating that such Restricted Payment is permitted and setting forth the basis upon which the calculations required by this Section 4.07 were computed, together with a copy of any fairness opinion or appraisal required by this Indenture.

million. The foregoing provisions will not prohibit (iA) the payment of any dividend within 60 days after the date of declaration thereof, if at said date of declaration such payment would have complied with the provisions of this Indenture; (iiB) the redemption, repurchase, retirement, defeasance retirement or other acquisition or retirement for value of any subordinated Indebtedness or Equity Interests of the Company in exchange for, or out of with the net cash proceeds of (x) of, the substantially concurrent sale (other than to a Restricted Subsidiary of the Company) of, of other Equity Interests of the Company (other than any Disqualified Stock) or (y) a substantially concurrent contribution of cash to the common equity of the Company; provided that the amount of any such net cash proceeds that are utilized for any such redemption, repurchase, retirement, defeasance or other acquisition shall be excluded from clause (c) (ii) of the preceding paragraph); (iiiC) the defeasance, redemption, repurchase or other acquisition of subordinated Indebtedness with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness; (iv) the payment of any dividend by a Restricted Subsidiary of the Company to the holders of its common Equity Interests on a pro rata basis; and (v) the repurchase, redemption retirement or other acquisition or retirement for value of any Indebtedness that is subordinated or pari passu in right of payment to the Notes in exchange for, or with the net cash proceeds of, a substantially concurrent issuance and sale (other than to a Restricted Subsidiary of the Company) of Equity Interests of the Company held by any member (other than Disqualified Stock); (D) the defeasance, redemption, repurchase, retirement or other acquisition or retirement for value of Indebtedness that is subordinated or pari passu in right of payment to the Company's Notes in exchange for, or with the net cash proceeds of, a substantially concurrent issue and sale (other than to the Company or any of its Restricted Subsidiaries') management of Refinancing Indebtedness; (or any estate, heir or legatee E) the repurchase of any Indebtedness subordinated or pari passu in right of payment to the Notes at a purchase price not greater than 101% of the principal amount of such member)Indebtedness in the event of a Change of Control in accordance with provisions similar to the covenant set forth in Section 4.14 hereof, provided that prior to or contemporaneously with such repurchase the Company has made the Change of Control Offer as provided in such covenant with respect to the Notes and has repurchased all Notes validly tendered for payment in connection with such Change of Control Offer; and (F) additional payments to current or former employees or directors of the Company for repurchases of stock, stock options or other equity interests, provided that the aggregate price paid for amount of all such purchased, redeemed, acquired or retired Equity Interests shall payments under this clause (F) does not exceed $250,000 500,000 in any twelve-month period year and $2.0 million in the aggregate. The Restricted Payments described in clauses (B), (C), (E) and (F) of the immediately preceding paragraph will be Restricted Payments that will be permitted to be taken in accordance with such paragraph but will reduce the amount that would otherwise be available for Restricted Payments under clause (iii) of the first paragraph of this section, and the Restricted Payments described in clauses (A) and (D) of the immediately preceding paragraph will be Restricted Payments that will be permitted to be taken in accordance with such paragraph and 37 will not reduce the amount that would otherwise be available for Restricted Payments under clause (iii) of the first paragraph of this section. If an Investment results in the making of a Restricted Payment, the aggregate amount of all Restricted Payments deemed to have been made as calculated under the foregoing provision will be reduced by the amount of any net reduction in such Investment (resulting from the payment of interest or dividends, loan repayment, transfer of assets or otherwise) to the extent such net reduction is not included in the Company's EBITDA; provided, however, that the total amount by which the aggregate amount of all Restricted Payments may be reduced may not exceed the lesser of (a) the cash proceeds received by the Company and its Restricted Subsidiaries in connection with such net reduction and (b) the initial amount of such Investment. If the aggregate amount of all Restricted Payments calculated under the foregoing provision includes an Investment in an Unrestricted Subsidiary or other Person that thereafter becomes a Restricted Subsidiary, such Investment will no Default longer be counted as a Restricted Payment for purposes of calculating the aggregate amount of Restricted Payments. For the purpose of making any calculations under this Indenture, (a) an Investment will include the fair market value of the net assets of any Restricted Subsidiary at the time that such Restricted Subsidiary is designated an Unrestricted Subsidiary and will exclude the fair market value of the net assets of any Unrestricted Subsidiary that is designated as a Restricted Subsidiary, (b) any property transferred to or Event from an Unrestricted Subsidiary will be valued at fair market value at the time of Default shall have occurred such transfer, provided that, in each case, the fair market value of an asset or property is as determined by the Board of Directors in good faith, and (c) subject to the foregoing, the amount of any Restricted Payment, if other than cash, will be continuing immediately after such transactiondetermined by the Board of Directors, whose good faith determination will be conclusive. The Board of Directors may designate any a Restricted Subsidiary to be an Unrestricted Subsidiary if in compliance with Section 4.17 hereof. Upon such designation would not cause a Default. For purposes of making such determinationdesignation, all outstanding Investments by the Company and its Restricted Subsidiaries (except to the extent repaid in cash) in the Subsidiary so designated will be deemed to be Restricted Payments or, at the election of the Company Permitted Investments (if in compliance with such definition) made at the time of such designation and will reduce the amount available for Restricted Payments under the first paragraph of this covenant or Permitted Investments as applicable. All such outstanding Investments will be deemed to constitute Investments in an amount equal to the fair market value of such Investments at the time of such designationSection 4.07. Such designation will only be permitted if such Restricted Payment or Permitted Investments, as applicable, would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. The amount of all Restricted Payments (other than cash) shall be the fair market value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall be determined by the Board of Directors whose resolution with respect thereto shall be delivered to the Trustee, such determination to be based upon an opinion or appraisal issued by an accounting, appraisal or investment banking firm of national standing if such fair market value exceeds $5.0 million. Not later than the date of making any Restricted Payment, the Company shall deliver to the Trustee an Officers' Certificate stating that such Restricted Payment is permitted and setting forth the basis upon which the calculations required by this Section 4.07 were computed, together with a copy of any fairness opinion or appraisal required by this Indenture.

million. The foregoing provisions will not prohibit (i) the payment of any dividend within 60 days after the date of declaration thereof, if at said date of declaration such payment would have complied with the provisions of this the Indenture; (ii) the redemption, repurchase, retirement, defeasance or other acquisition of any subordinated Indebtedness or Equity Interests of the Company in exchange for, or out of the net cash proceeds of (x) the substantially concurrent sale (other than to a Restricted Subsidiary of the Company) of, other Equity Interests of the Company (other than any Disqualified Stock) or (y) a substantially concurrent contribution of cash to the common equity of the Company); provided that the amount of any such net cash proceeds that are utilized for any such redemption, repurchase, retirement, defeasance or other acquisition shall be excluded from clause (c) (ii2) of the preceding paragraph; (iii) the defeasance, redemption, repurchase repurchase, retirement, defeasance or other acquisition of subordinated Indebtedness with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness; (iv) the payment of any dividend by a Restricted Subsidiary of the Company to the holders of its common Equity Interests on a pro rata basis; and (v) the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company held by any member of the Company's (or any of its Restricted Subsidiaries') management (or board of directors or any estate, heir or legatee of any such member)employee stock ownership plan; provided that the aggregate price paid for all such purchasedrepurchased, redeemed, acquired or retired Equity Interests shall not exceed $250,000 1.0 million in any twelve-month period period; (v) Tax Distributions in respect of periods when the Company is an S Corporation, (vi) Committed Restricted Investments; (vii) Restricted Investments consisting of payments pursuant to guaranties (not prohibited by the provisions of this Indenture) of Indebtedness; (viii) Restricted Investments consisting of payments pursuant to reimbursement obligations in respect of letters of credit (not prohibited by the provisions of the Indenture) securing Indebtedness or other obligations; and (ix) Restricted Investments consisting of payments pursuant to guaranties (not prohibited by the provisions of the Indenture) of obligations (other than Indebtedness), provided, however, that at the time of, and after giving effect to, any Restricted Payment permitted under clauses (i) through (iv) no Default or Event of Default shall have occurred and be continuing immediately after such transaction. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default. For purposes of making such determination, all outstanding Investments by the Company and its Restricted Subsidiaries (except to the extent repaid in cash) in the Subsidiary so designated will be deemed to be Restricted Payments or, at the election of the Company Permitted Investments (if in compliance with such definition) at the time of such designation and will reduce the amount available for Restricted Payments under the first paragraph of this covenant or Permitted Investments as applicable. All such outstanding Investments will be deemed to constitute Investments in an amount equal to the fair market value of such Investments at the time of such designation. Such designation will only be permitted if such Restricted Payment or Permitted Investments, as applicable, would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiarycontinuing. The amount of all Restricted Payments (other than cash) shall be the fair market value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall be determined in good faith by the Board of Directors whose resolution with respect thereto shall be delivered to the Trustee. Notwithstanding the two preceding sentences, such determination to the amount of any Restricted Investment that is a guarantee of (or the furnishing of a letter or credit as security for) Indebtedness or other obligations shall be based upon an opinion or appraisal issued by an accounting, appraisal or investment banking firm as determined under the definition of national standing if such fair market value exceeds $5.0 million. "Investments." Not later than the date of making any Restricted Payment, the Company shall deliver to the Trustee an Officers' Certificate stating that such Restricted Payment is Payments were permitted and setting forth the basis upon which the calculations required by this Section 4.07 4.10 were computed. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default. For purposes of making such determination, together all outstanding Investments by the Company and its Restricted Subsidiaries (except to the extent repaid in cash) in the Subsidiary so designated will be deemed to be Restricted Payments at the time of such designation and will reduce the amount available for Restricted Payments under the first paragraph of this Section 4.10. All such outstanding Investments in the Subsidiary so designated will be deemed to constitute Investments in an amount equal to the sum of (a) the greater of (i) the net book value of such Investments at the time of such designation and (ii) the fair market value of such Investments at the time of such designation and (b) the amount of such Investments constituting a guarantee of (or the furnishing of a letter of credit as security for) Indebtedness or other obligations. Such designation will only be permitted if such Restricted Payment would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. Any such designation by the Board of Directors shall be evidenced to the Trustee by filing with the Trustee a certified copy of the Board Resolution giving effect to such designation and an Officers' Certificate certifying that such designation complied with the foregoing conditions. If, at any fairness opinion time, any Unrestricted Subsidiary would fail to meet the definition of an Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary of the Company as of such date (and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09 hereof, the Company shall be in default of such Section). The Board of Directors of the Company may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided that such designation shall be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of the Company of any outstanding Indebtedness of such Unrestricted Subsidiary and such designation shall only be permitted if (i) such Indebtedness is permitted under Section 4.09 hereof, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period, and (ii) no Default or appraisal required by this IndentureEvent of Default would be in existence following such designation.

million. The foregoing provisions will not prohibit (i) the payment of any dividend within 60 days after the date of declaration thereof, if at said date of declaration such payment would have complied with the provisions of this Indenture; (ii) the making of any Restricted Investment in exchange for, or out of the proceeds of, the substantially concurrent sale (other than to a Subsidiary of the Company) of, or from substantially concurrent additional capital contributions in respect of, Equity Interests of the Company (other than Disqualified Stock); provided that the amount of any such cash proceeds that are utilized for any such Restricted Investment shall be excluded from clause (c)(ii) of the preceding paragraph; (iii) the redemption, repurchase, retirement, defeasance retirement or other acquisition of any subordinated Indebtedness or Equity Interests of the Company in exchange for, or out of the net cash proceeds of (x) of, the substantially concurrent sale (other than to a Restricted Subsidiary of the Company) of, or from substantially concurrent additional capital contributions (other than from a Subsidiary of the Company) in respect of, other Equity Interests of the Company (other than any Disqualified Stock) or (y) a substantially concurrent contribution of cash to the common equity of the Company); provided that the amount of any such net cash proceeds that are utilized for any such redemption, repurchase, retirement, defeasance retirement or other acquisition shall be excluded from clause (c) (iic)(ii) of the preceding paragraph; (iiiiv) the defeasance, redemption, redemption or repurchase or other acquisition of subordinated Indebtedness with the net cash proceeds from (X) an incurrence of Permitted Refinancing IndebtednessIndebtedness or (Y) the substantially concurrent sale (other than to a Subsidiary of the Company) of, or from substantially concurrent additional capital contributions (other than from a Subsidiary of the Company) in respect of, Equity Interests of the Company (other than Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such defeasance, redemption or repurchase shall be excluded from clause (c)(ii) of the preceding paragraph; (ivv) the payment of any dividend or other distribution made by a Restricted any Wholly Owned Subsidiary of the Company to another Wholly Owned Subsidiary of the holders of its common Equity Interests on a pro rata basisCompany or to the Company; and (vvi) the repurchase, redemption retirement or other acquisition or retirement for value of any common Equity Interests of the Company held by any member future, present or former employee or director of the Company or any of the Company's (Restricted Subsidiaries pursuant to any management equity plan or stock option plan or any other management or employee benefit plan or agreement in connection with the termination of its such person's employment for any reason (including by reason of death or disability); provided, however, that the aggregate Restricted Subsidiaries'Payments made under this clause (vi) management do not exceed in any calendar year $2.5 million (or with unused amounts in any estate, heir or legatee calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $7.5 million in any such membercalendar year); provided further that such amount in any calendar year may be increased by an amount not to exceed (A) the aggregate price paid for all such purchased, redeemed, acquired or retired cash proceeds received by the Company from the sale of Equity Interests shall of the Company to members of management or directors of the Company and its Restricted Subsidiaries that occurs after the Issue Date (to the extent the cash proceeds from the sale of such Equity Interests have not exceed $250,000 otherwise been applied to the payment of Restricted Payments by virtue of the preceding paragraph (c)), plus (B) the cash proceeds of key man life insurance policies received by the Company and its Restricted Subsidiaries after the Issue Date, less (C) the amount of any Restricted Payments made pursuant to clauses (A) and (B) of this subparagraph (vi); provided however that in the case of any twelve-month period transaction described in clauses (ii) through (iv) and clause (vi) no Default or Event of Default shall will have occurred and be continuing immediately after such transaction. In determining the aggregate amount of Restricted Payments made after the date hereof, 100% of the amounts expended pursuant to the foregoing clauses (i) and (vi) shall be included in such calculation and none of the amounts expended pursuant to the foregoing clauses (ii), (iii), (iv) and (v) shall be included in such calculation. As of the date hereof, all of the Company's Subsidiaries were Restricted Subsidiaries. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default. For purposes of making such determination, all outstanding Investments by the Company and its Restricted Subsidiaries (except to the extent repaid in cash) in the Subsidiary so designated will be deemed to be Restricted Payments or, at the election of the Company Permitted Investments (if in compliance with such definition) at the time of such designation and will reduce the amount available for Restricted Payments under the first paragraph of this covenant or Permitted Investments as applicable. All such outstanding Investments will be deemed to constitute Investments in an amount equal to the fair market value of such Investments at the time of such designationcovenant. Such designation will only be permitted if such Restricted Payment or Permitted Investments, as applicable, would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. The amount of all Restricted Payments (other than cash) shall be the fair market value (evidenced by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the Trustee) on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company or such the applicable Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall be determined by the Board of Directors whose resolution with respect thereto shall be delivered to the Trustee, such determination to be based upon an opinion or appraisal issued by an accounting, appraisal or investment banking firm of national standing if such fair market value exceeds $5.0 million. Not later than the date of making any Restricted Payment, the Company shall deliver to the Trustee an Officers' Certificate stating that such Restricted Payment is permitted and setting forth the basis upon which the calculations calculation required by this Section 4.07 covenant were computed, together with a copy of any fairness opinion or appraisal required by this Indenturewhich calculations may be based upon the Company's latest available financial statements.

million. The foregoing provisions will not prohibit any of the following: (ia) the payment of any dividend within 60 days after the date of declaration thereof, if at said date of declaration such payment would have complied with the provisions of this Indenture; (iib) the redemption, repurchase, retirement, defeasance or other acquisition of any subordinated Indebtedness or Equity Interests of the Company in exchange for, or out of the net cash proceeds of (x) the substantially concurrent sale (other than to a Restricted Subsidiary of the Company) of, other Equity Interests of the Company (other than any Disqualified Stock) or (y) a substantially concurrent contribution of cash to the common equity of the Company; ), provided that the amount of any such net cash proceeds that are utilized for any such redemption, repurchase, retirement, defeasance or other acquisition shall be excluded from clause (c) (iiiii)(B) of the preceding paragraph; (iiic) the defeasance, redemption, repurchase repurchase, retirement or other acquisition of subordinated Indebtedness with the net cash proceeds from an incurrence of of, or in exchange for, Permitted Refinancing Indebtedness; (ivd) the payment of any dividend or distribution by a Restricted Subsidiary of the Company to the holders of its common Equity Interests on a pro rata basis; (e) so long as no Default or Event of Default shall have occurred and (v) be continuing, the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company held by any member employee of the Company's (Company or any of its Restricted Subsidiaries') management (or any estate, heir or legatee of any such member); provided that the aggregate price paid for all such purchasedrepurchased, redeemed, acquired or retired Equity Interests shall not exceed $250,000 1.0 million in any twelve-month period calendar year; and no Default (f) the acquisition of Equity Interests of the Company in connection with the exercise of stock options or Event stock appreciation rights by way of Default cashless exercise or in connection with the satisfaction of withholding tax obligations. In determining the aggregate amount of Restricted Payments made subsequent to the Issue Date in accordance with clause (c) of the immediately preceding paragraph, amounts expended pursuant to clauses (b), (c), (d) and (f) of this paragraph shall have occurred be excluded from the calculation and amounts expended pursuant to clauses (a) and (e) of this paragraph shall be continuing immediately after such transactionincluded in the calculation. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default. For purposes of making such determination, all outstanding Investments by the Company and its Restricted Subsidiaries (except to the extent repaid in cash) in the Subsidiary so designated will shall be deemed to be Restricted Payments or, at the election of the Company Permitted Investments (if in compliance with such definition) at the time of such designation and will reduce the amount available for Restricted Payments under the first paragraph of this covenant or Permitted Investments as applicabledesignation. All such outstanding Investments will be deemed to constitute Investments in an amount equal to the greater of (a) the net book value of such Investments at the time of such designation and (b) the fair market value of such Investments at the time of such designation. Such designation will shall only be permitted if such Restricted Payment or Permitted Investments, as applicable, would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors of the Company may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary, provided that such designation shall be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of the Company of any outstanding Indebtedness of such Unrestricted Subsidiary and such designation shall only be permitted if (a) such Indebtedness is permitted under Section 4.09 hereof, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period, and (b) no Default or Event of Default would be in existence following such designation. Any designation of a Subsidiary as an Unrestricted Subsidiary shall be evidenced to the Trustee by filing with the Trustee a certified copy of a resolution of the Board of Directors giving effect to such designation and an Officers' Certificate certifying that such designation complied with the terms of the definition of Unrestricted Subsidiary set forth in this Indenture and with this Section 4.07. The amount of all Restricted Payments (other than cash) shall be the fair market value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall be determined in the manner contemplated by the Board definition of Directors whose resolution with respect thereto the term "fair market value," and the results of such determination shall be evidenced by an Officers' Certificate delivered to the Trustee, such determination to be based upon an opinion or appraisal issued by an accounting, appraisal or investment banking firm of national standing if such fair market value exceeds $5.0 million. Not later than the date of making any Restricted Payment, the Company shall deliver to the Trustee an Officers' Certificate stating that such Restricted Payment is permitted and setting forth the basis upon which the calculations required by this Section 4.07 were computed; provided, together however, with a copy respect to any planned purchase or redemption by the Company of its Equity Interests, the Company may, in advance of any fairness opinion such purchase or appraisal required by this Indentureredemption, deliver to the Trustee a single Officers' Certificate that otherwise complies with requirements set forth above stating (i) the maximum aggregate amount of Equity Interests to be purchased or redeemed and (ii) the period over which such purchases or redemptions will occur.

million. The foregoing provisions will not prohibit any of the following: (ia) the payment of any dividend within 60 days after the date of declaration thereof, if at said date of declaration such payment would have complied with the provisions of this Indenture; (iib) the redemption, repurchase, retirement, defeasance or other acquisition of any subordinated Indebtedness or Equity Interests of the Company in exchange for, or out of the net cash proceeds of (x) the substantially concurrent sale (other than to a Restricted Subsidiary of the Company) of, other Equity Interests of the Company (other than any Disqualified Stock) or (y) a substantially concurrent contribution of cash to the common equity of the Company; ), provided that the amount of any such net cash proceeds that are utilized for any such redemption, repurchase, retirement, defeasance or other acquisition shall be excluded from clause (c) (iiiii)(B) of the preceding paragraph; (iiic) the defeasance, redemption, repurchase repurchase, retirement or other acquisition of subordinated Indebtedness with the net cash proceeds from an incurrence of of, or in exchange for, Permitted Refinancing Indebtedness; (ivd) the payment of any dividend or distribution by a Restricted Subsidiary of the Company to the holders Company or any Wholly Owned Restricted Subsidiary of its common Equity Interests on a pro rata basisthe Company; (e) so long as no Default or Event of Default shall have occurred and (v) be continuing, the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company held by any member employee of the Company's (or any of its Restricted Subsidiaries') management (or any estate, heir or legatee of any such member); provided that the aggregate price paid for all such purchasedrepurchased, redeemed, acquired or retired Equity Interests shall not exceed $250,000 500,000 (or the equivalent thereof in any twelve-month period other currency or currency unit) in any calendar year; and no Default (f) the acquisition of Equity Interests of the Company in connection with the exercise of stock options or Event stock appreciation rights by way of Default shall have occurred and be continuing immediately after such transactioncashless exercise or in connection with the satisfaction of withholding tax obligations. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default. For purposes of making such determination, all outstanding Investments by the Company and its Restricted Subsidiaries (except to the extent repaid in cash) in the Subsidiary so designated will shall be deemed to be Restricted Payments or, at the election of the Company Permitted Investments (if in compliance with such definition) at the time of such designation and will reduce the amount available for Restricted Payments under the first paragraph of this covenant or Permitted Investments as applicabledesignation. All such outstanding Investments will be deemed to constitute Investments in an amount equal to the fair market value of such Investments at the time of such designation. Such designation will shall only be permitted if such Restricted Payment or Permitted Investments, as applicable, would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors of the Company may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary, provided that such designation shall be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of the Company of any outstanding Indebtedness of such Unrestricted Subsidiary and such designation shall only be permitted if (a) such Indebtedness is permitted under Section 4.09 hereof, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period, and (b) no Default or Event of Default would be in existence following such designation. Any designation of a Subsidiary as an Unrestricted Subsidiary shall be evidenced to the Trustee by filing with the Trustee a certified copy of a resolution of the Board of Directors giving effect to such designation and an Officers' Certificate certifying that such designation complied with the terms of the definition of Unrestricted Subsidiary set forth in this Indenture and with this Section 4.07. The amount of all Restricted Payments (other than cash) shall be the fair market value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall be determined in the manner contemplated by the Board definition of Directors whose resolution with respect thereto the term "fair market value," and the results of such determination shall be evidenced by an Officers' Certificate delivered to the Trustee, such determination to be based upon an opinion or appraisal issued by an accounting, appraisal or investment banking firm of national standing if such fair market value exceeds $5.0 million. Not later than five Business Days following the date of making any Restricted Payment, the Company shall deliver to the Trustee an Officers' Certificate stating that such Restricted Payment is permitted and setting forth the basis upon which the calculations required by this Section 4.07 were computed, together with a copy of any fairness opinion or appraisal required by this Indenture.

million. The foregoing provisions Issuer shall not, directly or indirectly, in any event incur any Indebtedness that purports to be by its terms (or by the terms of any agreement governing such Indebtedness) subordinated to any other Indebtedness of the Issuer unless such Indebtedness is also by its terms (or on the terms of any agreement governing such Indebtedness) subordinated to the Notes to the same extent as such Indebtedness is subordinated to such other Indebtedness of the Issuer. No Guarantor will, directly or indirectly, in any event incur any Indebtedness that purports to be by its terms (or by the terms of any agreement governing such Indebtedness) subordinated to any other Indebtedness of such Guarantor unless such Indebtedness is also by its terms (or on the terms of any agreement governing such Indebtedness) subordinated to the Guarantee of such Guarantor to the same extent as such Indebtedness is subordinated to such other Indebtedness of such Guarantor. Notwithstanding any other provision of this Section 4.06, the accrual of interest, accretion of accreted value of discount Indebtedness and payments of interest in the form of additional subordinated Indebtedness will not prohibit (i) the payment be deemed to be an incurrence of any dividend within 60 days after the date of declaration thereof, if at said date of declaration such payment would have complied with the provisions Indebtedness for purposes of this Indenture; (ii) Section 4.06, and the redemption, repurchase, retirement, defeasance maximum amount of Indebtedness that the Issuer or other acquisition of any subordinated Indebtedness or Equity Interests of the Company in exchange for, or out of the net cash proceeds of (x) the substantially concurrent sale (other than to a Restricted Subsidiary of the Company) of, other Equity Interests of the Company (other than any Disqualified Stock) or (y) a substantially concurrent contribution of cash may incur pursuant to the common equity of the Company; provided that the amount of any such net cash proceeds that are utilized for any such redemption, repurchase, retirement, defeasance or other acquisition shall be excluded from clause (c) (ii) of the preceding paragraph; (iii) the defeasance, redemption, repurchase or other acquisition of subordinated Indebtedness with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness; (iv) the payment of any dividend by a Restricted Subsidiary of the Company to the holders of its common Equity Interests on a pro rata basis; and (v) the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company held by any member of the Company's (or any of its Restricted Subsidiaries') management (or any estate, heir or legatee of any such member); provided that the aggregate price paid for all such purchased, redeemed, acquired or retired Equity Interests this Section 4.06 shall not exceed $250,000 in any twelve-month period and no Default or Event of Default shall have occurred and be continuing immediately after such transaction. The Board of Directors may designate any Restricted Subsidiary deemed to be an Unrestricted Subsidiary if such designation would not cause exceeded solely as a Defaultresult of fluctuations in the exchange rates of currencies. For purposes of making such determinationdetermining compliance with this Section 4.06, all outstanding Investments by the Company and its Restricted Subsidiaries (except to the extent repaid in cash) in the Subsidiary so designated will be deemed event that an item of Indebtedness meets the criteria of more than one of the categories of Permitted Indebtedness or is entitled to be Restricted Payments or, at the election of the Company Permitted Investments (if in compliance with such definition) at the time of such designation and will reduce the amount available for Restricted Payments under incurred pursuant to the first paragraph of this covenant or Permitted Investments as applicable. All such outstanding Investments will be deemed to constitute Investments Section 4.06, the Issuer shall, in an amount equal to the fair market value of such Investments its sole discretion at the time of such designation. Such designation will only be permitted if Indebtedness is incurred, classify, and may from time to time reclassify, such Restricted Payment Indebtedness (or Permitted Investments, as applicable, would be permitted at part thereof) in any manner that complies with this Section 4.06 and such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. The amount of all Restricted Payments Indebtedness (other than cashor part thereof) shall be the fair market value on the date treated as having been incurred pursuant to only one of the Restricted Payment of the asset(s) such clauses or securities proposed to be transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value first paragraph hereof, and such Indebtedness may be divided and classified in more than one of any non-cash Restricted Payment shall be determined by the Board of Directors whose resolution with respect thereto shall be delivered to the Trustee, such determination to be based upon an opinion or appraisal issued by an accounting, appraisal or investment banking firm of national standing if such fair market value exceeds $5.0 million. Not later than the date of making any Restricted Payment, the Company shall deliver to the Trustee an Officers' Certificate stating that such Restricted Payment is permitted and setting forth the basis upon which the calculations required by this Section 4.07 were computed, together with a copy of any fairness opinion or appraisal required by this Indentureclassifications.

million. The foregoing provisions will not prohibit (i) the payment of any dividend within 60 days after the date of declaration thereof, if at said date of declaration Any such payment would have complied with agreement shall amend the provisions of this IndentureAgreement and the other Loan Documents to set forth the terms of each Class of Term Loans or Commitments established thereby (including the amount and final maturity thereof (which shall not be earlier than the Revolving Maturity Date), any provisions relating to the amortization or mandatory prepayment thereof, the interest to accrue and be payable thereon and any fees to be payable in respect thereof) and to effect such other changes (including changes to the provisions of this Section, Section 2.14 and the definition of "Required Lenders") as Borrower and the Administrative Agent shall deem necessary or advisable in connection with the establishment of any such Class; provided that no such agreement shall (i) effect any change described in any of clauses (i)-(viii) of, or the proviso to, paragraph (b) of this Section without the consent of each person required to consent to such change under such clause (it being agreed, however, that any increase in the Revolving Commitments or establishment of any Class of Term Loans will not, of itself, be deemed to effect any of the changes described in clauses (vi) through (viii) and clause (1) of such paragraph (b)), (ii) amend Article V, VI or VIII to establish any affirmative or negative covenant, Event of Default or remedy that by its terms benefits one or more Classes, but not all Classes, of Loans or Borrowings without the redemption, repurchase, retirement, defeasance or other acquisition prior written consent of any subordinated Indebtedness or Equity Interests Lenders holding a majority in interest of the Company in exchange for, Loans and Commitments of each Class not so benefited (it being agreed that no provision requiring Borrower to prepay Term Loans of one or out of the net cash proceeds of more Classes pursuant to Sections 2.10(c) through (xg) the substantially concurrent sale (other than shall be deemed to a Restricted Subsidiary of the Company) of, other Equity Interests of the Company (other than any Disqualified Stockviolate this clause) or (yiii) a substantially concurrent contribution change any other provision of cash to this Agreement or any other Loan Document that creates rights in favor of Lenders holding Loans or Commitments of any existing Class, other than as necessary or advisable in the common equity judgment of the Company; provided Administrative Agent to cause such provision to take into account, or to make the benefits of such provision available to, Lenders holding Term Loans of such new Class or such new Commitments. The Loans, Commitments and Borrowings of any Class established pursuant to this paragraph shall constitute Loans, Commitments and Borrowings under, and shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the Guarantees and security interests created by the Security Documents. The Loans Parties shall take any actions reasonably required by the Administrative Agent to ensure and/or demonstrate that the amount Lien and security interests granted by the Security Documents continue to be perfected under the UCC or otherwise after the establishment of any such net cash proceeds that are utilized for Class of Term Loans or any such redemption, repurchase, retirement, defeasance or other acquisition shall be excluded from clause (c) (ii) of the preceding paragraph; (iii) the defeasance, redemption, repurchase or other acquisition of subordinated Indebtedness with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness; (iv) the payment of any dividend by a Restricted Subsidiary of the Company to the holders of its common Equity Interests on a pro rata basis; and (v) the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company held by any member of the Company's (or any of its Restricted Subsidiaries') management (or any estate, heir or legatee of any such member); provided that the aggregate price paid for all such purchased, redeemed, acquired or retired Equity Interests shall not exceed $250,000 in any twelve-month period and no Default or Event of Default shall have occurred and be continuing immediately after such transaction. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default. For purposes of making such determination, all outstanding Investments by the Company and its Restricted Subsidiaries (except to the extent repaid in cash) in the Subsidiary so designated will be deemed to be Restricted Payments or, at the election of the Company Permitted Investments (if in compliance with such definition) at the time of such designation and will reduce the amount available for Restricted Payments under the first paragraph of this covenant or Permitted Investments as applicable. All such outstanding Investments will be deemed to constitute Investments in an amount equal to the fair market value of such Investments at the time of such designation. Such designation will only be permitted if such Restricted Payment or Permitted Investments, as applicable, would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. The amount of all Restricted Payments (other than cash) shall be the fair market value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall be determined by the Board of Directors whose resolution with respect thereto shall be delivered to the Trustee, such determination to be based upon an opinion or appraisal issued by an accounting, appraisal or investment banking firm of national standing if such fair market value exceeds $5.0 million. Not later than the date of making any Restricted Payment, the Company shall deliver to the Trustee an Officers' Certificate stating that such Restricted Payment is permitted and setting forth the basis upon which the calculations required by this Section 4.07 were computed, together with a copy of any fairness opinion or appraisal required by this Indenturenew Commitments.

million. The foregoing provisions will not prohibit (ia) the payment of any dividend within 60 days after the date of declaration thereof, if at said date of declaration such payment would have complied with the provisions of this Indenture and the Series A/B Indenture; (iib) the redemption, repurchase, retirement, defeasance or other acquisition of any subordinated Indebtedness or Equity Interests of the Company in exchange for, or out of the net cash proceeds of (x) the substantially concurrent sale (other than to a Restricted Subsidiary of the Company) of, other Equity Interests of the Company (other than any Disqualified Stock) or (y) a substantially concurrent contribution of cash to the common equity of the Company; ), provided that the amount of any such net cash proceeds that are utilized for any such redemption, repurchase, retirement, defeasance or other acquisition shall be excluded from clause (c) (iiiii)(B) of the preceding paragraph; (iiic) the defeasance, redemption, repurchase repurchase, retirement or other acquisition of subordinated Indebtedness with the net cash proceeds from an incurrence of of, or in exchange for, Permitted Refinancing Indebtedness; (ivd) the payment of any dividend or distribution by a Restricted Subsidiary of the Company to the holders to the Company or any Wholly Owned Restricted Subsidiary; (e) so long as no Default or Event of its common Equity Interests on a pro rata basis; Default shall have occurred and (v) be continuing, the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company held by any member employee of the Company's (or any of its Restricted Subsidiaries') management (or any estate, heir or legatee of any such member); provided that the aggregate price paid for all such purchasedrepurchased, redeemed, acquired or retired Equity Interests shall not exceed $250,000 500,000 in any twelve-month period calendar year; and no Default (f) the acquisition of Equity Interests of the Company in connection with the exercise of stock options or Event stock appreciation rights by way of Default shall have occurred and be continuing immediately after such transactioncashless exercise or in connection with the satisfaction of withholding tax obligations. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default. For purposes of making such determination, all outstanding Investments by the Company and its Restricted Subsidiaries (except to the extent repaid in cash) in the Subsidiary so designated will shall be deemed to be Restricted Payments or, at the election of the Company Permitted Investments (if in compliance with such definition) at the time of such designation and will reduce the amount available for Restricted Payments under the first paragraph of this covenant or Permitted Investments as applicabledesignation. All such outstanding Investments will be deemed to constitute Investments in an amount equal to the greater of (a) the net book value of such Investments at the time of such designation and (b) the fair market value of such Investments at the time of such designation. Such designation will shall only be permitted if such Restricted Payment or Permitted Investments, as applicable, would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors of the Company may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary, provided that such designation shall be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of the Company of any outstanding Indebtedness of such Unrestricted Subsidiary and such designation shall only be permitted if (a) such Indebtedness is permitted under Section 4.09 hereof, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period, and (b) no Default or Event of Default would be in existence following such designation. Any designation of a Subsidiary as an Unrestricted Subsidiary shall be evidenced to the Trustee by filing with the Trustee a certified copy of a resolution of the Board of Directors giving effect to such designation and an Officers' Certificate certifying that such designation complied with the terms of the definition of Unrestricted Subsidiary set forth in this Indenture and with this Section 4.07. The amount of all Restricted Payments (other than cash) shall be the fair market value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall be determined in the manner contemplated by the Board definition of Directors whose resolution with respect thereto the term "fair market value," and the results of such determination shall be evidenced by an Officers' Certificate delivered to the Trustee, such determination to be based upon an opinion or appraisal issued by an accounting, appraisal or investment banking firm of national standing if such fair market value exceeds $5.0 million. Not later than the date of making any Restricted Payment, the Company shall deliver to the Trustee an Officers' Certificate stating that such Restricted Payment is permitted and setting forth the basis upon which the calculations required by this Section 4.07 were computed, together with a copy of any fairness opinion or appraisal required by this Indenture.

million. The foregoing provisions will not prohibit (ia) the payment of any dividend within 60 days after the date of declaration thereof, if at said date of declaration such payment would have complied with the provisions of this Indenture, the Series A/B Indenture and the Series C/D Indenture; (iib) the redemption, repurchase, retirement, defeasance or other acquisition of any subordinated Indebtedness or Equity Interests of the Company in exchange for, or out of the net cash proceeds of (x) the substantially concurrent sale (other than to a Restricted Subsidiary of the Company) of, other Equity Interests of the Company (other than any Disqualified Stock) or (y) a substantially concurrent contribution of cash to the common equity of the Company; ), provided that the amount of any such net cash proceeds that are utilized for any such redemption, repurchase, retirement, defeasance or other acquisition shall be excluded from clause (c) (iiiii)(B) of the preceding paragraph; (iiic) the defeasance, redemption, repurchase repurchase, retirement or other acquisition of subordinated Indebtedness with the net cash proceeds from an incurrence of of, or in exchange for, Permitted Refinancing Indebtedness; (ivd) the payment of any dividend or distribution by a Restricted Subsidiary of the Company to the holders to the Company or any Wholly Owned Restricted Subsidiary; (e) so long as no Default or Event of its common Equity Interests on a pro rata basis; Default shall have occurred and (v) be continuing, the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company held by any member employee of the Company's (or any of its Restricted Subsidiaries') management (or any estate, heir or legatee of any such member); provided that the aggregate price paid for all such purchasedrepurchased, redeemed, acquired or retired Equity Interests shall not exceed $250,000 500,000 in any twelve-month period calendar year; and no Default (f) the acquisition of Equity Interests of the Company in connection with the exercise of stock options or Event stock appreciation rights by way of Default shall have occurred and be continuing immediately after such transactioncashless exercise or in connection with the satisfaction of withholding tax obligations. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default. For purposes of making such determination, all outstanding Investments by the Company and its Restricted Subsidiaries (except to the extent repaid in cash) in the Subsidiary so designated will shall be deemed to be Restricted Payments or, at the election of the Company Permitted Investments (if in compliance with such definition) at the time of such designation and will reduce the amount available for Restricted Payments under the first paragraph of this covenant or Permitted Investments as applicabledesignation. All such outstanding Investments will be deemed to constitute Investments in an amount equal to the greater of (a) the net book value of such Investments at the time of such designation and (b) the fair market value of such Investments at the time of such designation. Such designation will shall only be permitted if such Restricted Payment or Permitted Investments, as applicable, would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors of the Company may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary, provided that such designation shall be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of the Company of any outstanding Indebtedness of such Unrestricted Subsidiary and such designation shall only be permitted if (a) such Indebtedness is permitted under Section 4.09 hereof, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period, and (b) no Default or Event of Default would be in existence following such designation. Any designation of a Subsidiary as an Unrestricted Subsidiary shall be evidenced to the Trustee by filing with the Trustee a certified copy of a resolution of the Board of Directors giving effect to such designation and an Officers' Certificate certifying that such designation complied with the terms of the definition of Unrestricted Subsidiary set forth in this Indenture and with this Section 4.07. The amount of all Restricted Payments (other than cash) shall be the fair market value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall be determined in the manner contemplated by the Board definition of Directors whose resolution with respect thereto the term "fair market value," and the results of such determination shall be evidenced by an Officers' Certificate delivered to the Trustee, such determination to be based upon an opinion or appraisal issued by an accounting, appraisal or investment banking firm of national standing if such fair market value exceeds $5.0 million. Not later than the date of making any Restricted Payment, the Company shall deliver to the Trustee an Officers' Certificate stating that such Restricted Payment is permitted and setting forth the basis upon which the calculations required by this Section 4.07 were computed, together with a copy of any fairness opinion or appraisal required by this Indenture.

million. The foregoing provisions will not prohibit (i) the payment of any dividend within 60 days after the date of declaration thereof, if at said date of declaration such payment would have complied with the provisions of this the Indenture; (ii) the redemption, repurchase, retirement, defeasance or other acquisition of any subordinated Indebtedness or Equity Interests of the Company or any Guarantor in exchange for, or out of the net cash proceeds of (x) the substantially concurrent sale (other than to a Restricted Subsidiary of the Company) of, other Equity Interests of the Company (other than any Disqualified Stock) or (y) a substantially concurrent contribution of cash to the common equity of the Company); provided that the amount of any such net cash proceeds that are utilized for any such redemption, repurchase, retirement, defeasance or other acquisition shall be excluded from clause (c) (ii) of the preceding paragraph; (iii) the defeasance, redemption, repurchase repurchase, retirement or other acquisition of subordinated Indebtedness in exchange for, or with the net cash proceeds from from, an incurrence of Permitted Refinancing Indebtedness; (iv) the payment of any dividend (or the making of a similar distribution or redemption) by a Restricted Subsidiary of the Company to the holders of its common Equity Interests on a pro rata basis; and (v) so long as no Default or Event of Default shall have occurred and is continuing, the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company Company, Holdings or any Restricted Subsidiary of the Company, held by any member of the Company's (or any of its Restricted Subsidiaries') management (management, employees or consultants pursuant to any estatemanagement, heir employee or legatee consultant equity subscription agreement or stock option agreement in effect as of any such member)the date of the Indenture; provided that the aggregate price paid for all such purchasedrepurchased, redeemed, acquired or retired Equity Interests shall not exceed the sum of (A) $250,000 10.0 million and (B) the aggregate cash proceeds received by the Company from any reissuance of Equity Interests by Holdings or the Company to members of management of the Company and its Restricted Subsidiaries (provided that the cash proceeds referred to in this clause (B) shall be excluded from clause (c)(ii), of the preceding paragraph); (vi) payments required to be made under the Tax Sharing Agreement; (vii) distributions made by the Company on the date hereof, the proceeds of which are utilized solely to consummate the Recapitalization; (viii) the payment of dividends or the making of loans or advances by the Company to Holdings not to exceed $1.5 million in any twelve-month period fiscal year for costs and expenses incurred by Holdings in its capacity as a holding company or for services rendered by Holdings on behalf of the Company; (ix) so long as no Default or Event of Default shall have has occurred and be is continuing, the declaration and payment of dividends to holders of any class or series of Disqualified Stock of the Company or any Guarantor issued after the date hereof in accordance with Section 4.09; (x) so long as (A) no Default or Event of Default has occurred and is continuing and (B) immediately before and immediately after giving effect thereto, the Company would have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the first paragraph described under Section 4.09, from and after October 15, 2002, payments of cash dividends to Holdings in an amount sufficient to enable Holdings to make payments of interest required to be made in respect of the Senior Discount Debentures in accordance with the terms thereof in effect on the date of the Indenture, provided such transactioninterest payments are made with the proceeds of such dividends; and (xi) the payment of dividends by the Company to Holdings of not more than 20% of the net proceeds from any sale of all or substantially all of the Capital Stock or assets of the Company's Popular Club Plan business or Xxxxxxxx & Xxxxx business (as each such business is constituted on the Issue Date), provided that such dividends shall only be permitted to the extent that Holdings immediately utilizes the proceeds thereof to repay, redeem, repurchase or otherwise retire outstanding Senior Discount Debentures. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default or an Event of Default. For purposes of making such determination, all outstanding Investments by the Company and its Restricted Subsidiaries (except to the extent repaid in cash) in the Subsidiary so designated will be deemed to be Restricted Payments or, at the election of the Company Permitted Investments (if in compliance with such definition) at the time of such designation and will reduce the amount available for Restricted Payments under the first paragraph of this covenant or Permitted Investments as applicablecovenant. All such outstanding Investments will be deemed to constitute Investments in an amount equal to the greater of (i) the net book value of such Investments at the time of such designation and (ii) the fair market value of such Investments at the time of such designation. Such designation will only be permitted if such Restricted Payment or Permitted Investments, as applicable, would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. The amount of (i) all Restricted Payments (other than cash) shall be the fair market value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted PaymentPayment and (ii) Qualified Proceeds (other than cash) shall be the fair market value on the date of receipt thereof by the Company of such Qualified Proceeds. The fair market value of any non-cash Restricted Payment and Qualified Proceeds shall be determined by the Board of Directors whose resolution with respect thereto shall be delivered to the Trustee, such determination to be based upon an opinion or appraisal issued by an accounting, appraisal or investment banking firm of national standing if such fair market value exceeds $5.0 10.0 million. Not later than the date of making any Restricted Payment, the Company shall deliver to the Trustee an Officers' Certificate stating that such Restricted Payment is permitted and setting forth the basis upon which the calculations required by this Section 4.07 were computed, together with a copy of any fairness opinion or appraisal required by this Indenture.

million. The foregoing provisions will not prohibit (iA) the payment of any dividend within 60 days after the date of declaration thereof, if at said date of declaration such payment would have complied with the provisions of this Indenture; (iiB) the redemption, repurchase, retirement, defeasance retirement or other acquisition or retirement for value of any subordinated Indebtedness or Equity Interests of the Company in exchange for, or out of with the net cash proceeds of (x) of, the substantially concurrent sale (other than to a Restricted Subsidiary of the Company) of, of other Equity Interests of the Company (other than any Disqualified Stock) or (y) a substantially concurrent contribution of cash to the common equity of the Company; provided that the amount of any such net cash proceeds that are utilized for any such redemption, repurchase, retirement, defeasance or other acquisition shall be excluded from clause (c) (ii) of the preceding paragraph); (iiiC) the defeasance, redemption, repurchase or other acquisition of subordinated Indebtedness with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness; (iv) the payment of any dividend by a Restricted Subsidiary of the Company to the holders of its common Equity Interests on a pro rata basis; and (v) the repurchase, redemption retirement or other acquisition or retirement for value of any Indebtedness that is subordinated or pari passu in right of payment to the Notes in exchange for, or with the net cash proceeds of, a substantially concurrent issuance and sale (other than to a Restricted Subsidiary of the Company) of Equity Interests of the Company held by any member (other than Disqualified Stock); (D) the defeasance, redemption, repurchase, retirement or other acquisition or retirement for value of Indebtedness that is subordinated or pari passu in right of payment to the Company's Notes in exchange for, or with the net cash proceeds of, a substantially concurrent issue and sale (other than to the Company or any of its Restricted Subsidiaries') management of Refinancing Indebtedness; (or any estate, heir or legatee E) the repurchase of any Indebtedness subordinated or pari passu in right of payment to the Notes at a purchase price not greater than 101% of the principal amount of such member)Indebtedness in the event of a Change of Control in accordance with provisions similar to the covenant set forth in Section 4.14 hereof, provided that prior to or contemporaneously with such repurchase the Company has made the Change of Control Offer as provided in such covenant with respect to the Notes and has repurchased all Notes validly tendered for payment in connection with such Change of Control Offer; (F) the prepayment of the Chrysler Notes, together with premium and interest thereon; (G) the prepayment of $450,000 of junior subordinated notes originally issued by the Company to First Document Storage, Inc. in connection with a 1990 acquisition, together with interest thereon; and (H) additional payments to current or former employees or directors of the Company for repurchases of stock, stock options or other equity interests, provided that the aggregate price paid for amount of all such purchased, redeemed, acquired or retired Equity Interests shall payments under this clause (H) does not exceed $250,000 500,000 in any twelve-month period year and $2.0 million in the aggregate. The Restricted Payments described in clauses (B), (C), (E) and (H) of the immediately preceding paragraph will be Restricted Payments that will be permitted to be taken in accordance with such paragraph but will reduce the amount that would otherwise be available for Restricted Payments under clause (iii) of the first paragraph of this section, and the Restricted Payments described in clauses (A), (D), (F) and (G) of the immediately preceding paragraph will be Restricted Payments that will be permitted to be taken in accordance with such paragraph and will not reduce the amount that would otherwise be available for Restricted Payments under clause (iii) of the first paragraph of this section. If an Investment results in the making of a Restricted Payment, the aggregate amount of all Restricted Payments deemed to have been made as calculated under the foregoing provision will be reduced by the amount of any net reduction in such Investment (resulting from the payment of interest or dividends, loan repayment, transfer of assets or otherwise) to the extent such net reduction is not included in the Company's EBITDA; provided, however, that the total amount by which the aggregate amount of all Restricted Payments may be reduced may not exceed the lesser of (a) the cash proceeds received by the Company and its Restricted Subsidiaries in connection with such net reduction and (b) the initial amount of such Investment. If the aggregate amount of all Restricted Payments calculated under the foregoing provision includes an Investment in an Unrestricted Subsidiary or other Person that thereafter becomes a Restricted Subsidiary, such Investment will no Default longer be counted as a Restricted Payment for purposes of calculating the aggregate amount of Restricted Payments. For the purpose of making any calculations under this Indenture, (a) an Investment will include the fair market value of the net assets of any Restricted Subsidiary at the time that such Restricted Subsidiary is designated an Unrestricted Subsidiary and will exclude the fair market value of the net assets of any Unrestricted Subsidiary that is designated as a Restricted Subsidiary, (b) any property transferred to or Event from an Unrestricted Subsidiary will be valued at fair market value at the time of Default shall have occurred such transfer, provided that, in each case, the fair market value of an asset or property is as determined by the Board of Directors in good faith, and (c) subject to the foregoing, the amount of any Restricted Payment, if other than cash, will be continuing immediately after such transactiondetermined by the Board of Directors, whose good faith determination will be conclusive. The Board of Directors may designate any a Restricted Subsidiary to be an Unrestricted Subsidiary if in compliance with Section 4.17 hereof. Upon such designation would not cause a Default. For purposes of making such determinationdesignation, all outstanding Investments by the Company and its Restricted Subsidiaries (except to the extent repaid in cash) in the Subsidiary so designated will be deemed to be Restricted Payments or, at the election of the Company Permitted Investments (if in compliance with such definition) made at the time of such designation and will reduce the amount available for Restricted Payments under the first paragraph of this covenant or Permitted Investments as applicable. All such outstanding Investments will be deemed to constitute Investments in an amount equal to the fair market value of such Investments at the time of such designationSection 4.07. Such designation will only be permitted if such Restricted Payment or Permitted Investments, as applicable, would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. The amount of all Restricted Payments (other than cash) shall be the fair market value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall be determined by the Board of Directors whose resolution with respect thereto shall be delivered to the Trustee, such determination to be based upon an opinion or appraisal issued by an accounting, appraisal or investment banking firm of national standing if such fair market value exceeds $5.0 million. Not later than the date of making any Restricted Payment, the Company shall deliver to the Trustee an Officers' Certificate stating that such Restricted Payment is permitted and setting forth the basis upon which the calculations required by this Section 4.07 were computed, together with a copy of any fairness opinion or appraisal required by this Indenture.

million. The foregoing provisions will not prohibit (i) the payment of any dividend within 60 days after the date of declaration thereof, if at said date of declaration Any such payment would have complied with agreement shall amend the provisions of this IndentureAgreement and the other Loan Documents to set forth the terms of each Class of Term Loans established thereby (including the amount and final maturity thereof (which shall not be earlier than the Tranche B Maturity Date), any provisions relating to the amortization or mandatory prepayment thereof, the interest to accrue and be payable thereon and any fees to be payable in respect thereof) and to effect such other changes (including changes to the provisions of this Section, Section 2.14 and the definition of “Required Lenders”) as Borrower and the Administrative Agent shall deem necessary or advisable in connection with the establishment of any such Class; provided that no such agreement shall (i) effect any change described in Section 11.02(b) (i) through (ix) without the consent of each person required to consent to such change under such clause (it being agreed, however, that any increase in the Tranche B Loans or establishment of any Class of Term Loans will not, of itself, be deemed to effect any of the changes described in Section 11.02(b)(vi) - (viii) and (1)), (ii) amend Article V, VI or VIII to establish any affirmative or negative covenant, Event of Default or remedy that by its terms benefits one or more Classes, but not all Classes, of Loans or Borrowings without the redemption, repurchase, retirement, defeasance or other acquisition prior written consent of any subordinated Indebtedness or Equity Interests Lenders holding a majority in interest of the Company in exchange for, Loans and Commitments of each Class not so benefited (it being agreed that no provision requiring Borrower to prepay Term Loans of one or out of the net cash proceeds of more Classes pursuant to Sections 2.10(c) through (xh) the substantially concurrent sale (other than shall be deemed to a Restricted Subsidiary of the Company) of, other Equity Interests of the Company (other than any Disqualified Stockviolate this clause) or (yiii) change any other provision of this Agreement or any other Loan Document that creates rights in favor of Lenders holding Loans or Commitments of any existing Class, other than as necessary or advisable in the judgment of the Administrative Agent to cause such provision to take into account, or to make the benefits of such provision available to, Lenders holding new Tranche B Loans or Term Loans of such new Class. The Lenders existing on a substantially concurrent contribution record date to be no more than 15 Business Days or fewer than 5 Business Days before the date of cash funding any new loans to be made hereunder shall have the first right, but no obligation, to commit to fund all or a portion of such new Tranche B Loans or new Class of Term Loans on a pro rata basis in accordance with their existing Tranche B Loans. Notice of such right shall be given to each such Lender within two Business Days of the record date, and such Lenders must exercise such right within ten Business Days of receipt of such notice. If such Lenders do not commit to provide the full amount of the new Tranche B Loans or the new Class of Term Loans, the Borrower may offer the uncommitted amount to other financial institutions reasonably acceptable to the common equity of the CompanyAdministrative Agent; provided that the amount minimum loan of each such new financial institution equals or exceeds $1.0 million. The Loans and Borrowings (of any Class) established pursuant to this paragraph (e) shall constitute Loans and Borrowings under, and shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the Guarantees and security interests created by the Security Documents. The Loan Parties shall take any actions reasonably required by the Administrative Agent to ensure and/or demonstrate that the Lien and security interests granted by the Security Documents continue to be perfected under the UCC or otherwise after the establishment of any such net cash proceeds that are utilized for any such redemption, repurchase, retirement, defeasance new Tranche B Loans or other acquisition shall be excluded from clause (c) (ii) new Class of the preceding paragraph; (iii) the defeasance, redemption, repurchase or other acquisition of subordinated Indebtedness with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness; (iv) the payment of any dividend by a Restricted Subsidiary of the Company to the holders of its common Equity Interests on a pro rata basis; and (v) the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company held by any member of the Company's (or any of its Restricted Subsidiaries') management (or any estate, heir or legatee of any such member); provided that the aggregate price paid for all such purchased, redeemed, acquired or retired Equity Interests shall not exceed $250,000 in any twelve-month period and no Default or Event of Default shall have occurred and be continuing immediately after such transaction. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default. For purposes of making such determination, all outstanding Investments by the Company and its Restricted Subsidiaries (except to the extent repaid in cash) in the Subsidiary so designated will be deemed to be Restricted Payments or, at the election of the Company Permitted Investments (if in compliance with such definition) at the time of such designation and will reduce the amount available for Restricted Payments under the first paragraph of this covenant or Permitted Investments as applicable. All such outstanding Investments will be deemed to constitute Investments in an amount equal to the fair market value of such Investments at the time of such designation. Such designation will only be permitted if such Restricted Payment or Permitted Investments, as applicable, would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. The amount of all Restricted Payments (other than cash) shall be the fair market value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall be determined by the Board of Directors whose resolution with respect thereto shall be delivered to the Trustee, such determination to be based upon an opinion or appraisal issued by an accounting, appraisal or investment banking firm of national standing if such fair market value exceeds $5.0 million. Not later than the date of making any Restricted Payment, the Company shall deliver to the Trustee an Officers' Certificate stating that such Restricted Payment is permitted and setting forth the basis upon which the calculations required by this Section 4.07 were computed, together with a copy of any fairness opinion or appraisal required by this IndentureTerm Loans.

million. The foregoing provisions will not prohibit (ia) the payment of any dividend within 60 days after the date of declaration thereof, if at said date of declaration such payment would have complied with the provisions of this Indenture; (iib) the redemption, repurchase, retirement, defeasance or other acquisition of any subordinated Indebtedness or Equity Interests of the Company in exchange for, or out of the net cash proceeds of (x) the substantially concurrent sale (other than to a Restricted Subsidiary of the Company) of, other Equity Interests of the Company (other than any Disqualified Stock) or (y) a substantially concurrent contribution of cash to the common equity of the Company; ), provided that the amount of any such net cash proceeds that are utilized for any such redemption, repurchase, retirement, defeasance or other acquisition shall be excluded from clause (c) (iiiii)(B) of the preceding paragraph; (iiic) the defeasance, redemption, repurchase repurchase, retirement or other acquisition of subordinated Indebtedness with the net cash proceeds from an incurrence of of, or in exchange for, Permitted Refinancing Indebtedness; (ivd) the payment of any dividend or distribution by a Restricted Subsidiary of the Company to the holders to the Company or any Wholly Owned Restricted Subsidiary; (e) so long as no Default or Event of its common Equity Interests on a pro rata basis; Default shall have occurred and (v) be continuing, the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company held by any member employee of the Company's (or any of its Restricted Subsidiaries') management (or any estate, heir or legatee of any such member); provided that the aggregate price paid for all such purchasedrepurchased, redeemed, acquired or retired Equity Interests shall not exceed $250,000 500,000 in any twelve-month period calendar year; and no Default (f) the acquisition of Equity Interests of the Company in connection with the exercise of stock options or Event stock appreciation rights by way of Default shall have occurred and be continuing immediately after such transactioncashless exercise or in connection with the satisfaction of withholding tax obligations. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default. For purposes of making such determination, all outstanding Investments by the Company and its Restricted Subsidiaries (except to the extent repaid in cash) in the Subsidiary so designated will shall be deemed to be Restricted Payments or, at the election of the Company Permitted Investments (if in compliance with such definition) at the time of such designation and will reduce the amount available for Restricted Payments under the first paragraph of this covenant or Permitted Investments as applicabledesignation. All such outstanding Investments will be deemed to constitute Investments in an amount equal to the greater of (a) the net book value of such Investments at the time of such designation and (b) the fair market value of such Investments at the time of such designation. Such designation will shall only be permitted if such Restricted Payment or Permitted Investments, as applicable, would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors of the Company may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary, provided that such designation shall be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of the Company of any outstanding Indebtedness of such Unrestricted Subsidiary and such designation shall only be permitted if (a) such Indebtedness is permitted under Section 4.09 hereof, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period, and (b) no Default or Event of Default would be in existence following such designation. Any designation of a Subsidiary as an Unrestricted Subsidiary shall be evidenced to the Trustee by filing with the Trustee a certified copy of a resolution of the Board of Directors giving effect to such designation and an Officers' Certificate certifying that such designation complied with the terms of the definition of Unrestricted Subsidiary set forth in this Indenture and with this Section 4.07. The amount of all Restricted Payments (other than cash) shall be the fair market value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall be determined in the manner contemplated by the Board definition of Directors whose resolution with respect thereto the term "fair market value," and the results of such determination shall be evidenced by an Officers' Certificate delivered to the Trustee, such determination to be based upon an opinion or appraisal issued by an accounting, appraisal or investment banking firm of national standing if such fair market value exceeds $5.0 million. Not later than the date of making any Restricted Payment, the Company shall deliver to the Trustee an Officers' Certificate stating that such Restricted Payment is permitted and setting forth the basis upon which the calculations required by this Section 4.07 were computed, together with a copy of any fairness opinion or appraisal required by this Indenture.

million. The foregoing provisions will shall not prohibit (i1) the payment of any dividend within 60 days after the date of declaration thereof, if at said date of declaration such payment would have complied with the provisions of this Indenture; (ii2) the redemption, repurchase, retirement, defeasance retirement or other acquisition of any Equity Interests or subordinated Indebtedness or Equity Interests of the Company in exchange for, or out of the net cash proceeds of (x) of, the substantially concurrent sale (other than to a Restricted Subsidiary of the Company) of, of other Equity Interests of the Company (other than any Disqualified Stock) or (y) a substantially concurrent contribution of cash to the common equity of the Company); provided that the amount of any such net cash proceeds that are utilized for any such redemption, repurchase, retirement, defeasance retirement or other acquisition shall be excluded from clause (c) (iiC)(ii) of the preceding paragraph; (iii3) the defeasance, redemption, redemption or repurchase or other acquisition of subordinated Indebtedness with the net cash proceeds from an incurrence of a substantially concurrent issuance of Permitted Refinancing IndebtednessDebt in accordance with the provisions of Section 4.09 hereof; (iv4) the payment of any dividend by a Restricted Subsidiary of the Company of advances under the Split Dollar Agreement in an amount not to the holders of its common Equity Interests on a pro rata basis; and (v) the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company held by any member of the Company's (or any of its Restricted Subsidiaries') management (or any estate, heir or legatee of any such member); provided that the aggregate price paid for all such purchased, redeemed, acquired or retired Equity Interests shall not exceed $250,000 in any twelvefour-month period and no Default quarter period; (5) the repurchase or Event redemption from employees of Default shall have occurred and be continuing immediately after such transaction. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default. For purposes of making such determination, all outstanding Investments by the Company and its Restricted Subsidiaries (except to other than the extent repaid in cashPrincipal) in the Subsidiary so designated will be deemed to be Restricted Payments or, at the election of Capital Stock of the Company Permitted Investments (if in compliance with such definition) at the time of such designation and will reduce the amount available for Restricted Payments under the first paragraph of this covenant or Permitted Investments as applicable. All such outstanding Investments will be deemed to constitute Investments in an amount equal not to the fair market value exceed an aggregate of such Investments at the time of such designation. Such designation will only be permitted if such Restricted Payment or Permitted Investments, as applicable, would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. The amount of all Restricted Payments (other than cash) shall be the fair market value on $5.0 million since the date of this Indenture; (6) the Restricted Payment payment of dividends on the Series A Preferred Stock in accordance with the terms thereof as in effect on the Closing Date; provided, however, that cash dividends may not be paid on the Series A Preferred Stock pursuant to this clause (6) prior to July 1, 2002; (7) the issuance of Subordinated Notes in exchange for shares of the asset(s) or securities proposed to be transferred or issued Series A Preferred Stock; provided that such issuance is permitted by Section 4.09 hereof; (8) in the event that the Company or such Restricted Subsidiaryelects to issue Subordinated Notes in exchange for Series A Preferred Stock, as cash payments made in lieu of the case may beissuance of Subordinated Notes having a face amount less than $1,000 and any cash payments representing accrued and unpaid dividends in respect thereof, pursuant not to exceed $100,000 in the Restricted Payment. The fair market value of aggregate in any non-cash Restricted Payment shall be determined by the Board of Directors whose resolution with respect thereto shall be delivered to the Trustee, such determination to be based upon an opinion or appraisal issued by an accounting, appraisal or investment banking firm of national standing if such fair market value exceeds $5.0 million. Not later than the date of making any Restricted Payment, the Company shall deliver to the Trustee an Officers' Certificate stating that such Restricted Payment is permitted and setting forth the basis upon which the calculations required by this Section 4.07 were computed, together with a copy of any fairness opinion or appraisal required by this Indenture.fiscal year; and

million. The foregoing provisions will not prohibit (i) the payment of any dividend within 60 days after the date of declaration thereof, if at said date of declaration such payment would have complied with the provisions of this Indenture; (ii) the redemption, repurchase, retirement, defeasance or other acquisition of any subordinated Indebtedness or Equity Interests of the Company in exchange for, or out of the net cash proceeds of (x) the substantially concurrent sale (other than to a Restricted Subsidiary of the Company) of, other Equity Interests of the Company (other than any Disqualified Stock) or (y) a substantially concurrent contribution of cash to the common equity of the Company; provided that the amount of any such net cash proceeds that are utilized for any such redemption, repurchase, retirement, defeasance or other acquisition shall be excluded from clause (c) (ii) of the preceding paragraph; (iii) the defeasance, redemption, repurchase or other acquisition of subordinated Indebtedness with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness; (iv) the payment of any dividend by a Restricted Subsidiary of the Company to the holders of its common Equity Interests on a pro rata basis; and (v) the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company held by any member of the Company's (or any of its Restricted Subsidiaries') management (or any estate, heir or legatee of any such member); provided that the aggregate price paid for all such purchased, redeemed, acquired or retired Equity Interests shall not exceed $250,000 in any twelve-month period and no Default or Event of Default shall have occurred and be continuing immediately after such transaction. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a of Default. For purposes In the event of making any such determinationdesignation, all outstanding Investments owned by the Company and its Restricted Subsidiaries (except to the extent repaid in cash) in the Subsidiary so designated will shall be deemed to be Restricted Payments or, at the election an Investment made as of the Company Permitted Investments (if in compliance with such definition) at the time of such designation and will shall reduce the amount available for Restricted Payments under the first paragraph of this covenant Section 4.07 or Permitted Investments Investments, as applicable. All such outstanding Investments will shall be deemed to constitute Restricted Investments in an amount equal to the fair market value of such Investments at the time of such designation. Such designation will shall only be permitted if such Restricted Payment or Permitted Investments, as applicable, would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. The amount of all Restricted Payments (other than cash) shall be the fair market value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment assets or securities that are required to be valued by this covenant shall be determined by the Board of Directors whose resolution with respect thereto shall be delivered to the Trustee, such determination to be based upon an opinion or appraisal issued by an accounting, appraisal or investment banking firm of national standing if such fair market value exceeds $5.0 million. Not later than the date of making any Restricted Payment, the Company shall deliver to the Trustee an Officers' Certificate stating that such Restricted Payment is permitted and setting forth the basis upon which the calculations required by this Section 4.07 were computed, together with a copy of any fairness opinion or appraisal required by this Indenture.. Contributions by employees to the Company's Stock Growth Plan, as in effect on the date of this Indenture, and, if such Plan is not a Restricted Subsidiary, payments by such Plan to purchase Equity Interests of the Company, in each case, in the ordinary course of business on a basis consistent with past practice shall not constitute Restricted Payments for the purposes of this Section 4.07. 45

million. The foregoing provisions will not prohibit (i) the payment of any dividend within 60 days after the date of declaration thereof, if at said date of declaration such payment would have complied with the provisions of this Indenturehereof; (ii) the redemption, repurchase, retirement, defeasance or other acquisition of any subordinated Indebtedness or Equity Interests of the Company in exchange for, or out of the net cash proceeds of (x) the substantially concurrent sale (other than to a Restricted Subsidiary of the Company) of, other Equity Interests of the Company (other than any Disqualified Stock) or (y) a substantially concurrent contribution of cash to the common equity of the Company); provided that the amount of any such net cash proceeds that are utilized for any such redemption, repurchase, retirement, defeasance or other acquisition shall be excluded from clause (c) (iic)(ii) of the preceding paragraph; (iii) the defeasance, redemption, repurchase repurchase, retirement or other acquisition of subordinated Indebtedness in exchange for, or with the net cash proceeds from from, an incurrence of Permitted Refinancing Indebtedness; (iv) the payment of any dividend (or the making of a similar distribution or redemption) by a Restricted Subsidiary of the Company to the holders of its common Equity Interests on a pro rata basis; and (v) so long as no Default or Event of Default shall have occurred and is continuing, the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company Company, or any Restricted Subsidiary of the Company, held by any member of the Company's (or any of its Restricted Subsidiaries') management (management, employees or consultants pursuant to any estatemanagement, heir employee or legatee consultant equity subscription agreement or stock option agreement in effect as of any such member)the date hereof; provided that the aggregate price paid for all such purchasedrepurchased, redeemed, acquired or retired Equity Interests shall not exceed the sum of (A) $250,000 10.0 million and (B) the aggregate cash proceeds received by the Company from any reissuance of Equity Interests by the Company to members of management of the Company and its Restricted Subsidiaries (provided that the cash proceeds referred to in any twelve-month period this clause (B) shall be excluded from clause (c)(ii), of the preceding paragraph); (vi) distributions made by the Company on the date hereof, the proceeds of which are utilized solely to consummate the Recapitalization; and (vii) so long as no Default or Event of Default shall have has occurred and be continuing immediately is continuing, the declaration and payment of dividends to holders of any class or series of Disqualified Stock of the Company issued after such transactionthe date hereof in accordance with Section 4.09. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default or an Event of Default. For purposes of making such determination, all outstanding Investments by the Company and its Restricted Subsidiaries (except to the extent repaid in cash) in the Subsidiary so designated will be deemed to be Restricted Payments or, at the election of the Company Permitted Investments (if in compliance with such definition) at the time of such designation and will reduce the amount available for Restricted Payments under the first paragraph of this covenant or Permitted Investments as applicablecovenant. All such outstanding Investments will be deemed to constitute Investments in an amount equal to the greater of (i) the net book value of such Investments at the time of such designation and (ii) the fair market value of such Investments at the time of such designation. Such designation will only be permitted if such Restricted Payment or Permitted Investments, as applicable, would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. The amount of (i) all Restricted Payments (other than cash) shall be the fair market value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted PaymentPayment and (ii) Qualified Proceeds (other than cash) shall be the fair market value on the date of receipt thereof by the Company of such Qualified Proceeds. The fair market value of any non-cash Restricted Payment and Qualified Proceeds shall be determined by the Board of Directors whose resolution with respect thereto shall be delivered to the Trustee, such determination to be based upon an opinion or appraisal issued by an accounting, appraisal or investment banking firm of national standing if such fair market value exceeds $5.0 10.0 million. Not later than the date of making any Restricted Payment, the Company shall deliver to the Trustee an Officers' Certificate stating that such Restricted Payment is permitted and setting forth the basis upon which the calculations required by this Section 4.07 were computed, together with a copy of any fairness opinion or appraisal required by this Indenture.

million. The foregoing preceding provisions will shall not prohibit prohibit: (i) the payment of any dividend within 60 days after the date of declaration thereof, if at said date of declaration declaration, such payment would have complied with the provisions of this Indenture; (ii) the redemption, repurchase, retirement, defeasance or other acquisition of any subordinated Indebtedness of the Company or any Guarantor or of any Equity Interests of the Company in exchange for, or out of the net cash proceeds of (x) the substantially concurrent sale sale, issuance of or contribution for, (other than to a Restricted Subsidiary of the Company) of), other Equity Interests of the Company (other than any Disqualified Stock) or (y) a substantially concurrent contribution of cash to the common equity of the Company); provided that the amount of any such net cash proceeds that are utilized for any such payment, redemption, repurchase, retirement, defeasance or defeasance, other acquisition or dividend or distribution shall be excluded from clause (c) (ii) of the preceding paragraph; (iii) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the defeasance, redemption, repurchase or other acquisition of subordinated Indebtedness with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness; (iv) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the payment of any dividend or distribution by a Restricted Subsidiary of the Company to the holders of its common Equity Interests on a pro rata basis; and (v) so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company held by any member present, former or future employee, director or Consultant of the Company's (or any of its Restricted Subsidiaries') management (Subsidiaries or any estate, heir parent of the Company) pursuant to any management equity subscription agreement or legatee stock option agreement in effect as of the date of this Indenture or any such member)other similar agreement; provided that the aggregate price paid for all such purchasedrepurchased, redeemed, acquired or retired Equity Interests shall not exceed $250,000 2.0 million in any twelve-month period (with unused amounts in any calendar year being carried over to succeeding calendar years subject to a maximum (without giving effect to the following proviso) of $4.0 million in any calendar year); provided that such amount in any calendar year may be increased by an amount not to exceed (A) the cash proceeds from the sale of Equity Interests of the Company, any parent of the Company or any of its Restricted Subsidiaries to present, former or future directors, Consultants or employees of the Company, its Restricted Subsidiaries or any parent of the Company that occurred since February 20, 2001 (to the extent the cash proceeds from the sale of such Equity Interest have not otherwise been included in clause (c) of the immediately preceding paragraph), plus (B) the cash proceeds of key man life insurance policies received by the Company, its Restricted Subsidiaries or any parent of the Company since February 20, 2001; and provided that cancellation of Indebtedness owing to the Company from present, former or future directors, Consultants, or employees of the Company, any of its Restricted Subsidiaries or any parent of the Company the proceeds of which were used solely to purchase Equity Interests of the Company will not be deemed to constitute a Restricted Payment so long as the value of such Equity Interests issued did not increase clause (c) of the preceding paragraph; (vi) so long as no Default or Event of Default shall have has occurred and is continuing or would be continuing immediately caused thereby, Restricted Investments made after such transaction. The Board the date of Directors may designate this Indenture having an aggregate Fair Market Value, taken together with all other Investments made pursuant to this clause (vi) and, without duplication, Investments made pursuant to the this clause (vi) of the Existing Indenture that are at that time outstanding (without giving effect to any Restricted Subsidiary write-up, write-off or write-down), not to be an Unrestricted Subsidiary exceed 5% of the Company's Consolidated Tangible Assets as of the end of the fiscal quarter most recently completed (with Fair Market Value of each Investment being measured at the time made and without giving effect to subsequent changes in value); (vii) repurchases of Equity Interests deemed to occur upon exercise of stock options if such designation Equity Interests represent a portion of the exercise price of such options; (viii) so long as no Default or Event of Default has occurred and is continuing or would not cause a Default. For purposes be caused thereby, the payment of making such determination, all outstanding Investments dividends on the Company's Capital Stock of up to 6% per annum of the net proceeds received by the Company and in its Restricted March, 2002 initial public offering; (ix) Investments in Unrestricted Subsidiaries that are made with Excluded Contributions; (except to the extent repaid x) non-cash Investments in cash) Unrestricted Subsidiaries in the Subsidiary form of administrative, financial, accounting, management, or other similar services (together with a non-cash allocation of corporate overhead), in each case in the ordinary course of business; (xi) so designated will long as no Default or Event of Default has occurred and is continuing or would be deemed to be Restricted Payments orcaused thereby, at the election payment of dividends on Disqualified Stock which is issued in accordance with Section 4.09 hereof; and (xii) transactions contemplated by the offering memorandum of even date herewith in connection with the issuance of the Company Permitted Investments (if in compliance with such definition) at the time of such designation and will reduce the amount available for Restricted Payments Notes under the first paragraph caption "Use of this covenant or Permitted Investments as applicable. All such outstanding Investments will be deemed to constitute Investments in an amount equal to the fair market value of such Investments at the time of such designation. Such designation will only be permitted if such Restricted Payment or Permitted Investments, as applicable, would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted SubsidiaryProceeds". The amount of all Restricted Payments (other than cash) shall be the fair market value Fair Market Value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued to or by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. The ; provided that, notwithstanding the other provisions of this Indenture, with respect to this covenant, an MAI appraiser, accounting firm or valuation firm with experience in such valuation and not affiliated with the Company shall be required if the fair market value of any non-cash such Restricted Payment shall be determined by the Board or Restricted Payments for any series of Directors whose resolution with respect thereto shall be delivered to the Trustee, such determination to be based upon an opinion or appraisal issued by an accounting, appraisal or investment banking firm of national standing if such fair market value transactions exceeds $5.0 2.0 million. Not later than the date of making any Restricted PaymentAt least quarterly, the Company shall deliver to the Trustee an Officers' Certificate stating that all Restricted Payments during such Restricted Payment is quarter were permitted and setting forth the basis upon which the calculations required by this Section 4.07 were computed, together with a copy of any fairness opinion or appraisal required by this Indenture. If a Guarantee constituted a Restricted Investment at the time made, then the payment under such Guarantee shall not constitute an additional Restricted Investment. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default or an Event of Default. In the event of any such designation, all outstanding Investments owned by the Company and its Restricted Subsidiaries in the Subsidiary so designated shall be deemed to be an Investment made as of the time of such designation and shall reduce the amount available for Restricted Payments under the first paragraph of this Section 4.07 or Permitted Investments, as applicable. All such outstanding Investments shall be deemed to constitute Restricted Investments in an amount equal to the fair market value of such Investments at the time of such designation. Such designation shall only be permitted if such Restricted Payment would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. The Board of Directors may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if such redesignation would not cause a Default or an Event of Default. Any such designation by the Board of Directors shall be evidenced to the Trustee by filing with the Trustee a certified copy of the board resolution giving effect to such designation and an Officers' Certificate certifying that such designation complied with the foregoing conditions and was permitted by this Section 4.07. If, at any time, any Unrestricted Subsidiary would fail to meet the definition of an Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary of the Company as of such date (and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09 hereof, the Company shall be in default of Section 4.09 hereof). The Board of Directors of the Company may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided that such designation shall be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of the Company of any outstanding Indebtedness of such Unrestricted Subsidiary and such designation shall only be permitted if (a) such Indebtedness is permitted under Section 4.09 hereof, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period, and (b) no Default or Event of Default would be in existence following such designation.

million. The foregoing provisions will shall not prohibit (i) the payment of any dividend within 60 days after the date of declaration thereof, if at said the date of declaration such payment would have complied with the provisions of this Indenture; (ii) the redemption, repurchase, retirement, defeasance or other acquisition of any subordinated Indebtedness of the Company or any Guarantor or Equity Interests of the Company in exchange for, or out of the net cash proceeds of (x) the substantially concurrent sale (other than to a Restricted Subsidiary of the Company) of, other Equity Interests of the Company (other than any Disqualified Stock) or (y) a substantially concurrent contribution of cash to the common equity of the Company); provided that the amount of any such net cash proceeds that are utilized for any such redemption, repurchase, retirement, defeasance or other acquisition shall be excluded from clause (c) (ii) of the preceding paragraph; (iii) the defeasance, redemption, repurchase or other acquisition of subordinated Indebtedness of the Company or any Guarantor with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness; (iv) the payment of any dividend by a Restricted Subsidiary of the Company to the holders of its common Equity Interests on a pro rata basis; and (v) the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Subsidiary of the Company held by any member of the Company's (or any of its Restricted Subsidiaries') management (or any estate, heir or legatee of any such member); provided that the aggregate price paid for all such purchased, redeemed, acquired or retired Equity Interests shall not exceed $250,000 in any twelve-month period and no Default or Event of Default shall have occurred and be continuing immediately after such transaction. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default. For purposes of making such determination, all outstanding Investments by the Company and its Restricted Subsidiaries (except to the extent repaid in cash) in the Subsidiary so designated will be deemed to be Restricted Payments or, at the election of the Company Permitted Investments (if in compliance with such definition) at the time of such designation and will reduce the amount available for Restricted Payments under the first paragraph of this covenant or Permitted Investments as applicable. All such outstanding Investments will be deemed to constitute Investments in an amount equal to the fair market value of such Investments at the time of such designation. Such designation will only be permitted if such Restricted Payment or Permitted Investments, as applicable, would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. The amount of all Restricted Payments (other than cash) shall be the fair market value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall be determined by the Board of Directors whose resolution with respect thereto shall be delivered to the Trusteestock purchase, such determination to be based upon an opinion or appraisal issued by an accounting, appraisal or investment banking firm of national standing if such fair market value exceeds $5.0 million. Not later than the date of making any Restricted Payment, the Company shall deliver to the Trustee an Officers' Certificate stating that such Restricted Payment is permitted and setting forth the basis upon which the calculations required by this Section 4.07 were computed, together with a copy of any fairness opinion or appraisal required by this Indenture.stock

million. The foregoing provisions will shall not prohibit (i) the payment of any dividend within 60 days after the date of declaration thereof, if at said date of declaration such payment would have complied with the provisions of this Indenture; : (ii) the redemption, repurchase, retirement, defeasance or other acquisition of any pari passu or subordinated Indebtedness or Equity Interests of the Company in exchange for, or out of the net cash proceeds of (x) the substantially concurrent sale (other than to a Restricted Subsidiary of the Company) of, other Equity Interests of the Company (other than any Disqualified Stock) or (y) a substantially concurrent contribution of cash to the common equity of the Company); provided that the amount of any such net cash proceeds that are utilized for any such redemption, repurchase, retirement, defeasance or other acquisition shall be excluded from clause (c) (ii) of the preceding paragraph; (iii) the defeasance, redemption, repurchase or other acquisition of pari passu or subordinated Indebtedness with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness; (iv) the payment of any dividend by a Restricted Subsidiary of the Company to the holders of its common Equity Interests on a pro rata basis; and (v) the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company held by any member of the Company's (or any of its Restricted Subsidiaries') management (pursuant to any management equity subscription agreement or any estate, heir or legatee stock option agreement in effect as of any such member)the date of this Indenture; provided that the aggregate price paid for all such purchasedrepurchased, redeemed, acquired or retired Equity Interests shall not exceed $250,000 5.0 million in any twelve-month period the aggregate since the Issue Date; (vi) the repurchase of the Harvard Warrant required pursuant to agreements in effect on the Issue Date (as in effect on such date), provided that the consideration paid by the Company shall consist solely of Harvard Notes; (vii) the purchase of common stock held by management of the Company required pursuant to the Shareholders' Agreement, provided that the consideration paid by the Company shall consist solely of Management Notes; and no Default (viii) the payment on or Event after the Issue Date of Default shall have occurred and be continuing immediately after such transactiondividends in respect of the Company's common stock in an aggregate amount not exceeding $6.0 million. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default. For purposes of making such determination, all outstanding Investments by the Company and its Restricted Subsidiaries (except to the extent repaid in cash) in the Subsidiary so designated will shall be deemed to be Restricted Payments or, at the election of the Company Permitted Investments (if in compliance with such definition) at the time of such designation and will shall reduce the amount available for Restricted Payments under the first paragraph of this covenant or Permitted Investments as applicablecovenant. All such outstanding Investments will shall be deemed to constitute Investments in an amount equal to the fair market value of such Investments at the time of such designation. Such designation will shall only be permitted if such Restricted Payment or Permitted Investments, as applicable, would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. The amount of all Restricted Payments (other than cash) shall be the fair market value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall be determined by the Board of Directors whose resolution with respect thereto shall be delivered to the Trustee, such determination to be based upon an opinion or appraisal issued by an accounting, appraisal or investment banking firm of national standing if such fair market value exceeds $5.0 1.0 million. Not later than the date of making any Restricted PaymentPayment (except with respect to a payment on a Management Note, for which 15 days notice shall be required), the Company shall deliver to the Trustee an Officers' Certificate stating that such Restricted Payment is permitted and setting forth the basis upon which the calculations required by this Section 4.07 were computed, together with a copy of any fairness opinion or appraisal required by this Indenture.