Common use of Restricted Payments Clause in Contracts

Restricted Payments. From and after the date hereof the Company shall not, and shall not permit any of its Subsidiaries to, directly or indirectly: (i) declare or pay any dividend or make any other payment or distribution on account of the Company's or any of its Restricted Subsidiaries' Equity Interests or to the direct or indirect holders of the Company's or any of its Restricted Subsidiaries' Equity Interests in their capacity as such (other than dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company); (ii) purchase, redeem or otherwise acquire or retire for value any Equity Interests of the Company or any direct or indirect parent of the Company; (iii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness that is PARI PASSU with or subordinated to the Notes (other than the Notes and the 2003 Notes), except a payment of interest or principal at Stated Maturity; or (iv) make any Restricted Investment (all such payments and other actions set forth in clauses (i) through (iv) above being collectively referred to as "RESTRICTED PAYMENTS"), unless, at the time of and after giving effect to such Restricted Payment: (a) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof; and (b) the Company would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Cash Flow Coverage Ratio test set forth in the first paragraph of Section 4.09 hereof; and (c) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Subsidiaries after the date of the Indenture (excluding Restricted Payments permitted by clauses (ii) and (iii) of the next succeeding paragraph), is less than the sum of (i) 50% of the Consolidated Net Income of the Company for the period (taken as one accounting period) from the beginning of the first fiscal quarter commencing after the date of the Indenture to the end of the Company's most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit), plus (ii) 100% of the aggregate net cash proceeds received by the Company from the issue or sale since the date of the Indenture of Equity Interests of the Company or MSC (other than Disqualified Stock) or of Disqualified Stock or debt securities of the Company or MSC that have been converted into such Equity Interests (other than Equity Interests (or Disqualified Stock or convertible debt securities) sold to a Subsidiary of the Company and other than Disqualified Stock or convertible debt securities that have been converted into Disqualified Stock), plus (iii) to the extent that any Restricted Investment that was made after the date of the Indenture is sold for cash or otherwise liquidated or repaid for cash, the lesser of (A) the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any) and (B) the initial amount of such Restricted Investment plus (iv) if any Unrestricted Subsidiary (A) is redesignated as a Restricted Subsidiary, the fair market value of such redesignated Subsidiary (as determined in good faith by the Board of Directors) as of the date of its redesignation or (B) pays any cash dividends or cash distributions to the Company or any of its Restricted Subsidiaries, 50% of any such cash dividends or cash distributions made after the date of the Indenture. The foregoing provisions 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 the Indenture; (ii) the redemption, repurchase, retirement, defeasance or other acquisition of any PARI PASSU or subordinated Indebtedness or Equity Interests of the Company or MSC in exchange for, or out of the net cash proceeds of the substantially concurrent sale or issuance (other than to a Restricted Subsidiary of the Company) of, other Equity Interests of the Company or MSC (other than any Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such redemption, repurchase, retirement, defeasance or other acquisition shall be excluded from clause (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 Equity Interests on a pro rata basis; (v) any repurchase of Equity Interests of the Company or MSC from present and former employees and directors of the Company or its Subsidiaries or MSC in an aggregate amount not to exceed $5 million; (vi) Permitted Investments; or (vii) other Restricted Payments in an aggregate amount not to exceed $5 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 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 covenant. 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 (as determined in good faith by the Board of Directors). 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 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 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, such determination to be based upon an opinion or appraisal issued by an accounting, appraisal or investment banking firm of national standing if such fair market value exceeds $10.0 million. Not later than 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 covenant were computed, together with a copy of any fairness opinion or appraisal required by the Indenture.

Restricted Payments. From and after the date hereof the The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly: : (ia) declare or pay any dividend or make any other payment or distribution on account of the Company's or any of its Restricted Subsidiaries' Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company or any of its Restricted Subsidiaries) or to the direct or indirect holders of the Company's or any of its Restricted Subsidiaries' Equity Interests in their capacity as such (other than dividends or distributions payable (x) solely in Equity Interests (other than Disqualified Stock) of the Company or (y) ,in the case of the Company and its Restricted Subsidiaries, to the Company or a Restricted Subsidiary of the Company); ; (iib) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company or any of its Restricted Subsidiaries) any Equity Interests of the Company or any direct or indirect parent of the Company or any Restricted Subsidiary of the Company (other than in the case of the Company and its Restricted Subsidiaries, any such Equity Interests owned by the Company or any Restricted Subsidiary of the Company); or (iiic) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value value, any Indebtedness that is PARI PASSU with or subordinated to the Notes (other than the Notes and the 2003 Notes), except a payment of interest or principal at the Stated Maturity; or (iv) make any Restricted Investment Maturity thereof, (all such payments and other actions set forth in clauses (ia) through (ivc) above being collectively referred to as "RESTRICTED PAYMENTSRestricted Payments"), unless, at the time of and after giving effect to such Restricted Payment: (a1) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof; and (b2) the Company would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Cash Flow Coverage Leverage Ratio test set forth in the first paragraph of Section 4.09 hereof4.10; and (c3) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and each of its Restricted Subsidiaries after the date of the Indenture March 17, 1999 (excluding Restricted Payments permitted by clauses (ii2), (3), (4), (5), (6), (7) and (iii) 8) of the next succeeding paragraph), is less than shall not exceed, at the date of determination, the sum of of: (ia) 50an amount equal to 100% of the Consolidated Net Income EBITDA of the Company for the period (taken as one accounting period) from the beginning of the first fiscal quarter commencing after the date of the Indenture since March 17, 1999 to the end of the Company's most recently ended full fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (oravailable, if such Consolidated Net Income for such period is taken as a deficitsingle accounting period, less the product of 1.2 times the Consolidated Interest Expense of the Company since March 17, 1999 to the end of the Company's most recently ended full fiscal quarter for which internal financial statements are available, taken as a single accounting period, plus (b) an amount equal to 100% of Capital Stock Sale Proceeds less any such deficit), plus Capital Stock Sale Proceeds used in connection with (i) an Investment made pursuant to clause (5) of the definition of "Permitted Investments" or (ii) 100% the incurrence of the aggregate net cash proceeds received by the Company from the issue Indebtedness pursuant to clause (10) of Section 4.10, plus (c) $100 million. So long as no Default has occurred and is continuing or sale since the date of the Indenture of Equity Interests of the Company or MSC (other than Disqualified Stock) or of Disqualified Stock or debt securities of the Company or MSC that have been converted into such Equity Interests (other than Equity Interests (or Disqualified Stock or convertible debt securities) sold to a Subsidiary of the Company and other than Disqualified Stock or convertible debt securities that have been converted into Disqualified Stock), plus (iii) to the extent that any Restricted Investment that was made after the date of the Indenture is sold for cash or otherwise liquidated or repaid for cashwould be caused thereby, the lesser of (A) the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any) and (B) the initial amount of such Restricted Investment plus (iv) if any Unrestricted Subsidiary (A) is redesignated as a Restricted Subsidiary, the fair market value of such redesignated Subsidiary (as determined in good faith by the Board of Directors) as of the date of its redesignation or (B) pays any cash dividends or cash distributions to the Company or any of its Restricted Subsidiaries, 50% of any such cash dividends or cash distributions made after the date of the Indenture. The foregoing preceding provisions shall not prohibit 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 the this Indenture; ; (ii2) the redemption, repurchase, retirement, defeasance or other acquisition of any PARI PASSU or subordinated Indebtedness or Equity Interests of the Company or MSC in exchange for, or out of the net cash proceeds of of, the substantially concurrent sale or issuance (other than to a Restricted Subsidiary of the Company) of, other of Equity Interests of the Company or MSC (other than any Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such redemption, repurchase, retirement, defeasance or other acquisition shall be excluded from clause (c3) (iib) of the preceding paragraph; ; (iii3) the defeasance, redemption, repurchase or other acquisition of PARI PASSU or subordinated Indebtedness of the Company or any of its Restricted Subsidiaries with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness; ; (iv4) regardless of whether a Default then exists, the payment of any dividend or distribution to the extent necessary to permit direct or indirect beneficial owners of shares of Capital Stock of the Company to pay federal, state or local income tax liabilities that would arise solely from income of the Company or any of its Restricted Subsidiaries, as the case may be, for the relevant taxable period and attributable to them solely as a result of the Company (and any intermediate entity through which the holder owns such shares) or any of its Restricted Subsidiaries being a limited liability company, partnership or similar entity for federal income tax purposes; (5) regardless of whether a Default then exists, 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; ; (v6) the payment of any repurchase dividend on the Helicon Preferred Stock or the redemption, repurchase, retirement or other acquisition of the Helicon Preferred Stock in an amount not in excess of its aggregate liquidation value; (7) the repurchase, redemption or other acquisition or retirement for value, or the payment of any dividend or distribution to the extent necessary to permit the repurchase, redemption or other acquisition or retirement for value, of any Equity Interests of the Company or MSC from present and former employees and directors a Parent held by any member of the Company Company's or its Subsidiaries such Parent's management pursuant to any management equity subscription agreement or MSC membership or stock option agreement in effect as of the Issue Date; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall not exceed $10 million in any fiscal year of the Company; and (8) payment of fees in connection with any acquisition, merger or similar transaction in an aggregate amount that does not to exceed $5 million; (vi) Permitted Investments; or (vii) other Restricted Payments in an aggregate amount not to exceed $5 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 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 covenant. All such outstanding Investments will be deemed to constitute Investments in an amount equal to 1.25% of the fair market transaction value of such Investments at the time of such designation (as determined in good faith by the Board of Directors). 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 Subsidiaryacquisition, merger or similar transaction. 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 Subsidiary, as the case may be, any of its Restricted Subsidiaries 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 in good faith by the Board of Directors of the Company, whose resolution with respect thereto shall be delivered to the Trustee, such . Such Board of Directors' determination to must be based upon an opinion or appraisal issued by an accounting, appraisal or investment banking firm of national standing if such the fair market value exceeds $10.0 100 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 covenant Section 4.07 were computed, together with a copy of any fairness opinion or appraisal required by the this Indenture.

Restricted Payments. From and after the date hereof the Company Holdings shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly: (i) declare or pay any dividend or make any other payment or distribution on account of the Company's Holdings' or any of its Restricted Subsidiaries' Equity Interests (including, without limitation, any payment in connection with any merger or to the direct or indirect holders of the Company's or any of its Restricted Subsidiaries' Equity Interests in their capacity as such consolidation involving Holdings) (other than dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the CompanyHoldings or dividends or distributions payable to Holdings or any Wholly Owned Subsidiary of Holdings); (ii) purchase, redeem or otherwise acquire or retire for value any Equity Interests of the Company Holdings or any direct or indirect parent of the CompanyHoldings or other Affiliate or Restricted Subsidiary of Holdings; (iii) make any principal payment on or with respect toon, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness that is PARI PASSU with or subordinated to the Notes (other than the Notes and the 2003 Notes)Exchange Debentures, except a payment in accordance with the scheduled mandatory redemption or repayment provisions set forth in the original documentation governing such Indebtedness (but not pursuant to any mandatory offer to repurchase upon the occurrence of interest or principal at Stated Maturityany event); or (iv) make any Restricted Investment (all such payments and other actions set forth in clauses (i) through (iv) above being collectively referred to as "RESTRICTED PAYMENTSRestricted Payments"), unless, at the time of and after giving effect to such Restricted Payment: (a) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof; and; (b) the Company Holdings would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Cash Flow Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 4.09 hereof4.10; and (c) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company Holdings and its Restricted Subsidiaries after the date of the Indenture (excluding Restricted Payments permitted by clauses (ii) and (iii) of the next succeeding paragraph)this Indenture, is less than the sum of of, without duplication, (i) 50% of the Consolidated Net Income of the Company Holdings for the period (taken as one accounting period) from the beginning of the first fiscal quarter commencing after the date of the this Indenture to the end of the Company's Holdings' most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit), plus (ii) to the extent not included in the amount described in clause (i) above, 100% of the aggregate net cash proceeds received after the date of this Indenture by the Company Holdings from the issue or sale since the date of the Indenture of of, or from additional capital contributions in respect of, Equity Interests of the Company or MSC (other than Disqualified Stock) Holdings or of Disqualified Stock or debt securities of the Company or MSC Holdings that have been converted into such into, or cancelled in exchange for, Equity Interests of Holdings (other than Equity Interests (or Disqualified Stock or convertible debt securities) sold to a Restricted Subsidiary or an Unrestricted Subsidiary of the Company Holdings and other than Disqualified Stock or convertible debt securities that have been converted into Disqualified StockStock and less the amount of any loans made pursuant to clause (vi) of the next succeeding paragraph), plus (iii) 100% of any cash dividends received by Holdings or a Wholly Owned Subsidiary after the date of the Indenture from an Unrestricted Subsidiary of Holdings, plus (iv) 100% of the cash proceeds realized upon the sale of any Unrestricted Subsidiary (less the amount of any reserve established for purchase price adjustments and less the maximum amount of any indemnification or similar contingent obligation for the benefit of the purchaser, any of its Affiliates or any other third party in such sale, in each case as adjusted for any permanent reduction in any such amount on or after the date of such sale, other than by virtue of a payment made to such Person) following the date of this Indenture, plus (v) to the extent that any Restricted Investment that was made after the date of the this Indenture is sold to an unaffiliated purchaser for cash or otherwise liquidated or repaid for cash, the lesser of (A) the cash return of capital proceeds realized with respect to such Restricted Investment (less the cost of disposition, if any) and (B) the initial amount of such Restricted Investment plus (iv) if any Unrestricted Subsidiary (A) is redesignated as a Restricted Subsidiary, the fair market value of such redesignated Subsidiary (as determined in good faith by the Board of Directors) as of the date of its redesignation or (B) pays any cash dividends or cash distributions to the Company or any of its Restricted Subsidiaries, 50% of any such cash dividends or cash distributions made after the date of the Indenture). The foregoing provisions 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 the this Indenture; (ii) the redemption, repurchase, retirement, defeasance or other acquisition making of any PARI PASSU or subordinated Indebtedness or Equity Interests of the Company or MSC Restricted Investment in exchange for, or out of the net cash proceeds of of, the substantially concurrent sale or issuance (other than to a Restricted Subsidiary of Holdings) of, or from substantially concurrent additional capital contributions in respect of, Equity Interests of Holdings (other than Disqualified Stock); (iii) the Companyredemption, repurchase, retirement or other acquisition of any Equity Interests of Holdings in exchange for, or out of the proceeds of, the substantially concurrent sale (other than to a Subsidiary of Holdings) of, or from substantially concurrent additional capital contributions in respect of, other Equity Interests of the Company or MSC Holdings (other than any Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such redemption, repurchase, retirement, defeasance or other acquisition shall be excluded from clause (c) (ii) of the preceding paragraph; (iiiiv) the defeasance, redemption, redemption or repurchase or other acquisition of PARI PASSU or 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 Holdings) of, or from substantially concurrent additional capital contributions in respect of, Equity Interests of Holdings (other than Disqualified Stock); (ivv) the declaration or payment of any dividend by a to Holdings for, or the direct repurchase, redemption or other acquisition or retirement for value of any Equity Interests of Holdings or any Restricted Subsidiary of the Company to the holders Holdings held by any member of Holdings' (or any of its Restricted Subsidiaries') management pursuant to any management agreement, stock option agreement or plan or stockholders agreement; provided that (X) the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests on a pro rata basisshall not exceed $2.0 million in any fiscal year (plus any amount available for such payments hereunder since the date of this Indenture which have not been used for such purpose) or (Y) $8.0 million in the aggregate (in each case, net of the cash proceeds received by Holdings from subsequent reissuances of such Equity Interests to new members of management); (vvi) loans to members of management of Holdings or any repurchase Restricted Subsidiary the proceeds of which are used for a concurrent purchase of Equity Interests of Holdings and a capital contribution in an amount equal to such proceeds to Holdings; (vii) payments in connection with the Company or MSC from present and former employees and directors application of the Company net proceeds of the Recapitalization as set forth under "Use of Proceeds" in the Offering Memorandum; (viii) payments to Holdings in respect of accounting, legal or other administrative expenses incurred by Holdings relating to the operations of Holdings in the ordinary course of business and in respect of fees and related expenses associated with registration statements filed with the Commission and subsequent ongoing public reporting requirements arising from the issuance of the Holdings' guarantee of the Senior Notes, the Senior Preferred Stock and the Exchange Debentures; provided that the aggregate amount of such payments does not exceed $500,000 in any fiscal year; (ix) so long as Holdings files consolidated income tax returns which include Anvil, payments to Holdings in an amount equal to the amount of income tax that Anvil would have paid if it had filed consolidated tax returns on a separate-company basis; (x) payments of director's fees and the reasonable expenses of its Subsidiaries or MSC directors in an aggregate amount not to exceed $5 million125,000 per year (including indemnification obligations and professional fees and expenses) by Holdings and payments to Holdings in respect thereof; (vixi) Permitted Investments; or (vii) other Restricted Payments payments to Holdings in an aggregate amount not to exceed $5 million200,000 in aggregate to enable Holdings to make payments to holders of its Capital Stock in lieu of issuing fractional shares thereof; (xii) any payments on the Senior Preferred Stock in connection with the exchange thereof into Exchange Debentures; (xiii) the acquisition and issuance of Senior Preferred Stock by Holdings in connection with the exchange offer contemplated by the Registration Rights Agreement; (xiv) the making of any principal payment on, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness that is subordinated to the Exchange Debentures out of Excess Proceeds available for general corporate purposes after consummation of purchases of Exchange Debentures pursuant to an Asset Sale Offer; (xv) the declaration and payment of any dividend or the making of any other distribution for the purpose of funding any payment in respect of or repurchase or redemption of the Senior Preferred Stock or the Exchange Debentures; and (xvi) the repurchase of the Senior Preferred Stock or the Exchange Debentures in connection with an offer required to be made therefor in connection with a Change of Control provided that Anvil has previously paid all amounts required to be paid in connection with any Change of Control Offer for the Senior Notes; provided however that in the case of any transaction described in clauses (i), (ii), (iii), (iv) and (v) no Default or Event of Default will have occurred and be continuing immediately after such transaction. In determining the aggregate amount of Restricted Payments made after the date of hereof, 100% of the amounts expended pursuant to the foregoing clauses (ii), (iii), (iv)(Y), (v) and (vi) shall be included in such calculation and none of the amounts expended pursuant to the foregoing clauses (i), (iv)(X), (vii), (viii), (ix), (x), (xi), (xii), (xiii), (xiv), (xv) and (xvi) shall be included in such calculation. As of the date of this Indenture, all of Holdings' 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 Holdings and its Restricted Subsidiaries (except to the extent repaid in cash) in the Subsidiary so designated will shall be deemed to be Restricted Payments at the time of such designation and will shall reduce the amount available for Restricted Payments under the first paragraph of this covenant. 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 (as determined in good faith by the Board of Directors). 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 amount of all Restricted Payments (other than cash) shall be the greater of (i) book value and (ii) 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 Holdings 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, such determination to be based upon an opinion or appraisal issued by an accounting, appraisal or investment banking firm of national standing if such fair market value exceeds $10.0 million. Not later than the date of making any Restricted Payment, the Company Holdings 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 covenant were computed, together with a copy of any fairness opinion or appraisal required by the Indenturewhich calculations may be based upon Holdings' latest available financial statements.

Restricted Payments. From and after the date hereof the The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly: : (i) declare or pay any dividend or make any other payment or distribution on account of the Company's Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company or any of its Restricted Subsidiaries' Equity Interests ) or to the direct or indirect holders of the Company's or any of its Restricted Subsidiaries' Equity Interests in their capacity as such (other than dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company); ; (ii) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or any direct or indirect parent of the Company (other than any such Equity Interests owned by the Company or any Restricted Subsidiary of the Company; ); (iii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness that is PARI PASSU with or subordinated to the Notes (other than or the Notes and the 2003 Notes)Subsidiary Guarantees, except a payment of interest or principal at the Stated MaturityMaturity thereof; or or (iv) make any Restricted Investment (all such payments and other actions set forth in clauses (i) through (iv) above being collectively referred to as "RESTRICTED PAYMENTSRestricted Payments"), unless, at the time of and after giving effect to such Restricted Payment: (ai) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof; and; (bii) the Company would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable fourFour-quarter periodQuarter Period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Cash Flow Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 4.09 hereof; and (ciii) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after the date of the Indenture December 29, 2002 (excluding Restricted Payments permitted by clauses (iiiii), (iv), (vi), (vii), (viii), (ix) and (iiixi) of the next succeeding paragraph), is less than the sum of sum, without duplication, of (iA) 50% of the Consolidated Net Income of the Company for the period (taken as one accounting period) from the beginning of the first fiscal quarter commencing after the date of the Indenture December 29, 2002 to the end of the Company's most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit), plus plus (iiB) 100% of the aggregate net cash proceeds received by the Company (other than from a Restricted Subsidiary) since December 29, 2002 as a contribution to its common equity capital or from the issue or sale since the date of the Indenture of Equity Interests of the Company or MSC (other than Disqualified Stock) or from the issue or sale of convertible or exchangeable Disqualified Stock or convertible or exchangeable debt securities of the Company or MSC that have been converted into or exchanged for such Equity Interests (other than Equity Interests (or Disqualified Stock or convertible debt securities) sold to a Subsidiary of the Company and other than Disqualified Stock or convertible debt securities that have been converted into Disqualified StockCompany), plus plus (iiiC) to the extent that any Restricted Investment that was made after the date of the Indenture December 29, 2002 is sold for cash or otherwise liquidated or repaid for cash, the lesser of (Ai) the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any) and (Bii) the initial amount of such Restricted Investment plus (iv) if any Unrestricted Subsidiary (A) is redesignated as a Restricted Subsidiary, the fair market value of such redesignated Subsidiary (as determined in good faith by the Board of Directors) as of the date of its redesignation or (B) pays any cash dividends or cash distributions to the Company or any of its Restricted Subsidiaries, 50% of any such cash dividends or cash distributions made after the date of the IndentureInvestment. The foregoing preceding provisions shall 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 the Indenture; (ii) the redemption, repurchase, retirement, defeasance or other acquisition of any PARI PASSU or subordinated Indebtedness or Equity Interests of the Company or MSC in exchange for, or out of the net cash proceeds of the substantially concurrent sale or issuance (other than to a Restricted Subsidiary of the Company) of, other Equity Interests of the Company or MSC (other than any Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such redemption, repurchase, retirement, defeasance or other acquisition shall be excluded from clause (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 Equity Interests on a pro rata basis; (v) any repurchase of Equity Interests of the Company or MSC from present and former employees and directors of the Company or its Subsidiaries or MSC in an aggregate amount not to exceed $5 million; (vi) Permitted Investments; or (vii) other Restricted Payments in an aggregate amount not to exceed $5 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 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 covenant. 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 (as determined in good faith by the Board of Directors). 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 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 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, such determination to be based upon an opinion or appraisal issued by an accounting, appraisal or investment banking firm of national standing if such fair market value exceeds $10.0 million. Not later than 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 covenant were computed, together with a copy of any fairness opinion or appraisal required by the Indenture.prohibit:

Restricted Payments. From and after the date hereof the (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly: : (i1) declare or pay any dividend or make any other payment or distribution on account of the Company's ’s or any of its Restricted Subsidiaries' ’ Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company or any of its Restricted Subsidiaries) or to the direct or indirect holders of the Company's ’s or any of its Restricted Subsidiaries' ’ Equity Interests in their capacity as such (other than (x) dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company, (y) dividends or distributions payable to the Company or a Restricted Subsidiary of the Company and (z) purchases of Equity Interests of, and capital contributions to, Restricted Subsidiaries); ; (ii2) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or any direct or indirect parent of the Company; ; (iii3) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any (x) Indebtedness of the Company or any Guarantor that is PARI PASSU with or contractually subordinated in right of payment to the Notes or to any Note Guarantee, (other than y) Junior Lien Debt or (z) unsecured Indebtedness (excluding in all cases any intercompany Indebtedness between or among the Notes Company and the 2003 Notesany of its Restricted Subsidiaries), except a except, in each case, any payment of interest or principal at the Stated MaturityMaturity thereof; or or (iv4) make any Restricted Investment (all such payments and other actions set forth in these clauses (i1) through (iv4) above of this Section 4.07(a) being collectively referred to as "RESTRICTED PAYMENTS"“Restricted Payments”), unless, at the time of and after giving effect to such Restricted Payment: (aA) no Default or Event of Default shall have has occurred and be is continuing or would occur as a consequence thereof; and (b) the Company would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at Payment; (B) the beginning Consolidated EBITDA of the applicable Company for the most recent four-quarter periodperiod for which internal financial statements are available, have been permitted determined on a pro forma basis after giving effect to incur at least $1.00 all acquisitions or dispositions of additional Indebtedness pursuant to the Cash Flow Coverage Ratio test set forth in the first paragraph of Section 4.09 hereof; and (c) such Restricted Payment, together with the aggregate amount of all other Restricted Payments assets made by the Company and its Subsidiaries after from the beginning of such quarter or four-quarter period and determined on a pro forma basis for such Restricted Payment, as applicable, through and including the date of the Indenture proposed Restricted Payment (excluding including any related financing transactions) as if such acquisitions, dispositions, and Restricted Payments permitted by clauses (ii) and (iii) of the next succeeding paragraph), is less than the sum of (i) 50% of the Consolidated Net Income of the Company for the period (taken as one accounting period) from had occurred at the beginning of the first fiscal such quarter commencing after the date of the Indenture to the end of the Company's most recently ended fiscal or four-quarter for which internal financial statements are available at the time of such Restricted Payment period, as applicable, was greater than $25 million; and (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit), plus (iiC) 100% of the aggregate net cash proceeds received by the Company from the issue or sale since the date would have at least $5.0 million of the Indenture of Equity Interests of the Company or MSC (other than Disqualified Stock) or of Disqualified Stock or debt securities of the Company or MSC that have been converted into such Equity Interests (other than Equity Interests (or Disqualified Stock or convertible debt securities) sold to Liquidity on a Subsidiary of the Company and other than Disqualified Stock or convertible debt securities that have been converted into Disqualified Stock), plus (iii) to the extent that any Restricted Investment that was made pro forma basis after the date of the Indenture is sold for cash or otherwise liquidated or repaid for cash, the lesser of (A) the cash return of capital with respect giving effect to such Restricted Investment Payment. (less the cost b) The provisions of disposition, if anySection 4.07(a) and hereof will not prohibit: (B) the initial amount of such Restricted Investment plus (iv) if any Unrestricted Subsidiary (A) is redesignated as a Restricted Subsidiary, the fair market value of such redesignated Subsidiary (as determined in good faith by the Board of Directors) as of the date of its redesignation or (B) pays any cash dividends or cash distributions to the Company or any of its Restricted Subsidiaries, 50% of any such cash dividends or cash distributions made after the date of the Indenture. The foregoing provisions shall not prohibit (i1) the payment of any dividend or the consummation of any irrevocable redemption within 60 sixty (60) days after the date of declaration thereofof the dividend or giving of the redemption notice, as the case may be, if at said the date of declaration such or notice, the dividend or redemption payment would have complied with the provisions of the this Indenture; ; (ii2) the redemption, repurchase, retirement, defeasance or other acquisition making of any PARI PASSU or subordinated Indebtedness or Equity Interests of the Company or MSC Restricted Payment in exchange for, or out of or with the net cash proceeds of the substantially concurrent a sale or issuance (other than to a Restricted Subsidiary of the Company) of, other Equity Interests of the Company or MSC (other than any Disqualified Stock)) or contribution of common equity capital to the Company; provided that (a) such Restricted Payment is made within sixty (60) days of any such sale of Equity Interests or contribution of common equity capital and (b) the amount of any such net cash proceeds that are utilized for any such redemption, repurchase, retirement, defeasance or other acquisition shall Restricted Payment will not 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 considered to be net cash proceeds from an incurrence Equity Offering for purposes of Permitted Refinancing Indebtedness; Section 3.01 hereof; (iv3) the payment of any dividend (or, in the case of any partnership or limited liability company, any similar distribution) by a Restricted Subsidiary of the Company to the holders of its Equity Interests on a pro rata basis; ; (v4) the repurchase, redemption, defeasance or other acquisition or retirement for value of Indebtedness of the Company or any Subsidiary Guarantor with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness within sixty (60) days of such incurrence; (5) the repurchase of Equity Interests deemed to occur upon the exercise of stock options, warrants or other convertible or exchangeable securities to the extent such Equity Interests represent a portion of the exercise price of those stock options, warrants or other convertible or exchangeable securities; (6) the repurchase, redemption, defeasance or other acquisition or retirement for value of Indebtedness of the Company or MSC any Subsidiary Guarantor at a purchase price not greater than 101.0% of the principal amount thereof, together with accrued interest, if any, thereon, in the event of a “change of control” in accordance with the terms thereof, which event (a) requires that the Company or such Guarantor make an offer to purchase such Indebtedness in accordance with the terms thereof and (b) would also constitute a Change of Control under this Indenture; provided that prior to any such purchase a Change of Control Offer has been made in accordance with the terms hereof and the Issuers have purchased all Notes validly tendered for payment in connection with such Change of Control Offer; (7) regardless of whether a Default then exists, the payment of any dividend or distribution to the extent necessary to permit direct or indirect beneficial owners of shares of Equity Interest of the Company to pay federal, state or local income tax liabilities that would arise solely from present and former employees and directors income of the Company or any of its Restricted Subsidiaries, as the case may be, for the relevant taxable period and attributable to them solely as a result of the Company (and any intermediate entity through which the holder owns such shares) or any of its Restricted Subsidiaries being a limited liability company, partnership or MSC similar entity for federal income tax purposes; (8) a Restricted Payment to pay for the repurchase, redemption or other acquisition or retirement for value of Equity Interests (other than Disqualified Stock) of the Company held by any future, present or former employee, director or Officer of the Company or any of its Restricted Subsidiaries pursuant to any management equity plan or stock option plan or any other management or employee benefit plan or agreement or arrangement; provided, however, that (x) the aggregate Restricted Payments made under this clause (8) do not exceed in an aggregate amount not any calendar year $2.5 million (with unused amounts in any calendar year being carried over to exceed succeeding calendar years subject to a maximum of $5 million5.0 million in any calendar year) and the Company would have at least $5.0 million of Liquidity on a pro forma basis after giving effect to any Restricted Payment made under this clause (8); (9) any Restricted Payment made in connection with the Transactions; (10) the payment of cash in lieu of fractional shares of Capital Stock in connection with any transaction otherwise permitted under the Indenture; and (vi11) Permitted Investments; so long as no Default or (vii) Event of Default has occurred and is continuing, other Restricted Payments in an aggregate amount not to exceed $5 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 1.0 million since 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 date of this covenant. 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 Indenture. (as determined in good faith by the Board of Directors). 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. c) The amount of all Restricted Payments (other than cash) shall will 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 by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value For purposes of any non-cash determining compliance with this Section 4.07, in the event that a Restricted Payment shall meets the criteria of more than one of the categories of Restricted Payments described in Section 4.07(b)(1) through (11) above, or is permitted pursuant to Section 4.07(a) hereof, the Company will be determined in good faith by the Board of Directors whose resolution with respect thereto shall be delivered entitled to the Trustee, classify such determination to be based upon an opinion Restricted Payment (or appraisal issued by an accounting, appraisal or investment banking firm of national standing if such fair market value exceeds $10.0 million. Not later than portion thereof) on the date of making any Restricted Payment, the Company shall deliver to the Trustee an Officers' Certificate stating that its payment or later reclassify such Restricted Payment is permitted and setting forth the basis upon which the calculations required by (or portion thereof) in any manner that complies with this covenant were computed, together with a copy of any fairness opinion or appraisal required by the IndentureSection 4.07.

Restricted Payments. From and after the date hereof the (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiaries to, directly or indirectly: : (i1) declare or pay any dividend or make any other payment or distribution on account of the Company's ’s or any of its Restricted Subsidiaries' ’ Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company or any of its Restricted Subsidiaries) or to the direct or indirect holders of the Company's ’s or any of its Restricted Subsidiaries' ’ Equity Interests in their capacity as such (other than dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company and other than dividends or distributions payable to the Company or a Restricted Subsidiary of the Company); ; (ii2) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or any direct or indirect parent of the Company; Company (iiiother than any such Equity Interests owned by the Company or any of its Restricted Subsidiaries); (3) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness of the Company or any Guarantor that is PARI PASSU with or contractually subordinated to the Notes or to any Note Guarantee (other than excluding any intercompany Indebtedness between or among the Notes Company and the 2003 Notesany of its Restricted Subsidiaries), except a payment of interest or principal at the Stated MaturityMaturity thereof; or or (iv4) make any Restricted Investment (all such payments and other actions set forth in these clauses (i1) through (iv4) above being collectively referred to as "RESTRICTED PAYMENTS"“Restricted Payments”), unless, at the time of and after giving effect to such Restricted Payment: (a) no Default or Event of Default shall have has occurred and be is continuing or would occur as a consequence thereof; andof such Restricted Payment; (b) the Company would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Cash Flow Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 4.09 hereof4.09(a); and (c) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after since the date of the this Indenture (excluding Restricted Payments permitted by clauses (ii2) and through (iii11) of the next succeeding paragraphSection 4.07(b)), is less than the sum of sum, without duplication, of: (i1) 50% of the Consolidated Net Income of the Company for the period (taken as one accounting period) from the beginning of the first fiscal quarter commencing after the date of the Indenture October 1, 2009 to the end of the Company's ’s most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit), plus ; plus (ii2) 100% of the aggregate net cash proceeds received by the Company since the date of this Indenture as a contribution to its common equity capital or from (x) the issue or sale since the date of the Indenture of Equity Interests of the Company or MSC (y) from the issue or sale of convertible or exchangeable Disqualified Stock of the Company or convertible or exchangeable debt securities of the Company (including any additional net proceeds received by the Company upon such conversion or exchange) that, in the case of this clause (y), have been converted into or exchanged for Equity Interests of the Company (other than Disqualified Stock) Equity Interests and convertible or of exchangeable Disqualified Stock or debt securities of the Company or MSC that have been converted into such Equity Interests (other than Equity Interests (or Disqualified Stock or convertible debt securities) sold to a Subsidiary of the Company and other than Disqualified Stock or convertible debt securities that have been converted into Disqualified StockCompany), plus ; plus (iii3) to the extent that any Restricted Investment that was made after the date of the this Indenture is sold for cash or otherwise liquidated or repaid for cash, the lesser of (A) the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any) and (B) the initial amount of cash received upon such Restricted Investment plus sale, liquidation or repayment; plus (iv4) if to the extent that any Unrestricted Subsidiary (A) of the Company is redesignated as a Restricted Subsidiary, the fair market value lesser of (i) the Fair Market Value of the Company’s Restricted Investment in such redesignated Subsidiary (as determined in good faith by the Board of Directors) as of the date of its such redesignation or (Bii) pays any cash dividends the aggregate amount of Restricted Investments of the Company and its Restricted Subsidiaries in such Subsidiary at or cash distributions subsequent to the Company or any of its Restricted Subsidiaries, time that such Subsidiary was designated an Unrestricted Subsidiary; plus (5) 50% of any such dividends received in cash dividends or cash distributions made after the date of the Indenture. The foregoing provisions 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 the Indenture; (ii) the redemption, repurchase, retirement, defeasance or other acquisition of any PARI PASSU or subordinated Indebtedness or Equity Interests of by the Company or MSC in exchange for, or out of the net cash proceeds of the substantially concurrent sale or issuance (other than to a Restricted Subsidiary of the Company) of, other Equity Interests of the Company or MSC (other than any Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such redemption, repurchase, retirement, defeasance or other acquisition shall be excluded from clause (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 after the date of this Indenture from an Unrestricted Subsidiary of the Company, to the holders of its Equity Interests on a pro rata basis; (v) any repurchase of Equity Interests extent that such dividends were not otherwise included in the Consolidated Net Income of the Company or MSC from present and former employees and directors of the Company or its Subsidiaries or MSC in an aggregate amount not to exceed $5 million; (vi) Permitted Investments; or (vii) other Restricted Payments in an aggregate amount not to exceed $5 million. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if for 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 at the time of such designation and will reduce the amount available for Restricted Payments under the first paragraph of this covenant. 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 (as determined in good faith by the Board of Directors). 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 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 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, such determination to be based upon an opinion or appraisal issued by an accounting, appraisal or investment banking firm of national standing if such fair market value exceeds $10.0 million. Not later than 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 covenant were computed, together with a copy of any fairness opinion or appraisal required by the Indentureperiod.

Restricted Payments. From and after the date hereof the The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly: (i) declare or pay any dividend or make any other payment or distribution on account of the Company's or any of its Restricted Subsidiaries' Subsidiary's Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company or any Restricted Subsidiary) or to the any direct or indirect holders of the Company's or any of its Restricted Subsidiaries' Equity Interests in their capacity as such (other than dividends or distributions (a) payable in Equity Interests (other than Disqualified Stock) of the Company or (b) to the Company or any Wholly Owned Restricted Subsidiary of the Company); (ii) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or any of its Restricted Subsidiaries or any direct or indirect parent of the CompanyCompany (other than any such Equity Interests owned by the Company or any Restricted Subsidiary of the Company or Permitted Investments); (iii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness of the Company or any Restricted Subsidiary that is PARI PASSU with or subordinated to the Notes (other than or any guarantee of the Notes and the 2003 Notes), except a payment of interest or principal at Stated Maturity; or (iv) make any Restricted Investment (all such payments and other actions set forth in clauses (i) through (iv) above being collectively referred to as "RESTRICTED PAYMENTSRestricted Payments"), unless, at the time of and after giving effect to such Restricted Payment: (a) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof; and (b) the Company would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Debt to Cash Flow Coverage Ratio test set forth in the first paragraph of Section 4.09 hereof; , and (c) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after the date of the Indenture hereof (excluding Restricted Payments permitted by clauses (ii), (iii) and (iiivi) of the next succeeding paragraph), is less than the sum sum, without duplication, of (i) 50% of the Consolidated Net Income of the Company for the period (taken as one accounting period) from the beginning of the first fiscal quarter commencing after the date of the Indenture hereof to the end of the Company's most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit), plus (ii) 100% of the aggregate net cash proceeds received by the Company as a contribution to its common equity capital or from the issue or sale since the date of the Indenture hereof of Equity Interests of the Company or MSC (other than Disqualified Stock) or from the issue or sale of Disqualified Stock or debt securities of the Company or MSC that have been converted into such Equity Interests (other than Equity Interests (or Disqualified Stock or convertible debt securities) sold to a Subsidiary of the Company and other than Disqualified Stock or convertible debt securities that have been converted into Disqualified Stock), plus (iii) 50% of any dividends received by the Company or a Wholly Owned Restricted Subsidiary after the date hereof from an Unrestricted Subsidiary of the Company, to the extent that such dividends were not otherwise included in Consolidated Net Income of the Company for such period, plus (iv) to the extent that any Restricted Investment that was made after the date of the Indenture hereof is sold for cash or otherwise liquidated or repaid for cash, the lesser of (A) the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any) and (B) the initial amount of such Restricted Investment plus (iv) if any Unrestricted Subsidiary (A) is redesignated as a Restricted Subsidiary, the fair market value of such redesignated Subsidiary (as determined in good faith by the Board of Directors) as of the date of its redesignation or (B) pays any cash dividends or cash distributions to the Company or any of its Restricted Subsidiaries, 50% of any such cash dividends or cash distributions made after the date of the IndentureInvestment. The foregoing provisions shall 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 such payment would have complied with the provisions of the this Indenture; (ii) the redemption, repurchase, retirement, defeasance or other acquisition of any PARI PASSU Equity Interests of Company or subordinated Indebtedness or Equity Interests of the Company or MSC any Guarantor in exchange for, or out of the net cash proceeds of the substantially concurrent sale or issuance (other than to a Restricted Subsidiary of the Company) of, other Equity Interests of the Company or MSC (other than any Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such redemption, repurchase, retirement, defeasance or other acquisition shall be excluded from clause (c) (iic)(ii) of the preceding paragraph; and, provided further, that no Default or Event of Default shall have occurred and be continuing immediately after such transaction; (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; provided that no Default or Event of Default shall have occurred and be continuing immediately after such transaction; (iv) the payment of any dividend by a Restricted Subsidiary of the Company to the holders of its Equity Interests on a pro rata basis; (v) the repurchase, redemption or other acquisition or retirement for value of any repurchase of Equity Interests of the Company or MSC from present 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 pursuant to any management equity subscription agreement, stock option agreement or other similar agreement; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall not exceed $250,000 in any twelve-month period and former employees no Default or Event of Default shall have occurred and directors be continuing immediately after such transaction; and (vi) the repurchase, redemption or other acquisition or retirement for value or payment made in respect of any Equity Interests of the Company or its Subsidiaries or MSC in an aggregate amount not to exceed $5 million; (vi) Permitted Investments; or (vii) other Restricted Payments in an aggregate amount not to exceed $5 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 pursuant to any of the agreements relating to the extent repaid Pending Acquisitions, each as in cash) in effect on the Subsidiary so designated will date hereof; provided that no Default or Event of Default shall have occurred and be deemed to be Restricted Payments at the time of continuing immediately after such designation and will reduce the amount available for Restricted Payments under the first paragraph of this covenant. 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 (as determined in good faith by the Board of Directors). 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 Subsidiarytransaction. 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, such determination to be based upon an opinion or appraisal issued by an accounting, appraisal or investment banking firm of national standing if such fair market value exceeds $10.0 million. Not later than 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 covenant Section 4.07 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 the aggregate fair market value of all outstanding Investments by the Company and its Restricted Subsidiaries in the Subsidiary so designated will be deemed to be a Restricted Payment at the time of such designation and will reduce the amount available for Restricted Payments under the first paragraph of this covenant. Such designation will only be permitted if such Restricted Payment would be permitted at such time and if such 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). 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 the IndentureEvent of Default would be in existence immediately following such designation.

Restricted Payments. From and after the date hereof the The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly: : (i) declare or pay any dividend or make any other payment or distribution on account of its Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company or any Restricted Subsidiary of the Company's or any of its Restricted Subsidiaries' Equity Interests ) or to the direct or indirect holders of the Company's or any of its Restricted Subsidiaries' Equity Interests in their capacity as such (such, other than dividends or distributions payable (a) in Equity Interests (other than Disqualified Stock) of the Company); ) (b) to the Company or any Subsidiary of the Company, or (c) in the case of dividends or distributions payable by any Restricted Subsidiary of the Company, pro rata to the holders of such Subsidiary’s Equity Interests; (ii) purchase, redeem or otherwise acquire or retire for value (including without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or any direct or indirect parent of the Company; ; (iii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness of the Company or any of its Subsidiaries that is PARI PASSU with or contractually subordinated to the Notes or any Note Guarantee (other than excluding any intercompany Indebtedness between or among the Notes Company and the 2003 Notesany of its Subsidiaries), except a payment of interest or principal at Stated Maturitythe maturity date; or or (iv) make any Restricted Investment (Investment, all such payments and other actions set forth in clauses (i) through (iv) above being collectively referred to as "RESTRICTED PAYMENTS"“Restricted Payments” unless, solely with respect to any payment or other action that would otherwise constitute a Restricted Payment as set forth in clause (i), unless(ii) or (iv) above, at the time of and after giving effect to such Restricted Payment: (a1) no Default or Event of Default shall have has occurred and be is continuing or would occur as a consequence thereof; andof such Restricted Payment; (b2) the Company would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to be in compliance with the Cash Flow Fixed Charge Coverage Ratio test set forth in for the first paragraph of Section 4.09 hereoffour most recently ended full fiscal quarters for which internal financial statements are available; and (c3) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after since the date of the Indenture indenture (excluding Restricted Payments permitted by clauses (ii) through and including (iiivii)) of the next succeeding paragraph), is less than the sum of sum, without duplication, of: (ia) 50% of the Consolidated Net Income of the Company for the period (taken as one accounting period) from the beginning of the first fiscal quarter commencing after the date of the Indenture indenture to the end of the Company's ’s most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit), plus ; plus (iib) 100% of the aggregate net cash proceeds received by the Company since the date of the indenture as a contribution to its common equity capital or from the issue or sale since the date of the Indenture of Equity Interests of the Company or MSC (other than Disqualified Stock) or from the issue or sale of convertible or exchangeable Disqualified Stock or convertible or exchangeable debt securities of the Company or MSC that have been converted into or exchanged for such Equity Interests (other than Equity Interests (or Disqualified Stock or convertible debt securities) sold to a Subsidiary of the Company and other than Disqualified Stock or convertible debt securities that have been converted into Disqualified StockCompany), plus ; plus (iiic) to the extent that any Restricted Investment that was made after the date of the Indenture indenture is sold for cash or otherwise liquidated or repaid for cash, the lesser of (Ai) the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any) and (Bii) the initial amount of such Restricted Investment plus Investment; plus (ivd) if to the extent that any Unrestricted Subsidiary (A) of the Company designated as such after the date of the indenture is redesignated as a Restricted SubsidiarySubsidiary after the date of the indenture, the fair market value lesser of (i) the Fair Market Value of the Company’s Investment in such redesignated Subsidiary (as determined in good faith by the Board of Directors) as of the date of its such redesignation or (Bii) pays any cash dividends or cash distributions to such Fair Market Value as of the Company or any of its Restricted Subsidiaries, 50% of any date on which such cash dividends or cash distributions made Subsidiary was originally designated as an Unrestricted Subsidiary after the date of the Indentureindenture; plus (e) 50% of any dividends received by the Company or a Restricted Subsidiary of the Company after the date of the indenture from an Unrestricted Subsidiary of the Company, to the extent that such dividends were not otherwise included in the Consolidated Net Income of the Company for such period. The So long as no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof, the foregoing provisions shall not prohibit prohibit: (i) the payment of any dividend or the consummation of any irrevocable redemption within 60 days after the date of declaration thereofof the dividend or giving of the redemption notice, as the case may be, if at said the date of declaration such or notice, the dividend or redemption payment would have complied with the provisions of the this Indenture; ; (ii) the redemption, repurchase, retirement, defeasance or other acquisition making of any PARI PASSU or subordinated Indebtedness or Equity Interests Restricted Payment (other than a Restricted Payment as defined in clause (iii) of the Company or MSC definition of Restricted Payment) in exchange for, or out of the net cash proceeds of the substantially concurrent sale or issuance (other than to a Restricted Subsidiary of the CompanyCompany or a Guarantor) of, Equity Interests of the Company (other than Disqualified Stock) or from the substantially concurrent contribution of common equity capital to the Company; (iii) the redemption, repurchase, defeasance or other acquisition or retirement for value of Indebtedness of the Company or its Subsidiaries that is contractually subordinated or subordinated with respect to security interests to the Notes or any Note Guarantee with the net cash proceeds from a substantially concurrent incurrence of Permitted Refinancing Indebtedness; (iv) the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or MSC (other than any Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such redemption, repurchase, retirement, defeasance or other acquisition shall be excluded from clause (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 held by any current or former officer, director or employee of the holders Company or any of its Restricted Subsidiaries in order to pay or satisfy such officer’s, director’s or employee’s aggregate exercise price or withholding tax payment obligations pursuant to awards granted under the Company’s equity incentive, stock option, restricted stock or other long-term equity compensation plans; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests on a pro rata basismay not exceed $2,000,000 in the aggregate; and (v) any the repurchase of Equity Interests of the Company or MSC from present and former employees and directors deemed to occur upon the exercise of the Company or its Subsidiaries or MSC in an aggregate amount not to exceed $5 million; (vi) Permitted Investments; or (vii) other Restricted Payments in an aggregate amount not to exceed $5 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 stock options to the extent repaid in cash) in such Equity Interests represent a portion of the Subsidiary so designated will be deemed to be Restricted Payments at the time exercise price of such designation and will reduce the amount available for Restricted Payments under the first paragraph of this covenant. 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 (as determined in good faith by the Board of Directors). 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 Subsidiarythose stock options. 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 by the Company or such Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value 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, 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 Fair Market Value exceeds $10.0 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 covenant Section 5.07 were computed, together with a copy of any fairness opinion or appraisal required by the this Indenture.

Restricted Payments. From and after the date hereof the Company shall Loral Space will not, and shall will not permit any of its Subsidiaries Restricted Subsidiary to, directly or indirectly: : (i1) declare or pay any dividend or make any other payment or distribution on account of the CompanyLoral Space's or any of its Restricted Subsidiaries' Equity Interests (including, without limitation, any distribution, dividend or payment in connection with any merger or consolidation involving Loral Space or any of its Restricted Subsidiaries) or to the direct or indirect holders of the CompanyLoral Space's or any of its Restricted Subsidiaries' Equity Interests in their capacity as such (other than dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the CompanyLoral Space or to Loral Space or a Restricted Subsidiary or Loral Space); ; (ii2) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving Loral Space) any Equity Interests of the Company Loral Space, any Restricted Subsidiary of Loral Space or any direct or indirect parent of the Company; Loral Space; (iii3) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness that is PARI PASSU with or subordinated junior in right of payment to this Guaranty of the Notes (other than the Notes and the 2003 Subordinated Notes), except a the scheduled payment of interest or principal at the Stated MaturityMaturity thereof; or or (iv4) make any Restricted Investment (all such payments and other actions set forth in clauses (i1) through (iv4) above being collectively referred to as "RESTRICTED PAYMENTSRestricted Payments"), unless, at the time of and after giving effect to such Restricted Payment: (a1) no Loral Space Default or Event of Default Loral Space shall have occurred and be continuing or would occur as a consequence thereof; and (b2) the Company Loral Space would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Cash Flow Coverage Ratio either test set forth in the first proviso to paragraph (a) of Section 4.09 hereof4.05; and (c3) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company Loral Space and its Restricted Subsidiaries after the date of the Indenture Issue Date (excluding Restricted Payments permitted by clauses (ii2), (3), (4) and (iii6) of the next succeeding paragraph), paragraph (b) of this Section 4.04) is less than the sum of sum, without duplication, of: (iA) 50% of the Consolidated Net Income of the Company Loral Space for the period (taken as one accounting period) from the beginning of the first fiscal quarter commencing after the date of the Indenture Issue Date to the end of the CompanyLoral Space's most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit), plus ; plus (iiB) 100% of the aggregate net cash proceeds received by Loral Space since the Company Issue Date as a contribution to its common equity capital or from the issue or sale since the date of the Indenture of Equity Interests of the Company or MSC Loral Space (other than Disqualified Stock) or from the issue or sale of Disqualified Stock or debt securities of the Company or MSC Loral Space that have been converted into or exchanged for such Equity Interests (other than Equity Interests (or Disqualified Stock or convertible debt securities) sold to a Subsidiary of Loral Space), except to the Company extent such net cash proceeds are used to increase the amount of dividends on Preferred Stock of Loral Space or the amount of Restricted Investments that may be made pursuant to clause (7) of paragraph (b) of this Section 4.04; plus (C) 100% of the fair market value (as determined by the Board of Directors and evidenced by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the Holders of the Subordinated Notes) of assets used or useful in a Permitted Business received by Loral Space since the Issue Date as a contribution to its common equity capital or from the issue or sale of Equity Interests of Loral Space (other than Disqualified Stock or convertible debt securities that have been converted into Disqualified Stock), plus ; plus (iiiD) to the extent that not already included in Consolidated Net Income of Loral Space for such period, if any Restricted Investment that was made by Loral Space or any Restricted Subsidiary after the date of the Indenture Issue Date is sold for cash or otherwise liquidated or repaid for cash, the lesser of 18 (Ai) the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any) and (Bii) the initial amount of such Restricted Investment plus or designated amount of Unrestricted Subsidiary; plus (ivE) if to the extent that any Unrestricted Subsidiary (A) is redesignated designated by Loral Space as a Restricted SubsidiarySubsidiary after the Issue Date, the fair market value of such redesignated Subsidiary (as determined in good faith by the Board of Directors) as of the date of its redesignation or (B) pays any cash dividends or cash distributions an amount equal to the Company or any lesser of its Restricted Subsidiaries, 50% of any such cash dividends or cash distributions made after the date of the Indenture. The foregoing provisions shall not prohibit (i) the payment net book value of any dividend within 60 days after the date of declaration thereof, if at said date of declaration Loral Space's Investment in such payment would have complied with the provisions of the Indenture; (ii) the redemption, repurchase, retirement, defeasance or other acquisition of any PARI PASSU or subordinated Indebtedness or Equity Interests of the Company or MSC in exchange for, or out of the net cash proceeds of the substantially concurrent sale or issuance (other than to a Restricted Subsidiary of the Company) of, other Equity Interests of the Company or MSC (other than any Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such redemption, repurchase, retirement, defeasance or other acquisition shall be excluded from clause (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 Equity Interests on a pro rata basis; (v) any repurchase of Equity Interests of the Company or MSC from present and former employees and directors of the Company or its Subsidiaries or MSC in an aggregate amount not to exceed $5 million; (vi) Permitted Investments; or (vii) other Restricted Payments in an aggregate amount not to exceed $5 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 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 covenant. All such outstanding Investments will be deemed to constitute Investments in an amount equal to (ii) the fair market value of Loral Space's Investment in such Investments Unrestricted Subsidiary at the time of such designation (as determined in good faith by the Board of Directors). 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 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 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, such determination to be based upon an opinion or appraisal issued by an accounting, appraisal or investment banking firm of national standing if such fair market value exceeds $10.0 million. Not later than 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 covenant were computed, together with a copy of any fairness opinion or appraisal required by the Indenturedesignation.

Restricted Payments. From and after the date hereof the (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly: : (i1) declare or pay any dividend or make any other payment or distribution on account of the Company's or any of its Restricted Subsidiaries' Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company or any of its Restricted Subsidiaries) or to the direct or indirect holders of the Company's or any of its Restricted Subsidiaries' Equity Interests in their capacity as such (other than dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the CompanyCompany and other than dividends or distributions payable to the Company or a Guarantor or, in the case of a Restricted Subsidiary that is not a Guarantor, to the Company or any Restricted Subsidiary); ; (ii2) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or any direct or indirect parent of the Company held by a Person other than the Company or a Restricted Subsidiary of the Company; ; (iii3) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value value, any Indebtedness that is PARI PASSU with or subordinated by its terms in right of payment to the Notes (other than or the Notes and the 2003 Notes)Subsidiary Guarantees, except a payment payments of interest or principal at the Stated MaturityMaturity thereof; or or (iv4) make any Restricted Investment (all such payments and other actions set forth in these clauses (i1) through (iv4) above being collectively referred to as "RESTRICTED PAYMENTSRestricted Payments"), unless, at the time of and after giving effect to such Restricted Payment: (a5) no Default or Event of Default shall have has occurred and be is continuing or would occur as a consequence thereof; andof such Restricted Payment; (b6) the Company would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-four quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Cash Flow Consolidated Coverage Ratio test set forth in the first paragraph of Section 4.09 hereof4.09(a); and (c7) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after the date of the Indenture Issue Date (excluding Restricted Payments permitted by clauses (ii2), (3), (4), (5), (6), (7), (8), (9), (10), (11) (other than payments with respect to Equity Interests of the Company or any of its Restricted Subsidiaries), (12) and (iii13) of the next succeeding paragraphSection 4.07(b)), is less than the sum of sum, without duplication, of: (iA) 50% of the aggregate Consolidated Net Income of the Company (or, in the event such Consolidated Net Income shall be a deficit, minus 100% of such deficit) accrued for the period (beginning on the Issue Date and ending on the last day of the Company's most recent fiscal quarter for which financial information is available to the Company ending prior to the date of such proposed Restricted Payment, taken as one accounting period) from the beginning of the first fiscal quarter commencing after the date of the Indenture to the end of the Company's most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment , plus (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit), plus (iiB) 100% of the aggregate net cash proceeds received by the Company since the Issue Date (x) from the issue or sale since the date of the Indenture of Equity Interests of the Company or MSC (other than Disqualified Stock) or of Disqualified Stock or debt or other securities of the Company or MSC that have been converted into or exchanged for such Equity Interests (other than (i) Equity Interests (or Disqualified Stock or convertible or exchangeable debt or other securities) sold to a Subsidiary of the Company or any employee stock ownership plan or other trust established by the Company or any of its Subsidiaries for the benefit of its employees to the extent that the purchase by such plan or trust is financed by Indebtedness of such plan or trust owed to the Company or any of its Subsidiaries or Indebtedness Guaranteed by the Company or any of its Subsidiaries, and other than (ii) Disqualified Stock or convertible or exchangeable debt or other securities that have been converted into or exchanged for Disqualified Stock), plus and (iiiy) as capital contributions from its shareholders, plus (C) to the extent that any Restricted Investment that was made after the date of the Indenture is sold for cash or otherwise liquidated or repaid for cash, the lesser of (A) the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any) and (B) the initial amount of such Restricted Investment plus (iv) if any Unrestricted Subsidiary (A) is redesignated as a Restricted SubsidiarySubsidiary after the Issue Date, the fair market value of such redesignated Subsidiary (Subsidiary, as determined in good faith by the Board of Directors) , as of the date of such redesignation, plus (D) the sum of (i) the aggregate amount in cash returned to the Company or any of its redesignation Restricted Subsidiaries and (ii) the aggregate principal amount of Indebtedness of the Company or any of its Restricted Subsidiaries cancelled, in each case with respect to Restricted Investments made after the Issue Date whether through interest payments, principal payments, dividends, or other distributions or the forgiveness or cancellation of Indebtedness, plus (BE) pays the net cash proceeds received by the Company or any cash dividends of its Restricted Subsidiaries from the disposition or cash distributions sale (other than to a Restricted Subsidiary), or liquidation, retirement or redemption of all or any portion of Restricted Investments made after the Issue Date, plus (F) the net reduction in Investments in Unrestricted Subsidiaries resulting from payments of dividends, repayments of the principal of loans or advances or other transfers of assets from Unrestricted Subsidiaries to the Company or any of its Restricted Subsidiaries, 50% plus (G) in the event that the Company or any of its Restricted Subsidiaries makes any Investment in a Person that, as a result of or in connection with such cash dividends or cash distributions made after the date Restricted Investment, becomes a Restricted Subsidiary, an amount equal to such portion of the Indenture. Company's or any of its Restricted Subsidiaries' existing Investments in such Person that was previously treated as a Restricted Payment. (b) The foregoing provisions shall of Section 4.07(a) will not prohibit prohibit: (i1) the payment of any dividend within 60 days after the date of declaration thereofof the dividend, if at said the date of declaration such the dividend payment would have complied with the provisions of the this Indenture; provided, however, that any such dividend will be included in the calculation of the amount of Restricted Payments (iiwithout duplication for declaration); (2) the making of any Restricted Investment or the payment on or with respect to or, the redemption, repurchase, retirement, defeasance or other acquisition of any PARI PASSU or subordinated Indebtedness of the Company or any of its Restricted Subsidiaries or of any Equity Interests of the Company or MSC in exchange for, or out of the net cash proceeds of the substantially concurrent sale or issuance of, Equity Interests of the Company (other than (i) Disqualified Stock and (ii) Equity Interests issued or sold to a Restricted Subsidiary of the Company) of, Company or to any employee stock ownership plan or other Equity Interests of trust established by the Company or MSC (other than any Disqualified Stock)of its Subsidiaries for the benefit of its employees to the extent that the purchase by such plan or trust is financed by Indebtedness of such plan or trust owed to the Company or any of its Subsidiaries or Indebtedness Guaranteed by the Company or any of its Subsidiaries) or out of the net cash proceeds of substantially concurrent capital contributions made to the Company; provided that the amount of any such net cash proceeds that are utilized for any such Restricted Investment redemption, repurchase, retirement, defeasance or other acquisition shall will be excluded from clause (c) (ii7)(B) of the preceding paragraph; Section 4.07(a); (iii3) the defeasancedefeasance (whether legally or as to covenants only), redemption, repurchase or other acquisition of PARI PASSU or subordinated Indebtedness of the Company or any of its Restricted Subsidiaries or Disqualified Stock of the Company with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness; ; (iv4) the declaration and payment of any dividend by a Restricted Subsidiary of the Company to the holders of its such Restricted Subsidiary's Equity Interests on a pro rata basis; (5) the retirement of any shares of Disqualified Stock of the Company by conversion into, or by exchange for, shares of Disqualified Stock of the Company, or out of the net cash proceeds of the substantially concurrent sale (other than to a Restricted Subsidiary of the Company) of other shares of Disqualified Stock of the Company; provided that the Disqualified Stock of the Company that replaces the retired shares of Disqualified Stock of the Company shall not require the direct or indirect payment of any liquidation preference earlier in time than the final stated maturity of the retired shares of Disqualified Stock of the Company; (v6) any repurchase payments required to be made or otherwise contemplated pursuant to the Plan of Reorganization; (7) payments required to be made pursuant to the CPIH Reimbursement Agreement, the Corporate Services Reimbursement Agreement or the Tax Sharing Agreement; (8) payments in respect of the limited partnership interests in Covanta Onondaga Limited Partnership and Covanta Huntington Limited Partnership pursuant to the limited partnership agreements of such entities as in effect on the Issue Date and as amended, modified or extended on terms not materially less favorable to the Company and its Restricted Subsidiaries, taken as a whole; (9) repurchases of Equity Interests deemed to occur upon the exercise of stock options if such Equity Interests represent a portion of the exercise price thereof; (10) payments in satisfaction of earn-out and deferred purchase price obligations pursuant to agreements relating to the acquisition of any Person which, following such acquisition, would be a Restricted Subsidiary of the Company; (11) any Restricted Payments made pursuant to any employee benefit plan, arrangement or perquisite (including plans, arrangements or perquisites for the benefit of directors) or employment agreements or other compensation arrangements, in each case as approved by the Board of Directors in its good faith judgment; (12) the distribution, as a dividend or otherwise, of Equity Interests of, or Indebtedness owed to the Company or a Restricted Subsidiary of the Company or MSC from present and former employees and directors by, any Unrestricted Subsidiary of the Company; (13) payments or distributions to dissenting stockholders pursuant to applicable law or pursuant to or in connection with a consolidation, merger or transfer of assets that complies with Section 5.01; (14) any purchase, redemption, retirement or other acquisition for value of any subordinated Indebtedness pursuant to the provisions of such Indebtedness relating to a change of control or sale of assets; provided that the Company shall have complied with any requirement to make a Change of Control Offer or its Subsidiaries Asset Sale Offer, as the case may be, in connection with such change of control or MSC in an aggregate amount not to exceed $5 millionsale of assets; and (vi) Permitted Investments; or (vii15) other Restricted Payments in an aggregate amount not to exceed $5 10.0 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 cashc) 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 covenant. 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 (as determined in good faith by the Board of Directors). 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 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) assets or securities proposed to be transferred or issued by the Company or such any 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 determined, in good faith faith, by the Board of Directors whose resolution with respect thereto shall be delivered to the Trustee, such Directors. The Board of Directors' determination to must be based upon an opinion or appraisal issued by an accounting, appraisal or investment banking firm of national standing if such the fair market value exceeds $10.0 million15.0 million and if the Restricted Payment is to be made to an Affiliate of the Company or to the holders of or in respect of any Equity Interest. Not later than the date of making any Restricted PaymentPayment having a fair market value exceeding $15.0 million, the Company shall deliver to the Trustee an Officers' Officer's Certificate stating that such Restricted Payment is permitted and setting forth the basis upon which the calculations required by this covenant Section 4.07(c) were computed, together with a copy of any the fairness opinion or appraisal required by this Indenture. In determining whether any Restricted Payment is permitted by the Indenturecovenant described above, the Company may in its sole discretion allocate all or any portion of such Restricted Payment among the categories described in the immediately preceding paragraph or among such categories and the types of Restricted Payments described in the first paragraph under the "Restricted Payments" heading above; provided that at the time of such allocation, all such Restricted Payments, or allocated portions thereof, would be permitted under the various provisions of the covenant described above.

Restricted Payments. From and after the date hereof the The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly: (i) declare or pay any dividend or make any other payment or distribution on account of the Company's or any of its Restricted Subsidiaries' Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company or any of its Restricted Subsidiaries) or to the direct or indirect holders of the Company's or any of its Restricted Subsidiaries' Equity Interests in their capacity as such (other than dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company or to the Company or a Restricted Subsidiary of the Company); (ii) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or any direct or indirect parent of the Company (other than any such Equity Interests owned by 45 the Company or any Wholly Owned Restricted Subsidiary of the Company); (iii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness that is PARI PASSU with or subordinated to the Notes (other than the Notes and the 2003 Notes), except a payment of interest or principal at Stated Maturity; or (iv) make any Restricted Investment (all such payments and other actions set forth in clauses (i) through (iv) above being collectively referred to as "RESTRICTED PAYMENTSRestricted Payments"), unless, : (a) at the time of and after giving effect to such Restricted Payment: (a) , no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof; and; (b) the Company would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Cash Flow Coverage Ratio test set forth in either clause (i) or (ii) of the first paragraph of Section 4.09 hereof; and (c) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after the date of the Indenture hereof (excluding Restricted Payments permitted by clauses (ii), (iii), (iv), (vi), (vii), (viii), (ix) (but only to the extent that such Restricted Payments are reflected as an expense on the income statement of GCL or New GCL, as applicable) and (iiix) of the next succeeding paragraph), is less than the sum sum, without duplication, of (i) 50% of the Consolidated Net Income of the Company for the period (taken as one accounting period) from beginning on the beginning last day of the first fiscal quarter commencing after immediately preceding the date hereof and ending on the last day of the Indenture to the end of the Company's most recently ended fiscal quarter for which internal financial statements are available at immediately preceding the time date of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit), plus (ii) 100% of the aggregate net cash proceeds and the fair market value (as determined in good faith by the Board of Directors) of property or assets received by the Company since the date hereof as a contribution to its common equity capital or from the issue or sale since the date of the Indenture of Equity Interests of the Company or MSC (other than Disqualified Stock) or from the issue or sale of Disqualified Stock or debt securities of the Company or MSC that have been converted into such Equity Interests (other than Equity Interests (or Disqualified Stock or convertible debt securities) sold to a Subsidiary of the Company), plus the amount of cash or the fair market value (as determined above) of property or assets received by the Company and other than Disqualified Stock or convertible debt securities that have been converted into Disqualified Stock)any Restricted Subsidiary upon such conversion or exchange, plus (iii) the aggregate amount equal to the net reduction in Investments in Unrestricted Subsidiaries resulting from (x) dividends, distributions, interest payments, return of capital, repayments of Investments or other transfers of assets to the Company or any Restricted Subsidiary from any Unrestricted Subsidiary, (y) proceeds realized by the Company or any Restricted Subsidiary upon the sale of such Investment to a Person other than GCL, New GCL, the Company or any Subsidiary of the Company, or (z) the redesignation of any Unrestricted Subsidiary as a Restricted Subsidiary, not to exceed in the case of any of the immediately preceding clauses (x), (y) or (z) the aggregate amount of Restricted Investments made by the Company or any Restricted Subsidiary in such Unrestricted Subsidiary after the date hereof, plus (iv) to the extent that any Restricted Investment that was made after the date of the Indenture hereof is sold for cash or otherwise liquidated or repaid for cash, the lesser of (A) the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any) and (B) the initial amount of such Restricted Investment plus Investment; provided, however, that amounts determined pursuant to subclauses (x) and (y) of clause (iii) or clause (iv) if any Unrestricted Subsidiary shall exclude amounts arising from the reallocation of an Investment made in accordance with the provisions described below in clause (Avi) is redesignated as a Restricted Subsidiary, the fair market value of such redesignated Subsidiary (as determined in good faith by the Board of Directors) as of the date of its redesignation or (B) pays any cash dividends or cash distributions to the Company or any of its Restricted Subsidiaries, 50% of any such cash dividends or cash distributions made after the date of the Indentureimmediate following paragraph. The foregoing provisions shall 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 the Indentureforegoing provisions; (ii) the redemption, repurchase, retirement, defeasance or other acquisition of any PARI PASSU or subordinated Indebtedness or Equity Interests of the Company or MSC in exchange for, or out of the net cash proceeds of the substantially concurrent sale or issuance (other than to a Restricted Subsidiary of the Company) of, other Equity Interests of the Company or MSC (other than any Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such redemption, repurchase, retirement, defeasance or other acquisition shall be excluded from clause (c) (iic)(ii) of the preceding paragraph; (iii) the defeasance, redemption, retirement, 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 Equity Interests on a pro rata basis; (v) the repurchase, redemption or other acquisition or retirement for value of any repurchase of Equity Interests of the Company or MSC from present and former employees and directors any of its Restricted Subsidiaries held by any member of the Company Company's or its such Restricted Subsidiary's management; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall not exceed $5.0 million in any twelve-month period (with unused amounts being carried over to succeeding twelve-month periods, subject to a maximum of $10.0 million in any twelve-month period); (vi) Investments in Project Subsidiaries or MSC made with a portion of the net proceeds of the Offering in an aggregate amount not to exceed $5 millionthe amount identified in the Offering Memorandum under the caption "Use of Proceeds" as `Investments in Cable Systems Under Development' made within one year of the date hereof, or a reallocation of any such Investments to the extent of any reduction of such Investment during such one-year period resulting from an investment by any third party (including, without limitation, pursuant to a Joint Venture) in the formation of such Project Subsidiary, provided that such reallocation is made within one year from the date of such third party Investment; (vivii) Permitted InvestmentsInvestments in Project Subsidiaries made with the net cash proceeds received from an Equity Offering made by the Company, GCL or New GCL (but only to the extent such net cash proceeds received by GCL or New GCL were contributed to the Company as common equity capital); provided that the amount of any such net cash proceeds that are utilized for any such Investment shall be excluded from clause (c)(ii) of the preceding paragraph; (viii) Investments in GTH of amounts necessary to effect the redemption of the outstanding GTH Preference Shares in accordance with the terms thereof; (ix) the payment of any dividend or the making of any distribution to GCL or New GCL by the Company or any Restricted Subsidiary to pay or permit GCL or New GCL to pay any GCL Expenses or any Related Taxes; (viix) any payments made pursuant to an incurrence of Indebtedness pursuant to clause (i) of Section 4.09 hereof; and (xi) other Restricted Payments in an aggregate amount not to exceed $5 million5.0 million prior to an Initial Public Offering or $10.0 million subsequent to an Initial Public Offering. The Board of Directors may not designate any Restricted Subsidiary of the Company (other than a newly created Subsidiary in which no Investment has previously been made (other than the amount required to be capitalize such Subsidiary in connection with its organization)) as an Unrestricted Subsidiary if (a "Designation") unless: (i) no Default or Event of Default shall have occurred and be continuing at the time of or after giving effect to such designation Designation; (ii) the Company would, immediately after giving effect to such Designation, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to either clause (i) or (ii) of the first paragraph of Section 4.09 hereof and (iii) the Company would not cause a Default. For be prohibited under this Indenture from making an Investment at the time of such Designation (assuming the effectiveness of such Designation for purposes of making clauses (a) and (b) of the first paragraph of this Section 4.07) in an amount equal to the fair market value of the net Investment of the Company or any other Restricted Subsidiary in such determinationSubsidiary on such date; provided, however, that in no event will Atlantic Crossing be transferred to or held by an Unrestricted Subsidiary. In the event of any such Designation, all outstanding Investments owned 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 an Investment made as of the time of such designation Designation and will reduce the amount available for Restricted Payments under the first paragraph of this covenantcovenant or Permitted Investments, as applicable. All such outstanding Investments will be deemed to constitute Investments Restricted Payments in an amount equal to the fair market value of such Investments at the time of such designation Designation. A Designation may be revoked (as determined in good faith by the Board of Directors). 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 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 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, such determination to be based upon an opinion or appraisal issued by an accounting, appraisal or investment banking firm of national standing if such fair market value exceeds $10.0 million. Not later than 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 covenant were computed, together with a copy of any fairness opinion or appraisal required by the Indenture."

Restricted Payments. From and after the date hereof the (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly: : (i1) declare or pay any dividend or make any other payment or distribution on account of the Company's 's, or any of its Restricted Subsidiaries' Subsidiary's, Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company or any Restricted Subsidiary) or to the direct or indirect holders of the Company's or any of its Restricted Subsidiaries' Subsidiary's Equity Interests in their capacity as such (other than dividends or distributions (i) payable in Equity Interests (other than Disqualified Stock) of the Company or (ii) payable to the Company and/or a Restricted Subsidiary of the Company); ; (ii2) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or any direct or indirect parent of the Company; ; (iii3) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness that is PARI PASSU with or expressly subordinated to the Notes (other than or the Notes and the 2003 Notes)Note Guarantees, except a payment of interest or principal at the Stated MaturityMaturity thereof or a payment of principal or interest on Indebtedness owed to the Company or any of its Restricted Subsidiaries; or or (iv4) make any Restricted Investment (all such payments and other actions set forth in these clauses (i1) through (iv4) above being collectively referred to as "RESTRICTED PAYMENTSRestricted Payments"), unless, at the time of and after giving effect to such Restricted Payment: (a1) no Default or Event of Default shall have has occurred and be is continuing or would occur as a consequence thereofof such Restricted Payment; and (b2) the Company would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Cash Flow Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 4.09 hereof; and (c3) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after the date of the Indenture May 3, 2002 (excluding Restricted Payments permitted by clauses (ii) 2), (3), (4), (5), (7), (8) and (iii9) of the next succeeding paragraph), is less than the sum of sum, without duplication, of: (ia) 50% of the Consolidated Net Income After Preferred Cash Dividend of the Company Company, for the period (taken as one accounting period) from the beginning of the first fiscal quarter commencing after the date of the Indenture May 3, 2002 to the end of the Company's most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit), plus plus (iib) 100% of the aggregate net cash proceeds received by the Company since May 3, 2002 as a contribution to its common equity capital or from the issue or sale since the date of the Indenture of Equity Interests of the Company or MSC (other than Disqualified Stock) or from the issue or sale of convertible or exchangeable Disqualified Stock or convertible or exchangeable debt securities of the Company or MSC that have been converted into or exchanged for such Equity Interests (other than Equity Interests (or Disqualified Stock or convertible debt securities) sold to a Subsidiary of the Company and other than Disqualified Stock or convertible debt securities that have been converted into Disqualified StockCompany), plus plus (iiic) to the extent that any Restricted Investment (other than a Restricted Investment permitted by clause (5) of the next succeeding paragraph) that was made after the date of the Indenture May 3, 2002 is sold for cash or otherwise liquidated or repaid for cash, the lesser of (Ai) the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any) and (Bii) the initial amount of such Restricted Investment plus Investment, plus (ivd) if to the extent that any Unrestricted Subsidiary (A) of the Company is redesignated as a Restricted SubsidiarySubsidiary after May 3, 2002, the lesser of (i) the fair market value of the Company's Investment in such redesignated Subsidiary (as determined in good faith by the Board of Directors) as of the date of its such redesignation or (Bii) pays any cash dividends or cash distributions to the Company or any such fair market value as of its Restricted Subsidiaries, 50% of any such cash dividends or cash distributions made after the date of on which such Subsidiary was originally designated as an Unrestricted Subsidiary, plus (e) $10.0 million. So long as no Default has occurred and is continuing or would be caused thereby, the Indenture. The foregoing preceding provisions shall not prohibit prohibit: (i1) the payment of any dividend within 60 days after the date of declaration thereofof the dividend, if at said the date of declaration such the dividend payment would have complied with the provisions of the this Indenture; ; (ii2) the redemption, repurchase, retirement, defeasance or other acquisition of any PARI PASSU or subordinated Indebtedness of the Company or any Guarantor or of any Equity Interests of the Company or MSC in exchange for, or out of the net cash proceeds of the substantially concurrent sale or issuance (other than to a Restricted Subsidiary of the Company) of, other Equity Interests of the Company or MSC (other than any Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such redemption, repurchase, retirement, defeasance or other acquisition shall be excluded from clause (c) (ii3)(b) of the preceding paragraph; ; (iii3) the defeasance, redemption, repurchase or other acquisition of PARI PASSU or subordinated Indebtedness of the Company or any Guarantor with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness; ; (iv4) the payment of any dividend by a Restricted Subsidiary of the Company to the holders of its Equity Interests on a pro rata basis; (5) (a) the purchase, redemption or other acquisition, cancellation or retirement for value of Capital Stock, or options, warrants, equity appreciation rights or other rights to purchase or acquire Capital Stock of the Company or any Restricted Subsidiary of the Company or any parent of the Company held by any existing or former employees of the Company or any Subsidiary of the Company or their assigns, estates or heirs, in each case in connection with the repurchase provisions under employee stock option or stock purchase agreements or other agreements to compensate management employees; provided that such redemptions or repurchases pursuant to this clause will not exceed $2.5 million in the aggregate during any calendar year and $10.0 million in the aggregate for all such redemptions and repurchases; provided further, that the Company may carry-forward and make in a subsequent calendar year, in addition to the amounts permitted for such calendar year, the amount of such redemptions or repurchases permitted to have been made but not made in any preceding calendar year; provided further that such amount in any calendar year may be increased by an amount not to exceed (vi) the cash proceeds from the sale of Capital Stock of the Company to existing or former employees of the Company or any repurchase Subsidiary of the Company after the date the Notes are originally issued (to the extent the cash proceeds from the sale of such Capital Stock have not otherwise been applied to the payment of Restricted Payments by virtue of clause (3)(b) of the preceding paragraph) plus (ii) the cash proceeds of key man life insurance policies received by the Company and its Subsidiaries after the date the Notes are originally issued less (iii) the amount of any Restricted Payments previously made pursuant to clause (i) and (ii) of this clause (5)(a); and (b) loans or advances to employees or directors of the Company or any Subsidiary of the Company the proceeds of which are used to purchase Capital Stock of the Company, in an aggregate amount not in excess of $10.0 million at any one time outstanding; (6) the declaration and payment by the Company of a dividend consisting of Qualified Trust Preferred Stock with a fair market value that is not greater than is necessary in order to preserve the Company's eligibility to elect Real Estate Investment Trust status with respect to its 1999 taxable year; (7) the repurchase, redemption or other acquisition or retirement for value of up to $130.0 million in liquidation preference of the Series B Preferred Stock if the Company would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, 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 of Section 4.09 hereof; (8) repurchases of Equity Interests of the Company or MSC from present and former employees and directors deemed to occur upon the exercise of stock options if such Equity Interests represent a portion of the exercise price thereof; (9) the declaration and payment of dividends on the Company's Series A Preferred Stock and Series B Preferred Stock in accordance with terms of the Series A Preferred Stock and Series B Preferred Stock as in effect on the Issue Date; (10) the payment of the liquidation preference of and all accrued and unpaid interest on 100% of issued and outstanding shares of the Company's Series A Preferred Stock in accordance with the terms of the Series A Preferred Stock as in effect on the Issue Date and the notice of redemption to be given by CCA on the Issue Date; (11) the redemption pursuant to their terms of all MDP Notes or PMI Notes that remain outstanding on the applicable redemption date after the Company sends notice of such redemption to the holders of such notes, provided that (i) the Company converts all MDP Notes and PMI Notes pursuant to their terms upon the proper request of a holder of such notes and (ii) the fair market value of the common stock received upon such conversion (measured as of the date the notice of redemption is given) is not less than one and one half times the proceeds such holder would receive pursuant to such redemption; (12) the repurchase, redemption or its Subsidiaries other acquisition or MSC retirement for value of the shares of Series A Preferred Stock issued and outstanding on the Issue Date with the net proceeds from the issuance by a Qualified Trust of Qualified Trust Preferred Stock; and (13) Restricted Payments not otherwise permitted in an aggregate amount not to exceed $5 25.0 million; (vi) Permitted Investments; or (vii) other Restricted Payments in an aggregate amount not to exceed $5 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 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 covenant. 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 (as determined in good faith by the Board of Directors). 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 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 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 Section 4.07 shall be determined in good faith by the Board of Directors whose resolution with respect thereto shall be delivered to the Trustee, such . The Board of Directors' determination to must be based upon an opinion or appraisal issued by an accounting, appraisal or investment banking firm of national standing if such the fair market value exceeds $10.0 15.0 million. Not Except with respect to any Restricted Payment permitted pursuant to clauses (1)-(13) of the immediately preceding paragraph, not later than 10 days following the date end of making any the fiscal quarter in which such Restricted PaymentPayment was made, 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 covenant Section 4.07 were computed, together with a copy of any fairness opinion or appraisal required by the this Indenture.

Restricted Payments. From and after the date hereof the (a) The Company shall will not, and shall will not permit any of its Subsidiaries toRestricted Subsidiaries, directly or indirectly: , to: (i1) declare or pay any dividend or make any other payment or distribution on account of the Company's or any of its Restricted Subsidiaries' Equity Interests (including, without limitation, any payment on account of such Equity Interests in connection with any merger or consolidation involving the Company) or to the direct or indirect holders of the Company's or any of its Restricted Subsidiaries' Equity Interests in their capacity as such (other than dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company); ; (ii2) purchase, retract, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company), in whole or in part, any Equity Interests of the Company (other than any such Equity Interests owned by the Company or any direct or indirect parent of the Company; a Restricted Subsidiary); (iii3) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value value, any Indebtedness that is PARI PASSU with or subordinated to the Notes (other than the Notes and the 2003 Notes), any Mirror Note, any Mirror Note Guarantee or any Subsidiary Guarantee, except for (i) a payment of interest at the Stated Maturity thereof or of principal at not earlier than one year prior to the Stated MaturityMaturity thereof and (ii) any such Indebtedness owed to the Company or a Restricted Subsidiary; or or (iv4) make any Restricted Investment (all such payments and other actions set forth in clauses (i1) through (iv4) above being collectively referred to as "RESTRICTED PAYMENTS"), unless, at the time of and after giving effect to such Restricted Payment: (a1) no Default or Event of Default shall have has occurred and be is continuing or would occur as a consequence thereof; andof such Restricted Payment; (b2) the Company would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 U.S.$1.00 of additional Indebtedness pursuant to the Cash Flow Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 4.09 hereof4.09(a); and (c3) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after the date of the Indenture Issue Date (excluding Restricted Payments permitted by clauses (ii2), (3) and (iii) 8) of the next succeeding paragraphSection 4.07(b)), is less than the sum of sum, without duplication, of: (ia) 50% of the Consolidated Net Income of the Company for the period (taken as one accounting period) from the beginning of the first fiscal quarter commencing after the date of the which this Indenture is dated to the end of the Company's most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficitloss, less 100% of such deficitloss), plus PLUS (iib) 100% of the aggregate net cash proceeds received by the Company since the Issue Date as a contribution to its common equity capital or from the issue or sale since the date of the Indenture of Equity Interests of the Company or MSC (other than Disqualified StockStock and other than sales of Equity Interests to a Restricted Subsidiary) or from the issue or sale of convertible or exchangeable Disqualified Stock or convertible or exchangeable debt securities of the Company or MSC that have been converted into or exchanged for such Equity Interests (other than Equity Interests (or Disqualified Stock or convertible debt securities) sold to a Subsidiary of the Company) plus the aggregate net cash proceeds received by the Company and other than Disqualified Stock at the time of such conversion or convertible debt securities that have been converted into Disqualified Stock)exchange, plus PLUS (iiic) to the extent that any Restricted Investment that was made after the date of the Indenture Issue Date is sold for cash or otherwise liquidated or repaid for cash, the lesser of (Ai) the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any) and (Bii) the initial amount of such Restricted Investment plus Investment, PLUS (ivd) if any upon a redesignation of an Unrestricted Subsidiary (A) is redesignated as a Restricted Subsidiary, the fair market value lesser of such redesignated Subsidiary (as determined in good faith by the Board of Directors) as of the date of its redesignation or (B) pays any cash dividends or cash distributions to the Company or any of its Restricted Subsidiaries, 50% of any such cash dividends or cash distributions made after the date of the Indenture. The foregoing provisions 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 Fair Market Value of the Indenture; Company's proportionate interest in such Subsidiary immediately following such redesignation, and (ii) the redemption, repurchase, retirement, defeasance or other acquisition of any PARI PASSU or subordinated Indebtedness or Equity Interests of the Company or MSC in exchange for, or out of the net cash proceeds of the substantially concurrent sale or issuance (other than to a Restricted Subsidiary aggregate amount of the Company) of, other Equity Interests of 's Investments in such Subsidiary to the Company or MSC (other than any Disqualified Stock); provided that the amount of any extent such net cash proceeds that are utilized for any such redemption, repurchase, retirement, defeasance or other acquisition shall be Investments were excluded from clause or otherwise reduced the sum of clauses (a), (b) and (c) (ii) of the preceding paragraph; (iii) the defeasance, redemption, repurchase immediately above and were not previously repaid 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 Equity Interests on a pro rata basis; (v) any repurchase of Equity Interests of the Company or MSC from present and former employees and directors of the Company or its Subsidiaries or MSC in an aggregate amount not to exceed $5 million; (vi) Permitted Investments; or (vii) other Restricted Payments in an aggregate amount not to exceed $5 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 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 covenant. 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 (as determined in good faith by the Board of Directors). 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 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 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, such determination to be based upon an opinion or appraisal issued by an accounting, appraisal or investment banking firm of national standing if such fair market value exceeds $10.0 million. Not later than 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 covenant were computed, together with a copy of any fairness opinion or appraisal required by the Indenturereduced.

Restricted Payments. From and after the date hereof the The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly: (i) declare or pay any dividend or make any other payment or distribution on account of the Company's or any of its Restricted Subsidiaries' Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company or any of its Restricted Subsidiaries) or to the direct or indirect holders of the Company's or any of its Restricted Subsidiaries' Equity Interests in their capacity as such (other than dividends or distributions payable in Equity Interests (other than Disqualified StockInterests) of the Company or to the Company or a Restricted Subsidiary of the Company); (ii) purchase, redeem or otherwise acquire or retire for value (including without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or any direct or indirect parent of the Company (other than any such Equity Interests owned by the Company or any Wholly-Owned Restricted Subsidiary of the Company); (iii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness that is PARI PASSU with or subordinated to the Notes (other than the Notes and the 2003 Notes), except a payment of interest or principal at Stated Maturity; or (iv) make any Restricted Investment (all such payments and other actions set forth in clauses (i) through (iv) above being collectively referred to as "RESTRICTED PAYMENTS"), unless, at the time of and after giving effect to such Restricted Payment: (a) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof; and (b) the Company would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Cash Flow Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 4.09 hereofof this Indenture; and (c) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after the date of the this Indenture (excluding Restricted Payments permitted by clauses (ii), (iii), (iv), (vi), (vii) and (iiiviii) of the next second succeeding paragraph), is less than the sum sum, without duplication, of (i) 50% of the Consolidated Net Income of the Company for the period (taken as one accounting period) from the beginning of the first fiscal quarter commencing after the date of this Indenture (the Indenture "MEASUREMENT DATE") to the end of the Company's most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit), plus (ii) 100% of the aggregate net cash proceeds received by the Company since the Measurement Date as a contribution to its common equity capital or from the issue or sale since the date of the Indenture of Equity Interests of the Company or MSC (other than Disqualified StockInterests) or from the issue or sale of Disqualified Stock Interests or debt securities of the Company or MSC that have been converted into such Equity Interests (other than Equity Interests (or Disqualified Stock or convertible debt securities) securities sold to a Subsidiary of the Company and other than Disqualified Stock or convertible debt securities that have been converted into Disqualified StockCompany), plus (iii) to the extent that any Restricted Investment that was made after the date of the this Indenture is sold for cash or otherwise liquidated or repaid for cash, the lesser of (A) the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any) and (B) the initial aggregate amount of such Restricted Investment plus (iv) if any Unrestricted Subsidiary (A) is redesignated that was treated as a Restricted Subsidiary, the fair market value of such redesignated Subsidiary (as determined in good faith by the Board of Directors) as of the date of its redesignation or (B) pays any cash dividends or cash distributions to the Company or any of its Restricted Subsidiaries, 50% of any such cash dividends or cash distributions made after the date of the Indenture. The foregoing provisions 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 the Indenture; (ii) the redemption, repurchase, retirement, defeasance or other acquisition of any PARI PASSU or subordinated Indebtedness or Equity Interests of the Company or MSC in exchange for, or out of the net cash proceeds of the substantially concurrent sale or issuance (other than to a Restricted Subsidiary of the Company) of, other Equity Interests of the Company or MSC (other than any Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such redemption, repurchase, retirement, defeasance or other acquisition shall be excluded from clause (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 Equity Interests on a pro rata basis; (v) any repurchase of Equity Interests of the Company or MSC from present and former employees and directors of the Company or its Subsidiaries or MSC in an aggregate amount not to exceed $5 million; (vi) Permitted Investments; or (vii) other Restricted Payments in an aggregate amount not to exceed $5 millionPayment when made. 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 at the time of such designation and will reduce the amount available for Restricted Payments under the first paragraph of this covenantSection 4.07. 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 (as determined in good faith by the Board of Directors)designation. Such designation shall will only be permitted if such Restricted Payment would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. The foregoing provisions 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 subordinated Indebtedness or Equity Interests of the Company in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Subsidiary of the Company) of, other Equity Interests of the Company (other than any Disqualified Interests); 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 Subsidiary of the Company to the holders of its common Equity Interests on a pro rata basis; (v) the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Subsidiary of the Company held by any member of the Company's (or any of its Subsidiaries') management; PROVIDED that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall not exceed $1,000,000 in any twelve-month period and no Default or Event of Default shall have occurred and be continuing immediately after such transaction; (vi) the declaration of the Xxxx Xxxxx Vehicle as an Unrestricted Subsidiary on the date that it becomes a Subsidiary of the Company; PROVIDED that it otherwise meets the qualifications of an Unrestricted Subsidiary; (vii) distributions to partners or owners of the Company in an aggregate amount during or with respect to any fiscal period commencing after December 31, 1996, not to exceed the Tax Amount for such period or for such prior periods commencing after December 31, 1996 that are subject to adjustments as a result of audits by tax authorities; (viii) transfers of cash proceeds from the sale of the Notes not to exceed, in the aggregate, $85.0 million, to finance the purchase of the Company's limited partnership interests from the public holders of such units, as set forth in the Offering Memorandum under the caption "Use of Proceeds" and (ix) additional Restricted Payments not to exceed $5.0 million after the date of this Indenture. 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 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, such determination to be based upon an opinion or appraisal issued by an accounting, appraisal or investment banking firm of national standing if such fair market value exceeds $10.0 1.0 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 covenant Section 4.07 were computed, together with a copy of any fairness opinion or appraisal required by the this Indenture.

Restricted Payments. From and after the date hereof the The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly: (i) declare or pay any dividend or make any other payment or distribution on account of the Company's or any of its Restricted Subsidiaries' Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company or any of its Restricted Subsidiaries) or to the direct or indirect holders of the Company's or any of its Restricted Subsidiaries' Equity Interests in their capacity as such (other than dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company or to the Company or a Restricted Subsidiary of the Company); (ii) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or any direct or indirect parent of the CompanyCompany or other Affiliate of the Company (other than any such Equity Interests owned by the Company or any Restricted Subsidiary); (iii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness that is PARI PASSU with or subordinated to the Notes (other than the Notes and the 2003 Notes)or any guarantee thereof, except a payment of interest or principal at Stated Maturity; or (iv) make any Restricted Investment (all such payments and other actions set forth in clauses (i) through (iv) above being collectively referred to as "RESTRICTED PAYMENTSRestricted Payments"), unless, at the time of and after giving effect to such Restricted Payment: (a) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof; and (b) the Company would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Cash Flow Fixed Charge Coverage Ratio test set forth in the first paragraph of the covenant described below under Section 4.09 4.9 hereof; and (c) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after the date of the this Indenture (excluding Restricted Payments permitted by clauses (ii), (iii), (iv), (vi), (vii), (viii) and (iiiix) of the next succeeding paragraph), is less than the sum sum, without duplication, of (i) 50% of the Consolidated Net Income of the Company and its Restricted Subsidiaries for the period (taken as one accounting period) from the beginning of the first fiscal quarter commencing after the date of the this Indenture to the end of the Company's most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit), plus (ii) 100% of the aggregate net proceeds (including the fair market value of property other than cash proceeds (determined in good faith by the Board of Managers as evidenced by a certificate filed with the Trustee, except that in the event the value of any non-cash consideration shall be $15.0 million or more, the value shall be as determined based upon an opinion or appraisal issued by an Independent Financial Advisor)) received by the Company since the date of this Indenture as a contribution to its common equity capital or from the issue or sale since the date of the Indenture of Equity Interests of the Company or MSC (other than Disqualified Stock) of the Company (excluding any net proceeds from an Equity Offering or capital contribution to the extent used to redeem Notes in accordance with the optional redemption provisions of the Notes) or from the issue or sale of Disqualified Stock or debt securities of the Company or MSC that have been converted into such Equity Interests (other than Equity Interests (or Disqualified Stock or convertible debt securities) sold to a Subsidiary of the Company and other than Disqualified Stock or convertible debt securities that have been converted into Disqualified StockCompany), plus (iii) to the extent that any Restricted Investment that was made after the date of the this Indenture is sold for cash or otherwise liquidated or repaid for cash, the lesser of (A) the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any) and (B) the initial amount of such Restricted Investment ), plus (iv) if any Unrestricted Subsidiary dividends (A) is redesignated as a Restricted Subsidiary, the fair market value of such redesignated Subsidiary (as property other than cash shall be determined in good faith by the Board of DirectorsManagers as evidenced by a certificate filed with the Trustee, except that in the event the value of any non-cash consideration shall be $15.0 million or more, the value shall be as determined based upon an opinion or appraisal issued by an Independent Financial Advisor) received by the Company or a Restricted Subsidiary after the date of this Indenture from an Unrestricted Subsidiary of the Company, to the extent that such dividends were not otherwise included in Consolidated Net Income of the Company for such period, plus (v) to the extent that any Unrestricted Subsidiary is redesignated as a Restricted Subsidiary after the date of this Indenture, if as a result of such redesignation, (x) the Fixed Charge Coverage Ratio of the Company on a pro forma basis is lower than such ratio immediately prior thereto, then the lesser of (A) the fair market value of the Company's Investment in such Subsidiary as of the date of its such redesignation or (B) pays such fair market value as of the date on which such Subsidiary was originally designated as an Unrestricted Subsidiary or (y) the Fixed Charge Coverage Ratio of the Company on a pro forma basis is equal to or higher than such ratio immediately prior thereto, the fair market value of the Company's Investment in such Subsidiary as of the date of such redesignation; provided, further that any cash dividends increase in the amount of Restricted Payments permitted to be incurred as a result of application of subparagraphs (iii), (iv) or cash distributions (v) above related to dividends, returns of capital or redesignation of foreign joint ventures shall be reduced by the difference between (A) the fair market value of any equipment (as determined by sales by the Company of comparable equipment to unaffiliated third parties) transferred to such joint ventures in reliance on subparagraph (xii) of the covenant entitled "Transactions with Affiliates" and (B) the value received by the Company or any of its Restricted Subsidiaries, 50% of any Subsidiary from such cash dividends or cash distributions made after the date of the Indenturejoint venture with respect to such equipment transfer. The foregoing provisions 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 the this Indenture; (ii) the redemption, repurchase, retirement, defeasance or other acquisition of any PARI PASSU or subordinated Indebtedness or Equity Interests of the Company or MSC subordinated Indebtedness of the Company or any Guarantors in exchange for, or out of the net cash proceeds of the substantially concurrent sale or issuance (other than to a Restricted Subsidiary of the Company) of, other Equity Interests of the Company or MSC (other than any Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such redemption, repurchase, retirement, defeasance or other acquisition shall be excluded from clause (c) (ii) of the preceding paragraphparagraph provided that no Default or Event of Default shall have occurred and be continuing immediately after such transaction; (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 Equity Interests on a pro rata basis; (v) the repurchase, redemption or other acquisition or retirement for value of any repurchase Equity Interests of the Parent, 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 agreement, stock option agreement or similar agreement; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall not exceed $5.0 million in the aggregate since the date of this Indenture (and shall be increased by the amount of any net cash proceeds to the Company from (x) sales of Equity Interests of the Parent to management employees subsequent to the date of this Indenture and (y) any "key-man" life insurance policies which are used to make such redemptions or repurchases) and no Default or Event of Default shall have occurred and be continuing immediately after such transaction; provided further, that the cancellation of Indebtedness owing to the Company or MSC from present and former employees and directors members of management of the Company or any of its Restricted Subsidiaries in connection with such a repurchase of Capital Stock of the Parent will not be deemed to constitute a Restricted Payment under this Indenture; (vi) the making of distributions, loans or MSC advances to the Parent in an aggregate amount not to exceed $5 million1.5 million per annum in order to permit the Parent to pay required and ordinary operating expenses of the Parent (including, without limitation, directors' fees, indemnification obligations, professional fees and expenses, but excluding any payments on or repurchases of the Seller Subordinated Note or the Seller Preferred Equity); (vi) Permitted Investments; or (vii) distributions to the Parent to fund the required tax obligations of the Parent or its members related to income generated by the Company and its Restricted Subsidiaries and taxable to such members, including the tax distributions contemplated by Article IV of the LLC Agreement as in effect on the date of this Indenture; (viii) repurchases of Capital Stock deemed to occur upon the exercise of stock options if such Capital Stock represents a portion of the exercise price thereof; (ix) distributions to the Parent to fund the Transactions; (x) distributions to the Parent to purchase or redeem the Seller Subordinated Note and the Seller Preferred Equity pursuant to change of control provisions contained in the governing instrument relating thereto; provided, however, that (x) no offer or purchase obligation may be triggered in respect of such Seller Subordinated Note or Seller Preferred Equity unless a corresponding obligation also arises with respect to the Notes and (y) in any event, no repurchase or redemption of any such Seller Subordinated Note or Seller Preferred Equity may be consummated unless and until the Issuers shall have satisfied all repurchase obligations with respect to any required purchase offer made with respect to the Notes; provided, however, that such purchases or redemption of the Seller Subordinated Note or the Seller Preferred Equity shall be included in the calculation of the amount of Restricted Payments and provided that no Default or Event of Default shall have occurred and be continuing as a consequence thereof; and (xi) if no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof, other Restricted Payments in an aggregate amount not to exceed $5 5.0 million since the date of this Indenture. In addition, any dividend which is declared but not paid shall not be included in the calculation of Restricted Payments under clause (c), and any divided which is declared and paid shall be included only once in the calculation of Restricted Payments under clause (c). 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 Managers of the Company whose resolution with respect thereto shall be delivered to the Trustee, such determination to be based upon an opinion or appraisal issued by an Independent Financial Advisor if such fair market value exceeds $15.0 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 4.7 were computed, together with a copy of any fairness opinion or appraisal required by this Indenture. The Board of Directors Managers 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 at the time of such designation and will reduce the amount available for Restricted Payments under the first paragraph of this covenant. 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 (as determined in good faith by the Board of Directors)designation. Such designation shall will only be permitted if such Restricted Payment would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. The amount Any designation 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 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 an Unrestricted Subsidiary by the Board of Directors whose resolution with respect thereto Managers shall be delivered evidenced to the TrusteeTrustee by filing with the Trustee a certified copy of the resolution of the Board of Managers of the Company giving effect to such designation and an Officers' Certificate certifying that such designation complied with the terms of the Indenture governing the designation of Unrestricted Subsidiaries and was permitted by this Section 4.7. If, such determination at any time, any Unrestricted Subsidiary fails to meet the foregoing requirements as an Unrestricted Subsidiary, it shall thereafter cease to be based upon an opinion or appraisal issued Unrestricted Subsidiary for purposes of the Indenture and any Indebtedness of such Subsidiary shall be deemed to be incurred by an accountinga Restricted Subsidiary of the Company as of such date (and, appraisal or investment banking firm of national standing if such fair market value exceeds $10.0 million. Not later than Indebtedness is not permitted to be incurred as of such date under the date of making any Restricted Paymentcovenant described under Section 4.9 hereof, the Company shall deliver be in default of such covenant). The Board of Managers of the Company may at any time designate any Unrestricted Subsidiary to the Trustee an Officers' Certificate stating be a Restricted Subsidiary; provided that such designation shall be deemed to be an incurrence of Indebtedness by a Restricted Payment 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 4.9 hereof calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period, (ii) such Subsidiary shall execute a Note Guarantee and setting forth deliver an Opinion of Counsel in accordance with the basis upon which the calculations required by terms of this covenant were computed, together with a copy Indenture and (iii) no Default or Event of any fairness opinion or appraisal required by the IndentureDefault would be in existence following such designation.

Restricted Payments. From and after the date hereof the Company (a) The Issuer shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly: : (i1) declare or pay any dividend or make any other payment or distribution on account of the Company's Issuer’s or any of its Restricted Subsidiaries' ’ Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Issuer or any of its Restricted Subsidiaries) or to the direct or indirect holders of the Company's Issuer’s or any of its Restricted Subsidiaries' ’ Equity Interests in their capacity as such (other than dividends (A) dividends, distributions or distributions payments payable in Qualifying Equity Interests (other than Disqualified Stock) or, in the case of preferred stock of the CompanyIssuer, an increase in the liquidation value thereof and (B) dividends, distributions or payments payable to the Issuer or a Restricted Subsidiary of the Issuer); ; (ii2) purchase, redeem or otherwise acquire or retire for value any Equity Interests of the Company or any direct or indirect parent of the Company; Issuer; (iii3) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value (collectively for purposes of this clause (3), a “purchase”) any Indebtedness of the Issuer or the Guarantor that is PARI PASSU with or contractually subordinated to the Notes or the Note Guarantee (other than excluding any intercompany Indebtedness between or among the Notes Issuer and the 2003 Notesany of its Restricted Subsidiaries), except a any scheduled payment of interest or principal at Stated Maturityand any purchase within two years of the Scheduled Maturity thereof; or or (iv4) make any Restricted Investment (all such payments and other actions set forth in these clauses (i1) through (iv4) above being collectively referred to as "RESTRICTED PAYMENTS"“Restricted Payments”), unless, at the time of and after giving effect to such Restricted Payment: (ai) no Default or Event of Default shall have has occurred and be continuing or would occur as a consequence thereof; andis continuing; (bii) the Company Issuer would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Cash Flow Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 4.09 4.3(a) hereof; and (ciii) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company Issuer and its Restricted Subsidiaries after since the date of the Indenture Closing Date (excluding Restricted Payments permitted by clauses (ii2) and through (iii20) of the next succeeding paragraph), Section 4.2(b) hereof) is less than the sum of sum, without duplication, of: (iA) 50% of the Consolidated Net Income of the Company Issuer for the period (taken as one accounting period) from the beginning of the first fiscal quarter commencing after the date of the Indenture July 1, 2011, to the end of the Company's Issuer’s most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit), plus ; plus (iiB) 100% of the aggregate net cash proceeds and the Fair Market Value of non-cash consideration received by the Company Issuer since May 7, 2013 as a contribution to its common equity capital or from the issue or sale since the date of the Indenture of Equity Interests of the Company or MSC (other than Disqualified Stock) or of Disqualified Stock or debt securities of the Company or MSC that have been converted into such Qualifying Equity Interests (other than Qualifying Equity Interests (or Disqualified Stock or convertible debt securities) sold to a Subsidiary of the Company Issuer and other than excluding Excluded Contributions); plus (C) 100% of the aggregate net cash proceeds and the Fair Market Value of non-cash consideration received by the Issuer or a Restricted Subsidiary of the Issuer from the issue or sale of convertible or exchangeable Disqualified Stock of the Issuer or a Restricted Subsidiary of the Issuer or convertible or exchangeable debt securities of the Issuer or a Restricted Subsidiary of the Issuer (regardless of when issued or sold) or in connection with the conversion or exchange thereof, in each case that have been converted into or exchanged since May 7, 2013 for Qualifying Equity Interests (other than Qualifying Equity Interests and convertible or exchangeable Disqualified StockStock or debt securities sold to a Subsidiary of the Issuer), plus ; plus (iiiD) to the extent that any Restricted Investment that was made after the date May 7, 2013 (other than in reliance on clause (16) of the Indenture Section 4.2(b) hereof) is (i) sold for cash or otherwise cancelled, liquidated or repaid for cashcash or (ii) made in an entity that subsequently becomes a Restricted Subsidiary of the Issuer, the lesser of (A) the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any) and (B) the initial amount of such Restricted Investment plus (ivor, if less, the amount of cash received upon repayment or sale); plus (E) if to the extent that any Unrestricted Subsidiary (A) of the Issuer designated as such after the Closing Date is redesignated as a Restricted SubsidiarySubsidiary after the Closing Date, the fair market value lesser of (i) the Fair Market Value of the Issuer’s Restricted Investment in such redesignated Subsidiary (as determined made other than in good faith by the Board reliance on clause (16) of DirectorsSection 4.2(b) hereof) as of the date of its such redesignation or (Bii) pays any cash dividends or cash distributions to such Fair Market Value as of the Company or any of its Restricted Subsidiaries, 50date on which such Subsidiary was originally designated as an Unrestricted Subsidiary after the Closing Date; plus (F) 100% of any such dividends received in cash dividends by the Issuer or cash distributions made after the date a Restricted Subsidiary of the Indenture. Issuer after May 7, 2013 from an Unrestricted Subsidiary of the Issuer, to the extent that such dividends were not otherwise included in the Consolidated Net Income of the Issuer for such period. (b) The foregoing provisions shall of Section 4.2(a) hereof will not prohibit prohibit: (i1) the payment of any dividend or distribution or the consummation of any irrevocable redemption within 60 days after the date of declaration thereofof the dividend or distribution or giving of the redemption notice, as the case may be, if at said the date of declaration such or notice, the dividend or redemption payment would have complied with the provisions of the Indenture; ; (ii2) the redemption, repurchase, retirement, defeasance or other acquisition making of any PARI PASSU or subordinated Indebtedness or Equity Interests of the Company or MSC Restricted Payment in exchange for, or out of or with the net cash proceeds of the substantially concurrent sale or issuance (other than to a Restricted Subsidiary of the CompanyIssuer) of, other Qualifying Equity Interests or from the substantially concurrent contribution of common equity capital to the Company or MSC (other than any Disqualified Stock)Issuer; provided that the amount of any such net cash proceeds that are utilized for any such redemptionRestricted Payment will not be considered to be net proceeds of Qualifying Equity Interests for purposes of Section 4.2(a)(iii)(B) hereof and will not be considered to be Excluded Contributions; (3) the payment of any dividend (or, in the case of any partnership or limited liability company, any similar distribution), distribution or payment by a Restricted Subsidiary of the Issuer to the holders of its Equity Interests on a pro rata basis; (4) the repurchase, retirementredemption, defeasance or other acquisition shall be excluded from clause (c) (ii) or retirement for value of Indebtedness of the preceding paragraph; (iii) Issuer or the defeasance, redemption, repurchase Guarantor that is contractually subordinated to the Notes or other acquisition of PARI PASSU or subordinated Indebtedness to the Note Guarantee with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness; ; (iv5) the payment repurchase, redemption, acquisition or retirement for value of any dividend by a Equity Interests of the Issuer or any Restricted Subsidiary of the Company Issuer held by any current or former officer, director, consultant or employee (or their estates or beneficiaries of their estates) of the Issuer or any of its Restricted Subsidiaries pursuant to any management equity plan or equity subscription agreement, stock option agreement, shareholders’ agreement or similar agreement; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall not exceed $50.0 million in any twelve-month period (except to the holders extent such repurchase, redemption, acquisition or retirement is in connection with (x) the acquisition of a Permitted Business or merger, consolidation or amalgamation otherwise permitted by the Indenture and in such case the aggregate price paid by the Issuer and its Restricted Subsidiaries shall not exceed $100.0 million in connection with such acquisition of a Permitted Business or merger, consolidation or amalgamation or (y) the Continental/UAL Merger, in which case no dollar limitation shall be applicable); provided further, that the Issuer or any of its Equity Interests on a pro rata basis; Restricted Subsidiaries may carry over and make in subsequent twelve-month periods, in addition to the amounts permitted for such twelve-month period, up to $25.0 million of unutilized capacity under this clause (v5) any attributable to the immediately preceding twelve-month period; (6) the repurchase of Equity Interests or other securities deemed to occur upon (A) the exercise of stock options, warrants or other securities convertible or exchangeable into Equity Interests or any other securities, to the extent such Equity Interests or other securities represent a portion of the Company exercise price of those stock options, warrants or MSC from present and former other securities convertible or exchangeable into Equity Interests or any other securities or (B) the withholding of a portion of Equity Interests issued to employees and directors other participants under an equity compensation program of the Company Issuer or its Subsidiaries to cover withholding tax obligations of such persons in respect of such issuance; (7) so long as no Default has occurred and is continuing, the declaration and payment of regularly scheduled or MSC accrued dividends, distributions or payments to holders of any class or series of Disqualified Stock or subordinated debt of the Issuer or any preferred stock of any Restricted Subsidiary of the Issuer in each case either outstanding on the Closing Date or issued on or after the Closing Date in accordance with Section 4.3 hereof; (8) payments of cash, dividends, distributions, advances, common stock or other Restricted Payments by the Issuer or any of its Restricted Subsidiaries to allow the payment of cash in lieu of the issuance of fractional shares upon (A) the exercise of options or warrants, (B) the conversion or exchange of Capital Stock of any such Person or (C) the conversion or exchange of Indebtedness or hybrid securities into Capital Stock of any such Person; (9) the declaration and payment of dividends to holders of any class or series of Disqualified Stock of the Issuer or any Disqualified Stock or preferred stock of any Restricted Subsidiary of the Issuer to the extent such dividends are included in the definition of “Fixed Charges” for such Person; (10) in the event of a Change of Control, and if no Default shall have occurred and be continuing, the payment, purchase, redemption, defeasance or other acquisition or retirement of any subordinated Indebtedness of the Issuer or the Guarantor, in each case, at a purchase price not greater than 101% of the principal amount of such subordinated Indebtedness, plus any accrued and unpaid interest thereon; provided, however, that prior to such payment, purchase, redemption, defeasance or other acquisition or retirement, the Issuer or the Guarantor (or a third party to the extent permitted by the Indenture) has made a Change of Control Offer as a result of such Change of Control (it being agreed that the Issuer or the Guarantor may pay, purchase, redeem, defease or otherwise acquire or retire such subordinated Indebtedness even if the purchase price exceeds 101% of the principal amount of such subordinated Indebtedness; provided that the amount paid in excess of 101% of such principal amount is otherwise permitted under the Restricted Payments covenant); (11) Restricted Payments made with Excluded Contributions; (12) the distribution, as a dividend or otherwise, of shares of Capital Stock of, or Indebtedness owed to the Issuer or any of its Restricted Subsidiaries by, any Unrestricted Subsidiary; (13) the distribution or dividend of assets or Capital Stock of any Person in connection with any full or partial “spin-off” of a Subsidiary or similar transactions; provided that (i) the Issuer would, on the date of such distribution after giving pro forma effect thereto as if the same had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.3(a) hereof, (ii) such pro forma Fixed Charge Coverage Ratio referred to in the preceding clause (i) would be greater than or equal to such Fixed Charge Coverage Ratio immediately prior to such transaction or (iii) if such Subsidiary is not the Guarantor, no Default has occurred and is continuing; (14) the distribution or dividend of assets or Capital Stock of any Person in connection with any full or partial “spin-off” of a Subsidiary or similar transactions having an aggregate amount Fair Market Value not to exceed $5 million; 500.0 million since the Closing Date; (vi15) Permitted Investments; or (vii) so long as no Default has occurred and is continuing, other Restricted Payments in an aggregate amount not to exceed $5 million. The Board of Directors may designate 1.0 billion, such aggregate amount to be calculated from the Closing Date; (16) so long as no Default has occurred and is continuing, any Restricted Investment by the Issuer and/or any Restricted Subsidiary of the Issuer; (17) the payment of any amounts in respect of any restricted stock units or other instruments or rights whose value is based in whole or in part on the value of any Equity Interests issued to be any directors, officers or employees of the Issuer or any Restricted Subsidiary of the Issuer; (18) so long as no Default has occurred and is continuing, Restricted Payments (i) made to purchase or redeem Equity Interests of Issuer or (ii) consisting of payments in respect of any Indebtedness (whether for purchase or prepayment thereof or otherwise); (19) any Restricted Payment so long as both before and after giving effect to such Restricted Payment, Issuer and its Restricted Subsidiaries have Liquidity in the aggregate of at least $2.2 billion; and (20) Restricted Payments in an Unrestricted Subsidiary if such designation would aggregate amount which do not cause a Default. For purposes exceed 5.0% of making such determination, all outstanding Investments by the Company Consolidated Tangible Assets of Issuer and its Restricted Subsidiaries (except to the extent repaid in cash) in the Subsidiary so designated will be deemed to be Restricted Payments calculated at the time of such designation and will reduce Restricted Payment). (c) In the case of any Restricted Payment that is not cash, the amount available for of such non-cash Restricted Payments under the first paragraph of this covenant. All such outstanding Investments Payment will be deemed to constitute Investments in an amount equal to the fair market value of such Investments at the time of such designation (as determined in good faith by the Board of Directors). 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 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 by the Company Issuer or such SubsidiaryRestricted Subsidiary of the Issuer, as the case may be, pursuant to the Restricted Payment. The fair market . (d) For purposes of determining compliance with this Section 4.2, if a proposed Restricted Payment (or portion thereof) meets the criteria of more than one of the categories of Restricted Payments set forth in clauses (1) through (20) of Section 4.2(b) hereof, or is entitled to be made pursuant to Section 4.2(a) hereof, the Issuer will be entitled to classify on the date of its payment or later reclassify such Restricted Payment (or portion thereof) in any manner that complies with this Section 4.2. (e) For the avoidance of doubt, the following shall not constitute Restricted Payments and therefore will not be subject to any of the restrictions set forth in this Section 4.2: (1) the payment on or with respect to, or purchase, redemption, defeasance or other acquisition or retirement for value of any non-cash Indebtedness of the Issuer or any Restricted Subsidiary of the Issuer that is not contractually subordinated to the Notes and the Note Guarantee; (2) the payment of regularly scheduled amounts in respect of, and the issuance of common stock of the Issuer upon conversion of, the 6% Convertible Preferred Securities, Term Income Deferred Equity Securities (TIDES)SM issued by Continental Airlines Finance Trust II or the underlying 6% Convertible Junior Subordinated Debentures due 2030 issued by Continental; and (3) the conversion of the Capital Stock of the Issuer or the Guarantor pursuant to the Airline/Parent Merger. (f) Notwithstanding anything in this Indenture to the contrary, if a Restricted Payment shall be determined in good faith by the Board of Directors whose resolution with respect thereto shall be delivered to the Trustee, is made at a time when a Default has occurred and is continuing and such determination to be based upon an opinion or appraisal issued by an accounting, appraisal or investment banking firm of national standing if such fair market value exceeds $10.0 million. Not later than the date of making any Restricted PaymentDefault is subsequently cured, the Company shall deliver to Default or Event of Default arising from the Trustee an Officers' Certificate stating that making of such Restricted Payment is permitted and setting forth during the basis upon which the calculations required by this covenant were computed, together with a copy existence of any fairness opinion or appraisal required by the Indenturesuch Default shall simultaneously be deemed cured.

Restricted Payments. From and after the date hereof the (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiaries to, directly or indirectly: : (i1) declare or pay (without duplication) any dividend dividend, or make any other payment or distribution distribution, on account of the Company's ’s or any of its Restricted Subsidiaries' ’ Equity Interests (including any payment in connection with any merger or consolidation involving the Company or any of its Restricted Subsidiaries) or to the direct or indirect holders of the Company's ’s or any of its Restricted Subsidiaries' ’ Equity Interests in their capacity as such (other than dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company and other than dividends or distributions payable to the Company or a Restricted Subsidiary of the Company); ; (ii2) purchase, redeem or otherwise acquire or retire for value (including in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or any direct or indirect parent of the Company; ; (iii3) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Subordinated Indebtedness that is PARI PASSU with (excluding any intercompany Indebtedness between or subordinated to among the Notes (other than the Notes Company and the 2003 Notesany of its Restricted Subsidiaries), except a payment of interest or principal at the Stated MaturityMaturity thereof; or or (iv4) make any Restricted Investment (all such payments and other actions set forth in these clauses (i1) through (iv4) above being collectively referred to as "RESTRICTED PAYMENTS"“Restricted Payments”), unless, at the time of and after giving effect to such Restricted Payment: (a1) no Default or Event of Default shall have has occurred and be is continuing or would occur as a consequence thereof; andof such Restricted Payment; (b2) the Company would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Debt to Cash Flow Coverage Ratio test set forth in the first paragraph of Section 4.09 4.09(a) hereof; and (c3) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after since November 3, 2006 (or, if the date of Merger has been consummated, solely since the Indenture Closing Date) (excluding Restricted Payments permitted by clauses (ii2), (3), (4), (5), (6), (7), (8), (9) and (iii15) (and, if the Merger has been consummated, also by clauses (11), (12), (13) and (14)) of the next succeeding paragraphparagraph (b) of this Section 4.07), is less than the sum of sum, without duplication of: (iA) 50100% of the Consolidated Net Income Cash Flow of the Company for the period (taken as one accounting period) from the beginning of the first Company’s fiscal quarter commencing January 1, 2007 (or, if the Merger has been consummated, from and after the date of the Indenture Closing Date) to the end of the Company's ’s most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficitPayment, less 100% the product of such deficit)1.5 times the Company’s Consolidated Interest Expense, plus solely to the Closing Date, for the same period, and the product of 1.4 times the Company’s Consolidated Interest Expense, solely from and after the Closing Date, for the same period; plus (iiB) 100% of the aggregate net cash proceeds proceeds, and, if the Merger has been consummated, the Fair Market Value of any property other than cash, in each case received by the Company after November 3, 2006 (or, if the Merger has been consummated, after the Closing Date) as a contribution to its common equity capital (other than any such contribution resulting, or deemed to result, from the Merger) or from the issue or sale since the date of the Indenture of Equity Interests of the Company or MSC (other than Disqualified Stock) or from the issue or sale of convertible or exchangeable Disqualified Stock or convertible or exchangeable debt securities of the Company or MSC that have been converted into or exchanged for such Equity Interests (other than Equity Interests (or Disqualified Stock or convertible debt securities) sold to a Subsidiary of the Company and other than Disqualified Stock or convertible debt securities that have been converted into Disqualified StockCompany), plus ; plus (iiiC) to the extent that any Restricted Investment that was made after the date of the Indenture November 3, 2006 is sold for cash or Cash Equivalents, or otherwise is liquidated or repaid for cashcash or Cash Equivalents (if the Merger has been consummated, after the lesser of (A) the cash return of capital with respect Closing Date), an amount equal to such Restricted Investment cash and Cash Equivalents; plus (less D) to the cost of disposition, if any) and (B) the initial amount of such Restricted Investment plus (iv) if extent that any Unrestricted Subsidiary (A) of the Company designated as such after November 3, 2006 is redesignated as a Restricted SubsidiarySubsidiary after November 3, 2006 (or, if the Merger has been consummated, after the Closing Date), the fair market value Fair Market Value of the Company’s Investment in such redesignated Subsidiary (as determined in good faith by the Board of Directors) as of the date of its redesignation or such redesignation, other than to the extent such Investment constituted a Permitted Investment; plus (BE) pays 100% of any cash dividends or cash distributions to distributions, and if the Merger has been consummated, the Fair Market Value of any property other than cash, in each case actually received directly or indirectly by the Company or any a Restricted Subsidiary of its Restricted Subsidiariesthe Company that is a Guarantor after November 3, 50% 2006 (or, if the Merger has been consummated, after the Closing Date) from an Unrestricted Subsidiary of the Company, in each case, to the extent that such dividends, cash distributions or other property were not otherwise included in the Consolidated Net Income of the Company for such period and other than to the extent such Investment constituted a Permitted Investment; minus (F) the aggregate amount of any such cash dividends or cash distributions made Net Equity Proceeds taken into account for purposes of Incurring Indebtedness pursuant to clause (14) of the definition of “Permitted Debt” set forth in Section 4.09(b) hereof (if the Merger has been consummated, after the date Closing Date); plus (G) if the Merger has been consummated, the amount that would be calculated immediately prior to the consummation of the Indenture. The foregoing Merger on the Closing Date pursuant to clause (3) of the second paragraph of Section 4.07(a) of the Supplemental Indenture as in effect immediately prior to the Restatement Date (provided, that any calculation of cumulative Consolidated Cash Flow and Consolidated Interest Expense in sub-clause (A) of such clause (3) shall include (x) the Company’s last fiscal quarter ending prior to the Closing Date, and (y) the period from the beginning of the Company’s fiscal quarter during which the Closing Date occurs to the Closing Date, in each case, if internal financial statements are available for such period at the time of calculation, even if they are not available immediately prior to the consummation of the Merger on the Closing Date). (b) So long as no Default has occurred and is continuing or would be caused thereby, the provisions shall of Section 4.07(a) hereof will not prohibit prohibit: (i1) the payment of any dividend or the consummation of any irrevocable redemption within 60 days after the date of declaration thereofof the dividend or giving of the redemption notices, as the case may be, if at said the date of declaration such or notice, the dividend or redemption payment would have complied with the provisions of the this Supplemental Indenture; ; (ii2) the redemption, repurchase, retirement, defeasance or other acquisition making of any PARI PASSU or subordinated Indebtedness or Equity Interests of the Company or MSC Restricted Payment in exchange for, or out of the net cash proceeds of the substantially concurrent sale or issuance (other than to a Restricted Subsidiary of the Company) of, other Equity Interests of the Company or MSC (other than any Disqualified Stock)) or from the substantially concurrent contribution of common equity capital to the Company; provided that the amount of any such net cash proceeds that are utilized for any such redemptionRestricted Payment will be excluded from clause (3)(B) of Section 4.07(a) hereof, provided further that any Net Equity Proceeds (x) used for making a Restricted Investment pursuant to clause (10) of this Section 4.07(b) or (y) taken into account for purposes of incurring Indebtedness pursuant to clause (14) of the definition of “Permitted Debt” set forth in Section 4.09(b) hereof, may not also be used to make a Restricted Payment pursuant to this clause (2); (3) the repurchase, retirementredemption, defeasance or other acquisition shall be excluded from clause (c) (ii) or retirement for value of Subordinated Indebtedness of the preceding paragraph; (iii) the defeasance, redemption, repurchase Company or other acquisition of PARI PASSU or subordinated Indebtedness any Subsidiary Guarantor with the net cash proceeds from an a substantially concurrent incurrence of Permitted Refinancing Indebtedness; ; (iv4) the payment of any dividend (or, in the case of any partnership or limited liability company, any similar distribution) by a Restricted Subsidiary of the Company to the holders of its Equity Interests on a pro rata basis; (5) the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of Parent, HoldCo, the Company, any Restricted Subsidiary of the Company or any direct or indirect parent of the Company held by any current or former officer, director, employee or consultant of Parent, HoldCo, the Company or any of its Restricted Subsidiaries pursuant to any equity subscription agreement, stock option agreement, shareholders’ agreement or similar agreement; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may not exceed an amount equal to $20.0 million in any twelve-month period (vor, if the Merger is consummated, an amount equal to $50.0 million in any fiscal year); provided further, that such amount in any twelve-month period or fiscal year, as applicable, may be increased by an amount equal to (a) any repurchase the net cash proceeds from the sale of Equity Interests of Parent to current or former members of management, directors, consultants or employees that occurs after the Reference Date plus (b) the net cash proceeds of key man life insurance policies received by Parent or its Restricted Subsidiaries (or, if the Merger has been consummated, by Parent, Company or MSC its Restricted Subsidiaries) after the Reference Date; provided further, that such amount in any twelve-month period or fiscal year, as applicable, shall be reduced by the amount of Indebtedness incurred in such twelve-month period or fiscal year pursuant to clause (22) of Section 4.09(b) hereof; (6) the repurchase, redemption or other acquisition or retirement of Equity Interests deemed to occur upon the exercise or exchange of stock options, warrants or other similar rights to the extent such Equity Interests represent a portion of the exercise or exchange price of those stock options, warrants or other similar rights, and the repurchase, redemption or other acquisition or retirement of Equity Interests made in lieu of withholding taxes resulting from present the vesting, exercise or exchange of stock options, warrants or other similar rights; (7) the declaration and former employees and directors payment of regularly scheduled or accrued dividends to holders of any class or series of Disqualified Stock of the Company or any Restricted Subsidiary of the Company issued on or after the date of this Supplemental Indenture in accordance with the Debt to Cash Flow Ratio test described in Section 4.09(a) hereof; (8) Permitted Payments to Parent; (9) the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of Parent to the extent necessary to comply with law or to prevent the loss or secure the renewal or reinstatement of any FCC License held by the Company or any of its Subsidiaries; (10) Restricted Investments in an amount equal to 100% of the aggregate amount of any Net Equity Proceeds, less the aggregate amount of any Net Equity Proceeds (x) used for making a Restricted Payment pursuant to clause (2) of this Section 4.07(b) or (y) taken into account for purposes of incurring Indebtedness pursuant to clause (14) of the definition of “Permitted Debt” set forth in Section 4.09(b) hereof; (11) if the Merger has been consummated, payments made to DT or its Subsidiaries from the proceeds of the Towers Transaction; (12) if the Merger has been consummated, the repurchase, redemption or MSC other acquisition or retirement for value of any Subordinated Indebtedness pursuant to provisions similar to those of Section 4.15 and Section 4.10; provided that all Notes tendered by the Holders of the Notes in connection with a Change of Control Offer or Asset Sale Offer, as applicable, have been repurchased, redeemed or otherwise acquired for value; (13) on and after the “Closing Date” (as defined in the Business Combination Agreement), Restricted Payments in connection with the “Cash Payment”, as defined in the Business Combination Agreement, in an aggregate amount not to exceed $5 million1.5 billion; (14) if the Merger has been consummated, the making of cash payments in connection with any conversion of Convertible Debt in an aggregate amount since the Closing Date not to exceed the sum of (a) the principal amount of such Convertible Debt plus (b) any payments received by the Company or any of its Restricted Subsidiaries pursuant to the exercise, settlement or termination of any related Permitted Bond Hedge Transactions; and (vi) Permitted Investments; or (vii15) other Restricted Payments in an aggregate amount since the date of this Supplemental Indenture not to exceed $5 million. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary 75.0 million (or, if such designation would not cause a Default. For purposes of making such determinationthe Merger has been consummated, 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 covenant. All such outstanding Investments will be deemed to constitute Investments in an aggregate amount equal since the Closing Date not to the fair market value of such Investments at the time of such designation (as determined in good faith by the Board of Directorsexceed $375.0 million). 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 amount of all Restricted Payments (other than cash) shall will 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 by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value If the Merger has not been consummated, the determination of the Fair Market Value of any non-cash Restricted Payment shall assets or securities that are required to be determined in good faith valued by the Board of Directors whose resolution with respect thereto shall this Section 4.07 will be delivered to the Trustee, such determination to be based upon an opinion or appraisal issued by an accounting, appraisal or investment banking firm of national standing if such fair market value exceeds $10.0 million. Not later than the date of making any Restricted Payment, the Company shall deliver in writing to the Trustee an Officers' Certificate stating that if the Fair Market Value of such assets or securities exceeds $50.0 million (excluding Restricted Payment is Payments permitted by clauses (2), (3), (6) and setting forth the basis upon which the calculations required by (9) of this covenant were computed, together with a copy of any fairness opinion or appraisal required by the IndentureSection 4.07(b)).

Restricted Payments. From and after the date hereof the The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly: (ia) declare or pay any dividend or make any other payment or distribution on account of the Company's or any of its Restricted Subsidiaries' Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company or any of its Restricted Subsidiaries) or to the direct or indirect holders Holders of the Company's or any of its Restricted Subsidiaries' Equity Interests in their capacity as such (other than dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company or any Restricted Subsidiary of the Company or payable to the Company or a Restricted Subsidiary of the Company); (iib) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or any direct or indirect parent Restricted Subsidiary of the CompanyCompany held by any Person (other than the Company or any of its Wholly Owned Restricted Subsidiaries); (iiic) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness that is PARI PASSU with or subordinated to the Notes (other than or the Notes and the 2003 Notes)Note Guarantees, except a payment of interest or principal and premium, if any, at the Stated MaturityMaturity thereof; or (ivd) make any Restricted Investment (all such payments and other actions set forth in these clauses (ia) through (ivd) above being collectively referred to as "RESTRICTED PAYMENTSRestricted Payments"), unless, at the time of and after giving effect to such Restricted Payment: (ai) no Default or Event of Default shall have has occurred and be is continuing or would occur as a consequence thereofof such Restricted Payment; and (bii) the Company would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Cash Flow Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 4.09 hereof; and (ciii) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after the date of the this Indenture (excluding Restricted Payments permitted by clauses (iib), (c) and (iiid) of the next succeeding paragraph), is less than the sum of sum, without duplication, of: (i1) 50% of the Consolidated Net Income of the Company for the period (taken as one accounting period) from the beginning of the first fiscal quarter commencing after the date of the this Indenture to the end of the Company's most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit), plus (ii2) 100% of the aggregate net cash proceeds received by the Company since the date of this Indenture as a contribution to its common equity capital or from the issue or sale since the date of the Indenture of Equity Interests of the Company or MSC (other than Disqualified Stock) or from the issue or sale of convertible or exchangeable Disqualified Stock or convertible or exchangeable debt securities of the Company or MSC that have been converted into or exchanged for such Equity Interests (other than Equity Interests (or Disqualified Stock or convertible debt securities) sold to a Subsidiary of the Company and other than Disqualified Stock or convertible debt securities that have been converted into Disqualified StockCompany), plus (iii3) (A) to the extent that any Restricted Investment that was made after the date of the this Indenture is sold for cash or otherwise liquidated or repaid for cashcash for an amount in excess of the initial amount of such Restricted Investment, the lesser sum of (Ax) 50% of the cash proceeds with respect to such Restricted Investment in excess of the aggregate amount invested in such Restricted Investment (less the cost of disposition, if any) and (y) the aggregate amount invested in such Restricted Investment, and (B) to the extent that any such Restricted Investment is sold for cash or otherwise liquidated or repaid in cash for an amount equal to or less than the initial amount of such Restricted Investment, the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any) and (B) ); provided that the initial amount of such Restricted Investment any Net Proceeds that are applied to repurchase the Notes pursuant to Section 4.15(c) shall be excluded from this clause (iii) (3) to the extent otherwise includible; plus (iv4) if 50% of any dividends received by the Company or a Restricted Subsidiary after the date of this Indenture from an Unrestricted Subsidiary of the Company, to the extent that such dividends were not otherwise included in Consolidated Net Income of the Company for such period, plus (5) to the extent that any Unrestricted Subsidiary (A) of the Company is redesignated as a Restricted SubsidiarySubsidiary after the date of this Indenture, the lesser of (x) the fair market value of the Company's Investment in such redesignated Subsidiary (as determined in good faith by the Board of Directors) as of the date of its such redesignation or (By) pays any cash dividends or cash distributions to the Company or any such fair market value as of its Restricted Subsidiaries, 50% of any such cash dividends or cash distributions made after the date of on which such Subsidiary was originally designated as an Unrestricted Subsidiary. So long as no Default has occurred and is continuing or would be caused thereby, the Indenture. The foregoing preceding provisions shall not prohibit prohibit: (ia) the payment of any dividend within 60 days after the date of declaration thereofof the dividend, if at said the date of declaration such the dividend payment would have complied with the provisions of the this Indenture; (iib) the redemption, repurchase, retirement, defeasance or other acquisition of any PARI PASSU or subordinated Indebtedness or Equity Interests of the Company or MSC Junior Notes in exchange for, or out of the net cash proceeds of the substantially concurrent sale or issuance (other than to a Restricted Subsidiary of the Company) of, other Equity Interests of the Company or MSC (other than any Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such redemption, repurchase, retirement, defeasance or other acquisition shall be excluded from clause (ciii) (ii2) of the preceding paragraph; (iiic) the defeasance, redemption, repurchase or other acquisition of PARI PASSU or subordinated Indebtedness of the Company or any Restricted Subsidiary with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness; (ivd) the payment of any dividend by a Restricted Subsidiary of the Company to the holders of its Equity Interests on a pro rata basis; and (ve) the repurchase, redemption or other acquisition or retirement for value of any repurchase of Equity Interests of the Company or MSC from present and former employees and directors any Restricted Subsidiary of the Company held by any member of the Company's (or any of its Subsidiaries Restricted Subsidiaries') management pursuant to any management equity subscription agreement, stock option agreement or MSC in an similar agreement; provided that the aggregate amount price paid for all such repurchased, redeemed, acquired or retired Equity Interests may not to exceed $5 million; (vi) Permitted Investments; or (vii) other Restricted Payments 250,000 in an aggregate amount not to exceed $5 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 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 covenant. 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 (as determined in good faith by the Board of Directors). 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 Subsidiarytwelve-month period. 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 Section 4.07 shall be determined in good faith by the Board of Directors in good faith, whose resolution with respect thereto shall be delivered to the Trustee, such . The Board of Directors' determination to must be based upon an opinion or appraisal issued by an accounting, appraisal or investment banking firm of national standing if such the fair market value exceeds $10.0 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 covenant Section 4.07 were computed, together with a copy of any fairness opinion or appraisal required by the this Indenture.

Restricted Payments. From and after the date hereof the (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiaries to, directly or indirectly: : (i1) declare or pay any dividend or make any other payment or distribution on account of the Company's or any of its Restricted Subsidiaries' Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company or any of its Restricted Subsidiaries) or to the direct or indirect holders of the Company's or any of its Restricted Subsidiaries' Equity Interests in their capacity as such (other than (i) dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company); , and (ii) dividends or distributions payable to the Company or a Restricted Subsidiary of the Company); (2) purchase, redeem or otherwise acquire or retire for value (including without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or any direct or indirect parent of the Company; ; (iii3) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness of the Company or any Guarantor that is PARI PASSU with Subordinated Indebtedness (excluding any intercompany Indebtedness between or subordinated to among the Notes (other than the Notes Company and the 2003 Notesany of its Restricted Subsidiaries), except a payment of interest or principal at within 90 days of the Stated MaturityMaturity thereof; or or (iv4) make any Restricted Investment (all such payments and other actions set forth in these clauses (i1) through (iv4) above being collectively referred to as "RESTRICTED PAYMENTSRestricted Payments"), unless, at the time of and after giving effect to such Restricted Payment: (a1) no Default or Event of Default shall have has occurred and be is continuing or would occur as a consequence thereof; andof such Restricted Payment; (b2) the Company would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Cash Flow Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 4.09 4.09(a) hereof; and (c3) such Restricted Payment, together with the aggregate amount amount, without duplication, of all other Restricted Payments made by the Company and its Restricted Subsidiaries after since the date of the Indenture Issue Date (excluding Restricted Payments permitted by clauses (ii2) and through (iii13) of the next succeeding paragraphSection 4.07(b)), is less than the sum of sum, without duplication of: (iA) 50% of the Consolidated Net Income of the Company for the period (taken as one accounting period) from the beginning of the first fiscal quarter commencing after during which the date of the Indenture Issue Date occurs to the end of the Company's most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit), plus ; plus (iiB) 100% of the aggregate net cash proceeds or Fair Market Value of any assets received by the Company since the Issue Date as a contribution to its common equity capital (other than Disqualified Stock) which shall not be deemed to include any net cash proceeds received in connection with any contribution designated at the time it is made as a restricted contribution (a "Restricted Contribution"), or from the issue or sale since the date of the Indenture of Equity Interests of the Company or MSC (other than Disqualified Stock) or from the issue or sale of Disqualified Stock or debt securities of the Company or MSC that have been converted into or exchanged for such Equity Interests (other than Equity Interests (or Disqualified Stock or convertible debt securities) sold to a Subsidiary of the Company and other than Disqualified Stock or convertible debt securities that have been converted into Disqualified StockCompany), plus ; plus (iiiC) to the extent that any Restricted Investment that was made after the date of the Indenture Issue Date is sold for cash or otherwise liquidated or repaid for cash, the lesser of (A) the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any); plus (D) and (B) to the initial amount of such Restricted Investment plus (iv) if extent that any Unrestricted Subsidiary (A) of the Company designated as such after the Issue Date is redesignated as a Restricted SubsidiarySubsidiary after the Issue Date, the fair market value Fair Market Value of such redesignated Subsidiary (as determined in good faith by the Board of Directors) as of the date of its redesignation or on which such Subsidiary was redesignated as a Restricted Subsidiary after the Issue Date; plus (BE) pays any cash dividends or cash distributions to the Company or any of its Restricted Subsidiaries, 50% of any such cash dividends received by the Company or cash distributions made a Guarantor after the date Issue Date from an Unrestricted Subsidiary of the Indenture. Company, to the extent that such dividends were not otherwise included in the Consolidated Net Income of the Company for such period. (b) The foregoing provisions shall of Section 4.07(a) hereof will not prohibit prohibit: (i1) the payment of any dividend or the consummation of any irrevocable redemption within 60 days after the date of declaration thereofof the dividend or giving of the redemption notice, as the case may be, if at said the date of declaration such or notice, the dividend or redemption payment would have complied with the provisions of the been permitted by this Indenture; ; (ii2) the redemption, repurchase, retirement, defeasance or other acquisition making of any PARI PASSU or subordinated Indebtedness or Equity Interests of the Company or MSC Restricted Payment in exchange for, or out of the net cash proceeds of the substantially concurrent sale or issuance within 30 days of such Restricted Payment (other than to a Restricted Subsidiary of the Company) of, other Equity Interests of the Company or MSC (other than any Disqualified Stock)) or from a substantially concurrent contribution of common equity capital (other than Disqualified Stock) to 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 Restricted Payment will be excluded from clause (c) (ii3)(B) of the preceding paragraph; Section 4.07(a) hereof; (iii3) the defeasancepurchase, repurchase, redemption, repurchase defeasance, satisfaction and discharge or other acquisition or retirement for value of PARI PASSU Indebtedness of the Company or subordinated any Guarantor that is Subordinated Indebtedness with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness; , within 30 days of such purchase, repurchase, redemption, defeasance, satisfaction and discharge or other acquisition or retirement for value; (iv4) the payment of any dividend (or in the case of any partnership or limited liability company, any similar distribution) by a Restricted Subsidiary of the Company to the holders of its Equity Interests on a pro rata basis; (5) so long as no 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, any Restricted Subsidiary of the Company or any direct or indirect parent of the Company held by any current or former officer, director, consultant or employee of the Company or any of its Restricted Subsidiaries or their estates or beneficiaries of their estates pursuant to any equity subscription agreement, stock option agreement, shareholders' agreement or similar agreement; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may not exceed $3.0 million in any twelve-month period; provided, however, that amounts available pursuant to this clause (v5) to be utilized for Restricted Payments during any twelve-month period may be carried forward and utilized in any subsequent twelve-month period, up to a maximum of $2.0 million in any twelve-month period; (6) the purchase or repurchase of Equity Interests deemed to occur upon the exercise of stock options or warrants to the extent such Equity Interests represent a portion of the exercise price of those stock options or warrants; (7) so long as no Default has occurred and is continuing or would be caused thereby, the declaration and payment of regularly scheduled or accrued dividends to holders of any class or series of Disqualified Stock of the Company or MSC from present and former employees and directors any Restricted Subsidiary of the Company issued on or its Subsidiaries after the Issue Date in accordance with Section 4.09 hereof; (8) the purchase by the Company of fractional shares upon conversion of any securities of the Company into Equity Interests of the Company; (9) upon the occurrence of a Change of Control or MSC an Asset Sale and after the completion of the offer to repurchase of the Notes as described in Section 4.10 hereof or Section 4.15 hereof (including the purchase of all Notes tendered), any purchase, defeasance, retirement, redemption or other acquisition of Subordinated Indebtedness required under the terms of such Indebtedness as a result of such Change of Control or Asset Sale; (10) so long as no Default has occurred and is continuing or would result from such transaction, dividends or distributions, redemptions of Capital Stock and other Restricted Payments in an aggregate amount not to exceed the sum of all Restricted Contributions, provided that, on the date of such dividend, distribution, redemption of Capital Stock or other Restricted Payment the Company must be able to incur at least $5 million1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.09(a) hereof; (11) contributions of cash, real property or other property to an Unrestricted Subsidiary consisting of cash, real property or other property received by the Company in an amount equal to a contribution to the Company's common equity capital or a purchase of the Company's Equity Interests (other than Disqualified Stock of the Company) and any related Investment in such Unrestricted Subsidiary by the Company or a Guarantor; provided that such cash, real property or other property is specifically identified in an officer's certificate delivered to the trustee; provided, further that the amount of any such net cash proceeds that are utilized for any such Restricted Payment will be excluded from clause (vi3)(B) of Section 4.07(a); (12) Permitted InvestmentsPayments to Parent; and (13) so long as no Default has occurred and is continuing or (vii) would be caused thereby, other Restricted Payments in an aggregate amount not to exceed $5 million. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such designation would not cause a Default12.0 million since the Issue Date. For purposes of making such determinationdetermining compliance with this Section 4.07, all outstanding Investments by in the event that a proposed Restricted Payment (or portion thereof) meets the criteria of more than one of the categories of Restricted Payments described in clauses (1) through (13) above, or is entitled to be incurred pursuant to Section 4.07(a), the Company and its Restricted Subsidiaries (except to the extent repaid in cash) in the Subsidiary so designated will be deemed entitled 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 covenant. 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 (as determined in good faith by the Board of Directors). Such designation shall only be permitted if classify such Restricted Payment would be permitted at such time (or portion thereof) on the date of its payment in any manner that complies with this Section 4.07 and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted SubsidiaryPayment will be treated as having been made pursuant to only such clause or clauses or Section 4.07(a). The amount of all Restricted Payments (other than cash) shall will 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 by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value Fair Market Value of any non-cash Restricted Payment shall assets or securities that are required to be valued by this Section 4.07 will be determined in good faith by an officer of the Company if the Fair Market Value is less than $5.0 million and, if the Fair Market Value is $5.0 million or more, by the Board of Directors of the Company, whose resolution with respect thereto shall be delivered to the Trustee, such . The Board of Directors' determination to must be based upon an opinion or appraisal issued by an accounting, appraisal or investment banking firm of national standing if such fair market value the Fair Market Value exceeds $10.0 15.0 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 covenant were computed, together with a copy of any fairness opinion or appraisal required by the Indenture.

Restricted Payments. From and after Except as permitted in the date hereof provisos set forth below, the Company shall not, and the Company shall not permit any of its Subsidiaries to, directly or indirectly: (i) redeem, defease, repurchase, repay or make any sinking fund, defeasance, retirement or similar payment or otherwise make any payment in respect of (in whole or in part, whether by way of open market purchases, tender offers, private transactions or otherwise), all or any portion of any Indebtedness (other than Permitted Senior Indebtedness, this Note and the Other Notes), including, but not limited to, payments in respect of principal of (or premium, if any) or interest on, such Indebtedness, (ii) declare or pay any dividend or make any other payment or distribution on account of the Company's ’s or any of its Restricted Subsidiaries' Equity Interests ’ equity or equity-linked securities or to the direct or indirect holders of the Company's ’s or any of its Restricted Subsidiaries' Equity Interests ’ equity or equity-linked securities in their capacity as such (other than dividends such, or distributions payable in Equity Interests (other than Disqualified Stock) of the Company); (ii) purchase, redeem or otherwise acquire or retire for value any Equity Interests of the Company or any direct or indirect parent of the Company; (iii) make any repayment, redemption, retirement, defeasance, sinking fund or similar payment on or with respect topurchase or other acquisition for value, or purchaseobtain the surrender of, redeem, defease any shares of any class of equity or otherwise acquire or retire for value any Indebtedness that is PARI PASSU with or subordinated to the Notes (other than the Notes and the 2003 Notes), except a payment of interest or principal at Stated Maturity; or (iv) make any Restricted Investment (all such payments and other actions set forth in clauses (i) through (iv) above being collectively referred to as "RESTRICTED PAYMENTS"), unless, at the time of and after giving effect to such Restricted Payment: (a) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof; and (b) the Company would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable fourequity-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Cash Flow Coverage Ratio test set forth in the first paragraph of Section 4.09 hereof; and (c) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Subsidiaries after the date of the Indenture (excluding Restricted Payments permitted by clauses (ii) and (iii) of the next succeeding paragraph), is less than the sum of (i) 50% of the Consolidated Net Income of the Company for the period (taken as one accounting period) from the beginning of the first fiscal quarter commencing after the date of the Indenture to the end of the Company's most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit), plus (ii) 100% of the aggregate net cash proceeds received by the Company from the issue or sale since the date of the Indenture of Equity Interests of the Company or MSC (other than Disqualified Stock) or of Disqualified Stock or debt linked securities of the Company or MSC that have been converted into such Equity Interests (other than Equity Interests (or Disqualified Stock or convertible debt securities) sold to a Subsidiary of the Company and other than Disqualified Stock or convertible debt securities that have been converted into Disqualified Stock), plus (iii) to the extent that any Restricted Investment that was made after the date of the Indenture is sold for cash or otherwise liquidated or repaid for cash, the lesser of (A) the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any) and (B) the initial amount of such Restricted Investment plus (iv) if any Unrestricted Subsidiary (A) is redesignated as a Restricted Subsidiary, the fair market value of such redesignated Subsidiary (as determined in good faith by the Board of Directors) as of the date of its redesignation or (B) pays any cash dividends or cash distributions to the Company or any of its Restricted SubsidiariesSubsidiaries or any outstanding warrants, 50% options or other rights for the purchase or acquisition of shares of any such cash dividends class of equity or cash distributions made after the date of the Indenture. The foregoing provisions 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 the Indenture; (ii) the redemption, repurchase, retirement, defeasance or other acquisition of any PARI PASSU or subordinated Indebtedness or Equity Interests equity-linked securities of the Company or MSC any of its Subsidiaries, now or hereafter outstanding, provided, however, that the Company may make mandatory scheduled interest payments in exchange for, or out respect of Permitted Indebtedness outstanding as of the net cash proceeds of the substantially concurrent sale or issuance (other than to a Restricted Subsidiary of the Company) of, other Equity Interests of the Company or MSC (other than any Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such redemption, repurchase, retirement, defeasance or other acquisition shall be excluded from clause (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 Equity Interests on a pro rata basis; (v) any repurchase of Equity Interests of the Company or MSC from present and former employees and directors of the Company or its Subsidiaries or MSC in an aggregate amount not to exceed $5 million; (vi) Permitted Investments; or (vii) other Restricted Payments in an aggregate amount not to exceed $5 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 date hereof to the extent repaid in cash) in the Subsidiary so designated will be deemed obligation to be Restricted Payments make such payments was incurred prior to the date hereof and if at the time such payment is due or is otherwise made or, after giving effect to such payment, no event constituting, or that with the passage of such designation time and will reduce the amount available for Restricted Payments under the first paragraph without being cured would constitute, an Event of this covenant. All such outstanding Investments will Default has occurred and is continuing; provided, further, that payments of principal or interest with respect to any Permitted Indebtedness may be deemed to constitute Investments in an amount equal to the fair market value of such Investments at the time of such designation (as determined in good faith made solely by the Board conversion or exchange into the Company’s or any of Directors). 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 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 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, such determination to be based upon an opinion or appraisal issued by an accounting, appraisal or investment banking firm of national standing if such fair market value exceeds $10.0 million. Not later than 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 covenant were computed, together with a copy of any fairness opinion or appraisal required by the Indentureits Subsidiaries’ equity securities.

Restricted Payments. From and after the date hereof the The Company shall will not, and shall will not permit any of its Subsidiaries to, directly or indirectly: : (iA) declare or pay any dividend or make any other payment or distribution on account or in respect of the Company's ’s or any of its Restricted Subsidiaries' Subsidiary’s Equity Interests (including any such payment made in connection with any merger or to the direct or indirect holders of the Company's or any of its Restricted Subsidiaries' Equity Interests in their capacity as consolidation involving such (other than Person), except dividends or distributions payable solely in Equity Interests (other than Disqualified Stock) of the CompanyCompany or such Subsidiary and except dividends or distributions payable solely to the Company or any of its Subsidiaries (and, if such Subsidiary is not a Wholly Owned Subsidiary, to its other Equity Interest Holders on a pro rata basis with respect to the class of Equity Interests on which such dividend or distribution is made, or on a basis that results in the receipt by the Company or any of its Subsidiaries of dividends or distributions of greater value than it would receive on a pro rata basis); or (iiB) purchase, redeem or otherwise acquire or retire for value (including in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or any direct or indirect parent of the Company; (iii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness that is PARI PASSU with or subordinated to the Notes (other than the Notes and the 2003 Notes), except a payment of interest or principal at Stated Maturity; or (iv) make any Restricted Investment (all such payments and other actions set forth in clauses (iA) through and (ivB) above being collectively referred to as "RESTRICTED PAYMENTS"“Restricted Payments”), unless, at the time of and after giving effect to such Restricted Payment: (ai) no Default or Event of Default shall have has occurred and be is continuing or would occur as a consequence thereof; andafter giving effect to such Restricted Payment; (bii) the Company would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at thereto, (x) the beginning Fixed Charge Coverage Ratio shall not be less than 2.00 to 1.00 and (y) the aggregate outstanding Indebtedness of the applicable four-quarter periodCompany and its Subsidiaries minus cash and Cash Equivalents of the Company and its Subsidiaries that are not Restricted, have been permitted which for the avoidance of doubt shall not include any cash or Cash Equivalents of the customers of the Company and its Subsidiaries, and that are held in a deposit account or securities account subject to incur at least a perfected security interest in favor of the Collateral Agent in accordance with the control requirements under the UCC in an amount not to exceed $1.00 of additional Indebtedness pursuant to the Cash Flow Coverage Ratio test set forth in the first paragraph of Section 4.09 hereof25,000,000 ; and (ciii) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Subsidiaries after since the date of the Indenture (excluding Restricted Payments permitted by clauses (ii) and (iii) of the next succeeding paragraph)Issue Date, is less than the sum of sum, without duplication, of: (i1) 50% of the Consolidated Net Income of the Company for the period (taken as one accounting period) from the beginning of the first fiscal quarter commencing after the date of the Indenture Issue Date to the end of the Company's ’s most recently ended completed fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit), plus ; plus (ii2) 100% of the aggregate net cash proceeds received by the Company since the Issue Date as a contribution to its common equity capital or from the issue or sale since the date of the Indenture of Equity Interests of the Company or MSC (other than Disqualified Stock) of the Company that are not otherwise applied or from the issue or sale of convertible or exchangeable Disqualified Stock of the Company or convertible or exchangeable debt securities of the Company, in each case that have been converted into, settled with or exchanged for Equity Interests of the Company (other than (x) Disqualified Stock, (y) Equity Interests and convertible or exchangeable Disqualified Stock or debt securities of the Company or MSC that have been converted into such Equity Interests (other than Equity Interests (or Disqualified Stock or convertible debt securities) sold to a Subsidiary of the Company and other than Disqualified Stock or convertible debt securities that have been converted into Disqualified Stock(z) any Equity Interests the proceeds of which were issued to incur Indebtedness pursuant to Section 3.10(B)(xvii), plus . (iiiC) Notwithstanding anything to the extent that any Restricted Investment that was made after the date of the Indenture is sold for cash or otherwise liquidated or repaid for cashcontrary therein, the lesser of (A) the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any) and (B) the initial amount of such Restricted Investment plus (iv) if any Unrestricted Subsidiary (A) is redesignated as a Restricted Subsidiary, the fair market value of such redesignated Subsidiary (as determined in good faith by the Board of Directors) as of the date of its redesignation or (B) pays any cash dividends or cash distributions to the Company or any of its Restricted Subsidiaries, 50% of any such cash dividends or cash distributions made after the date of the Indenture. The foregoing provisions shall Section 3.08 will not prohibit prohibit: (i) the payment of any dividend or distribution on account of Equity Interests or the consummation of any redemption within 60 days after the date of declaration thereofof the dividend or distribution on account of Equity Interests, as the case may be, if at said the date of declaration such or notice, the dividend, distribution or redemption payment would have complied with the provisions of the Indenture; this Section 3.08; (ii) [Reserved]; (iii) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the redemption, repurchase, retirement, defeasance redemption or other acquisition or retirement for value of any PARI PASSU or subordinated Indebtedness or Equity Interests of the Company or MSC in exchange for, or out any Subsidiary of the net cash proceeds Company held by any current or former officer, director, employee or consultant of the substantially concurrent sale or issuance (other than to a Restricted Company, any Subsidiary of the Company) of, other or any Permitted Transferee of the foregoing pursuant to any equity subscription agreement, stock option agreement, shareholders’ agreement or similar agreement; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may not exceed $5,000,000 in the aggregate after the Issue Date; provided, further, that such amount may be increased by an amount not to exceed the cash proceeds from the sale of Equity Interests (other than Disqualified Stock) of the Company to officers, directors, employees or consultants of the Company, any of its Subsidiaries or any of its direct or indirect parent companies that occurs after the Issue Date to the extent the cash proceeds from the sale of such Equity Interests have not otherwise been applied; (iv) the purchase, redemption or other acquisition or retirement for value of Equity Interests (x) deemed to occur upon the exercise or conversion of stock options, warrants, convertible notes or similar rights to acquire Equity Interests to the extent that such Equity Interests represent all or a portion of the exercise, exchange or conversion price of those stock options, warrants, convertible notes or similar rights, or (y) made in lieu of payment of withholding taxes in connection with the vesting of Equity Interests or any exercise or exchange of stock options, warrants, convertible notes or similar rights to acquire such Equity Interests; (v) [Reserved]; (vi) each Subsidiary of the Company may make Restricted Payments to the Company or any Guarantor or to another Subsidiary of the Company which is the immediate parent of the Subsidiary making such Restricted Payment; (vii) repurchases of Capital Stock deemed to occur upon the withholding of a portion of the Capital Stock granted or awarded to a current or former director, officer, employee, manager or director of the Company or MSC any of its Subsidiaries (other than or consultant or advisor or any Disqualified Stock); provided that the amount spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees 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; foregoing) solely to the extent necessary to pay for the taxes payable by such Person upon such grant or award (iiior upon the vesting thereof); (viii) [Reserved]; (ix) [Reserved]; (x) [Reserved]; (xi) [Reserved]; (xii) the defeasancerepurchase of the Notes upon a Fundamental Change, redemptionas contemplated hereunder, repurchase and the delivery of the Conversion Consideration due under the terms of the Notes, including the making of any Make-Whole Interest Payment upon a conversion of any Note, whether in cash or other acquisition shares of PARI PASSU the Common Stock; (xiii) [Reserved]; (xiv) any non-Wholly Owned Subsidiary of the Company may make Restricted Payments (which may be in cash) to its shareholders, members or subordinated Indebtedness with partners generally, so long as the net cash proceeds from an incurrence Company or the Subsidiary which owns the Capital Stock in the Subsidiary making such Restricted Payment receives at least its proportionate share thereof (based upon its relative holding of Permitted Refinancing Indebtedness; the Capital Stock in the Subsidiary making such Restricted Payment and taking into account the relative preferences, if any, of the various classes of Capital Stock of such Subsidiary); (ivxv) the payment of cash, dividends, distributions, advances or other Restricted Payments by the Company or any of its Subsidiaries in lieu of the issuance of fractional shares of Capital Stock in connection with any dividend by a Restricted Subsidiary or split of, or upon exercise or conversion of the Company to the holders of its Equity Interests on a pro rata basis; (v) any repurchase of Equity Interests warrants, options or other securities exercisable or convertible into, Capital Stock of the Company or MSC from present and former employees and directors in connection with the issuance of the Company or its Subsidiaries or MSC in an aggregate amount not to exceed $5 million; (vi) Permitted Investments; or (vii) other Restricted Payments in an aggregate amount not to exceed $5 million. The Board of Directors may designate any Restricted Subsidiary dividend otherwise permitted to be an Unrestricted Subsidiary if such designation would not cause a Default. made under this Section 3.08. (D) For purposes of making such determinationthis Section 3.08, all outstanding Investments by the Company and its Restricted Subsidiaries (except to the extent repaid in cash) in the Subsidiary so designated Notes will be deemed not to be Equity Interests. (E) For purposes of determining compliance with this Section 3.08, if any Restricted Payments at the time of such designation and will reduce the amount available for Restricted Payments under the first paragraph of this covenant. 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 Payment (as determined in good faith by the Board of Directors). Such designation shall only or portion thereof) would be permitted if pursuant to one or more provisions described above, the Company may divide and classify such Restricted Payment in any manner that complies with this covenant and may later divide and reclassify any such Restricted Payment so long as the Restricted Payment (as so divided and/or reclassified) would be permitted at such time and if such Restricted Subsidiary otherwise meets to be made in reliance on the definition applicable exception as 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 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, such determination to be based upon an opinion or appraisal issued by an accounting, appraisal or investment banking firm of national standing if such fair market value exceeds $10.0 million. Not later than 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 covenant were computed, together with a copy of any fairness opinion or appraisal required by the Indenturereclassification.

Restricted Payments. From and after the date hereof the (a) The Company shall notwill not declare, and shall not permit any of its Subsidiaries to, directly pay or indirectly: (i) declare or pay make any dividend or make distribution (in cash, property or obligations) on any other payment shares of capital stock (now or distribution on account of the Company's or any of its Restricted Subsidiaries' Equity Interests or to the direct or indirect holders of the Company's or any of its Restricted Subsidiaries' Equity Interests in their capacity as such (other than dividends or distributions payable in Equity Interests (other than Disqualified Stockhereafter outstanding) of the Company); , or on any warrants, options or other rights with respect to any class of capital stock (iinow or hereafter outstanding) of the Company, or apply or permit any Subsidiary to apply, any of its funds, property or assets to the purchase, redeem redemption, sinking fund, or otherwise acquire other retirement of, or retire for value agree, or permit any Equity Interests Subsidiary of the Company to agree, to purchase or redeem (or set aside funds to purchase or redeem) any direct shares of any class of capital stock (now or indirect parent hereafter outstanding) of the Company; (iii) make any payment on , or warrants, options or other rights with respect to, to any class of capital stock (now or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness that is PARI PASSU with or subordinated to hereafter outstanding) of the Notes (other than the Notes and the 2003 Notes), except a payment of interest or principal at Stated Maturity; or (iv) make any Restricted Investment Company (all such payments and other actions set forth in clauses (i) through (iv) above being collectively referred to as or any of the foregoing, "RESTRICTED PAYMENTS"); PROVIDED, unlessHOWEVER, at that so long as the time of Company remains qualified as a REIT under the Code, the Company may make Restricted Payments if and after giving effect to such Restricted Payment: the extent (abut only to the extent) that: (i) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof; and (b) the Company would, at the time of declaration of such Restricted Payment Payment, and (ii) immediately after giving pro forma effect thereto as to the making of such Restricted Payment, the sum of all Restricted Payments made subsequent to December 31, 1995 would not exceed the sum of (1) $10,000,000, (2) 100% of Cash Flow accumulated subsequent to December 31, 1995, and (3) the net proceeds to the Company since December 31, 1995 from the issuance of any shares of its capital stock or any warrants, options or other rights with respect thereto; PROVIDED FURTHER that the Company may make a Restricted Payment if a Default (but not an Event of Default) shall have occurred and be continuing if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant was declared but not yet paid prior to the Cash Flow Coverage Ratio test set forth in the first paragraph of Section 4.09 hereof; and (c) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Subsidiaries after the date of the Indenture (excluding Restricted Payments permitted by clauses (ii) and (iii) of the next succeeding paragraph), is less than the sum of (i) 50% of the Consolidated Net Income of the Company for the period (taken as one accounting period) from the beginning of the first fiscal quarter commencing after the date of the Indenture to the end of the Company's most recently ended fiscal quarter for which internal financial statements are available at the time occurrence of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% Default and the making of such deficit), plus (ii) 100% of the aggregate net cash proceeds received by the Company from the issue or sale since the date of the Indenture of Equity Interests of the Company or MSC (other than Disqualified Stock) or of Disqualified Stock or debt securities of the Company or MSC that have been converted into such Equity Interests (other than Equity Interests (or Disqualified Stock or convertible debt securities) sold to a Subsidiary of the Company and other than Disqualified Stock or convertible debt securities that have been converted into Disqualified Stock), plus (iii) to the extent that any Restricted Investment that was made after the date of the Indenture is sold for cash or otherwise liquidated or repaid for cash, the lesser of (A) the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any) and (B) the initial amount of such Restricted Investment plus (iv) if any Unrestricted Subsidiary (A) is redesignated as a Restricted Subsidiary, the fair market value of such redesignated Subsidiary (as determined in good faith by the Board of Directors) as of the date of its redesignation or (B) pays any cash dividends or cash distributions to the Company or any of its Restricted Subsidiaries, 50% of any such cash dividends or cash distributions made after the date of the Indenture. The foregoing provisions 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 the Indenture; (ii) the redemption, repurchase, retirement, defeasance or other acquisition of any PARI PASSU or subordinated Indebtedness or Equity Interests of the Company or MSC in exchange for, or out of the net cash proceeds of the substantially concurrent sale or issuance (other than to a Restricted Subsidiary of the Company) of, other Equity Interests of the Company or MSC (other than any Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such redemption, repurchase, retirement, defeasance or other acquisition shall be excluded from clause (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 Equity Interests on a pro rata basis; (v) any repurchase of Equity Interests of the Company or MSC from present and former employees and directors of the Company or its Subsidiaries or MSC in an aggregate amount not to exceed $5 million; (vi) Permitted Investments; or (vii) other Restricted Payments in an aggregate amount not to exceed $5 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 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 covenant. 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 (as determined in good faith by the Board of Directors). 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 under clause (ii) of an Unrestricted Subsidiary. this Section 5.16(a). (b) The amount provisions of all Restricted Payments (other than cashSection 5.16(a) 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 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, such determination to be based upon an opinion or appraisal issued by an accounting, appraisal or investment banking firm of national standing if such fair market value exceeds $10.0 million. Not later than the date of making any Restricted Paymentcontrary notwithstanding, the Company may declare and make a Restricted Payment if a Default or Event of Default shall deliver to have occurred and be continuing at the Trustee an Officers' Certificate stating time that such Restricted Payment was declared, if (i) the declaration and payment of such Restricted Payment is permitted required in order for the Company to continue to qualify as a REIT under the Code, and setting forth (ii) the basis upon which Default or Event of Default existing at the calculations required by time of such declaration did not result from (1) a breach of this covenant were computedSection 5.16, together with (2) a copy failure to make any payment or prepayment of principal or interest on the Notes (including failure to pay the Make-Whole Premium pursuant to Section 2, when due), or (3) the occurrence of any fairness opinion event specified in Section 6.1(a) or appraisal required by the Indenture(g).

Restricted Payments. From and after the date hereof the Company (a) Ventas, Inc. shall not, and shall not permit any of its Subsidiaries Restricted Subsidiary to, directly or indirectly: : (i1) declare or pay any dividend or make any other payment or distribution on account of the CompanyVentas, Inc.'s or any of its Restricted Subsidiaries' Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving Ventas, Inc. or any of its Restricted Subsidiaries) or to the direct or indirect holders of the CompanyVentas, Inc.'s or any of its Restricted Subsidiaries' Equity Interests in their capacity as such (other than dividends or distributions payable (a) in Equity Interests (other than Disqualified Stock) of the CompanyVentas, Inc. or (b) to Ventas, Inc. or any of its Restricted Subsidiaries); ; (ii2) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Partnership) any Equity Interests of (a) the Company Partnership or any direct or indirect parent of the Company; Partnership or (iiib) any Restricted Subsidiary, including a Permitted Joint Venture (in either case other than Equity Interests owned by Ventas, Inc. or any of its Restricted Subsidiaries); (3) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness that is PARI PASSU with or subordinated to the Notes (other than the Notes and the 2003 Notes)Subordinated Debt, except a payment of interest or principal at Stated Maturitythe stated maturity thereof; or or (iv4) make any Restricted Investment (all such payments and other actions set forth in these clauses (i1) through (iv4) above being collectively referred to as "RESTRICTED PAYMENTSRestricted Payments"), unless, at the time of and after giving effect to such Restricted Payment: (a1) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof; andcontinuing; (b2) the Company wouldVentas, at the time of such Inc. and its Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to Subsidiaries could incur at least $1.00 of additional Indebtedness pursuant to Debt (other than Permitted Debt) under the Cash Flow Coverage Ratio test set forth in terms of the first paragraph of Section 4.09 hereofIndenture; and (c3) such Restricted Payment, together with the aggregate amount sum of all other Restricted Payments made after the date hereof, excluding Restricted Payments made pursuant to the following paragraph, shall not exceed the sum of: (A) 95% of our aggregate cumulative Funds from Operations accrued on a cumulative basis from the date of the beginning of the fiscal quarter which includes the date of the Indenture; (B) the aggregate proceeds or values received after the date of the Indenture from the issuance or sale of Ventas, Inc.'s or the Partnership's Equity Interests (other than Disqualified Stock and Equity Interests sold to a Subsidiary of Ventas, Inc.), net of underwriting discounts, commissions, legal fees and similar offering expenses; (C) any dividends or other distributions received by the Company and Ventas, Inc. or any of its Restricted Subsidiaries after the date of the Indenture (excluding Restricted Payments permitted by clauses (ii) and (iii) from an Unrestricted Subsidiary of the next succeeding paragraph)Ventas, is less than the sum of (i) 50% of the Consolidated Net Income of the Company for the period (taken as one accounting period) from the beginning of the first fiscal quarter commencing after the date of the Indenture Inc., to the end extent that such dividends were not otherwise included in Earnings From Operations of the Company's most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (orVentas, if such Consolidated Net Income Inc. for such period is a deficitperiod, less 100% of such deficit), plus plus (ii) 100% of the aggregate net cash proceeds received by the Company from the issue or sale since the date of the Indenture of Equity Interests of the Company or MSC (other than Disqualified Stock) or of Disqualified Stock or debt securities of the Company or MSC that have been converted into such Equity Interests (other than Equity Interests (or Disqualified Stock or convertible debt securities) sold to a Subsidiary of the Company and other than Disqualified Stock or convertible debt securities that have been converted into Disqualified Stock), plus (iiiD) to the extent that any Restricted Investment that was made after the date of the Indenture is sold for cash or otherwise liquidated or repaid for cash, the lesser of (A) the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any) and (B) the initial amount of such Restricted Investment plus (iv) if any Unrestricted Subsidiary (A) of Ventas, Inc. is redesignated as a Restricted Subsidiary, the fair market value of such redesignated Subsidiary (as determined in good faith by the Board of Directors) as of the date of its redesignation or (B) pays any cash dividends or cash distributions to the Company or any of its Restricted Subsidiaries, 50% of any such cash dividends or cash distributions made after the date of the Indenture. The foregoing provisions shall not prohibit , the lesser of (i) the payment Fair Market Value of any dividend within 60 days after Ventas, Inc.'s Investment in such Subsidiary as of the date of declaration thereofsuch redesignation or (ii) such Fair Market Value as of the date on which such Subsidiary was originally designated as an Unrestricted Subsidiary. (b) Notwithstanding the foregoing, the limitations on Restricted Payments described in Section 4.07(a) shall not apply to the following: (1) any distribution or other action which is necessary to maintain Ventas Inc.'s status as a REIT under the Code, if at said date the aggregate principal amount of declaration such payment would have complied outstanding Debt of Ventas, Inc. and its Restricted Subsidiaries on a consolidated basis determined in accordance with GAAP is less than 60% of Adjusted Total Assets; (2) any distribution payable in Ventas, Inc.'s Equity Interests (other than Disqualified Stock); (3) so long as the provisions Partnership is a partnership and no Default or Event of Default has occurred and is continuing under the Indenture, distributions to partners of the Indenture; Partnership in an amount, with respect to any period after April 1, 2002, not to exceed the Tax Amount for such period; (ii4) the redemption, repurchase, retirement, defeasance repurchase or other acquisition or retirement of any PARI PASSU or subordinated Indebtedness or Equity Interests of the Company or MSC in exchange for, or out of the net cash proceeds of the a substantially concurrent issue and sale of, Capital Stock to any person (other than to a Subsidiary of Ventas, Inc.); provided, however, that such net cash proceeds are excluded from Section 4.07(a)(3)(B); (5) any redemption, repurchase or issuance other acquisition or retirement of Subordinated Debt in exchange for, or out of the net cash proceeds of (a) a substantially concurrent issue and sale of, Capital Stock to any person (other than to a Restricted Subsidiary of the Company) ofVentas, other Equity Interests of the Company or MSC (other than any Disqualified StockInc.); provided provided, however, 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 Section 4.07(b)(4) and not used under Section 4.07(a)(3)(B) or (cb) Permitted Refinancing Debt; (ii6) repurchases of Capital Stock deemed to occur upon the exercise of stock options if such Capital Stock represents a portion of the preceding paragraph; exercise price thereof and repurchases of Capital Stock deemed to occur upon the withholding of a portion of the Capital Stock granted or awarded to an employee to pay for the taxes payable by such employee upon such grant or award; (iii7) pro rata dividends and other distributions on the defeasanceCapital Stock of any Restricted Subsidiary by such Restricted Subsidiary to a Person other than Ventas, Inc. or any of its Restricted Subsidiaries; (8) the 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 retirement of any dividend by a Capital Stock of Ventas, Inc. or any Restricted Subsidiary from any director, officer or employee of Ventas, Inc. or any Restricted Subsidiary, or from such person's estate, (a) pursuant to any agreement with such director, officer or employee or (b) upon the Company to the holders death or termination of its Equity Interests on a pro rata basis; (v) any repurchase directorship or employment of Equity Interests of the Company or MSC from present and former employees and directors of the Company or its Subsidiaries or MSC such person, in an aggregate amount under this clause (8) not to exceed $5 million; 1.5 million in any twelve-month period; (vi9) Permitted Investments; the forgiveness of loans to current or (vii) other Restricted Payments former officers or directors of Ventas, Inc. in an aggregate principal amount not to exceed $5 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 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 covenant. 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 (as determined in good faith by the Board of Directors). 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 amount of all Restricted Payments (other than cash) shall be the fair market value on since the date of the Restricted Payment Indenture of the asset(s) or securities proposed up to be transferred or issued by the Company or such 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, such determination to be based upon an opinion or appraisal issued by an accounting, appraisal or investment banking firm of national standing if such fair market value exceeds $10.0 million. Not later than 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 covenant were computed, together with a copy of any fairness opinion or appraisal required by the Indenture.; and

Restricted Payments. From and after the date hereof the The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly: : (i1) declare or pay any dividend or make any other payment or distribution on account of the Company's or any of its Restricted Subsidiaries' Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company or any of its Restricted Subsidiaries) or to the direct or indirect holders of the Company's or any of its Restricted Subsidiaries' Equity Interests in their capacity as such (other than dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company or to the Company or a Restricted Subsidiary of the Company); ; (ii2) purchase, redeem or otherwise acquire or retire for value (including without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or any direct or indirect parent of the Company; Company (iiiother than any such Equity Interests owned by the Company or any of its Restricted Subsidiaries); (3) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness that is PARI PASSU with or subordinated to the Notes (other than the Notes and the 2003 Notes), except a payment of interest or principal at Stated Maturity; or or (iv4) make any Restricted Investment Investment, (all such payments and other actions set forth in these clauses (i1) through (iv4) above being collectively referred to as "RESTRICTED PAYMENTSRestricted Payments"), unless, at the time of and after giving effect to such Restricted Payment: (a1) no Default or Event of Default shall have has occurred and be is continuing or would occur as a consequence thereofof the Restricted Payment; and (b2) the Company would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, would have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Debt to Adjusted Consolidated Cash Flow Coverage Ratio test set forth in the first paragraph of Section 4.09 hereof; provided that the Company and its Restricted Subsidiaries shall not be required to comply with this clause (2) in order to make any Restricted Investment; and (c3) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after the date of the Indenture hereof (excluding Restricted Payments permitted by clauses (ii2), (3) and (iii4) of the next succeeding paragraphparagraph of exceptions below), is less than the sum of sum, without duplication, of: (ia) 50100% of the Consolidated Net Income Cash Flow of the Company for the period (taken as one accounting period) from the beginning of the first fiscal quarter commencing after the date of the during which this Indenture is executed to the end of the Company's most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such the Consolidated Net Income Cash Flow for such period is a deficit, less 100% of such the deficit), plus less 1.75 times the Consolidated Interest Expense of the Company since the beginning of the fiscal quarter during which this Indenture is executed; plus (iib) 100% of the aggregate net cash proceeds received by the Company since the beginning of the fiscal quarter during which this Indenture is executed as a contribution to its common equity capital or from the issue or sale since the date of the Indenture of Equity Interests of the Company or MSC (other than Disqualified StockStock and except to the extent such net cash proceeds are used to incur new Indebtedness outstanding pursuant to clause (11) of the second paragraph of Section 4.09 hereof) or from the issue or sale of Disqualified Stock or debt securities of the Company or MSC that have been converted into such Equity Interests (other than Equity Interests (or Disqualified Stock or convertible debt securities) sold to a Subsidiary of the Company and other than Disqualified Stock or convertible debt securities that have been converted into Disqualified Stock), plus ; plus (iiic) to the extent that any Restricted Investment that was made after the date of the Indenture hereof is sold for cash or otherwise liquidated or repaid for cash, the lesser of of: (A) the cash return of capital with respect to such the Restricted Investment (less the cost of disposition, if any) and ), and (B) the initial amount of such the Restricted Investment plus Investment; plus (ivd) if to the extent that any Unrestricted Subsidiary of the Company and all of its Subsidiaries are designated as Restricted Subsidiaries after the date hereof, the lesser of: (A) is redesignated as a Restricted Subsidiary, the fair market value of the Company's Investments in such redesignated Subsidiary (as determined in good faith by the Board of Directors) Subsidiaries as of the date of its redesignation or such designation; or (B) pays any cash dividends or cash distributions to the Company or any of its Restricted Subsidiaries, 50% of any such cash dividends or cash distributions made after the date of the Indenture. The foregoing provisions 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 the Indenture; (ii) the redemption, repurchase, retirement, defeasance or other acquisition of any PARI PASSU or subordinated Indebtedness or Equity Interests of the Company or MSC in exchange for, or out of the net cash proceeds of the substantially concurrent sale or issuance (other than to a Restricted Subsidiary of the Company) sum of, other Equity Interests of the Company or MSC (other than any Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such redemption, repurchase, retirement, defeasance or other acquisition shall be excluded from clause (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 Equity Interests on a pro rata basis; (v) any repurchase of Equity Interests of the Company or MSC from present and former employees and directors of the Company or its Subsidiaries or MSC in an aggregate amount not to exceed $5 million; (vi) Permitted Investments; or (vii) other Restricted Payments in an aggregate amount not to exceed $5 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 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 covenant. 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 (as determined in good faith by the Board of Directors). 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 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 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, such determination to be based upon an opinion or appraisal issued by an accounting, appraisal or investment banking firm of national standing if such fair market value exceeds $10.0 million. Not later than 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 covenant were computed, together with a copy of any fairness opinion or appraisal required by the Indenture.:

Restricted Payments. From and after the date hereof the The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly: (i) declare or pay any dividend or make any other payment or distribution on account of the Company's or any of its Restricted Subsidiaries' Subsidiary's Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company or any Restricted Subsidiary) or to the any direct or indirect holders of the Company's or any of its Restricted Subsidiaries' Equity Interests in their capacity as such (other than dividends or distributions (a) payable in Equity Interests (other than Disqualified Stock) of the Company or (b) to the Company or any Wholly Owned Restricted Subsidiary of the Company); (ii) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or any of its Restricted Subsidiaries or any direct or indirect parent of the CompanyCompany (other than any such Equity Interests owned by the Company or any Restricted Subsidiary of the Company or Permitted Investments); (iii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness of the Company or any Restricted Subsidiary that is PARI PASSU with or subordinated to the Notes (other than or any guarantee of the Notes and the 2003 Notes), except a payment of interest or principal at Stated Maturity; or (iv) make any Restricted Investment (all such payments and other actions set forth in clauses (i) through (iv) above being collectively referred to as "RESTRICTED PAYMENTS"), unless, at the time of and after giving effect to such Restricted Payment:collectively (a) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof; and (b) the Company would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Debt to Cash Flow Coverage Ratio test set forth in the first paragraph of Section 4.09 hereof; , and (c) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after the date of the this Indenture (excluding Restricted Payments permitted by clauses (ii), (iii) and (iiiiv) of the next succeeding paragraph), is less than the sum sum, without duplication, of (i) 50% of an amount equal to the Consolidated Net Income Cash Flow of the Company for the period (taken as one accounting period) from the beginning of the first fiscal quarter commencing after the date of the this Indenture to the end of the Company's most recently ended full fiscal quarter for which internal financial statements are available at have been filed with the time SEC (the "Basket Period") less the product of such Restricted Payment (or, if such 1.4 times the Consolidated Net Income Interest Expense of the Company for such period is a deficit, less 100% of such deficitthe Basket Period), plus (ii) 100% of the aggregate net cash proceeds received by the Company as a contribution to its common equity capital or from the issue or sale since the date of the this Indenture of Equity Interests of the Company or MSC (other than Disqualified Stock) or from the issue or sale of Disqualified Stock or debt securities of the Company or MSC that have been converted into such Equity Interests (other than Equity Interests (or Disqualified Stock or convertible debt securities) sold to a Subsidiary of the Company and other than Disqualified Stock or convertible debt securities that have been converted into Disqualified Stock), plus (iiiii) to the extent that any Restricted Investment that was made after the date of the this Indenture is sold for cash or otherwise liquidated or repaid for cash, the lesser of (A) the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any) and (B) the initial amount of such Restricted Investment plus (iv) if any Unrestricted Subsidiary (A) is redesignated as a Restricted Subsidiary, the fair market value of such redesignated Subsidiary (as determined in good faith by the Board of Directors) as of the date of its redesignation or (B) pays any cash dividends or cash distributions to the Company or any of its Restricted Subsidiaries, 50% of any such cash dividends or cash distributions made after the date of the IndentureInvestment. The foregoing provisions shall 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 such payment would have complied with the provisions of the this Indenture; (ii) the redemption, repurchase, retirement, defeasance or other acquisition of any PARI PASSU Equity Interests of Company or subordinated Indebtedness or Equity Interests of the Company or MSC any Guarantor in exchange for, or out of the net cash proceeds of the substantially concurrent sale or issuance (other than to a Restricted Subsidiary of the Company) of, other Equity Interests of the Company or MSC (other than any Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such redemption, repurchase, retirement, defeasance or other acquisition shall be excluded from clause (c) (iic)(ii) of the preceding paragraph; and, provided further, that no Default or Event of Default shall have occurred and be continuing immediately after such transaction; (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; provided that no Default or Event of Default shall have occurred and be continuing immediately after such transaction; (iv) the payment of any dividend by a Restricted Subsidiary of the Company to the holders of its Equity Interests on a pro rata basis; (v) any repurchase of Equity Interests of the Company or MSC from present and former employees and directors of the Company or its Subsidiaries or MSC in an aggregate amount not to exceed $5 million; (vi) Permitted Investments; or (vii) other Restricted Payments in an aggregate amount not to exceed $5 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 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 covenant. 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 (as determined in good faith by the Board of Directors). 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 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 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, such determination to be based upon an opinion or appraisal issued by an accounting, appraisal or investment banking firm of national standing if such fair market value exceeds $10.0 million. Not later than 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 covenant were computed, together with a copy of any fairness opinion or appraisal required by the Indenture.;

Restricted Payments. From and after the date hereof the (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiaries to, directly or indirectly: : (i1) declare or pay any dividend or make any other payment or distribution on account of the Company's or any of its Restricted Subsidiaries' Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company) or to the direct or indirect holders of the Company's or any of its Restricted Subsidiaries' Equity Interests in their capacity as such (other than dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company); ; (ii2) purchase, redeem or otherwise acquire or retire for value (including without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or any direct or indirect parent of the Company; ; (iii3) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness that is PARI PASSU with or subordinated to the Notes (other than or the Notes and the 2003 Notes)Note Guarantees, except a payment of interest or principal at the Stated MaturityMaturity of the Indebtedness; or or (iv4) make any Restricted Investment (all such payments and other actions set forth in these clauses (i1) through (iv4) above being collectively referred to as "RESTRICTED PAYMENTS"), unless, at the time of and after giving effect to such Restricted Payment: (a1) no Default or Event of Default shall have has occurred and be is continuing or would occur as a consequence thereofof such Restricted Payment; and (b2) the Company would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Cash Flow Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 4.09 hereof4.09; and (c3) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Subsidiaries after the date of the this Indenture (excluding Restricted Payments permitted by clauses (ii2) and (iii3) of the next succeeding paragraphparagraph (b) below), is less than the sum of sum, without duplication of: 44 (iA) 50% of the Consolidated Net Income of the Company for the period (taken as one accounting period) from the beginning of the first fiscal quarter commencing after the date of the this Indenture to the end of the Company's most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit), plus PLUS (iiB) 100% of the aggregate net cash proceeds received by the Company since the date of this Indenture as a contribution to its common equity capital or from the issue or sale since the date of the Indenture of Equity Interests of the Company or MSC (other than Disqualified Stock) or from the issue or sale of convertible or exchangeable Disqualified Stock or convertible or exchangeable debt securities of the Company or MSC that have been converted into or exchanged for such Equity Interests (other than Equity Interests (or Disqualified Stock or convertible debt securities) sold to a Subsidiary of the Company and other than Disqualified Stock or convertible debt securities that have been converted into Disqualified Stock), plus PLUS (iiiC) to the extent that any Restricted Investment that was made after the date of the this Indenture is sold for cash or otherwise liquidated or repaid for cash, the lesser of (Ai) the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any) and (Bii) the initial amount of such Restricted Investment plus Investment, PLUS (ivD) if any Unrestricted Subsidiary (Ai) is redesignated as a Restricted Subsidiary, the fair market value of such redesignated Subsidiary (as determined in good faith by the Board of DirectorsDirectors of the Company) as of the date of its redesignation or (Bii) pays any cash dividends or cash distributions contributions to the Company or any of its Restricted Subsidiaries, 50% of any such cash dividends or cash distributions made after the date of this Indenture. (b) So long as no Default has occurred and is continuing or would be caused thereby, the Indenture. The foregoing provisions shall of Section 4.07(a) will not prohibit prohibit: (i1) the payment of any dividend within 60 days after the date of declaration thereofof the dividend, if at said the date of declaration such the dividend payment would have complied with the provisions of the this Indenture; ; (ii2) the redemption, repurchase, retirement, defeasance or other acquisition of any PARI PASSU or subordinated Indebtedness of the Company or of any Equity Interests of the Company or MSC in exchange for, or out of the net cash proceeds of the substantially concurrent sale or issuance (other than to a Restricted Subsidiary of the Company) of, other Equity Interests of the Company or MSC (other than any Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such redemption, repurchase, retirement, defeasance or other acquisition shall be excluded from clause ; (c) (ii) of the preceding paragraph; (iii3) 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; ; (iv4) the payment of any dividend by a Restricted Subsidiary of the Company to the holders of its Equity Interests on a pro rata PRO RATA basis; ; (v5) Investments in any repurchase of Equity Interests of Person (other than the Company or MSC from present and former employees and directors of the Company or its Subsidiaries or MSC a Wholly Owned Restricted Subsidiary) engaged in a Permitted Business in an aggregate amount taken together with all other 45 Investments made pursuant to this clause 5 that are at that time outstanding not to exceed $5 5.0 million; (6) other Investments in Unrestricted Subsidiaries having an aggregate fair market value, taken together with all other Investments made pursuant to this clause 6 that are at that time outstanding, not to exceed $2.0 million; (7) the designation of certain of the Company's Subsidiaries as Unrestricted Subsidiaries immediately prior to the date of this Indenture; (8) the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of AP Holdings, Inc. or the Company or any Subsidiary of the Company held by any member of AP Holdings, Inc, or the Company's (or any of their Restricted Subsidiaries') management pursuant to any management equity subscription agreement or stock option agreement or in connection with the termination of employment of any employees or management of AP Holdings, Inc. or the Company or their Subsidiaries; PROVIDED, that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall not exceed $2.0 million in the aggregate plus the aggregate cash proceeds received by AP Holdings, Inc. or the Company after the date of this Indenture from any reissuance of Equity Interests by AP Holdings, Inc. or the Company to members of management of AP Holdings, Inc. or the Company and their Restricted Subsidiaries; and (vi) Permitted Investments; or (vii9) other Restricted Payments in an aggregate amount not to exceed $5 5.0 million. Notwithstanding anything to the contrary, the redemption, repurchase or purchase of any equity interest in the Company or any of its Restricted Subsidiaries pursuant to a put right, right of redemption or right of repurchase will, in any such case, for the purposes of this Section 4.07, be treated as a payment or distribution on account of an Equity Interest and will not be treated as a payment on indebtedness, no matter what the accounting treatment of said transaction may be. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if such that designation would not cause a Default; PROVIDED, that in no event will the business currently operated by any Guarantor be transferred to or held by an Unrestricted Subsidiary. For purposes If a Restricted Subsidiary is designated as an Unrestricted Subsidiary, the aggregate fair market value of making such determination, all outstanding Investments owned by the The Company and its Restricted Subsidiaries (except to the extent repaid in cash) in the Subsidiary so properly designated will be deemed to be Restricted Payments at an Investment made as of the time of such the designation and will reduce the amount available for Restricted Payments under the first paragraph of this covenant. 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 (Section 4.07(a) or Permitted Investments, as determined in good faith by the Board of Directors)Company. Such That designation shall will only be permitted if such Restricted Payment the Investment would be permitted at such that time and if such the 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 the redesignation would not cause a Default. The amount of all Restricted Payments (other than cash) shall will 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 Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall will be determined in good faith by the Board of Directors of the Company whose resolution with respect thereto shall be delivered to the Trustee, such Trustee in an Officers' Certificate signed by the Secretary of the Company. The Board of Directors' determination to must be based upon an opinion or appraisal issued by an accounting, appraisal or investment banking firm of national standing if such the fair market value exceeds $10.0 million. Not later than the date of making any Restricted Payment, the Company shall will 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 covenant Section 4.07 were computed, together with a copy of any fairness opinion or appraisal required by the this Indenture.

Restricted Payments. From and after the date hereof the The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly: : (i1) declare or pay any dividend or make any other payment or distribution on account of the Company's or any of its Restricted Subsidiaries' Equity Interests or to the direct or indirect holders of the Company's or any of its Restricted Subsidiaries' Equity Interests in their capacity as such (other than dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the CompanyCompany or such Restricted Subsidiary or dividends or distributions payable to the Company or any Restricted Subsidiary); ; (ii2) purchase, redeem or otherwise acquire or retire for value any Equity Interests of the Company or any direct Restricted Subsidiary or indirect parent other Affiliate of the Company; Company (iiiother than any such Equity Interests owned by the Company or any Restricted Subsidiary); (3) make any payment on or with respect to, or purchase, redeem, defease redeem or otherwise acquire or retire prior to scheduled maturity for value any Indebtedness that is PARI PASSU with or subordinated in right of payment to the Notes Notes; or (other than the Notes and the 2003 Notes), except a payment of interest or principal at Stated Maturity; or (iv4) make any Restricted Investment other than a Permitted Investment (all such payments and other actions set forth in clauses (i1) through (iv4) above being collectively referred to as "RESTRICTED PAYMENTS"), ; unless, at the time of and after giving effect to such Restricted Payment: (ai) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof; and (bii) the Company would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter periodthereto, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Cash Flow Coverage Ratio test set forth in the first paragraph of Section 4.09 hereof4.9 of the Indenture; and (ciii) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after the date of the 1996 Indenture (excluding Restricted Payments permitted by clauses (ii) and (iii) of the next succeeding paragraph), Date is less than (x) the sum of (i) 50% cumulative EBITDA of the Company, minus 1.75 times the cumulative Consolidated Net Income Interest Expense of the Company Company, in each case for the period (taken as one accounting period) from the beginning of the first fiscal quarter commencing after the date of the Indenture June 30, 1996, to the end of the Company's most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit)Payment, plus (iiy) 100% of the aggregate net cash proceeds Equity Proceeds received by the Company from the issue issuance or sale since the date of the 1996 Indenture Date of Equity Interests of the Company or MSC (other than Disqualified Stock) or of Disqualified Stock or debt securities of the Company or MSC that have been converted into such Equity Interests (other than Equity Interests (or Disqualified Stock or convertible debt securities) securities sold to a Restricted Subsidiary of the Company and other than Disqualified Stock or convertible debt securities that have been converted into Disqualified Stock), plus (iiiz) to the extent that any Restricted Investment that was made after the date of the Indenture is sold for cash or otherwise liquidated or repaid for cash, the lesser of (A) the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any) and (B) the initial amount of such Restricted Investment plus (iv) if any Unrestricted Subsidiary (A) is redesignated as a Restricted Subsidiary, the fair market value of such redesignated Subsidiary (as determined in good faith by the Board of Directors) as of the date of its redesignation or (B) pays any cash dividends or cash distributions to the Company or any of its Restricted Subsidiaries, 50% of any such cash dividends or cash distributions made after the date of the Indenture$2.0 million. The foregoing provisions shall will not prohibit 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 the Indenture; ; (ii2) the redemption, repurchase, retirement, defeasance retirement or other acquisition or retirement for value of any PARI PASSU or subordinated Indebtedness or Equity Interests of the Company or MSC in exchange for, or out of with the net cash proceeds of of, the substantially concurrent sale or issuance (other than to a Restricted Subsidiary of the Company) of, of other Equity Interests of the Company or MSC (other than any Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such redemption, repurchase, retirement, defeasance or other acquisition shall be excluded from clause ; (c) (ii) of the preceding paragraph; (iii3) the defeasance, redemption, repurchase repurchase, retirement or other acquisition or retirement for value of PARI PASSU Indebtedness that is subordinated in right of payment to the Notes in exchange for, or subordinated Indebtedness with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness; of, a substantially concurrent issuance and sale (iv) the payment of any dividend by other than to a Restricted Subsidiary of the Company to the holders of its Equity Interests on a pro rata basis; (vCompany) any repurchase of Equity Interests of the Company (other than Disqualified Stock); (4) the defeasance, redemption, repurchase, retirement or MSC from present other acquisition or retirement for value of Indebtedness that is subordinated in right of payment to the 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) of Refinancing Indebtedness; (5) the repurchase of any Indebtedness subordinated in right of payment to the Notes at a purchase price not greater than 101% of the principal amount of such Indebtedness in the event of a Change of Control in accordance with provisions similar to the covenant set forth in Section 4.18 of the Indenture, 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 (6) additional payments to current or former employees and or directors of the Company for repurchases of stock, stock options or other equity interests, provided that the aggregate amount of all such payments under this clause (6) does not exceed $0.5 million in any year and $2.0 million in the aggregate. The Restricted Payments described in clauses (2), (3), (5) and (6) of the immediately preceding paragraph shall be Restricted Payments that shall be permitted to be taken in accordance with such paragraph but shall 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 (1) and (4) of the immediately preceding paragraph shall be Restricted Payments that shall be permitted to be taken in accordance with such paragraph and shall 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 shall 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 or MSC 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 longer be counted as a Restricted Payment for purposes of calculating the aggregate amount not of Restricted Payments. For the purpose of making any calculations under the Indenture: (1) an Investment shall 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 shall exclude the fair market value of the net assets of any Unrestricted Subsidiary that is designated as a Restricted Subsidiary; (2) any property transferred to exceed $5 millionor from an Unrestricted Subsidiary shall be valued at fair market value at the time of 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 (vi3) Permitted Investments; or (vii) subject to the foregoing, the amount of any Restricted Payment, if other Restricted Payments in an aggregate amount not to exceed $5 millionthan cash, shall be determined by the Board of Directors, whose good faith determination shall be conclusive. The Board of Directors may designate any a Restricted Subsidiary to be an Unrestricted Subsidiary if in compliance with the Section 4.15 of the Indenture. 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 made at the time of such designation and will reduce the amount available for Restricted Payments under the first paragraph of this covenant. 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 (as determined in good faith by the Board of Directors). Such designation shall will only be permitted if such Restricted Payment would be permitted at such time and if such Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. The amount of all Restricted Payments . (other than cashb) 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 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, such determination to be based upon an opinion or appraisal issued by an accounting, appraisal or investment banking firm of national standing if such fair market value exceeds $10.0 million. Not later than 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 covenant were computed, together with a copy of any fairness opinion or appraisal required by the IndentureINCURRENCE OF INDEBTEDNESS AND ISSUANCE OF PREFERRED STOCK.

Restricted Payments. From and after the date hereof the (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiaries to, directly or indirectly: : (i1) declare or pay any dividend or make any other payment or distribution on account of the Company's or any of its Restricted Subsidiaries' Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company or any of its Restricted Subsidiaries) or to the direct or indirect holders of the Company's or any of its Restricted Subsidiaries' Equity Interests in their capacity as such (other than dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the CompanyCompany and other than dividends or distributions payable to the Company or any Restricted Subsidiary); ; (ii2) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or any direct or indirect parent of the Company held by a Person other than the Company or a Restricted Subsidiary of the Company; ; (iii3) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value value, any Indebtedness that is PARI PASSU with or subordinated by its terms in right of payment to the Notes (other than the Notes and the 2003 Notes), except a payment payments of interest or principal at the Stated MaturityMaturity thereof; or or (iv4) make any Restricted Investment (all such payments and other actions set forth in these clauses (i1) through (iv4) above being collectively referred to as "RESTRICTED PAYMENTSRestricted Payments"), unless, at the time of and after giving effect to such Restricted Payment: (a5) no Default or Event of Default shall have has occurred and be is continuing or would occur as a consequence thereof; andof such Restricted Payment; (b6) the Company would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-four quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to under the Cash Flow Consolidated Coverage Ratio test set forth in the first paragraph of Section 4.09 hereofTest; and (c7) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after the date of the Indenture Issue Date (excluding Restricted Payments permitted by clauses (ii2), (3), (4), (5), (6), (7), (8), (9), (10), (11) (other than payments with respect to Equity Interests of the Company or any of its Restricted Subsidiaries), (12) and (iii13) of the next succeeding paragraphSection 3.6(b)), is less than the sum of sum, without duplication, of: (iA) 50% of the aggregate Consolidated Net Income of the Company (or, in the event such Consolidated Net Income shall be a deficit, minus 100% of such deficit) accrued for the period (beginning on the Issue Date and ending on the last day of the Company's most recent fiscal quarter for which financial information is available to the Company ending prior to the date of such proposed Restricted Payment, taken as one accounting period) from the beginning of the first fiscal quarter commencing after the date of the Indenture to the end of the Company's most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment , plus (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit), plus (iiB) 100% of the aggregate net cash proceeds received by the Company since the Issue Date (x) from the issue or sale since the date of the Indenture of Equity Interests of the Company or MSC (other than Disqualified Stock) or of Disqualified Stock or debt or other securities of the Company or MSC that have been converted into or exchanged for such Equity Interests (other than (i) Equity Interests (or Disqualified Stock or convertible or exchangeable debt or other securities) sold to a Subsidiary of the Company or any employee stock ownership plan or other trust established by the Company or any of its Subsidiaries for the benefit of its employees to the extent that the purchase by such plan or trust is financed by Indebtedness of such plan or trust owed to the Company or any of its Subsidiaries or Indebtedness guaranteed by the Company or any of its Subsidiaries, and other than (ii) Disqualified Stock or convertible or exchangeable debt or other securities that have been converted into or exchanged for Disqualified Stock), plus and (iiiy) as capital contributions from its shareholders, plus (C) to the extent that any Restricted Investment that was made after the date of the Indenture is sold for cash or otherwise liquidated or repaid for cash, the lesser of (A) the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any) and (B) the initial amount of such Restricted Investment plus (iv) if any Unrestricted Subsidiary (A) is redesignated as a Restricted SubsidiarySubsidiary after the Issue Date, the fair market value of such redesignated Subsidiary (Subsidiary, as determined in good faith by the Board of Directors) , as of the date of such redesignation, plus (D) the sum of (i) the aggregate amount in cash returned to the Company or any of its redesignation Restricted Subsidiaries and (ii) the aggregate principal amount of Indebtedness of the Company or any of its Restricted Subsidiaries cancelled, in each case with respect to Restricted Investments made after the Issue Date whether through interest payments, principal payments, dividends, or other distributions or the forgiveness or cancellation of Indebtedness, plus (BE) pays the net cash proceeds received by the Company or any cash dividends of its Restricted Subsidiaries from the disposition or cash distributions sale (other than to a Restricted Subsidiary), or liquidation, retirement or redemption of all or any portion of Restricted Investments made after the Issue Date, plus (F) the net reduction in Investments in Unrestricted Subsidiaries resulting from payments of dividends, repayments of the principal of loans or advances or other transfers of assets from Unrestricted Subsidiaries to the Company or any of its Restricted Subsidiaries, 50% plus (G) in the event that the Company or any of its Restricted Subsidiaries makes any Investment in a Person that, as a result of or in connection with such cash dividends or cash distributions made after the date Restricted Investment, becomes a Restricted Subsidiary, an amount equal to such portion of the Indenture. Company's or any of its Restricted Subsidiaries' existing Investments in such Person that was previously treated as a Restricted Payment. (b) The foregoing provisions shall of Section 3.6(a) will not prohibit prohibit: (i1) the payment of any dividend within 60 days after the date of declaration thereofof the dividend, if at said the date of declaration such the dividend payment would have complied with the provisions of the this Indenture; provided, however, that any such dividend will be included in the calculation of the amount of Restricted Payments (iiwithout duplication for declaration); (2) the making of any Restricted Investment or the payment on or with respect to or, the redemption, repurchase, retirement, defeasance or other acquisition of any PARI PASSU or subordinated Indebtedness of the Company or any of its Restricted Subsidiaries or of any Equity Interests of the Company or MSC in exchange for, or out of the net cash proceeds of the substantially concurrent sale or issuance of, Equity Interests of the Company (other than (i) Disqualified Stock and (ii) Equity Interests issued or sold to a Restricted Subsidiary of the Company) of, Company or to any employee stock ownership plan or other Equity Interests of trust established by the Company or MSC (other than any Disqualified Stock)of its Subsidiaries for the benefit of its employees to the extent that the purchase by such plan or trust is financed by Indebtedness of such plan or trust owed to the Company or any of its Subsidiaries or Indebtedness guaranteed by the Company or any of its Subsidiaries) or out of the net cash proceeds of substantially concurrent capital contributions made to the Company; provided that the amount of any such net cash proceeds that are utilized for any such Restricted Investment, redemption, repurchase, retirement, defeasance or other acquisition shall will be excluded from clause (c) (ii7)(B) of the preceding paragraph; Section 3.6(a); (iii3) the defeasancedefeasance (whether legally or as to covenants only), redemption, repurchase or other acquisition of PARI PASSU or subordinated Indebtedness of the Company or any of its Restricted Subsidiaries or Disqualified Stock of the Company with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness; ; (iv4) the declaration and payment of any dividend by a Restricted Subsidiary of the Company to the holders of its such Restricted Subsidiary's Equity Interests on a pro rata basis; (5) the retirement of any shares of Disqualified Stock of the Company by conversion into, or by exchange for, shares of Disqualified Stock of the Company, or out of the net cash proceeds of the substantially concurrent sale (other than to a Restricted Subsidiary of the Company) of other shares of Disqualified Stock of the Company; provided that the Disqualified Stock of the Company that replaces the retired shares of Disqualified Stock of the Company shall not require the direct or indirect payment of any liquidation preference earlier in time than the final Stated Maturity of the retired shares of Disqualified Stock of the Company; (v6) any repurchase payments required to be made or otherwise contemplated pursuant to the Plan of Reorganization; (7) payments required to be made pursuant to the CPIH Reimbursement Agreement, the Corporate Services Reimbursement Agreement or Tax Sharing Agreement; (8) payments in respect of the limited partnership interests in Covanta Onondaga Limited Partnership and Covanta Huntington Limited Partnership pursuant to the limited partnership agreements of such entities as in effect on the Issue Date and as amended, modified or extended on terms not materially less favorable to the Company and its Restricted Subsidiaries, taken as a whole; (9) repurchases of Equity Interests deemed to occur upon the exercise of stock options if such Equity Interests represent a portion of the exercise price thereof; (10) payments in satisfaction of earn-out and deferred purchase price obligations pursuant to agreements relating to the acquisition of any Person which, following such acquisition, would be a Restricted Subsidiary of the Company; (11) any Restricted Payments made pursuant to any employee benefit plan, arrangement or perquisite (including plans, arrangements or perquisites for the benefit of directors) or employment agreements or other compensation arrangements, in each case as approved by the Board of Directors in its good faith judgment; (12) the distribution, as a dividend or otherwise, of Equity Interests of, or Indebtedness owed to the Company or a Restricted Subsidiary of the Company or MSC from present and former employees and directors by, any Unrestricted Subsidiary of the Company; (13) payments or distributions to dissenting stockholders pursuant to applicable law or pursuant to or in connection with a consolidation, merger or transfer of assets that complies with Section 5.1; (14) any purchase, redemption, retirement or other acquisition for value of any subordinated Indebtedness pursuant to the provisions of such Indebtedness relating to a change of control or sale of assets; provided that the Company shall have complied with any requirement to make a Change of Control Offer or its Subsidiaries Asset Sale Offer, as the case may be, in connection with such change of control or MSC in an aggregate amount not to exceed $5 millionsale of assets; and (vi) Permitted Investments; or (vii15) other Restricted Payments in an aggregate amount not to exceed $5 10.0 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 cashc) 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 covenant. 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 (as determined in good faith by the Board of Directors). 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 amount of all Restricted Payments (other than cash) shall will be the fair market value on the date of the Restricted Payment of the asset(s) assets or securities proposed to be transferred or issued by the Company or such any Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any non-cash Restricted Payment shall assets or securities that are required to be determined valued by this covenant will be determined, in good faith faith, by the Board of Directors whose resolution with respect thereto shall be delivered to the Trustee, such Directors. The Board of Directors' determination to must be based upon an opinion or appraisal issued by an accounting, appraisal or investment banking firm of national standing if such the fair market value exceeds $10.0 million15.0 million and if the Restricted Payment is to be made to an Affiliate of the Company or to the holders of or in respect of any Equity Interest. Not later than the date of making any Restricted PaymentPayment having a fair market value exceeding $15.0 million, the Company shall will deliver to the Trustee an Officers' Officer's Certificate stating that such Restricted Payment is permitted and setting forth the basis upon which the calculations required by this covenant Section 3.6 (c) were computed, together with a copy of any the fairness opinion or appraisal required by this Indenture. In determining whether any Restricted Payment is permitted by the Indenturecovenant described above, the Company may in its sole discretion allocate all or any portion of such Restricted Payment among the categories described in the immediately preceding paragraph or among such categories and the types of Restricted Payments described in the first paragraph under the "Restricted Payments" heading above; provided that at the time of such allocation, all such Restricted Payments, or allocated portions thereof, would be permitted under the various provisions of the covenant described above.

Restricted Payments. From and after the date hereof the Company (a) Ventas, Inc. shall not, and shall not permit any of its Subsidiaries Restricted Subsidiary to, directly or indirectly: : (i1) declare or pay any dividend or make any other payment or distribution on account of the Company's Ventas, Inc.’s or any of its Restricted Subsidiaries' ’ Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving Ventas, Inc. or any of its Restricted Subsidiaries) or to the direct or indirect holders of the Company's Ventas, Inc.’s or any of its Restricted Subsidiaries' ’ Equity Interests in their capacity as such (other than dividends or distributions payable (A) in Equity Interests (other than Disqualified Stock) of the CompanyVentas, Inc. or (B) to Ventas, Inc. or any of its Restricted Subsidiaries); ; (ii2) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Partnership) any Equity Interests of (A) the Company Partnership or any direct or indirect parent of the Company; Partnership or (iiiB) any Restricted Subsidiary, including a Permitted Joint Venture (in either case other than Equity Interests owned by Ventas, Inc. or any of its Restricted Subsidiaries); (3) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness that is PARI PASSU with or subordinated to the Notes (other than the Notes and the 2003 Notes)Subordinated Debt, except a payment of interest or principal at Stated Maturitythe stated maturity thereof; or or (iv4) make any Restricted Investment (all such payments and other actions set forth in these clauses (i1) through (iv4) above being collectively referred to as "RESTRICTED PAYMENTS"“Restricted Payments”), unless, at the time of and after giving effect to such Restricted Payment: (a1) no Default shall have occurred and be continuing; (2) Ventas, Inc. and its Restricted Subsidiaries could incur at least $1.00 of Debt (other than Permitted Debt) under the terms of the Indenture; and (3) the aggregate sum of all Restricted Payments made after the date hereof, excluding Restricted Payments made pursuant to the following paragraph, shall not exceed the sum of: (A) 95% Ventas, Inc.’s and its Restricted Subsidiaries’ aggregate cumulative Funds from Operations accrued on a cumulative basis from April 1, 2002; (B) the aggregate proceeds or values received after April 17, 2002 from the issuance or sale of Ventas, Inc.’s or the Partnership’s Equity Interests (other than Disqualified Stock and Equity Interests sold to a Subsidiary of Ventas, Inc.), net of underwriting discounts, commissions, legal fees and similar offering expenses; (C) any dividends or other distributions received by Ventas, Inc. or any of its Restricted Subsidiaries after April 17, 2002 from an Unrestricted Subsidiary of Ventas, Inc., to the extent that such dividends were not otherwise included in Earnings From Operations of Ventas, Inc. for such period, and (D) to the extent that any Unrestricted Subsidiary of Ventas, Inc. is or was redesignated as a Restricted Subsidiary after April 17, 2002, the lesser of (i) the Fair Market Value of Ventas, Inc.’s Investment in such Subsidiary as of the date of such redesignation or (ii) such Fair Market Value as of the date on which such Subsidiary was originally designated as an Unrestricted Subsidiary. (b) Notwithstanding the foregoing, the limitations on Restricted Payments described in Section 4.07(a) shall not apply to the following: (1) any distribution or other action which is necessary to maintain Ventas Inc.’s status as a REIT under the Code, if the aggregate principal amount of outstanding Debt of Ventas, Inc. and its Restricted Subsidiaries on a consolidated basis determined in accordance with GAAP is less than 60% of Adjusted Total Assets; (2) any distribution payable in Ventas, Inc.’s Equity Interests (other than Disqualified Stock); (3) so long as the Partnership is a partnership and no Default or Event of Default shall have has occurred and be is continuing under the Indenture, distributions to partners of the Partnership in an amount, with respect to any period after April 1, 2002, not to exceed the Tax Amount for such period; (4) the redemption, repurchase or would occur as other acquisition or retirement of any Equity Interests in exchange for, or out of the net cash proceeds of a consequence thereofsubstantially concurrent issue and sale of, Capital Stock to any Person (other than to a Subsidiary of Ventas, Inc.); andprovided, however, that such net cash proceeds are excluded from Section 4.07(a)(3)(B); (5) any redemption, repurchase or other acquisition or retirement of Subordinated Debt in exchange for, or out of the net cash proceeds of (a) a substantially concurrent issue and sale of, Capital Stock to any Person (other than to a Restricted Subsidiary of Ventas, Inc.); provided, however, that any such net cash proceeds are excluded from Section 4.07(a)(3)(B) and are not used under Section 4.07(b)(4) or (b) Permitted Refinancing Debt; (6) repurchases of Capital Stock deemed to occur upon the Company wouldexercise of stock options if such Capital Stock represents a portion of the exercise price thereof and repurchases of Capital Stock deemed to occur upon the withholding of a portion of the Capital Stock granted or awarded to an employee to pay for the taxes payable by such employee upon such grant or award; (7) pro rata dividends and other distributions on the Capital Stock of any Restricted Subsidiary by such Restricted Subsidiary to a Person other than Ventas, at Inc. or any of its Restricted Subsidiaries; (8) the time redemption, repurchase or other acquisition or retirement of any Capital Stock of Ventas, Inc. or any Restricted Subsidiary from any director, officer or employee of Ventas, Inc. or any Restricted Subsidiary, or from such person’s estate, (a) pursuant to any agreement with such director, officer or employee or (b) upon the death or termination of directorship or employment of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable fourperson, in an aggregate amount under this clause (8) not to exceed $1.5 million in any twelve-quarter month period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Cash Flow Coverage Ratio test set forth in the first paragraph of Section 4.09 hereof; and; (c9) such Restricted Paymentthe forgiveness of loans to current or former officers or directors of Ventas, together with the Inc. in an aggregate principal amount of all other Restricted Payments made by the Company and its Subsidiaries after the date of the Indenture (excluding Restricted Payments permitted by clauses (ii) and (iii) of the next succeeding paragraph), is less than the sum of (i) 50% of the Consolidated Net Income of the Company for the period (taken as one accounting period) from the beginning of the first fiscal quarter commencing after the date of the Indenture to the end of the Company's most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit), plus (ii) 100% of the aggregate net cash proceeds received by the Company from the issue or sale since the date of the Indenture of Equity Interests of the Company or MSC up to $10.0 million; and (10) other than Disqualified Stock) or of Disqualified Stock or debt securities of the Company or MSC that have been converted into such Equity Interests (other than Equity Interests (or Disqualified Stock or convertible debt securities) sold Restricted Payments in an aggregate amount not to a Subsidiary of the Company and other than Disqualified Stock or convertible debt securities that have been converted into Disqualified Stock), plus (iii) to the extent that any Restricted Investment that was made after the date of the Indenture is sold for cash or otherwise liquidated or repaid for cash, the lesser of (A) the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any) and (B) the initial amount of such Restricted Investment plus (iv) if any Unrestricted Subsidiary (A) is redesignated as a Restricted Subsidiary, the fair market value of such redesignated Subsidiary (as determined in good faith by the Board of Directors) as of the date of its redesignation or (B) pays any cash dividends or cash distributions to the Company or any of its Restricted Subsidiaries, 50% of any such cash dividends or cash distributions made after exceed $75.0 million since the date of the Indenture. The foregoing provisions Ventas, Inc. and its Restricted Subsidiaries shall not prohibit (i) be prohibited from making the payment of any dividend distribution within 60 days after of the date of declaration thereof, thereof if at said the date of declaration such payment would have complied with the provisions of the Indenture; (ii) the redemption, repurchase, retirement, defeasance or other acquisition of any PARI PASSU or subordinated Indebtedness or Equity Interests of the Company or MSC in exchange for, or out of the net cash proceeds of the substantially concurrent sale or issuance (other than to a Restricted Subsidiary of the Company) of, other Equity Interests of the Company or MSC (other than any Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such redemption, repurchase, retirement, defeasance or other acquisition shall be excluded from clause (c) (ii) of the immediately preceding paragraph; (iii) the defeasance. Ventas, 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 Equity Interests on a pro rata basis; (v) any repurchase of Equity Interests of the Company or MSC from present and former employees and directors of the Company or its Subsidiaries or MSC in an aggregate amount not to exceed $5 million; (vi) Permitted Investments; or (vii) other Restricted Payments in an aggregate amount not to exceed $5 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 Inc. 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 covenant. 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 (as determined in good faith by the Board of Directors). 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 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 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 deliver to the Trustee, such determination to be based upon an opinion or appraisal issued by an accountingwithin the time period for filing its quarterly report on Form 10-Q as set forth in Section 4.03(a) hereof, appraisal or investment banking firm of national standing if such fair market value exceeds $10.0 million. Not later than the date of making any Restricted Payment, the Company shall deliver to the Trustee an Officers' ’ Certificate stating that such Restricted Payment is permitted and setting forth the basis upon which the calculations required by this covenant Section 4.07 were computed, together with a copy of any fairness opinion or appraisal required by the this Indenture.

Restricted Payments. From and after the date hereof the (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiaries to, directly or indirectly: : (i) declare or pay any dividend or make any other payment or distribution on account of the Company's ’s or any of its Restricted Subsidiaries' ’ Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company or any of its Restricted Subsidiaries) or to the direct or indirect holders of the Company's ’s or any of its Restricted Subsidiaries' ’ Equity Interests in their capacity as such (other than dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company and other than dividends or distributions payable to the Company or a Restricted Subsidiary of the Company); ; (ii) purchase, redeem or otherwise acquire or retire for value (including without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or any direct or indirect parent of the Company; ; (iii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness that is PARI PASSU with or subordinated to the Notes (other than the Notes and the 2003 Notes)Subordinated Indebtedness, except a payment of interest or principal at the Stated MaturityMaturity thereof; or or (iv) make any Restricted Investment (all such payments and other actions set forth in these clauses (i) through (iv) above being collectively referred to as "RESTRICTED PAYMENTS"“Restricted Payments”), unless, at the time of and after giving effect to such Restricted Payment: (ai) no Default or Event of Default shall have has occurred and be is continuing or would occur as a consequence thereof; andof such Restricted Payment; (bii) the Company would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Cash Flow Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 4.09 5.7 hereof; and (ciii) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after since the date of the Indenture Issue Date (excluding Restricted Payments permitted by clauses (ii), (iii), (iv), (v), (vi), (vii), (viii) and (iiixi) of the next succeeding paragraphparagraph (b) of this Section 5.5), is less than the sum of sum, without duplication, of: (i1) 50% of the Consolidated Net Income of the Company for the period (taken as one accounting period) from the beginning of the first fiscal quarter commencing after during which the date of the Indenture Issue Date occurs to the end of the Company's ’s most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit), plus ; plus (ii2) 100% of (A)(i) the aggregate net cash proceeds and (ii) the Fair Market Value of (x) marketable securities (other than marketable securities of the Company), (y) Capital Stock of a Person (other than the Company or an Affiliate of the Company) engaged in a Permitted Business and (z) other assets used in any Permitted Business, in the case of clauses (i) and (ii), received by the Company since the Issue Date as a contribution to its common equity capital or from the issue or sale since the date of the Indenture of Equity Interests of the Company or MSC (other than Disqualified Stock) or from the issue or sale of convertible or exchangeable Disqualified Stock or convertible or exchangeable debt securities of the Company or MSC that have been converted into or exchanged for such Equity Interests (other than Equity Interests (or Disqualified Stock or convertible debt securities) sold to a Subsidiary of the Company and other than Disqualified Stock or convertible debt securities that have been converted into Disqualified StockCompany), plus (iii) to the extent that any Restricted Investment that was made after the date of the Indenture is sold for cash or otherwise liquidated or repaid for cash, the lesser of (A) the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any) and (B) the initial amount of such Restricted Investment plus (iv) if any Unrestricted Subsidiary (A) is redesignated as a Restricted Subsidiary, the fair market value of such redesignated Subsidiary (as determined in good faith by the Board of Directors) as which Indebtedness of the date Company or any Restricted Subsidiary is reduced on the Company’s consolidated balance sheet upon the conversion or exchange after the Issue Date of its redesignation any such Indebtedness into or for Equity Interests (Bother than Disqualified Stock) pays any of the Company, and (C) the aggregate net cash dividends or cash distributions to proceeds, if any, received by the Company or any of its Restricted SubsidiariesSubsidiaries upon any conversion or exchange described in clause (1) or (2) above; plus (3) with respect to Restricted Investments made by the Company and its Restricted Subsidiaries after the Issue Date, 50% an amount equal to the sum of (A) the net reduction in such Restricted Investments in any Person resulting from (i) repayments of loans or advances, or other transfers of assets, in each case to the Company or any Restricted Subsidiary, (ii) other repurchases, repayments or redemptions of such Restricted Investments, (iii) the sale of any such cash Restricted Investment or (iv) the release of any Guarantee (except to the extent any amounts are paid under such Guarantee) plus (B) all amounts representing the return of capital (excluding dividends and distributions) to the Company or cash distributions made after any Restricted Subsidiary in respect of such Restricted Investment plus (C) with respect to any Unrestricted Subsidiary that the date Board of Directors of the Indenture. Company redesignates as a Restricted Subsidiary, the Fair Market Value of the Investment in such Subsidiary held by the Company or any of its Restricted Subsidiaries at the time of such redesignation. (b) The foregoing provisions shall of Section 5.5(a) hereof will not prohibit prohibit: (i) the payment of any dividend or the consummation of any irrevocable redemption within 60 days after the date of declaration thereofof the dividend or giving of the redemption notice, as the case may be, if at said the date of declaration such or notice, the dividend or redemption payment would have complied with the provisions of this Agreement and the Indenture; Notes; (ii) the redemption, repurchase, retirement, defeasance or other acquisition making of any PARI PASSU or subordinated Indebtedness or Equity Interests of the Company or MSC Restricted Payment in exchange for, or out of the net cash proceeds of the substantially concurrent sale or issuance (other than to a Restricted Subsidiary of the Company) of, other Equity Interests of the Company or MSC (other than any Disqualified Stock) or from the substantially concurrent contribution (other than by a Subsidiary of the Company) of capital to the Company in respect of its Equity Interests (other than Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such redemption, Restricted Payment will be excluded from clause (iii)(2) of Section 5.5(a) hereof; (iii) the repurchase, retirementredemption, defeasance or other acquisition shall be excluded from clause or retirement for value of Subordinated Indebtedness (c) (ii) including the payment of the preceding paragraph; (iii) the defeasanceany required premium and any fees and expenses incurred in connection with such repurchase, redemption, repurchase defeasance or other acquisition of PARI PASSU or subordinated Indebtedness acquisition) with the net cash proceeds from an a substantially concurrent incurrence of Permitted Refinancing Indebtedness; provided that the amount of any such net cash proceeds that are utilized for any such Restricted Payment will be excluded from clause (iii)(2) of Section 5.5(a) hereof; (iv) the payment of any dividend (or, in the case of any partnership or limited liability company, any similar distribution) by a Restricted Subsidiary of the Company to the holders of its the Equity Interests (other than Disqualified Stock) of such Restricted Subsidiary; provided that such dividend or similar distribution is paid to all holders of such Equity Interests on a pro rata basis; basis based on their respective holdings of such Equity Interests; (v) the payment of any repurchase dividend on the EB-5 Preferred Stock; (vi) the repurchase, redemption or other acquisition or retirement of Equity Interests deemed to occur upon the exercise or exchange of stock options, warrants or other similar rights to the extent such Equity Interests represent a portion of the exercise or exchange price of those stock options, and the repurchase, redemption or other acquisition or retirement of Equity Interests made in lieu of withholding taxes resulting from the exercise or exchange of stock options, warrants or other similar rights; (vii) so long as no Default has occurred and is continuing or would be caused thereby, the declaration and payment of regularly scheduled or accrued dividends to holders of any class or series of Disqualified Stock of the Company or any Restricted Subsidiary of the Company or any class or series of preferred stock of a Restricted Subsidiary of the Company, in each case issued on or after the Issue Date in accordance with the Fixed Charge Coverage Ratio test described in Section 5.7 hereof; (viii) payments to fund the purchase by the Company of fractional shares arising out of stock dividends, splits or combination or business combinations; (ix) the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or MSC any Restricted Subsidiary of the Company held by any of the Company’s (or any of its Restricted Subsidiaries’) current or former directors or employees; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may not exceed the Fair Market Value thereof and furthermore may not exceed, in any twelve-month period since the Issue Date, $0.5 million (with unused amounts (with respect to the $0.5 million limit referred to above) in any 12-month period after such date being permitted to be carried over into succeeding 12-month periods); provided, further, that the amounts in any such 12-month period may be increased by an amount not to exceed (1) the cash proceeds received by the Company or any of its Restricted Subsidiaries from present the sale of the Company’s Equity Interests (other than Disqualified Stock) to any such directors or employees that occurs after the Issue Date (provided that the amount of such cash proceeds utilized for any such repurchase, retirement or other acquisition or retirement will not increase the amount available for Restricted Payments under clause (iii) of the immediately preceding paragraph and former employees to the extent such proceeds have not otherwise been applied to the payment of Restricted Payments) plus (2) the cash proceeds of key man life insurance policies received by the Company and directors its Restricted Subsidiaries after the Issue Date; (x) the purchase or redemption of any Acquired Subordinated Indebtedness of the Company or any of its Subsidiaries or MSC Restricted Subsidiaries, by application of (i) cash provided from operations in an aggregate amount not to exceed $5 million; (vi) Permitted Investments; the ordinary course of business or (viiii) proceeds from borrowings under the revolving portion of any Credit Facility (so long as within 30 days prior to such purchase or redemption, a corresponding amount of borrowings under the revolving portion of such Credit Facility was repaid from cash provided from operations in the ordinary course of business); provided, in any such case, that the Company is able to incur an additional $1.00 of Indebtedness pursuant to Section 5.5(a) hereof after giving effect to such purchase or redemption; provided, further, that this clause (x) shall not permit the application of any proceeds from any other borrowings under any Credit Facility to effect any such purchase or redemption; and (xi) so long as no Default has occurred and is continuing or would be caused thereby, other Restricted Payments in an aggregate amount not to exceed $5 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 5.0 million since 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 covenant. 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 (as determined in good faith by the Board of Directors). 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 SubsidiaryIssue Date. The amount of all Restricted Payments (other than cash) shall be the fair market value Fair Market Value on the date of the such Restricted Payment of the asset(s) or securities proposed to be paid, transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to the such Restricted Payment. The fair market value Fair Market Value of any cash Restricted Payment shall be its face amount, and the Fair Market Value of any non-cash Restricted Payment exceeding $5.0 million shall be determined conclusively by two senior officers of the Company acting in good faith whose conclusions with respect thereto shall be set forth in an Officers’ Certificate delivered to the Holders; provided, however, that if the Fair Market Value of any non-cash Restricted Payment exceeds $10.0 million, such Fair Market Value shall be determined conclusively by the Board of Directors whose of the Company and set forth in a board resolution, and a certified copy of such board resolution with respect thereto shall be delivered to the TrusteeHolders. For purposes of determining compliance with this Section 5.5, such determination in the event that a Restricted Payment meets the criteria of more than one of the exceptions described in (i) through (xi) above or is entitled to be based upon an opinion or appraisal issued by an accountingmade pursuant to Section 5.5(a) hereof, appraisal or investment banking firm of national standing if the Company shall, in its sole discretion, classify such fair market value exceeds $10.0 million. Not later than the date of making any Restricted Payment, the Company shall deliver to the Trustee an Officers' Certificate stating that or later classify, reclassify or re-divide all or a portion of such Restricted Payment is permitted and setting forth the basis upon which the calculations required by Payment, in any manner that complies with this covenant were computed, together with a copy of any fairness opinion or appraisal required by the IndentureSection 5.5.

Restricted Payments. From and after the date hereof the The Company shall not, and shall not cause or permit any of its Restricted Subsidiaries to, directly or indirectly: : (ia) declare or pay any dividend or make any other payment or distribution on account of the Company's or any of its Restricted Subsidiaries' Equity Interests or to the direct or indirect holders of the Company's or any of its Restricted Subsidiaries' Equity Interests in their capacity as such (other than (i) dividends or distributions payable in Equity Interests (other than Disqualified Stock) Qualified Capital Stock of the Company); Company and (ii) in the case of Restricted Subsidiaries, dividends or distributions to the Company or any other Restricted Subsidiary and pro rata dividends or distributions payable to the other holders of the same class of Capital Stock of such Restricted Subsidiary) on or in respect of shares of its Capital Stock to holders of such Capital Stock; (b) purchase, redeem or otherwise acquire or retire for value any Equity Interests Capital Stock of the Company or any direct warrants, rights or indirect parent options to purchase or acquire shares of the Company; any class of such Capital Stock; (iiic) make any principal payment on or with respect toon, or purchase, defease, redeem, defease prepay, decrease or otherwise acquire or retire for value value, prior to any scheduled final maturity, scheduled repayment or scheduled sinking fund payment, any Indebtedness of the Company or the Guarantors that is subordinate or junior in right of payment (but, for the avoidance of doubt, not any such Indebtedness that is PARI PASSU with subordinate or subordinated junior solely because of any Liens arising or created in respect of such Indebtedness) to the Notes Securities or the Guarantees; (d) make any Investment (other than the Notes and the 2003 NotesPermitted Investments), except a payment of interest or principal at Stated Maturity; or or (ive) make any payments on account of the Intercompany Agreements in respect of Restricted Investment Corporate Services Fees, (all such payments and other each of the foregoing actions set forth in clauses (ia), (b), (c), (d) through and (ive) above being collectively referred to as "RESTRICTED PAYMENTS"a “Restricted Payment”), unless, if at the time of and such Restricted Payment or immediately after giving effect to such Restricted Paymentthereto: (a1) no a Default or an Event of Default shall have occurred and be continuing or would occur as a consequence thereof; andcontinuing; (b2) the Company would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted is not able to incur at least $£1.00 of additional Indebtedness pursuant to the Cash Flow Coverage Consolidated Leverage Ratio test set forth in the first paragraph of Section 4.09 hereof4.10(a); andor (c3) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Subsidiaries after the date of the Indenture (excluding including such proposed Restricted Payments permitted by clauses (iiPayment) and (iii) of the next succeeding paragraph), is less than the sum of (i) 50% of the Consolidated Net Income of the Company for the period (taken as one accounting period) from the beginning of the first fiscal quarter commencing after the date of the Indenture to the end of the Company's most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit), plus (ii) 100% of the aggregate net cash proceeds received by the Company from the issue or sale since the date of the Indenture of Equity Interests of the Company or MSC (other than Disqualified Stock) or of Disqualified Stock or debt securities of the Company or MSC that have been converted into such Equity Interests (other than Equity Interests (or Disqualified Stock or convertible debt securities) sold to a Subsidiary of the Company and other than Disqualified Stock or convertible debt securities that have been converted into Disqualified Stock), plus (iii) to the extent that any Restricted Investment that was made after the date of Issue Date (the Indenture is sold amount expended for cash or otherwise liquidated or repaid for such purpose, if other than in cash, being the lesser of (A) the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any) and (B) the initial amount Fair Market Value of such Restricted Investment plus (iv) if any Unrestricted Subsidiary (A) is redesignated as a Restricted Subsidiary, the fair market value of such redesignated Subsidiary (property as determined in good faith by the Board of Directors) as of the date of its redesignation or (B) pays any cash dividends or cash distributions to the Company or any of its Restricted Subsidiaries, 50% of any such cash dividends or cash distributions made after the date of the Indenture. The foregoing provisions 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 the Indenture; (ii) the redemption, repurchase, retirement, defeasance or other acquisition of any PARI PASSU or subordinated Indebtedness or Equity Interests of the Company or MSC in exchange for, or out of the net cash proceeds of the substantially concurrent sale or issuance (other than to a Restricted Subsidiary of the Company) of, other Equity Interests of the Company or MSC (other than any Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such redemption, repurchase, retirement, defeasance or other acquisition shall be excluded from clause (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 Equity Interests on a pro rata basis; (v) any repurchase of Equity Interests of the Company or MSC from present reasonably and former employees and directors of the Company or its Subsidiaries or MSC in an aggregate amount not to exceed $5 million; (vi) Permitted Investments; or (vii) other Restricted Payments in an aggregate amount not to exceed $5 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 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 covenant. 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 (as determined in good faith by the Board of Directors). 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 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 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 of the Company) shall be delivered to exceed the Trustee, such determination to be based upon an opinion or appraisal issued by an accounting, appraisal or investment banking firm of national standing if such fair market value exceeds $10.0 million. Not later than 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 covenant were computed, together with a copy of any fairness opinion or appraisal required by the Indenture.sum of:

Restricted Payments. From and after the date hereof the (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly: : (i1) declare or pay any dividend or make any other payment or distribution on account of the Company's or any of its Restricted Subsidiaries' Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company or any of its Restricted Subsidiaries) or to the direct or indirect holders of the Company's or any of its Restricted Subsidiaries' Equity Interests in their capacity as such (other than dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company or to the Company or a Restricted Subsidiary of the Company); ; (ii2) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or any direct or indirect parent of the Company; ; (iii3) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness that is PARI PASSU with or subordinated to the Notes (other than or the Notes and the 2003 Notes)Subsidiary Guarantees, except a payment of interest or principal at the Stated MaturityMaturity thereof; or or (iv4) make any Restricted Investment (all such payments and other actions set forth in these clauses (i1) through (iv4) above being collectively referred to as "RESTRICTED PAYMENTSRestricted Payments"), unless, at the time of and after giving effect to such Restricted Payment: (a1) no Default or Event of Default shall have has occurred and be is continuing or would occur as a consequence thereofof such Restricted Payment; and (b2) the Company would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Cash Flow Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 4.09 hereof; and (c3) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after the date of the this Indenture (excluding Restricted Payments permitted by clauses (ii2), (3), (4), (6), (7) and (iii8) of Section 4.07(b) of the next succeeding paragraphhereof), is less than the sum of sum, without duplication, of: (ia) 50% of the Consolidated Net Income of the Company for the period (taken as one accounting period) from the beginning of the first fiscal quarter commencing after the date of the this Indenture to the end of the Company's most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit), plus plus (iib) 100% of the aggregate net cash proceeds received by the Company since the date of this Indenture as a contribution to its common equity capital or from the issue or sale since the date of the Indenture of Equity Interests of the Company or MSC (other than Disqualified Stock) or from the issue or sale of convertible or exchangeable Disqualified Stock or convertible or exchangeable debt securities of the Company or MSC that have been converted into or exchanged for such Equity Interests (other than Equity Interests (or Disqualified Stock or convertible debt securities) sold to a Subsidiary of the Company and other than Disqualified Stock or convertible debt securities that have been converted into Disqualified StockCompany), plus plus (iiic) to the extent that any Restricted Investment that was made after the date of the this Indenture is sold for cash or otherwise liquidated or repaid for cash, the lesser of (Ai) the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any) and (Bii) the initial amount of such Restricted Investment plus Investment, plus (ivd) if to the extent that any of the Unrestricted Subsidiary (A) Subsidiaries is redesignated as a Restricted SubsidiarySubsidiary after the date of this Indenture, the fair market value of the Company's Investment in such redesignated Subsidiary (as determined in good faith by the Board of Directors) as of the date of its redesignation or (B) pays any cash dividends or cash distributions to the Company or any of its Restricted Subsidiaries, 50% of any such cash dividends or cash distributions made after the date of the Indenture. The foregoing provisions 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 the Indenture; (ii) the redemption, repurchase, retirement, defeasance or other acquisition of any PARI PASSU or subordinated Indebtedness or Equity Interests of the Company or MSC in exchange for, or out of the net cash proceeds of the substantially concurrent sale or issuance (other than to a Restricted Subsidiary of the Company) of, other Equity Interests of the Company or MSC (other than any Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such redemption, repurchase, retirement, defeasance or other acquisition shall be excluded from clause (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 Equity Interests on a pro rata basis; (v) any repurchase of Equity Interests of the Company or MSC from present and former employees and directors of the Company or its Subsidiaries or MSC in an aggregate amount not to exceed $5 million; (vi) Permitted Investments; or (vii) other Restricted Payments in an aggregate amount not to exceed $5 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 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 covenant. 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 (as determined in good faith by the Board of Directors). 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 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 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, such determination to be based upon an opinion or appraisal issued by an accounting, appraisal or investment banking firm of national standing if such fair market value exceeds $10.0 million. Not later than 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 covenant were computed, together with a copy of any fairness opinion or appraisal required by the Indentureredesignation.

Restricted Payments. From and after the date hereof the The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly: (ia) declare or pay any dividend or make any other payment or distribution on account of the Company's or any of its Restricted Subsidiaries' Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company or any of its Restricted Subsidiaries) or to the direct or indirect holders Holders of the Company's or any of its Restricted Subsidiaries' Equity Interests in their capacity as such (other than dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company or any Restricted Subsidiary of the Company or payable to the Company or a Restricted Subsidiary of the Company); (iib) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or any direct or indirect parent Restricted Subsidiary of the CompanyCompany held by any Person (other than the Company or any of its Wholly Owned Restricted Subsidiaries); (iiic) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness that is PARI PASSU with or subordinated to the Notes (other than or the Notes and the 2003 Notes)Note Guarantees, except a payment of interest or principal and premium, if any, at the Stated MaturityMaturity thereof; or (ivd) make any Restricted Investment (all such payments and other actions set forth in these clauses (ia) through (ivd) above being collectively referred to as "RESTRICTED PAYMENTSRestricted Payments"), unless, at the time of and after giving effect to such Restricted Payment: (ai) no Default or Event of Default shall have has occurred and be is continuing or would occur as a consequence thereofof such Restricted Payment; and (bii) the Company would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Cash Flow Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 4.09 hereof; and (ciii) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after the date of the this Indenture (excluding Restricted Payments permitted by clauses (iib), (c) and (iiid) of the next succeeding paragraph), is less than the sum of sum, without duplication, of: (i1) 50% of the Consolidated Net Income of the Company for the period (taken as one accounting period) from the beginning of the first fiscal quarter commencing after the date of the this Indenture to the end of the Company's most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit), plus (ii2) 100% of the aggregate net cash proceeds received by the Company since the date of this Indenture as a contribution to its common equity capital or from the issue or sale since the date of the Indenture of Equity Interests of the Company or MSC (other than Disqualified Stock) or from the issue or sale of convertible or exchangeable Disqualified Stock or convertible or exchangeable debt securities of the Company or MSC that have been converted into or exchanged for such Equity Interests (other than Equity Interests (or Disqualified Stock or convertible debt securities) sold to a Subsidiary of the Company and other than Disqualified Stock or convertible debt securities that have been converted into Disqualified StockCompany), plus (iii3) (A) to the extent that any Restricted Investment that was made after the date of the this Indenture is sold for cash or otherwise liquidated or repaid for cashcash for an amount in excess of the initial amount of such Restricted Investment, the lesser sum of (Ax) 50% of the cash proceeds with respect to such Restricted Investment in excess of the aggregate amount invested in such Restricted Investment (less the cost of disposition, if any) and (y) the aggregate amount invested in such Restricted Investment, and (B) to the extent that any such Restricted Investment is sold for cash or otherwise liquidated or repaid in cash for an amount equal to or less than the initial amount of such Restricted Investment, the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any) and (B) ); provided that the initial amount of such Restricted Investment any Net Proceeds that are applied to repurchase the Notes pursuant to Section 4.15(c) shall be excluded from this clause (iii) (3) to the extent otherwise includible; plus (iv4) if 50% of any dividends received by the Company or a Restricted Subsidiary after the date of this Indenture from an Unrestricted Subsidiary of the Company, to the extent that such dividends were not otherwise included in Consolidated Net Income of the Company for such period, plus (5) to the extent that any Unrestricted Subsidiary (A) of the Company is redesignated as a Restricted SubsidiarySubsidiary after the date of this Indenture, the lesser of (x) the fair market value of the Company's Investment in such redesignated Subsidiary (as determined in good faith by the Board of Directors) as of the date of its such redesignation or (By) pays any cash dividends or cash distributions to the Company or any such fair market value as of its Restricted Subsidiaries, 50% of any such cash dividends or cash distributions made after the date of on which such Subsidiary was originally designated as an Unrestricted Subsidiary. So long as no Default has occurred and is continuing or would be caused thereby, the Indenture. The foregoing preceding provisions shall not prohibit prohibit: (ia) the payment of any dividend within 60 days after the date of declaration thereofof the dividend, if at said the date of declaration such the dividend payment would have complied with the provisions of the this Indenture; (ii) the redemption, repurchase, retirement, defeasance or other acquisition of any PARI PASSU or subordinated Indebtedness or Equity Interests of the Company or MSC in exchange for, or out of the net cash proceeds of the substantially concurrent sale or issuance (other than to a Restricted Subsidiary of the Company) of, other Equity Interests of the Company or MSC (other than any Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such redemption, repurchase, retirement, defeasance or other acquisition shall be excluded from clause (c) (ii) of the preceding paragraph; (iiib) the defeasance, redemption, repurchase or other acquisition of PARI PASSU or subordinated Indebtedness of the Company or any Restricted Subsidiary with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness; (ivc) the payment of any dividend by a Restricted Subsidiary of the Company to the holders of its Equity Interests on a pro rata basis; and (vd) the repurchase, redemption or other acquisition or retirement for value of any repurchase of Equity Interests of the Company or MSC from present and former employees and directors any Restricted Subsidiary of the Company held by any member of the Company's (or any of its Subsidiaries Restricted Subsidiaries') management pursuant to any management equity subscription agreement, stock option agreement or MSC in an similar agreement; provided that the aggregate amount price paid for all such repurchased, redeemed, acquired or retired Equity Interests may not to exceed $5 million; (vi) Permitted Investments; or (vii) other Restricted Payments 250,000 in an aggregate amount not to exceed $5 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 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 covenant. 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 (as determined in good faith by the Board of Directors). 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 Subsidiarytwelve-month period. 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 Section 4.07 shall be determined in good faith by the Board of Directors in good faith, whose resolution with respect thereto shall be delivered to the Trustee, such . The Board of Directors' determination to must be based upon an opinion or appraisal issued by an accounting, appraisal or investment banking firm of national standing if such the fair market value exceeds $10.0 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 covenant Section 4.07 were computed, together with a copy of any fairness opinion or appraisal required by the this Indenture.

Restricted Payments. From and after the date hereof the The Company shall will not, and shall will not permit any of its Restricted Subsidiaries to, directly or indirectly: : (i1) declare or pay any dividend or make any other payment or distribution on account of the Company's or any of its Restricted Subsidiaries' Equity Interests or to the direct or indirect holders of the Company's or any of its Restricted Subsidiaries' Equity Interests in their capacity as such (other than (x) dividends or (y) distributions payable in Equity Interests (other than Disqualified Stock) of the Company or dividends or distributions payable to the Company or any Wholly Owned Restricted Subsidiary of the Company); ; (ii2) purchase, redeem or otherwise acquire or retire for value any Equity Interests of the Company or Parent other than any direct of those Equity Interests owned by the Company or indirect parent any Restricted Subsidiary of the Company; ; (iii3) make any principal payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value value, any Indebtedness of the Company or any Guarantor that is PARI PASSU with or contractually subordinated to the Notes or any Note Guarantee (other than the Notes and the 2003 Notes"Subordinated Debt"), except a payment of interest or principal at the Stated MaturityMaturity thereof; or or (iv4) make any Restricted Investment (all such payments and other actions set forth in clauses (i1) through (iv4) above being collectively referred to as "RESTRICTED PAYMENTSRestricted Payments"), unless, at the time of and after giving effect to such that Restricted Payment: (a1) no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof; and; (b2) the Company would, at the time of such Restricted Payment and immediately after giving pro forma effect thereto as if such that Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Cash Flow Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 4.09 hereof; and (c3) such that Restricted Payment, Payment together with the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after the date of the this Indenture (excluding Restricted Payments permitted by clauses (ii1) (to the extent that the declaration of any dividend referred to therein reduces amounts available for Restricted Payments pursuant to this clause (3)), (2) through (13), (15) and (iii16) of the next succeeding paragraphparagraph of this Section 4.07), is less than the sum of sum, without duplication, of: (ia) 50% of the Consolidated Net Income of the Company for the period (taken as one accounting period) from the beginning of the first fiscal quarter commencing after the date of the Indenture January 1, 2004 to the end of the Company's most recently ended fiscal quarter for which internal financial statements are available at the time of such that Restricted Payment (or, if such Consolidated Net Income for such that period is a deficit, less 100% of such the deficit), plus ; plus (iib) 100% of the aggregate net cash proceeds Qualified Proceeds received by the Company on or after the date of this Indenture from contributions to the Company's capital or from the issue or sale since on or after the date of the this Indenture of Equity Interests of the Company or MSC (other than Disqualified Stock) or of Disqualified Stock or convertible debt securities of the Company or MSC to the extent that they have been converted into such those Equity Interests (Interests, other than Equity Interests (or Interests, Disqualified Stock or convertible debt securities) securities sold to a Subsidiary of the Company and other than Disqualified Stock or convertible debt securities that have been converted into Disqualified Stock), plus ; plus (iiic) the amount equal to the extent that any Restricted Investment that was made net reduction in Investments in Persons after the date of the this Indenture is sold for cash or otherwise liquidated or repaid for cash, the lesser of who are not Restricted Subsidiaries (Aother than Permitted Investments) the cash return of capital with respect to such Restricted Investment resulting from: (less the cost of disposition, if anyi) and (B) the initial amount of such Restricted Investment plus (iv) if any Unrestricted Subsidiary (A) is redesignated Qualified Proceeds received as a Restricted Subsidiarydividend, repayment of a loan or advance or other transfer of assets (valued at the fair market value of such redesignated Subsidiary (as determined in good faith by the Board of DirectorsFair Market Value thereof) as of the date of its redesignation or (B) pays any cash dividends or cash distributions to the Company or any Restricted Subsidiary from those Persons; (ii) Qualified Proceeds received upon the sale or liquidation of its those Investments; and (iii) the redesignation of Unrestricted Subsidiaries (excluding any increase in the amount available for Restricted SubsidiariesPayments pursuant to clause (11) below arising from the redesignation of that Unrestricted Subsidiary) whose assets are used or useful in, 50% of any such cash dividends or cash distributions made after which is engaged in, one or more Permitted Business as Restricted Subsidiaries (valued, proportionate to the date Company's equity interest in that Subsidiary, at the Fair Market Value of the Indenturenet assets of that Subsidiary at the time of that redesignation). The foregoing provisions shall will not prohibit prohibit: (i1) the payment of any dividend within 60 days after the date of declaration thereof, if at said date of declaration such declaration, the payment would have complied with the provisions of the this Indenture; ; (ii2) the redemption, repurchase, retirement, defeasance or other acquisition of any PARI PASSU or subordinated Indebtedness or Equity Interests of the Company or MSC in exchange for, or out of the net cash proceeds of the substantially concurrent sale or issuance (other than to a Restricted Subsidiary of the Company) of, of other Equity Interests of the Company or MSC (other than any Disqualified Stock); , provided that the amount of any such net cash proceeds that are utilized for any such redemption, repurchase, retirement, defeasance or other acquisition shall be excluded from clause (c) (ii3)(b) of the preceding paragraph; ; (iii3) the defeasance, redemption, repurchase repurchase, retirement or other acquisition of PARI PASSU or subordinated Indebtedness with the net cash proceeds from an incurrence of of, or in exchange for, Permitted Refinancing Indebtedness; ; (iv4) payments and transactions in connection with (x) the Financial Advisory Agreement, not to exceed $500,000 in any one calendar year, and (y) the Offerings and the Credit Agreement (including commitment, syndication and arrangement fees payable thereunder) and the application of the proceeds thereof, including to make a dividend or distribution to Parent, and the payment of fees and expenses with respect thereto; (5) the payment of dividends or the making of loans or advances by the Company to Parent not to exceed $2.0 million in any dividend fiscal year for costs and expenses incurred by Parent in its capacity as a holding company for services rendered by Parent on behalf of the Company; (6) payments or distributions to Parent pursuant to any Tax Sharing Agreement; (7) the payment of dividends by a Restricted Subsidiary on any class of common stock of that Restricted Subsidiary if: (a) that dividend is paid pro rata to all holders of that class of common stock; and (b) at least 51% of that class of common stock is held by the Company or one or more of its Restricted Subsidiaries; (8) the repurchase of any class of common stock of a Restricted Subsidiary if: (a) that repurchase is made pro rata with respect to that class of common stock; and (b) at least 51% of that class of common stock is held by the Company or one or more of its Restricted Subsidiaries; (9) (the declaration and payment of dividends to holders of its Equity Interests on a pro rata basis; (v) any repurchase class or series of Equity Interests Disqualified Stock of the Company or MSC from present and former employees and directors of the Company or its Subsidiaries or MSC in an aggregate amount not to exceed $5 million; (vi) Permitted Investments; or (vii) other Restricted Payments in an aggregate amount not to exceed $5 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 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 covenant. 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 (as determined in good faith by the Board of Directors). 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 amount of all Restricted Payments (other than cash) shall be the fair market value issued on or after the date of the Restricted Payment this Indenture in accordance with Section 4.09 hereof; provided that no Default or Event of the asset(s) or securities proposed to Default shall have occurred and be transferred or issued by the Company or such Subsidiary, as the case may be, pursuant to the continuing immediately after making that 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, such determination to be based upon an opinion or appraisal issued by an accounting, appraisal or investment banking firm of national standing if such fair market value exceeds $10.0 million. Not later than 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 covenant were computed, together with a copy of any fairness opinion or appraisal required by the Indenture.;

Restricted Payments. From and after the date hereof the (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiaries to, directly or indirectly: : (i1) declare or pay any dividend or make any other payment or distribution on account of the Company's ’s or any of its Restricted Subsidiaries' ’ Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company or any of its Restricted Subsidiaries) or to the direct or indirect holders of the Company's ’s or any of its Restricted Subsidiaries' ’ Equity Interests in their capacity as such (other than dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the CompanyCompany and other than dividends or distributions payable to the Company or a Restricted Subsidiary); ; (ii2) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or any direct or indirect parent of the Company; ; (iii3) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value value, any Indebtedness that is PARI PASSU with or subordinated to the Notes Subordinated Debt (other than any intercompany Indebtedness between or among the Notes Company and the 2003 Notesany of its Restricted Subsidiaries), except a payment of interest or principal at within one year of the Stated MaturityMaturity thereof; or or (iv4) make any Restricted Investment (all such payments and other actions set forth in clauses (i1) through (iv4) above of this Section 4.07(a) being collectively referred to as "RESTRICTED PAYMENTS"“Restricted Payments”), unless, at the time of and after giving effect to such Restricted Payment: (a) , no Default or Event of Default shall have (except a Reporting Default) has occurred and be is continuing or would occur as a consequence thereof; andof such Restricted Payment and either: (bI) if the Company would, Fixed Charge Coverage Ratio for the Company’s most recently ended four full fiscal quarters for which internal financial statements are available at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at (the beginning of the applicable four-quarter period“Trailing Four Quarters”) is not less than 1.75 to 1.0, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Cash Flow Coverage Ratio test set forth in the first paragraph of Section 4.09 hereof; and (c) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after during the date of the Indenture fiscal quarter in which such Restricted Payment is made (excluding Restricted Payments permitted by clauses (ii2), (3), (4), (5), (6), (7), (8), (9), (10), (11) and (iii12) of the next succeeding paragraphSection 4.07(b)), is less than the sum of sum, without duplication, of: (iA) 50% of the Consolidated Net Income of the Company for the period (taken as one accounting period) Available Cash from the beginning of the first fiscal quarter commencing after the date of the Indenture Operating Surplus with respect to the end of the Company's most recently ended ’s preceding fiscal quarter for which internal financial statements are available at the time of such Restricted Payment quarter; plus (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit), plus (iiB) 100% of the aggregate net cash proceeds proceeds, and the Fair Market Value of any Capital Stock of Persons engaged primarily in a Permitted Business or other long-term assets that are used or useful in a Permitted Business, in each case, received by the Company from the issue or sale since the date Issue Date from (i) a contribution to the common equity capital of the Indenture Company from any Person (other than a Restricted Subsidiary) or (ii) the issuance and sale (other than to a Restricted Subsidiary) of Equity Interests of the Company or MSC (other than Disqualified Stock) of the Company or from the issuance or sale (other than to a Restricted Subsidiary) of convertible or exchangeable Disqualified Stock or convertible or exchangeable debt securities of the Company or MSC that have been converted into or exchanged for such Equity Interests (other than Equity Interests (or Disqualified Stock or convertible debt securities) sold to a Subsidiary of the Company and other than Disqualified Stock or convertible debt securities that have been converted into Disqualified Stock), plus ; plus (iiiC) to the extent that any Restricted Investment that was made after the date of the Indenture Issue Date is sold for cash or Cash Equivalents or otherwise cancelled, liquidated or repaid for cashcash or Cash Equivalents, the lesser of (A) the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any) and ); plus (BD) the initial amount equal to the net reduction in Restricted Investments since the Issue Date resulting from (i) dividends, repayments of such Restricted Investment plus (iv) if any Unrestricted Subsidiary (A) is redesignated as a Restricted Subsidiaryloans or advances, the fair market value or other transfers of such redesignated Subsidiary (as determined assets, in good faith by the Board of Directors) as of the date of its redesignation or (B) pays any cash dividends or cash distributions each case, to the Company or any of its Restricted Subsidiaries from any Person (including, without limitation, any Unrestricted Subsidiary) or (ii) designation of Unrestricted Subsidiaries as Restricted Subsidiaries, 50% of to the extent such amounts have not been included in Available Cash from Operating Surplus for any such cash dividends period commencing on or cash distributions made after the date Issue Date (items (B), (C) and (D) being collectively referred to as “Incremental Funds”); minus (E) the aggregate amount of Incremental Funds previously expended pursuant to this clause (I) and clause (II) below; or (II) if the Fixed Charge Coverage Ratio of the Indenture. Company for the Trailing Four Quarters is less than 1.75 to 1.0, such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries during the fiscal quarter in which such Restricted Payment is made (excluding Restricted Payments permitted by clauses (2), (3), (4), (5), (6), (7), (8), (9), (10), (11) and (12) of Section 4.07(b)), is less than the sum, without duplication, of: (A) $100.0 million, less the aggregate amount of all prior Restricted Payments made by the Company and its Restricted Subsidiaries pursuant to this clause (II)(A) since the Issue Date; plus (B) Incremental Funds to the extent not previously expended pursuant to this clause (II) or clause (I) above; provided, however, that the only Restricted Payments permitted to be made pursuant to this clause (II) are distributions on the Company’s common and subordinated units plus the related distributions on the General Partner’s general partner interest and any distributions with respect to incentive distribution rights. (b) The foregoing provisions shall of Section 4.07 (a) will not prohibit prohibit: (i1) the payment of any dividend or distribution or the consummation of any irrevocable redemption within 60 days after the date of declaration thereofof the dividend or distribution or giving of the redemption notice, as the case may be, if at said the date of declaration such or notice, the dividend, distribution or redemption payment would have complied with the provisions of the this Indenture; ; (ii2) the redemption, repurchase, retirement, defeasance or other acquisition making of any PARI PASSU or subordinated Indebtedness or Equity Interests of the Company or MSC Restricted Payment in exchange for, or out of the net cash proceeds of the substantially concurrent (a) contribution (other than from a Restricted Subsidiary) to the equity capital of the Company or (b) sale or issuance (other than to a Restricted Subsidiary Subsidiary) of the Company) of, other Equity Interests of the Company or MSC (other than any Disqualified Stock), with a sale being deemed substantially concurrent if such Restricted Payment occurs not more than 120 days after such sale; provided provided, however, that the amount of any such net cash proceeds that are utilized for any such Restricted Payment will be excluded (or deducted, if included) from the calculation of Available Cash from Operating Surplus and Incremental Funds; (3) the purchase, redemption, repurchase, retirement, defeasance or other acquisition shall be excluded from clause (c) (ii) or retirement for value of the preceding paragraph; (iii) the defeasance, redemption, repurchase or other acquisition of PARI PASSU or subordinated Indebtedness Subordinated Debt with the net cash proceeds from an incurrence of of, or in exchange for, Permitted Refinancing Indebtedness; ; (iv4) the payment of any dividend or distribution by a Restricted Subsidiary of the Company to the holders of its Equity Interests on a pro rata basis; (5) as long as no Default has occurred and is continuing or would be caused thereby, the purchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Restricted Subsidiary held by any of the current or former directors or employees of the General Partner, the Company or of any Restricted Subsidiary; provided, however, that the aggregate price paid for all such purchased, redeemed, acquired or retired Equity Interests may not exceed $5.0 million in any fiscal year, with any portion of such $5.0 million amount that is unused in any fiscal year to be carried forward to successive fiscal years and added to such amount, plus, to the extent not previously applied or included (va) the cash proceeds received by the Company or any repurchase of its Restricted Subsidiaries from sales of Equity Interests of the Company to employees or directors of the General Partner, the Company or its Affiliates that occur after the Issue Date (to the extent the cash proceeds from the sale of such Equity Interests have not otherwise been applied to the payment of Restricted Payments by virtue of clause (I)(B) or (II)(B) of Section 4.07(a)) and (b) the cash proceeds of key man life insurance policies received by the Company or any of its Restricted Subsidiaries after the Issue Date; (6) the purchase, repurchase, redemption or other acquisition or retirement for value of Equity Interests deemed to occur upon the exercise of unit options, warrants, incentives, rights to acquire Equity Interests or other convertible securities if such Equity Interests represent a portion of the exercise or exchange price thereof, and any purchase, repurchase, redemption or other acquisition or retirement for value of Equity Interests made in lieu of withholding taxes in connection with any exercise or exchange of unit options, warrants, incentives or rights to acquire Equity Interests; (7) payments of cash, dividends, distributions, advances or other Restricted Payments, in each case, made in lieu of the issuance of fractional shares or units in connection with the exercise of warrants, options or other securities convertible or exchangeable for Equity Interests or in connection with the payment of a dividend or distribution to the holders of Equity Interests of the Company in the form of Equity Interests (other than Disqualified Stock) of the Company; (8) the purchase, redemption or other acquisition or retirement for value of Equity Interests of the Company or MSC from present any Restricted Subsidiary representing fractional units of such Equity Interests in connection with a merger or consolidation involving the Company or such Restricted Subsidiary or any other transaction permitted by this Indenture; (9) payments to the General Partner constituting reimbursements for expenses in accordance with the Partnership Agreement as in effect on the Issue Date and former employees as it may be amended or replaced thereafter, provided that any such amendment or replacement is not materially less favorable to the Company in any material respect than the agreement prior to such amendment or replacement; (10) as long as no Default has occurred and directors is continuing or would be caused thereby, the declaration and payment of regularly scheduled or accrued dividends to holders of any class or series of Disqualified Stock of the Company or any preferred stock of any Restricted Subsidiary issued on or after the Issue Date in accordance with the provisions of Section 4.09; (11) in connection with an acquisition by the Company or any of its Restricted Subsidiaries, the return to the Company or any of its Restricted Subsidiaries of Equity Interests of the Company or its Restricted Subsidiaries constituting a portion of the purchase consideration in settlement of indemnification claims or MSC in an aggregate amount not purchase price adjustments; (12) the distribution, dividend or other transfer (including by exchange) of shares of Capital Stock of any Unrestricted Subsidiary, or Indebtedness owed to exceed $5 million; (vi) Permitted Investments; the Company or (vii) other Restricted Payments in an aggregate amount not to exceed $5 million. The Board of Directors may designate any a 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 at the time of such designation and will reduce the amount available for Restricted Payments under the first paragraph of this covenant. 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 (as determined in good faith by the Board of Directors). 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. ; and (13) the purchase, redemption, defeasance or other acquisition or retirement for value of any Subordinated Debt (a) at a purchase price not greater than 101% of the principal amount of such Subordinated Debt plus accrued interest in accordance with the provisions similar to Section 4.14 or (b) at a purchase price not greater than 100% of the principal amount thereof plus accrued interest in accordance with provisions similar to Section 4.10; provided that, prior to or simultaneously with such purchase, redemption, defeasance or other acquisition or retirement for value, the Company shall have complied with the provisions of Section 4.14 or Section 4.10, as the case may be, and repurchased all Notes validly tendered for payment in connection with the Change of Control Offer, Asset Sale Offer or Alternate Offer, as the case may be. (c) The amount of all Restricted Payments (other than cash) shall will be the fair market value Fair Market Value on the date of the Restricted Payment of the Restricted Investment proposed to be made or the asset(s) or securities proposed to be transferred or issued by the Company or such a Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value , except that the Fair Market Value of any non-cash Restricted Payment dividend or distribution paid within 60 days after the date of its declaration shall be determined in good faith by the Board as of Directors whose resolution with respect thereto shall be delivered to the Trusteesuch date of declaration. The Fair Market Value of any Restricted Investment, such determination assets or securities that are required to be based upon an opinion valued by this Section 4.07 will be determined in accordance with the definition of that term. For purposes of determining compliance with this Section 4.07, (x) in the event that a Restricted Payment meets the criteria of more than one of the categories of Restricted Payments described in the preceding clauses (1) through (13) of Section 4.07(b), or appraisal issued by an accounting, appraisal or investment banking firm of national standing if such fair market value exceeds $10.0 million. Not later than the date of making any Restricted Paymentis permitted pursuant to Section 4.07(a), the Company shall deliver will be permitted to the Trustee an Officers' Certificate stating that classify (or later classify or reclassify in whole or in part in its sole discretion) such Restricted Payment (or portion thereof) on the date made or later reclassify such Restricted Payment (or portion thereof) in any manner that complies with this Section 4.07; and (y) in the event a Restricted Payment is made pursuant to clause (I) or (II) of Section 4.07(a), the Company will be permitted to classify whether all or any portion thereof is being (and setting forth in the basis upon which absence of such classification shall be deemed to have classified the calculations required by this covenant were computed, together minimum amount possible as having been) made with a copy of any fairness opinion or appraisal required by the IndentureIncremental Funds.

Restricted Payments. From and after the date hereof the The Company shall will not, and shall will not permit any of its the Restricted Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly: (i) declare or pay , any dividend on any class of its stock, or make any other payment or distribution on account of, or set apart assets for a sinking or other analogous fund for, the purchase, redemption, retirement, defeasance or other acquisition of, any shares of the Company's common stock or any of its Restricted Subsidiaries' Equity Interests or Indebtedness subordinated to the direct or indirect holders of the Company's or any of its Restricted Subsidiaries' Equity Interests in their capacity as such (other than dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company); (ii) purchase, redeem or otherwise acquire or retire for value any Equity Interests Obligations of the Company or any direct or indirect parent of the Company; (iii) make any payment on or with respect tooptions, warrants, or purchaseother rights to purchase such common stock or such Indebtedness, redeemwhether now or hereafter outstanding (each, defease or otherwise acquire or retire for value any Indebtedness that is PARI PASSU with or subordinated to the Notes (other than the Notes and the 2003 Notesa “Restricted Payment”), except a payment of interest or principal at Stated Maturity; or except: (iva) the Company and such Restricted Subsidiaries may make any Restricted Investment (all such payments and other actions set forth in clauses Payments, if (i) through (iv) above being collectively referred to as "RESTRICTED PAYMENTS"), unless, at the time of both before and after giving effect to such Restricted Payment no Default shall have occurred or be continuing and (ii) after giving pro forma effect to such Restricted Payment:, the Company’s Total Leverage Ratio is less than or equal to 3.00 to 1.00; (ab) if after giving pro forma effect to a Restricted Payment, the Company’s Leverage Ratio is greater than to 3.00 to 1.00, the Company and such Restricted Subsidiaries may make the following Restricted Payments: (1) dividends payable by the Company solely in shares of any class of its common stock, (2) Restricted Payments made by any such Restricted Subsidiary to the Company or to another Restricted Subsidiary Loan Party, (3) dividends paid by any such Restricted Subsidiary to Company or to another such Restricted Subsidiary that is its direct parent and (4) cash dividends paid on, and cash redemptions of, the common stock of the Company provided, that (i) no Default or Event of Default shall have has occurred and be is continuing or would occur as a consequence thereof; and (b) the Company would, at the time of such Restricted Payment dividend is paid or redemption is made, and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Cash Flow Coverage Ratio test set forth in the first paragraph of Section 4.09 hereof; and (cii) such Restricted Payment, together with the aggregate amount of all other such Restricted Payments made by the Company and its Subsidiaries after the date of the Indenture (excluding Restricted Payments permitted by clauses (ii) and (iii) of the next succeeding paragraph), is less than does not exceed the sum of (iA) $100,000,000 during the term of this Agreement plus (B) fifty percent (50% %) of the Consolidated Net Income (if greater than $0) earned year to date as of the Company for the period (taken as one accounting period) from the beginning of the first fiscal quarter commencing after the date of the Indenture to the end of the Company's most recently ended fiscal quarter quarter, and further, provided, if such Restricted Payments in any fiscal year are less than hereby permitted for such fiscal year, the excess permitted amount for such fiscal year may be carried forward to any succeeding fiscal period; (c) each such Restricted Subsidiary may make Restricted Payments to the Company, the Subsidiary Guarantors and any other Person that owns an equity interest in such Restricted Subsidiary, ratably according to their respective holdings of the type of equity interest in respect of which internal financial statements are available such Restricted Payment is being made; and (d) the Company may, in its sole discretion, pay the Special Dividend so long as at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit), plus (ii) 100% paying the Special Dividend the Company demonstrates to the reasonable satisfaction of the aggregate net cash proceeds received by Administrative Agent that prior to, and immediately after giving effect (including effect on a pro forma basis) to, the Company from the issue or sale since the date payment of the Indenture of Equity Interests of the Company or MSC (other than Disqualified Stock) or of Disqualified Stock or debt securities of the Company or MSC that have been converted into such Equity Interests (other than Equity Interests (or Disqualified Stock or convertible debt securities) sold to a Subsidiary of the Company and other than Disqualified Stock or convertible debt securities that have been converted into Disqualified Stock), plus (iii) to the extent that any Restricted Investment that was made after the date of the Indenture is sold for cash or otherwise liquidated or repaid for cash, the lesser of (A) the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any) and (B) the initial amount of such Restricted Investment plus (iv) if any Unrestricted Subsidiary (A) is redesignated as a Restricted Subsidiary, the fair market value of such redesignated Subsidiary (as determined in good faith by the Board of Directors) as of the date of its redesignation or (B) pays any cash dividends or cash distributions to the Company or any of its Restricted Subsidiaries, 50% of any such cash dividends or cash distributions made after the date of the Indenture. The foregoing provisions shall not prohibit Special Dividend (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 aggregate amount of the Indenture; (ii) the redemption, repurchase, retirement, defeasance or other acquisition of any PARI PASSU or subordinated Indebtedness or Equity Interests Available Revolving Commitments of the Company Lenders at such time is equal to or MSC in exchange for, or out of the net cash proceeds of the substantially concurrent sale or issuance (other greater than to a Restricted Subsidiary of the Company) of, other Equity Interests of the Company or MSC (other than any Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such redemption, repurchase, retirement, defeasance or other acquisition shall be excluded from clause (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 Equity Interests on a pro rata basis; (v) any repurchase of Equity Interests of the Company or MSC from present and former employees and directors of the Company or its Subsidiaries or MSC in an aggregate amount not to exceed $5 million; (vi) Permitted Investments; or (vii) other Restricted Payments in an aggregate amount not to exceed $5 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 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 covenant. All such outstanding Investments will be deemed to constitute Investments in an amount equal to 15% of the fair market value of such Investments at the time of such designation (as determined in good faith by the Board of Directors). Such designation shall only be permitted if such Restricted Payment would be permitted Revolving Credit Availability at such time and and, if such Restricted Subsidiary otherwise meets the definition of Company were to borrow an Unrestricted Subsidiary. The amount of all Restricted Payments (other than cash) shall be the fair market value on the date equal to 15% of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Company or Aggregate Commitment at such 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, such determination to be based upon an opinion or appraisal issued by an accounting, appraisal or investment banking firm of national standing if such fair market value exceeds $10.0 million. Not later than the date of making any Restricted Paymenttime, the Company Total Leverage Ratio (giving pro forma effect to such theoretical borrowing) would be equal to or less than 4.00 to 1.00 and (ii) no Default 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 covenant were computed, together with a copy of any fairness opinion have occurred or appraisal required by the Indenturebe continuing.

Restricted Payments. From and after the date hereof the The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly: : (i1) declare or pay any dividend or make any other payment or distribution on account of the Company's or any of its Restricted Subsidiaries' Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company or any of its Restricted Subsidiaries) or to the direct or indirect holders of the Company's or any of its Restricted Subsidiaries' Equity Interests in their capacity as such (other than dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company or to the Company or a Restricted Subsidiary of the Company); ; (ii2) purchase, redeem or otherwise acquire or retire for value (including without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or any direct or indirect parent of the Company; Company (iiiother than any such Equity Interests owned by the Company or any of its Restricted Subsidiaries); (3) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness that is PARI PASSU with or subordinated to the Notes (other than the Notes and the 2003 Notes), except a payment of interest or principal at Stated Maturity; or or (iv4) make any Restricted Investment Investment, (all such payments and other actions set forth in these clauses (i1) through (iv4) above above, including those occuring since the date of the Senior Discount Note Indenture, being collectively referred to as "RESTRICTED PAYMENTSRestricted Payments"), unless, at the time of and after giving effect to such Restricted Payment: (a1) no Default or Event of Default shall have has occurred and be is continuing or would occur as a consequence thereofof the Restricted Payment; and (b2) the Company would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, would have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Debt to Adjusted Consolidated Cash Flow Coverage Ratio test set forth in the first paragraph of Section 4.09 hereof; provided that the Company and its Restricted Subsidiaries shall not be required to comply with this clause (2) in order to make any Restricted Investment; and (c3) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after the date of the Senior Discount Note Indenture (excluding Restricted Payments permitted by clauses (ii2), (3) and (iii4) of the next succeeding paragraphparagraph of exceptions below), is less than the sum of sum, without duplication, of: (ia) 50100% of the Consolidated Net Income Cash Flow of the Company for the period (taken as one accounting period) from the beginning of the first fiscal quarter commencing after during which the date of the Senior Discount Note Indenture was executed to the end of the Company's most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such the Consolidated Net Income Cash Flow for such period is a deficit, less 100% of such the deficit), plus less 1.75 times the Consolidated Interest Expense of the Company since the beginning of the fiscal quarter during which the Senior Discount Note Indenture was executed; plus (iib) 100% of the aggregate net cash proceeds received by the Company since the beginning of the fiscal quarter during which the Senior Discount Note Indenture was executed as a contribution to its common equity capital or from the issue or sale since the date of the Indenture of Equity Interests of the Company or MSC (other than Disqualified StockStock and except to the extent such net cash proceeds are used to incur new Indebtedness outstanding pursuant to clause (11) of the second paragraph of Section 4.09 hereof) or from the issue or sale of Disqualified Stock or debt securities of the Company or MSC that have been converted into such Equity Interests (other than Equity Interests (or Disqualified Stock or convertible debt securities) sold to a Subsidiary of the Company and other than Disqualified Stock or convertible debt securities that have been converted into Disqualified Stock), plus ; plus (iiic) to the extent that any Restricted Investment that was made after the date of the Senior Discount Note Indenture is sold for cash or otherwise liquidated or repaid for cash, the lesser of (A) the cash return of capital with respect to such Restricted Investment (less the cost of disposition, if any) and (B) the initial amount of such Restricted Investment plus (iv) if any Unrestricted Subsidiary (A) is redesignated as a Restricted Subsidiary, the fair market value of such redesignated Subsidiary (as determined in good faith by the Board of Directors) as of the date of its redesignation or (B) pays any cash dividends or cash distributions to the Company or any of its Restricted Subsidiaries, 50% of any such cash dividends or cash distributions made after the date of the Indenture. The foregoing provisions 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 the Indenture; (ii) the redemption, repurchase, retirement, defeasance or other acquisition of any PARI PASSU or subordinated Indebtedness or Equity Interests of the Company or MSC in exchange for, or out of the net cash proceeds of the substantially concurrent sale or issuance (other than to a Restricted Subsidiary of the Company) of, other Equity Interests of the Company or MSC (other than any Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such redemption, repurchase, retirement, defeasance or other acquisition shall be excluded from clause (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 Equity Interests on a pro rata basis; (v) any repurchase of Equity Interests of the Company or MSC from present and former employees and directors of the Company or its Subsidiaries or MSC in an aggregate amount not to exceed $5 million; (vi) Permitted Investments; or (vii) other Restricted Payments in an aggregate amount not to exceed $5 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 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 covenant. 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 (as determined in good faith by the Board of Directors). 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 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 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, such determination to be based upon an opinion or appraisal issued by an accounting, appraisal or investment banking firm of national standing if such fair market value exceeds $10.0 million. Not later than 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 covenant were computed, together with a copy of any fairness opinion or appraisal required by the Indenture.:

Restricted Payments. From and after the date hereof the The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly: : (i1) declare or pay any dividend or make any other payment or distribution on account of the Company's or any of its Restricted Subsidiaries' Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company or any of its Restricted Subsidiaries) or to the direct or indirect holders of the Company's or any of its Restricted Subsidiaries' Equity Interests in their capacity as such (other than dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company or to the Company or a Restricted Subsidiary of the Company); ; (ii2) purchase, redeem or otherwise acquire or retire for value (including without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or any direct or indirect parent of the Company; Company (iiiother than any such Equity Interests owned by the Company or any of its Restricted Subsidiaries); (3) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness that is PARI PASSU with or subordinated to the Notes (other than the Notes and the 2003 Notes), except a payment of interest or principal at Stated Maturity; or or (iv4) make any Restricted Investment Investment, (all such payments and other actions set forth in these clauses (i1) through (iv4) above being collectively referred to as "RESTRICTED PAYMENTS"''Restricted Payments''), unless, at the time of and after giving effect to such Restricted Payment: (a1) no Default or Event of Default shall have has occurred and be is continuing or would occur as a consequence thereofof the Restricted Payment; and (b2) the Company would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, would have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Debt to Adjusted Consolidated Cash Flow Coverage Ratio test set forth in the first paragraph of Section 4.09 hereof; provided that the Company and its Restricted Subsidiaries shall not be required to comply with this clause (2) in order to make any Restricted Investment; and (c3) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after the date of the Indenture hereof (excluding Restricted Payments permitted by clauses (ii2), (3) and (iii4) of the next succeeding paragraphparagraph of exceptions below), is less than the sum of sum, without duplication, of: (ia) 50100% of the Consolidated Net Income Cash Flow of the Company for the period (taken as one accounting period) from the beginning of the first fiscal quarter commencing after the date of the during which this Indenture is executed to the end of the Company's most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such the Consolidated Net Income Cash Flow for such period is a deficit, less 100% of such the deficit), plus less 1.75 times the Consolidated Interest Expense of the Company since the beginning of the fiscal quarter during which this Indenture is executed; plus (iib) 100% of the aggregate net cash proceeds received by the Company since the beginning of the fiscal quarter during which this Indenture is executed as a contribution to its common equity capital or from the issue or sale since the date of the Indenture of Equity Interests of the Company or MSC (other than Disqualified StockStock and except to the extent such net cash proceeds are used to incur new Indebtedness outstanding pursuant to clause (11) of the second paragraph of Section 4.09 hereof) or from the issue or sale of Disqualified Stock or debt securities of the Company or MSC that have been converted into such Equity Interests (other than Equity Interests (or Disqualified Stock or convertible debt securities) sold to a Subsidiary of the Company and other than Disqualified Stock or convertible debt securities that have been converted into Disqualified Stock), plus ; plus (iiic) to the extent that any Restricted Investment that was made after the date of the Indenture hereof is sold for cash or otherwise liquidated or repaid for cash, the lesser of of: (A) the cash return of capital with respect to such the Restricted Investment (less the cost of disposition, if any) and ), and (B) the initial amount of such the Restricted Investment plus Investment; plus (ivd) if to the extent that any Unrestricted Subsidiary of the Company and all of its Subsidiaries are designated as Restricted Subsidiaries after the date hereof, the lesser of: (A) is redesignated as a Restricted Subsidiary, the fair market value of the Company's Investments in such redesignated Subsidiary (as determined in good faith by the Board of Directors) Subsidiaries as of the date of its redesignation or such designation; or (B) pays any cash dividends or cash distributions to the Company or any of its Restricted Subsidiaries, 50% of any such cash dividends or cash distributions made after the date of the Indenture. The foregoing provisions 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 the Indenture; (ii) the redemption, repurchase, retirement, defeasance or other acquisition of any PARI PASSU or subordinated Indebtedness or Equity Interests of the Company or MSC in exchange for, or out of the net cash proceeds of the substantially concurrent sale or issuance (other than to a Restricted Subsidiary of the Company) sum of, other Equity Interests of the Company or MSC (other than any Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such redemption, repurchase, retirement, defeasance or other acquisition shall be excluded from clause (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 Equity Interests on a pro rata basis; (v) any repurchase of Equity Interests of the Company or MSC from present and former employees and directors of the Company or its Subsidiaries or MSC in an aggregate amount not to exceed $5 million; (vi) Permitted Investments; or (vii) other Restricted Payments in an aggregate amount not to exceed $5 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 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 covenant. 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 (as determined in good faith by the Board of Directors). 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 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 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, such determination to be based upon an opinion or appraisal issued by an accounting, appraisal or investment banking firm of national standing if such fair market value exceeds $10.0 million. Not later than 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 covenant were computed, together with a copy of any fairness opinion or appraisal required by the Indenture.:

Restricted Payments. From and after the date hereof the (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiaries to, directly or indirectly: : (i1) declare or pay (without duplication) any dividend dividend, or make any other payment or distribution distribution, on account of the Company's ’s or any of its Restricted Subsidiaries' ’ Equity Interests (including any payment in connection with any merger or consolidation involving the Company or any of its Restricted Subsidiaries) or to the direct or indirect holders of the Company's ’s or any of its Restricted Subsidiaries' ’ Equity Interests in their capacity as such (other than dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company and other than dividends or distributions payable to the Company or a Restricted Subsidiary of the Company); ; (ii2) purchase, redeem or otherwise acquire or retire for value (including in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or any direct or indirect parent of the Company; ; (iii3) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Subordinated Indebtedness that is PARI PASSU with (excluding any intercompany Indebtedness between or subordinated to among the Notes (other than the Notes Company and the 2003 Notesany of its Restricted Subsidiaries), except a payment of interest or principal at the Stated MaturityMaturity thereof; or or (iv4) make any Restricted Investment (all such payments and other actions set forth in clauses (i1) through (iv4) above being collectively referred to as "RESTRICTED PAYMENTS"“Restricted Payments”), unless, at the time of and after giving effect to such Restricted Payment: (a1) no Default or Event of Default shall have has occurred and be is continuing or would occur as a consequence thereof; andof such Restricted Payment; (b2) the Company would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Debt to Cash Flow Coverage Ratio test set forth in the first paragraph of Section 4.09 4.09(a) hereof; and (c3) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after the date of the Indenture since November 3, 2006 (excluding Restricted Payments permitted by clauses (ii2), (3), (4), (5), (6), (7), (8), (9) and (iii12) of the next succeeding paragraphparagraph (b) of this Section 4.07), is less than the sum of sum, without duplication, of: (iA) 50100% of the Company’s Consolidated Net Income of the Company Cash Flow for the period (taken as one accounting period) from the beginning of the first fiscal quarter commencing after the date of the Indenture January 1, 2007 to the end of the Company's ’s most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficitPayment, less 100% the product of such deficit), plus 1.5 times the Company’s Consolidated Interest Expense for the same period; plus (iiB) 100% of the aggregate net cash proceeds received by the Company after November 3, 2006 as a contribution to its common equity capital or from the issue or sale since the date of the Indenture of Equity Interests of the Company or MSC (other than Disqualified Stock) or from the issue or sale of convertible or exchangeable Disqualified Stock or convertible or exchangeable debt securities of the Company or MSC that have been converted into or exchanged for such Equity Interests (other than Equity Interests (or Disqualified Stock or convertible debt securities) sold to a Subsidiary of the Company and other than Disqualified Stock or convertible debt securities that have been converted into Disqualified StockCompany), plus ; plus (iiiC) to the extent that any Restricted Investment that was made after the date of the Indenture November 3, 2006 is sold for cash or Cash Equivalents, or otherwise is liquidated or repaid for cashcash or Cash Equivalents, the lesser of (A) the cash return of capital with respect an amount equal to such Restricted Investment cash and Cash Equivalents; plus (less D) to the cost of disposition, if any) and (B) the initial amount of such Restricted Investment plus (iv) if extent that any Unrestricted Subsidiary (A) of the Company designated as such after November 3, 2006 is redesignated as a Restricted SubsidiarySubsidiary after November 3, 2006, the fair market value Fair Market Value of the Company’s Investment in such redesignated Subsidiary (as determined in good faith by the Board of Directors) as of the date of its redesignation or such redesignation, other than to the extent such Investment constituted a Permitted Investment; plus (BE) pays 100% of any cash dividends or cash distributions to actually received directly or indirectly by the Company or any a Restricted Subsidiary of its Restricted Subsidiariesthe Company that is a Guarantor after November 3, 50% 2006 from an Unrestricted Subsidiary of the Company, in each case, to the extent that such dividends, cash distributions or other property were not otherwise included in the Consolidated Net Income of the Company for such period and other than to the extent such Investment constituted a Permitted Investment; minus (F) the aggregate amount of any such cash dividends or cash distributions made after the date Net Equity Proceeds taken into account for purposes of incurring Indebtedness pursuant to clause (14) of the Indenture. The foregoing definition of “Permitted Debt” set forth in Section 4.09(b) hereof. (b) So long as no Default has occurred and is continuing or would be caused thereby, the provisions shall of Section 4.07(a) hereof will not prohibit prohibit: (i1) the payment of any dividend or the consummation of any irrevocable redemption within 60 days after the date of declaration thereofof the dividend or giving of the redemption notice, as the case may be, if at said the date of declaration such or notice, the dividend or redemption payment would have complied with the provisions of the Indenture; ; (ii2) the redemption, repurchase, retirement, defeasance or other acquisition making of any PARI PASSU or subordinated Indebtedness or Equity Interests of the Company or MSC Restricted Payment in exchange for, or out of the net cash proceeds of the substantially concurrent sale or issuance (other than to a Restricted Subsidiary of the Company) of, other Equity Interests of the Company or MSC (other than any Disqualified Stock)) or from the substantially concurrent contribution of common equity capital to the Company; provided that the amount of any such net cash proceeds that are utilized for any such redemption, Restricted Payment will be excluded from clause (3)(B) of Section 4.07(a) hereof; provided further that any Net Equity Proceeds (x) used for making a Restricted Investment pursuant to clause (10) of this Section 4.07(b) or (y) taken into account for purposes of incurring Indebtedness pursuant to clause (14) of the definition of “Permitted Debt” set forth in Section 4.09(b) hereof may not also be used to make a Restricted Payment pursuant to this clause (2); (3) the repurchase, retirementredemption, defeasance or other acquisition shall be excluded from clause (c) (ii) or retirement for value of Subordinated Indebtedness of the preceding paragraph; (iii) the defeasance, redemption, repurchase Company or other acquisition of PARI PASSU or subordinated Indebtedness any Subsidiary Guarantor with the net cash proceeds from an a substantially concurrent incurrence of Permitted Refinancing Indebtedness; ; (iv4) the payment of any dividend (or, in the case of any partnership or limited liability company, any similar distribution) by a Restricted Subsidiary of the Company to the holders of its Equity Interests on a pro rata basis; (5) the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of Parent, HoldCo, the Company, any Restricted Subsidiary of the Company or any direct or indirect parent of the Company held by any current or former officer, director, employee or consultant of Parent, HoldCo, the Company or any of its Restricted Subsidiaries pursuant to any equity subscription agreement, stock option agreement, shareholders’ agreement or similar agreement; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may not exceed an amount equal to $20.0 million in any twelve-month period; provided further, that such amount in any twelve-month period may be increased by an amount equal to (va) any repurchase the net cash proceeds contributed to the Company from the sale of Equity Interests of Parent to current or former members of management, directors, consultants or employees that occurs after the Company Issue Date plus (b) the net cash proceeds of key man life insurance policies received by Parent or MSC its Restricted Subsidiaries after the Issue Date; provided further, that such amount in any twelve month period shall be reduced by the amount of Indebtedness incurred in such twelve-month period pursuant to clause (22) of Section 4.09(b) hereof; (6) the repurchase, redemption or other acquisition or retirement of Equity Interests deemed to occur upon the exercise or exchange of stock options, warrants or other similar rights to the extent such Equity Interests represent a portion of the exercise or exchange price of those stock options, warrants or other similar rights, and the repurchase, redemption or other acquisition or retirement of Equity Interests made in lieu of withholding taxes resulting from present the vesting, exercise or exchange of stock options, warrants or other similar rights; (7) the declaration and former employees and directors payment of regularly scheduled or accrued dividends to holders of any class or series of Disqualified Stock of the Company or any Restricted Subsidiary of the Company issued on or after the Issue Date in accordance with the Debt to Cash Flow Ratio test described in Section 4.09(a) hereof; (8) Permitted Payments to Parent; (9) the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of Parent to the extent necessary to comply with law or to prevent the loss or secure the renewal or reinstatement of any FCC License held by the Company or any of its Subsidiaries Subsidiaries; (10) Restricted Investments in an amount equal to 100% of the aggregate amount of any Net Equity Proceeds, less the aggregate amount of any Net Equity Proceeds (x) used for making a Restricted Payment pursuant to clause (2) of this Section 4.07(b) or MSC (y) taken into account for purposes of incurring Indebtedness pursuant to clause (14) of the definition of “Permitted Debt” set forth in Section 4.09(b) hereof; (11) on and after the “Closing Date” (as defined in the Business Combination Agreement), Restricted Payments in connection with the “Cash Payment”, as defined in the Business Combination Agreement, in an aggregate amount not to exceed $5 million1.5 billion; and (vi) Permitted Investments; or (vii12) other Restricted Payments in an aggregate amount since the Issue Date not to exceed $5 75.0 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 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 covenant. 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 (as determined in good faith by the Board of Directors). 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 amount of all Restricted Payments (other than cash) shall will 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 by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value determination of the Fair Market Value of any non-cash Restricted Payment shall assets or securities that are required to be determined in good faith valued by the Board of Directors whose resolution with respect thereto shall this Section 4.07 will be delivered to the Trustee, such determination to be based upon an opinion or appraisal issued by an accounting, appraisal or investment banking firm of national standing if such fair market value exceeds $10.0 million. Not later than the date of making any Restricted Payment, the Company shall deliver in writing to the Trustee in an Officers' ’ Certificate stating that if the Fair Market Value of such assets or securities exceeds $50.0 million (excluding Restricted Payment is Payments permitted by clauses (2), (3), (6) and setting forth the basis upon which the calculations required by this covenant were computed, together with a copy (9) of any fairness opinion or appraisal required by the IndentureSection 4.07(b) hereof).