Common use of Limitations on Restricted Payments Clause in Contracts

Limitations on Restricted Payments. (a) Until the Notes are rated Investment Grade by both Rating Agencies (after which time the following covenant will no longer be in effect), the Company will not, and will not cause or permit any Restricted Subsidiary to, directly or indirectly, make any Restricted Payment unless: (i) no Default or Event of Default shall have occurred and be continuing at the time of or immediately after giving effect to such Restricted Payment; (ii) immediately after giving effect to such Restricted Payment, the Company could incur at least $1.00 of Indebtedness pursuant to Section 3.02(a) hereof; and (iii) immediately after giving effect to such Restricted Payment, the aggregate amount of all Restricted Payments (including the Fair Market Value of any non-cash Restricted Payment) declared or made after the Issue Date does not exceed the sum of (a) 50% of the Consolidated Net Income of the Company on a cumulative basis during the period (taken as one accounting period) from and including April 1, 1998 and ending on the last day of the Company's fiscal quarter immediately preceding the date of such Restricted Payment (or in the event such Consolidated Net Income shall be a deficit, minus 100% of such deficit), plus (b) 100% of the aggregate net cash proceeds of and the fair market value of Property received by the Company from (1) any capital contribution to the Company after June 9, 1997 or any issue or sale after June 9, 1997 of Qualified Stock (other than to any Subsidiary of the Company) and (2) the issue or sale after June 9, 1997 of any Indebtedness or other securities of the Company convertible into or exercisable for Qualified Stock of the Company that have been so converted or exercised, as the case may be, plus (c) $86.0 million, which is equal to the aggregate principal amount of the Company's 6-7/8% Convertible Subordinated Notes due 2002 that were converted into the Company's Common Equity prior to the Issue Date, plus (d) in the case of the disposition or repayment of any Investment constituting a Restricted Payment made after the June 9, 1997, an amount (to the extent not included in the calculation of the Consolidated Net Income referred to in (a)) equal to the lesser of (x) the return of capital with respect to such Investment (including by dividend, distribution or sale of Capital Stock) and (y) the amount of such Investment that was treated as a Restricted Payment, in either case, less the cost of the disposition or repayment of such Investment (to the extent not included in the calculation of the Consolidated Net Income referred to in (a)), plus (e) with respect to any Unrestricted Subsidiary that is redesignated as a Restricted Subsidiary after June 9, 1997 in accordance with the definition of Unrestricted Subsidiary (so long as the designation of such Subsidiary as an Unrestricted Subsidiary was treated as a Restricted Payment made after June 9, 1997 and only to the extent not included in the calculation of the Consolidated Net Income referred to in (a)), an amount equal to the lesser of (x) the proportionate interest of the Company or a Restricted Subsidiary in an amount equal to the excess of (I) the total assets of such Subsidiary, valued on an aggregate basis at the lesser of book value and Fair Market Value thereof, over (II) the total liabilities of such Subsidiary, determined in accordance with GAAP, and (y) the Designation Amount at the time of such Subsidiary's designation as an Unrestricted Subsidiary, plus (f) $50 million minus (g) the aggregate amount of all Restricted Payments (other than Restricted Payments referred to in clause (C) of the immediately succeeding paragraph) made after June 9, 1997 through the Issue Date. (b) Clauses (ii) and (iii) of paragraph (a) will not prohibit: (A) the payment of any dividend within 60 days of its declaration if such dividend could have been made on the date of its declaration without violation of the provisions of this Indenture; (B) the repurchase, redemption or retirement of any shares of Capital Stock of the Company in exchange for, or out of the net proceeds of the substantially concurrent sale (other than to a Subsidiary of the Company) of, other shares of Qualified Stock; and (C) 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 Subsidiary held by officers or employees or former officers or employees of the Company or any Subsidiary (or their estates or beneficiaries under their estates) not to exceed $20 million in the aggregate since the Issue Date; provided, however, that each Restricted Payment described in clauses (A) and (B) of this sentence shall be taken into account for purposes of computing the aggregate amount of all Restricted Payments pursuant to clause (iii) of paragraph (a). (c) For purposes of determining the aggregate and permitted amounts of Restricted Payments made, the amount of any guarantee of any Investment in any Person that was initially treated as a Restricted Payment and which was subsequently terminated or expired, net of any amounts paid by the Company or any Restricted Subsidiary in respect of such guarantee, shall be deducted. (d) In determining the "fair market value of Property" for purposes of clause (iii) of the paragraph (a), Property other than cash, Cash Equivalents and Marketable Securities shall be deemed to be equal in value to the "equity value" of the Capital Stock or other securities issued in exchange therefor. The "equity value" of such Capital Stock or other securities shall be equal to (i) the number of shares of Common Equity issued in the transaction (or issuable upon conversion or exercise of the Capital Stock or other securities issued in the transaction) multiplied by the closing sale price of the Common Equity on its principal market on the date of the transaction (less, in the case of Capital Stock or other securities which require the payment of consideration at the time of conversion or exercise, the aggregate consideration payable thereupon) or (ii) if the Common Equity is not then traded on the New York Stock Exchange, American Stock Exchange or Nasdaq National Market, or if the Capital Stock or other securities issued in the transaction do not consist of Common Equity (or Capital Stock or other securities convertible into or exercisable for Common Equity), the value of such Capital Stock or other securities as determined by a nationally recognized investment banking firm retained by the Board of Directors of the Company.

Limitations on Restricted Payments. (a) Until the Notes are rated Investment Grade by both Rating Agencies (after which time the following covenant will no longer be in effect), the The Company will shall not, and will shall not cause or permit any Restricted Subsidiary of its Subsidiaries to, directly or indirectly, : (i) declare or pay any dividend or make any distribution on account of the Company's or any of its Subsidiaries' Equity Interests (other than (w) Physician Joint Venture Distributions, (x) dividends or distributions payable in Qualified Equity Interests of the Company, (y) dividends or distributions payable to the Company or any Subsidiary of the Company, and (z) dividends or distributions by any Subsidiary of the Company payable to all holders of a class of Equity Interests of such Subsidiary on a PRO RATA basis); (ii) purchase, redeem or otherwise acquire or retire for value any Equity Interests of the Company; or (iii) make any principal payment on, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness that is subordinated to the Securities, except at the original final maturity date thereof or pursuant to a Specified Exchange or the Refinancing (all such payments and other actions set forth in clauses (i) through (iii) above being collectively referred to as "RESTRICTED PAYMENTS"), unless, at the time of and after giving effect to such Restricted Payment unless:(the amount of any such Restricted Payment, if other than cash, shall be the fair market value (as conclusively evidenced by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the Trustee within 60 days prior to the date of such Restricted Payment) of the asset(s) proposed to be transferred by the Company or such Subsidiary, as the case may be, pursuant to such Restricted Payment): (ia) 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 or immediately such Restricted Payment and after giving PRO FORMA effect to thereto as if such Restricted Payment; (ii) Payment had been made at the beginning of the most recently ended four full fiscal quarter period for which internal financial statements are available immediately after giving effect to preceding the date of such Restricted Payment, the Company could 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 3.02(a) 3.09 hereof; and (iiic) immediately after giving effect to such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Subsidiaries after March 1, 1995 (including excluding Restricted Payments permitted by clauses (ii), (iii) and (iv) of the Fair Market Value of any non-cash Restricted Payment) declared or made after the Issue Date does not exceed next succeeding paragraph), is less than the sum of (a1) 50% of the Consolidated Net Income of the Company on a cumulative basis during for the period (taken as one accounting period) from and including April the beginning of the first fiscal quarter commencing after March 1, 1998 and ending on 1995 to the last day end of the Company's most recently ended fiscal quarter immediately preceding for which internal financial statements are available at the date time of such Restricted Payment (or in the event or, if such Consolidated Net Income shall be for such period is a deficit, minus less 100% of such deficit), plus PLUS (b2) 100% of the aggregate net cash proceeds of and the fair market value of Property received by the Company from (1) any capital contribution to the Company after June 9, 1997 or any issue or sale after June 9, 1997 of Qualified Stock (other than to any a Subsidiary of the Company) and (2) since March 1, 1995 of Qualified Equity Interests of the issue Company or sale after June 9, 1997 of any Indebtedness or other debt securities of the Company convertible into or exercisable for Qualified Stock any of the Company its Subsidiaries that have been so converted into or exercised, as the case may be, plus (c) $86.0 million, which is equal to the aggregate principal amount exchanged for such Qualified Equity Interests of the Company's 6-7/8% Convertible Subordinated Notes due 2002 that were converted into the Company's Common Equity prior to the Issue Date, plus PLUS (d3) in the case $20.0 million. If no Default or Event of the disposition Default has occurred and is continuing, or repayment of any Investment constituting a Restricted Payment made after the June 9, 1997, an amount (to the extent not included in the calculation of the Consolidated Net Income referred to in (a)) equal to the lesser of (x) the return of capital with respect to such Investment (including by dividend, distribution or sale of Capital Stock) and (y) the amount of such Investment that was treated would occur as a Restricted Payment, in either case, less the cost of the disposition or repayment of such Investment (to the extent not included in the calculation of the Consolidated Net Income referred to in (a)), plus (e) with respect to any Unrestricted Subsidiary that is redesignated as a Restricted Subsidiary after June 9, 1997 in accordance with the definition of Unrestricted Subsidiary (so long as the designation of such Subsidiary as an Unrestricted Subsidiary was treated as a Restricted Payment made after June 9, 1997 and only to the extent not included in the calculation of the Consolidated Net Income referred to in (a)), an amount equal to the lesser of (x) the proportionate interest of the Company or a Restricted Subsidiary in an amount equal to the excess of (I) the total assets of such Subsidiary, valued on an aggregate basis at the lesser of book value and Fair Market Value consequence thereof, over (II) the total liabilities of such Subsidiary, determined in accordance with GAAP, and (y) foregoing provisions shall not prohibit the Designation Amount at the time of such Subsidiary's designation as an Unrestricted Subsidiary, plus (f) $50 million minus (g) the aggregate amount of all following Restricted Payments (other than Restricted Payments referred to in clause (C) of the immediately succeeding paragraph) made after June 9, 1997 through the Issue Date.Payments: (b) Clauses (ii) and (iii) of paragraph (a) will not prohibit: (Ai) the payment of any dividend within 60 days of its declaration if such dividend could have been made on after the date of its declaration without violation thereof, if at said date of declaration such payment would have complied with the provisions of this Indenture; hereof; (Bii) the payment of cash dividends on any series of Disqualified Stock issued after the Closing Date in an aggregate amount not to exceed the cash received by the Company since the Closing Date upon issuance of such Disqualified Stock; (iii) the redemption, repurchase, redemption retirement or retirement other acquisition of any shares of Capital Stock Equity Interests of the Company or any Subsidiary in exchange for, or out of the net cash proceeds of of, the substantially concurrent sale (other than to a Subsidiary of the Company) of, other shares of Qualified StockEquity Interests of the Company; and PROVIDED that the amount of any such net cash proceeds that are utilized for any such redemption, repurchase, retirement or other acquisition shall be excluded from clause (Cc)(2) of the preceding paragraph; (iv) the purchasedefeasance, redemption or repurchase of subordinated Indebtedness with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness or in exchange for or out of the net cash proceeds from the substantially concurrent sale (other than to a Subsidiary of the Company) of Qualified Equity Interests of the Company; PROVIDED that the amount of any such net cash proceeds that are utilized for any such redemption, repurchase, retirement or other acquisition shall be excluded from clause (c)(2) of the preceding paragraph; (v) the repurchase, redemption or other acquisition, cancellation acquisition or retirement for value of Capital Stock, or options, warrants, equity appreciation rights or other rights to purchase or acquire Capital Stock, any Equity Interests of the Company or any Subsidiary held by officers or employees or former officers or employees of the Company held by any member of the Company's (or any Subsidiary (of its Subsidiaries') management pursuant to any management equity subscription agreement or their estates stock option agreement; PROVIDED that the aggregate price paid for all such repurchased, redeemed, acquired or beneficiaries under their estates) retired Equity Interests shall not to exceed $20 15.0 million in any twelve-month period; and (vi) the aggregate since the Issue Date; provided, however, that each Restricted Payment described in clauses making and consummation of (A) and a senior subordinated asset sale offer in accordance with the provisions of the indenture relating to the 2005 Senior Subordinated Notes or (B) a Change of this sentence shall be taken into account for purposes of computing Control Offer with respect to the aggregate amount of all Restricted Payments pursuant to clause (iii) of paragraph (a). (c) For purposes of determining Senior Subordinated Notes in accordance with the aggregate and permitted amounts of Restricted Payments made, the amount of any guarantee of any Investment in any Person that was initially treated as a Restricted Payment and which was subsequently terminated or expired, net of any amounts paid by the Company or any Restricted Subsidiary in respect of such guarantee, shall be deducted. (d) In determining the "fair market value of Property" for purposes of clause (iii) provisions of the paragraph (a), Property other than cash, Cash Equivalents and Marketable Securities shall be deemed to be equal in value Senior Subordinated Note Indenture or change of control offer with respect to the "equity value" 2005 Senior Subordinated Notes or the 2005 Exchangeable Subordinated Notes in accordance with the provisions of the Capital Stock or other securities issued in exchange thereforindentures relating thereto. The "equity value" of such Capital Stock or other securities shall be equal to (i) the number of shares of Common Equity issued in the transaction (or issuable upon conversion or exercise of the Capital Stock or other securities issued in the transaction) multiplied by the closing sale price of the Common Equity on its principal market on Not later than the date of the transaction (less, in the case of Capital Stock or other securities which require the payment of consideration at the time of conversion or exercisemaking any Restricted Payment, the aggregate consideration payable thereupon) or (ii) if Company shall deliver to the Common Equity Trustee an Officers' Certificate stating that such Restricted Payment is not then traded on permitted and setting forth the New York Stock Exchange, American Stock Exchange or Nasdaq National Market, or if basis upon which the Capital Stock or other securities issued in the transaction do not consist of Common Equity (or Capital Stock or other securities convertible into or exercisable for Common Equity), the value of such Capital Stock or other securities as determined calculations required by a nationally recognized investment banking firm retained by the Board of Directors of the Companythis covenant were computed.

Limitations on Restricted Payments. (a) Until the Notes are rated Investment Grade by both Rating Agencies (after which time the following covenant will no longer be in effect), the Company The Issuer will not, and will not cause or permit any Restricted Subsidiary to, directly or indirectly, make any Restricted Payment unlessif at the time of such Restricted Payment: (i) no Default or Event of A Default shall have occurred and be continuing at the time of or immediately after giving effect to such Restricted Payment;shall occur as a consequence thereof; or (ii) immediately after giving effect to The amount of such Restricted Payment, the Company could incur at least $1.00 of Indebtedness pursuant when added to Section 3.02(a) hereof; and (iii) immediately after giving effect to such Restricted Payment, the aggregate amount of all other Restricted Payments (including the Fair Market Value of any non-cash Restricted Payment) declared or made after the Original Issue Date does not exceed (other than Restricted Payments made pursuant to clause (ii), (iii), (iv), (v), (vi), (viii), (ix), (x) or (xi)(B) of Section 6.09(b)), exceeds the sum (the “Restricted Payments Basket”) of (awithout duplication): (1) 50% of the Consolidated Net Income of the Company on a cumulative basis during for the period (taken as one accounting period) from and including April 1, 1998 and ending on the last day beginning of the Company's first fiscal quarter immediately preceding commencing after the date Original Issue Date to the end of such Restricted Payment the Issuer’s most recently ended fiscal quarter for which consolidated financial statements are available (or in the event or, if such Consolidated Net Income shall be a deficit, minus 100% of such aggregate deficit), plus plus (b2) Subject to Section 6.09(b)(ii), 100% of the aggregate net cash proceeds of and the fair market value of Property received by the Company Issuer and 100% of the Fair Market Value at the time of receipt of assets other than cash, if any, received by the Issuer, either (x) as contributions to the common equity of the Issuer after the Original Issue Date or (y) from the issuance and sale of Qualified Equity Interests after the Original Issue Date, other than (1a) any capital contribution to such proceeds or assets received from a Subsidiary of the Company after June 9Issuer; (b) Excluded Contributions; or (c) Designated Preferred Stock, 1997 or any issue or sale after June 9, 1997 of Qualified Stock plus (3) The aggregate amount by which Indebtedness (other than any Subordinated Indebtedness) incurred by the Issuer or any Restricted Subsidiary subsequent to any the Original Issue Date is reduced on the Issuer’s balance sheet upon the conversion or exchange (other than by a Subsidiary of the CompanyIssuer) and into Qualified Equity Interests (2) less the issue or sale after June 9, 1997 amount of any Indebtedness cash, or the fair value of assets, distributed by the Issuer or any Restricted Subsidiary upon such conversion or exchange (other securities than payments of the Company convertible into or exercisable for Qualified Stock of the Company that have been so converted or exercisedinterest with respect thereto)), as the case may be, plus plus (c4) $86.0 million, which is equal to the aggregate principal amount of the Company's 6-7/8% Convertible Subordinated Notes due 2002 that were converted into the Company's Common Equity prior to the Issue Date, plus (d) in In the case of the disposition or repayment of or return on any Investment constituting that was treated as a Restricted Payment made after the June 9, 1997Original Issue Date, an amount (to the extent not included in the calculation computation of the Consolidated Net Income referred to in (a)Income) equal to the lesser of (xi) 100% of the aggregate amount received by the Issuer or any Restricted Subsidiary in cash or other property (valued at the Fair Market Value thereof) as the return of capital with respect to such Investment (including by dividend, distribution or sale of Capital Stock) and (yii) the amount of such Investment that was treated as a Restricted Payment, in either case, less the cost plus (5) Upon a Redesignation of the disposition or repayment of such Investment (to the extent not included in the calculation of the Consolidated Net Income referred to in (a)), plus (e) with respect to any an Unrestricted Subsidiary that is redesignated as a Restricted Subsidiary after June 9Subsidiary, 1997 in accordance with the definition of Unrestricted Subsidiary (so long as the designation of such Subsidiary as an Unrestricted Subsidiary was treated as a Restricted Payment made after June 9, 1997 and only to the extent not included in the calculation of the Consolidated Net Income referred to in (a)), an amount equal to the lesser of (xi) the proportionate interest of the Company or a Restricted Subsidiary in an amount equal to the excess of (I) the total assets of such Subsidiary, valued on an aggregate basis at the lesser of book value and Fair Market Value thereof, over (II) of the total liabilities of Issuer’s proportionate interest in such Subsidiary, determined in accordance with GAAPSubsidiary immediately following such Redesignation, and (y) the Designation Amount at the time of such Subsidiary's designation as an Unrestricted Subsidiary, plus (f) $50 million minus (gii) the aggregate amount of all the Issuer’s Investments in such Subsidiary to the extent such Investments reduced the Restricted Payments (other than Restricted Payments referred to in clause (C) of the immediately succeeding paragraph) made after June 9, 1997 through the Issue DateBasket and were not previously repaid or otherwise reduced. (b) Clauses (ii) and (iii) of paragraph (a) The foregoing provisions will not prohibit: : (Ai) The payment by the payment Issuer or any Restricted Subsidiary of any dividend or the consummation of any redemption within 60 days after the date of its declaration of the dividend or giving or any redemption notice, if such dividend could have been made on the date of its declaration without violation of or notice, the payment or redemption would have complied with the provisions of this Indenture; ; (Bii) the repurchase, redemption or retirement The making of any shares of Capital Stock of the Company Restricted Payment in exchange for, or out of or with the net cash proceeds of the substantially concurrent issuance and sale (other than to a Subsidiary of the CompanyIssuer) of, other shares Qualified Equity Interests of the Issuer or from the substantially concurrent contribution of common equity capital to the Issuer; provided, that net cash proceeds from the issuance and sale of Qualified Stock; and Equity Interests or from contributions to equity capital of the Issuer under this clause (Cii) shall not be included for purpose of calculating amounts under Section 6.09(a)(ii)(2); (iii) The redemption of Subordinated Indebtedness of the purchase, redemption Issuer or other acquisition, cancellation or retirement for value of Capital Stockany Restricted Subsidiary (a) in exchange for, or options, warrants, equity appreciation rights or other rights to purchase or acquire Capital Stock, out of the Company proceeds of the substantially concurrent issuance and sale of, Qualified Equity Interests or any Subsidiary (b) in exchange for, or out of the proceeds of the substantially concurrent incurrence of, Refinancing Indebtedness permitted to be incurred under Section 6.08 and the other terms of this Indenture; (iv) Payments by the Issuer to redeem Equity Interests of the Issuer held by officers officers, directors or employees or former officers officers, directors or employees of the Company or any Subsidiary (or their transferees, estates or beneficiaries under their estates) not to exceed $20 million in the aggregate since the Issue Date), upon their death, disability, retirement, severance or termination of employment or service; provided, howeverthat the aggregate cash consideration paid for all such redemptions shall not exceed the sum of (A) $2.0 million during any calendar year (with unused amounts being available to be used in the following calendar year, but not in any succeeding calendar year) plus (B) the amount of any net cash proceeds received by or contributed to the Issuer from the issuance and sale after the Original Issue Date of Qualified Equity Interests of the Issuer to its officers, directors or employees that have not been applied to the payment of Restricted Payments pursuant to this clause (iv), plus (C) the net cash proceeds of any “key-man” life insurance policies that have not been applied to the payment of Restricted Payments pursuant to this clause (iv); (v) Payments of cash, dividends, distributions, advances or other Restricted Payments by the Issuer or any Restricted Subsidiary to allow the payment of cash in lieu of the issuance of fractional shares or upon the purchase, redemption or acquisition of fractional shares, including in connection with (i) the exercise of options or warrants, (ii) the conversion or exchange of Equity Interests, (iii) stock dividends, splits or combinations or business combinations or (iv) the conversion of the Convertible Notes or any payment made with respect thereto; (vi) Repurchases of Equity Interests (i) deemed to occur upon the exercise of stock options or other similar stock-based awards under equity plans of the Issuer or any of the Issuer’s Restricted Subsidiaries, warrants or other Equity Interests to the extent such Equity Interests represent a portion of the exercise price of those stock options, other similar stock-based awards under equity plans of the Issuer or any Restricted Subsidiary, warrants or other Equity Interests or (ii) in connection with a gross up for tax withholding related to such Equity Interests; (vii) Additional Restricted Payments of $5.0 million; (viii) Restricted Payments that are made with Excluded Contributions; (ix) The redemption of Indebtedness that is contractually subordinated to the Notes pursuant to provisions similar to those described in Section 3.01 or Section 6.11 hereof; provided that, prior to such redemption, the Issuer (or a third party to the extent permitted by this Indenture) has made a Change of Control Offer or Asset Sale Offer, as the case may be, with respect to the Notes as a result of such Change of Control or Asset Sale, as the case may be, and has repurchased all Notes validly tendered and not withdrawn in connection with such Change of Control Offer or Asset Sale Offer, as the case may be; (x) The distribution, as a dividend or otherwise, of shares of Capital Stock of, or Indebtedness owed to the Issuer or a Restricted Subsidiary of the Issuer by, Unrestricted Subsidiaries; (xi) Any Restricted Payment made in connection with (A) the Transactions or (B) the Exchange Transactions; or (xii) Payments and distributions to dissenting stockholders pursuant to applicable law, pursuant to or in connection with a consolidation, merger or transfer of all or substantially all of the assets of the Issuer and its Restricted Subsidiaries taken as a whole that complies with the terms of this Indenture, including Article Seven hereof; provided, that each no issuance and sale of Qualified Equity Interests pursuant to clause (ii), (iii) or (iv)(B) above shall increase the Restricted Payments Basket. For purposes of determining compliance with this Section 6.09, in the event that a Restricted Payment meets the criteria of more than one of the categories of Restricted Payments described in clauses (Ai) and through (Bxii) of this sentence shall Section 6.09(b) hereof, or is entitled to be taken into account for purposes of computing the aggregate amount of all Restricted Payments incurred pursuant to clause (iiiSection 6.09(a) of paragraph (a). (c) For purposes of determining the aggregate and permitted amounts of Restricted Payments madehereof, the amount of any guarantee of any Investment in any Person that was initially treated as a Issuer will be entitled to classify such Restricted Payment and which was subsequently terminated or expired, net of any amounts paid by the Company or any Restricted Subsidiary in respect of such guarantee, shall be deducted. (d) In determining the "fair market value of Property" for purposes of clause (iii) of the paragraph (a), Property other than cash, Cash Equivalents and Marketable Securities shall be deemed to be equal in value to the "equity value" of the Capital Stock or other securities issued in exchange therefor. The "equity value" of such Capital Stock or other securities shall be equal to (i) the number of shares of Common Equity issued in the transaction (or issuable upon conversion or exercise of the Capital Stock or other securities issued in the transactionportion thereof) multiplied by the closing sale price of the Common Equity on its principal market on the date of the transaction (less, in the case of Capital Stock its payment or other securities which require the payment of consideration at the time of conversion or exercise, the aggregate consideration payable thereupon) or (ii) if the Common Equity is not then traded on the New York Stock Exchange, American Stock Exchange or Nasdaq National Market, or if the Capital Stock or other securities issued in the transaction do not consist of Common Equity later reclassify such Restricted Payment (or Capital Stock or other securities convertible into or exercisable for Common Equity), the value of such Capital Stock or other securities as determined by a nationally recognized investment banking firm retained by the Board of Directors of the Companyportion thereof) in any manner that complies with this Section 6.09.

Limitations on Restricted Payments. (a) Until the Notes are rated Investment Grade by both Rating Agencies (after which time the following covenant will no longer be in effect), the Company will The Parent shall not, and will shall not cause or permit any Restricted Subsidiary to, directly or indirectly, make any Restricted Payment unless: (i1) no Default or Event of Default shall have occurred and be continuing at the time of or immediately after giving effect to such Restricted Payment; (ii2) immediately after giving effect to such Restricted Payment, the Company Parent could incur at least $1.00 of additional Indebtedness pursuant to Section 3.02(a) hereofthe Ratio Exception; and (iii3) immediately after giving effect to the amount of such Restricted Payment, when added to the aggregate amount of all other Restricted Payments (including the Fair Market Value of any non-cash Restricted Payment) declared or made after the Issue Date November 8, 2012 (other than Restricted Payments made pursuant to Section 4.04(b) (2), (3), (4), (5), (6), or (7)), does not exceed the sum (the “Restricted Payments Basket”) of (awithout duplication): (A) 50% of the Consolidated Net Income of the Company on a cumulative basis during for the period (taken as one accounting period) from October 1, 2012 to and including April 1, 1998 and ending on the last day of the Company's fiscal quarter ended immediately preceding prior to the date of such Restricted Payment calculation for which consolidated financial statements are available (or in the event or, if such Consolidated Net Income shall be a deficit, minus 100% of such aggregate deficit), plus plus (bB) 100% of the aggregate net cash proceeds or the Fair Market Value (as determined by the Board of and the fair market value Directors of Property Parent) of any assets to be used in a Permitted Business received by the Company from Parent either (1x) any capital contribution as contributions to the Company common equity of the Parent after June 9November 8, 1997 2012 or (y) from the issuance and sale of Qualified Equity Interests after November 8, 2012, plus (C) the aggregate amount by which Indebtedness of the Parent or any issue Restricted Subsidiary is reduced on the Parent’s balance sheet upon the conversion or sale after June 9, 1997 of Qualified Stock exchange (other than to any by a Subsidiary of the CompanyParent) and of Indebtedness issued subsequent to November 8, 2012 into Qualified Equity Interests (2) less the issue or sale after June 9, 1997 amount of any Indebtedness cash, or other securities the fair value of assets, distributed by the Company convertible into Parent or exercisable for Qualified Stock of the Company that have been so converted any Restricted Subsidiary upon such conversion or exercisedexchange), as the case may be, plus plus (c) $86.0 million, which is equal to the aggregate principal amount of the Company's 6-7/8% Convertible Subordinated Notes due 2002 that were converted into the Company's Common Equity prior to the Issue Date, plus (dD) in the case of the disposition or repayment of or return on any Investment constituting that was treated as a Restricted Payment made after the June 9November 8, 19972012, an amount (to the extent not included in the calculation computation of the Consolidated Net Income referred to in (a)Income) equal to the lesser of (xi) the return of capital with respect to such Investment (including by dividend, distribution or sale of Capital Stock) and (yii) the amount of such Investment that was treated as a Restricted Payment, in either case, less the cost of the disposition or repayment of such Investment and net of taxes, plus (E) upon a Redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary, the lesser of (i) the Fair Market Value of the Parent’s proportionate interest in such Subsidiary immediately following such Redesignation, and (ii) the aggregate amount of the Parent’s Investments in such Subsidiary to the extent such Investments reduced the amount available for subsequent Restricted Payments under this Section 4.04(a)(E) and were not included in the calculation previously repaid or otherwise reduced, plus (F) 100% of the Consolidated Net Income referred principal amount of, or, if issued at a discount, the accreted value of, any guarantee by the Parent or any Restricted Subsidiary incurred after November 8, 2012 that is subsequently released (other than due to in (a)a payment on such guarantee), plus (e) with respect but only to any Unrestricted Subsidiary the extent that is redesignated as a Restricted Subsidiary after June 9, 1997 in accordance with the definition of Unrestricted Subsidiary (so long as the designation of such Subsidiary as an Unrestricted Subsidiary guarantee was treated as a Restricted Payment pursuant to this paragraph (a) when made. (b) The provisions of Section 4.04(a) shall not prohibit: (1) the payment by the Parent or any Restricted Subsidiary of any dividend or similar distribution within 60 days after the date of declaration thereof, if on the date of declaration the payment would have complied with the provisions of this Indenture; (2) the making of any Restricted Payment in exchange for, or out of the proceeds of the substantially concurrent issuance and sale of, Qualified Equity Interests (other than to the Parent or any of its Subsidiaries); (3) the repurchase, redemption, defeasance or other acquisition or retirement for value of Subordinated Indebtedness of the Parent or any Restricted Subsidiary in exchange for, or out of the proceeds of the substantially concurrent incurrence of, Refinancing Indebtedness permitted to be incurred under Section 4.03 and the other terms of this Indenture; (4) the repurchase, redemption, defeasance or other acquisition or retirement for value of Equity Interests of the Parent held by officers, directors or employees or former officers, directors or employees (or their transferees, estates or beneficiaries under their estates), upon their bankruptcy or petition for bankruptcy, death, disability, retirement, severance or termination of employment or service or any other repurchase event set forth in a written agreement between Parent and such individual evidencing such Equity Interest as of the Issue Date; provided that the aggregate cash consideration paid for all such redemptions shall not exceed $4,000,000 during any calendar year; (5) repurchases of Equity Interests deemed to occur upon the exercise of stock options or stock appreciation rights if the Equity Interests represents a portion of the exercise price thereof; (6) the repurchase of Equity Interests upon vesting of restricted stock, restricted stock units, performance share units or similar equity incentives to satisfy tax withholding or similar tax obligations with respect thereto; or (7) Restricted Payments in an aggregate amount, when taken together with all Restricted Payments made after June 9pursuant to this Section 4.04(b)(7) and then outstanding, 1997 does not exceed $20,000,000. provided that no issuance and only sale of Qualified Equity Interests pursuant to Section 4.04(b)(2) or (3) shall increase the Restricted Payments Basket, except to the extent not included in the calculation of proceeds thereof exceed the Consolidated Net Income referred amounts used to in (a)), an amount equal to effect the lesser of (x) the proportionate interest of the Company or a Restricted Subsidiary in an amount equal to the excess of (I) the total assets of such Subsidiary, valued on an aggregate basis at the lesser of book value and Fair Market Value thereof, over (II) the total liabilities of such Subsidiary, determined in accordance with GAAP, and (y) the Designation Amount at the time of such Subsidiary's designation as an Unrestricted Subsidiary, plus (f) $50 million minus (g) the aggregate transactions described therein. The amount of all Restricted Payments (other than Restricted Payments referred to in clause (C) of the immediately succeeding paragraph) made after June 9, 1997 through the Issue Date. (b) Clauses (ii) and (iii) of paragraph (acash) will not prohibit: (A) be the payment of any dividend within 60 days of its declaration if such dividend could have been made on the date of its declaration without violation of the provisions of this Indenture; (B) the repurchase, redemption or retirement of any shares of Capital Stock of the Company in exchange for, or out of the net proceeds of the substantially concurrent sale (other than to a Subsidiary of the Company) of, other shares of Qualified Stock; and (C) 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 Subsidiary held by officers or employees or former officers or employees of the Company or any Subsidiary (or their estates or beneficiaries under their estates) not to exceed $20 million in the aggregate since the Issue Date; provided, however, that each Restricted Payment described in clauses (A) and (B) of this sentence shall be taken into account for purposes of computing the aggregate amount of all Restricted Payments pursuant to clause (iii) of paragraph (a). (c) For purposes of determining the aggregate and permitted amounts of Restricted Payments made, the amount of any guarantee of any Investment in any Person that was initially treated as a Restricted Payment and which was subsequently terminated or expired, net of any amounts paid by the Company or any Restricted Subsidiary in respect of such guarantee, shall be deducted. (d) In determining the "fair market value of Property" for purposes of clause (iii) of the paragraph (a), Property other than cash, Cash Equivalents and Marketable Securities shall be deemed to be equal in value to the "equity value" of the Capital Stock or other securities issued in exchange therefor. The "equity value" of such Capital Stock or other securities shall be equal to (i) the number of shares of Common Equity issued in the transaction (or issuable upon conversion or exercise of the Capital Stock or other securities issued in the transaction) multiplied by the closing sale price of the Common Equity on its principal market Fair Market Value on the date of the transaction (lessRestricted Payment of the asset(s) or securities proposed to be transferred or issued by the Parent or a Restricted Subsidiary of the Parent, in as the case of Capital Stock or other securities which require may be, pursuant to the payment of consideration at the time of conversion or exercise, the aggregate consideration payable thereupon) or (ii) if the Common Equity is not then traded on the New York Stock Exchange, American Stock Exchange or Nasdaq National Market, or if the Capital Stock or other securities issued in the transaction do not consist of Common Equity (or Capital Stock or other securities convertible into or exercisable for Common Equity), the value of such Capital Stock or other securities as determined by a nationally recognized investment banking firm retained by the Board of Directors of the CompanyRestricted Payment.

Limitations on Restricted Payments. (a) Until the Notes are rated Investment Grade by both Rating Agencies (after which time the following covenant will no longer be in effect), the Company will The Issuer shall not, and will shall not cause or permit any Restricted Subsidiary to, directly or indirectly, make any Restricted Payment unlessif at the time of such Restricted Payment: (i1) no Default or Event of a Default shall have occurred and be continuing at the time of or immediately shall occur as a consequence thereof; (2) after giving pro forma effect to such Restricted Payment; (ii) immediately after giving effect to Payment as if such Restricted PaymentPayment had been made at the beginning of the applicable Four-Quarter Period, the Company could Issuer is not able to incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) pursuant to Section 3.02(a) hereofthe Coverage Ratio Exception; andor (iii3) immediately after giving effect to the amount of such Restricted Payment, when added to the aggregate amount of all other Restricted Payments (including the Fair Market Value of any non-cash Restricted Payment) declared or made after the Issue Date does not exceed April 3, 2012 (other than Restricted Payments made pursuant to clauses (2) through (10) of clause (b) of this Section 4.11), exceeds the sum (the “Restricted Payments Basket”) of (awithout duplication): (A) 50% of the Consolidated Net Income of the Company on a cumulative basis during for the period (taken as one accounting period) from and including commencing on April 1, 1998 2012 to and ending on including the last day of the Company's fiscal quarter ended immediately preceding prior to the date of such Restricted Payment calculation for which consolidated financial statements are available (or in the event or, if such Consolidated Net Income shall be a deficit, minus 100% of such deficit), plus plus (bB) 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 Issuer), (y) Equity Interests of a Person (other than the Issuer or a Subsidiary of the Issuer) engaged in a Permitted Business and (z) other assets used in any Permitted Business, in the fair market value case of Property clauses (i) and (ii), received by the Company from (1) any capital Issuer or its Restricted Subsidiaries since April 3, 2012 as a contribution to the Company after June 9, 1997 its common equity capital or any issue or sale after June 9, 1997 of Qualified Stock (other than to any Subsidiary of the Company) and (2) from the issue or sale after June 9, 1997 of any Indebtedness Qualified Equity Interests of the Issuer or other from the issue or sale of convertible or exchangeable Disqualified Equity Interests or convertible or exchangeable debt securities of the Company convertible into or exercisable for Qualified Stock of the Company Issuer that have been so converted into or exercisedexchanged for such Qualified Equity Interests (other than Equity Interests or debt securities sold to a Subsidiary of the Issuer and Excluded Contributions) and (B) the aggregate net cash proceeds, if any, received by the Issuer or any of its Restricted Subsidiaries upon any conversion or exchange described in clause (A) above, plus (C) 100% of (A) the aggregate amount by which Indebtedness (other than any Subordinated Indebtedness) of the Issuer or any Restricted Subsidiary is reduced on the Issuer’s consolidated balance sheet upon the conversion or exchange after April 3, 2012 of any such Indebtedness into or for Qualified Equity Interests of the Issuer and (B) the aggregate net cash proceeds, if any, received by the Issuer or any of its Restricted Subsidiaries upon any conversion or exchange described in clause (A) above, plus (D) with respect to Restricted Investments made by the Issuer and its Restricted Subsidiaries after April 3, 2012, an amount equal to the sum, without duplication, 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 Issuer or any Restricted Subsidiary, (ii) other repurchases, repayments or redemptions of such Restricted Investments, (iii) the sale of any such Restricted Investment to a purchaser other than the Issuer or a Subsidiary or (iv) the release of any guarantee (except to the extent any amounts are paid under such guarantee) that constituted a Restricted Investment plus (B) with respect to any Unrestricted Subsidiary designated as such after April 3, 2012 and redesignated as a Restricted Subsidiary after April 3, 2012, the Fair Market Value of the Issuer’s Investment in such Subsidiary held by the Issuer or any of its Restricted Subsidiaries at the time of such redesignation. (b) Notwithstanding the foregoing, the provisions set forth in clause (a) of this Section 4.11 will not prohibit: (1) the payment of (a) any dividend or redemption payment or the making of any distribution within 60 days after the date of declaration thereof if, on the date of declaration, the dividend, redemption or distribution payment, as the case may be, plus (c) $86.0 million, which is equal to the aggregate principal amount of the Company's 6-7/8% Convertible Subordinated Notes due 2002 that were converted into the Company's Common Equity prior to the Issue Date, plus (d) in the case of the disposition or repayment of any Investment constituting a Restricted Payment made after the June 9, 1997, an amount (to the extent not included in the calculation of the Consolidated Net Income referred to in (a)) equal to the lesser of (x) the return of capital would have complied with respect to such Investment (including by dividend, distribution or sale of Capital Stock) and (y) the amount of such Investment that was treated as a Restricted Payment, in either case, less the cost of the disposition or repayment of such Investment (to the extent not included in the calculation of the Consolidated Net Income referred to in (a)), plus (e) with respect to any Unrestricted Subsidiary that is redesignated as a Restricted Subsidiary after June 9, 1997 in accordance with the definition of Unrestricted Subsidiary (so long as the designation of such Subsidiary as an Unrestricted Subsidiary was treated as a Restricted Payment made after June 9, 1997 and only to the extent not included in the calculation of the Consolidated Net Income referred to in (a)), an amount equal to the lesser of (x) the proportionate interest of the Company or a Restricted Subsidiary in an amount equal to the excess of (I) the total assets of such Subsidiary, valued on an aggregate basis at the lesser of book value and Fair Market Value thereof, over (II) the total liabilities of such Subsidiary, determined in accordance with GAAP, and (y) the Designation Amount at the time of such Subsidiary's designation as an Unrestricted Subsidiary, plus (f) $50 million minus (g) the aggregate amount of all Restricted Payments (other than Restricted Payments referred to in clause (C) of the immediately succeeding paragraph) made after June 9, 1997 through the Issue Date. (b) Clauses (ii) and (iii) of paragraph (a) will not prohibit: (A) the payment of any dividend within 60 days of its declaration if such dividend could have been made on the date of its declaration without violation of the provisions of this Indenture; Indenture or (Bb) any dividend or similar distribution by a Restricted Subsidiary to the holders of its Equity Interests on a pro rata basis or on a basis more favorable to the Issuer; (2) the repurchase, redemption or retirement acquisition of any shares of Capital Stock Equity Interests of the Company Issuer or any Restricted Subsidiary in exchange for, or out of the net proceeds of the substantially concurrent issuance and sale (other than to a Subsidiary of the Company) of, other shares of Qualified Stock; and Equity Interests; (C3) the purchase, redemption repurchase, redemption, defeasance or other acquisition, cancellation acquisition or retirement for value of Capital StockSubordinated Indebtedness of the Issuer or any Restricted Subsidiary (including the payment of any required premium and any fees and expenses incurred in connection with such purchase, repurchase, redemption, defeasance, other acquisition or retirement for value) (a) in exchange for, or optionsout of the proceeds of the substantially concurrent issuance and sale of, warrantsQualified Equity Interests, equity appreciation rights (b) in exchange for, or out of the proceeds of the substantially concurrent incurrence of, Refinancing Indebtedness permitted to be incurred under Section 4.10 and the other terms of this Indenture or (c) upon a Change of Control or in connection with an Asset Sale to the extent required by the agreement governing such Subordinated Indebtedness but only if the Issuer shall have complied with Section 4.12 and Section 4.15 and purchased all Notes validly tendered pursuant to the relevant offer prior to purchasing, repurchasing, redeeming, defeasing or acquiring or retiring for value such Subordinated Indebtedness; (4) the redemption, repurchase or other rights to purchase acquisition or acquire Capital Stock, retirement for value of Equity Interests of the Company or any Subsidiary Issuer held by officers officers, directors or employees or former officers officers, directors or employees of the Company or any Subsidiary (or their transferees, estates or beneficiaries under their estates), either (x) upon any such individual’s death, disability, retirement, severance or termination of employment or service or (y) pursuant to any equity subscription agreement, stock option agreement, stockholders’ agreement or similar agreement; provided, in any case, that the aggregate cash consideration paid for all such redemptions, repurchases or other acquisitions or retirements shall not exceed (A) $10.0 million during any calendar year (with unused amounts in any calendar year being carried forward to the next succeeding calendar year but not any subsequent years) plus (B) the amount of any net cash proceeds received by or contributed to the Issuer from the issuance and sale after the Issue Date of Qualified Equity Interests of the Issuer to its officers, directors or employees that have not been applied to the payment of Restricted Payments pursuant to this clause (4), plus (C) the net cash proceeds of any “key-man” life insurance policies that have not been applied to the payment of Restricted Payments pursuant to this clause (4); (a) repurchases, redemptions or other acquisitions or retirements for value of Equity Interests deemed to occur upon the exercise of stock options, warrants, rights to acquire Equity Interests or other convertible securities to the extent such Equity Interests represent a portion of the exercise or exchange price thereof and (b) any repurchases, redemptions or other acquisitions or retirements for value of Equity Interests made in lieu of withholding taxes in connection with any exercise or exchange of stock options, warrants or other similar rights; (6) dividends on Preferred Stock or Disqualified Equity Interests issued in compliance with Section 4.10 to the extent such dividends are included in the definition of Consolidated Interest Expense; (7) the payment of cash in lieu of fractional Equity Interests; (8) payments or distributions to dissenting stockholders pursuant to applicable law in connection with a merger, consolidation or transfer of assets that complies with the provisions of Article 5; (9) Restricted Payments with Excluded Contributions; or (10) payment of other Restricted Payments in an aggregate amount since April 3, 2012 not to exceed $20 million in the aggregate since the Issue Date25.0 million; provided, however, provided that each Restricted Payment described in clauses (A) and (B) of this sentence shall be taken into account for purposes of computing the aggregate amount of all Restricted Payments pursuant to clause (iii) of paragraph (a). (c) For purposes of determining the aggregate and permitted amounts of Restricted Payments made, the amount of any guarantee of any Investment in any Person that was initially treated as a Restricted Payment and which was subsequently terminated or expired, net of any amounts paid by the Company or any Restricted Subsidiary in respect of such guarantee, shall be deducted. (d) In determining the "fair market value of Property" for purposes of clause (iii) of the paragraph (a), Property other than cash, Cash Equivalents and Marketable Securities shall be deemed to be equal in value to the "equity value" of the Capital Stock or other securities issued in exchange therefor. The "equity value" of such Capital Stock or other securities shall be equal to (i) the number of shares of Common Equity issued in the transaction (or issuable upon conversion or exercise of the Capital Stock or other securities issued in the transaction) multiplied by the closing sale price of the Common Equity on its principal market on the date of the transaction (less, in the case of Capital Stock or other securities which require the payment of consideration at the time of conversion or exerciseany Restricted Payment pursuant to clauses (3), the aggregate consideration payable thereupon(4), (9) or (ii10) if above, no Default shall have occurred and be continuing or occur as a consequence thereof and (b) no issuance and sale of Qualified Equity Interests used to make a payment pursuant to clauses (2), (3) or (4)(B) above shall increase the Common Equity is not then traded Restricted Payments Basket. For the purposes of determining compliance with any U.S. dollar-denominated restriction on Restricted Payments denominated in a foreign currency, the U.S. dollar-equivalent amount of such Restricted Payment shall be calculated based on the New York Stock Exchange, American Stock Exchange or Nasdaq National Market, or if relevant currency exchange rate in effect on the Capital Stock or other securities issued in the transaction do not consist of Common Equity (or Capital Stock or other securities convertible into or exercisable for Common Equity), the value of date that such Capital Stock or other securities as determined by a nationally recognized investment banking firm retained by the Board of Directors of the CompanyRestricted Payment was made.

Limitations on Restricted Payments. (a) Until the Notes are rated Investment Grade by both Rating Agencies (after which time the following covenant will no longer be in effect), the Company will The Parent shall not, and will shall not cause or permit any Restricted Subsidiary to, directly or indirectly, make any Restricted Payment unlessif at the time of such Restricted Payment: (i1) no Default or Event of a Default shall have occurred and be continuing at the time of or immediately after giving effect to such Restricted Paymentshall occur as a consequence thereof; (ii2) immediately after giving effect the Parent cannot incur $1.00 of additional Indebtedness pursuant to the Ratio Exception; or (3) the amount of such Restricted Payment, the Company could incur at least $1.00 of Indebtedness pursuant when added to Section 3.02(a) hereof; and (iii) immediately after giving effect to such Restricted Payment, the aggregate amount of all other Restricted Payments (including the Fair Market Value of any non-cash Restricted Payment) declared or made after the Issue Date does not exceed (other than Restricted Payments made pursuant to clause (2), (3) or (5) of the next paragraph), exceeds the sum (the “Restricted Payments Basket”) of (without duplication): (a) 50% of the Consolidated Net Income of the Company on a cumulative basis during for the period (taken as one accounting period) from commencing on the first day of the first full fiscal quarter commencing after the Issue Date to and including April 1, 1998 and ending on the last day of the Company's fiscal quarter ended immediately preceding prior to the date of such Restricted Payment calculation for which consolidated financial statements are available (or in the event or, if such Consolidated Net Income shall be a deficit, minus 100% of such aggregate deficit), plus plus (b) 100% of the aggregate net cash proceeds of and the fair market value of Property received by the Company from Parent either (1x) any capital contribution as contributions to the Company common equity of the Parent after June 9, 1997 the Issue Date or any issue or (y) from the issuance and sale after June 9, 1997 of Qualified Stock (other than to any Subsidiary of the Company) and (2) the issue or sale Equity Interests after June 9, 1997 of any Indebtedness or other securities of the Company convertible into or exercisable for Qualified Stock of the Company that have been so converted or exercised, as the case may be, plus (c) $86.0 million, which is equal to the aggregate principal amount of the Company's 6-7/8% Convertible Subordinated Notes due 2002 that were converted into the Company's Common Equity prior to the Issue Date, plus other than to the extent any such proceeds are used to redeem Notes in accordance with paragraph 6(b) of the Notes, plus (c) the aggregate amount by which Indebtedness of the Parent or any Restricted Subsidiary is reduced on the Parent’s balance sheet upon the conversion or exchange (other than by a Subsidiary of the Parent) of Indebtedness issued subsequent to the Issue Date into Qualified Equity Interests (less the amount of any cash, or the fair value of assets, distributed by the Parent or any Restricted Subsidiary upon such conversion or exchange), plus (d) in the case of the disposition or repayment of or return on any Investment constituting that was treated as a Restricted Payment made after the June 9, 1997Issue Date, an amount (to the extent not included in the calculation computation of the Consolidated Net Income referred to in (a)Income) equal to the lesser of (xi) the return of capital with respect to such Investment (including by dividend, distribution or sale of Capital Stock) and (yii) the amount of such Investment that was treated as a Restricted Payment, in either case, less the cost of the disposition or repayment of such Investment (to the extent not included in the calculation and net of the Consolidated Net Income referred to in (a))taxes, plus plus (e) with respect to any upon a Redesignation of an Unrestricted Subsidiary that is redesignated as a Restricted Subsidiary after June 9Subsidiary, 1997 in accordance with the definition of Unrestricted Subsidiary (so long as the designation of such Subsidiary as an Unrestricted Subsidiary was treated as a Restricted Payment made after June 9, 1997 and only to the extent not included in the calculation of the Consolidated Net Income referred to in (a)), an amount equal to the lesser of (xi) the proportionate interest of the Company or a Restricted Subsidiary in an amount equal to the excess of (I) the total assets of such Subsidiary, valued on an aggregate basis at the lesser of book value and Fair Market Value thereof, over (II) of the total liabilities of Parent’s proportionate interest in such Subsidiary, determined in accordance with GAAPSubsidiary immediately following such Redesignation, and (y) the Designation Amount at the time of such Subsidiary's designation as an Unrestricted Subsidiary, plus (f) $50 million minus (gii) the aggregate amount of all the Parent’s Investments in such Subsidiary to the extent such Investments reduced the amount available for subsequent Restricted Payments (other than Restricted Payments referred to in under this clause (C3) of the immediately succeeding paragraph) made after June 9and were not previously repaid or otherwise reduced, 1997 through the Issue Date.plus (bf) Clauses (ii) and (iii) of paragraph (a) $5.0 million. The foregoing provisions will not prohibit: : (A1) the payment by the Parent or any Restricted Subsidiary of any dividend within 60 days after the date of its declaration thereof, if such dividend could have been made on the date of its declaration without violation of the payment would have complied with the provisions of this Indenture; ; (B2) so long as no Default shall have occurred and be continuing at the repurchasetime of or as a consequence of such redemption, the redemption or retirement of any shares of Capital Stock Equity Interests of the Company Parent or any Restricted Subsidiary in exchange for, or out of the net proceeds of the substantially concurrent issuance and sale of, Qualified Equity Interests; (other than to 3) so long as no Default shall have occurred and be continuing at the time of or as a Subsidiary consequence of such redemption, the redemption of Subordinated Indebtedness of the CompanyParent or any Restricted Subsidiary (a) in exchange for, or out of the proceeds of the substantially concurrent issuance and sale of, other shares of Qualified Stock; and Equity Interests or (Cb) the purchase, redemption or other acquisition, cancellation or retirement for value of Capital Stockin exchange for, or options, warrants, equity appreciation rights or other rights to purchase or acquire Capital Stock, out of the Company proceeds of the substantially concurrent incurrence of, Refinancing Indebtedness permitted to be incurred under Section 4.06 and the other terms of this Indenture; (4) so long as no Default shall have occurred and be continuing at the time of or any Subsidiary as a consequence of such redemption, the redemption of Equity Interests of the Parent held by officers officers, directors or employees or former officers officers, directors or employees of the Company or any Subsidiary (or their transferees, estates or beneficiaries under their estates) ), upon their death, disability, retirement, severance or termination of employment or service; provided that the aggregate cash consideration paid for all such redemptions shall not to exceed $20 2.0 million in during any calendar year; or (5) repurchases of Equity Interests deemed to occur upon the aggregate since exercise of stock options if the Issue DateEquity Interests represents a portion of the exercise price thereof; provided, however, provided that each Restricted Payment described in clauses (A) no issuance and (B) sale of this sentence shall be taken into account for purposes of computing the aggregate amount of all Restricted Payments Qualified Equity Interests pursuant to clause (iii) of paragraph (a). (c) For purposes of determining the aggregate and permitted amounts of Restricted Payments made, the amount of any guarantee of any Investment in any Person that was initially treated as a Restricted Payment and which was subsequently terminated or expired, net of any amounts paid by the Company or any Restricted Subsidiary in respect of such guarantee, shall be deducted. (d) In determining the "fair market value of Property" for purposes of clause (iii) of the paragraph (a), Property other than cash, Cash Equivalents and Marketable Securities shall be deemed to be equal in value to the "equity value" of the Capital Stock or other securities issued in exchange therefor. The "equity value" of such Capital Stock or other securities shall be equal to (i) the number of shares of Common Equity issued in the transaction (or issuable upon conversion or exercise of the Capital Stock or other securities issued in the transaction) multiplied by the closing sale price of the Common Equity on its principal market on the date of the transaction (less, in the case of Capital Stock or other securities which require the payment of consideration at the time of conversion or exercise, the aggregate consideration payable thereupon2) or (ii3) if above shall increase the Common Equity is not then traded on Restricted Payments Basket, except to the New York Stock Exchange, American Stock Exchange or Nasdaq National Market, or if extent the Capital Stock or other securities issued in proceeds thereof exceed the transaction do not consist of Common Equity (or Capital Stock or other securities convertible into or exercisable for Common Equity), amounts used to effect the value of such Capital Stock or other securities as determined by a nationally recognized investment banking firm retained by the Board of Directors of the Companytransactions described therein.

Limitations on Restricted Payments. (a) Until the Notes are rated Investment Grade by both Rating Agencies (after which time the following covenant will no longer be in effect), the The Company will not, and will not cause or permit any Restricted Subsidiary to, directly or indirectly, make any Restricted Payment unless:if, at the time of such Restricted Payment or after giving effect thereto, (ia) no a Default or Event of Default shall have occurred and be continuing at the time of or immediately after giving effect to such Restricted Payment;continuing; or (iib) immediately after giving effect to such Restricted Payment, the Company could incur at least $1.00 would fail to maintain sufficient Liquid Assets to comply with the terms of Indebtedness pursuant to the covenant set forth in Section 3.02(a) 9.12 hereof; andor (iiic) immediately after giving effect to such Restricted Payment, the aggregate amount of all Restricted Payments (including the Fair Market Value amount of any non-cash Restricted Paymentsuch payments, if other than in cash, having been determined in good faith by the relevant Board of Directors, whose determination shall be conclusive and evidenced by a Board Resolution filed with the Trustee) declared or and made after the Issue Date does not would exceed the sum of of: (ai) 5025% of the aggregate Consolidated Net Income (or, if such Consolidated Net Income is a deficit, 100% of such deficit) of the Company accrued on a cumulative basis during the period (taken as one accounting period) from and including April beginning on July 1, 1998 1997 and ending on the last day of the Company's last fiscal quarter ending prior to the date of such proposed Restricted Payment; plus (ii) the aggregate Net Cash Proceeds received by the Company as capital contributions (other than from a Subsidiary) after July 1, 1997; plus (iii) the aggregate Net Cash Proceeds and the Fair Market Value of property not constituting Net Cash Proceeds received by the Company from the issuance or sale (other than to a Subsidiary) of Qualified Capital Stock after the Issue Date; plus (iv) 100% of the amount of any Indebtedness of the Company or a Subsidiary that is issued after the Issue Date that is thereafter converted into or exchanged for Qualified Capital Stock of the Company; or (d) the Unsecured Debt Coverage Ratio for the Company for the most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date of such Restricted Payment (or in the event such Consolidated Net Income shall be a deficitis less than 2.00 to 1.00, minus 100% of such deficit), plus (b) 100% of the aggregate net cash proceeds of and the fair market value of Property received by the Company from (1) any capital contribution to the Company determined after June 9, 1997 or any issue or sale after June 9, 1997 of Qualified Stock (other than to any Subsidiary of the Company) and (2) the issue or sale after June 9, 1997 of any Indebtedness or other securities of the Company convertible into or exercisable for Qualified Stock of the Company that have been so converted or exercised, as the case may be, plus (c) $86.0 million, which is equal to the aggregate principal amount of the Company's 6-7/8% Convertible Subordinated Notes due 2002 that were converted into the Company's Common Equity prior to the Issue Date, plus (d) in the case of the disposition or repayment of any Investment constituting a Restricted Payment made after the June 9, 1997, an amount (to the extent not included in the calculation of the Consolidated Net Income referred to in (a)) equal to the lesser of (x) the return of capital with respect giving effect to such Investment (including by dividend, distribution or sale of Capital Stock) and (y) the amount of such Investment that was treated as a Restricted Payment, in either case, less the cost of the disposition or repayment of such Investment (to the extent not included in the calculation of the Consolidated Net Income referred to in (a)), plus (e) with respect to any Unrestricted Subsidiary that is redesignated as a Restricted Subsidiary after June 9, 1997 in accordance with the definition of Unrestricted Subsidiary (so long as the designation of such Subsidiary as an Unrestricted Subsidiary was treated as a Restricted Payment made after June 9, 1997 and only to the extent not included in the calculation of the Consolidated Net Income referred to in (a)), an amount equal to the lesser of (x) the proportionate interest of the Company or a Restricted Subsidiary in an amount equal to the excess of (I) the total assets of such Subsidiary, valued on an aggregate basis at the lesser of book value and Fair Market Value thereof, over (II) the total liabilities of such Subsidiary, determined in accordance with GAAP, and (y) the Designation Amount at the time of such Subsidiary's designation as an Unrestricted Subsidiary, plus (f) $50 million minus (g) the aggregate amount of all Restricted Payments (other than Restricted Payments referred to in clause (C) of the immediately succeeding paragraph) made after June 9, 1997 through the Issue Date. (b) Clauses (ii) and (iii) of paragraph (a) will not prohibit: (A) the payment of any dividend within 60 days of its declaration if such dividend could have been made on the date of its declaration without violation of the provisions of this Indenture; (B) the repurchase, redemption or retirement of any shares of Capital Stock of the Company in exchange for, or out of the net proceeds of the substantially concurrent sale (other than to a Subsidiary of the Company) of, other shares of Qualified Stock; and (C) 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 Subsidiary held by officers or employees or former officers or employees of the Company or any Subsidiary (or their estates or beneficiaries under their estates) not to exceed $20 million in the aggregate since the Issue Date; provided, however, that each Restricted Payment described in clauses the foregoing provisions will not prevent (A) and (B) of this sentence shall be taken into account for purposes of computing the aggregate amount of all Restricted Payments pursuant to clause (iii) of paragraph (a). (c) For purposes of determining the aggregate and permitted amounts of Restricted Payments made, the amount of any guarantee of any Investment in any Person that was initially treated as a Restricted Payment and which was subsequently terminated or expired, net of any amounts paid by the Company or any Restricted Subsidiary in respect of such guarantee, shall be deducted. (d) In determining the "fair market value of Property" for purposes of clause (iii) of the paragraph (a), Property other than cash, Cash Equivalents and Marketable Securities shall be deemed to be equal in value to the "equity value" of the Capital Stock or other securities issued in exchange therefor. The "equity value" of such Capital Stock or other securities shall be equal to (iy) the number payment of shares of Common Equity issued in the transaction (or issuable upon conversion or exercise of the Capital Stock or other securities issued in the transaction) multiplied by the closing sale price of the Common Equity on its principal market on a dividend within 60 days after the date of the transaction (less, in the case of Capital Stock or other securities which require the payment of consideration its declaration if at the time date of conversion or exercise, declaration such payment was permitted by the aggregate consideration payable thereupon) foregoing provisions or (iiz) if the Common Equity is not then traded on the New York Stock Exchange, American Stock Exchange or Nasdaq National Market, or if the Capital Stock or other securities issued in the transaction do not consist of Common Equity (or Capital Stock or other securities convertible into or exercisable for Common Equity), the value of such Capital Stock or other securities as determined by a nationally recognized investment banking firm retained by the Board of Directors of the Companyany Permitted Payment.

Limitations on Restricted Payments. (a) Until the Notes are rated Investment Grade by both Rating Agencies (Agencies, after which time the following covenant will no longer shall be in effect), binding on the Company will not, and will not cause or permit any Restricted Subsidiary toSubsidiary: (a) neither the Company nor any of its Restricted Subsidiaries shall, directly or indirectly, make any Restricted Payment unlessPayment, if, after giving effect thereto on a pro forma basis: (i) no Default or Event the Company could not Incur $1.00 of Default shall have occurred and be continuing at the time additional Indebtedness pursuant to provisions described in paragraph (b) of or immediately after giving effect to such Restricted PaymentSection 5.02 hereof; (ii) immediately after giving effect to such Restricted Payment, the Company could incur at least $1.00 a Default or an Event of Indebtedness pursuant to Section 3.02(a) hereofDefault would occur or be continuing; andor (iii) immediately after giving effect to such Restricted Payment, the aggregate amount of all Restricted Payments (Payments, including the Fair Market Value of any non-cash such proposed Restricted Payment) declared or , made by the Company and its Restricted Subsidiaries, from and after the Issue Date does not and on or prior to the date of such Restricted Payment, shall exceed the sum of (athe “Basket”) of: (A) 50% of the Consolidated Net Income of the Company on a cumulative basis during for the period (taken as one accounting period) from ), commencing with the first full fiscal quarter which includes the Issue Date, to and including April 1, 1998 and ending on the last day of the Company's fiscal quarter ended immediately preceding prior to the date of such Restricted Payment each calculation for which internal financial statements are available (or in the event such or, if Consolidated Net Income shall be a deficitfor such period is negative, then minus 100% of such deficit), plus ; plus (bB) 100% of the aggregate net cash proceeds of and the fair market value of Property received by the Company from (1) any capital contribution to the Company after June 9, 1997 or any issue or sale after June 9, 1997 of Qualified Stock (other than to any Subsidiary of the Company) and (2) the issue or sale after June 9, 1997 amount of any Indebtedness or other securities of the Company convertible or a Restricted Subsidiary Incurred after the Issue Date that is converted into or exercisable exchanged for Qualified Capital Stock of the Company that have been so converted or exercised, as the case may be, plus (c) $86.0 million, which is equal to the aggregate principal amount of the Company's 6-7/8% Convertible Subordinated Notes due 2002 that were converted into the Company's Common Equity prior to after the Issue Date, plus ; plus (dC) in to the case of the disposition or repayment of extent that any Restricted Investment constituting a Restricted Payment made after the June 9date of this First Supplemental Indenture is sold for cash or otherwise reduced or liquidated or repaid for cash, 1997in whole or in part, an amount (to the extent not included in the calculation of the Consolidated Net Income referred to in (a)) equal to the lesser of (x1) the cash return of capital with respect to such Restricted Investment (including by dividend, distribution or sale of Capital Stock) and (y) the amount of such Investment that was treated as a Restricted Payment, in either case, less the cost of disposition, if any) and (2) the disposition or repayment initial amount of such Investment Restricted Investment; plus (D) unless accounted for pursuant to clause (B) above, 100% of the aggregate net proceeds (after payment of reasonable out-of-pocket expenses, commissions and discounts incurred in connection therewith) received by the Company from the sale or issuance (other than to a Subsidiary of the Company) of its Qualified Capital Stock after the Issue Date and on or prior to the extent not included in the calculation date of the Consolidated Net Income referred to in such Restricted Payment; plus (a)), plus (eE) with respect to any Unrestricted Subsidiary that is redesignated as a Restricted Subsidiary after June 9, 1997 the Issue Date in accordance with the definition of Unrestricted Subsidiary (so long as the designation of such Subsidiary as an Unrestricted Subsidiary was treated as a Restricted Payment made after June 9, 1997 the Issue Date and only to the extent not included in the calculation of the Consolidated Net Income referred to in (a)Income), an amount equal to the lesser of (x) the proportionate interest book value in accordance with GAAP of the Company Company’s or a Restricted Subsidiary Subsidiary’s Investment in an amount equal to the excess of (I) the total assets of such Subsidiary, valued on an aggregate basis at the lesser of book value and Fair Market Value thereof, over (II) the total liabilities of such Subsidiary, determined in accordance with GAAP, and (y) the Designation Amount at the time of such Subsidiary's ’s designation as an Unrestricted Subsidiary; plus (F) 100% of tax benefits, plus if any, for the period (f) $50 million minus (g) taken as one accounting period), commencing with the aggregate amount of all Restricted Payments (other than Restricted Payments referred to in clause (C) of the immediately succeeding paragraph) made after June 9, 1997 through first full fiscal quarter which includes the Issue Date, realized by the Company from stock option exercises and from the issuance of the Company’s Qualified Capital Stock pursuant to equity-based employee benefit plans that are recorded as an increase to shareholders’ equity in accordance with GAAP; plus (G) $50,000,000. (b) Clauses (ii) and (iii) of paragraph The foregoing clause (a) will does not prohibit: : (Ai) the payment of any dividend within 60 days after the date of its declaration if such dividend could have been made on the date of its declaration without violation of in compliance with the provisions of this Indenture; foregoing provisions; (Bii) the repurchasepayment of cash dividends or other distributions to any Equity Investor or joint venture participant of a Restricted Subsidiary with respect to a class of Capital Stock of such Restricted Subsidiary or joint venture owned by such Equity Investor or joint venture participant so long as the Company or its Restricted Subsidiaries simultaneously receive a dividend or distribution with respect to their Investment in such Restricted Subsidiary or joint venture either in U.S. Legal Tender or the same form as the dividend or distribution received by such Equity Investor or joint venture participant and in proportion to their proportionate interest in the same class of Capital Stock of such Restricted Subsidiary (or in the case of a joint venture that is a partnership or a limited liability company, redemption as provided for in the documentation governing such joint venture), as the case may be; (iii) repurchases or retirement of any shares redemptions of Capital Stock of the Company from any former directors, officers and employees of the Company in the aggregate up to $3,000,000 during any calendar year (provided, however, that any amounts not used in any calendar year may be used in any subsequent year); or (iv) the retirement of Capital Stock of the Company or the retirement of Indebtedness of the Company, in exchange for, for or out of the net proceeds of the a substantially concurrent sale (other than a sale to a Subsidiary of the Company) of, other shares of its Qualified Stock; Capital Stock and (C) the purchase, redemption retirement of Capital Stock or other acquisition, cancellation Indebtedness of a Restricted Subsidiary in exchange for or retirement for value out of the proceeds of a substantially concurrent sale of its Qualified Capital Stock, or optionsprovided that, warrants, equity appreciation rights or other rights to purchase or acquire Capital Stock, of the Company or any Subsidiary held by officers or employees or former officers or employees of the Company or any Subsidiary (or their estates or beneficiaries under their estates) not to exceed $20 million in the aggregate since the Issue Date; provided, however, that each Restricted Payment described in clauses (A) and (B) of this sentence shall be taken into account for purposes of computing the aggregate amount of all Restricted Payments pursuant to clause (iii) of paragraph (a). (c) For purposes of determining the aggregate and permitted amounts of Restricted Payments madecase, the amount of any guarantee of any Investment in any Person that was initially treated as a Restricted Payment and which was subsequently terminated or expired, net of any amounts paid by the Company or any Restricted Subsidiary in respect of such guarantee, shall be deducted. (d) In determining the "fair market value of Property" proceeds is excluded for purposes of clause (a)(iii)(D) above. Any Restricted Payment made in accordance with clauses (i) and (iii) of this paragraph shall reduce the paragraph Basket. In calculating the Basket, any Restricted Payment not made in cash and any non-cash amounts received for purposes of clause (a), Property other than cash, Cash Equivalents and Marketable Securities D) shall be deemed to be equal in valued at fair market value to the "equity value" of the Capital Stock or other securities issued in exchange therefor. The "equity value" of such Capital Stock or other securities shall be equal to (i) the number of shares of Common Equity issued in the transaction (or issuable upon conversion or exercise of the Capital Stock or other securities issued in the transaction) multiplied by the closing sale price of the Common Equity on its principal market on the date of the transaction (less, in the case of Capital Stock or other securities which require the payment of consideration at the time of conversion or exercise, the aggregate consideration payable thereupon) or (ii) if the Common Equity is not then traded on the New York Stock Exchange, American Stock Exchange or Nasdaq National Market, or if the Capital Stock or other securities issued in the transaction do not consist of Common Equity (or Capital Stock or other securities convertible into or exercisable for Common Equity), the value of such Capital Stock or other securities as determined by a nationally recognized investment banking firm retained in good faith by the Board of Directors of Directors, whose determination shall be conclusive and whose resolution with respect thereto shall be delivered to the CompanyTrustee promptly after the adoption thereof.

Limitations on Restricted Payments. (a) Until the Notes are rated Investment Grade by both Rating Agencies (after which time the following covenant will no longer be in effect), the The Company will shall not, and will shall not cause or permit any Restricted Subsidiary of its Subsidiaries to, directly or indirectly, : (i) declare or pay any dividend or make any distribution on account of the Company's or any of its Subsidiaries' Equity Interests (other than (w) Physician Joint Venture Distributions, (x) dividends or distributions payable in Qualified Equity Interests of the Company, (y) dividends or distributions payable to the Company or any Subsidiary of the Company, and (z) dividends or distributions by any Subsidiary of the Company payable to all holders of a class of Equity Interests of such Subsidiary on a PRO RATA basis); (ii) purchase, redeem or otherwise acquire or retire for value any Equity Interests of the Company; or (iii) make any principal payment on, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness that is subordinated to the Securities, except at the original final maturity date thereof or pursuant to a Specified Exchange or the Refinancing (all such payments and other actions set forth in clauses (i) through (iii) above being collectively referred to as "RESTRICTED PAYMENTS"), unless, at the time of and after giving effect to such Restricted Payment unless:(the amount of any such Restricted Payment, if other than cash, shall be the fair market value (as conclusively evidenced by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the Trustee within 60 days prior to the date of such Restricted Payment) of the asset(s) proposed to be transferred by the Company or such Subsidiary, as the case may be, pursuant to such Restricted Payment): (ia) 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 or immediately such Restricted Payment and after giving PRO FORMA effect to thereto as if such Restricted Payment; (ii) Payment had been made at the beginning of the most recently ended four full fiscal quarter period for which internal financial statements are available immediately after giving effect to preceding the date of such Restricted Payment, the Company could 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 3.02(a) 4.09 hereof; and (iiic) immediately after giving effect to such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Subsidiaries after March 1, 1995 (including excluding Restricted Payments permitted by clauses (ii), (iii) and (iv) of the Fair Market Value of any non-cash Restricted Payment) declared or made after the Issue Date does not exceed next succeeding paragraph), is less than the sum of (a1) 50% of the Consolidated Net Income of the Company on a cumulative basis during for the period (taken as one accounting period) from and including April the beginning of the first fiscal quarter commencing after March 1, 1998 and ending on 1995 to the last day end of the Company's most recently ended fiscal quarter immediately preceding for which internal financial statements are available at the date time of such Restricted Payment (or in the event or, if such Consolidated Net Income shall be for such period is a deficit, minus less 100% of such deficit), plus PLUS (b2) 100% of the aggregate net cash proceeds of and the fair market value of Property received by the Company from (1) any capital contribution to the Company after June 9, 1997 or any issue or sale after June 9, 1997 of Qualified Stock (other than to any a Subsidiary of the Company) and (2) since March 1, 1995 of Qualified Equity Interests of the issue Company or sale after June 9, 1997 of any Indebtedness or other debt securities of the Company convertible into or exercisable for Qualified Stock any of the Company its Subsidiaries that have been so converted into or exercised, as the case may be, plus (c) $86.0 million, which is equal to the aggregate principal amount exchanged for such Qualified Equity Interests of the Company's 6-7/8% Convertible Subordinated Notes due 2002 that were converted into the Company's Common Equity prior to the Issue Date, plus PLUS (d3) in the case $50.0 million. If no Default or Event of the disposition Default has occurred and is continuing, or repayment of any Investment constituting a Restricted Payment made after the June 9, 1997, an amount (to the extent not included in the calculation of the Consolidated Net Income referred to in (a)) equal to the lesser of (x) the return of capital with respect to such Investment (including by dividend, distribution or sale of Capital Stock) and (y) the amount of such Investment that was treated would occur as a Restricted Payment, in either case, less the cost of the disposition or repayment of such Investment (to the extent not included in the calculation of the Consolidated Net Income referred to in (a)), plus (e) with respect to any Unrestricted Subsidiary that is redesignated as a Restricted Subsidiary after June 9, 1997 in accordance with the definition of Unrestricted Subsidiary (so long as the designation of such Subsidiary as an Unrestricted Subsidiary was treated as a Restricted Payment made after June 9, 1997 and only to the extent not included in the calculation of the Consolidated Net Income referred to in (a)), an amount equal to the lesser of (x) the proportionate interest of the Company or a Restricted Subsidiary in an amount equal to the excess of (I) the total assets of such Subsidiary, valued on an aggregate basis at the lesser of book value and Fair Market Value consequence thereof, over (II) the total liabilities of such Subsidiary, determined in accordance with GAAP, and (y) foregoing provisions shall not prohibit the Designation Amount at the time of such Subsidiary's designation as an Unrestricted Subsidiary, plus (f) $50 million minus (g) the aggregate amount of all following Restricted Payments (other than Restricted Payments referred to in clause (C) of the immediately succeeding paragraph) made after June 9, 1997 through the Issue Date.Payments: (b) Clauses (ii) and (iii) of paragraph (a) will not prohibit: (Ai) the payment of any dividend within 60 days of its declaration if such dividend could have been made on after the date of its declaration without violation thereof, if at said date of declaration such payment would have complied with the provisions of this Indenture; hereof; (Bii) the payment of cash dividends on any series of Disqualified Stock issued after the Closing Date in an aggregate amount not to exceed the cash received by the Company since the Closing Date upon issuance of such Disqualified Stock; (iii) the redemption, repurchase, redemption retirement or retirement other acquisition of any shares of Capital Stock Equity Interests of the Company or any Subsidiary in exchange for, or out of the net cash proceeds of of, the substantially concurrent sale (other than to a Subsidiary of the Company) of, other shares of Qualified StockEquity Interests of the Company; and PROVIDED that the amount of any such net cash proceeds that are utilized for any such redemption, repurchase, retirement or other acquisition shall be excluded from clause (Cc)(2) of the preceding paragraph; (iv) the purchasedefeasance, redemption or repurchase of subordinated Indebtedness with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness or in exchange for or out of the net cash proceeds from the substantially concurrent sale (other than to a Subsidiary of the Company) of Qualified Equity Interests of the Company; PROVIDED that the amount of any such net cash proceeds that are utilized for any such redemption, repurchase, retirement or other acquisition shall be excluded from clause (c)(2) of the preceding paragraph; (v) the repurchase, redemption or other acquisition, cancellation acquisition or retirement for value of Capital Stock, or options, warrants, equity appreciation rights or other rights to purchase or acquire Capital Stock, (A) any Equity Interests of the Company or any Subsidiary of the Company held by officers any member of the Company's (or employees any of its Subsidiaries') management pursuant to any management equity subscription agreement or former officers stock option agreement or employees (B) any Equity Interests of the Company which are or intended to be used to satisfy issuances of such Equity Interests upon exercise of employee stock options or upon exercise or satisfaction of other similar instruments outstanding under employee benefit plans of the Company or any Subsidiary (subsidiary of the Company; PROVIDED that the aggregate price paid for all such repurchased, redeemed, acquired or their estates or beneficiaries under their estates) retired Equity Interests shall not to exceed $20 25.0 million in any twelve-month period; and (vi) the aggregate since the Issue Date; provided, however, that each Restricted Payment described in clauses making and consummation of (A) and a senior subordinated asset sale offer in accordance with the provisions of the indenture relating to the 2005 Senior Subordinated Notes or (B) a Change of this sentence shall be taken into account for purposes of computing Control Offer with respect to the aggregate amount of all Restricted Payments pursuant to clause (iii) of paragraph (a). (c) For purposes of determining Senior Subordinated Notes in accordance with the aggregate and permitted amounts of Restricted Payments made, the amount of any guarantee of any Investment in any Person that was initially treated as a Restricted Payment and which was subsequently terminated or expired, net of any amounts paid by the Company or any Restricted Subsidiary in respect of such guarantee, shall be deducted. (d) In determining the "fair market value of Property" for purposes of clause (iii) provisions of the paragraph (a), Property other than cash, Cash Equivalents and Marketable Securities shall be deemed to be equal in value Senior Subordinated Note Indenture or change of control offer with respect to the "equity value" 2005 Senior Subordinated Notes or the 2005 Exchangeable Subordinated Notes in accordance with the provisions of the Capital Stock or other securities issued in exchange thereforindentures relating thereto. The "equity value" of such Capital Stock or other securities shall be equal to (i) the number of shares of Common Equity issued in the transaction (or issuable upon conversion or exercise of the Capital Stock or other securities issued in the transaction) multiplied by the closing sale price of the Common Equity on its principal market on Not later than the date of the transaction (less, in the case of Capital Stock or other securities which require the payment of consideration at the time of conversion or exercisemaking any Restricted Payment, the aggregate consideration payable thereupon) or (ii) if Company shall deliver to the Common Equity Trustee an Officers' Certificate stating that such Restricted Payment is not then traded on permitted and setting forth the New York Stock Exchange, American Stock Exchange or Nasdaq National Market, or if basis upon which the Capital Stock or other securities issued in the transaction do not consist of Common Equity (or Capital Stock or other securities convertible into or exercisable for Common Equity), the value of such Capital Stock or other securities as determined calculations required by a nationally recognized investment banking firm retained by the Board of Directors of the Companythis covenant were computed.

Limitations on Restricted Payments. (a) Until the Notes are rated Investment Grade by both Rating Agencies (after which time the following covenant will no longer be in effect), the Company will not, and will not cause or permit any Restricted Subsidiary to, directly or indirectly, make any Restricted Payment unless: (i) no Default or Event of Default shall have occurred and be continuing at the time of or immediately after giving effect to such Restricted Payment; (ii) immediately after giving effect to such Restricted Payment, the Company could incur at least $1.00 of Indebtedness pursuant to Section 3.02(a3.01(a) hereof; and (iii) immediately after giving effect to such Restricted Payment, the aggregate amount of all Restricted Payments (including the Fair Market Value of any non-cash Restricted Payment) declared or made after the Issue Date does not exceed the sum of (a) 50% of the Consolidated Net Income of the Company on a cumulative basis during the period (taken as one accounting period) from and including April 1, 1998 1998, and ending on the last day of the Company's fiscal quarter immediately preceding the date of such Restricted Payment (or in the event such Consolidated Net Income shall be a deficit, minus 100% of such deficit), plus (b) 100% of the aggregate net cash proceeds of and the fair market value of Property received by the Company from (1) any capital contribution to the Company after June 9, 1997 or any issue or sale after June 9, 1997 of Qualified Stock (other than to any Subsidiary of the Company) and (2) the issue or sale after June 9, 1997 of any Indebtedness or other securities of the Company convertible into or exercisable for Qualified Stock of the Company that have been so converted or exercised, as the case may be, plus (c) $86.0 million, which is equal to the aggregate principal amount of the Company's 6-6 7/8% Convertible Subordinated Notes due 2002 that were converted into the Company's Common Equity prior to the Issue Date, plus (d) in the case of the disposition or repayment of any Investment constituting a Restricted Payment made after the June 9, 1997, an amount (to the extent not included in the calculation of the Consolidated Net Income referred to in (a)) equal to the lesser of (x) the return of capital with respect to such Investment (including by dividend, distribution or sale of Capital Stock) and (y) the amount of such Investment that was treated as a Restricted Payment, in either case, less the cost of the disposition or repayment of such Investment (to the extent not included in the calculation of the Consolidated Net Income referred to in (a)), plus (e) with respect to any Unrestricted Subsidiary that is redesignated as a Restricted Subsidiary after June 9, 1997 in accordance with the definition of Unrestricted Subsidiary (so long as the designation of such Subsidiary as an Unrestricted Subsidiary was treated as a Restricted Payment made after June 9, 1997 and only to the extent not included in the calculation of the Consolidated Net Income referred to in (a)), an amount equal to the lesser of (x) the proportionate interest of the Company or a Restricted Subsidiary in an amount equal to the excess of (I) the total assets of such Subsidiary, valued on an aggregate basis at the lesser of book value and Fair Market Value thereof, over (II) the total liabilities of such Subsidiary, determined in accordance with GAAP, and (y) the Designation Amount at the time of such Subsidiary's designation as an Unrestricted Subsidiary, plus (f) $50 million minus (g) the aggregate amount of all Restricted Payments (other than Restricted Payments referred to in clause (C) of the immediately succeeding paragraph) made after June 9, 1997 through the Issue Date. (b) Clauses (ii) and (iii) of paragraph (a) will not prohibit: (A) the payment of any dividend within 60 days of its declaration if such dividend could have been made on the date of its declaration without violation of the provisions of this Indenture; (B) the repurchase, redemption or retirement of any shares of Capital Stock of the Company in exchange for, or out of the net proceeds of the substantially concurrent sale (other than to a Subsidiary of the Company) of, other shares of Qualified Stock; and (C) 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 Subsidiary held by officers or employees or former officers or employees of the Company or any Subsidiary (or their estates or beneficiaries under their estates) not to exceed $20 million in the aggregate since the Issue Date; provided, however, that each Restricted Payment described in clauses (A) and (B) of this sentence shall be taken into account for purposes of computing the aggregate amount of all Restricted Payments pursuant to clause (iii) of paragraph (a). (c) For purposes of determining the aggregate and permitted amounts of Restricted Payments made, the amount of any guarantee of any Investment in any Person that was initially treated as a Restricted Payment and which was subsequently terminated or expired, net of any amounts paid by the Company or any Restricted Subsidiary in respect of such guarantee, shall be deducted. (d) In determining the "fair market value of Property" for purposes of clause (iii) of the paragraph (a), Property other than cash, Cash Equivalents and Marketable Securities shall be deemed to be equal in value to the "equity value" of the Capital Stock or other securities issued in exchange therefor. The "equity value" of such Capital Stock or other securities shall be equal to (i) the number of shares of Common Equity issued in the transaction (or issuable upon conversion or exercise of the Capital Stock or other securities issued in the transaction) multiplied by the closing sale price of the Common Equity on its principal market on the date of the transaction (less, in the case of Capital Stock or other securities which require the payment of consideration at the time of conversion or exercise, the aggregate consideration payable thereupon) or (ii) if the Common Equity is not then traded on the New York Stock Exchange, American Stock Exchange or Nasdaq National Market, or if the Capital Stock or other securities issued in the transaction do not consist of Common Equity (or Capital Stock or other securities convertible into or exercisable for Common Equity), the value of such Capital Stock or other securities as determined by a nationally recognized investment banking firm retained by the Board of Directors of the Company.

Limitations on Restricted Payments. (a) Until the Notes are rated Investment Grade by both Rating Agencies (after which time the following covenant will no longer be in effect), the The Company will not, and will not cause or permit any of its Restricted Subsidiary Subsidiaries to, make any Restricted Payment, directly or indirectly, make after the Issue Date of Securities of any series if at the time of such Restricted Payment unlessPayment: (i) no Default or Event of Default shall have occurred and be continuing at the time of or immediately after giving effect to such Restricted Payment; (ii) immediately after giving effect to such Restricted Payment, the Company could incur at least $1.00 of Indebtedness pursuant to Section 3.02(a) hereof; and (iii) immediately after giving effect to such Restricted Payment, the aggregate amount of all Restricted Payments (including the Fair Market Value of any non-cash Restricted Payment) declared or made after the Issue Date does not exceed the sum of (a) 50% of the Consolidated Net Income of the Company on a cumulative basis during the period (taken as one accounting period) from and including April 1, 1998 and ending on the last day of the Company's fiscal quarter immediately preceding the date of such Restricted Payment (or in the event such Consolidated Net Income shall be a deficit, minus 100% of such deficit), plus (b) 100% of the aggregate net cash proceeds of and the fair market value of Property received by the Company from (1) any capital contribution to the Company after June 9, 1997 or any issue or sale after June 9, 1997 of Qualified Stock (other than to any Subsidiary of the Company) and (2) the issue or sale after June 9, 1997 of any Indebtedness or other securities of the Company convertible into or exercisable for Qualified Stock of the Company that have been so converted or exercised, as the case may be, plus (c) $86.0 million, which is equal to the aggregate principal amount of the Company's 6-7/8% Convertible Subordinated Notes due 2002 that were converted into the Company's Common Equity prior to the Issue Date, plus (d) in the case of the disposition or repayment of any Investment constituting a Restricted Payment made after the June 9, 1997, an amount (to the extent not included in the calculation of the Consolidated Net Income referred to in (a)) equal to the lesser of (x) the return of capital with respect to such Investment (including by dividend, distribution or sale of Capital Stock) and (y) the amount of such Investment that was treated as a Restricted Payment, in either case, less the cost of the disposition or repayment of such Investment (to the extent not included in the calculation of the Consolidated Net Income referred to in (a)), plus (e) with respect to any Unrestricted Subsidiary that is redesignated as a Restricted Subsidiary after June 9, 1997 in accordance with the definition of Unrestricted Subsidiary (so long as the designation of such Subsidiary as an Unrestricted Subsidiary was treated as a Restricted Payment made after June 9, 1997 and only to the extent not included in the calculation of the Consolidated Net Income referred to in (a)), an amount equal to the lesser of (x) the proportionate interest of the Company or a Restricted Subsidiary in an amount equal to the excess of (I) the total assets of such Subsidiary, valued on an aggregate basis at the lesser of book value and Fair Market Value thereof, over (II) the total liabilities of such Subsidiary, determined in accordance with GAAP, and (y) the Designation Amount at the time of such Subsidiary's designation as an Unrestricted Subsidiary, plus (f) $50 million minus (g) the aggregate amount of all Restricted Payments (if other than Restricted Payments referred to in clause (C) of the immediately succeeding paragraph) made after June 9, 1997 through the Issue Date. (b) Clauses (ii) and (iii) of paragraph (a) will not prohibit: (A) the payment of any dividend within 60 days of its declaration if such dividend could have been made on the date of its declaration without violation of the provisions of this Indenture; (B) the repurchase, redemption or retirement of any shares of Capital Stock of the Company in exchange for, or out of the net proceeds of the substantially concurrent sale (other than to a Subsidiary of the Company) of, other shares of Qualified Stock; and (C) 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 Subsidiary held by officers or employees or former officers or employees of the Company or any Subsidiary (or their estates or beneficiaries under their estates) not to exceed $20 million in the aggregate since the Issue Date; provided, however, that each Restricted Payment described in clauses (A) and (B) of this sentence shall be taken into account for purposes of computing the aggregate amount of all Restricted Payments pursuant to clause (iii) of paragraph (a). (c) For purposes of determining the aggregate and permitted amounts of Restricted Payments made, the amount of any guarantee of any Investment in any Person that was initially treated as a Restricted Payment and which was subsequently terminated or expired, net of any amounts paid by the Company or any Restricted Subsidiary in respect of such guarantee, shall be deducted. (d) In determining the "fair market value of Property" for purposes of clause (iii) of the paragraph (a), Property other than cash, Cash Equivalents and Marketable Securities shall will be deemed to be equal in value to the "equity value" of the Capital Stock or other securities issued in exchange therefor. The "equity value" of such Capital Stock or other securities shall be equal to (i) the number of shares of Common Equity issued in the transaction (or issuable upon conversion or exercise of the Capital Stock or other securities issued in the transaction) multiplied by the closing sale price of the Common Equity on its principal market on the date of the transaction (less, in the case of Capital Stock or other securities which require the payment of consideration at the time of conversion or exercise, the aggregate consideration payable thereupon) or (ii) if the Common Equity is not then traded on the New York Stock Exchange, American Stock Exchange or Nasdaq National Market, or if the Capital Stock or other securities issued in the transaction do not consist of Common Equity (or Capital Stock or other securities convertible into or exercisable for Common Equity), the value of such Capital Stock or other securities as determined by a nationally recognized investment banking firm retained by the Board of Directors of the Company.), when added to the aggregate amount of all Restricted Payments made after the Issue Date of the Securities of any series, exceeds the sum of: (1) $100,000,000, plus (2) 50 percent of the Company's Consolidated Net Income accrued during the period (taken as a single period) since January 1, 1997 (or, if such aggregate Consolidated Net Income is a deficit, minus 100 percent of such aggregate deficit), plus (3) the net cash proceeds derived from the issuance and sale of Capital Stock of the Company and its Restricted Subsidiaries that is not Disqualified Stock (other than a sale to a Subsidiary of the Company) after the Issue Date of Securities of any series but only to the extent not applied under clause (d) of the definition of "Restricted Payment" set forth in Section 1.02 hereof, plus (4) 100 percent of the principal amount of any Indebtedness of the Company or a Restricted Subsidiary that is converted into or exchanged for Capital Stock of the Company that is not Disqualified Stock, plus (5) 100 percent of the aggregate amounts received by the Company or any Restricted Subsidiary upon the sale, disposition or liquidation (including by way of dividends) of any Investment but only to the extent (x) not included in Section 6.12(a)(i)(2) above and (y) that the making of such Investment constituted a Restricted Investment made pursuant to this Section 6.12(a)(i), plus (6) 100 percent of the principal amount of, or if issued at a discount the accreted value of, any Indebtedness or other obligation that is the subject of a guaranty by the Company which is released after the Issue Date of Securities of any series, but only to the extent that the granting of such guaranty constituted a "Restricted Payment" under the definition set forth in Section 1.02 hereof; or

Limitations on Restricted Payments. (a) Until the Notes are rated Investment Grade by both Rating Agencies (after which time the following covenant will no longer be in effect), the Company will The Issuer shall not, and will shall not cause or permit any Restricted Subsidiary to, directly or indirectly, make any Restricted Payment unlessif at the time of such Restricted Payment: (i1) no Default or Event of a Default shall have occurred and be continuing at the time of or immediately shall occur as a consequence thereof; (2) after giving pro forma effect to such Restricted Payment; (ii) immediately after giving effect to Payment as if such Restricted PaymentPayment had been made at the beginning of the applicable Four-Quarter Period, the Company could Issuer is not able to incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) pursuant to Section 3.02(a) hereofthe Coverage Ratio Exception; andor (iii3) immediately after giving effect to the amount of such Restricted Payment, when added to the aggregate amount of all other Restricted Payments (including the Fair Market Value of any non-cash Restricted Payment) declared or made after the Issue Date does not exceed (other than Restricted Payments made pursuant to clauses (2) through (10) of clause (b) of this Section 4.11), exceeds the sum (the “Restricted Payments Basket”) of (awithout duplication): (A) 50% of the Consolidated Net Income of the Company on a cumulative basis during for the period (taken as one accounting period) from commencing on the first day of the fiscal quarter in which the Issue Date occurs to and including April 1, 1998 and ending on the last day of the Company's fiscal quarter ended immediately preceding prior to the date of such Restricted Payment calculation for which consolidated financial statements are available (or in the event or, if such Consolidated Net Income shall be a deficit, minus 100% of such deficit), plus plus (bB) 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 Issuer), (y) Equity Interests of a Person (other than the Issuer or a Subsidiary of the Issuer) engaged in a Permitted Business and (z) other assets used in any Permitted Business, in the fair market value case of Property clauses (i) and (ii), received by the Company from (1) any capital Issuer or its Restricted Subsidiaries since the Issue Date as a contribution to the Company after June 9, 1997 its common equity capital or any issue or sale after June 9, 1997 of Qualified Stock (other than to any Subsidiary of the Company) and (2) from the issue or sale after June 9, 1997 of any Indebtedness Qualified Equity Interests of the Issuer or other from the issue or sale of convertible or exchangeable Disqualified Equity Interests or convertible or exchangeable debt securities of the Company convertible into or exercisable for Qualified Stock of the Company Issuer that have been so converted into or exercisedexchanged for such Qualified Equity Interests (other than Equity Interests or debt securities sold to a Subsidiary of the Issuer and Excluded Contributions) and (B) the aggregate net cash proceeds, if any, received by the Issuer or any of its Restricted Subsidiaries upon any conversion or exchange described in clause (A) above, plus (C) 100% of (A) the aggregate amount by which Indebtedness (other than any Subordinated Indebtedness) of the Issuer or any Restricted Subsidiary is reduced on the Issuer’s consolidated balance sheet upon the conversion or exchange after the Issue Date of any such Indebtedness into or for Qualified Equity Interests of the Issuer and (B) the aggregate net cash proceeds, if any, received by the Issuer or any of its Restricted Subsidiaries upon any conversion or exchange described in clause (A) above, plus (D) with respect to Restricted Investments made by the Issuer and its Restricted Subsidiaries after the Issue Date, an amount equal to the sum, without duplication, 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 Issuer or any Restricted Subsidiary, (ii) other repurchases, repayments or redemptions of such Restricted Investments, (iii) the sale of any such Restricted Investment to a purchaser other than the Issuer or a Subsidiary or (iv) the release of any guarantee (except to the extent any amounts are paid under such guarantee) that constituted a Restricted Investment plus (B) with respect to any Unrestricted Subsidiary designated as such after the Issue Date and redesignated as a Restricted Subsidiary after the Issue Date, the Fair Market Value of the Issuer’s Investment in such Subsidiary held by the Issuer or any of its Restricted Subsidiaries at the time of such redesignation. (b) Notwithstanding the foregoing, the provisions set forth in clause (a) of this Section 4.11 will not prohibit: (1) the payment of (a) any dividend or redemption payment or the making of any distribution within 60 days after the date of declaration thereof if, on the date of declaration, the dividend, redemption or distribution payment, as the case may be, plus (c) $86.0 million, which is equal to the aggregate principal amount of the Company's 6-7/8% Convertible Subordinated Notes due 2002 that were converted into the Company's Common Equity prior to the Issue Date, plus (d) in the case of the disposition or repayment of any Investment constituting a Restricted Payment made after the June 9, 1997, an amount (to the extent not included in the calculation of the Consolidated Net Income referred to in (a)) equal to the lesser of (x) the return of capital would have complied with respect to such Investment (including by dividend, distribution or sale of Capital Stock) and (y) the amount of such Investment that was treated as a Restricted Payment, in either case, less the cost of the disposition or repayment of such Investment (to the extent not included in the calculation of the Consolidated Net Income referred to in (a)), plus (e) with respect to any Unrestricted Subsidiary that is redesignated as a Restricted Subsidiary after June 9, 1997 in accordance with the definition of Unrestricted Subsidiary (so long as the designation of such Subsidiary as an Unrestricted Subsidiary was treated as a Restricted Payment made after June 9, 1997 and only to the extent not included in the calculation of the Consolidated Net Income referred to in (a)), an amount equal to the lesser of (x) the proportionate interest of the Company or a Restricted Subsidiary in an amount equal to the excess of (I) the total assets of such Subsidiary, valued on an aggregate basis at the lesser of book value and Fair Market Value thereof, over (II) the total liabilities of such Subsidiary, determined in accordance with GAAP, and (y) the Designation Amount at the time of such Subsidiary's designation as an Unrestricted Subsidiary, plus (f) $50 million minus (g) the aggregate amount of all Restricted Payments (other than Restricted Payments referred to in clause (C) of the immediately succeeding paragraph) made after June 9, 1997 through the Issue Date. (b) Clauses (ii) and (iii) of paragraph (a) will not prohibit: (A) the payment of any dividend within 60 days of its declaration if such dividend could have been made on the date of its declaration without violation of the provisions of this Indenture; Indenture or (Bb) any dividend or similar distribution by a Restricted Subsidiary to the holders of its Equity Interests on a pro rata basis or on a basis more favorable to the Issuer; (2) the repurchase, redemption or retirement acquisition of any shares of Capital Stock Equity Interests of the Company Issuer or any Restricted Subsidiary in exchange for, or out of the net proceeds of the substantially concurrent issuance and sale (other than to a Subsidiary of the Company) of, other shares of Qualified Stock; and Equity Interests; (C3) the purchase, redemption repurchase, redemption, defeasance or other acquisition, cancellation acquisition or retirement for value of Capital StockSubordinated Indebtedness of the Issuer or any Restricted Subsidiary (including the payment of any required premium and any fees and expenses incurred in connection with such purchase, repurchase, redemption, defeasance, other acquisition or retirement for value) (a) in exchange for, or optionsout of the proceeds of the substantially concurrent issuance and sale of, warrantsQualified Equity Interests, equity appreciation rights (b) in exchange for, or out of the proceeds of the substantially concurrent incurrence of, Refinancing Indebtedness permitted to be incurred under Section 4.10 and the other terms of this Indenture or (c) upon a Change of Control or in connection with an Asset Sale to the extent required by the agreement governing such Subordinated Indebtedness but only if the Issuer shall have complied with Section 4.12 and Section 4.15 and purchased all Notes validly tendered pursuant to the relevant offer prior to purchasing, repurchasing, redeeming, defeasing or acquiring or retiring for value such Subordinated Indebtedness; (4) the redemption, repurchase or other rights to purchase acquisition or acquire Capital Stock, retirement for value of Equity Interests of the Company or any Subsidiary Issuer held by officers officers, directors or employees or former officers officers, directors or employees of the Company or any Subsidiary (or their transferees, estates or beneficiaries under their estates), either (x) upon any such individual’s death, disability, retirement, severance or termination of employment or service or (y) pursuant to any equity subscription agreement, stock option agreement, stockholders’ agreement or similar agreement; provided, in any case, that the aggregate cash consideration paid for all such redemptions, repurchases or other acquisitions or retirements shall not exceed (A) $10.0 million during any calendar year (with unused amounts in any calendar year being carried forward to the next succeeding calendar year but not any subsequent years) plus (B) the amount of any net cash proceeds received by or contributed to the Issuer from the issuance and sale after the Issue Date of Qualified Equity Interests of the Issuer to its officers, directors or employees that have not been applied to the payment of Restricted Payments pursuant to this clause (4), plus (C) the net cash proceeds of any “key-man” life insurance policies that have not been applied to the payment of Restricted Payments pursuant to this clause (4); (a) repurchases, redemptions or other acquisitions or retirements for value of Equity Interests deemed to occur upon the exercise of stock options, warrants, rights to acquire Equity Interests or other convertible securities to the extent such Equity Interests represent a portion of the exercise or exchange price thereof and (b) any repurchases, redemptions or other acquisitions or retirements for value of Equity Interests made in lieu of withholding taxes in connection with any exercise or exchange of stock options, warrants or other similar rights; (6) dividends on Preferred Stock or Disqualified Equity Interests issued in compliance with Section 4.10 to the extent such dividends are included in the definition of Consolidated Interest Expense; (7) the payment of cash in lieu of fractional Equity Interests; (8) payments or distributions to dissenting stockholders pursuant to applicable law in connection with a merger, consolidation or transfer of assets that complies with the provisions of Article 5; (9) Restricted Payments with Excluded Contributions; or (10) payment of other Restricted Payments in an aggregate amount not to exceed $20 million in the aggregate since the Issue Date25.0 million; provided, however, provided that each Restricted Payment described in clauses (A) and (B) of this sentence shall be taken into account for purposes of computing the aggregate amount of all Restricted Payments pursuant to clause (iii) of paragraph (a). (c) For purposes of determining the aggregate and permitted amounts of Restricted Payments made, the amount of any guarantee of any Investment in any Person that was initially treated as a Restricted Payment and which was subsequently terminated or expired, net of any amounts paid by the Company or any Restricted Subsidiary in respect of such guarantee, shall be deducted. (d) In determining the "fair market value of Property" for purposes of clause (iii) of the paragraph (a), Property other than cash, Cash Equivalents and Marketable Securities shall be deemed to be equal in value to the "equity value" of the Capital Stock or other securities issued in exchange therefor. The "equity value" of such Capital Stock or other securities shall be equal to (i) the number of shares of Common Equity issued in the transaction (or issuable upon conversion or exercise of the Capital Stock or other securities issued in the transaction) multiplied by the closing sale price of the Common Equity on its principal market on the date of the transaction (less, in the case of Capital Stock or other securities which require the payment of consideration at the time of conversion or exerciseany Restricted Payment pursuant to clauses (3), the aggregate consideration payable thereupon(4), (9) or (ii10) if above, no Default shall have occurred and be continuing or occur as a consequence thereof and (b) no issuance and sale of Qualified Equity Interests used to make a payment pursuant to clauses (2), (3) or (4)(B) above shall increase the Common Equity is not then traded Restricted Payments Basket. For the purposes of determining compliance with any U.S. dollar-denominated restriction on Restricted Payments denominated in a foreign currency, the U.S. dollar-equivalent amount of such Restricted Payment shall be calculated based on the New York Stock Exchange, American Stock Exchange or Nasdaq National Market, or if relevant currency exchange rate in effect on the Capital Stock or other securities issued in the transaction do not consist of Common Equity (or Capital Stock or other securities convertible into or exercisable for Common Equity), the value of date that such Capital Stock or other securities as determined by a nationally recognized investment banking firm retained by the Board of Directors of the CompanyRestricted Payment was made.

Limitations on Restricted Payments. (a) Until the Notes are rated Investment Grade by both Rating Agencies (after which time the following covenant will no longer be in effect), the Company will The Borrower shall not, and will shall not cause or permit any of its Restricted Subsidiary Subsidiaries to, make any Restricted Payment, directly or indirectly, make any after the date hereof if at the time of such Restricted Payment unlessPayment: (i) no Default or Event the amount of Default shall have occurred and be continuing at such proposed Restricted Payment (the time amount of or immediately after giving effect to such Restricted Payment; (ii) immediately after giving effect to such Restricted Payment, if other than in cash, shall be determined in good faith by a majority of the Company could incur at least $1.00 disinterested members of Indebtedness pursuant the Board of Directors of the Borrower), when added to Section 3.02(a) hereof; and (iii) immediately after giving effect to such Restricted Payment, the aggregate amount of all Restricted Payments (including the Fair Market Value excluding Restricted Payments permitted by paragraph (b) of any non-cash Restricted Paymentthis Section 6.03) declared or made after the Issue Closing Date does not exceed exceeds the sum of of: (aA) $200.0 million, plus (B) 50% of the Borrower’s Consolidated Net Income of the Company on a cumulative basis accrued during the period (taken as one accounting a single period) from and including April 1, 1998 commencing on the first day of the fiscal quarter in which the Covenant Trigger Date occurs and ending on the last day of the Company's fiscal quarter immediately preceding the date of such fiscal quarter in which the Restricted Payment is to occur (or in the event or, if such aggregate Consolidated Net Income shall be is a deficit, minus 100% of such aggregate deficit); provided, plus that for purposes of this calculation, if a Covenant Trigger Date occurs as the result of the Borrower achieving the Net Income Threshold, the Covenant Trigger Date will be deemed to have occurred as of the first day of the second fiscal quarter included in calculating such Net Income Threshold, plus (bC) the net cash proceeds derived from the issuance and sale of Capital Stock of the Borrower and its Restricted Subsidiaries (or any capital contribution to the Borrower or a Restricted Subsidiary) that is not Disqualified Stock (other than a sale to, or a contribution by, a Subsidiary of the Borrower) after the Closing Date, plus (D) 100% of the principal amount of, or, if issued at a discount, the accreted value of, any Indebtedness of the Borrower or a Restricted Subsidiary which is issued (other than to a Subsidiary of the Borrower) after the Closing Date that is converted into or exchanged for Capital Stock of the Borrower that is not Disqualified Stock, plus (E) 100% of the aggregate net cash proceeds of and the fair market value of Property amounts received by the Company from (1) any capital contribution to the Company after June 9, 1997 Borrower or any issue Restricted Subsidiary from the sale, disposition or sale after June 9, 1997 liquidation (including by way of Qualified Stock dividends) of any Investment (other than to any Subsidiary of the Company) Borrower and (2) the issue or sale after June 9, 1997 of any Indebtedness or other securities of the Company convertible into or exercisable for Qualified Stock of the Company that have been so converted or exercised, as the case may be, plus (c) $86.0 million, which is equal to the aggregate principal amount of the Company's 6-7/8% Convertible Subordinated Notes due 2002 that were converted into the Company's Common Equity prior to the Issue Date, plus (d) in the case of the disposition or repayment of any Investment constituting a Restricted Payment made after the June 9, 1997, an amount (than to the extent sold, disposed of or liquidated with recourse to the Borrower or any of its Subsidiaries or to any of their respective properties or assets) but only to the extent (x) not included in the calculation of the Consolidated Net Income referred to in clause (a)B) equal to the lesser of (x) the return of capital with respect to such Investment (including by dividend, distribution or sale of Capital Stock) above and (y) that the amount making of such Investment that was treated as constituted a permitted Restricted Payment, in either case, less the cost of the disposition or repayment of such Investment (to the extent not included in the calculation Investment was made after the Closing Date), plus (F) 100% of the Consolidated Net Income referred principal amount of, or if issued at a discount, the accreted value of, any Indebtedness or other obligation that is the subject of a guarantee by the Borrower which is released (other than due to in a payment on such guarantee) after the Closing Date, but only to the extent that such guarantee constituted a permitted Restricted Payment, plus (a)), plus (eG) with respect to any Unrestricted Subsidiary that is redesignated as a Restricted Subsidiary after June 9, 1997 in accordance with the definition of “Unrestricted Subsidiary Subsidiary” (so long as the designation of such Subsidiary as an Unrestricted Subsidiary was treated as a Restricted Payment made after June 9the Closing Date, 1997 and only to the extent not included in the calculation of the Consolidated Net Income referred to in clause (a)B) above), an amount equal to the lesser of (x) the proportionate interest of the Company Borrower or a Restricted Subsidiary in an amount equal to the excess of (I) the total assets of such Subsidiary, valued on an aggregate basis at the lesser of book value Book Value and Fair Market Value thereof, over (II) the total liabilities of such Subsidiary, determined in accordance with GAAP, and (y) the Designation Amount at amount of the time of Restricted Payment deemed to be made upon such Subsidiary's ’s designation as an Unrestricted Subsidiary, plus ; or (f) $50 million minus (gii) the aggregate amount Borrower would be unable to incur $1.00 of all Restricted Payments additional Indebtedness under the Consolidated Fixed Charge Coverage Ratio contained in Section 6.01 hereof; or (other than Restricted Payments referred to in clause (Ciii) a Default or Event of the immediately succeeding paragraph) made after June 9, 1997 through the Issue DateDefault has occurred and is continuing or occurs as a consequence thereof. (b) Clauses (ii) and (iii) of paragraph (a) will Notwithstanding the foregoing, this Section 6.03 shall not prohibit: : (Ai) the payment of any dividend within 60 sixty (60) days after the date of its declaration thereof if such dividend could the payment thereof would have been made complied with the limitations hereof on the date of its declaration without violation of the provisions of this Indenture; declaration; (Bii) the purchase, repayment, redemption, repurchase, redemption defeasance or other acquisition or retirement of any shares of the Borrower’s Capital Stock of or the Company in exchange Borrower’s or a Restricted Subsidiary’s Indebtedness for, or out of the net proceeds of the a substantially concurrent sale (other than a sale to a Subsidiary of the CompanyBorrower) of, other shares of Qualified its Capital Stock (other than Disqualified Stock; and ), provided that the proceeds of any such sale shall be excluded in any computation made under Section 6.03(a)(i)(C) above; (Ciii) the purchase, redemption repayment, redemption, repurchase, defeasance or other acquisition, cancellation acquisition or retirement for value of Capital StockIndebtedness, or optionsincluding premium, warrantsif any, equity appreciation rights or with the proceeds of Refinancing Indebtedness; or (iv) other rights to purchase or acquire Capital Stock, of Restricted Payments made after the Company or any Subsidiary held by officers or employees or former officers or employees of the Company or any Subsidiary (or their estates or beneficiaries under their estates) Closing Date in an amount not to exceed $20 50.0 million in the aggregate since the Issue Date; provided, however, that each Restricted Payment described in clauses (A) and (B) of this sentence shall be taken into account for purposes of computing the aggregate amount of all Restricted Payments pursuant to clause (iii) of paragraph (a)aggregate. (c) For purposes of determining the aggregate and permitted amounts of Restricted Payments made, the amount of any guarantee of any Investment in any Person that was initially treated as a Restricted Payment and which was subsequently terminated or expired, net of any amounts paid by the Company or any Restricted Subsidiary in respect of such guarantee, shall be deducted. (d) In determining the "fair market value of Property" for purposes of clause (iii) of the paragraph (a), Property other than cash, Cash Equivalents and Marketable Securities shall be deemed to be equal in value to the "equity value" of the Capital Stock or other securities issued in exchange therefor. The "equity value" of such Capital Stock or other securities shall be equal to (i) the number of shares of Common Equity issued in the transaction (or issuable upon conversion or exercise of the Capital Stock or other securities issued in the transaction) multiplied by the closing sale price of the Common Equity on its principal market on the date of the transaction (less, in the case of Capital Stock or other securities which require the payment of consideration at the time of conversion or exercise, the aggregate consideration payable thereupon) or (ii) if the Common Equity is not then traded on the New York Stock Exchange, American Stock Exchange or Nasdaq National Market, or if the Capital Stock or other securities issued in the transaction do not consist of Common Equity (or Capital Stock or other securities convertible into or exercisable for Common Equity), the value of such Capital Stock or other securities as determined by a nationally recognized investment banking firm retained by the Board of Directors of the Company.

Limitations on Restricted Payments. (a) Until The Issuer and the Notes are rated Investment Grade by both Rating Agencies (after which time the following covenant will no longer be in effect), the Company Co-Issuer will not, and will not cause or permit any Restricted Subsidiary to, directly or indirectly, make any Restricted Payment unless, at the time of and after giving effect to such Restricted Payment: (i1) no Default or Event of Default shall have occurred and be continuing at the time or would occur as a consequence of or immediately after giving effect to such Restricted Payment; (ii2) immediately the Issuer would, at the time of such Restricted Payment and after giving pro forma effect to thereto as if such Restricted PaymentPayment had been made at the beginning of the applicable Four-Quarter Period, the Company could have been permitted to incur at least $1.00 of additional Indebtedness pursuant to Section 3.02(a) hereofthe Coverage Ratio Exception; andor (iii3) immediately after giving effect to such Restricted Payment, when added to the aggregate amount of all other Restricted Payments (including made by the Fair Market Value of any nonIssuer, the Co-cash Issuer and the Restricted Payment) declared or made Subsidiaries after the Issue Date does not exceed (other than Restricted Payments made pursuant to clauses Section 4.11(b)(2), Section 4.11(b)(3), Section 4.11(b)(4), Section 4.11(b)(5), Section 4.11(b)(6), Section 4.11(b)(8), or Section 4.11(b)(9)), is less than the sum (the “Restricted Payments Basket”) of (awithout duplication): (A) 50% of the Consolidated Net Income of the Company on a cumulative basis during Issuer for the period (taken as one accounting period) from commencing on the first day of the first full fiscal quarter commencing after the Issue Date to and including April 1, 1998 and ending on the last day of the Company's fiscal quarter ended immediately preceding prior to the date of such Restricted Payment calculation for which consolidated financial statements are available (or in the event or, if such Consolidated Net Income shall be a deficit, minus 100% of such aggregate deficit), plus plus (bB) 100% of the aggregate net cash proceeds of and the fair market value value, as determined in good faith by the Board of Property Directors of the Issuer, of property and marketable securities, received by the Company from Issuer either (1x) any capital contribution as contributions to the Company common equity of the Issuer after June 9, 1997 or any issue or sale after June 9, 1997 of Qualified Stock the Issue Date (other than to (i) by a Restricted Subsidiary, (ii) any Subsidiary of the CompanyDisqualified Equity Interests, (iii) Designated Preferred Stock and (2iv) cash proceeds applied to Restricted Payments made in accordance with Section 4.11(b)(4)) or (y) from the issue or issuance and sale of Qualified Equity Interests after June 9, 1997 of any Indebtedness or other securities of the Company convertible into or exercisable for Qualified Stock of the Company that have been so converted or exercised, as the case may be, plus (c) $86.0 million, which is equal to the aggregate principal amount of the Company's 6-7/8% Convertible Subordinated Notes due 2002 that were converted into the Company's Common Equity prior to the Issue Date, plus in each case, other than any such proceeds which are used (dx) to redeem Notes in accordance with Section 6 of the Notes or (y) to make Restricted Payments in reliance on Section 4.11(b)(3) or Section 4.11(b)(4), plus (C) the aggregate amount by which Indebtedness (other than any Subordinated Indebtedness) of the Issuer, the Co-Issuer or any Restricted Subsidiary is reduced on the Issuer’s balance sheet upon the conversion or exchange subsequent to the Issue Date (other than by a Subsidiary of the Issuer) into Qualified Equity Interests (less the amount of any cash, or the fair value of assets, distributed by the Issuer, the Co-Issuer or any Restricted Subsidiary upon such conversion or exchange), plus (D) without duplication of any amounts included in Section 4.11(b)(4), (x) in the case of the disposition or repayment of or return on any Investment constituting that was treated as a Restricted Payment made after the June 9, 1997Issue Date, an amount (to the extent not included in the calculation computation of the Consolidated Net Income referred to in (a)Income) equal to the lesser of (xi) the aggregate amount received in cash and the fair market value, as determined by the Board of Directors of the Issuer in good faith, of property and marketable securities received after the Issue Date and representing the return of capital with respect to such Investment (including by dividend, distribution or sale of Capital Stock) and (yii) the amount of such Investment that was treated as a Restricted Payment, in either case, less the cost of the disposition or repayment of such Investment and net of taxes or (y) the sale (other than to the extent not included in Issuer, the calculation Co-Issuer or a Restricted Subsidiary) of the Consolidated Net Income referred to in Equity Interests of an Unrestricted Subsidiary, plus (a)), plus (eE) with respect to any upon a Redesignation of an Unrestricted Subsidiary that is redesignated as a Restricted Subsidiary after June 9Subsidiary, 1997 in accordance with the definition of Unrestricted Subsidiary (so long as the designation of such Subsidiary as an Unrestricted Subsidiary was treated as a Restricted Payment made after June 9, 1997 and only to the extent not included in the calculation of the Consolidated Net Income referred to in (a)), an amount equal to the lesser of (xi) the proportionate interest of the Company or a Restricted Subsidiary in an amount equal to the excess of (I) the total assets of such Subsidiary, valued on an aggregate basis at the lesser of book value and Fair Market Value thereof, over (II) of the total liabilities of Issuer’s proportionate interest in such Subsidiary, determined in accordance with GAAPSubsidiary immediately following such Redesignation, and (y) the Designation Amount at the time of such Subsidiary's designation as an Unrestricted Subsidiary, plus (f) $50 million minus (gii) the aggregate amount of all the Issuer’s Investments in such Subsidiary to the extent such Investments reduced the Restricted Payments (other than Restricted Payments referred to in clause (C) of the immediately succeeding paragraph) made after June 9, 1997 through the Issue DateBasket and were not previously repaid or otherwise reduced. (b) Clauses (ii) and (iii) of paragraph (a) The foregoing provisions will not prohibit: : (A1) the payment by the Issuer, the Co-Issuer or any Restricted Subsidiary of any dividend or other distribution within 60 days after the date of its declaration thereof, if such dividend could have been made on the date of its declaration without violation of the payment would have complied with the provisions of this Indenture; ; (B2) the redemption, repurchase, redemption retirement or retirement other acquisition of any shares of Capital Stock Equity Interests of the Company Issuer, the Co-Issuer or any Restricted Subsidiary in exchange for, or out of the net proceeds of the substantially concurrent issuance and sale of, Qualified Equity Interests; (3) the redemption, repurchase, retirement or other than to a Subsidiary acquisition of Subordinated Indebtedness of the CompanyIssuer, the Co-Issuer or any Restricted Subsidiary (a) in exchange for, or out of the proceeds of the substantially concurrent issuance and sale of, Qualified Equity Interests or (b) in exchange for, or out of the proceeds of the substantially concurrent incurrence of, Refinancing Indebtedness permitted to be incurred under Section 4.10 and the other shares terms of this Indenture; provided, that the amount of any such net cash proceeds that are utilized for any such Restricted Payment will not be considered to be net proceeds of Qualified Stock; Equity Interests for purposes of Section 4.11(a)(3)(B) and (C) the purchase, redemption or other acquisition, cancellation or retirement will not be considered to be net cash proceeds from a Qualified Equity Offering for value of Capital Stock, or options, warrants, equity appreciation rights or other rights to purchase or acquire Capital Stock, purposes of the Company or any Subsidiary provisions described under Section 6 of the Notes; (4) payments to redeem Equity Interests of the Issuer, held by officers officers, directors or employees or former officers officers, directors or employees of the Company or any Subsidiary (or their transferees, estates or beneficiaries under their estates) not thereof, upon their death, disability, retirement, severance or termination of employment or service pursuant to exceed $20 million in any employee benefit plan or agreement or awarded to an employee to pay for the taxes payable by such employee upon such grant or award or the vesting thereof; provided, that the aggregate amount of Restricted Payments under this clause (4) shall not exceed (A) $2.0 million during any calendar year plus (B) the amount of any net cash proceeds received by or contributed to the Issuer from the issuance and sale since the Issue DateDate of Qualified Equity Interests of the Issuer to its officers, directors or employees that have not been applied to the payment of Restricted Payments pursuant to the terms of clause 3(b) of the preceding paragraph or this clause (4), plus (C) the net cash proceeds of any “key-man” life insurance policies that have not been applied to Restricted Payments pursuant to this clause (4), less (D) the amount of any Restricted Payments previously made from cash proceeds received pursuant to clauses (B) and (C) of this clause (4); provided, further, that the cancellation of Indebtedness owing to the Issuer, the Co-Issuer or any Restricted Subsidiary in connection with the repurchase of Qualified Equity Interests will not be deemed to constitute a Restricted Payment; (5) (a) the declaration and payment of regularly scheduled or accrued dividends to holders of the Series A Preferred Stock to the extent such dividends are included in the definition of Consolidated Interest Expense, (b) the declaration and payment of regularly scheduled or accrued dividends to holders of any class or series of Disqualified Equity Interests of the Issuer, the Co-Issuer or any Restricted Subsidiary outstanding on the Issue Date or issued on or after the Issue Date in accordance with the Coverage Ratio Exception described under Section 4.10 to the extent such dividends are included in the definition of Consolidated Interest Expense and (c) the declaration and payment of accrued and unpaid dividends to holders of the Series A Preferred Stock outstanding as of the Issue Date with the proceeds from the sale of the Initial Notes; (6) the declaration and payment of dividends or distributions to holders of any class or series of Designated Preferred Stock (other than Disqualified Equity Interests) issued by the Issuer after the Issue Date in accordance with the Coverage Ratio Exception described under Section 4.10 to the extent such dividends are included in the definition of Consolidated Interest Expense; provided, however, that each Restricted Payment described in clauses (A) for the most recently ended four full fiscal quarters for which consolidated financial statements are available immediately preceding the date of issuance of such Designated Preferred Stock, after giving effect to such issuance (and the payment of dividends or distributions thereon) on a pro forma basis, the Issuer would have had a Fixed Charge Coverage Ratio of at least 2.0 to 1.0 and (B) of this sentence shall be taken into account for purposes of computing the aggregate amount of dividends declared and paid pursuant to this clause (6) does not exceed the net cash proceeds actually received by the Issuer from any such sale of Designated Preferred Stock (other than Disqualified Equity Interests) issued after the Issue Date; (7) repurchases of Equity Interests deemed to occur upon the exercise or conversion of stock options or other Equity Interests, if such repurchased or converted Equity Interests represent a portion of the exercise price thereof; (8) the repurchase, redemption or other acquisition or retirement for value of any Subordinated Indebtedness pursuant to the provisions in documentation governing such Subordinated Indebtedness similar to those described under Section 4.09, Section 4.13, Section 4.14 and Section 4.27; provided, that prior to such repurchase, redemption or another acquisition, the Issuer and the Co-Issuer (or a third party to the extent permitted by this Indenture) shall have made any required Change of Control Offer, Net Proceeds Offer or Loss Proceeds Offer, as the case may be, with respect to the Notes and shall have repurchased all Notes validly tendered and not withdrawn in connection with such Change of Control Offer, Net Proceeds Offer or Loss Proceeds Offer; or (9) additional Restricted Payments of $10.0 million; provided, that (a) in the case of any Restricted Payment pursuant to clause (iii3), (4), (5)(b), (6), (8) or (9) of paragraph this Section 4.11(b), no Default shall have occurred and be continuing or occur as a consequence thereof and (ab) no issuance and sale of Qualified Equity Interests used to make a payment pursuant to clause (2). , (c3) For purposes or (4) of determining this Section 4.11(b) shall increase the aggregate and permitted amounts of Restricted Payments made, Basket. In the amount of any guarantee of any Investment in any Person event that was initially treated as a Restricted Payment and which was subsequently terminated or expired, net meets the criteria of any amounts paid by more than one of the Company or any Restricted Subsidiary exceptions described in respect of such guarantee, shall be deducted. (d1) In determining the "fair market value of Property" for purposes of clause through (iii9) of the paragraph (a), Property other than cash, Cash Equivalents and Marketable Securities shall be deemed this Section 4.11(b) or is entitled to be equal in value made pursuant to the "equity value" of the Capital Stock or other securities issued in exchange therefor. The "equity value" of such Capital Stock or other securities shall be equal to (i) the number of shares of Common Equity issued in the transaction (or issuable upon conversion or exercise of the Capital Stock or other securities issued in the transaction) multiplied by the closing sale price of the Common Equity on its principal market on the date of the transaction (less, in the case of Capital Stock or other securities which require the payment of consideration at the time of conversion or exercise, the aggregate consideration payable thereupon) or (ii) if the Common Equity is not then traded on the New York Stock Exchange, American Stock Exchange or Nasdaq National Market, or if the Capital Stock or other securities issued in the transaction do not consist of Common Equity (or Capital Stock or other securities convertible into or exercisable for Common EquitySection 4.11(a), the value of Issuer shall, in its sole discretion, classify or reclassify such Capital Stock Restricted Payment into one or other securities as determined by a nationally recognized investment banking firm retained by the Board of Directors of the Companymore exceptions.

Limitations on Restricted Payments. (a) Until the Notes are rated Investment Grade by both Rating Agencies (after which time the following covenant will no longer be in effect), the Company will The Issuer shall not, and will shall not cause or permit any Restricted Subsidiary to, directly or indirectly, make any Restricted Payment unless:if at the time of such Restricted Payment (i1) no Default or Event of a Default shall have occurred and be continuing at the time of or immediately after giving effect to such Restricted Paymentshall occur as a consequence thereof; (ii2) immediately after giving effect the Issuer is not able to such Restricted Payment, the Company could incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) pursuant to Section 3.02(a) hereofthe Coverage Ratio Exception; andor (iii3) immediately after giving effect to the amount of such Restricted Payment, when added to the aggregate amount of all other Restricted Payments (including the Fair Market Value of any non-cash Restricted Payment) declared or made after the Prior Issue Date does not exceed (other than Restricted Payments made pursuant to clauses (1)(b), (2), (3), (4), (5) or (9) of clause (b) of this Section 4.11), exceeds the sum (the “Restricted Payments Basket”) of (awithout duplication): (A) 50% of the Consolidated Net Income of the Company on a cumulative basis during for the period (taken as one accounting period) from commencing on January 1, 2011 to and including April 1, 1998 and ending on the last day of the Company's fiscal quarter ended immediately preceding prior to the date of such Restricted Payment calculation for which consolidated financial statements are available (or in the event or, if such Consolidated Net Income shall be a deficit, minus 100% of such deficit), plus plus (bB) 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 Issuer), (y) Equity Interests of a Person (other than the Issuer or an Affiliate of the Issuer) engaged in a Permitted Business and (z) other assets used in any Permitted Business, in the fair market value case of Property clauses (i) and (ii), received by the Company from (1) any capital Issuer since the Prior Issue Date as a contribution to the Company after June 9, 1997 its common equity capital or any issue or sale after June 9, 1997 of Qualified Stock (other than to any Subsidiary of the Company) and (2) from the issue or sale after June 9, 1997 of any Indebtedness Qualified Equity Interests of the Issuer or other from the issue or sale of convertible or exchangeable Disqualified Equity Interests or convertible or exchangeable debt securities of the Company convertible into or exercisable for Qualified Stock of the Company Issuer that have been so converted into or exercisedexchanged for such Qualified Equity Interests (other than Equity Interests or debt securities sold to a Subsidiary of the Issuer), as the case may be, plus and (cB) $86.0 million, which is equal to the aggregate principal net cash proceeds, if any, received by the Issuer or any of its Restricted Subsidiaries upon any conversion or exchange described in clause (A) above, plus (C) 100% of (A) the aggregate amount by which Indebtedness (other than any Subordinated Indebtedness) of the Company's 6-7/8% Convertible Subordinated Notes due 2002 that were converted into Issuer or any Restricted Subsidiary is reduced on the Company's Common Equity prior to Issuer’s consolidated balance sheet upon the conversion or exchange after the Issue DatePrior Date of any such Indebtedness into or for Qualified Equity Interests of the Issuer and (B) the aggregate net cash proceeds, plus if any, received by the Issuer or any of its Restricted Subsidiaries upon any conversion or exchange described in clause (dA) above, plus (D) in the case of the disposition or repayment of or return on any Investment constituting that was treated as a Restricted Payment made after the June 9, 1997Prior Issue Date, an amount (to the extent not included in the calculation computation of the Consolidated Net Income referred to in (a)Income) equal to 100% of the lesser of aggregate amount received by the Issuer or any Restricted Subsidiary in cash or other property (xvalued at the Fair Market Value thereof) as the return of capital with respect to such Investment (including by dividend, distribution or sale of Capital Stock) and (y) the amount of such Investment that was treated as a Restricted Payment, in either case, less the cost of the disposition or repayment of such Investment and net of taxes, plus (to the extent not included in the calculation E) upon a Redesignation of the Consolidated Net Income referred to in (a)), plus (e) with respect to any an Unrestricted Subsidiary that is redesignated as a Restricted Subsidiary after June 9, 1997 in accordance with the definition of Unrestricted Subsidiary (so long as the designation of such Subsidiary as an Unrestricted Subsidiary was treated as a Restricted Payment made after June 9, 1997 and only to the extent not included in the calculation of the Consolidated Net Income referred to in (a)), an amount equal to the lesser of (x) the proportionate interest of the Company or a Restricted Subsidiary in an amount equal to the excess of (I) the total assets of such Subsidiary, valued on an aggregate basis at the lesser of book value and Fair Market Value thereof, over (II) the total liabilities of such Subsidiary, determined in accordance with GAAP, and (y) the Designation Amount at the time of such Subsidiary's designation as an Unrestricted Subsidiary, plus (f) $50 million minus (g) the aggregate amount of all Restricted Payments (other than Restricted Payments referred to in clause (C) of the Issuer’s proportionate interest in such Subsidiary immediately succeeding paragraph) made after June 9, 1997 through the Issue Datefollowing such Redesignation. (b) Clauses (ii) and (iii) of paragraph Notwithstanding the foregoing, the provisions set forth in clause (a) will not prohibit: (A) the payment of any dividend within 60 days of its declaration if such dividend could have been made on the date of its declaration without violation of the provisions of this Indenture; (B) the repurchase, redemption or retirement of any shares of Capital Stock of the Company in exchange for, or out of the net proceeds of the substantially concurrent sale (other than to a Subsidiary of the Company) of, other shares of Qualified Stock; and (C) 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 Subsidiary held by officers or employees or former officers or employees of the Company or any Subsidiary (or their estates or beneficiaries under their estates) not to exceed $20 million in the aggregate since the Issue Date; provided, however, that each Restricted Payment described in clauses (A) and (B) of this sentence shall be taken into account for purposes of computing the aggregate amount of all Restricted Payments pursuant to clause (iii) of paragraph (a). (c) For purposes of determining the aggregate and permitted amounts of Restricted Payments made, the amount of any guarantee of any Investment in any Person that was initially treated as a Restricted Payment and which was subsequently terminated or expired, net of any amounts paid by the Company or any Restricted Subsidiary in respect of such guarantee, shall be deducted. (d) In determining the "fair market value of Property" for purposes of clause (iii) of the paragraph (a), Property other than cash, Cash Equivalents and Marketable Securities shall be deemed to be equal in value to the "equity value" of the Capital Stock or other securities issued in exchange therefor. The "equity value" of such Capital Stock or other securities shall be equal to (i) the number of shares of Common Equity issued in the transaction (or issuable upon conversion or exercise of the Capital Stock or other securities issued in the transaction) multiplied by the closing sale price of the Common Equity on its principal market on the date of the transaction (less, in the case of Capital Stock or other securities which require the payment of consideration at the time of conversion or exercise, the aggregate consideration payable thereupon) or (ii) if the Common Equity is not then traded on the New York Stock Exchange, American Stock Exchange or Nasdaq National Market, or if the Capital Stock or other securities issued in the transaction do not consist of Common Equity (or Capital Stock or other securities convertible into or exercisable for Common Equity), the value of such Capital Stock or other securities as determined by a nationally recognized investment banking firm retained by the Board of Directors of the Company.Section

Limitations on Restricted Payments. (a) Until the Notes are rated Investment Grade by both Rating Agencies (after which time the following covenant will no longer be in effect), the Company The Issuer will not, and will not cause or permit any Restricted Subsidiary to, directly or indirectly, make any Restricted Payment unlessif at the time of such Restricted Payment: (i) no Default or Event of A Default shall have occurred and be continuing at the time of or immediately after giving effect to such Restricted Payment;shall occur as a consequence thereof; or (ii) immediately after giving effect to The amount of such Restricted Payment, the Company could incur at least $1.00 of Indebtedness pursuant when added to Section 3.02(a) hereof; and (iii) immediately after giving effect to such Restricted Payment, the aggregate amount of all other Restricted Payments (including the Fair Market Value of any non-cash Restricted Payment) declared or made after the Issue Date does not exceed (other than Restricted Payments made pursuant to clause (ii), (iii), (iv), (v), (vi), (viii), (ix) or (x) of Section 6.09(b)), exceeds the sum (the “Restricted Payments Basket”) of (awithout duplication): (1) 50% of the Consolidated Net Income of the Company on a cumulative basis during for the period (taken as one accounting period) from and including April 1, 1998 and ending on the last day beginning of the Company's first fiscal quarter immediately preceding commencing after the date Issue Date to the end of such Restricted Payment the Issuer’s most recently ended fiscal quarter for which consolidated financial statements are available (or in the event or, if such Consolidated Net Income shall be a deficit, minus 100% of such aggregate deficit), plus plus (b2) Subject to Section 6.09(b)(ii), 100% of the aggregate net cash proceeds of and the fair market value of Property received by the Company from Issuer and 100% of the Fair Market Value at the time of receipt of assets other than cash, if any, received by the Issuer, either (1x) any capital contribution as contributions to the Company common equity of the Issuer after June 9, 1997 the Issue Date or any issue or (y) from the issuance and sale after June 9, 1997 of Qualified Stock (other than to any Subsidiary of the Company) and (2) the issue or sale Equity Interests after June 9, 1997 of any Indebtedness or other securities of the Company convertible into or exercisable for Qualified Stock of the Company that have been so converted or exercised, as the case may be, plus (c) $86.0 million, which is equal to the aggregate principal amount of the Company's 6-7/8% Convertible Subordinated Notes due 2002 that were converted into the Company's Common Equity prior to the Issue Date, plus other than (da) in any such proceeds or assets received from a Subsidiary of the Issuer; (b) Excluded Contributions; or (c) Designated Preferred Stock, plus (3) The aggregate amount by which Indebtedness (other than any Subordinated Indebtedness) incurred by the Issuer or any Restricted Subsidiary subsequent to the Issue Date is reduced on the Issuer’s balance sheet upon the conversion or exchange (other than by a Subsidiary of the Issuer) into Qualified Equity Interests (less the amount of any cash, or the fair value of assets, distributed by the Issuer or any Restricted Subsidiary upon such conversion or exchange (other than payments of interest with respect thereto), plus (4) In the case of the disposition or repayment of or return on any Investment constituting that was treated as a Restricted Payment made after the June 9, 1997Issue Date, an amount (to the extent not included in the calculation computation of the Consolidated Net Income referred to in (a)Income) equal to the lesser of (xi) 100% of the aggregate amount received by the Issuer or any Restricted Subsidiary in cash or other property (valued at the Fair Market Value thereof) as the return of capital with respect to such Investment (including by dividend, distribution or sale of Capital Stock) and (yii) the amount of such Investment that was treated as a Restricted Payment, in either case, less the cost plus (5) Upon a Redesignation of the disposition or repayment of such Investment (to the extent not included in the calculation of the Consolidated Net Income referred to in (a)), plus (e) with respect to any an Unrestricted Subsidiary that is redesignated as a Restricted Subsidiary after June 9Subsidiary, 1997 in accordance with the definition of Unrestricted Subsidiary (so long as the designation of such Subsidiary as an Unrestricted Subsidiary was treated as a Restricted Payment made after June 9, 1997 and only to the extent not included in the calculation of the Consolidated Net Income referred to in (a)), an amount equal to the lesser of (xi) the proportionate interest of the Company or a Restricted Subsidiary in an amount equal to the excess of (I) the total assets of such Subsidiary, valued on an aggregate basis at the lesser of book value and Fair Market Value thereof, over (II) of the total liabilities of Issuer’s proportionate interest in such Subsidiary, determined in accordance with GAAPSubsidiary immediately following such Redesignation, and (y) the Designation Amount at the time of such Subsidiary's designation as an Unrestricted Subsidiary, plus (f) $50 million minus (gii) the aggregate amount of all the Issuer’s Investments in such Subsidiary to the extent such Investments reduced the Restricted Payments (other than Restricted Payments referred to in clause (C) of the immediately succeeding paragraph) made after June 9, 1997 through the Issue DateBasket and were not previously repaid or otherwise reduced. (b) Clauses (ii) and (iii) of paragraph (a) The foregoing provisions will not prohibit: : (Ai) The payment by the payment Issuer or any Restricted Subsidiary of any dividend or the consummation of any redemption within 60 days after the date of its declaration of the dividend or giving or any redemption notice, if such dividend could have been made on the date of its declaration without violation of or notice, the payment or redemption would have complied with the provisions of this Indenture; ; (Bii) the repurchase, redemption or retirement The making of any shares of Capital Stock of the Company Restricted Payment in exchange for, or out of or with the net cash proceeds of the substantially concurrent issuance and sale (other than to a Subsidiary of the CompanyIssuer) of, other shares Qualified Equity Interests of the Issuer or from the substantially concurrent contribution of common equity capital to the Issuer; provided, that net cash proceeds from the issuance and sale of Qualified Stock; and Equity Interests or from contributions to equity capital of the Issuer under this clause (Cii) shall not be included for purpose of calculating amounts under Section 6.09(a)(ii)(2); (iii) The redemption of Subordinated Indebtedness of the purchase, redemption Issuer or other acquisition, cancellation or retirement for value of Capital Stockany Restricted Subsidiary (a) in exchange for, or options, warrants, equity appreciation rights or other rights to purchase or acquire Capital Stock, out of the Company proceeds of the substantially concurrent issuance and sale of, Qualified Equity Interests, (b) in exchange for, or any Subsidiary out of the proceeds of the substantially concurrent incurrence of, Refinancing Indebtedness permitted to be incurred under Section 6.08 and the other terms of this Indenture; (iv) Payments by the Issuer to redeem Equity Interests of the Issuer held by officers officers, directors or employees or former officers officers, directors or employees of the Company or any Subsidiary (or their transferees, estates or beneficiaries under their estates) not to exceed $20 million in the aggregate since the Issue Date), upon their death, disability, retirement, severance or termination of employment or service; provided, howeverthat the aggregate cash consideration paid for all such redemptions shall not exceed the sum of (A) $2.0 million during any calendar year (with unused amounts being available to be used in the following calendar year, but not in any succeeding calendar year) plus (B) the amount of any net cash proceeds received by or contributed to the Issuer from the issuance and sale after the Issue Date of Qualified Equity Interests of the Issuer to its officers, directors or employees that have not been applied to the payment of Restricted Payments pursuant to this clause (iv), plus (C) the net cash proceeds of any “key-man” life insurance policies that have not been applied to the payment of Restricted Payments pursuant to this clause (iv); (v) Payments of cash, dividends, distributions, advances or other Restricted Payments by the Issuer or any Restricted Subsidiary to allow the payment of cash in lieu of the issuance of fractional shares or upon the purchase, redemption or acquisition of fractional shares, including in connection with (i) the exercise of options or warrants, (ii) the conversion or exchange of Equity Interests, (iii) stock dividends, splits or combinations or business combinations, or (iv) the conversion of the Notes or any payment made with respect thereto; (vi) Repurchases of Equity Interests (i) deemed to occur upon the exercise of stock options or other similar stock-based awards under equity plans of the Issuer or any of the Issuer’s Restricted Subsidiaries, warrants or other Equity Interests to the extent such Equity Interests represent a portion of the exercise price of those stock options, other similar stock-based awards under equity plans of the Issuer or any Restricted Subsidiary, warrants or other Equity Interests or (ii) in connection with a gross up for tax withholding related to such Equity Interests; (vii) Additional Restricted Payments of $5.0 million; (viii) Restricted Payments that are made with Excluded Contributions; (ix) The redemption, of Indebtedness that is contractually subordinated to the Notes pursuant to provisions similar to those described in Section 3.01 or Section 6.11 hereof; provided that, prior to such redemption, the Issuer (or a third party to the extent permitted by this Indenture) has made a Change of Control Offer or Asset Sale Offer, as the case may be, with respect to the Notes as a result of such Fundamental Change of Control or Asset Sale, as the case may be, and has repurchased all Notes validly tendered and not withdrawn in connection with such Fundamental Change of Control Offer or Asset Sale Offer, as the case may be; (x) The distribution, as a dividend or otherwise, of shares of Capital Stock of, or Indebtedness owed to the Issuer or a Restricted Subsidiary of the Issuer by, Unrestricted Subsidiaries; (xi) Any Restricted Payment made in connection with the Transactions; (xii) Payments and distributions to dissenting stockholders pursuant to applicable law, pursuant to or in connection with a consolidation, merger or transfer of all or substantially all of the assets of the Issuer and its Restricted Subsidiaries taken as a whole that complies with the terms of this Indenture, including Article Seven hereof; or (xiii) Repurchases of the Notes; provided, that each (a) in the case of any Restricted Payment pursuant to clause (iii)(c) above, no Default shall have occurred and be continuing or occur as a consequence thereof and (b) no issuance and sale of Qualified Equity Interests pursuant to clause (ii), (iii) or (iv)(B) above shall increase the Restricted Payments Basket. For purposes of determining compliance with this Section 6.09, in the event that a Restricted Payment meets the criteria of more than one of the categories of Restricted Payments described in clauses (Ai) and through (Bxiii) of this sentence shall Section 6.09(b) hereof, or is entitled to be taken into account for purposes of computing the aggregate amount of all Restricted Payments incurred pursuant to clause (iiiSection 6.09(a) of paragraph (a). (c) For purposes of determining the aggregate and permitted amounts of Restricted Payments madehereof, the amount of any guarantee of any Investment in any Person that was initially treated as a Issuer will be entitled to classify such Restricted Payment and which was subsequently terminated or expired, net of any amounts paid by the Company or any Restricted Subsidiary in respect of such guarantee, shall be deducted. (d) In determining the "fair market value of Property" for purposes of clause (iii) of the paragraph (a), Property other than cash, Cash Equivalents and Marketable Securities shall be deemed to be equal in value to the "equity value" of the Capital Stock or other securities issued in exchange therefor. The "equity value" of such Capital Stock or other securities shall be equal to (i) the number of shares of Common Equity issued in the transaction (or issuable upon conversion or exercise of the Capital Stock or other securities issued in the transactionportion thereof) multiplied by the closing sale price of the Common Equity on its principal market on the date of the transaction (less, in the case of Capital Stock its payment or other securities which require the payment of consideration at the time of conversion or exercise, the aggregate consideration payable thereupon) or (ii) if the Common Equity is not then traded on the New York Stock Exchange, American Stock Exchange or Nasdaq National Market, or if the Capital Stock or other securities issued in the transaction do not consist of Common Equity later reclassify such Restricted Payment (or Capital Stock or other securities convertible into or exercisable for Common Equity), the value of such Capital Stock or other securities as determined by a nationally recognized investment banking firm retained by the Board of Directors of the Companyportion thereof) in any manner that complies with this Section 6.09.

Limitations on Restricted Payments. (a) Until Hovnanian and the Notes are rated Investment Grade by both Rating Agencies (after which time the following covenant will no longer be in effect), the Company Issuer will not, and will not cause or permit any Restricted Subsidiary to, directly or indirectly, make any Restricted Payment unless: (i) no Default or Event of Default shall have occurred and be continuing at the time of or immediately after giving effect to such Restricted Payment; (ii) immediately after giving effect to such Restricted Payment, the Company Hovnanian could incur at least $1.00 of Indebtedness pursuant to Section 3.02(a3.05(a) hereof; and (iii) immediately after giving effect to such Restricted Payment, the aggregate amount of all Restricted Payments (including the Fair Market Value of any non-cash Restricted Payment) declared or made after the Issue Date May 4, 1999 does not exceed the sum of of: (aA) 50% of the Consolidated Net Income of the Company Hovnanian on a cumulative basis during the period (taken as one accounting period) from and including April February 1, 1998 1999 and ending on the last day of the Company's Hovnanian’s fiscal quarter immediately preceding the date of such Restricted Payment (or in the event such Consolidated Net Income shall be a deficit, minus 100% of such deficit), plus plus (bB) 100% of the aggregate net cash proceeds of and the fair market value Fair Market Value of Property received by the Company Hovnanian from (1) any capital contribution to the Company Hovnanian after June 9February 1, 1997 1999 or any issue or sale after June 9February 1, 1997 1999 of Qualified Stock (other than to any Subsidiary of the CompanyHovnanian) and (2) the issue or sale after June 9February 1, 1997 1999 of any Indebtedness or other securities of the Company Hovnanian convertible into or exercisable for Qualified Stock of the Company Hovnanian that have been so converted or exercised, as the case may be, plus plus (c) $86.0 million, which is equal to the aggregate principal amount of the Company's 6-7/8% Convertible Subordinated Notes due 2002 that were converted into the Company's Common Equity prior to the Issue Date, plus (dC) in the case of the disposition or repayment of any Investment constituting a Restricted Payment made after the June 9May 4, 19971999, an amount (to the extent not included in the calculation of the Consolidated Net Income referred to in (aA)) equal to the lesser of (x) the return of capital with respect to such Investment (including by dividend, distribution or sale of Capital Stock) and (y) the amount of such Investment that was treated as a Restricted Payment, in either case, less the cost of the disposition or repayment of such Investment (to the extent not included in the calculation of the Consolidated Net Income referred to in (aA)), plus plus (eD) with respect to any Unrestricted Subsidiary that is redesignated as a Restricted Subsidiary after June 9May 4, 1997 1999, in accordance with the definition of Unrestricted Subsidiary (so long as the designation of such Subsidiary as an Unrestricted Subsidiary was treated as a Restricted Payment made after June 9the Issue Date, 1997 and only to the extent not included in the calculation of the Consolidated Net Income referred to in (aA)), an amount equal to the lesser of (x) the proportionate interest of the Company Hovnanian or a Restricted Subsidiary in an amount equal to the excess of (I) the total assets of such Subsidiary, valued on an aggregate basis at the lesser of book value and Fair Market Value thereof, over (II) the total liabilities of such Subsidiary, determined in accordance with GAAP, and (y) the Designation Amount at the time of such Subsidiary's ’s designation as an Unrestricted Subsidiary, plus plus (fE) $50 million minus 17 million, minus (gF) the aggregate amount of all Restricted Payments (other than Restricted Payments referred to in clause (Ciii) of the immediately succeeding paragraphparagraph (b) below) made after June 9February 1, 1997 1999 through the Issue DateMay 4, 1999. (b) Clauses (ii) and (iii) of paragraph (a) will not prohibit: : (Ai) the payment of any dividend within 60 days of its declaration if such dividend could have been made on the date of its declaration without violation of the provisions of this the Indenture; ; (Bii) the repurchase, redemption or retirement of any shares of Capital Stock of the Company Hovnanian in exchange for, or out of the net proceeds of the substantially concurrent sale (other than to a Subsidiary of the CompanyHovnanian) of, other shares of Qualified Stock; and and (Ciii) 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 Hovnanian or any Subsidiary held by officers or employees or former officers or employees of the Company Hovnanian or any Subsidiary (or their estates or beneficiaries under their estates) not to exceed $20 10 million in the aggregate since the Issue Date; providedMay 4, however, that each Restricted Payment described in clauses (A) and (B) of this sentence shall be taken into account for purposes of computing the aggregate amount of all Restricted Payments pursuant to clause (iii) of paragraph (a). (c) For purposes of determining the aggregate and permitted amounts of Restricted Payments made, the amount of any guarantee of any Investment in any Person that was initially treated as a Restricted Payment and which was subsequently terminated or expired, net of any amounts paid by the Company or any Restricted Subsidiary in respect of such guarantee, shall be deducted. (d) In determining the "fair market value of Property" for purposes of clause (iii) of the paragraph (a), Property other than cash, Cash Equivalents and Marketable Securities shall be deemed to be equal in value to the "equity value" of the Capital Stock or other securities issued in exchange therefor. The "equity value" of such Capital Stock or other securities shall be equal to (i) the number of shares of Common Equity issued in the transaction (or issuable upon conversion or exercise of the Capital Stock or other securities issued in the transaction) multiplied by the closing sale price of the Common Equity on its principal market on the date of the transaction (less, in the case of Capital Stock or other securities which require the payment of consideration at the time of conversion or exercise, the aggregate consideration payable thereupon) or (ii) if the Common Equity is not then traded on the New York Stock Exchange, American Stock Exchange or Nasdaq National Market, or if the Capital Stock or other securities issued in the transaction do not consist of Common Equity (or Capital Stock or other securities convertible into or exercisable for Common Equity), the value of such Capital Stock or other securities as determined by a nationally recognized investment banking firm retained by the Board of Directors of the Company.1999;

Limitations on Restricted Payments. (a) Until the Notes are rated Investment Grade by both Rating Agencies (after which time the following covenant will no longer be in effect), the The Company will not, and will not cause or permit any Restricted Subsidiary to, directly or indirectly, make any Restricted Payment unless: (i) no Default or Event of Default shall have occurred and be continuing at the time of or immediately after giving effect to such Restricted Payment; (ii) immediately after giving effect to such Restricted Payment, the Company could incur Incur at least $1.00 of Ratio Indebtedness pursuant to Section 3.02(a) hereof4.06(a); and (iii) immediately after giving effect to such Restricted Payment, the aggregate amount of all Restricted Payments (including the Fair Market Value of any non-cash Restricted Payment) declared or made on or after the Issue Date May 10, 2011 (other than those Restricted Payments described in Section 4.07(b)(iii) through Section 4.07(b)(xiii)) does not exceed the sum of of: (aA) 50% of the Consolidated Net Income of the Company on a cumulative basis during the period (taken as one accounting period) from and including April October 1, 1998 2013 and ending on the last day of the Company's ’s fiscal quarter immediately preceding the date of such Restricted Payment (or in the event such Consolidated Net Income shall be a deficit, minus 100% of such deficit), plus plus (bB) 100% of the aggregate net cash proceeds of and the fair market value Fair Market Value of any Property or other asset received by the Company from (1) any capital contribution to the Company after June 9May 10, 1997 2011 or any issue or sale after June 9May 10, 1997 2011 of any Qualified Stock (other than to any Subsidiary of the Company) Equity Interests and (2) the issue or sale after June 9May 10, 1997 2011 of any Indebtedness or other securities of the Company convertible into or exercisable for Qualified Stock of the Company Equity Interests that have been so converted or exercised, as the case may be, plus plus (c) $86.0 million, which is equal to the aggregate principal amount of the Company's 6-7/8% Convertible Subordinated Notes due 2002 that were converted into the Company's Common Equity prior to the Issue Date, plus (dC) in the case of the a distribution on or disposition or repayment of any Investment constituting a Restricted Payment made after the June 9, 1997Investment, an amount (to the extent not included in the calculation of the Consolidated Net Income referred to in clause (aA)) equal to the lesser of (x) the return of capital with respect to such Investment (including by dividend, distribution or sale of Capital StockEquity Interests) and (y) the amount of such Investment that was treated as a Restricted Payment, in either case, less the cost of the disposition or repayment of such Investment (to the extent not included in the calculation of the Consolidated Net Income referred to in clause (aA)), plus plus (eD) with respect to any Unrestricted Subsidiary that is redesignated as a Restricted Subsidiary after June 9May 10, 1997 2011 in accordance with the definition of “Unrestricted Subsidiary Subsidiary” (so long as the designation of such Subsidiary as an Unrestricted Subsidiary was treated as a Restricted Payment made after June 9May 10, 1997 2011, and only to the extent not included in the calculation of the Consolidated Net Income referred to in clause (aA)), an amount equal to the lesser of (x) the proportionate interest of the Company or a any Restricted Subsidiary in an amount equal to the excess of (I) the total assets of such Unrestricted Subsidiary, valued on an aggregate basis at the lesser of book value and Fair Market Value thereof, over (II) the total liabilities of such Unrestricted Subsidiary, determined in accordance with GAAP, and (y) the Designation Amount at the time of such Unrestricted Subsidiary's ’s designation as an Unrestricted Subsidiary, plus (f) $50 million minus (g) the aggregate amount of all Restricted Payments (other than Restricted Payments referred to in clause (C) of the immediately succeeding paragraph) made after June 9, 1997 through the Issue Date. (b) Clauses (ii) and (iii) of paragraph (aSection 4.07(a) will not prohibit: : (Ai) the payment of any dividend or redemption of any Equity Interests or Subordinated Indebtedness within 60 days of its declaration if such dividend could have been made on after the date of its declaration without violation thereof or call for redemption if, at such date of declaration or call for redemption, such payment or redemption was permitted by the provisions of this Indenture; (B) the repurchase, redemption or retirement of any shares of Capital Stock preceding paragraph as of the Company date of declaration (and the payment itself will be deemed to have been paid on such date of declaration); (ii) any Restricted Payment made in exchange for, or out of the net proceeds of the substantially concurrent sale (other than to a Subsidiary of the Company) of, other shares of Qualified Stock; and Equity Interests; (Ciii) the purchase, redemption repayment, redemption, repurchase, defeasance or other acquisition, cancellation acquisition or retirement for value by the Company of Capital Stockany Subordinated Indebtedness of the Company, the Corporate Issuer or any Restricted Subsidiary in exchange for, or optionsout of proceeds of, warrantsRefinancing Indebtedness Incurred as permitted by and in compliance with Section 4.06; (iv) Restricted Payments made after the Issue Date not to exceed an aggregate amount (net of any returns of capital with respect to such Investments (including by dividend, equity appreciation rights distribution or other rights to purchase or acquire Capital Stock, sale)) of $50,000,000; (v) [Reserved]; (vi) Restricted Payments made after the Company or any Subsidiary held by officers or employees or former officers or employees Issue Date in respect of the Company or any Subsidiary (or their estates or beneficiaries under their estates) Specified Obligations not to exceed $20 million in the aggregate since the Issue Date70,000,000; provided, however, that each such Restricted Payment Payments may exceed $70,000,000 to the extent that the Company receives a cash equity contribution from JFSCI in the amount of such excess within 10 Business Days following such Restricted Payment; (vii) Tax Distributions (other than payments with respect to Specified Obligations); (viii) [Reserved]; (ix) the declaration and payment of dividends to holders of any class or series of Disqualified Equity Interests of the Company or any of its Restricted Subsidiaries issued in accordance with and to the extent permitted by Section 4.06; provided, however, that, at the time of payment of such dividend, no Default shall have occurred and be continuing (or result therefrom); (x) repurchases of Equity Interests deemed to occur upon exercise of equity options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants; (xi) Restricted Payments that are made with Excluded Contributions; (xii) the repurchase, redemption or other acquisition or retirement for value of any Subordinated Indebtedness pursuant to provisions similar to those described in clauses Sections 4.10 and 4.12; provided, however, that all Notes tendered by Holders in connection with an Asset Sale Offer or a Change of Control Offer, as applicable, have been purchased, redeemed, defeased or acquired for value; or (Axiii) and Restricted Investments after the Issue Date in joint ventures (Bother than amounts expended in respect of Specified Obligations) in an amount not to exceed an aggregate amount (net of any returns of capital with respect to such Investments (including by dividend, distribution or sale)) of this sentence shall be taken into account for purposes of computing the aggregate amount of all Restricted Payments $100,000,000 (any Investment made pursuant to this clause (iiixiii) of paragraph (abeing an Investment made pursuant to the “JV Payment Basket”). (c) For purposes of determining the aggregate and permitted amounts of Restricted Payments made, the amount of any guarantee of any Investment in any Person that was initially treated as a Restricted Payment and which was subsequently terminated or expired, net of any amounts paid by either of the Company Issuers or any Restricted Subsidiary in respect of such guarantee, shall be deducted. (d) In determining the "fair market value of Property" for purposes of clause (iii) of the paragraph (a), Property other than cash, Cash Equivalents and Marketable Securities shall be deemed to be equal in value to the "equity value" of the Capital Stock or other securities issued in exchange therefor. The "equity value" of such Capital Stock or other securities shall be equal to (i) the number of shares of Common Equity issued in the transaction (or issuable upon conversion or exercise of the Capital Stock or other securities issued in the transaction) multiplied by the closing sale price of the Common Equity on its principal market on the date of the transaction (less, in the case of Capital Stock or other securities which require the payment of consideration at the time of conversion or exercise, the aggregate consideration payable thereupon) or (ii) if the Common Equity is not then traded on the New York Stock Exchange, American Stock Exchange or Nasdaq National Market, or if the Capital Stock or other securities issued in the transaction do not consist of Common Equity (or Capital Stock or other securities convertible into or exercisable for Common Equity), the value of such Capital Stock or other securities as determined by a nationally recognized investment banking firm retained by the Board of Directors of the Company.

Limitations on Restricted Payments. (a) Until the Notes are rated Investment Grade by both Rating Agencies (Agencies, after which time the following covenant will no longer shall be in effect), binding on the Company will not, and will not cause or permit any Restricted Subsidiary toSubsidiary: (a) neither the Company nor any of its Restricted Subsidiaries shall, directly or indirectly, make any Restricted Payment unlessPayment, if, after giving effect thereto on a pro forma basis: (i) no Default or Event the Company could not Incur $1.00 of Default shall have occurred and be continuing at the time additional indebtedness pursuant to provisions described in paragraph (b) of or immediately after giving effect to such Restricted PaymentSection 5.02 hereof; (ii) immediately after giving effect to such Restricted Payment, the Company could incur at least $1.00 a Default or an Event of Indebtedness pursuant to Section 3.02(a) hereofDefault would occur or be continuing; andor (iii) immediately after giving effect to such Restricted Payment, the aggregate amount of all Restricted Payments (Payments, including the Fair Market Value of any non-cash such proposed Restricted Payment) declared or , made by the Company and its Restricted Subsidiaries, from and after the Issue Date does not and on or prior to the date of such Restricted Payment, shall exceed the sum of (athe “Basket”) of: (A) 50% of the Consolidated Net Income of the Company on a cumulative basis during for the period (taken as one accounting period) from ), commencing with the first full fiscal quarter which includes the Issue Date, to and including April 1, 1998 and ending on the last day of the Company's fiscal quarter ended immediately preceding prior to the date of such Restricted Payment each calculation for which internal financial statements are available (or in the event such or, if Consolidated Net Income shall be a deficitfor such period is negative, then minus 100% of such deficit), plus ; plus (bB) 100% of the aggregate net cash proceeds of and the fair market value of Property received by the Company from (1) any capital contribution to the Company after June 9, 1997 or any issue or sale after June 9, 1997 of Qualified Stock (other than to any Subsidiary of the Company) and (2) the issue or sale after June 9, 1997 amount of any Indebtedness or other securities of the Company convertible or a Restricted Subsidiary Incurred after the Issue Date that is converted into or exercisable exchanged for Qualified Capital Stock of the Company that have been so converted or exercised, as the case may be, plus (c) $86.0 million, which is equal to the aggregate principal amount of the Company's 6-7/8% Convertible Subordinated Notes due 2002 that were converted into the Company's Common Equity prior to after the Issue Date, plus ; plus (dC) in to the case of the disposition or repayment of extent that any Restricted Investment constituting a Restricted Payment made after the June 9date of this First Supplemental Indenture is sold for cash or otherwise reduced or liquidated or repaid for cash, 1997in whole or in part, an amount (to the extent not included in the calculation of the Consolidated Net Income referred to in (a)) equal to the lesser of (x1) the cash return of capital with respect to such Restricted Investment (including by dividend, distribution or sale of Capital Stock) and (y) the amount of such Investment that was treated as a Restricted Payment, in either case, less the cost of disposition, if any) and (2) the disposition or repayment initial amount of such Investment Restricted Investment; plus (D) unless accounted for pursuant to clause (B) above, 100% of the aggregate net proceeds (after payment of reasonable out-of-pocket expenses, commissions and discounts incurred in connection therewith) received by the Company from the sale or issuance (other than to a Subsidiary of the Company) of its Qualified Capital Stock after the Issue Date and on or prior to the extent not included in the calculation date of the Consolidated Net Income referred to in such Restricted Payment; plus (a)), plus (eE) with respect to any Unrestricted Subsidiary that is redesignated as a Restricted Subsidiary after June 9, 1997 the Issue Date in accordance with the definition of Unrestricted Subsidiary (so long as the designation of such Subsidiary as an Unrestricted Subsidiary was treated as a Restricted Payment made after June 9, 1997 the Issue Date and only to the extent not included in the calculation of the Consolidated Net Income referred to in (a)Income), an amount equal to the lesser of (x) the proportionate interest book value in accordance with GAAP of the Company Company’s or a Restricted Subsidiary Subsidiary’s Investment in an amount equal to the excess of (I) the total assets of such Subsidiary, valued on an aggregate basis at the lesser of book value and Fair Market Value thereof, over (II) the total liabilities of such Subsidiary, determined in accordance with GAAP, and (y) the Designation Amount at the time of such Subsidiary's ’s designation as an Unrestricted Subsidiary; plus (F) 100% of tax benefits, plus if any, for the period (f) $50 million minus (g) taken as one accounting period), commencing with the aggregate amount of all Restricted Payments (other than Restricted Payments referred to in clause (C) of the immediately succeeding paragraph) made after June 9, 1997 through first full fiscal quarter which includes the Issue Date, realized by the Company from stock option exercises and from the issuance of the Company’s Qualified Capital Stock pursuant to equity-based employee benefit plans that are recorded as an increase to shareholders’ equity in accordance with GAAP; plus (G) $50,000,000. (b) Clauses (ii) and (iii) of paragraph The foregoing clause (a) will does not prohibit: : (Ai) the payment of any dividend within 60 days after the date of its declaration if such dividend could have been made on the date of its declaration without violation of in compliance with the provisions of this Indenture; foregoing provisions; (Bii) the repurchasepayment of cash dividends or other distributions to any Equity Investor or joint venture participant of a Restricted Subsidiary with respect to a class of Capital Stock of such Restricted Subsidiary or joint venture owned by such Equity Investor or joint venture participant so long as the Company or its Restricted Subsidiaries simultaneously receive a dividend or distribution with respect to their Investment in such Restricted Subsidiary or joint venture either in U.S. Legal Tender or the same form as the dividend or distribution received by such Equity Investor or joint venture participant and in proportion to their proportionate interest in the same class of Capital Stock of such Restricted Subsidiary (or in the case of a joint venture that is a partnership or a limited liability company, redemption as provided for in the documentation governing such joint venture), as the case may be; (iii) repurchases or retirement of any shares redemptions of Capital Stock of the Company from any former directors, officers and employees of the Company in the aggregate up to $3,000,000 during any calendar year (provided, however, that any amounts not used in any calendar year may be used in any subsequent year); (iv) the retirement of Capital Stock of the Company or the retirement in Indebtedness of the Company, in exchange for, for or out of the net proceeds of the a substantially concurrent sale (other than a sale to a Subsidiary of the Company) of, other shares of its Qualified Stock; Capital Stock and (C) the purchase, redemption retirement of Capital Stock or other acquisition, cancellation Indebtedness of a Restricted Subsidiary in exchange for or retirement for value out of the proceeds of a substantially concurrent sale of its Qualified Capital Stock, or optionsprovided that, warrants, equity appreciation rights or other rights to purchase or acquire Capital Stock, of the Company or any Subsidiary held by officers or employees or former officers or employees of the Company or any Subsidiary (or their estates or beneficiaries under their estates) not to exceed $20 million in the aggregate since the Issue Date; provided, however, that each Restricted Payment described in clauses (A) and (B) of this sentence shall be taken into account for purposes of computing the aggregate amount of all Restricted Payments pursuant to clause (iii) of paragraph (a). (c) For purposes of determining the aggregate and permitted amounts of Restricted Payments madecase, the amount of any guarantee of any Investment in any Person that was initially treated as a Restricted Payment and which was subsequently terminated or expired, net of any amounts paid by the Company or any Restricted Subsidiary in respect of such guarantee, shall be deducted. (d) In determining the "fair market value of Property" proceeds is excluded for purposes of clause (a)(iii)(D) above; or (v) repurchases by the Company of Capital Stock of the Company (from Persons other than officers or directors of the Company) in one or more open market and/or privately negotiated transactions of up to $85,000,000 in the aggregate at any time or from time to time on or before March 31, 2002; provided that any such repurchases not made pursuant to this clause (v) on or before March 31, 2002 may not be made at any subsequent time. Any Restricted Payment made in accordance with clauses (i) and (iii) of this paragraph shall reduce the paragraph Basket. In calculating the Basket, any Restricted Payment not made in cash and any non-cash amounts received for purposes of clause (a), Property other than cash, Cash Equivalents and Marketable Securities D) shall be deemed to be equal in valued at fair market value to the "equity value" of the Capital Stock or other securities issued in exchange therefor. The "equity value" of such Capital Stock or other securities shall be equal to (i) the number of shares of Common Equity issued in the transaction (or issuable upon conversion or exercise of the Capital Stock or other securities issued in the transaction) multiplied by the closing sale price of the Common Equity on its principal market on the date of the transaction (less, in the case of Capital Stock or other securities which require the payment of consideration at the time of conversion or exercise, the aggregate consideration payable thereupon) or (ii) if the Common Equity is not then traded on the New York Stock Exchange, American Stock Exchange or Nasdaq National Market, or if the Capital Stock or other securities issued in the transaction do not consist of Common Equity (or Capital Stock or other securities convertible into or exercisable for Common Equity), the value of such Capital Stock or other securities as determined by a nationally recognized investment banking firm retained in good faith by the Board of Directors of Directors, whose determination shall be conclusive and whose resolution with respect thereto shall be delivered to the CompanyTrustee promptly after the adoption thereof.”

Limitations on Restricted Payments. (a) Until the Notes are rated Investment Grade by both Rating Agencies (after which time the following covenant will no longer be in effect), the Company will The Issuer shall not, and will shall not cause or permit any Restricted Subsidiary to, directly or indirectly, make any Restricted Payment unlessif at the time of such Restricted Payment: (i) no Default or Event of a Default shall have occurred and be continuing at the time of or immediately after giving effect to such Restricted Paymentshall occur as a consequence thereof; (ii) immediately after giving effect the Issuer cannot incur $1.00 of additional Indebtedness pursuant to the Coverage Ratio Exception; or (iii) the amount of such Restricted Payment, the Company could incur at least $1.00 of Indebtedness pursuant when added to Section 3.02(a) hereof; and (iii) immediately after giving effect to such Restricted Payment, the aggregate amount of all other Restricted Payments (including the Fair Market Value of any non-cash Restricted Payment) declared or made after the Issue Date does not exceed (other than Restricted Payments made pursuant to clauses (ii), (iii), (iv), (v), (vi), (vii), (viii), (ix), (x), (xi) and (xii) of Section 4.11(b) hereof), exceeds the sum (the “Restricted Payments Basket”) of (awithout duplication): (A) 50% of the Consolidated Net Income of the Company on a cumulative basis during for the period (taken as one accounting period) from commencing on the first day of the fiscal quarter in which the Issue Date occurs to and including April 1, 1998 and ending on the last day of the Company's fiscal quarter ended immediately preceding prior to the date of such Restricted Payment calculation for which consolidated financial statements are available (or in the event or, if such Consolidated Net Income shall be a deficit, minus 100% of such aggregate deficit), plus plus (bB) 100% of the aggregate net cash proceeds of and the fair market value Fair Market Value of Property non-cash assets received by the Company Issuer either (x) as contributions to the common equity of the Issuer after the Issue Date or (y) from the issuance and sale of Equity Interests (other than Disqualified Equity Interests) or from the issue or sale of convertible or exchangeable Disqualified Equity Interests or debt securities to the extent converted into or exchanged for Equity Interests, in each case issued after the Issue Date, other than (1) any capital contribution such proceeds which are used to redeem Notes in accordance with paragraph 5(c) of the Notes or (2) any such proceeds or assets received from a Subsidiary of the Issuer, plus (C) the aggregate amount by which Indebtedness incurred by the Issuer or any Restricted Subsidiary subsequent to the Company after June 9, 1997 Issue Date is reduced on the Issuer’s balance sheet upon the conversion or any issue or sale after June 9, 1997 of Qualified Stock exchange (other than to any by a Subsidiary of the CompanyIssuer) and into Equity Interests (2other than Disqualified Equity Interests) (less the issue or sale after June 9, 1997 amount of any Indebtedness cash, or other securities the fair value of assets, distributed by the Company convertible into Issuer or exercisable for Qualified Stock of the Company that have been so converted any Restricted Subsidiary upon such conversion or exercisedexchange), as the case may be, plus plus (c) $86.0 million, which is equal to the aggregate principal amount of the Company's 6-7/8% Convertible Subordinated Notes due 2002 that were converted into the Company's Common Equity prior to the Issue Date, plus (dD) in the case of the disposition or repayment of or return on any Investment constituting that was treated as a Restricted Payment made after the June 9, 1997Issue Date, an amount (to the extent not included in the calculation computation of the Consolidated Net Income referred to in (a)Income) equal to the lesser of aggregate amount received by the Issuer or any Restricted Subsidiary in cash or other property (xvalued at the Fair Market Value thereof) as the return of capital with respect to such Investment Investment, plus (including by dividend, distribution or sale E) upon a Redesignation of Capital Stock) and (y) the amount of such Investment that was treated as a Restricted Payment, in either case, less the cost of the disposition or repayment of such Investment (to the extent not included in the calculation of the Consolidated Net Income referred to in (a)), plus (e) with respect to any an Unrestricted Subsidiary that is redesignated as a Restricted Subsidiary after June 9, 1997 in accordance with or the definition merger or consolidation of Unrestricted Subsidiary (so long as the designation of such Subsidiary as an Unrestricted Subsidiary was treated as a with or into the Issuer or any Restricted Payment made after June 9Subsidiary, 1997 and only to the extent not included in the calculation of the Consolidated Net Income referred to in (a)), an amount equal to the lesser of (xi) the proportionate interest of the Company or a Restricted Subsidiary in an amount equal to the excess of (I) the total assets of such Subsidiary, valued on an aggregate basis at the lesser of book value and Fair Market Value thereofof the Issuer’s proportionate interest in such Subsidiary immediately following such Redesignation, over (II) the total liabilities of such Subsidiary, determined in accordance with GAAPconsolidation or merger, and (y) the Designation Amount at the time of such Subsidiary's designation as an Unrestricted Subsidiary, plus (f) $50 million minus (gii) the aggregate amount of all the Issuer’s Investments in such Subsidiary to the extent such Investments reduced the Restricted Payments Basket and were not previously repaid or otherwise reduced, plus (other than F) 50% of any cash dividends received by the Issuer or a Restricted Payments referred to in clause (C) of the immediately succeeding paragraph) made Subsidiary after June 9, 1997 through the Issue DateDate from an Unrestricted Subsidiary, to the extent that such dividends were not otherwise included in Consolidated Net Income. (b) Clauses (ii) and (iii) of paragraph (a) will The foregoing provisions shall not prohibit: : (Ai) the payment by the Issuer or any Restricted Subsidiary of any dividend within 60 days after the date of its declaration thereof, if such dividend could have been made on the date of its declaration without violation of the payment would have complied with the provisions of this Supplemental Indenture; ; (Bii) the repurchase, redemption or retirement making of any shares of Capital Stock of the Company Restricted Payment in exchange for, or out of the net proceeds of the substantially concurrent issuance and sale of, Qualified Equity Interests; (iii) other than pursuant to a Subsidiary clause (viii) below, the redemption of Equity Interests of the Company) of, other shares of Qualified Stock; and (C) 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 Subsidiary Issuer held by officers officers, directors or employees or former officers officers, directors or employees of the Company or any Subsidiary (or their transferees, estates or beneficiaries under their estates), upon their death, disability, retirement, severance or termination of employment or service; provided that the aggregate cash consideration paid for all such redemptions shall not exceed (A) $5.0 million during any calendar year (with unused amounts being available to be used in the following calendar year, but not in any succeeding calendar year) plus (B) the amount of any net cash proceeds received by or contributed to the Issuer from the issuance and sale after the Issue Date of Qualified Equity Interests of the Issuer to its officers, directors or employees that have not been applied to the payment of Restricted Payments pursuant to this clause (iii), plus (C) the net cash proceeds of any “key-man” life insurance policies that have not been applied to the payment of Restricted Payments pursuant to this clause (iii); (iv) repurchases of Equity Interests that occur or are deemed to occur (A) upon the exercise of stock options, warrants or similar rights to the extent such Equity Interests represents a portion of the exercise price thereof, (B) as a result of Equity Interest being utilized to satisfy tax withholding obligations upon exercise of stock options or vesting of other equity awards and (C) upon the cancellation or forfeiture of stock options, warrants or other equity awards; (v) Restricted Payments pursuant to the Transactions; (vi) Restricted Payments if after giving effect thereto the Issuer’s Net Leverage Ratio is not greater than 3.0 to 1.0; (vii) other Restricted Payments in an amount not to exceed $20 75.0 million; (viii) the purchase or retirement of Class B Common Stock of the Issuer from any Permitted Holder in an aggregate amount not to exceed $20.0 million in any twelve-month period; (ix) so long as no Event of Default has occurred and is continuing or would arise as a result thereof, the payment by the Issuer of any dividend to the holders of any class or series of its Equity Interests on a pro rata basis among the holders of such class or series of Equity Interests in an aggregate since amount not to exceed $25.0 million in any twelve-month period; (x) the declaration and payment of regularly scheduled or accrued dividends to holders of any class or series of Disqualified Equity Interests issued on or after the Issue Date; provided, however, that each Restricted Payment described Date in clauses (A) and (B) of this sentence shall be taken into account for purposes of computing the aggregate amount of all Restricted Payments pursuant to clause (iii) of paragraph (a).compliance with Section 4.10 hereof; (cxi) For purposes of determining the aggregate and permitted amounts of Restricted Payments made, the amount of any guarantee of any Investment cash payments made in any Person that was initially treated as a Restricted Payment and which was subsequently terminated or expired, net of any amounts paid by the Company or any Restricted Subsidiary in respect of such guarantee, shall be deducted. (d) In determining the "fair market value of Property" for purposes of clause (iii) lieu of the paragraph issuance of fractional shares (a), Property other than cash, Cash Equivalents and Marketable Securities shall be deemed to be equal whether in value to connection with the "equity value" of the Capital Stock or other securities issued in exchange therefor. The "equity value" of such Capital Stock or other securities shall be equal to (i) the number of shares of Common Equity issued in the transaction (or issuable upon conversion or exercise of the Capital Stock or other securities issued in the transaction) multiplied by the closing sale price of the Common Equity on its principal market on the date of the transaction (lesswarrants, in the case of Capital Stock or other securities which require the payment of consideration at the time of conversion or exercise, the aggregate consideration payable thereupon) or (ii) if the Common Equity is not then traded on the New York Stock Exchange, American Stock Exchange or Nasdaq National Market, or if the Capital Stock or other securities issued in the transaction do not consist of Common Equity (or Capital Stock options or other securities convertible into or exercisable for Common Equityexchangeable into Equity Interests of the Issuer or otherwise); or (xii) the repurchase or redemption of common stock or Preferred Stock purchase rights issued in connection with any shareholder rights plans; provided that no proceeds from the issuance and sale of Qualified Equity Interests used to make a payment pursuant to clause (ii) or (iii)(B) above shall increase the Restricted Payments Basket. For purposes of determining compliance with this Section 4.11, in the event that a payment or other action meets the criteria of more than one of the exceptions described in clauses (i) through (xii) above, or is entitled to be made pursuant to Section 4.11(a) hereof (including any payment or other action that constitutes a “Permitted Investment”), the value of Issuer will be permitted to classify such Capital Stock payment or other securities as determined action on the date of its occurrence in any manner that complies with this Section 4.11 (including any payment or other action that constitutes a “Permitted Investment”). Payments or other actions permitted by this Section 4.11 need not be permitted solely by reference to one provision permitting such payment or other action (including any payment or other action that constitutes a nationally recognized investment banking firm retained “Permitted Investment”), but may be permitted in part by the Board one such provision and in part by one or more other provisions of Directors of the Companythis Section 4.11 permitting payment or other action (including any payment or other action that constitutes a “Permitted Investment”).

Limitations on Restricted Payments. (a) Until the Notes are rated Investment Grade by both Rating Agencies (after which time the following covenant will no longer be in effect), the Company The Issuer will not, and will not cause or permit any Restricted Subsidiary to, directly or indirectly, make any Restricted Payment unlessif at the time of such Restricted Payment: (i1) no Default or Event of a Default shall have occurred and be continuing at the time of or immediately after giving effect to such Restricted Paymentshall occur as a consequence thereof; (ii2) immediately after giving effect the Issuer cannot incur $1.00 of additional Indebtedness pursuant to the Coverage Ratio Exception; or (3) the amount of such Restricted Payment, the Company could incur at least $1.00 of Indebtedness pursuant when added to Section 3.02(a) hereof; and (iii) immediately after giving effect to such Restricted Payment, the aggregate amount of all other Restricted Payments made after May 12, 2009 (including the Fair Market Value of any other than Restricted Payments made pursuant to clauses (2) through (7), (8) (with respect to non-cash Restricted Paymentdividends only), (10), (11) declared or made after the Issue Date does not exceed and (12) of Section 4.08(b), exceeds the sum (the “Restricted Payments Basket”) of (awithout duplication): (i) 50% of the Consolidated Net Income of the Company on a cumulative basis during for the period (taken as one accounting period) from commencing on the first (1st) day of the first full fiscal quarter commencing after May 12, 2009 to and including April 1, 1998 and ending on the last day of the Company's fiscal quarter ended immediately preceding prior to the date of such Restricted Payment calculation for which consolidated financial statements are available (or in the event or, if such Consolidated Net Income shall be a deficit, minus 100% of such aggregate deficit), plus plus (bii) 100% of the aggregate net proceeds, including cash proceeds of and the fair market value Fair Market Value of Property the equity of a Person or of assets used in or constituting a line of business, in each case which becomes or becomes owned by a Restricted Subsidiary, received by the Company Issuer from (1) any capital contribution to the Company after June 9, 1997 or any issue or issuance and sale after June 9, 1997 of Qualified Stock (Equity Interests after May 12, 2009, other than any such proceeds which are used to any Subsidiary of the Company) and (2) the issue or sale after June 9, 1997 of any Indebtedness or other securities of the Company convertible into or exercisable for Qualified Stock of the Company that have been so converted or exercised, as the case may be, plus (c) $86.0 million, which is equal to the aggregate principal amount of the Company's 6-7/8% Convertible Subordinated redeem Notes due 2002 that were converted into the Company's Common Equity prior to the Issue Date, plus (d) in the case of the disposition or repayment of any Investment constituting a Restricted Payment made after the June 9, 1997, an amount (to the extent not included in the calculation of the Consolidated Net Income referred to in (a)) equal to the lesser of (x) the return of capital with respect to such Investment (including by dividend, distribution or sale of Capital Stock) and (y) the amount of such Investment that was treated as a Restricted Payment, in either case, less the cost of the disposition or repayment of such Investment (to the extent not included in the calculation of the Consolidated Net Income referred to in (a)), plus (e) with respect to any Unrestricted Subsidiary that is redesignated as a Restricted Subsidiary after June 9, 1997 in accordance with Section 6 of the definition of Unrestricted Subsidiary (so long as Notes, provided that the designation of such Subsidiary as an Unrestricted Subsidiary was treated as a Restricted Payment made after June 9, 1997 and only Issuer delivers to the extent not included in the calculation of the Consolidated Net Income referred to in (a)), an amount equal to the lesser of (x) the proportionate interest of the Company or a Restricted Subsidiary in an amount equal to the excess of (I) the total assets of such Subsidiary, valued on an aggregate basis at the lesser of book value and Fair Market Value thereof, over (II) the total liabilities of such Subsidiary, determined in accordance with GAAP, and (y) the Designation Amount at the time of such Subsidiary's designation as an Unrestricted Subsidiary, plus (f) $50 million minus (g) the aggregate amount of all Restricted Payments (other than Restricted Payments referred to in clause (C) of the immediately succeeding paragraph) made after June 9, 1997 through the Issue Date. (b) Clauses (ii) and (iii) of paragraph (a) will not prohibit: (A) the payment of any dividend within 60 days of its declaration if such dividend could have been made on the date of its declaration without violation of the provisions of this Indenture; (B) the repurchase, redemption or retirement of any shares of Capital Stock of the Company in exchange for, or out of the net proceeds of the substantially concurrent sale (other than to a Subsidiary of the Company) of, other shares of Qualified Stock; and (C) 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 Subsidiary held by officers or employees or former officers or employees of the Company or any Subsidiary (or their estates or beneficiaries under their estates) not to exceed $20 million in the aggregate since the Issue Date; provided, however, that each Restricted Payment described in clauses (A) and (B) of this sentence shall be taken into account for purposes of computing the aggregate amount of all Restricted Payments pursuant to clause (iii) of paragraph (a). (c) For purposes of determining the aggregate and permitted amounts of Restricted Payments made, the amount of any guarantee of any Investment in any Person that was initially treated as a Restricted Payment and which was subsequently terminated or expired, net of any amounts paid by the Company or any Restricted Subsidiary in respect of such guarantee, shall be deducted. (d) In determining the "fair market value of Property" for purposes of clause (iii) of the paragraph (a), Property other than cash, Cash Equivalents and Marketable Securities shall be deemed to be equal in value to the "equity value" of the Capital Stock or other securities issued in exchange therefor. The "equity value" of such Capital Stock or other securities shall be equal to (i) the number of shares of Common Equity issued in the transaction (or issuable upon conversion or exercise of the Capital Stock or other securities issued in the transaction) multiplied by the closing sale price of the Common Equity on its principal market on the date of the transaction (less, in the case of Capital Stock or other securities which require the payment of consideration at the time of conversion or exercise, the aggregate consideration payable thereupon) or (ii) if the Common Equity is not then traded on the New York Stock Exchange, American Stock Exchange or Nasdaq National Market, or if the Capital Stock or other securities issued in the transaction do not consist of Common Equity (or Capital Stock or other securities convertible into or exercisable for Common Equity), the value of such Capital Stock or other securities as determined by a nationally recognized investment banking firm retained by the Board of Directors of the Company.Trustee:

Limitations on Restricted Payments. (a) Until the Notes are rated Investment Grade by both Rating Agencies (after which time the following covenant will no longer be in effect)No Loan Party shall, the Company will not, and will not cause or nor shall it permit any Restricted Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, make any Restricted Payment unlessPayment, except: (a) the Company or any Subsidiary thereof may declare and pay dividends in shares of its own Qualified Capital Stock; (b) any Subsidiary of the Company may pay cash dividends to the Company or any Subsidiary Loan Party or ratably to all holders of its outstanding Qualified Capital Stock; (c) the Company may make distributions to Holdings (to allow Holdings to declare and pay cash dividends to the holders of its Capital Stock and, subject to this clause (c), Holdings may declare and pay such cash dividends) (i) on the Closing Date in an amount up to the maximum amount permissible so long as Excess Availability, after giving effect to such distribution, the application of proceeds of the Revolving Loans made on the Closing Date and the payment of fees and expenses associated with the Transactions, is greater than the Threshold Amount as of the Closing Date and on a projected basis for the thirty (30) consecutive days following the Closing Date (such dividend, the “Closing Date Dividend”) and (ii) after the Closing Date, one (1) time per fiscal year (but no later than December 31 of such fiscal year), in each case, in an amount up to the maximum amount then permissible, so long as (A) the Administrative Agent shall have received the financial statements described in Section 9.6(a)(i) with respect to the preceding fiscal year together with an unqualified opinion of ▇▇▇▇▇▇▇ & Company, LLP (or other independent certified public accountants of nationally recognized standing selected by the Administrative Borrower and acceptable to the Administrative Agent), (B) Excess Availability, both immediately before and after giving effect to such distribution, is greater than the Threshold Amount as of the date of such distribution and on a projected basis for the thirty (30) consecutive days following the date of such distribution, (C) no Default or Event of Default shall have has occurred and be is continuing or would result from such distribution and (D) the Fixed Charge Coverage Ratio for the most recently ended twelve (12) consecutive fiscal month period for which financial statements have been delivered to the Administrative Agent pursuant to Section 9.6 is at the time of or immediately least 1.25 to 1.00 after giving pro forma effect to such Restricted Paymentdistribution; (iid) immediately after giving effect to such Restricted Paymentso long as the Company is a Subchapter S corporation (or a qualified subsidiary thereof or is otherwise a “disregarded entity” for federal income tax purposes), the Company could incur at least $1.00 may make quarterly distributions to Holdings, and Holdings may in turn make quarterly distributions to the owners of Indebtedness pursuant its Capital Stock (the “Holdings Owners”), for the sole purpose of allowing the Holdings Owners (i) to Section 3.02(a) hereof; and (iii) immediately after giving effect pay federal, state and local income taxes on the estimated amount of the taxable income of the Company and its Subsidiaries that is allocated to such Restricted PaymentHoldings Owners, as determined in good faith by the Company in consultation with its tax advisors and after taking into account all available credits and deductions (provided, that neither the Company nor any of its Subsidiaries shall make any distribution to Holdings for further distribution to any Holdings Owner in any amount greater than such Holding Owner’s share of such taxes arising out of the Company’s net income and actually due and payable by such Holdings Owner, and in no event, shall the aggregate amount of all Restricted Payments (including the Fair Market Value of such distributions for income taxes in any non-cash Restricted Payment) declared or made after the Issue Date does not period exceed the sum of (a) 5042% of the Consolidated Net Income Company’s net income that is allocated to such Holdings Owners for such period (provided, that such percentage may be increased upon the Administrative Agent’s receipt of reasonably satisfactory evidence of the Company on application of a cumulative basis during the period (taken as one accounting period) from and including April 1, 1998 and ending on the last day of the Company's fiscal quarter immediately preceding the date of such Restricted Payment (or in the event such Consolidated Net Income shall be a deficit, minus 100% of such deficithigher tax bracket), plus (b) 100% of the aggregate net cash proceeds of and the fair market value of Property received by the Company from (1) any capital contribution to the Company after June 9, 1997 or any issue or sale after June 9, 1997 of Qualified Stock (other than to any Subsidiary of the Company) and (2ii) to pay franchise taxes and other fees required to maintain the issue or sale after June 9existence of Holdings (together with the distributions described in clause (d)(i) above, 1997 of any Indebtedness or other securities of collectively, the Company convertible into or exercisable for Qualified Stock of the Company that have been so converted or exercised, as the case may be, plus (c) $86.0 million, which is equal to the aggregate principal amount of the Company's 6-7/8% Convertible Subordinated Notes due 2002 that were converted into the Company's Common Equity prior to the Issue Date, plus (d) in the case of the disposition or repayment of any Investment constituting a Restricted Payment made after the June 9, 1997, an amount (to the extent not included in the calculation of the Consolidated Net Income referred to in (a“Permitted Tax Distributions”)) equal to the lesser of (x) the return of capital with respect to such Investment (including by dividend, distribution or sale of Capital Stock) and (y) the amount of such Investment that was treated as a Restricted Payment, in either case, less the cost of the disposition or repayment of such Investment (to the extent not included in the calculation of the Consolidated Net Income referred to in (a)), plus ; and (e) with respect to any Unrestricted Subsidiary that is redesignated as a Restricted Subsidiary after June 9, 1997 in accordance with the definition of Unrestricted Subsidiary (so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the designation Company may redeem, retire or otherwise acquire shares of such Subsidiary as an Unrestricted Subsidiary was treated as a Restricted Payment made after June 9its Capital Stock or options or other equity or phantom equity in respect of its Capital Stock from present or former officers, 1997 and only to employees, directors or consultants (or their family members or trusts or other entities for the extent not included in the calculation benefit of any of the Consolidated Net Income referred foregoing) or make severance payments to such Persons in (a))connection with the death, an amount equal to the lesser disability or termination of (x) the proportionate interest employment or consultancy of the Company any such officer, employee, director or a Restricted Subsidiary consultant in an amount equal to the excess of (I) the total assets of such Subsidiary, valued on an aggregate basis at the lesser of book value and Fair Market Value thereof, over (II) the total liabilities of such Subsidiary, determined in accordance with GAAP, and (y) the Designation Amount at the time of such Subsidiary's designation as an Unrestricted Subsidiary, plus (f) $50 million minus (g) the aggregate amount of all Restricted Payments (other than Restricted Payments referred to in clause (C) of the immediately succeeding paragraph) made after June 9, 1997 through the Issue Date. (b) Clauses (ii) and (iii) of paragraph (a) will not prohibit: (A) the payment of any dividend within 60 days of its declaration if such dividend could have been made on the date of its declaration without violation of the provisions of this Indenture; (B) the repurchase, redemption or retirement of any shares of Capital Stock of the Company in exchange for, or out of the net proceeds of the substantially concurrent sale (other than to a Subsidiary of the Company) of, other shares of Qualified Stock; and (C) 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 Subsidiary held by officers or employees or former officers or employees of the Company or any Subsidiary (or their estates or beneficiaries under their estates) not to exceed $20 million in the aggregate since the Issue Date; provided, however, that each Restricted Payment described in clauses (A) and (B) of this sentence shall be taken into account for purposes of computing the aggregate amount of all Restricted Payments pursuant to clause (iii) of paragraph (a)1,000,000 during any fiscal year. (c) For purposes of determining the aggregate and permitted amounts of Restricted Payments made, the amount of any guarantee of any Investment in any Person that was initially treated as a Restricted Payment and which was subsequently terminated or expired, net of any amounts paid by the Company or any Restricted Subsidiary in respect of such guarantee, shall be deducted. (d) In determining the "fair market value of Property" for purposes of clause (iii) of the paragraph (a), Property other than cash, Cash Equivalents and Marketable Securities shall be deemed to be equal in value to the "equity value" of the Capital Stock or other securities issued in exchange therefor. The "equity value" of such Capital Stock or other securities shall be equal to (i) the number of shares of Common Equity issued in the transaction (or issuable upon conversion or exercise of the Capital Stock or other securities issued in the transaction) multiplied by the closing sale price of the Common Equity on its principal market on the date of the transaction (less, in the case of Capital Stock or other securities which require the payment of consideration at the time of conversion or exercise, the aggregate consideration payable thereupon) or (ii) if the Common Equity is not then traded on the New York Stock Exchange, American Stock Exchange or Nasdaq National Market, or if the Capital Stock or other securities issued in the transaction do not consist of Common Equity (or Capital Stock or other securities convertible into or exercisable for Common Equity), the value of such Capital Stock or other securities as determined by a nationally recognized investment banking firm retained by the Board of Directors of the Company.

Limitations on Restricted Payments. (a) Until the Notes are rated Investment Grade by both Rating Agencies (after which time the following covenant will no longer be in effect), the Company will The Issuer shall not, and will shall not cause or permit any Restricted Subsidiary to, directly or indirectly, make any Restricted Payment unlessif at the time of such Restricted Payment: (i1) no Default or Event of a Default shall have occurred and be continuing at the time of or immediately after giving effect to such Restricted Paymentshall occur as a consequence thereof; (ii2) immediately after giving effect the Issuer cannot incur $1.00 of additional Indebtedness pursuant to the Coverage Ratio Exception; or (3) the amount of such Restricted Payment, the Company could incur at least $1.00 of Indebtedness pursuant when added to Section 3.02(a) hereof; and (iii) immediately after giving effect to such Restricted Payment, the aggregate amount of all other Restricted Payments (including the Fair Market Value of any non-cash Restricted Payment) declared or made after the Issue Date does not exceed (other than Restricted Payments made pursuant to clauses (2), (3), (4), (5), (6), (7) or (8) of Section 4.11(b)), exceeds the sum (the “Restricted Payments Basket”) of (awithout duplication): (A) 50% of the Consolidated Net Income of the Company on a cumulative basis during for the period (taken as one accounting period) from commencing on the first day of the fiscal quarter in which the Issue Date occurs to and including April 1, 1998 and ending on the last day of the Company's fiscal quarter ended immediately preceding prior to the date of such Restricted Payment calculation for which consolidated financial statements are available (or in the event or, if such Consolidated Net Income shall be a deficit, minus 100% of such aggregate deficit), plus plus (bB) 100% of the aggregate net cash proceeds of and the fair market value of Property received by the Company from Issuer either (1x) any capital contribution as contributions to the Company common equity of the Issuer after June 9, 1997 the Issue Date or any issue or (y) from the issuance and sale after June 9, 1997 of Qualified Stock (other than to any Subsidiary of the Company) and (2) the issue or sale Equity Interests after June 9, 1997 of any Indebtedness or other securities of the Company convertible into or exercisable for Qualified Stock of the Company that have been so converted or exercised, as the case may be, plus (c) $86.0 million, which is equal to the aggregate principal amount of the Company's 6-7/8% Convertible Subordinated Notes due 2002 that were converted into the Company's Common Equity prior to the Issue Date, plus other than (dA) any such proceeds which are used to redeem Notes in accordance with paragraph 5(c) of the Notes or (B) any such proceeds or assets received from a Subsidiary of the Issuer, plus (C) the aggregate amount by which Indebtedness incurred by the Issuer or any Restricted Subsidiary subsequent to the Issue Date is reduced on the Issuer’s balance sheet upon the conversion or exchange (other than by a Subsidiary of the Issuer) into Qualified Equity Interests (less the amount of any cash, or the fair value of assets, distributed by the Issuer or any Restricted Subsidiary upon such conversion or exchange), plus (D) in the case of the disposition or repayment of or return on any Investment constituting that was treated as a Restricted Payment made after the June 9, 1997Issue Date, an amount (to the extent not included in the calculation computation of the Consolidated Net Income referred to in (a)Income) equal to the lesser of (xi) 100% of the aggregate amount received by the Issuer or any Restricted Subsidiary in cash or other property (valued at the Fair Market Value thereof) as the return of capital with respect to such Investment (including by dividend, distribution or sale of Capital Stock) and (yii) the amount of such Investment that was treated as a Restricted Payment, in either case, less the cost of the disposition or repayment of such Investment and net of taxes, plus (to the extent not included in the calculation E) upon a Redesignation of the Consolidated Net Income referred to in (a)), plus (e) with respect to any an Unrestricted Subsidiary that is redesignated as a Restricted Subsidiary after June 9Subsidiary, 1997 in accordance with the definition of Unrestricted Subsidiary (so long as the designation of such Subsidiary as an Unrestricted Subsidiary was treated as a Restricted Payment made after June 9, 1997 and only to the extent not included in the calculation of the Consolidated Net Income referred to in (a)), an amount equal to the lesser of (xi) the proportionate interest of the Company or a Restricted Subsidiary in an amount equal to the excess of (I) the total assets of such Subsidiary, valued on an aggregate basis at the lesser of book value and Fair Market Value thereof, over (II) of the total liabilities of Issuer’s proportionate interest in such Subsidiary, determined in accordance with GAAPSubsidiary immediately following such Redesignation, and (y) the Designation Amount at the time of such Subsidiary's designation as an Unrestricted Subsidiary, plus (f) $50 million minus (gii) the aggregate amount of all the Issuer’s Investments in such Subsidiary to the extent such Investments reduced the Restricted Payments (other than Restricted Payments referred to in clause (C) of the immediately succeeding paragraph) made after June 9, 1997 through the Issue DateBasket and were not previously repaid or otherwise reduced. (b) Clauses (ii) and (iii) of paragraph (a) will The foregoing provisions shall not prohibit: : (A1) the payment by the Issuer or any Restricted Subsidiary of any dividend within 60 days after the date of its declaration thereof, if such dividend could have been made on the date of its declaration without violation of the payment would have complied with the provisions of this Indenture; Indenture ; (B2) the repurchase, redemption or retirement of any shares of Capital Stock Equity Interests of the Company Issuer or any Restricted Subsidiary in exchange for, or out of the net proceeds of the substantially concurrent issuance and sale of, Qualified Equity Interests; (3) other than pursuant to a Subsidiary clause (8) below, the redemption of Equity Interests of the Company) of, other shares of Qualified Stock; and (C) 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 Subsidiary Issuer held by officers officers, directors or employees or former officers officers, directors or employees of the Company or any Subsidiary (or their transferees, estates or beneficiaries under their estates), upon their death, disability, retirement, severance or termination of employment or service; provided that the aggregate cash consideration paid for all such redemptions shall not exceed (A) $5.0 million during any calendar year (with unused amounts being available to be used in the following calendar year, but not in any succeeding calendar year) plus (B) the amount of any net cash proceeds received by or contributed to the Issuer from the issuance and sale after the Issue Date of Qualified Equity Interests of the Issuer to its officers, directors or employees that have not been applied to the payment of Restricted Payments pursuant to this clause (3), plus (C) the net cash proceeds of any “key-man” life insurance policies that have not been applied to the payment of Restricted Payments pursuant to this clause (3); (4) repurchases of Equity Interests that occur or are deemed to occur upon the exercise of stock options if the Equity Interests represents a portion of the exercise price thereof; (5) Restricted Payments pursuant to the Transactions; (6) Restricted Payments if after giving effect thereto the Issuer’s Net Leverage Ratio is not greater than 3.0 to 1.0; (7) other Restricted Payments in an amount not to exceed $20 50.0 million; provided that Restricted Payments made pursuant to this clause (7) shall not exceed $25.0 million in the aggregate since in any twelve-month period; or (8) the Issue Date; provided, however, that each Restricted Payment described purchase or retirement of Class B Common Stock of the Issuer from any Permitted Holder in clauses (A) and (B) of this sentence shall be taken into account for purposes of computing the an aggregate amount not to exceed $10.0 million in any twelve-month period; provided that no proceeds from the issuance and sale of all Restricted Payments Qualified Equity Interests used to make a payment pursuant to clause (iii) of paragraph (a). (c) For purposes of determining the aggregate and permitted amounts of Restricted Payments made, the amount of any guarantee of any Investment in any Person that was initially treated as a Restricted Payment and which was subsequently terminated or expired, net of any amounts paid by the Company or any Restricted Subsidiary in respect of such guarantee, shall be deducted. (d) In determining the "fair market value of Property" for purposes of clause (iii) of the paragraph (a), Property other than cash, Cash Equivalents and Marketable Securities shall be deemed to be equal in value to the "equity value" of the Capital Stock or other securities issued in exchange therefor. The "equity value" of such Capital Stock or other securities shall be equal to (i) the number of shares of Common Equity issued in the transaction (or issuable upon conversion or exercise of the Capital Stock or other securities issued in the transaction) multiplied by the closing sale price of the Common Equity on its principal market on the date of the transaction (less, in the case of Capital Stock or other securities which require the payment of consideration at the time of conversion or exercise, the aggregate consideration payable thereupon2) or (ii3)(B) if above shall increase the Common Equity is not then traded on the New York Stock Exchange, American Stock Exchange or Nasdaq National Market, or if the Capital Stock or other securities issued in the transaction do not consist of Common Equity (or Capital Stock or other securities convertible into or exercisable for Common Equity), the value of such Capital Stock or other securities as determined by a nationally recognized investment banking firm retained by the Board of Directors of the CompanyRestricted Payments Basket.

Limitations on Restricted Payments. (a) Until the Notes are rated Investment Grade by both Rating Agencies (after which time the following covenant will no longer be in effect)No Loan Party shall, the Company will not, and will not cause or nor shall it permit any Restricted Domestic Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, make any Restricted Payment unlessPayment, except: (a) any Loan Party or any Non-Loan Party may declare and pay dividends in shares of its own Capital Stock; (b) any Subsidiary of any Loan Party may pay dividends to such Loan Party; (c) Non-Loan Parties may make Restricted Payments to Loan Parties and to other Non-Loan Parties; (d) the Company may redeem, retire or otherwise acquire shares of its Capital Stock or options or other equity or phantom equity in respect of its Capital Stock from present or former officers, employees, directors or consultants (or their family members or trusts or other entities for the benefit of any of the foregoing) or make severance payments to such Persons in connection with the death, disability or termination of employment or consultancy of any such officer, employee, director or consultant; and (e) the Company may declare and pay cash dividends to the holders of its Capital Stock and the Company and each of its Domestic Subsidiaries may repurchase, redeem, retire or otherwise acquire for value any of its Capital Stock; provided that immediately before and after giving effect to the payment of such dividends or such repurchase, redemption, retirement or acquisition, (i) no Default or Event of Default shall have occurred and be continuing at the time of or immediately would result therefrom and (ii) either: (A) both 30-Day Excess Availability and Excess Availability (calculated on a pro forma basis after giving effect to the payment of such Restricted Payment;dividends or such repurchase, redemption, retirement or acquisition) shall not be less than $300,000,000; or (iiB) immediately (1) both 30-Day Excess Availability and Excess Availability (calculated on a pro forma basis after giving effect to the payment of such Restricted Paymentdividends or such repurchase, the Company could incur at least $1.00 of Indebtedness pursuant to Section 3.02(aredemption, retirement or acquisition) hereof; and shall not be less than twenty-five percent (iii25%) immediately after giving effect to such Restricted Payment, the aggregate amount of all Restricted Payments (including the Fair Market Value of any non-cash Restricted Payment) declared or made after the Issue Date does not exceed the sum of (a) 50% of the Consolidated Net Income of the Company on a cumulative basis during the period (taken as one accounting period) from and including April 1, 1998 and ending on the last day of the Company's fiscal quarter immediately preceding the date of such Restricted Payment (or in the event such Consolidated Net Income shall be a deficit, minus 100% of such deficit), plus (b) 100% of the aggregate net cash proceeds of and the fair market value of Property received by the Company from (1) any capital contribution to the Company after June 9, 1997 or any issue or sale after June 9, 1997 of Qualified Stock (other than to any Subsidiary of the Company) Aggregate Commitment and (2) the issue or sale after June 9, 1997 of any Indebtedness or other securities of the Company convertible into or exercisable for Qualified Stock of the Company that shall have been so converted or exercised, as the case may be, plus (c) $86.0 million, which is a Fixed Charge Coverage Ratio equal to the aggregate principal amount of the Company's 6-7/8% Convertible Subordinated Notes due 2002 that were converted into the Company's Common Equity prior or greater than 1.10 to the Issue Date, plus 1.00 (d) in the case of the disposition or repayment of any Investment constituting calculated on a Restricted Payment made pro forma basis after the June 9, 1997, an amount (giving effect to the extent not included in the calculation of the Consolidated Net Income referred to in (a)) equal to the lesser of (x) the return of capital with respect to such Investment (including by dividend, distribution or sale of Capital Stock) and (y) the amount of such Investment that was treated as a Restricted Payment, in either case, less the cost of the disposition or repayment of such Investment (to the extent not included in the calculation of the Consolidated Net Income referred to in (a)), plus (e) with respect to any Unrestricted Subsidiary that is redesignated as a Restricted Subsidiary after June 9, 1997 in accordance with the definition of Unrestricted Subsidiary (so long as the designation of such Subsidiary as an Unrestricted Subsidiary was treated as a Restricted Payment made after June 9, 1997 and only to the extent not included in the calculation of the Consolidated Net Income referred to in (a)), an amount equal to the lesser of (x) the proportionate interest of the Company or a Restricted Subsidiary in an amount equal to the excess of (I) the total assets of such Subsidiary, valued on an aggregate basis at the lesser of book value and Fair Market Value thereof, over (II) the total liabilities of such Subsidiary, determined in accordance with GAAP, and (y) the Designation Amount at the time of such Subsidiary's designation as an Unrestricted Subsidiary, plus (f) $50 million minus (g) the aggregate amount of all Restricted Payments (other than Restricted Payments referred to in clause (C) of the immediately succeeding paragraph) made after June 9, 1997 through the Issue Date. (b) Clauses (ii) and (iii) of paragraph (a) will not prohibit: (A) the payment of any dividend within 60 days of its declaration if such dividend could have been made on the date of its declaration without violation of the provisions of this Indenture; (B) the dividends or such repurchase, redemption redemption, retirement or retirement of any shares of Capital Stock of the Company in exchange for, or out of the net proceeds of the substantially concurrent sale (other than to a Subsidiary of the Company) of, other shares of Qualified Stock; and (C) 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 Subsidiary held by officers or employees or former officers or employees of the Company or any Subsidiary (or their estates or beneficiaries under their estates) not to exceed $20 million in the aggregate since the Issue Date; provided, however, that each Restricted Payment described in clauses (A) and (B) of this sentence shall be taken into account for purposes of computing the aggregate amount of all Restricted Payments pursuant to clause (iii) of paragraph (a). (c) For purposes of determining the aggregate and permitted amounts of Restricted Payments made, the amount of any guarantee of any Investment in any Person that was initially treated as a Restricted Payment and which was subsequently terminated or expired, net of any amounts paid by the Company or any Restricted Subsidiary in respect of such guarantee, shall be deducted. (d) In determining the "fair market value of Property" for purposes of clause (iii) of the paragraph (a), Property other than cash, Cash Equivalents and Marketable Securities shall be deemed to be equal in value to the "equity value" of the Capital Stock or other securities issued in exchange therefor. The "equity value" of such Capital Stock or other securities shall be equal to (i) the number of shares of Common Equity issued in the transaction (or issuable upon conversion or exercise of the Capital Stock or other securities issued in the transaction) multiplied by the closing sale price of the Common Equity on its principal market on the date of the transaction (less, in the case of Capital Stock or other securities which require the payment of consideration at the time of conversion or exercise, the aggregate consideration payable thereupon) or (ii) if the Common Equity is not then traded on the New York Stock Exchange, American Stock Exchange or Nasdaq National Market, or if the Capital Stock or other securities issued in the transaction do not consist of Common Equity (or Capital Stock or other securities convertible into or exercisable for Common Equity), the value of such Capital Stock or other securities as determined by a nationally recognized investment banking firm retained by the Board of Directors of the Company.

Limitations on Restricted Payments. (a) Until the Notes are rated Investment Grade by both Rating Agencies (after which time the following covenant will no longer be in effect), the Company The Issuer will not, and will not cause or permit any Restricted Subsidiary to, directly or indirectly, make any Restricted Payment unlessunless at the time of such Restricted Payment: (i1) no Default or Event of Default shall have occurred and be continuing at the time of or immediately after giving effect to such Restricted Payment; (ii) immediately after giving effect to such Restricted Payment, the Company could incur at least $1.00 of Indebtedness pursuant to Section 3.02(a) hereofshall occur as a consequence thereof; and (iii2) immediately after giving effect to making such Restricted Payment, Payment the aggregate amount of all Consolidated Leverage Test would be satisfied. The foregoing provisions will not prohibit: (1) the payment by the Issuer or any Restricted Payments (including the Fair Market Value Subsidiary of any non-cash Restricted Payment) declared dividend or made the consummation of any irrevocable redemption within 60 days after the Issue Date does not exceed the sum of (a) 50% of the Consolidated Net Income of the Company on a cumulative basis during the period (taken as one accounting period) from and including April 1, 1998 and ending on the last day of the Company's fiscal quarter immediately preceding the date of such declaration thereof or giving the notice of the redemption, if on the date of declaration or notice the payment would have complied with the provisions of this Indenture (assuming, in the case of redemption, the giving of the notice would have been deemed to be a Restricted Payment (or in the event at such Consolidated Net Income shall be a deficit, minus 100% of time and such deficitdeemed Restricted Payment would have been permitted at such time), plus (b) 100% of the aggregate net cash proceeds of and the fair market value of Property received by the Company from (1) any capital contribution to the Company after June 9, 1997 or any issue or sale after June 9, 1997 of Qualified Stock (other than to any Subsidiary of the Company) and ; (2) the issue or sale after June 9, 1997 redemption of any Indebtedness or other securities Equity Interests of the Company convertible into or exercisable for Qualified Stock of the Company that have been so converted or exercised, as the case may be, plus (c) $86.0 million, which is equal to the aggregate principal amount of the Company's 6-7/8% Convertible Subordinated Notes due 2002 that were converted into the Company's Common Equity prior to the Issue Date, plus (d) in the case of the disposition or repayment of any Investment constituting a Restricted Payment made after the June 9, 1997, an amount (to the extent not included in the calculation of the Consolidated Net Income referred to in (a)) equal to the lesser of (x) the return of capital with respect to such Investment (including by dividend, distribution or sale of Capital Stock) and (y) the amount of such Investment that was treated as a Restricted Payment, in either case, less the cost of the disposition or repayment of such Investment (to the extent not included in the calculation of the Consolidated Net Income referred to in (a)), plus (e) with respect to any Unrestricted Subsidiary that is redesignated as a Restricted Subsidiary after June 9, 1997 in accordance with the definition of Unrestricted Subsidiary (so long as the designation of such Subsidiary as an Unrestricted Subsidiary was treated as a Restricted Payment made after June 9, 1997 and only to the extent not included in the calculation of the Consolidated Net Income referred to in (a)), an amount equal to the lesser of (x) the proportionate interest of the Company or a Restricted Subsidiary in an amount equal to the excess of (I) the total assets of such Subsidiary, valued on an aggregate basis at the lesser of book value and Fair Market Value thereof, over (II) the total liabilities of such Subsidiary, determined in accordance with GAAP, and (y) the Designation Amount at the time of such Subsidiary's designation as an Unrestricted Subsidiary, plus (f) $50 million minus (g) the aggregate amount of all Restricted Payments (other than Restricted Payments referred to in clause (C) of the immediately succeeding paragraph) made after June 9, 1997 through the Issue Date. (b) Clauses (ii) and (iii) of paragraph (a) will not prohibit: (A) the payment of any dividend within 60 days of its declaration if such dividend could have been made on the date of its declaration without violation of the provisions of this Indenture; (B) the repurchase, redemption or retirement of any shares of Capital Stock of the Company Issuer in exchange for, or out of the proceeds of the substantially concurrent issuance and sale of, Qualified Equity Interests; (3) the purchase, repurchase, redemption, defeasance, retirement for value or other acquisition of Subordinated Indebtedness of the Issuer or any Restricted Subsidiary (a) in exchange for, or out of the proceeds of the issuance and sale of Qualified Equity Interests within the preceding six months, (b) in exchange for, or out of the proceeds of the substantially concurrent incurrence of, Refinancing Indebtedness permitted to be incurred under Section 4.05 and the other terms of this Indenture, (c) upon a Change of Control or in connection with a sale of assets to the extent required by the agreement governing such Subordinated Indebtedness but only if the Issuer shall have complied with Section 4.14 (to the extent applicable) and purchased all Notes validly tendered pursuant to the relevant offer prior to redeeming such Subordinated Indebtedness or (d) deemed to occur as a result of the conversion of all or a portion of such Subordinated Indebtedness into Equity Interests of the Issuer; (4) repurchase, redemption or other acquisition for value by the Issuer of, Equity Interests of the Issuer held by officers, directors or employees or former officers, directors or employees of the Issuer and any Restricted Subsidiary (or their transferees, estates or beneficiaries under their estates), upon their death, disability, retirement, severance or termination of employment or service; provided that the aggregate cash consideration paid for all such redemptions shall not exceed $10.0 million during any twelve consecutive months (with unused amounts in any period being carried over to succeeding periods); provided, further, that cancellation of Indebtedness owing to the Issuer or any Restricted Subsidiary from any current or former officer, director or employee (or any permitted transferees thereof) of the Issuer or any of its Restricted Subsidiaries (or any direct or indirect parent company thereof), in connection with a repurchase of Equity Interests of the Issuer from such Persons will not be deemed to constitute a Restricted Payment for purposes of this covenant or any other provisions of this Indenture; (5) repurchases of Equity Interests deemed to occur (a) upon the exercise of stock options, warrants, or similar rights if the Equity Interests represent all or a portion of the exercise price thereof or (b) in connection with the satisfaction of any withholding tax obligations incurred relating to the vesting or exercise of stock options, warrants, restricted stock units or similar rights; (6) any Restricted Payment made out of the net cash proceeds of the substantially concurrent sale of, or made by exchange for, Qualified Equity Interests of the Issuer (other than Qualified Equity Interests issued or sold to a Restricted Subsidiary of the Company) of, other shares of Qualified Stock; and (C) Issuer or an employee stock ownership plan or to a trust established by 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 Issuer or any Subsidiary held of its Restricted Subsidiaries for the benefit of their employees) or a substantially concurrent cash capital contribution received by officers or employees or former officers or employees of the Company or any Subsidiary Issuer from its stockholders; (or their estates or beneficiaries under their estates7) not to exceed $20 million in the aggregate since the Issue Date; provided, however, that each Restricted Payment described in clauses (A) and (B) of this sentence shall be taken into account for purposes of computing the aggregate amount of all Restricted Payments pursuant to and in accordance with stock option plans or other benefit plans for current or former directors, management, employees or consultants of the Issuer and its Restricted Subsidiaries; (8) payments or distributions to dissenting stockholders pursuant to applicable law, pursuant to or in connection with a consolidation, merger or transfer of all or substantially all of the assets of the Issuer and its Restricted Subsidiaries that complies with the provisions of Section 5.01; provided that, as a result of such consolidation, merger or transfer of assets, the Issuer has made or will make a Change of Control Offer pursuant to Section 4.14 (if required) and any notes tendered in connection therewith have been or will be repurchased; (9) other Restricted Payments not otherwise permitted under this Indenture in an aggregate amount from and after the Issue Date not to exceed the greater of $100.0 million or 5.0% of Total Assets, calculated as of the date on which any Restricted Payment pursuant to this clause (iii9) is made; (10) Restricted Payments made in connection with the Match Transactions; and (11) Restricted Payments to any member of paragraph the IAC Group that is a direct or indirect parent of the Issuer: (a). ) the proceeds of which will be used to pay the consolidated, combined or similar income tax liability of such parent’s income tax group that is attributable to the income of the Issuer or its Subsidiaries; provided that (cx) For purposes no such payments with respect to any taxable year shall exceed the amount of determining such income tax liability that would have been imposed on the aggregate Issuer and/or the applicable Subsidiaries had such entity(ies) filed on a stand-alone basis and permitted amounts of Restricted Payments made, (y) any such payments attributable to an Unrestricted Subsidiary shall be limited to the amount of any guarantee of any Investment in any Person that was initially treated as a Restricted Payment and which was subsequently terminated or expired, net of any amounts cash paid by such Unrestricted Subsidiary to the Company Issuer or any Restricted Subsidiary in respect of for such guarantee, shall be deducted.purpose; and (db) In determining Permitted Parent Payments; provided that in the "fair market value case of Property" for any Restricted Payment pursuant to clause (3) or (7) above, no Default shall have occurred and be continuing or occur as a consequence thereof. For purposes of clause (iii) this covenant, if a particular Restricted Payment involves a non-cash payment, including a distribution of the paragraph (a)assets, Property other than cash, Cash Equivalents and Marketable Securities then such Restricted Payment shall be deemed to be an amount equal in value to the "equity value" cash portion of such Restricted Payment, if any, plus an amount equal to the Fair Market Value of the Capital Stock or other securities issued in exchange therefor. The "equity value" non-cash portion of such Capital Stock or other securities shall be equal to (i) the number Restricted Payment. In addition, for purposes of shares of Common Equity issued in the transaction (or issuable upon conversion or exercise of the Capital Stock or other securities issued in the transaction) multiplied by the closing sale price of the Common Equity on its principal market on the date of the transaction (lessdetermining compliance with this covenant, in the case event of Capital Stock a (x) Permitted Investment or other securities which require (y) Restricted Payment that meets the payment criteria of consideration more than one of the types of Restricted Payments described above or Permitted Investments described in the definition of “Permitted Investment,” in either case, the Issuer may order and classify, and from time to time may reclassify, such Restricted Payment or Permitted Investment if that classification would have been permitted at the time such Restricted Payment or Permitted Investment was made or at the time of conversion or exercise, the aggregate consideration payable thereupon) or (ii) if the Common Equity is not then traded on the New York Stock Exchange, American Stock Exchange or Nasdaq National Market, or if the Capital Stock or other securities issued in the transaction do not consist of Common Equity (or Capital Stock or other securities convertible into or exercisable for Common Equity), the value of such Capital Stock or other securities as determined by a nationally recognized investment banking firm retained by the Board of Directors of the Companyreclassification.

Limitations on Restricted Payments. (a) Until the Notes are rated Investment Grade by both Rating Agencies (after which time the following covenant will no longer be in effect), the Company will The Parent shall not, and will shall not cause or permit any Restricted Subsidiary (including the Issuer) to, directly or indirectly, make any Restricted Payment unlessif at the time of such Restricted Payment: (i1) no Default or Event of a Default shall have occurred and be continuing at the time of or immediately after giving effect to such Restricted Paymentshall occur as a consequence thereof; (ii2) immediately after giving effect the Parent cannot incur $1.00 of additional Indebtedness pursuant to the Incurrence Leverage Ratio; or (3) the amount of such Restricted Payment, (the Company could incur at least $1.00 amount so expended, if other than in cash, to be determined in good faith by the Board of Indebtedness pursuant Directors) when added to Section 3.02(a) hereof; and (iii) immediately after giving effect to such Restricted Payment, the aggregate amount of all other Restricted Payments (including the Fair Market Value of any non-cash Restricted Payment) declared or made after the Initial Issue Date does not exceed (other than Restricted Payments made pursuant to clauses (2), (3), (4), (7) or (8) of the next paragraph), exceeds the sum (the “Restricted Payments Basket”) of (without duplication): (a) 50% of the Consolidated Net Income of the Company on a cumulative basis during Parent and its Restricted Subsidiaries (including the Issuer) for the period (taken as one accounting period) from commencing on the first day of the fiscal quarter in which the Initial Issue Date occurs to and including April 1, 1998 and ending on the last day of the Company's fiscal quarter ended immediately preceding prior to the date of such Restricted Payment calculation for which consolidated financial statements are internally available (or in the event or, if such Consolidated Net Income shall be a deficit, minus 100% of such aggregate deficit), plus plus (b) 100% of the aggregate net cash proceeds of and the fair market value of Property received by the Company Parent either (x) as contributions to the common equity of the Parent after the Initial Issue Date or (y) from the issuance and sale of Qualified Equity Interests after the Initial Issue Date, other than (1A) any capital contribution such proceeds which are used to the Company after June 9, 1997 or any issue or sale after June 9, 1997 of Qualified Stock (other than to any Subsidiary redeem Notes in accordance with Section 6(b) of the CompanyNotes or (B) and (2) the issue any such proceeds or sale after June 9assets received from a Subsidiary, 1997 of any Indebtedness or other securities of the Company convertible into or exercisable for Qualified Stock of the Company that have been so converted or exercised, as the case may be, plus plus (c) $86.0 million, the aggregate amount by which is equal Indebtedness incurred by the Parent or any Restricted Subsidiary (including the Issuer) subsequent to the aggregate principal Initial Issue Date is reduced on the Parent’s balance sheet upon the conversion or exchange into Qualified Equity Interests of the Parent (less the amount of any cash, or the Company's 6-7/8% Convertible Subordinated Notes due 2002 that were converted into fair value of assets, distributed by the Company's Common Equity prior Parent or any Restricted Subsidiary to a Person other than the Issue DateParent or a Restricted Subsidiary upon such conversion or exchange), plus plus (d) in the case of the disposition or repayment of or liquidated return on any Investment constituting that was treated as a Restricted Payment made after the June 9, 1997Initial Issue Date, an amount (to the extent not included in the calculation computation of the Consolidated Net Income referred to in (a)Income) equal to the lesser of (xi) 100% of the aggregate amount received by the Parent or any Restricted Subsidiary (including the Issuer) in cash or other property (valued at the Fair Market Value thereof) as the return of capital with respect to such Investment (including by dividend, distribution or sale of Capital Stock) and (yii) the amount of such Investment that was treated as a Restricted Payment, in either case, less the cost of the disposition or repayment of such Investment (to the extent not included in the calculation and net of the Consolidated Net Income referred to in (a))taxes, plus plus (e) with respect to any upon a Redesignation of an Unrestricted Subsidiary that is redesignated as a Restricted Subsidiary after June 9Subsidiary, 1997 in accordance with the definition of Unrestricted Subsidiary (so long as the designation of such Subsidiary as an Unrestricted Subsidiary was treated as a Restricted Payment made after June 9, 1997 and only to the extent not included in the calculation of the Consolidated Net Income referred to in (a)), an amount equal to the lesser of (xi) the proportionate interest of the Company or a Restricted Subsidiary in an amount equal to the excess of (I) the total assets of such Subsidiary, valued on an aggregate basis at the lesser of book value and Fair Market Value thereof, over (II) of the total liabilities of Parent’s proportionate interest in such Subsidiary, determined in accordance with GAAPSubsidiary immediately following such Redesignation, and (y) the Designation Amount at the time of such Subsidiary's designation as an Unrestricted Subsidiary, plus (f) $50 million minus (gii) the aggregate amount of all the Parent’s Investments in such Subsidiary to the extent such Investments prior to such Redesignation had reduced the Restricted Payments (other than Restricted Payments referred to Basket and were not previously repaid or otherwise reduced. The foregoing provisions, which shall be given independent effect in clause (C) of the immediately succeeding paragraph) made after June 9whole or in part, 1997 through the Issue Date.shall not prohibit: (b) Clauses (ii) and (iii) of paragraph (a) will not prohibit: (A1) the payment by the Parent or any Restricted Subsidiary (including the Issuer) of any dividend within 60 days after the date of its declaration thereof, if such dividend could have been made on the date of its declaration without violation of the payment would have complied with the provisions of this Indenture; ; (B2) the repurchase, redemption or retirement of any shares of Capital Stock Equity Interests of the Company Parent or any Restricted Subsidiary (including the Issuer) in exchange for, or out of the net proceeds of the substantially concurrent issuance and sale (other than of, Qualified Equity Interests or of a substantially concurrent capital contribution to a Subsidiary the Parent; provided that any proceeds from the issuance and sale of such Qualified Equity Interests shall be excluded from the calculation of the CompanyRestricted Payments Basket; (3) the redemption of Subordinated Indebtedness of the Parent or any Restricted Subsidiary (including the Issuer) (a) in exchange for, or out of the proceeds of the substantially concurrent issuance and sale of, Qualified Equity Interests, (b) in exchange for, or out of the proceeds of the substantially concurrent incurrence of, Refinancing Indebtedness permitted to be incurred under Section 4.06 and the other shares terms of this Indenture or (c) upon a Change of Control or in connection with an Asset Sale to the extent required by the agreement governing such Subordinated Indebtedness, but only if the Issuer shall have complied with Section 4.09 and Section 4.19 and purchased all Notes validly tendered pursuant to the relevant offer prior to redeeming such Subordinated Indebtedness; provided that any proceeds from the issuance and sale of such Qualified Stock; Equity Interests shall be excluded from the calculation of the Restricted Payments Basket; (4) repurchases of Equity Interests deemed to occur upon the exercise of stock options, warrants and other similar rights to acquire Equity Interests if the Equity Interests represent a portion of the exercise price thereof, or payments made pursuant to the “Buy-In” provisions of the warrants (Cor any successor warrants thereto) issued on the Initial Issuance Date; (5) the purchase, redemption or other acquisition, cancellation or retirement for value repurchase of Capital Stock, or Equity Interests of the Parent (including options, warrants, equity appreciation rights warrants or other rights to purchase acquire such Equity Interests) from employees, former employees, directors, former directors, officers, former officers, consultants or acquire Capital Stock, former consultants of the Company Parent or any Subsidiary held by officers of its Subsidiaries (or employees Heirs or former officers or employees other permitted transferees of any of the Company foregoing), pursuant to the terms of the agreements (including employment agreements) or any Subsidiary plans (or their estates or beneficiaries under their estatesamendments thereto) not to exceed $20 million in the aggregate since the Issue Date; provided, however, that each Restricted Payment described in clauses (A) and (B) of this sentence shall be taken into account for purposes of computing the aggregate amount of all Restricted Payments pursuant to clause (iii) of paragraph (a). (c) For purposes of determining the aggregate and permitted amounts of Restricted Payments made, the amount of any guarantee of any Investment in any Person that was initially treated as a Restricted Payment and which was subsequently terminated or expired, net of any amounts paid by the Company or any Restricted Subsidiary in respect of such guarantee, shall be deducted. (d) In determining the "fair market value of Property" for purposes of clause (iii) of the paragraph (a), Property other than cash, Cash Equivalents and Marketable Securities shall be deemed to be equal in value to the "equity value" of the Capital Stock or other securities issued in exchange therefor. The "equity value" of such Capital Stock or other securities shall be equal to (i) the number of shares of Common Equity issued in the transaction (or issuable upon conversion or exercise of the Capital Stock or other securities issued in the transaction) multiplied by the closing sale price of the Common Equity on its principal market on the date of the transaction (less, in the case of Capital Stock or other securities which require the payment of consideration at the time of conversion or exercise, the aggregate consideration payable thereupon) or (ii) if the Common Equity is not then traded on the New York Stock Exchange, American Stock Exchange or Nasdaq National Market, or if the Capital Stock or other securities issued in the transaction do not consist of Common Equity (or Capital Stock or other securities convertible into or exercisable for Common Equity), the value of such Capital Stock or other securities as determined by a nationally recognized investment banking firm retained approved by the Board of Directors of the CompanyParent (or such direct or indirect parent) under which such individuals purchase or sell or are granted the option to purchase or sell, such Equity Interests in an aggregate amount that shall not exceed $2.5 million in any calendar year, with unused amounts being carried forward to the next calendar year, plus the aggregate cash proceeds from any payments on insurance policies in which the Parent or any of its Subsidiaries is the beneficiary with respect to any directors, officers or employees of the Parent and its Subsidiaries which proceeds are used to purchase the Equity Interests of the Parent or any Restricted Subsidiary (including the Issuer) held by any of such directors, officers or employees; or (6) Restricted Payments in an amount such that the sum of the aggregate amount of Restricted Payments made pursuant to this clause (6) after the Initial Issue Date does not exceed $10.0 million; (7) the declaration and payment of dividends to holders of any class or series of Disqualified Stock or of any Preferred Stock of a Restricted Subsidiary (including the Issuer) Incurred in accordance with Section 4.06; and (8) transactions pursuant to, in connection with, or contemplated by the Purchase Agreement. provided that no issuance and sale of Qualified Equity Interests used to make a payment pursuant to clause (2) or (3)(a) above shall increase the Restricted Payments Basket.

Limitations on Restricted Payments. (a) Until the Notes are rated Investment Grade by both Rating Agencies (after which time the following covenant will no longer be in effect), the Company will The Issuer shall not, and will shall not cause or permit any Restricted Subsidiary to, directly or indirectly, make any Restricted Payment unlessif at the time of such Restricted Payment: (i1) no Default or Event of a Default shall have occurred and be continuing at the time of or immediately after giving effect to such Restricted Paymentshall occur as a consequence thereof; (ii2) immediately after giving effect the Issuer cannot incur $1.00 of additional Indebtedness pursuant to the Coverage Ratio Exception; or (3) the amount of such Restricted Payment, the Company could incur at least $1.00 of Indebtedness pursuant when added to Section 3.02(a) hereof; and (iii) immediately after giving effect to such Restricted Payment, the aggregate amount of all other Restricted Payments (including the Fair Market Value of any non-cash Restricted Payment) declared or made after the Issue Date does not exceed (other than Restricted Payments made pursuant to clauses (2), (3), (4), (5), (6), (7) or (8) of Section 4.11(b)), exceeds the sum (the “Restricted Payments Basket”) of (awithout duplication): (A) 50% of the Consolidated Net Income of the Company on a cumulative basis during for the period (taken as one accounting period) from commencing on the first day of the fiscal quarter in which the Issue Date occurs to and including April 1, 1998 and ending on the last day of the Company's fiscal quarter ended immediately preceding prior to the date of such Restricted Payment calculation for which consolidated financial statements are available (or in the event or, if such Consolidated Net Income shall be a deficit, minus 100% of such aggregate deficit), plus plus (bB) 100% of the aggregate net cash proceeds of and the fair market value of Property received by the Company from Issuer either (1x) any capital contribution as contributions to the Company common equity of the Issuer after June 9, 1997 the Issue Date or any issue or (y) from the issuance and sale after June 9, 1997 of Qualified Stock (other than to any Subsidiary of the Company) and (2) the issue or sale Equity Interests after June 9, 1997 of any Indebtedness or other securities of the Company convertible into or exercisable for Qualified Stock of the Company that have been so converted or exercised, as the case may be, plus (c) $86.0 million, which is equal to the aggregate principal amount of the Company's 6-7/8% Convertible Subordinated Notes due 2002 that were converted into the Company's Common Equity prior to the Issue Date, plus other than (dA) any such proceeds which are used to redeem Notes in accordance with paragraph 6(c) of the Notes or (B) any such proceeds or assets received from a Subsidiary of the Issuer, plus (C) the aggregate amount by which Indebtedness incurred by the Issuer or any Restricted Subsidiary subsequent to the Issue Date is reduced on the Issuer’s balance sheet upon the conversion or exchange (other than by a Subsidiary of the Issuer) into Qualified Equity Interests (less the amount of any cash, or the fair value of assets, distributed by the Issuer or any Restricted Subsidiary upon such conversion or exchange), plus (D) in the case of the disposition or repayment of or return on any Investment constituting that was treated as a Restricted Payment made after the June 9, 1997Issue Date, an amount (to the extent not included in the calculation computation of the Consolidated Net Income referred to in (a)Income) equal to the lesser of (xi) 100% of the aggregate amount received by the Issuer or any Restricted Subsidiary in cash or other property (valued at the Fair Market Value thereof) as the return of capital with respect to such Investment (including by dividend, distribution or sale of Capital Stock) and (yii) the amount of such Investment that was treated as a Restricted Payment, in either case, less the cost of the disposition or repayment of such Investment and net of taxes, plus (to the extent not included in the calculation E) upon a Redesignation of the Consolidated Net Income referred to in (a)), plus (e) with respect to any an Unrestricted Subsidiary that is redesignated as a Restricted Subsidiary after June 9Subsidiary, 1997 in accordance with the definition of Unrestricted Subsidiary (so long as the designation of such Subsidiary as an Unrestricted Subsidiary was treated as a Restricted Payment made after June 9, 1997 and only to the extent not included in the calculation of the Consolidated Net Income referred to in (a)), an amount equal to the lesser of (xi) the proportionate interest of the Company or a Restricted Subsidiary in an amount equal to the excess of (I) the total assets of such Subsidiary, valued on an aggregate basis at the lesser of book value and Fair Market Value thereof, over (II) of the total liabilities of Issuer’s proportionate interest in such Subsidiary, determined in accordance with GAAPSubsidiary immediately following such Redesignation, and (y) the Designation Amount at the time of such Subsidiary's designation as an Unrestricted Subsidiary, plus (f) $50 million minus (gii) the aggregate amount of all the Issuer’s Investments in such Subsidiary to the extent such Investments reduced the Restricted Payments (other than Restricted Payments referred to in clause (C) of the immediately succeeding paragraph) made after June 9, 1997 through the Issue DateBasket and were not previously repaid or otherwise reduced. (b) Clauses (ii) and (iii) of paragraph (a) will The foregoing provisions shall not prohibit: : (A1) the payment by the Issuer or any Restricted Subsidiary of any dividend within 60 days after the date of its declaration thereof, if such dividend could have been made on the date of its declaration without violation of the payment would have complied with the provisions of this Indenture; Indenture ; (B2) the repurchase, redemption or retirement of any shares of Capital Stock Equity Interests of the Company Issuer or any Restricted Subsidiary in exchange for, or out of the net proceeds of the substantially concurrent issuance and sale of, Qualified Equity Interests; (3) other than pursuant to a Subsidiary clause (8) below, the redemption of Equity Interests of the Company) of, other shares of Qualified Stock; and (C) 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 Subsidiary Issuer held by officers officers, directors or employees or former officers officers, directors or employees of the Company or any Subsidiary (or their transferees, estates or beneficiaries under their estates), upon their death, disability, retirement, severance or termination of employment or service; provided that the aggregate cash consideration paid for all such redemptions shall not exceed (A) $5.0 million during any calendar year (with unused amounts being available to be used in the following calendar year, but not in any succeeding calendar year) plus (B) the amount of any net cash proceeds received by or contributed to the Issuer from the issuance and sale after the Issue Date of Qualified Equity Interests of the Issuer to its officers, directors or employees that have not been applied to the payment of Restricted Payments pursuant to this clause (3), plus (C) the net cash proceeds of any “key-man” life insurance policies that have not been applied to the payment of Restricted Payments pursuant to this clause (3); (4) repurchases of Equity Interests that occur or are deemed to occur upon the exercise of stock options if the Equity Interests represents a portion of the exercise price thereof; (5) Restricted Payments pursuant to the Transactions; (6) Restricted Payments if after giving effect thereto the Issuer’s Net Leverage Ratio is not greater than 3.0 to 1.0; (7) other Restricted Payments in an amount not to exceed $20 50.0 million less the amount of any Restricted Payments (as defined in the Senior Notes Indenture) deemed made on or after the Reference Date and on or prior to the Issue Date pursuant to Section 4.11(b)(7) of the Senior Notes Indenture; provided that Restricted Payments made pursuant to this clause (7) shall not exceed $25.0 million in the aggregate since in any twelve-month period; or (8) the Issue Date; provided, however, that each Restricted Payment described purchase or retirement of Class B Common Stock of the Issuer from any Permitted Holder in clauses (A) and (B) of this sentence shall be taken into account for purposes of computing the an aggregate amount not to exceed $10.0 million in any twelve-month period; provided that no proceeds from the issuance and sale of all Restricted Payments Qualified Equity Interests used to make a payment pursuant to clause (iii) of paragraph (a). (c) For purposes of determining the aggregate and permitted amounts of Restricted Payments made, the amount of any guarantee of any Investment in any Person that was initially treated as a Restricted Payment and which was subsequently terminated or expired, net of any amounts paid by the Company or any Restricted Subsidiary in respect of such guarantee, shall be deducted. (d) In determining the "fair market value of Property" for purposes of clause (iii) of the paragraph (a), Property other than cash, Cash Equivalents and Marketable Securities shall be deemed to be equal in value to the "equity value" of the Capital Stock or other securities issued in exchange therefor. The "equity value" of such Capital Stock or other securities shall be equal to (i) the number of shares of Common Equity issued in the transaction (or issuable upon conversion or exercise of the Capital Stock or other securities issued in the transaction) multiplied by the closing sale price of the Common Equity on its principal market on the date of the transaction (less, in the case of Capital Stock or other securities which require the payment of consideration at the time of conversion or exercise, the aggregate consideration payable thereupon2) or (ii3)(B) if above shall increase the Common Equity is not then traded on the New York Stock Exchange, American Stock Exchange or Nasdaq National Market, or if the Capital Stock or other securities issued in the transaction do not consist of Common Equity (or Capital Stock or other securities convertible into or exercisable for Common Equity), the value of such Capital Stock or other securities as determined by a nationally recognized investment banking firm retained by the Board of Directors of the CompanyRestricted Payments Basket.

Limitations on Restricted Payments. (a) Until the Notes are rated Investment Grade by both Rating Agencies (after which time the following covenant will no longer be in effect), the Company The Issuer will not, and will not cause or permit any Restricted Subsidiary to, directly or indirectly, make any Restricted Payment unlessunless at the time of such Restricted Payment: (i1) no Default or Event of Default shall have occurred and be continuing at the time of or immediately shall occur as a consequence thereof; and (2) after giving effect to such Restricted Payment; (ii) immediately after giving effect to such Restricted Payment, incurrence and the Company could incur at least $1.00 application of Indebtedness pursuant to Section 3.02(a) hereof; and (iii) immediately after giving effect to such Restricted Payment, the aggregate amount of all Restricted Payments (including the Fair Market Value of any non-cash Restricted Payment) declared or made after the Issue Date does not exceed the sum of (a) 50% of proceeds therefrom the Consolidated Net Income of the Company on a cumulative basis during the period (taken as one accounting period) from and including April 1, 1998 and ending on the last day of the Company's fiscal quarter immediately preceding the date of such Restricted Payment (or in the event such Consolidated Net Income shall Leverage Test would be a deficit, minus 100% of such deficit), plus (b) 100% of the aggregate net cash proceeds of and the fair market value of Property received by the Company from satisfied. The foregoing provisions will not prohibit: (1) any capital contribution to the Company after June 9, 1997 payment by the Issuer or any issue or sale after June 9, 1997 of Qualified Stock (other than to any Subsidiary of the Company) and (2) the issue or sale after June 9, 1997 of any Indebtedness or other securities of the Company convertible into or exercisable for Qualified Stock of the Company that have been so converted or exercised, as the case may be, plus (c) $86.0 million, which is equal to the aggregate principal amount of the Company's 6-7/8% Convertible Subordinated Notes due 2002 that were converted into the Company's Common Equity prior to the Issue Date, plus (d) in the case of the disposition or repayment of any Investment constituting a Restricted Payment made after the June 9, 1997, an amount (to the extent not included in the calculation of the Consolidated Net Income referred to in (a)) equal to the lesser of (x) the return of capital with respect to such Investment (including by dividend, distribution or sale of Capital Stock) and (y) the amount of such Investment that was treated as a Restricted Payment, in either case, less the cost of the disposition or repayment of such Investment (to the extent not included in the calculation of the Consolidated Net Income referred to in (a)), plus (e) with respect to any Unrestricted Subsidiary that is redesignated as a Restricted Subsidiary after June 9, 1997 in accordance with the definition of Unrestricted Subsidiary (so long as the designation of such Subsidiary as an Unrestricted Subsidiary was treated as a Restricted Payment made after June 9, 1997 and only to the extent not included in the calculation of the Consolidated Net Income referred to in (a)), an amount equal to the lesser of (x) the proportionate interest of the Company or a Restricted Subsidiary in an amount equal to the excess of (I) the total assets of such Subsidiary, valued on an aggregate basis at the lesser of book value and Fair Market Value thereof, over (II) the total liabilities of such Subsidiary, determined in accordance with GAAP, and (y) the Designation Amount at the time of such Subsidiary's designation as an Unrestricted Subsidiary, plus (f) $50 million minus (g) the aggregate amount of all Restricted Payments (other than Restricted Payments referred to in clause (C) of the immediately succeeding paragraph) made after June 9, 1997 through the Issue Date. (b) Clauses (ii) and (iii) of paragraph (a) will not prohibit: (A) the payment of any dividend within 60 days after the date of its declaration thereof, if such dividend could have been made on the date of its declaration without violation of the payment would have complied with the provisions of this Indenture; ; (B2) the repurchase, redemption or retirement of any shares of Capital Stock Equity Interests of the Company Issuer or any Restricted Subsidiary in exchange for, or out of the net proceeds of the substantially concurrent issuance and sale of, Qualified Equity Interests (other than to a Subsidiary provided that any transfers of the CompanyEquity Interests of the Issuer will be subject to the provisions of the Parent Pledge Agreement); (3) the redemption of Subordinated Indebtedness of the Issuer or any Restricted Subsidiary (a) in exchange for, or out of the proceeds of the substantially concurrent issuance and sale of, other shares Qualified Equity Interests (provided that any transfers of Qualified Stock; and the Equity Interests of the Issuer will be subject to the provisions of the Parent Pledge Agreement), (Cb) the purchase, redemption or other acquisition, cancellation or retirement for value of Capital Stockin exchange for, or options, warrants, equity appreciation rights or other rights to purchase or acquire Capital Stock, out of the Company proceeds of the substantially concurrent incurrence of, Refinancing Indebtedness permitted to be incurred under Section 4.06 and the other terms of this Indenture or any Subsidiary (c) upon a Change of Control or in connection with a sale of assets to the extent required by the agreement governing such Subordinated Indebtedness but only if the Issuer shall have complied with Section 4.20 and purchased all Notes validly tendered pursuant to the relevant offer prior to redeeming such Subordinated Indebtedness; (4) (x) prior to the consummation of an initial public offering, payments to permit Parent, and which are used by Parent or (y) after the consummation of an initial public offering, payments used by the Issuer, to redeem Equity Interests of Parent or the Issuer, as the case may be, held by officers officers, directors or employees or former officers officers, directors or employees of the Company or any Subsidiary (or their transferees, estates or beneficiaries under their estates), upon their death, disability, retirement, severance or termination of employment or service; provided that the aggregate cash consideration paid for all such redemptions shall not exceed $25.0 million during any twelve consecutive months; (5) payments permitted pursuant to clause (3) of Section 4.09; (6) repurchases of Equity Interests deemed to occur upon the exercise of stock options if the Equity Interests represent a portion of the exercise price thereof; (7) [Reserved]; (8) payments by the Issuer to Parent or its subsidiaries to the extent necessary to pay principal and interest when due in respect of Indebtedness of Parent and its subsidiaries; (9) Restricted Payments pursuant to and in accordance with stock option plans or other benefit plans for directors, management, employees or consultants of the Issuer and its Subsidiaries; or (10) other Restricted Payments in an aggregate amount from and after the Issue Date not to exceed $20 million 50.0 million; provided that in the aggregate since the Issue Date; provided, however, that each case of any Restricted Payment described in clauses (A) and (B) of this sentence shall be taken into account for purposes of computing the aggregate amount of all Restricted Payments pursuant to clause (iii3), (8) or (10) of paragraph (a). (c) above, no Default shall have occurred and be continuing or occur as a consequence thereof. For purposes of determining the aggregate and permitted amounts of Restricted Payments madethis covenant, the amount of any guarantee of any Investment in any Person that was initially treated as if a particular Restricted Payment and which was subsequently terminated or expiredinvolves a non-cash payment, net including a distribution of any amounts paid by the Company or any assets, then such Restricted Subsidiary in respect of such guarantee, shall be deducted. (d) In determining the "fair market value of Property" for purposes of clause (iii) of the paragraph (a), Property other than cash, Cash Equivalents and Marketable Securities Payment shall be deemed to be an amount equal in value to the "equity value" cash portion of such Restricted Payment, if any, plus an amount equal to the Fair Market Value of the Capital Stock or other securities issued in exchange therefor. The "equity value" non-cash portion of such Capital Stock or other securities shall be equal to (i) the number of shares of Common Equity issued in the transaction (or issuable upon conversion or exercise of the Capital Stock or other securities issued in the transaction) multiplied by the closing sale price of the Common Equity on its principal market on the date of the transaction (less, in the case of Capital Stock or other securities which require the payment of consideration at the time of conversion or exercise, the aggregate consideration payable thereupon) or (ii) if the Common Equity is not then traded on the New York Stock Exchange, American Stock Exchange or Nasdaq National Market, or if the Capital Stock or other securities issued in the transaction do not consist of Common Equity (or Capital Stock or other securities convertible into or exercisable for Common Equity), the value of such Capital Stock or other securities as determined by a nationally recognized investment banking firm retained by the Board of Directors of the CompanyRestricted Payment.

Limitations on Restricted Payments. (a) Until Except for payments contemplated by the Notes are rated Investment Grade by both Rating Agencies (after which time Operative Documents to be made on the following covenant will no longer be in effect)Closing Date, the Company will not, and will ▇▇▇▇▇ City shall not cause or permit any Restricted Subsidiary to, directly or indirectly, make any Restricted Payment unlessunless each of the following conditions is satisfied: (a) the date of such payment is a Restricted Payment Date (or within five days thereafter); (b) at the time of and after giving effect to such Restricted Payment (i) no Lease Default or Lease Event of Default shall have occurred and be continuing at the time of or immediately after giving effect to such Restricted Payment; continuing, (ii) immediately after giving effect no Rent Default Event (other than an Rent Default Event due to such Restricted Payment, the Company could incur at least $1.00 a decrease in Revenue attributable to an Event of Indebtedness pursuant Force Majeure) had occurred and been continuing for a period of nine (9) months prior to Section 3.02(a) hereof; and (iii) immediately after giving effect to such Restricted Payment, the aggregate amount of all Restricted Payments (including the Fair Market Value of any non-cash Restricted Payment) declared or made after the Issue Date does not exceed the sum of (a) 50% of the Consolidated Net Income of the Company on a cumulative basis during the period (taken as one accounting period) from and including April 1, 1998 and ending on the last day of the Company's fiscal quarter immediately preceding the date of such Restricted Payment (whether or in the event not cured subsequent to such Consolidated Net Income shall be a deficit, minus 100% of nine-month period but prior to such deficit), plus (b) 100% of the aggregate net cash proceeds of and the fair market value of Property received by the Company from (1) any capital contribution to the Company after June 9, 1997 or any issue or sale after June 9, 1997 of Qualified Stock (other than to any Subsidiary of the CompanyRestricted Payment Date) and (2iii) the issue not more than two Rent Default Events have occurred on or sale after June 9, 1997 of any Indebtedness prior to such Restricted Payment Date (whether or other securities of the Company convertible into or exercisable for Qualified Stock of the Company that have been so converted or exercised, as the case may be, plus not cured prior to such Restricted Payment Date); (c) $86.0 millionthe Senior Rent Service Coverage Ratio for the most recently ended four Fiscal Quarters, which taken as one accounting period, is equal to the aggregate principal amount of the Company's 6-7/8% Convertible Subordinated Notes due 2002 that were converted into the Company's Common Equity prior or greater than 1.50 to the Issue Date, plus (d) 1.0 in the case of any such period ending on or prior to December 31, 2001 or 1.70 to 1.0 in the disposition or repayment case of any Investment constituting a Restricted Payment made after period ending thereafter, as set forth in an Officer's Certificate; (d) the June 9projected Senior Rent Service Coverage Ratio for each four Fiscal Quarter period, 1997taken as one accounting period, an amount (during the next two such four-Fiscal-Quarter periods is equal to the extent not included or greater than 1.50 to 1.0 in the calculation case of any such period ending on or prior to December 31, 2001 or 1.70 to 1.0 in the Consolidated Net Income referred to case of any period ending thereafter, as set forth in an Officer's Certificate; (a)) equal to the lesser of (xi) the return of capital with respect to such Investment (including by dividend, distribution or sale of Capital Stock) and (y) the amount of such Investment that was treated as a Restricted Payment, Debt Service Reserve Account shall be funded in either case, less the cost of the disposition or repayment of such Investment (to the extent not included in the calculation of the Consolidated Net Income referred to in (a)), plus (e) with respect to any Unrestricted Subsidiary that is redesignated as a Restricted Subsidiary after June 9, 1997 in accordance with the definition of Unrestricted Subsidiary (so long as the designation of such Subsidiary as an Unrestricted Subsidiary was treated as a Restricted Payment made after June 9, 1997 and only to the extent not included in the calculation of the Consolidated Net Income referred to in (a)), an amount equal to the lesser of (x) the proportionate interest of the Company or a Restricted Subsidiary cash in an amount equal to the excess Debt Service Reserve Amount, or (ii) the requirement to so fund such account shall be satisfied by the Debt Service Reserve Letter of Credit, which shall be in full force and effect (and the amount available for drawing thereunder shall be at least equal to the Debt Service Reserve Amount), or (iii) any combination of (Ii) and (ii) (and in either case, no reimbursement obligation (including any deferred loan with respect thereto) shall then be outstanding with respect to the Debt Service Letter of Credit); (f) the total assets amount on deposit in each of such Subsidiarythe accounts maintained by ▇▇▇▇▇ City with the Collateral Agent (including the Reserve Account and the Subordinated Reserve Account) is equal to or greater than the amount required to be on deposit therein or is supported by a letter of credit in the requisite amount, valued on an aggregate basis at the lesser of book value and Fair Market Value thereof, over (II) the total liabilities of such Subsidiary, determined in each case in accordance with GAAP, and (y) the Designation Amount at the time of such Subsidiary's designation as an Unrestricted Subsidiary, plus (f) $50 million minus Security Deposit Agreement; and (g) the aggregate amount of all Restricted Component A Payments (other than Restricted Payments referred required to in clause (C) of the immediately succeeding paragraph) made after June 9, 1997 through the Issue Date. (b) Clauses (ii) and (iii) of paragraph (a) will not prohibit: (A) the payment of any dividend within 60 days of its declaration if such dividend could have been made on or before such Restricted Payment Date have been made. The Facility Lessee shall cause the date of its declaration without violation of Power Market Consultant to provide to the provisions of this Indenture; (B) Facility Lessee and the repurchaseOwner Participant, redemption or retirement of any shares of Capital Stock of the Company in exchange for, or out of the net proceeds of the substantially concurrent sale (other than to a Subsidiary of the Company) of, other shares of Qualified Stock; and (C) 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 Subsidiary held by officers or employees or former officers or employees of the Company or any Subsidiary (or their estates or beneficiaries under their estates) at intervals not to exceed $20 million in every three years, updated electricity price projections to allow the aggregate since the Issue Date; provided, however, that each Restricted Payment described in clauses (A) and (B) of this sentence shall be taken into account Facility Lessee certification for purposes of computing the aggregate amount of all making Restricted Payments pursuant to clause (iii) of paragraph (a)this Section 6.10. (c) For purposes of determining the aggregate and permitted amounts of Restricted Payments made, the amount of any guarantee of any Investment in any Person that was initially treated as a Restricted Payment and which was subsequently terminated or expired, net of any amounts paid by the Company or any Restricted Subsidiary in respect of such guarantee, shall be deducted. (d) In determining the "fair market value of Property" for purposes of clause (iii) of the paragraph (a), Property other than cash, Cash Equivalents and Marketable Securities shall be deemed to be equal in value to the "equity value" of the Capital Stock or other securities issued in exchange therefor. The "equity value" of such Capital Stock or other securities shall be equal to (i) the number of shares of Common Equity issued in the transaction (or issuable upon conversion or exercise of the Capital Stock or other securities issued in the transaction) multiplied by the closing sale price of the Common Equity on its principal market on the date of the transaction (less, in the case of Capital Stock or other securities which require the payment of consideration at the time of conversion or exercise, the aggregate consideration payable thereupon) or (ii) if the Common Equity is not then traded on the New York Stock Exchange, American Stock Exchange or Nasdaq National Market, or if the Capital Stock or other securities issued in the transaction do not consist of Common Equity (or Capital Stock or other securities convertible into or exercisable for Common Equity), the value of such Capital Stock or other securities as determined by a nationally recognized investment banking firm retained by the Board of Directors of the Company.

Limitations on Restricted Payments. (a) Until The Company and the Notes are rated Investment Grade by both Rating Agencies (after which time the following covenant will no longer be in effect), the Company Issuer will not, and will not cause or permit any Restricted Subsidiary to, directly or indirectly, make any Restricted Payment unless: (i) no Default or Event of Default shall have occurred and be continuing at the time of or immediately after giving effect to such Restricted Payment; (ii) immediately after giving effect to such Restricted Payment, the Company could incur at least $1.00 of Indebtedness pursuant to Section 3.02(a4.06(a) hereof; and (iii) immediately after giving effect to such Restricted Payment, the aggregate amount of all Restricted Payments (including the Fair Market Value of any non-cash Restricted Payment) declared or made after the Issue Date May 4, 1999 does not exceed the sum of of: (aA) 50% of the Consolidated Net Income of the Company on a cumulative basis during the period (taken as one accounting period) from and including April February 1, 1998 1999 and ending on the last day of the Company's ’s fiscal quarter immediately preceding the date of such Restricted Payment (or in the event such Consolidated Net Income shall be a deficit, minus 100% of such deficit), plus plus (bB) 100% of the aggregate net cash proceeds of and the fair market value Fair Market Value of Property received by the Company from (1) any capital contribution to the Company after June 9February 1, 1997 1999 or any issue or sale after June 9February 1, 1997 1999 of Qualified Stock (other than to any Subsidiary of the Company) and (2) the issue or sale after June 9February 1, 1997 1999 of any Indebtedness or other securities of the Company convertible into or exercisable for Qualified Stock of the Company that have been so converted or exercised, as the case may be, plus plus (c) $86.0 million, which is equal to the aggregate principal amount of the Company's 6-7/8% Convertible Subordinated Notes due 2002 that were converted into the Company's Common Equity prior to the Issue Date, plus (dC) in the case of the disposition or repayment of any Investment constituting a Restricted Payment made after the June 9May 4, 19971999, an amount (to the extent not included in the calculation of the Consolidated Net Income referred to in (aA)) equal to the lesser of (x) the return of capital with respect to such Investment (including by dividend, distribution or sale of Capital Stock) and (y) the amount of such Investment that was treated as a Restricted Payment, in either case, less the cost of the disposition or repayment of such Investment (to the extent not included in the calculation of the Consolidated Net Income referred to in (aA)), plus plus (eD) with respect to any Unrestricted Subsidiary that is redesignated as a Restricted Subsidiary after June 9May 4, 1997 1999, in accordance with the definition of Unrestricted Subsidiary (so long as the designation of such Subsidiary as an Unrestricted Subsidiary was treated as a Restricted Payment made after June 9the Issue Date, 1997 and only to the extent not included in the calculation of the Consolidated Net Income referred to in (aA)), an amount equal to the lesser of (x) the proportionate interest of the Company or a Restricted Subsidiary in an amount equal to the excess of (I) the total assets of such Subsidiary, valued on an aggregate basis at the lesser of book value and Fair Market Value thereof, over (II) the total liabilities of such Subsidiary, determined in accordance with GAAP, and (y) the Designation Amount at the time of such Subsidiary's ’s designation as an Unrestricted Subsidiary, plus plus (fE) $50 million minus 17 million, minus (gF) the aggregate amount of all Restricted Payments (other than Restricted Payments referred to in clause (Ciii) of the immediately succeeding paragraphparagraph (b) below) made after June 9February 1, 1997 1999 through the Issue DateMay 4, 1999. (b) Clauses clauses (ii) and (iii) of paragraph (a) will not prohibit: : (Ai) the payment of any dividend within 60 days of its declaration if such dividend could have been made on the date of its declaration without violation of the provisions of this the Indenture; ; (Bii) the repurchase, redemption or retirement of any shares of Capital Stock of the Company in exchange for, or out of the net proceeds of the substantially concurrent sale (other than to a Subsidiary of the Company) of, other shares of Qualified Stock; and and (Ciii) 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 Subsidiary held by officers or employees or former officers or employees of the Company or any Subsidiary (or their estates or beneficiaries under their estates) not to exceed $20 10 million in the aggregate since the Issue DateMay 4, 1999; provided, however, that each Restricted Payment described in clauses (Ai) and (Bii) of this sentence shall be taken into account for purposes of computing the aggregate amount of all Restricted Payments pursuant to clause (iii) of paragraph (a)the immediately preceding paragraph. (c) For purposes of determining the aggregate and permitted amounts of Restricted Payments made, the amount of any guarantee of any Investment in any Person that was initially treated as a Restricted Payment and which was subsequently terminated or expired, net of any amounts paid by the Company or any Restricted Subsidiary in respect of such guarantee, shall be deducted. (d) In determining the "fair market value “Fair Market Value of Property" ” for purposes of clause (iii) of the paragraph (a), Property other than cash, Cash Equivalents and Marketable Securities shall be deemed to be equal in value to the "“equity value" ” of the Capital Stock or other securities issued in exchange therefor. The "equity value" value of such Capital Stock or other securities shall be equal to (i) the number of shares of Common Equity issued in the transaction (or issuable upon conversion or exercise of the Capital Stock or other securities issued in the transaction) multiplied by the closing sale price of the Common Equity on its principal market on the date of the transaction (less, in the case of Capital Stock or other securities which require the payment of consideration at the time of conversion or exercise, the aggregate consideration payable thereupon) or (ii) if the Common Equity is not then traded on the New York Stock Exchange, American Stock Exchange or Nasdaq National Market, or if the Capital Stock or other securities issued in the transaction do not consist of Common Equity (or Capital Stock or other securities convertible into or exercisable for Common Equity), the value (if more than $10 million) of such Capital Stock or other securities as determined by a nationally recognized investment banking firm retained by the Board of Directors of the Company.

Limitations on Restricted Payments. (a) Until the Notes are rated Investment Grade by both Rating Agencies (after which time the following covenant will no longer be in effect), the The Company will not, and will not cause or permit any Restricted Subsidiary to, directly or indirectly, make any Restricted Payment unless:if, at the time of such Restricted Payment or after giving effect thereto, (ia) no a Default or Event of Default shall have occurred and be continuing at the time of or immediately after giving effect to such Restricted Payment;would occur as a result thereof; or (iib) immediately after giving effect the Bank would fail to meet any of the applicable capital requirements under 12 C.F.R. Part 565 (or any other successor provision) which are necessary to enable the Bank to qualify as a "well capitalized" institution under such Restricted Payment, the Company could incur at least $1.00 of Indebtedness pursuant to Section 3.02(a) hereofregulations; andor (iiic) immediately after giving effect to such Restricted Payment, the aggregate amount of all Restricted Payments (including the Fair Market Value amount of any non-cash Restricted Paymentsuch payments, if other than in cash, having been determined in good faith by the Board of Directors, whose determination shall be conclusive and evidenced by a Board Resolution filed with the Trustee) declared or and made after the Issue Date does not issue date of the Notes would exceed the sum of of (ai) 5033 1/3% of the aggregate Consolidated Net Income (or, if such Consolidated Net Income is a deficit, 100% of such deficit) of the Company accrued on a cumulative basis during the period (taken as one accounting period) from and including April 1, 1998 beginning on the first day of the fiscal quarter during which the issue date of the initial series of Notes issued under this Indenture occurred and ending on the last day of the Company's last fiscal quarter immediately preceding ending prior to the date of such proposed Restricted Payment Payment, plus (or in ii) the event such Consolidated aggregate Net Income shall be Cash Proceeds received by the Company as capital contributions (other than from a deficit, minus 100% of such deficit), plus (bSubsidiary) 100% after the issue date of the Notes issued under this Indenture, plus (iii) the aggregate net cash proceeds of Net Cash Proceeds and the fair market value Fair Market Value of Property property not constituting Net Cash Proceeds received by the Company from (1) any capital contribution to the Company after June 9, 1997 issuance or any issue or sale after June 9, 1997 of Qualified Stock (other than to any Subsidiary of the Company) and (2) the issue or sale after June 9, 1997 of any Indebtedness or other securities of the Company convertible into or exercisable for Qualified Stock of the Company that have been so converted or exercised, as the case may be, plus (c) $86.0 million, which is equal to the aggregate principal amount of the Company's 6-7/8% Convertible Subordinated Notes due 2002 that were converted into the Company's Common Equity prior to the Issue Date, plus (d) in the case of the disposition or repayment of any Investment constituting a Restricted Payment made after the June 9, 1997, an amount (to the extent not included in the calculation of the Consolidated Net Income referred to in (a)) equal to the lesser of (x) the return of capital with respect to such Investment (including by dividend, distribution or sale of Capital Stock) and (y) the amount of such Investment that was treated as a Restricted Payment, in either case, less the cost of the disposition or repayment of such Investment (to the extent not included in the calculation of the Consolidated Net Income referred to in (a)), plus (e) with respect to any Unrestricted Subsidiary that is redesignated as a Restricted Subsidiary after June 9, 1997 in accordance with the definition of Unrestricted Subsidiary (so long as the designation of such Subsidiary as an Unrestricted Subsidiary was treated as a Restricted Payment made after June 9, 1997 and only to the extent not included in the calculation of the Consolidated Net Income referred to in (a)), an amount equal to the lesser of (x) the proportionate interest of the Company or a Restricted Subsidiary in an amount equal to the excess of (I) the total assets of such Subsidiary, valued on an aggregate basis at the lesser of book value and Fair Market Value thereof, over (II) the total liabilities of such Subsidiary, determined in accordance with GAAP, and (y) the Designation Amount at the time of such Subsidiary's designation as an Unrestricted Subsidiary, plus (f) $50 million minus (g) the aggregate amount of all Restricted Payments (other than Restricted Payments referred to in clause (C) of the immediately succeeding paragraph) made after June 9, 1997 through the Issue Date. (b) Clauses (ii) and (iii) of paragraph (a) will not prohibit: (A) the payment of any dividend within 60 days of its declaration if such dividend could have been made on the date of its declaration without violation of the provisions of this Indenture; (B) the repurchase, redemption or retirement of any shares of Capital Stock of the Company in exchange for, or out of the net proceeds of the substantially concurrent sale (other than to a Subsidiary Subsidiary) of Qualified Capital Stock after the issue date of the Company) ofinitial series of Notes issued under this Indenture (except, other shares of Qualified Stock; and (C) in each case, to the extent such proceeds are used to purchase, redemption redeem, defease, make sinking fund payments on or other acquisition, cancellation otherwise acquire or retirement retire for value Junior Indebtedness as set forth in clause (a) of Capital Stockthe definition of Permitted Payment herein), or options, warrants, equity appreciation rights or other rights to purchase or acquire Capital Stock, plus (iv) 100% of the amount of any Indebtedness of the Company or any a Subsidiary held by officers that is converted into or employees or former officers or employees exchanged for Qualified Capital Stock of the Company or any Subsidiary (or their estates or beneficiaries after the issue date of the Notes issued under their estates) not to exceed $20 million in the aggregate since the Issue Datethis Indenture; provided, however, that each Restricted Payment described in clauses the foregoing provisions will not prevent (Av) and the payment of a dividend within 60 days after the date of its declaration if at the date of declaration such payment was permitted by the foregoing provisions, (Bw) of this sentence shall be taken into account for purposes of computing the aggregate amount of all Restricted any Permitted Payment, (x) Tax Sharing Payments pursuant to clause (iii) of paragraph (a). (c) For purposes of determining the aggregate and permitted amounts of Restricted Payments made, the amount of any guarantee of any Investment in any Person that was initially treated as a Restricted Payment and which was subsequently terminated or expired, net of any amounts paid by the Company or pursuant to any Restricted Subsidiary Tax Sharing Agreement among the Company and its Subsidiaries which is in respect of such guaranteeaccordance with applicable OTS requirements, shall be deducted. (dy) In determining the "fair market value of Property" for purposes of clause (iii) prepayment of the paragraph (a), Property other than cash, Cash Equivalents and Marketable Securities shall be deemed to be equal in value to the "equity value" Senior Notes due 2000 outstanding as of the Capital Stock or other securities issued in exchange therefor. The "equity value" of such Capital Stock or other securities shall be equal to (i) the number of shares of Common Equity issued in the transaction (or issuable upon conversion or exercise of the Capital Stock or other securities issued in the transaction) multiplied by the closing sale price of the Common Equity on its principal market on the date of this Indenture in accordance with their terms within 30 days after issuance of the transaction (less, in the case of Capital Stock or other securities which require the payment of consideration at the time of conversion or exercise, the aggregate consideration payable thereupon) Notes or (iiz) if the Common Equity is not then traded on the New York Stock Exchange, American Stock Exchange or Nasdaq National Market, or if the Capital Stock or other securities issued in the transaction do not consist of Common Equity (or Capital Stock or other securities convertible into or exercisable for Common Equity), the value of such Capital Stock or other securities as determined by a nationally recognized investment banking firm retained by the Board of Directors redemption of the Company270 shares of Series A Preferred Stock outstanding as of the date of this Indenture in accordance with their terms within 30 days after issuance of the Notes.

Limitations on Restricted Payments. (a) Until the Notes are rated Investment Grade by both Rating Agencies (after which time the following covenant will no longer be in effect), the Company will not, and will not cause or permit any Restricted Subsidiary to, directly or indirectly, make any Restricted Payment unless: (i) no Default or Event of Default shall have occurred and be continuing at the time of or immediately after giving effect to such Restricted Payment; (ii) immediately after giving effect to such Restricted Payment, the Company could incur at least $1.00 of Indebtedness pursuant to Section 3.02(a) hereof; and (iii) immediately after giving effect to such Restricted Payment, the aggregate amount of all Restricted Payments (including the Fair Market Value of any non-cash Restricted Payment) declared or made after the Issue Date does not exceed the sum of (a) 50% of the Consolidated Net Income of the Company on a cumulative basis during the period (taken as one accounting period) from and including April 1, 1998 and ending on the last day of the Company's ’s fiscal quarter immediately preceding the date of such Restricted Payment (or in the event such Consolidated Net Income shall be a deficit, minus 100% of such deficit), plus (b) 100% of the aggregate net cash proceeds pro- ceeds of and the fair market value of Property received by the Company from (1) any capital contribution to the Company after June 9, 1997 or any issue or sale after June 9, 1997 of Qualified Stock (other than to any Subsidiary of the Company) and (2) the issue or sale after June 9, 1997 of any Indebtedness or other securities of the Company convertible into or exercisable for Qualified Stock of the Company that have been so converted or exercised, as the case may be, plus (c) $86.0 million, which is equal to the aggregate principal amount of the Company's ’s 6-7/8% Convertible Subordinated Notes due 2002 that were converted into the Company's ’s Common Equity prior to the Issue Date, plus (d) in the case of the disposition or repayment of any Investment constituting a Restricted Payment made after the June 9, 1997, an amount (to the extent not included in the calculation of the Consolidated Net Income referred to in (a)) equal to the lesser of (x) the return of capital with respect to such Investment (including by dividend, distribution or sale of Capital Stock) and (y) the amount of such Investment that was treated as a Restricted Payment, in either case, less the cost of the disposition or repayment of such Investment (to the extent not included in the calculation of the Consolidated Net Income referred to in (a)), plus (e) with respect to any Unrestricted Subsidiary that is redesignated as a Restricted Subsidiary after June 9, 1997 in accordance with the definition of Unrestricted Subsidiary (so long as the designation of such Subsidiary as an Unrestricted Subsidiary was treated as a Restricted Payment made after June 9, 1997 and only to the extent not included in the calculation of the Consolidated Net Income referred to in (a)), an amount equal to the lesser of (x) the proportionate interest of the Company or a Restricted Subsidiary in an amount equal to the excess of (I) the total assets of such Subsidiary, valued on an aggregate basis at the lesser of book value and Fair Market Value thereof, over (II) the total liabilities of such Subsidiary, determined in accordance with GAAP, and (y) the Designation Amount at the time of such Subsidiary's ’s designation as an Unrestricted Subsidiary, plus (f) $50 million minus (g) the aggregate amount of all Restricted Payments (other than Restricted Payments referred to in clause (C) of the immediately succeeding paragraph) made after June 9, 1997 through the Issue Date. (b) Clauses (ii) and (iii) of paragraph (a) will not prohibit: (A) the payment of any dividend within 60 days of its declaration if such dividend could have been made on the date of its declaration without violation of the provisions of this Indenture; (B) the repurchase, redemption or retirement of any shares of Capital Stock of the Company in exchange for, or out of the net proceeds of the substantially concurrent sale (other than to a Subsidiary of the Company) of, other shares of Qualified Stock; and (C) 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 Subsidiary held by officers or employees or former officers or employees of the Company or any Subsidiary (or their estates or beneficiaries under their estates) not to exceed $20 million in the aggregate since the Issue Date; provided, however, that each Restricted Payment described in clauses (A) and (B) of this sentence shall be taken into account for purposes pur- poses of computing the aggregate amount of all Restricted Payments pursuant to clause (iii) of paragraph (a). (c) For purposes of determining the aggregate and permitted amounts of Restricted Payments made, the amount of any guarantee of any Investment in any Person that was initially treated as a Restricted Payment and which was subsequently terminated or expired, net of any amounts paid by the Company or any Restricted Subsidiary in respect of such guarantee, shall be deducted. (d) In determining the "“fair market value of Property" ” for purposes of clause (iii) of the paragraph (a), Property other than cash, Cash Equivalents and Marketable Securities shall be deemed to be equal in value to the "“equity value" ” of the Capital Stock or other securities issued in exchange therefor. The "“equity value" ” of such Capital Stock or other securities shall be equal to (i) the number of shares of Common Equity issued in the transaction (or issuable upon conversion or exercise of the Capital Stock or other securities issued in the transaction) multiplied by the closing sale price of the Common Equity on its principal market on the date of the transaction (less, in the case of Capital Stock or other securities which require the payment of consideration at the time of conversion or exercise, the aggregate consideration payable thereupon) or (ii) if the Common Equity is not then traded on the New York Stock Exchange, American Stock Exchange or Nasdaq National Market, or if the Capital Stock or other securities issued in the transaction do not consist of Common Equity (or Capital Stock or other securities convertible into or exercisable for Common Equity), the value of such Capital Stock or other securities as determined by a nationally recognized investment banking firm retained by the Board of Directors of the Company.

Limitations on Restricted Payments. (a) Until the Notes are rated Investment Grade by both Rating Agencies (after which time the following covenant will no longer be in effect), the The Company will shall not, and will shall not cause or permit any of its Restricted Subsidiary Subsidiaries to, make any Restricted Payment, directly or indirectly, make any after the date hereof if at the time of such Restricted Payment unlessPayment: (i) the amount of such proposed Restricted Payment (the amount of such Restricted Payment, if other than in cash, will be determined in good faith by a majority of the disinterested members of the Board of Directors of the Company), when added to the aggregate amount of all Restricted Payments, or payments that would have been Restricted Payments if the Supplemental Indenture had been in effect at the time of such payments, declared or made after April 17, 2002, exceeds the sum of: (1) $100 million, plus (2) 50% of the Company’s Consolidated Net Income accrued during the period (taken as a single period) commencing April 1, 2002 and ending on the last day of the fiscal quarter immediately preceding the fiscal quarter in which the Restricted Payment is to occur (or, if such aggregate Consolidated Net Income is a deficit, minus 100% of such aggregate deficit), plus (3) the Net Proceeds derived from the issuance and sale of Capital Stock of the Company and its Restricted Subsidiaries that is not Disqualified Stock (other than a sale to a Subsidiary of the Company) after April 17, 2002, plus (4) 100% of the principal amount of, or, if issued at a discount, the accreted value of, any Indebtedness of the Company or a Restricted Subsidiary which is issued (other than to a Subsidiary of the Company) after April 17, 2002 that is converted into or exchanged for Capital Stock of the Company that is not Disqualified Stock, plus (5) 100% of the aggregate amounts received by the Company or any Restricted Subsidiary from the sale, disposition or liquidation (including by way of dividends) of any Investment (other than to any Subsidiary of the Company and other than to the extent sold, disposed of or liquidated with recourse to the Company or any of its Subsidiaries or to any of their respective properties or assets) but only to the extent (x) not included in clause (2) above and (y) that the making of such Investment constituted a permitted Restricted Investment (assuming for such purpose that the Supplemental Indenture had been in effect since April 17, 2002), plus (6) 100% of the principal amount of, or if issued at a discount, the accreted value of, any Indebtedness or other obligation that is the subject of a guarantee by the Company which is released (other than due to a payment on such guarantee) after April 17, 2002, but only to the extent that such guarantee constituted a permitted Restricted Payment (assuming for such purpose that the Supplemental Indenture had been in effect since April 17, 2002); or (ii) the Company would be unable to incur $1.00 of additional Indebtedness under the Consolidated Fixed Charge Coverage Ratio contained in Section 3.03 hereof; or (iii) a Default or Event of Default has occurred and is continuing or occurs as a consequence thereof. (b) Notwithstanding the foregoing, the provisions of this Section 3.02 shall not prevent: (i) the payment of any dividend within 60 days after the date of declaration thereof if the payment thereof would have complied with the limitations of the Indenture on the date of declaration, provided that (x) such dividend shall be deemed to have been paid as of its date of declaration for the purposes of this Section 3.02 and (y) at the time of payment of such dividend no other Default or Event of Default shall have occurred and be continuing at the time of or immediately after giving effect to such Restricted Paymentwould result therefrom; (ii) immediately after giving effect to such Restricted Payment, the Company could incur at least $1.00 retirement of Indebtedness pursuant to Section 3.02(a) hereof; and (iii) immediately after giving effect to such Restricted Payment, the aggregate amount of all Restricted Payments (including the Fair Market Value of any non-cash Restricted Payment) declared or made after the Issue Date does not exceed the sum of (a) 50% of the Consolidated Net Income of the Company on a cumulative basis during the period (taken as one accounting period) from and including April 1, 1998 and ending on the last day shares of the Company's fiscal quarter immediately preceding ’s Capital Stock or the date of such Company’s or a Restricted Payment (or in the event such Consolidated Net Income shall be a deficit, minus 100% of such deficit), plus (b) 100% of the aggregate net cash proceeds of and the fair market value of Property received by the Company from (1) any capital contribution to the Company after June 9, 1997 or any issue or sale after June 9, 1997 of Qualified Stock (other than to any Subsidiary of the Company) and (2) the issue or sale after June 9, 1997 of any ’s Indebtedness or other securities of the Company convertible into or exercisable for Qualified Stock of the Company that have been so converted or exercised, as the case may be, plus (c) $86.0 million, which is equal to the aggregate principal amount of the Company's 6-7/8% Convertible Subordinated Notes due 2002 that were converted into the Company's Common Equity prior to the Issue Date, plus (d) in the case of the disposition or repayment of any Investment constituting a Restricted Payment made after the June 9, 1997, an amount (to the extent not included in the calculation of the Consolidated Net Income referred to in (a)) equal to the lesser of (x) the return of capital with respect to such Investment (including by dividend, distribution or sale of Capital Stock) and (y) the amount of such Investment that was treated as a Restricted Payment, in either case, less the cost of the disposition or repayment of such Investment (to the extent not included in the calculation of the Consolidated Net Income referred to in (a)), plus (e) with respect to any Unrestricted Subsidiary that is redesignated as a Restricted Subsidiary after June 9, 1997 in accordance with the definition of Unrestricted Subsidiary (so long as the designation of such Subsidiary as an Unrestricted Subsidiary was treated as a Restricted Payment made after June 9, 1997 and only to the extent not included in the calculation of the Consolidated Net Income referred to in (a)), an amount equal to the lesser of (x) the proportionate interest of the Company or a Restricted Subsidiary in an amount equal to the excess of (I) the total assets of such Subsidiary, valued on an aggregate basis at the lesser of book value and Fair Market Value thereof, over (II) the total liabilities of such Subsidiary, determined in accordance with GAAP, and (y) the Designation Amount at the time of such Subsidiary's designation as an Unrestricted Subsidiary, plus (f) $50 million minus (g) the aggregate amount of all Restricted Payments (other than Restricted Payments referred to in clause (C) of the immediately succeeding paragraph) made after June 9, 1997 through the Issue Date. (b) Clauses (ii) and (iii) of paragraph (a) will not prohibit: (A) the payment of any dividend within 60 days of its declaration if such dividend could have been made on the date of its declaration without violation of the provisions of this Indenture; (B) the repurchase, redemption or retirement of any shares of Capital Stock of the Company in exchange for, or out of the net proceeds of the a substantially concurrent sale (other than a sale to a Subsidiary of the Company) of, other shares of Qualified its Capital Stock (other than Disqualified Stock; and ), provided that the proceeds of any such sale shall be excluded in any computation made under clause (C3) above; (iii) the purchaseredemption, redemption or other acquisitionrepurchase, cancellation defeasance or retirement for value of Capital StockIndebtedness, including premium, if any, with the proceeds of Refinancing Indebtedness; (iv) payments or optionsdistributions pursuant to or in connection with a merger, warrantsconsolidation or transfer of assets that complies with the provisions hereof applicable to mergers, equity appreciation rights consolidations and transfers of all or substantially all of the property and assets of the Company or any Guarantor; or (v) any purchase, redemption, retirement or other rights to purchase or acquire acquisition for value of Capital Stock, Stock of the Company or any Subsidiary held by officers or employees or former officers or employees of the Company or any Subsidiary (or their estates or beneficiaries under their estates) not to exceed $20 500,000 in any calendar year and $5 million in the aggregate since the Issue Date; providedApril 17, however, that each Restricted Payment described in clauses (A) and (B) of this sentence shall be taken into account for purposes of computing the aggregate amount of all Restricted Payments pursuant to clause (iii) of paragraph (a)2002. (c) For purposes of determining the aggregate and permitted amounts of Restricted Payments made, the amount of any guarantee of any Investment in any Person that was initially treated as a Restricted Payment and which was subsequently terminated or expired, net of any amounts paid by the Company or any Restricted Subsidiary in respect of such guarantee, shall be deducted. (d) In determining the "fair market value of Property" for purposes of clause (iii) of the paragraph (a), Property other than cash, Cash Equivalents and Marketable Securities shall be deemed to be equal in value to the "equity value" of the Capital Stock or other securities issued in exchange therefor. The "equity value" of such Capital Stock or other securities shall be equal to (i) the number of shares of Common Equity issued in the transaction (or issuable upon conversion or exercise of the Capital Stock or other securities issued in the transaction) multiplied by the closing sale price of the Common Equity on its principal market on the date of the transaction (less, in the case of Capital Stock or other securities which require the payment of consideration at the time of conversion or exercise, the aggregate consideration payable thereupon) or (ii) if the Common Equity is not then traded on the New York Stock Exchange, American Stock Exchange or Nasdaq National Market, or if the Capital Stock or other securities issued in the transaction do not consist of Common Equity (or Capital Stock or other securities convertible into or exercisable for Common Equity), the value of such Capital Stock or other securities as determined by a nationally recognized investment banking firm retained by the Board of Directors of the Company.

Limitations on Restricted Payments. (a) Until the Notes are rated Investment Grade by both Rating Agencies (after which time the following covenant will no longer be in effect), the Company The Issuer will not, and will not cause or permit any Restricted Subsidiary to, directly or indirectly, make any Restricted Payment unlessunless at the time of such Restricted Payment: (i1) no Default or Event of Default shall have occurred and be continuing at the time of or immediately shall occur as a consequence thereof; and (2) after giving effect to such Restricted Payment; (ii) immediately after giving effect to such Restricted Payment, incurrence and the Company could incur at least $1.00 application of Indebtedness pursuant to Section 3.02(a) hereof; and (iii) immediately after giving effect to such Restricted Payment, the aggregate amount of all Restricted Payments (including the Fair Market Value of any non-cash Restricted Payment) declared or made after the Issue Date does not exceed the sum of (a) 50% of proceeds therefrom the Consolidated Net Income of the Company on a cumulative basis during the period (taken as one accounting period) from and including April 1, 1998 and ending on the last day of the Company's fiscal quarter immediately preceding the date of such Restricted Payment (or in the event such Consolidated Net Income shall Leverage Test would be a deficit, minus 100% of such deficit), plus (b) 100% of the aggregate net cash proceeds of and the fair market value of Property received by the Company from satisfied. The foregoing provisions will not prohibit: (1) any capital contribution to the Company after June 9, 1997 payment by the Issuer or any issue or sale after June 9, 1997 of Qualified Stock (other than to any Subsidiary of the Company) and (2) the issue or sale after June 9, 1997 of any Indebtedness or other securities of the Company convertible into or exercisable for Qualified Stock of the Company that have been so converted or exercised, as the case may be, plus (c) $86.0 million, which is equal to the aggregate principal amount of the Company's 6-7/8% Convertible Subordinated Notes due 2002 that were converted into the Company's Common Equity prior to the Issue Date, plus (d) in the case of the disposition or repayment of any Investment constituting a Restricted Payment made after the June 9, 1997, an amount (to the extent not included in the calculation of the Consolidated Net Income referred to in (a)) equal to the lesser of (x) the return of capital with respect to such Investment (including by dividend, distribution or sale of Capital Stock) and (y) the amount of such Investment that was treated as a Restricted Payment, in either case, less the cost of the disposition or repayment of such Investment (to the extent not included in the calculation of the Consolidated Net Income referred to in (a)), plus (e) with respect to any Unrestricted Subsidiary that is redesignated as a Restricted Subsidiary after June 9, 1997 in accordance with the definition of Unrestricted Subsidiary (so long as the designation of such Subsidiary as an Unrestricted Subsidiary was treated as a Restricted Payment made after June 9, 1997 and only to the extent not included in the calculation of the Consolidated Net Income referred to in (a)), an amount equal to the lesser of (x) the proportionate interest of the Company or a Restricted Subsidiary in an amount equal to the excess of (I) the total assets of such Subsidiary, valued on an aggregate basis at the lesser of book value and Fair Market Value thereof, over (II) the total liabilities of such Subsidiary, determined in accordance with GAAP, and (y) the Designation Amount at the time of such Subsidiary's designation as an Unrestricted Subsidiary, plus (f) $50 million minus (g) the aggregate amount of all Restricted Payments (other than Restricted Payments referred to in clause (C) of the immediately succeeding paragraph) made after June 9, 1997 through the Issue Date. (b) Clauses (ii) and (iii) of paragraph (a) will not prohibit: (A) the payment of any dividend within 60 days after the date of its declaration thereof, if such dividend could have been made on the date of its declaration without violation of the payment would have complied with the provisions of this Indenture; ; (B2) the repurchase, redemption or retirement of any shares of Capital Stock Equity Interests of the Company Issuer or any Restricted Subsidiary in exchange for, or out of the net proceeds of the substantially concurrent issuance and sale of, Qualified Equity Interests (other than to a Subsidiary provided that any transfers of the CompanyEquity Interests of the Issuer will be subject to the provisions of the Parent Pledge Agreement); (3) the redemption of Subordinated Indebtedness of the Issuer or any Restricted Subsidiary (a) in exchange for, or out of the proceeds of the substantially concurrent issuance and sale of, other shares Qualified Equity Interests (provided that any transfers of Qualified Stock; and the Equity Interests of the Issuer will be subject to the provisions of the Parent Pledge Agreement), (Cb) the purchase, redemption or other acquisition, cancellation or retirement for value of Capital Stockin exchange for, or options, warrants, equity appreciation rights or other rights to purchase or acquire Capital Stock, out of the Company proceeds of the substantially concurrent incurrence of, Refinancing Indebtedness permitted to be incurred under Section 4.06 and the other terms of this Indenture or any Subsidiary (c) upon a Change of Control or in connection with a sale of assets to the extent required by the agreement governing such Subordinated Indebtedness but only if the Issuer shall have complied with Section 4.20 and purchased all Notes validly tendered pursuant to the relevant offer prior to redeeming such Subordinated Indebtedness; (4) (x) prior to the consummation of an initial public offering, payments to permit Parent, and which are used by Parent or (y) after the consummation of an initial public offering, payments used by the Issuer, to redeem Equity Interests of Parent or the Issuer, as the case may be, held by officers officers, directors or employees or former officers officers, directors or employees of the Company or any Subsidiary (or their transferees, estates or beneficiaries under their estates), upon their death, disability, retirement, severance or termination of employment or service; provided that the aggregate cash consideration paid for all such redemptions shall not exceed $25.0 million during any twelve consecutive months; (5) payments permitted pursuant to clause (3) of Section 4.09; (6) repurchases of Equity Interests deemed to occur upon the exercise of stock options if the Equity Interests represent a portion of the exercise price thereof; (7) [Reserved]; (8) payments by the Issuer to Parent or its subsidiaries to the extent necessary to pay principal and interest when due in respect of Indebtedness of Parent and its subsidiaries; (9) Restricted Payments pursuant to and in accordance with stock option plans or other benefit plans for directors, management, employees or consultants of the Issuer and its Subsidiaries; or (10) other Restricted Payments in an aggregate amount from and after the Issue Date not to exceed $20 million 50.0 million; provided that in the aggregate since the Issue Date; provided, however, that each case of any Restricted Payment described in clauses (A) and (B) of this sentence shall be taken into account for purposes of computing the aggregate amount of all Restricted Payments pursuant to clause (iii3), (8) or (10) of paragraph (a). (c) above, no Default shall have occurred and be continuing or occur as a consequence thereof. For purposes of determining compliance with this Section 4.07, (i) in the aggregate and permitted amounts of Restricted Payments made, the amount of any guarantee of any Investment in any Person event that was initially treated as a proposed Restricted Payment and which was subsequently terminated or expired, net Permitted Investment (or a portion thereof) meets one or more of any amounts paid by the Company clauses or any Restricted Subsidiary in respect subclauses of such guarantee, shall be deducted. (d1) In determining the "fair market value of Property" for purposes of clause through (iii10) of the second paragraph of this Section 4.07, one or more of the clauses or subclauses of the definition of “Permitted Investment” or is entitled to be made pursuant to the first paragraph of this Section 4.07, the Issuer or any of its Restricted Subsidiaries may allocate all or any portion of such Restricted Payment among one or more of the clauses or subclauses of (a)1) through (10) of the second paragraph of this Section 4.07, Property other than cashone or more of the clauses or subclauses in the definition of “Permitted Investment” or the first paragraph of this Section 4.07 and (ii) any Restricted Payment or Permitted Investment (or a portion thereof) originally made pursuant to one or more of the clauses or subclauses (1) through (10) of the second paragraph of this Section 4.07, Cash Equivalents and Marketable Securities one or more of the clauses or subclauses of the definition of “Permitted Investment” or pursuant to the first paragraph of this Section 4.07 may later be reclassified by the Issuer or any of its Restricted Subsidiaries such that it will be deemed as having been made pursuant to the first paragraph of this Section 4.07, one or more of the clauses or subclauses of the definition of “Permitted Investment” or one or more of the clauses or subclauses of (1) through (10) of the second paragraph of this Section 4.07, as applicable, to the extent that such reclassified Restricted Payment or Permitted Investment could be made pursuant to such paragraph or clause or subclause at the time of such reclassification. For purposes of this Section 4.07, if a particular Restricted Payment involves a non-cash payment, including a distribution of assets, then such Restricted Payment shall be deemed to be an amount equal in value to the "equity value" cash portion of such Restricted Payment, if any, plus an amount equal to the Fair Market Value of the Capital Stock or other securities issued in exchange therefor. The "equity value" non-cash portion of such Capital Stock or other securities shall be equal to (i) the number of shares of Common Equity issued in the transaction (or issuable upon conversion or exercise of the Capital Stock or other securities issued in the transaction) multiplied by the closing sale price of the Common Equity on its principal market on the date of the transaction (less, in the case of Capital Stock or other securities which require the payment of consideration at the time of conversion or exercise, the aggregate consideration payable thereupon) or (ii) if the Common Equity is not then traded on the New York Stock Exchange, American Stock Exchange or Nasdaq National Market, or if the Capital Stock or other securities issued in the transaction do not consist of Common Equity (or Capital Stock or other securities convertible into or exercisable for Common Equity), the value of such Capital Stock or other securities as determined by a nationally recognized investment banking firm retained by the Board of Directors of the CompanyRestricted Payment.

Limitations on Restricted Payments. (a) Until the Notes are rated Investment Grade by both Rating Agencies (after which time the following covenant will no longer be in effect), the Company The Issuer will not, and will not cause or permit any Restricted Subsidiary to, directly or indirectly, make any Restricted Payment unlessunless at the time of such Restricted Payment: (i1) no Default or Event of Default shall have occurred and be continuing at the time of or immediately shall occur as a consequence thereof; and (2) after giving effect to such Restricted Payment; (ii) immediately after giving effect to such Restricted Payment, incurrence and the Company could incur at least $1.00 application of Indebtedness pursuant to Section 3.02(a) hereof; and (iii) immediately after giving effect to such Restricted Payment, the aggregate amount of all Restricted Payments (including the Fair Market Value of any non-cash Restricted Payment) declared or made after the Issue Date does not exceed the sum of (a) 50% of proceeds therefrom the Consolidated Net Income of the Company on a cumulative basis during the period (taken as one accounting period) from and including April 1, 1998 and ending on the last day of the Company's fiscal quarter immediately preceding the date of such Restricted Payment (or in the event such Consolidated Net Income shall Leverage Test would be a deficit, minus 100% of such deficit), plus (b) 100% of the aggregate net cash proceeds of and the fair market value of Property received by the Company from satisfied. The foregoing provisions will not prohibit: (1) any capital contribution to the Company after June 9, 1997 payment by the Issuer or any issue or sale after June 9, 1997 of Qualified Stock (other than to any Subsidiary of the Company) and (2) the issue or sale after June 9, 1997 of any Indebtedness or other securities of the Company convertible into or exercisable for Qualified Stock of the Company that have been so converted or exercised, as the case may be, plus (c) $86.0 million, which is equal to the aggregate principal amount of the Company's 6-7/8% Convertible Subordinated Notes due 2002 that were converted into the Company's Common Equity prior to the Issue Date, plus (d) in the case of the disposition or repayment of any Investment constituting a Restricted Payment made after the June 9, 1997, an amount (to the extent not included in the calculation of the Consolidated Net Income referred to in (a)) equal to the lesser of (x) the return of capital with respect to such Investment (including by dividend, distribution or sale of Capital Stock) and (y) the amount of such Investment that was treated as a Restricted Payment, in either case, less the cost of the disposition or repayment of such Investment (to the extent not included in the calculation of the Consolidated Net Income referred to in (a)), plus (e) with respect to any Unrestricted Subsidiary that is redesignated as a Restricted Subsidiary after June 9, 1997 in accordance with the definition of Unrestricted Subsidiary (so long as the designation of such Subsidiary as an Unrestricted Subsidiary was treated as a Restricted Payment made after June 9, 1997 and only to the extent not included in the calculation of the Consolidated Net Income referred to in (a)), an amount equal to the lesser of (x) the proportionate interest of the Company or a Restricted Subsidiary in an amount equal to the excess of (I) the total assets of such Subsidiary, valued on an aggregate basis at the lesser of book value and Fair Market Value thereof, over (II) the total liabilities of such Subsidiary, determined in accordance with GAAP, and (y) the Designation Amount at the time of such Subsidiary's designation as an Unrestricted Subsidiary, plus (f) $50 million minus (g) the aggregate amount of all Restricted Payments (other than Restricted Payments referred to in clause (C) of the immediately succeeding paragraph) made after June 9, 1997 through the Issue Date. (b) Clauses (ii) and (iii) of paragraph (a) will not prohibit: (A) the payment of any dividend within 60 days after the date of its declaration thereof, if such dividend could have been made on the date of its declaration without violation of the payment would have complied with the provisions of this Indenture; ; (B2) the repurchase, redemption or retirement of any shares of Capital Stock Equity Interests of the Company Issuer or any Restricted Subsidiary in exchange for, or out of the net proceeds of the substantially concurrent issuance and sale of, Qualified Equity Interests (other than to a Subsidiary provided that any transfers of the CompanyEquity Interests of the Issuer will be subject to the provisions of the Parent Pledge Agreement); (3) the redemption of Subordinated Indebtedness of the Issuer or any Restricted Subsidiary (a) in exchange for, or out of the proceeds of the substantially concurrent issuance and sale of, other shares Qualified Equity Interests (provided that any transfers of Qualified Stock; and the Equity Interests of the Issuer will be subject to the provisions of the Parent Pledge Agreement), (Cb) the purchase, redemption or other acquisition, cancellation or retirement for value of Capital Stockin exchange for, or options, warrants, equity appreciation rights or other rights to purchase or acquire Capital Stock, out of the Company proceeds of the substantially concurrent incurrence of, Refinancing Indebtedness permitted to be incurred under Section 4.06 and the other terms of this Indenture or any Subsidiary (c) upon a Change of Control or in connection with a sale of assets to the extent required by the agreement governing such Subordinated Indebtedness but only if the Issuer shall have complied with Section 4.20 and purchased all Notes validly tendered pursuant to the relevant offer prior to redeeming such Subordinated Indebtedness; (4) (x) prior to the consummation of an initial public offering, payments to Parent to permit Parent, and which are used by Parent or (y) after the consummation of an initial public offering, payments by the Issuer, to redeem Equity Interests of Parent or the Issuer, as the case may be, held by officers officers, directors or employees or former officers officers, directors or employees of the Company or any Subsidiary (or their transferees, estates or beneficiaries under their estates), upon their death, disability, retirement, severance or termination of employment or service; provided that the aggregate cash consideration paid for all such redemptions shall not exceed $25.0 million during any twelve consecutive months; (5) payments permitted pursuant to clause (3) of Section 4.09; (6) repurchases of Equity Interests deemed to occur upon the exercise of stock options if the Equity Interests represent a portion of the exercise price thereof; (7) [Reserved]; (8) payments by the Issuer to Parent or its subsidiaries to the extent necessary to pay principal and interest when due in respect of Indebtedness of Parent and its subsidiaries; (9) Restricted Payments pursuant to and in accordance with stock option plans or other benefit plans for directors, management, employees or consultants of the Issuer and its Subsidiaries; or (10) other Restricted Payments in an aggregate amount from and after the Issue Date not to exceed $20 million 50.0 million; provided that in the aggregate since the Issue Date; provided, however, that each case of any Restricted Payment described in clauses (A) and (B) of this sentence shall be taken into account for purposes of computing the aggregate amount of all Restricted Payments pursuant to clause (iii3), (8) or (10) of paragraph (a). (c) above, no Default shall have occurred and be continuing or occur as a consequence thereof. For purposes of determining the aggregate and permitted amounts of Restricted Payments madethis covenant, the amount of any guarantee of any Investment in any Person that was initially treated as if a particular Restricted Payment and which was subsequently terminated or expiredinvolves a non-cash payment, net including a distribution of any amounts paid by the Company or any assets, then such Restricted Subsidiary in respect of such guarantee, shall be deducted. (d) In determining the "fair market value of Property" for purposes of clause (iii) of the paragraph (a), Property other than cash, Cash Equivalents and Marketable Securities Payment shall be deemed to be an amount equal in value to the "equity value" cash portion of such Restricted Payment, if any, plus an amount equal to the Fair Market Value of the Capital Stock or other securities issued in exchange therefor. The "equity value" non-cash portion of such Capital Stock or other securities shall be equal to (i) the number of shares of Common Equity issued in the transaction (or issuable upon conversion or exercise of the Capital Stock or other securities issued in the transaction) multiplied by the closing sale price of the Common Equity on its principal market on the date of the transaction (less, in the case of Capital Stock or other securities which require the payment of consideration at the time of conversion or exercise, the aggregate consideration payable thereupon) or (ii) if the Common Equity is not then traded on the New York Stock Exchange, American Stock Exchange or Nasdaq National Market, or if the Capital Stock or other securities issued in the transaction do not consist of Common Equity (or Capital Stock or other securities convertible into or exercisable for Common Equity), the value of such Capital Stock or other securities as determined by a nationally recognized investment banking firm retained by the Board of Directors of the CompanyRestricted Payment.

Limitations on Restricted Payments. (a) Until the Notes are rated Investment Grade by both Rating Agencies (after which time the following covenant will no longer be in effect), the Company The Issuer will not, and will not cause or permit any Restricted Subsidiary to, directly or indirectly, make any Restricted Payment unlessif at the time of such Restricted Payment: (i1) no Default or Event of a Default shall have occurred and be continuing at the time of or immediately after giving effect to such Restricted Paymentshall occur as a consequence thereof; (ii2) immediately after giving effect the Issuer cannot incur $1.00 of additional Indebtedness pursuant to the Coverage Ratio Exception; or (3) the amount of such Restricted Payment, the Company could incur at least $1.00 of Indebtedness pursuant when added to Section 3.02(a) hereof; and (iii) immediately after giving effect to such Restricted Payment, the aggregate amount of all other Restricted Payments (including the Fair Market Value of any non-cash Restricted Payment) declared or made after the Issue Date does not exceed (other than Restricted Payments made pursuant to clauses (2) through (7), (8) (with respect to non-cash dividends only), (10) and (11) of Section 4.08(b), exceeds the sum (the “Restricted Payments Basket”) of (awithout duplication): (i) 50% of the Consolidated Net Income of the Company on a cumulative basis during for the period (taken as one accounting period) from commencing on the first (1st) day of the first full fiscal quarter commencing after the Issue Date to and including April 1, 1998 and ending on the last day of the Company's fiscal quarter ended immediately preceding prior to the date of such Restricted Payment calculation for which consolidated financial statements are available (or in the event or, if such Consolidated Net Income shall be a deficit, minus 100% of such aggregate deficit), plus plus (bii) 100% of the aggregate net proceeds, including cash proceeds of and the fair market value Fair Market Value of Property the equity of a Person or of assets used in or constituting a line of business, in each case which becomes or becomes owned by a Restricted Subsidiary, received by the Company Issuer from (1) any capital contribution to the Company after June 9, 1997 or any issue or issuance and sale after June 9, 1997 of Qualified Stock (other than to any Subsidiary of the Company) and (2) the issue or sale Equity Interests after June 9, 1997 of any Indebtedness or other securities of the Company convertible into or exercisable for Qualified Stock of the Company that have been so converted or exercised, as the case may be, plus (c) $86.0 million, which is equal to the aggregate principal amount of the Company's 6-7/8% Convertible Subordinated Notes due 2002 that were converted into the Company's Common Equity prior to the Issue Date, plus (d) in the case of the disposition or repayment of other than any Investment constituting a Restricted Payment made after the June 9, 1997, an amount (such proceeds which are used to the extent not included in the calculation of the Consolidated Net Income referred to in (a)) equal to the lesser of (x) the return of capital with respect to such Investment (including by dividend, distribution or sale of Capital Stock) and (y) the amount of such Investment that was treated as a Restricted Payment, in either case, less the cost of the disposition or repayment of such Investment (to the extent not included in the calculation of the Consolidated Net Income referred to in (a)), plus (e) with respect to any Unrestricted Subsidiary that is redesignated as a Restricted Subsidiary after June 9, 1997 redeem Notes in accordance with Section 6 of the definition of Unrestricted Subsidiary (so long as Notes, provided that the designation of such Subsidiary as an Unrestricted Subsidiary was treated as a Restricted Payment made after June 9, 1997 and only Issuer delivers to the extent not included in the calculation of the Consolidated Net Income referred to in (a)), an amount equal to the lesser of (x) the proportionate interest of the Company or a Restricted Subsidiary in an amount equal to the excess of (I) the total assets of such Subsidiary, valued on an aggregate basis at the lesser of book value and Fair Market Value thereof, over (II) the total liabilities of such Subsidiary, determined in accordance with GAAP, and (y) the Designation Amount at the time of such Subsidiary's designation as an Unrestricted Subsidiary, plus (f) $50 million minus (g) the aggregate amount of all Restricted Payments (other than Restricted Payments referred to in clause (C) of the immediately succeeding paragraph) made after June 9, 1997 through the Issue Date. (b) Clauses (ii) and (iii) of paragraph (a) will not prohibit: (A) the payment of any dividend within 60 days of its declaration if such dividend could have been made on the date of its declaration without violation of the provisions of this Indenture; (B) the repurchase, redemption or retirement of any shares of Capital Stock of the Company in exchange for, or out of the net proceeds of the substantially concurrent sale (other than to a Subsidiary of the Company) of, other shares of Qualified Stock; and (C) 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 Subsidiary held by officers or employees or former officers or employees of the Company or any Subsidiary (or their estates or beneficiaries under their estates) not to exceed $20 million in the aggregate since the Issue Date; provided, however, that each Restricted Payment described in clauses (A) and (B) of this sentence shall be taken into account for purposes of computing the aggregate amount of all Restricted Payments pursuant to clause (iii) of paragraph (a). (c) For purposes of determining the aggregate and permitted amounts of Restricted Payments made, the amount of any guarantee of any Investment in any Person that was initially treated as a Restricted Payment and which was subsequently terminated or expired, net of any amounts paid by the Company or any Restricted Subsidiary in respect of such guarantee, shall be deducted. (d) In determining the "fair market value of Property" for purposes of clause (iii) of the paragraph (a), Property other than cash, Cash Equivalents and Marketable Securities shall be deemed to be equal in value to the "equity value" of the Capital Stock or other securities issued in exchange therefor. The "equity value" of such Capital Stock or other securities shall be equal to (i) the number of shares of Common Equity issued in the transaction (or issuable upon conversion or exercise of the Capital Stock or other securities issued in the transaction) multiplied by the closing sale price of the Common Equity on its principal market on the date of the transaction (less, in the case of Capital Stock or other securities which require the payment of consideration at the time of conversion or exercise, the aggregate consideration payable thereupon) or (ii) if the Common Equity is not then traded on the New York Stock Exchange, American Stock Exchange or Nasdaq National Market, or if the Capital Stock or other securities issued in the transaction do not consist of Common Equity (or Capital Stock or other securities convertible into or exercisable for Common Equity), the value of such Capital Stock or other securities as determined by a nationally recognized investment banking firm retained by the Board of Directors of the Company.Trustee:

Limitations on Restricted Payments. (a) Until the Notes are rated Investment Grade by both Rating Agencies (after which time the following covenant will no longer be in effect), the Company The Issuer will not, and will not cause or permit any Restricted Subsidiary to, directly or indirectly, make any Restricted Payment unlessif at the time of such Restricted Payment: (i1) no Default or Event of a Default shall have occurred and be continuing at or shall occur as a consequence thereof; (2) (A) with respect to a Restricted Payment by the time Issuer or any Restricted Subsidiary of or the Issuer (other than CPI and its Restricted Subsidiaries), immediately after giving effect to such transaction on a pro forma basis, the Issuer could not incur $1.00 of additional Indebtedness pursuant to the Issuer Leverage Ratio Exception or (B) with respect to a Restricted Payment; (ii) Payment by CPI. or any Restricted Subsidiary of CPI, immediately after giving effect to such Restricted Paymenttransaction on a pro forma basis, the Company CPI could not incur at least $1.00 of additional Indebtedness pursuant to Section 3.02(a) hereofthe CPI Coverage Ratio Exception (calculated by replacing the references to the Issuer in the relevant definitions with CPI and its Restricted Subsidiaries); andor (iii3) immediately after giving effect to the amount of such Restricted Payment, when added to the aggregate amount of all other Restricted Payments (including the Fair Market Value of any non-cash Restricted Payment) declared or made after the Issue Date does not exceed January 23, 2004 (other than Restricted Payments made pursuant to clause (2), (3), (4), (5), (6) or (7) of Section 4.11(b)), exceeds the sum (the “Restricted Payments Basket”) of (without duplication): (a) 50% of the Consolidated Net Income of the Company on a cumulative basis during for the period (taken as one accounting period) from commencing on January 1, 2004 to and including April 1, 1998 and ending on the last day of the Company's fiscal quarter ended immediately preceding prior to the date of such Restricted Payment calculation for which consolidated financial statements are available (or in the event or, if such Consolidated Net Income shall be a deficit, minus 100% of such aggregate deficit), plus ; plus (b) 100% of the aggregate net proceeds, including cash proceeds of and the fair market value Fair Market Value of Property property other than cash, received by the Company from Issuer either (1x) any capital contribution as contributions to the Company common equity of the Issuer after June 9January 23, 1997 2004, or any issue or (y) from the issuance and sale after June 9, 1997 of Qualified Stock Equity Interests after January 23, 2004, other than any such proceeds which are used to redeem Notes in accordance with Section 6 of the Notes; plus (c) the aggregate amount by which Indebtedness (other than any Subordinated Indebtedness) incurred by the Issuer or any Restricted Subsidiary subsequent to any January 23, 2004 is reduced on the Issuer’s balance sheet upon the conversion or exchange (other than by a Subsidiary of the CompanyIssuer) and into Qualified Equity Interests (2) less the issue or sale after June 9, 1997 amount of any Indebtedness cash, or other securities the fair value of assets, distributed by the Company convertible into Issuer or exercisable for Qualified Stock of the Company that have been so converted any Restricted Subsidiary upon such conversion or exercised, as the case may be, plus (c) $86.0 million, which is equal to the aggregate principal amount of the Company's 6-7/8% Convertible Subordinated Notes due 2002 that were converted into the Company's Common Equity prior to the Issue Date, plus exchange); plus (d) in the case of the disposition or repayment of or return on any Investment constituting that was treated as a Restricted Payment made after the June 9January 23, 19972004, an amount (to the extent not included in the calculation computation of the Consolidated Net Income referred to in (a)Income) equal to the lesser of (xi) 100% of the aggregate amount received by the Issuer or any Restricted Subsidiary in cash or other property (valued at the Fair Market Value thereof) as the return of capital with respect to such Investment (including by dividend, distribution or sale of Capital Stock) and (yii) the amount of such Investment that was treated as a Restricted Payment, in either case, less the cost of the disposition or repayment of such Investment (to the extent not included in the calculation and net of the Consolidated Net Income referred to in (a)), plus taxes; plus (e) with respect to any upon a Redesignation of an Unrestricted Subsidiary that is redesignated as a Restricted Subsidiary after June 9, 1997 in accordance with the definition of Unrestricted Subsidiary (so long as the designation of such Subsidiary as an Unrestricted Subsidiary was treated as a Restricted Payment made after June 9, 1997 and only to the extent not included in the calculation of the Consolidated Net Income referred to in (a)), an amount equal to the lesser of (xi) the proportionate interest of the Company or a Restricted Subsidiary in an amount equal to the excess of (I) the total assets of such Subsidiary, valued on an aggregate basis at the lesser of book value and Fair Market Value thereof, over (II) of the total liabilities of Issuer’s proportionate interest in such Subsidiary, determined in accordance with GAAP, Subsidiary immediately following such Redesignation and (y) the Designation Amount at the time of such Subsidiary's designation as an Unrestricted Subsidiary, plus (f) $50 million minus (gii) the aggregate amount of all the Issuer’s Investments in such Subsidiary to the extent such Investments reduced the Restricted Payments (other than Restricted Payments referred to in clause (C) of the immediately succeeding paragraph) made after June 9, 1997 through the Issue DateBasket and were not previously repaid or otherwise reduced. (b) Clauses (ii) and (iii) of paragraph (a) The foregoing provisions will not prohibit: : (A1) the payment by the Issuer or any Restricted Subsidiary of any dividend within 60 days after the date of its declaration thereof, if such dividend could have been made on the date of its declaration without violation of the payment would have complied with the provisions of this Indenture; ; (B2) the repurchase, redemption or retirement of any shares of Capital Stock Equity Interests of the Company Issuer or any Restricted Subsidiary in exchange for, or out of the net proceeds of the substantially concurrent issuance and sale of, Qualified Equity Interests; (other than to a Subsidiary 3) the redemption of Subordinated Indebtedness of the CompanyIssuer or any Restricted Subsidiary (a) in exchange for, or out of the proceeds of the substantially concurrent issuance and sale of, other shares of Qualified StockEquity Interests; and (Cb) the purchase, redemption or other acquisition, cancellation or retirement for value of Capital Stockin exchange for, or options, warrants, equity appreciation rights or other rights to purchase or acquire Capital Stock, out of the Company proceeds of the substantially concurrent incurrence of, Refinancing Indebtedness permitted to be incurred under Section 4.10 and the other terms of this Indenture; or (c) upon a Change of Control or in connection with an Asset Sale to the extent required by the agreement governing such Subordinated Indebtedness but only if the Issuer shall have complied with Section 4.09 and Section 4.13 and purchased all Notes validly tendered pursuant to the relevant offer prior to purchasing or repaying such Subordinated Indebtedness; (4) payments (a) by the Issuer or (b) to any Subsidiary direct or indirect parent company of the Issuer to permit such parent company, and which are used by such parent company, to redeem Equity Interests of the Issuer or such parent company held by officers officers, directors or employees or former officers officers, directors or employees of the Company or any Subsidiary (or their transferees, estates or beneficiaries under their estates) of the Issuer or any of the Restricted Subsidiaries, upon their death, disability, retirement, severance or termination of employment or service; provided that the aggregate cash consideration paid for all such redemptions shall not exceed $2.0 million during any calendar year (with unused amounts in any calendar year being usable, without duplication, in subsequent calendar years, provided that not more than $4.0 million of unused amounts from previous calendar years may be utilized in any single calendar year); (5) payments, distributions or Investments permitted pursuant to clauses (2), (3) and (4) of Section 4.14(b); (6) repurchases of Equity Interests deemed to occur upon the exercise of stock options or warrants if the Equity Interests represent a portion of the exercise price thereof; (7) the declaration or payment of dividends or distributions or other payments to stockholders and optionholders of the Issuer, or repurchases of Equity Interests of the Issuer, with the net proceeds received by the Issuer from the sale of the Notes on the Issue Date; or (8) other Restricted Payments in an aggregate amount not to exceed $20 million 30.0 million; provided that (a) in the aggregate since the Issue Date; provided, however, that each case of any Restricted Payment described in clauses (A) and (B) of this sentence shall be taken into account for purposes of computing the aggregate amount of all Restricted Payments pursuant to clause (iii) of paragraph (a). (c) For purposes of determining the aggregate and permitted amounts of Restricted Payments made, the amount of any guarantee of any Investment in any Person that was initially treated as a Restricted Payment and which was subsequently terminated or expired, net of any amounts paid by the Company or any Restricted Subsidiary in respect of such guarantee, shall be deducted. (d) In determining the "fair market value of Property" for purposes of clause (iii) of the paragraph (a2), Property other than cash, Cash Equivalents and Marketable Securities shall be deemed to be equal in value to the "equity value" of the Capital Stock or other securities issued in exchange therefor. The "equity value" of such Capital Stock or other securities shall be equal to (i) the number of shares of Common Equity issued in the transaction (or issuable upon conversion or exercise of the Capital Stock or other securities issued in the transaction) multiplied by the closing sale price of the Common Equity on its principal market on the date of the transaction (less, in the case of Capital Stock or other securities which require the payment of consideration at the time of conversion or exercise, the aggregate consideration payable thereupon3) or (ii4) if above, no Default shall have occurred and be continuing or occur as a consequence thereof and (b) to the Common extent the issuance and sale of Qualified Equity is Interests are used to make a payment pursuant to clause (2) or (3) above, such issuance and sale shall not then traded on increase the New York Stock Exchange, American Stock Exchange or Nasdaq National Market, or if the Capital Stock or other securities issued in the transaction do not consist of Common Equity (or Capital Stock or other securities convertible into or exercisable for Common Equity), the value of such Capital Stock or other securities as determined by a nationally recognized investment banking firm retained by the Board of Directors of the CompanyRestricted Payments Basket.

Limitations on Restricted Payments. (a) Until Except for payments contemplated by the Notes are rated Investment Grade by both Rating Agencies (after which time Transaction Documents to be made on the following covenant will no longer be in effect)Issue Date, the Company will shall not, and will shall not cause or permit any Restricted Subsidiary of its Subsidiaries to, directly or indirectly, make any Restricted Payment unlessPayments prior to October 1, 2014. On and after October 1, 2014, the Company may make Restricted Payments so long as each of the following conditions is satisfied: (i) Substantial Completion for both Units 1 and 2 of the Facilities has occurred; (ii) the date of such payment is a Restricted Payment Date (or within five (5) Business Days thereafter); (iii) at the time of and after giving effect to such Restricted Payment, no Default or Event of Default shall have occurred and be continuing at the time of or immediately after giving effect to such Restricted Paymentcontinuing; (iiiv) immediately after giving effect the Debt Service Coverage Ratio as of the applicable Restricted Payment Date is equal to such Restricted Paymentor greater than 1.70 to 1.0, the Company could incur at least $1.00 of Indebtedness pursuant to Section 3.02(a) hereofas set forth in an Officer’s Certificate; and (iiiA) immediately after giving effect to such Restricted Payment, the aggregate amount of all Restricted Payments (including the Fair Market Value of any non-cash Restricted Payment) declared or made after the Issue Date does not exceed the sum of (a) 50% of the Consolidated Net Income of the Company on a cumulative basis during the period (taken as one accounting period) from and including April 1, 1998 and ending on the last day of the Company's fiscal quarter immediately preceding the date of such Restricted Payment (or in the event such Consolidated Net Income Debt Service Reserve Account shall be a deficit, minus 100% of such deficit), plus (b) 100% of the aggregate net funded in cash proceeds of and the fair market value of Property received by the Company from (1) any capital contribution to the Company after June 9, 1997 or any issue or sale after June 9, 1997 of Qualified Stock (other than to any Subsidiary of the Company) and (2) the issue or sale after June 9, 1997 of any Indebtedness or other securities of the Company convertible into or exercisable for Qualified Stock of the Company that have been so converted or exercised, as the case may be, plus (c) $86.0 million, which is equal to the aggregate principal amount of the Company's 6-7/8% Convertible Subordinated Notes due 2002 that were converted into the Company's Common Equity prior to the Issue Date, plus (d) in the case of the disposition or repayment of any Investment constituting a Restricted Payment made after the June 9, 1997, an amount (to the extent not included in the calculation of the Consolidated Net Income referred to in (a)) equal to the lesser of (x) the return of capital with respect to such Investment (including by dividend, distribution or sale of Capital Stock) and (y) the amount of such Investment that was treated as a Restricted Payment, in either case, less the cost of the disposition or repayment of such Investment (to the extent not included in the calculation of the Consolidated Net Income referred to in (a)), plus (e) with respect to any Unrestricted Subsidiary that is redesignated as a Restricted Subsidiary after June 9, 1997 in accordance with the definition of Unrestricted Subsidiary (so long as the designation of such Subsidiary as an Unrestricted Subsidiary was treated as a Restricted Payment made after June 9, 1997 and only to the extent not included in the calculation of the Consolidated Net Income referred to in (a)), an amount equal to the lesser of (x) the proportionate interest of the Company or a Restricted Subsidiary in an amount equal to the excess of then-applicable Debt Service Reserve Amount, or (IB) the total assets requirement to so fund such account shall be satisfied by the Debt Service Reserve Letter of such SubsidiaryCredit, valued on an aggregate basis which shall be in full force and effect (and the amount available for drawing thereunder shall be at least equal to the lesser of book value and Fair Market Value thereofDebt Service Reserve Amount), over (II) the total liabilities of such Subsidiary, determined in accordance with GAAP, and (y) the Designation Amount at the time of such Subsidiary's designation as an Unrestricted Subsidiary, plus (f) $50 million minus (g) the aggregate amount of all Restricted Payments (other than Restricted Payments referred to in clause or (C) any combination of (A) and (B) (and in either case, no reimbursement obligation (including any deferred loan with respect thereto) shall then be outstanding with respect to the immediately succeeding paragraph) made after June 9, 1997 through the Issue DateDebt Service Reserve Letter of Credit). (b) Clauses (iiSection 4.14(a) and (iii) of paragraph (a) will shall not prohibit: : (Ai) the payment redemption, repurchase, retirement, defeasance or other acquisition of any dividend within 60 days of its declaration if such dividend could have been made on the date of its declaration without violation of the provisions of this Indenture; (B) the repurchase, redemption or retirement of any shares of Capital Stock of the Company or any Parent in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Wholly Owned Subsidiary of the Company) of, other shares of Qualified Stock; and (C) 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, Stock of the Company (and any distribution, loan or advance of such net cash proceeds to any Subsidiary held by officers Parent for such purpose) or employees out of contributions to the equity capital of the Company; (ii) the payment of dividends or former officers other distributions or employees the making of loans or advances to any Parent in amounts required for any Parent to pay franchise taxes and other fees required to maintain its existence and provide for all other operating costs of any Parent to the extent attributable to the ownership or operation of the Company and its Subsidiaries, if any, including, without limitation, in respect of director fees and expenses, administrative, legal and accounting services provided by third parties and other costs and expenses plus any indemnification claims made by directors or officers of any Subsidiary (Parent attributable to the ownership or their estates or beneficiaries under their estates) not to exceed $20 million in operation of the aggregate since the Issue DateCompany and its Subsidiaries, if any; provided, howeverthat the Company may not pay dividends or make distributions in excess of $3 million per fiscal year in reliance on this clause (b)(ii); (iii) beginning the first day after the later of (x) the date on which the first cash payment of interest shall have been paid on the Notes and (y) the date on which Substantial Completion for both Units 1 and 2 of the Facilities shall have occurred (the “Start Date”), that each Restricted Payment described the payment of dividends or other distributions to any Parent in clauses amounts required for any Parent to pay its taxes; provided that, (A) and the Company is a partnership or disregarded entity for U.S. federal income tax purposes of which any Parent is a partner or member; and (B) the cumulative amount of this sentence any such payments over all taxable periods since the Start Date will not exceed the cumulative amount of U.S. federal, state and local income taxes (including estimated taxes) that the Company would have been required to pay had the Company been taxable as a stand-alone C corporation with respect to the income of the Company for such periods (reduced by any income taxes of the Company directly paid to a Governmental Authority by the Company), and, for the avoidance of doubt, any loss, deduction, credit, refund or offset of the Company with respect to any taxable periods since the Start Date shall be taken into account in determining the tax liability for purposes of computing the aggregate amount of all Restricted Payments pursuant Company had the Company been taxable as a stand-alone C corporation to clause (iii) of paragraph (a)the extent permitted by applicable law. (civ) For purposes the redemption, repurchase, defeasance, or other acquisition or retirement of determining the aggregate and permitted amounts Subordinated Indebtedness of Restricted Payments made, the amount of any guarantee of any Investment in any Person that was initially treated as a Restricted Payment and which was subsequently terminated or expired, net of any amounts paid by the Company or any Restricted a Wholly Owned Subsidiary made in respect of such guaranteeexchange for, shall be deducted. (d) In determining the "fair market value of Property" for purposes of clause (iii) or out of the paragraph (a), Property other than cash, Cash Equivalents and Marketable Securities shall be deemed to be equal in value to the "equity value" proceeds of the Capital Stock or other securities issued in exchange therefor. The "equity value" of such Capital Stock or other securities shall be equal to (i) the number of shares of Common Equity issued in the transaction (or issuable upon conversion or exercise of the Capital Stock or other securities issued in the transaction) multiplied by the closing substantially concurrent sale price of the Common Equity on its principal market on the date of the transaction (less, in the case of Capital Stock of the Company or other securities which require the payment of consideration at the time of conversion or exercise, the aggregate consideration payable thereupon) or (ii) if the Common Equity is not then traded on the New York Stock Exchange, American Stock Exchange or Nasdaq National Market, or if the Capital Stock or other securities issued in the transaction do not consist of Common Equity (or Capital Stock or other securities convertible into or exercisable for Common Equity), the value of such Capital Stock or other securities as determined by a nationally recognized investment banking firm retained by the Board of Directors Wholly Owned Subsidiary of the Company.

Limitations on Restricted Payments. (a) Until the Notes are rated Investment Grade by both Rating Agencies (after which time the following covenant will no longer be in effect), the Company will The Parent shall not, and will shall not cause or permit any Restricted Subsidiary to, directly or indirectly, make any Restricted Payment unless: (i1) no Default or Event of Default shall have occurred and be continuing at the time of or immediately after giving effect to such Restricted Payment; (ii2) immediately after giving effect to such Restricted Payment, the Company Parent could incur at least $1.00 of additional Indebtedness pursuant to Section 3.02(a) hereofthe Ratio Exception; and (iii3) immediately after giving effect to the amount of such Restricted Payment, when added to the aggregate amount of all other Restricted Payments (including the Fair Market Value of any non-cash Restricted Payment) declared or made after the Issue Date November 8, 2012 (other than Restricted Payments made pursuant to Section 4.04(b) (2), (3), (4), (5), (6), or (7)), does not exceed the sum (the “Restricted Payments Basket”) of (awithout duplication): (A) 50% of the Consolidated Net Income of the Company on a cumulative basis during for the period (taken as one accounting period) from October 1, 2012 to and including April 1, 1998 and ending on the last day of the Company's fiscal quarter ended immediately preceding prior to the date of such Restricted Payment calculation for which consolidated financial statements are available (or in the event or, if such Consolidated Net Income shall be a deficit, minus 100% of such aggregate deficit), plus plus (bB) 100% of the aggregate net cash proceeds or the Fair Market Value (as determined by the Board of and the fair market value Directors of Property Parent) of any assets to be used in a Permitted Business received by the Company from Parent either (1x) any capital contribution as contributions to the Company common equity of the Parent after June 9November 8, 1997 2012 or (y) from the issuance and sale of Qualified Equity Interests after November 8, 2012, plus (C) the aggregate amount by which Indebtedness of the Parent or any issue Restricted Subsidiary is reduced on the Parent’s balance sheet upon the conversion or sale after June 9, 1997 of Qualified Stock exchange (other than to any by a Subsidiary of the CompanyParent) and of Indebtedness issued subsequent to November 8, 2012 into Qualified Equity Interests (2) less the issue or sale after June 9, 1997 amount of any Indebtedness cash, or other securities the fair value of assets, distributed by the Company convertible into Parent or exercisable for Qualified Stock of the Company that have been so converted any Restricted Subsidiary upon such conversion or exercisedexchange), as the case may be, plus plus (c) $86.0 million, which is equal to the aggregate principal amount of the Company's 6-7/8% Convertible Subordinated Notes due 2002 that were converted into the Company's Common Equity prior to the Issue Date, plus (dD) in the case of the disposition or repayment of or return on any Investment constituting that was treated as a Restricted Payment made after the June 9November 8, 19972012, an amount (to the extent not included in the calculation computation of the Consolidated Net Income referred to in (a)Income) equal to the lesser of (xi) the return of capital with respect to such Investment (including by dividend, distribution or sale of Capital Stock) and (yii) the amount of such Investment that was treated as a Restricted Payment, in either case, less the cost of the disposition or repayment of such Investment and net of taxes, plus (E) upon a Redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary, the lesser of (i) the Fair Market Value of the Parent’s proportionate interest in such Subsidiary immediately following such Redesignation, and (ii) the aggregate amount of the Parent’s Investments in such Subsidiary to the extent such Investments reduced the amount available for subsequent Restricted Payments under this Section 4.04(a)(E) and were not included in the calculation previously repaid or otherwise reduced, plus (F) 100% of the Consolidated Net Income referred principal amount of, or, if issued at a discount, the accreted value of, any guarantee by the Parent or any Restricted Subsidiary incurred after November 8, 2012 that is subsequently released (other than due to in (a)a payment on such guarantee), plus (e) with respect but only to any Unrestricted Subsidiary the extent that is redesignated as a Restricted Subsidiary after June 9, 1997 in accordance with the definition of Unrestricted Subsidiary (so long as the designation of such Subsidiary as an Unrestricted Subsidiary guarantee was treated as a Restricted Payment pursuant to this paragraph (a) when made. (b) The provisions of Section 4.04(a) shall not prohibit: (1) the payment by the Parent or any Restricted Subsidiary of any dividend or similar distribution within 60 days after the date of declaration thereof, if on the date of declaration the payment would have complied with the provisions of this Indenture; (2) the making of any Restricted Payment in exchange for, or out of the proceeds of the substantially concurrent issuance and sale of, Qualified Equity Interests (other than to the Parent or any of its Subsidiaries); (3) the repurchase, redemption, defeasance or other acquisition or retirement for value of Subordinated Indebtedness of the Parent or any Restricted Subsidiary in exchange for, or out of the proceeds of the substantially concurrent incurrence of, Refinancing Indebtedness permitted to be incurred under Section 4.03 and the other terms of this Indenture; (4) the repurchase, redemption, defeasance or other acquisition or retirement for value of Equity Interests of the Parent held by officers, directors or employees or former officers, directors or employees (or their transferees, estates or beneficiaries under their estates), upon their bankruptcy or petition for bankruptcy, death, disability, retirement, severance or termination of employment or service or any other repurchase event set forth in a written agreement between Parent and such individual evidencing such Equity Interest as of the Bridge Loan Closing Date; provided that the aggregate cash consideration paid for all such redemptions shall not exceed $4,000,000 during any calendar year; (5) repurchases of Equity Interests deemed to occur upon the exercise of stock options or stock appreciation rights if the Equity Interests represents a portion of the exercise price thereof; (6) the repurchase of Equity Interests upon vesting of restricted stock, restricted stock units, performance share units or similar equity incentives to satisfy tax withholding or similar tax obligations with respect thereto; or (7) Restricted Payments in an aggregate amount, when taken together with all Restricted Payments made after June 9pursuant to this Section 4.04(b)(7) and then outstanding, 1997 does not exceed $20,000,000. provided that no issuance and only sale of Qualified Equity Interests pursuant to Section 4.04(b)(2) or (3) shall increase the Restricted Payments Basket, except to the extent not included in the calculation of proceeds thereof exceed the Consolidated Net Income referred amounts used to in (a)), an amount equal to effect the lesser of (x) the proportionate interest of the Company or a Restricted Subsidiary in an amount equal to the excess of (I) the total assets of such Subsidiary, valued on an aggregate basis at the lesser of book value and Fair Market Value thereof, over (II) the total liabilities of such Subsidiary, determined in accordance with GAAP, and (y) the Designation Amount at the time of such Subsidiary's designation as an Unrestricted Subsidiary, plus (f) $50 million minus (g) the aggregate transactions described therein. The amount of all Restricted Payments (other than Restricted Payments referred to in clause (C) of the immediately succeeding paragraph) made after June 9, 1997 through the Issue Date. (b) Clauses (ii) and (iii) of paragraph (acash) will not prohibit: (A) be the payment of any dividend within 60 days of its declaration if such dividend could have been made on the date of its declaration without violation of the provisions of this Indenture; (B) the repurchase, redemption or retirement of any shares of Capital Stock of the Company in exchange for, or out of the net proceeds of the substantially concurrent sale (other than to a Subsidiary of the Company) of, other shares of Qualified Stock; and (C) 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 Subsidiary held by officers or employees or former officers or employees of the Company or any Subsidiary (or their estates or beneficiaries under their estates) not to exceed $20 million in the aggregate since the Issue Date; provided, however, that each Restricted Payment described in clauses (A) and (B) of this sentence shall be taken into account for purposes of computing the aggregate amount of all Restricted Payments pursuant to clause (iii) of paragraph (a). (c) For purposes of determining the aggregate and permitted amounts of Restricted Payments made, the amount of any guarantee of any Investment in any Person that was initially treated as a Restricted Payment and which was subsequently terminated or expired, net of any amounts paid by the Company or any Restricted Subsidiary in respect of such guarantee, shall be deducted. (d) In determining the "fair market value of Property" for purposes of clause (iii) of the paragraph (a), Property other than cash, Cash Equivalents and Marketable Securities shall be deemed to be equal in value to the "equity value" of the Capital Stock or other securities issued in exchange therefor. The "equity value" of such Capital Stock or other securities shall be equal to (i) the number of shares of Common Equity issued in the transaction (or issuable upon conversion or exercise of the Capital Stock or other securities issued in the transaction) multiplied by the closing sale price of the Common Equity on its principal market Fair Market Value on the date of the transaction (lessRestricted Payment of the asset(s) or securities proposed to be transferred or issued by the Parent or a Restricted Subsidiary of the Parent, in as the case of Capital Stock or other securities which require may be, pursuant to the payment of consideration at the time of conversion or exercise, the aggregate consideration payable thereupon) or (ii) if the Common Equity is not then traded on the New York Stock Exchange, American Stock Exchange or Nasdaq National Market, or if the Capital Stock or other securities issued in the transaction do not consist of Common Equity (or Capital Stock or other securities convertible into or exercisable for Common Equity), the value of such Capital Stock or other securities as determined by a nationally recognized investment banking firm retained by the Board of Directors of the CompanyRestricted Payment.

Limitations on Restricted Payments. (a) Until Subject to the Notes are rated Investment Grade by both Rating Agencies (after which time the following covenant will no longer be in effect)other provisions of this Section 1006, the Company will shall not, and will not cause nor shall it cause, permit or permit suffer any Restricted Subsidiary to, (i) declare or pay any dividends or make any other distributions (including through mergers, liquidations or other transactions) on any class of Equity Interests of the Company or such Restricted Subsidiary (other than dividends or distributions payable by a Wholly-Owned Restricted Subsidiary on account of its Equity Interests held by the Company or another Restricted Subsidiary or payable in shares of Capital Stock of the Company other than Redeemable Stock), (ii) make any payment on account of, or set apart money for a sinking or other analogous fund for, the purchase, redemption or other retirement of such Equity Interests, (iii) purchase, defease, redeem or otherwise retire any Indebtedness issued by the Company or any Restricted Subsidiary that is Subordinated Indebtedness to the Securities, or (iv) make any Restricted Investment, either directly or indirectly, make whether in cash or property or in obligations of the Company (all of the foregoing being called "Restricted Payments"), unless (x) in the case of a dividend, such dividend is payable not more than 60 days after the date of declaration and (y) after giving effect to such proposed Restricted Payment, all the conditions set forth in clauses (1) through (3) below are satisfied (A) at the date of declaration (in the case of any dividend), (B) at the date of such setting apart (in the case of any such fund) or (C) on the date of such other payment or distribution (in the case of any other Restricted Payment unless:Payment) (each such date being referred to as a "Computation Date"): (i1) no Default or Event of Default shall have occurred and be continuing or would result from the making of such Restricted Payment; (2) at the time of or immediately Computation Date for such Restricted Payment and after giving effect to such Restricted Payment; (ii) immediately after giving effect to such Restricted PaymentPayment on a pro forma basis, the Company or such Restricted Subsidiary could incur at least $1.00 of additional Indebtedness pursuant to the covenant described in the initial paragraph under Section 3.02(a) 1008 hereof; and (iii3) immediately after giving effect to such Restricted Payment, the aggregate amount of all Restricted Payments declared, paid or distributed subsequent to the Issue Date (including the Fair Market Value of any non-cash proposed Restricted Payment) declared or made after the Issue Date does shall not exceed the sum of (ai) 50% of the cumulative Consolidated Net Income of the Company on a cumulative basis during for the period (taken as one accounting period) from commencing on the first day of the first full quarter after the Issue Date to and including April 1, 1998 and ending on the last day of the Company's last fiscal quarter immediately preceding ending prior to the date of Computation Date (each such Restricted Payment period to constitute a "Computation Period") (or or, in the event such Consolidated Net Income shall be of the Company during the Computation Period is a deficit, then minus 100% of such deficit), plus (bii) 100% the aggregate Net Cash Proceeds of the aggregate net cash proceeds of and the fair market value of Property received by the Company from (1) any capital contribution to the Company after June 9, 1997 or any issue issuance or sale after June 9, 1997 of Qualified Stock or the exercise (other than to any a Subsidiary of the Company) and (2) the issue or sale after June 9, 1997 of any Indebtedness an employee stock ownership plan or other securities of trust established by the Company convertible into or exercisable any of its Subsidiaries for Qualified Stock the benefit of the Company that have been so converted or exercised, as the case may be, plus (ctheir employees) $86.0 million, which is equal to the aggregate principal amount of the Company's 6-7/8% Convertible Subordinated Notes due 2002 that were converted into the Company's Common Equity prior Interests (other than Redeemable Stock) subsequent to the Issue Date, plus (d) in the case of the disposition or repayment of any Investment constituting a Restricted Payment made after the June 9, 1997, an amount (to the extent not included in the calculation of the Consolidated Net Income referred to in (a)) equal to the lesser of (x) the return of capital with respect to such Investment (including by dividend, distribution or sale of Capital Stock) and (y) the amount of such Investment that was treated as a Restricted Payment, in either case, less the cost of the disposition or repayment of such Investment (to the extent not included in the calculation of the Consolidated Net Income referred to in (a)), plus (e) with respect to any Unrestricted Subsidiary that is redesignated as a Restricted Subsidiary after June 9, 1997 in accordance with the definition of Unrestricted Subsidiary (so long as the designation of such Subsidiary as an Unrestricted Subsidiary was treated as a Restricted Payment made after June 9, 1997 and only to the extent not included in the calculation of the Consolidated Net Income referred to in (a)), an amount equal to the lesser of (x) the proportionate interest of the Company or a Restricted Subsidiary in an amount equal to the excess of (I) the total assets of such Subsidiary, valued on an aggregate basis at the lesser of book value and Fair Market Value thereof, over (II) the total liabilities of such Subsidiary, determined in accordance with GAAP, and (y) the Designation Amount at the time of such Subsidiary's designation as an Unrestricted Subsidiary, plus (f) $50 million minus (g) the aggregate amount of all Restricted Payments (other than Restricted Payments referred to in clause (C) of the immediately succeeding paragraph) made after June 9, 1997 through the Issue Date. (b) Clauses (ii) and (iii) of paragraph $15,000,000. (a) will not prohibit: (A) the payment of any dividend within 60 days of its declaration if such dividend could have been made on the date of its declaration without violation of the provisions of this Indenture; (B) the repurchase, redemption or retirement of any shares of Capital Stock of Restricted Investments acquired by the Company in connection with any Asset Sale consummated in accordance with Section 1009, hereof, to the extent such Investments are permitted under such covenant, provided, however, that such Restricted Investments shall be excluded in the -------- ------- calculation of the amount of Restricted Payments previously made for purposes of clause (3) of the preceding paragraph; (b) any purchase or redemption of Equity Interests or Subordinated Indebtedness made by exchange for, or out of the net proceeds of the substantially concurrent sale of, Equity Interests of the Company (other than Redeemable Stock and other than Equity Interests issued or sold to a Subsidiary or an employee stock ownership plan), provided, however, -------- ------- that (x) such purchase or redemption shall be excluded in the calculation of the Companyamount of Restricted Payments previously made for purposes of clause (3) of the preceding paragraph and (y) the Net Cash Proceeds from such sale shall be excluded for purposes of clause 3(ii) of the preceding paragraph to the extent utilized for purposes of such purchase or redemption; (c) any purchase or redemption of Subordinated Indebtedness of the Company made by exchange for, or out of the proceeds of the substantially concurrent sale of, other shares of Qualified Stock; and (C) 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, Subordinated Indebtedness of the Company or any Restricted Subsidiary which is permitted to be issued pursuant to the provisions of Section 1008 hereof, provided, however, -------- ------- that such purchase or redemption shall be excluded in the calculation of the amount of Restricted Payments previously made for purposes of clause (3) of the preceding paragraph; and (d) the purchase of Capital Stock held by officers or employees or former officers or employees of the Company or any Subsidiary (pursuant to any employee stock ownership plan thereof upon the termination, retirement or their estates or beneficiaries under their estates) death of any such employee in accordance with the provisions of any such plan in an amount not to exceed greater than $20 million 1,000,000 in the aggregate since the Issue Date; any calendar year, provided, however, that each any such purchase shall -------- ------- be included in the calculation of the amount of Restricted Payment described in clauses (A) and (B) of this sentence shall be taken into account Payments previously made for purposes of computing the aggregate amount of all Restricted Payments pursuant to clause (iii3) of paragraph (a). (c) the preceding paragraph. For purposes of determining the aggregate and permitted amounts of Restricted Payments madethis Section 1006, (a) the amount of any guarantee of any Investment in any Person that was initially treated as a Restricted Payment and which was subsequently terminated declared, paid or expired, net distributed in property of any amounts paid by the Company or any Restricted Subsidiary in respect of such guarantee, shall be deducted. (d) In determining the "fair market value of Property" for purposes of clause (iii) of the paragraph (a), Property other than cash, Cash Equivalents and Marketable Securities shall be deemed to be equal the net book value of any such property that is intangible property and the Fair Market Value (as determined in value to the "equity value" good faith by and set forth in a resolution of the Capital Stock Board of Directors) of any such property that is tangible property at the Computation Date, in each case, after deducting related reserves for depreciation, depletion and amortization; (b) the amount of any Restricted Payment declared, paid or other securities issued distributed in exchange therefor. The "equity value" obligations of the Company or any Restricted Subsidiary shall be deemed to be the principal amount of such Capital Stock or other securities shall be equal to (i) the number obligations as of shares of Common Equity issued in the transaction (or issuable upon conversion or exercise of the Capital Stock or other securities issued in the transaction) multiplied by the closing sale price of the Common Equity on its principal market on the date of the transaction adoption of a resolution by the Board of Directors or such Restricted Subsidiary authorizing such Restricted Payment; and (less, in c) a distribution to holders of the case Company's Equity Interests of (i) shares of Capital Stock or other securities which require Equity Interests of any Restricted Subsidiary of the payment Company or (ii) other assets of the Company, without, in either case, the receipt of equivalent consideration therefor shall be regarded as the equivalent of a cash dividend equal to the excess of the Fair Market Value of the Equity Interests or other assets being so distributed at the time of conversion or exercisesuch distribution over the consideration, the aggregate consideration payable thereupon) or (ii) if the Common Equity is not then traded on the New York Stock Exchangeany, American Stock Exchange or Nasdaq National Market, or if the Capital Stock or other securities issued in the transaction do not consist of Common Equity (or Capital Stock or other securities convertible into or exercisable for Common Equity), the value of such Capital Stock or other securities as determined by a nationally recognized investment banking firm retained by the Board of Directors of the Companyreceived therefor.

Limitations on Restricted Payments. (a) Until the Notes are rated Investment Grade by both Rating Agencies (after which time the following covenant will no longer be in effect), the Company The Issuer will not, and will not cause or permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, make any Restricted Payment unless: (i1) no declare or pay any dividend or make any distribution on or with respect to Capital Stock of the Issuer held by Persons other than the Issuer or any of its Restricted Subsidiaries, other than dividends or distributions payable solely in shares of its Capital Stock (other than Disqualified Stock) or in options, warrants or other rights to acquire shares of such Capital Stock; (2) purchase, redeem, retire or otherwise acquire for value any shares of Capital Stock (including options, warrants or other rights to acquire such shares of Capital Stock) of the Issuer; (3) make any voluntary or optional principal payment, or voluntary or optional redemption, repurchase, defeasance, or other acquisition or retirement for value, of Indebtedness of the Issuer that is subordinated in right of payment to the Notes or the Subsidiary Guaranties of the Notes; or (4) make an Investment, other than a Permitted Investment, in any Person (such payments or any other actions described in clauses (1) through (4) above being collectively “Restricted Payments”) if, at the time of, and after giving effect to, the proposed Restricted Payment: (A) a Default or Event of Default shall have occurred and be continuing at the time of or immediately after giving effect to such Restricted Payment;continuing, (iiB) immediately after giving effect to such Restricted Payment, the Company Issuer could incur not Incur at least $1.00 of Indebtedness pursuant to under paragraphs (a), (b) and (c) of Section 3.02(a) hereof; and4.08, or (iiiC) immediately after giving effect to such Restricted Payment, the aggregate amount of all Restricted Payments (including the Fair Market Value amount, if other than in cash, to be determined in good faith by the Board of any non-cash Restricted PaymentDirectors, whose determination shall be conclusive and evidenced by a Board Resolution) declared or made after the Issue Date does not March 22, 2004 shall exceed the sum of of: (ai) 5095% of the Consolidated Net Income aggregate amount of the Company Funds From Operations (or, if the amount of Funds From Operations is a loss, minus 100% of the amount of such loss) accrued on a cumulative basis during the period (taken as one accounting period) from and including April beginning January 1, 1998 2004 and ending on the last day of the Company's last fiscal quarter immediately preceding the date of such Restricted Payment Transaction Date for which reports have been filed with the SEC or provided to the Trustee pursuant to the Section 4.15, plus (or in the event such Consolidated Net Income shall be a deficit, minus 100% of such deficit), plus (bii) 100% of the aggregate Net Cash Proceeds received by the Issuer after March 22, 2004 from the issuance and sale permitted by this Indenture of its Capital Stock (other than Disqualified Stock) to a Person who is not a Subsidiary of the Issuer, including from an issuance or sale permitted by this Indenture of Indebtedness of the Issuer for cash subsequent to March 22, 2004 upon the conversion of such Indebtedness into Capital Stock (other than Disqualified Stock) of the Issuer, or from the issuance to a Person who is not a Subsidiary of the Issuer of any options, warrants or other rights to acquire Capital Stock of the Issuer (in each case, exclusive of any Disqualified Stock or any options, warrants or other rights that are redeemable at the option of the holder, or are required to be redeemed, prior to the Stated Maturity of the Notes), plus (iii) an amount equal to the net cash reduction in Investments (other than reductions in Permitted Investments) in any Person after March 22, 2004 resulting from payments of interest on Indebtedness, dividends, repayments of loans or advances, or other transfers of assets, in each case to the Issuer or any of its Restricted Subsidiaries or from the Net Cash Proceeds from the sale of any such Investment (except, in each case, to the extent any such payment or proceeds are included in the calculation of Funds From Operations) or from redesignations of Unrestricted Subsidiaries as Restricted Subsidiaries (valued in each case as provided in the definition of “Investments”) not to exceed, in each case, the amount of Investments previously made by the Issuer and its Restricted Subsidiaries in such Person or Unrestricted Subsidiary, plus (iv) the fair market value of Property received by the Company from (1) any capital contribution to the Company after June 9, 1997 noncash tangible assets or any issue or sale after June 9, 1997 Capital Stock acquired in exchange for an issuance of Qualified Capital Stock (other than to any Subsidiary of the Company) and (2) the issue Disqualified Stock or sale after June 9, 1997 of any Indebtedness or other securities of the Company convertible into or exercisable Capital Stock issued in exchange for Qualified Capital Stock of the Company that have been so converted Issuer pursuant to clauses (3) or exercised(4) of the Section 4.09(c)) of the Issuer subsequent to March 22, as the case may be2004, plus plus (cv) $86.0 25 million. (b) Notwithstanding Section 4.09(a), which the Issuer may declare or pay any dividend or make any distribution that is equal necessary to maintain the Issuer’s status as a REIT under the Code if: (1) the aggregate principal amount of the Company's 6-7/8% Convertible Subordinated Notes due 2002 that were converted into the Company's Common Equity prior to the Issue Date, plus (d) in the case all outstanding Indebtedness of the disposition or repayment of any Investment constituting Issuer and its Restricted Subsidiaries on a Restricted Payment made after the June 9, 1997, an amount (to the extent not included in the calculation of the Consolidated Net Income referred to in (a)) equal to the lesser of (x) the return of capital with respect to such Investment (including by dividend, distribution or sale of Capital Stock) and (y) the amount of such Investment that was treated as a Restricted Payment, in either case, less the cost of the disposition or repayment of such Investment (to the extent not included in the calculation of the Consolidated Net Income referred to in (a)), plus (e) with respect to any Unrestricted Subsidiary that is redesignated as a Restricted Subsidiary after June 9, 1997 in accordance with the definition of Unrestricted Subsidiary (so long as the designation of such Subsidiary as an Unrestricted Subsidiary was treated as a Restricted Payment made after June 9, 1997 and only to the extent not included in the calculation of the Consolidated Net Income referred to in (a)), an amount equal to the lesser of (x) the proportionate interest of the Company or a Restricted Subsidiary in an amount equal to the excess of (I) the total assets of such Subsidiary, valued on an aggregate consolidated basis at the lesser such time is less than 60% of book value Adjusted Total Assets; and (2) no Default or Event of Default shall have occurred and Fair Market Value thereof, over (II) the total liabilities of such Subsidiary, determined in accordance with GAAP, and (y) the Designation Amount at the time of such Subsidiary's designation as an Unrestricted Subsidiary, plus (f) $50 million minus (g) the aggregate amount of all Restricted Payments (other than Restricted Payments referred to in clause (C) of the immediately succeeding paragraph) made after June 9, 1997 through the Issue Datebe continuing. (bc) Clauses (iiThe provisions of Section 4.09(a) and 4.09(b) shall not be violated by reason of: (iii) of paragraph (a) will not prohibit: (A1) the payment of any dividend within 60 days of its declaration if such dividend could have been made on after the date of its declaration without violation thereof if, at said date of declaration, such payment would comply with Section 4.09(b); (2) the provisions redemption, repurchase, defeasance or other acquisition or retirement for value of this Indenture; Indebtedness that is subordinated in right of payment to the Notes including premium, if any, and accrued and unpaid interest, with the proceeds of, or in exchange for, Indebtedness Incurred under Section 4.08(d)(3); (B3) the repurchase, redemption or other acquisition of Capital Stock of the Issuer or an Unrestricted Subsidiary (or options, warrants or other rights to acquire such Capital Stock) in exchange for, or out of the proceeds of an issuance of, shares of Capital Stock (other than Disqualified Stock) of the Issuer (or options, warrants or other rights to acquire such Capital Stock) within 90 days of such repurchase, redemption or other acquisition; (4) the making of any principal payment on, or the repurchase, redemption, retirement, defeasance or other acquisition for value of, Indebtedness of the Issuer which is subordinated in right of payment to the Notes in exchange for, or out of the proceeds of an issuance of, shares of the Capital Stock (other than Disqualified Stock) of the Issuer (or options, warrants or other rights to acquire such Capital Stock) within 90 days of such principal payment, repurchase, redemption, retirement, defeasance or other acquisition; (5) payments or distributions, to dissenting stockholders pursuant to applicable law pursuant to or in connection with a consolidation, merger or transfer of assets that complies with the provisions of this Indenture applicable to mergers, consolidations and transfers of all or substantially all of the property and assets of the Issuer; (6) the payment of any regularly scheduled cash dividend on shares of cumulative preferred stock of the Issuer outstanding on March 22, 2004 as in effect on March 22, 2004; (7) the repurchase, redemption or other acquisition or retirement for value of any shares of Capital Stock of the Company in exchange for, or out Issuer held by any member of the net proceeds Issuer’s (or any of the substantially concurrent sale (other than to a Subsidiary of the CompanyRestricted Subsidiaries’) of, other shares of Qualified Stock; and (C) the purchase, redemption management or other acquisitionemployees pursuant to (A) any management or employee equity subscription agreement, cancellation stock option agreement 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 Subsidiary held by officers or employees or former officers or employees of the Company or any Subsidiary (or their estates or beneficiaries under their estates) similar agreement in an aggregate amount not to exceed $20 1 million in the aggregate since in any 12-month period or (B) the Issue Dateterms of any employee stock option plan of the Issuer for the purpose of paying employee withholding taxes with respect to such shares; or (8) additional Restricted Payments in an aggregate amount not to exceed $15 million; provided, however, that each Restricted Payment described in clauses (A) and (B) of this sentence shall be taken into account for purposes of computing the aggregate amount of all Restricted Payments pursuant to clause (iii) of paragraph (a). (c) For purposes of determining the aggregate and permitted amounts of Restricted Payments madethat, the amount of any guarantee of any Investment in any Person that was initially treated as a Restricted Payment and which was subsequently terminated or expired, net of any amounts paid by the Company or any Restricted Subsidiary in respect of such guarantee, shall be deducted. (d) In determining the "fair market value of Property" for purposes of clause (iii) of the paragraph (a), Property other than cash, Cash Equivalents and Marketable Securities shall be deemed to be equal in value to the "equity value" of the Capital Stock or other securities issued in exchange therefor. The "equity value" of such Capital Stock or other securities shall be equal to (i) the number of shares of Common Equity issued in the transaction (or issuable upon conversion or exercise of the Capital Stock or other securities issued in the transaction) multiplied by the closing sale price of the Common Equity on its principal market on the date of the transaction (less, except in the case of clauses (1) and (3), no Default or Event of Default shall have occurred and be continuing or occur as a direct consequence of the actions or payments set forth therein. Each Restricted Payment permitted pursuant to the immediately preceding paragraph (other than the Restricted Payment referred to in clause (2) of the immediately preceding paragraph or an exchange of Capital Stock for Capital Stock or other securities which require the payment of consideration at the time of conversion or exercise, the aggregate consideration payable thereuponIndebtedness referred to in clause (3) or (ii4) if of the Common Equity is not then traded on immediately preceding paragraph), and the New York Stock Exchange, American Stock Exchange or Nasdaq National Market, or if the Net Cash Proceeds from any issuance of Capital Stock or other securities issued referred to in the transaction do not consist of Common Equity clauses (or Capital Stock or other securities convertible into or exercisable for Common Equity), the value of such Capital Stock or other securities as determined by a nationally recognized investment banking firm retained by the Board of Directors 3) and (4) of the Companyimmediately preceding paragraph, shall be included in calculating whether the conditions of Section 4.09(a)(C) have been met with respect to any subsequent Restricted Payments.

Limitations on Restricted Payments. (a) Until the Notes are rated Investment Grade by both Rating Agencies (after which time the following covenant will no longer be in effect), the The Company will shall not, and will shall not cause or permit any Restricted Subsidiary to, directly or indirectly, make any Restricted Payment unless: (i1) no Default or Event of Default shall have occurred and be continuing at the time of or immediately after giving effect to such Restricted Payment; (ii2) immediately after giving effect to such Restricted Payment, the Company could incur at least $1.00 of additional Indebtedness pursuant to Section 3.02(a) hereofthe Ratio Exception; and (iii3) immediately after giving effect to the amount of such Restricted Payment, when added to the aggregate amount of all other Restricted Payments (including the Fair Market Value of any non-cash Restricted Payment) declared or made after the Issue Date (other than Restricted Payments made pursuant to Section 4.09(b)(2), (3), (4), (5), (6) or (7)), does not exceed the sum (the “Restricted Payments Basket”) of (awithout duplication): (A) $50,000,000, plus (B) 50% of the Consolidated Net Income of the Company on a cumulative basis during for the period (taken as one accounting period) from and including April 1, 1998 2018 to and ending on including the last day of the Company's fiscal quarter ended immediately preceding prior to the date of such Restricted Payment calculation for which consolidated financial statements are available (or in the event or, if such Consolidated Net Income shall be a deficit, minus 100% of such aggregate deficit), plus plus (bC) 100% of the aggregate net cash proceeds or the Fair Market Value (as determined by the Board of and Directors of the fair market value Company) of Property any assets to be used in a Permitted Business received by the Company from either (1x) any capital contribution as contributions to the common equity of the Company after June 9the Issue Date or (y) from the issuance and sale of Qualified Equity Interests after the Issue Date, 1997 plus (D) the aggregate amount by which Indebtedness of the Company or any issue Restricted Subsidiary is reduced on the Company’s balance sheet upon the conversion or sale after June 9, 1997 of Qualified Stock exchange (other than to any by a Subsidiary of the Company) and of Indebtedness into Qualified Equity Interests (2) less the issue or sale after June 9, 1997 amount of any Indebtedness cash, or other securities the fair value of assets, distributed by the Company convertible into or exercisable for Qualified Stock of the Company that have been so converted any Restricted Subsidiary upon such conversion or exercisedexchange), as the case may be, plus plus (c) $86.0 million, which is equal to the aggregate principal amount of the Company's 6-7/8% Convertible Subordinated Notes due 2002 that were converted into the Company's Common Equity prior to the Issue Date, plus (dE) in the case of the disposition or repayment of or return on any Investment constituting that was treated as a Restricted Payment made after the June 9, 1997Issue Date, an amount (to the extent not included in the calculation computation of the Consolidated Net Income referred to in (a)Income) equal to the lesser of (xi) the return of capital with respect to such Investment (including by dividend, distribution or sale of Capital Stock) and (yii) the amount of such Investment that was treated as a Restricted Payment, in either case, less the cost of the disposition or repayment of such Investment and net of taxes, plus (F) upon a Redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary, the lesser of (i) the Fair Market Value of the Company’s proportionate interest in such Subsidiary immediately following such Redesignation, and (ii) the aggregate amount of the Company’s Investments in such Subsidiary to the extent such Investments reduced the amount available for subsequent Restricted Payments under this Section 4.09(a)(3)(F) and were not included previously repaid or otherwise reduced. (b) The provisions of Section 4.09(a) shall not prohibit: (1) the payment by the Company or any Restricted Subsidiary of any dividend or similar distribution within 60 days after the date of declaration thereof, if on the date of declaration the payment would have complied with the provisions of this Indenture; (2) the making of any Restricted Payment in the calculation exchange for, or out of the Consolidated Net Income referred proceeds of the substantially concurrent issuance and sale of, Qualified Equity Interests (other than to the Company or any of its Subsidiaries); (3) the repurchase, redemption, defeasance or other acquisition or retirement for value of Subordinated Indebtedness of the Company or any Restricted Subsidiary in exchange for, or out of the proceeds of the substantially concurrent incurrence of, Refinancing Indebtedness permitted to be incurred under Section 4.08 and the other terms of this Indenture; (a)4) the repurchase, redemption, defeasance or other acquisition or retirement for value of Equity Interests of the Company held by officers, directors or employees or former officers, directors or employees (or their transferees, estates or beneficiaries under their estates), plus (e) with respect pursuant to any Unrestricted Subsidiary equity subscription agreement, stock option agreement, stockholders’ agreement or similar agreement or benefit plan of any kind or upon their bankruptcy or petition for bankruptcy, death, disability, retirement, severance or termination of employment or service; provided that is redesignated as a Restricted Subsidiary after June 9the aggregate cash consideration paid for all such redemptions shall not exceed $4,000,000 during any calendar year (it being understood, 1997 in accordance with the definition of Unrestricted Subsidiary (however, that unused amounts permitted to be paid pursuant to this proviso are available to be carried over to subsequent calendar years, so long as the designation cash consideration applied to the redemption of Equity Interests pursuant to this Section 4.09(b)(4) shall in no event exceed $8,000,000 in any calendar year); (5) repurchases of Equity Interests deemed to occur upon the exercise of stock options or stock appreciation rights if the Equity Interests represent a portion of the exercise price thereof; (6) the repurchase of Equity Interests upon vesting of restricted stock, restricted stock units, performance share units or similar equity incentives to satisfy tax withholding or similar tax obligations with respect thereto; (7) additional Restricted Payments in an aggregate amount, when taken together with all Restricted Payments made pursuant to this Section 4.09(b)(7) and then outstanding, does not exceed $30,000,000; or (8) the payment of dividends on the Company’s Qualified Equity Interests (other than preferred stock) or the payment of any dividend to any parent of the Company to fund the payment by such parent of a dividend on such entity’s Qualified Equity Interests (other than preferred stock) of up to 6% per annum of the net proceeds received by the Company from any public equity offering after the Issue Date of such Subsidiary as an Unrestricted Subsidiary was treated as a Restricted Payment made after June 9, 1997 and only to the extent not included in the calculation of the Consolidated Net Income referred to in (a)), an amount equal to the lesser of (x) the proportionate interest Qualified Equity Interests of the Company or a Restricted Subsidiary in an amount equal contributed to the excess of (I) the total assets Company as common equity capital by any parent from any public equity offering of such SubsidiaryQualified Equity Interests of any direct or indirect parent of the Company; provided that no issuance and sale of Qualified Equity Interests pursuant to Section 4.09(b)(2) shall increase the Restricted Payments Basket, valued on an aggregate basis at except to the lesser of book value and Fair Market Value thereof, over (II) extent the total liabilities of such Subsidiary, determined in accordance with GAAP, and (y) proceeds thereof exceed the Designation Amount at amounts used to effect the time of such Subsidiary's designation as an Unrestricted Subsidiary, plus (f) $50 million minus (g) the aggregate transactions described therein. The amount of all Restricted Payments (other than Restricted Payments referred to in clause (C) of the immediately succeeding paragraph) made after June 9, 1997 through the Issue Date. (b) Clauses (ii) and (iii) of paragraph (acash) will not prohibit: (A) be the payment of any dividend within 60 days of its declaration if such dividend could have been made on the date of its declaration without violation of the provisions of this Indenture; (B) the repurchase, redemption or retirement of any shares of Capital Stock of the Company in exchange for, or out of the net proceeds of the substantially concurrent sale (other than to a Subsidiary of the Company) of, other shares of Qualified Stock; and (C) 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 Subsidiary held by officers or employees or former officers or employees of the Company or any Subsidiary (or their estates or beneficiaries under their estates) not to exceed $20 million in the aggregate since the Issue Date; provided, however, that each Restricted Payment described in clauses (A) and (B) of this sentence shall be taken into account for purposes of computing the aggregate amount of all Restricted Payments pursuant to clause (iii) of paragraph (a). (c) For purposes of determining the aggregate and permitted amounts of Restricted Payments made, the amount of any guarantee of any Investment in any Person that was initially treated as a Restricted Payment and which was subsequently terminated or expired, net of any amounts paid by the Company or any Restricted Subsidiary in respect of such guarantee, shall be deducted. (d) In determining the "fair market value of Property" for purposes of clause (iii) of the paragraph (a), Property other than cash, Cash Equivalents and Marketable Securities shall be deemed to be equal in value to the "equity value" of the Capital Stock or other securities issued in exchange therefor. The "equity value" of such Capital Stock or other securities shall be equal to (i) the number of shares of Common Equity issued in the transaction (or issuable upon conversion or exercise of the Capital Stock or other securities issued in the transaction) multiplied by the closing sale price of the Common Equity on its principal market Fair Market Value on the date of the transaction (less, in Restricted Payment of the case of Capital Stock or other securities which require the payment of consideration at the time of conversion or exercise, the aggregate consideration payable thereuponasset(s) or (ii) if the Common Equity is not then traded on the New York Stock Exchange, American Stock Exchange securities proposed to be transferred or Nasdaq National Market, or if the Capital Stock or other securities issued in the transaction do not consist of Common Equity (or Capital Stock or other securities convertible into or exercisable for Common Equity), the value of such Capital Stock or other securities as determined by a nationally recognized investment banking firm retained by the Board of Directors Company or a Restricted Subsidiary of the Company, as the case may be, pursuant to the Restricted Payment.

Limitations on Restricted Payments. (a) Until the Notes are rated Investment Grade by both Rating Agencies (after which time the following covenant will no longer be in effect), the Company will The Parent shall not, and will shall not cause or permit any Restricted Subsidiary to, directly or indirectly, make any Restricted Payment unlessif at the time of such Restricted Payment: (i1) no Default or Event of a Default shall have occurred and be continuing at the time of or immediately after giving effect to such Restricted Paymentshall occur as a consequence thereof; (ii2) immediately after giving effect the Parent cannot incur $1.00 of additional Indebtedness pursuant to the Ratio Exception; or (3) the amount of such Restricted Payment, the Company could incur at least $1.00 of Indebtedness pursuant when added to Section 3.02(a) hereof; and (iii) immediately after giving effect to such Restricted Payment, the aggregate amount of all other Restricted Payments (including the Fair Market Value of any non-cash Restricted Payment) declared or made after the Issue Measurement Date does not exceed (other than Restricted Payments made pursuant to clause (2), (3) or (5) of the next paragraph), exceeds the sum (the “Restricted Payments Basket”) of (without duplication): (a) 50% of the Consolidated Net Income of the Company on a cumulative basis during for the period (taken as one accounting period) from and including April 1, 1998 2003 to and ending on including the last day of the Company's fiscal quarter ended immediately preceding prior to the date of such Restricted Payment calculation for which consolidated financial statements are available (or in the event or, if such Consolidated Net Income shall be a deficit, minus 100% of such aggregate deficit), plus plus (b) 100% of the aggregate net cash proceeds of and the fair market value of Property received by the Company from Parent either (1x) any capital contribution as contributions to the Company common equity of the Parent after June 9the Measurement Date or (y) from the issuance and sale of Qualified Equity Interests after the Measurement Date, 1997 other than to the extent any such proceeds are used to redeem Notes in accordance with paragraph 6(b) of the Notes, plus (c) the aggregate amount by which Indebtedness of the Parent or any issue Restricted Subsidiary is reduced on the Parent’s balance sheet upon the conversion or sale after June 9, 1997 of Qualified Stock exchange (other than to any by a Subsidiary of the CompanyParent) and of Indebtedness issued subsequent to the Measurement Date into Qualified Equity Interests (2) less the issue or sale after June 9, 1997 amount of any Indebtedness cash, or other securities the fair value of assets, distributed by the Company convertible into Parent or exercisable for Qualified Stock of the Company that have been so converted any Restricted Subsidiary upon such conversion or exercisedexchange), as the case may be, plus (c) $86.0 million, which is equal to the aggregate principal amount of the Company's 6-7/8% Convertible Subordinated Notes due 2002 that were converted into the Company's Common Equity prior to the Issue Date, plus plus (d) in the case of the disposition or repayment of or return on any Investment constituting that was treated as a Restricted Payment made after the June 9, 1997Measurement Date, an amount (to the extent not included in the calculation computation of the Consolidated Net Income referred to in (a)Income) equal to the lesser of (xi) the return of capital with respect to such Investment (including by dividend, distribution or sale of Capital Stock) and (yii) the amount of such Investment that was treated as a Restricted Payment, in either case, less the cost of the disposition or repayment of such Investment (to the extent not included in the calculation and net of the Consolidated Net Income referred to in (a))taxes, plus plus (e) with respect to any upon a Redesignation of an Unrestricted Subsidiary that is redesignated as a Restricted Subsidiary after June 9(including, 1997 in accordance with for the definition avoidance of Unrestricted Subsidiary (so long as the designation of such Subsidiary as an Unrestricted Subsidiary was treated as doubt, any Joint Venture becoming a Consolidated Joint Venture which is a Restricted Payment made after June 9, 1997 and only to the extent not included in the calculation of the Consolidated Net Income referred to in (a)Subsidiary), an amount equal to the lesser of (xi) the proportionate interest of the Company or a Restricted Subsidiary in an amount equal to the excess of (I) the total assets of such Subsidiary, valued on an aggregate basis at the lesser of book value and Fair Market Value thereof, over (II) of the total liabilities of Parent’s proportionate interest in such Subsidiary, determined in accordance with GAAPSubsidiary immediately following such Redesignation, and (y) the Designation Amount at the time of such Subsidiary's designation as an Unrestricted Subsidiary, plus (f) $50 million minus (gii) the aggregate amount of all the Parent’s Investments in such Subsidiary to the extent such Investments reduced the amount available for subsequent Restricted Payments (other than Restricted Payments referred to in under this clause (C3) of the immediately succeeding paragraph) made after June 9and were not previously repaid or otherwise reduced, 1997 through the Issue Date.plus (bf) Clauses (ii) and (iii) of paragraph (a) $5.0 million. The foregoing provisions will not prohibit: : (A1) the payment by the Parent or any Restricted Subsidiary of any dividend within 60 days after the date of its declaration thereof, if such dividend could have been made on the date of its declaration without violation of the payment would have complied with the provisions of this Indenture; ; (B2) so long as no Default shall have occurred and be continuing at the repurchasetime of or as a consequence of such redemption, the redemption or retirement of any shares of Capital Stock Equity Interests of the Company Parent or any Restricted Subsidiary in exchange for, or out of the net proceeds of the substantially concurrent issuance and sale of, Qualified Equity Interests; (other than to 3) so long as no Default shall have occurred and be continuing at the time of or as a Subsidiary consequence of such redemption, the redemption of Subordinated Indebtedness of the CompanyParent or any Restricted Subsidiary (a) in exchange for, or out of the proceeds of the substantially concurrent issuance and sale of, other shares of Qualified Stock; and Equity Interests or (Cb) the purchase, redemption or other acquisition, cancellation or retirement for value of Capital Stockin exchange for, or options, warrants, equity appreciation rights or other rights to purchase or acquire Capital Stock, out of the Company proceeds of the substantially concurrent incurrence of, Refinancing Indebtedness permitted to be incurred under Section 4.06 and the other terms of this Indenture; (4) so long as no Default shall have occurred and be continuing at the time of or any Subsidiary as a consequence of such redemption, the redemption of Equity Interests of the Parent held by officers officers, directors or employees or former officers officers, directors or employees of the Company or any Subsidiary (or their transferees, estates or beneficiaries under their estates) ), upon their death, disability, retirement, severance or termination of employment or service; provided that the aggregate cash consideration paid for all such redemptions shall not to exceed $20 2.0 million in during any calendar year; or (5) repurchases of Equity Interests deemed to occur upon the aggregate since exercise of stock options if the Issue DateEquity Interests represents a portion of the exercise price thereof; provided, however, provided that each Restricted Payment described in clauses (A) no issuance and (B) sale of this sentence shall be taken into account for purposes of computing the aggregate amount of all Restricted Payments Qualified Equity Interests pursuant to clause (iii) of paragraph (a). (c) For purposes of determining the aggregate and permitted amounts of Restricted Payments made, the amount of any guarantee of any Investment in any Person that was initially treated as a Restricted Payment and which was subsequently terminated or expired, net of any amounts paid by the Company or any Restricted Subsidiary in respect of such guarantee, shall be deducted. (d) In determining the "fair market value of Property" for purposes of clause (iii) of the paragraph (a), Property other than cash, Cash Equivalents and Marketable Securities shall be deemed to be equal in value to the "equity value" of the Capital Stock or other securities issued in exchange therefor. The "equity value" of such Capital Stock or other securities shall be equal to (i) the number of shares of Common Equity issued in the transaction (or issuable upon conversion or exercise of the Capital Stock or other securities issued in the transaction) multiplied by the closing sale price of the Common Equity on its principal market on the date of the transaction (less, in the case of Capital Stock or other securities which require the payment of consideration at the time of conversion or exercise, the aggregate consideration payable thereupon2) or (ii3) if above shall increase the Common Equity is not then traded on Restricted Payments Basket, except to the New York Stock Exchange, American Stock Exchange or Nasdaq National Market, or if extent the Capital Stock or other securities issued in proceeds thereof exceed the transaction do not consist of Common Equity (or Capital Stock or other securities convertible into or exercisable for Common Equity), amounts used to effect the value of such Capital Stock or other securities as determined by a nationally recognized investment banking firm retained by the Board of Directors of the Companytransactions described therein.

Limitations on Restricted Payments. (a) Until the Notes are rated Investment Grade by both Rating Agencies (after which time the following covenant will no longer be in effect), the Company The Issuer will not, and will not cause or permit any Restricted Subsidiary of its Subsidiaries to, directly or indirectly, make any Restricted Payment unless: (ia) no Default or Event of Default shall have occurred and be continuing at the time of or immediately after giving effect to such Restricted Payment; (ii) immediately after giving effect to such Restricted Payment, the Company could incur at least $1.00 of Indebtedness pursuant to Section 3.02(a) hereof; and (iiib) immediately after giving effect to such Restricted Payment, the aggregate amount of all Restricted Payments (including the Fair Market Value fair market value of any non-cash such Restricted Payment, if other than cash, as determined in good faith by the Issuer's Board of Directors and evidenced by a resolution of such Board of Directors) declared or made after the Issue Date does not exceed the sum of (ai) 50% of the Consolidated Net Income of the Company Excess Cash Flow on a cumulative basis during the period (taken as one accounting period) from and including April January 1, 1998 2002 and ending on the last day of the CompanyIssuer's last fiscal quarter immediately preceding ending prior to the date of such Restricted Payment (or in the event such Consolidated Net Income shall be a deficit, minus 100% of such deficit)Payment, plus (bii) 100% of the aggregate net cash proceeds of of, and the fair market value of Property marketable securities (as determined in good faith by the Board of Directors and evidenced by a resolution of such Board of Directors) received by the Company from (1) any capital contribution to Issuer from, the Company after June 9, 1997 or any issue or sale after June 9January 1, 1997 2002 of Qualified Capital Stock of the Issuer (other than the issue or sale of (A) Disqualified Stock, (B) Capital Stock of the Issuer to any Subsidiary of the CompanyIssuer or (C) Capital Stock convertible (whether at the option of the Issuer or the holder thereof or upon the happening of any event) into any security other than its Capital Stock) and (2) the issue or sale after June 9, 1997 of any Indebtedness or other securities of the Company Issuer convertible into or exercisable for Qualified Capital Stock (other than Disqualified Stock) of the Company that have Issuer which has been so converted or exercised, as the case may be, plus (ciii) $86.0 million, the amount by which is equal to the aggregate principal amount Indebtedness of the CompanyIssuer is reduced on the Issuer's 6-7/8% Convertible Subordinated Notes due 2002 that were converted into balance sheet upon the Company's Common Equity prior conversion or exchange (other than by a Subsidiary of the Issuer) subsequent to the Issue Date, plus (d) in the case Date of any Indebtedness of the disposition Issuer convertible or repayment of any Investment constituting a Restricted Payment made after the June 9, 1997, an amount exchangeable for Capital Stock (to the extent not included in the calculation other than Disqualified Stock) of the Consolidated Net Income referred to in Issuer (a)) equal to the lesser of (x) the return of capital with respect to such Investment (including by dividend, distribution or sale of Capital Stock) and (y) less the amount of any cash or the fair market value of other property distributed to the Issuer upon such Investment that was treated as a Restricted Paymentconversion or exchange); PROVIDED that, notwithstanding the foregoing, (1) the Issuer and its Subsidiaries shall be permitted to make Permitted Payments and (2) the Issuer and any Subsidiary shall be permitted to make Investments in either case, less Permitted Joint Ventures if at the cost of the disposition or repayment time of such Investment and after giving effect thereto, on a pro forma basis, (X) the Issuer could incur at least $1.00 of Indebtedness (other than Permitted Indebtedness) pursuant to the extent not included in the calculation of the Consolidated Net Income referred to in clause (a)), plus ) of Section 3.9 (e) with respect to any Unrestricted Subsidiary that is redesignated as a Restricted Subsidiary after June 9, 1997 in accordance with the definition of Unrestricted Subsidiary (so long as the designation assuming for purposes of such Subsidiary as an Unrestricted Subsidiary was treated as a Restricted Payment calculation, if such Investment is made after June 9other than with borrowed funds or funds obtained from the issuance of Capital Stock specifically for the purpose of such Investment, 1997 and only to that the extent not included in the calculation of the Consolidated Net Income referred to in (a)), an amount equal to the lesser of (x) the proportionate interest of the Company or a Restricted Subsidiary Issuer incurred Indebtedness in an amount equal to the excess of (I) the total assets of such Subsidiary, valued on an aggregate basis Investment bearing interest at the lesser weighted average rate of book value and Fair Market Value thereofinterest paid by the Issuer on its outstanding Indebtedness during the four fiscal quarters most recently ended) or otherwise pursuant to clause (xi) of the definition of Permitted Indebtedness, over (II) the total liabilities of such Subsidiary, determined in accordance with GAAP, and (y) the Designation Amount at the time of such Subsidiary's designation as an Unrestricted Subsidiary, plus (f) $50 million minus (gY) the aggregate amount of all Restricted Payments (other than Restricted Payments referred Investments made pursuant to in this clause (C2), less the aggregate amount of dividends, other distributions of earnings and returns of capital received by the Issuer from such Permitted Joint Ventures in cash, does not exceed $50,000,000 and (Z) no Default or Event of Default shall have occurred and be continuing; and PROVIDED FURTHER that the immediately succeeding paragraph) made after June 9, 1997 through the Issue Date. foregoing clause (b) Clauses shall not prevent (ii) and (iii) of paragraph (a) will not prohibit: (AI) the payment of any dividend within 60 days of its declaration if such dividend could have been made on the date of its declaration without violation of the provisions of this Indenture; covenant or (BII) the redemption, repurchase, redemption retirement or retirement other acquisition of any shares of Capital Stock of the Company Issuer in exchange for, or out of the net proceeds of of, the substantially concurrent sale (other than to a Subsidiary of the CompanyIssuer) of, of other shares of Qualified Stock; and (C) 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, Stock of the Company or Issuer (other than any Subsidiary held by officers or employees or former officers or employees of the Company or any Subsidiary (or their estates or beneficiaries under their estates) not to exceed $20 million in the aggregate since the Issue DateDisqualified Stock); provided, however, PROVIDED that each Restricted Payment described in clauses (A) and (B) of this sentence shall be taken into account for purposes of computing the aggregate amount of all Restricted Payments pursuant to clause (iii) of paragraph (a). (c) For purposes of determining the aggregate and permitted amounts of Restricted Payments made, the amount of any guarantee of such net cash proceeds that are utilized for any Investment in any Person that was initially treated as a Restricted Payment and which was subsequently terminated such redemption, repurchase, retirement or expired, net of any amounts paid by the Company or any Restricted Subsidiary in respect of such guarantee, other acquisition shall be deducted. (d) In determining the "fair market value of Property" for purposes of excluded from clause (iii) of the paragraph (a), Property other than cash, Cash Equivalents and Marketable Securities shall be deemed to be equal in value to the "equity value" of the Capital Stock or other securities issued in exchange therefor. The "equity value" of such Capital Stock or other securities shall be equal to (i) the number of shares of Common Equity issued in the transaction (or issuable upon conversion or exercise of the Capital Stock or other securities issued in the transaction) multiplied by the closing sale price of the Common Equity on its principal market on the date of the transaction (less, in the case of Capital Stock or other securities which require the payment of consideration at the time of conversion or exercise, the aggregate consideration payable thereupon) or (ii) if of this paragraph (b); or (III) the Common Equity defeasance, redemption or repurchase of Indebtedness which is not then traded on subordinated in right of payment to the New York Stock Exchange, American Stock Exchange Securities with the net cash proceeds from an incurrence of Refinancing Indebtedness or Nasdaq National Market, or if the substantially concurrent sale (other than to a Subsidiary of the Issuer) of other Capital Stock of the Issuer (other than any Disqualified Stock); PROVIDED that the amount of any such net cash proceeds that are utilized for any such redemption, repurchase, retirement or other securities issued in the transaction do not consist acquisition shall be excluded from clause (ii) of Common Equity this paragraph (or Capital Stock or other securities convertible into or exercisable for Common Equityb), the value of such Capital Stock or other securities as determined by a nationally recognized investment banking firm retained by the Board of Directors of the Company.

Limitations on Restricted Payments. (a) Until the Notes are rated Investment Grade by both Rating Agencies (after which time the following covenant will no longer be in effect), the Company will The Issuer shall not, and will shall not cause or permit any Restricted Subsidiary to, directly or indirectly, make any Restricted Payment unlessif at the time of such Restricted Payment: (i1) no Default or Event of a Default shall have occurred and be continuing at the time of or immediately after giving effect to such Restricted Paymentshall occur as a consequence thereof; (ii2) immediately after giving effect to such Restricted Paymenttransaction on a pro forma basis, the Company Issuer could not incur at least $1.00 of additional Indebtedness pursuant to Section 3.02(a) hereof4.03(a); andor (iii3) immediately after giving effect to the amount of such Restricted Payment, when added to the aggregate amount of all other Restricted Payments (including the Fair Market Value of any non-cash Restricted Payment) declared or made after the Issue Date does not exceed (other than Restricted Payments made pursuant to Section 4.04(b) (2) through (7) and (9) through (15)), exceeds the sum (the “Restricted Payments Basket”) of (awithout duplication): (A) 50% of the Consolidated Net Income of the Company on a cumulative basis during for the period (taken as one accounting period) from the first day of the fiscal quarter in which Issue Date occurs to and including April 1, 1998 and ending on the last day of the Company's fiscal quarter ended immediately preceding prior to the date of such Restricted Payment calculation for which consolidated financial statements are available (or in the event or, if such Consolidated Net Income shall be a deficit, minus 100% of such aggregate deficit), plus plus (bB) 100% of the aggregate net cash proceeds or the Fair Market Value (as determined by the Board of and Directors of the fair market value Issuer) of Property any assets to be used in a Permitted Business received by the Company from Issuer either (1x) any capital contribution as contributions to the Company common equity of the Issuer after June 9the Issue Date or (y) from the issuance and sale of Qualified Equity Interests after the Issue Date (provided that such amount will not include any net cash proceeds from sales of Equity Interests to the extent utilized for any Restricted Payment pursuant to Section 4.04(b)(4)(a), 1997 plus (C) the aggregate amount by which Indebtedness of the Issuer or any issue Restricted Subsidiary is reduced on the Issuer’s balance sheet upon the conversion or sale after June 9, 1997 of Qualified Stock exchange (other than to any by a Subsidiary of the CompanyIssuer) and (2) the issue or sale after June 9, 1997 of any Indebtedness or other securities of the Company convertible into or exercisable for Qualified Stock of the Company that have been so converted or exercised, as the case may be, plus (c) $86.0 million, which is equal to the aggregate principal amount of the Company's 6-7/8% Convertible Subordinated Notes due 2002 that were converted into the Company's Common Equity prior issued subsequent to the Issue DateDate into Qualified Equity Interests (less the amount of any cash or the fair value of assets, plus distributed by the Issuer or any Restricted Subsidiary upon such conversion or exchange), plus (dD) in the case of the disposition or repayment of or return on any Investment constituting that was treated as a Restricted Payment made after the June 9, 1997Issue Date, an amount (to the extent not included in the calculation computation of the Consolidated Net Income referred to in (a)Income) equal to the lesser of (xi) the return of capital with respect to such Investment (including by dividend, distribution or sale of Capital Stock) and (yii) the amount of such Investment that was treated as a Restricted Payment, in either case, less the cost of the disposition or repayment of such Investment and net of taxes, plus (E) upon a Redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary, the lesser of (i) the Fair Market Value of the Issuer’s proportionate interest in such Subsidiary immediately following such Redesignation, and (ii) the aggregate amount of the Issuer’s Investments in such Subsidiary to the extent such Investments reduced the amount available for subsequent Restricted Payments under this Section 4.04(a)(3) and were not included in the calculation previously repaid or otherwise reduced, plus (F) 100% of the Consolidated Net Income referred principal amount of, or, if issued at a discount, the accreted value of, any guarantee by the Issuer or any Restricted Subsidiary incurred after the Issue Date that is subsequently released (other than due to in (a)a payment on such guarantee), plus (e) with respect but only to any Unrestricted Subsidiary the extent that is redesignated as a Restricted Subsidiary after June 9, 1997 in accordance with the definition of Unrestricted Subsidiary (so long as the designation of such Subsidiary as an Unrestricted Subsidiary guarantee was treated as a Restricted Payment made pursuant to this paragraph (a) when made. (b) The provisions of Section 4.04(a) shall not prohibit: (1) the payment by the Issuer or any Restricted Subsidiary of any dividend or similar distribution within 60 days after June 9the date of declaration thereof, 1997 if on the date of declaration the payment would have complied with the provisions of this Indenture; (2) the making of any Restricted Payment in exchange for, or out of the proceeds of the substantially concurrent issuance and only sale of, Qualified Equity Interests (other than to the extent not included in Issuer or any of its Subsidiaries); (3) the calculation purchase, repurchase, redemption, defeasance or other acquisition or retirement for value of Subordinated Indebtedness of the Consolidated Net Income referred Issuer or any Restricted Subsidiary in exchange for, or out of the proceeds of the substantially concurrent incurrence of, Refinancing Indebtedness permitted to in be incurred under Section 4.03 and the other terms of this Indenture; (a)), an amount equal to the lesser of (x4) the proportionate interest purchase, repurchase, redemption, defeasance or other acquisition or retirement for value of Equity Interests of the Company Issuer held by any future, present or former officers, directors or employees (or their transferees, estates or beneficiaries under their estates) of the Issuer (or a direct or indirect parent thereof) or any Restricted Subsidiary, and any dividend payment or other distribution by the Issuer or a Restricted Subsidiary to a direct or indirect parent of the Issuer to the extent utilized for the repurchase, redemption, defeasance or other acquisition or retirement for value of any Equity Interests of such direct or indirect parent held by such future, present or former officer, director or employee (or their transferees, estates or beneficiaries under their estates), in each case, pursuant to any equity subscription agreement, stock option agreement, shareholders’ agreement or similar agreement or benefit plan of any kind; provided that the aggregate cash consideration paid for all such redemptions shall not exceed $5.0 million in any calendar year (with unused amounts in any calendar year being carried over to subsequent calendar years so long as the cash consideration applied to the repurchase, redemption, defeasance or other acquisition or retirement for value of Equity Interests pursuant to this clause (4) shall in no event exceed $10.0 million in any calendar year); provided further that such amount in any fiscal year may be increased by an amount equal not to exceed: (a) the net cash proceeds received by the Issuer or any of its Restricted Subsidiaries from the sale of Equity Interests (other than Disqualified Equity Interests) of the Issuer (or a direct or indirect parent thereof to the excess extent contributed to the Issuer) to officers, directors or employees of the Issuer or any Restricted Subsidiary of the Issuer (Ior any other direct or indirect parent of the Issuer) that occurs after the Issue Date; provided that the amount of any such net cash proceeds that are utilized for any such Restricted Payment will not increase the amount available for Restricted Payments pursuant to subsection (a)(3) of this Section 4.04; plus (b) the total cash proceeds of key man life insurance policies received by the Issuer (or a direct or indirect parent thereof to the extent contributed to the Issuer) or any Restricted Subsidiary after the Issue Date to the extent actually used to repurchase, redeem, defease or otherwise acquire or retire the Equity Interests held by such key man; less (c) the amount of any Restricted Payments previously made pursuant to subsections (a) and (b) of this Section 4.04(b)(4); and provided further that cancellation of Indebtedness owing to the Issuer or any of its Restricted Subsidiaries from officers, directors, employees or consultants (or any permitted transferees thereof) of the Issuer or any Restricted Subsidiary (or a direct or indirect parent thereof) in connection with a repurchase of Equity Interests of the Issuer from such Persons will not be deemed to constitute a Restricted Payment for purposes of this covenant or any other provision of the Indenture; (5) the redemption of the 2017 Notes on the Issue Date as described in the Final Offering Memorandum under the heading “Use of Proceeds”; (6) repurchases of Equity Interests deemed to occur upon the exercise of stock options or stock appreciation rights if the Equity Interests represent a portion of the exercise price thereof; (7) the repurchase of Equity Interests upon vesting of restricted stock restricted stock units, performance share units or similar equity incentives to satisfy tax withholding or similar tax obligations with respect thereto; (8) the payment of dividends on the Issuer’s Qualified Equity Interests (other than preferred stock) (or the payment of any dividend to any parent of the Issuer to fund the payment by such parent of a dividend on such entity’s Qualified Equity Interests (other than preferred stock)) of up to 6% per annum of the net proceeds received by the Issuer from any public equity offering of such Qualified Equity Interests of the Issuer or contributed to the Issuer as common equity capital by any parent from any public equity offering of such Qualified Equity Interests of any direct or indirect parent of the Issuer (excluding public offerings of Qualified Equity Interests registered on Form S-8); (9) the distribution, as a dividend or otherwise, of Equity Interests of, or Indebtedness owed to the Issuer or a Restricted Subsidiary by, an Unrestricted Subsidiary (other than an Unrestricted Subsidiary the primary assets of which are cash and/or Cash Equivalents); (10) any purchase, repurchase, redemption, defeasance or other acquisition or retirement of Disqualified Equity Interests of the Issuer or a Restricted Subsidiary made by exchange for or out of the proceeds of the substantially concurrent sale of Disqualified Equity Interests of the Issuer or such Restricted Subsidiary, valued on an aggregate basis at as the lesser case may be, so long as such refinancing Disqualified Equity Interests is permitted to be incurred pursuant to Section 4.03 and constitutes Refinancing Indebtedness; (11) cash payments in lieu of book value and Fair Market Value thereofthe issuance of fractional shares of the Issuer’s Equity Interests upon the exercise, over conversion or exchange of any stock options, warrants, other rights to purchase Equity Interests or other convertible or exchangeable securities or any other transaction otherwise permitted by this covenant; (II12) the total liabilities declaration and payment of such Subsidiary, determined regularly scheduled or accrued dividends to holders of any class or series of Disqualified Equity Interests of the Issuer or any preferred stock of any Restricted Subsidiary of the Issuer issued on or after the date of the Indenture in accordance with GAAP, and the Ratio Exception described in Section 4.03(a); (y13) the Designation Amount purchase, repurchase, redemption, defeasance or other acquisition or retirement for value of any Subordinated Indebtedness (a) at a purchase price not greater than 101% of the time principal amount of such Subsidiary's designation Subordinated Indebtedness in the event of a Change of Control in accordance with Section 4.09 or (b) at a purchase price not greater than 100% of the principal amount thereof in accordance with Section 4.06; provided that, prior to or simultaneously with such purchase, repurchase, redemption, defeasance or other acquisition or retirement, the Issuer has made the Change of Control Offer or Asset Sale Offer, as applicable, as provided in such covenant with respect to the Securities and have completed the repurchase or redemption of all Securities validly tendered for payment in connection with such Change of Control Offer or Asset Sale Offer; (14) distributions for the purpose of making an Unrestricted SubsidiaryInvestment in a Joint Venture that, plus if such Investment were made by the Issuer, would be permitted to be made as a Permitted Investment under clause (f20) of the definition of “Permitted Investment”; provided that, any such distributions made pursuant to this Section 4.04(b)(14) shall correspondingly permanently reduce the amounts available for investment under clause (20) of the definition of “Permitted Investment”; (15) payments on intercompany Indebtedness, the incurrence of which was permitted pursuant to Section 4.03; provided, however, that no Default or Event of Default has occurred and is continuing or would otherwise result therefrom; or (16) Restricted Payments in an aggregate amount, when taken together with all Restricted Payments made pursuant to this Section 4.04(b)(16) and then outstanding, does not exceed $50 million minus 15.0 million; provided that no issuance and sale of Qualified Equity Interests pursuant to Sections 4.04(b)(2) or (g3) shall increase the aggregate Restricted Payments Basket, except to the extent the proceeds thereof exceed the amounts used to effect the transactions described therein. The amount of all Restricted Payments (other than Restricted Payments referred to in clause (C) of the immediately succeeding paragraph) made after June 9, 1997 through the Issue Date. (b) Clauses (ii) and (iii) of paragraph (acash) will not prohibit: (A) be the payment of any dividend within 60 days of its declaration if such dividend could have been made on the date of its declaration without violation of the provisions of this Indenture; (B) the repurchase, redemption or retirement of any shares of Capital Stock of the Company in exchange for, or out of the net proceeds of the substantially concurrent sale (other than to a Subsidiary of the Company) of, other shares of Qualified Stock; and (C) 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 Subsidiary held by officers or employees or former officers or employees of the Company or any Subsidiary (or their estates or beneficiaries under their estates) not to exceed $20 million in the aggregate since the Issue Date; provided, however, that each Restricted Payment described in clauses (A) and (B) of this sentence shall be taken into account for purposes of computing the aggregate amount of all Restricted Payments pursuant to clause (iii) of paragraph (a). (c) For purposes of determining the aggregate and permitted amounts of Restricted Payments made, the amount of any guarantee of any Investment in any Person that was initially treated as a Restricted Payment and which was subsequently terminated or expired, net of any amounts paid by the Company or any Restricted Subsidiary in respect of such guarantee, shall be deducted. (d) In determining the "fair market value of Property" for purposes of clause (iii) of the paragraph (a), Property other than cash, Cash Equivalents and Marketable Securities shall be deemed to be equal in value to the "equity value" of the Capital Stock or other securities issued in exchange therefor. The "equity value" of such Capital Stock or other securities shall be equal to (i) the number of shares of Common Equity issued in the transaction (or issuable upon conversion or exercise of the Capital Stock or other securities issued in the transaction) multiplied by the closing sale price of the Common Equity on its principal market Fair Market Value on the date of the transaction (lessRestricted Payment of the asset(s) or securities proposed to be transferred or issued by the Issuer or a Restricted Subsidiary of the Issuer, in as the case may be, pursuant to the Restricted Payment. The Fair Market Value of Capital Stock any assets or securities (other securities which require the payment than cash or Cash Equivalents) with a Fair Market Value of consideration at the time of conversion $10.0 million or exercise, the aggregate consideration payable thereupon) or (ii) if the Common Equity is not then traded on the New York Stock Exchange, American Stock Exchange or Nasdaq National Market, or if the Capital Stock or other securities issued in the transaction do not consist of Common Equity (or Capital Stock or other securities convertible into or exercisable for Common Equity), the value of such Capital Stock or other securities as more that are required to be valued by this Section 4.04 will be determined by a nationally recognized investment banking firm retained by the Board of Directors of the CompanyIssuer. The Board of Directors’ determination must be based upon an opinion or appraisal issued by an accounting, appraisal or investment banking firm of national standing if the Fair Market Value of such asset or security exceeds $25.0 million. For purposes of determining compliance with this Section 4.04, in the event that a Restricted Payment or Permitted Investment meets the criteria of more than one of the types of Restricted Payments or Permitted Investments described in Section 4.04(b) or the definitions thereof, the Issuer, in its sole discretion, may order and classify, and later reclassify, such Restricted Payment or Permitted Investment if it would have been permitted at the time such Restricted Payment or Permitted Investment was made and at the time of any such reclassification.